Exhibit 10(L)
PURCHASE AGREEMENT
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This Purchase Agreement (this "Agreement") is entered into as of July
26, 2005 (the "Effective Date"), by and among Gateway Pipeline Company, a Texas
corporation ("Gateway"); Madisonville Gas Processing, LP, a Colorado limited
partnership ("Buyer"); and Bear Cub Investments LLC, a Colorado limited
liability company ("Guarantor"). Gateway and Buyer are sometimes hereinafter
individually referred to as a "Party" and collectively referred to as the
"Parties."
RECITALS
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WHEREAS, Gateway, Gateway Processing Company, a Texas corporation
("Gateway Processing"), Redwood Energy Production, L.P. ("Redwood"), and Hanover
Compression Limited Partnership ("Hanover") entered into that First Amended and
Restated Master Agreement on September 12, 2002 (the "Restated Master
Agreement") in connection with oil and gas drilling, production, gathering,
treating, transportation, and marketing operations relative to the Madisonville
Rodessa Field in Madison County, Texas; and
WHEREAS, contemporaneously with the execution hereof, Gateway, Gateway
Processing, Redwood, and Buyer (as assignee of Hanover) are entering into a
Termination and Release Agreement (the "Termination Agreement") for the
termination of the Restated Master Agreement and Buyer is acquiring Hanover's
Treatment Plant (as such term is defined in the Restated Master Agreement),
together with all related property, rights, and equipment; and
WHEREAS, by execution hereof Gateway shall (i) sell to Buyer its
gathering line, and its Acid Gas disposal line which are connected to the
Treatment Plant and all related equipment, pursuant to that Conveyance,
Assignment, and Xxxx of Sale (the "Xxxx of Sale") attached hereto as Exhibit A;
and
WHEREAS, upon execution hereof, Buyer shall deliver to Gateway the
payment set forth below in Article I; and
WHEREAS, Guarantor, the sole owner of Buyer (as both limited partner
of Buyer and sole owner of Madisonville Gas Processing, LLC, the general partner
of Buyer), as inducement for Gateway to enter into this Agreement agrees,
pursuant to the terms hereof, to guaranty certain payments of Buyer.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
AGREEMENT
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Article I
Sale and Payment
1. Sale of Assets and Equipment. Upon execution hereof, and effective as
of the Effective Date, Gateway shall execute, acknowledge, and deliver to Shook,
Hardy & Bacon L.L.P., attention: Xxxxx X. Xxxxx (the "Escrow Agent") that
Conveyance, Assignment and Xxxx of Sale attached hereto as Exhibit A (the "Xxxx
of Sale") conveying and assigning to Buyer those certain pipeline assets and
related property interests and equipment more particularly described therein
(the "Assets").
2. Payment to Gateway. As consideration for the sale of the Assets, Buyer
shall:
(i) immediately upon execution of this Agreement, pay to Gateway One
Hundred Thirty-five Thousand Dollars ($135,000)(the "Xxxxxxx Payment"); and
(ii) on or before 5:00 p.m. Central Time on August 31, 2005 (the
"Closing Date"), pay to Gateway, or at Buyer's option, directly to those
lien holders listed in subparts 1 and 2 on Schedule 1.(ii) to the extent of
their payoff balances with the balance to Gateway, an additional Two
Million, Five Hundred Ninety Thousand Dollars ($2,590,000) (the "Closing
Payment" and collectively with the Xxxxxxx Payment, the "Purchase Price").
All amounts to be paid pursuant to this Section 2 shall be made by wire
transfers of immediately available funds pursuant to the wiring instructions
provided to Buyer by Gateway.
3. Escrow and Closing Payment.
(i) The Parties shall instruct the Escrow Agent to hold the Xxxx of
Sale until the Closing Date; provided, however, that from the Effective
Date until the Closing Date, Buyer shall have full access to and use of the
Assets as if the Xxxx of Sale had been delivered to Buyer on the Effective
Date. If, on or before the Closing Date, the full amount of the Closing
Payment is paid to Gateway by Buyer as provided for in Section 2 of this
Article I, then the Parties shall promptly instruct the Escrow Agent to
deliver the Xxxx of Sale to Buyer. If, however, on the Closing Date, the
full amount of the Closing Payment has not been paid to Gateway, then
Guarantor shall immediately pay to Gateway any portion of the Closing
Payment remaining outstanding. Such payment by Guarantor shall be made by
wire transfer of immediately available funds pursuant to wiring
instructions provided to Guarantor by Gateway.
(ii) If, for any reason, the Closing Payment has not been paid in full
to Gateway on of before the Closing Date, then Gateway shall have the
option to either:
A. Instruct the Escrow Agent to deliver the Termination Agreement
and Xxxx of Sale to Gateway, upon which the Termination Agreement and
Xxxx of Sale shall be null and void and of no further force and
effect, causing, without any further action, all right, title and
interest in and to the Assets to revert to Gateway and all the
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agreements otherwise terminated by the Termination Agreement to be
renewed, effective as of the Effective Date (the "Unwind Option"); or
B. Instruct the Escrow Agent to deliver the Xxxx of Sale to
Buyer, upon which Buyer and Guarantor shall immediately have the joint
and several obligation to pay to Gateway any portion of the Closing
Payment then outstanding (the "Transfer Option").
(iii) The Parties hereby acknowledge that if Gateway elects the
Unwind Option, all rights and obligations of Gateway, Gateway
Processing, Redwood and Hanover under the Restated Master Agreement
shall be renewed, effective as of the Effective Date, and all of
Hanover's rights and obligations under the Restated Master Agreement,
as of immediately prior to the Effective Date, shall be assumed by
Buyer. Furthermore, upon exercise of the Unwind Option by Gateway,
Buyer shall assign to Gateway any and all rights they may have in and
to any insurance proceeds payable in connection with the use or
operation of the Assets during the period of time extending from the
Effective Date through and including the Closing Date.
(iv) Regardless of whether Gateway elects the Unwind Option or
the Transfer Option, Gateway shall be entitled to retain the Xxxxxxx
Payment and any portion of the Closing Payment previously received by
it.
(v) Nothing contained in this Article I or otherwise in this
Agreement shall be deemed to be a waiver by Gateway of its right to
pursue any additional remedy, whether in law or in equity, available
to it with respect to a breach of any provision of this Agreement by
Buyer.
(vi) From and after the Effective Date and until the Closing
Date, Buyer shall, (a) continue to use and operate the Assets in a
manner consistent with the use and operation of the Assets by Gateway
immediately prior to the Effective Date, (b) use all reasonable
efforts to preserve the Assets in the condition received, normal wear
and tear excepted, (c) not create or allow to exist any encumbrance or
lien on any of the Assets, except as identified on Schedule 1.(ii)
hereto, (d) not sell, lease, transfer or otherwise dispose of any of
the Assets, and (e) maintain in full force and effect policies of
insurance of a manner and in coverage amounts commercially reasonable
for the operation of the Assets as contemplated hereby, proof of which
shall be provided to Gateway on or before the Effective Date.
4. Buyer shall indemnify, defend and hold harmless Gateway from and
against any and all actions, proceedings, claims, assessments, judgments,
losses, liabilities, damages, costs or expenses arising from or related to
Buyer's use or operation of the Assets during the period extending from the
Effective Date until such time as the Closing Payment has been received by
Gateway as provided for in this Agreement ("Losses"); provided, however,
that Buyer, collectively, shall have no liability for indemnification of
Losses under this Article I, Section 4. in excess of the Closing Payment,
net of any insurance proceeds received by Gateway, with respect to any such
Losses. Gateway will promptly notify Buyer in writing of any proceeding or
third party claim for which Gateway may seek indemnification under this
Article I, Section 4.
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5. All obligations of Guarantor under this Agreement automatically
cease and terminate upon Gateway's receipt of the Closing Payment.
Article II
Representations and Warranties
1. Gateway Representations. Gateway hereby represents and warrants
to Buyer as follows:
(i) Power; Authority; Authorization. Gateway has all requisite
corporate power and authority (i) to execute and deliver this
Agreement, (ii) to consummate the transactions contemplated hereby,
and (iii) to perform all the obligations to be performed by it
hereunder. The execution and delivery of this Agreement, the
performance of all the terms and conditions hereof to be performed by
Gateway in its corporate capacity, and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Gateway. This Agreement has
been duly executed and delivered by Gateway, and constitutes the valid
and binding obligation of Gateway, enforceable against Gateway in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency or other laws relating to or
affecting the enforcement of creditors' rights generally and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(ii) Title to Assets. Except as identified on Schedule 1.(ii), or
as would not otherwise have a material adverse effect on the value of
the Assets, Gateway has all right, title and interest in the Assets
free and clear of all liens, claims or encumbrances.
(iii) No Conflicts. Except as identified in Schedule 1.(iii),
neither the execution and delivery of this Agreement or any other
document or instrument to be executed and delivered by Gateway
pursuant to the transactions contemplated hereunder, nor the
performance of Gateway's obligations thereunder, will (a) violate any
regulation or court order to which Gateway or the Assets is subject,
(b) conflict with or result in any breach of any provision of the
certificate of incorporation or bylaws of Gateway, or (c) require any
notice, expiration of any waiting period, filing with, or permit,
authorization, consent or approval of, any governmental authority or
other person.
(iv) Tax Matters. Gateway has filed all tax returns with respect
to the Assets that it was required to file for all taxable periods
ending before the Effective Date (but only to the extent such returns
were due prior to the Effective Date). All such tax returns were
complete and accurate in all material respects, and all taxes shown as
due from Gateway with respect to the Assets on any such tax returns
have been paid, with the exception of any current year taxes that may
be due, which shall be pro-rated to the Effective Date for the current
year.
(v) Real Property. To Gateway's knowledge, all easements relating
to the Assets have been validly granted and none of the Assets
encroaches on any boundary or lies outside any such easement. For
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purposes of this Agreement, the phrase, "to Gateway's knowledge,"
shall mean to the actual knowledge of any executive officer of
Gateway.
(vi) Litigation; Compliance with Law. Except as identified in
Schedule 1.(vi), there is no litigation pending or, to Gateway's
knowledge, threatened against Gateway (a) related to the Assets or (b)
seeking to prevent or challenge any of the transactions contemplated
hereunder. There has been no default under any laws or regulations
applicable to the Assets. There has been no default with respect to
any court order applicable to, and there is no court order currently
applicable to the Assets. Gateway has no reason to believe that any
litigation will be brought or threatened in connection with the
Assets.
(vii) No Environmental Conditions. To Gateway's knowledge, there
are no material violations of applicable environmental laws affecting
the Assets. No notice or action alleging such violation is pending or,
to Gateway's knowledge, threatened against the Assets.
(viii) No Broker. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement.
2. Buyer Representations. Buyer and Guarantor hereby jointly and
severally represent and warrant to Gateway as follows:
(i) Power; Authority; Authorization of Buyer. Buyer has all
requisite limited partnership power and authority (i) to execute and
deliver this Agreement, (ii) to consummate the transactions
contemplated hereby, and (iii) to perform all the obligations to be
performed by it hereunder. The execution and delivery of this
Agreement, the performance of all the terms and conditions hereof to
be performed by Buyer in its limited partnership capacity, and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary limited partnership action on the part of
Buyer. This Agreement has been duly executed and delivered by Buyer,
and constitutes the valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws
relating to or affecting the enforcement of creditors' rights
generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(ii) Power; Authority; Authorization of Guarantor. Guarantor has
all requisite limited liability company power and authority (i) to
execute and deliver this Agreement, (ii) to consummate the
transactions contemplated hereby for which it is responsible, and
(iii) to perform all the obligations to be performed by it hereunder.
The execution and delivery of this Agreement, the performance of all
the terms and conditions hereof to be performed by Guarantor in its
limited liability company capacity, and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary limited liability company action on the part of Guarantor.
This Agreement has been duly executed and delivered by Guarantor for
the limited purpose of guaranteeing the Closing Payment, and
constitutes the valid and binding obligation of Guarantor, enforceable
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against Guarantor in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws
relating to or affecting the enforcement of creditors' rights
generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Pursuant to Article I, Section 4, all obligations of Guarantor under
this Agreement automatically expire when Buyer and/or Guarantor has
paid the Closing Payment to Gateway.
(iii) No Conflicts. Neither the execution and delivery of this
Agreement or any other document or instrument to be executed and
delivered by Buyer pursuant to the transactions contemplated
hereunder, nor the performance of Buyer's obligations thereunder, will
(a) violate any regulation or court order to which Buyer is subject,
(b) conflict with or result in any breach of any provision of the
organizational documents of Buyer, or (c) require any notice,
expiration of any waiting period, filing with, or permit,
authorization, consent or approval of, any governmental authority or
other person.
(iv) No Broker. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement.
3. Survival. The representations and warranties in this Article II
shall survive until the date that is six months from the Closing Date; provided,
however, that the representations and warranties in Section 1.(iv) shall survive
for the applicable statute of limitations period and the representations and
warranties in Sections 1.(i), 1.(ii), 2.(i) and 2.(ii) shall survive
indefinitely.
Article III
Miscellaneous
1. Contractor Lien. If TEPSCO, L.P. (the "Contractor Plaintiff")
ultimately succeeds in obtaining a final judgment or settlement against Gateway
with respect to its pending claim in connection with which Contractor has filed
a mechanic's lien against the Assets, Gateway shall, to the extent necessary to
secure the release of such lien, promptly pay the amount of such judgment or
settlement (the "Recovery Amount"). In the event that Gateway fails to pay any
Recovery Amount, then Buyer shall be entitled to offset the amount of any
Recovery Amount against any amount owing by Buyer to Gateway under that certain
Transportation Agreement entered into by and between Gateway and Buyer
contemporaneously herewith.
