PURCHASE AND SALE AGREEMENT
EXECUTION
VERSION
This
Purchase and Sale Agreement ("Agreement")
is
entered into as of November 9, 2006,
to
be effective as
of
10:00
a.m., Central Time, on September 1, 2006 (the "Effective
Date"),
by and between Westside Energy Production Company, LP, a Texas limited
partnership, whose
address is 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000,
("Westside"),
and
Cimmarron
Gathering, LP, a Texas limited partnership, whose address is X.X. Xxx 0000,
Xxxxxxxxxxx, Xxxxx 00000-0000, ("Cimmarron"). Westside
and Cimmarron are sometimes hereinafter referred to individually as a
"Party"
or
collectively as "Parties."
WITNESSETH:
WHEREAS,
The Tri-County Gas
Gathering
System ("TCGGS")
is
a
natural gas gathering
system which owns or controls natural gas gathered and delivered to other
transporters located
in Xxxxx, Xxxxxxxx and Xxxx Counties, Texas; and
WHEREAS,
TCGGS is comprised of, but not limited to: certain real and personal
property
consisting of, but not limited to: easements, rights of way, surface leases,
pipelines, fittings,
launchers, receivers, tanks, separators, meters, valves, cathodic protection
equipment, CO2
Plants, compressors, heaters, dehydration units and other above and below ground
facilities necessary
for TCGGS operations, hereinafter referred to as (the "TCGGS
Property"); and
WHEREAS,
the method, process, and procedures related to the construction and operation
of TCGGS is governed by that certain AGREEMENT FOR THE CONSTRUCTION AND
OPERATION OF THE TRI-COUNTY GAS GATHERING SYSTEM, by and between Cimmarron
Transportation, LLC, ("Cimmarron") Benco
Operating, Inc. ("Beneo")
and
CC
Texas
Gathering, L.P ("CCTX") effective January 1, 2005 (the "Operating
Agreement"); and
WHEREAS,
Effective January 1, 2005, TCGGS was formed and an undivided capital
equity
in
TCGGS ownership interest was established as follows:
Cimmarron
33.334%
Benco
33.333%
CCTX
33.333%
("TCGGS
Property Ownership") and
WHEREAS,
undivided capital equity position of TCGGS ownership was accomplished
by
Cimmarron, BENCO and CCTX each party assigning an undivided interest in assets
to the other
two
Parties in Wise, Montague and Xxxxx Counties, Texas subject to the provisions
within the
Operating Agreement and at two (2) other dates by contributing cash at two
Tri-County Gas Gathering "True Ups" (as defined in the Operating Agreement);
and
WHEREAS,
Effective June 1, 2005 Cimmarron Transportation reorganized and its interest
in TCGGS is now owned by Cimmarron; and
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406066881v
WHEREAS,
Effective December 1, 2004, By Assignment and Xxxx of Sale by and between
Central Crude, Inc., a Louisiana corporation ("Central
Crude"), as
Seller,
and EBS Oil &
Gas
Partners Production Company, LP, a Texas limited partnership, ("EBS") as Buyer,
Central Crude
assigned a forty nine percent (49%) interest in the Wise County Gathering System
("WCGGS")
to
EBS;
and
WHEREAS,
Effective December 1, 2004, an Agreement by and between Central Crude
and
EBS
was executed whereby authorized CCTX to merge WCGGS into TCGGS; and
WHEREAS,
by merger, effective October 1, 2005, Westside acquired one hundred percent
(100%) ownership interest in EBS, resulting in 49.00% EBS WCGGS Property
Ownership
being owned solely by Westside; and
WHEREAS,
of even date with this Agreement Benco, CCTX and Westside entered into that
certain Stipulation of Ownership dated effective as
of
10:00a.m. Central Time on September 1, 2006 (the "Stipulation")
attached
her to as
Exhibit
F
whereby the parties agreed and stipulated as to the interests of each of the
parties in and to the TCGGS and establishing Westside's interest in and to
the
TCGGS at 16.333%; and
WHEREAS,
Westside's 16.333% ownership interest in and to the TCGGS shall hereinafter
be referred to as the "Property;"
and
WHEREAS,
Cimmarron desires to purchase the Property from Westside and Westside is
desirous
of selling, transferring and assigning all of its right, title and interest
in
the Property to Cirrunarron, in the manner described herein, without warranty
of
any kind, except as specifically provided
herein; and
WHEREAS,
any transfer of the Property, pursuant to Article VII. of the Operating
Agreement
requires a preferential right be offered to other parties; and
NOW,
THEREFORE, in consideration of the premises, the mutual covenants set forth
below,
and for other valuable and mutually sufficient consideration, the receipt and
sufficiency of which is hereby acknowledged, Westside and Cimmarron do hereby
agree as follows:
1. Property
to be purchased by Cimmarron from Westside:
1.1 Purchase
and Sale of Property.
Cimmarron
agrees to purchase and Westside agrees to sell, Agreement effective one
hundred
percent (100%) of the Property from Westside for the sum Four Million Nine
Hundred Forty-One
Thousand Nine Hundred Eighty-Four and 95/100 Dollars ($4,941,984.95) (the
"Purchase
Price").
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406066881v
1.2The
Assignment.
On
the
Closing Date, Westside shall assign the Property to CCTX, effective as of the
Effective
Date pursuant to an Assignment and Xxxx of Sale in a form substantially similar
to Exhibit
A
attached
hereto, including but not limited to the acknowledgement of Cimmarron
contained
in Section
4.3 hereof
and the limitations of warranty contained in Section
3.2 hereof.
2.Closing
Date; Purchase Price; Deliveries at Closing; Pre-closing Due
Diligence:
2.1
Closing. The
closing ("Closing")
shall
take place on or before 10:00 a.m. November
10, 2006 (the "Closing
Date") at
Westside's offices at 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000,
Xxxxxx Xxxxx 00000. The Parties may mutually agree in writing to change the
time
and place
of
Closing. At Closing Westside shall deliver to CCTX the items set forth in
Section
2.2 and
Cimmarron shall pay to Westside the Purchase Price by wire transfer pursuant
to
wire transfer
instructions received by Cimmarron prior to Closing.
