PURCHASE AGREEMENT by and among PRO LP CORP. a Delaware corporation and PRO GP CORP. a Delaware corporation collectively, as Selling Parties, and BREITBURN ENERGY PARTNERS L.P. a Delaware limited partnership, as Buyer, for the purchase and sale of all...
Exhibit
10.2
by
and among
PRO
LP CORP.
a
Delaware corporation and
PRO
GP CORP.
a
Delaware corporation
collectively,
as Selling Parties,
and
a
Delaware limited partnership,
as
Buyer,
for
the purchase and sale of
all
of the Common Units of
a
Delaware limited partnership
owned
by Pro LP Corp. and Pro GP Corp.
dated
as of June ___, 2008
TABLE
OF CONTENTS
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Page
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ARTICLE
I
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DEFINITIONS
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ARTICLE
II
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SALE
AND PURCHASE
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Section
2.1
|
Agreement
to Sell and to Purchase
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3
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Section
2.2
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Certain
Deliveries at Closing
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4
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Section
2.3
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Purchase
Price
|
4
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ARTICLE
III
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REPRESENTATIONS
AND WARRANTIES OF SELLING PARTIES
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Section
3.1
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Organization
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4
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Section
3.2
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Title
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4
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Section
3.3
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Validity
of Agreement; Authorization
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4
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Section
3.4
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No
Conflict or Violation
|
5
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|
Section
3.5
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Consents
and Approvals
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5
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|
Section
3.6
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Brokers
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5
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Section
3.7
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No
Other Representations
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5
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ARTICLE
IV
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REPRESENTATIONS
AND WARRANTIES OF BUYER
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Section
4.1
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Organization
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6
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|
Section
4.2
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Validity
of Agreement; Authorization
|
6
|
|
Section
4.3
|
No
Conflict or Violation
|
6
|
|
Section
4.4
|
Consents
and Approvals
|
6
|
|
Section
4.5
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Brokers
|
7
|
|
Section 4.6
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Financial
Ability
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7
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ARTICLE
V
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COVENANTS
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Section
5.1
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Further
Assurances
|
7
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|
Section
5.2
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Commercially
Reasonable Efforts
|
7
|
|
Section
5.3
|
Confidential
Information
|
7
|
|
Section
5.4
|
Transfer
Taxes and Tax Information
|
8
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|
ARTICLE
VI
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|
CLOSING
DELIVERIES-SELLING PARTIES
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Section
6.1
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Receipt
of Documents
|
8
|
i
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Section
6.2
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Consents
and Approvals
|
8
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|
Section
6.3
|
Contemporaneous
Closing Under the GP LLC Interest Agreement
|
8
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|
Section
6.4
|
Amendment
of Administrative Services Agreement with BreitBurn Energy Company
LP,
Operations and Proceeds Agreement and Surface Operating
Agreement
|
8
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ARTICLE
VII
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|
CLOSING
DELIVERIES-BUYER
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|
Section
7.1
|
Receipt
of Documents
|
9
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|
Section
7.2
|
Consents
and Approvals
|
9
|
|
Section
7.3
|
Contemporaneous
Closing Under the GP LLC Interest Agreement
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9
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ARTICLE
VIII
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[RESERVED]
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ARTICLE
IX
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SURVIVAL;
INDEMNIFICATION
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Section
9.1
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Survival
|
9
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|
Section
9.2
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Indemnification
Coverage
|
9
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Section
9.3
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Procedures
|
11
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Section
9.4
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Waiver
of Consequential, Etc., Damages
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11
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Section
9.5
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Compliance
with Express Negligence Rule
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11
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Section
9.6
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Remedy
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12
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Section
9.7
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Tax
Treatment of Indemnity Payments
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12
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ARTICLE
X
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|
MISCELLANEOUS
PROVISIONS
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||
|
Section
10.1
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Publicity
|
12
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Section
10.2
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Successors
and Assigns; No Third Party Beneficiaries
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12
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Section
10.3
|
Investment
Bankers, Financial Advisors, Brokers and Finders
|
12
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|
Section
10.4
|
Fees
and Expenses
|
12
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Section
10.5
|
Notices
|
13
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|
Section
10.6
|
Entire
Agreement
|
14
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Section
10.7
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Amendments
|
14
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Section
10.8
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Severability
|
14
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Section
10.9
|
Titles
and Headings
|
14
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Section
10.10
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Signatures
and Counterparts
|
14
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Section
10.11
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Enforcement
of the Agreement; Damages
|
14
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Section
10.12
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Governing
Law
|
15
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Section
10.13
|
Disclosure
|
15
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Section 10.14
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Consent
to Jurisdiction
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15
|
ii
Disclosure
Schedules
|
Schedule
2.3
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Purchase
Price Allocation
|
|
Schedule
3.2
|
Transfer
Restrictions
|
|
Schedule
3.4
|
Selling
Parties’ No Conflict or Violation
|
|
Schedule
3.5
|
Selling
Parties’ Consents and Approvals
|
|
Schedule
3.6
|
Selling
Parties’ Brokers
|
|
Schedule
4.3
|
Buyer’s
No Conflict or Violation
|
|
Schedule
4.4
|
Buyer’s
Consents and Approvals
|
|
Schedule 4.5
|
Buyer’s
Brokers
|
Exhibits
|
Assignment
Separate from Certificate (Pro LP)
|
|
|
Exhibit 2.2(a)(ii)
|
Assignment
Separate from Certificate (Pro GP)
|
|
Exhibit
6.4(a)
|
Amendment
to Administrative Services Agreement
|
|
Exhibit
6.4(b)
|
Amendment
to Operations and Proceeds Agreement
|
|
Amendment
to Surface Operating Agreement
|
|
|
Exhibit
7.3
|
Acknowledgement
and Termination of Omnibus
Agreement
|
iii
THIS
PURCHASE AGREEMENT (this “Agreement”)
is
made and entered into as of this 17th day of June, 2008, by and among PRO LP
CORP., a Delaware corporation (“Pro
LP”),
and
PRO GP CORP., a Delaware corporation (“Pro
GP,”
and
collectively with Pro LP, the “Selling
Parties”),
and
BREITBURN ENERGY PARTNERS L.P., a Delaware limited partnership (“Buyer”).
