EXHIBIT 10.8
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the ____ day
of September, 1999, between Xxxxxx Offshore Holdings, LLC ("Seller"), with a
place of business at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, and ATP Oil & Gas
Corporation ("Purchaser"), with a place of business at 0000 Xxxx Xxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000.
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, on the terms and conditions set forth in this Agreement,
all of Seller's interests and rights in a certain oil and gas lease, and certain
agreements, contracts, immovable property, movable property, and equipment.
NOW, THEREFORE, for good and valuable consideration and for the mutual
covenants herein contained, Seller and Purchaser agree as follows:
ARTICLE 1. EFFECTIVE TIME
The ("Effective Time") of the sale and purchase provided for in this
Agreement shall be May 1,1999, as of 7:00 AM, C. D. T.
ARTICLE 2. PURCHASE AND SALE
2.01 The Interests. Subject to the terms and conditions of this
Agreement, at Closing (as hereinafter defined) Seller shall sell and Purchaser
shall purchase all of Seller's right, title and interest in and to the following
assets described in Subsections 2.01(a) through 2.01(e) (collectively called the
"Interests"):
(a) The oil and gas lease described in Exhibit "A," attached hereto and
made a part hereof(hereinafter called the "Lease");
(b) The xxxxx, equipment and facilities located on the Lease (collectively
called the "Equipment"), including, but not limited to, pumps, platforms, well
equipment (surface and subsurface), saltwater disposal xxxxx, water xxxxx, lines
and facilities, sulfur recovery facilities, compressors, compressor stations,
dehydration facilities, treating facilities, pipeline gathering lines, flow
lines, and transportation lines, valves, meters, separators, tanks, tank
batteries and other fixtures;
(c) Oil, condensate, natural gas, and natural gas liquids produced after
the Effective Time, attributable to the Lease;
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(d) To the extent transferable and only to the extent that they relate to
the other Interests, all contracts and agreements concerning the other
Interests, including, but not limited to, unit agreements, pooling agreements,
areas of mutual interest, farmout agreements, farmin agreements, saltwater
disposal agreements, water injection agreements, line well injection agreements,
transportation agreements, processing agreements, operating agreements, and gas
balancing agreements; and
(e) To the extent transferable, all easements, rights-of-way, licenses,
authorizations, permits, and similar rights and interests applicable to, or used
in connection with, the Interests.
ARTLCLE 3. SALE PRICE
3.01 Sale Price and Adjusted Sale Price. The sale price (the "Sale
Price") for the Interests shall be SEVENTEEN-MILLION FIVE-HUNDRED-THOUSAND
DOLLARS ($17,500,000.00). The Sale Price as adjusted pursuant to this Article
shall be referred to as the "Adjusted Sale Price."
3.02 Sale Price Adjustments. The Sale Price shall be adjusted as follows:
(a) The Sale Price shall be increased by an amount equal to the costs and
expenses, net of any applicable joint interest xxxxxxxx, refunds or credits that
are (i) attributable to the Interests after the Effective Time, and (ii) paid by
Seller.
(b) The Sale Price shall be decreased by (i) an amount equal to the net
proceeds received by Seller from the sale of hydrocarbons produced from and
after the Effective Time, and (ii) an amount equal to all other proceeds
received by Seller from whatever source derived that relate to the Interests and
are attributable to periods on or after the Effective Time.
(c) Seller shall deliver to Purchaser before the Closing (as defined
hereinafter) a statement in the format attached hereto as Exhibit "B" (the
"Closing Statement") setting forth the adjustments to the Sale Price provided
above.
ARTICLE 4. THE CLOSING
The sale and purchase described in Article 2 shall take place at a closing
(the "Closing") at which the Purchaser shall pay or cause to be paid to Seller
the Adjusted Sale Price and Seller shall deliver the conveyancing instruments
referred to in Article 9 to Purchaser. The Closing shall occur on September __,
1999, at such time and place as the parties may agree upon (the "Closing Date").
ARTLCLE 5. THIRD PARTY RIGHTS AND CONSENTS
There are no consents to transfer or similar restraints on alienability,
other than governmental approvals, burdening the Interests.
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ARTLCLE 6. REPRESENTATIONS
6.01 Exclusivity and Survivability of Representations. The express
representations contained in this Agreement are exclusive and are instead of all
other representations, express, implied, or statutory. The representations
contained in section 6.02 shall survive Closing for a period of one year, but
all other representations shall terminate at Closing.
6.02 Mutual Representations. Each party represents to the other that:
(a) It is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of the State of its
incorporation, and is duly qualified to do business on the Outer Continental
Shelf of the Gulf of Mexico;
(b) It has all authority necessary to enter into this Agreement and to
perform all its obligations hereunder;
(c) Its execution, delivery and performance of this Agreement and the
transactions contemplated hereby will not: (i) violate or conflict with any
provision of its certificate of incorporation, by-laws or other governing
documents; (ii) result in the breach of any term or condition of or constitute a
default or cause the acceleration of any obligation under any agreement or
instrument to which it is a party or by which it is bound; or (iii) violate or
conflict with any applicable judgment, decree, order, permit, law, rule, or
regulation;
(d) This Agreement has been duly executed and delivered on its behalf, and
at the Closing all documents and instruments required hereunder will have been
duly executed and delivered. This Agreement, and all such documents and
instruments shall constitute legal, valid and binding obligations enforceable in
accordance with their respective terms, except to the extent enforceability may
be affected by bankruptcy, reorganization, insolvency or similar laws affecting
creditors' rights generally; and
(e) Neither party has incurred any obligation or liability, contingent or
otherwise, for brokers or finders' fees in connection with this Agreement in
respect of which the other party may have any responsibility.
6.03 Seller's Representations. Seller represents that:
(a) The Interests are free and clear of all liens, mortgages, and other
similar burdens created by Seller;
(b) To Seller's knowledge and belief, it is not in default or breach under
any contract or agreement relating to the Interests;
(c) Seller has timely paid all royalties, rentals and other payments due
under the Lease and the Lease is in full force and effect;
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(d) No imbalance of gas deliveries of any kind exists with regard to the
interest of Seller in the Interests;
(e) The Interests are not subject to any sales contract for oil, gas, or
other hydrocarbons that requires more than thirty (30) days notice to terminate;
(f) There is no lien, claim, demand, suit, action or other proceeding
pending or, to the knowledge of Seller, threatened which could result in
impairment or loss of Seller's title to any part of the Interests or loss in
value thereof; and
(g) Since the Effective Date, there has not been: (i) any incurrence by
Seller of any liabilities or obligations with respect to the Interests other
than A) liabilities or obligations incurred in the ordinary course of business,
or B) capital expenditures totaling $65,000.00 or less; (ii) any sale, lease of
other disposition by Seller affecting the Interests other than sales of
hydrocarbons in the ordinary course of business; (iii) any mortgage or pledge
by Seller of, or grant by Seller of a lien or security interest in, the
Interests; or (iv) any change, damage, destruction or casualty loss affecting
the Interests which, taken as a whole, could have a impact of more than
$25,000.00.
ARTLCLE 7. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
Disclaimer of Warranty. ANY ASSIGNMENT, DEED, LEASE OR OTHER CONVEYANCE
EXECUTED PURSUANT HERETO SHALL BE EXECUTED WITH FULL SUBSTITUTION AND
SUBROGATION OF PURCHASER AS TO ALL CLAIMS SELLER HAS OR MAY HAVE AGAINST ALL
PRECEDING OWNERS OF THE INTERESTS THAT MAY BE ASSIGNABLE. WITHOUT LIMITING THE
FOREGOING, THE TRANSACTION CONTEMPLATED HEREBY SHALL BE WITHOUT ANY WARRANTY OR
REPRESENTATlON OF TITLE, EITHER EXPRESS, IMPLIED, OR STATUTORY, AND WITHOUT ANY
EXPRESS, IMPLIED OR STATUTORY WARRANTY OR REPRESENTATlON AS TO THE CONDITION,
QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM REDHIBITORY
VICES OR DEFECTS, OR MERCHANTABILITY OF ANY OF THE EQUIPMENT (AS DESCRIBED IN
ARTICLE 2.01(b)) OR ITS FITNESS FOR ANY PURPOSE.
ARTICLE 8. CONDITIONS OF CLOSING
Each party's obligation to consummate the transaction provided for herein
is subject to the satisfaction or waiver by the other party of the following
conditions:
8.01 Representations. The representations contained in Article 6 hereof
shall be true and correct in all material respects on the Closing Date as though
made on and as of the Closing Date.
8.02 Performance. Each party shall have performed in all material
respects the obligations, covenants and agreements hereunder to be performed by
it at or prior to the Closing Date.
