SECURITIES PURCHASE AGREEMENT
Exhibit
10.41
SECURITIES
PURCHASE AGREEMENT
(the
"Agreement"),
dated
as of April 4, 2007, by and among American Real Estate Partners, L.P., a
Delaware limited partnership with headquarters located at 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"),
and
the investors listed on the Schedule of Buyers attached hereto, as such Schedule
of Buyers may be amended to add additional investors upon executing any Joinder
Agreements (as defined herein) pursuant to Section 1(b) hereof (individually,
a
"Buyer"
and
collectively, the "Buyers").
WHEREAS:
A. The
Company and each Buyer is executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by Rule 144A and
Section 4(2) of the Securities Act of 1933, as amended (the "1933
Act"),
and
Rule 506 of Regulation D ("Regulation D")
as
promulgated by the United States Securities and Exchange Commission (the
"SEC")
under
the 1933 Act.
B. The
Company has authorized the issuance of up to $600,000,000 of Senior Convertible
Notes due 2013 (the "Notes"),
which
shall be issued pursuant to and by the provisions of an Indenture dated as
of
the Initial Closing Date (as defined below) between the Company and Wilmington
Trust Company, as trustee (the "Trustee"),
in
substantially the form attached hereto as Exhibit
A
(the
"Indenture").
The
Notes will be in the form attached to the Indenture as Exhibit A attached
thereto and shall be convertible into the depositary units representing limited
partnership units of the Company (the "Units"
and as
issued upon conversion of the Notes, the "Conversion
Units")
in
accordance with the terms thereof and of the Indenture.
C. Each
Buyer listed as an Initial Buyer on the Schedule of Buyers attached hereto
(individually, an "Initial
Buyer"
and
collectively, the "Initial
Buyers")
wishes
to purchase, and the Company wishes to sell, upon the terms and conditions
stated in this Agreement, at the Initial Closing (as defined below) $100,000,000
principal amount of Notes (which aggregate amount for both Initial Buyers shall
be $200,000,000 in the aggregate) (collectively, the "Initial Notes").
D. Subject
to the terms and conditions set forth in this Agreement, each Initial Buyer
shall have the right, from the Initial Closing Date until 5:00 p.m. New York
City time on April 13, 2007 (the "First
Option Period"),
to
purchase, and require the Company to sell, up to $200,000,000 principal amount
of Notes (which aggregate amount for both Initial Buyers shall not exceed
$400,000,000) (collectively, the "Additional
Notes").
E. Subject
to the terms and conditions set forth in this Agreement, to the extent an
Initial Buyer’s portion of the First Option was not exercised in full by such
Initial Buyer, each Initial Buyer shall have the right from and after the
expiration of the First Option Period until 5:00 p.m. New York City time on
April 25, 2007 (the "Second
Option Period"),
to
purchase, and require the Company to sell, up to a principal amount of
Additional Notes equal to the lesser of (i) $50,000,000 and (ii) the difference
calculated by subtracting (A) the aggregate principal amount of Additional
Notes
purchased by such Initial Buyer at the First Additional Closing from
(B)
$200,000,000
(which aggregate amount, for both Initial Buyers, when combined with the
principal amount of Additional Notes purchased by both Initial Buyers at the
First Additional Closing shall not exceed $400,000,000).
F. Subject
to the terms and conditions set forth in this Agreement, after the expiration
of
the First Additional Closing Date until 5:00 p.m. New York City time on May
5,
2007 (the "Third
Option Period"),
the
Company shall have the right to permit one or more additional parties (each
of
which shall become a party to this Agreement as a Buyer by executing a Joinder
Agreement) to purchase, and require the Company to sell any Additional Notes
not
previously purchased hereunder by the Initial Buyers, up to a maximum aggregate
principal amount of Additional Notes equal to $400,000,000, provided,
that,
until the expiration of the Second Option Period, the Company may not sell
any
Additional Notes for which the Initial Buyers have an option to purchase
pursuant to the Second Option.
G. Contemporaneously
with the execution and delivery of this Agreement, the parties hereto are
executing and delivering a Registration Rights Agreement, substantially in
the
form attached hereto as Exhibit
B
(as
amended or modified from time to time, the "Registration
Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
with respect to the Conversion Units under the 1933 Act and the rules and
regulations promulgated thereunder, and applicable state securities
laws.
H. The
Notes
and the Conversion Units collectively are referred to herein as the
"Securities".
NOW,
THEREFORE,
the
Company and each Buyer hereby agree as follows:
1. PURCHASE
AND SALE OF NOTES.
(a) Purchase
of Initial Notes. Subject to the satisfaction (or waiver) of the conditions
set
forth in Sections 5(a) and 6(a) below, the Company shall issue and sell to
each
Initial Buyer, and each Initial Buyer severally, but not jointly, agrees to
purchase from the Company on the Initial Closing Date (as defined below)
$100,000,000 principal amount of Notes (the "Initial
Closing").
(b) Purchase
of Additional Notes.
(i) Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 5(b)
and
6(b) below, the Company agrees to sell to each Initial Buyer, and each Initial
Buyer shall have the right to purchase (the "First
Option")
on the
First Additional Closing Date (as defined below), up to an aggregate of
$200,000,000 principal amount of Additional Notes (the "First
Additional Closing").
To
exercise the First Option, an Initial Buyer must so notify the Company in
writing (the "First
Option Exercise Notice"),
prior
to 5:00 p.m. New York City time on April 13, 2007, which First Option Exercise
Notice shall specify the principal amount of Additional Notes such Initial
Buyer
elects to purchase pursuant to the First Option.
(ii) Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 5(b)
and
6(b) below, the Company agrees to sell to each Initial Buyer, and each Initial
Buyer shall have the right to purchase (the "Second
Option")
on the
Second
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Additional
Closing Date (as defined below), up to a principal amount of Additional Notes
equal to the lesser of (i) $50,000,000 and (ii) the difference calculated
by subtracting (A) the aggregate principal amount of Additional Notes purchased
by such Initial Buyer at the First Additional Closing from (B) $200,000,000
(the
"Second
Additional Closing").
To
exercise the Second Option, an Initial Buyer must so notify the Company in
writing (the "Second
Option Exercise Notice")
on or
before the expiration of the Second Option Period, which Second Option Exercise
Notice shall specify the principal amount of Additional Notes such Initial
Buyer
elects to purchase pursuant to the Second Option.
(iii) From
and
after the expiration of the First Option Period, until the expiration of the
Third Option Period, to the extent that the Initial Buyers have not elected
to
purchase the entire $400,000,000 aggregate principal amount of Additional Notes
pursuant to the First Option and the Second Option, the Company, directly or
through a placement agent, shall be entitled to place (the "Third
Additional Closing,"
and
when referred to with the First Additional Closing and the Second Additional
Closing, each an "Additional
Closing"
and
together, the "Additional
Closings")
with
other investors (such investors, "Other
Buyers"),
such
amount of the Additional Notes not previously purchased by the Initial Buyers
on
the same terms and conditions as the Initial Buyers received at the Initial
Closing, the First Additional Closing and the Second Additional Closing;
provided,
that
until the expiration of the Second Option Period, the Company may not sell
any
Additional Notes for which the Initial Buyers have an option to purchase
pursuant to the Second Option. Subject to the satisfaction (or waiver) of the
conditions set forth in Sections 5(b) and 6(b) below, the Company agrees to
sell
to each Other Buyer, and each Other Buyer shall purchase, such amount of
Additional Notes as such Other Buyer has elected to purchase. At or prior to
the
end of the Third Option Period, each Other Buyer shall execute and deliver
to
the Company a joinder agreement in the form attached hereto as Exhibit
C
indicating the principal amount of Additional Notes to be purchased by such
Other Buyer, which the Company shall acknowledge and agree to in writing (each,
a "Joinder
Agreement").
