▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ AGREEMENT
by and among
GOTHAM PARTNERS, L.P.,
Gotham Partners III, L.P.,
Gotham Holdings II, L.L.C.
and
HIGH RIVER LIMITED PARTNERSHIP
dated as of March 1, 2003
TABLE OF CONTENTS
Page
Article I PURCHASE AND SALE; CLOSING.................................1
1.1 PURCHASE AND SALE..........................................1
1.2 PURCHASE PRICE.............................................1
1.3 CLOSING....................................................1
1.4 ADDITIONAL PURCHASE PRICE..................................1
1.5 NET WORTH..................................................1
Article II REPRESENTATIONS AND WARRANTIES OF SELLERS..................2
2.1 ORGANIZATION OF SELLER.....................................2
2.2 AUTHORITY..................................................2
2.3 TITLE......................................................2
2.4 NO CONFLICTS...............................................2
2.5 UNITS......................................................2
Article III REPRESENTATIONS AND WARRANTIES OF PURCHASER................3
3.1 ORGANIZATION OF PURCHASER..................................3
3.2 AUTHORITY..................................................3
3.3 NO CONFLICTS...............................................3
Article IV ASSIGNMENT AND ASSUMPTION..................................3
Article V DEFINITIONS.................................................3
Article VI STANDSTILL.................................................5
Article VII MISCELLANEOUS.............................................6
7.1 ENTIRE AGREEMENT...........................................6
7.2 WAIVER.....................................................6
7.3 AMENDMENT..................................................6
7.4 NO THIRD PARTY BENEFICIARY.................................7
7.5 ASSIGNMENT; BINDING EFFECT.................................7
7.6 HEADINGS...................................................7
7.7 INVALID PROVISIONS.........................................7
7.8 GOVERNING LAW..............................................7
7.9 COUNTERPARTS...............................................7
7.10 PURCHASER OBLIGATION.......................................7
7.11 FURTHER ASSURANCES.........................................8
7.12 LIABILITY..................................................8
7.13 NOTICES....................................................9
7.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................9
7.15 TERMINATION...............................................10
This UNIT PURCHASE AGREEMENT (the or this "Agreement"), dated as of March
1, 2003, is made and entered into by and among Gotham Partners, L.P., a New York
limited partnership ("Gotham"), Gotham Partners III, L.P., a New York limited
partnership, and Gotham Holdings II, L.L.C., a Delaware limited liability
company (collectively "Sellers" and each a "Seller"), on the one hand, and High
River Limited Partnership, a Delaware limited partnership ("Purchaser"), on the
other hand. Capitalized terms not otherwise defined herein have the meanings set
forth in ARTICLE V.
WHEREAS, Purchaser desires to purchase from Sellers, and Sellers desire to
sell to Purchaser, 235,000 Units (the "Sale Units") of limited partnership
interest in Hallwood Realty Partners, L.P. (the "Partnership"), on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Article I
PURCHASE AND SALE; CLOSING
1.1 PURCHASE AND SALE. Sellers agree to sell to Purchaser, and Purchaser
agrees to purchase from Sellers, the Sale Units, on the terms and subject to the
conditions set forth in this Agreement.
1.2 PURCHASE PRICE. The purchase price for the Sale Units is $80.00 per
unit, being an aggregate of $18,800,000 (the "Purchase Price"), payable in
immediately available United States funds at the Closing in the manner provided
in SECTION 1.3.
1.3 CLOSING. The Sale Units will be delivered via a DTC-book entry transfer
from the account of Sellers to the account of Purchaser, through Icahn & Co.,
Inc., against delivery of the Purchase Price in a transaction initiated on March
3, 2003.
1.4 ADDITIONAL PURCHASE PRICE. If, on or prior to the date that is 36
months after the date hereof, Purchaser sells or otherwise transfers, or agrees
(either orally or in writing) to sell or otherwise transfer, any of the Sale
Units (other than a sale or disposition to an Affiliate of Purchaser where such
Affiliate assumes the obligation to make the payment contemplated in this
sentence with respect to any disposition of such Sale Units), Purchaser will pay
to Gotham, as agent for all Sellers, within two business days following the sale
or other transfer, the Additional Purchase Price, at an account designated by
Gotham.
1.5 NET WORTH. Purchaser agrees that, on and after the date hereof, until
the termination of this Agreement, Purchaser shall maintain a net equity value
based on fair market value of at least $500 million; provided, however, that
Purchaser shall not be required to maintain such a net equity value if all of
the liabilities, obligations and duties of Purchaser pursuant to this Agreement
shall be assumed by a Person or Persons who, in the aggregate, shall maintain a
net equity value based on fair market value of at least $500 million until the
termination of this Agreement.