2.2 Deliveries
at Closing. At
the
Closing, the following documents shall be delivered
by
the
Parties:
(a) Conveyance
Documents. Westside
shall deliver (i) three (3) fully executed
and acknowledged originals of Assignment and Xxxx of Sale in substantially
the
form attached
as Exhibit
A
dated
effective as of the Effective Date covering all of Westside's right,
title,
and interest in and to the Property and (ii) a fully executed Stipulation in
form of Exhibit
F attached
hereto;
(b) Payment
of Purchase Price. Cimmarron
shall pay the Purchase Price to Westside
pursuant to wire transfer instructions delivered to Cimmarron by
Westside;
(c) Non-Foreign
Affidavit. Westside
shall deliver to Cimmarron an affidavit in
the
form substantially the same as Exhibit
B attached
hereto and made a part hereof, setting forth
its
taxpayer identification number and that it is not a "foreign person" as provided
in Section
1445(b)(2) of the Internal Revenue Code of 1986, as amended;
(d) Certificate
of Good Standing. Westside
shall deliver to Cimmarron a Certificate
of Good Standing, issued by the Secretary of State for the State of Texas dated
not more
than
ten (10) days prior to the Closing;
(e) Incumbency
Certificate. Westside
Pipeline shall deliver to Cimmarron an Incumbency
Certificate substantially the same as Exhibit
C attached
hereto and made a part hereof,
with respect to any Persons executing documents at the Closing on its
behalf;
(f) Board
Resolution of Westside Westside
shall deliver to Cimmarron a certificate
certifying the resolutions adopted by which certificate shall be substantially
the same as
Exhibit
D attached
hereto and made a part hereof;
(g) Westside
Officer's Certificate. Westside
shall deliver a certified copy of
Officer's
Certificate, substantially the same as Exhibit
E attached
hereto and made a part hereof,
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406066861v6
1.2The
Assignment.
fully
executed by a duly authorized officer of its general partner authorizing and
approving the execution,
delivery and performance of this Agreement and all other documents, instruments
and agreements
contemplated by this Agreement; and
(h)
Other
Documents and Actions. Each
Party shall execute such other instruments
and take such other actions as may be reasonably requested by another Party
in
order to give full effect to the obligations of such Party under this
Agreement.
3.Representations
and Warranties of Westside:
Westside,
except as hereinafter expressly stated to the contrary, represents and warrants
to Cimmarron
as follows:
3.1Organization
and Good Standing:
Westside
is a limited partnership, duly organized, validly existing and in good standing
under the laws of the State of Texas. Westside has the power to carry on its
business as it is now being
conducted, to enter into this Agreement and to perform its obligations
hereunder, and is duly
qualified, in good standing and authorized to conduct business in the State
of
Texas.
3.2Representations
and Warranties:
(a) FROM
AND AFTER CLOSING AND AFTER GIVING EFFECT TO THE
STIPULATION, TO THE FULLEST EXTENT PERMITTED BY LAW, WESTSIDE HEREBY WARRANTS
TITLE TO THE PROPERTY AND WILL INDEMNIFY
AND DEFEND CIMMARRON AND ITS SUCCESSORS, LEGAL REPRESENTATIVES
AND ASSIGNS AGAINST THE LAWFUL CLAIMS OF TITLE OF ALL PERSONS CLAIMING TITLE
OR
ANY INTEREST TO THE PROPERTY
BY, THROUGH AND UNDER WESTSIDE, BUT NOT OTHERWISE.
(b) EXCEPT
AS
EXPRESSLY
PROVIDED WITHIN THIS SECTION
3.2, WESTSIDE
MAKES NO REPRESENTATIONS OR WARRANTIES
AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
OR OTHERWISE; AND THE PROPERTY IS ASSIGNED "AS IS," "WHERE
IS," AND WITH ALL
FAULTS OR
DEFECTS AS
OF
THE EFFECTIVE DATE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WESTSIDE
SHALL NOT BE LIABLE, TO ANY EXTENT WHATSOEVER, FOR THE QUALITY, CONDITION,
OPERATION OR PERFORMANCE OF THE PROPERTY.
(c)
Westside warrants and represents that all Westside capital expenses and
obligations
for the Property for which Westside has been billed or invoiced have been
paid
in
full as of September 1, 2006 except for AFE numbers 6325 and 6326 which will
be
assumed by and shall be the responsibility of Cimmarron.
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406066861v6
1.2The
Assignment.
(d) Westside
warrants that it has all authority necessary to enter into the sale of
the
Property to Cimmarron and perform all obligations under this Agreement, and
this
Agreement
is a legal, valid, binding obligation of Westside enforceable against Westside
in
accordance with its terms, except to the extent (i) such enforcement may be
limited by applicable
bankruptcy, insolvency, or similar laws affecting creditors' rights, and (ii)
the remedy
of
specific performance and injunctive and other forms of equitable relief may
be
subject
to equitable defenses and to the discretion of the court before which any
proceedings may be brought.
(e) To
the
knowledge of Westside, except for (i) the consent of GasRock Capital LLC
("GasRock")
and
(ii)
the waiver of preferential purchase rights by CCTX or its
affiliates, no consent of or by, or filing with, any other person or entity
is
required with respect
to Westside in connection with the execution, delivery, or enforceability of
this Agreement
or the consummation of the sale of the Property provided for in this
Agreement.
(f) To
the
knowledge of Westside, Westside is not under any investigation with
respect to, nor has it been threatened to be charged with, nor has it been
given
any notice
of
any violation of any law or permit, nor has any judgment, order, or decree
been
issued by any governmental authority with respect to the Property being
transferred pursuant to this Agreement.
(g) Except
for liens in favor of GasRock which will be released contemporaneously
with Closing, to the knowledge of Westside, the Property is not subject
to any Liens that are the result of any action or omission during Westside's
ownership.
(h) To
the
knowledge of Westside, no claim, suit, action or other proceeding is
pending before any court or other Governmental Authority with respect to the
Property, or its ownership or operation.
(i) Westside
has not incurred any obligation or liability, contingent or.
otherwise, nor has made any agreement with respect to any broker or finder's
fees arising out of or in any way related to the transactions contemplated
by
this Agreement.
(j) To
the
knowledge of Westside, Westside has not caused, either through action
or
inaction, nor has the exercise of eminent domain against Westside's interest
by
a third
party caused, any of Westside's interests in the easements comprising the
Property to
have
terminated.
(k) The
provision of this Section
3.2 shall
survive the execution and delivery
of
the
Assignment and Xxxx of Sale by Westside.
3.3
No Notification:
Westside
represents that, to the best of its knowledge, it has not received notification
from
any
governmental agency, person or other entity of any existing Environmental
Condition
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406066861v6
(as
defined in Section
5.4) or
any
conditions requiring any work to be done regarding Chemical Substance,
Oil Field Substance or waste on the Property.(as those terms are defined in
Section
5.4).
In
addition, Westside also represents that to the best of its knowledge, it has
not
received notification
from any surface owner of any surface or subsurface damage claim.
4. Representations
and Warranties of
Cimmarron:
Cimmarron
represents and warrants to Westside as follows:
4.1Organization
and Good Standing:
Cimmarron
is a Texas limited partnership, duly organized, validly existing and in good
standing
under the laws of the State of Texas. Cimmarron has the power to carry on its
business as
it is
now being conducted, to enter into this Agreement and to perform its obligations
hereunder,
and is duly qualified to do business and is in good standing in the State of
Texas.
4.2Authority
Relative to this Agreement:
The
execution, delivery and performance of this Agreement by Cimmarron and the
purchase
of the Properties contemplated herein have been duly and validly authorized
by
all requisite action.
