PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement Agreement dated as of the 5th day of May,1998,
execute by XXXXXXX CORPORATION, a Texas corporation; X.X. XXXXXXXXX; XXX X.
XXXXXXXX; XXXXX X. XXXXXX; XXXX XX XXXXXX; XXXXX X. XXXXX; X. XXXX; XXXXX X.
XXXXX, TRUSTEE OF THE XXXXXX TRUST 1976; XXXXX XXX XXXXXX; XXXX XXXX XXXXXX; an
XXXXX X. plus XXXXXXXX EXPLORATION, INC. an XXXXXXX X. SHRA ER (the Xxxxxxxx
Group), (in ivi ually, an collectively, an ODESSA EXPLORATION, INCORPORATED ,
Delaware corporation, ('Buyer').
In consideration of the mutual promises containe herein, the benefits to be
erive byeach party h ereun er an other goo an valuable consi eration the receipt
an sufficiency ofwhich are hereby acknowle ge , Sellers an Buyer agree as
follows:
ARTICLE I
PURCHASE AND SALE
1.01 - Purchase and Sale - Subject to the terms an con itions of this Agreement,
Sellers agree to sell an convey to Buyer ad Buyer agrees to purchase an pay for
the following describe assets (hereinafter referre to as the Properties:
(a) The interests escribe in Exhibit A hereto in an to the oil an gas
leases escribe in Exhibit hereto (the Leases ) insofar as they cover the lan
(the Lan s also escribe in Exhibit hereto, together with correspon ing un ivi e
interests in
(i) all rights, privileges, benefits, an powers conferre upon the hol er of
the Leases with respect to the use an occupation of the surface of the Lan s
that may be necessary, convenient, or inci ental to the possession an enjoyment
of the Leases,
(ii) all rights in respect of any xxxxx or unitize acreage locate in whole
or in part within the Lan s by virtue of the Leases, inclu ing rights to pro
uction from the pool or unit allocate to any lease being a part thereof, regar
less of whether such pro uction is from the Lan s,
(iii) all rights, options, titles, an interests of Sellers granting Sellers
the right to obtain, or otherwise earn interests within the Lan s no matter how
earned,
(iv) all tenements, here itaments, an appurtenances belonging to any of the
foregoing, an
(v) any an all geological ata an reports, subject to all applicable
licensing an other agreements an all restrictions on transfer, inclu ing but not
limite to all well logs, core reports, seismic ata, interprete maps, contour
maps, isopach maps, etc.
(b) All permits, licenses, servitu es, rights-of-way, ivision or ers, gas
purchase an sale agreements, inclu ing without limitation gas contracts, cru e
oil purchase an sale agreements (wherein Sellers are selling parties), surface
leases, farmin agreements, farmout agreements, bottom-hole agreements, acreage
contribution agreements, operating agreements, unit agreements, processing
agreements, options, leases of equipment or facilities, an other contracts,
agreements, an rights that are owne by Sellers in whole or in part, an that are
appurtenant to the Properties or use or hel for use in connection with the
ownership or operation of the Properties or with the pro uction, treatment,
sale, or isposal of water, hy rocarbons an associate substances therefrom or
thereon; an
(c) All of the real, personal an mixe property use in the operation of the
Properties (whether locate on or off the Properties, but exclu ing all vehicles
use in the operation of the Properties) owne by Sellers in whole or in part or
cre ite to the joint account of Seller inclu ing, but not limite to (i) the
xxxxx ( Xxxxx ) escribe on Exhibit hereto, all wellhea equipment, fixtures
(inclu ing, but not limite to, fiel separators an liqui extractors), pipe,
casing, an tubing; (ii) all pro uction, gathering, treating, processing,
compression, ehy ration, salt water isposal, injection, gathering line an
pipeline equipment an facilities; (iii) all tanks, machines, equipment, tools,
ies, vessels an other facilities; an
( ) All of the files, recor s, ocuments, correspon ence an ata now in
the possession or control of Sellers that relate to the items escribe in
sub-paragraphs (a), (b), or (c) above, without 1imitation (the Recor s ).
1.02 Effective Time . The purchase and sale of the Properties shall be
effective as of 7:00 a.m. on May 1, 1998, local time at the location of the
Properties (herein calle the Effective Time ).
ARTICLE II
PURCHASE PRICE
2.01 - Purchase Price . The purchase price payable by Buyer for the
Properties shall be Nine Million One Hun re Forty-Three Thousan an No/100
ollars ($9,143,000.00) cash, in imme iately available fun s (the Purchase
Price ).
2.02 - A justments to Purchase Price . The Purchase Price shall be
subject to a justment as follows:
(a) The Purchase Price shall be a juste upwar as follows:
(i) The value of all merchantable, allowable oil in storage at the
Effective Time, above the pipeline connection;
(ii) The amount of all verifiable expen itures un er applicable
operating agreements or other similar arrangements or agreements pai by
Sellers in connection with the operation of the Property in accor ance with
this Agreement for work actually performe subsequent to the Effective Time;
(iii) Such increases as are ue to Upwar A justments ( efine below) as
provi e in Article V hereof;
(iv) Any other amount agree upon by Sellers an Buyer.
(b) The Purchase Price shall be a juste ownwar as follows:
(i) Procee s receive by Sellers from the sale of oil gas or other hy
rocarbons attributable to the Properties an which are pro uce after the
Effective Time;
(ii) An amount equal to all unpai a valorem, property, pro uction,
severance an similar taxes an assessments (but not inclu ing income taxes)
base upon or measure by the ownership of property or the pro uction of
hy rocarbons or the receipt of procee s therefrom accruing to the
Properties prior to the Effective Time (Taxes will be prorate base on 1997
taxes);
(iii) Any re uctions for efective Interests as provi e in Article V;
(iv) Any casualty losses; an
(v) Any other amount agree upon by Sellers an Buyer;
(c) The Purchase Price shall be a juste upwar or ownwar , as
necessary, as follows:
(i) to the extent Sellers '92 actual working interest an net revenue
interest in each of the xxxxx iffers than that shown on Exhibit "A;" an
(ii) any material non-consent operations in properties which result in
an increase or ecrease in Sellers '92 interest in the property;
2.03 - Allocation of Purchase Price. Each party will use its own
allocation of the Purchase Price. In the event there is a efective Interest
or Environmental Con ition affecting a Property, the parties shall mutually
agree upon the value of such affecte Property.
ARTICLE III
Representations an Warranties
3.01 - Representations an Warranties of Sellers . Sellers severally,
but not jointly, represent an warrant to Buyer as follows.
(a) As to any corporate Seller, such Seller is a corporation uly
organize , vali ly existing an in goo xxxx ing un er the laws of its juris
iction of incorporation, is legally authorize to con uct business in each
juris iction where it con ucts business, an has all requisite corporate
power an authority to own an lease the properties an assets it currently
owns an leases an to carry on its business as such business is currently
con ucte .
