EXHIBIT 10.30(b)
AMENDED OIL AND GAS EXPLORATION AGREEMENT
THIS AMENDED AGREEMENT, made and entered into by and between the BLACKFEET
TRIBAL BUSINESS COUNCIL OF THE BLACKFEET INDIAN TRIBE OF THE BLACKFEET INDIAN
RESERVATION, X.X. Xxx 000, Xxxxxxxx, XX 00000, hereinafter referred to as the
"BLACKFEET TRIBE", and XXXXXX EXPLORATION COMPANY, a Delaware Corporation, 000
Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000, hereinafter referred to as "MEXP".
RECITALS
1. On the 19/th/ day of February, 1999 the parties entered into an OIL
AND GAS EXPLORATION AGREEMENT pursuant to the terms of 25 U.S.C. Sec.
2102.
2. That Agreement was subsequently approved by the Bureau of Indian
Affairs on behalf of the Department of the Interior on the 26/th/ day
of February, 1999.
3. Pursuant to the February 19, 1999, OIL AND GAS EXPLORATION AGREEMENT,
MEXP agreed to pay to the Tribe, the sum of TWO MILLION FIFTY THOUSAND
DOLLARS ($2,050,000.00) as consideration for the exploration and
development rights represented by the Agreement.
4. Said consideration was to be in lieu of and not in addition to bonus
and/or advance delayed rental payments with respect to the lands
subject to the Agreement.
5. Prior to the time MEXP commenced its drilling operations, a dispute
arose regarding an MEXP request for an extension to commence the
drilling program envisioned by the Agreement.
6. The Parties were unable to resolve the dispute, and both the Blackfeet
Tribe and the Indian Bureau of Indian Affairs on behalf of the
Department of the Interior moved to cancel the Agreement.
7. MEXP appealed the cancellation through the Interior Board of Indian
Appeals and filed a collateral action seeking enforcement of the
Arbitration clause of the Agreement in the Federal District Court of
Montana.
8. The Interior Board of Indian Appeals subsequently reversed the Bureau
of Indian Affairs' termination of the Agreement and further ruled that
MEXP was entitled to enforcement of the Arbitration clause of the
Agreement.
9. In order to avoid further delay and to avoid the uncertainty and costs
of further pursuing the dispute (including arbitration and
litigation), and to place the parties on a footing that will enable
them to pursue a productive business relationship, the Parties have
entered into this AMENDED OIL AND GAS EXPLORATION AGREEMENT.
10. The Parties expressly agree and acknowledge that the intent of this
AMENDED OIL AND GAS EXPLORATION AGREEMENT ("this Agreement") is that
it is an amendment to and extension of the February 19, 1999, OIL AND
GAS EXPLORATION AGREEMENT, Contract Number: IMDA 99 14-20-0251-7498,
and it is intended to fully and finally resolve the dispute which
arose under that Agreement, to allow the Parties to move forward in
good faith effort to complete the original commitments which were
bargained for by both Parties hereto.
WITNESSETH:
WHEREAS, the lands set forth and described on Exhibit "A", attached hereto
and by this reference incorporated herein (the "Subject Lands"), together with
the oil and gas mineral estate lying thereunder, are held by the United States
of America, Department of the Interior, Bureau of Indian Affairs, as Trustee for
the benefit of the Blackfeet Tribe of Indians; and
WHEREAS, the Blackfeet Tribe represents that it has the authority, pursuant
to the "Indian Mineral Development Act of 1982", to enter into this Agreement
and commit the Subject Lands to the terms, covenants and conditions hereof; and
WHEREAS, the Blackfeet Tribe agrees that MEXP may acquire an interest in
and to the Subject Lands, and in and to the oil and gas mineral estate lying
thereunder and oil, liquid hydrocarbons, all gases and their respective
constituent products, including but not limited to oil, gas, and hydrocarbons
from coal, shale, or other such formations or strata, produced therefrom, under
and pursuant to the terms, covenants and conditions set forth hereafter; and
NOW, THEREFORE, in consideration of the terms, covenants and conditions
hereinafter set forth, to be kept and performed by and between the parties
hereto, it is agreed as follows:
1. LANDS. The lands and the oil and gas mineral estate lying thereunder to
be subjected to the terms, covenants and conditions of the Oil and Gas
Exploration and Development Agreement are Blackfeet Tribal oil and gas mineral
lands lying within the boundaries of the Blackfeet Indian Reservation not
currently productive of oil and/or gas or other hydrocarbon substances and not
currently subjected or committed to existing oil and gas leases or any other
agreement or arrangement which would prelude MEXP from obtaining valid interests
therein from the Blackfeet Tribe pursuant to this Agreement. It is the intent of
this Agreement that the lands to be subjected to the terms, covenants and
conditions hereof shall be all unleased Blackfeet Indian Tribal lands and
appurtenant oil and gas mineral rights on the Blackfeet Indian Reservation set
out and described on Exhibit "A" attached hereto. Any reference herein to the
Subject Lands is likewise a reference to the oil and gas mineral estate of
the Blackfeet Tribe lying thereunder and appurtenant.
