Exhibit 10.15
PURCHASE AND SALE AGREEMENT
XX. XXXXXX X. XXXXX ("SELLER")
AND
NEW CENTURY ENERGY CORP. ("PURCHASER")
TABLE OF CONTENTS
PAGE
Recitals 5
1. Effective Date 5
2. Purchase and Sale 5
3. Excluded Assets 5
4. Sales Price 6
5. Manner of Payment 6
6. Adjustments 6
7. Post-Closing Adjustments 6
8. Closing 7
9. Purchaser's Due Diligence 8
A. Access to Seller's Non-Proprietary Information 8
B. Title Defect 8
C. Notice of Title Defect 8
D. Remedies for Title Defects 9
E. Permitted Encumbrances 10
10. Representations 11
A. Mutual Representations 11
B. Brokers 11
C. Further Distribution 12
D. Seller's Representations 12
11. Disclaimer of Representations and Warranties 13
A. Limitation of Warranties and Representations 13
B. Waiver of Consumer Protection Statutes 14
C. Financial Information 14
D. Instruments to Contain Disclaimers 14
E. Purchaser Acknowledges that the Waivers in this Section are
Conspicuous 15
12. Conditions of Closing 15
A. Representations 15
B. Performance 15
C. Pending Matters 15
D. Financial Condition 15
13. Allocation of Production and Proceeds 15
14. Taxes and Prepaid Items 15
A. Apportionment of Ad Valorem and Property Taxes 15
B. Proration of Taxes, Etc 16
C. Other Taxes 16
D. Indemnification 16
15. Responsibilities and Indemnifications 16
16. General Limitation of Damages 18
17. Physical Condition of the Interests 18
18. Further Assurances 19
A. Performance of Obligations 19
B. Further Conveyances and Assumptions 20
19. Notices 20
20. Purchaser's Post-Closing Obligation 20
21. Seller's Post-Closing Obligations 20
22. Severability 21
23. Waiver 21
24. Construction of Ambiguity 21
25. Captions 21
26. Governing Law 21
27. Waiver of Jury Trial 21
28. Limitation of Liability 21
29. Publicity 21
30. Use of Seller's Names 22
31. Counterparts 22
32. Assignment 22
33. Costs and Expenses 22
34. Joint Venture, Partnership and Agency 22
35. Confidentiality 22
36. Post-Closing Confidentiality 22
37. Survival 22
38. Limitations of Obligations 23
39. Entire Agreement 23
EXHIBITS
A. Description of Leases
B. Form of Assignment
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made to be EFFECTIVE as
of the 1st day of November, 2005, between Xxxxxx X. Xxxxx, XXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, ("Seller") and New Century Energy
Corp., a Colorado corporation, with a place of business at 0000 Xxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Purchaser").
RECITALS
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WHEREAS, Seller owns a 1.75% working interest in certain leases that have
been pooled into the Xxxxxxxx-Xxxxxx Gas Unit (the "Leases");
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller on the terms and conditions set forth in this Agreement
Seller's interest in the Leases;
NOW, THEREFORE, for good and valuable consideration and for the mutual
covenants herein contained, Seller and Purchaser agree as follows:
1. Effective Date. The effective date of the sale and purchase of the
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interests provided for herein shall be October 1, 2005 (the "Effective
Date").
2. Purchase and Sale. Subject to the terms, conditions, reservations, and
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exceptions specified in this Agreement, Seller shall sell and Purchaser
shall purchase as of the Effective Date certain interests in and to the oil
and gas leases and the properties located within and adjacent to the
Xxxxxxxx-Xxxxxx Gas Unit (the "Unit"), and all of Seller's related
interests in all contracts and agreements concerning the Leases, including,
but not limited to, unit agreements and pooling agreements (collectively,
with the Leases, called the "Interests"). The Interests shall consist of
the following ownership in the leases described in Exhibit A:
Interest Net Revenue Interest
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Xxxxxx X. Xxxxx 0.0175 Working Interest 0.013125 NRI
3. Excluded Assets. Notwithstanding anything to the contrary contained in
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this Agreement, the Interests shall not include and Purchaser will not
acquire any interest in or purchase any of the following (collectively, the
"Excluded Assets"):
A. All minute books, tax returns, partnership documents of Seller or
any of his affiliates as well as other business records or related
documents of Seller or any of his affiliates that are not related to
the Interests.
B. All records that are (i) proprietary in nature, (ii) covered by
the attorney-client privilege or work product doctrine, (iii) not
readily severable from Seller's general records through diligent
efforts, or (iv) required by applicable Law to be retained by Seller
or any of Seller's affiliates in their care, custody, or control.
C. All rights of Seller or any of Seller's affiliates under this
Agreement.
D. All contracts or agreements related solely to the Excluded
Assets.
E. All rights and claims arising, occurring, or existing in Seller
prior to the Effective Date including, but not limited to, any and all
contract rights, claims, penalties, receivables, revenues, recoupment
rights, rights of reimbursement, audit rights, recovery rights
(excepting gas imbalances), accounting adjustments, mispayments,
erroneous payments or other claims of any nature relating solely to
any time period prior to the Effective Date.
F. Any claims, rights and interest of Seller or any of Seller's
affiliates in and to any refunds of taxes or fees of any nature
whatsoever which relate solely to and arise out of the period prior to
the Effective Date.
G. The consideration received by Seller hereunder.
4. Sales Price. The sales price for the Interests shall be $1,890,000.00
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(the "Sales Price").
5. Manner of Payment. The Sales Price shall be paid concurrent with the
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closing by Purchaser to Seller via wire transfer of immediately available
funds (the "Sales Price Funds") to the following account: X. X. Xxxxx,
Account # XXXXXXXX at XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXX, ABA Routing # XXXXXXXXXX.
6. Adjustments. The Sales Price shall be adjusted as follows:
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A. Seller shall pay Purchaser at Closing the aggregate amount of the
following proceeds actually received by Seller and attributable to
production during the period between the Effective Date and the date
upon which the Closing occurs (with the period between the Effective
Date and the date of Closing referred to as the "Adjustment Period"):
(i) proceeds from the sale of oil, gas and hydrocarbons net of
gathering processing and transportation costs, and any production,
severance, sales or excise and similar taxes not reimbursed to Seller
by the purchaser of production and (ii) other proceeds earned with
respect to the Interests during the Adjustment Period;
B. Seller shall pay Purchaser at Closing all ad valorem taxes
prorated to Seller and assumed by Purchaser;
C. Purchaser shall pay Seller at Closing the amount of all costs
attributable to the ownership and operation of the Interests that are
paid by Seller and incurred at or after the Effective Date.
D. The adjustments made pursuant to this section, based on all then
available information concerning these matters for adjustment, shall
be made by checks to be exchanged at Closing.
7. Post-Closing Adjustments.
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A. As soon as practicable after the Closing, but not later than 45
days thereafter, Seller and Purchaser shall confer and attempt to
jointly produce in accordance with this Agreement and generally
accepted accounting principles a statement (herein the "Final
Settlement Statement") setting forth each adjustment, if any, that was
not finally determined as of the Closing and showing the calculation
of such adjustments. If needed, the parties shall attempt to agree to
the amounts due pursuant to such Post-Closing adjustments not later
than 90 days after the Closing.
B. If Purchaser and Seller are unable to agree upon a Final
Settlement Statement within one-hundred (100) days after the Closing,
Seller shall select an independent accounting firm from a list of
three (3) such firms provided by Purchaser upon Seller's request,
which firm shall audit the Purchaser's Final Settlement Statement and
the Seller's Final Settlement Statement and determine the final
purchase price. The decision of such independent accounting firm shall
be binding on Purchaser and Seller, and the fees and expenses of such
independent accounting firm shall be borne one-half by each of
Purchaser and Seller.
8. Closing. The sale and purchase of the Interests shall take place at a
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closing (the "Closing"), at which the Purchaser shall pay or cause to be
paid to Seller the Sales Price and any applicable closing charges and
Seller shall deliver or cause to be delivered instruments sufficient to
convey the Interests to Purchaser. The Closing shall occur at New Century
Energy Corp. offices located at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000 at 2:00 p.m., CST on November 22, 2005, or at such other time and
place to which the parties may agree (the "Closing Date"). At the Closing,
the following shall occur:
A. Seller shall deliver an executed and acknowledged Assignment for
the Interests in substantially the same form as that attached as
Exhibit B. Notwithstanding any and all other disclaimers and
limitations of warranty contained herein, the specified assignment
shall be provided with warranty of title by, through, and under
Seller, but not otherwise, and subject to: (a) all Title Defects
assumed by Purchaser pursuant to section 9.D; and (b) the Permitted
Encumbrances pursuant to section 9.E.
