EXHIBIT 10.20
PURCHASE AND SALE AGREEMENT
WITNESSETH THIS PURCHASE AND SALE AGREEMENT, made as of this __ day of
August, 2000 ("Agreement"), between EEX Operating, L.P., by and through EEX
Corporation, a Texas corporation, as General Partner, and EEX E&P Company, L.P.,
by and through EEX Exploration and Production Company, LLC, a Delaware limited
liability company , as General Partner ("Seller"), with a place of business at
2500 CityWest Blvd., Suite 1400, Houston, Texas 77042 and Texoil, Inc., a Nevada
corporation ("Purchaser"), with a place of business at 110 Cypress Station
Drive, Suite 220, Houston, Texas 77090.
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, on the terms and conditions set forth in this Agreement,
certain interests and operating rights in certain oil and gas lease(s),
agreement(s), contract(s), real property, personal property, and equipment; and
WHEREAS, at Purchaser's request or otherwise, and in the interest of full
disclosure without any representation as to its meaning or validity, Seller may
desire to provide Purchaser and/or has heretofore provided Purchaser with
proprietary, subjective, confidential, or interpretative data, reports,
information or projections concerning the past or present production of
hydrocarbons or the quality and quantity, if any, of the hydrocarbon reserves
and the environmental condition of the interests defined in Article 2
(collectively, referred to as "Proprietary Data"); and
WHEREAS, Seller disclaims all responsibility for the accuracy or
completeness of the Proprietary Data; and
WHEREAS, Purchaser specifically acknowledges and agrees that the
Proprietary Data is proprietary, subjective, confidential and interpretative;
that Purchaser will not and/or has not heretofore relied on the Proprietary Data
for any purpose whatsoever, including but not limited to the calculation of its
own projections concerning the quality and quantity, if any, of hydrocarbon
reserves contained in the Interests or its decision to purchase the Interests
AND THAT PURCHASER SHALL NOT USE THE PROPRIETARY DATA AS THE BASIS OF ANY CLAIM,
DEMAND, LIABILITY OR CAUSE OF ACTION FOR MISREPRESENTATION, BREACH OF WARRANTY,
BREACH OF CONTRACT OR OTHERWISE.
NOW, THEREFORE, for good and valuable consideration and for the mutual
covenants herein contained, Seller and Purchaser agree as follows:
ARTICLE 1. EFFECTIVE TIME
The ("Effective Time") of the sale and purchase provided for in this
Agreement shall be
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EXHIBIT 10.20
July 1, 2000, as of 7:00 a.m. local time.
ARTICLE 2. PURCHASE AND SALE
2.01 THE INTERESTS: Subject to the terms, conditions, reservations, and
exceptions specified in this Agreement, including Seller's receipt of the
requisite management approval as specified below, Seller shall sell and
Purchaser shall purchase as of the Effective Time all of Seller's right, title
and interest in and to the following assets described in Subsections 2.01(a)
through 2.01(e) (collectively called the "INTERESTS"):
(a) The oil, gas and other mineral leasehold interests described in
Exhibit "A", attached hereto and made a part hereof, insofar as such cover
and affect the lands and depths described in Exhibit "A" (hereinafter
called the "REAL PROPERTY"), together with Seller's interest in any
pooled, communitized, or unitized acreage derived by virtue of Seller's
ownership of the Real Property;
(b) The wells, equipment and facilities located on the Real Property and
used directly and exclusively in the operation of the Real Property
(collectively called the "EQUIPMENT"), including, but not limited to,
pumps, platforms, well equipment (surface and subsurface), saltwater
disposal wells, water wells, lines and facilities, sulfur recovery
facilities, compressors, compressor stations, dehydration facilities,
treating facilities, pipeline gathering lines, pipelines, flow lines, and
transportation lines (to the extent they are not owned or operated by any
affiliate of Seller), valves, meters, separators, tanks, tank batteries
and other fixtures;
(c) Oil, condensate, natural gas, and natural gas liquids produced after
the Effective Time, including "line fill" and inventory below the pipeline
connection in tanks, attributable to the Interests;
(d) To the extent transferable, all contracts and agreements concerning
the Interests, including, but not limited to, unit agreements, pooling
agreements, areas of mutual interest, farmout agreements, farmin
agreements, saltwater disposal agreements, water injection agreements,
line well injection agreements, road use agreements, operating agreements
and gas balancing agreements; and
(e) To the extent transferable, all surface use agreements, easements,
rights-of-way, licenses, authorizations, permits, and similar rights and
interests applicable to, or used or useful in connection with, any or all
of the Interests. However Seller expressly retains the right to use such
surface use agreements, easements, rights-of-way, licenses,
authorizations, permits and similar rights and interests in the event and
to the extent such rights relate to the Real Property where Seller or any
of its affiliates retains any rights or interests;
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EXHIBIT 10.20
2.02 EXCLUDED ASSETS: The following are expressly excluded from the Agreement:
(a) All mineral fee, overriding royalty and royalty interests in, on and
under the Real Property, unless expressly described in Exhibit "A";
(b) Tools, vehicles or other rolling stock, boats, aircraft, communication
equipment, leased equipment, office equipment, computer equipment and
software;
(c) Storage or warehouse agreements, supplier contracts, service
contracts, insurance contracts and construction agreements; and
(d) All pipelines, equipment and rights-of-way owned and operated by any
affiliate of Seller.
2.03 RESERVATION OF RIGHTS: In the event Seller reserves any interests,
including the deep rights in any Interests conveyed pursuant to this Agreement,
Seller shall also reserve concurrent interests in any and all applicable
easements, right-of-way, contracts or other rights relating to the reserved
interests.
2.04 MANAGEMENT/BOARD APPROVAL: THE PARTIES UNDERSTAND AND AGREE THAT THIS
AGREEMENT REQUIRES THE APPROVAL OF SEVERAL MEMBERS OF SELLER'S BOARD OF
DIRECTORS OR EXECUTIVE COMMITTEE AND PURCHASER'S BOARD OF DIRECTORS. IF ANY
MEMBER OF SUCH BOARD OF DIRECTORS OR EXECUTIVE COMMITTEE FAILS TO APPROVE THIS
AGREEMENT, SELLER SHALL HAVE NO OBLIGATION TO SUBMIT THIS AGREEMENT TO ANY OTHER
MEMBER OF ITS MANAGEMENT, ITS BOARD OF DIRECTORS OR EXECUTIVE COMMITTEE.
SELLER'S MANAGEMENT DECISION OR ITS BOARD OF DIRECTORS' OR EXECUTIVE COMMITTEE'S
DECISION WHETHER OR NOT TO APPROVE THIS AGREEMENT SHALL BE IN THE SOLE AND
ABSOLUTE DISCRETION OF THE APPLICABLE MANAGER, BOARD OF DIRECTORS OR EXECUTIVE
COMMITTEE. IF PURCHASER'S BOARD OF DIRECTORS FAILS TO APPROVE THIS AGREEMENT,
THIS AGREEMENT SHALL TERMINATE AND PURCHASER SHALL BE REFUNDED ITS PERFORMANCE
DEPOSIT.
2.05 EXCLUDED DATA AND INTERPRETATIONS: ANY AND ALL GEOPHYSICAL, SEISMIC AND
OTHER TECHNICAL DATA AND INTERPRETATIONS THEREOF AND ANY CONFIDENTIAL OR
PROPRIETARY DATA SHALL BE EXCLUDED FROM THIS PURCHASE AND SALE TRANSACTION IF
AND ONLY IF SELLER IS PROHIBITED FROM TRANSFERRING SAME PURSUANT TO THIRD PARTY
AGREEMENTS. SELLER AGREES TO GRANT PURCHASER A LICENSE ON ITS PROPRIETARY DATA
INCLUDING THE RIGHT TO TRANSFER TO THIRD PARTIES (IF NOT PROSCRIBED BY PRIOR
THIRD PARTY AGREEMENTS).
2.06 EXCLUSION OF PRIOR EXISTING RIGHTS OR CLAIMS: THERE IS ALSO SPECIFICALLY
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EXHIBIT 10.20
EXCEPTED, EXCLUDED AND RESERVED FROM THE TRANSACTION CONTEMPLATED HEREBY, ALL
RIGHTS AND CLAIMS ARISING, OCCURRING, OR EXISTING IN SELLER PRIOR TO THE
EFFECTIVE TIME INCLUDING, BUT NOT LIMITED TO, ANY AND ALL CONTRACT RIGHTS,
CLAIMS, PENALTIES, RECEIVABLES, REVENUES, RECOUPMENT RIGHTS, RECOVERY RIGHTS
(EXCEPTING GAS IMBALANCES), ACCOUNTING ADJUSTMENTS, MISPAYMENTS, ERRONEOUS
PAYMENTS OR OTHER CLAIMS OF ANY NATURE RELATING TO ANY TIME PERIOD PRIOR TO THE
EFFECTIVE TIME EXCEPT AS DESCRIBED IN SECTION 2.07.
2.07 EXISTING LITIGATION: As part of the consideration for Seller's willingness
to enter into this transaction, Purchaser has agreed to assume responsibility
for all costs, expenses and liabilities incurred in connection with the
litigation identified in Exhibit "D". In connection therewith, Seller has
reduced the Sale Price to account for such litigation.
ARTICLE 3. SALE PRICE
3.01 MANNER OF PAYMENT: The sale price for the Interests shall be Eleven Million
One Hundred Thirty Thousand Two Hundred Five and thirty one-hundreds DOLLARS
($11,130,205.30), hereinafter called the "SALE PRICE," and shall be paid as
follows:
(a) Upon the execution of this Agreement, Purchaser shall pay or cause
to be paid to Seller the sum of Eight Hundred Thirty-Four Thousand
Seven Hundred Sixty-Five and forty one-hundreds DOLLARS
($834,765.40), as a performance deposit, hereinafter called the
"PERFORMANCE DEPOSIT", WHICH shall be credited against the Sale
Price and held by Seller or, at Seller's option, Seller's designee
as hereinafter provided. Payment of the Performance Deposit shall be
paid by wire transfer as provided in Subsection 3.01(d) or at
Seller's option, by certified funds or cashiers check.