(iv) Upon
the
execution and delivery of a Joinder Agreement by an Other Buyer and the Company,
(A) the Company shall become obligated to sell to such Other Buyer, and such
Other Buyer shall become obligated to purchase from the Company, such principal
amount of Additional Notes specified in the Joinder Agreement on the Third
Additional Closing Date and (ii) each such Other Buyer shall be deemed to be
a
"Buyer" hereunder, entitled to all rights, and subject to all obligations,
of a
Buyer. Upon consummation of each Additional Closing, the parties agree that
the
Schedule of Buyers shall be amended to reflect additional Buyers and/or the
Additional Notes purchased at each such Additional Closing. Each Other Buyer
and
each Initial Buyer that delivers an Option Exercise Notice is referred to herein
as an "Additional
Buyer"
and,
collectively, the "Additional
Buyers."
As
used herein "Business
Day"
means
any day other than a Saturday, Sunday or other day on which commercial banks
in
The City of New York are authorized or required by law to remain
closed.
(c) Closing.
The Initial Closing and the Additional Closing are each referred to in this
Agreement as a "Closing."
Each
Closing shall occur on the applicable Closing Date (as defined
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below)
at
the offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000. Subject to the satisfaction (or waiver by the Initial Buyers and
the
Company, as applicable) of the conditions set forth in Sections 5(a) and 6(a)
below, the date and time of the Initial Closing (the "Initial Closing
Date")
shall
be 10:00 a.m., New York City time, on April 5, 2007 (or such other date as
is
mutually agreed to by the Company and each Buyer). Subject to the satisfaction
(or waiver by the applicable Buyers and the Company, as applicable) of the
conditions to the First Additional Closing set forth in Section 5(b) and 6(b),
the date and time of the First Additional Closing (the "First
Additional Closing Date")
shall
be 10:00 a.m., New York City time, on April 16, 2007 (or such other date(s)
as
is mutually agreed to by the Company and the applicable Buyers). Subject to
the
satisfaction (or waiver by the applicable Buyers and the Company, as applicable)
of the conditions to the Second Additional Closing set forth in Section 5(b)
and
6(b), the date and time of the Second Additional Closing (the "Second
Additional Closing Date"),
shall
be 10:00 a.m., New York City time, on April 26, 2007 (or such other date(s)
as
is mutually agreed to by the Company and the applicable Buyers). Subject to
the
satisfaction (or waiver by the applicable Buyers and the Company, as applicable)
of the conditions to the Third Additional Closing set forth in Section 5(b)
and
6(b), the date and time of the Third Additional Closing (the "Third
Additional Closing Date,"
and
when referred to with the First Additional Closing Date and the Second
Additional Closing Date, each, an "Additional
Closing Date"
and
together, the "Additional
Closing Dates")
shall
be 10:00 am New York City time, on May 7, 2007 (or such other date(s) as is
mutually agreed to by the Company and the applicable Buyers).
(d) Purchase
Price. The purchase price for the Initial Notes to be purchased by each Initial
Buyer at the Initial Closing (the "Initial
Notes Purchase
Price")
shall
be $100,000,000. If purchased by an Additional Buyer at an Additional Closing,
Additional Notes shall be sold at a purchase price of $1.00 for each $1.00
of
principal amount of Additional Notes to be purchased by such Additional Buyer
at
such Additional Closing Date, plus, in each case, accrued interest on such
Additional Notes from the preceding interest payment date, or if no interest
has
been paid on the Additional Notes, from the Initial Closing Date.
(e) Form
of
Payment. On each Closing Date, (i) each Buyer shall pay its applicable purchase
price contemplated pursuant to Section 1(d) above to the Company for the Notes
to be issued and sold to such Buyer at such Closing, by wire transfer of
immediately available funds in accordance with the Company's written wire
instructions, and (ii) the Company shall deliver or caused to be delivered
to each Buyer the Notes (for the account of such Buyer as such Buyer shall
instruct) which such Buyer is then purchasing, duly executed on behalf of the
Company and registered in the name of such Buyer or its designee.
2. BUYER'S
REPRESENTATIONS AND WARRANTIES.
Each
Buyer, severally and not jointly, represents and warrants, as of the date hereof
and as of the Initial Closing Date with respect to each Initial Buyer, and
as of
the date of each Additional Closing Date with respect to each Additional Buyer
purchasing Additional Notes on such Additional Closing Date, that:
(a) No
Public
Sale or Distribution. Such Buyer is (i) acquiring the Notes and (ii) upon
conversion of the Notes, will acquire the Conversion Units issuable upon
conversion of the Notes, in each case, for its own account and not with a view
towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the 1933
Act;
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provided,
however, that by making the representations herein, such Buyer does not agree
to
hold any of the Securities for any minimum or other specific term and reserves
the right to dispose of the Securities at any time in accordance with or
pursuant to a registration statement or an exemption under the 1933 Act. Such
Buyer acknowledges that it is not purchasing the Notes as a result of any
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar media or broadcast over radio or television,
or
any seminar or meeting whose attendees have been invited by general solicitation
or general advertising. Such Buyer further acknowledges, to its knowledge,
that
it is not purchasing the Notes as a result of any general solicitation or
general advertising, as such terms are used in Regulation D under the 1933
Act.
Such Buyer is acquiring the Securities hereunder in the ordinary course of
its
business. Such Buyer does not presently have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the Securities.
As
used in this Agreement, "Person"
means
an individual, a limited liability company, a partnership, a joint venture,
a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
(b) Accredited
Investor Status. Such Buyer is an "accredited investor" as that term is defined
in Rule 501(a) of Regulation D and a "qualified institutional buyer" within
the
meaning of Rule 144A under the 1933 Act.
(c) Reliance
on Exemptions. Such Buyer 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 such Buyer's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of such Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of such Buyer to acquire
the
Securities.
(d) Information.
Such Buyer and its advisors, if any, have been furnished with all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been requested
by
such Buyer. Such Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. Neither such inquiries nor any
other due diligence investigations conducted by such Buyer or its advisors,
if
any, or its representatives shall modify, amend or affect such Buyer's right
to
rely on the Company's representations and warranties contained herein. Such
Buyer understands that its investment in the Securities involves a high degree
of risk. Such Buyer 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 Securities.
(e) No
Governmental Review. Such Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Securities or the fairness or
suitability of the investment in the Securities nor have such authorities passed
upon or endorsed the merits of the offering of the Securities.
(f) Validity;
Enforcement. This Agreement and the Registration Rights Agreement have been
duly
and validly authorized, executed and delivered on behalf of such Buyer and
shall
constitute the legal, valid and binding obligations of such Buyer enforceable
against such Buyer in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the enforcement of applicable creditors' rights and remedies.
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other similar laws relating to, or affecting generally, the enforcement of applicable creditors' rights and remedies.
(g) No
Conflicts. The execution, delivery and performance by such Buyer of this
Agreement and the Registration Rights Agreement and the consummation by such
Buyer of the transactions contemplated hereby and thereby will not (i) result
in
a violation of the organizational documents of such Buyer or (ii) conflict
with,
or constitute a default (or an event which with notice or lapse of time or
both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which such Buyer is a party, or (iii) result in a violation of
any
law, rule, regulation, order, judgment or decree (including federal and state
securities laws) applicable to such Buyer, except in the case of clauses (ii)
and (iii) above, for such conflicts, defaults, rights or violations which would
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the enforceability of this Agreement or the Registration
Rights Agreement or ability of such Buyer to perform its obligations hereunder
or thereunder.
(h) Residency.
Such Buyer is a resident of that jurisdiction specified below its address on
the
Schedule of Buyers.
