EXHIBIT 4.49
Dated 8th January 2006
(1) SOUTH ATLANTIC PETROLEUM LIMITED
(2) CNOOC EXPLORATION & PRODUCTION LIMITED
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SALE AND PURCHASE AGREEMENT
- relating to -
90% Contractor interest in a Production
Sharing Contract in respect of NNPC's 50%
interest in OML 000, Xxxxxxx Xxxxxxxx of
Nigeria
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Note:
Certain statements, marked with an asterisk in brackets [*], have been omitted
from this agreement pursuant to a request for confidential treatment pursuant
to Rule 24b-2 under the Securities Exchange Act of 1934, as amended, and the
omitted materials have been filed separately in paper form with the Securities
and Exchange Commission.
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.........................................1
2. SALE AND PURCHASE CONDITIONS...........................................8
3. CONSIDERATION.........................................................10
4. REIMBURSEMENT OF TUPNI/BRASOIL CARRY..................................11
5. INTERIM PERIOD........................................................14
6. COMPLETION............................................................16
7. REPRESENTATIONS, WARRANTIES AND CLAIMS................................18
8. TAXATION..............................................................23
9. INDEMNITIES...........................................................24
10. NOTICES...............................................................25
11. COSTS, EXPENSES AND DELAYED PAYMENT...................................26
12. ANNOUNCEMENTS.........................................................26
13. ASSIGNMENT............................................................27
14. CONFIDENTIALITY.......................................................27
15. TERMINATION...........................................................28
16. VARIATION.............................................................28
17. GENERAL...............................................................28
18. GOVERNING LAW AND ARBITRATION.........................................29
SCHEDULE 1 COMPLETION DOCUMENTS.............................................32
SCHEDULE 2 REPRESENTATIONS AND WARRANTIES...................................48
PART A REPRESENTATIONS AND WARRANTIES OF THE SELLER.........................49
PART B REPRESENTATIONS AND WARRANTIES OF THE PURCHASER......................53
SCHEDULE 3 DATA ROOM DOCUMENTS..............................................55
SCHEDULE 4 ESCROW AGREEMENT.................................................56
SCHEDULE 5 TUPNI STATEMENT OF ADVANCES......................................73
SCHEDULE 6 FORM OF LEGAL OPINION............................................74
SCHEDULE 7 FORM OF ACKNOWLEDGEMENTS.........................................76
THIS AGREEMENT is made on the 8th day of January 2006
BETWEEN
(1) SOUTH ATLANTIC PETROLEUM LIMITED a company established under the laws
of the Federal Republic of Nigeria with its registered office at 11th
& 12th Floor, South Atlantic Petroleum Towers, 0 Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx (hereinafter referred to as "the
Seller"); and
(2) CNOOC EXPLORATION & PRODUCTION LIMITED, a company established under
the laws of the Federal Republic of Nigeria with its registered office
at 00x, Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
(hereinafter called the "Purchaser").
WHEREAS
(A) Effective 23 February 1998 the Seller was granted a 100% interest in
OPL 246 and pursuant to a farm in agreement the Seller assigned a 24%
interest to TUPNI and a 16% interest to Brasoil;
(B) On 1 August 2003, the Seller on behalf of itself, TUPNI and Brasoil
applied for the conversion of part of the area of OPL 246 to an oil
mining lease (as amended by a letter from the Seller to the Department
of Petroleum Resources dated 8 March, 2004) and by a letter dated 24
February 2005 the Ministry of Petroleum Resources approved the
conversion to OML 130;
(C) By a letter dated 5 May 2005 from the Ministry of Petroleum Resources,
the FGN exercised its rights under the Deep Water Block Allocations to
Companies (Back-in-Rights) Regulations 2003 to take a 50%
participating interest in OML 130 by vesting in NNPC a 50%
participating interest, so that the parties to OML 130 and their
participating interests therein are NNPC (50%), TUPNI (24%), Brasoil
(16%) and the Seller (10%);
(D) In respect of the funding and conduct of operations relating to NNPC's
50% interest in OML 130, NNPC has entered into the PSC with the Seller
and TUPNI pursuant to which the Seller has all of the rights and
obligations of the Contractor and TUPNI is designated as operator
under the PSC to carry out Petroleum Operations on behalf of the
Contractor; and
(E) The Seller wishes to sell and assign the Transferred Interest (as
hereinafter defined) and the Purchaser is willing to purchase and
acquire the Transferred Interest from the Seller subject to and upon
the terms hereof.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Except where the context otherwise requires, the following expressions
in this Agreement, its Recitals and Schedules shall have the following
respective meanings:
Exhibit 4.49-1
"Abandonment means, in so far as these relate to the
Liabilities" Transferred Interest, any and all costs,
charges, expenses, liabilities and
obligations incurred in abandoning and/or
decommissioning and/or removing any and all
relevant assets, installations, facilities,
equipment, pipelines, or other property
whether such costs, charges, expenses,
liabilities and obligations arose on, before
or after Completion and whether such costs,
charges, expenses, liabilities and
obligations arise under any treaty,
statutory, common law, or other obligation
and regardless of negligence or breach of
statutory duty on the part of the Seller;
"Acknowledgements" means the documents to be signed by TUPNI
and Brasoil substantially in the form
attached in Schedule 7 to be provided to the
Purchaser at Completion;
"Adjusted means the Reimbursement Amount, as adjusted
Reimbursement Amount" pursuant to the provisions of Clause 4.2(a)
and as otherwise provided in this Agreement;
"Adjustment Amount" shall have the meaning given to it in Clause
3.2;
"Affiliate" means any holding company or subsidiary
company of a Party, or any company which is
a subsidiary company of the holding company
of a Party, and the expression "holding
company" and "subsidiary" shall have the
meanings respectively ascribed thereto by
Section 736 of the Companies Xxx 0000 as
amended by Section 144 of the Companies Xxx
0000;
"Base Rate" means the display rate per annum of the
offered quotation for deposits in US dollars
for a period of one month which appears on
Telerate Page 3750 (or such other page as
the parties may agree) at or about 11.00 am
London time on the Due Date, or if such Due
Date is not a Business Day in London on the
last Business Day in London prior to such
Due Date, provided that, if the debt in
question remains unpaid for longer than a
month from such Due Date, interest thereon
shall be compounded monthly and the said
display rate reset monthly by reference to
such display rate prevailing on the last
Business Day in London prior to the monthly
reset date;
"Brasoil" means Brasoil Oil Services Company Nigeria
Limited, its successors and permitted
assigns;
"Business Day" means a day other than a Saturday or Sunday
or statutory holidays on which banks are or,
as the context may require, were generally
open for all
Exhibit 4.49-2
normal business in Nigeria and London;
"Cash Call" means a cash call as referred to in the
Operating Agreement and the accounting
procedure attached thereto;
"Completion" means the completion of the transfer or
acquisition of the Transferred Interest as
provided for in Clause 6;
"Completion Date" means the date of Completion as determined
in accordance with Clause 6.1;
"Completion Documents" means the documents listed in Schedule 1
substantially in the form attached hereto
that must be executed in order to effect the
transfer to and acquisition by the Purchaser
of the Transferred Interest;
"Consideration" means the Purchase Price as adjusted
pursuant to Clause 3.2 and as otherwise
provided in this Agreement;
"Contractor" has the meaning given to it in the PSC;
"Cost Oil" has the meaning given to it in the PSC;
"Data" means all data and information held by the
Seller (or to which it is entitled) in its
capacity as Contractor under the PSC in
respect of the Transferred Interest
including, without prejudice to the
generality of the foregoing, accounts,
books, contracts, correspondence,
information, data and reports (including
petroleum engineering, reservoir
engineering, drilling, geological,
geophysical and all other kinds of technical
data and reports, maps, samples, well logs
and analyses in whatever form the same are
maintained), but excluding any notes,
memoranda, analyses, reports or equivalent
documents (in whatever form maintained)
prepared by the Seller, its Affiliates,
auditors, advisers and contractors for the
Seller's or its Affiliates' internal
purposes and/or corporate decision making
and/or review procedures;
"Data Room Documents" means the documents relating to the
Transferred Interest listed in Schedule 3
and, where the context so admits, any one or
more of such documents;
"Deposit" means the deposit of Dollars two hundred and
thirty-five million ($235,000,000) payable
into the Escrow Account on the date of this
Agreement;
Exhibit 4.49-3
"Disclosure Letter" means a letter of even date herewith,
together with the attachments thereto,
addressed by the Seller to the Purchaser
disclosing exceptions to the Seller's
Warranties;
"Dollar" or "$" means the lawful currency of the United
States of America;
"Due Date" means the date from which interest is to be
charged in accordance with the terms of this
Agreement;
"Effective Date" means 00.01 hours, Lagos Nigeria time, on 1
July 2005;
"Encumbrances" means all liens, charges, mortgages,
pledges, overriding royalties, net profit
interests, security interests, encumbrances
or third party rights other than those
arising under OML 130, the PSC, the
Operating Agreement, the Production
Co-ordination Agreement and under applicable
legislation;
"Environmental means, in so far as these relate to the
Liabilities" Transferred Interest, all costs, charges,
expenses, liabilities and obligations,
whether arising on, before or after
Completion relating to: (1) cleaning up or
removing debris from and for reinstating any
area of land, foreshore, sea or sea bed,
wherever situated, including without
limitation reinstating any and all forms of
plant and animal life and/or facilities
required to be reinstated in, on, under or
in respect of any such areas; (2) any
pollution of air, water or land whether
within natural or man made structures above
or below ground including radiation, the
cleaning up, repairing and eliminating of
such pollution, radiation or other resulting
toxic or other substances; and (3) the
breach of or strict liability under any law,
regulation, treaty, directive, statute,
subordinate legislation, common law, civil
law, order, judgment or award relating to
the environment, health, safety, control of
substances and pollution, and regardless of
whether such costs, charges, expenses,
liabilities and obligations are incurred in
tort, contract, statute, common law or civil
law and regardless of negligence or breach
of statutory duty on the part of the Seller;
"EPC Liabilities" means, in so far as these relate to the
Transferred Interest, all costs, charges,
expenses, liabilities and obligations,
whether arising on, before or after
Completion, which are incurred in connection
with any contracts entered into by TUPNI as
operator on behalf of itself, NNPC, the
Seller and Brasoil, relating
Exhibit 4.49-4
to the development of the Akpo field,
including any claims made under such
contracts, and regardless of whether such
costs, charges, expenses, liabilities and
obligations are incurred in tort, contract,
statute, common law, maritime law or civil
law and regardless of negligence or breach
of statutory duty on the part of the Seller,
TUPNI or any other party to OML 130 or the
PSC;
"Escrow Account" has the meaning given to it in the Escrow
Agreement;
"Escrow Agreement" means the escrow agreement in the form
attached as Schedule 4 dated the date
hereof;
"Escrow Completion has the meaning given to it in the Escrow
Notice" Agreement;
"Escrow ITC Security has the meaning given to it in the Escrow
Notice" Agreement; "Expenditures" has the meaning
given to it in Clause 4.3; "FGN" means the
Government of the Federal Republic of
Nigeria which shall be deemed to include any
ministry or agency thereof;
"Final Completion means the statement prepared by the Seller
Statement" pursuant to Clause 4.4 within fifteen (15)
Business Days of Completion;
"Gas Utilisation means the agreement dated 25 April 2005 and
Agreement" entered into between NNPC and Elf Petroleum
Nigeria Limited of the one part and NNPC,
the Seller, TUPNI and Brasoil of the other
part; "HOA" means the Heads of Agreement
entered into between NNPC, TUPNI, Brasoil
and the Seller dated 25 April 2005 relating
to NNPC's entry into OML 130; "Interim
Completion Statement" means the statement
prepared by the Seller pursuant to Clause
4.3 prior to Completion; "Interim Period"
means the period between the date of this
Agreement and Completion; "ITC Security" has
the meaning attributed thereto in Clause 3.4
of this Agreement;
"Minister" means the Minister of Petroleum Resources of
the FGN or any duly-constituted successor
entity designated by the FGN or such other
equivalent
Exhibit 4.49-5
competent authority;
"NNPC" means the Nigerian National Petroleum
Corporation;
"OML Area" means the area covered by the OML 130;
"OML 130" means the oil mining lease granted by the
Minister to NNPC, TUPNI, Brasoil and the
Seller by a letter dated 24 February 2005 in
respect of the OML Area;
"Operating Agreement" means the operating agreement dated 25 April
2005, and entered into between the Seller
and TUPNI relating to the conduct of
operations under the PSC;
"OPL 246" means the Oil Xxxxxxxxxxx Xxxxxxx 000
xxxxxxxx Xxxxxxx dated 15 April 1999 and
with a commencement date of 23 February 1998
and granted by the FGN to the Seller, and in
respect of which the Seller has assigned a
24% interest to TUPNI and a 16% interest to
Brasoil;
"Parties" means collectively the Seller and the
Purchaser;
"Party" means the Seller or the Purchaser;
"Petroleum Operations" has the meaning given to it in the PSC;
"Production Co- means the agreement dated 26 April 2005
ordination Agreement" entered into between the Seller, TUPNI and
Brasoil to co-ordinate decisions relating to
operations in the OML Area;
"Profit Oil" has the meaning given to it in the PSC;
"PSC" the Production Sharing Contract dated 25
April 2005 and entered into by NNPC of the
one part and the Seller of the other part as
Contractor and TUPNI as operator relating to
NNPC's fifty per cent (50%) interest in OML
130 and the rights and obligations of the
Contractor and TUPNI in respect of the
funding and the conduct of Petroleum
Operations on behalf of NNPC;
"Purchase Price" means the amount referred to in Clause 3.1;
"Purchaser's Escrow has the meaning given to it in the Escrow
Termination Notice" Agreement;
"Purchaser's the representations and warranties of the
Warranties" Purchaser in Schedule 2, Part B;
"Receipts" has the meaning given to it in Clause 4.3;
Exhibit 4.49-6
"Reimbursement Amount" means the amount referred to in Clause 4.1;
"Retained Interest" means all of the rights, benefits, interests
and obligations attaching to and forming
part of (1) the Seller's remaining ten per
cent (10%) interest as a Contractor in and
under the PSC, and (2) the remaining ten per
cent (10%) of the Seller's participating
interest in and under the Operating
Agreement, (3) all of the corresponding
rights, interests and obligations under the
Production Co-ordination Agreement, and (4)
all of the corresponding rights, benefits
and interests under the HOA;
"Seller's Escrow has the meaning given to it in the Escrow
Termination Notice" Agreement;
"Seller's Warranties" the representations and warranties of the
Seller in Schedule 2, Part A;
"Transferred Interest" means all of the rights, benefits, interests
and obligations attaching to and forming
part of (1) the ninety per cent (90%)
interest of the Seller's interest as a
Contractor in and under the PSC, (2) the
Seller's ninety per cent (90%) participating
interest in and under the Operating
Agreement, (3) all of the corresponding
rights, interests and obligations under the
Production Co-ordination Agreement, and (4)
all of the corresponding rights, benefits
and interests under the HOA;
"TUPNI" means Total Upstream Nigeria Limited, its
successors and permitted assigns; and
"Warranties" the Seller's Warranties and the Purchaser's
Warranties.
1.2 All references to Clauses, Recitals and Schedules are, unless
otherwise expressly stated, references to clauses of and recitals and
schedules to this Agreement.
1.3 The headings in this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement.
1.4 Any reference to any statute or statutory instrument in this Agreement
shall be a reference to the same as amended, consolidated or extended,
supplemented or re-enacted from time to time or at any time prior to
the date of this Agreement, and shall include any orders, regulations,
instruments or other subordinate legislation made under the relevant
statute.
1.5 Except where the context otherwise requires, words denoting the
singular include the plural and vice versa; words denoting any gender
include all genders; words denoting persons include firms and
corporations and vice versa.
Exhibit 4.49-7
1.6 The word "including" shall be construed without limitation.
1.7 The Schedules form part of this Agreement and shall be construed and
shall have the full force and effect as if expressly set out in the
body of this Agreement, save that in the event of any conflict between
the Schedules and any provision contained in the Clauses of this
Agreement the latter shall prevail.
2. SALE AND PURCHASE CONDITIONS
2.1 Subject to the terms and conditions hereinafter provided, on the
Completion Date and for the Consideration the Seller, as legal and
beneficial owner, shall sell and assign the Transferred Interest with
full title guarantee to the Purchaser and the Purchaser shall purchase
and acquire the Transferred Interest free from Encumbrances.
2.2 Subject to Clause 3.3, the sale and assignment of the Transferred
Interest referred to in Clause 2.1 shall be completed on the
Completion Date when the conditions precedent in Clause 2.3 have been
fulfilled, provided that the said sale and assignment shall, as
between the Parties, be deemed for all purposes to be made with effect
from the Effective Date.
2.3 The respective obligations of the Seller and of the Purchaser pursuant
to Clause 2.1 shall be subject to the satisfaction of the following
conditions precedent:
(a) the receipt of the unconditional written consent of NNPC under
clause 18 of the PSC to the assignment to the Purchaser of the
Seller's ninety per cent (90%) interest as a Contractor;
(b) the execution of the Completion Documents by the parties thereto
(excluding the Parties);
(c) the Seller having notified the Minister and the Nigerian
Department of Petroleum Resources (or any successor), in writing,
at the same time as requesting the consent referred to in Clause
2.3(a), that the Seller is proposing to assign the Transferred
Interest to the Purchaser; and
(d) the receipt of the consent of the government of The People's
Republic of China to the acquisition of the Transferred Interest
by the Purchaser.
2.4 (a) The Seller shall use its reasonable endeavours to procure the
satisfaction as soon as reasonably practicable of the conditions
precedent in Clause 2.3 (a), (b) and (c). The Purchaser shall
render all reasonable assistance in relation to the satisfaction
of such conditions precedent as the Seller may request, including
the provision by the Purchaser of a parent company guarantee
acceptable to NNPC, if so required by NNPC.
(b) The Purchaser shall use its reasonable endeavours to procure the
satisfaction as soon as reasonably practicable of the conditions
precedent in Clause 2.3(d). To the extent it is able the Seller
shall render all reasonable assistance in relation to the
satisfaction of such condition precedent.
(c) If the conditions precedent in Clause 2.3 are not satisfied
within four (4) months of the date hereof, the Parties shall meet
to discuss what joint action
Exhibit 4.49-8
should be taken in order to procure the satisfaction of such
conditions precedent.
2.5 If (notwithstanding that the Parties shall have used such endeavours
and rendered such assistance as aforesaid) the conditions precedent
set out in Clause 2.3 have not been satisfied before 5:00 p.m.
Nigerian time within six (6) months of the date of this Agreement (or
such later date as the Parties shall agree in writing) the Seller or
the Purchaser shall have the right to terminate this Agreement
forthwith by notice to the other Party, and upon termination neither
Party shall, subject to Clause 2.7, have any liability hereunder to
the other Party except in respect of any breach of this Agreement
committed before such time.
2.6 The Seller shall notify the Purchaser, as soon as reasonably
practicable, when each of the conditions precedent listed in Clause
2.3 has been satisfied and provide the Purchaser with a copy of the
consent received under Clause 2.3(a) and notice sent under Clause 2.3
(c) duly acknowledged for receipt by the recipient.
2.7 (a) On the day following the date of this Agreement the Purchaser
shall pay, or procure the payment of, the Deposit into the Escrow
Account in accordance with the terms of the Escrow Agreement. If
the Purchaser fails to pay the Deposit as aforesaid, without
prejudice to any other rights of the Seller, the Seller shall
have the right to seek specific performance by the Purchaser of
its obligation under this Clause 2.7(a) or, at the Seller's
option, to terminate this Agreement forthwith.
(b) The Deposit less the ITC Security shall be paid at Completion to
the Seller as provided in the Escrow Agreement and Clause 6.2(f).
(c) If this Agreement is terminated prior to Completion due to the
breach by the Purchaser of its obligations hereunder or if
Completion does not occur due to the breach by the Purchaser of
its obligations hereunder, in either case the Deposit shall,
without prejudice to any other rights of the Seller, be payable
forthwith to the Seller and the Seller's Escrow Termination
Notice shall be signed by both Parties in accordance with the
Escrow Agreement.
(d) If this Agreement is terminated prior to Completion due to the
breach by the Seller of its obligations hereunder or if
Completion does not occur as provided in Clauses 2.5, 3.3,
7.12(b) or due to the breach by the Seller of its obligations
hereunder, in any such case the Deposit shall, without prejudice
to any other rights of the Purchaser, be payable forthwith to the
Purchaser and the Purchaser's Escrow Termination Notice shall be
signed by both Parties in accordance with the Escrow Agreement.
(e) On entry into of this Agreement by the Parties, and at
Completion, the Seller shall deliver a legal opinion addressed to
the Purchaser and to CNOOC Limited from its legal advisers
substantially in the form attached hereto as Schedule 6.
Exhibit 4.49-9
3. CONSIDERATION
3.1 The Consideration for the sale and assignment of the Transferred
Interest payable to the Seller at Completion shall be the amount of
Dollars one billion seven hundred and fifty million
($1,750,000,000.00) (the "Purchase Price"), as adjusted pursuant to
Clause 3.2.
3.2 (a) The Purchase Price referred to in Clause 3.1 shall be adjusted to
n
an amount (the "Adjustment Amount") equal to Sigma Xn where:-
1
n
Xn = (LIBORn) x Dn x (P + Sigma Xn -1)
1
--
360
where:- Xo = 0;
n = for each month in the period from 1 January 2006
to Completion;
Dn = the number of days in each month in the period
from and including 1 January 2006 up to but
excluding the Completion Date, provided that, if
the Completion Date is not the last day of a month
the number of days for the relevant month shall be
the number of days in that month up to but
excluding the Completion Date; and where a month
shall be deemed to be a period of
thirty (30) days;
P = the amount of Dollars [*];
LIBORn = means the display rate per annum of the offered
quotation for deposits in Dollars for a period of
one month which appears on Telerate Page 3750 (or
such other page as the Parties may agree) at or
about 11.00 am London time on the Business Day
immediately prior to 1 January 2006 and thereafter
on the first day of each month in the period until
Completion, or, if such day is not a Business Day
in London, on the last Business Day in London
prior to such day.
(b) The amount calculated under Clause 3.2(a) and notified to the
Purchaser as provided in Clause 6.2(d) shall, save in the event
of fraud or manifest error in calculating such amount (but not
otherwise), be payable at Completion and in the case of fraud or
manifest error and if not resolved by the Parties prior to
Completion, the matter shall be resolved by reference to an
expert appointed on request of either Party in accordance with
Clause 4.5 which shall be deemed to apply mutatis mutandis to a
dispute under this Clause 3.2(b).
Exhibit 4.49-10
3.3 The Seller acknowledges that the Consideration is based on the
assumption that the royalty rate which will apply to, and in respect
of, production attributable the Transferred Interest is zero percent
(0%). In the event that prior to Completion, the royalty rate is
varied,
(a) the Seller may serve a notice on the Purchaser of such variation
in the royalty rate and the Purchaser shall have the right,
exercisable by notice within seven (7) Business Days of receipt
of such notice from the Seller, to terminate this Agreement
forthwith by notice to the Seller; or
(b) if no notice is received under Clause 3.3(a), the Purchaser shall
have the right exercisable at any time (i) prior to, and (ii) up
to three (3) Business Days after receipt of a validly served
notice under Clause 2.6 that the conditions precedent have been
fulfilled, to terminate this Agreement forthwith by notice to the
Seller,
and, in the case of termination pursuant to either of Clause 3.3(a)
or (b), the Deposit shall be repayable to the Purchaser in accordance
with the Escrow Agreement. If the Purchaser fails to exercise such
termination right within the specified time detailed in Clause 3.3(a)
or (b), as the case may be, the Purchaser shall be deemed to have
irrevocably waived its right of termination under this Clause 3.3.
3.4 The Seller acknowledges that the Consideration is based on the
assumption that the investment tax credit regime ("ITC") will apply
to, and in respect of, the Transferred Interest. If prior to the date
of first commercial production of hydrocarbons from the OML Area (the
"Production Date"), official government written notification or
written NNPC communication of the official government's decision has
been received that ITC will apply to and in respect of the Transferred
Interest, then at Completion, if such notice or communication has been
received, or following Completion, upon receipt of such notice or
communication, the Seller shall be paid the sum of Dollars [*] (the
"ITC Security") and if by the Production Date, such notification has
not been received, then the ITC Security shall be paid to the
Purchaser, and in either case the Escrow ITC Security Notice shall be
signed by both Parties all as provided in the Escrow Agreement and, if
payment is to the Purchaser, the same shall be treated as a reduction
to the Consideration.
4. REIMBURSEMENT OF TUPNI/BRASOIL CARRY
4.1 At Completion (or thereafter as provided in this Clause 4) the
Purchaser shall reimburse directly to TUPNI and Brasoil pursuant to
Clause 6.2(e) an aggregate amount of Dollars five hundred and eighteen
million ($518,000,000.00) (the "Reimbursement Amount"), representing
advances owing to TUPNI and Brasoil by the Seller in respect of the
period prior to the Effective Date, adjusted pursuant to the following
provisions of this Clause 4.
4.2 (a) The Reimbursement Amount referred to in Clause 4.1 shall be
adjusted as follows:
n
(i) to an amount equal to RD + Sigma Xn (the "Adjusted
1
Reimbursement Amount") where:-
Exhibit 4.49-11
n
Xn = (LIBORn + [*]%) x Dn x (RD + Sigma Xn- 1)
1
--
360
where:- Xo = 0;
n = for each month in the period from 1 January 2006 to
Completion;
Dn = the number of days in each month in the period
from and including 1 January 2006 up to but
excluding the Completion Date, provided that, if
the Completion Date is not the last day of a month
the number of days for the relevant month shall be
the number of days in that month up to but
excluding the Completion Date; and where a month
shall be deemed to be a period of thirty (30)
days;
RD = the amount of Dollars [*];
LIBORn = means the display rate per annum of the offered
quotation for deposits in Dollars for a period of
one month which appears on Telerate Page 3750 (or
such other page as the Parties may agree) at or
about 11.00 am London time on the Business Day
immediately prior to 1 January 2006 and thereafter
on the first day of each month in the period until
Completion, or, if such day is not a Business Day
in London, on the last Business Day in London
prior to such day.
(ii) deducting or adding the payment to be made pursuant to
Clause 4.3 as set out on the Interim Completion Statement,
such payment being deducted from the Adjusted Reimbursement
Amount, if due from the Seller, and added to the Adjusted
Reimbursement Amount if due from the Purchaser.
(b) Following Completion the Adjusted Reimbursement Amount shall be
further adjusted by the Final Completion Statement.
(c) The amount calculated under Clause 4.2(a)(i) and notified to the
Purchaser as provided in Clause 6.2(e) shall, save in the event
of fraud or manifest error in calculating such amount (but not
otherwise), be payable at Completion. In the case of fraud or
manifest error, if any dispute is not resolved by the Parties
prior to Completion, the matter shall be resolved by reference to
an expert appointed on request of either Party in accordance with
Clause 4.5 which shall be deemed to apply mutatis mutandis to a
dispute under this Clause 4.2(c).
4.3 The Adjusted Reimbursement Amount shall be increased by the amount of
all Cash Calls (except any sums detailed in the statement of advances
set out in Schedule 5 attached hereto) paid by or on behalf of the
Seller under the Operating Agreement on
Exhibit 4.49-12
or after the Effective Date (herein collectively referred to as
"Expenditures") and shall be reduced by the amount of all income and
receipts received by or on behalf of the Seller on or after the
Effective Date under the Operating Agreement (herein collectively
referred to as "Receipts") and respectively attributable to the
Transferred Interest, in the period from the Effective Date to the
Completion Date, and at least ten (10) Business Days prior to
Completion the Seller shall prepare and give to the Purchaser a
statement (the "Interim Completion Statement") showing for such
period:
(a) all Expenditures and all Receipts;
(b) an amount equal to interest at the Base Rate plus three per cent
(3%) on all Expenditures, charged from, and including, the date
such Expenditures were paid up to, but excluding, the Completion
Date;
(c) an amount equal to interest at the Base Rate plus three per cent
(3%) on all Receipts charged from, and including, the date such
Receipts were received up to, but excluding, the Completion Date;
(d) the net balance resulting from the addition of the Expenditures
and the amounts determined under Clause 4.3(b) less the sum of
the Receipts and the amounts determined under Clause 4.3(c); and
if the amount of the resulting net balance is positive, such amount
shall be due from the Purchaser to the Seller and payable as provided
in Clause 6.2(e) and if negative, shall be due from the Seller to the
Purchaser, provided always that in the event of fraud or manifest
error in calculating the amounts included in the Interim Completion
Statement, but not otherwise, the Purchaser shall be entitled to
withhold such amount from the Adjusted Reimbursement Amount payable
at the Completion Date pending the resolution of such matter in
accordance with the provisions of Clause 4.5.
4.4 (a) Within fifteen (15) Business Days of Completion, the Seller shall
prepare and give to the Purchaser a further statement in respect
of the Expenditures and Receipts and other amounts as referred to
in Clause 4.3(a) to (d) inclusive in the period from the
Effective Date to the Completion Date (the "Final Completion
Statement"), which shall be prepared on the same basis as the
Interim Completion Statement and shall show any adjustments to
the Interim Completion Statement and any further adjustment to
the Reimbursement Amount. If at the time of preparing the Final
Completion Statement, there are Expenditures or Receipts which
cannot be ascertained, then the Seller shall deliver a further
statement in respect thereof as soon as reasonably practicable,
provided that following Completion, the Purchaser shall provide
promptly to the Seller such information regarding Expenditures
and Receipts as may be received by the Purchaser to permit the
Seller to prepare the Final Completion Statement.
(b) Within fifteen (15) Business Days of receipt of the Final
Completion Statement, or any further statement, the Purchaser
shall give notice to the Seller either (1) confirming acceptance
of the Final Completion Statement, or such further statement, in
which event the Purchaser or the Seller, as applicable, shall pay
or repay the amount of any such further adjustment to the
Reimbursement Amount shown to be payable on the Final Completion
Exhibit 4.49-13
Statement or such statement within seven (7) Business Days of the
Purchaser's notice, together with interest on such amount at the
Base Rate plus three per cent (3%) charged from and including
Completion to and excluding the date of payment, or (2) disputing
all or part of such Final Completion Statement, or further
statement, in which event if the Parties cannot resolve such
dispute within ten (10) Business Days, the matter shall be dealt
with as provided in Clause 4.5. If the Purchaser fails to give a
notice to Seller as referred to above, the Purchaser shall be
deemed to have accepted the Final Completion Statement or further
statement which shall be final and binding on the Parties.
4.5 In the event that the Parties cannot agree upon the Final Completion
Statement or other statements as provided in Clause 4.4, the dispute
may be referred at any time thereafter by either Party for resolution
by a firm of independent chartered accountants appointed by the
President for the time being of the Institute of Chartered Accountants
of England and Wales, unless prior to such referral, the Parties have
agreed upon and appointed such firm. The nominated firm of independent
chartered accountants shall be afforded the same access to books,
records, accounts and documents in the possession of the Parties as
they have in respect of each other. The decision of the firm so
appointed shall, in the absence of fraud or manifest error, be final
and binding on the Parties, and settlement of any outstanding amount
shall be made within five (5) Business Days of such decision together
with interest charged and paid as provided in Clause 4.4. The costs of
the firm shall be borne by the Parties in equal proportions, and such
firm shall be deemed to be acting as an expert and not as an
arbitrator.
4.6 Expenditures, Receipts and other amounts referred to in this Clause 4
and which are in currencies other than Dollars, shall be converted to
Dollars at the midpoint of the day's spread of the relevant exchange
rate quoted in the Financial Times, London edition, for the day the
applicable Expenditures, Receipts or other amounts were paid or
received (or if not so quoted the midpoint for the applicable currency
as quoted by the relevant central bank or other bank of repute).
5. INTERIM PERIOD
5.1 During the Interim Period the Seller shall:
(a) perform and procure the performance of all activities and
obligations in relation to the Transferred Interest in the
ordinary and usual course of business and in accordance with good
oilfield practices, including procuring the payment of all Cash
Calls;
(b) advise the Purchaser promptly of any claim, legal proceedings,
arbitration or expert reference which may arise in connection
with the Transferred Interest;
(c) not terminate or amend, or permit any amendment or termination
of, the PSC, the HOA, the Operating Agreement or the Production
Co-ordination Agreement without the prior written consent of the
Purchaser and shall not create or permit to subsist any
Encumbrance over the Transferred Interest (other than in respect
of the carry detailed in the farm in agreement of 19 March 1998)
and not execute any new operating agreements, cooperation
Exhibit 4.49-14
agreements, unitisation agreements or project documents in
relation to OML 130 without prior written consent of the
Purchaser;
(d) prior to any meeting under the PSC, the Operating Agreement, or
the Production Co-ordination Agreement or prior to any material
decision being taken in respect of the Transferred Interest,
consult with the Purchaser and, in attending such meeting or
casting its vote or abstaining, take account of any reasonable
representation which the Purchaser may make;
(e) use its reasonable endeavours to procure agreement to the
Purchaser's representative attending meetings under the PSC, the
Operating Agreement and the Production Co-ordination Agreement as
an observer and together with the Seller's representative;
(f) notify the Purchaser as soon as reasonably practicable of any
event or matter which would cause the Seller's Warranties, if the
Seller's Warranties were repeated every day until Completion, to
be breached;
(g) subject to any confidentiality restrictions by which the Seller
is bound, keep the Purchaser informed in a timely manner of any
Cash Calls issued and details of payments made and the adoption
or amendment to any work programme and budget and the negotiation
or execution of any material contract pursuant to the PSC and the
Operating Agreement, and to the extent not already provided,
provide the Purchaser with copies of all Data, written notices
and other information provided by or to the Seller (whether
before or during the Interim Period) including any technical or
geological data or minutes of meetings received under the PSC,
the Operating Agreement, the Production Co-ordination Agreement
or the HOA and shall provide the Purchaser and the Purchaser's
advisers with access, at times convenient to the Seller and
subject to reasonable prior notice, during normal working hours
to such information, documentation and data (subject always to
any confidentiality obligations restricting disclosure) which
they may reasonably require in respect of the Transferred
Interest;
(h) procure TUPNI to maintain any insurance taken out under the
Operating Agreement (details of which shall be provided to the
Purchaser promptly following the date hereof to the extent not
already provided) and shall procure TUPNI to pursue any claim
under the insurance policies and apply any insurance proceeds to
meet any costs and expenses or credit the proceeds to the joint
account of the Contractor under the Operating Agreement;
(i) take all reasonable steps available to it to ensure that OML 130
is not amended, varied or revoked; and
(j) not transfer nor assign, nor enter into any agreement or
arrangement for the transfer or assignment of, any rights or
obligations in respect of the Retained Interest.
5.2 If Completion does not take place for any reason provided for in this
Agreement:
Exhibit 4.49-15
(a) all information provided to the Purchaser under this Clause 5
will be returned to the Seller at the Purchaser's cost promptly
after the Seller's request therefor and the Purchaser shall not
retain copies thereof; and
(b) all analyses, compilations, studies or other documents prepared
by or on behalf of the Purchaser relating to OML 130 and the OML
Area and/or the Transferred Interest will be destroyed.
5.3 In respect of the Transferred Interest, the Purchaser agrees and
accepts that all work programmes and budgets, commitments to
expenditures and other decisions relating to Petroleum Operations
relating to the OML Area and which are approved by the management
committee under the PSC shall be binding upon the Purchaser in all
respects.
5.4 It is agreed that as at Completion and as between the Parties, the
words "3 representatives of Contractor" referred to in clause 15 of
the HOA shall be read and construed as meaning "2 representatives of
the Purchaser and 1 representative of the Seller". For the avoidance
of doubt, the Seller shall support any request by the Purchaser for
representation at any subcommittee established under clause 7.7 of the
PSC.
5.5 If TUPNI as Operator fails to pay to or credit the Joint Account (as
both terms are defined in the Operating Agreement) with any amount due
to the Contractor under the PSC, then the Seller and the Purchaser
shall co-operate and take such actions as are reasonable to procure
that such amount is paid to the Joint Account for the benefit of the
Seller and the Purchaser according to their respective Participating
Interests (as defined in the Operating Agreement).
5.6 After the date hereof, the Seller shall not agree to any amendment to
the HOA which affects the rights, benefits and interests under the HOA
to be assigned to the Purchaser at Completion pursuant to the
assignment of the HOA interests forming part of the Completion
Documents without the prior consent of the Purchaser, which shall not
be unreasonably withheld.
6. COMPLETION
6.1 Completion shall take place (unless otherwise agreed) at the offices
of Xxxxx Xxxxx, 00 Xxxxxxxx, Xxxxxx XX0X 0XX as soon as reasonably
practicable and in any event no later than ten (10) Business Days
after the date on which the Seller shall have given notice under
Clause 2.6 that each of the conditions in Clause 2.3 are satisfied.
6.2 At Completion, the following events shall take place:
(a) the Seller shall deliver to the Purchaser:
(i) a copy, certified as a true copy by a director or officer
of the Seller, of the consent of NNPC in respect of the
transfer and assignment of the Transferred Interest;
(ii) the Completion Documents duly executed by the parties
thereto (other than the Purchaser) and the Seller;
Exhibit 4.49-16
(iii) a copy, certified as a true copy by a director or the
secretary of the Seller, of the resolution of the board of
directors of the Seller approving the disposal of the
Transferred Interest and authorising the execution of this
Agreement, the Completion Documents and all other
documents herein contemplated;
(iv) a copy, certified as a true copy by a director or officer
of the Seller, of a power of attorney authorising a person
or persons to sign this Agreement, the Completion
Documents and all other documents contemplated by this
Agreement on behalf of the Seller;
(v) a legal opinion, dated as of the Completion Date, from the
Seller's legal advisers substantially in the form attached
hereto as Schedule 6; and
(vi) the Acknowledgements duly signed by TUPNI and Brasoil;
(b) the Seller shall execute all such other documents and do all such
other acts and things as may reasonably be required in order to
transfer the Transferred Interest to the Purchaser at Completion
and otherwise carry out the true intent of this Agreement;
(c) the Purchaser shall deliver to the Seller:
(i) a copy certified as a true copy by a director or officer
of the Purchaser of the consent of the government of The
People's Republic of China referred to in Clause 2.3(d);
(ii) the Completion Documents duly executed by the Purchaser
and thereafter the Seller shall promptly send original
signed copies of the notice of assignment of the HOA
interests to each of the parties to the HOA;
(iii) a copy, certified as a true copy, by a director or the
secretary of the Purchaser of the resolutions of the board
of directors of the Purchaser approving, in respect of the
Purchaser, the acquisition of the Transferred Interest and
authorising the execution on behalf of the Purchaser of
this Agreement, the Completion Documents and all other
documents herein contemplated; and
(iv) a copy, certified as a true copy by a director or officer
of the Purchaser, of a power of attorney authorising a
person or persons to sign this Agreement, the Completion
Documents, and all other documents contemplated by this
Agreement on behalf of the Purchaser;
(d) the Purchaser shall pay at Completion to the Seller the Purchase
Price, adjusted as provided in Clause 3.2, less the Deposit, by
electronic transfer to the Seller's bank account all as notified
to the Purchaser by the Seller not less than three (3) Business
Days prior to Completion;
(e) the Purchaser shall pay at Completion as provided below the
Adjusted Reimbursement Amount and the Seller shall notify the
Purchaser not less than
Exhibit 4.49-17
three (3) Business Days prior to Completion of the Adjusted
Reimbursement Amount breaking out its components determined
under Clause 4.2(a) and shall specify in such notice the amount
to be paid to TUPNI, the amount to be paid to Brasoil and the
amount to be paid to the Seller, and the bank account details of
TUPNI, Brasoil and the Seller provided that all such amounts to be
paid by the Purchaser shall be equal to the Adjusted Reimbursement
Amount, and the Purchaser shall make such payments by electronic
transfer to the bank accounts specified in the Seller's notice
(which payment shall be a good discharge for the Purchaser);
(f) the Seller and the Purchaser shall execute the Escrow Completion
Notice in accordance with the terms of the Escrow Agreement in
order to permit the receipt by the Seller of the Deposit less the
ITC Security; and
(g) the Purchaser shall execute all such other documents and do all
such other acts and things as may reasonably be required in order
to transfer the Transferred Interest to the Purchaser at
Completion and otherwise carry out the true intent of this
Agreement.
6.3 Within thirty (30) days of the Completion Date, the Seller shall make
available for collection from the Seller's office in Lagos, Nigeria,
so far as the same are not already in the Purchaser's possession and
subject to the Purchaser requesting the same at Completion:
(a) copies of all current work programmes and budgets, Cash Calls and
joint venture xxxxxxxx relating to the Transferred Interest;
(b) copies of all Data;
(c) copies of the Data Room Documents; and
(d) geoscientific and engineering data and logs.
7. REPRESENTATIONS, WARRANTIES AND CLAIMS
7.1 Subject to all of the provisions of this Agreement and to matters
fairly disclosed in the Disclosure Letter, the Seller, in relation to
the Transferred Interest, hereby represents and warrants to the
Purchaser in the terms of the Seller's Warranties which shall be
deemed to be repeated as at the Completion Date save as otherwise
noted in Schedule 2, Part A.
7.2 Subject to all of the provisions of this Agreement, the Purchaser
hereby represents and warrants to the Seller in the terms of the
Purchaser's Warranties which shall be deemed to be repeated as at the
Completion Date.
7.3 Save in the case of fraud, and without prejudice to the provisions of
Clause 4.3 or 4.4, the Seller shall not be liable for any claim made
by the Purchaser under this Agreement, including the Warranties, and
any such claim shall be wholly barred and unenforceable unless (1)
Completion has occurred and (2) the Seller shall have received from
the Purchaser written notice, giving such details of the claim as are
then available, within thirty (30) days of the Purchaser becoming
aware of the facts giving
Exhibit 4.49-18
rise to such claim and in any event prior to 5pm Nigerian time on a
date twelve (12) months after the Completion Date PROVIDED ALWAYS that
any such claim which is validly made within the required period as
aforesaid shall, unless settled or withdrawn, be deemed to have been
waived or withdrawn if legal proceedings in respect thereof have not
been properly issued and served on the Seller within three (3) months
of written notice of the relevant claim first having been given as
aforesaid. The requirement to make a claim prior to 5pm Nigerian time
on a date determined as stated above shall not apply to a claim made
by the Purchaser pursuant to an indemnity in this Agreement.
7.4 Save in the case of fraud, and without prejudice to the provisions of
Clause 4.3 or 4.4, the Seller shall have no liability in respect of
any claim under this Agreement, including the Warranties and the
indemnities:
(a) where the liability of the Seller in respect of that claim would
(but for this Clause) be less than Dollars two million
($2,000,000.00); or
(b) unless and until and only to the extent that the liability in
respect of that claim (not being a claim for which liability is
excluded under Clause 7.4(a)) when aggregated with the liability
of the Seller in respect of all other such claims shall exceed
Dollars ten million ($10,000,000.00); or
(c) to the extent that the aggregate liability of the Seller in
respect of all claims under this Agreement exceeds twenty per
cent (20%) of the sum of the Consideration and the Adjusted
Reimbursement Amount.
SAVE THAT, the aggregate liability of the Seller for all claims
relating to valid title to the Transferred Interest, shall not be
subject to Clauses 7.4 (a), (b) and (c) and the aggregate liability in
respect thereof shall be limited to the sum of the Consideration and
the Adjusted Reimbursement Amount.
7.5 If the Purchaser or the Seller (as the case may be) ("First Party")
receives any claim or becomes aware of any fact which is reasonably
likely to result in the First Party having a claim against the Seller
or the Purchaser (as the case may be) ("Second Party") under this
Agreement, the First Party shall promptly notify the Second Party
thereof in writing. The Second Party then shall be entitled to take
and/or to require the First Party to take any reasonable action it may
request to avoid, dispute, resist, compromise, defend or appeal such
claim, but at the expense of the Second Party, including, but not
limited to the conducting of any appeal, dispute, compromise or
defence thereof and of any incidental negotiations but at all times in
consultation with the First Party. The First Party shall not make any
admission of liability, settle or compromise such claim unless
requested in writing to do so by the Second Party. Whether the claim
arises from the provisions of this Agreement (that is, there is no
third party involvement) between the First Party and the Second Party
or otherwise, the First Party will give the Second Party and its
professional advisers all cooperation, access and assistance for the
purposes of considering and resisting such claim as it may reasonably
require, provided always that the First Party is indemnified to its
reasonable satisfaction by the Second Party against all claims, costs,
expenses, damages or losses which may thereby be incurred.
Exhibit 4.49-19
7.6 Save only as and to the extent of the Seller's Warranties, the Seller
makes no representations or warranties of any kind in respect of any
matter or thing and disclaims all liability and responsibility for any
representation, warranty, statement, opinion or information made or
communicated (orally or in writing) to the Purchaser (including,
without limiting the generality of the foregoing, any representation,
warranty, statement, opinion, information or advice made or
communicated to the Purchaser by any officer, shareholder,
stockholder, director, employee, agent, adviser, consultant or
representative of the Seller), and the Purchaser acknowledges and
affirms that it has not relied upon any such representation, warranty,
statement, opinion or information in entering into and carrying out
the transactions contemplated by this Agreement. Without limiting the
generality of the foregoing, the Seller makes no representations or
warranties as to all or any of: (i) the amounts, quality and
deliverability of hydrocarbon reserves attributable to the Transferred
Interest; (ii) any geological, geophysical, engineering, economic or
other interpretations, forecasts or evaluations; (iii) the amount of
any future revenue; (iv) any future costs and expenses, including the
provision of any security, relating to the abandonment or
decommissioning of any installation, facility or equipment under the
PSC, the Operating Agreement or any applicable laws and regulations;
(v) the physical condition of any assets, facilities, equipment,
pipelines, xxxxx, and installations forming part of the Transferred
Interest all of which are acquired by the Purchaser hereunder on an
"as is, where is" basis and at the Purchaser's sole risk regarding the
condition thereof and the need for any repairs thereto or replacement
thereof; (vi) subject to Clause 8, any liability for tax arising out
of or in connection with the Transferred Interest; (vii) the amount
and/or value of any Cost Oil and Profit Oil which may be recoverable
or to which the Contractor is, or may become, entitled; and (viii) the
amount of or availability of tax allowances in respect of Nigerian
petroleum profits tax derived from any past costs incurred in respect
of the Transferred Interest.
7.7 The Purchaser acknowledges and affirms that it has had full access to
the Data Room Documents and that the Purchaser has made its own
independent investigation, analysis and evaluation of the geological,
geophysical, engineering, economic or other interpretations,
availability of Cost Oil, Profit Oil, tax allowances, future costs and
expenditures and prospects for further development of the Transferred
Interest.
7.8 If the Seller pays to the Purchaser an amount pursuant to a claim in
respect of the Seller's Warranties, or any other provision of this
Agreement, and the Purchaser is entitled to recover from a third party
any sum in respect of any matter giving rise to such claim, the
Purchaser shall, with reasonable expedition, take all reasonable and
appropriate steps to enforce such recovery and shall forthwith repay
to the Seller so much of the amount paid by the Seller to the
Purchaser as does not exceed the amount recovered from the third
party, less all reasonable costs, charges and expenses incurred by the
Purchaser in obtaining that payment and in recovering that amount from
the third party. In relation to such third party claims, the Purchaser
shall not settle, waive or compromise such claim without the Seller's
approval (such approval not to be unreasonably withheld or delayed),
and the Purchaser shall cooperate with and provide access to all
information to the Seller and the Seller's professional advisers.
Exhibit 4.49-20
7.9 Save in the case of any fraudulent misrepresentation, the Seller shall
incur no liability to the Purchaser under this Agreement in respect of
any claim made by the Purchaser relating to the Seller's Warranties to
the extent that:
(a) the claim or the events giving rise to the claim would not have
arisen but for, or the amount of the claim is increased as a
result of, an act, omission or transaction of the Purchaser after
Completion otherwise than in the ordinary and proper course of
business as at present carried on or which would not have arisen
but for any claim, election or surrender or disclaimer made or
omitted to be made, or notice or consent given, or omitted to be
given, by the Purchaser;
(b) the claim is based upon a liability which is contingent only,
unless and until such contingent liability becomes an actual
liability or until the same is finally adjudicated;
(c) the claim relates to any matter disclosed or contained in the
Disclosure Letter and/or the Data Room Documents or otherwise is
in the actual knowledge as at the date of signature of this
Agreement of the Purchaser and its directors, officers and
employees;
(d) the claim occurs wholly or partly out of or the amount thereof is
increased as a result of:
(i) any increase in the rates of tax or royalty made after the
date hereof; or
(ii) any change in law or regulation or in its interpretation or
administration by the Nigerian courts, by NNPC, the Nigerian
Inland Revenue or by any other fiscal, monetary or
regulatory authority after the date hereof; or
(iii) any change in market, political or economic conditions;
(e) the Purchaser has obtained a credit or other reimbursement in
respect of such claim;
(f) the claim is as a result of anything done or omitted to be done
by the Seller at the written request, or with the written
agreement, of the Purchaser;
(g) such claim has been satisfied, in whole or in part, by a claim
under any other warranty or indemnity; and
(h) the loss, damage or liability giving rise to the claim is
recovered by the Purchaser under any insurance policies taken out
under the Operating Agreement, or would have been so recovered if
the Purchaser had put in place at Completion insurance maintained
by or on behalf of the Seller in respect of the Transferred
Interest as notified to the Purchaser as provided in Clause
5.1(h).
7.10 In assessing any liabilities or damages recoverable by the Purchaser
as a result of a claim under the Seller's Warranties or any indemnity,
there shall be taken into account any benefit received by or accruing
to the Purchaser and/or the Purchaser's Affiliates, including, without
prejudice to the generality of the foregoing, any amount of tax
Exhibit 4.49-21
relief obtained and any amount by which any tax for which the
Purchaser, or any of the Purchaser's Affiliates, is or may be liable
to be assessed or accountable is reduced or extinguished, arising as a
direct consequence of the matter which gives rise to such claim.
7.11 In the event of any claim under the Warranties, a Party receiving
notice of such claim shall be given forty-five (45) days to remedy the
breach to which the claim relates, and nothing in this Agreement shall
relieve the other Party from its duty to mitigate any loss or
liability suffered in relation to such claim.
7.12 (a) Save as provided in Clause 7.12(b), the Purchaser shall have no
right to rescind or terminate this Agreement for breach of the
Seller's Warranties (save in the case of fraudulent
misrepresentation), and the Purchaser's sole remedy for any breach
of the Seller's Warranties shall be against the Seller in damages
subject to the limitations in this Agreement, and the liability
of the Seller to the Purchaser for any loss, claim or liability
arising out of or in connection with the acquisition of the
Transferred Interest shall be limited to a claim in contract
under this Agreement and (save in the case of fraudulent
misrepresentation) the Seller shall have no liability whatsoever
to the Purchaser in tort or otherwise.
(b) If prior to Completion the Seller is in breach of the Seller's
Warranties in paragraphs 1 and/or 2 the Purchaser shall have the
right, exercisable by notice given within five (5) Business Days
of the Purchaser becoming aware of such breach, to terminate this
Agreement forthwith by notice to the Seller, provided that if
Seller does not give such notice in accordance with this Clause
7.12(b) the Seller shall be deemed to have waived any right of
termination. If the Completion Date will occur in the period
during which the right of the Purchaser under this Clause 7.12(b)
is exercisable, the Completion Date shall be delayed until two
(2) Business Days after the expiry of such period.
7.13 If, prior to Completion, the Seller becomes aware that the Seller is
in material breach of any of the Seller's Warranties, the Seller shall
notify the Purchaser as soon as possible and the Seller shall use its
reasonable endeavours to remedy such breach, provided that the
provisions of this Clause 7.13 shall not operate so as to give the
Purchaser any rights in respect of such breach other than as provided
in this Clause 7 or to increase the liability of the Seller under this
Agreement.
7.14 Any amount paid in respect of a claim made under this Agreement,
including the Warranties and any indemnity, shall result in an
adjustment to the Consideration and (if applicable) the Adjusted
Reimbursement Amount.
7.15 Neither Party shall be liable under this Agreement for indirect,
consequential or special losses or damages howsoever caused, and
whether arising in contract, tort or as a result of breach of
statutory duty, including any loss of profits and lost or delayed
production of hydrocarbons; and it is hereby accepted by the Parties
that the right to recover any loss or damages under any claim for
breach of the Warranties or other obligations hereunder shall be
limited to the actual damages suffered or incurred by the Party
bringing such claim or to the payment of liquidated damages prescribed
herein.
Exhibit 4.49-22
7.16 Save where reference is made in the Seller's Warranties to OML 130,
the Production Co-ordination Agreement or the HOA, for the purposes of
the Seller's Warranties all references to Seller shall be read and
construed as referring only to the Seller in its capacity as
Contractor and the owner of the Transferred Interest.
8. TAXATION
8.1 Subject to Clause 8.2 and 8.3 and to Completion having occurred, the
Purchaser shall be responsible for the payment of:
(a) all stamp duties, registration or similar taxes and duties, if
any, payable in respect of the assignment to and purchase by the
Purchaser of the Transferred Interest; and
(b) all other taxes and royalties payable in respect of the
Transferred Interest and all income and revenue derived therefrom
by the Purchaser whether under the Completion Documents or
applicable laws and regulations of Nigeria from the Effective
Date.
8.2 The Parties believe that the transaction hereunder is outside the
scope of value added tax or sales tax under Nigerian law or
regulations. In the event that the Seller is advised in writing by the
Nigerian tax authority that the transaction is subject to value added
tax or sales tax, the Seller shall notify the Purchaser and the
Parties shall work together as required to seek relief from payment of
such tax. In the event the Parties fail to obtain such relief, the
Seller shall be authorised to invoice the Purchaser for such tax in
addition to the Consideration and the Purchaser shall pay such invoice
at least three (3) Business Days prior to the due date for payment.
8.3 Save for the taxes to be paid by the Purchaser as provided in Clause
8.1, the Seller shall be responsible for the payment of any taxes
(including but not limited to any income or capital gains tax) payable
by it, by reason of the sale of the Transferred Interest and receipt
of the Consideration and payment by the Purchaser of the Adjusted
Reimbursement Amount.
8.4 The Parties confirm that an amount equal to 'P', as defined in Clause
3.2(a), and 'RD', as defined in Clause 4.2(a)(i), shall not be subject
to any deduction or withholding on account of tax and shall be paid in
full at Completion subject to and in accordance with the provisions of
this Agreement and notwithstanding anything to the contrary in Clause
8.5.
8.5 Save as provided in Clause 8.4, with regard to the amount payable
under Clause 3.2 and other adjustment payments to be paid at or after
Completion, if the Purchaser considers it will be required by law to
make any deduction or withholding on account of any tax, the Purchaser
shall notify the Seller as soon as reasonably practicable, and in any
event eight (8) Business Days prior to Completion, and the Parties
shall meet within two (2) Business Days of such notice. If,
notwithstanding such meeting, the Purchaser still considers it is
required to make any deduction or withholding as aforesaid the
Purchaser shall make such deduction or withholding in respect of such
amount payable under Clause 3.2 and such other adjustment payments and
shall:
(a) pay any such tax or other amount as required by law; and
Exhibit 4.49-23
(b) as soon as practicable after making such payment, deliver to the
Seller a certificate of tax deduction or other comparable
evidence as provided by law of such deduction, withholding or
payment and of the remittance thereof to the relevant taxing or
other authority.
The payment of any such amount to the relevant taxing or other
authority by the Purchaser shall be a good discharge for the
Purchaser with respect to the amount so paid and the Purchaser's
liability with respect to the sum giving rise to the deduction or
withholding shall be limited to payment of the net sum after such
deduction or withholding.
9. INDEMNITIES
9.1 (a) Subject to the limitations and exclusions of liability in Clause
7, which shall apply mutatis mutandis to the indemnity in this Clause
9.1(a), and to Clauses 9.1(b) and 9.2, the Seller shall be responsible
for and indemnify, defend and hold harmless the Purchaser from and
against all costs, charges, expenses, liabilities and obligations
arising out of or in connection with the Transferred Interest and
applicable to the period prior to the Effective Date.
(b) In respect of the Transferred Interest and subject to Completion
having occurred, the Purchaser shall indemnify, defend and hold
harmless the Seller from and against all costs, charges,
expenses, liabilities and obligations arising out of or in
connection with the Transferred Interest and applicable to the
period on and after the Effective Date, except where and to the
extent such costs, charges, expenses, liabilities or obligations
arise, or are increased, by reason of any act or omission, or
transaction, or breach of any legal or contractual obligation on
the part of the Seller, including a breach of the Seller's
Warranties otherwise than in the ordinary and proper course of
business.
9.2 Without prejudice to any limitations and exclusions and other
provisions in this Agreement, from the Completion Date and only
insofar as the same relate to the Transferred Interest, the Purchaser
shall at its cost and expense perform and be responsible for and shall
indemnify and hold the Seller harmless against:
(a) all Abandonment Liabilities incurred in relation to the
Transferred Interest;
(b) all Environmental Liabilities incurred in relation to the
Transferred Interest; and
(c) all EPC Liabilities incurred in relation to the Transferred
Interest.
Notwithstanding termination of this Agreement following Completion,
the indemnity in this Clause 9.2 is intended to survive termination
and to be binding upon the Purchaser, its successors and assignees and
enforceable by the Seller for so long as and until all the Abandonment
Liabilities, Environmental Liabilities and EPC Liabilities relating to
the Transferred Interest have been fully discharged and all assets,
installations, facilities, equipment, pipelines or other property have
been entirely removed and the statutory limitation period applicable
to any Abandonment Liabilities, Environmental Liabilities and EPC
Liabilities has expired.
Exhibit 4.49-24
9.3 The Seller confirms, subject to Clause 8.5, that all moneys due to
TUPNI and Brasoil up to Completion in relation to the Transferred
Interest shall be repaid at Completion as provided in Clause 6.2(e)
and, as from Completion, the Seller shall indemnify and hold the
Purchaser harmless from any claim of, or liability to, TUPNI and/or
Brasoil in respect of any advances and any other amounts due and owing
to TUPNI and/or Brasoil to the extent the same are attributable to the
Transferred Interest.
10. NOTICES
10.1 Any notice pursuant to this Agreement shall be in writing and may be
given by facsimile or letter, to the Party to be served, at the
address, and for the attention of, the person stated in Clause 10.4,
or such other address as may be given for the purposes of this
Agreement by five (5) Business Days prior written notice to the other
Party.
10.2 A notice by facsimile shall be deemed to be served on the date of
dispatch provided that the date of dispatch is a Business Day and the
notice was sent during usual business hours at the place of receipt,
and a notice sent by post or delivered personally shall be deemed to
be delivered when actually received.
10.3 In proving service:
- by delivery by hand: it shall be necessary only to produce a
receipt for the communication signed by or on behalf of the
addressee;
- by post: it shall be necessary only to prove that the
communication was contained in an envelope which was duly
addressed and posted in accordance with this Clause but, for the
avoidance of doubt, shall not be deemed delivered until actually
received;
- by facsimile: it shall be necessary only to produce the
transmission report bearing the addressee's facsimile number.
10.4 The respective addresses for service are:
To: Seller:
South Atlantic Petroleum Limited
00xx & 00xx Xxxxx
Xxxxx Xxxxxxxx Petroleum Towers
0, Xxxxxx Xxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxxxx
Fax number: (00) 0000 000 0000
Attention of: Managing Director
Exhibit 4.49-25
To: Purchaser:
x/x XXXXX Xxxxxxx
Xxxx 0000, XXXXX Xxxxx
Xx. 0, Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx 000000
The People's Republic of China
Fax number: x00-00-0000-0000
Attention of: Sheng Jianbo and Xxxxx Xxxxxxx
and
c/o: CNOOC Africa (UK) Limited
00xx Xxxxx, Xxxxxxxx Xxxxx
Xxxx Xxxxx
Xxxxxx
XX0X 0XX
Fax Number: x00-00-0000-0000
Attention of: Xxxxxxxx Xxxx
11. COSTS, EXPENSES AND DELAYED PAYMENT
11.1 Each of the Parties shall pay its own costs and expenses in relation
to the preparation and execution of this Agreement and the documents
contemplated hereby or executed pursuant hereto.
11.2 Save as provided in Clause 8, the Purchaser shall be responsible for
payment in a timely fashion of all and any stamp duties, taxes and
charges payable on or in respect of this Agreement and the Completion
Documents.
11.3 In the event of the late payment by a Party of any amount due pursuant
to this Agreement, such Party shall pay further interest on such sums
as may be payable, from and including the date on which a payment is
due to be paid in accordance with the terms of this Agreement until
and excluding the date paid, at five per cent (5%) above the Base
Rate, calculated daily, using simple interest.
12. ANNOUNCEMENTS
12.1 Neither Party, nor any Affiliate of either Party, shall issue or make
or procure the making or issue of any press release, public
announcement or statement regarding this Agreement or any matter the
subject of this Agreement, without the prior written consent of the
other Party, unless it is necessary for the Party, or such Affiliate
to make such press release, public announcement or statement in order
to comply with a legal or statutory obligation to include information
in published audited accounts, or with the requirement of a competent
government agency or other regulatory body, or a recognised stock
exchange on which the Party, or such Affiliate has its shares listed,
or an unlisted securities market in which its shares are dealt, in
which event the Party,
Exhibit 4.49-26
or such Affiliate making such press release, public announcement or
statement shall use all reasonable efforts to provide (or in the case
of its Affiliate procure its Affiliate to provide) a copy of the same
to the other Party as soon as practicable prior to publication.
12.2 Notwithstanding the foregoing, in no event prior to Completion shall
any press release, public announcement or statement made by a Party or
any Affiliate of either Party as permitted in Clause 12.1, contain any
reference to the Consideration unless required by the requirements of
a recognised stock exchange on which the Purchaser or its Affiliate is
listed.
13. ASSIGNMENT
13.1 Prior to Completion, none of the rights, liabilities and obligations
of either Party under this Agreement are assignable except with the
prior written consent of the other Party, provided that following
Completion either Party may assign its rights, liabilities and
obligations under this Agreement subject to obtaining the prior
written consent of the other Party, such consent not to be
unreasonably withheld.
13.2 This Agreement shall enure for the benefit of and be binding upon the
respective successors and assigns of the Parties.
14. CONFIDENTIALITY
14.1 The terms of this Agreement, and all information disclosed to the
Purchaser relating to the Transferred Interest, shall be held
confidential by the Purchaser and shall not be divulged in any way to
any third party without the prior written approval of the Seller;
provided, however, that the Purchaser may disclose such terms, without
such approval, to:
(a) any outside professional advisers or consultants, upon obtaining
a similar undertaking of confidentiality (but excluding this
proviso) from such advisers or consultants;
(b) any bank or financial institution from whom the Purchaser is
seeking or obtaining finance, upon obtaining a similar
undertaking (but excluding this proviso) from such bank or
institution;
(c) the extent required by any applicable statute, or the
requirements of any recognised stock exchange in compliance with
its rules and regulations;
(d) any employees or agents of the Purchaser, or any Affiliate of the
Purchaser, upon obtaining a similar undertaking of
confidentiality from such Affiliate (but excluding this proviso);
(e) any government agency lawfully requesting such information
including for the purpose of obtaining requisite regulatory
approvals;
(f) any court of competent jurisdiction or expert acting in pursuance
of its powers;
(g) to the extent necessary under any provisions of the PSC; or
Exhibit 4.49-27
(h) to the extent any of such information is in the public domain.
Provided that neither Party shall, prior to Completion, disclose the
Consideration payable hereunder for the Transferred Interest, unless
required to do so and provided further that in respect of disclosure
by a Party of the Consideration such Party shall promptly give notice
of such disclosure to the other Party detailing the identity of the
person to whom disclosure has been made, save that no such notice
shall be required to be given in the case of disclosure to persons
within (a), (b), (d) and, in the case of (c), to the extent of
applicable statutes or the requirements of the New York or Hong-Kong
stock exchange, and, in the case of (e), to the extent that the
government agency is within China.
14.2 Upon Completion, CNOOC International Ltd. and its Affiliates shall be
released from any obligations under the confidentiality agreement
dated 14 September 2004 between the Seller, CNOOC International Ltd
and [*], and upon Completion the Confidentiality Agreement entered
into between the Parties dated 16 November 2004 shall be terminated,
and upon Completion, the Purchaser shall be released from the
restrictions on disclosure in Clause 14.1 to the extent that any of
the information is governed by any confidentiality provisions in the
Completion Documents to which the Purchaser is bound.
14.3 The terms of this Agreement and all information divulged by the
Purchaser to the Seller during the course of negotiation of this
Agreement shall be held confidential by the Seller and shall not be
divulged to any third party without the prior written approval of the
Purchaser; provided, however, that the Seller may disclose such terms,
without such approval, in the same manner as the Purchaser and the
provisions of Clauses 14.1(a) to (h) inclusive shall apply mutatis
mutandis to the Seller, as if herein set out.