B. Purchaser shall wire to Seller the Sales Price and deliver any
check due under section 6.C.
C. Seller shall deliver to Purchaser any check due under sections
6.A. and 6.B.
D. Seller shall (subject to the terms of applicable operating
agreements and other provisions hereof) deliver to Purchaser exclusive
possession of the Interests, effective as of the Effective Date.
E. Immediately after the Closing, Purchaser and Seller shall notify
all operators, non-operators, oil and gas purchasers, government
agencies and royalty owners that Purchaser has purchased the Interests
and execute any and all transfer orders to reflect the same.
F. Seller shall, at or as promptly as reasonably possible after the
Closing, provide Purchaser with copies of all files (OTHER THAN DATA
OR INFORMATION THAT IS PROPRIETARY OR CONFIDENTIAL OR WHICH SELLER
CANNOT PROVIDE PURCHASER BECAUSE OF THIRD-PARTY RESTRICTIONS ON
SELLER), to the extent they are available to or in Seller's possession
relating to the Interests. This will include all well and property
files, including all geological well logs, engineering, geophysical
land, accounting and other technical files in its possession.
9. Purchaser's Due Diligence. Subject to Purchaser's execution of a
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Confidentiality Agreement satisfactory in form and substance to Seller:
A. Access to Seller's Non-Proprietary Information. Seller has and
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shall make available to Purchaser during normal business hours at
Seller's offices, or other locations designated by Seller, all
material non-proprietary files, records, documents and
non-interpretive data in Seller's possession relating to the
Interests, including but not limited to lease, land, title and
division order files (including any abstracts of title, title opinions
and title curative documents), regulatory and environmental files,
contracts, correspondence, permitting files, engineering, production
and well files and well logs (to the extent not subject to applicable
confidentiality or intellectual property restrictions). Seller shall
not be obligated to perform any additional title work, and Seller
shall not be obligated to make any existing abstracts and title
opinions current.
B. Title Defect. For the purpose of this Agreement, a "Title Defect"
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shall mean a material deficiency in one or more of the following
respects, provided that the non-transferability requirement in any
license, permit, right-of-way, pipeline franchise or easement
affecting the Interests or a requirement that it be renegotiated upon
a transfer of ownership shall not constitute a Title Defect unless the
inability to transfer any such rights to Purchaser would have a
material adverse effect on Purchaser's ability to continue to use,
exploit, and/or otherwise benefit from the Interests, and provided
also that the litigation identified in section 10.D.3 shall not
constitute a title defect:
1) The title at the Effective Date, as to one or more of the
Interests, is subject to an outstanding mortgage, deed of trust,
lien or encumbrance or other adverse claim;
2) The Interests are less than as set forth in section 2; or
3) Seller is in default under some material provision of a
lease, agreement or other contract materially affecting the
Interests.
C. Notice of Title Defect. Upon discovery of a Title Defect,
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Purchaser shall immediately notify Seller in writing of the nature of
the Title Defect and furnish to Seller Purchaser's basis for the
assertion of such Title Defect and data in support thereof. Seller may
request an increase in the Sales Price by delivery to Purchaser of
written notice, together with data in support thereof, that the
interest actually owned by Seller in any of the Interests is greater
than that shown in section 2. Without affecting the warranty of title
provided in the assignment, any Title Defect which is not disclosed to
Seller or any increase in the interest owned by Seller that is not
disclosed to Purchaser within two (2) business days prior to the
Closing shall conclusively be deemed waived by Purchaser or Seller, as
applicable, for all purposes.
D. Remedies for Title Defects. Upon timely delivery of notice, either by
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Purchaser of a Title Defect or by Seller of an increase in Seller's
interest, Purchaser and Seller shall meet and use their best efforts to
agree on the validity of the claim and the amount of any required
adjustment to the Sales Price. If the Purchaser and Seller cannot agree on
the amount of such a Sales Price adjustment, said amount shall be
determined in accordance with the following guidelines:
1) If the Title Defect is based upon Purchaser's notice that Seller
owns a lesser interest or the notice is from Seller that Seller owns a
greater interest than that shown in section 2 then the portion of the
Sales Price fairly allocated to Seller shall be reduced or increased
(as the case may be) in the same proportion that the actual interest
bears to the interest shown in section 2.
2) If the Title Defect is a lien, encumbrance or other charge upon a
property which is liquidated in amount, then the adjustment shall be
the sum necessary to be paid to the obligee to remove the Title Defect
from the affected property. If the Title Defect represents an
obligation or burden upon the affected property for which the economic
detriment to Seller is not liquidated but can be estimated with
reasonable certainty as agreed to by the parties, the adjustment shall
be the sum necessary to compensate Purchaser at the Closing for the
adverse economic effect which the Title Defect will have on the
affected property. If there is a lien or encumbrance in the form of a
judgment secured by a supersedeas bond or other security approved by
the Court issuing such order, such lien or encumbrance shall not be
considered a Title Defect under this Agreement.
3) Subject to paragraph 4 below, if the Title Defect cannot be
accommodated pursuant to paragraph 1 or 2 above and the parties cannot
otherwise agree on the amount of such an adjustment to the Sales Price
or Seller cannot cure the Title Defect to the reasonable satisfaction
of Purchaser prior to the Closing, the portion affected by the Title
Defect shall, if requested by Purchaser, be excluded from the
Interests conveyed to Purchaser at the Closing and the Sales Price
shall be reduced by the amount fairly attributable to the excluded
portion under section 2.
4) Purchaser may only adjust the Sales Price for Title Defects at
the Closing if the cumulative amount of such adjustments in its favor
exceeds $25,000.00. Similarly, Seller may only adjust the Sales Price
by reason of Seller owning a greater net revenue interest at the
Closing if the cumulative amount of such adjustments in its favor
exceeds $25,000.00. In the event the net amount of the Sales Price
adjustments downward or upward pursuant to the foregoing exceeds
$250,000.00 then Seller or Purchaser may, upon written notice to the
other party, terminate this Agreement and the same shall be of no
further force and effect.
5) If Purchaser shall receive an adjustment at the Closing on
account of a Title Defect, Seller shall have until a date that is 90
days after the Closing Date to cure the Title Defect at its cost. If
by such date Seller can demonstrate to Purchaser's reasonable
satisfaction that the Title Defect has been cured then Seller shall be
entitled to reimbursement by Purchaser for the amount of the
adjustment received by Purchaser at the Closing as a result of the
Title Defect. Purchaser shall pay such amount without interest to
Seller within ten (10) business days from the date that the parties
agree the Title Defect has been cured.
E. Permitted Encumbrances. The Interests may be subject to and Title
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Defects shall not include the following ("Permitted Encumbrances"):
1) Non-participating royalty interests and other burdens (and any
liens or security interests created by law or reserved in instruments
creating such interests to secure payment of same) to the extent that
they do not, individually or in the aggregate, reduce Seller's
interests below that shown in section 2;
2) All leases, unit agreements, pooling agreements, operating
agreements, production sales contracts, division orders and other
contracts, agreements and instruments applicable to the Interests, to
the extent that they do not, individually or in the aggregate, reduce
Seller's interests below that shown in section 2;
3) Third-party consent requirements, preferential rights or other
rights assertable by third parties with respect to which waivers or
consents are obtained by Seller prior to the Closing or the
appropriate time period for asserting the right has expired or that
need not be satisfied prior to a transfer;
4) Liens for current taxes or assessments not yet due or delinquent
on the Closing or, if delinquent, that are being contested in the
ordinary course of business;
5) Materialmen's, mechanic's, repairman's, employee's, contractor's,
operator's and other similar liens or charges arising in the ordinary
course of business, for amounts not yet delinquent;
6) All rights to consent by, required notices to, filings with or
other actions by governmental authorities in connection with the sale
or conveyance of oil and gas leases or interests therein or sale of
production therefrom if the same are customarily obtained subsequent
to such sale or conveyance;
7) Easements, rights of way, servitudes, permits, surface leases and
other rights in respect of surface operations on or over any of the
Interests that do not materially interfere with the current or
proposed operations on the Interests; or
8) Any encumbrances that do not, individually or in the aggregate,
materially detract from the value of or materially interfere with the
use, ownership or operation of the Interests subject thereto or
affected thereby (as currently used, owned or operated) or that would
be accepted by a reasonably prudent purchaser engaged in the business
of owning and operating oil and gas properties in Texas.
10. Representations. THE EXPRESS REPRESENTATIONS OF SELLER AND PURCHASER
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CONTAINED IN THIS PARAGRAPH OR OTHERWISE STATED IN THIS AGREEMENT ARE
EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS, EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE.