(b) At the Closing (as defined in Article 4), Purchaser shall pay Seller
or Seller's designee the balance of the Sale Price, Ten Million Two
Hundred Ninety-Five Thousand Four Hundred Thirty-Nine and ninety
one-hundreds DOLLARS ($10,295,439.90), plus or minus any adjustments
as hereinafter provided in this Agreement (the "ADJUSTED SALE
PRICE").
(c) Except as provided in Article 8, Seller shall not be obligated to
segregate the Performance Deposit in a separate account, but may
commingle the Performance Deposit with other funds in Seller's
accounts and the Performance Deposit shall not accrue interest for
the benefit of Purchaser. Likewise, in the event the Performance
Deposit is refunded to Purchaser pursuant to this Agreement,
Purchaser shall not be entitled to any interest on the Performance
Deposit.
(d) The Adjusted Sale Price shall be paid to Seller by wire transfer of
immediately
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EXHIBIT 10.20
available funds to Seller's account at Chase Bank of Texas, ABA #
113000609, Account # 08805017306, unless Seller shall give notice to
Purchaser not less than two (2) business days prior to the Closing
that it prefers payment of the Adjusted Sale Price to be made by
another method or to another account or payee in which case such
payment shall be made in that manner.
(e) Purchaser shall be obligated to bring funds to the Closing over and
above those required to pay the Adjusted Sale Price to cover any
applicable sales and gross receipts taxes on the tangible personal
property.
3.02 ALLOCATION OF SALE PRICE: Purchaser shall allocate the Sale Price among the
interests and operating rights in the Interests. Said allocation shall be
incorporated in this Agreement as Exhibit "B". References herein to a "property"
or "properties" refer to the wells, units and other subdivisions of the Real
Property listed on Exhibit "B" which have an allocation of the Sale Price.
ARTICLE 4. THE CLOSING
The sale and purchase described in Article 2 shall take place at a Closing (the
"CLOSING"), at which the Purchaser shall pay or cause to be paid to Seller the
Adjusted Sale Price and any applicable closing charges and Seller shall deliver,
or cause to be delivered, the conveyancing instruments referred to in Article 11
to Purchaser. The Closing shall occur at Seller's office located at 2500
CityWest Blvd., Houston 77042 at 10:00 a.m., local time on September 22, 2000,
or at such other time and place to which the parties may agree in writing (the
"CLOSING DATE"). The parties hereto agree that Closing may be extended for up to
one month (from the original Closing Date) if Purchaser is conducting its due
diligence in good faith and requests an extension at least two (2) days prior to
the original Closing Date. If the original Closing Date is so extended, then the
extended Closing Date shall be considered as the Closing Date. If the Closing
does not occur by the Closing Date because of Seller's failure to obtain the
requisite management approval in the manner described in Article 2 above, then
Seller and Purchaser shall each have the right and option to terminate this
Agreement upon written notice to the other party. Upon such termination, the
Performance Deposit will be immediately returned to Purchaser, without interest.
ARTICLE 5. TERMINATION
24.17 PURCHASER'S BREACH OR DEFAULT: IF THE PURCHASE AND SALE OF THE INTERESTS
IS NOT COMPLETED AS CONTEMPLATED HEREIN BY REASON OF ANY BREACH OR DEFAULT BY
PURCHASER, THEN SELLER SHALL, IN CONSIDERATION OF HAVING HELD THE INTERESTS OFF
THE MARKET AND HAVING REFRAINED FROM DEALING WITH OTHERS CONCERNING THE
INTERESTS AND AS LIQUIDATED DAMAGES IN LIEU OF ALL OTHER DAMAGES (AND AS
SELLER'S SOLE REMEDY), RETAIN THE PERFORMANCE DEPOSIT. THE PARTIES HEREBY
ACKNOWLEDGE THAT THE EXTENT OF DAMAGES TO SELLER OCCASIONED BY SUCH BREACH OR
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EXHIBIT 10.20
DEFAULT BY PURCHASER WOULD BE IMPOSSIBLE OR EXTREMELY DIFFICULT TO ASCERTAIN AND
THAT THE AMOUNT OF THE PERFORMANCE DEPOSIT IS A FAIR AND REASONABLE ESTIMATE OF
SUCH DAMAGES UNDER THE CIRCUMSTANCES.
5.2 OTHER TERMINATION: IF THE PURCHASE AND SALE OF THE INTERESTS IS NOT
COMPLETED BECAUSE OF A DEFAULT OR BREACH BY SELLER OR BECAUSE SELLER OR
PURCHASER FAILED TO OBTAIN THE REQUISITE MANAGEMENT OR BOARD OF DIRECTOR'S
APPROVAL AS REQUIRED IN SECTION 2.04 ABOVE OR ANY OTHER REASON PROVIDED HEREIN
(EXCEPT SECTION 5.1), PURCHASER SHALL BE ENTITLED TO THE PROMPT RETURN OF THE
PERFORMANCE DEPOSIT WITHOUT INTEREST, THE RECOVERY OF WHICH SHALL BE PURCHASER'S
SOLE REMEDY AGAINST SELLER.
ARTICLE 6. DUE DILIGENCE AND TITLE AND CASUALTY DEFECTS
6.01 ACCESS TO SELLER'S NON-PROPRIETARY INFORMATION: Subject to Purchaser's
confidentiality obligations described in Section 24.15 below and in addition to
the Proprietary Data which Seller may provide to Purchaser as described in the
recitals above, Seller shall make available to Purchaser during normal business
hours at Seller's offices all material non-proprietary files, records, documents
and non-interpretive data in Seller's possession relating to the Interests,
including but not limited to, lease, land, title and division order files
(including any available abstracts of title, title opinions and title curative
documents), contracts, correspondence, permitting files, engineering, production
and well files and well logs. Seller shall not be obligated to perform any
additional title work and Seller shall not be obligated to make any existing
abstracts and title opinions current. NO WARRANTY OF ANY KIND IS MADE BY SELLER
AS TO THE INFORMATION SO SUPPLIED OR WITH RESPECT TO INTERESTS TO WHICH THE
INFORMATION RELATES, AND PURCHASER EXPRESSLY AGREES THAT ANY CONCLUSIONS DRAWN
THEREFROM SHALL BE THE RESULT OF ITS OWN INDEPENDENT REVIEW AND JUDGMENT.
6.02 ACCESS TO SELLER'S PROPERTY: Seller shall give Purchaser or Purchaser's
authorized representatives, at any reasonable time(s) before the Closing and
upon adequate notice to Seller, physical access to the Real Property and
Equipment included in the Interests, for the purpose of inspecting same. Such
access shall be at Purchaser's sole risk, cost and expense and Purchaser shall
indemnify, defend, save, discharge, release and hold harmless Seller from, and
pay or reimburse Seller on a current basis for, any and all losses, liabilities,
liens or encumbrances for labor or materials, claims and causes of action
arising out of or in any way connected with or related to any personal injury to
or death of any persons or damage to property occurring to or on the Interests
as a result of Purchaser's exercise of its rights under this Section 6.02,
whether latent or patent. Purchaser agrees to comply fully with the rules,
regulations and instructions issued by Seller regarding the actions of Purchaser
while upon, entering or leaving the Interests. Seller shall have the right at
all times to participate in the preparation for and conducting of any hearing or
trial related to the indemnity set forth in this Section, as well as the right
to appear on its own behalf or to retain separate counsel to represent it at any
such hearing or trial.
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EXHIBIT 10.20
6.03 TITLE DEFECT: For the purpose of this Agreement, a "TITLE DEFECT" shall
mean a material deficiency in one or more of the following respects:
(a) Seller's title at the Effective Time, as to one or more of the
Interests, is subject to an outstanding mortgage, deed of trust,
lien or encumbrance, litigation, cause of action or other adverse
claim not shown on Exhibit "D". Notwithstanding the above, unless
such mortgage, deed of trust, lien or encumbrance is released prior
to Closing, each of these matters shall be deemed a Title Defect;
(b) Seller's net revenue interest in any of the properties is less than
the net revenue interest which is set forth in Exhibit "B" for such
property, or Seller's working interest in any of the properties is
greater than the working interest shown in Exhibit "B" for such
property without a corresponding increase in the net revenue
interest for such property;
(c) Seller is in default under some material provision of a lease,
agreement or other contract affecting the Interests; or
(d) Seller's rights and interests are subject to being reduced by virtue
of the exercise by a third party of a reversionary, back-in or
similar right not reflected or provided for in any of the agreements
or other materials set forth in Exhibit "B".
6.04 NOTICE OF A TITLE DEFECT: Upon discovery of a Title Defect, Purchaser shall
immediately notify Seller in writing of the nature of the Title Defect and
furnish Seller Purchaser's basis for the assertion of such Title Defect and data
in support thereof. Seller may request an increase in the Sale Price by delivery
to Purchaser of written notice that the net revenue interest actually owned by
Seller in any of the Interests is greater than that shown on Exhibit "B". Any
Title Defect which is not disclosed to Seller within five (5) days prior to the
Closing shall conclusively be deemed waived by Purchaser for all purposes.
