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EXHIBIT 2.5
(Southeast)
PURCHASE AGREEMENT
Dated as of December 17, 1999,
by and between
TESORO PETROLEUM CORPORATION
AND
TESORO GAS RESOURCES COMPANY, INC.
AS "SELLER"
AND
EEX OPERATING LLC
AS "BUYER"
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SCHEDULES
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1A HEDGING CONTRACTS
1B PERMITTED ENCUMBRANCES
2.6(a) RETAINED LIABILITIES
4.1(b)(iv) NO CONFLICT - SELLER
4.1(b)(v) CONSENTS AND WAIVERS - SELLER
4.1(g) LITIGATION
4.1(h) LABOR MATTERS
4.1(i) TAXES
4.1(k) ABSENCE OF CERTAIN CHANGES
4.1(m)(iii) PERMITS AND LICENSES
4.1(m)(iv) EXCEPTIONS TO RIGHT TO USE ASSETS
4.1(o) SUSPENSE FUNDS
4.1(p) INSURANCE
4.1(q) CONTRACTS ON PRODUCTION
4.1(s) TAX PARTNERSHIPS
4.1(u) ENVIRONMENTAL CONDITIONS
4.1(v) CONTRACTS
4.1(x) WELLS
4.1(z) PAYOUT BALANCES
9.2 EXCEPTIONS TO PRE-CLOSING OPERATING COVENANTS
9.2(f) COMMITTED EXPENDITURES
9.4 EXCEPTIONS TO PRE-CLOSING FINANCIAL COVENANTS
EXHIBITS
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A ALLOCATED VALUES
B LEASES AND RELATED PIPELINES
C SUBSIDIARIES AND PARTNERSHIP BALANCE SHEET
D SETTLEMENT STATEMENT
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is dated December 17, 1999, but effective as of
the Effective Time, between Tesoro Petroleum Corporation, a Delaware
corporation, and Tesoro Gas Resources Company, Inc., a Delaware corporation,
collectively as "Seller", and EEX Operating LLC, a Delaware limited liability
company, as "Buyer".
WITNESSETH:
WHEREAS, Tesoro Gas Resources Company, Inc. owns all of the Membership
Interests in Tesoro Southeast LLC, a Delaware limited liability company
("Southeast"); and
WHEREAS, Tesoro Petroleum Corporation, a Delaware corporation, and
Tesoro Gas Resources Company, Inc., a Delaware corporation, collectively as
"Seller", and EEX Operating LLC, a Delaware limited liability company, as
"Buyer", and EEX Corporation, entered into a Stock Purchase Agreement (the
"Stock Purchase Agreement") dated October 8, 1999 providing for the sale by
Seller to Buyer of all shares of capital stock of Tesoro Exploration and
Production Company, a Delaware corporation ("Exploration") and Tesoro Reserves
Company, a Delaware corporation ("Reserves"), together with the partnership
interests in Tesoro E&P Company, L.P., a Delaware limited partnership (the
"Partnership"); and
WHEREAS, the Partnership owns certain assets used in the business of
the exploration, production, gathering, transportation and marketing of oil,
natural gas, condensate and associated hydrocarbons; and
WHEREAS, on the date of the Stock Purchase Agreement, Exploration and
Reserves were the two partners in the Partnership, in which Exploration was the
general partner owning a 1% interest and Reserves was the limited partner owning
a 99% interest; and
WHEREAS, the Partnership was converted into a series limited
partnership, with the entire Series C limited partnership interest being
transferred to Southeast, insofar as such interest covers the revenues,
expenses, profits and losses from the Properties described in Exhibit B; and
WHEREAS, Section 9.12 of the Stock Purchase Agreement provides for the
Parties to cooperate at no cost or liability to Buyer, to enable Seller at
Seller's election, to transfer the Operating Assets to Buyer in a manner
enabling the transfer to qualify as a part of a like-kind exchange of property
by Seller within the meaning of Section 1031 of the Code; and
WHEREAS, the Stock Purchase Agreement has been amended to provide for
such a like-kind exchange of property, among other purposes, by a First
Amendment to Stock Purchase Agreement dated December 16, 1999 (the "Amendment");
and
WHEREAS, to facilitate such a like-kind exchange transaction, Seller
has arranged to assign its interests in the proceeds of the sale of Southeast
and its interest in the Properties to 44 Exchange Services L.L.C., as a
Qualified Intermediary;
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WHEREAS, the Parties have agreed to restructure the Transaction set
forth in the Stock Purchase Agreement, to allow the separate sale of Southeast
and its interest in the Southeast Properties through the Qualified Intermediary;
and
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller all issued and outstanding Membership Interests of Southeast,
including all of Southeast's rights and interests in the Partnership and the
Properties, under the terms and conditions set forth in this Agreement and the
Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
"ACCEPTING PARTY" shall have the meaning set forth in Section 16.1(e).
"ACCOUNTS RECEIVABLE" shall have the meaning set forth in Section 13.4.
"ACTION" means any action, appeal, petition, plea, charge, complaint,
claim, suit, demand, litigation, arbitration, mediation, hearing, inquiry,
investigation or similar event, occurrence, or proceeding.
"ADJUSTMENT ASSETS AND LIABILITIES" shall mean the items set forth in
Section 2.7.
"AFFILIATE" shall have the same meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of 1934, as amended.
"AGREEMENT" shall mean this Purchase Agreement.
"ALLOCATED VALUE" shall mean the monetary value allocated to each
Property or group of Properties and the Hedging Contracts on Exhibit A.
"AMENDMENT" shall mean the First Amendment to Stock Purchase Agreement
dated December 16, 1999, by and among Tesoro Petroleum Corporation, a Delaware
corporation, Tesoro Gas Resources Company, Inc., a Delaware corporation, and EEX
Operating LLC, a Delaware limited liability company, and EEX Corporation, a
Texas corporation, for the limited purposes set forth therein
"APO" shall mean "after payout", as such payout may be established
under the respective farmout agreements, joint operating agreements,
participation interests and similar agreements affecting each Property,
including payouts providing reversionary rights of parties who have elected not
to participate in an operation under a joint operating agreement. If there are
multiple outstanding payouts affecting any particular well or Property, then the
APO interest shall mean the interests after all applicable payouts have
occurred. If at the Effective Time there are no outstanding payout balances
affecting any particular well or Property, then the listed APO interest in such
well or Property shall reflect the Partnership's WI and NRI at the Effective
Time.
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"APPLICABLE ENVIRONMENTAL LAWS" means all Applicable Laws in effect
pertaining to (i) pollution, or the protection of the environment, including
those relating to waste materials and/or hazardous substances, (ii) the
protection of Persons or property from actual or potential exposure (or the
effects of exposure) to an actual or potential spill or release of Hazardous
Substances or petroleum or produced brine or (iii) the manufacture, processing,
production, gathering, transportation, use, treatment, storage or disposal of a
Hazardous Substance or petroleum or produced brine.
"APPLICABLE LAW" means any statute, law, rule, or regulation or any
judgment, order, writ, injunction, or decree of any Governmental Authority to
which a specified Person, Operating Asset or property is subject.
"BALANCE SHEETS" shall mean the unaudited combined financial balance
sheet of Southeast and the Partnership as of June 30, 1999, attached hereto as
Exhibit C.
"BOOKS AND RECORDS" shall mean all of the following which pertain to
the conduct of the Business: books, records, manuals and other materials,
accounting books and records, continuing property records for property, plant
and equipment, land and lease files, title opinions, suspense records,
production records, any inventories of equipment and property, well files,
engineering files, maps, surveys, electric logs, seismic records, geological and
geophysical files, and all other technical data, division order files, contract
files, other files, computer tapes, disks, other storage media and records,
advertising matter, correspondence, lists of customers and suppliers, maps,
photographs, production data, sales and promotional materials and records,
purchasing materials and records, work and recent salary history for personnel,
credit records, manufacturing and quality control records and procedures, patent
and trademark files and disclosures, litigation files, leases, oil and gas
leases, deeds, easements and other instruments relating to the Business, any
copies of Tax Returns filed by or with respect to Southeast or the Partnership,
including copies of all work papers and calculations relating to Southeast and
the Partnership in support of such Tax Returns, and any comparable information
with respect to predecessors of Southeast or the Partnership to the extent
available, and copies of any other applicable accounting and tax records of the
Seller and the Partnership pertaining to the Business.
"BPO" shall mean "before payout", as such payout may be established
under the respective farmout agreements, joint operating agreements,
participation interests and similar agreements affecting each Property,
including payouts providing reversionary rights of parties who have elected not
to participate in an operation under a joint operating agreement. If at the
Effective Time there is an outstanding payout balance affecting any particular
well or Property, the listed BPO interest in such well or Property shall reflect
the Partnership's WI and NRI at the Effective Time.
"BUSINESS" shall mean the Partnership's business of exploring for,
developing, producing, gathering, transporting and marketing natural gas,
condensate and oil.
"BUSINESS DAY" shall mean any day exclusive of Saturdays, Sundays and
national holidays.
"BUYER GROUP" shall have the meaning set forth in Section 15.3.
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"BUYER'S KNOWLEDGE" shall mean knowledge of Buyer and management
employees of Buyer's ultimate parent, EEX Corporation, with knowledge of Buyer's
activities, including the negotiation of this Agreement.
"BYLAWS" shall mean a corporation's bylaws, code of regulations or
equivalent document.
"CHARTER" shall mean a company's management agreement, articles of
association, articles of incorporation, certificate of incorporation or
equivalent organizational documents.
"CLOSING" shall have the meaning set forth in Section 12.1.
"CLOSING DATE" shall have the meaning set forth in Section 12.1.
"CLOSING SETTLEMENT PRICE" shall mean the Settlement Price calculated
in accordance with the best information available to the Seller prior to
Closing, as reflected on the Settlement Statement delivered prior to Closing
pursuant to Article X and Section 13.1(a).
"CODE" shall mean the United States Internal Revenue Code of 1986 and
any successor statute thereto, as amended.
"CONSENT TO ASSIGNMENT" shall mean an existing contractual or legal
right of any third party to consent to the Partnership's assignment of a
Property to Buyer under such terms as are set forth in this Agreement.
"CONTRACTS" shall mean all of the contracts that govern or relate to
the ownership or operation of the Operating Assets (including without
limitation, the wells, facilities and equipment associated therewith and the
production therefrom, acreage contribution agreements, assignments, bidding
agreements, bottom-hole agreements, contribution agreements, drilling contracts,
dry-hole agreements, exploration agreements, development agreements, farm-in and
farmout agreements, gas balancing agreements, joint venture agreements,
production, sales, marketing and/or brokerage contracts, gas processing
agreements, operating agreements, participation agreements, service contracts,
storage contracts, gathering agreements, transportation agreements, treating
contracts, water rights agreements and the unitization, unit operating,
communitization and pooling declarations, agreements and orders that create or
govern units). To the extent that Seller, Southeast or the Partnership have
rights of indemnification or warranty rights with respect to any Operating Asset
or any part of an Operating Asset, the same shall be included in the meaning of
"Contracts."
"DAMAGES" shall mean any and all claims, actions, causes of action,
demands, assessments, losses, damages, liabilities, judgments, settlements,
penalties, costs, and expenses (including reasonable attorneys' fees and
expenses, expert fees and expenses and court costs), of any nature whatsoever.
"EFFECTIVE TIME" shall mean July 1, 1999, at 12:00 a.m. local time for
each Operating Asset.
"ENCUMBRANCE" shall mean any interest (including any security
interest), pledge, mortgage, lien, charge, adverse claim or other right of third
Persons.
"ENVIRONMENTAL CONDITIONS" shall have the meaning set forth in Section
7.3 of the Stock Purchase Agreement.
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"EXPLORATION LLC" shall mean Tesoro Exploration and Production LLC, a
Delaware limited liability company.
"FINAL SETTLEMENT PRICE" shall mean the Settlement Price calculated in
accordance with the best information available to the Parties during the one
hundred twenty (120) day period after Closing, as reflected on the Final
Statement agreed upon pursuant to Article XIII.
"FINAL STATEMENT" shall mean the final accounting statement to be
agreed upon by the Parties no later than one hundred twenty (120) days after
Closing pursuant to Section 13.1(b).
"FINANCIAL ASSETS AND LIABILITIES" shall mean the assets, liabilities
and other financial items on the Balance Sheets, effective as of 11:59 p.m. on
June 30, 1999, (i) as adjusted for revenues, income, expenses and other assets
and liabilities incurred between the Effective Time and the Closing Date and
included within the Adjustment Assets and Liabilities, and (ii) as adjusted for
the Pre-Closing Financial Adjustments and (iii) as otherwise adjusted as
provided herein. The term "Financial Assets" shall not include any assets,
liabilities or other financial items included within the Operating Assets.
"GAAP" shall mean U.S. generally accepted accounting principles, unless
expressly described otherwise.
"GOVERNMENTAL AUTHORITY" shall mean any international, national,
Federal, state, municipal or local government, governmental authority,
regulatory or administrative agency, governmental commission, department, board,
bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body.
"GOVERNMENTAL ORDER" shall mean any order, writ, rule, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"GRANDE" shall mean Tesoro Grande LLC, a Delaware limited liability
company.
"HAZARDOUS SUBSTANCE" means a substance, chemical, pollutant, waste or
other material (i) that consists, wholly or in part, of a substance that is
regulated as toxic or hazardous to human health or the environment under any
Environmental Law or (ii) that exists in a condition or under circumstances that
constitute a violation of any Environmental Law. "Hazardous Substance" includes
without limitation any "hazardous substance" under the Comprehensive
Environmental Response, Compensation and Liability Act, any "hazardous chemical"
under the Occupational Safety and Health Act, any "hazardous material" under the
Hazardous Materials Transportation Act, any "hazardous chemical substance" under
the Federal Water Pollution Control Act and any "hazardous waste" under the
Resource Conservation and Recovery Act.
"HEDGING CONTRACTS" shall mean those natural gas derivative pricing
contracts listed on Schedule 1A.
"INCOME TAXES" shall mean any Taxes, including franchise taxes, which
are based upon or in respect of income.
"INDEMNIFIED PARTY" shall mean any Party or other Person entitled to an
indemnity under Article XV of this Agreement, with respect to the indemnity so
owed.
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"INDEMNIFYING PARTY" shall mean a Party owing an indemnity to any other
Party or Person under Article XV of this Agreement, with respect to the
indemnity so owed.
"LENDER" shall have the meaning set forth in Section 9.12(d).
"LIABILITIES" shall mean any and all debts, claims, liabilities and
obligations of any nature whatsoever, whether accrued or fixed, absolute or
contingent, mature or unmatured or determined or indeterminable.
"MATERIAL ADVERSE EFFECT" shall mean any event with respect to, change
in, or effect on, Southeast, the Partnership or the Business which, individually
or in the aggregate, is reasonably likely to have a material adverse effect on
the Business, or the financial results of operations, assets or properties or
financial condition of Southeast and the Partnership, taken as a whole, but the
term "Material Adverse Effect" shall not include any change in market conditions
or other conditions affecting the oil and gas exploration and production
industry generally.
"MEMBERSHIP INTERESTS" shall mean shall mean all issued and outstanding
membership interests in Southeast.
"NORM" shall have the meaning set forth in Section 7.2.
"NRI" shall mean the decimal net revenue interest in oil and gas
production from a Property.
"OPERATING ASSETS" shall mean all property rights and interests of the
Partnership being sold hereunder in the lands and leases described in Exhibit
"B", as set forth in Section 2.4.
"OTHER TAXES" shall mean all Taxes other than Income Taxes.
"PARTIES" shall mean Buyer and Seller, collectively.
"PARTNERSHIP" shall mean Tesoro E&P Company, L.P., a Delaware limited
partnership.
"PARTNERSHIP AGREEMENT" means the Agreement of Limited Partnership of
the Partnership, as amended.
"PARTY" shall mean either Buyer or Seller.
"PERMITTED ENCUMBRANCES" shall include any Encumbrance which is: (i)
listed on Schedule 1B, for which a duly executed release in recordable form will
be delivered to Buyer at or before Closing; (ii) a lien securing amounts claimed
for services provided by operators or other oil field contractors which are not
yet due and owing or which are being contested in good faith, through adequate
procedures; (iii) a statutory lien arising for Taxes not yet delinquent or which
are being contested in good faith, through adequate procedures; (iv) a
reservation, exception, limitation, encumbrance or burden expressly included
within a recorded oil and gas lease constituting part of a Property with respect
to which Seller or the Partnership is not in default at Closing which does not
reduce the Partnership's NRI in such Property below the respective decimal
interests set forth in Exhibit A; (v) any royalty, overriding royalty or other
production burden affecting any Property which does not and will not reduce the
Partnership's NRI in such Property below the respective decimal interests set
forth in Exhibit A; (vi) any joint operating agreement containing terms and
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conditions reasonable and customary in the industry (other than a Preferential
Right to Purchase that is exercised prior to Closing or a required Consent to
Assignment, or a reversionary right that is not reflected in the BPO and APO
interests on Exhibit A); (vii) the right of a third party under any equipment
rental or lease contract, oilfield service contract, production sales contract
or transportation contract affecting any Property, which either may be
terminated by the parties thereto without penalty or does not extend for a term
of more than sixty days after the Closing Date; (viii) any other easement,
operating right, concurrent use right or similar encumbrance that does not
affect the Partnership's rights to a Property or reduce the production revenues
attributable thereto or increase the costs associated with ownership or
operation of that Property; and (ix) a severance tax, production tax, occupation
tax, ad valorem tax or similar tax of general application.
"PERSON" shall include any individual, trustee, firm, corporation,
partnership, limited liability company, Governmental Authority or other entity,
whether acting in an individual, fiduciary or any other capacity.
"POST-CLOSING RETURN" shall have the meaning set forth in Section
16.2(c).
"PRE-CLOSING FINANCIAL ADJUSTMENTS" shall mean those certain financial
accounting adjustments and payments set forth in Section 2.6.
"PRE-CLOSING PERIOD" shall have the meaning set forth in Section
16.2(c).
"PRE-CLOSING RETURN" shall have the meaning set forth in Section
16.2(c).
"PREFERENTIAL RIGHT TO PURCHASE" shall mean the right of any third
party under an existing contract or agreement allowing that third party to
purchase the Partnership's interest in a Property whenever Seller proposes to
transfer its interests in the Partnership under terms such as are set forth in
this Agreement and the Stock Purchase Agreement.