(b) Sellers have all requisite power an authority to execute an eliver
this Agreement, to consummate the transactions contemplate hereby an to
perform all the terms an con itions hereof to be performe by them. The
execution an elivery of this Agreement by Sellers, the performance by
Sellers of all the terms an con itions hereof to be performe by them an the
consummation of the transactions contemplate hereby have been, or will be,
uly authorize an approve by the Boar of irectors of Sellers as to each
corporate Seller. This Agreement has been uly execute an elivere by Sellers
an constitutes the vali an bin ing obligation of Sellers, enforceable
against them in accor ance with its terms, except as such enforceability
may be limite by bankruptcy, insolvency or other laws relating to or
affecting the enforcement of cre itors rights generally an general
principles of equity (regar less of whether such enforceability is consi
ere in a procee ing in equity or at law).
(c) This Agreement an the execution an elivery hereof by Sellers o
not, an the fulfillment an compliance with the terms an con itions hereof
an the consummation of the transactions contemplate hereby will not:
(i) Conflict with, or require the consent of any person un er, any
of the
terms, con itions or provisions of the articles or certificate of
incorporation, as applicable, or bylaws of any corporate Seller;
(ii) Violate any provision of, require any filing, consent,
authorization or approval un er, any legal requirement applicable to
or bin ing upon Sellers;
(iii) Conflict with, result in a breach of, constitute a efault un er
(without regar to requirements of notice or the lapse of time or both),
accelerate or permit the acceleration of the performance require by, or
require any consent, authorization or approval un er, (A) any mortgage, in
enture, loan, cre it agreement or other agreement or instrument evi encing
in ebte ness for borrowe money to which any Seller is a party or to which
any Seller is boun or to which any of the Properties owne by Sellers is
subject, or (B) any lease, license, contract or other agreement or
instrument to which Sellers are a party or by which they are boun or to
which any of the Properties owne by them are subject; or
(iv) Result in the creation or imposition of any lien, charge or other
encumbrance upon the Properties.
(v) Sellers are not in efault un er, an no con ition exists that with
notice or lapse of time or both woul constitute a efault un er, (i) any
mortgage, in enture, loan, cre it agreement or other agreement or
instrument evi encing in ebte ness for borrowe money to which Sellers are a
party or by which Sellers are boun or to which any of the Properties are
subject, or any other agreement, contract, lease, license or other
instrument, (ii) any or er, ju gment or ecree of any court, commission,
boar , agency or other governmental bo y, or (iii) any law, statute, or
inance, ecree, or er, rule or regulation of any governmental authority.
(e) Except as provide for or disclose in Exhibit B attache hereto an
e a part hereof, since May 1, 1998, there has not been an will not be:
(i) Any material amage, estruction or loss to or of the Properties or
other assets, whether or not covere by insurance;
(ii) Any sale, lease or other isposition of the Properties or other
assets, except as permitte by the terms of this Agreement;
(iii) Any mortgage, ple ge or grant of a lien or security interest
against any of the Properties, other than in the or inary course of
business (except any such encumbrance that will be release at or before the
Closing); or
(iv) Any contract or commitment to o any of the foregoing.
(f) Exhibit C sets forth a list of the following contracts,
agreements, plans an commitments to which Sellers are parties or by which
Sellers or any of the Properties are boun .
Any contract, commitment or agreement that involves aggregate expen
itures by Sellers of more than $100,000.00 per year;
(ii) Any in enture, trust agreement, loan agreement or note un er
which Sellers have outstan ing in ebte ness, obligations or liabilities for
borrowe money;
(iii) Any lease, sublease, installment purchase or similar arrangement
for the use or occupancy of real property (other than the Sellers' Leases)
that involves aggregate expen itures by Sellers of more than $100,000.00
per year, together with a list of the location of such lease property, the
ate of termination of such arrangements, the name of the other party an the
annual rental payments require to be ma e for such arrangements;
(iv) Any guaranty, irect or in irect, by any affiliate of Sellers of
any contract, lease or agreement entere into by Sellers;
(v) Any agreement of surety, guarantee or in emnification by Sellers
outsi e of the or inary course of business;
(vi) All Gas Contracts ( efine below) an agreements for the sale of
gas affecting the Properties; an
(vii) All operating agreements.
(g) To the knowle ge of each of the Sellers, there are no material
efects in the personal property an fixtures to be conveye to Buyer pursuant
to the terms hereof which woul prevent the continue operation of the
Properties in accor ance with prior practice.
(h) To the knowle ge of each of the Sellers, all material royalties
(other than royalties hel in suspense), rentals an other payments ue un er
the Leases have been properly an timely pai , an all con itions necessary
to keep the Leases in force have been fully performe . No notices have been
receive by Sellers of any claim to the contrary an to the knowle ge of each
of the Sellers , all of the Leases are in full force an effect.
(i) Except as set forth on Exhibit A attached hereto an ma e a part
hereof, (i) Sellers are not obligate by virtue of any prepayment
arrangement un er any contract for the sale of hy rocarbons an containing a
take or pay or similar provision or pro uction payment or any other
arrangement to eliver hy rocarbons pro uce from the Properties at some
future time without then or thereafter receiving full payment therefor, an
(ii) Sellers have not pro uce a share of gas greater than their
ownership percentage an Sellers are un er no obligation to re uce their
share of pro uction un er any gas balancing agreement or similar contract
to allow un er-pro uce parties to come back into balance.
(j) All a valorem, property, pro uction, severance an similar taxes an
assessments base on or measure by the ownership of property or the pro
uction of hy rocarbons or the receipt of procee s therefrom on the
Properties have been properly pai an all such taxes an assessments which
become ue an payable prior to the Effective Time shall be properly pai by
Sellers.
(k) To the knowle ge of each of the Sellers, all material vali laws,
regulations an or ers of all governmental agencies having juris iction over
the Properties have been an shall continue to be complie with until the
Closing. To the knowle ge of each of the Sellers, all material necessary
permits from governmental agencies having juris iction in connection with
the Properties have been obaine an all require reports have been timely,
properly, an accurately ma e an will continue to be timely, properly an
accurately ma e through Closing. To the knowle ge of each of the Sellers
base on Texas Railroa Commission recor s, all xxxxxx xxxxx locate on the
Properties have been properly xxxxxx an there are no aban one unplugge
wellbores locate on the Properties which goo oil fiel practice woul require
plugging.
(l) Sellers have incurre no liability, contingent or otherwise, for
brokers '92 or fin ers '92 fees relating to the transactions contemplate by
this Agreement for which Buyer shall have any responsibility whatsoever.
(m) To the knowle ge of each of the Sellers, none of the Properties is
subject to any top leases or reversionary interests, an there exists no
unrecor e ocument or agreement which may result in impairment or loss of
Sellers '92 ability to convey the Property.
(n) With respect to the Basic ocuments ( efine below), in all material
respects to the knowle ge of Sellers: (i) all of such Basic ocuments are in
full force an effect an are the vali an legally bin ing obligations of the
parties thereto, (ii) Sellers are not in breach or efault with respect to
any material obligations pursuant to any such Basic ocument or any
regulations incorporate therein or governing same; (iii) all material
payments (inclu ing, without limitation, royalties, elay rentals, shut-in
royalties, an joint interest or other xxxxxxxx un er unit or operating
agreements) ue thereun er have been ma e by Sellers or will be ma e by
Sellers prior to Closing; (iv) no other party to any Basic ocument (or any
successor in interest therein) is in breach or efault with respect to any
of its material obligations thereun er, an (v) neither Sellers nor any
other party to any Basic ocument has given or threatene to give notice of
any action to terminate, cancel, rescin or procure a ju icial reformation
of any Basic ocument or any provision thereof.
