PARTICIPATION AGREEMENT
THIS AGREEMENT, is made and entered into this 31st day of August, 1999,
and effective the 1st day of August, 1999, by and between Xxxx Oil Properties,
Inc., a Wyoming Corporation, whose address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxx 00000, ("Xxxx") and Infinity Oil & Gas, Inc., a Colorado
Corporation, whose address is 000 00xx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000, ("Infinity").
RECITALS
1. Xxxx owns an interest in the oil and gas leases described on the
attached Exhibit A ("Leases") insofar as the Leases cover the lands described
on Exhibit A and as further outlined in red on the attached Exhibit B
("Lands"). The Leases and Lands together are hereafter referred to as the
"Lease Acreage"; and
2. Infinity and Xxxx wish to enter into this Agreement to provide for
the drilling of a pilot test program and the drilling of additional xxxxx on
the Lease Acreage pursuant to which Infinity will earn interests in the Leases
and Lands.
NOW, THEREFORE in consideration of the premises and of the mutual
covenants and agreements set forth below, the parties agree as follows:
1. PILOT PROGRAM
1.1 Commencement
Infinity shall have the exclusive option to develop a pilot project on
the Lease Acreage ("Pilot Program") for the purpose of exploring the oil and
gas potential of all formations from the surface of the earth down to 100 feet
below the base of the Xxxxxx Sand, but in all cases above the Frontier
Formation ("Objective Formations"). The xxxxx drilled in this Pilot Program
shall be referred to as the Pilot Xxxxx. Infinity shall select a location of
the first Pilot Well ("First Pilot Well") to be located either in Section 4,
Section 5 or Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 114 West, Sublette County,
Wyoming and commence on or before November 15, 1999, unless prevented by Force
Majeure, as that term is hereinafter defined. The first Test Pilot Well shall
be located within the Riley Ridge Unit. Within one year from the date of this
Agreement, Infinity shall have the option to drill four (4) additional Pilot
Xxxxx directly or diagonally contiguous to the Drilling Block for the First
Pilot Well, which shall not be larger than 160 acres, more or less. At least
two of the additional four Test Pilot Xxxxx shall be located within the Riley
Ridge Unit. Each of the Pilot Xxxxx shall be drilled with due diligence and
in a workmanlike manner for purposes of testing and developing to a depth
sufficient to test the Upper Mesa Verde coals. Each of the Pilot Xxxxx shall
be located in conformance with applicable oil and gas spacing or location
rules of the State of Wyoming and any other appropriate governmental agency.
Notwithstanding anything else contained herein, Xxxx shall retain right to
explore or cause to explore for formations lying below the Objective
Formations.
1.2 Interest Earned
By timely drilling and completing five Pilot Xxxxx in the Pilot Program
as set forth above, Infinity shall earn the following:
(a) Subject to Article 1.2 (c) and (d), an assignment of all of
Xxxx'x right, title and interest in the working interest and operating rights
in the Leases insofar as the Leases cover Lands within the approximately 160
acre drilling block ("Drilling Block") for each Pilot Well drilled and
completed and limited to formations from the surface of the earth down to the
stratigraphic equivalent of the total depth drilled, not to exceed 100 feet
below the base of the Xxxxxx Sand and in all cases above the Frontier
Formation, in each of the Pilot Xxxxx, subject to a reservation of an
overriding royalty interest as described in Article 3 below, and the option to
back-in at Pilot Program Payout to a proportionate 30% leasehold working
interest;
(b) Subject to Article 1.2 (c) and (d), an assignment of 70% of all
of Xxxx'x right, title and interest in and to the working interest and
operating rights in the Leases insofar as the Leases cover Lands within each
Drilling Block, which are directly or diagonally contiguous to Drilling Blocks
for the Pilot Xxxxx described in Article 1.2 (a) and limited in depth from the
surface of the earth to the stratigraphic equivalent of the total depth
drilled, not to exceed 100 feet below the base of the Xxxxxx Sand and in all
cases above the Frontier Formation, in the Pilot Xxxxx.
(c) If the BLM, however, designates a Participating Area ("PA")
pursuant to the Riley Ridge Unit Agreement for a Pilot Well which extends
outside the Drilling Block, then Xxxx shall assign 100% of Xxxx'x interest in
the additional acreage to Infinity and the assignment of the Leases covering
the additional acreage shall be on the same terms as if the Leases were part
of the Drilling Block acreage as described in Article 1.2(a) above.
The assignment from Xxxx to Infinity, covering the Leases
outside the original Drilling Block(s) will remain as provided in Article 1.2
(b) above.
(d) If the BLM, however, designates a PA, pursuant to the Riley
Ridge Unit Agreement for a Pilot Well which is less than the Drilling Block,
then Infinity shall assign 30% of Infinity's interest, previously assigned by
Xxxx, in that excluded acreage to Xxxx and the assignment shall be on the
same terms described in Article 1.2(a) above, exclusive of any overriding
royalty or burdens created by Infinity subsequent to the date of this
agreement. In addition, Xxxx shall re-assign any overriding royalty reserved
on this excluded acreage.
The assignment from Xxxx to Infinity, covering the Leases
outside the original Drilling Block(s) will remain as provided in Article 1.2
(b) above.
(e) The right to commence drilling additional xxxxx anywhere on the
Lease Acreage, including Leases and Lands previously earned under this
Agreement, in accordance with Article 2 below.
The term "drilling and completing" shall mean a well that has been cased,
perforated and stimulated for purposes of producing.
