PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is
executed this 10th day of May, 1995 by and between the parties
listed below:
XCL LAND, LTD., which is a corporation
formed under the laws of the State of
Delaware and whose mailing address is 110 Rue
Jean Lafitte, Lafayette, Louisiana, 70508,
herein represented by its duly elected
Executive Vice President, Secretary and
General Counsel David A. Melman ("Seller");
and
THE SUCCESSION OF EDWARD M. CARMOUCHE, a
succession that has opened a probate
proceeding in Calcasieu Parish, Louisiana,
under Docket No. 28141, MATILDA GRAY STREAM,
HAROLD H. STREAM, III, THE OPAL GRAY TRUST,
a trust formed under the laws of Louisiana,
which Trust Agreement is dated October 1,
1973 and recorded in the public records of
St. John the Baptist Parish, Louisiana on
June 20, 1990, in Conveyance Book 266 at
Folio 415 under Entry No. 132288, Ascension
Parish, Entry No. 280205, and St. James
Parish, Louisiana on June 14, 1990, in
Conveyance Book 305 under Entry No. 80679,
herein represented by Harold Newton and
Bruce N. Kirkpatrick, its trustees, acting
with full authority of the trust, MATILDA
GEDDINGS GRAY TRUST FOR HAROLD H. STREAM,
III, a trust formed under Louisiana law,
herein represented by Harold Newton and Bruce
N. Kirkpatrick, its trustees, MATILDA
GEDDINGS GRAY TRUST FOR WILLIAM GRAY STREAM,
a trust formed under Louisiana law, herein
represented by Harold Newton and Bruce N.
Kirkpatrick, its trustees, MATILDA GEDDINGS
GRAY TRUST FOR SANDRA GRAY STREAM, a trust
formed under Louisiana law, herein
represented by Harold Newton and Bruce N.
Kirkpatrick, its trustees, M. G. STREAM TRUST
FOR HAROLD H. STREAM, III, a trust formed
under Louisiana law, herein represented by
Harold Newton and Bruce N. Kirkpatrick, its
trustees, M. G. STREAM TRUST FOR WILLIAM GRAY
STREAM, a trust formed under Louisiana law,
herein represented by Harold Newton and Bruce
N. Kirkpatrick, its trustees, M. G. STREAM
TRUST FOR SANDRA GRAY STREAM, a trust formed
under Louisiana law, herein represented by
Harold Newton and Bruce N. Kirkpatrick, its
trustees, (The Succession of Edward M.
Carmouche, Matilda Gray Stream, Harold H.
Stream, III, The Opal Gray Trust, Matilda
Geddings Gray Trust For Harold H. Stream,
III, Matilda Geddings Gray Trust For William
Gray Stream, Matilda Geddings Gray Trust For
Sandra Gray Stream, M. G. Stream Trust For
Harold H. Stream, III, M. G. Stream Trust For
William Gray Stream, and M. G. Stream Trust
For Sandra Gray Stream shall be referred to
collectively as the "Stream Group", and
together with Seller, a "Party" or the
"Parties");
RECITALS
WHEREAS, the Stream Group desires to purchase and Seller
desires to sell the fee lands and related rights on the terms and
conditions provided in this Agreement;
NOW, THEREFORE, in mutual consideration of the covenants
agreed to herein, the Parties hereby agree as follows:
1. Sale. Subject to terms of this Agreement, the Stream
Group shall purchase and pay for in the proportions set forth in
that certain Assignment and Sale (the "Assignment") which
Assignment is attached hereto as Exhibit 1), and the Seller shall
sell all of its undivided 7/9ths interest in and to the property
described on Exhibit A to the Assignment. (The property described
on Exhibit A to the Assignment shall hereinafter been referred to
as the "Phoenix Lake Tract.") The Closing (as hereinafter
defined) on the sale of the Phoenix Lake Tract shall occur within
thirty-five days of the execution date of this Agreement (the
"Closing Date") unless extended by mutual consent of the parties.
Seller specifically reserves for itself and excepts from the sale
hereunder the immovable property described on page 3 of Exhibit A
to the Assignment under the heading "LESS AND EXCEPT" (the
"Excepted Property").
2. Consideration For Sale of Phoenix Lake Tract. The
Stream Group shall pay to Seller as consideration for the sale of
the Phoenix Lake Tract the sum of $2,275,000 (the "Purchase
Price") to be paid in immediately available funds at Closing.
The Purchase Price is based upon a price of $250.00 per acre for
a 7/9ths interest in 11,700 acres constituting the Phoenix Lake
Tract. In the event that Seller's undivided interest in and to
any portion of the Phoenix Lake Tract is other than that stated,
or in the event that the total acreage of the Phoenix Lake Tract
is more or less than 11,700 acres, the Seller and the Stream
Group agree to adjust the price accordingly, provided that the
Parties mutually agree to any and all adjustments to Seller's
undivided interest and to the total acreage of the Phoenix Lake
Tract. In the event that the Parties do not agree to any
proposed adjustments to Seller's undivided interest or to the
total acreage of the Phoenix Lake Tract, then this Agreement
shall terminate, and notwithstanding anything contained herein to
the contrary neither Party shall be liable to the other for any
damages whatsoever on account of the termination of this
Agreement.
