LLC Warrant Purchase Agreement

Exhibit 10.9


THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN EXEMPTION FROM SUCH REQUIREMENT UNDER SUCH ACT.


AMENDED AND RESTATED
HF INVESTMENT HOLDINGS, LLC
HF CLASS C UNITS PURCHASE WARRANT


as of September 27, 1999


THIS CERTIFIES that, for value received, Credit Suisse First Boston Management Corporation, a Delaware corporation ("CSFB"), is the owner of this Warrant to purchase from HF INVESTMENT HOLDINGS, LLC, a Delaware limited liability company (the "Company"), fifty thousand (50,000) of the Company's HF Class C Units (the "Units"). This warrant (the "Warrant") has been issued to CSFB in exchange for five million dollars ($5,000,000). Except as otherwise provided in Section 2.1 hereof, the aggregate exercise price of this Warrant is equal to five hundred dollars ($500) (the "Full Exercise Price"). In the event that this Warrant is exercised in part, and not in full, and except as otherwise provided in Section 2.1 hereof, the aggregate exercise price in respect of such partial exercise shall be (a) one cent ($0.01) MULTIPLIED BY (b) the number of Units as to which this Warrant is being exercised (the "Partial Exercise Price"). Each of the Full Exercise Price and the Partial Exercise Price is sometimes referred to herein as an "Exercise Price."


1. EXERCISE OF WARRANT.


1.1 NOTICE OF OCCURRENCE OF A LIQUIDITY EVENT.


(a) NOTICE OF LIQUIDITY EVENT NOTICE EVENT. In the event of
the obtaining of knowledge of a Liquidity Event Notice Event by any
Administrative Member, the Company will, within five (5) Business Days
after the occurrence of such event, give notice of such Liquidity Event
Notice Event to the holder of this Warrant. Each such notice shall:


(i) be dated the date of the sending of such notice;


(ii) be executed by an Administrative Member;


(iii) refer to this Section 1.1(a); and


(iv) specify, in reasonable detail, the nature and date of
the Liquidity Event Notice Event and the Liquidity
Event which would result therefrom.


(b) LIQUIDITY EVENT NOTICE. In the event of a Liquidity Event,
the Company will, within five (5) Business Days after the occurrence of
such event, or in the case of any Liquidity Event the consummation or
finalization of which would involve any action of the Company, at least
thirty (30) days prior to such Liquidity Event (the "Liquidity Event
Notice Date"), give notice of such Liquidity Event to the holder of
this Warrant. Each such notice shall:


(i) be dated the date of the sending of such notice;


(ii) be executed by an Administrative Member;


(iii) refer to this Section 1.1(b);


(iv) specify, in reasonable detail, the nature and date
(or anticipated date) of the Liquidity Event; and


(v) describe in detail the right of the holder of this
Warrant to exercise as described in Section 1.2
hereof and the right of such holder pursuant to
Section 1.3 to specify the date that any exercise of
the Warrant elected by such holder shall be deemed to
be effected.


1.2 EXERCISE. Subject to the provisions of Section 1.5 hereof, this Warrant may be exercised by the registered holder hereof at any time within thirty (30) days following the occurrence of a Liquidity Event, but in no event after September 26, 2024 (the "Expiration Date"), in whole or in part, by the surrender on any Business Day following the Liquidity Event Notice Date of this Warrant, duly endorsed (unless endorsement is waived by the Company), at the principal office of the Company (or at such other office or agency of the Company as it may designate by notice in writing to the registered holder hereof at such holder's last address appearing on the books of the Company) and payment of the Exercise Price. At the time of any such exercise, the holder shall elect the time at which such exercise shall be effective in accordance with Section 1.3 hereof, and if no such election is made, such holder shall be deemed to have elected the earliest date upon which such exercise could have become effective in accordance with Section 1.3. Upon the partial exercise of this Warrant, the Company at its expense will forthwith issue and deliver to the holder of this Warrant a new Warrant exercisable for a number of Units equal to (x) the maximum number of Units for which, immediately prior to such partial exercise, this Warrant could be exercised MINUS (y) the number of Units issued by the Company to the holder as a result of such partial exercise.


