CLASS A CONVERTIBLE PREFERRED UNIT PURCHASE AGREEMENT dated August 2, 2017 (this “Agreement”), is by and among Genesis Energy, L.P., a Delaware limited partnership (the “Partnership”), and each of the Purchasers listed in Schedule A attached hereto, including the Purchaser Designees (as defined below) (each referred to herein as a “Purchaser” and collectively, the “Purchasers”).
WHEREAS, the Partnership desires to issue and sell to the Purchasers, and each Purchaser desires to purchase from the Partnership, certain Class A Convertible Preferred Units (as defined below);
WHEREAS, concurrently with the consummation of the transactions contemplated by this Agreement, the General Partner (as defined below) will execute and deliver an amendment (the “Partnership Agreement Amendment”) to the Partnership Agreement (as defined below) in the form attached as Exhibit D, which Partnership Agreement Amendment shall establish the terms of the Class A Convertible Preferred Units;
WHEREAS, concurrently with the consummation of the transactions contemplated by this Agreement, the Partnership and the Purchasers will enter into a registration rights agreement, in the form attached as Exhibit E (the “Registration Rights Agreement”), pursuant to which the Partnership will provide the Purchasers with certain registration rights with respect to the Purchased Units and Conversion Units (each as defined below); and
WHEREAS, concurrently with the consummation of the transactions contemplated by this Agreement, the General Partner, the Partnership and the Purchasers will enter into a board observer agreement, in the form attached as Exhibit F (the “Board Observer Agreement”), pursuant to which the Partnership and the General Partner (as defined below) will provide certain board observer rights to the Purchasers;
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:
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, inquiry, 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 and the definition of Subsidiary, “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. For the avoidance of doubt, for purposes of this Agreement, any fund, entity or account managed, advised or sub-advised, directly or indirectly, by a Purchaser or any of its Affiliates, or the direct or indirect equity owners, including general partners of a Purchaser or any of its Affiliates, shall be considered an Affiliate of such Purchaser.
“Agreement” has the meaning given to such term in the introductory paragraph hereof.
“Amended Partnership Agreement” means the Partnership Agreement, as amended as of the Closing Date, including pursuant to the Partnership Agreement Amendment.
“Anticipated Closing Date” has the meaning given to such term in Section 2.02(a).
“Anti-Corruption Laws” means anti-bribery and anti-corruption laws, regulations or ordinances applicable to the Partnership, its Subsidiaries and the Joint Ventures and their respective operations from time to time, including (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, (ii) the United Kingdom Bribery Act, as amended from time to time, (iii) anti-bribery legislation promulgated by the European Union and implemented by its member states, and (iv) legislation adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
“Atlantis” has the meaning given to such term in Section 3.01(d).
“Board” means the board of directors of the General Partner.
“Board Observer Agreement” has the meaning given to such term in the recitals to this Agreement.
“Business Day” means any day other than (a) a Saturday or Sunday or (b) a day on which banks located in Houston, Texas or New York, New York are authorized or obligated to close.
“Class A Convertible Preferred Units” means Class A Convertible Preferred Units representing limited partner interests in the Partnership, the terms of which will be set forth in the Amended Partnership Agreement.
“Class B Units” has the meaning given to such term in Section 3.01(b).
“Closing” means the consummation of the purchase and sale of the Purchased Units on the Closing Date hereunder.
“Closing Date” has the meaning given to such term in Section 2.03.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Common Units” means Common Units – Class A representing limited partner interests in the Partnership, the terms of which are set forth in the Partnership Agreement.
“Confidentiality Agreements” means the confidentiality agreements entered into by the Partnership and each of the Purchasers or their Affiliates, as applicable, in connection with the transactions contemplated hereby, as may be amended from time to time.
“Conversion Units” means Common Units issuable upon conversion of any of the Class A Convertible Preferred Units.
“Credit Agreement” means, the Fourth Amended and Restated Credit Agreement dated as of June 30, 2014, among the Partnership, Xxxxx Fargo Bank, National Association as administrative agent and issuing bank, Bank of America, N.A. and Bank of Montreal, as co-syndication agents, U.S. Bank National Association, as documentation agent, and the lenders party thereto, as amended from time to time.
“Xxxxxxx Registration Rights Agreement” means that certain Registration Rights Agreement dated July 25, 2007, as amended from time to time, among the Partnership, Xxxxxxx Petroleum Products, L.L.C., a Louisiana limited liability company, Xxxxxxx Transport, Inc., a Louisiana corporation, Transport Company, an Arkansas corporation, Terminal Service, Inc., a Louisiana corporation, and Sunshine Oil and Storage, Inc., a Louisiana corporation.
“Delaware LLC Act” means the Delaware Limited Liability Company Act, as amended from time to time.
“Delaware LP Act” means the Delaware Revised Uniform Limited Partnership Act, as amended from time to time.
“Designation Notice” has the meaning given to such term in Section 2.01(b).
“Designated Units” has the meaning given to such term in Section 2.01(b).
“Drop-Dead Date” means the “Outside Date” as such term is defined in the Tronox SPA.
“Environmental Laws” has the meaning given to such term in Section 3.22.
“Equity Distribution Agreement” means the Equity Distribution Agreement, dated June 27, 2016, by and among the Partnership and RBC Capital Markets, LLC, BNP Paribas Securities Corp., Capital One Securities, Inc., Deutsche Bank Securities Inc., DNB Markets, Inc., Fifth Third Securities, Inc., Scotia Capital (USA) Inc. and SMBC Nikko Securities America, Inc.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations and published interpretations thereunder.
“ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or any entity, whether or not incorporated, that is under common control with an entity, trade or business within the meaning of Section 4001(b)(1) of ERISA that includes or included the first
entity, trade or business, or that is, or was at the relevant time, a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA. Any former ERISA Affiliate of the Partnership or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of the Partnership for purposes of this definition with respect to the period it was an ERISA Affiliate of the Partnership and with respect to liabilities arising after such period for which the Partnership could be liable under the Code or ERISA.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.
“Expense Notice” has the meaning given to such term in Section 2.02(a).
“Funding Notice” has the meaning given to such term in Section 2.02(a).
“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.
“General Partner” means Genesis Energy, LLC, a Delaware limited liability company and the general partner of the Partnership.
“Genesis Marine” has the meaning given to such term in Section 3.34.
“Governmental Authority” means, with respect to any Person, 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, instrumentality, official or other regulatory (including self-regulated organizations or other non-governmental regulatory authorities) 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, any of its Subsidiaries, the Joint Ventures or any of their Properties.
“GP LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of the General Partner, dated as of December 28, 2010, as amended from time to time.
“Hazardous Materials” has the meaning given to such term in Section 3.22.
“IDR Registration Rights Agreement” means that certain Registration Rights Agreement, dated December 28, 2010, among the Partnership and the unitholders party thereto.
“Indemnified Party” has the meaning given to such term in Section 7.03.
“Indemnifying Party” has the meaning given to such term in Section 7.03.
“Independence Hub” has the meaning given to such term in Section 3.01(d).
“Intellectual Property” has the meaning given to such term in Section 3.18.
“Issuer Agreement” has the meaning given to such term in Section 8.13.
“Joinder Agreement” has the meaning given to such term in Section 2.01(b).
“Joint Ventures” means, collectively, each of the direct or indirect joint ventures of which the Partnership and its Subsidiaries own less than a 50% interest in the outstanding equity, which are, as of the date hereof, Odyssey, Neptune, Manta Ray Offshore, Nautilus, Atlantis, T&P Syngas and Sandhill (the latter two Persons being deemed Joint Ventures hereunder).
“KKR” means Rodeo Finance Aggregator LLC.
“Law” or “Laws” means any federal, state, local or foreign order, writ, injunction, judgment, settlement, award, decree, statute, law, ordinance, rule or regulation.
“Lien” means any mortgage, claim, pledge, lien (statutory or otherwise), security agreement, conditional sale or trust receipt or a lease, consignment or bailment, preference or priority, assessment, deed of trust, charge, easement, servitude, right of first offer, right of first refusal or other encumbrance upon or with respect to any property of any kind; provided, however, the term Lien shall not include a security interest in the equity interest in a Subsidiary or Joint Venture that is required to be pledged under such Subsidiary’s or Joint Venture’s organizational documents to the other equity holders of such Person.
“Limited Partnership Subsidiaries” and “Limited Partnership Subsidiary” have the meaning given to such terms in Section 3.01(d).
“Manta Ray Offshore” has the meaning given to such term in Section 3.01(d).
“Money Laundering Laws” has the meaning given to such term in Section 3.20.
“Multiemployer Plan” has the meaning give to such term in Section 3.36.
“Nautilus” has the meaning given to such term in Section 3.01(d).
“Neptune” has the meaning given to such term in Section 3.01(d).
“ Non-Recourse Party” has the meaning given to such term in Section 7.02.
“NYSE” means The New York Stock Exchange.
“Odyssey” has the meaning given to such term in Section 3.01(d).
“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.
“Operating Partnership” means Genesis Crude Oil, L.P., a Delaware limited partnership.
“Organizational Documents” means (a) in the case of a corporation, its charter and by-laws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement; (c) in the case of a limited liability company, its articles of organization, certificate of formation or similar organizational documents and its
operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a trust, its certificate of trust, certificate of formation or similar organizational document and its trust agreement or other similar agreement; and (e) in the case of any other entity, the organizational and governing documents of such entity.
“Partnership” has the meaning given to such term in the introductory paragraph of this Agreement.
