PURCHASE AND SALE AGREEMENT
Exhibit
10.17
Seller:
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XXXXXXX XXXXXX, LLC and Xxx Xxxxxx, Individually | |
Seller’s Address:
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X.X. Xxx 00000 Xxxxx, Xxxxxxxx 00000 |
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Buyer:
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XXXXXXXXX ENERGY, INC., a Delaware Corporation | |
Buyer’s Address:
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0000 X. X. Xxxxxxxxxx, Xxxxx 0000 Xxxxxxxx Xxxx, XX 00000 |
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Date Executed:
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June 7, 2007 | |
Date Effective:
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May 1, 2007 |
Seller, named above, and Buyer, named above, enter into this Purchase and Sale Agreement
(“Agreement”), in consideration of Seller’s agreement to sell, and Buyer’s agreement to buy the
properties, pipelines and gathering/marketing systems described in this Agreement.
In consideration of the mutual covenants, conditions and considerations provided below, the
receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:
| 1. | The Property. Seller will convey to Buyer all of Seller’s interest in and to the following properties, pipelines and gathering/marketing systems (the “Properties”): |
(a) Seller’s interests in all of those Properties which interests and properties are described
and identified on Exhibit “A” to Assignment and Xxxx of Sale attached hereto as
Attachment I.
(b) All files, records and data in the actual or constructive possession of Seller
relating to the properties described including, without limitation, all title records, prospect
division order and lease files, geological, geophysical and seismic records, data and information,
production records, electric logs, core data, pressure data and decline curves and graphical
production curves and other related matters.
(c) All of Seller’s right, title and interest in and to personal property, improvements, lease
and well equipment, easements, permits, licenses, servitudes and rights-of-way (including, but not by way of limitation, all xxxxx, casing,
tubing, tanks, boilers, separators, buildings, fixtures, machinery, injection facilities, salt
water disposal facilities, compression facilities, and other equipment, processing plants,
gathering systems, pipelines, power lines, telephone and telegraph lines, roads and other
appurtenances and easements) situated upon the lands identified in Attachment I; provided, this
conveyance is subject to the terms and conditions of each easement, license, permit and servitude,
including any limitation upon the right of assignment.
2. Purchase Price. Buyer will pay to Seller at closing the amount of $3,300,000.00
(the “Purchase Price”), subject to adjustment as the parties may agree to give effect to the
Effective Date. Additionally, Buyer agrees to pay to Seller any prepayments and well costs invoiced
and paid by Seller on the Xxxxxxxxxx XX 600 40-1 well located in Section 40, Block 600, M.A. Xxxxx
Survey, A-8883, Pecos County, Texas. As of the date hereto, this amounts to approximately
$236,611.14, subject to post closing adjustment described in Section 4 below.
3. Closing. The sale and purchase of the Properties (the “Closing”) will be held on June 11,
2007, at Seller’s offices in Tulsa, Oklahoma. Buyer shall deliver to Seller the Purchase Price
provided in Section 2 above. At the Closing, Seller shall deliver or cause to be
delivered to Buyer:
| (a) | Assignment and Xxxx of Sale in the form set forth in Attachment I; | ||
| (b) | Consents to assignment for any oil & gas contracts/agreements requiring consent; | ||
| (c) | Releases of all liens burdening the Properties; | ||
| (d) | UCC-3 Termination Statements; | ||
| (e) | All other items required to be delivered hereunder or as may be requested by Buyer which are necessary or would reasonably facilitate consummation of the transactions contemplated hereby, including, but not limited to, approval from the XxxxXxxxx Energy, Inc. Board of Directors. |
4. Post Closing. Within sixty (60) days after the Closing Date, if applicable, Buyer shall
prepare and deliver to Seller a statement setting forth actual credits, charges, receipts and other
items before and after the Effective Date. At Seller’s written request, Buyer shall deliver to
Seller reasonable documentation supporting the calculations set forth on the statement.
