EXHIBIT 10.3
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
This Contribution, Conveyance and Assumption Agreement (this
"Agreement") dated effective as of [o], 2002, is entered into by and among
Xxxxxx Resource Management Corporation, a Texas corporation ("MRMC"), Xxxxxx
Resource LLC, a Delaware limited liability company ("Xxxxxx LLC"), Xxxxxx
Midstream GP LLC, a Delaware limited liability company (the "GP"), Xxxxxx
Midstream Partners L.P., a Delaware limited partnership (the "MLP"), Xxxxxx
Operating GP LLC, a Delaware limited liability company (the "Operating GP"),
Xxxxxx Operating Partnership L.P., a Delaware limited partnership (the
"Operating Partnership"), Xxxxxx Gas Marine LLC, a Texas limited liability
company ("Marine LLC"), Xxxxxx Resources, Inc., a Texas corporation
("Resources"), Xxxxxx X.X. Gas, Inc., a Texas corporation ("MLP Gas"), Xxxxxx
Gas Sales LLC, a Texas limited liability company ("MGSLLC"), Xxxxxx Transport,
Inc., a Texas corporation ("Transport"), XX Xxxxxx Sulphur Holding Corporation,
a Nevada corporation ("CFM-SHC"), and Midstream Fuel Service LLC, an Alabama
limited liability company ("Midstream LLC").
RECITALS
WHEREAS, prior to the date hereof, MRMC formed Xxxxxx LLC, as
a wholly-owned direct subsidiary, which in turn formed the GP, and contributed
$1,000 to it as a capital contribution in exchange for all of the membership
interests in the GP;
WHEREAS, in turn Xxxxxx LLC and the GP formed the MLP, with
the GP contributing $20 to it as a capital contribution in exchange for a 2%
general partner interest and Xxxxxx LLC contributing $980 to it as a capital
contribution in exchange for a 98% limited partner interest in the MLP;
WHEREAS, in turn Xxxxxx LLC formed the Operating GP, and
contributed $1,000 to it as a capital contribution in exchange for all of the
membership interests in the Operating GP;
WHEREAS, in turn Xxxxxx LLC and the Operating GP formed the
Operating Partnership, with the Operating GP contributing $1.00 in exchange for
a 0.1% general partner interest and Xxxxxx LLC contributing $999.0 in exchange
for a 99.9% limited partner interest in the Operating Partnership;
WHEREAS, Xxxxxx Gas Sales, Inc., a Texas corporation,
converted under Texas law into MGSLLC;
WHEREAS, Midstream Fuel Services, Inc., an Alabama
corporation, converted under Alabama law into Midstream LLC;
WHEREAS, Xxxxxx Gas Marine, Inc., a Texas corporation,
converted under Texas law into Marine LLC;
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WHEREAS, each of the following transactions shall occur as of
12:01 A.M. Eastern Time on the date (the "Contribution Effective Time") that is
two days prior to the day of the closing of the offering of Common Units of the
MLP (the "Closing"):
1. MRMC will contribute all of the outstanding membership
interests in Marine LLC (the "Marine Interest") and all of the outstanding
common stock of Resources (the "Resources Common Stock") to Xxxxxx LLC as a
capital contribution.
2. MGSLLC will contribute all of the outstanding common stock
(the "MLP Gas Common Stock") of MLP Gas to the Operating Partnership in exchange
for a [o]% limited partner interest in the Operating Partnership;
3. Xxxxxx LLC will contribute the Marine Interest and the
Resources Common Stock to the Operating Partnership in exchange for a [o]%
limited partner interest in the Operating Partnership;
4. The Operating Partnership will cause each of Resources and
MLP Gas to merge with and into the Operating Partnership, with the Operating
Partnership being the surviving entity.
5. MGSLLC will contribute to the Operating Partnership (i)
certain LPG Assets, as set forth in the Xxxx of Sale described in Section 2.10
below, (ii) the [rail rack], (iii) all assets and property at MGSLLC's facility
at 0000 Xxxxxxx Xxxxx Road, including that certain Ground Lease Agreement
between MGSI and the Tampa Port Authority, (iv) the [Stanolind Terminal]
(collectively, the "LPG Assets") in exchange for a [o]% limited partner interest
in the Operating Partnership;
6. Midstream LLC will contribute to the Operating Partnership
those assets set forth in the Xxxx of Sale described in Section 2.7 below
(collectively, the "Tenn-Xxx Towing Assets") in exchange for a [o]% limited
partner interest in the Operating Partnership;
7. Marine LLC will transfer to the Operating Partnership (i) a
25.030% interest in XX Xxxxxx Sulphur L.L.C. and (ii) certain office equipment
and vehicles (the "Marine Retained Equipment"), as more fully described in a
Xxxx of Sale to be executed by Marine LLC in favor of the Operating partnership
(the "Marine Retained Equipment Xxxx of Sale"). All of the assets and properties
described in this recital are collectively referred to herein as the "Marine
Retained Assets";
8. The Operating Partnership will distribute to Xxxxxx LLC
(i)(A) the Marine Retained Assets, (B) certain assets and equipment as more
fully described in a Xxxx of Sale to be executed by the Operating Partnership in
favor of Xxxxxx LLC (the "Retained Assets Xxxx of Sale"), that the Operating
Partnership received in the merger with MLP Gas described above, and (ii)(A) a
50% limited partner interest in Continental Sulphur [L.P.], (B) the lease for
the facility located in Hondo, Texas, together with all of the improvements and
assets located at such location, all as to be more fully described in an
Assignment of Lease and Xxxx of Sale to be
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executed by the Operating Partnership in favor of Xxxxxx LLC (collectively, the
"Hondo Conveyance Documents"), and (C) the real estate, improvements and assets
comprising the facility located at Troy, Alabama, all as to be more fully
described in a Special Warranty Deed and Xxxx of Sale to be executed by the
Operating Partnership in favor of Xxxxxx LLC (collectively, the "Xxxx Conveyance
Documents"). All of the assets and properties described in this recital are
collectively referred to herein as the "Retained Assets";
9. Transport shall sell the 7.3 shares of the Common Stock of
CFM-SHC (the "Transport Owned Shares") held by Transport to MGSLLC in exchange
for either (i) [o] shares of the Common Stock of MRMC, or (ii) $[o] in cash;
WHEREAS, each of the following transactions shall occur as of
12:01 am Eastern Time on the date (the "Dissolution Effective Time") that is one
day prior to the day of the Closing:
1. Marine LLC and MGSLLC shall cause CFM-SHC to dissolve under
the laws of Nevada, and in such dissolution, CFM-SHC shall distribute its
assets, including its 49.5% limited partner interest in XX Xxxxxx Sulphur L.P.,
on a pro rata basis to Marine LLC and MGSLLC;
2. MGSLLC shall contribute the interest in XX Xxxxxx Sulphur
L.P. that it received upon the dissolution of CFM-SHC to the Operating
Partnership in exchange for a [o]% limited partner interest in the Operating
Partnership;
WHEREAS, each of the following transactions shall occur as of
12:01 A.M. Eastern Time on the Closing (the "Closing Day Effective Time"):
1. MGSLLC will contribute its [o]% limited partner interest in
the Operating Partnership to the MLP in exchange for [o] Subordinated Units;
2. Midstream LLC will contribute its [o]% limited partner
interest in the Operating Partnership to the MLP in exchange for [o]
Subordinated Units;
3. Xxxxxx LLC will contribute (i) a [o]% limited partner interest in the
Operating Partnership to the GP as a capital contribution, (ii) a [o]% limited
partner interest in the Operating Partnership to the MLP in exchange for [o]
subordinated units of the MLP representing limited partner interests in the MLP
("Subordinated Units"), and (iii) all of its interest in the Operating GP to the
MLP in exchange for [o] Subordinated Units;
4. The GP will contribute the [o]% limited partner interest in
the Operating Partnership it received from Xxxxxx LLC to the MLP in exchange for
(a) a continuation of its 2% general partner interest in the MLP and (b) the
issuance of incentive distribution rights to the GP;
5. The MLP will redeem the original 98% limited partner
interest in the MLP held by Xxxxxx LLC for $980 in cash.
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6. The Operating Partnership will cause Marine LLC to merge
with and into the Operating Partnership, with the Operating Partnership being
the Surviving Entity.
NOW, THEREFORE, in consideration of their mutual undertakings
and agreements hereunder, the parties to this Agreement undertake and agree as
follows:
ARTICLE I
RECORDATION
SECTION 1.1 RECORDATION OF EVIDENCE OF OWNERSHIP OF ASSETS. In
connection with the conveyances and mergers that are referred to in the recitals
to this Agreement, the parties to this Agreement acknowledge that certain
jurisdictions in which the assets of the applicable parties to such conveyances
and mergers are located may require that documents be recorded by the entities
resulting from such conveyances and mergers in order to evidence title to the
assets owned by such entities. All such documents shall evidence such new
ownership and are not intended to modify, and shall not modify, any of the
terms, covenants and conditions herein set forth.
ARTICLE II
MERGERS, CONTRIBUTIONS AND DISTRIBUTIONS OF VARIOUS ASSETS
SECTION 2.1 CONTRIBUTION OF MARINE INTEREST AND RESOURCES
COMMON STOCK BY MRMC TO XXXXXX LLC. At the Contribution Effective Time, MRMC
hereby grants, contributes, transfers, assigns and conveys to Xxxxxx LLC, its
successors and assigns, all right, title and interest in and to (i) the Marine
Interest and (ii) the Resources Common Stock as a capital contribution.
SECTION 2.2 CONTRIBUTION OF MLP GAS COMMON STOCK TO THE
OPERATING PARTNERSHIP. At the Contribution Effective Time, MGSLLC hereby grants,
contributes, transfers, assigns and conveys to the Operating Partnership, its
successors and assigns, all right, title and interest in and to the MLP Gas
Common Stock in exchange for a [o] % limited partner interest in the Operating
Partnership.
SECTION 2.3 CONTRIBUTION OF MARINE INTEREST AND RESOURCES
COMMON STOCK TO THE OPERATING PARTNERSHIP. At the Contribution Effective Time,
Xxxxxx LLC hereby grants, contributes, transfers, assigns and conveys to the
Operating Partnership, its successors and assigns, all right, title and interest
in and to (i) the Marine Interest and (ii) the Resources Common Stock in
exchange for a [o] % limited partner interest in the Operating Partnership.
SECTION 2.4 MERGER OF RESOURCES INTO THE OPERATING
PARTNERSHIP. Pursuant to the Agreement and Plan of Merger attached hereto as
Exhibit A, at the Contribution Effective Time, the Operating Partnership shall
cause Resources to merge with and into the Operating Partnership, with the
Operating Partnership being the surviving entity.
SECTION 2.5 MERGER OF MLP GAS INTO THE OPERATING PARTNERSHIP.
Pursuant to the Agreement and Plan of Merger attached hereto as Exhibit B, at
the Contribution Effective
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Time, the Operating Partnership shall cause MLP Gas to merge with and into the
Operating Partnership, with the Operating Partnership being the surviving
entity.
SECTION 2.6 CONTRIBUTION OF LPG ASSETS BY MGSLLC TO THE
OPERATING PARTNERSHIP. At the Contribution Effective Time, MGSLLC hereby grants,
contributes, transfers, assigns and conveys to the Operating Partnership, its
successors and assigns, all right, title and interest in and to the LPG Assets,
and the Operating Partnership hereby accepts the LPG Assets in exchange for a
[o]% limited partner interest in the Operating Partnership. In order to give
full effect to the foregoing grant, contribution, transfer, assignment and
conveyance, MGSLLC, as grantor, and the Operating Partnership, as grantee, shall
execute a Xxxx of Sale in the form attached hereto as Exhibit C together with
such other bills of sale, special warranty deeds, conveyances or other documents
required to transfer the LPG Assets in the jurisdictions in which they are
located.
SECTION 2.7 CONTRIBUTION OF TENN-XXX TOWING ASSETS BY
MIDSTREAM LLC TO THE OPERATING PARTNERSHIP. At the Contribution Effective Time,
Midstream LLC hereby grants, contributes, transfers, assigns and conveys to the
Operating Partnership, its successors and assigns, all right, title and interest
in and to the Tenn-Xxx Towing Assets, and the Operating Partnership hereby
accepts the Tenn-Xxx Towing Assets in exchange for a [o]% limited partner
interest in the Operating Partnership. In order to give full effect to the
foregoing grant, contribution, transfer, assignment and conveyance, Midstream
LLC, as grantor, and the Operating Partnership, as grantee, shall execute a Xxxx
of Sale in the form attached hereto as Exhibit D together with any other bills
of sale, conveyances or other documents required by the United States Department
of Transportation or the United States Coast Guard to transfer the Tenn-Xxx
Towing Assets.
SECTION 2.8 DISTRIBUTION OF THE MARINE RETAINED ASSETS BY
MARINE LLC TO THE OPERATING PARTNERSHIP. At the Contribution Effective Time,
Marine LLC hereby grants, distributes, transfers, assigns and conveys to the
Operating Partnership, its successors and assigns, all right, title, and
interest in and to the Marine Retained Assets. In order to give effect to the
foregoing grant, distribution, transfer, assignment and conveyance, Marine LLC,
as grantor, and the Operating Partnership, as grantee, shall execute (i) such
assignment documents as are necessary to transfer the 25.030% interest in XX
Xxxxxx Sulphur L.L.C. and (ii) the Marine Retained Equipment Xxxx of Sale,
together with any other bills of sale, conveyances or other documents as are
necessary to transfer the Marine Retained Assets to the Operating Partnership.
SECTION 2.9 DISTRIBUTION OF THE RETAINED ASSETS BY THE
OPERATING PARTNERSHIP TO XXXXXX LLC. At the Contribution Effective Time, the
Operating Partnership hereby grants, distributes, transfers, assigns and conveys
to Xxxxxx LLC, its successors and assigns, all right, title, and interest in and
to the Retained Assets in exchange for the redemption of a [o]% limited partner
interest in the Operating Partnership held by Xxxxxx LLC. In order to give full
effect to the foregoing grant, distribution, transfer, assignment and
conveyance, the Operating Partnership, as grantor, and Xxxxxx LLC, as grantee,
shall execute (i) such assignment documents as are necessary to transfer the
25.030% interest in XX Xxxxxx Sulphur L.L.C., (ii) the Retained Assets Xxxx of
Sale, (iii) the Hondo Conveyance Documents, and (iv) the Xxxx
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Conveyance Documents, together with any other bills of sale, conveyances or
other documents as are necessary to transfer the Retained Assets.
SECTION 2.10 PURCHASE OF TRANSPORT OWNED SHARES BY MGSLLC FROM
TRANSPORT. At the Contribution Effective Time, Transport hereby grants,
contributes, transfers, assigns and conveys to MGSLLC, its successors and
assigns, all right, title and interest in an to the Transport Owned Shares in
exchange for either (i) [o] shares of the Common Stock of MRMC, or (ii) $[o] in
cash.
SECTION 2.11 DISSOLUTION AND LIQUIDATION OF CFM-SHC. At the
Dissolution Effective Time, CFM-SHC shall liquidate, and hereby grants,
distributes, transfers, assigns and conveys to each of Marine LLC and MGSLLC,
their successors and assigns, on a pro-rata basis in accordance with the
percentage ownership that each of Marine LLC and MGSLLC hold in CFM-SHC, all
right, title and interest in and to all assets held by CFM-SHC, including its
49.5% limited partner interest in XX Xxxxxx Sulphur L.P.
SECTION 2.12 CONTRIBUTION OF XX XXXXXX SULPHUR L.P. LIMITED
PARTNER INTEREST BY MGSLLC TO THE OPERATING PARTNERSHIP. At the Dissolution
Effective Time, MGSLLC hereby grants, contributes, transfers, assigns and
conveys to the Operating Partnership, its successors and assigns, all right,
title and interest in an to the limited partner interest in XX Xxxxxx Sulphur
L.P. that it received pursuant to Section 2.11 in exchange for a [o]% limited
partner interest in the Operating Partnership.
SECTION 2.13 CONTRIBUTION OF OPERATING PARTNERSHIP INTEREST BY
MGSLLC TO THE MLP. At the Closing Day Effective Time, MGSLLC hereby grants,
contributes, transfers, assigns and conveys to the MLP, its successors and
assigns, all right, title and interest of MGSLLC in and to all of its [o]%
limited partner interest in the Operating Partnership in exchange for [o]
Subordinated Units of the MLP.
SECTION 2.14 CONTRIBUTION OF OPERATING PARTNERSHIP INTEREST BY
MIDSTREAM LLC TO THE MLP. At the Closing Day Effective Time, Midstream LLC
hereby grants, contributes, transfers, assigns and conveys to the MLP, its
successors and assigns, all right, title and interest of Midstream LLC in and to
its [o]% limited partner interest in the Operating Partnership in exchange for
[o] Subordinated Units of the MLP.
SECTION 2.15 CONTRIBUTION OF OPERATING PARTNERSHIP INTEREST BY
XXXXXX LLC TO THE GP. At the Closing Day Effective Time, Xxxxxx LLC hereby
grants, contributes, transfers, assigns and conveys to the GP, its successors
and assigns, all right, title and interest of Xxxxxx LLC in and to a [o]%
limited partner interest in the Operating Partnership as a contribution to the
capital of the GP.
SECTION 2.16 CONTRIBUTION OF OPERATING PARTNERSHIP INTEREST BY
THE GP TO THE MLP. At the Closing Day Effective Time, the GP hereby grants,
contributes, transfers, assigns and conveys to the MLP, its successors and
assigns, all right, title and interest of the GP in and to the [o]% limited
partner interest in the Operating Partnership that it received from Xxxxxx LLC
(following the transaction set forth in Section 2.15 above) in exchange for (a)
a
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continuation of its 2% general partner interest in the MLP and (b) the issuance
to it by the MLP of [o] incentive distribution rights under the First Amended
and Restated Agreement of Limited Partnership of the MLP.
SECTION 2.17 CONTRIBUTION OF OPERATING PARTNERSHIP INTEREST
AND THE OPERATING GP INTEREST BY XXXXXX LLC TO THE MLP. At the Closing Day
Effective Time, Xxxxxx LLC hereby grants, contributes, transfers, assigns and
conveys to the MLP, its successors and assigns, all right, title and interest of
Xxxxxx LLC in and to (a) all of the remaining [o]% limited partner interest in
the Operating Partnership held by Xxxxxx LLC and (b) the 100% membership
interest in the Operating GP held by Xxxxxx LLC to the MLP in exchange for [o]
Subordinated Units of the MLP.
SECTION 2.18 REDEMPTION OF XXXXXX LLC'S LIMITED PARTNER
INTEREST IN THE MLP. At the Closing Day Effective Time, the MLP hereby redeems
from Xxxxxx LLC all of Xxxxxx LLC's original 98% limited partner interest in the
MLP (exclusive of any Subordinated Units or other interests that Xxxxxx LLC has
received pursuant to the terms of this Article II), and in exchange therefore,
the MLP hereby pays to Xxxxxx LLC $980 in cash.
SECTION 2.19 MERGER OF MARINE LLC INTO THE OPERATING
PARTNERSHIP. Pursuant to the Agreement and Plan of Merger attached hereto as
Exhibit E, at the effective time set forth in such Agreement and Plan of Merger,
the Operating Partnership shall cause Marine LLC to merge with and into the
Operating Partnership, with the Operating Partnership being the surviving
entity.
ARTICLE III
ASSUMPTION OF CERTAIN LIABILITIES
SECTION 3.1 ASSUMPTION OF LIABILITIES AND OBLIGATIONS BY THE
OPERATING PARTNERSHIP AND THE MLP.
(a) In connection with the contribution of the Tenn-Xxx Towing
Assets by Midstream LLC and the LPG Assets by MGSLLC to the Operating
Partnership, as well as all of the assets (other than the Retained
Assets) acquired by the Operating Partnership in connection with the
mergers of Marine LLC, Resources and MLP Gas into the Operating
Partnership, the Operating Partnership hereby assumes and agrees to
duly and timely pay, perform and discharge all obligations and
liabilities incurred with respect to the Contributed Assets, that arise
from and after the date of this Agreement, to the full extent that
either Midstream LLC, MGSLLC, Marine LLC, Resources or MLP Gas would
have been obligated to pay, perform and discharge such obligations and
liabilities in the future, were it not for the execution and delivery
of this Agreement; provided, however, that said assumption and
agreement to duly and timely pay, perform and discharge such
obligations and liabilities shall not increase the obligation of the
Operating Partnership with respect to such obligations and liabilities
beyond that of any of Midstream as to the Tenn-Xxx Towing Assets,
MGSLLC as to the LPG Assets, or Marine LLC, Resources or MLP Gas as to
the assets (other than the Retained Assets) acquired by the Operating
Partnership in connection with such mergers, to the extent of
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such interest conveyed by any of Midstream LLC, MGSLLC, Marine LLC,
Resources or MLP Gas. For purposes of this Agreement, the term
"Contributed Assets" shall mean, collectively, the Tenn-Xxx Towing
Assets, the LPG Assets, the Transport Owned Shares, and all of the
assets acquired by the Operating Partnership in connection with (i) any
of the contributions of member interests, stock or assets to the
Operating Partnership and (ii) any of the mergers of Marine LLC,
Resources and MLP Gas, but the Contributed Assets shall not include the
Retained Assets.
(b) In connection with the transfers of the Contributed Assets
to the Operating Partnership, and the transfers of the Operating
Partnership interests to the MLP, the Operating Partnership and the MLP
will assume the existing debt as set forth on Schedule 3.1 attached
hereto.
ARTICLE IV
TITLE MATTERS
SECTION 4.1 ENCUMBRANCES. The distributions of the Contributed
Assets in connection with the mergers of Marine LLC, Resources and MLP Gas into
the Operating Partnership, under this Agreement are made expressly subject to
all recorded and unrecorded liens, encumbrances, agreements, defects,
restrictions, adverse claim and all laws, rules, regulations, ordinances,
judgments and orders of governmental authorities or tribunals having or
asserting jurisdiction over the applicable Contributed Assets, and operations
conducted in connection therewith, in each case to the extent the same are valid
and enforceable and affect such Contributed Assets, including, without
limitation, (a) all matters that a current visual inspection of such Contributed
Assets would reflect, and (b) the liabilities assumed by the Operating
Partnership with respect to such Contributed Assets.
SECTION 4.2 Disclaimer of Warranties; Subrogation; Waiver of
Bulk Sales Laws.
(a) (i) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN
THIS AGREEMENT, THE MLP AND THE OPERATING PARTNERSHIP ACKNOWLEDGE AND
AGREE THAT MRMC, MIDSTREAM LLC, MGSLLC, MARINE LLC, RESOURCES, AND MLP
GAS HAVE NOT MADE, DO NOT MAKE, AND SPECIFICALLY NEGATE AND DISCLAIM,
ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS,
IMPLIED OR STATUTORY, ORAL OR WRITTEN, PAST OR PRESENT (ALL OF WHICH
ARE EXPRESSLY DISCLAIMED BY MRMC, MIDSTREAM LLC, MGSLLC, MARINE LLC,
RESOURCES AND MLP GAS), REGARDING (1) THE TITLE, VALUE, NATURE, QUALITY
OR CONDITION OF THE CONTRIBUTED ASSETS, (2) THE INCOME TO BE DERIVED
FROM THE CONTRIBUTED ASSETS, (3) THE SUITABILITY OF THE CONTRIBUTED
ASSETS FOR ANY AND ALL ACTIVITIES AND USES WHICH THE MLP MAY CONDUCT
THEREON, (4) THE COMPLIANCE OF OR BY THE CONTRIBUTED ASSETS, OR THEIR
OPERATIONS WITH ANY LAWS (INCLUDING WITHOUT LIMITATION ANY ZONING,
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS), OR (5) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE CONTRIBUTED ASSETS.
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(ii) THE MLP AND THE OPERATING PARTNERSHIP ACKNOWLEDGE AND
AGREE THAT THEY HAVE HAD THE OPPORTUNITY TO INSPECT THE CONTRIBUTED
ASSETS, AND THAT THEY ARE RELYING SOLELY ON THEIR OWN INVESTIGATION OF
THE CONTRIBUTED ASSETS, AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY MRMC, MIDSTREAM LLC, MGSLLC, MARINE LLC, RESOURCES OR MLP
GAS. MRMC, MIDSTREAM LLC, MGSLLC, MARINE LLC, RESOURCES AND MLP GAS ARE
NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE CONTRIBUTED ASSETS,
FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT OR THIRD PARTY.
(iii) THE MLP AND THE OPERATING PARTNERSHIP ACKNOWLEDGE THAT
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CONTRIBUTION OF THE
CONTRIBUTED ASSETS, AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS",
"WHERE IS" BASIS WITH ALL FAULTS AND THE CONTRIBUTED ASSETS, ARE
CONTRIBUTED OR DISTRIBUTED AND CONVEYED BY MIDSTREAM, MGSI, MARINE LLC,
RESOURCES AND MLP GAS SUBJECT TO THE FOREGOING. THIS PARAGRAPH SHALL
SURVIVE SUCH CONTRIBUTION OR DISTRIBUTION AND CONVEYANCE OR THE
TERMINATION OF THIS AGREEMENT.
(iv) THE PROVISIONS OF THIS SECTION 4.2 HAVE BEEN NEGOTIATED
BY MRMC, MIDSTREAM LLC, MGSLLC, MARINE LLC, RESOURCES, MLP GAS, THE MLP
AND THE OPERATING PARTNERSHIP AFTER DUE CONSIDERATION AND ARE INTENDED
TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR
WARRANTIES OF MRMC, MIDSTREAM LLC, MGSLLC, MARINE LLC, RESOURCES AND
MLP GAS, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE
CONTRIBUTED ASSETS, THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER
IN EFFECT, OR OTHERWISE.
(b) The distributions and contributions of the Contributed
Assets, made under this Agreement are made with full rights of
substitution and subrogation of the Operating Partnership, and all
persons claiming by, through and under the Operating Partnership, to
the extent assignable, in and to all covenants and warranties by the
predecessors-in-title of Midstream LLC, MGSLLC, Marine LLC, Resources
and MLP Gas, and with full subrogation of all rights accruing under
applicable statutes of limitation and all rights of action of warranty
against all former owners of the Contributed Assets.
(c) Midstream LLC, MGSLLC, Marine LLC, Resources, MLP Gas, the
MLP, the GP, the Operating Partnership and Operating GP agree that the
disclaimers contained in this Section 4.2 are "conspicuous"
disclaimers. Any covenants implied by statute or
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law by the use of the words "grant," "convey," "bargain," "sell,"
"assign," "transfer," "deliver," or "set over" or any of them or any
other words used in this Agreement or any exhibits hereto are hereby
expressly disclaimed, waived or negated.
(d) Each of the parties hereto hereby waives compliance with
any applicable bulk sales law or any similar law in any applicable
jurisdiction in respect of the transactions contemplated by this
Agreement. "Laws" means any and all laws, statutes, ordinances, rules
or regulations promulgated by a governmental authority, orders of a
governmental authority, judicial decisions, decisions of arbitrators or
determinations of any governmental authority or court.
ARTICLE V
FURTHER ASSURANCES
SECTION 5.1 FURTHER ASSURANCES. From time to time after the
date hereof, and without any further consideration, Midstream LLC, MGSLLC,
Xxxxxx LLC, the GP, the MLP, the Operating GP and the Operating Partnership
shall execute, acknowledge and deliver all such additional deeds, assignments,
bills of sale, conveyances, instruments, notices, releases, acquittances and
other documents, and will do all such other acts and things, all in accordance
with applicable law, as may be necessary or appropriate more fully and
effectively to vest in the Operating Partnership and the MLP and their
successors and assigns beneficial and record title to the Contributed Assets
hereby contributed and assigned to the Operating Partnership or intended so to
be and to more fully and effectively carry out the purposes and intent of this
Agreement.
SECTION 5.2 OTHER ASSURANCES. From time to time after the date
hereof, and without any further consideration, each of the parties to this
Agreement shall execute, acknowledge and deliver all such additional
instruments, notices and other documents, and will do all such other acts and
things, all in accordance with applicable law, as may be necessary or
appropriate to more fully and effectively carry out the purposes and intent of
this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 HEADINGS; REFERENCES; INTERPRETATION. All article
and section headings in this Agreement are for convenience only and shall not be
deemed to control or affect the meaning or construction of any of the provisions
hereof. The words "hereof," "herein" and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole,
including without limitation, all exhibits attached hereto, and not to any
particular provision of this Agreement. All references herein to articles,
sections, and exhibits shall, unless the context requires a different
construction, be deemed to be references to the articles, sections and exhibits
of this Agreement, respectively, and all such Exhibits attached hereto are
hereby incorporated herein and made a part hereof for all purposes. All personal
pronouns used in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders, and the singular shall include
the plural and vice versa. The use herein of the word "including" following any
general statement, term or matter shall not be construed to limit such
statement, term or matter to the specific items or matters set forth
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immediately following such word or to similar items or matters, whether or not
non-limiting language (such as "without limitation," "but not limited to," or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that could reasonably fall within
the broadest possible scope of such general statement, term or matter.
SECTION 6.2 SUCCESSORS AND ASSIGNS. The Agreement shall be
binding upon and inure to the benefit of the parties signatory hereto and their
respective successors and assigns.
SECTION 6.3 NO THIRD PARTY RIGHTS. The provisions of this
Agreement are intended to bind the parties signatory hereto as to each other and
are not intended to and do not create rights in any other person or confer upon
any other person any benefits, rights or remedies and no person is or is
intended to be a third party beneficiary of any of the provisions of this
Agreement.
SECTION 6.4 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which together shall constitute one agreement
binding on the parties hereto.
SECTION 6.5 GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Texas applicable
to contracts made and to be performed wholly within such state without giving
effect to conflict of law principles thereof, except to the extent that it is
mandatory that the law of some other jurisdiction, shall apply.
SECTION 6.6 SEVERABILITY. If any of the provisions of this
Agreement are held by any court of competent jurisdiction to contravene, or to
be invalid under, the laws of any political body having jurisdiction over the
subject matter hereof, such contravention or invalidity shall not invalidate the
entire Agreement. Instead, this Agreement shall be construed as if it did not
contain the particular provision or provisions held to be invalid, and an
equitable adjustment shall be made and necessary provision added so as to give
effect to the intention of the parties as expressed in this Agreement at the
time of execution of this Agreement.
SECTION 6.7 AMENDMENT OR MODIFICATION. This Agreement may be
amended or modified from time to time only by the written agreement of all the
parties hereto.
SECTION 6.8 INTEGRATION. This Agreement, together with that
certain Omnibus Agreement dated of even date herewith, to be entered into by and
among MRMC, certain of MRMC's subsidiaries, the MLP, the GP, the Operating
Partnership and the Operating GP (the "Omnibus Agreement"), supersedes all
previous understandings or agreements between the parties, whether oral or
written, with respect to its subject matter. This document is an integrated
agreement which contains the entire understanding of the parties. No
understanding, representation, promise or agreement, whether oral or written,
other than those contained in the Omnibus Agreement, is intended to be or shall
be included in or form part of this Agreement unless it is contained in a
written amendment hereto executed by the parties hereto after the date of this
Agreement.
11
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
XXXXXX RESOURCE MANAGEMENT CORPORATION
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX MIDSTREAM GP LLC
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX MIDSTREAM PARTNERS L.P.
By: XXXXXX MIDSTREAM GP LLC
By:
---------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX GAS MARINE LLC
By: Xxxxxx Resource LLC,
As Sole Member
By: Xxxxxx Resource Management
Corporation
As Sole Member
By:
----------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
12
XXXXXX RESOURCES, INC.
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX GAS SALES LLC
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX X.X. GAS, INC.
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX TRANSPORT, INC.
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX RESOURCE LLC
By: Xxxxxx Resource Management
Corporation
As Sole Member
By:
---------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
13
XX XXXXXX SULPHUR HOLDING CORPORATION
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
MIDSTREAM FUEL SERVICE LLC
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX OPERATING GP LLC
By: Xxxxxx Resource LLC
As Sole Member
By: Xxxxxx Resource Management
Corporation
As Sole Member
By:
----------------------------
Name:
-----------------------
Title:
----------------------
XXXXXX OPERATING PARTNERSHIP L.P.
By: Xxxxxx Operating GP LLC, its General
Partner
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
14
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
BETWEEN
XXXXXX RESOURCES, INC.
AND
XXXXXX OPERATING PARTNERSHIP L.P.
DATED AS OF [o], 2002
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of [o],
2002, but effective as of the Effective Time (as defined in Section 1.2),
between Xxxxxx Resources, Inc., a Texas corporation ("Resources"), and Xxxxxx
Operating Partnership L.P., a Delaware limited partnership (the "Partnership");
WITNESSETH:
WHEREAS, the Board of Directors of Resources has determined that it is
in the best interests of Resources and its sole shareholder to effectuate a
merger whereby Resources will be merged with and into the Partnership with the
Partnership being the surviving entity (the "Merger");
WHEREAS, Xxxxxx Operating GP LLC, a Delaware limited liability company
and the General Partner of the Partnership (the "General Partner"), has
determined that it is in the best interests of the Partnership and its partners
to effectuate the Merger;
WHEREAS, the Board of Directors of Resources and the sole member of the
General Partner have each approved the Merger, upon the terms and subject to the
conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and of the covenants
and agreements contained herein, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions of this
Agreement, and in accordance with the Texas Business Corporation Act (the
"TBCA") and the Delaware Revised Uniform Limited Partnership Act (the "DRULPA"),
at the Effective Time, Resources shall be merged with and into the Partnership
in accordance with this Agreement, and the separate corporate existence of
Resources shall thereupon cease. The Partnership shall continue as the surviving
entity in the Merger (sometimes hereinafter referred to as the "Surviving
Entity"), and all the properties, rights, privileges, powers and franchises of
Resources shall vest in the Surviving Entity without any transfer or assignment
having occurred, and all debts, liabilities and duties of Resources shall attach
to the Surviving Entity, all in accordance with the TBCA and the DRULPA.
Section 1.2 Filing Certificate of Merger; Effective Time. As soon as
practicable following the satisfaction or, to the extent permitted by applicable
law, waiver of the conditions set forth in Article IV, if this Agreement shall
not have been terminated prior thereto as provided in Section 5.1, Resources and
the Partnership shall cause (i) articles of merger meeting the requirements of
Section 5.04 of the TBCA (the "Articles of Merger") and (ii) a certificate of
merger meeting the requirements of Section 17-211 of the DRULPA (together with
the Articles of Merger, the "Merger Filings") to be properly executed and filed
in accordance with each such section. The Merger shall become effective at the
later of (1) the time of filing of the Merger Filings with the Secretaries of
State of the States of Texas and Delaware and (2) at 12:01 Eastern time on [o]
(the "Effective Time").
ARTICLE II
SURVIVING ENTITY
Section 2.1 Name of Surviving Entity. The name of the Surviving Entity
shall be "Xxxxxx Operating Partnership L.P."
Section 2.2 Certificate of Limited Partnership of Surviving Entity. The
Certificate of Limited Partnership of the Partnership shall continue to be the
Certificate of Limited Partnership of the Surviving Entity until amended as
provided therein and under the DRULPA.
ARTICLE III
CANCELLATION OF COMMON STOCK
Section 3.1 Cancellation of Common Stock in the Merger. At the
Effective Time, by virtue of the Merger and without any action on the part of
Resources or the sole shareholder of Resources, (i) each issued and outstanding
share of Common Stock shall be automatically cancelled, and (ii) each issued
share, if any, held by Resources as a treasury share shall be cancelled without
receipt of any consideration therefor.
ARTICLE IV
CONDITIONS PRECEDENT
The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver of the following conditions:
(a) None of the parties hereto shall be subject to any decree,
order or injunction of a court of competent jurisdiction, U.S. or
foreign, which prohibits the consummation of the Merger.
(b) Other than the filing of the Merger Filings provided for
under Article I, all material consents, appeals, authorizations of, or
filings or registrations with and notices to any governmental or
regulatory authority required of Resources and the Partnership or any
of their subsidiaries to consummate the Merger and the other
transactions contemplated hereby, shall have been made or obtained.
(c) Any consents required under instruments evidencing
indebtedness and any consents required under any contracts to which
Resources or any subsidiary of Resources is a party, shall have been
obtained.
A-2
ARTICLE V
TERMINATION, AMENDMENT AND WAIVER
Section 5.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time by action of the Board of Directors of Resources or
the General Partner.
Section 5.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 5.1, this Agreement shall forthwith become void
and have no effect, without any liability or obligation on the part of Resources
or the Partnership.
Section 5.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 5.4 Waiver. At any time prior to the Effective Time, the
parties may waive compliance by the other parties with any of the agreements
contained in this Agreement, or may waive any of the conditions to consummation
of the Merger contained in this Agreement. Any agreement on the part of a party
to any such waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Assignment; Binding Effect; Benefit. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
Section 6.2 Entire Agreement. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
Section 6.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
Section 6.4 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all
A-3
such counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed by less than
all, but together signed by all of the parties hereto.
Section 6.5 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only and shall be given no
substantive or interpretative effect whatsoever.
A-4
IN WITNESS WHEREOF, Resources and the Partnership have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
XXXXXX RESOURCES, INC.
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX OPERATING PARTNERSHIP L.P.
By: Xxxxxx Operating GP LLC
Its General Partner
By: Xxxxxx Resource LLC
Its Sole Member
By: Xxxxxx Resource Management
Corporation
Its Sole Member
By:
-----------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
A-5
EXHIBIT B
AGREEMENT AND PLAN OF MERGER
BETWEEN
XXXXXX X.X. GAS, INC.
AND
XXXXXX OPERATING PARTNERSHIP L.P.
DATED AS OF [o], 2002
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of [o],
2002, but effective as of the Effective Time (as defined in Section 1.2),
between Xxxxxx X.X. Gas, Inc., a Texas corporation ("MLPG"), and Xxxxxx
Operating Partnership L.P., a Delaware limited partnership (the "Partnership");
WITNESSETH:
WHEREAS, the Board of Directors of MLPG has determined that it is in
the best interests of MLPG and its sole shareholder to effectuate a merger
whereby MLPG will be merged with and into the Partnership with the Partnership
being the surviving entity (the "Merger");
WHEREAS, Xxxxxx Operating GP LLC, a Delaware limited liability company
and the General Partner of the Partnership (the "General Partner"), has
determined that it is in the best interests of the Partnership and its partners
to effectuate the Merger;
WHEREAS, the Board of Directors of MLPG and the sole member of the
General Partner have each approved the Merger, upon the terms and subject to the
conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and of the covenants
and agreements contained herein, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions of this
Agreement, and in accordance with the Texas Business Corporation Act (the
"TBCA") and the Delaware Revised Uniform Limited Partnership Act (the "DRULPA"),
at the Effective Time, MLPG shall be merged with and into the Partnership in
accordance with this Agreement, and the separate corporate existence of MLPG
shall thereupon cease. The Partnership shall continue as the surviving entity in
the Merger (sometimes hereinafter referred to as the "Surviving Entity"), and
all the properties, rights, privileges, powers and franchises of MLPG shall vest
in the Surviving Entity without any transfer or assignment having occurred, and
all debts, liabilities and duties of MLPG shall attach to the Surviving Entity,
all in accordance with the TBCA and the DRULPA.
Section 1.2 Filing Certificate of Merger; Effective Time. As soon as
practicable following the satisfaction or, to the extent permitted by applicable
law, waiver of the conditions set forth in Article IV, if this Agreement shall
not have been terminated prior thereto as provided in Section 5.1, MLPG and the
Partnership shall cause (i) articles of merger meeting the requirements of
Section 5.04 of the TBCA (the "Articles of Merger") and (ii) a certificate of
merger meeting the requirements of Section 17-211 of the DRULPA (together with
the Articles
of Merger, the "Merger Filings") to be properly executed and filed in accordance
with each such section. The Merger shall become effective at the later of (1)
the time of filing of the Merger Filings with the Secretaries of State of the
States of Texas and Delaware and (2) at 12:01 a.m. Eastern time on [o] (the
"Effective Time").
ARTICLE II
SURVIVING ENTITY
Section 2.1 Name of Surviving Entity. The name of the Surviving Entity
shall be "Xxxxxx Operating Partnership L.P."
Section 2.2 Certificate of Limited Partnership of Surviving Entity. The
Certificate of Limited Partnership of the Partnership shall continue to be the
Certificate of Limited Partnership of the Surviving Entity until amended as
provided therein and under the DRULPA.
ARTICLE III
CANCELLATION OF COMMON STOCK
Section 3.1 Cancellation of Common Stock in the Merger. At the
Effective Time, by virtue of the Merger and without any action on the part of
MLPG or the sole shareholder of MLPG, (i) each issued and outstanding share of
Common Stock shall be automatically cancelled, and (ii) each issued share, if
any, held by MLPG as a treasury share shall be cancelled without receipt of any
consideration therefor.
ARTICLE IV
CONDITIONS PRECEDENT
The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver of the following conditions:
(a) None of the parties hereto shall be subject to any decree,
order or injunction of a court of competent jurisdiction, U.S. or
foreign, which prohibits the consummation of the Merger.
(b) Other than the filing of the Merger Filings provided for
under Article I, all material consents, appeals, authorizations of, or
filings or registrations with and notices to any governmental or
regulatory authority required of MLPG and the Partnership or any of
their subsidiaries to consummate the Merger and the other transactions
contemplated hereby, shall have been made or obtained.
(c) Any consents required under instruments evidencing
indebtedness and any consents required under any contracts to which
MLPG or any subsidiary of MLPG is a party, shall have been obtained.
B-2
ARTICLE V
TERMINATION, AMENDMENT AND WAIVER
Section 5.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time by action of the Board of Directors of MLPG or the
General Partner.
Section 5.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 5.1, this Agreement shall forthwith become void
and have no effect, without any liability or obligation on the part of MLPG or
the Partnership.
Section 5.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 5.4 Waiver. At any time prior to the Effective Time, the
parties may waive compliance by the other parties with any of the agreements
contained in this Agreement, or may waive any of the conditions to consummation
of the Merger contained in this Agreement. Any agreement on the part of a party
to any such waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Assignment; Binding Effect; Benefit. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
Section 6.2 Entire Agreement. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
Section 6.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
Section 6.4 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may
B-3
consist of a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto.
Section 6.5 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only and shall be given no
substantive or interpretative effect whatsoever.
B-4
IN WITNESS WHEREOF, MLPG and the Partnership have caused this Agreement
to be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
XXXXXX X.X. GAS, INC.
By:
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX OPERATING PARTNERSHIP L.P.
By: Xxxxxx Operating GP LLC
Its General Partner
By: Xxxxxx Resource LLC
Its Sole Member
By: Xxxxxx Resource Management
Corporation
Its Sole Member
By:
-----------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
B-5
EXHIBIT C
CONVEYANCE, ASSIGNMENT
AND XXXX OF SALE
Recording Requested by and When Recorded Return to: Xxxxx Xxxxx L.L.P.,
0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxxx X. Xxxxxxxxx.
CONVEYANCE, ASSIGNMENT AND XXXX OF SALE
This Conveyance, Assignment and Xxxx of Sale (this "Conveyance"),
effective as of 12:01 A.M. Eastern Time on [o] (the "Effective Date"), is from
XXXXXX GAS SALES LLC, a Texas limited liability company (herein called
"Grantor"), and in favor of XXXXXX OPERATING PARTNERSHIP L.P., whose mailing
address is 0000 Xxxxx Xxxx, Xxxxxxx Xxxxx 00000 (herein called "Grantee").
ARTICLE I
GRANTING AND HABENDUM CLAUSES
1.1 GRANTING AND HABENDUM CLAUSES. For good and valuable consideration,
the receipt and sufficiency of which Grantee hereby acknowledges, Grantor hereby
contributes, conveys, assigns, transfers, delivers, and sets over unto Grantee,
its successors and assigns, all right, title, interests and estate of Grantor in
and to the following described property, to-wit:
ALL OF THE ASSETS SET FORTH ON SCHEDULE A ATTACHED HERETO
The property described in this Section 1.1 shall be referred to herein
collectively as the "Subject Property".
TO HAVE AND TO HOLD the Subject Property, subject to the terms and
conditions hereof, unto Grantee, its successors and assigns, forever.
ARTICLE II
ENCUMBRANCES AND WARRANTY DISCLAIMERS
2.1 PERMITTED ENCUMBRANCES. This Conveyance is made and accepted
expressly subject to (a) all liens, charges, encumbrances, contracts,
agreements, instruments, obligations, defects, restrictions, security interests,
options or preferential rights to purchase, adverse claims, reservations,
exceptions, easements, rights-of-way, conditions, leases, other matters
affecting the Subject Property or to which it is subject; and (b) to all matters
that a current on the ground survey or visual inspection would reflect.
2.2 CONTRIBUTION AGREEMENT. This Conveyance is expressly made subject
to the terms and conditions of that certain Contribution, Conveyance and
Assumption Agreement dated as of [o], 2002, among Grantor, Grantee and the other
parties thereto (the "Contribution Agreement"). All capitalized terms used
herein shall have the meanings given to such terms in the Contribution
Agreement, unless otherwise defined herein. Nothing contained in this
Conveyance shall in any way affect the provisions set forth in the Contribution
Agreement nor shall this Conveyance expand or contract any rights or remedies
under the Contribution Agreement. This Conveyance is intended only to effect the
transfer of the Subject Property to Grantee as provided for in the Contribution
Agreement and shall be governed entirely in accordance with the terms and
conditions of the Contribution Agreement. In the event of a conflict between the
terms of this Conveyance and the terms of the Contribution Agreement, the terms
of the Contribution Agreement shall prevail.
2.3 DISCLAIMER OF WARRANTIES; SUBROGATION. Except as expressly provided
herein or in the Contribution Agreement, this Conveyance is made, and is
accepted by Grantee, without warranty of title, express, implied or statutory,
and without recourse, but with full substitution and subrogation of Grantee, and
all persons claiming by, through, and under Grantee, to the extent assignable,
in and to all covenants and warranties by the predecessors in title of Grantor
and with full subrogation of all rights accruing under applicable statutes of
limitation or prescription and all rights of action of warranty against all
former owners of the Subject Property. Except as expressly provided herein or in
the Contribution Agreement, any covenants implied by statute or by the use of
the words "convey", "sell", "assign", "transfer", "deliver", or "set over" or
any of them or any other words used in this Conveyance, are hereby expressly
disclaimed, waived and negated.
ARTICLE III
MISCELLANEOUS
3.1 FURTHER ASSURANCES. Grantor and Grantee agree to take all such
further actions and to execute, acknowledge and deliver all such further
documents that are necessary or useful in carrying out the purposes of this
Conveyance. So long as authorized by applicable law so to do, Grantor agrees to
execute, acknowledge and deliver to Grantee all such other additional
instruments, notices, affidavits, deeds, conveyances, assignments and other
documents and to do all such other and further acts and things as may be
necessary or useful to more fully and effectively grant, bargain, assign,
convey, transfer and deliver to Grantee the Subject Property conveyed hereby or
intended so to be conveyed.
3.2 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARY. This Conveyance
shall be binding upon, and shall and inure to the benefit of, Grantor and
Grantee and their successors and assigns. The provisions of this Conveyance are
not intended to and do not create rights in any other person or entity or confer
upon any other person or entity any benefits, rights or remedies and no person
or entity is or is intended to be a third party beneficiary of any of the
provisions of this Conveyance.
3.3 GOVERNING LAW. This Conveyance and the legal relations between the
parties shall be governed by, and construed in accordance with, the laws of the
State of Texas, excluding any conflict of law rule which would refer any issue
to the laws of another jurisdiction, except when it is mandatory that the law of
the jurisdiction wherein the Subject Property is located shall apply.
C-2
3.4 HEADINGS; REFERENCES; DEFINED TERMS. All Section headings in this
Conveyance are for convenience only and shall not be deemed to control or affect
the meaning or construction of any of the provisions hereof. The words "hereof",
"herein" and "hereunder" and words of similar import, when used in this
Conveyance, shall refer to this Conveyance as a whole, including, without
limitation, all Schedules and Exhibits attached hereto, and not to any
particular provision of this Conveyance.
3.5 COUNTERPARTS. This Conveyance may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
3.6 SEVERABILITY. If any of the provisions of this Conveyance are held
by any court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over the subject matter
hereof, such contravention or invalidity shall not invalidate the entire
agreement. Instead, this Conveyance shall be construed as if it did not contain
the particular provision or provisions held to be invalid and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the parties as expressed in this Conveyance at the time of
execution of this Conveyance.
C-3
IN WITNESS WHEREOF, this Conveyance has been duly executed by the
parties hereto on the dates of the acknowledgments set forth below, to be
effective, however, as of the Effective Date.
GRANTOR:
XXXXXX GAS SALES LLC,
By: Xxxxxx Resource LLC,
Its sole member
By: Xxxxxx Resource Management
Corporation,
Its sole member
By:
----------------------------
Name:
-----------------------
Title:
----------------------
GRANTEE
XXXXXX OPERATING
PARTNERSHIP L.P.
By: Xxxxxx Operating GP LLC,
Its general partner
By: Xxxxxx Midstream Partners L.P.,
Its sole member
By: Xxxxxx Midstream GP LLC,
Its general partner
By:
-----------------------
Name:
------------------
Title:
-----------------
X-0
XXX XXXXX XX XXXXX )
)
COUNTY OF _________ )
This instrument was acknowledged before me on the ____ day of
___________, 2002, by ______________, ______________ of [o], on behalf of and in
[HIS/HER] capacity as __________ of [o].
-----------------------------------------
NOTARY PUBLIC
My Commission Expires:
-----------------------------
THE STATE OF TEXAS )
)
COUNTY OF _________ )
This instrument was acknowledged before me on the ____ day of
___________, 2002, by ______________, ______________ of [o], on behalf of and in
[HIS/HER] capacity as __________ of [o].
-----------------------------------------
NOTARY PUBLIC
My Commission Expires:
-----------------------------
C-5
SCHEDULE A
C-6
EXHIBIT D
CONVEYANCE, ASSIGNMENT
AND XXXX OF SALE
Recording Requested by and When Recorded Return to: Xxxxx Xxxxx L.L.P.,
0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxxx X. Xxxxxxxxx.
CONVEYANCE, ASSIGNMENT AND XXXX OF SALE
This Conveyance, Assignment and Xxxx of Sale (this "Conveyance"),
effective as of 12:01 A.M. Eastern Time on [o] (the "Effective Date"), is from
MIDSTREAM LLC, an Alabama limited liability company (herein called "Grantor"),
and in favor of XXXXXX OPERATING PARTNERSHIP L.P., whose mailing address is 0000
Xxxxx Xxxx, Xxxxxxx Xxxxx 00000 (herein called "Grantee").
ARTICLE I
GRANTING AND HABENDUM CLAUSES
1.1 GRANTING AND HABENDUM CLAUSES. For good and valuable consideration,
the receipt and sufficiency of which Grantee hereby acknowledges, Grantor hereby
contributes, conveys, assigns, transfers, delivers, and sets over unto Grantee,
its successors and assigns, all right, title, interests and estate of Grantor in
and to the following described property, to-wit:
ALL OF THE ASSETS SET FORTH ON SCHEDULE A ATTACHED HERETO
The property described in this Section 1.1 shall be referred to herein
collectively as the "Subject Property".
TO HAVE AND TO HOLD the Subject Property, subject to the terms and
conditions hereof, unto Grantee, its successors and assigns, forever.
ARTICLE II
ENCUMBRANCES AND WARRANTY DISCLAIMERS
2.1 PERMITTED ENCUMBRANCES. This Conveyance is made and accepted
expressly subject to (a) all liens, charges, encumbrances, contracts,
agreements, instruments, obligations, defects, restrictions, security interests,
options or preferential rights to purchase, adverse claims, reservations,
exceptions, easements, rights-of-way, conditions, leases, other matters
affecting the Subject Property or to which it is subject; and (b) to all matters
that a current on the ground survey or visual inspection would reflect.
2.2 CONTRIBUTION AGREEMENT. This Conveyance is expressly made subject
to the terms and conditions of that certain Contribution, Conveyance and
Assumption Agreement dated as of [o], 2002, among Grantor, Grantee and the other
parties thereto (the "Contribution Agreement"). All capitalized terms used
herein shall have the meanings given to such terms in the Contribution
Agreement, unless otherwise defined herein. Nothing contained in this Conveyance
shall in any way affect the provisions set forth in the Contribution Agreement
nor
shall this Conveyance expand or contract any rights or remedies under the
Contribution Agreement. This Conveyance is intended only to effect the transfer
of the Subject Property to Grantee as provided for in the Contribution Agreement
and shall be governed entirely in accordance with the terms and conditions of
the Contribution Agreement. In the event of a conflict between the terms of this
Conveyance and the terms of the Contribution Agreement, the terms of the
Contribution Agreement shall prevail.
2.3 DISCLAIMER OF WARRANTIES; SUBROGATION. Except as expressly provided
herein or in the Contribution Agreement, this Conveyance is made, and is
accepted by Grantee, without warranty of title, express, implied or statutory,
and without recourse, but with full substitution and subrogation of Grantee, and
all persons claiming by, through, and under Grantee, to the extent assignable,
in and to all covenants and warranties by the predecessors in title of Grantor
and with full subrogation of all rights accruing under applicable statutes of
limitation or prescription and all rights of action of warranty against all
former owners of the Subject Property. Except as expressly provided herein or in
the Contribution Agreement, any covenants implied by statute or by the use of
the words "convey", "sell", "assign", "transfer", "deliver", or "set over" or
any of them or any other words used in this Conveyance, are hereby expressly
disclaimed, waived and negated.
ARTICLE III
MISCELLANEOUS
3.1 FURTHER ASSURANCES. Grantor and Grantee agree to take all such
further actions and to execute, acknowledge and deliver all such further
documents, including all bills of sales and other instruments as are required by
the United States Department of Transportation or the United States Coast Guard
to transfer any of the Subject Assets, that are necessary or useful in carrying
out the purposes of this Conveyance. So long as authorized by applicable law so
to do, Grantor agrees to execute, acknowledge and deliver to Grantee all such
other additional instruments, notices, affidavits, deeds, conveyances,
assignments and other documents and to do all such other and further acts and
things as may be necessary or useful to more fully and effectively grant,
bargain, assign, convey, transfer and deliver to Grantee the Subject Property
conveyed hereby or intended so to be conveyed.
3.2 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARY. This Conveyance
shall be binding upon, and shall and inure to the benefit of, Grantor and
Grantee and their successors and assigns. The provisions of this Conveyance are
not intended to and do not create rights in any other person or entity or confer
upon any other person or entity any benefits, rights or remedies and no person
or entity is or is intended to be a third party beneficiary of any of the
provisions of this Conveyance.
3.3 GOVERNING LAW. This Conveyance and the legal relations between the
parties shall be governed by, and construed in accordance with, the laws of the
State of Texas, excluding any conflict of law rule which would refer any issue
to the laws of another jurisdiction, except when it is mandatory that the law of
the jurisdiction wherein the Subject Property is located shall apply.
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3.4 HEADINGS; REFERENCES; DEFINED TERMS. All Section headings in this
Conveyance are for convenience only and shall not be deemed to control or affect
the meaning or construction of any of the provisions hereof. The words "hereof",
"herein" and "hereunder" and words of similar import, when used in this
Conveyance, shall refer to this Conveyance as a whole, including, without
limitation, all Schedules and Exhibits attached hereto, and not to any
particular provision of this Conveyance.
3.5 COUNTERPARTS. This Conveyance may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
3.6 SEVERABILITY. If any of the provisions of this Conveyance are held
by any court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over the subject matter
hereof, such contravention or invalidity shall not invalidate the entire
agreement. Instead, this Conveyance shall be construed as if it did not contain
the particular provision or provisions held to be invalid and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the parties as expressed in this Conveyance at the time of
execution of this Conveyance.
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IN WITNESS WHEREOF, this Conveyance has been duly executed by the
parties hereto on the dates of the acknowledgments set forth below, to be
effective, however, as of the Effective Date.
GRANTOR:
XXXXXX MIDSTREAM LLC,
By: Xxxxxx Resource Management
Corporation,
Its sole member
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
GRANTEE
XXXXXX OPERATING PARTNERSHIP L.P.
By: Xxxxxx Operating GP LLC,
Its general partner
By: Xxxxxx Midstream Partners L.P.,
Its sole member
By: Xxxxxx Midstream GP LLC,
Its general partner
By:
-----------------------
Name:
------------------
Title:
-----------------
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XXX XXXXX XX XXXXX )
)
COUNTY OF _________ )
This instrument was acknowledged before me on the ____ day of
___________, 2002, by ______________, ______________ of [o], on behalf of and in
[HIS/HER] capacity as __________ of [o].
----------------------------------------
NOTARY PUBLIC
My Commission Expires:
-----------------------------
THE STATE OF TEXAS )
)
COUNTY OF _________ )
This instrument was acknowledged before me on the ____ day of
___________, 2002, by ______________, ______________ of [o], on behalf of and in
[HIS/HER] capacity as __________ of [o].
----------------------------------------
NOTARY PUBLIC
My Commission Expires:
-----------------------------
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SCHEDULE A
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EXHIBIT E
AGREEMENT AND PLAN OF MERGER
BETWEEN
XXXXXX GAS MARINE LLC
AND
XXXXXX OPERATING PARTNERSHIP L.P.
DATED AS OF [o], 2002
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of [o],
2002, but effective as of the Effective Time (as defined in Section 1.2),
between Xxxxxx Gas Marine LLC, a Texas limited liability company ("Marine"), and
Xxxxxx Operating Partnership L.P., a Delaware limited partnership (the
"Partnership");
WITNESSETH:
WHEREAS, the sole member of Marine has determined that it is in the
best interests of Marine sole member to effectuate a merger whereby Marine will
be merged with and into the Partnership with the Partnership being the surviving
entity (the "Merger");
WHEREAS, Xxxxxx Operating GP LLC, a Delaware limited liability company
and the General Partner of the Partnership (the "General Partner"), has
determined that it is in the best interests of the Partnership and its partners
to effectuate the Merger;
WHEREAS, the sole member of Marine and the sole member of the General
Partner have each approved the Merger, upon the terms and subject to the
conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and of the covenants
and agreements contained herein, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE VII
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions of this
Agreement, and in accordance with the Texas Limited Liability Company Act (the
"TLLCA") and the Delaware Revised Uniform Limited Partnership Act (the
"DRULPA"), at the Effective Time, Marine shall be merged with and into the
Partnership in accordance with this Agreement, and the separate corporate
existence of Marine shall thereupon cease. The Partnership shall continue as the
surviving entity in the Merger (sometimes hereinafter referred to as the
"Surviving Entity"), and all the properties, rights, privileges, powers and
franchises of Marine shall vest in the Surviving Entity without any transfer or
assignment having occurred, and all debts, liabilities and duties of Marine
shall attach to the Surviving Entity, all in accordance with the TBCA and the
DRULPA.
Section 1.2 Filing Certificate of Merger; Effective Time. As soon as
practicable following the satisfaction or, to the extent permitted by applicable
law, waiver of the conditions set forth in Article IV, if this Agreement shall
not have been terminated prior thereto as provided in Section 5.1, Marine and
the Partnership shall cause (i) articles of merger meeting the requirements of
the TLLCA (the "Articles of Merger") and (ii) a certificate of merger meeting
the requirements of Section 17-211 of the DRULPA (together with the Articles of
Merger, the "Merger Filings") to be properly executed and filed in accordance
with each such section. The
Merger shall become effective at the later of (1) the time of filing of the
Merger Filings with the Secretaries of State of the States of Texas and Delaware
and (2) at 12:01 a.m. Eastern time on [o] (the "Effective Time").
ARTICLE II
SURVIVING ENTITY
Section 2.1 Name of Surviving Entity. The name of the Surviving Entity
shall be "Xxxxxx Operating Partnership L.P."
Section 2.2 Certificate of Limited Partnership of Surviving Entity. The
Certificate of Limited Partnership of the Partnership shall continue to be the
Certificate of Limited Partnership of the Surviving Entity until amended as
provided therein and under the DRULPA.
ARTICLE III
CANCELLATION OF COMMON STOCK
Section 3.1 Cancellation of Membership Interests in the Merger. At the
Effective Time, by virtue of the Merger and without any action on the part of
Marine or the sole member of Marine, all outstanding membership interests in
Marine shall be automatically cancelled.
ARTICLE IV
CONDITIONS PRECEDENT
The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver of the following conditions:
(a) None of the parties hereto shall be subject to any decree,
order or injunction of a court of competent jurisdiction, U.S. or
foreign, which prohibits the consummation of the Merger.
(b) Other than the filing of the Merger Filings provided for
under Article I, all material consents, appeals, authorizations of, or
filings or registrations with and notices to any governmental or
regulatory authority required of Marine and the Partnership or any of
their subsidiaries to consummate the Merger and the other transactions
contemplated hereby, shall have been made or obtained.
(c) Any consents required under instruments evidencing
indebtedness and any consents required under any contracts to which
Marine or any subsidiary of Marine is a party, shall have been
obtained.
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ARTICLE V
TERMINATION, AMENDMENT AND WAIVER
Section 5.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time by action of the sole member of Marine or the
General Partner.
Section 5.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 5.1, this Agreement shall forthwith become void
and have no effect, without any liability or obligation on the part of Marine or
the Partnership.
Section 5.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 5.4 Waiver. At any time prior to the Effective Time, the
parties may waive compliance by the other parties with any of the agreements
contained in this Agreement, or may waive any of the conditions to consummation
of the Merger contained in this Agreement. Any agreement on the part of a party
to any such waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Assignment; Binding Effect; Benefit. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
Section 6.2 Entire Agreement. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
Section 6.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
Section 6.4 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all
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such counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed by less than
all, but together signed by all of the parties hereto.
Section 6.5 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only and shall be given no
substantive or interpretative effect whatsoever.
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IN WITNESS WHEREOF, Marine and the Partnership have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
XXXXXX GAS MARINE LLC
By: Xxxxxx Operating Partnership L.P.
Its Sole member
By: Xxxxxx Operating GP LLC
Its General Partner
By: Xxxxxx Resource LLC
Its Sole Member
By: Xxxxxx Resource Management
Corporation
Its Sole Member
By:
----------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
XXXXXX OPERATING PARTNERSHIP L.P.
By: Xxxxxx Operating GP LLC
Its General Partner
By: Xxxxxx Resource LLC
Its Sole Member
By: Xxxxxx Resource Management
Corporation
Its Sole Member
By:
----------------------------
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
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