EXHIBIT 10.29
PURCHASE AND SALE AGREEMENT
BETWEEN:
XTRA OIL & GAS LTD.
- AND -
TRISTAR OIL & GAS PARTNERSHIP
Dated: September 22, 2006
PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT made as of September 22, 2006
BETWEEN:
XTRA OIL & GAS LTD., a corporation, having an office in Toronto,
Ontario (hereinafter referred to as "VENDOR")
- and -
TRISTAR OIL & GAS PARTNERSHIP, a general partnership, having an
office in Calgary, Alberta, by its managing partner TRISTAR OIL &
GAS LTD. (hereinafter referred to as "PURCHASER")
WHEREAS Vendor wishes to sell and Purchaser wishes to purchase the
Assets subject to and in accordance with the terms and conditions hereof;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the mutual covenants and agreements hereinafter set forth, the
Parties have agreed as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, including the recitals and the Schedules, unless the
context otherwise requires:
(a) "ABANDONMENT AND RECLAMATION OBLIGATIONS" means all
obligations to abandon the Wells and restore and reclaim the
surface sites thereof, to decommission and remove all
facilities and equipment comprising the Tangibles and restore
and reclaim the surface sites thereof and to reclaim and
restore the lands to which the Surface Rights relate;
(b) "AFES" means authorities for expenditure, cash calls or mail
ballots issued under operating agreements relating to any of
the Assets authorizing expenditures and similar items;
(c) "THIS AGREEMENT", "HEREIN", "HERETO", "HEREOF" and similar
expressions refer to this Purchase and Sale Agreement;
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(d) "AGREEMENT DEFAULT" means a misrepresentation or breach of
warranty or covenant made by a Party or the failure of a party
to perform or observe any of the covenants or agreements to be
performed by such Party under this Agreement or any
certificate or instrument delivered in connection herewith;
(e) "APPLICABLE LAW" means any law, statute, regulation, rule,
ordinance, order or directive enacted or issued by any
Governmental Authority having jurisdiction over Vendor,
Purchaser or the Assets, and includes, without limitation, the
provisions and conditions of any permit, license or other
governmental or regulatory authorization in respect of the
Assets or any of them;
(f) "ASSETS" means the Vendor's entire right, title, estate and
interest (whether contingent, legal or beneficial) in and to
the Petroleum and Natural Gas Rights, the Tangibles and the
Miscellaneous Interests;
(g) "BASE PRICE" has the meaning specified in section 2.2;
(h) "BUSINESS DAY" means any day other than a Saturday, Sunday or
statutory holiday in the Province of Alberta;
(i) "CLOSING" means the transfer of beneficial ownership of the
Assets from Vendor to Purchaser and the completion of other
matters incidental thereto as provided for herein;
(j) "CLOSING DATE" means October 13, 2006, or such other date as
may be agreed upon in writing by Vendor and Purchaser;
(k) "CLOSING TIME" means 2:00 p.m., Calgary time on the Closing
Date, or such other time as may be agreed upon in writing by
Vendor and Purchaser;
(l) "DATA" means all records, data and information directly
related to the Assets, including well files, lease files,
agreement files and production records, including but not
limited to, all geological, geophysical and geochemical data,
including the Seismic related to the assets, and all
interpretations related thereto;
(m) "ENCANA FARMOUT AGREEMENT" means the SE Saskatchewan Joint
Venture dated December 13, 2004 among Caribgold Minerals Ltd.,
EnCana Corporation & EnCana Oil & Gas Partnership, as amended;
(n) "EFFECTIVE TIME" means 8:00 a.m., Calgary time, on the 1st day
of September, 2006;
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(o) "ENVIRONMENTAL LAW" means any Applicable Law relating to:
(i) protection of the environment, persons or the public
welfare from actual or potential exposure (or the
effects of exposure) to any actual or potential
release, discharge, spill or emission (whether past
or present); or
(ii) the manufacture, processing, production, gathering,
transportation, use, treatment, storage or disposal
of any chemical, raw material, pollutant, contaminant
or toxic, corrosive or hazardous substance,
by-product or waste;
(p) "ENVIRONMENTAL LIABILITIES" means all liabilities pertaining
to the Assets in respect of the environment, whether or not
caused by a breach of any Environmental Law and whether or not
resulting from operations conducted with respect to the
Assets, including, without limitation, liabilities related to:
(i) the transportation, storage, use or disposal of toxic
or hazardous substances or hazardous, dangerous or
non-dangerous oilfield substances or waste;
(ii) the release, spill, escape or emission of toxic or
hazardous substances;
(iii) any other pollution or contamination of the surface,
substrate, soil, air, ground water, surface water or
marine environments;
(iv) damages and losses suffered by Third Parties as a
result of the occurrences in paragraphs (i) to (iii)
of this section; and
(v) any obligations imposed by an Environmental Law to
protect the environment or to rectify environmental
problems;
(q) "FACILITIES" means the facilities described in Schedule "C";
(r) "GST" means the goods and services tax payable pursuant to the
GST Legislation;
(s) "GST LEGISLATION" means the Excise Tax Act, 1985 R.S.C., c.
E-15, as amended, and the regulations thereunder;
(t) "GENERAL CONVEYANCE" means the general conveyance in the form
of Schedule "F";
(u) "GOVERNMENTAL AUTHORITY" means any federal, provincial or
local government or governmental regulatory body and any of
their respective boards, subdivisions, agencies,
instrumentalities, authorities or tribunals;
(v) "INTERIM PERIOD" means the period from and including the
Effective Time up to but not including the Closing Date;
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(w) "LANDS" means the Vendor's entire interest in and to those
lands within the areas outlined in red on the land plat
attached hereto as Schedule "A-1" including, without
limitation, the lands set forth and described in Schedule "A"
and any lands pooled or unitized therewith, including the
Petroleum Substances within, upon or under such lands, subject
to the restrictions and exclusions set forth in the Leases as
to Petroleum Substances and geological formations;
(x) "LAND SCHEDULE" means Schedule "A";
(y) "LEASES" means the leases, options to lease, licenses, permits
and similar documents of title described in the Land Schedule
under the heading "Leases" by virtue of which the holder
thereof is entitled to drill for, win, take, own or remove
Petroleum Substances within, upon or under the Lands or by
virtue of which the holder thereof is deemed to be entitled to
a share of Petroleum Substances removed from the Lands or any
lands with which the Lands are pooled or unitized and
includes, if applicable, all renewals and extensions of such
documents and documents issued in substitution therefor;
(z) "LOSSES" means, in respect of a Party and in relation to a
matter, all losses, costs, claims, expenses, liabilities and
damages which such Party suffers, sustains, pays or incurs in
connection with such matter and includes taxes (other than
refundable taxes), reasonable costs of legal counsel (on a
full indemnity basis) and other consultants and reasonable
costs of investigating and defending claims arising from such
matter, regardless of whether such claims are sustained but
does not include consequential or indirect losses or loss of
profits;
(aa) "MISCELLANEOUS INTERESTS" means, subject to any and all
limitations and exclusions provided for in this definition,
Vendor's interests in all property, assets, interests and
rights (other than the Petroleum and Natural Gas Rights and
the Tangibles) directly related to the Petroleum and Natural
Gas Rights or the Tangibles, including, without limitation,
any and all of the following:
(i) contracts and agreements directly related to the
Petroleum and Natural Gas Rights or the Tangibles
including, without limitation, the Title and
Operating Documents;
(ii) the Surface Rights;
(iii) the Data;
(iv) the Wells, including well bores and casing; and
(v) proceeds of property damage insurance in respect of
events occurring between the Effective Time and the
Closing Date;
but not including Petroleum Substances in tanks or in storage
at the Effective Time;
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(bb) "PARTIES" means the parties to this Agreement and "PARTY"
means any one of them;
(cc) "PERMITTED ENCUMBRANCES" means:
(i) liens for taxes, assessments and governmental charges
which are not due;
(ii) liens incurred or created in the ordinary course of
business as security in favour of the person who is
conducting the development or operation of the
property to which such liens relate for Vendor's
proportionate share of costs and expenses of such
development or operation which are not due at the
Closing Date;
(iii) builders' liens, warehousemen's liens, materialmen's
liens, processor's liens and similar liens in respect
of costs related to the Assets incurred in the
ordinary course of the oil and gas business which are
not due at the Closing Date;
(iv) easements, rights of way, servitudes and other
similar rights in land (including, without
limitation, rights of way and servitudes for roads,
railways, sewers, drains, gas and oil pipelines, gas
and water mains and electric light, power, telephone,
telegraph and cable television conduits, poles, wires
and cables);
(v) the right reserved to or vested in any municipality
or government or other public authority by the terms
of any lease, license, franchise, grant or permit or
by any statutory provision, to terminate any such
lease, license, franchise, grant or permit or to
require annual or other periodic payments as a
condition of the continuance thereof;
(vi) rights of general application reserved to or vested
in any Governmental Authority to levy taxes on
Petroleum Substances or any of them or the income
therefrom, and governmental requirements and
limitations of general application as to production
rates or operations;
(vii) royalties, liens, adverse claims, penalties,
reductions in interests and other encumbrances
disclosed in the Land Schedule;
(viii) the reservations, limitations, provisos and
