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EXHIBIT 10.13
AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Amendment to Purchase and Sale Agreement ("Amendment") is made and
entered into this 26th day of May, 1999, by and between Shell Western E & P Inc.
and Shell Onshore Ventures Inc. ("SELLER") and Encore Operating, L.P.
("PURCHASER"). SELLER and PURCHASER may be referred to herein collectively as
the "Parties".
WITNESSETH:
WHEREAS, SELLER and PURCHASER are parties to that certain Purchase and
Sale Agreement dated March 12, 1999, providing for the sale to PURCHASER of
SELLER's interests in the Williston Basin (Cedar Creek Anticline) in Montana and
North Dakota (the "PSA"), such interests being more fully described in Exhibit A
to the PSA; and
WHEREAS, pursuant to Section 9 of the PSA, PURCHASER has conducted a
due diligence review of the Property and has provided notice to SELLER of
certain conditions identified with respect to the PROPERTY in its Preliminary
Due Diligence Report (Items not in Data Room) dated and presented to SELLER on
April 28, 1999; and
WHEREAS, the Parties desire to fully and finally settle and resolve the
issues raised by PURCHASER with respect to the PROPERTY and to amend the PSA as
provided herein;
NOW THEREFORE, in consideration of the mutual promises set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto agree as follows:
A. Definitions.
Capitalized terms used in this Amendment, which are not defined herein,
shall have the meaning ascribed thereto in the PSA.
B. Settlement, Release and Amendment.
In full and complete settlement, satisfaction and release of all
claims, liability and damages of any nature, whether contract, tort or
statutory, known or unknown, present or future (AND EVEN THOUGH SUCH CLAIM,
LIABILITY OR DAMAGE MAY HAVE BEEN CONTRIBUTED TO OR CAUSED BY THE NEGLIGENCE (OF
ANY CHARACTER) OF FAULT, OR THE STRICT OR STATUTORY LIABILITY OF SELLER OR ANY
SELLER INDEMNIFIED PARTY) which PURCHASER, its successors or assigns, or any
PURCHASER Indemnified Party may have against SELLER or any SELLER Indemnified
Party arising out of or related to the PROPERTY, or the sale thereof, save and
except for SELLER's obligations under sections 2, 5, 6, 7, 15, 18, 19, 20 and 23
and subsections 11(c), 21(c), 22(c) and (e), and 29(f), (h), (i), (j), (o) and
(p) of the PSA, the Parties agree as follows:
1. Section 3 of the PSA is amended to change the Purchase Price to ONE
HUNDRED SEVENTY-TWO MILLION DOLLARS ($172,000,000.00).
2. Section 4(b) of the PSA is amended to delete the parenthetical
phrase "(10% of the Purchase Price)" from line 10 on page 5.
3. Subsection 9(c) of the PSA is deleted in its entirety and replaced
with the following:
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(c) Review Results.
As of the date of this Amendment, PURCHASER has completed its Pre-
Acquisition Review and has examined the PROPERTY as fully as desired.
EXCEPT FOR AND WITHOUT LIMITING SELLER'S INDEMNIFICATION OBLIGATIONS
SPECIFIED IN SUBSECTIONS 22(C) AND (E) BELOW, PURCHASER HEREBY AGREES TO
ACQUIRE THE PROPERTY "WHERE IS" AND "AS IS" WITH NO RIGHT TO RECOVER
FROM SELLER FOR ANY LIABILITIES, COSTS OR EXPENSES RELATED TO THE PROPERTY
(INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL CONDITIONS AND DAMAGES TO
NATURAL RESOURCES) AND PURCHASER HEREBY FINALLY AND IRREVOCABLY WAIVES AND
RELEASES SELLER FROM, AND AGREES TO DEFEND, INDEMNIFY AND HOLD SELLER, ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES
HARMLESS AGAINST ALL LIABILITIES,
DAMAGES, COSTS OR EXPENSES OF ANY NATURE ARISING OUT OF RELATED TO OR IN
CONNECTION WITH THE PROPERTY (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL
CONDITIONS, CERCLA LIABILITY AND DAMAGES TO NATURAL RESOURCES), WHETHER
CONTRACT, TORT OR STATUTORY, REGARDLESS OF THE NEGLIGENCE (OF ANY
CHARACTER, WHETHER SOLE, GROSS, JOINT, CONCURRENT, CONTRIBUTORY OR
OTHERWISE), FAULT OR STRICT (STATUTORY) LIABILITY OF SELLER, WHETHER KNOWN
OR UNKNOWN, PRESENT OR FUTURE.