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1.3 Termination
If Infinity obtains executed participation/farmout agreements similar in
substance to the terms of this agreement from at least 75% of the leasehold
working interest owners within the Riley Ridge Unit, and obtains an approved
permit to drill the First Pilot Well from the appropriate governmental
agencies, yet does not commence the drilling of a well by November 15, 1999,
then, subject to Article 11. Force Majeure of this Agreement, this
Participation Agreement shall be null and void, and Infinity shall pay to Xxxx
the sum of Fifty Thousand dollars ($50,000.00) as liquidated damages and Xxxx
shall have no other recourse against Infinity. In addition, this Agreement
shall terminate and the parties shall have no further obligations or
liabilities under the terms of this Agreement if on or before one year from
the date of this Agreement, Infinity has failed to drill and complete the
first Pilot Well and the remaining four Pilot Xxxxx within the Pilot Program.
In the event the necessary permits and approvals are issued by the appropriate
governmental agencies, and Infinity obtains executed participation/farmout
agreements similar in substance to the terms of this agreement from at least
75% of the leasehold working interest owners within the Riley Ridge Unit,
subsequent to October 31, 1999, Infinity shall spud the First Pilot Well
within thirty (30) days from receipt of said permits and/or approvals or be
subject to the penalties herein.
1.4 Pilot Program Payout
Pilot Program Payout shall be 7:00 a.m. Mountain time on the first day
following the date on which Infinity has received from the proceeds of
production from the Pilot Program an amount equal to all Costs attributable to
the interest assigned or relinquished by Xxxx to Infinity in the Pilot
Program. As set forth in this paragraph, proceeds of production from the
Pilot Program shall mean the proceeds from the oil, gas and associated
hydrocarbons attributable to the interest assigned by Xxxx to Infinity in the
Pilot Program after deducting the following:
(a) Royalty interests, overriding royalty interests, production
payments and other leasehold burdens existing as of the date of this Agreement
and not created by or its successors and assigns;
(b) Production, excise, severance and other taxes based upon
production; and
(c) Xxxx'x overriding royalty reserved under this Agreement.
Costs, as defined herein, shall mean the actual costs incurred by
Infinity for drilling, equipping, completing and operating each of the five
Pilot Xxxxx under the terms of the Unit Operating Agreement before payout and
constructing and operating a water disposal and gas gathering system, provided
that Xxxx does not participate in said system as hereinafter provided, for the
Pilot Program. Infinity shall provide Xxxx, monthly, with a payout status
report.
1.5 Option to Convert at Payout
Infinity shall notify Xxxx in writing of the time of Pilot Program Payout
and Xxxx shall have thirty (30) days after receipt of such notice to elect, on
a project basis, one of the following described options:
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(a) Retain its overriding royalty reserved under Article 3.
ASSIGNMENT OF EARNED INTEREST herein, as to all of the Leases and Lands within
the five Drilling Blocks or PA's for the Pilot Program, or
(b) Terminate its reserved overriding royalty in the Pilot Program
and notify Infinity to re-assign 30% of the working interest and operating
rights in the Leases and Lands within the five Drilling Blocks or PA's for the
Pilot Program to Xxxx, proportionately reduced to Xxxx'x original interest,
exclusive of any overriding royalty or other burdens created by Infinity
subsequent to this Agreement.
1.6 Option to Participate in Gathering System
At any time following 6 months after the drilling and completing of the
five Pilot Xxxxx, Infinity shall advise Xxxx of its plan for construction of a
gas gathering system to compress, dehydrate and gather gas produced from the
Lease Acreage ("Gathering System"). If Infinity, or its affiliate, elect to
construct the Gathering System, then Xxxx shall be given an opportunity to
participate in the system. Infinity shall provide Xxxx an Authorization for
Expenditure ("AFE") which will set forth the cost of constructing the
Gathering System. Xxxx shall have thirty days after receipt of the AFE within
which to elect to participate for 30% of its gross ownership interest in the
Riley Ridge Unit as of the date of this Agreement. If Xxxx elects to
participate, then Xxxx and Infinity shall enter into a Joint Venture Agreement
providing for the construction, ownership and operation of the Gathering
System.
2. OPTION XXXXX
2.1 Additional Drilling
In the event Infinity satisfies the conditions for earning leasehold
interests by drilling and completing five Pilot Xxxxx in the Pilot Program,
then Infinity shall have the option to continue drilling xxxxx at locations
selected by Infinity anywhere on the Lease Acreage (" Option Xxxxx") for so
long as it satisfies the following conditions:
(a) On or before two years after the effective date of the
Agreement, Infinity commences, or causes to be commenced, actual drilling
operations for two Option Xxxxx at a legal location on the Lease Acreage, to a
minimum depth equivalent of 1,350' in the Belco Petroleum #3 Riley Ridge well
located in the SW 1/4 SW 1/4 Section 13, Township 29 North, Range 114 West,
and continues to drill such xxxxx with due diligence and in a workmanlike
manner to test any of the Objective Formations; and
(b) On or before three years after the effective date of the
Agreement, and each year thereafter, Infinity commences, or causes to be
commenced, actual drilling operations for four Option Xxxxx at a legal
location on the Lease Acreage, to a minimum depth equivalent of 1,350' in the
Belco Petroleum, #3 Riley Ridge well located in the SW 1/4 SW 1/4 Section 13,
Township 29 North, Range 114 West, and continues to drill such xxxxx with due
diligence and in a workmanlike manner to test any of the Objective Formations.
