EXHIBIT 10.42
EXPLORATION AGREEMENT
THIS EXPLORATION AGREEMENT (the "Agreement") is entered into this 11th day
of April, 2006, between TERRA INSIGHT CORPORATION, a corporation organized under
the laws of the State of Delaware ("TIC"), and Calyk Enerji Sanayi ve Ticaret
A.S., a corporation formed under the laws of Turkey ("CALIK"). TIC and CALIK
are collectively referred to herein as the "Parties," and individually, as a
"Party".
WHEREAS, the parties are desirous of (1) working together for the purposes
of discovery and exploitation of oil and gas in connection with the certain
properties as described herein, and (2) defining their respective
responsibilities, interests, and liabilities in connection with such discovery
and exploration;
WHEREAS, in furtherance of this Agreement, TIC may cause the formation of
a corporation, limited partnership or other entity (the "Joint Venture Entity")
under the laws of the State of Delaware, or such other foreign jurisdiction as
TIC may, in its sole judgment, select, with TIC or other designee of TIC as the
general partner or owner of the Joint Venture Entity;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and intending to be legally bound hereby, the Parties agree as
follows:
ARTICLE 1
PROPERTY, COSTS OF EXPLORATION AND DEVELOPMENT
1.1 CALIK hereby represents that it has obtained exploration licenses
("Licenses") which allow it to explore and produce oil and gas from a certain
project site commonly known as ERZURUM area (the "Project Site"). The Project
Site is more fully described in Exhibit 1 hereto. The Licenses shall be annexed
as Exhibit 2 hereto. CALIK represents that it has 100% of all rights to explore
the oil and gas pursuant to the Licenses, and no interest, royalty or otherwise,
have been given to any other party. CALIK agrees that the exploration,
development and commercial production of oil and gas on the Project Site shall
occur strictly in accordance with the terms of this Agreement and the Petroleum
Law of Turkey ("Law") and the revenues resulting from such activities will be
disbursed in accordance with the provisions and the Law hereof.
1.2 In the proportions set forth below, CALIK and TIC shall be responsible
for, and shall bear the costs of (a) obtaining the oil Licenses to produce oil
and gas rights from the Project Site, and (b) the exploration, drilling and
commercial recovery of oil and gas at location on the Project Site. The
allocation of costs between the Parties shall be in accordance to their
respective Working Interest as set forth in Article 5 below.
ARTICLE 2
DATA TO BE PROVIDED BY CALIK
2.1 CALIK, at its sole cost, agrees to provide TIC with maps of the
Project Site, indicating the already existing exploration sites (if any), and
containing available geological data relating to the Project Site. CALIK shall
also similarly furnish TIC with all available geological data:
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A. Topographic maps of the Area, scale 1:100,000 and 1:25,000, to work
on in Ankara Offices.
B. Available Geological Map and related data of License Area
C. Available maps of Gravity and Magnetic surveys
D. Representative seismic lines of the License Area
2.2 While it is still possible for TIC to perform the Services without the
above listed materials, the Parties acknowledge the availability of theses
materials should improve the precision of the projections.
ARTICLE 3
SCANNING, SURVEY AND ANALYSIS
3.1. TIC will provide a proposal for the report on the Project Sites,
including, but not limited to, mapping and analysis of the Project Site, as more
fully specified in Exhibit 3 as description of services ("Services").
3.2 On the date this Agreement is executed, CALIK shall: (a) make payment
of FIFTY THOUSAND DOLLARS (USD $50,000) to TIC, payable by wire transfer,
according to the agreed time schedule for the Services (USD $ 20,000 at the
commencement of the Services, USD $ 15,000 when TIC interim progress report
delivered and USD $ 15,000 at the delivery of the final report), and (b) shall,
on the date this Agreement is executed, convey a TWENTY PERCENT (20%) "Working
Interest" (as defined in Article 5 below) in the oil rights and in the gas
rights pursuant to the Licenses for the Project Site, and shall convey a 20%
Working Interest in any other sites that may develop thereafter in the general
vicinity, subject to the Joint Operating agreement to be signed by and between
the Parties as indicated in Article 5 below.
