Agreement
This Agreement (this "Agreement") is dated as of January
11, 2002 by and among each of the parties listed on Exhibit A
attached hereto (each a "Holder" and collectively, the
"Holders").
W I T N E S S E T H :
WHEREAS, each Holder is the beneficial owner of certain
7.5% Convertible Subordinated Notes due 2007 (the "Notes") issued
by Allied Riser Communications Corporation (the "Issuer"); and
WHEREAS, the Holders desire to set forth certain mutual
agreements concerning their respective ownership of the Notes.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each
Holder hereby agrees as follows:
(1) Each Holder acknowledges that, as of the date
hereof, it is the beneficial owner of Notes in the aggregate
principal amount set forth on Exhibit A.
(2) Each Holder agrees that it shall not sell or
otherwise transfer or otherwise offer to sell or otherwise
transfer (except by way of a distribution to a partner, investor,
member, shareholder or other affiliate or another Holder) all or
any part of its interest in the Notes (a "Restricted Transfer"),
except in accordance with this Agreement.
(3) If any Holder (a "Selling Holder") receives a bona
fide offer for some or all of its Notes ("Offered Notes") that
would result in a Restricted Transfer, the Selling Holder shall
promptly notify the other Holders of the price (the "Offer
Price") at which it intends to so sell or transfer the Offered
Notes (a "Transfer Notice").
(4) If, within one (1) business day after the date of
the Transfer Notice, any of the Holders ("Purchasing Holders")
gives notice of its willingness to purchase the Offered Notes of
the Selling Holder at the Offer Price, then the Selling Holder
shall sell its interest in those Offered Notes to such Purchasing
Holders at the Offer Price. If more than one Purchasing Holder
so indicates its willingness to purchase at the Offer Price, then
those Purchasing Holders shall purchase the Offered Notes in
equal shares or as they shall otherwise agree among themselves.
(5) The Purchasing Holder(s) shall have three (3)
business days from the date of delivery of its (their) notice of
willingness to settle the purchase of the Offered Notes.
(6) If no Holder gives notice of its willingness to
purchase the Offered Notes within the one (1) business day period
after the delivery of the Transfer Notice, then the Selling
Holder may sell its interest in the Offered Notes to the third
party that originally made the offer, at no less than the Offer
Price. If the Selling Holder does not sell its interest in the
Notes in accordance with the foregoing, then the terms of this
Agreement shall continue to apply to the Offered Notes.
(7) This Agreement shall be governed by the laws of the
State of New York. Any legal action or proceeding in connection
with this Agreement or the performance hereof may be brought in
the state and federal courts located in the Borough of Manhattan,
City, County and State of New York, and the parties hereby
irrevocably submit to the non-exclusive jurisdiction of such
courts for the purpose of any such action or proceeding
(8) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same agreement.
(9) All notices under this Agreement shall be in
writing and given by facsimile transmission, with a copy sent by
regular mail, or by email, with a copy given by facsimile
transmission (but effective on receipt of the email) in each case
to the Holders at the addresses and facsimile numbers listed on
Exhibit A. A copy of any notice hereunder shall also be sent to:
Xxxxxx & Xxxxxx LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxx, Esq., Facsimile Number (212) 480-
8421.
(10) This Agreement may be terminated on five (5) days'
prior notice by a writing sent by Holders who at the time of the
notice hold at least 2/3 in principal amount of all of the Notes
held by the Holders who are party to this Agreement. In
addition, this Agreement shall automatically expire on December
31, 2002.
[Signature page follows]
2
IN WITNESS WHEREOF, the undersigned have executed this
agreement as of the date first set forth above.
CRT CAPITAL GROUP, LLC
By: /s/ Xxxxxx Xxx
---------------------------
Xxxxxx Xxx
MAGTEN ASSET MANAGEMENT CORP.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Xxxxxx Xxxxxxx
PENINSULA PARTNERS, L.P.
By: /s/ R. Xxx Wesehler
---------------------------
R. Xxx Wesehler
GUARDFISH, LLC
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Xxxx X. Xxxxxxx
SAGAMORE HILL HUB FUND, LTD
By: /s/ Xxxxxx Xxxxx
---------------------------
Xxxxxx Xxxxx
3
ANDA PARNTERSHIP, an Illinois
General partnership
By Its Partners:
Xxx Only Trust
By: /s/ Xxxx Xxxxxx
-----------------------
Xxxx Xxxxxx
Xxx and Descendants Trust
By: /s/ Xxxx Xxxxxx
-----------------------
Xxxx Xxxxxx
4
Exhibit A
Holder Principal Office Amount
-----------------------------------------------------------------------------
ANDA Partnership, 2 N. Riverside Plaza, $20,000,000
an Illinois Suite 1500
General partnership Xxxxxxx, XX 00000
CRT Capital Group, LLC One Xxxxxxx Place $12,075,000
Xxxxxxxxx, XX 00000
Guardfish, LLC 000 Xxxxxx Xxxxxx, Xxxxx 000 $10,000,000
Xxxxxxxxx, XX 00000
Magten Asset Management, 00 Xxxx 00xx Xxxxxx, Xxxxx Xxxxx $15,500,000
Corp. Xxx Xxxx, XX 00000
Peninsula Partners, L.P. 000X Xxxx Xxxx Xxxxxx $19,700,000
Xxxxxxxxxxxxxxx, XX 00000
Sagamore Hill Hub Fund, Ltd. Xxxxxx & Xxxxxx $15,050,000
X.X. Xxx 000, Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Georgetown, Grand Cayman
Cayman Islands
$15,050,000
5
03872001.AC5
