UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Greektown Superholdings, Inc.
(Name of Issuer)
Preferred Stock, par value $0.01 per share
(Title of Class of Securities)
392485207
(CUSIP Number)
Athens Acquisition LLC
Attention: Matthew Cullen
1086 Woodward Avenue
Detroit, Michigan 48226
(313) 373-3700
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
N/A
(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-l(e), 240.13d-l(f) or 240.13d-l(g), check the following box. ¨
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.
* | The remainder of this cover page shall be filled out for a reporting persons 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, as amended (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. 392485207 |
1. |
Names of Reporting Persons.
Athens Acquisition LLC 46-1560955 | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
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3. | SEC Use Only
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4. | Source of Funds (See Instructions)
WC | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
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6. | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With
|
7. | Sole Voting Power
80,000 | ||||
8. | Shared Voting Power
0 | |||||
9. | Sole Dispositive Power
80,000 | |||||
10. | Shared Dispositive Power
0 | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
80,000 | |||||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) x
| |||||
13. | Percent of Class Represented by Amount in Row (11)
4.9% (1) | |||||
14. | Type of Reporting Person (See Instructions)
OO |
(1) | Based upon 1,625,790 shares of Preferred Stock of the Issuer outstanding as of September 30, 2012 as disclosed in the Form 10-Q filed on November 13, 2012 by the Issuer with the U.S. Securities and Exchange Commission. Subject to regulatory approval as provided in the Issuers Certificate of Incorporation, the Issuers Preferred Stock is convertible into shares of the Issuers Common Stock. |
CUSIP No. 392485207 |
1. |
Names of Reporting Persons.
Daniel Gilbert | |||||
2. | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
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3. | SEC Use Only
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4. | Source of Funds (See Instructions)
PF | |||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6. | Citizenship or Place of Organization
United States of America | |||||
Number of Shares Beneficially Owned by Each Reporting Person With
|
7. | Sole Voting Power
80,000 | ||||
8. | Shared Voting Power
0 | |||||
9. | Sole Dispositive Power
80,000 | |||||
10. | Shared Dispositive Power
0 | |||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
80,000 | |||||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) x
| |||||
13. | Percent of Class Represented by Amount in Row (11)
4.9% (1) | |||||
14. | Type of Reporting Person (See Instructions)
IN |
(1) | Based upon 1,625,790 shares of Preferred Stock of the Issuer outstanding as of September 30, 2012 as disclosed in the Form 10-Q filed on November 13, 2012 by the Issuer with the U.S. Securities and Exchange Commission. Subject to regulatory approval as provided in the Issuers Certificate of Incorporation, the Issuers Preferred Stock is convertible into shares of the Issuers Common Stock. |
EXPLANATORY NOTE
This statement on Schedule 13D (this Schedule 13D) has been filed on a voluntary basis. Athens Acquisition LLC, a Delaware limited liability company (Athens Acquisition), and Daniel Gilbert (Mr. Gilbert) disclaim current beneficial ownership of any securities of Greektown Superholdings, Inc. (the Issuer) except as provided on the cover pages of this Schedule 13D. As used in this Schedule 13D, the terms beneficial ownership, beneficially own and other derivations thereof shall mean beneficial ownership as set forth in Section 13(d) of the Securities Exchange Act of 1934 (the Exchange Act) and the rules and regulations thereunder.
Item 1. Security and Issuer.
This Schedule 13D relates to shares of Preferred Stock, par value $0.01 per share, of the Issuer. The principal executive office of the Issuer is located at 555 East Lafayette, Detroit, Michigan, 48226.
Item 2. Identity and Background.
This Schedule 13D is being jointly filed by and on behalf of each of Athens Acquisition and Mr. Gilbert. Athens Acquisition and Mr. Gilbert are collectively referred to herein as the Reporting Persons. The principal place of business of Athens Acquisition is 1086 Woodward Avenue, Detroit, Michigan 48226. Mr. Gilberts principal business address is 1050 Woodward Avenue, Detroit, Michigan 48226.
The principal business of Athens Acquisition is to invest in the equity securities of the Issuer. Mr. Gilbert currently serves as Chairman of Rock Ventures LLC. As the sole member of Athens Acquisition, Mr. Gilbert may be deemed to be the indirect beneficial owner of any securities beneficially owned by Athens Acquisition.
During the last five years, none of the Reporting Persons have been convicted in a criminal proceeding or been a party to a civil proceeding, in either case of the type specified in Items 2(d) or 2(e) of Schedule 13D.
Mr. Gilbert is a citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
On June 15, 2012, the Reporting Persons acquired 80,000 shares of Series A-1 Convertible Preferred Stock of the Issuer (the Preferred Shares or the OTC Preferred Shares), in an over-the-counter market transaction (the June 15 Transaction), for an aggregate purchase price of $5,760,000. The source of funds for the purchase of the Preferred Shares was the working capital of Athens Acquisition.
On December 20, 2012, Athens Acquisition and certain funds affiliated with Manulife Asset Management (US) LLC entered into a Securities Purchase Agreement (the Manulife Agreement or the December 20 Agreement), pursuant to which Athens Acquisition agreed to purchase the following securities of the Issuer: 42,220 shares of Series A-1 Common Stock; 623,406 shares of Series A-1 Preferred Stock and warrants to acquire 202,511 shares of Series A-1 Preferred Stock (collectively, the Manulife Shares). The aggregate purchase price for the Manulife Shares is $78,132,330, or $90 per Manulife Share. The source of funds for the purchase of the Manulife Shares is expected to be the working capital of Athens Acquisition.
On January 25, 2013, Athens Acquisition and certain funds affiliated with OppenheimerFunds Inc. entered into a Securities Purchase Agreement (the Oppenheimer Agreement or the January 25 Agreement), pursuant to which Athens Acquisition agreed to purchase the following securities of the Issuer: 15,741 shares of Series A-1 Common Stock and 128,030 shares of Series A-1 Preferred Stock (collectively, the Oppenheimer Shares). The aggregate purchase price for the Oppenheimer Shares is $12,939,390, or $90 per Oppenheimer Share. The source of funds for the purchase of the Oppenheimer Shares is expected to be the working capital of Athens Acquisition.
On January 31, 2013, Athens Acquisition and certain funds affiliated with Solus Alternative Asset Management LP (collectively, the Solus Sellers) entered into a Securities Purchase Agreement (the Solus Agreement or the January 31 Agreement), pursuant to which Athens Acquisition agreed to purchase the following securities of the Issuer: 33,127 shares of Series A-1 Common Stock; 291,000 shares of Series A-1 Preferred Stock; 40,579 shares of Series A-2 Preferred Stock and warrants to acquire 186,657 shares of Series A-2 Preferred Stock (collectively, the Solus Shares). The aggregate purchase price for the Solus Shares is $49,622,670, or $90 per Solus Share. The source of funds for the purchase of the Solus Shares is expected to be the working capital of Athens Acquisition.
Consummation of the transactions contemplated by the Manulife Agreement, the Oppenheimer Agreement and the Solus Agreement are subject to material contingencies outside the Reporting Persons control including, but not limited to, approval by the Michigan Gaming Control Board (the MGCB). Upon satisfaction of current material contingencies outside the Reporting Persons control, the Reporting Persons may be deemed to have beneficial ownership representing 76.8% of the voting power of all securities of the Issuer.
The Manulife Agreement, the Oppenheimer Agreement and the Solus Agreement are sometimes collectively referred to below as the Three Agreements and are filed herewith as Exhibits 99.2, 99.3 and 99.4 attached hereto, respectively, and are hereby incorporated by reference.
Item 4. Purpose of Transaction.
The information set forth in Item 3 hereof is hereby incorporated herein by reference.
The Reporting Persons initially acquired the OTC Preferred Shares in the June 15 Transaction for investment purposes. The Reporting Persons have entered into the December 20 Agreement, the January 25 Agreement and the January 31 Agreement for the purpose of acquiring control of the Issuer. As noted in Item 3 above, the transactions contemplated by the December 20 Agreement, the January 25 Agreement and the January 31 Agreement have not been consummated and are subject to material conditions outside of the control of the Reporting Persons. Accordingly, the Reporting Persons disclaim beneficial ownership of the securities which are the subject of such agreements. Upon consummation of the purchase contemplated by the December 20 Agreement, the Reporting Persons will have beneficial ownership of a total of 50.8% of the voting power of the Issuer. Upon simultaneous or subsequent consummation of the purchase contemplated by the January 25 Agreement, the Reporting Persons will have beneficial ownership of a total of 58.4% of the voting power of the Issuer. And, upon simultaneous or subsequent consummation of the purchase contemplated by the January 31 Agreement, the Reporting Persons will have beneficial ownership of a total of 76.8% of the voting power of the Issuer. The closing of the purchase transactions contemplated by the Three Agreements are not contingent upon one another.
In connection with the Reporting Persons intent to acquire control of the Issuer, on January 16, 2013, as previously disclosed by the Issuer, the Reporting Persons sent to the Issuer a letter with respect to the potential acquisition of the capital stock of the Issuer not owned by the Reporting Persons for a price of $81 per share. The Issuer responded with a letter dated January 28, 2013, and the Reporting Persons, by letter dated January 29, 2013, withdrew the proposal set forth in the January 16, 2013 letter. Copies of the January 16, 2013 letter, the January 28, 2013 letter and the January 29, 2013 letter are attached hereto as Exhibits 99.5, 99.6 and 99.7, respectively, and are hereby incorporated by reference. Although Athens Acquisition withdrew its January 16 letter, Athens Acquisition plans to control the Issuer through the above acquisition agreements.
In addition, on February 7, 2013, Athens Acquisition separately offered to acquire the shares of capital stock of the Issuer held by two additional shareholder groups, at a purchase price of $90 per share in cash, in each case subject to regulatory approval (the Additional Acquisitions). In addition, Athens Acquisition plans to discuss the situation with the Special Committee of the Board of Directors of the Issuer.
