-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hojsz9cKwo6jd19tlLgz6rysHQXm403hxCPD4gjNhBLnsLnRzuOM8FOUEnre1p6a YBxy3FmjBGxk7BW2y6PoVw== 0001104659-07-005009.txt : 20070126 0001104659-07-005009.hdr.sgml : 20070126 20070126164302 ACCESSION NUMBER: 0001104659-07-005009 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20070126 DATE AS OF CHANGE: 20070126 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MRU HOLDINGS INC CENTRAL INDEX KEY: 0001145202 STANDARD INDUSTRIAL CLASSIFICATION: LOAN BROKERS [6163] IRS NUMBER: 330954381 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78288 FILM NUMBER: 07557162 BUSINESS ADDRESS: STREET 1: 1114 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: (212) 398-1780 MAIL ADDRESS: STREET 1: 1114 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: PACIFIC TECHNOLOGY INC DATE OF NAME CHANGE: 20030306 FORMER COMPANY: FORMER CONFORMED NAME: DR PROTEIN COM INC DATE OF NAME CHANGE: 20010718 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Nomura Credit & Capital, Inc. CENTRAL INDEX KEY: 0001317700 IRS NUMBER: 134012258 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2 WORLD FINANCIAL CENTER STREET 2: BUILDING B CITY: NEW YORK STATE: NY ZIP: 10281 BUSINESS PHONE: 212-667-9318 MAIL ADDRESS: STREET 1: 2 WORLD FINANCIAL CENTER STREET 2: BUILDING B CITY: NEW YORK STATE: NY ZIP: 10281 SC 13D/A 1 a07-2154_1sc13da.htm SC 13D/A

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D (Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)

Under the Securities Exchange Act of 1934
(Amendment No. 3)(1)

MRU Holdings, Inc.

(Name of Issuer)

Common Stock ($0.001 par value)

(Title of Class of Securities)

55348A102

(CUSIP Number)

Robert Leifer
Nomura Credit & Capital, Inc.
2 World Financial Center, Building B
New York, New York 10281
(212) 667-9300

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

January 19, 2007

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

(1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 55348A102

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Nomura Credit & Capital, Inc. 13-4012258

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) N/A

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 6,549,449 shares.

			8.	Shared Voting Power -0-

			9.	Sole Dispositive Power 6,549,449 shares.

			10.	Shared Dispositive Power -0-

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 6,549,449 shares.

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 26.3%

	14.	Type of Reporting Person (See Instructions) CO

Item 1.	Security and Issuer
This Statement on Schedule 13D (this “Statement”) relates to a series of sales, subject to certain conditions, of shares of common stock, par value $0.001 per share (“Warrant Shares”), of MRU Holdings, Inc., a Delaware corporation (the “Issuer”) by Nomura Credit & Capital, Inc. (“NCCI”). Assuming the conditions to the sales of the Warrant Shares are satisfied, NCCI will acquire the shares pursuant to the partial exercise of a warrant held by NCCI, and the warrant will, after such exercise, be exercisable to purchase 295,004 shares of Common Stock. The principal executive office of the Issuer is located at 600 Lexington Avenue, New York, New York 10022.

Item 2.	Identity and Background
NCCI, a subsidiary of Nomura Holdings, Inc., is a Delaware corporation and its principal business is financing and aggregation of assets leading to the securitization of such assets. NCCI’s principal office and principal place of business are located at 2 World Financial Center, Building B, New York, New York 10281. During the last five years, NCCI (i) has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) and (ii) has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction whereby, as a result of such proceeding, NCCI was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3.	Source and Amount of Funds or Other Consideration
N/A.

Item 4.	Purpose of Transaction
On January 19, 2007 and January 25, 2007, NCCI entered into a series of agreements to sell, subject to certain conditions, 4,800,000 Warrant Shares of the Issuer (the “Transactions”) in the aggregate. The obligations of the respective parties to consummate the Transactions, including the transfers of the Warrant Shares, are conditioned upon the effectiveness of a Registration Statement on Form S-3 that the Issuer filed with the Securities and Exchange Commisssion (the “SEC”) on November 9, 2006 (the “Registration Statement”). In the event the Registration Statement has not been declared effective by the SEC by February 28, 2007, in the case of the Perry Transaction (as defined in Item 6 below), or by February 13, 2007, in the case of the CRT Transaction and the Harbor Drive Transaction (as such terms are defined in Item 6 below), NCCI and the respective purchasers pursuant to each of the agreements will have the option to terminate the respective agreement. As of January 26, 2007, all material conditions to the parties’ obligations to consummate the Transactions were not yet satisfied. Assuming the conditions to the Transactions are satisfied, the Warrant Shares will be transferred pursuant to the partial exercise of a warrant held by NCCI (“Warrant No. 5”) dated December 21, 2006 issued to NCCI by the Issuer, which is included as Exhibit 99.2 to this Statement. NCCI is currently evaluating various additional opportunities to sell Common Stock of the Issuer to other private parties.

Item 5.	Interest in Securities of the Issuer
(a) Following the satisfaction of the conditions to, and the consummation of, the Transactions, NCCI will have the right, pursuant to Warrant No. 5, to purchase 295,004 shares of the Common Stock of the Issuer. NCCI holds an additional warrant to purchase 1,454,445 shares of Common Stock of the Issuer, which is exercisable on the earlier of (i) February 5, 2007 and (ii) the occurrence of an Acceleration Event, as such term is defined in Warrant No. 2 (“Warrant No. 2”) dated February 4, 2005 issued to NCCI by the Issuer, which is included as Exhibit 99.1 to this Statement. Using the calculation methodology required by Rule 13-3(d)(1)(i), the number of shares underlying Warrant No. 2 and Warrant No. 5 held by NCCI equals 26.3% of the Issuer’s outstanding Common Stock. (b) Assuming exercise by NCCI of Warrant No. 5 and Warrant No. 2, the number of shares as to which there would be sole power to vote or direct the vote and sole power to dispose or direct the disposition of:

6,549,449 shares. (c) Not Applicable. (d) Not Applicable. (e) Not Applicable.

Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
On January 19, 2007, NCCI entered into a Securities Purchase Agreement (the “CRT Securities Purchase Agreement”) by and among NCCI, CRT Capital Group LLC (“CRT”), and McGuireWoods LLP (“McGuire”), as Escrow Agent, pursuant to which NCCI agreed to sell to CRT, subject to certain conditions, 2,500,000 Warrant Shares in exchange for cash in the amount of $5.30 per share (the “CRT Transaction”). On January 19, 2007, NCCI entered into a Securities Purchase Agreement (the “Harbor Drive Securities Purchase Agreement”) by and among NCCI, Harbor Drive Special Situations Master Fund Ltd. (“Harbor Drive”), and McGuire, as Escrow Agent, pursuant to which NCCI agreed to sell to Harbor Drive, subject to certain conditions, 500,000 Warrant Shares in exchange for cash in the amount of $5.30 per share (the “Harbor Drive Transaction”). On January 25, 2007, NCCI entered into an Amended and Restated Securities Purchase Agreement (the “Perry Securities Purchase Agreement” and, together with the CRT Securities Purchase Agreement and the Harbor Drive Securities Purchase Agreement, the “Securities Purchase Agreements”) by and among NCCI, Perry Partners LP, Perry Partners International Inc., Perry Commitment Fund LP, Perry Commitment Master Fund LP (collectively, “Perry”) and McGuireWoods LLP (“McGuire”), as Escrow Agent, pursuant to which NCCI agreed to sell to Perry, subject to certain conditions, 1,800,000 Warrant Shares in exchange for cash in the amount of $5.30 per share (the “Perry Transaction”). The descriptions of the Securities Purchase Agreements set forth herein are qualified in their entirety by reference to the actual terms of the Securities Purchase Agreements, which are attached as Exhibits 99.3, 99.4 and 99.5 to this Statement. See the response to Item 4 above for additional description of the terms of the Securities Purchase Agreements.

Item 7.	Material to Be Filed as Exhibits

Exhibit Number		Description
99.1		Warrant No. 2 dated February 4, 2005 to purchase shares of common stock of the Issuer issued to NCCI (incorporation herein by reference to Exhibit 4.2 to the Issuer’s Current Report on Form 8-K dated February 10, 2005)

99.2		Warrant No. 5 dated December 21, 2006 to purchase shares of common stock of the Issuer issued to NCCI (incorporated herein by reference to Exhibit 99.1 to the Issuer’s filing on Schedule 13D dated December 29, 2006

99.3		Securities Purchase Agreement dated January 19, 2007 by and among NCCI, CRT Capital Group LLC and McGuireWoods LLP, as Escrow Agent

99.4		Securities Purchase Agreement dated January 19, 2007 by and among NCCI, Harbor Drive Special Situations Master Fund Ltd. and McGuireWoods LLP, as Escrow Agent

99.5		Amended and Restated Securities Purchase Agreement dated January 25, 2007 by and among NCCI, Perry Partners LP, Perry Partners International Inc., Perry Commitment Fund LP, Perry Commitment Master Fund LP and McGuireWoods LLP, as Escrow Agent

SIGNATURES

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: January 26, 2007

NOMURA CREDIT & CAPITAL, INC.


	By:	/s/ Robert Leifer
		Name: Robert Leifer
		Title: Director

EX-99.3 2 a07-2154_1ex99d3.htm EX-99.3

EXHIBIT 99.3

STOCK PURCHASE AGREEMENT

This Stock Purchase Agreement (the “Agreement”), dated as of January 19, 2007, is by and between Nomura Credit & Capital, Inc. (the “Seller”), CRT Capital Group LLC (the “Buyer”) and McGuireWoods LLP (the “Escrow Agent”).

W I T N E S S E T H:

WHEREAS, the Seller holds a warrant (the “Warrant”) exercisable for 5,095,004 shares of Common Stock of MRU Holdings, Inc. a Delaware company (the “Company”), at an exercise price of $3.50 (the “Exercise Price”) per Warrant Share (as defined below);

WHEREAS, the Warrant was originally issued by the Company on February 4, 2005 and is currently represented by a warrant certificate dated December 21, 2006, registered in the name of the Seller on the books of the Company;

WHEREAS, the parties hereto desire that the Seller sell, transfer, convey and assign to the Buyer, and the Buyer purchase and acquire from the Seller, 2,500,000 shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) underlying the Warrant (the “Warrant Shares”); and

WHEREAS, the Company has filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (Registration No. 333-138558), originally filed with the Securities and Exchange Commission on November 9, 2006 (as the same has been amended and may be amended hereafter, the “Registration Statement”) covering the resale of the 2,500,000 Warrant Shares.

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1. Sale and Purchase of Common Stock; Closing.

1.1 Sale and Purchase of Warrant Shares. Subject to the terms and conditions of this Agreement, the Seller shall sell, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the Warrant Shares for and in consideration of the sum of Thirteen Million Two Hundred Fifty Thousand Dollars ($13,250,000)(the “Purchase Amount”), payable as set forth in Section 1.2 hereof.

1.2 Closing: Escrow Arrangement. The Seller shall provide the Buyer notice promptly after it learns that the Registration Statement has been declared effective by the Securities and Exchange Commission. On the later of February 10, 2007 and the second business day after the date the Seller provides such notice to the Buyer, the Buyer will be obligated to deposit the Purchase Amount with the Escrow Agent. The Escrow Agent shall notify the Seller by fax at the time of its receipt of the Purchase Amount. Within one business

day after receipt of this notification from the Escrow Agent, the Seller shall deliver (the date of such delivery being referred to as the “Irrevocable Date”) to the Escrow Agent a duly executed Subscription Form (attached to the Warrant as Annex A) indicating that 2,500,000 Warrant Shares be issued in the name of the Buyer in such amounts as the Buyer shall direct. The Escrow Agent shall deliver the executed Subscription Form and the Warrant to the Company not later than one business day following its receipt of the same. Upon receipt from the Company’s transfer agent of 2,500,000 Warrant Shares issued in the name of the Buyer, as provided above, the Escrow Agent shall deliver (a) to the Seller, by wire transfer in immediately available funds to the account designated by the Seller in writing to the Escrow Agent, Four Million Five Hundred Thousand Dollars ($4,500,000), which amount represents the Purchase Amount minus the product of the Exercise Price multiplied by the 2,500,000 Warrant Shares, (b) to the Buyer, the 2,500,000 Warrant Shares, and (c) to the Company, by wire transfer in immediately available funds to the account designated by the Company in writing to the Escrow Agent, Eight Million Seven Hundred Fifty Thousand Dollars ($8,750,000), which amount represents the product of the Exercise Price multiplied by the 2,500,000 Warrant Shares.

1.3 Escrow Agent Opinion. The Escrow Agent, as counsel to the Company, agrees to deliver, on the date the Warrant Shares are delivered to the Escrow Agent, its opinion, addressed to the Buyer, the Seller and the Company (and the transfer agent, if required), that the sale of the Warrant Shares contemplated hereby is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Act”). The Seller and the Buyer each hereby acknowledges and agrees that the Escrow Agent will be relying upon representations and warranties made by it herein as if made directly to the Escrow Agent.