As use herein the term Basic ocuments shall mean all of the Sellers
'92 Leases, contracts for the sale an purchase of gas pro uce from the
Properties ( Gas Contracts ), farmout, ry hole, bottom-hole, acreage
contribution, purchase an acquisition agreements, area of mutual interest
agreements, salt water isposal agreements, servicing contracts, easement an
/or right-of-way agreements, unitization or pooling agreements an all other
material executory contracts an agreements relating to the Properties.
(o) (i) To the knowle ge of each of the Sellers, Sellers have not
cause or allowe the generation, treatment, storage, isposal or release of
hazar ous substances on the Properties except in accor ance with local,
state, an fe eral statutes, or inances, rules an regulations, (ii) Sellers
have complie with all laws, regulations an or ers of all governmental
agencies having juris iction over the Properties in connection with laws
regar ing protection of the environment, (iii) all material necessary
permits or exemptions have been obtaine from governmental agencies having
juris iction over the Properties in connection witth laws regar ing
protection of the environment, (iv) Sellers have not receive notice of any
procee ing, claim or lawsuit relating to the breach of any law regar ing
protection of the environment an (v) to the best of Sellers '92 knowle ge
no hazar ous substance has ever been ispose of on the Properties except in
accor ance with local, state, an fe eral statutes, or inances, rules an
regulations.
(q) Except as may be set forth in Exhibit attache hereto an ma e a
part hereof, on the ate hereof no suit, action or other procee ing is pen
ing before any court or governmental agency to which Sellers are a party an
which might result in impairment or loss of Sellers '92 title to any part
of the Properties or that might hin er or impe e operation of the
Properties an to the knowle ge of Sellers, no such suit, action or other
procee ing is threatene . Sellers shall promptly notify Buyer of any such
procee ing arising prior to the Closing -.
3.02 - Representations an Warranties of Buyer. Buyer represents an
warrants to the Sellers that:
(a) Buyer is a corporation uly organize , vali ly existing an in goo
xxxx ing un er the laws of its juris iction of incorporation.
(b) Buyer has all requisite corporate power an authority to execute an
eliver this Agreement, to consummate the transactions contemplate hereby an
to perform all the terms an con itions hereof to be performe by it. The
execution an elivery of this Agreement by Buyer, the performance by Buyer
of all the terms an con itions hereof to be performe by it an the
consummation of the transactions contemplate hereby have been uly authorize
an approve by the Boar of irectors of Buyer . This Agreement has been uly
execute an elivere by Buyer an constitutes the vali an bin ing obligation
of Buyer, enforceable against it in accor ance with its terms, except as
such enforceability may be limite by bankruptcy, insolvency or other laws
relating to or affecting the enforcement of cre itors '92 rights generally
an general principles of equity (regar less of whether such enforceability
is consi ere in a procee ing in equity or at law).
(c) This Agreement an the execution an elivery hereof by Buyer oes
not, an the fulfillment an compliance with the terms an con itions hereof
an the consummation of the transactions contemplate hereby will not:
Conflict with, or require the consent of any person un er, any of the
terms, con itions, or provisions of the certificate of incorporation or
bylaws of Buyer;
(ii) Violate any provision of, or require any filing, authorization or
approval un er, any legal requirement applicable to or bin ing upon Buyer;
(iii) Conflict with, result in a breach of, constitute a efault un er
(without regar to requirements of notice or the lapse of time or both)
accelerate or permit the acceleration of the performance require by; or
require any consent, authorization or approval un er, (i) any mortgage, in
enture, loan, cre it agreement or other agreement or instrument evi encing
in ebte ness for borrowe money to which Buyer is a party or by which Buyer
is boun or to which any of its properties is subject or (ii) any lease,
license, contract or other agreement or instrument to which Buyer is a
party or by which it is boun or to which any of its properties is subject;
or
(iv ) Result in the creation or imposition of any lien, charge or
other encumbrance upon the assets of Buyer.
( ) There is no action, suit, procee ing or governmental investigation
or inquiry pen ing, or to the knowle ge of Buyer, threatene against Buyer
or its subsi iaries or any of its properties that might elay, prevent or
hin er the consummation of the transactions contemplate hereby.
ARTICLE IV
COVENANTS
4.01 - Covenants of Sellers. Sellers agree with Buyer that:
(a) Prior to closing, Sellers will continue to make available to Buyer
for examination at Xxxxxxxx Exploration, Inc. '92s ( Xxxxxxxx ) offices in
xxxxx, Colora o, title an other information relating to the Properties
insofar as the same are in Xxxxxxxx '92 possession an will cooperate with
Buyer in Buyer '92s efforts to obtain, at Buyer's expense, such a itional
information relating to the Properties as Buyer may reasonably esire.
Sellers shall permit Buyer, at Buyer '92s expense, to inspect an photocopy
such information an recor s at any reasonable time but only to the extent,
in each case, that Sellers may o so without violating any obligation of
confi ence or contractual commitment to a thir party. Sellers shall not be
obligate to furnish any up ate abstracts, title opinions or a itional
information, but shall cooperate with Buyer in Buyer's efforts to obtain,
at Buyer '92s expense, such a itional title information as Buyer may
reasonably eem pru ent.
(b) After the Effective Time an prior to Closing, Sellers have cause
an will continue to cause the Properties to be pro uce , operate an
maintaine in a goo an workmanlike manner consistent with prior practices,
will not aban on any of the Properties, will maintain insurance now in
force with respect to the Properties, will pay or cause to be pai all costs
an expenses in connection therewith, will keep the Sellers '92 Leases in
full force an effect, an will perform an comply with all the covenants an
con itions containe in the Sellers '92 Leases an all agreements relating to
the Properties; provi e , however, in the absence of Buyer's written
consent, Sellers after the Effective Time an prior to the Closing shall not
con uct or authorize any operation on the Sellers '92 Leases requiring
Authority for Expen iture approval by working interest owners un er
applicable operating agreements, or an expen iture of $15,000.00 or more
for the entire 100% of any single project (except emergency operations
where Sellers shall give verbal notice of such emergency followe by written
confirmation within twenty-four (24) hours thereafter).
(c) Without the prior written consent of Buyer, Sellers shall not
enter into any new agreements or commitments with respect to the Properties
except as to the lawsuit isclose on Exhibit , will not mo ify, terminate or
settle any ispute arising out of any of the agreements relating to the
Properties, inclu ing, without limitation, the Basic ocuments, an will not
encumber, sell, transfer, assign, convey, farmout or otherwise ispose of
any of the Properties other than personal property which is replace by
equivalent property or consume in the operation of the Properties.
Sellers shall imme iately make requests of such thir parties in
compliance with applicable agreements, that any require consents be given
or waive an that any preferential rights be waive , provi e , however,
nothing containe in this Section 4.01 shall require Sellers to pay money or
un ertake any a itional legal obligation.