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8.03 Pending Matters. No suit, action or other proceeding by a third
party or a governmental authority shall be pending that seeks to restrain,
enjoin or otherwise prohibit the consummation of the transactions contemplated
by this Agreement.
ARTICLE 9. TRANSACTIONS ON AND AFTER CLOSING
At the Closing, the following shall occur:
9.01 Assignment and Xxxx of Sale. Seller shall execute, acknowledge and
deliver five (5) originals of an Assignment and Xxxx of Sale substantially in
the form of Exhibit "C" (Record Title Assignment), attached hereto and made a
part hereof, appropriate letters in lieu of transfer orders to be furnished by
Seller, and such other necessary instruments in forms that are mutually
acceptable to the parties in accordance with the obligations outlined in this
Agreement, covering all of the Interests to be sold pursuant hereto.
9.02 Adjusted Sale Price. Purchaser shall deliver the Adjusted Sale Price
to Seller by wire transfer to the account specified by Seller.
9.03 Possession of the Interests. Seller shall (subject to the terms
hereof and the contracts listed or referred to on Exhibit "A") deliver to
Purchaser exclusive possession of the Interests upon the Closing.
9.04 Notice of Sale. Promptly after the Closing, Purchaser shall notify
all operators, non-operators, oil and gas purchasers, transporters and
processors, government agencies and royalty owners that it has purchased the
Interests.
9.05 Records. Seller shall, at Closing or as promptly as reasonably
possible after Closing, but in no event later than fifteen (15) days after
Closing, deliver to Purchaser all records and documents in Seller's possession
or control ("Records") relating to the Interests, including, but not limited to,
land and lease files, division of interest computer printouts, contract files
(as listed or referred to on Exhibit "A"), well files and copies of well logs.
Seller reserves the right to copy and retain all Records relating to the
Interests.
9.06 Records Retention. Purchaser agrees that for a period of three (3)
years after the Closing, Records delivered to Purchaser by Seller shall be
retained by Purchaser. Purchaser shall make such Records available to Seller
and its officers, employees, consultants and representatives upon reasonable
notice and during normal business hours.
ARTlCLE 10. ALLOCATION OF PRODUCTION AND PROCEEDS
All production of hydrocarbons from the Interests prior to the Effective
Time, and all proceeds from or
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attributable to the sale of such production, shall be the property of Seller.
All such production on and after the Effective Time, and all proceeds from or
attributable to the sale thereof, shall be the property of Purchaser. Production
shall be allocated to the parties based upon the most reliable measurement
method or allocation calculation information available and mutually acceptable
to the parties. Any amount received by Purchaser after the Effective Time
attributable to the sale of hydrocarbons produced prior to the Effective Time
shall be paid to Seller by Purchaser; and any amount received by Seller after
the Effective Time attributable to the sale of hydrocarbons produced on and
after the Effective Time shall be paid to Purchaser by Seller.
ARTLCLE 11. RESPONSIBILITY FOR PAYMENTS AND OBLIGATLONS
11.01 Abandonment Liabilities. As additional consideration for the sale
of the Interests, Purchaser shall plug and abandon, remove, restore, remediate
and cleanup all xxxxx, pipelines, flowlines, platforms, personal property,
machinery, facilities and equipment included in the Interests and perform all
necessary surface remediation and cleanup and complete all reclamation
associated with the Interests. Purchaser agrees to perform all such plugging,
abandonments, removals, restoration, remediation and cleanup in accordance with
all applicable statutes, governmental orders and regulations and hereby agrees
to defend, release, protect, indemnify and hold Seller harmless from any and all
claims arising from Purchaser's failure to plug and abandon such xxxxx or
perform such removals, restoration, remediation and cleanup.
11.02 Royalty Payments and Operating Costs. Seller shall be responsible
for (i) all lease rentals, shut-in royalties, minimum royalties, payments in
lieu of production, production royalties (including royalties paid in kind),
overriding royalties, production payments and net profits payments, and (ii) all
operating costs, vendor and contractor invoices and other liquidated monetary
obligations of Seller that in each case accrued prior to the Effective Time and
are attributable to the ownership, operation, use or maintenance of the
Interests. Purchaser assumes and shall be responsible for all of the above
described payments and obligations that have accrued or accrue on and after the
Effective Time.
