EXHIBIT 10(f)
SPIN-OFF TAX INDEMNIFICATION AGREEMENT
THIS SPIN-OFF TAX INDEMNIFICATION AGREEMENT (this "Agreement") is made
and entered into this 20th day of April, 1990 by and between SANTA FE PACIFIC
CORPORATION ("SFP"), a Delaware corporation, and SANTA FE ENERGY RESOURCES,
INC. ("SFER"), a Delaware corporation.
RECITALS:
WHEREAS, SFP is the common parent of an affiliated group of corporations
(the "SFP Group") under Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code"), and owns shares of common stock, par value $0.01 per
share ("Common Stock"), of SFER constituting "control" within the meaning of
Section 368(c) of the Code; and
WHEREAS, SFP is considering, among various alternatives, distributing to
its shareholders all the stock of SFER that it owns (the "Spin-Off"); and
WHEREAS, the parties hereto are entering into this Agreement to indemnify
SFP as hereinafter provided in the event the Spin-Off fails to qualify under
Section 355 due to actions by SFER after the Spin-Off;
NOW, THEREFORE, for and in consideration of $10.00 paid to SFER upon
execution hereof and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties, SFP and SFER
hereby agree as follows:
1. CONTINUED CONDUCT OF BUSINESS. During the one-year period commencing
with the Spin-Off (the "Restricted Period"), SFER agrees that it will not
cease the active conduct of its trade or business within the meaning of
Section 355(b) of the Code.
2. OPINION REQUIREMENT FOR MAJOR TRANSACTIONS UNDERTAKEN BY SFER DURING
THE RESTRICTED PERIOD. SFER agrees that during the Restricted Period it will
not (i) merge or consolidate with or into any other corporation, (ii)
liquidate or partially liquidate (within the meaning of such terms as defined
in Sections 346 and Section 302, respectively, of the Code), (iii) sell or
transfer all or substantially all its assets (within the meaning of Rev. Proc.
77-37, 1977 - 2 C.B. 568) in a single transaction or series of related
transactions, (iv) redeem or otherwise repurchase any of SFER's capital stock,
or (v) except in connection with capital stock issued to the officers,
directors or employees of SFER and its subsidiaries pursuant to employee
benefit or compensation plans of SFER, issue additional shares of SFER's
capital stock, unless SFER first obtains, and permits SFP to review, an
opinion of Andrews & Kurth or other law firm of similar repute, or a
supplemental ruling from the Internal Revenue Service, that such transaction,
and any transaction related thereto, will not affect the qualification of the
Spin-Off (or the distribution by SFP Properties, Inc. to SFP of the capital
stock of SFER that was made on December 27, 1989 (the "Initial Spin" and
together with the Spin-Off, the "Spinoffs")) under Section 355 of the Code.
3. INDEMNIFICATION.
3.1. INDEMNITY. If during the Restricted Period
(A) SFER takes any action or enters into any agreement to take
any action, including, without limitation, (i) any merger or
consolidation of SFER with or into another corporation, (ii) any
complete or partial liquidation of SFER (within the meaning of such
terms as defined in Sections 346 and 302, respectively, of the
Code), (iii) a sale or transfer of all or substantially all SFER's
assets (within the meaning of Rev. Proc. 77-37, 1977-2 C.B. 568) in
a single transaction or series of related transactions, (iv) ceasing
to actively conduct its trade or business within the meaning of
Section 355 of the Code, (v) redeeming or otherwise repurchasing any
of SFER's outstanding capital stock, or (vi) issuing any additional
shares of SFER stock, and the Spin-Off or the Initial Spin shall
fail to qualify under Section 355 of the Code primarily as a result
of such action or actions; or
(B) SFER amends any Shareholder Rights Plan implemented by
SFER prior to, and in effect at the time of, the Spin-Off ("Rights
Plan"), or redeems any outstanding common share purchase rights (the
"Rights") issued pursuant to such Rights Plan, and the Spin-Off or
the Initial Spin shall fail to qualify under Section 355 of the Code
primarily as a result of any person thereafter, but within the
Restricted Period, acquiring stock of SFER which acquisition would
have caused the Rights to become exercisable had the Rights remained
outstanding under the Rights Plan as originally adopted; or
(C) any person shall consummate a Qualifying Offer (as such
term is defined in a Rights Plan in effect at the time of the
Spin-Off) for the stock of SFER, and the Spin-Off or the Initial
Spin shall fail to qualify under Section 355 of the Code primarily
as a result of the consummation of such Qualifying Offer;
then SFER shall indemnify and hold harmless SFP and each member of the
SFP Group against any and all federal, state and local taxes, interest,
penalties and additions to tax imposed upon or incurred by the SFP Group
or any member thereof as a result of the failure of the Spin-Off or the
Initial Spin to so qualify to the extent provided herein. SFP and each
other member of the SFP Group shall be indemnified and held harmless
under this Paragraph 3.1 without regard to the fact that SFP or any other
member of the SFP Group may have reviewed an opinion or supplemental
ruling pertaining to the action pursuant to Paragraph 2.