conditions in any grants or transfers from the Crown
of any of the Lands or interests therein and
statutory exceptions to title;
(ix) the Sale, Processing and Transportation Agreements
and agreements respecting the operation of wells by
contract field operators which are either terminable
on not greater than thirty (30) day's notice (without
an early termination penalty or other cost) or
identified in Schedule "D";
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(x) provisions for penalties and forfeitures under
agreements as a consequence of non-participation in
operations, provided that any such penalties or
forfeitures which apply to the Assets as a result of
Vendor's election or deemed election not to
participate in a particular operation prior to date
hereof shall be identified in Schedule "A";
(xi) the terms and conditions of the Title and Operating
Documents provided that the following items must be
identified in a Schedule hereto to qualify as a
Permitted Encumbrance: (A) any overriding royalties,
net profits interests or other encumbrances
applicable to the Assets; (B) any potential reduction
of Vendor's interest in the Assets because of a
payout conversion; (C) any Rights of First Refusal;
and (D) any penalty or forfeiture that applies to the
Assets because of Vendor's election not to
participate in a particular operation; and
(xii) liens granted in the ordinary course of business to a
public utility, municipality, or Governmental
Authority with respect to operations pertaining to
any of the Assets;
(dd) "PETROLEUM AND NATURAL GAS RIGHTS" "PETROLEUM AND NATURAL GAS
RIGHTS" means the interests of Vendor in respect of the Leases
to the extent they apply to the Lands, including, without
limitation, any existing contractual right of the Vendor to
earn an interest in the Lands under a farmin, or other similar
arrangements, any net carried interest and any overriding
royalty, net profits interest or other encumbrance accruing to
the Vendor on the Lands including, without limitation, those
described in Schedule "A";
(ee) "PETROLEUM SUBSTANCES" means crude oil, petroleum, natural
gas, natural gas liquids, natural gas derived from coal, and
other related hydrocarbons (except coal) and any and all other
substances (including sulphur), whether liquid, solid or
gaseous and whether hydrocarbons or not, produced in
association therewith;
(ff) "PRIME RATE" means the rate of interest, expressed as a rate
per annum, designated by the main branch in Calgary of the
Bank of Montreal as the reference rate used by it to determine
rates of interest charged by it on Canadian dollar commercial
loans made in Canada and which is announced by such bank, from
time to time, as its prime rate, provided that whenever such
bank announces a change in such reference rate, the "Prime
Rate" shall correspondingly change effective on the date the
change in such reference rate is effective;
(gg) "PURCHASE PRICE" has the meaning ascribed thereto in section
2.2;
(hh) "PURCHASER" means TriStar Oil & Gas Partnership;
(ii) "RIGHTS OF FIRST REFUSAL" or "ROFR" means a right of first
refusal, preemptive right of purchase or similar right whereby
a Third Party has the right to acquire or
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purchase an interest in or portion of the Assets as a
consequence of Vendor having agreed to sell the Assets to
Purchaser in accordance with this Agreement;
(jj) "SALE, PROCESSING AND TRANSPORTATION AGREEMENTS" means
agreements for the sale of Petroleum Substances produced from
the Lands or lands pooled or unitized therewith and agreements
providing for the gathering, transportation, compression,
processing, treatment or storage of Petroleum Substances
produced from the Lands or lands pooled or unitized therewith;
(kk) "SEISMIC" means all records, books, documents, licences,
reports and data and all sale, trading and reproduction rights
associated with the Lands and the seismic programs, line or
lines set out in Schedule "G" hereto, including without
limitation:
(i) all permanent records of basic field data including,
but not limited to, any and all microfilm or paper
copies of seismic driller's reports, monitor records,
observer's reports and survey notes and any and all
copies of magnetic field tapes or conversions
thereof;
(ii) all permanent records of the processed field data
including, but not limited to, any and all microfilm
or paper copies of shot point maps, pre- and
post-stacked record sections including amplitude,
phase and structural displays, post-stack data
manipulations including filters, migrations and
wavelet enhancements, and any and all copies of final
stacked tapes and any manipulations and conversions
thereof;
(iii) in the case of 3D seismic, in addition to the
foregoing, all permanent records or bin locations,
bin fold, static corrections, surface elevations and
any other relevant information;
(iv) including, without limitation, access to view any
trade seismic data in possession of Vendor within the
area outlined in red on Schedule "A-1"; and
(v) any and all interpretations of the foregoing;
(ll) "SPECIFIC CONVEYANCES" means all conveyances, assignments,
transfers, novations and other documents or instruments that
are reasonably required or desirable, in accordance with
normal oil and gas industry practices, to convey, assign and
transfer the Assets to Purchaser and to novate Purchaser into
the Title and Operating Documents in the place and stead of
Vendor with respect to the Assets;
(mm) "SURFACE RIGHTS" means all rights to enter upon, use or occupy
the surface of lands (including, but not limited to, the
Lands) which are used or held for use in connection with the
Petroleum and Natural Gas Rights or the Tangibles, including
rights to enter upon and occupy the surface of lands on which
the Tangibles and the Wells are located and rights to use the
surface of lands to gain access thereto;
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(nn) "TAKE OR PAY OBLIGATIONS" means take or pay and similar
obligations related to the Assets arising after the Effective
Time as a result of payments made prior to the Effective Time
by or on behalf of buyers of Petroleum Substances in lieu of
or in satisfaction of their obligations to buy Petroleum
Substances or as prepayment of the price to be paid for
Petroleum Substances;
(oo) "TANGIBLES" means: (i) the interest of Vendor in the
Facilities listed in Schedule "C" (subject to the noted
exceptions set forth therein); and (ii) the interests of
Vendor which are directly related to the Petroleum and Natural
Gas Rights in all other tangible depreciable property and
assets used or intended to be used in producing, processing,
gathering, treating, measuring or injecting Petroleum
Substances or any of them from the Lands or lands pooled or
unitized therewith or in connection with water injection or
removal operations that pertain to the Petroleum and Natural
Gas Rights, including, without limitation, gas plants, oil
batteries, production equipment, pipelines, pipeline
connections, meters, dehydrators, motors, compressors,
treaters, dehydrators, scrubbers, separators, pumps, tanks,
boilers and communication equipment;
(pp) "THIRD PARTY" means any partnership, corporation, trust,
unincorporated organization, union, government, governmental
department or agency, individual or any heir, executor,
administrator or other legal representative of an individual
other than a Party;
(qq) "TITLE AND OPERATING DOCUMENTS" means (i) the Leases (ii) all
agreements relating to the ownership or operation of the
Petroleum and Natural Gas Rights or the Tangibles or the
Surface Rights entered into in the normal course of business,
including, without limitation: the EnCana Farmout Agreement,
operating procedures; unit agreements and unit operating
agreements; agreements for the construction, ownership and
operation of gas plants, pipelines, gas gathering systems and
similar facilities; pooling agreements, royalty agreements,
farmin agreements, farmout agreements and participation
agreements; agreements respecting the gathering, measurement,
processing, compression or transportation of Petroleum
Substances; well operating contracts; and surface leases,
pipeline easements, road use agreements and other contracts
granting the right to use the surface of lands; and (iii) all
permits, licenses and approvals issued or granted by
Governmental Authorities pertaining to the ownership or
operation of the Petroleum and Natural Gas Rights or the
Tangibles or the gathering, processing, treatment, storage,
measurement, transportation or sale of the production of
Petroleum Substances from the Lands or lands pooled or
unitized therewith; and
(rr) "WELLS" means all producing, shut-in, abandoned, suspended,
capped, injection and disposal wells, located on the Lands or
lands pooled or unitized therewith, in which Vendor has an
interest, including, without limitation those set forth in
Schedule "B".
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1.2 ARTICLE, SECTION AND SCHEDULE REFERENCES
Except as otherwise expressly provided, a reference in this Agreement
to an "Article", "section", "subsection", "paragraph" or "Schedule" is
a reference to an article, section, subsection, paragraph or schedule
to this Agreement.
1.3 INTERPRETATION NOT AFFECTED BY HEADINGS
The headings in this Agreement are for convenience only and shall not
affect the construction or interpretation of this Agreement.
1.4 INCLUDED WORDS
When the context reasonably permits, words suggesting the singular
shall be construed as suggesting the plural and vice versa, and words
suggesting one gender shall be construed as suggesting other genders.
1.5 SCHEDULES
The following Schedules are attached to and form a part of this
Agreement:
Schedule "A" - Land Schedule
Schedule "A-1" - Land Plat
Schedule "B" - Wells
Schedule "C" - Facilities
Schedule "D" - Sale, Processing and Transportation Agreements
Schedule "E" - AFEs
Schedule "F" - General Conveyance
Schedule "G" - Seismic
Schedule "H" - Disclosure Schedule
Wherever any term or condition, express or implied, of such Schedules
conflicts or is at variance, with any term or condition in the body of
this Agreement, such term or condition in the body of this Agreement
shall prevail.
1.6 CURRENCY
All references to "$" or "Dollars" herein are references to Canadian
currency.