It is the intent of the parties that these drilling obligations shall be
cumulative including the xxxxx initially drilled in the initial Pilot Program
(for example, should Infinity drill eleven xxxxx in the first year, the
contract extension qualification will be satisfied for the first three years).
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Re-entry of any existing wellbore shall qualify as a Pilot or Option Well,
however, Infinity shall have no right to re-enter any wellbore drilled to the
Madison Formation.
2.2 Option Earning Well
By drilling and completing an Option Well on Lease Acreage which has not
been previously earned by or assigned to Infinity under the terms of this
Agreement ("Option Earning Well"), Infinity shall earn the following:
(a) Subject to Article 2.2 (c) and (d), an assignment of all of
Xxxx'x leasehold working interest and operating rights in the Leases insofar
as the Leases cover Lands within the Drilling Block for the Option Earning
Well and limited to formations from the surface of the earth down to the
stratigraphic equivalent of the total depth drilled, not to exceed 100 feet
below the base of the Xxxxxx Sand and in all cases above the Frontier
Formation, subject to a reservation of an overriding royalty interest
described in Article 3 below and the option to back-in at payout of the Option
Earning Well to a proportionate 30% leasehold working interest; and
Subject to Article 2.2 (c) and (d), an assignment of 70% of
Xxxx'x leasehold working interest and operating rights in that portion of the
Leases covering Lands within each Drilling Block, which is directly or
diagonally contiguous to the Drilling Block for the Option Earning Well, and
limited in depth to formations from the surface of the earth down to the
stratigraphic equivalent of the total depth drilled, not to exceed 100 feet
below the base of the Xxxxxx Sand and in all cases above the Frontier
Formation, in the Option Earning Well.
This assignment of 70% of all of Xxxx'x right, title and
interest in and to the working interest and operating rights in the Leases in
the Drilling Blocks shall in no event exceed eight (8) Drilling Blocks.
(c) If the BLM, however, designates a PA, pursuant to the Riley
Ridge Unit Agreement for an Option Earning Well which extends outside the
Drilling Block, then Xxxx shall assign 100% of Xxxx'x interest in the
additional PA acreage to Infinity and the assignment of the Leases covering
the additional acreage shall be on the same terms as if the Leases were part
of the Drilling Block acreage as described in Article 2.2(a) above.
The assignment from Xxxx to Infinity, covering the earned
Leases outside the established PA will remain as provided in Article 2.2(b)
above.
(d) If the BLM, however, designates a PA under the Riley Ridge Unit
Agreement for an Option Earning Well, which is less than the Drilling Block,
then Infinity shall assign 30% of Infinity's interest, previously assigned by
Xxxx, in the excluded acreage to Xxxx and the assignment shall be on the same
terms described in Article 2.2(a) above, exclusive of any overriding royalty
or other burdens created by Infinity subsequent to the date of this agreement.
In addition, Xxxx shall re-assign any overriding royalty reserved on this
excluded acreage.
The assignment from Xxxx to Infinity, covering the leases
outside the original Drilling Block(s) will remain as provided in Article 2.2
(b) above.
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2.3 Payout of Option Earning Well
Payout of an Option Earning Well shall be defined as 7:00 a.m. Mountain
time on the first day following the date on which Infinity has received from
the proceeds of production from an Option Earning Well, an amount equal to all
Costs attributable to the interest assigned or relinquished by Xxxx to
Infinity in the Option Earning Well. As set forth in this paragraph, proceeds
of production from the Option Earning Well shall mean the proceeds from the
oil, gas and associated hydrocarbons attributable to the interest assigned by
Xxxx to Infinity in the Option Earning Well after deducting the following:
(a) Royalty interests, overriding royalty interests, production
payments and other leasehold burdens existing as of the date of this Agreement
and not created by its successors or assigns;
(b) Production, excise, severance and other taxes based upon
production; and
(c) Xxxx'x overriding royalty reserved under this Agreement.
Costs, as defined herein, shall mean the actual costs incurred by Infinity in
drilling, equipping, completing and operating the Option Earning Well under
the terms of the Unit Operating Agreement and constructing and operating a
water disposal and gas gathering system, provided that Xxxx does not
participate in said system as hereinabove provided, for the Option Earning
Well. Infinity shall provide Xxxx, monthly, with a payout status report.
2.4 Conversion Rights
Infinity shall notify Xxxx in writing of the time that Payout of an
Option Earning Well occurs and Xxxx shall have thirty (30) days after receipt
of such notice to elect, on a well by well basis, one of the following
options:
(a) Retain its overriding royalty reserved under Article 3.
ASSIGNMENT OF EARNED INTERESTS herein, or
(b) Terminate its reserved overriding royalty in the Drilling
Block, or PA, for the Option Earning Well and notify Infinity to re-assign 30%
of the working interest and operating rights in the Leases and Lands within
the Drilling Block or PA for the Option Earning Well to Xxxx, proportionately
reduced to Xxxx'x original interest, exclusive of any burdens created by
Infinity subsequent to this Agreement.
3. ASSIGNMENT OF EARNED INTERESTS
The leasehold interests earned by Infinity as described in Articles 1 and
2 shall be conveyed in accordance with the terms and conditions of the
assignment form attached hereto as Exhibit D. As to those Leases which were
earned by drilling and completing the Pilot Program or any Option Earning
Well, the assignment shall reserve to Xxxx a proportionate overriding royalty
interest equal to the difference between the net revenue interest of record on
the effective date of this Agreement and 80.5%, to a maximum of a 2%
overriding royalty. Should the net revenue of a Lease be equal to or less
than 80.5%, then Xxxx shall reserve a proportionate 1/2 of 1% overriding
royalty. All such reserved overriding royalties shall be on all of the oil,
gas and associated hydrocarbons, including coalbed methane, produced, saved
and marketed under the terms of the Leases and Lands conveyed under the
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assignment. (As example, should a Lease have a present net revenue of
82.008929%, then Xxxx shall deliver an 80.5% net revenue leasehold to
Infinity, reserving a 1.508929% overriding royalty to Xxxx. As further
example, should a Lease have a present net revenue of 82.611328%, then Xxxx
shall deliver an 80.611328% net revenue leasehold to Infinity, reserving a 2%
overriding royalty to Xxxx. As a final example, should a Lease have a present
net revenue of 80.5%, then Xxxx shall deliver an 80.00% net revenue leasehold
to Infinity, reserving a 0.5% overriding royalty to Xxxx.) The assignment
shall state that the interest assigned shall be proportionately reduced in the
event the Leases cover less than 100% of the interest in the oil, gas and
associated hydrocarbons, including coalbed methane, underlying the Lands
conveyed, or in the event the assignor owns less than 100% of the leasehold
working interest in the Leases and Lands. Xxxx shall have the option of
converting the overriding royalty interest at payout to a 30% working interest
proportionately reduced. The overriding royalty interest reserved shall be
free and clear of all costs of production except ad valorem, production and
severance taxes assessed thereon. Xxxx'x overriding royalty interest shall,
however, bear its proportionate share of all post-production costs in the same
amount and in the same manner as allowed to be deducted by Federal and/or
State Lessors within the Leases and Lands.
4. REASSIGNMENT OF INTERESTS
On the third anniversary following the end of Infinity's accumulated
Option Well contract extension period provided for under Article 2.1, Xxxx
shall have the right to notify Infinity in writing of its option to have
Infinity reassign all its interest in and to all those 160 acre drilling
blocks which Infinity has previously earned but had not drilled a well, on, in
or under, or has been included into a PA pursuant to the terms of this
agreement. Such assignment shall be exclusive of all overriding royalty and
other burdens created by Infinity after the effective date of this Agreement.
5. COST OF THE PILOT PROGRAM AND OPTION EARNING XXXXX
The entire cost, expense and risk of drilling, testing and completing
each Pilot Well and Option Earning Well shall be borne by Infinity, it being
understood that the risk to be borne by Infinity shall include, but shall not
be limited to, any claim, demand, action, cause of action, judgment,
attorney's fee or expense of investigation or litigation, for injury to, or
loss or destruction of property or for injury to or death of any person
arising out of or in connection with the drilling, testing and completion of
said well, whether through an act or omission of a party to this Agreement or
otherwise. The entire cost, expense and risk (including those enumerated
above) of operations on the Pilot Xxxxx and Option Earning Xxxxx through
drilling, testing and completing or abandoning of said xxxxx shall be borne by
Infinity, unless Xxxx has elected to take over such xxxxx under the provisions
of Article 6 hereof. Infinity shall pay for, and not include in its costs
attributable to payout, all costs of cores, lab analysis and studies conducted
upon the Pilot Xxxxx and Option Earning Xxxxx for the first two (2) years of
this Agreement. All costs of drilling and completion conducted hereunder
utilizing equipment and/or services owned by Infinity or its assigns, shall be
controlled and charged as provided for under Exhibit "1", Page 2, Article 7.A.
& 7.B., XXXXX (Accounting Procedure Joint Operations) of the Unit Operating
Agreement of the Riley Ridge Unit Area, dated December 23, 1981. The
obligations imposed in this Article shall include, but not be limited to,
maintaining the Lease Acreage free and clear of all liens and encumbrances.
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6. TAKE OVER PROVISION
If Infinity shall determine that any Pilot Well or Option Well ("the
Xxxxx") is incapable of producing oil or gas in paying quantities and,
therefore, should be plugged and abandoned, then Infinity shall promptly
notify Xxxx by telephone, to be confirmed in writing, of such determination.
Xxxx shall have twenty-four (24) hours, when a rig is on location, following
the receipt of such telephone notice, or twenty-four (24) hours following the
receipt of logs, whichever occurs later, within which to advise Infinity by
telephone, to be confirmed in writing, of whether it elects to take over
operations If Xxxx does not elect to take over operations or if Xxxx fails to
respond in the manner and within the time indicated above, then Infinity shall
proceed at its cost and expense to plug and abandon said well in accordance
with applicable state laws and shall level the ground around the location and
clear and clean the premises to the satisfaction of the surface owners and
surface lessees. If Xxxx elects to take over operations for the Well, then
all further operations on said well, including, if indicated, the plugging and
abandonment thereof, shall be conducted entirely by Xxxx, at its sole cost,
risk and expense. Infinity shall be deemed to have relinquished and
transferred to Xxxx, all of its right, title and interest in and to (i) said
Well, and production therefrom; (ii) the material and equipment therein and
used or acquired in connection therewith said well which Xxxx retains for
conducting operations hereunder, which Infinity agrees shall be free and clear
of burdens created by, through or under Infinity; and (iii) the following
described land: all oil and gas leasehold interest, whether or not described
in Exhibit A attached hereto, in which Infinity owns an interest insofar and
only insofar as they cover the drillsite spacing unit for said well. If Xxxx
shall elect to continue operations on a Well, as above provided, it shall
reimburse Infinity for the salvage value, less the estimated costs of salvage,
of all material and equipment in such well and used or acquired in connection
therewith. Salvage value shall be determined in accordance with the XXXXX
1984 Accounting Procedure attached as Exhibit "E" to the Operating Agreement.
If Infinity determines to plug a well which has been completed as a
producing well, then the take-over provisions as provided in the Unit
Operating Agreement shall apply.
7. LEASE AND RIGHT-OF-WAY ADMINISTRATION
Xxxx shall retain responsibility for administration of the Leases and any
other interests subsequently acquired under the AMI provision including the
payment of rentals and shut-in royalties. Xxxx shall also retain
responsibility for payment of all amounts due under the terms of any
rights-of-way affecting the Lease Acreage. Upon receiving written notice from
Xxxx, Infinity shall reimburse Xxxx for all minimum royalties, lease rentals
and right-of-way payments due upon any of the Lease Acreage in which Infinity
has earned or has a right to earn an interest beginning with the effective
date of this Agreement and for so long thereafter as this Agreement remains in
effect. Provided, however, as to Lease Acreage earned under this Agreement in
which Xxxx has either retained or backed-in for a working interest, Xxxx shall
be responsible for its proportionate share of such payment in accordance with
the terms of the Operating Agreement.
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8. WELL DATA AND ACCESS
Xxxx shall be given thirty (30) days notice prior to commencement of all
drilling operations. Xxxx'x representative (as appointed by Xxxx) shall have
the right, at Xxxx'x risk, to have access to the xxxxxxx floor and to observe
all operations on all xxxxx drilled on the Lease Acreage. Infinity shall
promptly furnish Xxxx'x representative with not less than one copy of all
applications and reports pertaining to the Lease Acreage, of each daily
drilling report, and of each well log, core analysis or other data taken from
xxxxx located on the Lease Acreage. Infinity agrees, at Xxxx'x request, to
furnish Xxxx'x representative true and correct information pertaining to each
well, the production therefrom (including true and complete copies of all
contracts or agreements and all amendments and modifications thereof) for
sale, processing or other disposition of any product produced from the Lease
Acreage and such technical information as Infinity may acquire with respect to
sands, coals and formations encountered. Xxxx'x representative shall have the
right to be present when xxxxx are tested and/or tanks are gauged and shall
have the right to examine all run tickets and to have full information as to
production and runs, including copies of all run tickets upon request. In the
event Infinity notifies Xxxx in writing that Infinity considers any such
information or data to be confidential, Xxxx agrees, until the termination of
this agreement or for a period not to exceed the period that a particular
matter is held confidential by the state agency, whichever is the shorter
period of time, not to disclose such information or data to any third party
unless such information or data previously has been available to or examined
by the third-party or otherwise generally available to the public or any
governmental authority or agency other than the state agency. This shall not
be interpreted to require Infinity to furnish Xxxx or Xxxx'x representative
with any interpretive information or data; or any information or data which
Infinity is obligated to keep confidential.
9. SUB-OPERATOR
The parties shall use all reasonable commercial efforts to negotiate and
work with the BLM and the other working interest owners under the Riley Ridge
Unit Operating Agreement to have Infinity designated as a sub-operator of the
Unit with respect to the Objective Formations.
10. OPERATING AGREEMENT
The Lease Acreage is subject to a Unit Operating Agreement for the Riley
Ridge Unit. Xxxx has been designated the unit operator of the Riley Ridge
Unit. As unit operator, Xxxx shall use its best efforts to cooperate and
assist Infinity in obtaining the necessary approvals to conduct the operations
contemplated by Infinity under the terms of this Agreement including without
limitation proposing the drilling of xxxxx under the terms of the Unit
Operating Agreement; obtaining permits from the Bureau of Land Management;
revising the plan of development for the unit as necessary and such other
actions as may be warranted to assist Infinity in conducting its operations
under this Agreement. In the event of a conflict between the terms of this
Agreement and the terms of the Riley Ridge Unit Operating Agreement then as
between Xxxx and Infinity the terms of this Agreement shall control.
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11. FORCE MAJEURE
If either party is rendered unable, wholly or in part by force majeure,
to carry out its obligations under this Agreement, other than any obligation
to make any payments, such party shall give to the other party, prompt written
notice of the force majeure, with reasonably full particulars, and thereupon
the obligations of the parties, so far as they are affected by the act of
force majeure, shall be suspended during, but not longer than the continuance
of the force majeure, plus such reasonable further period of time not to
exceed 60 days, if any, required to resume the suspended operation. The
affected party shall use all reasonable diligence to remove the force majeure
situation as quickly as practicable; provided, that it shall not be required
to settle strikes, lockouts or other labor difficulty contrary to its wishes,
the method, procedure and result of all such difficulties being entirely
within the discretion of the party concerned. "Force majeure" means an act of
God, strike, lock-out or other industrial disturbance, act of the public
enemy, war, blockade, public riot, lightning, fire, storm, flood or other
adverse weather condition, explosion, governmental action, governmental
inaction, restraint or delay, unavailability of equipment or any other cause,
whether of the kind specifically enumerated above or otherwise, which is not
reasonably within the control of the party claiming force majeure. Force
Majeure, as applied to the commencement of the First Pilot Well, shall
specifically include, but not be limited to, the ability of Infinity to obtain
all permits and approvals by the appropriate governmental agencies needed to
commence drilling prior to October 31, 1999.
