EXHIBIT 10.183
PURCHASE AND SALE AND ACREAGE EXCHANGE AGREEMENT
GREEN CANYON AREA, OUTER CONTINENTAL SHELF
This PURCHASE AND SALE AND ACREAGE EXCHANGE AGREEMENT (the Agreement")
is executed effective this 28th day of August. 1997. by and between Enserch
Exploration. Inc.. a Texas corporation, as seller ("Seller") and Reading &
Xxxxx Development Co., a Texas corporation. as buyer ("Buyer"). Enserch
Exploration, Inc. is the successor by name change to Lone Star Energy Plant
Operations, Inc. ("LSEPO") and the successor by merger to Enserch
Exploration, Inc. ("EEX"), a subsidiary of ENSERCH Corporation. The
defined term "Seller" shall include Enserch Exploration, Inc., LSEPO and
EEX such that the rights, obligations ant commitments of Seller described
herein shall inure to and bear upon each of Enserch Exploration Inc., LSEPO
and EEX.
RECITALS
WHEREAS. Seller desires to convey and Buyer desires to acquire
certain oil and gas properties and related rights on the terms and
conditions provided in this Agreement.
AND WHEREAS, as consideration for the acquisition of such oil and gas
properties by Buyer, Buyer desires to make both a cash payment and a
conveyance to Seller of certain other oil and gas properties, and Seller
desires to accept such cash payment and conveyance of oil and gal
properties;
NOW. THEREFORE. Seller and Buyer hereby agree as follows:
1. SALE AND PURCHASE
1.1 Sale. Subject to the terms and conditions of this Agreement,
Seller shall sell and Buyer shall purchase and pay for, at the Closing, but
effective as of 12:01 a.m., Central Standard Time. August 28, 1997 (the
"Effective Date"), the undivided rights, titles and interest; reflected in
Exhibit 1.1 hereof, in and to the assets described below located in or
pertaining to the Green Canyon Area on the Outer Continental Shelf off the
coastline of the State of Louisiana (the "Assets"):
(a) The oil, gas and mineral leases. described on Exhibit l.1, Part
(a) (the Leases"), together with a like interest with respect to
the Leases in and to any and all (i) mineral interests, (ii)
overriding or landowners' royalty interests. (iii) surface and
subsurface interests and rights, (iv) beneficial convertible or
reversionary interests, (v) interest owned. claimed or acquired
or to be owned. claimed or acquired. by agreement. (vi)
production payments (vii) contractual interests owned pursuant to
participation agreements operating agreements or similar
agreements. and (viii) any and all like or unlike interests,
including without limitation those specific items identifies on
Exhibit 1.1, Part (a). This shall include any contractual rights
providing for the acquisition or earning of any of the foregoing,
and Seller's rights it respect of any pooled, communitized or
unitized acreage of which any of the foregoing is a part. (All of
the foregoing shall be called collectively the "Leasehold
Interests.")
(b) Any and all xxxxx, wellbores, pipe. gathering lines, compressors,
facilities equipment. platforms, pipelines, templates and any and
all other personal real, movable and immovable property, fixtures
or equipment which are located on or used directly in connection
with the production, treatment or transportation of oil and gas
from the Leasehold Interests, including, without limitation,
those items specifically identified on Exhibit 1.1, Part (b) (the
"Equipment").
(c) Any and all easements, rights-of-way, and subsurface and surface
rights associated or used in connection with any such easements
or rights-of-way which easements. rights-of-way and subsurface
and surface rights have been obtained for use in connection with
the Leasehold Interests (the "Gathering Facilities").
(d) Any and all oil, gas and other minerals produced from or
attributable to the Leasehold Interests on or after the Effective
Date.
(e) To the extent the same are assignable or transferable by Seller
and to the extent and only to the extent that the same relate to
the ownership or operation of the Leasehold Interests the
Gathering Facilities or the Equipment on or after the Effective
Date, all of Seller's right, title and interest in and to all
orders. contracts (including, without limitation, all contracts
and agreements specifically identified on Exhibit 3.7),
agreements (including without limitation all operating
agreements, transportation agreements, unit agreements,
participation agreements and processing agreements) assignments,
files, instruments, licenses, authorizations, permits, audits
claims, liens, suits, settlements and demands, and other rights,
privileges benefits duties and powers conferred upon Seller.
1.2 Title Warranty. Seller warrants that:
(a) Except as specifically set forth in Exhibit 1.1 and/or Exhibit
3.7 or resulting from the application of the agreements listed
therein. neither Seller nor any parent, subsidiary or affiliate
of Seller during their respective periods of ownership has (A)
executed any deed. conveyance, assignment or other instrument as
an assignor, grantor. sublessor or in another capacity or (B) has
breached any obligation under any Asset that would (i) result in
Buyer's being entitled to receive less than the net revenue
interest for any Lease, well or unit set forth in Exhibit 1.1,
except as otherwise noted on Exhibit 1.1. of all oil and gas in,
under, and that may be produced. saved and marketed from or
attributable to such Lease, well or unit, or (ii) obligate Buyer
to bear the costs and expenses relating to the maintenance.
development and operator of such Lease. well or unit in an amount
greater than the working interest for such Lease. well or unit
set forth in Exhibit 1.1, unless the net revenue interest
attributable to said working interest is increased by a
proportionate or or greater amount; and
(b) Except as specifically set forth in Exhibit 1.1 and/or Exhibit
3.7 or resulting from the application of the agreements listed
therein, the Assets are free of all liens, mortgages, charges,
pledges, security interests and encumbrances, including, but not
limited to such as may arise under any contracts or judgments,
created by, through or under Seller as of the Closing Date;
(the limited warranty set forth in subparagraphs (a) and (b) above shall
hereinafter be referred to as the Special Limited Warranty") Seller shall
convey the Assets with no warranty whatsoever other than the Special
Limited Warranty, but with full substitution and subrogation to Buyer in
and to al covenants, agreements, representations and warranties made by
others heretofore given or made it connection with the Assets or any part
thereof.
1.3 Other Warranty Provisions. Except as set forth herein, Buyer
acknowledges that (a) Seller has not made any warranty or
representation, whether express, implied, at common law, by
statute or otherwise. relating to the fitness for an intended
purpose or condition of any movable property constituting a
portion of the Assets and (b) Buyer shall acquire such personal
property in AS IS, WHERE IS" condition Except as may be
specifically set forth to the contrary in this Agreement, Buyer
acknowledges that Seller has made no representations or
warranties whatever, expressed or implied, (Seller having hereby
expressly disclaimed all such warranties) as to the accuracy,
completeness, or materiality of any data, information, record or
materials now, heretofore, or hereafter made available in
connection with this Agreement (including, without limitation,
any descriptions of oil and gas leases; quality or quantity of
hydrocarbon reserves attributable to the Assets, if any;
production rates. exploratory or development drilling
opportunities, decline rates, potential for production of
hydrocarbons from the Assets; the environmental condition of said
Assets; the legal. tax or other consequences of owning Seller's
interest in the Assets; or any other information contained in any
material furnished in connection with this transaction) Any and
all such data, information, records or materials furnished by
Seller to Buyer are provided as convenience only and any reliance
on or use of same is at the Buyer's sole risk. EXCEPT AS SET
FORTH HEREIN, WITHOUT LIMITING THE GENERALITY OF THIS PARAGRAPH
SELLER DISCLAIMS AND NEGATES AS TO ANY PERSONAL PROPERTY,
FIXTURES IMPROVEMENTS AND APPURTENANCES SUBJECT TO THIS AGREEMENT
(INCLUDING ALL XXXXX): (A) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, AND (C) ANY IMPLIED OR EXPRESS WARRANTY
OF CONFORMITY TO MODELS OR SAMPLE OR MATERIALS. THE PURCHASER
EXPRESSLY AGREES THAT TITLE TO SUCH PERSONAL PROPERTY, FIXTURES,
IMPROVEMENTS AND APPURTENANCES WILL BE ACCEPTED "AS IS", "WHERE
IS", "WITH ALL FAULTS", AND IN ITS PRESENT CONDITION AND STATE OF
RFPAIR.
1.4 Exclusion of the Vessel Allegheny/nee Polymariner.
Notwithstanding anything to the contrary herein contained, this Purchase
and Sale Agreement shall not cover or pertain whatsoever to the vessel
Allegheny/nee Polymariner which is currently co-owned by Seller with others
and we; purchased for use in connection with the Assets.
2. PURCHASE PRICE AND OTHER CONSIDERATION.
2.1 Determination of Purchase Price. The cash portion of the purchase
price for the Assets (the "Purchase Price ") shall be Eight Million and
No/100 Dollars ($8,000,000.00) (the "Purchase Price");
2.2 Payment of Purchase Price. The payment of the Purchase Price
shall be made by Buyer to Seller in immediately available funds via wire
transfer at Closing.
2.3 Additional Consideration. In addition to the Purchase Price,
Buyer shall convey to the Seller at the Closing, but effective as of the
Effective Date. the undivided rights, titles and interests reflected in
Exhibit 1.2 hereof in and to the assets described in this Section 2.3
located in or pertaining to the Green Canyon Area on the Outer Continental
Shelf off the coastline of the State of Louisiana (the "Buyer's Assets"):
(a) The oil, gas and mineral leases, described on Exhibit 1.2. Part
(a) (the "Buyer's Leases"), together with a like interest with
respect to the Buyer's Leases in and to any and all (i) mineral
interests. (ii) overriding or landowners' royalty interests,
(iii) surface and subsurface interests and rights, (iv)
beneficial, convertible or reversionary interests, (v) interest
owned. claimed or acquired. or to be owned, claimed or acquired.
by agreement, (vi) production payments, (vii) contractual
interests overfed pursuant to participation agreements, operating
agreements or similar agreements, and (viii) any and all like or
unlike interests. including without limitation those specific
items identified on Exhibit 1.2. Part (a). This shall include any
contractual rights providing for the acquisition or earning of
any of the foregoing, and Buyer's rights in respect of any pooled
communitized or unitized acreage of which any of the foregoing is
part. (All of the foregoing shall be called collectively the
Buyers Leasehold Interests.")
(b) [INTENTIONALLY OMITTED]
(c) Any and all easements, rights-of-way, and subsurface and surface
rights associated or used in connection with any such easements
of rights-of-way, which easements, rights-of-way and subsurface
and surface rights have been obtained for use in connection with
the Buyer's Leasehold Interests.
(d) Any and all oil, gas and other minerals produced from or
attributable to the Buyer's Leasehold Interests on or after the
Effective Date.