1.4 Additional Covenants. The Buyer and the Seller each agrees to make commercially reasonable efforts to (i) promptly take such steps, and execute and deliver such instruments, corporate resolutions and other documents, as may be reasonably requested by the Company, or the transfer agent of the Company, to cause the Company to deliver the Warrant Shares to the Escrow Agent and (ii) cause the Company to include the Buyer as a named selling stockholder in the Registration Statement and related prospectus covering all of the Warrant Shares filed with the Securities and Exchange Commission and to make such other changes to the Registration Statement and the prospectus as may be required for the Buyer to be able to transfer the Warrant Shares thereunder.

1.5 Registration Rights Agreement. It shall be a condition to the Buyer’s obligations hereunder that the Buyer and the Company enter into a registration rights agreement substantially in the form of the Buyer’s draft dated January 19, 2007 which the Buyer has delivered to the Seller.

SECTION 2. Representations and Warranties of the Buyer. The Buyer represents and warrants to the Seller, as of the date hereof and as of the Irrevocable Date, as follows:

by the Buyer of the documents and transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Buyer. This Agreement constitutes a valid and legally binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.

2.2 Investment Intent. The Buyer is acquiring the Warrant Shares for investment and for its own account and not as a nominee or agent, and not with a view to or for sale in connection with any distribution, resale or public offering of such Warrant Shares or any part thereof in violation of the Act. The Buyer does not presently have any contract, undertaking, agreement or arrangement with any entity, organization or individual (each a “Person”) to sell, transfer or grant participations to any Person with respect to the Warrant Shares.

2.3 Investment Experience; Access to Information. The Buyer (a) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Warrant Shares and to make an informed decision to so invest, has so evaluated and understands said risks and merits, and can afford a complete loss of such investment, (b) understands the terms of, and risks associated with, the acquisition of the Warrant Shares, and (c) has had the opportunity to review such disclosure regarding the Company, its business, its financial condition and its prospects as the Buyer has determined to be necessary in connection with the purchase of the Warrant Shares, including all of the Company’s filings with the Securities and Exchange Commission.

2.4 Buyer Status. At the time the Buyer was offered the Warrant Shares it was, and at the date hereof it is, an “accredited investor” as that term is defined in Rule 501(a) under the Act.

2.5 Restrictions on Transfer. The Buyer understands that (a) the Warrant Shares have not been registered under the Act or the laws of any state, (b) the Warrant Shares will be “restricted securities” as said term is defined in Rule 144 of the Rules and Regulations promulgated under the Act, (c) the Warrant Shares may not be sold, pledged or otherwise transferred unless a registration statement for such transaction is effective under the Act and any applicable state laws, or unless an exemption from such registration provisions is available with respect to such transaction, (d) the certificates for Warrant Shares will bear a legend to the effect that the transfer of the Warrant Shares is subject to the aforestated and a transfer request must, if required by the Company, be accompanied by an opinion of legal counsel satisfactory to the Company that such transfer is exempt from registration under the Act and (e) “stop transfer” instructions will be placed against the Warrant Shares until such time as the Registration Statement has been declared effective.

2.6 General Solicitation. The Buyer is not purchasing the Warrant Shares as a result of any advertisement, article, notice or other communication regarding the Warrant Shares

published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement (each, a “General Solicitation”).

2.7 No Conflicts or Violations. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which the Buyer is subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under, any agreement, credit facility, debt or other instrument or understanding to which the Buyer is a party or by which it is bound.

2.8 No Litigation. There is no action, suit, proceeding, judgment, claim or investigation pending, or to the knowledge of the Buyer, threatened against the Buyer which could reasonably be expected in any manner to challenge or seek to prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement.

2.9 Consents. No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other Person is required for the valid authorization, execution, delivery and performance by the Buyer of this Agreement and the consummation of the transactions contemplated hereby.

2.10 Non-Public Information. The Buyer is not purchasing the Warrant Shares “on the basis of” (as defined in Rule 10b5-1 of the Exchange Act) any material, non-public information about the Company or the Warrant Shares.

SECTION 3. Representations and Warranties of the Seller. The Seller represents and warrants to the Buyer, as of the date hereof and as of the Irrevocable Date (except that the representation and warranty in Section 3.4 is only given as of the Irrevocable Date), as follows:

3.1 Authorization of Agreement. The Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Seller of the documents and transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Seller. This Agreement constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.

3.2 Title to the Warrant. The Seller is the lawful owner of the portion of the Warrant exercisable for the Warrant Shares with good and marketable title thereto, and the Seller

has the absolute right to exercise the Warrant to purchase the Warrant Shares and to sell, assign, convey, transfer and deliver the Warrant Shares, and any and all rights and benefits incident to the ownership thereof, all of which rights and benefits are being transferred by the Seller to the Buyer free and clear of all the following (collectively called “Claims”) of any nature whatsoever: security interests, liens, pledges, claims (pending or threatened), charges, escrows, encumbrances, lock-up arrangements, options, rights of first offer or refusal, community property rights, mortgages, indentures, security agreements or other agreements, arrangements, contracts, commitments, understandings or obligations, whether written or oral and whether or not relating in any way to credit or the borrowing of money. Delivery to the Buyer of the Warrant Shares, will (i) pass good and marketable title to the Warrant Shares to the Buyer, free and clear of all Claims (assuming that the Buyer is a bona fide purchaser within the meaning of the New York Uniform Commercial Code), and (ii) convey, free and clear of all Claims, any and all rights and benefits incident to the ownership of such Warrant Shares.

3.3 Original Acquisition; No General Solicitation. The Warrant was originally acquired by the Seller on February 2, 2005 for investment and for its own account and not with a view to, or for sale in connection with, any distribution, resale or public offering of such Warrant or any part thereof in violation of the Act. The Seller did not offer or sell the Warrant to the Buyer by any form of General Solicitation.

3.4 No Conflicts or Violations. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which the Seller is subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which the Seller is a party or by which it is bound.

3.5 No Litigation. There is no action, suit, proceeding, judgment, claim or investigation pending or, to the knowledge of the Seller, threatened against the Seller which could reasonably be expected in any manner to challenge or seek to prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement.

3.6 Consents. No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other Person is required for the valid authorization, execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated hereby.

3.7 Bankruptcy. The Seller is not under the jurisdiction of a United States bankruptcy court or involved in any comparable bankruptcy proceeding in any jurisdiction in the world or in any insolvency proceeding, conservatorship or reorganization in any jurisdiction in the world.

3.8 Non-Public Information. The Seller is not selling the Warrant Shares “on the basis of” (as defined in Rule 10b5-1 of the Exchange Act) any material, non-public information about the Company or the Warrant Shares.

SECTION 4. Termination.