A. Mutual Representations. Each party to this Agreement represents that:
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1) if the party is not an individual then it is an entity duly
organized, validly existing and in good standing under the laws of the
State of its organization or incorporation and is duly qualified to do
business in Texas;
2) the party has all authority necessary to enter into this
Agreement and to perform all of the party's obligations hereunder;
3) the party's execution, delivery and performance of this Agreement
and the transactions contemplated hereby will not: (a) violate or
conflict with any provision of its Certificate of Organization or
Incorporation, By-Laws or other governing documents; (b) result in the
breach of any term or condition of or constitute a default or cause
the acceleration of any obligation under any agreement or instrument
to which the party is a party or by which the party is bound; or (c)
violate or conflict with any applicable judgment, decree, order,
permit, law, rule or regulation;
4) this Agreement has been duly executed and delivered on the
party's behalf, and at the Closing all documents and instruments
required hereunder will have been duly executed and delivered. This
Agreement, and all documents and instruments required hereunder, shall
constitute legal, valid and binding obligations enforceable in
accordance with their respective terms; and
5) the party has been represented by legal counsel of its own
selection who has reviewed this Agreement.
B. Brokers. Neither Seller nor Purchaser has incurred any obligation or
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liability, contingent or otherwise, for brokers' or finders' fees in
connection with this Agreement in respect of which the other party may have
any
responsibility; and any such obligation or liability that might exist
shall be the sole obligation of the party whose action gave rise thereto.
C. Further Distribution. Purchaser is acquiring the Interests for its own
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account and not with the intent to make a distribution thereof within the
meaning of the Securities Act of 1933, as amended, and the rules and
regulations thereunder or in violation of any other applicable securities
laws.
D. Seller's Representations. Except as expressly disclaimed in section 11
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hereof, Seller represents the following to the best of his knowledge and
belief:
1) The Interests are owned as represented, and the Seller has the
authority and capacity to sell and convey the same;
2) Seller has not defaulted or violated any agreement to which he is
a party in any material respect or any material obligation to which
Seller is bound affecting or pertaining to the Interests other than as
disclosed hereunder or on any Exhibit attached hereto;
3) There are no pending suits, actions, claims, investigations or
any legal, administrative or arbitration proceedings affecting or
pertaining to the Interests other than Cause No. M-05-0003-CV-A, Xxxx
X. Xxxxxx, et al. v. Xxxxx Xxxxxxx, et al., in the 36th Judicial
District Court of XxXxxxxx County, Texas;
4) The oil and gas leases included within and underlying the
Interests are in full force and effect;
5) To the knowledge of Seller, all material royalties (other than
royalties held in suspense), rentals and other payments due under the
leases being conveyed have been properly and timely paid, and all
conditions necessary to keep such leases in force have been fully
performed. No notices have been received by Seller of any claim to the
contrary;
6) From October 1, 2005, until Closing, there has not been and will not
be:
a) Any material damage, destruction or loss to or of the
Interests or related assets, whether or not covered by insurance;
b) Any sale, lease or other disposition of the Interests or
related assets;
c) Any mortgage, pledge or grant of a lien or security interest
in any of the Interests; or
d) Any contract or commitment to do any of the foregoing.
7) There will not be as of Closing any imbalances in the purchase and
sale
of oil and gas from the Interests that would impair the ability
of Purchaser to receive future payments for a share of production of
oil and gas proportionate to the Interests being purchased; and
8) Seller has paid to the operator Seller's share of expenses for
drilling the Xxxxxxxx-Xxxxxx Gas Xxxx Xx. 00 and the Lindhlom Fee No.
1 xxxxx. 11.
Disclaimer of Representations and Warranties.
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A. LIMITATION OF WARRANTIES AND REPRESENTATIONS. EXCEPT AS PROVIDED FOR
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IN SECTIONS 8.A and 10, THE TRANSACTION CONTEMPLATED HEREBY SHALL BE
WITHOUT ANY WARRANTY OR REPRESENTATION OF TITLE, EITHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, WITHOUT ANY EXPRESS, IMPLIED, STATUTORY OR OTHER
WARRANTY OR REPRESENTATION AS TO THE CONDITION, QUANTITY, QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, FREEDOM FROM REDHIBITORY VICES OR DEFECTS,
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OR MERCHANTABILITY OF ANY OF
THE EQUIPMENT OR ITS FITNESS FOR ANY PURPOSE AND WITHOUT ANY OTHER EXPRESS,
IMPLIED, STATUTORY OR OTHER WARRANTY OR REPRESENTATION WHATSOEVER.
PURCHASER SHALL HAVE INSPECTED OR WAIVED ITS RIGHT TO INSPECT THE INTERESTS
FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND
ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE, INCLUDING BUT NOT
LIMITED TO CONDITIONS SPECIFICALLY RELATED TO THE PRESENCE OR RELEASE OR
ONSITE DISPOSAL OF HAZARDOUS SUBSTANCES, AND THE CONDITION OF ANY WELL
CASING, TUBING OR DOWNHOLE EQUIPMENT. PURCHASER IS RELYING SOLELY UPON ITS
OWN INSPECTION OF THE INTERESTS, AND PURCHASER SHALL ACCEPT ALL OF THE SAME
IN THEIR "AS IS, WHERE IS" CONDITION. IN ADDITION, SELLER MAKES NO WARRANTY
OR REPRESENTATION, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO THE
ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS, PROJECTIONS,
INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER FURNISHED OR MADE
AVAILABLE TO PURCHASER IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT
LIMITATION, ANY DESCRIPTION OF THE INTERESTS, PRICING ASSUMPTIONS, OR
QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE
INTERESTS OR THE ABILITY OR POTENTIAL OF THE INTERESTS TO PRODUCE
HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE INTERESTS OR ANY OTHER
MATTERS CONTAINED IN THE PROPRIETARY DATA OR ANY OTHER MATERIALS FURNISHED
OR MADE AVAILABLE TO PURCHASER BY SELLER OR BY SELLER'S AGENTS OR
REPRESENTATIVES. ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS,
INFORMATION AND OTHER MATERIALS FURNISHED BY SELLER OR OTHERWISE MADE
AVAILABLE TO PURCHASER ARE PROVIDED TO PURCHASER AS A CONVENIENCE AND SHALL
NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST SELLER. ANY RELIANCE
ON OR USE OF THE SAME SHALL BE AT PURCHASER'S SOLE RISK TO THE MAXIMUM
EXTENT PERMITTED BY LAW.
B. WAIVER OF CONSUMER PROTECTION STATUTES. SELLER AND PURCHASER CERTIFY
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THAT THEY ARE NOT "CONSUMERS" WITHIN THE MEANING OF THE TEXAS DECEPTIVE
TRADE PRACTICES-CONSUMER PROTECTION ACT, SUBCHAPTER E OF CHAPTER 17,
SECTIONS 17.41, ET SEQ., OF VERNON'S TEXAS CODE ANNOTATED, BUSINESS AND
COMMERCE CODE, AS AMENDED (THE "DTPA") IF THE INTERESTS ARE LOCATED IN
TEXAS. PURCHASER HEREBY WAIVES ITS RIGHTS UNDER THE DTPA, A LAW THAT GIVES
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CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN
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ATTORNEY OF ITS OWN SELECTION, PURCHASER VOLUNTARILY CONSENTS TO THIS
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WAIVER. TO EVIDENCE ITS ABILITY TO GRANT SUCH WAIVER, PURCHASER REPRESENTS
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TOSELLER THAT: (I) IT IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING
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POSITION; (II) IT IS REPRESENTED BY LEGAL COUNSEL IN ENTERING INTO THIS
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AGREEMENT; AND (III) SUCH LEGAL COUNSEL WAS NOT DIRECTLY OR INDIRECTLY
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IDENTIFIED, SUGGESTED, OR SELECTED BYSELLER OR AN AGENT OF SELLER.
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C. Financial Information. Purchaser has been provided certain financial
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information relating to the ownership and operation of the Interests for
the period commencing on the date of the first modern leases through the
present (the "Financial Information"). EXCEPT AS PROVIDED IN THIS
AGREEMENT, WITH RESPECT TO THE INTERESTS' FINANCIAL INFORMATION, SELLER,
HIS AFFILIATES AND THEIR CONSULTANTS MAKE NO REPRESEN-TATION OR WARRANTY,
WHETHER EXPRESS, STATUTORY OR IMPLIED, AND EXPRESSLY DISCLAIM ANY SUCH
REPRESENTATION AND WARRANTY AS TO: (I) THE ACCURACY, COMPLETENESS, OR
MATERIALITY OF ANY FINANCIAL INFORMATION FURNISHED TO PURCHASER IN
CONNECTION WITH ANY INTEREST; (II) THE CON-DITION, QUALITY AND QUANTITY OF
ANY INTEREST; (III) THE PRESENT OR FUTURE VALUE OF THE ANTICIPATED INCOME,
COSTS OR PROFITS, IF ANY, TO BE DERIVED FROM ANY INTEREST; OR (IV) THE
ENVIRONMENTAL CONDITION OF THE INTERESTS. ANY FINANCIAL INFORMATION
FURNISHED BY SELLER IS PROVIDED TO PURCHASER AS A CONVENIENCE AND
PURCHASER'S RELIANCE ON OR USE OF THE SAME IS AT PURCHASER'S SOLE RISK.