“Partnership Agreement” means the Fifth Amended and Restated Agreement of Limited Partnership, dated as of December 28, 2010, as amended as of the date of this Agreement.
“Partnership Agreement Amendment” has the meaning given to such term in the recitals to this Agreement.
“Partnership Bank Account” means the bank account designated as such by the Partnership pursuant to the Funding Notice.
“Partnership Documents” means the contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, swap agreements, leases or other instruments or agreements to which any of the Partnership or its Subsidiaries is a party or by which any of the Partnership or its Subsidiaries is bound or to which any of the property or assets of the Partnership or its Subsidiaries is subject that are material with respect to the Partnership and its Subsidiaries taken as a whole.
“Partnership Financial Statements” has the meaning given to such term in Section 3.07.
“Partnership Material Adverse Effect” means any change, event, condition or effect that, individually or together with any other changes, events, conditions or effects, (a) has had or would be reasonably likely to have a material adverse effect on (i) the legality, validity or enforceability of any Transaction Agreement, or (ii) the financial condition, business, assets or results of operations of the Partnership and its Subsidiaries, considered as a single enterprise, or (b) the ability of the Partnership or the General Partner to perform its obligations under, or to consummate the transactions contemplated by, the Transaction Agreements or the Tronox SPA in full on a timely basis. Notwithstanding the foregoing, a “Partnership Material Adverse Effect” shall not include any effect to the extent resulting or arising from: (i) a general deterioration in the economy or changes in the general state of the markets or industries in which the Partnership and its Subsidiaries operate (including, for the avoidance of doubt, adverse changes (A) in commodity prices, (B) in capital spending by participants or their customers in the energy sector, and (C) otherwise associated with changes in the energy sector and the resulting effect on the Partnership and its Subsidiaries, taken as a whole), except, with respect to this clause (i), to the extent that the Partnership and its Subsidiaries, considered as a single enterprise, are adversely affected in a disproportionate manner as compared to other industry participants; (ii) any deterioration in the condition of the capital markets, except, with respect to this clause (ii), to the extent that the Partnership and its Subsidiaries, considered as a single enterprise, are adversely affected in a disproportionate manner as compared to other industry participants; (iii) the outbreak or escalation of hostilities involving the United States, the declaration by the United States of a national emergency, acts of war (whether or not declared) or the occurrence of any other calamity or crisis, including acts of terrorism, hurricane, flood, tornado, earthquake or other natural disaster, that does not have a disproportionate effect on the
Partnership and its Subsidiaries, consolidated as a single enterprise; (iv) changes in GAAP or other accounting principles imposed upon the Partnership and its Subsidiaries or their respective businesses or any change in applicable Law, or the interpretation thereof, except, in each case, to the extent such change has a disproportionate effect on the Partnership and its Subsidiaries, considered as a single enterprise; (v) changes, in and of themselves, in the credit rating of the Partnership’s securities or the market price or trading volume of the Common Units (except that the underlying causes of any such changes may be considered in determining whether a Partnership Material Adverse Effect has occurred); (vi) any failure, in and of itself, of the Partnership to meet any internal or external projections, forecasts or estimates of revenue or earnings for any period (except that the underlying causes of any such failures may be considered in determining whether a Partnership Material Adverse Effect has occurred); or (vii) other than for purposes of Section 3.06, the issuance of the Class A Convertible Preferred Units.
“Partnership Related Parties” has the meaning given to such term in Section 7.02.
“Party” or “Parties” means the Partnership and the Purchasers party to this Agreement, individually or collectively, as the case may be.
“Per Unit Price” means $33.71.
“Permits” means any approval, authorizations, consents, licenses, permits, variances, waivers, grants, franchises, tariffs, concessions, exemptions, orders, registrations or certificates of a Governmental Authority.
“Permitted Loan” means any bona fide loans or other extensions of credit entered into by a holder of Class A Convertible Preferred Units or Conversion Units or any of its Affiliates with one or more financial institutions and secured by a pledge, hypothecation or other grant of security interest in Class A Convertible Preferred Units, Conversion Units and/or related assets and/or cash, cash equivalents and/or letters of credit.
“Permitted Transaction” means any derivative transaction or repurchase or reverse repurchase agreement entered into by a holder of Class A Convertible Preferred Units or Conversion Units or any of its Affiliates with one or more financial institutions, which may or may not be secured by a pledge, hypothecation or other grant of security interest in Class A Convertible Preferred Units, Common Units and/or related assets and/or cash, cash equivalents and/or letters of credit, including, without limitation, any transaction pursuant to which a Purchaser transfers Class A Convertible Preferred Units or Common Units held by such Purchaser, provided that the Purchaser retains the economic effects of ownership of such Class A Convertible Preferred Units following such transfer.
“Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization, Governmental Authority, or any other form of entity.
“PIK Units” means a Class A Convertible Preferred Unit issued pursuant to a Class A Convertible Preferred Unit distribution.
“Plan” has the meaning given to such term in Section 3.36.
“Poseidon” has the meaning given to such term in Section 3.01(d).
“Poseidon Credit Agreement” has the meaning given to such term in Section 3.01(d).
“Property” or “Properties” means any interest or interests in any kind of property or asset, whether real, personal or mixed, or tangible or intangible (including Intellectual Property).
“Purchase Price” means, with respect to each Purchaser, the dollar amount set forth opposite such Purchaser’s name under the heading “Purchase Price” on Schedule A hereto, as adjusted in accordance with Section 8.11, if applicable; provided, that in no event will the Purchase Price applicable to such Purchaser be increased without the prior written consent of such Purchaser.
“Purchased Units” means, with respect to each Purchaser, the number of Class A Convertible Preferred Units, rounded up to the nearest whole unit, equal to the quotient determined by dividing (a) the Purchase Price paid by such Purchaser at the Closing by (b) the Per Unit Price.
“Purchaser” and “Purchasers” have the meanings given to such terms in the introductory paragraph of this Agreement.
“Purchaser Designee” has the meaning given to such term in Section 2.01(b).
“Purchaser Material Adverse Effect” means any material adverse effect on the ability of a Purchaser to perform its obligations under the Transaction Agreements on a timely basis.
“Purchaser Related Parties” has the meaning given to such term in Section 7.01.
“Registration Rights Agreement” has the meaning given to such term in the recitals to this Agreement.
“Reimbursable Expenses” means the reasonable and documented out-of-pocket expenses, including legal expenses, actually incurred by or on behalf of the Purchasers prior to the Closing in connection with the consummation of the transactions contemplated by the Transaction Agreements; provided, however, that the Reimbursable Expenses shall not exceed $750,000 in the aggregate.
“Representatives” of any Person means the Affiliates, control persons, officers, directors, employees, agents, advisors, counsel, investment bankers, accountants and other representatives of such Person.
“Sanctioned Person” means a Person that is (a) the subject of Sanctions, (b) located in or organized under the laws of a country or territory which is the subject of country- or territory-wide Sanctions (including Cuba, Iran, North Korea, Sudan, Syria, or the Crimea region), or (c) majority-owned or controlled by any of the foregoing.
“Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (i) the United States (including the Department of Treasury, Office of Foreign Assets Control and the Department of State), (ii) the European Union and enforced by its member states, (iii) the United Nations, (iv) Her Majesty’s Treasury, or (v) other similar governmental bodies with regulatory authority over the Partnership, its Subsidiaries or the Joint Ventures from time to time.
“Sandhill” has the meaning given to such term in Section 3.01(d).
“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and the rules and regulations promulgated thereunder or implementing the provisions thereof.
“SEC” means the United States Securities and Exchange Commission.
“SEC Documents” has the meaning given to such term in Section 3.07.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.
“Subsidiary,” as used herein, means, as to any Person, any corporation, partnership, limited liability company or other entity controlled, or with respect to which 50% or more of the outstanding equity securities are owned, by such Person directly or indirectly through one or more intermediaries. For purposes of this definition, “control” of a Person means the power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Notwithstanding the above, for purposes of this definition and this Agreement, T&P Syngas, Sandhill, Odyssey, Neptune, Manta Ray Offshore, Nautilus and Atlantis shall not be Subsidiaries of the Partnership.
“T&P Syngas” has the meaning given to such term in Section 3.01(d).
“Taxes” means all federal, state, local or foreign taxes, charges, fees, levies or other assessments, including income, gross receipts, excise, real and personal property, profits, estimated, severance, occupation, social security, production, capital gains, capital stock, goods and services, environmental, employment, withholding, stamp, value added, alternative or add-on minimum, sales, transfer, use, license, payroll and franchise taxes or any other tax, custom, duty or governmental fee, or other like assessment or charge of any kind whatsoever, imposed by the United States, or any state, county, local or foreign government or subdivision or agency thereof, and such term shall include any interest, penalties, fines, related liabilities or additions to tax attributable to such taxes, charges, fees, levies or other assessments.
“Tax Returns” means any report, return, declaration or other information supplied to any taxing authority in connection with Taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated Tax.
“Transaction Agreements” means, collectively, this Agreement, the Registration Rights Agreement, the Partnership Agreement Amendment, the Board Observer Agreement and any amendments, supplements, continuations or modifications thereto. References to the Partnership Agreement Amendment shall be deemed to include the Amended Partnership Agreement unless the context requires otherwise.
“Transaction Fee” has the meaning given to such term in Section 2.02(b).