4.1 If the Registration Statement has not been declared effective by the Securities and Exchange Commission on or before February 13, 2007, either the Buyer or the Seller shall have the right to terminate this Agreement; provided, that the termination date of this Agreement may be extended if mutually agreed by the Buyer and the Seller.

4.2 This Agreement may be terminated by the Seller or the Buyer by written notice to the other (with a copy to the Escrow Agent) if the other party hereto fails to comply in any material respect with any of its covenants or agreements contained herein, or breaches its representations and warranties in any material way.

4.3 If this Agreement is terminated as provided herein, no party to this Agreement shall have any liability or further obligation to any other party to this Agreement except as provided in Sections 6, 9 and 16.7 (which shall survive such termination); provided, however, that no termination of this Agreement pursuant to this Section 4 shall relieve any party of liability for a breach of any provision of this Agreement occurring before such termination.

4.4 Upon the termination of this Agreement, the Escrow Agent shall promptly deliver to the Buyer any cash delivered to the Escrow Agent pursuant to this Agreement and shall promptly deliver to the Seller the Subscription Form and Warrant theretofore delivered by the Seller.

SECTION 5. Survival of Representations and Warranties. All representations and warranties of the Buyer and the Seller shall survive the Irrevocable Date. The Seller may rely upon the Buyer’s representations and warranties in this Agreement for the purpose of complying with federal securities law.

SECTION 6. Indemnification. Each party hereto shall indemnify and hold harmless the other party and the Escrow Agent (and their respective affiliates, directors, officers, employees, successors and assigns) from and against any and all losses, claims, damages, liabilities and expenses based upon, arising out of or otherwise in respect of, any inaccuracy in, or any breach of, the representations or warranties of such party or the covenants or agreements made by such party in this Agreement.

SECTION 7. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or to the recipient’s offices by a recognized overnight courier service or sent by facsimile (upon confirmation of receipt) addressed to the party to be notified at such party’s mailing address or facsimile number as set forth below:

Escrow Agent

McGuireWoods LLP

1345 Avenue of the Americas, 7^th Floor

New York, NY 10105

Attn: Louis W. Zehil, Esq.

Facsimile: (212) 548-2175

Seller

Nomura Credit & Capital, Inc.

2 World Financial Center, 21^st Floor

New York, NY 10281

Attn: Robert Leifer

Facsimile: (646) 587-9437

with a copy to (which shall not constitute notice):

Sidley Austin LLP

One S. Dearborn St.

Chicago, IL 60603

Attn: John P. Kelsh

Facsimile: (312) 853-7036

Buyer

CRT Capital Group LLC

262 Harbor Drive

Stamford, CT 06902

Attn: Paul Bigler

Facsimile: (203) 569-6499

with a copy to (which shall not constitute notice):

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY 10019

Attn: William N. Dye

Facsimile: (212) 728-9219

SECTION 8. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of each of the parties hereto and any successors to the businesses of the Buyer or the Seller. Neither the Buyer nor the Seller may assign its rights or obligations hereunder except to persons described in the preceding sentence and except that the Buyer may assign the right to purchase any or all of the Warrant Shares hereunder to Harbor Drive Special Situations Master Fund Ltd.

SECTION 9. Expenses. Each party hereto shall pay the fees and expenses of any broker engaged by such party and of such party’s advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement, and shall hold the other party hereto harmless against any liability, loss or expense (including, without limitation,

reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim for such fees and expenses; provided, however, that the Seller shall pay any transfer, stamp or similar taxes, if any, that are payable in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, neither party has used the services of a broker or finder in connection with the transaction contemplated hereby.

SECTION 10. Execution Counterparts. This Agreement may be executed and delivered via facsimile in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

SECTION 11. Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired hereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

SECTION 12. Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the matters contemplated hereby, and there are no written or oral representations, warranties, understandings or agreements with respect hereto except as expressly set forth herein.

SECTION 13. Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.

SECTION 14. Confidentiality. Each of the Buyer, the Seller and the Escrow Agent hereby agrees, without the prior written consent of the others, to not disclose, and to otherwise keep confidential, the sale of the Warrant Shares or the other matters contemplated hereby, except to the extent that disclosure thereof is required to effectuate the transfer as contemplated herein or by applicable law, rule or regulation or if necessary to enforce any rights hereunder; provided, however, that the Buyer and the Seller may disclose information regarding such sale to their respective accountants and attorneys.

SECTION 15. Governing Law; Consent to Jurisdiction and Service Process. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof. The parties hereto hereby irrevocably agree that any suit or proceeding arising directly and/or indirectly pursuant to or under this Agreement, shall be brought solely in a federal or state court located in the Borough of Manhattan, State of New York. By their execution hereof, the parties hereby covenant and irrevocably submit to the in personam jurisdiction of any such court and agree that any process in any such action may be served upon any of them personally, or by registered mail, return receipt requested, or by nationally recognized overnight courier service, with the same force and effect as if personally served upon them in New York. The parties hereto waive any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense of lack of in personam jurisdiction with respect thereto.

SECTION 16. Escrow Provisions. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act it may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s legal counsel shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.

16.1 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.

16.2 The Escrow Agent shall not be liable in any respect on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for thereunder in the absence of gross negligence, fraud or willful misconduct.

16.3 The Escrow Agent shall be entitled to employ such legal counsel and other experts as the Escrow Agent may deem necessary to advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel. The Escrow Agent has acted as legal counsel for the Company, and may continue to act as legal counsel for Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. The Seller and the Buyer consent to the Escrow Agent acting in such capacity as legal counsel for the Company, including in connection with any dispute arising under this Agreement, and waive any claim that such representation represents a conflict of interest on the part of the Escrow Agent. The Seller and the Buyer understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Agreement.

16.4 The Escrow Agent’s responsibilities hereunder shall terminate if the Escrow Agent shall resign, which it may do after giving 30 days’ advance written notice of resignation to the Seller and the Buyer. In the event of any such resignation, the Buyer and the Seller shall appoint a successor the Escrow Agent and the Escrow Agent shall deliver to such successor Escrow Agent any escrow property and other documents held by the Escrow Agent.

16.5 If the Escrow Agent reasonably requires other or further instruments in connection with this Agreement or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.

Escrow Agent’s sole discretion, (1) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the other escrow property until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings, or (2) to deliver the escrow property and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York, in accordance with the applicable procedure therefore.

16.7 The Seller and the Buyer agree severally to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance as the Escrow Agent hereunder other than any such claim, liability, cost or expense to the extent the same shall have resulted from the gross negligence, fraud or willful misconduct of the Escrow Agent.

