1
EXHIBIT 1.2
DEALER MANAGER AGREEMENT
Xxxxxxxxx Energy 98 Drilling Program
_______________, 0000
Xxxxxxxxx Securities, Inc.
0000 X. Xxxxxxxx
Xxxxx, Xxxxx 00000
Gentlemen:
Xxxxxxxxx Development Corporation, a Delaware corporation ("MD"), is or
proposes to be the sole managing general partner (in such capacity the "Managing
Partner") of a limited partnership (the "Partnership") formed pursuant to the
Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"). MD
intends to name the Partnership as follows: Xxxxxxxxx Energy Partners 98-A, L.P.
The Partnership will participate in a program, governed by a Drilling Program
Agreement (the "Program Agreement") among Xxxxxxxxx Oil Company, a Delaware
corporation ("MOC"), MD and the Partnership, the primary purpose of which will
be to drill Developmental Xxxxx (as such term is defined in the Prospectus
referred to below).
On behalf of the Partnership and MD, a Registration Statement on Form
S-1 (Registration No. ) dated February , 1998, relating to the offer and sale of
the Interests (hereinafter defined) was filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"). On , 1998, MD filed with the Commission on behalf of the Partnership
Amendment No. 1 to the Registration Statement. The Registration Statement was
declared effective by the Commission on , 1998. MD, the Partnership and the
Interests are described in the Prospectus dated , 1998 (the "Prospectus") that
forms a part of the Registration Statement. As used in this Soliciting Dealer
Agreement (this "Agreement"), the terms "Prospectus" and "Registration
Statement" refer solely to the Prospectus and Registration Statement, as
amended, described above, except that (i) from and after the date on which any
post-effective amendment to the Registration Statement is declared effective by
the Commission, the term "Registration Statement" shall refer to the
Registration Statement as amended by that post-effective amendment, and the term
"Prospectus" shall refer to the Prospectus then forming a part of the
Registration Statement, and (ii) if the Prospectus filed by MD pursuant to Rule
424(b) or (c) promulgated by the Commission under the Act differs from the
Prospectus on file with the Commission at the time the Registration Statement or
any post-effective amendment thereto shall have become effective, the term
"Prospectus" shall refer to the Prospectus filed pursuant thereto from and after
the date on which it was filed. Terms defined in the Prospectus and not
otherwise defined herein will have the meanings set forth in the Prospectus.
MD desires to raise a minimum of $1,000,000 and a maximum of
$10,000,000 in capital for the Partnership by the sale of up to 1,000
($1,000,000) limited partner interests (the "Limited Partner Interests") and up
to 9,000 ($9,000,000) general partner interests (the "General Partner
Interests") in the Partnership (the Limited Partner Interests and the General
Partner Interests are collectively referred to as the "Interests"). The
Interests will be offered in $1,000 increments, with a minimum purchase of five
Interests ($5,000).
The following are the terms on which the Managing Partner, on behalf of
the Partnership, appoints you exclusive agent ("Dealer Manager") to form a group
of National Association of Securities Dealers, Inc. member firms to solicit
subscribers for the purchase of interests:
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Section 1. Appointment as Dealer Manager. On the basis of the
representations, warranties and covenants contained in this Agreement, but
subject to the terms and conditions set forth herein:
(a) The Managing Partner hereby appoints you during the Offering Period
(as defined below) as exclusive agent to form and manage a group of securities
brokers or dealers selected by you, each of which shall be registered under the
Securities Exchange Act of 1934 (the "Soliciting Dealers") and be a member in
good standing with the National Association of Securities Dealers, Inc. to
assist you in the distribution and sale of Interests. The "Offering Period" (as
such term is used in this Agreement) will commence on or about the date on which
the Registration Statement is declared effective and will end no later than
December 31, 1998. MD has the right in its sole and absolute discretion to
terminate the offering of Interests and end the Offering Period at any time.
(b) The Managing Partner hereby gives you, as Dealer Manager, the right
to solicit subscriptions of the Interests directly only in states where you have
registered as a broker-dealer under such states' blue sky laws. Such
subscriptions shall be evidenced by execution by the prospective investor of a
Subscription Agreement. It is understood that no sale shall be regarded as
effective unless and until accepted by the Managing Partner on behalf of the
Partnership. The Managing Partner reserves the right in its sole discretion to
refuse to sell a Interest to any person at any time for any reason, without
liability to it or to you.
(c) You hereby accept appointment as a Dealer Manager and agree on the
terms and conditions set forth in this Agreement to use your reasonable efforts
to solicit subscriptions for the Interests during the Offering Period and until
the earlier of (i) the termination of the Offering Period or (ii) the Closing
(as hereinafter defined). Neither your acceptance of that appointment nor this
Agreement shall constitute you and MD or the Partnership as an association,
partnership, unincorporated business or other separate entity.
(d) The price at which the Interests are to be offered shall be $1,000
per Interest payable upon the terms set forth in the Prospectus: provided,
however, that the minimum purchase shall be five (5) Interests for a
subscription price of $5,000.
(e) If an offering for Interests in the Partnership is commenced and
subscriptions funds of $1,000,000 or more are not received by the termination of
the Offering Period with respect to Interests in the Partnership, all
subscription funds received by the termination of the Offering Period with
respect to Interests in the Partnership shall be returned in full to the
subscribers, together with any interest earned thereon, if any (as provided in
the Prospectus), and this Agreement will terminate without obligation on your
part or on the part of MD, except that (a) you will promptly, upon notice,
transmit to MD any funds advanced to you by MD of any sales commissions and due
diligence fees paid pursuant to Section 6(b) hereof and which have not been
reallowed to a Soliciting Dealer, and (b) the indemnification and contribution
provisions of Section 9 hereof shall continue after such termination of this
Agreement.