"PRODUCTION" shall mean all oil, natural gas, condensate, natural gas
liquids, and other hydrocarbons or products produced from or attributable to the
Properties.
"PROPERTIES" shall mean, collectively, (i) all valid and existing oil
and gas leaseholds and mineral fee rights, and all rights and interests
appurtenant thereto, which are owned by the Partnership in the lands and leases
described on Exhibit B attached hereto, including without limitation all oil and
gas WIs, NRIs, mineral fee interests, oil, gas and mineral deeds, leases and/or
subleases, royalties, overriding royalties, leasehold interests, mineral
servitudes, production payments and net profits interests, fee mineral
interests, surface estates, fee estates, royalty interests, overriding royalty
interests, or other non-working or carried interests, reversionary rights,
farmout and farmin rights, operating rights, pooled or unitized acreage, and all
other rights, privileges and interests in such oil, gas and other minerals (and
the production thereof), and other mineral rights of every nature now owned by
the Partnership in such lands and leases listed on Exhibit B hereto, (ii) all of
the contractual rights to interests described in (i) above and in all units in
which such interests are pooled, communitized or unitized, and in any other oil,
gas and/or mineral leases or assets arising pursuant to the terms of the oil and
gas leases listed on Exhibit B hereto, and any other rights and agreements or
contracts affecting or relating to interests described in (i) above, or to
Production, whether or not listed on Exhibit B, including any tenements,
appurtenances, surface leases, easements, permits, licenses, servitudes,
franchises or rights of way.
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"PROPERTY" shall mean any individual one of the Properties.
"PROPERTY TAX PERIOD" shall have the meaning set forth in Section
13.3(a).
"PROPERTY TAXES" shall have the meaning set forth in Section 13.3(a).
"PROPOSED SETTLEMENT" shall have the meaning set forth in Section
16.1(e).
"PURCHASE PRICE" shall have the meaning set forth in Section 3.1.
"QUALIFIED INTERMEDIARY" shall mean 44 Exchange Services L.L.C., in its
capacity as a qualified intermediary to implement a like-kind exchange of the
Properties under Section 1031 of the Code.
"REFUSING PARTY" shall have the meaning set forth in Section 16.1(e).
"RESERVES LLC" shall mean Tesoro Reserves Company, LLC, a Delaware
limited liability company.
"SELLER" shall mean, collectively, Tesoro Petroleum Corporation, a
Delaware corporation, and Tesoro Gas Resources Company, Inc., a Delaware
corporation.
"SELLER'S KNOWLEDGE" shall mean actual knowledge of any fact,
circumstance or condition by the officers or management employees (including
those with titles of "Manager", "Vice President" and "President" or those in the
internal legal department of Seller, Southeast and the Partnership who provide
specific advice related to the operations of the Business) of Seller, Southeast
and the Partnership involved and knowledge of any fact, circumstance or
condition which such officer or management employee would have been aware of
with the exercise of reasonable diligence and inquiry in the course of his or
her duties.
"SETTLEMENT PRICE" shall have the meaning set forth in Section 3.2.
"SETTLEMENT STATEMENT" shall mean the accounting statement calculating
the Settlement Price, to be furnished by Seller to Buyer prior to Closing,
pursuant to Article X and Section 13.1(a).
"SOUTHEAST" shall mean Tesoro Southeast LLC, a Delaware limited
liability company
"STOCK PURCHASE AGREEMENT" shall mean the Stock Purchase Agreement
dated October 8, 1999, as amended by the Amendment, by and among Tesoro
Petroleum Corporation, a Delaware corporation, Tesoro Gas Resources Company,
Inc., a Delaware corporation, and EEX Operating LLC, a Delaware limited
liability company, and EEX Corporation, a Texas corporation, for the limited
purposes set forth therein.
"STRADDLE PERIOD" shall have the meaning set forth in Section 16.1(e).
"STRADDLE RETURN" shall have the meaning set forth in Section 16.2(c).
"SUBSIDIARIES" shall mean Exploration LLC, Southeast, Grande and
Reserves LLC, collectively.
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"TAX" shall mean any federal, state, local, or foreign income, gross
receipts, license, payroll, parking, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Section 50A of the Code), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, ad valorem,
value added, alternative or add-on minimum, estimated tax, or other tax of any
kind whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not, including such item for which Liability arises as a transferee
or successor-in-interest.
"TAX CLAIM" shall have the meaning set forth in Section 16.1(c).
"TAX RETURN" shall mean any return, declaration, report, claim for
refund, information return or statement relating to Taxes, including any
schedules or attachments thereto, and including any amendment thereof.
"TAXING AUTHORITY" shall mean any Governmental Authority responsible
for the imposition or collection of any Tax.
"TESORO GROUP" shall have the meaning set forth in Section 4.1(i).
"TESORO PARENT" shall have the meaning set forth in Section 4.1(i).
"TRANSACTION" shall mean the purchase and sale of the Membership
Interests pursuant to this Agreement and the related transactions contemplated
herein.
"WI" shall mean a working interest under an oil and gas lease or other
Contract affecting a Property which shall reflect the decimal interest for
participation in the decisions, costs and risks concerning operations.
"WORKING CAPITAL" shall mean, at any time, the difference between (a)
the sum of the amounts on the line items "cash", "accounts receivable",
"inventories" and "prepayment and other" on the Balance Sheet, less (b) the sum
of the amounts on the line items "accounts payable" and "accrued liabilities" on
the Balance Sheet; all as computed in accordance with GAAP and past practice for
Southeast and the Partnership except as expressly provided herein, and in a
manner as reflected on the Balance Sheets; provided, however, that the amounts
on the line items "prepayment and other", "accounts payable" and "accrued
liabilities" on the Balance Sheet shall not include the impact of any amounts
referred to in the first proviso in Section 3.2(a)(i); and provided further,
that the stated amount of Working Capital shall be reduced by the amount of
inventories that existed as of the Effective Time.
"WORKING CAPITAL ACCOUNTS" shall mean the line items "cash", "accounts
receivable", "inventories", "prepayment and other", "accounts payable" and
"accrued liabilities" on the Balance Sheet, all as computed in accordance with
GAAP and past practice for Southeast and the Partnership, and in a manner as
reflected on the Balance Sheets; provided, however, that the line items
"prepayment and other", "accounts payable" and "accrued liabilities" shall not
include the impact of any items referred to in the first proviso in Section
3.2(a)(i).
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ARTICLE II.
PURCHASE AND SALE
2.1 SALE OF MEMBERSHIP INTERESTS. Subject to the terms and conditions
of this Agreement, Seller agrees to sell and assign to Buyer, and Buyer agrees
to purchase and pay for, at Closing, all of the Membership Interests.
2.2 EFFECT OF SALE. The sale of the Membership Interests at Closing
shall transfer to Buyer all of Seller's rights in Southeast. On the Closing
Date, Southeast shall hold certain interests, assets and liabilities, as set
forth in this Article II. Except as otherwise specifically set forth in this
Agreement, the transfer of Seller's rights in Southeast shall assign to Buyer
all of Seller's beneficial right, title, interest and obligations in and to such
interests, assets and liabilities held by Southeast.
2.3 PARTNERSHIP. On the Closing Date, Exploration LLC and Southeast
shall own the rights and interests in the Partnership, insofar as they pertain
to the Properties. Exploration LLC shall be the one percent (1%) general
partner, and Southeast shall own the entire Series C limited partnership
interest in the Partnership insofar as it pertains to allocable revenues and
expenses attributable to the Properties. The partnership rights and interests of
Southeast described in this Section 2.3 shall pass to Buyer as an attribute of
the sale of the Membership Interests pursuant to this Agreement.
2.4 OPERATING ASSETS. On the Closing Date, the Partnership shall own
the Operating Assets, subject to the Permitted Encumbrances, as follows:
(a) Exploration and Production Assets.
(i) the Properties;
(ii) All the interests in oil and gas wells described on
Exhibit A, together with an interest in the
production, compression, treating, dehydration or
processing facilities and other real or tangible
personal property appurtenances and fixtures, which
are located on the lands covered by or within the
Properties or are being used by the Partnership in
connection with the operations on the Properties or
Production;
(iii) Subject to the license granted under the License
Agreement (with respect to the rights covered
thereby), rights and interests in geological data and
records, seismic data, whether in digital or paper
format, well logs, well files, geological data,
records and maps, land and contract files and
records, accounting files, data and records,
computer hardware and software and other materials
(whether electronically stored or otherwise) used or
held for use by Seller, Southeast or the Partnership,
or any of their direct or indirect parents,
subsidiaries or other Affiliates, regarding ownership
of the Properties or operations and Production which
relate to the Properties, and other files, documents
and records which relate to the Properties;
(iv) Rights, obligations, title and interests in and to
permits, orders, contracts, abstracts of title,
leases, deeds, unitization agreements, pooling
agreements,
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operating agreements, farmout agreements,
participation agreements, division of interest
statements, division orders, participation
agreements, and other agreements and instruments
applicable to the Properties;
(v) All the rights, obligations, title and interests of
Seller in and to all easements, rights of way,
certificates, licenses and permits and all other
rights, privileges, benefits and powers conferred
upon the owner and holder of interests in the
Properties, or concerning software used in
conjunction with ownership or operation of the
Properties;
(vi) Rights, title, obligations and interests in or
concerning any gas imbalances affecting the
Properties; and
(vii) All office equipment, computer equipment, light
tables, drafting tables, drafting equipment, office
supplies, facsimile machines, pool cars and any other
equipment or furniture not herein named which is
utilized by the Partnership in its day to day
operations.
(b) Leased Assets. To the extent any of the items of office equipment
listed in Section 2.4(a) above are leased and not owned, Seller, Southeast and
the Partnership shall use their best efforts to cause such leases to be assigned
to Buyer at Closing.
2.5 FINANCIAL ASSETS AND LIABILITIES. On the Closing Date, the
Partnership shall own the Financial Assets and Liabilities. Southeast shall be
allocated its share of the Partnership's respective Financial Assets and
Liabilities attributable to ownership and operation of the Properties in
proportion to its ownership of the Partnership's interests in the Properties.
The Financial Assets and Liabilities at Closing of the Partnership and each
partner in the Partnership shall be computed by Seller in accordance with GAAP,
and shall be allocated to the Properties and the partners in the Partnership in
accordance with the Partnership Agreement. The Financial Assets and Liabilities
shall be adjusted from those set forth on the Balance Sheet to reflect certain
Pre-Closing Financial Adjustments and the Adjustment Assets and Liabilities, as
set forth in Sections 2.6 and 2.7.
2.6 PRE-CLOSING FINANCIAL ADJUSTMENTS . Prior to the Closing Date,
Seller shall make certain accounting adjustments and payments regarding the
assets, liabilities and equity of the Partnership and Southeast, to the effect
that Sellers shall remove all intercompany accounts involving the Partnership,
Southeast and their Affiliates, and all intercompany liabilities shall have been
removed. At Closing the only assets and liabilities of the Partnership and
Southeast shall be the Operating Assets and the Adjustment Assets and
Liabilities.
(a) Certain Accounts. Immediately prior to the Closing, Seller shall
take, and shall cause Southeast and the Partnership to take, all necessary
action deemed appropriate to adjust the Balance Sheets to account for those
items that are to be retained by Seller, as set forth in Schedule 2.6(a). In
doing so, Seller shall take, and shall cause Southeast and the Partnership to
take, all necessary actions deemed appropriate so that the Balance Sheets as of
the Closing Date, as adjusted to reflect such actions, will show zero for those
line items listed in Schedule 2.6(a) as financial items that are to be retained
by Seller.
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(b) Pre-Closing Cash Distribution. Immediately prior to the Closing,
Tesoro Gas Resources Company, Inc. shall cause Southeast to pay to it an amount
equal to the arithmetic mean of Seller's and Buyer's good faith estimates of the
consolidated cash and cash equivalents (other than amounts in suspense accounts)
of Southeast as of the Closing Date.
(c) Changes in Balance Sheets Due to Continuing Operations. Buyer and
Seller expressly recognize that the assets and liabilities of Southeast and the
Partnership shall be affected by the effects of ongoing ownership and operation
of the Operating Assets between the Effective Time and the Closing Date. These
changes shall be handled exclusively by adjustments to the Settlement Price as
set forth in Section 3.2 and Article XIII.
2.7 ADJUSTMENT ASSETS AND LIABILITIES . At Closing, the Partnership
shall retain, to the extent permitted by applicable law and regulations, the
following interests:
(a) All rights, obligations, liabilities, title and interests of Seller
and the Partnership in and to all Hedging Contracts in effect at the Effective
Time or thereafter;
(b) All Working Capital Accounts; and
(c) All rights to future proceeds, defenses and indemnities owed under
any bonds or insurance policies covering the Operating Assets, the Partnership,
Southeast or the Business for policy periods prior to the Closing Date, for
losses, claims or occurrences, as applicable, arising prior to the Closing Date.
ARTICLE III.
PURCHASE PRICE AND SETTLEMENT PRICE
3.1 PURCHASE PRICE. The monetary consideration ("Purchase Price") for
the sale and conveyance of all the Membership Interests to Buyer, effective as
of the date of Closing, is Buyer's payment of $14,426,631 in cash.
3.2 SETTLEMENT PRICE. Pursuant to the provisions as described below,
the Purchase Price to be paid by Seller will be subject to certain adjustments
made at Closing and within one hundred twenty (120) days thereafter, as set
forth in Article XIII, to determine the Settlement Price amount that will
actually be paid by Buyer. The Settlement Price will be calculated as follows:
(a) Increases. The Purchase Price shall be increased by the
following amounts:
(i) An amount equal to the expenses properly accrued in
accordance with GAAP and past practice, and allocated
to Southeast under the Partnership Agreement, and as
provided for in Section 13.3, attributable to the
period from the Effective Time to the end of business
on the Closing Date; provided, however, that such
expenses shall exclude all (1) depreciation,
depletion and amortization, (2) income and franchise
taxes, (3) one-half of the amount accrued by and the
Partnership and allocated to Southeast under the
Partnership Agreement, incentive compensation
arrangements for the Retained Employees, as provided
in Section 9.9(c), and (4) severance obligations and
other amounts accrued under any employment retention
and
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management stability agreements, as provided in
Section 9.9(b); provided, further, however that
Seller and the Partnership shall be permitted to
accrue no more than $40,000 per month from the close
of business on June 30, 1999 to the Closing Date for
corporate general and administrative expenses;
(ii) An amount equal to the capital expenditures relating
to the Business properly accrued in accordance with
GAAP and past practice and allocated to Southeast
under the Partnership Agreement, attributable to the
period from the Effective Time to the end of business
on the Closing Date; and
(iii) The amount of change in Working Capital and allocated
to Southeast under the Partnership Agreement between
the Effective Time and the end of business on the
Closing Date, if the amount of change is a positive
number.
(b) Decreases. The Settlement Price shall be decreased by the
following amounts:
(i) An amount equal to the revenues properly accrued in
accordance with GAAP and past practice and allocated
to Southeast under the Partnership Agreement
attributable to the period from the Effective Time to
the end of business on the Closing Date;
(ii) An amount equal to any Settlement Price Adjustment
allocated to Southeast under the Partnership
Agreement, subject to the application of Section
13.1;
(iii) The amount, stated as a positive number, of any
change in Working Capital and allocated to Southeast
under the Partnership Agreement between the Effective
Time and the end of business on the Closing Date, if
and only if, the amount of change is a negative
number.
The Purchase Price as adjusted pursuant to this Section 3.2 is herein called the
"Settlement Price".
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
4.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Effective as of the
Closing Date, Seller shall represent and warrant that:
(a) Disclosure. To Seller's Knowledge, the representations and
warranties set forth in this Section 4.1 of this Agreement, the exhibits to this
Agreement, and the information, documents and Balance Sheets provided under the
terms of this Agreement represent full and fair disclosure as of the Closing
Date and do not contain any untrue statement of any material fact or omit any
material fact necessary in order to make the facts stated not misleading.
(b) Authorization and Enforceability.
(i) This Agreement and the Transaction have been duly
authorized by each Seller.
(ii) Neither the execution and delivery of this Agreement
by Seller, nor the consummation by Seller of the
transactions contemplated hereby, will violate
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or conflict with, or result in the acceleration of
rights, benefits or obligations under, (1) any
provision of any of Seller's, Southeast's or the
Partnerships' respective Charters, Bylaws, management
agreements, limited liability company agreements,
operating agreements or partnership agreements, or
(2) any applicable statute, law, regulation or
Governmental Order to which Seller or Southeast or
the Partnerships or the assets and properties of such
entities, including without limitation the Operating
Assets, are bound or subject.
(iii) This Agreement has been duly executed and delivered
by each Seller and constitutes the valid and binding
obligation of each Seller, enforceable against it in
accordance with its terms, except as such
enforceability may be limited by bankruptcy,
insolvency or other laws relating to or affecting the
enforcement of creditors' rights generally and
general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
(iv) Except as set forth on Schedule 4.1(b)(iv), or as
otherwise specifically provided herein, the
execution, delivery, and performance of this
Agreement (assuming that all applicable consents are
received and all applicable Preferential Rights to
Purchase individual Operating Assets are waived)
will not (A) be in violation of any provisions of
any regulation or order that could reasonably be
expected to adversely affect the ownership or
operations of the Operating Asset affected thereby
or give rise to damages, penalties or claims of
third parties, or (B) result in the breach of, or
constitute a default under, any indenture or other
material agreement or instrument to which Seller,
Southeast or the Partnerships are bound, or (C)
cause the recognition of gain for which the Buyer
(or, after the Closing, the Subsidiaries) will be
responsible for the tax thereon or subject any
Subsidiary or its assets to any Tax other than Tax
for which Seller is responsible under Article XVI;
(v) Except as set forth on Schedule 4.1(b)(v) or as
otherwise specifically provided herein, no consent,
waiver, approval, order or authorization of, notice
to, or registration, declaration, designation,
qualification or filing with, any Governmental
Authority or third Person, domestic or foreign, is
or has been or will be required on the part of
Seller in connection with the execution and delivery
of this Agreement or the consummation by Seller of
the transactions contemplated hereby or thereby,
other than (A) consents and Preferential Rights to
Purchase affecting individual Operating Assets; (B)
filings required (1) to form Southeast under
Delaware law; (C) tax filings or (D) where the
failure to obtain such consents, waivers, approvals,
orders or authorizations or to make or effect such
registrations, declarations, designations,
qualifications or filings (1) is not reasonably
likely to prevent or materially delay consummation
of the transactions contemplated by this Agreement
(2) could reasonably be expected to adversely affect
the Business or (3) could give rise to damages,
penalties or claims of third parties.
