EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
BPK RESOURCES, INC.
AND
BP PREFERRED ACQUISITION, LLC
JULY ___, 2004
TABLE OF CONTENTS
ARTICLE I: MERGER OF CNF WITH AND INTO JLL AND RELATED MATTERS..............1
1.1 The Purchase and Sale......................................1
ARTICLE II: THE CLOSING.....................................................3
2.1 Closing Date...............................................3
2.2 Closing Transactions.......................................3
ARTICLE III: CERTAIN CORPORATE ACTION.......................................5
3.1 Organization and Qualification.............................5
3.2 Authorization; Validity and Effect of Agreement............5
3.3 No Conflict; Required Filings and Consents.................6
3.4 Investment Intent..........................................6
3.5 Brokers and Finders Fees...................................7
ARTICLE III: CERTAIN CORPORATE ACTION.......................................7
4.1 Organization and Qualification.............................7
4.2 Authorization; Validity and Effect of Agreement............7
4.3 No Conflict; Required Filings and Consents.................8
4.4 Title to the Interests.....................................8
4.5 Brokers and Finders........................................8
ARTICLE V: AGREEMENTS OF THE PARTIES........................................8
5.1 Access to Information......................................8
5.2 Confidentiality............................................9
5.3 Best Efforts; Consents.....................................9
5.4 Further Assurances........................................10
5.5 Public Announcements......................................10
5.6 Notification of Certain Matters...........................10
5.7 Prohibition on Trading in Securities......................11
5.8 Schedules and Exhibits....................................11
ARTICLE VI: CONDITIONS TO CONSUMMATION OF THE MERGER.......................11
6.1 Conditions to Obligations of BP Acquisition...............11
6.2 Conditions to Obligations of the Company..................12
6.3 Other Conditions to Obligations of the
Company and BP Acquisition.............................. .12
ARTICLE VII: INDEMNIFICATION...............................................13
7.1 Indemnification by BP Acquisition.........................13
7.2 Indemnification Procedures for Third-Party Claim..........13
7.3 Indemnification Procedures for Non-Third Party Claims.....14
7.4 Limitations on Indemnification............................15
7.5 Exclusive Remedy..........................................15
8.1 Termination...............................................15
8.2 Procedure and Effect of Termination.......................16
ARTICLE IX: MISCELLANEOUS..................................................16
9.1 Entire Agreement..........................................16
9.2 Amendment and Modifications...............................16
9.3 Extensions and Waivers....................................16
9.4 Successors and Assigns....................................17
9.5 Survival of Representations, Warranties and Covenants.....17
9.6 Headings; Definitions.....................................17
9.7 Severability..............................................17
9.8 Specific Performance......................................17
9.9 Expenses..................................................18
9.10 Notices...................................................18
9.11 Governing Law.............................................18
9.12 Arbitration...............................................18
9.13 Counterparts..............................................19
9.14 Certain Definitions.......................................19
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Schedules
3.1 Certificate of Formation and Operating Agreement of BP
Acquisition
4.4 Liens
Exhibits
A - Form of Consent and General Release of Trident
B - Form of Consent and General Release of CSOR
C - Form of Assignment of Partnership Interests
D - Form of Power of Attorney E - Form of Adoption Agreement
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), is made and entered
into this ____ day of July, 2004, by and between BPK RESOURCES, INC. a Nevada
corporation (the "Company"), and BP PREFERRED ACQUISITION, LLC, a Delaware
limited liability company ("BP Acquisition").
RECITALS
WHEREAS, the Board of Directors of the Company and the Manager of BP
Acquisition have approved, and deem it advisable and in the best interests of
their respective companies and stockholders or interest holders, as the case may
be, to consummate the transactions contemplated hereby upon the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, the Company wishes to sell to BP Acquisition, and BP Acquisition
wishes to purchase, certain assets of the Company (together with all other
transactions contemplated hereby, the "Transactions"); and
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
THE PURCHASE AND SALE
1.1 THE PURCHASE AND SALE.
Upon the terms and subject to the conditions set forth in this Agreement,
on the Closing Date:
(a) the Company shall sell, and BP Acquisition shall purchase, the
following assets of the Company:
(i) One hundred percent (100%) of the Company's ownership interest
in CSR-Hackberry Partners, L.P. (the "CSR-Hackberry Interest");
(ii) One hundred percent (100%) of the Company's ownership interest
in BPK-South Valentine, L.P. (the "South Valentine Interest");
(iii) One hundred percent (100%) of the Company's ownership interest
in PH Gas, L.P. (the "PH Gas Interest");
(iv) One hundred percent (100%) of the Company's ownership interest
in Touchstone Resources 2001-Hackberry Drilling Fund, L.P. (the "2001 Hackberry
Interest");
(v) One hundred percent (100%) of the Company's ownership interests
in Louisiana Shelf Partners, L.P. (the "LSP Interest");
(vi) One hundred percent (100%) of the Company's ownership interests
in PHT Partners, L.P. (the "PH Partners Interest"); and
(vii) One hundred percent (100%) of the Company's ownership
interests in LS Gas, LLC (the "LS Gas Interest" and together with the
CSR-Hackberry Interest, South Valentine Interest, PH Gas Interest, 2001
Hackberry Interest, LSP Interest, and PH Partners Interest, the "Interests");
and
(b) BP Acquisition shall cause the Company to be released from any and all
liabilities and obligations under the following notes and agreements:
(i) the Loan Agreement, dated April 25, 2002 (the "Loan Agreement"),
by and between the Company and Trident Growth Fund, L.P. ("Trident"), the
Security Agreement, dated April 25, 2002 (the "Security Agreement"), by and
between the Company and Trident, and the 12% Secured Convertible Note, dated
April 25, 2002, in the principal amount of $1,500,000, issued to Trident (the
"April Note" and together with the Loan Agreement and Security Agreement, the
"April Loan Documents");
(ii) the First Amended Loan Agreement, dated July 29, 2003, between
the Company and Trident (the "Amended Loan Agreement"), the First Amended
Security Agreement, dated July 29, 2003, by and between the Company and Trident
(the "Amended Security Agreement") and the 12% Secured Convertible Note, dated
July 29, 2003, in the principal amount of $600,000, issued to Trident (the "July
Note"; and together with the Amended Loan Agreement and the Amended Security
Agreement, the "July Loan Documents"; and together with the April Loan
Documents, the "Trident Loan Documents"); and
(iii) the 10% Promissory Note, dated ___________, 2003, in the
original principal amount $1,500,000, originally issued to Endeavour
International Corporation (f/k/a Continental Southern Resources, Inc.) and
currently held by CSOR Preferred Liquidation, LLC, a Delaware limited liability
company ("CSOR"), with an outstanding principal balance of $670,000 (the "CSOR
Note") and any and all other agreements and documents related to the CSOR Note
(together with the CSOR Note, the "CSOR Loan Documents").