(e) To the extent the same are assignable or transferable by Buyer
and to the extent and only to the extent that the same relate to
the ownership or operation of the Buyer's Leasehold Interests. on
or after the Effective Date. all of Buyer's right, title and
interest in and to all orders, contracts (including, without
limitation. all contracts and agreements specifically identified
on Exhibit 3.7), agreements (including without limitation all
operating agreements. transportation agreements, unit agreements,
participation agreements and processing agreements), assignments,
files, instruments, licenses. authorizations permits, audits,
claims. liens, suits, settlements and demands, and other rights,
privileges, benefits, duties and powers conferred upon Buyer.
2.3 Title Warrant. Buyer warrants that:
(a) Except as specifically set forth in Exhibit 1.2 and/or Exhibit
3.7 or resulting from the application of the agreements listed
therein, neither Buyer nor any parent, subsidiary or affiliate of
Buyer during their respective periods of ownership has (A)
executed any deed, conveyance, assignment or other instrument as
an assignor, grantor. sublessor or in another capacity or (B) has
breached any obligation under any Buyer's Asset that would (i)
result in Seller's being entitled to receive less than the net
revenue interest for any Buyer's Lease, well or unit set forth in
Exhibit 1.2. except as otherwise noted on Exhibit 1.2, of all oil
and gas in, under, and that may be produced, saved and marketed
from or attributable to such Buyer's Lease, well or unit, or (ii)
obligate Seller to bear the costs and expenses relating to the
maintenance, development and operation of such Buyer's Lease,
well or unit in an amount greater than the working interest for
such Buyer's Lease, well or unit set forth in Exhibit 1.2, unless
the net revenue interest attributable to said working interest is
increased by a proportionate or greater amount; and
(b) Except as specifically set forth in Exhibit 1.2 and/or Exhibit
3.7 or resulting from the application of the agreements listed
therein, the Buyer's Assets are free of all liens, mortgages,
charges, pledges, security interests and encumbrances, including,
but not limited to such as may arise under any contracts or
judgements, created by, through or under Buyer as of the Closing
Date;
(the limited warranty set forth in subparagraphs (a) and (b) above shall
hereinafter be referred to as the Buyer's Special Limited Warranty"). Buyer
shall convey the Buyer's Assets with no warranty whatsoever other than the
Buyer's Special Limited Warranty, but with full substitution and
subrogation to Seller in and to all covenants, agreements, representations
and warranties made by others heretofore given or made in connection with
the Buyer's Assets or any part thereof.
2.4 Other Warranty Provisions. Except as set forth herein, Seller
acknowledges that (a) Buyer has not made any warranty or representation,
whether express, implied, at common law, by statute or otherwise, relating
to the fitness for an intended purpose or condition of any movable property
constituting a portion of the Buyer's Assets and (b) Seller shall acquire
such personal property in "AS IS, WHERE IS" condition. Except as may be
specifically set forth to the contrary in this Agreement, Seller
acknowledges that Buyer has made no representations or warranties whatever,
expressed or implied, (Buyer having hereby expressly disclaimed all such
warranties) as to the accuracy, completeness, or materiality of any data,
information, record or materials now, heretofore, or hereafter made
available in connection with this Agreement (including, without limitation,
any descriptions of oil and gas leases; quality or quantity of hydrocarbon
reserves attributable to the Buyer's Assets, if any; production rates,
exploratory or development drilling opportunities, decline rates, potential
for production of hydrocarbons from the Buyer's Assets; the environmental
condition of said Buyer's Assets; the legal, tax or other consequences of
owning Buyer's interest in the Buyer's Assets; or any other information
contained in any material furnished in connection with this transaction).
Any and all such data, information, records or materials furnished by Buyer
to Seller is provided as a convenience only and any reliance on or use of
same is at the Seller's sole risk. EXCEPT AS SET FORTH HEREIN, WITHOUT
LIMITING THE GENERALITY OF THIS PARAGRAPH, BUYER DISCLAIMS AND NEGATES AS
TO ANY PERSONAL PROPERTY, FIXTURES, IMPROVEMENTS AND APPURTENANCES SUBJECT
TO THIS AGREEMENT (INCLUDING ALL XXXXX): (A) ANY IMPLIED OR EXPRESS
WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, AND (C) ANY IMPLIED OR EXPRESS WARRANTY OF
CONFORMITY TO MODELS OR SAMPLE OR MATERIALS. THE PURCHASER EXPRESSLY
AGREES THAT TITLE TO SUCH PERSONAL PROPERTY, FIXTURES, IMPROVEMENTS AND
APPURTENANCES WILL BE ACCEPTED "AS IS", "WHERE IS", "WITH ALL FAULTS", AND
IN ITS PRESENT CONDITION AND STATE OF REPAIR.
3. REPRESENTATIONS OF SELLER.
As a principal cause and material inducement to Buyer's execution of
this Agreement and to Buyer's consummation of the transactions contemplated
hereby, and with the acknowledgment by Seller of Buyer's reliance hereon,
Seller, to the extent set forth below and with respect to the undivided
interests in the Assets covered hereby, represents to Buyer that as of the
date hereof:
3.1 Existence of Seller. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas
and is duly qualified or is in the process of becoming qualified with the
MMS, as hereinafter defined, to carry on its business on the Outer
Continental Shelf, Gulf of Mexico, federal waters.
3.2 Power of Seller. Seller has the requisite corporate power to
enter into and perform this Agreement and the transactions contemplated
hereby. Subject to rights to consent by, required notices to, and filings
with or other actions by governmental entities where the same are
customarily obtained subsequent to the assignment of oil and gas interests
and leases, the execution, delivery and performance of this Agreement by
Seller, and the transactions contemplated hereby, will not violate (i) any
provision of the articles of incorporation or bylaws of Seller, (ii) any
material agreement or instrument to which Seller is a party or by which
Seller is or the Assets owned by Seller are bound, (iii) any judgment,
order, ruling, or decree applicable to the Assets or to Seller as a party
in interest, or (iv) any law, rule or regulation applicable to Seller or to
the ownership or operation of the Assets.
3.3 Authorization of Seller. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby have been duly
and validly authorized by all requisite corporate action on the part of
Seller. This Agreement has been duly executed and delivered on behalf of
Seller, and at the Closing all documents and instruments required hereunder
to be executed and delivered by Seller shall have been duly executed and
delivered. This Agreement does, and such documents and instruments shall,
constitute legal, valid and binding obligations of Seller enforceable in
accordance with their terms; subject, however, to the effect of bankruptcy,
insolvency, reorganization, moratorium and similar laws from time to time
in effect relating to the rights and remedies of creditors, as well as to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.4 Brokers. Seller has incurred no obligation or liability,
contingent or otherwise, for brokers' or finders' fees in respect of the
matters provided for in this Agreement and any such obligation or liability
that might exist and which was incurred by Seller, shall be the sole
obligation or liability of Seller.
3.5 Foreign Person. Seller is not a "foreign person" within the
meaning of the Sections 1445 and 7701 of Internal Revenue Code of 1986, as
amended (the "Code") (i.e. Seller is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate as those
terms are defined in the Code and any regulations promulgated thereunder).
3.6 Litigation. There are no claims, demands, disputes, actions,
suits or proceedings pending, or to the knowledge of Seller threatened;
against or affecting the Assets or any portion or portions thereof, or the
operations of Seller relating to the Assets or any portion or portions
thereof, and to the best of Seller's knowledge after reasonable inquiry,
except as set forth in Exhibit 3.9, no violation of any laws, statutes,
regulations or orders applicable to any Asset or the operation thereof
exists.
3.7 Contracts. Agreements, Commitments and Other Matters. Except as
set forth on Exhibit 3.7, to the best of Seller's knowledge, information
and belief after reasonable inquiry, there are no contracts, agreements,
understandings, commitments, or other obligations (other than the oil, gas
and mineral leases, surface leases, rights-of-way and other interests
described in Exhibit 1.1 hereto and conveyance documents that are a matter
of public record in the Louisiana coastal parishes of Jefferson, LaFourche
and/or Terrebonne or that are filed in the "Non-Required" filings or the
"Lease File" maintained for the Leases in the New Orleans District of the
Minerals Management Service (the "MMS") with respect to the Leases)
affecting the Assets which are in effect as of the date hereof. Neither
Seller nor any parent, subsidiary or affiliate of Seller has breached any
provision of the Leases or the agreements set forth in Exhibit 3.7 and to
the best of Seller's knowledge, information and belief after reasonable
inquiry, neither has any other party thereto.
3.8 Consents and Preferential Purchase Rights. There are no consents
(except governmental consents which are customarily obtained after the
assignment of an offshore federal oil and gas lease), agreements or waivers
of preferential rights necessary to the valid assignment of the Assets to
Buyer at Closing that have not been affirmatively waived or deemed to have
been waived by expiration of the appropriate notice period, and there are
no preferential purchase rights or calls on production with respect to the
production from the Leasehold Interests, except as may be provided in the
agreements listed in Exhibit 3.7, which limit the purchase price for oil or
gas, of which are not subject to termination upon 60 days' notice.
3.9 Environmental Matters. Except as specifically set forth on
Exhibit 3.9, to the best of Seller's knowledge, information and belief
after reasonable inquiry, there exists no Environmental Defect with respect
to the Assets or any lands pooled therewith. An Environmental Defect means
a condition or circumstance that exists in connection with the Leasehold
Interests or the other Assets that is not in material compliance with any
law, regulation, order or judgment of or agreement with any federal, state
or local agency or court relating to the environment or that under such
law, regulation, order, judgment or agreement requires the owner or
operator of such leases or assets to undertake any cleanup, remediation or
other expense (an "Environmental Defect").
3.10 Open Xxxxx. To the best of Seller's knowledge, information and
belief after reasonable inquiry, except for xxxxx identified in Exhibit
1.1, Part (b), there exists no well that it located on any of the Leasehold
Interests or lands pooled therewith and that is not plugged and abandoned
in accordance with applicable rules, regulations and contractual
obligations.
3.11 Casualty Losses. To the best of Seller's knowledge,
information and belief after reasonable inquiry, there has
occurred no casualty to any Asset since the Effective Date that materially
and adversely affects the value, use or operation of such Asset.
3.12 Information. No documents were intentionally removed or
information or documents omitted from the data or documentation
furnished by Seller to Buyer that is necessary to make the data furnished
not misleading in any material respect; provided, however, this
representation is limited solely to matters of fact and specifically
excludes any statement or forecast of existing or future reserves, geologic
and engineering interpretations, forecasts. estimates and economic
assumptions, including without limitation (i) future prices of production,
(ii) future operating costs, (iii) future capital expenditures, (iv)
projections and estimates of future reserves and production and (v) the
prospects for successfully completing xxxxx.