6.05 REMEDIES FOR TITLE DEFECTS: Upon timely delivery of notice, either by
Purchaser of a Title Defect or by Seller of an increase in net revenue interest,
Purchaser and Seller shall meet and use their best efforts to agree on the
validity of the claim and the amount of any required adjustments to the Sale
Price, provided that in no event shall any Sale Price reduction for an affected
property exceed the amount allocated to the affected property on Exhibit "B". If
Purchaser and Seller cannot agree on the amount of such a Sale Price adjustment,
said amount shall be determined in accordance with the following guidelines:
(a) If the Title Defect is based upon Purchaser's notice that Seller owns a
lesser net revenue interest, or the notice is from Seller to the effect
that Seller owns a greater net revenue interest than that shown on Exhibit
"B", then the portion of the Sale Price allocated on Exhibit "B" to the
affected property shall be reduced or increased (as the
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EXHIBIT 10.20
case may be) in the same proportion that the actual net revenue interest
bears to the net revenue interest shown on Exhibit "B" for such property.
(b) If the Title Defect is a lien, encumbrance or other charge upon a property
which is liquidated in amount, then the adjustment shall be the sum
necessary to be paid to the obligee to remove the Title Defect from the
affected property. If the Title Defect represents an obligation or burden
upon the affected property for which the economic detriment to Seller is
not liquidated but can be estimated with reasonable certainty as agreed to
by the parties, the adjustment shall be the sum necessary to compensate
Purchaser at the Closing for the adverse economic effect which the Title
Defect will have on the affected property.
(c) Subject to Subsection 6.05(e), if the Title Defect cannot be accommodated
pursuant to subsections 6.05(a) or 6.05(b) and the parties cannot
otherwise agree on the amount of such an adjustment to the Sale Price or
Seller cannot cure the Title Defect to the reasonable satisfaction of
Purchaser prior to the Closing, the property affected by the Title Defect
shall be excluded from the Interests conveyed to Purchaser at the Closing
and the Sale Price shall be reduced by the amount allocated by Purchaser
to the affected property on Exhibit "B".
(d) Purchaser may only adjust the Sale Price for Title Defects at the Closing
if the cumulative amount of such adjustments in its favor exceeds
$100,000.00. Similarly, Seller may only adjust the Sale Price by reason of
it owning a greater net revenue interest at the Closing if the cumulative
amount of such adjustments in its favor exceeds $100,000.00. In the event
the net amount of the Sale Price adjustments downward or upward pursuant
to the foregoing exceeds five (5%) percent of the Sale Price, then Seller
or Purchaser may, upon written notice to the other party, cancel this
Agreement and the same shall be of no further force and effect, save and
except that Seller shall return the Performance Deposit to Purchaser
without interest. Litigation described in Exhibit "D" attached hereto
shall not count towards the adjustments described in this subsection.
(e) If Purchaser shall receive an adjustment at the Closing on account of a
Title Defect, Seller shall have until a date that is ninety (90) days
after the Closing Date to cure the Title Defect at its cost. If by such
date, Seller can demonstrate to Purchaser's reasonable satisfaction the
Title Defect has been cured, then Seller shall be entitled to
reimbursement by Purchaser for the amount of the adjustment received by
Purchaser at the Closing as a result of the Title Defect. If an assignment
of such affected Interest was not made at Closing, Seller shall assign
such affected Interest to Purchaser at such time as Purchaser remits the
hereinabove amount to Seller. Purchaser shall pay such amount to Seller
within ten (10) business days from the date that the parties agree the
Title Defect has been cured.
24.17 CASUALTY DEFECT: If prior to the Closing any of the Interests are
substantially damaged or
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EXHIBIT 10.20
destroyed by fire or other casualty ("Casualty Defect"), Seller shall
notify Purchaser promptly after Seller learns of such event. Seller shall
have the right, but not the obligation, to cure the Casualty Defect by
repairing such damage or, in the case of personal property or fixtures,
replacing them with equivalent items no later than the Closing Date, all
to Purchaser's reasonable satisfaction. If any uncured Casualty Defects
exist at the Closing, Purchaser shall proceed to purchase the Interests
affected thereby, and the Sale Price shall be reduced by the aggregate
reduction in the value of the Interests on account of such Casualty
Defects, as determined by the mutual agreement of the parties. If the
parties fail for any reason to agree prior to the Closing on the amount of
any Sale Price adjustments on account of Casualty Defects, Purchaser shall
accept the affected Interests and the Sale Price shall be reduced by an
amount determined by a mutually acceptable independent appraiser, equal to
the value of all Casualty Defects not accounted for at the Closing.
6.07 MATERIAL CHANGE IN CONDITION: If Seller is unable to restore production
(for a period of 20 consecutive days immediately prior to Closing and subsequent
to the execution of this Agreement) from the Basal Massive reservoir in the Funk
A-1 well to a rate no less than the average daily producing rate for the last
complete month immediately preceding the re-completion of such well, then
Purchaser and Seller shall negotiate in good faith to mutually adjust the Sale
Price. If the Parties are unable to reach agreement, then Purchaser at its
option may elect to (a) not accept an assignment of such Property and (b) not
assume the related lawsuit set forth in Exhibit "D" and the Sale Price shall be
reduced by the attributable allocated value on Exhibit "B".
ARTICLE 7. THIRD PARTY RIGHTS AND CONSENTS
It is understood by Purchaser that certain of the Interests are or may be
subject to (1) preferential purchase rights, rights of first refusal and similar
option rights in third parties to purchase a part of the Interests
(collectively, "PREFERENTIAL RIGHTS") or (2) lessors' approvals or other
consents to transfer any part of the Interests (other than governmental
approvals and other consents routinely acquired after a transfer, including the
non-transferability requirement of any license, permit, right-of-way, pipeline
franchise or easement, or a requirement for renegotiation upon transfer of
ownership) (collectively, "CONSENTS TO ASSIGN"). This Agreement shall be subject
to the terms and conditions of such Preferential Rights and Consents to Assign.
Seller shall use its best efforts to notify the holders of such Preferential
Rights of the proposed transfer of the affected properties and the amount of the
Sale Price allocated to such properties. If any third party exercises a valid
Preferential Right, the affected properties shall be excluded from the Interests
and the Sale Price reduced by the amount allocated to the affected properties.
Seller shall promptly notify Purchaser of the exercise of any Preferential Right
and of the lapse of any applicable period of time within which a Preferential
Right must be exercised. Seller shall attempt to satisfy all Consent to Assign
prior to the Closing Date. If a Consent to Assign is not obtained, then the
affected properties shall be excluded from the Interests and the Sale Price
reduced by (1) the amount
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EXHIBIT 10.20
allocated to the affected properties, if the Consent to Assign prohibits the
transfer of an oil and gas lease, interest in a unit, or other property, or (ii)
in any other case, an amount mutually agreed to by Purchaser and Seller required
to replace any material part of the Interests necessary for the continued
production and sale of hydrocarbons from the Interests, or in the event the
parties cannot agree to such amount, then the affected properties shall be
excluded from the Interests and the Sale Price reduced by the amount allocated
to the affected properties.
ARTICLE 8. REPRESENTATIONS
8.01 EXCLUSIVITY OF REPRESENTATIONS: THE EXPRESS REPRESENTATIONS OF SELLER
CONTAINED IN THIS ARTICLE 8 OR OTHERWISE STATED IN THIS AGREEMENT ARE EXCLUSIVE
AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE. FURTHERMORE, THE REPRESENTATIONS CONTAINED IN SECTIONS 8.01, 8.02 AND
8.03 SHALL SURVIVE THE CLOSING, BUT ALL OTHER REPRESENTATIONS IN THIS AGREEMENT
SHALL TERMINATE AT, AND SHALL NOT SURVIVE, THE CLOSING.
8.02 MUTUAL REPRESENTATIONS: Each party represents to the other that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of its incorporation, and is
duly qualified to do business in the States in which the Interests
are located;
(b) it has authority necessary to enter into this Agreement and to
perform all its obligations hereunder;
(c) its execution, delivery and performance of this Agreement and the
transactions contemplated hereby will not: (1) violate or conflict
with any provision of its Certificate of Incorporation, By-Laws or
other governing documents; (ii) result in the breach of any term or
condition of, or constitute a default or cause the acceleration of
any obligation under, any agreement or instrument to which it is a
party or by which it is bound; or (iii) violate or conflict with any
applicable judgment, decree, order, permit, law, rule or regulation;
(d) this Agreement has been duly executed and delivered on its behalf,
and at the Closing all documents and instruments required hereunder
will have been duly executed and delivered. This Agreement, and all
such documents and instruments shall constitute legal, valid and
binding obligations enforceable in accordance with their respective
terms, except to the extent enforceability may be affected by
bankruptcy, reorganization, insolvency or similar laws affecting
creditors' rights generally; and
(e) it has been represented by legal counsel of its own selection who
has reviewed this Agreement.
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EXHIBIT 10.20
8.03 BROKERS. Neither party has incurred any obligation or liability, contingent
or otherwise, for brokers' or finders' fees in connection with this Agreement in
respect of which the other party may have any responsibility; and any such
obligation or liability that might exist shall be the sole obligation of the
party whose action gave rise thereto.
8.04 FURTHER DISTRIBUTION: Purchaser is acquiring the Interests for its own
account and not with the intent to make a distribution thereof within the
meaning of the Securities Act of 1933, as amended, and the rules and regulations
thereunder or distribution thereof in violation of any other applicable
securities laws.
8.05 SELLER'S REPRESENTATIONS: Except as expressly disclaimed in Article 9
hereof, Seller represents the following to the best of its knowledge and belief.
For the purpose of this Agreement, references to the "best of its knowledge and
belief" of Seller means the actual and current knowledge of Seller's officers
and employees, without any duty of investigation by such officers and employees.