[Signature Page Follows]

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

MCGUIREWOODS LLP


By:	/s/ Louis W. Zehil
Name:		Louis W. Zehil, Esq.
Title:		Partner


NOMURA CREDIT & CAPITAL, INC.


By:	/s/ Robert Leifer
Name:		Robert Leifer
Title:		Director


CRT CAPITAL GROUP LLC

By: CRT Capital Holdings LLC


By:	/s/ J. Christopher Young
Name:		J. Christopher Young
Title:		Managing Member

EX-99.4 3 a07-2154_1ex99d4.htm EX-99.4

EXHIBIT 99.4

STOCK PURCHASE AGREEMENT

This Stock Purchase Agreement (the “Agreement”), dated as of January 19, 2007, is by and between Nomura Credit & Capital, Inc. (the “Seller”), Harbor Drive Special Situations Master Fund Ltd. (the “Buyer”) and McGuireWoods LLP (the “Escrow Agent”).

W I T N E S S E T H:

WHEREAS, the parties hereto desire that the Seller sell, transfer, convey and assign to the Buyer, and the Buyer purchase and acquire from the Seller, 500,000 shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) underlying the Warrant (the “Warrant Shares”); and

SECTION 1. Sale and Purchase of Common Stock; Closing.

1.1 Sale and Purchase of Warrant Shares. Subject to the terms and conditions of this Agreement, the Seller shall sell, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the Warrant Shares for and in consideration of the sum of Two Million Six Hundred Fifty Thousand Dollars ($2,650,000)(the “Purchase Amount”), payable as set forth in Section 1.2 hereof.

obligated to deposit the Purchase Amount with the Escrow Agent. The Escrow Agent shall notify the Seller by fax at the time of its receipt of the Purchase Amount. Within one business day after receipt of this notification from the Escrow Agent, the Seller shall deliver (the date of such delivery being referred to as the “Irrevocable Date”) to the Escrow Agent a duly executed Subscription Form (attached to the Warrant as Annex A) indicating that 500,000 Warrant Shares be issued in the name of the Buyer in such amounts as the Buyer shall direct. The Escrow Agent shall deliver the executed Subscription Form and the Warrant to the Company not later than one business day following its receipt of the same. Upon receipt from the Company’s transfer agent of 500,000 Warrant Shares issued in the name of the Buyer, as provided above, the Escrow Agent shall deliver (a) to the Seller, by wire transfer in immediately available funds to the account designated by the Seller in writing to the Escrow Agent, Nine Hundred Thousand Dollars ($900,000), which amount represents the Purchase Amount minus the product of the Exercise Price multiplied by the 500,000 Warrant Shares, (b) to the Buyer, the 500,000 Warrant Shares, and (c) to the Company, by wire transfer in immediately available funds to the account designated by the Company in writing to the Escrow Agent, One Million Seven Hundred Fifty Thousand Dollars ($1,750,000), which amount represents the product of the Exercise Price multiplied by the 500,000 Warrant Shares.

SECTION 2. Representations and Warranties of the Buyer. The Buyer represents and warrants to the Seller, as of the date hereof and as of the Irrevocable Date, as follows:

2.1 Organization; Authority. The Buyer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, with full right, power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Buyer of the documents and transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Buyer. This Agreement constitutes a valid and legally binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.

2.4 Buyer Status. At the time the Buyer was offered the Warrant Shares it was, and at the date hereof it is, an “accredited investor” as that term is defined in Rule 501(a) under the Act.

Act and (e) “stop transfer” instructions will be placed against the Warrant Shares until such time as the Registration Statement has been declared effective.

2.6 General Solicitation. The Buyer is not purchasing the Warrant Shares as a result of any advertisement, article, notice or other communication regarding the Warrant Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement (each, a “General Solicitation”).

SECTION 3. Representations and Warranties of the Seller. The Seller represents and warrants to the Buyer, as of the date hereof and as of the Irrevocable Date (except that the representation and warranty in Section 3.4 is only given as of the Irrevocable Date), as follows:

any other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.

3.2 Title to the Warrant. The Seller is the lawful owner of the portion of the Warrant exercisable for the Warrant Shares with good and marketable title thereto, and the Seller has the absolute right to exercise the Warrant to purchase the Warrant Shares and to sell, assign, convey, transfer and deliver the Warrant Shares, and any and all rights and benefits incident to the ownership thereof, all of which rights and benefits are being transferred by the Seller to the Buyer free and clear of all the following (collectively called “Claims”) of any nature whatsoever: security interests, liens, pledges, claims (pending or threatened), charges, escrows, encumbrances, lock-up arrangements, options, rights of first offer or refusal, community property rights, mortgages, indentures, security agreements or other agreements, arrangements, contracts, commitments, understandings or obligations, whether written or oral and whether or not relating in any way to credit or the borrowing of money. Delivery to the Buyer of the Warrant Shares, will (i) pass good and marketable title to the Warrant Shares to the Buyer, free and clear of all Claims (assuming that the Buyer is a bona fide purchaser within the meaning of the New York Uniform Commercial Code), and (ii) convey, free and clear of all Claims, any and all rights and benefits incident to the ownership of such Warrant Shares.

SECTION 4. Termination.

SECTION 5. Survival of Representations and Warranties. All representations and warranties of the Buyer and the Seller shall survive the Irrevocable Date. The Seller may rely upon the Buyer’s representations and warranties in this Agreement for the purpose of complying with federal securities law.

SECTION 6. Indemnification. Each party hereto shall indemnify and hold harmless the other party and the Escrow Agent (and their respective affiliates, directors, officers, employees, successors and assigns) from and against any and all losses, claims, damages, liabilities and expenses based upon, arising out of or otherwise in respect of, any inaccuracy in, or any breach of, the representations or warranties of such party or the covenants or agreements made by such party in this Agreement.

SECTION 7. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or

to the recipient’s offices by a recognized overnight courier service or sent by facsimile (upon confirmation of receipt) addressed to the party to be notified at such party’s mailing address or facsimile number as set forth below:

Escrow Agent

McGuireWoods LLP

1345 Avenue of the Americas, 7^th Floor

New York, NY 10105

Attn: Louis W. Zehil, Esq.

Facsimile: (212) 548-2175

Seller

Nomura Credit & Capital, Inc.

2 World Financial Center, 21^st Floor

New York, NY 10281

Attn: Robert Leifer

Facsimile: (646) 587-9437

with a copy to (which shall not constitute notice):

Sidley Austin LLP

One S. Dearborn St.

