EXHIBIT 10.123
PAYMENT AGREEMENT
This Payment Agreement (the "Agreement") is executed this 18th day of
October, 1995, by and between Enserch Exploration, Inc., a Texas
corporation ("Seller"), and Reading & Xxxxx Development Co., a Delaware
corporation ("Buyer").
RECITALS
WHEREAS, Seller and Buyer have entered into that Purchase and Sale
Agreement dated the date hereof (the "Purchase Agreement") and have
entered into this Agreement with respect to the deferred payment terms
applicable to payment of Buyer of the Purchase Price set out in Section
2.1 of the Purchase Agreement;
NOW THEREFORE, Seller and Buyer hereby agree as follows:
1. Definitions. Unless otherwise defined in this Agreement,
capitalized terms shall have the meanings ascribed to them in the
Purchase Agreement.
2. Deferred Payment Terms. Buyer shall pay to Seller, Six Million Two
Hundred Fifty Thousand and No/100 Dollars ($6,250,000.00) of the
Purchase Price on the date of this Agreement and shall execute a
promissory note in the principal amount of Twelve Million and No/100
Dollars ($12,000,000.00) as evidence of the unpaid balance of the
Purchase Price which note shall be payable in two installments of Six
Million and No/100 Dollars ($6,000,000.00) each, the first
installment of which shall be due on March 31, 1996 and the second
installment of which shall be due on September 30, 1996 and which
note shall be secured by a mortgage and security agreement and
financing statement granting a mortgage lien and security interest in
the Assets and any additional interests acquired by Buyer pursuant to
the Operating Agreement. Failure of Buyer to conform to and perform
the payment of the Purchase Price, in accordance with the terms and
provisions of this Agreement, shall constitute a breach hereof and
entitle Seller to damages, be grounds for the rescission of the
Purchase Agreement by Seller and/or a suit for specific performance
by Seller. In the event Seller elects to rescind the Purchase
Agreement hereunder, Buyer shall reassign unto Seller, all of the
interests which Buyer acquired from Seller under the terms and
provisions of the Purchase Agreement, free and clear of any and all
burdens and encumbrances, save and except those burdens and
encumbrances affecting the interests and Assets as of the date
hereof. In the event Buyer defaults in the timely payment of any
installment or interest due hereunder, Seller shall have the right
and option to accelerate the due date of any and all outstanding
installments which shall then and thereupon become due and payable.
Buyer does hereby expressly waive any and all rights of notice,
presentment and dishonor which may attach to the obligation created
hereunder.
3. Interest. Interest shall accrue in favor of Seller on the unpaid
balance of the Purchase Price and shall be paid current by Buyer with
each installment. Interest shall be calculated at a rate of 8.56%
per annum.
4. Conflict. In the event of any conflict between the terms of this
Agreement and the terms of the Purchase Agreement, the terms of the
Purchase Agreement shall be deemed to prevail. It is the intent of
the parties hereto that this Agreement cover and pertain only to the
payment of the Purchase Price and is not intended to alter or change
the rights and obligations of the parties created under the terms and
provisions of the Purchase Agreement.
5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF LOUISIANA,
WITHOUT REGARD TO CONFLICT OF LAW RULES OR PROVISIONS THAT DIRECT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
6. Waiver. No waiver of the performance under any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly
provided.
7. Captions. The captions in this Agreement are for convenience only
and shall not be considered part of or affect the construction or
interpretation of any provision of this Agreement.
8. Liability of Successors. The terms, conditions, rights and
obligations of this Agreement shall run with the Assets and extend to
and be binding upon the parties hereto and their respective
successors, legal representatives and/or assigns.
9. Severability. If any provision of this Agreement is invalid or
unenforceable in part or in whole in any jurisdiction applicable to
this Agreement, then, to the extent permitted by applicable law, (i)
the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry
out the intentions of the parties hereto as nearly as may be
possible, and (ii) the invalidity or unenforceability of such
provision in any jurisdiction shall not affect the validity or
enforceability thereof in any other jurisdiction.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
11. Attorney's Fees. If a suit or action is filed by any party to
enforce this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees incurred in investigation or
related matters and in preparation for and prosecution or defense
of such suit or action as fixed by the trial court, together with
reasonable court costs, and, if any appeal is taken from the
decision of the trial court, reasonable attorneys' fees as fixed
by the appellate court or, if appropriate, by the trial court.
12. Change in Control. In the event Seller exercises its right and
option under Section 8.15 of the Purchase Agreement to acquire all
of Buyer's right, title and interest in an to the Assets and any
additional interest which may have been acquired pursuant to the
Operating Agreement described in Section 5.2(e) of the Purchase
Agreement, Seller shall promptly reimburse Buyer for all
installments of the Purchase Price (not including interest) paid
by Buyer prior to the date of such exercise and all other amounts
specified in Section 8.15 of the Purchase Agreement, and Buyer
shall thereafter be relieved of any liability or responsibility to
make future installments or payments hereunder or thereunder.
13. Release of Security. Upon payment in full of the Purchase Price
and any accrued interest hereunder or under the promissory note
referred to in Section 2. of this Agreement, Seller shall cause
the mortgage and security interest referred to in Section 2. to be
released of record and the financing statement, also referred to
in Section 2., to be terminated of record.
IN WITNESS WHEREOF, the parties have entered into and executed this
Agreement as of the day and year first set forth above.
WITNESSES: SELLER:
ENSERCH EXPLORATION, INC.
___________________________________
Name: Xxxxx X. Xxxxxxx, Xx.
By: ___________________________
___________________________________ X. X. Xxxxxxxxx
Name: Senior Vice President,
Offshore and International
WITNESSES: BUYER:
READING & XXXXX DEVELOPMENT CO.
______________________________________
Name:_________________________________
By:____________________________
_______________________________________ X. X. Xxxxxxx
Name:__________________________________ President
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
X. X. XXXXXXXXX, to me personally known to be the person whose name is
subscribed to the foregoing instrument, who declared and acknowledged to
me, notary, in the presence of the undersigned competent witnesses, that
he executed the above and foregoing instrument in his capacity as Senior
Vice President, Offshore and International of Enserch Exploration, Inc., a
Texas corporation, on behalf of said corporation with full authority, and
that the said instrument is the free act and deed of the said corporation,
and was executed for the uses, purposes and benefits therein expressed.
THUS DONE, READ AND SIGNED in the State and County aforesaid, in the
presence of Xxxxx X. Xxxxxxx, Xx. and _____________________________,
competent witnesses, on the 18th day of October, 1995.
WITNESSES:
______________________________ ____________________________________
Xxxxx X. Xxxxxxx, Xx. X. X. XXXXXXXXX
______________________________
_____________________________________
Notary Public in and for the
State of Texas
My Commission expires:
____________________________
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
X. X. XXXXXXX, to me personally known to be the person whose name is
subscribed to the foregoing instrument, who declared and acknowledged to
me, notary, in the presence of the undersigned competent witnesses, that
he executed the above and foregoing instrument in his capacity as
President of Reading & Xxxxx Development Co., a Delaware corporation, on
behalf of the said corporation with full authority, and that the said
instrument is the free act and deed of the said corporation, and was
executed for the uses, purposes and benefits therein expressed.
THUS DONE, READ AND SIGNED in the State and County aforesaid, in the
presence of _________________________________ and
_________________________________, competent witnesses, on the 18th day of
October, 1995.
WITNESSES:
___________________________________ ____________________________________
X. X. XXXXXXX
___________________________________
____________________________________
Notary Public in and for the
State of Texas
My Commission expires:
__________________________________