(c) By purchasing the Interests, BP Acquisition will be the sole owner of
the Interests and all of the rights and obligations incident to such ownership
and will be solely responsible for all capital calls, capital contributions and
any and all other Liabilities related to the Interests.
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ARTICLE II
THE CLOSING
2.1 CLOSING DATE.
The closing of the Transactions (the "Closing") shall take place at a time
and on a date to be specified by the parties (the "Closing Date") at the offices
of Duane Morris LLP, 51 Haddonfield Road, Suite 340, Cherry Hill, New Jersey,
08002, or at such other place as may be mutually agreed upon in writing by the
parties hereto.
2.2 CLOSING TRANSACTIONS.
(a) At the Closing, the following transactions shall occur, all of such
transactions being deemed to occur simultaneously:
(i) BP Acquisition shall deliver or cause to be delivered to the
Company the following documents and/or shall take the following actions:
(A) The following documents executed by Trident:
(1) Consent and General Release in substantially the form
attached hereto as Exhibit A;
(2) The April Note;
(3) The July Note;
(4) All UCC-3 Termination Statements, mortgage satisfaction
pieces and any other documents necessary to terminate any and
all security interests of Trident under the Trident Loan
Documents; and
(5) Any and all other agreements, documents or certificates
necessary or desirable to consummate the Transactions;
(B) The following documents executed by CSOR:
(1) Consent and General Release in substantially the form
attached hereto as Exhibit B;
(2) The CSOR Note; and
(3) Any and all other agreements, documents or certificates
necessary or desirable to consummate the transactions contemplated
hereby; and
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(C) The following documents executed by BP Acquisition:
(1) The certificate described in Section 6.2(c);
(2) An incumbency certificate signed by the Manager of BP
Acquisition dated at or about the Closing Date;
(3) A certificate of good standing from the Secretary of
State of the State of Delaware, dated at or about the Closing Date,
to the effect that BP Acquisition is in good standing under the
laws of said state;
(4)Certificate of Formation of BP Acquisition certified by
the Secretary of State of the State of Delaware at or about the
Closing Date, and the Operating Agreement of BP Acquisition
certified by the Managing Member of BP Acquisition at or about
the Closing Date;
(5)Resolutions of the Managing Member of BP Acquisition
dated at or about the Closing Date authorizing the Transactions,
certified by the Managing Member of BP Acquisition;
(6)Assignment of Partnership Interests executed
by BP Acquisition in substantially the form attached hereto as
Exhibit C;
(7)Power of Attorneys executed by BP Acquisition as required
by the partnership agreement of the partnership to which each
Interest relates, in substantially the form attached hereto as
Exhibit D;
(8) Adoption Agreement executed by BP Acquisition and the
general partner of each partnership as required by the
partnership agreement of the partnership to which each
Interest relates, in substantially the form attached hereto as
Exhibit E;
(9) All agreements, documents and certificates required by
the Operating Agreement of LS Gas, LLC to be executed by BP
Acquisition in order to transfer the LS Gas Interest; and
(10)Documents required by Trident that evidence that BP
Acquisition is assuming all of the obligations of the Company owed
to Trident ; and
(ii) The Company shall deliver or cause to be delivered to BP
Acquisition the following documents and/or shall take the following actions:
(A) Certificates or agreements evidencing all of the Interests
or, if applicable, an affidavit of lost certificate in lieu thereof;
(B) Assignment of Partnership Interests executed by the
Company in substantially the form attached hereto as Exhibit C;
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(C) All agreements, documents and certificates required by the
Operating Agreement of LS Gas, LLC to be executed by the Company or LS Gas, LLC
in order to transfer the LS Gas Interest;
(D) The certificate described in Section 6.1(c);
(E) An incumbency certificate signed by an executive officer
of the Company dated at or about the Closing Date;
(F) Articles of Incorporation and Bylaws of the Company
certified by the Secretary of the Company at or about the Closing Date; and
(G) Board resolutions of the Company dated at or about the
Closing Date authorizing the Transactions, certified by the Secretary of the
Company; and
(b) Each of the parties to this Agreement shall have otherwise
executed any and all documents and agreements, delivered any and all consents or
approvals and shall have taken all such other actions as are required under this
Agreement to effect the Transactions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BP ACQUISITION
BP Acquisition hereby makes the following representations and
warranties to the Company.