11.03 Joint Billing Audits. Seller shall be responsible for the
settlement of all joint billing audits that relate to the Interests for
accounting periods prior to the Effective Time. Purchaser shall be responsible
for the settlement of all joint billing audits that relate to the Interests for
accounting periods on and after the Effective Time. Any cash received by
Purchaser after the Effective Time attributable to expenses paid by Seller prior
to the Effective Time shall be paid to Seller by Purchaser. Likewise, any cash
received by Seller after the Effective Time attributable to expenses paid by
Purchaser after the Effective Time shall be paid to Purchaser by Seller, except
to the extent previously allocated in the calculation of the Adjusted Sale
Price.
ARTlCLE 12. TAXES
All taxes, including, but not limited to, excise taxes, state severance
taxes, ad valorem taxes, and any other local, state, and federal taxes or
assessments attributable to the Interests or any part thereof prior to the
Effective Time, shall remain Seller's
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responsibility and all deductions, credits and refunds pertaining to the
aforementioned taxes, attributable to the Interests or any period thereof prior
to the Effective Time (no matter when received), belong to Seller. All such
taxes and assessments attributable to the Interests or any part thereof on and
after the Effective Time are Purchaser's responsibility, and all deductions,
credits, and refunds pertaining thereto on and after the Effective Time (no
matter when received) belong to Purchaser.
ARTICLE 13. FINAL ACCOUNTING
In the event, either Seller or Purchaser requests a final settlement
statement subsequent to the Closing, Seller shall issue the final settlement
statement for the Interests conveyed within ninety (90) days after the Closing
or within sixty (60) days of the request, whichever is later. This statement
will net revenues received against royalties, operating expenses, taxes, and
overhead if applicable. Purchaser, after having access to the applicable
accounting records for reasonable audit verification, shall respond with
objections and proposed corrections within sixty (60) days of the issuance of
the final settlement statement. In the event Purchaser does not respond to the
final settlement statement by signing or objecting within sixty (60) days of the
issuance of the final settlement statement, said statement shall be deemed
approved by Purchaser. After approval by both parties, the final settlement
statement for the Interests conveyed will be summarized and a net check will be
issued to the appropriate party within seven (7) days.
ARTICLE 14. INDEMNIFICATIONS
In addition to any other indemnification contained in this Agreement:
(a) Purchaser shall defend, indemnify, save, discharge, release and hold
Seller harmless from claims for personal injury, death or damage to personal
property arising directly or indirectly from or incident to, the use,
occupation, operation, maintenance, condition or abandonment of any of the
Interests on or after the Closing Date. Likewise, Seller shall defend,
indemnify, save, discharge, release and hold Purchaser harmless from claims for
personal injury, death or damage to personal property arising directly or
indirectly from or incident to, Seller's use, occupation, operation,
maintenance, condition or abandonment of the Interests prior to the Closing Date
except as provided in Article 11.01.
(b) Purchaser shall defend, indemnify, save, discharge, release and hold
Seller harmless from claims for damage to the environment, environmental
cleanup, remediation, or environmental compliance, or abandonment of any of the
Interests, including without limitation, contamination of the property or
premises with Naturally Occurring Radioactive Materials (NORM), whether or not
any such claims result from conditions, actions or inactions present or existing
on, or before, or after the Closing Date.
(c) Purchaser shall (i) be responsible for any and all claims arising out
of the production or sale of hydrocarbons from the Interests or the proper
accounting or payment to parties for their interests therein, insofar as such
claims relate to periods of
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time on or after the Effective Time and (ii) defend, indemnify, save, discharge,
release and hold Seller harmless from any and all such claims. These claims
include but are not limited to all valid overriding royalty, royalty or net
profit interest payments. Likewise, Seller shall (i) be responsible for any and
all claims arising out of the production or sale of hydrocarbons from the
Interests or the proper accounting or payment to parties for their interests
therein, insofar as such claims relate to periods of time before the Effective
Time and (ii) defend, indemnify, save, discharge, release and hold Purchaser
harmless from any and all such claims. These claims include but are not limited
to all valid overriding royalty, royalty or net profit interest payments.
ARTICLE 15. FURTHER ASSURANCE
15.01 Performance of Obligations. Seller and Purchaser shall use all
reasonable efforts to do all things necessary, proper or advisable to carry out
all of their respective obligations under this Agreement and to consummate and
make effective the purchase and sale of the Interests pursuant to this
Agreement.
15.02 Further Conveyances and Assumptions. After the Closing Date, Seller
and Purchaser shall execute, acknowledge and deliver all such further
conveyances, transfer orders, notices, assumptions and releases and such other
instruments, and shall take such further actions as may be reasonably necessary
or appropriate to fulfill their respective obligations set forth in this
Agreement.
15.03 Governmental Requirements. Purchaser shall expeditiously satisfy
any requirements of the United States Department of the Interior, Minerals
Management Service (MMS), or any other governmental entity having jurisdiction,
necessary for Purchaser to own and operate the Interests. Purchaser obligates
itself to take any and all action required by the MMS or other regulatory agency
to obtain unconditional approval of the Assignment and Xxxx of Sale from Seller
to Purchaser, including but not limited to, the posting of any and all bonds or
security that may be required by the MMS in excess of its existing lease,
pipeline or area-wide bond.
ARTICLE 16. NOTICES
All notices and consents to be given hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally, sent by
facsimile with receipt acknowledged, three days after being mailed by registered
mail (return receipt requested), or delivered by a commercial courier to the
party at the address set forth below or such other address as any party shall
have designated for itself by ten (10) days' prior notice to the other party.
Seller:
Xxxxxx Offshore Holdings, LLC
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
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Phone: 000-000-0000
Fax: 000-000-0000
Purchaser:
ATP Oil & Gas Corporation
0000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
ARTICLE 17. EXCLUSION AREA
Seller and Purchaser have agreed that certain portions of the Lease will be
excluded from the sale and purchase provided in this Agreement, subject to the
terms and conditions set forth in the remainder of this Article.
17.01 Exclusion Area. For a period of two (2) years from the date of this
Agreement, Purchaser shall not have the right to drill any well, including re-
entry of the OCS-G 9574 JA-1 Well, within the SW/4 NW/4 SE/4, the E/2 NW/4 SE/4,
the NE/4 SE/4, the SE/4 SE/4, the E/2 SW/4 SE/4, and the NW/4 SW/4 SE/4 of the
Lease (hereinafter called the "Exclusion Area").
17.02 New Well. For a period of two (2) years from the date of this
Agreement, Seller (within this Article, the term Seller shall include the
assigns or designees of Seller) shall have the right to propose the drilling of
a new well within the Exclusion Area, or re-entry of only the existing OCS-G
9574 JA-1 Well, (hereinafter called the "New Well").
17.03 Participation and JOA. Operations in the New Well and the Exclusion
Area shall be governed according to the terms of the Joint Operating Agreement
(hereinafter called the "JOA") attached as Exhibit "D." Immediately after
execution of this Agreement, Purchaser and Seller will prepare for execution and
sign the JOA. If, for any reason, Purchaser and Seller do not sign the JOA,
then Exhibit "D" in its present form shall govern for the New Well and all other
joint operations in the Exclusion Area.
17.04 Processing and Handling. In the event that production of
hydrocarbons is obtained within the Exclusion Area as a result of the New Well
or after Seller earns an assignment as provided for in Section 17.05 below, such
production shall be handled and processed by Purchaser under the terms of the
Production Handling Agreement (hereinafter called the "PHA") attached as Exhibit
"E." Immediately after execution of this Agreement, Purchaser and Seller will
prepare for execution and sign the PHA. If, for any reason, Purchaser and
Seller do not sign the PHA, then Exhibit "E" in its present form shall apply for
production from the Exclusion Area.
17.05 Earned Interest. If, within two (2) years of the date of this
Agreement,
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Seller proposes the New Well, and such well is subsequently drilled and logged,
Purchaser will, subject to the non-consent provisions of the JOA, assign a
seventy-five percent (75%) working interest and a sixty-one & 25/100 percent
(61.25%) net revenue interest in the Exclusion Area to Seller, limited to depths
from the seafloor to one-hundred (100) feet below the deepest depth drilled and
logged in the New Well. The assignment of these interests (hereinafter called
the "Earned Interest") shall include all rights and interests in each and every
well drilled in connection with the Earned Interest, including the OCS-G 9574
JA-1 Well if such well is re-entered as part of drilling the New Well, but shall
exclude other facilities and equipment on the lease, including any platforms and
pipelines. The Earned Interest assignment shall be in the form of Exhibit "F."
17.06 Termination of Interest. If Seller does not propose the New Well
within two (2) years of the date of this Agreement then Seller's right to earn
any interest in the Exclusion Area shall terminate.
17.07 Notice of Exclusion Area. In order that third parties will be on
notice of the obligations and duties created by this Article, Purchaser and
Seller will at Closing execute the Memorandum of Option attached as Exhibit "G."
The Memorandum of Option shall be placed of record with the United States
Department, Minerals Management Service, as well as in Iberia and St. Xxxx
Parishes, Louisiana.
17.08 Survival. The provisions of this Article shall survive Closing.
ARTICLE 18. MISCELLANEOUS
18.01 Assumed Contracts. This Agreement is made expressly subject to all
agreements, leases, easements, permits, commingling authorizations, and other
contracts which are of record or which Purchaser is aware of, including but not
limited to, those agreements described on Exhibit "A" (collectively, the
"Assumed Contracts"). Purchaser shall observe and comply with all covenants,
terms, and provisions of the Assumed Contracts.
18.02 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties. No
supplement, amendment, alteration, modification, waiver, or termination of this
Agreement shall be binding unless executed in writing by the parties hereto
after the execution of this Agreement.
18.03 Severability. In the event any covenant, condition, or provision
contained herein is held to be invalid by a court of competent jurisdiction,
such invalidity shall in no way affect any other covenant, condition or
provision contained herein.
18.04 Waiver. A waiver of any of the provisions of this Agreement shall
not constitute a waiver of any other provision hereof, nor shall such waiver
constitute a continuing waiver.
18.05 Governing Law. This Agreement, and all assignments and all
instruments
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of conveyance executed in accordance with this Agreement, shall be governed by
and interpreted in accordance with the laws of the State of Texas, without
reference to conflict of laws principles.
18.06 Dispute Resolution. Any and all disputes, controversies, and
conflicts that arise from or in relation to this Agreement shall, to the extent
possible, be settled amicably by the parties hereto. In the event of a failure
to make amicable settlement of any dispute hereunder, such dispute shall be
finally settled through arbitration, in Houston, Texas, before an arbitration
panel under the Commercial Rules of the American Arbitration Association ("AAA")
in effect as of the commencement of arbitration, except as modified or
supplemented by the rules set forth below. In rendering any decision(s) and/or
award, the arbitration panel shall determine the rights and obligations of the
parties in accordance with the laws of the State of Texas.
Unless the parties agree that the arbitration panel shall be composed of a sole
arbitrator within ten (10) days after commencement of arbitration, the
arbitration panel shall be composed of three (3) arbitrators, appointed as
follows:
A. Each party shall have the right to appoint one (1) arbitrator. The two
(2) party-appointed arbitrators will then together appoint the third arbitrator.
If one of the parties has appointed an arbitrator, and the other party has
failed to appoint the other arbitrator within fourteen (14) days from the
appointment of the first arbitrator, the arbitrator who has been appointed may
act as the sole arbitrator, and the decision(s) and/or award of such arbitrator
will be fully binding on the parties. If the two arbitrators who have been
appointed fail to appoint the third arbitrator within fourteen (14) days from
the appointment of the second arbitrator, the third arbitrator shall be
appointed by AAA upon the petition of either party.
B. In the event the parties agree that the arbitration panel may be
composed of a single arbitrator, such arbitrator shall be appointed by agreement
of the parties. If the parties are unable or fail to agree upon the arbitrator
within twenty (20) days after commencement of arbitration, the arbitrator shall
be appointed by AAA upon the petition of either party.
C. No arbitrator shall be appointed who is not independent of all parties
or who has an interest in the dispute or any previous involvement with the
subject matter of this Agreement.
18.07 Limitation of Liability. Seller and Purchaser covenant and agree
that the recovery by either party of any damages suffered or incurred by it as a
result of any breach by the other party of any provision of this Agreement shall
be limited to the actual damages suffered or incurred by the non-breaching party
and in no event shall the breaching party be liable to the non-breaching party
for any indirect, consequential, exemplary or punitive damages.
18.08 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above set forth.
SELLER: PURCHASER:
XXXXXX OFFSHORE HOLDINGS, LLC ATP OIL & GAS CORPORATION
By: Joint Energy Development Investments By:
Limited Partnership, a Delaware limited _____________________
partnership, its sole member and manager Xxxxxx X. Xxxxxxx
Senior Vice President
By: Enron Capital Management Limited
Partnership, General Partner
By: Enron Capital Corp.
General Partner
By: ___________________
Name: ________________
Title: _________________
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