Note Parties and has
sufficient knowledge and experience in financial and business matters and is
capable of evaluating the merits and risks of investing in, and is able and
prepared to bear the economic risk of having invested in, the Notes.
(g)
Each Noteholder understands that the
Issuers will rely upon the accuracy and truth of the foregoing representations
and warranties and each Noteholder hereby consents to such reliance.
(h)
Each Noteholder acknowledges that Notes
shall bear a legend substantially in the following form:
THE FOLLOWING INFORMATION IS PROVIDED PURSUANT TO TREASURY REGULATION
SECTION 1.1275-3. THIS NOTE WAS ISSUED WITH 'ORIGINAL ISSUE DISCOUNT' WITHIN THE
MEANING OF SECTION 1272, ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED. UPON WRITTEN REQUEST, THE ISSUERS WILL PROVIDE TO ANY NOTEHOLDER OF THE
NOTE (1) THE ISSUE PRICE AND ISSUE DATE OF
113
THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE, AND (3) THE
ORIGINAL YIELD TO MATURITY OF THE NOTE. SUCH REQUEST SHOULD BE SENT TO THE
ISSUER REPRESENTATIVE AT THE FOLLOWING ADDRESS (OR AT SUCH OTHER ADDRESS AS
MAY BE SPECIFIED IN WRITING FROM TIME TO TIME BY THE ISSUERS): EMERGE ENERGY
SERVICES OPERATING LLC, 6000 WESTERN PLACE, SUITE 465, FORT WORTH TEXAS, 76107,
ATTENTION: DEBORAH DEIBERT.
(i)
Each Noteholder acknowledges that Notes
shall bear a legend substantially in the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH BELOW. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER
OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER
THE SECURITIES ACT.
BY ITS ACCEPTANCE HEREOF, THE NOTEHOLDER OF THIS NOTE (I) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
OR (C) IT IS AN "INSTITUTIONAL" ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER REGULATION D PROMULGATED UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR"), AND (2) AGREES THAT IT WILL NOT WITHIN ONE YEAR
AFTER THE LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE
ON WHICH ANY ISSUER OR ANY OF ITS RESPECTIVE AFFILIATES OWNED THIS NOTE, OFFER,
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT, SUBJECT TO THE RESTRICTIONS IN
THE NOTE PURCHASE AGREEMENT, (A) (I) TO ANY ISSUER OR ANY SUBSIDIARY THEREOF,
(II) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT INSIDE THE UNITED STATES TO A PERSON WHOM