Section 2. Representations and Warranties of MD. MD, in its individual
capacity and in its capacity as Managing Partner, hereby represents and warrants
to you that:
(a) In the name and on behalf of the Partnership, MD has prepared and
filed with the Commission the Registration Statement (including the Prospectus)
for the registration of the offering and sale of the Interests under the Act.
The Registration Statement has become and is effective under the Act. Copies of
the Registration Statement and the Prospectus have been or will be delivered to
you.
(b) On the Closing Date (as hereinafter defined) for the sale of
Interests, the Partnership will be a limited partnership duly formed and validly
existing under the laws of the State of Delaware and will be duly qualified or
registered as a foreign limited partnership or otherwise qualified as a limited
partnership in each jurisdiction in which
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the nature of the activities conducted by it or the nature of the assets owned
by it make such qualification necessary (except where the failure to so qualify
or register would not have a material adverse effect on the Partnership or the
rights or liabilities of its Investor Partners). In addition, the Partnership
shall have full and adequate partnership power and partnership authority to
enter into and perform this Agreement and the Program Agreement and to own its
properties and to conduct its business as proposed in the Prospectus.
(c) MD is, and at all times through the Closing Date will be, a
corporation, validly existing and in good standing under the laws of the State
of Delaware with full and adequate corporate power and corporate authority to
enter into and perform this Agreement and the Agreement of Partnership and to
own its properties and to conduct its business as presently conducted and as
proposed in the Prospectus to be conducted.
(d) Each subscriber for Limited Partner Interests will become a Limited
Partner of the Partnership entitled to all the rights of a Limited Partner under
the Agreement of Partnership for the Partnership and the Delaware Act upon (i)
payment of the consideration for those Limited Partner Interests specified in
that subscriber's Subscription Agreement and (ii) acceptance by the Managing
Partner of that subscriber as a Limited Partner. Each subscriber for General
Partnership Interests will become a General Partner of the Partnership entitled
to all the rights of a General Partner under the Agreement of Partnership for
the Partnership and the Delaware Act upon (i) payment of the consideration for
those General Partner Interests specified in that subscriber's Subscription
Agreement and (ii) acceptance by the Managing Partner of that subscriber as a
General Partner. The Interests, when sold and paid for as contemplated by the
Prospectus, will represent validly authorized and duly issued Interests and
those Interests will conform in all material respects to the statements relating
thereto contained in the Prospectus, including the Form of Agreement of
Partnership attached as Exhibit A thereto.
(e) This Agreement has been duly and validly authorized by MD. MD has
duly executed and delivered this Agreement, which constitutes a valid and
binding agreement of MD enforceable in accordance with its terms (except to the
extent that the enforceability of the indemnification provisions of Section 9
hereof may be limited under federal securities laws or to the extent the
enforceability of this Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the right of creditors
generally).
(f) The Commission has not issued any order preventing or suspending
the use of the Prospectus.
(g) From the time the Registration Statement initially became effective
through the Closing Date, the Registration Statement and the Prospectus did and
will comply in all material respects with the provisions of the Act, and neither
the Registration Statement and the Prospectus nor any Sales Literature (as
hereinafter defined) contains or will contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties contained
in this subsection (g) shall not apply to statements in, or omissions from, the
Registration Statement, the Prospectus or the Sales Literature based upon and in
conformity with information furnished to MD or the Partnership by you in writing
specifically for use in the Registration Statement, the Prospectus or Sales
Literature.
(h) Based upon the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for MD,
and subject to the assumptions and representations expressed therein, under
existing federal income tax laws and regulations the Partnership, upon its
formation, will be classified as the partnership for federal income tax
purposes. The Partnership, at the Closing, will be classified as the partnership
for federal income tax purposes, and at all times subsequent hereto, MD will use
its best efforts to maintain the status of the Partnership as a partnership for
federal income tax purposes.
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(i) Except as disclosed in the Prospectus, there is no litigation or
governmental proceeding pending or, to the best knowledge of MD, threatened that
involves the offering of the Interests or any of the properties or businesses of
MD that would, if adversely decided, materially and adversely affect
(financially or otherwise) the operation of the business of the Partnership, MD
or the offering.
(j) MD is not in violation of the Agreements of Partnership or in
material default in the performance of any obligation, agreement or condition
contained in any agreement by which the Partnership is bound. The execution and
delivery of this Agreement and the Agreements of Partnership, the fulfillment of
the terms set forth herein and therein and the consummation of the transactions
contemplated herein and therein and in the Prospectus will not conflict with or
constitute a breach of or material default under the Agreements of Partnership
or under the certificate of incorporation or bylaws of MD or under any other
agreement, indenture or instrument by which the Partnership or MD is bound or,
to the best knowledge of MD, any law, rule, regulation, order or decree of any
court or any governmental body or administrative agency applicable to MD or the
Partnership.
(k) The financial information (including without limitation the balance
sheets and any accompanying notes and schedules) presented in the Prospectus
concerning MD presents fairly MD's financial position as of the dates thereof in
accordance with generally accepted accounting principles, and there has been,
and through the Closing Date shall be, no material adverse change in its
financial condition since the date of that information.
(l) There has been no material adverse change in the condition,
business or properties of MD, financial or otherwise, from that on the latest
dates as of which such condition, business or properties are set forth in the
Prospectus, except as referred to therein, and such properties and business
substantially conform and shall at the Closing Date with respect to the
Partnership substantially conform to the descriptions thereof contained in the
Prospectus.
(m) MD will timely apply, on behalf of the Partnership, to the Internal
Revenue Service for a tax shelter registration number and, if such a number is
received, will furnish such number to the Investor Partners of the Partnership
within a reasonable time after their admission to the Partnership or within a
reasonable time after the Partnership has received such number, whichever occurs
later.
Section 3. Covenants and Representations of Dealer Manager. You
covenant with and represent to MD that:
(a) You are, and at all times through the last Closing Date will be, a
corporation, validly existing and in good standing as a corporation under the
laws of the jurisdiction set forth on the signature page hereof, with full and
adequate corporate power and corporate authority to enter into and perform this
Agreement.