(e) Sellers will permit Buyer '92s authorize representatives to
consult with Sellers an their agents an employees uring reasonable business
hours an to con uct, at Buyer's sole risk an expense, on-site inspections,
tests an inventories of the Properties an inspect an examine all well logs
an geological an geophysical ata relating to such properties.
(f) Sellers will use their best efforts to obtain the satisfaction of
the con itions to Closing set forth in Section.6.01 hereof.
(g) Sellers shall not solicit from any thir party any proposals or
offers or enter into any negotiations relating to the isposition of any of
the Properties.
4.02 - Covenants of Buyer. Buyer covenants an agrees with Sellers as
follows:
(a) Buyer will use its best efforts to obtain the satisfaction of the
con itions to Closing set forth in Section 6.02 hereof.
(b) In the event that this Agreement is terminate or, if not terminate
, until the Closing, the confi entiality of any ata or information receive
by Buyer regar ing the business an assets of Sellers shall be maintaine by
Buyer an is representatives in accor ance with the agreements execute by
Buyer.
ARTICLE V
TITLE MATTERS, DEFECTIVE INTERESTS
ENVIRONMENTAL ISSUES
5.01 - Defensible Title
(a) As use herein, the term efensible Title shall mean, as to the
Properties an each of them, such title which
(i) is free an clear (except for Permitte Encumbrances) of mortgages,
liens, security interests, ple ges, charges, encumbrances, claims,
limitations, irregularities, bur ens, or efects, an (A) is otherwise only
subject to contractually bin ing arrangements which are conventional an
which are customarily experience in the oil an gas in ustry an (B) is not
subject to any matters which will result in a breach of any warranty ma e
by Sellers hereun er,
(ii) entitles Sellers to receive not less than the Net Revenue
Interests set forth in Exhibit hereto of all oil, gas an associate liqui an
gaseous hy rocarbons pro uce , save an markete from the Properties after e
ucting all royalty, overri ing royalty an other bur ens (an such interest
will not change in the future except as isclose on Exhibit A; an
(iii) obligates Sellers to bear costs an expenses relating to the
maintenance, evelopment, an operation of the Properties in an amount not
greater than the Working Interests set forth in Exhibit hereto an such
interest will not change in the future except as isclose on Exhibit A,
unless there is a correspon ing an proportionately equal increase in the
Net Revenue Interest.
(b) The term Permitte Encumbrances as use
herein shall mean:
(i) Lessors '92 royalties, overri ing royalties; an other bur ens,
reversionary interests an similar bur ens if the net cumulative effect of
such bur ens oes not operate to re uce the Net Revenue Interests of any of
the Properties to less than the Net Revenue Interest set forth in Exhibit
A;
(ii) Preferential rights to purchase an require thir party consents to
assignments an similar agreements with respect to which prior to Closing
(A) waivers or consent are obtaine from the appropriate parties, (B) the
appropriate time perio for asserting such rights has expire without an
exercise of such rights, an (C) with respect to consent, such consent is
not necessary to the vali ity of an assignment to Buyer an nee not be
obtaine prior to an assignment (the a equacy of such consent shall be
etermine by Buyer in its reasonable ju gment);
(iii) Liens for taxes or assessments not yet ue or not yet elinquent
or; if elinquent, that are being conteste in goo faith in the normal course
of business;
(iv) All rights to consent by, require notices to, filings with, or
other actions by governmental entities in connection with the sale or
conveyance of oil an gas leases or interests therein if the same are
customarily obtaine subsequent to such sale or conveyance;
(v) The terms an con itions of the Leases;
(vi) Rights of reassignment in the event of intentional release or
surren er of any of the Properties;
(vii) Easements, rights-of-way, servitu es, permits, surface leases an
other rights in respect of surface operations, pipelines, grazing, or the
like; an easements for streets, alleys, highways, pipelines, telephone
lines, power lines, railways an other easements, an rights-of-way, on, over
or in respect of any of the Properties;
(viii) Rights reserve to or veste in any municipality or governmental,
statutory or public authority to control or regulate any of the Properties
in any manner, an all applicable laws, rules an or ers of any governmental
authority;
(ix) Such Title efects ( efine below) or other efects as Buyer has
waive , an
(x) Liens release at Closing as shown on Exhibit
(c) The term Title efects as use herein means any encumbrances,
encroachments, irregularities, efects or objection to the Properties
(expressly exclu ing Permitte Encumbrances), that alone or in combination
ren xx Xxxxxxx '92 title to the Properties less than efensible Title.
5.02 - efective Interests.
(a) " efective Interests shall mean:
(1) That portion of the Properties affecte by a Title efect.
(2) That portion of the Properties materially an a versely affecte by
Sellers '92 noncompliance with the material laws, rules, regulations, or
inances or or ers of any governmental agency or authority having juris
iction over any portion of the Properties.
(3) That portion of the Properties which on-site inspection reveals
requires removal of use equipment or property, clean-up of spills or umps,
plugging of aban one xxxxx, repair of broken, efective or inoperable
equipment or of equipment which is incapable of performing its inten e
function, or other similar matters.
(4) That portion of the Properties with respect to which any
preferential right to purchase is exercise or for which consent is enie
unless Buyer elects to receive the consi eration receive from the exercise
of such preferential right to purchase.
(5) That portion of the Properties affecte by any suit, action or
other procee ing before any court or government agency that woul result in
substantial loss or impairment of Sellers '92 title to any material portion
of the Properties, or a material portion of the value thereof.
(6) That portion of the Properties estroye by fire or other casualty,
or with respect to which there is a taking or threatene taking in con
emnation or un er right of eminent omain.
(b) Buyer shall give S xxxxxx notice of efective Interests not later
than fifteen (15) ays prior to the Closing ate. Such notice shall be in
writing an shall inclu e (i) a escription of the efective Interest, (ii)
the reason Buyer believes such Properties to be a efective Interest, an
(iii) the propose allocate value of the efective Interests. Buyer shall be
eeme to have waive all efective Interests of which Sellers have not been
given such notice; provi e , however, that such waiver shall not apply with
respect to any efective Interest if Buyer coul not reasonably have known of
it before the ate such notice is ue.
(c) Upon being notifie by Buyer pursuant in Section 5.02(b) of any
asserte efective Interest the Sellers shall give written counter-notice to
Buyer within ten (10) ays that they (i) inten to correct the asserte
efective Interest, or (ii) they o not inten to correct the efective
Interest, or (iii) they isagree that the asserte efective Interest exists.
If Sellers gives counter-notice of intent to correct such asserte efective
Interest, they shall have a perio of thirty (30) ays from the receipt of
the Buyer '92s notice (the Cure Perio ) to correct such asserte efective
Interest at their own expense, an the Closing ate shall be exten e until
the thir ay after the earliest to occur of the following: (A) the efective
Interest is correcte , (B) the Sellers notify Buyer they cannot correct the
efective Interests, an (C) the expiration of the Cure Perio . The failure
of Sellers to eliver written counter-notice shall be eeme to be an a
mission of the existence of such efective Interest an a waiver of Sellers
'92 right to correct such efective Interest (an an agreement that the
amount by which the agree allocate value of the efective Interest to which
the efective Interest relates is the amount state in Buyer '92s notice
pursuant to clause (iii) of Section 5.02(b)).
