JOINT OPERATING AGREEMENT BETWEEN GUJARAT STATE PETROLEUM CORPORATION LIMITED AND JUBILANT ENPRO LIMITED AND GEOGLOBAL RESOURCES (INDIA) INC. WITH RESPECT TO THE CONTRACT AREA BLOCK : KG-OSN-2001/3
Exhibit
10.19
BETWEEN
GUJARAT
STATE PETROLEUM CORPORATION LIMITED
AND
JUBILANT
ENPRO LIMITED
AND
GEOGLOBAL
RESOURCES (INDIA) INC.
WITH
RESPECT TO THE CONTRACT AREA
BLOCK
: KG-OSN-2001/3
Page
2
Page
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Article
1
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Definitions
and Interpretation
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5
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Article
2
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Effective
Date, Duration and Scope
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8
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Article
3
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Participating
Interests and Joint Operations
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9
|
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Article
4
|
Operator
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10
|
|
Article
5
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Operating
Committee
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19
|
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Article
6
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Work
Programmes and Budgets
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22
|
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Article
7
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Costs,
Expenses and Default
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25
|
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Article
8
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Ownership
of Assets
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30
|
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Article
9
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Information,
Reports and Confidentiality
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31
|
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Article
10
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Work
Programme Commitment
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35
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Article
11
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Relinquishment
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36
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Article
12
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Withdrawal
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37
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Article
13
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Sale,
Transfer and Assignment
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39
|
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Article
14
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Force
Majeure
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44
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Article
15
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Operations
by less than all Parties
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46
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Article
16
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Insurance
and Indemnification
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55
|
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Article
17
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Disposition
of Production
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57
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Article
18
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Notices
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58
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Article
19
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Sole
Expert, Conciliation and Arbitration
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59
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Article
20
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Applicable
Law
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61
|
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Article
21
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Relationship
of Parties, Mutual Indemnities and No Partition
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62
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Article
22
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General
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63
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Page
3
Exhibit
"A" Accounting Procedure
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Article
I
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General
Provisions
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66
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Article
II
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Basis
of Charges to the Joint Account
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72
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Article
III
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Disposal
of Materials
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73
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Article
IV
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Inventories
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74
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Article
V
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Forms
in which Accounts shall be Maintained
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75
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Exhibit
"B" Carried Interest Agreement
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76
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Page
4
THIS
AGREEMENT is made this 7th day of August 2003 by and between:
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GUJARAT
STATE PETROLEUM CORPORATION LIMITED, a body corporate established
under the Companies Xxx 0000, having its registered office
at Xxxxx 00, 0xx
Xxxxx, Xxxxx
Xxxxxx, Xxxxxx-00, Xxxxxxxxxxx – 382 011, INDIA (hereinafter referred to
as "GSPC" and unless the context otherwise require shall
include its successors and permitted assignees), of the FIRST
PART,
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AND
2.
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JUBILANT
ENPRO LIMITED, a body corporate established under the Companies
Xxx 0000, having its registered office at 0X, Xxxxxx-00X, Xxxxxxxxxxxxx
Xxxx, Xxxxx - 201 301, Uttar Pradesh (hereinafter referred to as
“JEL” and unless the context otherwise require shall
include its successors and permitted assignees), of the SECOND
PART.
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AND
3.
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GEOGLOBAL
RESOURCES (INDIA) INC., a body corporate established under the
laws of Canada having its registered xxxxxx xx 00-00 Xxxxxx XX, Xxxxxxx,
Xxxxxxx, X0X 0X0, Xxxxxx (hereinafter referred to as
“GGR” and unless the context otherwise require shall
include its successors and permitted assignees), of the THIRD
PART.
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All
of
which are collectively referred herein as Parties, which expression shall
include their successors and such assignees as are permitted under Article
13
hereof.
WITNESSETH
WHEREAS,
the Parties have financial and technical capabilities to explore, develop,
produce, transport, refine and market the petroleum products and Parties have
entered into the Production Sharing Contract (hereinafter referred to as
"Contract") with respect to Contract Area identified as Block
KG-OSN-2001/3 on 4th
February, 2003
with the President of India acting through the Joint Secretary, Ministry of
Petroleum & Natural Gas (hereinafter referred to as "Government");
and
WHEREAS,
the Parties wish to define their respective rights and obligations under this
Joint Operating Agreement (JOA) (hereinafter referred to as "Agreement") with
the object to conduct & perform their mutual rights and obligations pursuant
to the Contract in a manner which is consistent with the provisions of the
Contract.
NOW,
THEREFORE, in consideration of the premises and mutual agreements hereinafter
contained, the Parties agree as follows:
Page
5
ARTICLE
1 - DEFINITIONS AND INTERPRETATION
Unless
the context otherwise requires, for the purposes of this Agreement, each term
listed below shall have the meaning stated therefore, whenever used in this
Agreement. The words not specifically defined herein but defined in the Contract
shall have the same meaning herein.
1.1
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"Abandonment"
means all or any action or conduct for the purpose of Site Restoration,
abandoning Fields, Joint Operations, Joint Property, or any other
operations and/or property relating thereto under this Agreement
whether
by way of discontinuation, demolition, removal, destruction, conversion,
placement on temporary or permanent care and maintenance, or other
basis,
or any action or conduct, necessary to comply with all applicable
laws,
Governmental requirements, or Good International Petroleum Industry
Practices (GIPIP).
|
"Accounting
Procedure" means the Accounting Procedure attached hereto as
Exhibit A
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"Work
Program" means the work program as given in the
Contract.
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"Advance"
means each payment of cash required to be made pursuant to a cash
call.
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1.5
|
"Agreement"
means this Joint Operating Agreement (JOA) including Exhibits, Schedules,
Annexures and any amendments
thereto.
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"Approved
Budget" means a budget that has been approved by the Operating
Committee with respect to the Approved Work
Programme.
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"Approved
Work Programme" means a Work Programme that has been approved by
the Operating Committee.
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"AFE"
means an authorization for expenditure as envisaged in Article 6.6
hereof.
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"Budget"
means a budget formulated in relation to a Work Programme. The term
"Budget" shall mean, as the context requires, preliminary, proposed
or
finally adopted versions thereof, and any revisions or supplements
thereto.
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|
"Business
Day" means a day on which the banks in India are customarily
open
for business.
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"Cash
Call" means any request for payment of cash made by the Operator,
in accordance with an Approved Work Programme and Approved Budget
to the
Parties in connection with the Joint Operations (as per the format
to be
decided by the Operating
Committee).
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1.12
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“Carried
Interest Agreement” means the agreement executed between GSPC and GGR on
27th
August 2002, a copy of which is enclosed as Exhibit
“B”
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Page
6
1.13
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"Confidential
Information" means all legal, financial, commercial, technical
and other data, knowledge and information (including any and all
information) obtained and/or acquired by any Party(ies) relating
to this
Agreement including but not
limited to geological, geophysical, seismic and other data, maps,
models,
diagrams and modeling exercises and all reports or other documents
created
from such data and information and exercises and analyses carried
out
using such data and information.
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1.14 "Effective
Date" means the date as provided in the Contract.
1.15
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"Gross
Negligence" means any act or failure to act (whether sole, joint,
or concurrent) by a Party which was intended to cause, or which was
in
reckless disregard of or wanton indifference to, harmful consequences
such
party knew, or should have known, such act or failure would have
had on
the safety or property of another person or entity, but shall not
include
any error of judgment or mistake made by such Party in the exercise
in
good faith or any function, authority or discretion conferred on
the Party
under this Agreement.
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1.16
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"Joint
Account" means the set of accounts maintained by the Operator in
accordance with the provisions of this Agreement to record all revenues,
expenditure or other monetary transactions conducted
on behalf of the Parties as provided
herein.
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1.17
|
"Joint
Operations" means those operations and activities, including
Petroleum Operations, to be carried out by the Operator pursuant
to and in
terms of this Agreement.
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1.18
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"Joint
Property" means, at any point in time, the Contract Area, all
xxxxx, facilities, installations, equipment, materials, information,
funds
and the property held for the Joint Account for use in Petroleum
Operations.
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1.19
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"Operator"
means a Party designated or otherwise appointed under Article 4.2
of this
Agreement to conduct Joint Operations or any successor appointed
under
this Agreement.
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1.20
|
"Non-Operator(s)"
means at any time the Party or Parties to this Agreement other than
the
Operator.
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1.21
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"Party"
or "Parties" means Parties to this Agreement and the
respective successors and permitted assigns of
each.
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1.22
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"Willful
Misconduct" means an intentional and conscious or reckless
disregard by the supervisory or management staff or any director
of any
Party, of the terms of this Agreement or of Good International Petroleum
Industrial Practice but shall not include any act or omission reasonably
required to meet emergency conditions, including without limitation
the
safeguarding of life, property and Joint Operations or, for the avoidance
of doubt, any error of judgment or mistake made by any such person
in the
exercise, in good faith of any function, authority or discretion
conferred
upon the Party.
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Page
7
INTERPRETATION
1.23
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Unless
the context otherwise requires, reference to singular shall include
a
reference to the plural and vice-versa, and reference to any gender
shall
include a reference to all other
genders.
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1.24
|
Unless
the context otherwise requires, reference to an Article or Clause
shall be
an Article or Clause of this
Agreement.
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1.25
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In
the event of any inconsistency between the main body of this Agreement
and
any Exhibits attached hereto, the provisions of the
main body of the Agreement shall
prevail.
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1.26
|
Reference
to any law or regulation having the force of law includes a reference
to
that law or regulation from time to time amended, extended or
re-enacted.
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1.27.
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Terms
used but not defined herein shall have the meaning attributed to
them
under the Contract. In case of any conflict of any
term/provisions of this Agreement with that of the Contract the provisions
of the Contract shall prevail and be binding on the Parties to this
Agreement.
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1.28
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Headings
of the Articles are titles to each of the Articles to this Agreement
and
are solely for the convenience of the Parties hereto and shall not
be used
with respect to the interpretation of the said
Articles.
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1.29
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Words
and abbreviations which have well known technical or trade/commercial
meanings are used in the Agreement in accordance with such
meanings
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Page
8
ARTICLE
2 - EFFECTIVE DATE, DURATION AND SCOPE
2.
1
|
This
Agreement shall be effective from the Effective Date and shall continue
in
effect for the term of the License and any Lease granted including
their
extensions and thereafter until a final settlement of all accounts
among
the Parties has been made or terminated earlier in accordance with
the
terms of this Agreement or
Contract.
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2.2
|
The
scope and purpose of the Joint Operations are limited to the prospecting,
exploring and drilling for Petroleum; developing, operating, producing
and
abandoning the oil and gas fields in the Contract Area; treating,
field
processing and transporting of Petroleum produced to the delivery
point
and appropriate supporting activities for any of the
foregoing.
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2.3
|
Except
otherwise provided herein, each Party shall share in all costs,
obligations and benefits in proportion to its Participating Interest
and
shall include any interest being carried by any of the
parties.
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Page
9
ARTICLE
3 - PARTICIPATING INTEREST AND JOINT OPERATIONS
3.1
|
The
Participating Interest of the Parties on the Effective Date shall
be as
follows:-
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GSPC : 80
%
JEL : 10
%
GGR : 10
%
3.2
|
The
Parties agree to undertake and to complete the Work Programme as
described
in the Contract.
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3.3
|
GeoGlobal
Resources ( India ) Inc.’s 10% participating interest is in
accordance with Carried Interest Agreement (CIA) signed between GSPC
and
GeoGlobal Resource (India ) Inc. dated 27th
August, 2002
and Articles specifically 2 & 29 of the Production Sharing
Contract dated 4th
February,
2003. CIA between GSPC and GGR shall be part of this agreement in
order to
determine the relationship and rights and obligations of GSPC and
GGR
towards each other in terms of GGR’s 10% participating interest vis-à-vis
Carried Interest Agreement.