3.2 INDEMNIFIED LIABILITY. For purposes of this Agreement, the term
"Indemnified Liability" means any liability imposed upon or incurred by
the SFP Group or any member of the SFP Group for which SFP or any other
member of the SFP Group is indemnified and held harmless under Paragraph
3.1, but shall not refer to the amount of such liability.
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3.3 AMOUNT OF INDEMNIFIED LIABILITY FOR INCOME TAXES. The amount of
an Indemnified Liability for a federal or state tax based on or
determined with reference to income shall be deemed to be the amount of
tax computed by multiplying (i) the taxing jurisdiction's highest
marginal tax rate applicable to taxable income of corporations such as
SFP of the character subject to tax as a result of the failure of the
Spin-Off (or the Initial Spin) to qualify under Section 355 of the Code
for the taxable period in which the Spin-Off occurs, times (ii) the gain
or income of the SFP Group or member thereof which is subject to tax in
the taxing jurisdiction as a result of the failure of the Spin-Off (or
the Initial Spin) to qualify under Section 355 of the Code, and, in the
case of a state, times (iii) the percentage representing the extent to
which such gain or income is apportioned or allocated to such state;
PROVIDED, HOWEVER, that in the case of a state tax determined as a
percentage of federal income tax liability, the amount of Indemnified
Liability shall be deemed to be the amount of tax computed by multiplying
(i) that state's highest percentage rate applicable to the taxable income
of corporations such as SFP of the character subject to tax as a result
of the failure of the Spin-Off (or the Initial Spin) to qualify under
Section 355 of the Code for the taxable period in which the Spin-Off
occurs, times (ii) the amount of deemed federal income tax (whether or
not incurred) imposed upon the SFP Group or any member thereof from the
failure of the Spin-Off (or the Initial Spin) to qualify under Section
355 of the Code computed in accordance with this Paragraph 3.3, times
(iii) the percentage representing the extent to which the gain or income
required to be recognized on the Spin-Off (or the Initial Spin) is
apportioned or allocated to such state.
3.4 INDEMNITY REDUCED BY INCOME TAX BENEFITS FROM INDEMNIFIED
LIABILITY. If an Indemnified Liability is of a type that constitutes a
deduction from income in any taxable period in determining the SFP
Group's or any of its member's liability for a federal or state tax based
upon or determined with reference to income, the amount that SFER would
otherwise be required to pay as indemnification for such Indemnified
Liability shall be reduced by the aggregate deemed reduction, on account
of such deduction of the Indemnified Liability, in the tax liability of
the SFP Group or any member to all taxing jurisdictions over all taxable
periods in which the Indemnified Liability is deductible. The deemed
reduction in tax liability to a taxing jurisdiction for any taxable
period in which all or a portion of the Indemnified Liability is
deductible shall be deemed to be the amount computed by multiplying (i)
such taxing jurisdiction's highest marginal tax rate applicable to the
taxable income of corporations such as SFP of the character against which
the Indemnified Liability is deductible, times (ii) the portion of the
Indemnified Liability that constitutes a deduction in such taxing
jurisdiction in such taxable period, and, in the case of a state, times
(iii) the percentage representing the extent to which the deduction for
the Indemnified Liability is apportioned or allocated to such state;
PROVIDED, HOWEVER, that in the case of a state tax determined as a
percentage of federal income tax liability, the amount of deemed
reduction in tax liability to such state for any taxable period in which
all or a portion of the Indemnified Liability is deductible shall be
deemed to be the amount computed by multiplying (i) such state's highest
percentage rate applicable to the taxable income of corporations such as
SFP in such taxable period of such character against which the
Indemnified Liability is deductible, times (ii) the deemed reduction in
federal income tax in such taxable period resulting from the
deductibility of the Indemnified Liability computed in accordance with
this Paragraph 3.4, times (iii) the percentage representing the extent to
which the deduction for the Indemnified Liability is apportioned or
allocated to such state. The amount of such reduction in SFER's liability
shall be unaffected by any interest
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paid to the SFP Group, or any member thereof, by a taxing authority by
reason of any such deduction.