3.13 Compliance with Laws. Except as specifically set forth on
Exhibit 3.9 and/or as to operations conducted by parties other
than Seller, to the best of Seller's knowledge, information and belief
after reasonable inquiry, Seller has operated the Assets, or caused the
Assets to be operated, in compliance with all laws, ordinances, regulations
and orders applicable to the Assets and the operations undertaken in
connection therewith.
3.14 Condition of the Equipment and Gathering Facilities. To
the best of Seller's knowledge, information and belief, after reasonable
inquiry, the Equipment and Gathering Facilities have been maintained in
accordance with prudent oil field practices.
3.15 MMS Approval. Seller is not aware of the existence of any fact
or condition with respect to Seller or the Assets that may cause the MMS to
withhold unconditional approval, to the extent MMS approval is required
under applicable law, of the transfer of the Assets from Seller to Buyer.
4. REPRESENTATIONS OF BUYER.
As a principal cause and material inducement to Seller's execution of
this Agreement and to Seller's consummation of the transactions
contemplated hereby, and with the acknowledgment by Buyer of Seller's
reliance hereon, Buyer, to the extent set forth below and with respect to
the undivided interests in the Buyer's Assets covered hereby, represents to
Seller that as of the date hererof:
4.1 Existence of Buyer. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas
and is duly qualified with the MMS, as hereinafter defined, to carry on its
business on the Outer Continental Shelf, Gulf of Mexico, federal waters.
4.2 Power of Buyer. Buyer has the requisite corporate power to enter
into and perform this Agreement and the transactions contemplated hereby.
Subject to rights to consent by, required notices to, and filings with or
other actions by governmental entities where the same are customarily
obtained subsequent to the assignment of oil and gas interests and leases,
the execution, delivery and performance of this Agreement by Buyer, and the
transactions contemplated hereby, will not violate (i) any provision of the
articles of incorporation or bylaws of Buyer, (ii) any material agreement
or instrument to which Buyer is a party or by which Buyer is or the Buyer's
Assets owned by Buyer are bound, (iii) any judgment, order, ruling, or
decree applicable to the Buyer's Assets or to Buyer as a party in interest,
or (iv) any law, rule or regulation applicable to Buyer or to the ownership
or operation of the Buyer's Assets.
4.3 Authorization of Buyer. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby have been duly
and validly authorized by all requisite corporate action on the part of
Buyer. This Agreement has been duly executed and delivered on behalf of
Buyer, and at the Closing all documents and instruments required hereunder
to be executed and delivered by Buyer shall have been duly executed and
delivered. This Agreement does, and such documents and instruments shall,
constitute legal, valid and binding obligations of Buyer enforceable in
accordance with their terms, subject, however, to the effect of bankruptcy,
insolvency, reorganization, moratorium and similar laws from time to time
in effect relating to the rights and remedies of creditors, as well as to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4.4 Brokers. Buyer has incurred no obligation or liability.
contingent or otherwise, for brokers' or finders' fees in respect of the
matters provided for in this Agreement and any such obligation or liability
that might exist and which was incurred by Buyer, shall be the sole
obligation or liability of Buyer.
4.5 Foreign Person. Buyer is not a "foreign person" within the
meaning of the Sections 1445 and 7701 of Internal Revenue Code of 1986, as
amended (the "Code") (i.e. Buyer is not a nonresident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate as those
terms are defined in the Code and any regulations promulgated thereunder).
4.6 Litigation. There are no claims, demands, disputes, actions,
suits or proceedings pending, or to the knowledge of Buyer threatened,
against or affecting the Buyer's Assets or any portion or portions thereof,
or the operations of Buyer relating to the Buyer's Assets or any portion or
portions thereof, and to the best of Buyer's knowledge after reasonable
inquiry, except as set forth in Exhibit 3 9, no violation of any laws,
statutes, regulations or orders applicable to any Buyer's Asset or the
operation thereof exists.
4.7 Contracts, Agreements, Commitments and Other Matters. Except as
set forth or Exhibit 3 7, to the best of Buyer's knowledge, information and
belief after reasonable inquiry, there are no contracts, agreements,
understandings, commitments, or other obligations (other than the oil, gas
and mineral leases, surface leases. rights-of-way and other interests
described in Exhibit 1.2 hereto and conveyance documents that are a matter
of public record in the Louisiana coastal parishes of Jefferson, LaFourche
and/or Terrebonne or that are filed in the "Non-Required" filings or the
"Lease File" maintained for the Leases in the New Orleans District of the
Minerals Management Service (the "MMS") with respect to the Leases)
affecting the Buyer's Assets which are in effect as of the date hereof.
Neither Buyer nor any parent, subsidiary or affiliate of Buyer has breached
any provision of the Buyer's Leases or the agreements set forth in Exhibit
3.7 and to the best of Buyer's knowledge, information and belief after
reasonable inquiry, neither has any other party thereto.
4.8 Consents and Preferential Purchase Rights. There are no consents
(except governmental consents which are customarily obtained after the
assignment of an offshore federal oil and gas lease), agreements or waivers
of preferential rights necessary to the valid assignment of the Buyer's
Assets to Seller at Closing that have not been affirmatively waived or
deemed to have been waived by expiration of the appropriate notice period,
and there are no preferential purchase rights or calls on production with
respect to the production from the Buyer's Leasehold Interests, except as
may be provided in the agreements listed in Exhibit 3.7, which limit the
purchase price for oil or gas, or which are not subject to termination upon
60 days' notice
4.9 Environmental Matters. Except as specifically set forth on
Exhibit 3.9, to the best of Buyer's knowledge, information and belief after
reasonable inquiry, there exists no Environmental Defect with respect to
the Buyer's Assets or any lands pooled therewith. An Environmental Defect
means a condition or circumstance that exists in connection with the
Buyer's Leasehold Interests or the other Buyer's Assets that is not in
material compliance with any law, regulation, order or judgment of or
agreement with any federal, state or local agency or court relating to the
environment or that under such law, regulation, order, judgment or
agreement requires the owner or operator of such leases or assets to
undertake any cleanup, remediation or other expense (an "Environmental
Defect").
4.10 Open Xxxxx. To the best of Buyer's knowledge, information and
belief after reasonable inquiry, except for xxxxx identified in Exhibit
1.1, Part (b), there exists no well that is located on any of the Buyer's
Leasehold Interests or lands pooled therewith and that is not plugged and
abandoned in accordance with applicable rules, regulations and contractual
obligations.
4.11 Casualty Losses. To the best of Buyer's knowledge,
information and belief after reasonable inquiry, there has occurred
no casualty to any Buyer's Asset since the Effective Date that
materially and adversely affects the value, use or operation of such
Buyer's Asset.
4.12 Information. No documents were intentionally removed
or information or documents omitted from the data or documentation
furnished by Buyer to Seller that is necessary to make the data furnished
not misleading in any material respect; provided, however, this
representation is limited solely to matters of fact and specifically
excludes any statement or forecast of existing or future reserves, geologic
and engineering interpretations, forecasts, estimates and economic
assumptions, including without limitation (i) future prices of production,
(ii) future operating costs, (iii) future capital expenditures, (iv)
projections and estimates of future reserves and production and (v) the
prospects for successfully completing xxxxx.
4.13 Compliance with Laws. Except as specifically set forth on
Exhibit 3.9 and/or as to operations conducted by parties other than Buyer,
to the best of Buyer's knowledge, information and belief after reasonable
inquiry, Buyer has operated the Buyer's Assets, or caused the
Buyer's Assets to be operated, in compliance with all laws, ordinances,
regulations and orders applicable to the Buyer's Assets and the operations
undertaken in connection therewith.
4.14 [INTENTIONALLY OMITTED]
4.15 MMS Approval. Buyer is not aware of the existence of any
fact or condition with respect to Buyer or the Buyer's Assets that may
cause the MMS to withhold unconditional approval, to the extent MMS
approval is required under applicable law, of the transfer of the Buyer's
Assets from Buyer to Seller.
5. CLOSING.
5.1 Time and Place of Closing. The consummation of the transactions
contemplated hereby (the "Closing") is to be held at a mutually agreed
location in Houston, Texas on or before August 28, 1997 or within five (5)
business days after the receipt of any required governmental approvals or
within five (5) business days after the time for any governmental objection
has expired (namely Xxxx-Xxxxx-Xxxxxx approval), whichever of the three
dates is the later date, unless extender by the mutual consent of the
parties hereto. (The date on which the Closing occurs shall be referrer to
as the "Closing Date.")
5.2 Closing Obligations. At the Closing:
(a.) (i.) Seller shall execute, acknowledge and deliver to Buyer the
appropriate conveyance instruments in the form of Exhibit 5.2
which will convey title to the Assets to Buyer and deliver
possession thereof to Buyer together with all requisite forms
required to accompany such assignments for filing with the MMS.
(ii.) Buyer shall execute, acknowledge and deliver to Seller the
appropriate conveyance instruments in the form of Exhibit 5.2
which will convey title to the Buyer's Assets to Seller and
deliver possession thereof to Seller together with all requisite
forms required to accompany such assignments for filing with the
MMS.
(b.) (i.) Seller shall execute such other instruments and take
such other action as may be necessary to carry out its
obligations under this Agreement.
(ii.) Buyer shall execute such other instruments and take such
other action as may be necessary to carry out its obligations
under this Agreement.
(c.) (i.) Seller shall execute and deliver to Buyer designations of
operator naming British-Borneo Exploration, Inc. as operator of
the Assets and any and all units containing or pertaining to the
Assets.
(ii.) Buyer shall execute and deliver to Seller designations of
operator naming Enserch Exploration, Inc. as operator of the
Buyer's Assets and any and all units containing or pertaining to
the Buyer's Assets.
(d.) Buyer and Seller shall execute such other instruments and take
such other action as may be necessary to carry out its
obligations under this Agreement.
(e.) Buyer shall pay in cash to Seller. the sum of Eight Million and
No/l00 Dollars ($8,000,000.00).
6. POST-CLOSING OBLIGATIONS.
6.1. Assumption of Obligations and Grant of Indemnities Relating to
Operations.
(a) SUBJECT TO EACH OF THE FOLLOWING EXCEPTIONS:
(X) EXCEPT AS TO THOSE MATTERS DESCRIBED IN SECTION 6.1(b) AND TO THE
LIMITED EXTENT THAT SELLER HAS AGREED TO INDEMNIFY BUYER AS
PROVIDED IN SUCH SECTION 6.1(b) AND
(Y) EXCEPT TO THE EXTENT ANY OF THE FOLLOWING IS ATTRIBUTABLE TO THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER AT ANY TIME
BETWEEN THE EFFECTIVE DATE AND THE CLOSING DATE;
TO THE EXTENT OF ITS INTEREST IN THE ASSETS HEREBY CONVEYED BY SELLER
TO BUYER, BUYER HEREBY ASSUMES ALL OF THE FOLLOWING DESCRIBED
OBLIGATIONS AND BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS SELLER, ITS OFFICERS, DIRECTORS SHAREHOLDERS, EMPLOYEES,
AGENTS AND REPRESENTATIVES (THE "SELLER GROUP"), REGARDLESS OF
WHETHER SELLER GROUP WAS WHOLLY OR PARTIALLY NEGLIGENT OR
OTHERWISE AT FAULT, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, COURT COSTS AND REASONABLE ATTORNEYS' FEES) ARISING
FROM:
(I) EVENTS THAT TRANSPIRE OR CONDITIONS THAT COME INTO EXISTENCE
AFTER THE EFFECTIVE DATE THAT ARE ATTRIBUTABLE TO THE OWNERSHIP
OR OPERATION OF THE ASSETS ON OR AFTER THE EFFECTIVE DATE;
(II) THE PROPER PLUGGING AND ABANDONMENT OF ALL XXXXX NOW OR
HEREAFTER LOCATED ON THE LEASEHOLD INTERESTS;
(III) THE ABANDONMENT OF THE GATHERING FACILITIES;
(IV) ALL LIABILITY FOR PROPERTY DAMAGE OR INJURY TO OR DEATH OF
PERSONS OCCURRING AFTER THE EFFECTIVE DATE AND ARISING OUT OF THE
OWNERSHIP OR OPERATION OF THE ASSETS; AND/OR
(V) ANY BREACH OR VIOLATION OF THIS AGREEMENT, INCLUDING A BREACH OF
ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED HEREIN FROM
BUYER TO SELLER.
ADDITIONALLY, SUBJECT TO EXCEPTIONS (X) AND (Y) ABOVE, BUYER HEREBY
ASSUMES, TO THE EXTENT OF ITS INTERESTS IN THE ASSETS CONVEYED BY
SELLER TO BUYER HEREUNDER AND TO THE EXTENT THE SAME ARE
ASSIGNABLE OR TRANSFERABLE BY SELLER (AND ARE SO ASSIGNED OR
TRANSFERRED) AND TO THE EXTENT AND ONLY TO THE EXTENT THAT THE
SAME RELATE TO THE OWNERSHIP OR OPERATION OF THE LEASEHOLD
INTERESTS, THE GATHERING FACILITIES OR THE EQUIPMENT ON OR AFTER
THE EFFECTIVE DATE, ANY AND ALL DUTIES AND OBLIGATIONS ARISING
FROM ANY AND ALL ORDERS, CONTRACTS, AGREEMENTS, (INCLUDING
WITHOUT LIMITATION ALL OPERATING AGREEMENTS, TRANSPORTATION
AGREEMENTS, UNIT AGREEMENTS, PARTICIPATION AGREEMENTS AND
PROCESSING AGREEMENTS), INSTRUMENTS, LICENSES, AUTHORIZATIONS,
PERMITS, AUDITS, CLAIMS, LIENS, SUITS, SETTLEMENTS AND DEMANDS,
AND OTHER RIGHTS, PRIVILEGES, BENEFITS AND POWERS CONFERRED UPON
SELLER, INCLUDING, BUT NOT LIMITED TO THOSE LISTED ON EXHIBIT 3.7
(COLLECTIVELY HEREINAFTER REFERRED TO IN THIS PARAGRAPH AS
"AGREEMENTS"). BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS SELLER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, AGENTS AND REPRESENTATIVES (THE "SELLER GROUP"),
REGARDLESS OF WHETHER SELLER GROUP WAS WHOLLY OR PARTIALLY
NEGLIGENT OR OTHERWISE AT FAULT, FROM AND AGAINST ANY AND ALL
CLAIMS, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, COURT COSTS AND REASONABLE ATTORNEYS' FEES)
ARISING FROM BUYER'S BREACH OR NON-PERFORMANCE OF SUCH
AGREEMENTS.
(b) SELLER AGREES TO RETAIN LIABILITY FOR ALL OF THE FOLLOWING
DESCRIBED OBLIGATIONS AND SELLER AGREES TO INDEMNIFY, DEFEND AND
HOLD HARMLESS BUYER, ITS PARENT AND THEIR RESPECTIVE
SUBSIDIARIES, PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, INSURERS, AGENTS AND REPRESENTATIVE AND ITS SUCCESSORS
AND ASSIGNS ("BUYER GROUP"), REGARDLESS OF WHETHER BUYER GROUP
WAS WHOLLY OR PARTIALLY NEGLIGENT OR OTHERWISE AT FAULT, FROM AND
AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, COSTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND
REASONABLE ATTORNEYS' FEES) ARISING FROM:
(I) EVENTS THAT TRANSPIRED OR CONDITIONS THAT CAME INTO EXISTENCE
PRIOR TO THE EFFECTIVE DATE THAT ARE ATTRIBUTABLE TO THE
OWNERSHIP OR OPERATION OF THE ASSETS:
(II) ALL LIABILITY FOR PROPERTY DAMAGE OR INJURY TO OR DEATH OF
PERSONS OCCURRING PRIOR TO THE EFFECTIVE DATE AND ARISING OUT OF
THE OWNERSHIP OR OPERATION OF THE ASSETS REGARDLESS OF WHETHER
CLAIMS RELATED TO SAID DAMAGE, INJURY OR DEATH ARE ASSERTED ON,
BEFORE OR AFTER THE EFFECTIVE DATE; AND/OR
(III) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER WITH
REGARD TO THE ASSETS AT ANY TIME BETWEEN THE EFFECTIVE DATE AND
THE CLOSING DATE.
(IV) ANY BREACH OR VIOLATION OF THIS AGREEMENT, INCLUDING A BREACH
OF ANY REPRESENTATION, WARRANTY OR COVENENT CONTAINED HEREIN FROM
SELLER TO BUYER.
(c) SUBJECT TO EACH OF THE FOLLOWING EXCEPTIONS:
(X) EXCEPT AS TO THOSE MATTERS DESCRIBED IN SECTION 6.1(c) AND TO THE
LIMITED EXTENT THAT BUYER HAS AGREED TO INDEMNIFY SELLER AS
PROVIDED 1N SUCH SECTION 6.1(c) AND
(Y) EXCEPT TO THE EXTENT ANY OF THE FOLLOWING IS ATTRIBUTABLE TO THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BUYER AT ANY TIME
BETWEEN THE EFFECTIVE DATE AND THE CLOSING DATE;
TO THE EXTENT OF ITS INTEREST IN THE BUYER'S ASSETS HEREBY CONVEYED BY
BUYER TO SELLER, SELLER HEREBY ASSUMES ALL OF THE FOLLOWING
DESCRIBED OBLIGATIONS AND SELLER AGREES TO INDEMNIFY, DEFEND AND
HOLD HARMLESS BUYER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, AGENTS AND REPRESENTATIVES (THE "BUYER GROUP"),
REGARDLESS OF WHETHER BUYER GROUP WAS WHOLLY OR PARTIALLY
NEGLIGENT OR OTHERWISE AT FAULT, FROM AND AGAINST ANY AND ALL
CLAIMS, LIABILITIES, LOSSES, COSTS AN EXPENSES (INCLUDING,
WITHOUT LIMITATION, COURT COSTS AND REASONABLE ATTORNEYS' FEES)
ARISING FROM:
(I) EVENTS THAT TRANSPIRE OR CONDITIONS THAT COME INTO EXISTENCE
AFTER THE EFFECTIVE DATE THAT ARE ATTRIBUTABLE TO THE OWNERSHIP
OR OPERATION OF THE BUYER'S ASSETS ON OR AFTER THE EFFECTIVE
DATE;
(II) THE PROPER PLUGGING AND ABANDONMENT OF ALL XXXXX NOW OR HEREAFTER
LOCATED ON THE BUYER'S LEASEHOLD INTERESTS;
(III) THE ABANDONMENT OF THE GATHERING FACILITIES;
(IV) ALL LIABILITY FOR PROPERTY DAMAGE OR INJURY TO OR DEATH OF
PERSONS OCCURRING AFTER THE EFFECTIVE DATE AND ARISING OUT OF THE
OWNERSHIP OR OPERATION OF THE BUYER'S ASSETS AND/OR
(V) ANY BREACH OR VIOLATION OF THIS AGREEMENT, INCLUDING A BREACH OF
ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED HEREIN FROM
SELLER TO BUYER.
ADDITIONALLY, SUBJECT TO EXCEPTIONS (X) AND (Y) ABOVE, SELLER HEREBY
ASSUMES, TO THE EXTENT OF ITS INTERESTS IN THE BUYER'S ASSETS
CONVEYED BY BUYER TO SELLER HEREUNDER AND TO THE EXTENT THE SAME
ARE ASSIGNABLE OR TRANSFERABLE BY BUYER (AND ARE SO ASSIGNED OR
TRANSFERRED) AND TO THE EXTENT AND ONLY TO THE EXTENT THAT THE
SAME RELATE TO THE OWNERSHIP OR OPERATION OF THE BUYER'S
LEASEHOLD INTERESTS, THE GATHERING FACILITIES OR THE EQUIPMENT ON
OR AFTER THE EFFECTIVE DATE, ANY AND ALL DUTIES AND OBLIGATIONS
ARISING FROM ANY AND ALL ORDERS, CONTRACTS, AGREEMENTS (INCLUDING
WITHOUT LIMITATION ALL OPERATING AGREEMENTS, TRANSPORTATION
AGREEMENTS, UNIT AGREEMENTS, PARTICIPATION AGREEMENTS AND
PROCESSING AGREEMENTS), INSTRUMENTS, LICENSES, AUTHORIZATIONS,
PERMITS, AUDITS, CLAIMS, LIENS, SUITS, SETTLEMENTS AND DEMANDS,
AND OTHER RIGHTS, PRIVILEGES, BENEFITS AND POWERS CONFERRED UPON
BUYER, INCLUDING, BUT NOT LIMITED TO THOSE LISTED ON EXHIBIT 3.7
(COLLECTIVELY HEREINAFTER REFERRED TO IN THIS PARAGRAPH AS
"AGREEMENTS"). SELLER AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS BUYER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES,
AGENTS AND REPRESENTATIVES (THE "BUYER GROUP"), REGARDLESS OF
WHETHFR BUYER GROUP WAS WHOLLY OR PARTIALLY NEGLIGENT OR
OTHERWISE AT FAULT, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, COURT COSTS AND REASONABLE ATTORNEYS' FEES) ARISING
FROM SELLER'S BREACH OR NON-PERFORMANCE OF SUCH AGREEMENTS.
