ASSUMPTION AGREEMENT
Exhibit 10.72
THIS ASSUMPTION AGREEMENT (this “Agreement”) dated as of November 19, 2007, is made by
and among G M Oil Properties, Inc., an Oklahoma corporation (“GM Oil”), Rio Vista Xxxxx
LLC, an Oklahoma limited liability company (“Xxxxx”), TCW Asset Management Company, as
administrative agent (“Administrative Agent”), and the holders party to the Note Purchase
Agreement described below (“Holders”).
WITNESSETH THAT:
WHEREAS, GM Oil has issued and sold to Holders those certain promissory notes dated as of
August 29, 2005, payable to the order of Holders, in the aggregate original principal amount of
$30,000,000 (the “Notes”), the payment of which Notes is secured by the documents listed in
Exhibit A attached hereto and made a part hereof (the “Security Documents”),
covering certain real and personal property described therein (the “Mortgaged Property”),
reference being here made to the Note Purchase Agreement (as hereinafter defined) and the Security
Documents and the record thereof for all purposes and for the meaning as set forth therein of all
capitalized terms used in this Agreement and not otherwise defined herein (the foregoing documents
and all other documents executed by GM Oil and/or any other party or parties evidencing or securing
or otherwise in connection with the loans evidenced by the Notes being herein collectively called
the “Note Documents”);
WHEREAS, the Notes were issued and sold pursuant to that certain Note Purchase
Agreement dated as of August 29, 2005 (as amended, supplemented or restated, the “Note
Purchase Agreement”), by and among GM Oil, Administrative Agent, and Holders;
WHEREAS, certain of the Note Documents provide that the indebtedness secured thereby may, at
the option of the holders thereof, be accelerated if any or all of the Mortgaged Property is sold
or conveyed without the consent of Holders;
WHEREAS, GM Oil and Xxxxx entered into that certain Asset Purchase Agreement dated as of
October 1, 2007, as amended by that certain Amendment to Asset Purchase Agreement dated of even
date herewith between GM Oil and Xxxxx (as so amended, the “Asset Purchase Agreement”),
wherein GM Oil agreed to convey all of the Mortgaged Property to Xxxxx and Xxxxx agreed to assume
all indebtedness and obligations owing by GM Oil under the Note Documents as set forth therein;
WHEREAS, Holders have been requested to consent to the conveyance of the Mortgaged Property to
Xxxxx and Holders are willing to so consent upon compliance with the terms and provisions of this
Agreement;
WHEREAS, Defaults and Events of Defaults now exist and are continuing under the Note
Purchase Agreement; and
WHEREAS, Holders are the owners and holders of the Notes, and Xxxxx is
contemporaneously herewith becoming the owner of the legal and equitable title to the
Mortgaged Property;
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and for
other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Holders hereby consent to the above described conveyance of the Mortgaged Property upon the
terms and conditions set forth in the Asset Purchase Agreement, subject to the liens, security
interests and assignments created by the Security Documents and waives their option to accelerate
as provided in certain of the Note Documents arising in respect of such conveyance, without
prejudice to its rights with respect to any future conveyance of said property or any interest
therein.
2. Xxxxx hereby assumes and promises to pay according to the terms thereof all Obligations and
also assumes and promises to keep and perform all other covenants and obligations in the Note
Purchase Agreement to be performed by the borrower thereunder, and all other obligations of the
maker of the Notes under any and all other Note Documents.
3. Holders hereby agree that GM Oil shall have no obligation or liability under the Note
Documents from and after the date of this Agreement.
4. Xxxxx and GM Oil have requested that Administrative Agent and Holders waive the Designated
Defaults (defined below), and Administrative Agent and Holders have agreed to do so on the terms
set forth herein. Accordingly, subject to the conditions and limitations set forth herein, and the
agreements of Xxxxx and GM Oil contained herein, Administrative Agent and Holders hereby waive the
Designated Defaults; provided that such waiver (a) shall not be deemed or construed as a waiver of
the obligation of Xxxxx to pay the amounts due described in clauses (a) and (b) of the definition
of Designated Defaults, and (b) Xxxxx shall pay all accrued and unpaid interest that was due and
payable on September 27, 2007 in the amount of $590,868.06 on or before November 21, 2007.