W I T N E S S E T H:
WHEREAS,
Pro LP
owns 14,344,659 common units (“Common
Units”)
representing limited partnership interests in BreitBurn Energy Partners L.P.,
a
Delaware limited partnership (the “Partnership”,
and
such Common Units owned by Pro LP being referred to herein as the “Pro
LP Common Units”),
which
represent an approximate 21.5% limited partner interest in the
Partnership;
WHEREAS,
Pro GP
owns 60,303 Common Units (the “Pro
GP Common Units,”
and
together with the Pro LP Common Units, the “Sellers’
Common Units”),
which
represent an approximate 0.1% limited partner interest in the
Partnership;
WHEREAS,
Buyer
desires to purchase the Sellers’ Common Units from the respective Selling
Parties, and each Selling Party desires to sell the Sellers’ Common Units owned
by it to Buyer, in each case upon the terms and subject to the conditions set
forth in this Agreement;
WHEREAS,
Pro LP
and Pro GP own certain limited liability company interests in the entity that
is
the sole member of the general partner of the Partnership, which limited
liability company interests are being sold to Buyer contemporaneously herewith
pursuant to a separate Purchase Agreement among Pro LP, Pro GP and Buyer of
even
date herewith (the “GP
LLC Interest Agreement”);
and
WHEREAS,
as of
the date hereof, Provident Energy Ltd., an Alberta corporation (“Seller
Parent”),
has
entered into a Guaranty Agreement (the “Seller
Parent Guaranty”)
in
favor of Buyer and the other Buyer Indemnified Parties, pursuant to which the
Seller Parent has guaranteed the performance by the Selling Parties of all
of
their obligations under this Agreement and the Transaction
Documents.
NOW,
THEREFORE,
in
consideration of the mutual terms, conditions and other agreements set forth
herein, the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
As
used
herein, the following terms have the following meanings:
“Affiliate”
of
a
Person means a Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the
first-mentioned Person.
“Agreement”
has
the
meaning assigned to such term in the Preamble.
“Bidder
Confidentiality Agreements”
has
the
meaning assigned to such term in Section
5.3(b).
“Buyer”
has
the
meaning assigned to such term in the Preamble.
“Buyer
Indemnified Parties”
has
the
meaning assigned to such term in Section
9.2(a).
“Closing”
has
the
meaning assigned to such term in Section
2.1(b).
“Closing
Date”
has
the
meaning assigned to such term in Section
2.1(b).
“Common
Units”
has
the
meaning assigned to such term in the Recitals.
“Encumbrances”
has
the
meaning assigned to such term in Section
2.1(a)(i).
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“GP
LLC Interest Agreement”
has
the
meaning assigned to such term in the Recitals.
“Governmental
Authority”
has
the
meaning assigned to such term in Section
3.4.
“Indemnified
Party”
has
the
meaning assigned to such term in Section
9.2(c)(i).
“Indemnifying
Party”
has
the
meaning assigned to such term in Section
9.2(c)(i).
“Loss”
or
“Losses”
has
the
meaning assigned to such term in Section
9.2(a).
“Organizational
Documents”
shall
mean certificates of incorporation, by-laws, certificates of formation, limited
liability company operating agreements, partnership or limited partnership
agreements or other formation or governing documents of a particular
entity.
“Partnership”
has
the
meaning assigned to such term in the Recitals.
“Partnership
Agreement”
shall
mean the First Amended and Restated Agreement of Limited Partnership of the
Partnership, dated as of October 10, 2006.
“Partnership
Entities”
shall
mean the Partnership and its Subsidiaries.
“Person”
shall
mean an individual, corporation, association, trust, limited liability company,
limited partnership, limited liability partnership, partnership, incorporated
organization, other entity or group (as defined in Section 13(d)(3) of the
Exchange Act).
“Pro
GP”
has
the
meaning assigned to such term in the Preamble.
“Pro
GP Common Units”
has
the
meaning assigned to such term in the Recitals.
“Pro
LP”
has
the
meaning assigned to such term in the Preamble.
2
“Pro
LP Common Units”
has
the
meaning assigned to such term in the Recitals.
“Purchase
Price”
has
the
meaning assigned to such term in Section
2.3.
“Seller
Indemnified Parties”
has
the
meaning assigned to such term in Section
9.2(b).
“Seller
Parent”
has
the
meaning assigned to such term in the Recitals.
“Seller
Parent Guaranty”
has
the
meaning assigned to such term in the Recitals.
“Sellers’
Common Units”
has
the
meaning assigned to such term in the Recitals.