Chicago, IL 60603

Attn: John P. Kelsh

Facsimile: (312) 853-7036

Buyer

Harbor Drive Special Situations Master Fund Ltd.

c/o Walkers SPV Limited

Walker House, 87 Mary Street

Georgetown, Grand Cayman KY1-9002

Cayman Islands

Attn: Robert P. Lee

with a copy to (which shall not constitute notice):

Wilkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019-6099

Attn: William Dye

Facsimile: (212) 728-9219

SECTION 8. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of each of the parties hereto and any successors to the businesses of the Buyer or the Seller. Neither the Buyer nor the Seller may assign its rights or obligations hereunder except to persons described in the preceding sentence.

SECTION 9. Expenses. Each party hereto shall pay the fees and expenses of any broker engaged by such party and of such party’s advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement, and shall hold the other party hereto harmless against any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim for such fees and expenses; provided, however, that the Seller shall pay any transfer, stamp or similar taxes, if any, that are payable in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, neither party has used the services of a broker or finder in connection with the transaction contemplated hereby.

SECTION 10. Execution Counterparts. This Agreement may be executed and delivered via facsimile in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

SECTION 11. Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired hereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

SECTION 12. Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the matters contemplated hereby, and there are no written or oral representations, warranties, understandings or agreements with respect hereto except as expressly set forth herein.

SECTION 13. Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.

SECTION 14. Confidentiality. Each of the Buyer, the Seller and the Escrow Agent hereby agrees, without the prior written consent of the others, to not disclose, and to otherwise keep confidential, the sale of the Warrant Shares or the other matters contemplated hereby, except to the extent that disclosure thereof is required to effectuate the transfer as contemplated herein or by applicable law, rule or regulation or if necessary to enforce any rights hereunder; provided, however, that the Buyer and the Seller may disclose information regarding such sale to their respective accountants and attorneys.

SECTION 15. Governing Law; Consent to Jurisdiction and Service Process. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof. The parties hereto hereby irrevocably agree that any suit or proceeding arising directly and/or indirectly pursuant to or under this Agreement, shall be brought solely in a federal or state court located in the Borough of Manhattan, State of New York. By their execution hereof, the parties hereby covenant and irrevocably submit to the in personam jurisdiction of any such court and agree that any process in any such action may be served upon any of them personally, or by registered mail, return receipt requested, or by nationally recognized overnight courier service, with the same force and effect as if personally served upon them in New York. The parties hereto waive any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense of lack of in personam jurisdiction with respect thereto.

SECTION 16. Escrow Provisions. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act it may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s legal counsel shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.

interest on the part of the Escrow Agent. The Seller and the Buyer understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Agreement.

16.6 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the other escrow property held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion, (1) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the other escrow property until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings, or (2) to deliver the escrow property and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York, in accordance with the applicable procedure therefore.

[Signature Page Follows]

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

	MCGUIREWOODS LLP


	By:	/s/ Louis W. Zehil
	Name:		Louis W. Zehil, Esq.
	Title:		Partner
	Facsimile:		(212) 548-2175


	NOMURA CREDIT & CAPITAL, INC.


	By:	/s/ Robert Leifer
	Name:		Robert Leifer
	Title:		Director
	Facsimile:		646-587-9437


Harbor Drive Special Situations Master Fund LTD.


	By:	/s/ Robert P. Lee
	Name:		Robert P. Lee
	Title:
	Facsimile:		(203) 569-6948

EX-99.5 4 a07-2154_1ex99d5.htm EX-99.5

EXHIBIT 99.5

AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT

This Amended and Restated Securities Purchase Agreement (the “Agreement”), dated as of January 25, 2007, is by and among Nomura Credit & Capital, Inc. (the “Seller”), and Perry Partners LP, Perry Partners International Inc., Perry Commitment Fund LP, and Perry Commitment Master Fund LP (collectively, the “Buyer”) and McGuireWoods LLP (the “Escrow Agent”).

W I T N E S S E T H:

WHEREAS, the Seller holds a warrant (the “Warrant”) exercisable for 5,095,004 shares of Common Stock of MRU Holdings, Inc. a Delaware corporation (the “Company”) at an exercise price of $3.50 (the “Exercise Price”) per Warrant Share (as defined below);

WHEREAS, on January 10, 2007 the parties hereto executed that certain Securities Purchase Agreement, and now wish to amend and restate that Securities Purchase Agreement in its entirety;

WHEREAS, the parties hereto desire that the Seller sell, transfer, convey and assign to the Buyer, and the Buyer purchase and acquire from the Seller, 1,800,000 shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) underlying the Warrant (the “Warrant Shares”).

SECTION 1. Sale and Purchase of Common Stock; Closing.

1.1 Sale and Purchase of Warrant Shares. Subject to the terms and conditions of this Agreement, the Seller shall sell, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the Warrant Shares for and in consideration of the sum of Nine Million Five Hundred Forty Thousand Dollars ($9,540,000), payable as set forth in Section 1.2 hereof.

1.2 Closing: Escrow Arrangement. On the second business day after the Buyer has been notified that the Registration Statement on Form S-3 of the Company filed with the Securities and Exchange Commission on November 9, 2006, as amended (the “Registration Statement”) has been declared effective by the Securities and Exchange

Commission (such date, the “Notice Date”), the Buyer, Seller and Escrow Agent hereby agree that the Buyer will be obligated to deposit Nine Million Five Hundred Forty Thousand Dollars ($9,540,000) (the “Purchase Amount”) with the Escrow Agent for delivery to the Seller against receipt by the Escrow Agent of the Warrant together with a duly executed Subscription Form (attached to the Warrant as Annex A) indicating that 1,800,000 Warrant Shares be issued in the name of the Buyer (to such of the Buyer entities and in such amounts as is set forth on Schedule A hereto) and delivered to the Escrow Agent. The Buyer agrees to deliver the Purchase Amount to the Escrow Agent within two business days after the Notice Date, and the Seller agrees, within one business day after receipt of notification from the Escrow Agent of the Escrow Agent’s receipt of the Purchase Amount, to deliver, via overnight courier, to the Escrow Agent a duly executed Subscription Form indicating that 1,800,000 Warrant Shares be issued in the name of the Buyer and delivered to the Escrow Agent, which Warrant and executed Subscription Form the Escrow Agent shall promptly deliver to the Company. Upon receipt from the Company’s transfer agent of 1,800,000 Warrant Shares issued in the name of the Buyer (as set forth on Schedule A hereto) and the other documentation required to be delivered to the Escrow Agent hereunder, the Escrow Agent shall deliver (a) to the Seller, (i) by wire transfer in immediately available funds to the account designated by the Seller in writing to the Escrow Agent, Three Million Two Hundred Forty Thousand Dollars ($3,240,000), an amount representing the Purchase Amount minus the product of the Exercise Price multiplied by the 1,800,000 Warrant Shares, and (ii) a new warrant, pursuant to Section 2.1(d) of the Warrant, having terms and conditions that are in substance identical to the original Warrant (the “New Warrant”) duly executed by the Company in the name of the Seller exercisable for a number of shares of Common Stock equal to the difference between the number of shares underlying the Warrant and the 1,800,000 Warrant Shares sold hereunder (b) to the Buyer, the 1,800,000 Warrant Shares, and (c) to the Company, by wire transfer in immediately available funds to the account designated by the Company in writing to the Escrow Agent, Six Million Three Hundred Thousand Dollars ($6,300,000), an amount representing the product of the Exercise Price multiplied by the 1,800,000 Warrant Shares. If the Registration Statement has not been declared effective by the Securities and Exchange Commission by February 28, 2007, either of the Buyer or the Seller shall have the right to terminate all obligations of the Buyer and the Seller pursuant to this Agreement.

