Exhibit 10.2
Execution Copy
CONTRIBUTION, CONVEYANCE AND
ASSUMPTION AGREEMENT
This Contribution, Conveyance and Assumption Agreement, dated as of March
15, 2006 is entered into by and among LEGACY RESERVES LP, a Delaware limited
partnership (the "Partnership"), LEGACY RESERVES OPERATING LP, a Delaware
limited partnership (the "OLP"), LEGACY RESERVES GP, LLC, a Delaware limited
liability company (the "GP"), LEGACY RESERVES OPERATING GP LLC, a Delaware
limited liability company (the "OLP GP"), MORIAH PROPERTIES, LTD., a Texas
limited partnership ("Moriah Properties"), DAB RESOURCES, LTD., a Texas limited
partnership ("DAB Resources"), BROTHERS PRODUCTION PROPERTIES, LTD., a Texas
limited partnership ("Brothers"), BROTHERS PRODUCTION COMPANY, INC., a Texas
corporation ("Brothers Production"), BROTHERS OPERATING COMPANY, INC., a Texas
corporation ("Brothers Operating"), J&W MCGRAW PROPERTIES, LTD., a Texas limited
partnership ("J&W Properties"), H2K HOLDINGS, LTD., a Texas limited partnership
("H2K Holdings"), MBN PROPERTIES LP, a Delaware limited partnership ("MBN
Properties"), CHARITIES SUPPORT FOUNDATION, INC., a Texas nonprofit corporation
("CSFI"), MORIAH FOUNDATION, a Texas nonprofit corporation ("Moriah
Foundation"), and XXXX XXXXX FAMILY FOUNDATION, a Texas nonprofit corporation
("CB Foundation"). The foregoing shall be referred to individually as a "Party"
and collectively as the "Parties".
RECITALS:
WHEREAS, Moriah Properties, DAB Resources, Brothers, Brothers
Production, Brothers Operating, J&W Properties, H2K Holdings and MBN
Properties have formed the GP pursuant to the Delaware Limited Liability
Company Act (the "Delaware LLC Act");
WHEREAS, the GP and Moriah Properties have formed the Partnership
pursuant to the Delaware Revised Uniform Limited Partnership Act (the
"Delaware Limited Partnership Act"), for the purpose of acquiring, owning
and operating certain oil and natural gas properties located in the Permian
Basin of West Texas and Southeast New Mexico;
WHEREAS, the Partnership has formed the OLP GP pursuant to the
Delaware LLC Act;
WHEREAS, the Partnership and the OLP GP have formed the OLP pursuant
to the Delaware Limited Partnership Act.
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the Parties undertake and agree as follows:
ARTICLE I
DEFINITIONS AND SCHEDULES
1.1 Definitions. The following capitalized terms have the meanings given below:
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(a) "Acts" shall mean collectively the Delaware Limited Partnership
Act, the Delaware LLC Act, and the Delaware Corporation Act.
(b) "Affiliate" has the meaning assigned to such term in the
Partnership Agreement.
(c) "Agreement" means this Contribution, Conveyance and Assumption
Agreement.
(d) "Assets" has the meaning assigned to such term in Section 4.1.
(e) "Beneficial Owner" has the meaning assigned to such term in
Section 7.2.
(f) "Brothers" has the meaning assigned to such term in the first
paragraph of this Agreement.
(g) "Brothers Assets" shall mean the assets described on Schedule 2.3.
(h) "Brothers Liabilities" means all obligations and liabilities
associated with the Brothers Assets.
(i) "Brothers Operating" has the meaning assigned to such term in the
first paragraph of this Agreement.
(j) "Brothers Operating Assets" shall mean the assets described on
Schedule 2.5.
(k) "Brothers Operating Liabilities" means all obligations and
liabilities associated with the Brothers Operating Assets.
(l) "Brothers Production" has the meaning assigned to such term in the
first paragraph of this Agreement.
(m) "Brothers Production Assets" shall mean the assets described on
Schedule 2.4.
(n) "Brothers Production Liabilities" means all obligations and
liabilities associated with the Brothers Production Assets.
(o) "CB Foundation" has the meaning assigned to such term in the first
paragraph of this Agreement.
(p) "CB Foundation Assets" shall mean the assets described on Schedule
2.11.
(q) "CB Foundation Liabilities" means all obligations and liabilities
associated with the CB Foundation Assets.
(r) "Contributing Party" has the meaning assigned to such term in
Section 6.12.
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(s) "Credit Facility" means the Credit Agreement dated the Effective
Date among Legacy Reserves LP, as borrower, the various lenders that are
parties thereto and BNP Paribas, as administrative agent for the lenders,
providing for a $300,000,000 revolving credit facility.
(t) "CSFI" has the meaning assigned to such term in the first
paragraph of this Agreement.
(u) "CSFI Assets" shall mean the assets described on Schedule 2.9.
(v) "CSFI Liabilities" means all obligations and liabilities
associated with the CSFI Assets.
(w) "DAB Resources" has the meaning assigned to such term in the first
paragraph of this Agreement.
(x) "DAB Resources Assets" shall mean the assets described on Schedule
2.2.
(y) "DAB Resources Liabilities" means all obligations and liabilities
associated with the DAB Resources Assets.
(z) "Delaware Corporation Act" means the Delaware General Corporation
Law.
(aa) "Delaware LLC Act" has the meaning assigned to such term in the
Recitals of this Agreement.
(bb) "Delaware Limited Partnership Act" has the meaning assigned to
such term in the Recitals to this Agreement.
(cc) "Effective Date" means March 15, 2006.
(dd) "Effective Time" means 12:01 a.m. Eastern Standard Time on the
Effective Date.
(ee) "Extended Closing Time" has the meaning assigned to such term in
the Purchase/Placement Agreement.
(ff) "Founders Assets" means collectively, the Moriah Properties
Assets, the DAB Resources Assets, the Brothers Assets, the Brothers
Production Assets, the Brothers Operating Assets, the J&W Properties
Assets, the H2K Holdings Assets and the MBN Properties Assets.
(gg) "H2K Holdings" has the meaning assigned to such term in the first
paragraph of this Agreement.
(hh) "H2K Holdings Assets" shall mean the assets described on Schedule
2.7.
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(ii) "H2K Holdings Liabilities" means all obligations and liabilities
associated with the H2K Holdings Assets.
(jj) "Individual Assignments" has the meaning assigned to such term in
Section 2.15.
(kk) "Initial Purchaser/Placement Agent" means Friedman, Billings,
Xxxxxx & Co., Inc.
(ll) "GP" has the meaning assigned to such term in the first paragraph
of this Agreement.
(mm) "J&W Properties" has the meaning assigned to such term in the
first paragraph of this Agreement.
(nn) "J&W Properties Assets" shall mean the assets described on
Schedule 2.6.
(oo) "J&W Properties Liabilities" means all obligations and
liabilities associated with the J&W Properties Assets.
(pp) "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.
(qq) "MBN Properties" has the meaning assigned to such term in the
first paragraph of this Agreement.
(rr) "MBN Properties Assets" shall mean the assets described on
Schedule 2.8.
(ss) "MBN Properties Liabilities" means all obligations and
liabilities associated with the MBN Properties Assets.
(tt) "Moriah Foundation" has the meaning assigned to such term in the
first paragraph of this Agreement.
(uu) "Moriah Foundation Assets" shall mean the assets described on
Schedule 2.10.
(vv) "Moriah Foundation Liabilities" means all obligations and
liabilities associated with the Moriah Foundation Assets.
(ww) "Moriah Properties" has the meaning assigned to such term in the
first paragraph of this Agreement.
(xx) "Moriah Properties Assets" shall mean the assets described on
Schedule 2.1.
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(yy) "Moriah Properties Liabilities" means all obligations and
liabilities associated with the Moriah Properties Assets.
(zz) "Offering" means the offering of Units to be made pursuant to the
Offering Memorandum.
(aaa) "Offering Memorandum" means the private offering memorandum
dated March 6, 2006 relating to the private offering of Units of the
Partnership.
(bbb) "OLP" has the meaning assigned to such term in the first
paragraph of this Agreement.
(ccc) "Omnibus Agreement" means the Omnibus Agreement dated of even
date herewith, by and among the Partnership, the GP and the other parties
thereto.
(ddd) "Option Closing Time" has the meaning assigned to such term in
the Purchase/Placement Agreement.
(eee) "Option Units" has the meaning assigned to such term in the
Purchase/Placement Agreement.
(fff) "Partnership Agreement" means the Agreement of Limited
Partnership of the Partnership, as it may be amended and restated from time
to time.
(ggg) "Party and Parties" have the meanings assigned to such terms in
the first paragraph of this Agreement.
(hhh) "Purchase/Placement Agreement" means the Purchase/Placement
Agreement dated March 6, 2006, by and among the Initial Purchaser/Placement
Agent, the Partnership, and the other parties thereto.
(iii) "Receiving Party" has the meaning assigned to such term in
Section 6.12.
(jjj) "Redeeming Entities" means collectively, Moriah Properties, DAB
Resources, Brothers, Brothers Production, Brothers Operating, J&W
Properties and H2K Holdings.
(kkk) "Redemption Percentage" means the percentage for each of the
Redeeming Entities as follows:
Moriah Properties ................................ 33.42%
DAB Resources .................................... 7.84%
Brothers ......................................... 46.48%
Brothers Production .............................. 2.47%
Brothers Operating ............................... 0.49%
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J&W Properties .......................................... 8.55%
H2K Holdings ............................................ 0.75%
(lll) "Restriction" has the meaning assigned to such term in Section
7.2.
(mmm) "Restriction Asset" has the meaning assigned to such term in
Section 7.2.
(nnn) "Selling Parties" means CSFI, Moriah Foundation and CB
Foundation.
(ooo) "Units" has the meaning assigned to such term in the Partnership
Agreement.
1.2 Schedules. The following schedules are attached hereto:
Schedule 2.1 - Description of Moriah Properties Assets;
Schedule 2.2 - Description of DAB Resources Assets;
Schedule 2.3 - Description of Brothers Assets;
Schedule 2.4 - Description of Brothers Production Assets;
Schedule 2.5 - Description of Brothers Operating Assets;
Schedule 2.6 - Description of J&W Properties Assets;
Schedule 2.7 - Description of H2K Holdings Assets;
Schedule 2.8 - Description of MBN Properties Assets;
Schedule 2.9 - Description of CSFI Assets;
Schedule 2.10 - Description of Moriah Foundation Assets; and
Schedule 2.11 - Description of CB Foundation Assets
ARTICLE II
CLOSING TRANSACTIONS
2.1 Contribution of Moriah Assets to Partnership and GP. Moriah Properties
hereby grants, contributes, transfers, assigns and conveys to the Partnership,
its successors and assigns, a 99.9% undivided interest and to the GP, its
successors and assigns, a .1% undivided interest in the Moriah Properties
Assets, for its and their own use forever.
TO HAVE AND TO HOLD the Moriah Properties Assets unto the Partnership and
the GP, their respective successors and assigns, in such undivided interests,
together with all and
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singular the rights and appurtenances thereto in anywise belonging, subject,
however, to the terms and conditions stated in this Agreement forever.
Moriah Properties acknowledges receipt of 7,334,070 Units from the
Partnership and the continuation of its membership interest in the GP as
consideration for the contributions of undivided interests in the Moriah
Properties Assets.
2.2 Contribution of DAB Resources Assets to Partnership and GP. DAB Resources
hereby grants, contributes, transfers, assigns and conveys to the Partnership,
its successors and assigns, a 99.9% undivided interest and to the GP, its
successors and assigns, a .1% undivided interest in the DAB Resources Assets,
for its and their own use forever.
TO HAVE AND TO HOLD the DAB Resources Assets unto the Partnership and the
GP, their respective successors and assigns, in such undivided interests,
together with all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in this
Agreement forever.
DAB Resources acknowledges receipt of 859,703 Units from the Partnership
and the continuation of its membership interest in the GP as consideration for
the contributions of undivided interests in the DAB Resources Assets.
2.3 Contribution of Brothers Assets to Partnership and GP. Brothers hereby
grants, contributes, transfers, assigns and conveys to the Partnership, its
successors and assigns, a 99.9% undivided interest and to the GP, its successors
and assigns, a .1% undivided interest in the Brothers Assets, for its and their
own use forever.
TO HAVE AND TO HOLD the Brothers Assets unto the Partnership and the GP,
their respective successors and assigns, in such undivided interests, together
with all and singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this Agreement forever.
Brothers acknowledges receipt of 4,968,945 Units from the Partnership and
the continuation of its membership interest in the GP as consideration for the
contributions of undivided interests in the Brothers Assets.
2.4 Contribution of Brothers Production Assets to Partnership and GP. Brothers
Production hereby grants, contributes, transfers, assigns and conveys to the
Partnership, its successors and assigns, a 99.9% undivided interest and to the
GP, its successors and assigns, a .1% undivided interest in the Brothers
Production Assets, for its and their own use forever.
TO HAVE AND TO HOLD the Brothers Production Assets unto the Partnership and
the GP, their respective successors and assigns, in such undivided interests,
together with all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in this
Agreement forever.
Brothers Production acknowledges receipt of 264,305 Units from the
Partnership and the continuation of its membership interest in the GP as
consideration for the contributions of undivided interests in the Brothers
Production Assets.
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2.5 Contribution of Brothers Operating Assets to Partnership and GP. Brothers
Operating hereby grants, contributes, transfers, assigns and conveys to the
Partnership, its successors and assigns, a 99.9% undivided interest and to the
GP, its successors and assigns, a .1% undivided interest in the Brothers
Operating Assets, for its and their own use forever.
TO HAVE AND TO HOLD the Brothers Operating Assets unto the Partnership and
the GP, their respective successors and assigns, in such undivided interests,
together with all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in this
Agreement forever.
Brothers Operating acknowledges receipt of 52,861 Units from the
Partnership and the continuation of its membership interest in the GP as
consideration for the contributions of undivided interests in the Brothers
Operating Assets.
2.6 Contribution of J&W Properties Assets to Partnership and GP. J&W Properties
hereby grants, contributes, transfers, assigns and conveys to the Partnership,
its successors and assigns, a 99.9% undivided interest and to the GP, its
successors and assigns, a .1% undivided interest in the J&W Properties Assets,
for its and their own use forever.
TO HAVE AND TO HOLD the J&W Properties Assets unto the Partnership and the
GP, their respective successors and assigns in such undivided interests,
together with all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in this
Agreement forever.
J&W Properties acknowledges receipt of 914,246 Units from the Partnership
and the continuation of its membership interest in the GP as consideration for
the contributions of undivided interests in the J&W Properties Assets.
2.7 Contribution of H2K Holdings Assets to Partnership and GP. H2K Holdings
hereby grants, contributes, transfers, assigns and conveys to the Partnership,
its successors and assigns, a 99.9% undivided interest and to the GP, its
successors and assigns, a .1% undivided interest in the H2K Holdings Assets, for
its and their own use forever.
TO HAVE AND TO HOLD the H2K Holdings Assets unto the Partnership and the
GP, their respective successors and assigns, in such undivided interests,
together with all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in this
Agreement forever.
H2K Holdings acknowledges receipt of 83,499 Units from the Partnership and
the continuation of its membership interest in the GP as consideration for the
contributions of undivided interests in the H2K Holdings Assets.
2.8 Contribution of MBN Properties Assets to Partnership and GP. MBN Properties
hereby grants, contributes, transfers, assigns and conveys to the Partnership,
its successors and assigns, a 99.9% undivided interest and to the GP, its
successors and assigns, a .1% undivided interest in the MBN Properties Assets,
for its and their own use forever.
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TO HAVE AND TO HOLD the MBN Properties Assets unto the Partnership and the
GP, their respective successors and assigns, in such undivided interests,
together with all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in this
Agreement forever.
MBN Properties acknowledges receipt of 3,162,438 Units from the Partnership
and the continuation of its membership interest in the GP as consideration for
the contributions of undivided interests in the MBN Properties Assets, and
acknowledges the payment by the Partnership of $65,300,000.00, said cash payment
to be treated for all purposes as though the Partnership assumed all of the
outstanding indebtedness of MBN Properties with respect to the MBN Properties
Assets immediately followed by the discharge by the Partnership of such
indebtedness with any cash received by MBN Properties for such purpose to be
held as agent for the lenders, who shall immediately be paid such cash in
repayment of the debt assumed.
2.9 Conveyance and Sale of CSFI Assets to the OLP. CSFI hereby grants,
contributes, transfers, assigns and conveys to the OLP, its successors and
assigns, for its and their own use forever, all right, title and interest in and
to the CSFI Assets.
TO HAVE AND TO HOLD the CSFI Assets unto the OLP, its successors and
assigns, together with all and singular the rights and appurtenances thereto in
anywise belonging, subject, however, to the terms and conditions stated in this
Agreement, and in the Individual Assignments forever.
CSFI acknowledges receipt of $209,106.00 from the OLP as consideration for
the sale of the CSFI Assets.
2.10 Conveyance and Sale of Moriah Foundation Assets to the OLP. Moriah
Foundation hereby grants, contributes, transfers, assigns and conveys to the
OLP, its successors and assigns, for its and their own use forever, all right,
title and interest in and to the Moriah Foundation Assets.
TO HAVE AND TO HOLD the Moriah Foundation Assets unto the OLP, its
successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, and in the Individual Assignments forever.
Moriah Foundation acknowledges receipt of $3,736,874.00 from the OLP as
consideration for the sale of the Moriah Foundation Assets.
2.11 Conveyance and Sale of the CB Foundation Assets to the OLP. CB Foundation
hereby grants, contributes, transfers, assigns and conveys to the OLP, its
successors and assigns, for its and their own use forever, all right, title and
interest in and to the CB Foundation Assets.
TO HAVE AND TO HOLD the CB Foundation Assets unto the OLP, its successors
and assigns, together with all and singular the rights and appurtenances thereto
in anywise belonging, subject, however, to the terms and conditions stated in
this Agreement, and in the Individual Assignments forever.
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CB Foundation acknowledges receipt of $3,736,874.00 from the OLP as
consideration for the sale of the CB Foundation Assets.
2.12 GP Contribution to Partnership of Interest in Founders Assets. The GP
hereby grants, contributes, transfers, assigns and conveys to the Partnership,
its successors and assigns, for its and their own use forever, a .1% undivided
interest in the Founders Assets.
TO HAVE AND TO HOLD said undivided interest in the Founders Assets unto the
Partnership, its successors and assigns, together with all and singular the
rights and appurtenances thereto in anywise belonging, subject, however, to the
terms and conditions stated in this Agreement forever.
The GP acknowledges receipt of a .1% general partner interest in the
Partnership as consideration for the contribution of said undivided interest in
the Founders Assets.
2.13 Partnership Contribution of Founders Assets to OLP and OLP GP. The
Partnership hereby grants, contributes, transfers, assigns and conveys to the
OLP, its successors and assigns, a 99.99% undivided interest and to the OLP GP,
its successors and assigns, a .01% undivided interest in the Founders Assets,
for its and their own use forever.
TO HAVE AND TO HOLD said undivided interest in the Founders Assets unto the
OLP and the OLP GP, their respective successors and assigns, in such undivided
interests, together with all and singular the rights and appurtenances thereto
in anywise belonging, subject, however, to the terms and conditions stated in
this Agreement forever.
The Partnership acknowledges the continuation of its 99.99% limited partner
interest in the OLP and the continuation of its 100% membership interest in the
OLP GP as consideration for the contribution of the respective undivided
interests in the Founders Assets.
2.14 OLP GP Contribution of Undivided Interest in Founders Assets to OLP. The
OLP GP hereby contributes and conveys to the OLP, its successors and assigns, a
..01% undivided interest in the Founders Assets, for its and their own use
forever.
TO HAVE AND TO HOLD said undivided interest in the Founders Assets unto the
OLP, its successors and assigns, for its and their own use forever, together
with all and singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this Agreement forever.
The OLP GP acknowledges the continuation of its .01% general partner
interest in the OLP as consideration for the contribution of such undivided
interest in the Founders Assets.
2.15 Individual Assignments. To further evidence the contributions of the Assets
reflected in this Agreement, each Party making such contribution may have
executed and delivered to the Party receiving such contribution certain
conveyance, assignment and xxxx of sale instruments (the "Individual
Assignments"). The Individual Assignments shall evidence and perfect such
contributions and conveyances made by this Agreement and shall not constitute a
second conveyance of any assets or interests therein and are not intended to
modify, and shall not modify, any of the terms, covenants and conditions set
forth in this Agreement.
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2.16 Borrowing Under Credit Facility. The Partnership shall borrow
$65,800,000.00 under the Credit Facility and contribute such borrowing to the
OLP and the OLP will use such amount together with net proceeds of the Offering
to, among other things, pay the Selling Parties and MBN Properties the cash
amounts set forth for such Parties above.
2.17 Redemption of Units. Subject to contribution of the Founders Assets, the
receipt by the Contributing Parties of the Units set forth above and the
issuance of Units pursuant to the Offering, the Partnership shall redeem from
the Redeeming Entities 4,400,000 Units (4,650,00 Units if the all the Option
Units are issued), in the aggregate, at a price of $15.895 per Unit for total
consideration of $69,938,000.00 ($73,911,750.00 if all of the Option Units are
issued). The Partnership shall redeem from the Redeeming Entities, pro rata, in
accordance with their Redemption Percentage, (a) on the Effective Date and on
the Extended Closing Time (if applicable), a total of 4,400,000 Units and (b) at
the Option Closing Time, if any, a number of Units equal to the Option Units
delivered by the Partnership to the purchasers thereof.
ARTICLE III
ASSUMPTION OF CERTAIN LIABILITIES
3.1 Assumption of Moriah Properties Liabilities by the OLP. In connection with
the contribution of the Moriah Properties Assets to the OLP, as set forth above,
the OLP hereby assumes and agrees to duly and timely pay, perform and discharge
all of the Moriah Properties Liabilities, to the full extent that Moriah
Properties has been heretofore or would have been in the future obligated to
pay, perform and discharge the Moriah Properties Liabilities were it not for
such contribution and the execution and delivery of this Agreement; provided,
however, that said assumption and agreement to duly and timely pay, perform and
discharge the Moriah Properties Liabilities shall not (a) increase the
obligation of the OLP with respect to the Moriah Properties Liabilities beyond
that of Moriah Properties, (b) waive any valid defense that was available to
Moriah Properties with respect to the Moriah Properties Liabilities or (c)
enlarge any rights or remedies of any third party under any of the Moriah
Properties Liabilities.
3.2 Assumption of DAB Resources Liabilities by the OLP. In connection with the
contribution of the DAB Resources Assets to the OLP, as set forth above, the OLP
hereby assumes and agrees to duly and timely pay, perform and discharge all of
the DAB Resources Liabilities, to the full extent that DAB Resources has been
heretofore or would have been in the future obligated to pay, perform and
discharge the DAB Resources Liabilities were it not for such contribution and
the execution and delivery of this Agreement; provided, however, that said
assumption and agreement to duly and timely pay, perform and discharge the DAB
Resources Liabilities shall not (a) increase the obligation of the OLP with
respect to the DAB Resources Liabilities beyond that of DAB Resources, (b) waive
any valid defense that was available to DAB Resources with respect to the DAB
Resources Liabilities or (c) enlarge any rights or remedies of any third party
under any of the DAB Resources Liabilities.
3.3 Assumption of Brothers Liabilities by the OLP. In connection with the
contribution of the Brothers Assets to the OLP, as set forth above, the OLP
hereby assumes and agrees to duly and timely pay, perform and discharge all of
the Brothers Liabilities, to the full extent that Brothers has been heretofore
or would have been in the future obligated to pay, perform and discharge the
Brothers Liabilities were it not for such contribution and the execution and
delivery
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of this Agreement; provided, however, that said assumption and agreement to duly
and timely pay, perform and discharge the Brothers Liabilities shall not (a)
increase the obligation of the OLP with respect to the Brothers Liabilities
beyond that of Brothers, (b) waive any valid defense that was available to
Brothers with respect to the Brothers Liabilities or (c) enlarge any rights or
remedies of any third party under any of the Brothers Liabilities.
3.4 Assumption of Brothers Production Liabilities by the OLP. In connection with
the contribution of the Brothers Production Assets to the OLP, as set forth
above, the OLP hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Brothers Production Liabilities, to the full extent that
Brothers Production has been heretofore or would have been in the future
obligated to pay, perform and discharge the Brothers Production Liabilities were
it not for such contribution and the execution and delivery of this Agreement;
provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the Brothers Production Liabilities shall not (a) increase
the obligation of the OLP with respect to the Brothers Production Liabilities
beyond that of Brothers Production, (b) waive any valid defense that was
available to Brothers Production with respect to the Brothers Production
Liabilities or (c) enlarge any rights or remedies of any third party under any
of the Brothers Production Liabilities.
3.5 Assumption of Brothers Operating Liabilities by the OLP. In connection with
the contribution of the Brothers Operating Assets to the OLP, as set forth
above, the OLP hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Brothers Operating Liabilities, to the full extent that
Brothers Operating has been heretofore or would have been in the future
obligated to pay, perform and discharge the Brothers Operating Liabilities were
it not for such contribution and the execution and delivery of this Agreement;
provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the Brothers Operating Liabilities shall not (a) increase
the obligation of the OLP with respect to the Brothers Operating Liabilities
beyond that of Brothers Operating, (b) waive any valid defense that was
available to Brothers Operating with respect to the Brothers Operating
Liabilities or (c) enlarge any rights or remedies of any third party under any
of the Brothers Operating Liabilities.
3.6 Assumption of J&W Properties Liabilities by the OLP. In connection with the
contribution of the J&W Properties Assets to the OLP, as set forth above, the
OLP hereby assumes and agrees to duly and timely pay, perform and discharge all
of the J&W Properties Liabilities, to the full extent that J&W Properties has
been heretofore or would have been in the future obligated to pay, perform and
discharge the J&W Properties Liabilities were it not for such contribution and
the execution and delivery of this Agreement; provided, however, that said
assumption and agreement to duly and timely pay, perform and discharge the J&W
Properties Liabilities shall not (a) increase the obligation of the OLP with
respect to the J&W Properties Liabilities beyond that of J&W Properties, (b)
waive any valid defense that was available to J&W Properties with respect to the
J&W Properties Liabilities or (c) enlarge any rights or remedies of any third
party under any of the J&W Properties Liabilities.
3.7 Assumption of H2K Holdings Liabilities by the OLP. In connection with the
contribution of the H2K Holdings Assets to the OLP, as set forth above, the OLP
hereby assumes and agrees to duly and timely pay, perform and discharge all of
the H2K Holdings Liabilities, to the full extent that H2K Holdings has been
heretofore or would have been in the future obligated
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to pay, perform and discharge the H2K Holdings Liabilities were it not for such
contribution and the execution and delivery of this Agreement; provided,
however, that said assumption and agreement to duly and timely pay, perform and
discharge the H2K Holdings Liabilities shall not (a) increase the obligation of
the OLP with respect to the H2K Holdings Liabilities beyond that of H2K
Holdings, (b) waive any valid defense that was available to H2K Holdings with
respect to the H2K Holdings Liabilities or (c) enlarge any rights or remedies of
any third party under any of the H2K Holdings Liabilities.
3.8 Assumption of MBN Properties Liabilities by the OLP. In connection with the
contribution of the MBN Properties Assets to the OLP, as set forth above, the
OLP hereby assumes and agrees to duly and timely pay, perform and discharge all
of the MBN Properties Liabilities, to the full extent that MBN Properties has
been heretofore or would have been in the future obligated to pay, perform and
discharge the MBN Properties Liabilities were it not for such contribution and
the execution and delivery of this Agreement; provided, however, that said
assumption and agreement to duly and timely pay, perform and discharge the MBN
Properties Liabilities shall not (a) increase the obligation of the OLP with
respect to the MBN Properties Liabilities beyond that of MBN Properties, (b)
waive any valid defense that was available to MBN Properties with respect to the
MBN Properties Liabilities or (c) enlarge any rights or remedies of any third
party under any of the MBN Properties Liabilities.
3.9 Assumption of CSFI Liabilities by the OLP. In connection with the
contribution of the CSFI Assets to the OLP, as set forth above, the OLP hereby
assumes and agrees to duly and timely pay, perform and discharge all of the CSFI
Liabilities, to the full extent that CSFI has been heretofore or would have been
in the future obligated to pay, perform and discharge the CSFI Liabilities were
it not for such contribution and the execution and delivery of this Agreement;
provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the CSFI Liabilities shall not (a) increase the obligation
of the OLP with respect to the CSFI Liabilities beyond that of CSFI, (b) waive
any valid defense that was available to CSFI with respect to the CSFI
Liabilities or (c) enlarge any rights or remedies of any third party under any
of the CSFI Liabilities.
3.10 Assumption of Moriah Foundation Liabilities by the OLP. In connection with
the contribution of the Moriah Foundation Assets to the OLP, as set forth above,
the OLP hereby assumes and agrees to duly and timely pay, perform and discharge
all of the Moriah Foundation Liabilities, to the full extent that Moriah
Foundation has been heretofore or would have been in the future obligated to
pay, perform and discharge the Moriah Foundation Liabilities were it not for
such contribution and the execution and delivery of this Agreement; provided,
however, that said assumption and agreement to duly and timely pay, perform and
discharge the Moriah Foundation Liabilities shall not (a) increase the
obligation of the OLP with respect to the Moriah Foundation Liabilities beyond
that of Moriah Foundation, (b) waive any valid defense that was available to
Moriah Foundation with respect to the Moriah Foundation Liabilities or (c)
enlarge any rights or remedies of any third party under any of the Moriah
Foundation Liabilities.
3.11 Assumption of CB Foundation Liabilities by the OLP. In connection with the
contribution of the CB Foundation Assets to the OLP, as set forth above, the OLP
hereby assumes and agrees to duly and timely pay, perform and discharge all of
the CB Foundation Liabilities, to the full extent that CB Foundation has been
heretofore or would have been in the
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future obligated to pay, perform and discharge the CB Foundation Liabilities
were it not for such contribution and the execution and delivery of this
Agreement; provided, however, that said assumption and agreement to duly and
timely pay, perform and discharge the CB Foundation Liabilities shall not (a)
increase the obligation of the OLP with respect to the CB Foundation Liabilities
beyond that of CB Foundation, (b) waive any valid defense that was available to
CB Foundation with respect to the CB Family Foundation Liabilities or (c)
enlarge any rights or remedies of any third party under any of the CB Foundation
Liabilities.
3.12 General Provisions. Notwithstanding anything to the contrary contained in
this Agreement including, without limitation, the terms and provisions of this
Article III, none of the parties shall be deemed to have assumed, and none of
the Assets have been or are being contributed subject to any liens or security
interests securing consensual indebtedness covering any of the assets, except to
the extent set forth on a schedule to this Agreement, and all such liens and
security interests shall be deemed to be excluded from the assumptions of
liabilities made under this Article III.
ARTICLE IV
TITLE MATTERS
4.1 Encumbrances.
(a) Except to the extent provided in Section 3.12 or any other
document executed in connection with this Agreement or the Offering
including, without limitation, the Omnibus Agreement, the contribution and
conveyance (by operation of law or otherwise) of the various physical
assets as reflected in this Agreement (collectively, the "Assets") are made
expressly subject to all recorded encumbrances, agreements, defects,
restrictions, and adverse claims covering the respective Assets (other than
liens not shown on any of the schedules to this Agreement) and all laws,
rules, regulations, ordinances, judgments and orders of governmental
authorities or tribunals having or asserting jurisdiction over the Assets
and operations conducted thereon or therewith, in each case to the extent
the same are valid and enforceable and affect the Assets, including,
without limitation, (i) all matters that a current on the ground survey,
title insurance commitment or policy, or visual inspection of the Assets
would reflect, (ii) the applicable liabilities assumed in Article III, and
(iii) all matters contained in the Individual Assignments.
(b) To the extent that certain jurisdictions in which the Assets are
located may require that documents be recorded in order to evidence the
transfers of title reflected in this Agreement, then the provisions set
forth in Section 4.1(a) immediately above shall also be applicable to the
conveyances under such documents.
4.2 Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales Laws.
(a) EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING INCLUDING,
WITHOUT LIMITATION THE OMNIBUS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE
THAT
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NONE OF THE PARTIES HAS MADE, DOES NOT MAKE, AND EACH SUCH PARTY
SPECIFICALLY NEGATES AND DISCLAIMS, 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, REGARDING (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
ASSETS INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL, GEOLOGY OR
ENVIRONMENTAL CONDITION OF THE ASSETS GENERALLY, INCLUDING THE PRESENCE OR
LACK OF HAZARDOUS SUBSTANCES OR OTHER MATTERS ON THE ASSETS, (B) THE INCOME
TO BE DERIVED FROM THE ASSETS, (C) THE SUITABILITY OF THE ASSETS FOR ANY
AND ALL ACTIVITIES AND USES THAT MAY BE CONDUCTED THEREON, (D) THE
COMPLIANCE OF OR BY THE ASSETS OR THEIR OPERATION WITH ANY LAWS (INCLUDING
WITHOUT LIMITATION ANY ZONING, ENVIRONMENTAL PROTECTION, POLLUTION OR LAND
USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS), OR (E) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OF THE ASSETS. EXCEPT TO THE EXTENT PROVIDED IN ANY
OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR
THE OFFERING INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT, THE
PARTIES ACKNOWLEDGE AND AGREE THAT EACH HAS HAD THE OPPORTUNITY TO INSPECT
THE RESPECTIVE ASSETS, AND EACH IS RELYING SOLELY ON ITS OWN INVESTIGATION
OF THE RESPECTIVE ASSETS AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY ANY OF THE PARTIES. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE
OFFERING INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT, NONE OF THE
PARTIES IS LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE ASSETS
FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT OR THIRD PARTY. EXCEPT TO THE
EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION
WITH THIS AGREEMENT OR THE OFFERING INCLUDING, WITHOUT LIMITATION, THE
OMNIBUS AGREEMENT, EACH OF THE PARTIES ACKNOWLEDGES THAT TO THE MAXIMUM
EXTENT PERMITTED BY LAW, THE CONTRIBUTION OF THE ASSETS AS PROVIDED FOR
HEREIN IS MADE IN AN "AS IS", "WHERE IS" CONDITION WITH ALL FAULTS, AND THE
ASSETS ARE CONTRIBUTED AND CONVEYED SUBJECT TO ALL OF THE MATTERS CONTAINED
IN THIS SECTION. THIS SECTION SHALL SURVIVE SUCH CONTRIBUTION AND
CONVEYANCE OR THE TERMINATION OF THIS AGREEMENT. THE PROVISIONS OF THIS
SECTION HAVE BEEN NEGOTIATED BY THE PARTIES AFTER DUE CONSIDERATION AND ARE
INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE
ASSETS THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN
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EFFECT, OR OTHERWISE, EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE
OFFERING, INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT.
(b) To the extent that certain jurisdictions in which the Assets are
located may require that documents be recorded in order to evidence the
transfers of title reflected in this Agreement, then the disclaimers set
forth in Section 4.2(a) immediately above shall also be applicable to the
conveyances under such documents.
(c) The contributions of the Assets made under this Agreement are made
with full rights of substitution and subrogation of the respective parties
receiving such contributions, and all persons claiming by, through and
under such parties, to the extent assignable, in and to all covenants and
warranties by the predecessors-in-title of the parties contributing the
Assets, 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 Assets.
(d) Each of the Parties agrees that the disclaimers contained in this
Section 4.2 are "conspicuous" disclaimers. Any covenants implied by statute
or 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.
Each of the Parties 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.
ARTICLE V
FURTHER ASSURANCES
5.1 Further Assurances. From time to time after the date hereof, and without any
further consideration, the Parties agree to 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 (a) more fully to assure that the applicable Parties own all of the
properties, rights, titles, interests, estates, remedies, powers and privileges
granted by this Agreement, or which are intended to be so granted (b) more fully
and effectively to vest in the applicable Parties and their respective
successors and assigns beneficial and record title to the interests contributed
and assigned by this Agreement or intended so to be and to more fully and
effectively carry out the purposes and intent of this Agreement.