“Selling
Parties”
has
the
meaning assigned to such term in the Preamble.
“Subsidiary”
when
used with respect to any party means any corporation or other organization
of
which such party directly or indirectly owns at least a majority of the
securities or other interests having by their terms ordinary voting power to
elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization.
“Transaction
Documents”
shall
mean the agreements, contracts, documents, instruments and certificates provided
for in this Agreement to be entered into by one or more of the parties hereto
or
any of their Affiliates in connection with the sale of Sellers’ Common Units
contemplated by this Agreement, including without limitation the Seller Parent
Guaranty.
“Transfer
Taxes”
has
the
meaning assigned to such term in Section
5.4.
ARTICLE
II
SALE
AND PURCHASE
Section
2.1 Agreement
to Sell and to Purchase.
(a) On
the
Closing Date (as hereinafter defined) and upon the terms and subject to the
conditions set forth in this Agreement:
(i) Pro
LP
shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall
purchase and accept from Pro LP, the Pro LP Common Units, free and clear of
any
pledges, restrictions on transfer, proxies and voting or other agreements,
liens, claims, charges, mortgages, security interests or other legal or
equitable encumbrances, limitations or restrictions of any nature whatsoever
(“Encumbrances”),
except for restrictions on transfer arising under applicable securities laws
or
as may be set forth in the Partnership Agreement; and
(ii) Pro
GP
shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall
purchase and accept from Pro GP, the Pro GP Common Units, free and clear of
any
Encumbrances, except for restrictions on transfer arising under applicable
securities laws or as may be set forth in the Partnership
Agreement.
3
(b) The
closing of such sale and purchase (the “Closing”) shall take place at 8:00 a.m.
(Central Time), on the date hereof (the “Closing
Date”)
at the
offices of Xxxxxxx Xxxxx LLP in Houston, Texas or at such other place as the
parties hereto shall agree in writing.
Section
2.2 Certain
Deliveries at Closing.
(a) At
the
Closing, the Selling Parties shall make the following deliveries to
Buyer:
(i) Pro
LP
shall deliver to Buyer a duly executed certificate endorsed to Buyer,
representing 14,344,659 Common Units or a duly executed Assignment Separate
from
Certificate in the form attached as Exhibit
2.2(a)(i)
hereto;
(ii) Pro
GP
shall deliver to Buyer a duly executed certificate endorsed to Buyer,
representing 60,303 Common Units or a duly executed Assignment Separate from
Certificate (Pro LP) in the form attached as Exhibit
2.2(a)(ii)
hereto;
and
(iii) a
certificate of non-foreign status of each of the Selling Parties meeting the
requirements of Treasury Regulation Section 1.1445-2(b)(2).
(b) At
the
Closing, Buyer shall make payment of the Purchase Price, as provided in
Section
2.3
below.
Section
2.3 Purchase
Price.
The
aggregate purchase price for the Sellers’ Common Units (the “Purchase
Price”)
shall
be $335,033,175, subject to adjustment, if applicable, only pursuant to
Section
9.7.
At the
Closing, Buyer shall deliver to the Selling Parties the Purchase Price, which
shall be paid by wire transfer to the Selling Parties of immediately available
funds made to such bank account or accounts as designated in writing by the
Selling Parties on or before the Closing Date. The Purchase Price shall be
allocated between the Selling Parties in accordance with Schedule
2.3.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLING PARTIES
As
of the
date hereof, each of the Selling Parties hereby represents and warrants, jointly
and severally, to Buyer as follows:
Section
3.1 Organization.
Each of
Pro LP and Pro GP is a corporation duly formed, validly existing and in good
standing under the laws of the State of Delaware.
Section
3.2 Title.
Except
as provided in the Partnership Agreement and for restrictions on transfer set
forth on Schedule
3.2
or
arising under applicable securities laws, (i) Pro LP owns all of the Pro LP
Common Units, free and clear of any Encumbrances, and (ii) Pro GP owns all
of
the Pro GP Common Units, free and clear of any Encumbrances.
Section
3.3 Validity
of Agreement; Authorization.
Each of
the Selling Parties has the power and authority to enter into this Agreement
and
the Transaction Documents to which it is party and to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and
such
Transaction Documents and the performance of the Selling Parties’ obligations
hereunder and thereunder have been duly authorized by the Board of Directors
of
Pro LP and the Board of Directors of Pro GP, as applicable, and no other
proceedings on the part of any of the Selling Parties are necessary to authorize
such execution, delivery and performance. This Agreement and the Transaction
Documents to which any of the Selling Parties is party each have been duly
executed and delivered by each of the Selling Parties, as applicable, and
constitute such Selling Party’s valid and binding obligation enforceable against
such Selling Party in accordance with its terms (except to the extent that
its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar law affecting the enforcement of creditors’
rights generally or by general equitable principles).
4
Section
3.4 No
Conflict or Violation.
The
execution, delivery and performance of this Agreement and the Transaction
Documents to which each of the Selling Parties is party by each of the Selling
Parties do not: (a) violate or conflict with any provision of the Organizational
Documents of any Selling Party; (b) violate any applicable provision of law,
statute, judgment, order, writ, injunction, decree, award, rule, or regulation
of any foreign, federal, state or local government, court, arbitrator, agency
or
commission or other governmental or regulatory body or authority (“Governmental
Authority”);
(c)
violate, result in a breach of, constitute (with due notice or lapse of time
or
both) a default or cause any obligation, penalty or premium to arise or accrue
under any material contract, lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which any of
the
Selling Parties is a party or by which any of them is bound or to which any
of
their respective properties or assets is subject; or (d) result in the creation
or imposition of any Encumbrance upon any of the properties or assets of any
of
the Partnership Entities, except in the cases of clauses (b) through (d) above,
as set forth on Schedule
3.4.