(c) Organizational Status.
(i) Each Seller: (1) is a corporation duly organized,
validly existing and in good standing under the laws
of Delaware, (2) is duly qualified to transact
business
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in each jurisdiction where the nature and extent of
its business and properties require such
qualification, and (3) possesses all requisite
authority and power to conduct its business and
execute, deliver and comply with the terms and
provisions of this Agreement and to perform all of
its obligations hereunder. There are no pending or
threatened Actions (or basis therefor) for the
dissolution, liquidation, insolvency, or
rehabilitation of any Seller.
(ii) Southeast(1) is a limited liability company duly
organized, validly existing and in good standing
under the laws of Delaware, (2) is duly qualified to
transact business in each jurisdiction where the
nature and extent of its business and properties
require such qualification, and (3) possesses all
requisite authority and power to conduct its
business. There are no pending or threatened Actions
(or basis therefor) for the dissolution, liquidation,
insolvency, or rehabilitation of Southeast.
(iii) The Partnership (1) is a limited partnership duly
organized, validly existing and in good standing
under the laws of Delaware, (2) is duly qualified to
transact business in each jurisdiction where the
nature and extent of its business and properties
require such qualification, and (3) possesses all
requisite authority and power to conduct its
business. There are no pending or threatened Actions
(or basis therefor) for the dissolution, liquidation,
insolvency, or rehabilitation of the Partnership.
(d) Subsidiary and Other Equity Interests.
(i) Southeast has no subsidiaries and does not own any
stock or other interest in any other corporation,
partnership, joint venture, or other business entity,
with the exception of the Partnership.
(ii) The Partnership has no subsidiaries and does not own
any stock or other interest in any other corporation,
partnership, joint venture, or other business entity.
(e) Membership Interests and Partnership Interests.
(i) Southeast has authorized membership interests, of
which all are issued and outstanding and owned by
Tesoro Gas Resources Company, Inc. The membership
interests have been duly authorized by Southeast,
and the membership interests owned by Tesoro Gas
Resources Company, Inc. are validly issued and
outstanding, fully paid and nonassessable. There are
no preemptive rights, subscriptions, options,
consents to assignment or rights of first refusal,
convertible securities, warrants, calls, stock
appreciation rights, phantom stock, profit
participation, or other similar rights, or other
agreements or commitments obligating Seller or
Southeast to issue or to transfer (or preventing the
transfer of) any membership interests, capital stock
or other equity interest in Southeast.
(ii) In the Partnership, the entire Series C limited
partnership interest (representing a 100% interest
in all of the capital and assets of Series C) is
held by Southeast. Exploration LLC is the general
partner of the Partnership (representing a 1%
interest in all of the capital and assets of Series
A). Such
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interests are duly authorized under the agreement
governing the Partnership, as currently amended, and
are valid. There are no preemptive rights, or
authorized or outstanding subscriptions, options,
consents to assignment or rights of first refusal,
convertible securities, warrants, calls, appreciation
rights, phantom interests, profit participation, or
other similar rights, or other agreements or
commitments obligating Seller, the Partnership,
Reserves LLC, Southeast, Grande or Exploration LLC to
issue or to transfer (or preventing the transfer of)
any equity interest in the Partnership.
(iii) Seller has delivered to correct and complete copies
of Southeast's and the Partnership's respective
Charter, Bylaws, management agreement, limited
liability company agreement, operating agreement or
partnership agreement, as amended to date, and the
minute books of Southeast and the Partnership.
Neither Southeast nor the Partnership is in breach of
any provision of its Charter, Bylaws, management
agreement, limited liability company agreement,
operating agreement or partnership agreement.
(f) Title to Membership Interests, Partnership Interests and
Assets.
(i) The Membership Interests constitute all of the
issued and outstanding membership interests and
other equity interests in Southeast. All of the
issued and outstanding membership interests of
Southeast are owned of record and beneficially with
good and valid title by Tesoro Gas Resources
Company, Inc., free and clear of any Encumbrance.
Upon delivery to Buyer of the certificates
representing the Membership Interests in the manner
and with the powers described in Section 12.2(a),
assuming that Buyer pays the consideration
contemplated by this Agreement and has no notice of
any adverse claim, good and valid title to the
Membership Interests will have been transferred to
Buyer, free and clear of any Encumbrances. Neither
Tesoro Petroleum Corporation nor Tesoro Gas Resources
Company, Inc. has received any notice of any adverse
claim to their title to the Membership Interests.
(ii) All of the issued and outstanding partnership
interests in the Partnership are owned of record and
beneficially with good and valid title by Reserves
LLC, Southeast, Grande, and Exploration LLC, free and
clear of any Encumbrance. Neither Reserves LLC,
Southeast, Grande, nor Exploration LLC has received
any notice of any adverse claim to their respective
interests in the Partnership.
(iii) Southeast and the Partnership have good title to all
of the assets and properties (except the Operating
Assets) which they own or purport to own, including
the Financial Assets and Liabilities reflected on the
Balance Sheets and allocable to the Properties under
the Partnership Agreement, except for properties
sold, consumed or otherwise disposed of in the
ordinary course of business since the date of the
Balance Sheets, free and clear of any Encumbrances
other than Permitted Encumbrances.
(g) Litigation. Except as set forth in Schedule 4.1(g), none of Seller,
Southeast or the Partnership have been served with and, to Seller's Knowledge,
there are no pending or threatened
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Actions before any Governmental Authority against or affecting Seller,
Southeast, the Partnership or the Operating Assets, which, if adversely
determined, either would be reasonably expected to expose Southeast or the
Partnership to a risk of loss after the Effective Time or would interfere with
Seller's ability or right to execute and deliver this Agreement or consummate
the transactions contemplated by this Agreement.
(h) Labor Matters. Except as set forth on Schedule 4.1(h), there are no
contracts, agreements, or other arrangements whereby Southeast or the
Partnership are obligated to compensate or provide health and welfare benefit
plans or retirement benefits to any employees or other persons, except for
employment agreements that are terminable at will, without breach or penalty. To
Sellers' Knowledge, Seller, Southeast and the Partnership are in compliance with
all federal, state, and local laws respecting employment and employment
practices, terms and conditions of employment, and wages and hours and are not
engaged in any unfair labor practice with regard to those persons employed in
connection with Southeast's or the Partnership's operations. No employee of
Southeast is covered under any collective bargaining agreement. There is no
unfair labor practice complaint against Southeast pending or, to Seller's
Knowledge, threatened before the National Labor Relations Board or any
comparable state or local Governmental Authority. There is no labor strike,
slowdown or work stoppage pending or, to Seller's Knowledge, threatened against
or directly affecting Southeast, and no grievance or any Action arising out of
or under collective bargaining agreements is pending or, to Seller's Knowledge,
threatened against Southeast.
(i) Taxes.
(i) Except as set forth in Schedule 4.1(i), Seller, and
the Partnership have timely filed or caused to be
timely filed (or will timely file or cause to be
timely filed) with the appropriate Taxing
Authorities, all Tax Returns required to be filed on
or prior to the Closing Date by or with respect to
Sellers and the Partnership (or their respective
Operating Assets) and have timely paid or adequately
provided for (or will timely pay or adequately
provide for) all Taxes shown thereon as owing,
except where the failure to file such Tax Returns or
pay any such Taxes would not, or could not
reasonably be expected to, in the aggregate, result
in losses or costs or expenses to Southeast's
interests or the Partnership after the Closing Date.
(ii) Sellers are members of an affiliated group of
corporations which file consolidated federal income
tax returns ("Tesoro Group") with Tesoro Petroleum
Corporation as the common parent ("Tesoro Parent").
Southeast is not required to and does not file
federal income tax returns as a taxpaying entity,
and, for purposes of federal income taxation,
Southeast is accounted for and included as a part of
Tesoro Gas Resources Company, Inc. The Tesoro Group
has been subject to normal and routine audits,
examinations and adjustments of Taxes from time to
time, but there are no current audits or audits for
which written notification has been received, other
than those set forth in Schedule 4.1(i). There are
no written agreements with any Taxing Authority with
respect to or including Southeast's interests which
will in any way affect liability for Taxes
attributable to Southeast's interests after the
Closing Date.
(iii) Except as set forth in Schedule 4.1(i), no
assessment, deficiency or adjustment for any Taxes
has been asserted in writing or, to the knowledge
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of Sellers, is proposed with respect to any Tax
Return of, or which includes, Southeast's interests.
(iv) Except as set forth in Schedule 4.1(i), there is not
in force any extension of time with respect to the
due date for the filing of any Tax Return of or with
respect to or which includes Southeast's interests or
any waiver or agreement for any extension of time for
the assessment or payment of any Tax of or with
respect to or which includes Southeast's interests.
(v) Except for Taxes due with respect to Tax Returns that
will be paid by Tesoro Parent (and not subject to
reimbursement by Southeast), the accounting records
of Southeast will include immediately prior to the
Closing Date adequate provisions for the payment of
all Taxes allocable to Southeast's interests for all
taxable periods or portions thereof through the
Closing Date.
(vi) All Tax allocation or sharing agreements or
arrangements have been or will be canceled on or
prior to the Closing Date. No payments are or will
become due by Southeast after the Closing Date
pursuant to any such agreement or arrangement.
(vii) Except as set forth on Schedule 4.1(i), none of the
Sellers or Southeast will, as a result of the
transactions contemplated by this Agreement, be
obligated to make a payment after the Closing Date to
an individual that would be a "parachute payment" as
defined in Section 280G of the Code without regard to
whether such payment is reasonable compensation for
personal services performed or to be performed in the
future.
(viii) Neither Southeast nor the Partnership have
participated in or cooperated with an international
boycott within the meaning of Section 999 of the
Code.
(ix) Neither Southeast nor the Partnership has filed a
consent under Code Section 341(f) concerning
collapsible corporations.
(x) Neither Southeast nor the Partnership has been a
United States real property holding corporation
within the meaning of Code Section 897(c)(2) during
the applicable period specified in Code Section
897(c)(1)(A)(ii).
(xi) All monies required to be withheld by either Seller,
Southeast and the Partnership and paid to Taxing
Authorities for all Taxes have been (i) collected or
withheld and either paid to the respective Taxing
Authorities or set aside in accounts for such purpose
or (ii) properly reflected in the Balance Sheets.
(j) Balance Sheets.
(i) The Balance Sheets have been prepared in accordance
with GAAP applied on a basis consistent with prior
periods, except as described in the notes thereto,
which will qualify that the Partnership and Southeast
have been accounted for as part of a consolidated
financial group with their affiliates and not as
completely separate stand-alone entities.
(ii) The Balance Sheets present fairly, in all material
respects, the financial condition of the combined
Partnership and Southeast as of June 30, 1999.
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The books and records of Southeast and the
Partnership from which the Balance Sheets were
prepared were complete and accurate in all material
respects at the time of such preparation.
(iii) Southeast and the Partnership have no Liabilities,
except for Liabilities (1) reflected in the Balance
Sheets, (2) incurred by Southeast or the Partnership
in the ordinary course of business and consistent
with past practices since the date of the Balance
Sheets, or (3) which are Permitted Encumbrances, (4)
for which the Buyer is being indemnified hereunder.
As used in this subparagraph, the term "Liabilities"
excludes any Liabilities not required to be reflected
in the Balance Sheets under GAAP.
(k) Absence of Certain Changes. Except as set forth in Schedule
4.1(k), or as otherwise contemplated by this Agreement (including without
limitation Sections 2.5 and 2.6), or with Buyer's prior written consent, since
the close of business on June 30, 1999:
(i) Neither Southeast nor the Partnership has sold,
leased, transferred, or assigned any assets other
than surplus equipment not necessary for operations
of the Business and for a reasonable consideration;
(ii) Southeast and Partnership have not incurred, assumed
or become subject to any additional indebtedness for
money borrowed or purchase money indebtedness,
including capitalized leases;
(iii) Southeast and Partnership have not entered into any
transaction not in the ordinary course of business,
except as contemplated by this Agreement;
(iv) there have been no additional Encumbrances placed on
the assets of Southeast or the Partnership other than
Permitted Encumbrances;
(v) no event has occurred which constitutes a Material
Adverse Effect;
(vi) Neither Southeast nor the Partnership has made any
loan to, or entered into any contract with (other
than severance agreements for which Seller shall
remain responsible), any of its directors or
officers;
(vii) Southeast has not issued, sold, or otherwise disposed
of any of its interests in the Partnership, except in
connection with the transactions outlined in Section
9.4(b) of the Stock Purchase Agreement;
(viii) there has been no change made or authorized to the
Charter, Bylaws, management agreement, limited
liability company agreement, operating agreement or
partnership agreement of Southeast or the
Partnership, except in connection with the
transactions outlined in Section 9.4(b) of the Stock
Purchase Agreement;
(ix) Neither Southeast nor the Partnership has canceled,
compromised, waived, or released any debt or Action
(or series of related debts or Actions);
(x) Neither Southeast nor the Partnership has delayed or
postponed the payment of accounts payable or other
Liabilities owed, other than amounts which Seller
reasonably and in good faith disputes;
(xi) Neither Southeast nor the Partnership has made any
capital investment in,
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any loan to, or any acquisition of the securities or
assets of, any other Person (or series of related
capital investments, loans, and acquisitions), except
in connection with operations conducted pursuant to
Section 9.2(f) or in connection with the transactions
outlined in Section 9.4(b) of the Stock Purchase
Agreement;
(xii) Neither Southeast nor the Partnership has made any
capital expenditure (or series of related capital
expenditures), except in connection with operations
conducted pursuant to Section 9.2(f); or in
connection with the transactions outlined in Section
9.4(b) of the Stock Purchase Agreement
(xiii) Neither Southeast nor the Partnership has entered
into any Contract (or series of related Contracts)
other than (i) to effectuate operations set forth on
Schedule 9.2(f) or (ii) constituting joint operating
agreements or oil and gas leases entered into in the
ordinary course of business or (iii) contracts with
officers and directors for which the Seller shall
remain responsible or (iv) contracts in connection
with the transactions outlined in Section 9.4(b) of
the Stock Purchase Agreement;
(xiv) to Seller's Knowledge, neither Southeast nor the
Partnership has materially breached any Contract by
which it is bound or to which any of its assets is
subject; and
(xv) Neither Southeast nor the Partnership has declared,
set aside, or paid any dividend or made any
distribution with respect to its interests in the
Partnership (whether in cash or in kind) or redeemed,
purchased, or otherwise acquired any of its interests
in the Partnership, other than in the ordinary course
of business or as contemplated by this Agreement or
in connection with the transactions outlined in
Section 9.4(b) of the Stock Purchase Agreement.
(l) Compliance With Law. Since June 30, 1999, neither Southeast
nor the Partnership has violated any law, statute or regulation which have
subjected them to fines or penalties (nor to Seller's Knowledge have any third
parties violated any Applicable Law for which Southeast or the Partnership may
have any responsibility). As of the date of this Agreement, to Seller's
Knowledge, Southeast and the Partnership are in compliance in all material
respects with all laws, statutes or regulations applicable to Southeast and the
Partnership, except where the noncompliance with which would not, in the
aggregate, result in the imposition on Southeast and the Partnership of fines or
penalties.
(m) Operating Assets.
(i) Seller represents that as of Closing, Seller's and
the Partnership's interests in the Operating Assets
shall be free and clear of any liens other than
Permitted Encumbrances.
(ii) To Seller's Knowledge, the Operating Assets are being
operated in compliance in all material respects with
all applicable federal, state or local laws, and the
rules and regulations of any agency or authority
having jurisdiction.
(iii) Except as set forth in Schedule 4.1(m)(iii),
Southeast and the Partnership
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possess all permits, licenses, orders, approvals and
authorizations required by any applicable law,
statute, regulation or Governmental Order, or by the
property and contract rights of third Persons,
reasonably necessary to permit the operation of the
Business in the manner currently conducted by
Southeast and the Partnership. Neither Southeast nor
the Partnership has received written notice from any
Governmental Authority that any such permit, license,
order, approval or authorization has been, or will
be, revoked or terminated.
(iv) Except as set forth in Schedule 4.1(m)(iv),
immediately before the Closing Date, Southeast and
the Partnership will hold or have the right to use
in the Business all of the assets and properties
(including all licenses and agreements) currently
being used (except those disposed of or expiring in
the ordinary course of business or otherwise as
contemplated or permitted by this Agreement) or
which are reasonably necessary to permit the
operation of the Business in the manner currently
conducted by Southeast and the Partnership. Since
June 30, 1999, Southeast have conducted no business
other than the Business.
(n) No Brokers' Fees. Except for Credit Suisse First Boston, the
fees and expenses of which will be paid by Seller, neither Seller nor any of its
directors, officers or employees has employed any broker, finder or investment
banker or incurred any Liability for any brokerage fees, commissions, finders'
fees or similar fees in connection with the transactions contemplated by this
Agreement. Buyer shall have no responsibility whatsoever, contingent or
otherwise, for any brokers' or finders' fees incurred by Seller, Southeast or
the Partnership relating to the Transaction.
(o) Suspense Funds. Schedule 4.1(o) is a true and correct list as
of August 31, 1999 of all amounts held by the Partnership and/or Southeast in
suspense accounts, or otherwise, related to the Properties for the benefit or
account of any other Person.
(p) Insurance. As listed on Schedule 4.1(p) Seller, Southeast and
the Partnership maintain insurance on and bonds with respect to the Operating
Assets, as set forth on Schedule 4.1(p), covering such risks and with such
deductible amounts as are consistent with general oil and gas industry practice.
(q) Contracts on Production. Except as set forth on Schedule
4.1(q), there are no Contracts involving the purchase, marketing, brokering or
sale of Production that require a dedication of Production for a term in excess
of three (3) months that will not be terminable without penalty or other
liability at the sole discretion of Southeast or the Partnership upon not more
than one (1) month's notice, except for commitments under operating agreements.
(r) Equipment. Since June 30, 1999, neither Seller, Southeast nor
the Partnership, nor to Seller's Knowledge the operator of any of the Operating
Assets, has removed any of the equipment, facilities or other property from the
Operating Assets except in the ordinary course of business.