In connection with the Reporting Persons intention to acquire control of the Issuer, and the voting control that will be conferred upon the Reporting Persons pursuant to the Three Agreements (subject to regulatory approval), the Reporting Persons seek the cooperation of the Board of Directors and the Special Committee of the Issuer so that valuable time and resources are not wasted in connection with the Reporting Persons acquiring control of the Issuer, something that the Reporting Persons are confident will occur in due course upon achieving regulatory approval. In this connection, the Reporting Persons have significant concerns regarding the Issuers adoption of a poison pill Shareholder Rights Plan, previously announced by the Issuer on December 31, 2012, and as to which the Issuer announced on January 16, 2013 that the distribution/payment date thereunder would be postponed pending approval of the MGCB. The Reporting Persons have significant concerns as to the propriety of the adoption by the Board of Directors of the Issuer of such poison pill without MGCB approval.
In the event Athens Acquisition obtains approval of the MGCB to obtain voting control over the Issuer, Athens Acquisition currently intends to act by the written consent process or otherwise to elect a number of persons who will constitute a majority of the Issuers Board of Directors, subject to all applicable MGCB approvals.
Although the Reporting Persons are fully committed to pursuing the acquisition of the Issuer, the Reporting Persons reserve their right to, from time to time, review their investment in the Issuer on the basis of various factors, including the Issuers business, financial condition, results of operations and prospects, general economic and industry conditions, as well as other developments and other investment opportunities. Based upon such review, the Reporting Persons will take such actions in the future as the Reporting Persons may deem appropriate in light of the circumstances existing from time to time, which may include further acquisitions of shares of Preferred Stock of the Issuer. In addition, the Reporting Persons may engage in communications with one or more shareholders, officers or directors of the Issuer, including discussions regarding the Issuers operations and strategic direction and ideas that, if effected, could result in, the acquisition of the Issuer by Athens Acquisition and/or among other things: (a) the acquisition by the Reporting Persons of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) changes in the present board of directors or management of the Issuer; (e) a material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuers business or corporate structure; (g) changes in the Issuers certificate of incorporation or bylaws or other actions which may impede the acquisition of control of the Issuer by any person; (h) causing any class of the Issuers securities to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) any action similar to those enumerated above.
Except to the extent of the above matters, none of the Reporting Persons currently has any plans or proposals that relate to or would result in any of the actions specified in clause (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the right, based on all relevant factors and subject to applicable law, at any time and from time to time, to review or reconsider their position, change their purpose, take other actions (including actions that could involve one or more of the types of transactions or have one or more of the results described in paragraphs (a) through (j) of Item 4 of Schedule 13D) or formulate and implement plans or proposals with respect to any of the foregoing, at all times subject to MGCB approval, if applicable.
Item 5. Interest in Securities of the Issuer.
(a) The aggregate number and percentage of the class of securities identified pursuant to Item 1 beneficially owned by each Reporting Person is stated in Items 11 and 13 on the cover pages hereto.
(b) Athens Acquisition has the sole power to vote and dispose of the Preferred Shares. Mr. Gilbert, as the sole member of Athens Acquisition, has the sole power to direct the vote and disposition of the Preferred Shares.
(c) The transactions described in Item 3 are incorporated herein by reference.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
The descriptions of the Manulife Agreement, Oppenheimer Agreement and Solus Agreement, as set forth in Item 3, are incorporated herein by reference.
Except as otherwise described herein and in the Joint Filing Agreement furnished herewith and attached hereto as Exhibit 99.1, no Reporting Person has any contract, arrangement, understanding or relationship with any person with respect to the shares of Preferred Stock or any other securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
The following exhibits are filed as exhibits hereto:
Exhibit |
Description of Exhibit | |
99.1 | Joint Filing Agreement, dated February 8, 2013 | |
99.2 | Securities Purchase Agreement, dated December 20, 2012 | |
99.3 | Securities Purchase Agreement, dated January 25, 2013 | |
99.4 | Securities Purchase Agreement, dated January 31, 2013 | |
99.5 | Letter, dated January 16, 2013 | |
99.6 | Letter, dated January 28, 2013 | |
99.7 | Letter, dated January 29, 2013 |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: February 8, 2013 |
ATHENS ACQUISITION LLC | |||||
By: | /s/ Daniel Gilbert | |||||
Name: | Daniel Gilbert | |||||
Title: | Chief Executive Officer | |||||
/s/ Daniel Gilbert | ||||||
DANIEL GILBERT |
EXHIBIT INDEX
Exhibit |
Description of Exhibit | |
99.1 | Joint Filing Agreement, dated February 8, 2013 | |
99.2 | Securities Purchase Agreement, dated December 20, 2012 | |
99.3 | Securities Purchase Agreement, dated January 25, 2013 | |
99.4 | Securities Purchase Agreement, dated January 31, 2013 | |
99.5 | Letter, dated January 16, 2013 | |
99.6 | Letter, dated January 28, 2013 | |
99.7 | Letter, dated January 29, 2013 |
Exhibit 99.1
Joint Filing Agreement
In consideration of the mutual covenants herein contained, pursuant to Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, each of the parties hereto agrees with the other parties as follows:
Each party represents to the other party that it is eligible to file a statement or statements on Schedule 13D pertaining to the Preferred Stock, par value $0.01 per share, of Greektown Superholdings, Inc., a Delaware corporation, to which this Joint Reporting Agreement is an exhibit, for filing of the information contained herein.
Each party is responsible for the timely filing of his, her or its own statement and any amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein. No party is responsible for the completeness or accuracy of the information concerning any other party making the filing, unless such party knows or has reason to believe that such information is inaccurate.
Each party agrees that such statement is being filed by and on behalf of each of the parties identified herein, and that any amendment thereto will be filed on behalf of each such party.
This Joint Reporting Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument, but all of such counterparts together shall constitute but one agreement.
Date: February 8, 2013 |
ATHENS ACQUISITION LLC | |||||
By: | /s/ Daniel Gilbert | |||||
Name: | Daniel Gilbert | |||||
Title: | Chief Executive Officer | |||||
/s/ Daniel Gilbert | ||||||
DANIEL GILBERT |
Exhibit 99.2
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this Agreement) is made as of December 20, 2012, by and among Athens Acquisition LLC, a Delaware limited liability company (Buyer), and each of the other undersigned parties (the Sellers and individually each a Seller).
WHEREAS, the Sellers collectively own the following equity securities issued by Greektown Superholdings, Inc., a Delaware corporation (the Company): 42,220 shares of Series A-1 Common Stock (collectively, the Common Shares) 623,406 shares of Series A-1 Preferred Stock (collectively, the Preferred Shares) and warrants to acquire 202,511 shares of Series A-1 Preferred Stock (collectively, the Warrants and with the Common Shares and Preferred Shares, the Purchased Securities); and
WHEREAS, each Seller desires to sell to Buyer, and Buyer desires to buy from each Seller, all of the outstanding equity interests of the Company owned by such Seller for the consideration and subject to the terms and conditions of this Agreement.
The parties agree as follows:
1. | PURCHASE AND SALE. |
1.1 | Purchase and Sale of Stock. |
Upon and subject to the terms and conditions set forth in this Agreement, Buyer shall purchase from each Seller, and each Seller shall sell, assign, transfer, convey and deliver to Buyer, the Purchased Securities (free and clear of all Liens) as set forth on Schedule 1.1.
1.2 | Purchase Price. |
The aggregate purchase price for the Purchased Securities is $78,132,330 (the Purchase Price), to be allocated as set forth on Schedule 1.2.
2. | CLOSING. |
2.1 | Closing Date. |
The closing of the Closing Transactions (the Closing) will occur at the offices of Honigman Miller Schwartz and Cohn LLP, 2290 First National Building, 660 Woodward Avenue, Detroit, Michigan 48226, or by electronic transmission, as agreed upon by Buyer and Manulife Asset Management (US) LLC (the Sellers Representative) at 10:00 a.m. (Eastern Time) on a date within seven days following the satisfaction of all conditions precedent specified in Section 5.
2.2 | Closing Transactions. |
At the Closing, the Sellers and Buyer will simultaneously consummate the following transactions (collectively, the Closing Transactions): (i) the Sellers will deliver the Purchased Securities to Buyer by means of a DWAC transaction to be credited to Buyers account and (ii) Buyer will deliver the Purchase Price to the Sellers Representative in cash or other immediately available funds.
3. | REPRESENTATIONS AND WARRANTIES OF THE SELLERS. |
As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereunder, each Seller, jointly and severally, makes the representations and warranties set forth in this Section 3 as follows:
3.1 | Organization. |
Each Seller is duly organized, validly existing and in good standing (or having comparable active status) under the laws of the jurisdiction of its formation.
3.2 | Authority; Binding Obligation. |
Each Seller has the requisite power and authority to enter into this Agreement, to carry out such Sellers obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery by each Seller of this Agreement, the performance by each Seller of its obligations hereunder, and the consummation by each Seller of the transactions contemplated hereby have been duly authorized by all requisite action on the part of such Seller. This Agreement has been duly executed and delivered by each Seller and constitutes the legal, valid and binding obligations of each Seller enforceable against each Seller in accordance with its terms.
3.3 | Absence of Conflicts. |
Neither the execution, delivery or performance of this Agreement, nor the consummation by any Seller of the transactions contemplated hereby:
(a) does or will (i) result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under or (v) result in the creation of any Lien upon any assets of such Seller, in each case under the provisions of the charter documents of such Seller or any indenture, license, mortgage, loan agreement or other agreement, instrument or contract or any legal requirement by which such Seller or any of its assets is bound; or
(b) except with regard to requisite governmental and regulatory approvals, and without limiting clause (a) above, require any consent, approval, or authorization of any Person.
3.4 | Securities. |
Such Seller holds of record and owns beneficially the number of Purchased Securities set forth next to its name on Schedule 1.1, free and clear of any restrictions on transfer or Liens, and owns no other Equity Security of the Company. The Common Shares and Preferred Shares are, and the shares of Series A-1 Preferred Stock issued upon due exercise of the Warrants will be, validly issued, fully paid and nonassessable. None of the Purchased Securities were issued in violation of any preemptive rights. Such Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require such Seller to sell, transfer or otherwise dispose of any Equity Security of the Company (other than this Agreement). Such Seller is not a party to any voting trust, proxy, or other contract or understanding with respect to the voting of any Equity Security of the Company.
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3.5 | Brokers. |
No Seller nor any representatives or affiliates of any Seller, has incurred (or will incur) any obligation or liability, contingent or otherwise, for any brokerage or finders fee or agents commission or other similar payment in connection with this Agreement or the transactions contemplated hereunder.