3.1 ORGANIZATION AND QUALIFICATION.
BP Acquisition is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, with full power and
authority to own and operate its businesses as presently conducted, except where
the failure to be or have any of the foregoing would not have a Material Adverse
Effect. BP Acquisition is duly qualified as a foreign entity to do business and
is in good standing in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary, except for such failures to be so qualified or in good
standing as would not, individually or in the aggregate, have a Material Adverse
Effect. BP Acquisition has no subsidiaries. True, correct and complete copies of
the Certificate of Formation and Operating Agreement of BP Acquisition, as
amended the date, are attached hereto as Schedule 3.1.
3.2 AUTHORIZATION; VALIDITY AND EFFECT OF AGREEMENT.
BP Acquisition has the requisite power and authority to execute, deliver
and perform its obligations under this Agreement and to consummate the
Transactions. The execution and delivery of this Agreement by BP Acquisition and
the performance by BP Acquisition of its obligations hereunder and the
consummation of the Transactions have been duly authorized by its Managers and
all other necessary company action on the part of BP Acquisition and no other
company proceedings on the part of BP Acquisition are necessary to authorize
this Agreement and the Transactions. This Agreement has been duly and validly
executed and delivered by BP Acquisition and, assuming that it has been duly
authorized, executed and delivered by the other parties hereto, constitutes a
legal, valid and binding obligation of BP Acquisition, enforceable against it in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
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3.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
Neither the execution and delivery of this Agreement by BP Acquisition nor
the performance by BP Acquisition of its obligations hereunder, nor the
consummation of the Transactions, will: (i) conflict with BP Acquisition's
Certificate of Formation or Operating Agreement; (ii) violate any statute, law,
ordinance, rule or regulation applicable to BP Acquisition or any of the
properties or assets of BP Acquisition; or (iii) violate, breach, be in conflict
with or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or permit the termination of any
provision of, or result in the termination of, the acceleration of the maturity
of, or the acceleration of the performance of any obligation of BP Acquisition
under, or result in the creation or imposition of any Liens upon any properties,
assets or business of BP Acquisition under, any material contract or any order,
judgment or decree to which BP Acquisition is a party or by which BP Acquisition
or any of its assets or properties is bound or encumbered except, in the case of
clauses (ii) and (iii), for such violations, breaches, conflicts, defaults or
other occurrences which, individually or in the aggregate, would not have a
Material Adverse Effect.
3.4 INVESTMENT INTENT.
The Interests being acquired in connection with the Transactions are being
acquired for BP Acquisition's own account for investment purposes only and not
with a view to, or with any present intention of, distributing or reselling any
of the Interests. BP Acquisition acknowledges and agrees that the Interests have
not been registered under the Securities Act or under any state securities laws,
and that the Interests may not be, directly or indirectly, sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of without
registration under the Securities Act and applicable state securities laws,
except pursuant to an available exemption from such registration. BP Acquisition
also acknowledges and agrees that neither the SEC nor any securities commission
or other Governmental Authority has (a) approved the transfer of the Interests
or passed upon or endorsed the merits of the transfer of the Interests, this
Agreement or the Transactions; or (b) confirmed the accuracy of, determined the
adequacy of, or reviewed this Agreement. BP Acquisition has such Knowledge,
sophistication and experience in financial, tax and business matters in general,
and investments in securities in particular, that it is capable of evaluating
the merits and risks of this investment in the Interests, and BP Acquisition has
made such investigations in connection herewith as it deemed necessary or
desirable so as to make an informed investment decision without relying upon the
Company for legal or tax advice related to this investment. Each of the Members
of BP Acquisition is an "accredited investor" within the meaning of Rule 501
promulgated under the Securities Act.
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3.5 BROKERS AND FINDERS FEES.
Neither BP Acquisition nor any of its officers, directors, employees or
managers has employed any broker or finder or incurred any liability for any
investment banking fees, brokerage fees, commissions or finders fees in
connection with the Transactions for which BP Acquisition has or could have any
liability.
3.6 ACQUIRING INTERESTS SUBJECT TO EXISTING LIENS HELD BY TRIDENT GROWTH FUND,
LP.
The Interests being acquired in connection with the Transactions are being
acquired subject to liens held by Trident. BP Acquisition shall execute any
documents necessary for Trident to perfect its security interest in the
Interests and all other assets of BP Acquisition and BP Acquisition shall take
no action that would detrimentally effect Trident security interests in the
Interests being acquired or any other assets of BP Acquisition.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and warranties to
BP Acquisition:
4.1 ORGANIZATION AND QUALIFICATION.
The Company is duly organized, validly existing and in good standing under
the laws of its jurisdiction of its organization, with the corporate power and
authority to own and operate its business as presently conducted, except where
the failure to be or have any of the foregoing would not have a Material Adverse
Effect. The Company is duly qualified as a foreign corporation or other entity
to do business and is in good standing in each jurisdiction where the character
of its properties owned or held under lease or the nature of its activities
makes such qualification necessary, except for such failures to be so qualified
or in good standing as would not have a Material Adverse Effect.
4.2 AUTHORIZATION; VALIDITY AND EFFECT OF AGREEMENT.
The Company has the requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
Transactions. The execution and delivery of this Agreement by the Company and
the performance by the Company of its obligations hereunder and the consummation
of the Transactions have been duly authorized by its Board of Directors and all
other necessary corporate action on the part of the Company and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement and the Transactions. This Agreement has been duly and validly
executed and delivered by the Company and, assuming that it has been duly
authorized, executed and delivered by the other parties hereto, constitutes a
legal, valid and binding obligation of the Company, in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
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4.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
Neither the execution and delivery of the Agreement by the Company nor the
performance by the Company of its obligations hereunder, nor the consummation of
the Transactions, will: (i) conflict with the Company's Articles of
Incorporation or Bylaws; (ii) violate any statute, law, ordinance, rule or
regulation, applicable to the Company or any of the properties or assets of the
Company; or (iii) violate, breach, be in conflict with or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or permit the termination of any provision of, or result in the
termination of, the acceleration of the maturity of, or the acceleration of the
performance of any obligation of the Company, or result in the creation or
imposition of any Lien upon any properties, assets or business of the Company
under, any material contract or any order, judgment or decree to which the
Company is a party or by which it or any of its assets or properties is bound or
encumbered except, in the case of clauses (ii) and (iii), for such violations,
breaches, conflicts, defaults or other occurrences which, individually or in the
aggregate, would not have a material adverse effect on its obligation to perform
its covenants under this Agreement.