ARTICLE 4
TIME SCHEDULE
At the time of execution of this Agreement, there is no set schedule for
surveying site selection. The Parties agree to use reasonable commercial efforts
to reach agreement on (1) a time schedule for the performance of the Services,
(2) a time schedule for the exploration and drilling of the Project Site and (3)
the associated budgets for the exploration and drilling on the Project Site. The
Parties anticipate that such schedules and budgets will be prepared and approved
by both parties annually. The Parties agree that they each will use reasonable
commercial efforts in performing their respective obligations under this
Agreement.
ARTICLE 5
WORKING INTEREST
5.1. The "Working Interest" as referenced or provided for in this
Agreement shall be defined as all rights and interests in the exploration,
development, production and exploitation of all oil and gas in connection with
the Project Site pursuant to the Licenses, and entitlement to all revenues, in
any form, generated from the sale or other transfer of oil and gas from the
Project Site. TIC shall have a twenty percent (20%) Working Interest, and CALIK
shall have an eighty percent (80%) Working Interest. Parties are responsible and
liable for expenses, unless otherwise provided for herein, in accordance with
their respective Working Interest percentage. Expenses shall mean the following:
(i) direct costs from third parties, including, but not limited to, equipment,
labor or expenses, in connection with the exploration, drilling and commercial
recovery of oil and gas at location on the Project Site; (ii) costs of TIC
related to its scanning, survey and analysis services in connection with the
Project Site and any other sites that may develop thereafter in the general
vicinity; and (iii) direct costs of CALIK specifically related to the Project
Site and (iv) geological and geophysical studies, geochemistry, seismic costs
and drilling costs. For purposes of this Article, allocated salary costs of
CALIK based on time sheets shall be deemed a direct cost of CALIK and shall be
included in the computation of Expenses.
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5.2. The Parties agree to enter into a detailed joint operating agreement
following the completion of the Services according to which Calik shall be
designated as the Operator and the registration formalities for TIC as a
petroleum right holder shall be completed afterwards. The parties agree to sign
the Joint Operating Agreement ("JOA") based on the AIPN 2002 Model for joint
operating agreement taking into consideration the following basic principles:
a. JOA will be effective on the signing date the Turkish authorities
grants TIC the petroleum right holder status according to the Law;
b. TIC will have 20% and Calik will have 80% Working Interest in the
JOA;
c. TIC will have one (1) and Calik will have two (2) representatives in
the Operating Committee;
d. Calik will act as the Operator;
e. Annual Work Program and Budget to be prepared according to the JOA
will be subject to the consent of the Operating Committee's majority
decisions,
f. In case drilling operations after the first well are not agreed
unanimously by the Operating Committee then Sole Risk provisions in
the JOA will be applicable;
g. The Parties will have the right to assign their interests and
liabilities under JOA to third parties with the right of first
refusal, and
h. Accounting Procedures will also be based AIPN Model.
ARTICLE 6
FISCAL PROCEDURE
An "Accounting Procedure" will be prepared and signed by both Parties and
will be annexed to the Joint Operating Agreement. Accounting Procedures defines
and establishes the principles and methods of accounting that shall truly
reflect the actual cost of operations related to exploration, development and
production expenditures and investments. In the absence of specified accounting
procedure, generally accepted international petroleum accounting principles
shall govern.
ARTICLE 7
TERM
The term of the Agreement shall commence as of the date hereof and shall
continue until the latest of the termination of the last Licenses, unless
otherwise terminated in accordance with the provisions of this Agreement.
ARTICLE 8
BOOKKEEPING AND ACCOUNTING
Bookkeeping and accounting principles shall be defined in the Accounting
Procedure and shall be kept in accordance to generally accepted international
petroleum accounting principles, which shall be indicated in the Accounting
Procedure
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ARTICLE 9
GENERAL PROVISIONS
9.1 Intellectual Property. The Parties agree and acknowledge that no
license, either express or implied, is hereby granted to CALIK or to any other
party to use any of TIC's proprietary information or technology, or that of any
affiliate of TIC. CALIK shall not use the results of the surveys or any other
services performed by TIC or any TIC affiliate for any purpose except in
furtherance of the exploration of the Project.