12. COMPLIANCE AND INDEMNITY:
Infinity shall comply with and conduct its operations hereunder in
accordance with all applicable laws, ordinances, rules, regulations and orders
of all governmental authorities having jurisdiction thereof. Infinity shall
indemnify and hold Xxxx harmless from any and all claims, demands or judgments
of whatsoever nature arising out of or asserted because of Infinity's
performance or failure to perform the obligations of this Agreement or because
of Infinity's performance in the drilling of any well hereunder prior to
Payout and after Payout unless Xxxx has elected to exercise its right to
retain or convert to a working interest hereunder.
13. INSURANCE:
Infinity agrees to insure and keep insured at all times all operations
conducted by it on the Lease Acreage in compliance with the insurance
provision set out under Exhibit D' to the attached Unit Operating Agreement
(Exhibit C).
14. NOTICES:
Except as herein otherwise expressly provided, any notice or other
communication required or permitted hereunder shall be deemed to have been
properly given or delivered when delivered personally or by telefax
transmission or mail to a party as follows:
Xxxx Oil Properties, Inc.
c/o Xxxxx Xxxx
000 Xxxx Xxxxxx Xxxxxx,
Xxxxx 000,
Xxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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Infinity Oil & Gas, Inc.
c/o Xxxxx Xxxxxxxx
000 00xx Xxxxxx,
Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
The date of service by courier or hand delivery is the date on which such
notice or other communication is received by the addressee, by facsimile is
the date sent, or if such date is on a weekend or federal or state holiday,
then on the next date which is not Saturday, Sunday or such holiday. Each
party hereto shall have the right to change its address for all purposes of
this Article by notifying the other party hereto thereof in writing.
15. DEFAULT:
If Infinity fails to comply with any of the provisions of this Agreement
(excluding the drilling obligations described in Article 1), Xxxx shall notify
Infinity. Infinity shall have thirty (30) days to rectify the noncompliance.
If Infinity does not rectify the noncompliance, Xxxx, at its option, may
terminate this Agreement; however, Xxxx shall also have the option of
enforcing that portion of this Agreement relating to the area of mutual
interest and the right of access to information. By terminating this
Agreement Xxxx shall not waive, or otherwise be precluded from exercising, any
other rights or remedies, at law or in equity, which it may have for the
breach of the contract by Infinity's failure to perform the contract in whole
or in part.
16. CONFIDENTIALITY:
It is understood by the parties that the terms of this Agreement and all
drilling, completion, geologic, geophysical, production and other technical
information concerning the xxxxx drilled under this Agreement shall be held
tight, and shall be kept confidential unless and until disclosed by or
otherwise made available through the Wyoming Oil and Gas Commission or the
Wyoming BLM; provided, however, that each party may disclose such information
on a confidential basis to its professional advisors, lenders and financial
institutions.
17. ACQUISITIONS:
17.1 Overriding Royalty Acquisitions
Xxxx shall assist in efforts of Infinity to jointly reduce existing
overriding royalty burdens upon the Lease Acreage. Should Infinity and Xxxx
be successful in such reduction efforts, then any such overriding royalty
shall be divided as follows:
So long as the net revenue interest of a Lease being delivered to
Infinity, insofar as through the Objective Formation, after subtracting the
Overriding Royalty reservation by Xxxx, as provided above, is equal to or less
than 80.00%, all overriding royalty acquisitions from that Lease shall be
owned by Infinity.
11
At such time that the net revenue interest of a Lease being
delivered to Infinity, insofar as through the Objective Formation, after
subtracting the Overriding Royalty reservation by Xxxx, as provided above,
becomes greater than 80.00%, then those overriding royalty interests acquired
over and above an 80.00% net revenue interest shall be divided on a 70% to
Infinity, 30% to Xxxx basis.
Should any overriding royalty acquisition by Xxxx and Infinity in
the Lease Acreage include any depths below the Objective Formations, as
defined herein, the acquisition shall be split up 70% to Xxxx and 30% to
Infinity.
In the event this Agreement is ratified and accepted in its full
terms by other operating rights/working interest owners in the Lease Acreage
(third party (s)), Xxxx and said third party (s) shall split the assigned
overriding royalty, discussed in this Article above, proportionate to the
operating rights/working interest owners leasehold share in the assigned Lease
existing as of the date of the overriding royalty acquisition.
17.2 Operating Rights/Working Interest Acquisitions
The parties shall create an Area of Mutual Interest covering the
following lands only insofar as the Objective Formations:
The Riley Ridge Unit and lands presently owned by Xxxx lying within
Townships 29 and 30 North, Ranges 114 and 115 West, Sublette County, Wyoming,
described in Exhibits A and B attached.
("AMI"). During the term of the AMI if any party hereto ("Acquiring Party")
acquires any operating rights interests, record title interests, working
interests and/or fee mineral interests ("Mineral Interest") to the Objective
Formations, the Acquiring Party shall, within 30 days after the acquisition,
promptly advise each of the parties hereto ("Offeree") of such acquisition.
In such event, each Offeree shall have the right to acquire the Mineral
Interest in accordance with the terms of this Agreement in the following
percentages:
Infinity - 70%
Xxxx - 30%
----
100%
Provided, however, if the Mineral Interest covers any portion of the AMI lying
below the Objective Formations, then Xxxx shall have a preferential right to
acquire 100% of that portion of the interest within the Lease Acreage lying
below the Objective Formations. Subsequent to the effective date of this
Agreement, should Xxxx acquire an interest in the Leases or Lands within the
AMI, which includes interests both within and below the Objective Formations,
then the parties shall, for the purpose of assessing proportionate costs of
acquisition, deem the Objective Formations to be equal in value to depths
below the Objective Formation, unless specified otherwise by the seller.
17.3 Notice of Acquisition
Upon acquiring a Mineral Interest the Acquiring Party shall, in writing,
advise the Offeree of such acquisition within 30 days after the acquisition.
The notice shall include a copy of all instruments of acquisition including,
but not limited to, copies of the leases, assignments, sub-leases, farmouts or
12
other contracts affecting the Mineral Interest. The Acquiring Party shall
also enclose an itemized statement of the actual costs and expenses incurred
by the Acquiring Party in acquiring such Mineral Interest, excluding, however,
costs and expenses of its own personnel ("Acquisition Costs"). Each Offeree
shall have a period of 30 days after receipt of the notice within which to
furnish the acquiring party written notice of its election to acquire along
with payment for its proportionate share of the Acquisition Costs for the
offered Mineral Interest. In the event a well is being drilled for production
of oil and gas within the AMI or a location outside the AMI the results of
which could be reasonably expected to materially affect the value of the
offered Mineral Interest, each Offeree shall have a period of 48 hours after
receipt of the notice (exclusive of Saturdays, Sundays and Legal Holidays)
within which to acquire its proportionate interest in the Mineral Interest so
offered provided, however, the 48 hour election period shall not apply unless
the Acquiring Party furnishes notice to the Offeree within 2 full business
days after the date on which the Acquiring Party acquires the Mineral Interest
so offered. In addition thereto, the Acquiring Party shall also:
(a) Furnish the Offeree with the approximate location of the well
then being drilled and the name of the operator or drilling contractor
drilling the well; and
(b) Specifically advise the Offeree that the Offeree shall have a
period of 48 hours (exclusive of Saturdays, Sundays and Legal Holidays) within
which to elect to acquire an interest in the offered Mineral Interest.
If the Acquiring Party shall not have received actual written notice of
election of Offeree to acquire its proportionate interest within the 30 day or
48 hour period, whichever is applicable, it shall be conclusively presumed
that such Offeree has elected not to acquire its interest in the Mineral
Interest. Upon payment by the Offeree, Acquiring Party shall execute and
deliver an appropriate assignment to such Offeree. Any lease jointly acquired
under the AMI shall become subject to the Unit Operating Agreement.
17.4 Mergers
The provisions of this AMI shall not apply to acquisition as a result of
merger, consolidation, reorganization or acquisitions from a parent,
subsidiary or affiliated corporation. Neither shall it apply to transfers
between partners in a partnership or transfers between the parties to this
Agreement.
17.5 Term.
The AMI shall be effective for a term of three years from the effective
date of this Agreement; however, in the event Infinity fails to Drill and
Complete the Pilot Program in accordance with the terms of this Agreement then
the Area of Mutual Interest shall terminate simultaneous with this Agreement.
18. LIABILITY OF PARTIES:
The liability of the parties shall be several, not joint or collective.
Each party shall be responsible only for its obligations as provided in this
Agreement and shall be liable only for its proportionate share of the costs of
performing its obligations under this Agreement. It is not the intention of
the parties to create or render the parties liable as partners of a mining
partnership or other partnership or association.
13
19. TERM OF AGREEMENT
This Agreement shall remain in effect for so long as Infinity owns rights
or interests within the Leased Acreage pursuant to this agreement.
20. GOVERNING LAW; VENUE:
This Agreement and the legal relations between the parties shall be
governed by and construed in accordance with the laws of the State of Wyoming
without regard to principles of conflicts of laws otherwise applicable to such
determinations.. In the event any dispute arises with respect to this
Agreement, the parties hereby consent to jurisdiction and litigation of such
disputes in the State of Wyoming.
21. MEMORANDUM
A memorandum of this Agreement shall be executed by the parties and
recorded by Infinity in the records of Sublette County, Wyoming.
22. COUNTERPARTS AND ASSIGNMENT
This Agreement may be executed in multiple 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. All or any part of this agreement may be assigned to a
third party subject to prior written approval by Xxxx, which shall not be
unreasonably withheld.
23. EXHIBITS
The following Exhibits are attached hereto and incorporated by reference:
Exhibit A Description of Leases
Exhibit B Description of Lands
Exhibit C Unit Operating Agreement
Exhibit D Assignment
IN WITNESS WHEREOF, the parties hereto have executed this 31st day of
August, 1999.
INFINITY OIL & GAS, INC.
Attest: /s/ Xxx Button By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Vice-President
XXXX OIL PROPERTIES, INC.
Attest: /s/ Xxxxx X. Xxxx, By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx, Asst. Xxxxx X. Xxxx
Secretary President
14
EXHIBIT "A"
Description of Leases
Page 1 of 2
Attached to and made part of that Participation Agreement dated August 31,
1999 by and between Xxxx Oil Properties and Infinity Oil & Gas, Inc.