(i) efective Interests shall be exclu e from the Properties to be
purchase by Buyer hereun er, an the Purchase Price shall be re uce in accor
ance with Section 2.02 hereof by an amount equal to the agree allocate
value thereof unless (i) prior to expiration of the Cure Perio , the basis
for treating such Properties as efective Interests has been remove , (ii)
Buyer agrees to waive the relevant efective Interest an purchase the
efective Interest notwithstan ing the efect, or (iii) Buyer an Sellers
agree (or have been eeme to have agree ) to an amount by which the agree
allocate value of the efective Interests has been re uce an the Purchase
Price is re uce by such amount in accor ance with Section 2.02 hereof.
(e) In etermining which portions of the Properties are efective
Interests, it is the intent of the parties to inclu e, when possible, only
that portion of the Properties affecte by the efect. If the agree allocate
value of efective Interests cannot be etermine irectly from Exhibit B
because the efective Interests constitute a property inclu e within, but
not totally comprising, the Properties to which the agree allocate value
relates, Buyer an Sellers shall attempt, where feasible, to proportionately
re uce the agree allocate value.
5.03 - I entification of Upwar A justment. If prior to Closing,
Sellers notify Buyer that there is any inaccuracy in Exhibit "A" whereby
Sellers own more than represente thereon, Buyer an Sellers shall en eavor
to agree upon an amount by which the Purchase Price shall be increase to
reflect such increase value in accor ance with Section 2.02 (the Upwar A
justment ). If Buyer an Sellers fail to agree to the Upwar A justment,
Sellers may elect to have that portion of the Properties subject to such
increase in value exclu e from the Properties to be purchase by Buyer.
5.04- Environmental Information an Inspections . b Promptly upon the
execution of this Agreement, Sellers shall make available to the Buyer such
information that is in their possession or control, or to which it has
access, relating to the environmental con ition of the Properties, sai
information to inclu e, but not to be limite to, any an all information
pertaining to cru e oil an pro uce water that may have been xxxxxx or
ispose of on the Properties an the locations thereof; pits an pit
closures locate on the Properties; burial sites locate on the Properties;
lan farming sites; lan sprea ing sites; un ergroun injection sites; an soli
waste isposal sites. Buyer also shall have the right, at its sole risk an
expense, to con uct or have con ucte a Phase I Environmental Au it of such
of the Properties as it esignates. To enable Buyer to con uct the Phase I
Environmental Au it, Sellers will provi e Buyer (an its representatives)
with reasonable access to the Properties; to Sellers' books, recor s, an
files relating to the Properties; an to current employees of Sellers. In
con ucting the Phase I Environmental Au it, Buyer shall treat, an will
cause all of its representative, agents, consultants, contractors, or
subcontractors to treat, all information obtaine by Buyer pursuant to the
au it as strictly confi ential except to the extent such information
is otherwise available to the general public an will not isclose the
results without the prior written consent of Sellers, except to the extent
that such results are legally require to be isclose by Buyer in which case,
Buyer shall provi e Sellers with reasonable notice prior to making such
isclosure. Sellers shall have the right to have a representative present
uring any inspection of the Properties an uring any interviews of Sellers'
employees, con ucte as a part of the Phase I Environmental Au it. Buyer
shall coor inate these activities with Sellers so as to allow Sellers to
have a representative present if they so esire.
5.05 - Notice of Environmental Con ition .
Not later than fifteen (15) ays prior to Closing, Buyer shall
give Sellers written notice of any con ition (referre to herein as an
"Environmental Con ition") in the air, lan , soil, surface, subsurface
strata, surface water, groun water, or se iments in any one or more of
the Properties, which causes that Property or Properties to be subject
to reme iation un er, or not in compliance with any law relating to
pollution, the protection of the environment, or the release or
isposal of waste materials. Such notice shall be in writing an shall
inclu e (i) a escription of the portion of the Properties (if less
than all) affecte by the Environmental Con ition, (ii) the reason
Buyer believes such Environmental Con ition to exist, an (iii) the
action that is require to cure or remove the Environmental Con ition.
Buyer shall be eeme to have waive all Environmental Con itions of
which Seller has not been given such notice.
5.06 - Environmental Reme iation . b Upon being notifie pursuant
to Section 5.05 of any asserte Environmental Con ition, Sellers shall
have thirty (30) ays within which to provi e Buyer with ocumentation
that the Environmental Con ition has been cure or remove . If Seller
is unable or unwilling to cure or remove the Environmental Con ition
within such perio , then Buyer shall have the option of (i)
eliminating such property from this Agreement an procee ing to Closing
on the remaining Properties, with the Purchase Price to be a juste
ownwar by the agree allocate value of the affecte property; or (ii)
waiving the Environmental Con ition with respect to the affecte
property an procee ing to Closing on all Properties, with the full
payment of the Purchase Price. The Closing ate as agree upon herein
shall be exten e for such perio of time as may be necessary to provi e
Seller the perio of time provi e for in this paragraph within which to
cure or remove Environmental Con itions.
ARTICLE VI
CONDITIONS TO CLOSING
6.01 - Con itions to the Obligations of Buyer. The obligations of
Buyer to procee with the Closing contemplate hereby are subject to the
satisfaction on or prior to the Closing of all of the following con
itions, any one or more of which may be waive , in whole or in part,
in writing by Buyer.
(a) The representations an warranties ma e herein by Sellers
shall be correct at an as of the Closing as though such
representations an warranties were ma e at an as of the Closing, an
the factual matters containe in any warranty ma e by Sellers to
Sellers '92 knowle ge, or similar language, shall be true an correct
at an as of the Closing without regar to Sellers '92 knowle ge of
same, an Sellers shall have complie with all the covenants hereof
require by this Agreement to be performe by them on or prior to the
Closing.
(b) The Closing hereun er shall not violate any or er or ecree of
any court, agency, commission, tribunal, or other governmental
authority having competent juris iction over the transactions
contemplate by this Agreement
(c) All necessary consents, permission, novations an approvals by
thir parties (inclu ing that of Sellers '92 len ing institutions) in
connection with the sale an transfer of the Properties shall have been
receive prior to Closing, except those governmental consents
customarily generate an receive in the or inary course of business at
a post-closing ate. ( ) The existence of efective Interests which have
not been correcte or properties exclu e pursuant to Section 5.06 will
not re uce the Purchase Price by more than 10%.
6.02 - Con itions to the Obligations of Sellers. The obligations
of Sellers to procee with the Closing contemplate hereby are subject
to the satisfaction at or prior to Closing of all of the following con
itions, any one or more of which may be waive , in whole or in part,
in writing by Sellers.
(a) The representations an warranties ma e herein by Buyer shall
be correct at an as of the Closing as though such representations an
warranties were ma e at an as of the Closing, an Buyer shall have
complie with all the covenants hereof require by this Agreement to be
performe by them at or prior to the Closing.
(b) The Closing hereun er shall not violate any or er or ecree of
any court, agency, commission, tribunal or other governmental
authority having competent juris iction over the transactions
contemplate by this Agreement.
(c) The existence of efective Interests which have not been
correcte or properties exclu e pursuant to Section 5.06 will not re
uce the Purchase Price by more than 10%.
ARTICLE VII
CLOSING
7.01 - Closing
Unless the parties hereto agree otherwise an subject to the con
itions state in this Agreement, the consummation of the transactions
contemplate hereby (herein calle the Closing ) shall be hel at the
offices of Xxxxxxxx, in xxxxx, Colora o, on June 15, 1998. The ate on
which closing occurs is referre to herein as the Closing ate.
7.02 - Closing Obligations . At the Closing, the following events
shall occur, each being a con ition prece ent to the others an each
being eeme to have occurre simultaneously with the others:
(a) Sellers shall assign, transfer, an convey the Properties to
Buyer by an assignment with a special warranty substantially in the
form of Exhibit E attache hereto. Sellers shall also execute such a
itional ee s, conveyances an bills of sale as may be necessary to
convey the Properties to Buyer provi e that any such a itional ee s,
conveyances or bills of sale shall not warrant the con ition of
personal property but shall warrant title by, through an un xx
Xxxxxxx. In a ition to the foregoing, the instruments execute pursuant
to this Section 7.02(a) shall be execute in multiple originals an
counterparts sufficient to facilitate recor ing.
(b) Buyer shall pay the Purchase Price to Sellers by wire
transfer in imme iately available fun s. Buyer is authorize to eliver
an un ivi e 30% of the Purchase Price to Xxxxxxxx for allocation to
the Xxxxxxxx Group an an un ivi e 70% of the Purchase Price to Xxxxxxx
Corporation for allocation to the Xxxxxxx Group.
(c) Sellers shall eliver to Buyer exclusive possession of the
Properties
(d) Each of the Sellers shall provi e a certificate in form an
substance satisfactory to Buyer '92s counsel certifying as to the
matters set forth in Sections 6.01(a), (b), an (c) at an as of the
Closing.
(e) Buyer shall provi e a certificate in form an substance
satisfactory to Sellers '92 counsel certifying as to the matters set
forth in Sections 6.02(a) an (b) at an as of the Closing.
(f) Xxxxxxxx, if it has not previously one so, shall resign as
operator of any of the Properties which it operates. Sellers an Buyer
shall execute (i) Railroa Commission forms P-4 an other appropriate
forms to provi e for the change of operator, if applicable, an (ii)
transfer or ers or letters in lieu thereof irecting all purchasers of
pro uction to make payment to Buyer of procee s attributable to pro
uction from the Properties assigne to Buyer.
(g) Sellers shall eliver to Buyer all sums hel in suspense by
Sellers for any reason together with a report in sufficient etail to
the best of Sellers '92 current knowle ge to allow Buyer to etermine
the reasons such amounts are hel in suspense, an the Properties with
respect to which such amounts are hel in suspense.
(h) Buyer an Sellers shall execute such other ocuments as may be
necessary to effectuate the intent of this transaction.
ARTICLE VIII
OBLIGATIONS AFTER CLOSING
8.01 - Post-Closing Adjustments.
As soon as practicable after the Closing, but not later than 90 ays after the
Closing, Sellers an Buyer shall con uct a post-closing a justment to account for
a justments in Article II.
8.02 - Sales Taxes and Recording Fee.
Buyer shall pay all sales taxes occasione by the sale of the Properties an all
ocumentary, filing an recor ing fees require in connection with the filing an
recor ing of any assignments.
8.03 - Further Assurances .
After Closing, Sellers an Buyer shall execute, acknowle ge an eliver or cause to
be execute , acknowle ge an elivere such instruments an take such other action
inclu ing payment of monies as may be necessary or a visable to carry out their
obligations un er this Agreement an un er any ocument, certificate or other
instrument elivere pursuant hereto or require ly law.
8.04 - Buyer Post-Closing
Obligation . If any time subsequent to the Closing, Buyer comes into possession
of money or property belonging to the Sellers such money or other property shall
be promptly elivere to the Sellers.
8.05 - Sellers Post-Closing Obligations
If at any time subsequent to the Closing, Sellers comes into possession of money
or property belonging to the Buyer such money or other property shall be
promptly elivere to the Buyer.
8.06 - Files an Records
Within ten (10) ays after Closing, Sellers shall eliver the Recor s to Buyer at
Buyer '92s expense.
8.07 - Survival.
The representations, warranties, covenants, agreements an in emnities inclu e or
provi e herein shall survive the Closing for a two-year perio from the Closing
ate.
ARTICLE IX
TERMINATION OF AGREEMENT
9.01 - Termination .
This Agreement an the transactions contemplate hereby may be terminate in the
following instances:
(a) By Buyer if the con itions set forth in Section 6.01 are not satisfie in all
material respects or waive prior to the Closing ate;
(b) By Sellers if the con itions set forth in Section 6.02 are not satisfie in
all material respects or waive prior to the Closing ate; or
(c) At any time by the mutual written agreement of Buyer an Sellers.
9.02 - Liabilities Upon Termination
If Closing oes not occur ue to Sellers '92 violation of the terms of this
Agreement, then Buyer may seek such legal or equitable reme ies as Buyer may
esire, inclu ing, without limitation, amages for the breach or failure of any
representation, warranty, covenant or agreement containe herein an the right to
enforce specific performance of this Agreement. If Closing oes not occur ue to
Buyer's violation of the terms of this Agreement, Sellers may seek such legal or
equitable reme ies as Sellers may esire, inclu ing, without limitation, amages
for the breach or failure of any representations, warranty, covenant or
agreement containe herein an the right to enforce specific performance of this
Agreement.
ARTICLE X
XXXXXXX MONEY
Upon the execution of this Agreement, Buyer has eposite into escrow with
Xxxxxxx, Xxxxx & Xxxxxx, P.C.(the Escrow Agent ), the sum of Two Hun re Seventy
Four Thousan Two Hun re an Ninety an No/100 ollars ($274,290.00)as xxxxxxx money
(the Xxxxxxx Money ). At Closing, the Xxxxxxx Money, less any costs incurre ,
shall be applie against the Purchase Price, an all interest shall be elivere to
Sellers but shall not re uce the Purchase Price. If this transaction fails to
close ue to any breach by Buyer of the terms, con itions, representations, an
warranties foun in this Agreement or ue to Buyer '92s failure to fulfill the con
itions of Section 6.02, then as Sellers '92 exclusive reme y, the Xxxxxxx Money
an all interest xxxxx thereon shall be elivere to Sellers as liqui ate amages.
If this transaction fails to close ue to any breach by Sellers of the terms, con
itions, representations an warranties foun in this Agreement or ue to Sellers
'92 failure to fulfill the con itions of Section 6.01, then as Buyer '92s
exclusive reme y, either (i) the Xxxxxxx Money an all interest xxxxx thereon
shall be elivere to Buyer or (ii) Buyer may enforce specific performance of this
Agreement. If this transaction fails to close for any other reason whatsoever,
then the Xxxxxxx Money an all interest xxxxx thereon shall be elivere to Buyer.
