EXHIBIT 15
April 30, 2006
K-Two Holdco Limited
Coral Towers
Paradise Island, The Bahamas
Gentlemen:
Reference is made to (i) the Amended and Restated Agreement and Plan of
Merger (the "Agreement"), dated as of the date hereof, among ▇▇▇▇▇▇▇
International Limited (the "Company"), an international business company
incorporated under the laws of the Commonwealth of The Bahamas, K-Two Holdco
Limited, an international business company incorporated under the laws of the
Commonwealth of The Bahamas ("Newco"), and K-Two Subco Limited, an international
business company incorporated under the laws of the Commonwealth of The Bahamas
and a wholly-owned subsidiary of Newco and (ii) our letter to Newco, dated as of
March 20, 2006, pursuant to which, and subject to the terms and conditions
thereof, we committed to contribute or cause to be contributed to Newco the
aggregate amount set forth therein (the "Original Commitment Letter").
Capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the Agreement.
This letter agreement shall become effective concurrently with the
execution and delivery of the Agreement by each party thereto. We and Newco
hereby covenant, agree and acknowledge that, at such time as this letter
agreement becomes effective in accordance with the immediately preceding
sentence, this letter agreement shall supersede the Original Commitment Letter
in all respects and that the Original Commitment Letter shall terminate
automatically and cease to be of any force or effect.
In the event of the satisfaction or waiver of the conditions precedent
to Newco's obligation to consummate the Merger set forth in Article VIII of the
Agreement (it being agreed for purposes of this letter agreement that any
condition precedent the satisfaction of which is dependent upon the contribution
contemplated by this paragraph and which shall become satisfied upon the making
of such contribution shall be deemed to have been satisfied), we agree that at
the Closing we will contribute or cause to be contributed to Newco an aggregate
amount of $372,000,000 (such sum, the "Commitment Amount"), which amount shall
be used by Newco, together with the financing proceeds from the Debt Financing
Commitments and the equity proceeds from the other Equity Financing Commitments
to fund the Merger Consideration, pay any other amounts to be paid by Newco to
any person on the Closing Date on the terms set forth in the Agreement and pay
for related expenses. We will not be under any obligation pursuant to the
preceding sentence unless and until the conditions precedent to Newco's
obligation to consummate the Merger set forth in Article VIII of the Agreement
are satisfied or waived. We will not be under any obligation under any
circumstances to contribute or cause to be contributed more than the Commitment
Amount to Newco.
Equity Commitment Letter
Notwithstanding anything that may be expressed or implied in this
letter agreement, Newco, by its acceptance of the benefits hereof, covenants,
agrees and acknowledges that, no person other than the undersigned shall have
any obligation hereunder and that, notwithstanding that the undersigned is a
partnership, no recourse hereunder or any documents or instruments delivered in
connection herewith shall be had against any current or future officer, agent or
employee of the undersigned, against any current or future general or limited
partner of the undersigned or any current or future director, officer, employee,
general or limited partner, member, Affiliate or assignee of any of the
foregoing, whether by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any statute, regulation or other
applicable law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred by
any current or future officer, agent or employee of the undersigned or any
current or future general or limited partner of the undersigned or any current
or future director, officer, employee, general or limited partner, member,
Affiliate or assignee of any of the foregoing, as such, for any obligations of
the undersigned under this letter agreement or any documents or instruments
delivered in connection herewith or for any claim based on, in respect of or by
reason of such obligations or their creation.
Each of the undersigned hereby represents and warrants as follows:
(a) The undersigned is a limited partnership duly organized, validly
existing and in good standing (to the extent its jurisdiction of organization
recognizes the concept of good standing) under the laws of its jurisdiction of
organization.
(b) The execution, delivery and performance of this letter agreement by
the undersigned is within its limited partnership powers and has been duly
authorized by all necessary action, and no other proceedings or actions on the
part of the undersigned are necessary to perform its obligations hereunder. This
letter agreement is a valid and binding obligation of the undersigned
enforceable against it in accordance with its terms, except as may be limited by
any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally or
by general principles or equity.
(c) The execution, delivery and performance by the undersigned of this
letter agreement do not and will not (i) violate the organizational documents of
the undersigned, (ii) violate any applicable Law or court or governmental order
to which the undersigned or any of its assets are subject or (iii) require any
consent or other action by any Person under, constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result
in any breach of or give rise to any right of termination, cancellation,
amendment or acceleration of, any right or obligation of the undersigned.
(d) The undersigned has, and will have on the Closing Date, the funding
necessary to fund the Commitment Amount.