D. INSTRUMENTS TO CONTAIN DISCLAIMERS. THE CONVEYANCE INSTRUMENTS TO BE
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DELIVERED BY SELLER AT CLOSING SHALL EXPRESSLY SET FORTH THE DISCLAIMERS OF
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION AND SHALL
EXPRESSLY STATE THAT THEIR TERMS ARE SUBJECT TO THE TERMS AND CONDITIONS
CONTAINED IN THIS AGREEMENT.
E. PURCHASER ACKNOWLEDGES THAT THE WAIVERS IN THIS SECTIONARE
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CONSPICUOUS.
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12. Conditions of Closing. Each party's obligation to consummate the
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transaction provided for herein is subject to the satisfaction or waiver by
the other party of the following conditions:
A. Representations. The representations contained in section 10
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hereof shall be true and correct in all material respects on the
Closing Date as though made on and as of the Closing Date.
B. Performance. Each party shall have performed in all material
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respects the obligations, covenants and agreements hereunder to be
performed by it at or prior to the Closing Date.
C. Pending Matters. Except as set forth in section 10.D.3 above, no
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suit, action or other proceeding by a third party or a governmental
authority shall be pending which seeks damages, fines or other
penalties from either party in connection with the Interests, or seeks
to restrain, enjoin or otherwise prohibit the consummation of the
transactions contemplated by this Agreement.
D. Financial Condition. No material adverse change has occurred in
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the financial condition of either party.
13. Allocation of Production and Proceeds. All production of oil, gas and
-----------------------------------------
other minerals from the Interests prior to the Effective Date and all
proceeds from the sale of such production shall be the property of Seller.
All such production upon and after the Effective Date and all proceeds from
the sale thereof shall be the property of Purchaser. Production shall be
allocated to the parties based upon the most reliable measurement method or
allocation calculation information available to the parties. Purchaser
shall assume all rights and/or liabilities of Seller arising from any gas
imbalances affecting the Interests as of the Effective Date and thereafter.
14. Taxes and Prepaid Items.
-----------------------
A. Apportionment of Ad Valorem and Property Taxes. All ad valorem
----------------------------------------------------
taxes, real property taxes, personal property taxes and similar
obligations with respect to the Interests for the tax period in which
the Effective Date occurs shall be apportioned as of the Effective
Date between Seller and Purchaser. The portion of such apportioned tax
liability which is attributable to the Seller shall be credited to
Purchaser's account as an adjustment under section 6.B. hereof or
Purchaser shall assume responsibility for the payment of all such ad
valorem and property taxes and hold Seller harmless therefrom.
Purchaser shall file or cause to be filed all required reports and
returns incident to such taxes and shall pay or cause to be paid to
the taxing authorities all such taxes arising out of the tax period in
which the Effective Date occurs. Purchaser shall supply Seller with
copies of the filed reports and proof of payment promptly after filing
and paying same.
B. Proration of Taxes, Etc. All other taxes, including, but not
--------------------------
limited to, excise taxes, state severance taxes, and any other local,
state, and/or federal taxes or assessments attributable to the
properties or any part thereof relating to oil and gas produced prior
to the Effective Date remain Seller's responsibility, and all
deductions, credits and refunds pertaining to the aforementioned
taxes, attributable to the Interests or any part thereof prior to the
Effective Date (no matter when received) belong to Seller. All such
taxes attributable to the Interests or any part thereof at and after
the Effective Date are Purchaser's responsibility, and Purchaser shall
reimburse Seller for any such taxes previously paid by Seller and all
deductions, credits, and refunds pertaining thereto at and after the
Effective Date (no matter when received) belong to Purchaser.
C. OtherTaxes. Purchaser agrees to be liable for any and all
----------
conveyance, transfer, recording and registration fees and sales, gross
receipts, use, motor vehicle transfer and excise, real estate
transfer, documentary stamp and similar transfer taxes imposed with
respect to the sale, conveyance and assignment of the Interests
hereunder. Purchaser shall prepare and file (or cause to be prepared
and filed), to the extent permitted by applicable law, any necessary
tax returns in connection with the foregoing taxes and fees to be
borne by Purchaser and pay all filing and recording fees relating to
the filing and recording of any instruments delivered by Seller to
convey the Interests to Purchaser.
D. Indemnification. As used in this paragraph and the subparagraphs
---------------
hereunder, "Claim" and "Claims" shall include claims, demands, causes
of action, liabilities, damages, fines, penalties and judgments of any
kind or character, whether matured or unmatured, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated or known
or unknown, and whether or not resulting from third party claims, and
all costs and fees (including, without limitation, interest,
reasonable attorneys' fees, reasonable costs of experts, court costs
and reasonable costs of investigation, including those incurred in
enforcing the indemnification provisions contained in this Agreement)
in connection therewith. As used herein, "Claims" shall not include
Title Defects, or other items for which Purchaser or Seller shall have
received an adjustment to the Sales Price hereunder.
15. Responsibilities and Indemnifications. In addition to any other
---------------------------------------
indemnification or reservation provision contained in this Agreement:
A. Purchaser shall (i) as of the Effective Date assume, be
responsible for and comply with all duties and obligations of Seller,
express or implied, with respect to the Interests, including, without
limitation, those arising under or by virtue of any lease, contract,
agreement, document, permit, applicable law, statute or rule,
regulation or order of any governmental authority (specifically
including, without limitation, any governmental request or requirement
to plug, re-plug or abandon any well, or take any clean-up, remedial
or other action with respect to the Interests) and (ii) defend,
indemnify and hold Seller harmless from and pay or reimburse Seller
for any and all Claims in connection with the duties and obligations
of Seller set forth in (i) above or in connection with the ownership,
operation, management or control of the Interests before or after the
Effective Date (except as set forth in paragraph B below), except (a)
to the extent any such Claim has been asserted against Seller prior to
the Effective Date, (b) as otherwise set forth in this Agreement and
(c) any Claim expressly assumed by Seller. With respect to any Claim
for cleanup or remediation of the Interests, such Claim shall be
deemed asserted against Seller at the time the Order requiring cleanup
or remediation has been issued by the appropriate regulatory agency.
B. After the Closing, Seller shall be responsible for, shall pay on
a current basis, and shall indemnify, save, hold harmless, discharge
and release Purchaser from and against any and all Claims arising
from, based upon, related to or associated with (a) any act or
omission by Seller involving or relating to the Interests occurring
before the Effective Date, other than obligations and liabilities
assumed by Purchaser pursuant to paragraph A above; and (b) any act or
omission by Seller involving or relating to the Excluded Assets
whether occurring before or after the Effective Date.
C. Except as provided in paragraph D below, Purchaser shall defend,
indemnify and hold Seller harmless from and pay or reimburse Seller
for any and all Claims for damage to the environment, environmental
cleanup, remediation, or compliance, or for any other relief, arising
directly or indirectly from or incident to the use, occupation,
operation, maintenance or abandonment of any of the Interests, or
condition of the Interests, whether latent or patent, including,
without limitation, contamination of the property or premises with
Naturally Occurring Radioactive Materials (NORM), and WHETHER SUCH
CLAIM IS CAUSED BY SELLER'S NEGLIGENCE, INCLUDING SOLE NEGLIGENCE,
SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE NEGLIGENCE, PASSIVE
NEGLIGENCE, OR STRICT LIABILITY OR FAULT OF SELLER OR ANY OTHER THEORY
OF LIABILITY OR FAULT, WHETHER IN LAW (WHETHER COMMON OR STATUTORY) OR
EQUITY, EXCLUDING GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF SELLER OR
OF SELLER'S AGENTS, EMPLOYEES, OR CONTRACTORS AND ASSERTED AGAINST
PURCHASER AND/OR SELLER AFTER THE CLOSING, WHETHER OR NOT ANY SUCH
CLAIMS RESULT FROM CONDITIONS, ACTIONS OR INACTIONS PRESENT OR
EXISTING ON OR BEFORE THE CLOSING. This indemnification shall not
apply to any off-site disposal by Seller which occurred prior to the
Effective Date.