LEASES LYING WITHIN THE RILEY RIDGE UNIT
Lease No. Lease Date Lands within Lease Acres
W-36438 10/1/72 Township 30 North, Range 114 West 480.00
Section 33: S/2N/2, S/2
W-36438 10/1/72 Township 30 North, Range 114 West 80.00
Section 34: W/2SW/4
W-38887 (A) 4/1/73 Township 29 North, Range 114 West 480.00
Section 4: S/2NE/4, NE/4SW/4,
S/2SW/4, SE/4
Section 5: NW/4SW/4, S/2SW/4
W-38887 (B) 4/1/73 Township 29 North, Range 114 West 520.90
Section 4: Xxx 0, XX/0XX/0, XX/0XX/0
Section 5: Xxxx 0-0, X/0X/0,
XX/0XX/0, XX/0
X-00000 4/1/75 Township 29 North, Range 114 West 365.92
Section 3: Xxx 0, X/0XX/0, XX/0
Section 4: Xxxx 0-0, XX/0XX/0
X-00000 4/1/75 Township 29 North, Range 114 West 640.00
Section 8: All
W-49635 4/1/75 Township 29 North, Range 114 West 560.00
Section 9: X/0X/0, X/0XX/0, XX/0XX/0
Section 15: XX/0, X/0XX/0, XX/0XX/0
W-52404 12/1/75 Township 29 North, Range 115 West 640.00
Section 12: All
W-52405 2/1/75 Township 29 North, Range 115 West 640.00
Section 13: All
W-56739 12/1/76 Township 30 North, Range 114 West 320.00
Section 32: SE/4NE/4, NE/4SW/4, SE/4
Section 32: S/2SW/4
W-59398 8/1/77 Township 29 North, Range 114 West 160.00
Section 18: NE/4
W-59398 8/1/77 Township 29 North, Range 114 West 640.00
Section 20: All
W-60620 4/1/76 Township 29 North, Range 114 West 320.00
Section 17: S/2
W-60620 4/1/76 Township 29 North, Range 114 West 320.00
Section 17: N/2
W-60620 4/1/76 Township 29 North, Range 114 West 40.00
Section 9: SE/4SE/4
W-60620 4/1/76 Township 29 North, Range 114 West 779.12
Section 5: Xxx 0
Xxxxxxx 0: Xxxx 0, 0, X/0XX/0, SE/4
Section 7: E/2
Section 18: SE/4
W-60621 4/1/76 Township 29 North, Range 114 West 160.00
Section 21: X/0XX/0, XX/0XX/0, XX/0XX/0
W-62803 11/1/78 Township 29 North, Range 114 West 754.89
Section 6: Xxxx 0, 0, XX/0XX/0, X/0XX/0
Section 7: Xxxx 0-0, X/0X/0
Xxxxxxx 00: Xxxx 0-0, X/0X/0
W-67196 4/1/79 Township 29 North, Range 115 West 120.00
Section 1: S/2SE/4, NE/4SE/4
End of Exhibit "A" page 1 of 2
EXHIBIT "A"
Description of Leases
Page 2 of 2
Attached to and made part of that Participation Agreement dated August 31,
1999 by and between Xxxx Oil Properties and Infinity Oil & Gas, Inc.
LEASES LYING WITHIN THE RILEY RIDGE UNIT, cont.
Lease No. Lease Date Lands within Lease Acres
W-69874 1/1/80 Township 30 North, Range 114 West 40.00
Section 31: S/E4SE/4
W-78475 6/1/74 Township 29 North, Range 114 West 160.00
Section 10: SW/4
W-78475 6/1/74 Township 29 North, Range 114 West 560.00
Section 10: NW/4, W/2NE/4, SE/4NE/4, SE/4
Section 15: N/2NE/4, SW/4NE/4
W-78476 3/1/75 Township 29 North, Range 114 West 320.00
Section 9: N/2
WY-76-0342 5/2/76 Township 29 North, Range 114 West 640.00
State of Wyoming Section 16: All
LEASES LYING OUTSIDE RILEY RIDGE UNIT
Lease No. Lease Date Lands within Lease Acres
W-36438 10/1/72 Township 30 North, Range 114 West 160.00
Section 33: N/2N/2
W-36438 10/1/72 Township 30 North, Range 114 West 320.00
Section 34: X/0XX/0, XX/0XX/0, XX/0XX/0
Section 34: W/2SE/4, E/2SW/4
W-49633 4/1/75 Township 29 North, Range 114 West 157.14
Section 3: Xxxx 0, 0, 0, X/0XX/0
X-00000 4/1/75 Township 29 North, Range 114 West 40.00
Section 15: SE/4SW/4
W-54161 4/1/76 Township 29 North, Range 114 West 320.00
Section 19: E/2
W-54162 4/1/76 Township 29 North, Range 114 West 160.00
Section 29: NE/4
W-60621 4/1/76 Township 29 North, Range 114 West 1120.00
Section 21: XX/0XX/0, X/0XX/0, NE/4NE/4
Section 21: S/2
Section 28: All
W-62803 11/1/78 Township 29 North, Range 114 West 680.25
Section 6: Xxxx 0-0
Xxxxxxx 00: XX/0XX/0, X/0XX/0, X/0, XX/0
W-67196 4/1/79 Township 29 North, Range 115 West 1640.00
Section 1: NW/4SE/4, N/2, SW/4
Section 2: All
Section 11: E/2, E/2W/2
W-78475 6/1/74 Township 29 North, Range 114 West 240.00
Section 10: NE/4NE/4
Section 15: SE/4NE/4, SE/4
W-80232 4/1/79 Township 29 North, Range 115 West 560.00
Section 14: XX/0, X/0XX/0, X/0
XXX-000000 00/0/00 Xxxxxxxx 00 Xxxxx, Xxxxx 114 West 641.68
Section 31: Xxxx 0-0, X/0X/0
Xxxxxxx 00: X/0X/0, XX/0XX/0, X/0XX/0
Section 32: NW/4SW/4
End of Exhibit "A" page 2 of 2