4. | REPRESENTATIONS AND WARRANTIES OF BUYER |
As a material inducement to the Sellers to enter into this Agreement and to consummate the transactions contemplated hereunder Buyer makes the representations and warranties set forth in this Section 4 with respect to itself as follows:
4.1 | Organization. |
Buyer is a limited liability company which is validly existing and in good standing under the laws of the State of Delaware.
4.2 | Authority; Binding Obligation. |
Buyer has the requisite power and authority to enter into this Agreement, to carry out its obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder, and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with its terms.
4.3 | Absence of Conflicts. |
Neither the execution, delivery or performance of this Agreement, nor the consummation by Buyer of the transactions contemplated hereby:
(a) does or will (i) result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under or (v) result in the creation of any Lien upon any assets of Buyer, in each case under the provisions of the charter documents of Buyer or any indenture, license, mortgage, loan agreement or other agreement, instrument or contract or any legal requirement by which such Seller or any of its assets is bound; or
(b) except with regard to requisite governmental and regulatory approvals, and without limiting clause (a) above, require any consent, approval, or authorization of any Person.
4.4 | Investment Intent. |
Buyer is acquiring the Purchased Securities for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable securities laws.
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5. | CONDITIONS PRECEDENT |
5.1 | Conditions Precedent to Buyers Obligations. |
The obligation of Buyer to consummate the Closing Transactions is subject to the fulfillment prior to or at the Closing of the following conditions:
(a) The Sellers representations and warranties contained in this Agreement shall be true and correct in all material respects at and as of the Closing.
(b) The Sellers will have performed and complied in all material respects with all the Sellers obligations under this Agreement.
(c) No Action or Proceeding before any Governmental Entity will be pending or threatened wherein an unfavorable judgment, decree, injunction or order would prevent the consummation of the Closing Transactions or result in any Closing Transaction being declared unlawful or rescinded, and no such judgment, injunction, decree or order will be in effect.
(d) Buyer shall have received all requisite governmental and regulatory approvals, including those from the Michigan Gaming Control Board.
(e) If required, any waiting period (and any extension thereof) under the HSR Act shall have expired or been terminated.
(f) The Sellers shall have delivered all of the Purchased Securities to Buyer.
5.2 | Conditions Precedent to the Sellers Obligation. |
The obligation of the Sellers to consummate the Closing Transactions is subject to fulfillment prior to or at the Closing of the following conditions:
(a) No Action or Proceeding before any Governmental Entity will be pending or threatened wherein an unfavorable judgment, decree, injunction or order would prevent the consummation of the Closing Transactions or result in any Closing Transaction being declared unlawful or rescinded, and no such judgment, injunction, decree or order will be in effect.
(b) The Sellers shall have received all requisite governmental and regulatory approvals, including those from the Michigan Gaming Control Board.
(c) Buyer shall have delivered the Purchase Price to the Sellers Representative.
6. | MISCELLANEOUS. |
6.1 | Indemnification. |
(a) All representations and warranties contained in this Agreement shall survive the consummation of the transactions contemplated hereunder indefinitely and shall be binding upon, and fully enforceable against the parties to this Agreement, and each of their respective successors and assigns.
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(b) Each of the Sellers shall, jointly and severally, indemnify, defend, and hold harmless Buyer and each of its affiliates, officers, employees, agents, and representatives from and against any Losses, costs, damages, or expenses arising from or relating to any Sellers breach of or failure to perform any representations, warranties, or covenants contained in this Agreement or any other agreement or document referred to herein.
(c) Buyer shall indemnify, defend and hold harmless each of the Sellers and each of their respective affiliates, officers, employees, agents, and representatives from and against any Losses, costs, damages or expenses arising from or relating to Buyers breach of or failure to perform any representations, warranties, or covenants contained in this Agreement or any other agreement or document referred to herein.
(d) Any payments made by any party pursuant to Section 6.1(b) or Section 6.1(c) shall be deemed adjustments to the Purchase Price for tax and other purposes.
6.2 | Confidentiality. |
(a) No Seller will make, or file, any public statement, report or press release disclosing this Agreement, its terms or the transactions contemplated hereunder; provided, however, a Seller may make such disclosure as, in the opinion of such Sellers legal counsel, is required by law, so long as (a) such Seller has reasonably consulted with Buyer with respect to the disclosure requirement and the content of such disclosure and (b) such Seller does not disclose any such information earlier than legally required.
(b) Buyer will not make, or file, any public statement, report or press release disclosing the pricing terms contained in this Agreement; provided, however, Buyer may make such disclosure as, in the opinion of Buyers legal counsel, is required by law, so long as (a) Buyer has reasonably consulted with the Sellers Representative with respect to the disclosure requirement and the content of such disclosure and (b) Buyer does not disclose any such information earlier than legally required.
(c) Buyer may make, or file, a public statement, report or press release disclosing this Agreement and the transaction contemplated hereunder, but omitting pricing terms, so long as Buyer has reasonably consulted with the Sellers Representative with respect to the content of such disclosure.
(d) The confidentiality obligations of the Sellers and Buyer under this Section 6.2 shall not apply to information that is or becomes generally available to the public, other than through disclosure in violation of this Section 6.2.
6.3 | Notices. |
Any notice or other communication required or which may be given under this Agreement shall be in writing sent by overnight courier to the addressee to the address provided below and shall be deemed given one day after such mailing.
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To any Seller:
Manulife Asset Management (US) LLC
101 Huntington Avenue; 7th Floor
Boston, Massachusetts 02199
Attention: Dennis McCafferty
To Buyer:
Athens Acquisition LLC
1086 Woodward Avenue
Detroit, Michigan 48226
Attn: Matthew Cullen
with a copy to (which shall not constitute notice to Buyer):
Honigman Miller Schwartz and Cohn LLP
2290 First National Building
660 Woodward Avenue
Detroit, Michigan 48226
Attn: Howard N. Luckoff
Any of the addresses set forth above may be changed for purposes of providing notice under this Agreement by giving notice to the other parties.
6.4 | Transfer Taxes. |
All transfer, documentary, sales, use, stamp, registration and other such taxes, if any, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement shall be paid by Buyer when due.
6.5 | Fees and Expenses. |
Each party shall bear its own out-of-pocket fees and expenses of any advisors, counsel and accountants, incurred by the party or on its behalf in connection with this Agreement and consummation of the Closing Transactions.
6.6 | Entire Agreement. |
This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way.
6.7 | Remedies. |
The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that the parties shall be entitled to injunctive relief to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or equity to which the parties may be entitled. Except as otherwise provided herein, all
6
remedies available under this Agreement, at law or otherwise, shall be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any party of a particular remedy shall not preclude the exercise of any other remedy.
6.8 | Governing Law and Forum. |
This Agreement (except where specifically provided otherwise) shall be governed by the laws of the State of Delaware (regardless of the laws that might otherwise govern under applicable principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect, performance and remedies. Each of the parties consents to be subject to personal jurisdiction of the federal and state courts located in Delaware, which shall be the sole and exclusive forums for the resolution of all disputes under, or relating to, this Agreement.
6.9 | Counterparts; Electronic Signatures. |
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A manual signature on this Agreement or other documents to be delivered pursuant to this Agreement or an image of which shall have been transmitted electronically, will constitute an original signature for all purposes. The delivery of copies of this Agreement or other documents to be delivered pursuant to this Agreement, including executed signature pages where required, by electronic transmission will constitute effective delivery of this Agreement or such other document for all purposes.
6.10 | Severability. |
If any provision of this Agreement is determined to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall have no effect on the other provisions of this Agreement, which shall remain valid, operative and enforceable. Upon any such determination that any term or other provision is illegal, invalid or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.
6.11 | Waiver and Amendments. |
This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No failure to exercise or delay in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights and remedies under this Agreement are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
6.12 | Assignment. |
Neither Buyer nor any Seller may assign any of its rights under this Agreement without the prior written consent of the other party, which may be withheld in such other partys sole discretion. Any attempted assignment in violation of the foregoing provision will be null and void.
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7. | DEFINITIONS. |
7.1 | Definitions. |
For purposes of this Agreement, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth herein:
Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.
Equity Security means (i) any capital stock or other equity security, (ii) any security directly or indirectly convertible into or exchangeable for any capital stock or other equity security, or (iii) any warrants, options or other rights, directly or indirectly, to subscribe for or to purchase any capital stock or other equity security.
Governmental Entity means any government, agency, governmental department, commission, court, arbitration panel or instrumentality of the United States of America or any foreign government or any state, municipality or other political subdivision in or of any of the foregoing and any court, agency, instrumentality, regulatory commission or other entity exercising executive, legislative, judicial, regulatory or administrative functions or pertaining to government.
HSR Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
Law means all federal, state, local and foreign laws, statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and the like of any governmental entity, including common law.
Lien means any charge, claim, community or other marital property interest, condition, equitable interest, lien (whether voluntary, involuntary, statutory, or other), option, pledge, hypothecation, preference, priority, security interest, mortgage, right-of-way, easement, encroachment, servitude, conditional sale or other title retention arrangement, security or other deposits, right of first option, right of first refusal, or restriction of any kind, including, without limitation, any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.
Losses means any loss, liability, obligation, demand, claim, Action, cause of action, damage, deficiency, tax, judgment, award, assessment, diminution in value, penalty, fine, cost or expense of whatever kind, in each case, whether or not arising out of third party claims (including interest, penalties, and reasonable professional fees).
Person means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any governmental entity or any similar entity.
Proceeding means any Action, suit, claim, demand, summons, citations or subpoena, hearing, audit, public meeting or inquiry of any kind or nature whatsoever, civil, criminal, administrative, regulatory or otherwise, at law or in equity, whether or not such matter is before a governmental entity or any other Person.
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IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement as of the date first set forth above.