(i) No
Short
Positions. No Initial Buyer purchasing Initial Notes, and no Additional Buyer
purchasing Additional Notes, has any direct or indirect short position in the
Units or any type of direct or indirect forward contracts, options, puts, swaps,
"put equivalent positions" (as such term is defined in Rule 16a-1(h) of the
0000
Xxx) or similar arrangements with respect to the Units.
(j) Manipulation
of Price. No Initial Buyer purchasing Initial Notes, and no Additional Buyer
purchasing Additional Notes, has, and to its knowledge no one acting on its
behalf has, taken, directly or indirectly, any action designed to cause or
to
result in the stabilization or manipulation of the price of any security of
the
Company in connection with the purchase or any resale of any of the Securities
by such Buyer.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to each of the Initial Buyers, as of the date
hereof and as of the Initial Closing Date, and to each Additional Buyer as
of
the date of each Additional Closing Date on which such Additional Buyer is
purchasing Additional Notes, that:
(a) Organization
and Qualification. The Company is duly organized and validly existing and in
good standing under the laws of the State of Delaware, and has the requisite
power and authorization to own its properties and to carry on its business
as
now being conducted. The Company is duly qualified as a foreign entity to do
business and is in good standing in every jurisdiction in which its ownership
of
property or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in
good standing would not reasonably be expected to have a Material Adverse
Effect. As used in this Agreement, "Material
Adverse Effect"
means
any material adverse effect on the business, properties, assets, operations,
results of operations or condition (financial or otherwise) of the Company
and
its subsidiaries, taken as a whole, or on the transactions contemplated hereby
or in the other Transaction Documents (as defined
-6-
below)
or
by the agreements and instruments to be entered into in connection herewith
or
therewith, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents.
(b) Authorization;
Enforcement; Validity. The Company has the requisite power and authority to
enter into and perform its obligations under this Agreement, the Indenture,
the
Notes and the Registration Rights Agreement (collectively, the "Transaction
Documents")
and to
issue the Securities in accordance with the terms hereof and thereof. The
execution and delivery of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby,
including, without limitation, the issuance of the Notes and the reservation
for
issuance and the issuance of the Conversion Units issuable
upon conversion of the Notes have been duly authorized by its general partner
and (other than the filing with the SEC of one or more Registration Statements
in accordance with the requirements of the Registration Rights Agreement) no
further authorization is required by the Company, its general partner or its
equityholders. This Agreement and the other Transaction Documents of even date
herewith have been duly executed and delivered by the Company, and constitute
the legal, valid and binding obligations of the Company, enforceable against
the
Company 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 applicable creditors' rights and
remedies.
(c) Issuance
of Securities. As of each Closing, a number of Units shall have been duly
authorized and reserved for issuance, free of pre-emptive rights, sufficient
for the purpose of enabling the
Company
to satisfy all obligations to issue the Conversion Units upon
conversion of all of the Notes. Upon conversion in accordance with the
Indenture, the Conversion Units will be validly issued and free from all
preemptive or similar rights, taxes, liens and charges with respect to the
issue
thereof, with the holders being entitled to all rights accorded to a holder
of
Units. Assuming the accuracy of the representations of the Buyers contained
in
Section 2 hereof and their compliance with the agreements set forth therein,
the
issuance by the Company of the Notes pursuant to this Agreement, and the
issuance by the Company of the Conversion Units upon conversion of the Notes
in
accordance with the terms of the Notes and the Indenture, are exempt from
registration under the 1933 Act.
(d) No
Conflicts. The execution, delivery and performance of the Transaction Documents
by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance
of
the Notes and reservation for issuance and issuance of the Conversion Units)
will not (i) result in a violation of the Certificate of Limited Partnership
or
the Company's Limited Partnership Agreement (each as defined in Section 3(x))
or
any equity securities of the Company or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become
a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to
which
the Company or any of its Subsidiaries is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations and the rules and regulations
of the New York Stock Exchange (the "Principal
Market"))
applicable to the Company or by which any property or asset of the Company
is
bound or affected, except, in the case of clauses (ii) and (iii), as would
not
reasonably be expected to have a Material Adverse Effect.
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(e) Consents.
The Company is not required to obtain any consent, authorization or order of,
or
make any filing or registration with, any court, governmental agency or any
regulatory or self-regulatory agency or any other Person in order for it to
execute, deliver or perform any of its obligations under or contemplated by
the
Transaction Documents, in each case in accordance with the terms hereof or
thereof, except for any such consent, authorization, order, filing or
registration the failure to obtain or make would not reasonably be expected
to
have a Material Adverse Effect. All consents, authorizations, orders, filings
and registrations which the Company is required to obtain pursuant to the
preceding sentence have been obtained or effected on or prior to each Closing
Date, and the Company and its Subsidiaries are unaware of any facts or
circumstances which might prevent the Company from obtaining or effecting any
of
the registration, application or filings pursuant to the preceding
sentence.
(f) Acknowledgment
Regarding Buyer's Purchase of Securities. The Company acknowledges that no
Buyer
is acting as a financial advisor or fiduciary of the Company or any of its
subsidiaries (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated hereby and thereby, and any advice
given by a 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 such Buyer's purchase of the Securities. The Company
further represents to each 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.
(g) No
General Solicitation. Neither the Company nor any Person acting on its behalf,
has engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D) in connection with the offer or sale of the
Securities.
(h) No
Integrated Offering. Neither the Company nor any Person acting on its behalf
has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that would require
registration of any of the Securities under the 1933 Act or cause this offering
of the Securities to be integrated with prior offerings by the Company for
purposes of the 1933 Act or any applicable equityholder approval provisions,
including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company
are
listed or designated.
(i) Form
S-3
Eligibility. The Company is eligible to register the Conversion Units for resale
by the Buyers using Form S-3 promulgated under the 1933 Act.
(j) Rule
144A. The Notes satisfy the requirements set forth in Rule l44A(d)(3) under
the
1933 Act.
(k) Trust
Indenture Act. Assuming the accuracy of the representations of the Buyers
contained in Section 2 hereof and their compliance with the agreements set
forth
therein, it is not necessary in connection with the offer, sale and delivery
of
the Securities in the manner contemplated by this Agreement to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the "TIA").
(l) Dilutive
Effect. The Company understands and acknowledges that the number of Conversion
Units issuable upon conversion of the Notes will increase in certain
circumstances. The Company further acknowledges that its obligation to issue
Conversion Units upon
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conversion
of the Notes in accordance with this Agreement, the Indenture and the Notes,
absolute and unconditional regardless of the dilutive effect that such issuance
may have on the ownership interests of other equityholders of the
Company.
(m) Application
of Takeover Protections; Poison Pill. The Company and its general partner have
taken all necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the
Certificate of Limited Partnership, the Company's Limited Partnership Agreement
or the laws of the State of Delaware which is or could become applicable to
any
Buyer as a result of the transactions contemplated by this Agreement, including,
without limitation, the Company's issuance of the Securities and any Buyer's
ownership of the Securities. The Company has not adopted a poison pill or
similar arrangement relating to accumulations of beneficial ownership of Units
or a change in control of the Company.
(n) SEC
Documents; Financial Statements. During the two (2) years up to and including
the date hereof, the Company has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the 1934 Act (all of the foregoing filed during
the 12 months prior to the applicable Closing Date, including all documents
incorporated by reference therein being hereinafter referred to as the
"SEC
Documents").
As of
their respective dates, the SEC Documents complied in all material respects
with
the requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to
be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. As of
their respective dates, the financial statements of the Company included in
the
SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with
respect thereto. Such financial statements have been prepared in accordance
with
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case
of
unaudited statements, to normal year-end audit adjustments).
(o) Absence
of Certain Changes. Except as disclosed in the SEC Documents or in Schedule
3(o), since December 31, 2006, there has been no material adverse change and
no
material adverse development in the business, assets, properties, operations,
condition (financial or otherwise) or results of operations of the Company
or
its subsidiaries, taken as a whole. The Company has not has taken any steps
to
seek protection pursuant to any bankruptcy law nor does the Company have any
knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy proceedings or any actual knowledge of any fact which would
reasonably lead a creditor to do so. The Company and its subsidiaries, on a
consolidated basis, are not as of the date hereof, and after giving effect
to
the transactions contemplated hereby to occur at each Closing, will not be
Insolvent (as defined below). For purposes of this Section 3(o), "Insolvent"
means,
with respect to any Person (i) the present fair saleable value of the such
Person's assets is less than the amount required to pay such Person's total
Indebtedness (as defined in Section 3(v)), (ii) such Person is unable to pay
its
debts and liabilities, subordinated,
-9-
contingent
or otherwise, as such debts and liabilities become absolute and matured, (iii)
such Person intends to incur or believes that it will incur debts that would
be
beyond its ability to pay as such debts mature or (iv) such Person has
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be
conducted.
(p) Conduct
of Business; Regulatory Permits. The Company is not in violation of any term
of
or in default under its Certificate of Limited Partnership or Limited
Partnership Agreement. The Company is not in violation of any judgment, decree
or order or any statute, ordinance, rule or regulation applicable to the
Company, except for possible violations which would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. Without
limiting the generality of the foregoing, the Company is not in violation of
any
of the rules, regulations or requirements of the Principal Market except for
violations which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Since December 31, 2004 (i) the
Units has been designated for quotation on the Principal Market, (ii) trading
in
the Units has not been suspended by the SEC or the Principal Market and (iii)
the Company has received no written communication from the SEC or the Principal
Market regarding the suspension or delisting of the Units from the Principal
Market.
(q) Foreign
Corrupt Practices. Neither the Company, nor any director, officer, agent,
employee or other Person acting on behalf of the Company, in the course of
its
actions for, or on behalf of, the Company, has (i) used any partnership funds
for any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
partnership funds; (iii) violated or is in violation of any provision of the
U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic government official or employee.
(r) Money
Laundering. The operations of the Company are and have been conducted at all
times in compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as
amended, applicable money laundering statutes and applicable rules and
regulations thereunder (collectively, the "Money
Laundering Laws"),
and
no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the
Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(s) OFAC.
Neither the Company nor, to the knowledge of the Company, any director, officer,
agent or employee of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department ("OFAC");
and
the Company will not, directly or indirectly, use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other Person, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered
by
OFAC.
(t) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the Company, the Company's
general partner or any of the Company's directors or officers, in their
capacities as such, to comply in all material respects with any provision of
the
Xxxxxxxx-Xxxxx Act of
-10-
2002,
as
in effect at the applicable time, and the rules and regulations promulgated
in
connection therewith (the "Xxxxxxxx-Xxxxx
Act"),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(u) Internal
Accounting and Disclosure Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset and liability accountability, (iii)
access to assets or incurrence of liabilities is permitted only in accordance
with management's general or specific authorization and (iv) the recorded
accountability for assets and liabilities is compared with the existing assets
and liabilities at reasonable intervals and appropriate action is taken with
respect to any difference. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 under the 0000 Xxx) that
are
effective in ensuring that information required to be disclosed by the Company
in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in the
rules and forms of the SEC, including, without limitation, controls and
procedures designed in to ensure that information required to be disclosed
by
the Company in the reports that it files or submits under the 1934 Act is
accumulated and communicated to the Company's management, including its
principal executive officer or officers and its principal financial officer
or
officers, as appropriate, to allow timely decisions regarding required
disclosure. Except as set forth on Schedule 3(u), during the twelve months
prior
to the date hereof, the Company has not received any notice or correspondence
from its independent accountant relating to any potential material weakness
in
any part of the system of internal accounting controls of the
Company.
(v) Equity
Capitalization. As of the date hereof, the authorized equity securities of
the
Company consists of (i) 69,358,353 Units, of which as of the date hereof,
61,856,830 are issued and outstanding, 1,137,200 Units are issued and held
as
treasury units, no Units are reserved for issuance pursuant to the Company's
option and purchase plans and no Units are reserved for issuance pursuant to
securities (other than the Notes) exercisable or exchangeable for, or
convertible into, Units and (ii) 12,100,000 preferred units, of which as of
the
date hereof, 11,907,073 of which is issued and outstanding or reserved for
issuance. The Conversion Units shall have those rights, preferences, privileges
and restrictions governing the Units as set forth in the Limited Partnership
Agreement. All of such outstanding Units have been validly issued. Except as
disclosed in Schedule 3(v): (i) none of the Company's equity securities is
subject to preemptive rights or any other similar rights or any liens or
encumbrances suffered or permitted by the Company; (ii) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into,
or
exercisable or exchangeable for, any equity securities of the Company, or
contracts, commitments, understandings or arrangements by which the Company
is
or may become bound to issue additional equity securities of the Company or
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into,
or
exercisable or exchangeable for, any equity securities of the Company; (iii)
there are no agreements or arrangements under which the Company is obligated
to
register the sale of any of its equity securities under the 1933 Act (except
pursuant to the Registration Rights Agreement); (iv) there are no outstanding
equity securities of the Company which contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company is or may become bound to redeem an equity
security of the Company; (v) there are no equity securities containing
anti-dilution or similar provisions that will be triggered by the issuance
of
the Securities; and (vi) the
-11-
Company
does not have any stock appreciation rights or "phantom stock" or "phantom
equity" plans or agreements or any similar plan or agreement.
(w) Absence
of Litigation. Except as set forth in Schedule 3(w) and as set forth in the
"Risk Factors" and "Legal Proceedings" sections of the Company's Annual Report
on Form 10-K/A for the fiscal year ended December 31, 2006, there is no action,
suit, proceeding, inquiry or investigation before or by the Principal Market,
any court, public board, government agency, self-regulatory organization or
body
pending or, to the knowledge of the Company, threatened against or affecting
the
Company, the Units or any of the Company's officers or directors in their
capacities as such, whether of a civil or criminal nature of otherwise which
could reasonably be expected to have a Material Adverse Effect.
(x) Tax
Status. The Company (i) has made or filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject except where the failure to so file could not reasonably
be expected to have a Material Adverse Effect, (ii) has paid all taxes and
other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith except where failure to pay such taxes could
not
reasonably be expected to have a Material Adverse Effect and (iii) to the extent
required by GAAP, has set aside on its books provision reasonably adequate
for
the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company have not received written notice of any such
claim.
(y) Ranking
of Notes. Except as set forth on Schedule 3(y), no Indebtedness of the Company
is expressly senior to the Notes in right of payment, whether with respect
of
payment of redemptions, interest, damages or upon liquidation or dissolution
or
otherwise.
(z) Independent
Accountants. Xxxxx Xxxxxxxx LLP, who have certified the consolidated financial
statements of the Company as of December 31, 2006, are independent public
accountants within the meaning of the 1933 Act.
(aa) Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other
relationship between the Company and an unconsolidated or other off balance
sheet entity that is required to be disclosed by the Company in its 1934 Act
filings and is not so disclosed or that otherwise would be reasonably likely
to
have a Material Adverse Effect.
(bb) Investment
Company. The Company is not and, after giving effect to the offering and sale
of
the Securities and the application of the proceeds thereof, will not become
an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for an investment company, within the meaning of the Investment
Company Act of 1940, as amended.
(cc) Manipulation
of Price. The Company has not, and to its knowledge no one acting on its behalf
has, taken, directly or indirectly, any action designed to cause or to result
in
the stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of any of the Securities.
-12-
(dd) Transfer
Taxes. On each applicable Closing Date, all stock transfer or other taxes (other
than income or similar taxes) which are required to be paid in connection with
the sale and transfer of the Securities to be sold to each Buyer hereunder
will
be, or will have been, fully paid or provided for by the Company, and all laws
imposing such taxes will be or will have been complied with.
(ee) Disclosure.
All disclosure provided to the Buyers regarding the Company and its
Subsidiaries, their business and the transactions contemplated hereby,
considered as a whole, including the Schedules to this Agreement, furnished
by
or on behalf of the Company is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. No event or circumstance has
occurred or information exists with respect to the Company or its business,
properties, operations or financial conditions, which, under applicable law,
rule or regulation, requires public disclosure or announcement by the Company
but which has not been so publicly announced or disclosed.
(ff) MLP
Status. The Company met for the taxable year ended December 31, 2005, and the
Company expects to meet for the taxable years ending December 31, 2006 and
December 31, 2007, the gross income requirements of Section 7704(c)(2) of the
Code, and accordingly the Company does not reasonably expect to be, taxed as
a
corporation for U.S. federal income tax purposes or for applicable tax purposes.
The Company indicated in the Form K-1 for the year ended December 31, 2006,
that
its equityholders may be subject to state income taxes in the jurisdictions
set
forth on Schedule 3(ff) attached hereto.
4. COVENANTS.
(a) Best
Efforts. Each party shall use its best efforts timely to satisfy each of the
conditions to be satisfied by it as provided in Sections 5 and 6 of this
Agreement.
(b) Form
D
and Blue Sky. The Company agrees to file a Form D with respect to the Securities
as required under Regulation D. The Company shall, on or before each Closing
Date, take such action as the Company shall reasonably determine is necessary
in
order to obtain an exemption for or to qualify the Securities for sale to the
Buyers at such Closing pursuant to this Agreement under applicable securities
or
"Blue Sky" laws of the states of the United States (or to obtain an exemption
from such qualification). The Company shall make all filings and reports
relating to the offer and sale of the Securities required under applicable
securities or "Blue Sky" laws of the states of the United States following
the
applicable Closing Date.
(c) Financial
Information. For so long as any Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the 1933
Act,
the Company will, during any period in which it is not subject to Section 13
or
15(d) under the 1934 Act, make available to each Buyer and any holder of
Securities in connection with any sale thereof and any prospective purchaser
of
Securities and securities analysts, in each case upon request, the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the 1933
Act (or any successor thereto).
(d) Fees
and
Expenses.
(i) The
Company shall be responsible for the payment of any placement agent's fees
or
commissions, financial advisory fees, or broker's commissions
-13-
(other
than for Persons engaged by any Buyer) relating to or arising out of the
transactions contemplated hereby. The Company shall pay, and hold each Buyer
harmless against, any liability, loss or expense (including, without limitation,
reasonable attorney's fees and out-of-pocket expenses) arising in connection
with any claim relating to any such payment. In addition to the foregoing (and
without duplication), the Company agrees to pay Portside Growth &
Opportunity Fund (an Initial Buyer) ("Portside") or
its
designee(s) for all reasonable costs and expenses, not to exceed $275,000,
incurred in connection with the transactions contemplated by the Transaction
Documents (including all reasonable legal fees and disbursements in connection
therewith, documentation and implementation of the transactions contemplated
by
the Transaction Documents and due diligence in connection therewith), which
amount may be withheld by Portside from its Initial Notes Purchase Price at
the
Initial Closing. Except as otherwise set forth in the Transaction Documents,
each party to this Agreement shall bear its own expenses in connection with
the
sale of the Securities to the Buyers.
(ii) Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company shall pay or cause to be paid all costs
and
expenses incident to the performance of its obligations hereunder, including
without limitation, all fees, costs and expenses (A) incident to the
preparation, issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (B) incurred in connection with the
registration or qualification and determination of eligibility for investment
of
the Securities under the laws of such jurisdictions as the Buyers may reasonably
designate, (C) in connection with the admission for trading of the Notes on
any
securities exchange or inter-dealer quotation system (as well as in connection
with the admission of the Notes for trading in the Private Offerings, Resales
and Trading through Automatic Linkages ("PORTAL")
system
of the National Association of Securities Dealers, Inc. ("NASD") or
any
appropriate market system) and (D) in connection with satisfying its obligations
under Section 4(b).
(e) Pledge
of
Securities. The Company acknowledges and agrees that the Securities may be
pledged by a Holder (as defined in the Registration Rights Agreement) in
connection with a bona fide margin agreement or other loan or financing
arrangement that is secured by the Securities. The pledge of Securities shall
not be deemed to be a transfer, sale or assignment of the Securities hereunder,
and no Buyer effecting a pledge of Securities shall be required to provide
the
Company with any notice thereof or otherwise make any delivery to the Company
pursuant to this Agreement or any other Transaction Document. The Company hereby
agrees to execute and deliver such documentation as a pledgee of the Securities
may reasonably request in connection with a pledge of the Securities to such
pledgee by a Buyer.
(f) Disclosure
of Transactions and Other Material Information. On or before 8:30 a.m., New
York
Time, on April
5,
2007, the Company shall issue a press release (the "Initial
Press Release")
and
file a Current Report on Form 8-K describing the terms of the transactions
contemplated by the Transaction Documents in the form required by the 1934
Act
and attaching the Transaction Documents as exhibits to such filing (including
all attachments, the "Initial
8-K Filing").
On or
before 8:30 a.m., New York City Time, on the first Business Day following each
Additional Closing Date, the Company shall issue a press release (each an
"Additional
Press Release",
and
together with the Initial Press Release the "Press
Releases")
and
file a Current Report on Form 8-K with the SEC describing the
-14-
transactions
to be consummated pursuant thereto (the "Additional
8-K Filing,"
and
together with the Initial 8-K Filing, the "8-K
Filings").
The
Company shall not, and shall cause its officers, directors, employees and
agents, not to, provide any Buyer with any material, nonpublic information
regarding the Company or any of its subsidiaries from and after the filing
of
the Initial 8-K Filing with the SEC without the express written consent of
such
Buyer. Subject to the foregoing, neither the Company, its Subsidiaries nor
any
Buyer shall issue any press releases or any other public statements with respect
to the transactions contemplated hereby; provided, however, that the Company
shall be entitled, without the prior approval of any Buyer, to make any press
release or other public disclosure with respect to such transactions (i) in
substantial conformity with the 8-K Filings and contemporaneously therewith
and
(ii) as is required by applicable law and regulations (provided that in the
case
of clause (i) each Buyer shall be consulted by the Company in connection with
any such press release or other public disclosure prior to its release). Without
the prior written consent of any applicable Buyer, other than in the 8-K Filings
and the Press Releases (which shall be subject to the reasonable approval of
the
Initial Buyers), neither the Company nor any of its subsidiaries or affiliates
shall disclose the name of such Buyer in any public filing, public announcement,
press release or similar public disclosure, unless such disclosure is required
by law, regulation or the Principal Market.
(g) Additional
Notes. For so long as any Notes remain outstanding, the Company will not issue
any Notes under the Indenture other than as contemplated hereby and
thereby.
(h) Reservation
of Units. The Company shall take all action necessary to at all times have
authorized, and reserved for the purpose of issuance, free of pre-emptive
rights, after the Initial Closing Date, a number of
Units
sufficient for the purpose of enabling the Company to satisfy all obligations
to
issue the Conversion Units upon
conversion of all of the outstanding Notes.
(i) Regulation
M. The Company will not take any action prohibited by Regulation M under the
1934 Act, in connection with the distribution of the Securities contemplated
hereby.
(j) General
Solicitation. Neither the Company nor any person acting on behalf of the Company
will solicit any offer to buy or offer or sell the Securities by means of any
form of general solicitation or general advertising within the meaning of
Regulation D, including: (i)
any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio;
and
(ii)
any
seminar or meeting whose attendees have been invited by any general solicitation
or general advertising.
(k) Integration.
Neither the Company nor any person acting on behalf of the Company will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of
any
security (as defined in the 1933 Act) which will be integrated with the sale
of
the Securities or the Conversion Units in a manner which would require the
registration under the 1933 Act of the Securities or
require equityholder approval under the rules and regulations of the
Principal
Market.
(l) Lock-Up.
-15-
(i) For
purposes of this Section 4(l), the following definitions shall
apply.
(1) "Convertible
Securities"
means
any stock or securities (other than Options) convertible into or exercisable
or
exchangeable for Units or other equity securities of the Company.
(2) "Options"
means
any rights, warrants or options to subscribe for or purchase Units, other equity
securities of the Company or Convertible Securities.
(3) "Unit
Equivalents"
means,
collectively, Options and Convertible Securities.
(4) From
the
date hereof until the date that is ninety (90) days following the Initial
Closing Date, the Company hereby agrees that, it will not sell, agree to sell,
or contract to sell, any Units or any Unit Equivalents. The foregoing sentence
shall not apply to (A) the sale of the Notes as contemplated by this Agreement
or the issuance of the Conversion Units, (B) in connection with any employee
benefit plan which has been approved by the Board of Directors of the general
partner of the Company, pursuant to which the Company's securities may be issued
to any employee, officer or director for services provided to the Company,
(C)
the issuance by the Company of any Units upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof (provided
that the terms relating to pricing or the number of Units issuable upon exercise
of such options or warrants are not amended or modified in any manner after
the
date hereof) or an option or warrant issued or granted in compliance with this
paragraph, (D) the sale of Units in a bona fide firm commitment
underwritten offering with a nationally recognized underwriter if the price
per
share in such offering exceeds 115% of the Conversion Price (other than an
"at-the-market offering" as defined in Rule 415(a)(4) under the 1933 Act and
"equity lines"); (E) the entry into an agreement to issue and the issuance
of, Units, other equity securities of the Company or Unit Equivalents in
exchange for assets or equity securities of another entity to be acquired by
the
Company, the
primary purpose of which is not to raise equity capital
and (F)
the issuance of preferred units distributed as dividends on preferred units
which are currently outstanding. In addition, the Company agrees to obtain
lock-up agreements with each of its executive officers and directors who own
equity securities of the Company in substantially the form attached hereto
as
Exhibit
G.
5. CONDITIONS
TO THE COMPANY'S OBLIGATION TO SELL.
(a) Initial
Closing Date. The obligation of the Company hereunder to issue and sell the
Initial Notes to each Initial Buyer at the Initial Closing is subject to the
satisfaction, at or before the Initial Closing Date, of each of the following
conditions, provided that these conditions are for the Company's sole benefit
and may be waived by the Company at any time in its sole discretion by providing
each Initial Buyer with prior written notice thereof:
(i) Such
Initial Buyer shall have executed each of the Transaction Documents to which
it
is a party and delivered the same to the Company.
-16-
(ii) Such
Initial Buyer and each other Initial Buyer shall have delivered to the Company
the Initial Notes Purchase Price (less any amounts withheld pursuant to Section
4(d)) for the Initial Notes being purchased by such Initial Buyer at the Initial
Closing by wire transfer of immediately available funds pursuant to the wire
instructions provided by the Company.
(iii) The
representations and warranties of such Initial Buyer shall be true and correct
in all material respects as of the date when made and as of the Initial Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date), and such Initial Buyer shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by such Initial Buyer at or prior to the Initial Closing Date.
(b) Additional
Closing Dates. The obligation of the Company hereunder to issue and sell
Additional Notes to each of the applicable Additional Buyers at each Additional
Closing is subject to the satisfaction, at or before the applicable Additional
Closing Date, of each of the following conditions, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion by providing each Additional Buyer with
prior
written notice thereof:
(i) Such
Additional Buyer and each other applicable Additional Buyer shall have delivered
to the Company the purchase price contemplated pursuant to Section 1(d) for
the
Additional Notes being purchased by such Additional Buyer at such Additional
Closing by wire transfer of immediately available funds pursuant to the wire
instructions provided by the Company.
(ii) The
representations and warranties of such Additional Buyer shall be true and
correct in all material respects as of the date when made and as of such
Additional Closing Date as though made at that time (except for representations
and warranties that speak as of a specific date), and such Additional Buyer
shall have performed, satisfied and complied in all material respects with
the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by such Additional Buyer at or prior to such
Additional Closing Date.
6. CONDITIONS
TO EACH BUYER'S OBLIGATION TO PURCHASE.
(a) Initial
Closing Date. The obligation of each Initial Buyer hereunder to purchase the
Initial Notes at
the
Initial Closing is subject to the satisfaction, at or before the Initial Closing
Date, of each of the following conditions, provided that these conditions are
for each Initial Buyer's sole benefit and may be waived by such Initial Buyer
at
any time in its sole discretion by providing the Company with prior written
notice thereof:
(i) The
Company shall have executed and delivered to such Initial Buyer (i) each of
the Transaction Documents and (ii) the Initial Notes (for the
-17-
account
of such Initial Buyer as such Initial Buyer shall instruct) being purchased
by
such Initial Buyer at the Initial Closing pursuant to this
Agreement.
(ii) Such
Initial Buyer shall have received the opinion of Proskauer Rose LLP, the
Company's outside counsel, dated as of the Initial Closing Date, in
substantially the form of Exhibit
D
attached
hereto.
(iii) The
Company shall have delivered to such Initial Buyer a certificate evidencing
the
formation and good standing of the Company issued by the Secretary of State
of
Delaware, as of a date within ten (10) days of the Initial Closing
Date.
(iv) The
Company shall have delivered to such Initial Buyer a certificate evidencing
the
Company's qualification as a foreign entity and good standing issued by the
Secretary of State (or comparable office) of each jurisdiction in which the
Company conducts business and is required to so qualify, as of a date within
ten
(10) days of the Initial Closing Date.
(v) The
Company shall have delivered to such Initial Buyer a certified copy of the
Certificate of Limited Partnership as certified by the Secretary of State of
the
State of Delaware within ten (10) days of the Initial Closing Date.
(vi) The
Company shall have delivered to such Initial Buyer a certificate, executed
by
the Secretary of the general partner of the Company and dated as of the Initial
Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted
by the Company's general partner in a form reasonably acceptable to such Initial
Buyer, (ii) the Certificate of Limited Partnership and (iii) the Limited
Partnership Agreement, each as in effect at the Initial Closing, in the form
attached hereto as Exhibit E.
(vii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date when made and as of the Initial Closing
Date as though made at that time (except for representations and warranties
that
speak as of a specific date, which shall be true and correct as of such
specified date) and the Company shall have performed, satisfied and complied
in
all material respects with the covenants, agreements and conditions required
by
the Transaction Documents to be performed, satisfied or complied with by the
Company at or prior to the Initial Closing Date. Such Initial Buyer shall have
received a certificate, executed by the President of the general partner of
the
Company, dated as of the Initial Closing Date, to the foregoing effect in the
form attached hereto as Exhibit
F.
(viii) The
Company shall have delivered to such Initial Buyer a letter from the Company's
transfer agent certifying the number of Units outstanding as of a date within
five (5) days of the Initial Closing Date.
-18-
(ix) The
Units
(i) shall be designated for quotation or listed on the Principal Market and
(ii)
shall not have been suspended, as of the Initial Closing Date, by the SEC or
the
Principal Market from trading on the Principal Market nor shall suspension
by
the SEC or the Principal Market have been threatened, as of the Initial Closing
Date, either (1)
in
writing by the SEC or the Principal Market or (2)
by
falling below the minimum listing maintenance requirements of the Principal
Market.
(x) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities.
(xi) The
Notes
shall have been approved for trading on PORTAL, subject only to notice of
issuance at or prior to the time of purchase.
(xii) The
Company shall have delivered to such Initial Buyer lock-up agreements with
each
of the Company's executive officers and directors who own equity in the Company
in substantially the form attached hereto as Exhibit
G.
(b) Additional
Closing Dates. The obligation of each Additional Buyer hereunder to purchase
the
Additional Notes at each Additional Closing is subject to the satisfaction,
at
or before the applicable Additional Closing Date, of each of the following
conditions, provided that these conditions are for each applicable Additional
Buyer's sole benefit and may be waived by such Additional Buyer at any time
in
its sole discretion by providing the Company with prior written notice
thereof:
(i) The
Company shall have executed and delivered to such Additional Buyer the
Additional Notes (for the account of such Additional Buyer as such Additional
Buyer shall instruct), which are being purchased by such Additional Buyer at
such Additional Closing pursuant to this Agreement.
(ii) Such
Additional Buyer shall have received the opinion of Proskauer Rose LLP, the
Company's outside counsel, dated as of such Additional Closing Date, in
substantially the form of Exhibit
D
attached
hereto.
(iii) The
Company shall have delivered to such Additional Buyer a certificate evidencing
the formation and good standing of the Company issued by the Secretary of State
of Delaware, as of a date within ten (10) days of such Additional Closing
Date.
(iv) The
Company shall have delivered to such Additional Buyer a certificate evidencing
the Company's qualification as a foreign entity and good standing issued by
the
Secretary of State (or comparable office) of each jurisdiction in which the
Company conducts business and is required to so qualify, as of a date within
ten
(10) days of such Additional Closing Date.
(v) The
Company shall have delivered to such Additional Buyer a certified copy of the
Certificate of Limited Partnership as certified by the Secretary of State of
the
State of Delaware within ten (10) days of such Additional Closing
Date.
-19-
(vi) The
Company shall have delivered to such Additional Buyer a certificate, executed
by
the Secretary of the general partner of the Company and dated as of such
Additional Closing Date, as to (i) the resolutions consistent with Section
3(b)
as adopted by the Company's general partner in a form reasonably acceptable
to
such Additional Buyer, (ii) the Certificate of Limited Partnership and (iii)
the
Limited Partnership Agreement, each as in effect at such Additional Closing,
in
the form attached hereto as Exhibit
E.
(vii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date when made and as of such Additional
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to such Additional Closing
Date. Such Additional Buyer shall have received a certificate, executed by
the
President of the general partner of the Company, dated as of such Additional
Closing Date, to the foregoing effect in the form attached hereto as
Exhibit
F.
(viii) The
Company shall have delivered to such Additional Buyer a letter from the
Company's transfer agent certifying the number of Units outstanding as of a
date
within five days of such Additional Closing Date.
(ix) The
Units
(I) shall be designated for quotation or listed on the Principal Market and
(II)
shall not have been suspended, as of such Additional Closing Date, by the SEC
or
the Principal Market from trading on the Principal Market nor shall suspension
by the SEC or the Principal Market have been threatened, as of such Additional
Closing Date, either (A) in writing by the SEC or the Principal Market or (B)
by
falling below the minimum maintenance requirements of the Principal
Market.
(x) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities.
(xi) No
Event
of Default (as defined in the Notes) shall have occurred and be
continuing.
(xii) The
Notes
to be issued at such Additional Closing shall have been approved for trading
on
PORTAL, subject only to notice of issuance at or prior to the time of purchase.
7. TERMINATION.
In
the
event that the Initial Closing shall not have occurred with respect to an
Initial Buyer on or before five (5) Business Days from the date hereof due
to
the Company's or such Initial Buyer's failure to satisfy the conditions set
forth in Sections 5 and 6 above (and the nonbreaching party's failure to waive
such unsatisfied condition(s)), the nonbreaching party shall have the option
to
terminate this Agreement with respect to such breaching party at the close
of
business on such date without liability of any party to any other party;
provided,
however,
that
if
-20-
this
Agreement is terminated pursuant to this Section 8, (a) the Company shall remain
obligated to reimburse the non-breaching Initial Buyers for the expenses
described in Section 4(d) above, and (b) such termination shall not relieve
any
party from any liability it may have resulting from such party's breach of
this
Agreement prior to such termination.
8. MISCELLANEOUS.
(a) Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed
by
the internal laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New York
or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting
in
The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby,
and hereby irrevocably waives, and agrees not to assert in any suit, action
or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other
party; provided that a facsimile signature shall be considered due execution
and
shall be binding upon the signatory thereto with the same force and effect
as if
the signature were an original, not a facsimile signature.
(c) Headings.
The headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement.
(d) Severability.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(e) Entire
Agreement; Amendments. This Agreement and the other Transaction Documents
supersede all other prior oral or written agreements between the Buyers, the
Company, their affiliates and Persons acting on their behalf with respect to
the
matters contemplated hereby, and this Agreement, the other Transaction Documents
and the instruments referenced herein and therein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the
Company nor any Buyer makes any representation,
-21-
warranty,
covenant or undertaking with respect to such matters. No provision of this
Agreement may be amended other than by an instrument in writing signed by the
Company and the holders of at least a majority of the aggregate principal amount
of the Notes issued and issuable hereunder, and any amendment to this Agreement
made in conformity with the provisions of this Section 9(e) shall be binding
on
all Buyers and holders of Notes, as applicable. No provision hereof may be
waived other than by an instrument in writing signed by the party against whom
enforcement is sought. No such amendment shall be effective to the extent that
it applies to less than all of the holders of the applicable Securities then
outstanding. No consideration shall be offered or paid to any Person to amend
or
consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration also is offered to all of the parties
to
the Transaction Documents or holders of Notes, as the case may be. The Company
has not, directly or indirectly, made any agreements with any Buyers relating
to
the terms or conditions of the transactions contemplated by the Transaction
Documents except as set forth in the Transaction Documents.
(f) Notices.
Any notices, consents, waivers or other communications required or permitted
to
be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party
and a duplicate copy is sent by electronic mail in PDF format); or (iii) one
Business Day after deposit with an overnight courier service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If
to the
Company:
American
Real Estate Partners, L.P.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Email:
xxxxxxx@xxxx.xxx
Attention:
Xxxxxxx
Xxxxxx
Copy
to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Email:
xxxxxxxxxxxx@xxxxxxxxx.xxx
Attention:
Xxx
X.
Xxxxxxxxxxx
If
to a
Buyer, to its address and facsimile number set forth on the Schedule of Buyers,
with copies to such Buyer's representatives as set forth on the Schedule of
Buyers,
-22-
with
a
copy (for informational purposes only) to:
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Email:
xxxxxxx.xxxxx@xxx.xxx
Attention:
Xxxxxxx
X. Xxxxx, Esq.
or
to
such other address and/or facsimile number and/or to the attention of such
other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (i), (ii) or (iii) above, respectively.
(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of
the parties and their respective successors and assigns, including any
purchasers of the Notes. The Company shall not assign this Agreement or any
rights or obligations hereunder without the prior written consent of the holders
of at least a majority of the aggregate principal amount of the Notes issued
and
issuable hereunder. A Buyer may assign some or all of its rights hereunder
without the consent of the Company (other than any portion of the First Option
and Second Option to purchase Additional Notes, which may only be assigned
to
the investment advisor, or funds managed by the investment advisor or parent
of
the investment advisor, of each Initial Buyer), in which event such assignee
shall be deemed to be a Buyer hereunder with respect to such assigned rights.
(h) No
Third
Party Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for
the
benefit of, nor may any provision hereof be enforced by, any other
Person.
(i) Survival.
Unless this Agreement is terminated under Section 8, the representations and
warranties of the Company and the Buyers contained in Sections 2 and 3 and
the
agreements and covenants set forth in Sections 4 and 9 shall survive the each
Closing and delivery and exercise of the Securities, as applicable. Each Buyer
shall be responsible only for its own representations, warranties, agreements
and covenants hereunder.
(j) Further
Assurances. Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated
hereby.
(k) Indemnification.
ii) In
consideration of each Buyer's execution and delivery of the Transaction
Documents and acquiring the Securities thereunder and in addition to all of
the
Company's other obligations under the Transaction Documents, the Company shall
defend, protect,
-23-
indemnify
and hold harmless each Buyer and each other holder of the Securities and all
of
their stockholders, partners, members, officers, directors, employees and direct
or indirect investors (to the extent the Buyer has transferred Securities to
such investors) and any of the foregoing Persons' agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the
"Indemnitees"),
as
incurred, from and against any and all actions, causes of action, suits, claims,
losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party
to
the action for which indemnification hereunder is sought), and including
reasonable attorneys' fees and disbursements (the "Indemnified
Liabilities"),
incurred by any Indemnitee as a result of, or arising out of, or relating to
(a)
any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents, (b) any breach of any covenant, agreement
or obligation of the Company contained in the Transaction Documents or (c)
any
cause of action, suit or claim brought or made against such Indemnitee by a
third party (including for these purposes a derivative action brought on behalf
of the Company) and arising out of or resulting from the execution, delivery,
performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby. To the
extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment
and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
(ii) Promptly
after receipt by an Indemnitee under this Section 9(k) of notice of the
commencement of any action or proceeding (including any governmental action
or
proceeding) involving an Indemnified Liability, such Indemnitee shall, if a
claim for indemnification in respect thereof is to be made against any
indemnifying party under this Section 9(k), deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so
desires, to assume control of the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, that an Indemnitee
shall have the right to retain its own counsel with the fees and expenses of
not
more than one counsel for all Indemnitees to be paid by the indemnifying party,
if, in the reasonable opinion of counsel to the Indemnitee, the representation
by such counsel of the Indemnitee and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnitee and any other party represented by such counsel in such proceeding.
Legal counsel referred to in the immediately preceding sentence shall be
selected by the Buyers holding at least a majority of the aggregate principal
amount of the Notes issued and issuable hereunder. The Indemnitee shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or Indemnified Liabilities by the indemnifying
party and shall furnish to the indemnifying party all information reasonably
available to the Indemnitee that relates to such action or Indemnified
Liabilities. The indemnifying party shall keep the Indemnitee fully apprised
at
all times as to the status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for any settlement of
any
action, claim or proceeding effected without its prior written consent,
provided, however, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall, without the prior
written consent of the Indemnitee, which consent shall not be unreasonably
withheld conditioned or delayed, consent to entry of any judgment or enter
into
any settlement or other
-24-
compromise
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnitee of a release from all liability in
respect to such Indemnified Liabilities or litigation. Following indemnification
as provided for hereunder, the indemnifying party shall be subrogated to all
rights of the Indemnitee with respect to all third parties, firms or
corporations relating to the matter for which indemnification has been made.
The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnitee under this Section 9(k), except to
the
extent that the indemnifying party is prejudiced in its ability to defend such
action.
(iii) The
indemnification required by this Section 9(k) shall be made by periodic payments
of the amount thereof during the course of the investigation or defense, as
and
when bills are received or Indemnified Liabilities are incurred.
(iv) The
indemnity agreements contained herein shall be in addition to (x) any cause
of
action or similar right of the Indemnitee against the indemnifying party or
others, and (y) any liabilities the indemnifying party may be subject to
pursuant to the law.
(v) Notwithstanding
the foregoing, in no event shall the Company be liable to any Indemnitee for
any
consequential, special, punitive or other indirect damages.
(l) No
Strict
Construction. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules
of
strict construction will be applied against any party.
(m) Independent
Nature of Buyers' Obligations and Rights. The obligations of each Buyer under
any Transaction Document are several and not joint with the obligations of
any
other Buyer, and no Buyer shall be responsible in any way for the performance
of
the obligations of any other Buyer under any Transaction Document. Nothing
contained herein or in any other Transaction Document, and no action taken
by
any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers
as a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Buyers are in any way acting in concert or
as a
group with respect to such obligations or the transactions contemplated by
the
Transaction Documents and the Company acknowledges that the Buyers are not
acting in concert or as a group, and the Company will not assert any such claim,
with respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Buyer confirms that it has independently
participated in the negotiation of the transaction contemplated hereby with the
advice of its own counsel and advisors. Except to the extent otherwise
specifically set forth in the Transaction Documents, each Buyer shall be
entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of any other
Transaction Documents, and it shall not be necessary for any other Buyer to
be
joined as an additional party in any proceeding for such purpose.
[Signature
Page Follows]
-25-
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
COMPANY:
|
|
AMERICAN
REAL ESTATE PARTNERS, L.P.
By:
American Property Investors, Inc.,
its
general partner
By:
______________________________
Name:
Title:
|
[Signature
Page to Securities Purchase Agreement]
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
PORTSIDE
GROWTH AND OPPORTUNITY FUND
By:
______________________________
Name:
Title:
|
[Signature
Page to Securities Purchase Agreement]
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
HIGHBRIDGE
INTERNATIONAL LLC
By:
HIGHBRIDGE CAPITAL MANAGEMENT, LLC
By:
______________________________
Name:
Xxxx X. Chill
Title:
Managing Director
|
[Signature
Page to Securities Purchase Agreement]
SCHEDULE
OF BUYERS
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(5)
|
|||||
|
Buyer
|
Address
and
Facsimile
Number
|
Aggregate
Principal Amount of
Initial
Notes
|
Purchase
Price
|
Aggregate
Principal Amount of Additional Notes
|
Legal
Representative's
Address
and Facsimile Number
|
|||||
|
Initial
Buyers
|
||||||||||
|
Portside
Growth and Opportunity Fund
|
c/o
Ramius Capital Group, LLC
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx
Xxxx
Xxxxxxx
Facsimile: (000)
000-0000
Telephone:
(000) 000-0000
Email:
xxxxxx@xxxxxx.xxx
xxxxxxxx@xxxxxx.xxx
Residence:
Cayman
Islands
|
$100,000,000
|
$100,000,000
|
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
|
||||||
|
Highbridge
International LLC
|
c/o
Highbridge Capital
Management,
LLC
0
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxx X. Xxxxxx
Xxxx
X. Chill
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Email:
xxx.xxxxxx@xxxxx.xxx
xxxx.xxxxx@xxxxx.xxx
Residence:
Cayman Islands
|
$100,000,000
|
$100,000,000
|
|||||||
|
Other
Buyers
|
EXHIBITS
| ExhibitA |
Indenture
|
| ExhibitB |
Registration
Rights Agreement
|
| ExhibitC |
Form
of Joinder Agreement
|
| ExhibitD |
Form
of Outside Company Counsel Opinion
|
| ExhibitE |
Form
of Secretary's Certificate
|
| ExhibitF |
Form
of Officer's Certificate
|
| ExhibitG |
Form
of Lock-Up Agreement
|
SCHEDULES
| Schedule3(o) |
Absence
of Certain Changes
|
| Schedule3(u) |
Internal
Accounting and Disclosure Controls
|
| Schedule3(v) |
Capitalization
|
| Schedule3(w) |
Litigation
|
| Schedule3(y) |
Ranking
|
| Schedule3(ff) |
MLP
Status
|