“Tronox SPA” means that certain Stock Purchase Agreement, dated as of August 2, 2017, by and among Tronox US Holdings Inc., Tronox Alkali Corporation, Tronox Limited (solely for the purposes set forth therein) and the Partnership. A true and correct copy of the Tronox SPA has been furnished to the Purchasers.
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 SEC) and in compliance as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto.
SALE AND PURCHASE
SECTION 2.01 Sale and Purchase.
(a) Subject to the terms and conditions hereof, the Partnership will issue and sell to each Purchaser on the Closing Date, and each Purchaser hereby agrees, severally and not jointly, to purchase from the Partnership on the Closing Date, such Purchaser’s respective Purchased Units, as set forth on Schedule A hereto.
(b) By written notice to the Partnership (a “Designation Notice”), a Purchaser may designate an Affiliate or Affiliates or another Purchaser or Purchasers (a “Purchaser Designee”) to acquire all or any portion of the Purchased Units otherwise issuable to such Purchaser at Closing (such Purchased Units, the “Designated Units”), and such Purchaser Designee shall, if not already a signatory to this Agreement, execute and deliver to the Partnership a joinder agreement, in substantially the form attached hereto as Exhibit C (a “Joinder Agreement”), pursuant to which such Purchaser Designee shall agree (i) to join and become a party to this Agreement; (ii) to be bound by all covenants, agreements, representations, warranties and acknowledgments attributable to the designating Purchasers hereunder, as if made by, and with respect to, such Purchaser Designee; and (iii) to perform all obligations and duties required of the designating Purchaser with respect to such Purchased Units. Upon receipt by the Partnership of (x) a Designation Notice, executed by the designating Purchaser and acknowledged in writing by the Purchaser Designee, specifying the name of the Purchaser Designee and the number of Purchased Units to be designated thereby, and (y) a fully executed Joinder Agreement, if applicable, Schedule A and Schedule 8.05 hereto shall be amended, without further action of any Party hereto, to include such Purchaser Designee and, with respect to Schedule A, to reflect the designation of the Designated Units from the designating Purchaser to such Purchaser Designee.
SECTION 2.02 Funding Notices; Transaction Fee.
(a) On or prior to the fifteenth (15th) Business Day prior to the date on which the Partnership reasonably anticipates the Closing to occur (the “Anticipated Closing Date”), the Partnership shall deliver a written notice (the “Funding Notice”) to each of the Purchasers (i) specifying the Anticipated Closing Date, (ii) directing each such Purchaser to pay the Purchase Price for its Purchased Units by wire transfer(s) of immediately available funds to the Partnership Bank Account, prior to 10:00 a.m. Central Time on the Closing Date, and (iii) specifying wiring instructions for wiring funds into the Partnership Bank Account. Within three (3) Business Days following the delivery by the Partnership of the Funding Notice, each Purchaser shall deliver a written notice (the “Expense Notice”) to the Partnership, specifying the amount of such Purchaser’s Reimbursable Expenses.
(b) At the Closing the Partnership will pay a transaction fee equal to 2.00% of each Purchaser’s Purchase Price (the “Transaction Fee”), payable by (as directed by each Purchaser) reduction of such Purchaser’s Purchase Price or by direct payment to such Purchaser or an Affiliate thereof. With respect to KKR, the Transaction Fee will be paid directly to Kohlberg Kravis Xxxxxxx & Co. L.P.; provided that a portion of such Transaction Fee may be structured as a placement fee paid directly by the Partnership to a broker-dealer Affiliate of KKR.
SECTION 2.03 Closing. Subject to the terms and conditions hereof, the Closing shall take place remotely via electronic exchange of documents and signatures on the first Business Day on which the conditions set forth in Section 6.01 shall have been satisfied or waived (other than those conditions that are by their terms to be satisfied at Closing, including the concurrent consummation of the transactions contemplated by the Tronox SPA) (the date of the Closing being referred to herein as the “Closing Date”); provided that the Closing Date shall not be earlier than the date set forth in the applicable Funding Notice unless mutually agreed by the Parties.
SECTION 2.04 Independent Nature of Purchasers’ Obligations and Rights. The respective representations, warranties and obligations of each Purchaser under the Transaction Agreements are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the representations and warranties or the performance of the obligations of any other Purchaser under any Transaction Agreement. Nothing contained in any Transaction Agreement, 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 with respect to such obligations or the transactions contemplated by the Transaction Agreements. Each Purchaser shall be entitled to independently protect and enforce its rights, including the rights arising out of this Agreement or out of the Registration Rights Agreement, 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 each of the Purchasers that the representations and warranties set forth in this Article III are true and correct as of the date of this Agreement and as of the Closing Date.
SECTION 3.01 Capitalization.
(a) The Purchased Units and PIK Units shall have those rights, preferences, privileges and restrictions governing the Class A Convertible Preferred Units that will be set forth in the Amended Partnership Agreement.
(b) As of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 122,539,221 Common Units and 39,997 Common Units — Class B (“Class B Units”). The only issued and outstanding general partner interests of the Partnership are the noneconomic interests of the General Partner, described in the Partnership Agreement. All of the outstanding Common Units and Class B Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required
by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act). Schedule B attached hereto contains a complete and accurate list of all of the owners of Class B Units, including the number of Class B Units held by each.
(c) Other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan and the Genesis Energy, L.P. 2010 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of Partnership equity (or securities convertible into or exchangeable for Common Units or any other class of Partnership equity). The Partnership has no outstanding 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 (as defined in the Partnership Agreement) of the Partnership may vote. Except as set forth in the first sentence of this Section 3.01(c), there are no outstanding or authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Partnership, any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section 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 or any of its Subsidiaries.
(d) The Partnership, directly or indirectly, owns (A) 100% of the partnership interests in the Operating Partnership (including the General Partner’s ownership of 0.01% of the partnership interests in the Operating Partnership), (B) 100% of the partnership or equity interests in each of the General Partner, Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, and Genesis Syngas Investments, L.P., a Delaware limited partnership (collectively, the “Limited Partnership Subsidiaries” and each a “Limited Partnership Subsidiary”) (including the General Partner’s ownership of 0.01% of the partnership interests in each Limited Partnership Subsidiary), (C) 100% of the equity interests in each other Subsidiary not listed in clauses (A) and (B) of this Section 3.01(d), (D) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (E) 50% of the outstanding limited liability company interests in Sandhill Group, L.L.C., a Mississippi limited liability company (“Sandhill”), (F) 64% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), (G) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), (H) 80% of the equity interests in Independence Hub, LLC, a Delaware limited liability company (“Independence Hub”), and (I) 25.67% of the equity interests in Neptune Pipeline Company, L.L.C., a Delaware limited liability company (“Neptune”) (which as of the date of this Agreement owns 100% of the equity interests in each of Nautilus Pipeline Company, L.L.C., a Delaware limited liability company (“Nautilus”), and Manta Ray Offshore Gathering Company, L.L.C., a Delaware limited liability company (“Manta Ray Offshore”) (which as of the date of this Agreement owns 50% of the equity interests in Atlantis Offshore, LLC, a Delaware limited liability company (“Atlantis”))), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the SEC Documents (defined below) or that certain Revolving Credit Agreement, dated as of February 27, 2015, by and among the Company,
Xxxxx Fargo Bank, National Association, as Administrative Agent, Issuing Bank and Swingline Lender, DNB Markets, Inc., MUFG Union Bank, N.A. and Mizuho Bank, Ltd., as Co-Syndication Agents, Sumitomo Mitsui Banking Corporation, as Documentation Agent and each of the lenders party thereto (as amended, modified, supplemented or restated from time to time, the “Poseidon Credit Agreement”)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the Organizational Documents of the Partnership’s Subsidiaries and the Joint Ventures, as applicable) and non-assessable (except as non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware LLC Act or any analogous statute in the jurisdiction of formation of any Subsidiary and Sandhill, or the Organizational Documents of the Partnership’s Subsidiaries and the Joint Ventures, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for T&P Syngas, Sandhill, Odyssey, Neptune, Nautilus, Manta Ray Offshore and Atlantis, neither the Partnership nor any of its Subsidiaries owns, directly or indirectly, any shares of capital stock or other securities of, or interest in, any other Person (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other Person. Schedule C attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Securities Act).
(e) The General Partner is the sole general partner of the Partnership and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary, in each case held free and clear of all Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the SEC Documents). Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to the extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
(f) The Partnership’s currently outstanding Common Units are listed for trading on the NYSE and the Partnership has not received any notice of delisting. The issuance and sale of the Purchased Units and issuance of Common Units upon conversion of the Purchased Units do not contravene NYSE rules and regulations.
SECTION 3.02 Formation and Qualification. Each of the General Partner, the Partnership and the Partnership’s Subsidiaries has been duly formed and is validly existing and in good standing under the Laws of the State or other jurisdiction of its organization and has the requisite power and authority, and has all material governmental licenses, authorizations, consents and approvals necessary, to own, lease, use or operate 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 be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect. Each of the General Partner, the Partnership and the Partnership’s Subsidiaries is duly qualified or licensed and in good standing as a foreign corporation, limited partnership, limited liability company or unlimited liability company, as applicable, and is authorized to do business in each jurisdiction in which the ownership or leasing of its Properties or the character of its operations makes such qualification necessary, except where the failure to obtain such qualification, license, authorization or good standing would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect.