Buyer | ||
Athens Acquisition LLC | ||
By: | /s/ Matthew Cullen | |
Name: | Matthew Cullen | |
Title: | President | |
Sellers | ||
John Hancock Bond Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock Income Securities Trust | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock Investors Trust | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock Funds III Leveraged Companies Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO |
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John Hancock Funds II Active Bond Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock Funds Trust Active Bond Trust | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
Manulife Global Funds U.S. Bond Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
Manulife Global Fund US Special Bond Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
Manulife Global Fund Strategic Income | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO |
10
John Hancock Trust Strategic Income Trust | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock Funds II High Income Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock Funds II Strategic Income Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock High Yield Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO | |
John Hancock Strategic Income Fund | ||
By: | /s/ Barry Evans | |
Name: | Barry Evans | |
Title: | President & CIO |
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Schedule 1.1
Shareholder |
Series A-1 Common Stock |
Series
A-1 Preferred Stock |
Series
A-1 Preferred Warrants |
|||||||||
John Hancock Bond Fund |
885 | 17,280 | | |||||||||
John Hancock Income Securities Trust |
768 | 14,991 | | |||||||||
John Hancock Investors Trust |
977 | 19,074 | | |||||||||
John Hancock Funds III Leveraged Companies Fund |
92 | 1,563 | | |||||||||
John Hancock Funds II Active Bond Fund |
166 | 3,249 | | |||||||||
John Hancock Funds Trust Active Bond Trust |
821 | 16,024 | | |||||||||
Manulife Global Funds U.S. Bond Fund |
38 | 739 | | |||||||||
Manulife Global Fund US Special Bond Fund |
148 | 2,879 | | |||||||||
Manulife Global Fund Strategic Income |
64 | 1,146 | | |||||||||
John Hancock Trust Strategic Income Trust |
269 | 5,366 | | |||||||||
John Hancock Funds II High Income Fund |
7,894 | 168,490 | | |||||||||
John Hancock Funds II Strategic Income Fund |
3,048 | 55,025 | | |||||||||
John Hancock High Yield Fund |
18,486 | 158,092 | 202,511 | |||||||||
John Hancock Strategic Income Fund |
8,564 | 159,488 | | |||||||||
|
|
|
|
|
|
|||||||
Total |
42,220 | 623,406 | 202,511 | |||||||||
|
|
|
|
|
|
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Schedule 1.2
Shareholder |
Purchase Price |
|||
John Hancock Bond Fund |
$ | 1,634,850 | ||
John Hancock Income Securities Trust |
$ | 1,418,310 | ||
John Hancock Investors Trust |
$ | 1,804,590 | ||
John Hancock Funds III Leveraged Companies Fund |
$ | 148,950 | ||
John Hancock Funds II Active Bond Fund |
$ | 307,350 | ||
John Hancock Funds Trust Active Bond Trust |
$ | 1,516,050 | ||
Manulife Global Funds U.S. Bond Fund |
$ | 69,930 | ||
Manulife Global Fund US Special Bond Fund |
$ | 272,430 | ||
Manulife Global Fund Strategic Income |
$ | 108,900 | ||
John Hancock Trust Strategic Income Trust |
$ | 507,150 | ||
John Hancock Funds II High Income Fund |
$ | 15,874,560 | ||
John Hancock Funds II Strategic Income Fund |
$ | 5,226,570 | ||
John Hancock High Yield Fund |
$ | 34,118,010 | ||
John Hancock Strategic Income Fund |
$ | 15,124,680 | ||
|
|
|||
Total |
$ | 78,132,330 | ||
|
|
13
Exhibit 99.3
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this Agreement) is made as of January 25, 2013 (the Effective Date), by and among Athens Acquisition LLC, a Delaware limited liability company (Buyer), and each of the other undersigned parties (the Sellers and individually, each a Seller). Capitalized terms used herein shall have the meanings given to such terms in Section 7 of this Agreement unless otherwise defined herein.
WHEREAS, the Sellers collectively own the following equity securities issued by Greektown Superholdings, Inc., a Delaware corporation (the Company): 15,741 shares of Series A-1 Common Stock (collectively, the Common Shares) and 128,030 shares of Series A-1 Preferred Stock (collectively, the Preferred Shares); and
WHEREAS, each Seller desires to sell to Buyer, and Buyer desires to buy from such Seller, the Common Shares and the Preferred Shares owned by such Seller (with any rights, dividends or options related thereto the Purchased Securities) for the consideration and subject to the terms and conditions of this Agreement.
The parties agree as follows:
1. | PURCHASE AND SALE. |
1.1 | Purchase and Sale of Stock. |
Upon and subject to the terms and conditions set forth in this Agreement, Buyer shall purchase from each Seller, and each Seller shall sell, assign, transfer, convey and deliver to Buyer, the applicable Purchased Securities (free and clear of all Liens).
1.2 | Purchase Price. |
The aggregate purchase price for the Purchased Securities is $12,939,390 (the Purchase Price), to be allocated to each Seller as set forth on Schedule 1.2; provided, however, that if the Closing Date shall occur on or after March 31, 2013, then, in addition to the Purchase Price, the Buyer shall also pay the Additional Amount to the Sellers (with such Additional Amount to be allocated to each Seller in the same proportion as the Purchase Price is allocated to such Seller as set forth on Schedule 1.2).
2. | CLOSING. |
2.1 | Closing Date. |
The Closing will occur at the offices of Honigman Miller Schwartz and Cohn LLP, 2290 First National Building, 660 Woodward Avenue, Detroit, Michigan 48226, or by electronic transmission (as agreed upon by Buyer and OppenheimerFunds, Inc. (the Sellers Representative)), at 10:00 a.m. (Eastern Time) on a date to be agreed upon by Buyer and the Sellers Representative that occurs within seven days following the satisfaction of all conditions precedent specified in Section 5.1(c), Section 5.1(d), Section 5.2(b) and Section 5.2(c) (such date on which the Closing occurs, the Closing Date).
2.2 | Closing Transactions. |
(a) At the Closing, the Sellers and Buyer will consummate the following transactions (collectively, the Closing Transactions): (i) unless Buyer requests otherwise pursuant to Section 2.2(b), each Seller will deliver the applicable Purchased Securities to Buyer by means of a DWAC transaction to be credited to Buyers account and (ii) Buyer will deliver the portion of the Purchase Price (and, if applicable, the Additional Amount) allocable to such Seller for credit to such Sellers account in cash or other immediately available funds.
(b) Each of the Sellers agrees that upon Buyers request, in lieu of delivery of the Purchased Securities pursuant to Section 2.2(a) and subject to satisfaction of all conditions precedent specified in Section 5.1(c), Section 5.1(d), Section 5.2(b) and Section 5.2(c), such Seller will tender the Purchased Securities in response to a Buyer-initiated tender offer or vote in favor of a Buyer-initiated merger, so long as (i) the aggregate compensation received by such Seller as a result of such tender or merger is no less than the Purchase Price (and, if applicable, the Additional Amount) allocable to such Seller and (ii) such compensation is received by such Seller no later than the Closing Date contemplated by Section 2.1.
3. | REPRESENTATIONS AND WARRANTIES OF THE SELLERS. |
As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereunder, each Seller, severally and not jointly, makes the representations and warranties set forth in this Section 3 with respect to itself as follows:
3.1 | Organization. |
Such Seller is duly organized, validly existing and in good standing (or having comparable active status) under the laws of the jurisdiction of its formation.
3.2 | Authority; Binding Obligation. |
Such Seller has the requisite power and authority to enter into this Agreement, to carry out its obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery by such Seller of this Agreement, the performance by such Seller of its obligations hereunder, and the consummation by such Seller of the transactions contemplated hereby have been duly authorized by all requisite action on the part of such Seller. This Agreement has been duly executed and delivered by such Seller and constitutes the legal, valid and binding obligation of such Seller enforceable against it in accordance with its terms.
3.3 | Absence of Conflicts. |
Neither the execution, delivery or performance of this Agreement, nor the consummation by such Seller of the transactions contemplated hereby:
(a) does or will (i) result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under or (v) result in the creation of any Lien upon any assets of such Seller, in each case under the provisions of the charter documents of such Seller or any indenture, license, mortgage, loan agreement or other agreement, instrument or contract or any legal requirement by which such Seller or any of its assets is bound; or
2
(b) except with regard to requisite governmental and regulatory approvals, and without limiting clause (a) above, require any consent, approval, or authorization of any Person.
3.4 | Securities. |
Such Seller owns beneficially the number of Common Shares and Preferred Shares set forth next to its name on Schedule 3.4, free and clear of any restrictions on transfer or Liens, and owns no other Equity Security of the Company. The Common Shares and Preferred Shares owned by such Seller are validly issued, fully paid and nonassessable. None of the Common Shares or Preferred Shares owned by such Seller were issued in violation of any preemptive rights. Such Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require such Seller to sell, transfer or otherwise dispose of any Equity Security of the Company (other than this Agreement). Such Seller is not a party to any voting trust, proxy, or other contract or understanding with respect to the voting of any Equity Security of the Company.
3.5 | Brokers. |
Such Seller, nor any representatives or affiliates of such Seller, has incurred (or will incur) any obligation or liability, contingent or otherwise, for any brokerage or finders fee or agents commission or other similar payment in connection with this Agreement or the transactions contemplated hereunder.
4. | REPRESENTATIONS AND WARRANTIES OF BUYER |
As a material inducement to the Sellers to enter into this Agreement and to consummate the transactions contemplated hereunder, Buyer makes the representations and warranties set forth in this Section 4 with respect to itself as follows:
4.1 | Organization. |
Buyer is a limited liability company which is validly existing and in good standing under the laws of the State of Delaware.
4.2 | Authority; Binding Obligation. |
Buyer has the requisite power and authority to enter into this Agreement, to carry out its obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder, and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with its terms.
4.3 | Absence of Conflicts. |
Neither the execution, delivery or performance of this Agreement, nor the consummation by Buyer of the transactions contemplated hereby:
(a) does or will (i) result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to
3
terminate or to accelerate any obligation under or (v) result in the creation of any Lien upon any assets of Buyer, in each case under the provisions of the charter documents of Buyer or any indenture, license, mortgage, loan agreement or other agreement, instrument or contract or any legal requirement by which Buyer or any of its assets is bound; or
(b) except with regard to requisite governmental and regulatory approvals, and without limiting clause (a) above, require any consent, approval, or authorization of any Person.
4.4 | Investment Intent. |
Buyer is acquiring the Purchased Securities for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable securities laws.
5. | CONDITIONS PRECEDENT |
5.1 | Conditions Precedent to Buyers Obligations. |
The obligation of Buyer to consummate the Closing Transactions is subject to the fulfillment prior to or at the Closing of the following conditions:
(a) The Sellers representations and warranties contained in this Agreement shall be true and correct in all material respects at and as of the Closing.