5.2 Other Assurances. From time to time after the date hereof, and without any
further consideration, each of the Parties 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. Without limiting the generality of the
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foregoing, the Parties acknowledge that the Parties have used their good faith
efforts to attempt to identify all of the assets being contributed to the GP,
the Partnership, the OLP GP and the OLP as required in connection with the
Offering. However, due to the age of some of those assets and the difficulties
in locating appropriate data with respect to some of the assets it is possible
that assets intended to be contributed to the GP, the Partnership, the OLP GP
and the OLP were not identified and therefore are not included in the assets so
contributed. It is the express intent of the Parties that the Partnership and
the OLP own all assets necessary to operate the assets that are identified in
this Agreement and in the Offering Memorandum. To the extent any assets were not
identified but are necessary to the operation of assets that were identified,
then the intent of the Parties is that all such unidentified assets are intended
to be conveyed to the Partnership and the OLP. To the extent such assets are
identified at a later date, the Parties shall take the appropriate actions
required in order to convey all such assets to the Partnership or the OLP.
Likewise, to the extent that assets are identified at a later date that were not
intended by the Parties to be conveyed as reflected in the Offering Memorandum,
the Parties shall take the appropriate actions required in order to convey all
such assets to the appropriate party.
ARTICLE VI
POWERS OF ATTORNEY
6.1 Moriah Properties. Moriah Properties hereby constitutes and appoints the OLP
and its successors and assigns, its true and lawful attorney-in-fact with full
power of substitution for it and in its name, place and stead or otherwise on
behalf of Moriah Properties and its successors and assigns, and for the benefit
of the OLP and its successors and assigns, to demand and receive from time to
time the Moriah Properties Assets and to execute in the name of Moriah
Properties and its successors and assigns, instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of Moriah
Properties for the benefit of the OLP as may be appropriate, any and all
proceedings at law, in equity or otherwise which the OLP and its successors and
assigns, may deem proper in order (i) to collect, assert or enforce any claims,
rights or titles of any kind in and to the Moriah Properties Assets, (ii) to
defend and compromise any and all actions, suits or proceedings in respect of
any of the Moriah Properties Assets, and (iii) to do any and all such acts and
things in furtherance of this Agreement as the OLP or its successors or assigns
shall deem advisable. Moriah Properties hereby declares that the appointments
hereby made and the powers hereby granted are coupled with an interest and are
and shall be irrevocable and perpetual and shall not be terminated by any act of
Moriah Properties or its successors or assigns or by operation of law.
6.2 DAB Resources. DAB Resources hereby constitutes and appoints the OLP and its
successors and assigns, its true and lawful attorney-in-fact with full power of
substitution for it and in its name, place and stead or otherwise on behalf of
DAB Resources and its successors and assigns, and for the benefit of the OLP and
its successors and assigns, to demand and receive from time to time the DAB
Resources Assets and to execute in the name of DAB Resources and its successors
and assigns, instruments of conveyance, instruments of further assurance and to
give receipts and releases in respect of the same, and from time to time to
institute and prosecute in the name of DAB Resources for the benefit of the OLP
as may be appropriate, any and all proceedings at law, in equity or otherwise
which the OLP and its successors and assigns, may deem proper in order (i) to
collect, assert or enforce any claims, rights or titles of any kind in and
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to the DAB Resources Assets, (ii) to defend and compromise any and all actions,
suits or proceedings in respect of any of the DAB Resources Assets, and (iii) to
do any and all such acts and things in furtherance of this Agreement as the OLP
or its successors or assigns shall deem advisable. DAB Resources hereby declares
that the appointments hereby made and the powers hereby granted are coupled with
an interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of DAB Resources or its successors or assigns or by
operation of law.
6.3 Brothers. Brothers hereby constitutes and appoints the OLP and its
successors and assigns, its true and lawful attorney-in-fact with full power of
substitution for it and in its name, place and stead or otherwise on behalf of
Brothers and its successors and assigns, and for the benefit of the OLP and its
successors and assigns, to demand and receive from time to time the Brothers
Assets and to execute in the name of Brothers and its successors and assigns,
instruments of conveyance, instruments of further assurance and to give receipts
and releases in respect of the same, and from time to time to institute and
prosecute in the name of Brothers for the benefit of the OLP as may be
appropriate, any and all proceedings at law, in equity or otherwise which the
OLP and its successors and assigns, may deem proper in order (i) to collect,
assert or enforce any claims, rights or titles of any kind in and to the
Brothers Assets, (ii) to defend and compromise any and all actions, suits or
proceedings in respect of any of the Brothers Assets, and (iii) to do any and
all such acts and things in furtherance of this Agreement as the OLP or its
successors or assigns shall deem advisable. Brothers hereby declares that the
appointments hereby made and the powers hereby granted are coupled with an
interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of Brothers or its successors or assigns or by operation
of law.
6.4 Brothers Production. Brothers Production hereby constitutes and appoints the
OLP and its successors and assigns, its true and lawful attorney-in-fact with
full power of substitution for it and in its name, place and stead or otherwise
on behalf of Brothers Production and its successors and assigns, and for the
benefit of the OLP and its successors and assigns, to demand and receive from
time to time the Brothers Production Assets and to execute in the name of
Brothers Production and its successors and assigns, instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of
Brothers Production for the benefit of the OLP as may be appropriate, any and
all proceedings at law, in equity or otherwise which the OLP and its successors
and assigns, may deem proper in order (i) to collect, assert or enforce any
claims, rights or titles of any kind in and to the Brothers Production Assets,
(ii) to defend and compromise any and all actions, suits or proceedings in
respect of any of the Brothers Production Assets, and (iii) to do any and all
such acts and things in furtherance of this Agreement as the OLP or its
successors or assigns shall deem advisable. Brothers Production hereby declares
that the appointments hereby made and the powers hereby granted are coupled with
an interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of Brothers Production or its successors or assigns or by
operation of law.
6.5 Brothers Operating. Brothers Operating hereby constitutes and appoints the
OLP and its successors and assigns, its true and lawful attorney-in-fact with
full power of substitution for it and in its name, place and stead or otherwise
on behalf of Brothers Operating and its successors and assigns, and for the
benefit of the OLP and its successors and assigns, to demand and receive
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from time to time the Brothers Operating Assets and to execute in the name of
Brothers Operating and its successors and assigns, instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of
Brothers Operating for the benefit of the OLP as may be appropriate, any and all
proceedings at law, in equity or otherwise which the OLP and its successors and
assigns, may deem proper in order (i) to collect, assert or enforce any claims,
rights or titles of any kind in and to the Brothers Operating Assets, (ii) to
defend and compromise any and all actions, suits or proceedings in respect of
any of the Brothers Operating Assets, and (iii) to do any and all such acts and
things in furtherance of this Agreement as the OLP or its successors or assigns
shall deem advisable. Brothers Operating hereby declares that the appointments
hereby made and the powers hereby granted are coupled with an interest and are
and shall be irrevocable and perpetual and shall not be terminated by any act of
Brothers Operating or its successors or assigns or by operation of law.