As used in this Section 4, “Designated Defaults” means the following Defaults or
Events of Default that have occurred as of the date of this Agreement and are continuing under
the Note Purchase Agreement:
(a) On the Quarterly Payment Date of June 28, 2007, GM Oil failed to pay the Minimum
Scheduled Quarterly Principal Payment, as required by Section 2.8 of the Note Purchase
Agreement.
(b) On the Quarterly Payment Date of September 27, 2007, GM Oil failed to pay the
Minimum Scheduled Quarterly Principal Payment, together with all accrued and unpaid
interest, as required by Section 2.8 of the Note Purchase Agreement.
(c) GM Oil failed to deliver to Holder Parties a semi-annual Engineering Report,
effective as of May 1, 2007, prior to June 1, 2007, as required by Section 7.2(i) of the
Note Purchase Agreement.
(d) GM Oil’s failure to comply with Section 7.4(b) of the Note Purchase
Agreement by notifying each Holder Party in writing of the occurrence of the above
Defaults or Events of Default under the Note Purchase Agreement.
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(e) The acquisition and ownership by Xxxxx Petroleum Corporation, an Oklahoma
corporation, and GO, LLC, an Oklahoma limited liability company, of interests in the Project
Area and their failure to transfer or convey such interests to GM Oil.
(f) The acquisition and ownership by Concorde Resource Corp., an Oklahoma
corporation, of interests in the Project Area and its failure to transfer or convey
such interests to GM Oil.
5. Xxxxx hereby represents and warrants that (a) Xxxxx, upon the consummation of the transfer
set forth in the Asset Purchase Agreement, is the sole legal and beneficial owner of the Mortgaged
Property; (b) Xxxxx is a limited liability company that is duly organized and legally existing in
good standing under the laws of the State of Oklahoma; (c) the execution and delivery of, and
performance under this Agreement are within Penny’s power and authority without the joinder or
consent of any other party and have been duly authorized by all requisite action and are not in
contravention of the powers of Penny’s certificate of limited liability company, operating
agreement, or other company papers; (d) this Agreement constitutes the legal, valid and binding
obligation of Xxxxx enforceable in accordance with its terms; (e) the execution and delivery of
this Agreement by Xxxxx do not contravene, result in a breach of or constitute a default under any
deed of trust, loan agreement, indenture or other contract, agreement or undertaking to which Xxxxx
is a party or by which Xxxxx or any of its properties may be bound (nor would such execution and
delivery constitute such a default with the passage of time or the giving of notice or both) and do
not violate or contravene any law, order, decree, rule or regulation to which Xxxxx is subject; and
(f) there exists no uncured Default or Event of Default under the Notes, the Note Purchase
Agreement, or any other Note Document (other than the Designated Defaults). Xxxxx agrees to
indemnify and hold each Holder Party harmless against any loss, claim, damage, liability or expense
(including without limitation attorneys’ fees) incurred as a result of any representation or
warranty made by it herein proving to be untrue in any respect.
6. GM Oil hereby represents and warrants that (a) GM Oil, prior to the transfer set forth in
the Asset Purchase Agreement, is the sole legal and beneficial owner of the Mortgaged Property; (b)
GM Oil is a corporation duly incorporated and legally existing under the laws of the State of
Oklahoma; (c) the execution and delivery of, and performance under this Agreement are within GM
Oil’s power and authority without the joinder or consent of any other party and have been duly
authorized by all requisite action and are not in contravention of the powers of GM Oil’s articles
of incorporation, by-laws or other corporate papers; (d) this Agreement constitutes the legal,
valid and binding obligation of GM Oil enforceable in accordance with its terms; (e) the execution
and delivery of this Agreement by GM Oil do not contravene, result in a breach of or constitute a
default under any deed of trust, loan agreement, indenture or other contract, agreement or
undertaking to which GM Oil is a party or by which GM Oil or any of its properties may be bound
(nor would such execution and delivery constitute such a default with the passage of time or the
giving of notice or both) and do not violate or contravene any law, order, decree, rule or
regulation to which GM Oil is subject; and (f) there exists no uncured Default or Event of Default
under the Notes, the Note Purchase Agreement, or any other Note Document (other than the Designated
Defaults). GM Oil agrees to indemnify and hold each Holder Party harmless against any loss, claim,
damage, liability or expense (including without limitation attorneys’ fees) incurred as a result of any representation or warranty made by it
herein proving to be untrue in any respect.