3. Title Matters.
1. Warranty. The sale of the Phoenix Lake Tract shall be
with a covenant of special warranty by, through and under Seller
and no further, but with full substitution and subrogation in and
to all rights of warranty that Seller may have against all
previous owners or vendors except that the existence of any of
the following items shall be excluded from the warranty (the
"Permitted Exceptions"):
(a) All water bottoms, riparian rights, filled-in
channels and batture.
(b) All canals located within the Phoenix Lake Tract
and the rights, if any, of third parties to use such canals.
(c) All rights of way, easements, predial servitudes,
personal servitudes and rights of use that affect the Phoenix
Lake Tract including, without limitation, that certain Pipeline
Right-of-Way Agreement by and between Shell Western E & P, Inc.
as lessee and L. Texas Petroleum as lessor dated October 26, 1990
and that certain Pipeline Right-of-Way and Valve Site Agreement
by and between Enron Products Pipeline, Inc. as lessee and L.
Texas Petroleum as lessor dated November 30, 1990.
(d) All Hunting, Trapping, Fishing and Grazing Surface
Lease Agreements, Waterfowl and Deer Hunting Leases and Surface
Leases granted by Seller or any predecessor in title with respect
to the Phoenix Lake Tract prior to April 1, 1995 (the "Hunting
Leases") and the material contracts listed on Exhibits 16.11,
16.12 and 16.13.
(e) That certain oil, gas and mineral lease entered
into by and between Seller, as lessor, and Phoenix Lake
Corporation, as lessee, dated October 20, 1994, recorded in the
public records of Calcasieu Parish, Louisiana, in conveyance book
2444, at page 459 under entry number 2229269.
(f) The U.S.D.A. Water Bank Program Easement Contract
No. CAL-WBP #12 dated August 12, 1992.
(g) All rights or claims arising due to parties in
possession of all or part of the Phoenix Lake Tract and not shown
by the public records.
(h) Encroachments, overlaps, boundary line disputes or
the matters which would be disclosed by an accurate survey and
inspection of the Phoenix Lake Tract.
(i) The ability to gain ingress to and egress from the
Phoenix Lake Tract or any portion thereof.
Except as otherwise set forth hereinabove, the Phoenix Lake Tract
shall be sold without any warranty whatsoever.
Seller agrees to convey all of its interest in the Permitted
Exceptions and the material contracts listed on Exhibits 16.11,
16.12 and 16.13, LESS AND EXCEPT the Excepted Property, to the
Stream Group and to prorate any annual payments due to Seller for
calendar year 1995 as consideration for the exercise of rights
granted under the Permitted Exceptions beyond the Closing Date.
Notwithstanding the foregoing, Buyer shall not be entitled to any
portion of the consideration for the exercise of rights granted
under the Permitted Exceptions if such consideration was paid in
a lump sum to cover the entire period of use (in contrast, for
example, to annual rental payments).
2. Title Defects. A title defect ("Title Defect") shall
exist if any one or more of the following statements is true:
(a) Seller does not own the Phoenix Lake Tract;
(b) At Closing, the Phoenix Lake Tract is not free of
all liens, pledges, mortgages, security interests and other
burdens;
(c) There exists a condition or circumstance in
connection with the Phoenix Lake Tract that is not in material
compliance with any law, regulation, order, or judgment of or
agreement with any federal, state or local agency or court
relating to the environment or that, such law, regulation, order,
judgment or agreement requires the owner or operator of the
Phoenix Lake Tract to undertake any cleanup, remediation or other
expense with respect to any portion of the Phoenix Lake Tract (an
"Environmental Defect");
(d) The title of Seller, or the title of Seller's
predecessors, is in any instance not evidenced by instruments
filed of record in accordance with the conveyancing and recording
laws of applicable jurisdictions or is not sufficient against
competing claims of bona fide purchasers for value without notice
or other persons entitled to the protection of applicable
recording laws, or is not held by a third party whose record
title is so perfected and who recognized Seller's claim of
ownership; or
(e) The interest of Seller in any of the Phoenix Lake
Tract is subject to a preferential right to purchase that has not
been waived or a consent to assignment necessary in the Stream
Group's sole judgment to convey merchantable title that has not
been obtained;
(f) The title of Seller is not sufficient to entitle
Seller to all of its 7/9ths interest in the Phoenix Lake Tract;
(g) The Phoenix Lake Tract is subject to contracts,
agreements or commitments, other than material contracts listed
on Exhibits 16.11, 16.12 and 16.13, which have a material adverse
affect on the value of the Phoenix Lake Tract; or
(h) There exists any pending or threatened action,
suit, claim or proceeding that would affect a material portion of
the Phoenix Lake Tract.
3. Material Title Defect. A material title defect is
any Title Defect that is not a Permitted Exception (a "Material
Title Defect") (except that instruments of record not
specifically identified on one of Exhibits 16.11, 16.12 or 16.13
shall be excluded from the definition of Permitted Exceptions for
the sole purpose of defining a Material Title Defect).
4. Notice of Material Title Defect. The Stream Group
shall notify Seller in writing, as soon as reasonably practical
after the Stream Group has knowledge thereof and in any event no
later than the Closing Date, of any Material Title Defect
discovered by the Stream Group. The notice shall describe the
exact nature of any such defect. Any Material Title Defect not
raised by the Stream Group on or before the Closing Date and any
Title Defect that is not a Material Title Defect shall be deemed
to be waived by the Stream Group.