(a) Seller owns the Interests and has full power and right to sell and
convey the same, subject to any Preferential Rights or Consents to Assign
that may exist with respect thereto;
(b) Seller has complied in all material respects with the provisions and
requirements of all orders, regulations and rules issued or promulgated by
governmental authorities having jurisdiction with respect to the Interests
operated by Seller and has filed for and obtained all governmental
certificates, permits and other authorizations necessary for Seller's
current operations of the Interests other than permits, consents and
authorizations required for the sale and transfer of the Interests to
Purchaser which shall be the responsibility of Purchaser;
(c) Seller has not defaulted or violated any agreements to which Seller is
a party or any obligation to which Seller is bound affecting or pertaining
to the Interests other than as disclosed hereunder or on any Exhibit
attached hereto;
(d) There are no suits, actions, written claims, investigations or any
legal, administrative or arbitration proceedings pending, affecting or
pertaining to the Interests, other than as disclosed hereunder or on any
Exhibit attached hereto; and
(e) The oil and gas leases included within the Interests are in full force
and effect.
ARTICLE 9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
9.01 NO WARRANTY OR REPRESENTATION BY SELLER: THE TRANSACTION CONTEMPLATED
HEREBY SHALL BE WITHOUT ANY EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY OR
REPRESENTATION AS TO THE
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EXHIBIT 10.20
CONDITION, QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM
REDHIBITORY VICES OR DEFECTS, CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OR
MERCHANTABILITY OF ANY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PURPOSE AND
WITHOUT ANY OTHER EXPRESS, IMPLIED STATUTORY OR OTHER WARRANTY OR REPRESENTATION
WHATSOEVER. PURCHASER SHALL HAVE INSPECTED OR WAIVED ITS RIGHT TO INSPECT THE
INTERESTS FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND
ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE, INCLUDING BUT NOT LIMITED
TO CONDITIONS SPECIFICALLY RELATED TO THE PRESENCE, RELEASE OR DISPOSAL OF
HAZARDOUS SUBSTANCES, AND THE CONDITION OF ANY WELL CASING, TUBING OR DOWNHOLE
EQUIPMENT. PURCHASER IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE INTERESTS,
AND PURCHASER SHALL ACCEPT ALL OF THE SAME IN THEIR "AS IS, WHERE IS" CONDITION.
THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT. IN
ADDITION, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS,
RECORDS, PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER
FURNISHED OR MADE AVAILABLE TO PURCHASER IN CONNECTION WITH THIS AGREEMENT
INCLUDING, WITHOUT LIMITATION, ANY DESCRIPTION OF THE INTERESTS, PRICING
ASSUMPTIONS, OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY)
ATTRIBUTABLE TO THE INTERESTS OR THE ABILITY OR POTENTIAL OF THE INTERESTS TO
PRODUCE HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE INTERESTS OR ANY
OTHER MATTERS CONTAINED IN THE PROPRIETARY DATA OR ANY OTHER MATERIALS FURNISHED
OR MADE AVAILABLE TO PURCHASER BY SELLER OR BY SELLER'S AGENTS OR
REPRESENTATIVES. ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS,
INFORMATION AND OTHER MATERIALS FURNISHED BY SELLER OR OTHERWISE MADE AVAILABLE
TO PURCHASER ARE PROVIDED PURCHASER AS A CONVENIENCE AND SHALL NOT CREATE OR
GIVE RISE TO ANY LIABILITY OF OR AGAINST SELLER. ANY RELIANCE ON OR USE OF THE
SAME SHALL BE AT PURCHASER'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.02 EXPRESS DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES: THE ASSIGNMENTS AND
BILLS OF SALE, LEASES, DEEDS OR OTHER CONVEYANCES TO BE DELIVERED BY SELLER AT
CLOSING SHALL EXPRESSLY SET FORTH THE DISCLAIMERS OF REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS ARTICLE 9. ALSO, ALL SUCH ASSIGNMENTS, LEASES,
DEEDS AND OTHER CONVEYANCE DOCUMENTS SHALL EXPRESSLY STATE THAT THE INTERESTS
HAVE BEEN USED FOR OIL AND GAS DRILLING AND PRODUCTION OPERATIONS, RELATED
(DISPOSAL AND OTHER) OILFIELD OPERATIONS, AND TRANSPORTATION OF
12
EXHIBIT 10.20
OIL AND GAS.
9.03 SPECIAL WARRANTY OF TITLE: Seller does hereby bind itself to warrant and
forever defend, all and singular, the Interests unto Purchaser, against every
person whomsoever lawfully claiming or to claim the same or any part thereof,
by, through or under Purchaser, but not otherwise.
ARTICLE 10. CONDITIONS
Each party's obligation to consummate the transaction provided for herein
is subject to the satisfaction or waiver by the other party of the following
conditions:
10.1 REPRESENTATIONS: The representations contained in Article 8 and Article 10
hereof shall be true and correct in all material respects on the Closing Date as
though made on and as of the Closing Date.
10.2 PERFORMANCE: Each party shall have performed in all material respects the
obligations, covenants and agreements hereunder to be performed by it at or
prior to the Closing Date.
10.3 PENDING MATTERS: Except as provided in Exhibit "D", no suit, action or
other proceeding by a third party or a governmental authority shall be pending
which seeks substantial damages, fines or other penalties from either party in
connection with the Interests, or seeks to restrain, enjoin or otherwise
prohibit the consummation of the transactions contemplated by this Agreement.
10.4 GOVERNMENTAL BONDS: Upon written request by Seller, Purchaser shall deliver
or cause to be delivered to Seller proof of bonds, in form and substance and
issued by corporate sureties satisfactory to Seller, covering the Interests
required under any laws, rules or regulations of any federal, Indian tribe,
state or local government agencies having jurisdiction over the Interests, or a
commitment by a surety company, satisfactory to Seller, to issue such bonds upon
Closing.
10.5 FINANCIAL CONDITION: No material adverse change has occurred in the
financial condition of either party.
10.6 MANAGEMENT APPROVAL: Seller and Purchaser each shall have obtained
management approval of this Agreement and the transactions contemplated hereby
as required by Section 2.04 herein and shall have notified the Purchaser and
Seller in writing that the appropriate level of management/board of director
approval has been obtained. Management approval and Board of Director's approval
of this Agreement and the transactions contemplated hereby shall have been
received by both parties no later than August 21, 2000. If only one Party has
received such approval by such date, the party securing approval may terminate
this Agreement without liability by notifying the other party in writing as
promptly as possible.
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EXHIBIT 10.20
ARTICLE 11. TRANSACTIONS ON AND AFTER CLOSING
At the Closing, the following shall occur:
11.1 ASSIGNMENT AND BILL OF SALE: Seller shall execute, acknowledge and deliver
an Assignment and Bill of Sale and other necessary conveyance instruments in a
form that is mutually acceptable to the parties in accordance with the
obligations outlined in this Agreement, covering all of the Interests to be sold
pursuant hereto.
11.2 OIL AND GAS LEASE: Any unleased mineral interests of Seller included in
this transaction shall not be conveyed to Purchaser but shall, upon and subject
to the provisions hereof, be leased on commercially reasonable terms to
Purchaser by oil and gas lease.
11.3 ADJUSTED SALE PRICE: Purchaser shall deliver to Seller or Seller's designee
the Adjusted Sale Price and any applicable closing charges.
11.4 REGULATORY FILINGS: Purchaser shall deliver to Seller evidence of filing
showing compliance with the appropriate regulatory authority dealing with
plugging of any dry or inactive well(s) included in the Interests, along with
evidence of the appropriate bond, surety letter or letter of credit in a form
acceptable to such authority.
11.5 CHANGE OF OPERATOR: Seller shall provide Purchaser with executed change of
operator forms on all wells (active or inactive) operated by Seller, as required
by the applicable state regulatory body, to effect a change of operator for the
Interests, subject to any applicable operating agreement, but only to the extent
allowed or permitted by such operating agreement.
11.6 POSSESSION OF THE INTERESTS: Seller shall (subject to the terms of
applicable operating agreements and other provisions hereof) deliver to
Purchaser exclusive possession of the Interests upon the Closing.
11.7 NOTICE OF SALE: Immediately after the Closing, Purchaser shall notify all
operators, non-operators, oil and gas purchasers, governmental agencies and
royalty owners that it has purchased the Interests.
11.8 COPIES OF RECORDS AND DOCUMENTS: Seller shall, within seven days after the
Closing, provide Purchaser, at Purchaser's expense, with the original records
and documents in Seller's possession relating to the Interests, including, but
not limited to, land and lease files, division of interest computer printouts,
contract files, well files and well logs. SELLER SHALL AT ITS OPTION, RETAIN
COPIES OF ALL FILES AND SHALL HAVE NO OBLIGATION TO FURNISH PURCHASER ANY DATA
OR INFORMATION WHICH SELLER CONSIDERS PROPRIETARY OR CONFIDENTIAL OR WHICH
SELLER CANNOT PROVIDE PURCHASER BECAUSE OF THIRD-PARTY RESTRICTIONS ON SELLER.
Notwithstanding the foregoing sentence, Seller shall provide Purchaser copies of
all proprietary geophysical data and a transferable license thereto (except
where restricted by third party agreement).
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EXHIBIT 10.20
ARTICLE 12. ALLOCATION OF PRODUCTION AND PROCEEDS
All production of oil, gas and other minerals from the Interests prior to
the Effective Time, and all proceeds from the sale of such production, shall be
the property of Seller. All such production upon and after the Effective Time,
and all proceeds from the sale thereof, shall be the property of Purchaser.