(b) The Sellers will have performed and complied in all material respects with each of the Sellers obligations under this Agreement.
(c) No Action or Proceeding before any Governmental Entity will be pending or threatened wherein an unfavorable judgment, decree, injunction or order would prevent the consummation of the Closing Transactions or result in any Closing Transaction being declared unlawful or rescinded, and no such judgment, injunction, decree or order will be in effect.
(d) Buyer shall have received all requisite governmental and regulatory approvals with respect to the transactions contemplated by this Agreement, including those from the Michigan Gaming Control Board.
5.2 | Conditions Precedent to the Sellers Obligation. |
The obligation of the Sellers to consummate the Closing Transactions is subject to fulfillment prior to or at the Closing of the following conditions:
(a) The Buyers representations and warranties contained in this Agreement shall be true and correct in all material respects at and as of the Closing.
(b) No Action or Proceeding before any Governmental Entity will be pending or threatened wherein an unfavorable judgment, decree, injunction or order would prevent the consummation of the Closing Transactions or result in any Closing Transaction being declared unlawful or rescinded, and no such judgment, injunction, decree or order will be in effect.
(c) The Sellers shall have received all requisite governmental and regulatory approvals with respect to the transactions contemplated by this Agreement, including those from the Michigan Gaming Control Board.
4
6. | MISCELLANEOUS. |
6.1 | Voting Covenant. |
In the event that a vote of the Companys shareholders is held, or written shareholder action is otherwise taken, during the period following satisfaction of all conditions precedent specified in Section 5.1(c), Section 5.1(d), Section 5.2(b) and Section 5.2(c) and prior to the Closing date, each Seller hereby covenants and agrees to vote such Sellers Purchased Shares as directed by Buyer. To the extent this Section 6.1 conflicts with Section 2.2(b) of this Agreement, Section 2.2(b) shall control.
6.2 | Survival. |
Except in the case of a termination effectuated pursuant to Section 6.14(a), all representations and warranties contained in this Agreement shall survive the consummation of the transactions contemplated hereunder indefinitely and shall be binding upon, and fully enforceable against each party, and its successors and assigns.
6.3 | Confidentiality. |
No Seller will make, or file, any public statement, report or press release disclosing this Agreement, its terms or the transactions contemplated hereunder; provided, however, a Seller may make such disclosure as, in the opinion of such Sellers legal counsel, is required by law, so long as (a) such Seller has reasonably consulted with Buyer with respect to the disclosure requirement and the content of such disclosure and (b) such Seller does not disclose any such information earlier than legally required.
6.4 | Notices. |
Any notice or other communication required or which may be given under this Agreement shall be in writing sent by overnight courier to the addressee to the address provided below and shall be deemed given one day after such mailing.
To any Seller:
OppenheimerFunds, Inc.
6803 S. Tuscon Way
Centennial, CO 80112
Attn: Jack Brown
To Buyer:
Athens Acquisition LLC
1086 Woodward Avenue
Detroit, Michigan 48226
Attn: Matthew Cullen
5
with a copy to (which shall not constitute notice to Buyer):
Honigman Miller Schwartz and Cohn LLP
2290 First National Building
660 Woodward Avenue
Detroit, Michigan 48226
Attn: Howard N. Luckoff
Any of the addresses set forth above may be changed for purposes of providing notice under this Agreement by giving notice to the other parties.
6.5 | Transfer Taxes. |
All transfer, documentary, sales, use, stamp, registration and other such taxes, if any, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement shall be paid by Sellers when due.
6.6 | Fees and Expenses. |
Each party shall bear its own out-of-pocket fees and expenses of any advisors, counsel and accountants, incurred by the party or on its behalf in connection with this Agreement and consummation of the Closing Transactions.
6.7 | Entire Agreement. |
This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, relating to such subject matter in any way.
6.8 | Remedies. |
The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that the parties shall be entitled to injunctive relief to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or equity to which the parties may be entitled. Except as otherwise provided herein, all remedies available under this Agreement, at law or otherwise, shall be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any party of a particular remedy shall not preclude the exercise of any other remedy.
6.9 | Governing Law and Forum. |
This Agreement shall be governed by the laws of the State of New York (regardless of the laws that might otherwise govern under applicable principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect, performance and remedies. Each of the parties consents to be subject to personal jurisdiction of the federal and state courts located in the State of New York, Borough of Manhattan, which shall be the sole and exclusive forums for the resolution of all disputes under, or relating to, this Agreement.
6
6.10 | Counterparts; Electronic Signatures. |
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A manual signature on this Agreement or other documents to be delivered pursuant to this Agreement or an image of which shall have been transmitted electronically, will constitute an original signature for all purposes. The delivery of copies of this Agreement or other documents to be delivered pursuant to this Agreement, including executed signature pages where required, by electronic transmission will constitute effective delivery of this Agreement or such other documents for all purposes.
6.11 | Severability. |
If any provision of this Agreement is determined to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall have no effect on the other provisions of this Agreement, which shall remain valid, operative and enforceable. Upon any such determination that any term or other provision is illegal, invalid or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.
6.12 | Waiver and Amendments. |
Except as set forth in Section 6.14(a), this Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No failure to exercise or delay in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights and remedies under this Agreement are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
6.13 | Assignment. |
No Seller may assign any of its rights under this Agreement without the prior written consent of Buyer, which may be withheld in Buyers sole discretion. Any attempted assignment in violation of the foregoing provision will be null and void.
6.14 | Termination Option; Fee Amount Payable Upon Certain Events. |
(a) If the Closing has not occurred on or prior to October 25, 2013, this Agreement may be terminated by either the Sellers, acting jointly, or Buyer upon effective delivery of a notice of termination to the other party (or parties) (the date of such effective delivery, the Termination Date). Except as set forth in Section 6.14(b) with respect to the Fee Amount, all rights and obligations of the parties hereto shall immediately cease and terminate on the Termination Date.
(b) Upon (i) any termination of this Agreement effectuated pursuant to Section 6.14(a) or (ii) a final order by the Michigan Gaming Control Board expressly denying approval of the sale of the Purchased Securities as contemplated hereby (an MGCB Refusal), the Buyer shall pay to the Sellers an aggregate fee of $500,000 (the Fee Amount) (with such
7
Fee Amount to be allocated to each Seller in the same proportion as the Purchase Price is allocated to such Seller as set forth on Schedule 1.2). For the avoidance of doubt, in the event of an MGCB Refusal the Fee Amount shall be payable by Buyer regardless of whether the Michigan Gaming Control Board subsequently provides the requisite regulatory approval of the transactions contemplated hereby and regardless of whether the Closing subsequently occurs. In no event shall the Buyer be required to pay the Fee Amount more than once.
7. | DEFINITIONS. |
7.1 | Definitions. |
For purposes of this Agreement, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth herein:
Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.
Additional Amount means an amount calculated as follows:
Where:
P = $12,939,390
R = 7.50%
D1, D2 . . . Dn = the actual number of days from and including the Effective Date to and including the Closing Date, where D1 is the Effective Date and Dn is the Closing Date.
Closing means closing of the Closing Transactions.
Equity Security means (i) any capital stock or other equity security, (ii) any security directly or indirectly convertible into or exchangeable for any capital stock or other equity security, or (iii) any warrants, options or other rights, directly or indirectly, to subscribe for or to purchase any capital stock or other equity security.
Governmental Entity means any government, agency, governmental department, commission, court, arbitration panel or instrumentality of the United States of America or any foreign government or any state, municipality or other political subdivision in or of any of the foregoing and any court, agency, instrumentality, regulatory commission or other entity exercising executive, legislative, judicial, regulatory or administrative functions or pertaining to government.
Lien means any charge, claim, equitable interest, lien (whether voluntary, involuntary, statutory, or other), option, pledge, hypothecation, preference, priority, security interest, mortgage, right-of-way, easement, encroachment, servitude, conditional sale or other title retention arrangement, security or other deposits, right of first option, right of first refusal, or restriction of any kind, including, without limitation, any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.
8
Person means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any governmental entity or any similar entity.
Proceeding means any Action, suit, claim, demand, summons, citations or subpoena, hearing, audit, public meeting or inquiry of any kind or nature whatsoever, civil, criminal, administrative, regulatory or otherwise, at law or in equity.
(Signature page follows)
9
IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement as of the date first set forth above.
Buyer | ||
Athens Acquisition LLC | ||
By: | /s/ Matthew Cullen | |
Name: | Matthew Cullen | |
Title: | President | |
Sellers | ||
Oppenheimer Global Strategic Income Fund | ||
By: | /s/ Brian Petersen | |
Name: | Brian Petersen | |
Title: | Assistant Treasurer | |
Oppenheimer Variable Account Funds for the account of Oppenheimer Global Strategic Income Fund/VA | ||
By: | /s/ Brian Petersen | |
Name: | Brian Petersen | |
Title: | Assistant Treasurer |
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Schedule 1.2
Seller |
Purchase Price | Proportion of Purchase Price |
||||||
Oppenheimer Global Strategic Income Fund |
$ | 9,215,640 | 71.22 | % | ||||
Oppenheimer Variable Account Funds for the account of Oppenheimer Global Strategic Income Fund/VA |
$ | 3,723,750 | 28.78 | % | ||||
|
|
|
|
|||||
Total |
$ | 12,939,390 | 100 | % | ||||
|
|
|
|
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Schedule 3.4
Seller |
Series A-1 Common Stock |
Series A-1 Preferred Stock |
||||||
Oppenheimer Global Strategic Income Fund |
11,417 | 90,979 | ||||||
Oppenheimer Variable Account Funds for the account of Oppenheimer Global Strategic Income Fund/VA |
4,324 | 37,051 | ||||||
|
|
|
|
|||||
Total |
15,741 | 128,030 | ||||||
|
|
|
|
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Exhibit 99.4
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this Agreement) is made as of January 31, 2013, by and among Athens Acquisition LLC, a Delaware limited liability company (Buyer), and each of the other undersigned parties (the Sellers and individually, each a Seller). Capitalized terms used herein shall have the meanings given to such terms in Section 7 of this Agreement unless otherwise defined herein.