D. Any Claim for indemnity under the paragraphs above or under any
other provision of this Agreement shall be made by written notice from
the party seeking indemnification (the "Indemnified Party") to the
party required to provide same (the "Indemnifying Party"), together
with a written description of any third-party Claim against the
Indemnified Party, stating the nature and basis of such Claim and, if
ascertainable, the amount thereof. The Indemnifying Party shall have a
period of thirty (30) days after receipt of such notice within which
to respond thereto or, in the case of a third-party Claim which
requires a shorter time for response, within such shorter period as
specified by the Indemnified Party in such notice (the "Notice
Period"). If the Indemnifying Party denies responsibility or fails to
respond to the notice within the Notice Period, the Indemnified Party
may defend or compromise the Claim as it deems appropriate without
prejudice to any of the Indemnified Party's rights hereunder, with no
further obligation to inform the Indemnifying Party of the status of
the Claim and no right of the Indemnifying Party to approve or
disapprove any actions taken in connection therewith by the
Indemnified Party. If the Indemnifying Party accepts responsibility,
it shall so notify the Indemnified Party within the Notice Period and
elect either (a) to undertake the defense or compromise of such
third-party Claim with counsel selected by the Indemnifying Party and
reasonably approved by the Indemnified Party or (b) to instruct the
Indemnified Party to defend or compromise such Claim. If the
Indemnifying Party undertakes the defense or compromise of such
third-party Claim, the Indemnified Party shall be entitled, at its own
expense, to participate in such defense. No compromise or settlement
of any third-party Claim shall be made without reasonable notice to
the Indemnified Party and, unless such compromise or settlement
includes a general release of the Indemnified Party in respect of the
matter with no admission of liability on the part of the Indemnified
Party and no constraints on the future conduct of its business,
without the prior written approval of the Indemnified Party.
E. Each party's indemnity given under this section shall extend to
the other and to the other's parent, subsidiaries and affiliates and
their present and former directors, officers, employees, attorneys,
contractors, agents and members and to each of their heirs, executors,
successors and assigns and shall apply to all obligations and
liabilities described above, INCLUDING THOSE BASED ON NEGLIGENCE,
INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE,
ACTIVE NEGLIGENCE, PASSIVE NEGLIGENCE, STRICT LIABILITY OR LIABILITY
WITHOUT FAULT OF THE OTHER (OR ANY OTHER INDEMNIFIED PARTY) OR ANY
OTHER THEORY OF LIABILITY OR FAULT, WHETHER IN LAW (WHETHER COMMON OR
STATUTORY) OR EQUITY, excluding gross negligence and willful
misconduct of the party or of the party's agents, employees, or
contractors.
16. General Limitation of Damages. NOTWITHSTANDING ANY OTHER PROVISION OF
--------------------------------
THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO ANY
INDEMNIFIED PARTY FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT,
CONSEQUEN-TIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING ANY DAMAGES ON
ACCOUNT OF LOST PROFITS OR OPPORTUNITIES) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17. Physical Condition of the Interests.
---------------------------------------
A. THE INTERESTS HAVE BEEN USED FOR OIL AND GAS DRILLING AND
PRODUCING OPERATIONS, RELATED OIL FIELD OPERATIONS AND POSSIBLY FOR
THE STORAGE AND DISPOSAL OF WASTE MATERIALS OR HAZARDOUS SUBSTANCES.
PHYSICAL CHANGES IN THE LAND MAY HAVE OCCURRED AS A RESULT OF SUCH
USES. THE INTERESTS ALSO MAY CONTAIN BURIED PIPELINES AND OTHER
EQUIPMENT, WHETHER OR NOT OF A SIMILAR NATURE, THE LOCATIONS OF WHICH
MAY NOT NOW BE KNOWN BY SELLER OR BE READILY APPARENT BY A PHYSICAL
INSPECTION OF THE PROPERTY. PURCHASER UNDERSTANDS THAT SELLER DOES NOT
HAVE THE REQUISITE INFORMATION WITH WHICH TO DETERMINE THE EXACT
NATURE OR CONDITION OF THE INTERESTS OR THE EFFECT ANY SUCH USE HAS
HAD ON THE PHYSICAL CONDITION OF THE INTERESTS.
B. PURCHASER ACKNOWLEDGES THAT: (I) IT HAS ENTERED INTO THIS
AGREEMENT ON THE BASIS OF ITS OWN INVESTIGATION OF THE PHYSICAL
CONDITION OF THE INTERESTS INCLUDING SUBSURFACE CONDITION; (II) THE
INTERESTS HAVE BEEN USED IN THE MANNER AND FOR THE PURPOSES SET FORTH
ABOVE AND THAT PHYSICAL CHANGES TO THE INTERESTS MAY HAVE OCCURRED AS
A RESULT OF SUCH USE; AND (III) LOW LEVELS OF NATURALLY OCCURRING
RADIOACTIVE MATERIAL (NORM) AND MAN-MADE MATERIAL FIBERS (MMMF) MAY BE
PRESENT AT SOME LOCATIONS. PURCHASER ACKNOWLEDGES THAT NORM IS A
NATURAL PHENOMENON ASSOCIATED WITH MANY OIL FIELDS IN THE U.S. AND
THROUGHOUT THE WORLD. PURCHASER SHOULD MAKE ITS OWN DETERMINATION OF
THIS PHENOMENON AND OTHER CONDITIONS. SELLER DISCLAIMS ANY LIABILITY
ARISING OUT OF OR IN CONNECTION WITH ANY PRESENCE OF NORM OR MMMF ON
THE PROPERTY AND ON THE CLOSING DATE, PURCHASER SHALL ASSUME THE RISK
THAT THE INTERESTS MAY CONTAIN WASTES OR CONTAMINANTS AND THAT ADVERSE
PHYSICAL CONDITIONS, INCLUDING THE PRESENCE OF WASTES OR CONTAMINANTS,
MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATION. ON THE
CLOSING DATE, ALL RESPONSIBILITY AND LIABILITY RELATED TO DISPOSAL,
SPILLS, WASTE, OR CONTAMINATION ON AND BELOW THE INTERESTS SHALL BE
TRANSFERRED FROM SELLER TO PURCHASER AND PURCHASER SHALL INDEMNIFY,
DEFEND AND HOLD SELLER HARMLESS THEREFROM. SELLER AND PURCHASER AGREE
THAT THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING.
18. Further Assurances.
-------------------
A. Performance of Obligations. Seller and Purchaser shall use all
----------------------------
reasonable efforts to take, or cause to be taken, all actions and to
do, or cause to be done, all things necessary, proper or advisable to
carry out all of
their respective obligations under this Agreement and to
consummate and make effective the purchase and sale of the Interests
pursuant to this Agreement.
B. Further Conveyances and Assumptions. After the Closing, Seller
--------------------------------------
and Purchaser shall execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered all such further conveyances,
transfer orders, notices, assumptions and releases and such other
instruments, and shall take such further actions, as may be necessary
or appropriate to assure fully to Purchaser and its successors or
assigns all of the Interests and to assure fully to Seller and its
successors and assigns the assumptions of liabilities and obligations
of Purchaser or to otherwise carry out the terms and provisions of
this Agreement.
19. Notices. All notices and consents to be given hereunder shall be in
-------
writing and shall be deemed to have been duly given if delivered
personally; faxed with receipt acknowledged; mailed by registered mail,
return receipt requested, postage prepaid; or delivered by a recognized
commercial courier to the party at the address set forth below or such
other address as any party shall have designated for itself by ten (10)
days' prior notice to the other party. Notice is deemed to have been duly
received: on the day personally delivered; on the day after it is sent by
fax; seven (7) days after mailing by registered mail; or the day after it
is received from a recognized commercial courier.
SELLER:
------
Xx. Xxxxxx X. Xxxxx
XXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX
Phone: XXXXXXXXXXX
Fax: XXXXXXXXXXXX
PURCHASER:
---------
New Century Energy Corp.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
20. Purchaser's Post-Closing Obligations. If at any time subsequent to the
--------------------------------------
Closing, Purchaser comes into possession of money or property belonging to
Seller, such money or other property shall be promptly delivered to Seller.
Purchaser shall allow Seller access to the Records during Purchaser's
normal business hours after Closing for the purpose of filing and amending
a tax return or for any other legitimate business purpose, provided that
any copies of Records made by Seller shall be at the sole expense of
Seller.
21. Seller's Post-Closing Obligations. If at any time subsequent to the
-----------------------------------
Closing, Seller comes into possession of money or property belonging to the
Purchaser, such money or other property shall be promptly delivered to the
Purchaser. Furthermore, Seller recognizes that Purchaser will be required
to audit the historical performance of the Interests and shall cooperate
with Purchaser and provide copies of documents requested by Purchaser to
accomplish the same.
22. Severability. In the event any covenant, condition, or provision
------------
contained herein is held to be invalid by a court of competent
jurisdiction, the invalidity of any such covenant, condition or provision
shall in no way affect any other covenant, condition, or provision
contained herein, provided, however, that any such invalidity does not
materially prejudice either the Purchaser or Seller in their respective
rights and obligations contained in the valid covenants, conditions, and
provisions of this Agreement.
23. Waiver. No waiver of any of the provisions of this Agreement shall
------
constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
24. Construction of Ambiguity. In the event of any ambiguity in any of the
---------------------------
terms or conditions of this Agreement, including any exhibits hereto and
whether or not placed of record, such ambiguity shall not be construed for
or against any party hereto on the basis that such party did or did not
author the same.
25. Captions. The captions in this Agreement are for convenience only and
--------
shall not be considered a part of or affect the construction or
interpretation of any provisions of this Agreement.
26. Governing Law. This Agreement shall be governed by and interpreted in
--------------
accordance with the laws of the State of Texas, without reference to the
conflict of laws principles applied by the courts of the State of Texas.
27. Waiver of Jury Trial. SELLER AND PURCHASER DO HEREBY IRREVOCABLY
-----------------------
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO A TRIAL
BY JURY IN ANY ACTION, SUIT OR OTHER LEGAL PROCEEDING BASED UPON, ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
28. Limitation of Liability. Seller and Purchaser do hereby covenant and
-------------------------
agree that the recovery by either party hereto of any damages suffered or
incurred by it as a result of any breach by the other party of any
provision of this Agreement shall be limited to the actual damages suffered
or incurred by the non-breaching party as a result of the breach by the
breaching party and in no event shall the breaching party be liable to the
non-breaching party for any indirect, consequential, exemplary or punitive
damages suffered or incurred by the non-breaching party as a result of the
breach by the breaching party.
29. Publicity. Seller acknowledges and understands that Purchaser is a
---------
publicly traded company subject to exchange-imposed obligations regarding
confidentiality and non-disclosure of material non-public information. In
this regard, Seller agrees that he shall not make or cause to be made any
disclosure of the transaction contemplated herein to any third party or
otherwise disseminate any news or announcement of any kind with respect to
this Agreement
or the underlying transactions without the express written approval of
Purchaser. Seller further agrees to keep all information regarding this
Agreement and the underlying transactions confidential and not to disclose,
reveal, or discuss any such information without the written approval of
Purchaser.
30. Use of Seller's Name. As soon as practicable after the Closing,
-----------------------
Purchaser shall remove or cause to be removed the names and marks used by
Seller and all variations and derivations thereof and logos relating
thereto from the Interests and shall not thereafter make any use whatsoever
of those names, marks and logos.
31. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
32. Assignment. Except as otherwise provided herein, this Agreement shall
----------
be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. All future conveyances of all
or any portion of the Interests shall expressly recognize and perpetuate
the rights and obligations set out in this Agreement.
33. Cost and Expenses. Except as otherwise expressly provided herein, each
-------------------
party shall bear and pay its own costs and expenses, including, but not
limited to, attorneys fees, incurred in connection with this transaction.
34. Joint Venture, Partnership and Agency. Nothing contained in this
-----------------------------------------
Agreement shall be deemed to create a joint venture, partnership, tax
partnership or agency relationship between the parties.
35. Confidentiality. Prior to the Closing, Seller and Purchaser, to the
---------------
extent permitted by law, shall keep confidential all information received
from the other unless such information is readily ascertainable from public
or published information or trade sources or is received from a third-party
having no obligation of confidentiality with respect to such information.
In the event of the termination of this Agreement, Seller and Purchaser
shall return to the other or destroy all information received from the
other and to the extent permitted by law keep confidential and not use any
confidential information obtained pursuant to this Agreement.
36. Post-Closing Confidentiality. Following the Closing, Seller agrees to
-----------------------------
keep confidential all information relative to the Interests covered by this
Agreement. Such obligation of confidentiality shall continue until the
earlier of the following: (1) three years from the Closing; (ii) the date
upon which Purchaser has conveyed the Interests to a third party; or (iii)
the date upon which Purchaser provides Seller written notice of the
termination of such confidentiality requirements. The obligations of
confidentiality shall not apply to any information that is required to be
disclosed by Seller as a result of applicable law, regulation, rule or
order of a duly empowered court or governmental entity.
37. Survival. Except as otherwise specifically provided in this Agreement,
--------
all covenants, obligations, agreements and guarantees shall survive the
execution of this Agreement, the Closing and the delivery and recordation
of any deeds, assignments or bills of sale which convey the Interests from
Seller to Purchaser.
38. Limitations of Obligations. Notwithstanding anything to the contrary
----------------------------
contained herein, all representations, warranties, covenants and
indemnities made by Seller hereunder shall be limited only to the Interests
conveyed hereby.
39. Entire Agreement. This Agreement, together with any Confidentiality
-----------------
Agreements relating to the Interests previously executed by Purchaser,
constitute the entire agreement between the parties and supersede all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No supplement, amendment, alteration,
modification, waiver or termination of this Agreement shall be binding
unless executed in writing by the parties hereto after the execution of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
EFFECTIVE as of the day and year first set forth above.
SELLER:
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
----------------------------
PURCHASER:
NEW CENTURY ENERGY CORP.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
By: Xxxxxx X. XxXxxxxxx
President & CEO
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF Midland Sec.
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXX, an individual known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of November, 2005.
---------
/s/ Xxxx Xxxxxx
------------------------------------
Notary Public, State of Texas
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXXXXXX, PRESIDENT AND CEO OF NEW CENTURY ENERGY CORP., a Colorado
corporation, and known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that she/he executed the same for
the purposes and considerations therein expressed, as the act and deed of such
corporation and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2nd day of November, 2005.
---------
/s/ Xxxx Xxxxx Xxxxx
-----------------------------------
Notary Public, State of Texas
EXHIBIT A TO PURCHASE & SALE AGREEMENT
1. Oil, Gas and Mineral Lease dated February 3, 2003, between Xxxxxxxx
Xxxxxxxxx, as Lessor, and US Enercorp, LLC, as Lessee, as evidenced of
record in Volume 421, Pages 210-213, of the Deed Records of XxXxxxxx
County, Texas, covering the following described lands in XxXxxxxx County,
Texas:
470 acres, more or less, being 170 acres out of the Xxxxxx Xxxxxxxxx
Xxxxxx 00, X-000, and 300 acres being out of the BS & F Survey, A-22, as
more particularly described in the lease.
2. Oil, Gas and Mineral Lease dated February 3, 2003, between Xxxxxxx
Xxxxxxxxx Xxxxxx, as Lessor, and US Enercorp, LLC, as Lessee, as evidenced
of record in Volume 421, Pages 214-217, of the Deed Records of XxXxxxxx
County, Texas, covering the following described lands in XxXxxxxx County,
Texas:
470 acres, more or less, being 170 acres out of the Xxxxxx Xxxxxxxxx
Xxxxxx 00, X-000, and 300 acres being out of the BS & F Survey, A-22, as
more particularly described in the lease.
3. Oil, Gas and Mineral Lease dated February 14, 2003, between Xxxxxx X.
Xxxxx and wife, Xxxxxxx Xxxxx, as Lessors, and US Enercorp, LLC, as Lessee,
as evidenced of record in Volume 421, Pages 223-226, of the Deed Records of
XxXxxxxx County, Texas, covering the following described lands in XxXxxxxx
County, Texas:
470 acres, more or less, being 170 acres out of the Xxxxxx Xxxxxxxxx
Xxxxxx 00, X-000, and 300 acres being out of the BS & F Survey, A-22, as
more particularly described in the lease.
4. Oil and Gas Lease dated April 1, 2003, between Xxxx X. Xxxxxx, et ux,
as Lessors, and US Enercorp, LLC, as Lessee, as evidenced by Memorandum of
Oil and Gas Lease recorded in Volume 425, Pages 465-468, of the Deed
Records of XxXxxxxx County, Texas, covering the following described lands
in XxXxxxxx County, Texas:
470 acres, more or less, being 170 acres out of the Xxxxxx Xxxxxxxxx
Xxxxxx 00, X-000, and 300 acres being out of the BS & F Survey, A-22, as
more particularly described in the lease.
5. Oil and Gas Lease dated April 29, 2003, between Xxxxxxx Xxxxxxx, Xx.,
et al., as Lessors, and US Enercorp, LLC, as Lessee, as evidenced by
Memorandum of Oil and Gas Lease recorded in Volume 425, Pages 368-374, of
the Deed Records of XxXxxxxx County, Texas, covering 80 acres, more or
less, as the W/2 of the NE/4 of the Xxxxxx Xxxxxxxxx Xxxxxx 00, X-000,
being more particularly described in the lease.
6. Oil and Mineral Lease dated effective March 6, 2003, between Xxxxxxx
Xxxxxx Xxxxxxxx, et al., as Lessors, and US Enercorp, LLC, as Lessee, as
evidenced by Memorandum of Oil and Gas Lease recorded in Volume 421, Pages
427-429, of the Deed Records of XxXxxxxx County, Texas, covering 430 acres,
more or less, out of the Xxxxxx Xxxxxxxxx Xx. 00, X-000, being more
particularly described in the lease.
7. Oil and Gas Lease dated effective April 14, 2003, between Xxxxxx X.
Rhode et al., as Lessors, and US Enercorp, LLC, as Lessee, as evidenced by
Memorandum of Oil and Gas Lease recorded in Volume 422, Pages 465-471, of
the Deed of Records of XxXxxxxx County, Texas, covering 110 acres, more of
less, out of the Xxxxxx Xxxxxxxxx Xx. 00, X-000, being more particularly
described in the lease.
8. Oil and Gas Lease dated effective October 15, 2003, between Xxxxxx X.
Xxxxx, et ux, as Lessors, and US Enercorp, LLC, as Lessee, as evidenced by
Memorandum of Oil and Gas Lease recorded in Volume 426, Pages 164-165, of
the Deed Records of XxXxxxxx County, Texas, covering 40 acres, more or
less, being more specifically described as the NW/4 of the SW/4 of the
Xxxxxx Xxxxxxxxx No. 48, A-915.
9. Oil and Gas Lease dated effective November 20, 2003, between Xxx X.
Xxxxxxxxxx, et al., as Lessors, and US Enercorp, LLC, as Lessee, as
evidenced by Memorandum of Oil and Gas Lease recorded in Volume 426, Pages
330-332, of the Deed of Records of XxXxxxxx County, Texas, covering 40
acres, more or less, being more specifically described as the NW/4 of the
SW/4 of the Xxxxxx Xxxxxxxxx No. 48, A-915.
10. Oil, Gas and Mineral Lease dated effective October 23, 2002, between
Xxxxxx Xxxxx, as Lessor and HHC Exploration, Inc. as Lessee, recorded in
Volume 421, Pages 278-280, of the Deed Records of XxXxxxxx County, Texas,
covering 40 acres, more or less, being more specifically described as the
NE/4 of the NE/4 of BS&F Survey, Section 45, A-22.
11. Oil, Gas and Mineral Lease dated effective October 23, 2002, between
Xxxxx Xxxxxxx, as Lessor, and HHC Exploration, Inc., as Lessee, recorded in
Volume 421, Pages 281-283, of Deed Records of XxXxxxxx County, Texas,
covering 40 acres, more or less, being more specifically described as the
NE/4 of the NE/4 of BS&F Survey, Section 45, A-22.
12. Oil, Gas and Mineral Lease dated effective February 3, 2003 between
Xxx X. Xxxxxxx, as Lessor, and HHC Exploration, Inc., as Lessee, recorded
in Volume 421, Pages 284-286, of the Deed Records of XxXxxxxx County,
Texas, covering 40 acres, more or less, being more specifically described
as the NE/4 of the NE/4 of BS&F Survey, Section 45, A-22.
13. Oil, Gas and Mineral Lease dated effective February 3, 2003, between
Xxx X. Xxxxxxx, as Lessor, and HHC Exploration, Inc., as Lessee, recorded
in Volume 421, Pages 471-473, of the Deed Records of XxXxxxxx County,
Texas, covering 40 acres, more or less, being more specifically described
as the NE/4 of the NE/4 of BS&F Survey, Section 45, A-22.
14. Oil, Gas and Mineral Lease dated effective March 12, 2003, between
Xxxxx Xxxx Xxxxx, as Lessor, and HHC Exploration, Inc., as Lessee, recorded
in Volume 422, pages 257-259, of the Deed Records of XxXxxxxx County,
Texas, covering 40 acres, more or less, being more specifically described
as the NE/4 of the NE/4 of BS&F Survey, Section 45, A-22.
15. Oil, Gas and Mineral Lease dated May 17, 2004, from Xxxxxx Xxxxxx
Xxxxxxxx, Xx., as Lessor, to US Enercorp, LLC, as Lessee, recorded in
Volume 430, Page 239, of the Deed Records of XxXxxxxx County, Texas,
covering 40.43 acres, more or less, being more specifically described as
the NE/4 of the NE/4 of BS&F Survey, Section 45, A-22.
16. Oil, Gas and Mineral Lease dated June 8, 2004, from Xxxxx X. Xxxxxxxx,
et al., as Lessors, to Enercorp, LLC, as Lessee, recorded in Volume 432,
Page 314, of the Deed Records of XxXxxxxx County, Texas, covering 40.43
acres, more or less, being more specifically described as the NE/4 of the
NE/4 of BS&F Survey, Section 45, A-22.
17. Oil, Gas and Mineral Lease dated October 29, 2004, from Xxx Xxxxx
Xxxxxxx, as Lessor, to US Enercorp, Ltd., as Lessee, recorded in Volume
433, Page 384, of the Deed Records of XxXxxxxx County, Texas, covering 40
acres, more or less, being more specifically described as the NE/4 of the
NE/4 of BS&F Survey, Section 45, A-22.
EXHIBIT B TO PURCHASE & SALE AGREEMENT
ASSIGNMENT OF OIL AND GAS LEASES AND XXXX OF SALE
-------------------------------------------------
STATE OF TEXAS SEC.
SEC.
COUNTY OF XXXXXXXX SEC.
WHEREAS, Xxxxxx X. Xxxxx ("Assignor") owns a 1.75% working interest in the
oil and gas leases covering lands in XxXxxxxx County, Texas, which leases are
described in Exhibit A, attached hereto and made a part hereof for all purposes.
Such leases are referred to hereinafter as the "Subject Leases";
WHEREAS, Assignor's undivided interest in the Subject Leases and the oil
and/or gas xxxxx located on the properties covered by the Subject Leases and all
of the personal property, fixtures and improvements appurtenant to the xxxxx and
used in connection with the operation thereof are hereinafter referred to as the
"Subject Property"; and
WHEREAS, Assignor has agreed to assign all of his interest in the Subject
Property to New Century Energy Corp. ("NCEY"), with offices at 0000 Xxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000;
NOW, THEREFORE:
In consideration of the sum of Ten and 00/100 Dollars ($10.00) and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, Assignor has, subject to the terms and conditions herein
set out, GRANTED, BARGAINED, SOLD, TRANSFERRED, CONVEYED and ASSIGNED, and does
hereby GRANT, BARGAIN, SELL, TRANSFER, CONVEY and ASSIGN, all of Assignor's
interest in and under the Subject Property to NCEY, which is hereinafter
referred to as "Assignee".
This conveyance and assignment is subject to all of the terms, conditions,
stipulations and reversions of the Subject Leases, and is further made subject
to the following:
- that certain assignment of oil and gas leases from Enercorp, LLC
to Xxxxxx Resources Company, et al., dated June 20, 2004, but
effective as of November 20, 2003, and recorded in Volume 431, at page
103, of the Deed Records of XxXxxxxx County, Texas;
- that certain assignment of oil and gas leases from Enercorp, LLC
to Xxxxxx Resources Company, et al., dated August 20, 2004, and
recorded in Volume 432, at page 12, of the Deed Records of XxXxxxxx
County, Texas;
- that certain Declaration of Pooled Unit for the U.S. Enercorp,
LLC-Xxxxxxxx-Xxxxxx Gas Unit, dated April 15, 2004, a counterpart of
which is recorded in Volume 430, at page 225, of the Deed Records of
XxXxxxxx County, Texas;
- those certain unrecorded Exploration and Joint Operating
Agreements dated October 20, 2003, between U. S. Enercorp, LLC and
others, copies of which are available to Assignee;
- that certain purchase and sale agreement relating to the Subject
Property between Assignor and Assignee dated November 1, 2005,
including, but not limited to, the indemnity obligations found in such
purchase and sale agreement.
TO HAVE and TO HOLD the above described premises, together with all and
singular the rights and appurtenances thereto in anywise belonging unto the said
Assignee, its successors and assigns forever; and, Assignor does hereby bind
himself, his heirs, successors, executors and administrators to WARRANT and
FOREVER DEFEND all and singular the said premises under the said Assignee, its
successors and assigns against every person whomsoever lawful claiming or to
claim the same or any part thereof, by through or under Assignor, but not
otherwise.