Section
3.5 Consents
and Approvals.
Except
as disclosed on Schedule
3.5,
no
material consent, approval, waiver or authorization of, or filing, registration
or qualification with, any Governmental Authority or any other Person (on the
part of any of the Selling Parties) is required for any such party to execute
and deliver this Agreement or to perform its respective obligations hereunder.
To the knowledge of the Selling Parties, there are no Transfer Taxes arising
under the laws of Canada resulting from the transactions contemplated by this
Agreement.
Section
3.6 Brokers.
Except
as disclosed on Schedule
3.6,
neither
of the Selling Parties has employed the services of an investment banker,
financial advisor, broker or finder in connection with this Agreement or any
of
the transactions contemplated hereby for which any of Buyer or any Partnership
Entity would have any obligation or liability.
Section
3.7 No
Other Representations.
Except
as and to the extent set forth in this Article
III,
neither
of the Selling Parties nor any other Person makes any representations or
warranties whatsoever to Buyer, and the Selling Parties hereby disclaim all
liability and responsibility for any representation, warranty, statement, or
information made, communicated, or furnished (orally or in writing) to Buyer
or
its Affiliates or representatives (including any opinion, information,
projection, or advice that may have been or may be provided to Buyer by any
director, officer, employee, agent, consultant, or representative of either
of
the Selling Parties or any Affiliate thereof) other than as and to the extent
set forth in this Article
III.
Neither
of the Selling Parties nor any other Person makes any representations or
warranties to Buyer regarding the probable success or profitability of any
of
the Partnership Entities or their respective businesses, individually or on
a
consolidated basis.
5
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF BUYER
As
of the
date hereof, Buyer hereby represents and warrants to each of the Selling Parties
as follows:
Section
4.1 Organization.
Buyer
is a limited partnership duly formed, validly existing and in good standing
under the laws of the State of Delaware and has all requisite power and
authority to own its properties and assets and to conduct its business as now
conducted.
Section
4.2 Validity
of Agreement; Authorization.
Buyer
has the power and authority to enter into this Agreement and the Transaction
Documents to which Buyer is a party and to carry out its obligations hereunder
and thereunder. The execution and delivery of this Agreement and such
Transaction Documents and the performance of Buyer’s obligations hereunder and
thereunder have been duly authorized by the board of directors of the general
partner of Buyer and no other proceedings on the part of Buyer are necessary
to
authorize such execution, delivery and performance. This Agreement and the
Transaction Documents to which Buyer is a party each have been or will be at
the
Closing, as applicable, duly executed and delivered by Buyer and constitute,
or
will constitute at the Closing, as applicable, the valid and binding obligation
of Buyer enforceable against Buyer in accordance with its terms (except to
the
extent that its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar law affecting the enforcement of
creditors’ rights generally or by general equitable principles).
Section
4.3 No
Conflict or Violation.
The
execution, delivery and performance by Buyer of this Agreement and the
Transaction Documents to which Buyer is a party do not and will not: (a) violate
or conflict with any provision of its Organizational Documents; (b) violate
any
applicable provision of law, or any order, judgment or decree of any
Governmental Authority; (c) except as disclosed on Schedule
4.3,
violate, result in a breach of, or constitute (with due notice or lapse of
time
or both) a default under any contract, lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which Buyer
is a
party or by which it is bound or to which any of its properties or assets is
subject; or (d) result in the creation or imposition of any Encumbrance upon
any
of its properties or assets where such violations, breaches, defaults or
Encumbrances in the aggregate would have a material adverse effect on the
transactions contemplated hereby or on the assets, properties, business,
operations, net income or financial condition of Buyer.
Section
4.4 Consents
and Approvals.
Except
as disclosed on Schedule
4.4,
no
material consent, approval, waiver or authorization of, or filing, registration
or qualification with, any Governmental Authority or any other Person (on the
part of Buyer), is required for Buyer to execute and deliver this Agreement
or
the Transaction Documents to which Buyer is a party or to perform its
obligations hereunder or thereunder.
6
Section
4.5 Brokers.
Except
as disclosed on Schedule
4.5,
Buyer
has not employed the services of an investment banker, financial advisor, broker
or finder in connection with this Agreement or any of the transactions
contemplated hereby.
Section
4.6 Financial
Ability.
Buyer
has sufficient immediately available funds to pay the Purchase Price at the
Closing and to effect the transactions contemplated hereby.
ARTICLE
V
COVENANTS
Section
5.1 Further
Assurances.
Upon
the request of Buyer at any time on or after the Closing Date, each of the
Selling Parties will promptly execute and deliver, or cause the Seller Parent
to
execute and deliver, such further instruments of assignment, transfer,
conveyance, endorsement, direction or authorization and other documents as
Buyer
or its counsel may reasonably request in order to perfect title of Buyer and
its
successors and assigns to the Sellers’ Common Units or otherwise to effectuate
the purposes of this Agreement. Except as provided in Section
5.7
of the
GP LLC Interest Agreement, each of the parties hereto acknowledges and agrees
that this Agreement shall not relieve either party from any obligations or
liabilities it may have under existing agreements to the other party for
services rendered prior to the date of this Agreement.