2. EFFECTIVE DATE. This Agreement shall be effective on the date of
approval ("EFFECTIVE DATE") thereof by the Secretary of the Department of the
Interior or his duly recognized agent or representative (the "Secretary"). Upon
receipt of notice of such approval MEXP shall commence the exercise of its
rights granted herein and fulfillment of its duties and obligations likewise
provided for in this Agreement.
Upon the full and complete execution of this Agreement by the parties
hereto, the Blackfeet Tribe shall forthwith submit this Agreement to the Bureau
of Indian Affairs and thereafter shall use its best efforts in securing approval
thereof by the Secretary.
3. EXCLUSIVELY. The rights granted herein by the Blackfeet Tribe to MEXP
are exclusive to MEXP and therefore for so long as this Agreement and any leases
issued pursuant hereto, are in full force and effect the Blackfeet Tribe shall
not commit the Subject Lands, or the oil and gas mineral rights lying
thereunder, to the terms, covenants and conditions of any oil and gas lease(s)
or any other agreement or arrangement which would be adverse to the rights
granted to MEXP herein.
4. OWNERSHIP. The Blackfeet Tribe represents that, according to the records
and files of the Blackfeet Indian Agency, Browning, Montana, the Subject Lands
are not now subject to any existing oil and gas lease(s) or any other agreement
or arrangement which would preclude MEXP from exercising any of its rights
granted herein or performing any of its duties and obligations likewise set
forth herein. Notwithstanding, MEXP shall not rely on said representation and
MEXP has the duty and obligation to verify ownership of the oil and gas mineral
estate underlying the Subject Lands. The Blackfeet Tribe agrees to cooperate in
making land records and files of Tribe and Bureau of Indian Affairs to MEXP.
5. CONSIDERATION. The Parties expressly agree and acknowledge that as
consideration for the February 19, 1999, OIL AND GAS EXPLORATION AGREEMENT
Contract Number: IMDA 99 14-20-0251-7498, MEXP paid to the Tribe the sum of ONE
MILLION DOLLARS ($1,000,000.00). Said consideration is expressly acknowledged
and incorporated in to this Agreement.
Pursuant to the February 19, 1999, OIL AND GAS EXPLORATION AGREEMENT, MEXP
was also obligated to pay the Tribe an additional sum of ONE MILLION FIFTY
THOUSAND DOLLARS ($1,050,000.00), which was to be payable on the second and
third anniversary dates of the Agreement in equal installments of $525,000.00
each.
The parties now agree as part of this Agreement that MEXP shall pay ONE
MILLION FIFTY THOUSAND DOLLARS, subject to the following terms:
1. The first payment of FIVE HUNDRED TWENTY-FIVE THOUSAND DOLLARS
($525,000.00) shall be tendered and delivered to the Bureau of Indian
Affairs within five business days after the signing of this Agreement
by the Blackfeet
Tribe and MEXP, and said amount shall be distributed to the Blackfeet
Tribe immediately upon final approval of this Agreement by the
Secretary. In the event this Agreement is not approved, by the
Secretary within one hundred twenty (120) days after execution of this
Agreement by the parties, the Blackfeet Tribe acknowledges that the
funds belong to MEXP and the Tribe will cooperate with MEXP in
obtaining the return of such funds to MEXP; and this Agreement shall
be deemed void and will not effect the rights, obligations and claims
of the parties under the February 19, 1999, OIL AND GAS EXPLORATION
AGREEMENT.