9.2 Limitation of Liability. Each of the Parties shall apply its
technology and know-how on a reasonable commercial efforts basis and will not be
held liable for any unintentional inaccuracies in the results. The Parties
recognize that, as with any hydrocarbon prospecting technology, only test
drilling may serve as proof that a commercial, producable hydrocarbon exists.
TIC's reports shall be subject to a standard disclaimer language regarding the
reports.
9.3 Warranties by CALIK. CALIK represents and warrants to TIC that it
shall not use any aspect of TIC's services or documents created relevant to or
as a result, direct or indirect, of TIC's services for purposes which may be
illegal under any applicable law, such as insider stock dealing or any other
offense.
9.4 Warranties by TIC. TIC warrants to CALIK that application of the
technologies and know-how of TIC do not violate any applicable law or rights of
third parties.
9.5 Force Majuere. If the performance of this Contract or any obligation
under it is prevented restricted or interfered with by reason of circumstances
beyond the reasonable control of the Party obliged to perform it, the party so
affected upon giving prompt notice to the other Party shall be excused from
performance to the extent of the prevention restriction or interference, but the
party so affected shall use its best efforts to avoid or remove such causes of
non-performance and shall continue performance under this Agreement with the
utmost dispatch whenever such causes are removed or diminished.
9.6 Notices. Notifications and other types of communications under this
Agreement shall be made in writing and can be sent by courier service (or
delivered by hand courier) or by facsimile. If delivery is made by courier
service, such delivery shall be considered received on the day of receipt (in
accordance with the courier service receipt). If notification is sent by
facsimile, such notice shall be considered received on the next working day
after it is sent, provided the sender's facsimile has a confirmation report.
Notifications and other types of communications shall be sent to the following
addresses:
If to TIC, to:
Attn.: Roman Rozenberg, Chief Executive Officer
Terra Insight Corporation
99 Park Avenue, 16th Floor
New York, NY 10016
Telephone: 212-286-9197
Facsimile: 212-286-9109
Email: rrozenberg@aol.com
------------------
With copy to (which shall not constitute notice):
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Dan Brecher, Esq.
99 Park Avenue, 16th Floor
New York, New York 10016
Telephone: 212-286-0747
Facsimile: 212-808-4155
e-mail: brecherlaw@compuserve.com
-------------------------
If to CALIK, to:
Mr. Erdal Celik, Managing Director
Calik Enerji Sanayi ve Ticaret A.S.
Yasam Cad No: 7 Ak Plaza Kat:9 06520
Sogutozu Ankara, Turkey
Telephone: +90 (312) 207 71 00
Facsimile: +90 (312) 207 71 66
e-mail: muharrem.turkarslan@calikenerji.com
-----------------------------------
Each Party may notify the other of the change of its address and/or
contact number or person. Such notifications shall be obligatory for the other
Party as of the day of receipt in accordance with the above-stated provisions.
9.7 Confidentiality. Each Party shall not disclose the provisions of this
Agreement to any third parties, subject to the following exceptions:
(a) Exception 1: Each Party shall have the right to disclose the
terms of this Agreement in the course of arbitration proceedings on the issues
pertaining to this Agreement and only to the extent which is necessary for the
protection of their rights in the arbitration.
(b) Exception 2: Each Party shall have the right to consult with its
lawyer / auditor / investment banker / other professional advisor with regard to
this Agreement and, thus to disclose the provisions of this Agreement to such
person, provided that this person is given the knowledge of this Agreement only
in connection with being instructed to advise on, or take other legal steps in
connection with, this Agreement and not any other matter, and provided that such
person is bound to keep such information confidential under the terms of the
engagement or professional standards or legislation by which such person is
bound.
(c) Exception 3: Each Party shall have the right to disclose the
Agreement to its banker and to accredited or institutional potential funding
sources, if requested to do so in order to comply with `know your company" rules
or similar anti-money laundering provisions, due diligence requirements, or in
relation to a private placement funding to accredited or institutional investors
in connection with any such private placement by such Party.
(d) Exception 4: Each Party shall have the right to disclose the
Agreement if required to do so by operation of any applicable law or rules.
CALIK acknowledges that TIC shall disclose this Agreement and such other
relevant information as is pursuant to applicable law and rules governing
publicly held companies filing reports with the SEC.