WHEREAS, the Sellers collectively own the following equity securities issued by Greektown Superholdings, Inc., a Delaware corporation (the Company): 33,127 shares of Series A-1 Common Stock ( the Common Shares), 291,000 shares of Series A-1 Preferred Stock ( the Series A-1 Preferred), 40,579 shares of Series A-2 Preferred Stock (collectively with the Series A-1 Preferred, the Preferred Shares), and warrants to acquire 186,657 shares of Series A-2 Preferred Stock (the Warrants);
WHEREAS, each Seller desires to sell to Buyer, and Buyer desires to buy from each Seller, the Common Shares, the Preferred Shares and the Warrants (together with any rights, dividends or options related thereto, the Purchased Securities); and
WHEREAS, concurrently herewith the Buyer has deposited funds in the amount of $5 million (the Escrowed Funds) with a third party escrow agent as security for the performance of certain of Buyers obligations hereunder.
The parties agree as follows:
1. | PURCHASE AND SALE. |
1.1 | Purchase and Sale of Purchased Securities. |
Upon and subject to the terms and conditions set forth in this Agreement, Buyer shall purchase from each Seller, and each Seller shall sell, assign, transfer, convey and deliver to Buyer, the Purchased Securities set forth opposite the name of such Seller on Schedule 3.4 hereof (free and clear of all Liens).
1.2 | Purchase Price. |
The aggregate purchase price for the Purchased Securities is $49,622,670 (the Purchase Price), to be allocated as set forth on Schedule 1.2; provided, however, if, at any time on or prior to December 31, 2013, Buyer or any of its Affiliates enters into an agreement with any person (other than an individual who is employed by the Company) to purchase, sell or otherwise acquire or dispose of (including pursuant to merger, consolidation or similar transaction), or otherwise purchases, sells, acquires or disposes of, any Equity Security of the Company for a price that implies a price per share of common stock of the Company that is greater than $90 per share (including shares issuable upon the exercise of warrants) (a Subsequent Agreement), then the Purchase Price shall be appropriately increased to reflect the per share price in such Subsequent Agreement. Buyer shall notify the Sellers in writing no later than three days following such time as either of them or their Affiliates enter into a Subsequent Agreement. In the event that Buyer or any of its Affiliates enters into a Subsequent Agreement following the Closing Date, Buyer shall remit payment of the increase in the Purchase Price no later than five days following the date that such Subsequent Agreement is executed.
2. | CLOSING. |
2.1 | Closing Date. |
The Closing will occur at the offices of Honigman Miller Schwartz and Cohn LLP, 2290 First National Building, 660 Woodward Avenue, Detroit, Michigan 48226, or by electronic transmission, as agreed upon by Buyer and Solus Alternative Asset Management LP (the Sellers Representative) at 10:00 a.m. (Eastern Time) on the date that is three days following the satisfaction of all conditions precedent specified in Section 5.1(c), Section 5.1(d), Section 5.2(a) and Section 5.2(b), or such other date as shall be agreed upon by Buyer and the Sellers Representative (the Closing Date); provided that the Closing Date shall be no later than April 15, 2013 (as such date may be extended pursuant to Section 6.3 below).
2.2 | Closing Transactions. |
(a) At the Closing, the Sellers and Buyer will consummate the following transactions (collectively, the Closing Transactions): (i) unless Buyer requests otherwise pursuant to Section 2.2(b), the Sellers will deliver the Purchased Securities to Buyer together with duly executed stock powers and (ii) Buyer will deliver the Purchase Price as directed by the Sellers Representative in cash or other immediately available funds.
(b) Each of the Sellers agree that upon Buyers request, in lieu of delivery of the Purchased Securities pursuant to Section 2.2(a) and subject to satisfaction of all conditions precedent specified in Section 5.1(c), Section 5.1(d), Section 5.2(a) and Section 5.2(b), such Seller will tender the Purchased Securities in response to a Buyer-initiated tender offer or vote in favor of a Buyer-initiated merger, so long as (i) the aggregate compensation received by the Sellers Representative as a result of such tender or merger is no less than the Purchase Price and (ii) such compensation is received by the Sellers Representative no later than April 15, 2013 (as such date may be extended pursuant to Section 6.3 below).
3. | REPRESENTATIONS AND WARRANTIES OF THE SELLERS. |
As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereunder, each Seller, severally and not jointly, makes the representations and warranties set forth in this Section 3 as follows:
3.1 | Organization. |
Such Seller is duly organized, validly existing and in good standing (or having comparable active status) under the laws of the jurisdiction of its formation.
3.2 | Authority; Binding Obligation. |
Such Seller has the requisite power and authority to enter into this Agreement, to carry out such Sellers obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery by such Seller of this Agreement, the performance by such Seller of its obligations hereunder, and the consummation by each Seller of the transactions contemplated hereby have been duly authorized by all requisite action on the part of such Seller. This Agreement has been duly executed and delivered by such Seller and constitutes the legal,
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valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors rights and to general equity principles.
3.3 | Absence of Conflicts. |
Neither the execution, delivery or performance of this Agreement, nor the consummation by any Seller of the transactions contemplated hereby:
(a) does or will (i) result in any breach of any of the provisions of, (ii) constitute a default under or (iii) result in a violation of (x)the charter documents of such Seller or (y) any indenture, license, mortgage, loan agreement or other agreement, instrument or contract by which such Seller or any of its assets is bound; or
(b) except with regard to the approval of the Michigan Gaming Control Board (the MGCB) , and without limiting clause (a) above, violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which such Seller is subject or require any consent, approval, or authorization of any Person.
3.4 | Securities. |
Such Seller holds of record and owns beneficially the number of Common Shares, Preferred Shares and Warrants set forth next to its name on Schedule 3.4, and such Seller has the right to sell such Common Shares, Preferred Shares and Warrants free and clear of any Liens or restrictions on transfer, other than restrictions imposed under applicable Law, or Liens that will not be released prior to or concurrently with the Closing, and owns no other Equity Security of the Company. Such Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require such Seller to sell, transfer or otherwise dispose of any Equity Security of the Company (other than this Agreement and the documents evidencing the terms of such Common Share, Preferred Shares and Warrants or pursuant to which the Purchased Securities were issued to such Seller by the Company). Such Seller is not a party to any voting trust, proxy, or other contract or understanding with respect to the voting of any Equity Security of the Company.
3.5 | Brokers. |
None of such Seller, nor any representatives or Affiliates of such Seller, has incurred (or will incur) any obligation or liability, contingent or otherwise, for any brokerage or finders fee or agents commission or other similar payment in connection with this Agreement or the transactions contemplated hereunder for which Buyer could be liable.
4. | REPRESENTATIONS AND WARRANTIES OF BUYER |
As a material inducement to the Sellers to enter into this Agreement and to consummate the transactions contemplated hereunder Buyer makes the representations and warranties set forth in this Section 4 as follows:
4.1 | Organization. |
Buyer is a limited liability company which is validly existing and in good standing under the laws of the State of Delaware.
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4.2 | Authority; Binding Obligation. |
Buyer has the requisite power and authority to enter into this Agreement, to carry out their respective obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder, and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with its terms.
4.3 | Absence of Conflicts. |
Neither the execution, delivery or performance of this Agreement, nor the consummation by Buyer of the transactions contemplated hereby:
(a) does or will (i) result in any breach of any of the provisions of, (ii) constitute a default under or (iii) result in a violation of the provisions of (x) the charter documents of Buyer or (y) any indenture, license, mortgage, loan agreement or other agreement, instrument or contract by which Buyer or any of its respective Affiliates or any of their respective assets is bound; or
(b) except with regard to the approval of the MGCB, and without limiting clause (a) above, violate any 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 require any consent, approval, or authorization of any Person.
4.4 | Investment Intent. |
At the time Buyer and its Affiliates were offered the Purchased Securities, each was, at the date hereof each is, and at the Closing each will be, an Accredited Investor as defined in Rule 501 under the Securities Act of 1933, as amended (the Securities Act) and under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, having such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Purchased Securities. None of Buyer nor any of its Affiliates was solicited to purchase the Purchased Securities through any form of general solicitation or general advertisement. Buyer (i) is a sophisticated entity with respect to the purchase of the Purchased Securities, (ii) is able to bear the economic risk associated with the purchase of the Purchased Securities, (iii) has such knowledge and experience so as to be aware of the risks and uncertainties inherent in the purchase of investments of the type contemplated in this Agreement, and (iv) has independently and without reliance upon Sellers or any Affiliate of Sellers, and based on such information as they have deemed appropriate, made their own analysis and decision to enter into this Agreement. Buyer acknowledges that Sellers and their Affiliates have not given it or its Affiliates any investment advice, credit information or opinion on whether the purchase of the Purchased Securities is prudent. Buyer is acquiring the Purchased Securities for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable securities laws. Buyer hereby acknowledges that it has had access to the same information regarding the Company as is available to the Sellers.
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4.5 | Financing. |
Buyer has sufficient equity commitments on the date hereof, and will have sufficient cash on hand on the Closing Date, to pay the Purchase Price and to make all other necessary payments of fees and expenses in connection with the transactions contemplated by this Agreement.
5. | CONDITIONS PRECEDENT |
5.1 | Conditions Precedent to Buyers Obligations. |
The obligation of Buyer to consummate the Closing Transactions is subject to the fulfillment prior to or at the Closing of the following conditions:
(a) The Sellers representations and warranties contained in this Agreement shall be true and correct in all material respects at and as of the Closing.
(b) The Sellers will have performed and complied in all material respects with each of the Sellers obligations under this Agreement.
(c) No Governmental Entity shall have enacted a judgment, decree, injunction or order that is in effect and has the effect of making illegal or otherwise preventing the consummation of the Closing Transactions.
(d) Buyer shall have received the approval of the MGCB, if required, for the purchase of the Purchased Securities.
(e) The Sellers shall have delivered all of the Purchased Securities to Buyer.
5.2 | Conditions Precedent to the Sellers Obligation. |
The obligation of the Sellers to consummate the Closing Transactions is subject to fulfillment prior to or at the Closing of the following conditions:
(a) No Governmental Entity shall have enacted a judgment, decree, injunction or order that is in effect and has the effect of making illegal or otherwise preventing the consummation of the Closing Transactions.
(b) The Sellers shall have received the approval of MGCB, if required, for the sale of the Purchased Securities.