15. TERMINATION
15.1 This Agreement may terminate as provided in Clauses 2.5, 2.7(a), 3.3,
or 7.12(b).
15.2 Notwithstanding the termination of this Agreement, the provisions of
Clause 14 shall continue to apply for a period of five years from the
date hereof; and termination shall be without prejudice to any accrued
rights and obligations of the Parties at the date of termination and,
in relation to the enforcement of such rights and obligations, Clauses
17 and 18 shall continue to be binding upon the Parties. Upon
termination prior to Completion, the Seller shall promptly advise, and
withdraw any application for consents and approvals made to the
Minister and NNPC.
16. VARIATION
The terms and conditions of this Agreement shall only be varied by
an agreement in writing signed by each of the Parties which
specifically references this Agreement.
17. GENERAL
17.1 The representations, warranties, undertakings and agreements contained
in this Agreement shall remain in full force and effect after and
notwithstanding Completion (but without prejudice to the provisions of
Clauses 7 and 9).
Exhibit 4.49-28
17.2 No waiver by any Party of any breach of a provision of this Agreement
shall be binding unless made expressly in writing. Further, any such
waiver shall relate only to the breach to which it expressly relates
and shall not apply to any subsequent or other breach.
17.3 This Agreement and the Schedules constitute the entire agreement
between the Parties and supersede all previous agreements,
arrangements or understandings between the Parties relating to the
subject matter of this Agreement.
17.4 Time shall be of the essence in this Agreement.
17.5 The Contracts (Rights of Third Parties) Act 1999 shall not apply to
this Agreement, and no person other than the Parties shall have any
rights to enforce its terms.
17.6 This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one
and the same instrument and shall take effect when each of the Parties
has had delivered to it one or more counterparts duly executed by each
Party.
18. GOVERNING LAW AND ARBITRATION
18.1 This Agreement shall be governed by and construed in accordance with
English law.
18.2 Save for any dispute or matter to be referred to an expert as herein
provided, all disputes arising out of or in connection with this
Agreement, including, without limitation, any question regarding its
existence, interpretation, validity, effectiveness or termination,
shall, if possible, be settled amicably by negotiation between the
Parties pursuant to this Clause 18.2. Upon written notice from any
Party requesting a meeting to settle a dispute, the Parties shall meet
to attempt to settle a dispute. If the dispute is not settled amicably
within a period of twenty (20) days from the receipt of such written
notice, then either Party may refer the dispute to arbitration
pursuant to Clause 18.3. Notwithstanding the foregoing, either Party
may at any time file a request for arbitration but will thereafter
agree to defer taking active steps in that arbitration to enable the
settlement process by negotiation to be completed within the said
period of twenty (20) days. Neither Party shall object to any delay in
pursuing the arbitration proceedings for the duration of the
settlement process.
18.3 (a) If a dispute is not resolved under Clause 18.2 within the said
period of twenty (20) days, then such dispute may be referred by
either Party to, and finally resolved by, arbitration under the
Rules of the London Court of International Arbitration (the "LCIA
Rules") then in force, which LCIA Rules are deemed to be
incorporated by reference in this Clause 18.3. The number of
arbitrators shall be three (3), with one arbitrator to be
appointed by the claimant and a second arbitrator to be appointed
by the defendant. The third arbitrator, who shall act as chairman
of the arbitration, shall be appointed by agreement between the
two (2) arbitrators nominated respectively by the claimant and
the defendant. If the two (2) arbitrators fail to agree on the
appointment of the third arbitrator or if either the claimant or
the defendant fails to appoint its own arbitrator, the President
of the London Court of International Arbitration shall make such
appointments in accordance with the LCIA Rules. The place of
arbitration shall be London, United Kingdom. The language to be
used in the
Exhibit 4.49-29
arbitral proceedings shall be English. The arbitrators shall decide
the dispute in accordance with the governing law of this Agreement.
(b) The Parties expressly agree that the right to make an application
under Section 45 or to appeal under Section 69 of the Arbitration
Xxx 0000 are hereby excluded in respect of any arbitration or
with respect to any award made.
(c) Judgement upon any award made may be entered in any court having
jurisdiction over a Party or the assets of a Party owing the
judgement, or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as
the case may be.
Exhibit 4.49-30
IN WITNESS WHEREOF the duly authorised representatives of the Parties have
executed this Agreement on the day and year first above written.
Signed for and on behalf of
SOUTH ATLANTIC PETROLEUM LIMITED
By: /s/ X.X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: Chairman
Signed for and on behalf of
CNOOC EXPLORATION & PRODUCTION LIMITED
By: /s/ Xx Xxxxxxx
Name: Xx Xxxxxxx
Title: Chairman of CNOOC Limited and Attorney-in-fact for
CNOOC Exploration & Production Limited
Exhibit 4.49-31
SCHEDULE 1
COMPLETION DOCUMENTS
1. Deed of Assignment of PSC interest
2. Novation and Amendment of Operating Agreement
3. Novation and Amendment of Production Co-ordination Agreement
4. Assignment of HOA interests
5. Notice of Assignment
Exhibit 4.49-32
DEED OF ASSIGNMENT OF PSC INTEREST
DEED OF ASSIGNMENT
BETWEEN
SOUTH ATLANTIC PETROLEUM LIMITED
AND
CNOOC EXPLORATION & PRODUCTION LIMITED
Exhibit 4.49-33
THIS DEED OF ASSIGNMENT is made this day of 2006
BETWEEN:-
(1) SOUTH ATLANTIC PETROLEUM LIMITED, a company established under the laws
of the Federal Republic of Nigeria (hereinafter called the "Seller",
which expression shall, where the context so admits, includes its
successors and assigns); and
(2) CNOOC EXPLORATION & PRODUCTION LIMITED, a company established under
the laws of the Federal Republic of Nigeria (hereinafter called the
"Purchaser").
WHEREAS:-
(A) The Seller was the holder of a 60% interest under OPL 246 and,
together with others, has applied for and been granted Oil Mining
Lease 130 ("OML 130").
(B) The Federal Government of Nigeria has, through the Nigerian National
Petroleum Corporation ("NNPC"), exercised its right to acquire from
the Seller a 50% interest in OML 130.
(C) NNPC has entered into a Production Sharing Contract (the "PSC") to
govern the funding and operations related to NNPC's 50% interest in
OML 130 with the Seller as the Contractor and Total Upstream Nigeria
Limited ("Total") as the Operator (as the terms "Contractor" and
"Operator" are defined in the PSC), with the Seller holding an 100%
Contractor party interest.
(D) The Seller desires to assign and the Purchaser desires to receive
ninety per cent (90%) of the Seller's Contractor party interest under
the PSC (hereinafter referred to as the "Transferred Interest").
(E) NNPC has granted its consent and approval to the assignment to the
Purchaser by the Seller of the Transferred Interest.
IT IS HEREBY AGREED:-
1. The Seller hereby assigns to the Purchaser and the Purchaser hereby
accepts, free from all liens, charges, encumbrances and third party
rights, the Transferred Interest and all of the rights, title and
interest, privileges, benefits, liabilities, duties, burdens and
obligations attaching to and forming part of the Transferred Interest.
2. As a result of this Deed of Assignment, the Contractor party interests
in the PSC shall be as follows:
Company Interest
------- --------
The Purchaser 90%
The Seller 10%
Exhibit 4.49-34
3. This Deed shall be governed by Nigerian law.
IN WITNESS WHEREOF, the parties have duly executed this Deed of Assignment as
of the day and year first written above.
The Common Seal of
SOUTH ATLANTIC PETROLEUM COMPANY LIMITED
was hereunto affixed in
the presence of:
------------------------------------------
Director
------------------------------------------
Director/Secretary
The Common Seal of CNOOC EXPLORATION & PRODUCTION LIMITED\
was hereunto affixed
in the presence of:
------------------------------------------
Director
------------------------------------------
Director/Secretary
Exhibit 4.49-35
NOVATION AND AMENDMENT OF OPERATING AGREEMENT
DATED 2006
---------------------------------------------
CNOOC EXPLORATION & PRODUCTION LIMITED
and
SOUTH ATLANTIC PETROLEUM LIMITED
and
TOTAL UPSTREAM NIGERIA LIMITED
----------------------------------------------------
NOVATION AND AMENDMENT AGREEMENT
in relation to the Operating Agreement relating
to the PSC for XXX000, Xxxxxxx
----------------------------------------------------
Exhibit 4.49-36
THIS AGREEMENT is made the ________ day of ____________________ 2006
BETWEEN:
(1) CNOOC EXPLORATION & PRODUCTION LIMITED, a company established under
the laws of the Federal Republic of Nigeria, with its registered
office at 00x, Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
("CNOOC");
(2) SOUTH ATLANTIC PETROLEUM LIMITED a corporation organised and existing
under the laws of Nigeria, with its registered office at 11th and 12th
Floor, South Atlantic Petroleum Towers, 0 Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxx Xxxxxx, Xxxxx ("XXXXXXX"); and
(3) TOTAL UPSTREAM NIGERIA LIMITED a corporation organised and existing
under the laws of Nigeria, with its registered office at Xx 00 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx ("XXXXX"),
being referred to collectively as the "Parties" and individually as a "Party".
WHEREAS
(A) NNPC, SAPETRO (as Contractor) and TUPNI (as Operator) entered into a
production sharing contract (the "PSC") dated 25 April 2005 governing
the funding and operations relating to NNPC's fifty percent (50%)
interest in OML 130, with SAPETRO holding a one hundred percent (100%)
contractor party interest.
(B) SAPETRO and TUPNI entered into an operating agreement (the "PSC JOA"),
also dated 25 April 2005 for the purpose of defining their respective
rights and obligations with respect to operations under the PSC.
(C) Following receipt of NNPC's approval thereto in accordance with clause
18 of the PSC, SAPETRO has, by a deed of assignment of even date
herewith, assigned to CNOOC a ninety percent (90%) interest as
Contractor in and under the PSC.
(D) The Parties desire that CNOOC shall become a party to the PSC JOA and
that it shall enjoy all rights and incur all obligations arising in
relation to a 90% Participating Interest under the PSC JOA (the
"Transferred Interest").
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
Terms and expressions defined in the PSC JOA shall, unless the
context otherwise requires, bear the same meanings in this Agreement.
2. TRANSFER
2.1 SAPETRO and TUPNI novate the PSC JOA, insofar as it relates to the
Transferred Interest, in favour of CNOOC, and SAPETRO assigns to CNOOC
all of its rights,
Exhibit 4.49-37
benefits and interest in respect of the Transferred Interest under the
PSC JOA, and CNOOC accepts such novation and assignment subject to the
terms of this Agreement.
2.2 Article 3.2(a) of the PSC JOA shall be amended to read as follows:
"The Participating Interests of the Non-Operators are:
Company Participating Interest
SAPETRO 10%
CNOOC 90%"
2.3 Article 17 of the PSC JOA shall be amended as follows: after "by
giving written notice thereof to all other Parties", the following
shall be inserted:
"CNOOC Exploration & Production Limited:
00x, Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
Fax no: [ ]
Attention: [ ]"
2.4 Section 1.6.6 of Exhibit "A" - Accounting Procedure of the PSC JOA
shall be amended to read as follows: "If a Non-Operator's advances are
less than its share of cash expenditures, the deficiency shall, at
Operator's option, be added to subsequent cash advance requirements or
be paid by such Non-Operator within ten (10) Days following the
receipt of Operator's billing to such Non-Operator for such
deficiency".
2.5 It is recognised between SAPETRO and CNOOC that of the three
representatives of the Contractor to be appointed to the Management
Committee pursuant to clause 15 of the HOA, CNOOC shall be entitled to
appoint two such representatives and SAPETRO one such representative.
3. CONTINUATION
Save as expressly provided in this Agreement, the provisions of the
PSC JOA shall remain in full force and effect and binding on the
parties thereto.
4. MUTUAL UNDERTAKINGS IN RESPECT OF CNOOC
The Parties to this Agreement agree that with effect from the date
hereof:
4.1 CNOOC undertakes to each of SAPETRO and TUPNI to observe, perform,
discharge and be bound by all liabilities and obligations of SAPETRO
arising under the PSC JOA to the extent they are attributable to the
Transferred Interest arising before, on or after the date hereof;
Exhibit 4.49-38
4.2 The other Parties shall release and discharge SAPETRO from its
liabilities and obligations in respect of the Transferred Interest
transferred by SAPETRO and assumed by CNOOC pursuant to clause 4.1
above, and shall accept the liabilities and obligations of CNOOC in
the place thereof but only insofar as the said liabilities and
obligations relate to the Transferred Interest and CNOOC undertakes to
indemnify (on a full indemnity basis) and hold harmless TUPNI (solely
so far as concerns the PSC JOA) in respect of any loss, damage,
proceedings, injury, claim, expense or cost (including legal cost) for
which SAPETRO would have been liable but for the release and discharge
referred to herein.
5. MISCELLANEOUS
5.1 This Agreement shall be treated as constituting all actions, consents,
confirmations, agreements and undertakings required under the PSC JOA
in relation to the assignment of the Transferred Interest and shall
take effect notwithstanding any provision to the contrary contained in
the PSC JOA.
5.2 Nothing contained in this Agreement shall prejudice the rights and
obligations of CNOOC and SAPETRO under any other agreement between
them in respect of the Transferred Interest.
6. THIRD PARTY RIGHTS
No person other than a Party may enforce this Agreement by virtue of
the Contracts (Rights of Third Parties) Xxx 0000.
7. COUNTERPARTS
This Agreement may be executed in one or more counterparts but shall
not be effective until each Party has had delivered to it one or more
counterparts executed by each of the other Parties. Each counterpart
shall constitute an original of this Agreement but all the
counterparts together shall constitute and are the same agreement.
8. GOVERNING LAW AND JURISDICTION
The provisions of Article 18 of the PSC JOA concerning applicable law
and dispute resolution shall apply to this Agreement mutatis
mutandis.
Exhibit 4.49-39
IN WITNESS whereof the Parties have executed this Agreement on the day and
year first above written.
Signed for and on behalf of
CNOOC EXPLORATION & PRODUCTION LIMITED
By ________________________________
Name ________________________________
Title ________________________________
Signed for and on behalf of
SOUTH ATLANTIC PETROLEUM LIMITED
By ________________________________
Name ________________________________
Title ________________________________
Signed for and on behalf of
TOTAL UPSTREAM NIGERIA LIMITED
By ________________________________
Name ________________________________
Title ________________________________
Exhibit 4.49-40
NOVATION AND AMENDMENT OF PRODUCTION CO-ORDINATION AGREEMENT
DATED 2006
---------------------------------------------
CNOOC EXPLORATION & PRODUCTION LIMITED
and
SOUTH ATLANTIC PETROLEUM LIMITED
and
TOTAL UPSTREAM NIGERIA LIMITED
and
BRASOIL OIL SERVICES COMPANY NIGERIA LIMITED
----------------------------------------------------
NOVATION AND AMENDMENT AGREEMENT
in relation to the Production Co-ordination Agreement
for OML 130, Nigeria
----------------------------------------------------
Exhibit 4.49-41
THIS AGREEMENT is made the ________ day of ____________________ 2006
BETWEEN:
(1) CNOOC EXPLORATION & PRODUCTION LIMITED a company established under the
laws of the Federal Republic of Nigeria with its registered office at
00x, Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx ("CNOOC");
(2) SOUTH ATLANTIC PETROLEUM LIMITED a corporation organised and existing
under the laws of Nigeria, with its registered office at 11th and 12th
Floor, South Atlantic Petroleum Towers, 0 Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxx Xxxxxx, Xxxxx ("SAPETRO");
(3) TOTAL UPSTREAM NIGERIA LIMITED a corporation organised and existing
under the laws of Nigeria, with its registered office at Xx 00 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx ("XXXXX"); and
(4) BRASOIL OIL SERVICES COMPANY NIGERIA LIMITED, a corporation organised
and existing under the laws of Nigeria with its registered office at
Xxxx 0000, Xxxxxx Xxxxx Street, Victoria Island, Lagos ("BRASOIL"),
being referred to collectively as the "Parties" and individually as a "Party".
WHEREAS
(A) NNPC, SAPETRO and TUPNI have entered into the PSC dated 25 April 2005.
(B) SAPETRO and TUPNI have entered into the PSC JOA dated 25 April 2005.
(C) SAPETRO, TUPNI and BRASOIL have entered into a production
co-ordination agreement dated 26 April 2005 (the "PCA").