(d) BUYER AGREES TO RETAIN LIABILITY FOR ALL OF THE FOLLOWING
DESCRIBED OBLIGATIONS AND BUYER AGREES TO INDEMNIFY, DEFEND AND
HOLD HARMLESS SELLER, ITS PARENT AND THEIR RESPECTIVE
SUBSIDIARIES, PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, INSURERS, AGENTS AND REPRESENTATIVE AND ITS SUCCESSORS
AND ASSIGNS ("SELLER GROUP"), REGARDLESS OF WHETHER SELLER GROUP
WAS WHOLLY OR PARTIALLY NEGLIGENT OR OTHERWISE AT FAULT, FROM AND
AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, COSTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND
REASONABLE ATTORNEYS' FEES) ARISING FROM:
(I) EVENTS THAT TRANSPIRED OR CONDITIONS THAT CAME INTO EXISTENCE
PRIOR TO THE EFFECTIVE DATE THAT ARE ATTRIBUTABLE TO THE
OWNERSHIP OR OPERATION OF THE. BUYER'S ASSETS;
(II) ALL LIABILITY FOR PROPERTY DAMAGE OR INJURY TO OR DEATH OF
PERSONS OCCURRING PRIOR TO THE EFFECTIVE DATE AND ARISING OUT OF
THE OWNERSHIP OR OPERATION OF THE BUYER'S ASSETS REGARDLESS OF
WHETHER CLAIMS RELATED TO SAID DAMAGE, INJURY OR DEATH ARE
ASSERTED ON BEFORE OR AFTER THE EFFECTIVE DATE; AND/OR
(III) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BUYER WITH REGARD
TO BUYER'S ASSETS AT ANY TIME BETWEEN THE EFFECTIVE DATE AND THE
CLOSING DATE.
(IV) ANY BREACH OR VIOLATION OF THIS AGREEMENT, INCLUDING A BREACH
OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED HEREIN FROM
BUYER TO SELLER.
6.2 Further Assurances. After Closing, Seller and Buyer agree to
take such further actions and to execute, acknowledge and deliver all such
further documents that are necessary or useful in carrying out the purposes
of this Agreement or of any document delivered pursuant hereto.
6.3 Governmental Approvals. After Closing, Seller and Buyer agree to
take all action and to execute all documents reasonably requested by the
other party to obtain all necessary permissions, approvals or consents
required by federal, state or local governmental authorities to consummate
the sale contemplated by this Agreement.
6.4 Cooperation. Each party to this Agreement shall provide the
other party with reasonable access to all relevant documents, data and
other information which may be required by the other parties for the
purpose of preparing tax returns and responding to any audit by any taxing
jurisdiction. Each party to this Agreement shall cooperate with all
reasonable requests of the other parties made in connection with contesting
the imposition of taxes. Notwithstanding anything to the contrary in this
Agreement, no party to this Agreement shall be required at any time to
disclose to the other parties any tax return or other confidential tax
information.
6.5 Access. Seller and Buyer each shall use its reasonable efforts
to afford the other with access to its employees, as follows: (i), in the
case of Seller, employees of Seller, as Buyer may reasonably request for
Buyer's proper business purposes, including without limitation, the defense
of legal proceedings, who remain employees of Seller following the date of
Closing and who are familiar with the operations of the Assets, and (ii),
in the case of Buyer, employees of Buyer, as Seller may reasonably request
for Seller's proper business purposes, including without limitation, the
defense of legal proceedings, who remain employees of Buyer following the
date of Closing and who are familiar with the operations of the Buyer's
Assets. Such access may include interviews or attendance at depositions or
legal proceedings; provided, however, that in any event all out-of-pocket
expenses (including wages and salaries) reasonably incurred by any party in
connection with this Section 6.5 shall be paid or promptly reimbursed by
the party requesting such services.
7 TAXES.
7.1 Apportionment of Ad Valorem and Property Taxes. All ad valorem
taxes, read property taxes, personal property taxes, and similar
obligations ("Property Taxes") with respect to the tax period in which the
Effective Date occurs shall be apportioned as of the Effective Date between
Seller and Buyer. The owner of record on the assessment date shall file or
cause to be filed all required reports and returns incident to the Property
Taxes and shall pay or cause to be paid to the taxing authorities all
Property Taxes relating to the tax period in which the Effective Date
occurs.
7.2 Sales Taxes. Any sales, use or other tax on the transfer of the
Assets from Seller to Buyer or on the transfer of Buyer's Assets from Buyer
to Seller shall be paid by the transferor.
7.3 Other Taxes. All taxes (other than income taxes) which are
imposed on or with respect to the production of oil, natural gas or other
hydrocarbons or minerals or the receipt of proceeds therefrom (including
but not limited to severance, production, and excise taxes) shall be
apportioned between the parties based upon the respective shares of
production taken by the parties. All such taxes which have accrued prior
to the Effective Date have been or will be properly paid or withheld by
transferor and all statements, returns. and documents pertinent thereto
have been or will be properly filed by transferor. Transferee shall be
responsible for paying or withholding or causing to be paid or withheld all
such taxes which have accrued after the Effective Date and for filing all
statements, returns, and documents incident thereto.
8 MISCELLANEOUS.
8.1 Governing Law. THIS AGREEMENT AND ALL INSTRUMENTS EXECUTED IN
ACCORDANCE WITH IT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH
THE SUBSTANTIVE LAWS OF THE STATE OF LOUISIANA, WITHOUT REGARD TO CONFLICT
OF LAW RULES THAT WOULD DIRECT APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
8.2 Entire Agreement. This Agreement, including all exhibits
attached hereto and made a part hereof, together with that certain letter
agreement relating to the purchase and sale and exchange of the Assets and
Buyer's Assets dated August 19, 1997 executed by and between Seller and
Buyer, as such may have been amended, including all exhibits attached
thereto and made a part thereof, (the "Letter of Intent") constitute the
entire agreement between the parties and together supersede all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. In the event of any conflict between this
Agreement and the Letter of Intent, the provisions of this Agreement shall
take precedence. No supplement, amendment, alteration, modification, waiver
or termination of this Agreement or the Letter of Intent shall be binding
unless executed in writing by the parties hereto.
8.3 Waiver. No waiver of 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.
8.4 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.
8.5 Notices. Any notice provided or permitted to be given under this
Agreement shall be in writing, and may be served by personal delivery, by
depositing same in the mail, addressed to the party to be notified, postage
prepaid, and registered or certified with a return receipt requested or by
facsimile transmission. Notice deposited in the mail in the manner
hereinabove described shall be deemed to have been given and received on
the date of the delivery as shown on the return receipt. Notice served in
any other manner shall be deemed to have been given and received only in
and when actually received by the addressee. For purposes of notice, the
addresses of the parties shall be as follows:
Seller's Mailing Address: Enserch Exploration, Inc.
0000 Xxxx Xxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: M. A. Xxxxxxxxx
Offshore Land Representative
Telephone: (000) 000-0000
Fax: (281).000-0000
Buyer's Mailing Address: Reading & Xxxxx Development Co.
000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Director of Legal/Land
Telephone: (000) 000-0000
Fax: (000) 000-0000
Each party shall have the right upon giving ten (10) days prior notice to
the other in the manner hereinabove provided, to change its address for
purposes of notice.
8.6 Expenses. Except as otherwise provided herein, each party shall
be solely responsible for all expenses incurred by it in connection with
this transaction (including, without limitation, fees and expenses of its
own counsel and accountants).
8.7 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced under any rule of law,
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in a materially
adverse manner with respect to either party.
8.8 Survival. The warranties, representations, covenants, agreements
and obligations of the parties under this Agreement shall survive the
Closing of the transaction contemplated hereby
8.9 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives.
8.10 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.
8.11 Attorneys' 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, and, if any appeal is taken from the decision of
the trial court, reasonable attorney's fees as fixed by the appellate court
or, if appropriate, by the trial court.
8.12 Indemnity. WITH RESPECT TO ANY OBLIGATION OF ANY PARTY UNDER
ANY PROVISION OF THIS AGREEMENT TO PROVIDE INDEMNITY, DEFEND THE
INDEMNITEE PARTY, AND PAY ATTORNEYS' FEES AND OTHER COSTS AND EXPENSES
OF LITIGATION ASSOCIATED WITH THE INDEMNITEE PARTY'S DEFENSE, IF
THE INDEMNITOR PARTY IS HONORING ITS OBLIGATION TO DEFEND THE INDEMNITEE
PARTY AND THE INDEMNITEE PARTY NEVERTHELESS ENGAGES AN ATTORNEY TO
REPRESENT ITSELF AGAINST SUCH CLAIM OR LAWSUIT, THE INDEMNITOR PARTY SHALL
NOT BE RESPONSIBLE FOR AND SHALL NOT PAY SUCH ATTORNEYS' FEES AND OTHER
COSTS AND EXPENSES OF LITIGATION INCURRED BY THE INDEMNITEE PARTY THAT ARE
ATTRIBUTABLE TO THE INDEMNITEE PARTY'S INDEPENDENT AND DUPLICATIVE DEFENSE.
IF ANY INDEMNITEE PARTY UNDER ANY CIRCUMSTANCES SETTLES OR DISCHARGES (OR
DELEGATES THE RIGHT TO SETTLE OR DISCHARGE TO ANY THIRD PARTY) ANY CLAIM OR
LAWSUIT COVERED BY ANY SUCH INDEMNITY PROVISION WITHOUT OBTAINING THE PRIOR
WRITTEN CONSENT OF THE INDEMNITOR PARTY, THEN THE INDEMNITOR PARTY'S
OBLIGATION TO DEFEND, INDEMNIFY AND HOLD HARMLESS SUCH INDEMNITEE PARTY
FROM SUCH CLAIM OR LAWSUIT SHALL TERMINATE AND INDEMNITOR PARTY SHALL HAVE
NO OBLIGATION TO FUND THE COST OF ANY SUCH SETTLEMENT.
8.13 NORM. Buyer and Seller acknowledge they have been informed that
oil and gas producing formations can contain naturally occurring
radioactive material ("NORM"). Formation of scale or deposits can
concentrate NORM on equipment and in sludges. The presence of NORM in
certain concentrations requires that certain appropriate health, safety,
and environmental precautions be taken.
8.14. Assignability. This Agreement may not be assigned,
transferred or conveyed by either party hereto without the express
prior written consent of the other party, which consent shall consent
shall not be unreasonably withheld.
8.15 Waiver and Release. In a letter dated July 1, 1997
and received by Buyer on July 2, 1997, Seller notified Buyer that
Seller contracted to sell to Enterprise Gulf of Mexico Inc. ("Enterprise")
a portion of Seller's interests in a group of oil and gas leases
("Enterprise Transaction") which includes several leases committed to that
certain Joint Operating Agreement dated effective May 1, 1995, between
Seller as operator, and Buyer, et al., as non-operators ("JOA") covering
the Allegheny Unit and the adjacent area as more fully described in Exhibit
A of the JOA.
Buyer has the prior preferential right to purchase the interests to be sold
in the Enterprise Transaction that are subject to the JOA. By letter to
Seller dated July 30, 1997, Buyer notified Seller that Buyer objected to
the Enterprise Transaction and refused to waive the maintenance of uniform
interest provision of the JOA. By letter to Seller dated July 31, 1997,
Buyer notified Seller that Buyer elected to exercise its preferential right
to purchase the interests in Green Canyon 252, 299 and 301 which Seller had
contracted to sell in the Enterprise Transaction.
As additional consideration for the mutual conveyances contained
herein and in order to remove the foregoing as an issue between Seller and
Buyer, Buyer hereby waives the maintenance of uniform interest provision of
the JOA insofar as it may apply to the Enterprise Transaction and Buyer
hereby withdraws its letter of July 31, 1997 and the exercise of
preferential rights contained therein. Seller and Buyer hereby mutually
release each other from any and all claims under the JOA that are
associated with the exercise of preferential rights and the maintenance of
uniform interest pursuant to the Enterprise Transaction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first set forth above.
SELLER:
WITNESSES: ENSERCH EXPLORATION, INC.
Name:___________________________ ______________________________
Name:_________________________
Title:__________________________
Name:___________________________
BUYER:
WITNESSES: READING & XXXXX DEVELOPMENT CO..
Name:___________________________ ______________________________
Name:_________________________
Title:__________________________
Name:___________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
_____________________, 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 _________________ of Reading & Xxxxx Development Co., a Texas
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 _____th day of
August, 1997.
WITNESSES:
________________________________ ___________________________________
________________________________
___________________________________
Notary Public in and for the
State of Texas
My Commission expires:
___________________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
Xxxx X. Xxxxxx , 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 Regional
Director 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 Xxxxxxx Xxxxxxxxx and Xxxxx X. Xxxxxxxx, competent witnesses,
on the 28th day of August, 1997.
WITNESSES:
_______________________________ ___________________________________
_______________________________
___________________________________
Notary Public in and for the
State of Texas
My Commission expires:
_________________________
EXHIBIT 1.1
PART (a)
Assets To Be Assigned To Buyer by Seller
LEASEHOLD INTERESTS
1. LEASE OCS-G 8005. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
July 1, 1985, by and between the United States of America, as Lessor,
to Amerada Xxxx et al., as Lessees, bearing Serial No. OCS-G 8005
covering all of Block 253, Green Canyon, OCS Official Protraction
Diagram, NG 15-3.
Working Interest 20.00000%
Net Revenue Interest 16.50000%
(OPERATING RIGHTS SAVE AND EXCEPT THOSE RIGHTS AND HORIZONS SITUATED
BELOW AND NOT ABOVE A DEPTH OF 18,600' SUBSEA)
2. LEASE OCS-G 7049. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
June 1, 1984, by and between the United States of America, as Lessor,
and Placid Oil Company, et al., as Lessees, bearing Serial No OCS-G
7049 covering all of Block 254, Green Canyon, OCS Official Protraction
Diagram, NG 15-3.
Working Interest 20.00000%
Net Revenue Interest 17.35067%
(OPERATING RIGHTS SAVE AND EXCEPT THOSE RIGHTS AND HORIZONS SITUATED
BELOW AND NOT ABOVE A DEPTH OF 18,600' SUBSEA)
3. LEASE OCS-G 8876. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
June l, l 987, by and between the United States of America, as Lessor,
to Xxxx Petroleum Corporation et al., as Lessees, bearing Serial No.
OCS-G8876 covering all of Block 297, Green Canyon, OCS Official
Protraction Diagram, NG 15-3.
Working Interest 20.00000%
Net Revenue Interest 16.83333%
(OPERATING RIGHTS IN THE NORTH HALF (N/2) AND THE SOUTHEAST QUARTER
(SE/4), SAVE AND EXCEPT THOSE RIGHTS AND HORIZONS SITUATED BELOW AND
NOT ABOVE A DEPTH OF 15,500' SUBSEA)
(OPERATING RIGHTS IN THE SOUTHWEST QUARTER (SW/4), SAVE AND EXCEPT
THOSE RIGHTS AND HORIZONS SITUATED BELOW AND NOT ABOVE A DEPTH OF
14,000' SUBSEA)
4. LEASE OCS-G 8010. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
July l, l985, by and between the United States of America, as Lessor,
and Placid Oil Company, et al., as Lessees, bearing Serial No OCS-G
8010 covering all of Block 298, Green Canyon, OCS Official Protraction
Diagram, NC 15-3.
Working Interest 20.00000%
Net Revenue Interest 17.35067%
(OPERATING RIGHTS SAVE AND EXCEPT THOSE RIGHTS AND HORIZONS SITUATED
BELOW AND NOT ABOVE A DEPTH OF 18,600' SUBSEA)
5. LEASE OCS-Gl 6718. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
September 1, l996, by and between the United States of America, as
Lessor, and Mobil Oil Exploration & Producing Southeast Inc., et al.,
as Lessees, bearing Serial No. OCS-G l 67 l 8 covering all of Block
252, Green Canyon OCS Official Protraction Diagram, NG 15-3.
Working Interest 40.00000%
Net Revenue Interest 35.00000%
(RECORD TITLE INTEREST AS TO ALL DEPTHS)
6. LEASE OCS-G l5571. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
July l, l 995, by and between the United States of America, as Lessor,
and Enserch Exploration, Inc., et al., as Lessees, bearing Serial No.
OCS-G l557l covering all of Block 299, Green Canyon, OCS Official
Protraction Diagram, NG 15-3.
Working Interest 40.00000%
Net Revenue Interest 35.00000%
(RECORD TITLE INTEREST AS TO ALL DEPTHS)
7. LEASE OCS-G 15572. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
July 1, 1995, by and between the United States of America, as Lessor,
and Enserch Exploration, Inc., et al., as Lessees, bearing Serial No
OCS-G 15572 covering all of Block 301, Green Canyon, OCS Official
Protraction Diagram, NG 15-3.
Working Interest 40.00000%
Net Revenue Interest 35.00000%
(RECORD TITLE INTEREST AS TO ALL DEPTHS)
PART (b)
EQUIPMENT
1. XXXXX:
WORKING REVENUE
INTEREST INTEREST
A. OCS-G 7049 #3 20.00000% 17.35067%
B. OCS-G 7049 #4 20.00000% 17.35067%
C. OCS-G 7049 #4ST1 20.00000% 17.35067%
D. OCS-G 749 #5 20.00000% 17.35067%
E. OCS-G 8876 #1 20.00000% 16.83333%
2. TEMPLATE:
That certain three well drilling template acquired, inter alia, by
Seller for use in connection with the drilling of the OCS-G 7049 #5
Well.
NOTE: All references in the Exhibit 1.1 made to "Working Interest" and
"Revenue Interest," and to the numbers set forth in connection
therewith, are for title warranty purposes only.
EXHIBIT 1.2
PART (a)
Buyer's Assets To Be Assigned To Seller by Buyer
BUYER'S LEASEHOLD INTERESTS
1. LEASE OCS-G 8876. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
June 1, 1987, by and between the United States of America, as Lessor,
to Xxxx Petroleum Corporation et al., as Lessees, bearing Serial No.
OCS-G 8876 covering all of Block 295, Green Canyon, OCS Official
Protraction Diagram, NG 15-3.
Working Interest 20.00000%
Net Revenue Interest 16.83333%
(OPERATING RIGHTS IN THE NORTH HALF (N/2) AND THE SOUTHEAST QUARTER
(SE/4), SITUATED BELOW AND NOT ABOVE A DEPTH OF 15,500' SUBSEA)
(OPERATING RIGHTS IN THE SOUTHWEST QUARTER (SW/4), SITUATED BELOW AND
NOT ABOVE A DEPTH OF 14,000' SUBSEA)
2. LEASE OCS-G 15570. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
July 1, 1995, by and between the United States of America, as Lessor,
and Enserch Exploration Inc., et al., as Lessees, bearing Serial No.
OCS-G 1557O, covering all of Block 295, Green Canyon, OCS Official
Protraction Diagram, NG 15-3.
Working Interest 20.00000%
Net Revenue Interest 17.50000%
(RECORD TITLE INTEREST AS TO ALL DEPTHS
3. LEASE OCS-G 13171. That certain Oil and Gas Lease of Submerged Lands
under the Outer Continental Shelf Lands Act made and effective as of
May 1, 1991, by and between the United States of America, as Lessor,
and Exxon Corporation, et al., as Lessees, bearing Serial No. OCSG
13171, covering all of Block 341, Green Canyon, OCS Official
Protraction Diagram, NG 15-3.
Working Interest 20.00000%
Net Revenue Interest 17.500000%
(RECORD TITLE INTEREST AS TO ALL DEPTHS
PART (b)
EQUIPMENT
NONE
EXHIBIT 3.7
CONTRACTS, AGREEMENTS, COMMITMENTS AND OTHER MATTERS
1. Letter of Intent dated August 19, 1997, executed by and between
Reading & Xxxxx Development Co. and Enserch Exploration, Inc., as such
may have been amended.
2. Oil Gathering Agreement dated December 2, 1994, executed by and
between EP Operating Limited Partnership, as Producer and Manta Ray
Gathering Systems Inc., as Gatherer.
3. Gas Gathering Agreement dated December 2, 1994, executed by and
between EP Operating Limited Partnership, as Producer and Manta Ray
Gathering Systems Inc., as Gatherer.
4. That certain Exploration, Drilling and Production Unit Agreement dated
June 22, l 995. executed by and between Enserch Offshore, Inc. and
Enserch Exploration, Inc., covering and pertaining to Green Canyon
Blocks 253, 254, 297, & 298.
5. That certain Operating Agreement dated May 1, 1995, executed by and
between Enserch Exploration, Inc., Reading & Xxxxx Development Co., et
al., as amended by letters dated October 16, l995, October 31, l995
and May 17, 1996.
EXHIBIT 3.9
ENVIRONMENTAL DISCLOSURES
Incidents of Non-Compliance:
1. Blow out Preventor test using lower pressure than required for the OCS-
G 7049 #4 Well.