SECTION 3.03 Authority; Enforceability. The Partnership and the General Partner have all necessary limited partnership and limited liability company, as applicable, power and authority to execute, deliver and perform their obligations under the Transaction Agreements to which they are parties and to consummate the transactions contemplated thereby; the execution, delivery and performance by the Partnership and the General Partner of the Transaction Agreements to which they are parties and the consummation of the transactions contemplated thereby have been duly authorized by all necessary action on their part; and, assuming the due authorization, execution and delivery by the other parties thereto, each of the Transaction Agreements to which either the Partnership or the General Partner is a party will constitute the legal, valid and binding obligations of the Partnership or the General Partner, as applicable, 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 3.04 Valid Issuance. The offer and sale of the Purchased Units and the limited partner interests represented thereby will be duly authorized by the Partnership pursuant to the Amended Partnership Agreement and, when issued and delivered to the Purchasers against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by and the Amended Partnership Agreement), non-assessable (except as such non-assessability 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 Amended Partnership Agreement and under applicable state and federal securities Laws. Upon issuance in accordance with the terms of the Amended Partnership Agreement, the Conversion Units and PIK Units will be duly authorized by the Partnership pursuant to the Amended Partnership Agreement and will be validly issued, fully paid (to the extent required by the Amended Partnership Agreement), non-assessable (except as such non-assessability 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 Amended Partnership Agreement and under applicable state and federal securities Laws.
SECTION 3.05 Compliance with Law. Neither the Partnership, any of its Subsidiaries, nor, to the Partnership’s knowledge, any of the Joint Ventures is in violation of any judgment, decree or order or any Law applicable to the Partnership, its Subsidiaries or, to the Partnership’s knowledge, the Joint Ventures, except as would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect. The Partnership, its Subsidiaries and, to the Partnership’s knowledge, the Joint Ventures 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 be reasonably likely to have, individually or in the aggregate, a Partnership Material Adverse Effect, and none of the Partnership, any such Subsidiary, or, to the Partnership’s knowledge, any such Joint Venture 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 reasonably be likely to have, individually or in the aggregate, a Partnership Material Adverse Effect. None of the Partnership, any of its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures, or any director, officer,
agent, employee, Affiliate or other Person acting on behalf of the Partnership or any of its Subsidiaries has, in the course of its actions for, or on behalf of, the Partnership or any of its Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds, (iii) violated or is in violation of any provision of any applicable Anti-Corruption Law, or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
SECTION 3.06 No Consents; Violations, Etc. None of the Partnership, any of its Subsidiaries, or, to the Partnership’s knowledge, any of the Joint Ventures is in violation of its respective Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any Partnership Document, except for such violations or defaults (other than with respect to the Organizational Documents) that would not reasonably be likely to have, individually or in the aggregate, a Partnership Material Adverse Effect. The execution, delivery and performance by the Partnership of the Transaction Agreements to which it is a party and all other agreements and instruments in connection with the transactions contemplated by the Transaction Agreements, and compliance by the Partnership with the terms and provisions hereof and thereof, do not and will not (i) 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, (ii) conflict with or result in a violation of any provision of the Certificate of Limited Partnership of the Partnership, as amended, or the Partnership Agreement or any Organizational Documents of any of the Partnership’s Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures, (iii) 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 (A) any note, bond, mortgage, license, or loan or credit agreement to which the Partnership, any of its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures is a party or by which the Partnership, any of its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures or any of their respective Properties may be bound or (B) any other agreement, instrument or obligation, or (iv) 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, any of its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures, except in the cases of clauses (iii) and (iv) where such consent, approval or notice has been obtained or where such violation, conflict, breach, default (or right of termination, acceleration or cancellation), failure to receive consent or approval or to provide notice, or Lien, in each case with respect to the foregoing provisions of this Section 3.06 would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect, or except in the case of clause (iv), for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership SEC Documents or the Poseidon Credit Agreement. No approval from the holders of outstanding Common Units or Class B Units is required under the Partnership Agreement or the rules of the NYSE in connection with the Partnership’s issuance of the Purchased Units, PIK Units or Conversion Units to the Purchasers.
SECTION 3.07 SEC Documents. The Partnership has timely filed with the SEC all forms, registration statements, reports, schedules and statements required to be filed by it under the Exchange Act or the Securities Act (all such documents filed on or prior to the date of this Agreement but after January 1, 2017, but specifically excluding any documents “furnished”, collectively, the “SEC
Documents”). The SEC Documents, including any audited or unaudited financial statements and any notes thereto or schedules included therein (the “Partnership Financial Statements”), at the time filed (in the case of the registration statements, solely on the dates of effectiveness) (except to the extent corrected by a subsequently filed Partnership 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 in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be, and (iii) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto. The Partnership Financial Statements 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 SEC) and 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 and status of the business of the Partnership as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended.
SECTION 3.08 Independent Accountants. Ernst & Young LLP is an independent registered public accounting firm with respect to the Partnership as required by the Securities Act and the Public Company Accounting Oversight Board and neither Ernst & Young LLP nor Deloitte & Touche LLP has resigned or been dismissed as independent public accountants 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 3.09 Approvals. 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 the Transaction Agreements to which it is a party or the issuance and sale of the Purchased Units, PIK Units or Conversion Units, except (a) as required by the SEC in connection with the Partnership’s obligations under the Registration Rights Agreement or (b) as may be required under the state securities or “Blue Sky” Laws.
SECTION 3.10 MLP Status. For each taxable year since its formation, the Partnership has met the gross income requirements of Section 7704(c)(2) of the Code, and accordingly the Partnership is and has been properly treated as a partnership for U.S. federal income tax purposes and for any other applicable tax purposes. The Partnership expects to meet, after giving effect to the transactions contemplated as a result of the acquisitions pursuant to the Tronox SPA (and assuming that the assets of Tronox are held by the Partnership for U.S. federal income tax purposes), the gross income requirements of Section 7704(c)(2) of the Code for the 2017 taxable year, and each subsequent taxable year.
SECTION 3.11 Investment Company Status. The Partnership is not, and after giving effect to the sale of the Purchased Units contemplated hereby will not be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended from time to time and the rules and regulations of the SEC promulgated thereunder.
SECTION 3.12 Internal Accounting Controls. The Partnership and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
SECTION 3.13 Insurance. The Partnership and its Subsidiaries 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 taken as a whole. The Partnership does not have any reason to believe that it or any Subsidiary 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 3.14 Licenses. Each of the Partnership and its Subsidiaries has all necessary permits, licenses, authorizations, consents and approvals and has made all necessary filings required under any applicable Law and has obtained all necessary licenses, authorizations, consents and approvals from other Persons, in order to conduct their respective businesses except where the failure to obtain such licenses, authorizations, consents and approvals would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect; neither the Partnership nor any of its Subsidiaries is in violation of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such permit, license, authorization, consent or approval or any Law applicable to the Partnership or any of its Subsidiaries, except where such violation, default, revocation or modification would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect.
SECTION 3.15 Litigation. There are no actions, suits, claims, investigations or proceedings pending or, to the Partnership’s knowledge, threatened or contemplated to which the Partnership, its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures or any of their respective directors or officers is or would be a party or of which any of their respective Properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or before or by any self-regulatory organization or other non-governmental regulatory authority (including the NYSE), except any such action, suit, claim, investigation or proceeding which, if resolved adversely to the Partnership, any Subsidiary or any Joint Venture, as the case may be, would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect. There are no legal or governmental actions, suits or proceedings pending (to the Partnership’s knowledge, in the case of Joint Ventures), or to the knowledge of the Partnership, threatened or contemplated that are required to be disclosed in the SEC Documents and are not so disclosed.
SECTION 3.16 No Material Adverse Change. Except as set forth in or contemplated by the SEC Documents and except for the execution and delivery of the Tronox SPA and this Agreement, since December 31, 2016, the Partnership and its Subsidiaries have conducted their business in the ordinary course, consistent with past practice, and there has been no (i) 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 therefor, otherwise than for fair value in the ordinary course of business,
(iii) material change in the Partnership’s accounting principles, practices or methods, (iv) incurrence of material indebtedness, other than indebtedness, the proceeds of which are used to fund a portion of the purchase price under the Tronox SPA; (v) material loss or interference with the business of the Partnership or any of its Subsidiaries from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the SEC Documents; (vi) change in the capital stock or long-term debt of the Partnership or any of its Subsidiaries, other than (A) the issuance of debt securities or Common Units, the proceeds of which are used to fund a portion of the purchase price under the Tronox SPA, (B) the issuance of Common Units under the Equity Distribution Agreement or (C) as set forth or contemplated in the SEC Documents; or (vii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, owners’ equity or results of operations of the Partnership or any of its Subsidiaries, otherwise than as set forth or contemplated in the SEC Documents.
SECTION 3.17 Title to Property. The Partnership and each of its Subsidiaries have good and marketable title to all property (real and personal) owned by any of them, free and clear of all Liens (except for such Liens as may exist under applicable Law and as may be imposed under the Partnership’s or its Subsidiaries’ credit facilities filed as exhibits to the SEC Documents or the Poseidon Credit Agreement or do not materially affect the value of such property and not materially interfere with the use made and proposed to be made of such property by the Partnership and each of its Subsidiaries); all the property held under lease by the Partnership or a Subsidiary of the Partnership is held thereby under valid, subsisting and enforceable leases, except as would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect.