(b) This Agreement has been duly and validly authorized by you. You
have duly executed and delivered this Agreement, which constitutes a valid and
binding agreement of you enforceable in accordance with its terms (except to the
extent that the enforceability of the indemnification provisions of Section 9
hereof may be limited under federal securities law or to the extent the
enforceability of this Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally).
(c) You will not offer to sell Interests to, solicit offers to buy
Interests from, or transmit Subscription Agreements to, any person on behalf of
MD that you have reasonable grounds to believe (based on information obtained
from such person or otherwise known to you) does not meet the age, net worth,
annual income or other standards applicable to that person as set forth in the
Subscription Agreement.
(d) You will deliver a copy of the Prospectus, containing such legends
as directed by MD, to each subscriber to whom you sell the Interests at or
before the completion of any sale of Interests to such subscriber (which
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sale shall be deemed, for the purposes of this Agreement to occur on the date on
which that subscriber delivers subscription funds to the escrow agent), or
earlier if required by the blue sky or securities laws of any state. You have
not and will not give any information or make any representation in connection
with the offer or sale of Interests other than as contained in the Prospectus,
and will not publish, circulate or otherwise distribute without MD's approval
any solicitation material other than the Prospectus and other sales material
("Sales Literature") provided to you by MD specifically for distribution to
subscribers with the Prospectus. Any such Sales Literature, if distributed, must
have been preceded or must be accompanied by the Prospectus. You agree not to
discuss any specific oil and gas prospect or to refer to any such oil and gas
prospect in any analysis or report on the Interests prepared by you or on your
behalf.
(e) You will make offers to sell Interests to, sell to or solicit
offers to subscribe for Interests from persons in only those states or other
jurisdictions where MD represents to you in writing that such Interests may be
offered and sold and you agree to make reasonable efforts to comply with all
applicable laws, rules and regulations of those states and jurisdictions in
which you offer or sell Interests.
(f) You are and on the last Closing Date will be (i) a securities
broker-dealer registered with the Securities and Exchange Commission and any
jurisdiction where broker-dealer registration is required in order to offer and
sell the Interests and (ii) a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD").
(g) You agree to make reasonable efforts to sell Interests or cause
them to be sold by the Soliciting Dealers in a manner consistent with all the
rules of the NASD applicable in connection with the offering of Interests
including, without limitation, the following provisions of Article III to the
Rules of Fair Practice:
2730. SECURITIES TAKEN IN TRADE
(a) A member engaged in a fixed price offering, who purchases
or arranges the purchase of securities taken in trade, shall purchase
the securities at a fair market price at the time of purchase or shall
act as agent in the sale of such securities and charge a normal
commission therefor.
(b) When used in this section--
(1) the term "taken in trade" means the purchase by a member
as principal, or as agent for the account of another, of a security
from a customer pursuant to an agreement or understanding that the
customer purchase securities from the member which are part of a fixed
price offering.
(2) the term "fair market price" means a price not higher than
the price at which the securities would be purchased from the customer
or from a similarly situated customer in the ordinary course of
business by a dealer in such securities in transactions of similar size
and having similar characteristics but not involving a security taken
in trade.
(3) the term "normal commission" means an amount of commission
which the member would normally charge to that customer or a similarly
situated customer in the ordinary course of business in transactions of
similar size and having similar characteristics but not involving a
security taken in trade.
(c) For purposes of this Section a member shall be
(1) deemed, with respect to securities other than common
stocks, to have taken such securities in trade at a fair market price
when the price paid is not higher than the highest independent bid for
the securities at the time of purchase, if such bid quotations for the
securities are readily available.
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(2) presumed, with respect to common stocks, to have taken
such common stocks in trade at a fair market price when the price paid
is not higher than the highest independent bid for the securities at
the time of purchase, if such bid quotations for the securities are
readily available.
(3) presumed to have taken a security in trade at a price
higher than a fair market price when the price paid is higher than the
lowest independent offer for the securities at the time of purchase, if
such offer quotations for the securities are readily available.
(d) A member, in connection with every transaction subject to
this Section, shall with respect to
(1) common stocks, which are traded on a national securities
exchange or for which quotations are entered in an automated quotation
system, obtain the necessary bid and offer quotations from the national
securities exchange or from the automated quotation system; and
(2) other securities and common stocks not included in
subparagraph (1) of this subsection (d) obtain directly or with the
assistance of an independent agent bid and offer quotations from two or
more independent dealers relating to the securities to be taken in
trade or, if such quotations are not readily available, exercise its
best efforts to obtain such quotations with respect to securities
having similar characteristics and of similar quality as those to be
taken in trade.
(e) A member who purchases a security taken in trade shall
keep or cause to be kept adequate records to demonstrate compliance
with this Section and shall preserve the records for at least 24 months
after the transaction. If an independent agent is used for the purpose
of obtaining quotations, the member must request the agent to identify
the dealers from whom the quotations were obtained and the time and
date they were obtained or request the agent to keep and maintain for
at least 24 months a record containing such information.
2740. SELLING CONCESSIONS
In connection with the sale of securities which are part of a
fixed price offering:
(a) A member may not grant or receive selling concessions,
discounts, or other allowances except as consideration for services
rendered in distribution and may not grant such concessions, discounts
or other allowances to anyone other than a broker or dealer actually
engaged in the investment banking or securities business; provided,
however, that nothing in this Section shall prevent any member from (1)
selling any such securities to any person, or account managed by any
person, to whom it has provided or will provide bona fide research, if
the stated public offering price for such securities is paid by the
purchaser; or (2) selling any such securities owned by him to any
person at any net price which may be fixed by him unless prevented
therefrom by agreement.
(b) The term "bona fide research," when used in this Section,
means advice, rendered either directly or through publications or
writings, as to the value of securities, the advisability of investing
in, purchasing, or selling securities, and the availability of
securities or purchasers or sellers of securities, or analyses and
reports concerning issuers, industries, securities, economic factors
and trends, portfolio strategy, and performance of accounts; provided,
however, that investment management or investment discretionary
services are not bona fide research.
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(c) A member who grants a selling concession, discount or
other allowance to another person shall obtain a written agreement from
that person that he will comply with the provisions of this Section,
and a member who grants such selling concession, discount or other
allowance to a nonmember broker or dealer in a foreign country shall
also obtain from such broker or dealer a written agreement to comply,
as though such broker or dealer were a member, with the provisions of
Section 8 and 36 of this Article and to comply with Section 25 of this
Article as that Section applies to a nonmember broker/dealer in a
foreign country.
(d) A member who receives an order from any person designating
another broker or dealer to receive credit for the sale shall, within
30 days after the end of each calendar quarter, file reports with the
Association containing the following information with respect to each
fixed price offering which terminated during that calendar quarter: the
name of the person making the designation; the identity of the brokers
or dealers designated; the identity and amount of securities for which
each broker or dealer was designated; the date of the commencement and
termination of the offering and such other information as the
Association shall deem pertinent.
(e) A member who is designated by its customer for the sale of
securities shall keep, and maintain for a period of 24 months, records
in such form and manner to show the following information: name of
customer making the designation; the identity and amount of securities
for which the member was designated; the identity of the manager or
managers of the offering, if any; the date of the commencement of the
offering and such other information as the Association shall deem
pertinent.
2420. DEALING WITH NON-MEMBERS
(a) No member shall deal with any non-member broker or dealer
except at the same prices, for the same commissions or fees, and on the
same terms and conditions as are by such member accorded to the general
public.
(b) Without limiting the generality of the foregoing, no
member shall:
(1) in any transaction with any non-member broker or
dealer, allow or grant to such non-member broker or dealer any
selling concession, discount or other allowance allowed by
such member to a member of a registered securities association
and not allowed to a member of the general public;
(2) join with any non-member broker or dealer in any
syndicate or group contemplating the distribution to the
public of any issue of securities or any part thereof, or
(3) sell any security to or buy any security from any
non-member broker or dealer except at the same price at which
at the time of such transaction such member would buy or sell
such security, as the case may be, from or to a person who is
a member of the general public not engaged in the investment
banking or securities business.
(c) Transaction with foreign non-members. The provisions of
paragraphs (a) and (b) of this rule shall not apply to any non-member
broker or dealer in a foreign country who is not eligible for
membership in a registered securities association, but in any
transaction with any such foreign non-member broker or dealer, where a
selling concession, discount, or other allowance is allowed, a member
shall as a condition of such transaction secure from such foreign
broker or dealer an agreement that, in making any sales to purchasers
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within the United States of securities acquired as a result of such
transactions, he will conform to the provisions of paragraphs (a) and
(b) of this rule to the same extent as though he were a member of the
Corporation.
(d) "Non-member broker or dealer". For the purpose of this
rule, the term "non-member broker or dealer" shall include any broker
or dealer who makes use of the mails or of any means or instrumentality
of interstate commerce to effect any transaction in, or to induce the
purchase or sale of, any security, otherwise than on a national
securities exchange, who is not a member of any securities association,
registered with the Commission pursuant to Section 15A of the Act,
except a broker or dealer who deals exclusively in commercial paper,
bankers' acceptances or commercial bills.
(e) Nothing in this rule shall be so construed or applied as
to prevent any member of the Corporation from granting to any other
member of any registered securities association any dealer's discount,
allowance, commission, or special terms.
2810. DIRECT PARTICIPATION PROGRAMS, (B) REQUIREMENTS (2) SUITABILITY
(B) In recommending to a participant the purchase, sale or exchange of an
interest in a direct participation program, a member or person associated with a
member shall:
(i) have reasonable grounds to believe, on the basis
of information obtained from the participant concerning his
investment objectives, other investments, financial situation
and needs, and any other information known by the member or
associated person, that:
a. the participant is or will be in a
financial position appropriate to enable him to
realize to a significant extent the benefits
described in the prospectus, including the tax
benefits where they are a significant aspect of the
program:
b. the participant has a fair market net
worth sufficient to sustain the risks inherent in the
program, including loss of investment and lack of
liquidity; and
c. the program is otherwise suitable for the
participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the determination of
suitability was reached as to each participant.
(c) Notwithstanding the provisions of subsections (a) and (b)
hereof, no member shall execute any transaction in a direct
participation program in a discretionary account without prior written
approval of the transaction by the customer.
2750. TRANSACTIONS WITH RELATED PERSONS
(a) Except as otherwise provided in Subsection (d) of this
Section, no member engaged in a fixed price offering of securities
shall sell the securities to, or place the securities with, any person
or account which is a related person of the member unless such related
person is itself subject to this Section or is a non-member foreign
broker or dealer who has entered into the agreements required by
Subsection 24(c) of this Article.
(b) For purposes of this Section 36, a "related person" of a
member includes any person or account which directly or indirectly
owns, is owned by or is under common ownership with the member.
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(c) A person owns another person or account for purposes of
this Section if the person directly or indirectly:
(1) has the right to participate to the extent of
more than 25 percent in the profits of the other person; or
(2) owns beneficially more than 25 percent of the
outstanding voting securities of the person.
(d) The prohibition contained in Subsection (a) does not apply
to the sale of securities to, or the placement of securities in, a
trading or investment account of a member or a related person of a
member after termination of the fixed price offering if the member or
the related person of the member has made a bona fide public offering
of the securities. A member or a related person of a member is presumed
not to have made a bona fide public offering for the purpose of this
subsection if the securities being offered immediately trade in the
secondary market at a price or prices which are at or above the public
offering price.
