Exhibit
10.2
PURCHASE AGREEMENT
by and among
PRO LP CORP.
a Delaware corporation and
PRO GP CORP.
a Delaware corporation
collectively, as Selling Parties,
and
BREITBURN ENERGY PARTNERS L.P.
a Delaware limited partnership,
as Buyer,
for the purchase and sale of
all of the Common Units of
BREITBURN ENERGY PARTNERS L.P.
a Delaware limited partnership
owned by Pro LP Corp. and Pro GP Corp.
dated as of June ___, 2008
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS
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ARTICLE II
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SALE AND PURCHASE
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Section
2.1
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Agreement
to Sell and to Purchase
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3
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Section
2.2
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Certain
Deliveries at Closing
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4
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Section
2.3
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Purchase
Price
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4
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF SELLING
PARTIES
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Section
3.1
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Organization
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4
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Section
3.2
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Title
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4
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Section
3.3
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Validity
of Agreement; Authorization
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4
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Section
3.4
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No
Conflict or Violation
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5
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Section
3.5
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Consents
and Approvals
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5
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Section
3.6
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Brokers
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5
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Section
3.7
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No
Other Representations
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5
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF BUYER
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Section
4.1
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Organization
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6
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Section
4.2
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Validity
of Agreement; Authorization
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6
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Section
4.3
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No
Conflict or Violation
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6
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Section
4.4
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Consents
and Approvals
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6
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Section
4.5
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Brokers
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7
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Section 4.6
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Financial
Ability
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7
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ARTICLE V
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COVENANTS
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Section
5.1
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Further
Assurances
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7
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Section
5.2
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Commercially
Reasonable Efforts
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7
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Section
5.3
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Confidential
Information
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7
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Section
5.4
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Transfer
Taxes and Tax Information
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8
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ARTICLE VI
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CLOSING DELIVERIES-SELLING PARTIES
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Section
6.1
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Receipt
of Documents
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8
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Section
6.2
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Consents
and Approvals
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8
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Section
6.3
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Contemporaneous
Closing Under the GP LLC Interest Agreement
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8
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Section
6.4
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Amendment
of Administrative Services Agreement with BreitBurn Energy
Company LP, Operations and Proceeds Agreement and Surface
Operating Agreement
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8
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ARTICLE VII
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CLOSING DELIVERIES-BUYER
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Section
7.1
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Receipt
of Documents
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9
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Section
7.2
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Consents
and Approvals
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9
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Section
7.3
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Contemporaneous
Closing Under the GP LLC Interest Agreement
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9
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ARTICLE VIII
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[RESERVED]
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ARTICLE IX
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SURVIVAL; INDEMNIFICATION
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Section
9.1
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Survival
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9
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Section
9.2
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Indemnification
Coverage
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9
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Section
9.3
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Procedures
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11
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Section
9.4
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Waiver
of Consequential, Etc., Damages
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11
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Section
9.5
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Compliance
with Express Negligence Rule
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11
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Section
9.6
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Remedy
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12
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Section
9.7
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Tax
Treatment of Indemnity Payments
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12
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ARTICLE X
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MISCELLANEOUS PROVISIONS
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Section
10.1
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Publicity
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12
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Section
10.2
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Successors
and Assigns; No Third Party Beneficiaries
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12
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Section
10.3
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Investment
Bankers, Financial Advisors, Brokers and Finders
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12
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Section
10.4
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Fees
and Expenses
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12
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Section
10.5
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Notices
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13
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Section
10.6
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Entire
Agreement
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14
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Section
10.7
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Amendments
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14
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Section
10.8
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Severability
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14
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Section
10.9
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Titles
and Headings
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14
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Section
10.10
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Signatures
and Counterparts
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14
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Section
10.11
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Enforcement
of the Agreement; Damages
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14
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Section
10.12
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Governing
Law
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15
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Section
10.13
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Disclosure
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15
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Section 10.14
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Consent
to Jurisdiction
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15
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Disclosure Schedules
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Schedule
2.3
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Purchase
Price Allocation
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Schedule
3.2
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Transfer
Restrictions
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Schedule
3.4
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Selling
Parties’ No Conflict or Violation
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Schedule
3.5
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Selling
Parties’ Consents and Approvals
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Schedule
3.6
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Selling
Parties’ Brokers
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Schedule
4.3
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Buyer’s
No Conflict or Violation
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Schedule
4.4
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Buyer’s
Consents and Approvals
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Schedule 4.5
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Buyer’s
Brokers
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Exhibits
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Assignment
Separate from Certificate (Pro LP)
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Exhibit 2.2(a)(ii)
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Assignment
Separate from Certificate (Pro GP)
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Exhibit
6.4(a)
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Amendment
to Administrative Services Agreement
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Exhibit
6.4(b)
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Amendment
to Operations and Proceeds Agreement
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Amendment
to Surface Operating Agreement
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Exhibit
7.3
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Acknowledgement
and Termination of Omnibus Agreement
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PURCHASE AGREEMENT
THIS
PURCHASE AGREEMENT (this “
Agreement ”)
is made and entered into as of this 17th day of June, 2008, by and
among PRO LP CORP., a Delaware corporation (“
Pro LP ”),
and PRO GP CORP., a Delaware corporation (“
Pro GP ,”
and collectively with Pro LP, the “
Selling Parties ”),
and BREITBURN ENERGY PARTNERS L.P., a Delaware limited partnership
(“
Buyer ”).
W I T N E S S E T H:
WHEREAS ,
Pro LP owns 14,344,659 common units (“
Common Units ”)
representing limited partnership interests in BreitBurn Energy
Partners L.P., a Delaware limited partnership (the “
Partnership ”,
and such Common Units owned by Pro LP being referred to herein as
the “
Pro LP Common Units ”),
which represent an approximate 21.5% limited partner interest in
the Partnership;
WHEREAS ,
Pro GP owns 60,303 Common Units (the “
Pro GP Common Units ,”
and together with the Pro LP Common Units, the “
Sellers’ Common Units ”),
which represent an approximate 0.1% limited partner interest in the
Partnership;
WHEREAS ,
Buyer desires to purchase the Sellers’ Common Units from the
respective Selling Parties, and each Selling Party desires to sell
the Sellers’ Common Units owned by it to Buyer, in each case
upon the terms and subject to the conditions set forth in this
Agreement;
WHEREAS ,
Pro LP and Pro GP own certain limited liability company interests
in the entity that is the sole member of the general partner of the
Partnership, which limited liability company interests are being
sold to Buyer contemporaneously herewith pursuant to a separate
Purchase Agreement among Pro LP, Pro GP and Buyer of even date
herewith (the “
GP LLC Interest Agreement ”);
and
WHEREAS ,
as of the date hereof, Provident Energy Ltd., an Alberta
corporation (“
Seller Parent ”),
has entered into a Guaranty Agreement (the “
Seller Parent Guaranty ”)
in favor of Buyer and the other Buyer Indemnified Parties, pursuant
to which the Seller Parent has guaranteed the performance by the
Selling Parties of all of their obligations under this Agreement
and the Transaction Documents.
NOW, THEREFORE ,
in consideration of the mutual terms, conditions and other
agreements set forth herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
As
used herein, the following terms have the following
meanings:
“
Affiliate ”
of a Person means a Person that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under
common control with, the first-mentioned Person.
“
Agreement ”
has the meaning assigned to such term in the Preamble.
“
Bidder Confidentiality Agreements ”
has the meaning assigned to such term in
Section 5.3(b) .
“
Buyer ”
has the meaning assigned to such term in the Preamble.
“
Buyer Indemnified Parties ”
has the meaning assigned to such term in
Section 9.2(a) .
“
Closing ”
has the meaning assigned to such term in
Section 2.1(b) .
“
Closing Date ”
has the meaning assigned to such term in
Section 2.1(b) .
“
Common Units ”
has the meaning assigned to such term in the Recitals.
“
Encumbrances ”
has the meaning assigned to such term in
Section 2.1(a)(i) .
“
Exchange Act ”
shall mean the Securities Exchange Act of 1934, as
amended.
“
GP LLC Interest Agreement ”
has the meaning assigned to such term in the Recitals.
“
Governmental Authority ”
has the meaning assigned to such term in
Section 3.4 .
“
Indemnified Party ”
has the meaning assigned to such term in
Section 9.2(c)(i) .
“
Indemnifying Party ”
has the meaning assigned to such term in
Section 9.2(c)(i) .
“
Loss ”
or “
Losses ”
has the meaning assigned to such term in
Section 9.2(a) .
“
Organizational Documents ”
shall mean certificates of incorporation, by-laws, certificates of
formation, limited liability company operating agreements,
partnership or limited partnership agreements or other formation or
governing documents of a particular entity.
“
Partnership ”
has the meaning assigned to such term in the Recitals.
“
Partnership Agreement ”
shall mean the First Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of October 10,
2006.
“
Partnership Entities ”
shall mean the Partnership and its Subsidiaries.
“
Person ”
shall mean an individual, corporation, association, trust, limited
liability company, limited partnership, limited liability
partnership, partnership, incorporated organization, other entity
or group (as defined in Section 13(d)(3) of the Exchange
Act).
“
Pro GP ”
has the meaning assigned to such term in the Preamble.
“
Pro GP Common Units ”
has the meaning assigned to such term in the Recitals.
“
Pro LP ”
has the meaning assigned to such term in the Preamble.
“
Pro LP Common Units ”
has the meaning assigned to such term in the Recitals.
“
Purchase Price ”
has the meaning assigned to such term in
Section 2.3 .
“
Seller Indemnified Parties ”
has the meaning assigned to such term in
Section 9.2(b) .
“
Seller Parent ”
has the meaning assigned to such term in the Recitals.
“
Seller Parent Guaranty ”
has the meaning assigned to such term in the Recitals.
“
Sellers’ Common Units ”
has the meaning assigned to such term in the Recitals.
“
Selling Parties ”
has the meaning assigned to such term in the Preamble.
“
Subsidiary ”
when used with respect to any party means any corporation or other
organization of which such party directly or indirectly owns at
least a majority of the securities or other interests having by
their terms ordinary voting power to elect a majority of the board
of directors or others performing similar functions with respect to
such corporation or other organization.
“
Transaction Documents ”
shall mean the agreements, contracts, documents, instruments and
certificates provided for in this Agreement to be entered into by
one or more of the parties hereto or any of their Affiliates in
connection with the sale of Sellers’ Common Units
contemplated by this Agreement, including without limitation the
Seller Parent Guaranty.
“
Transfer Taxes ”
has the meaning assigned to such term in
Section 5.4 .
ARTICLE II
SALE AND PURCHASE
Section
2.1
Agreement to Sell and to Purchase .
(a)
On
the Closing Date (as hereinafter defined) and upon the terms
and subject to the conditions set forth in this
Agreement:
(i)
Pro
LP shall sell, assign, transfer, convey and deliver to Buyer,
and Buyer shall purchase and accept from Pro LP, the Pro LP
Common Units, free and clear of any pledges, restrictions on
transfer, proxies and voting or other agreements, liens,
claims, charges, mortgages, security interests or other legal
or equitable encumbrances, limitations or restrictions of any
nature whatsoever (“
Encumbrances ”),
except for restrictions on transfer arising under applicable
securities laws or as may be set forth in the Partnership
Agreement; and
(ii)
Pro
GP shall sell, assign, transfer, convey and deliver to Buyer,
and Buyer shall purchase and accept from Pro GP, the Pro GP
Common Units, free and clear of any Encumbrances, except for
restrictions on transfer arising under applicable securities
laws or as may be set forth in the Partnership
Agreement.
(b)
The
closing of such sale and purchase (the “Closing”)
shall take place at 8:00 a.m. (Central Time), on the date
hereof (the “
Closing Date ”)
at the offices of Andrews Kurth LLP in Houston, Texas or at such
other place as the parties hereto shall agree in
writing.
Section
2.2
Certain Deliveries at Closing .
(a)
At
the Closing, the Selling Parties shall make the following
deliveries to Buyer:
(i)
Pro
LP shall deliver to Buyer a duly executed certificate endorsed
to Buyer, representing 14,344,659 Common Units or a duly
executed Assignment Separate from Certificate in the form
attached as
Exhibit 2.2(a)(i) hereto;
(ii)
Pro
GP shall deliver to Buyer a duly executed certificate endorsed
to Buyer, representing 60,303 Common Units or a duly executed
Assignment Separate from Certificate (Pro LP) in the form
attached as
Exhibit 2.2(a)(ii) hereto;
and
(iii)
a
certificate of non-foreign status of each of the Selling
Parties meeting the requirements of Treasury Regulation
Section 1.1445-2(b)(2).
(b)
At
the Closing, Buyer shall make payment of the Purchase Price,
as provided in
Section 2.3 below.
Section
2.3
Purchase Price
. The
aggregate purchase price for the Sellers’ Common Units (the
“
Purchase Price ”)
shall be $335,033,175, subject to adjustment, if applicable, only
pursuant to
Section 9.7 .
At the Closing, Buyer shall deliver to the Selling Parties the
Purchase Price, which shall be paid by wire transfer to the Selling
Parties of immediately available funds made to such bank account or
accounts as designated in writing by the Selling Parties on or
before the Closing Date. The Purchase Price shall be allocated
between the Selling Parties in accordance with
Schedule
2.3 .
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLING
PARTIES
As
of the date hereof, each of the Selling Parties hereby
represents and warrants, jointly and severally, to Buyer as
follows:
Section
3.1
Organization .
Each of Pro LP and Pro GP is a corporation duly formed, validly
existing and in good standing under the laws of the State of
Delaware.
Section
3.2
Title .
Except as provided in the Partnership Agreement and for
restrictions on transfer set forth on
Schedule
3.2 or
arising under applicable securities laws, (i) Pro LP owns all of
the Pro LP Common Units, free and clear of any Encumbrances, and
(ii) Pro GP owns all of the Pro GP Common Units, free and clear of
any Encumbrances.
Section
3.3
Validity of Agreement; Authorization .
Each of the Selling Parties has the power and authority to enter
into this Agreement and the Transaction Documents to which it is
party and to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and such Transaction
Documents and the performance of the Selling Parties’
obligations hereunder and thereunder have been duly authorized by
the Board of Directors of Pro LP and the Board of Directors of Pro
GP, as applicable, and no other proceedings on the part of any of
the Selling Parties are necessary to authorize such execution,
delivery and performance. This Agreement and the Transaction
Documents to which any of the Selling Parties is party each have
been duly executed and delivered by each of the Selling Parties, as
applicable, and constitute such Selling Party’s valid and
binding obligation enforceable against such Selling Party in
accordance with its terms (except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar law affecting the enforcement of
creditors’ rights generally or by general equitable
principles).
Section
3.4
No Conflict or Violation .
The execution, delivery and performance of this Agreement and the
Transaction Documents to which each of the Selling Parties is party
by each of the Selling Parties do not: (a) violate or conflict with
any provision of the Organizational Documents of any Selling Party;
(b) violate any applicable provision of law, statute, judgment,
order, writ, injunction, decree, award, rule, or regulation of any
foreign, federal, state or local government, court, arbitrator,
agency or commission or other governmental or regulatory body or
authority (“
Governmental Authority ”);
(c) violate, result in a breach of, constitute (with due notice or
lapse of time or both) a default or cause any obligation, penalty
or premium to arise or accrue under any material contract, lease,
loan agreement, mortgage, security agreement, trust indenture or
other agreement or instrument to which any of the Selling Parties
is a party or by which any of them is bound or to which any of
their respective properties or assets is subject; or (d) result in
the creation or imposition of any Encumbrance upon any of the
properties or assets of any of the Partnership Entities, except in
the cases of clauses (b) through (d) above, as set forth on
Schedule
3.4 .
Section
3.5
Consents and Approvals .
Except as disclosed on
Schedule
3.5 ,
no material consent, approval, waiver or authorization of, or
filing, registration or qualification with, any Governmental
Authority or any other Person (on the part of any of the Selling
Parties) is required for any such party to execute and deliver this
Agreement or to perform its respective obligations hereunder. To
the knowledge of the Selling Parties, there are no Transfer Taxes
arising under the laws of Canada resulting from the transactions
contemplated by this Agreement.
Section
3.6
Brokers .
Except as disclosed on
Schedule
3.6 ,
neither of the Selling Parties has employed the services of an
investment banker, financial advisor, broker or finder in
connection with this Agreement or any of the transactions
contemplated hereby for which any of Buyer or any Partnership
Entity would have any obligation or liability.
Section
3.7
No Other Representations .
Except as and to the extent set forth in this
Article III ,
neither of the Selling Parties nor any other Person makes any
representations or warranties whatsoever to Buyer, and the Selling
Parties hereby disclaim all liability and responsibility for any
representation, warranty, statement, or information made,
communicated, or furnished (orally or in writing) to Buyer or its
Affiliates or representatives (including any opinion, information,
projection, or advice that may have been or may be provided to
Buyer by any director, officer, employee, agent, consultant, or
representative of either of the Selling Parties or any Affiliate
thereof) other than as and to the extent set forth in this
Article III .
Neither of the Selling Parties nor any other Person makes any
representations or warranties to Buyer regarding the probable
success or profitability of any of the Partnership Entities or
their respective businesses, individually or on a consolidated
basis.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As
of the date hereof, Buyer hereby represents and warrants to
each of the Selling Parties as follows:
Section
4.1
Organization .
Buyer is a limited partnership duly formed, validly existing and in
good standing under the laws of the State of Delaware and has all
requisite power and authority to own its properties and assets and
to conduct its business as now conducted.
Section
4.2
Validity of Agreement; Authorization .
Buyer has the power and authority to enter into this Agreement and
the Transaction Documents to which Buyer is a party and to carry
out its obligations hereunder and thereunder. The execution and
delivery of this Agreement and such Transaction Documents and the
performance of Buyer’s obligations hereunder and thereunder
have been duly authorized by the board of directors of the general
partner of Buyer and no other proceedings on the part of Buyer are
necessary to authorize such execution, delivery and performance.
This Agreement and the Transaction Documents to which Buyer is a
party each have been or will be at the Closing, as app
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