EXCEPT FOR THE ABOVE SPECIAL WARRANTY OF TITLE ASSIGNOR HAS NOT MADE, AND
ASSIGNEE HEREBY EXPRESSLY DISCLAIMS AND NEGATES ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, RELATING TO THE CONDITION OF ANY REAL OR IMMOVABLE PROPERTY,
PERSONAL OR MOVEABLE PROPERTY, EQUIPMENT, INVENTORY, MACHINERY AND FIXTURES
CONSTITUTING THE SUBJECT PROPERTY INCLUIDING WITHOUT LIMITATION (i) ANY IMPLIED
OR EXPRESS WARRANTY OF MERCHANTABILITY, (II) ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, (iii) ANY EXPRESS OR IMPLIED WARRANTY OF
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (iv) ANY EXPRESS OR IMPLIED
WARRANTY OF FREEDOM FROM DEFECTS WHETHER KNOWN OR UNKNOWN, (v) ANY EXPRESS OR
IMPLIED WARRANTY REGARDING ENVIRONMENTAL LAWS, THE RELEASE OF MATERIAL INTO THE
ENVIRONMENT (INCLUDING NATURALLY OCCURRING RADIOACTIVE MATERIAL), OR PROTECTION
OF THE ENVIRONMENT OR HEALTH, OR (vi) PRODUCTION RATES, RECOMPLETION
OPPORTUNITIES, DECLINE RATES, GEOLOGICAL OR GEOPHYSICAL DATA, OR
INTERPRETATIONS, THE QUALITY, QUANITITY, RECOVERABILITY OR COST OF RECOVERY OF
ANY HYDROCARBON RESERVES, ANY PRODUCT PRICING ASSUMPTIONS, OR THE ABILITY TO
SELL OR MARKET ANY HYDROCARBONS. IT IS THE EXPRESS INTENTION OF ASSIGNOR AND
ASSIGNEE THAT THE REAL OR IMMOVABLE PROPERTY, PERSONAL OR MOVEABLE PROPERTY,
EQUIPMENT, INVENTORY, MACHINERY AND FIXTURES COMPRISING THE SUBJECT PROPERTY
SHALL BE CONVEYED TO ASSIGNEE "AS IS" AND IN THEIR PRESENT CONDITION AND STATE
OF REPAIR.
THIS ASSIGNMENT SHALL BE WITHOUT ANY WARRANTY OR REPRESENTATION OF TITLE,
EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUANTITY,
QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM REDHIBITORY VICES OR
DEFECTS, CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OR MERCHANTABILITY OF THE
SUBJECT PROPERTY OR ITS FITNESS FOR ANY PURPOSE AND WITHOUT ANY OTHER EXPRESS,
IMPLIED, STATUTORY OR OTHER WARRANTY OR REPRESENTATION WHATSOEVER. ASSIGNEE
SHALL HAVE INSPECTED OR WAIVED ITS RIGHT TO INSPECT THE SUBECT PROPERTY FOR ALL
PURPOSES AND SATISFIED ITSELF AS TO ITS PHYSICAL AND ENVIRONMENTAL CONDITION,
BOTH SURFACE AND SUBSURFACE, INCLUDING BUT NOT LIMITED TO CONDITIONS
SPECIFICALLY RELATED TO THE PRESENCE OR RELEASE OR ONSITE DISPOSAL OF HAZARDOUS
SUBSTANCES, AND THE CONDITION OF ANY WELL CASING, TUBING OR DOWNHOLE EQUIPMENT.
ASSIGNEE IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE SUBJECT PROPERTY, AND
ASSIGNEE SHALL ACCEPT ALL OF THE SAME IN THEIR "AS IS, WHERE IS" CONDITION. IN
ADDITION, ASSIGNOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS,
RECORDS, PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER
FURNISHED OR MADE AVAILABLE TO ASIGNEE IN CONNECTION WITH THIS ASSIGNMENT
INCLUDING, WITHOUT LIMITATION, ANY DESCRIPTION OF THE SUBJECT PROPERTY, PRICING
ASSUMPTIONS, OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY)
ATTRIBUTABLE TO THE SUBJECT PROPERTY OR THE ABILITY OR POTENTIAL OF THE SUBJECT
PROPERTY TO PRODUCE HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE SUBJECT
PROPERTY, OR ANY OTHER MATTERS CONTAINED IN THE PROPRIETARY DATA OR ANY OTHER
MATERIALS FURNISHED OR MADE AVAILABLE TO ASSIGNEE BY ASSIGNOR OR BY ASSIGNOR'S
AGENTS OR REPRESENTATIVES. ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS,
INFORMATION AND OTHER MATERIALS FURNISHED BY ASSIGNOR OR OTHERWISE MADE
AVAILABLE TO ASSIGNEE ARE PROVIDED ASSIGNEE AS A CONVENIENCE AND SHALL NOT
CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST ASSIGNOR. ANY RELIANCE ON OR
USE OF THE SAME SHALL BE AT ASSIGNEE'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED
BY LAW.
ASSIGNOR AND ASSIGNEE CERTIFY THAT THEY ARE NOT "CONSUMERS" WITHIN THE
MEANING OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT,
SUBCHAPTER E OF CHAPTER 17, SECTIONS 17.41, ET SEQ., OF VERNON'S TEXAS CODE
ANNOTATED, BUSINESS AND COMMERCE CODE, AS AMENDED (THE "DTPA") IF THE INTERESTS
ARE LOCATED IN TEXAS. ASSIGNEE HEREBY WAIVES ITS RIGHTS UNDER THE DTPA, A LAW
-------------------------------------------------------
THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN
-------------------------------------------------------------------------------
ATTORNEY OF ITS OWN SELECTION, ASSIGNEE VOLUNTARILY CONSENTS TO THIS WAIVER. TO
--------------------------------------------------------------------------------
EVIDENCE ITS ABILITY TO GRANT SUCH WAIVER, ASSIGNEE REPRESENTS TO ASSIGNOR THAT
--------------------------------------------------------------------------------
(I) IT IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION; (II) IT IS
--------------------------------------------------------------------------------
REPRESENTED BY LEGAL COUNSEL IN ENTERING INTO THIS AGREEMENT; AND (III) SUCH
--------------------------------------------------------------------------------
LEGAL COUNSEL WAS NOT DIRECTLY OR INDIRECTLY IDENTIFIED, SUGGESTED, OR SELECTED
--------------------------------------------------------------------------------
BY ASSIGNOR OR AN AGENT OF ASSIGNOR.
------------------------------------------
Assignee has been provided certain financial information relating to the
ownership and operation of the Subject Property for the period commencing from
the date of the first modern leases, through the Effective Date (the "Financial
Information"). EXCEPT AS PROVIDED IN THIS AGREEMENT, WITH RESPECT TO THE
SUBJECT PROPERTY'S FINANCIAL INFORMATION, ASSIGNOR, AFFILIATED ENTITIES AND
THEIR CONSULTANTS MAKE NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS, STATUTORY
OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATION AND WARRANTY, AS TO
(i) THE ACCURACY, COMPLETENESS, OR MATERIALITY OF ANY FINANCIAL INFORMATION
FURNISHED TO ASSIGNEE IN CONNECTION WITH THE SUBJECT PROPERTY; (ii) THE
CONDITION, QUALITY AND QUANTITY OF THE SUBJECT PROPERTY; (iii) THE PRESENT OR
FUTURE VALUE OF THE ANTICIPATED INCOME, COSTS OR PROFITS, IF ANY, TO BE DERIVED
FROM THE SUBJECT PROPERTY; OR (iv) THE ENVIRONMENTAL CONDITION OF THE SUBJECT
PROPERTY. ANY FINANCIAL INFORMATION FURNISHED BY ASSIGNOR IS PROVIDED TO
ASSIGNEE AS A CONVENIENCE AND ASSIGNEE'S RELIANCE ON OR USE OF THE SAME IS AT
ASSIGNEE'S SOLE RISK.
This instrument may be executed in any number of counterparts, and each
counterpart shall be deemed to be an original instrument, but the signature and
acknowledgement pages of any or all of such counterparts may be consolidated and
shall constitute but one assignment.
EXECUTED on the date of the acknowledgement of Assignor, but to be
effective as of October 1, 2005.
ASSIGNOR: XXXXXX X. XXXXX
-----------------------------------
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF Sec.
------------------
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXX, an individual known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of November, 2005.
---------
---------------------------------
Notary Public, State of Texas
