Exhibit 10.52
RIO VISTA XXXXX LLC
TCW ASSET MANAGEMENT COMPANY,
as Administrative Agent
and
TCW ENERGY FUND X INVESTORS,
as Holders
$30,000,000 Senior Secured Notes
November 19, 2007
TABLE OF CONTENTS
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ARTICLE I — Definitions and References |
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Section 1.1. Defined Terms |
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Section 1.2. Exhibits and Schedules; Additional Definitions |
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21 |
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Section 1.3. Amendment of Defined Instruments |
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Section 1.4. References and Titles |
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Section 1.5. Calculations and Determinations |
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Section 1.6. Joint Preparation; Construction of Indemnities and Releases |
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ARTICLE II — Purchase and Sale of Securities |
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Section 2.1. Note Purchase; Amendment & Restatement |
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Section 2.2. The Notes |
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23 |
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Section 2.3. Requests for New Loans |
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Section 2.4. [Reserved] |
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Section 2.5. Use of Proceeds |
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Section 2.6. Interest Rates and Fees; Payment Dates |
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Section 2.7. Collateral Account |
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25 |
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Section 2.8. Mandatory Prepayments & Note Exchange |
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27 |
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Section 2.9. Optional Prepayments |
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28 |
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Section 2.10. Financing Arrangements |
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28 |
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ARTICLE III — Payments to Holders |
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28 |
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Section 3.1. General Procedures |
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Section 3.2. Payment of Interest |
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29 |
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Section 3.3. Place of Payment |
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Section 3.4. Capital Reimbursement |
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Section 3.5. Reimbursable Taxes |
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30 |
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ARTICLE IV — Conditions Precedent to Lending |
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31 |
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Section 4.1. Closing Date Conditions |
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Section 4.2. Additional Conditions Precedent |
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33 |
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Section 4.3. Conditions Precedent to Company’s Obligations |
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34 |
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ARTICLE V — Representations and Warranties of Company |
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Section 5.1. No Default |
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Section 5.2. Organization and Good Standing |
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Section 5.3. Authorization |
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Section 5.4. No Conflicts or Consents |
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Section 5.5. Enforceable Obligations |
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36 |
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Section 5.6. Initial Pro Forma Financial Statements |
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Section 5.7. Other Obligations and Restrictions |
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36 |
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Section 5.8. Full Disclosure |
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36 |
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Section 5.9. Litigation |
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37 |
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Section 5.10. Labor Disputes and Acts of God |
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Section 5.11. ERISA Plans and Liabilities |
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Section 5.12. Environmental and Other Laws |
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Section 5.13. Insurance |
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38 |
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Section 5.14. Names and Places of Business |
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Section 5.15. Subsidiaries |
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Section 5.16. Government Regulation |
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38 |
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Section 5.17. Solvency |
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Section 5.18. Title to Properties; Licenses |
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Section 5.19. Regulation U |
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Section 5.20. Leases and Contracts; Performance of Obligations |
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Section 5.21. Marketing Arrangements |
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Section 5.22. Right to Receive Payment for Future Production |
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Section 5.23. Operation of Oil and Gas Properties |
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Section 5.24. Ad Valorem and Severance Taxes; Litigation |
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Section 5.25. Acquisition |
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42 |
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ARTICLE VI — Representations and Warranties of Holders |
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Section 6.1. Organization of Holders |
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Section 6.2. Authority of Holders |
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Section 6.3. Compliance with Laws and Other Instruments |
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Section 6.4. Acquisition for Holder’s Account |
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Section 6.5. Notes Not Registered |
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43 |
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Section 6.6. Accredited Investor |
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ARTICLE VII — Affirmative Covenants of Company |
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Section 7.1. Payment and Performance |
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Section 7.2. Books, Financial Statements and Reports |
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Section 7.3. Notice of Material Events and Change of Address |
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Section 7.4. Maintenance of Properties |
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Section 7.5. Maintenance of Existence and Qualifications |
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Section 7.6. Payment of Trade Liabilities, Taxes, etc. |
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Section 7.7. Insurance |
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Section 7.8. Performance on Company’s Behalf |
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Section 7.9. Interest |
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Section 7.10. Compliance with Agreements and Law |
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Section 7.11. Board Observation Rights |
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Section 7.12. Separateness Covenants |
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Section 7.13. Environmental Matters; Environmental Reviews |
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Section 7.14. Evidence of Compliance |
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Section 7.15. Bank Accounts; Offset |
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Section 7.16. Guaranties of Company’s Subsidiaries |
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Section 7.17. Agreement to Deliver Security Documents |
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Section 7.18. Production Proceeds |
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Section 7.19. Leases and Contracts; Performance of Obligations |
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Section 7.20. Approved Plan of Development; Project Xxxx |
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Section 7.21. Hedging Contracts |
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Section 7.22. Other Information and Inspections |
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Section 7.23. Post Closing Items |
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ARTICLE VIII — Negative Covenants of Company |
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Section 8.1. Indebtedness |
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Section 8.2. Limitation on Liens |
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Section 8.3. Limitation on Hedging Contracts |
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Section 8.4. Limitation on Mergers, Issuances of Securities |
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Section 8.5. Limitation on Dispositions of Property |
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Section 8.6. Limitation on Dividends and Redemptions |
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Section 8.7. Limitation on Investments and New Businesses |
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Section 8.8. Limitation on Credit Extensions |
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Section 8.9. Transactions with Affiliates |
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Section 8.10. Prohibited Contracts |
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Section 8.11. Coverage Ratio |
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Section 8.12. Current Ratio |
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Section 8.13. Amendments to Organizational Documents; Other Material Agreements |
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Section 8.14. Acquisition Documents |
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Section 8.15. Excess Drilling & Completion Costs |
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Section 8.16. General and Administrative Expenses |
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Section 8.17. Capital Expenditures |
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ARTICLE IX — Events of Default and Remedies |
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Section 9.1. Events of Default |
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Section 9.2. Remedies |
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ARTICLE X — TRANSFERABILITY OF SECURITIES |
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Section 10.1. Restrictive Legend |
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60 |
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ARTICLE XI — Administrative Agent |
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Section 11.1. Appointment and Authority |
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Section 11.2. Exculpation, Administrative Agent’s Reliance, Etc. |
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Section 11.3. Credit Decisions |
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Section 11.4. Indemnification |
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Section 11.5. Rights as Holder |
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Section 11.6. Sharing of Set-Offs and Other Payments |
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Section 11.7. Investments |
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Section 11.8. Benefit of Article XI |
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Section 11.9. Resignation |
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Section 11.10. Notice of Default |
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Section 11.11. Limitation of Duties and Fiduciary Relationship |
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Section 11.12. Limitation of Liability |
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Section 11.13. Reliance upon Documentation |
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Section 11.14. Reliance by Company |
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ARTICLE XII — Miscellaneous |
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Section 12.1. Waivers and Amendments; Acknowledgments |
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Section 12.2. Survival of Agreements; Cumulative Nature |
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Section 12.3. Notices |
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Section 12.4. Payment of Expenses; Indemnity |
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Section 12.5. Joint and Several Liability |
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Section 12.6. Registration, Transfer, Exchange, Substitution of Notes |
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Section 12.7. Confidentiality |
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Section 12.8. Governing Law; Submission to Process |
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Section 12.9. Limitation on Interest |
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Section 12.10. Termination; Limited Survival |
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Section 12.11. Severability |
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Section 12.12. Counterparts; Fax |
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Section 12.13. Third Party Beneficiaries |
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Section 12.14. USA PATRIOT Act Notice |
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Section 12.15.
Waiver of Jury Trial, Punitive Damages, etc. |
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Section 12.16. Amendment and Reconveyance Fee |
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Section 12.17. Amendment and Restatement |
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Schedules and Exhibits:
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Schedule 1
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Disclosure Schedule |
Schedule 2
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Security Schedule |
Schedule 3
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Insurance Schedule |
Schedule 4
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Holders Schedule |
Schedule 5
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Organizational Structure |
Schedule 6
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Approved Plan of Development |
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Exhibit A
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Form of Promissory Note |
Exhibit B
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Form of Borrowing Notice |
Exhibit C
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Form of Prepayment Notice |
Exhibit D
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Certificate Accompanying Financial Statements |
Exhibit E
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Form of Opinion of Counsel |
Exhibit F
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Form of Approval Letter |
iv
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Rio Vista Xxxxx LLC, an Oklahoma limited liability company (“Company”); |
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TCW Energy Fund X — NL, L.P., a California limited
partnership (“Fund X —
NL”); |
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TCW Energy Fund XB — NL, L.P., a California limited
partnership (“Fund XB —
NL”); |
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TCW Energy Fund XC — NL, L.P., a California limited partnership (“Fund
XC — NL”); |
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TCW Energy Fund XD — NL, L.P., a California limited partnership (“Fund
XD — NL”); |
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TCW Asset Management Company (“TAMCO”), a California corporation, as
Investment Manager under the Amended and Restated Investment Management
and Custody Agreement dated as of December 3, 2003 among Ensign Peak
Advisors, Inc., TAMCO and Trust Company of the West
(“TCW”), a California
trust company, as Sub-Custodian; |
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TAMCO as Investment Manager under the Amended and Restated Investment
Management and Custody Agreement dated as of March 18, 2004 among ING
Life Insurance and Annuity Company, TAMCO and TCW as Sub-Custodian; |
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TAMCO as Investment Manager under the Amended and Restated Investment
Management and Custody Agreement dated as of December 11, 2003, among
Xxxxx X. Xxxxxxx, Xx. Partition Trust, Xxxxx X. Xxxxxxx, Xx. Trust, Xxxx Xxxxxxx
Xxxxxxx Xxxxxx Partition Trust, Xxxx Xxxxxxx Uihlien Trust, TAMCO and TCW as
Sub-Custodian (TAMCO in the capacities designated above, Fund X — NL, Fund
XB — NL, Fund XC — NL, and Fund XD — NL together with their respective
successors and assigns, are hereinafter collectively referred to as
the “Holders”,
each a “Holder”); and |
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TAMCO, as Administrative Agent (together with its successors in such
capacity, the “Administrative Agent”). |
Section 1.1.
Defined Terms. As used in this Agreement, each of the following terms
has the meaning given to such term in this Section 1.1 or in the sections and subsections referred
to below:
“Acquisition” means (a) the purchase by Company of the Assets (as such term is defined in the
Acquisition Xxxxx Agreement), (b) the purchase by GO of the Membership Interests (as such term is
defined in the Acquisition GO Agreement) of GO LLC, and (c) the purchase by Company of the Assets
of Existing Borrower.
“Acquisition Agreements” means, collectively, (a) the Acquisition Xxxxx Agreement, (b)
the Acquisition GO Agreement, and (c) the Acquisition GM Agreement.
“Acquisition Closing Date” means the date on which the closing of the
Acquisition occurs under the Acquisition Documents.
“Acquisition Documents” means (a) the Acquisition Agreements, (b) the transfers,
assignments and conveyances executed and delivered pursuant thereto, and (c) all other agreements,
assignments, deeds, conveyances, certificates and other documents and instruments now or hereafter
executed and delivered pursuant to the Acquisition Agreements or in connection with the
Acquisition.
[Note Purchase Agreement]
2
“Acquisition GM Agreement” means that certain Asset Purchase Agreement dated as of
October 1, 2007 by and between Company and Existing Borrower, as amended by that certain Amendment
to Asset Purchase Agreement dated as of November 16, 2007.
“Acquisition GO Agreement” means that certain Stock Purchase Agreement dated as of
October 2, 2007 by and between GO and Outback Production, Inc., a Nevada corporation, GO LLC, and
the shareholders named therein, as amended by that certain Amendment to Membership Interest
Purchase and Sale Agreement dated as of November 16, 2007.
“Acquisition Xxxxx Agreement” means that certain Asset Purchase Agreement dated
effective as of October 1, 2007 by and between Company and Xxxxx Petroleum, as amended by that
certain Amendment to Asset Purchase Agreement dated October 25, 2007, and that certain Second
Amendment to Asset Purchase Agreement dated as of November 16, 2007.
“Administrative Agent” has the meaning given to such term in the preamble hereto.
“Affiliate” means, as to any Person, each other Person that directly or indirectly (through
one or more intermediaries or otherwise) controls, is controlled by, or is under common control
with, such Person. A Person shall be deemed to be “controlled by” any other Person if such other
Person possesses, directly or indirectly, power:
(a) to vote 10% or more of the securities or other equity interests (on a fully diluted
basis) having ordinary voting power for the election of directors, the managing general
partner or partners or the managing member or members; or
(b) to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
“Aggregate Advance Amount” means, at the time in question, the aggregate
principal amount of Loans advanced by Holders during the term of this Agreement.
“Agreed Pricing” means:
(a) for anticipated sales of Hydrocarbons that are fixed in a firm fixed price sales
contract with an investment grade counterparty (or another counterparty approved by
Administrative Agent), the fixed price or prices provided for in such sales contract during
the term thereof;
(b) for anticipated sales of Hydrocarbons that are hedged by a fixed price Hedging
Contract with an investment grade counterparty, the fixed price or prices provided for in such
Hedging Contract during the term thereof, as modified by any necessary adjustment specified by
Administrative Agent for quality and geographical differentials;
(c) for anticipated sales of Hydrocarbons that are hedged by a Hedging Contract with
an investment grade counterparty which Hedging Contract provides for a range of prices
between a floor and a ceiling, the prices provided for in subsection (d) below, provided that
during the term of such Hedging Contract such prices shall in no event be less than such floor
or exceed such ceiling, as such floor and ceiling are modified by any necessary adjustment
specified by Administrative Agent for quality and geographical differentials;
[Note Purchase Agreement]
3
(d) for anticipated sales of Hydrocarbons, if such sales are not hedged by a Hedging
Contract or sales contract that is described in paragraphs (a), (b), or (c) above, for the date of
calculation (or, if such date is not a Business Day, for the first Business Day thereafter), and
with any necessary adjustment specified by Administrative Agent for quality and geographical
differentials:
(i) For the remainder of the current calendar year, the average NYMEX Pricing for the
remaining contracts in the current calendar year,
(ii) For each of the succeeding three complete calendar years, the average NYMEX
Pricing for the twelve months in each such calendar year,
(iii) For the succeeding fourth complete calendar year, and for each calendar year
thereafter, the average NYMEX Pricing for the twelve months in such fourth calendar year.
“Agreement” means this Note Purchase Agreement.
“AMI Violation” means the ownership or acquisition, directly or indirectly of any interest of
any kind (including any interests or rights of the kinds described in the definition of Oil and Gas
Properties) in the Project Area by any Affiliate of or holder of Equity in Parent or Company, other
than the oil and gas pipeline assets owned by GO LLC and MV Pipeline on the Acquisition Closing
Date.
“ANCF” (or “Adjusted Net Cash Flow”) means the positive remainder of:
(a) Gross Cash Revenues determined on a Consolidated basis during any ANCF
Quarter (or other period of calculation, if applicable), less
(b) actual Consolidated cash payments by ECO and its Subsidiaries during such
ANCF Quarter (or other period of calculation, if applicable) for:
(i) Existing royalties and burdens on the Eligible Mortgaged Properties, if any,
that constitute Permitted Liens (to the extent and only to the extent production receipts
relating to the same are included in Gross Cash Revenues);
(ii) Direct Taxes on the Eligible Mortgaged Properties;
(iii) ANCF XXX;
(iv) ANCF Transportation Costs;
(iv) ANCF Overhead Costs;
[Note Purchase Agreement]
4
(v) Interest payments on the Notes and accrued commitment fees under Section
2.6(c); and
(vi) ANCF Capital Expenditures.
“ANCF Capital Expenditures” means capital expenditures made by Restricted Persons on
the Eligible Mortgaged Properties, to the extent the same either (a) have been approved by Required
Holders at the time in question by means of an Approval Letter, or (b) are included in the Approved
Plan of Development, as then in effect (excluding (i) capital expenditures paid for with proceeds
of Loans hereunder and (ii) any Excess Drilling & Completion Costs).
“ANCF XXX” means (i) leasehold operating expenses in the ordinary course of business, provided
that such expenses shall in no event exceed the amount of $0.50 per mcf of natural gas (determined
on a net basis to Restricted Persons), in each case without the express written approval of
Required Holders (which approval may be given in their sole and absolute discretion), and (ii)
other field level or lease level charges for operations on the Eligible Mortgaged Properties
(excluding ANCF Capital Expenditures and other capital expenditures) that have been approved by
Administrative Agent on behalf of Required Holders at the time in question by means of an Approval
Letter.
“ANCF Overhead Costs” means (i) Permitted G&A Expense Amounts, and (ii) other costs of
Restricted Persons to the extent such other costs have been approved as ANCF Overhead Costs by
Administrative Agent on behalf of Required Holders at the time in question by means of an Approval
Letter.
“ANCF Quarter” means, with respect to a Quarterly Payment Date and the calculation of ANCF,
the three calendar month period ending on the last day of the most recent February, May, August or
November immediately preceding such Quarterly Payment Date.
“ANCF Transportation Costs” means (i) the actual costs of gathering, processing,
compressing, and transporting production from the Eligible Mortgaged Properties from the wellhead
to the point of sale, provided that all such costs are negotiated with, and paid to, third parties
in arms-length transactions on terms which are reasonable in the area of operations for the quality
and quantity of such production for the time period negotiated, at the time such prices are agreed
to, or (ii) other transportation or marketing costs, to the extent such other transportation and
marketing costs have been approved by Administrative Agent on behalf of Required Holders at the
time in question by means of an Approval Letter; provided that such costs shall in no event exceed
the amount of (1) $0.42 per mcf of natural gas with respect to the Enogex pipeline, or (2) $0.44
per mcf of natural gas with respect to the PetroQuest pipeline, in each case without the express
written approval of Required Holders (which approval may be given in their sole and absolute
discretion).
“Approval Letter” means a letter given by Administrative Agent on behalf of Required Holders
in the form of Exhibit F.
[Note Purchase Agreement]
5
“Approved
Plan of Development” or “APOD” means Company’s written plan of development
with respect to budgeted capital expenditures (including maximum annual expenditures) and other
development activities that is described in Schedule 6, as amended and
supplemented from time to time with the consent of Required Holders; provided that no such consent
shall be required for amendments, modifications or supplements to the extent, but only to the
extent, that any such amendments, modifications or supplements (a) either (i) are administrative or
ministerial in nature, or (ii) would make non-material amendments to the timing for the completion
of any such development (other than an amendment extending the timing of the substantial completion
of the APOD), and (b) do not increase the aggregate permitted budgeted capital expenditures of
Company and its Subsidiaries under such written plan.
“Assumption Agreement” means that certain Assumption Agreement of even date
herewith among Existing Borrower, Company, Administrative Agent, and Holders.
“Availability Period” means the period from and including the Closing Date until the
earliest to occur of: (a) the date on which an Event of Default occurs; (b) the date on which a
Coverage Deficiency occurs; and (c) October 31, 2008 (or, if earlier, the day on which the
obligations of Holders to make Loans hereunder have been terminated or the Notes first become due
and payable in full); provided that such date may be extended in writing by Required Holders in
their sole and absolute discretion.
“Borrowing” means a borrowing of new Loans pursuant to Section 2.3.
“Borrowing Notice” means a written or telephonic request, or a written confirmation,
made by Company which meets the requirements of Section 2.3.
“Budgeted Drilling & Completion Costs” means, with respect to each well comprising
part of the APOD, (a) the budgeted drilling costs for such well set forth in the APOD, and (b) the
budgeted completion costs for such well set forth in the APOD.
“
Business Day” means a day, other than a Saturday or Sunday, on which commercial banks are
open for business with the public in
New York,
New York.
“Capital Lease” means a lease with respect to which the lessee is required concurrently to
recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“Capital Lease Obligation” means, with respect to any Person and a Capital Lease, the
amount of the obligation of such Person as the lessee under such Capital Lease which should, in
accordance with GAAP, appear as a liability on the balance sheet of such Person.
“Cash Equivalents” means Investments in:
(a) marketable obligations, maturing within twelve months after acquisition thereof,
issued or unconditionally guaranteed by the United States of America or an instrumentality or
agency thereof and entitled to the full faith and credit of the United States of America;
(b) demand deposits, and time deposits (including certificates of deposit) maturing
within twelve months from the date of deposit thereof, with a domestic office of any national
or state bank or trust company which is organized under the Laws of the United States of America
or any state therein, which has capital, surplus and undivided profits of at least $500,000,000,
and whose long term certificates of deposit are rated at least Aa3 by Xxxxx’x or AA- by S & P;
[Note Purchase Agreement]
6
(c) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in subsection (a) above entered into with any commercial
bank meeting the specifications of subsection (b) above;
(d) open market commercial paper, maturing within 270 days after acquisition
thereof, which are rated at least P-1 by Xxxxx’x or A-1 by S & P; and
(e) money market or other mutual funds substantially all of whose assets comprise
securities of the types described in subsections (a) through (d) above.
“Change of Control” means the occurrence of any of the following events: (a) General
Partner shall cease to be the sole general partner of Parent,
(b) Penn Octane Corporation, a
Delaware corporation shall cease to own at least fifty-one percent (51%) of the Equity of General
Partner, (c) any amendment, modification or supplement to the Partnership Agreement that materially
reduces the powers and discretion of General Partner to manage the business and affairs of Parent,
(d) any merger or consolidation of General Partner or Parent with or into any other business
entity, (e) Xxx Xxxxxxxx ceases for any reason to serve as the sole Manager of Company and is not
replaced within 60 days thereafter by a person reasonably acceptable to Required Holders, (f)
Parent shall at any time fail to own, directly or indirectly, 100% of the then issued and
outstanding Equity of ECO, or (g) ECO shall at any time fail to own, directly or indirectly, 100%
of the then issued and outstanding Equity of Company or any Guarantor.
“Closing Date” means the date on which all of the conditions precedent set forth in
Section 4.1 shall have been satisfied or waived.
“Closing Date Transactions” means the consummation on the Acquisition Closing Date of
the transactions contemplated by the Acquisition Documents.
“Collateral” means all property of any kind which is subject to a Lien in favor of Holders
(or in favor of Administrative Agent for the benefit of Holders) or which, under the terms of any
Security Document, is purported to be subject to such a Lien.
“Collateral Account” means the deposit account to be established in the name of
Company within ten Business Days after the date herewith with a depository institution satisfactory
to Administrative Agent, or such other deposit account as may be established by Company from time
to time with the prior written consent of Administrative Agent, which consent may be given or
withheld in its sole and absolute discretion.
“Collateral Account Agreement” means all documents or agreements governing or
evidencing the Collateral Account.
“Collateral Coverage Ratio” means the quotient of (i) the sum of (a) Restricted
Persons’ Total Modified NPV10 and (b) Restricted Persons’ Working Capital (which, if negative,
shall be deducted from Total Modified NPV10) divided by (ii) Restricted Persons’ total
Indebtedness.
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7
“Commitment” means, as to each Holder, its obligation to make Loans to Company pursuant to
Section 2.1 in an aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Holder’s name on the Holders Schedule under the heading “Commitment” or in
the Assignment Agreement pursuant to which such Holder becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement. Notwithstanding
that the Note Documents are documented with reference to the Maximum Credit Amount, it is expressly
understood and agreed that Holders have no obligation to make Loans up to the Maximum Credit Amount
or to increase the amount of the commitments set forth on the Holders Schedule or such Assignment
Agreement, as applicable, and that Holders’ commitments to make Loans hereunder is determined by
reference to the “Commitment” set forth on such Holders Schedule or such Assignment Agreement, as
applicable.
“Commitment Fee Rate” means the per annum rate equal to one-half of one percent
(0.50%).
“Company” means Rio Vista Xxxxx LLC, an Oklahoma limited liability company.
“Company Confidential Information” has the meaning given to such term in Section
12.7(b).
“Consolidated” refers to the consolidation of any Person, in accordance with GAAP, with its
properly consolidated subsidiaries. References herein to a Person’s Consolidated financial
statements, financial position, financial condition, liabilities, etc. refer to the consolidated
financial statements, financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries. The above reference to GAAP shall not be deemed to cause
matters described herein as being on a cash basis, such as Gross Cash Revenues or ANCF, to be
changed to an accrual basis.
“Coverage Default” means that the Collateral Coverage Ratio is less than 1.2 at any
time in question.
“Coverage Deficiency” means the Collateral Coverage Ratio is less than 1.50 but equal
to or greater than 1.20.
“Current Ratio” means, at any time, the ratio of ECO’s Consolidated current assets to ECO’s
Consolidated current liabilities at such time. For purposes of this Agreement, “Consolidated
current assets” and “Consolidated current liabilities” shall be determined in accordance with GAAP,
except that Consolidated current assets and Consolidated current liabilities will be calculated
without including any amounts resulting from the application of FASB Statements 133 or 143.
“Dedication Rate” means 90%, provided that such rate will increase to 100% whenever (a) an
Event of Default exists or (b) a Coverage Deficiency occurs that is not cured within thirty (30)
days after such occurrence.
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8
“Default” means any Event of Default and any default, event or condition which would, with the
giving of any requisite notices and the passage of any requisite periods of time, constitute an
Event of Default.
“Default Rate” means the rate per annum equal to two percent (2%) above the Fixed Rate,
provided that no Default Rate charged by any Person shall ever exceed the Highest Lawful Rate.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit, and any other deposit account, as defined in the UCC.
“Direct Taxes” means any severance, ad valorem, or other direct taxes on properties owned by
any Restricted Person or the production therefrom or the proceeds of such production; provided that
federal, state, or local income or franchise taxes shall in no event be considered Direct Taxes.
“Disclosure Schedule” means Schedule 1 hereto.
“Distribution” means (a) any dividend or other distribution made by a Restricted Person on or
in respect of any stock, partnership interest, or other equity interest in such Restricted Person
or any other Restricted Person (including any option or warrant to buy such an equity interest), or
(b) any payment made by a Restricted Person to purchase, redeem, acquire or retire any stock,
partnership interest, or other equity interest in such Restricted Person or any other Restricted
Person (including any such option or warrant).
“ECO” means Rio Vista ECO LLC, an Oklahoma limited liability company.
“Eligible Mortgaged Properties” means, collectively, those Oil and Gas Properties (a)
which are owned by Company or any other Restricted Person and mortgaged to Administrative Agent to
secure the Obligations, (b) for which Administrative Agent has received title opinions or other
title information concerning such interests in form, substance and authorship satisfactory to
Administrative Agent, and (c) which are free and clear of all Liens other than Permitted Liens.
“Engineering Report” means each engineering report delivered pursuant to Section
7.2.
“Environmental Laws” means any and all Laws relating to the environment or to
emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment including ambient air,
surface water, ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.
“Equity” means shares of capital stock or a partnership, profits, capital, member or other
equity interest, or options, warrants or any other rights to substitute for or otherwise acquire
the capital stock or a partnership, profits, capital, member or other equity interest of any
Person.
[Note Purchase Agreement]
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor statutes or statute, together with all rules and regulations promulgated
with respect thereto.
“ERISA Affiliate” means each Restricted Person and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under common control that,
together with such Restricted Person, are treated as a single employer under Section 414 of the
Internal Revenue Code.
“ERISA Plan” means any employee pension benefit plan subject to Title IV of ERISA
maintained by any ERISA Affiliate with respect to which any Restricted Person has a fixed or
contingent liability.
“Event of Default” has the meaning given to such term in Section 9.1.
“Excess Drilling & Completion Costs” means, with respect to each well comprising part
of the APOD, an amount (if positive) equal to the remainder of (a) the drilling and completion
costs incurred to such date for such well, minus (b) the Budgeted Drilling & Completion Costs for
such well.
“Existing Borrower” means G M Oil Properties, Inc., an Oklahoma corporation, as
successor by merger to Steadfast Resources, Inc., a Nevada corporation.
“Existing Credit Documents” means (a) the Existing Note Purchase Agreement, (b) the
Existing Notes and Security Documents (as such term is defined in the Existing Note Purchase
Agreement), and (c) and all other certificates, documents, instruments or agreements executed
and delivered in connection therewith.
“Existing Note Purchase Agreement” means that certain Note Purchase Agreement dated as
of August 29, 2005 by and among Existing Borrower, Administrative Agent, and the holders party
thereto, as amended or supplemented. Without limiting the provisions of the Assumption Agreement,
pursuant to the Assumption Agreement, Company has assumed and promised to pay according to the
terms thereof all Existing Obligations and also assumed and promised to keep and perform all other
covenants and obligations in the Existing Note Purchase Agreement to be performed by Existing
Borrower thereunder.
“Existing Notes” means the Notes (as such term is defined in the Existing Note Purchase
Agreement).
“Existing Obligations” means the Obligations (as such term is defined in the Existing
Note Purchase Agreement) evidenced by the Existing Notes in the aggregate principal amount of
$16,500,000 that has been assumed by Company pursuant to the terms of the Assumption Agreement and
renewed and continued (but not novated or extinguished) by this Agreement and the Notes.
“Fiscal Quarter” means a three-month period ending on March 31, June 30, September 30 or
December 31 of any year.
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10
“Fiscal Year” means a twelve-month period ending on December 31 of any year.
“Fixed
Rate” means the rate of ten and one-half percent (10.50%) per annum.
“GAAP” means those generally accepted accounting principles and practices which are recognized
as such by the Financial Accounting Standards Board (or any generally recognized successor) and
which, in the case of Restricted Persons and their Consolidated Subsidiaries, are applied for all
periods after the date hereof in a manner consistent with the manner
in which such principles and
practices were applied to the Initial Pro Forma Financial Statements. If any change in any
accounting principle or practice is required by the Financial Accounting Standards Board (or any
such successor) in order for such principle or practice to continue as a generally accepted
accounting principle or practice, all reports and financial statements required hereunder with
respect to any Restricted Person or with respect to any Restricted Person and its Consolidated
Subsidiaries may be prepared in accordance with such change, but all calculations and
determinations to be made hereunder may be made in accordance with such change only after notice of
such change is given to each Holder, and Required Holders and Administrative Agent agree to such
change insofar as it affects the accounting of such Restricted Person and its Consolidated
Subsidiaries.
“General Partner” means Rio Vista GP LLC, a Delaware limited liability company.
“GO” means Rio Vista GO LLC, an Oklahoma limited liability company.
“GO LLC” means GO, LLC, an Oklahoma limited liability company.
“GO Note” means that certain Promissory Note dated of even date herewith made by GO payable to
the order of Company in the original principal amount of $2,200,000.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Gross Cash Revenues” means all cash revenues and cash receipts of ECO and its
Subsidiaries on a Consolidated basis during any ANCF Quarter from any source or activity (excluding
without duplication only (a) funds received from Loans hereunder, (b) funds received from capital
contributions made to Restricted Persons, including sales of new Equity and funds received for
options or warrants to acquire such Equity, and (c) funds belonging to or received for the credit
of third parties, such as royalty, working interest or other interest owners, that are received for
transfer or payment to such third parties).
“Guarantor” means ECO and any Subsidiary of ECO which now or hereafter executes and delivers a
guaranty to Administrative Agent pursuant to Section 7.17.
“Hazardous Materials” means any substances regulated under any Environmental Law,
whether as pollutants, contaminants, or chemicals, or as industrial, toxic or hazardous substances
or wastes, or otherwise.
[Note Purchase Agreement]
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“Hedging Contract” means (a) any agreement providing for options, swaps, floors, caps,
collars, forward sales or forward purchases involving interest rates, commodities or commodity
prices, equities, currencies, bonds, or indexes based on any of the foregoing, (b) any option,
futures or forward contract traded on an exchange, and (c) any other derivative agreement or other
similar agreement or arrangement.
“Highest Lawful Rate” means, with respect to each Holder Party to whom Obligations are
owed, the maximum nonusurious rate of interest that such Holder Party is permitted under applicable
Law to contract for, take, charge, or receive with respect to such Obligations. All determinations
herein of the Highest Lawful Rate, or of any interest rate determined by reference to the Highest
Lawful Rate, shall be made separately for each Holder Party as appropriate to assure that the Note
Documents are not construed to obligate any Person to pay interest to any Holder Party at a rate in
excess of the Highest Lawful Rate applicable to such Holder Party.
“Holder Confidential Information” has the meaning given to such term in Section
12.7(a).
“Holder Parties” means Administrative Agent and all Holders.
“Holders” has the meaning given to such term in the preamble hereto.
“Holders Schedule” means Schedule 4 hereto.
“Hydrocarbons” means crude oil, natural gas or other liquid or gaseous hydrocarbons.
“Indebtedness” of any Person means Liabilities in any of the following categories:
(a) Liabilities for borrowed money;
(b) Liabilities constituting an obligation to pay the deferred purchase price of
property or services;
(c) Liabilities evidenced by a bond, debenture, note or similar instrument;
(d) Liabilities which (i) would under GAAP be shown on such Person’s balance sheet
as a liability, and (ii) are payable more than one year from the date of creation or
incurrence thereof (other than reserves for taxes and reserves for contingent obligations);
(e) Liabilities arising under Hedging Contracts;
(f) Capital Lease Obligations;
(g) Liabilities arising under conditional sales or other title retention agreements;
(h) Liabilities owing under direct or indirect guaranties of Liabilities of any other
Person or otherwise constituting obligations to purchase or acquire or to otherwise protect or
insure a creditor against loss in respect of Liabilities of any other Person (such as
obligations under working capital maintenance agreements, agreements to keep-well, or
agreements to purchase Liabilities, assets, goods, securities or services), but excluding endorsements in the
ordinary course of business of negotiable instruments in the course of collection;
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12
(i) Liabilities (for example, repurchase agreements, mandatorily redeemable preferred
stock and sale/leaseback agreements) consisting of an obligation to purchase or redeem securities
or other property, if such Liabilities arise out of or in connection with the sale or issuance of
the same or similar securities or property;
(j) Liabilities with respect to letters of credit or applications or reimbursement
agreements therefore;
(k) Liabilities with respect to banker’s acceptances;
(1) Liabilities with respect to payments received in consideration of oil, gas, or other
minerals yet to be acquired or produced at the time of payment (including obligations under
“take-or-pay” contracts to deliver gas in return for payments already received and the undischarged
balance of any production payment created by such Person or for the creation of which such Person
directly or indirectly received payment); or
(m) Liabilities with respect to other obligations to deliver goods or services in
consideration of advance payments therefor;
provided, however, that the “Indebtedness” of any Person shall not include Liabilities that were
incurred by such Person on ordinary trade terms to vendors, suppliers, or other Persons providing
goods and services for use by such Person in the ordinary course of its business, unless and until
such Liabilities are outstanding more than 90 days past the original invoice or billing date
therefor.
“Independent Engineer” means a nationally or regionally recognized independent
petroleum engineering company, which may be chosen by Company if acceptable to the Required
Holders in their sole and absolute discretion.
“Initial Pro Forma Financial Statements” means the pro forma balance sheet of Company
as of the Closing Date (after giving effect to the Closing Date Transactions).
“Insurance Advisor” means Aon Risk Services or such other reputable insurance advisor
reasonably acceptable to the Required Holders.
“Insurance Schedule” means Schedule 3 attached hereto.
“Internal Revenue Code” means the United States Internal Revenue Code of 1986, as
amended from time to time and any successor statute or statutes, together with all rules and
regulations promulgated with respect thereto.
“Investment” means any investment, made directly or indirectly, in any Person, whether by
purchase, acquisition of equity interests, indebtedness or other obligations or securities or by
extension of credit, loan, advance, capital contribution or otherwise and whether made in cash, by
the transfer of property, or by any other means.
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“Law” means any statute, law, regulation, ordinance, rule, treaty, judgment, order, decree,
permit, concession, franchise, license, agreement or other governmental restriction of the United
States or any state or political subdivision thereof or of any foreign country or any department,
province or other political subdivision thereof. Any reference to a Law includes any amendment or
modification to such Law, and all regulations, rulings, and other Laws promulgated under such Law.
“Liabilities” means, as to any Person, all indebtedness, liabilities and obligations of such
Person, whether matured or unmatured, liquidated or unliquidated, primary or secondary, direct or
indirect, absolute, fixed or contingent, and whether or not required to be considered pursuant to
GAAP.
“Lien” means, with respect to any property or assets, any right or interest therein of a
creditor to secure Liabilities owed to it or any other arrangement with such creditor which
provides for the payment of such Liabilities out of such property or assets or which allows such
creditor to have such Liabilities satisfied out of such property or assets prior to the general
creditors of any owner thereof, including any lien, mortgage, security interest, pledge, deposit,
production payment, rights of a vendor under any title retention or conditional sale agreement or
lease substantially equivalent thereto, tax lien, mechanic’s or materialman’s lien, or any other
charge or encumbrance for security purposes, whether arising by Law or agreement or otherwise, but
excluding any right of offset which arises without agreement in the ordinary course of business.
“Lien” also means any filed financing statement, any registration of a pledge (such as with an
Holder of uncertificated securities), or any other arrangement or action which would serve to
perfect a Lien described in the preceding sentence, regardless of whether such financing statement
is filed, such registration is made, or such arrangement or action is undertaken before or after
such Lien exists.
“Loans” means any Loan made by a Holder to Company pursuant to Section 2.1.
“Management Services Agreement” means the Management Services Agreement dated of even
date herewith among Parent, Northport, and Company, under which Northport has agreed to provide
certain management services and general and administrative services for the Restricted Persons and
has made certain other agreements.
“Material Adverse Change” means a material and adverse change, from the state of
affairs existing on November 19, 2007 or from the state of affairs represented or warranted in any
Note Document, to (a) ECO’s or Parent’s Consolidated financial condition, (b) ECO’s or Parent’s
Consolidated business, assets, operations, properties or prospects, considered as a whole, (c)
Company’s ability to timely pay the Obligations, (d) Parent’s ability to timely perform its
obligations under the Warrant, (e) Northport’s ability to timely perform its obligations under the
Management Services Agreement, or (f) the enforceability of the material terms of any Note
Documents.
“Material Contracts” means (a) the Acquisition Documents, and (b) any contract or
other arrangement to which ECO or any of its Subsidiaries is a party (other than the Note
Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be
expected to have a Material Adverse Change.
[Note Purchase Agreement]
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“Maturity Date” means August 29, 2010.
“Maximum Credit Amount” means the amount of $30,000,000.
“Minimum Scheduled Quarterly Principal Payment” means, with respect to any Quarterly
Payment Date, an amount equal to 3.125% of the outstanding principal balance of the Notes on such
date.
“Modified NPV10” means the sum of:
(a) with respect to any Proved Developed Producing Reserves attributable to the
Eligible Mortgaged Properties, the NPV10 of such Reserves (calculated utilizing 95% of
the expected future revenues of Restricted Persons attributable to such Reserves and 100% of
expected expenses); plus
(b) with respect to any Proved Developed Non-Producing Reserves attributable to the
Eligible Mortgaged Properties, the NPV10 of such Reserves (calculated utilizing 85% of the
expected future revenues of Restricted Persons attributable to such Reserves and 100% of
expected expenses); plus
(c) with respect to any Proved Undeveloped Reserves attributable to the Eligible
Mortgaged Properties, the NPV10 of such Reserves (calculated utilizing 75% of the expected
future revenues of Restricted Persons attributable to such Reserves and 100% of expected
expenses);
provided, however, that the Modified NPV10 for any particular Proved Developed Non-Producing
Reserves or Proved Undeveloped Reserves shall be zero (0) unless capital expenditures for the
development of such Reserves, in at least the amounts required pursuant to the most recent
Engineering Report, have been approved by Holder Parties as ANCF Capital Expenditures and such
capital is reasonably expected to be available from Borrowings or as a deduction from ANCF as ANCF
Capital Expenditures.
“Moody’s” means Xxxxx’x Investors Service, Inc., or its successor.
“Mortgage” means each deed of trust or mortgage from time to time given by Company or any
Guarantor to secure any of the Obligations, as each may be amended, supplemented or otherwise
modified from time to time.
“MV Pipeline” means MV Pipeline Company, an Oklahoma corporation.
“Northport” means Northport Production Company, an Oklahoma corporation.
“Note” means a promissory note in the form of Exhibit A evidencing one or more Loans, as
amended, supplemented or otherwise modified from time to time.
“Note Documents” means this Agreement, the Notes, the Security Documents, the ORRI Conveyance,
the Management Services Agreement, the Warrant, and all other agreements,
certificates, documents, instruments and writings at any time delivered in connection herewith or
therewith (exclusive of term sheets and commitment letters).
[Note Purchase Agreement]
15
“NPV10” means, with respect to any Proved Reserves expected to be produced from the Eligible
Mortgaged Properties, the net present value of the future net revenues expected to accrue to
Restricted Persons’ interests in such Reserves during the remaining expected economic lives of such
Reserves, discounted at 10% per annum. Each calculation of such expected future net revenues shall
be made as of the date requested in accordance with the then existing standards of the Society of
Petroleum Engineers and Society of Petroleum Evaluation Engineers, provided that in any event:
(a) appropriate deductions shall be made for (i) Direct Taxes and existing burdens
that are Permitted Liens, (ii) leasehold operating expenses, (iii) transportation, gathering,
compression, and marketing burdens, (iv) capital expenditures (including plugging and
abandonment costs) included in the Approved Plan of Development or otherwise approved in
writing by Required Holders, and (v) ANCF Overhead Costs, all consistent with the most recent
Engineering Report;
(b) the pricing assumptions used in determining NPV10 for any particular Proved
Reserves shall be the Agreed Pricing; and
(c) leasehold operating expenses and capital expenditures in the most recently
delivered Engineering Report will be escalated at the then current inflation rate.
NPV10 shall be calculated hereunder in connection with each Engineering Report, either by Company,
by Administrative Agent, or by the engineering firm who prepares such Engineering Report; in the
event of any conflict, Administrative Agent’s calculation shall be conclusive and final, absent
manifest error. As used above, “investment grade counterparty” means a Person whose senior
unsecured long-term debt obligations are rated BBB- by S&P and Baa3 or higher by Moody’s.
“NYMEX Pricing” means, as of any date of determination:
(a) for crude oil, ninety percent (90%) of the closing settlement price for the Light,
Sweet Crude Oil futures contract for the applicable month, and
(b) for natural gas, ninety percent (90%) of the closing settlement price for the Xxxxx
Hub Natural Gas futures contract for the applicable month,
in each case as published by
New York Mercantile Exchange (NYMEX) on its website currently located
at
xxx.xxxxx.xxx, or any successor thereto (as such price may be corrected or revised from
time to time by the NYMEX in accordance with its rules and regulations).
“Obligations” means all Liabilities from time to time owing by any Restricted Person to any
Holder Party (or any third party beneficiary of any Note Document) under or pursuant to any of the
Note Documents. “Obligation” means any part of the Obligations.
“Observer” has the meaning assigned to such term in Section 7.11.
[Note Purchase Agreement]
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“Oil and Gas Properties” means all of the following which are, at the time in
question, owned by ECO or any of its Subsidiaries: oil, gas and/or mineral leases, oil, gas or
mineral properties, mineral servitudes and/or mineral rights of any kind (including, without
limitation, mineral fee interests, lease interests, farmout interests, overriding royalty and
royalty interests, net profits interests, oil payment interests, production payment interests and
other types of mineral interests), and all oil and gas gathering, treating, compression, storage,
processing and handling assets.
“ORRI” means the overriding royalty interest in the Oil and Gas Properties conveyed to Royalty
Owner pursuant to the ORRI Conveyance.
“ORRI Conveyance” means the Overriding Royalty Conveyance executed by Existing
Borrower pursuant to the Existing Note Purchase Agreement in favor of Royalty Owner whereby
Existing Borrower conveyed an overriding royalty profits interest in and to its Oil and Gas
Properties, as amended or supplemented.
“Parent” means Rio Vista Energy Partners L.P., a Delaware limited partnership.
“Partnership Agreement” means that certain First Amended and Restated Agreement of
Limited Partnership of Rio Vista Energy Partners L.P. dated as of September 16, 2004.
“PDP Collateral Coverage Ratio” means the quotient of (i) the sum of (a) the Modified
NPV10 with respect to all Proved Developed Producing Reserves attributable to the Eligible
Mortgaged Properties, plus (b) Restricted Persons’ Working Capital (which, if negative, shall be
deducted) divided by (ii) Restricted Persons’ total Indebtedness.
“Xxxxx Petroleum” means Xxxxx Petroleum Corporation, an Oklahoma corporation.
“Percentage Share” means, with respect to any Holder (a) when used in Section 2.1 or
Section 2.2, in any Borrowing Notice or when no Loans are outstanding hereunder, the percentage set
forth below such Holder’s name on Holders Schedule, and (b) when used otherwise, the percentage
obtained by dividing (i) the sum of the unpaid principal balance of such Holder’s Loans at the time
in question, by (ii) the sum of the aggregate unpaid principal balance of all Loans at such time.
“Permitted ANCF Distributions” has the meaning given to such term in Section 8.6.
“Permitted G&A Expense Amount” means, with respect to a calendar month, the amount
equal to the “Service Fee” described in the Management Services Agreement.
“Permitted Investments” means
(a) Cash Equivalents; and
(b) normal and prudent extensions of credit by Restricted Persons to their customers
for buying goods and services in the ordinary course of business or to another Restricted
Person in the ordinary course of business, which extensions shall not be for longer periods than
those extended by similar businesses operated in a normal and prudent manner.
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“Permitted Liens” means:
(a) statutory Liens for taxes, assessments or other governmental charges or levies
which are not yet delinquent or which are being contested in good faith by appropriate action
and for which adequate reserves have been maintained in accordance with GAAP;
(b) landlords’, operators’, carriers’, warehousemen’s, repairmen’s, mechanics’,
materialmen’s, or other like Liens which do not secure Indebtedness, in each case only to the
extent arising in the ordinary course of business and only to the extent securing obligations
which are not delinquent or which are being contested in good faith by appropriate proceedings
and for which adequate reserves have been maintained in accordance with GAAP;
(c) minor defects and irregularities in title to any property, so long as such defects
and irregularities neither secure Indebtedness nor materially impair the value of such
property or the use of such property for the purposes for which such property is held;
(d) deposits of cash or securities to secure the performance of bids, trade contracts,
leases, statutory obligations and other obligations of a like nature (excluding appeal bonds)
incurred in the ordinary course of business and not constituting Indebtedness;
(e) Liens under the Security Documents;
(f) with respect only to property subject to any particular Security Document,
additional Liens burdening such property which are expressly allowed by such Security
Document; and
(g) Liens arising on or before the date hereof securing Indebtedness permitted under
Section 8.1 not to exceed the aggregate amount of $100,000.
“Person” means an individual, corporation, general partnership, limited partnership, limited
liability company, association, joint stock company, trust or trustee thereof, estate or executor
thereof, Governmental Authority, or any other legally recognizable entity.
“Prepayment Notice” means a notice in the form of Exhibit C, appropriately
completed.
“Project” means all drilling and reserve acquisition activities in or relating to the
Project Area.
“Project Area” means Xxxxxxx County, Oklahoma, XxXxxxxx County, Oklahoma and Pittsburgh
County, Oklahoma.
“Projected PDP Oil and Gas Production” means the projected production of oil or gas
(measured by volume unit or BTU equivalent, not sales price) for the term of the contracts or a
particular month, as applicable, from properties and interests owned by the Restricted Persons that
are located in or offshore of the United States and that have attributable to them Proved Developed
Producing Reserves, as such production is projected in the Engineering Report most recently
delivered, after deducting projected production from any properties or interests sold or under
contract for sale that had been included in such report and after adding projected
production from any properties or interests that had not been reflected in such report but that are
reflected in a separate or supplemental report meeting the requirements of Section 7.2(i) or (j),
as applicable, and otherwise are satisfactory to Administrative Agent.
[Note Purchase Agreement]
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“Proved Reserves” means “Proved Reserves” as defined in the Petroleum Resources Management
System as in effect at the time in question (in this definition, the “PRMS”) prepared by the Oil
and Gas Reserves Committee of the Society of Petroleum Engineers and reviewed and jointly sponsored
by the World Petroleum Council, the American Association of Petroleum Geologists and the Society of
Petroleum Evaluation Engineers (or any generally recognized successor organizations). “Proved
Developed Producing Reserves” means Proved Reserves that are categorized as “Developed Producing
Reserves” in the PRMS, “Proved Developed Nonproducing Reserves” means Proved Reserves that are
categorized as “Developed Nonproducing Reserves” in the PRMS, and “Proved Undeveloped Reserves”
means Proved Reserves that are categorized as “Undeveloped Reserves” in the PRMS.
“Quarterly Payment Date” means the second Business Day prior to the last day of each
March, June, September and December.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect.
“Required Holders” means Holders whose aggregate Percentage Shares exceed fifty
percent (50.0%).
“Reserves” means estimated volumes of crude oil, condensate, natural gas, natural gas liquids,
and associated substances anticipated to be commercially recoverable from known accumulations from
a given date forward, under then existing economic conditions, by established operating practices,
and under current government regulations. Reserve estimates are based on interpretation of geologic
or engineering data available at the time of the estimate. Reserves do not include volumes of crude
oil, condensate, natural gas, or natural gas liquids that have been produced (whether held in
tanks, pipelines, processing plants, or in a formation or aquifer that is being used for storage).
If required for financial reporting, reserve estimates or other purposes, Reserves may be reduced
for on-site or processing losses.
“Restricted Notes” has the meaning set forth under Rule 144 promulgated under the
Securities Act.
“Restricted Person” means any of Company, ECO, and each Subsidiary of ECO.
“Royalties” means overriding royalty and royalty interests, production payments, and similar
types of mineral interests.
“Royalty Owner” means TCW Energy Funds X Holdings, L.P.
“S & P” means Standard & Poor’s Ratings Services (a division of The McGraw Hill
Companies), or its successor.
“Securities Act” means the Securities Act of 1933, as amended.
[Note Purchase Agreement]
19
“Security Documents” means the instruments listed in the Security Schedule and all
other security agreements, deeds of trust, mortgages, chattel mortgages, pledges, guaranties,
financing statements, continuation statements, extension agreements and other agreements or
instruments now, heretofore, or hereafter delivered by any Restricted Person to Administrative
Agent in connection with this Agreement or any transaction contemplated hereby to secure or
guarantee the payment of any part of the Obligations or the performance of any Restricted Person’s
other duties and obligations under the Note Documents.
“Security Schedule” means Schedule 2 hereto.
“Subsidiary” means, with respect to any Person, any corporation, association, partnership,
limited liability company, joint venture, or other business or corporate entity, enterprise or
organization which is directly or indirectly (through one or more intermediaries) controlled by or
owned fifty percent or more by such Person.
“TCW Governing Documents” has the meaning given to such term in Section 11.11.
“Termination Event” means (a) the occurrence with respect to any ERISA Plan of (i) a
reportable event described in Section 4043(c)(5) or (6) of ERISA or (ii) any other reportable event
described in Section 4043(c) of ERISA other than a reportable event not subject to the provision
for 30-day notice to the Pension Benefit Guaranty Corporation pursuant to a waiver by such
corporation under Section 4043(a) or 4043(b)(4) of ERISA, or (b) the withdrawal of any ERISA
Affiliate from an ERISA Plan during a plan year in which it was a “substantial employer” as defined
in Section 4001(a)(2) of ERISA, or (c) the filing of a notice of intent to terminate any ERISA Plan
or the treatment of any ERISA Plan amendment as a termination under
Section 4041(c) of ERISA, or
(d) the institution of proceedings to terminate any ERISA Plan by the Pension Benefit Guaranty
Corporation under Section 4042 of ERISA, or (e) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any ERISA Plan.
“Total
Modified NPV10” means the sum of the Modified NPV10’s for all Proved Developed
Producing Reserves, Proved Developed Non-Producing Reserves and Proved Undeveloped Reserves as
determined by Administrative Agent from the Engineering Report most recently prepared as of such
time.
“Transaction Documents” means the Note Documents and the Acquisition Documents.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.
“Unused Commitment Amount” means an amount equal to the remainder of (a) the
Commitment amount, minus (b) the Aggregate Advance Amount.
“Warrant” means the Common Unit Purchase Warrant dated of even date herewith from Parent
issued to Warrant Owner.
“Warrant Owner” means TCW Energy Fund X-NL, L.P., a California limited partnership, together
with its successors and assigns under the Warrant.
[Note Purchase Agreement]
20
“Working Capital” means ECO’s Consolidated current assets minus ECO’s Consolidated
current liabilities. For purposes of this definition, “Consolidated current assets” and
“Consolidated current liabilities” shall be determined in accordance with GAAP, except that:
(a) current assets will be calculated without including inventory and without including any
accounts receivable or other Indebtedness owed to ECO or its Subsidiaries by their Affiliates;
(b) “Consolidated current assets” and “Consolidated current liabilities” will be calculated
without including any amounts resulting from the application of FASB Statement 133;
(c) accounts receivable more than 90 days delinquent will be deleted; and
(d) so long as no Event of Default or Default has occurred, current liabilities will be
calculated without including any payments of current maturities of principal on the Notes.
Section 1.2.
Exhibits and Schedules; Additional Definitions. All Exhibits and
Schedules attached to this Agreement are a part hereof for all purposes. Reference is hereby made
to the Security Schedule for the meaning of certain terms defined therein and used but not defined
herein, which definitions are incorporated herein by reference.
Section 1.3.
Amendment of Defined Instruments. Unless the context otherwise
requires or unless otherwise provided herein the terms defined in this Agreement which refer to a
particular agreement, instrument or document also refer to and include all renewals, extensions,
modifications, amendments and restatements of such agreement, instrument or document, provided that
nothing contained in this section shall be construed to authorize any such renewal, extension,
modification, amendment or restatement.
Section 1.4.
References and Titles. All references in this Agreement to Exhibits,
Schedules, articles, sections, subsections and other subdivisions refer to the Exhibits, Schedules,
articles, sections, subsections and other subdivisions of this Agreement unless expressly provided
otherwise. Exhibits and Schedules to any Note Document shall be deemed incorporated by reference in
such Note Document. References to any document, instrument, or agreement (a) shall include all
exhibits, schedules, and other attachments thereto, and (b) shall include all documents,
instruments, or agreements issued or executed in replacement thereof. Titles appearing at the
beginning of any subdivisions are for convenience only and do not constitute any part of such
subdivisions and shall be disregarded in construing the language contained in such subdivisions.
The words “this Agreement”, “this instrument”,
“herein”, “hereof”, “hereby”, “hereunder” and words
of similar import refer to this Agreement as a whole and not to any particular subdivision unless
expressly so limited. The phrases “this section” and “this subsection” and similar phrases refer
only to the sections or subsections hereof in which such phrases occur. The word “or” is not
exclusive, and the word “including” (in its various forms) means “including without limitation”.
Pronouns in masculine, feminine and neuter genders shall be construed to include any other gender,
and words in the singular form shall be construed to include the plural and vice versa, unless the
context otherwise requires. Accounting terms have the meanings assigned to them by GAAP, as applied
by the accounting entity to which they refer. References to “days” shall mean calendar days, unless
the term “Business
Day” is used. Unless otherwise specified, references herein to any particular Person also refer to
its successors and permitted assigns.
[Note Purchase Agreement]
21
Section 1.5.
Calculations and Determinations. All calculations under the Note
Documents of interest chargeable with respect to Loans and of fees shall be made on the basis of
actual days elapsed (including the first day but excluding the last) and a year of 360 days. Each
determination by a Holder Party of amounts to be paid under Article III or any other matters which
are to be determined hereunder by a Holder Party shall, in the absence of manifest error, be
conclusive and binding. Unless otherwise expressly provided herein or unless Required Holders
otherwise consent all financial statements and reports furnished to any Holder Party hereunder
shall be prepared and all financial computations and determinations pursuant hereto shall be made
in accordance with GAAP.
Section 1.6.
Joint Preparation; Construction of Indemnities and Releases. This
Agreement and the other Note Documents have been reviewed and negotiated by sophisticated parties
with access to legal counsel and no rule of construction shall apply hereto or thereto which would
require or allow any Note Document to be construed against any party because of its role in
drafting such Note Document. All indemnification and release provisions of this Agreement shall be
construed broadly (and not narrowly) in favor of the Persons receiving indemnification or being
released.
(a) Subject to the terms and conditions hereof, on the Closing Date Company shall issue to
Holders, and each Holder shall purchase from Company (so long as all conditions precedent required
hereby shall have then been satisfied), a Note or Notes in an aggregate principal amount equal to
the such Holder’s Percentage Share of the Commitment on the Closing Date at which time Holders
shall make an advance on the Notes in accordance with their respective Percentage Shares in the
aggregate amount of $5,200,000. As described in subsection (c) below, the Existing Obligations in
the principal amount of $16,500,000 together with accrued interest and other amounts due and owing
thereunder shall be deemed to be renewed and extended Indebtedness of Company, and Loans to Company
under the Notes, in accordance with Holders’ respective Percentage Shares. The Loans described in
this subsection (a), including such renewed and extended Existing Obligations, shall be considered
parts of a single Borrowing of $21,700,000.
(b) Subject to the terms and conditions hereof, Holders agree to make additional advances to
Company (so long as all conditions precedent required hereby shall have been satisfied) on the
Notes in accordance with their respective Percentage Shares from time to time during the
Availability Period; provided, the aggregate amount of all Borrowings from any Holder shall
not exceed the Commitment of that Holder. The aggregate amount of all Loans in any Borrowing must
be greater than or equal to $2,500,000 (or any smaller amount that may be approved from time to
time by Administrative Agent) or any higher integral multiple of $500,000 or must equal the amount
of the remaining aggregate Commitments.
[Note Purchase Agreement]
22
(c) This Agreement and the Notes amend and restate in their entirety (but do not novate
or extinguish) the Existing Note Purchase Agreement and promissory notes included in the Existing
Credit Documents, and from and after the date hereof, the terms and provisions of such loan
agreements and promissory notes shall be superseded by the terms and provisions hereof and of the
Notes, respectively. Company acknowledges and agrees that (i) the Existing Obligations, and all
accrued and unpaid interest thereon, shall be deemed to be renewed and extended Indebtedness of
Company outstanding under and governed by this Agreement and evidenced by the Notes, and (ii) all
Liens securing the Existing Obligations shall continue in full force and effect to secure the
Obligations and be evidenced and governed by the Security Documents. On the Quarterly Payment Date
of September 27, 2007, Existing Borrower failed to pay accrued interest in respect of the Loans in
the aggregate amount of $590,868.06, and Company hereby agrees to pay to Administrative Agent for
the account of the Holders $250,000 of such interest on the date hereof and the remaining balance
on or before November 21, 2007.
Section 2.2.
The Notes. The obligation of Company to repay to each Holder the
aggregate amount of all Loans made by such Holder, together with interest accruing in connection
therewith, shall be evidenced by a single Note made by Company payable to the order of such Holder
in the form of Exhibit A with appropriate insertions. The amount of principal owing on any Holder’s
Note at any given time shall be the aggregate amount of all Loans theretofore made by such Holder
minus all payments of principal theretofore received by such Holder on such Note. Interest on each
Note shall accrue and be due and payable as provided herein. Each Note shall be due and payable as
provided herein, and shall be due and payable in full on the Maturity Date. Company may not borrow,
repay, and reborrow hereunder or under the Notes.
Section 2.3.
Requests for New Loans. Company must give to Administrative Agent
written or electronic notice (or telephonic notice promptly confirmed in writing) of any requested
Borrowing of new Loans to be advanced by Holders. Each such notice constitutes a
“Borrowing
Notice” hereunder and must:
(a) specify the aggregate amount of any such Borrowing of new Loans and the date on which such
Loans are to be advanced; and
(b) be received by Administrative Agent not later than 10:00 a.m.,
New York,
New York time, on
the tenth (10
th) Business Day preceding the day on which any such Loans are to be made.
Each such written request or confirmation must be made in the form and substance of the
“Borrowing Notice” attached hereto as Exhibit B, duly completed. Each such telephonic request shall
be deemed a representation, warranty, acknowledgment and agreement by Company as to the matters
which are required to be set out in such written confirmation. Upon receipt of any such Borrowing
Notice, Administrative Agent shall give each Holder prompt notice of the terms thereof. If all
conditions precedent to such new Loans have been met, each Holder will on the date requested
promptly remit to Administrative Agent at Administrative Agent’s office in Los Angeles, California
the amount of such Holder’s new Loan in immediately available funds, and upon receipt of such
funds, unless to its actual knowledge any conditions precedent to such Loans have been neither met
nor waived as provided herein, Administrative Agent shall
promptly make such Loans available to Company. The failure of any Holder to make any new Loan to be
made by it hereunder shall not relieve any other Holder of its obligation hereunder, if any, to
make its new Loan, but no Holder shall be responsible for the failure of any other Holder to make
any new Loan to be made by such other Holder.
[Note Purchase Agreement]
23
Section 2.4. [Reserved].
Section 2.5.
Use of Proceeds. Company will use the proceeds of the Loans made on
the Closing Date: (a) up to $800,000 to consummate the Acquisition, (b) to make a loan to GO in the
amount of $2,200,000 pursuant to the GO Note, (c) up to $250,000 to pay accrued and unpaid interest
in respect of the Existing Notes, (d) to pay the $1,950,000 Amendment and Reconveyance Fee
described in Section 12.16, and (e) to pay closing expenses, costs and fees. The proceeds of the
Loans made after the Closing Date shall be applied by Company to implement the Approved Plan of
Development and to make other expenditures from time to time approved by Required Holders. In no
event shall the funds from any Loan be used directly or indirectly by any Person (x) to fund Excess
Drilling & Completion Costs, (y) for personal, family, household or agricultural purposes, or (z)
for the purpose, whether immediate, incidental or ultimate, of purchasing, acquiring or carrying
any “margin stock” (as such term is defined in Regulation U promulgated by the Board of Governors
of the Federal Reserve System) or to extend credit to others directly or indirectly for the purpose
of purchasing or carrying any such margin stock.
(b) Default Rate. If an Event of Default shall have occurred and be continuing under
Section 9.1(a), (b), (k)(i), (k)(ii), or
(k)(iii), all outstanding Loans shall bear interest at the
Default Rate. In addition, if an Event of Default shall have occurred and be continuing (other than
under Section 9.1(a), (b), (k)(i), (k)(ii), or (k)(iii)), Required Holders may, by notice to
Company, elect to have the outstanding Loans bear interest at the Default Rate, and upon the giving
of such notice, such Loans shall bear interest at the Default Rate until the earlier of (i) the
first date thereafter upon which there shall be no Event of Default continuing and (ii) the date
upon which Required Holders shall have rescinded such notice.
[Note Purchase Agreement]
24
(i) Company shall establish and maintain at its expense the Collateral
Account pursuant to the Collateral Account Agreement.
(ii) Company shall deposit or cause to be deposited into the Collateral Account
all Gross Cash Revenues from and after the Closing Date through the Maturity Date or, if
later, the date when all Obligations are paid in full. In addition, Company shall deposit
all funds into the Collateral Account from the Borrowing on the Closing Date that are not
applied under clauses (a) or (c) of the first sentence of Section 2.5 until such funds may
be applied to the development of Oil and Gas Properties comprising part of the APOD pursuant
to clause (b) of such sentence.
(iii) Except as provided in clause (v) below, all amounts in the Collateral Account
shall be applied to the following purposes in the following order or priority:
(A) Direct Taxes and Royalties;
(B) ANCF XXX and ANCF Transportation Costs;
(C) Fees and expenses under the Note Documents;
(D) Accrued and unpaid interest on the Notes and accrued unpaid commitment fees under Section 2.6(c);
(E) ANCF Overhead Costs;
(F) ANCF Capital Expenditures;
(G) Payments of principal on the Notes as required hereunder; and
(H) Permitted ANCF Distributions.
(iv) Prior to its receipt of a Notice of Exclusive Control (defined below),
Company may instruct the administrator of the Collateral Account to transfer or disburse
amounts from it to Company’s operating account from time to time for use in the ordinary
course of its business, subject to the terms and provisions of this Agreement, including the
priority of payment provisions specified in subsection (a)(iii) above. Administrative Agent
may at any time determine to exercise exclusive dominion and control over the Collateral
Account, and, upon receipt of notice from Administrative Agent of such determination (a
“Notice of Exclusive Control”), Company shall cease giving the instructions
described in the preceding sentence to the administrator of the
Collateral Account. During the time when a Notice of Exclusive Control is in effect,
Administrative Agent shall, subject to the provisions of subsection (a)(v) below, transfer
or disburse amounts from the Collateral Account to Company’s operating account (or, in
Administrative Agent’s discretion, directly to the Persons entitled to receive payment of
such amounts) from time to time for use in the ordinary course of Company’s business,
subject to the terms and provisions of this Agreement, including the priority of payment
provisions specified in subsection (a)(iii) above.
[Note Purchase Agreement]
25
(v) After the occurrence of an Event of Default under any Note Document or
Company’s failure to comply with the terms of this Section 2.7, Administrative Agent may, at
its option, from time to time apply all sums in the Collateral Account to the reduction of
outstanding principal, interest and other sums owed by Company on, the Notes or other Note
Documents.
(vi) Upon the satisfaction in full of all amounts owed by Company under the Note
Obligation Documents, Administrative Agent shall have all amounts remaining in the
Collateral Account disbursed to Company.
(i) It has granted and assigned to Administrative Agent a first priority,
perfected security interest in the Collateral Account, all funds therein and all proceeds
thereof pursuant to the Collateral Account Agreement; and
(ii) Company shall not be permitted to withdraw, transfer or disburse any
funds from the Collateral Account except in accordance with the terms hereof, the
Collateral Account Agreement and each other Note Document.
[Note Purchase Agreement]
26
(a) On each Quarterly Payment Date beginning with December 29,2008 and on each Quarterly
Payment Date thereafter, to and including the Quarterly Payment Date immediately preceding the
Maturity Date, Company shall make a principal payment in respect of the Notes in an aggregate
amount equal to the greater of (i) (x) the Dedication Rate multiplied by the Adjusted Net Cash Flow
for the ANCF Quarter applicable thereto, minus (y) the Permitted ANCF Distribution, if any,
permitted to be made by ECO on such Quarterly Payment Date, and (ii) the Minimum Scheduled
Quarterly Principal Payment. If any principal or interest amount payable under the Notes remains
outstanding at the Maturity Date, such amount will be paid in full by Company to the Holders in
immediately available funds on the Maturity Date.
(b) If the Required Holders shall, in their sole and absolute discretion, approve the sale of
any Collateral requested by a Restricted Person, Company shall make a payment in respect of the
Notes in an aggregate amount equal to the sales proceeds received by such Restricted Person net
only of reasonable out-of-pocket costs of such sale paid to non-Affiliates of Company.
(c) Company has requested a Loan from Holders in order to finance the payment of the Amendment
and Reconveyance Fee, as defined and described in Section 12.16, and the interest payment described
in Section 2.5 in the aggregate principal amount of $2,250,000 (the “Demand Loan”). At any
time and from time to time during the period commencing on May 19, 2008 through and including
November 19, 2009 (the “Demand Period”), Administrative Agent may, in the exercise of its
sole discretion, demand in writing that Company repay all or any portion of the outstanding
principal amount of the Demand Loan, together with all interest then accrued and unpaid on the
principal so prepaid (a “Demand Notice”). The principal amount of the Demand Loan to be
prepaid shall mature and become due and payable on the date fixed for such prepayment (which shall
be a Business Day) in the Demand Notice, together with interest on such principal amount accrued to
such date; provided that such date fixed for prepayment shall not be earlier than ninety (90) days
after the delivery of such Demand Notice.
(d) Company hereby acknowledges that Parent has granted Holders the right to exchange all or
any portion of the Loans evidenced by the Notes for Equity of Parent, upon the terms and as
provided in the Warrant. Upon giving effect to any such exchange, the outstanding principal amount
of the Loans shall be reduced to the extent of any such exchange, and, upon the written request of
Company, Administrative Agent will confirm the outstanding principal balance of the Loans after
giving effect to any such exchange.
(e) In the event that Company receives any payments of principal in respect of the GO Note (a
“GO Principal Payment”), it shall immediately make a principal payment in respect of the
Notes in an aggregate amount equal to such GO Principal Payment.
[Note Purchase Agreement]
27
(a) Company may, upon not less than thirty and not more than forty-five days’ notice to
Administrative Agent in the form of a Prepayment Notice, prepay on any Quarterly Payment Date all
or any part of the Notes, without premium or penalty, at 100% of the principal amount so prepaid,
provided that any partial payment on the Notes must not be less than $2,500,000 in the aggregate
for all Notes then outstanding. Each prepayment of principal under this section shall be
accompanied by all interest then accrued and unpaid on the principal so prepaid. In the case of
each partial prepayment of the Notes, the principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable,
to the respective unpaid principal amounts thereof not theretofore called for prepayment.
(b) In the case of each prepayment of Notes pursuant to this Section 2.9, the principal amount
of each Note to be prepaid shall mature and become due and payable on the Quarterly Payment Date
fixed for such prepayment, together with interest on such principal amount accrued to such date.
From and after such date, unless Company shall fail to pay such principal amount when so due and
payable, together with the interest, as aforesaid, interest on such principal amount shall cease to
accrue. Any Note paid or prepaid in full shall be surrendered to Company and cancelled and shall
not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.
(c) Any principal prepaid pursuant to this Section 2.9 shall be in addition to, and not in
lieu of, all payments otherwise required to be paid under the Note Documents at the time of such
prepayment. Any such prepayments hereof shall be applied first, to accrued but unpaid interest on
the Notes, and second, to outstanding principal on the Notes until paid in full. No prepayment on
the Notes shall, until the Notes have been paid in full, have the effect of reducing the mandatory
prepayments required under Section 2.8.
Section 2.10.
Financing Arrangements. Regardless of whether the Loans have been paid
or prepaid in full, prior to the expiration of the Availability Period neither Company nor any
Affiliate of Company or any equity holder of Company shall seek or obtain any financing to acquire
any Oil and Gas Properties in the Project Area or fund any development of Oil and Gas Properties in
the Project Area from any source other than TCW or an Affiliate of TCW.
Section 3.1.
General Procedures. Company will make each payment which it owes
under the Note Documents to Administrative Agent for the account of the Person to whom such payment
is owed, in lawful money of the United States of America, without set-off, deduction or
counterclaim, and in immediately available funds. Each such payment must be received by
Administrative Agent not later than 10:00 a.m.,
New York,
New York time, on the date such payment
becomes due and payable. Any payment received by Administrative Agent after such time will be
deemed to have been made on the next following Business Day. Should any such payment become due and
payable on a day other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day, and, in the case of a payment of principal or past due interest,
interest shall accrue and be payable thereon for the period of such extension as provided in the
Note Document under which such payment is due.
[Note Purchase Agreement]
28
Each payment under a Note Document shall be due and
payable at the place set forth for Administrative Agent
on the Holders Schedule. When Administrative Agent collects or receives money on account of the
Obligations, Administrative Agent shall distribute all money so collected or received, and each
Holder Party shall apply all such money so distributed, as follows:
(a) first, for the payment of all Obligations which are then due (and if such money is
insufficient to pay all such Obligations, first to any reimbursements due Administrative Agent
under Section 7.9 or 12.4 and then to the partial payment of all other Obligations then due in
proportion to the amounts thereof, or as Holder Parties shall otherwise agree);
(b) then for the prepayment of amounts owing under the Note Documents (other than principal of
the Loans) if so specified by Company;
(c) then for the prepayment of principal of the Loans, together with accrued and unpaid
interest on the principal so prepaid; and
(d) last, for the payment or prepayment of any other Obligations.
All payments applied to principal or interest on any Note shall be applied first to any interest
then due and payable, then to principal then due and payable, and last to any prepayment of
principal and interest in compliance with Section 2.6. All distributions of amounts described in
any of subsections (b), (c) or (d) above shall be made by Administrative Agent pro rata to each
Holder Party then owed Obligations described in such subsection in proportion to all amounts owed
to all Holder Parties which are described in such subsection; provided that if any Holder then owes
payments to Administrative Agent under Section 11.4, any amounts otherwise distributable under this
section to such Holder shall be deemed to belong to Administrative Agent to the extent of such
unpaid payments, and Administrative Agent shall apply such amounts to make such unpaid payments
rather than distribute such amounts to such Holder.
Section 3.2.
Payment of Interest. On each Quarterly Payment Date, Company shall
pay the interest then accrued on the Loans in full in immediately available funds.
Section 3.3.
Place of Payment. Payments becoming due and payable on the Notes and
under the other Note Documents shall be made in
New York,
New York at Administrative Agent’s
offices located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 or, at the election of
Administrative Agent, by wire transfer to a bank and account located in the State of
New York
specified by Administrative Agent. Administrative Agent may at any time, by notice to Company,
change the place of payment of any such payments so long as such place of payment shall be in the
State of New York.
Section 3.4.
Capital Reimbursement. If either (a) the introduction or
implementation after the date hereof of or the compliance with or any change after the date hereof
in or in the interpretation of any Law regarding capital adequacy, or (b) the introduction or
implementation after the date hereof of or the compliance with any request, directive or guideline
issued after the date hereof from any central bank or other Governmental Authority (whether or not
having the force of Law) regarding capital requirements has or would have the effect of reducing
the rate of return on any Holder Party’s capital, or on the capital of any corporation controlling
such Holder Party, as a consequence of the Loans made by such Holder Party, to a level below that
which such Holder Party or such corporation could have achieved but for such change (taking into
consideration such Holder Party’s policies and the policies of any such corporation with respect to
capital adequacy), then from time to time Company will pay to Administrative Agent for the benefit
of such Holder Party, within 3 Business Days of demand therefore by such Holder Party, such
additional amount or amounts which such Holder Party shall determine to be appropriate to
compensate such Holder Party for such reduction.
[Note Purchase Agreement]
29
(a) Company will indemnify each Holder Party against and reimburse each Holder Party for all
present and future income, stamp and other taxes, levies, costs and charges whatsoever imposed,
assessed, levied or collected on or in respect of this Agreement or any Loans (whether or not
legally or correctly imposed, assessed, levied or collected), excluding, however, (i) taxes imposed
on or measured by its overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which it is
organized or otherwise resides for tax purposes or maintains the office, branch, or agency through
which it administers this Agreement, (ii) with respect to each Holder Party, taxes imposed by
reason of any present or former connection between such Holder Party and the jurisdiction imposing
such taxes, other than solely as a result of this Agreement or any Note or any transaction
contemplated hereby, and (iii) any United States withholding tax imposed on any payment by Company
pursuant to this Agreement or under any Loans, but not excluding any portion of such tax that
exceeds the United States withholding tax which would have been imposed on such a payment to such
Holder Party under the laws and treaties in effect when such Holder Party first becomes a party to
this Agreement (all such non-excluded taxes, levies, costs and charges being collectively called
“Reimbursable Taxes”). Such indemnification shall be on an after-tax basis and paid within
3 Business Days after a Holder Party makes demand therefor.
(b) All payments on account of the principal of, and interest on, each Holder Party’s Loans
and Note, and all other amounts payable by Company to any Holder Party hereunder, shall be made in
full without set-off or counterclaim and shall be made free and clear of and without deductions or
withholdings of any nature by reason of any Reimbursable Taxes, all of which will be for the
account of Company. In the event of Company being compelled by Law to make any such deduction or
withholding from any payment to any Holder Party, Company shall pay on the due date of such
payment, by way of additional interest, such additional amounts as are needed to cause the amount
receivable by such Holder Party after such deduction or withholding to equal the amount which would
have been receivable in the absence of such deduction or withholding. If Company should make any
deduction or withholding as aforesaid, Company shall within 60 days thereafter forward to such
Holder Party an official receipt or other official document evidencing payment of such deduction or
withholding.
(c) Notwithstanding the foregoing provisions of this section, Company shall be entitled, to
the extent it is required to do so by Law, to deduct or withhold (and not to make any
indemnification or reimbursement for) income or other similar taxes imposed by the United States of
America from interest, fees or other amounts payable hereunder for the account of any Holder Party,
other than a Holder Party (i) who is a U.S. person for Federal income tax purposes or (ii) who has
the Prescribed Forms on file with Administrative Agent (with copies provided to Company) for the
applicable year to the extent deduction or withholding of such taxes is not
required as a result of the filing of such Prescribed Forms, provided that if Company shall so
deduct or withhold any such taxes, it shall provide a statement to Administrative Agent and such
Holder Party, setting forth the amount of such taxes so deducted or withheld, the applicable rate
and any other information or documentation which such Holder Party may reasonably request for
assisting such Holder Party to obtain any allowable credits or deductions for the taxes so deducted
or withheld in the jurisdiction or jurisdictions in which such Holder Party is subject to tax.
[Note Purchase Agreement]
30
As used in this section, “Prescribed Forms” means such duly executed forms or statements, and in such
number of copies, which may, from time to time, be prescribed by Law and which, pursuant to
applicable provisions of (x) an income tax treaty between the United States and the country of
residence of the Holder Party providing the forms or statements, (y) the Internal Revenue Code, or
(z) any applicable rules or regulations thereunder, permit Company to make payments hereunder for
the account of such Holder Party free of such deduction or withholding of income or similar taxes.
Section 4.1.
Closing Date Conditions. The obligation of any Holder to make a Loan
on the Closing Date is subject to the satisfaction, or waiver in accordance with Section 12.1, of
the following conditions on or before the Closing Date:
(i) This Agreement and any other documents that Holders are to execute in
connection herewith.
(ii) Each Note.
(iii) each Security Document listed in the Security Schedule.
(iv) the Management Services Agreement.
(v) Certain certificates of Company including:
(A) An “Omnibus Certificate” of the Secretary and of the President (or
equivalent representatives) of Company, which shall contain the names and signatures
of the officers or representatives authorized to execute Note Documents and which
shall certify to the truth, correctness and completeness of the following exhibits
attached thereto: (1) a copy of resolutions duly adopted by the Board of Directors
(or other governing board) and in full force and effect at the time this Agreement
is entered into, authorizing the execution of this Agreement and the other Note
Documents delivered or to be delivered in connection herewith and the consummation
of the transactions contemplated herein and therein, (2) a copy of the charter
documents and all amendments thereto, certified by the appropriate official of the
state of organization, and (3) a copy of any bylaws (or other equivalent documents);
and
[Note Purchase Agreement]
31
(B) A “Compliance Certificate” of the Chairman of the Board or President
(or equivalent representative) of Company, of even date with such Loan, in which
such officer certifies to the satisfaction of the conditions set out in Section 4.2.
(vi) Certificate (or certificates) of the due formation, valid existence and good
standing of Company in its state of organization, issued by the appropriate authorities of
such jurisdiction, and certificates of Company’s good standing and due qualification to do
business, issued by appropriate officials in any states in which Company owns property
subject to Security Documents.
(vii) Documents similar to those specified in subsections (a)(iv)(A) and (a)(v) of
this section with respect to each Guarantor.
(viii) Certificates or binders evidencing Restricted Persons’ insurance in effect on
the date hereof.
(ix) Title opinions and other title information concerning the Project Area in
form and substance satisfactory to Administrative Agent.
(x) A copy of each Acquisition Document, duly executed and delivered by each party
thereto.
(xi) A solvency certificate of Company dated the Closing Date demonstrating that
after giving effect to the consummation of the Closing Date Transactions and the Transaction
Documents such Person is solvent.
[Note Purchase Agreement]
32
(1) Due Diligence. Administrative Agent and Holders shall have completed
satisfactory due diligence review of the assets, liabilities, business, operations and condition
(financial or otherwise) of Company, including a review of its relevant Oil and Gas Properties and
all legal, financial, accounting, governmental, environmental, tax and regulatory matters, and
fiduciary aspects relevant to the financing under the Note Purchase Agreement.
Section 4.2.
Additional Conditions Precedent. No Holder has any obligation to make
any Loan (including its first) unless the following conditions precedent have been satisfied:
(a) All representations and warranties made by any Person in any Note Document shall be
true in all respects on and as of the date of such Loan as if such representations and warranties
had been made as of the date of such Loan, except to the extent that such
representation or warranty was made as of a specific date or updated, modified or supplemented as
of a subsequent date with the consent of Required Holders and Administrative Agent.
[Note Purchase Agreement]
33
(b) All representations and warranties made by any party to the Acquisition Documents
shall be true in all respects as of the Closing Date.
(c) No Default shall exist at the date of such Loan.
(d) No Material Adverse Change shall have occurred to, and no event or circumstance shall have
occurred that could reasonably be expected to cause a Material Adverse Change to, Company’s
Consolidated financial condition or businesses since the Closing Date.
(e) Each Restricted Person shall have performed and complied with all agreements and
conditions required in the Note Documents to be performed or complied with by it on or prior to the
date of such Loan.
(f) The making of such Loan shall not be prohibited by any Law and shall not subject any
Holder to any penalty or other onerous condition under or pursuant to any such Law.
(g) Administrative Agent shall have received all documents and instruments which
Administrative Agent has then requested, in addition to those described in Section 4.1 (including
opinions of legal counsel for Restricted Persons and Administrative Agent; corporate documents and
records; documents evidencing governmental authorizations, consents, approvals, licenses and
exemptions; and certificates of public officials and of officers and representatives of Company and
other Persons), as to (i) the accuracy and validity of or compliance with all representations,
warranties and covenants made by any Restricted Person in this Agreement and the other Note
Documents, (ii) the satisfaction of all conditions contained herein or therein, and (iii) all other
matters pertaining hereto and thereto. All such additional documents and instruments shall be
satisfactory to Administrative Agent in form, substance and date.
(h) Company shall have provided Administrative Agent with documentation and cost
estimates demonstrating that the proceeds of such Loan will be applied by Company to implement the
Approved Plan of Development as provided by the second sentence of Section 2.5, as requested by
Administrative Agent and in form satisfactory to Administrative Agent in its sole and absolute
discretion.
Section 4.3.
Conditions Precedent to Company’s Obligations. The obligations of
Company to issue the Notes under Section 2.1 of this Agreement are subject to the fulfillment on or
before the Closing Date of each of the following conditions, the waiver of which shall not be
effective against Holders if they do not consent thereto:
(a) All representations and warranties made by any Holder in Article VI shall be true in
all respects on and as of the date of such Loan as if such representations and warranties had been
made as of the date of such Loan, except to the extent that such representation or warranty was
made as of a specific date or updated, modified or supplemented as of a subsequent date with the
consent of Required Holders and Administrative Agent.
[Note Purchase Agreement]
34
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting
any Holder, or any Affiliate of Holder or threatened before any court, governmental agency or
arbitrator that purports to affect the legality, validity or enforceability of any Note Document
delivered on the Closing Date or the consummation of the transactions contemplated thereby.
To confirm each Holder’s understanding concerning Restricted Persons and Restricted Persons’
businesses, properties and obligations and to induce each Holder to enter into this Agreement and
to extend credit hereunder, Company represents and warrants to Administrative Agent and each Holder
that:
Section 5.1.
No Default. No Restricted Person is in default in the performance of
any of its covenants and agreements contained in any Transaction Document. No seller under the
Acquisition Documents is in default of any of its obligations to Company under any Acquisition
Document or in breach of any of its representations and warranties to Company thereunder. No event
has occurred and is continuing which constitutes a Default.
Section 5.2.
Organization and Good Standing. Each Restricted Person is duly
organized, validly existing and in good standing under the Laws of its jurisdiction of
organization, having all powers required to carry on its business and enter into and carry out the
transactions contemplated hereby. Each Restricted Person is duly qualified, in good standing, and
authorized to do business in all other jurisdictions within the United States wherein the character
of the properties owned or held by it or the nature of the business transacted by it makes such
qualification necessary. Each Restricted Person has taken all actions and procedures customarily
taken in order to enter, for the purpose of conducting business or owning property, each
jurisdiction outside the United States wherein the character of the properties owned or held by it
or the nature of the business transacted by it makes such actions and procedures desirable.
Section 5.3.
Authorization. Each Restricted Person has duly taken all action
necessary to authorize the execution and delivery by it of the Transaction Documents to which it is
a party and to authorize the consummation of the transactions contemplated thereby and the
performance of its obligations thereunder. Company is duly authorized to borrow funds hereunder.
Section 5.4.
No Conflicts or Consents. The execution and delivery by the various
Restricted Persons of the Transaction Documents to which each is a party, the performance by each
of its obligations under such Transaction Documents, and the consummation of the transactions
contemplated by the various Transaction Documents, do not and will not (a) conflict with any
provision of (i) any Law, (ii) the organizational documents of any Restricted Person, or (iii) any
material agreement, judgment, license, order or permit applicable to or binding upon any Restricted
Person, (b) result in the acceleration of any Indebtedness owed by any Restricted Person, or (c)
result in or require the creation of any Lien upon any assets or properties of any Restricted
Person except as expressly contemplated or permitted in the Transaction Documents. Except as
expressly contemplated in the Transaction Documents no permit, consent, approval, authorization or
order of, and no notice to or filing with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance by any Restricted Person of any Transaction
Document or to consummate any transactions contemplated by the
Transaction Documents. The Equity of MV Pipeline being pledged pursuant to the Security
Documents is not subject to any restriction on the transfer, pledge, or voting of such
Equity.
[Note Purchase Agreement]
35
Section 5.5.
Enforceable Obligations. This Agreement is, and the other Transaction
Documents when duly executed and delivered will be, legal, valid and binding obligations of each of
the Restricted Persons and each of their respective Affiliates which is a party hereto or thereto,
enforceable in accordance with their terms except as such enforcement may be limited by bankruptcy,
insolvency or similar Laws of general application relating to the enforcement of creditors’ rights.
Section 5.6.
Initial Pro Forma Financial Statements. Once delivered pursuant to
Section 7.23, the Initial Pro Forma Financial Statements will fairly present ECO’s Consolidated
financial position at the effective time of the Acquisition and the Consolidated results of its
operations and its Consolidated cash flows for the respective periods thereof.
Section 5.7.
Other Obligations and Restrictions. No Restricted Person has any
outstanding Liabilities of any kind (including contingent obligations, tax assessments, and unusual
forward or long-term commitments) which are, in the aggregate, material to Company or material with
respect to Company’s Consolidated financial condition and not shown in the most recently delivered
financial statements or disclosed in Section 5.7 of the Disclosure Schedule or which constitute
Indebtedness and are otherwise permitted under Section 8.1. Except as shown in the Initial Pro
Forma Financial Statements or disclosed in Section 5.7 of the Disclosure Schedule, no Restricted
Person is subject to or restricted by any franchise, contract, deed, charter restriction, or other
instrument or restriction which could reasonably be expected to cause a Material Adverse Change.
Except as listed in Section 5.7 of the Disclosure Schedule, no Restricted Person has any Material
Contracts (other than oil and gas leases, unit agreements, unit operating agreements, and joint
operating agreements that are specifically listed on the property descriptions attached to the
Mortgage).
Section 5.8.
Full Disclosure. No certificate, statement or other information
delivered herewith or heretofore to Administrative Agent by or on behalf of Company or any of its
Affiliates in connection with the negotiation of this Agreement or in connection with any
transaction contemplated hereby contains any untrue statement of a material fact or omits to state
any material fact known to Company or its Affiliates (other than industry-wide risks normally
associated with the types of businesses conducted by Restricted Persons) necessary to make the
statements contained herein or therein not misleading as of the date made or deemed made. No
Material Adverse Change has occurred since the date of the first Borrowing. There is no fact known
to Company or its Affiliates (other than industry-wide risks normally associated with the types of
businesses conducted by Restricted Persons) that has not been disclosed to Administrative Agent in
writing which could cause a Material Adverse Change. There are no statements or conclusions in any
Engineering Report which are based upon or include misleading information or fail to take into
account material information regarding the matters reported therein, it being understood that each
Engineering Report are necessarily based upon professional opinions, estimates and projections and
that Company does not warrant that such opinions, estimates and projections will ultimately prove
to have been accurate. Except for the Acquisition Documents and the GO Note, Company has no
Material Contracts.
[Note Purchase Agreement]
36
Section 5.9.
Litigation. Except as disclosed in the Initial Pro Forma Financial
Statements or in Section 5.9 of the Disclosure Schedule: (a) there are no actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or to the knowledge of any Restricted
Person threatened, against any Restricted Person or affecting any Collateral (including any which
challenge or otherwise pertain to any Restricted Person’s title to any Collateral) before any
Governmental Authority which could cause a Material Adverse Change, and (b) there are no
outstanding judgments, injunctions, writs, rulings or orders by any such Governmental Authority
against any Restricted Person or any Restricted Person’s stockholders, partners, members, directors
or officers or affecting any Collateral or any of its material assets or property which could cause
a Material Adverse Change.
Section 5.10.
Labor Disputes and Acts of God. Except as disclosed in Section 5.10 of
the Disclosure Schedule, neither the business nor the properties of any Restricted Person has been
affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance), which could cause a Material Adverse Change.
Section 5.11.
ERISA Plans and Liabilities. All currently existing ERISA Plans, if
any, are listed in Section 5.11 of the Disclosure Schedule. Except as disclosed in the Initial Pro
Forma Financial Statements or in Section 5.11 of the Disclosure Schedule, no Termination Event has
occurred with respect to any ERISA Plan and all ERISA Affiliates are in compliance with ERISA in
all material respects. No ERISA Affiliate is required to contribute to, or has any other absolute
or contingent liability in respect of, any “multiemployer plan” as defined in Section 4001 of
ERISA. Except as set forth in Section 5.11 of the Disclosure Schedule: (a) no “accumulated funding
deficiency” (as defined in Section 412(a) of the Internal Revenue Code) exists with respect to any
ERISA Plan, whether or not waived by the Secretary of the Treasury or his delegate, and (b) the
current value of each ERISA Plan’s benefits does not exceed the current value of such ERISA Plan’s
assets available for the payment of such benefits by more than $500,000.
Section 5.12.
Environmental and Other Laws. Except as disclosed in Section 5.12 of
the Disclosure Schedule: (a) Restricted Persons are conducting their businesses in material
compliance with all applicable Laws, including Environmental Laws, and have and are in compliance
with all licenses and permits required under any such Laws; (b) none of the operations or
properties of any Restricted Person is the subject of federal, state or local investigation
evaluating whether any material remedial action is needed to respond to a release of any Hazardous
Materials into the environment or to the improper storage or disposal (including storage or
disposal at offsite locations) of any Hazardous Materials; (c) no Restricted Person (and to the
best knowledge of Company, no other Person) has filed any notice under any Law indicating that any
Restricted Person is responsible for the improper release into the environment, or the improper
storage or disposal, of any material amount of any Hazardous Materials or that any Hazardous
Materials have been improperly released, or are improperly stored or disposed of, upon any
Collateral; (d) no Restricted Person has transported or arranged for the transportation of any
Hazardous Material to any location which is (i) listed on the National Priorities List under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, listed
for possible inclusion on such National Priorities List by the Environmental Protection Agency in
its Comprehensive Environmental Response,
Compensation and Liability Information System List, or listed on any similar state list or (ii) the
subject of federal, state or local enforcement actions or other investigations which may lead to
claims against any Restricted Person for clean-up costs, remedial work, damages to natural
resources or for personal injury claims (whether under Environmental Laws or otherwise); and (e) no
Restricted Person otherwise has any known material contingent liability under any Environmental
Laws or in connection with the release into the environment, or the storage or disposal, of any
Hazardous Materials. Each Restricted Person undertook, at the time of its acquisition of each of
its material properties, all appropriate inquiry into the previous ownership and uses of such
properties and any potential environmental liabilities associated therewith.
[Note Purchase Agreement]
37
Section 5.13.
Insurance. The Insurance Schedule contains an accurate and complete
description of all material policies of property and casualty, liability, workmen’s compensation
and other forms of insurance owned or held by or on behalf of any Restricted Person. Such policies
constitute all policies of insurance required to be maintained under Section 7.8 hereof. All such
policies are in full force and effect, all premiums due with respect thereto have been paid, and no
notice of cancellation or termination in all material respects has been received with respect to
any such policy. Such policies are sufficient for compliance in all material respects with all
requirements of law and of all agreements to which any Restricted Person is a party; are valid,
outstanding and enforceable policies; provide adequate insurance coverage in at least such amounts
and against at least such risks (but including in any event public liability) as are usually
insured against in the same general area by companies engaged in the same or a similar business for
the assets and operations of the Restricted Persons; will remain in full force and effect through
the respective dates set forth in the Insurance Schedule without the payment of additional
premiums; and will not in any way be affected by, or terminate or lapse by reason of, the
transactions contemplated by this Agreement and the other Note Documents.
Section 5.14.
Names and Places of Business. No Restricted Person has, during the
preceding five years, had, been known by, or used any other trade or fictitious name, except as
disclosed in Section 5.14 of the Disclosure Schedule. Except as otherwise indicated in Section 5.14
of the Disclosure Schedule, the chief executive office and principal place of business of each
Restricted Person are (and for the preceding five years have been) located at the address of
Company set out in Section 12.3. Except as indicated in Section 5.14 of the Disclosure Schedule or
otherwise disclosed in writing to Administrative Agent, no Restricted Person has any other office
or place of business.
Section 5.15.
Subsidiaries. Company does not presently have any Subsidiary except
those listed in Section 5.14 of the Disclosure Schedule or disclosed to Administrative Agent in
writing. No Restricted Person has any equity investments in any other Person except those listed in
Section 5.14 of the Disclosure Schedule. Company owns, directly or indirectly, the equity interests
in each of its Subsidiaries which is indicated in Section 5.14 of the Disclosure Schedule or as
disclosed to Administrative Agent in writing.
Section 5.16.
Government Regulation. Neither Company nor any other Restricted Person
owing Obligations is (a) a “registered holding company”, or a “subsidiary company” of a “registered
holding company”, or an “affiliate” of a “registered holding company” within the meaning of the
Public Utility Holding Company Act of 1935, as amended, (b) an “investment company” or a company
“controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, or (c) subject to regulation under the Federal Power
Act, as amended, or any other Law which regulates the incurring by such Person of Indebtedness,
including Laws relating to common contract carriers or the sale of electricity, gas, steam, water
or other public utility services.
[Note Purchase Agreement]
38
Section 5.17.
Solvency. Upon giving effect to the issuance of the Notes, the
execution of the Transaction Documents by the parties thereto and the consummation of the
transactions contemplated hereby and thereby, Restricted Person will be solvent (as such term is
used in applicable bankruptcy, liquidation, receivership, insolvency or similar Laws), and the sum
of each Restricted Person’s absolute and contingent liabilities, including the Obligations or
guarantees thereof, shall not exceed the fair market value of such Restricted Person’s assets, and
(ii) each Restricted Person’s capital should be adequate for the businesses in which such
Restricted Person is engaged and intends to be engaged. No Restricted Person has incurred (whether
under the Note Documents or otherwise), nor does any Restricted Person intend to incur or believe
that it will incur, debts which will be beyond its ability to pay as such debts mature.
Section 5.18.
Title to Properties; Licenses. Each Restricted Person has good and
defensible title to, or valid leasehold interests in, all of the Collateral owned or leased by such
Restricted Person and all of its other material properties and assets necessary or used in the
ordinary conduct of its business, free and clear of all Liens, encumbrances, or adverse claims
other than Permitted Liens and of all impediments to the use of such properties and assets in such
Restricted Person’s business. Each Engineering Report at any time delivered pursuant to Section
7.2(i) correctly states the working interests and net revenue interests of the Restricted Persons
in the Proved Reserves that are the subject of such Engineering Report. Except for obligations to
contribute a proportionate share of the costs of defaulting co-owners, no Restricted Person is
obligated to bear any percentage share of the costs and expenses relating to the drilling,
development and production of such Proved Reserves in excess of such working interests, and
(subject to the Note Documents) each Restricted Person is entitled to receive percentage shares of
the revenues from the production of such Proved Reserves that are at least equal to such net
revenue interests. Each Restricted Person possesses all licenses, permits, franchises, patents,
copyrights, trademarks and trade names, and other intellectual property (or otherwise possesses the
right to use such intellectual property without violation of the rights of any other Person) that
are necessary to carry out its business as presently conducted and as presently proposed to be
conducted hereafter, and no Restricted Person is in violation in any material respect of the terms
under which it possesses such intellectual property or the right to use such intellectual property.
No Restricted Person has granted control over any Deposit Accounts to any Person, other than
Administrative Agent and the bank with which any Deposit Account is maintained. No Restricted
Person has any “securities accounts” as defined and described in the UCC.
Section 5.19.
Regulation U. None of Company, Parent, nor any of their Subsidiaries
are engaged in the business of extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Loans will be used for a purpose which violates Regulation U.
[Note Purchase Agreement]
39
Section 5.20.
Leases and Contracts; Performance of Obligations. The leases, deeds,
and other agreements comprising part of the Acquisition or forming a part of the Oil and Gas
Properties of the Restricted Persons to which Proved Reserves are attributed in each Engineering
Report are in full force and effect. To the best knowledge of Restricted Persons after due inquiry,
all rents, royalties and other payments due and payable under such leases, deeds, and other
agreements have been properly and timely paid other than to the extent such could not reasonably be
expected to cause the loss or forfeiture of any such Proved Reserves. No Restricted Person is in
default with respect to its obligations (and no Restricted Person is aware of any default by any
third party with respect to such third party’s obligations) under any such leases, deeds, and other
agreements, or under any Permitted Liens, or otherwise attendant to the ownership or operation of
any part of the Oil and Gas Properties, where such default could adversely affect the ownership or
operation of any Oil and Gas Properties to which any such Proved Reserves are attributed. No
Restricted Person is currently accounting for any royalties, or overriding royalties or other
payments out of production, on a basis (other than delivery in kind) less favorable to such
Restricted Person than proceeds received by such Restricted Person (calculated at the well) from
sale of production, and no Restricted Person has any liability (or alleged liability) to account
for the same on any such less favorable basis.
Section 5.21.
Marketing Arrangements. Except as set forth in Section 5.21 of the
Disclosure Schedule, no Oil and Gas Property is subject to any contractual or other arrangement (i)
whereby payment for production is or can be deferred for a substantial period after the month in
which such production is delivered (in the case of oil, not in excess of 60 days, and in the case
of gas, not in excess of 90 days) or (ii) whereby payments are made to a Restricted Person other
than by checks, drafts, wire transfers, or other similar writings, instruments or communications
for the immediate payment of money. Except for production sales contracts, processing agreements,
transportation agreements and other agreements relating to the marketing of production that are
listed in Section 5.21 of the Disclosure Schedule in connection with the Oil and Gas Properties to
which such contract or agreement relates: (i) no Oil and Gas Property of a Restricted Person is
subject to any contractual or other arrangement for the sale, processing or transportation of
production (or otherwise related to the marketing of production) which cannot be canceled by such
Restricted Person on 120 days’ (or less) notice and (ii) all contractual or other arrangements for
the sale, processing or transportation of production (or otherwise related to the marketing of
production) are bona fide arm’s length transactions made on the best terms reasonably available
with third parties not affiliated with Company. Each Restricted Person is presently receiving a
price for all production from (or attributable to) each Oil and Gas Property covered by a
production sales contract or marketing contract listed in Section 5.21 of the Disclosure Schedule
that is computed in accordance with the terms of such contract, and no Restricted Person is having
deliveries of production from such Oil and Gas Property curtailed substantially below such
property’s delivery capacity, except for curtailments caused (a) by an act or event of force
majeure not reasonably within the control of and not caused by the fault or negligence of a
Restricted Person and which by the exercise of reasonable diligence such Restricted Person is
unable to prevent or overcome, and (b) by routine maintenance requirements in the ordinary course
of business.
[Note Purchase Agreement]
40
Section 5.22.
Right to Receive Payment for Future Production. Except as set forth in
Section 5.22 of the Disclosure Schedule, no Restricted Person, nor to the best knowledge of
Restricted Persons after due inquiry any Restricted Person’s predecessors in title, has received
prepayments (including payments for gas not taken pursuant to “take or pay” or other similar
arrangements) for any oil, gas or other hydrocarbons produced or to be produced from any Oil and
Gas Properties after the date hereof. Except as set forth in Section 5.22 of the Disclosure
Schedule, no Oil and Gas Property is subject to any “take or pay”, gas imbalances or other similar
arrangement (i) which can be satisfied in whole or in part by the production or transportation of
gas from other properties or (ii) as a result of which production from any Oil and Gas Property may
be required to be delivered to one or more third parties without payment (or without full payment)
therefor as a result of payments made, or other actions taken, with respect to other properties.
Except as set forth in Section 5.22 of the Disclosure Schedule, there is no Oil and Gas Property
with respect to which any Restricted Person, or any Restricted Person’s predecessors in title, has,
prior to the date hereof, taken more (“overproduced”), or less (“underproduced”), gas from the
lands covered thereby (or pooled or unitized therewith) than its ownership interest in such Oil and
Gas Property would entitle it to take; and Section 5.22 of the Disclosure Schedule accurately
reflects, for each well or unit with respect to which such an imbalance is shown thereon to exist,
(i) whether such Restricted Person is overproduced or underproduced and (ii) the volumes (in cubic
feet or British thermal units) of such overproduction or underproduction and the effective date of
such information. No Oil and Gas Property is subject at the present time to any regulatory refund
obligation and, to the best of Restricted Person’s knowledge, no facts exist which might cause the
same to be imposed.
Section 5.23.
Operation of Oil and Gas Properties. The Oil and Gas Properties (and all
properties unitized therewith) are being (and, to the extent the same could adversely affect the
ownership or operation of the Oil and Gas Properties after the date hereof, have in the past been)
maintained, operated and developed in a good and workmanlike manner, in accordance with prudent
industry standards and in conformity with all applicable Laws and in conformity with all oil, gas
or other mineral leases and other contracts and agreements forming a part of the Oil and Gas
Property and in conformity with the Permitted Liens. No Oil and Gas Property is subject to having
allowable production after the date hereof reduced below the full and regular allowable (including
the maximum permissible tolerance) because of any overproduction (whether or not the same was
permissible at the time) prior to the date hereof and (ii) none of the xxxxx located on the Oil and
Gas Properties (or properties unitized therewith) are or will be deviated from the vertical more
than the maximum permitted by applicable laws, regulations, rules and orders, and such xxxxx are
bottomed under and producing from, with the well bores wholly within, the Oil and Gas Properties
(or, in the case of xxxxx located on properties unitized therewith, such unitized properties). Each
Restricted Person has all governmental licenses and permits necessary or appropriate to own and
operate its Oil and Gas Property, and no Restricted Person has received notice of any violations in
respect of any such licenses or permits.
Section 5.24.
Ad Valorem and Severance Taxes; Litigation. Each Restricted Person has
paid and discharged all ad valorem taxes assessed against its Oil and Gas Property or any part
thereof and all production, severance and other taxes assessed against, or measured by, the
production or the value, or proceeds, of the production therefrom. There are no suits, actions,
claims, investigations, inquiries, proceedings or demands pending (or, to any Restricted Person’s
knowledge, threatened) which might affect the Oil and Gas Property, including any which challenge
or otherwise pertain to any Restricted Person’s title to any Oil and Gas Property or rights to
produce and sell oil and gas therefrom.
[Note Purchase Agreement]
41
Section 5.25.
Acquisition. Company has concurrently herewith delivered to
Administrative Agent true, correct and complete copies of the Acquisition Documents, which
have been executed and delivered in the forms previously delivered to the Holders for their
review (in each case, as appropriately completed). Company has not waived or amended any term or
condition thereof. As of the Closing Date, each of the representations and warranties made by any
party in the Acquisition Documents is true and correct in all respects, except for any such
representation or warranty that expressly applies only to a specified earlier date, in which case
such representation or warranty shall have been true and correct in all respects as of such earlier
date; and neither Company nor any other party thereto has failed in any respect to perform any
obligation or covenant required by the Acquisition Documents to be performed or complied with by it
on or before the Closing Date. The Acquisition will have been consummated on or prior to the
Closing Date in compliance with the terms and conditions thereof and all conditions precedent to
such consummation will be fully satisfied.
Each of the Holders
hereby, represents, warrants and covenants to Company as follows:
Section 6.1.
Organization of Holders. Each of the Holders has been duly formed and is
validly existing as a corporation or other legal entity in good standing under the laws of its
jurisdiction of organization. Each of the Holders has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to consummate the transactions
contemplated hereby.
Section 6.2.
Authority of Holders. The execution and delivery by each of the Holders
of this Agreement, and the performance of its obligations hereunder, have been duly and validly
authorized by all necessary actions of such Holder. This Agreement and all other Closing Documents
executed by each of the Holders have been duly and validly executed and delivered by such Holder
and constitute the legal, valid and binding obligations of such Holder, enforceable against such
Holder, in accordance with their terms, except to the extent such enforceability (a) may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’
rights generally and (b) is subject to general principles of equity.
Section 6.3.
Compliance with Laws and Other Instruments. The consummation of the
transactions contemplated by this Agreement and the execution, delivery and performance of the
terms and provisions of the Closing Documents to which each of the Holders is a party will not (i)
contravene, result in any breach of, or constitute a default under, any charter or bylaws or other
organizational documents of such Holder, or any material agreement or instrument to which such
Holder is a party, (ii) conflict with or result in a breach of any of the terms, conditions or
provisions of any order of any court, arbitrator or Governmental Authority applicable to such
Holder, or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to such Holder.
Section 6.4.
Acquisition for Holder’s Account. Each of the Holders is acquiring and
will acquire the Notes for its own account, with no present intention of distributing or
reselling such Notes or any part thereof in violation of applicable securities laws.
[Note Purchase Agreement]
42
Section 6.5.
Notes Not Registered. Each of the Holders acknowledges that its Notes
have not been, and when issued will not be, registered under the Securities Act or the
securities
laws of any state in the United States or any other jurisdiction and may not be offered or sold by
such Holder unless subsequently registered under the Securities Act (if applicable to the
transaction) and any other securities laws or unless exemptions from the registration or other
requirements of the Securities Act and any other securities laws are available for the transaction.
Section 6.6.
Accredited Investor. Each of the Holders represents that it is an
“accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the
Securities Act, as presently in effect, or a Qualified Institutional Buyer (as defined in Rule 144A
promulgated under the Securities Act, as presently in effect).
To conform with the terms and conditions under which each Holder is willing to have credit
outstanding to Company, and to induce each Holder to enter into this Agreement and extend credit
hereunder, Company warrants, covenants and agrees that until the full and final payment of the
Obligations and the termination of this Agreement, unless Required Holders have previously agreed
otherwise:
Section 7.1.
Payment and Performance. Each Restricted Person will pay all amounts due
under the Note Documents, to which it is a party, in accordance with the terms thereof and will
observe, perform and comply with every covenant, term and condition set forth in the Note Documents
to which it is a party. Company will cause each of its Affiliates to observe, perform and comply
with every such term, covenant and condition in any Note Document.
Section 7.2.
Books, Financial Statements and Reports. Each Restricted Person will at
all times maintain full and accurate books of account and records. ECO and Company will maintain
and will cause their Subsidiaries to maintain a standard system of accounting, will maintain its
Fiscal Year, and will furnish the following statements and reports to each Holder Party at
Company’s expense:
(a) As soon as available, and in any event within ninety (90) days after the end of each
Fiscal Year, complete Consolidated and consolidating financial statements of ECO together with all
notes thereto, prepared in reasonable detail in accordance with GAAP, together with an unqualified
opinion, based on an audit using generally accepted auditing standards, by an independent certified
public accounting firm selected by ECO and acceptable to Administrative Agent, stating that such
Consolidated financial statements have been so prepared. These financial statements shall contain a
Consolidated and consolidating balance sheet as of the end of such Fiscal Year and Consolidated and
consolidating statements of earnings, of cash flows, and of changes in owners’ equity for such
Fiscal Year, each setting forth in comparative form the corresponding figures for the preceding
Fiscal Year. In addition, concurrently with the delivery of such financial statements, Company will
furnish a report signed by such accountants (i) containing calculations showing compliance (or
non-compliance) at the end of such Fiscal Year with the requirements of Sections 8.11 and 8.12, and
(ii) further stating that in making their examination and reporting on the Consolidated financial
statements described above they did not conclude that any Default existed at the end of such Fiscal
Year or at the time of their report, or, if they did conclude that a Default existed, specifying
its nature and period of existence.
[Note Purchase Agreement]
43
(b) As soon as available, and in any event within forty-five (45) days after the end of each
Fiscal Quarter, ECO’s Consolidated and consolidating balance sheet as of the end of such Fiscal
Quarter and Consolidated and consolidating statements of ECO’s earnings and cash flows for the
period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, all in
reasonable detail and prepared in accordance with GAAP, subject to changes resulting from normal
year-end adjustments. In addition Company will, together with each such set of financial statements
and each set of financial statements furnished under subsection (a) of this section, furnish a
certificate in the form of Exhibit D signed by the chief financial officer of ECO stating that such
financial statements are accurate and complete (subject to normal year-end adjustments), stating
that he has reviewed the Note Documents, containing calculations showing compliance (or
non-compliance) at the end of such Fiscal Quarter with the requirements of Sections 8.11 and 8.12
and stating that no Default exists at the end of such Fiscal Quarter or at the time of such
certificate or specifying the nature and period of existence of any such Default.
(c) Promptly upon their becoming available, copies of all financial statements, reports,
notices and proxy statements sent by Parent or any Restricted Person to its equity holders and all
registration statements, periodic reports and other statements and schedules filed by Parent or any
Restricted Person with any securities exchange, the Securities and Exchange Commission or any
similar Governmental Authority.
(d) Together with each set of financial statements furnished under subsections (a) and (b) of
this section, Company will furnish a report (in form reasonably satisfactory to Administrative
Agent) of all Hedging Contracts of each of the Restricted Persons, setting forth the type, term,
effective date, termination date and notional amounts or volumes and the counterparty to each such
agreement.
(e) As soon as available, and in any event within ninety (90) days after the end of each
Fiscal Year, a business and financial plan, together with a capital expenditure schedule, for
Restricted Persons (in form reasonably satisfactory to Administrative Agent), prepared by a senior
financial officer thereof, setting forth for the first year thereof, quarterly financial
projections and budgets for Restricted Persons, and thereafter yearly financial projections and
budgets during the Availability Period.
(f) Concurrently with the annual renewal of Restricted Persons’ insurance policies, Company
shall, if requested by Administrative Agent in writing, cause a certificate or report to be issued
by Administrative Agent’s Insurance Advisor or other insurance consultants satisfactory to
Administrative Agent certifying that Restricted Persons’ insurance for the next succeeding year
after such renewal (or for such longer period for which such insurance is in effect) complies with
the provisions of this Agreement and the Security Documents.
(g) As soon as available and in any event no later than the fifteenth (15th) day after the end
of each month, monthly operating reports of Restricted Persons which shall include a description by
field of the gross quantities of Hydrocarbons and water produced from the Eligible Mortgaged
Properties during such month;
[Note Purchase Agreement]
44
(h) On each Quarterly Payment Date, a consolidated report in detail acceptable to
Administrative Agent containing:
(i) a detailed calculation of ANCF for the preceding ANCF Quarter including a detailed
aging of Restricted Persons’ accounts receivable and payable;
(ii) regardless of whether the same are included in such calculation of ANCF, a
detailed calculation of any leasehold operating expenses, overhead costs, capital
expenditures, and other direct charges or overhead costs with respect to the Eligible
Mortgaged Properties specifying any material differences from those approved and those
actually incurred;
(iii) a summary of xxxxx drilled, completed or worked over during the reporting period
showing the total depth drilled or tested, and the existing or anticipated perforated
interval and upon request copies of any well logs across the pay sectors;
(iv) a discussion of any current operating problems with any xxxxx and any proposed
solutions;
(v) any technical studies conducted during the reporting period of
performance; and
(vi) a projection of capital expenditures for the next ANCF Quarter and if any of such
capital expenditures are not ANCF Capital Expenditures the sources of capital for the
payment thereof.
(i) during the Availability Period, a semi-annual Engineering Report, to be effective as of
each May 1 and November 1 of each year and to be delivered to Administrative Agent prior to June 1
and December 1 for each respective period; and after the end of the Availability Period, an annual
Engineering Report to be effective as of November 1 of each year and to be delivered prior to
December 1 of each year. Each Engineering Report shall:
(i) be prepared at Company’s expense by the Independent Engineer, concerning all of the
oil and gas properties of Restricted Persons, including the Eligible Mortgaged Properties;
(ii) separately report on Proved Developed Producing Reserves, Proved Developed
Non-Producing Reserves and Proved Undeveloped Reserves of the Eligible Mortgaged Properties,
and separately calculate the NPV10 of each such category of Reserves;
(iii) use Agreed Pricing;
(iv) take into account Restricted Persons’ actual experiences with leasehold operating
expenses and other costs in determining projected leasehold operating expenses and other
costs;
(v) take into account any “over-produced” status under gas balancing
arrangements; and
(vi) otherwise be in form and substance satisfactory to Administrative Agent.
[Note Purchase Agreement]
45
In the event that Company and Administrative Agent disagree over whether or not any
workovers or other remedial capital expenditures should be included in an Engineering Report
for the purposes of calculating NPV10, the engineers preparing the report shall resolve such
disagreement by determining whether such expenditures are likely to be required in
accordance with prudent industry practice and shall include or exclude such expenditures
based upon such determination.
(j) after the Availability Period, a semi-annual engineering report as of May 1 of each year,
which shall be generated internally by Company and shall satisfy the requirements of clauses (ii)
through (vi) of the preceding subsection (i). Such interim engineering reports shall include, but
not be limited to, calculations of NPV10 on the Eligible Mortgaged Properties.
(k) as soon as available and in any event not later than December 28 of each Fiscal Year, an
annual budget of ECO and its Subsidiaries reviewed by the Manager and the principal financial
officer of ECO, setting forth in reasonable detail, the projected revenues and expenses for ECO and
its Subsidiaries for the next succeeding Fiscal Year.
(1) Upon request by Administrative Agent, a list, by name and address, of those Persons who
have purchased production during such Fiscal Quarter from the Eligible Mortgaged Properties, in
form and substance satisfactory to Administrative Agent.
(a) occurrence of any Material Adverse Change,
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness owed by any Restricted Person or of
any default by any Restricted Person under any indenture, mortgage, agreement, contract or other
instrument to which any of them is a party or by which any of them or any of their properties is
bound, if such acceleration or default could cause a Material Adverse Change,
(d) the occurrence of any Termination Event,
(e) any claim of $50,000 or more, any notice of potential liability under any Environmental
Laws which might exceed such amount, or any other material adverse claim asserted against any
Restricted Person or with respect to any Restricted Person’s properties, and
(f) the filing of any suit or proceeding against any Restricted Person in which an adverse
decision could cause a Material Adverse Change.
Upon the occurrence of any of the foregoing Restricted Persons will take all necessary or
appropriate steps to remedy promptly any such Material Adverse Change, Default, acceleration,
default or Termination Event, to protect against any such adverse claim, to defend any such suit or
proceeding, and to resolve all controversies on account of any of the foregoing. Company will also
notify Administrative Agent and Administrative Agent’s counsel in writing at least twenty
Business Days prior to the date that any Restricted Person changes its name or the location of its
chief executive office or its location under the Uniform Commercial Code.
[Note Purchase Agreement]
46
Section 7.4.
Maintenance of Properties. Each Restricted Person will maintain,
preserve, protect, and keep all Collateral and all other property used or useful in the conduct of
its business in good condition (normal wear and tear excepted) and in accordance with prudent
industry standards, and will from time to time make all repairs, renewals and replacements needed
to enable the business and operations carried on in connection therewith to be conducted at all
times consistent with prudent industry practices. All Collateral is, and will remain, located on
the premises subject to a Mortgage, except for that portion thereof which is or shall be located
elsewhere (including that usually located on such premises but temporarily located elsewhere) in
the course of the normal operation of the Properties. Each Restricted Person will maintain, good
and defensible title to the fee interests in real property and the oil and gas leasehold interests
comprising the Collateral, free and clear of all Liens, except for Permitted Liens. Company will
obtain and pay for the services of all engineering and professional staff and other Persons needed
to prudently execute the Approved Plan of Development.
Section 7.5.
Maintenance of Existence and Qualifications. Each Restricted Person will
maintain and preserve its existence and its rights and franchises in full force and effect and will
qualify to do business in all states or jurisdictions where required by applicable Law, except
where the failure so to qualify could cause a Material Adverse Change.
Section 7.6.
Payment of Trade Liabilities, Taxes, etc. Each Restricted Person will (a)
timely file all required tax returns including any extensions; (b) timely pay all taxes,
assessments, and other governmental charges or levies imposed upon it or upon its income, profits
or property before the same become delinquent; (c) within ninety (90) days past the original
invoice billing date therefor same becomes due pay all Liabilities owed by it on ordinary trade
terms to vendors, suppliers and other Persons providing goods and services used by it in the
ordinary course of its business; (d) pay and discharge when due all other Liabilities now or
hereafter owed by it, other than royalty payments suspended in the ordinary course of business; and
(e) maintain appropriate accruals and reserves for all of the foregoing in accordance with GAAP.
Each Restricted Person may, however, delay paying or discharging any of the foregoing so long as it
is in good faith contesting the validity thereof by appropriate proceedings, if necessary, and has
set aside on its books adequate reserves therefore which are required by GAAP.
Section 7.7.
Insurance. The Company will, and will cause each of its Subsidiaries to,
(i) keep and maintain all of its Property in good working order and condition, ordinary wear and
tear excepted, and (ii) maintain insurance with responsible and reputable insurance companies or
associations (including, without limitation, comprehensive general liability, hazard, business
interruption insurance) with respect to its properties (including all real properties leased or
owned by it) and business, in such amounts and covering such risks as is required by any
Governmental Authority having jurisdiction with respect thereto or as is carried generally in
accordance with sound business practice by companies in similar businesses similarly situated, and,
in any event in amount, adequacy and scope as required by the Insurance Schedule and satisfactory
to Administrative Agent and Required Holders.
[Note Purchase Agreement]
47
If Company or any of its Subsidiaries fails to
maintain such insurance, Administrative Agent or any Holder may arrange
for such insurance, but at Company’s expense and without any responsibility on the part of
Administrative Agent or any Holder for obtaining the insurance, the solvency of the insurance
companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and
during the continuance of an Event of Default, Administrative Agent shall have the sole right, in
the name of the Holders, Company and its Subsidiaries, to file claims under any insurance policies,
to receive, receipt and give acquittance for any payments that may be payable thereunder, and to
execute any and all endorsements, receipts, releases, assignments, reassignments or other documents
that may be necessary to effect the collection, compromise or settlement of any claims under any
such insurance policies.
Section 7.8.
Performance on Company’s Behalf. If any Restricted Person fails to pay
any taxes, insurance premiums, expenses, attorneys’ fees or other amounts it is required to pay
under any Note Document, Administrative Agent may pay the same. Company shall immediately reimburse
Administrative Agent for any such payments and each amount paid by Administrative Agent shall
constitute an Obligation owed hereunder which is due and payable on the date such amount is paid by
Administrative Agent.
Section 7.9.
Interest. Company hereby promises to each Holder Party to pay interest at
the Default Rate on all Obligations (including Obligations to pay fees or to reimburse or indemnify
any Holder but excluding principal of, and interest on, any Loan interest on which is covered by
Section 2.6) which Company has in this Agreement promised to pay to such Holder Party and which are
not paid when due. Such interest shall accrue from the date such Obligations become due until they
are paid.
Section 7.10.
Compliance with Agreements and Law. Each Restricted Person will perform
all material obligations it is required to perform under the terms of each indenture, mortgage,
deed of trust, security agreement, lease, franchise, agreement, contract or other instrument or
obligation to which it is a party or by which it or any of its properties is bound. Each Restricted
Person will conduct its business and affairs in compliance with all Laws applicable thereto. Each
Restricted Person will cause all licenses and permits necessary or appropriate for the conduct of
its business and the ownership and operation of its property used and useful in the conduct of its
business to be at all times maintained in good standing and in full force and effect.
Section 7.11.
Board Observation Rights. The Holders shall be entitled to appoint one
observer (an “
Observer”) to the Board of Directors or board of managers (or any similar group
performing an executive oversight or similar function) of Company and each Subsidiary and each
committee thereof (collectively, the “
Board”). Each Observer shall have the right to attend and
receive all materials distributed for or at all meetings (telephonic or otherwise) of the Board,
except that such Observer shall not be entitled to vote on matters presented to or discussed by the
Board nor participate in attorney-client privileged discussions or receive or review any documents
subject to an attorney-client or attorney work product privilege. Each of the Holders shall be
notified of all meetings and each Observer will be notified of all proposed actions (including not
less than two (2) Business Days prior notice of any proposed action to be taken without a meeting)
by the Board as if a representative of such Holders were a member of the Board. Each Observer shall
be entitled to be reimbursed by Company for all reasonable and
documented
out-of-pocket costs and expenses it incurred in connection with its participation in
meetings or other activities of the Board.
[Note Purchase Agreement]
48
(a) No Restricted Person will commingle its assets with those of any other Person.
(b) Each Restricted Person will conduct its business separately and in its own name from any
direct or ultimate parent of such Person.
(c) Each Restricted Person will maintain separate accounts, financial statements, books and
records from those of any other Person.
(d) Except as expressly permitted under Section 8.9, each Restricted Person will maintain an
“arm’s-length” relationship with its Affiliates.
(e) Each Restricted Person will use separate stationery, invoices and checks and will hold
itself out as a separate and distinct entity from any other Person.
(f) Each Restricted Person will observe all normal corporate or company formalities.
(g) Each Restricted Person will correct any known misunderstanding regarding its separate
identity.
(h) Each Restricted Person will maintain adequate capital in light of its contemplated
business operations.
(a) Each Restricted Person will comply in all material respects with all Environmental Laws
now or hereafter applicable to it, as well as all contractual obligations and agreements with
respect to environmental remediation or other environmental matters, and will obtain, at or prior
to the time required by applicable Environmental Laws, all environmental, health and safety
permits, licenses and other authorizations necessary for its operations and will maintain such
authorizations in full force and effect. No Restricted Person will do anything or permit anything
to be done that will subject any of the properties of any Restricted Person to any remedial
obligations under, or result in noncompliance with applicable permits and licenses issued under,
any applicable Environmental Laws, assuming disclosure to the applicable governmental authorities
of all relevant facts, conditions and circumstances. Upon Administrative Agent’s reasonable
request, at any time and from time to time, Company will provide at its own expense an
environmental inspection of any of its and the other Restricted Persons’ material real properties
and audit of their environmental compliance procedures and practices, in each case from an
engineering or consulting firm approved by Administrative Agent.
[Note Purchase Agreement]
49
(b) Company will promptly furnish to Administrative Agent all written notices of violation,
orders, claims, citations, complaints, penalty assessments, suits or other proceedings received by
any Restricted Person, or of which any Restricted Person otherwise has notice, with
respect to any alleged violation of or non-compliance with any Environmental Laws, with respect to
the properties or operations of Company and its Subsidiaries, or with respect to any permits,
licenses or authorizations in connection with the ownership or use of such properties or in
connection with any such operations.
(c) Company will promptly furnish to Administrative Agent all requests for information,
notices of claim, demand letters, and other notifications, received by any Restricted Person in
connection with the ownership or use of any of its properties or the conduct of its business,
relating to potential responsibility with respect to any investigation or clean-up of Hazardous
Material at any location.
Section 7.14.
Evidence of Compliance. Each Restricted Person will furnish to each
Holder at such Restricted Person’s or Company’s expense all evidence which Administrative Agent
from time to time reasonably requests in writing as to the accuracy and validity of or compliance
with all representations, warranties and covenants made by any Restricted Person in the Note
Documents, the satisfaction of all conditions contained therein, and all other matters pertaining
thereto.
Section 7.15.
Bank Accounts; Offset. To secure the repayment of the Obligations
Company hereby grants to each Holder a security interest, a lien, and a right of offset, each of
which shall be in addition to all other interests, liens, and rights of any Holder at common Law,
under the Note Documents, or otherwise, and each of which shall be upon and against (a) any and all
moneys, securities or other property (and the proceeds therefrom) of Company now or hereafter held
or received by or in transit to any Holder from or for the account of Company, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, (b) any and all deposits
(general or special, time or demand, provisional or final) of Company with any Holder, and (c) any
other credits and claims of Company at any time existing against any Holder, including claims under
certificates of deposit. At any time and from time to time after the occurrence of any Default,
each Holder is hereby authorized to foreclose upon, or to offset against the Obligations then due
and payable (in either case without notice to Company), any and all items hereinabove referred to.
The remedies of foreclosure and offset are separate and cumulative, and either may be exercised
independently of the other without regard to procedures or restrictions applicable to the other.
Section 7.16.
Guaranties of Company’s Subsidiaries. Each Subsidiary of ECO (other than
Company) now existing or created, acquired or coming into existence after the date hereof shall,
promptly upon request by Administrative Agent, execute and deliver to Administrative Agent an
absolute and unconditional guaranty of the timely repayment of the Obligations and the due and
punctual performance of the obligations of Company hereunder, which guaranty shall be satisfactory
to Administrative Agent in form and substance. ECO and Company will cause each such Person to
deliver to Administrative Agent, simultaneously with its delivery of such a guaranty, written
evidence satisfactory to Administrative Agent and its counsel that such Person has taken all
company action necessary to duly approve and authorize its execution, delivery and performance of
such guaranty and any other documents which it is required to execute.
[Note Purchase Agreement]
50
Section 7.17.
Agreement to Deliver Security Documents. Company agrees to deliver and
to cause each other Restricted Person to deliver, to further secure the Obligations whenever
requested by Administrative Agent in its sole and absolute discretion, deeds of trust, mortgages,
chattel mortgages, security agreements, financing statements and other Security Documents in form
and substance satisfactory to Administrative Agent for the purpose of granting, confirming, and
perfecting first and prior liens or security interests in any real or personal property now owned
or hereafter acquired by any Restricted Person. Company agrees to deliver and to cause each other
Restricted Person to deliver, whenever requested by Administrative Agent, in its sole and absolute
discretion, transfer orders or letters in lieu thereof with respect to the production and proceeds
of production from the Collateral, in form and substance satisfactory to Administrative Agent.
Company also agrees to deliver, whenever requested by Administrative Agent in its sole and absolute
discretion, favorable title opinions from legal counsel acceptable to Administrative Agent with
respect to any Restricted Person’s properties and interests designated by Administrative Agent,
based upon abstract or record examinations to dates acceptable to Administrative Agent and (a)
stating that such Restricted Person has good and defensible title to such properties and interests,
free and clear of all Liens other than Permitted Liens, (b) confirming that such properties and
interests are subject to Security Documents securing the Obligations that constitute and create
legal, valid and duly perfected first deed of trust or mortgage liens in such properties and
interests and first priority assignments of and security interests in the oil and gas attributable
to such properties and interests and the proceeds thereof, and (c) covering such other matters as
Administrative Agent may request. Company shall deliver duly executed control agreements from each
institution holding any Restricted Person’s Deposit Accounts pursuant to which such institution
recognizes Administrative Agent’s Lien in such Deposit Accounts and, upon the occurrence and during
the continuance of an Event of Default, agrees to transfer collected balances in all such Deposit
Accounts to Administrative Agent pursuant to its instructions from time to time; provided that no
such control agreement shall be required with respect to Deposit Accounts that are designated
solely as (a) payroll funding accounts or (b) royalty or joint interest owner accounts. Each
Restricted Person shall (a) cause any Security Documents required to be filed with an Indian tribe,
the Bureau of Indian Affairs, or the U.S. Bureau of Land Management to be so filed, (b) shall
diligently attempt to obtain all consents from such Persons that are necessary or desirable in
connection with such Note Documents, and (c) shall provide monthly updates to Administrative Agent
with respect to the foregoing filings and consents until they are obtained.
Section 7.18.
Production Proceeds. Notwithstanding that, by the terms of the various
Security Documents, Restricted Persons are and will be assigning to Administrative Agent and
Holders all of the “Production Proceeds” (as defined therein) accruing to the property covered
thereby, so long as no Default has occurred Restricted Persons may continue to receive from the
purchasers of production all such Production Proceeds, subject, however, to the Liens created under
the Security Documents, which Liens are hereby affirmed and ratified. Upon the occurrence of a
Default, Administrative Agent and Holders may exercise all rights and remedies granted under the
Security Documents, including the right to obtain possession of all production proceeds then held
by Restricted Persons or to receive directly from the purchasers of production all other Production
Proceeds. In no case shall any failure, whether purposed or inadvertent, by Administrative Agent or
Holders to collect directly any such Production Proceeds constitute in any way a waiver, remission
or release of any of their rights under the Security Documents, nor shall any release of any
Production Proceeds by Administrative Agent or Holders to Restricted Persons constitute a waiver,
remission, or release of any other Production Proceeds or of any rights of Administrative Agent or
Holders to collect other Production Proceeds thereafter.
[Note Purchase Agreement]
51
Section 7.19.
Leases and Contracts; Performance of Obligations. Each Restricted Person
will maintain in full force and effect all oil, gas or mineral leases, contracts, servitudes and
other agreements forming a part of any Oil and Gas Property, to the extent the same cover or
otherwise relate to such Oil and Gas Property, and each Restricted Person will timely perform all
of its obligations thereunder. Each Restricted Person will properly and timely pay all rents,
royalties and other payments due and payable under any such leases, contracts, servitudes and other
agreements, or under the Permitted Liens, or otherwise attendant to its ownership or operation of
any Oil and Gas Property. Each Restricted Person will promptly notify Administrative Agent of any
claim (or any conclusion by such Restricted Person) that such Restricted Person is obligated to
account for any royalties, or overriding royalties or other payments out of production, on a basis
(other than delivery in kind) less favorable to such Restricted Person than proceeds received by
Restricted Person (calculated at the well) from sale of production.
Section 7.20.
Approved Plan of Development; Project Area. Restricted Persons will (a)
timely develop the Oil and Gas Properties, and make capital expenditures on the Oil and Gas
Properties, in accordance with the Approved Plan of Development, and (b) except to the extent
regulatory approval has not yet been obtained, have each producing and injection well which is
hereafter completed put into normal operation. Company, GO, and MV Pipeline will be the only
Subsidiaries of Parent that now or hereafter own any Oil and Gas Property of any kind within the
Project Area, and neither GO nor MV Pipeline will hereafter acquire any Oil and Gas Property within
the Project Area in addition to the pipeline Oil and Gas Properties it acquired on the Acquisition
Closing Date. Parent will not acquire, and will not allow any of its Subsidiaries or Affiliates
other than Company to acquire, any Oil and Gas Property in the Project Area, and if any of them now
or hereafter acquires any Oil and Gas Property within the Project Area, Parent and/or the other
applicable Subsidiaries of Parent will cause such Oil and Gas Property to be promptly transferred
to Company as a capital contribution.
Section 7.21.
Hedging Contracts. Upon Administrative Agent’s request from time to
time, Company shall enter into Hedging Contracts upon terms and conditions acceptable to
Administrative Agent in its sole and absolute discretion such that, when combined with Company’s
then existing Hedging Contracts, the percentage (not to exceed 75%) from time to time specified by
Administrative Agent of Company’s aggregate Projected PDP Oil and Gas Production through the date
that is three years from the date of Administrative Agent’s request will be subject to Hedging
Contracts with the purpose and effect of fixing prices on such production.
Section 7.22.
Other Information and Inspections. Each Restricted Person will promptly
furnish to each Holder as soon as reasonably possible any information which Administrative Agent
may from time to time request concerning any provision of the Note Documents, any Collateral, or
any matter in connection with the businesses, properties, prospects, financial condition and
operations of any Restricted Person, including all evidence which Administrative Agent from time to
time reasonably requests in writing as to the accuracy and validity of or compliance with all
representations, warranties and covenants made by any Restricted Person in the Note Documents, the
satisfaction of all conditions contained therein, and all other matters pertaining thereto.
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Each
Restricted Person will permit representatives appointed by Administrative Agent (including
independent accountants, auditors, agents, attorneys, appraisers
and any other Persons) to visit and inspect during normal business hours any of such Restricted
Person’s property, including its books of account, other books and records, and any facilities or
other business assets, and to make extra copies therefrom and photocopies and photographs thereof,
and to write down and record any information such representatives obtain, and each Restricted
Person shall permit Administrative Agent or its representatives to investigate and verify the
accuracy of the information furnished to Administrative Agent or any Holder in connection with the
Note Documents and to discuss all such matters with its officers, employees and representatives.
Section 7.23.
Post Closing Items. Company shall cause the post closing items
identified below to be completed on or before the due dates reflected below:
(a) Within ten Business Days after the date hereof, Company shall establish the Collateral
Account with a depositary institution satisfactory to Administrative Agent and shall delivery a
duly executed control agreement from such institution in form and substance satisfactory to
Administrative Agent pursuant to which such institution recognizes Administrative Agent’s Lien in
such account and agrees to comply with instructions originated by Administrative Agent directing
disposition of funds in such account without further consent by Company.
(b) Not later than ten Business Days after the date hereof, Restricted Persons shall send a
notice, in form satisfactory to Administrative Agent, to all existing purchasers of Hydrocarbons
produced from the Eligible Mortgaged Properties and/or other Persons making payments to Restricted
Persons in respect of their oil and gas business, directing them to forward all amounts payable to
Restricted Persons directly to the Collateral Account at the mailing address of the depositary bank
for deposit into the Collateral Account (or alternatively, by wire transfer directly into the
Collateral Account).
(c) Company shall use its best efforts, to obtain the following title curative documents
(all in form and substance satisfactory to Administrative Agent) as promptly as possible
after Closing:
(i) a release of the Lis Pendens Notice filed by Xxxx Xxxxx and Xxxxx Xxxxxx against
the Collateral acquired by Company from Existing Borrower,
(ii) Quitclaim assignments from Xxxx Xxxxx (and related trusts) and Xxxxx Xxxxxx
relating to their prior conveyances to Existing Borrower and Xxxxx Petroleum, and
(iii) copies of the trust documents relating to the formation of the Xxxx Xxxxx Trust
IV and any curative documents relating to assignments from the trust.
(d) Within sixty days after the date hereof, Company shall obtain an assignment from the
Department of Army Corps of Engineers for its permit on the MV Pipeline system which is currently
held in the name of Venture Pipeline Company, and any required consents to assignment from Ozark
Gas Gathering LLC (or its successors and assigns) relating to the GO, LLC pipeline system, in each
case in form and substance satisfactory to Administrative Agent.
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(e) Within ten Business Days after the date hereof, Company will deliver to each Holder true,
correct and complete copies of the Initial Pro Forma Financial Statements.
To conform with the terms and conditions under which each Holder is willing to have credit
outstanding to Company, and to induce each Holder to enter into this Agreement and make the Loans,
Company warrants, covenants and agrees that until the full and final payment of the Obligations and
the termination of this Agreement, unless Required Holders have previously agreed otherwise:
Section 8.1.
Indebtedness. No Restricted Person will in any manner owe or be liable
for Indebtedness except:
(a) the Obligations.
(b) unsecured intercompany Indebtedness arising in the ordinary course of business among
Company and any future Subsidiary of Company that is in compliance with Section 7.17.
(c) Indebtedness arising under Hedging Contracts permitted under Section 8.3.
Section 8.2.
Limitation on Liens. Except for Permitted Liens, no Restricted Person
will create, assume or permit to exist any Lien upon any of the properties or assets which it now
owns or hereafter acquires.
Section 8.3.
Limitation on Hedging Contracts. No Restricted Person will be a party to
or in any manner be liable on any Hedging Contract, except for (a) the Hedging Contracts described
in Section 7.21, and (b) other Hedging Contracts approved in writing by Administrative Agent from
time to time in its sole and absolute discretion.
Section 8.4.
Limitation on Mergers, Issuances of Securities. No Restricted Person
shall create or own any Subsidiary other than those listed in the Disclosure Schedule or hereafter
consented to by Administrative Agent in writing. No Restricted Person will merge or consolidate
with or into any other Person, except for the Merger pursuant to the terms of the Merger Documents.
Company will not issue any Equity other than shares of its common capital stock and any options or
warrants giving the holders thereof only the right to acquire such shares. No Subsidiary of Company
will issue any additional Equity except to Company and only to the extent not otherwise forbidden
under the terms hereof. No Subsidiary of Company which is a partnership will allow any diminution
of Company’s interest (direct or indirect) therein.
Section 8.5.
Limitation on Dispositions of Property. No Restricted Person will sell,
transfer, lease, exchange, alienate or dispose of any of its material assets or properties or any
material interest therein, or discount, sell, pledge or assign any notes payable to it, accounts
receivable or future income, except, to the extent not otherwise forbidden under the Security
Documents:
(a) equipment which is worthless or obsolete or which is replaced by equipment of equal
suitability and value; and
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(b) inventory (including oil and gas sold as produced and seismic data) which is sold in the
ordinary course of business on ordinary trade terms.
No Restricted Person will abandon or consent to the abandonment of, any oil or gas well
constituting Collateral so long as such well is capable (or is subject to being made capable
through drilling, reworking or other operations which it would be commercially feasible to conduct)
of producing oil, gas, or other hydrocarbons or other minerals in commercial quantities (as
determined without considering the effect of any Mortgage). No Restricted Person will elect not to
participate in a proposed operation on any oil and gas property constituting Collateral where the
effect of such election would be the forfeiture either temporarily (e.g., until a certain sum of
money is received out of the forfeited interest) or permanently of any interest in the Collateral.
No Restricted Person will discount, sell, pledge or assign any notes payable to it, accounts
receivable or future income except to the extent expressly permitted under the Note Documents.
(a) No Restricted Person will declare or make any Distribution, other than
(i) Distributions payable to Company or to Guarantors that are Subsidiaries of ECO, to the extent
not in violation of the investment restrictions of Section 8.7; (ii) Distributions by a Restricted
Person payable only in such Restricted Person’s common stock or common equity, so long as Penny’s
interest in any of its Subsidiaries is not thereby reduced; and (iii) Permitted ANCF Distributions
described in
Section 8.6(b).
(b) In the event that ECO desires to make a quarterly Permitted ANCF Distribution, Company and
ECO may deliver to Administrative Agent at its addresses for notices in Section 12.3 a certificate
(in form and detail satisfactory to Administrative Agent) signed by the manager, president or chief
executive officer of Company and ECO, respectively, at least 10 Business Days and no more than 20
Business Days prior to a Quarterly Payment Date (an “ANCF Distribution Certificate”)
describing the amount of such proposed Permitted ANCF Distribution and certifying:
(i) that no Default or Event of Default has occurred and that is continuing on the date
thereof or would result from the making of such proposed Permitted ANCF Distribution,
(ii) no Coverage Deficiency has occurred and that is continuing on the date thereof or
would result from the making of such proposed Permitted ANCF Distribution,
(iii) that
after giving effect to such Distribution, the PDP Collateral Coverage Ratio
shall be greater than 1.5 and the Collateral Coverage Ratio shall be greater than 2.0
(together with the calculations showing such ratios based on an Engineering Report prepared
by the Independent Engineer which Engineering Report shall not have an effective date older
than six months prior to the proposed Permitted ANCF Distribution, as adjusted and updated
by Company to reflect current operations in the field and production runs in a manner
satisfactory to Administrative Agent), and
(iv) the calculations supporting such proposed Permitted ANCF Distribution.
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Upon receipt of an ANCF Distribution Certificate, Administrative Agent shall review such
certificate and notify Company in writing on or before the applicable Quarterly Payment Date
whether it has determined that ECO is eligible to make the proposed Permitted ANCF Distribution
described in the applicable ANCF Distribution Certificate. If Administrative Agent has so
determined that ECO is eligible to make such proposed Permitted ANCF Distribution, then ECO may
make the quarterly Permitted ANCF Distribution as provided in this Section 8.6(b) on the applicable
Quarterly Payment Date (“Permitted ANCF Distributions”). Each Permitted ANCF Distribution shall be
calculated with respect to the ANCF Quarter most recently ended and shall not exceed an amount
equal to seventy-five percent (75%) of (x) the Dedication Rate multiplied by ANCF for such ANCF
Quarter, less (y) the Minimum Scheduled Quarterly Principal Payment; provided that no Permitted
ANCF Distributions may be made with respect to ANCF Quarters ending on or before August 31, 2008.
Section 8.7.
Limitation on Investments and New Businesses. No Restricted Person will
(a) make any expenditure or commitment or incur any obligation or enter into or engage in any
transaction except in the ordinary course of business, (b) engage directly or indirectly in any
business or conduct any operations except in connection with or incidental to its present
businesses and operations, or (c) make any acquisitions of or capital contributions to or other
Investments in any Person or property, other than Permitted Investments. No Restricted Person will
open or establish any “securities account” (as defined in the UCC) without the prior written
consent of Administrative Agent.
Section 8.8.
Limitation on Credit Extensions. Except for Permitted Investments, no
Restricted Person will extend credit, make advances or make loans other than (a) normal and prudent
extensions of credit to customers buying goods and services in the ordinary course of business,
which extensions shall not be for longer periods than those extended by similar businesses operated
in a normal and prudent manner, and (b) loans to Company.
Section 8.9.
Transactions with Affiliates. Neither ECO nor any of its Subsidiaries
will engage in any material transaction with any of its Affiliates on terms which are less
favorable to it than those which would have been obtainable at the time in arm’s-length dealing
with Persons other than such Affiliates, provided that such restriction shall not apply to
transactions among ECO and its wholly owned Subsidiaries that are Guarantors.
Section 8.10.
Prohibited Contracts. Except as expressly provided for in the Note
Documents, no Restricted Person will, directly or indirectly, enter into, create, or otherwise
allow to exist any contract or other consensual restriction on the ability of any Subsidiary of
Company to: (a) pay dividends or make other distributions to Company, (b) to redeem equity
interests held in it by Company, (c) to repay loans and other indebtedness owing by it to Company,
or (d) to transfer any of its assets to Company. No Restricted Person will enter into any
“take-or-pay” contract or other contract or arrangement for the purchase of goods or services which
obligates it to pay for such goods or service regardless of whether they are delivered or furnished
to it. No Restricted Person will amend or permit any amendment to any contract or lease which
releases, qualifies, limits, makes contingent or otherwise detrimentally affects the rights and
benefits of Administrative Agent or any Holder under or acquired pursuant to any Security
Documents. No ERISA Affiliate will incur any obligation to contribute to any “multiemployer plan”
as defined in Section 4001 of ERISA. Company will not permit the Equity of MV Pipeline being
pledged
pursuant to the Security Documents to at any time become subject to any restriction on the
transfer, pledge, or voting of such Equity.
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Section 8.12.
Current Ratio. At the end of each Fiscal Quarter, beginning with
the Fiscal Quarter ending December 31, 2007, ECO’s Current Ratio will not be less than 1.0.
Section 8.13.
Amendments to Organizational Documents; Other Material Agreements.
Company will not, and will not permit any of its Subsidiaries to, enter into or permit any
modification of, or waive any material right or obligation of any Person under its, as the case may
be, certificate or articles of incorporation, articles of organization, bylaws, regulations,
operating agreement or other organizational documents other than amendments, modifications and
waivers which could not, individually or in the aggregate, have a Material Adverse Change.
Section 8.14.
Acquisition Documents. Company shall not (a) cancel or terminate any
Acquisition Document (or consent to or accept any cancellation or termination thereof), or (b)
amend or otherwise modify any Acquisition Document or give any consent, waiver or approval
thereunder, or (c) waive any breach of or default under any Acquisition Document, in each case
without the prior written consent of Administrative Agent.
Section 8.15.
Excess Drilling & Completion Costs. No Restricted Person will use any
proceeds of the Loans to pay for Excess Drilling & Completion Costs. In furtherance thereof,
Company will monitor on a daily basis the drilling and completion costs associated with the xxxxx
drilled pursuant to the APOD and will immediately notify Administrative Agent of the incurrence (or
anticipated incurrence) of any Excess Drilling & Completion Costs.
Section 8.16.
General and Administrative Expenses. The Restricted Persons will not
permit their monthly aggregate general and administrative expenses to exceed the Permitted G&A
Expense Amount. The Restricted Persons will not incur or otherwise become liable for the payment of
management or consulting fees.
Section 8.17.
Capital Expenditures. Except for ANCF Capital Expenditures, the
Restricted Persons will not incur or otherwise become liable for any capital expenditures.
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Section 9.1.
Events of Default. Each of the following events constitutes an Event of
Default under this Agreement:
(a) Any Restricted Person fails to pay any principal component of any Obligation when due and
payable, whether at a date for the payment of a fixed installment or as a contingent or other
payment becomes due and payable or as a result of acceleration or otherwise;
(b) Any Restricted Person fails to pay any Obligation (other than the Obligations in
subsection (a) above) when due and payable, whether at a date for the payment of a fixed
installment or as a contingent or other payment becomes due and payable or as a result of
acceleration or otherwise, within three Business Days after the same becomes due;
(c) Any Restricted Person fails to duly observe, perform or comply with any covenant,
agreement or provision of Section 7.4 or Article VIII;
(d) Any Restricted Person fails (other than as referred to in subsections (a), (b), or (c)
above) to duly observe, perform or comply with any covenant, agreement, condition or provision of
any Note Document to which it is a party, and such failure remains unremedied for a period of
thirty (30) days after notice of such failure is given by Administrative Agent to Company;
(e) Any representation or warranty previously, presently or hereafter made in writing by or on
behalf of any Restricted Person in connection with any Transaction Documents shall prove to have
been false or incorrect in any material respect on any date on or as of which made, or any
Transaction Documents at any time ceases to be valid, binding and enforceable as warranted in
Section 5.5 for any reason other than its release by or subordination by Administrative Agent;
(f) Any Restricted Person fails to duly observe, perform or comply with any agreement with any
Person or any term or condition of any instrument, if such agreement or instrument is materially
significant to Company or to Company and its Subsidiaries on a Consolidated basis or materially
significant to any Guarantor, and such failure is not remedied within the applicable period of
grace (if any) provided in such agreement or instrument;
(g) Company or any Affiliate of any such Person fails to duly observe, perform or comply with
any Acquisition Document, and such failure is not remedied within the applicable period of grace
(if any) provided in such agreement or instrument;
(h) Any Restricted Person (i) fails to pay any portion, when such portion is due, of any of
its Indebtedness in excess of $50,000, or (ii) breaches or defaults in the performance of any
agreement or instrument by which any such Indebtedness is issued, evidenced, governed, or secured,
and any such failure, breach or default continues beyond any applicable period of grace provided
therefor;
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(i) Either (i) any “accumulated funding deficiency” (as defined in Section 412(a) of the
Internal Revenue Code) in excess of $50,000 exists with respect to any ERISA Plan, whether or not
waived by the Secretary of the Treasury or his delegate, or (ii) any Termination Event
occurs with respect to any ERISA Plan and the then current value of such ERISA Plan’s benefit
liabilities exceeds the then current value of such ERISA Plan’s assets available for the payment of
such benefit liabilities by more than $50,000 (or in the case of a Termination Event involving the
withdrawal of a substantial employer, the withdrawing employer’s proportionate share of such excess
exceeds such amount);
(j) The occurrence of any Change of Control;
(k) Any Restricted Person, Parent, General Partner or Northport:
(i) suffers the entry against it of a judgment, decree or order for relief by a
Governmental Authority of competent jurisdiction in an involuntary proceeding commenced
under any applicable bankruptcy, insolvency or other similar Law of any jurisdiction now or
hereafter in effect, including the federal Bankruptcy Code, as from time to time amended, or
has any such proceeding commenced against it which remains undismissed for a period of
thirty days; or
(ii) commences a voluntary case under any applicable bankruptcy, insolvency or similar
Law now or hereafter in effect, including the federal Bankruptcy Code, as from time to time
amended; or applies for or consents to the entry of an order for relief in an involuntary
case under any such Law; or makes a general assignment for the benefit of creditors; or is
generally not paying (or admits in writing its inability to pay) its debts as such debts
become due; or takes corporate or other action authorizing any of the foregoing; or
(iii) suffers the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of all or a substantial part
of its assets or of any part of the Collateral in a proceeding brought against or initiated
by it, and such appointment or taking possession is neither made ineffective nor discharged
within thirty days after the making thereof, or such appointment or taking possession is at
any time consented to, requested by, or acquiesced to by it; or
(iv) suffers the entry against it of a final judgment for the payment of money in
excess of $50,000 (not covered by insurance satisfactory to Administrative Agent in its
discretion), unless the same is discharged within thirty days after the date of entry
thereof or an appeal or appropriate proceeding for review thereof is taken within such
period and a stay of execution pending such appeal is obtained; or
(v) suffers a writ or warrant of attachment or any similar process to be issued by any
Governmental Authority against all or any substantial part of its assets or any part of the
Collateral, and such writ or warrant of attachment or any similar process is not stayed or
released within thirty days after the entry or levy thereof or after any stay is vacated or
set aside;
(l) The occurrence of any Material Adverse Change;
(m) The
occurrence of any Coverage Default; and
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(n) The occurrence of any AMI Violation.
Upon the occurrence of an Event of Default described in subsection (k)(i), (k)(ii) or (k)(iii) of
this section with respect to a Restricted Person, all of the Obligations shall thereupon be
immediately due and payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate, declaration or notice of
acceleration, or any other notice or declaration of any kind, all of which are hereby expressly
waived by Company and each Restricted Person who at any time ratifies or approves this Agreement.
Upon any such acceleration, any obligation of any Holder to make any further Loans hereunder shall
be permanently terminated. During the continuance of any other Event of Default, Administrative
Agent at any time and from time to time may (and upon written instructions from Required Holders,
Administrative Agent shall), without notice to Company or any other Restricted Person, do either or
both of the following: (1) terminate any obligation of Holders to make Loans hereunder, and (2)
declare any or all of the Obligations immediately due and payable, and all such Obligations shall
thereupon be immediately due and payable, without demand, presentment, notice of demand or of
dishonor and nonpayment, protest, notice of protest, notice of intention to accelerate, declaration
or notice of acceleration, or any other notice or declaration of any kind, all of which are hereby
expressly waived by Company and each Restricted Person who at any time ratifies or approves this
Agreement.
Section 9.2.
Remedies. If any Default shall occur and be continuing, Required Holders,
or Administrative Agent at the direction of Required Holders, may protect and enforce its rights
under the Note Documents by any appropriate proceedings, including proceedings for specific
performance of any covenant or agreement contained in any Note Document. All rights, remedies and
powers conferred upon Holder Parties under the Note Documents shall be deemed cumulative and not
exclusive of any other rights, remedies or powers available under the Note Documents or at Law or
in equity.
Section 10.1.
Restrictive Legend. Each note, certificate or other instrument
evidencing the Notes issued by Company shall be stamped or otherwise imprinted with a legend in
substantially the following forms:
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION.
THE SECURITIES EVIDENCED BY THIS INSTRUMENT ARE SUBJECT TO THE TERMS OF A CERTAIN NOTE
PURCHASE AGREEMENT DATED AS OF NOVEMBER 19, 2007 AMONG RIO VISTA XXXXX LLC AND THE HOLDERS
IDENTIFIED THEREIN, AND TCW ASSET MANAGEMENT COMPANY, AS ADMINISTRATIVE AGENT, A COPY OF
WHICH IS ON FILE AT THE OFFICES
OF TCW ASSET MANAGEMENT COMPANY AND WILL BE FURNISHED BY TCW ASSET MANAGEMENT COMPANY TO THE
HOLDER HEREOF UPON REQUEST.”
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Notwithstanding the foregoing, the restrictive legend set forth above shall not be required after
the date on which the securities evidenced by such note, certificate or other instrument bearing
such restrictive legend no longer constitute Restricted Notes, and upon the request of the Holder
of such Notes, Company, without expense to the Holder, shall issue a new note, certificate or other
instrument as applicable not bearing the restrictive legend otherwise required to be borne thereby.
Section 11.1.
Appointment and Authority. Each Holder Party hereby irrevocably
authorizes Administrative Agent, and Administrative Agent hereby undertakes, to receive payments of
principal, interest and other amounts due hereunder as specified herein and to take all other
actions and to exercise such powers under the Note Documents as are specifically delegated to
Administrative Agent by the terms hereof or thereof, together with all other powers reasonably
incidental thereto. With respect to any matters not expressly provided for in the Note Documents
and any matters which the Note Documents place within the discretion of Administrative Agent,
Administrative Agent shall not be required to exercise any discretion or take any action, and it
may request instructions from Holders with respect to any such matter, in which case it shall be
required to act or to refrain from acting (and shall be fully protected and free from liability to
all Holder Parties in so acting or refraining from acting) upon the instructions of Required
Holders (including itself), provided, however, that Administrative Agent shall not be required to
take any action which exposes it to a risk of personal liability that it considers unreasonable or
which is contrary to the Note Documents or to applicable Law. Such appointment of TAMCO as
Administrative Agent shall not, however, impair or modify any rights, obligations or duties which
TAMCO or any Affiliate of TAMCO otherwise has with respect to any Holder. In its administration of
this Agreement and the other Note Documents, except to the extent to which another standard applies
to TAMCO by reason of any other document between TAMCO and another Holder, Administrative Agent
will exercise the same care that it exercises in the administration or handling of transactions for
its own account, subject, however, to Section 11.12 below. The duties undertaken by TAMCO, as
Administrative Agent, have been undertaken as an accommodation to Holders and, accordingly, TAMCO
shall not be compensated for its services hereunder except as provided in the TCW Governing
Documents.
Section 11.2.
Exculpation, Administrative Agent’s Reliance, Etc. Neither
Administrative Agent nor any of its directors, officers, agents, attorneys, or employees shall be
liable for any action taken or omitted to be taken by any of them under or in connection with the
Note Documents, including their negligence of any kind, except that each shall be liable for its
own gross negligence or willful misconduct. Without limiting the generality of the foregoing,
Administrative Agent (a) may treat the Person whose name is set forth on the Register as the holder
of any Obligation as the holder thereof until Administrative Agent receives written notice of the
assignment or transfer thereof in accordance with this Agreement, signed by such Person and in form
satisfactory to Administrative Agent; (b) may consult with legal counsel (including
counsel for Company), independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts;
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(c) makes no warranty or representation to any
other Holder and shall not be responsible to any other Holder Party for any statements, warranties
or representations made in or in connection with the Note Documents; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms, covenants or
conditions of the Note Documents on the part of any Restricted Person or to inspect the property
(including the books and records) of any Restricted Person; (e) shall not be responsible to any
other Holder for the due execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Note Document or any instrument or document furnished in connection therewith; (f) may
rely upon the representations and warranties of each Restricted Person or Holder Party in
exercising its powers hereunder; and (g) shall incur no liability under or in respect of the Note
Documents by acting upon any notice, consent, certificate or other instrument or writing (including
any facsimile, telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper Person or Persons.
Section 11.3.
Credit Decisions. Each Holder Party acknowledges that it has,
independently and without reliance upon any other Holder Party, made its own analysis of Restricted
Persons and the transactions contemplated hereby and its own independent decision to enter into
this Agreement and the other Note Documents. Each Holder Party also acknowledges that it will,
independently and without reliance upon any other Holder Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Note Documents.
Section 11.4.
Indemnification. Each Holder agrees to indemnify Administrative Agent
(to the extent not reimbursed by Company within ten (10) days after demand) from and against such
Holder’s Percentage Share of any and all liabilities, obligations, claims, losses, damages,
penalties, fines, actions, judgments, suits, settlements, costs, expenses or disbursements
(including reasonable fees of attorneys, accountants, experts and advisors) of any kind or nature
whatsoever (in this section collectively called “liabilities and costs”) which to any extent (in
whole or in part) may be imposed on, incurred by, or asserted against Administrative Agent growing
out of, resulting from or in any other way associated with any of the Collateral, the Note
Documents and the transactions and events (including the enforcement thereof) at any time
associated therewith or contemplated therein (whether arising in contract or in tort or otherwise
and including any violation or noncompliance with any Environmental Laws by any Person or any
liabilities or duties of any Person with respect to Hazardous Materials found in or released into
the environment).
The foregoing indemnification shall apply whether or not such liabilities and costs are in any
way or to any extent owed, in whole or in part, under any claim or theory of strict liability, or
are caused, in whole or in part, by any negligent act or omission of any kind by Administrative
Agent,
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provided only that no Holder shall be obligated under this section to indemnify Administrative
Agent for that portion, if any, of any liabilities and costs which is proximately caused by
Administrative Agent’s own individual gross negligence or willful misconduct, as determined in a
final judgment. Cumulative of the foregoing, each Holder agrees to reimburse Administrative Agent
promptly upon demand for such Holder’s Percentage Share of any costs and expenses to be paid to
Administrative Agent by Company under Section 12.4(a) to the extent that Administrative Agent is
not timely reimbursed for such expenses by Company as provided in such section. As used in this
section the term “Administrative Agent” shall refer not only to the Person designated as such in
Section 1.1 but also to each director, officer, agent, attorney, employee, representative and
Affiliate of such Person.
Section 11.5.
Rights as Holder. In its capacity as a Holder, Administrative Agent
shall have the same rights and obligations as any Holder and may exercise such rights as though it
were not Administrative Agent. Administrative Agent may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with any Restricted
Person or their Affiliates, all as if it were not Administrative Agent hereunder and without any
duty to account therefor to any other Holder.
Section 11.6.
Sharing of Set-Offs and Other Payments. Each Holder Party agrees that
if it shall, whether through the exercise of rights under Security Documents or rights of banker’s
lien, set off, or counterclaim against Company or otherwise, obtain payment of a portion of the
aggregate Obligations owed to it which, taking into account all distributions made by
Administrative Agent under Section 3.1, causes such Holder Party to have received more than it
would have received had such payment been received by Administrative Agent and distributed pursuant
to Section 3.1, then (a) it shall be deemed to have simultaneously purchased and shall be obligated
to purchase interests in the Obligations as necessary to cause all Holder Parties to share all
payments as provided for in Section 3.1, and (b) such other adjustments shall be made from time to
time as shall be equitable to ensure that Administrative Agent and all Holder Parties share all
payments of Obligations as provided in Section 3.1; provided, however, that nothing herein
contained shall in any way affect the right of any Holder Party to obtain payment (whether by
exercise of rights of banker’s lien, set-off or counterclaim or otherwise) of indebtedness other
than the Obligations. Company expressly consents to the foregoing arrangements and agrees that any
holder of any such interest or other participation in the Obligations, whether or not acquired
pursuant to the foregoing arrangements, may to the fullest extent permitted by Law exercise any and
all rights of banker’s lien, set-off, or counterclaim as fully as if such holder were a holder of
the Obligations in the amount of such interest or other participation. If all or any part of any
funds transferred pursuant to this section is thereafter recovered from the seller under this
section which received the same, the purchase provided for in this section shall be deemed to have
been rescinded to the extent of such recovery, together with interest, if any, if interest is
required pursuant to the order of a Governmental Authority order to be paid on account of the
possession of such funds prior to such recovery.
Section 11.7.
Investments. Whenever Administrative Agent in good faith determines
that it is uncertain about how to distribute to Holder Parties any funds which it has received,
or whenever Administrative Agent in good faith determines that there is any dispute among Holder
Parties about how such funds should be distributed, Administrative Agent may choose to defer
distribution of the funds which are the subject of such uncertainty or dispute. If Administrative
Agent in good faith believes that the uncertainty or dispute will not be promptly resolved, or if
Administrative Agent is otherwise required to invest funds pending distribution to Holder
Parties, Administrative Agent shall invest such funds pending distribution; all interest on any
such Investment shall be distributed upon the distribution of such Investment and in the same
proportion and to the same Persons as such Investment. All moneys received by Administrative Agent
for distribution to Holder Parties (other than to the Person who is Administrative Agent in its
separate capacity as a Holder Party) shall be held by Administrative Agent pending such
distribution solely as Administrative Agent for such Holder Parties, and Administrative Agent shall
have no equitable title to any portion thereof.
[Note Purchase Agreement]
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Section 11.8.
Benefit of Article XI. The provisions of this Article (other than the
following Section 11.9) are intended solely for the benefit of Holder Parties, and no Restricted
Person shall be entitled to rely on any such provision or assert any such provision in a claim or
defense against any Holder. Holder Parties may waive or amend such provisions as they desire
without any notice to or consent of Company or any Restricted Person.
Section 11.9.
Resignation. Administrative Agent may resign at any time by giving
written notice thereof to Holders and Company. Each such notice shall set forth the date of such
resignation. Upon any such resignation, Required Holders shall have the right to appoint (with,
unless an Event of Default shall have occurred and be continuing, the consent of Company, such
consent not to be unreasonably withheld or delayed) a successor Administrative Agent. A successor
must be appointed for any retiring Administrative Agent, and such Administrative Agent’s
resignation shall become effective only when such successor accepts such appointment. If, within
thirty days after the date of the retiring Administrative Agent’s resignation, no successor
Administrative Agent has been appointed and has accepted such appointment, then the retiring
Administrative Agent may appoint (with, unless an Event of Default shall have occurred and be
continuing, the consent of Company, such consent not to be unreasonably withheld or delayed) a
successor Administrative Agent. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the other Note Documents,
subject, however, in the case of TAMCO, to its rights and duties under any other agreements with
any Holder. After any retiring Administrative Agent’s resignation hereunder the provisions of this
Article IX shall continue to inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under the Note Documents.
Section 11.10.
Notice of Default. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to Administrative Agent for the account
of Holders, unless Administrative Agent shall have received written notice from a Holder or Company
referring to this Agreement, describing such Default and stating that such notice is a “notice of
default.” Administrative Agent will notify Holders of its receipt of any such notice.
Administrative Agent shall take such action with respect to such Default as may be directed by
Required Holders in accordance with Article IX; provided, however, that unless and until
Administrative Agent has received any such direction, Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect to such Default as
it shall deem advisable or in the best interest of Holders.
[Note Purchase Agreement]
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(a) this Agreement;
(b) the Security Documents; and
(c) the other documents entered into between TCW and TAMCO described in the definition
of “Holders” (such other documents, collectively the “TCW Governing Documents”),
nor shall Administrative Agent have any additional fiduciary relationship with any Holder arising
under this Article XI and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Note Documents against Administrative
Agent.
Section 11.12.
Limitation of Liability. Administrative Agent and its respective
officers, directors, employees, agents, attorneys-in-fact and affiliates shall not: (a) be liable
for any action taken or omitted to be taken by any of such Persons or for any error in judgment
under or in connection with this Agreement, the Notes and the Security Documents, except for any
such Person’s gross negligence or willful misconduct; or (b) be responsible in any manner to any
Holder or any other Person for any failure of any other party to perform its obligations under this
Agreement, the Notes and the Security Documents. Nothing in this Article XI, however, shall be
deemed to limit or restrict any liability, fiduciary duty or responsibility of TAMCO in any
capacity other than as Administrative Agent, including any liability, fiduciary duty or
responsibility under the TCW Governing Documents.
Section 11.13.
Reliance upon Documentation. Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or any telephone conversation believed by Administrative Agent
to be genuine and correct and to have been signed, sent, made or spoken by the proper person or
persons, and upon the advice and statements of legal counsel, independent accountants and other
experts selected by Administrative Agent.
Section 11.14.
Reliance by Company. Each of the Holders agrees that, prior to the
delivery to Company of a notice of the removal or termination of TAMCO as Administrative Agent as
set forth above, Company shall be entitled to rely on TAMCO’s or any subsequent Administrative
Agent’s authority to act on behalf of each of the Holders in all dealings with TAMCO (or any such
subsequent Administrative Agent) with respect to the Notes and the Note Documents; Company shall be
protected in relying on actions, communications, notices and terminations relating thereto or
required or permitted thereunder by Administrative Agent; and Company shall discharge its
obligations under this Agreement and the Note Documents by delivering payments, notices and other
information to Administrative Agent. In the event of the removal of Administrative Agent and the
appointment of a successor Administrative Agent by Holders, Company shall not be required to
recognize any such removal or appointment unless and until Company shall have received a writing
setting forth such removal and appointment executed by the Required Holders, and Company shall be entitled to rely on such writing as being
genuine and what it purports to be without any necessity of any investigation whatsoever. Company
shall be entitled to rely upon the actions, communications and notices of TAMCO with respect to the
Collateral until Company receives notice in writing from either TAMCO or Required Holders that
TAMCO has resigned or been replaced as Administrative Agent.
[Note Purchase Agreement]
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(a) Waivers and Amendments. No failure or delay (whether by course of conduct or
otherwise) by any Holder in exercising any right, power or remedy which such Holder Party may have
under any of the Note Documents shall operate as a waiver thereof or of any other right, power or
remedy, nor shall any single or partial exercise by any Holder Party of any such right, power or
remedy preclude any other or further exercise thereof or of any other right, power or remedy. No
waiver of any provision of any Note Document and no consent to any departure therefrom shall ever
be effective unless it is in writing and signed as provided below in this section, and then such
waiver or consent shall be effective only in the specific instances and for the purposes for which
given and to the extent specified in such writing. No notice to or demand on any Restricted Person
shall in any case of itself entitle any Restricted Person to any other or further notice or demand
in similar or other circumstances. This Agreement and the other Note Documents set forth the entire
understanding between the parties hereto with respect to the transactions contemplated herein and
therein and supersede all prior discussions and understandings with respect to the subject matter
hereof and thereof, and no waiver, consent, release, modification or amendment of or supplement to
this Agreement or the other Note Documents (other than the Warrants, which are governed by the
provisions thereof) shall be valid or effective against any party hereto unless the same is in
writing and signed by (i) if such party is Company, by Company, (ii) if such party is
Administrative Agent, by Administrative Agent, and (iii) if such party is a Holder, by such Holder
or by Administrative Agent on behalf of Holders with the written consent of Required Holders (which
consent has already been given as to the termination of the Note Documents as provided in Section
12.9). Notwithstanding the foregoing or anything to the contrary herein, Administrative Agent shall
not, without the prior consent of each individual Holder, execute and deliver on behalf of such
Holder any waiver or amendment which would: (1) waive any of the conditions specified in Article IV
(provided that Administrative Agent may in its discretion withdraw any request it has made under
Section 4.2(h)), (2) increase the maximum amount which such Holder is committed hereunder to lend,
(3) reduce any fees payable to such Holder hereunder, or the principal of, or interest on, such
Holder’s Note, (4) extend the Maturity Date, or postpone any date fixed for any payment of any such
fees, principal or interest, (5) amend the definition herein of “Required Holders” or otherwise
change the aggregate amount of Percentage Shares which is required for Administrative Agent,
Holders or any of them to take any particular action under the Note Documents, (6) release Company
from its obligation to pay such Holder’s Obligations or any Guarantor from its guaranty of such
payment, (7) release all or substantially all of the Collateral, except for such releases relating
to sales or dispositions of property permitted by the Note Documents, or (8) amend this Section
12.1(a).
[Note Purchase Agreement]
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(i) Company has been advised by counsel in the negotiation, execution and
delivery of the Note Documents to which it is a party,
(ii) Company has made an independent decision to enter into this Agreement and the
other Note Documents to which it is a party, without reliance on any representation,
warranty, covenant or undertaking by Administrative Agent or any Holder, whether written,
oral or implicit, other than as expressly set out in this Agreement or in another Note
Document delivered on or after the date hereof,
(iii) there are no representations, warranties, covenants, undertakings or
agreements by any Holder as to the Note Documents except as expressly set out in this
Agreement or in another Note Document delivered on or after the date hereof,
(iv) no Holder has any fiduciary obligation toward Company with respect to any
Note Document or the transactions contemplated thereby,
(v) the relationship pursuant to the Note Documents between Company and the other
Restricted Persons, on one hand, and each Holder, on the other hand, is and shall be solely
that of debtor and creditor, respectively, provided that, solely for purposes of Section
12.6(a) Administrative Agent shall act as Administrative Agent of Company in maintaining the
Register as set forth therein,
(vi) no partnership or joint venture exists with respect to the Note Documents
between any Restricted Person and any Holder,
(vii) Administrative Agent is not Company’s Administrative Agent, but
Administrative Agent for Holders, provided that, solely for purposes of Section 12.6(a)
Administrative Agent shall act as Administrative Agent of Company in maintaining the
Register as set forth therein,
(viii) should an Event of Default or Default occur or exist, each Holder will
determine in its sole and absolute discretion and for its own reasons what remedies and
actions it will or will not exercise or take at that time,
(ix) without limiting any of the foregoing, Company is not relying upon any
representation or covenant by any Holder, or any representative thereof, and no such
representation or covenant has been made, that any Holder will, at the time of an Event of
Default or Default, or at any other time, waive, negotiate, discuss, or take or refrain from
taking any action permitted under the Note Documents with respect to any such Event of
Default or Default or any other provision of the Note Documents, and
(x) all Holder Parties have relied upon the truthfulness of the acknowledgments in
this section in deciding to execute and deliver this Agreement and to become obligated
hereunder.
[Note Purchase Agreement]
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(f)
Joint Acknowledgment.
This written Agreement and the other Note Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the
parties.
There are no unwritten oral agreements between the parties.
Section 12.2.
Survival of Agreements; Cumulative Nature. All of Restricted Persons’
various representations, warranties, covenants and agreements in the Note Documents shall survive
the execution and delivery of this Agreement and the other Note Documents and the performance
hereof and thereof, including the making or granting of the Loans and the delivery of the Notes and
the other Note Documents, and shall further survive until all of the Obligations are paid in full
to each Holder Party and all of Holder Parties’ obligations to Company are terminated. All
statements and agreements contained in any certificate or other instrument delivered by any
Restricted Person to any Holder Party under any Note Document shall be deemed representations and
warranties by Company or agreements and covenants of Company under this Agreement. The
representations, warranties, indemnities, and covenants made by Restricted Persons in the Note
Documents, and the rights, powers, and privileges granted to Holder Parties in the Note Documents,
are cumulative, and, except for expressly specified waivers and consents, no Note Document shall be
construed in the context of another to
diminish, nullify, or otherwise reduce the benefit to any Holder Party of any such representation,
warranty, indemnity, covenant, right, power or privilege. In particular and without limitation, no
exception set out in this Agreement to any representation, warranty, indemnity, or covenant herein
contained shall apply to any similar representation, warranty, indemnity, or covenant contained in
any other Note Document, and each such similar representation, warranty, indemnity, or covenant
shall be subject only to those exceptions which are expressly made applicable to it by the terms of
the various Note Documents.
[Note Purchase Agreement]
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Section 12.3.
Notices. All notices, requests, consents, demands and other
communications required or permitted under any Note Document shall be in writing, unless otherwise
specifically provided in such Note Document (provided that Administrative Agent may give telephonic
notices to the other Holder Parties), and shall be deemed sufficiently given or furnished if
delivered by personal delivery, by facsimile, by delivery service with proof of delivery, or by
registered or certified United States mail, postage prepaid, to Company and Restricted Persons at
the address of Company specified below and to each Holder Party, c/o TAMCO, at the address
specified below (unless changed by similar notice in writing given by the particular Person whose
address is to be changed). Any such notice or communication shall be deemed to have been given (a)
in the case of personal delivery or delivery service, as of the date of first attempted delivery
during normal business hours at the address provided herein, (b) in the case of facsimile, upon
receipt, or (c) in the case of registered or certified United States mail, three days after deposit
in the mail; provided, however, that no Borrowing Notice shall become effective until actually
received by Administrative Agent. Electronic mail and internet and intranet websites may be used
only to distribute routine communications, such as financial statements and other information as
provided in Section 7.2, and to distribute Note Documents for execution by the parties thereto, and
may not be used for any other purpose.
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If to Company:
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Rio Vista Xxxxx LLC |
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0000 Xxxxxxxxx Xxxxxxxxxx #000X |
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Xxxxxxxx Xxxx, Xxxxxxxx 00000 |
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Attention: Xxx Xxxxxxxx
Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
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With copy to:
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Xxxxx X. Xxxxx |
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000 Xxxxx Xxxxxx, Xxxxx 000
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Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 |
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Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
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If to Holders:
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TCW Asset Management Company |
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000 Xxxx Xxxxxx, Xxxxx 0000 |
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Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx |
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Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
[Note Purchase Agreement]
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With copies to:
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TCW Asset Management Company |
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000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 |
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Xxx Xxxxxxx, XX 00000
Attention: R. Xxxxx Xxxxxx |
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Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
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and |
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Xxxxxxxx & Knight LLP
0000 Xxxxxxx Xxxxxx |
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Xxxxx 0000 |
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Xxxxxx, Xxxxx 00000 |
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Attention: Xxxx X. Xxxxxx |
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Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
(a) Payment of Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, Company will promptly (and in any event, within 30 days after any
invoice or other statement or notice) pay: (i) all transfer, stamp, mortgage, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue authority in respect of
this Agreement or any of the other Note Documents or any other document or transaction referred to
herein or therein, (ii) all reasonable costs and expenses incurred by or on behalf of
Administrative Agent, Royalty Owner, and Warrant Owner (including attorneys’ fees, consultants’
fees and engineering fees, travel costs and miscellaneous expenses) in connection with (1) the
negotiation, preparation, execution and delivery of the Note Documents, and any and all consents,
waivers or other documents or instruments relating thereto, (2) the filing, recording, refiling and
re-recording of any Note Documents and any other documents or instruments or further assurances
required to be filed or recorded or refiled or re-recorded by the terms of any Note Document, (3)
the borrowings hereunder and other action reasonably required in the course of administration
hereof, or (4) monitoring or confirming (or preparation or negotiation of any document related to)
any Restricted Person’s compliance with any covenants or conditions contained in this Agreement or
in any Note Document, and (iii) all reasonable costs and expenses incurred by or on behalf of any
Holder Party, Royalty Owner, or Warrant Owner (including without limitation attorneys’ fees,
consultants’ fees and accounting fees) in connection with the preservation of any rights under the
Note Documents or the defense or enforcement of any of the Note Documents (including this section),
any attempt to cure any breach thereunder by any Restricted Person, or the defense of any Holder
Party’s, Royalty Owner’s, or Warrant Owner’s exercise of its rights thereunder. In addition to the
foregoing, until all Obligations have been paid in full, Company will also pay or reimburse
Administrative Agent for all reasonable out-of-pocket costs and expenses of Administrative Agent or
its agents or employees in connection with the continuing administration of the Loans and the
related due diligence of Administrative Agent, including travel and miscellaneous expenses and fees
and expenses of Administrative Agent’s outside counsel, reserve engineers and consultants engaged
in connection with the Note Documents.
[Note Purchase Agreement]
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(b) Indemnity. Company agrees to indemnify Royalty Owner, Warrant Owner, and each
Holder Party (each, an “Indemnitee”), upon demand, from and against any and all liabilities,
obligations, broker’s fees, claims, losses, damages, penalties, fines, actions, judgments, suits,
settlements, costs, expenses or disbursements (including reasonable fees of attorneys, accountants,
experts and advisors) of any kind or nature whatsoever (in this section collectively called
“liabilities and costs”) which to any extent (in whole or in part) may be imposed on, incurred by,
or asserted against such Indemnitee growing out of, resulting from or in any other way associated
with any of the ORRI, the Collateral, the Note Documents and the transactions and events (including
the enforcement or defense thereof) at any time associated therewith or contemplated therein
(whether arising in contract or in tort or otherwise). Among other things, the foregoing
indemnification covers all liabilities and costs incurred by any Indemnitee related to any breach
of a Note Document by a Restricted Person, any bodily injury to any Person or damage to any
Person’s property, or any violation or noncompliance with any Environmental Laws by any Indemnitee
or any other Person or any liabilities or duties of any Indemnitee or any other Person with respect
to Hazardous Materials found in or released into the environment.
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY
OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR
CAUSED, IN WHOLE OR IN PART BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE (IN EACH
CASE WHETHER ALLEGED, ARISING OR IMPOSED IN A LEGAL PROCEEDING BROUGHT BY OR AGAINST ANY RESTRICTED
PERSON, ANY INDEMNITEE, OR ANY OTHER PERSON),
provided only that no Indemnitee shall be entitled under this section to receive indemnification
for that portion, if any, of any liabilities and costs which is proximately caused by its own
individual gross negligence or willful misconduct, as determined in a final judgment. If any Person
(including Company or any of its Affiliates) ever alleges such gross negligence or willful
misconduct by any Indemnitee, the indemnification provided for in this section shall nonetheless be
paid upon demand, subject to later adjustment or reimbursement, until such time as a court of
competent jurisdiction enters a final judgment as to the extent and effect of the alleged gross
negligence or willful misconduct. As used in this section the term “Indemnitee” shall refer not
only to Royalty Owner, Warrant Owner and each Holder Party designated as such in Section 1.1 but
also to each director, officer, agent, trustee, attorney, employee, representative and Affiliate of
or for such Person.
Section 12.5.
Joint and Several Liability. All Obligations which are incurred by two
or more Restricted Persons shall be their joint and several obligations and liabilities. All
grants, covenants and agreements contained in the Note Documents shall bind and inure to the
benefit of the parties thereto and their respective successors and assigns; provided, however, that
no Restricted Person may assign or transfer any of its rights or delegate any of its duties or
obligations under any Note Document without the prior consent of Required Holders. Neither Company
nor any Affiliates of Company shall directly or indirectly purchase or otherwise retire any
Obligations owed to any Holder nor will any Holder accept any offer to do so, unless each Holder
shall have received substantially the same offer with respect to the same Percentage Share of the
Obligations owed to it. If Company or any Affiliate of Company at any time purchases some but less than all of the Obligations owed to all Holder Parties, such Holder shall
not be entitled to any rights of any Holder under the Note Documents unless and until Company or
its Affiliates have purchased all of the Obligations.
[Note Purchase Agreement]
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(b) Transfer and Exchange of Notes. Upon surrender of any Note at the principal office
of Administrative Agent for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered Holder or its attorney duly authorized in writing and accompanied by the
address for notices of each transferee of such Note or part thereof), and an assignment agreement
in form and substance acceptable to Administrative Agent whereby the assignee Holder agrees to be
bound by the terms hereof that are applicable to Holders, Company shall execute and deliver, at
Company’s expense, one or more new Notes (as requested by the Holder thereof) of the same series in
exchange therefore and, in the case of any Note, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note; provided, however, that no transfer of any Note
may be made (i) to a transferee who is not an “accredited investor” within the meaning of Rule 501
of Regulation D promulgated under the Securities Act or a Qualified Institutional Buyer (as defined
in Rule 144A promulgated under the Securities Act) and (ii) unless such transfer is made pursuant
to an exemption from registration under the securities laws of the United States including, without
limitation, any resale of any Note under Rule 144A of the Securities Act. Any purported transfer of
a Note or an interest therein which is prohibited hereby shall be null and void ab initio and of no
force or effect whatever. In the case of a transfer of Notes, each such new Note and shall be
payable to such Person as such holder may request and shall be substantially in the form of Exhibit
A. Each such new Note shall be dated and bear interest from the date to which interest shall have
been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall
have been paid thereon. Notes shall not be transferred in denominations of less than $1,000,000,
provided, that if necessary to enable the registration of transfer by a Holder of its entire
holding of Notes, one Note may be in a denomination of less than $1,000,000; provided, further,
that transfers by a Holder and its Affiliates shall be aggregated for purposes of determining
whether or not such
$ 1,000,000 threshold has been reached. If any Holder shall request that the restrictive legend on
a Note be removed, such Holder, if requested by Company, will have the obligation in connection
with such request, as applicable, at such Holder’s expense, of delivering an opinion of counsel in
form and substance reasonably satisfactory to Company, in connection with such request to the
effect that the removal of such restrictive legend would not be in violation of the Securities Act
or any applicable state securities laws.
[Note Purchase Agreement]
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(c) Replacement of Notes. Upon receipt by Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note,
and (i) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it
(provided that if the Holder of such Note is, or is a nominee for, another Holder with a minimum
net worth of at least $5,000,000, such Person’s own unsecured agreement of indemnity shall be
deemed to be satisfactory), or (ii) in the case of mutilation, upon surrender and cancellation
thereof, Company at its own expense shall execute and deliver, in lieu thereof, a new Note of the
same series, dated and, in the case of a Note, bearing interest from the date to which interest
shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.
(a) Notwithstanding the termination of this Agreement and except as otherwise provided herein
or in this subsection (a) or subsection (c) below, Company shall, and shall cause its Subsidiaries
and Affiliates to, maintain the confidentiality of the identities of (i) any Holder (or any holder
of any Obligation other than the Notes); and (ii) any owner of a beneficial interest in the Notes
(collectively, “Holder Confidential Information”) and shall not, without the prior written
consent of the Required Holders, as applicable, disclose any such information to another Person or
use such information for purposes other than those contemplated herein.
(b) Notwithstanding the termination of this Agreement and except as otherwise provided herein
or in this subsection (b) or subsection (c) below, each Holder Party shall maintain the
confidentiality of any information delivered to a Holder Party by or on behalf of Company or any
other Restricted Person in connection with the transactions contemplated by or otherwise pursuant
to the Note Documents that is (a) proprietary or confidential in nature and (b) is clearly marked
“Confidential — Subject to Confidentiality and Disclosure Restrictions” (collectively, the
“Company Confidential Information”) and shall not, without the prior written consent of
Company, disclose any such information to another Person or use such information for purposes other
than those contemplated herein.
(c) Subject to Section 12.7(d), each Restricted Person may disclose Holder Confidential
Information to its directors, officers, members, partners, employees, and agents (including
attorneys, accountants, and consultants) to whom such disclosure is reasonably necessary for the
execution or effectuation hereof, provided such Restricted Person notifies all such Persons that
the Holder Confidential Information disclosed to them is subject to this Agreement and requires
them not to disclose or use such information in breach of this Agreement. Subject to Section
12.7(d), each Holder Party may disclose Company Confidential Information to its respective
directors, officers, members, partners, separate account participants, employees, and agents
(including attorneys, accountants, and consultants) to whom such disclosure is reasonably necessary
for the execution or effectuation hereof, provided such Persons are obligated to hold such Company
Confidential Information in confidence as contemplated in this Agreement. Each Restricted Person
may also disclose Holder Confidential Information in filings with the Securities and Exchange
Commission to the extent required to be disclosed therein or to any Person that purchases any
security of Company or Parent, provided that the sale of such security must be permitted hereunder
and that such Person has agreed in writing prior to its receipt of such Holder Confidential
Information to be bound by the provisions
of this Section 12.7.
[Note Purchase Agreement]
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Subject to Section 12.7(d), each Holder Party may also disclose Company
Confidential Information to (i) any other Holder Party or holder of any participation in Notes,
(ii) any Person to which it sells or offers to sell such Notes or any part thereof or any
participation therein (if such Person has agreed prior to its receipt of such Company Confidential
Information to be bound by the provisions of this Section 12.7), (iii) any federal or state
regulatory authority having jurisdiction over it, (iv) the National Association of Insurance
Commissioners, the National Association of Securities Dealers or any similar organization, or any
nationally recognized rating agency that requires access to information about its investment
portfolio, (v) to effect compliance with any Law applicable to it, (vi) in response to any subpoena
or other legal process, (vii) in connection with any litigation to which it is a party or (viii) if
an Event of Default has occurred and is continuing, to the extent it may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of
the rights and remedies under the Note Documents.
(d) If a Restricted Person or a Holder Party is requested or required by legal process
(including law or regulation, oral questions, interrogatories, request for information or
documents, subpoena, and civil investigative demand) to disclose any Holder Confidential
Information or Company Confidential Information, then, to the extent legally permitted to do so,
such Restricted Person or such Holder Party (as applicable) shall promptly notify Company and
Administrative Agent, as applicable, of such request prior to complying with such process so that
the Restricted Persons and the Holder Parties (as applicable) may seek an appropriate protective
order or waive the respondent’s compliance with this Section. If, after a Restricted Person gives
such notice to Administrative Agent or a Holder Party gives such notice to Company and after
providing the Restricted Persons and the Holder Parties a reasonable opportunity to obtain a
protective order or to grant such waiver (so long as the granting of such time does not put such
Restricted Person or Holder Party in breach of its obligations to disclose), a Restricted Person or
a Holder Party is nonetheless legally compelled to disclose such information, such Restricted
Person or Holder Party may do so without violating this section.
(e) Any Holder Confidential Information or Company Confidential Information that becomes
publicly available through no breach by the relevant party hereunder or a breach by a third party
of a confidential obligation to the relevant party hereunder shall no longer be deemed to be Holder
Confidential Information or Company Confidential Information.
(a) Except to the extent that the Law of another jurisdiction is expressly
elected in a Note Document, this Agreement and the other Note Documents shall be governed by and
construed in accordance with the Laws of the State of New York.
[Note Purchase Agreement]
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(b) Company hereby irrevocably (i) submits itself to the non-exclusive jurisdiction of the state
and federal courts sitting in the State and County of
New York, (ii) agrees and consents that service of process may be made upon it and any of its Subsidiaries in any legal
proceeding relating to the Note Documents or the Obligations by any means allowed under New York or
federal law, and (iii) waives any objection that it may now or hereafter have to the venue of any
such proceeding being in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
(c) Company hereby makes the foregoing submissions, agreements, consents and waivers on
behalf of and with respect to each of its Subsidiaries, and each Guarantor (by its execution of a
guaranty of this Agreement) hereby also makes such submissions, agreements, consents and waivers
for itself.
Section 12.9.
Limitation on Interest. Holder Parties, Restricted Persons and the
other parties to the Note Documents intend to contract in strict compliance with applicable usury
Law from time to time in effect. In furtherance thereof such persons stipulate and agree that none
of the terms and provisions contained in the Note Documents shall ever be construed to provide for
interest in excess of the maximum amount of interest permitted to be contracted for, charged, or
received by applicable Law from time to time in effect. Neither any Restricted Person nor any
present or future guarantors, endorsers, or other Persons hereafter becoming liable for payment of
any Obligation shall ever be liable for unearned interest thereon or shall ever be required to pay
interest thereon in excess of the maximum amount that may be lawfully contracted for, charged, or
received under applicable Law from time to time in effect, and the provisions of this section shall
control over all other provisions of the Note Documents which may be in conflict or apparent
conflict herewith.
Section 12.10.
Termination; Limited Survival. In its discretion Company may at any
time that no Obligations are owing (other than indemnity obligations and similar obligations that
survive the termination of this Agreement for which no notice of a claim has been received by
Company and other than Obligations under the Warrants that arise after the Notes have been paid in
full) elect in a written notice delivered to Administrative Agent to terminate this Agreement. Upon
receipt by Administrative Agent of such a notice, if no such Obligations are then owing this
Agreement and all other Note Documents (other than the Warrant) shall thereupon be terminated and
the parties thereto released from all prospective obligations thereunder, provided that,
notwithstanding the foregoing or anything in any Note Agreement to the contrary, all of the
following shall survive any termination of this Agreement or any other Note Document: (a) any
waivers or admissions made by any Restricted Person in any Note Document, (b) any obligations that
any Person may have to indemnify or compensate any Holder Party, and (c) the provisions of Sections
2.10 and this Section 12.10. At the request and expense of Company, Administrative Agent shall
prepare and execute all necessary instruments to reflect and effect such termination of the Note
Documents. Administrative Agent is hereby authorized to execute all such instruments on behalf of
all Holders, without the joinder of or further action by any Holder. In particular, and without
limitation of any other provision of a Note Document, the obligations of the Restricted Persons
under the Warrant and under Sections 2.10, 3.4, 3.5, 12.4, 12.8, 12.9 and 12.15 of this Agreement shall survive the termination of this Agreement and the release of the
Collateral.
[Note Purchase Agreement]
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Section 12.11.
Severability. If any term or provision of any Note Document shall be
determined to be illegal or unenforceable all other terms and provisions of the Note Documents
shall nevertheless remain effective and shall be enforced to the fullest extent permitted by
applicable Law.
Section 12.12.
Counterparts; Fax. This Agreement may be separately executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to constitute one and the same Agreement. This Agreement and the Note
Documents may be validly executed and delivered by facsimile or other electronic transmission.
Section 12.13.
Third Party Beneficiaries. The Restricted Persons agree that each
Indemnitee that is not a signatory to this Agreement (collectively, the “
Third Party
Beneficiaries”) is an express and intended third party beneficiary of the representations,
agreements and promises made in this Agreement, which are made for the benefit of Holders,
Administrative Agent and each Third Party Beneficiary (which benefits are immediate and not
incidental). Except as stated above in this section, there are no third party beneficiaries of this
Agreement.
Section 12.14.
USA PATRIOT Act Notice. Pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001), and as from time to time
amended, herein called the “
Patriot Act”), each Holder Party that is subject to the Patriot
Act hereby notifies Company that it is required to obtain, verify and record information that
identifies Company, which information includes the name and address of Company and other
information that will allow such Holder Party to identify Company in accordance with the Patriot
Act.
(a) waives, to the maximum extent not prohibited by Law, any right it may have to a
trial by jury in respect of any litigation based hereon, or directly or indirectly at any time
arising out of, under or in connection with the Note Documents or any transaction contemplated
thereby or associated therewith, before or after maturity;
[Note Purchase Agreement]
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(b) waives, to the maximum extent not prohibited by Law, any right it may have
to claim or recover in any such litigation any “Special Damages” as defined below,
(c) certifies that no party hereto and no representative or agent or counsel for
any party hereto has represented, expressly or otherwise, or implied that such party would not, in
the event of litigation, seek to enforce the foregoing waivers, and
(d) acknowledges that it has been induced to enter into
this Agreement, the other Note Documents and the
transactions contemplated hereby and thereby by, among other
things, the mutual waivers and certifications contained in this section.
As used in this section, “Special Damages” includes all special, consequential, exemplary, or
punitive damages (regardless of how named), but does not include any payments or funds that any
party hereto has expressly promised to pay or deliver to any other party hereto.
Section 12.16.
Amendment and Reconveyance Fee. In consideration for Administrative
Agent and Holders entering into this Agreement and the reconveyance by Royalty Owner of the XXXXx,
Company shall pay to Administrative Agent a non-refundable $1,950,000 amendment and reconveyance
fee (the “
Amendment and Reconveyance Fee”), which Amendment and Reconveyance Fee has been
fully earned as of the date hereof and shall be due and payable on the date hereof.
Section 12.17.
Amendment and Restatement. This Agreement and the Notes amend and
restate in their entirety (but do not novate or extinguish) the Existing Note Purchase Agreement
and the promissory notes included in the Existing Credit Documents, and from and after the date
hereof, the terms and provisions of such loan agreements and promissory notes shall be superseded
by the terms and provisions hereof and of the Notes, respectively. Company hereby agrees that (a)
the Existing Obligations, and all accrued and unpaid interest thereon, shall be Indebtedness of
Company outstanding under and governed by this Agreement and evidenced by the Notes, and (b) all
Liens securing the Existing Obligations shall continue in full force and effect to secure the
Obligations and be evidenced and governed by the Security Documents.
[The remainder of this page is intentionally left blank]
[Note Purchase Agreement]
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COMPANY:
RIO VISTA XXXXX LLC
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/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx |
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Manager |
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[Note Purchase Agreement]
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ADMINISTRATIVE AGENT: |
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TCW ASSET MANAGEMENT COMPANY,
Administrative Agent |
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By: |
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HOLDERS: |
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TCW ENERGY FUND X — NL, L.P.,
a California limited partnership |
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TCW (ENERGY X) LLC, its General Partner: |
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TCW Asset Management Company, its Managing Member |
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[Note Purchase Agreement]
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TCW ENERGY FUND XB — NL, L.P.,
a California limited partnership |
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TCW (ENERGY X) LLC, its General Partner: |
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TCW Asset Management Company, its Managing Member |
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TCW ENERGY FUND XC — NL, L.P.,
a California limited partnership |
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TCW Asset Management Company, its Managing Member |
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[Note Purchase Agreement]
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TCW ENERGY FUND XD — NL, L.P.,
a California limited partnership |
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TCW (ENERGY X) LLC, its General Partner: |
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TCW Asset Management Company, its Managing Member |
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TCW ASSET MANAGEMENT COMPANY, a California corporation, as Investment Manager under the
Amended and Restated Investment Management and Custody Agreement
dated as of December 3, 2003 among Ensign Peak Advisors,
Inc., TCW Asset Management Company and Trust Company of
the West, a California trust company, as Sub-Custodian |
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[Note Purchase Agreement]
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TCW ASSET MANAGEMENT COMPANY, a California corporation, as Investment Manager under the Amended
and Restated Investment Management and Custody Agreement dated as of December 11, 2003 among Xxxxx
X. Xxxxxxx, Xx. Partition Trust, Xxxxx X. Xxxxxxx, Xx. Trust, Xxxx Xxxxxxx Xxxxxxx Xxxxxx
Partition Trust, Xxxx Xxxxxxx Uihlien Trust, TCW Asset Management Company and Trust Company of the
West, a California trust company, as Sub-Custodian |
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Title: |
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By:
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/s/ [ILLEGIBLE]
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TCW ASSET MANAGEMENT COMPANY, a California corporation, as Investment Manager under the Amended and
Restated Investment Management and Custody Agreement dated as of March 18, 2004 among ING Life
Insurance and Annuity Company, TCW Asset Management Company and Trust Company of the West, a
California trust company, as Sub-Custodian |
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By:
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/s/ [ILLEGIBLE]
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Title: |
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[Note Purchase Agreement]
SCHEDULE 1
DISCLOSURE SCHEDULE
To supplement the following sections of the Agreement of which this Schedule is a part,
Company hereby makes the following disclosures:
[Note Purchase Agreement]
SCHEDULE 2
SECURITY SCHEDULE
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Restated and Amended Mortgage, Assignment, Security Agreement, Fixture Filing and Financing
Statement by Company in favor of Administrative Agent. |
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Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing and Financing
Statement by GO LLC in favor of Administrative Agent. |
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Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing and Financing
Statement by MV Pipeline in favor of Administrative Agent. |
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Security Agreement executed by Restricted Persons in favor of Administrative Agent, as
secured party. |
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Guaranty by Restricted Persons (other than Company) in favor of Administrative Agent. |
[Note Purchase Agreement]
SCHEDULE 3
INSURANCE SCHEDULE
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Insurance by Company: |
Company shall procure (or cause to be procured by Operator) and maintain in full force and effect
at all times on and after the Closing Date (unless otherwise specified below) and continuing
throughout the term of this Agreement, insurance policies with insurance companies authorized to do
business where operations are conducted (if required by law or regulation) with (i) a A.M. Best
rating of “A-” or better and an financial size category of “IX” or higher, (ii) a S&P financial
strength rating of “A-” or higher, or (iii) other companies acceptable to TCW Asset management
Company (“TCW”), with limits and coverage provisions sufficient to satisfy the Company’s material
contracts, but in no event less than provisions set forth below.
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Workers’ Compensation Insurance: Workers’ compensation insurance as
required by applicable Laws. A maximum deductible or self-insured retention of $25,000
per occurrence or as approved by TCW shall be allowed. |
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Employer’s Liability Insurance: Employer’s liability insurance for
Company’s liability arising out of injury to or death of employees of Company in the
amount of $1,000,000 per accident. A maximum deductible or self-insured retention of
$25,000 per occurrence or as approved by TCW shall be allowed. |
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General Liability Insurance: Liability insurance on an occurrence basis
against claims for Company’s liability arising out of claims for personal injury
(including bodily injury and death) and property damage. Such insurance shall provide
coverage for products-completed operations, liability assumed under contract, broad
form property damage, personal injury, underground resources and equipment and
independent contractors with a $1,000,000 minimum limit per occurrence for combined
bodily injury and property damage. The policy shall not exclude coverage for action
over claims without limitations as respects the sole negligence of Additional Insured.
A maximum deductible or self-insured retention of $25,000 per occurrence or as approved
by TCW shall be allowed. |
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Automobile Liability Insurance: Automobile liability insurance for
Company’s liability arising out of claims for bodily injury and property damage
covering all owned (if any), leased, non-owned and hired vehicles of Company, including
loading and unloading, with a $1,000,000 minimum limit per accident for combined bodily
injury and property damage and containing appropriate no-fault insurance provisions
wherever applicable. A maximum deductible or self-insured retention of $25,000 per
occurrence or as approved by TCW shall be allowed. |
[Note Purchase Agreement]
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Pollution Liability Insurance: Pollution legal liability insurance, in
an amount not less that $ 1,000,000 per occurrence insuring for (i) bodily injury or
property damage arising out of sudden and accidental pollution, and (ii) cleanup of
pollutants on
Company’s premises or which have migrated beyond Company’s premises. A maximum
deductible or self-insured retention of $25,000 per occurrence or as approved by TCW
shall be allowed. The Pollution Liability may be part of the General Liability
coverage. |
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Excess Liability Insurance: Excess liability insurance on an occurrence basis
covering claims (on at least a following form basis) in excess of the underlying
insurance described in the foregoing subsections (2), (3), (4) and (5), with a
$10,000,000 minimum limit per occurrence. Such excess liability shall also
include coverage for bodily injury or property damage to third parties arising out
of sudden and accidental off-site pollution. The policy shall drop down to cover
exhausted primary policies with a self-insured retention not to exceed $25,000. |
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The amounts of insurance required in the foregoing subsections (2), (3), (4), and this
subsection (6) may be satisfied by Company purchasing coverage in the amounts specified or
by any combination of primary and excess insurance, so long as the total amount of
insurance meets the requirements specified above. |
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For properties in which Company is a non-operator, and the operator is providing insurance
for the joint account, Company may use the operator’s coverage; however, if the limits the
operator provides are less than the limits required by this agreement, Company will procure
excess insurance to bring the limits to the required amounts. |
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Aircraft Liability Insurance: If Company uses an aircraft (fixed or rotary wing) that
is owned, operated or chartered by Company, Aircraft liability insurance for liability arising
out of the operation of such aircraft. The insurance shall be provided for a combined single
limit not less than $10,000,000 each occurrence and such limit shall apply to bodily injury
(including passengers) and property damage liability. Such insurance shall (i) name TCW as
additional insured, (ii) include an insurer’s waiver of subrogation in favor of the additional
insureds, (iii) state that it is primary insurance as regards the additional insureds and (iv)
contain a cross-liability or severability of interest clause. In the event the aircraft hull
is insured such insurance shall provide for an insurer’s waiver of subrogation rights in favor
of Company. In the event Company charters aircraft, the foregoing insurance and evidence of
insurance may be furnished by the owner of the aircraft. |
|
|
(8) |
|
Operators Excess Expense Insurance (Control of Well): Company is required to maintain
this with limits of no less than 5 times the Dry Hole Cost of the well(s). Coverage shall
include Well Control, Sudden & Accidental Pollution, Evacuation Expenses, Replacement Cost
Redrill. The policy shall provide Care, Custody and Control limits of no less than $1,000,000,
and shall include coverage for damage to drilling/workover rigs caused by “unsound locations”
The policy will have a Priority of Payments Clause, and claims shall be paid in the following
order; (1) Well Control, (2) Restoration and Redrill, and (3) Pollution. Deductible /
Retention shall not exceed $200,000 for 100% interest. |
[Note Purchase Agreement]
Schedule 3 — Page 2
|
(9) |
|
Property Damage Insurance / Business Interruption: Property damage
insurance on an “all risk” basis, including coverage against damage or loss caused
by earth movement (including but not limited to earthquake, landslide, subsidence
and volcanic eruption), flood, and windstorm. |
|
(a) |
|
Property Insured: The property damage insurance shall
provide coverage for all property owned by or in the care, custody or control
of Company, or in which Company has any interest, and shall include coverage
while in transit to jobsites and while operational. |
|
|
(b) |
|
Additional Coverages: The property damage insurance
shall insure (i) when actual exposure exceed the applicable property
deductibles, transit and off-site repair, including marine and air transit with
sub-limits sufficient to insure the full replacement value of the property or
equipment prior to its being moved to or from the locations where operations
are conducted and while located away from the locations where operations are
conducted, (ii) salvage expenses with a minimum limit of 25% of the loss (iii)
the cost of preventive measures to reduce or prevent a loss (xxx & labor), (v)
property in the course of construction or installation. |
|
|
(c) |
|
Sum Insured: The property damage policy shall (i) value
losses at their repair or replacement cost, or stated value, (ii) provide a
limit not less than the actual cash value of the property insured. |
|
|
(d) |
|
Deductibles: The property damage deductibles shall not
exceed $25,000 unless previously approved by TCW. |
For properties in which Company is a non-operator, and the operator is providing insurance
for the joint account, Company may use the operator’s coverage; however, if the limits the
operator provides are less than the limits required by this agreement, Company will procure
excess insurance to bring the limits to the required amounts. If the operator is providing
insurance coverage Company shall request Certificates of Insurance from operator evidencing
coverages, and providing Company with Additional Insured status and Waivers of Subrogation.
(B) |
|
Amendment of Requirements: |
|
(1) |
|
Amendment by TCW: TCW may at any time amend the requirements and
approved insurance companies of this Section due to (i) new information not known by
the TCW on the Closing Date which poses a material risk to Company’s assets or
business, (ii) changed circumstances after the Closing Date which in the reasonable
judgment of TCW renders such coverage materially inadequate, or (iii) inflationary
factors and other changes in valuations. Promptly following the receipt of a notice
from TCW, Company will from time to time make such modifications to the amounts of any
insurance policy as TCW specifies in that notice to take account of the foregoing. |
[Note Purchase Agreement]
Schedule 3 — Page 3
(C) |
|
Company Conditions and Requirements: |
|
(1) |
|
Loss Notification: Company shall promptly notify TCW of any single loss or
event likely to give rise to a claim against an insurer for an amount in excess of $100,000
covered by any insurance maintained pursuant to this schedule |
|
|
(2) |
|
Loss Adjustment and Settlement: A loss under the insurance policies providing
property damage or business interruption shall be adjusted with the insurance companies,
including the filing in a timely manner of appropriate proceedings, by Company, subject to the
approval of TCW if such loss is in excess of $500,000. In addition Company may in its
reasonable judgment consent to the settlement of any loss, provided that in the event that the
amount of the loss exceeds $500,000 the terms of such settlement is concurred with by TCW. |
|
|
(3) |
|
Compliance With Policy Requirements: Company shall not violate or permit to be
violated any of the conditions, provisions or requirements of any insurance policy required by
this Section, and Company shall perform, satisfy and comply with, or cause to be performed,
satisfied and complied with, all conditions, provisions and requirements of all insurance
policies. |
|
|
(4) |
|
Waiver of Subrogation: Company hereby waives any and every claim for recovery from
TCW for any and all loss or damage covered by any of the insurance policies to be maintained
under this Agreement to the extent that such loss or damage is recovered under any such
policy. If the foregoing waiver will preclude the assignment of any such claim to the extent
of such recovery, by subrogation (or otherwise), to an insurance company (or other person),
Company shall give written notice of the terms of such waiver to each insurance company which
has issued, or which may issue in the future, any such policy of insurance (if such notice is
required by the insurance policy) and shall cause each such insurance policy to be properly
endorsed by Company thereof to, or to otherwise contain one or more provisions that, prevent
the invalidation of the insurance coverage provided thereby by reason of such waiver. |
|
|
(5) |
|
Evidence of Insurance: Prior to the Closing Date and on an annual basis at least 10
days prior to each policy anniversary, Company shall furnish TCW with (1) certificates of
insurance or binders, in a form acceptable to TCW, evidencing all of the insurance required by
the provisions of this Section and (2) a schedule of the insurance policies held by or for
the benefit of Company and required to be in force by the provisions of this Section. Upon
request, Company will promptly furnish TCW with copies of all insurance policies, binders and
cover notes or other evidence of such insurance relating to the insurance required to be
maintained by Company. |
|
|
(6) |
|
Reports: Concurrently with the furnishing of the certification referred to in Section
(5), Company shall furnish TCW with a report of Company’s insurance broker, signed by an
officer of the broker, stating that in the opinion of such broker, the insurance then carried
or to be renewed is in accordance with the terms of this Section and attaching an updated copy
of the schedule of insurance required by Section (5) above. |
[Note Purchase Agreement]
Schedule 3 — Page 4
|
|
|
In addition Company will advise TCW in writing promptly of (1) any material changes
in the coverage or limits provided under any policy required by this Section and (2)
any default in the payment of any premium and of any other act or omission on the
part of Company which may invalidate or render unenforceable, in whole or in part,
any insurance being maintained by Company pursuant to this Section. |
(D) |
|
Insurance Policy Conditions and Requirements |
|
(1) |
|
Policy Cancellation and Change: All policies of insurance required to
be maintained pursuant to this Section shall be endorsed so that if at any time they
are canceled, or their coverage is reduced (by any party including the insured) so as
to affect the interests of the TCW, such cancellation or reduction shall not be
effective as to TCW for 60 days, except for non-payment of premium which shall be for
10 days, after receipt by TCW of written notice from such insurer of such cancellation
or reduction. |
|
|
(2) |
|
Separation of Interests: All policies (other than in respect to workers
compensation insurance) shall insure the interests of TCW regardless of any breach or
violation by Company or any other Person of warranties, declarations or conditions
contained in such policies, any action or inaction of Company’s or others, or any
foreclosure relating to the business or assets of Company or any change in ownership of
all or any portion of such business or assets. |
|
|
(3) |
|
Waiver of Subrogation: All policies of insurance to be maintained by
the provisions of this Section shall provide for waivers of subrogation in favor of TCW
and its respective officers and employees. |
|
|
(4) |
|
Endorsements: All policies of insurance referred to in this Schedule
shall be endorsed to name TCW and its respective officers and employees as Additional
Insureds. |
|
|
|
|
All policies of Liability insurance referred to in this Agreement shall be endorsed
as follows: |
|
(a) |
|
To provide a severability of interests and cross liability clause; |
|
|
(b) |
|
That the insurance shall be primary and non-contributory
as respects Additional Insureds. |
|
(5) |
|
Payment of Loss Proceeds: All policies providing insurance on
property mortgaged to TCW shall be endorsed to include TCW Asset Management Company as a Loss
Payee, as its interests may appear. |
(E) |
|
Acceptable Policy Terms and Conditions: |
All policies of insurance required to be maintained pursuant to this Section shall contain terms
and conditions reasonably acceptable to TCW after consultation with the Insurance Advisor.
[Note Purchase Agreement]
Schedule 3 — Page 5
SCHEDULE 4
HOLDERS SCHEDULE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allocation |
|
|
|
|
|
|
Maximum |
|
Note Holder |
|
% |
|
|
Commitment |
|
|
Credit Amount |
|
TCW Energy Fund X-NL, L.P., a
California limited partnership |
|
|
23.03872 |
% |
|
$ |
5,471,696.00 |
|
|
$ |
6,911,616 |
|
TCW Energy Fund XB-NL, L.P., a
California limited partnership |
|
|
28.62534 |
% |
|
$ |
6,798,518.24 |
|
|
$ |
8,587,602 |
|
TCW Energy Fund XC-NL, L.P., a
California limited partnership |
|
|
9.48725 |
% |
|
$ |
2,253,221.88 |
|
|
$ |
2,846,175 |
|
TCW Energy Fund XD-NL, L.P., a
California limited partnership |
|
|
21.12823 |
% |
|
$ |
5,017,954.63 |
|
|
$ |
6,338,469 |
|
Trust Company of the West as Sub-Custodian under the Amended and
Restated Investment Management and
Custody Agreement dated as of
December 3, 2003 among Ensign Peak
Advisors, Inc., TCW Asset
Management Company and Trust
Company of the West |
|
|
6.81556 |
% |
|
$ |
1,618,695.50 |
|
|
$ |
2,044,668 |
|
ING Life Insurance and Annuity
Company |
|
|
6.81556 |
% |
|
$ |
1,618,695.50 |
|
|
$ |
2,044,668 |
|
Trust Company of the West as Sub-Custodian under the Amended and
Restated Investment Management and
Custody Agreement dated as of
December 11, 2003 among Xxxxx X.
Xxxxxxx, Xx. Partition Trust, Xxxxx X.
Xxxxxxx, Xx. Trust, Xxxx Xxxxxxx
Xxxxxxx Xxxxxx Partition Trust, Xxxx
Xxxxxxx Uihlien Trust, TCW Asset
Management Company and Trust
Company of the West |
|
|
4.08934 |
% |
|
$ |
971,218.25 |
|
|
$ |
1,226,802 |
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
100.00000 |
% |
|
$ |
23,750,000 |
|
|
$ |
30,000,000 |
|
|
|
|
|
|
|
|
|
|
|
[Note Purchase Agreement]
SCHEDULE 5
ORGANIZATIONAL STRUCTURE
[Note Purchase Agreement]
SCHEDULE 6
APPROVED PLAN OF DEVELOPMENT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AFE Gross |
|
|
|
|
|
|
AFE Net |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Drilling & |
|
|
|
|
|
|
Drilling & |
|
|
|
|
|
Project or |
|
|
|
Target |
|
|
Target |
|
|
|
|
|
|
Current |
|
|
Completion |
|
|
Current |
|
|
Completion |
|
|
|
|
|
Well |
|
Description |
|
Depth |
|
|
Formation |
|
|
Pipeline |
|
|
Operator |
|
|
Cost |
|
|
WI |
|
|
Cost |
|
|
|
1 |
|
|
2nd Realty |
|
Drill |
|
|
1,900 |
|
|
Hartshome |
|
Xxxxxxx |
|
XX |
|
|
175,000 |
|
|
|
0.4003 |
|
|
|
70,044 |
|
|
2 |
|
|
Ace 2-36 |
|
Drill |
|
|
5,500 |
|
|
H/Hartshome |
|
PetroQuest |
|
GM |
|
|
550,000 |
|
|
|
0.5100 |
|
|
|
280,500 |
|
|
3 |
|
|
Ace 3-36 |
|
Drill |
|
|
5,500 |
|
|
H/Hartshome |
|
PetroQuest |
|
GM |
|
|
550,000 |
|
|
|
0.5100 |
|
|
|
280,500 |
|
|
4 |
|
|
Xxxxx 3A-32 |
|
Drill |
|
|
1,900 |
|
|
Hartshome |
|
Xxxxxxx |
|
XX |
|
|
175,000 |
|
|
|
0.4668 |
|
|
|
81,694 |
|
|
5 |
|
|
Xxxxxx 2A-1 |
|
Drill |
|
|
1,900 |
|
|
Hartshome |
|
Xxxxxxx |
|
XX |
|
|
175,000 |
|
|
|
0.3780 |
|
|
|
66,150 |
|
|
6 |
|
|
Xxxxxx 0X-0 Xxxxxx |
|
Xxxxx |
|
|
2,100 |
|
|
Hartshome |
|
Xxxxxxx |
|
XX |
|
|
190,000 |
|
|
|
0.7997 |
|
|
|
151,943 |
|
|
7 |
|
|
Season 2-7 |
|
Drill |
|
|
5,500 |
|
|
Hartshome |
|
Sem Gas |
|
GM |
|
|
550,000 |
|
|
|
0.8495 |
|
|
|
467,225 |
|
|
8 |
|
|
Kindred 1D-26 |
|
Drill |
|
|
4,500 |
|
|
Xxxxxxxx |
|
XX Pipeline |
|
GM |
|
|
300,000 |
|
|
|
0.3333 |
|
|
|
99,990 |
|
|
9 |
|
|
Xxxxx 3H-31 |
|
Drill |
|
|
5,500 |
|
|
H/Booch |
|
Xxxxxxx |
|
XX |
|
|
550,000 |
|
|
|
0.6914 |
|
|
|
380,270 |
|
|
10 |
|
|
Peoples Bank 1-31 |
|
Drill |
|
|
4,000 |
|
|
Xxxxxx |
|
XX Pipeline |
|
GM |
|
|
400,000 |
|
|
|
0.5100 |
|
|
|
204,000 |
|
|
11 |
|
|
Xxxxxxxx 2A-1 |
|
Drill |
|
|
1,900 |
|
|
Hartshome |
|
Xxxxxxx |
|
XX |
|
|
175,000 |
|
|
|
0.6119 |
|
|
|
107,083 |
|
|
12 |
|
|
Xxxxxx 1D-31 |
|
Drill |
|
|
4,500 |
|
|
Xxxxxxxx |
|
XX Pipeline |
|
GM |
|
|
300,000 |
|
|
|
0.3333 |
|
|
|
99,990 |
|
|
13 |
|
|
Urquart 2-29 |
|
Drill |
|
|
1,700 |
|
|
Hartshome |
|
MV Pipeline |
|
GM |
|
|
150,000 |
|
|
|
0.6000 |
|
|
|
90,000 |
|
|
14 |
|
|
Urquart 1-29 |
|
Re-Work |
|
|
|
|
|
Xxxxxxxx |
|
XX Pipeline |
|
GM |
|
|
25,000 |
|
|
|
0.6000 |
|
|
|
15,000 |
|
|
15 |
|
|
Canadian 2H |
|
Re-Work |
|
|
|
|
|
H/Hartshome |
|
PetroQuest |
|
GM |
|
|
100,000 |
|
|
|
0.3076 |
|
|
|
30,760 |
|
|
16 |
|
|
Canadian 3H |
|
Re-Work |
|
|
|
|
|
H/Hartshome |
|
PetroQuest |
|
GM |
|
|
100,000 |
|
|
|
0.3076 |
|
|
|
30,760 |
|
|
17 |
|
|
Canadian 2H |
|
Re-Work |
|
|
|
|
|
Union Valley |
|
PetroQuest |
|
GM |
|
|
25,000 |
|
|
|
0.3076 |
|
|
|
7,690 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,463,598 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Note Purchase Agreement]
EXHIBIT A
FORM OF PROMISSORY NOTE
FOR VALUE RECEIVED, Rio Vista Xxxxx LLC, an Oklahoma limited liability
company (the “Company”), hereby promises to pay to
[ ]
or its registered assigns (the “Holder”), in the manner provided in the Note Purchase Agreement referred to below, the
principal sum of [ ] or, if less, the amount paid or lent by the Holder under the
Note Purchase Agreement, in lawful money of the United States of America and in immediately
available funds, on or before the Maturity Date. The undersigned also promises to pay to the Holder
hereof interest on the unpaid principal amount of this Promissory Note, in like money, at the rate
set forth in, and payable in accordance with that certain Note Purchase Agreement, as amended,
modified or supplemented from time to time, dated as of
November 19, 2007 (as amended, supplemented,
or restated from time to time, the “Note Purchase Agreement”) (capitalized terms used but
not defined herein shall have the meanings ascribed to them in the Note Purchase Agreement), among
Company, TCW Asset Management Company, as Administrative Agent, and certain Holders identified
therein.
This Promissory Note is one of the “Notes” issued pursuant to the Note Purchase Agreement.
Payments of interest shall be computed in accordance with the Note Purchase Agreement, and payments
of interest and principal shall be payable at the times and in the amounts provided in the Note
Purchase Agreement, until this Promissory Note shall be paid in full. Payments of interest are to
be made in lawful money of the United States of America. This Note is given in partial renewal and
extension of (but does not novate or extinguish) the Existing Obligations.
The Note Purchase Agreement provides for the acceleration of the maturity of this Promissory
Note upon the occurrence of certain events and for prepayments of this Promissory Note upon the
terms and conditions specified therein.
This Promissory Note is entitled to the benefits provided in the Note Documents to the extent
provided in said agreements.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE SECURITIES EVIDENCED BY THIS INSTRUMENT ARE SUBJECT TO THE TERMS OF A CERTAIN NOTE
PURCHASE AGREEMENT DATED AS OF NOVEMBER 19, 2007 AMONG RIO VISTA XXXXX LLC, THE HOLDERS IDENTIFIED
THEREIN, AND TCW ASSET MANAGEMENT COMPANY, AS
ADMINISTRATIVE AGENT, A COPY OF WHICH IS ON FILE AT THE OFFICES OF STEADFAST RESOURCES, INC. AND
WILL BE FURNISHED BY RIO VISTA XXXXX LLC TO THE HOLDER HEREOF UPON REQUEST.
[Note Purchase Agreement]
This Promissory Note is a registered Promissory Note and, as provided in the Note Purchase
Agreement, upon surrender of this Promissory Note for registration of transfer or exchange (and in
the case of a surrender for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered Holder of this Promissory Note or such
Holder’s attorney duly authorized in writing pursuant to Section 12.6(b) of the Note
Purchase Agreement), one or more new Promissory Notes for a like aggregate principal amount will be
issued to, and registered in the name of, the transferee. Prior to the due presentment for
registration and transfer, Company may treat the Person in whose name this Promissory Note is
registered as the Holder and the owner of this Promissory Note for the purpose of receiving payment
and for all other purposes of this Promissory Note and the Note Purchase Agreement. Notwithstanding
anything to the contrary herein, the right to receive payments of interest and principal under this
Promissory Note shall be transferable only upon surrender for cancellation of this Promissory Note,
and the issuance of a new Promissory Note registered in the name of the transferee. In addition,
the Administrative Agent shall maintain a register in which it shall record the name of the Holder
or any transferee, and no transfer shall be valid unless so registered.
[Remainder
of page intentionally left blank.]
[Note Purchase Agreement]
Exhibit A — Page 2
This Promissory Note shall be governed by, and construed in accordance with, the laws of the
State of New York.
|
|
|
|
|
|
RIO VISTA XXXXX LLC
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
[Note Purchase Agreement]
Exhibit A — Page 3
EXHIBIT B
FORM OF BORROWING NOTICE
Reference is made to that certain Note Purchase Agreement, as amended, modified or
supplemented from time to time, dated as of November 19, 2007 (the “Note Purchase
Agreement”) (capitalized terms used but not defined herein shall have the meanings ascribed to
them in the Note Purchase Agreement), among Rio Vista Xxxxx LLC, an Oklahoma limited liability
company (the “Company”), certain Holders identified therein, and TCW Asset Management
Company, as Administrative Agent.
1. |
|
Company hereby requests a Borrowing on [ ] in an amount equal to $ in accordance with the provisions of Section 2.3 of the Note Purchase
Agreement. The proceeds of this Borrowing shall be initially applied to the Up-Front Payment
described in Section 2.6(d) of the Note Purchase Agreement and all expenses payable
pursuant to Section 12.4 of the Note Purchase Agreement, and then the net remaining
balance (the “Net Balance”) of this Borrowing shall be applied to the Company’s
account, as detailed below: |
|
|
|
You are requested to pay the Net Balance to Account No. at [name of bank]. |
|
2. |
|
Company hereby certifies as follows: |
|
(a) |
|
All representations and warranties made by any Person in any Note Document are
true in all respects on and as of the date of the requested Borrowing as if such
representations and warranties had been made as of the date of such Borrowing, except
to the extent that such representation or warranty was made as of a specific date or
updated, modified or supplemented as of a subsequent date with the consent of Required
Holders and Administrative Agent. |
|
|
(b) |
|
All representations and warranties made by Seller in the Acquisition
Documents are true in all respects as of the Closing Date. |
|
|
(c) |
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All of the conditions set forth in Sections 4.1
and 4.2 of the
Note Purchase Agreement have been satisfied. |
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(d) |
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The Borrowing is to be used solely for the purposes described in Section
2.5 of the Note Purchase Agreement. |
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(e) |
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There does not exist on the date hereof any condition or event which
constitutes a Default which has not been waived in writing as provided in Section
12.1(a) of the Note Purchase Agreement; nor will any such Default exist upon
Company’s receipt and application of the Borrowing requested hereby. |
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(f) |
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The Note Documents have not been modified, amended or supplemented by any
unwritten representations or promises, by any course of dealing, or by any other
means not provided for in Section 12.1 of the Note Purchase Agreement. The
Note Purchase Agreement and the other Note Documents are hereby ratified, approved,
and confirmed in all respects. |
[Note Purchase Agreement]
3. |
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The above certifications are effective as of the date of this request for Borrowing
and will continue to be effective as of the date of the Borrowing. If any of the
aforementioned certifications shall no longer be valid as of or prior to the date of the
Borrowing requested hereby, Company will immediately notify the Administrative Agent and will
repay the amount disbursed upon demand by the Administrative Agent if the Borrowing is made
prior to the receipt of such notice. |
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RIO VISTA XXXXX LLC
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By: |
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Name: |
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Title: |
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[Note Purchase Agreement]
Exhibit B — Page 2
EXHIBIT C
FORM OF PREPAYMENT NOTICE
[LETTERHEAD OF COMPANY]
[Administrative Agent]
[Address]
Re: Prepayment Notice
Ladies and Gentlemen:
We, Rio Vista Xxxxx LLC, an Oklahoma limited liability company (the “Company”), make
reference to the Note Purchase Agreement, as amended, modified or supplemented from time to time,
dated as of November 19, 2007 (the “Note Purchase Agreement”) (capitalized terms used but
not defined herein shall have the meanings ascribed to them in the Note Purchase Agreement), among
the Company, certain Holders identified therein, and the Administrative Agent.
The Company hereby provides notice to you in accordance with Section 2.9 to the Note Purchase Agreement that the Company shall
repay the principal amount of $ on [which date must be at least thirty business days after the date of this notice].
This prepayment notice is irrevocable.
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Very truly yours,
RIO VISTA XXXXX LLC
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By: |
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Name: |
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Title: |
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[Note Purchase Agreement]
EXHIBIT D
CERTIFICATE
ACCOMPANYING
FINANCIAL STATEMENTS
Reference is made to that certain Note Purchase Agreement dated as of November 19, 2007 (as
amended or supplemented, the “Agreement”), by and among Rio Vista Xxxxx LLC, an Oklahoma
limited liability company (“Company”), TCW Asset Management Company, as Administrative
Agent, and certain financial institutions (“Holders”), which Agreement is in full force and
effect on the date hereof. Terms which are defined in the Agreement are used herein with the
meanings given them in the Agreement.
This Certificate is furnished pursuant to Section 7.2(b) of the Agreement. Together
herewith Company is furnishing to Administrative Agent and each Holder Company’s * [audited/unaudited] financial statements (the “Financial
Statements”) as at (the “Reporting Date”). Company hereby represents, warrants, and acknowledges to Administrative
Agent and each Holder that:
(a) The officer of Company signing this instrument is the duly elected, qualified and acting of Company and as such is Company’s chief financial officer.
(b) The Financial Statements are accurate and complete and satisfy the requirements of the
Agreement.
(c) Attached hereto is a schedule of calculations showing Company’s compliance as of the
Reporting Date with the requirements of Section(s) *[8.11 and 8.12] of the Agreement *[and
Company’s non-compliance as of such date with the requirements of Section(s) of the Agreement].
(d) On the Reporting Date Company was, and on the date hereof Company is, in full compliance
with the disclosure requirements of Section 7.4 of the Agreement, and no Default otherwise existed
on the Reporting Date or otherwise exists on the date of this instrument * [except for Default(s) under Section(s) of the Agreement, which * [is/are] more
fully described on a schedule attached hereto].
(e) No Restricted Person has changed (i) its name, (ii) its chief executive office, (iii)
principal place of business, (iv) the type of entity it is, or (v) its state of incorporation or
organization without having given the Administrative Agent the notice required by Section 7.4 of
the Agreement.
(f) * [Unless otherwise disclosed on a schedule attached hereto,] all representations and
warranties made by any Person in any Note Document are true in all respects on and as of the
Reporting Date and the date hereof as if such representations and warranties had been made as of
such dates, except to the extent that such representation or warranty was made as of a specific
date or updated, modified or supplemented as of a subsequent date with the consent of Required
Holders and Administrative Agent.
[Note Purchase Agreement]
The officer of Company signing this instrument hereby certifies that he has reviewed the Note
Documents and the Financial Statements and has otherwise undertaken such inquiry as is in his
opinion necessary to enable him to express an informed opinion with respect to the above
representations, warranties and acknowledgments of Company and, to the best of his knowledge, such
representations, warranties, and acknowledgments are true, correct and complete.
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RIO VISTA XXXXX LLC
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By: |
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Name: |
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Title: |
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[Note Purchase Agreement]
Exhibit D — Page 2
EXHIBIT E
FORM OF OPINION
[Note Purchase Agreement]
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Xxxxxxx Xxxxxxx Xxxxx p.c.
ATTORNEYS AT LAW
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XXXXXXXX X. XXXXXX
(000) 000-0000 |
November 19, 2007
TCW Asset Management Company
860 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
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Re: |
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The Note Purchase Agreement dated as of November 14, 2007 by and among Rio
Vista Xxxxx LLC, an Oklahoma limited liability company (“Borrower”), TCW Asset
Management Company, a California corporation (“Administrative Agent”), and the holders
party thereto from time to time (“Holders”) |
We have acted as counsel to the Borrower, Rio Vista ECO LLC (“ECO”), an Oklahoma limited
liability company, Rio Vista GO LLC (“RVG”), an Oklahoma limited liability company), GO, LLC
(“GO”), an Oklahoma limited liability company, and MV Pipeline Company (“MV), an Oklahoma
corporation, in connection with the certain Note Purchase Agreement. Borrower, ECO, RVG, GO and MV
are sometimes herein referred to as the “Entities”.
This opinion is being furnished to you in connection with the Note Purchase Agreement. All
capitalized terms herein defined shall have the same meanings assigned to them in the Note
Purchase Agreement. In connection with the opinions set forth herein, we have examined originals,
or copies certified or otherwise identified to our satisfaction, of the following documents (the
“Loan Documents”).
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(A) |
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the Note Purchase Agreement; |
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(B) |
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the Assumption Agreement; |
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(C) |
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the Notes; |
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701 X. XXXXXX, SUITE 500 • P.O. BOX 15008
• AMXXXXXX, XXXXX 00000-0000
xxxxxxxx.xxxxxx@xxxxxxxxxx.xxx • PHONE (000) 000-0000 •
FAX (000) 000-0000 • xxxxxxxxxx.xxx
TCW Asset Management Company
November 19, 2007
Page 2 of 10
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(D) |
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the Guaranty by Restricted Persons (other than Company) in favor of
Administrative Agent; |
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(E) |
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the Amended and Restated Mortgage, Assignment, Security Agreement, Fixture
Filing and Financing Statement by Borrower in favor of Administrative Agent; |
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(F) |
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Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing
and Financing Statement by GO, LLC in favor of Administrative Agent; |
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(G) |
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Mortgage, Assignment of Leases and Rents, Security Agreement, Fixture Filing
and Financing Statement by MV Pipeline Company in favor of Administrative Agent; |
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(H) |
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Management Services Agreement; |
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(I) |
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Security Agreement by Restricted Persons in favor of Administrative
Agent; and |
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(J) |
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Financing Statements
as follows: |
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a. |
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UCC-1 Financing Statement naming Rio Vista ECO LLC as Debtor
and Administrative Agent as secured party covering all assets; |
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b. |
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UCC-1 Financing Statement naming Borrower as
Debtor and Administrative Agent as secured party covering all assets; |
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c. |
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UCC-1 Financing Statement naming GO, LLC as Debtor
and Administrative Agent as secured party covering all assets; |
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d. |
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UCC-1 Financing Statement naming MV Pipeline Company as
Debtor and Administrative Agent as secured party covering all assets; |
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e. |
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UCC-1 Financing Statement naming Rio Vista GO LLC as Debtor
and Administrative Agent as secured party covering all assets; |
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f. |
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UCC-1 Transmitting Utility Financing Statement naming GO, LLC
as Debtor and Administrative Agent as secured party; |
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g. |
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UCC-1 Transmitting Utility Financing Statement naming MV
Pipeline Company as Debtor and Administrative Agent as secured party. |
(E),
(F) and (G) are sometimes herein referred to as the “Mortgages.” (K)a., (K)b., (K)c.,
(K)d. and (K)e. are sometimes herein referred to as the “Financing Statements.” (K)f. and (K)g.
are sometimes herein referred to as the “Transmitting Utility Financing Statements.”
We are admitted to practice law in the State of Oklahoma. This opinion is limited to the
existing laws of the State of Oklahoma, and the federal law of the United States of America. We
express no opinion as to whether the laws of any particular jurisdiction apply, and express no
opinion to the extent that the laws of any jurisdiction other than those identified above are
applicable to the subject matter hereof. We disclaim any opinion as to any statute, rule,
regulation, ordinance, order or other promulgation of any regional or local governmental body. We
render no opinion as to the enforceability of any of the Agreements under any law other than the
above-mentioned laws of the State of Oklahoma.
TCW Asset Management Company
November 19, 2007
Page 3 of 10
As used in this opinion, the phrases “our actual knowledge,” “to the best of our knowledge,”
“to our knowledge,” “we are not aware,” “known to us” or words of similar import refer only to the
actual knowledge of the attorneys currently in this firm who have rendered legal services to the
Entities and mean that, although such attorneys have not been informed by Entities that the matters
stated are factually incorrect, we have made no independent investigation of such matters. No
inference as to our knowledge of any matters bearing on the accuracy of any such statement should
be drawn from the fact of our representation of the Entities for purposes of this transaction.
In rendering the opinions set forth herein, we have relied upon certificates or statements of
officers or managers of the Entities, certificates of public officials and such other documents,
records and information as we have deemed necessary or appropriate. We have assumed that all
signatures are genuine; that all documents submitted to us as originals are authentic; that all
documents submitted to us as copies conform to the originals; and that the facts stated in all
such documents are true and correct. In rendering this opinion, we have not made any independent
investigation as to accuracy or completeness of any facts or representations, warranties, data or
other information, whether written or oral, that may have been made by or on behalf of the
parties, except as specifically set forth herein.
Based upon the foregoing, and subject to the qualifications set forth herein, it is our
opinion that:
1. The Entities are organized as follows:
(a) Borrower is an Oklahoma limited liability company duly organized, validly existing
and in good standing under the laws of Oklahoma.
(b) ECO is an Oklahoma limited liability company duly organized, validly existing and
in good standing under the laws of Oklahoma.
(c) RVG is an Oklahoma limited liability company duly organized, validly existing and
in good standing under the laws of Oklahoma.
(d) GO is an Oklahoma limited liability company duly organized, validly existing and
in good standing under the laws of Oklahoma.
(e) MV is an Oklahoma corporation duly organized, validly existing and in good
standing under the laws of Oklahoma.
The Entities have the power to own their own assets, to conduct their own business as now
conducted and to enter into and carry out the provisions of the Loan Documents.
TCW Asset Management Company
November 19, 2007
Page 4 of 10
2. The forms of the Mortgages comply with the laws of the State of Oklahoma, including all
applicable recording, filing and registration laws and regulations, and are adequate and legally
sufficient for the purposes intended to be accomplished thereby.
3. The Loan Documents constitute legal, valid and binding obligations of the Entities who are
parties thereto enforceable against them in accordance with their terms except as limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application
relating to or affecting creditors’ rights generally and to general principles of equity.
4. The Security Agreement and the Real Estate Mortgages effective to create in favor of the
Administrative Agent, for the payment of the obligations described therein, valid Liens on each
Entity’s right, title and interest in and to the Collateral described therein.
5. The Transmitting Utility Financing Statements should be filed for record among the
financing statement records of the Secretary of State in the State of Oklahoma. The Financing
Statements should be filed for record among the financing statement records of the Oklahoma County
Clerk.
6. After the recordings and filings specified in paragraph 5 have occurred, the Liens, as to
personalty covered thereby, created by the Security Agreement and the Real Estate Mortgages will
be perfected.
7. After the recordings and filings specified in paragraph 5 have occurred, no instruments
need be recorded, registered or filed or re-recorded, re-registered or re-filed in any public
office in connection with the Financing Statements or the Transmitting Utility Financing
Statements in order to maintain the perfection and priority of the Liens created thereby after the
date of recordation, other than continuation statements as required by the Uniform Commercial Code
as in effect in Oklahoma.
8. No state or local recording tax, stamp tax or other similar fee, tax or governmental
charge (other than statutory filing and recording fees to be paid upon the filing of the Financing
Statements and the Transmitting Utility Financing Statements) is required to be paid in connection
with the filing and recording of the Financing Statements or the Transmitting Utility Financing
Statements.
9. Each of the Real Estate Mortgages constitutes a legal, valid and binding obligation of the
Entities enforceable against it in accordance with their terms except as limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general application relating to or
affecting creditors’ rights generally and to general principles of equity.
TCW Asset Management Company
November 19, 2007
Page 5 of 10
10. Each of the Real Estate Mortgages is effective to create in favor of the Administrative
Agent for the benefit of the Holders, for the payment of the obligations described therein, valid
mortgage liens on all of each Entity’s right, title and interest in and to the real property
described in the Real Estate Mortgages as being mortgaged thereby and all fixtures located on the
real property described in the Real Estate Mortgages.
11. Fully executed counterparts of the Real Estate Mortgages should be filed for record in the
tract index of each county in the State of Oklahoma where any portion of the real estate described
in the Real Estate Mortgages is located. Other than the foregoing, no authorization, consent,
approval, license or exemption of, or filing or registration with, any governmental authority of
the State of Oklahoma is necessary for either the due execution and delivery by the Entities of the
Real Estate Mortgages, to receive the benefit of the Oklahoma recording statutes or with respect to
the holding and enforcement by the Administrative Agent of the Real Estate Mortgages or the
obligations secured thereby.
12. The execution, delivery and performance by the Entities of their obligations under the
Loan Documents to which each is party, the consummation of the transactions contemplated
thereunder and the use of the proceeds of any loans (i) have been duly authorized by all necessary
action of the Entities, and (ii) to our knowledge, do not, and will not, contravene any provision
of (x) any existing law, rule or regulation (excluding usury laws), or (y) any judgment,
injunction, order, or decree known to us applicable to the Entities, or (z) any agreement or
instrument set forth on Schedule 12 attached hereto and to which the Entities are a party or to
which the Entities or any of their assets are subject or any provision of their organizational
documents, except for such agreements and instruments referenced in the Agreements.
13. To our knowledge, there are no actions, suits or proceedings or governmental
investigations pending or threatened against or affecting the Entities.
14. An Oklahoma state court of competent jurisdiction or a federal court sitting in the State
of Oklahoma of competent jurisdiction and applying conflicts of laws principles of the State of
Oklahoma presented with a choice of law issue, will honor the choice of New York law to govern the
Loan Documents; provided, however, that the Real Estate Mortgages state that such documents shall
be governed by the laws of the State of Oklahoma.
The foregoing opinions are expressly subject to the following limitations, qualifications and
assumptions:
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A. |
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In rendering the opinions set forth above, we have assumed the following: |
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a. |
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the compliance by the parties to the Loan Documents with
the precise terms thereof; |
TCW Asset Management Company
November 19, 2007
Page 6 of 10
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b. |
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the receipt by Borrower of the consideration provided for in
the Loan Documents; |
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c. |
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that the indebtedness secured by the Security Agreement and
Real Estate Mortgages exists; |
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d. |
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that the Administrative Agent will properly implement all
applicable constitutional, legislative, judicial and administrative
provisions, statutes, regulations, decisions, rulings and other laws and the
specific language of the Loan Documents that provide for the application of
payments and prepayments made by Borrower of all sums under the Loan Documents
and any loan commitments between the Administrative Agent and Borrower that
would (absent these laws, statutes and the savings and interest limitation and
spreading provisions of the Loan Documents) constitute charging of, payments
of, receipt of, or contracting for, compensation for the use, forbearance or
detention of money in excess of the maximum nonusurious amount permitted under
applicable constitutional, legislative, judicial and administrative
provisions, statutes, regulations, decisions, rulings and other laws; |
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e. |
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that the Loan Documents comprise the entire agreement of the
parties with respect to the Loan and that none of the parties upon whom we
have relied in preparation of this opinion has perpetrated a fraud upon us or
upon any other party in any way related to the Loan; |
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f. |
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that any individual executing a document or instrument on
behalf of a party other than the Entities possesses the legal contractual
capacity and authority to do so; |
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g. |
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that all signatures not witnessed by us are genuine, all
documents submitted to us, including documents with certificates issued by
any public authority are authentic and were duly and validly executed or
issued, and that copies of any documents or instruments furnished to us
conform to the originals thereof; and |
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h. |
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the due execution and delivery of the Loan Documents by all
parties thereto other than the Entities. |
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B. |
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Our opinions are subject to the effects of the application of the principles
of equity (regardless of whether enforcement is considered in proceedings at law or in
equity) in regard to covenants or provisions in agreements where (a) the breach of
such covenants or provisions imposes restrictions or burdens and it cannot be
demonstrated that the enforcement of such restrictions or burdens is reasonably
necessary for the Administrative Agent’s protection, or (b) the Administrative Agent’s
enforcement of such covenants or restrictions under
the circumstances or in the manner requested would violate the Administrative Agent’s
implied covenant of good faith and fair dealing under the Oklahoma Uniform Commercial
Code, or would be commercially unreasonable. |
TCW Asset Management Company
November 19, 2007
Page 7 of 10
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C. |
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We express no opinion as to whether a court would grant specific performance
or any other equitable remedy with respect to the enforcement of any of the Loan
Documents, or whether a court would grant a particular remedy provided therein or at
law or in equity. |
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D. |
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We express no opinion (a) as to the actual legal descriptions of the property
set forth in the Loan Documents or the exhibits or the actual legal descriptions
attached to the Loan Documents (in each case, except as to sufficiency as to form), or
(b) with respect to compliance with any environmental statutes, laws, rules or
regulations. |
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E. |
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The enforceability of any “dragnet,” “other indebtedness” or “security for
future advances” provisions contained in the Loan Documents is subject to the
assumption that any indebtedness to be secured by such provisions was within the
contemplation of Borrower and the Administrative Agent at the time the Loan Documents
were executed. |
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F. |
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All opinions contained herein which relate to the issue of usury are
expressly limited to an analysis of whether the Loan Documents as written, will be
subject to a defense, claim or setoff as a result of the Administrative Agent’s
contracting for a usurious rate of interest. Each and every opinion given herein is
expressly limited to issues relating to the contracting for, as opposed to the
charging or receiving of, usurious amounts of interest. |
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G. |
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The opinions expressed herein relate only to federal law and the laws of the
State of Oklahoma, and we express no opinion with regard to any matter that may be
governed or affected by the laws of any other state or jurisdiction, except where
otherwise specifically noted. |
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H. |
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The opinions expressed herein are limited to the matters stated herein and
no opinion may be implied or inferred beyond the matters expressly stated herein. |
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I. |
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We express no opinion with respect to: |
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a. |
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The past or present financial condition of the Borrower or
the financial ability of Borrower to meet its respective obligations under
the Loan Documents; |
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b. |
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Except as otherwise stated herein, the validity, binding
effect or enforceability of any documents or any other aspect of any
contractual obligations of the Entities applicable to it other than the Loan
Documents; or |
TCW Asset Management Company
November 19, 2007
Page 8 of 10
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c. |
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The truthfulness or accuracy of any applications, reports,
plans, documents, financial statements or other matters furnished to the
Administrative Agent by (or on behalf of) the Entities. |
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J. |
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No examination of an appraisal of any of the Collateral has been undertaken,
and no opinion is expressed with respect thereto or with respect to the value of the
Collateral. |
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K. |
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We render no opinion regarding nor otherwise assuming responsibility for the
accuracy of any representation or warranty by the Entities in or made pursuant to any
of the Loan Documents. |
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L. |
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We express no opinion as to the perfection or consequences of non-perfection
of any security interest created by the Loan Documents in any patents, trademarks,
copyrights or other property subject to a statute of the United States which provides
for national registration or filing of all security interests in such property must
be perfected in part by compliance with the requirements or procedures of the
relevant statute. Furthermore, we must limit our opinion as to the Financing
Statements and the Transmitting Utility Financing Statements to the fact that they
will lapse five years from the date of filing unless continuation statements are
properly filed. |
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M. |
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The foregoing opinions are subject to the qualification that certain
remedies, waivers and other provisions of the Loan Documents may not be enforceable,
but such unenforceability will not render the Loan Documents invalid as a whole, make
them legally inadequate for the practical realization of the benefits provided
thereby, or preclude (a) the judicial enforcement of the obligation of the Borrower
to repay the principal, together with interest as provided in the Loan Documents, (b)
the acceleration of the due date for the Borrower to pay such indebtedness, together
with interest due thereon in the event of default by the Borrower under the Loan
Documents, or (c) the foreclosure of any security agreement. |
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N. |
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In rendering the opinion expressed in Paragraphs 13 and 14 above, we have not
caused the search of any docket of any court, tribunal, agency or similar authority. |
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O. |
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In rendering the opinion expressed in Paragraph 1 regarding the good
standing of the Entities, we have relied solely on the certification of each Entity’s
good standing issued by the Secretary of State of Oklahoma, dated as follows: |
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a. |
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Borrower, dated November 8, 2007; |
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b. |
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ECO, dated November 9, 2007; |
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c. |
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RVG, dated November 8, 2007; |
TCW Asset Management Company
November 19, 2007
Page 9 of 10
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d. |
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GO, dated November 8, 2007; and |
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e. |
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MV, dated November 6, 2007. |
This opinion is solely for the benefit of the Administrative Agent (its successors or
assigns), its counsel, and subsequent holders of an interest in the Loan Documents and may not be
relied on by any other party without the express written consent of the undersigned law firm. This
opinion may not be quoted, circulated or published, in whole or in part, or furnished or relied
upon by any other party, without our prior written consent. The opinions herein are expressed as of
the date hereof only and not as of some future date. We undertake no responsibility to update this
letter for events occurring after the date hereof.
Very truly yours,
XXXXXXX XXXXXXX XXXXX P.C.
Xxxxxxxx X. Xxxxxx
TCW Asset Management Company
November 19, 2007
Page 10 of 10
Schedule 12
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• |
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Management Agreement by and between GO, Inc. and Clearwater Enterprises dated
August 1, 2006. |
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• |
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Service and Purchase Agreement by and between GO, Inc. and Brooken
Production LLC dated August 1, 2006. |
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• |
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Service and Purchase Agreement by and between GO, Inc. and Dyne
Exploration Company dated August 1, 2006. |
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• |
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Service and Purchase Agreement by and between GO, Inc. and Wildcard Oil and
Gas Company dated August 1, 2006. |
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• |
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Service and Purchase Agreement by and between GO, Inc. and XTO Energy Inc.
dated August 1, 2006. |
|
• |
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Service and Purchase Agreement by and between GO, Inc. and G.M. Oil
Properties, Inc. dated August 1, 2006. |
|
• |
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Service and Purchase Agreement by and between GO, Inc. and C dated
August 1, 2006. |
|
• |
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Schedule A to that certain Master Agreement between Hanover Compression
Limited Partnership and GO, Inc., dated September 18, 2006. |
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• |
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Management Services Agreement by and between GM Oil Properties, Inc. and MV
Pipeline Company dated January 1, 2004. |
November 19, 2007
TCW Asset Management Company
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: R. Xxxxx Xxxxxx
Dear Xx. Xxxxxx,
We have acted as counsel to Rio Vista GP LLC, a Delaware limited liability company (“RVGP”),
and Rio Vista Energy Partners L.P., a Delaware limited partnership (“RVEP”), in connection with
the attached Rio Vista Energy Partners L.P., Common Unit Purchase Warrant and the Management
Services Agreement, dated November 19, 2007 the (“Agreements”). RVGP and RVEP are sometimes herein
referred to as the “RV Entities.” This opinion is furnished to you pursuant to the Agreements.
Unless otherwise indicated in this letter, all capitalized terms used herein have the meanings
given to those terms in the Agreements.
We are admitted to practice law only in the State of California. This opinion is limited to
the existing laws of the State of California, and the federal law of the United States of America.
We express no opinion as to whether the laws of any particular jurisdiction apply, and express no
opinion to the extent that the laws of any jurisdiction other than those identified above are
applicable to the subject matter hereof. We disclaim any opinion as to any statute, rule,
regulation, ordinance, order or other promulgation of any regional or local governmental body. We
render no opinion as to the enforceability of any of the Agreements under any law other than the
above-mentioned laws of the State of California and the federal law of the United States of
America.
We express no opinion as to title to, or any other interest of RVGP or RVEP, in any
collateral. We express no opinion as to the attachment, creation, validity or perfection of any
security interest under any state law or federal law.
We assume that neither RVGP nor RVEP is insolvent and by executing and delivering the
Agreements will not become insolvent.
In our examination of the Agreements for purposes of this opinion, we have assumed, and
express no opinion as to, (a) the genuineness of all signatures on original documents other than
RV Entities, (b) the authenticity and completeness of all documents submitted to us as originals,
(c) the conformity to originals and completeness of all documents submitted to us as copies, and
(d) the lack of any undisclosed termination, modification, waiver or amendment to any document
reviewed by us.
As used in this opinion, the phrases “our actual knowledge,” “to the best of our knowledge,”
“to our knowledge,” “we are not aware,” “known to us” or words of similar import refer only to the
actual knowledge of the attorneys currently in this firm who have rendered legal services to RVGP
and RVEP and mean that, although such attorneys have not been informed by RVGP and RVEP that the
matters stated are factually incorrect, we have made no independent investigation of such matters
and have relied solely on the Management Certificate issued by each of RVGP and RVEP. No inference
as to our knowledge of any matters bearing on the accuracy of any such statement should be drawn
from the fact of our representation of RVGP and RVEP for purposes of this transaction.
As to the enforceability of the Agreements, this opinion is qualified by, and is subject to,
and we render no opinion with respect to:
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the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent conveyance and other similar laws relating to or affecting the rights of
creditors generally; |
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the effect of general principles of equity and similar principles, including,
without limitation, concepts of materiality, reasonableness, public policy and
unconscionability and the possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether considered in a proceeding
in equity or at law; |
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the effect of California, federal or other laws relating to usury or
permissible rates of interest for loans, forbearances or the use of money; |
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the effect of any California or federal law or court decisions that requires a
lender to enforce its remedies in a commercially reasonable manner; and |
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the enforceability of any consent to service, jurisdiction or forum for any
claim, suit, demand, action or cause of action arising under or related to the
Agreements, or the transactions contemplated therein, or any provision providing for
the exclusive jurisdiction of a particular court or purporting to waive rights to
trial by jury, service of process or objections to the laying of venue or to forum on
the basis of forum non conveniens in connection with any litigation arising
out of or pertaining to the Loan Documents. |
In rendering the opinion expressed in paragraphs 1 and 2 below regarding the good standing of
RVGP’s and RVEP’s qualification to do business, we have relied solely on the certification of
RVGP’s and RVEP’s existence and good standing issued by the Secretary of State of the State of
Delaware, dated as of November 6, 2007.
In rendering the opinion expressed in paragraphs 2 and 5 below, we have not caused the search
of any docket of any court, tribunal, agency or similar authority.
We also call your attention to the fact that under various reports published by committees of
the State Bar of California, certain assumptions, qualifications and exceptions are implicit in
opinions of lawyers. Although we have expressly set forth some assumptions, qualifications and
exceptions herein, we are not limiting or omitting any others set forth in the various reports or
otherwise deemed standard practice for lawyers in California.
Based upon the foregoing, subject to the assumptions, exceptions, and qualifications referred
to herein, the following are our opinions as of the date of this letter.
1. RVGP is a Delaware limited liability company duly organized, validly existing and in good
standing under the laws of Delaware. RVEP is a Delaware limited partnership duly organized,
validly existing and in good standing under the laws of Delaware. The RV Entities have the power
to own their own assets, to conduct their own business as now conducted and to enter into and
carry out the provisions of the Agreements.
2. The execution, delivery and performance by the RV Entities of the Agreements to which each
is party, the consummation of the transactions contemplated thereunder and the use of the proceeds
of any loans (i) have been duly authorized by all necessary corporate and limited partnership
actions, as the case maybe, of the RV Entities, (ii) do not constitute a material breach by the RV
Entities under the RZB Loan Agreements, as such term is defined under
Schedule A (attached
hereto and incorporated by reference (copies of such contracts have been furnished to you)); and
(iii) to our knowledge, do not, and will not, contravene any provision of (x) any existing law,
rule or regulation (excluding usury laws), or (y) any judgment, injunction, order, or decree known
to us applicable to the RV Entities, or (z) any agreement or instrument known to us to which the
RV Entities are a party or to which the RV Entities or any of their assets are subject or any
provision of their organizational documents, except for such agreements and instruments referenced
in the Agreements.
3. The Agreements have been duly executed and delivered by the RV Entities, and are the legal,
valid and binding obligations of the RV Entities, enforceable in accordance with their respective
terms subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization and
similar laws affecting the enforcement of creditors’ rights generally and to general principles of
equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
4. To our actual knowledge, no order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any court,
administrative agency or commission or other governmental or public body or authority, or any
subdivision thereof, domestic or foreign, or any other person or entity, is required to authorize,
or is required in connection with the execution, delivery, performance and enforcement of the
Agreements or any of the documents, agreements or instruments referred to therein by or against
the RV Entities except such as have been obtained and furnished to the RV Entities.
5. To our knowledge, there are no actions, suits or proceedings or governmental
investigations pending or threatened against or affecting the RV Entities other than as listed on
Schedule B to this opinion or as disclosed in RVEP’s filings with the Securities Exchange
Commission.
6. To our knowledge, the RV Entities are not engaged, principally, or as one of their
important activities, in the business of extending credit for the purpose of purchasing or
carrying any
margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve
System).
7. None of the RV Entities is an “Investment Company” or an “Affiliated Person” of, or a
“Promotor” or “Principal Underwriter” for, an “Investment Company,” as such terms are defined in
the Investment Company Act of 1940, as amended.
In rendering the opinions above, we are opining only as to the specific legal issues expressly
set forth herein, and no opinion shall be inferred as to other matters. This opinion is intended
solely for Trust Company of the West and the Holders under the Notes Purchase Agreement described
in the Agreement, together with their respective successors and assigns, use for the purpose of the
Agreements, and is not to be made available to or relied upon for any other purpose or by any other
person or entity, without our prior written consent. We assume no obligation to advise you of any
fact, circumstance, event or change in the law or the facts that may hereafter be brought to our
attention whether or not they would affect or modify the opinions expressed herein.
Very truly yours,
Law Offices of Xxxxx X. Xxxxx
SCHEDULE A
In connection with our opinion under Paragraph 2 above, we have solely reviewed the following
agreements (“RZB Loan Agreements”), and we have not examined any other documents (including those
documents referenced in the following agreements) or made any independent factual investigation:
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1. |
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Amended & Restated Line Letter of September 15, 2004, entered into by Penn Octane
Corporation and RZB Finance LLC, as amended by the Second Amendment to Line Letter of even
date herewith. |
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2. |
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Loan Agreement of July 26, 2007, entered into by RVEP and RZB Finance LLC, as amended
by the First Amendment to Loan Agreement of even date herewith. |
SCHEDULE B
Pending or Threatened Actions and Proceedings
None.
EXHIBIT F
FORM OF APPROVAL LETTER
Reference
is made to the Note Purchase Agreement, dated as of November 19, 2007 (as it may be
amended, supplemented or otherwise modified, the “Note Purchase Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein defined), by and
among Rio Vista Xxxxx LLC, an Oklahoma limited liability company (“Company”), the Holders
party thereto from time to time, and TCW Asset Management Company, as Administrative Agent.
Reference is hereby made to the Note Purchase Agreement for all purposes, and terms defined therein
shall have the same meanings when used herein.
The Agreement contemplates that certain Approval Letters may be given from time to time in
connection therewith in order to specify certain ANCF Capital Expenditures, ANCF XXX, ANCF Overhead
Costs or ANCF Transportation Costs. This letter is such an Approval
Letter and is given by the undersigned in order so to approve the ANCF which
are specified in the schedule attached hereto. This letter [is in addition to/supersedes] all
previous Approval Letters dealing with ANCF .
This letter is a Note Document, and all provisions of the Note Purchase Agreement which apply
to Note Documents shall apply hereto.
This letter may be separately executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall be deemed to
constitute one and the same Approval Letter.
Please execute a counterpart of this letter in the place provided below to evidence your
agreement to the foregoing and your continuing ratification of the Note Purchase Agreement and the
other Note Documents in consideration of the approval herein contained.
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Yours truly,
TCW ASSET MANAGEMENT COMPANY, as Administrative
Agent
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By: |
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Name: |
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Title: |
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* [OTHER HOLDERS CONSTITUTING
REQUISITE HOLDERS]
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Accepted and agreed to as of the date first written above
RIO VISTA XXXXX LLC
[Note Purchase Agreement]