SECTION 3.18 Possession of Intellectual Property. Each of the Partnership and its Subsidiaries owns or possesses all inventions, patent applications, patents, trademarks (both registered and unregistered), trade names, service names, copyrights, trade secrets and other proprietary information owned or licensed by it or which is necessary for the conduct of, or material to, its businesses (collectively, the “Intellectual Property”) except as would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect, and the Partnership is unaware of any claim to the contrary or any challenge by any other Person to the rights of the Partnership or any of its Subsidiaries with respect to the Intellectual Property. To the Partnership’s knowledge, neither the Partnership nor any of its Subsidiaries has infringed or is infringing the intellectual property of a third party, and neither the Partnership nor any of its Subsidiaries has received notice of a claim by a third party to the contrary.
SECTION 3.19 Absence of Labor Dispute. Except for such matters that have not been or would not reasonably be expected to have, individually or in the aggregate, as of the date hereof, a Partnership Material Adverse Effect, (i) there have been no strikes or lockouts in effect or, to the knowledge of the Partnership, threatened with respect to any employees of the Partnership or any of its Subsidiaries, (ii) there have been no demands for recognition, representation proceedings, petitions seeking representation, or union organizing or decertification activity pending or, to the knowledge of the Partnership, threatened involving any employees of the Partnership or any of its Subsidiaries, (iii) there has been no unfair labor practice charges, material grievances, labor disputes, complaints, or labor arbitration proceedings pending or, to the knowledge of the Partnership, threatened with respect to employees of the Partnership or any of its Subsidiaries, and (iv) there has been no slowdown, or work stoppage in effect or, to the knowledge of the Partnership, threatened with respect to any employees of
the Partnership or any of its Subsidiaries. The Partnership and its Subsidiaries are in compliance in all material respects with all applicable Laws respecting labor, employment and employment practices, including (A) hiring, termination, terms and conditions of employment, wages and hours, equal opportunity, classification of employees and contractors, including as exempt and non-exempt, and as employees and independent contractors, background checks, and legal authorization to work in the United States, (B) unfair labor practices, (C) collective bargaining, and (D) the Worker Adjustment and Retraining Notification Act of 1998, as amended, or any similar applicable state, local or foreign Law.
SECTION 3.20 Money Laundering Laws. The operations of the Partnership, its Subsidiaries and, to the Partnership’s knowledge, each of the Joint Ventures are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended from time to time, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Partnership, its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures with respect to the Money Laundering Laws is pending or, to the best knowledge of the Partnership, threatened.
SECTION 3.21 OFAC. None of the Partnership, any of its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures nor, to the knowledge of the Partnership, any director, officer, agent, employee, Affiliate or Person acting on behalf of the Partnership, its Subsidiaries or any of the Joint Ventures is a Sanctioned Person or has done business on behalf of the Partnership, any of its Subsidiaries or, to the Partnership’s knowledge, any of the Joint Ventures with or for the benefit of any Sanctioned Person or otherwise violated Sanctions; and the Partnership will not directly or indirectly use the proceeds of the sale of the Purchased Units, or lend, contribute or otherwise make available such proceeds to any Subsidiary, any of the Joint Ventures or other Person, for the purpose of transacting business with or financing the activities of any Sanctioned Person or otherwise in violation of Sanctions.
SECTION 3.22 Environmental Laws. The Partnership and its Subsidiaries and their respective Properties, assets and operations are in compliance with all, and the Partnership and each of its Subsidiaries hold all permits, authorizations and approvals required under, Environmental Laws (as defined below), except to the extent that failure to so comply or to hold such permits, authorizations or approvals would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect; there are no past, present or, to the Partnership’s knowledge, reasonably anticipated future events, conditions, circumstances, activities, practices, actions, omissions or plans that could reasonably be expected to give rise to any material costs or liabilities to the Partnership or any Subsidiary under, or to interfere with or prevent compliance by the Partnership or any Subsidiary with, Environmental Laws, except as would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect; neither the Partnership nor any of its Subsidiaries (i) is the subject of any investigation, (ii) has received any notice or claim, (iii) is a party to or affected by any pending or, to the Partnership’s knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered into any agreement, in each case relating to any alleged violation of any Environmental Law or any actual or alleged release or threatened release or cleanup at any location of any Hazardous Materials (as defined below) except as described in the SEC Documents or which would not be reasonably likely, individually or in the aggregate, to have a Partnership Material
Adverse Effect (as used herein, “Environmental Law” means any federal, state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment, injunction, permit, license, authorization or other binding requirement, or common law, relating to public health and safety as it relates to exposure to Hazardous Materials or to the protection, cleanup or restoration of the environment or natural resources, including those relating to the distribution, processing, generation, treatment, storage, disposal, transportation, other handling or release or threatened release of Hazardous Materials, and “Hazardous Materials” means any material (including pollutants, contaminants, hazardous or toxic substances or wastes), the presence of which may require investigation, control, or remediation or give rise to liability under any Environmental Law).
SECTION 3.23 Taxes. All Tax Returns required to be filed by the Partnership or any of its Subsidiaries have been timely filed and are complete and correct in all material respects, except for such failure to file or inaccuracy which would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect, and all Taxes due or claimed to be due from such entities have been timely paid, other than those being contested in good faith and for which adequate reserves have been provided, or where such failure to pay would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect. No examination or audit of any Tax Return relating to any Taxes of the Partnership or any of its Subsidiaries or with respect to any Taxes due from or with respect to such entities is currently in progress or, to the knowledge of the Partnership, threatened or contemplated, except for any such audit which would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect. Neither the Partnership nor any of its Subsidiaries has entered into any transaction that, as of the date of this Agreement, has been identified by the Internal Revenue Service in published guidance as a “listed transaction” as defined under Section 1.6011-4(b)(2) of the Treasury Regulations promulgated under the Code.
SECTION 3.24 Material Contracts. Neither the Partnership nor any Subsidiary has sent or received any communication regarding termination of, or intent not to renew, any of the material contracts or agreements referred to, filed as an exhibit to, or described in the SEC Documents, and no such termination or non-renewal has been threatened by the Partnership or any Subsidiary or, to the Partnership’s knowledge, any other party to any such contract or agreement.
SECTION 3.25 Disclosure Controls and Procedures. The Partnership has established and maintains and evaluates “disclosure controls and procedures” (as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act) and “internal control over financial reporting” (as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Partnership, including its consolidated subsidiaries, is made known to the General Partner’s Chief Executive Officer and its Chief Financial Officer by others within those entities, and such disclosure controls and procedures are effective to perform the functions for which they were established; the Partnership’s independent auditors and the Audit Committee of the Board have been advised of: (i) all significant deficiencies, if any, in the design or operation of internal controls which could adversely affect the Partnership’s ability to record, process, summarize and report financial data; and (ii) all fraud, if any, whether or not material, that involves management or other employees who have a role in the Partnership’s internal controls; all material weaknesses, if any, in internal controls have been identified to the Partnership’s independent auditors; since the date of the most recent evaluation of such disclosure controls and procedures and internal controls, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant
deficiencies and material weaknesses; the principal executive officers (or their equivalents) and principal financial officers (or their equivalents) of the Partnership have made all certifications required by the Xxxxxxxx-Xxxxx Act and any related rules and regulations promulgated by the SEC, and the statements contained in each such certification are complete and correct.
SECTION 3.26 Compliance with the Xxxxxxxx-Xxxxx Act. The Partnership, its Subsidiaries and the Partnership’s directors and officers are each in compliance in all material respects with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations of the SEC and the NYSE promulgated thereunder.
SECTION 3.27 No Preemptive Rights; No Registration Rights, Etc. No Person has the right, contractual or otherwise, to cause the Partnership to issue or sell to it any Common Units. No Person has the right to act as an underwriter or financial advisor to the Partnership in connection with the offer, sale or resale of the Purchased Units, PIK Units or Conversion Units. Except (i) as set forth in the Partnership Agreement, (ii) as set forth in the other Organizational Documents of the Partnership’s Subsidiaries and (iii) as provided in the Xxxxxxx Registration Rights Agreement and the IDR Registration Rights Agreement, (A) there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any capital stock or partnership or other equity interests of the Partnership or any of its Subsidiaries, and (B) no Person has the right, contractual or otherwise, to cause the Partnership to register under the Delaware LP Act any Common Units, in each case pursuant to any other agreement or instrument to which the Partnership or any of its Subsidiaries is a party or by which any one of them may be bound.
SECTION 3.28 No Registration Required. Assuming the accuracy of the representations and warranties of the Purchasers contained in this Agreement and their compliance with the agreements set forth in this Agreement, the sale and issuance of the Purchased Units (and the Conversion Units) pursuant to this Agreement is exempt from the registration requirements of the Securities Act, and neither the Partnership nor any authorized Representative acting on its behalf has taken or will take any action hereafter that would cause the loss of such exemption. The issuance and sale of the Purchased Units, the issuance of PIK Units and the issuance of the Conversion Units upon conversion of the Class A Convertible Preferred Units do not and will not contravene the rules and regulations of the NYSE.
SECTION 3.29 No Integration. Neither the Partnership nor any of its Affiliates has, directly or indirectly through any Representative, made any offers or sales of any security of the Partnership or solicited any offers to buy any security that is or will be integrated with the sale of the Purchased Units in a manner that would require the offer and sale of the Purchased Units to be registered under the Securities Act.
SECTION 3.30 Certain Fees. 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 Purchased Units or the consummation of the transactions contemplated by this Agreement or the Tronox SPA.
SECTION 3.31 Form S-3 Eligibility. The Partnership is eligible to register the resale of the Purchased Units, PIK Units and Conversion Units by the Purchasers on a registration statement on Form S-3 under the Securities Act.