9.8 No Waiver. No delay or omission by a Party in exercising any right,
power or remedy under this Agreement shall impair such right, power or remedy or
be construed as a waiver of the right of such Party to exercise the right, power
of remedy at any time in the future and/or to the full extent, except as
provided herein.
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9.9 Timely Deliveries. In the case of material failure of TIC to perform
Services in a timely manner as agreed in the time schedule, Calyk shall first
notify TIC, in writing, of any such failures, and request TIC to correct such
material deficiencies within thirty (30) days period or depending on the nature
of the deficiency any other reasonable time to be determined, in good faith by
Calik after consultation with TIC. If Calik remains dissatisfied with such
correction or cure, Calik is entitled to take this issue to Arbitration with a
written notice to TIC. TIC has similar rights to notify Calik of any material
failure of Calik, and Calik has similar cure rights, which, if not cured timely,
TIC has similar rights to take the issue to Arbitration .
9.10 Entire Agreement. This Agreement contains the entire agreement of the
Parties on the subject matter of this Agreement and supersedes any previous
agreements, understandings or representations, whether written or verbal which
were made by the Parties prior to the entry into this Agreement. It is expressly
acknowledged and understood that there are no other promises, representations or
understandings in relation to the subject of this Agreement other than those
clearly expressed in the Agreement. This Agreement is binding upon the assigns,
and successors of the Parties.
9.11. Decision to drill or drop : If the parties are unable to agree to
drill the first well in the licenses, then the Party who decides not to drill
the first well assign its Working Interest to the other Party with 1 (one) US
Dollars consideration.
9.12. Assignment. The Parties may not assign this Agreement in whole or in
part to any other party without the written consent of the other Party, except
to an affiliated company provided that assigning Party guarantees the adherence
of such affiliated company to the provisions of this Agreement. Notwithstanding
the foregoing, except for TIC's obligations in connection with the performance
of the Services, TIC shall be entitled to, assign any of its rights and
obligations to the Joint Venture Entity. In case either Party seeks to effect
any other assignment, the following procedure shall be followed:
In case of assignment with the written consent, other than assignment by
TIC to the Joint Venture Entity, the following procedure shall be followed:
9.12.1. The Assigning Party shall inform the Noticed Party in writing
("Sale Notice") immediately regarding the name of the
potential buyer, payment conditions and the price proposed by
the potential buyer ("Proposed Price"). The Assigning Party
shall promptly provide the Noticed Party with all materials
and information reasonably needed and readily available that
was provided to the third party proposed recipient of the
assignment.
9.12.2. The Noticed Party shall declare in writing to the Assigning
Party its intention to buy or not to buy the shares at the
Proposed Price within 30 (thirty) days from its receipt of the
Sale Notice.
9.12.3. If the Noticed party declares its intention not to buy the
shares or does not give any response to the Sale Notice within
30 (thirty) days, then the Assigning Party shall be free to
sell the shares to the potential buyer under the terms and
conditions stated in the Sale Notice.
9.12.4. The Assigning Party shall accomplish the sale and transfer of
the shares to the potential buyer within 30 (thirty) days
following its receipt of the notice of the Noticed Party
declaring its intention not to buy the shares or expiration of
the 30 (thirty) days period granted to the Noticed Party
without any response.
9.12.5. On the condition that, the Noticed Party declares its
intention to buy the shares, then the transfer of shares and
payment of the Proposed Price shall be accomplished within 30
(thirty) days following the declaration of the Noticed Party.
The Asssigning Party shall be free to sell the shares to the
third party stated in the Sales Notice if transfer of the
shares to the Noticed Party is not finalized within the 30
(thirty) days period.
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9.13 Severability. If, as a result of a final determination of judicial
proceeding before a court of competent jurisdiction, any provision of this
Agreement is held to be invalid, illegal or unenforceable, it shall be
considered severed from the Agreement, and all other provisions, rights and
obligations shall continue without regard to the severed provisions.
9.14 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York, without regard to principles
of conflicts of law. All disputes arising out of this Agreement or in connection
with this Agreement shall be adjudicated before the federal or state courts
located in New York County in the State of New York. The Parties hereby
irrevocably consent to the jurisdiction of such courts and agree to said venue,
and waive any improper venue or inconvenient forum objections thereto. Service
of process being effected upon a party pursuant to this Section 9.14 or pursuant
to Section 9.15 may be made by overnight mail sent to the most current address
of such party in accordance with Section 9.6.