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3.4
|
For
greater certainty, for the purposes of this Agreement,
the Contract and the Carried Interest Agreement as referred in
Article 3.3 above, GSPC and GGR acknowledge and agree that
:
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3.4.1
|
GSPC
shall be solely liable and agree to pay on behalf of GGR, all of
GGR’s
obligations, costs and expenses of whatsoever nature and kind, arising
out
of or attributable to, this Agreement and the Contract, including
without
limitation, all of GGR’s Participating Interest share of the
Contract Cost and any applicable royalty payments to the
Government.
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3.4.2
|
GSPC
shall be entitled to recover all of the cost and expenses after deducting
all statutory payments, out of the proceeds from sale of oil
& gas if any from the Contract Area, and as mentioned in Article
3.4.1, shall also be entitled to recover costs incurred towards GGR’s 10%
of Participating Interest Share including applicable royalty
payment made to Government, out of
GGR’s Participating Interests share of Cost
Petroleum.
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3.4.3
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At
such time after GSPC has recovered GGR’s Participating Interest
Share of all the cost and GGR’s Participating Interest share of the
applicable royalty payment to the Government, as mentioned in Article
3.4.1 above, GGR shall be entitled to its Participating Interest
share of
joint account, joint property, profit petroleum and proceeds of the
sale
thereof.
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Page
10
3.5
|
Reference
to the term “Participating Interest” and any rights and obligations in
connection with a party’s Participating Interest under this Agreement
shall take into account the terms and conditions of the Carried Interest
Agreement between GSPC and GeoGlobal Resources (India) Inc. dated
27th
August 2002.
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Page
11
ARTICLE
4 - OPERATOR
4.1
|
All
Joint Operations shall be conducted by the Operator in accordance
with
policies, Work Programmes and Budgets approved in accordance with
the
provisions of this Agreement, the directions of the Operating Committee
and in accordance with Good International Petroleum Industry Practices
(GIPIP).
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4.2
|
GSPC
is designated and shall act as the Operator, in accordance with the
provisions of the Contract and this Agreement. The Parties shall
provide
the Operator with such powers of attorney or any other documents
that it
may need, from time to time, in order to carry out Joint Operations
pursuant to this Agreement.
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4.3
|
Subject
to Article 4.5, the Operator shall have the right to resign by giving
not
less than one hundred and eighty (180) days prior written notice
to the
other Parties, or such shorter period of notice as mutually
agreed by the Parties.
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4.4
|
Removal/Change
of Operator
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4.4.1
|
Subject
to Article 4.5, Operator shall be removed forthwith and another Operator
appointed upon receipt of notice of occurrence of any of the following
events:
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i)
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An
order is made by a court or any effective resolution is passed for
dissolution, liquidation, or winding up of
Operator;
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ii)
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Operator
dissolves, liquidates or terminates its corporate
existence;
|
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iii)
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Operator
becomes insolvent, bankrupt or makes an assignment for
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the
benefit of creditors;
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A
receiver is appointed for a substantial part of Operator's assets;
or
|
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v)
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If
Operator becomes the holder of Participating Interest of less than
ten
percent (10%).
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4.4.2
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If
the Operator has committed a material breach of this Agreement, any
Party
may give written notice of such breach to the Operator, specifying
the
breach committed. If it is determined pursuant to Article 19 of
this Agreement that Operator has committed such material breach and
further, failed to rectify such breach within sixty (60) days of
receipt
of notice from a Party, Operator may be removed by the unanimous
vote of
the Parties, other than the Operator and its
Affiliates.
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Page
12
4.5 When
a change of Operator occurs pursuant to Article 4.3 or Article 4.4:
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i)
|
The
Operating Committee shall meet as soon as possible to appoint a successor
Operator provided that only the Non-Operators shall have the right
to vote
to appoint the successor Operator. Such appointment shall be by the
unanimous vote of those Parties entitled to
vote.
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ii)
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The
Operating Committee shall arrange for the taking of an independent
inventory of all Joint Property and an audit of the books and records
of
the removed Operator. Such inventory and audit shall be completed,
if
possible, no later than the effective date of the change of the Operator.
The liabilities and expenses of such inventory and audit shall be
charged
to the Joint Account.
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iii)
|
The
resignation or removal of Operator or replacement by the successor
Operator shall not become effective prior to receipt of any approval
of
the Government, if same is
required.
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iv)
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Upon
the effective date of the resignation, or removal or change of the
Operator, the successor Operator shall succeed to all duties, rights
and
authority of Operator. The former Operator shall transfer to the
successor
Operator all Joint Property, books of accounts, records and other
documents maintained by the outgoing Operator pertaining to the Contract
Area and to Joint Operations. Upon delivery of the above described
property and data, the former Operator shall be released and discharged
from all obligations and liabilities as
Operator.
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v)
|
The
outgoing Operator shall be liable for all obligations and liabilities
as
Operator incurred till the effective date of appointment of the successor
Operator.
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POWERS
AND DUTIES OF OPERATOR
4.6
|
Subject
to Article 4.1, Operator shall perform and carry out the functions
and
shall, for this purpose, have the following powers and authorities
:
|
|
4.6.01
Exert its bonafide efforts to explore the Contract Area in accordance
with
Good International Petroleum Industry Practices (GIPIP) to discover
commercial accumulations of
Petroleum.
|
4.6.02
|
Subject
to the provisions of this Agreement and Contract, exercise control
and
exclusively manage and carry out the Joint
Operations.
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4.6.03
|
Comply
with the respective obligations imposed upon the Parties by the laws
of
India including the timely filing of reports and payment of all fees,
levies, taxes, royalty, cess, if any, (except income taxes payable
by the
Parties), and charges of every nature payable by the Parties under
the
said laws provided that Parties have honoured Cash Calls and funds
are
available in Joint Account.
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4.6.04
|
Take
all appropriate steps to obtain, maintain in force, renew or extend
consents, approvals, and authorizations in accordance with the terms
of
this Agreement.
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Page
13
4.6.05
|
Represent
the Parties before the Government and any and all courts, administrative
departments, bureaus and agencies whatsoever in India in matters
related
to the Joint Operations, and in so doing prepare and sign, file and
receive any affidavits, undertakings, contracts, petitions, requests,
certificates, authorizations, reports or other documents in connection
therewith; advise the Parties in a timely fashion of any such acts
which
in the Operator's opinion may significantly affect the Parties; and
perform all other acts of a similar nature necessary and proper in
connection therewith, except to the extent any Party has indicated
its
desire to represent itself in connection with any of the foregoing.
Non-Operators shall be entitled to attend for the purposes of observation,
meetings between the Operator and the Government and any court appearance
of the Operator where such meetings or appearances pertain to matters
relating to this Agreement.
|
|
4.6.06
Establish and maintain such relationship with the Government, local
authorities and with the public as shall be necessary or appropriate
to
assure that the Joint Operations are conducted and carried out to
the best
advantage of the Parties.
|
|
4.6.07
Prepare and submit to the Operating Committee, Work Programmes
and Budgets
as provided in Article 6.
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4.6.08
In accordance with the procedure outlined by Operating Committee,
establish and maintain such offices, installations and facilities
in India
or abroad as are necessary, adequate and appropriate for the efficient
performance of Joint Operations and service
hereunder.
|
|
4.6.09
Establish and maintain such books, records and accounts as are required
by
this Agreement and Contract, if any, together with such additional
books,
records and accounts as from time to time may be reasonably specified
by
the Parties. Maintain such production records, well and reservoir
data,
field reserves and rate of production studies and estimates, and
the like
as will reflect a thorough and accurate history of Petroleum Operations,
together with such additional similar records and data as from time
to
time may be specified by the Operating Committee or required under
the
Agreement.
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4.6.10
|
Employ,
administer, use and have sole responsibility for all the selection,
employment, administration and compensation for all personnel reasonably
required for the Joint Operations. Also obtain when appropriate,
such
occasional or part-time services of experts, consultant, retainers,
loan
employees and others as operational requirements may, in Operator's
opinion, dictate, required while always keeping in mind the Parties
desire
to conduct Joint Operations in an efficient and cost effective
manner.
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Page
14
4.6.11
|
Acquire
on behalf of the Parties and utilize in the Joint Operations all
equipment, materials and supplies necessary or desirable for carrying
on
the Joint Operations.
|
|
4.6.
12 Acquire such lands, leases, surfaces rights, easements and
rights-of-way as may be necessary or desirable for the Joint Operations;
provided, however, that Operator shall not acquire for the Joint
Operations any lands, surface rights, easements or rights-of-way
involving
a total commitment in excess of the equivalent of One hundred thousand
United Sates Dollars (U.S. $ 100,000) for each such acquisition without
prior approval of Operating Committee; and provided, further, that
Operator shall not acquire for the Joint Operations any lease for
a longer
period of time than ten (10) years at an annual rental in excess
of the
equivalent of fifty thousand United States Dollars (U.S. $50,000)
without
prior approval of the Operating
Committee.
|
4.6.13
|
Enter
into contracts with others in its own name as principal or as agent
for
the Parties, as appropriate and in the interest of the Parties following
the procedure, for the performance of services or supply of facilities,
equipment, materials, or supplies by such others, provided that there
is a
reasonable basis to believe that such others shall be competent and
capable technically and financially, to perform properly their obligations
under such contracts, and that the selection of such contractors
is to be
made on the basis of the Procedure for Acquisition of Goods and Services
contained in Appendix "F" of the
Contract.
|
4.6.14
|
In
case of emergency, Operator may award subcontracts without following
the
procedure set out in the Procedure for Acquisition of Goods and
Services contained in Appendix “F” of the Contract. Operator
shall, however, provide the following information to the other Parties
at
the earliest opportunity after the emergency having been
occurred – (i) the nature of the emergency and actions taken/proposed to
be taken by Operator; and (ii) intimation of the transactions entered
into/proposed to be entered into, together with the estimated
financial impact thereof and shall submit written detailed reasons
for
awarding such subcontracts along with the actual financial implications
thereof.
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4.6.15
|
Promptly
pay and duly discharge all costs and expenses incurred in connection
with
the Joint Operations and keep and maintain the Contract Area and
any
property acquired for the Joint Operations free of all liens, charges
and
encumbrances except as permitted under this Agreement or the Contract
arising out of the Joint Operations or in connection
therewith.
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4.6.15.1
|
The
Operator shall obtain and maintain in respect of the Joint Operations
and
the Joint Property, insurance as required under this Agreement or
any
applicable laws and such other insurance as the Operating Committee
may
from time to time determine. All such required insurance shall name
all
the Parties having a Participating Interest as additional insured
with
appropriate waivers of subrogation. No other insurance shall be
carried by the Operator for the Joint Operations. Each
Party individually may maintain such additional insurance or
self-insurance as it deems proper to protect its own interests in
the
Joint Operations, the costs of which shall not be charged to the
Joint
Account.
|
4.6.15.2
|
The
policies of any such insurance shall be endorsed with waivers of
all
explicit or implicit rights of subrogation to eventual rights against
Government and the Non-Operators and, alternatively, to the extent
possible, the Operator shall have Government and the Non-Operators
named
as additional insured. The Operator shall take care that
Subcontractors while taking insurance shall have the Parties and
the
Government named as additional
insured.
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Page
15
4.6.15.3
|
Each
Party shall be solely liable for any loss or damage or liability
of
whatsoever nature when such loss, damage or liability is caused by
such
Party's Gross Negligence or Willful Misconduct and in such event
such
Party shall indemnify the other Parties against all claims in respect
of
any loss or damage so arising.
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4.6.15.4
|
Subject
to Article 4.6.15.3 and to Article 4.9.1, all damage, loss and liability
incurred in the Joint Operations which are not completely covered
by
insurance policies procured or furnished under Article 4.6.15.1 shall
be
borne by the Parties in proportion to their respective Participating
Interests.
|
|
4.6.16 Open,
maintain and operate a bank account or accounts as may be
appropriate for the Joint
Operations.
|
4.6.17
|
Keep
the Parties informed regarding the Joint Operations and
prepare and submit reports, technical studies and production
forecasts,
|
including
significant changes in production forecasts, and other data and
information as required under this
Agreement.
|
4.6.18
|
Subject
to Article 9, allow at the sole risk and expense of the concerned
Party(s), authorized representatives of the Parties full access to
Joint
Operations, data and information pertaining to Joint Operations including
derivative maps, reports, books, records, accounts at all reasonable
times
and conduct audits as provided for in the Accounting Procedure at
the sole
risk and expense of the concerned Party
(s).
|
4.6.19
|
Give
timely notice to the Parties prior to physically demarcating the
location
of a Well (including coordinates, and all other relevant information),
as
well as reasonable advance notice of the commencement of drilling
operations and give notice of proposed
testing.
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Page
16
4.6.20
|
Take
prompt and necessary action and measures to protect and safeguard
life,
health, the environment and property and interests of the Parties
and the
Joint Operations.
|
4.6.21
|
Make
such recommendations from time to time to the Operating Committee
for the
efficient carrying out of the Joint Operations, as Operator may consider
advisable.
|
|
4.6.22
Perform duties for the Operating Committee set out in Article 5,
submit
Work Programmes, Budgets and AFEs as provided in Article 6 and perform
such additional operations and services as Operating Committee may
from
time to time direct.
|
4.7
|
Operator
undertakes to carry out each Joint Operations programme within the
limits
of the Approved Work Programme and Approved Budget in accordance
with the
Good International Petroleum Industry Practices (GIPIP) and shall
not
undertake any operations hereunder not included in the Approved Work
Programme or make any expenditure as to a Year in excess of the amounts
budgeted in the Approved Budget except as
follows:
|
4.7.1
|
If
necessary to carry out an Approved Work Programme, Operator is authorized
to make expenditure in excess of the Approved Budget up to but not
exceeding ten percent (10%) of each budget
item.
|
4.7.2
|
Operator
in a Year is also authorized to make expenditures for operations
in the
Contract Area not included in Approved Work Programme or not provided
in
an Approved Budget, limited, however, to a total not exceeding one
hundred
thousand United States Dollars (US $ 100,000) provided that the
expenditures are not for purposes
previously rejected by the Operating Committee and
provided such expenditures shall be reported promptly to the Operating
Committee by the Operator. Once the itemized report of such expenditures
has been approved by the Operating Committee, the amount of expenditure
limit shall be increased back to one hundred thousand United States
Dollars (U.S. $100,000).
|
4.7.3
|
Operator
shall annually submit a forecast of operating expenses (also called
operating expenditure budget) to Operating Committee. Should actual
or
anticipated operating expenses for any annual period be in excess
of such
forecast by ten percent (10%) or two hundred thousand United States
Dollars (U.S. $200,000), whichever is less, appropriate explanation
of the
over expenditure shall be presented to the Operating Committee as
soon as
such overrun is evident and Operating Committee shall determine corrective
actions to be taken, if any. Operator shall furnish to the Parties
quarterly statements of actual versus budgeted expenditures with
appropriate explanations for
variances.
|
4.8
|
Operator
shall promptly provide the Parties all duplicate samples, properly
packed,
of rocks and fluids collected during operations. Operator shall
always be mindful in the conduct of Petroleum Operations of the rights
and
interest of India.
|
Page
17
4.9
|
If
a claim is made against any Non-Operator or if any Party is sued
on
account of any matter arising from operations hereunder over which
such
Party has no control because of the rights given to the Operator
by this
Agreement, such Party shall immediately notify all other Parties
and the
claim or suit shall be treated as any other claim or suit involving
operations hereunder. Operator shall (except in the case of
class actions) without admission of liability, either compromise,
settle
or defend claims and litigation (to the extent not covered by insurance)
arising out of Joint Operations provided, however, that Operator
shall not
pay or waive rights to more than the equivalent of one hundred thousand
United States Dollars (US $100,000) in full settlement of any claim
or
suit without approval of the Operating Committee. Any claim or litigation
involving an amount in excess of the equivalent of two hundred fifty
thousand United States Dollars (US$ 250,000) shall be reported promptly
to
the Operating Committee and shall not be settled without approval
of the
Operating Committee. The above is without prejudice to the legal
rights
available to a Party to be represented by their own counsel at
their expense to participate in the defense of any such claim, demand,
suit, or action. Any costs and expenses incurred shall be treated
as part
of the Joint Account.
|
4.9.1
|
The
Operator shall not be liable to the Parties or any of them for any
loss or
damage arising in connection with the conduct by the Operator of
Joint
Operations hereunder, and, further each Party shall, to the extent
of its
Participating Interest, indemnify the Operator against any action,
claim
or demand arising in connection therewith except in the case of any
loss
or damage or any action, claim or demand, aforesaid arising directly
out
of Gross Negligence or Wilful Misconduct on the part of the
Operator.
|
4.9.2
|
In
the event a claim, demand, action is made by the Government or any
third
party or arising out of a liability is made against or incurred by
or
demanded from any Party who is not the Operator under the terms of
this
Agreement, then such Party shall upon receipt of any such claim or
demand
or upon receipt of notification of such suit or action, promptly
report
the same to the Operator and all of the other Parties and provide
therewith details of such claim, demand, suit or action. Any compromise,
settlement or waiver of any rights in respect of any such claim,
demand,
suit or action made by such Party without the prior approval of the
Operating Committee, shall be solely to the account of such Party
and the
other Parties hereto shall not be responsible or liable therefor
or any
part thereof. The aforesaid is without prejudice to legal rights
as may be
available to the Parties to be represented by their own counsel at
their
expense in the participation or defense of any such claim, demand,
suit or
action.
|
4.10
|
Each
of the Parties shall obtain and maintain, in respect of its Participating
Interest share of any liability to third parties which may arise
in
connection with the Joint Operations, such insurance or other evidence
of
ability to meet any such liability as shall from time to time
be mutually agreed by the Parties. Each of the Parties shall, as
and when
required by the Operator, produce to it such evidence as it shall
reasonably require to establish that such insurance or such ability
exists
and is being maintained.
|
Page
18
|
4.11
|
The
Parties agree that non-operating party may desire to second their
personnel to JV operation. Such secondment of personnel by a
Non-Operating party to Operator’s organizations shall be subject to a
terms and conditions which shall be mutually agreed to and covered
under a
separate agreement/arrangement between Operator and concerned
non-operating party:
|
|
4.12
|
The
Parties agree that costs incurred by the Operator in relation with
the
performance of its obligations under Article 4 shall be chargeable
to the
Joint Account.
|
Page
19
ARTICLE
5 - OPERATING COMMITTEE
5.1
|
To
provide for the overall supervision and direction of Joint Operations,
there shall be established an Operating Committee consisting of one
(1)
representative of each of the Parties to this Agreement. The nominee
of
the Operator shall be the convenor and chairman of the Operating
Committee.
|
Each
Party shall within two weeks of the signing of this Agreement notify the other
Party (s) in writing of the name and address of its representative and may
at
any time and from time to time replace its representative by notice to the
other
Party and may designate one or more alternate representatives to act in the
absence of its representative. A representative shall be deemed authorized
to
bind the Party nominating such representative for the purposes of this
Agreement.
The
Operating Committee is the coordinating body for the direction, control and
administration of the Joint Operations. The principal functions of the Operating
Committee shall be:
5.1.1
|
To
establish policies from time to time governing various aspects or
activities of the Joint Operations.
|
5.1.2
|
To
review, approve and revise annual Work Programmes and corresponding
Budgets, as proposed by the
Operator.
|
5.1.3
|
To
appoint such technical, financial, accounting, legal or other
subcommittees as the representatives may deem appropriate for
studies, analyses, reports, etc., on matters pertaining to the Joint
Operations.
|
5.
1.4 To
review reports on Joint Operations conducted in the Contract Area.
5.1.5
|
To
review and approve any proposal for the appraisal of an area and
to
delineate any Discovery.
|
5.1.6
|
To
review, revise and approve Work Programmes and Budgets for Exploration,
Development and Production Operations as defined herein and as proposed
by
the Operator.
|
5.1.7 To
review and approve Exploration Xxxxx and locations (including location of
Wellsrequired for any purposes whatsoever).
5.1.8 To
review and approve Well stimulation programmes.
5.1.9 To
review and determine the area to be relinquished
Page
20
5.1.10
|
To
approve appointment of Subcontractors for carrying out any Petroleum
Operations by Operator beyond the authority vested in the Operator
under
this Agreement.
|
5.1.11 To
review and approve the declaration of a Discovery as a Commercial
Discovery.
5.1.12 To
review and approve any proposed plan for joint development.
5.1.13 To
review and determine the area that may be voluntarily relinquished.
5.1.14
|
To
review and approve such other matters with respect to Joint Operations
in
the Contract Area as may be referred to the Operating Committee by
any
member of the Operating Committee.
|
5.1.15
|
Any
other matter which is required by the terms of this Agreement to
be
approved by the Operating
Committee.
|
5.2
|
Unless
otherwise agreed, the Operating Committee shall meet at least once
every
three months at the office of the Operator or elsewhere as the Parties
shall unanimously decide. The Operator shall call such meetings and
shall
give at least twenty (20) days prior notice of the
time and date of each meeting, together with the agenda and all supporting
data/information etc. Additional meetings may be requested and convened
by
any Party. A Party which wishes to hold an additional meeting
shall give notice at least twenty (20) days before the proposed meeting
date, specifying the proposed time, place and agenda of the meeting.
In
case of emergency, a meeting shall be convened whenever necessary,
upon
such notice as shall be reasonable in the circumstances. Matters
not
included in the agenda may be taken up with the unanimous consent
of all
Parties (whether present at the meeting or
otherwise).
|
5.3
|
The
Chairman of the Operating Committee, who shall preside over the meeting
and prepare the minutes, shall be a representative of the Operator.
The
minutes shall include the names of the representatives present, the
Parties they represent and any formal action taken by the Operating
Committee. The minutes shall be deemed correct and approved when
the
Operator receives written, telex or facsimile approval from the Parties.
The Chairman shall maintain a permanent file of all Operating Committee
determinations.
|
5.4
|
Any
of the Parties may submit matters for determination without holding
a
meeting provided such matters are submitted by facsimile, telex or
acknowledged telegram to the other Parties. In such event, the
other Parties shall vote by giving advice by facsimile, telex
or acknowledged telegram of such vote to the submitting Party within
thirty (30) days with copies to all the other parties unless the
communication relates to the deepening, completing, sidetracking,
plugging
back, reworking, coring, testing or abandoning of a well on which
drilling
equipment is located, in which case each Party shall vote within
forty
eight (48) hours. A failure to vote shall be deemed to be a negative
response.
|
Page
21
5.5
|
Each
representative or alternate representative at the cost and expense
of the
Party he represents, shall be entitled to have present at any Operating
Committee meeting such reasonable number of advisors as he may desire
and
which are appropriate to the Joint Operations matters under
consideration.
|
5.6
|
Subject
to Article 11 of this Agreement, all decisions of the Operating Committee
shall be made by unanimous vote. In case of difference of
opinion all decision shall be taken by affirmative vote of 70% or
more of
the participating interest with each party voting according to its
participating interest and such decisions shall be final and binding
on
the Parties.
|
5.7
|
The
lodging, food, transportation and incidental costs incurred by
representatives on the Operating Committee to attend meetings of
the
Operating committee shall be borne by the respective Parties they
represent.
|
Page
22
ARTICLE-
6 - WORK PROGRAMMES AND BUDGETS
6.1
|
On
or before the 30th
day of
November of each Year Operator shall submit to the Parties a
proposed Work Programme and Budget for the Contract Area for the
subsequent Year, which Work Programme and Budget shall include as
a
minimum the work and expenditure required to be performed or incurred
during such Year. At the same time as that Year's Work Programme
and
Budget are submitted, a provisional Work Programme for the next succeeding
Year shall be presented by the Operator. Operator shall submit to
the
Parties a proposed Work Programme and Budget as soon as possible
after the
execution of this Agreement for the remainder of the Year in which
this
Agreement is executed.
|
6.2
|
On
or before the 31st
day of
December of each Year, the Operating Committee shall agree upon and
adopt a Work Programme and Budget for the subsequent Year which shall
include as a minimum the work and expenditure required to be performed
or
incurred under the Contract during such Year. At the time of agreeing
upon
and adopting a Work Programme and Budget, the Operating Committee
shall
provisionally consider, but not act upon or adopt, a Work Programme
for
the next succeeding Year. As soon as possible after the adoption
of a Work
Programme and Budget, Operator shall provide a copy thereof to each
Party.
|
6.3
|
Each
Budget shall be subdivided into two major functional categories,
i.e.
exploration/ appraisal versus development & production, and within
each of those by sub-categories further broken down by programmed
activity and individual projects. Purchases of materials and
supply inventory not specifically made for an Approved Budget project
shall be budgeted as a separate item. Each individual project costing
more
than one hundred thousand United States Dollars (U.S. $100,000) per
program shall be either labeled as "Firm" or "To Mature" depending
upon
the degree of complete details furnished at the time of budget
presentation.
|
6.4
|
For
a project to be considered "Firm" within the Budget, it will require
program description, objectives, cost estimates and economic justification
sufficiently complete and in such detail as to allow thorough evaluation
of the project.
|
6.5
|
Projects
that do not meet this presentation standard at the time of Budget
formulation may also be included in the Budget to receive approval
in
principle, and shall be labeled as "To Mature". Such projects must
be
subsequently fully justified to the Operating Committee and receive
its
specific approval prior to the physical commencement of the
project.
|
6.6
|
Operator
shall submit to the parties holding a Participating Interest (except
if
such interest is being carried by another party) for prior approval
Authorization For Expenditure Requests ("AFEs") covering each individual
project within the Approved Budget in the following categories and
shall
obtain approval prior to undertaking the following
projects:
|
Page
23
6.6.1 (a) Licenses
- any initial cash payment for a license.
|
6.6.1 (b)
|
Exploration
- quarterly projects for geological and geophysical work, core drilling
and concession rentals after any initial payment, and overhead charges
applicable to geological and geophysical operations. Under
special circumstances Operator shall obtain separate approval for
major
geological or geophysical projects, which are in themselves in excess
of
one hundred thousand United States Dollars (U.S.
$100,000).
|
6.6.1 (c) Drilling:
i)
|
Each
Exploration and
|
ii) delineation
Well.
|
iii)
|
Deepening
of any Well below original target depth, involving exploratory
footage.
|
|
iv)
|
Workovers
in excess of two hundred thousand United States Dollars (U.S. $200,000)
for any Well, including deepening in to development
zones.
|
6.6.1 (d) Plant
and equipment:
i)
|
Individual
construction projects and equipment purchases exceeding one hundred
thousand United States Dollars (U.S. $100,000)
each.
|
|
ii)
|
Equipping
of Xxxxx exceeding two hundred thousand United States Dollars (U.S.
$200,000). Equipping of Xxxxx includes generally the purchase and
installation of equipment and material for lifting, heating, storing
and
otherwise handling production.
|
|
iii)
|
Projects
and purchases costing less than one hundred thousand United States
Dollars
(U.S. $100,000) each shall be approved by Operator but shall be included
for information purposes in approval requests submitted monthly to
the
Parties.
|
|
iv)
|
Storehouse
stocks - quarterly commitments for purchases of advance materials
for
projects not yet approved.
|
v) Unusual
commitments of any kind.
6.6.2
|
The
AFEs shall be based on the best current estimates in hand and shall
be
developed prior to the availability of firm contract rates. Operator
shall
also submit supplements for approval when it is anticipated that
AFEs will
be overextended by more than ten percent
(10%).
|
Page
24
6.6.3
|
Approval
of an AFE shall be confirmed within ten (10) days by returning a
signed
copy of the AFE to the Operator failing which it shall be deemed
to have
been approved.
|
Page
25
ARTICLE
7 - COSTS, EXPENSES AND DEFAULT
7.
1
|
Subject
to the provisions of Article 3, all costs and expenses incurred by
the
Operator on behalf of the Parties in carrying out Joint Operations
under
this Agreement (whether or not specifically mentioned herein) shall
be
borne and paid by the Parties in proportion to their Participating
Interests.
|
7.2
|
In
the event of any conflict between this Agreement and the applicable
provisions contained in the Accounting Procedure or in any supplemental
accounting instructions approved by the Operating Committee, the
applicable provisions in the body of this Agreement shall govern
to the
extent of such conflict.
|
7.3
|
The
terms and provisions of the Accounting Procedure may be changed or
modified as agreed in writing by the Parties from
time to time .
|
7.4
|
Audits
of Operator's accounts and records relating to the accounting made
under
this Agreement shall be conducted as provided for in the Accounting
Procedure.
|
7.5
|
Inventories
of Joint Operations assets shall be taken as provided for in the
Accounting Procedure.
|
7.6 Default
7.6.1
|
If
any Party (hereinafter called the "Defaulting Party") fails to pay
in part
or full its share of any Cash Call by the date of payment thereof
as
provided in the Accounting Procedure (the Due
Date):
|
|
a)
|
The
Operator shall notify all Parties of such default no later than the
fifth
(5th)
Business Day from the Due Date.
|
|
b)
|
The
Parties with a Participating Interest other than the Defaulting Party
(hereinafter called the "Non-Defaulting Parties") shall contribute,
as
hereinafter provided, to the amount in
default.
|
|
c)
|
If
the Defaulting Party fails to remedy its default within ten (10)
days of
the Due Date, the Operator shall notify the Non-Defaulting Parties
of the
amount in default and shall make further Cash Call to each of the
Non-Defaulting Parties, with a copy to the Defaulting Party, based
on the
proportions that such Non-Defaulting Party's Participating Interest
bears
to the total of the Participating Interest of the Non-Defaulting
Parties.
|
|
d)
|
Unless
the Operator notifies the Non-Defaulting Parties that such default
has
been remedied, each of the Non-Defaulting Parties shall pay the amount
specified in the Cash Call issued pursuant to (c) above not later
than
twenty (20) days from date of receipt of such notice, and shall continue
to pay, in addition to its share of subsequent Cash Call, the same
proportions of that part of all subsequent Cash Calls attributable
to the
Defaulting party until such time as the Defaulting Party has remedied
its
default as hereinafter provided.
|
|
e)
|
The
Operator shall promptly notify the Parties whenever a default has
been
remedied.
|
Page
26
7.6.2
|
The
Defaulting Party shall-have the right to remedy its default up to
the time
of transfer of its Participating Interest under Article 7.7 by payment
of
the amount due together with interest thereon calculated at the LIBOR
rate
on the Due Date plus two percent (2%) per annum from and including
the Due
Date for the Calendar Month in which the Due Date falls and thereafter
at
the LIBOR rate ruling on the first day of each subsequent Calendar
Month
plus two percent (2%), such interest being compounded on a Calendar
Monthly basis throughout the period of the default. All interest
received
by the Operator shall be paid to the Non-Defaulting Parties as well
as any
funds advanced in respect of the amount in default
refunded.
|
7.6.3
|
The
Non-Defaulting Parties shall at all times have a lien to the extent
of
default on the Defaulting Party's Participating Interest share and
property held pursuant to this Agreement and the Defaulting Party's
share
of Petroleum produced to secure the payment, in full, of the amount
in
default together with interest as provided in Article 7.6.2 and,
in the
event of a sale of Petroleum by the Defaulting Party, for the purpose
of
enforcing such lien, shall have the right to require the purchaser
of the
Defaulting Party's share of Petroleum to make payment in respect
thereof
to the Operator or whomsoever it nominates until the Non-Defaulting
Parties have recovered, in full, the amount in default together with
interest as provided in Article 7.6.2. Such purchaser shall be entitled
to
rely upon information given to it by the Operator for and on behalf
of the
Parties as to the amount in default and interest due, and the Operator
or
whomsoever it nominates, shall be empowered to give such purchaser
a full
and complete receipt in respect of such
payment.
|
7.6.4
|
All
sums which may become payable to Non-Defaulting Parties under Article
7.6.3 shall be paid by the Operator to them (to a designated bank
account
of the Non-Defaulting Party's choice) as soon as possible, and any
residual balance shall be paid promptly to the Defaulting Party.
Any
foreign exchange gains or losses as calculated by the Operator shall
be
for the account of the Defaulting
Party.
|
7.6.5
|
The
Defaulting Party shall remain liable and obligated for its Participating
Interest share of all costs and obligations that in any way relate
to the
abandonment of Petroleum Operations. Any sums paid in respect of
abandonment by the Non-Defaulting Parties on behalf of the Defaulting
Party (together with interest thereon pursuant to Clause 7.6.2) shall
remain a debt due and owing by the Defaulting
Party.
|
Page
27
7.7 Continuation
of Default
7.7.1
|
After
any default has continued for thirty (30) Business Days from the
date of
written notice of Default under Article 7.6 and for as long thereafter
as
the Defaulting Party remains in default on any payment due under
this
Agreement, the Defaulting Party shall not be entitled to vote on
any
matter coming before the Operating Committee during the period such
default continues. Unless agreed otherwise by the Non-Defaulting
Parties,
the voting interest of each Non-Defaulting Party shall be in the
proportion which its Participating Interest bears to the total of
the
Participating Interest of all the Non-Defaulting Parties. Any matter
requiring unanimous vote of the Parties shall be deemed to exclude
the
Defaulting Party. Notwithstanding the foregoing, the Defaulting Party
shall be deemed to have approved, and shall join with the Non-Defaulting
Parties in taking any action to maintain and preserve the
Contract.
|
7.7.2
|
In
the event that the default continues for more than ninety (90) days
(the
"Default Period") and the Defaulting Party does not pay the amount
in
default plus accrued interest by the end of such time, a proportion
of the
Participating Interest of such Defaulting Party shall, at the sole
election of the Non-Defaulting Parties be forfeited to the Non-Defaulting
Parties to reflect the ratio that the Participating Interest of the
Defaulting Party bears to the cumulative contribution made by the
Defaulting Party to the cumulative contribution made plus amount
in
default of the Defaulting Party.
|
Following
such forfeiture the reduced Participating Interest of the Defaulting Party
shall
be in accordance of the following formula, except that in the case of a default
on the first Cash Call made on a Party, ten percent (10%) of the Participating
Interest of the Defaulting Party shall stand forfeited:-
A = [B/(B+C)] x
D where:
A = the
reduced Participating Interest of the Defaulting Party.
|
B
|
=
|
the
total contributions to the Joint Operations costs of the Defaulting
Party
up to but not including the amount in
default.
|
C = the
amount in default.
D = Participating
Interest of the Defaulting Party.
Such
forfeiture shall not restore the Defaulting Party's powers andrights forfeited
under Article 7.7.1 until such Defaulting Party has paid the first Cash Call
following
including
the obligations related thereto, in proportion to their Participating Interests
or in such other proportion as unanimously agreed by them. The Defaulting Party
shall execute such documents as are necessary to transfer its Participating
Interest at its sole cost.
Page
28
7.7.3
|
Notwithstanding
the provisions of Article 7.7.2, in the event that as a result of
a
forfeiture by the Defaulting Party of a part of its Participating
Interest
pursuant to the provisions of Article 7.7.2, the remaining Participating
Interest of the Defaulting Party falls below ten percent (10%), or
as
permitted under the Contract, the Non-Defaulting Parties shall assume
such
Participating Interest of the Defaulting Party in proportion to their
Participating Interest or in such other proportion as unanimously
agreed
by them, subject to the approval of Management Committee / Govt.
of
India.
|
|
7.7.4 (i) The
Defaulting Party shall be deemed to have surrendered its Participating
Interest in the Contract and each of the Non-Defaulting Parties shall
have
the right to request the transfer to it and to acquire, with effect
from
the date of default, subject to any necessary consent of the Government,
as beneficial owner and free of any liens, charges and encumbrances,
the
Participating Interest of the Defaulting
Party.
|
|
(ii) The
Defaulting Party shall promptly join in such actions as may be required
to
obtain any necessary consent of the Government and shall do such
acts and
execute such documents as may be necessary to transfer its Participating
Interest in the Contract to the other Parties in the proportions
agreed
and all rights, title and interest derived there from in and under
this
Agreement, and in any Petroleum produced and Joint Property. All
costs and
expenses relating to such transfer shall be for the account of the
Defaulting Party.
|
|
(iii)
Each Party hereby irrevocably appoints the Operator (and any successor
Operator) to act, in the event of default by such Party in the
circumstances described in that clause, as its lawful attorney to
do such
acts and execute such documents as may be necessary to transfer all
of its
interest in accordance with the provisions
thereof.
|
7.8 Forfeiture
to be Without Prejudice to Other Remedies and No Right of
Set off
7.8.1
|
The
foregoing provisions, including but not limited to the transfer of
Defaulting Party's Participating Interest, are without prejudice
to any
other remedies or rights which the Non-Defaulting Parties may have
against
the Defaulting party with respect to a
default.
|
7.8.2
|
Each
Party acknowledges and accepts that a fundamental principle of
this Agreement is that each Party pays its Participating
Interest share of all amounts due under this Agreement as and when
required. Accordingly, any Party which becomes a Defaulting
Party undertakes that, in respect of either any exercise by the
Non-Defaulting Parties of any rights under or the application of
any of
the provisions of this Article 7, such Party hereby waives any right
to
raise by way of set off or invoke as a defense, whether in law or
equity,
any failure by any other Party to pay amounts due and owing under
this
Agreement or any alleged claim that such Party may have against Operator
or any Non-Operator, whether such claim arises under this Agreement
or
otherwise. Each Party further agrees that the nature and the
amount of the remedies granted to the Non-Defaulting Parties hereunder
are
reasonable and appropriate in the
circumstances.
|
Page
29
7.9
|
Any
Party may make an additional contribution on behalf of another Party
so as
to satisfy a Cash Call of such other Party in accordance with this
Article.
|
Page
30
ARTICLE
8 - OWNERSHIP OF ASSETS
8.1
|
Subject
to Article 2 and 8.3 hereunder, all assets acquired by Operator for
the
Joint Operations shall be owned by the Parties in proportion to their
respective contributions to the costs of acquisition of such
assets.
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8.2
|
Unless
the Operating Committee previously authorizes otherwise, Operator
shall
acquire for the Joint Operations only such assets as are reasonably
estimated to be required in carrying out the Joint Operations provided
for
in Approved Work Programmes and Budgets, or revisions thereof, it
being
intended that Operator shall not unreasonably stockpile materials
and
equipment for future use without the approval of the Operating
Committee.
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8
3
|
Whenever
Operator considers that any Joint Operations' asset is no longer
needed in
carrying out the Joint Operations, Operator shall notify the Parties
and
such surplus assets shall be disposed of as provided in Article III
of the
Accounting Procedure.
|
8.4
|
Any
Party may delegate to Operator the authority to sell and dispose
of such
asset and the proceeds of any such sale shall reflect the percentage
ownership, which the Parties have in such
assets.
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8.5
|
Operator
may also utilize in the Joint Operations equipment owned and made
available by any Party and charges to the Joint Account for use of
such
separately-owned equipment shall be made as provided
in Section 3 of the Accounting Procedure of the
Contract.
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8.6
|
In
connection with work to be carried out pursuant to an Approved Work
Programme and Approved Budget, the Operator, or any Affiliate of
the
Operator, may, subject to the provisions of the Contract, supply
all
necessary material and services whether owned, leased or otherwise,
from
its own resources and shall charge the costs thereof to the Joint
Account
in accordance with Section 3.1.8 of the Accounting Procedure of
Contract.
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Page
31
ARTICLE
9 - INFORMATION, REPORTS AND CONFIDENTIALITY
9.1 Operator
shall furnish to the Parties data, information and following
reports:
9.1.1
|
Daily
Well progress report (for Exploration and Appraisal Xxxxx) which
shall
include for the day concerned, a brief description of the
work performed, the number of feet drilled, the type and depth
of the formation penetrated, the size and landed depth of any casing
landed, the type and results of any tests made, and such other Well
information or data as the Parties from
time to time may reasonably
specify.
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9.1.2
|
During
drilling, daily reports of cumulative Well
costs.
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9.1.3
|
Monthly
report of Joint Operations, which shall include a summary of services,
and
all Exploration, Appraisal, drilling and testing operations performed
during the period covered by such
report.
|
9.1.4
|
Immediate
reports on Well developments of significance, such as blow-out or
Discovery, and immediate notice of special events of importanceto
the
Joint Operations, such as fire, accident, sabotage or acts of God
involving loss of life or serious property damage; strikes and riots;
significant competitor activities; or Government actions threatening
or
adversely affecting the rights and interests of the Parties. Such
immediate reports or notices shall be given by telex, telegraph,
telephone
or equivalent means and confirmed in
writing.
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9.1.5
|
A
comprehensive final report upon the completion of each significant
phase
in the operations.
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9.1.6
|
Such
other reports as the Parties may from time to time request as to
all lands, concessions, surface rights,
easements, rights-of-way, facilities, equipment, materials and
supplies acquired by or disposed of by Operator pursuant to this
Agreement.
|
9.1.7
|
Copies
of well logs, well completion reports, Core Analysis Reports and
the
G&G studies
|
9.2
|
Subject
to Article 9.3, the Parties shall have full access at their sole
cost and
risk at all reasonable times to all of the Joint Operations and
may:
|
9.2.1
|
Inspect
all records, books and accounts, data studies, logs, surveys, files,
maps
and other information kept by or available to
Operator;
|
9.2.2 Receive
samples of cores, Well cuttings and Petroleum;
9.2.3
|
Have
copies made (first copy at Joint Operations expense) of all data
or
information, including laboratory analyses and
maps;
|
|
Have
special studies performed by Operator (at such requesting
Party's expense, unless approved by Operating Committee) to the extent
when studies do not interfere with or delay
Operator's performance of its duties under this Agreement;
and
|
9.2.5
|
Request
and receive from Operator forecasts, schedules, statements or status
reports where reasonable and where not otherwise provided for in
this
Agreement, preparation costs of which shall be for such Party's
account unless approved by the Operating
Committee.
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9.3
|
Nothing
in this Agreement shall require any Party to divulge proprietary
technology to the other Parties, and subject to Article 22 of the
Contract, the following principles as to utilization and protection
of
proprietary technology in the Joint Operations shall
apply:
|
9.3.1
|
Operator
may from time to time utilize its proven proprietary technology at
Joint
Operations expense in the conduct of Joint Operations and subject
to
Article 9.3.2, may take such reasonable precautions as Operator deems
necessary or desirable (including agreement with or commitments from
its
employees, contractors and agents against such disclosure) to prevent
disclosure of or entitlement to its proprietary technology including
improvements and inventions resulting from use hereunder to
others.
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9.3.2
|
Non-Operators
shall have access to basic field data obtained through Operator's
utilization of such proprietary technology and to
final maps, data, information and conclusions resulting from any
such
utilization, with entitlement to copies of such basic and final data,
interpretations, maps, information and conclusions as provided for
in this
Agreement.
|
9.3.3
|
Any
Party may at its own expense utilize its proprietary technology in
developing from Joint Operations field data whatever information
or
conclusions it desires without the obligations to disclose such
information, its result or conclusions to the Parties without adversely
affecting Joint Operations.
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9.3.4
|
Each
Party utilizing proprietary technology as mentioned in this Article
9.3
shall hold all other Parties free and harmless from all third party
claims, charges and damages arising out of such utilization,
including but not limited to claims based on patent
infringement.
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9.3.5
|
Should
future difficulties or controversies between the Parties occur regarding
application of the principles of this Article 9.3, the Parties shall
consult in good faith with the view to best possible utilization
of
proprietary technology in the Joint Operations, giving due regard
to each
party's right to protect the proprietary nature of its technology
and the
Parties' right and need for access to data and information as well
as to
final results for justifiable determinations of programmes and
budgets.
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Page
32
9.4
|
Except
as otherwise provided herein, each Party undertakes to treat as
confidential, and prevent disclosure to any third party of any and
all
information and data obtained in the Joint Operations and relating
to the
Contract Area or to operations undertaken pursuant to this
Agreement.
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9.4.1
|
In
consideration a Party (Disclosing Party) allowing the receiving Party
(Receiving Party) access to the Confidential Information, the Receiving
Party agrees to keep the Confidential Information confidential and
acknowledges that the Disclosing Party considers the information
disclosed
to the Receiving Party to be proprietary. The Receiving Party shall
not
disclose the Confidential Information to any one except in accordance
with
the following terms:
|
|
a)
|
The
Receiving Party agrees to keep the Confidential Information strictly
confidential and subject to sub-clause (b) to (d) inclusive, below,
agrees
not to disclose such Confidential Information to any person in any
manner
or mode whatsoever (including by means of photocopy or reproduction)
without the prior written consent of the Disclosing Party, such consent
not being unreasonably withheld.
|
|
b)
|
The
Receiving Party may disclose the Confidential Information without
the
prior written consent of the Disclosing Party to the extent such
information
|
|
i)
|
is
already in the public domain or comes into the public domain other
than
through a breach of the terms of this Agreement by the Receiving
Party or
by any person to whom disclosure of Confidential Information by the
Receiving Party is permitted pursuant to sub-Clause (c) or (d) below;
or
|
|
ii)
|
is
required to be disclosed under applicable law or by a governmental
order,
decree, regulation or rule binding upon the Receiving Party provided
that,
as soon as practicable, the Receiving Party shall give prior written
notice to the Disclosing Party that such disclosure is required and
consults with the Disclosing Party on whether, and if so
what action should be taken to resist the
requirement.
|
|
c)
|
The
Receiving Party may disclose the Confidential Information without
the
prior written consent of the Disclosing Party to the Receiving Party's
Affiliate.
|
|
d)
|
The
Receiving Party may also disclose the Confidential Information without
the
prior written consent of the Disclosing Party to such of the following
persons who have a clear need to access it for the purpose of evaluating,
negotiating or advising on matters arising out of this Agreement
e.g.
employees, officers and directors of the Receiving
Party.
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Page
33
|
e)
|
The
Receiving Party may also disclose the Confidential Information without
prior
intimation to any professional adviser
or financial institution retained by the Receiving Party for
the purpose of
|
evaluating
the Confidential Information or evaluating, financing, negotiating
or
advising on matters arising out of this
Agreement.
|
|
f)
|
Prior to making any disclosure
of Confidential Information as permitted under sub-Clause (c),
(d) or (e) above, the Receiving Party shall procure an undertaking
that
the proposed recipient of
such Confidential Information is made aware of the
terms of this Article and adheres to and be bound by the terms of
this
Article as if they were a party to the extent of Agreement
contained in this Article.
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9.4.2
|
Notwithstanding anything
contained hereinabove, the provisions of this Article shall
continue and bind the Parties for a period not exceeding five(5)
years
from the date of termination of the
Agreement.
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Page
34
ARTICLE
10 - WORK PROGRAMME COMMITMENT
The
Parties shall carry out the Work Programme as given in the Contract. In case
of
Minimum Work Programme, the Operator is authorized to take all decisions and
actions necessary as per the commitment made in the
Contract.
Page
35
ARTICLE
11 - RELINQUISHMENT
11.1
|
When
it becomes necessary pursuant to the terms of the Contract to relinquish
portions of the Contract Area:
|
|
11.1.1
The Parties holding a Participating Interest shall make reasonable
best
efforts to reach agreement on the area proposed to be relinquished
one hundred twenty (120) days before
such relinquishment is required to be made. If such Parties are unable
to
reach unanimous agreement ninety (90) days prior to the date on which
the
area or areas must be relinquished, the following procedure shall
be
observed, provided all selections of the area or areas to be relinquished
are within the requirements and restrictions of the
Contract:
|
|
a)
|
In
the event Parties holding at least seventy percent (70%) of
the total Participating Interests agree on an area or areas to be
relinquished, such area or areas shall be
relinquished.
|
|
b)
|
In
respect to any area or areas to be relinquished on which the Parties
holding at least seventy percent (70%) of the
total Participating Interests cannot agree, each Party shall
select a proportionate part of the remaining area or areas to be
retained
equal to its Participating
Interest.
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11.1.2
|
The
Operator shall proceed in a timely manner to relinquish the area
or areas
determined in accordance with the foregoing procedures and pursuant
to Act
and Rules.
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Page
36
ARTICLE
12 - WITHDRAWAL
12.1
|
Any
Party may withdraw from this Agreement at any time provided that
during
any Exploration Phase, no Party shall withdraw until all the Exploration
Operations obligations have been met and
completed.
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12.2
|
The
Party desiring to withdraw (hereinafter called the "Withdrawing Party")
shall give notice of intention to withdraw to the other Parties at
least
forty five (45) days in advance of the date of withdrawal and such
notice
shall contain:
|
12.2.1
|
Designation
of the effective date for withdrawal, which shall be the last day
of a
Calendar Month;
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12.2.2
|
An
offer to assign, without compensation, to the other Parties having
a
Participating Interest all of the Withdrawing Party's right, title
and
interest in the Contract Area and all Joint Property; such offer
to be
conditioned on the receiving Parties assumption, subject to Article12.4,
of all future obligations related to the right, title and interest
offered.
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12.2.3
|
The
other Parties shall have thirty (30) days from date of receipt of
such
notice to notify the Withdrawing Party whether they accept the offer
and
elect to receive the assignment provided for in Article
12.2.2.
|
|
(a)
|
If
one or more of the other Parties having a Participating Interest
give
notice of acceptance and election to receive such an assignment within
such thirty (30) day period, the Parties shall promptly execute and
deliver and do and perform all acts and things necessary and appropriate
to effect such assignment. If more than one of the other Parties
elect to
receive the assignment, the Withdrawing Party interest shall be
apportioned among the assignees in the proportion that the Participating
Interest of each (prior to assignment) bears to the total of the
Participating Interest of all such assignees unless another apportionment
is agreed to by all the assignees.
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|
(b)
|
If
none of the other Parties having a Participating Interest gives notice
of
its acceptance and election to receive such an assignment within
the
thirty (30) day period, the Parties shall promptly cause Operator
to wind
up the Joint Operations (unless the existing Parties mutually agree
otherwise to continue the Joint Operations) and the Parties shall
do and
perform all acts and things necessary and appropriate to this end,
including termination of the Contract, subject to approval of Operating
Committee. In such event all Parties, including the
Withdrawing Party, shall continue to be responsible for their
respective ParticipatingInterest share of all financial and other
obligations hereunder and under the Contract until the Contract is
terminated without further obligation of the Parties and final settlement
has been made among the Parties.
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Page
37
12.2.4
|
In
the event of an assignment under Article 12.2.3 (a), the Withdrawing
Party
shall be responsible for its financial obligations accrued under
the
Contract and this Agreement until the Contract
is terminated, including but not limited to payment of its full
share of costs and expenses as to any particular Well, geophysical
survey
or other individual project investment for which they were committed
either under the terms of the Contract or through an Approved Work
Programme or Budget which has been commenced (or funds therefor
committed) before such date of notice of withdrawal, even though
completion thereof may post date such date of notice, except to the
extent
such obligations shall be assumed or paid by any third party which
acquired from the remaining Party or Parties within three
(3) months of the effective date of withdrawal all or part of
the interest assigned by the Withdrawing Party. The Withdrawing Party
shall not be obligated for any obligations or commitments undertaken
by
the remaining Parties after the date of giving notice of withdrawal,
but
the Withdrawing Party shall be obligated for its Participating Interest
share of any obligations which may accrue under the Contract prior
to the
date of notice.
|
12.
3
|
The
Withdrawing Party shall remain liable and obligated for its Participating
Interest share of all expenditure accruing to the Joint Account under
any
|
relevant
programme and budget prior to the date on which the notice of withdrawal
was given, and also to pay all reasonable costs and expenses incurred
by
the other Parties in connection with such
withdrawal.
|
12.4
|
A
Withdrawing Party shall not be allowed to withdraw from the Contract
and
this Agreement if its Participating Interest is subject to any lien,
charges or encumbrance other than those arising under the Contract
unless
the other Parties are willing to accept the assignment subject to
the
additional lien, charges or
encumbrance.
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12.5
|
In
the event a Party or Parties elect to receive an assignment of the
Withdrawing Party's interest, all cost of the assignment, including
notarial and registration fees and transfer taxes, shall be the sole
obligation of such
|
Party
or Parties in the proportion of the Participating Interest each receives
to the total Participating Interest assigned and such Party or Parties
shall indemnify the Withdrawing Party against and hold it harmless
from
any further costs, expenses or liabilities incurred under the Contract
from the date of notice.
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Page
38
ARTICLE
13 - SALE, TRANSFER AND ASSIGNMENT
|
13.1
|
The
right to sell, assign or transfer a Participating Interest (including
any
Participating Interest in accordance with any Carried Interest Agreements
/ Arrangements), in whole or in part, shall be subject to the consent
of
other Parties which consent shall not be unreasonably withheld and
to the
terms of the Contract and Article 11 and 12 and the
following provisions of Article
13.
|
|
13.2
|
Any
Party shall have the right at any time, with or without
compensation, to sell ,transfer and/or assign to an Affiliate all
or part
of its right, title and interest in the Contract Area and in and
under this Agreement provided that (i) proposed assignee
expressly assumes all of the Party's obligation with respect to such
Participating Interest; (ii) such Affiliate is
technically and financially competent to undertake the obligations
of the
Assignor and (iii) Assignee provides an unconditional bank guarantee
to
the extent of committed and additional Work
Programme.
|
13.3 Obligation
to make First Offer
13.3.1
|
If any
Party ("Transferring Party") desires to Transfer to any person other
than
an Affiliate, all or any part of its Participating
Interest ("Sale Interest"), it shall notify each of
the other Parties (“Non Transferring Parties”) in writing of its desire to
Transfer such Sale Interest by way of a written notice (“Sale
Notice”) and the following conditions shall apply
:
|
A. Where
the Transferring Party has a Third Party Offer
|
(i)
|
Where
the Transferring Party has a bona fids offer from a responsible
prospective purchaser (herein referred to as “Third Party Offer”) then the
Sale Notice shall set forth the key terms and conditions of such
Third
Party Offer. The Non Transferring Parties receiving such Sale
Notice shall have the right and option for a period of 30
(thirty) Business Days from the date of receipt of the Sale Notice
(“Offer
Period”) within which to agree, by a written notice (“Acceptance
Notice”) to acquire the Sale Interest in the proportion that
their respective Participating Interests bear to the total Participating
Interests of the Non Transferring Parties or in such other proportion
that
they may agree (within the Offer Period), at the price and upon the
key
terms and conditions as set forth in such Sale Notice or on terms
equivalent to the key terms set forth in the Sale Notice, and these
equivalent terms shall be indicated in the Acceptance
Notice. Upon receipt of the Acceptance Notice(s) for all or
part of the Sale Interest, the agreement for sale shall be completed
and
the Transferring Party shall transfer and complete the sale of
the Sale Interest specified in the Acceptance Notice(s), to such
Non
Transferring Party(ies) within the period specified in Article
13.3.2 below and in the event the Non Transferring Party(ies) failes
to
complete such transfer within such
period, the Transferring Party shall be entitled to accept the Third Party Offer and
complete the sale to such Third Party on the same
terms and conditions as those set out in the Third Party
Offer. If no Non Transferring Party or Parties gives an
Acceptance Notice that it or they elect or elects to acquire the
Sale
Interest within the Offer Period or alternatively a Non Transferring
Party
or Parties confirm in writing that it or they are not interested
in
issuing an Acceptance Notice , then the Transferring Party shall
be free
to accept the Third Party Offer and complete the sale on the same
terms
and conditions as those set out in the Third Party
Offer.
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Page
39
|
(ii)
|
In
the event only on of the Non Transferring Parties gives an Acceptance
Notice, within the Offer Period, that it elects to acquire the Sale
Interest then the Transferring Party shall transfer and complete
the sale
of the Sale Interest specified in the Acceptance Notice, to such
Non
Transferring Party within the period specified in Article 13.3.2
below and in the event the Non Transferring
Party fails to complete such transfer within such period, the Transferring
Party shall be entitled to accept the Third Party Offer
and complete the sale to such third party on the same terms and
conditions as those set out in the Third Party
Offer.
|
|
(iii)
|
The
Transferring Party shall be entitled to sell such part of the Sale
Interest in respect of which Acceptance Notices have not been received,
to
the third party from whom the Third Party Offer has been received,
on
terms and conditions specified in the Third Party
Offer.
|
|
B.
|
Where
the Transferring Party does not have a Third Party
Offer
|
|
(i)
|
Where
the Transferring Party does not have a Third Party Offer, then the
Sale
Notice shall request offers from the Non Transferring Parties for
acquisition of the Sale Interest. Pursuant to such Sale Notice,
each of the Non Transferring Parties shall have a period of 30 (thirty)
Business Days from the date of receipt of the Sale Notice to indicate
if
they are interest in acquiring all or part of the Sale Interest (“Proposal
Period”) and shall accordingly, within the Proposal Period, make a firm
and definite offer in writing (“Offer Notice”) to the Transferring
Party. The Offer Notice shall contain the terms of the offer,
including as to price, and shall also indicate whether the offer
is for
purchase of all or part of the Sale
Interest.
|
|
(ii)
|
In
the event more than one of the Non Transferring Parties send Offer
Notices, then the Transferring Party shall be entitled to consider
only,
what it considers, the most favorable, beneficial and commercially
acceptable offer(s) and shall negotiate such offer with the concerned
Non
Transferring Party or Parties, as the case may
be.
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Page
40
|
(iii)
|
Subject
to sub-clause (v) below, in the event the Transferring Party arrives
at an
agreement with one or more of the Non Transferring Parties, then
the
agreement for sale of the Sale Interest shall stand completed and
the
Transferring Party shall transfer and complete the sale of the
Participating Interest to such Non Transferring Party(ies) within
the
period specified in Article 13.3.2 below and in the event a Non
Transferring Party fails to complete such transfer within such period,
the
Transferring Party shall be entitled to transfer and sell the
Participating Interest to a third
party.
|
|
(iv)
|
In
the event the terms offered in the Offer Notices are not acceptable
to the
Transferring Party, then the Transferring Party shall be entitled
to
negotiate with a third party to explore whether it can obtain better
terms
and if the Transferring Party then receives a Third Party Offer,
the
Transferring Party shall issue a Sale Notice in terms of Article
13.3.1
A(i) above to the Non Transferring Parties and allow them an opportunity,
within 15( fifteen) days of the aforesaid Sale Notice, to match such
Third
Party Offer and in the vent the Non Transferring Parties match such
Third
Party Offer, then the agreement for sale shall be completed and the
entire
or part of the Sale Interest, as the case may be, shall be sold to
such
Non Transferring Parties in the proportion that
their respective Participating Interests bear to the
total that they may agree,
and the balance Sale Interest, if any, may be transferred to such
third
Party that has made the Third Party Offer. This sale to the Non
Transferring Parties shall be completed within the period specified
in
Article 13.3.2 below and in the event a Non Transferring Party fails
to
complete such transfer within such period, the Transferring Party
shall be
entitled to accept the Third Party Offer and complete the sale on
the same
terms and conditions as those set out in the Third Party
Offer.
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|
(v)
|
In
the event the Transferring Party arrives at an understanding on the
terms
and conditions with one or more of the Non Transferring Parties (“Final
Non Transferring Parties”) for sale of the entire or part of the Sale
Interest, then, before completing the agreement with such Non Transferring
Party or Parties, the Transferring Party shall be entitled to negotiate
with a third party to explore whether it can obtain better terms
and if
the Transferring Party then receives a Third Party Offer, the Transferring
Party shall issue a Sale Notice in terms of Article 13.3.1 A(i) above
to
the Final Non Transferring Parties and allow them an opportunity,
within
15 (fifteen) days of the aforesaid Sale Notice, to match such Third
Party
Offer and in the event the Final Non Transferring Parties match such
Third
Party Offer, then the agreement for sale shall be complete and the
entire
or part of the Sale Interest, as the case may be, shall be sold
to such Final Non Transferring Parties in the proportion that their
respective Participating Interests bear to the total Participating
Interests of the Non Transferring Parties or in such other proportion
that
they may agree, and the balance Sale Interest, if any, may be transferred
to such third Party that has made the Third Party Offer. This sale
to the
Final Non Transferring Parties shall be completed within the period
specified in Article 13.3.2 below and in the event a Final Non
Transferring Party fails to complete such transfer within such period,
the
Transferring Party shall be entitled to accept the Third Party Offer
and
complete the sale on the same terms and conditions as those set out
in the
Third Party Offer.
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|
(vi)
|
Any
transfer of Participating Interest to a third party in terms of this
Article 13.3.1B shall be at a price and on other commercial terms
no more
favorable to the third
|
Page
41
party
than the price and terms of proposals received from the Non Transferring Parties
or Final Non Transferring Parties, as the case may be.
13.3.2
|
Any
transfer of Participating Interest by a Transferring Party to a Third
Party or to a Non Transferring Party or to a Final Non Transferring
Party,
as the case may be, in terms of Article 13.3.1 above, shall be completed,
other than such time period as may be required for receipt of Government
approvals, within 120 days following the end of the Offer Period/
Proposal
Period (as the case may be).
|
13.3.3
|
Notwithstanding
anything contained herein, any Party whose Participating Interest
is being
carried by any other Party shall not have any right of first refusal
as
per the terms of this Article 13.3 against any other
Party.
|
13.3.4
|
The
Parties intend to apply the principles of Article 13.3in good faith
and be
bound by the spirit as well as the terms thereof and, in particular
but
without limitation a fair cash equivalent shall be placed on any
non-cash
consideration offered to the Transferee by an other Party or a third
party, supported, if requested by any Party, by a report from an
internationally recognized independent chartered
accountant
|
13.4
|
No
assignment, sale or transfer of Participating Interest shall be effective
unless the assignee/transferee shall
|
have
agreed in writing to be bound by all the terms and provisions contained
in
this Agreement and the Contract which shall include the assumption
of all
the assigning Party's rights and obligations under this Agreement
and the
Petroleum Exploration License (PEL) on and from the date of the
Assignment.
|
13.5
|
Each
Party and third party where relevant, shall bear its own costs related
to
the transaction of sale and purchase of Participating Interest as
envisaged in this Article 13. All
costs, charges, fees, taxes, cess, duties etc. leviable
on the sale, transfer and/or assignment provided for in this Article
13,
including notaries and registration fees, tax or other expense
of whatsoever kind and nature, shall be the to the account of the
buyer of
the Participating Interest.
|
13.6
|
All
the Parties shall execute and deliver all documents, do and perform
all
acts and things necessary and appropriate to validly effect the sales
and
assignments provided in this Article
13.
|
13.7
|
Nothing
contained in this Article 13 shall prevent a Party from mortgaging,
pledging, charging or otherwise encumbering all or part of its interest
in
the
|
Contract
Area and in and under this Agreement for the purpose of security
relating
to raising of finance so as to meet its obligations under this Agreement
provided that:
|
(1) such
Party shall remain liable for all obligations relating to such
interest;
|
(2)
|
the
encumbrance shall be subject to any necessary approval of the
Government;
|
|
(3)such
Party shall ensure that any such mortgage, pledge, charge or
encumbrance shall be expressed to be without prejudice and subject
to the
provisions of this
Agreement.
|
Page
42
|
(4)
|
any
encumbrance sought to be created shall be expressly subordinated
to the
rights or the other Parties under the Contract and this
Agreement
|
13.8
|
Notwithstanding
any other provision of Article 13, an assignment or transfer shall
not be
made where the Participating Interest to be retained by the proposed
assignor or the percentage interest of assignee shall be less than
ten per
cent (10%) of the total Participating Interest of all the Parties
or as
provided under the Contract, except where the Government, on the
recommendations of the Management Committee may, in special circumstances,
so permit.
|
Page
43
ARTICLE
14 - FORCE MAJEURE
14.1
|
Any
non-performance or delay in performance by any Party hereto of any
of its
obligations under this Agreement or in fulfilling any condition of
any
license or lease granted to such Party, or in meeting any requirement
of
the Act, the Rules or any license or lease issued thereunder, shall,
except for the payment of money due under this Agreement or under
the Act
and the Rules or any law, be excused if, and to the extent that,
such
non-performance or delay in performance is caused by Force Majeure
as
defined in this Article.
|
14.2
|
For
the purpose of this Agreement, the term Force Majeure means any cause
or
event, other than the non-availability of funds, whether similar
to or
different from those enumerated herein, lying beyond the reasonable
control of, and unanticipated or enforceable by, and not brought
about at
the instance of, the Party claiming to be affected by such event,
or
which, if anticipated or foreseeable, could not be avoided or provided
for, and which has caused the non-performance or delay in performance.
Without limitation to the generality of the foregoing, the term Force
Majeure shall include natural phenomena or calamities, earthquakes,
typhoons, fires, wars declared or undeclared, hostilities, invasions,
blockades, riots, strikes, insurrection and civil
disturbance.
|
14.3
|
Where
a Party is claiming suspension of its obligations on account of Force
Majeure, it shall promptly, but in no case later than seven (7) days
after
the occurrence of the event of Force Majeure, notify the other Parties
in
writing giving full particulars of the Force Majeure, the estimated
duration thereof, the obligations affected and the reasons for its
suspension.
|
14.4
|
A
Party claiming Force Majeure shall exercise reasonable diligence
to seek
to overcome the Force Majeure event and to mitigate the effects thereof
on
the performance of its obligations under this Agreement provided,
however,
that the settlement of strikes or differences with employees shall
be
within the discretion of the Party having the difficulty. The Party
affected shall promptly notify the other Parties as soon as the Force
Majeure event has been removed and no longer prevents it from complying
with the obligations which have been suspended and shall thereafter
resume
compliance with such obligations as soon as
possible.
|
14.5
|
The
Party asserting the claim of Force Majeure shall have the burden
of
proving that the circumstances constitute valid grounds of Force
Majeure
under this Article and that such Party has exercised reasonable diligence
and efforts to remedy the cause of any alleged Force
Majeure.
|
14.6
|
Where
Party is prevented from exercising any rights or performing any
obligations under this Agreement due to Force Majeure, the time for
the
performance of the obligations affected thereby and for performance
of any
obligation or the exercise of any right dependent thereon, and the
term of
any Exploration Phase or this Agreement, may be extended by such
additional period as may be agreed between the Parties. In case of
difference, the decision of operator shall be final and
binding.
|
Page
44
14.7
|
Notwithstanding
anything contained hereinabove, if an event of Force Majeure occurs
and is
likely to continue for a period of thirty (30) days, the Parties
shall
meet to discuss the consequences of the Force Majeure and the course
of
action to be taken to mitigate the effects thereof or to be adopted
in the
circumstances. In case no solution emerges, matter shall be
referred for decision by a sole expert in terms of the Contract who
shall
decide the matter within three (3) months from the date of acceptance
to
act as sole expert.
|
Page
45
ARTICLE
15 - OPERATIONS BY LESS THAN ALL PARTIES
15.1
|
Limitation
on Applicability
|
|
(A)
|
Subject
to the Contract, any operation beyond the Minimum Work Obligation
can be
proposed as a Joint Operation. In the event of difference of
opinion among the Parties for conducting the operation as Joint Operation,
the same may be conducted as Exclusive Operation by the willing Parties
subject to provisions of Article 15. All operations shall be
conducted as Joint Operations under Article 5, or as Exclusive Operations
under this Article. No Exclusive Operation shall be conducted which
conflicts with Joint Operations. Determination as to whether or
not a conflict exists shall be made by the unanimous vote of the
Operating
Committee. If the Operating Committee cannot agree, the matter
can be referred to a sole expert or
arbitration.
|
|
(B)
|
Except
as otherwise herein provided, operations which are required to fulfil
the
Minimum Work Obligations must be proposed and conducted as Joint
Operations under Article 5, and shall not be proposed or conducted
as
Exclusive Operations under this
Article.
|
|
(C)
|
No
Party may propose or conduct an Exclusive Operation under this Article,
unless and until such Party has properly exercised its right to propose
an
Exclusive Operation pursuant to this
Agreement.
|
15.2 Procedure
to Propose Exclusive Operations
(A)
|
Subject
to Article 15.1, if any Party proposes to conduct an Exclusive Operation,
such Party shall give notice of the proposed operation to all
Parties. Such notice shall specify that such operation is
proposed as an Exclusive Operation, the work to be performed, the
location, the objectives, and estimated cost of such
operation.
|
(B)
|
Any
Party entitled to receive such notice shall have the right to participate
in the proposed operation.
|
|
(1)
|
For
proposals to deepen, test, complete, sidetrack, plug back, recomplete
or
rework involving the use of a drilling rig that is standing by in
the
Contract Area, any such Party wishing to exercise such right must
so
notify Operator within twenty-four (24) hours after receipt of the
notice
proposing the Exclusive Operation.
|
|
(2)
|
For
proposals to develop a Discovery, any Party wishing to exercise such
right
must so notify the Party proposing to develop within twenty (20)
days
after receipt of the notice proposing the Exclusive
Operation.
|
Page
46
|
(3)
|
For
all other proposals, any such Party wishing to exercise such right
must so
notify Operator within ten (10) days after receipt of the notice
proposing
the Exclusive Operation.
|
(C)
|
Failure
of a Party to whom a proposal notice is delivered to properly reply
within
the period specified above shall constitute an election by that Party
not
to participate in the proposed
operation.
|
(D)
|
If
all Parties properly exercise their rights to participate, then the
proposed operation shall be conducted as a Joint Operation. The
Operator shall commence such Joint Operations as promptly as practicable
and conduct it with due diligence.