1.3 Escrow Agent Opinion. The Escrow Agent as counsel to the Company agrees to deliver, on the date that the New Warrant is delivered to the Seller and the Warrant Shares are delivered to the Buyer, its opinion, addressed to the Buyer and the Seller, that the sale and issuance of the Warrant Shares is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Act”). The Seller and the Buyer each hereby acknowledges and agrees that the Escrow Agent will be relying upon the representations and warranties made by it herein as if made directly to the Escrow Agent.

the Buyer as named selling stockholder in the Registration Statement and related prospectus, and any other registration statement or prospectus covering all of the Warrant Shares purchased by the Buyer hereunder filed with the Securities and Exchange Commission.

SECTION 2. Representations and Warranties of the Buyer. The Buyer represents and warrants to the Seller, as of the date hereof, as follows:

2.1 Organization; Authority. The Buyer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, with full right, power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Buyer of the documents and transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Buyer. This Agreement, when executed and delivered by the Buyer, will constitute a valid and legally binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.

2.4 Buyer Status. At the time the Buyer was offered the Warrant Shares it was, and at the date hereof it is, an “accredited investor” as that term is defined in Rule 501(a) under the Act. The Buyer is not, and is not required to be, registered as a broker-dealer under Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

2.5 Restrictions on Transfer. The Buyer understands that (a) the Warrant Shares have not been registered under the Act or the laws of any state, (b) the Warrant Shares

will be “restricted securities” as said term is defined in Rule 144 of the Rules and Regulations promulgated under the Act, (c) the Warrant Shares may not be sold, pledged or otherwise transferred unless a registration statement for such transaction is effective under the Act and any applicable state laws, or unless an exemption from such registration provisions are available with respect to such transaction, and (d) the certificates for Warrant Shares will bear a legend to the effect that the transfer of the Warrant Shares is subject to the aforestated and a transfer request must, if required by the Company, be accompanied by an opinion of legal counsel satisfactory to the Company that such transfer is exempt from registration under the Act, and (e) “stop transfer” instructions will be placed against the Warrant Shares until such time as the Registration Statement has been declared effective.

SECTION 3. Representations and Warranties of the Seller. The Seller represents and warrants to the Buyer, as of the date hereof, as follows:

this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Seller of the documents and transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Seller. This Agreement, when executed and delivered by the Seller, will constitute a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.

3.2 Title to the Warrant. The Seller is the lawful owner of the portion of the Warrant exercisable for the Warrant Shares with good and marketable title thereto, and the Seller has the absolute right to sell, assign, convey, transfer and deliver the Warrant Shares, and any and all rights and benefits incident to the ownership thereof, all of which rights and benefits are being transferred by the Seller to the Buyer free and clear of all the following (collectively called “Claims”) of any nature whatsoever: security interests, liens, pledges, claims (pending or threatened), charges, escrows, encumbrances, lock-up arrangements, options, rights of first offer or refusal, community property rights, mortgages, indentures, security agreements or other agreements, arrangements, contracts, commitments, understandings or obligations, whether written or oral and whether or not relating in any way to credit or the borrowing of money. Delivery to the Buyer of the Warrant Shares will (i) pass good and marketable title to the Warrant Shares to the Buyer, free and clear of all Claims (assuming that the Buyer is a bona fide purchaser within the meaning of the New York Uniform Commercial Code), and (ii) convey, free and clear of all Claims, any and all rights and benefits incident to the ownership of such Warrant Shares.

3.3 Original Acquisition; No General Solicitation. The Warrant was originally acquired by the Seller on February 4, 2005 for investment and for its own account and not with a view to, or for sale in connection with, any distribution, resale or public offering of such Warrant or any part thereof in violation of the Act. The Seller did not offer or sell the Warrant to the Buyer by any form of General Solicitation.

3.5 No Litigation. There is no action, suit, proceeding, judgment, claim or investigation pending or, to the knowledge of the Seller, threatened against the Seller which

could reasonably be expected in any manner to challenge or seek to prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement.

SECTION 4. Survival of Representations and Warranties; Etc. All representations and warranties of the Buyer and the Seller shall survive the closing hereunder. The Seller may rely upon this Agreement for the purpose of assuring its compliance with federal securities law.

SECTION 5. Indemnification. Each party hereto shall indemnify and hold harmless the other party and the Escrow Agent (and their respective affiliates, directors, officers, employees, successors and assigns) from and against any and all losses, claims, damages, liabilities and expenses based upon, arising out of or otherwise in respect of, any inaccuracy in, or any breach of, the representations or warranties of such party or the covenants or agreements made by such party in this Agreement.

SECTION 6. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or to the recipient’s offices by a recognized overnight courier service or sent by facsimile (upon confirmation of receipt) addressed to the party to be notified at such party’s mailing address or facsimile number as set forth below:

Escrow Agent

McGuireWoods LLP

1345 Avenue of the Americas, 7^th Floor

New York, NY 10105

Attn: Louis W. Zehil, Esq.

Facsimile: (212) 548-2175

Seller

Nomura Credit & Capital, Inc.

2 World Financial Center, 21^st Floor

New York, NY 10281

Attn: Robert Leifer

Facsimile: (646) 587-9437

with a copy to (which shall not constitute notice):

Sidley Austin LLP

One S. Dearborn St.

Chicago, IL 60603

Attn: John P. Kelsh

Facsimile: (312) 853-7036

Buyer

c/o Perry Capital, L.L.C.

767 Fifth Avenue

19^th Floor

New York, NY 10153

Attn: Michael C. Neus, General Counsel

Facsimile: (212) 583-4146

with a copy to (which shall not constitute notice):

c/o Perry Capital, L.L.C.