Sellers an Buyer agree to give the Escrow Agent joint instructions for the
elivery of the Xxxxxxx Money, together with any interest xxxxx thereon, in accor
ance with the terms of this Agreement.
ARTICLE XI
INDEMNIFICATION
11.01 Buyer's Indemnification
b . BUYER SHALL DEFEND, INDEMNIFY, AN SAVE AN HOL HARMLESS SELLER S AGAINST ALL
CLAIMS, COSTS, EXPENSES, AN LIABILITIES (INCLU ING COSTS OF EFENSE, EXPERT FEES,
AN OTHER COSTS) WITH RESPECT TO THE PROPERTIES WHICH ACCRUE OR RELATE TO TIMES
AFTER THE EFFECTIVE ATE (BUT NOT INCLU ING THOSE INCURRE BY SELLERS WITH RESPECT
TO THE SALE OF THE PROPERTIES TO BUYER b OR THE NEGOTIATIONS LEA ING TO SUCH
SALE OR THOSE THAT RESULT FROM OR ARE ATTRIBUTABLE TO THE NEGLIGENCE OR WILLFUL
MISCON UCT OF SELLERS, THEIR EMPLOYEES OR AGENTS WITH RESPECT TO THE OPERATION
AN MAINTENANCE OF THE PROPERTIES, AN NOT INCLU ING THOSE THAT RESULT FROM OR ARE
ATTRIBUTABLE TO ANY REPRESENTATION OF SELLERS CONTAINE IN THIS AGREEMENT BEING
UNTRUE OR A BREACH OF ANY WARRANTY OR COVENANT OF SELLERS CONTAINE IN THIS
AGREEMENT).
Sellers' Indemnification
x . XXXXXXX, SEVERALLY BUT NOT JOINTLY, SHALL EFEN , IN EMNIFY, AN SAVE AN HOL
HARMLESS BUYER AGAINST ALL CLAIMS, COSTS, EXPENSES, LIABILITIES (INCLU ING COSTS
OF EFENSE, EXPERT FEES, AN OTHER COSTS) b WITH RESPECT TO THE PROPERTIES WHICH
ACCRUE OR RELATE TO TIMES PRIOR TO THE EFFECTIVE ATE (BUT NOT INCLU ING THOSE
INCURRE BY BUYER WITH RESPECT TO THE PURCHASE OF THE PROPERTIES FROM SELLERS OR
THE NEGOTIATIONS LEA ING TO SUCH PURCHASE, AN NOT INCLU ING THOSE THAT RESULT
FROM OR ARE ATTRIBUTABLE TO ANY REPRESENTATION OF BUYER CONTAINE IN THIS
AGREEMENT BEING UNTRUE OR A BREACH OF ANY WARRANTY OR COVENANT OF BUYER CONTAINE
IN THIS AGREEMENT).
11.03 - Time Limitation.
Any claim against any Sellers pursuant to the in emnification provisions of
Section 11.02 must be brought within two (2) years following the Closing ate.
Sellers '92 obligations un er the in emnity provisions of Section 11.2 shall
expire an be of no further force an effect from an after two (2) years from the
Closing ate, save an except for any claims brought by Buyer prior to such ate. b
11.04 - Notice.
Each in emnifie party hereun er agrees that upon its iscovery of facts giving
rise to a claim for in emnity un er the provisions of this Agreement, inclu ing
receipt by it of notice of any eman , assertion, claim, action or procee ing, ju
icial or otherwise, by any thir party (such thir party actions being
collectively referre to hereinafter as the Claim ), with respect to any matter
as to which it is entitle to in emnify un er the provisions of this Agreement,
it will give prompt notice thereof in writing to the in emnifying party together
with a statement of such information respecting any of the foregoing as it shall
then have an a Claim for in emnity. The in emnifying party shall not be obligate
to in emnify the in emnifie party with respect to any Claim with respect to
which the in emnifie party xxxxx to notify the in emnifying party thereof in
accor ance with the provisions of this Agreement to the extent to which the lack
of such notice can be reasonably shown to have increase the amount of the Claim.
11.05 - Defense of Claim.
The in emnifying party is entitle at its cost an expense to contest an efen by
all appropriate legal procee ings any Claim with respect to which it is calle
upon to in emnify the in emnifie party un er the provisions of this Agreement;
provi e , however, that notice of the intention so to contest shall be elivere
by the in emnifying party to the in emnifie party within a reasonable time in
light of the circumstances then an there existing. Any such contest may be con
ucte in the name an on behalf of the in emnifying party or the in emnifie party
as may be appropriate. Such contest shall be con ucte by attorneys employe by
the in emnifying party, but the in emnifie party shall have the right to
participate in such procee ings an to be represente by attorneys of its own
choosing at its cost an expense. If the in emnifie party joins in any such
contest, the in emnifying party shall have full authority to etermine all action
to be taken with respect thereto. If after such opportunity, the in emnifying
party oes not elect to contest any such Claim the in emnifying party shall be
boun by the result obtaine with respect thereto by the in emnifie party. At any
time after the commencement of efense of any Claim, the in emnifying party may
request the in emnifie party to agree in writing to the aban onment of such
contest or to the payment or compromise by the in emnifying party of the asserte
Claim, whereupon such action shall be taken unless the in emnifie party so
etermines that the contest shoul be continue , an so notifies the in emnifying
party in writing within fifteen (15) ays of such request from the in emnifying
party. In the event that the in emnifie party etermines that the contest shoul
be continue , the in emnifying party shall be liable hereun er only to the
extent of the lesser of (i) the amount which the other party to the conteste
Claim ha agree to accept in payment or compromise as of the time the in
emnifying party ma e its request therefor to the in emnifie party or (ii) such
amount for which the in emnifying party may be liable with respect to such Claim
by reason of the provisions hereof.
11.06 - Cooperation.
If requeste by the in emnifying party, the in emnifie party agrees to cooperate
with the in emnifying party an its counsel in contesting any Claim which the in
emnifying party elects to contest or, if appropriate, in making any counterclaim
against the person asserting the Claim, or any cross-complaint against any
person, but the in emnifying party will reimburse the in emnifie party for any
expenses incurre by it in so cooperating. The in emnifie party agrees to affor
the in emnifying party an its counsel the opportunity to be present at, an to
participate in, conferences with all persons, inclu ing governmental
authorities, asserting any Claim against the in emnifie party or conferences
with representatives of or counsel for such persons.
11.07 - Payment .
The in emnifying party shall pay to the in emnifie party in cash the amount to
which the in emnifie party may become entitle by reason of the provisions of
this Agreement, such payment to be ma e within five (5) ays after any such
amount is finally etermine either by mutual agreement of the parties hereto or
pursuant to the final unappealable ju gment of a court of competent juris
iction. Any appropriate costs of efense, expert fees, an other costs shall be
pai on a monthly basis.
11.08 - Notices.
Any notice, request, eman , instruction or other ocument to be given hereun er
by either party to the other shall be in writing an elivere as provi e herein.
ARTICLE XII
GENERAL
12.01 - Claims.
