SECURITIES PURCHASE AGREEMENT BY AND BETWEEN MAYA MARITIME, LLC and EXCELERATE ENERGY LIMTED PARTNERSHIP

Exhibit 2.1

BY AND BETWEEN

MAYA MARITIME, LLC

and

EXCELERATE ENERGY LIMTED PARTNERSHIP

[●], 2022

 

TABLE OF CONTENTS

 

This Securities Purchase Agreement (this “Agreement”), dated January ___, 2022 (the “Effective Date”), is made by and between Maya Maritime, LLC, a ▇▇▇▇▇▇▇▇ Islands limited liability company (“Seller”), and Excelerate Energy Limited Partnership, a Delaware limited partnership (“Buyer”).  Buyer and Seller are also referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS:

WHEREAS, as of the date hereof and as of immediately prior to the consummation of the transactions contemplated by this Agreement (the “Transactions”), Seller owns 100% of the issued and outstanding membership interests, including all voting and management rights (collectively, the “Interests”), in each of (a) Excelsior, LLC, a ▇▇▇▇▇▇▇▇ Islands limited liability company (“Excelsior”), and (b) FSRU Vessel (Excellence), LLC (f/k/a Excellence, LLC), a ▇▇▇▇▇▇▇▇ Islands limited liability company (“Excellence” and collectively with Excelsior, the “Acquired Companies” and each, an “Acquired Company”);

WHEREAS, Buyer is the disponent owner of the Vessels and responsible for the operation of the Vessels;

WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Interests of each Acquired Company on the terms and subject to the conditions set forth herein; and

WHEREAS, after completion of the transactions contemplated in this Agreement, Buyer shall own 100% of the Interests in each Acquired Company and Seller shall have no further equity interest in either Acquired Company.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

ARTICLE I

DEFINITIONS AND CONSTRUCTION

Section 1.01          Definitions.

“Acquired Company” and “Acquired Companies” have the meanings set forth in the preface.

“Agreement” has the meaning set forth in the preface.

“Assignment and Assumption Agreement” has the meaning set forth in Section 2.04(a)(i).

“Business Day” means a day of the year on which banks are not required or authorized to close in Houston, Texas.

“Buyer” has the meaning set forth in the preface.

“Cash” means, as of the close of business on the Closing Date (but before taking into account the consummation of the transactions contemplated hereby), all cash, all cash equivalents, restricted cash (including all cash posted to support letters of credit, performance bonds or other similar obligations), marketable securities and deposits with third parties of the Acquired Companies. For the avoidance of doubt, Cash will be calculated net of issued but uncleared checks and drafts and will include checks, other wire transfers and drafts deposited or available for deposit for the account of any Acquired Company.

 

“Cash Consideration” has the meaning set forth in Section 2.02(a)(i).

“Class A Issuance Price” means the initial public offering price of the Class A Shares issued in EE Inc.’s initial public offering.

“Class A Shares” means the Class A common stock, par value $0.001 per share of EE, Inc.

“Closing” has the meaning set forth in Section 2.03.

“Closing Date” has the meaning set forth in Section 2.03.

“EE, Inc.” means Excelerate Energy, Inc.

“EE Inc. IPO” means EE Inc.’s initial public offering of Class A common stock, which offering is expected to close on or about the Closing Date.

“Effective Date” has the meaning set forth in the preface.

“Excellence” has the meaning set forth in the Recitals.

“Excellence Charter” has the meaning set forth in Section 4.04.

“Excellence Indemnity” has the meaning set forth in Section 2.04(a)(iii).

“Excelsior” has the meaning set forth in the Recitals.

“Excelsior Charter” has the meaning set forth in Section 4.04.

“Final Hire Payments” has the meaning set forth in Section 4.04.

“GAAP” means prepared in accordance with United States generally accepted accounting principles.

“Governmental Entity” means any national, federal, state, provincial, regional, territorial or local government or political subdivision thereof; any administrative, regulatory, executive, legislative or judicial body or authority; any international body, authority, organization or association; any ministry, department, court, commission, committee, bureau, board, agency, or instrumentality or similar entity of any of the foregoing, and any arbitrator or arbitral panel.

“Indebtedness” means the principal amount, plus any related accrued and unpaid interest, fees and prepayment premiums or penalties, of (a) all indebtedness for borrowed money of the Acquired Companies owed under a credit facility or evidenced by any note, debenture or other debt security and (b) all obligations of the Acquired Companies owed under any capital leases.

“Interests” has the meaning set forth in the Recitals.

“Kaiser” has the meaning set forth in Section 2.04(a)(iii).

“Knowledge” means actual knowledge after due investigation.

“Law” or “Laws” means any applicable statute, law, rule, regulation, ordinance, order, code, judgment, ruling, writ, plan, injunction, permit, charge, decree, treaty, notice requirement, court decision, agency guideline, criteria, standard or direction, principle of law or other official act of or by any Governmental Entity as each of the foregoing are issued or enacted and in effect on or prior to the Closing Date.

 

“Lien” means any mortgage, pledge, lien, charge, security interest, or encumbrances of any nature.

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the Acquired Companies, or (b) the ability of Seller to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Acquired Companies operate; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on the Acquired Companies compared to other participants in the industries in which the Acquired Companies conduct their businesses.

“Operating Expenses” means the expenses of operating the Acquired Companies, including expenses related to operation of the Vessels, that are payable by each Acquired Company.

“Organizational Documents” means, with respect to Seller, Buyer or the Acquired Companies, the certificate of formation, limited liability company agreement, or similar organizational document or agreement, as applicable, of such entity.

“Party” or “Parties” has the meaning set forth in the preface.

“Permitted Liens” means (i) restrictions on the right to sell or otherwise dispose of any interest imposed by applicable securities laws and (ii) Liens for current Taxes and assessments not yet due and Liens for Taxes being contested in good faith by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity or a Governmental Entity.

“Purchase Price” has the meaning set forth in Section 2.02.

“Release” has the meaning set forth in Section 2.04(a)(iv).

“Securities Act” means the United States Securities Act of 1933, as amended.

“Seller” has the meaning set forth in the preface.

“Stock Consideration” has the meaning set forth in Section 2.02(a)(ii).

“Tax” or “Taxes” means any federal, state, local, or non-United States income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, tonnage, sales, use, transfer, registration, value added, alternative or add-on minimum, or estimated tax, including any interest, penalty, or addition thereto, whether disputed or not.

 

“Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“TRA Consideration” has the meaning set forth in Section 2.02(a)(iii).

“Transaction Documents” means this Agreement and all other documents referenced herein.

“Transactions” has the meaning set forth in the Recitals.

“Transfer Taxes” means sales, use, value added, goods and services, documentary, transfer, stamp, stock transfer, real property transfer or gains or similar Taxes imposed by any Governmental Entity as a result of, or payable or collectible or incurred in connection with, the transactions contemplated by this Agreement.

“Unpaid Operating Expense” has the meaning set forth in Section 4.03.

“Vessel” means the FSRU vessels Excellence and Excelsior owned by Excellence and Excelsior, respectively.

Section 1.02          Construction. As used in this Agreement and except where the context clearly requires otherwise, (a) words in the singular include the plural and words in the plural include the singular, (b) words in any gender include all genders, (c) all references to schedules or exhibits refer to schedules or exhibits delivered herewith or attached hereto (each of which is deemed to be a part of this Agreement), (d) all references to Sections or articles refer to Sections or articles of this Agreement, (e) any reference to any statute, agreement or instrument in this Agreement shall be a reference to the same as amended, supplemented or re-enacted from time to time, except with respect to any such reference contained in Article III in which case such reference shall be to the statutes, agreements or instruments as in effect on the date or dates specified in the first sentence of such Article III, (f) the word “or” is not exclusive, and the word “including” (in its various forms) means “including without limitation”, (g) the terms “herein”, “hereunder”, “hereby”, “hereto” and terms of similar import refer to this Agreement in its entirety, and not to any particular article, Section, paragraph or subparagraph, and (h) all amounts shown are in United States dollars unless otherwise indicated.

ARTICLE II

PURCHASE AND SALE OF THE INTERESTS

Section 2.01          Purchase and Sale. On and subject to the terms and conditions of this Agreement, at Closing, Seller shall sell, transfer, assign, convey, and deliver to Buyer, and Buyer shall acquire and accept conveyance from Seller, all of Seller’s right, title, and interest in and to the Interests, free and clear of all Liens, other than Permitted Liens, for the consideration specified below in this ARTICLE II.

Section 2.02          Purchase Price.  As consideration for the sale of the Interests to Buyer, at Closing Buyer shall deliver, cause to be delivered, or be deemed to have delivered to Seller aggregate consideration in the amount of $         (collectively, the “Purchase Price”), paid, or deemed paid, as follows:

 

Section 2.03          Closing.  Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated herein (the “Closing”) shall take place remotely via the electronic exchange of appropriate documentation as promptly as practicable after the satisfaction or, to the extent permissible, waiver of all the conditions set forth in Section 5.01  (other than conditions that by their terms or nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of such conditions at the Closing), or on such other date as is mutually agreeable to the Buyer and Seller. The date on which the Closing actually occurs is referred to herein as the “Closing Date”. The Closing will be deemed to be effective as of 11:59 p.m. Central Time on the Closing Date.

Section 2.04          Deliveries at Closing.

(i)          an Assignment and Assumption of Interests, duly executed by Seller, in such form as may be mutually agreed between the Parties (the “Assignment and Assumption Agreement”) evidencing the assignment by Seller to Buyer of the Interests of the Acquired Companies;

(ii)          a properly completed IRS Form W-9 or appropriate IRS Form W-8, as applicable, duly executed by Seller and any applicable state Tax withholding affidavits reasonably requested by Buyer;

(iii)          an indemnity agreement in such form as may be mutually agreed between the Parties (the “Excellence Indemnity”), duly executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (“▇▇▇▇▇▇”);

 

(iv)          a release and waiver in such form as may be mutually agreed between the Parties (the “Release”), of that certain Replacement Deed of Guarantee of Charterer Guarantor dated December 19, 2016 issued by Kaiser in respect of all payment and performance obligations owed by EELP to Excellence, as successor in interest to Maya Maritime NV as owner of the vessel Excellence;

(v)          duly adopted binding resolutions (which have not been revoked or suspended) of Seller authorizing the entry, execution, delivery and performance, as applicable, of this Agreement, the other Transaction Documents and the Transactions;

(vi)          an opinion of counsel for Seller dated as of the Closing, in such form as may be mutually agreed between the Parties; and

(vii)          such other agreements, documents, certificates, and instruments required to be delivered to Buyer at or before Closing pursuant to this Agreement and such other agreements, documents, certificates and instruments as Buyer may reasonably request to effectuate the Transactions.

(i)          Class A Shares constituting the Stock Consideration;

(ii)          The Cash Consideration, by wire transfer of immediately available funds to the account specified in writing by Seller to Buyer prior to Closing;

(iii)          counterpart copies of the Assignment and Assumption Agreement duly executed by Buyer;

(iv)          the Excellence Indemnity duly executed by Buyer;

(v)          duly executed and legally binding resolutions of Buyer authorizing the entry, execution, delivery and performance, as applicable, of this Agreement, the other Transaction Documents and the Transactions;

(vi)          an opinion of counsel for Buyer dated as of the Closing, in such form as may be mutually agreed between the Parties; and

(vii)          such other agreements, documents, certificates, and instruments required to be delivered to Seller at or before Closing pursuant to this Agreement and such other agreements, documents, certificates and instruments as Seller may reasonably request to effectuate the Transactions.