2. MEXP shall have the right, but not the obligation to make a second
payment of FIVE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($525,000.00) to
the Secretary within one hundred twenty (120) days of the Effective
Date of this Agreement. In the event MEXP fails to make said payment
within one hundred twenty (120) days of the Effective Date of this
Agreement, MEXP shall immediately surrender, relinquish and be
divested of any and all rights under this Agreement. This surrender,
relinquishment, and divestiture shall be the Blackfeet Tribe's
exclusive and sole remedy in the event MEXP shall fail to make the
payment provided under this subparagraph. And, in the event of MEXP's
surrender, relinquishment and divestiture of its rights pursuant to
this provision, MEXP shall also be relieved of any and all obligations
it may have arising under or relating in any way to this Agreement.
All payments to the Department provided for immediately above shall be in
the U.S. funds and shall be tendered in the form of cashier's check, bank to
bank wire transfers, or other immediately available funds payable to the
Department.
All monetary payments provided for above shall be in lieu of and not in
addition to bonus and/or advance delay rental payments for the execution,
acknowledgment, issuance and delivery of the oil and gas leases provided for in
Article 6 hereafter. Very specifically, said monetary payments totaling TWO
MILLION FIFTY THOUSAND DOLLARS ($2,050,000.00) represent and include such bonus
and advance delay rental payments for the issuance of the intended oil and gas
lease and MEXP shall not be obligated to pay any additional consideration at the
time of the issuance of any such oil and gas lease provided for herein. The
parties acknowledge and agree that the TWO MILLION FIFTY THOUSAND DOLLARS
($2,050,000.00) payment provided for herein and the below described overriding
royalty represents consideration for the Blackfeet Tribe's execution of this
Agreement and additionally the subsequent issuance of oil and gas lease covering
and pertaining to the Subject Lands. In addition, the parties hereto acknowledge
and agree that during the Exploration Phase of this Agreement, as provided for
hereafter, that with regard to oil and gas leases issued hereunder during said
Exploration Phase, MEXP shall pay no rentals or advance rentals, it being the
purpose and intent hereof that such rentals shall only become a MEXP obligation
following termination of said Exploration Phase inasmuch as said rentals are
included in the collective TWO MILLION FIFTY THOUSAND DOLLARS ($2,050,000.00).
In further consideration of this Agreement, MEXP will assign a
proportionate 2% (two percent) overriding royalty on MEXP's net leaseholds on
all fee oil and gas leases that MEXP
now owns or may hereafter acquire during the term of this Agreement or during
the term of any lease issued pursuant hereto within the boundaries of the
Blackfeet Reservation (as such boundaries are depicted on the map attached as
Exhibit "C"), with such assignment continuing so long as this Agreement or any
Leases issued pursuant hereto remains in full force and effect. Attached hereto
as Exhibit "D" is the form of the Assignment to be used, provided however that
to the extent any term or condition of Exhibit D conflicts with any provision of
this Agreement, then the terms and conditions of this Agreement shall govern.
6. EXPLORATION PHASE/EARNING XXXXX.
A. The Exploration Phase of this Agreement shall be for a term of five
(5) years commencing on the Effective Date. The Five (5) year period
described above is referred to as the "Exploration Phase" in this
Agreement.
B. In each of the five years of the Exploration Phase of this Agreement
(commencing on the Effective Date), MEXP shall commence operations to
drill at least two (2) xxxxx at locations of its choice within and
upon the Subject Lands or on Allottee Lands within the Subject Lands,
to test for the presence of oil, liquid hydrocarbons, all gasses and
their respective constituent products, including but not limited to
oil, gas, and hydrocarbons from coal, shale, or other such formations
or strata, or make the in lieu payments described below. In total, if
MEXP drills all the xxxxx provided for under this Agreement, MEXP will
drill ten (10) xxxxx within the five (5) year period. The anticipated
depth of each well, together with the proposed drilling program, shall
be submitted to the Blackfeet Tribe sufficiently in advance of
commencement of operations to drill and MEXP shall comply with all
rules and regulations administered by the Blackfeet Tribe and/or the
Bureau of Indian Affairs regarding the drilling of said well.
C. Upon completion of each oil and/or gas well, including those
successfully completed and able to produce in paying quantities, shut
in xxxxx, testing xxxxx, and those that may be plugged or abandoned,
MEXP shall have the absolute right, without payment of any other
consideration, to convert ten thousand (10,000) net acres per well of
Blackfeet Tribal mineral acres underlying the Subject Lands to oil and
gas leasehold interests under and pursuant to the terms, covenants and
conditions and in the form of Exhibit "B" attached hereto and by this
reference incorporated herein as if set forth at length in the body of
this Agreement (provided however that to the extent any term or
condition of Exhibit B conflicts with any provision of this Agreement,
then the terms and conditions of this Agreement shall govern). Each
ten thousand (10,000) net oil and gas mineral acres shall be selected
by MEXP from, as best possible but in the reasonable discretion of
MEXP, contiguously located Tribal oil and gas mineral acres subject to
this Agreement.
D. The Blackfeet Tribe and MEXP agree that the Secretary's review and
approval of this Agreement include review and approval of the terms
and conditions of the
form of lease attached as Exhibit "B", including determinations that
the terms of the Exhibit "B" lease are in the best interests of the
Blackfeet Tribe, and that the lease complies with the requirements of
25 C.F.R. Part 225 (2001). The parties acknowledge that certain
environmental reviews as described in 25 X.X.X.xx. 225.24 may be
required at the time of lease issuance, or at the time MEXP plans to
drill xxxxx under those leases.
E. MEXP may exercise its rights to convert acreage into oil and gas
leases as provided in Xxxxxxxxx 0X at any time within the 5 years
Exploration Phase and such rights to convert acreage into oil and gas
leases may be exercised individually. Should MEXP receive an extension
under Article 6N below during the fifth year after the Effective Date,
MEXP shall have up to and including the expiration of extension to
exercise its right to convert acreage into oil and gas leases as
provided in Article 6C.
F. In the event MEXP chooses to exercise its right to convert acreage
under this Agreement into leases, MEXP shall exercise that right by
delivering a written notice to the Blackfeet Tribe of its exercise,
together with the designation of acreage, by reference to public lands
survey, to be leased.
G. Within 30 days of receipt of MEXP's notice under subparagraph F., the
Blackfeet Tribe shall execute the oil and gas leases in the form
attached as Exhibit "B", and submit the executed leases to the
Secretary for such review and approval as may be necessary in light of
the review and approval of the lease form at the time this Agreement
is approved. The Blackfeet Tribe covenants and agrees to use its best
efforts in securing the approval of the Secretary of the oil and gas
leases at that time.
H. It is the purpose and intent hereof, as indicated on Exhibit "B",
attached hereto, that each oil and gas lease acquired by MEXP from the
Blackfeet Tribe pursuant to this Agreement shall be a development
lease and cover and include six hundred forty (640) acres of Blackfeet
Tribal mineral rights, which acreage for inclusion in any such oil and
gas lease may be selected by MEXP from the Subject Lands and can
include Blackfeet Tribal oil and gas mineral rights on an aggregated
basis from as many sections of land necessary to cover and include,
but not exceed, six hundred forty (640) acres. As to each six hundred
forty acres (640) selected for inclusion in any such oil and gas lease
the same shall be covered by and subjected to separate and distinct
oil and gas lease and it is contemplated herein that upon the
conversion of ten thousand (10,000) net acre block of Blackfeet Tribal
mineral rights as provided for above that approximately sixteen (16)
separate and distinct oil and gas leases will be issued therefore,
each such oil and gas lease a separate and distinct legal contract and
each such oil and gas lease and the acreage subject to it to be held
by production or as otherwise specified under the terms and conditions
of the lease. Specifically, production from or attributable to only
one (1) such oil and gas lease will not hold by production an entire
ten thousand
(10,000) net acre block that MEXP may convert to leases under the
terms of this Agreement.
I. In the event MEXP determines not to drill any well contemplated under
this Agreement, MEXP shall notify the Blackfeet Tribe in writing of
that decision, and MEXP may pay the Blackfeet Tribe Fifty Thousand
Dollars ($50,000.00) in lieu of drilling that well ("In Lieu
Payment"). The In Lieu Payment shall be made no later than the end of
the period within which MEXP would have had to commence operations to
drill the well. The decision not to drill shall not be considered a
breach of this Agreement. In the event MEXP makes an In Lieu Payment
as provided under this subparagraph, the payment shall not give rise
to a right to convert acreage into oil and gas leasehold interest
under this Agreement.
J. MEXP shall have the right to drill for shallow gas and/or oil
reserves, and any said xxxxx shall be included in and countable toward
MEXP's drilling commitment set forth in this Article, so long as said
xxxxx are based upon scientific data which in the opinion of MEXP
provides some reasonable expectation that the xxxxx might establish
production in paying quantities of oil and/or gas.
K. Notwithstanding anything to the contrary provided for above in this
Article 6, MEXP shall have the right, at its election, to commence and
compete the drilling operations or make the In Lieu Payment on the ten
(10) obligation xxxxx provided for above in less than five (5) years.
For the sake of clarity and by way of example only, should MEXP elect
to drill five (5) xxxxx upon the Subject Lands and/or upon Allottee
Lands within the Subject Lands, in the first year of the Exploration
Phase, and five (5) xxxxx within and upon the Subject Lands and/or
upon Allottee Lands within the Subject Lands, in the second year of
the, then and in that event the ten (10) well obligation provided for
herein shall have been satisfied in all respects and, MEXP shall then
have the right to convert 100,000 net acres of the Subject Lands and
the oil and gas mineral estate lying thereunder to oil and gas
leasehold interests in the manner provided for herein. Again for the
sake of clarity and by way of example only, should MEXP elect to drill
four (4) xxxxx in the first year of the Exploration Phase, it need not
drill a well in the second year of the Exploration Phase, but shall be
obligated thereafter to drill two (2) xxxxx in the third, fourth and
fifth years of the Exploration Phase. Specifically, the purpose and
intent of this Agreement is for MEXP to begin operations to drill ten
(10) xxxxx (or make In Lieu Payments) within and upon the Subject
Lands and/or Allottee Lands within the Subject Lands within the five
(5) year Exploration Phase of this Agreement.
L. All drilling and other exploration and development activity conducted
by MEXP shall be conducted by MEXP with due diligence, in a
workmanlike manner and in conformity with good industry practice.
M. Upon the release, cancellation or termination of any oil and gas lease
as provided for in Exhibit "B", MEXP shall forthwith tender, deliver
and relinquish to the Blackfeet Tribe, all data and information
regarding any such oil and gas lease and the lands covered thereby,
excepting all materials and data derived or obtained by use of 3D
seismic, which data and information shall thereafter be proprietary to
the Blackfeet Tribe and the sole and exclusive property thereof.
N. MEXP may make request for extension of its annual drilling commitments
hereunder, provided that each extension shall not exceed one (1) year.
MEXP shall not make requests for extensions of time longer than
necessary, and the Tribe shall not unreasonably withhold its consent
for extension. MEXP shall provide an explanation for its request for
extension when the request is submitted, and will not make requests
for extension for financial reasons. MEXP shall pay the Blackfeet
Tribe for any extension of time which is granted pursuant to this
subparagraph. The amount of consideration to the Blackfeet Tribe for
extension of annual drilling commitments (which would include both
xxxxx) shall be determined by multiplying $1.00 per acre per year
times the remaining Subject Lands not yet subject to MEXP's right to
convert to leases at the time of the request for an extension is made
to the Tribe in writing, prorated by the number of months for which
the extension of time is granted.
O. The parties understand that, notwithstanding approval of this
Agreement by the Secretary, future decisions must be made by the
Secretary and that those decisions, including but not limited to,
approval of geophysical exploration permits, applications to drill,
and development and production permits each are decision points at
which environmental compliance will be considered before approval by
the Bureau of Indian Affairs will be granted.
P. In the event MEXP does not timely comply with the drilling or In Lieu
Payment commitments, notwithstanding any obligation to arbitrate any
dispute between the parties in accordance with Paragraph 12 of this
Agreement, the Blackfeet Tribe may request the Secretary to initiate
cancellations proceedings in accordance with 25 C.F.R. ss. 225.36
(2001). In the event this Agreement is cancelled as a result of any
proceedings under this Agreement for failure to meet the drilling or
payment commitments, that cancellation shall not affect any right that
MEXP earned prior to the initiation of cancellation proceedings to
convert acreage into leases, and MEXP may exercise that right in
accordance with the terms of this Agreement even though the Agreement
may otherwise have been terminated.
Q. Overall, it is contemplated and intended that upon the timely and
proper commencement and completion of operations for the drilling of
ten (10) xxxxx within the Exploration Phase of this Agreement, MEXP
shall have earned the absolute right to convert for development one
hundred thousand (100,000) net Blackfeet Tribal oil and gas mineral
acres underlying and/or appurtenant to the Subject Lands to oil and
gas leasehold interests in the manner provided for herein.
In the event the Blackfeet Tribe does not have 100,000 net development
acres available for oil and gas leases within the Subject Land then
MEXP in consultation with the Tribe may select replacement acreage on
the Reservation for leasing.