4.4 TITLE TO THE INTERESTS.
Except for the security interest of Trident Growth Fund, LP in each of the
Interests and as set forth in Schedule 4.4, the Company has good and marketable
title to the Interests, and the Interests are owned of record and beneficially
by the Company, free and clear of any Liens. Except for this Agreement, there
are no outstanding options, warrants, agreements, conversion rights, preemptive
rights, or other rights to subscribe for, purchase or otherwise acquire any of
the Interests. There are no voting trusts or other agreements or understandings
to which the Company or any of its subsidiaries is a party with respect to the
voting of any of the Interests, and there is no indebtedness of the Company or
its subsidiaries issued and outstanding that has general voting rights with
respect to any of the Interests. Except for this Agreement, there are no
outstanding obligations of any Person to repurchase, redeem or otherwise acquire
any of the Interests.
4.5 BROKERS AND FINDERS.
Neither the Company nor any of its officers, directors, employees or
managers has employed any broker or finder or incurred any liability for any
investment banking fees, brokerage fees, commissions or finders' fees in
connection with the Transactions for which the Company has or could have any
liability.
ARTICLE V
CERTAIN COVENANTS
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5.1 ACCESS TO INFORMATION.
At all times prior to the Closing or the earlier termination of this
Agreement in accordance with the provisions of Article VIII, and in each case
subject to Section 5.2 below, each party hereto shall provide to the other party
(and the other party's authorized representatives) reasonable access during
normal business hours and upon reasonable prior notice to the premises,
properties, books, records, assets, liabilities, operations, contracts,
personnel, financial information and other data and information of or relating
to such party (including without limitation all written proprietary and trade
secret information and documents, and other written information and documents
relating to intellectual property rights and matters), and will cooperate with
the other party in conducting its due diligence investigation of such party,
provided that the party granted such access shall not interfere unreasonably
with the operation of the business conducted by the party granting access, and
provided that no such access need be granted to privileged information or any
agreements or documents subject to confidentiality agreements.
5.2 CONFIDENTIALITY.
(a) Confidentiality. Each party shall hold, and shall cause its respective
Affiliates and representatives to hold, all Confidential Information made
available to it in connection with the Transactions in strict confidence, shall
not use such information except for the sole purpose of evaluating the
Transactions and shall not disseminate or disclose any of such information other
than to its directors, officers, managers, employees, shareholders, interest
holders, Affiliates, agents and representatives, as applicable, who need to know
such information for the sole purpose of evaluating the Transactions (each of
whom shall be informed in writing by the disclosing party of the confidential
nature of such information and directed by such party in writing to treat such
information confidentially). If this Agreement is terminated pursuant to the
provisions of Article VIII, each party shall immediately return to the other
party all such information, all copies thereof and all information prepared by
the receiving party based upon the same. The above limitations on use,
dissemination and disclosure shall not apply to Confidential Information that
(i) is learned by the disclosing party from a third party entitled to disclose
it; (ii) becomes known publicly other than through the disclosing party or any
third party who received the same from the disclosing party, provided that the
disclosing party had no Knowledge that the disclosing party was subject to an
obligation of confidentiality; (iii) is required by law or court order to be
disclosed by the parties; or (iv) is disclosed with the express prior written
consent thereto of the other party. The parties shall undertake all necessary
steps to ensure that the secrecy and confidentiality of such information will be
maintained in accordance with the provisions of this subsection (a).
Notwithstanding anything contained herein to the contrary, in the event a party
is required by court order or subpoena to disclose information which is
otherwise deemed to be confidential or subject to the confidentiality
obligations hereunder, prior to such disclosure, the disclosing party shall: (i)
promptly notify the non-disclosing party and, if having received a court order
or subpoena, deliver a copy of the same to the non-disclosing party; (ii)
cooperate with the non-disclosing party, at the expense of the non-disclosing
party, in obtaining a protective or similar order with respect to such
information; and (iii) provide only that amount of information as the disclosing
party is advised by its counsel is necessary to strictly comply with such court
order or subpoena.
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5.3 BEST EFFORTS; CONSENTS.
Subject to the terms and conditions herein provided, each of the Company
and BP Acquisition agrees to use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable the
Transactions and to cooperate with the others in connection with the foregoing,
including using its reasonable efforts to (i) obtain all waivers, consents and
approvals from other parties to loan agreements, leases, mortgages and other
contracts necessary for the consummation of the Transactions, (ii) make all
filings with, and obtain all consents, approvals and authorizations that are
required to be obtained from, Governmental Authorities, (iii) lift or rescind
any injunction, restraining order, decree or other order adversely affecting the
ability of the parties hereto to consummate the Transactions, (iv) effect all
necessary registrations and filings and submissions of information requested by
Governmental Authorities, and (v) fulfill all conditions to this Agreement. Each
of the Company and BP Acquisition shall use all reasonable efforts to prevent
the entry, enactment or promulgation of any threatened or pending preliminary or
permanent injunction or other order, decree or ruling or statute, rule,
regulation or executive order that would adversely affect the ability of the
parties hereto to consummate the Transactions.
5.4 FURTHER ASSURANCES.
Subject to Section 5.3, each of the parties hereto agrees to use its
reasonable best efforts before and after the Closing Date to take or cause to be
taken all action, to do or cause to be done, and to assist and cooperate with
the other party hereto in doing, all things necessary, proper or advisable under
applicable laws to consummate and make effective, in the most expeditious manner
practicable, the Transactions, including, but not limited to (i) the
satisfaction of the conditions precedent to the obligations of any of the
parties hereto; (ii) to the extent consistent with the obligations of the
parties set forth in Section 5.3, the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the performance of the obligations hereunder; and (iii) the execution and
delivery of such instruments, and the taking of such other actions, as the other
party hereto may reasonably require in order to carry out the intent of this
Agreement.
5.5 PUBLIC ANNOUNCEMENTS.
The Company and BP Acquisition shall consult with each other before
issuing any press release or otherwise making any public statements with respect
to the Transactions or this Agreement, and shall not issue any other press
release or make any other public statement without prior consent of the other
parties, except as may be required by law or, with respect to the Company, by
obligations pursuant to rule or regulation of the Exchange Act, the Securities
Act, any rule or regulation promulgated thereunder or any rule or regulation of
the National Association of Securities Dealers.
5.6 NOTIFICATION OF CERTAIN MATTERS.
Each party hereto shall promptly notify the other party in writing of any
events, facts or occurrences which would result in any breach of any
representation or warranty or breach of any covenant by such party contained in
this Agreement.
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5.7 PROHIBITION ON TRADING IN SECURITIES.
BP Acquisition acknowledges that information concerning the matters that
are the subject matter of this Agreement may constitute material non-public
information under United States federal securities laws, and that United States
federal securities laws prohibit any Person who has received material non-public
information relating to the Company from purchasing or selling securities of the
Company, or from communicating such information to any Person under
circumstances in which it is reasonably foreseeable that such Person is likely
to purchase or sell securities of the Company. Accordingly, until such time as
any such non-public information has been adequately disseminated to the public,
BP Acquisition shall not purchase or sell any securities of the Company, or
communicate such information to any other Person.
5.8 SCHEDULES AND EXHIBITS.
Each of the parties hereto shall utilize its reasonable best efforts to
produce all Schedules and Exhibits required to be produced by it under this
Agreement prior to the execution hereof. In the event that any party has not
produced all Schedules and Exhibits required to be produced by it hereunder
prior to the execution of this Agreement, all such Schedules and Exhibits shall
be produced by such party within five (5) Business Days thereafter, but in no
event shall such Schedules and Exhibits be delivered less than three (3)
Business Days prior to the Closing. The Schedules and Exhibits produced
subsequent to the execution of this Agreement shall be given such force and
effect as though such Schedules and Exhibits were produced on the date of
execution of this Agreement.
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS
6.1 CONDITIONS TO OBLIGATIONS OF BP ACQUISITION.
The obligations of BP Acquisition to consummate the Transactions shall be
subject to the fulfillment, or written waiver by BP Acquisition, at or prior to
the Closing, of each of the following conditions:
(a) The representations and warranties of the Company set out in this
Agreement shall be true and correct in all material respects at and as of the
time of the Closing as though such representations and warranties were made at
and as of such time;
(b) The Company shall have performed and complied in all material respects
with all covenants, conditions, obligations and agreements required by this
Agreement to be performed or complied with by the Company on or prior to the
Closing Date;
(c) There shall be delivered to BP Acquisition an officer's certificate of
the Company to the effect that the conditions set forth in Section 6.1(a) and
(b) have been satisfied; and
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(d) The Company shall have delivered to BP Acquisition any certificates
evidencing the Interests or an affidavit of lost certificate in lieu thereof in
accordance with Section 2.2(a)(ii)(A).
6.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY.
The obligations of the Company to consummate the Transactions shall be
subject to the fulfillment, or written waiver by the Company, at or prior to the
Closing of each of the following conditions:
(a) The representations and warranties of BP Acquisition set out in this
Agreement shall be true and correct in all material respects at and as of the
time of the Closing as though such representations and warranties were made at
and as of such time;
(b) BP Acquisition shall have performed and complied in all material
respects with all covenants, conditions, obligations and agreements required by
this Agreement to be performed or complied with by BP Acquisition on or prior to
the Closing Date;
(c)There shall be delivered to the Company a certificate of the Manager of
BP Acquisition to the effect that the conditions set forth in Section 6.2(a) and
(b) hereof have been satisfied;
(d)BP Acquisition shall have delivered to the Company all documents
executed by Trident in accordance with Section 2.2(a)(i)(A);
(e)BP Acquisition shall have delivered to the Company all documents
executed by CSOR in accordance with Section 2.2(a)(i)(B); and
(f)BP Acquisition shall have delivered to the Company all documents
identified in Sections 2.2(a)(i)(C)-(J).
6.3 OTHER CONDITIONS TO OBLIGATIONS OF THE COMPANY AND BP ACQUISITION.
The obligations of the Company and BP Acquisition to consummate the
Transactions shall be subject to the fulfillment, or written waiver by each of
the Company and BP Acquisition, at or prior to the Closing, of each of the
following conditions:
(a) All director, shareholder, lender, lessor and other parties' consents
and approvals, as well as all filings with, and all necessary consents or
approvals of, all federal, state and local Governmental Authorities and
agencies, as are required under this Agreement, applicable law or any applicable
contract or agreement (other than as contemplated by this Agreement) to complete
the Transactions shall have been secured; and
(b) No statute, rule, regulation, executive order, decree, preliminary or
permanent injunction, or restraining order shall have been enacted, entered,
promulgated or enforced by any Governmental Authority that prohibits or
restricts the consummation of the Transactions.
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ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY BP ACQUISITION.
From and after the Closing Date, BP Acquisition shall indemnify and hold
harmless the Company and its respective officers and directors (each an
"Indemnified Party"), from and against any and all demands, claims, actions or
causes of action, judgments, assessments, losses, liabilities, damages or
penalties and reasonable attorneys' fees and related disbursements
(collectively, "Claims") suffered by such Indemnified Party resulting from or
arising out of (i) any inaccuracy in or breach of any of the representations or
warranties made by BP Acquisition herein, in any certificate, or in any other
document delivered herewith or otherwise required hereby at the time they were
made, and, except for representations and warranties that speak as of a specific
date or time (which need only be true and correct as of such date or time), on
and as of the Closing Date, (ii) any breach or nonfulfillment of any covenants
or agreements made by the BP Acquisition, and (iii) any misrepresentation made
by the BP Acquisition, in each case as made herein or in the Schedules or
Exhibits annexed hereto or in any closing certificate, schedule or any ancillary
certificates or other documents or instruments furnished by BP Acquisition
pursuant hereto or in connection with the Transactions.
7.2 INDEMNIFICATION PROCEDURES FOR THIRD-PARTY CLAIM.
(a) Upon obtaining Knowledge of any Claim by a third party which has given
rise to, or is expected to give rise to, a claim for indemnification hereunder,
the Company shall give written notice ("Notice of Claim") of such claim or
demand to BP Acquisition, specifying in reasonable detail such information as
the Indemnified Party may have with respect to such indemnification claim
(including copies of any summons, complaint or other pleading which may have
been served on it and any written claim, demand, invoice, billing or other
document evidencing or asserting the same). Subject to the limitations set forth
in Section 7.2(b) hereof, no failure or delay by the Company in the performance
of the foregoing shall reduce or otherwise affect the obligation of BP
Acquisition to indemnify and hold the Indemnified Party harmless, except to the
extent that such failure or delay shall have actually adversely affected BP
Acquisition's ability to defend against, settle or satisfy any Claims for which
the Indemnified Party entitled to indemnification hereunder.
(b)If the claim or demand set forth in the Notice of Claim given by the
Company pursuant to Section 7.2(a) hereof is a claim or demand asserted by a
third party, BP Acquisition shall have fifteen (15) days after the date on which
Notice of Claim is given to notify the Company in writing of its election to
defend such third party claim or demand on behalf of the Indemnified Party. If
BP Acquisition elects to defend such third party claim or demand, the Company
shall make available to BP Acquisition and its agents and representatives all
records and other materials that are reasonably required in the defense of such
third party claim or demand and shall otherwise cooperate with, and assist BP
Acquisition in the defense of, such third party claim or demand, and so long as
BP Acquisition is defending such third party claim in good faith, the
Indemnified Party shall not pay, settle or compromise such third party claim or
demand. If BP Acquisition elects to defend such third party claim or demand, the
Indemnified Party shall have the right to participate in the defense of such
third party claim or demand, at such Indemnified Party's own expense. In the
event, however, that such Indemnified Party reasonably determines that
representation by counsel to BP Acquisition of both BP Acquisition and such
Indemnified Party could reasonably be expected to present counsel with a
conflict of interest, then the Indemnified Party may employ separate counsel to
represent or defend it in any such action or proceeding and BP Acquisition will
pay the fees and expenses of such counsel. If BP Acquisition does not elect to
defend such third party claim or demand or does not defend such third party
claim or demand in good faith, the Indemnified Party shall have the right, in
addition to any other right or remedy it may have hereunder, at BP Acquisition's
expense, to defend such third party claim or demand; provided, however, that (i)
such Indemnified Party shall not have any obligation to participate in the
defense of, or defend, any such third party claim or demand; (ii) such
Indemnified Party's defense of or its participation in the defense of any such
third party claim or demand shall not in any way diminish or lessen the
obligations of BP Acquisition under the agreements of indemnification set forth
in this Article VII; and (iii) such Indemnified Party may not settle any claim
without the consent of BP Acquisition, which consent shall not be unreasonably
withheld or delayed.
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(c)BP Acquisition and the Company and the other Indemnified Party, if any,
shall cooperate fully in all aspects of any investigation, defense, pre-trial
activities, trial, compromise, settlement or discharge of any claim in respect
of which indemnity is sought pursuant to this Article VII, including, but not
limited to, by providing the other party with reasonable access to employees and
officers (including as witnesses) and other information;
(d)Except for third party claims being defended in good faith, BP
Acquisition shall satisfy its obligations under this Article VII in respect of a
valid claim for indemnification hereunder which is not contested by BP
Acquisition in good faith in cash within thirty (30) days after the date on
which Notice of Claim is given.
7.3 INDEMNIFICATION PROCEDURES FOR NON-THIRD PARTY CLAIMS.
In the event any Indemnified Party should have an indemnification claim
against BP Acquisition under this Agreement that does not involve a claim by a
third party, the Indemnified Party shall promptly deliver notice of such claim
to BP Acquisition in writing and in reasonable detail. The failure by any
Indemnified Party to so notify BP Acquisition shall not relieve BP Acquisition
from any liability that it may have to such Indemnified Party, except to the
extent that BP Acquisition has been actually prejudiced by such failure. If BP
Acquisition does not notify the Indemnified Party within fifteen (15) Business
Days following its receipt of such notice that BP Acquisition disputes such
claim, such claim specified by BP Acquisition in such notice shall be
conclusively deemed a liability of BP Acquisition under this Article VII and BP
Acquisition shall pay the amount of such liability to the Indemnified Party on
demand, or in the case of any notice in which the amount of the claim is
estimated, on such later date when the amount of such claim is finally
determined. If BP Acquisition disputes its liability with respect to such claim
in a timely manner, BP Acquisition and the Indemnified Party shall proceed in
good faith to negotiate a resolution of such dispute and, if not resolved
through negotiations, such dispute shall be submitted to arbitration pursuant to
Section 9.12.
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7.4 LIMITATIONS ON INDEMNIFICATION.
No claim for indemnification under this Article VII shall be asserted by,
and no liability for such indemnify shall be enforced against, BP Acquisition to
the extent the Indemnified Party has theretofore received indemnification or
otherwise been compensated for such Claim. In the event that an Indemnified
Party shall later collect any such amounts recovered under insurance policies
with respect to any Claim for which it has previously received payments under
this Article VII from BP Acquisition, such Indemnified Party shall promptly
repay to BP Acquisition such amount recovered.
7.5 EXCLUSIVE REMEDY.
The indemnification provisions of this Article VII (i) shall be the
exclusive remedy following the Closing with respect to breaches thereof, (ii)
shall apply without regard to, and shall not be subject to, any limitation by
reason of set-off, limitation or otherwise and (iii) are intended to be
comprehensive and not to be limited by any requirements of law concerning
prominence of language or waiver of any legal right under any law (including,
without limitation, rights under any workers compensation statute or similar
statute conferring immunity from suit). The obligations of the parties set forth
in this Article VII shall be conditioned upon the Closing having occurred.
8.1 TERMINATION.
This Agreement may be terminated at any time prior to the Closing:
(a)by mutual consent of the Company and BP Acquisition;
(b)by the Company or BP Acquisition if any Governmental Authority shall
have issued an injunction, order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting any material portion of the
Transactions and such injunction, order, decree, ruling or other action shall
have become final and nonappealable;
(c)by the Company or BP Acquisition upon written notice to the other party
if any of the conditions to the Closing set forth in Section 6.3 shall have
become incapable of fulfillment by the Closing Date and shall not have been
waived in writing by the Company or BP Acquisition, respectively.
(d)by the Company upon written notice to BP Acquisition if any of the
conditions to the Closing set forth in Section 6.2 shall have become incapable
of fulfillment by the Closing Date and shall not have been waived in writing by
the Company; or
(e)by BP Acquisition upon written notice to the Company if any of the
conditions to the Closing set forth in Section 6.1 shall have become incapable
of fulfillment by the Closing Date and shall not have been waived in writing by
BP Acquisition.
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8.2 PROCEDURE AND EFFECT OF TERMINATION.
In the event of termination of this Agreement pursuant to Section 8.1
hereof, written notice thereof shall forthwith be given by the terminating party
to the other party, and, except as set forth below, this Agreement shall
terminate and be void and have no effect and the Transactions shall be abandoned
without any further action by the parties hereto; provided that, if such
termination shall result from the failure of a party to perform a covenant,
obligation or agreement in this Agreement or from the breach by the Company or
BP Acquisition of any representation or warranty contained herein, such party
shall be fully liable for any and all damages incurred or suffered by the other
party as a result of such failure or breach. If this Agreement is terminated as
provided herein:
(a)each party hereto shall redeliver, and shall cause its agents
(including, without limitation, attorneys and accountants) to redeliver, all
documents, work papers and other material of each party hereto relating to the
Transactions, whether obtained before or after the execution hereof; and
(b)each party agrees that all Confidential Information received by the
Company or BP Acquisition with respect to the other party, this Agreement or the
Transactions shall be kept confidential notwithstanding the termination of this
Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 ENTIRE AGREEMENT.
This Agreement and the Schedules and Exhibits hereto contain the entire
agreement between the parties and supercede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
9.2 AMENDMENT AND MODIFICATIONS.
This Agreement may not be amended, modified or supplemented
except by an instrument or instruments in writing signed by the party against
whom enforcement of any such amendment, modification or supplement is sought.
9.3 EXTENSIONS AND WAIVERS.
At any time prior to the Closing, the parties hereto entitled
to the benefits of a term or provision may (a) extend the time for the
performance of any of the obligations or other acts of the parties hereto, (b)
waive any inaccuracies in the representations and warranties contained herein or
in any document, certificate or writing delivered pursuant hereto, or (c) waive
compliance with any obligation, covenant, agreement or condition contained
herein. Any agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument or instruments in writing
signed by the party against whom enforcement of any such extension or waiver is
sought. No failure or delay on the part of any party hereto in the exercise of
any right hereunder shall impair such right or be construed to be a waiver of,
or acquiescence in, any breach of any representation, warranty, covenant or
agreement.
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9.4 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, provided, however,
that no party hereto may assign its rights or delegate its obligations under
this Agreement without the express prior written consent of the other party
hereto. Except as provided in Article VII, nothing in this Agreement is intended
to confer upon any person not a party hereto (and their successors and assigns)
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
9.5 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The representations and warranties contained herein shall survive the
Closing and shall thereupon terminate twelve (12) months from the Closing,
except that the representations contained in Sections 3.1, 3.2, 4.1 and 4.2
shall survive indefinitely. All covenants, conditions, obligations and
agreements contained herein which by their terms contemplate actions following
the Closing shall survive the Closing and remain in full force and effect in
accordance with their terms. All other covenants, conditions, obligations and
agreements contained herein shall not survive the Closing and shall thereupon
terminate.
9.6 HEADINGS; DEFINITIONS.
The Section and Article headings contained in this Agreement are inserted
for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections or Articles
contained herein mean Sections or Articles of this Agreement unless otherwise
stated. All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
9.7 SEVERABILITY.
If any provision of this Agreement or the application thereof to any
Person or circumstance is held to be invalid or unenforceable to any extent, the
remainder of this Agreement shall remain in full force and effect and shall be
reformed to render the Agreement valid and enforceable while reflecting to the
greatest extent permissible the intent of the parties.
9.8 SPECIFIC PERFORMANCE.
The parties hereto agree that in the event that BP Acquisition fails to
consummate the Transactions in accordance with the terms of this Agreement,
irreparable damage would occur, no adequate remedy at law would exist and
damages would be difficult to determine, and that the Company shall be entitled
to specific performance in such event, without the necessity of proving the
inadequacy of money damages as a remedy, in addition to any other remedy at law
or in equity.
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9.9 EXPENSES.
Whether or not the Transactions are consummated, and except as otherwise
expressly set forth herein, all legal and other costs and expenses incurred in
connection with the Transactions shall be paid by the party incurring such
expenses.
9.10 NOTICES.
All notices hereunder shall be sufficiently given for all purposes
hereunder if in writing and delivered personally, sent by documented overnight
delivery service or, to the extent receipt is confirmed, telecopy, telefax or
other electronic transmission service to the appropriate address or number as
set forth below.
If to the Company: with a copy to:
- ----------------------------------- ----------------------------------
BPK Resources, Inc. Duane Morris LLP
111 Presidential Boulevard 51 Haddonfield Road
Suite 165 Cherry Hill, NJ 08002
Bala Cynwyd, PA 19004 Attention: Vincent A. Vietti, Esq.
Attention: Chief Executive Officer
If to BP Acquisition:
- ---------------------
BP Preferred Acquisition, LLC
- -----------------------------------
- -----------------------------------
Attention:
-------------------------
9.11 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without regard to the laws that might
otherwise govern under applicable principles of conflicts of laws thereof,
except to the extent that the Nevada General Corporation Law shall apply to the
internal corporate governance of the Company or the Delaware Limited Liability
Company Act apply to the internal corporate governance of BP Acquisition.
9.12 ARBITRATION.
If a dispute arises as to the interpretation of this Agreement, it shall
be decided in an arbitration proceeding conforming to the Rules of the American
Arbitration Association applicable to commercial arbitration then in effect at
the time of the dispute. The arbitration shall take place in Philadelphia,
Pennsylvania. The decision of the Arbitrators shall be conclusively binding upon
the parties and final, and such decision shall be enforceable as a judgment in
any court of competent jurisdiction. The parties shall share equally the costs
of the arbitration.
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9.13 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same agreement.
9.14 CERTAIN DEFINITIONS.
As used herein:
(a) "Affiliate" shall have the meanings ascribed to such term in Rule
12b-2 of the Exchange Act;
(b) "Business Day" shall mean any day other than a Saturday, Sunday or a
day on which federally chartered financial institutions are not open for
business in the City of Philadelphia, Pennsylvania;
(c) "Confidential Information" shall mean the existence and contents of
this Agreement and the Schedules and Exhibits hereto, and all proprietary
technical, economic, environmental, operational, financial and/or business
information or material of one party which, prior to or following the Closing
Date, has been disclosed by the Company, on the one hand, or BP Acquisition, on
the other hand, in written, oral (including by recording), electronic, or visual
form to, or otherwise has come into the possession of, the other;
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended;
(e)"Governmental Authority" shall mean any nation or government, any
state, municipality or other political subdivision thereof and any entity, body,
agency, commission or court, whether domestic, foreign or multinational,
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any executive official thereof;
(f) "Knowledge" shall mean (i) with respect to an individual, knowledge of
a particular fact or other matter, if such individual is aware of such fact or
other matter, and (ii) with respect to a Person that is not an individual,
knowledge of a particular fact or other matter if any individual who is serving,
or who has at any time served, as a director, officer, partner, executor, or
trustee of such Person (or in any similar capacity) has, or at any time had,
knowledge of such fact or other matter;
(g) "Liabilities" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, including, without limitation, those arising under
any applicable law, rule or regulation and those arising under any contract,
agreement, arrangement, commitment or undertaking;
(h) "Liens" shall mean liens, pledges, charges, claims, security
interests, purchase agreements, options, title defects, outstanding capital
calls, restrictions on transfer or other encumbrances, or any agreements (other
than this Agreement) to do any of the foregoing, of any nature whatsoever,
whether consensual, statutory or otherwise;
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(i) "Material Adverse Effect" shall mean any adverse effect on the
business, condition (financial or otherwise) or results of operation of: (i) in
the case of BP Acquisition, BP Acquisition and its subsidiaries, if any, which
is material to BP Acquisition and its subsidiaries, if any, taken as a whole, or
(ii) in the case of the Company, the Company and its subsidiaries, if any, that
is material to the Company and its subsidiaries, if any, taken as a whole;
(j) "Person" shall mean any individual, corporation, partnership,
association, trust or other entity or organization, including a governmental or
political subdivision or any agency or institution thereof;
(k) "SEC" shall mean the Securities and Exchange Commission; and
(l) "Securities Act" shall mean the Securities Act of 1933, as amended.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BPK RESOURCES, INC.
By: /s/ Christopher Giordano
--------------------------------------
CHRISTOPHER GIORDANO, CEO
BP PREFERRED ACQUISITION, LLC
By: FEQ Gas, LLC, Manager
By: FEQ INVESTMENTS, INC. Manager
By: /s/ Ernest A. Bartlett
--------------------------------------
Ernest A. Bartlett, President
21
Pursuant to Item 601(b)(2) of Regulation S-K, the following exhibits and
schedules have been omitted:
Schedules
3.1 Certificate of Formation and Operating Agreement of BP Acquisition
4.4 Liens
Exhibits
A - Form of Consent and General Release of Trident
B - Form of Consent and General Release of CSOR
C - Form of Assignment of Partnership Interests
D - Form of Power of Attorney
E - Form of Adoption Agreement
The Company agrees to furnish supplementally a copy of all omitted
exhibits and schedules to the Securities and Exchange Commission upon request.