2. Expenses. Except as otherwise provided herein, each Party will
pay all fees and expenses incurred by it in connection with this Agreement and
the consummation of the transactions contemplated hereby.
3. Collection Costs.
(i) Buyer will pay to Gateway, on demand, all reasonable costs
and expenses which Gateway incurs to enforce any provision of this
Agreement or to otherwise collect any amounts due Gateway under this
Agreement, including, without limitation, reasonable attorneys' fees
and expenses, irrespective of whether litigation is commenced, and, if
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litigation is commenced, all court costs and reasonable expenses of
Gateway in connection therewith. Buyer's obligation to pay all such
costs and expenses of Gateway also applies to any appellate
proceedings (irrespective of which party prevailed at the trial court
or at the lower appellate court), any bankruptcy or like insolvency
proceedings and any arbitration or other proceedings involving this
Agreement or the rights of the Parties hereunder. Guarantor shall
guaranty all such payment obligations of Buyer to the extent related
to the Closing Payment.
(ii) Similarly, Gateway shall pay to Buyer, on demand, all
reasonable costs and expenses which Buyer incurs to enforce any
provision of this Agreement including, without limitation, reasonable
attorneys' fees and expenses, irrespective of whether litigation is
commenced, and, if litigation is commenced, all court costs and
reasonable expenses of Buyer also applies to any appellate proceedings
(irrespective of which party prevailed at the trial court or at the
lower appellate court), any bankruptcy or like insolvency proceedings
and any arbitration or other proceedings involving this Agreement or
the rights of the Parties and Guarantor hereunder.
4. Further Assurances. Each Party will from time to time after the
closing of the transactions contemplated hereby and without further
consideration, upon the request of the other Party, execute and deliver such
documents and take such actions as the other Party may reasonably request in
order to consummate more effectively the transactions contemplated hereby.
5. Assignment; Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Parties and their
respective successors. No Party may transfer or assign any of its rights or
obligations hereunder or any interest herein without the prior written consent
of the other Party, which consent may be withheld at any Party's sole
discretion.
6. Entire Agreement. This Agreement and the instruments attached as
exhibits and schedules hereto contain the entire understanding of the Parties
with respect to the matters addressed herein. There are no restrictions,
agreements, promises, representations, warranties, covenants, or undertakings
other than those expressly set forth or referred to herein. This Agreement and
the instruments attached as exhibits hereto supersede all prior agreements and
undertakings between the Parties with respect to the subject matter hereof. This
Agreement and its exhibits may be amended or modified only by a written
instrument duly executed by all of the Parties who are signatories to such
instrument.
7. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provision of this Agreement, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision or provisions
had never been contained herein.
8. Interpretation. The article and section headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
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9. Notices. All notices and other communications required or desired
to be given hereunder must be in writing and sent (properly addressed as set
forth below) by: (a) U.S. mail with all postage and other charges fully prepaid,
(b) hand delivery, or (c) e-mail or electronic facsimile transmission. A notice
will be deemed effective on the date on which such notice is received by the
addressee, if by mail or hand delivery, or on the date sent, if by e-mail or
facsimile. Each Party may change its address by notifying the other Parties of
such address change in accordance herewith.
If to Gateway: Gateway Pipeline Company
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
Telephone (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Shook, Hardy & Bacon, L.L.P.
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxx
Telephone (000) 000-0000
If to Buyer: Madisonville Gas Processing, LP
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000)000.0000
Facsimile: (000)000.0000
with a copy to: Xxxxxx & Xxxxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
10. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Texas,
without regard to any conflict of law rules.
11. Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one and the same instrument.
10. No Third-Party Beneficiary. Except as expressly provided herein,
this Agreement is not intended to create nor shall it be construed to create,
any rights in any Third Party beneficiaries.
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IN WITNESS WHEREOF, the undersigned Parties have caused this Agreement to
be executed and delivered as of the Effective Date.
GATEWAY PIPELINE COMPANY
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
MADISONVILLE GAS PROCESSING, LP
By: Madisonville GP, LLC , its
general partner
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Manager
BEAR CUB INVESTMENTS, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
EXHIBITS
Exhibit A--Conveyance, Assignment, and Xxxx of Sale
Schedule 1.(ii) Liens
Schedule 1.(iii) Consents
Schedule 1.(vi) Litigation
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