Section
5.2 Commercially
Reasonable Efforts.
Upon
the terms and subject to the conditions of this Agreement, each of the parties
hereto will use all commercially reasonable efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable consistent with applicable law to consummate and make effective
in
the most expeditious manner practicable the transactions contemplated
hereby.
Section
5.3 Confidential
Information.
(a) For
two
(2) years after the Closing, the Selling Parties and their Affiliates shall
not,
directly or indirectly, disclose to any Person any information not in the public
domain or generally known in the industry, in any form, whether acquired prior
to or after the Closing Date, relating to the business and operations of the
Partnership Entities. Notwithstanding the foregoing, the Selling Parties may
disclose any information relating to the business and operations of the
Partnership Entities, including financial information, (i) if required by law
or
applicable stock exchange rule, (ii) if such disclosures are made in public
filings with a stock exchange and are in the ordinary course of business
consistent with past practices, and (iii) to such other Persons if, at the
time
such information is provided, such Person is already in the possession of such
information.
(b) Except
as
consented to by Buyer in writing, none of the Selling Parties and their
Affiliates shall release any Person from any Bidder Confidentiality Agreements
now existing with respect to the Sellers’ Common Units or Partnership Entities
or waive or amend any provision thereof. After the Closing Date, the Selling
Parties shall use commercially reasonable efforts to have all confidential
information either returned to the Selling Parties or destroyed. Furthermore,
if
any parties to the Bidder Confidentiality Agreements breach the terms of their
respective agreements, upon the request of Buyer, the Selling Parties and the
Seller Parent shall cooperate with Buyer to enforce the terms of such Bidder
Confidentiality Agreements at Buyer’s cost and expense. The term “Bidder
Confidentiality Agreements”
shall
mean the confidentiality agreements between any of the Seller Parent, the
Selling Parties or any of their Affiliates or advisors and prospective
purchasers (other than Buyer or its Affiliates) with respect to Sellers’ Common
Units.
7
Section
5.4 Transfer
Taxes and Tax Information.
All
excise, sales, use, transfer (including real property transfer or gains), stamp,
documentary, filing, recordation and other similar taxes resulting from the
transactions contemplated by this Agreement (the “Transfer
Taxes”)
shall
be borne and paid by Buyer. Any tax return that must be filed in connection
with
Transfer Taxes shall be prepared and filed when due by the party responsible
under applicable law for filing such tax return, and such party will provide
such tax returns to the other party at least ten days prior to the due date
for
such tax returns and shall provide such other party with a reasonable
opportunity to comment on such tax returns during such ten-day period. If the
person responsible for filing the tax return is a Selling Party, such person
may, but is not required to, pay any Transfer Taxes due with such tax return
and, in such case, Buyer promptly shall reimburse such Transfer Taxes to such
Selling Party. Buyer shall provide to each Selling Party, by January 31, 2009,
the information necessary to allow each Selling Party to file the statement
required by the second sentence of Treasury Bulletin Section 1.751-1(b)(5),
which information will be based upon the unaudited financial statements of
Buyer.
ARTICLE
VI
CLOSING
DELIVERIES-SELLING PARTIES
At
or
before the Closing, the Selling Parties shall deliver or otherwise satisfy
the
following:
Section
6.1 Receipt
of Documents.
The
Selling Parties shall deliver to Buyer the items specified in Section
2.2(a),
in each
case duly executed and dated the Closing Date.
Section
6.2 Consents
and Approvals.
All
consents, waivers, authorizations and approvals set forth on Schedule
3.5
shall
have been duly obtained and shall be in full force and effect on the Closing
Date.
Section
6.3 Contemporaneous
Closing Under the GP LLC Interest Agreement.
Buyer’s
conditions to closing under the GP LLC Interest Agreement shall have been
satisfied or waived by Buyer and the Selling Parties shall be standing ready
to
deliver the limited liability interests thereunder to Buyer upon receipt of
payment therefor in accordance with the terms of the GP LLC Interest
Agreement.
Section
6.4 .
The
Selling Parties shall have caused their affiliates to enter into an amendment
of
each of the Administrative Services Agreement with BreitBurn Energy Company
LP,
the Operations and Proceeds Agreement and the Surface Operating Agreement in
the
form attached hereto as Exhibits
6.4(a),
(b)
and
(c).
8
ARTICLE
VII
CLOSING
DELIVERIES-BUYER
At
or
before the Closing, Buyer
shall
deliver or otherwise satisfy the following:
Section
7.1 Receipt
of Documents.
Buyer shall deliver to the Selling Parties the items specified in Section
2.2(b),
in each
case duly executed and dated the Closing Date.
Section
7.2 Consents
and Approvals.
All
consents, waivers, authorizations and approvals set forth on Schedule
4.4
shall
have been duly obtained and shall be in full force and effect on the Closing
Date.
Section
7.3 Contemporaneous
Closing Under the GP LLC Interest Agreement.
The
Selling Parties’ conditions to closing under the GP LLC Interest Agreement shall
have been satisfied or waived by the Selling Parties and Buyer shall be standing
ready to deliver the purchase price for the limited liability interests
thereunder to the Selling Parties in accordance with the terms of the GP LLC
Interest Agreement. The Buyer shall, and shall have caused its Affiliates to,
enter into an acknowledgement of termination of the Omnibus Agreement in the
form attached hereto as Exhibit
7.3.