Buyer shall be entitle to the rights an benefits of all claims Sellers have
against thir parties with respect to the Properties arising out of events
occurring prior an subsequent to the Effective Time inclu ing, without
limitation, all rights an benefits un er the Gas Contracts. Sellers shall
cooperate with Buyer in the prosecution of such claims, but Buyer shall bear all
expenses relate to the prosecution of such claims.
12.02 - Expenses.
All fees, costs an expenses incurre by Buyer or Sellers in negotiating this
Agreement or in consummating the transactions contemplate by this Agreement
shall be pai by the party incurring the same inclu ing, without limitation,
legal an accounting fees, costs an expenses.
12.03 - Notices.
All communications require or permitte un er this Agreement shall be in writing,
an any communications hereun er shall be eeme to have been uly ma e if elivere
by (i) han , (ii) overnight elivery service, (iii) telecopy, or (iv) three ays
after being place in first class certifie mail, postage prepai , with return
receipt requeste to the following a resses:
All notices to Sellers shall be delivered to:
Xxxxxxxx Exploration, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx, Xxxxx & Xxxxxx, P.C.
X.X. Xxx 00000
Xxxxxxxx, XX 00000-0000
All notices to Buyer shall be delivered to:
Odessa Exploration, Incorporated
191 Professional Center
0000 Xxxxxxx 000, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: . Xxxx Xxxxxxx
With a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxxxx, Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxxxx
Xxxxx 000, Xxx Xxxxxx
Xxxxxxx, XX 00000-0000
12.04 - Amendments.
This Agreement may not be amen e nor any rights hereun er waive except by an
instrument in writing signe by the party to, be charge with such amen ment or
waiver an elivere by such party to the party claiming the benefit of such amen
ment or waiver.
12.05 - Hearings.
The hearings of the articles an sections of this Agreement are for gui ance an
convenience of reference only an shall not limit or otherwise affect any of the
terms or provisions of this Agreement.
12.06 - Counterparts.
This Agreement may be execute by Buyer an Sellers in any number of counterparts,
each of which shall be eeme an original instrument, but all of which together
shall constitute but one an the same instrument.
12.07 - References.
References ma e in this Agreement, inclu ing use of a pronoun, shall be eeme to
inclu e where applicable, masculine, feminine, singular or plural, in ivi uals,
partnerships or corporations. As use in his Agreement, person shall mean any
natural person, corporation, partnership, trust, estate or other entity. ul
12.08 - Governing Law .
This Agreement an the transactions contemplate hereby shall be construe in accor
ance with, an governe by, the laws of the State of Texas.
12.09 - Entire Agreement.
This Agreement (inclu ing the Exhibits hereto) constitutes the enire un erstan
ing among the parties with respect to the subject matter hereof, superse ing
negotiations, prior iscussions an prior agreements an un erstan ings relating to
such subject matter.
12.10 - Parties in Interest .
This Agreement shall be bin ing upon an shall inure to the benefit of the
parties hereto an , except as otherwise prohibite , their respective successors
an assigns; an except as otherwise state herein, nothing containe in this
Agreement, or implie herefrom, inten e to confer upon any other person or entity
any benefits, rights or reme ies.
12.11 - Assignments.
Except as otherwise provi e herein neither Buyer nor Sellers may assign their
respective rights without the consent of the other.
12.12 - Public Announcements.
The parties hereto agree that prior to making any public announcement or
statement with respect to the transactions contemplate by this Agreement, the
party esiring to make such public announcement or statement shall consult with
the other party hereto an exercise their best efforts to agree upon the text of
a joint public announcement or statement to be ma e. ul 12.13 - Notices After
Closing. Buyer an Sellers hereby agree that each party shall notify the other of
its receipt, after the Closing ate, of any instrument, notification or other
ocument affecting the Properties while owe by such other party.
12.14 - Severability .
If a court of competent juris iction etermines that any clause or provision of
this agreement is voi , illegal or unenforceable, the other clauses an
provisions of the Agreement shall remain in full force an effect an the clauses
an provisions which are etermine to be voi , illegal or unenforceable shall be
limite so that they shall remain in effect to the extent permissible by law.
12.15 - Sellers' Section 1031.
Notwithstan ing any other provision of this Agreement to the contrary, Sellers
have a vise Buyer that Sellers may elect to have the transaction contemplate
hereby structure so as to comply with the requirements of Section 1031 of the
Unite States Internal Revenue Co e entitling Sellers to obtain like-kin income
tax treatment with respect to the sale of the Property. Buyer agrees to
cooperate with Sellers if Sellers make such an election provi e that in no event
shall Buyer incur any a itional liability or expense of any kin whatsoever as a
consequence of Sellers electing to treat this transaction as part of a like-kin
exchange an Buyer '92s obligations are complete within sixty (60) ays following
the Closing ate. A itionally, Buyer shall have no responsibility or liability
whatsoever for Sellers actually obtaining any particular tax treatment as a
result of the transaction contemplate by this Agreement whether or not Seller
seeks to obtain like-kin exchange treatment.
Instead of requesting Buyer's participation in an exchange, Sellers shall have
the right to use a qualifie interme iary party to assist Sellers in effecting
the exchange, an Sellers may assign Sellers's rights un er this Agreement to
that interme iary to effect the exchange. However, that assignment shall not
relieve Sellers of Sellers's obligation to cause the property to be sol pursuant
to this Contract to be transferre to Buyer.
IN WITNESS WHEREOF the parties have execute or cause the Agreement to be
executed as of the ay an year first above written.
SELLERS: XXXXXXX CORPORATION, INC.
By:_________________________________
Xxx X. Xxxxxxxx, President
__________________________________
X.X. Xxxxxxxxx
__________________________________
Xxx X. Xxxxxxxx
__________________________________
Xxxxx X. Xxxxxx
__________________________________
Xxxx Xx Xxxxxx
__________________________________
Xxxxx X. Xxxxx
__________________________________
H. Xxxxxxx Xxxx
__________________________________
Xxxxx X. Xxxxx, Trustee of
the Xxxxxx Trust 1976
__________________________________
Xxxxx Xxx Xxxxxx
__________________________________
Josh Xxxx Xxxxxx
__________________________________
Xxxxx X. Xxxxxx
XXXXXXXX
EXPLORATION, INC.
By:__________________________________
Xxxxx X. Xxxxxxxx,
President
__________________________________
Xxxxxxx X. Xxxxxxx
BUYER:
ODESSA EXPLORATION, INCORPORATED
By:__________________________________
Xxxx Xxxxxxx,
President
ASSIGNMENT AND XXXX OF SALE
STATE OF _____________
KNOW ALL MEN BY THESE
PRESENTS:
COUNTY OF ____________
EXECUTED this ______ Day of
_______________, 1998, but EFFECTIVE as of the
Effective Date.
WITNESSES: ASSIGNOR:
______________________________
______________________________
WITNESSES: ASSIGNEE:
_____________________________
STATE OF TEXAS
COUNTY OF ______________
This instrument was acknowledged before me by
__________________________, this
______ day of May, 1998.
_______________________________
Notary Public in and for
State of Texas
STATE OF TEXAS
COUNTY OF ______________