3.5 INDEMNITY AMOUNT. With respect to any Indemnified Liability, the
amount which SFER shall pay to or on behalf of SFP as indemnification
(the "Indemnity Amount") shall be the amount of the Indemnified
Liability, as determined and adjusted under Paragraphs 3.3 and 3.4.
4. PROCEDURAL MATTERS.
4.1 NOTICE. If either SFP or SFER receives any written notice of
deficiency, claim or adjustment or any other written communication from a
taxing authority that may result in an Indemnified Liability, the party
receiving such notice or communication shall promptly give written notice
thereof to the other party, PROVIDED that any delay by SFP in so
notifying SFER shall not relieve SFER of any liability to SFP hereunder
except to the extent SFER is materially and adversely prejudiced by such
delay. SFP undertakes and agrees that from and after such time as SFP
obtains knowledge that any representative of a taxing authority has begun
to investigate or inquire into the Spin-Off or the Initial Spin (whether
or not such investigation or inquiry is a formal or informal
investigation or inquiry), SFP shall (i) notify SFER thereof, PROVIDED
that any delay by SFP in so notifying SFER shall not relieve SFER of any
liability to SFP hereunder, (ii) consult with SFER from time to time as
to the conduct of such investigation or inquiry, (iii) provide SFER with
copies of all correspondence between SFP or its representatives and such
taxing authority or any representative thereof pertaining to such
investigation or inquiry and (iv) arrange for a representative of SFER to
be present at (but not participate in) all meetings with such taxing
authority or any representative thereof pertaining to such investigation
or inquiry.
4.2 WRITTEN ACKNOWLEDGMENT. Promptly upon receipt of notice as
provided in Paragraph 4.1, SFER shall confirm in writing to SFP that the
liability asserted in the notice of deficiency, claim or adjustment or
other written communication would, if imposed upon or incurred by the SFP
Group or any member thereof, be an Indemnified Liability, unless SFER
believes in good faith that such liability would not be an Indemnified
Liability in which case SFER shall set forth in writing to SFP the
grounds for such belief.
4.3 TAX PROCEEDINGS CONTROLLED BY SFER. Any tax proceeding that may
result in an Indemnified Liability, which is acknowledged as such by
SFER, shall be conducted in accordance with this Paragraph 4.3.
Promptly upon SFER's written acknowledgment that the asserted
liability is an Indemnified Liability, SFER shall assume and direct the
defense or settlement of the proceeding. If the Indemnified Liability is
grouped with other unrelated asserted liabilities or issues in the
proceeding, SFP and SFER shall use their respective best efforts to cause
the Indemnified Liability to be the subject of a separate proceeding. If
such severance is not possible, SFER shall assume and direct and be
responsible only for the matters relating to the Indemnified Liability.
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Upon request, during the course of the tax proceedings, SFER shall from
time to time furnish SFP with evidence reasonably satisfactory to SFP of its
ability to pay the full amount of the Indemnified Liability. If at any time
during such tax proceedings SFP reasonably determines, after due investigation,
that SFER could not pay the full amount of the Indemnified Liability, if
required, then SFP may assume control of the tax proceedings in accordance with
Paragraph 4.4.