(s) Tax Partnerships. Except as disclosed in Schedule 4.1(s), no
Property is subject to, or considered to be held by, any partnership for federal
income tax purposes, other than tax partnerships under joint operating
agreements.
(t) Disclaimer. Except as otherwise expressly set forth in this
Article and elsewhere in
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this Agreement, Seller and the Affiliates of Seller expressly disclaim any
representations or warranties of any kind or nature, express or implied, as to
the condition, value or quality of the assets or properties currently or
formerly used, operated, owned, leased, controlled, possessed, occupied or
maintained by Southeast or the Partnership, and SELLERS AND ALL OTHER TESORO
AFFILIATES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY OF
MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH
RESPECT TO SUCH ASSETS OR PROPERTIES, OR ANY PART THEREOF, OR AS TO THE
WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR
PATENT, IT BEING UNDERSTOOD THAT SUCH ASSETS AND PROPERTIES ARE BEING ACQUIRED
"AS IS, WHERE IS" ON THE CLOSING DATE, AND IN THEIR PRESENT CONDITION, WITH ALL
FAULTS, AND THAT BUYER SHALL RELY ON ITS OWN EXAMINATION AND INVESTIGATION
THEREOF.
(u) Environmental Matters. Except as set forth on Schedule 4.1(u),
to Seller's Knowledge:
(i) There are no underground storage tanks, as defined in
Applicable Environmental Law, on the Properties or
any of the Operating Assets which constitute a
violation of Environmental Law.
(ii) The Operating Assets contain no friable asbestos,
mercury or polychlorinated biphenyls above 50 ppm or
other Hazardous Substances which constitute a
violation of Applicable Environmental Law.
(iii) The Operating Assets have been used solely for oil
and gas operations and related operations. Except for
the production, storage and transportation of oil,
gas and other hydrocarbons and the storage and
disposal of brine in the ordinary course of business
consistent with prevailing oil and gas industry
practices, the Properties have not been used to
dispose of Hazardous Substances. No Hazardous
Substances have been disposed of that would cause an
adverse material impact to any of the Operating
Assets.
(iv) There have been no spills or releases of any
Hazardous Substance related to the ownership or
operation of the Operating Assets which constitutes a
violation of Applicable Environmental Law, except for
matters that have been addressed and have no
continuing adverse consequence to Seller, Southeast,
the Partnership or the Operating Assets.
(v) There are no Actions pending or threatened against
the Partnership, Southeast, or either Seller with
respect to any of the Operating Assets relating to
the violation of, liability under, or noncompliance
with, any Applicable Environmental Law; the
discharge, disposal or release of a Hazardous
Substance; or the exposure of a Person or property to
a Hazardous Substance. Seller, Southeast and the
Partnership have no current contingent liability in
connection with the release of Hazardous Substances.
(vi) The Operating Assets have been, and are operating, in
material compliance under all Applicable
Environmental Laws.
(vii) Seller, Southeast and the Partnership have provided
Buyer all environmental
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audits, tests, results of investigations and analyses
that have been performed with respect to the
Operating Assets.
(v) Contracts. Except as set forth on Schedule 4.1(v) Schedule
4.1(q) and in joint operating agreements entered into in the normal course of
business, the Operating Assets are not subject to any instrument, agreement or
other Contract evidencing or related to indebtedness for borrowed money. All of
the existing Contracts between any of Southeast, the Partnership and/or either
Seller and any of their respective Affiliates with respect to sales, services or
support to any of the Operating Assets or operations on the Operating Assets
shall terminate except for such Contracts otherwise indicated on Schedule 4.1(v)
to survive Closing. Except as set forth on Schedule 4.1(v) and other than
Consents to Assignment or Preferential Rights to Purchase, to Seller's
Knowledge, no Contracts to which Seller, Southeast or the Partnership is a party
or a successor-in-interest and to which Buyer will be subject after the
Effective Time contain any provision that prevents Buyer from owning, managing
and operating the Operating Assets in accordance with the Partnership's past
practices.
(w) Seismic Information. At Closing, subject to the terms of the
License Agreement, neither Seller nor any affiliate of Seller other than
Southeast and the Partnership shall have any further right to any of the seismic
data of Southeast or the Partnership which has been assigned or leased to
Southeast, the Partnership and/or the Buyer.
(x) Wells. Except to the extent set forth on Schedule 4.1(x), to
Seller's Knowledge, no well included in the Properties is subject to material
penalties on allowables because of any overproduction or any other violation of
Applicable Law. Except for the wells included in the Properties and listed in
Schedule 4.1(x), there are no wells included in the Properties that Seller,
Southeast or the Partnership, or to Seller's Knowledge the operator of such
wells, are currently obligated by Applicable Law, Applicable Environmental Law
or order of any Governmental Authority to plug and abandon within a time certain
or that have been shut-in or temporarily abandoned.
(y) Expenditure Obligations. Except as set forth on Schedule
9.2(f), Southeast and the Partnership have not executed or are not otherwise
contractually bound by any authority for expenditure with respect to any of the
Operating Assets under any operating agreement, unit operating agreement, or
other similar agreements. Except as set forth on Schedule 9.2(f), with respect
to authorizations for expenditure relating to any of the Operating Assets, (i)
there are no outstanding calls under such authorizations for expenditures for
payments which are due or which Southeast or the Partnership have committed to
make which have not been made; (ii) there are no material operations with
respect to which any of Southeast and/or the Partnership has become a
non-consenting party where the effect of such non-consent is not disclosed on
Exhibit B, and (iii) there are no commitments for the expenditures of funds for
drilling or other capital projects other than projects with respect to which the
operator is not required under the applicable operating agreement to seek
consent.
(z) Payout. To Seller's Knowledge, the payout balances with
respect to any of the Properties operated by the Partnership that are subject to
future change on account of reversionary interests, non-consent penalties or
similar agreements or arrangements are set forth on Schedule 4.1(z) and are
correct as of the dates shown on such statements.
(aa) Absence of Certain Changes Regarding Properties. Since
June 30, 1999, except as listed on Schedule 4.1(k), Southeast and the
Partnership:
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(i) have maintained and operated each of the Properties
operated by any of them as a reasonably prudent
operator consistent with prevailing oil and gas
industry practice;
(ii) have used reasonable efforts consistent with their
past practices to cause each of the Properties not
operated by them to be maintained and operated in a
good and workmanlike manner and in substantially the
same manner as theretofore operated;
(iii) have paid timely their share of all costs and
expenses attributable to the Operating Assets, except
for such costs and expenses that they were contesting
in good faith by appropriate action;
(iv) have performed all accounting, royalty disbursement
and reporting requirements, as applicable, related
thereto for the Production; and
(v) have not agreed, whether in writing or otherwise, to
take any action described in this Section 4.1(aa).
(bb) Schedule 1B states all liens and mortgages that previously
encumbered the Membership Interests or the Operating Assets, securing
obligations of Seller, Southeast or the Partnership (other than those items
listed in clause (ii) through (ix) of the definition of "Permitted
Encumbrances"), and all of the liens and mortgages listed on Schedule 1B have
been released, insofar as they encumber the Membership Interests or the
Operating Assets.
4.2 BUYER'S REPRESENTATIONS. Buyer represents that:
(a) Disclosure. To Buyer's Knowledge, the representations and
warranties set forth in this Agreement represent full and fair disclosure as of
the date of this Agreement and the date of Closing and do not contain any untrue
statement of any material fact or omit any material fact necessary in order to
make the facts stated not misleading.
(b) Authorization and Enforceability
(i) This Agreement and the Transaction have been duly
authorized by Buyer.
(ii) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated
hereby or thereby, will violate or conflict with (1)
any provision of Buyer's Charter or Bylaws, or (2)
any applicable statute, law, regulation or
Governmental Order to which Buyer or the assets or
properties of Buyer are bound.
(iii) This Agreement has been duly executed and delivered
by Buyer and constitutes the valid and binding
obligation of Buyer, enforceable against it in
accordance with its terms, except as such
enforceability may be limited by bankruptcy,
insolvency or other laws relating to or affecting the
enforcement of creditors' rights generally and
general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
(iv) Except as set forth on Schedule 4.2(b)(iv) or as
otherwise specifically provided herein, the
execution, delivery, and performance of this
Agreement (assuming that all applicable consents are
received) will not (A) be in
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material violation of any provisions of any
regulation, or order or (B) result in the breach of,
or constitute a default under, any material indenture
or other agreement or instrument to which Buyer is
bound.
(v) Except as set forth on Schedule 4.2(b)(v) or as
otherwise specifically provided herein, no consent,
waiver, approval, order or authorization of, notice
to, or registration, declaration, designation,
qualification or filing with, any Governmental
Authority or third Person, domestic or foreign, is
or has been or will be required on the part of Buyer
in connection with the execution and delivery of
this Agreement or the consummation by Buyer of the
transactions contemplated hereby or thereby, other
than where the failure to obtain such consents,
waivers, approvals, orders or authorizations or to
make or effect such registrations, declarations,
designations, qualifications or filings is not
reasonably likely to prevent or materially delay
consummation of the transactions contemplated by this
Agreement or prevent Buyer from performing its
obligations under this Agreement.
(c) Organizational Status. Buyer: (i) is a limited liability
company duly organized, validly existing and in good standing under the laws of
Delaware, (ii) is duly qualified to transact business in each jurisdiction where
the nature and extent of its business and properties require the same in order
for it to perform its obligations under this Agreement; and (iii) possesses all
requisite authority and power to conduct its business and execute, deliver and
comply with the terms and provisions of this Agreement, to purchase, receive,
and accept conveyance of the Membership Interests from Seller and to perform all
of its obligations hereunder.
(d) Ability to Perform. On the Closing Date, Buyer will have
sufficient cash, available lines of credit or other sources of immediately
available funds to enable it to make its payment of the Closing Settlement Price
at the Closing.
(e) Investment Intent. The Membership Interests are being
purchased for Buyer's own account and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act. Buyer understands that the Membership Interests have not
been registered under the Securities Act by reason of their issuance in
transactions exempt from the registration and prospectus delivery requirements
of the Securities Act pursuant to Section 4(2) thereof. Buyer is knowledgeable,
competent, and experienced in the oil and gas industry and has independently
evaluated and interpreted the technical data and other information regarding the
Operating Assets prior to entering into this Agreement, understands and is
financially able to bear the risk associated with ownership of Southeast and the
Partnership, and will independently conduct all the due diligence investigations
and reviews of all matters concerning Southeast, the Partnership and the
Operating Assets as it deems necessary prior to Closing. Buyer acknowledges that
Buyer is not relying upon any statement or representations made by Seller
concerning the present or future value of, or anticipated income, costs, or
profits, if any, to be derived from, Southeast, the Partnership or the Operating
Assets, and Buyer has relied solely upon its independent inspections, estimates,
computations, evaluations, reports, studies, knowledge and other information
regarding Southeast, the Partnership and the Operating Assets.
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(f) Litigation. There are no pending or, to Buyer's Knowledge,
threatened suits, actions, proceedings, claims, or investigations that would
interfere with Buyers ability or right to execute and deliver this Agreement or
consummate the transactions contemplated by this Agreement.
(g) No Brokers' Fees. Buyer has incurred no liability, contingent
or otherwise, for brokers' or finders' fees relating to the Transaction for
which Seller shall have any responsibility whatsoever.
(h) Buyer's Knowledge. To Buyer's Knowledge, on the date hereof,
Buyer's representations and warranties made in this Section 4.2 are true and
correct in all material respects.
ARTICLE V.
ACCESS TO INFORMATION AND INSPECTION
5.1 ACCESS TO INFORMATION. Prior to the Closing Date, upon
reasonable notice, Seller, Southeast and the Partnership have (i) afforded the
officers, employees and authorized agents and representatives of Buyer
reasonable access during normal business hours to the offices, Operating Assets
and Books and Records , title and contract files, permit files, legal,
evidentiary, litigation support, records and data financial and accounting
records and operating and maintenance files, and related documents, records and
materials concerning the Operating Assets data in possession of Seller and (ii)
furnished to the officers, employees and authorized agents and representatives
of Buyer such additional financial and operating data and other information
regarding the assets, Operating Assets and Liabilities of Southeast, the
Partnership, and the Business (or legible copies thereof) as Buyer may have from
time to time reasonably requested.
5.2 WARRANTIES AS TO DOCUMENTS. Seller has advised Buyer of the
nature and existence of any confidential documents that have been withheld from
disclosure. Seller does not warrant or represent the accuracy of any materials
that may have been made available for Buyer's review, except that Seller does
represent and warrant that it has not concealed or intentionally or willfully
misrepresented or withheld any information, data or materials in its possession
except for confidential information, data or materials, the existence of which
has been disclosed as otherwise provided herein.
ARTICLE VI.
TITLE
6.1 GOVERNMENTAL CONSENTS. After the execution of this Agreement,
and upon Closing and thereafter, Buyer and Seller shall cooperate to obtain all
routine or standard governmental consents or waivers necessary to transfer
Seller's rights and interests in Southeast and the Partnership owning the
Operating Assets to Buyer.
ARTICLE VII.
ENVIRONMENTAL
7.1 DISCLOSURES AND AVAILABILITY OF DATA TO BUYER. The Operating
Assets have been utilized by the Partnership for the purposes of exploration,
development and production of oil and gas, for related oilfield operations and
possibly for the storage and disposal of waste materials or
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hazardous substances generated or otherwise used in association with oil and gas
exploration and production activities on the Properties. The Operating Assets
also may contain buried pipelines, the locations of which may not now be known
by Seller or readily apparent by a physical inspection of the Operating Assets.
In addition to providing any environmental audits and studies as per Section
4.1(u), Seller has made and shall make available to Buyer Seller's historical
files regarding the foregoing operations, to the extent available and to the
extent Seller, Southeast and the Partnership are authorized to disclose same
(excepting documents which Seller, Southeast or the Partnership are
contractually prohibited from disclosing or are subject to legal privilege or
are in the possession of another operator, and with respect to which Seller has
been unable to secure consent to disclose despite its commercially reasonable
efforts to do so).
7.2 NORM. Without affecting Seller's representations and
warranties or the provisions of Section 7.3, Buyer acknowledges that some or all
of the Operating Assets may contain naturally occurring radioactive materials
("NORM"), and that NORM is an anticipated hazard in oil and gas production
operations. Certain of the Operating Assets, including without limitation, pipe
and equipment may have deposits that contain NORM. Buyer agrees that it shall
cause the Partnership to properly handle and dispose of all materials containing
NORM in a safe manner in accordance with all applicable laws and regulations, at
their sole risk, liability and expense.
7.3 BUYER'S ENVIRONMENTAL ASSESSMENT. Buyer has pursued such
environmental assessments of the Operating Assets as Buyer has desired.
7.4 RESPONSIBILITIES FOR REMEDIATION OF CONTAMINATION. As between
the parties hereto, but subject to the provisions of applicable laws, joint
operating agreements, other third party agreements and the indemnities and other
provisions set forth herein, from and after the Closing, the Partnership shall
remain responsible for costs of remediation of all Environmental Conditions
occurring on or arising from any Operating Asset at any time, whether before, on
or after the Effective Time; provided however, that Seller shall fund payment of
any fines or regulatory penalties that might be assessed against the Partnership
by reason of any violation of regulatory or permit requirements before the
Closing Date.
ARTICLE VIII.
CASUALTY LOSS AND CONDEMNATION
8.1 NO TERMINATION. Except as specifically provided to the
contrary herein, Southeast and the Partnership shall retain all risk of loss
with respect to any loss of, reduction in value of or damage to the Operating
Assets from the Effective Time until Closing, and Buyer assumes the risk of loss
of value of Southeast and the Partnership associated with such matters. If after
the Effective Time and prior to the Closing, any part of the Operating Assets
should be destroyed by fire or other casualty or if any part of the Operating
Assets should be taken in condemnation or under the right of eminent domain or
if proceedings for such purposes should be pending or threatened, this Agreement
shall remain in full force and effect notwithstanding any such destruction,
taking or proceeding or the threat thereof, except as expressly provided in
Article XX.
8.2 PROCEEDS AND AWARDS. In the event of any loss described in
Section 8.1, Seller (with Buyer's consent, which shall not be unreasonably
withheld) shall either (a) at the Closing assign to the Partnership all of
Seller's rights in any insurance proceeds, third party damage payments,
condemnation awards or other amounts paid or to be paid by reason of such
destruction, less any
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costs and expenses incurred by Seller in collecting same, or (b) prior to
Closing, use or have the Partnership apply such sums (less any costs and
expenses incurred by Seller in collecting same) to repair, restore or replace
such damaged or taken Operating Assets. In addition, Seller shall at Closing
assign to the Partnership all of the right, title and interest of Seller in and
to any claims for loss of or damages to the Operating Asset, that might be
asserted against third parties with respect to the event or circumstance causing
such loss to and any unpaid insurance proceeds, condemnation awards or other
payments arising out of such destruction or taking, less any costs and expenses
previously incurred by Seller in collecting same. The Settlement Price shall be
reduced by the Casualty Price Adjustment, if any, attributable to casualty
losses that are not fully covered by insurance. Notwithstanding anything to the
contrary in this Section 8.2, neither Seller, Southeast nor the Partnership
shall be obligated to carry or maintain, nor shall they have any obligation or
liability to Buyer for their failure to carry or maintain any insurance coverage
with respect to any of the Operating Assets, except as required by Section 9.2.
8.3 RISKS OF OTHER LOSSES. Except as otherwise set forth in this
Agreement, Buyer shall assume all risks of loss with respect to the
Partnership's ownership or operation of the Operating Assets after the Effective
Time, including without limitation, the following risks:
(a) Operations. With respect to each Operating Asset, Buyer shall
assume all risk of loss with respect to any loss of value or change in the
condition of the Operating Asset, and all wells thereon, after the Effective
Time, relating to the production of oil, gas or other hydrocarbons, including
without limitation normal depletion, water encroachment, coning, pressure
depletion, formation changes and sand infiltration. The Partnership shall
continue to bear its proportionate share of the risks allocated under applicable
joint operating agreements and assume their proportionate share of the risks
that such operations may be unsuccessful, and Closing shall not be conditioned
upon the success of any operations.
(b) Market Conditions. With respect to each Operating Asset, Buyer
shall assume all risk of loss with respect to any change in market conditions
affecting any Operating Asset or production therefrom after the Effective Time,
and this Agreement shall not be terminated or suspended, nor shall Closing be
delayed, due to any such change in market conditions.