7. REPORTS AND INFORMATION. The Blackfeet Tribal Business Council at
their sole risk and expense, shall have free access to each well drilled
hereunder and to the Subject Lands, and all data and information on each such
well to be drilled hereunder MEXP shall (i) deliver to the Blackfeet Tribal
Business Council complete daily drilling reports; (ii) give the Blackfeet Tribal
Business Council at lease twenty-four (24) hours prior notice of the time MEXP
intends to commence drilling operations and/or to make drill stems tests; (iii)
further the Blackfeet Tribal Business Council promptly with information as to
the results of all tests; (iv) make all cores taken, and samples of all cutting
and/or fluids encountered, available in MEXP's office, to the Blackfeet Tribal
Business Council upon request. The Blackfeet Tribal Business Council agrees to
keep all information strictly confidential during the term of the Agreement and
the applicable Lease(s).
8. COSTS, EXPENSES AND INDEMNIFICATION.
A. MEXP alone shall bear all costs, risks, liabilities and expense of
drilling, testing and completing and equipping, or plugging and
abandoning of dry, each of the well provided or herein, and the
Blackfeet Tribe and the United States shall not be liable or
responsible for any portion thereof.
B. MEXP shall comply with all applicable laws, order, rules and
regulations affecting drilling and/or production operations hereunder,
whether promulgated by the Blackfeet Tribe, Bureau of Indian Affairs
or any other federal, state or local government agency.
C. MEXP shall indemnify and hold harmless the Blackfeet Tribe and its
employees and agents from and against any and all claims liabilities
for injury to or death of all persons, including, without limitations,
the Blackfeet Tribe's agents and employees, and loss of or damage to
property arising out of, in connection with, or resulting from the
drilling and completion of the aforementioned xxxxx. MEXP shall defend
any and all such claims asserted and suits brought upon such claims
and pay all judgements rendered in such actions, together with all
costs and expenses incidental thereto, but the Blackfeet Tribe shall
have the right, at its option, to participate in the defense of any
such claims or suits without relieving MEXP of any obligations
thereunder.
9. BONDS AND INSURANCE. MEXP shall provide satisfactory bond coverage
regarding the Subject Lands and the operations contemplated herein amounts
sufficient to satisfy the requirements of any regulatory agency, and agrees to
provide statutory and/or adequate limits of Workers Compensation Insurance and
Comprehensive General Liability Insurance at all times while conducting
operations hereunder.
10. NOTICES. Except as otherwise herein provided, all notices and
communications to be given under the terms hereof shall be given in writing by
mail or telegram, postage or charges prepaid, and addressed to the party to whom
such notices are given as follows:
XXXXXX EXPLORATION COMPANY
0000 Xxxxx Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
BLACKFEET TRIBE OF INDIANS
BLACKFEET INDIAN AGENCY
X.X. Xxx 000 Xxxxxxxx, XX 00000
Attn: Secretary-Blackfeet Tribal Business Council
11. EMPLOYMENT AND CONTRACTING PREFERENCE. MEXP shall give full priority to
employ Native Americans living on or near the Blackfeet Reservation for all jobs
for which they are qualified, and in addition shall give preference to Blackfeet
Tribal member contractors and Blackfeet Tribal member owned or operated
companies with regard to services relating to hydrocarbon production and
development. In the event there are no qualified Blackfeet Tribal member
contractors available, MEXP may seek other contractors.
12. GOVERNING LAW, ARBITRATION AND WAIVER OF SOVEREIGN IMMUNITY. This
Agreement shall be interpreted, enforced and construed in conformity with
federal laws, rules and regulations to the extent such laws are applicable, and
to the extent there is an absence of applicable federal law, then the laws of
the State of Montana shall be looked to in interpreting, enforcing and
construing this Agreement. Any controversy arising from or relating in any
manner to this Agreement, to the alleged breach of this Agreement, or to the
subject matter of this Agreement that cannot be resolved between the parties in
the normal course of their negotiations shall be settled by binding arbitration
utilizing a three member arbitration panel. One (1) arbitrator shall be
appointed by each of the parties, and the third arbitrator shall be chosen by
the two (2) party-appointed arbitrators. In the event a party fails to appoint
an arbitrator, the arbitrator appointed by the other party shall hear and decide
the dispute presented. The arbitration shall be governed by the Commercial
Arbitration Rules of the American Arbitration Association's Commercial Dispute
Resolution Procedures, as amended and effective on September 1, 2000. The
majority decision of an arbitration panel (or the arbitrator) shall be binding
upon the parties, and the parties agree that the decision of the arbitration
panel (or arbitrator) may be judicially enforced in the United States District
Court for the District of Montana. In the event
the United States District Court determines that it lacks jurisdiction, either
party may seek enforcement of the arbitration decision in a court of competent
jurisdiction. The Blackfeet Tribe waives its sovereign immunity from suit and
consents to arbitration and judicial enforcement of any arbitration decision.