6.6 J&W Properties. J&W Properties hereby constitutes and appoints the OLP and
its successors and assigns, its true and lawful attorney-in-fact with full power
of substitution for it and in its name, place and stead or otherwise on behalf
of J&W Properties and its successors and assigns, and for the benefit of the OLP
and its successors and assigns, to demand and receive from time to time the J&W
Properties Assets and to execute in the name of J&W Properties and its
successors and assigns, instruments of conveyance, instruments of further
assurance and to give receipts and releases in respect of the same, and from
time to time to institute and prosecute in the name of J&W Properties for the
benefit of the OLP as may be appropriate, any and all proceedings at law, in
equity or otherwise which the OLP and its successors and assigns, may deem
proper in order (i) to collect, assert or enforce any claims, rights or titles
of any kind in and to the J&W Properties Assets, (ii) to defend and compromise
any and all actions, suits or proceedings in respect of any of the J&W
Properties Assets, and (iii) to do any and all such acts and things in
furtherance of this Agreement as the OLP or its successors or assigns shall deem
advisable. J&W Properties hereby declares that the appointments hereby made and
the powers hereby granted are coupled with an interest and are and shall be
irrevocable and perpetual and shall not be terminated by any act of J&W
Properties or its successors or assigns or by operation of law.
6.7 H2K Holdings. H2K Holdings hereby constitutes and appoints the OLP and its
successors and assigns, its true and lawful attorney-in-fact with full power of
substitution for it and in its name, place and stead or otherwise on behalf of
H2K Holdings and its successors and assigns, and for the benefit of the OLP and
its successors and assigns, to demand and receive from time to time the H2K
Holdings Assets and to execute in the name of H2K Holdings and its successors
and assigns, instruments of conveyance, instruments of further assurance and to
give receipts and releases in respect of the same, and from time to time to
institute and prosecute in the name of H2K Holdings for the benefit of the OLP
as may be appropriate, any and all proceedings at law, in equity or otherwise
which the OLP and its successors and assigns, may deem proper in order (i) to
collect, assert or enforce any claims, rights or titles of any kind in and to
the H2K Holdings Assets, (ii) to defend and compromise any and all actions,
suits or proceedings in respect of any of the H2K Holdings Assets, and (iii) to
do any and all such acts and things in furtherance of this Agreement as the OLP
or its successors or assigns shall deem advisable. H2K Holdings hereby declares
that the appointments hereby made and the powers hereby granted are coupled with
an interest and are and shall be irrevocable and perpetual and
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shall not be terminated by any act of H2K Holdings or its successors or assigns
or by operation of law.
6.8 MBN Properties. MBN Properties hereby constitutes and appoints the OLP and
its successors and assigns, its true and lawful attorney-in-fact with full power
of substitution for it and in its name, place and stead or otherwise on behalf
of MBN Properties and its successors and assigns, and for the benefit of the OLP
and its successors and assigns, to demand and receive from time to time the MBN
Properties Assets and to execute in the name of MBN Properties and its
successors and assigns, instruments of conveyance, instruments of further
assurance and to give receipts and releases in respect of the same, and from
time to time to institute and prosecute in the name of MBN Properties for the
benefit of the OLP as may be appropriate, any and all proceedings at law, in
equity or otherwise which the OLP and its successors and assigns, may deem
proper in order (i) to collect, assert or enforce any claims, rights or titles
of any kind in and to the MBN Properties Assets, (ii) to defend and compromise
any and all actions, suits or proceedings in respect of any of the MBN
Properties Assets, and (iii) to do any and all such acts and things in
furtherance of this Agreement as the OLP or its successors or assigns shall deem
advisable. MBN Properties hereby declares that the appointments hereby made and
the powers hereby granted are coupled with an interest and are and shall be
irrevocable and perpetual and shall not be terminated by any act of MBN
Properties or its successors or assigns or by operation of law.
6.9 CSFI. CSFI hereby constitutes and appoints the OLP and its successors and
assigns, its true and lawful attorney-in-fact with full power of substitution
for it and in its name, place and stead or otherwise on behalf of CSFI and its
successors and assigns, and for the benefit of the OLP and its successors and
assigns, to demand and receive from time to time the CSFI Assets and to execute
in the name of CSFI and its successors and assigns, instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of CSFI
for the benefit of the OLP as may be appropriate, any and all proceedings at
law, in equity or otherwise which the OLP and its successors and assigns, may
deem proper in order (i) to collect, assert or enforce any claims, rights or
titles of any kind in and to the CSFI Assets, (ii) to defend and compromise any
and all actions, suits or proceedings in respect of any of the CSFI Assets, and
(iii) to do any and all such acts and things in furtherance of this Agreement as
the OLP or its successors or assigns shall deem advisable. CSFI hereby declares
that the appointments hereby made and the powers hereby granted are coupled with
an interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of CSFI or its successors or assigns or by operation of
law.
6.10 Moriah Foundation. Moriah Foundation hereby constitutes and appoints the
OLP and its successors and assigns, its true and lawful attorney-in-fact with
full power of substitution for it and in its name, place and stead or otherwise
on behalf of Moriah Foundation and its successors and assigns, and for the
benefit of the OLP and its successors and assigns, to demand and receive from
time to time the Moriah Foundation Assets and to execute in the name of Moriah
Foundation and its successors and assigns, instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of Moriah
Foundation for the benefit of the OLP as may be appropriate, any and all
proceedings at law, in equity or otherwise which the OLP and its successors and
assigns, may deem proper in order (i) to collect, assert or enforce any claims,
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rights or titles of any kind in and to the Moriah Foundation Assets, (ii) to
defend and compromise any and all actions, suits or proceedings in respect of
any of the Moriah Foundation Assets, and (iii) to do any and all such acts and
things in furtherance of this Agreement as the OLP or its successors or assigns
shall deem advisable. Moriah Foundation hereby declares that the appointments
hereby made and the powers hereby granted are coupled with an interest and are
and shall be irrevocable and perpetual and shall not be terminated by any act of
Moriah Foundation or its successors or assigns or by operation of law.
6.11 CB Foundation. CB Foundation hereby constitutes and appoints the OLP and
its successors and assigns, its true and lawful attorney-in-fact with full power
of substitution for it and in its name, place and stead or otherwise on behalf
of CB Foundation and its successors and assigns, and for the benefit of the OLP
and its successors and assigns, to demand and receive from time to time the CB
Foundation Assets and to execute in the name of CB Foundation and its successors
and assigns, instruments of conveyance, instruments of further assurance and to
give receipts and releases in respect of the same, and from time to time to
institute and prosecute in the name of CB Foundation for the benefit of the OLP
as may be appropriate, any and all proceedings at law, in equity or otherwise
which the OLP and its successors and assigns, may deem proper in order (i) to
collect, assert or enforce any claims, rights or titles of any kind in and to
the CB Foundation Assets, (ii) to defend and compromise any and all actions,
suits or proceedings in respect of any of the CB Foundation Assets, and (iii) to
do any and all such acts and things in furtherance of this Agreement as the OLP
or its successors or assigns shall deem advisable. CB Foundation hereby declares
that the appointments hereby made and the powers hereby granted are coupled with
an interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of CB Foundation or its successors or assigns or by
operation of law.