ARTICLE IX.
COVENANTS
9.1 PRE-CLOSING COVENANTS OF SELLER REGARDING THE BUSINESS.
Sellers shall cause Southeast and the Partnership to operate the Business only
in its usual, regular and ordinary manner and substantially in the same manner
as heretofore conducted, and as set forth in Section 9.2. Sellers shall cause
Southeast and the Partnership to use commercially reasonable efforts and as set
forth in Section 9.2, to (i) preserve the Business; (ii) keep available to Buyer
the services of the present officers, employees, agents and independent
contractors of Southeast; and (iii) maintain the assets of the Business in their
current state of repair, order and condition, usual and ordinary wear and tear
excepted and subject to requirements in the ordinary course of business.
9.2 PRE-CLOSING COVENANTS OF SELLER REGARDING THE OPERATING
ASSETS. Subject to the terms of applicable operating and other existing
agreements, Seller covenants and agrees that between the date of this Agreement
and the Closing Date, except as set forth on Schedule 9.2 or as
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may be consented to in writing by Buyer, which consent shall not be unreasonably
withheld, Seller shall manage the Partnership's ownership of the Operating
Assets as follows:
(a) Disposal of Operating Assets. The Partnership shall not sell
or otherwise dispose of any of the Operating Assets, except for the sale in the
ordinary course of the Partnership's business of oil, gas, condensate and
products thereof and surplus equipment.
(b) New Third Party Rights. Except for Contracts entered into in
furtherance of operations listed on Schedule 9.2 and Schedule 9.2(f), without
Buyer's consent, the Partnership shall not enter into any new or amended
contracts, agreements or relationships (i) granting any Preferential Right to
Purchase or Consent to Assignment affecting any of the Operating Assets
hereunder, or (ii) which if in existence as of the date hereof would be a
material Contract.
(c) Preservation of Operating Assets. The Partnership shall use
reasonable efforts to preserve in full force and effect all leases, operating
agreements, easements, rights-of-way, permits, licenses, contracts and other
agreements which relate to the Operating Assets and shall perform the
obligations of the Partnership in or under any such agreement relating to such
Operating Assets as a reasonable and prudent operator, provided however, that
the Partnership shall not be required to conduct any drilling, recompletion or
reworking activities to maintain any lease, farmout agreement or other
defeasible interest in force or to settle any adverse claims, demands or
litigation in a manner that Seller deems inappropriate.
(d) Maintenance of Equipment. The Partnership shall maintain all
material and equipment within the Operating Assets in accordance with customary
industry operating practices and procedures.
(e) Insurance. The Partnership shall maintain in full force and
effect all policies of insurance now maintained by Seller and the Partnership
covering the Operating Assets. Seller and Buyer will cooperate in making claims
under Seller's insurance policies prior to the Closing. Seller additionally
agrees to cooperate with Buyer to allow Buyer, Southeast or the Partnership to
obtain, at Buyer's expense, at a reasonable market price an additional reporting
period policy for any of Seller's insurance policies which are on a claims-made
basis.
(f) Operations.
(i) Except for operations covered by committed
expenditures listed on Schedule 9.2(f), the
Partnership shall not propose or conduct for its own
account any operation. The Partnership shall have the
right to conduct, at its sole election and
discretion, any operations that either (1) are
covered by committed expenditures listed on Schedule
9.2(f), (2) are required by law or regulations, or
(3) are required under a binding existing agreement
with a third party.
(ii) Except for operations covered by committed
expenditures listed on Schedule 9.2(f), the
Partnership shall not agree to participate in any
reworking, deepening, drilling, completion,
recompletion, equipping or other operation that is
proposed by a co-owner in any well or other asset,
without Seller having first provided Buyer written
or oral notice thereof as soon as reasonably
practicable after the Partnership receives notice
thereof from the
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Partnership's co-owner in such Operating Asset. If
Seller provides Buyer with such notice, Buyer and
Seller shall promptly consult about the advisability
of participating in such operations. If Buyer and
Seller cannot agree, the following provisions shall
apply:
(1) If Seller should wish to participate in an
operation proposed by a third party and Buyer should
object to the operation, then the Partnership may
agree to participate, but Buyer may assert a Title
Defect with respect to the Property affected by such
operation, and in such event such Property shall be
excluded from the sale hereunder and instead shall be
assigned to another subsidiary of Seller prior to
Closing and the Purchase Price shall be reduced by
the Allocated Value of the affected Property. In such
event, Seller shall indemnify and defend Buyer
against any and all Damages relating to such
operation and such Property.
(2) If Buyer should wish to participate in such
operation and Seller objects to the operation, the
Partnership shall not be obligated to make any such
payment or to elect to participate in such operation
unless within a reasonable time prior to the date
when such payment or election is required to be made
by the Partnership, the Partnership receives from
Buyer, (A) the written election and agreement of
Buyer to require the Partnership to take such action
and to indemnify Seller therefrom and (B) all funds
necessary for such action.
(3) If (A) Buyer advances any funds pursuant to
subparagraph (2), and (B) the Membership Interests
are not assigned to Buyer at Closing, and (C) Seller
does not reimburse Buyer for all advances made by
Buyer with respect to such Operating Assets pursuant
to subparagraph (2) within thirty (30) days after
this Agreement terminates, then Buyer shall own and
be entitled to any right of the Partnership that
would have lapsed but for such payment, and in the
case of operations, Seller shall be entitled to
receive the penalty which the Partnership, as
non-consenting party, would have suffered under the
applicable operating agreement with respect to such
operations as if Buyer were a consenting party
thereunder.
(g) Data Restrictions. Seller shall advise Buyer in writing of the
identity, nature and existence of any technical or interpretive information or
data that cannot be assigned to Buyer hereunder because of confidentiality
agreements with third parties, identify such third parties, and provide
reasonable cooperation (for before and up to one year after Closing) in
obtaining the agreement of such third parties to the release or assignment of
such information and data to Buyer; provided however, that Seller shall not be
required to expend any material funds or release any rights to allow such
release or assignment.
(h) Operating Assets Operated by Others. To the extent the
Partnership is not the operator of any Operating Asset, the obligations of
Seller in this Section 9.2, which have reference to operations or activities
which normally are or pursuant to existing contracts are to be carried out or
performed by operator, shall be construed to require only that the Partnership
use reasonable efforts to request that the operator of such Operating Asset
either take such actions, render such
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performance or refrain from performance, within the constraints of the
applicable operating agreements, applicable agreements and applicable law.
9.3 SELLER'S COVENANTS REGARDING ENCUMBRANCES. Seller covenants
that on or before the Closing Date, Seller shall cause the Encumbrances in
Schedule 1B to be released, in a form reasonably acceptable to Buyer.
9.4 COVENANTS REGARDING CORPORATE AND FINANCIAL MATTERS. Through
the Closing Date, except as set forth in Schedule 9.4 or as contemplated by this
Agreement (including without limitation Sections 2.5 and 2.6) or otherwise
consented to or approved by Buyer in writing, which consent or approval shall
not be unreasonably withheld, Seller shall cause Southeast and the Partnership
not to:
(a) Amend the Charter, Bylaws, management agreement, limited
liability company agreement or operating agreement of any Southeast or amend the
partnership agreement of the Partnership;
(b) Incur, assume or become subject to any additional indebtedness
for money borrowed or purchase money indebtedness, except in the ordinary course
of business and consistent with past practices;
(c) Except as necessary to effect the transactions contemplated
herein, declare or pay any dividend or make any other distribution to any
shareholder of any of Southeast or any partner of the Partnership;
(d) Redeem or otherwise acquire any shares of capital stock of any
of Southeast or issue any capital stock of any Southeast or any option, warrant
or right relating thereto or any securities exchangeable for or convertible into
any such shares;
(e) Permit or allow any of Southeast' assets or properties to be
subject to any additional Encumbrance (other than Permitted Encumbrances) or
sell, transfer, lease or otherwise dispose of any such assets or properties,
other than surplus equipment not necessary for operations of the Business and
sold for a reasonable consideration of less than $25,000;
(f) Make any change in any method of accounting or accounting
practice or policy, other than those required by GAAP;
(g) Engage in any transactions with an Affiliate of Seller, other
than transactions in the ordinary course and consistent with past practices;
(h) Make any changes in the method of selling natural gas,
condensate, oil or products thereof which is not consistent with past practices;
(i) Enter into any new derivative or Hedging Contracts with
respect to natural gas, condensate, oil, products thereof, interest or any other
commodities or other financial instruments; or
(j) Agree, whether in writing or otherwise, to do any of the
foregoing.
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9.5 NO SOLICITATION OF TRANSACTIONS. Except as otherwise permitted
herein from the date of this Agreement through the Closing Date, neither Seller
nor any of their representatives, Affiliates, directors, officers, employees,
subsidiaries or agents will (a) solicit, consider, encourage or accept any other
offers to acquire any of the Membership Interests or Seller's interests in the
Partnership or (b) solicit, consider, encourage or accept any other offers to
acquire any of the assets or properties of the Partnership (other than as
permitted by this Agreement) or (c) assist any third Person in preparing or
soliciting such an offer. Seller shall not have, and shall cause such
representatives, Affiliates, directors, officers, employees, subsidiaries and
agents not to have any discussions, conversations, negotiations or other
communication with any Person(s) expressing an interest in any such offer.
9.6 EMERGENCIES AND OVERSIGHTS. Notwithstanding the other
provisions of this Article IX, (a) Seller, Southeast and/or the Partnership may
take any action with respect to the Operating Assets without penalty, if
reasonably necessary under emergency circumstances or if required to protect
life, public safety or the environment, and provided Buyer is notified as soon
thereafter as reasonably practical, and (b) Seller shall have no liability to
Buyer for the loss or reduction of any rights or interests by reason of the
nonpayment or incorrect payment of delay rentals, royalties, shut-in royalties
or similar payments or for any failure to pay any such payments through mistake
or oversight; provided, however, Buyer shall be permitted to assert the items in
this clause (b) as Title Defects under Article VI.
9.7 BUYER'S COVENANTS REGARDING PERFORMANCE AND CONTINUED
EXISTENCE. Buyer covenants that between the date of this Agreement and the
Closing Date:
(a) Buyer shall take all steps and perform all operations
reasonably necessary to allow Buyer to perform its obligations at Closing;
(b) Buyer shall maintain its existence as a limited liability
company in good standing in Delaware; and
(c) Buyer shall cause the representations and warranties of Buyer
to be true and correct as of the Closing Date.
9.8 BUYER'S COVENANTS REGARDING TRADE NAME. Buyer acknowledges and
agrees with Seller that Seller shall have the absolute and exclusive proprietary
right to all names, marks, trade names, trademarks and corporate symbols and
logos incorporating "Tesoro," together with all other names, marks, trade names,
trademarks and corporate symbols and logos owned by any Affiliates of Seller
(collectively, the "Tesoro Marks"), all rights to which and the goodwill
represented thereby and pertaining thereto are being retained by Seller and the
Affiliates of Seller. Within ninety (90) days after the Closing Date, Buyer
shall change the name of Southeast and the Partnership, to not include the name
"Tesoro", cease using any Tesoro Mark and shall promptly remove from all the
assets and properties of Southeast any and all Tesoro Marks, and change the name
on all permits and licenses, to not include the name "Tesoro". Thereafter, Buyer
shall not use any Tesoro Mark in connection with the conduct of its business. In
the event that Buyer breaches this Section 9.8, Seller shall be entitled to
specific performance of this Section 9.8 and to injunctive relief against
further violations, as well as any other remedies available at law or in equity.
9.9 BUYER'S COVENANTS REGARDING EMPLOYMENT.
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(a) Schedule 9.9(a) sets forth the employees of Seller or its
Affiliates to whom Buyer (or an Affiliate of Buyer) expects to offer employment
after the Closing. Buyer in its sole discretion will determine the capacity in
which the employees listed on Schedule 9.9(a) who accept employment with Buyer
or its Affiliate (the "Retained Employees") will be employed and with which
entity each of the Retained Employees will be employed after the Closing. After
the Closing, Buyer (or its Affiliates which will employ Retained Employees) will
initially provide to the Retained Employees the same base salary or wages (but
not any retention-related salary increases described in Schedule 9.9(c))
provided to such employees prior to the Closing, subject to such changes in base
salary or wages as are consistent with the Buyer's compensation structure. Buyer
will take all actions necessary or appropriate to permit the Retained Employees
to participate from and after the Closing in the employee benefit plans or
arrangements of Buyer and/or Affiliates of Buyer customarily provided to new
employees of Buyer and its Affiliates (including, without limitation, the
Employee Stability Plan); provided that Buyer shall, with respect to Buyer's or
its Affiliate's group health and dental plans ("Buyer's Group Health Plans"), to
the extent necessary after the Closing, (i) reimburse such Retained Employees,
for the year during which participation in Buyer's Group Health Plan begins, for
any duplicate deductibles and copayments already incurred during such year under
the group health and dental plans of Seller or its Affiliates ("Seller's Group
Health Plans"), and (ii) waive any preexisting condition limitations applicable
to the Retained Employees (and their eligible dependents) under Buyer's Group
Health Plans to the extent that a Retained Employee's (or dependent's) condition
would not have operated as a preexisting condition under Seller's Group Health
Plans.
(b) Buyer (and its Affiliates) will not be required to assume any
obligation to Retained Employees (or any other employees of Seller or its
Affiliates) under Seller's existing severance, retention or management stability
agreements, or similar agreements. As described in Section 9.9(a), from and
after the Closing, the Retained Employees will be permitted to participate in
the employee benefit plans or arrangements of Buyer and/or its Affiliates
customarily provided to new employees of Buyer and its Affiliates (including,
without limitation, the Employee Stability Plan), or other benefits as may be
individually negotiated between Buyer and a Retained Employee.
(c) Buyer (or its Affiliate) will assume half, and Seller and its
Affiliates will remain responsible for half, of the liability to all Retained
Employees for the annual incentive compensation bonuses described on Schedule
9.9(c). Buyer (or its Affiliate) will not assume the liability to certain
Retained Employees for the retention-related salary payment.
(d) Any obligations to employees of Seller and its Affiliates not
specifically assumed by Buyer (or its Affiliates) in this Section 9.9, including
without limitation all such obligations accrued prior to the Closing, will be
the responsibility of the Seller, and Seller will indemnify Buyer with respect
to those obligations.
(e) Buyer agrees to open an office in San Antonio, Texas and to
maintain such office for so long as prudent business practices justify its
operation.
(f) If after the Closing Date, Seller or any of its Affiliates
continues to employ any individual listed on Schedule 9.9(a), Seller agrees to
cooperate with Buyer to make such individual available to provide services
required by Buyer for up to six months after the Closing Date for transition
purposes, with Buyer reimbursing Seller for the actual cost of such employee's
services (including without limitation, salary and benefits).
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9.10 AUTHORIZATIONS.
(a) Each of Buyer and Seller, as promptly as practicable after the
Agreement Date, shall (i) deliver, or cause to be delivered, all notices and
make, or cause to be made, all such declarations, designations, registrations,
filings and submissions under all statutes, laws, regulations and Governmental
Orders applicable to it as may be required for it to consummate the sale of the
Membership Interests and the other transactions contemplated hereby in
accordance with the terms of this Agreement; (ii) use commercially reasonable
efforts to obtain, or cause to be obtained, all authorizations, approvals,
orders, consents and waivers from all Persons necessary to consummate the
foregoing; and (iii) use commercially reasonable efforts to take, or cause to be
taken, all other actions necessary, proper or advisable in order for it to
fulfill its respective obligations hereunder and to carry out the intentions of
the parties expressed herein. The preceding sentence notwithstanding, neither
party shall have any obligation to waive any condition herein for its benefit or
any performance hereunder by any other party.
(b) Each Party shall use its commercially reasonable efforts to
satisfy the conditions to Closing applicable to it in Article XI as soon as
commercially practicable.
9.11 SOFTWARE AND COMPUTER PROGRAMS. From the date of this
Agreement through the date which is ninety (90) days after the Closing Date,
each Seller, Southeast and the Partnership, as applicable, agree to engage in
discussions with the licensors of applicable software and computer programs and
seismic data and processing identified in a written notice provided to Seller by
Buyer on or prior to the Closing Date, the purpose of which discussions shall be
to assist Buyer in its efforts to obtain a license with respect to such software
and/or computer programs and seismic data and processing with terms acceptable
to Buyer. Buyer will pay all fees (including fees agreed to as part of a
settlement) required to transfer or retain such records, programs and data that
Buyer chooses to retain after Closing.
9.12 GENERAL.
(a) Each of the Parties will use their reasonable best efforts to
take all action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Article
XI).
(b) Buyer agrees to cooperate at no cost or liability to Buyer
with Seller so that Seller's transfer of the Operating Assets to Buyer shall, at
Seller's election, be accomplished in a manner enabling the transfer to qualify
as a part of a like-kind exchange of property by Seller within the meaning of
Section 1031 of the Code. If Seller so elects, Buyer shall reasonably cooperate
with Seller to effect such like-kind exchange, which cooperation shall include,
without limitation, taking such actions as Seller reasonably requests in order
to pay the Purchase Price in a manner which enables such transfer to qualify as
part of a like-kind exchange of property within the meaning of Section 1031 of
the Code, and Buyer agrees that Seller may assign its rights (but not its
obligations) under this Agreement to an escrow agent acting as a qualified
intermediary under United States Treasury Regulations, to qualify the transfer
of the Purchase Price as a part of a like-kind exchange of property within the
meaning of Section 1031 of the Code.
(c) Seller shall reimburse Buyer for Buyer's reasonable costs and
expenses incurred in connection with evaluating and implementing the like kind
exchange transaction, including without
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limitation, legal and accounting fees incurred in connection with evaluating and
implementing the like kind exchange transaction and revising this Agreement.
Seller shall reimburse Buyer in cash for such costs and expenses within ten (10)
days after receiving a notice from Buyer describing such costs and expenses in
reasonable detail, and requesting payment.