(c) The Buyer shall have delivered the Purchase Price to the Sellers.
(d) The Closing Date shall have occurred no later than April 15, 2013 (as such date may be extended pursuant to Section 6.3 below).
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6. | MISCELLANEOUS. |
6.1 | Voting Covenant. |
Subject to the right of the Sellers to terminate this Agreement pursuant to Section 6.2 below, in the event that a vote of the Companys shareholders is held, or written shareholder action is otherwise taken, during the period following satisfaction of all conditions precedent specified in Section 5.1(c), Section 5.1(d), Section 5.2(a) and Section 5.2(b) and prior to the Closing Date, to the extent permitted pursuant to applicable Law, each Seller hereby covenants and agrees to vote such Sellers Purchased Shares as directed by Buyer. To the extent this Section 6.1 conflicts with Section 2.2(b) of this Agreement, Section 2.2(b) shall control.
6.2 | Additional Covenants. |
Buyer and each of the Sellers will use best efforts to take or cause to be taken all actions necessary or desirable and proceed diligently and in good faith to satisfy each condition to its obligations and the obligations of the other parties contained in this Agreement and to consummate and make effective the transactions contemplated by this Agreement, and none of the Sellers or Buyer will, nor will they permit any of their Affiliates to, take or fail to take any action that could be reasonably expected to result in the nonfulfillment of any such condition.
6.3 Termination. The Sellers may terminate this Agreement upon notification to the Buyer in the event that the Closing shall not have occurred on or prior to April 15, 2013, provided that the Buyer may extend such date for a period of up to two thirty (30) day extension periods (and the dates set forth in Section 2.1, Section 2.2(b) and Section 5.2(d) above shall be commensurately extended) upon not less than five days notice prior to the then applicable termination date so long as (x) the sole condition that remains unsatisfied as of the then applicable termination date is the receipt of required approvals from the MGCB and (y) Buyer demonstrates to the reasonable satisfaction of Sellers that (i) it has sufficient cash on hand to pay the Purchase Price and (i) it is using best efforts to obtain the required approvals of the MGCB and there are no facts known to Buyer that could be reasonably expected to result in the failure to obtain the required approval of the MGCB. If this Agreement is validly terminated by Sellers pursuant to Section 6.3, this Agreement will forthwith become null and void and there will be no liability or obligation on the part of the Buyer or Sellers (or any of their respective Affiliates), except (i) that the provisions of Sections 6.5, 6.6, 6.7, 6.9, 6.10, 6.11, 6.12, 6.15 and this Section 6.3 will continue to apply following any such termination and(ii) that nothing contained herein shall relieve any party hereto from liability for willful breach of its representations, warranties, covenants or agreements contained in this Agreement.
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6.4 | Indemnification. |
All representations, warranties and covenants contained in this Agreement shall survive the consummation of the transactions contemplated hereunder indefinitely and shall be binding upon, and fully enforceable against each Seller and Buyer, respectively, and their respective successors and assigns. Each Seller shall, severally and not jointly, indemnify, defend, and hold harmless Buyer and each of its Affiliates, officers, employees, agents, and representatives from and against any Losses, costs, damages, or expenses arising from or relating to such Sellers breach of or failure to perform any representations, warranties, or covenants contained in this Agreement or any other agreement or document referred to herein. Except as described in Section 6.5 below, Buyer shall indemnify, defend, and hold harmless each Seller and each of its Affiliates, officers, employees, agents, and representatives from and against any Losses, costs, damages, or expenses arising from or relating to such Buyers breach of or failure to perform any representations, warranties, or covenants contained in this Agreement or any other agreement or document referred to herein.
6.5 | Liquidated Damages. |
In the event that (a) Buyer fails to consummate the Closing Transactions as contemplated by Section 2.1, notwithstanding the satisfaction of all of the closing conditions in Section 5.1 or (b) Buyer breaches its covenants in Section 6.2 and fails to cure within 15 business days of the receipt of written notice of such breach from Seller, then Seller shall be entitled to draw the entire balance of the Escrowed Funds as liquidated damages. Buyer and the Sellers acknowledge that the actual damages sustained by Sellers in the event that Closing Transactions fail to close are difficult to ascertain. The parties further agree that the liquidated damages amount set forth herein is a reasonable estimate of the amount of such damages, including consequential damages, gauged by the circumstances existing at the time this Agreement is executed.
6.6 | Confidentiality. |
(a) No Seller will make, or file, any public statement, report or press release disclosing or referring to this Agreement, its terms or the transactions contemplated hereunder; provided, however, a Seller may make such disclosure as, based on the advice of such Sellers legal counsel, is required by Law, so long as (i) to the extent practicable, such Seller has given Buyer reasonable advance notice of such proposed disclosure and (ii) such Seller does not disclose any such information earlier than legally required, as determined based on the advice of Sellers legal counsel.
(b) Buyer may make, or file, any public statement, report or press release disclosing or referring to this Agreement and the transaction contemplated hereunder, so long as Buyer has reasonably consulted with the Sellers Representative with respect to the timing, manner of dissemination and content of such disclosure.
(c) The confidentiality obligations of the Sellers and Buyer under this Section 6.5 shall not apply to information that is or becomes generally available to the public, other than through disclosure in violation of this Section 6.6.
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6.7 | Notices. |
Any notice or other communication required or which may be given under this Agreement shall be in writing sent by overnight courier to the addressee to the address provided below and shall be deemed given one day after such mailing.
To any Seller:
Solus Alternative Asset Management LP
410 Park Avenue, 11th Floor
New York, New York 10022
Attn: Kenzie Shaw
Jonathan Zinman
with a copy to (which shall not constitute notice to Buyer):
Milbank, Tweed, Hadley & McCloy LLP
601 South Figueroa Street, 30th Floor
Los Angeles, California 90017
Attn: Deborah J. Conrad
To Buyer:
Athens Acquisition LLC
1086 Woodward Avenue
Detroit, Michigan 48226
Attn: Matthew Cullen
with a copy to (which shall not constitute notice to Buyer):
Honigman Miller Schwartz and Cohn LLP
2290 First National Building
660 Woodward Avenue
Detroit, Michigan 48226
Attn: Howard N. Luckoff
Any of the addresses set forth above may be changed for purposes of providing notice under this Agreement by giving notice to the other parties.
6.8 | Transfer Taxes. |
All transfer, documentary, sales, use, stamp, registration and other such taxes, if any, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement shall be paid in equal portions by the Buyer and the Sellers when due.
8
6.9 | Fees and Expenses. |
Each party shall bear its own out-of-pocket fees and expenses of any advisors, counsel and accountants, incurred by the party or on its behalf in connection with this Agreement and consummation of the Closing Transactions.
6.10 | Entire Agreement. |
This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, relating to such subject matter in any way.
6.11 | Remedies. |
In the event of a breach of this Agreement or termination of this Agreement pursuant to Section 6.3, Sellers or Buyer may seek such remedies, including damages and fees of attorneys, against the other with respect to any such breach as are provided in this Agreement or as are otherwise available at Law or in equity, including injunctive relief to prevent breaches of this Agreement and to specific performance of the terms hereof. Except as otherwise provided herein, all remedies available under this Agreement, at Law or otherwise, shall be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any party of a particular remedy shall not preclude the exercise of any other remedy.
6.12 | Governing Law and Forum. |
This Agreement (except where specifically provided otherwise) shall be governed by the laws of the State of New York (regardless of the laws that might otherwise govern under applicable principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect, performance and remedies. Each of the parties consents to be subject to personal jurisdiction of the federal and state courts located in the Borough of Manhattan in New York, which shall be the sole and exclusive forums for the resolution of all disputes under, or relating to, this Agreement.
6.13 | Counterparts; Electronic Signatures. |
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A manual signature on this Agreement or other documents to be delivered pursuant to this Agreement or an image of which shall have been transmitted electronically, will constitute an original signature for all purposes. The delivery of copies of this Agreement or other documents to be delivered pursuant to this Agreement, including executed signature pages where required, by electronic transmission will constitute effective delivery of this Agreement or such other document for all purposes.
6.14 | Severability. |
If any provision of this Agreement is determined to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall have no effect on the other provisions of this Agreement, which shall remain valid, operative and enforceable. Upon any such determination that any term or other provision is illegal, invalid or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.
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6.15 | Waiver and Amendments. |
This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No failure to exercise or delay in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights and remedies under this Agreement are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
6.16 | Assignment. |
Neither Buyer nor or Sellers may assign any of their rights or obligations under this Agreement without the prior written consent of the other parties hereto, which may be withheld in the sole discretion of such other party. Any attempted assignment in violation of the foregoing provision will be null and void.
7. | DEFINITIONS. |
7.1 | Definitions. |
For purposes of this Agreement, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth herein:
Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.
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. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by Contract or otherwise and, in any event and without limitation of the previous sentence, any Person owning ten percent (10%) or more of the voting securities of another Person shall be deemed to control that Person.
Closing means the closing of the Closing Transactions.
Equity Security means (i) any capital stock or other equity security, (ii) any security directly or indirectly convertible into or exchangeable for any capital stock or other equity security, or (iii) any warrants, options or other rights, directly or indirectly, to subscribe for or to purchase any capital stock or other equity security.
Governmental Entity means any government, agency, governmental department, commission, court, arbitration panel or instrumentality of the United States of America or any foreign government or any state, municipality or other political subdivision in or of any of the foregoing and any court, agency, instrumentality, regulatory commission or other entity exercising executive, legislative, judicial, regulatory or administrative functions or pertaining to government.
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Law means all federal, state, local and foreign laws, statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and the like of any Governmental Entity, including common law.
Lien means any charge, claim, community or other marital property interest, condition, equitable interest, lien (whether voluntary, involuntary, statutory, or other), option, pledge, hypothecation, preference, priority, security interest, mortgage, right-of-way, easement, encroachment, servitude, conditional sale or other title retention arrangement, security or other deposits, right of first option, right of first refusal, or restriction of any kind, including, without limitation, any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.
Losses means any loss, liability, obligation, demand, claim, Action, cause of action, damage, deficiency, tax, judgment, award, assessment, diminution in value, penalty, fine, cost or expense of whatever kind, in each case, whether or not arising out of third party claims (including interest, penalties, and reasonable professional fees).
Person means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any governmental entity or any similar entity.