5. Remedies for Material Title Defect. Seller shall have
the right, but not the obligation, to attempt to cure through the
Closing Date any Material Title Defect to which the Stream Group
has made timely objection. With respect to any Material Title
Defect that Seller fails to cure prior to Closing, the Purchase
Price may be reduced by (a) $250 per net acre if a Material Title
Defect is a complete failure in title with respect to any portion
of the Phoenix Lake Tract or (b) an amount agreed to by the
Parties if a Material Title Defect is something other than a
complete failure in title. If the Parties are not able to agree
to the appropriate adjustment to the Purchase Price, then this
Agreement shall terminate, and notwithstanding anything contained
herein to the contrary, neither Party shall be liable to the
other for any damages whatsoever on account of the termination of
this Agreement. Notwithstanding the foregoing, the Stream Group
may, in its sole discretion, waive any Material Title Defect at
any time prior to or at Closing, in which case Seller shall be
obligated to close the transactions contemplated herein, provided
that each of the conditions to Seller's closing contained in
Section 9 have been satisfied or waived by Seller.
6. Seller agrees to furnish the Stream Group with an
Owner's Title Insurance Policy issued in the amount of the
purchase price through a title insurance company and agent
selected by the Stream Group subject only to permitted
encumbrances and the exceptions hereinafter set forth. Seller
agrees to pay for one-half of the cost, up to a maximum of
$12,500, of obtaining title insurance and examination of title,
which fees may be deducted from the sales proceeds at Closing.
The following exceptions shall be permitted in the title
policy:
(a) Ownership of all water bottoms, riparian rights,
filled-in lands and batture;
(b) Any easements, measurements variations in area or
content, boundary line disputes, overlays, walls, or other facts
which would be disclosed by an accurate survey and inspection of
the Phoenix Lake Tract;
(c) Predial servitudes, personal servitudes and rights
of use;
(d) Any inchoate liens for ad valorem taxes that have
accrued in 1995;
(e) Any hunting or trapping leases expiring within one
year of the Closing;
(f) Any lien, or right to lien, for services, labor or
materials furnished, imposed by law and not shown on the public
records;
(g) Any rights, easements or claims of parties in
possession not shown by the public records;
(h) The ownership of any canals located within the
Phoenix Lake Tract and the rights, if any, of third parties to
use such canals; and
(i) Any claim or attack on title brought in connection
with a federal bankruptcy proceeding or any similar law
insolvency or creditor's rights proceeding based on the ground
that the transfer of any part of the Phoenix Lake Tract to the
Stream Group was a fraudulent conveyance.
4. Representations of Seller. As a principal cause and
material inducement to the Stream Group's execution of this
Agreement and to the Stream Group's consummation of the
transactions contemplated hereby, and with the acknowledgment by
Seller of the Stream Group's reliance hereon, Seller represents
to the Stream Group that as of the date hereof and as of the
Closing Date:
1. Existence. Seller is a corporation duly organized
and validly existing under the laws of the State of Delaware.
2. Power. Seller has the requisite power to enter into
and perform this Agreement and the transactions contemplated
hereby. The execution, delivery and performance of this
Agreement by Seller, and the transactions contemplated hereby,
will not violate (i) any provision of the bylaws or articles of
incorporation of Seller, (ii) any material agreement or
instrument to which Seller is a party or by which Seller is
bound, (iii) any judgment, order, ruling, or decree applicable to
Seller as a party in interest, or (iv) any law, rule or
regulation applicable to Seller.
3. Authorization. The execution, delivery and
performance of this Agreement and the transactions contemplated
hereby will be duly and validly authorized by all requisite
action on the part of Seller at Closing. This Agreement has been
duly executed and delivered on behalf of Seller, and at the
Closing all documents and instruments required hereunder to be
executed and delivered by Seller shall have been duly executed
and delivered. This Agreement does, and such documents and
instruments shall, constitute legal, valid and binding
obligations of Seller enforceable in accordance with their terms,
subject, however, to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in
effect relating to the rights and remedies of creditors.
4. Material Contracts. Each material contract,
agreement or commitment to which the Phoenix Lake Tract is
subject is listed on Exhibits 16.11, 16.12 and 16.13 attached to
this Agreement. Seller represents that it is in full compliance
with each material contract and with all permitted encumbrances
to which it is a party, that such contracts are not in default,
and Seller has not collected the consideration owed under any
such material contract in advance of the due date.
5. Environmental Disclosures. To the best of Seller's
knowledge, no Environmental Defects exist on the Phoenix Lake
Tract.
6. No Bankruptcy. There are no bankruptcy,
reorganization or rearrangement proceedings pending, being
contemplated by or to the knowledge of Seller threatened against
Seller, and no condition exists which would constitute or be
deemed to be an act of bankruptcy or insolvency on the part of
Seller.
7. Complete Data. All of the written data furnished by
Seller to the Stream Group in conjunction with the Stream Group's
evaluation of the Phoenix Lake Tract was complete to the best of
Seller's knowledge, and information furnished with respect to the
Phoenix Lake Tract was not materially false to the best of
Seller's opinion, and if any changes have taken place from the
date furnished to the Closing Date, updated information will be
provided to the Stream Group.
8. No Employment Liability. The Stream Group will have
no liability for the employment of any employee of Seller, and
the Stream Group will have no liability for any of Seller's
employee benefit plans, pension plans, thrift or investment
plans, profit sharing or savings plans (including any unfunded
liability under ERISA) or for any of Seller's employment
contracts, salary or bonus obligations or any other employee
related obligations between Seller and any of its officers,
directors, employees, servants, agents or representatives.
9. No Broker's Fees. Seller has not incurred liability,
contingent or otherwise, for broker's or finder's fees related to
the transactions contemplated hereby.
10. No Additional Phoenix Lake Tract Property. No
affiliate of Seller owns any property that, if owned by Seller,
would constitute part of the Phoenix Lake Tract.
5. Representations of the Stream Group. As a principal
cause and material inducement to Seller's execution of this
Agreement and to Seller's consummation of the transactions
contemplated hereby, and with the acknowledgment by the Stream
Group of Seller's reliance hereon, the Stream Group represents
jointly, severally and in solido to Seller that as of the date
hereof and as of the Closing Date:
1. Power. Each party to the Stream Group has all
requisite power, authority, and legal right and all licenses,
permits, qualifications and other documentation necessary or
appropriate to carry on its business as presently conducted, to
enter into this Agreement, and, at Closing will have obtained all
necessary consents, approvals and authorizations, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby.
2. Authorization. The execution, delivery and
performance of this Agreement and the transactions contemplated
hereby will not conflict with or violate any provision of the
charter, articles of partnership, or other governing documents of
any party to the Stream Group and said transactions will be duly
and validly authorized by all requisite actions on the part of
the Stream Group at Closing. This Agreement has been duly
executed and delivered on behalf of the Stream Group, and at the
Closing all documents and instruments required hereunder to be
executed and delivered by the Stream Group shall have been duly
executed and delivered. This Agreement does, and such documents
and instruments shall, constitute legal, valid and binding
obligations of the Stream Group enforceable in accordance with
their terms, subject, however, to the effect of bankruptcy,
insolvency, reorganization, moratorium and similar laws from time
to time in effect relating to the rights and remedies of
creditors.
3. No Bankruptcy. There are no bankruptcy,
reorganization or rearrangement proceedings pending, being
contemplated by or to the knowledge of any member of the Stream
Group threatened against any member of the Stream Group, and no
condition exists which would constitute or be deemed to be an act
of bankruptcy or insolvency on the part of Seller.
4. No Broker's Fees. The Stream Group has not incurred
liability, contingent or otherwise, for broker's or finder's fees
related to the transactions contemplated hereby.
6. In connection with this sale, conveyance, transfer,
assignment, and delivery of the Phoenix Lake Tract to the Stream
Group, it is understood and agreed that the Stream Group shall
not assume or be obligated to pay or satisfy any mortgage
obligation, judgment, redemption right, stock claim, debt,
liability, claim, demand or obligation of Seller or any other
owner arising from any commitment, contract, act or omission
whatsoever of Seller, or for which Seller is vicariously liable,
other than the Permitted Exceptions and the material contracts,
agreements or commitments listed on Exhibits 16.11, 16.12 and
16.13, whether prior to, on, or after the Closing Date.
7. Access to Data, Property and Information.
1. The Stream Group's Access to Information. Seller
shall provide the Stream Group with complete access at all
reasonable times to all (a) land, engineering, mineral record,
lease and other files that relate to the Phoenix Lake Tract; and
(b) geological and geophysical information relating to the
Phoenix Lake Tract. In addition, Seller shall permit the Stream
Group to have physical access to the Phoenix Lake Tract according
to the terms of the Stream Management contract listed on Exhibit
16.12. Seller shall deliver to the Stream Group upon Closing,
all information in its possession with respect to the Phoenix
Lake Tract.
2. Confidentiality. The Stream Group shall cause the
information and data furnished by Seller or by Seller's
representatives to the Stream Group and its employees and
representatives in connection with this Agreement to be
maintained in strict confidence and not to be used for any
purpose other than in connection with this Agreement; provided,
however, that the foregoing obligation shall terminate on the
earlier to occur of (a) the Closing, (b) such time as the
information or data in question is disclosed to the Stream Group
by a third party that is not obligated to Seller to maintain same
in confidence, or (c) such time as the information or data in
question becomes generally available to the oil and gas industry
other than through the breach of the foregoing obligation. The
obligations of the Stream Group under this Section 7.2 shall be
in addition to, and not in lieu of, the Stream Group's
obligations under any confidentiality agreement between Seller
and the Stream Group relating to the Phoenix Lake Tract otherwise
executed by the Stream Group.
3. Seller's Continuing Access to Data. So long as the
Stream Group is the owner of that portion of the Phoenix Lake
Tract for which data may be requested, the Stream Group shall
provide Seller with complete access at all such times that are
necessary in Seller's sole opinion to all land, engineering,
mineral record, lease and other files that relate to the Phoenix
Lake Tract. Seller shall have the right to copy and reproduce
such information. The Stream Group's obligation to allow Seller
such access shall survive the Closing Date (a) with respect to
information pertaining to mineral rights or minerals underlying
the Phoenix Lake Tract, for a period the longer of 10 years or
such time as any claim or litigation relating to the Phoenix Lake
Tract of which Buyer has written notice remains unresolved or (b)
with respect to information not pertaining to mineral rights or
minerals underlying the Phoenix Lake Tract (for example, hunting
leases), for a period the longer of three years or such time as
any claim or litigation relating to the Phoenix Lake Tract of
which Buyer has written notice remains unresolved. The Stream
Group shall provide for such access by and through its assigns as
a condition of its transfer of the Phoenix Lake Tract.
4. Return of Data. The Stream Group agrees that if this
Agreement is terminated for any reason whatsoever, the Stream
Group shall, at Seller's request, promptly return to Seller all
information and data furnished to the Stream Group, its employees
and representatives in connection with this Agreement or the
Stream Group's investigation of the Phoenix Lake Tract, and the
Stream Group agrees not to retain any copies of any such
information or data.
8. Taxes.
1. Apportionment of Ad Valorem and Property Taxes. All
ad valorem taxes, real property taxes, personal property taxes,
and similar obligations ("Property Taxes") relating to the
Phoenix Lake Tract with respect to tax year 1995 shall be
apportioned as of the Closing Date between Seller and the Stream
Group. The Stream Group shall be entitled to a credit against
the Purchase Price for that portion of the Property Taxes that
are apportioned to Seller for the tax year 1995. The Stream
Group shall file or cause to be filed all required reports and
returns incident to the Property Taxes and shall pay or cause to
be paid to the taxing authorities all Property Taxes relating to
tax year 1995.
9. Seller's Obligations Pending Closing.
1. Affirmative Obligations. From and after the effective
date until the Closing, except as otherwise consented to by the
Stream Group in writing, Seller shall:
(a) Own and operate the Phoenix Lake Tract only in the
ordinary course of business, in accordance with its present
method of ownership and operation and pay all costs and expenses
associated therewith, if, as, and when due;
(b) Exercise all reasonable due diligence in
safeguarding and maintaining secure all engineering, geological
and geophysical data, reports and maps, and information in
Seller's possession relating to the Phoenix Lake Tract until
Closing and preserve all such data and information for delivery
to the Stream Group at Closing;
(c) Permit the Stream Group and its representatives to
have reasonable access according to the Stream Management
contract listed on Exhibit 16.12;
(d) Obtain all necessary waivers of preferential
rights to purchase and consents to assignment necessary to convey
the Phoenix Lake Tract to the Stream Group;
(e) Notify the Stream Group of any material change
about which Seller has knowledge or becomes aware in any matter
reflected in any of the data, production records, computer
printouts and other such data, whether similar or dissimilar,
furnished by Seller to the Stream Group in conjunction with the
Stream Group's evaluation of the Phoenix Lake Tract immediately
upon learning or becoming aware of such material change; and
(f) Discharge all liens (except liens for taxes and
assessments not yet delinquent and liens reserved in oil and gas
leases for bonuses or rentals and for compliance with the terms
of the lease), mortgages and encumbrances which are attached to
or otherwise burden any of the Phoenix Lake Tract except for
Permitted Exceptions and those specifically assumed by the Stream
Group and set forth in this Agreement.
2. Negative Obligations. From the date of this Agreement
and until the Closing, except with the written consent of the
Stream Group, Seller shall not:
(a) Enter into any agreement or arrangement granting
any right to purchase any of the Phoenix Lake Tract or requiring
the consent of any person to the transfer and assignment of any
of the Phoenix Lake Tract hereunder, except in connection with
the performance by Seller of an obligation or agreement existing
on the date hereof;
(b) Enter into any new agreements or commitments with
respect to the Phoenix Lake Tract, other than gas sales contracts
with an expiration of thirty days or less and hunting and
trapping leases expiring within one year of the Closing Date that
do not interfere with the exploration, development or production
of hydrocarbons, and will not modify or terminate any of the
agreements relating to the Phoenix Lake Tract, other than the
Stream Management contract, listed at Exhibit 16.12, and will not
encumber (except for liens arising by operation of law), sell or
otherwise dispose of any of the Phoenix Lake Tract;
(c) Incur, or agree to incur, any material contractual
obligation or liability (absolute or contingent) with respect to
the Phoenix Lake Tract, except current liabilities incurred or
obligations under agreements entered into in the ordinary course
of business or under agreements or instruments entered into prior
to the date hereof or liabilities incurred in connection with the
consummation of the transactions contemplated in this Agreement;
or
(d) Knowingly waive any right which would otherwise
accrue to the Stream Group upon the transfer of the Phoenix Lake
Tract hereunder.
10. Seller's Closing Conditions. Seller's obligation to
consummate the transactions provided for herein is subject to the
satisfaction or waiver by Seller, prior to or at the Closing, of
each of the following conditions:
1. Representations. The representations and warranties
of the Stream Group contained in Section 5 shall be true and
correct in all material respects.
2. Pending Matters. Seller shall not be restrained,
enjoined or otherwise prohibited by the order, judgment or other
decree of any court or governmental authority from consummating
any of the transactions contemplated by this Agreement.
3. Title Defects. The Stream Group shall not have
identified in a timely manner any Material Title Defect that has
not been remedied, waived by the Stream Group, or for which an
adjustment to the Purchase Price in an amount agreed to by Seller
and the Stream Group has not been made.
4. Performance. The Stream Group shall have performed in
all material respects the obligations, covenants and agreements
hereunder to be performed by it at or prior to the Closing.
5. Consents, Authorization and Approvals. The Stream
Group shall have obtained all necessary consents, authorizations
and approvals of third parties to the consummation of the
transactions contemplated by this Agreement.
6. The Stream Group's Certificate. The Stream Group
shall have delivered a certificate executed by a representative
of each party to the Stream Group, dated as of the Closing,
certifying on behalf of the party to the Stream Group that to the
best of the party's knowledge the conditions set forth in
Sections 10.1 and 10.4 have been fulfilled and are true and
correct at Closing.
7. Simultaneous Execution. Simultaneous with the
consummation of the transactions provided for herein, the
Succession of Edward M. Carmouche, Matilda Gray Stream, Harold H.
Stream, III and the Opal Gray Trust shall have consummated that
certain Assignment of Purchase Notes and that certain Loan
Participation Agreement (both of which are attached to this
Agreement as Exhibit 10.7) with XCL-Acquisitions, Inc.
8. The Stream Group's Opinion Letter. Seller shall have
received from counsel for the Stream Group an opinion of counsel
stating that, with respect to each member of the Stream Group,
other than natural persons:
(a) The individual member of the Stream Group was duly
organized and is validly existing under the appropriate laws of
the state of its organization or creation; and
(b) The individual member of the Stream Group has all
requisite power and authority under Louisiana law to carry on its
business as presently conducted, to enter into the Agreement, to
perform its obligations thereunder, to consummate the
transactions contemplated thereby, and to enter into all
documents referred to in the Agreement.
11. The Stream Group's Closing Conditions. The Stream
Group's obligation to consummate the transactions provided for
herein is subject to the satisfaction or waiver by the Stream
Group, prior to or at the Closing, of each of the following
conditions:
1. Representations. The representations of Seller
contained in Section 4 shall be true and correct in all material
respects.
2. Pending Matters. The Stream Group shall not be
restrained, enjoined or otherwise prohibited by the order,
judgment or other decree of any court or governmental authority
from consummating any of the transactions contemplated by this
Agreement.
3. Title Defects. The Stream Group shall not have
identified in a timely manner any Material Title Defect that has
not been remedied, waived by the Stream Group, or for which an
adjustment to the Purchase Price in an amount agreed to by the
Stream Group has not been made.
4. Performance. Seller shall have performed in all
material respects the obligations, covenants and agreements
hereunder to be performed by it at or prior to the Closing.
5. Consents, Authorizations and Approvals. Seller shall
have obtained all necessary consents, authorizations and
approvals of third parties to the consummation of the
transactions contemplated by the Agreement.
6. Seller's Certificate. Seller shall have delivered to
the Stream Group a certificate executed by an officer of Seller,
dated the date of Closing, certifying on behalf of Seller, that
to the best of Seller's knowledge the conditions set forth in
Sections 11.1 and 11.4 have been fulfilled and are true and
correct at Closing.
7. Simultaneous Execution. Simultaneous with the
consummation of the transactions provided for herein, the
Succession of Edward M. Carmouche, Matilda Gray Stream, Harold H.
Stream, III and the Opal Gray Trust shall have consummated that
certain Assignment of Purchase Notes and that certain Loan
Participation Agreement (both of which are attached to this
Agreement as Exhibit 10.7) with XCL-Acquisitions, Inc.
8. Seller's Opinion Letter. The Stream Group shall have
received from counsel for Seller an opinion of counsel stating
that:
(a) Seller was duly organized and is validly existing
under the corporate laws of the State of Delaware; and
(b) Seller has all requisite power and authority under
Louisiana law to carry on its business as presently conducted, to
enter into the Agreement, to perform its obligations thereunder,
to consummate the transaction as contemplated thereby, and to
enter into all documents referred to in the Agreement.
12. Seller's Disclaimer. Except as otherwise provided in
this Agreement, the Stream Group acknowledges that Seller has not
made, AND SELLER HEREBY EXPRESSLY DISCLAIMS AND NEGATES, ANY
REPRESENTATION OR WARRANTY, EXPRESSED, IMPLIED, AT COMMON LAW, BY
STATUTE, OR OTHERWISE RELATING TO (a) THE CONDITION OF THE
PHOENIX LAKE TRACT (INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR
EXPRESSED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, OR
OF ENVIRONMENTAL CONDITION), (b) ANY INFRINGEMENT BY SELLER OF
ANY PATENT OR PROPRIETARY RIGHT OF ANY THIRD PARTY, AND (c) ANY
INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED
TO THE STREAM GROUP BY OR ON BEHALF OF SELLER (INCLUDING, WITHOUT
LIMITATION, IN RESPECT OF GEOLOGICAL, GEOPHYSICAL AND SEISMIC
DATA, THE EXISTENCE OR EXTENT OF OIL, GAS OR OTHER MINERAL
RESERVES, THE RECOVERABILITY OF OR THE COST OF RECOVERING ANY
SUCH RESERVES, THE VALUE OF SUCH RESERVES, ANY PRODUCT PRICING
ASSUMPTIONS, AND THE ABILITY TO SELL OIL OR GAS PRODUCTION AFTER
CLOSING).
13. Closing.
1. Time and Place of Closing. If the conditions to
Closing have been satisfied or waived, the consummation of the
transactions contemplated hereby (the "Closing") shall be held at
the offices of Seller's attorneys, Gordon, Arata, McCollam &
Duplantis, 625 E. Kaliste Saloom Road, Suite 301, Lafayette,
Louisiana on or before the 35th day after the date of this
Agreement (unless extended in accordance with Section 1 and then
on a day to which the Closing has been extended) at 11:00 o'clock
a.m., Central Standard Time (the "Closing Date").
2. Closing Obligations. At the Closing:
(a) Seller shall execute, acknowledge and deliver to
the Stream Group the Assignment.
(b) Seller shall deliver to the Stream Group originals
of all records, as required by this Agreement, pertaining to the
Phoenix Lake Tract;
(c) Seller shall execute such other instruments and
take such other action as may be necessary to carry out its
obligations under this Agreement;
(d) The Stream Group shall pay to Seller the sum of
$2,275,000.00 in immediate available funds and in currency of the
United States of America.
14. Environmental Liabilities. The Stream Group agrees to
indemnify, defend and hold Seller harmless from and against any
and all claims, liabilities, losses, costs and expenses arising
from or related to any Environmental Defect that comes into
existence on or after the Closing Date and during the time that
the Stream Group owns an interest in the Phoenix Lake Tract,
where the Environmental Defect is found. Seller agrees to
indemnify, defend and hold the Stream Group harmless from and
against any and all claims, liabilities, losses, costs and
expenses arising from or related to any Environmental Defect that
came into existence prior to the Closing Date and during the
period of time that Seller owned the Phoenix Lake Tract. The
indemnities provided for in this Section 14 shall expire five (5)
years from the date of the Closing unless the indemnified party
has provided the indemnifying party with written notice of the
specific claim asserted to be covered by this indemnity prior
thereto. For purposes of this Agreement, an Environmental Defect
is a condition or circumstance with respect to the Phoenix Lake
Tract or the operation thereof that is not in compliance with any
law, regulation, order or judgment of or agreement with any
federal, state or local agency or court relating to the
environment or that, under such law, regulation order, judgment
or agreement, requires the owners or operator of the Phoenix Lake
Tract to undertake cleanup, remediation or other expense.
15. Stipulation on Leasing Excepted Property. If Seller
enters into an Oil, Gas and Mineral Lease covering contiguous
acreage in the Phoenix Lake Tract that provides for a lease bonus
and delayed rentals of $300.00 per acre, a royalty interest of
not less than twenty-five percent, a primary term not greater
than three years, a 120 day continuous drilling requirement
following the primary term, and a pugh clause, then the Stream
Group shall lease to the third party under such terms and
conditions. Likewise, the same applies to Seller, mutatis
mutandis, if the Stream Group, or an affiliated entity, or a
nonaffiliated third party agrees to enter into an Oil, Gas and
Mineral Lease covering contiguous acreage in the Phoenix Lake
Tract with like provisions.
16. Miscellaneous.
1. Governing Law. This Agreement and all instruments
executed in accordance with it shall be governed by and
interpreted in accordance with the laws of the State of
Louisiana, without regard to conflict of law rules that would
direct application of the laws of another jurisdiction.
2. Entire Agreement. This Agreement, including all
exhibits attached hereto and made a part hereof, 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,
whether such supplement, amendment, alteration, modification,
waiver or termination of this Agreement is made antecedent to,
contemporaneous with or following the execution of this
Agreement.
3. 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 provision of this
Agreement.
4. Notices. Any notice provided or permitted to be given
under this Agreement shall be in writing, and may be served by
personal delivery or by depositing same in the mail, addressed to
the party to be notified, postage prepaid, and registered or
certified with a return receipt requested. Notice deposited in
the mail in the manner hereinabove described shall be deemed to
have been given and received on the date of the delivery as shown
on the return receipt. Notice served in any other manner shall
be deemed to have been given and received only if and when
actually received by the addressee. For purposes of notice, the
addresses of the parties shall be as follows:
Seller's Mailing Address:
XCL LAND, LTD.
110 Rue Jean Lafitte
Lafayette, Louisiana 70508
Attention: Mr. David A. Melman
The Stream Group's Mailing Addresses:
SUCCESSION OF EDWARD M. CARMOUCHE
Post Office Box 2001
Lake Charles, Louisiana 70602
MATILDA GRAY STREAM
c/o Bruce N. Kirkpatrick
Post Office Box 40
Lake Charles, Louisiana 70602
HAROLD H. STREAM, III
Post Office Box 40
Lake Charles, Louisiana 70602
THE OPAL GRAY TRUST
MATILDA GEDDINGS GRAY TRUST FOR HAROLD H. STREAM, III
MATILDA GEDDINGS GRAY TRUST FOR WILLIAM GRAY STREAM
MATILDA GEDDINGS GRAY TRUST FOR SANDRA GRAY STREAM
M. G. STREAM TRUST FOR HAROLD H. STREAM, III
M. G. STREAM TRUST FOR WILLIAM GRAY STREAM
M. G. STREAM TRUST FOR SANDRA GRAY STREAM
c/o Bruce N. Kirkpatrick
Post Office Box 40
Lake Charles, Louisiana 70602
Each Party shall have the right, upon giving ten (10) days prior
notice to the other Parties in the manner hereinabove provided,
to change its address for purposes of notice.