(d) If prior to Closing Buyer elects to obtain financing for a
portion of the Purchase Price from a bank or other lender (the "Lender")
(whether through conventional loans or through a production payment or similar
off-balance sheet financing mechanism), Seller shall (and shall cause Southeast
and the Partnership to) cooperate reasonably with Buyer in Buyer's negotiation
and finalization of any loan or other documents with the Lender, provided that
such cooperation does not result in Seller, Southeast and the Partnership
incurring material additional expenses. Seller shall (and shall cause Southeast
and the Partnership to) use its commercially reasonable efforts to give
representatives of the Lender the access to information and right to inspection
provided to Buyer under Article V, subject to the Lender agreeing to be bound by
the terms of the Confidentiality Agreement. This Section 9.12(c) does not change
or modify Buyer's obligation to close the Transactions in accordance with the
other provisions of this Agreement.
9.13 COVENANT AND INDEMNITY WITH RESPECT TO CASH FLOW. Seller
covenants to use its best efforts to insure that after the Closing all cash,
checks, wire transfers and other cash flow attributable to the Operating Assets
received by Seller or any Affiliate of Seller will be transferred on or before
the next Business Day after such cash flow is received by Seller or such
Affiliate of Seller to an account designated by Buyer prior to the Closing (such
that the transfer is recorded by the transferring bank on or before the next
Business Day after such cash flow is received by Seller or an Affiliate of
Seller). To the extent Seller does not make the transfer required by this
Section 9.13 on or before the next Business Day after receipt of such cash flow,
Seller agrees to pay to Buyer (a) interest at the prime rate of Buyer's primary
lender (accruing from the second Business Day after receipt by Seller of such
cash flow) on any such cash flow remaining outstanding for the second and third
Business Day after receiving such funds and (b) the maximum interest allowable
by Applicable Law on any such cash flow remaining outstanding thereafter. Seller
agrees to indemnify and hold the Buyer Group harmless for any Damages asserted
against, resulting to, imposed upon or incurred by the Buyer Group arising from
any failure by Seller to transfer any amounts that, together with any other
amounts not transferred pursuant to this Section 9.13, aggregate greater than $1
million and that Seller has not transferred within one Business Day after
written notice by Buyer is received by Seller. Buyer and Seller agree to
cooperate in identifying amounts that may need to be transferred by Seller to
Buyer under this Section 9.13.
ARTICLE X.
PRE-CLOSING PROCEDURES
10.1 INITIAL SETTLEMENT STATEMENT. Before Closing, Seller shall
furnish Buyer with a preliminary draft of the Settlement Statement, in
accordance with Section 13.1. Buyer shall have the right to audit and request
appropriate adjustments to the amounts reflected therein. Buyer shall furnish
Seller with any comments, and adjustments or revisions Buyer believes are
appropriate to conform the Settlement Statement to accurately reflect the best
information available at Closing, and the Parties shall endeavor in good faith
to reconcile the accounting issues and to produce as accurate a Settlement
Statement as possible based upon the information available at Closing. Seller
shall then
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furnish Buyer with the Settlement Statement, including any appropriate updates,
adjustments or revisions, showing the Closing Settlement Price.
10.2 CLOSING DOCUMENTS. Before Closing, the Parties shall provide
each other with preliminary drafts of all attorneys opinions, certificates,
corporate guarantees, assignments and other instruments to be delivered at
Closing. The Parties shall thereafter cooperate to make such revisions as are
needed to prepare mutually acceptable forms of all such instruments.
10.3 ESCROW AGENT. If the Parties should agree to place any funds
into an escrow account at Closing, then they shall negotiate in good faith to
select a mutually acceptable escrow agent, who is willing and able to perform
such role. In such an before the Closing Date, the Parties shall agree upon an
escrow agent, and they shall use their best efforts to negotiate a mutually
acceptable Escrow Agreement before the Closing Date.
10.4 QUALIFIED INTERMEDIARY. Seller will assign to the Qualified
Intermediary all of Seller's rights in the proceeds of this Agreement. All
proceeds owed Seller for the sale under the Stock Purchase Agreement and,
subject to Section 21.4, this Agreement shall then be paid to the Qualified
Intermediary.
10.5 WIRE TRANSFER INSTRUCTIONS. At least two (2) Business Days
prior to the Closing Date, Seller shall provide to Buyer wire transfer
instructions designating a bank account and Federal Reserve ABA designation ID
number, at a bank within the United States of America where the Closing
Settlement Price shall be paid to the Qualified Intermediary.
ARTICLE XI.
CLOSING CONDITIONS
11.1 SELLER'S CLOSING CONDITIONS. Seller's obligation to consummate
the Transaction is subject to the satisfaction by Buyer or the waiver by Seller,
at or before the Closing, of the following conditions:
(a) Representations. The representations and warranties of Buyer
contained in Section 4.2 shall be true and correct in all material respects on
the Closing Date as though made on and as of that date.
(b) Performance. Buyer shall have performed in all material
respects the obligations, covenants and agreements hereunder to be performed by
it at or prior to Closing.
(c) Corporate Certificates and Opinion. Buyer shall have delivered
to Seller (i) a certificate of an executive officer, dated the Closing Date,
certifying on behalf of Buyer that the representations set forth in Section 4.2
are true and correct as of the Closing Date; (ii) a certificate of incumbency;
(iii) a certificate of good standing of Buyer as a limited liability company;
(iv) certified resolutions of the members of Buyer, authorizing Buyer to enter
into this Agreement and the Transaction and to perform its obligations at
Closing; and (v) an opinion of counsel for Buyer, acceptable to Seller, dated
the Closing Date, as to such matters as may reasonably be requested by Seller
and its counsel and are typical for transactions such as the Transaction.
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(d) Pending Matters. No suit, action or other legal proceeding by
a third party or a governmental authority shall be pending which seeks material
damages from Seller in connection with, or seeks to restrain, enjoin or
otherwise prohibit, the consummation of the Transaction.
(e) No Orders. This Closing hereunder shall not violate any order
or decree of any governmental authority having competent jurisdiction over the
Transaction.
(f) HSR. Any applicable waiting period under the HSR Act shall
have expired or been terminated.
11.2 BUYER'S CLOSING CONDITIONS. Buyer's obligations to consummate
the Transaction is subject to the satisfaction by Seller or the waiver by Buyer,
at or before the Closing, of the following conditions:
(a) Representations. The representations and warranties of Seller
contained in Section 4.1 (other than with respect to paragraphs (u), (w), (x),
(y), (z) and (aa) of Section 4.1) shall be true and correct in all material
respects on the Closing Date as though made on and as of that date; provided,
however, that the accuracy of the representations and warranties in
subparagraphs (k)(i), (ix), (x), (xi), (xii) and (xiii) of Section 4.1 shall,
for purposes of satisfying this condition, not be affected to the extent of
inaccuracies resulting solely from Buyer unreasonably withholding its prior
written consent (after written request by Seller duly provided to Buyer) to the
action taken by (or omission of) Seller, Southeast or the Partnership which
caused such representations and warranties to be inaccurate.
(b) Performance. Seller shall have performed, or caused to be
performed, in all material respects the obligations, covenants and agreements
hereunder to be performed by it, Southeast and the Partnership at or prior to
Closing.
(c) LLC Certificates and Opinion. Each Seller shall have delivered
to Buyer, and Seller shall cause Southeast and the Partnership to deliver to
Buyer: (i) a certificate of an executive officer, dated the Closing Date,
certifying on behalf of such Seller that the representations made in Section
4.1, are true and correct as of the Closing Date; (ii) a certificate of
incumbency for each Seller, (iii) a certificate of corporate good standing for
the Partnership as a Delaware limited partnership, for each Seller as Delaware
corporations and for Southeast as a Delaware limited liability company; (iv)
with respect to each Seller only, certified resolutions of the Boards of
Directors of each Seller, authorizing each Seller to enter into this Agreement
and the Transaction and to perform its obligations at Closing; and (v) an
opinion of counsel for the Seller and each of Southeast and the Partnership,
acceptable to Buyer, dated the Closing Date, as to such matters as may
reasonably be requested by Buyer and its counsel and are typical for
transactions such as the Transaction.
(d) Other Certificates and Documents. Buyer shall have also
received the certificates and documents described in Section 12.2.
(e) Pending Matters. No suit, action or other legal proceeding by
a third party or a governmental authority shall be pending which seeks material
damages from Buyer in connection with, or seeks to restrain, enjoin or otherwise
prohibit, the consummation of the Transaction.
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(f) No Orders. The Closing hereunder shall not violate any order
or decree of any governmental authority having competent jurisdiction over the
Transaction.
(g) Adjustments. The reduction (if any) to be made at Closing to
the Purchase Price which results from the application of Articles VIII and XIII
does not exceed fifteen percent (15%) of the Purchase Price.
(h) Liens and Mortgages. Seller shall have secured release of all
liens and mortgages listed on Schedule 1B and released all obligations of
Southeast and the Partnerships under the Seller's credit facility and provided
Buyer evidence of the same.
(i) There shall not have occurred a Material Adverse Effect.
(j) HSR. Any applicable waiting period under the HSR Act shall
have expired or been terminated.
(k) Seller shall have delivered proof, acceptable to Buyer in its
reasonable discretion, of the effectiveness of a post-effective amendment to
Seller's Registration Statement on Form S-3 (Reg. No. 333-51789), as amended,
removing any entities being transferred hereunder as co-registrants under such
registration statement.
ARTICLE XII.
CLOSING
12.1 CLOSING. The closing of the Transaction (the "Closing") shall
be held on December 17, 1999 (the "Closing Date"), at 9:00 a.m. Houston time, at
the office of Seller's counsel, 1301 McKinney, Suite 5100, Houston, Texas 77010,
or at such other date or place as the parties may direct; provided, however,
that if all conditions to Closing set forth in Article XI have not been waived
or satisfied prior to December 17, 1999, the Closing Date shall be on the second
Business Day following the waiver or satisfaction of such conditions.
12.2 SELLER'S CLOSING OBLIGATIONS. At Closing, Seller shall deliver
to Buyer the following:
(a) The certificates representing Membership Interests in
Southeast, duly endorsed in blank or with separate duly executed powers duly
endorsed in blank;
(b) All organizational documents and books and records of each of
Southeast, Reserves LLC and Exploration LLC;
(c) All books and records of the Partnership;
(d) The resignations of the officers and directors of Southeast;
(e) Such other documents or authorizations as Buyer may reasonably
request, or as might be reasonably necessary to assign all of Seller's interest
in Southeast, the Partnership and the Operating Assets to Buyer in accordance
with the provisions hereof;
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(f) Instruments assigning Seller's rights under this Agreement to
the Qualified Intermediary;
(g) A certificate of each Seller, signed under penalties of
perjury (i) stating that it is not a foreign corporation, foreign partnership,
foreign trust or foreign estate, (ii) providing its U.S. Employer Identification
Number (if applicable) and (iii) providing its address, all pursuant to Section
1445 of the Code.
(h) The certificates of Seller referred to in Section 11.2(c)
hereof;
(i) The opinion of counsel referred to in Section 11.2(c) hereof;
and
(j) Releases, in a form acceptable to Buyer, of all liens and
mortgages listed on Schedule 1B.
12.3 BUYER'S CLOSING OBLIGATIONS. At Closing, Buyer shall deliver
the following:
(a) The Closing Settlement Price, paid to the Qualified
Intermediary in immediately available funds, by wire transfer into the U.S. bank
account designated by the Qualified Intermediary;
(b) The certificates of Buyer referred to in Section 11.1(c)
hereof; and
(c) The opinions of counsel referred to in Section 11.1(c) hereof.
12.4 GOVERNMENTAL FILINGS. At Closing, the Parties shall execute
such guarantees, bonds, forms and other instruments as are needed allow Buyer to
assume all of Seller's existing obligations under governmental permits and
licenses and leases affecting the Operating Assets. Buyer shall diligently file
such instruments and obtain governmental approval of the transfer of all such
rights, obligations and interests.
ARTICLE XIII.
ADJUSTMENT BASKET; PRORATION OF REVENUES AND COSTS
13.1 SETTLEMENT STATEMENTS.
(a) Pre-Closing. The Settlement Statement is attached hereto as
Exhibit D.
(b) Final Statement. As soon as practicable after the Closing
Date, but in no event later than one hundred twenty (120) days thereafter, Buyer
shall prepare and submit to Seller a draft Final Statement, which shall show the
calculation of the adjusted Final Settlement Price, based upon the best
information then available. Seller shall have the right to audit such Final
Statement and all supporting data and accountings. As soon as practicable after
receipt of the Final Statement, but in any event within thirty (30) days after
receipt thereof, Seller shall deliver to Buyer a written report containing the
changes, if any, which Seller proposes be made to the Final Statement. If no
response is made by Seller within such thirty (30) day period, it shall be
presumed that Seller concurs with the Final Statement, and such Final Statement
shall be the basis for the Final Settlement Price. If Seller submits a response,
the Parties shall cooperate in good faith to produce not later than one hundred
eighty (180) days after the Closing Date as accurate a Settlement Statement as
possible
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based upon the information then available. After agreement upon a Final
Statement setting forth the Final Settlement Price, the difference between such
Final Settlement Price and the Closing Settlement Price paid at Closing shall be
paid within five (5) Business Days thereafter by the Party owing the same.
13.2 OPERATING TAXES.
(a) Apportionment of Ad Valorem and Property Taxes. All ad
valorem, real property taxes and personal property taxes, including interest and
penalties attributable thereto (hereinafter "Property Taxes"), attributable to
Southeast's limited partnership interest in the Partnership's ownership and
operation of the Properties with respect to the assessment period ("Property Tax
Period") during which the Effective Time occurs shall be apportioned between
Seller and Buyer by multiplying the total amount of such Property Taxes by a
fraction, the numerator of which is the number of days in the partial period
through and including the Effective Time and the denominator of which is the
total number of days in the Property Tax Period. The Partnership shall file or
cause to be filed all required reports and returns incident to the Property
Taxes and shall pay or cause to be paid to the taxing authorities all Property
Taxes relating to the Property Tax Period during which the Effective Time
occurs. If Seller is the owner of Southeast on the Property Tax assessment date,
then the Settlement Price shall be increased by the amount of Buyer's portion of
Property Taxes owed as set forth above. If the Property Tax assessment date
occurs after Closing, then the Settlement Price shall be reduced by the
estimated amount of Seller's portion of Property Taxes owed as set forth above.
The allocation and payment of ad valorem taxes shall be handled through
adjustments to the Settlement Price.
(b) Other Operating Taxes. With the exception of Income Taxes, all
other federal, state, foreign and local Taxes (including interest and penalties
attributable thereto) on the ownership or operation of the Operating Assets
which are imposed upon Southeast or the Partnership for periods or portions of
periods prior to the Effective Time shall be borne by Seller, and all such Taxes
imposed upon the Partnership for periods or portions of periods beginning on or
after the Effective Time shall be borne by Buyer. Such Taxes shall be
apportioned between Seller and Buyer for the period or portion thereof up to and
including the Effective Time, (i) in the case of a flat minimum dollar amount of
tax, by multiplying the total amount of such Taxes by a fraction, the numerator
of which is the number of days in the partial period through and including the
Effective Time and the denominator of which is the total number of days in such
tax period, and (ii) in the case of all other operating Taxes, on the basis of
actual activities creating such Tax liability of Southeast and the Partnership
for the partial period through and including the Effective Time as are
determined from their respective Books and Records. To the extent any such
amounts are borne prior to the delivery of the Final Statement by a Party who is
not required to bear them hereunder, they shall be included in the adjustments
to the Settlement Price. The allocation and payment of these Taxes shall be
handled through adjustments to the Settlement Price.
13.3 SHARED OBLIGATIONS. If an invoice or other evidence of an
obligation is received which under the terms of this Article XIII is partially
the obligation of Seller and partially the obligation of Buyer, then the parties
shall consult with each other, the Partnership shall promptly pay such
obligation to the obligee, and Seller shall promptly reimburse Buyer for
Seller's portion so paid.
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13.4 UNCOLLECTIBLE ACCOUNTS RECEIVABLE. Buyer (and, prior to the
Closing, Seller) shall cause Southeast and the Partnership to use commercially
reasonable efforts to collect in full, consistent with the past practices of the
Business, all accounts receivable of the Business (the "Accounts Receivable").
If the Accounts Receivable outstanding at the Closing shall not have been fully
collected within 120 days following the Closing Date in an amount equal to the
outstanding unpaid amounts thereof at the Closing, Buyer may require the Seller
to purchase any Accounts Receivable that have not been so fully collected at a
purchase price equal to the original outstanding amount of such Accounts
Receivable at the Closing less net collections thereon from the Closing Date to
the repurchase date; provided, however, that the Seller shall be required to
repurchase such unpaid Accounts Receivable only to the extent that the aggregate
amount of such unpaid Accounts Receivable exceeds the allowance for doubtful
accounts deducted from accounts receivable set forth on the Balance Sheets, and
if such an excess exists, the Seller shall only be required to pay an amount for
such unpaid Accounts Receivable equal to such excess; provided, further, during
such 120-day period, that Buyer may not settle or compromise any Accounts
Receivable without the prior written consent of Seller. As a condition to any
such repurchase, Buyer shall reconvey to the Seller the unpaid Accounts
Receivable to be repurchased and shall provide Seller with sufficient detail
regarding such Accounts Receivable. Buyer shall not transfer or convey such
Accounts Receivable to any other Person. Payment for the repurchase of any
Accounts Receivable shall be made within ten (10) days following the transfer
thereof to Seller. Buyer shall provide to the Seller any documents or
information reasonably requested by the Seller in connection with the Seller's
collection of any Accounts Receivable repurchased from Buyer.
ARTICLE XIV.
POST-CLOSING PROCEDURES
14.1 DELIVERY OF FILES. Within ten (10) days after Closing, Buyer
shall, at Buyer's expense, take delivery at Seller's present offices in San
Antonio, Texas of all of the Partnership's and Southeast's original land, lease,
revenue and cost accounting, geologic, geophysical, engineering and well files,
data and materials which relate to the Operating Assets. Applicable legal and
litigation files shall be delivered by Seller to Buyer at Seller's present
office location in San Antonio, Texas, subject to the Parties and their
attorneys making mutually acceptable arrangements for preserving the privileged
and confidential nature of protected information. Seller may retain copies of
its accounting and legal files, data and information, as might be needed by
Seller, and Seller shall retain all originals of insurance policies covering
periods prior to the Effective Time. Subject to the License Agreement, Seller
shall not retain originals or copies of any seismic, geological, geophysical or
engineering files, materials, data or interpretations thereof concerning the
Operating Assets sold hereunder, without Buyer's prior written consent; provided
however, that Seller shall not be required to deliver to Buyer, nor shall Buyer
be required to accept delivery of any such data or materials which either Party
reasonably believes to be subject to confidentiality agreements with third
parties that would prevent Buyer from obtaining such data or expose either Party
to a claim for material damages if Buyer were to receive such data or materials.