ARTICLE
VIII
[RESERVED]
ARTICLE
IX
SURVIVAL;
INDEMNIFICATION
Section
9.1 Survival.
(a) The
representations and warranties of the Selling Parties contained herein or in
any
certificates or other documents delivered pursuant to this Agreement on the
Closing Date shall survive the Closing for a period of six (6) months following
the Closing Date; provided
however,
that
the representations and warranties set forth in Section
3.2
(Title),
Section
3.3
(Validity of Agreement; Authorization), and Section
3.6
(Brokers) shall survive indefinitely. The covenants and agreements in this
Article
IX
shall
survive the Closing and shall remain in full force and effect for such period
as
is necessary to resolve any claim made with respect to any representation,
warranty, covenant or agreement contained herein during the survival period
thereof, and the covenants and agreements of the Parties contained in
Article
V
and
Article
X
of this
Agreement shall survive the Closing for (x) the time period(s) set forth in
the
respective Sections contained in such Articles, or (y) if no time period is
so
specified, without any contractual limitation on the period of
survival.
(b) The
representations and warranties of Buyer contained herein or in any certificates
or documents delivered pursuant to this Agreement on the Closing Date shall
survive the Closing for a period of six (6) months following the Closing Date;
provided,
however,
that
the representations and warranties set forth in Section
4.2
(Validity of Agreement; Authorization) and Section
4.5
(Brokers) shall survive indefinitely.
Section
9.2 Indemnification
Coverage.
(a) From
and
after the Closing, the Selling Parties shall indemnify and defend, save and
hold
Buyer, the Partnership Entities and their Affiliates and each of their officers,
directors, employees and agents (collectively, the “Buyer
Indemnified Parties”)
harmless if any such Buyer Indemnified Party shall suffer any damage, judgment,
fine, penalty, demand, settlement, liability, loss, cost, tax, expense
(including reasonable attorneys’, consultants’ and experts’ fees), claim or
cause of action (each, a “Loss,”
and
collectively, “Losses”)
arising out of, relating to or resulting from:
9
(i) any
breach or inaccuracy in any representation by the Selling Parties or the breach
of any warranty by the Selling Parties contained in this Agreement or any
certificates or other documents delivered pursuant to this Agreement at the
Closing; and
(ii) any
failure by the Selling Parties to perform or observe any term, provision,
covenant, or agreement on the part of the Selling Parties to be performed or
observed under this Agreement.
(b) From
and
after the Closing, Buyer shall indemnify and defend, save and hold the Selling
Parties and their Affiliates and each of their officers, directors, employees
and agents (collectively, the “Seller
Indemnified Parties”)
harmless if any such Seller Indemnified Party shall suffer any Loss arising
out
of, relating to or resulting from:
(i) any
breach or inaccuracy in any representation by Buyer or the breach of any
warranty by Buyer contained in this Agreement or any certificates or other
documents delivered pursuant to this Agreement at the Closing; and
(ii) any
failure by Buyer to perform or observe any term, provision, covenant, or
agreement on the part of Buyer to be performed or observed under this
Agreement.
(c) The
foregoing indemnification obligations shall be subject to the following
limitations:
(i) the
amount of any Losses suffered by a Seller Indemnified Party or a Buyer
Indemnified Party, as the case may be (such party seeking indemnification
pursuant to this Article
IX,
the
“Indemnified
Party,”
and
the other party, the “Indemnifying
Party”),
shall
be reduced by any third-party insurance, third-party recoveries and available
tax benefits received or realizable by the Indemnified Party through its
commercially reasonable efforts in respect of or as a result of such Losses.
The
Indemnified Party shall use commercially reasonable efforts to collect any
amounts available under such insurance coverage and from such other third-party
alleged to have responsibility and to realize any available tax
benefits;
(ii) no
claim
may be asserted nor may any action be commenced against any party for breach
or
inaccuracy of any representation or breach of a warranty, unless written notice
of such claim or action is received by the other party describing in reasonable
detail the facts and circumstances with respect to the subject matter of such
claim or action on or prior to the date on which the representation or warranty
on which such claim or action is based ceases to survive as set forth in
Section
9.1;
and
10
(iii) no
Indemnified Party shall be entitled under this Agreement to multiple recovery
for the same Losses.
Section
9.3 Procedures.
Any
Indemnified Party shall notify the Indemnifying Party (with reasonable detail)
promptly after it becomes aware of facts supporting a claim or action for
indemnification under this Article
IX,
and
shall provide to the Indemnifying Party as soon as practicable thereafter all
information and documentation necessary to support and verify any Losses
associated with such claim or action. Subject to Section
9.2(c)(ii),
the
failure to so notify or provide information to the Indemnifying Party shall
not
relieve the Indemnifying Party of any liability that it may have to any
Indemnified Party, except to the extent that the Indemnifying Party demonstrates
that it has been materially prejudiced by the Indemnified Party’s failure to
give such notice, in which case the Indemnifying Party shall be relieved from
its obligations hereunder to the extent of such material prejudice. The
Indemnifying Party shall participate in and defend, contest or otherwise protect
the Indemnified Party against any such claim or action by counsel of the
Indemnifying Party’s choice at its sole cost and expense; provided,
however,
that
the Indemnifying Party shall not make any settlement or compromise without
the
prior written consent of the Indemnified Party (which consent shall not be
unreasonably withheld or delayed) unless the sole relief provided is monetary
damages that are paid in full by the Indemnifying Party. The Indemnified Party
shall have the right, but not the obligation, to participate at its own expense
in the defense thereof by counsel of the Indemnified Party’s choice and shall in
any event use its reasonable best efforts to cooperate with and assist the
Indemnifying Party. If the Indemnifying Party fails timely to defend, contest
or
otherwise protect against such suit, action, investigation, claim or proceeding,
the Indemnified Party shall have the right to do so, including, without
limitation, the right to make any compromise or settlement thereof, and the
Indemnified Party shall be entitled to recover the entire cost thereof from
the
Indemnifying Party, including, without limitation, reasonable attorneys’ fees,
disbursements and amounts paid as the result of such suit, action,
investigation, claim or proceeding.
Section
9.4 Waiver
of Consequential, Etc., Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE FULLEST
EXTENT PERMITTED BY LAW, BUYER SHALL NOT BE LIABLE TO ANY OF THE SELLER
INDEMNIFIED PARTIES, NOR SHALL ANY OF THE SELLING PARTIES BE LIABLE TO ANY
OF
BUYER INDEMNIFIED PARTIES, FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT,
CONSEQUENTIAL, REMOTE, OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITATION,
ANY DAMAGES ON ACCOUNT OF LOST PROFITS OR OPPORTUNITIES) RESULTING FROM OR
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section
9.5 Compliance
with Express Negligence Rule.
TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RELEASES, DISCLAIMERS, LIMITATIONS ON
LIABILITY, AND INDEMNITIES IN THIS AGREEMENT, INCLUDING THOSE IN THIS
ARTICLE
IX,
SHALL
APPLY EVEN IN THE EVENT OF THE SOLE, JOINT, AND/OR CONCURRENT NEGLIGENCE, STRICT
LIABILITY, OR OTHER FAULT OF THE PARTY WHOSE LIABILITY IS RELEASED, DISCLAIMED,
LIMITED, OR INDEMNIFIED.
11
Section
9.6 Remedy.
Except
for seeking equitable relief under Section
10.11
or
otherwise for actions involving fraud, from and after the Closing the sole
remedy of a party in connection with (i) a breach or inaccuracy of the
representations, or breach of warranties, in this Agreement or any certificates
or other documents delivered pursuant to this Agreement on Closing, or (ii)
any
failure by a party to perform or observe any term, provision, covenant, or
agreement on the part of such party to be performed or observed under this
Agreement, shall, in each case, be as set forth in this Article
IX.
Section
9.7 Tax
Treatment of Indemnity Payments.
Each
party, to the extent permitted by applicable law, agrees to treat any payments
made pursuant to this Article
IX
as
adjustments to the Purchase Price for all federal and state income and franchise
tax purposes.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
Section
10.1 Publicity.
On the
Closing Date, the parties will consult in good faith with respect to the
issuance of any press release or announcement to be made on the Closing Date
with respect to the transactions contemplated hereby.
Section
10.2 Successors
and Assigns; No Third Party Beneficiaries.
This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and permitted assigns; provided, however, that
no party shall assign or delegate any of the obligations created under this
Agreement without the prior written consent of the other party. Except as
contemplated by Article
IX,
nothing
in this Agreement shall confer upon any Person not a party to this Agreement,
or
the legal representatives of such Person, any rights or remedies of any nature
or kind whatsoever under or by reason of this Agreement.
Section
10.3 Investment
Bankers, Financial Advisors, Brokers and Finders.
(a) The
Selling Parties shall indemnify and agree to defend and hold Buyer and the
Partnership Entities harmless against and in respect of all claims, Losses,
liabilities, fees, costs and expenses which may be asserted against Buyer (or
any Affiliate of Buyer) and the Partnership Entities by any broker or other
person who claims to be entitled to an investment banker’s, financial advisor’s,
broker’s, finder’s or similar fee or commission in respect of the execution of
this Agreement or the consummation of the transactions contemplated hereby,
by
reason of his acting at the request of Seller Parent, the Selling Parties or
the
Partnership Entities.
(b) Buyer
shall indemnify and agree to save and hold the Selling Parties (and their
Affiliates) harmless against and in respect of all claims, Losses, liabilities,
fees, costs and expenses which may be asserted against any of the Selling
Parties (or any of their Affiliates) by any broker or other person who claims
to
be entitled to an investment banker’s, financial advisor’s, broker’s, finder’s
or similar fee or commission in respect of the execution of this Agreement
or
the consummation of the transactions contemplated hereby, by reason of his
acting at the request of Buyer.
Section
10.4 Fees
and Expenses.
Except
as otherwise expressly provided in this Agreement, all legal, accounting and
other fees, costs and expenses of a party hereto incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs or expenses.
12
Section
10.5 Notices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given or made if delivered
personally or sent by overnight courier or sent by facsimile (with evidence
of
confirmation of receipt) to the parties at the following addresses:
(a) If
to
Buyer, to:
510
Xxxxx
Xxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx X. Xxxxxxxx
with
a
copy (which shall not constitute notice to a party) to:
Xxxxxx
& Xxxxxx LLP
1000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx X. Xxxxx
and
a
copy to:
Xxxxxx
& Xxxxxx L.L.P.
660
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxx and Xxxxxxx X. Xxxxxx
(b) If
to the
Selling Parties, to:
Provident
Energy Trust
2100,
000
- 0xx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X XC0
Xxxxxx
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxx
with
a
copy (which shall not constitute notice to a party) to:
Xxxxxxx
Xxxxx LLP
600
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
Attention:
G. Xxxxxxx X’Xxxxx and Xxxx Xxxxx
or
to
such other Persons or at such other addresses as shall be furnished by any
party
by like notice to the other, and such notice or communication shall be deemed
to
have been given or made as of the date so delivered or mailed. No change in
any
of such addresses shall be effective insofar as notices under this Section
10.5
are
concerned unless such changed address is located in the United States of America
or Canada and notice of such change shall have been given to such other party
hereto as provided in this Section
10.5.
13
Section
10.6 Entire
Agreement.
This
Agreement, together with the Disclosure Schedules and exhibits hereto, and
the
Transaction Documents represent the entire agreement and understanding of the
parties with reference to the transactions set forth herein and therein and
no
representations or warranties have been made in connection herewith and
therewith other than those expressly set forth herein or therein. This
Agreement, together with the Disclosure Schedules and exhibits hereto, and
the
Transaction Documents supersede all prior negotiations, discussions,
correspondence, communications, understandings and agreements between the
parties relating to the subject matter hereof or thereof and all prior drafts
of
such documents, all of which are merged into such documents. No prior drafts
of
such documents and no words or phrases from any such prior drafts shall be
admissible into evidence in any action or suit involving such
documents.
Section
10.7 Amendments.
This
Agreement may be amended, modified or supplemented only by a written instrument
executed by the parties hereto.
Section
10.8 Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
Section
10.9 Titles
and Headings.
The
Article and Section headings and any table of contents contained in this
Agreement are solely for convenience of reference and shall not affect the
meaning or interpretation of this Agreement or of any term or provision
hereof.
Section
10.10 Signatures
and Counterparts.
Facsimile transmission of any signed original document and/or retransmission
of
any signed facsimile transmission shall be the same as delivery of an original.
At the request of Buyer or the Selling Parties, the parties will confirm
facsimile transmission by signing a duplicate original document. This Agreement
may be executed in two or more counterparts, each of which shall be deemed
an
original and all of which together shall be considered one and the same
agreement.
Section
10.11 Enforcement
of the Agreement; Damages.
The
parties hereto agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall, to the fullest extent permitted by law, be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereto, this being in addition to any
other remedy to which they are entitled at law or in equity.
14
Section
10.12 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
and
substantive laws of the State of Delaware and without regard to any conflicts
of
laws concepts that would apply the substantive law of some other jurisdiction.
EACH OF THE PARTIES HERETO AGREES THAT THIS AGREEMENT INVOLVES AT LEAST U.S.
$100,000.00 AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN EXPRESS RELIANCE
UPON 6 Del.
C.§
2708.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY CONFIRMS AND AGREES
THAT IT IS AND SHALL CONTINUE TO BE (i) SUBJECT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF DELAWARE, AND (ii) SUBJECT TO SERVICE OF PROCESS IN
THE
STATE OF DELAWARE.
Section
10.13 Disclosure.
Certain
information set forth in the Disclosure Schedules is included solely for
informational purposes, is not an admission of liability with respect to the
matters covered by the information, and may not be required to be disclosed
pursuant to this Agreement. Each Schedule in the Disclosure Schedules shall
be
deemed to include and incorporate all disclosures made in other schedules in
the
Disclosure Schedules. The specification of any dollar amount in the
representations and warranties contained in this Agreement or the inclusion
of
any specific item in the Disclosure Schedules is not intended to imply that
such
amounts (or higher or lower amounts) are or are not material, and no party
shall
use the fact of the setting of such amounts or the fact of the inclusion of
any
such item in the Disclosure Schedules in any dispute or controversy between
the
parties as to whether any obligation, item, or matter not described herein
or
included in a Disclosure Schedule is or is not material for purposes of this
Agreement.
Section
10.14 Consent
to Jurisdiction.
To the
fullest extent permitted by law, the parties hereby irrevocably submit to the
jurisdiction of the courts of the State of Delaware and the federal courts
of
the United States of America located in Delaware over any dispute arising out
of
or relating to this Agreement or any of the transactions contemplated hereby,
and each party irrevocably agrees that all claims in respect of such dispute
or
proceeding shall be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the venue of any dispute
arising out of or relating to this Agreement or any of the transactions
contemplated hereby brought in such court or any defense of inconvenient forum
for the maintenance of such dispute. Each party agrees that a judgment in any
dispute heard in the venue specified by this section may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable law.
15
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
|
SELLING
PARTIES:
|
|
|
PRO
LP CORP.
|
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx
|
|
Name:
Xxxxxx X. Xxxxxxxx
|
|
|
Title:
President
|
|
|
PRO
GP CORP.
|
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx
|
|
Name:
Xxxxxx X. Xxxxxxxx
|
|
|
Title:
President
|
|
|
BUYER:
|
|
|
By:
|
BreitBurn
GP LLC, its general partner
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx
|
|
Name:
Xxxxxxx X. Xxxxxxxx
|
|
|
Title:
Co-Chief Executive Officer
|
|
[Signature
Page to BreitBurn Energy Partners L.P. Common Units PSA]