Production shall be allocated to the parties based upon the most reliable
measurement method or allocation calculation information available and mutually
acceptable to the parties. Purchaser shall pay Seller for oil in inventory above
the pipeline connection at the posted field price for oil of like grade and
gravity in the field at the Effective Time. Purchaser shall assume all rights
and/or liabilities of Seller arising from any gas imbalances affecting the
Interests as of the Effective Time and thereafter. Purchaser shall indemnify,
defend, save, discharge, release and hold Seller harmless from any claims for
gas imbalances which have accrued prior to the Effective Time. Purchaser and
Seller agree that the Sale Price shall be adjusted at the Closing to account for
gas imbalances affecting the Interests which are set forth in Exhibit "C"
hereto. Such adjustment shall be made as follows:
(a) Overproduced volumes shall be valued at $1.00 MCF.
(b) Underproduced volumes shall be valued at $1.00 MCF.
(c)The Sale Price shall be adjusted upward $0 for the underproduced volume
as indicated on Exhibit "C", being the product of multiplying such
underproduced volume by $1.00 MCF.
(d) The Sale Price shall be adjusted downward $0 for the overproduced
volume as indicated on Exhibit "C" being the product of multiplying such
overproduced volume by $1.00 MCF.
Further, as part of the final accounting provided in Article 17, Seller shall
revise the gas imbalances indicated in Exhibit "C" to reflect the actual
imbalance volumes as of the Effective Time. The difference between the gas
imbalances indicated on Exhibit "C" and the actual gas imbalances as of the
Effective Time shall be multiplied by the appropriate value per MCF as stated in
subsections (a) and (b) of this Article 12 and the aggregate adjustment amount
shall be appropriately accounted for in the final settlement.
ARTICLE 13. RESPONSIBILITY FOR PAYMENTS AND OBLIGATIONS
Seller shall be responsible for (i) all lease rentals, shut-in-royalties,
minimum royalties, payments in lieu of production, production royalties
(including royalties paid in kind), overriding royalties, production payments
and net profits payments, and (ii) all operating costs, vendor and contractor
invoices and other liquidated monetary obligations of Seller that in each case
accrued prior to the Effective Time and are attributable to the ownership,
operation, use or maintenance of or otherwise relate to the Interests. Purchaser
shall be responsible for all of the above described payments and obligations
that have accrued or may accrue on and after the Effective Time, and
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EXHIBIT 10.20
shall reimburse Seller for any such payments or obligations paid by Seller on or
after the Effective Time.
Additionally, Seller shall be responsible for the settlement of all joint
billing audits which relate to accounting periods prior to the Effective Time.
Purchaser shall be responsible for the settlement of all joint billing audits
which relate to accounting periods on and after the Effective Time. Any credits
received by Purchaser after the Effective Time attributable to expenses paid
prior to the Effective Time shall be paid to Seller by Purchaser within fifteen
(15) days of Purchaser's receipt thereof.
If Seller receives after Closing any revenues or invoices that are
attributable to periods after the Effective Time, then Seller shall deliver such
revenues with appropriate supporting detail or unpaid invoices to Purchaser
within three business days of receipt.
ARTICLE 14. TAXES AND PREPAID ITEMS
14.01 APPORTIONMENT OF AD VALOREM AND PROPERTY TAXES: All ad valorem
taxes, real property taxes, personal property taxes and similar obligations with
respect to the Interests for the tax period in which the Effective Time occurs
shall be apportioned as of the Effective Time between Seller and Purchaser. The
portion of such apportioned tax liability which is attributable to Seller shall
be credited to Purchaser's account at Closing. Purchaser shall file or cause to
be filed all required reports and returns incident to such taxes and shall pay
or cause to be paid to the taxing authorities all such taxes relating to the tax
period in which the Effective Time occurs. Purchaser shall supply Seller with
copies of the filed reports and proof of payment promptly after filing and
paying same.
14.02 PRORATION OF TAXES, ETC.: All taxes, including, but not limited to,
excise taxes, state severance taxes, ad valorem taxes, and any other local,
state, and/or federal taxes or assessments attributable to the Interests or any
part thereof prior to the Effective Time, remain Seller's responsibility and all
deductions, credits and refunds pertaining to the aforementioned taxes,
attributable to the Interests or any part thereof prior to the Effective Time
(no matter when received), belong to Seller. All such taxes attributable to the
Interests or any part thereof on and after the Effective Time are Purchaser's
responsibility, and Purchaser shall reimburse Seller for any such taxes
previously paid by Seller, and all deductions, credits, and refunds pertaining
thereto on and after the Effective Time (no matter when received) belong to
Purchaser.
14.03 APPORTIONMENT OF PREPAIDS: Unearned insurance premiums, paid utility
charges applicable to periods following the Effective Time, prepaid rentals,
prepaid joint interest stock accounts and any other prepaids or accrued
payables, if any, attributable to the Interests shall be prorated as of the
Effective Time and amounts owing from such proration shall be settled with a
final accounting, which shall be made at such time as complete records are
available.
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EXHIBIT 10.20
ARTICLE 15. OPERATIONS
Seller, as to the portion of the Interests to be conveyed which it now
operates, shall from the date of execution of this Agreement, continue to
operate the same in a good and workmanlike manner until the Closing, when such
operations shall be turned over to and become the responsibility of Purchaser,
unless an applicable unit, pooling, communitization or operating agreement
requires otherwise, in which case (unless Purchaser and Seller otherwise agree)
Seller shall continue the physical operation of such portion of the Interests
pursuant to and under the terms of such applicable agreement, until such time
after the Closing as such applicable agreement may require; provided, however,
that Seller shall have no liability as operator to Purchaser for losses or
damages sustained, or liabilities incurred, WHETHER OR NOT THE LOSSES, COSTS,
EXPENSES AND DAMAGES IN QUESTION AROSE SOLELY OR IN PART FROM THE ACTIVE,
PASSIVE, CONCURRENT, SIMPLE OR SOLE NEGLIGENCE, OR STRICT LIABILITY OR OTHER
FAULT OF SELLER OR ANY OTHER THEORY OF LIABILITY OR FAULT, WHETHER IN LAW
(WHETHER COMMON OR STATUTORY) OR EQUITY, except as may result directly from
Seller's gross negligence or willful misconduct. Any operations from and after
the Effective Time shall be conducted by Seller for and on behalf of Purchaser,
and Seller shall make appropriate charges to the Purchaser for such services as
operator of the Interests (or any portions thereof) performed by Seller from and
after the Effective Time. If any of the properties that Seller continues to
operate on behalf of the Purchaser are subject to an operating agreement, Seller
shall make appropriate charges to the Purchaser in accordance with such
operating agreement which will include overhead charges attributable to Seller's
gross working interest. Purchaser shall reimburse Seller for all reasonable and
necessary expenses incurred by Seller in such operation, or in the protection or
maintenance of the Interests. Any such charges and expenses shall be recovered
by Seller as part of the final accounting described in Article 17.
ARTICLE 16. SUBSEQUENT DRILLING OPERATIONS
After full execution of this Agreement and prior to delivery of possession
of the Interests to Purchaser under the applicable provisions of this Agreement,
Seller shall not, without Purchaser's prior written consent, propose or conduct
any operation for the drilling, testing, completing, reworking recompleting,
sidetracking, deepening, plugging back or plugging and abandoning a well with
respect to the Interests (a "DRILLING OPERATION") under the terms of any
operating agreement or other contract (except repairs or operations made
necessary by emergency conditions, after which Seller shall promptly give
Purchaser notice with full details of the work done and the costs thereof). If
any present party (other than Seller) to an operating agreement or compulsory
pooling order proposes a Drilling Operation prior to such delivery of possession
of the Interests involving an expenditure of more than $10,000.00, Seller shall
promptly notify (by facsimile or overnight delivery within 24 hours of Seller's
receipt) Purchaser of such proposal and will promptly (within the above time
frame) provide Purchaser with all information, data or other material in
Seller's possession that may be relevant to a decision whether or not to
participate in such Drilling Operation. Seller shall accept or reject
participation in the proposed Drilling Operation based upon Purchaser's election
with respect thereto given in writing by Purchaser to Seller within the period
allowed in such proposal. Failure by Purchaser to make an
17
EXHIBIT 10.20
election within such period shall be deemed an election by Purchaser not to
participate. Any election by Purchaser hereunder, regardless of whether actually
made or deemed to be made, shall not result in any adjustment in the amount
allocated to the property affected thereby; however all costs and expenses on
account of Purchaser's decision to participate in any such Drilling Operation
shall be borne by Purchaser, notwithstanding any termination of this Agreement
or anything else herein to the contrary. However, if this Agreement is
terminated and the operation results in a well producing or capable of
producing, then Seller shall promptly reimburse Purchaser for its share of the
well expenditures.
ARTICLE 17. FINAL ACCOUNTING
In the event a final settlement statement subsequent to the Closing is
necessary, Seller will include in its review, without limitation, all revenue
received along with royalties paid, and any operating expenses, taxes, and
overhead as provided for in Articles 12, 13, 14, 15 and 16 herein. Seller shall
issue the final settlement statement for the Interests conveyed within one
hundred twenty (120) days or such earlier date as is practicable under the
circumstances after the Closing. This statement will net revenues received
against royalties, operating expenses, taxes, and overhead (if applicable).
Purchaser shall respond with objections and proposed corrections within thirty
(30) days of the issuance of the final settlement statement. In the event
Purchaser does not respond to the final settlement statement by signing or
objecting within thirty (30) days of the issuance of the final settlement
statement said statement shall be deemed approved by Purchaser. After approval
by both parties, the final settlement statement for the Interests conveyed will
be summarized and a net check or invoice will be promptly sent to the Purchaser.