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7. Xxxxx or GM Oil, as appropriate, upon request from Administrative Agent, agrees to execute
such other and further documents as may be reasonably necessary or appropriate to consummate the
transactions contemplated herein or to perfect the Liens and security interests intended to secure
the payment of the Loans evidenced by the Notes.
8. If Xxxxx shall fail to keep or perform any of the covenants or agreements contained herein
or if any statement, representation or warranty contained herein by Xxxxx is false, misleading or
erroneous in any material respect, it shall constitute an Event of Default under the Note Purchase
Agreement and Holder Parties shall be entitled at their option to exercise any and all of their
respective rights and remedies granted pursuant to the Security Documents or any other Note
Document or which any Holder Party may otherwise be entitled, whether at law or in equity. If GM
Oil shall fail to keep or perform any of its covenants or agreements contained herein or if any
statement, representation or warranty contained herein by GM Oil is false, misleading or erroneous
in any material respect, the release of GM Oil contained in Section 3 hereof shall be null and void
and of no further force or effect.
9. The Notes and the other Note Documents are hereby ratified and confirmed in all respects.
All liens, security interests, mortgages and assignments granted or created by or existing under
the Note Documents remain unchanged and continue, unabated, in full force and effect, Penny’s
obligation to repay the Notes and the other Obligations.
10. Xxxxx and GM Oil each hereby acknowledges that the liens, security interests and
assignments created and evidenced by the Security Documents are valid and subsisting.
11. Release of Claims. To induce Holder Parties to enter into this
Agreement, Xxxxx and GM
Oil each hereby (a) represents and warrants that as of the date of
this Agreement there are no claims or offsets against or defenses or counterclaims to its
obligations under the Note Documents, and waives any and all such claims, offsets, defenses, or
counterclaims, whether known or unknown, arising prior to the date of this Agreement, (b) releases
and forever discharges the Released Persons from any and all Released Claims, and (c) covenants not
to assert (and not to assist or enable any other Person to assert) any Released Claim against any
Released Person. Xxxxx and GM Oil acknowledge and agree that such release is a
general release of any and all Released Claims that constitutes a full and complete satisfaction
for all or any alleged injuries or damages arising out of or in connection with the Released
Claims, all of which are herein compromised and settled.
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As used in this Section 11, the following terms shall have the following meanings:
“Released Claims” means any and all actions, causes of action, judgments,
executions, suits, debts, claims, demands, controversies, liabilities, obligations, damages
and expenses of any and every character (whether known or unknown, liquidated or
unliquidated, absolute or contingent, acknowledged or disputed, direct or indirect), at law or in equity, of whatsoever kind or nature (including without limitation claims of usury),
whether heretofore or hereafter accruing, for or because of any matter or things done,
omitted or suffered to be done by any of the Released Persons prior to and including the
date hereof that in any way directly or indirectly arise out of or in any way are connected
to (a) any of the Note Documents or any default or event of default thereunder, (b) any
negotiation, discussion, enforcement action, agreement or failure to agree related to any
Note Document or any default or event of default thereunder, or (c) any action, event,
occurrence, or omission otherwise related to the rights, duties, obligations and
relationships among the various Related Parties and Seller Parties.
“Released Persons” means Administrative Agent, Holders, and Royalty Owner,
together with their respective employees, agents, attorneys, officers, partners,
shareholders, accountants, consultants, and directors, and their respective successors and
assigns.
12. This Agreement supersedes and merges all prior and contemporaneous promises,
representations and agreements. No modification of this Agreement, or any waiver of rights
hereunder, shall be effective unless made by supplemental agreement, in writing, executed by the
parties hereto. This Agreement may not in any way be explained or supplemented by a prior, existing
or future course of dealings between the parties or by any prior, existing, or future performance
between the parties pursuant to this Agreement or otherwise.