Either party may seek to compel arbitration hereunder in the United States
District Court for the District of Montana. In the event the United States
District Court for the District of Montana determines that it lacks
jurisdiction, either party may seek to compel arbitration in a court of
competent jurisdiction. With regard to any waiver of such sovereign immunity the
Blackfeet Tribe agrees to pledge, if applicable, only those assets contained in
or subject to the Agreement as to enforcement of any judgment obtained pursuant
to the Agreement. Moreover, the Blackfeet Tribe agrees to waive any requirement
that MEXP must exhaust tribal remedies before invoking this arbitration
provision.
Provided, however, that any party seeking arbitration must do so within
sixty (60) days of the date the controversy arises, unless said time is
otherwise extended by agreement of the parties in writing. For purposes of this
Article, the "date the controversy arises" shall be defined to mean the date a
party delivers to the other party a written notice that a dispute or controversy
exists that specifically references this Article 12 of this Agreement.
13. INGRESS AND EGRESS TO THE SUBJECT LANDS. The Blackfeet Tribe grants to
MEXP and the right to ingress and egress pursuant to this Agreement for the
purpose of drilling, exploring, operating, and developing the Tribal Lands for
oil and/or gas and marketing the same therefrom, together with the right to use
so much of the surface thereof as may be reasonably necessary for said drilling,
exploring, operating, developing and marketing, subject to the obligation of
MEXP to provide reasonable compensation to the Blackfeet Tribe for any and all
damage to or destruction of Surface Lands of the Blackfeet Tribe caused by
MEXP's operations hereunder.
Likewise, the Blackfeet Tribe, subject to all applicable federal and trial
statutes, rules and regulations, grants to MEXP the right of access to, from and
across the Tribal Lands and other Tribal lands for the purpose of building
roads, laying pipelines or gathering systems, buildings, tanks, power stations
and structures on the Tribal Lands, when needed for drilling, exploration,
operating, development and transportation of oil and/or gas produced from the
Tribal Lands, subject to the obligation of MEXP to provide reasonable
compensation to the Blackfeet Tribe for any and all damage to or destruction of
the Surface Lands of the Blackfeet Tribe caused by MEXP's operations thereon.
The Blackfeet Tribe hereby agrees that MEXP shall have the right of ingress
and egress across Blackfeet roads and properties for the purpose of transporting
material and equipment for the drilling of any xxxxx or conducting any seismic
operations on the Tribal Lands, subject to the obligation of MEXP to provide
reasonable compensation of the Blackfeet Tribe for any and all damage to or
destruction of the Surface Lands of the Blackfeet Tribe caused by MEXP's
operations thereon.
14. HISTORICAL, ARCHAEOLOGICAL, RELIGIOUS AND CULTURAL MATTERS. At all
times while conducting operations hereunder MEXP shall not drill on or upon any
area of the Subject Lands of known historical, archaeological, religious or
cultural value to the Blackfeet Tribe and MEXP shall conduct all of its
operations provided for herein in strict accordance with all existing rules and
regulations of both the United States of America and the Blackfeet Tribe and any
and all federal regulatory agencies with regard to such historical,
archaeological, religious and cultural matters. It is the intent hereof that
MEXP shall comply at
all times with the laws, ordinances rules and regulations of the Blackfeet Tribe
and any and all federal regulatory agencies regarding historical,
archaeological, religious and cultural matters having any bearing or effect upon
the Subject Lands and the activities of MEXP contemplated thereon or thereunder
pursuant to this Agreement.
15. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions hereof
shall be deemed to be covenants running with the oil and gas mineral estate
underlying the Subject Lands and as such shall extend to, bind and inure to the
benefit of the parties hereto, their respective successors and assigns.