Section 2.05          Withholding. Buyer shall be entitled to deduct and withhold from any amount otherwise payable with respect to this Agreement such amounts as may be required to be deducted or withheld therefrom or with respect thereto under applicable Law. To the extent that any amounts are so deducted or withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES CONCERNING TRANSACTION

Section 3.01          Seller’s Representations and Warranties. Seller represents and warrants to Buyer that the statements contained in this Section 3.01 are true, correct and complete with respect to such Seller and each Acquired Company as of the Effective Date and as of the Closing Date.

 

 

THE SECURITIES ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.

Section 3.02          Buyer’s Representations and Warranties. Buyer represents and warrants to Seller that the statements contained in this Section 3.02 are true, correct and complete with respect to Buyer as of the Effective Date.

 

ARTICLE IV

COVENANTS

Section 4.01          General. In case at any time after the Effective Date any further action is necessary or desirable to carry out the purposes of this Agreement, each Party will take such further action (including the execution and delivery of such further instruments and documents) as any other Party may reasonably request, all at the sole cost and expense of the requesting Party, provided, however, such request shall not result in an amendment to the terms of this Agreement or other Transaction Documents which is materially adverse to the other Party.

Section 4.02          Litigation Support. If and for so long as any Party is actively contesting or defending any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (a) any transaction contemplated under this Agreement or any other Transaction Document or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving either of the Acquired Companies, the other Party shall cooperate with it and its counsel in the defense or contest, make available its personnel, and provide such testimony and access to his, her, or its books and records as shall be necessary in connection with the defense or contest, all at the sole cost and expense of the contesting or defending Party.

 

Section 4.03          Unpaid Operating Expenses. If, after the Closing Date, Buyer receives an invoice(s) for payment of Operating Expenses that relate to an expense incurred by an Acquired Company or Vessel (or by Buyer on behalf of an Acquired Company or Vessel) for operations prior to February 1, 2022 (each, an “Unpaid Operating Expense”), Buyer shall, at Buyer’s option, submit such unpaid invoices, together with reasonable documentation thereof to Seller for payment thereunder, or for reimbursement of amounts paid by Seller under such invoices, to Buyer or the applicable Acquired Company. Seller shall pay over to Buyer or the applicable invoicing party, in the manner designated by Buyer or pursuant to the applicable invoice, the amount of all such undisputed Unpaid Operating Expenses within 10 days after receipt of an invoice therefor. In the event Seller disputes Seller’s obligation to pay an Unpaid Operating Expense, Seller shall notify Buyer of such dispute and the Parties shall use good faith efforts to resolve any such dispute.

Section 4.04          Hire Payments. The Parties agree that on or about January 1, 2022, Buyer made payments of hire (the “Final Hire Payments”) due under each of (a) the First Amended and Restated LNG Vessel Time Charter Party dated May 5, 2016 by and between Buyer and Excellence (as such charter has been novated and amended, the “Excellence Charter”) and (b) the LNG Vessel Time Charter Party dated December 15, 2003 by and between Buyer and Excelsior (as such charter has been amended and novated, the “Excelsior Charter”). The Parties further agree and acknowledge that such Final Hire Payments constitute the final payments due by Buyer under the Excellence Charter and Excelsior Charter, respectively, and no further payments are due or owing, or will become due or owning, notwithstanding the Closing Date may be on or after February 1, 2022.

Section 4.05          Confidentiality. Except as necessary for the performance of Seller’s post-Closing obligations under this Agreement or any other Transaction Document, Seller agrees not to disclose and hold as such all of the confidential information of the Acquired Companies and refrain from using any such confidential information without the prior written consent of Buyer and shall deliver promptly to Buyer or destroy, at the request and option of Buyer, all tangible embodiments (and all copies) of such confidential information (other than attorney-client privileged communications) that are in its possession; provided however, Seller shall be permitted to disclose such confidential information (i) to its accountants in connection with the preparation and filing of any Tax Returns of Seller, (ii) to the extent disclosure is required by Law (including disclosure requirements of the Securities and Exchange Commission or the securities exchange or other stock market on which a Party’s securities are traded) or (iii) in connection with any dispute as between the Parties hereto over the terms of this Agreement.  In the event Seller is requested or required pursuant to oral or written question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar process to disclose any retained confidential information of the Acquired Companies, Seller will notify Buyer promptly of the request or requirement so that Buyer may seek an appropriate protective order or waive compliance with the provisions of this Section 4.05. If, in the absence of a protective order or the receipt of a waiver hereunder, Seller is, on the advice of counsel, compelled to disclose any retained confidential information of the Acquired Companies to any tribunal or else stand liable for contempt, Seller may disclose the confidential information to the tribunal; provided, however, Seller shall use commercially reasonable efforts to obtain, at the reasonable request of Buyer and at Buyer’s sole cost and expense, an order or other assurance that confidential treatment will be accorded to such portion of such confidential information required to be disclosed as Buyer shall designate.