6.12 Contributing Parties. In addition to the specific powers of attorney
granted in the other sections of this Article VI, each of the Parties that has
contributed the Assets as reflected by this Agreement (each a "Contributing
Party") hereby constitutes and appoints the party to whom the respective Assets
were contributed and its successors and assigns (the "Receiving Party"), its
true and lawful attorney-in-fact with full power of substitution for it and in
its name, place and stead or otherwise on behalf of the applicable Contributing
Party and its successors and assigns, and for the benefit of the applicable
Receiving Party and its successors and assigns, to demand and receive from time
to time the applicable Assets contributed and to execute in the name of the
applicable Contributing Party and its successors and assigns instruments of
conveyance, instruments of further assurance and to give receipts and releases
in respect of the same, and from time to time to institute and prosecute in the
name of the applicable Contributing Party for the benefit of the applicable
Receiving Party as may be appropriate, any and all proceedings at law, in equity
or otherwise which the applicable Receiving Party and its successors and
assigns, may deem proper in order to (a) collect, assert or enforce any claims,
rights or titles of any kind in and to the applicable Assets, (b) defend and
compromise any and all actions, suits or proceedings in respect of any of the
applicable Assets, and (c) do any and all such acts and things in furtherance of
this Agreement as the applicable Receiving Party or its successors or assigns
shall deem advisable. Each Contributing Party hereby declares that the
appointments hereby made and the powers hereby granted are coupled with an
interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of any Contributing Party or its successors or assigns or
by operation of law.
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ARTICLE VII
MISCELLANEOUS
7.1 Order of Completion of Transactions. The transactions provided for in
Article II (except as otherwise noted) and Article III of this Agreement shall
be completed in the following order:
First, the transactions provided for in Article II, other than those
transactions provided for in Section 2.17, shall be completed in the order set
forth therein;
Second, the transactions provided for in Article III shall be
completed in the order set forth therein; and
Third, the transactions provided for in Article II, Section 2.17 shall
be completed in the order set forth therein.
7.2 Consents; Restriction on Assignment. If there are prohibitions against or
conditions to the contribution and conveyance of one or more of the Assets
without the prior written consent of third parties, including, without
limitation, governmental agencies (other than consents of a ministerial nature
which are normally granted in the ordinary course of business), which if not
satisfied would result in a breach of such prohibitions or conditions or would
give an outside party the right to terminate rights of the Party to whom the
applicable Assets were intended to be conveyed (the "Beneficial Owner") with
respect to such portion of the Assets (herein called a "Restriction"), then any
provision contained in this Agreement to the contrary notwithstanding, the
transfer of title to or interest in each such portion of the Assets (herein
called the "Restriction Asset") pursuant to this Agreement shall not become
effective unless and until such Restriction is satisfied, waived or no longer
applies. When and if such a Restriction is so satisfied, waived or no longer
applies, to the extent permitted by applicable law and any applicable
contractual provisions, the assignment of the Restriction Asset subject thereto
shall become effective automatically as of the Effective Time, without further
action on the part of any Party. Each of the applicable Parties that were
involved with the conveyance of a Restriction Asset agree to use their
reasonable best efforts to obtain on a timely basis satisfaction of any
Restriction applicable to any Restriction Asset conveyed by or acquired by any
of them. The description of any portion of the Assets as a "Restriction Asset"
shall not be construed as an admission that any Restriction exists with respect
to the transfer of such portion of the Assets. In the event that any Restriction
Asset exists, the applicable Party agrees to continue to hold such Restriction
Asset in trust for the exclusive benefit of the applicable Party to whom such
Restriction Asset was intended to be conveyed and to otherwise use its
reasonable best efforts to provide such other Party with the benefits thereof,
and the party holding such Restriction Asset will enter into other agreements,
or take such other action as it may deem necessary, in order to ensure that the
applicable Party to whom such Restriction Asset was intended to be conveyed has
the assets and concomitant rights necessary to enable the applicable Party to
operate such Restriction Asset in all material respects as it was operated prior
to the Effective Time.
7.3 Costs. The OLP shall pay all sales, use and similar taxes arising out of the
contributions, conveyances and deliveries to be made hereunder, and shall pay
all documentary, filing, recording, transfer, deed, and conveyance taxes and
fees required in connection therewith. In addition, the OLP shall be responsible
for all costs, liabilities and expenses (including court costs
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and reasonable attorneys' fees) incurred in connection with the satisfaction or
waiver of any Restriction pursuant to Section 7.2 to the extent such Restriction
was disclosed to the OLP on or before the Effective Date.
7.4 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 Schedules attached hereto, and not to any particular provision
of this Agreement. All references herein to Articles, Sections, and Schedules
shall, unless the context requires a different construction, be deemed to be
references to the Articles, Sections and Schedules of this Agreement,
respectively, and all such Schedules 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 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.
7.5 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.
7.6 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.
7.7 Counterparts. This Agreement may be executed in any number of counterparts,
all of which together shall constitute one agreement binding on the Parties
hereto.
7.8 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, wherein the Assets are located, shall apply.
7.9 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.
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7.10 Deed; Xxxx of Sale; Assignment. To the extent required and permitted by
applicable law, this Agreement shall also constitute a "deed," "xxxx of sale" or
"assignment" of the Assets.
7.11 Amendment or Modification. This Agreement may be amended or modified from
time to time only by the written agreement of all the Parties hereto and
affected thereby.
7.12 Integration. This Agreement and the instruments referenced herein supersede
all previous understandings or agreements among the Parties, whether oral or
written, with respect to its subject matter. This Agreement and such instruments
contain the entire understanding of the Parties with respect to the subject
matter hereof and thereof. No understanding, representation, promise or
agreement, whether oral or written, 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.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
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MORIAH PROPERTIES, LTD.
By: Moriah Resources, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
DAB RESOURCES, LTD.
By: DAB 1999 Corp., its general partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
BROTHERS PRODUCTION PROPERTIES, LTD.
By: Brothers Production Company, Inc.,
its general partner
By: /s/ Xxxx X. XxXxxx
------------------------------------
Name: Xxxx X. XxXxxx
Title: President
BROTHERS PRODUCTION COMPANY, INC.
By: /s/ Xxxx X. XxXxxx
------------------------------------
Name: Xxxx X. XxXxxx
Title: President
BROTHERS OPERATING COMPANY, INC.
By: /s/ Xxxx X. XxXxxx
------------------------------------
Name: Xxxx X. XxXxxx
Title: President
J&W MCGRAW PROPERTIES, LTD.
By: Xxxxx X. XxXxxx Management, LLC,
its general partner
By: /s/ Xxxx X. XxXxxx
------------------------------------
Name: Xxxx X. XxXxxx
Title: President
MBN PROPERTIES LP
By: MBN Management, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
H2K HOLDINGS, LTD.
By: H2K Management, LLC,
its general partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
CHARITIES SUPPORT FOUNDATION, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Treasurer
MORIAH FOUNDATION
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
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XXXX XXXXX FAMILY FOUNDATION
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
LEGACY RESERVES GP, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President, Chief Financial
Officer and Secretary
LEGACY RESERVES LP
By: Legacy Reserves GP, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President, Chief Financial
Officer and Secretary
LEGACY RESERVES OPERATING GP LLC
By: Legacy Reserves LP, its sole member
By: Legacy Reserves GP, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President, Chief Financial Officer
and Secretary
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LEGACY RESERVES OPERATING LP
By: Legacy Reserves Operating GP LLC,
its general partner
By: Legacy Reserves LP, its sole member
By: Legacy Reserves GP, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President, Chief Financial
Officer and Secretary
-28-