SECTION 3.32 No Restrictions on Distributions. None of the Partnership, any of its Subsidiaries, or, to the Partnership’s knowledge, any of the Joint Ventures is a party to or otherwise bound by any instrument or agreement that limits or prohibits or could limit or prohibit, directly or indirectly, the Partnership from issuing the PIK Units or Conversion Units or redeeming the Purchased Units pursuant to their terms or making distributions on the Purchased Units or the Conversion Units, and none of the Partnership nor any of its Subsidiaries is a party to or otherwise bound by any instrument or agreement that limits or prohibits or could limit or prohibit, directly or indirectly, the Partnership or any of its Subsidiaries from making distributions on its limited or general partnership interests, limited liability company interests, or other equity interest, as the case may be, except in each case (a) pursuant to the Credit Agreement or any credit facilities of the Partnership’s wholly-owned Subsidiaries and, solely with respect to distributions made by the Joint Ventures or the Partnership’s non-wholly owned Subsidiaries, the Poseidon Credit Agreement and any other credit facilities of such non-wholly owned Subsidiaries or Joint Ventures, (b) for prohibitions mandated by the Laws of the jurisdiction of formation of such Subsidiary or Joint Venture and (c) solely with respect to distributions made by the Joint Ventures or the Partnership’s non-wholly owned Subsidiaries, as provided in the Organizational Documents of the Joint Ventures and such non-wholly owned Subsidiaries.
SECTION 3.33 Related Party Transactions. There are no business relationships or related party transactions involving the Partnership or any of its Subsidiaries or, to the Partnership’s knowledge, any other Person that are required to be described in the SEC Documents that have not been described as required.
SECTION 3.34 Genesis Marine, LLC. Genesis Marine, LLC, a Delaware limited liability company (“Genesis Marine”), is a citizen of the United States within the meaning of 46 U.S.C. Sec. 50501 for the purpose of operating the vessels in the trades in which Genesis Marine operates its vessels; after giving effect to the consummation of the transactions herein contemplated, Genesis Marine will remain a citizen of the United States within the meaning of 46 U.S.C. Sec. 50501 and qualified to engage in the coastwise trade of the United States.
SECTION 3.35 Tronox SPA. The Tronox SPA has been duly authorized and executed and validly delivered by the Partnership, and to the knowledge of the Partnership, by the other parties thereto, and constitutes a legal, valid and binding obligation of the Partnership, and to the knowledge of the Partnership, each of the other parties thereto, enforceable against each in accordance with its 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 event has occurred that constitutes, or if continued would, with notice, lapse of time or both, constitute a breach or default under the Tronox SPA, and the Partnership has not given or received any notice of termination or cancellation thereunder.
SECTION 3.36 ERISA Compliance. Each “employee benefit plan” (within the meaning of Section 3(3) of ERISA) for which the Partnership, its Subsidiaries or any of their respective ERISA Affiliates would have any liability (each a “Plan”) has been established and maintained in compliance with its terms and with the requirements of all applicable Laws, including ERISA and the Code, and, to the knowledge of the Partnership, each “multiemployer plan” (as defined in Section 4001 of ERISA) to which the Partnership, its Subsidiaries or any of their respective ERISA Affiliates contributes or contributed at any time (a “Multiemployer Plan”) is in compliance with all applicable Laws, including ERISA and the Code, in each case except as would not be reasonably likely, individually or in the
aggregate, to have a Partnership Material Adverse Effect. Except as would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect, (a) neither the Partnership, its Subsidiaries nor any of their respective ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or full, partial or mass withdrawal from, any “employee benefit plan” or Multiemployer Plan, or (ii) Sections 412, 4971 or 4975 of the Code; (b) neither the Partnership nor any of its Subsidiaries has any liability with respect to, or obligation to provide, post-employment or post-retirement benefits to any current or former employees or service providers; (c) neither the Partnership nor any of its Subsidiaries nor any organization to which the Partnership or any of its Subsidiaries is a successor or parent corporation, within the meaning of Section 4069(b) of ERISA, has engaged in any transaction described in Sections 4069 or 4212(c) of ERISA; and (d) there is no Action by or before any court or governmental or other regulatory or administrative agency, authority or body or any arbitrator involving any Plan or Multiemployer Plan now pending, or to the knowledge of the Partnership, threatened in writing. The Partnership, its Subsidiaries and their assets are not, and do not expect to be, subject to any Lien pursuant to Section 430(k) of the Code or Sections 303(k) or 4068 of ERISA. To the knowledge of the Partnership, with respect to each Multiemployer Plan: (i) no such Multiemployer Plan has been, or has given notice to the Partnership or any of its Subsidiaries that it will be, terminated or insolvent under ERISA so as to result, directly or indirectly, in any liability of the Partnership, any of its Subsidiaries or any of its ERISA Affiliates under Title IV of ERISA; and (ii) no proceeding has been initiated by any Person (including the Pension Benefit Guaranty Corporation) to terminate any Multiemployer Plan. Neither the Partnership nor any of its Subsidiaries has any current or contingent liability or obligation under ERISA or the Code on account of at any time being considered an ERISA Affiliate with any other Person. Except as would not be reasonably likely, individually or in the aggregate, to have a Partnership Material Adverse Effect, each “employee benefit plan” established or maintained by the Partnership, its Subsidiaries or any of their respective ERISA Affiliates that is intended to be qualified under Section 401 of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would be reasonably likely to cause the loss of such qualification.
SECTION 3.37 Solvency. The Partnership and its Subsidiaries taken as a whole are, and immediately after the Closing Date after giving effect to the transactions contemplated hereby and in the Tronox SPA will be, Solvent. As used herein, the term “Solvent” means, with respect to any Person on a particular date, that on such date (i) the fair market value of the assets of such Person is greater than the total amount of liabilities (including contingent liabilities) of such Person, (ii) the present fair salable value of the assets of such Person is greater than the amount that will be required to pay the probable liabilities of such Person on its debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and pay its debts and other liabilities, including contingent obligations, as they mature and (iv) such Person does not have unreasonably small capital.
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER
Each Purchaser, severally and not jointly, represents and warrants to the Partnership with respect to itself (and not with respect to any other Purchaser) as follows as of the date of this Agreement and as of the Closing Date:
SECTION 4.01 Valid Existence. Such Purchaser (a) is duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and (b) has the requisite power, 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, individually or in the aggregate, to have a Purchaser Material Adverse Effect.
SECTION 4.02 No Consents; Violations, Etc. The execution, delivery and performance of the Transaction Agreements to which such Purchaser is a party by such Purchaser and the consummation of the transactions contemplated thereby will not (a) require any consent, approval or notice under, or constitute a violation or breach of, the Organizational Documents of such Purchaser (b) constitute a violation or breach of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default or give rise to any right of termination, cancellation or acceleration) under, any note, bond, mortgage, lease, loan or credit agreement or other material instrument, obligation or agreement to which such Purchaser is a party or by which such Purchaser or any of its Properties may be bound, (c) violate any provision of any Law or any order, judgment or decree of any court or Governmental Authority having jurisdiction over such Purchaser or its Properties, except in the cases of clauses (b) and (c) where such violation, breach or default, would not reasonably be expected, individually or in the aggregate, to have a Purchaser Material Adverse Effect.
SECTION 4.03 Investment. The Purchased Units are being acquired for such Purchaser’s own account, or the accounts of clients for whom such Purchaser exercises discretionary investment authority, not as a nominee or agent, and with no present intention of distributing the Purchased Units or any part thereof, and 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 to sell or otherwise dispose of all or any part of the Purchased Units, PIK Units or Conversion Units under a registration statement under the Securities Act and applicable state securities Laws or under an exemption from such registration available thereunder (including, if available, Rule 144 promulgated under the Securities Act).
SECTION 4.04 Nature of Purchaser. Such Purchaser represents and warrants to, and covenants and agrees with, the Partnership that, (a) it is an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, (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 Purchased Units, PIK Units and Conversion 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 and (c) it is not acquiring the Purchased Units with a view to, or for offer or sale in connection with, any distribution thereof that could result in such Purchaser being an “underwriter” within the meaning of section 2(11) of the Securities Act or result in any violation of the registration requirements of the Securities Act.
SECTION 4.05 Receipt of Information. Such Purchaser acknowledges that it (a) has access to the SEC Documents and the Tronox SPA and related schedules thereto, (b) has been provided a reasonable opportunity to ask questions of and receive answers from Representatives of the Partnership regarding such matters and (c) has sought such financial, accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the acquisition of the Purchased Units. Neither such inquiries nor any other due diligence investigations conducted at any time by such Purchasers shall modify, amend or affect such Purchasers’ right (i) to rely on the Partnership’s representations and warranties contained in Article III above or (ii) to indemnification or any other remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in any Transaction Agreement.
SECTION 4.06 Restricted Securities. Such Purchaser understands that the Purchased 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 SEC promulgated under the Securities Act.
SECTION 4.07 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 Purchased Units or the consummation of the transactions contemplated by this Agreement or the Tronox SPA, except for fees or commissions for which the Partnership and its Subsidiaries would not be liable.
SECTION 4.08 Legend. It is understood that the certificates evidencing the Purchased Units will bear the following legend:
“These securities have not been registered under the Securities Act of 1933, as amended from time to time (the “Securities Act”), or the securities laws of any state or other jurisdiction. These securities may not be sold, offered for sale, pledged, hypothecated or otherwise transferred 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 reasonably satisfactory to it that such transaction does not require registration under the Securities Act. This security is subject to certain restrictions on transfer set forth in the Fifth Amended and Restated Agreement of Limited Partnership of the Partnership, Dated as of December 28, 2010, as amended or restated from time to time, a copy of which may be obtained from the Partnership at its principal executive offices.”
SECTION 4.09 Reliance on Exemptions. Each Purchaser understands that the Purchased Units are being offered and sold to such Purchaser in reliance upon specific exemptions from the registration requirements of United States federal and state securities Laws and that the Partnership is relying upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Purchased Units.
SECTION 4.10 Authority. Such Purchaser has all necessary power and authority to execute, deliver and perform its obligations under the Transaction Agreements to which such Purchaser is a party and to consummate the transactions contemplated thereby; the execution, delivery and performance by such Purchaser of the Transaction Agreements and the consummation of the transactions contemplated thereby, have been duly authorized by all necessary action on its part; and, assuming the due authorization, execution and delivery by the other parties thereto, the Transaction Agreements to which it is a party constitute the legal, valid and binding obligation of such Purchaser, enforceable in accordance with its 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 5.01 Conduct of Business. During the period commencing on the date of this Agreement and ending on the Closing Date, (a) the Partnership and each of its Subsidiaries will use commercially reasonable efforts to (i) conduct its business in the ordinary course of business and (ii) preserve intact its existence and business organization, Permits, goodwill and present business relationships with all material customers, suppliers, licensors, distributors and others having significant business relationships with the Partnership and/or any of its Subsidiaries, in the case of clause (ii) above, in all material respects, and, in the case of clause (i) and clause (ii) above, excluding any transactions contemplated hereby or the Tronox SPA, and (b) the Partnership shall not, without the prior written consent of each of the Purchasers, take any action under Sections 5.12(b)(ii) and 5.12(b)(iii) of the Amended Partnership Agreement that would have required the consent or approval of the holders of Class A Convertible Preferred Units under the Amended Partnership Agreement had the Partnership Agreement Amendment become effective (and the Purchased Units issued to the Purchasers) as of the date of this Agreement.
SECTION 5.02 Taking of Necessary Action.
(a) 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 Purchasers or the Partnership, as the case may be, advisable for the consummation of the transactions contemplated by the Transaction Agreements.
(b) The Partnership (i) 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 the Tronox SPA; (ii) shall not amend, modify or waive any provision of the Tronox SPA, waive any condition to the closing thereunder or mutually agree to terminate the Tronox SPA without the prior written approval of the Purchasers who are obligated to purchase a majority of the Class A Convertible Preferred Units under this Agreement; provided, however, that such prior written approval shall not be required in connection with any such amendment, modification or waiver (other than an amendment, modification or waiver of any condition to closing thereunder, and not including any termination thereof) that would not adversely affect the Purchasers or the Partnership (either before or after giving effect to the transactions contemplated by the Tronox SPA) in any respect, provided that the Partnership provides the Purchasers at least five Business Days’ advance written notice thereof; and (iii) shall promptly notify the Purchasers of any breach that would cause a condition under the Tronox SPA to not be satisfied.
SECTION 5.03 Public Announcements. The initial press release with respect to the transactions contemplated hereby shall be in a form to be reasonably agreed upon by the Partnership and the Purchasers. Thereafter, except as required by applicable Law, neither the Partnership nor the Purchasers shall make any press release or other public announcement with respect to the transactions contemplated hereby without the prior written consent of each other Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in this Section 5.03, the Partnership and its Subsidiaries agree that (i) the Purchasers may (A) publicize their ownership in the Partnership, as well as the identity of the Partnership, the size of the investment and its pricing terms with respect to the Class A Convertible Preferred Units on its internet site or in marketing materials, press releases, published “tombstone” announcements or any other print or electronic medium and (B) display the Partnership’s corporate logo in conjunction with any such reference, (ii) (A) any Party may make any public disclosure it believes in good faith is required by applicable Law or any listing or trading agreement or other securities exchange requirement concerning its publicly traded securities and (B) after the Closing, any Party may make disclosures of then-current public information regarding this Agreement and the transactions effected hereunder, and (iii) the Partnership and any of its Affiliates may, without the prior written consent of any other Party or its Affiliates, disclose the terms and provisions of this Agreement and any information regarding this Agreement and the transactions contemplated hereby in or in connection with (A) offering materials for a securities offering or lending transaction, and/or (B) one or more customary investor presentations or related conference calls by the Partnership and its Affiliates with investors or analysts. In the event a Party has approved any disclosures as required hereunder, the other Party or its Affiliates shall be entitled to make disclosures substantially similar (as to form and content) to those prior disclosures that the non-disclosing Party has approved.
SECTION 5.04 Disclosure; Public Filings. The Partnership may, without prior written consent or notice, file the Transaction Agreements as exhibits to Exchange Act reports, if required by applicable Law and include summaries thereof in such reports.
SECTION 5.05 NYSE Listing Application. The Partnership shall, prior to the Closing Date, file a supplemental listing application with the NYSE to list the Conversion Units and will otherwise use its reasonable commercial efforts to list the Conversion Units on the NYSE and maintain such listing.
SECTION 5.06 Use of Proceeds. The Partnership will use the net proceeds from the sale of Class A Convertible Preferred Units under this Agreement together with the proceeds of borrowings from third parties, cash on hand, and/or one or more financing transactions of the type contemplated by clause (iv) or clause (vi)(A) of Section 3.16 to fund the purchase price payable by the Partnership under the Tronox SPA and related expenses, to pay to the Purchasers or their Affiliates the Transaction Fee, and any excess will be used for other general partnership purposes, including the repayment of indebtedness. The Partnership will not directly or indirectly use the proceeds of the sale of the Purchased Units, or lend, contribute or otherwise make available such proceeds, in violation of any applicable Anti-Corruption Laws.
SECTION 5.07 Compliance Policies and Procedures. The Partnership and its Subsidiaries shall adopt, revise, and maintain from time to time (as the case may be) policies and procedures adequate to provide reasonable assurances that violations of the Anti-Corruption Laws, Sanctions, and Money Laundering Laws will be prevented, detected, and deterred.
SECTION 5.08 Transaction Structure. The Partnership and its Subsidiaries shall, promptly after the closing of the acquisition of Tronox, cause Tronox Alkali Corporation and Tronox Alkali Wyoming Corporation, to convert into limited liability companies and to be treated as disregarded entities for U.S. federal and any applicable state and local income tax purposes.
CLOSING CONDITIONS
SECTION 6.01 Conditions to Closing.
(a) Mutual Conditions. The respective obligation of each Party to consummate the purchase and issuance and sale of Purchased Units at Closing 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 that 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;
(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; and
(iii) the closing of the transactions contemplated by the Tronox SPA shall occur concurrently with the Closing in accordance with the terms of the Tronox SPA, without amendment, modification or waiver of any provision thereof, other than an amendment, modification or waiver effected in compliance with Section 5.02(b)(ii).
(b) Each Purchaser’s Conditions. The respective obligation of each Purchaser to consummate the purchase of its Purchased Units on the Closing Date in accordance with Schedule A hereto shall be subject to the satisfaction on or prior to the Closing Date, as applicable, of each of the following conditions (any or all of which may be waived by a particular Purchaser only on behalf of itself in writing, in whole or in part):
(i) the Partnership shall have performed and complied in all material respects 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 of the Partnership 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);
(iv) the NYSE shall have authorized, upon official notice of issuance, the listing of the Conversion Units;
(v) no notice of delisting from the NYSE shall have been received by the Partnership with respect to the Common Units;
(vi) there shall not have occurred and be continuing a Partnership Material Adverse Effect;
(vii) the Partnership shall not have amended, waived or modified any provision of the Tronox SPA since the execution thereof (including the amendment, waiver or modification of any conditions to closing contained therein), other than an amendment, modification or waiver effected in compliance with Section 5.02(b)(ii);
(viii) confirmation that at the Closing each other Purchaser shall pay, or cause to be paid, such Purchaser’s Purchase Price in accordance with the terms hereof; and
(ix) the Partnership shall have delivered, or caused to be delivered, to the Purchasers 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 Purchased Units to each of the Purchasers on the Closing Date shall be subject to the satisfaction on or prior to the Closing Date, as applicable, 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 in all material respects 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 such Purchaser 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); and
(iii) each Purchaser shall have delivered, or caused to be delivered, to the Partnership such Purchaser’s closing deliveries set forth in Section 6.03.
SECTION 6.02 Partnership Deliveries. At Closing, subject to the terms and conditions of this Agreement, the Partnership will deliver, or cause to be delivered, to each Purchaser:
(a) evidence of issuance of a certificate evidencing the Purchased Units or the Purchased Units credited to book-entry accounts maintained by the transfer agent, as the case may be, bearing the legend or restrictive notation set forth in Section 4.08, and meeting the requirements of the Amended Partnership Agreement, free and clear of any Liens, other than transfer restrictions under the Amended Partnership Agreement and applicable federal and state securities laws;
(b) a certificate of the Secretary of State of the State of Delaware, dated as of a recent date, to the effect that each of the General Partner and the Partnership is in good standing;
(c) an officer’s certificate, substantially in the form attached to this Agreement as Exhibit A;
(d) the Partnership Agreement Amendment, duly executed by the General Partner;
(e) the Registration Rights Agreement, duly executed by the General Partner on behalf of the Partnership;
(f) the Board Observer Agreement, duly executed by the General Partner, for itself and on behalf of the Partnership;
(g) a certificate of the Secretary or Assistant Secretary of the General Partner, on behalf of the Partnership, dated the Closing Date, certifying as to (i) the certificate of formation of the General Partner, the GP LLC Agreement, the certificate of limited partnership of the Partnership, and the Partnership Agreement, (ii) board resolutions authorizing the execution and delivery of the Transaction Agreements and the consummation of the transactions contemplated thereby and (iii) the incumbent officers authorized to execute the Transaction Agreements, setting forth the name and title and bearing the signatures of such officers;
(h) a supplemental listing application filed by the Partnership with the NYSE;
(i) a cross receipt, dated the Closing Date, executed by the Partnership confirming that the Partnership has received such Purchaser’s Purchase Price;
(j) such other documents relating to the transactions contemplated by this Agreement as the Purchasers or their counsel may reasonably request; and
(k) if applicable, payment of the Transaction Fee in the manner contemplated in Section 2.02(b).
SECTION 6.03 Purchaser Deliveries. At Closing, subject to the terms and conditions of this Agreement, each Purchaser will deliver, or cause to be delivered, to the Partnership:
(a) payment to the Partnership, by wire transfer(s) of immediately available funds to the Partnership Bank Account, of such Purchaser’s Purchase Price, which amount shall be reduced by (i) an amount equal to the amount of such Purchaser’s Reimbursable Expenses as provided in the Expense Notice, subject to the limitations set forth in the definition of “Reimbursable Expenses”, and (ii) if applicable pursuant to Section 2.02(b), such Purchaser’s proportionate amount of the Transaction Fee;
(b) if applicable, payment to an Affiliate of such Purchaser to be designated of such Purchaser’s proportionate amount of the Transaction Fee, payable by wire transfer(s) of immediately available funds in U.S. dollars to an account designated in advance of the Closing Date by such Affiliate of such Purchaser, a portion of which may be structured as a placement fee to a broker-dealer affiliate;
(c) an officer’s certificate, substantially in the form attached to this Agreement as Exhibit B;
(d) the Registration Rights Agreement, duly executed by such Purchaser;
(e) the Board Observer Agreement, duly executed by the such Purchaser;
(f) a cross receipt, dated the Closing Date, executed by such Purchaser confirming that such Purchaser has received the Purchased Units being purchased by such Purchaser on such Closing Date pursuant hereto; and
(g) a completed Internal Revenue Service Form W-9.
ARTICLE VII
INDEMNIFICATION, COSTS AND EXPENSES
SECTION 7.01 Indemnification by the Partnership. Upon the terms and subject to the conditions of this Article VII, the Partnership will indemnify, defend and hold harmless each Purchaser and its Representatives (collectively, “Purchaser Related Parties”) from and 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 or 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 whether or not involving a third party claim, as a result of, arising out of, or in any way related to the breach of any of the representations, warranties, covenants or agreements of the Partnership contained herein or in any certificate or instrument delivered by or on behalf of the Partnership hereunder); provided, however, that such claim for indemnification relating to a breach of any representation or warranty is made prior to the expiration of such representation or warranty to the extent applicable (it being understood that for purposes of determining when an indemnification claim has been made, the date upon which a Purchaser Related Party has delivered notice to the Partnership shall constitute the date upon which such claim has been made). Notwithstanding anything to the contrary herein, no Purchaser Related Party shall be entitled to recover special, indirect, exemplary, incidental, speculative or punitive damages or lost profits, it being understood that (a) this sentence shall not limit recovery for damages that (i) are the result of fraud or (ii) constitute a diminution in value of the Purchased Units, PIK Units and Conversion Units; provided, however, that with respect to each Purchaser Related Party, the damages recoverable by such Purchaser Related Party pursuant to this clause (ii) shall not to exceed the Purchase Price applicable to such Purchaser; and (b) Purchaser Related Parties shall further be able to recover any special, consequential or punitive damages that are components of damages paid to third parties by such Purchaser Related Parties that are indemnifiable hereunder.
SECTION 7.02 Indemnification by Purchasers. Upon the terms and subject to the conditions of this Article VII, each Purchaser will severally, and not jointly, indemnify, defend and hold harmless the Partnership, the General Partner and their respective Representatives (collectively, “Partnership Related Parties”) from and 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 or 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, whether or not involving a third party claim, as a result of, arising out of, or in any way related to the breach of any of the representations, warranties, covenants or agreements of such Purchaser contained herein or in any certificate or instrument delivered by such Purchaser hereunder; provided, however, that such claim for indemnification relating to a breach of any representation or warranty is made prior to the expiration of such representation or warranty to the extent applicable (it being understood that for purposes of determining when an indemnification claim has been made, the date upon which a Partnership Related Party has delivered notice (stating in reasonable detail the basis of the claim for indemnification) to the Purchaser shall constitute the date upon which such claim has been made). Notwithstanding anything to the contrary herein, no Partnership Related Party shall be entitled to recover special, indirect, exemplary, incidental, speculative or punitive damages or lost profits, it being understood that (a) this sentence shall not limit recovery for damages that are the result of fraud and (b) the Partnership Related Parties shall further be able to recover any special, consequential or punitive damages that are components of damages paid to third parties by such Partnership Related Parties that are indemnifiable hereunder. Notwithstanding anything to the contrary contained in this Agreement, no current, former or future Affiliate, general or limited partner, equity-holder, director, officer, manager, employee, agent, successor or assign of any Purchaser or of any Affiliate thereof (collectively, “ Non-Recourse Parties”), other than any Purchaser, shall have any liability or obligation hereunder or in respect of the transactions contemplated hereby (at law or in equity, whether in tort, contract or otherwise), and from and after Closing, any claim as a result of, arising out of, or in any way related to any breach of any representation, warranty, covenant or agreement by a Purchaser shall be made solely against the Purchaser, and no Non-Recourse Party other than Purchaser, shall have any liability or obligation hereunder or in respect thereof (at law or in equity, whether in tort, contract or otherwise), and the Partnership on behalf of itself and the Partnership Related Parties and its and their respective Affiliates hereby irrevocably waives any claims or rights (at law or in equity, whether in tort, contract or otherwise) it or any Partnership Related Party, or its and their respective Affiliates, may have with respect to this Agreement or the transactions contemplated hereby against any Non-Recourse Party other than any Purchaser, whether before or after Closing.
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, suit 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, suit 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 reasonably 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, within ten (10) Business Days of when the Indemnified Party provides written notice of the claim for indemnification, failed to (1) assume the defense or employ counsel reasonably acceptable to the Indemnified Party and (2) notify the Indemnified Party of such assumption or (B) 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 interest 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 prior 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.
SECTION 7.04 Tax Treatment. All indemnification payments under this Article VII shall be adjustments to the Per Unit Price except as otherwise required by applicable Law.
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 a Party has an obligation under the Transaction Agreements, 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 Transaction Agreements, such action shall be in such Purchaser’s sole discretion, unless otherwise specified therein. The meaning assigned to each term
defined herein shall be equally applicable to both the singular and the plural forms of such term and vice versa, and words denoting any gender shall include all genders as the context requires. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning. A reference to any Party to this Agreement or a Person party to any other agreement or document shall include such Party’s successors and permitted assigns If any provision in the Transaction Agreements is held to be illegal, invalid, not binding, or unenforceable, such provision shall be fully severable and the Transaction Agreements shall be construed and enforced as if such illegal, invalid, not binding or unenforceable provision had never comprised a part of the Transaction Agreements, and the remaining provisions shall remain in full force and effect. The Transaction Agreements 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 3.01, 3.02, 3.03, 3.04, 3.07, 3.09, 3.10, 3.11, 3.20, 3.27, 3.28, 3.29, 3.30, 3.35, 4.01, 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, the representations and warranties set forth in Section 3.23 shall survive until 60 days after the applicable statute of limitations (taking into account any extensions thereof), and the other representations and warranties set forth in this Agreement shall survive for a period of eighteen (18) 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 Transaction Agreement shall survive the Closing indefinitely until performed and remain operative and in full force and effect regardless of acceptance of any of the Purchased Units and payment therefor and repayment, conversion, exercise, redemption or repurchase thereof. All indemnification obligations of the Partnership and the Purchasers pursuant to this Agreement 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; Amendment. Except as otherwise provided herein, no amendment, waiver, consent, modification or termination of any provision of this Agreement 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 hereof, any waiver of any provision hereof and any consent to any departure by the Partnership from the terms of any provision hereof 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. The Partnership may not assign all or any portion of its rights and obligations under this Agreement without the consent of Purchasers possessing the right to acquire not less than a majority of the Purchased Units.
(b) Assignment of Rights. All or any portion of the rights and obligations of any Purchaser under this Agreement may be transferred by such Purchaser without the consent of any other Party, subject to the restrictions set forth in, and compliance with the requirements of, Section 2.01(b). Any transfer or attempted transfer of the rights and obligations of a Purchaser under this Agreement, other than in accordance with Section 2.01(b), shall be null and void and of no force and effect.
SECTION 8.05 Communications. All notices and demands provided for hereunder shall be in writing and shall be given by registered or certified mail, return receipt requested, telecopy, air courier guaranteeing overnight delivery, electronic mail or personal delivery to the following addresses:
(a) If to any Purchaser:
To such Purchaser’s address listed on Schedule 8.05 hereof or such other address as such Purchaser shall have specified by written notice to the Partnership.
With a copy to (which shall not constitute notice):
Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: G. Xxxxxxx X’Xxxxx;
Xxxxxxxx Xxxxxxx Xxxxxx
With a copy to (which shall not constitute notice):
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP