EXHIBIT 10.6
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this "AGREEMENT") is entered
into as of the 26th day of June, 2008, by and among Blackwater Midstream Corp.,
a Nevada corporation ("PURCHASER"), and each of those Persons listed on the
signature page hereto under the heading "Sellers" (collectively, the "SELLERS").
RECITALS
WHEREAS, the Sellers hold all of the issued and outstanding membership
interests of Safeland Storage, L.L.C., a Louisiana limited liability company
("SAFELAND"), represented by 1,000 Company Securities (the "ORIGINAL
SECURITIES");
WHEREAS, Purchaser desires to acquire from the Sellers, and each Seller
desires to sell to Purchaser, seven percent (7%) of the membership interests of
Safeland;
WHEREAS, at the Closing, Safeland shall reconstitute its authorized
membership interests from 1,000 Company Securities into 70,000 Class A Units,
all of which will be held by Purchaser, and 930,000 Class B Units, all of which
will be held by the Sellers in proportion to their ownership of the Original
Securities; and
WHEREAS, in connection with the transactions contemplated by this
Agreement, Purchaser desires to acquire from Safeland and Future Energy
Investments, LLC, a Louisiana limited liability company and wholly-owned
subsidiary of Safeland ("FEI"), and Safeland and FEI desire to sell to
Purchaser, certain tracts of land owned by Safeland and FEI, respectively, and
described on EXHIBIT A attached hereto (the "LAND"), and Purchaser desires to
assume from Safeland, and Safeland desires to assign to Purchaser, those permits
described on EXHIBIT B attached hereto (the "PERMITS").
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
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SECTION 1.1 DEFINITIONS. As used herein, the following terms shall have
the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with, such specified Person through one or more intermediaries or otherwise. For
the purposes of this definition, "CONTROL" means, where used with respect to any
Person, the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"CONTROLLING" and "CONTROLLED" have correlative meanings.
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"CONTRACT" means any contract, agreement, indenture, note, bond, mortgage,
loan, instrument, lease, license, commitment or other arrangement,
understanding, undertaking, commitment or obligation.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal, local or
similar governmental authority, regulatory or administrative agency, court or
arbitral body.
"LAW" means any applicable law, rule, regulation, ordinance, order,
judgment or decree of a Governmental Authority, in each case as in effect on and
as interpreted on the date of this Agreement.
"LEGAL PROCEEDING" means any judicial, administrative or arbitral actions,
suits or proceedings (public or private) by or before a Governmental Authority.
"LIENS" mean any lien, security interest, claim, mortgage, assessment,
equitable interest, option, pledge, right of first refusal or other encumbrances
or restrictions of any kind, including any restrictions on use, voting,
transfer, receipt of income or exercise of any other attribute of ownership, but
excluding any Permitted Liens.
"ORDER" means any order, injunction, judgment, doctrine, decree, ruling,
writ, assessment or arbitration award of a Governmental Entity or arbitral
tribunal.
"ORGANIZATIONAL DOCUMENTS" means any charter, certificate of
incorporation, articles of organization, articles of association, bylaws,
operating agreement or similar formation or governing documents and instruments.
"PERMITTED LIENS" mean (a) statutory Liens not yet delinquent or the
validity of which are being contested in good faith by appropriate actions
(provided that in the event a contested statutory Lien exceeds $5,000.00, an
escrow or cash reserve account has been established for the full amount of the
potential liability), (b) purchase money Liens arising in the ordinary course,
(c) Liens for Taxes not yet delinquent, (d) mechanics', carriers', workers',
repairers' and similar Liens arising or incurred in the ordinary course of
business that are not material to the business, operations or financial
condition of the property of Safeland so encumbered and that do not result from
a breach, default or violation by Safeland of any Contract or Law, and (e) such
imperfections of title, easements, encumbrances and mortgages or other liens as
are not substantial in character, amount or extent, do not and will not
materially detract from the value or interfere with the present use of the
properties subject thereto or affected thereby or otherwise materially impair
business operations.
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, incorporated or unincorporated association, joint venture,
joint stock company, Governmental Authority or other entity of any kind.
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"PROPOSED TERMINAL" means the terminalling and storage facilities for
refined petroleum products and appurtenant pipelines and facilities that the
parties propose to construct and operate on the Safeland Tract.
"TAX AUTHORITY" means any Governmental Authority having jurisdiction over
the assessment, determination, collection or imposition of any Tax.
"TAX RETURNS" means any report, return, election, document, estimated tax
filing, declaration or other filing provided to any Tax Authority including any
amendments thereto.
"TAXES" means all taxes, assessments, charges, duties, fees, levies,
imposts or other similar charges imposed by a Governmental Authority, including
all income, franchise, profits, capital gains, capital stock, transfer, gross
receipts, sales, use, transfer, service, occupation, ad valorem, property,
excise, severance, windfall profits, premium, stamp, license, payroll,
employment, social security, unemployment, disability, environmental (including
taxes under Code Section 59A), alternative minimum, add-on, value-added,
withholding and other taxes, assessments, charges, duties, fees, levies, imposts
or other similar charges of any kind whatsoever (whether payable directly or by
withholding and whether or not requiring the filing of a Tax Return), and all
estimated taxes, deficiency assessments, additions to tax, additional amounts
imposed by any Governmental Authority, penalties and interest.
SECTION 1.2 TERMS DEFINED ELSEWHERE IN THIS AGREEMENT. For purposes of
this Agreement, the following terms have meanings set forth in the sections
indicated:
TERM SECTION
---- -------
Agreement ...................................... Preamble
Amended Operating Agreement ..................................... 2.3(a)(ii)
Closing ..................................... 2.2
Closing Date ..................................... 2.2
Damages ..................................... 6.2(a)
FEI ..................................... Recitals
Indemnified Party ..................................... 6.5(a)
Indemnifying Party ..................................... 6.5(a)
Land ..................................... Recitals
Original Securities ..................................... Recitals
Permits ..................................... Recitals
PSA ..................................... 2.3(b)(iii)
Purchase Price ..................................... 2.1
Purchaser ..................................... Preamble
Purchaser Documents ..................................... 5.2
Purchaser Indemnitees ..................................... 6.2(a)
Safeland ..................................... Recitals
Safeland Permits ..................................... 4.7
Securities Act ..................................... 5.6
Seller Documents ..................................... 3.1
Seller Indemnitees ..................................... 6.3
Sellers ..................................... Preamble
Third Party Claim ..................................... 6.5(a)
Transferred Securities ..................................... 2.1
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SECTION 1.3 RULES OF INTERPRETATION. Unless otherwise expressly provided
hereby, for purposes of this Agreement, the following rules of interpretation
shall apply:
(a) All article, section, schedule and exhibit references used in
this Agreement are to articles, sections, schedules and exhibits to this
Agreement unless otherwise specified. The schedules and exhibits attached to
this Agreement constitute a part of this Agreement and are incorporated herein
for all purposes.
(b) If a term is defined as one part of speech (such as a noun), it
shall have a corresponding meaning when used as another part of speech (such as
a verb). Terms defined in the singular have the corresponding meanings in the
plural, and vice versa. Unless the context of this Agreement clearly requires
otherwise, words importing the masculine gender shall include the feminine and
neutral genders and vice versa. The term "includes" or "including" shall mean
"including without limitation." The words "hereof," "hereto," "hereby,"
"herein," "hereunder" and words of similar import, when used in this Agreement,
shall refer to this Agreement as a whole and not to any particular section or
article in which such words appear.
(c) The parties acknowledge that each party and its attorneys have
reviewed this Agreement and that any rule of construction to the effect that any
ambiguities are to be resolved against the drafting party, or any similar rule
operating against the drafter of an agreement, shall not be applicable to the
construction or interpretation of this Agreement.
(d) The captions in this Agreement are for convenience only and
shall not be considered a part of or affect the construction or interpretation
of any provision of this Agreement.
ARTICLE II
PURCHASE AND SALE
-----------------
SECTION 2.1 PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, the Sellers will sell, convey, transfer, assign and deliver to
Purchaser, free and clear of any Liens, those Original Securities held by the
Sellers and set forth opposite such Seller's name on SCHEDULE 2.1 (the
"TRANSFERRED SECURITIES") for an aggregate purchase price of $1,500,000 (the
"PURCHASE PRICE"). From and after the Closing, as a result of the reconstitution
of Safeland's membership interests, the Original Securities shall automatically
be converted into 70,000 Class A Units, all of which will be held by Purchaser,
and 930,000 Class B Units, all of which will be held by the Sellers in
proportion to their ownership of the Original Securities.
SECTION 2.2 CLOSING. The closing of the purchase and sale of the
Transferred Securities (the "CLOSING") shall take place at the offices of
Purchaser's counsel, Milling Xxxxxx Xxxxxxxx L.L.P., 000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, simultaneously with the execution and
delivery of this Agreement (the "CLOSING DATE").
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SECTION 2.3 CLOSING DELIVERIES. At the Closing:
(a) Each Seller shall:
(i) deliver to Purchaser certificates representing the Transferred
Securities owned by such Seller;
(ii) execute and deliver to Safeland the Amended and Restated
Operating Agreement of Safeland in the form attached hereto as
EXHIBIT C (the "AMENDED OPERATING Agreement"); and
(iii) cause Safeland and FEI to execute and deliver that certain
Purchase and Sale Agreement in the form attached hereto as
EXHIBIT D (the "PSA").
(b) Purchaser shall:
(i) deliver to each Seller that portion of the Purchase Price
payable to such Seller for the Transferred Securities being
sold by such Seller, by wire transfer of immediately available
funds to the account(s) designated by such Seller in writing;
(ii) execute and deliver to Safeland the Amended Operating
Agreement; and
(iii) execute and deliver to Safeland and FEI the PSA.
ARTICLE III
SELLER'S INDIVIDUAL REPRESENTATIONS AND WARRANTIES
--------------------------------------------------
Each Seller, severally but not jointly, hereby represents and warrants to
Purchaser that the following representations and warranties are true and
correct:
SECTION 3.1 AUTHORIZATION OF AGREEMENT. Such Seller has all requisite
power, authority and legal capacity to execute and deliver this Agreement and
each other agreement, document, instrument or certificate to be executed by such
Seller in connection with the consummation of the transactions contemplated by
this Agreement (the "SELLER DOCUMENTS"), and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance of this
Agreement and each of the Seller Documents, and the consummation of the
transactions contemplated hereby and thereby, has been duly authorized and
approved by all required action on the part of such Seller. This Agreement has
been, and each of the Seller Documents will be at or prior to the Closing, duly
and validly executed and delivered by such Seller and (assuming due
authorization, execution and delivery by Purchaser) this Agreement constitutes,
and each of the Seller Documents when so executed and delivered will constitute,
legal, valid and binding obligations of such Seller, enforceable against such
Seller in accordance with its terms.
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SECTION 3.2 NO CONFLICTS. None of the execution and delivery by such
Seller of this Agreement or the Seller Documents, the consummation of the
transactions contemplated hereby or thereby, or compliance by such Seller with
any of the provisions hereof or thereof will conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination or cancellation under any
provision of (a) the Organizational Documents of such Seller (if not a natural
person); (b) any Contract to which such Seller is a party or by which any of the
properties or assets of such Seller are bound (c) any Order of any Governmental
Authority applicable to such Seller or by which any of the properties or assets
of such Seller are bound; or (d) any applicable Law.
SECTION 3.3 CONSENTS AND APPROVALS. No consent, waiver, approval, Order or
authorization of, or declaration or filing with, or notification to, any
Governmental Authority or third party is required on the part of such Seller in
connection with the execution and delivery of this Agreement, the Seller
Documents, the compliance by such Seller with any of the provisions hereof, or
the consummation of the transactions contemplated hereby.
SECTION 3.4 OWNERSHIP AND TRANSFER OF MEMBERSHIP INTEREST. Such Seller is
the owner of the Original Securities designated as owned by it on SCHEDULE 2.1,
free and clear of any and all Liens. Upon the sale of the Transferred Securities
sold by such Seller pursuant to this Agreement, Purchaser will possess good and
marketable title to such Transferred Securities, free and clear of any and all
Liens.
SECTION 3.5 LITIGATION. There is no Legal Proceeding pending or, to the
knowledge of such Seller, threatened against such Seller or to which such Seller
is otherwise a party relating to the Original Securities, this Agreement, the
Seller Documents or the transactions contemplated hereby or thereby.
SECTION 3.6 FINANCIAL ADVISOR. Except for Xxxxxxx & Company,
International, the fees and expenses of which will be paid for by the Sellers,
and not by Safeland, FEI or Purchaser, no financial advisor, broker, finder or
investment bank is entitled to any brokerage, finder's fee or other fee or
commission or expense reimbursement in connection with the transactions
contemplated by this Agreement based upon arrangements made by such Seller or
any of its Affiliates.
SECTION 3.7 ORGANIZATION AND GOOD STANDING. As to each Seller that is not
a natural person, such Seller is an entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and has
all requisite organizational power and authority to own, lease and operate its
properties and to carry on its business as now conducted.
ARTICLE IV
SELLERS' REPRESENTATIONS AND WARRANTIES AS TO SAFELAND AND FEI
--------------------------------------------------------------
The Sellers jointly and severally hereby represent and warrant to
Purchaser that the following representations and warranties are true and
correct:
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SECTION 4.1 ORGANIZATION AND QUALIFICATION. Safeland and FEI are limited
liability companies duly organized and validly existing under the Laws of the
State of Louisiana and have all requisite limited liability company power and
authority to own, lease and operate their properties and to carry on their
respective businesses as now conducted and to consummate the transactions
contemplated hereby and by the PSA. Each of Safeland and FEI is duly qualified
or licensed and in good standing to do business in each jurisdiction in which
the property owned, leased, or operated by it or the nature of the business
conducted by it makes such qualification or licensing necessary. Safeland and
FEI have made available to Purchaser accurate and complete copies of its
Organizational Documents, each as currently in effect.
SECTION 4.2 NO CONFLICTS. None of the execution and delivery of this
Agreement by the Sellers, the consummation of the transactions contemplated
hereby, or compliance by the Sellers with any of the provisions hereof will
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination or
cancellation under any provision of (a) the Organizational Documents of Safeland
or FEI; (b) any Contract to which Safeland or FEI is a party or by which any of
the properties or assets of Safeland or FEI are bound; (c) any Order of any
Governmental Authority applicable to Safeland or FEI or by which any of their
properties or assets are bound; or (d) any applicable Law.
SECTION 4.3 CAPITALIZATION.
(a) The authorized equity securities of Safeland immediately
preceding the date hereof consist of 1,000 Company Securities, all of which are
owned beneficially and of record by the Sellers in the amounts set forth on
SCHEDULE 4.3. The Sellers are not subject to any agreements or understandings
with respect to the voting or transfer of any of the Original Securities (except
as contemplated by this Agreement or as set forth in Safeland's Organizational
Documents). All of the Original Securities have been duly authorized and validly
issued and are fully paid and nonassessable. There are no outstanding
subscriptions, options, convertible securities, warrants or calls or preemptive
rights of any kind issued or granted by, or binding upon, the Sellers or
Safeland to purchase or otherwise acquire or to sell or otherwise dispose of any
security of or equity interest in Safeland.
(b) The authorized equity securities of FEI consist of 1,000 Company
Securities, all of which are owned beneficially and of record by Safeland.
Safeland is not subject to any agreements or understandings with respect to the
voting or transfer of any of FEI's Company Securities (except as set forth in
FEI's Organizational Documents). All of FEI's Company Securities have been duly
authorized and validly issued and are fully paid and nonassessable. There are no
outstanding subscriptions, options, convertible securities, warrants or calls or
preemptive rights of any kind issued or granted by, or binding upon, Safeland to
purchase or otherwise acquire or to sell or otherwise dispose of any security of
or equity interest in FEI.
SECTION 4.4 SUBSIDIARIES. Except for the ownership of all of the issued
and outstanding membership interests of FEI, Safeland does not own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity. FEI does not own or control, directly or indirectly, any
interest in any other corporation, association, or other business entity.
Neither Safeland nor FEI is a participant in any joint venture, partnership, or
similar agreement.
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SECTION 4.5 NO UNDISCLOSED LIABILITIES; INDEBTEDNESS.
(a) Neither Safeland nor FEI has any material liabilities or
obligations of any nature, whether accrued, absolute, contingent, unliquidated,
civil, criminal or otherwise, and whether due or to become due, other than
liabilities that (i) are disclosed in any Schedule (or in any plan, instrument,
lease or agreement referred to therein) or Exhibit hereto, (ii) were incurred
since its respective date of formation in the ordinary course of business that
would not reasonably be expected to affect the parties ability to perform their
respective obligations arising under the PSA and (iii) arise under Contracts,
copies of which have been made available to Purchaser.
(b) Except as set forth on SCHEDULE 4.5, neither Safeland nor FEI
has any outstanding indebtedness for borrowed money.
SECTION 4.6 REAL PROPERTY. Except as set forth on SCHEDULE 4.6, each of
Safeland and FEI has good fee simple title to that portion of the Land
designated as owned by it on EXHIBIT A, subject only to the Permitted Liens.
Except as set forth on SCHEDULE 4.6, neither Safeland nor FEI has received any
written notice of and is otherwise not aware of (a) any pending or contemplated
change in any Laws applicable to the Land that would limit or impede, in any
material respect, the construction or operation of the Proposed Terminal on the
Land, (b) any violation of any Law applicable to the Land or (c) any pending or
threatened condemnation of any part of the Land.
SECTION 4.7 PERMITS. Except as set forth on SCHEDULE 4.7, the Permits have
been validly issued to Safeland and Safeland is not in default or violation (and
no event has occurred which, with notice or the lapse of time or both, would
constitute a default or violation) of any term, condition or provision of any
Permit.
SECTION 4.8 TAXES. Except as set forth in SCHEDULE 4.8:
(a) each of Safeland and FEI has timely filed all Tax Returns
required to be filed by it (taking into account requests for extensions to file
such returns), all such Tax Returns are correct and complete in all material
respects;
(b) all Taxes and assessments (including penalties and interest)
that have become due and payable by Safeland and FEI have been properly paid;
(c) all material amounts of Taxes required to be withheld by
Safeland and FEI have been withheld and have been (or will be) duly and timely
paid to the proper Tax Authority;
(d) no deficiencies for any Taxes have been proposed, asserted or
assessed against Safeland or FEI;
(e) no requests for waivers of the time to assess any material
amounts of Taxes of Safeland or FEI have been made;
(f) no Tax Return filed by Safeland or FEI is under current
examination by any Tax Authority; and
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(g) neither Safeland nor FEI is a party to or bound by any Tax
allocation or Tax sharing or Tax indemnification agreement.
SECTION 4.9 LITIGATION. Except as set forth in SCHEDULE 4.9, there is no
Legal Proceeding pending or, to the knowledge of Safeland, threatened against
Safeland or FEI or to which Safeland or FEI is otherwise a party.
SECTION 4.10 COMPLIANCE WITH LAWS. Safeland and FEI are in compliance in
all material respects with all Laws applicable to their ownership of the Land.
Except as set forth on SCHEDULE 4.10, neither Safeland nor FEI has received
written notice of, and there has never been, any citation, fine or penalty
imposed or asserted against Safeland or FEI for any violation or alleged
violation of such Laws.
SECTION 4.11 FINANCIAL ADVISOR. Except for Xxxxxxx & Company,
International, the fees and expenses of which will be paid for by the Sellers,
and not by Safeland, FEI or Purchaser, no financial advisor, broker, finder or
investment bank is entitled to any brokerage, finder's fee or other fee or
commission or expense reimbursement in connection with the transactions
contemplated by this Agreement based upon arrangements made by Safeland or FEI
or any of their Affiliates.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to Sellers that the following
representations and warranties are true and correct:
SECTION 5.1 ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power and authority to own,
lease and operate properties and carry on its business.
SECTION 5.2 AUTHORIZATION OF AGREEMENT. Purchaser has all requisite power,
authority and legal capacity to execute and deliver this Agreement and each
other agreement, document, instrument or certificate to be executed by Purchaser
in connection with the consummation of the transactions contemplated by this
Agreement (the "PURCHASER DOCUMENTS"), and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance of this
Agreement and each of the Purchaser Documents, and the consummation of the
transactions contemplated hereby and thereby, has been duly authorized and
approved by all required action on the part of Purchaser. This Agreement has
been, and each of the Purchaser Documents will be at or prior to the Closing,
duly and validly executed and delivered by Purchaser and (assuming due
authorization, execution and delivery by Sellers) this Agreement constitutes,
and each of the Purchaser Documents when so executed and delivered will
constitute, legal, valid and binding obligations of Purchaser, enforceable
against such Seller in accordance with its terms.
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SECTION 5.3 NO CONFLICTS. None of the execution and delivery by Purchaser
of this Agreement or the Purchaser Documents, the consummation of the
transactions contemplated hereby or thereby, or compliance by Purchaser with any
of the provisions hereof or thereof will conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination or cancellation under any
provision of (a) the Organizational Documents of Purchaser; (b) any Contract to
which Purchaser is a party or by which any of the properties or assets of
Purchaser are bound (c) any Order of any Governmental Authority applicable to
Purchaser or by which any of the properties or assets of Purchaser are bound; or
(d) any applicable Law.
SECTION 5.4 CONSENTS AND APPROVALS. No consent, waiver, approval, Order or
authorization of, or declaration or filing with, or notification to, any
Governmental Authority or third party is required on the part of Purchaser in
connection with the execution and delivery of this Agreement, the Purchaser
Documents, the compliance by Purchaser with any of the provisions hereof, or the
consummation of the transactions contemplated hereby.
SECTION 5.5 LITIGATION. There is no Legal Proceeding pending or, to the
knowledge of Purchaser, threatened against Purchaser or to which Purchaser is
otherwise a party relating to the purchase of the Transferred Securities, this
Agreement, the Purchaser Documents or the transactions contemplated hereby or
thereby.