13. All notices, requests, consents, demands and other communications required or permitted
under this Agreement or any Note Document shall be in writing, unless otherwise specifically
provided in such Note Document, and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by telecopy or telex, by delivery service with proof of delivery, or by
registered or certified United States mail, postage prepaid, to the parties hereto at their
respective addresses set forth below (unless changed by similar notice in writing given by the
particular party whose address is to be changed). Any such notice or communication shall be deemed
to have been given (a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address provided herein, (b) in the
case of telecopy or telex, upon receipt, or (c) in the case of registered or certified United
States mail, three days after deposit in the mail.
| If to GM Oil: | G M Oil Properties, Inc. | |||
| 000 X. Xxxx Xxxxxx | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxx X. Xxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| If to Xxxxx: | Rio Vista Xxxxx LLC | |||
| 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xx Xxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attn.: Xxx Xxxxxxxx Facsimile: (000) 000-0000 |
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| If to Administrative | ||||
| Agent or Holders: | TCW Asset Management Company | |||
| 000 Xxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxx, XX 00000 | ||||
| Attention: Xxxxxxx Xxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| With copies to: | TCW Asset Management Company | |||
| 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxx Xxxxxxx, XX 00000 | ||||
| Attention: R. Xxxxx
Xxxxxx Facsimile: (000) 000-0000 |
14. Xxxxx hereby acknowledges that the execution of this Agreement by Administrative Agent and
Holders is not intended nor shall it be construed as (i) an actual or implied waiver of any
subsequent default under the Notes, the Note Purchase Agreement or any other Note Document or (ii)
an actual or implied waiver of any condition or obligation imposed upon Xxxxx pursuant to the
Notes, the Note Purchase Agreement or any other Note Document, except to the extent expressly set
forth herein.
15. Upon execution of this Agreement, Xxxxx shall deliver to Administrative Agent in form and
substance satisfactory to Administrative Agent, an opinion of counsel to Xxxxx stating that this
Agreement is valid and binding upon Xxxxx and enforceable in accordance with its terms.
16. Contemporaneously with the execution and delivery hereof, Xxxxx shall pay, or cause to be
paid, all costs and expenses incident to the preparation hereof and the consummation of the
transactions specified herein, including without limitation fees and expenses of legal counsel to
Administrative Agent and recording fees.
17. All representations, warranties, covenants and agreements of Xxxxx and GM Oil herein shall
survive the execution and delivery of this Agreement and the performance hereof, and shall further
survive until all of the Obligations are paid in full. All statements and agreements contained in
any certificate or instrument delivered by Xxxxx or GM Oil hereunder or under the Note Purchase
Agreement to Administrative Agent or Holders shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, Xxxxx or GM Oil, as applicable, under this
Agreement and under the Note Purchase Agreement.
18. This Agreement may be executed in any number of counterparts with the same effect as if
all parties hereto had signed the same document. All such counterparts shall be construed together
and shall constitute one instrument, but in making proof hereof it shall only be necessary to
produce one such counterpart. This Agreement may be validly executed by facsimile or other
electronic transmission.
19. If any covenant, condition, or provision herein contained is held to be invalid by final
judgment of any court of competent jurisdiction, the invalidity of such covenant, condition, or provision shall not in any way affect any other covenant, condition or provision herein
contained.
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20. It is expressly agreed by the parties hereto that time is of the essence with respect to
this Agreement.
21. Each of GM Oil and Xxxxx represents and warrants to Administrative Agent and each Holder
that it (a) understands fully the terms of this Agreement and the consequences of the execution and
delivery hereof, (b) has been afforded an opportunity to have this Agreement reviewed by, and to
discuss this Agreement with, such attorneys and other persons as it may wish, and (c) has entered
into this Agreement of its own free will and accord and without threat, duress or other coercion of
any kind by any Person. The parties hereto acknowledge and agree that neither this Agreement shall
not be construed more favorably in favor of one than the other based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to the negotiation
and preparation of this Agreement.
22. This Agreement shall be governed by and construed in accordance with the Laws of
the State of New York.
23. This Agreement is a Note Document, and all provisions in the Note Purchase Agreement
pertaining to Note Documents apply hereto.
24. The terms and provisions hereof shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
25. This written Agreement and the other Note Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent
oral agreements of the
parties. There are no unwritten oral agreements between the
parties.