In the event that the Agreement is terminated pursuant to Article IX of
the Agreement, this letter agreement shall automatically terminate and be of no
further force or
Equity Commitment Letter
effect without further action by the parties hereto on the date that is 45 days
subsequent to the termination of the Agreement if no claim for performance or
monetary damages has been made hereunder prior to the 45th day subsequent to the
termination of the Agreement. If such a claim has been made prior to the date
that is 45 days subsequent to the termination of the Agreement, this letter
agreement shall terminate upon final resolution of such claim.
We shall be entitled to assign all or a portion of our obligations
hereunder to one or more Affiliates that agree to assume our obligations
hereunder, provided that we shall remain obligated to perform our obligations
hereunder to the extent not performed by such Affiliate(s). This letter
agreement shall not be assignable by you without our prior written consent.
Notwithstanding any other term or condition of this letter agreement,
our liability under this letter agreement shall be limited to monetary damages
only, shall be limited to a willful and material breach of this letter agreement
and under no circumstances shall our maximum liability for any reason, including
our willful and material breach of any of our commitments set forth herein,
exceed the Commitment Amount, and such damages shall not include any special,
indirect, or consequential damages.
If the express third party beneficiary hereof determines to enforce the
terms of this letter agreement as a result of a willful and material breach of
this letter agreement, such third party beneficiary must do so on a pro rata
basis against any other party to Equity Financing Commitments and Equity
Rollover Commitments that have willfully and materially breached their
obligations thereunder.
We acknowledge that the Company has relied on this letter agreement and
is an express third party beneficiary hereof and is entitled to enforce
obligations of the undersigned hereunder directly against the undersigned to the
full extent thereof. This letter agreement is not intended to, and does not,
confer upon any Person, other than Newco and the Company, rights or remedies
hereunder or in connection herewith. This letter agreement may be executed in
counterparts.
This letter agreement may not be terminated (except as otherwise
provided herein), amended, and no provision waived or modified, except by an
instrument in writing signed by us and Newco; provided that any termination,
amendment, waiver or modification that would reasonably be expected to be
adverse to the Company in any material respect (after taking into account any
other amendments, waivers or modifications proposed to be made to the other
Financing Commitments) shall require the consent of the Company.
This letter agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware. In addition, each party (i)
irrevocably and unconditionally consents and submits to the personal
jurisdiction of the state and federal courts of the United States of America
located in the State of Delaware solely for the purposes of any suit, action or
other proceeding between any of the parties hereto, or between any of the
parties hereto and the express third-party beneficiary hereof, arising out of
this letter agreement, (ii) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from such court,
(iii) waives any claim of improper venue or any claim that the courts of the
State of Delaware are an inconvenient forum for any action, suit or proceeding
Equity Commitment Letter
between any of the parties hereto, or between any of the parties hereto and the
express third-party beneficiary hereof, arising out of this letter agreement,
(iv) agrees that it will not bring any action relating to this letter agreement
in any court other than the courts of the State of Delaware and (v) to the
fullest extent permitted by Law, consents to service being made through the
notice procedures set forth in Section 10.1 of the Agreement (with the address
of the undersigned being the address set forth in the first page of this letter
agreement).
EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS LETTER AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS LETTER AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
The parties hereto shall keep the existence and terms of this letter
agreement confidential, and no party shall, without the prior approval of the
other party, make any press release or other announcement concerning the
existence or the terms of this letter agreement, except (i) as and to the extent
necessary to comply with applicable federal or state laws, (ii) in connection
with the exercise of any remedies hereunder or in any suit, action or proceeding
relating to this letter agreement or enforcement of rights hereunder, and (iii)
to the Company and its directors, officers, employees and advisors.
Equity Commitment Letter
Very truly yours,
WHITEHALL STREET GLOBAL REAL ESTATE
LIMITED PARTNERSHIP 2005
By: WH Advisors, L.L.C. 2005,
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
WHITEHALL STREET INTERNATIONAL
REAL ESTATE LIMITED PARTNERSHIP 2005
By: WH International Advisors, L.L.C.
2005, General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, L.P.
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇, L.L.C., General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
WHITEHALL STREET INTERNATIONAL
EMPLOYEE FUND 2005 (DELAWARE), L.P.
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇, L.L.C., General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[Equity Commitment Letter Signature Page]
Accepted and Agreed to
as of the date written above
K-TWO HOLDCO LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
The Company hereby consents to the termination of the Original Commitment Letter
in accordance with the second paragraph of this letter agreement.
▇▇▇▇▇▇▇ INTERNATIONAL LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
[Equity Commitment Letter Signature Page]