9.15 Arbitration. Without prejudice to the jurisdiction of courts located
in New York to enforce the terms of this Agreement as set forth above, a party
may seek interpretation and/or enforcement of the Agreement by submitting the
disputed issue to the New York City office of JAMS, The Resolution Experts. All
discovery will be completed, and the arbitration hearing will commence, within
ninety (90) days after appointment of the arbitrator. Each party will be
entitled to discovery by requests for admission, by request for production of
documents and by depositions of no more than five (5) individuals, but by no
other means. Unless the arbitrator finds that exceptional circumstances justify
delay, the hearing will be completed, and an award will be rendered in writing,
within ninety (90) days after commencement of the hearing. The arbitration will
be conducted and all evidence will be submitted to the arbitrators in the
English language. The award rendered in arbitration will be final and binding
and may be enforced in any court of competent jurisdiction. Unless the
arbitrator finds that exceptional circumstances require otherwise, the
arbitrator will include in the award the prevailing party's costs of arbitration
and reasonable attorneys' fees. The determination of the arbitrator shall be in
writing, signed by the arbitrator, served by certified or receipted overnight
mail, and such determination shall be binding on the Parties. The Parties are
free to pursue such legal remedies in connection with such determination as they
deem appropriate, subject to the jurisdiction and procedural provisions of this
Agreement.
9.16 Language and the Number of Copies. This Agreement is made in the
English language in two copies having equal legal force, and each Party retains
one copy. This Agreement may be executed in counterparts.
[signature page follows]
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SIGNATURE PAGE
TO
EXPLORATION AGREEMENT
Signatures of the Parties:
Terra Insight Corporation
By: /s/ Roman Rozenberg
----------------------
Name: Roman Rozenberg
Title: Chief Executive Officer
Calik Enerji Sanayi ve Ticaret A.S.
By: /s/ Aziz Karaman
----------------------
Name: Aziz Karaman
Title: Director
Oil and Gas
SCHEDULE OF EXHIBITS
EXHIBIT 1 PROJECT SITE
EXHIBIT 2 LICENSES
EXHIBIT 3 DESCRIPTION OF SERVICES
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EXHIBIT 1
PROJECT SITES
The Project Site is defined as: [definition of area]
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EXHIBIT 2
LICENSES
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EXHIBIT 3
DESCRIPTION OF SERVICES
Services:
The service given by TIC shall be furnished by the available data which will be
provided by CALIK with respect to the Area, in order to detect traps with fluid
(oil).
SERVICES
A: INITIAL
1. Collection, study and analysis of basic geological-geophysical materials.
2. Selection and preliminary processing of remote sensing data of the License
Area.
3. Subject-matters processing of remote sensing data within the program
package of ScanEx NeRIS.
4. Carrying out the interpretation of remote se
5. Study of tectonic zones.
6. Interconnecting of all data gained and carrying out the prognosis
regarding promising structures with paying the attention to potential oil
and gas bearing areas and traps.
7. Working up the legend and notation conventions concerning materials for
report.
Report Materials
1. Maps/diagrams reflecting the results of interpretations of remote sensing
data on a scale of 1: 50 000 or 1: 25 000 depending on the ranges and
dimensions of structures.
2. Tectonic diagram compiled in accordance to the results of the
interpretation.
3. Layout of the location of prognosed potential oil bearing field(s), i.e.,
boundaries of traps with depth and thickness. 4. Proposal for the
recommendation of the first two (2) exploration wells.
B. SECONDARY
In case Calik decides to conduct 2D seismic activities in the License Area based
on the Reporting made by TIC during initial term as indicated above; TIC will
repeat the same study and reporting after the completion of the processing of
the seismic data.
TIC's report shall identify those locations of the Project Site which will be
the base on further exploration in the project area for a merit exploration and
development as a result of TIC determining in good faith that a reasonably
satisfactory level of resources may be present.
TIC hereby undertakes that the either the Initial or the Secondary Services will
be completed within [*] weeks following the receipt of the Notice to proceed
from Calik.
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