4.3Warranties:
CIMMARRON
REPRESENTS AND WARRANTS TO WESTSIDE THAT IT HAS FULLY
INSPECTED THE PROPERTY, THAT IT HAS THE EXPERTISE TO PROPERLY
EVALUATE THE PROPERTY, AND THAT IT ACCEPTS THE PROPERTY
IN ITS PRESENT CONDITION AND LOCATION "AS IS, WHERE IS, AND
WITH ALL FAULTS," CIMMARRON IS RELYING SOLELY ON ITS PRIOR EXPERIENCE
IN OWNING AND OPERATING ASSETS OF THE TYPE AND NATURE
SIMILAR TO THE PROPERTY AND ON ITS INDEPENDENT INSPECTION OF
THE PROPERTY INCIDENT TO ITS DECISION TO PURCHASE THE PROPERTY
AND EXPRESSLY REPRESENTS AND WARRANTS TO WESTSIDE THAT
IT IS NOT RELYING ON ANY STATEMENTS, INFORMATION FROM OR REPRESENTATIONS AND
WARRANTIES OF WESTSIDE. IN THIS REGARD, CIMMARRON ACKNOWLEDGES THAT IT IS
RELYING SOLELY UPON ITS INSPECTION
OF THE PROPERTY AS TO THE PROPERTY'S PHYSICAL CONDITION,
INCLUDING BUT NOT LIMITED TO THE EXISTENCE OF ANY ENVIRONMENTAL CONDITION (AS
DEFINED HEREIN BELOW).
Cimmarron
is aware and expressly acknowledges that the rights in and to the
Property
being assigned hereunder, as such rights relate to the lands covered by the
Property
may (by way of example and not of limitation) be subject to gaps in ownership,
require consents to assign, be subject to prohibitions against assignment,
be
subject to prohibitions against multiple lines. It is expressly understood
and
agreed to between the Parties that Westside shall not be liable to Cimmarron
or
any third Party, to any extent
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406066861v6
whatsoever,
for any claims, suits or damages in any manner associated with the above or
similar or related matters to which Cimmarron may be
subject.
The
provisions of this Section
4.3 shall
survive the execution and delivery of the Assignment
and Xxxx of Sale by Westside.
5.Indemnity:
5.1
Indemnity by
Cimmarron:
a. Post
Effective Date Liability
Subsequent
to (after) September 1, 2006, Cimmarron assumes all liability for and shall
be
solely
responsible for any and all losses, including without limitation, damages,
claims, expenses, charges,
costs and all other matters (collectively "Losses")
of
any
nature whatsoever in connection
with the ownership, use, operation, maintenance or existence of the Property,
or
any replacement
and/or additional pipeline(s) constructed by Cimmarron on the Property pursuant
to this Agreement, including without limitation, those caused by the actions
or
omissions of Cimmarron
(the "Post
Effective Date Liabilities"). Cimmarron
agrees to hold harmless, defend and
indemnify Westside, its partners, officers, directors, employees, agents,
successors, legal representatives,
and assigns (the "Westside
Group") from
any
and all liabilities, regardless of the presence
or lack of insurance.
b. Breach
of
Representations
and Warranties
Cimmarron
agrees to indemnify Westside against, and hold Westside harmless from, any
loss,
cost, damage or expense (including reasonable attorneys' fees) sustained by
Westside arising
out of or resulting from any inaccuracy in or breach of any of the
representations, warranties
or covenants made by Cimmarron herein, regardless of the presence or lack of
insurance.
5.2
Indemnity
by Westside
Prior
to
(before) September 1, 2006, Westside assumes all liability for and shall be
solely responsible
for any and all losses, including without limitation, damages, claims, expenses,
charges,
costs and all other matters (collectively "Losses")
of
any
nature whatsoever in connection
with the ownership, use, operation, maintenance or existence of the Property
pursuant to
this
Agreement. (the "Pre
Effective Date Liabilities"). Westside
agrees to hold harmless, defend
and indemnify Cimmarron, its partners, officers, directors, employees, agents,
successors, legal
representatives, and assigns (the "Cimmarron
Group") from
any
and all liabilities, regardless
of the presence or lack of insurance.
5.3Indemnification
Procedure
Promptly
after receipt by a Party indemnified under this Agreement (the "Indemnified
Party") of
notice
of the commencement of any action or the written assertion of any claim
or
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406066861v6
demand
covered by an indemnity set forth herein, the Indemnified Party shall, if a
claim in respect
thereof is to be made against any indemnifying Party under this Agreement (the
"Indemnifying
Party"), notify
the Indemnifying Party in writing of the commencement of such action
or
the written assertion thereof; however, the omission so to notify the
Indemnifying Party shall
not
relieve it from any liability which it may otherwise have to the Indemnified
Party, except
to
the extent the Indemnifying Party was actually damaged by such failure to
notify. In case
any
such action, claim or demand shall be brought or asserted against any
Indemnified Party and
it
shall notify the Indemnifying Party of the commencement or assertion thereof,
the Indemnifying
Party shall be entitled to undertake and fully control the defense thereof;
provided, however,
that upon request by the Indemnifying Party, the Indemnified Party may assume
the defense
thereof with counsel reasonably satisfactory to the Indemnifying Party. If
the
Indemnifying
Party undertakes the defense of such action, claim or demand, the Indemnified
Party
shall have the right to participate in such action, claim or demand and to
retain its own counsel,
at the sole expense of the Indemnified Party. Notwithstanding the preceding
sentence, if the
Indemnifying Party and the Indemnified Party are named Parties to any such
action, claim or demand
and representation of both Parties by the same counsel would be inappropriate
due to actual
or
potential differing interests between them, the Indemnifying Party shall be
obligated to pay
the
reasonable attorneys' fees and court costs incurred by the Indemnified Party
in
its separate
defense.
5.4 Environmental
Matters
a. Definitions.
As
used in this section, the following terms shall have the
following
meanings:
Chemical
Substance shall
mean any chemical substance, including, but not limited to,
any
sort of pollutants, contaminants, chemicals, raw materials, inter mediates,
products,
industrial,
or solid substances, materials, wastes, or petroleum products, including crude
oil, natural
gas or any component or refraction thereof.
Claim(s)
shall
mean any demand, claim, notice of noncompliance or violation, Loss,
action, suit, Proceeding, or judgment, formal or informal, in writing or orally,
of any nature whatsoever.
Environmental
Claims shall
mean Claims by any Governmental Authority or person
(including Westside and Cimmarron) for the cleanup or remediation of damage
to,
or damage
originating from, the Property or personal injury resulting from any
Environmental Condition
on or originating from the Property or for situations, circumstances, events
or
incidents on,
from
or originating at any of the Property and arising from or related to the
existence of an Environmental
Condition, the presence of any polluting substance, Chemical Substance or
Hazardous
Substance, or a violation of, or remedial requirement under, any Environmental
Law. ("Environmental
Claims") shall
also mean any claims, demands or actions for any failure to carry out
any
such clean-up or remediation obligations arising hereunder.
Environmental
Condition shall
mean any clean-up or remediation responsibility (i)
caused by environmental pollution, contamination, degradation, damage or injury
at, on, or
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406066861v6
migrating
off of, or underlying any of the Property, or (ii) caused by, related to,
arising from, or in
connection with the generation, handling, use, treatment, storage,
transportation, disposal, discharge, release, or emission of any polluting
substance, or Chemical Substance, whether occurring
prior to or after the Effective Date, known or unknown, at, on, emanating from,
migrating
off of, or underlying any of the Property or (iii) caused by a violation of,
or
a remediation requirement made under, any Environmental Law with regard to
the
Property.
Environmental
Law shall
include, but shall not be limited to, the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA")
43
U.S.C.
6901 et seq., the
Resource Conservation & Recovery Act ("RCRA") 42 U.S.C. 6901, et seq., the
Federal Water
Pollution Xxxxxxx Xxx, 00 X.X.X. §0000 et seq., the Clean Air Act, 42 U.S.C.,
§8401, et seq.,
the
Safe Drinking Water Act, 42 U.S.C. 300 et seq., the Federal Insecticide,
Fungicide & Rodenticide
Act, 7 U.S.C. 136 et seq.; the Toxic Substances Control Act, 15 U.S.C. 2601
et
seq.; the
Oil
Pollution Act of 1990, 33 U.S.C. 2701 et seq., and the regulations there under,
and any other
local, state, and/or federal laws or regulations, whether currently in effect
or
promulgated or amended
in the future, that govern (a) the existence, cleanup and/or remedy of
contamination on or
migrating or transported from the Property; (b) the protection of the
environment from spilled, deposited
or otherwise emplaced contamination on or migrating or transported from the
Property; (c) the control of Oilfield Substances on or migrating or transported
from the Property; or (d) the use,
generation, transport, treatment, removal, recovery, clean-up and/or remedy
of
any polluting substance,
Oilfield Substance or Chemical Substance, including building materials on or
migrating
or transported from the Property.
Governmental
Authority shall
mean any entity of or pertaining to government, including
any federal, state, local, foreign, other governmental or administrative
authority, agency,
court, tribunal, arbitrator, commission, board, bureau, or resources
trustee.
Loss
or
Losses
shall
mean any and all payments, obligations, costs, disbursements,
liabilities, liens, encumbrances, damages, judgments, demands, suits, claims,
assessments,
charges, fines, penalties, or expenses, including reasonable attorney's fees
and
other costs
of
litigation incurred in environmental clean-up or remediation activities, or
personal injuries,
in any manner related to an Environmental Condition.
Proceeding
shall
mean any action, suit, claim, investigation, review or other proceeding,
at law or in equity, before any Governmental Authority, arbitrator, board of
arbitration,
mediator, court of competent jurisdiction, or similar entity.
b. Cimmarron's
Assumption of Environmental Obligations
As
between Westside and Cimmarron, Cimmarron hereby:
1.
Assumes full responsibility for all Environmental Conditions and Environmental
Claims associated with the Property or the transportation, disposal or
arrangement for
the
transportation or disposal of Oilfield Substances or Chemical Substances from
the Property,
including any applicable liabilities under Environmental Laws, which
Environmental Conditions and Environmental Claims arise on or after the
Effective Date; and
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406066861v6
2.
Unconditionally releases and discharges Westside, its subsidiaries, affiliates,
directors, officers, shareholders, employees, representatives, successors and
assigns from
all
Environmental Conditions and Environmental Claims assumed by Cimmarron in
paragraph
5.4.b.1 above,
and agrees to indemnify and defend Westside, its, subsidiaries, affiliates,
directors, officers, shareholders, employees, representatives, successors and
assigns against any Claims and Losses associated with any such Environmental
Conditions or Environmental Claims which arise on or after the Effective
Date.
5.5Tax
Returns
Westside
warrants that, returns (including, without limitation, income, franchise, sales
and
use,
excise, severance, property, gross receipts, payroll and withholding tax returns
and information returns) (all such returns and reports herein referred to
collectively as "Tax
Returns" or
singularly as a "Tax
Return") of
or
relating to any federal, state or local tax (all, together with any
penalties, additions to tax, fines and interest thereon or related thereto,
herein referred to collectively as "Taxes"
or
singularly as "Tax") that are required by applicable law to be filed (taking
into account all extensions) on or before the Effective Date for, by, on behalf
of or with respect to Westside, to the extent directly related to the Property,
have been or will be filed with the
appropriate federal, state and local authorities, and all Taxes shown to be
due
and payable on said
Tax
Returns have been or will be paid in full on or before the Effective Date,
except where the failure to file said Tax Returns or to pay said Taxes would
not
have a material adverse effect on the Property.
5.6Ad
Valorem and Property Taxes.
All
ad
valorem and real property taxes ("Property
Taxes") attributable
to the Property with
respect to the tax period, which includes the tax period in 2006 prior to the
Effective Date, shall be the responsibly of and paid by Cimmarron.
6.Notices:
All
notices required or permitted under this agreement shall be in writing and
shall
be delivered
personally, or sent by facsimile, or sent by United States mail, postage
prepaid, as
follows:
If
to
Westside:
Westside
Energy Production Company, LP Attention: Xxxxx Xxxxx
0000
Xxxxxx Xxxxx Xxxx., Xxxxx 0000 Xxxxxx,
Xxxxx 00000
Fax:
(000) 000-0000
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406066861v6
If
to
Cimmarron:
Cimmarron
Gathering, LP
Attention:
Chief Operating Officer X.X. Xxx 0000
Xxxxxxxxxxx,
Xxxxx 00000-0000 Fax:
(000) 000-0000
7. Assignment:
This
Agreement, the rights hereunder and the Property herein may be assigned,
conveyed or otherwise transferred as an entirety by Cimmarron without the
express written consent of
Westside but shall be subject to any preferential purchase rights burdening
the
Property.
All Assignment and Xxxx of Sale documents provided for hereunder and any
subsequently approved assignments or other conveyances shall be expressly made
subject to the terms and provisions of this Agreement.
8. Cooperation
8.1Intent
of
Agreement:
The
Parties shall offer each other reasonable further assistance in carrying out
the
intent of
this
Agreement, including, but not limited to, execution of any additional documents
necessary to
effectuate the intent of this Agreement. In the event that any part of the
Property being assigned
and conveyed to Cimmarron by Westside hereunder has not been effectively
assigned to Cimmarron
by Westside, Westside, without incurring liability of any kind shall assign
or
convey such
part
of the Property directly to Cimmarron.
9.Miscellaneous
Provisions:
9.1
The
laws
of the state of Texas govern this Agreement as to the Property, without
regard
to
its conflicts of law. In the event of a dispute as to the interpretation and/or
performance of
Agreement, the laws of the State of Texas, without regard to its conflicts
of
law principles, shall
govern.
9.2
Each
Party shall be solely responsible for its own expenses, incurred by it in
connection with this transaction, and neither Party shall be entitled to any
reimbursement for such
expenses from the other Party.
9.3
No
waiver
by either Party hereto of any default of the other Party under this Agreement
shall operate as a waiver of any subsequent default, whether of a like or a
different character.
9.4
Each
Party hereto represents and warrants to each other Party that the person
signing
this Agreement on its behalf is duly authorized to enter into this Agreement
and
that all necessary resolutions have been or will be obtained and
approved.
HOU
406066861v6
9.5
In
the
event any provision set forth in this Agreement, or the application thereof,
is
held
invalid, such invalidity shall not affect any other provision or application,
which can be given effect without the invalid provision or application. To
this
end, the provisions set forth in this Agreement are declared to be
severable.
9.6 The
terms
and conditions hereof shall extend to and be binding on the
respective
successors
and permitted assigns of the Parties hereto.
9.7
The
provisions of this Agreement shall survive the Closing of the transaction
contemplated
herein and the execution and delivery of any assignment and xxxx of sale or
similar instrument
delivered in connection with this Agreement.
9.8 The
obligations of Westside pursuant to this Agreement are expressly
contingent
upon
the
execution and delivery of the Stipulation.
9.9 This
Agreement may be executed in multiple counterparts, each of which shall
be
deemed
an
original, and all of which shall be deemed to be one and the same
agreement.
9.10
This
document and the attachments related thereto contain the entire agreement by
and
between Westside and Cimmarron regarding the subject matter hereof. No other
representations
made between Westside and Cimmarron, whether written or oral, have been
relied
upon by any Party in the execution hereof. Westside, Cimmarron represent and
warrant that
the
execution of this Agreement has not been induced by any promise, representation
or warranty
other than as expressly contained herein. Westside and Cimmarron agree that
they
shall deal
fairly and in good faith with each other.
Cimmarron
shall be responsible for and shall bear the cost of recording any instrument
contemplated
by this vying the Property. Upon the receipt of each recorded instrument
Cimmarron
shall promptly forward a copy of each recorded document to
Westside.
10.Exhibits
The
Exhibits listed below are attached to this Agreement and by this reference
are
fully incorporated herein.
|
Exhibit
A Exhibit B Exhibit
C Exhibit D Exhibit E Exhibit
F
|
Form
of Assignment and Xxxx of Sale Westside Non-Foreign Affidavit Westside
Incumbency Certificate Westside Certificate of Resolutions Westside
Officer's Certificate
Form
of Stipulation of Ownership
|
HOU
406066861v6
11.Conflicts
In
the
event a conflict between a provision contained within the main body of this
Agreement
and a provision contained within any exhibits attached hereto, the provisions
in
the
main.body shall control.
12.Purchase
Price Allocation
The
Purchase shall be allocated as follows: Easements fifty percent (50%), Pipelines
fifty percent
(50%).
HOU
406066861v6
11.Conflicts
IN
WITNESS WHEREOF, this Agreement is executed on November 9, 2006, to be
effective
as of the Effective Date.
WESTSIDE
ENERGY PRODUCTION COMPANY, LP, a
Texas limited partnership
By:Westside
Energy GP, L.L.C.,
a
Texas
limited liability company, its general partner
EXECUTION
VERSION
[Missing
Graphic Reference]
By:
EXECUTION
VERSION
CIMMARRON
GATHERING, LP, a
Texas limited partnership
By:Cimmarron
Gathering, GP, LLC,
a
Texas
limited liability company, its General Partner
EXECUTION
VERSION
|
By:
|
[Missing
Graphic Reference]
|
|
EXECUTION
VERSION
Xxxx
X.xxx,
Mana
/Partner
EXECUTION
VERSION
RECORDING
REQUESTED BY: Cimmarron
Gathering, LP
do
Xxxxx Xxxxxxxxx
00000
Xxxxxxxxx Xxxx
Xxxxxx,
Xxxxxxxx 00000
WHEN
RECORDED MAIL TO: Same as above
SPACE
ABOVE FOR RECORDER'S USE
UNDIVIDED
INTEREST ASSIGNMENT AND XXXX OF SALE
Westside
Energy Production Company, LP, a Texas limited partnership ("Westside"),
having
a
place of business at 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000
hereby assigns to Cimmarron Gathering, LP, a Texas limited partnership
("Buyer"), having a place of business
at X.X. Xxx 0000, Xxxxxxxxxxx, Xxxxx 00000-0000, one hundred percent (100%)
of
Seller's
right, title and interest (such interest being an undivided 16.333% interest)
in
and to the following ( the "Property"):
All
pipeline(s) and all meters, valves, fittings, pumps, cathodic protection
equipment, locks, rights-of-way
markers, and miscellaneous equipment appurtenant to or associated with the
pipeline(s)
described on Exhibit
A attached
to and made a part of this Assignment along with the easements,
real property, rights-of-way, surface lease agreements, permits, licenses,
leases, prescriptive
rights, servitudes, and other rights of access and agreements listed on
Exhibit
A to
the
extent that the same are legally assignable;
NOW
THEREFORE, in consideration of the mutual promises contained herein, the
benefits
to be derived by Westside and BUYER, and other good and valuable consideration,
the receipt
and sufficiency of which are hereby acknowledged, Westside and BUYER agree
as
follows:
Westside
does hereby absolutely and unconditionally bargain, convey, sell, transfer,
release,
grant, set over, assign, confirm and deliver to BUYER, its successors and
assigns, and BUYER accepts, an undivided One Hundred percent (100.00%) of
Westside's right, title, and interest
in and to the Property, such interest being an undivided 16.333% in and to
the
Property.
1. BUYER
agrees to be bound by the terms, conditions, and covenants of the assigned
Property subsequent to the Effective Date.
2. Westside
hereby covenants with BUYER that Westside is the lawful owner of the
Property and has good right to convey the same, that to Westside's knowledge
the
Property are
free
of all liens and encumbrances and Westside will warrant and forever defend
all
and singular
the Westside Property unto BUYER, its successors and assigns, against every
person who
is
lawfully claiming or to claim the same or any part thereof, by through or under
Westside
but not otherwise.
HOU
406067224v3
EXECUTION
VERSION
3. This
Assignment shall be governed by and construed in accordance with
the
laws
of
the State of Texas.
4. The
Property are assigned by Westside to BUYER "as is, where is, and with all
faults,"
without any warranties or representations of any type or nature whatsoever
and
releases any
and
all representations and warranties, including but not limited to,
representations and warranties as to the Westside Property value, quality,
condition, merchantability or fitness for any particular purpose.
5. This
Assignment is executed, delivered, and accepted pursuant to and subject to
the
terms
and conditions of that certain Purchase and Sale Agreement (the "Agreement")
by
and
between Westside and Buyer dated November 9, 2006 and effective as of September
1, 2006,
and
the provisions of the Agreement shall survive the execution, deliverance, and
acceptance of this Assignment.
6. This
document and the attachments related thereto contain the entire agreement
by
and
between Westside and BUYER regarding the subject matter hereof. No other
representations
made between Westside and BUYER, whether written or oral, have been relied
upon
by
any Party in the execution hereof. Westside and BUYER acknowledge and warrant
that
the
execution of this Agreement has not been induced by any promise, representation
or warranty
other than as expressly contained herein. The Parties consent and agree that
they shall
deal fairly and in good faith with each other.
7. The
terms
and conditions hereof shall extend to and be binding on the
respective
successors
and permitted assigns of the Parties hereto.
8. In
the
event any provision set forth in this Agreement, or the application thereof,
is
held
invalid, such invalidity shall not affect any other provision or application,
which can be given
effect without the invalid provision or application. To this end, the provisions
set forth in
this
Agreement are declared to be severable.