SFER shall pay all expenses related to the Indemnity Liability, including
but not limited to fees for attorneys, accountants, expert witnesses or other
consultants retained by it. To the extent that any such expenses have been or
are paid by SFP or any member of the SFP Group, SFER shall promptly reimburse
SFP or such member therefor.
SFP shall not pay (unless otherwise required by a proper notice of levy and
after prompt notification to SFER of SFP's receipt of notice and demand for
payment), settle, compromise or concede any portion of the Indemnified Liability
without the written consent of SFER. SFP shall, at SFER's sole cost (including
but not limited to any reasonable out-of-pocket costs incurred by SFP), take
such action as SFER may reasonably request (including but not limited to the
execution of powers of attorney for one or more persons designated by SFER, and
the filing of a petition, complaint, amended return or claim for refund) in
contesting the Indemnified Liability. SFER shall, on a timely basis, keep SFP
informed of all developments in the proceedings and provide SFP with copies of
all pleadings, briefs, orders, and other written papers pertaining thereto.
Subject to satisfaction of the conditions herein set forth, SFER may direct
SFP to settle the Indemnified Liability on such terms and for such amount as
SFER may direct. SFP may condition such settlement on receipt, prior to the
settlement, from SFER of the Indemnity Amount less any amounts to be paid
directly by SFER to the taxing authority. SFER may direct SFP, at SFER's
expense, to pay an asserted deficiency for the Indemnified Liability out of
funds provided by SFER, and to file a claim for refund. If SFER pays SFP the
Indemnified Amount pursuant to Paragraph 4.5 and SFP or any other member of the
SFP Group receives a refund of any portion of amounts paid to a taxing
jurisdiction in respect of the Indemnified Liability, SFP shall pay any and all
such refund proceeds to SFER, together with interest thereon for each day and
the actual number of days commencing on the date such refund is received by SFP
at the rate of one (1) percentage point above the monthly average of the daily
Effective Funds Rate, as stated by The Federal Reserve Bank of New York;
PROVIDED, HOWEVER, that the provision for interest herein shall not be construed
to give SFP the right to defer payment to SFER of any refund proceeds hereunder.
4.4 TAX PROCEEDINGS CONTROLLED BY SFP. Should SFER not provide SFP with
the confirmation contemplated by Section 4.2 within thirty (30) days following
receipt of notice provided in Section 4.1 or, following such confirmation,
should SFER fail within thirty (30) days following request therefor to furnish
to SFP evidence of its ability to pay the full amount of the Indemnified
Liability or should SFP reasonably believe after due investigation that SFER
could not pay the full amount of the Indemnified Liability if required, then SFP
may assume control of the tax proceeding upon the following terms: (i) SFP will
diligently defend against the claim of any taxing authority that the Spin-Off
(or the Initial Spin) resulted in taxable income to it or any other member of
the SFP Group, without regard to the indemnification provided herein, including
the pursuit of the appeal of any adverse determinations to the appropriate
tribunal (unless advised by
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independent counsel in its reasonable judgment that SFP or such other member of
the SFP Group would not prevail upon any such appeal) and shall employ such
resources, including independent counsel, in conducting such defense as are
reasonably commensurate to the nature and magnitude of the claim; (ii) SFP will
consult with SFER as to the conduct of all proceedings, will provide SFER with
copies of all protests, pleadings, briefs, filings, correspondence and similar
materials relative to the proceedings and will arrange for a representative of
SFER to be present at (but not to participate in) all meetings with the relevant
taxing authorities and all hearings before any court; and (iii) neither SFP nor
any other member of the SFP Group will settle, compromise or concede any claim
that would result in an Indemnified Liability unless SFP has made the
determination, and has been so advised by independent counsel, that such
settlement is fair to SFER and its stockholders and is reasonable in the
circumstance. Subject to the above, any such tax proceeding shall be controlled
and directed exclusively by SFP and may be contested, defended, paid, settled,
compromised or conceded by SFP and any related expenses incurred by SFP or any
member of the SFP Group, including but not limited to, fees for attorneys,
accountants, expert witnesses or other consultants shall be reimbursed by SFER,
if SFER admits or is found to have incorrectly failed to acknowledge the
asserted liability as an Indemnified Liability as provided in Paragraph 4.2;
PROVIDED, HOWEVER, that if after SFP's assumption of control of the proceedings,
SFER acknowledges in writing that the asserted liability is an Indemnified
Liability or demonstrates its ability to pay the full amount of the Indemnified
Liability if required, SFER shall (if practical and upon its request) promptly
assume and direct a proceeding which shall thenceforth be conducted in
accordance with Paragraph 4.3, PROVIDED, FURTHER HOWEVER, that SFP will not be
required to pursue the claim in the federal district court, Court of Claims or
any state court if as a prerequisite to such Court's jurisdiction, it is
required to pay the asserted liability unless the funds necessary to invoke such
jurisdiction are provided by SFER.
4.5 TIME AND MANNER OF PAYMENT. Unless otherwise agreed in writing, SFER
shall pay to SFP the Indemnity Amount (less any amount paid directly by SFER to
the taxing authority) within seven (7) business days after the date payment of
the Indemnified Liability is made, whether by SFP or SFER, to the taxing
authority. Such payment shall be paid by SFER to SFP by wire transfer of
immediately available funds to an account designated by SFP by written notice to
SFER prior to the due date of such payment. If SFER delays making payment beyond
the due date hereunder, SFER shall pay interest to SFP on the amount unpaid at
the rate of one (1) percentage point above the monthly average of the daily
Effective Federal Funds Rate, as stated by The Federal Reserve Bank of New York
for each day and the actual number of days for which any amount due hereunder is
unpaid; PROVIDED, HOWEVER, that this provision for interest shall not be
construed to give SFER the right to defer payment beyond the due date hereunder.
4.6 REFUND OF AMOUNTS PAID BY SFER. Should SFP or any other member of the
SFP Group receive a refund in respect of amounts paid by SFER to any taxing
authority on SFP's behalf, or should any such amounts that would otherwise be
refundable to SFER be applied by the taxing authority to obligations of SFP or
any other member of the SFP Group unrelated to the Spinoffs, then SFP shall,
promptly following receipt (or notification of credit), remit such refund,
together with interest thereon, which interest shall be paid at the rate of one
(1) percentage point above the monthly average of the daily Effective Federal
Funds Rate, as stated by The Federal Reserve Bank of New York for each day and
the actual number of days commencing on the date such refund is received (or
credit
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applied); PROVIDED, HOWEVER, that the provision for interest herein shall to be
construed to give SFP the right to defer payment to SFER of any refund proceeds
hereunder.
4.7 COOPERATION. SFP and SFER shall cooperate with one another in a timely
manner in any administrative or judicial proceeding involving any matter that
may result in an Indemnified Liability. SFP and SFER agree that such cooperation
shall include, without limitation, making available to the other party, during
normal business hours, all books, records and information, officers and
employees (without substantial interruption of employment) necessary or useful
in connection with any such judicial or administration proceeding. The party
requesting or otherwise entitled to any books, records, information, officers or
employees pursuant to this Paragraph 4.7 shall bear all reasonable out-of-pocket
costs and expenses (except reimbursement of salaries, employee benefits and
general overhead) incurred in connection with providing such books, records,
information, officers or employees.
4.8 DISPUTE RESOLUTION. In an effort to resolve informally and amicably any
claim or controversy arising out of or related to the interpretation or
performance of this Agreement without resorting to litigation, each party shall
first notify the other in writing of its position with respect to any difference
or dispute hereunder that requires resolution. SFP and SFER shall each designate
an employee to investigate, discuss and seek to settle the matter between them.