1.7 KNOWLEDGE OR AWARENESS
Where in this Agreement a representation or warranty is limited to the
knowledge or awareness of Vendor, such knowledge or awareness consists
of the actual knowledge or awareness, as the case may be, of the
current employees of Vendor at or above the supervisory level, after
reasonable inquiry. For the avoidance of doubt, knowledge or awareness
does not include the knowledge of any Third Party or constructive
knowledge.
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ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE
Vendor hereby agrees to sell the Assets to Purchaser and Purchaser
hereby agrees to purchase the Assets from Vendor, subject to and in
accordance with this Agreement.
2.2 PURCHASE PRICE
The purchase price to be paid by Purchaser to Vendor for the Assets
will be Three Hundred Fifty Thousand Dollars ($350,000.00) (the "BASE
PRICE") plus or minus (as applicable) the net amount of the adjustments
made pursuant to Article 4 (collectively, the "PURCHASE PRICE").
2.3 ALLOCATION OF PURCHASE PRICE
The Base Price shall be allocated among the Assets as follows:
To Petroleum and Natural Gas Rights: $ 280,000.00
To Tangibles: ...................... $ 69,990.00
To Miscellaneous Interests: ........ $ 10.00
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TOTAL .............................. $ 350,000.00
2.4 PAYMENT OF PURCHASE PRICE
The Purchase Price shall be paid by Purchaser to Vendor as follows:
(a) at Closing, Purchaser shall pay to Vendor by certified cheque,
bank draft or wire transfer the Base Price plus or minus (as
applicable) the adjustments to be made at Closing pursuant to
Article 4; and
(b) the adjustments made pursuant to Article 4 after Closing shall
be paid in accordance with the provisions of Article 4.
2.5 GST
The Purchase Price does not include GST. At Closing, Purchaser shall
pay to Vendor by certified cheque or bank draft an amount equal to the
statutory rate of GST of the portion of the Purchase Price allocated to
Tangibles pursuant to section 2.3 on account of the GST payable by
Purchaser in respect of its purchase of the Assets pursuant hereto.
Vendor shall remit such amount to the appropriate taxation authorities
in accordance with the GST Legislation. Purchaser shall be responsible
for the payment of any additional GST payable in respect of its
purchase of the Assets pursuant hereto and any interest and penalties
payable in respect of such additional GST and shall indemnify and save
harmless Vendor in respect thereof. Each Party represents that its
registration number for GST purposes is:
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Vendor - o
Purchaser - 806608949 RT0001
ARTICLE 3
CLOSING
3.1 PLACE OF CLOSING
Unless otherwise agreed to in writing by the Parties, Closing shall
take place at the Closing Time at the offices of Heenan Blaikie LLP
located at 1200, 425 - 1st Street SW, Calgary, Alberta.
3.2 EFFECTIVE TIME OF TRANSFER
The transfer and assignment of the Assets from Vendor to Purchaser
shall be effective as of the Effective Time; however, possession and
title to the Assets shall not pass to Purchaser until Closing, provided
Closing occurs.
3.3 DELIVERIES AT CLOSING
(a) At Closing, Vendor shall table the following:
(i) the General Conveyance fully executed by Vendor;
(ii) as many Specific Conveyances as may be reasonably
prepared prior to Closing fully executed by Vendor
(and in any particular case where this may not be
possible due to timing constraints an undertaking by
Vendor to provide the remaining Specific Conveyances
at the earliest possible date);
(iii) the releases and registerable discharges or no
interest letters referred to in subsection 5.1(i)
hereof;
(iv) the certificates described in section 5.1; and
(v) such other items as may be specifically required
hereunder or as may be reasonably requested by
Purchaser.
(b) At Closing, Purchaser shall table the following:
(i) the amounts payable at Closing on account of the
Purchase Price and GST in accordance with sections
2.4(a) and 2.5;
(ii) the certificates described in section 5.2; and
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(iii) such other items as may be specifically required
hereunder or as may be reasonably requested by
Vendor.
In addition, Purchaser will execute the General Conveyance and
the Specific Conveyances tabled by Vendor.
3.4 DELIVERY OF DATA
Vendor shall also deliver at Closing, or within a reasonable time
thereafter, to Purchaser original copies of the Data including the
Seismic.
3.5 SPECIFIC CONVEYANCES
Vendor shall use reasonable efforts to prepare at its cost and as
required in accordance with Applicable Law the Specific Conveyances
prior to Closing to convey the Assets to the Purchaser or its nominee.
None of the Specific Conveyances shall confer or impose upon a Party
any greater right or obligation than contemplated in this Agreement.
All Specific Conveyances that are prepared and circulated to Purchaser
in a reasonable time prior to the Closing Time shall be executed and
delivered by the Parties at Closing. Purchaser shall bear all costs to
register the Specific Conveyances and post all security as may be
required to cause the transfer of all licenses associated therewith to
be approved by all Governmental Authorities. Vendor shall circulate and
register all such Specific Conveyances that by their nature require
circulation or registration promptly after Closing.
ARTICLE 4
ADJUSTMENTS
4.1 COSTS AND REVENUES TO BE APPORTIONED
(a) Except as otherwise provided in this Agreement, all costs and
expenses relating to the Assets (including, without
limitation, maintenance, development, capital and operating
costs) and all revenues relating to the Assets (including,
without limitation, proceeds from the sale of production and
fees from processing, treating or transporting Petroleum
Substances on behalf of Third Parties) shall be apportioned as
of the Effective Time between Vendor and Purchaser on an
accrual basis in accordance with generally accepted accounting
principles, provided that:
(i) deposits made by Vendor relative to operations on the
Lands shall be returned to Vendor;
(ii) costs and expenses of work done, services provided
and goods supplied shall be deemed to accrue for the
purposes of this Article when the work is done or the
goods (other than inventory) or services are
provided, regardless of when such costs and expenses
become payable;
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(iii) no adjustment shall be made in respect of Alberta
Royalty Tax Credits or, except as otherwise provided
herein, Vendor's overhead;
(iv) where Vendor is the operator of any particular Asset,
Vendor will be entitled to all overhead recoveries
and operator's fees for the period up to the
Effective Time;
(v) revenues from the sale of Petroleum Substances will
be adjusted on the basis of the date the Petroleum
Substances are produced;
(vi) all rentals and similar payments in respect of the
Leases or Surface Rights comprised in the Assets and
all taxes (other than income taxes) levied with
respect to the Assets or operations in respect
thereof shall be apportioned between Vendor and
Purchaser on a per diem basis as of the Effective
Time; and
(vii) Petroleum Substances attributable to the Assets which
were produced, but not sold, as of the Effective Time
shall be retained by Vendor and Vendor shall be
responsible for all royalties or other encumbrances
thereon. Petroleum Substances will be deemed to be
sold on a first in, first out basis.
(b) Subject to the foregoing provisions of this section 4.1, for
the purposes of the Interim Period, all benefits and
obligations relating to the Assets, including revenue,
expenses, operating costs and expenses, capital costs, lease
rentals, royalty obligations and the proceeds from the sale of
production from the Lands, are to be received by or paid by
the Vendor and adjusted for on the interim statement of
adjustments or the final statement of adjustments and as
provided in subsection 4.2(c), in an amount equal to:
(i) the proceeds from the sale of production from the
Lands for the Interim Period, minus
(ii) all royalties and operating expenses for the Interim
Period, minus
(iii) those capital expenses for which Purchaser is
responsible for the Interim Period.
Vendor shall report all net revenue and pay all income tax on
the net revenue for the Interim Period.
4.2 ADJUSTMENTS TO ACCOUNT
(a) An interim accounting of the adjustments pursuant to section
4.1 shall be made at Closing, based on Vendor's good faith
estimate of the costs and expenses paid by Vendor prior to
Closing and the revenues received by Vendor prior to Closing.
Vendor and Purchaser shall cooperate in preparing such interim
accounting and Vendor shall provide a statement setting forth
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the adjustments to be made at Closing not later than four (4)
Business Days prior to Closing and shall assist Purchaser in
verifying the amounts set forth in such statement. A further
accounting of the adjustments pursuant to section 4.1 shall be
conducted within six (6) months following the Closing Date.
Additional adjustments will be made after such six (6) month
period as and when they are ascertained by the Parties,
provided that, subject to subsection (c) of this section, the
Parties shall not be obligated to make an adjustment more than
two (2) years after Closing unless such adjustment has been
specifically requested, by written notice, within such period.
All adjustments after Closing shall be settled by payment by
the Party required to make payment hereunder within thirty
(30) days of being notified of the determination of the amount
owing.
(b) During the two (2) year period following the Closing Date,
Purchaser may audit the books, records and accounts of Vendor
respecting the Assets, for the purpose of effecting
adjustments pursuant to this Article. Such audit shall be
conducted upon reasonable notice to Vendor at Vendor's offices
during Vendor's normal business hours, and shall be conducted
at the sole expense of Purchaser.
(c) Notwithstanding subsection 4.2(a), the Parties will be
required to make an adjustment pursuant to this Article 4 more
than two (2) years after Closing if:
(i) the adjustment arises from a Crown royalty audit
commenced prior to four (4) years after the end of
the calendar year in which Closing occurs and a
written request for the adjustment is given by one
Party to the other Party within one hundred and
twenty (120) days of the requesting Party's receipt
of the results of the audit; or
(ii) the adjustment arises from a joint venture audit
commenced prior to two (2) years after the end of the
calendar year in which Closing occurs and a written
request for the adjustment is given by one Party to
the other Party within one hundred and twenty (120)
days of the requesting Party's receipt of the results
of the audit.
(d) All adjustments provided for in this Article shall be
adjustments to the Purchase Price. An adjustment payable by a
Party after Closing pursuant to this section 4.2 which is not
paid within thirty (30) days of a written request for payment
from the other Party, shall bear interest at the Prime Rate
percent per annum payable by the paying Party to the other
Party from the end of such thirty (30) day period until the
adjustment is paid.
4.3 ARBITRATION OF DISPUTES
Either Party may, at any time, refer to arbitration a dispute between
the Parties respecting the requirement for or the amount of an
adjustment pursuant to the provisions of this Article 4.
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4.4 POST-CLOSING ACCOUNTING
(a) For a period of twenty-four (24) months after Closing, the
Parties shall provide reasonable assistance to each other in
the remittance or recoupment of any overpayment or
underpayment of royalties relating to the Assets.
(b) Vendor shall invoice all joint interest owners for all
billable costs attributable to the operations pertaining to
the Assets for which Vendor is the operator until the month
following the month in which Closing occurs. All subsequent
joint interest billings for such Assets shall be prepared and
distributed by Purchaser. The Parties shall provide reasonable
assistance to each other in the collection or recoupment of
any overpayment or underpayment of joint operations accounts
receivable.
4.5 DEPOSITS, CASH CALLS AND OPERATING FUNDS
The Assets do not include deposits made by Vendor which relate to the
Assets or cash call advances, operating fund payments or similar
advances made by Vendor to an operator of the Assets. Such amounts
shall, at the option of Vendor, either be returned to Vendor and (if
required) replaced by Purchaser or be transferred by Vendor to
Purchaser, in which event Purchaser shall reimburse the amount thereof
to Vendor.
ARTICLE 5
CONDITIONS OF CLOSING
5.1 PURCHASER'S CONDITIONS
The obligation of Purchaser to purchase the Assets pursuant hereto is
subject to the satisfaction at or prior to the Closing Date of the
following conditions, which are for the exclusive benefit of Purchaser
and may be waived by Purchaser:
(a) Representations and Warranties: The representations and
warranties of Vendor herein contained shall be true in all
material respects when made and as of the Closing Date and a
certificate of an officer of Vendor to that effect shall have
been delivered by Vendor to Purchaser at Closing;
(b) Obligations: All obligations of Vendor contained in this
Agreement to be performed prior to or at Closing shall have
been timely performed in all material respects and a
certificate of an officer of Vendor to that effect shall have
been delivered by Vendor to Purchaser at Closing;
(c) Approval of Transactions: Purchaser shall have obtained any
necessary approvals to complete the transactions contemplated
herein, from its boards of directors;
(d) No Adverse Damage: There shall be no physical damage to any of
the Tangibles from the date hereof to the Closing Date,
ordinary wear and tear excepted therefrom;
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(e) Delivery of Conveyance Documents: Vendor shall have delivered
to Purchaser the General Conveyance and those of the Specific
Conveyances prepared prior to Closing executed by Vendor and
those other documents and materials described in section
3.3(a)(iv) which are to be provided to Purchaser at Closing;
(f) Inspection of Assets: Purchaser and/or its agent shall have
been given the opportunity to complete an inspection of all
associated wellsites and equipment and to make environmental
and other assessments of the Assets to the reasonable
satisfaction of the Purchaser which condition shall be
satisfied or waived by Purchaser three (3) Business Days prior
to the Closing Date;
(g) Review of Records: Purchaser shall be permitted access to
review Vendor's records with respect to revenues received and
royalties and operating costs paid regarding the operation of
the Assets and confirming that same are as represented by
Vendor and are satisfactory to Purchaser, which condition
shall be satisfied or waived by Purchaser three (3) Business
Days prior to the Closing Date;
(h) Title Review: Purchaser shall be permitted access to review
Vendor's Title and Operating Documents with respect to the
Vendor's title to the Assets and confirming the Vendor's title
to the Assets is as represented by Vendor and are satisfactory
to Purchaser, which condition shall be satisfied or waived by
Purchaser three (3) Business Days prior to the Closing Date;
(i) Discharges: Vendor shall have delivered to Purchaser releases
and registrable discharges or no-interest letters from all
parties holding security interests in the Assets; and
(j) Concurrent Closing: Concurrent with the Closing as provided
for herein, Purchaser shall close the acquisition to purchase
from Ranger Canyon Energy Inc. its interest in the Assets (as
applicable).
If any of the foregoing conditions has not been complied with, or
waived by Purchaser at or before the Closing Date, Purchaser may,
terminate its obligations to purchase the Assets from Vendor by written
notice to Vendor and, in such event Purchaser and Vendor shall be
released and discharged from all obligations hereunder except as
provided in sections 5.3 and 5.4.
5.2 VENDOR'S CONDITIONS
The obligation of Vendor to sell the Assets pursuant hereto is subject
to the satisfaction at or prior to the Closing Date of the following
conditions, which are for the exclusive benefit of Vendor and may be
waived by Vendor:
(a) Representations and Warranties: The representations and
warranties of Purchaser herein contained shall be true in all
material respects when made and as of the Closing Date and a
certificate of an officer of Purchaser to that effect shall
have been delivered by Purchaser to Vendor at Closing;
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(b) Obligations: All obligations of Purchaser contained in this
Agreement to be performed prior to or at Closing shall have
been timely performed in all material respects and a
certificate of an officer of Purchaser to that effect shall
have been delivered by Purchaser to Vendor at Closing;
(c) Payment: All amounts to be paid by Purchaser to Vendor
pursuant hereto shall have been paid to Vendor by Purchaser in
accordance with and in the form stipulated in this Agreement;
and
(d) Delivery of Conveyance Documents: Purchaser shall have
executed and delivered to Vendor at least one copy of the
General Conveyance and those of the Specific Conveyances
tabled by Vendor at Closing, and delivered to the Vendor the
other documents and materials described in section 3.3(b).
If any of the foregoing conditions has not been complied with, or
waived by Vendor at or before the Closing Date, Vendor may, terminate
its obligations to sell the Assets to Purchaser by written notice to
Purchaser and, in such event Purchaser and Vendor shall be released and
discharged from all obligations hereunder except as provided in
sections 5.3 and 5.4.
5.3 EFFORTS TO FULFILL CONDITIONS PRECEDENT
Purchaser and Vendor shall proceed diligently and in good faith and use
all reasonable efforts to fulfill and assist in the fulfillment of the
conditions precedent. In furtherance of this intent, Vendor shall use
all reasonable efforts to ensure Purchaser has direct contact and
communication with and the cooperation of the operator of the Assets to
enable Purchaser to complete its due diligence review of the Assets.
5.4 FAILURE OF A CONDITION DUE TO A BREACH
If a condition set forth in section 5.1 or 5.2 is not satisfied as a
result of a breach by a Party of its obligations hereunder, subject to
section 2.5, such Party shall be liable to the other Party for the
other Party's Losses resulting from such breach whether it elects to
terminate its obligations to purchase or sell the Assets pursuant
hereto.
5.5 OFFICER'S CERTIFICATES GENERALLY
A certificate of an officer of a Party delivered pursuant hereto shall
be made by such officer on behalf of such Party and such officer shall
have no personal liability in respect thereof.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF VENDOR
The Vendor represents and warrants to Purchaser that:
(a) Standing: Vendor is, and at the Closing Date shall continue to
be a corporation, validly existing and in good standing under
the laws of Alberta and the jurisdictions in which the Assets
are located. Vendor has all the requisite power and authority
to sell, assign, transfer and convey the Assets to Purchaser
in accordance with this Agreement;
(b) No Conflicts: The consummation of the transaction contemplated
herein will not violate, nor be in conflict with, any
provision of any agreement or instrument to which Vendor is a
party or by which Vendor is bound or any judgment, decree,
order, law, statute, rule or regulation applicable to Vendor;
(c) Execution of Documents: This Agreement has been duly executed
and delivered by Vendor and all other documents (including the
General Conveyance and the Specific Conveyances) executed and
delivered pursuant hereto will be duly executed and delivered,
and this Agreement does, and such documents will, constitute
legal, valid and binding obligations of Vendor enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, preference, reorganization, moratorium and other
similar laws affecting creditors' rights generally and the
discretion of courts with respect to equitable or
discretionary remedies and defenses;
(d) Finders' Fees: Vendor has not incurred any obligation or
liability, contingent or otherwise, for brokers' or finders'
fees in respect of this transaction for which Purchaser shall
have any obligation or liability;
(e) No Authorizations: No authorization or approval or other
action by, and no notice to or filing with, any Governmental
Authority or regulatory body exercising jurisdiction over the
Assets or Vendor is required for the due execution, delivery
and performance by Vendor of this Agreement;
(f) Title: Except as expressly set forth in this Agreement, Vendor
does not warrant title to the Assets but Vendor does warrant
that Vendor has not done any act or thing whereby any of the
Assets may be cancelled or determined and, except for
Permitted Encumbrances, the title to the Assets is now and at
the Closing Time will be free and clear of all liens,
mortgages, royalties, encumbrances and adverse claims created
by, through or under Vendor or any affiliate of Vendor or of
which Vendor is aware;
(g) Quiet Enjoyment: Subject to the rents, covenants, conditions
and stipulations in the Leases and Permitted Encumbrances,
from and after Closing, Purchaser will be entitled to hold and
enjoy the interests in the Assets attributed to Vendor in the
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Schedules hereto for Purchaser's own use and benefit without
any interruption of or by Vendor or any Third Party claiming
by, through or under Vendor;
(h) No Lawsuits or Claims: There are no judgments and no claims,
proceedings, actions or lawsuits in existence, or, to the
Vendor's knowledge, threatened against or with respect to the
Assets or the interests of Vendor therein that would have a
material adverse affect on the aggregate value or operation of
the Assets, other than as disclosed in Schedule "H";
(i) No Breaches of Law: It has not received any written notice of
any violation of Applicable Law or any writ, injunction or
decree of any court or any Governmental Authority in relation
to the Assets which violation would have a material adverse
affect on the aggregate value or operation of the Assets or
which has not been remedied, other than as disclosed in
Schedule "H";
(j) No Defaults: It has received no written notice of the
occurrence of any act or omission whereby it is or would, with
notice or lapse of time or both, be in material default under
Applicable Law or the terms of any Lease, the Title and
Operating Documents or other agreement pertaining to its
Assets, where such a default would adversely impact the
Assets, or any of them, other than as disclosed in Schedule
"H";
(k) EnCana Farmout Agreement: In respect of the EnCana Farmout
Agreement, as of the date hereof and as of the Closing Date,
the Optionee shall have complied with all the terms and
conditions contained therein (including, without limitation,
all requirements and obligations to be performed by Optionee
during the Exploration Period) and as of the date hereof
Vendor has earned no less than six (6) gross sections of land
within one (1) of the Exploration Blocks and still retains all
rights and options to earn its interests in the two (2)
remaining Exploration Blocks, the one (1) Sub Exploration
Block and the ROFR Option Block. Capitalized terms used in
this section 6.1(k) and not otherwise defined herein, shall
have the meanings ascribed to such terms in the EnCana Farmout
Agreement;
(l) AFEs: Except as set forth in Schedule "E" to this Agreement,
there are no outstanding AFEs or other financial commitments,
which exceed $10,000, pursuant to which expenditures in
respect of the Assets other than normal operating costs are or
may be required after the Effective Time;
(m) Assessments: To Vendor's knowledge, all royalties, ad valorem,
property, production, severance and similar taxes and
assessments based on or measured by the Vendor's ownership of
the Assets or the production of Petroleum Substances from the
Lands or the receipt of proceeds therefrom payable by the
Vendor and that accrued prior to the Effective Time (including
all prior years) have been properly and fully paid and
discharged or will be so paid when due;
(n) No Reduction: The interests of the Vendor in the Assets are
not subject either to reduction by virtue of the conversion or
other alteration of the interest of any Third Party claiming
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by, through or under Vendor, or to reduction by the operation
of any penalty created by, through or under Vendor, except for
the Permitted Encumbrances or as disclosed in the Land
Schedule;
(o) Sale, Processing and Transportation Agreements: Except as set
forth in Schedule "D", Vendor is not a party to or bound by
any Sale, Processing or Transportation Agreements which cannot
be terminated without penalty on notice from Vendor of thirty
(30) days or less;
(p) Production Penalty: To the knowledge of the Vendor, none of
the Wells producing Petroleum Substances that are allocable to
the Assets are subject to any production penalty of any nature
including, without limitation, contractual penalties or
restrictions (other than those penalties imposed in the
ordinary course of the oil and gas industry by a governmental
authority), except as set forth in Schedule "A";
(q) Production Allowables: To the knowledge of the Vendor, none of
the Wells producing Petroleum Substances that are allocable to
the Assets have produced in excess of applicable government
established production allowables and the Vendor has not
received notice of nor is it aware of any change or proposed
change in the government established production allowables for
any of the Wells producing Petroleum Substances that are
allocable to the Assets that are not applicable generally in
the Province of Saskatchewan, except as set forth in Schedule
"H";
(r) Take or Pay: There are no Take or Pay Obligations related to
the Assets;
(s) Areas of Mutual Interest: Except as identified in Schedule
"A", there are no areas of mutual interest or areas of
exclusion applicable to the Assets that remains in effect as
of the Closing Date and the best of the Vendor's knowledge,
Vendor has fully complied with and has not breached any of the
terms of any such areas of mutual interest or areas of
exclusion in respect of the Assets;
(t) All Vendor's Assets: The Assets comprise all of the Vendor's
petroleum and natural gas rights in the Province of
Saskatchewan;
(u) Rights of First Refusal: Except as set forth in Schedule "A";
the Assets are not subject to any other Rights of First
Refusal and such Rights of First Refusal are not triggered by
the transactions contemplated herein;
(v) Offset Obligations: To the knowledge of the Vendor, and except
as set forth in Schedule "H", it has not received any notice
from or on behalf of, any lessor that a Lease is subject to an
offset obligation, including an unsatisfied obligation to
drill a well or surrender rights or an obligation to pay
compensatory royalties, nor is the Vendor aware or any such
existing obligation;
(w) Environmental Matters: Vendor has not received:
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(i) any orders or directives under any Environmental Law
which requires any work, repairs, construction or
capital expenditures with respect to the Assets which
have not been fully complied with in all material
respects;
(ii) any notice under any Environmental Law with respect
to a breach thereof related to the Assets from any
Third Party alleging any Environmental Liabilities
which have not been rectified or cured in all
material respects; and
(iii) to Vendor's knowledge, no particular circumstance
exists that may give rise to any of the foregoing;
(x) Residency: Vendor is not a non-resident of Canada within the
meaning of the Income Tax Act (Canada);
(y) Interests in Tangibles: The interests of Vendor in the
Facilities are as set forth in Schedule "C" and the interests
of Vendor in the Tangibles are beneficially owned by Vendor
free and clear of all security interests, encumbrances and
other third party claims and interests of any nature
whatsoever, except Permitted Encumbrances;
(z) Competition Act: The Vendor will comply with the Competition
Act (Canada) to the extent applicable to the transactions
herein; and
(aa) Operations: Where the Vendor is the operator of the Assets,
such Assets have been maintained and operated by the Vendor in
accordance with generally accepted oil and gas field practices
and, to the Vendor's knowledge, those Assets that are not
operated by the Vendor have been similarly maintained and
operated, except, in either case, as disclosed in Schedule
"H".
6.2 NEGATION OF OTHER REPRESENTATIONS AND WARRANTIES
(a) Vendor expressly negates any representations or warranties,
whether written or verbal, made by Vendor, its agents,
servants or employees except as expressly enumerated in
section 6.1(a) and in particular, without limiting the
generality of the foregoing, Vendor disclaims all liability
and responsibility for any such representation, warranty,
statement or information made or communicated (orally or in
writing) to Purchaser or any of its employees, agents,
consultants or representatives.
(b) The Purchaser acknowledges that the Assets will be purchased
on an "as is, where is" basis and, except for the
representations and warranties expressly enumerated in section
6.1, there are no collateral agreements, conditions,
representations or warranties of any nature whatsoever made by
Vendor, express or implied, arising at law, by statute or in
equity or otherwise with respect to the Assets and in
particular, without limiting the generality of the foregoing,
there are no collateral agreements, conditions,
representations or warranties made by Vendor, express or
implied, arising at law, by statute or in equity or otherwise
- 22 -
with respect to: (i) the quantity or quality of Petroleum
Substances in the Lands or lands pooled or unitized therewith
or the recoverability of Petroleum Substances from the Lands
or lands pooled or unitized therewith; (ii) the value of the
Assets or the revenues or cash flows from production from the
Lands; (iii) any engineering, geological or other
interpretations or economic evaluations of the Assets; (iv)
the rates of production of Petroleum Substances from the Lands
or lands pooled or unitized therewith; (v) the quality,
condition, fitness, merchantability or serviceability of the
Assets or (vi) the suitability of their use for any purpose.
Without restricting the generality of the foregoing, but
subject to section 6.1, Purchaser acknowledges that it has
made its own independent investigation, analysis, evaluation
and inspection of Assets and the state and condition thereof
and that it has relied solely on such investigation, analysis,
evaluation and inspection as to its assessment of the
condition, quantum and value of the Assets.
(c) Except with respect to the representations and warranties in
section 6.1, Purchaser forever releases and discharges Vendor
and its directors, officers, servants, agents and employees
from any claims and all liability (whether by contract, in
tort, by statute or otherwise howsoever) to Purchaser or
Purchaser's assigns and successors, as a result of the use or
reliance upon advice, information or materials pertaining to
the Assets which was delivered or made available to Purchaser
by Vendor or its directors, officers, servants, agents or
employees prior to or pursuant to this Agreement, including,
without limitation, any evaluations, projections, reports and
interpretive materials prepared by Vendor or otherwise in
Vendor's possession.
6.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Vendor that:
(a) Standing: It is a partnership, duly organized and validly
existing under the laws of the jurisdiction of its formation,
is authorized to carry on business in all jurisdictions in
which the Assets are located, and shall have prior to the
Closing Date, the requisite power and authority to purchase
and pay for its portion of the Assets in accordance with this
Agreement;
(b) No Conflicts: The consummation of the transaction contemplated
herein will not violate, nor be in conflict with, any
provision of any agreement or instrument to which Purchaser is
a party or by which Purchaser is bound or any judgment,
decree, order, law, statute, rule or regulation applicable to
it;
(c) Execution of Documents: Subject to Purchaser receiving
approval from the board of directors of its managing partner,
this Agreement has been duly executed and delivered by
Purchaser and all other documents (including the General
Conveyance and the Specific Conveyances) executed and
delivered by Purchaser pursuant hereto will be duly executed
and delivered, and this Agreement does, and such documents
will, constitute legal, valid and binding obligations of
Purchaser enforceable in accordance with their respective
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terms, subject to bankruptcy, insolvency, preference,
reorganization, moratorium and other similar laws affecting
creditors' rights generally and the discretion of the courts
with respect to equitable or discretionary remedies and
defenses;
(d) Finders' Fees: Purchaser has not incurred any liability,
contingent or otherwise, for brokers' or finders' fees in
respect of this transaction for which Vendor shall have any
obligation or liability;
(e) Investment Canada and Competition Act: Purchaser will comply
with the Investment Canada Act (Canada) and the Competition
Act (Canada) to the extent applicable to the transactions
herein;
(f) No Authorizations: Subject to Purchaser receiving approval by
its board of directors, no authorization or approval or other
action by, and no notice to or filing with, any Governmental
Authority or regulatory body exercising jurisdiction over the
Assets or over Purchaser is required for the due execution,
delivery and performance by Purchaser of this Agreement; and
(g) Qualification: Purchaser meets all qualification requirements
of all Governmental Authorities and under Applicable Law to
purchase, accept and hold the Assets.
6.4 SURVIVAL
Except as otherwise provided herein, all representations and warranties
contained in this Agreement on the part of each of the Parties shall
survive for a period of twelve (12) months from the Closing Date.
ARTICLE 7
INDEMNITIES FOR REPRESENTATIONS AND WARRANTIES
7.1 VENDOR'S INDEMNITIES FOR REPRESENTATIONS AND WARRANTIES
Subject to section 7.3, Vendor shall indemnify Purchaser, from and
against all of Purchaser's Losses relating to the Assets resulting from
the representations and warranties contained in section 6.1 being
breached or not being accurate.
7.2 PURCHASER'S INDEMNITIES FOR REPRESENTATIONS AND WARRANTIES
Subject to section 7.3, Purchaser shall indemnify Vendor from and
against all of Vendor's Losses resulting from the representations and
warranties contained in section 6.3 being breached or not being
accurate.
7.3 LIMITATION
No claim under this Article 7 shall be made or be enforceable by a
Party unless written notice of such claim, with reasonable particulars,
is given by such Party to the Party against whom the claim is made
within a period of twelve (12) months from the Closing Date. No claim
shall be made by a Party in respect of the representations and
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warranties made by the other Party in this Agreement except pursuant to
this Article 7. The maximum cumulative liability of Vendor to Purchaser
in respect of the indemnity in section 7.1 shall not exceed the Base
Price.
ARTICLE 8
INDEMNITIES
8.1 PURCHASER'S GENERAL INDEMNITY
Provided Closing has occurred, Purchaser shall:
(a) be liable to the Vendor for all its Losses; and in addition,
(b) indemnify and hold harmless Vendor and each of its directors,
officers, agents and employees from and against all Losses,
as a result of any matter attributable to the Assets and occurring or
accruing on or subsequent to the Effective Time, except any Losses of
Vendor insofar as they are caused by a breach of the Vendors
representations and warranties under section 6.1 or the gross
negligence or wilful misconduct of the Vendor, or any of its directors,
officers, agents or employees.
8.2 ENVIRONMENTAL MATTERS AND ABANDONMENT AND RECLAMATION OBLIGATIONS
Provided that Closing has occurred, Purchaser shall:
(a) be liable to the Vendor for all of its Losses; and, in
addition
(b) indemnify and hold harmless Vendor and each of its directors,
officers, agents and employees from and against all Losses
in respect of all Environmental Liabilities and all Abandonment and
Reclamation Obligations howsoever and by whomsoever caused and whether
they occur or arise in whole or in part prior to, on or subsequent to
the Effective Time. Purchaser shall not be entitled to exercise and
hereby waives any rights or remedies Purchaser may now or in the future
have against Vendor in respect of such Environmental Liabilities or the
Abandonment and Reclamation Obligations, whether such rights and
remedies are pursuant to the common law or statute or otherwise,
including without limitation, the right to name Vendor as a third party
to any action commenced by any Third Party against Purchaser. Nothing
in this section, however, will operate to limit any representation or
warranty made by the Vendor under subsection 6.1(w) with respect to the
environmental condition of the Assets or to affect the Purchaser's
right to make a claim against the Vendor for breach thereof, pursuant
to section 7.1, subject to section 6.4 and sections 7.3.
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8.3 VENDOR'S GENERAL INDEMNITY
Provided Closing has occurred, Vendor shall:
(a) be liable to the Purchaser for all of Purchaser's Losses; and
shall, in addition,
(b) indemnify and hold harmless Purchaser and each of its
directors, officers, agents and employees from and against all
Losses
as a direct result of any matter attributable to the Assets and
occurring or accruing prior to the Effective Time, except any Losses of
Purchaser insofar as they are caused by the gross negligence or wilful
misconduct of the Purchaser, or any of their respective directors,
officers, agents or employees.
ARTICLE 9
RIGHTS OF FIRST REFUSAL
9.1 RIGHT OF FIRST REFUSALS
It is the Parties' belief that there are no ROFRs that are applicable
to the transactions contemplated by this Agreement. Notwithstanding
this, the Parties agree that if contrary to their common understanding
and belief with respect to this issue, if any Third Party is able to
establish its entitlement to a ROFR with respect to any of the Assets,
or any interest therein, as a result of the completion of the
transactions provided for in this Agreement, and is able to enforce the
same, Purchaser shall comply with such ROFR.
ARTICLE 10
MAINTENANCE OF ASSETS
10.1 MAINTENANCE OF ASSETS PRIOR TO CLOSING
From the date hereof until the Closing Date, Vendor shall, to the
extent that the nature of its interest permits, and subject to the
Title and Operating Documents and any other agreements and documents to
which the Assets are subject:
(a) operate and maintain the Assets in a proper and prudent manner
in accordance with good oil and gas industry practices and in
material compliance with all Applicable Law;
(b) maintain adequate insurance in accordance with good oil and
gas industry practices to cover the risks associated with the
Assets and the operations thereof;
(c) pay or cause to be paid all costs and expenses relating to the
Assets which become due from the date hereof to the Closing
Date; and
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(d) perform and comply with all covenants and conditions contained
in the Title and Operating Documents and any other agreements
and documents to which the Assets are subject,
provided that where Vendor is not the operator, Vendor shall be
obligated to do only that which a prudent non-operator would be
expected to do in similar circumstances in accordance with accepted
industry practices.
10.2 CONSENT OF PURCHASER
Notwithstanding section 10.1, from the date hereof until the Closing
Date, Vendor shall not, without the written consent of Purchaser, which
consent shall not be unreasonably withheld by Purchaser and which, if
provided, will be provided in a timely manner:
(a) make any commitment or propose, initiate or authorize any
capital expenditure with respect to the Assets of which
Vendor's share is in excess of $10,000, except in case of an
emergency or in respect of amounts which Vendor is committed
to expend or is deemed to authorize without its specific
authorization or approval;
(b) surrender or abandon any of the Assets;
(c) amend or terminate any Title and Operating Document or enter
into any new agreement or commitment relating to the Assets;
or
(d) sell, encumber or otherwise dispose of any of the Assets or
any part or portion thereof except sales of Petroleum
Substances in the normal course of business.
10.3 FOLLOWING CLOSING
(a) Following Closing, Vendor shall hold its title to the Assets
in trust for Purchaser, as bare legal trustee, until all
necessary Specific Conveyances including notifications,
registrations and other steps required to transfer such title
to Purchaser have been completed;
(b) From the date hereof, Vendor shall represent Purchaser in all
matters arising under a Title and Operating Document until
Purchaser is substituted as a party thereto in the place of
Vendor, whether by novation, notice of assignment or otherwise
and, in furtherance thereof:
(i) all payments relating to the Assets received by
Vendor following Closing pursuant to the Title and
Operating Document, other than those to which Vendor
is entitled under Article 4, shall be received and
held by Vendor in trust for Purchaser and Vendor
shall promptly remit such amounts to Purchaser;
(ii) Vendor shall forward all statements, notices and
other information received by it pursuant to such
Title and Operating Document that pertain to the
Assets to Purchaser (including, without limitation,
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any independent operation notices and any potential
acquisitions pursuant to any active areas of mutual
interest in respect of the Assets) promptly following
their receipt by Vendor; and
(iii) Vendor shall forward to other parties to the Title
and Operating Document such notices and elections
pursuant to such Title and Operating Document
pertaining to the Assets as Purchaser may reasonably
request (including, without limitation, any elections
made by Purchaser in respect of any independent
operation notices and any potential acquisitions
pursuant to any active areas of mutual interest in
respect of the Assets);
(c) Purchaser shall indemnify and save harmless Vendor from and
against all of Vendor's Losses arising as a consequence of the
provisions of subsection 10.3(a) and (b) hereof, except to the
extent caused by the gross negligence or wilful misconduct of
Vendor or its servants, agents or employees and except for
Vendor's overhead and general administrative costs. Acts or
omissions taken by Vendor or its servants or agents with the
approval of Purchaser shall not constitute gross negligence or
wilful misconduct for purposes of this subsection.
10.4 TRANSFER OF OPERATORSHIP
Purchaser acknowledges that Vendor may not be able to transfer
operatorship of any of the Assets to Purchaser at or after Closing.
Vendor covenants with Purchaser that Vendor shall do such commercially
reasonable things as Purchaser may request in order to obtain the
appropriate consents and approvals for the assignment and transfer to
Purchaser of operatorship of those of the Assets which Vendor currently
operates.
ARTICLE 11
ARBITRATION
11.1 GENERAL ARBITRATION PROVISIONS
Any disagreement between the Parties shall be referred to arbitration
before a single arbitrator. Any such arbitration, including the
selection of the arbitrator, shall be governed by the Arbitration Act
(Alberta). The decision of any such arbitrator shall be final and
binding on the Parties and the costs and fees relating thereto shall be
borne and paid in the manner the arbitrator determines to be fair and
equitable.
ARTICLE 12
GENERAL
12.1 FURTHER ASSURANCES
Each Party will, from time to time and at all times after Closing,
without further consideration, do such further acts and deliver all
such further assurances, deeds and documents as shall be reasonably
required in order to fully perform and carry out the terms of this
Agreement.
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12.2 NO MERGER
The covenants, representations, warranties and indemnities contained in
this Agreement shall survive Closing and shall not merge in any
assignments, conveyances, transfers or other documents executed and
delivered at or after Closing, notwithstanding any rule of law, equity
or statute to the contrary and such rules are hereby waived.
12.3 ENTIRE AGREEMENT
The provisions contained in any and all documents and agreements
collateral hereto shall at all times be read subject to the provisions
of this Agreement and, in the event of conflict, the provisions of this
Agreement shall prevail. This Agreement supersedes all other
agreements, documents, writings and verbal understanding among the
Parties relating to the subject matter hereof and expresses the entire
agreement of the Parties with respect to the subject matter hereof.
12.4 GOVERNING LAW
This Agreement shall be subject to and interpreted, construed and
enforced in accordance with the laws of the Province of Alberta and the
laws of Canada applicable therein and shall be treated as a contract
made in the Province of Alberta. The Parties irrevocably attorn and
submit to the jurisdiction of the courts of the Province of Alberta and
courts of appeal therefrom in respect of all matters arising out of
this Agreement.
12.5 ENUREMENT
This Agreement may not be assigned by a Party without the prior written
consent of the other Party, which consent may be unreasonably and
arbitrarily withheld. This Agreement shall be binding upon and shall
enure to the benefit of the Parties and their respective
administrators, trustees, receivers, successors and permitted assigns.
12.6 TIME OF ESSENCE
Time shall be of the essence in this Agreement.
12.7 NOTICES
The addresses and fax number of each Party for notices shall be as
follows:
Vendor: Xtra Oil & Gas Ltd.
6 Kersdale Avenue
Toronto ON M6M 1C8
Attention: Kiomi Mori, Secretary-Treasurer
Fax: (416) 981-3055
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Purchaser: TriStar Oil & Gas Partnership
800, 350 - 7th Avenue SW
Calgary, Alberta
T2P 3N9
Attention: Vice-President, Land
Fax: (403) 218-6075
Any notice, communication or statement (a "NOTICE") required, permitted
or contemplated hereunder shall be in writing and shall be delivered as
follows:
(a) by delivery to a Party between 8:00 a.m. and 4:00 p.m. on a
Business Day at the address of such Party for notices, in
which case the notice shall be deemed to have been received by
that Party when it is delivered;
(b) by fax to a Party to the fax number of such Party for notices,
in which case, if the notice was faxed prior to 4:00 p.m. on a
Business Day the notice shall be deemed to have been received
by that Party when it was faxed and if it is faxed on a day
which is not a Business Day or is faxed after 4:00 p.m. on a
Business Day, it shall be deemed to have been received on the
next following Business Day; or
(c) except in the event of an actual or threatened postal strike
or other labour disruption that may affect mail service, by
first class registered postage prepaid mail to a Party at the
address of such Party for notices, in which case the notice
shall be deemed to have been received by that Party on the
fifth (5th) Business Day following the date of mailing.
A Party may from time to time change its address for service or its fax
number for service by giving written notice of such change to the other
Party.
12.8 INVALIDITY OF PROVISIONS
In case any of the provisions of this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining, provisions contained herein shall not
in any way be affected or impaired thereby.
12.9 WAIVER
No waiver by any Party of any breach (whether actual or anticipated) of
any of the terms, conditions, representations or warranties contained
herein shall take effect or be binding upon that Party unless the
waiver is expressed in writing under the authority of that Party. Any
waiver so given shall extend only to the particular breach so waived
and shall not limit or affect any rights with respect to any other or
future breach.
12.10 REMEDIES GENERALLY
No failure on the part of any Party in exercising any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or
- 30 -
partial exercise of any such right or remedy preclude any other or
further exercise thereof or the exercise of any other right or remedy
in law or in equity or by statute or otherwise conferred.
12.11 AMENDMENT
This Agreement shall not be varied in its terms or amended by oral
agreement or by representations or otherwise other than by an
instrument in writing dated subsequent to the date hereof, executed by
a duly authorized representative of each Party.
12.12 POST-CLOSING INFORMATION AND ACCESS
Notwithstanding, any other provision in this Agreement, if, pursuant to
applicable securities legislation at any time within three (3) years
from the date hereof, the Purchaser requires audited operating
statements for the Assets or other documentation required under
applicable securities legislation including without limitation,
National Instrument 41-101 or National Instrument 41-501, as
applicable, for a period during which the Assets were owned by Vendor,
Vendor shall, in a timely manner (i) provide Purchaser with any
applicable material in its possession or under its control, and, if
necessary, (ii) provide access to its records to an independent
auditing firm selected by the Purchaser for purposes of preparing such
statements, at the Purchaser's sole cost and expense. The Purchaser
shall cause the audit to be carried out so as to cause a minimum of
inconvenience to the business and operations of Vendor. If the
independent auditors require the assistance of Vendor's personnel to
find, collect or interpret the necessary information from Vendor's
records, Vendor shall use reasonable efforts to cause such assistance
to be provided and the Purchaser shall reimburse Vendor for the
reasonable costs associated with its personnel providing such
assistance. Such audit access shall be requested and conducted solely
for the purposes of complying with applicable securities legislation
and for no other purpose. In no event will the obligations of Vendor
hereunder be interpreted to expand or extend the representations and
warranties given by Vendor in this Agreement.
12.13 PUBLIC ANNOUNCEMENTS
Prior to Closing, no Party shall release any information concerning
this Agreement and the transactions herein provided for without the
prior written consent of the other Party, which consent shall not be
unreasonably withheld. Nothing contained herein shall prevent a Party
at any time from furnishing information (i) to any Governmental
Authority or to the public if required by Applicable Law, provided that
the Parties shall advise each other in advance of any public statement
which they propose to make; or (ii) in connection with obtaining
consents or complying with Rights of First Refusal.
12.14 COUNTERPART EXECUTION
This Agreement may be executed in counterpart and by facsimile and
other electronic means and all such executed counterparts together
shall constitute one agreement.
- 31 -
12.15 AMENDMENTS TO SCHEDULES
The Parties agree and acknowledge that the Schedules attached hereto
represent the best reflection of the Parties understanding of the
constituent respective information for each Schedule at the date of the
execution of this Agreement, however the Parties will work diligently
together to finalize each such Schedule prior to the Closing Date in
accordance with section 12.11.
IN WITNESS WHEREOF, the Parties have executed this Agreement, effective
as of the day and year first above written.
XTRA OIL & GAS LTD. TRISTAR OIL & GAS PARTNERSHIP, by its
managing PARTNER, TRISTAR OIL & GAS LTD.