(D) Following receipt of NNPC's approval thereto in accordance with clause
18 of the PSC, SAPETRO has assigned to CNOOC on the date hereof a
ninety percent (90%) interest as contractor in and under the PSC and
CNOOC has become a party to the PSC JOA with a ninety percent (90%)
participating interest thereunder (together the "Transferred
Interest").
(E) The Parties desire that CNOOC shall become a party to the PCA and that
it shall enjoy all rights and incur all obligations under the PCA
arising in relation to the Transferred Interest and its consequential
rights under the PCA as a PSC Contractor and as part of the PSC
Contractor Group.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
Terms and expressions defined in the PCA shall, unless the context
otherwise requires, bear the same meanings in this Agreement.
Exhibit 4.49-42
2. TRANSFER
2.1 SAPETRO, TUPNI and BRASOIL novate the PCA, insofar as it relates to
the Transferred Interest, in favour of CNOOC, and SAPETRO assigns to
CNOOC all of its rights, benefits and interest in respect of the
Transferred Interest under the PCA, and CNOOC accepts such novation
and assignment subject to the terms of this Agreement.
2.2 Article 1.1 of the PCA shall be amended as follows:
(a) the definition of "Party" shall read: "(q) "Party" means either
SAPETRO, TUPNI, BRASOIL or CNOOC and/or any of their respective
successors and assignees, as signatory of this PCA; "Parties"
shall be construed accordingly."
(b) the definition of "PSC Contractor" shall read "(z) "PSC
Contractor" means SAPETRO, CNOOC and their successor(s) and
assignee(s) acting as contractor of the PSC as defined therein
and pursuant thereto".
(c) the definition of "PSC Contractor Group" shall read "(aa) "PSC
Contractor Group" means SAPETRO, CNOOC and TUPNI in their
respective capacities as Contractor and Operator under the PSC".
2.3 Article 11.1 of the PCA shall be amended and the following shall be
inserted below "by giving written notice thereof to all other
Parties":
"CNOOC Exploration & Production Limited:
00x, Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
Fax: [ ]
Attention: [ ]"
3. CONTINUATION
Save as expressly provided in this Agreement, all other provisions of
the PCA shall remain in full force and effect and binding on the
parties thereto.
4. MUTUAL UNDERTAKINGS IN RESPECT OF CNOOC
The Parties to this Agreement agree that with effect from the date
hereof:
4.1 CNOOC undertakes to each of SAPETRO, TUPNI and BRASOIL to observe,
perform, discharge and be bound by all liabilities and obligations of
SAPETRO arising under the PCA to the extent they are attributable to
the Transferred Interest arising before, on or after the date hereof;
4.2 The other Parties shall release and discharge SAPETRO from its
liabilities and obligations in respect of the Transferred Interest
transferred by SAPETRO and assumed by CNOOC pursuant to clause 4.1
above, and shall accept the liabilities and obligations of CNOOC in
the place thereof but only insofar as the said liabilities and
obligations relate to the Transferred Interest and CNOOC undertakes to
indemnify (on a full indemnity basis) and hold harmless each of TUPNI
and BRASOIL (solely so far
Exhibit 4.49-43
as concerns the PCA) in respect of any loss, damage, proceedings,
injury, claim, expense or cost (including legal cost) for which
SAPETRO would have been liable but for the release and discharge
referred to herein.
5. MISCELLANEOUS
5.1 This Agreement shall be treated as constituting all actions, consents,
confirmations, agreements and undertakings required under the PCA in
relation to the assignment of the Transferred Interest and shall take
effect notwithstanding any provision to the contrary contained in the
PCA.
5.2 Nothing contained in this Agreement shall prejudice the rights and
obligations of CNOOC and SAPETRO under any other agreement between
them in respect of the Transferred Interest.
6. THIRD PARTY RIGHTS
No person other than a Party may enforce this Agreement by virtue of
the Contracts (Rights of Third Parties) Xxx 0000.
7. COUNTERPARTS
This Agreement may be executed in one or more counterparts but shall
not be effective until each Party has had delivered to it one or more
counterparts executed by each of the other Parties. Each counterpart
shall constitute an original of this Agreement but all the
counterparts together shall constitute and are the same agreement.
8. GOVERNING LAW AND JURISDICTION
The provisions of Article 12 of the PCA concerning applicable law and
dispute resolution shall apply to this Agreement mutatis mutandis.
Exhibit 4.49-44
IN WITNESS whereof the Parties have executed this Agreement on the day and
year first above written.
Signed for and on behalf of
CNOOC EXPLORATION & PRODUCTION LIMITED
By ________________________________
Name ________________________________
Title ________________________________
Signed for and on behalf of
SOUTH ATLANTIC PETROLEUM LIMITED
By ________________________________
Name ________________________________
Title ________________________________
Signed for and on behalf of
TOTAL UPSTREAM NIGERIA LIMITED
By ________________________________
Name ________________________________
Title ________________________________
Signed for and on behalf of
BRASOIL OIL SERVICES COMPANY NIGERIA LIMITED
By ________________________________
Name ________________________________
Title ________________________________
Exhibit 4.49-45
ASSIGNMENT OF HOA
From: South Atlantic Petroleum Limited
To: CNOOC EXPLORATION & PRODUCTION LIMITED
00x, Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
[Completion Date]
Dear Sirs
OML 130
Following completion of the assignment of the Transferred Interest, being a
ninety per cent (90%) interest of the Contractor (as defined in the PSC) in
and under the Production Sharing Contract dated 25 April 2005 relating to OML
130 (the "PSC"), together with all rights and obligations under the Operating
Agreement and the Production Co-ordination Agreement, we wish to assign to you
the corresponding rights under the Heads of Agreement dated 25 April 2005
entered into between Nigerian National Petroleum Corporation, Total Upstream
Nigeria Limited, Brasoil Oil Services Company Nigeria Limited and ourselves
(the "HOA").
Accordingly, we hereby assign to CNOOC Exploration & Production Limited all of
our rights, interests and benefits arising under the HOA in so far as, and to
the extent that, such rights, interests and benefits relate to the Transferred
Interest.
The assignment hereinbefore referred to shall include, without limitation, the
right of CNOOC Exploration & Production Limited to nominate two of the three
representatives of Contractor on the Management Committee, all as referred to
in Clause 15 of the HOA.
Yours faithfully
____________________________________________
Managing Director
SOUTH ATLANTIC PETROLEUM LIMITED
We hereby accept the assignment of the HOA as referred to above.
____________________________________________
For and on behalf of
CNOOC EXPLORATION & PRODUCTION LIMITED
Exhibit 4.49-46
NOTICE OF ASSIGNMENT
From: South Atlantic Petroleum Limited
To: Parties to the HOA
Dear Sirs
Re: Heads of Agreement dated 25 April 2005 (the "HOA")
We hereby notify you that, following the completion of the assignment by
SAPETRO of a ninety per cent (90%) interest of the Contractor under the
Production Sharing Contract of 25 April 2005 to CNOOC Exploration & Production
Limited (the "PSC Interest"), we have assigned to CNOOC Exploration &
Production Limited all of our rights, interests and benefits under the HOA
insofar as, and to the extent that, such rights, interests and benefits relate
to the PSC Interest, the Production Co-ordination Agreement and the Operating
Agreement. The above assignment includes the right of CNOOC Exploration &
Production Limited to nominate two of the three representatives of the
Contractor on the Management Committee under the PSC.
Yours faithfully
____________________________________________
Managing Director
South Atlantic Petroleum Limited
Exhibit 4.49-47
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
48
PART A
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Where any statement set out below is qualified by the words "as far as the
Seller is aware" or "to the best of the Seller's knowledge and belief", that
statement shall mean that it is made after due and careful enquiry of the
directors, officers and employees of the Seller and the asset manager of OML
130 in TUPNI.
The representations and warranties of the Seller in this Part A shall be
repeated at Completion save for the representations and warranties set out in
paragraphs 4, 5, 7, 11 and 12.
1. The Seller is a party to the PSC and having all of the rights,
interests and obligations as Contractor as that term is defined in the
PSC.
2. The Seller is the legal and beneficial owner of the Transferred
Interest and the Transferred Interest is free from any Encumbrances
and the Seller is not a party to any agreement or commitment to create
any Encumbrance over the Transferred Interest and subject to the
satisfaction of the conditions precedent in Clause 2.3, the Seller has
the right to transfer and assign the full legal and beneficial
ownership in the Transferred Interest to the Purchaser.
3. The Seller has not committed any breach of and is not in default under
the PSC, the Operating Agreement, the HOA, the Production
Co-ordination Agreement or any other material contracts relating
thereto including but not limited to the Gas Utilisation Agreement and
the Seller is not in breach of clause 23.1(e) of the PSC.
4. The Seller has not received notice and so far as the Seller is aware
none of the other parties to the PSC, the Operating Agreement and the
Production Co-ordination Agreement have committed any breach of, or
are in default under, the PSC, the Operating Agreement, the HOA and
the Production Co-ordination Agreement or any other material contracts
relating thereto including but not limited to the Gas Utilisation
Agreement, and the contracts relating to the development of the Akpo
field which breach or default, is of a material nature and subsisting.
5. The Seller is not party to, and to the best of the Seller's knowledge
and belief no other party to the PSC, the Operating Agreement, OML 130
and the Production Co-ordination Agreement is a party to, any
litigation or arbitration or administrative proceedings or to any
dispute in relation to, and which is likely to have a material adverse
affect on, the Transferred Interest and the Seller is not aware that
any such litigation, arbitration, administrative proceedings or
dispute are threatened and the Seller is not aware that any judgement
or award has been issued by, or is pending before, any court, tribunal
or governmental agency which would materially affect the Transferred
Interest.
6. The Seller is duly incorporated and validly existing under the laws of
the Federal Republic of Nigeria.
7. The Data Room Documents contain all the material agreements affecting
the Transferred Interest. In respect of the Data Room Documents and
Data provided:
49
7.1 the copies of the Data Room Documents delivered to or made
available for inspection by the Purchaser prior to the execution
hereof are so far as the Seller is aware, true and accurate;
7.2 all Data that has been supplied or made available to the
Purchaser or to its advisers by or on behalf of the Seller and
which appears on its face to have been supplied to the Seller
from a source other than the Seller has not been altered by the
Seller and so far as the Seller is aware, was supplied from such
source; and
7.3 all Data that has been supplied or made available to the
Purchaser or to its advisers by or on behalf of the Seller which
originates from the Seller (save to the extent that this has been
produced or taken from data, information or documents originating
from another source) was produced in good faith at the time that
it was created and, to the extent that it is factual in content,
is based on facts which, to the knowledge, information and belief
of the Seller, were at the time it was produced, true and fair in
all material respects.
8. Save as provided in the PSC and legislation applicable to the PSC,
there are no agreements which restrict the Seller's ability to dispose
of the Transferred Interest to be acquired hereunder.
9. The conditions precedent in Clause 2.3 are the only consents,
approvals and agreements to which the sale and transfer of the
Transferred Interest is subject.
10. The Seller has not done any act or permitted any omission which would
give rise to or could give rise to, cause or be the basis of
revocation, invalidation or termination of the HOA, PSC, OML 130, the
Operating Agreement or the Production Co-ordination Agreement.
11. As far as the Seller is aware, no parties to each of the HOA, PSC, OML
130, the Operating Agreement or the Production Co-ordination Agreement
have done, any act or permitted any omission which would give rise to
or could give rise to, cause or be the basis of revocation,
invalidation or termination thereof or, so far as the Seller is aware,
cause NNPC at the date hereof not to grant its consent and approval to
the transfer and assignment of the Transferred Interest.
12. No sole risk and non-consent operations have been proposed or carried
out by any person in relation to the OML Area and so far as the Seller
is aware no such operations may be proposed and no notices have been
sent by any party to the PSC, HOA or the Operating Agreement in
respect of any sole risk operations.
13. The Seller has not offered, paid, promised to pay, authorised the
payment of, or transferred, money or anything of value to an Official
to secure any improper advantage or benefit in relation to the matters
contemplated by this Agreement or the Transferred Interest, either
directly or indirectly through a third party. "Official" shall mean
and include (i) any officer or employee of FGN or any department,
agency or entity controlled by FGN, or any person acting in an
official capacity on behalf of any such department, agency or entity;
(ii) any political party; (iii) any official of a political party;
(iv) any candidate for political office; or (v) any officer or
employee of
50
a public international organisation such as the United Nations, the
World Bank or the International Monetary Fund.
14. The documents which contain or establish the Seller's constitution
incorporate provisions which authorise, and all necessary corporate
action has been or will prior to the Completion Date be taken to
authorise, the Seller to sign deliver and perform the transactions
contemplated by this Agreement and the Completion Documents. This
Agreement and each of the other Completion Documents to which it is a
party constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms.
15. Upon receipt of the consents and approvals referred to in Clause 2.3
neither the signing and delivery of this Agreement nor the performance
of any of the transactions contemplated by this Agreement will:
15.1 contravene or constitute a default under any provision contained
in any agreement, instrument, law, judgement, order, licence,
permit or consent by which the Seller or any of its assets is
bound or affected; or
15.2 cause any limitation on the Seller or the powers of its directors
whether imposed by or contained in any document which contains or
establishes its constitution or in any law, order, judgement,
agreement, instrument or otherwise, to be exceeded.
16. No order has been made or petition presented or resolution passed for
the winding up of the Seller or for an administration order in respect
of it and no distress, execution or other process has been levied on
any of its assets, nor has any similar procedure existing in Nigeria
occurred. The Seller is not insolvent or unable to pay its debts and
no receiver or manager or other analogous person has been appointed by
any person of its business or assets or part thereof and no power to
make such appointment has arisen.
17. No litigation, arbitration or administrative proceeding or claim,
which might by itself, or together with any other such proceeding or
claim materially and adversely affect the Seller's ability to observe
or perform its obligations under this Agreement and the agreements
contemplated hereby, is presently in progress or, to the best of the
knowledge, information and belief of the Seller, pending or threatened
against the Seller or any of its assets.
18. No event has occurred which would materially and adversely affect the
Seller's ability to observe or perform its obligations under this
Agreement and the transactions contemplated hereby.
19. All statutory obligations with relation to the conversion of OPL 246
to OML 130 have been complied with.
20. The PSC, the Operating Agreement, OML 130, the Production
Co-ordination Agreement and the HOA and all of the rights and
interests thereunder or deriving therefrom are in full force and
effect.
51
21. So far as the Seller is aware, no Environmental Claim is pending or
has been made against itself or the operator in relation to the
Transferred Interest. "Environmental Claim" means any claim,
proceeding, investigation, demand, action, official warning, abatement
or other order (conditional or otherwise) or any notification or order
requiring compliance with the terms of any Environmental Licence or
Environmental Law. "Environmental Law" includes all or any law,
statute, rule, regulation, treaty, by-law, code of practice, order,
notice, demand, decision of the courts or of any governmental
authority or agency or any other regulatory or other body in Nigeria
relating to the pollution, conservation or protection of the
environment (both natural and built) or of man or any living organisms
supported by the environment or any other matter whatsoever affecting
the environment or any part of it, and "Environmental Licence"
includes any permit, licence, authorisation, consent or other approval
required by any Environmental Law.
52
PART B
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Where any statement set out below is qualified by the words "as far as the
Purchaser is aware" or "to the best of the Purchaser's knowledge, information
and belief", that statement shall be deemed to include an additional statement
that it is after due and careful enquiry, but only within the Purchaser's own
organisation.
The representations and warranties of the Purchaser in this Part B shall be
repeated at Completion.
1. The Purchaser is duly incorporated with limited liability and validity
existing under the laws of Nigeria.
2. The documents which contain or establish the Purchaser's constitution,
incorporate provisions which authorise, and all necessary corporate
action has been or prior to the Completion Date will be taken to
authorise, the Purchaser to sign, deliver and perform the transactions
contemplated by this Agreement.
3. Neither the signing and delivery of this Agreement nor the performance
of any of the transactions contemplated by this Agreement will:
3.1 contravene or constitute a default under any provision contained
in any agreement, instrument, law, judgement, order, licence,
permit or consent by which the Purchaser or any of its assets is
bound or affected; or
3.2 cause any limitation on the Purchaser or the powers of its
directors, whether imposed by or contained in any document which
contains or establishes its constitution or in any law, order,
judgement, agreement, instrument or otherwise, to be exceeded.
4. No event has occurred which would materially and adversely affect the
Purchaser's ability to observe or perform its obligations under this
Agreement and the transaction contemplated hereby.
5. No litigation, arbitration or administrative proceeding or claim,
which might by itself or together with any other such proceeding or
claim materially and adversely affect the Purchaser's ability to
observe or perform its obligations under this Agreement and the
agreements contemplated hereby, is presently in progress or, to the
best of the knowledge, information and belief of the Purchaser,
pending or threatened against the Purchaser or any of its assets.
6. Except as provided in this Agreement, the Purchaser assumes the risk
of description and condition of the Transferred Interest, including
the cost, risk and expense of compliance with all laws, rules, orders
and regulations relating to the environment.
7. The Purchaser has not offered, paid, promised to pay, authorised the
payment of, or transferred, money or anything of value to an Official
to secure any improper advantage or benefit in relation to the matters
contemplated by this Agreement, either
53
directly or indirectly through a third party. "Official" shall mean
and include (i) any officer or employee of FGN or any department,
agency or entity controlled by FGN, or any person acting in an
official capacity on behalf of any such department, agency or entity;
(ii) any political party; (iii) any official of a political party;
(iv) any candidate for political office; or (v) any officer or
employee of a public international organisation such as the United
Nations, the World Bank or the International Monetary Fund.
54
DRAFT: 4 January 2006
SCHEDULE 3
DATA ROOM DOCUMENTS
[*]
55
DRAFT: 4 January 2006
SCHEDULE 4
ESCROW AGREEMENT
ESCROW AGREEMENT
BETWEEN
SOUTH ATLANTIC PETROLEUM LIMITED
CNOOC EXPLORATION & PRODUCTION NIGERIA LIMITED
AND
MEESPIERSON INTERTRUST (SINGAPORE) LTD
(an Approved Trust Company in Singapore, wholly owned by Fortis Bank S.A./N.V.)
56
THIS ESCROW AGREEMENT is made this day of 2006
BETWEEN:
(1) SOUTH ATLANTIC PETROLEUM LIMITED, a company established under the laws
of the Federal Republic of Nigeria (hereinafter called the "Seller");
(2) CNOOC EXPLORATION & PRODUCTION LIMITED, a company established under
the laws of the Federal Republic of Nigeria (hereinafter called the
"Purchaser"); and
(3) MEESPIERSON INTERTRUST (SINGAPORE) LTD, an approved trust company in
Singapore, wholly owned by Fortis Bank S.A./N.V. and having its
registered office at 00 Xxxxxx Xxxxxx, #00-00 Xxxxxxxxx 048 942
(hereinafter called the "Escrow Agent").
WHEREAS:
(A) The Seller and the Purchaser have entered into the Sale and Purchase
Agreement pursuant to which it is provided that the Purchaser shall
pay an amount of United States Dollars two hundred and thirty five
million (US$235,000,000.00) into the Escrow Account.
(B) Upon Completion the Deposit shall be paid by the Escrow Agent to the
Seller as herein provided, save that if Completion does not occur as
provided in the Sale and Purchase Agreement then such amount shall be
paid by the Escrow Agent to the Purchaser or Seller as applicable as
herein provided.
(C) The Purchaser and the Seller have jointly appointed the Escrow Agent
and the Escrow Agent has agreed to act as agent and to receive and pay
out of escrow all of the amounts in the Escrow Account, together with
interest earned thereon, subject to and upon the terms of this
Agreement.
IT IS HEREBY AGREED:
1. DEFINITIONS
1.1 In this Agreement and its recitals, words defined in the Sale and
Purchase Agreement shall have the same meaning where used in this
Agreement unless otherwise provided, and the following words and
expressions shall have the meanings set opposite them:
--------------------------------------------- ---------------------------------------------------------
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and
Singapore;
--------------------------------------------- ---------------------------------------------------------
"Deposit" means the sum of United States Dollars two hundred and
thirty-five million (US$235,000,000) to be paid into the
Escrow Account by the Purchaser in accordance with
clause 2.7(a) of the Sale and Purchase
--------------------------------------------- ---------------------------------------------------------
57
--------------------------------------------- ---------------------------------------------------------
Agreement;
--------------------------------------------- ---------------------------------------------------------
"Escrow Account means the United States Dollars interest bearing account
with an account number [*], maintained in the name of
the Escrow Agent with Fortis Bank S.A./N.V., Singapore
branch and with payment details as follows:
USD
Pay to: [*]
For account: [*]
In Favour of: [*]
Account No: [*]
(under telex advice to Fortis Bank SA/NV Singapore
Branch, Attn: Xxxx Xxx);
--------------------------------------------- ---------------------------------------------------------
"Escrow Completion Notice" means a notice in the form attached to this Agreement
given by the Seller to the Escrow Agent and signed by a
director of each of the Seller and the Purchaser
confirming that Completion has occurred;
--------------------------------------------- ---------------------------------------------------------
"Escrow ITC Security Notice" means a notice in the form attached to this Agreement
given by the Seller or the Purchaser to the Escrow Agent
and signed by a director of each of the Seller and the
Purchaser confirming the instructions for payment of the
ITC Security;
--------------------------------------------- ---------------------------------------------------------
"ITC Security" means the sum of United States Dollars [*];
--------------------------------------------- ---------------------------------------------------------
"LIBOR" means the display rate per annum of the offered
quotation for deposits in US dollars for a period of two
weeks or one month at the option of the Escrow Agent
which appears on Telerate Page 3750 (or such other page
as the Escrow Agent shall specify with the agreement of
the Seller and the Purchaser) at or about 11.00 am
London time on the Business Day preceding the date of
this Agreement and thereafter on the Business Day
preceding the first day of each period for which
interest is calculated hereunder;
--------------------------------------------- ---------------------------------------------------------
"Party" means the Seller, the Purchaser or the Escrow Agent and
"Parties" means all of the Seller, the Purchaser and the
Escrow Agent;
--------------------------------------------- ---------------------------------------------------------
"Purchaser's Escrow Termination Notice" means a notice in the form attached to this Agreement
given by the
--------------------------------------------- ---------------------------------------------------------
58
--------------------------------------------- ---------------------------------------------------------
Purchaser to the Escrow Agent, signed by a director of
each of the Seller and the Purchaser, confirming that
Completion has not occurred due to the termination of
the Sale and Purchase Agreement under clause 2.5, 3.3 or
7.12(b) thereof or due to the breach by the Seller of
its obligations under the Sale and Purchase Agreement
and that the Deposit is repayable to the Purchaser;
--------------------------------------------- ---------------------------------------------------------
"Sale and Purchase Agreement" means the sale and purchase agreement of even date
entered into by the Seller and the Purchaser;
--------------------------------------------- ---------------------------------------------------------
"Seller's Escrow Termination Notice" means a notice in the form attached to this Agreement
given by the Seller to the Escrow Agent, signed by a
director of each of the Seller and the Purchaser,
confirming that Completion has not occurred due to the
breach by the Purchaser of its obligations under the
Sale and Purchase Agreement and that the Deposit is
payable to the Seller; and
--------------------------------------------- ---------------------------------------------------------
"Specimen Signatures" means the specimen signatures (as attached to this
Agreement) of the directors of each of the Seller and
the Purchaser notified to the Escrow Agent by each of
the Seller and the Purchaser respectively.
--------------------------------------------- ---------------------------------------------------------
1.2 All references to Clauses, Recitals and Schedules are, unless
otherwise expressly stated, references to clauses of and recitals and
schedules to this Agreement.
1.3 The headings in this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement.
1.4 Any reference to any statute or statutory instrument in this Agreement
shall be a reference to the same as amended, consolidated or extended,
supplemented or re-enacted from time to time or at any time prior to
the date of this Agreement, and shall include any orders, regulations,
instruments or other subordinate legislation made under the relevant
statute.
1.5 Except where the context otherwise requires, words denoting the
singular include the plural and vice versa; words denoting any gender
include all genders; words denoting persons include firms and
corporations and vice versa.
1.6 The word "including" shall be construed without limitation.
1.7 The Schedules form part of this Agreement and shall be construed and
shall have full force and effect as if expressly set out in the body
of this Agreement, save that in the event of any conflict between the
Schedules and any provision contained in the Clauses of this Agreement
the latter shall prevail.
59
DRAFT: 4 January 2006
2. PAYMENT INTO ESCROW ACCOUNT
2.1 The Purchaser shall pay the Deposit into the Escrow Account in
accordance with clause 2.7(a) of the Sale and Purchase Agreement.
2.2 The Escrow Agent hereby agrees that:
(a) it shall hold the Deposit in the Escrow Account until it receives
the Escrow Completion Notice, the Purchaser's Escrow Termination
Notice or the Seller's Escrow Termination Notice in accordance
with this Agreement; and
(b) if an Escrow Completion Notice has been given under Clause
3.1(a), it shall hold the ITC Security in the Escrow Account
until it receives the Escrow ITC Security Notice in accordance
with this Agreement.
3. TERMS OF ESCROW
3.1 It is agreed that the amounts specified below shall be paid out of the
Escrow Account by the Escrow Agent upon the first to occur of the
following and in the manner and to the relevant Party as provided
below:
(a) upon receipt by the Escrow Agent of the Escrow Completion Notice
duly signed by a director of each of the Seller and the
Purchaser, the Escrow Agent shall pay: (1) an amount equal to the
Deposit less the ITC Security to the Seller; and (2) all interest
accrued on the Deposit to the Purchaser;
(b) all amounts paid into the Escrow Account by the Purchaser under
the Sale and Purchase Agreement as provided in Clause 2, together
with all interest accrued thereon as provided in Clause 5, shall
be paid to the Seller upon receipt by the Escrow Agent of the
Seller's Escrow Termination Notice duly signed by a director of
each of the Seller and the Purchaser; and
(c) all amounts paid into the Escrow Account by the Purchaser under
the Sale and Purchase Agreement as provided in Clause 2, together
with all interest accrued thereon as provided in Clause 5, shall
be paid to the Purchaser upon receipt by the Escrow Agent of the
Purchaser's Escrow Termination Notice duly signed by a director
of each of the Purchaser and the Seller.
3.2 Following payment of the amounts under Clause 3.1(a), the amount of
the ITC Security, together with all interest accrued thereon as
provided in Clause 5, shall be paid to the Seller or to the Purchaser,
as specified in the Escrow ITC Security Notice, upon receipt by the
Escrow Agent of the Escrow ITC Security Notice duly signed by a
director of each of the Purchaser and the Seller.
3.3 (a) Each of the Seller and the Purchaser hereby irrevocably
authorises and instructs the Escrow Agent to make the payment
under Clause 3.1(a), 3.1(b), 3.1(c) or 3.2, as applicable, upon
receipt of the applicable notice or notices by the Escrow Agent
as referred to in Clause 3.1(a), 3.1(b), 3.1(c) or 3.2.
(b) Payment to the Seller under Clause 3.1(a) or 3.1(b) or 3.2 shall
be made by the Escrow Agent to the Seller's bank account number
[*], maintained with MeesPierson Asia Limited.
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DRAFT: 4 January 2006
(c) Payment to the Purchaser under Clause 3.1(a), 3.1(c) or 3.2 shall
be made by the Escrow Agent to the bank account designated by the
Purchaser as follows.
Correspondent Bank: [*]
Chips UID: [*]
Beneficiary Bank: [*]
In favour of: [*]
Account No.: [*]
3.4 The Parties hereby agree that the Escrow Agent may consult with
competent and responsible legal counsel(s) selected by the Escrow
Agent, and shall not be liable for any action taken or omitted by the
Escrow Agent in good faith in accordance with the advice of such
counsel(s).
4. LIABILITY AND INDEMNITY
4.1 The Escrow Agent shall incur no liability as a result of entering into
this Agreement save for any loss or liability caused by the Escrow
Agent's gross negligence or wilful misconduct and without prejudice to
the generality of the foregoing save for verifying that any signatures
conform to the Specimen Signatures (to the extent such original
Specimen Signatures have been provided) the Escrow Agent may, subject
to the following, act in reliance upon any instrument, notice,
request, certificate, approval, consent, document or signature
believed by it to be genuine and may assume that any person purporting
to give receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been duly
authorised to do so. The Escrow Agent shall be entitled to rely upon
any order, judgment, certification, demand, notice, or other written
instrument delivered to it hereunder provided that the Escrow Agent
shall confirm by telephone as soon as reasonably practicable after the
receipt of any such written instrument any signature purported to be
given on behalf of either the Seller or the Purchaser with the
relevant contact person named in respect of the Seller and/or the
Purchaser (as the case may be) in Clause 8.4, but without being
required to take any further action to determine the authenticity,
accuracy or the correctness of any fact stated therein or validity or
the service thereof.
4.2 The Escrow Agent's duties and responsibilities, in its capacity as
such, shall be limited to those expressly set forth in this Agreement,
and except as set forth herein, the Escrow Agent shall not be subject
to, nor obliged to recognise, any other agreement between any or all
of the Parties even though reference thereto may be made herein,
provided however that, with the Escrow Agent's written consent, this
Agreement may be amended at any time or times by an instrument in
writing signed by all the Parties.
4.3 The Escrow Agent shall have no obligation to make any payment to the
Parties or one of the Parties if the making of such a payment would be
unlawful in anyway. If it becomes illegal or impossible for reasons
outside the Escrow Agent's control to carry out any of the provisions
hereof, the Escrow Agent shall incur no liability as a
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DRAFT: 4 January 2006
consequence thereof, but shall use its reasonable endeavours to agree
on alternative solutions jointly with the Parties.
4.4 (a) The Seller and Purchaser shall jointly and severally indemnify
and hold harmless the Escrow Agent from and against any and all
losses, liabilities, claims, actions, damages and expenses,
(including reasonable lawyers' fees and disbursements), arising
out of or in connection with its acting or failing to act in
connection with any of the duties contemplated hereby and against
any loss, liability or expense, including on a solicitor and
client basis the expense of defending itself against any claim or
liability, it may reasonably incur in carrying out the terms of
this Agreement, save for those caused by the Escrow Agent's gross
negligence or wilful misconduct.
(b) This indemnity shall extend to the officers, directors,
employees, agents, representatives or affiliates of the Escrow
Agent save that nothing in this Clause shall indemnify such
persons in respect of such costs, damages, losses and expenses
arising out of gross negligence or wilful misconduct on the part
of the Escrow Agent or its officers, directors, employee, agents,
representatives or affiliates.
4.5 (a) The Seller and the Purchaser severally undertake to execute the
Escrow Completion Notice, the Seller's Escrow Termination Notice,
the Purchaser's Escrow Termination Notice or the Escrow ITC
Security Notice where applicable as required by Clause 3.1 or 3.2
forthwith upon the Seller and the Purchaser having an obligation
to do so as provided in the Sale and Purchase Agreement.
(b) It is acknowledged by the Seller and the Purchaser that, provided
the Party seeking such relief has first sought the signature of
the other Party's director to the relevant notice as detailed in
Clause 4.5(a), it shall be entitled to seek injunctive relief to
enforce the compliance by the Parties with this Clause 4.5 and
the terms of this Agreement.
5. INTEREST
5.1 Subject to Clause 6, in the case that an Escrow Completion Notice has
been given, all interest earned on the Deposit paid into the Escrow
Account shall accrue to the Purchaser, and otherwise all interest
(including on the ITC Security) shall accrue to the Party entitled to
the payment of the amounts paid into the Escrow Account as herein
provided. Such accrued interest shall be payable at the same time as
the payment of the amounts paid into the Escrow Account in accordance
with Clause 3.1(a), 3.1(b), 3.1(c) or 3.2.
5.2 Interest shall accrue on all amounts from time to time standing to the
credit of the Escrow Account from day to day on the basis of a 360 day
year at the rate of LIBOR minus eight (8) basis points and accrued
interest shall be credited by the Escrow Agent to the Escrow Account
on the last Business Day of each calendar month, except when a payment
has to be made out of the Escrow Account, in which case all accrued
interest shall be credited to the Escrow Account immediately prior to
such payment being made.
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DRAFT: 4 January 2006
6. ESCROW AGENT'S FEES
6.1 In consideration of the Escrow Agent agreeing to act in accordance
with the terms of this Agreement, the Escrow Agent shall be entitled
to be paid certain fees, details of which are set out in Schedule 1 to
this Agreement.
6.2 For the avoidance of doubt, the Parties hereby agree that in its
performance of duties set out herein, the Escrow Agent shall be
reimbursed for all reasonable out-of-pocket expenses and legal fees
incurred by the Escrow Agent in connection with the transactions
contemplated by this Agreement.
6.3 All fees (as detailed in Schedule 1), costs and expenses charged by
the Escrow Agent in respect of the Escrow Account and the Escrow Agent
carrying out its obligations hereunder shall be deducted by the Escrow
Agent from any interest earned on the Escrow Account and any sum
deducted as aforesaid shall be retained by the Escrow Agent. The
Escrow Agent shall notify the Parties of all deductions made under
this Clause 6. If the interest earned is insufficient to pay for the
Escrow Agent's fees, the Purchaser and the Seller shall each be
severally liable for fifty per cent (50%) of any unpaid fees due and
payable to the Escrow Agent and shall pay its share of such unpaid
fees within fourteen (14) days of receipt of the Escrow Agent's
invoice together with any applicable sales tax payable thereon. If the
Escrow Agent does not receive its fees within such fourteen (14) day
period, the Seller and the Purchaser hereby agree that the Escrow
Agent shall be entitled to have recourse to the monies in the Escrow
Account and apply such amount as is equal to the amount of any unpaid
fees in payment of such fees.
7. APPLICABLE LAW
7.1 This Agreement shall be governed by and construed in accordance with
English law.
7.2 (a) All disputes arising out of or in connection with this Agreement,
including, without limitation, any question regarding its
existence, interpretation, validity, effectiveness or
termination, may be referred by either Party to, and finally
resolved by, arbitration under the Rules of the London Court of
International Arbitration (the "LCIA Rules") then in force, which
LCIA Rules are deemed to be incorporated by reference in this
Clause 7.2. The number of arbitrators shall be three (3), with
one arbitrator to be appointed by the claimant and a second
arbitrator to be appointed by the defendant. The third
arbitrator, who shall act as chairman of the arbitration, shall
be appointed by agreement between the two (2) arbitrators
nominated respectively by the claimant and the defendant. If the
two (2) arbitrators fail to agree on the appointment of the third
arbitrator or if either the claimant or the defendant fails to
appoint its own arbitrator, the President of the London Court of
International Arbitration shall make such appointments in
accordance with the LCIA Rules. The place of arbitration shall be
London, United Kingdom. The language to be used in the arbitral
proceedings shall be English. The arbitrators shall decide the
dispute in accordance with the governing law of this Agreement.
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DRAFT: 4 January 2006
(b) The Parties expressly agree that the right to make an application
under Section 45 or to appeal under Section 69 of the Arbitration
Xxx 0000 are hereby excluded in respect of any arbitration or
with respect to any award made.
(c) Judgement upon any award made may be entered in any court having
jurisdiction over a Party or the assets of a Party owing the
judgement, or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as
the case may be.
7.3 Notwithstanding Clause 7.2 a Party may apply to any court to seek an
injunction for specific performance of the obligations set out in this
Agreement.
8. NOTICES
8.1 All notices to be given pursuant to this Agreement shall be in writing
and given by facsimile or delivered in person at the address, and
marked for the attention of the person, set out in Clause 8.3 below.
8.2 A notice by facsimile shall be deemed to be served on the date of
dispatch provided that the date of dispatch is a Business Day in the
place of the recipient and the notice was sent during usual business
hours (being between 9am and 5pm) at the place of receipt.
8.3 The address for notices hereunder are as follows:
To: Seller:
00xx & 00xx Xxxxxx
Xxxxx Xxxxxxxx Petroleum Towers
0 Xxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxxxx
Fax number: (00) 0000 000-0000
Attention of: Managing Director
To: Purchaser:
Treasury Department
x/x XXXXX Xxxxxxx
Xx. 0 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx 100027
The Peoples Republic of China
Fax number: (00)-00-00-0000-0000
Attention of: Xx Xxxxx Xiaofeng
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DRAFT: 4 January 2006
To: Escrow Agent
MeesPierson Intertrust (Singapore) Ltd
00 Xxxxxx Xxxxxx
#00-00
Xxxxxxxxx 000 942
Fax number: x(00) 0000 0000
Attention of: Mr Alex van der Zwaard / Xx Xxxxxxxx Dedieu
8.4 The contact persons for the purposes of Clause 4.1 shall be notified
by the Seller to the Escrow Agent within thirty (30) days of the date
hereof, and for the Purchaser shall be Xx Xxxxx Xiaofeng, telephone
number: 00-00-0000-0000.
9. COUNTERPART
This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one
and the same agreement and shall take effect when each of the Parties
has had delivered to it one or more counterparts duly executed by each
of the other Parties.
10. THIRD PARTY RIGHTS
No person other than a Party may enforce this Agreement by virtue of
the Contracts (Rights of Third Parties) Xxx 0000.
65
DRAFT: 4 January 2006
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first written above.
Signed by
For and on behalf of
SOUTH ATLANTIC PETROLEUM LIMITED
Signed by
For and on behalf of
CNOOC EXPLORATION & PRODUCTION LIMITED
Signed by
Xxxxxxxxx Xxxxxx Xxxxxx van der Zwaard
For and on behalf of
MEESPIERSON INTERTRUST (SINGAPORE) LTD
66
DRAFT: 4 January 2006
SCHEDULE 1
Escrow Agent's Fees
The Escrow Agent shall be entitled to Escrow Agent's Fees which shall be
calculated as follows:
Set up fee: USD [*]. This fee is one-off and will cover all
activities that have to be taken by the Escrow
Agent to enter into this Agreement, set up the
account, etc. This amount will be offset
against the quarterly administration fee.
Administration fee: [*]% of the value of the assets per annum,
payable on the first day of each quarter.
For the avoidance of doubt, should ompletion
occur in the middle of a quarter, fees paid in
advance for that quarter shall be taken into
account to offset against the fees payable for
the ITC Security, such fees applicable to the
ITC Security shall continue until such date
when the ITC Security shall be cleared from
the Escrow Account.
Distribution fee: USD [*] per distribution.
67
DRAFT: 4 January 2006
ESCROW COMPLETION NOTICE
[South Atlantic headed notepaper]
Meespierson Intertrust (Singapore) Ltd
00 Xxxxxx Xxxxxx
#00-00
Xxxxxxxxx 048 942
Attention: Mr Alex van der Zwaard / Xx Xxxxxxxx Dedieu
[Date]
Dear Sirs
Re: Escrow Completion Notice pursuant to Escrow Agreement dated [ ]
between South Atlantic Petroleum Limited ("SAPETRO"), CNOOC
Exploration & Production Limited ("CNOOC") and Meespierson Intertrust
(Singapore) Ltd (the "Escrow Agreement")
Capitalised terms used herein and not otherwise defined shall have the
meanings given such terms in the Escrow Agreement.
We hereby confirm that completion of the Sale and Purchase Agreement occurred
on [ ] in accordance with Clause 6 thereof and are giving this notice in
accordance with Clause 3.1(a) of the Escrow Agreement.
We hereby request that the Escrow Agent pays:
(a) an amount equal to the Deposit less the ITC Security to
SAPETRO in accordance with Clause 3.1(a) of the Escrow
Agreement; and
(a) all interest earned on the Deposit to CNOOC in accordance with
Clause 5 of the Escrow Agreement.
Yours faithfully
-----------------------------
For and on behalf of
South Atlantic Petroleum Limited
-----------------------------
For and on behalf of
CNOOC Exploration & Production Limited
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DRAFT: 4 January 2006
SELLER'S ESCROW TERMINATION NOTICE
[South Atlantic headed notepaper]
Meespierson Intertrust (Singapore) Ltd
00 Xxxxxx Xxxxxx
#00-00
Xxxxxxxxx 048 942
Attention: Mr Alex van der Zwaard / Xx Xxxxxxxx Dedieu
[Date]
Dear Sirs
Re: Seller's Escrow Termination Notice pursuant to Escrow Agreement dated
[ ] between South Atlantic Petroleum Limited ("SAPETRO"), CNOOC
Exploration & Production Limited ("CNOOC") and Meespierson Intertrust
(Singapore) Ltd (the "Escrow Agreement")
Capitalised terms used herein and not otherwise defined shall have the
meanings given such terms in the Escrow Agreement.
We hereby confirm that SAPETRO and CNOOC have mutually agreed that completion
of the Sale and Purchase Agreement will not occur due to the breach by CNOOC
of its obligations thereunder and are giving this notice in accordance with
Clause 3.1(b) of the Escrow Agreement. We hereby request that the Escrow Agent
pays all the amounts in the Escrow Account, together with all interest accrued
thereon, to SAPETRO in accordance with Clause 3.1(b) of the Escrow Agreement.
Yours faithfully
-----------------------------
For and on behalf of
South Atlantic Petroleum Limited
-----------------------------
For and on behalf of
CNOOC Exploration & Production Limited
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DRAFT: 4 January 2006
PURCHASER'S ESCROW TERMINATION NOTICE
[CNOOC headed notepaper]
Meespierson Intertrust (Singapore) Ltd
00 Xxxxxx Xxxxxx
#00-00
Xxxxxxxxx 048 942
Attention: Mr Alex van der Zwaard / Xx Xxxxxxxx Dedieu
[Date]
Dear Sirs
Re: Purchaser's Escrow Termination Notice pursuant to Escrow Agreement
dated [ ] between South Atlantic Petroleum Limited ("SAPETRO"), CNOOC
Exploration & Production Limited ("CNOOC") and Meespierson Intertrust
(Singapore) Ltd (the "Escrow Agreement")
Capitalised terms used herein and not otherwise defined shall have the
meanings given such terms in the Escrow Agreement.
We hereby confirm that SAPETRO and CNOOC have mutually agreed that completion
of the Sale and Purchase Agreement will not occur due to [the termination of
the Sale and Purchase Agreement under clause 2.5 thereof / clause 3.3 thereof
/ clause 7.12(b) the breach by SAPETRO of its obligations thereunder *] and
are giving this notice in accordance with Clause 3.1(c) of the Escrow
Agreement. We hereby request that the Escrow Agent repays all the amounts in
the Escrow Account, together with all interest accrued thereon, to CNOOC in
accordance with Clause 3.1(c) of the Escrow Agreement.
Yours faithfully
-----------------------------
For and on behalf of
CNOOC Exploration & Production Limited
-----------------------------
For and on behalf of
South Atlantic Petroleum Limited
* delete as appropriate
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ESCROW ITC SECURITY NOTICE
[South Atlantic or CNOOC headed notepaper]
Meespierson Intertrust (Singapore) Ltd
00 Xxxxxx Xxxxxx
#00-00
Xxxxxxxxx 048 942
Attention: Mr Alex van der Zwaard / Xx Xxxxxxxx Dedieu
[Date]
Dear Sirs
Re: Escrow ITC Security Notice pursuant to Escrow Agreement dated [ ]
between South Atlantic Petroleum Limited ("SAPETRO"), CNOOC
Exploration & Production Limited ("CNOOC") and Meespierson Intertrust
(Singapore) Ltd (the "Escrow Agreement")
Capitalised terms used herein and not otherwise defined shall have the
meanings given such terms in the Escrow Agreement.
We hereby confirm that SAPETRO and CNOOC have mutually agreed that the ITC
Security is payable in accordance with the Sale and Purchase Agreement to
[SAPETRO/CNOOC *] and are giving this notice in accordance with Clause 3.2 of
the Escrow Agreement. We hereby request that the Escrow Agent pays the ITC
Security to [SAPETRO/CNOOC *], together with all interest accrued thereon in
accordance with Clause 3.2 of the Escrow Agreement.
Yours faithfully
-----------------------------
For and on behalf of
South Atlantic Petroleum Limited
-----------------------------
For and on behalf of
CNOOC Exploration & Production Limited
* delete as appropriate
71
DRAFT: 4 January 2006
SPECIMEN SIGNATURE
Meespierson Intertrust (Singapore) Ltd
00 Xxxxxx Xxxxxx
#00-00
Xxxxxxxxx 048 942
Attention: Mr Alex van der Zwaard / Xx Xxxxxxxx Dedieu
[Date]
Dear Sirs
Re: Specimen Signature in respect of Escrow Agreement dated [ ] between
South Atlantic Petroleum Limited ("SAPETRO"), CNOOC Exploration &
Production Limited ("CNOOC") and Meespierson Intertrust (Singapore)
Ltd (the "Escrow Agreement")
For the purposes of the Escrow Agreement and clause 4.1 thereof, we hereby
notify you that the signatures below are the Specimen Signatures in respect of
[CNOOC OR SAPETRO]
Name: [print name] Name: [print name]
Position: [Director] Position: [Director]
Signature: __________________ Signature:____________________
Yours faithfully
_____________________________
For and on behalf of
[South Atlantic Petroleum Limited] or [CNOOC Exploration & Production Limited]
PURCHASER'S PDF SPECIMEN SIGNATURE PAGE WILL NEED TO BE PRINTED OUT BY EACH
PARTY AND ATTACHED TO THE COUNTERPART ORIGINALS SIGNED BY THEM.
SELLER'S SPECIMEN SIGNATURE, WHEN RECEIVED, ALSO TO BE ATTACHED.
72
DRAFT: 4 January 2006
SCHEDULE 5
TUPNI STATEMENT OF ADVANCES
[*]
73
SCHEDULE 6
FORM OF LEGAL OPINION
FORM OF LEGAL OPINION TO BE ADDRESSED TO CNOOC BY
SAPETRO'S NIGERIAN LEGAL ADVISORS
TO: CNOOC LIMITED TO: CNOOC EXPLORATION &
PRODUCTION LIMITED
Dear Sirs,
In relation to any proposed sale and transfer by South Atlantic Petroleum
Limited ("Sapetro") of a contractor interest under the PSC entered into with
NNPC in respect of OML 130, we render the following opinion.
For the purposes of this opinion we have examined certified copies of the
following documents:
- the PSC;
- the Operating Agreement;
- the Production Co-ordination Agreement; and
- the HOA.
(together "the Relevant Agreements").
We have also examined the [certificate of incorporation and the Memorandum and
Articles of Association] (the "constitutional documents") of Sapetro, the
particulars in relation to Sapetro available at [relevant Companies
Registration Office] and such other books and records of Sapetro and issues of
Nigerian law as we have considered necessary for the purposes of giving this
opinion.
We are [solicitors] qualified in Nigeria. We express no opinion as to any law
other than Nigerian law at the date of this opinion.
On the basis of the foregoing we are of the opinion that:
(i) Sapetro is a company duly incorporated [with limited liability],
validly existing and entitled to carry on business under Nigerian
law.
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DRAFT: 4 January 2006
(ii) No winding-up, administration, receivership or other similar order
has been made in respect of Sapetro or any of its assets and no
proceedings have been commenced with a view to obtaining any such
order.
(iii) Sapetro has the power and legal capacity to enter into and perform
the Relevant Agreements and the execution and performance of the
Relevant Agreements will not contravene its constitutional documents.
(iv) Sapetro has taken all necessary corporate action to authorise its
execution, delivery and performance of the Relevant Agreements.
(v) The obligations of Sapetro under the Relevant Agreements constitute
its legal, valid, binding and enforceable obligations.
Yours faithfully
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DRAFT: 4 January 2006
SCHEDULE 7
FORM OF ACKNOWLEDGEMENTS
Form of Acknowledgement
[Date of Completion]
From: TUPNI
We hereby acknowledge that upon receipt of the sum of US dollars ($ ),
to be paid to us on the date hereof by Purchaser, all the advances, including
all interest due thereon, made by us on behalf of South Atlantic Petroleum
Limited ("SAPETRO") in respect of SAPETRO's ninety per cent (90%) interest as
a Contractor under the Production Sharing Contract dated 25 April 2005 between
the Nigerian National Petroleum Corporation, SAPETRO and ourselves shall have
been repaid in full.
_______________________________________
TOTAL UPSTREAM NIGERIA LIMITED
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DRAFT: 4 January 2006
Form of Acknowledgement
[Date of Completion]
From: Brasoil
We hereby acknowledge that upon receipt of the sum of US dollars ($ ), to be
paid to us on the date hereof by Purchaser, all the advances, including all
interest due thereon, made by us or on behalf of South Atlantic Petroleum
Limited ("SAPETRO") in respect of SAPETRO's ninety per cent (90%) interest as
a Contractor under the Production Sharing Contract dated 25 April 2005 between
the Nigerian National Petroleum Corporation, SAPETRO and Total Upstream
Nigeria Limited shall have been repaid in full.
____________________________________________________
BRASOIL OIL SERVICES COMPANY NIGERIA LIMITED
77