(h) You shall immediately forward all Subscription Agreements received
by you, together with all checks received in payment of the purchase price for
Interests, in accordance with Section 4(b).
(i) If you have reviewed representative oil and gas properties which
have been designated by or held the inventory of MD or its affiliates, you will
not discuss any of such oil and gas properties in connection with the sale of
Interests or otherwise indicate any facts about such properties except those, if
any, discussed in the Prospectus.
(j) You will comply with the duties imposed by Rules 15c2-4 and 15c2-8
as promulgated by the Securities and Exchange Commission pursuant to Section 15
of the Securities Exchange Act of 1934, as amended. You will cause the
Soliciting Dealers to transmit for prompt deposit all subscriptions checks,
before noon of the next business day after their receipt by a Soliciting Dealer,
in the designated Partnership escrow account. In the event you receive a check
which is not payable to the escrow agent, you shall promptly return such check
directly to the subscriber not later than the end of the next business day
following its receipt.
(k) Prior to recommending an investment in or offering or selling the
Interest to a prospective purchaser you shall have completely read the
Prospectus and related materials and have reasonable grounds to conclude that:
(1) the prospective purchaser is or will be in a financial position to realize
the benefits described in the Prospectus of an investment in the Interests; (2)
the prospective purchaser has met the suitability requirements described in the
Prospectus and has a fair market net worth sufficient to sustain the risks
inherent in an investment in the Interests specifically, including, the loss of
the entire investment and lack of liquidity; and (3) the investment is otherwise
suitable for the prospective investor.
(l) You will maintain in your files for a period of six (6) years from
the close of any Offering Period documents which disclose the basis upon which
you determined that the prospective investor satisfied the suitability
requirements and was otherwise suitable.
(m) Notwithstanding the provisions of subsection (k) hereof, you will
not execute any transaction with respect to Interests in the Partnership on
behalf of a discretionary account without prior approval of the transactions by
the customer.
(n) In the event that you have been notified by MD that the Prospectus
is materially deficient, you will suspend and cause the Soliciting Dealers to
suspend sales until such time as the Prospectus is appropriately amended or
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supplemented. You will deliver the amended Prospectus or any supplements thereto
to all prospective purchasers and to purchasers who acquired Interests prior to
the date you suspended sales.
(o) Pursuant to this Agreement, you will:
(i) not permit any Soliciting Dealer to offer for sale or sell
any of the Interests in any state where the Interests have not been
registered;
(ii) use your best efforts to insure that the Soliciting
Dealers conduct the Offering pursuant to the Securities Act of 1933, as
amended, state securities laws, the terms of this Agreement, and in
conformity with the provisions of the Prospectus;
(iii) not have any direct interest in the Partnership. In no
event shall the Dealer Manager be considered or become a partner in the
Partnership, and the Dealer Manager shall have no voice or right to be
involved in the management of the affairs of any of the Partnership;
and
(iv) promptly pay the Soliciting Dealers the negotiated sales
commissions and due diligence fees as provided in the Soliciting Dealer
Agreement executed with the respective Soliciting Dealers.
(p) You have conducted your own independent due diligence inquiry and
have concluded that all material facts are adequately and accurately disclosed
and, prior to executing a purchase order in the Interests, will inform the
prospective purchaser, or cause him to be informed by a Soliciting Dealer, of
all pertinent facts relating to the liquidity of the Interests during the life
of the Partnership.
(q) Each Soliciting Dealer shall be required to execute a Soliciting
Dealer Agreement in the form attached hereto as Annex "A" and made a part
hereof.
(r) Your representations, warranties and covenants as contained in this
Section 3 will continue in effect throughout the Offering Period.
Section 4. Subscriptions and Closing.
(a) You acknowledge and agree that MD has reserved the right to reject
or reduce any subscription and that subscriptions for Interests will be accepted
by MD only from investors who in the judgment of MD meet the appropriate
suitability standards set forth in the Prospectus and the Subscription
Agreement.
(b) All Subscription Agreements and all checks received in payment of
the purchase price for Interests shall be subject to, and MD and you hereby
agree that you each shall act in accordance with, the following provisions:
(i) You shall cause all Subscription Agreements and checks, by
noon of the business day following the receipt thereof, to be delivered
to NationsBank, Texas, N.A., Tyler, Texas or other escrow agent
designated by MD (the "Escrow Agent"). All checks will be deposited in
a separate escrow account with the Escrow Agent, to be held therein in
accordance with the terms of the Escrow Agreement between MD and the
Escrow Agent and to be released only in accordance with the Escrow
Agreement; and
(ii) MD shall, by noon of the second business day following
its receipt of a copy of the Subscription Agreement, advise you and the
applicable Soliciting Dealer by telegram, telecopy or other similar
means of telecommunications or by telephone (confirmed in writing), if
MD initially accepts or rejects the
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subscription evidenced by that Subscription Agreement because that
subscriber is considered not suitable for Interests, and if that
subscription has been rejected by MD, MD shall, promptly after advising
you and the applicable Soliciting Dealer of that rejection, direct the
Escrow Agent to return to the Soliciting Dealer and the subscriber's
check, and you shall cause the Soliciting Dealer to return the
originally executed Subscription Agreement and that check to the
subscriber.
(c) MD will notify you and each Soliciting Dealer of the closing of the
offering of Interests in the Partnership and the date as of which the
Partnership is to be funded with subscription proceeds held under the Escrow
Agreement. A closing (the "Closing") will be scheduled to be held at the offices
of MD, 0000 X. Xxxxxxxx, Xxxxx, Xxxxx 00000, as soon as practicable after the
date on which you shall have been notified of the closing of the offering of
Interests in the Partnership, or on such date and at such place as MD may
determine (the "Closing Date").
(d) The right of the Partnership to use funds deposited in the
Partnership account for purposes other than the payment of commissions and fees
shall be subject to the accuracy of and the compliance by MD with its
representations, warranties and covenants set forth herein, to its performance
of its obligations hereunder and to the satisfaction at the Closing with respect
to the Partnership of each of the following further conditions:
(i) You shall have received a copy of the opinion of Xxxxxx &
Xxxxxx L.L.P., counsel to MD and the Partnership, as to certain federal
income tax matters discussed under "Tax Aspects" in the Prospectus,
which opinion shall be reasonably satisfactory to you and your counsel
as of the Closing Date.
(ii) You shall have received a blue sky memorandum prepared by
Xxxxxx & Xxxxxx L.L.P. with respect to the Partnership, to the effect
that the Interests have been duly registered or qualified for sale
under the securities or blue sky laws of the states in which, in
accordance with such memorandum, offers and sales of the Interests may
be made to investors (being those states with respect to which you and
other Soliciting Dealers requested that MD use its reasonable efforts
to register or qualify the Interests for offering and sale under the
securities or blue sky laws of such states pursuant to Section 5(e)
hereof).
(iii) All proceedings and documents in connection with the
transactions contemplated by the Prospectus and this Agreement shall be
reasonably satisfactory in form and substance to you and your counsel,
and MD and the Partnership shall use their reasonable efforts to ensure
that you and your counsel shall have received such other documents in
connection with such transactions as you or they may reasonably
request.
(iv) You and your counsel shall have received a letter or
letters from Xxxxxx & Xxxxxx L.L.P. in form and scope reasonably
satisfactory to you and your counsel as to the due organization of the
Partnership under the law of Delaware, the due admission of the Limited
Partners or General Partners to the Partnership, the due organization
of MD under Delaware law, the qualification of the Partnership and MD
to conduct business in Texas as a foreign limited partnership and
corporation, respectively, the due execution of this Agreement by the
Partnership and MD and the due execution of the Agreement of
Partnership of the Partnership by MD.
Section 5. Covenants of MD. MD covenants with you, in its individual
capacity and in its capacity as Managing Partner, that:
(a) MD will deliver to you, at MD's sole expense, such copies of the
Prospectus and related Subscription Agreements and Sales Literature as you may
reasonably request.
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(b) If any event that occurs before the Closing Date and that relates
to or affects the business or condition (financial or other) of MD or the
Partnership makes it necessary to amend or supplement the Prospectus or the
Registration Statement in order that the Prospectus or the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time it is delivered to
a subscriber, MD will (i) notify you of the occurrence of such event, (ii)
prepare, file, transmit and use its reasonable efforts to cause to become
effective (to the extent appropriate) any such required amendments or
supplements to the Prospectus or the Registration Statement, (iii) advise you,
promptly after MD receives notice thereof, of the time when any post-effective
amendment to the Registration Statement has become effective or of the time when
any amendment or supplement to the Prospectus has been filed and (iv) promptly
prepare and furnish to you a reasonable number of copies of the amendments of,
or supplements to, the Prospectus or the Registration Statement.
(c) MD will notify you immediately and confirm the notice in writing of
the issuance by the Commission or by any state securities administrator of any
stop order suspending the effectiveness of any registration or qualification of
the Interests for sale or enjoining the sale of the interests or of the
initiation of any proceedings for that purpose. MD will make every reasonable
effort to prevent the issuance of any such stop order and, if any such stop
order shall at any time be issued, to obtain the lifting thereof at the earliest
possible moment.
(d) As soon as practicable after the receipt of any Subscription
Agreements, MD will approve or reject such subscriptions and notify you of the
same.
(e) In addition to those jurisdictions in which the Blue Sky Memorandum
indicates that you may offer (or solicit offers) for Interests, MD will use its
reasonable efforts to register or qualify the Interests for offering and sale
under the securities or blue sky laws of such additional jurisdictions as you
may request, will furnish all such information and documents as may be
reasonably necessary for such purpose and will notify you in writing as to the
effective date of such registrations or qualifications as soon as practicable
after the receipt or confirmation thereof, provided that you shall have
specified and made such request in writing to MD with respect to each additional
jurisdiction in which you intend to offer any of the Interests for sale, or
solicit any offers to subscribe for or buy any of the Interests, or otherwise
negotiate with any person in respect of any of the Interests, and MD shall have
no duty, responsibility, liability or obligation to you under this subsection
(e) or any other provision hereof with respect to any other jurisdiction. MD
will undertake to file all reports required to be filed subsequent to completion
of the offering of the Interests and otherwise to continue to comply with the
securities or blue sky laws of each such jurisdiction.
Section 6. Payment of Expenses and Fees.
(a) Except as specifically provided elsewhere in this Agreement, you,
the Soliciting Dealers and MD and the Partnership will pay their own expenses
incident to the transactions contemplated by this Agreement, including fees of
their counsel.
(b) Prior to the time that $1,000,000 or more of subscription funds for
the Partnership are received and accepted, MD may, but is not obligated to,
advance to you from MD's own funds the sales commissions and due diligence fees
which would otherwise be payable in connection with subscription funds received
and accepted prior to such time; provided that such advance may only be paid
with respect to subscriptions that have been accepted by MD. In the event that
either (1) subscription funds of $1,000,000 or more are not received by the
termination of the Offering Period with respect to Interests in the Partnership
or (ii) MD otherwise elects not to close the offering of the Interests in the
Partnership, you will promptly upon notice transmit to MD funds in the amount of
the sales commissions and due diligence fees advanced to you and which have not
been reallowed to a Soliciting Dealer.
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(c) Upon the receipt and acceptance of $1,000,000 in subscriptions for
the Partnership, MD may, but is not obligated to, advance to you from MD's own
funds sales commissions and due diligence fees relating to subscriptions
solicited by you; provided that such advance may only be paid with respect to
subscriptions that have been accepted by MD and for which the subscription funds
have cleared at the office of the Escrow Agent.
(d) In the event that MD makes an advance of sales commissions and due
diligence fees pursuant to Section 6(b) or (c) above, you hereby agree that (i)
prior to the Closing, MD retains the right in its sole discretion to refund to
any subscriber solicited by you the full amount of the subscription funds
transmitted by that subscriber and (ii) in the event that MD refunds
subscription funds to a subscriber solicited by you, you will promptly upon
receipt of notice of that refund transmit to MD funds in the amount of the sales
commissions and due diligence fees advanced to you with respect to your
acceptance of an order for Interests from such subscriber and which have not
been reallowed to a Soliciting Dealer.
(e) If the Closing for the sale of Interests in the Partnership occurs,
as compensation for your services under this Agreement, MD shall pay you from
its own funds: (i) a cash sales commission based on eight percent (8%) of the
sales price of Interests, which you shall reallow to the Soliciting Dealers for
the Interests sold by them, and (ii) you may also be reimbursed up to one-half
percent (1/2%) of the sales price of Interests sold by you for actual expenses
incurred in affirmatively discharging your due diligence responsibilities
pursuant to Rule 2810 of the NASD Conduct Rules and its subsections, less any
sales concessions and due diligence fees advanced to you prior to that Closing
under Section 6(b) or (c) above, except that neither you nor any Soliciting
Dealer will receive any such sales commissions or due diligence fees for
Interests sold to (i) officers, directors or employees of MD or affiliates
thereof, (ii) affiliates of the Managing Partner or (iii) if you so elect by
notifying MD in writing, any of your officers, directors, employees or
registered representatives. No sales commissions or due diligence fees will be
paid on subscriptions refunded for any reason to subscribers prior to that
Closing.
Section 7. Conditions to Obligations of Soliciting Dealer. Your
obligations under this Agreement are subject to the following:
(a) the accuracy of and compliance with the representations and
warranties of MD made in Section 2 hereof and the performance by MD,
individually and in its capacity as Managing Partner, of all material
obligations under this Agreement; and
(b) the absence, on the Closing Date, of any stop order issued under
the Act suspending the use of the Prospectus or the sale of the Interests or of
the initiation or the threatened initiation of any proceedings therefor.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, or cannot be fulfilled on or prior to the Closing Date with
respect to the Partnership, this Agreement and all of your obligations under it,
other than those contained in Section 9 hereof, may be terminated by you by
notifying MD of such termination in writing or by telegram at or prior to the
Closing with respect to the Partnership, and any such termination shall be
without liability of any party to any other party except as otherwise provided
in Section 9 hereof.
Section 8. Conditions to Obligations of MD. The obligations of MD under
this Agreement are subject to the following:
(a) the accuracy of and compliance with your representations and
warranties made in Section 3 hereof and the performance by you of all material
obligations under this Agreement;
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(b) the absence, on the Closing Date, of any stop order issued under
the Act suspending the use of the Prospectus or the sale of the Interests or of
the initiation or the threatened initiation of any proceedings therefor; and
(c) if the Partnership elects in its discretion to offer rescission to
any subscriber because (i) any of the conditions described in this Agreement
shall not have been fulfilled or (ii) other circumstances arise subsequent to
the date hereof that in the judgment of MD require that such an offer be made,
in either case because of any action or inaction taken or failed to be taken by
you in connection with your offering or sale of the Interests, you agree to
return any sales commissions and due diligence fees earned by you and not
reallowed to a Soliciting Dealer with respect to any purchaser who in fact
rescinds in response to such offer, promptly upon written notice of that
rescission from the Partnership.
If any of the conditions specified in this Section 8 shall not have
been fulfilled, or cannot be fulfilled on or prior to the Closing Date with
respect to the Partnership, this Agreement and all obligations of the
Partnership and MD under it, other than those contained in Section 9 hereof, may
be terminated by MD by notifying you of that termination in writing or by
telegram at or prior to the Closing and any such termination shall be without
liability of any party to any other party except as otherwise provided in
Section 9 hereof.
Section 9. Indemnification.
(a) MD will indemnity and hold you harmless against any losses, claims,
damages or liabilities, joint or several, to which you may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any Sales Literature or any omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made not misleading (other
than any untrue statement or omission made in reliance upon and in conformity
with information furnished to MD or the Partnership by or on behalf of you, your
officers, directors or controlling persons or at your or their request
specifically for use in the preparation of the Registration Statement, the
Prospectus or any Sales Literature or any amendment thereof or supplement
thereto); provided that the foregoing indemnity is subject to the condition
that, insofar as it relates to any untrue statement or omission made in the
Prospectus but eliminated or remedied in an amendment thereof or supplement
thereto available to you prior to delivery of written confirmation of sale, such
indemnity shall not inure to the benefit of any person from whom the person
asserting any such loss, claim, damage or liability purchased the Interests that
are the subject thereof (or to the benefit of any person who controls any such
person), if a copy of the amendment or supplement to the Prospectus was not sent
or given to that person with or prior to the written confirmation of the sale of
those Interests to that person or (ii) a breach by MD or the Partnership of any
of its respective representations, warranties, agreements or covenants contained
in this Agreement; and MD will reimburse you for all legal or other expenses
(including reasonable expenses of internal and outside counsel) reasonably
incurred by you in connection with defending any such action or claim. The
agreement of indemnity in this Section 9(a) and in Section 9(b) below shall be
in addition to any liability that MD or the Partnership may otherwise have and
shall extend upon the same terms and conditions to each person, if any, who
controls you and shall apply whether or not any negligent act or omission by you
is alleged or proven; provided, however, that neither MD nor the Partnership
shall be responsible under this Agreement for any losses, damages or liabilities
to the extent they are found in a final judgment of a court of competent
jurisdiction to have resulted solely from your gross negligence or willful
misconduct in performing services hereunder.