Notwithstanding the above, Seller shall be permitted to retain original tax and
financial accounting records for the period prior to the Closing, copies of
which will be delivered to Buyer.
14.2 THIRD PARTY DATA. To the extent not obtained or satisfied as
of Closing, Seller agrees to continue to use reasonable efforts, but without any
obligation to incur any cost or expense in connection therewith, and to
cooperate with Buyer's efforts to obtain for Buyer, the Partnership and
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Southeast (i) access to files, records and data relating to the Operating Assets
in the possession of third parties; (ii) access to wells constituting a part of
the Operating Assets operated by third parties for purposes of inspecting same;
and (iii) the waiver of confidentiality or other restrictions on the review by
and/or transfer of seismic, geophysical, engineering or other data pertaining to
the Operating Assets that might be triggered by Seller's assignment to Buyer of
the Partnership and Southeast.
14.3 COOPERATION. After the Closing, each Party shall provide the
other Party with reasonable access to all relevant documents, data and other
information (other than that which is subject to any attorney-client privilege)
which may be required by the other Party for the purpose of financial reporting,
preparing tax returns, filing refund claims, responding to any audit by any
taxing jurisdiction or replying to any third party or governmental claim or
demand concerning the Partnership, Southeast or the Operating Assets. Each Party
shall cooperate with all reasonable requests of the other Party made in
connection with contesting the imposition of Taxes. Notwithstanding anything to
the contrary in this Agreement, neither Party shall be required at any
time to disclose to the other Party any Tax Return or other confidential
information, except for Tax Returns concerning Taxes of the Partnership and
Southeast. Except where disclosure is required by applicable law or judicial
order, any information obtained by a Party pursuant to this Section 14.3 shall
be kept confidential by such Party, except to the extent disclosure is required
in connection with the filing of any Tax Returns or claims for refunds or in
connection with the conduct of an audit, or other proceedings in response to an
audit, by a taxing jurisdiction, or otherwise required by law or binding
judicial order.
14.4 PREFERENTIAL RIGHTS TO PURCHASE AND CONSENTS TO ASSIGNMENT.
Before Closing and for up to one year after Closing, the Parties shall continue
to provide reasonable cooperation in obtaining all required Consents to
Assignment and in complying with all enforceable Preferential Rights to Purchase
that remain in force after Closing. Buyer shall be primarily responsible for
handling such matters, shall assume all risks and liabilities in connection with
the rights of the holders thereof, and shall release, indemnify and defend
Seller against any claims, damages, suits, demands or other liabilities
associated with any Consents to Assignment or Preferential Rights to Purchase.
14.5 FILING AND RECORDING OF DOCUMENTS. Buyer shall promptly file
all appropriate forms, declarations or bonds with governmental agencies relative
to its assumption of ownership of Southeast, and Seller shall cooperate with
Buyer in connection with such filings. Seller shall not be responsible for any
loss to Buyer because of Buyer's failure to file or record documents correctly
or promptly.
14.6 FURTHER ASSURANCES. After Closing, each of the Parties will
execute, acknowledge and deliver to the other such further instruments, and take
such other action, as may be reasonably requested in order to more effectively
assure to each Party all of the respective properties, rights, titles,
interests, estates, and privileges intended to be assigned, delivered or to
inure to the benefit of such Party in consummation of the Transaction.
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14.7 INCIDENTAL COSTS. Each party shall bear its own respective
expenses incurred in connection with the Closing of the Transaction, including
its own consultants' fees, attorney's fees, accountants' fees, and other similar
costs and expenses.
ARTICLE XV.
SURVIVAL; INDEMNITIES
15.1 SURVIVAL. All representations, warranties or covenants made
herein, except for those in Sections 4.1(a), 4.1(e), 4.1(f), 4.1(g), 4.1(i),
4.1(k), 4.1(l), 4.1(m), 4.1(n), 4.1(o), 4.1(q), 4.1(u), 4.1(v), 4.1(w), 4.1(x),
4.1(y), 4.1(z), 4.1(aa), 4.1(bb) (with respect to Operating Assets only),
4.2(e), 4.2(i), Sections 7.1, 7.2, 7.4, 8.3, 9.1, 9.2(e), 9.9(d), 9.12(b),
9.12(c) and 9.13, and Articles XV, XVI, XVII and XXI, shall survive for two
years from the Closing Date. The representations and warranties or covenants
made in Sections 4.1(a), 4.1(g), 4.1(k), 4.1(l), 4.1(m), 4.1(o), 4.1(q), 4.1(u),
4.1(v), 4.1(w), 4.1(x), 4.1(y), 4.1(z), 4.1(aa), 4.1(bb) (with respect to
Operating Assets only) and Section 9.1 shall not survive Closing and shall
automatically expire upon Closing. The representations, releases, covenants,
indemnities, defenses and hold harmless obligations and other obligations
referenced in Sections 4.1(e), 4.1(f), 4.1(i), 4.1(n), 4.2(e), 4.2(i), 7.1, 7.2,
7.4, 8.3, 9.2(e), 9.9(d), 9.12(b), 9.12(c) and 9.13 and this Article XV, and all
provisions of Article XVI, Article XVII, and Article XXI shall each survive
Closing, and each shall continue to remain fully enforceable in accordance with
its terms.
15.2 BUYER'S INDEMNITY. EXCEPT AS EXPRESSLY AND SPECIFICALLY
INDICATED OTHERWISE IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION SECTIONS
9.9(D) AND 15.3), AFTER THE CLOSING DATE, BUYER SHALL AND HEREBY DOES RELEASE,
DEFEND, INDEMNIFY, SAVE, AND HOLD HARMLESS SELLER AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, AFFILIATES, EMPLOYEES, ATTORNEYS, CONTRACTORS AND AGENTS, AGAINST ANY
AND ALL DAMAGES WHICH ARISE OUT OF OR IN CONNECTION WITH THE OWNERSHIP OF,
OPERATION OF, PRODUCTION FROM OR ACCOUNTING BY, INCOME OF OR PAYMENTS BY THE
PARTNERSHIP, SOUTHEAST OR THE OPERATING ASSETS, AT ANY TIME EITHER BEFORE OR
AFTER THE EFFECTIVE TIME, OR WHICH ARISE OUT OF ANY ENVIRONMENTAL CONDITION OR
OTHER HAZARDOUS CONDITION RELATING TO OR AFFECTING ANY OPERATING ASSET AT ANY
TIME EITHER BEFORE OR AFTER THE EFFECTIVE TIME, INCLUDING WITHOUT LIMITATION,
ALL SUCH COSTS, CLAIMS OR LIABILITIES ARISING OUT OF SELLER'S NEGLIGENCE OR
STRICT LIABILITY.
15.3 SELLER'S INDEMNITY. SUBJECT TO THE TERMS AND CONDITIONS OF
THIS ARTICLE XV, SELLER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER, AND ITS
PARENT OR SUBSIDIARY COMPANIES, PARTNERS AND OTHER AFFILIATES (INCLUDING AFTER
CLOSING, SOUTHEAST AND THE PARTNERSHIP), AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, AFFILIATES, EMPLOYEES, ATTORNEYS, CONTRACTORS AND AGENTS (HEREINAFTER
COLLECTIVELY REFERRED TO AS THE "BUYER GROUP"), FROM AND AGAINST ANY AND ALL
DAMAGES ASSERTED AGAINST, RESULTING TO, IMPOSED UPON, OR INCURRED BY THE BUYER
GROUP, DIRECTLY OR INDIRECTLY, BY REASON OF OR
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RESULTING FROM OR RELATING TO (I) ANY BREACH BY SELLER (FOR WHICH SELLER SHALL
BE RESPONSIBLE) OF ITS SURVIVING REPRESENTATIONS, WARRANTIES, COVENANTS OR
AGREEMENTS CONTAINED IN THIS AGREEMENT, (II) ANY LIABILITIES OF SOUTHEAST AND
THE PARTNERSHIP WHICH ARE UNRELATED TO THE OPERATING ASSETS, (III) ANY
LIABILITIES OF SOUTHEAST AND SOUTHEAST'S INTEREST IN THE PARTNERSHIP FOR INCOME
TAXES PRIOR TO CLOSING, AND (IV) ANY EXISTING LIABILITIES OF SOUTHEAST AND
SOUTHEAST'S INTEREST IN THE PARTNERSHIP OWED UNDER FEDERAL LEASES FOR PRIOR
ROYALTIES RELATED TO THE PERIOD OF TIME PRIOR TO CLOSING.
15.4 PROCEDURE FOR INDEMNIFICATION.
(a) Any Indemnified Party making a claim for indemnification
hereunder shall notify the indemnifying party or parties of the claim in
writing. Subject to Sections 17.1, 17.2, 17.3 and 17.4, an indemnified party may
take any and all actions against an indemnifying party or parties to enforce its
rights to indemnification under this Agreement.
(b) With respect to third Person claims which are indemnifiable
hereunder, promptly after receipt by an Indemnified Party under Sections 15.2 or
15.3 of notice of the commencement of any action, such Indemnified Party shall,
if a claim in respect thereof is to be made against an Indemnifying Party under
such Section, give written notice to the Indemnifying Party of the commencement
thereof. The failure to so notify the Indemnifying Party shall relieve the
Indemnifying Party of any liability that it may have to an Indemnified Party
with respect to such action, only to the extent the Indemnifying Party is
prejudiced by the failure to be so notified. In case any such action shall be
brought against an Indemnified Party and the Indemnified Party shall give
written notice to the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Party. If the Indemnifying Party elects to
assume the defense of such action, the Indemnified Party shall have the right to
employ separate counsel at its own expense and to participate in the defense
thereof. If the Indemnifying Party elects not to assume (or fails to assume) the
defense of such action, the Indemnified Party shall be entitled to assume the
defense of such action with counsel of its own choice, at the expense of the
Indemnifying Party. If the action is asserted against both the Indemnifying
Party and the Indemnified Party and there is a conflict of interests which
renders it inappropriate for the same counsel to represent both the Indemnifying
Party and the Indemnified Party, the Indemnifying Party shall be responsible for
paying for separate counsel for the Indemnified Party; provided, however, that
if there is more than one Indemnified Party, the Indemnifying Party shall not be
responsible for paying for more than one separate firm of attorneys to represent
the Indemnified Parties, regardless of the number of Indemnified Parties. If the
Indemnifying Party elects to assume the defense of such action, (a) no
compromise or settlement thereof may be effected by the Indemnifying Party
without the Indemnified Party's written consent (which shall not be unreasonably
withheld) unless the sole relief provided is monetary damages that are paid in
full by the Indemnifying Party and (b) the Indemnifying Party shall have no
liability with respect to any compromise or settlement thereof effected without
its written consent (which shall not be unreasonably withheld).
15.5 EXCLUSIVITY. The parties hereto agree that, in relation to any
breach, default, or nonperformance of any representation, warranty, covenant, or
agreement made or entered into by
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a party hereto pursuant to this Agreement or any certificate, instrument, or
document delivered pursuant hereto or arising out of the transactions
contemplated herein or the ownership or operation of the Operating Assets, the
only relief and remedy available to the other party hereto in respect of said
breach, default, or nonperformance shall be:
(a) termination, but only if said termination is expressly
permitted under the provisions of Article XX; or
(b) actual damages, but only to the extent properly claimable
hereunder and as limited pursuant to this Article XV or otherwise hereunder; or
(c) specific performance if a court of competent jurisdiction in
its discretion grants the same; or
(d) injunctive or declaratory relief if a court of competent
jurisdiction in its discretion grants the same.
15.6 ASSIGNMENT OF THIRD PERSON INDEMNITIES. To the extent the same
are assignable by an Indemnified Party, such Indemnified Party does hereby
assign to the Indemnifying Party all rights to defense, contribution and
indemnity that the Indemnified Party may hold with respect to the obligations
for which the Indemnifying Party is indemnifying and defending the Indemnified
Party hereunder, and the Indemnifying Party shall be subrogated to assert the
Indemnified Party's rights to such third-party defense, contribution and
indemnity obligations with respect to the indemnified claims or Actions.
ARTICLE XVI.
TAX MATTERS
16.1 INDEMNIFICATION FOR TAXES.
(a) Seller shall be responsible for, and shall indemnify Buyer
against, all (i) Income Taxes imposed on Southeast or Southeast's interest in
Partnership, and all Liabilities, losses, costs, fines, penalties, damages
(actual, punitive or other), reasonable attorneys' fees, and expenses arising
therefrom, relating to (A) taxable periods or portions thereof ending on or
before the Closing Date, (B) Income Taxes resulting from the application of
Treas. Reg. ss. 1.1502-6 or any comparable state, local or foreign tax law
attributable to Tesoro Parent, or any corporation or entity which is or has been
affiliated with or been part of a combined, unitary or affiliated group with
Tesoro Parent, and (C) the portion of the Income Taxes for any Straddle Period
(as defined in subsection 16.1(e)) allocable to Sellers with respect to either
Southeast or Southeast's interest in the Partnership under subsection 16.2(e)
and (ii) all Other Taxes imposed on Southeast or Southeast's interest in the
Partnership relating to the taxable periods or portions thereof ending on or
before the Effective Time (allocated as described in Section 13.3); provided,
Sellers shall not be responsible for, and shall not be required to indemnify
Buyer against, any Taxes to the extent that such Taxes do not exceed the accrued
liability for Taxes on the Balance Sheets which are taken into account in
determining the Working Capital.
(b) Buyer shall be responsible for and shall indemnify Sellers
against all (i) Income Taxes imposed upon Southeast or Southeast's interest in
the Partnership and all Liabilities, losses,
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costs, fines, penalties, damages (actual, punitive, or other), reasonable
attorneys' fees and expenses arising therefrom, relating to (A) taxable periods
beginning after the Closing Date or (B) the portion of the Income Taxes for any
Straddle Period which are allocable to Buyer under subsection 16.2(e), and (ii)
except as provided in Section 13.3 and in this Article XVI, all Other Taxes
imposed upon Southeast or Southeast's interest in the Partnership and all
Liabilities, losses, costs, fines, penalties, damages (actual, punitive or
other), reasonable attorneys fees and expenses arising therefrom arising in or
relating to taxable periods or portions thereof beginning after the Effective
Time (allocated as described in Section 13.3).
(c) Each Party shall promptly notify the other Party of the
commencement of any demand, claim, audit, examination, Action or other proposed
change or adjustment by any Taxing Authority concerning any Tax which could give
rise to a claim for indemnity pursuant to subsection 16.1(a) or subsection
16.1(b), as the case may be (each a "Tax Claim"). Such notice shall contain
factual information describing the asserted Tax Claim in reasonable detail and
shall include copies of any notice or other document received from any Taxing
Authority in respect of any such asserted Tax Claim.
(d) Seller, at its own expense, shall have the sole right to
represent Southeast and the Partnership's interests in any Tax Claim for Taxes
for which it is indemnifying Buyer against and to employ counsel of its choice.
Buyer shall have the right to participate in such Action at its own expense.
Seller shall not consent to any settlement that reasonably would be expected to
have an adverse effect on the Income Taxes of Southeast or Southeast's interest
in the Partnership in any period after the Closing Date without Buyer's consent,
which consent shall not be unreasonably withheld. Buyer's consent shall in no
way reduce any indemnification due to Buyer under subsection 16.1(a). If Seller
elects to control the defense, compromise or settlement of any Tax Claim, Seller
shall keep Buyer informed of the progress and disposition of such Tax Claim.
Buyer shall handle any other Tax Claims of Southeast or Southeast's interest in
the Partnership, and Buyer shall be entitled to defend, compromise or settle
such Tax Claims in its sole discretion without in any way reducing its rights to
indemnification under subsection 16.1(a), unless any such settlement would give
rise to a tax claim against Seller, and in such event such settlement shall be
subject to Seller's consent, which shall not be unreasonably withheld.
(e) With respect to any taxable period of Southeast or the
Partnership beginning before and ending after the Closing Date (a "Straddle
Period"), Buyer shall control, and Seller, at its own expense, shall have the
right to participate in, the defense and settlement of any Tax Claim and each
Party shall cooperate with the other Party and there shall be no settlement or
closing or other agreement with respect thereto without the consent of the other
Party, which consent shall not be unreasonably withheld; provided, that if
either Party shall refuse (the "Refusing Party") to consent to any settlement,
closing or other agreement agreed to by the relevant Taxing Authority with
respect to any such Tax Claim that the other party (the "Accepting Party")
proposed to accept (a "Proposed Settlement"), then (i) the Accepting Party's
Liability with respect to the subject matter of the Proposed Settlement shall be
limited to the amount that such Liability would have been if the Proposed
Settlement had been accepted, and (ii) the Refusing Party shall be responsible
for all Liabilities and expenses incurred or imposed thereafter in connection
with the contest of such Tax Claim to the extent that the final settlement is
more than the Proposed Settlement.
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16.2 OTHER TAX MATTERS.
(a) All Tax sharing agreements between Southeast and any other
Person, including without limitation, the Affiliates of Seller, are hereby
terminated as of the Closing Date and all rights and obligations of Southeast
with respect to Taxes shall be as provided herein.
(b) Any Tax allocation agreement or arrangement in effect shall be
extinguished in full as of the Closing Date.
(c) Tax Returns (each a "Pre-Closing Return") which are required
to be filed with respect to Southeast or Southeast's interest in the Partnership
on a consolidated, unitary or other combined basis with the Tesoro Group, or the
appropriate parent for a taxable period which ends on or before the Closing Date
(a "Pre-Closing Period") shall be prepared and filed by (or shall be the
responsibility of) Seller, which shall include the preparation and filing of the
consolidated federal and state income Tax Returns of the Tesoro Group which
includes Southeast's interest in the Partnership for the period up to and
including the Closing Date. In the case of those jurisdictions which require a
short-period Tax Return ending on or before the Closing Date, Seller shall
prepare and file all appropriate returns required to be filed with respect to
Income Taxes attributable to the operations and the Operating Assets for the
pre-Closing periods. All such Pre-Closing Returns shall be filed on a basis
consistent with prior Tax Returns filed with respect to Southeast's interest in
the Partnership. Seller or the appropriate parent of Southeast or the
Partnership shall timely pay or cause to be paid all Taxes shown on such
Pre-Closing Returns. All Tax Returns which (i) are required to be filed with
respect to Southeast's interest in the Partnership on a separate basis
(including the preparation of supporting schedules, Tax Returns and other Tax
information with respect to Southeast's interest in the Partnership necessary
for completion of the Pre-Closing Returns) after the Closing Date for a
Pre-Closing Period (a "Post-Closing Return"), and (ii) are required to be filed
or with respect to Southeast's interest in the Partnership for a taxable period
that ends after the Closing Date, including any Tax Return (a "Straddle Return")
for a Straddle Period, shall be prepared and filed by Buyer; subject to the
rights to indemnification and other rights under 16.1(a) and subsection 16.2(e),
Buyer shall timely pay or cause to be paid all Taxes shown on such Tax Returns.