SECTION 5.6 SECURITIES MATTERS. Purchaser is an "accredited investor" as
defined in Rule 501 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and is acquiring the Transferred Securities from Sellers
solely for its own account and not with a view to any distribution or
disposition thereof. Purchaser understands that the Transferred Securities (a)
have not been registered under the Securities Act or registered or qualified
under any applicable state securities laws in reliance upon specific exemptions
therefrom, and (b) may not be transferred or sold except in a transaction
registered or exempt from registration under the Securities Act, and registered
or qualified or exempt from registration or qualification under any applicable
state securities laws.
SECTION 5.7 FINANCIAL ADVISOR. No financial advisor, broker, finder or
investment bank is entitled to any brokerage, finder's fee or other fee or
commission or expense reimbursement in connection with the transactions
contemplated by this Agreement based upon arrangements made by Purchaser or any
of their Affiliates.
ARTICLE VI
INDEMNIFICATION
---------------
SECTION 6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Sellers contained in Sections 3.4, 3.5,
3.6, 4.5, 4.6, 4.7, 4.8, 4.9 and 4.11 and the representations and warranties of
Purchaser contained in Sections 5.5, 5.6 and 5.7 shall survive until the earlier
of the first anniversary of the Closing Date and the date of closing of the
purchase and sale of the Land pursuant to the PSA. All other representations and
warranties shall terminate as of the Closing. All of the covenants made by each
party in this Agreement shall survive the consummation of the transactions
contemplated hereby and shall continue in full force and effect after the
Closing indefinitely until all obligations with respect to any such covenants
are fulfilled in their entirety.
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SECTION 6.2 INDEMNIFICATION BY SELLERS. Subject to Sections 6.1 and 6.4,
after the Closing:
(a) Each Seller individually will indemnify and hold harmless
Purchaser and its representatives, members and affiliates (collectively, the
"PURCHASER INDEMNITEES") for, and will pay to the Purchaser Indemnitees the
amount of, any loss, liability, claim, damage (specifically excluding incidental
and consequential damages), expense (including costs of investigation and
defense and reasonable attorneys' fees), whether or not involving a third-party
claim (collectively, "DAMAGES"), arising, directly or indirectly, from or in
connection with (i) any breach of any representation or warranty made by such
Seller in Article III of this Agreement or any other certificate or document
delivered by such Seller pursuant to this Agreement and (ii) any breach by such
Seller of any covenant or obligation of such Seller in this Agreement or any
Seller Document.
(b) Sellers will, in proportion to their ownership of the Original
Securities immediately preceding the Closing, indemnify and hold harmless the
Purchaser Indemnitees for, and will pay to the Purchaser Indemnitees the amount
of, any Damages, arising, directly or indirectly, from or in connection with any
breach of any representation or warranty made by Sellers in Article IV of this
Agreement or any other certificate or document delivered by Sellers collectively
pursuant to this Agreement.
SECTION 6.3 INDEMNIFICATION BY PURCHASER. Subject to Sections 6.1 and 6.4,
after the Closing, Purchaser will indemnify and hold harmless each Seller and
their representatives, members and affiliates (collectively, the "SELLER
INDEMNITEES") for, and will pay to the Purchaser Indemnitees the amount of, any
Damages arising, directly or indirectly, from or in connection with (a) any
breach of any representation or warranty made by Purchaser in Article V of this
Agreement or any other certificate or document delivered by Purchaser pursuant
to this Agreement and (b) any breach by Purchaser of any covenant or obligation
of Purchaser in this Agreement or any Purchaser Document.
SECTION 6.4 LIMITATION ON LIABILITY.
(a) No Seller shall be liable under Section 6.2(a)(i) or 6.2(b)
unless and until the aggregate Damages incurred by the Purchaser Indemnitees has
exceeded two and one half percent (2.5%) of the Purchase Price actually received
by such Seller (the "DEDUCTIBLE"), and then such Seller shall indemnify the
Purchaser Indemnitees for all such Damages in excess of the Deductible. In
addition, in no event shall a Seller be liable to any Purchaser Indemnitee for
claims of indemnification in an aggregate amount in excess of twenty five
percent (25%) of the Purchase Price actually received by such Seller (the
"CAP"); PROVIDED, HOWEVER, that the Cap shall not apply to any Damages arising
out of, resulting from or related to any fraudulent misrepresentation or a
willful breach by a party of a covenant contained herein.
(b) No party shall be liable to any other party for consequential
damages for breaches of such party's representation or warranties herein,
provided that this shall not limit any party's right to indemnification
hereunder to the extent such party becomes obligated to pay consequential
damages to a third party in connection with a claim that is subject to
indemnification hereunder.
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SECTION 6.5 THIRD PARTY CLAIMS.
(a) In the event that any party desires to make a claim under
Sections 6.2 or 6.3 in connection with any action, suit, proceeding, or demand
at any time instituted against or made upon any party for which such party may
seek indemnification hereunder (a "THIRD PARTY CLAIM"), the party or parties
entitled to indemnification hereunder (the "INDEMNIFIED PARTY") shall promptly
notify the party or parties required to provide indemnification hereunder (the
"INDEMNIFYING PARTY") of such Third Party Claim and the claim of indemnification
with respect thereto, provided that failure of the Indemnified Party to give
such prompt notice shall not relieve the Indemnifying Parties of their
obligations under this Article VI, except to the extent, if at all, that the
Indemnifying Parties shall have been prejudiced thereby.
(b) Upon receipt of notice from the Indemnified Party pursuant to
Section 6.5(a), the Indemnifying Parties will, subject to the provisions of
Section 6.5(c), assume the defense and control of such Third Party Claim, but
shall allow the Indemnified Party a reasonable opportunity to participate in the
defense of such Third Party Claim with its own counsel and at its own expense;
PROVIDED, that if an Indemnifying Party is also subject to the Third Party Claim
and counsel to the Indemnified Party reasonably determines in writing that a
conflict or potential conflict exists between the Indemnifying Party and the
Indemnified Party, then the Indemnifying Parties shall be liable under this
Article VI for the fees of the Indemnified Party's counsel and any other
expenses related to the defense of such Third Party Claim. The Indemnifying
Parties shall select counsel, contractors and consultants of recognized standing
and competence after consultation with the Indemnified Party; shall take all
steps necessary in the defense or settlement of such Third Party Claim; and
shall at all times diligently and promptly pursue the resolution of such Third
Party Claim. The Indemnified Party shall, and shall cause each of its Affiliates
and representatives to, cooperate fully with the Indemnifying Parties in the
defense of any Third Party Claim defended by the Indemnifying Parties.
(c) The Indemnifying Parties shall be authorized to consent to a
settlement of, or the entry of any judgment arising from, any Third Party Claim,
without the consent of any Indemnified Party; but only if the Indemnifying
Parties shall (i) pay or cause to be paid all amounts arising out of such
settlement or judgment concurrently with the effectiveness of such settlement;
(ii) not encumber any of the assets of any Indemnified Party or agree to any
restriction or condition that would apply to or adversely affect any Indemnified
Party or to the conduct of any Indemnified Party's business; (iii) obtain, as a
condition of any settlement or other resolution, a complete release of any
Indemnified Party potentially affected by such Third Party Claim.
(d) The parties each hereby consents to the nonexclusive
jurisdiction of any court in which a proceeding in respect of a Third-Party
Claim is brought against any Indemnified Party for purposes of any claim that an
Indemnified Party may have under this Agreement with respect to such proceeding
or the matters alleged therein and agree that process may be served on the
Indemnifying Party with respect to such a claim anywhere in the world.
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SECTION 6.6 TAX TREATMENT OF INDEMNITY PAYMENTS. The parties agree to
treat any indemnity payment made pursuant to this Article VI as an adjustment to
the Purchase Price for federal, state, local and foreign income tax purposes.
SECTION 6.7 EXCLUSIVE REMEDY. The indemnities set forth in this Article VI
shall be the exclusive remedies of the parties for any misrepresentation, breach
of warranty or nonfulfillment or failure to perform any covenant or agreement
contained in this Agreement, and the parties shall not be entitled to any
further indemnification rights or claims of any nature whatsoever in respect
thereof.
ARTICLE VII
MISCELLANEOUS
-------------
SECTION 7.1 FURTHER ASSURANCES. The parties agree to (a) furnish upon
request to each other such further information, (b) execute and deliver to each
other such other documents, and (c) do such other acts and things, all as the
other party may reasonably request for the purpose of carrying out the intent of
this Agreement and the documents referred to in this Agreement.
SECTION 7.2 EXPENSES. Except as otherwise provided in this Agreement, each
party shall bear its own expenses incurred in connection with the negotiation
and execution of this Agreement and each other agreement, document and
instrument contemplated by this Agreement and the consummation of the
transactions contemplated hereby and thereby.
SECTION 7.3 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (a) when delivered
personally by hand (with written confirmation of receipt), (b) when sent by
facsimile (with written confirmation of transmission) or (c) one (1) business
day after the day sent by overnight courier (with written confirmation of
receipt), in each case at the following addresses and facsimile numbers (or to
such other address or facsimile number as a party may have specified by notice
given to the other party pursuant to this provision):
If to Purchaser: Blackwater Midstream Corp.