2. Blow out Preventor test did not indicate that each component was
effectively holding pressure for the OCS-G 7049 #4 Well.
Other:
1. OCS-G 7049 #3 Well
-loss from the XX Xxxx Fortune of 2 drums containing 2 gallons
each of engine oil and "rig-rite" BOP fluid
-loss from a waste boat while traveling from Grand Isle base to
the Treasure Stawinner of a pallet containing miscellaneous items
from National Oilwell.
-loss of anchor shackle, and some chain which broke from chain
while demooring the rig and left on the bottom (below mudline) at
3300 feet.
ALL OF THE ABOVE WERE REPORTED TO THE MMS.
EXHIBIT 5.2(a)
TO PURCHASE AND SALE AND EXCHANGE AGREEMENT
FORMS OF CONVEYANCE INSTRUMENTS
FORM #1
STATE OF TEXAS
COUNTY OF XXXXXX OCS-G ________
ASSIGNMENT OF OPERATING RIGHTS AND XXXX OF SALE
THIS Assignment and Xxxx of Sale (the "Assignment") is entered
into and shall be effective as of 12:01 a.m., August 28, 1997 (hereinafter
referred to as the "Effective Date"), by and between ____________________,
a Texas corporation, (hereinafter referred to as "Assignor"), whose mailing
address is _______________________; and, a Texas corporation (hereinafter
referred to as "Assignee"), whose mailing address is
______________________________________.
W I T N E S S E T H:
1. Sale. THAT, FOR AND IN CONSIDERATION of the sum of One Hundred
and No/100 Dollars, cash in hand paid and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
and confessed and for which due acquittance is hereby granted, Assignor
does hereby BARGAIN, GRANT, SELL, TRANSFER, ASSIGN, and CONVEY unto
Assignee an undivided twenty percent (20%) operating rights interest in and
to the following described properties (the "Assets"):
a. The oil, gas and mineral lease described on Exhibit 1, Part (a)
(the "Lease"), together with a like interest with respect to the
Lease in and to any and all (i) mineral interests, (ii)
overriding or landowners' royalty interests, (iii) surface and
subsurface interests and rights, (iv) beneficial, convertible or
reversionary interests, (v) interest owned, claimed or acquired,
or to be owned, claimed or acquired, by agreement, (vi)
production payments, (vii) contractual interests owned pursuant
to participation agreements, operating agreements or similar
agreements, and (viii) any and all like or unlike interests,
including without limitation those specific items identified on
Exhibit 1, Part (a). This shall include any contractual rights
providing for the acquisition or earning of any of the foregoing,
and Assignor's rights in respect of any pooled, communitized or
unitized acreage of which any of the foregoing is a part. (All of
the foregoing shall be referred to herein collectively as the
"Leasehold Interests.")
b. Any and all xxxxx wellbores pipe, gathering lines, compressors,
facilities equipment, platforms, pipelines and any and all other
personal, real, movable and immovable property, fixtures or
equipment which are located on or used directly in connection
with the production, treatment or transportation of oil and gas
front the Leasehold Interests, including, without limitation,
those items specifically identified on Exhibit 1, Part (b), but
specifically excluding the vessel Allegheny (the "Equipment").
c. Any and all easements, rights-of-way, and subsurface and surface
rights associated or used in connection with any such easements
or rights-of-way, which easements, rights-of-way and subsurface
and surface rights have been obtained for use in connection with
the Leasehold Interests ("the Gathering Facilities").
d. Any and all oil, gas and other minerals produced from or
attributable to the Leasehold Interests on or after the Effective
Date.
e. To the extent the same are assignable or transferable by Assignor
and to the extent and only to the extent that the same relate to
the ownership or operation of the Leasehold Interests, the
Gathering Facilities or the Equipment on or after the Effective
Date, a like interest in and to all orders, contracts, agreements
(including without limitation all operating agreements,
transportation agreements, unit agreements, participation
agreements and processing agreements), instruments, licenses,
authorizations, permits, audits, claims, liens, suits settlements
and demands, and other rights, privileges, benefits and powers
conferred upon Assignor, including, but not limited to those
listed on Exhibit 1 part (c).
TO HAVE AND TO HOLD unto Assignee, subject to the terms, conditions
and reservation hereinbelow recounted.
2. Title Warranty. Assignor warrants that:
a. Except as specifically set forth in the Purchase and Sale and
Acreage Exchange Agreement described in Article 10. below or
under the contracts and agreements listed in Exhibit 1 to this
Assignment, and further except as a consequence of the formation
of a unit, neither Assignor nor any parent, subsidiary or
affiliate of Assignor during their respective periods of
ownership has (A) executed any deed, conveyance, assignment or
other instrument as an assignor, grantor, sublessor or in another
capacity or (B) has breached any obligation under the Lease that
would (i) result now or in the future, in Assignee's being
entitled to receive less than the net revenue interest for the
Lease, well or unit set forth in Exhibit 1 of all oil and gas in,
under, and that may be produced, saved and marketed from or
attributable to such Lease, well or unit, or (ii) obligate now or
in the future, Assignee to beat the costs and expenses relating
to the maintenance, development and operation of such Lease, well
or unit in an amount greater than the working interest for the
Lease, well or unit set forth in Exhibit 1, unless the net
revenue interest attributable to said working interest is
increased by a proportionate or greater amount; and
b. Except as specifically set forth in the Purchase and Sale and
Acreage Exchange Agreement described in Section 9. below or under
the contracts and agreements listed in Exhibit 1 to this
Assignment, the Assets are free of all liens, mortgages, charges,
pledges, security interests and encumbrances;
(the limited warranty set forth in subparagraphs (a) and (b) above shall
hereinafter be referred to as the "Special Limited Warranty"). Assignor
shall convey the Assets with no warranty whatsoever other that the Special
Limited Warranty, but with full substitution and subrogation to Assignee in
and to all covenants, agreements, representations and warranties made by
others heretofore given or made it connection with the Assets or any part
thereof.
3. Acceptance. Assignee accepts this Assignment and acknowledges
delivery of the Assets and accepts the obligations as provided in the
Purchase and Sale and Acreage Exchange Agreement described in Section 9.
below (including those contracts and agreements listed on Exhibit 1 of this
Assignment, insofar and only insofar as such contracts and agreements
cover, pertain or apply to the Leasehold Interests), on or after the
Effective Date.
4. Other Warranty Provisions. Except as may be specifically set
forth to the contrary in the Purchase and Sale Agreement, Assignee
acknowledges that (a) Assignor has not made any warranty or representation,
whether express, implied, at common law, by statute or otherwise, relating
to the fitness for an intended purpose or condition of any movable property
constituting a portion of the Assets and (b) Assignee shall acquire such
personal property in "AS IS, WHERE IS" condition. Except as may be
specifically set forth to the contrary in the Purchase and Sale Agreement
described in Section 9. below (the "Agreement"), Assignee acknowledges that
Assignor has made no representations or warranties whatever, expressed or
implied, (Assignor having hereby expressly disclaimed all such warranties)
as to the accuracy, completeness, or materiality of any data, information,
record or materials now, heretofore, or hereafter made available in
connection with this Agreement (including. without limitation, any
descriptions of oil and gas leases; quality or quantity or hydrocarbon
reserves attributable to the Assets, if any; production rates, exploratory
or development drilling opportunities, decline rates, potential for
production of hydrocarbons from the Assets; the environmental condition of
said Assets; the legal, tax or other consequences of owning Assignor's
interest in the Assets; or any other information contained in any material
furnished in connection with this transaction). Any and all such data,
information, records or materials furnished by Assignor to Assignee is
provided as a convenience only and any reliance on or use of same is at the
Assignee's sole risk. EXCEPT AS MAY BE SPECIFICALLY SET FORTH TO THE
CONTRARY IN THE PURCHASE AND SALE AND ACREAGE EXCHANGE AGREEMENT, WITHOUT
LIMITING THE GENERALITY OF THIS PARAGRAPH, ASSIGNOR DISCLAIMS AND NEGATES
AS TO ANY PERSONAL PROPERTY, FIXTURES, IMPROVEMENTS AND APPURTENANCES
SUBJECT TO THIS AGREEMENT (INCLUDING ALL XXXXX): (A) ANY IMPLIED OR EXPRESS
WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR EMPRESS WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, AND (C) ANY IMPLIED OR EXPRESS WARRANTY OF
CONFORMITY TO MODELS OR S.AMPLE OR MATTERIALS. THE ASSIGNEE EXPRESSLY
AGREES THAT TITLE TO SUCH PERSONAL PROPERTY, FIXTURES, IMPROVEMENTS AND
APPURTENANCES WILL BE ACCEPTED "AS IS", "WHERE IS", "WITH ALL FAULTS" AND
IN ITS PRESENT CONDITION AND STATE OF REPAIR.
5. Liability of Successors. The terms, conditions, rights and
obligations of this Assignment shall run with the land and extend to and be
binding upon the parties hereto and their respective successors, heirs
and/or assigns.
6. Counterparts. This Assignment may be executed in several original
counterparts, all of which are identical. Each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument. The signature
pages of the counterparts may be amalgamated to form complete documents for
the purpose of recording complete documents in the public registries.
7. Severability. If any provision of this Assignment is invalid or
unenforceable in part or in whole in any jurisdiction applicable to this
Assignment 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.
8. Governing Law. THIS ASSIGNMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF
LOUISIANA, WITHOUT REGARD TO CONFLICT OF LAW RULES THAT WOULD DIRECT
APPLICATION OF THE. LAWS OF ANOTHER JURISDICTION.
9. Purchase and Sale and Acreage Exchange Agreement. Notwithstanding
anything to the contrary provided herein, this Assignment shall at all
times be subject to the terms, conditions and exceptions contained in that
certain unrecorded Purchase and Sale and Acreage Exchange Agreement dated
the same date as the effective date of this Assignment by and between
Assignor and Assignee. The unrecorded Purchase and Sale and Acreage
Exchange Agreement shall at all times govern the rights of the parties in
and to the Assets. All interested parties are hereby given notice of the
existence of the unrecorded Purchase and Sale and Acreage Exchange
Agreement.
10. MMS Approval. This Assignment is expressly made subject to the
approval of the Minerals Management Service, United States Department of
the Interior.
IN WITNESS WHEREFOF, this Assignment is executed in multiple originals
and in the presence of the undersigned witnesses on this _____th day of
August, 1997, but to be effective as of the Effective Date.
ASSIGNOR:
______________________________
WITNESSES: ______________________________
Name:________________________ Name:__________________________
Title:___________________________
Name:________________________
ASSIGNEE:
______________________________
WITNESSES: ______________________________
Name:________________________ Name:__________________________
Title:___________________________
Name:________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
__________________________, 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 _________________________ 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 ___________________ and ________________________________,
competent witnesses, on the ____th day of August. 1997.
WITNESSES:
_______________________________ ______________________________
_______________________________
______________________________
______________________________
Notary Public in and for the
State of Texas
My Commission expires:
________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
______________________________, 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 ____________________________ of Reading & Xxxxx Development
Co., a Texas 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 ___th day of
August, 1997.
WITNESSES:
_______________________________ ______________________________
_______________________________
______________________________
______________________________
Notary Public in and for the
State of Texas
My Commission expires:
________________________
FORM #0
XXXXX XX XXXXX OCS-G__________
COUNTY OF XXXXXX
ASSIGNMENT OF RECORD TITLE INTEREST
THIS Assignment of Record Title Interest (the "Assignment") is
entered into and shall be effective as of 12:01 a.m., August 28, 1997
(hereinafter referred to as the "Effective Date"), by and between
______________________________, a Texas corporation, (hereinafter referred
to as "Assignor"), whose mailing address is
___________________________________; and ______________________________, a
Texas corporation (hereinafter referred to as "Assignee"), whose mailing
address is _______________________________.
WITNESSETH:
1. Sale. THAT, FOR AND IN CONSIDERATION of the sum of One Hundred
and No/100 Dollars, cash in hand paid and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
and confessed and for which due acquittance is hereby granted, Assignor
does hereby BARGAIN, GRANT, SELL, TRANSFER, ASSIGN, and CONVEY unto
Assignee an undivided __________ percent (_____%) record title interest in
and to the following described properties (the "Assets"):
a. The oil, gas and mineral lease described on Exhibit 1, Part (a)
the "Lease", together with a like interest with respect to the
Lease in and to any and all (i) mineral interests, (ii)
overriding or landowners' royalty interests, (iii) surface and
subsurface interests and rights, (iv) beneficial, convertible or
reversionary interests, (v) interest owned, claimed or acquired,
or to be owned, claimed or acquired, by agreement, (vi)
production payments, (vii) contractual interests owned pursuant
to participation agreements, operating agreements or similar
agreements, and (viii) any and all like or unlike interests,
including without limitation those specific items identified on
Exhibit 1, Part (a). This shall include any contractual rights
providing for the acquisition or earning of any of the foregoing,
and Assignor's rights in respect of any pooled, communitized of
unitized acreage of which any of the foregoing is a part. (All of
the foregoing shall be referred to herein collectively as the
"Leasehold Interests.")
b. Any and all easements, rights-of-way, and subsurface and surface
rights associated or used in connection with any such easements
or rights-of-way, which easements, rights-of-way and subsurface
and surface rights have been obtained for use in connection with
the Leasehold Interests.
c. Any and all oil, gas and other minerals produced from or
attributable to the Leasehold Interests on or after the Effective
Date.
d. To the extent the same are assignable or transferable by Assignor
and to the extent and only to the extent that the same relate to
the ownership or operation of the Leasehold Interests, on or
after the Effective Date, a like interest in and to all orders,
contracts, agreements (including without limitation all operating
agreements, transportation agreements, unit agreements,
participation agreements and processing agreements), instruments,
licenses, authorizations, permits, audits, claims, liens, suits,
settlements and demands, and other rights, privileges, benefits
and powers conferred upon Assignor, including, but not limited to
those listed on Exhibit 1 part (c).
TO HAVE AND TO HOLD unto Assignee, subject to the terms, conditions
and reservations hereinbelow recounted.
2. Title Warranty. Assignor warrants that:
a. Except as specifically set forth in the Purchase and Sale and
Acreage Exchange Agreement described in Article 10. below or
under the contracts and agreements listed in Exhibit 1 to this
Assignment, and further except as a consequence of the formation
of a unit, neither Assignor nor any parent, subsidiary or
affiliate of Assignor during their respective periods of
ownership has (A) executed any deed, conveyance, assignment or
other instrument as an assignor, grantor, sublessor or in another
capacity or (B) has breached any obligation under the Lease that
would (i) result now or in the future, in Assignee's being
entitled to receive less than the net revenue interest for the
Lease, well or unit set forth in Exhibit 1 of all oil and gas in,
under, and that may be produced, saved and marketed from or
attributable to such Lease, well or unit, or (ii) obligate now or
in the future, Assignee to bear the costs and expenses relating
to the maintenance, development and operation of such Lease, well
or unit in an amount greater than the working interest for the
Lease, well or unit set forth in Exhibit 1, unless the net
revenue interest attributable to said working interest is
increased by a proportionate or greater amount; and
b. Except as specifically set forth in the Purchase and Sale and
Acreage Exchange Agreement described in Section 9. below or under
the contracts and agreements listed in Exhibit 1 to this
Assignment, the Assets are free of all liens, mortgages, charges,
pledges, security interests and encumbrances;
(the limited warranty set forth in subparagraphs (a) and (b) above shall
hereinafter be referred to as the "Special Limited Warranty"). Assignor
shall convey the Assets with no warranty whatsoever other than the Special
Limited Warranty, but with full substitution and subrogation to Assignee in
and to all covenants, agreements, representations and warranties made by
others heretofore given or made in connection with the Assets or any part
thereof.
3. Acceptance. Assignee accepts this Assignment and acknowledges
delivery of the Assets and accepts the obligations as provided in the
Purchase and Sale and Acreage Exchange Agreement described in Section 9.
below (including those contracts and agreements listed on Exhibit 1 of this
Assignment, insofar and only insofar as such contracts and agreements
cover, pertain or apply to the Leasehold Interests), on or after the
Effective Date.
4. Other Warranty Provisions. Except as may be specifically set
forth to the contrary in the Purchase and Sale and Acreage Exchange
Agreement, Assignee acknowledges that (a) Assignor has not made any
warranty or representation, whether express, implied, at common law, by
statute or otherwise, relating to the fitness for an intended purpose or
condition of any movable property constituting a portion of the Assets and
(b) Assignee shall acquire such personal property in "AS IS, WHERE IS"
condition. Except as may be specifically set forth to the contrary in the
Purchase and Sale and Acreage Exchange Agreement described in Section 9.
below (the "Agreement"), Assignee acknowledges that Assignor has made no
representations or warranties whatever, expressed or implied, (Assignor
having hereby expressly disclaimed all such warranties) as to the accuracy,
completeness, or materiality of any data, information, record or materials
now, heretofore, or hereafter made available in connection with this
Agreement (including, without limitation, any descriptions of oil and gas
leases; quality or quantity or hydrocarbon reserves attributable to the
Assets, if any; production rates, exploratory or development drilling
opportunities, decline rates, potential for production of hydrocarbons from
the Assets; the environmental condition of said Assets; the legal, tax or
other consequences of owning Assignor's interest in the Assets; or any
other information contained in any material furnished in connection with
this transaction). Any and all such data, information, records or materials
furnished by Assignor to Assignee is provided as a convenience only and any
reliance on or use of same is at the Assignee's sole risk. EXCEPT AS MAY
BE SPECIFICALLY SET FORTH TO THE CONTRARY IN THE PURCHASE AND SALE AND
ACREAGE EXCHANGE AGREEMENT, WITHOUT LIMITING THE GENERALITY OF THIS
PARAGRAPH, ASSIGNOR DISCLAIMS AND NEGATES AS TO ANY PERSONAL PROPERTY,
FIXTURES, IMPROVEMENTS AND APPURTENANCES SUBJECT TO THIS AGREEMENT
(INCLUDING ALL XXXXX): (A) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, AND (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY
TO MODELS OR SAMPLE OR MATERIALS. THE ASSIGNEE EXPRESSLY AGREES THAT TITLE
TO SUCH PERSONAL PROPERTY, FIXTURES, IMPROVEMENTS AND APPURTENANCES WILL BE
ACCEPTED "AS IS", "WHERE IS", "WITH ALL FAULTS", AND IN ITS PRESENT
CONDITION AND STATE OF REPAIR.
5. Liability of Successors. The terms, conditions, rights and
obligations of this Assignment shall run with the land and extend to and be
binding upon the parties hereto and their respective successors, heirs
and/or assigns.
6. Counterparts. This Assignment may be executed in several
original counterparts, all of which are identical. Each of such
counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same
instrument. The signature pages of the counterparts may be amalgamated to
form complete documents for the purpose of recording complete documents in
the public registries.
7. Severability. If any provision of this Assignment is invalid or
unenforceable in part or in whole in any jurisdiction applicable to this
Assignment, 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.
8. Governing Law. THIS ASSIGNMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF
LOUISIANA, WITHOUT REGARD TO CONFLICT OF LAW RULES THAT WOULD DIRECT
APPLICATION OF THE LAWS OF ANOTEHR JURISDICTION.
9. Purchase and Sale and Acreage Exchange Agreement. Notwithstanding
anything to the contrary provided herein, this Assignment shall at all
times be subject to the terms, conditions and exceptions contained in that
certain unrecorded Purchase and Sale and Acreage Exchange Agreement dated
the same date as the effective date of this Assignment by and between
Assignor and Assignee. The unrecorded Purchase and Sale and Acreage
Exchange Agreement shall at all times govern the rights of the parties in
and to the Assets. All interested parties are hereby given notice of the
existence of the unrecorded Purchase and Sale and Acreage Exchange
Agreement.
10. MMS Approval. This Assignment is expressly made subject to the
approval of the Minerals Management Service, United States Department of
the Interior.
IN WITNESS WHEREFORE, this Assignment is executed in multiple
originals and in the presence of the undersigned witnesses on this this
_____th day of August, 1997, but to be effective as of the Effective Date.
ASSIGNOR:
______________________________
WITNESSES:
______________________________
Name:________________________
Name:_________________________
Title:__________________________
Name:________________________
ASSIGNEE:
______________________________
WITNESSES:
______________________________
Name:________________________
Name:_________________________
Title:__________________________
Name:________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
______________________________, 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 ___________________________________of Enserch Exploration,
Inc., a Texas corporation, or 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 ______________________________
and______________________________, competent witnesses, on the ___th day of
August, 1997.
WITNESSES:
_______________________________ ______________________________
_______________________________
______________________________
______________________________
Notary Public in and for the
State of Texas
My Commission expires:
________________________
STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, duly commissioned and qualified
within and for the State and County aforesaid, personally came and
appeared:
______________________________, 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 ______________________________ of Reading & Xxxxx
Development Co., a Texas 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 ___th day of
August, 1997.
WITNESSES:
_____________________________ ______________________________
_____________________________
______________________________
Notary Public in and for the
State of Texas
My Commission expires:
________________________