(b) The Partnership shall indemnify you for any losses, claims, damages
or liabilities relating to the partnership and to which you may become subject
due to an alleged violation of federal or state securities laws and which arise
out of or are based upon the items set forth in Sections 9(a)(i) and (ii) above
(and are subject to the same conditions and limitations set forth in 9(a)(i) and
(ii) above) if (i) there has been a successful adjudication on the merits of
each
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count involving alleged securities laws violations as to you, (ii) such claims
have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to you or (iii) a court of competent jurisdiction approves a
settlement of the claims against you. In connection with any claim for
indemnification for federal or state securities law violations under this
Section 9(b), you shall place before such court the positions of the Securities
and Exchange Commission, the Securities Commission of the State of Texas and any
other applicable regulatory authority with respect to such indemnification for
securities law violations.
(c) You agree to indemnity and hold harmless MD and the Partnership
against any losses, claims, damages or liabilities, joint or several, to which
any of them may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement of a material fact made by you
with respect to your offering of the Interests, (ii) any untrue statement of a
material fact contained in the Registration Statement, the Prospectus or any
Sales Literature or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, but only to the extent
that such untrue statement or omission was made in reliance upon and in
conformity with information furnished to MD or the Partnership by or on behalf
of you, your officers, directors or controlling persons or at your or their
request for use in the preparation of the Registration Statement, the Prospectus
or any Sales Literature or an amendment thereof or supplement thereto or (iii) a
breach by you of any of your representations, warranties, covenants or
agreements contained in this Agreement; and you will reimburse MD and the
Partnership for any legal or other expenses reasonably incurred by any of them
in connection with investigating or defending any such action or claim. The
agreement of indemnity contained in this subsection (c) shall be in addition to
any liability which you may otherwise have and shall extend, upon the same terms
and conditions, to each partner of the Partnership and to each officer, director
and other person, if any, who controls MD.
(d) Within seven days after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
that indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under that subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under that subsection. In case any such
action shall be brought against any indemnified party, and the indemnified party
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and retention
of such counsel, the indemnifying party shall not be liable to such indemnified
party under such part for any legal or other expense subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation unless (i) the employment by the indemnified
party of separate counsel shall have been authorized in writing in advance by an
indemnifying party in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have charge of the
defense of such action, (iii) such indemnified party shall have reasonably
concluded that there may be one or more defenses available to it which are
different from or additional to those available to one or more of the
indemnifying parties, or (iv) such indemnified party shall have concluded that
there is any material conflict of interest such that representation of the
indemnifying party and the indemnified party would not be in the best interests
of the indemnified party. Notwithstanding anything to the contrary in this
Section 9, the indemnifying party shall not be liable for any settlement of a
claim or action without its written consent.
(e) To provide for just and equitable contribution in any action in
which a claim for indemnification is made pursuant to this Section 9, but when
it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last appeal) that indemnification may not be enforced in that case
notwithstanding that this Section 9 provides for indemnification in that case,
all the parties hereto shall contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (after
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contribution from others) in such proportion so that you are responsible for the
portion represented by the percentage that the sales commissions and due
diligence fees received by you bears to the gross proceeds of the offering of
the Interests, and so that the Partnership (to the extent permitted by
subsection (b) of this Section 9) and MD are responsible for the remaining
portion; provided, however, that no person found guilty (by the entry of a final
judgment or decree by a court of competent jurisdiction) of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not similarly found guilty of
such fraudulent representation. This subsection (e) shall not be operative as to
you to the extent that the Partnership or MD or any person who controls the
Partnership or MD within the meaning of the Act is entitled to receive or has
received indemnification under this Section 9.
Section 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates delivered pursuant to this Agreement will
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of you or MD, and will survive the Closing.
Section 11. Notices. All communications hereunder shall be in writing
and, if sent to you, will be mailed, delivered or telegraphed and confirmed to
you at the address set forth on the signature page hereof, or if sent to
Managing Dealer, MD or the Partnership will be mailed, delivered or telegraphed
and confirmed to you, MD or the Partnership at:
Xxxxxxxxx Development Corporation
0000 X. Xxxxxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: A. Xxxxxxx Xxxxx
Section 12. Parties. This Agreement will inure to the benefit of and be
binding upon you, MD, the Partnership and your and their respective successors,
heirs and representatives. This Agreement and its conditions and provisions are
intended to be and are for the sole and exclusive benefit of the parties to it
and their respective successors, heirs and representatives and not for the
benefit of any other person, firm or corporation unless otherwise expressly
stated.
Section 13. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Texas.
Section 14. Modifications. No provision of this Agreement may be
changed or terminated except by a writing signed by the party or parties to be
charged therewith.
Section 15. Waiver. Any party to this Agreement may waive compliance by
any other party with any of the terms, provisions and conditions set forth in
this Agreement; provided, however, that any such waiver must be in a writing
specifically setting forth the provisions of this Agreement waived thereby.
Section 16. Entire Agreement. This Agreement contains the entire
agreement among the parties to it and is intended to supersede any and all prior
agreements among those parties relating to the same subject matter.
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Section 17. Invalidity. In the event any provision of this Agreement
shall be held to be invalid in any circumstance, that invalidity shall not
affect any other provision of this Agreement.
Section 18. Counterparts. This Agreement may be executed simultaneously
in several counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
Section 19. Assignment. No party may assign its rights or obligations
under this Agreement without the prior written consent of each other party
hereto, except that MD may assign its rights and obligations under this
Agreement in connection with a merger, consolidation, reorganization or other
similar transaction.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement, among
you, MD and the Partnership, all in accordance with its terms.
Sincerely,
XXXXXXXXX DEVELOPMENT CORPORATION
By:
-----------------------------------
Its:
-----------------------------------
XXXXXXXXX ENERGY PARTNERS 98-A, L.P.
By: Xxxxxxxxx Development Corporation
Managing General Partner
By:
------------------------------
Its:
------------------------------
XXXXXXXXX SECURITIES, INC.
By:
-----------------------------------
Its:
-----------------------------------