Xxxx Xxxxxx Xxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (___) ___-____
Attn.: Xxxxxxx Xxxxx
With required copy to: Milling Xxxxxx Xxxxxxxx L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxxx
If to the Sellers: 0000 Xxxxxxxx Xxxxxx
XXX #000
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn.: Xxxx Xxxxxxxxx
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With required copy to: Xxxxx Xxxxxx, LLP
0000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxxx
SECTION 7.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter herein
and supersedes and cancels any prior agreements, representations, warranties, or
communications, whether oral or written, between the parties hereto relating to
the transactions contemplated hereby or the subject matter herein.
SECTION 7.5 MODIFICATIONS. Neither this Agreement nor any provision hereof
may be modified, amended, changed, waived, discharged or terminated orally, but
only by an agreement in writing signed by the party against whom or which the
enforcement of such modification, amendment, change, waiver, discharge or
termination is sought.
SECTION 7.6 ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES.
Neither this Agreement nor any of the rights, interests or obligations under
this Agreement may be assigned or delegated, in whole or in part, by operation
of Law or otherwise by any party hereto without the prior written consent of the
other parties hereto, and any such assignment without such prior written consent
shall be null and void. Subject to the preceding sentence, this Agreement shall
be binding upon, inure to the benefit of, and be enforceable by, the parties
hereto and their respective successors and permitted assigns. No provision of
this Agreement or any agreement referenced herein shall create a third-party
beneficiary relationship or otherwise confer any benefit, entitlement or right
upon any Person other than the parties to this Agreement or such referenced
agreement, as the case may be.
SECTION 7.7 GOVERNING LAW. The provisions of this Agreement, all of the
documents delivered pursuant hereto, their execution, performance or
nonperformance, interpretation, construction and all matters based upon, arising
out of or related to this Agreement or the negotiation, execution or performance
of this Agreement (whether in tort or contract) shall be governed by the laws,
both procedural and substantive, of the State of Louisiana without regard to its
conflict of laws provisions that if applied might require the application of the
laws of another jurisdiction.
SECTION 7.8 SUBMISSION TO JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) The Sellers, on behalf of themselves and each of the other
Seller Indemnitees, and Purchaser, on behalf of itself and each of the other
Purchaser Indemnitees, hereby irrevocably submit to the exclusive personal
jurisdiction of the state courts located in St. Xxxx the Baptist Parish within
the State of Louisiana and the federal courts within the Eastern District of the
State of Louisiana over any dispute arising out of or relating to this Agreement
or any of the transactions contemplated hereby and each party hereby irrevocably
agrees that all claims in respect of such dispute or any suit, action or
proceeding related thereto may be heard and determined in such courts. The
Sellers, on behalf of themselves and each of the other Seller Indemnitees, and
Purchaser, on behalf of itself and each of the other Purchaser Indemnitees,
hereby irrevocably waive, to the fullest extent permitted by applicable Law, any
objection that they may now or hereafter have to the laying of venue of any such
dispute brought in such courts or any defense of inconvenient forum for the
maintenance of such dispute. The Sellers, on behalf of themselves and each of
the other Seller Indemnitees, and Purchaser, on behalf of itself and each of the
other Purchaser Indemnitees, hereto agree that a judgment in any such dispute
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Law.
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(b) The Sellers, on behalf of themselves and each of the other
Seller Indemnitees, and Purchaser, on behalf of itself and each of the other
Purchaser Indemnitees, hereby consent to process being served by any party to
this Agreement in any suit, action or proceeding by delivery of a copy thereof
in accordance with the provisions of Section 7.3.
SECTION 7.9 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement. Once signed, any reproduction of this Agreement made by reliable
means (e.g., photocopy, facsimile) is considered an original.
SECTION 7.10 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any Law or
public policy, all other terms or provisions of this Agreement shall
nevertheless remain in full force and effect so long as the legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal, or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BLACKWATER MIDSTREAM CORP.
By: /S/ XXXXXXX X. XXXXX
---------------------------
Name: XXXXXXX X. XXXXX
---------------------------
Title: CHIEF EXECUTIVE OFFICER
---------------------------
/S/ XXXX BEAULLLIEU
-----------------------------------
Xxxx Xxxxxxxxx
MGM INVESTMENTS, LLC
By: /S/ XXXX XXXXX
---------------------------
Name: Xxxx Xxxxx
Title: Authorized Member
/S/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx
GOODFOOT INVESTMENT, LLC
By: /S/ XXXXX X. XXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Member
LAL, L.L.C.
By: /S/ XXX XXXXXXX
---------------------------
Name: Xxx XxXxxxx
Title: Sole Member
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