Proceeding means any Action, suit, claim, demand, summons, citations or subpoena, hearing, audit, public meeting or inquiry of any kind or nature whatsoever, civil, criminal, administrative, regulatory or otherwise, at Law or in equity, whether or not such matter is before a governmental entity or any other Person.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement as of the date first set forth above.
Buyer | ||
Athens Acquisition LLC | ||
By: | /s/ Matthew Cullen | |
Name: | Matthew Cullen | |
Title: | President | |
Sellers | ||
Ultra Master Ltd | ||
By: | /s/ Christopher Pucillo | |
Name: | Christopher Pucillo | |
Title: | President | |
Solus GT Investment LLC | ||
By: | /s/ Christopher Pucillo | |
Name: | Christopher Pucillo | |
Title: | President | |
Solus Core Opportunities Master Fund Ltd | ||
By: | /s/ Christopher Pucillo | |
Name: | Christopher Pucillo | |
Title: | President | |
SOLA LTD | ||
By: | /s/ Christopher Pucillo | |
Name: | Christopher Pucillo | |
Title: | President |
Schedule 1.2
Seller |
Purchase Price | |||
Ultra Master Ltd |
$ | 2,981,430 | ||
Solus GT Investment LLC |
$ | 7,787,070 | ||
Solus Core Opportunities Master Fund Ltd |
$ | 7,787,160 | ||
SOLA LTD |
$ | 31,067,010 | ||
|
|
|||
Total |
$ | 49,622,670 | ||
|
|
Schedule 3.4
Seller |
Series A-1 Common Stock |
Series A-1 Preferred Stock |
Series A-2 Preferred Stock |
Series A-2 Preferred Warrants |
||||||||||||
Ultra Master Ltd |
33,127 | | | | ||||||||||||
Solus GT Investment LLC |
| 86,523 | | | ||||||||||||
Solus Core Opportunities Master Fund Ltd |
| 86,524 | | | ||||||||||||
SOLA LTD |
| 117,953 | 40,579 | 186,657 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
33,127 | 291,000 | 40,579 | 186,657 | ||||||||||||
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Exhibit 99.5
ATHENS ACQUISITION LLC
1086 Woodward Avenue
Detroit, Michigan 48226
January 16, 2013
Mr. George Boyer
Greektown Superholdings, Inc.
555 East Lafayette
Detroit, Michigan 48226
Dear Mr. Boyer:
I am writing on behalf of Athens Acquistion LLC (Athens Acquisition) to advise you of our intentions with regard to Greektown Superholdings, Inc. (the Company).
Athens Acquisition is an entity formed specifically to acquire an interest in the Company and is owned by Daniel Gilbert. Mr. Gilbert is the Chairman and Founder of Rock Ventures, which includes Quicken Loans Inc., the NBAs Cleveland Cavaliers and Rock Gaming in addition to several other business interests.
The Greektown Casino-Hotel represents a unique intersection of our investment activity in casino gaming and Detroit real estate. Rock Gamings primary focus is to develop urban casinos that are integrated into city centers to complement and enhance regional tourism. We entered the gaming industry in 2009 by successfully leading an effort to bring full-service casinos to the State of Ohio. With joint venture partner, Caesars Entertainment, we have developed urban casino properties in Cleveland, Ohio (opened May 2012) and Cincinnati, Ohio (scheduled to open in March 2013). This joint venture is also developing a racino at Thistledown Racetrack outside Cleveland, and owns Turfway Park in Florence, Kentucky, near Cincinnati. In addition, we are developing an urban casino in Baltimore, Maryland (opening expected in 2014) with Caesars Entertainment.
We are also prominent advocates for downtown Detroit. Over the past three years we have acquired nearly 3 million square feet of commercial real estate, have committed hundreds of millions of dollars to redevelopment and moved more than 7,000 team members into Downtown Detroit.
Athens Acquisition acquired a small position in the Company in mid-2012. More recently, Athens Acquisition entered into an agreement to purchase a large block of the Companys shares on December 20, 2012. Upon closing of this transaction, Athens Acquisition is expected to have majority voting control over the Company. Licensing materials for Mr. Gilbert and I have been submitted to the Michigan Gaming Control Board in conjunction with this acquisition. For clarity, Caesars Entertainment is not involved in this transaction.
Athens Acquisition is willing to acquire the capital stock held by all remaining Company shareholders for a purchase price of $81.00 per share. We believe this proposal provides significant value for the Companys shareholders in light of recent similar transactions and comparable publicly trading companies and also represents a significant premium over recently reported trades in the Companys shares.
Greektown Superholdings, Inc.
January 16, 2013
Page 2
We recognize that minority shareholder protection is an appropriate Board concern. Accordingly, shareholders who decline our proposal would be entitled to participate in any sale of the Company on terms that are no less favorable than those received by Athens Acquisition. Declining shareholders would also be entitled to the fair market value of their shares in the event that Athens Acquisition obtains ownership of the entire Company through a merger.
In exchange, we respectfully request that the Board cause the Company to terminate the Rights Agreement that it entered into on December 30, 2012 (the Rights Agreement). Although Athens Acquisitions most recent agreement pre-dates the Rights Agreement, and Athens Acquisition is therefore deemed under the Rights Agreement to be the current beneficial owner of shares representing majority voting power, we feel that cooperation between Athens Acquisition and the Board is the best path toward a solution that benefits all stakeholders.
This letter, of course, does not set forth all of the terms and provisions of a transaction. The precise terms of any transaction contemplated herein remain subject to further discussion, and nothing herein should be construed as a binding offer or as imposing any binding obligation on the Company or Athens Acquisition. Please also note that this letter should not be deemed to prejudice whatever rights we may have at law or in equity with respect to the Company (including our rights as a shareholder of the Company).
Athens Acquisition is prepared to expend significant resources to enhance this asset that we recognize is of great importance to the community and local economy. In light of our teams reputation as business operators, investors and advocates for downtown Detroit and our track record in urban casino development, we feel strongly that Athens Acquisition is the right purchaser for the Greektown Casino-Hotel.
Please contact me to discuss this proposal in greater detail. We look forward to working with you to provide a win for everyone involved.
Sincerely,
ATHENS ACQUISITION LLC
/s/ Matthew Cullen
Matthew Cullen
President
cc: Board of Directors
Exhibit 99.6
January 28, 2013
Athens Acquisition LLC
1086 Woodward Avenue
Detroit, Michigan 48226
Attn: Matthew Cullen, President
Re: | Athens Acquisition LLC Proposal to Greektown Superholdings, Inc. |
Dear Mr. Cullen:
We write in our capacity as members of the special committee (the Special Committee) of the board of directors of Greektown Superholdings, Inc. (Greektown or the Company) regarding your letter dated January 16, 2013 (the Athens Letter), wherein Athens Acquisition LLC (Athens) (i) indicated that it had entered into transactions to acquire majority voting control of Greektown and (ii) proposed to acquire the capital stock held by all remaining Greektown stockholders for a purchase price of $81.00 per share (the Athens Offer).
As you recognized in your letter, the protection of the Greektown stockholders who are not affiliated with Athens or its affiliates is of paramount importance to the Greektown board. Greektowns directors have well-defined duties under Delaware law in connection with the receipt of an offer such as Athens. As is customary for a Delaware corporation in these situations, and to assist the directors in fulfilling their legal duties, the board recently formed a Special Committee of independent directors to conduct a full review of the Athens Offer and Greektowns strategic alternatives. In order to assist the Special Committee in its independent work, the Special Committee has retained Lazard Freres & Co. LLC to act as its financial advisor and Sullivan & Cromwell LLP to act as its special legal counsel.
Prior to forming a view on and making any recommendations with respect to the Athens Offer, the Special Committee and its advisors must first fully understand the Athens Offer so that they can assess its adequacy relative to Greektowns value and any other strategic alternatives available to Greektown and its stockholders. To that end, the Special Committee requests that Athens work with the Special Committee and its advisors to provide additional information regarding the Athens Offer and its previously undisclosed transactions to acquire majority voting control of Greektown (as earlier requested in Greektowns Chairman, George Boyers, letter to Athens. dated January 17, 2013). For example, the Company has three different classes of stock and multiple classes of warrants currently outstanding, each with different voting and economic rights, and the Special Committee would like to understand how the Athens Offer of $81 per share applies to each class of stock and, if applicable, the warrants. We will want to explore other issues as well.
Athens Acquisition LLC
Once the Special Committee receives and takes the time necessary to digest all of the relevant information, it plans (i) to form a view on the adequacy of the Athens proposal and on any strategic alternatives available to Greektown and its stockholders; (ii) to communicate to you our position; and (iii) to communicate with stockholders concerning our findings and recommendations. In that regard, the Special Committee urges Greektown stockholders not to take any action in relation to the Athens Offer until the Special Committee has had the opportunity to complete its work.
The Special Committee looks forward to engaging with Athens in a substantive discussion of its proposal as soon as possible.
[Signature page follows.]
Athens Acquisition LLC
Sincerely, |
/s/ John Bitove |
John Bitove, Member of the Special Committee of Greektown Superholdings, Inc. |
/s/ Darrell Burks |
Darrell Burks, Member of the Special Committee of Greektown Superholdings, Inc. |
/s/ Soohyung Kim |
Soohyung Kim, Chairman of the Special Committee of Greektown Superholdings, Inc |
.
cc: | Albert Garner |
(Lazard Freres & Co. LLC) |
Keith Pagnani |
(Sullivan & Cromwell LLP) |
Exhibit 99.7
ATHENS ACQUISITION LLC
1086 Woodward
Avenue Detroit,
Michigan 48226
January 29, 2013
Mr. Darrell Burks
Greektown Superholdings, Inc.
555 East Lafayette
Detroit, Michigan 48226
Dear Darrell:
This letter is in response to the letter dated January 28, 2013 from the special committee of the Board of Directors of Greektown Superholdings, Inc. (the Company) to Athens Acquisition LLC (Athens).
The proposal contained in our letter of January 16, 2013 was not intended to be a tender offer. As discussed, this will confirm that Athens withdraws that proposal and the committee and the Board need not consider it.
We appreciate the opportunity to have met with you today.
Sincerely,
ATHENS ACQUISITION LLC |
/s/ Matthew Cullen |
Matthew Cullen President |
Cc: George Boyer
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