If the two are unable to settle the matter within 30 days after the latest such
notification (or, if one party gives such notification and the other party fails
to do so within 15 days after receipt of such notification, within 30 days after
such notification), the matter shall be submitted to a senior officer of each of
SFP and SFER for consideration. If settlement cannot be reached through their
efforts within an additional 30 days, or such longer time period as they shall
agree upon, the parties shall consider arbitration or other alternative means to
resolve the dispute; PROVIDED, HOWEVER, that the parties hereby agree that any
disputes concerning the calculation of amounts (E.G., an Indemnity Amount) or
similar accounting matter shall be resolved by a nationally recognized public
accounting firm selected by the parties, whose fees and expenses shall be shared
equally by SFP and SFER. With respect to any dispute concerning other matters,
if they are unable to agree on an alternative dispute resolution mechanism,
either party may initiate legal proceedings to resolve such matter.
5. MISCELLANEOUS.
5.1 NOTICES. Any notice, request, instruction or other document to be
given under this Agreement by any party to another party shall be in writing,
and shall be deemed to have been duly given or delivered when delivered
personally, or telecopied (receipt confirmed, with a copy sent by certified or
registered mail as set forth in this Agreement) or, upon receipt (as indicated
by return receipt), when sent by certified or registered mail, postage prepaid,
return receipt requested, or by Federal Express or other overnight delivery
service, to the address of the party set forth below or to such address as the
party to whom notice is to be given may provide in a written notice to the other
party to this Agreement:
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If to SFP, to:
Santa Fe Pacific Corporation
224 South Michigan Avenue
Chicago, Illinois 60604-2401
Telecopier No.: (312) 786-6846
Telephone No.: (312) 786-6000
Attention: Daniel Westerbeck
Vice President - Tax Counsel
If to SFER, to:
Santa Fe Energy Resources, Inc.
1616 South Voss Road
Suite No. 1000
Houston, Texas 77057
Telecopier No.: (713) 268-5341
Telephone No.: (713) 783-2401
Attention: James L. Payne, President
and
David L. Hicks, Esq., General Counsel
5.2 TERMINATION. The parties hereto agree that if the Spin-Off has not
occurred prior to 5:00 p.m., Chicago time, on December 31, 1991, this Agreement
shall terminate and cease to be of any force or effect.
5.3 GOVERNING LAW: JURISDICTION. This Agreement shall be governed by and
construed under the laws of the State of Illinois as applied to agreements made
and to be performed in the State of Illinois without regard to the conflict of
laws principles thereof. Each of the parties consents to personal jurisdiction
in respect of any action arising under or in connection with this Agreement
instituted in the United States District Court for the Northern District of
Illinois, and to service of process upon it in any manner permitted under the
laws of the State of Illinois.
5.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only with
the written consent of each of the parties.
5.7 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its terms
to the fullest extent permitted by law.
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5.8 FURTHER ASSURANCE. Each of the parties shall, without further
consideration, use reasonable efforts to execute and deliver such additional
documents and take such other action, as the other parties, or any of them may
reasonably request to carry out the intent of this Agreement and the
transactions contemplated by this Agreement.
5.9 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties in respect of the actions and transactions
contemplated by this Agreement. There are no restrictions, promises,
inducements, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to in this Agreement.
5.10 SPECIFIC PERFORMANCE. Each of the parties acknowledges and agrees
that in the event of any breach of this Agreement, except for the failure of
SFER to pay any Indemnity Amount, the non-breaching party would be irreparably
harmed and could not be made whole by monetary damages. It is accordingly agreed
that the parties will waive the defense in any action for specific performance
that a remedy at law would be adequate and that the parties, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Agreement in any action
instituted in any court of the United States or any state thereof having
jurisdiction for such action.
5.11 PARTIES IN INTEREST. Neither party may assign its rights or
delegate any of its duties under this Agreement (except to another person
acquiring substantially all of the assets of such party by purchase, merger,
consolidation or otherwise) without the prior written consent of the other. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and, except as otherwise prohibited, their respective successors and
assigns. Nothing contained in this Agreement, express or implied, is intended to
confer upon any other person or entity any benefits, rights or remedies
PROVIDED, HOWEVER, that other members of the SFP Group shall be deemed third
party beneficiaries of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
SANTA FE PACIFIC CORPORATION SANTA FE ENERGY RESOURCES, INC.
By: /s/ SIGNATURE ILLEGIBLE By: /s/ J. L. PAYNE
Title: Title: