EXHIBIT 2.2
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ACQUISITION AND CONSOLIDATION AGREEMENT
by and among
BELLWETHER EXPLORATION COMPANY
(a Delaware corporation)
PROGRAM ACQUISITION COMPANY
(a Delaware corporation)
AND
THOSE OTHER ENTITIES LISTED ON THE SIGNATURE PAGES HERETO
March 31, 1997
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TABLE OF CONTENTS
ARTICLE I. CERTAIN TERMS DEFINED..............................................1
Section 1.1 Defined Terms..........................................1
Section 1.2 Construction...........................................9
Section 1.3 References.............................................9
ARTICLE II. THE MERGER AND PARTNERSHIP INTEREST TRANSFER......................9
Section 2.1 The Merger.............................................9
Section 2.2 The Certificate of Incorporation.......................9
Section 2.3 The Bylaws.............................................9
Section 2.4 Conversion of Interests................................9
Section 2.5 Effective Time.........................................9
Section 2.6 Subsequent Actions....................................10
Section 2.7 Transfer of Limited Partner
Interests in 1988-II Limited
Partnership, 1989-I Limited
Partnership, TEAI VIII-A and
TEAI VIII-B...........................................10
Section 2.8 Transfer of General Partner
Interests in 1988-II Limited
Partnership, 1989-I Limited
Partnership, TEAI VIII-A and TEAI VIII-B..............10
ARTICLE III. THE TRANSFERS AND CONVEYANCES...................................11
Section 3.1 Note Transfers.........................................11
Section 3.2 Conveyance of Type 5 Assets............................11
Section 3.3 Conveyance of Black Hawk Stock........................11
Section 3.4 Conveyance of TOGCO Stock.............................12
Section 3.5 Conveyance of TEA Properties..........................12
Section 3.6 Conveyance of TOC Properties..........................12
Section 3.7 Extinguishment of Certain Notes.......................12
Section 3.8 Further Assurances....................................12
ARTICLE IV. PAYMENT OF EXCHANGE VALUE; CONTINGENT PAYMENT.....................13
Section 4.1 Payment of Exchange Value.............................13
Section 4.2 Contingent Payment....................................13
Section 4.3 Escrow Deposits.......................................13
ARTICLE V. REPRESENTATIONS AND WARRANTIES....................................15
Section 5.1 Representations and Warranties
of Bellwether and Buyer...............................15
Section 5.2 Representations and Warranties
of each Partnership...................................16
Section 5.3 Representations and Warranties
of Each Partner.......................................19
Section 5.4 Representations and Warranties of the Type
3 Noteholder and Type 4 Noteholder....................21
Section 5.5 Representations and Warranties of
Type 5 Investors......................................23
Section 5.6 Representations and Warranties of Black Hawk,
TEA, TOC and TOGCO....................................25
Section 5.7 Representations and Warranties of Torch...............27
ARTICLE VI. COVENANTS AND AGREEMENTS.........................................30
Section 6.1 Consent...............................................30
Section 6.2 Conduct of Business...................................30
Section 6.3 Preferential Rights...................................30
Section 6.4 Filings; Consents.....................................31
Section 6.5 No Other Agreements...................................31
Section 6.6 Reasonable Efforts....................................31
Section 6.7 SEC Matters...........................................32
Section 6.8 AFE's.................................................32
Section 6.9 Torchmark Payments....................................32
Section 6.10 Right of Inspection...................................32
ARTICLE VII. CONDITIONS TO CLOSING; TERMINATION..............................32
Section 7.1 Closing...............................................32
Section 7.2 Actions and Deliveries at Closing.....................32
Section 7.3 Closing Conditions to all Transactions................34
Section 7.4 Conditions to Merger..................................35
Section 7.5 Conditions to the Note Transfers......................36
Section 7.6 Conditions to the Type 5 Transfers....................37
Section 7.7 Conditions to Black Hawk Transfer,
TEA Transfer, TOC Transfer and
TOGCO Transfer........................................38
Section 7.8 Termination...........................................39
Section 7.9 Waivers of Conditions.................................40
ARTICLE VIII. ASSUMPTION AND INDEMNIFICATION.................................40
Section 8.1 Indemnity by Bellwether and Buyer.....................40
Section 8.2 Indemnification by Torch..............................41
Section 8.3 Waivers...............................................42
ARTICLE IX. STEERING COMMITTEE AGREEMENT.....................................42
Section 9.1 Continuation of Agreements............................42
Section 9.2 Amendment of Agreements...............................42
Section 9.3 No Liability of Bellwether............................44
ARTICLE X. MISCELLANEOUS AND GENERAL.........................................44
Section 10.1 Survival.............................................44
Section 10.2 Modification or Amendment............................44
Section 10.3 Waiver of Conditions.................................44
Section 10.4 Counterparts.........................................45
Section 10.5 GOVERNING LAW........................................45
Section 10.6 Entire Agreement, etc................................45
Section 10.7 Captions.............................................45
Section 10.8 Guaranty.............................................45
Section 10.9 Limited Partner Execution............................46
Section 10.10 Allocation of purchase price........................46
Section 10.11 No Partnership or Third Party Beneficiary...........46
Section 10.12 Effectiveness of this Agreement.....................46
Section 10.13 Notices.............................................47
Section 10.14 Settlement Agreement................................47
Section 10.15 Investment Advisor..................................47
(ii)
Exhibit A...........................................Programs and Exchange Values
Exhibit B.................................................Certificates of Merger
Exhibit C...........................................Allocation of Exchange Value
Exhibit D...................................Excerpts from Registration Statement
Exhibit E.......................................................Escrow Agreement
Exhibit F...................................................Settlement Agreement
Schedule A................................................Schedule of Properties
Schedule B...................................Schedule of Net Profits Conveyances
(iii)
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ACQUISITION AND CONSOLIDATION AGREEMENT
THIS ACQUISITION AND CONSOLIDATION AGREEMENT (this "Agreement"), is made
and entered into as of this 31st day of March, 1997, by and among Program
Acquisition Company, a Delaware corporation ("Buyer"), Bellwether Exploration
Company, a Delaware corporation ("Bellwether"), and those other entities that
are parties hereto and are listed on the signature pages hereof.
RECITALS
WHEREAS, Torch (as defined) has formed partnerships and other entities, or
has entered into acquisition agreements, through which the Institutional Sellers
(as defined) make investments in oil and gas properties and related assets;
WHEREAS, Buyer and Bellwether wish to acquire and consolidate the business
and properties of such partnerships, and certain properties of certain other
entities, into the Buyer pursuant to and as described in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements, and conditions herein
contained, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I. CERTAIN TERMS DEFINED
SECTION 1.1 DEFINED TERMS. The following are definitions of certain terms
capitalized and used throughout this Agreement:
"1988-II LIMITED PARTNERSHIP" means 1988-II TEAI Limited
Partnership, a Texas limited partnership.
"1989-I LIMITED PARTNERSHIP" means 1989-I TEAI Limited Partnership,
a Texas limited partnership.
"AVERAGE NYMEX PRICE" is defined in Section 4.2 of this Agreement.
"BELLWETHER" is defined in the Preamble of this Agreement.
"BLACK HAWK" means Black Hawk Oil Company, a Delaware corporation.
"BLACK HAWK STOCK" is defined in Section 5.7(g) of this Agreement.
"BLACK HAWK TRANSFER" means the sale, transfer and conveyance of the
Black Hawk Stock to Buyer.
"BLACK HAWK PROPERTIES" means those Properties described on Schedule
A as owned by Black Hawk and subject to the net profits interests of the
Type 5 Properties, the Properties of the Type 4 Partnerships or the
Properties of certain of the Type 2 Partnerships.
"BUYER" is defined in the Preamble of this Agreement.
"CALCULATION DATE" is defined in Section 4.2 of this Agreement.
"CLAIMS" means all security interests, liens, pledges, claims,
charges, escrows, encumbrances, options, rights of first refusal,
mortgages, indentures, security agreements or other agreements,
arrangements, contracts, commitments, understandings, obligations, whether
written or oral and whether or not relating in any way to credit or the
borrowing of money, voting agreements or proxies, but not including those
created pursuant to the applicable agreements and other instruments
creating the Institutional Programs.
"CLOSING" is defined in Section 7.1 of this Agreement.
"CLOSING ESCROW DEPOSIT" is defined in Section 4.3(b) of this
Agreement.
"CLOSING DATE" is defined in Section 7.1 of this Agreement.
"CONTINGENT PAYMENT" is defined in Section 4.1 of this Agreement.
"CONTRACT" is defined in Section 4.2 of this Agreement.
"DGCL" means the Delaware General Corporation Law, as amended.
"EFFECTIVE DATE" means July 1, 1996.
"EFFECTIVE TIME" is defined in Section 2.5 of this Agreement.
"ESCROW AGENT" is defined in Section 4.3(a) of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE VALUE" means each Seller's share, as determined by Torch
and such Seller, of the $188,347,731 purchase price less Interim
Distributions paid to such Seller and shall equal the following,
(a) with respect to the interest of each General Partner and
each Limited Partner in each Type 1 Partnership, each Type 2
Partnership, the Type 3 Partnership and the Type 4 Partnerships, the
amount of cash set forth next to each such Partner's name under the
column "Exchange Value as of July 1, 1996" on Exhibit A hereto, less
Interim Distributions made to such partner with respect to such
Partnership;
(b) with respect to the Type 3 Note owned by the Type 3
Noteholder and the Type 4 Notes owned by the Type 4 Noteholder, the
amount of cash set forth next to such entity's name under the column
"Exchange Value as of July 1, 1996" on Exhibit A hereto, less
Interim Distributions to such entity;
(c) with respect to each portion of the Type 5 Assets owned by
a Type 5 Investor, the amount of cash set forth next to such Type 5
Investor's name under the column "Exchange Value as of July 1, 1996"
on Exhibit A hereto, less Interim Distributions made to such
Investor with respect to such portion of such assets;
(d) with respect to the Black Hawk Stock, the amount of cash
set forth next to Black Hawk's name under the column "Exchange Value
as of
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July 1, 1996" on Exhibit A hereto, less Interim Distributions made
by Black Hawk;
(e) with respect to the TOGCO Stock, the amount of cash set
forth next to TOGCO's name under the column "Exchange Value as of
July 1, 1996" on Exhibit A hereto, less Interim Distributions made
by TOGCO;
(f) with respect to each portion of the TEA Assets, the amount
of cash set forth next to TEA's name under the column "Exchange
Value as of July 1, 1996" on Exhibit A hereto, less Interim
Distributions made to TEA with respect to such portion of such
assets; and
(g) with respect to each portion of the TOC Assets, the amount
of cash set forth next to TOC's name under the column "Exchange
Value as of July 1, 1996" on Exhibit A hereto, less Interim
Distributions made to TOC with respect to such portion of such
assets.
"EXCLUDED BLACK HAWK ASSETS" means all properties and other assets
of any kind or nature currently or previously owned by Black Hawk or in
which Black Hawk had or has an interest, other than the Black Hawk
Properties.
"EXCLUDED TOGCO ASSETS" means all properties and other assets of any
kind or nature currently or previously owned by TOGCO or in which TOGCO
had an interest, other than the TOGCO Properties.
"GENERAL PARTNERS" means Torch and TEA in their respective
capacities as the general partners of those Partnerships set forth on
Exhibit A hereto.
"INSTITUTIONAL PROGRAMS" means the Partnerships and the agreements
among the Type 5 Investors and Torch, TOGCO and/or Black Hawk relating to
the purchase of the Type 5 Properties, collectively.
"INSTITUTIONAL SELLERS" means all Sellers except the General
Partners, TEA, TOC, Torchmark and any subsidiary of Torchmark,
collectively.
"INTERIM DISTRIBUTIONS" means,
(a) with respect to the interest of each of the General
Partners and Limited Partners of each Type 1 Partnership, 1988-II
Limited Partnership, 1989-I Limited Partnership, TEAI VIII-A, TEAI
VIII-B, each Type 2 Partnership, the Type 3 Partnership and the Type
4 Partnerships, the aggregate amount of cash distributions paid to
such partner by such Partnership from the net cash flow received by
each such Partnership during the Interim Period, other than any
distributions received by such partner under or pursuant to the
Settlement Agreement;
(b) with respect to the Type 3 Note and the Type 4 Notes, the
aggregate amount of principal and interest payments made on the Type
3 Note and Type 4 Notes, respectively, during the Interim Period,
other than any cash distributions received by the Type 3 Noteholder
or Type 4 Noteholder, respectively, under or pursuant to the
Settlement Agreement;
(c) with respect to a Type 5 Investor's Type 5 Assets, the
aggregate amount paid to such Type 5 Investor by reason of the Type
5 Property owned by it during the Interim Period, other than any
amounts paid to or received by such Type 5
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Investor under or pursuant to the Settlement Agreement;
(d) with respect to the Black Hawk Stock, the dividends or
other amounts paid to Torch or its affiliates during the Interim
Period other than dividends of the Excluded Black Hawk Assets;
(e) with respect to the TOGCO Stock, the dividends or other
amounts paid to Torch or its affiliates) during the Interim Period
other than dividends of the Excluded TOGCO Assets;
(f) with respect to the TEA Assets, the excess, if any, of the
aggregate revenues received by TEA over the aggregate costs and
other amounts paid by TEA with respect to the TEA Properties
(including payments made with respect to the Properties of the Type
2 Partnerships) during the Interim Period; and
(g) with respect to the TOC Assets, the excess, if any, of the
aggregate revenues received by TOC over the aggregate costs and
other amounts paid by TOC with respect to the TOC Properties during
the Interim Period.
"INTERIM PERIOD" means the period commencing on July 1, 1996, and
ending on the close of business on the day prior to the Closing Date.
"INVESTORS" is defined in Section 9.2.
"LIMITED PARTNERS" means those entities identified as the limited
partners of the Partnerships on Exhibit A hereto, collectively.
"MATERIAL ADVERSE CHANGE" means an adverse change in the reserves,
condition or liabilities of the Transaction Assets which is material to
all of the Transaction Assets, taken as a whole, other than as a result of
conditions affecting the oil and gas industry in general (without
limitation, a reduction in prevailing prices for oil and gas is not a
Material Adverse Change).
"MATERIAL OIL AND GAS PROPERTIES" means those Properties,
individually or in the aggregate, which if not acquired by Buyer, directly
or indirectly, would be material to all of the Properties to be
transferred to Buyer hereunder, taken as a whole.
"MERGER" is defined in Section 2.1 of this Agreement.
"NOTE TRANSFERS" is defined in Section 3.1 of this Agreement.
"NOTEHOLDERS" means the Type 3 Noteholder and the Type 4 Noteholder,
collectively.
"NYMEX" is defined in Section 4.2 of this Agreement.
"OIL AND GAS PROPERTIES" means the Properties described in paragraph
(a) and (b) of the definition of Properties.
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"PARTNERS" means the General Partners and the Limited Partners,
collectively.
"PARTNERSHIP ASSETS" means the assets of the Partnerships, including
the Partnership Properties.
"PARTNERSHIP PROPERTIES" means the Properties owned by the
Partnerships as set forth on Schedule A.
"PARTNERSHIPS" means the Type 1 Partnerships, 1988-II Limited
Partnership, 1989-I Limited Partnership, TEAI VIII-A, TEAI VIII-B, the
Type 2 Partnerships, the Type 3 Partnership and the Type 4 Partnerships,
collectively.
"PROPERTIES" means the following described properties, rights and
interests:
(a) All right, title and interest of a Partnership, Black Hawk, TEA,
TOC or TOGCO in and to the oil and gas xxxxx, the oil and gas units and
the other oil, gas and mineral interests (and in all associated oil, gas
and/or mineral leases and/or fee mineral interests) described on Schedule
A hereto (and any ratifications and/or amendments to such leases, whether
or not such ratifications or amendments are described on Exhibit A),
together with all right, title and interest of a Type 5 Investor to a Type
5 Property; and
(b) All rights, titles and interests of a Partnership, a Type 5
Investor, Black Hawk, TEA, TOC or TOGCO in and to, or otherwise derived
from, all presently existing and valid oil, gas and/or mineral
unitization, pooling, and/or communitization agreements, declarations
and/or orders (including, without limitation, all units formed under
orders, rules, regulations, or other official acts of any federal, state,
or other authority having jurisdiction, and voluntary unitization
agreements, designations and/or declarations) relating to the properties
described in subsection (a) above, to the extent and only to the extent
such rights, titles and interests are attributable to the properties
described in subsection (a) above; and
(c) All rights, titles and interests of a Partnership, a Type 5
Investor, Black Hawk, TEA, TOC or TOGCO in and to all presently existing
and valid production sales contracts, operating agreements, and other
agreements and contracts which relate to any of the properties described
in subsections (a) and (b) above, to the extent and only to the extent
such rights, titles and interests are attributable to the properties
described in subsections (a) and (b) above; and
(d) All rights, titles and interests of a Partnership, a Type 5
Investor, Black Hawk, TEA, TOC or TOGCO in and to all materials, supplies,
machinery, equipment, improvements and other personal property and
fixtures (including, but not by way of limitation, all xxxxx, wellhead
equipment, pumping units, flowlines, tanks, buildings, injection
facilities, saltwater disposal facilities, compression facilities,
gathering systems, processing or other plants and other equipment) located
on the properties described in subsections (a) and (b) above and used in
connection with the exploration, development, operation or maintenance
thereof, to the extent and only to the extent such rights, titles and
interests are attributable to the properties described in subsections (a)
and (b) above.
"REGISTRATION STATEMENT" means the Form S-1 Registration Statement,
as amended from time to time, filed by Bellwether on February 14, 1997,
with the Securities and Exchange Commission under the Securities Act with
respect to
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Bellwether's proposed sale of the Common Stock and Subordinated Notes
described therein.
"RESERVE REPORTS" means (i) that certain reserve report dated as of
June 30, 1996 prepared by Torch and audited by Xxxxx Xxxxx Company
Petroleum Engineers (the "June 30 Report") and (ii) those reserve reports
prepared by Netherland, Xxxxxx & Associates, Inc., Xxxxx Xxxxx Company
Petroleum Engineers, Gruy Engineering Company and X.X. Xxxx & Associates,
Inc. (collectively, the "Reserve Engineers") dated as of January 1, 1997
(the "January 1 Reports"), all as furnished by Torch to the Institutional
Sellers or their representatives.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLERS" means, collectively, the General Partners, Limited
Partners, the Type 3 Noteholder, the Type 4 Noteholder, the Type 5
Investors, Torch, TEA and TOC.
"SELLERS' FINANCIAL ADVISOR" means Xxxxxx Xxxxxxx & Co., Inc. and
any successor or additional investment advisor for the Institutional
Sellers as shall be appointed pursuant to the SCA (as defined in Section
9.1).
"SETTLEMENT AGREEMENT" means (i) that certain Release and
Confidentiality Agreement to be dated as of the Closing Date, in
substantially the form of Exhibit F hereto, (ii) the substantially similar
agreement to be entered into among Torch, Torchmark and Price Waterhouse
LLP and (iii) the substantially similar agreement to be entered into
between Torch, Torchmark and Xxxxxxx Xxxxxxxx.
"SIGNING ESCROW ACCOUNT" is defined in Section 4.3(a) of this
Agreement.
"TEA" means Torch Energy Associates Ltd., a Texas limited
partnership.
"TEA ASSETS" is defined in Section 3.5 of this Agreement.
"TEA TRANSFER" means the sale, transfer and conveyance of the TEA
Assets to Buyer.
"TEA PROPERTIES" means those Properties described on Schedule A as
owned by TEA and burdened by the Properties of certain of the Type 2
Partnerships.
"TEAI VIII-A" means TEAI VIII-A Limited Partnership, a Texas limited
partnership.
"TEAI VIII-B" means TEAI VIII-B Limited Partnership, a Texas limited
partnership.
"TORCH" means Torch Energy Advisors Incorporated, a Delaware
corporation.
"TORCHMARK" means Torchmark Corporation, a Delaware corporation.
"TOC" means Torch Operating Company, a Texas corporation.
"TOC ASSETS" is defined in Section 3.6 of this Agreement.
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"TOC TRANSFER" means the sale, transfers and conveyance of the TOC
Assets to Buyer.
"TOC PROPERTIES" means those assets owned by TOC which are described
in the definition of Properties that relate to any of the other Properties
being purchased by Buyer hereunder.
"TOGCO" means TEAI Oil & Gas Company, a Delaware corporation.
"TOGCO STOCK" is defined in Section 5.7(g) of this Agreement.
"TOGCO TRANSFER" means the sale, transfers and conveyance of the
TOGCO Stock to Buyer.
"TOGCO PROPERTIES" means those Properties owned by TOGCO (as
burdened by the Type 5 Properties and/or the Properties of certain of the
Type 2 Partnerships) and described on Schedule A.
"TRLPA" means the Texas Revised Limited Partnership Act, as amended.
"TRANSACTION" means the specific Merger, purchase and sale of a
General Partner or Limited Partner interest in 1988-II Limited
Partnership, 1989-I Limited Partnership, TEAI VIII-A or TEAI VIII-B and
each Transfer and each other transaction contemplated by this Agreement,
individually, with respect to a particular party, and Transactions means
all of such transactions, collectively.
"TRANSACTION ASSETS" means the Type 3 Note, the Type 4 Notes, the
Type 5 Assets, the Black Hawk Stock, the TEA Assets, the TOC Assets, the
TOGCO Stock and the Partnership Assets, collectively.
"TRANSFERS" means the Note Transfers, Type 5 Transfers, the Black
Hawk Transfer, the TEA Transfer, the TOC Transfer and the TOGCO Transfer,
collectively.
"TYPE 1 PARTNERSHIPS" means the limited partnerships identified as
Type 1 Partnerships on Exhibit A hereto other than 1988-II Limited
Partnership, 1989-I Limited Partnership and TEAI VIII-A.
"TYPE 2 PARTNERSHIPS" means the limited partnerships identified as
Type 2 Partnerships on Exhibit A hereto other than TEAI VIII-B.
"TYPE 3 CREDIT AGREEMENT" means the Credit Agreement dated October
25, 1991, between the Type 3 Noteholder and the Type 3 Partnership.
"TYPE 3 LIMITED PARTNER" means N.E. Financial, Inc., a Delaware
corporation and wholly owned subsidiary of Torch and the sole limited
partner of the Type 3 Partnership, and any successor or assign thereof.
"TYPE 3 NOTE" means the promissory note issued by the Type 3
Partnership and payable to the order of the Type 3 Noteholder pursuant to
the Type 3 Credit Agreement.
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"TYPE 3 NOTEHOLDER" means Metropolitan Life Insurance Company, as
successor to New England Mutual Life Insurance Company, and any successor
or assign thereof.
"TYPE 3 PARTNERSHIP" means the limited partnership identified as the
Type 3 Partnership on Exhibit A hereto.
"TYPE 4 CREDIT AGREEMENTS" means the Credit Agreements dated October
30, 1991, and March 8, 1993, between the Type 4 Noteholder and the Type 4
Partnerships.
"TYPE 4 LIMITED PARTNER" means T.I. Financial, Inc., a Delaware
corporation and wholly owned subsidiary of Torch and the sole limited
partner of each of the Type 4 Partnerships, and any successor or assign
thereof.
"TYPE 4 NOTES" means the promissory notes issued by the Type 4
Partnerships and payable to the order of the Type 4 Noteholder pursuant to
the Type 4 Credit Agreements.
"TYPE 4 NOTEHOLDER" means Teachers Insurance and Annuity Association
of America and any successor or assign thereof.
"TYPE 4 PARTNERSHIPS" means the limited partnerships identified as
the Type 4 Partnerships on Exhibit A hereto.
"TYPE 5 AGREEMENTS" means the Acquisition Agreements and related
agreements between the Type 5 Investors and Torch or an affiliate of Torch
relating to the acquisition of the Type 5 Properties.
"TYPE 5 ASSETS" is defined in Section 3.2 of this Agreement.
"TYPE 5 INVESTORS" means the parties to Type 5 Agreements as set
forth on Exhibit A to this Agreement as Type 5 Investors, including Torch,
but excluding Black Hawk and TOGCO.
"TYPE 5 PROPERTIES" means all right, title and interest of the Type
5 Investors in and to the net profits interests conveyed by the
conveyances listed on Schedule B hereto.
"TYPE 5 TRANSFERS" is defined in Section 3.2.
SECTION 1.2 CONSTRUCTION. Whenever the context requires, the gender of all
words used herein shall include the masculine, feminine and neuter, and the
number of all words shall include the singular and plural.
SECTION 1.3 REFERENCES. Unless otherwise specified, references in this
Agreement to "Sections", "Subsections" or "Articles" refer to the sections,
subsections or articles in this Agreement.
ARTICLE II. THE MERGER AND PARTNERSHIP INTEREST TRANSFER
SECTION 2.1 THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time, each Type 1 Partnership, each Type 2
Partnership, the Type 3 Partnership and each Type 4 Partnership shall be merged
(the "Merger") with and into
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Buyer and the separate existence of each such Partnership shall thereupon cease.
Buyer shall be the surviving entity of the Merger and shall continue to be
governed by the laws of the State of Delaware. Buyer shall succeed to and assume
all of the assets, liabilities, rights and obligations of each such Partnership
and the existence of Buyer with all its rights, privileges, immunities, and
franchises shall continue. The Merger shall have the effects specified in the
TRLPA and the DGCL with respect to each Type 1, Type 2, Type 3 and Type 4
Partnership and Buyer.
SECTION 2.2 THE CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of Buyer in effect at the Effective Time shall be the Certificate
of Incorporation of Buyer as the surviving entity of the Merger, until duly
amended in accordance with the terms thereof and the DGCL.
SECTION 2.3 THE BYLAWS. The Bylaws of Buyer in effect at the Effective
Time shall be the Bylaws of Buyer as the surviving entity of the Merger, until
duly amended in accordance with the terms thereof and the DGCL.
SECTION 2.4 CONVERSION OF INTERESTS.
(a) At the Effective Time, the interest of each General Partner and
Limited Partner shall, by virtue of the Merger and without any action on
the part of the owner thereof, be converted into the right to receive the
Exchange Value attributable to such interest plus the Contingent Payment
attributable to such interest. All such General Partner and Limited
Partner interests in the Partnerships shall, by virtue of the Merger and
without any action on the part of the owner thereof, no longer be
outstanding and shall be canceled and shall cease to exist, and each owner
of such interests shall thereafter cease to have any rights, interest or
privileges with respect to such interests or the Partnerships, except the
right to receive the Exchange Value and Contingent Payment.
(b) Each share of Common Stock, $0.01 par value per share ("Common
Stock"), of Buyer issued and outstanding at the Effective Time shall
remain one (1) validly issued, fully paid and nonassessable share of
Common Stock of Buyer, as the surviving entity of the Merger, and all
outstanding shares of Common Stock of Buyer shall continue to represent
shares of Common Stock of Buyer.
SECTION 2.5 EFFECTIVE TIME. At the Closing, each of Buyer, the Type 1
Partnerships, the Type 2 Partnerships, the Type 3 Partnership and the Type 4
Partnerships will cause the certificates of merger (the "Certificates of
Merger") attached hereto as Exhibit B-1 and B-2 to be signed by an authorized
officer of Buyer and by the General Partner of such Type 1, Type 2, Type 3 and
Type 4 Partnerships. On the Closing Date, the Buyer shall cause the Certificates
of Merger to be filed with the Secretary of State of Delaware and the Secretary
of State of Texas in accordance with the provisions of the DGCL and the TRLPA.
The Merger shall become effective at the later of the effective times set forth
in the certified copies of the Certificates of Merger issued by the Secretary of
State of Delaware and the Secretary of State of Texas with respect to the
Merger, and such time is hereinafter referred to as the "Effective Time."
SECTION 2.6 SUBSEQUENT ACTIONS. If, at any time after the Effective Time,
Buyer shall consider or be advised that any deeds, bills of sale, assignments,
assurances, or any other actions or things are necessary or desirable to vest,
perfect, or confirm of record or otherwise in Buyer its right, title, or
interest in, to, or under any of the rights, properties, or assets of any of the
Partnerships acquired or to be acquired by Buyer as a result of or in connection
with the Merger, or otherwise to carry out this Agreement, the officers and
9
directors of Buyer shall be authorized to execute and deliver, in the name and
on behalf of each such Partnership, all such deeds, bills of sale, assignments,
and assurances, and to take and do, in the name and on behalf of such
Partnership, all such other actions and things as may be necessary or desirable
to vest, perfect, or confirm any and all right, title, and interest in, to, and
under such rights, properties, or assets in Buyer or otherwise to carry out this
Agreement.
SECTION 2.7 TRANSFER OF LIMITED PARTNER INTERESTS IN 1988-II LIMITED
PARTNERSHIP, 1989-I LIMITED PARTNERSHIP, TEAI VIII-A AND TEAI VIII-B. On the
terms and conditions set forth herein, on the Closing Date, each Limited Partner
of 1988-II Limited Partnership, 1989-I Limited Partnership, TEAI VIII-A and/or
TEAI VIII-B shall sell, assign and transfer to Bellwether all right, title and
interest in and to the limited partner interest in 1988-II Limited Partnership,
1989-I Limited Partnership, TEAI VIII-A and/or TEAI VIII-B owned by such Limited
Partner, free and clear of all Claims. As consideration for each such transfer,
Buyer shall, upon the terms and subject to the conditions set forth in Article
VII hereof, pay to each Limited Partner of 1988-II Limited Partnership, 1989-I
Limited Partnership, TEAI VIII-A and/or TEAI VIII-B the Exchange Values of such
Limited Partner's interests therein plus the Contingent Payment allocable to
such Limited Partner's interests therein under Article IV. Each Limited Partner
of 1988-II Limited Partnership, 1989-I Limited Partnership, TEAI VIII-A and/or
TEAI VIII-B, by execution of this Agreement, consents to the admission of Black
Hawk as a general partner of such partnerships upon the acquisition by Black
Hawk of the General Partner interests therein on the Closing Date as
contemplated by Section 2.8.
SECTION 2.8 TRANSFER OF GENERAL PARTNER INTERESTS IN 1988-II LIMITED
PARTNERSHIP, 1989-I LIMITED PARTNERSHIP, TEAI VIII-A AND TEAI VIII-B. On the
terms and conditions set forth herein, on the Closing Date, Torch shall sell,
assign and transfer to Black Hawk all right title and interest in and to the
General Partner's interests in 1988-II Limited Partnership, 1989-I Limited
Partnership, TEAI VIII-A and TEAI VIII-B owned by Torch, free and clear of all
Claims. As consideration for such transfers, Buyer shall, upon the terms and
subject to the conditions set forth in Article VII hereof, pay to Torch the
Exchange Values of the General Partner interests in 1988-II Limited Partnership,
1989-I Limited Partnership, TEAI VIII-A and TEAI VIII-B plus the Contingent
Payment allocable to such General Partner interests under Article IV. Torch, by
execution of this Agreement, consents to the admission of Bellwether as a
limited partner of 1988-II Limited Partnership, 1989-I Limited Partnership, TEAI
VIII-A and TEAI VIII-B upon the acquisition by Bellwether of the limited partner
interests therein on the Closing Date as contemplated by Section 2.7.
ARTICLE III. THE TRANSFERS AND CONVEYANCES
SECTION 3.1 NOTE TRANSFERS. On the terms and subject to the conditions set
forth herein, on the Closing Date, the Type 3 Noteholder and the Type 4
Noteholder shall each sell, assign, convey, deliver and transfer to Buyer, and
Buyer shall purchase from the Type 3 Noteholder and the Type 4 Noteholder, free
and clear of all Claims, the Type 3 Note and the Type 4 Notes, respectively;
provided that the Noteholders shall not sell to Buyer their rights to receive
the amounts payable to them under the Settlement Agreement (the sale, transfer
and conveyance of the Type 3 Note and the Type 4 Notes being hereinafter
collectively referred to as the "Note Transfers" and individually as a "Note
Transfer"). As consideration for the Note Transfers, Buyer shall, upon the terms
and subject to the conditions set forth in Article VII hereof, pay to the Type 3
Noteholder and the Type 4 Noteholder the Exchange Value of the Type 3 Note and
Type 4 Notes, respectively, plus the Contingent Payment allocable to such Type 3
Note or Type 4 Notes under Article IV.
10
SECTION 3.2 CONVEYANCE OF TYPE 5 ASSETS. On the terms and subject to the
conditions contained herein, on the Closing Date, but for all purposes
immediately following the Merger, each Type 5 Investor shall, severally and not
jointly, sell, assign, convey, deliver and transfer to Buyer, and Buyer shall
purchase from such Type 5 Investors (collectively, the "Type 5 Transfers"), (i)
the Type 5 Properties owned by such Type 5 Investor, (ii) all accounts
receivable and prepaid items existing as of July 1, 1996, which such Type 5
Investor has a right to receive pursuant to the Type 5 Properties (including any
receivables due to such Type 5 Investor from Torch and its affiliates), and
(iii) all contingent claims and all other rights and obligations under contracts
of such Type 5 Investor that relate to the Type 5 Properties, whether such
claims, obligations and other rights relate to periods before, on or after July
1, 1996; provided, that the Type 5 Investors shall not sell to Buyer their
rights to receive the amounts payable to them under the Settlement Agreement
(such accounts receivable, prepaid items, contingent claims and other rights and
obligations, together with the Type 5 Properties, being hereinafter collectively
referred to as the "Type 5 Assets"). As consideration for the Type 5 Transfers,
Buyer shall, upon the terms and subject to the conditions set forth in Article
VII hereof, pay to each Type 5 Investor the Exchange Value of such Type 5 Assets
plus the Contingent Payment allocable to the Type 5 Assets under Article IV.
SECTION 3.3 CONVEYANCE OF BLACK HAWK STOCK. On the terms and subject to
the conditions contained herein, on the Closing Date, Torch shall sell, assign,
convey, deliver and transfer to Buyer, and Buyer shall purchase from Torch (the
"Black Hawk Transfer"), all of the Black Hawk Stock. As consideration for the
Black Hawk Transfer, Buyer shall, upon the terms and subject to the conditions
set forth in Article VII hereof, pay to Torch the Exchange Value of the Black
Hawk Stock plus the Contingent Payment allocable to the Black Hawk Stock under
Article IV.
SECTION 3.4 CONVEYANCE OF TOGCO STOCK. On the terms and subject to the
conditions contained herein, on the Closing Date, Torch shall sell, assign,
convey, deliver and transfer to Buyer, and Buyer shall purchase from Torch (the
"TOGCO Transfer"), all of the TOGCO Stock. As consideration for the TOGCO
Transfer, Buyer shall, upon the terms and subject to the conditions set forth in
Article VII hereof, pay to Torch the Exchange Value of the TOGCO Stock plus the
Contingent Payment allocable to the TOGCO Stock under Article IV.
SECTION 3.5 CONVEYANCE OF TEA PROPERTIES. On the terms and subject to the
conditions contained herein, on the Closing Date, TEA shall sell, assign,
convey, deliver and transfer to Buyer, and Buyer shall purchase from TEA (the
"TEA Transfer"), (i) the TEA Properties, (ii) all accounts receivable and
prepaid items existing as of July 1, 1996, which are related to the TEA
Properties (including any receivables due to TEA from Torch and its affiliates),
and (iii) all contingent claims and all other rights and obligations under any
contracts to which TEA is a party that relate to the TEA Properties, whether
such claims, obligations and other rights relate to periods before, on or after
July 1, 1996 (such accounts receivable, prepaid items, contingent claims and
other rights and obligations, together with the TEA Properties, being
hereinafter collectively referred to as the "TEA Assets"). As consideration for
the TEA Transfer, Buyer shall, upon the terms and subject to the conditions set
forth in Article VII hereof, pay to TEA the Exchange Value of the TEA Assets
plus the Contingent Payment allocable to the TEA Assets under Article IV.
SECTION 3.6 CONVEYANCE OF TOC PROPERTIES. On the terms and subject to the
conditions contained herein, on the Closing Date, TOC shall sell, assign,
convey, deliver and transfer to Buyer, and Buyer shall purchase from TOC (the
"TOC Transfer"), (i) the TOC Properties, (ii) all accounts receivable and
prepaid items existing as of July 1, 1996,
11
which are related to the TOC Properties (including any receivables due to TOC
from Torch and its affiliates), and (iii) all contingent claims and all other
rights and obligations under any contracts to which TOC is a party that relate
to the TOC Properties, whether such claims, obligations and other rights relate
to periods before, on or after July 1, 1996 (such accounts receivable, prepaid
items, contingent claims and other rights and obligations, together with the TOC
Properties, being hereinafter collectively referred to as the "TOC Assets"). As
consideration for the TOC Transfer, Buyer shall, upon the terms and subject to
the conditions set forth in Article VII hereof, pay to TOC the Exchange Value of
the TOC Assets plus the Contingent Payment allocable to the TOC Assets under
Article IV.
SECTION 3.7 EXTINGUISHMENT OF CERTAIN NOTES. On the terms and subject to
the conditions contained herein, immediately prior to the Closing, the notes
provided for in the respective partnership agreements for 1987-VI STEA Limited
Partnership and 1988-VI STEA Limited Partnership evidencing loans by the limited
partners to such Partnerships shall be deemed to be contributed to the capital
of the respective Partnerships by the limited partners of such Partnerships, and
such notes shall be considered for all purposes to be duly paid and
extinguished.
SECTION 3.8 FURTHER ASSURANCES. If, at any time after the Effective Time,
Buyer shall consider or be advised that any deeds, bills of sale, assignments,
assurances, or any other actions or things are necessary to effectuate the
Transactions contemplated herein in which a party is involved, the Type 5
Investors, TEA or TOC, as appropriate, shall execute and deliver, in the name
and on behalf of such entity, all such deeds, bills of sale, assignments, and
assurances, and to take and do, in the name and on behalf of such entity, all
such other actions and things as may be necessary to effectuate such
Transactions; provided, however, that no Type 5 Investor shall have any
obligation to incur any financial obligation in connection therewith or have any
obligation to prepare such documents.
ARTICLE IV. PAYMENT OF EXCHANGE VALUE; CONTINGENT PAYMENT
SECTION 4.1 PAYMENT OF EXCHANGE VALUE. At the Closing, Buyer will pay to
each Seller the aggregate Exchange Values allocable to the Transaction Assets
owned by such Seller, in cash, by wire transfer of immediately available funds
to the account specified by each such Seller to Buyer prior to Closing. Buyer
shall also pay to each Seller its share of the contingent payment described in
Section 4.2 (the "Contingent Payment"), at the time and in the manner set forth
in Section 4.3.
SECTION 4.2 CONTINGENT PAYMENT. The aggregate amount of the Contingent
Payment payable to the Sellers in the aggregate will be calculated by Buyer on
the 30th day following the Closing Date (the "Calculation Date") and shall be
equal to the lesser of (A) the Closing Escrow Deposit and (B) the product of (i)
13,554,728, MULTIPLIED BY (ii) the amount, if any, by which (x) the Average
NYMEX Price per MMBtu of gas exceeds (y) $2.10 per MMBtu of gas. The Average
NYMEX Price will be determined based upon the closing prices of the New York
Mercantile Exchange ("NYMEX") Natural Gas futures contracts for delivery in each
of the calendar months January through December 1997 (each contract for delivery
in a particular calendar month being herein called a "Contract"). The price for
each Contract for which trading has closed on or prior to the Calculation Date
will be equal to the closing price with respect to such Contract on the last day
on which such Contract was traded on the NYMEX (e.g., the price for the January
1997 Contract is equal to the closing price on the last trading day in December
1996 of the NYMEX January 1997 Natural Gas futures contract). The actual prices
of Contracts for January, February and March, 1997, are $4.00, $2.99 and $1.78,
respectively. The price
12
for each Contract for which trading has not closed on or prior to the
Calculation Date will be equal to the average of the closing prices with respect
to such Contract on each of the days on which such Contract is traded on the
NYMEX between the Closing Date and the Calculation Date (e.g., assuming the
Closing Date is April 30, 1997, the price for the December 1997 Contract will be
equal to the average of the closing prices on each trading day beginning May 1
and ending May 29, 1997, for the NYMEX December 1997 Natural Gas futures
contract). The "Average NYMEX Price" will be equal to the quotient of (A) the
sum of the prices for the January through December 1997 Contracts, DIVIDED BY
(B) twelve (12).
SECTION 4.3 ESCROW DEPOSITS.
(a) Contemporaneously with the execution of this Agreement, Buyer
will deposit $10,000,000.00 (the "Deposit") in an interest bearing escrow
account (the "Signing Escrow Account") with Bank One, Texas, N.A. (the
"Escrow Agent"). In the event the Transactions are consummated in
accordance with the terms hereof, the Deposit, together with interest
thereon, shall be applied first to the Closing Escrow Deposit, and the
remainder shall be paid to Buyer in order that Buyer may apply such
amounts to the payments required to be made by Buyer to Sellers at the
Closing. In the event that the Transactions fail to close for reasons
other than a breach by any Institutional Seller of any of its obligations
under this Agreement, the failure of a Type 5 Investor to receive all
consents and other actions required by Section 7.3(b)(ii) or the failure
of Sellers' Financial Advisor to deliver the fairness opinion required by
Section 7.3(b)(iii), the entire amount of the Deposit, together with
interest thereon, shall be disbursed and paid to the Sellers, pro-rata in
accordance with the ratio the Exchange Value as of July 1, 1996 of each
such Seller bears to the aggregate Exchange Value of all Sellers as of
such date, by wire transfer of immediately available funds, upon the
Escrow Agent's receipt of written instructions to such effect signed by a
duly authorized officer of Buyer and each of the Institutional Sellers. In
the event this Agreement is terminated by Buyer because of a breach by any
Institutional Seller of any of its obligations under this Agreement, the
failure of a Type 5 Investor to receive all consents and other actions
required by Section 7.3(b)(ii) or the failure of Sellers' Financial
Advisor to deliver the fairness opinion required by Section 7.3(b)(iii),
then the entire amount of the Deposit, together with interest thereon,
shall be released to Buyer upon the Escrow Agent's receipt of written
instructions to such effect signed by a duly authorized officer of Buyer
and each of the Institutional Sellers. Torch and each of the Institutional
Sellers agree that any amounts received from Bellwether pursuant to this
Section 4.3(a) in the event the Transactions do not close shall not be
taken into account in determining "payout" with regard to any
Institutional Program. THE PARTIES HEREBY ACKNOWLEDGE THAT THE EXTENT OF
DAMAGES TO SELLERS OCCASIONED BY THE FAILURE OF THE TRANSACTIONS TO BE
CONSUMMATED WOULD BE IMPOSSIBLE OR EXTREMELY DIFFICULT TO ASCERTAIN AND
THAT THE AMOUNT OF THE DEPOSIT IS A FAIR AND REASONABLE ESTIMATE OF SUCH
DAMAGES UNDER THE CIRCUMSTANCES AND DOES NOT CONSTITUTE A PENALTY.
(b) At the Closing, Buyer will deposit $9,011,853.00 (the "Closing
Escrow Deposit") in an interest bearing escrow account (the "Closing
Escrow Account") with the Escrow Agent to secure payment of the Contingent
Payment. On the Calculation Date, an amount equal to the Contingent
Payment calculated under Section 4.2 will be released from the Closing
Escrow Account and paid to the Sellers participating in the Transactions,
in accordance with each such Seller's
13
share of such Contingent Payment as set forth below, by wire transfer of
immediately available funds. Each Seller's share of the Contingent Payment
shall be calculated by determining the Exchange Value which would have
been paid to such Seller if the Contingent Payment were added to the
$188,347,731 purchase price and such amount were allocated among the
Sellers using the procedures employed to allocate the Exchange Value set
forth on Exhibit A. The balance of the principal amount of the Closing
Escrow Deposit, if any, shall be paid to Buyer by wire transfer of
immediately available funds simultaneous with the payments to Sellers. If
a person identified as a Seller on Exhibit A does not participate in a
Transaction, the Contingent Payment allocable to such Seller with respect
to the assets not transferred will be paid to Buyer. Interest on the
Closing Escrow Deposit will be disbursed from the Closing Escrow Account
and paid to Buyer and each of the Sellers participating in the
Transactions pro rata based upon the principal amount of the Closing
Escrow Deposit distributed to each of them. Buyer and Sellers' Financial
Advisor shall certify the amount of the Contingent Payment and Torch and
Sellers' Financial Advisor shall certify each Seller's share thereof to
the Escrow Agent promptly after it is calculated.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
SECTION 5.1 REPRESENTATIONS AND WARRANTIES OF BELLWETHER AND BUYER.
Bellwether and Buyer hereby jointly and severally represent and warrant, as of
the date hereof and as of the Closing Date, to the parties hereto as follows:
(a) ORGANIZATION, QUALIFICATION AND GOOD STANDING. Each of
Bellwether and Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to carry on its business, as now
con ducted, and to own or lease its properties and other assets as now
owned or leased. Each of Bellwether and Buyer is duly qualified and in
good standing in all jurisdictions where the nature of its assets or
business requires such qualification, except where the failure to be so
qualified or in good standing would not have a material adverse effect on
it.
(b) DUE AUTHORIZATION; VALID, BINDING AND ENFORCEABLE. Each of
Bellwether and Buyer has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the Transactions. The
execution, delivery and performance of this Agreement and the consummation
of the Transactions have been duly authorized by all necessary corporate
action on the part of Bellwether and Buyer. This Agreement has been duly
executed and delivered by Bellwether and Buyer and, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes the legal, valid and binding obligation of Bellwether and
Buyer enforceable in accordance with its terms, except as limited by
bankruptcy or other laws applicable generally to creditor's rights and as
limited by general equitable principles.
(c) NO VIOLATION; APPROVALS. The execution, delivery and performance
by Bellwether and Buyer of this Agreement and the consummation of the
Transactions, will not violate any provision of law or conflict with, or
result in any breach of, or constitute a default under, or result in the
creation of a lien, claim or encumbrance on any of the properties or
assets of Bellwether or Buyer pursuant to any corporate charter, bylaw or
regulation or any agreement, instrument, judgment or decree to which
Bellwether or Buyer is a party or by either of them or their respective
properties is or may be bound or affected, or eliminate or impair any
intangible right, concession (including any tax concession), license or
privilege
14
allowed to or enjoyed by Bellwether or Buyer. Other than those requisite
consents and approvals, if any, relating solely to the Properties, no ap
proval, authorization, consent, order or other action of, or filing with,
any person, firm or corporation, or any court, administrative agency or
other governmental authority, domestic or foreign, is required in
connection with the execution and delivery by Buyer of this Agreement and
the consummation by Bellwether or Buyer of the Transactions.
(d) COMPLETE DISCLOSURE. No representation or warranty made by
Bellwether or Buyer in this Agreement nor any certificate, schedule,
statement, document or instrument furnished or to be furnished to Sellers
pursuant hereto, or in connection with the negotiation, execution or
performance of this Agreement or the consummation of the Transactions,
contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact required to be stated herein or
therein or necessary to make any statement herein or therein, under the
circumstances under which they are or will be made, not misleading.
(e) KNOWLEDGEABLE BUYER; NO DISTRIBUTION. Each of Bellwether and
Buyer is a knowledgeable purchaser, owner and operator of oil and gas
properties, has the ability to evaluate (and in fact has evaluated) the
Properties and the other Transaction Assets for purchase, and is acquiring
the Properties and the other Transaction Assets for its own account and
not with the intent to make a distribution thereof in violation of the
Securities Act (and the rules and regulations pertaining thereto) or in
violation of any other applicable securities law, rule or regulation.
(f) TORCH CONSIDERATION. Pages 12, 13, 57 and 58 from the Common
Stock Prospectus attached hereto as Exhibit D and constituting a part of
the Registration Statement describe, in all material respects, the
payments and all other direct and indirect consideration to be made or
paid to Torch and its affiliates by Buyer, Bellwether and Bellwether
affiliates in connection with the Transactions.
(g) REGISTRATION STATEMENT. Each of Bellwether and Buyer acknowledge
and agree that none of the Institutional Sellers have provided any
information for inclusion in the Registration Statement, have reviewed or
commented on the Registration Statement, have had any duty or obligation
to provide information for, or to review or comment on, the Registration
Statement, or otherwise have any duties or responsibilities with respect
thereto. Unless required by law, no Institutional Seller's name or any
derivative thereof shall be disclosed, referred to or otherwise used in
the Registration Statement or any press releases or other agreements or
material prepared in connection with the Registration Statement.
(h) PARTY IN INTEREST. Neither Bellwether nor Buyer is a "party in
interest" relative to the Type 5 Investors pursuant to the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder.
(i) HSR ACT. Each of Bellwether and Buyer represent and warrant that
as a result of the Transactions, Sellers are not required to file notice
pursuant to the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as
amended.
SECTION 5.2 REPRESENTATIONS AND WARRANTIES OF EACH PARTNERSHIP. Each
Partnership hereby severally and not jointly represents and warrants, as of the
date hereof and as of the Closing Date, as to itself, to the parties hereto as
follows (provided that no
15
Partnership has any duties or obligations with respect to the representations
and warranties of any other Partnership):
(a) FORMATION AND AUTHORITY OF EACH PARTNERSHIP. Such Partnership is
a limited partnership legally formed, duly organized and validly existing
under the laws of the State of Texas. Such Partnership has the power and
authority to carry on its business as now conducted and to own or lease
its properties and other assets as now owned or leased. Such Partnership
is duly qualified and in good standing in all jurisdictions where the
nature of its assets or business requires such qualification, except where
the failure to be so qualified or in good standing would not have a
material adverse effect on such Partnership.
(b) IDENTITY OF PARTNERS. The identity of each General Partner and
Limited Partner of such Partnership and their respective interests in such
Partnership on the date hereof are set forth on Exhibit A hereto. There
are outstanding no options, warrants, rights, calls, subscription rights
or commitments of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for, any general or limited
partner interest of such Partnership, or contracts, understandings or
arrangements to which such Partnership is a party, or by which it is or
may be bound, to issue additional general or limited partner interests, or
options, warrants, rights, calls, subscription rights or rights
convertible into or exchangeable for, any additional general or limited
partner rights other than options held by the Type 3 Noteholder or Type 4
Noteholder to acquire the Limited Partner interests in the Type 3
Partnership or the Type 4 Partnerships (as the case may be) and the
respective loan agreements relating thereto or except as specifically set
forth in the partnership agreement of such Partnership.
(c) DUE AUTHORIZATION; VALID, BINDING AND ENFORCEABLE. Such
Partnership has all requisite power and authority to enter into this
Agreement and all agreements contemplated hereby and to consummate the
Merger (or in the case of 1988-II Limited Partnership, 1989-I Limited
Partnership, TEAI VIII-A and TEAI VIII-B, the transactions contemplated by
Sections 2.7 and 2.8) and perform its obligations hereunder. Subject to
the approvals obtained in Sections 2.7, 2.8 and 6.1, the execution,
delivery and performance of this Agreement and all agreements contemplated
hereby and the consummation of the Merger (or in the case of 1988-II
Limited Partnership, 1989-I Limited Partnership, TEAI VIII-A and TEAI
VIII-B, the transactions contemplated by Sections 2.7 and 2.8) have been
duly authorized by all required actions of such Partnership. This
Agreement has been duly executed and delivered by such Partnership and
constitutes the legal, valid and binding obligation of such Partnership
enforceable in accordance with its terms, except as limited by bankruptcy,
or other laws applicable generally to creditor's rights and as limited by
general equitable principles.
(d) NO VIOLATION; APPROVALS. Other than the consents and approvals
obtained in Sections 2.7, 2.8 and 6.1 and those relating solely to the Oil
and Gas Properties being transferred hereunder, the execution, delivery
and performance by such Partnership of this Agreement and the consummation
of the Merger (or in the case of 1988-II Limited Partnership, 1989-I
Limited Partnership, TEAI VIII-A and TEAI VIII-B, the transactions
contemplated by Sections 2.7 and 2.8), will not violate any provision of
law or conflict with, or result in any breach of, or constitute a default
under, or result in the creation of a lien, claim or encumbrance on any of
the material properties or assets of such Partnership pursuant to any
term, provision or regulation of its certificate or agreement of limited
partnership or similar constituent document or any agreement, instrument,
judgment or decree
16
to which such Partnership is a party or by which it or its properties is
or may be bound or affected, or eliminate or impair any intangible right,
concession (including any tax concession), license or privilege allowed to
or enjoyed by such Partnership. Other than the consents and approvals
obtained in Sections 2.7, 2.8 and 6.1 and those relating solely to the Oil
and Gas Properties being transferred hereunder, no approval,
authorization, consent, order or other action of, or filing with, any
person, firm or corporation, or any court, administrative agency or other
governmental authority, domestic or foreign, is required in connection
with the execution and delivery by such Partnership of this Agreement or
the consummation by such Partnership of the Merger (or in the case of
1988-II Limited Partnership, 1989-I Limited Partnership, TEAI VIII-A and
TEAI VIII-B, the transactions contemplated by Sections 2.7 and 2.8).
(e) WARRANTY OF TITLE. Such Partnership warrants its right, title
and interest to its respective Properties unto Buyer by, through and under
such Partnership, but not otherwise.
(f) DISCLAIMERS. THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE
PARTNERSHIPS CONTAINED IN THIS SECTION 5.2 (INCLUDING, WITHOUT LIMITATION,
THE SPECIAL WARRANTY OF TITLE CONTAINED IN SECTION 5.2(e) ABOVE) ARE
EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE PARTNERSHIPS EXPRESSLY
DISCLAIM ANY AND ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES. WITHOUT
LIMITATION OF THE FOREGOING, THE PARTNERSHIPS MAKE NO WARRANTY OR
REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR
RELATING TO ANY LIABILITIES OF THE PARTNERSHIPS, INCLUDING ANY
ENVIRONMENTAL LIABILITIES, THE CONDITION, QUANTITY, QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, CONFORMITY TO THE MODELS OR SAMPLES OF MATERIALS OR
MERCHANTABILITY OF ANY EQUIPMENT OR ITS FITNESS FOR ANY PURPOSE, OR,
EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION, ANY OTHER EXPRESS, IMPLIED,
STATUTORY OR OTHER WARRANTY OR REPRESENTATION WHATSOEVER. BUYER SHALL HAVE
INSPECTED, OR WAIVED (AND UPON CLOSING SHALL BE DEEMED TO HAVE WAIVED) ITS
RIGHT TO INSPECT, THE OIL AND GAS PROPERTIES FOR ALL PURPOSES AND
SATISFIED ITSELF AS TO THEIR PHYSICAL AND ENVIRONMENTAL CONDITION, BOTH
SURFACE AND SUBSURFACE, INCLUDING BUT NOT LIMITED TO CONDITIONS
SPECIFICALLY RELATED TO THE PRESENCE, RELEASE OR DISPOSAL OF HAZARDOUS
SUBSTANCES, SOLID WASTES, ASBESTOS AND OTHER MAN MADE FIBERS, OR NATURALLY
OCCURRING RADIOACTIVE MATERIALS. BUYER IS RELYING SOLELY UPON ITS OWN
INSPECTION OF THE PROPERTIES, AND BUYER SHALL, EXCEPT AS PROVIDED
OTHERWISE HEREIN, ACCEPT ALL OF THE SAME IN THEIR "AS IS, WHERE IS"
CONDITION. ALSO WITHOUT LIMITATION OF THE FOREGOING, AND EXCEPT AS
PROVIDED OTHERWISE IN THIS SECTION, NO PARTNERSHIP MAKES ANY WARRANTY OR
REPRESENTATION, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO THE
ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS, PROJECTIONS,
INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER FURNISHED OR MADE
AVAILABLE TO BUYER IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT
LIMITATION, RELATIVE TO
17
PRICING ASSUMPTIONS, OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF
ANY) ATTRIBUTABLE TO THE PROPERTIES OR THE ABILITY OR POTENTIAL OF THE
PROPERTIES TO PRODUCE HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE
PROPERTIES OR ANY OTHER MATTERS CONTAINED IN THE DATA OR ANY OTHER
MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER BY ANY PARTNERSHIP OR BY
ANY PARTNERSHIP'S AGENTS OR REPRESENTATIVES OR BY ANY OTHER PARTY. ANY AND
ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION AND OTHER
MATERIALS (WRITTEN OR ORAL) FURNISHED OR OTHERWISE MADE AVAILABLE OR
DISCLOSED TO BUYER ARE PROVIDED TO BUYER AS A CONVENIENCE AND SHALL NOT
CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST ANY PARTNERSHIP AND ANY
RELIANCE ON OR USE OF THE SAME SHALL BE AT BUYER'S SOLE RISK TO THE
MAXIMUM EXTENT PERMITTED BY LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN OR IN ANY PARTNERSHIP OR OTHER AGREEMENT OR PURSUANT TO
ANY LAW, RULE OR REGULATION APPLICABLE TO ANY PARTNERSHIP, NEITHER THE
TYPE 3 NOTEHOLDER NOR THE TYPE 4 NOTEHOLDER NOR ANY LIMITED PARTNER SHALL
EVER HAVE ANY OBLIGATION OR LIABILITY TO BUYER OR BELLWETHER TO RETURN OR
REPAY ANY EXCHANGE VALUE, CONTINGENT PAYMENT OR OTHER AMOUNT BECAUSE OF
ANY BREACH OR VIOLATION BY ANY PARTNERSHIP OF ITS REPRESENTATIONS,
WARRANTIES OR AGREEMENTS SET FORTH IN THIS SECTION 5.2 OR ELSEWHERE IN
THIS AGREEMENT.
SECTION 5.3 REPRESENTATIONS AND WARRANTIES OF EACH PARTNER. Each Partner
(including Torch and its affiliates in their capacities as a Partner) hereby
severally and not jointly represents and warrants, as of the date hereof and as
of the Closing Date, as to itself, to the parties hereto as follows (provided
that no Partner has any duties or obligations with respect to the
representations and warranties of any other Partner):
(a) ORGANIZATION, CORPORATE POWER AND GOOD STANDING OF EACH PARTNER.
Such Partner, if it is a corporation, is duly organized, validly existing
in good standing under the laws of the state of its incorporation and, if
not a corporation, is legally formed, duly organized, validly existing
and, if applicable, in good standing under the laws of its state of
formation. Such Partner has the power and authority to own its interests
in the Partnerships.
(b) OWNERSHIP OF INTERESTS. Such Partner owns all right, title and
interest in and to (and has the unrestricted right, power and authority to
vote) the General Partner or Limited Partner interests identified on
Exhibit A as being owned by such Partner, free and clear of any Claims,
and such Partner has not made any assignment thereof to any other person.
(c) DUE AUTHORIZATION; VALID, BINDING AND ENFORCEABLE. Such Partner
has all requisite power and authority to enter into this Agreement and all
agreements contemplated hereby and to perform its obligations hereunder
and thereunder. The execution, delivery and performance of this Agreement
and all agreements contemplated hereby and the consummation of each
Transaction applicable to such Partner have been duly authorized by all
required actions of such Partner. This Agreement has been duly executed
and delivered by such Partner and constitutes the legal, valid and binding
obligation of such Partner enforceable in accordance with its terms,
except as limited by bankruptcy, or other laws
18
applicable generally to creditor's rights and as limited by general
equitable principles.
(d) NO VIOLATION; APPROVALS. The execution, delivery and performance
by such Partner of this Agreement and the consummation of each Transaction
applicable to such Partner will not violate any provision of law that
would have a material adverse effect on the Transactions applicable to
such Partner.
(e) DISCLAIMERS. THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE
PARTNERS CONTAINED IN THIS SECTION 5.3 ARE EXCLUSIVE AND ARE IN LIEU OF
ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND THE PARTNERS EXPRESSLY DISCLAIM ANY AND ALL SUCH OTHER
REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITATION OF THE FOREGOING, THE
PARTNERS MAKE NO WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, OR RELATING TO ANY LIABILITIES OF THE
PARTNERSHIPS, INCLUDING ANY ENVIRONMENTAL LIABILITIES, THE CONDITION,
QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO THE
MODELS OR SAMPLES OF MATERIALS OR MERCHANTABILITY OF ANY EQUIPMENT OR ITS
FITNESS FOR ANY PURPOSE, OR, EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION,
ANY OTHER EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY OR REPRESENTATION
WHATSOEVER. BUYER SHALL HAVE INSPECTED, OR WAIVED (AND UPON CLOSING SHALL
BE DEEMED TO HAVE WAIVED) ITS RIGHT TO INSPECT, THE OIL AND GAS PROPERTIES
FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND
ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE, INCLUDING BUT NOT
LIMITED TO CONDITIONS SPECIFICALLY RELATED TO THE PRESENCE, RELEASE OR
DISPOSAL OF HAZARDOUS SUBSTANCES, SOLID WASTES, ASBESTOS AND OTHER MAN
MADE FIBERS, OR NATURALLY OCCURRING RADIOACTIVE MATERIALS. BUYER IS
RELYING SOLELY UPON ITS OWN INSPECTION OF THE PROPERTIES, AND BUYER SHALL,
EXCEPT AS PROVIDED OTHERWISE HEREIN, ACCEPT ALL OF THE SAME IN THEIR "AS
IS, WHERE IS" CONDITION. ALSO WITHOUT LIMITATION OF THE FOREGOING, AND
EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION, NO PARTNER MAKES ANY
WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS
TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS,
PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER
FURNISHED OR MADE AVAILABLE TO BUYER IN CONNECTION WITH THIS AGREEMENT
INCLUDING, WITHOUT LIMITATION, RELATIVE TO PRICING ASSUMPTIONS, OR QUALITY
OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE
PROPERTIES OR THE ABILITY OR POTENTIAL OF THE PROPERTIES TO PRODUCE
HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE PROPERTIES OR ANY OTHER
MATTERS CONTAINED IN THE DATA OR ANY OTHER MATERIALS FURNISHED OR MADE
AVAILABLE TO BUYER BY ANY PARTNER OR BY ANY PARTNER'S AGENTS OR
REPRESENTATIVES OR BY ANY OTHER PARTY. ANY AND ALL SUCH DATA, RECORDS,
REPORTS, PROJECTIONS, INFORMATION AND OTHER MATERIALS (WRITTEN OR ORAL)
FURNISHED OR OTHERWISE MADE AVAILABLE OR DISCLOSED TO BUYER ARE PROVIDED
TO BUYER AS A
19
CONVENIENCE AND SHALL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR
AGAINST ANY PARTNER AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT
BUYER'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY PARTNERSHIP OR OTHER
AGREEMENT OR PURSUANT TO ANY LAW, RULE OR REGULATION APPLICABLE TO ANY
PARTNERSHIP, NO LIMITED PARTNER SHALL EVER HAVE ANY OBLIGATION OR
LIABILITY TO BUYER OR BELLWETHER TO RETURN OR REPAY ANY EXCHANGE VALUE,
CONTINGENT PAYMENT OR OTHER AMOUNT BECAUSE OF ANY BREACH OR VIOLATION BY
ANY OTHER PARTNER OF ITS REPRESENTATIONS, WARRANTIES OR AGREEMENTS SET
FORTH IN THIS SECTION 5.3 OR ELSEWHERE IN THIS AGREEMENT.
SECTION 5.4 REPRESENTATIONS AND WARRANTIES OF THE TYPE 3 NOTEHOLDER AND
TYPE 4 NOTEHOLDER. The Type 3 Noteholder and Type 4 Noteholder hereby severally
and not jointly represents and warrants as to itself, as of the date hereof and
as of the Closing Date, as to itself, to the parties hereto as follows (provided
that no Noteholder has any duties or obligations with respect to the
representations and warranties of any other Noteholder):
(a) ORGANIZATION, CORPORATE POWER AND GOOD STANDING OF EACH
NOTEHOLDER. Such Noteholder, if it is a corporation, is duly organized,
validly existing in good standing under the laws of the state of its
incorporation and, if not a corporation, is legally formed, duly
organized, validly existing and, if applicable, in good standing under the
laws of its state of formation. Such Noteholder has the power and
authority to own the Type 3 Note or Type 4 Notes, as the case may be.
(b) OWNERSHIP OF NOTES. Such Noteholder owns all right, title and
interest in and to (and has the unrestricted right, power and authority to
transfer and sell) the Type 3 Note or Type 4 Note owned by it, free and
clear of any Claims, and such Noteholder has not made any assignment
thereof to any other person.
(c) DUE AUTHORIZATION; VALID, BINDING AND ENFORCEABLE. Such
Noteholder has all requisite power and authority to enter into this
Agreement and all agreements contemplated hereby and to consummate the
applicable Note Transfer and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement and all agreements
contemplated hereby and the consummation of the applicable Note Transfer
have been duly authorized by all required actions of such Noteholder. This
Agreement has been duly executed and delivered by such Noteholder and
constitutes the legal, valid and binding obligation of such Noteholder
enforceable in accordance with its terms, except as limited by bankruptcy,
or other laws applicable generally to creditor's rights and as limited by
general equitable principles.
(d) NO VIOLATION; APPROVALS. The execution, delivery and performance
by such Noteholder of this Agreement and the consummation of the
applicable Note Transfer will not violate any provision of law that would
have a material adverse effect on the Transactions.
(e) PURCHASE OPTIONS. Such Noteholder owns the option to purchase an
interest in a Type 3 Partnership or a Type 4 Partnership (as the case may
be) free of any Claim.
20
(f) DISCLAIMERS. THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE
NOTEHOLDERS CONTAINED IN THIS SECTION 5.4 ARE EXCLUSIVE AND ARE IN LIEU OF
ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND THE NOTEHOLDERS EXPRESSLY DISCLAIM ANY AND ALL SUCH OTHER
REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITATION OF THE FOREGOING, THE
NOTEHOLDERS MAKE NO WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, OR RELATING TO ANY LIABILITIES, INCLUDING
ENVIRONMENTAL LIABILITIES, THE CONDITION, QUANTITY, QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, CONFORMITY TO THE MODELS OR SAMPLES OF MATERIALS OR
MERCHANTABILITY OF ANY EQUIPMENT OR ITS FITNESS FOR ANY PURPOSE, OR,
EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION, ANY OTHER EXPRESS, IMPLIED,
STATUTORY OR OTHER WARRANTY OR REPRESENTATION WHATSOEVER. BUYER SHALL HAVE
INSPECTED, OR WAIVED (AND UPON CLOSING SHALL BE DEEMED TO HAVE WAIVED) ITS
RIGHT TO INSPECT, THE OIL AND GAS PROPERTIES FOR ALL PURPOSES AND
SATISFIED ITSELF AS TO THEIR PHYSICAL AND ENVIRONMENTAL CONDITION, BOTH
SURFACE AND SUBSURFACE, INCLUDING BUT NOT LIMITED TO CONDITIONS
SPECIFICALLY RELATED TO THE PRESENCE, RELEASE OR DISPOSAL OF HAZARDOUS
SUBSTANCES, SOLID WASTES, ASBESTOS AND OTHER MAN MADE FIBERS, OR NATURALLY
OCCURRING RADIOACTIVE MATERIALS. BUYER IS RELYING SOLELY UPON ITS OWN
INSPECTION OF THE PROPERTIES, AND BUYER SHALL, EXCEPT AS PROVIDED
OTHERWISE HEREIN, ACCEPT ALL OF THE SAME IN THEIR "AS IS, WHERE IS"
CONDITION. ALSO WITHOUT LIMITATION OF THE FOREGOING, AND EXCEPT AS
PROVIDED OTHERWISE IN THIS SECTION, NO NOTEHOLDER MAKES ANY WARRANTY OR
REPRESENTATION, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO THE
ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS, PROJECTIONS,
INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER FURNISHED OR MADE
AVAILABLE TO BUYER IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT
LIMITATION, RELATIVE TO PRICING ASSUMPTIONS, OR QUALITY OR QUANTITY OF
HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE PROPERTIES OR THE
ABILITY OR POTENTIAL OF THE PROPERTIES TO PRODUCE HYDROCARBONS OR THE
ENVIRONMENTAL CONDITION OF THE PROPERTIES OR ANY OTHER MATTERS CONTAINED
IN THE DATA OR ANY OTHER MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER BY
ANY NOTEHOLDER OR BY ANY NOTEHOLDER'S AGENTS OR REPRESENTATIVES OR BY ANY
OTHER PARTY. ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS,
INFORMATION AND OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED OR OTHERWISE
MADE AVAILABLE OR DISCLOSED TO BUYER ARE PROVIDED TO BUYER AS A
CONVENIENCE AND SHALL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR
AGAINST ANY NOTEHOLDER AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT
BUYER'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY PARTNERSHIP OR OTHER
AGREEMENT OR PURSUANT TO ANY LAW, RULE OR REGULATION APPLICABLE TO ANY
PARTNERSHIP OR NOTEHOLDER, NO NOTEHOLDER SHALL EVER HAVE ANY OBLIGATION OR
LIABILITY TO BUYER OR BELLWETHER TO RETURN OR REPAY ANY
21
EXCHANGE VALUE, CONTINGENT PAYMENT OR OTHER AMOUNT BECAUSE OF ANY BREACH
OR VIOLATION BY ANY OTHER NOTEHOLDER OF ITS REPRESENTATIONS, WARRANTIES OR
AGREEMENTS SET FORTH IN THIS SECTION 5.4 OR ELSEWHERE IN THIS AGREEMENT.
SECTION 5.5 REPRESENTATIONS AND WARRANTIES OF TYPE 5 INVESTORS. Each Type
5 Investor (including Torch in its capacity as a Type 5 Investor) hereby
severally and not jointly represents and warrants, as of the date hereof and as
of the Closing Date, as to itself, to the parties hereto as follows (provided
that no Type 5 Investor has any duties or obligations with respect to the
representations and warranties of any other Type 5 Investor):
(a) ORGANIZATION, CORPORATE POWER AND GOOD STANDING. Such Type 5
Investor, if a corporation, is a corporation duly organized, validly
existing in good standing under the laws of its state of incorporation. If
such Type 5 Investor is another entity, it is legally formed, duly
organized, validly existing in good standing under the laws of its state
of formation. Such Type 5 Investor has the power and authority to carry on
its business as now conducted and to own or lease its properties and other
assets as now owned or leased.
(b) DUE AUTHORIZATION; VALID, BINDING AND ENFORCEABLE. Such Type 5
Investor has all requisite power and authority to enter into this
Agreement and all agreements contemplated hereby and to consummate the
applicable Type 5 Transfer and perform its obligations hereunder and
thereunder. The execution, delivery and performance of this Agreement and
all agreements contemplated hereby and the consummation of the applicable
Type 5 Transfer have been duly authorized by all required actions of such
Type 5 Investor. This Agreement has been duly executed and delivered by
such Type 5 Investor and constitutes the legal, valid and binding
obligation of such Type 5 Investor enforceable in accordance with its
terms, except as limited by bankruptcy, or other laws applicable generally
to creditor's rights and as limited by general equitable principles.
(c) NO VIOLATION; APPROVALS. Other than the consents and approvals
obtained in Sections 2.7, 2.8 and 6.1 and those relating solely to the Oil
and Gas Properties being transferred hereunder, the execution, delivery
and performance by such Type 5 Investor of this Agreement and the
consummation of the applicable Type 5 Transfer, will not violate any
provision of law or conflict with, or result in any breach of, or
constitute a default under, or result in the creation of a lien, claim or
encumbrance on any of the properties or assets of such Type 5 Investor
pursuant to any corporate charter, bylaw or regulation or any agreement,
instrument, judgment or decree to which such entity is a party or by which
it or its properties is or may be bound or affected, or eliminate or
impair any intangible right, concession (including any tax concession),
license or privilege allowed to or enjoyed by such party. Other than the
consents and approvals obtained in Sections 2.7, 2.8 and 6.1 and those
relating solely to the Oil and Gas Properties being transferred hereunder,
no approval, authorization, consent, order or other action of, or filing
with, any person, firm or corporation, or any court, administrative agency
or other governmental authority, domestic or foreign, is required in
connection with the execution and delivery by such Type 5 Investor of this
Agreement or the consummation by such Type 5 Investor of the applicable
Type 5 Transfer.
(d) WARRANTY OF TITLE. Such Type 5 Investor warrants that is has not
conveyed, or created a Claim on, any interest conveyed to such Type 5
Investor in
22
the conveyances listed on Schedule B except in transactions in which
Torch, Black Hawk, TOC or TOGCO was also a party.
(e) DISCLAIMERS. THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE
TYPE 5 INVESTORS CONTAINED IN THIS SECTION 5.5 (INCLUDING, WITHOUT
LIMITATION, THE SPECIAL WARRANTY OF TITLE CONTAINED IN SECTION 5.5(d)
ABOVE) ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE TYPE 5
INVESTORS EXPRESSLY DISCLAIM ANY AND ALL SUCH OTHER REPRESENTATIONS AND
WARRANTIES. WITHOUT LIMITATION OF THE FOREGOING, THE TYPE 5 ASSETS SHALL
BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR RELATING TO ANY LIABILITIES
RELATED TO THE PROPERTIES FROM WHICH THE NET PROFITS INTERESTS ARE
CREATED, INCLUDING ANY ENVIRONMENTAL LIABILITIES, THE CONDITION, QUANTITY,
QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO THE MODELS OR
SAMPLES OF MATERIALS OR MERCHANTABILITY OF ANY EQUIPMENT OR ITS FITNESS
FOR ANY PURPOSE, AND, EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION,
WITHOUT ANY OTHER EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY OR
REPRESENTATION WHATSOEVER. BUYER SHALL HAVE INSPECTED, OR WAIVED (AND UPON
CLOSING SHALL BE DEEMED TO HAVE WAIVED) ITS RIGHT TO INSPECT, THE
PROPERTIES FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND
ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE, INCLUDING BUT NOT
LIMITED TO CONDITIONS SPECIFICALLY RELATED TO THE PRESENCE, RELEASE OR
DISPOSAL OF HAZARDOUS SUBSTANCES, SOLID WASTES, ASBESTOS AND OTHER MAN
MADE FIBERS, OR NATURALLY OCCURRING RADIOACTIVE MATERIALS. BUYER IS
RELYING SOLELY UPON ITS OWN INSPECTION OF THE PROPERTIES, AND BUYER SHALL,
EXCEPT AS PROVIDED OTHERWISE HEREIN, ACCEPT ALL OF THE SAME IN THEIR "AS
IS, WHERE IS" CONDITION. ALSO WITHOUT LIMITATION OF THE FOREGOING, AND
EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION, NO TYPE 5 INVESTOR MAKES ANY
WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS
TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS,
PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER
FURNISHED OR MADE AVAILABLE TO BUYER IN CONNECTION WITH THIS AGREEMENT
INCLUDING, WITHOUT LIMITATION, RELATIVE TO PRICING ASSUMPTIONS, OR QUALITY
OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE
PROPERTIES OR THE ABILITY OR POTENTIAL OF THE PROPERTIES TO PRODUCE
HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE PROPERTIES OR ANY OTHER
MATTERS CONTAINED IN THE DATA OR ANY OTHER MATERIALS FURNISHED OR MADE
AVAILABLE TO BUYER BY ANY TYPE 5 INVESTOR OR BY ANY OF SUCH PARTY'S AGENTS
OR REPRESENTATIVES OR BY ANY OTHER PARTY. ANY AND ALL SUCH DATA, RECORDS,
REPORTS, PROJECTIONS, INFORMATION AND OTHER MATERIALS (WRITTEN OR ORAL)
FURNISHED OR OTHERWISE MADE AVAILABLE OR DISCLOSED TO BUYER ARE PROVIDED
TO BUYER AS A CONVENIENCE AND SHALL NOT CREATE OR GIVE RISE TO ANY
LIABILITY OF OR AGAINST ANY TYPE 5 INVESTOR
23
AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT BUYER'S SOLE RISK TO
THE MAXIMUM EXTENT PERMITTED BY LAW. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN OR IN ANY OTHER AGREEMENT OR PURSUANT TO ANY
LAW, RULE OR REGULATION APPLICABLE TO ANY TYPE 5 INVESTOR, NO TYPE 5
INVESTOR SHALL EVER HAVE ANY OBLIGATION OR LIABILITY TO BUYER OR
BELLWETHER TO RETURN OR REPAY ANY EXCHANGE VALUE, CONTINGENT PAYMENT OR
OTHER AMOUNT BECAUSE OF ANY BREACH OR VIOLATION BY ANY OTHER TYPE 5
INVESTOR OF ITS REPRESENTATIONS, WARRANTIES OR AGREEMENTS SET FORTH IN
THIS SECTION 5.5 OR ELSEWHERE IN THIS AGREEMENT.
SECTION 5.6 REPRESENTATIONS AND WARRANTIES OF BLACK HAWK, TEA, TOC AND
TOGCO. Each of Black Hawk, TEA, TOC and TOGCO hereby severally and not jointly
represents and warrants, as of the date hereof and as of the Closing Date, as to
itself, to the parties hereto as follows:
(a) ORGANIZATION, CORPORATE POWER AND GOOD STANDING. Each of Black
Hawk, TEA, TOC and TOGCO is a corporation duly organized, validly existing
in good standing under the laws of its state of incorporation. Black Hawk,
TEA, TOC and TOGCO each has the power and authority to carry on its
business as now conducted and to own or lease its properties and other
assets as now owned or leased. Black Hawk, TEA, TOC and TOGCO is each duly
qualified and in good standing in all jurisdictions where the nature of
its assets or business requires such qualification, except where the
failure to be so qualified or in good standing would not have a material
adverse effect on Black Hawk, TEA, TOC or TOGCO, as appropriate.
(b) DUE AUTHORIZATION; VALID, BINDING AND ENFORCEABLE. Black Hawk,
TEA, TOC and TOGCO each has all requisite power and authority to enter
into this Agreement and all agreements contemplated hereby and to
consummate the applicable Transactions and perform its obligations
hereunder and thereunder. The execution, delivery and performance of this
Agreement and all agreements contemplated hereby and the consummation of
the applicable Transactions have been duly authorized by all required
actions of Black Hawk, TEA, TOC and TOGCO. This Agreement has been duly
executed and delivered by Black Hawk, TEA, TOC and TOGCO and constitutes
the legal, valid and binding obligation of Black Hawk, TEA, TOC and TOGCO
enforceable in accordance with its terms, except as limited by bankruptcy,
or other laws applicable generally to creditor's rights and as limited by
general equitable principles.
(c) NO VIOLATION; APPROVALS. Other than the consents and approvals
obtained in Sections 2.7, 2.8 and 6.1 and those relating solely to the Oil
and Gas Properties being transferred hereunder, the execution, delivery
and performance by Black Hawk, TEA, TOC and TOGCO of this Agreement and
the consummation of the applicable Transactions, will not violate any
provision of law or conflict with, or result in any breach of, or
constitute a default under, or result in the creation of a lien, claim or
encumbrance on any of the properties or assets of Black Hawk, TEA, TOC and
TOGCO pursuant to any corporate charter, bylaw or regulation or any
agreement, instrument, judgment or decree to which such entity is a party
or by which it or its properties is or may be bound or affected, or
eliminate or impair any intangible right, concession (including any tax
concession), license or privilege allowed to or enjoyed by such party.
Other than the consents and approvals obtained in Sections 2.7, 2.8 and
6.1 and those relating solely to the Oil and Gas
24
Properties being transferred hereunder, no approval, authorization,
consent, order or other action of, or filing with, any person, firm or
corporation, or any court, administrative agency or other governmental
authority, domestic or foreign, is required in connection with the
execution and delivery by Black Hawk, TEA, TOC and TOGCO of this Agreement
or the consummation by Black Hawk, TEA, TOC and TOGCO of the applicable
Transactions.
(d) NO UNTRUE STATEMENTS. Neither this Agreement or any certificate,
exhibit or other instrument, list or information required to be furnished
by Black Hawk, TEA, TOC or TOGCO pursuant to this Agreement, nor any
statement made by Black Hawk, TEA, TOC or TOGCO in connection with the
Transactions contains, or will contain, any untrue statement of a material
fact or omits, or will omit, to state any material fact necessary in order
to make the statements contained herein or therein, under the
circumstances under which they are or will be made, not misleading.
(e) WARRANTY OF TITLE. Black Hawk, TEA, TOC and TOGCO each warrants
title to the Oil and Gas Properties owned by it as indicated on Schedule A
unto Buyer by, through and under Black Hawk, TEA, TOC and TOGCO,
respectively, but not otherwise.
(f) DISCLAIMERS. THE EXPRESS REPRESENTATIONS AND WARRANTIES OF BLACK
HAWK, TEA, TOC AND TOGCO CONTAINED IN THIS SECTION 5.6 (INCLUDING, WITHOUT
LIMITATION, THE SPECIAL WARRANTY OF TITLE CONTAINED IN SECTION 5.6(e)
ABOVE) ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND BLACK HAWK, TEA,
TOC AND TOGCO EXPRESSLY DISCLAIM ANY AND ALL SUCH OTHER REPRESENTATIONS
AND WARRANTIES. WITHOUT LIMITATION OF THE FOREGOING, THE OIL AND GAS
PROPERTIES SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR
REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR
RELATING TO ANY LIABILITIES, INCLUDING ANY ENVIRONMENTAL LIABILITIES, THE
CONDITION, QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY
TO THE MODELS OR SAMPLES OF MATERIALS OR MERCHANTABILITY OF ANY EQUIPMENT
OR ITS FITNESS FOR ANY PURPOSE, AND, EXCEPT AS PROVIDED OTHERWISE IN THIS
SECTION, WITHOUT ANY OTHER EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY
OR REPRESENTATION WHATSOEVER. BUYER SHALL HAVE INSPECTED, OR WAIVED (AND
UPON CLOSING SHALL BE DEEMED TO HAVE WAIVED) ITS RIGHT TO INSPECT, THE
PROPERTIES FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND
ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE, INCLUDING BUT NOT
LIMITED TO CONDITIONS SPECIFICALLY RELATED TO THE PRESENCE, RELEASE OR
DISPOSAL OF HAZARDOUS SUBSTANCES, SOLID WASTES, ASBESTOS AND OTHER MAN
MADE FIBERS, OR NATURALLY OCCURRING RADIOACTIVE MATERIALS. BUYER IS
RELYING SOLELY UPON ITS OWN INSPECTION OF THE PROPERTIES, AND BUYER SHALL,
EXCEPT AS PROVIDED OTHERWISE HEREIN, ACCEPT ALL OF THE SAME IN THEIR "AS
IS, WHERE IS" CONDITION. ALSO WITHOUT LIMITATION OF THE FOREGOING, AND
EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION, NEITHER BLACK HAWK, TOGCO
NOR TOGCO MAKES ANY WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED,
STATUTORY OR
25
OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS,
RECORDS, PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR
HEREAFTER FURNISHED OR MADE AVAILABLE TO BUYER IN CONNECTION WITH THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION, RELATIVE TO PRICING ASSUMPTIONS,
OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO
THE PROPERTIES OR THE ABILITY OR POTENTIAL OF THE PROPERTIES TO PRODUCE
HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE PROPERTIES OR ANY OTHER
MATTERS CONTAINED IN THE DATA OR ANY OTHER MATERIALS FURNISHED OR MADE
AVAILABLE TO BUYER BY BLACK HAWK, TEA, TOC OR TOGCO OR BY EITHER OF SUCH
PARTY'S AGENTS OR REPRESENTATIVES OR BY ANY OTHER PARTY. ANY AND ALL SUCH
DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION AND OTHER MATERIALS
(WRITTEN OR ORAL) FURNISHED OR OTHERWISE MADE AVAILABLE OR DISCLOSED TO
BUYER ARE PROVIDED TO BUYER AS A CONVENIENCE AND SHALL NOT CREATE OR GIVE
RISE TO ANY LIABILITY OF OR AGAINST BLACK HAWK, TEA, TOC OR TOGCO AND ANY
RELIANCE ON OR USE OF THE SAME SHALL BE AT BUYER'S SOLE RISK TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
SECTION 5.7 REPRESENTATIONS AND WARRANTIES OF TORCH. In order to induce
the Buyer and other Sellers to enter into this Agreement, Torch hereby
represents and warrants, as of the date hereof and as of the Closing Date, to
the parties hereto as follows:
(a) ORGANIZATION, QUALIFICATION AND GOOD STANDING. Torch is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business, as now conducted, and to own or
lease its properties and other assets as now owned or leased. Torch is
duly qualified and in good standing in all jurisdictions where the nature
of its assets or business requires such qualification, except where the
failure to be so qualified or in good standing would not have a material
adverse effect on it.
(b) DUE AUTHORIZATION; VALID, BINDING AND ENFORCEABLE. Torch has all
requisite power and authority to enter into this Agreement and all
agreements contemplated hereby and to consummate the Transactions and
perform its obligations hereunder and thereunder. The execution, delivery
and performance of this Agreement and all agreements contemplated hereby
and the consummation of the Transactions have been duly authorized by all
required actions of Torch. This Agreement has been duly executed and
delivered by Torch and constitutes the legal, valid and binding obligation
of Torch enforceable in accordance with its terms, except as limited by
bankruptcy, or other laws applicable generally to creditor's rights and as
limited by general equitable principles.
(c) NO VIOLATION; APPROVALS. Other than the consents and approvals
obtained in Sections 2.7, 2.8 and 6.1 and those relating solely to the Oil
and Gas Properties being transferred hereunder, the execution, delivery
and performance by Torch of this Agreement and the consummation of the
Transactions will not violate any provision of law or conflict with, or
result in any breach of, or constitute a default under, or result in the
creation of a lien, claim or encumbrance on any of the properties or
assets of Torch pursuant to any corporate charter, bylaw or regulation or
any agreement, instrument, judgment or decree to which Torch is a party or
by which it or its properties is or may be bound or affected, or eliminate
or impair any
26
intangible right, concession (including any tax concession), license or
privilege allowed to or enjoyed by such party. Other than the consents and
approvals obtained in Sections 2.7, 2.8 and 6.1 and those relating solely
to the Oil and Gas Properties being transferred hereunder, no approval,
authorization, consent, order or other action of, or filing with, any
person, firm or corporation, or any court, administrative agency or other
governmental authority, domestic or foreign, is required in connection
with the execution and delivery by Torch of this Agreement or the
consummation by Torch of the Transactions.
(d) NO UNTRUE STATEMENTS. All of the information furnished by Torch
to Buyer, Bellwether and Sellers in connection with the Transactions is
true, complete and accurate in all material respects and does not contain
any untrue statement of any material fact and does not omit to state any
material fact necessary to make the statements contained therein, in light
of the circumstances under which they were made, not false or misleading.
(e) REGISTRATION STATEMENT. Torch represents and warrants to the
Institutional Sellers only that pages 12, 13, 57 and 58 from the Common
Stock Prospectus attached hereto as Exhibit D and constituting a part of
the Registration Statement describe, in all material respects, the
payments and all other direct and indirect consideration to be made or
paid to Torch and its affiliates by Buyer, Bellwether and Bellwether's
affiliates in connection with the Transactions.
(f) OTHER DISCLOSURES. The June 30 Report was prepared by Torch and
the January 1 Reports were prepared by the Reserve Engineers in each case
in accordance with accepted oil and gas reserve engineering practices,
using reasonable assumptions. All information regarding historical facts
contained in the Reserve Reports or otherwise furnished by Torch to the
Institutional Sellers in connection with the properties covered thereby
(or furnished to Xxxxx Xxxxx Company Petroleum Engineers in connection
with their audit of the June 30 Report, to the Reserve Engineers in
connection with their preparation of the January 1 Reports, or to Sellers'
Financial Advisor) is accurate and complete in all material respects in
accordance with industry standards.
(g) BLACK HAWK AND TOGCO STOCK. The authorized capitalization of
Black Hawk consists of 5,000,000 shares of common stock, $.10 par value,
and 1,000,000 shares of preferred stock, $1.00 par value, of which 814,000
shares of common stock are currently outstanding ("Black Hawk Stock") and
the authorized capitalization of TOGCO consists of 1,000 shares of common
stock, $.01 par value, of which 1,000 shares of common stock are currently
outstanding ("TOGCO Stock"). The Black Hawk Stock and TOGCO Stock are
owned by Torch, free and clear of all Claims. Torch has full power and
authority to sell the Black Hawk Stock and TOGCO Stock to Buyer as
contemplated by this Agreement, and at the closing will deliver to Buyer
good and marketable title to the Black Hawk Stock and TOGCO Stock, free
and clear of all Claims.
(h) DISCLAIMERS. THE EXPRESS REPRESENTATIONS AND WARRANTIES TORCH
CONTAINED IN THIS SECTION 5.7 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
AND TORCH EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER REPRESENTATIONS AND
WARRANTIES. WITHOUT LIMITATION OF THE FOREGOING, THE OIL AND GAS
PROPERTIES SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR
REPRESENTATION
27
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR RELATING TO ANY
LIABILITIES, INCLUDING ANY ENVIRONMENTAL LIABILITIES, THE CONDITION,
QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO THE
MODELS OR SAMPLES OF MATERIALS OR MERCHANTABILITY OF ANY EQUIPMENT OR ITS
FITNESS FOR ANY PURPOSE, AND, EXCEPT AS PROVIDED OTHERWISE IN THIS
SECTION, WITHOUT ANY OTHER EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY
OR REPRESENTATION WHATSOEVER. BUYER SHALL HAVE INSPECTED, OR WAIVED (AND
UPON CLOSING SHALL BE DEEMED TO HAVE WAIVED) ITS RIGHT TO INSPECT, THE OIL
AND GAS PROPERTIES FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR
PHYSICAL AND ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE,
INCLUDING BUT NOT LIMITED TO CONDITIONS SPECIFICALLY RELATED TO THE
PRESENCE, RELEASE OR DISPOSAL OF HAZARDOUS SUBSTANCES, SOLID WASTES,
ASBESTOS AND OTHER MAN MADE FIBERS, OR NATURALLY OCCURRING RADIOACTIVE
MATERIALS. BUYER IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE OIL AND
GAS PROPERTIES, AND BUYER SHALL, EXCEPT AS PROVIDED OTHERWISE HEREIN,
ACCEPT ALL OF THE SAME IN THEIR "AS IS, WHERE IS" CONDITION. ALSO WITHOUT
LIMITATION OF THE FOREGOING, AND EXCEPT AS PROVIDED OTHERWISE IN THIS
SECTION, TORCH MAKES NO WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY DATA,
REPORTS, RECORDS, PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR
HEREAFTER FURNISHED OR MADE AVAILABLE TO BUYER IN CONNECTION WITH THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION, RELATIVE TO PRICING ASSUMPTIONS,
OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO
THE OIL AND GAS PROPERTIES OR THE ABILITY OR POTENTIAL OF THE OIL AND GAS
PROPERTIES TO PRODUCE HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE
OIL AND GAS PROPERTIES OR ANY OTHER MATTERS CONTAINED IN THE DATA OR ANY
OTHER MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER BY TORCH OR BY ANY OF
SUCH PARTY'S AGENTS OR REPRESENTATIVES OR BY ANY OTHER PARTY. ANY AND ALL
SUCH DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION AND OTHER MATERIALS
(WRITTEN OR ORAL) FURNISHED OR OTHERWISE MADE AVAILABLE OR DISCLOSED TO
BUYER ARE PROVIDED TO BUYER AS A CONVENIENCE AND SHALL NOT CREATE OR GIVE
RISE TO ANY LIABILITY OF OR AGAINST TORCH FOR RELIANCE ON OR USE OF THE
SAME SHALL BE AT BUYER'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW.
ARTICLE VI. COVENANTS AND AGREEMENTS
SECTION 6.1 CONSENT. Each of the General Partners and the Limited Partners
by their execution hereof, immediately prior to the Effective Time, hereby
irrevocably (a) votes for, consents to, adopts and approves the form, terms and
provisions of this Agreement and the consummation of each of the Transactions,
including, without limitation, the Merger and the sale by TEA and TOC of the
working interests from which any net profits interest is created, upon the terms
and conditions set forth herein and (b) amends the respective Partnership
Agreements to the extent required under Section 2.11 of the TRLPA and any other
applicable provisions of the TRLPA and the DGCL to effect the Transactions
contemplated hereby. Each Type 5 Investor, Type 3 Noteholder, Type 4
28
Noteholder, Black Hawk, TOC and Torch by their execution hereof, immediately
prior to the Effective Time, amends the agreements among them relating to the
assets being conveyed to Bellwether or Buyer to the extent required to effect
each Transaction applicable to such party.
SECTION 6.2 CONDUCT OF BUSINESS. Each Partnership, Black Hawk and TOGCO
agree, as applicable, that prior to the Effective Time, and except as otherwise
contemplated herein or consented to in writing by the other parties hereto, each
shall (a) not pay or declare dividends or other distribu tions payable in
partnership interests or other equity securities, split, combine or otherwise
reclassify their respective capital stock or partnership interests or directly
or indirectly repurchase or otherwise acquire shares of their capital stock; (b)
not issue any capital stock, partnership interests or debt securities having
voting rights for directors or general partners or any rights, options
securities convertible or exchangeable therefor, and (c) not to amend their
respective certificates of incorporation, bylaws, partnership agreements or
other governing documents.
SECTION 6.3 PREFERENTIAL RIGHTS. Torch, the Partnerships, Black Hawk, TEA,
TOC and TOGCO will use their respective reasonable efforts, consistent with
industry practices in transactions of this type, to identify, with respect to
all Material Oil and Gas Properties, (i) all preferential rights to purchase and
consents to assign ("Preferential Rights") which would be applicable to the
transactions contemplated hereby and (ii) the names and addresses of parties
holding such rights; in attempting to identify such Preferential Rights, and the
names and addresses of such parties holding the same, such persons, however,
shall in no event be obligated to go beyond their own records. Torch will
request, from the parties so identified (and in accordance with the documents
creating such rights), execution of waivers of the Preferential Rights so
identified. Torch shall have no obligation other than to so attempt to identify
such Preferential Rights and to so request such execution of waivers of
Preferential Rights (including, without limitation, Torch shall have no
obligation to assure that waivers of Preferential Rights are obtained). No
Institutional Seller shall have any obligation to take any action regarding
Preferential Rights. Except to the extent that Buyer can establish that Torch
failed to fulfill the obligations set forth above in this Section 6.3 (in which
case Buyer shall not indemnify Torch but shall continue to indemnify the
Institutional Sellers), Buyer shall indemnify and hold Sellers (and their
respective affiliates and the respective officers, directors, trustees,
fiduciaries, participants, beneficiaries, employees, attorneys, contractors and
agents of Sellers and such affiliates) harmless from and against all claims,
actions, causes of action, liabilities, damages, losses, costs or expenses
(including, without limitation, court costs and attorney's fees) whatsoever that
arise out of the failure to obtain waivers of Preferential Rights, or consents
to assignment, with respect to any transfer by Sellers to Buyer of any part of
the Properties and with respect to any subsequent transfers WHETHER OR NOT SUCH
CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR
EXPENSES ARISE OUT OF NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SINGLE NEGLIGENCE,
CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING
GROSS NEGLIGENCE) OF ANY INDEMNIFIED PARTY.
SECTION 6.4 FILINGS; CONSENTS. Subject to the terms of this Agreement,
Buyer, the Partnerships, Black Hawk, TEA, TOC and TOGCO shall (i) make any
necessary filings with respect to the Transactions and shall use all reasonable
efforts to obtain approvals and clearances with respect thereto; (ii) obtain all
consents, waivers, approvals and authorizations required in connection with the
Transactions under the terms of any oil and gas lien; (iii) take, or cause to be
taken, all appropriate action, and do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
29
practical the Transactions. The Type 5 Investors shall make any necessary
filings identified and properly prepared by Buyer, Black Hawk and TOGCO.
SECTION 6.5 NO OTHER AGREEMENTS. Torch, Bellwether and Buyer each
covenants and agrees with each Seller that neither Torch, Bellwether nor Buyer
nor any of their affiliates will negotiate or make any agreement with any Seller
or other participant in an Institutional Program including IBM Retirement Plan
Trust and its title-holding subsidiary, Xxxxx Xxxx Corporation (collectively,
"IBM"), relating to the Transactions and/or the Institutional Programs except as
provided in the written terms of this Agreement; PROVIDED, HOWEVER, that (a)
Bellwether and Buyer may make the additional agreements and arrangements with
Torch and Torchmark and their respective affiliates which are described in
Exhibit D hereto; (b) Torch or its subsidiary may sell the interests owned by it
from which IBM's or such other participant's net profits interests are carved
(I.E., the working interest in each applicable lease equal to ten ninths
(10/9ths) of IBM's net profits interest in such lease); and (c) IBM may enter
into the Settlement Agreement with the other parties thereto.
SECTION 6.6 REASONABLE EFFORTS Torch, as general partner or sponsor of the
Institutional Programs, covenants and agrees with Bellwether and each of the
Sellers to use its reasonable efforts to cause each of the conditions to the
consummation of the Transactions specified in Article VII hereof which are
within Torch's control to be effected as contemplated by this Agreement.
Further, Torch agrees to cause each of its subsidiaries to comply fully with the
terms of this Agreement and to use their respective reasonable efforts to cause
each of the conditions to the consummation of the Transactions specified in
Article VII hereof which are within such subsidiary's reasonable control to be
effected as contemplated by this Agreement.
SECTION 6.7 SEC MATTERS. Following the execution of this Agreement, each
of the Partnerships, Torch, TEA and TOC will provide (at Bellwether's sole cost
and expense) Bellwether and its authorized officers, directors, representatives,
accountants and attorneys, with reasonable access to all information within
their respective control necessary to comply with the reporting requirements
under the Securities Act and the Exchange Act; PROVIDED, HOWEVER, that such
access shall be subject to Section 5.1(g) and none of the Institutional Sellers
shall have any duties, responsibilities or obligations with respect to such
information or Registration Statement.
SECTION 6.8 AFE'S. Following the execution of this Agreement, Bellwether
shall have the right to direct Torch to consent or non-consent to all
Authorizations for Expenditures ("AFE's") submitted to the Institutional
Programs at any time prior to the Closing if Bellwether reasonably believes that
the deadline for responding to any AFE is likely to pass prior to the Closing;
PROVIDED, HOWEVER, that such consent or non-consent does not violate any of the
provisions of the constituent documents governing the Institutional Programs.
SECTION 6.9 TORCHMARK PAYMENTS. As partial consideration for the execution
and delivery to each Seller of a Settlement Agreement, Torch shall pay to
Torchmark the sum of $500,000 in cash and Buyer shall pay to Torchmark the sum
of $1,500,000 in cash. Further, Torch agrees to execute and deliver to each
Seller a Settlement Agreement and Torch, Buyer and Bellwether agree to use their
respective reasonable efforts to cause Torchmark to execute and deliver to such
Seller a Settlement Agreement.
SECTION 6.10 RIGHT OF INSPECTION. Without limiting any Seller's rights to
inspect and copy books and records relating to the Transaction, each Seller and
each Seller's authorized representatives shall have the right to inspect and
verify the calculation of the
30
Exchange Value and the determination of the Contingent Payment and the payment
of all Interim Distributions, and to receive from Torch upon request reasonably
detailed recapitulations thereof.
ARTICLE VII. CONDITIONS TO CLOSING; TERMINATION
SECTION 7.1 CLOSING. The Transactions shall be effective as of the
Effective Time. The closing of the Transactions (the "Closing") shall take place
at the offices of Xxxxxx & Xxxxxx, L.L.P., 0000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000 (or such other time or place as the parties hereto shall mutually
agree), on April 8, 1997, or such other later date selected by Bellwether not
later than April 30, 1997 (the "Closing Date"), provided that the conditions set
forth in this Article VII shall have been fulfilled or waived in accordance with
this Agreement.
SECTION 7.2 ACTIONS AND DELIVERIES AT CLOSING. At the Closing, Buyer and
the Sellers shall simultaneously take the following actions and make the
following deliveries:
(a) INSTRUMENTS OF TRANSFER. Torch, TOC, TEA, and the Type 5
Investors shall execute, acknowledge and deliver to Buyer such instruments
of sale, conveyance, transfer and assignment and stock powers as Buyer
reasonably deems necessary, and is reasonably satisfactory to each such
Seller, to transfer all of their right, title and interest in and to the
Transaction Assets in each case effective, as to runs of oil and
deliveries of gas, and for all other purposes, as of 7 o'clock a.m., local
time at the locations of the Oil and Gas Properties, respectively, on the
Effective Date.
(b) FEDERAL AND STATE CONVEYANCE FORMS. Torch, TEA, TOC, the Type 5
Investors and the Partnerships shall, where appropriate, prepare, execute
(and, where required, acknowledge) and deliver to Buyer forms of
conveyance or assignment as required by the applicable authorities for
transfers of interests in state or federal leases, if any, included in the
Properties; PROVIDED, HOWEVER, that no Type 5 Investor shall have any
obligation to prepare any such conveyance or assignment or any
responsibility or obligation with respect to the accuracy of such
conveyance or assignment.
(c) LETTERS IN LIEU. Torch, TEA, TOC, the Type 5 Investors and the
Partnerships shall, if requested by Buyer, prepare, execute and deliver to
Buyer letters in lieu of transfer orders (or similar documentation) in
form acceptable to Sellers and Buyer; PROVIDED, HOWEVER, that no Type 5
Investor shall have any obligation to prepare any such letters in lieu or
any responsibility or obligation with respect to the accuracy of such
letters in lieu.
(d) DELIVERY OF NOTES. The Type 3 Noteholder and the Type 4
Noteholder shall deliver the originally executed Type 3 Note and the Type
4 Notes, respectively, to Buyer duly endorsed for transfer to Buyer along
with releases of the mortgages related thereto; provided, however, that no
such Noteholder shall have any obligation to prepare any such lease or any
responsibility or obligation with respect to the accuracy of such
releases.
(e) CERTIFICATES OF MERGER; ASSIGNMENT DOCUMENTS. Each of the
Partnerships other than 1988-II Limited Partnership, 1989-I Limited
Partnership, TEAI VIII-A and TEAI VIII-B shall deliver the Certificates of
Merger to Buyer duly executed by their respective general partner. Torch
will deliver certificates duly endorsed for transfer to Buyer representing
all of the Black Hawk Stock and
31
TOGCO Stock and will deliver to Black Hawk a xxxx of sale and assignment
transferring all right, title and interest in and to the General Partner
interest in 1988-II Limited Partnership, 1989- I Limited Partnership, TEAI
VIII-A and TEAI VIII-B. Each Limited Partner of 1988-II Limited
Partnership, 1989-I Limited Partnership, TEAI VIII-A and TEAI VIII-B will
deliver a xxxx of sale and assignment to Bellwether transferring all
right, title and interest in and to the Limited Partner interests in
1988-II Limited Partnership, 1989-I Limited Partnership, TEAI VIII-A
and/or TEAI VIII-B owned by such Limited Partner.
(f) PAYMENT OF EXCHANGE VALUE. Buyer shall deliver to each of the
Sellers participating in the Transactions, by wire transfer of immediately
available funds, the amount of the Exchange Value to which such Seller is
entitled hereunder.
(g) ESCROW DEPOSIT. Buyer shall deposit the Closing Escrow Deposit
in the Escrow Account pursuant to an Escrow Agreement in the form attached
as Exhibit E.
(h) NON-FOREIGN STATUS AFFIDAVIT. If Buyer so requests, each Seller
will, to the extent that it is able, execute and deliver to Buyer an
affidavit or other acceptable certification that such Seller is not a
"foreign person" within the meaning of the Internal Revenue Code of 1986,
as amended (e.g., such Seller is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate as such
terms are defined in such code and the regulations promulgated
thereunder).
(i) TERMINATION OF ACQUISITION AGREEMENTS, CREDIT AGREEMENTS. Torch
and the Type 5 Investors shall execute agreements, in form and substance
satisfactory to Torch and the Type 5 Investors, terminating the Type 5
Agreements. The appropriate parties will execute agreements terminating
the Type 4 Credit Agreements and Type 3 Credit Agreement.
(j) SETTLEMENT AGREEMENTS. Each signatory to the Settlement
Agreement shall execute and deliver a counterpart thereof.
(l) OTHER DOCUMENTS. The parties to this Agreement and their
affiliates shall execute and deliver all other instruments and documents
as are required or contemplated in this Agreement and/or are reasonably
necessary to consummate the Transactions.
SECTION 7.3 CLOSING CONDITIONS TO ALL TRANSACTIONS. (a) The obligations of
Buyer and Bellwether to consummate the Transactions are subject to the
fulfillment of each of the following conditions, any or all of which may be
waived in whole or in part by Bellwether, to the extent permitted by applicable
law:
(i) GOVERNMENTAL AND REGULATORY CONSENTS; NO INJUNCTION. No order,
stay, injunction or decree of any court of competent jurisdiction shall
have been issued that prevents or materially delays the consummation of
the Transactions and no proceedings shall be threatened to such effect.
(ii) SIMULTANEOUS CLOSING. A sufficient number of Transactions shall
close simultaneously such that the pre-tax present value, discounted at
10%, of future net cash flows of the oil and gas reserves attributable to
the Oil and Gas Properties which are transferred to Buyer in the
Transactions, as of July 1, 1996,
32
equal at least 95% of the pre-tax present value, discounted at 10%, of
future net cash flows of oil and gas reserves attributable to all of the
Oil and Gas Properties (such present value shall be based on the reserve
reports as of June 30, 1996 set forth in Bellwether's Registration
Statement which excludes any interests owned by IBM).
(iii) SETTLEMENT AGREEMENT. The Settlement Agreement shall have been
executed and delivered by each of the parties thereto and Torchmark shall
have paid all amounts required to be paid by Torchmark thereunder.
(b) The obligations of the Sellers to consummate the Transactions are
subject to the fulfillment of each of the following conditions, any or all of
which may be waived in whole or in part by a Seller as to itself, to the extent
permitted by applicable law:
(i) GOVERNMENTAL AND REGULATORY CONSENTS; NO INJUNCTION. No order,
stay, injunction or decree of any court of competent jurisdiction shall
have been issued that prevents or materially delays the consummation of
the Transactions and no proceedings shall be threatened to such effect.
(ii) TYPE 5 CONSENTS. Any determination, directive or other action
required from a Qualified Professional Asset Manager for a Type 5 Investor
necessary, as determined by such Type 5 Investor, to comply with
applicable law shall have been received.
(iii) FAIRNESS OPINION. The Institutional Sellers shall have
received a fairness opinion from Sellers' Financial Advisor, special
advisers to the Institutional Sellers, in form and substance satisfactory
to the Institutional Sellers, to the effect that the Transactions are fair
to the Institutional Sellers from a financial perspective.
(iv) SETTLEMENT AGREEMENT. The Settlement Agreement shall have been
executed and delivered by each of the parties thereto and Torchmark shall
have paid all amounts required to be paid by Torchmark thereunder.
(v) LEGAL OPINION. Xxxxxx & Xxxxxx, L.L.P shall have delivered to
each of the Seller's its opinion regarding the matters set forth in
paragraphs (a), (b), (c) and (i) of Section 5.1 hereof and regarding the
effectiveness of the Merger upon the filing of the Certificates of Merger.
SECTION 7.4 CONDITIONS TO MERGER.
(a) The obligations of each of the Partnerships and their respective
Partners to proceed with the Merger shall be subject to the satisfaction,
at or prior to the Closing, of each of the following conditions, each of
which may be waived by the Partnerships, as to itself, except as otherwise
provided by law:
(i) REPRESENTATIONS AND WARRANTIES, AGREEMENTS AND COVENANTS.
All representations and warranties of Buyer and Bellwether contained
in this Agreement or in any schedule or document delivered pursuant
to the provisions of this Agreement shall be true and correct in all
material respects as of the Closing Date, except for representations
or warranties made as of a specific date, which shall be true and
correct as of such date. Each of the agreements, covenants and
obligations of Buyer and Bellwether required by this Agreement to be
performed by them at or prior
33
to the Closing shall have been duly performed and complied with as
of the Closing. Each of the deliveries required to be made by Buyer
and Bellwether at the Closing shall have been made by Buyer and
Bellwether, respectively.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or decree of
any court of competent jurisdiction shall have been issued that prevents
or materially delays the consummation of the Merger with such Partnership
and no proceedings shall be threatened to such effect.
(b) The obligation of Bellwether and Buyer to proceed with the
Merger with any Partnership shall be subject to the satisfaction, at or
prior to the Closing, of each of the following conditions with respect to
such Partnership, each of which may be waived by Bellwether or Buyer
except as otherwise provided by law:
(i) REPRESENTATIONS AND WARRANTIES, AGREEMENTS AND COVENANTS.
All representations and warranties of such Partnership and their
General Partner and Limited Partners contained in this Agreement or
in any schedule or document delivered pursuant to the provisions of
this Agreement shall be true and correct in all material respects as
of the Closing Date, except for representations and warranties made
as of a specific date, which shall be true and correct as of such
date. Each of the agreements, covenants and obligations of such
Partnership and its General Partner and Limited Partners required by
this Agreement to be performed by them at or prior to the Closing
shall have been duly performed and complied with as of the Closing.
Each of the deliveries required to be made by such Partnership and
its General Partner and Limited Partners at the Closing shall have
been made by the Partnerships and its General Partner and Limited
Partners.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or
decree of any court of competent jurisdiction shall have been issued
that prevents or materially delays the consummation of the Merger
with such Partnership and no proceedings shall be threatened to such
effect.
(iii) CONSENTS. To the extent any person or persons shall
refuse to give a required consent or consents to the transfer to
Buyer of Material Oil and Gas Properties, the parties hereto shall
have reached a mutual agreement on a method of dealing with such
non-consent.
(iv) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
any Material Adverse Change.
SECTION 7.5 CONDITIONS TO THE NOTE TRANSFERS.
(a) The obligations of the Type 3 Noteholder and the Type 4
Noteholder to proceed with the Note Transfers at the Closing shall be
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions, each of which may be waived by the Type 3 Noteholder
or the Type 4 Noteholder, as to itself, except as otherwise provided by
law:
(i) REPRESENTATIONS AND WARRANTIES, AGREEMENTS AND COVENANTS.
All representations and warranties of Bellwether and Buyer contained
in this Agreement or in any schedule or document delivered pursuant
to the provisions of this Agreement shall be true and correct in all
34
material respects as of the Closing Date, except for representations
or warranties made as of a specific date, which shall be true and
correct as of such date. Each of the agreements, covenants and
obligations of Bellwether and Buyer required by this Agreement to be
performed by them at or prior to the Closing shall have been duly
performed and complied with as of the Closing. Each of the
deliveries required to be made by Bellwether and Buyer at the
Closing shall have been made by Bellwether and Buyer.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or
decree of any court of competent jurisdiction shall have been issued
that prevents or materially delays the consummation of the Note
Transfer by such Noteholder and no proceedings shall be threatened
to such effect.
(b) The obligation of Bellwether and Buyer to proceed with each of
the Note Transfers at the Closing shall be subject to the satisfaction, at
or prior to the Closing, of each of the following conditions, each of
which may be waived by Bellwether and Buyer as to any or all Note
Transfers, except as otherwise provided by law:
(i) REPRESENTATIONS AND WARRANTIES; AGREEMENTS AND COVENANTS.
All representations and warranties of the Type 3 Noteholder and the
Type 4 Noteholder contained in this Agreement or in any schedule or
document delivered pursuant to the provisions of this Agreement
shall be true and correct in all material respects as of the Closing
Date, except for representations and warranties made as of a
specific date, which shall be true and correct as of such date. Each
of the agreements, covenants and obligations of the Type 3
Noteholder and the Type 4 Noteholder required by this Agreement to
be performed by them at or prior to the Closing shall have been duly
performed and complied with as of the Closing. Each of the
deliveries required to be made by the Type 3 Noteholder and the Type
4 Noteholder at the Closing shall have been made by the Type 3
Noteholder and the Type 4 Noteholder, respectively.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or
decree of any court of competent jurisdiction shall have been issued
that prevents or materially delays the consummation of the Note
Transfers and no proceedings shall be threatened to such effect.
(iii) NO MATERIAL ADVERSE CHANGE. There shall not have
occurred any Material Adverse Change.
SECTION 7.6 CONDITIONS TO THE TYPE 5 TRANSFERS.
(a) The obligations of each Type 5 Investor to proceed with the Type
5 Transfers at the Closing shall be subject to the satisfaction, at or
prior to the Closing, of each of the following conditions, each of which
may be waived by the Type 5 Investors, as to itself, except as otherwise
provided by law:
(i) REPRESENTATIONS AND WARRANTIES, AGREEMENTS AND COVENANTS.
All representations and warranties of Bellwether and Buyer contained
in this Agreement or in any schedule or document delivered pursuant
to the provisions of this Agreement shall be true and correct in all
material respects as of the Closing Date, except for representations
or warranties made as of a specific date, which shall be true and
correct as of such date. Each of the agreements, covenants and
obligations of Bellwether and Buyer required by this Agreement to be
performed by them at or prior to the Closing shall have been duly
performed and complied with as of the Closing. Each of the
deliveries required to be made by Bellwether and Buyer at the
Closing shall have been made by Bellwether and Buyer.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or
decree of any court of competent jurisdiction shall have been issued
that prevents or materially delays any of the Type 5 Transfers and
no proceedings shall be threatened to such effect.
(b) The obligation of Bellwether and Buyer to proceed with a Type 5
Transfer at the Closing shall be subject to the satisfaction, at or prior
to the Closing, of each of the following conditions with respect to the
applicable Type 5 Investor, each of which may be waived by Bellwether and
Buyer, except as otherwise provided by law:
(i) REPRESENTATIONS AND WARRANTIES; AGREEMENTS AND COVENANTS.
All representations and warranties of the Type 5 Investors contained
in this Agreement or in any schedule or document delivered pursuant
to the provisions of this Agreement shall be true and correct in all
material respects as of the Closing Date, except for representations
35
and warranties made as of a specific date, which shall be true and
correct as of such date. Each of the agreements, covenants and
obligations of the Type 5 Investors required by this Agreement to be
performed by them at or prior to the Closing shall have been duly
performed and complied with as of the Closing. Each of the
deliveries required to be made by the Type 5 Investors at the
Closing shall have been made by the Type 5 Investors.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or
decree of any court of competent jurisdiction shall have been issued
that prevents or materially delays any of the Type 5 Transfers and
no proceedings shall be threatened to such effect.
(iii) CONSENTS. To the extent any person or persons shall
refuse to give a required consent or consents to the transfer to
Buyer of Material Oil and Gas Properties, the parties hereto shall
have reached a mutual agreement on a method of dealing with such
non-consent.
(iv) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
any Material Adverse Change.
SECTION 7.7 CONDITIONS TO BLACK HAWK TRANSFER, TEA TRANSFER, TOC TRANSFER
AND TOGCO TRANSFER.
(a) The obligation of Torch, TEA and TOC to proceed with the Black
Hawk Transfer, TEA Transfer, TOC Transfer or the TOGCO Transfer (as the
case may be) at the Closing shall be subject to the satisfaction, at or
prior to the Closing, of each of the following conditions, each of which
may be waived by Torch, TEA or TOC as to itself except as otherwise
provided by law:
36
(i) REPRESENTATIONS AND WARRANTIES, AGREEMENTS AND COVENANTS.
All representations and warranties of Bellwether and Buyer contained
in this Agreement or in any schedule or document delivered pursuant
to the provisions of this Agreement shall be true and correct in all
material respects as of the Closing Date, except for representations
or warranties made as of a specific date, which shall be true and
correct as of such date. Each of the agreements, covenants and
obligations of Bellwether and Buyer required by this Agreement to be
performed by them at or prior to the Closing shall have been duly
performed and complied with as of the Closing. Each of the
deliveries required to be made by Bellwether and Buyer at the
Closing shall have been made by Bellwether and Buyer.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or
decree of any court of competent jurisdiction shall have been issued
that prevents or materially delays the consummation of the Black
Hawk Transfer, TEA Transfer, TOC Transfer or the TOGCO Transfer and
no proceedings shall be threatened to such effect.
(b) The obligation of Bellwether and Buyer to proceed with the Black
Hawk Transfer, TEA Transfer, TOC Transfer and the TOGCO Transfer at the
Closing shall be subject to the satisfaction, at or prior to the Closing,
of each of the following conditions, each of which may be waived by
Bellwether and Buyer except as otherwise provided by law:
(i) REPRESENTATIONS AND WARRANTIES; AGREEMENTS AND COVENANTS.
All representations and warranties of each of Torch, Black Hawk,
TEA, TOC and TOGCO contained in this Agreement or in any schedule or
document delivered pursuant to the provisions of this Agreement
shall be true and correct in all material respects as of the Closing
Date, except for representations and warranties made as of a
specific date, which shall be true and correct as of such date. Each
of the agreements, covenants and obligations of Torch, Black Hawk,
TEA, TOC and TOGCO required by this Agreement to be performed by
them at or prior to the Closing shall have been duly performed and
complied with as of the Closing. Each of the deliveries required to
be made by Torch, Black Hawk, TEA, TOC and TOGCO at the Closing
shall have been made by Torch, Black Hawk, TEA, TOC and TOGCO,
respectively.
(ii) ABSENCE OF INJUNCTION. No order, stay, injunction or
decree of any court of competent jurisdiction shall have been issued
that prevents, enjoins or materially delays the consummation of the
Black Hawk Transfer, the TEA Transfer, the TOC Transfer or the TOGCO
Transfer and no proceedings shall be threatened to such effect.
(iii) CONSENTS. To the extent any person or persons shall
refuse to give a required consent or consents to the transfer to
Buyer of Material Oil and Gas Properties, the parties hereto shall
have reached a mutual agreement on a method of dealing with such
non-consent.
(iv) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
any Material Adverse Change.
37
SECTION 7.8 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time, regardless of whether approved by the Institutional
Sellers, as among the parties hereto:
(i) by mutual consent of all of the parties hereto;
(ii) by any of the parties hereto, as to itself, if the
Closing shall not have taken place prior to April 30, 1997;
(iii) by any of the parties hereto, as to itself, if any court
of competent jurisdiction shall have issued an order, stay,
injunction or decree preventing the Transactions contemplated by
this Agreement;
(iv) by Bellwether or Buyer as to any Seller if there has been
a material violation or material breach by such Seller of any
representation, warranty, covenant or obligation contained in this
Agreement, and such violation or breach has not been waived by
Bellwether or Buyer or cured within ten (10) days after notice
thereof in writing delivered to the party in breach or violation;
and
(v) by a Seller, as to itself, if there has been a material
violation or material breach by Bellwether or Buyer of any
representation, warranty, covenant or obligation contained in this
Agreement, and such violation or breach has not been waived by such
Seller or cured within ten (10) days after notice thereof in writing
delivered to the party in breach or violation.
If any party hereto shall terminate this Agreement pursuant to the provisions
hereof, such termination shall be effected by written notice to the other
parties specifying the provision hereof pursuant to which such termination is
made. Termination by a Seller or by Bellwether or Buyer with respect to a
specific Seller shall terminate this Agreement as to such Seller and Bellwether
and Buyer and shall not affect the rights and obligations of the other Sellers;
provided, however, that in the event that any Seller shall terminate this
Agreement pursuant to Section 7.8(v), such Seller shall have the right to
receive its proportionate share of the Signing Escrow Account.
SECTION 7.9 WAIVERS OF CONDITIONS. Notwithstanding anything to the
contrary contained in this Article VII or elsewhere in this Agreement, neither
Torch, Buyer nor Bellwether shall waive any condition with respect to any
Transaction unless Torch, Buyer and Bellwether shall waive such condition (or
any similar condition) with respect to all other Transactions to which such
condition (or any similar condition) applies. Further, Torch, Buyer and
Bellwether shall not otherwise allow any Transaction to be consummated unless
all other Transactions are concurrently consummated except for any Transaction
where the satisfaction of any condition to such consummation is beyond the
reasonable control of Buyer, Bellwether and Torch and their respective
subsidiaries; provided, however, that this sentence shall not require Buyer,
Bellwether or Torch to waive any condition except to the extent required by the
first sentence of this Section 7.9.
ARTICLE VIII. ASSUMPTION AND INDEMNIFICATION
SECTION 8.1 INDEMNITY BY BELLWETHER AND BUYER. Bellwether and Buyer shall,
on the Closing Date, agree (and, at the Effective Time, shall be deemed to have
agreed), (a) to assume, and to timely pay and perform, all duties, obligations
and liabilities relating to the documents creating the Institutional Programs,
the ownership and/or operation of the Properties before and after the Effective
Date (including, without limitation, those arising under the contracts and
agreements described in paragraph (c) of the definition of
38
Property), (b) to assume, and to timely pay and perform, all duties, obligations
and liabilities of each of Black Hawk, TEA and TOGCO as the respective grantors
of the net profits interests that constitute the Properties, including, without
limitation, the obligations of Black Hawk, TEA and TOGCO to indemnify the
grantees of such net profits interests pursuant to Section 4.1 of each
conveyance set forth on Schedule B, and (c) to indemnify and hold Sellers, and
their respective affiliates (and the respective present and former directors,
officers, trustees, fiduciaries, employees, attorneys, contractors and agents of
Sellers and such affiliates) harmless from and against any and all claims,
actions, causes of action, liabilities, damages, losses, costs or expenses
(including, without limitation, court costs and attorneys' fees) of any kind or
character arising, directly or indirectly, out of or otherwise relating to the
ownership and/or operation of the Properties by the Partnerships before and
after the Effective Date. In connection with (but not in limitation of) the
foregoing, it is specifically understood and agreed that such duties,
obligations and liabilities arising out or otherwise relating to the ownership
and/or operation of the Properties before and after the Effective Date shall be
deemed to include all existing or threatened litigation and matters arising out
of the condition of the Properties on the Effective Date (including, without
limitation, within such matters all obligations to properly plug and abandon, or
replug and re-abandon, xxxxx located on the Properties, to restore the
Properties and to comply with, or to bring the Properties into compliance with,
applicable environmental laws, rules, regulations and orders, including
conducting any remediation activities which may be required on or otherwise in
connection with activities on the Properties), regardless of whether such
condition or the events giving rise to such condition arose or occurred before
or after the Effective Date, and the assumptions and indemnifications by Buyer
provided for in the first sentence of this section shall expressly cover and
include such matters. THE FOREGOING ASSUMPTIONS AND INDEMNIFICATIONS SHALL APPLY
WHETHER OR NOT SUCH DUTIES, OBLIGATIONS OR LIABILITIES, OR SUCH CLAIMS, ACTIONS,
CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES, ARISE OUT OF
(i) NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SINGLE NEGLIGENCE, CONCURRENT
NEGLIGENCE, ACTIVE, PASSIVE NEGLIGENCE OR GROSS NEGLIGENCE) OF ANY INDEMNIFIED
PARTY, OR (ii) STRICT LIABILITY.
SECTION 8.2 INDEMNIFICATION BY TORCH. Torch shall (a) assume, and timely
pay and perform, all duties, obligations and liabilities relating to the
ownership and/or operation of the Excluded Black Hawk Assets and Excluded TOGCO
Assets before and after the Effective Date (including, without limitation, those
arising under the contracts and agreements described in paragraph (c) of the
definition of Property), (b) assume, and to timely pay and perform, all duties,
obligations and liabilities of Black Hawk and TOGCO related to the Excluded
Black Hawk Assets or Excluded TOGCO Assets, as the case may be, and (c)
indemnify and hold Bellwether, Buyer, Black Hawk and TOGCO, and their respective
affiliates (and the respective present and former directors, officers, trustees,
fiduciaries, employees, attorneys, contractors and agents of Sellers and such
affiliates) harmless from and against any and all claims, actions, causes of
action, liabilities, damages, losses, costs or expenses (including, without
limitation, court costs and attorneys' fees) of any kind or character arising
out of or otherwise relating to the ownership and/or operation of the Excluded
Black Hawk Assets or Excluded TOGCO Assets before and after the Effective Date.
In connection with (but not in limitation of the foregoing, it is specifically
understood and agreed that such duties, obligations and liabilities arising out
of or otherwise relating to the ownership and/or operation of the Excluded Black
Hawk Assets or Excluded TOGCO Assets before and after the Effective Date shall
be deemed to include all existing or threatened litigation and matters arising
out of the condition of the Excluded Black Hawk Assets or Excluded TOGCO Assets
on the Effective Date (including, without limitation, within such matters all
obligations to
39
properly plug and abandon, or replug and re-abandon, xxxxx located on the
Excluded Black Assets or Excluded TOGCO Assets, to restore the Excluded Black
Hawk Assets or Excluded TOGCO Assets and to comply with, or to bring the
Excluded Black Hawk Assets or Excluded TOGCO Assets into compliance with,
applicable environmental laws, rules, regulations and orders, including
conducting any remediation activities which may be required on or otherwise in
connection with activities on the Excluded Black Hawk Assets or Excluded TOGCO
Assets), regardless of whether such condition or the events giving rise to such
condition arose or occurred before or after the Effective Date, and the
assumptions and indemnifications by Torch provided for in the first sentence of
this section shall expressly cover and include such matters. THE FOREGOING
ASSUMPTIONS AND INDEMNIFICATIONS SHALL APPLY WHETHER OR NOT SUCH DUTIES,
OBLIGATIONS OR LIABILITIES, OR SUCH CLAIMS, ACTIONS, CAUSES OF ACTION,
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES, ARISE OUT OF (i) NEGLIGENCE
(INCLUDING SOLE NEGLIGENCE, SINGLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE,
PASSIVE NEGLIGENCE OR GROSS NEGLIGENCE) OF ANY INDEMNIFIED PARTY, OR (ii) STRICT
LIABILITY. Notwithstanding anything set forth in this Section 8.2, the maximum
amount for which Torch shall be liable under this Section with respect to the
Excluded Black Hawk Assets shall be the amount of the Exchange Value and
Contingent Payment allocated to the Black Hawk Assets and with respect to the
Excluded TOGCO Assets shall be the amount of the Exchange Value and Contingent
Payment allocated to the TOGCO Assets.
SECTION 8.3 WAIVERS. Except as provided in Section 8.2, if the Closing
occurs, each of Bellwether and Buyer on behalf of itself and each of its
affiliates, successors and assigns (and their respective stockholders,
directors, officers, employees, attorneys, contractors and agents) shall be
deemed to have waived, to the fullest extent permitted under applicable law, any
right of contribution against Sellers or any of their respective affiliates,
successors and assigns (and their respective stockholders, directors, officers,
employees, attorneys, contractors and agents) arising under or based on any
federal, state or local statute, law, ordinance, rule or regulation or common
law or otherwise relating to the Properties acquired by Buyer pursuant to the
Transactions.
ARTICLE IX. STEERING COMMITTEE AGREEMENT
SECTION 9.1 CONTINUATION OF AGREEMENTS. The Steering Committee Agreement
(the "SCA") dated as of October 24, 1996, by and among certain of the
Institutional Sellers, a copy of which has been furnished to each party, is
hereby continued as provided in Section 9.2 by the Institutional Sellers who
were original parties thereto and is hereby joined into and made by the
Institutional Sellers who originally were not parties thereto. The Related
Agreement (the "Related Agreement") dated as of October 24, 1996, attached to
the SCA as Exhibit C and made by Torch for the benefit of the parties named
therein is hereby continued so that it also relates to the SCA, as amended in
Section 9.2. Torch hereby agrees to the amendment of the SCA as set forth in
Section 9.2.
SECTION 9.2. AMENDMENT OF AGREEMENTS. The SCA is hereby amended as set
forth below in this Section 9.2. References in the Related Agreement to the SCA
shall mean the SCA as continued and amended by this Article IX. Terms which are
defined in the SCA shall have the same meanings when used herein.
(a) INVESTORS. After the date of this Agreement, "Investor" shall
mean the Institutional Sellers who are parties to this Agreement.
40
(b) EXPENSE PERCENTAGE. After the date of this Agreement, the
"Expense Percentage" shall mean for Torch or each Investor a fraction
expressed as a percentage, the numerator of which for Torch is the
aggregate of the Exchange Values for the General Partners, Black Hawk,
TEA, TOC and TOGCO, the numerator of which for an Investor is the
aggregate of the Exchange Values for such Investor, and the denominator of
which is the aggregate of the Exchange Values for the General Partners,
Black Hawk, TEA, TOC, TOGCO and all Investors. The Expense Percentages
shall aggregate 100% for Torch and all Investors.
(c) INVESTOR PERCENTAGE. After the date of this Agreement, the
"Investor Percentage" shall mean for each Investor a fraction expressed as
a percentage, the numerator of which is the aggregate of the Exchange
Values for such Investor, and the denominator of which is the aggregate of
the Exchange Values for all Investors.
(d) MEMBERS OF STEERING COMMITTEE. After this Agreement becomes
effective, Xxxxx Xxxxxx and Xxxx Xxxxxxxx shall no longer be Members of
the Committee.
(e) ROLE OF COMMITTEE. After the date of this Agreement, the role of
the Committee shall be expanded to facilitate the closing of the
Transactions under this Agreement. The limitations on the Committee and
its Members set forth in Section 2.4(b) and elsewhere in the SCA shall
continue in full force and effect. The Committee and its Members shall
continue to have the authority set forth in Section 2.4(c) and elsewhere
in the SCA.
(f) PAYMENT OF EXPENSES. The expenses payable pursuant to Section
3.1 of the SCA shall be payable as follows:
(i) Those expenses which were incurred prior to March 1, 1997,
shall be paid by IBM and each other original Investor which does not
become an Institutional Seller under this Agreement, to the extent
of their respective original Expense Percentages and otherwise in
accordance with the original terms of the SCA and prior to the
amendments made pursuant to this Section 9.2; and
(ii) The expenses heretofore paid by Torch and the
Institutional Sellers under the SCA and hereafter payable by Torch
and the Institutional Sellers under the SCA shall be paid by Torch
and the Institutional Sellers in accordance with the amended
Expenses Percentages provided for in this Section 9.2. Adjustments
shall be made in the future payment of expenses by Torch and the
Institutional Sellers to properly allocate the past payment of
expenses by such parties in accordance with the foregoing provisions
of this subsection. The future payment of expenses pursuant to this
subsection shall include the payment to the Advisor of that portion
of its fee which is contingent upon, and becomes payable solely by
virtue of, the Transactions.
(g) PAYMENT OF INDEMNIFICATION COSTS. The Indemnification Costs
payable pursuant to Sections 2.5 and 3.2 of the SCA shall be payable as
follows:
(i) Those Indemnification Costs which arise or relate to acts
or omissions which occurred prior to February 14, 1997, shall be
paid by IBM and each other original Investor which does not become
an Institutional Seller under this Agreement, to the extent of their
respective original
41
Investor Percentages and otherwise in accordance with the original
terms of the SCA and prior to the amendments made pursuant to this
Section 9.2; and
(ii) All other Indemnification Costs shall be paid by the
Institutional Sellers in accordance with the amended Investor
Percentages provided for in this Section 9.2.
(h) PAYMENT OF EXPENSES. Torch shall continue to pay expenses in
accordance with Section 3.3 of the SCA, subject to the amendments provided
for in this Section 9.2. Further, Buyer shall pay at the Closing (or at
the Calculation Date) those expenses and Indemnification Costs payable
under the SCA which are then owing or which can be estimated and are
approved by the Committee and shall deduct the amount of such payments
from the amounts payable at Closing (or at the Calculation Date) from
Torch and the Institutional Sellers, all in accordance with Section 3.3
(which shall also be applicable to Buyer) and the other applicable
provisions of the SCA, as amended by this Section 9.2.
(i) TERM. The original term of the SCA is hereby extended
until the Closing Date and for a period of thirty days thereafter.
(j) OTHER PROVISIONS. The other provisions of the SCA shall
continue in full force and effect.
SECTION 9.3 NO LIABILITY OF BELLWETHER. Except as provided in Section
9.2(h), the covenants, agreements and obligations set forth in this Article IX
are solely those of Torch and the Institutional Sellers and the parties hereto
acknowledge and agree that Bellwether shall have no responsibility, liability or
obligation, direct or indirect, of any nature whatsoever with respect to the
breach, violation or performance of any of the provisions of this Article IX.
ARTICLE X. MISCELLANEOUS AND GENERAL
SECTION 10.1 SURVIVAL. The agreements of the parties contained herein
shall survive the consummation of the Transactions.
SECTION 10.2 MODIFICATION OR AMENDMENT. The parties hereto may modify or
amend this Agreement only by an agreement in writing executed and delivered by
duly authorized officers or representatives of each of the respective parties
hereto.
SECTION 10.3 WAIVER OF CONDITIONS. The conditions to the parties'
obligations to consummate the Transactions are for the sole benefit of such
party and may be waived by such party in whole or in part, to the extent
permitted by applicable law.
SECTION 10.4 COUNTERPARTS. This Agreement may be separately executed by
the parties hereto in any number of counterparts, each such counterpart being
deemed to be an original, and all such counterparts taken together shall
constitute the same agreement.
SECTION 10.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
SECTION 10.6 ENTIRE AGREEMENT, ETC. This Agreement (a) constitutes the
entire agreement, and supersedes all other prior agreements and understandings,
both written and oral, among the parties, with respect to the subject matter
hereof, including, without
42
limitation, the letter of intent and attached term sheet dated as of February
25, 1997, and (b) shall not be assignable by operation of law or otherwise and
is not intended to create any obligations to, or rights in respect of, any
persons other than the parties hereto.
SECTION 10.7 CAPTIONS. The Article, Section and paragraph captions herein
are for convenience of reference only, do not constitute part of this Agreement
and shall not be deemed to limit or otherwise affect any of the provisions
hereof.
SECTION 10.8 GUARANTY. (a) Bellwether hereby absolutely and
unconditionally guarantees the prompt, complete and full performance, when due,
of all obligations, agreements and undertakings of the Buyer under, by reason
of, or pursuant to this Agreement and any other agreement to which Buyer shall
become a party which may be made with respect to this Agreement.
(b) The obligations of Bellwether pursuant to this Section 10.8 are
independent of the obligations of the Buyer, and any Seller may proceed
directly to enforce all rights under this section without proceeding
against or joining the Buyer or any other person.
(c) The obligations of Bellwether arising under this Section 10.8
shall remain in full force and effect without regard to, and shall not be
affected or impaired by, any of the following:
(i) Any amendment to or modification of this Agreement or any
related document;
(ii) Any failure, omission or delay to enforce, assert or
exercise any right, power, privilege or remedy conferred by the
terms of this Agreement or any related document;
(iii) Any exercise or waiver of any right, power, privilege or
remedy conferred by the terms of this Agreement or any related
document, or the waiver of any default thereunder; or
(iv) The voluntary or involuntary liquidation, dissolution,
sale of all or substantially all assets, marshaling of assets or
liabilities, receivership, conservatorship, assignment for the
benefit of creditors, insolvency, bankruptcy, reorganization,
arrangement, composition or other proceedings under laws for the
protection of debtors affecting the Buyer, or any of the assets of
Buyer, or any discharge from liabilities or rejection of burdensome
contracts or obligations in the course of or resulting from any such
proceedings.
SECTION 10.9 LIMITED PARTNER EXECUTION. Each of the Limited Partners is
executing this Agreement solely for the purpose of making the representations
and warranties set forth in Section 5.3 and giving the consents specified in
Sections 2.7 and 6.1.
SECTION 10.10 ALLOCATION OF PURCHASE PRICE. Each party hereto agrees that
the purchase price shall be allocated among the individual Oil and Gas
Properties as described on Exhibit C.
SECTION 10.11 NO PARTNERSHIP OR THIRD PARTY BENEFICIARY. This Agreement
does not and shall not be construed to create a partnership, joint venture or
any other
43
relationship between the parties hereto. No person or party is intended to be or
shall be construed to be a third party beneficiary of this agreement or any
provision hereof.
SECTION 10.12 EFFECTIVENESS OF THIS AGREEMENT. (a) This Agreement shall
become effective as to those parties who are signatories hereto at the earlier
of the following (i) such time as this Agreement is executed by a sufficient
number of the parties listed on the signature pages hereof to transfer to the
Buyer at the Closing Oil and Gas Properties with a pre-tax present value,
discounted at 10%, of future net cash flows of the oil and gas reserves
attributable thereto, as of July 1, 1996, equal to at least 95% of the pre-tax
present value, discounted at 10%, of future net cash flows of oil and gas
reserves attributable to all of the Oil and Gas Properties (such present value
shall be based on the reserve reports as of June 30, 1996 set forth in
Bellwether's Registration Statement which excludes any interests owned by IBM)
or (ii) the date Bellwether shall notify the signatories to this Agreement that
the condition to closing the Transactions set forth in Section 7.3(a)(iii) will
be waived by Bellwether and Buyer if the signatories to this Agreement close the
Transactions.
(b) Bellwether and Buyer acknowledge that the Orange County Employees'
Retirement System ("Orange County") may be unable to execute this Agreement,
consent to a merger of TEAI VIII-B or sell its interest in TEAI VIII-B until
April 15, 1997, because of certain required approvals. Subject to the conditions
set forth in this Agreement, if Orange County is not able to execute this
Agreement prior to April 15:
(i) Buyer will purchase from the other Limited Partners of TEAI
VIII-B their respective Limited Partner interests in TEAI VIII-B.
(ii) The Exchange Value payable to Torch at the Closing will be
reduced by the Exchange Value attributable to the working interests
("Subject Interests") burdened by the Net Profits Interests owned by TEAI
VIII-B and by the Exchange Value attributable to the General Partner
interest in TEAI VIII-B and Torch will not be required to sell such
General Partner interest to Black Hawk and may distribute the Subject
Interests out of TOGCO prior to Closing.
(iii) Orange County will be permitted to execute a counterpart of
this Agreement on or prior to April 15, 1997, and following such execution
will be deemed a party hereto as if Orange County had executed this
Agreement on March 31, 1997. Promptly following the execution of this
Agreement by Orange County, Bellwether will purchase the Limited Partner
interest of Orange County in TEAI VIII-B for the Exchange Value (and when
payable as provided for in Section 4.3, the Contingent Payment)
attributable thereto, and Black Hawk will purchase the General Partner
interest in TEAI VIII-B and the Subject Interests from Torch for the
Exchange Value (and, when payable, the Contingent Payment) attributable
thereto.
(iv) If Orange County does not execute a counterpart of this
Agreement, the Contingent Payment allocable to the Subject Interests and
the General Partner interest in TEAI VIII-B will be paid to Bellwether.
(v) This Section 10.12(b) will not effect Bellwether's, Buyer's and
Black Hawk's rights and obligations hereunder with respect to any other
party other than the Limited Partners of TEAI VIII-B and Torch.
(vi) This Section 10.12(b) will control over the other applicable
provisions of this Agreement with respect to Orange County and TEAI
VIII-B.
44
SECTION 10.13 NOTICES. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date mailed, postage prepaid, by certified mail,
return receipt requested, or on the date personally delivered or delivered by an
over-night delivery service or telecopied and confirmed to the address of such
party as it appears on the signature page of this Agreement. Any party hereto
may designate a different address by notice to the other parties.
SECTION 10.14 SETTLEMENT AGREEMENT. Torchmark is executing this Agreement
solely to agree to enter into the Settlement Agreement at the Closing. The
amount to be paid by Torchmark to each Investor is set forth on Exhibit A of the
Settlement Agreement, which amounts are considered principal and interest for
the Type 3 Noteholder and the Type 4 Noteholder, and payments of overriding
royalties to the Type 2 Partnerships and the Type 5 Investors.
SECTION 10.15 INVESTMENT ADVISOR. Torch is a registered investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers Act"). Each
of the Institutional Sellers agrees that neither Torch nor any of its affiliates
are acting or have acted as an investment adviser under the Advisers Act to any
of the Institutional Sellers with respect to or in connection with, (i) any
decision to sell any of the Properties to any person, (ii) any of the
transactions contemplated in this Agreement or (iii) any of the terms or
conditions contained in this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers and representatives of the parties hereto on the
date first hereinabove written.
45
Program Acquisition Company PROGRAM ACQUISITION COMPANY,
Attention: X. Xxxxx Sere a Delaware corporation
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By:
Phone: (000) 000-0000 X. Xxxxx Sere, President
Fax: (000) 000-0000
Bellwether Exploration Company BELLWETHER EXPLORATION
Attention: X. Xxxxx Sere COMPANY
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000 By:
Fax: (000) 000-0000 X. Xxxxx Sere,
Chief Executive Officer
Torch Energy Advisors Incorporated TORCH ENERGY ADVISORS
Attention: Xxxxxx X. Xxxxxx INCORPORATED
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000 By:
Fax: (000) 000-0000 Xxxxxx X. Xxxxxx, Senior
Vice President
Black Hawk Oil Company BLACK HAWK OIL COMPANY
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By:
Phone: (000) 000-0000 Xxxxxx X. Xxxxxx,
Fax: (000) 000-0000 Vice President
Torch Operating Company TORCH OPERATING COMPANY
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By:
Phone: (000) 000-0000 Xxxxxx X. Xxxxxx,
Fax: (000) 000-0000 Vice President
TEAI Oil & Gas Company TEAI OIL & GAS COMPANY
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By:
Phone: (000) 000-0000 Xxxxxx X. Xxxxxx,
Fax: (000) 000-0000 Vice President
c/o Torch Energy Advisors Incorporated TORCH ENERGY ASSOCIATES LTD.
Attention: Xxxxxx X. Xxxxxx
1221 Xxxxx, Suite 1600 By: Torch Energy Advisors Incorporated,
Xxxxxxx, Xxxxx 00000 General Partner
Phone: (000) 000-0000
Fax: (000) 000-0000
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Torchmark Corporation TORCHMARK CORPORATION
Attention: Xxxxxx Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000 By:
Telefax: (000) 000-0000 Xxxxx X. Xxxxxx, Vice Chairman
of the Board
46
c/o Torch Energy Advisors 1986-STEA LIMITED PARTNERSHIP I,
Incorporated a Texas limited partnership
Attention: Xxxxxx X. Xxxxxx
1221 Xxxxx, Suite 1600 By: TORCH ENERGY ASSOCIATES
Xxxxxxx, Xxxxx 00000 LTD., General Partner
Phone: (000) 000-0000 By: Torch Energy Advisors Incorporated,
Fax: (000) 000-0000 General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
c/o American General Life Insurance Co. XXXXXXXXXXXXX CORPORATION
Attention: Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxxx - Xxxxxxxx X
Xxxxxxx, Xxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
c/o AEGON USA Investment Management LIFE INVESTORS INSURANCE
Attention: Xxxxxx X. Xxxxx COMPANY OF AMERICA
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated TORCH ENERGY ASSOCIATES LTD.
Attention: Xxxxxx X. Xxxxxx
1221 Xxxxx, Suite 1600 By: Torch Energy Advisors Incorporated,
Xxxxxxx, Xxxxx 00000 General Partner
Phone: (000) 000-0000
Fax: (000) 000-0000
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
47
c/o Torch Energy Advisors Incorporated 1986 STEA LIMITED PARTNERSHIP II,
Attention: Xxxxxx X. Xxxxxx
1221 Xxxxx, Suite 1600 By: TORCH ENERGY ASSOCIATES
Xxxxxxx, Xxxxx 00000 LTD., General Partner
Phone: (000) 000-0000 By: Torch Energy Advisors Incorporated,
Fax: (000) 000-0000 General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Canada Life Investment Management THE CANADA LIFE ASSURANCE
Attention: Xxxxxx X. Xxxxxx COMPANY
000 Xxxxxxxxxx Xxxxxx, xxx00
Xxxxxxx, Xxxxxxx
XXXXXX X0X0X0 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
c/o Torch Energy Advisors Incorporated 1987-I STEA LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
c/o MetLife Corporation Equities METROPOLITAN LIFE
Attention: Xxxxx Samples INSURANCE COMPANY
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o UNUM Corp. FIRST UNUM LIFE INSURANCE
Attention: Xxxxx X. Xxxxxx COMPANY
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
48
c/o Torchmark Corporation GLOBE LIFE AND ACCIDENT
Attention: Xxxxxx Xxxxxxxx INSURANCE COMPANY
0000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx,
Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
c/o Torchmark Corporation LIBERTY NATIONAL LIFE INSURANCE
Attention: Xxxxxx Xxxxxxxx COMPANY
0000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
c/o Torchmark Corporation UNITED AMERICAN INSURANCE
Attention: Xxxxxx Xxxxxxxx COMPANY
0000 Xxxxx Xxxxxx,
Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
c/o UNUM Corp. TRUSTEES OF THE UNUM EMPLOYEES
Attention: Xxxxx X. Xxxxxx PENSION PLAN & TRUST
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Security Benefit Life Insurance Company SECURITY BENEFIT LIFE INSURANCE
Attention: Xxxxx X. Xxxxx COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated 1987-II STEA LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
49
Canada Life Investment Management THE CANADA LIFE ASSURANCE
Attention: Xxxxxx X. Xxxxxx COMPANY
000 Xxxxxxxxxx Xxxxxx, xxx00
Xxxxxxx, Xxxxxxx
XXXXXX X0X0X0 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
c/o Torch Energy Advisors Incorporated 1987-VI STEA LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Phoenix Home Life Mutual Insurance PHOENIX HOME LIFE MUTUAL
Attention: Xxxx X. Xxxxx INSURANCE COMPANY
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Phone: (000) 000-0000 By:
Fax: (000) 000-0000 Name:
Title:
Copy to:
Xxxxxxx X. Xxxxxxx
0 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxx, Xxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
c/o Torch Energy Advisors Incorporated 1988-I TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
50
UNUM Corp. FIRST UNUM LIFE INSURANCE
Attention: Xxxxx X. Xxxxxx COMPANY
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torchmark Corporation GLOBE LIFE AND ACCIDENT
Attention: Xxxxxx Xxxxxxxx INSURANCE COMPANY
0000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
c/o Torchmark Corporation LIBERTY NATIONAL LIFE INSURANCE
Attention: Xxxxxx Xxxxxxxx COMPANY
0000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
Provident Mutual Life Insurance PROVIDENT MUTUAL LIFE
Attention: Xxxxx X. Xxxxxx, Xx. INSURANCE COMPANY OF
0000 Xxxxxxxxx Xxxxx XXXXXXXXXXXX
Xxxxxx, Xxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 By
Name:
Title:
Security Benefit Life Insurance Company SECURITY BENEFIT LIFE INSURANCE
Attention: Xxxxx X. Xxxxx COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torchmark Corporation UNITED AMERICAN INSURANCE
Attention: Xxxxxx Xxxxxxxx COMPANY
0000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
51
c/o UNUM Corp. TRUSTEES OF THE UNUM EMPLOYEES PENSION
Attention: Xxxxx X. Xxxxxx PLAN & TRUST
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
c/o Torch Energy Advisors Incorporated 1988-II TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Canada Life Investment Management CANADA LIFE INSURANCE COMPANY
Attention: Xxxxxx X. Xxxxxx OF AMERICA
000 Xxxxxxxxxx Xxxxxx, xxx00
Xxxxxxx, Xxxxxxx
XXXXXX X0X0X0 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
c/o Torch Energy Advisors Incorporated 1988-V TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
New York Life Insurance Company NEW YORK LIFE INSURANCE
Attention: Xxxx X. Xxxxxxx COMPANY
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
52
c/o Torch Energy Advisors Incorporated 1988-VI TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Phoenix Home Life Mutual Insurance PHOENIX HOME LIFE MUTUAL
Attention: Xxxx X. Xxxxx INSURANCE COMPANY
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
Copy to:
Xxxxxxx X. Xxxxxxx
0 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxx, Xxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
c/o Torch Energy Advisors Incorporated 1989-I TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Name:
Title:
Canada Life Investment Management CANADA LIFE INSURANCE COMPANY
Attention: Xxxxxx X. Xxxxxx OF AMERICA
000 Xxxxxxxxxx Xxxxxx, xxx00
Xxxxxxx, Xxxxxxx
XXXXXX X0X0X0 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
53
UNUM Corp. FIRST UNUM LIFE INSURANCE
Attention: Xxxxx X. Xxxxxx COMPANY
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torchmark Corporation GLOBE LIFE AND ACCIDENT
Attention: Xxxxxx Xxxxxxxx INSURANCE COMPANY
0000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
c/o Torchmark Corporation LIBERTY NATIONAL LIFE INSURANCE
Attention: Xxxxxx Xxxxxxxx COMPANY
0000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
AEGON USA Investment Management LIFE INVESTORS INSURANCE
Attention: Xxxxxx X. Xxxxx COMPANY OF AMERICA
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
Provident Mutual Life Insurance PROVIDENT MUTUAL LIFE
Attention: Xxxxx X. Xxxxxx, Xx. INSURANCE COMPANY OF
0000 Xxxxxxxxx Xxxxx XXXXXXXXXXXX
Xxxxxx, Xxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 By
Name:
Title:
Security Benefit Life Insurance Company SECURITY BENEFIT LIFE INSURANCE
Attention: Xxxxx X. Xxxxx COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
54
c/o Torchmark Corporation UNITED AMERICAN INSURANCE
Attention: Xxxxxx Xxxxxxxx COMPANY
0000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
UNUM Corp. TRUSTEES OF THE UNUM EMPLOYEES PENSION
Attention: Xxxxx X. Xxxxxx PLAN & TRUST
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
MetLife Corporation Equities METROPOLITAN LIFE
Attention: Xxxxx Samples INSURANCE COMPANY
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated TEAI VII-A LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Alfa Corporation ALFA MUTUAL INSURANCE COMPANY
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Alfa Corporation ALFA FIRE INSURANCE COMPANY
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
55
Alfa Corporation ALFA LIFE INSURANCE
Attention: Xxxxxxx X. Xxxxxxxx CORPORATION
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
Alfa Corporation ALFA MUTUAL GENERAL INSURANCE COMPANY
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Alfa Corporation ALFA GENERAL INSURANCE
Attention: Xxxxxxx X. Xxxxxxxx CORPORATION
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
Alfa Corporation ALFA INSURANCE CORPORATION
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Security Benefit Life Insurance Company SECURITY BENEFIT LIFE
Attention: Xxxxx X. Xxxxx INSURANCE COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torchmark Corporation UNITED INVESTORS LIFE INSURANCE
Attention: Xxxxxx Xxxxxxxx COMPANY
0000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000 By
Name:
Title:
56
UNUM Corp. TRUSTEES OF THE UNUM EMPLOYEES
Attention: Xxxxx X. Xxxxxx PENSION PLAN & TRUST
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated TEAI VIII-A LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Alfa Corporation ALFA INVESTORS PARTNERSHIP
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Security Benefit Life Insurance Company SECURITY BENEFIT LIFE INSURANCE
Attention: Xxxxx X. Xxxxx COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated 1987-III STEA LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
57
Xxxxxxx Xxxx Mellon Foundation XXXXXXX XXXX XXXXXX FOUNDATION
Attention: Xxxxxx X. Xxxxxxxxxx
Mill Street Extension
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
The Xxxxxx Xxxxxx Medical Institute XXXXXX XXXXXX MEDICAL
Attention: Xxxx X. Xxxxxxxx INSTITUTE
0000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated 1987-IV STEA LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
c/o GE Investments TRUSTEES OF GENERAL ELECTRIC
Attention: Xxxxxxx Xxxxxxxxxx PENSION TRUST
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated 1988-III TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
58
Xxxxxxx Xxxx Mellon Foundation XXXXXXX XXXX XXXXXX
Attention: Xxxxxx X. Xxxxxxxxxx FOUNDATION
Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated 1988-IV STEA LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
c/o GE Investments TRUSTEES OF GENERAL ELECTRIC
Attention: Xxxxxxx Xxxxxxxxxx PENSION TRUST
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated 1988-VII TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ASSOCIATES
Phone: (000) 000-0000 LTD., General Partner
Fax: (000) 000-0000 By: Torch Energy Advisors Incorporated,
General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
The Xxxxxx Xxxxxx Medical Institute XXXXXX XXXXXX MEDICAL INSTITUTE
Attention: Xxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 00000-0000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
59
c/o Torch Energy Advisors Incorporated 1989-III TEAI LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Decurion Employees Retirement Trust RETIREMENT TRUST FOR THE
Attention: Xxxxxxx Xxx EMPLOYEES OF THE DECURION
000 Xxxxx Xxxxxxxxx, Xxxxx 000 XXXXXXXXXXX
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 By
Name:
Title:
Xxxxx College XXXXX COLLEGE
Attention: Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
The Xxxxxx Xxxxxx Medical Institute XXXXXX XXXXXX MEDICAL
Attention: Xxxx X. Xxxxxxxx INSTITUTE
0000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
Xxxxxxx Xxxx Xxxxxx Foundation XXXXXXX XXXX MELLON
Attention: Xxxxxx X. Xxxxxxxxxx FOUNDATION
Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
TIAA-CREF TEACHERS INSURANCE AND
Attention: Xxxxx X. Xxxxxxxxx ANNUITY ASSOCIATION OF
000 Xxxxx Xxxxxx XXXXXXX
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 By
Name:
Title:
00
Xxxxxxxxxx xx Xxxxxxx THE UNIVERSITY OF CHICAGO
Attention: Xxxxxxx X'Xxxxxxx
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxx 000 By
Xxxxxxx, Xxxxxxxx 00000 Name:
Phone: (000) 000-0000 Title:
Fax: (000) 000-0000
UNUM Corp. TRUSTEES OF THE UNUM EMPLOYEES
Attention: Xxxxx X. Xxxxxx PENSION PLAN & TRUST
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated TEAI VII-B LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
The Xxxxxx Xxxxxx Medical Institute XXXXXX XXXXXX MEDICAL
Attention: Xxxx X. Xxxxxxxx INSTITUTE
0000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
Xxxxxxx Xxxx Xxxxxx Foundation XXXXXXX XXXX MELLON FOUNDATION
Attention: Xxxxxx X. Xxxxxxxxxx
Mill Street Extension
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
University of Chicago THE UNIVERSITY OF CHICAGO
Attention: Xxxxxxx X'Xxxxxxx
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Fire & Police Pension Association COLORADO FIRE & POLICE
of Colorado PENSION ASSOCIATION
Attention: Xxxx X. Xxxxxx
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
c/o Torch Energy Advisors Incorporated TEAI VIII-B LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
61
Fire & Police Pension Association COLORADO FIRE & POLICE
of Colorado PENSION ASSOCIATION
Attention: Xxxx X. Xxxxxx
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Orange County Retirement System ORANGE COUNTY EMPLOYEES'
Attention: Xxxxxxx X. Xxxxxxx RETIREMENT SYSTEM
0000 Xxxxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
Xxxxxxx Xxxx Xxxxxx Foundation XXXXXXX XXXX MELLON FOUNDATION
Attention: Xxxxxx X. Xxxxxxxxxx
Mill Street Extension
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
62
c/o Torch Energy Advisors Incorporated TEAI VIII-C LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
University of Chicago THE UNIVERSITY OF CHICAGO
Attention: Xxxxxxx X'Xxxxxxx
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 By
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
c/o Torch Energy Advisors Incorporated TEAI VIII-M LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
Michigan Department of Treasury STATE TREASURER OF THE STATE OF
Bureau of Investments MICHIGAN, CUSTODIAN OF THE MICHIGAN
Attention: Xx. Xxxxx X. Xxxx PUBLIC SCHOOL EMPLOYEES' RETIREMENT
000 Xxxx Xxxxxxx XXXXXX, XXXXX EMPLOYEES' RETIREMENT
Xxxxxxx, Xxxxxxxx 00000 SYSTEM, MICHIGAN STATE POLICE
Phone: (000) 000-0000 RETIREMENT SYSTEM, AND MICHIGAN JUDGES
Fax: (000) 000-0000 RETIREMENT SYSTEM
By
Name:
Title:
63
c/o Torch Energy Advisors Incorporated TEAI VII-C LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
c/o Torch Energy Advisors Incorporated N. E. FINANCIAL INC.
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By
Phone: (000) 000-0000 Xxxxxx X. Xxxxxx,
Fax: (000) 000-0000 Vice President
MetLife Corporation Equities METROPOLITAN LIFE
Attention: Xxxxx Samples INSURANCE COMPANY
000 Xxxxxxx Xxxxxx (as noteholder)
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
Phone: (000) 000-0000 By
Fax: (000) 000-0000 Name:
Title:
c/o Torch Energy Advisors Incorporated TEAI VII-D LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
c/o Torch Energy Advisors Incorporated T. I. FINANCIAL, INC.
Attention: Xxxxxx X. Xxxxxx
1221 Xxxxx, Suite 1600 By:
Xxxxxxx, Xxxxx 00000 Xxxxxx X. Xxxxxx,
Phone: (000) 000-0000 Vice President
Fax: (000) 000-0000
64
TIAA-CREF TEACHERS INSURANCE AND
Attention: Xxxxx X. Xxxxxxxxx ANNUITY ASSOCIATION OF
000 Xxxxx Xxxxxx XXXXXXX (as noteholder)
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 By:
Name:
Title:
c/o Torch Energy Advisors Incorporated TEAI VIII-D LIMITED PARTNERSHIP,
Attention: Xxxxxx X. Xxxxxx a Texas limited partnership
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 By: TORCH ENERGY ADVISORS
Phone: (000) 000-0000 INCORPORATED,
Fax: (000) 000-0000 Its General Partner
By:
Xxxxxx X. Xxxxxx, Senior
Vice President
c/o Torch Energy Advisors Incorporated T. I. FINANCIAL, INC.
Attention: Xxxxxx X. Xxxxxx
1221 Xxxxx, Suite 1600 By:
Xxxxxxx, Xxxxx 00000 Xxxxxx X. Xxxxxx,
Phone: (000) 000-0000 Vice President
Fax: (000) 000-0000
TIAA-CREF TEACHERS INSURANCE AND
Attention: Xxxxx X. Xxxxxxxxx ANNUITY ASSOCIATION OF
000 Xxxxx Xxxxxx XXXXXXX (as noteholder)
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 By:
Name:
Title:
GE Investments GEAPPL CORP.
Attention: Xxxxxxx Xxxxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000 By:
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
Delta Air Lines Benefit Trust ZETA MT HOLDING, INC.
Attention: Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000 By:
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
65
CITIBANK, F.S.B., AS DIRECTED
TRUSTEE OF THE DELTA MASTER
Delta Air Lines Benefit Trust TRUST
Attention: Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000 By:
Phone: (000) 000-0000 Name:
Fax: (000) 000-0000 Title:
66