Purchaser agrees to promptly pay any such invoice within thirty (30) days after
receipt by Purchaser and shall not offset such amounts against any other
obligation or claim made by Purchaser against Seller or its affiliates. Seller
will accept only written inquiries regarding the final settlement statement. In
the event, Purchaser shall object to the final settlement statement, the parties
shall meet within thirty (30) days and negotiate in good faith a mutually
acceptable settlement statement. If the parties are unable to reach an
agreement, then the firm of Ernst and Young, L.L.P. or other mutually acceptable
accounting firm, shall act as an arbitrator and decide all points of
disagreement with respect to the Final Settlement Statement. The decision of the
arbitrator on all such points shall be binding upon the parties. The costs and
expenses of the arbitrator shall be borne fifty percent (50%) by Seller and
fifty percent (50%) by Purchaser.
ARTICLE 18. ADVERSE ENVIRONMENTAL CONDITIONS
18.01 OPERATED INTERESTS: Purchaser shall advise Seller of any Adverse
Environmental Condition (as defined herein) related to the Interests which are
operated by Seller and provide evidence thereof not later than fifteen (15) days
prior to the Closing. Except as provided below, Seller, after the Closing, at
its sole cost, shall remedy such Adverse Environmental Condition(s),
individually or in the aggregate, to the reasonable satisfaction of Purchaser
and Seller and in accordance with applicable Environmental Laws (as defined
herein) in effect as of the Effective Time. In the event Seller reasonably
determines in good faith that the cost of remediating Adverse Environmental
Condition(s) as to any wells, units and other subdivisions of the Real
18
EXHIBIT 10.20
Property listed on Exhibit "B" which has an allocation of the Sale Price that
exceeds the lesser of $100,000.00 or the allocated value in Exhibit "B", or that
the cost of remediating Adverse Environmental Conditions as to all affected
Interests exceeds five percent (5%) of the Sale Price, Seller may elect, by
written notice to Purchaser not later than ten (10) days prior to the Closing
not to remedy such Adverse Environmental Condition(s) under this Agreement.
If Seller declines to remediate any Adverse Environmental Condition(s),
Purchaser shall have the option to: (1) exclude the affected property and adjust
the Sale Price by the value allocated thereto in Exhibit "B", or (2) terminate
this Agreement without liability, in which event the Performance Deposit shall
be returned to Purchaser, in accordance with Article 5. If Purchaser elects to
exclude affected Interests aggregating more than five percent (5%) of the Sale
Price, then Seller shall have the option to terminate the Agreement without
liability, in which event the Performance Deposit shall be returned to Purchaser
in accordance with Article 5. As for Interests containing Adverse Environmental
Condition(s) that are conveyed to and accepted by Purchaser that Seller
undertakes to remedy, Seller shall indemnify, save, discharge, release and hold
Purchaser harmless against all penalties, fines, cleanup or remediation
liabilities, claims, demands and causes of action, resulting from the
remediation of, or the failure to, fully and completely perform the remediation
of the Adverse Environmental Condition(s) in accordance with applicable
Environmental Laws. Seller agrees that it will exercise all reasonable efforts
and diligence to complete any required environmental cleanup and remediation
within 180 days of the Closing; however, any failure to complete such efforts by
such time shall not relieve Seller of its duty to fully and completely satisfy
its obligations hereunder. Purchaser shall grant Seller and its representatives
such access to the Interests as may be necessary to satisfy its obligations
under this Article, provided such access does not interfere with Purchaser's
operations.
18.02 NON-OPERATED INTERESTS: Purchaser shall advise Seller of any Adverse
Environmental Condition(s) (as defined herein) on the Interests which are not
operated by Seller and provide evidence thereof not later than fifteen (15) days
prior to the Closing. After receipt of such notice, Seller and Purchaser shall
agree, not later than ten (10) days prior to the Closing, to adjust the Sale
Price in an amount mutually agreeable to the parties. In the event the parties
cannot agree to an adjustment amount, Purchaser shall have the option to: (1)
exclude the affected interests and adjust the Sale Price by the value allocated
thereto in Exhibit "B" or (2) terminate this Agreement, without liability, in
which event the Performance Deposit shall be returned to Purchaser, in
accordance with Article 5. If Purchaser elects to exclude affected Interests
aggregating more than five percent (5%) of the Sale Price, then Seller shall
have the option to terminate this Agreement, without liability, in which event
the Performance Deposit shall be returned to Purchaser in accordance with
Article 5.
As used herein, "ADVERSE ENVIRONMENTAL CONDITIONS" shall mean any contamination
or condition that is the result of any discharge, release, disposal, production,
storage or treatment on, in or below the Interests or migration to or from the
Interests to any other land or body of water, wherever located, prior to the
Closing Date, of any wastes, pollutants, contaminants, hazardous materials or
other materials or substances for which and to the extent that remediation is
required by any laws, rules, orders, regulations, permits or judgments in effect
as of the Effective Time
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EXHIBIT 10.20
relating to the protection of the environment ("Environmental Laws").
ARTICLE 19. INDEMNIFICATIONS
19.01 INDEMNIFICATION: As used in this Article 19 and the Sections and
Subsections hereunder, "CLAIMS" shall include claims, demands, causes of action,
liabilities, damages, fines, penalties and judgments of any kind or character,
whether matured or unmatured, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated or known or unknown, and whether or not resulting
from third party claims, and all costs and fees (including, without limitation,
interest, reasonable attorneys' fees, reasonable costs of experts, court costs
and reasonable costs of investigation, including those incurred in enforcing the
indemnification provisions contained in this Agreement) in connection therewith.
Also, as used in Subsection 19.01(d) herein, "RETAINED ENVIRONMENTAL
LIABILITIES" shall mean any contamination or condition that is the result of any
disposal by Seller of any wastes, pollutants, contaminants, hazardous materials
or other materials or substances on, in or below any properties not included in
the Interests, wherever located, prior to the Closing Date, for which and to the
extent that remediation is required by any Environmental Laws.
In addition to any other indemnification or reservation provision contained in
this Agreement:
(a) Purchaser shall (i) as of the Effective Time assume, be responsible
for and comply with all duties and obligations of Seller (except
liquidated monetary obligations of Seller that accrued prior to the
Effective Time as described in Article 13), express or implied, with
respect to the Interests, including, without limitation, those arising
under or by virtue of any lease, contract, agreement, document, permit,
applicable law, statute or rule, regulation or order of any governmental
authority (specifically including, without limitation, any governmental
request or requirement to plug, re-plug or abandon any well of whatsoever
type, status or classification, or take any clean-up, remedial or other
action with respect to the Interests) and (ii) defend, indemnify, save,
discharge, release and hold Seller harmless from and pay or reimburse
Seller on a current basis for any and all Claims in connection therewith,
except (a) to the extent any such Claim has been asserted against Seller
prior to the Closing Date, (b) as otherwise set forth in this Agreement,
(c) any Claim expressly retained by Seller pursuant to Section 18.01
and/or 18.02 of this Agreement, and (d) any brokers' or finders' fees or
commissions arising with respect to brokers or finders retained or engaged
by Seller and resulting from or relating to the transactions contemplated
in this Agreement. With respect to any Claim for cleanup or remediation of
the Interests, such Claim shall be deemed asserted against Seller at the
time the Order requiring cleanup or remediation has been issued by the
appropriate regulatory agency.
(b) Except as provided for in Section 6.02, Seller shall defend,
indemnify, save, discharge, release and hold Purchaser harmless from any
and all Claims for personal injury, death or damage to real and/or
personal property arising directly or indirectly from or incident to, the
use, occupation, operation, maintenance, condition (whether latent or
20
EXHIBIT 10.20
patent) or abandonment of any of the Interests prior to the Closing Date,
and asserted against Purchaser and/or Seller within twenty-four (24)
months of the Closing Date.
(c) Except as provided in Subsection 19.01(a) and 19.01(b), Purchaser
shall defend, indemnify, save, discharge, release and hold Seller harmless
from and pay or reimburse Seller on a current basis for any and all Claims
for personal injury, death, or damage to personal property arising
directly or indirectly from or incident to, the use, occupation,
operation, maintenance, condition (whether latent or patent) or
abandonment of any of the Interests after the Closing Date.
(d) Except as provided in Article 18 and except for Retained Environmental
Liabilities, Purchaser shall defend, indemnify, save, discharge, release
and hold Seller harmless from and pay or reimburse Seller on a current
basis for any and all Claims for damage to the environment, environmental
cleanup, remediation or compliance, or for any other relief, arising
directly or indirectly from or incident to, the use, occupation,
operation, maintenance, condition (whether latent or patent) or
abandonment of any of the Interests, including without limitation,
contamination of the property or premises with Naturally Occurring
Radioactive Materials (NORM) whether or not any such Claims result from
conditions, actions or inactions present or existing on or before the
Closing.
(e) Except as provided in Subsections 19.01(c) and 19.01(d) above, Seller
shall (i) be responsible for any and all Claims arising out of the
production or sale of hydrocarbons from the Interests (except gas
imbalances) or the proper accounting or payment to parties for their
interests therein, insofar as such Claims relate to periods of time prior
to the Effective Time and (ii) defend, indemnify, save, discharge, release
and hold Purchaser harmless from any and all such Claims. These Claims
include but are not limited to any and all valid overriding royalty,
royalty or net profit interest payments. Purchaser shall be responsible
for all Claims of these types insofar as they relate to periods of time
from and after the Effective Time and Purchaser shall defend, indemnify,
save, discharge, release and hold Seller harmless therefrom.