767 Fifth Avenue

19^th Floor

New York, NY 10153

Attn: Ori Uziel

Facsimile: (646) 758 3071

SECTION 7. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of each of the parties hereto and any successors to the businesses of the Buyer or the Seller and the successors to the business of the Buyer and the legal representatives of the Seller. Neither the Buyer nor the Seller may assign its or his rights or obligations hereunder except to persons described in the preceding sentence.

SECTION 8. Expenses. Each party hereto shall pay the fees and expenses of any broker engaged by such party and of such party’s advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement, and shall hold the other party hereto harmless against any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim for such fees and expenses; provided, however, that the Seller shall pay any transfer, stamp or similar taxes, if any, that are payable in connection with the execution and delivery of this

Agreement and the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, neither party has used the services of a broker or finder in connection with the transaction contemplated hereby.

SECTION 9. Execution Counterparts. This Agreement may be executed and delivered via facsimile in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

SECTION 10. Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired hereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

SECTION 11. Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the matters contemplated hereby and supersedes all prior agreements and understanding of the parties hereto with respect to the matters contemplated hereby, including that certain Securities Purchase Agreement dated January 10, 2007 entered into by and among the parties hereto, and there are no written or oral representations, warranties, understandings or agreements with respect hereto except as expressly set forth herein.

SECTION 12. Amendments; Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.

SECTION 13. Confidentiality. Each of the Buyer and the Seller hereby agrees, without the prior written consent of the other, to not disclose, and to otherwise keep confidential, the sale of the Warrant Shares or the other matters contemplated hereby, except to the extent that disclosure thereof is required to effectuate the transfer as contemplated herein or by applicable law, rule or regulation; provided, however, that the Buyer and the Seller may disclose information regarding such sale to their respective accountants and attorneys.

SECTION 14. Governing Law; Consent to Jurisdiction and Service Process. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof. The parties hereto hereby irrevocably agree that any suit or proceeding arising directly and/or indirectly pursuant to or under this Agreement, shall be brought solely in a federal or state court located in the Borough of Manhattan, State of New York. By their execution hereof, the parties hereby covenant and irrevocably submit to the in personam jurisdiction of any such court and agree that any process in any such action may be served upon any of them personally, or by registered mail, return receipt requested, or by nationally recognized overnight courier service, with the same force and effect as if personally served upon them in New York. The

parties hereto waive any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense of lack of in personam jurisdiction with respect thereto.

SECTION 15. Escrow Provisions. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by the Escrow Agent to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall not be personally liable for any act it may do or omit to do hereunder as the Escrow Agent while acting in good faith and in the absence of gross negligence, fraud or willful misconduct, and any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow Agent’s legal counsel shall be conclusive evidence of such good faith, in the absence of gross negligence, fraud or willful misconduct.

15.1 The Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law and is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case the Escrow Agent obeys or complies with any such order, judgment or decree, the Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.

15.2 The Escrow Agent shall not be liable in any respect on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for thereunder in the absence of gross negligence, fraud or willful misconduct.

15.3 The Escrow Agent shall be entitled to employ such legal counsel and other experts as the Escrow Agent may deem necessary to advise the Escrow Agent in connection with the Escrow Agent’s duties hereunder, may rely upon the advice of such counsel. The Escrow Agent has acted as legal counsel for the Company, and may continue to act as legal counsel for Company from time to time, notwithstanding its duties as the Escrow Agent hereunder. The Seller and the Buyer consent to the Escrow Agent acting in such capacity as legal counsel for the Company, including in connection with any dispute arising under this Agreement, and waive any claim that such representation represents a conflict of interest on the part of the Escrow Agent. The Seller and the Buyer understand that the Escrow Agent is relying explicitly on the foregoing provision in entering into this Agreement.

15.4 The Escrow Agent’s responsibilities hereunder shall terminate if the Escrow Agent shall resign by giving written notice to the Seller and the Buyer. In the event of any such resignation, the Buyer and the Seller shall appoint a successor the Escrow Agent and the Escrow Agent shall deliver to such successor Escrow Agent any escrow property and other documents held by the Escrow Agent.

15.5 If the Escrow Agent reasonably requires other or further instruments in connection with this Agreement or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.

15.6 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the documents or the other escrow property held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed in the Escrow Agent’s sole discretion, (1) to retain in the Escrow Agent’s possession without liability to anyone all or any part of said documents or the other escrow property until such disputes shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings, or (2) to deliver the escrow property and any other property and documents held by the Escrow Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York, in accordance with the applicable procedure therefore.

15.7 The Seller and the Buyer agree severally to indemnify and hold harmless the Escrow Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance as the Escrow Agent hereunder other than any such claim, liability, cost or expense to the extent the same shall have resulted from the gross negligence, fraud or willful misconduct of the Escrow Agent.

SECTION 16. Buyer’s Obligations. Each of the entities that constitutes the Buyer (Perry Partners LP, Perry Partners International Inc., Perry Commitment Fund LP, and Perry Commitment Master Fund LP) shall be jointly and severally liable for the payment of the Purchase Price and the performance of all obligations of the Buyer under this Agreement.

[Signature Page to Follow]

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

MCGUIREWOODS LLP


By:	/s/ Louis W. Zehil
Name:			Louis W. Zehil, Esq.
Title:			Partner
Facsimile:			212 548-2175


NOMURA CREDIT & CAPITAL, INC.


By:	/s/ Robert Leifer
Name:		Robert Leifer
Title:		Director


PERRY PARTNERS L.P.

By: Perry Corp., General Partner of Perry Partners L.P.

By:	/s/ Michael Neus
		Michael Neus, General Counsel


PERRY COMMITMENT FUND L.P.

By: Perry Commitment Associates L.L.C., General Partner of Perry Commitment Fund L.P.

By: Perry Corp., Managing Member of Perry Commitment Associates L.L.C

By:	/s/ Michael Neus
		Michael Neus, General Counsel

PERRY COMMITMENT MASTER FUND L.P.

By: Perry Commitment International Associates L.L.C., General Partner of Perry Commitment Master Fund L.P.

By: Perry Corp., Managing Member of Perry Commitment International Associates L.L.C

By:	/s/ Michael Neus
		Michael Neus, General Counsel


PERRY PARTNERS INTERNATIONAL INC.

By: Perry Corp., Investment Manager of Perry Partners International Inc.

By:	/s/ Michael Neus
			Michael Neus, General Counsel

Schedule A

Breakdown of Stock Issuance to the Buyer

Entity Name		No. Shares
Perry Partners LP		480,889
Perry Partners International Inc.		1,051,092
Perry Commitment Fund LP		77,136
Perry Commitment Master Fund LP		190,883
TOTAL		1,800,000

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INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

Under the Securities Exchange Act of 1934 (Amendment No. 3)(1)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)

Under the Securities Exchange Act of 1934
(Amendment No. 3)(1)