5. Conveyance Effective Date, Proration of Production Expenses. The conveyance from
Seller will be effective as of May 1, 2007 (“Effective Date”). All revenues and
expenses attributable to production from the Properties before such date will be owned by, and the
responsibility of, the Seller. All revenues and expenses attributable to production from the
Properties after such date will be owned by, and the responsibility of, the Buyer.
6. Taxes. Seller will be responsible for all taxes relating to the Properties
for years prior to 2007. Buyer will be responsible for all taxes (exclusive of federal, state or
local income taxes) relating to the Properties for tax year 2007 and thereafter.
7. Indemnity. Buyer will indemnify and hold Seller harmless from and against any and all
liability, liens, demands, judgments, suits, and claims of any kind or character arising out of, in
connection with, the Properties, for all periods after the Effective Date. Seller will indemnify
and hold Buyer harmless from and against any and all liability, liens, demands, judgments, suits,
and claims of any kind or character arising out of, in connection with, the Properties, for all
periods before the Effective Date.
8. Representations and Warranties of Seller. Seller represents and warrants to Buyer as
follows:
8.1 Existing Burdens. To the best of Seller’s knowledge, the lease burdens and other existing
burdens on the Properties do not reduce the net revenue interest below the percentages set forth on
Exhibit A. Seller does not warrant net revenue interest, except by, through and under Seller as to
the interests specifically set forth on Exhibit A, but not otherwise.
8.2. Authority and Conflicts. Seller has full power and authority to carry on its business as
presently conducted, to enter into this Agreement, and to perform its obligations under this
Agreement. The execution and delivery of this Agreement by Seller does not, and the consummation of
the transactions contemplated by this Agreement shall not: (a) violate, conflict with, or require
the consent of any person or entity under any provision of Seller’s governing documents; (b)
conflict with, result in a breach of, constitute a default (or an event that with the lapse of time
or notice or both would constitute a default) or require any consent, authorization, or approval
under any agreement or instrument to which Seller is a party or to which any of the Properties or Seller is bound; (c) violate any
provision of or require any consent, authorization or approval under any judgment, decree,
judicial, or administrative order, award, writ, injunction, statute, rule, or regulation applicable
to Seller; or, (d) result in the creation of any lien, charge, or encumbrance on any of the
Properties.
8.3. Authorization. The execution and delivery of this Agreement has been, and the performance
of this Agreement and the transactions contemplated by
this Agreement shall be at the time
required to be performed, duly and validly authorized by all requisite action on the part of
Seller.
8.4. Enforceability. This Agreement has been duly executed and delivered on behalf
of Seller and constitutes the legal and binding obligation of Seller enforceable in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, or
moratorium statutes, equitable principles, or other similar laws affecting the rights of creditors
generally (“Equitable Limitations”). At Closing, all documents and instruments required to be
executed and delivered by Seller shall be duly executed and delivered and shall constitute legal,
valid, enforceable and binding obligations of Seller, except as enforceability may be limited by
Equitable Limitations.
8.5. Title. Seller makes no warranty of title, express, implied, statutory or
otherwise, as to the Properties, except as to claims arising by, through or under Seller, but not
otherwise.
8.6. Equipment. Seller EXPRESSLY DISCLAIMS AND NEGATES (A) ANY IMPLIED OR EXPRESS
WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF
MATERIALS, AND (D) ANY OTHER WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED.
9. Representations by Buyer. Buyer represents to Seller that the following
statements are true and correct:
9.1. Authority and Conflicts. Buyer has full power and authority to carry on its
business as presently conducted, to enter into this Agreement, and to perform its obligations under
this Agreement. The execution and delivery of this Agreement by Buyer does not, and the
consummation of the transactions contemplated by this Agreement shall not: (a) violate, conflict
with, or require the consent of any person or entity; (b) conflict with, result in a breach of, constitute a default (or an event that with the
lapse of time or notice or both would constitute a default) or require any consent, authorization,
or approval under any agreement or instrument to which Buyer is a party; or (c) violate any
provision of or require any consent, authorization or approval under any judgment, decree,
judicial, or administrative order, award, writ, injunction, statute, rule, or regulation applicable
to Buyer.
