EXHIBIT 99.2
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT, dated as of March 15, 2004 (this
"Agreement"), is by Xxxxxxx Distressed Investment Master Fund, Ltd. (the
"Seller") and Mission Resources Corporation, a Delaware corporation (the
"Purchaser"). (Each of the Seller and the Purchaser is a "Party", and together
are the "Parties").
WHEREAS, pursuant to that certain Indenture, dated as of May 29, 2001
(the "Indenture"), among the Purchaser, the subsidiary guarantors identified
therein and The Bank of New York, as trustee (the "Trustee"), the Purchaser
issued $225,000,000 aggregate principal amount of its 10-7/8% Senior
Subordinated Notes due 2007 Series C (the "Senior Subordinated Notes");
WHEREAS, the Seller is the beneficial owner of $15,000,000 aggregate
principal amount of the Senior Subordinated Notes (the "Notes"); and
WHEREAS, the Purchaser desires to repurchase from the Seller, and the
Seller desires to sell to the Purchaser, all of the Notes held by Seller in
consideration for the issuance of shares of the Purchaser's common stock, $.01
par value (the "Common Stock"), upon the terms and subject to the conditions
contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Seller and the
Purchaser agree as follows:
ARTICLE 1
DEFINITIONS, USAGE, ETC.
SECTION 1.1 Defined Terms. As used in this Agreement, the terms below
have the following meanings:
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition "control" (including, with its correlative
meanings, "controlled by" and "under common control with") means possession,
directly or indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership or other
ownership interest, by contract or otherwise).
"Applicable Law" means, with respect to any Person, any Law applicable
to such Person or its business, properties or assets.
"Beneficially Own" has the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" has the meaning assigned to such term in the preamble.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excess Voting Securities" has the meaning assigned to such term in
Section 7.2.
"Governmental Authority" means any federal, state or local government,
or any political subdivision of any of the foregoing, or any court, agency or
other entity, body, organization or group, exercising any executive,
legislative, judicial, quasi judicial, regulatory or administrative function of
government.
"Indenture" has the meaning assigned to such terns in the preamble.
"Law" means all applicable state and federal laws, statutes, rules and
regulations and ordinances including all applicable decisions of courts having
the effect of law in any such jurisdiction.
"Letter Agreement" means that certain letter agreement between the
Purchaser and the Seller dated as of March 12, 2004.
"Lien" means any mortgage, deed of trust, lien, pledge, charge, claim,
security interest, restrictive covenant or easement or encumbrance of any kind,
whether or not filed, recorded or otherwise perfected under Applicable Law, as
well as the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement.
"Material Adverse Effect" has the meaning assigned to such term in
Section 5.1.
"1934 Act Reports" has the meaning assigned to such term in Section
5.8.
"Notes" means the $15,000,000 aggregate principal amount of the Senior
Subordinated Notes held by the Seller to be sold to the Purchaser pursuant to
the terms of this Agreement.
"Party" or "Parties" has the meaning assigned to such term in the
preamble.
"Person" means any corporation, limited liability company, joint
venture, partnership, individual, limited partnership, trust or other business
entity.
"Purchaser" has the meaning assigned to such term in the preamble.
"Representative" means any officer, director, employee, partner,
trustee, attorney, accountant, advisor, agent or other representative of any
Person.
"Securities Act" has the meaning assigned to such term in Section 5.12.
"Seller" has the meaning assigned to such term in the preamble.
"Senior Subordinated Notes" has the meaning assigned to such term in
the preamble.
"Shares" has the meaning assigned to such term in Section 2.1.
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"Subsidiary" or "subsidiary" means, with respect to any Person, any
corporation, limited liability company, joint venture, limited partnership or
partnership of which such Person (a) beneficially owns, either directly or
indirectly, more than 50% of (i) the total combined voting power of all classes
of voting securities of such entity, (ii) the total combined equity interests or
(iii) the capital or profit interests in the case of a partnership; or (b)
otherwise has the power to vote or to direct the voting of sufficient securities
to elect a majority of the board of directors or similar governing body.
"Transfer Tax" means any federal, state, county, local, foreign and
other sales, use, transfer, conveyance, gross receipts, documentary transfer,
recording or other similar tax, fee or charge imposed upon the sale, transfer or
assignment of property or any interest therein or the recording thereof, and any
penalty, addition to tax or interest with respect thereto, but such term shall
not include any tax on, based upon or measured by, the net income, gains or
profits from such sale, transfer or assignment of the property or any interest
therein.
"Trustee" has the meaning assigned to such tern in the preamble.
"Voting Securities" has the meaning assigned to such tern in Section
7.1.
SECTION 1.2 Usage of Terms. Except where the context otherwise
requires, words importing the singular number shall include the plural number
and vice-versa.
SECTION 1.3 References to Articles and Sections. All references in this
Agreement to Articles and Sections (and other subdivisions), Exhibits and
Schedules refer to the corresponding Articles, Sections (and other
subdivisions), Exhibits and Schedules of to this Agreement, unless the context
expressly, or by necessary implication, otherwise requires.
ARTICLE 2
PURCHASE AND SALE OF THE NOTES AND CONSIDERATION
SECTION 2.1 Sale and Purchase of the Notes. On the terms and subject to
the conditions contained in this Agreement, (a) the Seller is selling,
conveying, transferring and assigning to the Purchaser, and the Purchaser is
acquiring from the Seller, the Notes and (b) the Purchaser is issuing to the
Seller as consideration for the sale, conveyance, transfer and assignment of the
Notes an aggregate amount of 6,000,000 shares of Common Stock (the "Shares"). At
the closing, the Seller shall cause the Notes to be transferred electronically
to The Depository Trust Company to be delivered to the Purchaser for
cancellation, and the Purchaser shall deliver the Shares electronically to The
Depository Company for the account of the Seller's behalf via the Deposit and
Withdrawal at Custodian system registered in the amounts and in such names as
the Seller shall have previously designated. The payment of interest on the
Notes accrued through the date of this Agreement will be made to the Seller on
the earlier to occur of April 1, 2004, that date being the next regularly
scheduled interest payment date for the Senior Subordinated Notes, or the date
on which the Purchaser completes the refinancing of its senior credit facility
substantially in the form set forth in Schedule 5.9 attached hereto.
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SECTION 2.2 Taxes. The Purchaser shall be responsible for the payment
when due of any Transfer Taxes imposed by reason of the transfer of the Notes or
the issuance of the Shares pursuant to this Agreement and any deficiency,
interest or penalty with respect to such Transfer Taxes unless such Transfer
Taxes are specifically levied on the Seller (in which case, the Purchaser shall
promptly reimburse the Seller therefor). The Purchaser shall file all necessary
tax returns and other documentation with respect to any Transfer Taxes, and, if
required by Applicable Law, the Seller will, and will cause its respective
Affiliates to, join in the execution of any such tax returns and other
documentation and will cooperate with the Purchaser to take such commercially
reasonable actions as will minimize or reduce the amount of such Transfer Taxes.
ARTICLE 3
CLOSING
The closing of the transactions contemplated by this Agreement is
taking place at 10:00 a.m. local time on March 15, 2004, or as soon as
practicable thereafter, at the offices of Xxxxxx & Xxxxxx, L.L.P., 000
Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as follows:
SECTION 4.1 Power and Authority; Authorization; Binding Effect. The
Seller has all necessary power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to perform its
obligations hereunder in accordance with the terms of this Agreement. This
Agreement has been duly authorized, executed and delivered by the Seller and
constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 4.2 Ownership of the Notes. The Seller is the beneficial owner
of the Notes in the principal amount of $15,000,000, and, upon sale and delivery
of the Notes to the Purchaser and upon payment by the Purchaser as provided
herein, the Seller will convey to the Purchaser good and marketable title to the
Notes, free and clear of all Liens other than Liens, created by the Purchaser,
if any.
SECTION 4.3 Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any Governmental
Authority or other Person is required to be made or obtained by the Seller in
connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, except for consents,
approvals, filings and similar requirements, the failure of which to be obtained
or made
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would not reasonably be expected to, individually or in the aggregate, prevent
the Seller from performing under this Agreement in all material respects.
SECTION 4.4 Compliance with Applicable Law; No Conflicts. The
execution, delivery and performance by the Seller of this Agreement, the sale of
the Notes and the consummation of the other transactions contemplated hereby (a)
will not violate any Applicable Law, or any order or decree of any court or
governmental instrumentality applicable to the Seller or any of its property;
and (b) will not conflict with or result in the breach or termination of,
constitute a default under or accelerate any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which the Seller is a party or by which the Seller or any of its property is
bound.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
SECTION 5.1 Due Organization. The Purchaser has been duly incorporated
and is a validly existing corporation in good standing under the laws of the
State of Delaware. Each of the Purchaser's Subsidiaries has been duly organized
and is a validly existing corporation, limited liability company or partnership
in good standing under the laws of its respective jurisdiction of organization.
The Purchaser and each of its Subsidiaries has full power and authority
(corporate and other) to own its properties and conduct is business. The issued
shares of capital stock of each of the Purchaser's Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and, except as
otherwise set forth in the 1934 Act Reports, are owned beneficially by the
Purchaser free and clear of any Liens. The Purchaser and each of its
Subsidiaries is duly qualified to do business as a foreign corporation or other
legal entity in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except in any case where the failure to be so qualified would not have material
adverse effect on the condition (financial or other), business, properties,
results of operations or prospects of the Purchaser and its Subsidiaries taken
as a whole (a "Material Adverse Effect").
SECTION 5.2 Power and Authority; Authorization; Binding Effect. The
Purchaser has all necessary corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby and to
perform its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Purchaser and constitutes a legal, valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
SECTION 5.3 Valid Issuance. The Shares have been duly authorized for
issuance by the Purchaser and, when issued and delivered in return for delivery
of the Notes in accordance with this Agreement, will be validly issued, fully
paid and nonassessable shares of Common Stock
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and the Seller will hold all of the legal and beneficial title to the Shares,
free and clear of all Liens, other than Liens created by the Seller, if any. No
holder of outstanding shares of capital stock of the Purchaser is entitled to
any preemptive or other rights to subscribe for any shares of the Common Stock,
and no holder of securities of the Purchaser has any right which has not been
fully exercised or waived to require the Purchaser to register the offer or sale
of any securities owned by such holder under the Securities Act under, or as a
result of the filing of, the registration statement to be filed by the Purchaser
pursuant to the terms of the Registration Rights Agreement.
SECTION 5.4 Securities. The capital stock of the Purchaser conforms to
the description thereof contained in the 1934 Act Reports. Except as disclosed
in the 1934 Act Reports, there are no outstanding (i) securities or obligations
of the Purchaser or any of its Subsidiaries convertible into or exchangeable for
any capital stock of the Purchaser or any such Subsidiary, (ii) warrants, rights
or options to subscribe for or purchase from the Purchaser or any such
Subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations of the Purchaser or any such
Subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or options.
SECTION 5.5 Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any Governmental
Authority or other Person is required to be made or obtained by the Purchaser in
connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, except for consents,
approvals, filings and similar requirements, the failure of which to be obtained
or made would not reasonably be expected to, individually or in the aggregate,
prevent the Purchaser from performing under this Agreement in all material
respects.
SECTION 5.6 Compliance with Applicable Law: No Conflicts. The
execution, delivery and performance by the Purchaser of this Agreement and the
consummation of the transactions contemplated hereby (a) will not violate any
Applicable Law, or any order or decree of any court or governmental
instrumentality applicable to Purchaser, any of Purchaser's Subsidiaries or any
of their property; (b) will not conflict with or result in the breach or
termination of, constitute a default under or accelerate any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which Purchaser or any of its Subsidiaries is a party or by which
Purchaser, any of its Subsidiaries or any of their property is bound, and (c)
will not result in a breach or violation of the charter or by-laws, or other
formation documents, of the Purchaser or its Subsidiaries.
SECTION 5.7 Litigation. There are no pending actions, suits or
proceedings against or involving the Purchaser or any of its property, or
involving any of its Subsidiaries or any of their respective properties, that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or that would materially and adversely affect the
ability of the Purchaser to perform its obligations under this Agreement, or
that are otherwise material in the context of the sale of the Shares; and, to
the Purchaser's knowledge, no such actions, suits or proceedings are threatened
or contemplated.
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SECTION 5.8 Accuracy of 1934 Act Reports. Since January 1, 2002, the
Purchaser has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Commission pursuant to the
reporting requirements of the Exchange Act, and the rules and regulations
promulgated thereunder (all of the foregoing filed prior to or on the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein being hereinafter
referred to as the "1934 Act Reports"). As of the date of filing of such 1934
Act Reports, each such 1934 Act Report, as it may have been subsequently amended
by filings made by the Purchaser with the Commission prior to the date hereof,
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission promulgated thereunder applicable to
such 1934 Act Reports. None of the 1934 Act Reports, as of the date filed and as
they may have been subsequently amended by filings made by the Purchaser with
the Commission prior to the date hereof, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. As of their respective
dates, the financial statements of the Purchaser included in the 1934 Act
Reports complied as to form in all material respects with applicable accounting
requirements and published rules and regulations of the Commission with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied in the United
States, during the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements), corresponds to the books and records of the Purchaser
and fairly present in all material respects the consolidated financial position
of the Purchaser and its Subsidiaries as of the dates thereof and the
consolidated results of its operations and cash flows for the periods then
ended. The written information provided by or on behalf of the Purchaser to the
Seller that is not included in the 1934 Act Reports, other than any projections
or forward looking information included therein, does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they are or were made, not misleading. The Purchaser satisfies the
requirements for use of Form S-3 for registration of the resale of its common
stock as contemplated by the Registration Rights Agreement, as such term is
defined in Section 6.1(e), and does not have any knowledge or reason to believe
that it does not satisfy such requirements or any knowledge of any fact which
would reasonably result in its not satisfying such requirements. The Purchaser
is not required to file and will not be required to file any agreement, note,
lease, mortgage, deed or other instrument entered into prior to the date hereof
and to which the Purchaser is a party or by which the Purchaser is bound which
has not been previously filed as an exhibit to its reports filed with the
Commission under the Exchange Act, except for the filing of this Agreement and
the Registration Rights Agreement to be filed by the Purchaser upon consummation
of the transactions contemplated herein.
SECTION 5.9 No Change. Except as disclosed in the 1934 Act Reports and
Schedule 5.9 attached hereto, since the date of the latest audited financial
statements included in the 1934 Act Reports, there has been no material adverse
change in the condition (financial or other), business, properties or results of
operations of the Purchaser and its Subsidiaries taken as a whole.
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SECTION 5.10 Investment Company. The Purchaser is not and, after giving
effect to the sale of the Shares, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
SECTION 5.11 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the origination, negotiation or execution of this Agreement or the other
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Purchaser.
SECTION 5.12 Holding Period. Pursuant to the provisions of Section
3(a)(9) of the Securities Act of 1933, as amended (the "Securities Act"), the
Purchaser agrees that the Seller is permitted to tack its holding periods
regarding the Notes to its holding periods regarding the Shares for purposes of
compliance with Rule 144 promulgated under the Securities Act.
ARTICLE 6
CLOSING DELIVERIES AND CONDITIONS
SECTION 6.1 Deliveries. The following actions shall be taken in
connection with and as a condition to the consummation of the transactions
contemplated hereby, all of which shall be deemed to have been taken
simultaneously:
(a) the Purchaser shall issue the Shares to the Seller in the
amount set forth herein;
(b) the Seller shall deliver the Notes and transfer title to
the Notes to the Purchaser as payment in full for the Shares;
(c) the Purchaser shall deliver to the Seller a Certificate of
the Secretary or Assistant Secretary of the Purchaser, together with
true and correct copies of the Certificate of Incorporation and By-Laws
of the Purchaser, and all amendments thereto, true and correct copies
of the resolutions of the Board of Directors of the Purchaser
authorizing or ratifying the execution, delivery and performance of
this Agreement, the Registration Rights Agreement, and the names of the
officer or officers of the Purchaser authorized to sign this Agreement
and the Registration Rights Agreement, together with a sample of the
true signature of each such officer;
(d) the Purchaser shall deliver to the Seller an opinion of
counsel to the Purchaser with respect to the transactions contemplated
hereby with respect to the matters described on Exhibit A hereto;
(e) the Purchaser and the Seller shall execute the
Registration Rights Agreement in the form attached hereto as Exhibit B
hereto (the "Registration Rights Agreement");
(f) the Shares shall have been approved for listing on the
Nasdaq National Market, subject to notice of issuance; and
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(g) the Purchaser shall have delivered to the Seller a copy of
the fully executed and effective Rights Amendment.
SECTION 6.2 Additional Closing Conditions. The closing of the
transactions contemplated by this Agreement is subject to the following
additional conditions.
(a) The Seller's obligations are conditioned upon the
representations and warranties of the Purchaser contained in Article 5
hereof being true, correct and complete in all material respects as of
the date hereof, and the Purchaser shall have performed, satisfied and
complied in all material respects with the covenants and conditions
required hereby to be performed, satisfied or complied with by it at or
before the closing.
(b) The Purchaser's obligations are conditioned upon the
representations and warranties of the Seller contained in Article 4
hereof being true, correct and complete in all material respects as of
the date hereof, and the Seller shall have performed, satisfied and
complied in all material respects with the covenants and conditions
required hereby to be performed, satisfied or complied with by it at or
before the closing.
ARTICLE 7
FURTHER AGREEMENTS
In order to induce the Purchaser to issue and transfer the Shares to
the Seller, the Seller agrees that:
SECTION 7.1 Limitation on Dispositions. For so long as the Seller
Beneficially Owns 5% or more of the outstanding securities of the Purchaser
entitled to vote (including securities held by the Seller convertible into or
exercisable, exchangeable or redeemable for such securities, collectively
"Voting Securities"), the Seller will not, directly or indirectly (unless in any
such cases specifically invited in writing to do so by the Purchaser), do either
of the following (provided that this Section 7.1 shall terminate as soon as the
Seller Beneficially Owns less than 5% of the Voting Securities):
(a) sell, or contract to sell or grant, any option or right to
purchase any Common Stock or make any short sale of, or establish a
"put equivalent position" (as such term is defined in Rule 16a-1 (h)
under the Exchange Act) with respect to, the Common Stock, at a time
when Seller has no equivalent offsetting long position in Common Stock;
or
(b) sell or contract to sell more than 2% of the outstanding
Voting Securities to any single person or group of related persons;
provided, however, that this subsection shall not apply to any
transaction effected in good faith on the Nasdaq Stock Market.
SECTION 7.2 Voting. In the event that any action is submitted to the
holders of Voting Securities for their approval, whether at a meeting or by
written consent, at a time when the Seller has the right to vote or direct the
vote with respect to more than 9.9% of the Voting Securities entitled to vote on
such action, the Seller will, unless otherwise approved in writing in advance by
the Purchaser, cause to be voted all Voting Securities as to which the Seller
has the right to vote or direct the vote (but not more than the number of Voting
Securities by which such
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ownership exceeds 9.9% of the outstanding Voting Securities entitled to be voted
on such matter) (the "Excess Voting Securities") in the same manner (i.e., in
favor of, against and abstentions with respect to) proportionately to all other
Voting Securities that are entitled to vote with respect to such matter. The
Seller hereby appoints the Chief Executive Officer and the Chief Financial
Officer of the Purchaser, acting severally, as its proxy, with full power of
substitution, in the name, place and stead of the Seller, to vote all Excess
Voting Securities at any such meeting (and at any adjournment or adjournments
thereof) or with respect to any such written consent in the manner described in
the preceding sentence. The Seller agrees that this proxy is coupled with an
interest and shall be irrevocable.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 Survival. All representations and warranties made in this
Agreement and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive until the first anniversary of
the execution and delivery of this Agreement.
SECTION 8.2 Notices. Unless otherwise provided in this Agreement, any
notice, request, instruction or other communication to be given hereunder by
either Party to the other shall be in writing and (a) delivered personally, (b)
mailed by first-class mail, postage prepaid, (such mailed notice to be effective
four days after the date it is mailed) or (c) sent by facsimile transmission,
with a confirmation sent by way of one of the above methods, as follows:
If to the Seller, addressed to:
Xxxxxxx Distressed Investment Master Fund, Ltd.
c/o HMC Distressed Investment Offshore Manager, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Distressed Investment Master Fund, Ltd.
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
and
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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If to the Purchaser, addressed to:
Mission Resources Corporation
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Either Party may designate in a writing to the other Party any other address or
facsimile number to which, and any other Person to whom or which, a copy of any
such notice, request, instruction or other communication should be sent.
SECTION 8.3 Choice of Law. This Agreement shall be construed (both as
to validity and performance) and enforced in accordance with, and governed by
the laws of the State of New York applicable to agreements made and to be
performed wholly within such jurisdiction and irrespective of any choice of law
provision that would require application of the law of any other jurisdiction.
SECTION 8.4 No Consequential or Punitive Damages. Neither Party hereto
(or any of their respective Affiliates) shall, under any circumstance, be liable
to the other Party (or its Affiliates) for any consequential, exemplary,
special, indirect, incidental or punitive damages claimed by such other Party
under the terms of or due to any breach of this Agreement, including, but not
limited to, loss of revenue or income, cost of capital, or loss of business
reputation or opportunity.
SECTION 8.5 Titles. The headings of the articles and sections of this
Agreement are inserted for convenience of reference only and shall not affect
the meaning or interpretation of this Agreement.
SECTION 8.6 Waiver. No failure of a Party to require, and no delay by a
Party in requiring, the other Party to comply with any provision of this
Agreement shall constitute a waiver of the right to require such compliance. No
failure of a Party to exercise, and no delay by a Party in exercising, any right
or remedy under this Agreement shall constitute a waiver of such right or
remedy. No waiver by a Party of any right or remedy under this Agreement shall
be effective unless made in writing. Any waiver by a Party of any right or
remedy under this Agreement shall be limited to the specific instance and shall
not constitute a waiver of such right or remedy in the future.
SECTION 8.7 Binding; Third-Party Beneficiaries. This Agreement shall be
binding upon the Parties and upon each of their respective successors and
assignees and shall inure to the
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benefit of, and be enforceable by, each Party and each of their respective
successors and assignees; provided, however, that, with the exception of an
assignment by the Seller to any Affiliate thereof, neither Party shall assign
any right or obligation arising pursuant to this Agreement without first
obtaining the written consent of the other Party. Nothing in this Agreement
shall create or be deemed to create any third-party beneficiary rights in any
Person not a party to this Agreement.
SECTION 8.8 Entire Agreement. This Agreement and the Letter Agreement
contain the entire agreement between the Parties with respect to the subject of
this Agreement, and supersedes each course of conduct previously pursued,
accepted or acquiesced in, and each written and oral agreement and
representation previously made, by the Parties with respect thereto, whether or
not relied or acted upon.
SECTION 8.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8.10 Modification. No course of performance or other conduct
hereafter pursued, accepted or acquiesced in, and no oral agreement or
representation made in the future, by the Parties, whether or not relied or
acted upon, and no usage of trade, whether or not relied or acted upon, shall
modify or terminate this Agreement, impair or otherwise affect any obligation of
the Parties pursuant to this Agreement or otherwise operate as a waiver of any
such right or remedy. No modification of this Agreement or waiver of any such
right or remedy shall be effective unless made in writing duly executed by the
Purchaser and the Seller.
SECTION 8.11 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
taken together shall constitute one and the same instrument. Either Party may
execute this Agreement by facsimile signature and the other Party shall be
entitled to rely on such facsimile signature as evidence that this Agreement has
been duly executed by such Party. Either Party executing this Agreement by
facsimile signature shall immediately forward to the other Party an original
signature page by overnight mail or delivery service.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the Purchaser and the Seller has caused to
be executed by a duly authorized officer this Agreement on the day and year
indicated at the beginning of this Agreement.
MISSION RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, Chairman, President and
Chief Executive Officer
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Xxxxxxx Distressed Investment Master
Fund, Ltd.
By: HMC Distressed Investment Offshore
Manager, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
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