4. Section 10 of the PSA is amended by deleting the section in its
entirety and replacing it with "Removed".
5. Subsection 11(b)(iv) of the PSA is amended by (1) changing
"SUB-SECTIONS 22(c), (d) AND (e) BELOW "in lines 19 and 20 of page 17 to
"SUB-SECTIONS 22 (c) AND (e) BELOW"; and (2) deleting "BUT EXCLUDING
MATTERS INCLUDED IN PURCHASER's NOTICE AS PERMITTED UNDER SUBSECTION
9(c)(1) WHICH ARE RESOLVED IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION
9(c)" from lines 13, 14 and 15 of page 18.
6. Subsection 13(c) of the PSA is amended by deleting ", (d)" from
line 6 of page 23.
7. Subsection 14 (a) of the PSA is amended by deleting ", (d)" from
line 11 of page 24.
8. A new subsection 14(d) is added to the PSA to read as follows:
(d) With respect to Article 14, and except for and without
limiting SELLER's indemnification obligations in subsection 22(e)
below, PURCHASER HEREBY WAIVES ANY TITLE DEFECT, KNOWN OR UNKNOWN,
RELATING TO THE PROPERTY; provided, however, (a) SELLER will, prior
to Closing: (i) obtain and file in the records of Fallon County,
Montana, an assignment from Mobil Oil Corporation to Seller
covering a 66.67% interest in the properties covered by an
operating agreement dated January 1, 1967, between Mobil and
Northern Pacific Railway Company, recorded at Book
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66M, page 457, and (ii) in regard to Xxxxxx Unit Tract Nos. 48 and
49, file with, and request the approval of, the Montana State Board
of Land Commissioners for (A) that certain Operating Agreement
dated April 10, 1951, recorded in Book 32M, page 143, among
Montana-Dakota Utilities Co., Fidelity Gas Company and Shell Oil
Company, and (B) the subsequent assignment of such operating rights
from Shell Oil Company to Shell Western E&P Inc.
9. Subsection 21 (b) of the PSA is amended by deleting ", (d)" from
line 19 of page 38.
10. Subsection 22(b) of the PSA is amended by deleting "except
those ENVIRONMENTAL CLAIMS OR ENVIRONMENTAL LIABILITY indemnified by SELLER
under subsection 22(d) hereof from lines 12, 13, and 14 of page 41.
11. Subsection 22(c) of the PSA is amended by changing "subsections
22(d) and (e)" to "subsection 22 (e)" on line 10 of page 42; and (2) by
adding the words "insofar and only insofar as such Third Party Claim is for
personal injury, occupational disease or death" after the phrase "Third
Party Claim" on line 15 of page 42.
12. Subsection 22(d) of the PSA is amended by deleting the
subsection in its entirety and replacing it with "Removed".
13. Subsection 22 (f) of the PSA is amended by (1) deleting "(d)"
from line 12 of page 45, and (2) by changing "subsections 22 (c) and (d)"
on lines 13 and 14 of page 45 to read "subsection 22(c)".
14. Subsection 22(f)(4) is amended to read as follows: "The
combined financial obligations of both SELLERS under subsection 22(c) shall
be limited to and shall never exceed, in the aggregate, $44,194,444.00;".
C. PSA
Except as expressly set forth herein, the terms and conditions
of the PSA are unaffected and shall remain in full force and effect as written.
IN WITNESS WHEREOF, this Amendment is executed as of the date
first above written.
SHELL WESTERN E&P INC.
By: /s/
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Attorney-in-Fact
SHELL ONSHORE VENTURES INC.
By: /s/
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Attorney-in-Fact
ENCORE OPERATING, L. P.
By: EAP Operating Inc.
General Partner
By: /s/ I. XXX XXXXXXX
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I. Xxx Xxxxxxx
Chief Executive Officer
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