9.2. Authorization. The execution and delivery of this Agreement has been, and the
performance of this Agreement and the transactions contemplated by this Agreement shall be at the
time required to be performed, duly and validly authorized by all requisite action on the part of
Buyer.
9.3. Enforceability. This Agreement has been duly executed and delivered on behalf
of Buyer and constitutes the legal and binding obligation of Buyer enforceable in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, or
moratorium statutes, equitable principles, or other similar laws affecting the rights of creditors
generally (“Equitable Limitations”). At Closing, all documents and instruments required to be
executed and delivered by Buyer shall be duly executed and delivered and shall constitute legal,
valid, enforceable and binding obligations of Buyer, except as enforceability may be limited by
Equitable Limitations.
10. Title and Other Examination and Curative. Prior to Closing, Buyer will examine
title to the Properties at its own expense. However, Seller will make available to Buyer all of
Seller’s title opinions, certificates of title, abstracts of title, title data, records and files
relating to the Properties (including without limitation all well files and well logs) and
information relating to the Properties as soon as possible after the execution of this Agreement.
All title to the Properties must be acceptable to Buyer prior to the Closing Date.
11. Transfer, Documentary Taxes; Commission, Brokerage Fees. Buyer will pay and
bear all documentary or transfer taxes and recording fees, resulting from this transaction. No
commission or brokerage fees will be paid by Buyer in connection with this transaction and Seller
will indemnify and hold Buyer harmless from any claims of brokers or finders acting, or claiming to
have acted, on behalf of Seller.
12. Further Assurances, Intent. It is Seller’s intent to convey to Buyer all of
Seller’s interest, legal, beneficial or equitable in the Properties. In this regard, Seller agrees
to execute and deliver to Buyer all instruments, conveyances and other documents and to do such
other acts not inconsistent with this Agreement as may be necessary or advisable to carry out Seller’s
intent, including without limitation, Letters-in-lieu of transfer orders to the purchasers of
production.
13. Notices. All notices and communications require or permitted under this
Agreement shall be in writing, delivered to or sent by U.S. Mail or Express Delivery, postage
prepaid, by prepaid telegram, or by facsimile transmission addressed as follows:
| Seller: | Mr. Xxx Xxxxxx Xxxxxxx Xxxxxx, LLC X.X. Xxx 00000 Xxxxx, Xxxxxxxx 00000 (405) 398-6060-office (405) 398-6061-facsmile xxxxx@xxxxxxxxxxxx.xxx |
| Buyer: | XxxxXxxxx Energy, Inc. 0000 X. X. Xxxxxxxxxx, Xxxxx 0000 Xxxxxxxx Xxxx, XX 00000 Attention: General Counsel (405) 753-5500-office |
14. Parties in Interest. This Agreement will inure to the benefit of
and be binding upon Seller and Buyer and their respective heirs, successors and assigns only upon
execution and delivery hereof by both parties. Delivery of an executed copy of this Agreement by
facsimile transmission shall be conclusively deemed to be delivery of an original counterpart
hereof. No assignment by any party shall relieve any party of any duties or obligations under this
Agreement.
15. Complete Agreement. This Agreement constitutes the complete agreement between
the parties regarding the purchase and sale of the Properties. Where applicable, all of the terms
of this Agreement shall survive the Closing. Time is of the essence with respect to the performance
or nonperformance of the obligations or conditions contained herein.
16. Survival. The representations, covenants and indemnities contained herein shall survive
the closing of this transaction.
EXECUTED this 7th day of June, 2007.