[Remainder
of page intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement is executed as of the date first above written.
| GM OIL: GM OIL PROPERTIES, INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Xxxx X. Xxxx | ||||
| Chief Executive Officer | ||||
| XXXXX: RIO VISTA XXXXX LLC |
||||
| By: | /s/ Xxx Xxxxxxxx | |||
| Xxx Xxxxxxxx | ||||
| Manager | ||||
| ADMINISTRATIVE AGENT: TCW ASSET MANAGEMENT COMPANY, Administrative Agent |
||||
| By: | ||||
| Name: | ||||
| Title | ||||
| By: | ||||
| Name: | ||||
| Title | ||||
IN WITNESS WHEREOF, this Agreement is executed as of the date first above written.
| GM OIL: G M OIL PROPERTIES, INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Xxxx X. Xxxx | ||||
| Chief Executive Officer | ||||
| XXXXX: RIO VISTA XXXXX LLC |
||||
| By: | /s/ Xxx Xxxxxxx | |||
| Xxx Xxxxxxx Manager |
||||
| ADMINISTRATIVE AGENT: TCW ASSET MANAGEMENT COMPANY, Administrative Agent |
||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
[ASSUMPTION AGREEMENT]
| HOLDERS: | ||||||||||
| TCW ENERGY FUND
X — NL, L.P., a California limited partnership |
||||||||||
| By: | TCW (ENERGY X) LLC, its General Partner: | |||||||||
| By: | TCW Asset Management
Company, its Managing Member |
|||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
| TCW ENERGY FUND XB
— NL, L.P., a California limited partnership |
||||||||||
| By: | TCW (ENERGY X) LLC, its General Partner: | |||||||||
| By: | TCW Asset Management
Company, its Managing Member |
|||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
[ASSUMPTION AGREEMENT]
| TCW ENERGY FUND
XC — NL, L.P., a California limited partnership |
||||||||||
| By: | TCW (ENERGY X) LLC, its General Partner: | |||||||||
| By: | TCW Asset Management
Company, its Managing Member |
|||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
| TCW ENERGY FUND XD — NL, L.P., a California limited partnership |
||||||||||
| By: | TCW (ENERGY X) LLC, its General Partner: | |||||||||
| By: | TCW Asset Management
Company, its Managing Member |
|||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
| By: | /s/ [ILLEGIBLE] | |||||||||
| Title: | ||||||||||
[ASSUMPTION AGREEMENT]
| TCW ASSET MANAGEMENT COMPANY, a California corporation, as Investment Manager under the Amended and
Restated Investment Management and Custody Agreement dated as of December 3, 2003 among Ensign Peak
Advisors, Inc., TCW Asset Management Company and Trust Company of the West, a California trust
company, as Sub-Custodian |
||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
| TCW ASSET MANAGEMENT COMPANY, a California corporation, as Investment Manager under the Amended and
Restated Investment Management and Custody Agreement dated as of December 11, 2003 among Xxxxx X.
Xxxxxxx, Xx. Partition Trust, Xxxxx X. Xxxxxxx, Xx. Trust, Xxxx Xxxxxxx Xxxxxxx Xxxxxx Partition
Trust, Xxxx Xxxxxxx Uihlien Trust, TCW Asset Management Company and Trust Company of the West, a
California trust company, as Sub-Custodian |
||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
[ASSUMPTION AGREEMENT]
| TCW ASSET MANAGEMENT COMPANY, a California corporation, as Investment Manager under the Amended and
Restated Investment Management and Custody Agreement dated as of March 18, 2004 among ING Life
Insurance and Annuity Company, TCW Asset Management Company and Trust Company of the West, a
California trust company, as Sub-Custodian |
||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
[ASSUMPTION AGREEMENT]
EXHIBIT A
SECURITY SCHEDULE
Mortgage, Assignment, Security Agreement, Fixture Filing and Financing Statement dated as of August
29, 2005 by GM Oil in favor of Administrative Agent, as amended or supplemented.
Security Agreement dated as of August 29, 2005 executed by GM Oil in favor of Administrative Agent,
as secured party, as amended or supplemented.
Pledge Agreement dated as of August 29, 2005 executed by GM Oil in favor of Administrative Agent,
as secured party, as amended or supplemented.
[ASSUMPTION AGREEMENT]