Any claim for indemnity under Subsections 19.01(a) through 19.01(e) above or
under any other provision of this Agreement shall be made by written notice from
the party seeking indemnification (the "INDEMNIFIED PARTY") to the party
required to provide same (the "INDEMNIFYING PARTY"), together with a written
description of any third-party Claim against the Indemnified Party, stating the
nature and basis of such Claim and, if ascertainable, the amount thereof. The
Indemnifying Party shall have a period of thirty (30) days after receipt of such
notice within which to respond thereto or, in the case of a third-party Claim
which requires a shorter time for response, then within such shorter period as
specified by the Indemnified Party in such notice (the "NOTICE PERIOD"). If the
Indemnifying Party denies liability or fails to respond to the notice within the
Notice Period, the Indemnified Party may defend or compromise the Claim as it
deems appropriate without prejudice to any of the Indemnified Party's rights
hereunder, with no further obligation to inform the Indemnifying Party of the
status of the Claim and no right of the Indemnifying Party to approve or
disapprove any actions taken in connection therewith by the
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EXHIBIT 10.20
Indemnified Party. If the Indemnifying Party accepts liability, it shall so
notify the Indemnified Party within the Notice Period and elect either (a) to
undertake the defense or compromise of such third-party Claim with counsel
selected by the Indemnifying Party and reasonably approved by the Indemnified
Party or (b) to instruct the Indemnified Party to defend or compromise such
Claim. If the Indemnifying Party undertakes the defense or compromise of such
third-party Claim, the Indemnified Party shall be entitled, at its own expense,
to participate in such defense. No compromise or settlement of any third-party
Claim shall be made without reasonable notice to the Indemnified Party unless
such compromise or settlement includes a general release of the Indemnified
Party in respect of the matter with no admission of liability on the part of the
Indemnified Party and no constraints on the future conduct of its business,
without the prior written approval of the Indemnified Party, which approval
shall not be unreasonably withheld.
19.02 EXTENSION AND APPLICATION OF INDEMNITIES: Each party's indemnity
obligations in this Agreement shall extend to the other and to the other's
parent, subsidiaries and affiliates and their present and former directors,
officers, employees, contractors and agents, and to each of their heirs,
executors, successors and assigns.
19.03 LIMITATIONS OF SELLER'S INDEMNITY: As to matters identified in Subsection
19.01 (a), Seller shall not be required to indemnify Purchaser or pay any other
amount in connection with or with respect to the transactions contemplated in
this Agreement in any amount exceeding, in the aggregate, the Sale Price.
19.04 SOLE AND EXCLUSIVE REMEDY: If the Closing occurs, the sole and exclusive
remedy of each of the Indemnified Parties with respect to the purchase and sale
of the Interests shall be pursuant to the express provisions of this Agreement.
If the Closing occurs, each of Purchaser and Seller shall be deemed to have
waived, to the fullest extent permitted under applicable law, any right of
contribution against Seller or any of its affiliates or Purchaser of any of its
affiliates, respectively, and any and all rights, claims and causes of action it
may have against Seller or any of its affiliates or Purchaser or any of its
affiliates, respectively, arising under or based on any federal, state or local
statute, law, ordinance rule or regulation or common law or otherwise.
19.05 EXPRESS NEGLIGENCE APPLICABILITY: THE INDEMNIFICATION, RELEASE AND
ASSUMPTION PROVISIONS PROVIDED FOR IN THIS AGREEMENT SHALL BE APPLICABLE WHETHER
OR NOT THE LOSSES, COSTS, EXPENSES AND DAMAGES IN QUESTION AROSE SOLELY OR IN
PART FROM THE ACTIVE, PASSIVE, CONCURRENT, SIMPLE OR SOLE NEGLIGENCE, OR STRICT
LIABILITY OR OTHER FAULT OF ANY INDEMNIFIED PARTY OR ANY OTHER THEORY OF
LIABILITY OF FAULT, WHETHER IN LAW (WHETHER COMMON OR STATUTORY) OR EQUITY.
PURCHASER AND SELLER ACKNOWLEDGE THAT THIS STATEMENT COMPLIES WITH THE EXPRESS
NEGLIGENCE RULE AND IS CONSPICUOUS.
19.06 NO LIABILITY FOR KNOWN BREACHES AND FACTS: Neither Seller nor Purchaser
shall have any obligation or liability under this Agreement or in connection
with or with respect to the transactions contemplated in this Agreement for (i)
any breach, misrepresentation or
22
EXHIBIT 10.20
noncompliance with respect to any representation, warranty, covenant or
obligation, if such breach, misrepresentation or noncompliance shall have been
known by the other party at or before the Closing, or if (ii) any
misrepresentation or breach of warranty if such other party had knowledge of the
relevant facts at or before the Closing.
ARTICLE 20. PHYSICAL CONDITION OF THE INTERESTS:
20.01 USE OF THE INTERESTS: THE INTERESTS HAVE BEEN USED FOR OIL AND GAS
DRILLING AND PRODUCING OPERATIONS, RELATED (DISPOSAL AND OTHER) OILFIELD
OPERATIONS AND THE STORAGE AND TRANSPORTATION OF OIL AND GAS. PHYSICAL CHANGES
IN THE LAND MAY HAVE OCCURRED AS A RESULT OF SUCH USES. THE INTERESTS ALSO MAY
CONTAIN BURIED PIPELINES AND OTHER EQUIPMENT, WHETHER OR NOT OF A SIMILAR
NATURE, THE LOCATIONS OF WHICH MAY NOT NOW BE KNOWN BY SELLER OR BE READILY
APPARENT BY A PHYSICAL INSPECTION OF THE PROPERTY. PURCHASER UNDERSTANDS THAT
SELLER DOES NOT HAVE THE REQUISITE INFORMATION WITH WHICH TO DETERMINE THE EXACT
NATURE OR CONDITION OF THE INTERESTS OR THE EFFECT ANY SUCH USE HAS HAD ON THE
PHYSICAL CONDITION OF THE INTERESTS.
20.02 PURCHASER'S INVESTIGATION AND LIABILITY: PURCHASER ACKNOWLEDGES THAT (i)
IT HAS BEEN AFFORDED AN OPPORTUNITY TO (A) EXAMINE THE PROPERTIES AND SUCH
MATERIALS AS IT HAS REQUESTED TO BE PROVIDED TO IT BY SELLER, (B) DISCUSS WITH
REPRESENTATIVES OF SELLER SUCH MATERIALS AND THE NATURE AND OPERATION OF THE
INTERESTS AND (C) INVESTIGATE THE CONDITION, INCLUDING SUBSURFACE CONDITION, OF
THE REAL PROPERTY AND THE CONDITION OF THE EQUIPMENT, (ii) IT HAS ENTERED INTO
THIS AGREEMENT ON THE BASIS OF ITS OWN INVESTIGATION OF THE PHYSICAL CONDITION
OF THE INTERESTS INCLUDING SUBSURFACE CONDITION AND (iii) THE INTERESTS HAVE
BEEN USED IN THE MANNER AND FOR THE PURPOSES SET FORTH ABOVE AND THAT PHYSICAL
CHANGES TO THE INTERESTS MAY HAVE OCCURRED AS A RESULT OF SUCH USE AND (iv) IN
ENTERING INTO THIS AGREEMENT PURCHASER HAS RELIED SOLELY ON THE EXPRESS
REPRESENTATIONS (SOME OF WHICH REPRESENTATIONS TERMINATE AT THE CLOSING) AND
COVENANTS OF SELLER IN THIS AGREEMENT, ITS INDEPENDENT INVESTIGATION OF, AND
JUDGMENT WITH RESPECT TO, THE EQUIPMENT AND THE OTHER INTERESTS AND THE ADVICE
OF ITS OWN LEGAL, TAX, ECONOMIC, ENVIRONMENTAL, ENGINEERING, GEOLOGICAL AND
GEOPHYSICAL ADVISORS AND NOT ON ANY COMMENTS OR STATEMENTS OF ANY
REPRESENTATIVES, OR CONSULTANTS OR ADVISORS ENGAGED BY SELLER AND (v) LOW LEVELS
OF NATURALLY OCCURRING RADIOACTIVE MATERIAL (NORM) AND MAN-MADE MATERIAL FIBERS
(MMMF) MAY BE PRESENT AT SOME LOCATIONS. PURCHASER ACKNOWLEDGES THAT NORM IS A
NATURAL PHENOMENON ASSOCIATED WITH MANY OIL FIELDS IN THE U.S. AND THROUGHOUT
THE WORLD. PURCHASER SHOULD MAKE ITS OWN
23
EXHIBIT 10.20
DETERMINATION OF THIS PHENOMENON AND OTHER CONDITIONS. SELLER DISCLAIMS ANY
LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY PRESENCE OF NORM OR MMMF ON
THE PROPERTY AND ON THE CLOSING DATE, PURCHASER (SUBJECT TO ARTICLES 18 AND 19)
SHALL ASSUME THE RISK THAT THE INTERESTS MAY CONTAIN WASTES OR CONTAMINANTS AND
THAT ADVERSE PHYSICAL CONDITIONS, INCLUDING THE PRESENCE OF WASTES OR
CONTAMINANTS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATION. ON THE
CLOSING DATE, ALL RESPONSIBILITY AND LIABILITY RELATED TO DISPOSAL, SPILLS,
WASTE, OR CONTAMINATION ON AND BELOW THE INTERESTS SHALL BE TRANSFERRED (SUBJECT
TO ARTICLES 18 AND 19) FROM SELLER TO PURCHASER AND, EXCEPT AS PROVIDED IN
ARTICLES 18 AND 19, PURCHASER SHALL INDEMNIFY, DEFEND, SAVE, DISCHARGE, RELEASE
AND HOLD SELLER HARMLESS THEREFROM. SELLER AND PURCHASER AGREE THAT THE
PROVISIONS OF THIS ARTICLE 20 SHALL SURVIVE THE CLOSING.
ARTICLE 21. FURTHER ASSURANCES:
21.01 PERFORMANCE OF OBLIGATIONS: Seller and Purchaser shall use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable to carry out all of their
respective obligations under this Agreement and to consummate and make effective
the purchase and sale of the Interests pursuant to this Agreement.