Per: /s/ WILLIAM EDWARD MCKECHNIE Per:
-------------------------------- --------------------------------
WILLIAM EDWARD MCKECHNIE
President and Director
Per: /s/ REBECCA KIOMI MORI Per:
-------------------------------- --------------------------------
REBECCA KIOMI MORI
Secretary-Treasurer and Director
- 32 -
SCHEDULE "A" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
LAND SCHEDULE
This Schedule consists of _______ pages, including this page
- 33 -
SCHEDULE "A-1" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
LAND PLAT
This Schedule consists of 2 pages, including this page
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SCHEDULE "B" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
WELLS
This Schedule consists of _______ pages, including this page
- 35 -
SCHEDULE "C" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
FACILITIES
- 36 -
SCHEDULE "D" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
SALE, PROCESSING AND TRANSPORTATION AGREEMENTS
- 37 -
SCHEDULE "E" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
AFES
- 38 -
SCHEDULE "F" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
GENERAL CONVEYANCE
This Schedule consists of 3 pages, including this page
- 39 -
GENERAL CONVEYANCE
------------------
This Agreement made this o day of o, 200o,
BETWEEN:
XTRA OIL & GAS LTD. (hereinafter referred to as "VENDOR")
- and -
TRISTAR OIL & GAS PARTNERSHIP (hereinafter collectively
referred to as "PURCHASER")
WHEREAS Vendor has agreed to sell and convey the Assets to Purchaser and
Purchaser has agreed to purchase and receive the Assets from Vendor;
NOW THEREFORE for the consideration provided in the Purchase Agreement and in
consideration of the premises hereto and the covenants and agreements
hereinafter set forth and contained, the parties hereto covenant and agree as
follows:
1. DEFINITIONS
In this General Conveyance including the premises hereto, "Purchase
Agreement" means the agreement entitled "Purchase and Sale Agreement"
dated o, 2006 and made between Vendor and Purchaser. In addition, the
definitions provided for in the Purchase Agreement are adopted herein
by this reference.
2. CONVEYANCE
Pursuant to and for the consideration provided for in the Purchase
Agreement, Vendor hereby sells, assigns, transfers, conveys and sets
over to Purchaser the entire right, title, estate and interest of
Vendor in and to the Assets, to have and to hold the same absolutely,
together with all benefit and advantage to be derived therefrom.
3. EFFECTIVE TIME
Possession and beneficial ownership of the Assets shall pass from
Vendor to Purchaser on the Closing Date. For all other purposes this
General Conveyance shall be effective as of the Effective Time.
4. SUBORDINATE DOCUMENT
This General Conveyance is executed and delivered by the parties hereto
pursuant to the Purchase Agreement and the provisions of the Purchase
Agreement shall prevail in the event of a conflict between the
provisions of the Purchase Agreement and the provisions of this General
Conveyance.
- 40 -
5. ENUREMENT
This General Conveyance shall be binding upon and shall enure to the
benefit of each of the Parties hereto and their respective trustees,
receivers, receiver-managers, successors and permitted assigns.
6. FURTHER ASSURANCES
Each party hereto will, from time to time and at all times hereafter,
at the request of the other party but without further consideration, do
all such further acts and execute and deliver all such further
documents as shall be reasonably required in order to fully perform and
carry out the terms hereof.
7. TIME OF ESSENCE
Time shall be of the essence in this General Conveyance.
8. GOVERNING LAW
This General Conveyance shall be construed in accordance with and
governed by the laws of the Province of Alberta.
9. COUNTERPART EXECUTION
This General Conveyance may be executed in counterpart and all executed
counterparts together shall constitute one agreement.
IN WITNESS WHEREOF the parties hereto have executed this General
Conveyance on the date first above written.
XTRA OIL & GAS LTD. TRISTAR OIL & GAS PARTNERSHIP, by its
managing partner, TRISTAR OIL & GAS LTD.
Per: /s/ William Edward McKechnie Per: /s/ Jeremy Wallis
William Edward McKechnie Jeremy Wallis
President Vice President, Land
Per: /s/ Rebecca Kiomi Mori
Rebecca Kiomi Mori
Secretary-Treasurer
- 41 -
SCHEDULE "G" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
SEISMIC
- 42 -
SCHEDULE "H" TO A PURCHASE AND SALE AGREEMENT DATED {}, 2006
BETWEEN XTRA OIL & GAS LTD. AND TRISTAR OIL & GAS PARTNERSHIP
________________________________________________________________________________
DISCLOSURE SCHEDULE
TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION.......................................................1
1.1 DEFINITIONS..........................................................1
1.2 ARTICLE, SECTION AND SCHEDULE REFERENCES.............................9
1.3 INTERPRETATION NOT AFFECTED BY HEADINGS..............................9
1.4 INCLUDED WORDS.......................................................9
1.5 SCHEDULES............................................................9
1.6 CURRENCY.............................................................9
1.7 KNOWLEDGE OR AWARENESS...............................................9
ARTICLE 2 PURCHASE AND SALE...................................................10
2.1 PURCHASE AND SALE...................................................10
2.2 PURCHASE PRICE......................................................10
2.3 ALLOCATION OF PURCHASE PRICE........................................10
2.4 PAYMENT OF PURCHASE PRICE...........................................10
2.5 GST.................................................................10
ARTICLE 3 CLOSING.............................................................11
3.1 PLACE OF CLOSING....................................................11
3.2 EFFECTIVE TIME OF TRANSFER..........................................11
3.3 DELIVERIES AT CLOSING...............................................11
3.4 DELIVERY OF DATA....................................................12
3.5 SPECIFIC CONVEYANCES................................................12
ARTICLE 4 ADJUSTMENTS.........................................................12
4.1 COSTS AND REVENUES TO BE APPORTIONED................................12
4.2 ADJUSTMENTS TO ACCOUNT..............................................13
4.3 ARBITRATION OF DISPUTES.............................................14
4.4 POST-CLOSING ACCOUNTING.............................................15
4.5 DEPOSITS, CASH CALLS AND OPERATING FUNDS............................15
ARTICLE 5 CONDITIONS OF CLOSING...............................................15
5.1 PURCHASER'S CONDITIONS..............................................15
5.2 VENDOR'S CONDITIONS.................................................16
5.3 EFFORTS TO FULFILL CONDITIONS PRECEDENT.............................17
5.4 FAILURE OF A CONDITION DUE TO A BREACH..............................17
5.5 OFFICER'S CERTIFICATES GENERALLY....................................17
ARTICLE 6 REPRESENTATIONS AND WARRANTIES......................................18
6.1 REPRESENTATIONS AND WARRANTIES OF VENDOR............................18
6.2 NEGATION OF OTHER REPRESENTATIONS AND WARRANTIES....................21
6.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER.........................22
6.4 SURVIVAL............................................................23
- ii -
ARTICLE 7 INDEMNITIES FOR REPRESENTATIONS AND WARRANTIES......................23
7.1 VENDOR'S INDEMNITIES FOR REPRESENTATIONS AND WARRANTIES.............23
7.2 PURCHASER'S INDEMNITIES FOR REPRESENTATIONS AND WARRANTIES..........23
7.3 LIMITATION..........................................................23
ARTICLE 8 INDEMNITIES.........................................................24
8.1 PURCHASER'S GENERAL INDEMNITY.......................................24
8.2 ENVIRONMENTAL MATTERS AND ABANDONMENT AND RECLAMATION OBLIGATIONS...24
8.3 VENDOR'S GENERAL INDEMNITY..........................................25
ARTICLE 9 RIGHTS OF FIRST REFUSAL.............................................25
ARTICLE 10 MAINTENANCE OF ASSETS..............................................25
10.1 MAINTENANCE OF ASSETS PRIOR TO CLOSING..............................25
10.2 CONSENT OF PURCHASER................................................26
10.3 FOLLOWING CLOSING...................................................26
10.4 TRANSFER OF OPERATORSHIP............................................27
ARTICLE 11 ARBITRATION........................................................27
11.1 GENERAL ARBITRATION PROVISIONS......................................27
ARTICLE 12 GENERAL............................................................27
12.1 FURTHER ASSURANCES..................................................27
12.2 NO MERGER...........................................................28
12.3 ENTIRE AGREEMENT....................................................28
12.4 GOVERNING LAW.......................................................28
12.5 ENUREMENT...........................................................28
12.6 TIME OF ESSENCE.....................................................28
12.7 NOTICES.............................................................28
12.8 INVALIDITY OF PROVISIONS............................................29
12.9 WAIVER..............................................................29
12.10 REMEDIES GENERALLY..................................................29
12.11 AMENDMENT...........................................................30
12.12 POST-CLOSING INFORMATION AND ACCESS.................................30
12.13 PUBLIC ANNOUNCEMENTS................................................30
12.14 COUNTERPART EXECUTION...............................................30
12.15 AMENDMENTS TO SCHEDULES.............................................31
Schedule "A" - Land Schedule
Schedule "A-1" - Land Plat
Schedule "B" - Wells
Schedule "C" - Facilities
Schedule "D" - Sale, Processing and Transportation Agreements
Schedule "E" - AFEs
Schedule "F" - General Conveyance
Schedule "G" - Seismic
Schedule "H" - Disclosure Schedule