 

ARTICLE V

CONDITIONS TO THE CLOSING; TERMINATION

Section 5.01          Conditions to the Obligations of the Parties. The obligations of the Buyer and the Seller to consummate the Transactions are subject to the following conditions occurring on or prior to the Closing Date:

Section 5.02          Termination. This Agreement may be terminated prior to the Closing only by mutual agreement of the Parties if the EE Inc. IPO has not occurred on or before February 28, 2022.

 

ARTICLE VI

GENERAL

Section 6.01          No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.

Section 6.02          Tax Matters

(a)

Transfer Taxes. In the event any Transfer Taxes are payable in connection with the purchase and sale of the Interests, each of Buyer and Seller shall be liable for 50% of such Transfer Taxes. Seller agrees to execute and deliver all instruments and certificates reasonably necessary to remit and/or minimize the amount of any such Transfer Taxes. If Buyer is required by Law to pay any such Transfer Taxes, Seller shall promptly reimburse Buyer within 10 days of receipt of written request from Buyer for its payment of such Transfer Taxes. If Seller is required by Law to pay any such Transfer Taxes, Buyer shall promptly reimburse Seller within 10 days of receipt of written request from Seller for Buyer’s portion of such Transfer Taxes.

Section 6.03          Entire Agreement. This Agreement, the other Transaction Documents and the documents referred to herein and therein constitutes the entire agreement among the Parties and supersede any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.

Section 6.04          Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the Parties.

Section 6.05          Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

Section 6.06          Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

Section 6.07          Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 6.08          Notices. All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (a) when delivered personally to the recipient, (b) one Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), (c) when sent by electronic mail (with written confirmation by the recipient of the recipient of such email), or (d) four Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient as set forth below:

Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Parties notice in the manner herein set forth.

Section 6.09          Governing Law. This Agreement, all other Transaction Documents and all disputes or controversies arising out of or relating to this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby (whether in contract, tort, equity or otherwise) shall be governed by, and construed in accordance with, the internal laws of the State of Delaware (including in respect of the statute of limitations or other limitations period applicable to any such dispute or controversy), without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware; provided, however, that if any other Transaction Document is expressly governed by the laws of a different jurisdiction, such Transaction Document and all disputes or controversies to the extent specifically arising out of such Transaction Document shall be governed by the laws so specified in such Transaction Document.

Section 6.10          Waiver of Jury Trial. Each of the Parties hereby irrevocably waives all right to a trial by jury in any action, proceeding or counterclaim (including any action or liability involving any of the financing sources) arising out of or relating to this Agreement or by the Transaction Documents.

Section 6.11          Consent to Jurisdiction; Venue. Any legal suit, action or proceeding arising out of or based upon this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby shall be instituted in the Federal Courts of the United States of America or the courts of the State of Oklahoma in each case located in the City of Tulsa and County of Tulsa, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

Section 6.12          Amendments; Waiver. This Agreement may not be amended except by an instrument in writing signed by the Parties.  No supplement, alteration or modification of this Agreement shall be binding unless executed in writing by the Parties. No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

Section 6.13          Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall continue in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.  Upon such determination that any term, provision, covenant or restriction is invalid, void or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

Section 6.14          Expenses. Except as provided in Section 6.02(a), each Party will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby.

Section 6.15          Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.

(Signature Page Follows)

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.

[Signature Page to Securities Purchase Agreement]

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