In addition, MEXP shall not assign this Agreement of any interest herein,
nor sublet any portion of the Subject Lands, except with the prior approval of
the Secretary of the Interior and the Blackfeet Tribe, which approval shall not
be unreasonably withheld. Provided, however, MEXP will have the right to assign
its interest to a wholly owned subsidiary, affiliate or operating entity of MEXP
without aforementioned approvals. Complete copies of all assignments, partial
assignments, operating agreements, designations of operator, farmout agreements,
or reservations or overriding royalty interests shall be furnished to the
Superintendent and the Blackfeet Tribe.
16. ABSTRACT OF AGREEMENT. The parties hereto agree that an Abstract of
this Agreement may be filed of record with the Glacier County Clerk and Recorder
pursuant to Section 00-00-000, MCA.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement by
and between the parties hereto and supersedes all prior agreements of the
parties.
18. CAPTIONS. The captions in this Agreement are for convenience only and
shall neither be considered a part of nor shall they affect the construction or
interpretation of any provision of this Agreement.
19. SEVERABILITY. If any provision of this Agreement is invalid, illegal or
incapable of being enforced under any rule or law, all other terms covenants,
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect.
20. COUNTERPARTS. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one (1) and the same instrument.
21. TERM. Subject to the terms, covenants and conditions set forth on
Exhibit "B" attached hereto, this Agreement shall remain in full force and
effect for so long as MEXP is in full compliance with the terms, covenants and
conditions set forth herein.
22. FORCE MAJEURE. If MEXP is prevented from, or delayed in commencing,
continuing or resuming operations, or complying with its express or implied
obligations hereunder, by circumstances that are not reasonably within MEXP's
control, this Exploration
and Development Agreement shall not terminate or be forfeited and
MEXP shall not be liable in damages so long as such circumstances continue.
These circumstances include, but are not limited to the following: earthquake,
storm, flood or other acts of God, fire, war, rebellion, insurrection, riots,
strikes or failure of carriers to transport or furnish facilities for
transportation, or orders, rules or regulations of any federal, state or
governmental agency, including the Blackfeet Tribe, and delays associated with
completing any required archeological, cultural resource, ecological, and/or
environmental studies, or the like, to obtain the necessary permits and
approvals prior to commencing drilling operation. The time of such delay or
interruption shall not be counted against MEXP, anything in this Agreement to
the contrary provided; provided further that any and all suspended operations
shall be commenced within a reasonable time after the cause or causes of any
such delay no longer exist.
However, the Tribe presumes that MEXP has the financial capability of
meeting all its obligations under this Amended Agreement, and therefore
financial or economic necessity or need on behalf of MEXP shall not be grounds
under this provision for any delay by MEXP in meeting its obligations hereunder.
DATED this 3/rd/ day of June, 2002, but effective for all purposes as of
the date of approval hereof by the Secretary of the Department of the Interior,
or his duly appointed agent or representative.
ATTEST: THE BLACKFEET TRIBE OF THE
BLACKFEET INDIAN RESERVATION
/s/ Xxxxxx Xxxxxx /s/ Xxxx Old Person
---------------------- ------------------- ------------
XXXXXX XXXXXX, Secretary XXXX OLD PERSON, Chairman
STATE OF MONTANA )
: ss
County of Glacier )
On this 3/rd/ day of June, 2002, before, a Notary Public, personally
appeared XXXX OLD PERSON and XXXXXX XXXXXX, Chairman and Secretary of the
Blackfeet Tribal council, respectively, known to me to be the persons who
executed the foregoing Attorney Contract on behalf of the Blackfeet Tribe and
acknowledge to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official
Seal on the day and year first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------- -------
NOTARY PUBLIC, for the State of Montana
(NOTARY SEAL) Residing at Cut Bank
My Commission Expires: Jan. 01, 2008
XXXXXX EXPLORATION COMPANY
By: /s/ Xxxxx X. Xxxxxx
---------------------
Xxxxx X. Xxxxxx
President & CEO
STATE OF MONTANA )
: ss
County of Glacier )
On this 3/rd/ day of June, 2002, before, a Notary Public, personally
appeared XXXXX XXXXXX, known to me to be the President and CEO of Xxxxxx
Exploration Company, a Delaware Corporation, and acknowledge to me that he
executed the foregoing instrument for and on the behalf of said corporation.
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------- -----------
NOTARY PUBLIC, for the State of Montana
(NOTARY SEAL) Residing at Cut Bank
My Commission Expires: Jan. 01, 0000
XXXXXX XXXXXX DEPARTMENT
OF THE INTERIOR
By:
Title:
Approval Date:
