EXHIBIT 10.3
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") dated February 20, 2002, is
made and entered into by and between Touchstone Resources USA, Inc., a Texas
corporation (herein referred to as "Touchstone"), and Expression Graphics,
Inc.,( herein referred to as "EGI"), a Nevada corporation, but shall be
effective as of February 17, 2002 ("Effective Date"). Touchstone and EGI are
sometimes separately called a "party" and together referred to herein as
"parties."
WHEREAS, Touchstone currently owns, and has the right to earn, pursuant
to the terms and conditions of certain agreements and a Farmout Agreement,
certain interests in (a) the existing Louisiana State Lease ▇▇. ▇▇▇▇▇ ▇▇. ▇
▇▇▇▇, (▇) Louisiana state oil, gas and mineral leases, (c) surface equipment,
subsurface equipment, and other real, personal and mixed property located on the
lands covered by the Louisiana state oil, gas and mineral leases and used in the
operation thereof, and (d) contract rights and similar rights associated with
operation of the Louisiana state oil, gas and mineral leases, all located in
▇▇▇▇▇▇▇▇▇▇ Parish, State of Louisiana (herein sometimes referred to as "North
Hell Hole Bayou Prospect");
WHEREAS, Touchstone has entered into two (2) separate purchase and sale
agreements to acquire certain undivided interests owned by SKH Management, L.P.
, which are located in the "North Hell Hole Bayou Prospect," and which are more
fully described in the Exhibit "A's" attached to the Contracts (as the term is
defined hereinbelow). All of the said undivided interests, working interests,
net revenue interests, overriding royalty interests, and contractual rights to
be assigned, transferred and conveyed to EGI, are more fully described in the
Exhibit "A's" attached to the Contracts, all which shall hereinafter be referred
to as the "Properties";
WHEREAS, Touchstone desires to sell all of its interests in the
Contracts and EGI desires to purchase such interests in the Contracts from
Touchstone and assume all obligations and duties relating thereto, in accordance
with the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto, with the intent to be legally
bound, in return for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, including the mutual exchange of
covenants and promises herein contained, agree as follows:
1. Touchstone does hereby grant, bargain, sell, transfer, assign and
convey to EGI all of Touchstone's rights, title, and interests (of whatever kind
or character, whether legal or equitable, and whether vested or contingent)
currently owned, and to be earned, in and to the following agreements, all of
which are hereinafter collectively referred to in this Agreement as the
"Contracts":
a. Purchase and Sale Agreement dated February 17, 2002, by and
between SKH Management, L.P., as "Seller," and Touchstone
Resources USA, Inc., as "Buyer", a true and correct copy of
which is attached hereto as Exhibit "A," and is incorporated
herein by reference for all purposes;
b. Purchase and Sale Agreement dated February 17, 2002, by and
between SKH Management, L.P., as "Seller ,"and Touchstone
Resources USA, Inc., as "Buyer", a true and correct copy of
which is attached hereto as Exhibit "B," and is incorporated
herein by reference for all purposes; and
c. A Letter Agreement dated February 17, 2002, from Touchstone
Resources USA, Inc. to SKH Management, L.P., the terms of which
have been adopted, ratified, and confirmed by SKH Energy
Partners II, L.P., a true and correct copy of which is attached
hereto as Exhibit "C," and is incorporated herein by reference
for all purposes.
Notwithstanding the foregoing assignment, the provisions of paragraph 5
of the Letter Agreement shall inure to the benefit of both Touchstone and EGI
and shall remain effective as to all parties.
2. EGI does hereby assume all of the obligations, duties, and/or
liabilities under the terms of the Contracts, and EGI does hereby agree to
indemnify, defend, save and hold harmless Touchstone (and its respective
affiliates, officers, directors, employees, attorneys, contractors, and agents
of Touchstone and such affiliates) from any and all claims, causes of action,
liabilities, damages of any nature and kind, losses, costs or expenses
(including, without limitation, court costs and attorneys fees), arising out of
or in any manner related to or connected with the Contracts after the Effective
Date.
3. Touchstone and SKH Management, L.P., have fully executed the
Contracts, and Touchstone has delivered to SKH Management, L.P. EGI's corporate
check number 102, in the amount of Six Million And No/100 Dollars
($6,000,000.00) which represents the total Purchase Price as set forth in the
Contracts. SKH Management, L.P. will hold EGI's corporate check, in trust, until
EGI transfers to SKH Management, L.P., by wire transfer, immediately available
funds, to SKH Management, L.P.'s designated United States bank account, the
Purchase Price set forth in the Contracts, by 3:00 p.m. central time, February
20, 2002. Simultaneous with delivery by EGI of written confirmation of the wire
transfer of the Purchase Price, SKH Management, L.P., will release and deliver
the original un-negotiated EGI corporate check held in trust by SKH Management,
L.P., and fully executed conveyances of the Properties, directly to EGI, in the
same form as identified in Exhibit "B" to the Contracts, modified to include the
provisions of paragraph 4 herein. In the event that the funds are not wire
transferred by EGI by 3:00 p.m. central time, February 20, 2002, then said
corporate check will be negotiated by SKH to satisfy the Purchase Price as set
forth in the Contracts, and deliver the conveyances of the Properties as set
forth above. EGI does hereby acknowledge that pursuant to the terms of the
Contracts, "Additional Sums" are required to be paid by EGI to SKH Management,
L.P. within forty five (45) days of the Effective Date of the Contracts.
4. Simultaneous with the delivery of the executed conveyances of the
Properties from SKH to EGI, EGI will convey, or caused to be conveyed, to
Touchstone a reversionary interest in all of the Properties acquired by EGI
under the terms of the Contracts. Touchstone's reversionary interest shall be a
twenty percent (20%) back-in after payout (herein referred to as the "Back-In")
as to all of the interests relating to or arising out of the Properties acquired
by EGI under the Contracts, free and clear of any liens, mortgages, and/or
encumbrances of any kind or nature. The Back-In shall be calculated on a well by
well basis for any well(s) drilled on the Properties or on lands pooled
therewith. All costs and expenses to be utilized for the calculation of "payout"
for the existing Louisiana State Lease No. 16141 No. 1 Well, shall only be those
costs and expenses incurred by EGI, as hereinafter defined in this paragraph,
after the Effective Date of this Agreement In no event shall the Purchase Price,
the Additional Sums, or any other costs incurred by EGI in the acquisition of
the Properties, ever be included as a cost and expense for the purposes of
calculating "payout"as defined herein. For the purposes of this Agreement
"payout" shall mean the time when EGI has recovered from its share of the
proceeds of all production from a well(after deducting state royalty burdens)
all of EGI's proportionate share of unrecovered costs of drilling, sidetracking,
deepening, completing, testing, reworking, and equipping to produce such
well(not to include the costs of pipelines, production facilities, treatment, or
transportation costs) and EGI's proportionate share of costs of operating such
well during the recovery period. The pertinent provisions of the 1984-▇▇▇▇▇
Model Form Accounting Procedure(which is attached as Exhibit "B" to the Joint
Operating Agreement identified in the Contracts) shall be followed in computing
the costs to be recovered and in permitting Touchstone to audit the same during
any payout period and for a period of twenty-four (24) months after the end of
the calendar year in which payout occurs.
Upon the completion of a well capable of production in commercial
paying quantities, EGI shall within thirty (30) days thereafter, furnish
Touchstone a written statement reflecting the costs to be recovered by EGI under
the foregoing provisions, and thereafter a quarterly statement reflecting the
progress of recovery of such cost. Touchstone's Back-In shall automatically vest
and shall be effective as of 7:00 a.m on the day following the day "payout" is
achieved on said well with no further action being required by Touchstone. EGI
shall immediately furnish Touchstone with all documents necessary to reflect the
Back-In, and to transfer the interests, in a recordable form, to Touchstone.
5. Representations and Warranties of Touchstone. Touchstone represents
and warrants to EGI as follows:
a. Organization. Touchstone is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Texas.
b. Authority and Conflicts. Touchstone has full power and authority
to carry on its business as presently conducted, to enter into
this Agreement, and to perform its obligations under this
Agreement. The execution and delivery of this Agreement by
Touchstone does not, and the consummation of the transactions
contemplated by this Agreement shall not violate, conflict with,
or require the consent of any person or entity under any
provision of Touchstone's bylaws or other governing documents,
any material agreements or contracts to which Touchstone is a
party, or any material agreements or contracts concerning the
Properties, save and except Louisiana State Lease ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Lease 17289, that
certain Participation Agreement by and between SKH Management,
L.P. and Touchstone Resources USA, Inc. dated March 15, 2001,
that certain Joint Operating Agreement by and between Seneca
Resources as Operator and SKH Management, L.P. et al as
Non-Operators, that certain Farmout Agreement by and between
Devon Energy and SKH Management, L.P. as amended and the
Contracts. The execution and delivery of this Agreement has
been, and the performance of this Agreement and the transactions
contemplated by this Agreement shall be at the time required to
be performed, duly and validly authorized by all requisite
corporate action on the part of Touchstone.
c. Enforceability. This Agreement has been duly executed and
delivered on behalf of Touchstone and constitutes the legal and
binding obligation of Touchstone enforceable in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, reorganization, or moratorium statues, equitable
principles, or other similar laws affecting the rights of
creditors generally ("Equitable Limitations").
d. Litigation and Claims. There are no pending suits, actions, or
other proceedings in which Touchstone is a party (or, to
Touchstone's knowledge, which have been threatened to be
instituted against Touchstone) which affect Touchstone's
interest to be transferred hereunder, in any material respect or
effecting the execution and delivery of this Agreement or the
consummation of the transaction contemplated herein.
e. Accuracy of Representations. To the best of Touchstone's
knowledge, no representation or warranty by Touchstone in this
Agreement or any agreement or document delivered by Touchstone
pursuant to this Agreement contains an untrue statement of a
material fact or omits to state a material fact necessary to
make the statements contained in any representation or warranty,
in light of the circumstances under which it was made, not
misleading
f. Encumbrances. Touchstone shall also represent and warrant that
between that there are no liens, encumbrances, reversions or
reassignment obligations caused by Touchstone adverse to or
affecting the interest to be assigned hereunder, other than
those identified in the Contracts and the interests retained by
Touchstone herein.
6. Representations by EGI. EGI represents to Touchstone that the
following statements are true and correct:
a. Organization. EGI is a corporation duly organized and legally
existing under the laws of the State of Nevada and has the power
and authority to carry on its business as presently conducted,
to own and hold the Properties, and to perform all obligations
required by this Agreement.
b. Authority. The execution and delivery of this Agreement has been
authorized by all necessary action, corporate and otherwise, on
the part of EGI. Execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated by
this Agreement will not, violate or be in conflict with any
agreement, instrument, judgment, order, decree, law or
regulation by which EGI is bound.
c. Binding Agreement. Subject to laws and equitable principles
affecting the rights of creditors, this Agreement is a binding
obligation of EGI enforceable according to its terms. There are
neither bankruptcy nor reorganization proceedings pending or, to
EGI's knowledge, threatened against EGI.
d. EXCEPT AS SET FORTH HEREIN, EGI IS NOT RELYING ON ANY STATEMENT
OR ANY INFORMATION PROVIDED BY TOUCHSTONE IN ITS DECISION TO
PURCHASE THE PROPERTIES AND ASSUME THE OBLIGATIONS AND DUTIES OF
THE CONTRACTS. EGI HEREBY WAIVES AND ACKNOWLEDGES THAT
TOUCHSTONE HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, AND TOUCHSTONE HEREBY EXPRESSLY DISCLAIMS
AND NEGATES ANY REPRESENTATION AND WARRANTY, EXPRESS OR IMPLIED,
WITH RESPECT OR RELATING TO (1) TITLE TO ANY OF THE PROPERTIES,
(2) THE CONTENTS, CHARACTER, OR NATURE OF ANY DESCRIPTIVE
MEMORANDUM, OR ANY REPORT OF ANY PETROLEUM ENGINEERING
CONSULTANT, OR ANY GEOLOGICAL OR SEISMIC DATA OR INTERPRETATION
RELATING TO THE PROPERTIES, (3) THE ACCURACY, COMPLETENESS, OR
MATERIALITY OF ANY INFORMATION, DATA, OR OTHER MATERIALS
(WHETHER WRITTEN OR ORAL) NOW, HERETOFORE, OR HEREAFTER,
FURNISHED TO EGI BY OR ON BEHALF OF TOUCHSTONE, (4) THE
QUANTITY, QUALITY, OR RECOVERABILITY OF PETROLEUM SUBSTANCES IN
OR FROM THE PROPERTIES, (5) ANY ESTIMATES OF THE VALUE OF THE
PROPERTIES OR FUTURE REVENUES TO BE GENERATED BY THE PROPERTIES,
INCLUDING, WITHOUT LIMITATION, PRICING ASSUMPTIONS OR THE
ABILITY TO SELL OR MARKET ANY PETROLEUM SUBSTANCES AFTER
CLOSING, (6) THE PRODUCTION OR RATES OF PRODUCTION OF PETROLEUM
SUBSTANCES FROM THE PROPERTIES, OR WHETHER PRODUCTION HAS BEEN
CONTINUOUS, OR IN PAYING QUANTITIES THEREFROM, (7) THE
MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN, OR
MARKETABILITY OF THE PROPERTIES, (8) RECOMPLETION OPPORTUNITIES,
EXPLORATION POTENTIAL, OR DECLINE RATES, OR (9) ANY OTHER
MATERIALS OR INFORMATION THAT MAY HAVE BEEN MADE AVAILABLE OR
COMMUNICATED IN ANY MANNER WHATSOEVER TO EGI OR ITS AFFILIATES,
OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
CONSULTANTS, REPRESENTATIVES, OR ADVISORS IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS ASSIGNMENT OR ANY DISCUSSION
OR PRESENTATION RELATING THERETO. TOUCHSTONE FURTHER EXPRESSLY
DISCLAIMS AND NEGATES ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, RELATING TO THE CONDITION OF ANY IMMOVABLE PROPERTY,
MOVABLE PROPERTY, EQUIPMENT, INVENTORY, MACHINERY, FIXTURES, AND
PERSONAL PROPERTY CONSTITUTING PART OF THE PROPERTY INCLUDING,
WITHOUT LIMITATION, (a) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF
EGI UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF
CONSIDERATION OR RETURN OF THE PURCHASE PRICE, (e) ANY IMPLIED
OR EXPRESS WARRANTY OF FREEDOM FROM PATENT OR TRADEMARK
INFRINGEMENT, (f) ANY IMPLIED OR EXPRESS WARRANTY OF FREEDOM
FROM REHIBITORY VICES OR DEFECTS OR OTHER VICES OR DEFECTS,
WHETHER KNOWN OR UNKNOWN, (g) ANY AND ALL IMPLIED WARRANTIES
EXISTING UNDER APPLICABLE LAW NOW OR HEREAFTER IN EFFECT, AND
(h) ANY IMPLIED OR EXPRESS WARRANTY REGARDING ENVIRONMENTAL
LAWS, THE RELEASE OF MATERIALS INTO THE ENVIRONMENT, OR
PROTECTION OF THE ENVIRONMENT OR HEALTH, IT BEING THE EXPRESS
INTENTION OF TOUCHSTONE AND EGI THAT THE IMMOVABLE PROPERTY,
MOVABLE PROPERTY, EQUIPMENT, INVENTORY, MACHINERY, FIXTURES, AND
PERSONAL PROPERTY SHALL BE CONVEYED TO EGI "AS IS, WHERE IS" AND
IN THEIR PRESENT CONDITION AND STATE OF REPAIR, AND EGI
REPRESENTS TO TOUCHSTONE THAT EGI HAS MADE OR CAUSED TO BE MADE
SUCH INSPECTIONS WITH RESPECT TO THE IMMOVABLE PROPERTY, MOVABLE
PROPERTY, EQUIPMENT, INVENTORY, MACHINERY, FIXTURES, AND
PERSONAL PROPERTY AS EGI DEEMS APPROPRIATE AND NECESSARY, AND
EGI ACCEPTS THE IMMOVABLE PROPERTY, MOVABLE PROPERTY, EQUIPMENT,
INVENTORY, MACHINERY, FIXTURES, AND PERSONAL PROPERTY "AS IS,
WHERE IS" IN THEIR PRESENT CONDITION AND STATE OF REPAIR. THE
PARTIES AGREE THAT THIS PARAGRAPH CONSTITUTES A CONSPICUOUS
LEGEND.
e. Securities Laws. EGI is acquiring the Properties herein for its
own account and not with the intent to make a distribution in
violation of the Securities Act of 1933, as amended. EGI
acknowledges that it and its officers and directors are
experienced in investments with limited liquidity through a
variety of entities and vehicles including but not limited to
Limited Partnerships and private placements and is a Accredited
Investor as that term is defined in the Securities Act of 1933,
as amended. EGI, at its sole risk and expense, has had
unrestricted access during normal business hours to the
Properties, the land files and accounting, engineering,
operational, geological and geophysical data, less and except
those deemed proprietary by Touchstone. EGI has conducted its
own independent evaluation of the Properties, and in the course
of same, EGI has had an opportunity to examine certain logs
generated in the drilling of the Seneca Resources Corporation
State Lease 16141 No.1 well, as follows:
1) Logging while drilling across pay zones, prepared by
Schlumberger.
2) Dual-induction open hole log across uppermost (N) pay
zones, prepared by ▇▇▇▇▇ Atlas
3) Cased hole porosity log (TDTP), prepared by Schlumberger
4) Petrophysical analysis of combined logs, prepared by
Schlumberger
Touchstone acknowledges that it provided these logs to EGI, and represents and
warrants that it provided said logs to EGI as received from Schlumberger and
▇▇▇▇▇ Atlas. Touchstone has made no statements or representations concerning the
present or future value of the anticipated income, costs, or profits, if any, to
be derived from the Properties. Any and all data, information and other
materials furnished by Touchstone are provided in good faith to EGI as an
accommodation and without warranty or representation as to quality and accuracy,
and any reliance on or use of same shall be at EGI's sole risk, except as
provided hereinabove.
7. Books and Records. Touchstone agrees to make available to EGI, with
the exception of books of account, tax returns and correspondence relating
thereto, Touchstone's proprietary, technical or interpretive information and any
documents of overall significance to Touchstone's business, its records relating
to the title of said properties, including, but not limited to abstracts, title
reports, title opinions, leases, lease purchase reports, operating agreements,
letter agreements, contracts, gas purchase contracts and any other informative
material relating to said Properties in its possession. EGI will pay for its own
legal representation and Touchstone agrees to pay for its own legal
representation with regard to this transaction.
8. Conditions Precedent to Closing.
8.1. Conditions Precedent to Obligations of EGI. The obligations of
EGI under this Agreement are expressly subject to completion of each of the
following conditions:
1. Each and every representation and warranty of Touchstone
made to EGI under this Agreement shall be true and accurate
in all material respects.
2. Touchstone shall have performed and complied in all
material respects with ( or compliance therewith shall have
been waived by EGI) each and every covenant and agreement
required by this Agreement to be performed, or complied
with by Touchstone.
3. No suit, action, or other proceedings, shall be pending or
threatened before any court or government agency seeking to
restrain, prohibit, or obtain material damages or other
material relief in connection with the consummation of the
transaction contemplated by this Agreement.
8.2 Conditions Precedent to Obligations of Touchstone. The
obligations of Touchstone under this Agreement are expressly subject to each of
the following conditions being met:
a. Each and every representation of EGI under this Agreement
shall be true and accurate in all material respects.
b. EGI shall have performed and complied in all material
respects with (or compliance therewith shall have been
waived by Touchstone) each and every covenant and agreement
required by this Agreement to be performed or complied with
by EGI.
c. No suit, action, or other proceedings shall be pending or
threatened before any court or government agency seeking to
restrain, prohibit, or obtain material damages or other
material relief in connection with the consummation of the
transaction contemplated by this Agreement.
9. Notice. All notices required or permitted under this Agreement shall
be effective upon receipt if personally delivered, if mailed by registered or
certified mail, postage prepaid, or if delivered by telegram, telecopy or
facsimile if directed to the parties as follows:
TO Touchstone: TO EGI:
Touchstone Resources USA, Inc. Expression Graphics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may give written notice of a change in the address or individual to
whom delivery shall be made provided such notice is given at least ten (10)
business days prior to becoming effective.
10. Miscellaneous Matters.
a. Choice of Law. TIME IS OF THE ESSENCE IN THIS AGREEMENT. This
Agreement and all operations hereunder shall be subject to all
valid and applicable laws, orders, rules and regulations of any
governmental body having jurisdiction over such operations. This
Agreement and the legal relations among the parties hereto shall
be governed by and construed in accordance with the substantive
laws of the State of Texas. This Agreement is deemed by and
between the parties to have been negotiated, accepted, executed,
delivered, and fully performable in Houston, ▇▇▇▇▇▇ County,
Texas. Touchstone and EGI agree that any dispute that arises
with respect to this agreement shall be arbitrated by a panel of
three (3) arbitrators in accordance with the Texas Arbitration
Act ("Act") and the rules of the American Arbitration
Association ("Rules"). The panel of arbitrators will consist of
one (1) arbitrator appointed by Touchstone, one (1) arbitrator
appointed by EGI, and one (1) arbitrator selected by the two (2)
appointed arbitrators. The decision of the arbitration panel
rendered pursuant to the Act and Rules shall be binding and
non-appealable upon the parties and may be enforced in any court
of competent jurisdiction. Any arbitration proceedings pursuant
to this Agreement shall be held in Houston, ▇▇▇▇▇▇ County,
Texas. The arbitrators shall not award punitive, consequential,
nor multiple damages in settlement of any dispute.
b. Waiver. Any of the terms, provisions, covenants,
representations, warranties or conditions hereof may be waived
only by a written instrument executed by the party waiving
compliance. Except as otherwise expressly provided in this
Agreement, the failure of any party at any time or times to
require performance of any provision hereof shall in no manner
affect such party's right to enforce the same.
c. Unenforceability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions
were omitted.
d. Legal Review. The parties acknowledge that they have had an
adequate opportunity to review each and every provision
contained in this Agreement, including the opportunity to submit
the same to legal counsel for review and comment. Based on said
review and consultation, the parties agree with each and every
term contained in the Agreement. Based on the foregoing, the
parties agree that the rule of construction that a contract be
construed against the drafter, if any, shall not be applied in
the interpretation and construction of this Agreement.
e. Continuing Obligations. All representations and warranties made
herein by Touchstone and EGI shall be continuing and shall be
true and correction as of the date hereof (and shall inure to
the benefit of the respective successors and assigns of
Touchstone and EGI), and all such representations and warranties
shall survive this Agreement.
f. Entirety. This Agreement, together with the Assignments to be
made, embodies the entire agreement between the parties,
superseding all prior agreements, negotiations, letters of
intent, arrangements and understandings related to the subject
matter hereof either written or oral, and may only be
supplemented, altered, amended, modified, or revoked by a
writing signed by duly authorized representatives of all the
parties hereto. Notwithstanding the provisions of this
paragraph, no party shall be bound by, subject to, or deemed a
party to, any agreement between the parties which have not been
duly executed by, or on behalf of, such party.
g. No Partnership. The parties hereto expressly do not intend to
create, and no provision hereof shall be construed as creating a
partnership, joint venture, mining partnership, corporation,
association or other relationship whereby any party hereto shall
ever be held liable for the acts either by omission or
commission, of the other, the liability of all the respective
parties hereto being several and not joint or collective.
h. Further Assurances. THE PARTIES AGREE TO EXECUTE AND DELIVER,
AFTER THE CLOSING, ANY AND ALL OTHER MUTUALLY ACCEPTABLE
INSTRUMENTS AND AGREEMENTS REASONABLY NECESSARY TO ACCOMPLISH
THE TRANSACTION CONTEMPLATED HEREBY. Each Party hereto shall
from time to time do and perform such further acts and execute
and deliver such further instruments, assignments and documents
as may be required or reasonably requested by the parties hereto
to carry out and effect the intentions and purposes of this
Agreement.
i. Successors and Assigns. All the terms, provisions, covenants,
obligations, indemnities, representations, warranties and
conditions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and
their respective successors and assigns. Any assignment of the
parties rights hereunder to any third party shall be made
expressly subject to all of the terms, provisions, covenants,
obligations, indemnities, representations, warranties and
conditions of this Agreement and those agreements identified on
Exhibit "A."
j. No Commissions. Each party hereto agrees to defend, indemnify,
save, and hold harmless the other party from and against any and
all claims, demands, causes of action, and damages to third
parties claiming under a party hereto for brokerage, commission,
finders, or other fees relative to this agreement, or the
transactions contemplated hereby, together with any court costs,
attorneys' fees or other costs or expenses arising therefrom.
k. Headings. The subject headings of the articles, sections and
subsections of this Agreement are included solely for purposes
of convenience and reference only, and shall not be deemed to
explain, modify, limit, amplify or aid in the meaning,
construction or interpretation of any of the provisions of this
Agreement.
l. Counterparts. This Agreement may be executed in a number of
counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same Agreement. It shall
not be necessary that the Parties hereto execute an single
counterpart hereof, and this Agreement shall be effective when
each party hereto has executed a counterpart hereof (whether or
not any other party has executed the same counterpart).
EXECUTED on the date first written above and shall be effective as of
February 17, 2002.
TOUCHSTONE RESOURCES USA, INC. EXPRESSION GRAPHICS, INC.
"Touchstone" "EGI"
By:_____________________________ By:_________________________________
▇▇▇▇ ▇. ▇▇▇▇, President
Title:______________________________
**SKH Management, L.P. and SKH Energy Partners II, L.P. join in the
execution of this Agreement for the purpose of acknowledging, ratifying and
confirming the transfer and assignment of all of Touchstone's obligations,
duties, and liabilities under the Contracts to Expression Graphics, Inc. SKH
Management, L.P. and SKH Energy Partners II, L.P. further acknowledge, ratify,
and confirm that the indemnification provisions set forth in paragraph 5 of the
Letter Agreement, inure to the benefit and shall be equally applicable to
Touchstone and EGI. SKH Management, L.P. and SKH Energy Partners II, L.P. hereby
release Touchstone from any and all of its duties, obligations or
responsibilities under each of the Contracts. No representation or warranty by
SKH in the Contracts contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements contained in any
representation or warranty, in light of the circumstances under which it was
made, not misleading. Duly authorized representatives of SKH Management, L.P.
and SKH Energy Partners II, L.P. do hereby execute this Agreement on this the
20th day of February 2002, which shall be effective as of February 17, 2002.
SKH Management, L.P. SKH Energy Partners, II, L.P.
By:_____________________________ By:_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇. President of
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, Inc., SK Exploration, Inc.,
its General Partner. its General Partner.
Exhibit "A"
Attached to and made a part of that certain
Assignment Agreement dated February 19, 2002
by and between Touchstone Resources USA, Inc.
and Expression Graphics, Inc.
Exhibit "B"
Attached to and made a part of that certain
Assignment Agreement dated February 19, 2002
by and between Touchstone Resources USA, Inc.
and Expression Graphics, Inc.
Exhibit "C"
Attached to and made a part of that certain
Assignment Agreement dated February 19, 2002
by and between Touchstone Resources USA, Inc.
and Expression Graphics, Inc.