21.02 FURTHER CONVEYANCES AND ASSUMPTIONS: After the Closing Date, Seller and
Purchaser shall execute, acknowledge and deliver all such further conveyances,
transfer orders, notices, assumptions and releases and such other instruments,
and shall take such further actions, as may be necessary or appropriate to
assure fully to Purchaser and its successors or assigns all of the Interests and
to assure fully to Seller and its successors and assigns the assumptions of
liabilities and obligations of Purchaser.
ARTICLE 22. NOTICES
All notices and consents to be given hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally; faxed (i.e.,
sent by facsimile) with receipt acknowledged; mailed by registered mail, return
receipt requested, postage prepaid; or delivered by a recognized commercial
courier to the party at the address set forth below or such other address as any
party shall have designated for itself by four (4) days prior notice to the
other party.
Notice is deemed to have been duly received on the day personally delivered; on
the day after it is sent by fax, four (4) days after mailing by certified or
registered mail and the day after it is received from a recognized commercial
courier.
24
EXHIBIT 10.20
SELLER:
EEX Operating, L.P.
EEX E&P Company, L.P.
Attn: Mr. Dave Perozzi
2500 CityWest Blvd., Suite 1400
Houston, Texas 77042
Phone: (713) 243-3215
FAX No. (713) 243-3422
PURCHASER:
Texoil, Inc.
110 Cypress Station Drive, Suite 220
Houston, Texas 77090
Attn: Mandel C. Selber
Phone : (281) 537-9920
FAX NO. (281) 537-8324
ARTICLE 23. WAIVER OF DTPA
23.01 WAIVER OF TEXAS DTPA: SELLER AND PURCHASER CERTIFY THAT THEY ARE NOT
"CONSUMERS" WITHIN THE MEANING OF THE TEXAS DECEPTIVE TRADE PRACTICES CONSUMER
PROTECTION ACT, SUBCHAPTER E OF CHAPTER 17, SECTIONS 17.41, ET SEQ., (THE
"DTPA") IF THE INTERESTS ARE LOCATED IN TEXAS. PURCHASER HEREBY WAIVES ITS
RIGHTS UNDER THE DTPA, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, PURCHASER
VOLUNTARILY CONSENTS TO THIS WAIVER. TO EVIDENCE ITS ABILITY TO GRANT SUCH
WAIVER, PURCHASER REPRESENTS TO SELLER THAT (I) IT IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION; (II) IT IS REPRESENTED BY LEGAL COUNSEL IN
ENTERING INTO THIS AGREEMENT; AND (III) SUCH LEGAL COUNSEL WAS NOT DIRECTLY OR
INDIRECTLY IDENTIFIED, SUGGESTED, OR SELECTED BY SELLER OR AN AGENT OF SELLER.
23.02 WAIVER OF COMPARABLE RIGHTS: PURCHASER WAIVES ANY COMPARABLE PROVISION OF
THE LAW OF THE STATE WHERE THE INTERESTS ARE LOCATED.
25
EXHIBIT 10.20
23.03 PURCHASERS ACKNOWLEDGMENT: PURCHASER ACKNOWLEDGES THAT THE WAIVERS IN THIS
ARTICLE 23 ARE CONSPICUOUS.
ARTICLE 24. MISCELLANEOUS
24.01 ENTIRE AGREEMENT: This Agreement together with any confidentiality
agreements relating to the Interests previously executed by Purchaser,
constitute the entire agreement between the parties and supersede all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No supplement, amendment, alteration, modification,
waiver or termination of this Agreement shall be binding unless executed in
writing by the parties hereto after the execution of this Agreement. The
provisions of Section 6.02 and Articles 15, 16, 23 and this Article 24 shall
survive any termination of this Agreement.
24.02 SEVERABILITY: In the event any covenant, condition, or provision contained
herein is held to be invalid by a court of competent jurisdiction, the
invalidity of any such covenant, condition or provision shall in no way affect
any other covenant, condition or provision contained herein; provided, however,
that any such invalidity does not materially prejudice either Purchaser or
Seller in its respective rights and obligations contained in the valid
covenants, conditions, and provisions of this Agreement.
24.03 WAIVER: No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
24.04 CONSTRUCTION OF AMBIGUITY: In the event of any ambiguity in any of the
terms or conditions of this Agreement, including any exhibits thereto and
whether or not placed of record, such ambiguity shall not be construed for or
against any party hereto on the basis that such party did or did not author the
same.
24.05 CAPTIONS: The captions in this Agreement are for convenience only and
shall not be considered a part of or affect the construction or interpretation
of any provisions of this Agreement.
24.06 GOVERNING LAW: This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Texas, without reference to the
conflict of laws or principles applied by the courts of the State of Texas. All
assignments and instruments of conveyance executed in accordance with this
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the state where the Interests conveyed thereby are located.
24.07 WAIVER OF JURY TRIAL: SELLER AND PURCHASER DO HEREBY IRREVOCABLY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, SUIT OR OTHER LEGAL PROCEEDING BASED UPON, ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
26
EXHIBIT 10.20
24.08 LIMITATION OF LIABILITY: Seller and Purchaser do hereby covenant and agree
that the recovery by either party hereto of any damages suffered or incurred by
it as a result of any breach by the other party of any provision of this
Agreement shall be limited to the actual damages suffered or incurred by the
non-breaching party as a result of the breach by the breaching party and in no
event shall the breaching party be liable to the non-breaching party for any
indirect, consequential, exemplary or punitive damages suffered or incurred by
the non-breaching party as a result of the breach by the breaching party. This
Section shall not limit Seller's right to retain the Performance Deposit as
liquidated damages under Section 5.1.
24.09 PUBLICITY: Seller and Purchaser shall consult with each other with regard
to all publicity and other releases at or prior to the Closing concerning this
Agreement and the transactions contemplated hereby and, except as required by
applicable law or the applicable rules or regulations of any governmental body
or stock exchange, neither party shall issue any publicity or other release
without the prior written consent of the other party, which consent shall not be
unreasonably withheld.
24.10 USE OF SELLER'S NAME: As soon as practicable after the Closing, Purchaser
shall remove or cause to be removed the names and marks used by Seller and all
variations and derivations thereof and logos relating thereto from the Interests
and shall not thereafter make any use whatsoever of those names, marks and
logos.
24.11 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.
24.12 ASSIGNMENT: This Agreement may not be assigned by Purchaser (except to
Cliffwood Oil & Gas Corp.) without the prior written consent of Seller, which
consent may be withheld in its sole discretion. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns. All future conveyances of all or any portion
of the Interests shall expressly recognize and perpetuate the rights and
obligations set out in this Agreement.
24.13 COSTS AND EXPENSES: Except as otherwise expressly provided herein, each
party shall bear and pay its own costs and expenses, including, but not limited
to attorneys' fees, incurred in connection with this transaction.
24.14 JOINT VENTURE, PARTNERSHIP AND AGENCY: Nothing contained in this Agreement
shall be deemed to create a joint venture, partnership, tax partnership or
agency relationship between the parties.
24.15 CONFIDENTIALITY: Prior to the Closing, Seller and Purchaser to the extent
permitted by law, shall keep confidential all information received from the
other unless such information is readily ascertainable from public or published
information or trade sources or is received from a third-
27
EXHIBIT 10.20
party having no obligation of confidentiality with respect to such information.
In the event of the termination of this Agreement, Seller and Purchaser shall
return to the other or destroy all information received from the other and, to
the extent permitted by law, keep confidential and not use any confidential
information obtained pursuant to this Agreement.
24.16 SALE OF INTERESTS LOCATED ON STATE OR FEDERAL LANDS: If the Interests are
located on State or Federal Lands, Purchaser agrees to obtain approval from the
appropriate federal and/or state agencies as soon as practicable after the
Closing and to provide Seller with a copy thereof. Purchaser shall indemnify,
defend, save, discharge, release and hold Seller harmless from and against any
liability resulting from Purchaser's failure to abide by this provision.
24.17 MEDIATION: Subject to Article 17, if a dispute arises out of or relates to
this Agreement, or the breach thereof, and if the dispute cannot be settled
through negotiation, the parties agree first to try in good faith to settle the
dispute by mediation administered by the American Arbitration Association under
its Commercial Mediation Rules (or such other form of mediation as is reasonably
acceptable to both parties) before resorting to arbitration, litigation, or some
other dispute resolution procedure. The mediator selected to resolve any dispute
hereunder shall be acceptable to both parties. If the parties cannot agree on a
mediator, then they shall make application to the Administrative Judge of the
State District Courts of Harris County, Texas for appointment of a mediator.
Each party shall bear its own attorneys' fees in connection with any mediation
and the cost of the mediation shall be shared equally by both parties.
24.18 CUMULATIVE TERMINATION: Notwithstanding anything to the contrary herein,
if the allocated value of the sum of any combination of (i) uncured Title
Defect(s), (ii) unremediated Adverse Environmental Conditions (pursuant to
Article 18), (iii) exercised Preferential Rights, (iv) unapproved Consents to
Assign, and/or (v) Material Changes in Condition exceeds five percent of the
Sale Price, either party may elect to (a) mutually agree on appropriate
adjustments to the Sale Price or (b) terminate this transaction by notifying the
other party within three days of Closing. In the event that this transaction is
terminated pursuant to this provision, Seller shall promptly return the
Performance Deposit to Purchaser.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above set forth.
SELLER:
EEX Operating, L.P. EEX E&P Company, L.P.
by and through EEX Corporation, by and through EEX Exploration
its General Partner and Production Company, LLC, its
General Partner
28
EXHIBIT 10.20
By: By:
- -------------------------------- -------------------------------
Title: Title:
ATTEST: ATTEST:
PURCHASER:
Texoil, Inc.
- -------------------------------
Mandel C. Selber III
Title: Vice-President