1
Article II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby represent and warrant to Purchaser as follows:
2.1 ORGANIZATION OF SELLER. Each Seller is an organization as contemplated
above duly organized, validly existing and in good standing under the Laws of
the place of its organization. Each Seller has full organizational power and
authority to execute and deliver this Agreement and to perform their respective
obligations hereunder and to consummate the transactions contemplated hereby,
including, without limitation, to sell and transfer (pursuant to this Agreement)
the Sale Units.
2.2 AUTHORITY. The execution and delivery by each Seller of this Agreement,
and the performance by such party of its obligations hereunder, have been duly
and validly authorized by the applicable general partner, manager or other
applicable body and no other organizational action on the part of any Seller or
its partners or members is necessary to approve this transaction. This Agreement
has been duly and validly executed and delivered by each Seller and constitutes
a legal, valid and binding obligation of each Seller enforceable against such
Seller in accordance with its terms.
2.3 TITLE. The delivery of the Sale Units by each Seller to Purchaser in
the manner provided in SECTION 1.3 will transfer to Purchaser good and valid
title to the Sale Units, free and clear of all Liens other than Liens created by
Purchaser.
2.4 NO CONFLICTS. (a) The execution and delivery by each Seller of this
Agreement does not, and the performance by such Seller of its obligations under
this Agreement and the consummation of the transactions contemplated hereby will
not conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the organizational documents of any Seller.
2.5 UNITS.
(a) As of the date hereof, Sellers are the Beneficial Owners of exactly
237,994 Units (including the Sale Units to be purchased hereunder).
(b) To the best knowledge of Sellers after due inquiry, as of the date
hereof, Sellers are not, and have not engaged in any arrangement, agreement,
understanding or other transaction, either alone or together with their
Affiliates or Associates (as defined in the Poison Pill) that has or will cause:
(x) any of them to be, an "Acquiring Person" (as defined in the Poison Pill), or
(y) a "Trigger Event" (as defined in the Poison Pill).
2
Article III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Sellers as follows:
3.1 ORGANIZATION OF PURCHASER. Purchaser is a limited partnership duly
organized, validly existing and in good standing under the Laws of the State of
Delaware. Purchaser has full organizational power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby including, without limitation,
to purchase (pursuant to this Agreement) the Sale Units.
3.2 AUTHORITY. The execution and delivery by Purchaser of this Agreement,
and the performance by Purchaser of its obligations hereunder, have been duly
and validly authorized and no other organizational action on the part of
Purchaser or its partners is necessary to approve this transaction. This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes a legal, valid and binding obligation of Purchaser enforceable
against Purchaser in accordance with its terms.
3.3 NO CONFLICTS. The execution and delivery by Purchaser of this Agreement
does not, and the performance by Purchaser of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not
conflict with or result in a violation or breach of any of the terms, conditions
or provisions of the organizational documents of Purchaser.
Article IV
ASSIGNMENT AND ASSUMPTION
Effective at the Closing, and subject to the terms of the Partnership
Agreement, each Seller transfers, assigns, conveys, grants and sets over to
Purchaser, its successors and assigns forever, all of such Seller's right, title
and interest as of such date in, to and under the Sale Units, including, without
limitation, all rights to any distribution thereunder.
Article V
DEFINITIONS
(a) DEFINED TERMS. As used in this Agreement, the following defined terms
have the meanings indicated below:
"ADDITIONAL PURCHASE PRICE" means any Covered Profits on any sale or other
transfer of any Sale Unit (each a "Covered Unit").
"ADDITIONAL SIGNATORIES" means the persons executing this agreement on the
signature page
hereof below the caption "Additional Signatories".
"AFFILIATE" means any Person that directly, or indirectly through one of
more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
"AGREEMENT" means this Unit Purchase Agreement, as the same shall be
amended from time to time.
"ASSETS AND PROPERTIES" of any Person means all assets and properties of
every kind, nature, character and description (whether real, personal or mixed,
whether tangible or intangible, and wherever situated), including the goodwill
related thereto, operated, owned or leased by such Person.
"BENEFICIAL OWNER" has the meaning attributed to it in the Poison Pill.
"CLOSING" means the closing of the transactions contemplated by SECTION
1.3.
"CLOSING DATE" means the closing date of the transactions contemplated by
SECTION 1.3.
"CONTRACT" means any agreement, lease, license, evidence of indebtedness,
mortgage, indenture, security agreement or other contract, including, without
limitation, the Partnership Agreement.
"CONTROL" means the possession of the power, directly or indirectly, to
direct or cause the direction of the management and policies of any other
person, whether through the ownership of voting securities, by contract, or
otherwise.
"COVERED PROFITS" means 50% of the net amount (after reasonable
commissions, legal expenses and regulatory filing fees and expenses) derived by
Purchaser and its Affiliates on the sale or other transfer of a Covered Unit in
excess of the sum of: (i) $80.00 plus (ii) interest thereon accruing on a daily
basis at a rate of 10% per annum (equitably adjusted for splits, stock dividends
and similar events). For example: if Purchaser derives net proceeds of $100 on
the sale of one Covered Unit that it has held for 18 months, then the "Covered
Profit" on that Covered Unit would be $4.00 computed as follows:
$80.00 + $12.00 (accrued interest) = $92.00
$100.00 - $92.00 = $8.00
$8.00 x 50% = $4.00
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States or any state, county, city or other political subdivision.
"LAWS" means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States or any state,
county, city or other political subdivision or of any Governmental or Regulatory
Authority.
"LICENSE" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental or Regulatory Authority.
"LIENS" means any mortgage, pledge, assessment, security interest, lease,
lien, adverse claim, levy, charge or other encumbrance of any kind, or any
conditional sale Contract, title retention Contract or other Contract to give
any of the foregoing.
"ORDER" means any writ, judgment, decree, injunction or similar order of
any Governmental or Regulatory Authority (in each such case whether preliminary
or final).
"PARTNERSHIP" has the meaning ascribed to it in the forepart of this
Agreement.
"PARTNERSHIP AGREEMENT" means the Amended and Restated Limited Partnership
Agreement of Hallwood Realty Partners, L.P., dated as of June 7, 1990, as
amended.
"PERSON" means any natural person, corporation, limited liability company,
general partnership, limited partnership, proprietorship, other business
organization, trust, union, association or Governmental or Regulatory Authority.
"POISON PILL" means the Partnership's Unit Purchase Rights Agreement with
The First National Bank of Boston as Rights Agent, dated as of November 30,
1990, as amended.
"PURCHASE PRICE" has the meaning ascribed to it in SECTION 1.2.
"PURCHASER" has the meaning ascribed to it in the forepart of this
Agreement.
"SALE UNITS" has the meaning ascribed to it in the forepart of this
Agreement.
"SELLER" has the meaning ascribed to it in the forepart of this Agreement.
"UNITS" means units of limited partnership interests in the Partnership.
3
Article VI
STANDSTILL
Each Seller and the persons signing as Additional Signatories below, each
individually and on its own behalf, agree that, from and after the execution
hereof, neither such Seller nor such Additional Signatory nor any of their
respective Affiliates or Associates (as defined in the Poison Pill) (the
"Covered Persons") will, nor will they authorize or permit any of their
respective representatives in their capacity as such to: (i) acquire, offer to
acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,
or become the Beneficial Owner of, any units or other interest in the
Partnership or direct or indirect rights to acquire any units or other interest
in the Partnership (including in all cases equity securities and securities
convertible into equity securities); provided, however, that neither Sellers nor
the Additional Signatories shall be in violation of this subclause (i) if a
Covered Person acquired, offered to acquire or agreed to acquire, or became the
Beneficial Owner of, units or other interests in the Partnership without the
knowledge of Sellers or the Additional Signatories, as the case may be; provided
further, however, that if Sellers or the Additional Signatories become aware of
such acquisition, offer or agreement, Sellers or the Additional Signatories
shall use reasonable best efforts to, or cause the Covered Persons to, sell,
transfer or otherwise dispose of such units or other interest in the
Partnership; (ii) make, or in any way participate in, directly or indirectly,
any "solicitation" of "proxies" (as such terms are used in the rules of the
Securities Exchange Commission) to vote, or seek to advise or influence any
person or entity with respect to the voting of, any units (other than the Units
beneficially owned by Sellers immediately after the Closing) or other interest
in the Partnership; provided, however, that neither Sellers nor the Additional
Signatories shall be in violation of this subclause (ii) if a Covered Person
discusses the Partnership or voting matters related to any units or other
interest in the Partnership, (iii) make any public announcement with respect to,
or submit a proposal for, or offer of (with or without conditions) any merger,
consolidation, business combination, tender or exchange offer, restructuring,
recapitalization, liquidation, dissolution or other extraordinary transaction of
or involving units or other interest in the Partnership, (iv) form, join or in
any way participate in a "group" (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934) in connection with any units or other interest
in the Partnership (other than to the extent it may be deemed to be part of a
"group" with Purchaser by virtue of having entered into this Agreement or by
virtue of the Units which will continue to be or were previously beneficially
owned by Sellers), or (v) enter into any written arrangements, understandings or
agreement with, or actively advise, assist or encourage, any persons in
connection with any of the foregoing; provided that the foregoing shall not
limit the right of Sellers to prosecute, in its discretion and at its sole cost
and expense, the existing litigation entitled Gotham Partners, ▇.▇. ▇. ▇▇▇▇▇▇▇▇
Realty Partners, et al. (Civ. Act. No. 15754NC) and any appeal therefrom.
Irreparable harm shall be presumed if any Person breaches any term or
provision of this Article VI. Accordingly, Sellers and the Additional
Signatories agree that Purchaser shall be entitled to an injunction and other
equitable relief, without posting any bond or security in connection therewith,
to prevent the breach of this Article VI. The equitable remedies contemplated
hereby shall not be deemed to be exclusive remedies for a breach of this
Agreement but shall be in addition to all other remedies available at law or
equity.
5
Article VII
MISCELLANEOUS
7.1 ENTIRE AGREEMENT. This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
7.2 WAIVER. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
7.3 AMENDMENT. This Agreement may be amended, supplemented or modified only
by a written instrument duly executed by or on behalf of the party to be charged
therewith.
6
7.4 NO THIRD PARTY BENEFICIARY. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto and their respective
successors or assigns, and it is not the intention of the parties to confer
third-party beneficiary rights upon any other Person, other than a person
referred to herein, such as by reference to an Affiliate or indemnified person.
7.5 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by Purchaser
without the prior written consent of the other parties, except that Purchaser
may from time to time assign or otherwise transfer, in whole or in part, any or
all of its rights, interests or obligations hereunder to its Affiliates;
provided that any such assignment or transfer shall not relieve Purchaser of any
of its obligations hereunder. Subject to the prior sentence, this Agreement is
binding upon, inures to the benefit of and is enforceable by the parties hereto
and their respective successors and assigns.
7.6 HEADINGS. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
7.7 INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance here from.
7.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Laws of the State of New York applicable to a Contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
7.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.10 PURCHASER OBLIGATION.
(a) Purchaser agrees to indemnify and hold Sellers and the Additional
Signatories and their Affiliates and each of their respective officers,
directors, partners, managers and employees (each, a "Seller Indemnified
Person") harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, charges, expenses and
disbursements (including reasonable fees and expenses of counsel) which may at
any time be imposed on, incurred by or asserted against any such Seller
Indemnified Person, as the result of any action taken by (or failure to act of)
Purchaser or its Affiliates following the execution and delivery of this
Agreement with respect to, or associated or in connection with, the Partnership
or Purchaser's interests therein, including the Sale Units (provided, that for
avoidance of doubt, such obligation of Purchaser shall not arise out of the
entry of the parties into this Agreement or any breach by Sellers or any
Additional Signatory of any of their representations, warranties, covenants or
agreements hereunder).
(b) If a third party commences any action or makes any demand against a
Seller Indemnified Person, such Seller Indemnified Person will promptly notify
Purchaser in writing of such action or demand; provided that any failure of any
Seller Indemnified Person to give such notice shall not relieve Purchaser of its
obligations under this SECTION 7.10, except to the extent that Purchaser is
actually prejudiced by such failure to give notice. Purchaser shall, at its own
expense, defend any action for which such Seller Indemnified Person is entitled
to indemnification hereunder and shall be entitled to control the defense of
such action with counsel (which counsel shall be chosen by Purchaser and
reasonably acceptable to Sellers) who shall jointly represent Purchaser and its
Affiliates and such Seller Indemnified Person; provided that in the event that a
Seller Indemnified Person desires to participate in such action with counsel
selected by such Seller Indemnified Person, such Seller Indemnified Person may
do so at its sole cost and expense; provided further, however, that if counsel
chosen by Purchaser cannot represent both Purchaser and such Seller Indemnified
Person due to a disparity in the defenses available to Purchaser and to such
Seller Indemnified Person, or other conflict of interest, such Seller
Indemnified Person may participate in such action with counsel reasonably
selected by such Indemnified Person at Purchaser's cost and expense.
(c) Purchaser shall have the right to settle any action, so long as any
such settlement results in a full release to all Seller Indemnified Persons
subject to such action with respect to the matters asserted therein.
(d) In the event that any Seller Indemnified Person brings a legal action
against Purchaser in order to enforce its right to such indemnification, if it
is ultimately determined by a final non-appealable order of a court of competent
jurisdiction that: (i) such Seller Indemnified Person is so entitled to
indemnification, then such Seller Indemnified Person asserting such claim shall
also be entitled to recover the reasonable cost and expense of counsel incurred
in asserting such claim and bringing such action against Purchaser; or (ii) such
Seller Indemnified Person has not prevailed in any such action, then such Seller
Indemnified Person shall pay to Purchaser the reasonable cost and expense of
counsel incurred by Purchaser and its Affiliates in defending such claim.
7
7.11 FURTHER ASSURANCES. Sellers shall execute and deliver, or cause to be
executed and delivered, to Purchaser such documents and agreements, and shall
take or cause to be taken such actions, as Purchaser may, from time to time,
request to carry out the terms and conditions of this Agreement. In addition to
the foregoing and not in limitation thereof, each Seller hereby agrees to take
such action and execute any transfer application or other documents (at the sole
cost and expense of Purchaser) as may be reasonably requested by Purchaser to
complete the transfer of the Sale Units contemplated herein and to permit
Purchaser to seek to become a substituted limited partner in the Partnership.
7.12 LIABILITY. Each Seller shall, each individually and on its own behalf,
be liable with respect to all losses, costs, damages, judgments, suits, charges,
expenses and disbursements (including reasonable fees and expenses of counsel)
("Losses") incurred or suffered by Purchaser or its Affiliates as a result of or
arising out of a breach by any Seller under this Agreement, and in particular
shall be liable for all Losses, of whatever nature, resulting from a breach by
Sellers of the terms of Article VI (Standstill) hereof. The Additional
Signatories shall, each individually and on his own behalf, be liable with
respect to all Losses incurred or suffered by Purchaser or its Affiliates as a
result of or arising out of a breach by such Additional Signatory of the terms
of Article VI (Standstill) hereof. Other than as set forth in the preceding
sentence, the Additional Signatories shall have no personal liability hereunder,
unless such Additional Signatory shall have intentionally and knowingly caused a
Seller to violate its obligations hereunder. Notwithstanding anything to the
contrary set forth in this Agreement, neither any Seller nor any Additional
Signatory shall be liable under Article VI for any action taken (or failure to
take any action) by their respective Associates (as defined in the Poison Pill)
unless (i) such Seller or such Additional Signatory, as the case may be, knew
that such Associate was taking actions in violation of this Agreement; and (ii)
such Seller or such Additional Signatory, as the case may be (A) had the
opportunity to prevent such Associate from taking such actions in violation of
this Agreement and (B) did not use such opportunity to prevent such Associate
from taking such action in violation of this Agreement.
8
7.13 NOTICES. All notices, requests and demands to or upon the respective
parties hereto shall be in writing, including by telecopy, and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made (a)
if delivered by hand (including by courier), when delivered, (b) in the case of
telecopy notice, when receipt has been confirmed by the transmitting telecopy
operator. In each case notice shall be sent to the address of the party to be
notified, as follows, or to such other address, telecopy number or person's
attention as may be hereafter designated by the respective parties hereto in
accordance with these notice provisions:
If to Purchaser:
High River Limited Partnership
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Sellers or Additional Signatories:
Gotham Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Agreement by the parties to this Agreement shall survive
indefinitely, except for the representation and warranty by Sellers set forth in
SECTION 2.5(b), which shall terminate and be of no further force and effect on
December 31, 2003. For purposes of clarity, nothing in this SECTION 7.14 shall
affect any claims asserted by Purchaser under SECTION 2.5(b) prior to December
31, 2003.
9
7.15 TERMINATION. This Agreement may be terminated only upon the prior
mutual written consent of each party hereto.
[Signature Page Follows]
10
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party hereto as of the date first above
written.
PURCHASER: SELLERS:
High River Limited Partnership Gotham Partners, L.P.
By: Barberry Corp., its general partner Gotham Partners III, L.P.
By: Section H Partners, L.P.,
its General Partner
. By: Karenina Corp., its General
Partner
By: /s/ ▇▇▇▇ ▇. Icahn.
Name: ▇▇▇▇ ▇. Icahn
Title: President By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Gotham Holdings II, L.L.C.
By: Gotham Holdings Management LLC,
the Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇
Title: Senior Managing Member
ADDITIONAL SIGNATORIES
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
[Signature Page to the Unit Purchase Agreement dated as of March 1, 2003]