Exhibit 10.1
SECURITIES PURCHASE
AGREEMENT
Dated June 25, 2009
Dynamic Credit Partners,
LLC
1500 Broadway
New York, NY 10036
Ladies and Gentlemen:
Each of the sellers listed in
Exhibit A hereto (each, a “Seller,” and
collectively, the “Sellers”) owns the securities listed
opposite their respective name in Exhibit A hereto (the
“Securities”). The Sellers propose to sell to Dynamic
Credit Partners LLC (the “Purchaser”) all of the
Securities free and clear of any liens, and the Purchaser proposes
to buy the Securities, pursuant to the terms and conditions set
forth in this Securities Purchase Agreement (this
“Agreement”). The Securities have not been registered
under the Securities Act of 1933, as amended (the “1933
Act”). No party has any obligation to register any Securities
under the 1933 Act and will not do so.
1. Representations and Warranties
of the Sellers . Each Seller represents and warrants to the
Purchaser that, as of the date hereof and as of the Closing
Date:
(a) The Seller has been duly formed
and is validly existing under the laws of its jurisdiction of
organization and is in good standing under the laws of such
jurisdiction, with authority to enter into and perform its
obligations under this Agreement.
(b) There are no legal or
governmental proceedings pending or, to its knowledge, threatened
to which it is a party that would have a material adverse effect on
its power or ability to perform its obligations under this
Agreement.
(c) This Agreement has been duly
authorized, executed and delivered by it, and, assuming the due
authorization, execution and delivery hereof by the Purchaser,
constitutes a legal, valid and binding instrument enforceable
against it in accordance with its terms, subject to
(i) applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors’ rights
generally and (ii) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law).
(d) The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby does not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Seller
is a party, by which it is bound or to which any of the
Seller’s properties or assets is subject, which breach or
violation would have a material adverse effect on its power or
ability to perform its obligations under this Agreement; provided,
however, that the Purchaser complies with any applicable contract,
document or instrument controlling the transfer of the respective
Securities; nor will such actions
result in any violation of the
provisions of the Seller’s certificate of incorporation or
by-laws or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Seller or any of Seller’s properties or assets, which breach
or violation would have a material adverse effect on the
Seller’s power or ability to perform its obligations under
this Agreement.
(e) Immediately prior to the sale of
the Securities to the Purchaser pursuant to this Agreement, the
Seller (i) is the sole owner of the Securities set forth
opposite such Seller’s name on Exhibit A and such
Securities are owned by such Seller, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, “Liens”) and
(ii) has not made an assignment to any person of any of its
right or title in the Securities that will remain in effect on the
Closing Date. Upon delivery to the Purchaser or its agent of the
Securities, the Purchaser will have good title to the Securities,
free and clear of any Liens.
2. Representations and Warranties
of the Purchaser . The Purchaser represents and warrants to the
Sellers that, as of the date hereof and as of the Closing
Date:
(a) The Purchaser has been duly
organized and validly exists in good standing under the laws of
Delaware with the authority to enter into and perform its
obligations under this Agreement. The Purchaser is (i) an
“accredited investor” as that term is defined in Rule
501(a) of Regulation D promulgated under the 1933 Act, (ii) a
“qualified institutional buyer” as defined in Rule 144A
promulgated under the 1933 Act and (iii) a “qualified
purchaser” as defined in Sections 3(c)(7) and 2(a)(51) and
the related rules of the Investment Company Act of 1940. The
Purchaser makes the transferee representations set forth in
Section 2.4(c) of each of the indentures related to the
Securities. The Purchaser is not (and for so long as it holds any
preferred shares included in the Securities, will not be) and is
not acting on behalf of (and for so long as it holds such preferred
shares, will not be acting on behalf of) a Benefit Plan Investor or
a Controlling Person (as such terms are defined in the preferred
share paying agency agreements relating to the Securities (the
“PSPA Agreements”)).
(b) There are no legal or
governmental proceedings pending or, to the knowledge of the
Purchaser, threatened to which the Purchaser is a party that would
have a material adverse effect on its power or ability to perform
its obligations under this Agreement.
(c) This Agreement has been duly
authorized, executed and delivered by the Purchaser, and, assuming
the due authorization, execution and delivery hereof by the
Sellers, constitutes a legal, valid and binding instrument
enforceable against the Purchaser in accordance with its terms,
subject to (i) applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting
creditors’ rights generally and (ii) general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(d) The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby does not conflict with or result
in
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a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Purchaser is a party, by which
the Purchaser is bound or to which any of the properties or assets
of the Purchaser is subject, which breach or violation would have a
material adverse effect on its power or ability to perform its
obligations under this Agreement; nor will such actions result in
any violation of the provisions of the organizational documents of
the Purchaser or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Purchaser or any of its properties or assets, which breach or
violation would have a material adverse effect its power or ability
to perform its obligations under this Agreement.
3. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Sellers agrees
to sell to the Purchaser, and the Purchaser agrees to purchase from
the Sellers, the Securities, upon the Purchaser paying Sellers the
purchase price of $10,000 (the “Purchase
Price”).
4. Delivery and Payment
.
(a) Delivery of and payment for the
Securities shall be made at the offices of Purchaser on
June 25, 2009, which date and time may be changed by agreement
between the Sellers and the Purchaser (such date and time of
delivery and payment for the Securities being herein called the
“Closing Date”).
(b) The Securities shall have the
denominations specified on Exhibit A and shall (i) in
the case of Securities held through DTC, be delivered through DTC
to an account designated by the Purchaser and (ii) in the case
of Securities held in physical form, be physically delivered to the
Purchaser or its designated representative, accompanied by any
appropriate executed Transfer Documents. The Securities identified
on Exhibit A with CUSIP number 873314207 in the amounts of
$1,410,000 and $500,000 are held in physical form and shall be
physically delivered to the Purchaser or its designated
representative accompanied by any appropriate executed Transfer
Documents as promptly as is reasonably practicable on or after the
Closing Date.
(c) Payment of the Purchase Price
shall be by wire transfer of immediately available funds to the
Sellers, in accordance with the Sellers’ written wiring
instructions.
(d) The parties agree that the
transfer of the Securities from the Sellers to the Purchaser shall
be effective as of the Closing Date.
5. Resale of Securities
.
(a) The Purchaser understands that
the Securities have not been registered under the 1933 Act, and
agrees that it will not sell or otherwise transfer the Securities
or any interest therein unless such sale or transfer is
(i) made pursuant to an effective registration statement under
the 1933 Act and any applicable state securities laws or is exempt
from the registration requirements under the 1933 Act and such
state securities laws and (ii) in compliance with any
applicable contract, document or instrument controlling the
transfer of the respective Securities.
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(b) The Purchaser understands that
the Securities are subject to various limitations on
transferability and that the Purchaser may have to hold the
Securities for an indefinite period.
(c) The Purchaser understands that
there are no contracts, agreements or understandings granting
Purchaser the right to require the Sellers, the issuer of the
Securities or any other person to file a registration statement
under the 1933 Act with respect to the Securities.
6. Conditions to the Obligation
of the Purchaser . The obligation of the Purchaser hereunder to
purchase the Securities shall be subject to (a) the accuracy
of the representations and warranties on the part of the Sellers
contained herein, (b) the performance by the Sellers of their
respective obligations hereunder, (c) on
