UNIT
PURCHASE AGREEMENT
UNIT
PURCHASE AGREEMENT, dated effective as of November 7, 2007 (this
“Agreement”), by and among Legacy Reserves LP, a Delaware limited
partnership (the “Partnership”), each of the Purchasers listed in the
signature pages attached hereto (each referred to herein as a “Purchaser”
and collectively, the “Purchasers”), and, solely for purposes of
Section 8.14 of this Agreement, Legacy Reserves GP, LLC, a Delaware
limited liability company (the “General Partner”).
WHEREAS,
the Partnership desires to repay the outstanding indebtedness under the
Partnership’s revolving credit facility, evidenced in the Credit Agreement dated
March 15, 2006, as amended and restated and desires to finance future
acquisitions;
WHEREAS,
the Partnership desires to sell Restricted Units to each of the Purchasers
in a
private placement exempt from the registration requirements of the Securities
Act, and the Purchasers desire to purchase such Restricted Units from the
Partnership, each in accordance with the provisions of this Agreement;
and
WHEREAS,
the Partnership has agreed to provide Purchasers with certain registration
rights with respect to the Purchased Restricted Units acquired pursuant to
this
Agreement;
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Partnership and each of the Purchasers,
severally and not jointly, hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
As
used
in this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated:
“Action”
against a Person means any lawsuit, action, proceeding, investigation or
complaint before any Governmental Authority, mediator or
arbitrator.
“Affiliate”
means, with respect to a specified Person, any other Person, whether now
in
existence or hereafter created, directly or indirectly controlling, controlled
by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control” (including, with
correlative meanings, “controlling,” “controlled by,” and “under common control
with”) means the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise.
“Agreement”
shall have the meaning specified in the introductory paragraph.
“Basic
Documents” means, collectively, this Agreement, the Registration Rights
Agreement and any and all other agreements or instruments executed and delivered
by the Parties on the date hereof or the Closing Date relating to the issuance
and sale of the Restricted Units, or any amendments, supplements, continuations
or modifications thereto.
“Business
Day” means any day other than a Saturday, Sunday, or a legal holiday for
commercial banks in New York, New York.
“Closing”
shall have the meaning specified in Section 2.02.
“Closing
Date” shall have the meaning specified in
Section 2.02.
“Commission”
means the United States Securities and Exchange Commission.
“Commitment
Purchase Amount” means with respect to each Purchaser, the dollar amount set
forth opposite each Purchaser’s name under the heading “Commitment Purchase
Amount.”
“Delaware
LP Act” means the Delaware Revised Uniform Limited Partnership
Act.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time, and the rules and regulations of the Commission promulgated
thereunder.
“GAAP”
means generally accepted accounting principles in the United States of America
in effect from time to time.
“General
Partner” has the meaning specified in the recitals of this
Agreement.
“Governmental
Authority” shall include the country, state, county, city and political
subdivisions in which any Person or such Person’s Property is located or which
exercises valid jurisdiction over any such Person or such Person’s Property, and
any court, agency, department, commission, board, bureau or instrumentality
of
any of them and any monetary authorities that exercise valid jurisdiction
over
any such Person or such Person’s Property. Unless otherwise specified, all
references to Governmental Authority herein shall mean a Governmental Authority
having jurisdiction over, where applicable, the Partnership, its Subsidiaries
or
any of their Property or any of the Purchasers.
“Indemnified
Party” shall have the meaning specified in
Section 7.03.
“Indemnifying
Party” shall have the meaning specified in
Section 7.03.
“Law”
means any federal, state, local or foreign order, writ, injunction, judgment,
settlement, award, decree, statute, law, rule or regulation.
“Legacy
LTIP” means the Legacy Reserves LP Long-Term Incentive Plan, as amended and
restated.
“Lien”
means any interest in Property securing an obligation owed to, or a claim
by, a
Person other than the owner of the Property, whether such interest is based
on
the common law, statute or contract, and whether such obligation or claim
is
fixed or contingent, and including but not limited to the lien or security
interest arising from a mortgage, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. For the purpose of this Agreement, a Person shall
be deemed to be the owner of any Property that it has acquired or holds subject
to a conditional sale agreement, or leases under a financing lease or other
arrangement pursuant to which title to the Property has been retained by
or
vested in some other Person in a transaction intended to create a
financing.
“Lock-Up
Date” means 90 days from the Closing Date.
“Knowledge
of the Partnership” means to the actual knowledge of Cary D. Brown, Steven
H. Pruett, Kyle, A McGraw, Paul T. Horne and William M. Morris, as Chairman
or
executive officers of the General Partner.
“NASDAQ
Global Select Market” means the National Association of Securities Dealers
Automated Quotation System.
“Participating
Unit” shall have the meaning specified in Section 4.04.
“Partnership”
shall have the meaning specified in the introductory paragraph.
“Partnership
Agreement” means the Amended and Restated Agreement of Limited Partnership
of the Partnership, dated as of March 15, 2006.
“Partnership
Material Adverse Effect” means any material and adverse effect on (i) the
assets, liabilities, financial condition, business, operations, prospects
or
affairs of the Partnership and its Subsidiaries, taken as a whole, measured
against those assets, liabilities, financial condition, business, operations,
prospects or affairs reflected in the SEC Documents filed with the Commission
prior to the date hereof or from the facts represented or warranted by the
Partnership in any Basic Document, (ii) the ability of the Partnership to
meet
its obligations under the Basic Documents, or (iii) the ability of the
Partnership to consummate the transactions under any Basic Document on a
timely
basis. Notwithstanding the foregoing, a “Partnership Material Adverse
Effect” shall not include any effect resulting or arising from: (a) any change
in general economic conditions in the industries or markets in which the
Partnership or its Subsidiaries operate that do not have a disproportionate
impact on the Partnership or its Subsidiaries; (b) the outbreak or escalation
of
national or international political, diplomatic or military conditions,
including any engagement in hostilities, whether or not pursuant to a
declaration of war, or the occurrence of any military or terrorist attack;
or
(c) changes in GAAP or other accounting principles.
“Partnership
Related Parties” shall have the meaning specified in
Section 7.02.
“Partnership
Securities” means any class or series of equity interest in the Partnership
(but excluding any options, rights, warrants and appreciation rights to an
equity interest in the Partnership), including without limitation
Units.
“Party”
or “Parties” means the Partnership and the Purchasers party to this
Agreement, individually or collectively, as the case may be.
“Person”
means any individual, corporation, company, voluntary association, partnership,
joint venture, trust, limited liability company, unincorporated organization
or
government or any agency, instrumentality or political subdivision thereof,
or
any other form of entity.
“Placement
Agent” shall have the meaning specified in Section 3.12.
“Property”
means any interest in any kind of property or asset, whether real, personal
or
mixed, or tangible or intangible.
“Purchaser”
and “Purchasers” shall have the meaning specified in the introductory
paragraph.
“Purchaser
Material Adverse Effect” means, with respect to a particular Purchaser, any
material and adverse effect on (a) the ability of a Purchaser to meet its
obligations under the Basic Documents or (b) the ability of a Purchaser to
consummate the transactions under any Basic Document on a timely
basis.
“Purchaser
Related Parties” shall have the meaning specified in
Section 7.01.
“Registration
Rights Agreement” means the Registration Rights Agreement, substantially in
the form attached to this Agreement as Exhibit A, to be entered into at
the Closing, among the Partnership and the Purchasers.
“Representatives”
of any Person means the Affiliates, control persons, officers, directors,
employees, agents, counsel, investment bankers and other representatives
of such
Person.
“Restricted
Units” means the Units to be issued and sold to the Purchasers pursuant to
this Agreement.
“SEC
Documents” shall have the meaning specified in Section
3.03.
“Securities
Act” means the Securities Act of 1933, as amended from time to time, and the
rules and regulations of the Commission promulgated thereunder.
“Short
Sale” means, without limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act, whether or not against
the box, and forward sale contracts, options, puts, calls, short sales, “put
equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements, and sales and other transactions through non-U.S. broker
dealers or foreign regulated brokers.
“Subsidiary”
means, as to any Person, any corporation or other entity of which (i) such
Person or a Subsidiary of such Person is a general partner or managing member,
(ii) at least a majority of the outstanding equity interests having by the
terms
thereof ordinary voting power to elect a majority of the board of directors
or
similar governing body of such corporation or other entity is at the time
directly or indirectly owned or controlled by such Person or one or more
of its
Subsidiaries or (iii) any corporation or other entity as to which such Person
consolidates for accounting purposes.
“Taxes”
means any tax, charge, levy, penalty or other assessment imposed by any U.S.
federal, state, local or foreign taxing authority, including any excise,
property, income, sales, transfer, franchise, payroll, withholding, social
security or other tax, including any interest, penalties or additions
attributable thereto.
“Tax
Return” means any return, report, information return, declaration, claim for
refund or other document (including any related or supporting information)
supplied or required to be supplied with respect to any Taxes and including
any
supplement or amendment thereof.
“Unit”
means a unit of the Partnership representing limited partnership interests
therein.
“Unit
Purchase Price” shall have the meaning specified in Section
2.01(c).
“Unitholders”
means the Unitholders of the Partnership (within the meaning of the Partnership
Agreement).
“8-K
Filing” shall have the meaning specified in Section
5.10.
Section
1.02 Accounting
Procedures and Interpretation. Unless
otherwise specified in this Agreement, all accounting terms used herein shall
be
interpreted, all determinations with respect to accounting matters under
this
Agreement shall be made, and all financial statements and certificates and
reports as to financial matters required to be furnished to the Purchasers
under
this Agreement shall be prepared, in accordance with GAAP applied on a
consistent basis during the periods involved (except, in the case of unaudited
statements, as permitted by Form 10-Q promulgated by the Commission) and in
compliance as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the Commission
with
respect thereto.
ARTICLE
II
SALE
AND PURCHASE
Section
2.01 Sale
and Purchase.
(a) Sale
and Purchase. Subject to the terms and conditions of this
Agreement, at the Closing, the Partnership hereby agrees to issue and sell
to
each Purchaser, and each Purchaser hereby agrees, severally and not jointly,
to
purchase from the Partnership, the number of Restricted Units determined
pursuant to paragraph (b) below of this Section 2.01, and each
Purchaser agrees to pay the Partnership the Unit Purchase Price for each
Restricted Unit, in each case, as set forth in paragraph (c) below of
this Section 2.01. The obligation of each Purchaser under this Agreement
is independent of the obligation of each other Purchaser, and the failure
or
waiver of performance with respect to any Purchaser does not excuse performance
by any other Purchaser.
(b) Units. The
number of Restricted Units to be issued and sold to each Purchaser shall
be the
number of Restricted Units listed under the name of such Purchaser on the
attached signature pages.
(c) Consideration. The
amount per Restricted Unit each Purchaser will pay to the Partnership to
purchase the Restricted Units (the “Unit Purchase Price”) shall be
$20.50.
Section
2.02 Closing.
Subject
to the terms and conditions of this Agreement, the execution and delivery
of the
Basic Documents (other than this Agreement), delivery of certificates
representing the Restricted Units and execution and delivery of all other
instruments, agreements, and other documents required (which certificates
representing the Restricted Units may be delivered within seven (7) Business
Days of the Closing Date) by this Agreement (the “Closing”) shall take place on
November 8, 2007, or such other date as shall be agreeable to the Parties
(the
“Closing Date”). The Closing shall take place at the offices of
Andrews Kurth LLP, 600 Travis, Suite 4200, Houston, Texas 77002. At
the Closing, subject to the terms and conditions of this Agreement, each
of the
Partnership and the Purchasers shall deliver, or cause to be delivered, the
items set forth in Article VI.
Section
2.03 Independent
Nature of Purchasers’ Obligations and Rights. The
respective obligations of each Purchaser under any Basic Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser
shall be responsible in any way for the performance of the obligations of
any
other Purchaser under any Basic Document. The failure or waiver of
performance under any Basic Document by any Purchaser, or on its behalf,
does
not excuse performance by any other Purchaser. Nothing contained
herein or in any other Basic Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a
group
for purposes of Section 13(d) of the Exchange Act with respect to such
obligations or the transactions contemplated by any Basic
Document. Each Purchaser shall be entitled to independently protect
and enforce its rights, including the rights arising out of this Agreement
or
out of the other Basic Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE PARTNERSHIP
The
Partnership represents and warrants to the Purchasers, on and as of the date
of
this Agreement and on and as of the Closing Date, as follows:
Section
3.01 Existence
of the Partnership and its Subsidiaries.
(a) The
Partnership: (i) is a limited partnership duly formed, validly existing and
in good standing under the Laws of the State of Delaware; (ii) has all
requisite limited partnership power and authority, and has all governmental
licenses, authorizations, consents and approvals, necessary to own, lease,
use
and operate its Properties and carry on its business as its business is now
being conducted as described in the SEC Documents, except where the failure
to
obtain such licenses, authorizations, consents and approvals would not
reasonably be expected to have a Partnership Material Adverse Effect; and
(iii) is qualified to do business in all jurisdictions in which the nature
of the business conducted by it makes such qualifications necessary, except
where failure so to qualify would not reasonably be expected to have a
Partnership Material Adverse Effect. The Partnership is not in
violation of its certificate of limited partnership or the Partnership
Agreement.
(b) The
General Partner has been duly formed and is validly existing and in good
standing under the laws of the State of Delaware and has all requisite limited
liability company power and authority, and has all governmental licenses,
authorizations, consents and approvals necessary, to own, lease, use or operate
its Properties and carry on its business as now being conducted and as described
in the SEC Documents, except where the failure to obtain such licenses,
authorizations, consents and approvals would not be reasonably likely to
have a
Partnership Material Adverse Effect.
Section
3.02 Restricted
Units, Capitalization and Valid Issuance.
(a) The
Restricted Units shall have those rights, preferences, privileges and
restrictions governing the Units as set forth in the Partnership
Agreement. A true and correct copy of the Partnership Agreement has
been filed by the Partnership with the Commission.
(b) As
of the date of this Agreement, the issued and outstanding limited partner
interests of the Partnership consist of 26,066,596 Units and the only issued
and
outstanding general partner interest is the General Partner’s approximate 0.01%
general partner interest. All of the outstanding Units have been duly
authorized and validly issued in accordance with applicable Law under the
Delaware LP Act and the Partnership Agreement and are fully paid (to the
extent
required under applicable Law and the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Sections 17-303, 17-607
and
17-804 of the Delaware LP Act).
(c) Other
than the Legacy LTIP, the Partnership has no equity compensation plans that
contemplate the issuance of Units (or securities convertible into or
exchangeable for Units). No indebtedness having the right to vote (or
convertible into or exchangeable for securities having the right to vote)
on any
matters on which the Unitholders may vote is issued or
outstanding. Except (i) as have been granted pursuant to Legacy LTIP,
(ii) as contemplated by this Agreement or (iii) as are contained in the
Partnership Agreement, there are no outstanding or authorized (A) options,
warrants, preemptive rights, subscriptions, calls, convertible or exchangeable
securities or other rights, agreements, claims or commitments of any character
obligating the Partnership or any of its Subsidiaries to issue, transfer
or sell
any limited partner interests or other equity interests in, the Partnership
or
securities convertible into or exchangeable for such limited partner interests
or other equity interests, (B) obligations of the Partnership to repurchase,
redeem or otherwise acquire any limited partner interests or other equity
interests of the Partnership or any of its Subsidiaries or any such securities
or agreements listed in clause (A) of this sentence or (C) voting trusts
or similar agreements to which the Partnership or any of its Subsidiaries
is a
party with respect to the voting of the equity interests of the
Partnership. Neither the execution of this Agreement nor the issuance
of the Units as contemplated by this Agreement gives rise to any rights for
or
relating to the registration of any securities of the Partnership, other
than
pursuant to the Registration Rights Agreement.
(d) The
offer and sale of the Restricted Units and the limited partner interests
represented thereby have been duly authorized by the Partnership pursuant
to the
Partnership Agreement and, when issued and delivered to the Purchasers against
payment therefore in accordance with the terms of this Agreement, will be
validly issued, fully paid (to the extent required by applicable Law and
the
Partnership Agreement) and nonassessable (except as such nonassessability
may be
affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and
will
be free of any and all Liens and restrictions on transfer, other than
restrictions on transfer under the Partnership Agreement and under applicable
state and federal securities Laws and other than such Liens as are created
by
the Purchasers.
(e) The
Restricted Units will be issued in compliance with all applicable rules of
the
NASDAQ Global Select Market. Prior to the Closing Date, the
Partnership will submit to the NASDAQ Global Select Market a Notification
Form:
Listing of Additional Units with respect to the Restricted Units. The
Partnership’s currently outstanding Units are quoted on the NASDAQ Global Select
Market and the Partnership has not received any notice of
delisting.
(f) None
of the execution of this Agreement, the offering or sale of the Restricted
Units
or the registration of the Units pursuant to the Registration Rights Agreement
gives rise to any rights for or relating to the registration of any Units
or
other securities of the Partnership other than pursuant to the Registration
Rights Agreement and those rights granted to the General Partner or any of
its
Affiliates (as such term is defined in the Partnership Agreement) under
Section 4.5.
Section
3.03 SEC
Documents. The
Partnership has filed with the Commission all reports, schedules and statements
required to be filed by it under the Exchange Act since the consummation
of its
initial public offering (all such documents filed on or prior to the date
of
this Agreement, but specifically excluding any documents “furnished,”
collectively, the “SEC Documents”). The SEC Documents, including any
Partnership audited or unaudited financial statements and any notes thereto
or
schedules included therein, at the time filed (except to the extent corrected
by
a subsequently filed SEC Document filed prior to the date of this Agreement)
(i) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading, (ii) complied as to form in all material respects
with applicable requirements of the Exchange Act and the applicable accounting
requirements and with the published rules and regulations of the Commission
with
respect thereto, (iii) were prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated
in the
notes thereto or, in the case of unaudited statements, as permitted by
Form 10-Q of the Commission) and (iv) fairly present (subject in the case
of unaudited statements to normal, recurring and year-end audit adjustments)
in
all material respects the consolidated financial position of the Partnership
as
of the dates thereof and the consolidated results of its operations and cash
flows for the periods then ended. BDO Seidman,
LLP is an independent registered public accounting firm
with respect to the Partnership and has not resigned or been dismissed as
an
independent registered public accountant of the Partnership as a result of
or in
connection with any disagreement with the Partnership on any matter of
accounting principles or practices, financial statement disclosure or auditing
scope or procedures.
Section
3.04 No
Material Adverse Change. Except
as
set forth in or contemplated by the SEC Documents filed with the Commission
since December 31, 2006, the Partnership and its Subsidiaries have conducted
their business in the ordinary course, consistent with past practice, and
there
has been no (i) change that has had or would reasonably be expected to have
a
Partnership Material Adverse Effect, (ii) acquisition or disposition of any
material asset by the Partnership or any of its Subsidiaries or any contract
or
arrangement therefore, otherwise than for fair value in the ordinary course
of
business, (iii) material change in the Partnership’s accounting principles,
practices or methods or (iv) incurrence of material indebtedness.
Section
3.05 Litigation.
Except
as
set forth in the SEC Documents, there is no Action pending or, to the knowledge
of the Partnership, contemplated or threatened against the Partnership or
any of
its Subsidiaries or any of their respective officers (in their capacity as
such), directors (in their capacity as such) or Properties, (a) which
(individually or in the aggregate) reasonably would be expected to have a
Partnership Material Adverse Effect or which challenges the validity of any
of
the Basic Documents or the right of the Partnership to enter into any of
the
Basic Documents or to consummate the transactions contemplated hereby and
thereby or (b) which would reasonably be expected to adversely affect or
restrict the Partnership’s ability to consummate the transactions contemplated
by the Basic Documents.
Section
3.06 No
Breach. The
execution, delivery and performance by the Partnership of the Basic Documents
to
which it is a party and all other agreements and instruments to be executed
and
delivered by the Partnership pursuant hereto or thereto or in connection
herewith and therewith, and compliance by the Partnership with the terms
and
provisions hereof and thereof, do not and will not (a) violate any
provision of any Law, governmental permit, determination or award having
applicability to the Partnership or any of its Subsidiaries or any of their
respective Properties, (b) conflict with or result in a violation of any
provision of the organizational documents of the Partnership or any of its
Subsidiaries, (c) require any consent, approval or notice under or result
in a violation or breach of or constitute (with or without due notice or
lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under any note, bond, mortgage, license, loan
or credit agreement or other instrument, obligation or agreement to which
the
Partnership or any of its Subsidiaries is a party or by which the Partnership
or
any of its Subsidiaries or any of their respective Properties may be bound
or
(d) result in or require the creation or imposition of any Lien upon or
with respect to any of the Properties now owned or hereafter acquired by
the
Partnership or any of its Subsidiaries, except in the cases of clauses (a),
(c)
and (d) where such violation, default, breach, termination, cancellation,
failure to receive consent or approval, or acceleration with respect to the
foregoing provisions of this Section 3.06 would not, individually or in the
aggregate, reasonably be expected to have a Partnership Material Adverse
Effect.
Section
3.07 Authority.
The
Partnership has all necessary limited partnership power and authority to
execute, deliver and perform its obligations under the Basic Documents to
which
it is a party and to consummate the transactions contemplated thereby; the
execution, delivery and performance by the Partnership of the Basic Documents
to
which it is a party, and the consummation of the transactions contemplated
thereby, have been duly authorized by all necessary action on its part; and
the
Basic Documents will constitute the legal, valid and binding obligations
of
Partnership, enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent transfer
and
similar Laws affecting creditors’ rights generally or by general principles of
equity, including principles of commercial reasonableness, fair dealing and
good
faith. No approval from the holders of outstanding Units is required
under the Partnership Agreement or the rules of the NASDAQ Global Select
Market
in connection with the Partnership’s issuance and sale of the Restricted Units
to the Purchasers.
Section
3.08 Approvals. Except
as required by the Commission in connection with the Partnership’s obligations
under the Registration Rights Agreement, no authorization, consent, approval,
waiver, license, qualification or written exemption from, nor any filing,
declaration, qualification or registration with, any Governmental Authority
or
any other Person is required in connection with the execution, delivery or
performance by the Partnership of any of the Basic Documents to which it
is a
party or the Partnership’s issuance and sale of the Restricted Units, except (i)
as may be required under the state securities or “Blue Sky” Laws, or (ii) where
the failure to receive such authorization, consent, approval, waiver, license,
qualification or written exemption or to make such filing, declaration,
qualification or registration would not, individually or in the aggregate,
reasonably be expected to have a Partnership Material Adverse
Effect.
Section
3.09 MLP
Status. The
Partnership has, for each taxable year beginning on or after the closing
of its
respective initial public offering, met the gross income requirements of
Section
7704(c)(2) of the Internal Revenue Code of 1986, as amended.
Section
3.10 Investment
Company Status. The
Partnership is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
Section
3.11 Valid
Private Placement. Assuming
the accuracy of the representations and warranties of the Purchasers contained
in this Agreement, the sale and issuance of the Restricted Units pursuant
to
this Agreement is exempt from the registration requirements of the Securities
Act, and neither the Partnership nor, to the knowledge of the Partnership,
any
authorized Representative acting on its behalf has taken or will take any
action
hereafter that would cause the loss of such exemption.
Section
3.12 Certain
Fees. Other
than fees payable to RBC Capital Markets (the “Placement Agent”) for its service
as placement agent, no fees or commissions are or will be payable by the
Partnership to brokers, finders, or investment bankers with respect to the
sale
of any of the Restricted Units or the consummation of the transactions
contemplated by this Agreement. The Purchasers shall not be liable
for any such fees or commissions.
Section
3.13 No
Side Agreements. Except
for the confidentiality agreements described in Section 8.06, the Registration
Rights Agreement and the engagement letter with the Placement Agent, there
are
no other agreements by, among or between the Partnership or its Affiliates,
on
the one hand, and any of the Purchasers or their Affiliates, on the other
hand,
with respect to the transactions contemplated hereby nor promises or inducements
for future transactions between or among any of such parties.
Section
3.14 Form
S-3 Eligibility. In
January 2008, the Partnership is expected to be eligible to register the
Restricted Units for resale by the Purchasers on a registration statement
on
Form S-3 under the Securities Act.
Section
3.15 Taxes. The
Partnership has filed all Tax Returns required to be filed. To the
Knowledge of the Partnership, such Tax Returns are true, correct and complete
in
all material respects. The Partnership has paid in full all Taxes
shown to be due on such Tax Returns. The Partnership has not received
any written notice of deficiency or assessment from any taxing authority
with
respect to liabilities for any material Taxes, which have not been fully
paid or
finally settled, unless being contested in good faith through appropriate
proceedings and for which adequate reserves are presented in the Partnership’s
financial statements included in the SEC Documents.
Section
3.16 Acknowledgment
Regarding Purchase of Restricted Units. The
Partnership acknowledges and agrees that (i) each of the Purchasers is
participating in the transactions contemplated by this Agreement and the
other
Basic Documents at the Partnership’s request and the Partnership has concluded
that such participation is in the Partnership’s best interest and is consistent
with the Partnership’s objectives and (ii) each of the Purchasers is acting
solely in the capacity of an arm’s length purchaser. The Partnership
further acknowledges that no Purchaser is acting or has acted as an advisor,
agent or fiduciary of the Partnership (or in any similar capacity) with respect
to this Agreement or the other Basic Documents and any advice given by any
Purchaser or any of its respective Representatives in connection with this
Agreement or the other Basic Documents is merely incidental to the Purchasers’
purchase of the Restricted Units. The Partnership further represents
to each Purchaser that the Partnership’s decision to enter into this Agreement
has been based solely on the independent evaluation of the transactions
contemplated hereby by the Partnership and its Representatives.
Section
3.17 Compliance
with Laws. Neither
the Partnership nor any of its Subsidiaries is in violation of any Law
applicable to the Partnership or its Subsidiaries, except as would not,
individually or in the aggregate, have a Partnership Material Adverse
Effect. The Partnership and its Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate regulatory
authorities necessary to conduct their respective businesses, except where
the
failure to possess such certificates, authorizations or permits would not
have,
individually or in the aggregate, a Partnership Material Adverse Effect,
and
neither the Partnership nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit, except where such potential revocation or modification
would not have, individually or in the aggregate, a Partnership Material
Adverse
Effect.
Section
3.18 Insurance. The
Partnership and the General Partner are insured against such losses and risks
and in such amounts as the Partnership believes in its sole discretion to
be
prudent for its businesses. The Partnership does not have any reason
to believe that it or the General Partner will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business.
Section
3.19 No
Integrated Offering. Neither
the Partnership, nor any of its Affiliates, nor any Person acting on its
or
their 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 cause this offering of the Units to be integrated with prior offerings
by
the Partnership for purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, under the rules and
regulations of the trading market on which the Units are currently listed
or
quoted.
Section
3.20 Registration
Rights Neither
the execution of this Agreement or the issuance of the Purchased Units as
contemplated by this Agreement gives rise to any rights for or relating to
the
registration of any securities of the Partnership, other than pursuant to
the
Registration Rights Agreement.
Section
3.21 Record
Date; Distributions The
board
of directors of the General Partner approved a cash distribution attributable
to
the third quarter of 2007, payable on November 14, 2007 to Unitholders of
record
at the close of business on October 31, 2007, therefore no Purchaser will
be
entitled to any distribution or other dividend from the Partnership attributable
to the third quarter of 2007 with respect to the Restricted Units.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF EACH PURCHASER
Each
Purchaser, severally and not jointly, represents and warrants to the Partnership
with respect to itself, on and as of the date of this Agreement and on and
as of
the Closing Date, as follows:
Section
4.01 Valid
Existence. Such
Purchaser (a) is duly incorporated or formed, validly existing and in good
standing under the Laws of its respective jurisdiction of incorporation or
formation, and (b) has all requisite power and authority, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its Properties and carry on its business as its business is now being
conducted, except where the failure to obtain such licenses, authorizations,
consents and approvals would not reasonably be expected to have a Purchaser
Material Adverse Effect. Each such Purchaser is not in default in the
performance, observance or fulfillment of any provision of its organizational
documents, except where such default would not have or would not reasonably
be
likely to have a Purchaser Material Adverse Effect.
Section
4.02 No
Breach. The
execution, delivery and performance by such Purchaser of the Basic Documents
to
which it is a party and all other agreements and instruments to be executed
and
delivered by such Purchaser pursuant hereto or thereto or in connection herewith
or therewith, compliance by such Purchaser with the terms and provisions
hereof
and thereof, and the purchase of the Restricted Units by such Purchaser do
not
and will not (a) violate any provision of any Law, governmental permit,
determination or award having applicability to such Purchaser or any of its
Properties, (b) conflict with or result in a violation of any provision of
the organizational documents of such Purchaser or (c) require any consent
(other than standard internal consents), approval or notice under or result
in a
violation or breach of or constitute (with or without due notice or lapse
of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under any note, bond, mortgage, license, loan or credit
agreement or other instrument or agreement to which such Purchaser is a party
or
by which such Purchaser or any of its Properties may be bound, except in
the
case of clauses (a) and (c), where such violation, default, breach, termination,
cancellation, failure to receive consent or approval, or acceleration with
respect to the foregoing provisions of this Section 4.02 would not,
individually or in the aggregate, reasonably be expected to have a Purchaser
Material Adverse Effect.
Section
4.03 Authority. The
Purchaser has all necessary corporate, limited liability company or partnership
power and authority to execute, deliver and perform its obligations under
the
Basic Documents to which it is a party and to consummate the transactions
contemplated thereby; the execution, delivery and performance by the Purchaser
of the Basic Documents to which it is a party, and the consummation of the
transactions contemplated thereby, have been duly authorized by all necessary
action on its part; and the Basic Documents will constitute the legal, valid
and
binding obligations of Purchaser, enforceable in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer and similar Laws affecting creditors’ rights generally or by
general principles of equity, including principles of commercial reasonableness,
fair dealing and good faith.
Section
4.04 Investment. The
Restricted Units are being acquired for such Purchaser’s own account, or the
accounts of clients for whom such Purchaser exercises discretionary investment
authority (all of whom the Purchaser hereby represents and warrants are
“accredited investors” within the meaning of Rule 501(a) of Regulation D or
“qualified institutional buyer” within the meaning of Rule 144A promulgated by
the Commission pursuant to the Securities Act), not as a nominee or agent,
and
with no present intention of distributing the Restricted Units or any part
thereof, and that such Purchaser has no present intention of selling or granting
any participation in or otherwise distributing the same in any transaction
in
violation of the securities Laws of the United States of America or any state,
without prejudice, however, to such Purchaser’s right at all times (subject to
such Purchaser’s agreement contained in Section 5.02) to sell or otherwise
dispose of all or any part of the Restricted Units under a registration
statement under the Securities Act and applicable state securities Laws or
under
an exemption from such registration available thereunder (including, without
limitation, if available, Rule 144 promulgated thereunder). If
such Purchaser should in the future decide to dispose of any of the Restricted
Units, such Purchaser understands and agrees (a) that it may do so only
(i) in compliance with the Securities Act and applicable state securities
law, as then in effect, or pursuant to an exemption therefrom (including
Rule
144 under the Securities Act) or (ii) in the manner contemplated by any
registration statement pursuant to which such securities are being offered,
and
(b) that stop-transfer instructions to that effect will be in effect with
respect to such securities. Notwithstanding the foregoing, any
Purchaser may at any time enter into one or more total return swaps with
respect
to such Purchaser’s Restricted Units with a third party or transfer Restricted
Units to an Affiliate of such Purchaser provided that any such transaction
is
exempt from registration under the Securities Act; provided,
however, that the restrictions in this Section 4.04 shall not
apply, in
the case of a Purchaser that is a large multi-unit investment or commercial
banking organization, to activities in the normal course of trading of units
of
such Purchaser other than those of the unit participating in this transaction
(the “Participating Unit”), so long as such other units are not acting on
behalf of the Participating Unit and have not been provided with confidential
information regarding the Partnership by the Participating Unit.
Section
4.05 Nature
of Purchaser. Such
Purchaser represents and warrants to, and covenants and agrees with, the
Partnership that, (a) it is an “accredited investor” within the meaning of
Rule 501(a) of Regulation D or a “qualified institutional buyer” under Rule 144A
as promulgated by the Commission pursuant to the Securities Act and (b) by
reason of its business and financial experience it has such knowledge,
sophistication and experience in business and financial matters so as to
be
capable of evaluating the merits and risks of the prospective investment
in the
Restricted Units, is able to bear the economic risk of such investment and,
at
the present time, would be able to afford a complete loss of such
investment.
Section
4.06 Receipt
of Information; Authorization. Such
Purchaser acknowledges that it (a) has access to the SEC Documents with the
Commission and (b) has been provided a reasonable opportunity to ask questions
of and receive answers from Representatives of the Partnership regarding
such
matters.
Section
4.07 Restricted
Securities. Such
Purchaser understands that the Restricted Units it is purchasing are
characterized as “restricted securities” under the federal securities Laws
inasmuch as they are being acquired from the Partnership in a transaction
not
involving a public offering and that under such Laws and applicable regulations
such securities may be resold without registration under the Securities Act
only
in certain limited circumstances. In this connection, such Purchaser
represents that it is knowledgeable with respect to Rule 144 of the
Commission promulgated under the Securities Act.
Section
4.08 Certain
Fees. No
fees or commissions will be payable by such Purchaser to brokers, finders,
or
investment bankers with respect to the sale of any of the Restricted Units
or
the consummation of the transactions contemplated by this
Agreement.
Section
4.09 Legend. It
is understood that the certificates evidencing the Restricted Units will
bear
the following legend:
“These
securities have not been registered under the Securities Act of 1933, as
amended
(the “Securities Act”), or the securities laws of any state or other
jurisdiction. These securities may not be sold, offered for sale,
pledged or hypothecated except pursuant to an effective registration statement
under the Securities Act or pursuant to an exemption from registration
thereunder, in each case in accordance with all applicable securities laws
of
the states or other jurisdictions, and in the case of a transaction exempt
from
registration, such securities may only be transferred if the transfer agent
for
such securities has received documentation satisfactory to it that such
transaction does not require registration under the Securities
Act.”
Section
4.10 No
Substantial Security Holders. Such
Purchaser represents and warrants to, and covenants and agrees with, the
Partnership that, on the date hereof and as of the date of Closing (before
giving effect to the purchase of Restricted Units pursuant to this Agreement),
such Purchaser and its Affiliates (a) hold beneficial ownership of less
than five percent of the Units of the Partnership outstanding on the date
hereof
and (b) hold beneficial ownership of less than five percent of the outstanding
voting power of the Partnership.
Section
4.11 No
Side Agreements. There
are no other agreements by, among or between such Purchaser and any of its
Affiliates, on the one hand, and other of the other Purchasers or their
Affiliates, on the other hand, with respect to the transactions contemplated
hereby nor promises or inducements for future transactions between or among
any
of such parties.
Section
4.12 Short
Selling. Such
Purchaser has not engaged in any Short Sales involving Units owned by it
between
the time it first began discussions with the Partnership or the Placement
Agent
about the transaction contemplated by this Agreement and the date hereof
(it
being understood that the entering into of a total return swap should not
be
considered a short sale) provided, however, this Section 4.12
shall not apply, in the case of a Purchaser that is a large multi-unit
investment or commercial banking organization, to activities in the normal
course of trading units of such Purchaser other than the Participating Unit
so
long as such other units are not acting on behalf of the Participating Unit
and
have not been provided with confidential information regarding the Partnership
by the Participating Unit.
ARTICLE
V
COVENANTS
Section
5.01 Issuer
Lock-Up/Subsequent Issuances of Units. Without
the written consent of the holders of two-thirds of the Restricted Units,
from
the signing date of the Agreement until the date that the Registration Statement
covering the Restricted Units has become effective, the Partnership shall
not
grant, issue or sell any Units or other equity or voting securities of the
Partnership or any securities convertible thereinto or exchangeable therefor,
or
take any other action that may result in the issuance of any of the foregoing,
other than (i) the issuance of options or Units under the Legacy LTIP, or
the
issuance of Units upon the exercise of awards issued under the Legacy LTIP
and
(ii) the issuance or sale of Units at a price no less than 110% of the Unit
Purchase Price (including, and not net of, any underwriting discounts and
commissions or placement fees). Notwithstanding the foregoing, the
Partnership shall not sell, offer for sale or solicit offers to buy any security
(as defined in the Securities Act) that would be integrated with the sale
of the
Restricted Units in a manner that would require the registration under the
Securities Act of the sale of the Restricted Units to the
Purchasers.
Section
5.02 Purchaser
Lock-Ups. Without
the prior written consent of the Partnership, each Purchaser agrees that
neither
such Purchaser nor any of its Affiliates will offer, sell, pledge or otherwise
transfer or dispose of any of its Restricted Units prior to the Lock-Up Date;
provided, however, that any Purchaser may, (i) subject Section 8.04(c),
enter into one or more total return swaps or similar transactions at any
time
with respect to the Restricted Units purchased by such Purchaser provided
that
such transaction is exempt from registration under the Securities Act and
(ii)
transfer its Restricted Units to an Affiliate of such Purchaser or to any
other
Purchaser or an Affiliate of such other Purchaser, provided that any such
Affiliate transferee agrees to the restrictions set forth in this Section
5.02;
provided, further, this Section 5.02 shall not apply, in the
case of a Purchaser that is a large multi-unit investment or commercial banking
organization, to activities in the normal course of trading units of such
Purchaser other than the Participating Unit, so long as such other units
are not
acting on behalf of the Participating Unit and have not been provided with
confidential information regarding the Partnership by the Participating
Unit. Furthermore, without the prior written consent of the
Partnership, no Purchaser may sell any Units of the Partnership for a period
of
two (2) trading days following the date of the earnings release with respect
to
the third quarter of 2007.
Section
5.03 Taking
of Necessary Action. Each
of the Parties hereto shall use its commercially reasonable efforts promptly
to
take or cause to be taken all action and promptly to do or cause to be done
all
things necessary, proper or advisable under applicable Law and regulations
to
consummate and make effective the transactions contemplated by this
Agreement. Without limiting the foregoing, the Partnership and each
Purchaser shall use its commercially reasonable efforts to make all filings
and
obtain all consents of Governmental Authorities that may be necessary or,
in the
reasonable opinion of the other Parties, as the case may be, advisable for
the
consummation of the transactions contemplated by the Basic
Documents.
Section
5.04 Disclosure;
Public Filings. The
Partnership may, without prior written consent or notice, (i) file this
Agreement as an exhibit to an Exchange Act report and (ii) disclose information
with respect to any Purchaser solely to the extent required by applicable
Law or
the rules and regulations of the Commission or any regulatory agency, the
NASDAQ
Global Select Market or other exchange on which securities of the Partnership
are listed or traded.
Section
5.05 Other
Actions. The
Partnership shall file prior to the Closing a supplemental listing application
with the NASDAQ Global Select Market to list the Restricted Units.
Section
5.06 Use
of Proceeds. The
Partnership will use the collective proceeds from the sale of the Restricted
Units to repay the outstanding indebtedness under the Partnership’s revolving
credit facility and to fund future acquisitions.
Section
5.07 Partnership
Fees. The
Partnership agrees that it will indemnify and hold harmless each of the
Purchasers from and against any and all claims, demands, or liabilities for
broker’s, finder’s, placement, or other similar fees or commissions incurred by
the Partnership or alleged to have been incurred by the Partnership in
connection with the sale of Restricted Units or the consummation of the
transactions contemplated by this Agreement.
Section
5.08 Purchaser
Fees. Each
Purchaser agrees, severally and not jointly with the other Purchasers, that
it
will indemnify and hold harmless the Partnership from and against any and
all
claims, demands, or liabilities for broker’s, finder’s, placement, or other
similar fees or commissions incurred by such Purchaser or alleged to have
been
incurred by such Purchaser in connection with the purchase of Restricted
Units
or the consummation of the transactions contemplated by this
Agreement.
Section
5.09 Certain
Special Allocations of Book and Taxable Income. To
the extent that the Unit Purchase Price is less than the trading price of
the
Units on the NASDAQ Global Select Market as of the Closing Date, the General
Partner intends to specially allocate items of book and taxable income to
the
Purchasers so that their capital accounts in their Restricted Units are
consistent, on a per-Unit basis, with the capital accounts of the other holders
of Units (and thus to assure fungibility of all Units). Such special
allocation will not occur until the earlier to occur of any taxable period
of
the Partnership ending upon, or after, (a) a book-up event or book-down event
in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f) or a sale
of
all or substantially all of the assets of the Partnership occurring after
the
date of the issuance of the Restricted Units, (b) the transfer of the Restricted
Units to a Person that is not an Affiliate of the Purchaser, in which case,
such
allocation shall be made only with respect to the Restricted Units so
transferred, or (c) the General Partner’s receipt of written notice from a
holder of the holder’s election to trigger such allocation and true up the
capital accounts (the “Capital Account True-Up Election”) with respect to such
holder’s Restricted Units. A Purchaser holding a Restricted Unit
shall be required to provide notice to the General Partner of the Partnership
of
a transfer of a Restricted Unit to a Person who is not an Affiliate of the
Purchaser no later than the last Business Day of the calendar year during
which
such transfer occurred, unless by virtue of clause (a) or (b) above, the
general
partner of the Partnership has determined that the Units are consistent,
on a
per-Unit basis, with the capital accounts of the other holders of
Units. However, the sole and exclusive remedy for any holder’s
failure to provide any such notice shall be the enforcement of the remedy
of
specific performance against such holder and there will be no monetary
damages.
Section
5.10 Non-Disclosure;
Interim Public Filings. The
Partnership shall, on or before 8:30 a.m., New York time, on the first Business
Day following execution of this Agreement, issue a press release acceptable
to
the Purchasers disclosing all material terms of the transactions contemplated
hereby. Before
8:30 a.m., New York time, on the first Business Day following the Closing
Date,
the Partnership shall file a Current Report on Form 8-K with the Commission
(the
“8-K Filing”) describing the terms of the transactions contemplated by this
Agreement and the other Basic Documents and including as exhibits to such
Current Report on Form 8-K this Agreement and the other Basic Documents,
in the
form required by the Exchange Act.
Section
5.11 Acknowledgement
and Agreement Regarding Short Sales. Each
Purchaser understands and acknowledges, severally and not jointly with any
other
Purchaser, that the Commission currently takes the position that coverage
of
short sales of securities “against the box” prior to the effective date of a
registration statement is a violation of Section 5 of the Securities
Act. Each Purchaser agrees, severally and not jointly, that it will
not engage in any Short Sales that result in the disposition of the Units
acquired hereunder by the Purchaser until such time as the Shelf Registration
Statement (as defined in the Registration Rights Agreement) is declared
effective (it being understood that the entering into of a total return swap
should not be considered a Short Sale of Units); provided,
however, this Section 5.11 shall not apply, in the case of a
Purchaser
that is a large multi-unit investment or commercial banking organization,
to
activities in the normal course of trading units of such Purchaser other
than
the Participating Unit, so long as such other units are not acting on behalf
of
the Participating Unit and have not been provided with confidential information
regarding the Partnership by the Participating Unit. No Purchaser
makes any representation, warranty or covenant hereby that it will not engage
in
Short Sales in the securities of the Partnership otherwise owned by such
Purchaser or borrowed from a broker after the date the press release
contemplated by this Agreement is issued by the Partnership.
ARTICLE
VI
CLOSING
CONDITIONS
Section
6.01 Conditions
to the Closing.
(a) Mutual
Conditions. The respective obligation of each Party to consummate
the purchase and issuance and sale of the Restricted Units shall be subject
to
the satisfaction on or prior to the Closing Date of each of the following
conditions (any or all of which may be waived by a particular Party on behalf
of
itself in writing, in whole or in part, to the extent permitted by applicable
Law):
(i) no
Law shall have been enacted or promulgated, and no action shall have been
taken,
by any Governmental Authority of competent jurisdiction which temporarily,
preliminarily or permanently restrains, precludes, enjoins or otherwise
prohibits the consummation of the transactions contemplated by this Agreement
or
makes the transactions contemplated by this Agreement illegal; and
(ii) there
shall not be pending any Action by any Governmental Authority seeking to
restrain, preclude, enjoin or prohibit the transactions contemplated by this
Agreement.
(b) Each
Purchaser’s Conditions. The respective obligation of each
Purchaser to consummate the purchase of its Restricted Units shall be subject
to
the satisfaction on or prior to the Closing Date of each of the following
conditions (any or all of which may be waived by a particular Purchaser on
behalf of itself in writing, in whole or in part, to the extent permitted
by
applicable Law):
(i) the
Partnership shall have performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied
with
by the Partnership on or prior to the Closing Date;
(ii) the
representations and warranties of the Partnership contained in this Agreement
that are qualified by materiality or Partnership Material Adverse Effect
shall
be true and correct when made and as of the Closing Date and all other
representations and warranties shall be true and correct in all material
respects when made and as of the Closing Date, in each case as though made
at
and as of the Closing Date (except that representations made as of a specific
date shall be required to be true and correct as of such date
only);
(iii) since
the date of this Agreement, no Partnership Material Adverse Effect shall
have
occurred and be continuing;
(iv) the
Partnership shall have submitted to the NASDAQ Global Select Market a
Notification Form: Listing of Additional Units with respect to the Restricted
Units and no notice of delisting from the NASDAQ Global Select Market shall
have
been received by the Partnership with respect to the Units; and
(v) the
Partnership shall have delivered, or caused to be delivered, to the Purchasers
at the Closing, the Partnership’s closing deliveries described in Section
6.02.
(c) The
Partnership’s Conditions. The obligation of the Partnership to
consummate the sale of the Restricted Units to each of the Purchasers shall
be
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions with respect to each Purchaser individually and not
the
Purchasers jointly (any or all of which may be waived by the Partnership
in
writing, in whole or in part, to the extent permitted by applicable
Law):
(i) each
Purchaser shall have performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied
with
by that Purchaser on or prior to the Closing Date;
(ii) the
representations and warranties of each Purchaser contained in this Agreement
that are qualified by materiality or Purchaser Material Adverse Effect shall
be
true and correct when made and as of the Closing Date and all other
representations and warranties of the Purchasers shall be true and correct
in
all material respects when made and as of the Closing Date, in each case
as
though made at and as of the Closing Date (except that representations made
as
of a specific date shall be required to be true and correct as of such date
only);
(iii) since
the date of this Agreement, no Purchaser Material Adverse Effect shall have
occurred and be continuing; and
(iv) each
Purchaser shall have delivered, or caused to be delivered, to the Partnership
at
the Closing, such Purchaser’s closing deliveries described in Section
6.03.
Section
6.02 Partnership
Deliveries. At
the Closing, subject to the terms and conditions of this Agreement, the
Partnership will deliver, or cause to be delivered, to each
Purchaser:
(a) The
Restricted Units by delivering certificates (bearing the legend set forth
in
Section 4.08 and meeting the requirements of the Partnership Agreement)
evidencing such Restricted Units at the Closing, all free and clear of any
Liens, encumbrances or interests of any other party other than restrictions
on
transfer imposed by federal and state securities Laws and those imposed by
such
Purchaser; provided, however, that such certificates representing the Restricted
Units may be delivered within seven (7) Business Days of the Closing
Date;
(b) Copies
of (i) the Certificate of Limited Partnership of the Partnership and (ii)
the
Certificate of Formation of the General Partner, each certified by the Secretary
of State of the State of Delaware, dated as of a recent date, and as certified
pursuant to Section 6.02(h);
(c) A
certificate of the Secretary of State of the State of Delaware, dated as
of a
recent date, that each of the Partnership and the General Partner is in good
standing;
(d) A
cross-receipt, dated the Closing Date, executed by the Partnership and delivered
to each Purchaser certifying that it has received the Commitment Purchase
Amount
with respect to the Restricted Units issued and sold to such
Purchaser;
(e) The
Registration Rights Agreement in substantially the form attached to this
Agreement as Exhibit A, which shall have been duly executed by the
Partnership;
(f) An
opinion addressed to the Purchasers from legal counsel to the Partnership,
dated
the Closing Date, substantially similar in substance to the form of opinion
attached to this Agreement as Exhibit B;
(g) An
Officer’s Certificate substantially in the form attached to this Agreement as
Exhibit C; and
(h) A
certificate of the Secretary or Assistant Secretary of the General Partner, on
behalf of itself and the Partnership, certifying as to (i) the Certificate
of
Limited Partnership of the Partnership; (ii) the Certificate of Formation
of the
General Partner; (iii) the Partnership Agreement; (iv) the limited liability
company agreement of the General Partner; (v) board resolutions authorizing
the
execution and delivery of the Basic Documents and the consummation of the
transactions contemplated thereby and hereby; and (vi) the incumbent officers
authorized to execute the Basic Documents, setting forth the name and title
and
bearing the signatures of such officers.
Section
6.03 Purchaser
Deliveries. At
the Closing, subject to the terms and conditions of this Agreement, each
Purchaser will deliver, or cause to be delivered:
(a) payment
to the Partnership of such Purchaser’s Commitment Purchase Amount by wire
transfer(s) of immediately available funds;
(b) the
Registration Rights Agreement in substantially the form attached to this
Agreement as Exhibit A, which shall have been duly executed by such
Purchaser;
(c) a
cross-receipt, dated the Closing Date, executed by such Purchaser and delivered
to the Partnership certifying that such Purchaser has received certificates
evidencing the number of Restricted Units set forth below the name of such
Purchaser on the attached signature pages; and
(d) an
Officer’s Certificate substantially in the form attached to this Agreement as
Exhibit D.
ARTICLE
VII
INDEMNIFICATION,
COSTS AND EXPENSES
Section
7.01 Indemnification
by the Partnership. The
Partnership agrees to indemnify each Purchaser and its Representatives
(collectively, “Purchaser Related Parties”) from, and hold each of them harmless
against, any and all losses, actions, suits, proceedings (including any
investigations, litigation or inquiries), demands and causes of action, and,
in
connection therewith, and promptly on demand, pay and reimburse each of them
for
all costs, losses, liabilities, damages, or expenses of any kind or nature
whatsoever, including the reasonable fees and disbursements of counsel and
all
other reasonable expenses incurred in connection with investigating, defending
or preparing to defend any such matter that may be incurred by them or asserted
against or involve any of them as a result of, arising out of, or in any
way
related to the breach of any of the representations, warranties or covenants
of
the Partnership contained herein; provided that such claim for
indemnification relating to a breach of a representation or warranty is made
prior to the expiration of such representation or warranty; and provided
further, that no Purchaser Related Party shall be entitled to recover
special, consequential (including lost profits) or punitive damages. Notwithstanding
anything to the contrary, consequential damages shall not be deemed to include
diminution in value of the Restricted Units, which is specifically included
in
damages covered by Purchaser Related Parties’ indemnification.
Section
7.02 Indemnification
by Purchasers. Each
Purchaser agrees, severally and not jointly, to indemnify the Partnership,
the
General Partner and their respective Representatives (collectively, “Partnership
Related Parties”) from, and hold each of them harmless against, any and all
losses, actions, suits, proceedings (including any investigations, litigation,
or inquiries), demands and causes of action and, in connection therewith,
and
promptly upon demand, pay and reimburse each of them for all costs, losses,
liabilities, damages, or expenses of any kind or nature whatsoever, including,
without limitation, the reasonable fees and disbursements of counsel and
all
other reasonable expenses incurred in connection with investigating, defending
or preparing to defend any such matter that may be incurred by them or asserted
against or involve any of them as a result of, arising out of, or in any
way
related to the breach of any of the representations, warranties or covenants
of
such Purchaser contained herein; provided that such claim for
indemnification relating to a breach of a representation or warranty is made
prior to the expiration of such representation or warranty; and provided
further, that no Partnership Related Party shall be entitled to recover
special, consequential (including lost profits) or punitive
damages.
Section
7.03 Indemnification
Procedure. Promptly
after any Partnership Related Party or Purchaser Related Party (hereinafter,
the
“Indemnified Party”) has received notice of any indemnifiable claim hereunder,
or the commencement of any action or proceeding by a third party, which the
Indemnified Party believes in good faith is an indemnifiable claim under
this
Agreement, the Indemnified Party shall give the indemnitor hereunder (the
“Indemnifying Party”) written notice of such claim or the commencement of such
action or proceeding, but failure to so notify the Indemnifying Party will
not
relieve the Indemnifying Party from any liability it may have to such
Indemnified Party hereunder except to the extent that the Indemnifying Party
is
materially prejudiced by such failure. Such notice shall state the nature
and
the basis of such claim to the extent then known. The
Indemnifying Party shall have the right to defend and settle, at its own
expense
and by its own counsel who shall be reasonably
acceptable
to the Indemnified Party, any such matter as long as the Indemnifying Party
pursues the same diligently and in good faith. If the Indemnifying Party
undertakes to defend or settle, it shall promptly notify the Indemnified
Party
of its intention to do so, and the Indemnified Party shall cooperate with
the
Indemnifying Party and its counsel in all commercially reasonable respects
in
the defense thereof and the settlement thereof. Such cooperation shall
include
furnishing the Indemnifying Party with any books, records and other information
reasonably requested by the Indemnifying Party and in the Indemnified Party’s
possession or control. Such cooperation of the Indemnified Party
shall be at the cost of the Indemnifying Party. After the
Indemnifying Party has notified the Indemnified Party of its intention
to
undertake to defend or settle any such asserted liability, and for so long
as
the Indemnifying Party diligently pursues such defense, the Indemnifying
Party
shall not be liable for any additional legal expenses incurred by the
Indemnified Party in connection with any defense or settlement of such
asserted
liability; provided, however, that the Indemnified Party shall be
entitled (i) at its expense, to participate in the defense of such asserted
liability and the negotiations of the settlement thereof and (ii) if (A)
the
Indemnifying Party has failed to assume the defense or employ counsel reasonably
acceptable to the Indemnified Party or (B) if the defendants in any such
action
include both the Indemnified Party and the Indemnifying Party and counsel
to the
Indemnified Party shall have concluded that there may be reasonable defenses
available to the Indemnified Party that are different from or in addition
to
those available to the Indemnifying Party or if the interests of the Indemnified
Party reasonably may be deemed to conflict with the interests of the
Indemnifying Party, then the Indemnified Party shall have the right to
select a
separate counsel and to assume such legal defense and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed
by the
Indemnifying Party as incurred. Notwithstanding any other provision
of this Agreement, the Indemnifying Party shall not settle any indemnified
claim
without the consent of the Indemnified Party, unless the settlement thereof
imposes no liability or obligation on, involves no admission of wrongdoing
or
malfeasance by, and includes a complete release from liability of, the
Indemnified Party.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01 Interpretation. Article,
Section, Schedule, and Exhibit references are to this Agreement, unless
otherwise specified. All references to instruments, documents, contracts,
and
agreements are references to such instruments, documents, contracts, and
agreements as the same may be amended, supplemented, and otherwise modified
from
time to time, unless otherwise specified. The word “including” shall mean
“including but not limited to.” Whenever any Party has an obligation
under the Basic Documents, the expense of complying with such obligation
shall
be an expense of such Party unless otherwise specified therein. Whenever
any determination, consent or approval is to be made or given by a Purchaser
under the Basic Documents, such action shall be in such Purchaser’s sole
discretion unless otherwise specified therein. If any provision in
the Basic Documents is held to be illegal, invalid, not binding, or
unenforceable, such provision shall be fully severable and the Basic Documents
shall be construed and enforced as if such illegal, invalid, not binding,
or
unenforceable provision had never comprised a part of the Basic Documents,
and
the remaining provisions shall remain in full force and effect. The Basic
Documents have been reviewed and negotiated by sophisticated parties with
access
to legal counsel and shall not be construed against the drafter.
Section
8.02 Survival
of Provisions. The
representations and warranties set forth in Sections 3.02, 3.04, 3.06, 3.07,
3.12, 3.13, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09 and 4.10 of this Agreement
shall survive the execution and delivery of this Agreement indefinitely,
and the
other representations and warranties set forth in this Agreement shall survive
for a period of twelve (12) months following the Closing Date regardless
of any
investigation made by or on behalf of the Partnership or any
Purchaser. The
covenants made in this Agreement or any other Basic Document shall survive
the
closing of the transactions described herein and remain operative and in
full
force and effect regardless of acceptance of any of the Restricted Units
and
payment therefor and repayment, conversion or repurchase thereof. All
indemnification obligations of the Partnership and the Purchasers pursuant
to
this Agreement and the provisions of Article VII shall remain operative and
in
full force and effect unless such obligations are expressly terminated in
a
writing by the Parties, regardless of any purported general termination of
this
Agreement.
Section
8.03 No
Waiver; Modifications in Writing.
(a) Delay. No
failure or delay on the part of any Party in exercising any right, power,
or
remedy hereunder shall operate as a waiver thereof, nor shall any single
or
partial exercise of any such right, power, or remedy preclude any other or
further exercise thereof or the exercise of any right, power, or remedy.
The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to a Party at Law or in equity or
otherwise.
(b) Specific
Waiver. Except as otherwise provided herein, no amendment,
waiver, consent, modification, or termination of any provision of this Agreement
or any other Basic Document shall be effective unless signed by each of Parties
or each of the original signatories thereto affected by such amendment, waiver,
consent, modification, or termination. Any amendment, supplement or modification
of or to any provision of this Agreement or any other Basic Document, any
waiver
of any provision of this Agreement or any other Basic Document, and any consent
to any departure by the Partnership from the terms of any provision of this
Agreement or any other Basic Document shall be effective only in the specific
instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Agreement, no notice to or
demand
on the Partnership in any case shall entitle the Partnership to any other
or
further notice or demand in similar or other circumstances.
Section
8.04 Binding
Effect; Assignment
(a) Binding
Effect. This Agreement shall be binding upon the Partnership, each
Purchaser, and their respective successors and permitted
assigns. Except as expressly provided in this Agreement, this
Agreement shall not be construed so as to confer any right or benefit upon
any
Person other than the Parties to this Agreement and as provided in Article
VII,
and their respective successors and permitted assigns.
(b) Assignment
of Restricted Units. All or any portion of a Purchaser’s Restricted Units
purchased pursuant to this Agreement may be sold, assigned or pledged by
such
Purchaser, subject to compliance with applicable securities Laws, Section
4.04, Section 5.02 and the Registration Rights
Agreement.
(c) Assignment
of Rights. Each Purchaser under this Agreement may assign all or any portion
of its rights hereunder without the consent of the Partnership to (i) any
Affiliate of such Purchaser or (ii) in connection with a total return swap
or
similar transaction with respect to the Restricted Units purchased by such
Purchaser; provided, in each case, the assignee shall be deemed to be a
Purchaser hereunder with respect to such assigned rights and shall agree
to be
bound by the provisions of this Agreement. Except as expressly
permitted by this Section 8.04(c), such rights may not otherwise be
transferred except with the prior written consent of the Partnership (which
consent shall not be unreasonably withheld).
Section
8.05 Aggregation
of Restricted Units. All
Restricted Units held or acquired by Persons who are Affiliates of one another
shall be aggregated together for the purpose of determining the availability
of
any rights under this Agreement.
Section
8.06 Confidentiality
and Non-Disclosure. Notwithstanding
anything herein to the contrary, each Purchaser that has entered into a
confidentiality agreement in favor of the Partnership shall continue to be
bound
by such confidentiality agreement in accordance with the terms
thereof.
Section
8.07 Communications. All
notices and demands provided for hereunder shall be in writing and shall
be
given by regular mail, registered or certified mail, return receipt requested,
telecopy, air courier guaranteeing overnight delivery, electronic mail or
personal delivery to the addresses listed in Exhibit B of this Agreement
or to
such other address as the Partnership or such Purchaser may designate in
writing. All
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; at the time of transmittal, if
sent
via electronic mail; upon actual receipt if sent by registered or certified
mail, return receipt requested, or regular mail, if mailed; when receipt
acknowledged, if sent via facsimile; and upon actual receipt when delivered
by
air courier guaranteeing overnight delivery.
Section
8.08 Removal
of Legend. The
Partnership, at its sole cost, shall remove the legend described in Section
4.08
from the certificates evidencing the Restricted Units at the request of a
Purchaser submitting to the Partnership such certificates, together with
an
opinion of counsel of such Purchaser and other documentation, if required
by the
Partnership’s transfer agent, to the effect that such legend is no longer
required under the Securities Act or applicable state securities Laws, as
the
case may be, unless the Partnership, with the advice of counsel, reasonably
determines that such removal is inappropriate; provided that no opinion
of counsel shall be required by the Partnership in the event a Purchaser
is
effecting a sale of such Restricted Units pursuant to and in accordance with
Rule 144 under the Securities Act or an effective registration statement
and (i)
the transfer agent does not require an opinion of counsel or (ii) the Purchaser
provides counsel to the Partnership with such certificates or other evidence
reasonably requested in order for such counsel to render an opinion to the
transfer agent.
Section
8.09 Entire
Agreement. This
Agreement, the other Basic Documents and any confidentiality agreement executed
by a Purchaser in favor of the Partnership are intended by the Parties as
a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the Parties hereto and thereto
in respect of the
subject
matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
and
therein with respect to the rights granted by the Partnership or a Purchaser
set
forth herein and therein. This
Agreement, the other Basic Documents and any confidentiality agreement
executed
by a Purchaser in favor of the Partnership supersede all prior agreements
and
understandings between the Parties with respect to such subject
matter. The Schedules and Exhibits referred to herein and attached
hereto are incorporated herein by this reference, and unless the context
expressly requires otherwise, are incorporated in the definition of
“Agreement.”
Section
8.10 Governing
Law. This
Agreement will be construed in accordance with and governed by the Laws of
the
State of New York without regard to principles of conflicts of Laws that
would
apply the substantive law of some other jurisdiction.
Section
8.11 Execution
in Counterparts. This
Agreement may be executed in any number of counterparts and by different
Parties
hereto in separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
8.12 Expenses. The
Partnership hereby covenants and agrees to reimburse counsel to the Purchasers,
for reasonable and documented legal fees incurred in connection with the
negotiation, execution, delivery and performance of the Basic Documents and
the
transactions contemplated thereby, such reimbursable amount not to exceed
$75,000, subject to proration commensurate with each of the Purchaser’s
Commitment Amount. If any action at law or equity is necessary to
enforce or interpret the terms of the Basic Documents, the prevailing party
shall be entitled to reasonable attorney’s fees, out-of-pocket costs and
necessary disbursements in addition to any other relief to which such party
may
be entitled.
Section
8.13 Obligations
Limited to Parties to Agreement. Each
of the Parties hereto covenants, agrees and acknowledges that no Person other
than the Purchasers (and their permitted assignees) shall have any obligation
hereunder and that, notwithstanding that one or more of the Purchasers may
be a
corporation, partnership or limited liability company, no recourse under
this
Agreement or the other Basic Documents or under any documents or instruments
delivered in connection herewith or therewith shall be had against any former,
current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder or Affiliate of any of the Purchaser
or
any former, current or future director, officer, employee, agent, general
or
limited partner, manager, member, stockholder or Affiliate of any of the
foregoing, whether by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any applicable Law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach
to,
be imposed on or otherwise be incurred by any former, current or future
director, officer, employee, agent, general or limited partner, manager,
member,
stockholder or Affiliate of any of the Purchasers or any former, current
or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the foregoing, as such, for any
obligations of the Purchasers under this Agreement or the other Basic Documents
or any documents or instruments delivered in connection herewith or therewith
or
for any claim based on, in respect of or by reason of such obligation or
its
creation, except in each case for any assignee of a Purchaser
hereunder.
Section
8.14 Waiver
of Preemptive Right by General Partner. The
General Partner hereby waives (for itself and on behalf of its Affiliates)
its
preemptive rights provided under Sections 5.2(b) and Section 5.8 of the
Partnership Agreement with respect to the issuances of Partnership Securities
pursuant to this Agreement.
Section
8.15 Termination.
(a) Notwithstanding
anything herein to the contrary, this Agreement may be terminated at any
time at
or prior to the Closing by the mutual written consent of the Purchasers entitled
to purchase a majority of the Restricted Units and the Partnership.
(b) Notwithstanding
anything herein to the contrary, this Agreement shall automatically terminate
at
any time at or prior to the Closing:
(i) if
a statute, rule, order, decree or regulation shall have been enacted or
promulgated, or if any action shall have been taken by any Governmental
Authority of competent jurisdiction which permanently restrains, precludes,
enjoins or otherwise prohibits the consummation of the transactions contemplated
by this Agreement or makes the transactions contemplated by this Agreement
illegal; or
(c) In
the event of the termination of this Agreement as provided in Sections
8.15(a) or 8.15(b), this Agreement shall forthwith become null and
void. In the event of such termination, there shall be no liability
on the part of any Party hereto, except as set forth in Article VII
of this Agreement and except with respect to the requirement to comply with
any
confidentiality agreement in favor of the Partnership; provided that
nothing herein shall relieve any party from any liability or obligation with
respect to any willful breach of this Agreement.
Section
8.16 Exceptions.
Notwithstanding
Sections 4.04, 4.12, 5.02, and 5.11 with respect to Morgan Stanley & Co.,
Inc. and its Affiliates, the restrictions or representations, as applicable,
contained in Sections 4.04, 4.12, 5.02 and 5.11 shall only apply to Morgan
Stanley Strategic Investments, Inc. of Morgan Stanley as currently configured,
and shall not restrict or limit the activities of any area or division of
Morgan
Stanley & Co. or any of its Affiliates, other than Morgan Stanley Strategic
Investments, Inc. of Morgan Stanley as currently configured.
[Signature
Pages to Follow.]
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as
of the
date first above written.
| |
LEGACY
RESERVES L.P.
its
General Partner
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|
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By:
|
/s/ Steven
H. Pruett |
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Steven
H. Pruett |
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President,
Chief Financial
Officer and Secretary |
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PURCHASERS
Name
of
Purchaser: Alerion Equities,
LLC
Signature
of Authorized Signatory of Purchaser: /s/ Ronald J.
Bangs
Name
of
Authorized Signatory: Ronald J.
Bangs
Title
of
Authorized Signatory: Chief Operating Officer of Hartz Capital, Inc., The
Manager of
Email
Address of Purchaser:
noah.lerner@hartzcapital.com
Fax
Number of
Purchaser: 201-866-6387
Telephone
Number of
Purchaser: 201-272-6004
Address
for Notice of Purchaser: c/o Hartz Capital,
Inc.
400
Plaza
Drive
Attn: Noah
Lerner
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $1,999,980.00
Units: 97,560
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Calm Waters
Partnership
Signature
of Authorized Signatory of Purchaser: /s/ Richard S.
Strong
Name
of
Authorized Signatory: Richard S.
Strong
Title
of
Authorized Signatory: Managing
Partner
Fax
Number of
Purchaser: 414-453-9174
Telephone
Number of
Purchaser: 414-456-1136
Address
for Notice of Purchaser: 115 S. 84th Street, Suite
200
Attention: Susan
A.
Hollister
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
same
Subscription
Amount: $3,733,419.00
Units: 182,118
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Capital Ventures International by: Heights
Capital Management, Inc.
Signature
of Authorized Signatory of Purchaser: /s/ Martin
Kobinger
Name
of
Authorized Signatory: Martin
Kobinger
Title
of
Authorized Signatory: Investment
Manager
Fax
Number of
Purchaser: 415-403-6525
Telephone
Number of
Purchaser: 415-403-6500
Address
for Notice of Purchaser: c/o Heights Capital
Management
101
California Street, Suite
3250
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $2,870,000.00
Units: 140,000
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Harvest Infrastructure Partners Fund
LLC
Signature
of Authorized Signatory of Purchaser: /s/ Anthony
Merhige
Name
of
Authorized Signatory: Anthony
Merhige
Title
of
Authorized Signatory: CAO & General
Counsel
Fax
Number of
Purchaser: 610-995-9775
Telephone
Number of
Purchaser: 610-341-9700
Address
for Notice of Purchaser: c/o Harvest Fund Advisors
LLC
485
Devon Park Drive, Suite
110
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $1,179,980.00
Units: 57,560
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Harvest Sharing
LLC
Signature
of Authorized Signatory of Purchaser: /s/ Anthony
Merhige
Name
of
Authorized Signatory: Anthony
Merhige
Title
of
Authorized Signatory: CAO & General
Counsel
Fax
Number of
Purchaser: 610-995-9775
Telephone
Number of
Purchaser: 610-341-9700
Address
for Notice of Purchaser: c/o Harvest Fund Advisors
LLC
485
Devon Park Drive, Suite
110
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $820,000.00
Units: 40,000
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: HITE Hedge
LP
Signature
of Authorized Signatory of Purchaser: /s/ James
Jampel
Name
of
Authorized Signatory: James
Jampel
Title
of
Authorized
Signatory: President
Fax
Number of
Purchaser: 208-694-0433
Telephone
Number of
Purchaser: 617-630-1992
Address
for Notice of Purchaser: 215 Valentine
Street
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Lehman
Brothers
Attention: Daniel
Pan
HITE
Hedge
LP
399
Park
Avenue
Subscription
Amount: $1,545,700.00
Units: 75,400
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: HITE MLP
LP
Signature
of Authorized Signatory of Purchaser: /s/ James
Jampel
Name
of
Authorized Signatory: James
Jampel
Title
of
Authorized
Signatory: President
Fax
Number of
Purchaser: 208-694-0433
Telephone
Number of
Purchaser: 617-630-1992
Address
for Notice of Purchaser: 215 Valentine
Street
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Morgan
Stanley
Carmine
Taglione
Re: HITE
MLP
LP
2000
Westchester Avenue, Floor 1A
North
Subscription
Amount: $104,550.00
Units: 5,100
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Lehman Brothers
Inc.
Signature
of Authorized Signatory of Purchaser: /s/ Thomas
Regazzi
Name
of
Authorized Signatory: Thomas
Regazzi
Title
of
Authorized Signatory: Vice
President
Fax
Number of
Purchaser:
Telephone
Number of
Purchaser: 212-526-1955
Address
for Notice of Purchaser: 745 Seventh
Avenue
Attn: Managing
Director, Equity
Synthetics
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
DTCC/New
York window, A/C Lehman Brothers Inc.
Attn: Pat
Hurley, Telephone
212-855-2400
Subscription
Amount: $4,499,750.00
Units:
219,500
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Morgan Stanley Strategic Investments,
Inc.
Signature
of Authorized Signatory of Purchaser: /s/ Alan
Thomas
Name
of
Authorized Signatory: Alan
Thomas
Title
of
Authorized Signatory: Vice
President
Fax
Number of
Purchaser: 646-290-2603
Telephone
Number of
Purchaser: 212-762-4707
Address
for Notice of Purchaser: 1221 Avenue of the
Americas
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
same
Subscription
Amount: $7,l64,750.00
Units: 349,500
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Morgan Stanley Strategic Investments,
Inc.
Signature
of Authorized Signatory of Purchaser: /s/ Alan
Thomas
Name
of
Authorized Signatory: Alan
Thomas
Title
of
Authorized Signatory: Vice
President
Fax
Number of
Purchaser: 646-290-2603
Telephone
Number of
Purchaser: 212-762-4707
Address
for Notice of Purchaser: 1221 Avenue of the Americas, 40th
Floor
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
same
Subscription
Amount: $9,999,982.00
Units: 487,804
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: RCH Energy MLP Fund A,
L.P.
By:
RCH Energy MLP
Fund GP, L.P., Its General Partner
By: RR
Advisors, LLC, Its General
Partner
Signature
of Authorized Signatory of Purchaser: /s/ Robert
Raymond
Name
of
Authorized Signatory: Robert
Raymond
Title
of
Authorized
Signatory: Sole-Member
Fax
Number of Purchaser:
214-871-8683
Telephone
Number of
Purchaser: 214-871-8680
Address
for Notice of Purchaser: 200 Crescent Court, Suite
1060
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $61,500.00
Units: 3,000
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: RCH Energy MLP Fund,
L.P.
By:
RCH Energy MLP
Fund GP, L.P., Its General Partner
By: RR
Advisors, LLC, Its General
Partner
Signature
of Authorized Signatory of Purchaser: /s/ Robert
Raymond
Name
of
Authorized Signatory: Robert
Raymond
Title
of
Authorized
Signatory: Sole-Member
Fax
Number of Purchaser:
214-871-8683
Telephone
Number of
Purchaser: 214-871-8680
Address
for Notice of Purchaser: 200 Crescent Court, Suite
1060
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $4,938,491.00
Units: 240,902
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: RCH Energy Opportunity Fund II,
L.P.
By:
RCH Energy
Opportunity Fund II GP, L.P., Its General Partner
By: RR
Advisors, LLC, Its General
Partner
Signature
of Authorized Signatory of Purchaser: /s/ Robert
Raymond
Name
of
Authorized Signatory: Robert
Raymond
Title
of
Authorized
Signatory: Sole-Member
Fax
Number of Purchaser:
214-871-8683
Telephone
Number of
Purchaser: 214-871-8680
Address
for Notice of Purchaser: 200 Crescent Court, Suite
1060
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $4,999,991.00
Units: 243,902
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Salient
Advisors
Signature
of Authorized Signatory of Purchaser: /s/ Bruce G.
Garrison
Name
of
Authorized Signatory: Bruce G.
Garrison
Title
of
Authorized Signatory: Director -
REIT
Fax
Number of
Purchaser: 713-993-4698
Telephone
Number of
Purchaser: 713-993-4689
Address
for Notice of Purchaser: 4265 San Felipe, 8th
Floor
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $799,992.00
Units: 39,024
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Salient Trust
Co.
Signature
of Authorized Signatory of Purchaser: /s/ Stephen M.
Reckling
Name
of
Authorized Signatory: Stephen M.
Reckling
Title
of
Authorized Signatory: Managing
Director
Fax
Number of
Purchaser: 713-993-4698
Telephone
Number of
Purchaser: 713-993-4622
Address
for Notice of Purchaser: 4265 San Felipe, Suite
800
Attn: Sherry
Ashley
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $1,200,008.50
Units: 58,537
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Structured Finance Americas,
LLC
Signature
of Authorized Signatory of Purchaser: /s/ Sunil Hariani /
John Amone
Title
of
Authorized Signatory: Vice President/Vice
President
Fax
Number of
Purchaser: 646-259-3264
Telephone
Number of
Purchaser: 212-250-6340
Address
for Notice of Purchaser: Structured Finance Americas,
LLC
c/o
Deutsche Bank Securities,
Inc.
Attn: Jessica
Wingerath
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Structured
Finance Americas,
LLC
c/o
Deutsche Bank Securities,
Inc.
Attn: Angela
Lescailli
Subscription
Amount: $4,999,991.00
Units: 243,902
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Telemus Income Opportunity Fund
LP
Signature
of Authorized Signatory of Purchaser: /s/ Gregory A.
Reid
Name
of
Authorized Signatory: Gregory A.
Reid
Title
of
Authorized Signatory: Managing
Member
Fax
Number of
Purchaser: 713-621-1774
Telephone
Number of
Purchaser: 713-621-1777
Address
for Notice of Purchaser: 4400 Post Oak
Parkway
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Morgan
Stanley & Co.
Incorporated
440
S. LaSalle St., One Financial
Place
Attn: Stephen
Jeffers
For
Further Credit:
Telemus
Income Opportunity Fund,
LP
Subscription
Amount: $1,250,500.00
Units: 61,000
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Tortoise Gas and Oil
Corporation
Signature
of Authorized Signatory of Purchaser: /s/ Zachary A.
Hamel
Name
of
Authorized Signatory: Zachary A.
Hamel
Title
of
Authorized Signatory: Senior
Vice-President
Fax
Number of
Purchaser: 913-981-1021
Telephone
Number of
Purchaser: 913-981-1020
Address
for Notice of Purchaser: 10801 Mastin Blvd., Ste.
222
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
US
Bank,
N.A.
Attn: David
Neumann
1555
North Rivercenter Drive, Suite
302
Subscription
Amount: $14,999,993.50
Units: 731,707
Signature
Page to Unit Purchase Agreement
PURCHASERS
Name
of
Purchaser: Wingate Capital
Ltd.
Signature
of Authorized Signatory of Purchaser: /s/ Matthew
Hinerfeld
Name
of
Authorized Signatory: Matthew
Hinerfeld
Title
of
Authorized Signatory: Managing Director and Deputy General
Counsel
Fax
Number of
Purchaser: 312-267-7300
Telephone
Number of
Purchaser: 312-395-2100
Address
for Notice of Purchaser: c/o Citadel Limited
Partnership
131
South Dearborn
Street
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $7,499,986.50
Units: 365,853
Signature
Page to Unit Purchase Agreement