5. Expenses. Except as otherwise provided herein, each
Party shall be solely responsible for all expenses incurred by it
in connection with this transaction (including, without
limitation, fees and expenses of its own counsel and
accountants).
6. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced
under any rule of law, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a materially adverse
manner with respect to either Party.
7. 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.
8. Attorneys' Fees. If suit or action is filed by any
Party to enforce this Agreement, the prevailing Party shall be
entitled to recover reasonable attorneys' fees incurred in
investigation or related matters and in preparation for and
prosecution or defense of such suit or action as fixed by the
trial court, and, if any appeal is taken from the decision of the
trial court, reasonable attorneys' fees as fixed by the appellate
court or, if appropriate, by the trial court.
9. Further Assurances. After the execution of the
Agreement, the Parties will execute, acknowledge, and deliver to
each other such further instruments, and take such other action,
as may be reasonably requested in order to more effectively
assure to the Parties all of the respective properties, rights,
titles, interests, estates, remedies, powers, and privileges
intended to be assigned and delivered in connection with the
transactions contemplated hereby.
10. References to Currency. All references to the payment
of money made in this Agreement are meant to be references to
currency of the United States of America. All sums due pursuant
to this Agreement are due and payable in currency of the United
States of America
11. Mineral Leases. To the extent of the interest
conveyed to the Stream Group in and to the oil, gas and other
minerals, the Stream Group hereby agrees to assume at Closing all
liabilities of Seller under and to honor all terms and conditions
of the mineral leases listed on Exhibit 16.11.
12. Stream Management Contract. At Closing the Stream
Group shall cause the Stream Management contract listed on
Exhibit 16.12 to be cancelled with Seller responsible for the
monthly retainer fee only through the day of the Closing.
13. Other Material Contracts. The Stream Group hereby
agrees to assume at Closing all liabilities of Seller under and
to honor all terms and conditions of the contracts listed on
Exhibit 16.13.
14. Survival of Representations. Seller and the Stream
Group acknowledge that the representations made by Seller and the
Stream Group in Sections 4 and 5 hereof respectively shall
survive the Closing Date for a period of five years only and
shall not be deemed to be merged, extinguished or extended by any
document, conveyance or other agreement.
In witness whereof, the Parties have executed this Agreement
as of the day and year first set forth above.
SELLER:
XCL LAND, LTD.
/s/ David A. Melman
By:___________________________________________
David A. Melman
Executive Vice President,
Secretary and General
Counsel
THE STREAM GROUP:
THE SUCCESSION OF EDWARD M.
CARMOUCHE
/s/ Virginia M. Carmouche
By:________________________________________
Virginia M. Carmouche
Its Executrix
/s/ Matilda Gray Stream
__________________________________________
MATILDA GRAY STREAM
/s/ Harold H. Stream, III
___________________________________________
HAROLD H. STREAM, III
THE OPAL GRAY TRUST
/s/ Harold Newton
By:________________________________________
HAROLD NEWTON
Its Trustee
/s/ Bruce N. Kirkpatrick
By:________________________________________
BRUCE N. KIRKPATRICK
Its Trustee
MATILDA GEDDINGS GRAY TRUST FOR
HAROLD H. STREAM, III
/s/ Harold Newton
By:________________________________________
HAROLD NEWTON
Its Trustee
/s/ Bruce N. Kirkpatrick
By:________________________________________
BRUCE N. KIRKPATRICK
Its Trustee
MATILDA GEDDINGS GRAY TRUST FOR
WILLIAM GRAY STREAM
/s/ Harold Newton
By:________________________________________
HAROLD NEWTON
Its Trustee
/s/ Bruce N. Kirpatrick
By:________________________________________
BRUCE N. KIRKPATRICK
Its Trustee
MATILDA GEDDINGS GRAY TRUST FOR
SANDRA GRAY STREAM
/s/ Harold Newton
By:________________________________________
HAROLD NEWTON
Its Trustee
/s/ Bruce N. Kirkpatrick
By:________________________________________
BRUCE N. KIRKPATRICK
Its Trustee
M. G. STREAM TRUST FOR
HAROLD H. STREAM, III
/s/ Harold Newton
By:________________________________________
HAROLD NEWTON
Its Trustee
/s/ Bruce N. Kirkpatrick
By:________________________________________
BRUCE N. KIRKPATRICK
Its Trustee
M. G. STREAM TRUST FOR
WILLIAM GRAY STREAM
/s/ Harold Newton
By:________________________________________
HAROLD NEWTON
Its Trustee
/s/ Bruce N. Kirkpatrick
By:________________________________________
BRUCE N. KIRKPATRICK
Its Trustee
M. G. STREAM TRUST FOR SANDRA
GRAY STREAM
/s/ Harold Newton
By:________________________________________
HAROLD NEWTON
Its Trustee
/s/ Bruce N. Kirpatrick
By:________________________________________
BRUCE N. KIRKPATRICK
Its Trustee