(d) Seller agrees to provide Buyer and Buyer agrees to provide
Seller with such cooperation and information as the other shall reasonably
request in connection with the preparation or filing of any Tax Return required
under this Agreement.
(e) With respect to any Straddle Period, to the extent permitted
by applicable law, Seller shall elect to treat the Closing Date as the last day
of the taxable period. If applicable law, regulation or Governmental Order will
not permit the Closing Date to be the last day of a period, the Income Tax
attributable to the operations of Southeast and Southeast's interest in the
Partnership for the portion of the period up to and including the Closing Date
shall be (i) in the case of a flat minimum dollar amount Tax, the total amount
of such Taxes multiplied by a fraction, the numerator of which is the number of
days in the partial period through and including the Effective Time and the
denominator of which is the total number of days in such Straddle Period, and
(ii) in the case of all Income Taxes, the Tax computed on the basis of the
taxable income or loss attributable to Southeast's interest in the Partnership
for the partial period through and including the Closing Date as determined from
their Books and Records. All Other Taxes arising with or related to a Straddle
Period will be allocated as provided in Section 13.3.
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(f) With respect to any Post-Closing Return or Straddle Return,
Buyer shall deliver, at least 30 days prior to the due date for filing such Tax
Return (including any extension) to Seller a statement setting forth the amount
of Income Tax which Seller owes pursuant to subsection 16.1(a), including the
allocation of Taxes under subsection 16.2(e), and copies of such Tax Return.
Seller shall have the right to review such Tax Returns and the allocation of
Taxes and to suggest to Buyer any reasonable changes to such Tax Returns no
later than 15 days prior to the date for the filing of such Tax Returns. Seller
and Buyer agree to consult and to attempt to resolve in good faith any issue
arising as a result of the review of such Tax Returns and allocation of Taxes
and mutually to consent to the filing as promptly as possible of such Tax
Returns. Not later than 15 days before the due date for the payment of Income
Taxes with respect to such Tax Returns, Seller shall pay to Buyer an amount
equal to the Income Taxes as agreed to by Buyer and Seller as being owed by
Seller, pursuant to subsection 16.1(a). In the event that Buyer and Seller
cannot agree on the amount of Income Taxes owed by Seller, with respect to a
Straddle Return or a Post-Closing Return, Seller shall pay to Buyer the amount
of Income Taxes reasonably determined by Buyer to be owed by them pursuant to
subsection 16.1(a). Within ten (10) days following such payment, Seller and
Buyer shall refer the matter to an independent "Big-Five" accounting firm agreed
to by Buyer and Seller to arbitrate the dispute. Seller and Buyer shall equally
share the fees and expenses of such accounting firm, and its determination as to
the amount owing by Seller, pursuant to Section 16.1(a) with respect to a
Straddle Return or Post-Closing Return shall be binding on both parties. Within
five (5) days of the determination by such accounting firm, if necessary, the
appropriate Party shall pay the other Party any amount which is determined by
such accounting firm to be owed. Seller shall be entitled to reduce its
obligation to pay Taxes with respect to a Straddle Return or a Post-Closing
Return by the amount of any estimated Taxes paid with respect to such Taxes by
or on behalf of Southeast on or before the Closing Date.
(g) Seller shall have the right to all refunds of Taxes (including
interest thereon), which relate to Taxes of Southeast or Southeast's interest in
the Partnership for Pre-Closing Periods and Straddle Periods, to the extent
provided in the following sentences. Buyer shall pay over to Seller any such
refunds within ten (10) days of receipt thereof, net of any Taxes imposed on
Buyer or Southeast by reason of the receipt of such refund. To the extent any
refund of Taxes is made with respect to a Pre-Closing Period or a Straddle
Period, such refund shall be apportioned between Buyer and Seller, based on the
appropriate allocation method set forth in Section 16.2(e).
(h) Buyer and Seller agree to consult and resolve in good faith
any issues arising in connection with the preparation or review of any Tax
Return or the calculation of any Tax described in this Section 16.2.
(i) At the Closing, Seller, Southeast and the Partnership each
shall deliver to Buyer certificates signed under penalties of perjury (i)
stating that it is not a foreign corporation, foreign partnership, foreign trust
or foreign estate, (ii) providing its U.S. Employer Identification Number and
(iii) providing its address, all pursuant to Section 1445 of the Code.
16.3 EXCLUSIVE REMEDY FOR TAXES. This Article XVI provides the sole
and exclusive remedy for any claim against Seller for indemnification, damages
or breach of any representation or warranty with respect to or relating to
Taxes.
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ARTICLE XVII.
DEFAULT AND REMEDIES
17.1 LIABILITIES UPON TERMINATION. If Closing does not occur due to
Seller's violation of the terms of this Agreement, then Buyer may seek such
legal or equitable remedies as Buyer may desire including, without limitation,
damages for the breach or failure of any representation, warranty, covenant or
agreement contained herein and the right to enforce specific performance of this
Agreement. If Closing does not occur due to Buyer's violation of the terms of
this Agreement, then Seller may seek such legal or equitable remedies as Seller
may desire, including, without limitation, damages for the breach or failure of
any representation, warranty, covenant or agreement contained herein and the
right to enforce specific performance of this Agreement.
17.2 RECOVERY OF COSTS. The prevailing Party in any litigation or
alternative dispute resolution proceeding between the Parties in a dispute
arising under this Agreement shall be entitled to recover, from the other Party,
reimbursement for reasonable attorneys fees, expert fees, court costs and costs
of discovery and investigation.
17.3 WAIVER OF EXTRAORDINARY DAMAGES. TO THE FULL EXTENT ALLOWED BY
LAW, AND EXCEPT AS MAY BE INCLUDED IN THIRD PARTY DAMAGES SUBJECT TO ANY
INDEMNITY OBLIGATION HEREUNDER, THE PARTIES HEREBY WAIVE AND RELEASE ANY RIGHTS
OR CLAIMS TO PUNITIVE OR EXEMPLARY DAMAGES RESULTING FROM A BREACH OF THIS
AGREEMENT. THE PARTIES HEREBY WAIVE THE APPLICATION OF THE TEXAS DECEPTIVE TRADE
PRACTICES- CONSUMER PROTECTION ACT TO THE TRANSACTION.
17.4 WAIVER OF JURY TRIAL. SELLER AND BUYER DO HEREBY IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, SUIT OR OTHER LEGAL PROCEEDING BASED UPON, ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTION.
17.5 INDEPENDENT OBLIGATIONS. The express release, indemnity, defense
and hold harmless obligations contained herein shall exist separate and
independent from the representations and warranties in this Agreement, and the
limitations of representations and warranties shall not be construed to limit
the scope of the express releases, indemnities, and defense and hold harmless
obligations.
17.6 CHANGES OF LAW. Sellers do not make any representations and
warranties and do not assume any responsibilities or liabilities for any Damages
to Buyer arising out of or related to changes in the law or new interpretations
of existing law that may occur after Closing.
17.7 MERGER. No representations, warranties, indemnities, covenants or
other provisions of this Agreement shall merge with provisions of any other
instrument.
ARTICLE XVIII.
NOTICES
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18.1 NOTICES. All notices authorized or required by any of the
provisions of this Agreement, unless otherwise specifically provided, shall be
in writing and delivered in person or by United States mail, courier service,
telegram, or telephone facsimile, postage or charges prepaid, and addressed to
the Parties at the respective addresses set forth below:
If to Seller: Tesoro Petroleum Corporation.
300 Concord Plaza Drive
San Antonio, Texas 78216-6999
Attention: James C. Reed, Jr.
Fax Number: (210) 283-2400
Phone Number: (210) 828-8484
With a copy to: Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010
Attention: Michael W. Conlon
Fax Number: (713) 651-5246
Phone Number: (713) 651-5151
If to Buyer: EEX Operating LLC
2500 City West Boulevard, Suite 1400
Houston, Texas 77042
Attention: Janice K. Hartrick
Fax Number: (713) 243-3359
Phone Number: (713) 243-3371
With a copy to: Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201
Attention: Michael E. Dillard
Fax Number: (214) 969-4343
Phone Number: (214) 969-2876
Any Party may, by written notice so delivered to the other, change the address
to which delivery shall thereafter be made.
ARTICLE XIX.
CONFIDENTIALITY AND DISCLOSURES
19.1 NON DISCLOSURE OF DATA. To the extent Buyer does not acquire all
of the Membership Interests for any reason, Buyer shall not directly or
indirectly disclose or use any materials, data or other information provided by
or obtained from Seller, Southeast or the Partnership, and Buyer and its
representatives shall continue to be bound by the terms of the existing
Confidentiality Agreement dated June 17, 1999, between the Parties.
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19.2 PUBLIC ANNOUNCEMENTS. The Parties hereto agree that prior to
making any public announcement or statement with respect to the Transaction, the
Party desiring to make such public announcement or statement shall consult with
the other Party and exercise reasonable efforts to obtain the consent of the
other Party to the text of such public announcement or statement. If the Parties
cannot agree upon the text of any such public disclosure, a Party may
nevertheless disclose information with respect to the to the extent required by
applicable law or by any applicable rules, regulations or orders of any
governmental or judicial authority or agency having jurisdiction or to the
extent such disclosure is necessary to comply with requirements of the New York
Stock Exchange.
ARTICLE XX.
TERMINATION
20.1 TERMINATION . Notwithstanding anything herein to the contrary,
this Agreement and the Transaction may be terminated in the following instances:
(a) At any time by the mutual written agreement of Buyer and
Seller;
(b) By Seller, if the Settlement Price Adjustment exceeds fifteen
percent (15%) of the Purchase Price; or by Buyer, if the sum of the Settlement
Price Adjustment and any reductions to the purchase price as a result of the
exercise by third parties of Preferential Rights to Purchase exceeds fifteen
percent (15%) of the Purchase Price;
(c) By Seller or Buyer, if any of the Casualty Price individually
exceeds ten percent (10%) of the Purchase Price; or
(d) By Buyer or Seller, if Closing has not taken place before
December 31, 1999; provided, however, that the Party seeking to terminate this
Agreement pursuant to Section 20.1(d) shall not have breached in any material
respect its obligations under this Agreement in any manner that shall have
proximately contributed to the failure to consummate the Transaction prior to
December 31, 1999.
ARTICLE XXI.
MISCELLANEOUS
21.1 ENTIRE AGREEMENT. This Agreement, together with the Stock Purchase
Agreement, embody the entire agreement between the Parties (superseding all
prior agreements, negotiations, representations, discussions, arrangements and
understandings related to the subject matter hereof), and may be supplemented,
altered, amended, modified or revoked only by a written instrument signed by
each of the Parties; provided, however, the Confidentiality Agreement dated June
17, 1999, between the Parties shall remain effective until Closing. If the sale
of the Operating Assets to Buyer is not consummated, then the Confidentiality
Agreement shall remain effective as stated therein.
21.2 NO VERBAL MODIFICATIONS OR WAIVERS. Any of the terms, provisions,
covenants, representations, warranties or conditions hereof may be supplemented,
amended, modified, released or waived only by a written instrument executed by
the Parties. Except as otherwise expressly
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provided in this Agreement, the failure of any Party at any time or times to
require performance of any provision hereof shall in no manner affect such
Party's right to enforce the same. No waiver by any Party of any condition, or
of the breach of any term, provision, covenant, representation or warranty
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such condition or breach or a waiver of any other condition or of the
breach of any other term, provision, covenant, representation or warranty.
21.3 SEVERABILITY. If any term or provision of this Agreement is held
to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining terms and provisions of this Agreement shall not
be affected thereby, and in lieu of each such illegal, invalid or unenforceable
term or provision, there shall be added automatically to this Agreement a legal,
valid and enforceable term or provision as similar as possible to the term or
provision declared illegal, invalid or unenforceable.
21.4 INTERPRETATION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the singular
shall be held to include the plural, unless the context otherwise requires. None
of the terms or conditions of this Agreement, including any Exhibits or
Schedules hereto, shall be construed for or against any Party hereto on the
basis that such Party did or did not author the same. All terms of this
Agreement and the Exhibits shall be harmonized, but in the event of any conflict
between the definition of a term in Article I and a more complete description or
limitation of such term in a subsequent Article, the subsequent Article shall
prevail. This Agreement is being executed in connection with the Stock Purchase
Agreement, as amended by the Amendment, and the two instruments shall be
harmonized, to the extent possible, provided however, that no Party shall be
entitled to receive duplicate payments (including, without limitation, duplicate
payment of any purchase price) or other relief regarding the same matters under
both this Agreement and the Stock Purchase Agreement, as amended, and the rights
of the Parties hereunder are subject to the terms of the Stock Purchase
Agreement, as amended by the Amendment. In the event of any conflict, redundancy
or inconsistency between the terms of the Stock Purchase Agreement, as amended,
and this Agreement (including without limitation any conflict, redundancy or
inconsistency with respect to the provisions relating to indemnification,
payment of purchase price, adjustments to the purchase price, transfer of the
Membership Interests, representations, warranties and covenants or any
provisions of the exhibits or schedules), the provisions of the Stock Purchase
Agreement, as amended, shall control and prevail in all respects. The Article
and Section headings are for convenience only and shall have no significance in
the interpretation hereof.
21.5 COUNSEL. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT IT WAS REPRESENTED
BY COUNSEL OF ITS OWN SELECTION IN NEGOTIATION AND PREPARATION OF THE TERMS OF
THE AGREEMENT AND THE ATTACHED EXHIBITS AND THAT IT IS SOPHISTICATED AND
EXPERIENCED IN TRANSACTIONS OF THIS TYPE AND IS AWARE OF ALL TERMS AND
CONDITIONS CONTAINED HEREIN. EACH PARTY SHALL BE RESPONSIBLE FOR THE COSTS AND
EXPENSES OF ITS OWN COUNSEL.
21.6 GOVERNING LAW. This Agreement and other documents delivered
pursuant to this Agreement and the legal relations between the Parties shall be
governed and construed and enforced in accordance with the laws of the State of
Texas, without giving effect to principles of conflict of laws.
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21.7 CONSENTS. Except as expressly provided otherwise herein, any
consent required of a Party with respect to any matters covered by this
Agreement shall not be unreasonably withheld or action with respect thereto
unduly delayed.
21.8 TIME OF ESSENCE. Time is of the essence in all matters provided
for in this Agreement.
21.9 BINDING EFFECT, ASSIGNMENT. All the terms, provisions, covenants,
representations, warranties and conditions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the Parties and, except
as otherwise prohibited, their respective successors; however, this Agreement
and the rights and obligations hereunder shall not be assignable or delegable by
any Party without the express written consent of the non-assigning or
non-delegating Parties, which consent may be withheld for any or no reason;
provided that Buyer may assign some or all of its rights, duties and obligations
under this Agreement to an Affiliate of EEX Corporation. Any assignment or
delegation without such consent will be void.
21.10 NO RELATIONSHIP. Nothing contained in this Agreement shall be
deemed to create a joint venture, partnership, agency or other fiduciary
relationship between the Parties, nor is this Agreement intended to create, nor
shall it be construed to create, any rights in any third party, to create any
third party beneficiaries or to ratify, adopt or confirm any other lease,
agreement or other instrument, whether or not affecting Southeast, the
Partnership or the Operating Assets. Notwithstanding the above, the Parties
acknowledge that the Transaction shall be subject to the rights of all third
parties holding Preferential Rights to Purchase and Consents to Assignment
concerning the Operating Assets, to the extent that they are valid, in effect
and enforceable by reason of the Transaction, and that such third party rights
shall be handled as set forth herein.
21.11 NO RECORDATION. Without limiting any Party's right to file suit
to enforce its rights under this Agreement, Buyer and Seller expressly covenant
and agree not to record or place of record this Agreement or any copy or
memorandum hereof, unless required under the Securities Exchange Act of 1934.
21.12 EXHIBITS AND SCHEDULES. All Exhibits and Schedules which are
referred to herein are hereby made a part hereof and incorporated herein by
reference.
21.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each and every counterpart shall be deemed for all purposes
one agreement.
21.14 NO THIRD PARTY BENEFICIARIES. Any agreement contained, expressed
or implied in this Agreement shall be only for the benefit of the Parties hereto
and the Indemnified Parties specified in Article XV and their respective legal
representatives, successors and assigns. Such agreements shall not inure to the
benefit of any employees of Seller, Southeast or the Partnership (except in
their capacity as Indemnified Parties) or the obligees of any indebtedness of
any Party hereto, it being the intention of the Parties hereto that no Person
shall be deemed a third party beneficiary of this Agreement, except to the
extent a third Person is expressly given rights herein.
21.15 JOINT AND SEVERAL LIABILITY. Tesoro Petroleum Corporation and
Tesoro Gas Resources Company, Inc. agree to be jointly and severally liable for
all of the Seller's duties and obligations hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
SELLER BUYER
TESORO PETROLEUM CORPORATION EEX OPERATING LLC
By: /s/ SHARON L. LAYMAN By: EEX CORPORATION
-------------------------------
Name: Sharon L. Layman By: /s/ RICHARD S. LANGDON
----------------------------- ----------------------------------
Title: Vice President and Treasurer Name: Richard S. Langdon
----------------------------- ---------------------------------
Title: EVP and Chief Financial Officer
TESORO GAS RESOURCES COMPANY, INC. --------------------------------
By: /s/ JEFFREY B. FABIAN
------------------------------
Name: Jeffrey B. Fabian
----------------------------
Title: President
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The schedules and exhibits referenced in this Purchase Agreement have been
omitted. The Registrant will furnish a copy of any omitted schedules and
exhibits to the Securities and Exchange Commission upon request.