9.
This
Assignment may be executed in several original counterparts. Each counterpart
shall be deemed to be an original for all purposes, and all counterparts shall
together constitute
but one and the same instrument, provided,
however, in
making
proof of this Assignment, it shall only be necessary to produce one counterpart
hereof, executed by the parties hereto,
and it shall not be necessary to produce nor to account for any other
counterpart. To the extent
permitted under the laws of any jurisdiction where this Assignment is to be
filed, there may
be
attached to the counterpart of this Assignment to be filed in such jurisdiction
an Exhibit
A
which
shall contain only the legal description of the of the Property in such
jurisdiction.
TO
HAVE
AND TO HOLD Westside's undivided 16.333% interest in and to the Property,
subject to the terms, exceptions and other provisions herein stated, together
with all and
singular the rights and appurtenances thereunto and in anywise belonging unto
BUYER, its successors and assigns, forever.
[Signatures
appear on the following page(s)[
HOU
406067224v3
EXECUTION
VERSION
IN
WITNESS WHEREOF, the Parties to this Assignment and Xxxx of Sale have executed
this
Assignment and Xxxx of Sale through their authorized
representatives.
Executed
this 9th day of November, 2006, but effective as of September 1, 2006 at 10:00
a.m.
CT.
Westside
Energy Production Company, LP, a
Texas limited partnership
By:
Westside Energy GP, L.L.C.,
a
Texas limited liability company, its
general partner
By:
Xxxxxxx
X. Manner, Manager
SIGNATURE
PAGE TO ASSIGNMENT AND XXXX OF SALE
Cimmarron
Gathering, LP,
By: Cimmarron
Gathering, GP, LLC,
its
General Partner
By:
Name:
Title:
SIGNATURE
PAGE TO ASSIGNMENT AND XXXX OF SALE
ACKNOWLEDGEMENT
— WESTSIDE ENERGY PRODUCTION COMPANY, LP
State
of
Texas§
§
County
of
Tarrant§
I,
,
a
Notary Public in and for the county and state
aforesaid,
DO HEREBY CERTIFY that ,of
Westside Energy GP,
L.L.C.,
a
Texas limited liability company and general partner of Westside Energy
Production Company,
LP, a Texas limited partnership, who personally known to me to be the person
whose name
is
subscribed to the foregoing instrument appeared before me this day in person
and
acknowledged that he signed, sealed and delivered the said instrument as his
free and voluntary act
in
such capacity as the free and voluntary act of said limited liability company
on
behalf of said
partnership for the uses and purposes therein set forth.
Given
under my hand and notarial seal, this 9th day of November, 2006.
Name:
My
commission expires
ACKNOWLEDGEMENT
PAGE TO ASSIGNMENT AND XXXX OF SALE
ACKNOWLEDGEMENT
— CIMMARRON GATHERING, LP
State
of
Texas County of
,
a
Notary
Public in and for the county and state
aforesaid,
DO HEREBY CERTIFY that,
of
Cimmarron Gathering, LP, who is
personally
known to me to be the person whose name is subscribed to the foregoing
instrument as
such
President, appeared before me this day in person and acknowledged that he
signed, sealed
and delivered the said instrument as his free and voluntary act as such
President and as the free
and
voluntary act of said limited partnership for the uses and purposes therein
set
forth.
Given
under my hand and notarial seal, this 9th day of November, 2006.
Name:
My
commission expires
ACKNOWLEDGEMENT
PAGE TO ASSIGNMENT AND XXXX OF SALE
Westside
Non-Foreign Affidavit
HOU
406066861v6
Exhibit
D
NON-FOREIGN
AFFIDAVIT
HOU
406066861v6
Exhibit
D
STATE
OF
TEXAS COUNTY OF DALLAS
Section
1445 of the Internal Revenue Code provides that a transferee of a United States
real
property interest must withhold tax if the transferor is a foreign person.
To
infoim transferee, Cimmarron
Gathering, a Texas limited liability company, that withholding of tax is not
required upon
the
disposition of a United States real property interest by Westside Energy
Corporation, LP
a
Texas limited liability company, the undersigned hereby certifies the following
on behalf of Westside
Energy Production Company, LP.
| 1. |
Westside
Energy Production Company, LP is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined
in the Internal Revenue Code and Income Tax
Regulations);
|
| 2. |
Westside
Energy Production Company, LP has the following United States
Employer Identification Number: 00-0000000.;
and
|
3. Westside
Energy Production Company, LP has a business address of 0000
Xxxxxx
Xxxxx Xxxx., Xxxxx 0000, Xxxxxx, XX 00000.
Westside
Energy Production Company, LP understands that this certification may be
disclosed
to the Internal Revenue Service by transferee and any false statement contained
herein may
be
punishable by fine, imprisonment or both. Under penalties of perjury, I declare
that I have
examined this certification and to the best of my knowledge and belief it is
true, correct and complete.
WESTSIDE
ENERGY PRODUCTION COMPANY,
LP,
a
Texas limited partnership
By:Westside
Energy GP, L.L.C.,
a
Texas
limited liability company, its
general partner
By:
Xxxxxxx
X. Manner, Manager
Sworn
to
and subscribed before me this 9th day of November, 2006, in the state and
county
aforesaid.
Notary
Public-State of Texas (Notary Seal)
My
Commission Expires:
HOU
406066861v6
Exhibit
D
Westside
Incumbency Certificate
HOU
406066861v6
Exhibit
D
Exhibit
"C"
Westside
Energy Production Company, LP
INCUMBENCY
CERTIFICATE
I,
Xxxxx
X.
Xxxxxx, Corporate Secretary of Westside Energy GP, LLC, a Texas limited
liability company and general partner ("General
Partner") of
Westside Energy Production Company, LP, a Texas limited liability partnership,
hereby certify as follows:
The
following Individual is presently serving Westside Energy Production Company,
LP
in the capacity
set opposite his name and that the specimen signature set forth opposite such
name listed
below is the valid and genuine signature of such person:
|
Name:
|
Position:
Member
of General
Partner
|
Signature:
|
|
|
Xxxxxxx
X. Manner
|
|||
IN
WITNESS WHEREOF, I have executed this certificate thisday
of
November
2006.
By:
Xxxxx
X.
Xxxxxx, Secretary
HOU
406066861v6
Exhibit
D
Westside
Certificate of Resolutions
HOU
406066861v6
Exhibit
D
WRITTEN
CONSENT
OF
THE GENERAL PARTNER
OF
WESTSIDE
ENERGY PRODUCTION COMPANY, LP
November
9, 2006
The
undersigned, being the general partner ("General
Partner") of
Westside Energy Production
Company, LP, a Texas limited partnership
(the
"Partnership"),
does
hereby consent to and adopt the following recitals and resolutions, and the
actions therein authorized as the act of
the
Partnership's General Partner by written consent, such consent to have the
same
force and effect
as
a vote of the General Partner at a duly called and held meeting of the
Partnership's General Partner:
Purchase
and Sale Transaction
WHEREAS,
it has been proposed that the Partnership enter into that certain Purchase
and
Sale
Agreement (the "Agreement")
by
and
between the Partnership and Cimmarron Gathering, LP,
a
Texas limited partnership (the "Purchaser"),
pursuant
to which the Partnership will sell to Purchaser its ownership interest in the
Tri-County Gas Gathering System;
WHEREAS,
the General Partner has reviewed the terms and conditions of the Agreement;
and
WHEREAS,
the General Partner believes that the Partnership's entry into the Agreement
and
consummation of the transactions contemplated thereby are advisable and in
the
Partnership's
best interests.