SELLERS:
| XXXXXXX XXXXXX, LLC |
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| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Managing Partner | |||
| XXX XXXXXX |
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| By: | /s/ Xxx Xxxxxx | |||
| Xxx Xxxxxx | ||||
| BUYER XXXXXXXXX ENERGY, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx, CPL | |||
| Title: | Executive Vice President, Land | |||
EXHIBIT “A”
Attached to and made a part of that certain Purchase and Sale Agreement dated June
7, 2007, by and between XxxxXxxxx Energy, Inc., as Buyer and Xxxxxxx Xxxxxx, L.L.C. and
Xxx Xxxxxx, as Seller covering various properties and interests in Pecos County, Texas.
| Xxxxxxx | Xxxxxxx | |||||||||||
| Xxxxxx | Xxxxxx | |||||||||||
| LEASE | COUNTY | STATE | WI | NRI | ||||||||
XXXXXXXXXX 600 9-1
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PECOS | TX | 5.0000 | 4.0000 | ||||||||
XXXXXXXXXX 600 9-2
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PECOS | TX | 5.0000 | 4.0000 | ||||||||
XXXXXXXXXX 2 28-1
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PECOS | TX | 5.0000 | 4.0000 | ||||||||
XXXXXXXXXX 000 00-00
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XXXXX | XX | 10.0000 | 7.5000 | ||||||||
XXXXXXXXXX 000 00-00
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XXXXX | XX | 10.0000 | 7.5000 | ||||||||
XXXXXXXXXX 000 00-00
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XXXXX | XX | 10.0000 | 7.5000 | ||||||||
XXXXXXXXXX 000 00-00
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XXXXX | XX | 10.0000 | 7.5000 | ||||||||
XXXXXXXXXX 000 00-00
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XXXXX | XX | 10.0000 | 7.5000 | ||||||||
XXXXXXXXXX STATE “E” 2-1
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PECOS | TX | 10.0000 | 7.5000 | ||||||||
XXXXXXXXXX STATE “E” 2-2
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PECOS | TX | 10.0000 | 7.5000 | ||||||||
XXXXXXXXXX 139 36-1
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PECOS | TX | 76.0000 | 57.0000 | ||||||||
XXXXXXXXXX 136 14-1
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PECOS | TX | 84.0000 | 63.0000 | ||||||||
XXXXXXXXXX XX 600 40-1
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PECOS | TX | 10.0000 | 7.5000 | ||||||||
| Xxxxxxx | Xxxxxxx | |||||||||||
| Xxxxxx | Xxxxxx | |||||||||||
| LEASE | COUNTY | STATE | WI | NRI | ||||||||
WEST XXXXX GATHERING SYSTEM
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PECOS | TX | 5.0000 | |||||||||
XXXXXX PIPELINE
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PECOS | TX | 10.0000 | |||||||||
INTEGRA ENERGY (1)
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PECOS | TX | 2.0000 | |||||||||
BEREXCO ACREAGE, Sec. 16, 20, 22 & 24,
Blk. 139
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PECOS | TX | 261 acs | 73.5000 | ||||||||
XXXXXXX XXXXXXX, Xxx. 00, Xxx. 139
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PECOS | TX | 84.0000 | 64.0000 | ||||||||
XXXXXXX XXXXXXX, Xxx. 00, Xxx. 600
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PECOS | TX | 10.0000 | 7.6500 | ||||||||
NEG ACREAGE, Sec. 2, Blk. 600; Sec. 32,
Blk. 130
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PECOS | TX | 127.946 ac | 75.0000 | ||||||||
NEG ACREAGE, Sec. 15, Blk. 600; Xxx.
00, 00, Xxx. 130
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PECOS | TX | 97.597 ac | 75.0000 | ||||||||
| (1) | This asset is owned by Xxx Xxxxxx only. All other properties listed on this Exhibit “A” are owned by Xxxxxxx Xxxxxx, LLC only. |
It is Xxxxxxx Xxxxxx, LLC’s intent to convey to XxxxXxxxx all of Xxxxxxx Xxxxxx, LLC’s right, title
and interest in Pecos County, Texas, in and to the subject lands, regardless of the omission of any
particular well(s), leases or errors in description and interest amounts.
END OF EXHIBIT “A”