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1.3 WHEN EXERCISE EFFECTIVE. Exercise of this Warrant shall be deemed to have been effected, at the option of the holder of the Warrant, upon either:


(a) the date of, and at the time immediately preceding, the
occurrence of the Liquidity Event giving rise to such exercise right;
or


(b) if such Business Day follows the date of such Liquidity
Event, the Business Day on which the Warrant shall have been
surrendered to the Company as provided in Section 1.2 of this Warrant;


PROVIDED, HOWEVER, that in no case shall any exercise of the Warrant become effective unless the Liquidity Event giving rise to the right to exercise the Warrant shall have occurred. At such time as exercise of this Warrant shall be deemed to have been effected, the holder hereof shall be deemed to be owner of the Units issuable upon such exercise.


1.4 DEEMED EXERCISE UPON INSOLVENCY EVENT. This Warrant shall automatically be deemed to have been exercised in full by the registered holder hereof upon the occurrence of an Insolvency Event, without any action on the part of the registered holder (including, without limitation, the surrender at such time of this Warrant or the payment at such time of any Exercise Price), and following such deemed exercise, this Warrant shall cease to be of any further force or effect.


1.5 INTEREST IN EXCESS OF PERMISSIBLE PURCHASER OWNERSHIP LEVEL. Notwithstanding any other provision of this Warrant (other than Section 1.4) or the Company Agreement, in the event and to the extent that the Tentative Purchaser Ownership Level would, at any time at or after a Liquidity Event that this Warrant is owned by or for the benefit of CSFB, any Affiliate of CSFB or any Holder Transferee thereof, exceed the Permissible Purchaser Ownership Level, the following provisions shall apply:


(a) GENERAL. That the portion of this Warrant which would
otherwise represent Excess Shares will not be exercisable, in which
event the number of Excess Shares will be recomputed such that the
Excess Shares which are not issuable as a result of this Section 1.5(a)
are subtracted from both the numerator and the denominator of the
Tentative Purchaser Ownership Level definition;


(b) EXCESS SHARE TRANSFER RIGHTS. At the request of the holder
of this Warrant, to the extent there has been a change in law or
enforcement of the BHCA or the IBA, the Company shall (i) use its best
efforts to assist such holder in locating one or more Exempt
Transferees for that portion of this Warrant representing the right to
receive Excess Shares (determined, solely for this purpose, (x)
immediately after giving effect to any transfer of the Convertible Note
Shares to an Exempt Transferee (as defined in Section 6.1 of the Note
Agreement) pursuant to and in accordance with Section 7.10(b) of the
Note Agreement, to the exent such transfer occurs prior to or
simultaneously with any


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transfer pursuant to this Section 1.5(b), and (y) without giving effect
to the recomputation of the number of Excess Shares as contemplated by
Section 1.5(a) of this Warrant), and (ii) consent to such holder
effecting such transfer(s); PROVIDED, HOWEVER, that no such transfer
shall be effective until the transferee has delivered to the Company a
written acknowledgement and agreement in form and substance reasonably
satisfactory to the Company that any shares of stock of HF Holdings to
be distributed by the Company to such transferee, following exercise by
such transferee of the Warrant, shall be subject to all the provisions
of the Stockholders Agreement and that such transferee is bound thereby
and a party thereto to the same extent as the holder from whom the
transfer was made.


(c) In the event that any portion of the Warrant becomes not
exercisable by virtue of clause (a) above, the right to exercise such
unexercisable portion shall be suspended until, and become effective
upon, the earliest time and to the maximum extent consistent with the
Tentative Purchaser Ownership Level not exceeding, at the time of the
effectiveness of any right to exercise, the Permissible Ownership
Level.


1.6 DELIVERY OF CERTIFICATES. If the Units are represented by certificates, as soon as practicable after exercise of this Warrant, and in any event within five (5) Business Days thereafter, the Company at its expense (including the payment by it of any applicable issue taxes) will cause to be issued in the name of and delivered to the holder hereof, a certificate or certificates for the number of duly authorized and validly issued Units to which such holder shall be entitled upon such exercise.


2. ADJUSTMENT OF UNIT EXERCISE PRICE AND NUMBER OF UNITS.


2.1 IN GENERAL. In the event that the Company shall, on or after the date hereof:


(a) make a distribution of additional HF Units in respect of
HF Units;


(b) reclassify by subdivision its outstanding HF Units into a
greater number of HF Units; or


(c) reclassify by combination its outstanding HF Units into a
smaller number of HF Units;


then, and in each such case, the Unit Exercise Price in effect at the time of the record date for such distribution or of the effective date of such subdivision or combination shall be adjusted to that price determined by multiplying the Unit Exercise Price in effect immediately prior to such event by the quotient of:


(i) the total number of outstanding HF Units immediately
prior to such event; DIVIDED BY


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(ii) the total number of outstanding HF Units immediately
after such event.

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