Approval
of
Transaction
Generally
NOW,
THEREFORE, BE IT RESOLVED, that the form, terms and conditions of the
Agreement
are hereby in all respects approved, ratified, confirmed, and the consummation
of the transactions
contemplated thereby, be and they hereby are in all respects approved, together
with such
changes to such documents as the General Partner or any officer of the
Partnership selected by the General Partner (for the purposes of these
resolutions, hereinafter referred to as the "Authorized
Parties") shall
approve, such approval to be conclusively established by any such Authorized
Party's execution and delivery of the Agreement on the Closing Date (as defined
in the
Agreement), and any and all action to such ends heretofore taken is hereby
in
all respects approved, ratified and confirmed;
RESOLVED
FURTHER, that any one or more of the Partnership's Authorized Parties
be,
and
they hereby are authorized, empowered and directed, for, in the name and on
behalf of the
Partnership to negotiate the final terms of the Agreement and to make such
amendments, modifications, and deviations as such Authorized Parties deem
necessary;
406067323_
Exhibit
"D"
RESOLVED
FURTHER, that
the
Partnership is authorized to perform any of its obligations
under, and consummate the transactions contemplated by, the
Agreement;
RESOLVED
FURTHER, that
the
Authorized Parties of the Partnership be and the same hereby
are, authorized to execute on behalf of the Partnership, upon closing, any
and
all such certificates,
resolutions, assignments, affidavits and all other documents as may be required
in order
to
complete and effectuate the transactions contemplated by the Agreement on behalf
of the
Partnership;
RESOLVED
FURTHER, that
the
Authorized Parties are hereby authorized, empowered and
directed to perform all such acts and things, and to execute any and all such
agreements, documents or instruments necessary to certify or attest, on behalf
of the Partnership, as to any factual matters, respecting the Partnership,
as to
the accuracy and completeness of these resolutions, as to the genuineness of
any
signature of any officer of the Partnership or as to any other matter regarding
the execution, delivery and performance of the Agreement and the transactions
contemplated therein, in each case known to the Authorized Parties;
and
Ratification
of Prior Acts
RESOLVED
FURTHER, that
any
lawful act heretofore taken by any Authorized Party of the
Partnership in connection with the matters contemplated in the foregoing
resolutions be, and it
hereby
is in all respects, approved, adopted ratified and confirmed as an act of the
Partnership.
[SIGNATURE
APPEARS ON FOLLOWING PAGE]
406067323_
IN
WITNESS WHEREOF, the undersigned, being the General Partner of the Partnership,
hereby
consents to all of the foregoing as of November 9, 2006.
WESTSIDE
ENERGY GP, L.L.C., a
Texas
limited liability company
By:
Xxxxxxx
X. Manner, Manager
Westside
Officer's Certificate
HOU
406066861v6
Exhibit
F
Exhibit
"E"
Attached
to and made a part of that certain Purchase and Sale Agreement by and
between
Westside
and Cimmarron, effective September 1, 2006
Westside
Energy Production Company, LP
OFFICER'S
CERTIFICATE
This
Certificate is given pursuant to the Agreement (as defined below).
I,
Xxxxxxx X. Manner, Manager of Westside Energy GP, L.L.C., a Texas limited
liability company,
general partner of Westside Energy Production Company, LP, a Texas limited
partnership
(the "Company"),
DO
HEREBY
CERTIFY, in connection with the Purchase and Sale Agreement (the "Agreement"),
among
the
Company, and Cimmarron Gathering, LP, effective
September 1, 2006 (terms not otherwise defined herein are used herein as defined
in Amendment), that:
1. I
am the
duly elected, qualified and acting Manager of the Company and, as such, have
access to the Company's records, have examined such records, agreements and
other documents
as I have deemed necessary for purposes of giving this certificate and am
familiar with
the
matters therein contained and herein certified.
2. The
conditions contained in Sections 3.1 and 3.2 of the Agreement have been
fulfilled.
IN
WITNESS WHEREOF, I have executed this certificate this 9th
day
of
November,
2006.
Westside
Energy Production Company, LP, a
Texas limited partnership
By:Westside
Energy GP, L.L.C.
a
Texas
limited liability company, its General Partner
By:
Xxxxxxx
X. Manner, Manager
HOU
406066861v6
Exhibit
F
Form
of
Stipulation of Ownership
HOU
406066861v6
Exhibit
F
EXECUTION
VERSION
STIPULATION
OF OWNERSHIP
This
Stipulation of Ownership ("Stipulation") is effective as of 10:00 a.m., Central
Time,
on
September 1, 2006 (the "Effective Date"), by and between CCTX Gathering,
LP,
a
Texas limited partnership, whose address is P. 0. Xxx 0000, Xxxx Xxxxxxx,
Xxxxxxxxx
00000 ("CCTX"), Benco Operating, Inc., a Texas corporation, whose address
is
0000
Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000 ("Benco"), Westside Energy Production
Company, LP, a Texas limited partnership, whose address is 0000 Xxxxxx
Xxxxx
Xxxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000 ("Westside"), and Cimmarron Gathering,
LP,
a
Texas limited partnership, whose address is X.X. Xxx 0000, Xxxxxxxxxxx, Xxxxx
00000-0000
("Cimmarron"). CCTX, Benco, Westside and Cimmarron are sometimes hereinafter
referred to individually as a "Party" or collectively as "the
Parties".
WITNESSETH:
WHEREAS,
The Tri-County Gas Gathering System ("TCGGS") is a natural gas gathering system
owned by the Parties as hereinafter more fully set out, through which
natural
gas is gathered and delivered to other transporters located in Xxxxx, Xxxxxxxx
and
Xxxx
County, Texas; and
WHEREAS,
TCGGS is comprised of, but not limited to: certain real and personal
property
consisting of, but not limited to: easements, rights of way, surface leases,
pipelines,
fittings, launchers, receivers, tanks, separators, meters, valves, cathodic
protection
equipment, CO2
Plants,
compressors, heaters, dehydration units and other above
and
below ground facilities necessary for TCGGS operations, including but not
limited
to the properties and assets described in Exhibit A attached hereto and
incorporated
herein (the "TCGGS Property"); and
WHEREAS,
Effective January 1, 2005, TCGGS was established and the undivided
TCGGS ownership interest was established by cross-assignments as follows:
Cimmarron
33.334%; Benco 33.333% and CCTX 33.333%; and
WHEREAS,
The methods, processes, and procedures related to the construction
and operation of TCGGS is governed by that certain AGREEMENT FOR THE
CONSTRUCTION AND OPERATION OF THE TRI-COUNTY GAS GATHERING SYSTEM
(the "Operating Agreement"), by and between Cimmarron Transportation,
LLC,
("Cimmarron Transportation," the corporate predecessor of Cimmarron), Benco
Operating,
Inc. ("Benco") and CCTX, dated effective January 1, 2005; and
WHEREAS,
CCTX is the successor in interest of Central Crude, Inc., which, prior
to
the
establishment of the TCGGS, effective December 1, 2004, by Assignment and
Xxxx
of
Sale to EBS Oil & Gas Partners Production Company, LP, ("EBS," the corporate
predecessor
of Westside) as Buyer, assigned a forty nine percent (49%) interest in the
Wise
County Gathering System ("WCGGS") to EBS; and
WHEREAS,
CCTX and EBS contemporaneously entered into that certain Operating
Agreement for the Wise County Gas Gathering System dated effective December
1, 2004 ("WCGGS Agreement"); and
HOU
406067316v1
WHEREAS,
pursuant to the Operating Agreement, CCTX, with the consent of Westside,
contributed the assets comprising the WCGGS to the establishment of the TCGGS;
and
WHEREAS,
By agreement of the Parties, including Westside, Westside's 49% of 33.333%
interest was represented by CCTX in such transactions, but such ownership is
not
properly reflected in the official public records of the counties in which
the
TCGGS Property is located; and
WHEREAS,
Effective June 1, 2005 Cimmarron Transportation reorganized and its
interest in the TCGGS Property is now owned by Cimmarron; and
NOW,
THEREFORE, in consideration of the premises, the mutual covenants set
forth
below, and for other valuable and mutually sufficient consideration received,
CCTX,
Westside, Benco and Cimmarron do hereby agree and stipulate as
follows:
1. Stipulation
of Ownership
The
Parties agree and stipulate that the TCGGS Property and all assets and
properties
comprising same are owned, as of September 1, 2006, at 7:00 a.m. ("the
Effective
Date of this Stipulation") in the following undivided percentages:
|
Cimmarron
|
33.334%
|
|
Benco
|
33.333%
|
|
CCTX
|
17.000%
|
|
Westside
|
16.333%
|
|
Total
|
100.000%
|
In
order
to carry out the terms of this Agreement, the Parties hereby assign, transfer
and
convey to each other the properties and assets described in Exhibit A, in the
undivided
percentages shown above. Title to such interests is warranted by, through
and
under
each of the parties, but not otherwise. Any and all other warranties, express,
implied or statutory, are hereby disclaimed.
NO
PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE; AND
THE TCGGS PROPERTY IS ASSIGNED "AS IS", "WHERE IS", AND WITH ALL
FAULTS
OR DEFECTS AS OF THE EFFECTIVE DATE. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND/OR
IN THE TCGGS AGREEMENT, NO PARTY SHALL BE LIABLE, TO ANY OTHER PARTY TO ANY
EXTENT WHATSOEVER, FOR THE QUALITY,
CONDITION, OPERATION OR PERFORMANCE OF THE TCGGS PROPERTY.
HOU
406067316v1
The
Parties hereby consent to the transfer to Cimmarron of Westside's undivided
ownership
percentage in the TCGGS, shown above, effective September 1, 2006.
3. Termination
of WCGGS Agreement — Waiver of CCTX's Pref Right
Effective
as of the Effective Date of this Stipulation, the WCGGS Agreement is
hereby
terminated and of no further force and effect. CCTX hereby waives its
preferential
right to purchase the interest of Westside in the WCGGS, pursuant to
Article
VII.F. of the WCGGS Agreement. Henceforth the sole agreement of the Parties
concerning
the operation of the TCGGS shall be the Operating Agreement.
4. Miscellaneous
Each
Party hereto represents and warrants to each other Party that the person
signing
this Agreement on its behalf is duly authorized to enter into this Agreement
and
that
all
necessary resolutions have been or will be obtained and approved.
The
terms
and conditions hereof shall extend to and be binding on the respective
successors and permitted assigns of the Parties hereto.
.This
Stipulation may be executed in several original counterparts. Each counterpart
shall be deemed to be an original for all purposes, and all counterparts shall
together constitute but one and the same instrument, provided,
however, in
making
proof of this Stipulation, it shall only be necessary to produce one counterpart
hereof, executed by the parties hereto, and it shall not be necessary to produce
nor to account
for any other counterpart. To the extent permitted under the laws of any
jurisdiction
where this Stipulation is to be filed, there may be attached to the counterpart
of
this
Stipulation to be filed in such jurisdiction an Exhibit A which shall contain
only the legal
description of the of the Properties in such jurisdiction.
IN
WITNESS WHEREOF, this Agreement is effective as of September 1,
2006.
[Remainder
of page left blank intentionally. Signatures
appear on the following pages.]
HOU
406067316v1
WESTSIDE
ENERGY PRODUCTION COMPANY, LP, a
Texas limited partnership
By
Westside Energy GP, L.L.C.,
Its
General Partner
By:
Xxxxxxx
X. Manner, Manager
STATE
OF
TEXAS COUNTY
OF
DALLAS
This
instrument was acknowledged on
November 9, 2006,by
,
the
of,a
,
General
Partner of Westside Energy Production Company, LP, a Texas
limited
partnership, on behalf of said limited partnership.
Notary
Public in and for The
State
of Texas
My
Commission expires:Notary's
Printed Name:
CIMMARRON
GATHERING, LP,
a
Texas limited
partnership
By
CIMMARRON GATHERING, GP, LLC, a
Texas limited liability company
Its
General
Partner
By:
Name:Xxxx
X. Xxxxxxx Title:
Manager/Partner
STATE
OF
TEXAS COUNTY OF DALLAS
This
instrument was acknowledged on
November,
2006,
by
,
the
of
Cimmarron Gathering, GP, LLC,
a
Texas
limited liability company, General Partner of Cimmarron Gathering, LP, a
Texas
limited partnership, on behalf of said limited partnership.
Notary
Public in and for The
State
of Texas
My
Commission expires:Notary's
Printed Name:
HOU
406067316v1
CC
TEXAS GATHERING, LP By CC Texas Operating, LLC Its General
Partner
By:
Name:Xxxxxx
X. Xxxxxx Title:
President
STATE
OF
COUNTY/PARISH
OF
This
instrument was acknowledged on November , 2006, by Xxxxxx X. Xxxxxx,
the President of CC Texas Operating, LLC, a Texas limited liability company,
General Partner of CC Texas Gathering, LP, a Texas limited partnership, on
behalf of said limited partnership.
Notary
Public in and for The State of Texas
My
Commission expires:Notary's
Printed Name:
HOU
406067316v1
BENCO
OPERATING, INC.,
a
Texas corporation
By:
Name:
Title:
STATE
OF
TEXAS COUNTY OF
This
instrument was acknowledged on November,
2006,
by
the
President of Benco Operating, Inc., a Texas corporation, on
behalf
of
said corporation.
Notary
Public in and for The
State
of Texas
My
Commission expires:Notary's
Printed Name:
HOU
406067316v1
Exhibit
A
HOU
406067316v1
Description
of TCGGS Property