|
(E)
|
If
less than all Parties entitled to receive such proposal notice properly
exercise their rights to participate,
then:
|
|
(1)
|
The
Party proposing the Exclusive Operation, together with any other
Consenting Parties, shall have the right exercisable for the applicable
notice period set out in Article 15.2(B), to instruct Operator (subject
to
Article 15.9(G)) to conduct the Exclusive
Operation.
|
|
(2)
|
If
the Exclusive Operation is conducted, the Consenting Parties shall
bear
the sole liability and expense of such Exclusive Operation with each
Consenting Party bearing a fraction of such liability and expense,
the
numerator of which is such Consenting Party's Participating Interest
as
stated in Article 3.1 and the denominator of which is the aggregate
of the
Participating Interests of the Consenting Parties as stated in Article
3.1, or in such other proportion totaling one hundred percent (100%)
of
such liability and expense as the Consenting Parties may
agree.
|
|
(3)
|
If
such Exclusive Operation has not been commenced within one hundred
and
eighty (180) days (excluding any extension specifically agreed by
all
Parties or allowed by the force majeure provisions of Article 14),
the
right to conduct such Exclusive Operation shall terminate. If
any Party still desires to conduct such Exclusive Operation, written
notice proposing such operation must be resubmitted to the Parties
in
accordance with Article 5, as if no proposal to conduct an Exclusive
Operation had been previously made.
|
15.3
|
Responsibility
for Exclusive Operations
|
|
(A)
|
The
Consenting Parties shall bear in accordance with the Participating
Interests agreed under Article 15.2(E) the entire cost and liability
of
conducting an Exclusive Operation and shall indemnify the Non-Consenting
Parties from any and all costs and liabilities incurred incident
to such
Exclusive Operation (including but not limited to all costs, expenses
or
liabilities for environmental, consequential, punitive or any
other similar indirect damages or losses arising from business
interruption, reservoir or formation damage, inability to produce
petroleum, loss of profits, pollution control and environmental
amelioration or rehabilitation) and shall keep the Contract Area
free and
clear of all liens and encumbrances of every kind created by or arising
from such Exclusive Operation.
|
Page
47
|
(B)
|
Notwithstanding
Article 15.3(A) each Party shall continue to bear its Participating
Interest share of the cost and liability incident to the operations
in
which it participated, including but not limited to plugging and
abandoning and restoring the surface location, but only to the extent
those costs were not increased by the Exclusive
Operation.
|
15.4
|
Consequences
of Exclusive Operations
|
|
(A)
|
With
regard to any Exclusive Operation, for so long as a Non-Consenting
Party
has the option to reinstate the rights it relinquished under Article
15.4(B) below, such Non-Consenting Party shall be entitled to have
access
concurrently with the Consenting Parties, to all data and other
information relating to such Exclusive Operation, other than G&G Data
obtained in an Exclusive Operation. If a Non-Consenting Party desires
to
receive and acquire the right to use such G&G data, then such
Non-Consenting Party shall have the right to do so by paying to the
Consenting Parties its Participating Interest share as set out in
Article
3.1 of the cost incurred in obtaining such G&G
Data.
|
|
(B)
|
With
regard to any Exclusive Operations and subject to Article
15.4(C) and Article 15.7 below, each Non-Consenting Party shall
be deemed to have relinquished to the Consenting Parties, and the
Consenting Parties shall be deemed to own, in proportion to their
respective Participating Interests in any Exclusive
Operation:
|
|
(1)
|
All
of each such Non-Consenting Party's right to participate in
further operations in the well or deepened or sidetracked portion
of a
well in which the Exclusive Operation was conducted and any Discovery
made
or appraised in the course of such Exclusive Operation;
and
|
|
(2)
|
All
of each such Non-Consenting Party's right pursuant to the
Contract to take and dispose of Hydrocarbons produced and
saved:
|
|
(a)
|
From
the well or deepened or sidetracked portion of a well in which such
Exclusive Operation was conducted,
and
|
|
(b)
|
From
any xxxxx drilled to appraise or develop a Discovery made or appraised
in
the course of such Exclusive
Operation.
|
|
(C)
|
A
Non-Consenting Party shall have the following and only the following
options to reinstate the rights it relinquished pursuant to Article
15.4(B):
|
Page
48
|
(1)
|
If
the Consenting Parties decide to appraise a Discovery made in the
course
of an Exclusive Operation, the Consenting Parties shall submit to
each
Non-Consenting Party shall submit to each Non-Consenting Party the
approved appraisal program. For thirty (30) days (or
forty-eight (48) hours if the drilling rig which is to be used in
such
appraisal program is standing by in the Contract Area) from receipt
of
such appraisal program, each Non-Consenting Party shall have option
to
reinstate the rights it relinquished pursuant to Article 15.4(B)
and to
participate in such appraisal
program. The Non-Consenting Party may
exercise such option by notifying Operator within the period specified
above that such Non-Consenting Party agrees to bear its Participating
Interest share of the expense and liability of such appraisal program,
to
pay the lump sum amount as set out in Article 15.5(A) and to pay
the Cash
Premium as set out in Article
15.5(B).
|
|
(2)
|
If
the Consenting Parties decide to develop a Discovery made or appraised
in
the course of an Exclusive Operation, the Consenting Parties shall
submit
to the Non-Consenting Parties a Development Plan substantially in
the form
intended to be submitted to the Government under the
Contract. For sixty (60) days from receipt of such Development
Plan or such lesser period of time prescribed by the Contract, each
Non-Consenting Party shall have the option to reinstate the rights
it
relinquished pursuant to Article 15.4(B) and to participate in such
Development Plan. The Non-Consenting Party may exercise such
option by notifying the Party proposing to act as Operator for
such Development Plan within the period specified above that such
Non-Consenting party agrees to bear its Participating Interest share
of
the liability and expense of such Development Plan and such future
operating and producing costs, to pay the lump sum amount as set
out in
Article 15.5(A) and to pay the Cash premium as set out in Article
15.5(B).
|
|
(D)
|
If
a Non-Consenting Party does not properly and in a timely manner exercise
such option, including paying in a timely manner in accordance with
Article 15.5 all lump sum amounts and Cash Premiums,if any, due to
the
Consenting Parties, such Non-Consenting Party shall have
forfeited the options as set out in Article 15.4(C) and the right
to
participate in the proposed program, unless such program, plan or
operation is materially modified or expanded. (In which case a new
notice
and option shall be given to such Non-Consenting Party under Article
15.4(C)).
|
|
(E)
|
A
Non-Consenting Party shall become a Consenting Party with regard
to an
Exclusive Operation at such time as the Non-Consenting Party gives
proper
notice pursuant to Article 15.4(C); provided that such Non-Consenting
Party shall in no way be deemed to be entitled to any lump sum amount
Cash
Premium paid incident to such Exclusive Operation. The
Participating Interest of such Non-Consenting Party
in such Exclusive Operation shall be its Participating Interest set
out in
Article 3.1. The Consenting Parties shall contribute in
proportion to their respective Participating Interests in such Exclusive
Operation, the Participating Interest of the Non-Consenting party.
If all
Parties participate in the proposed operation, then
such operation shall be conducted as a Joint Operation pursuant
to Article 5.
|
Page
49
|
(F)
|
If
after the expiry of the period in which a Non-Consenting Party may
exercise its option to participate in a Development Plan, the Consenting
Parties desire to proceed with the said Development Plan, the Party
chosen
by the Consenting Parties to act as Operator for such development
shall
give notice to the Government under the appropriate provision of
the
Contract requesting a meeting to advise the Government that the Consenting
Parties consider Discovery to be a Commercial
Discovery. Following such meeting such Operator for such
development shall apply for Development Area. Unless the Development
Plan
is materially modified or expanded prior to the commencement of operations
under such plan, each Non-Consenting Party to such Development Plan
shall
not participate in such Development Area covering such
development and shall forfeit all interests in such Development
Area. Such Non-Consenting Party shall be deemed to have
withdrawn from this Agreement to the extent it relates to such
Development Area, even if the Development Plan is modified or expanded
subsequent to the commencement of operations under such Development
Plan
and shall be further deemed to have forfeited any right to participate
in
the construction and ownership of facilities outside such Development
Area
designed solely for the use of such Development
Area.
|
15.5
|
Premium
to Participate in Exclusive
Operations
|
|
(A)
|
Within
thirty (30) days of the exercise of its option under Article 15.4(C),
each
such Non-Consenting Party shall pay in immediately available funds
to the
Consenting Parties who took the risk of such Exclusive Operations
in
proportion to their respective Participating Interests in such Exclusive
Operations a lump sum amount payable in the currently designated
by such
Consenting Parties. Such lump sum amount shall be equal to such
Non-Consenting Party's Participating Interest share of all liabilities
and
expenses, including overhead, that were incurred in Exclusive Operations
relating to the Discovery, or Well, as the case may be, in which
the
Non-Consenting Party desires to reinstate the rights it relinquished
pursuant to Article 15.4(B), and that were not previously paid by
such
Non-Consenting Party.
|
|
(B)
|
In
addition to Article 15.5(A), if a Cash Premium is due, then within
thirty
(30) days of the exercise of its option under Article 15.4(C) each
such
Non-Consenting Party shall pay in immediately available funds, in the
currency designated by the Consenting parties who took the risk
of such Exclusive Operations, to such Consenting Parties in
proportion to their respective Participating Interests a Cash Premium
equal to the total of:
|
|
(1)
|
Two
hundred percent (200%) of such Non-Consenting Party's Participating
Interest share of all liabilities and expenses, including overhead,
that
were incurred in any Exclusive Operations relating to the obtaining
of the
portion of the G&G Data which pertains to the Discovery, and that were
not previously paid by such Non-Consenting Party;
plus
|
Page
50
|
(2)
|
Four
Hundred percent (400%) of such Non-Consenting Party's Participating
Interest share of all liabilities and expenses,
including overhead, that were incurred in any
Exclusive Operations relating to the drilling, deepening, testing,
completing, sidetracking, plugging back, re-completing and reworking
of
the Exploration Well which made the Discovery in which the Non-Consenting
Party desires to reinstate the rights it relinquished pursuant to
Article
15.4(B), and that were not previously paid by such
Non-Consenting party; plus
|
|
(3)
|
Two
Hundred percent (200%) of such Non-Consenting Party's Participating
Interest share of all liabilities and expenses, including overhead,
that
were incurred in any Exclusive Operations relating to the drilling,
deepening, testing, completing, sidetracking, plugging back, re-completing
and reworking of the Appraisal Well(s) which delineated the Discovery
in
which the Non-Consenting Party desires to reinstate the rights it
relinquished pursuant to Article 15.4(B), and that were not previously
paid such Non-Consenting Party;
|
15.6
|
Order
of Preference of
Operations
|
|
(A)
|
Except
as otherwise specifically provided in this Agreement, if any Party
desires
to propose the conduct of an operation that will conflict with an
existing
proposal for an Exclusive Operation, such Party shall have the right
exercisable for five (5) days, or twenty-four (24) hours if the drilling
rig to be used is standing by in the Contract Area, from receipt
of the
proposal for the Exclusive Operation, to deliver to all Parties
entitled to participate in the proposed operation such Party's alternative
proposal. Such alternative proposal shall contain the
information required under Article
15.2(A).
|
|
(B)
|
Each
Party receiving such proposals shall elect by delivery of notice
to
Operator within the appropriate response period set out in Article
15.2(B)
to participate in one of the competing proposals. Any party not
notifying Operator within the response period shall be deemed to
have
voted against the proposal.
|
|
(C)
|
The
proposal receiving the largest aggregate Participating Interest vote
shall
have priority over all other competing proposals. In the case
of a tie vote, the Operator shall choose among the proposals receiving
the
largest aggregate Participating Interest vote. Operator shall
deliver notice of such result to all Parties entitled to participate
in
the operation within five (5) days of the end of the response period,
or
twenty-four (24) hours if the drilling rig to be used is standing
by in
the Contract Area.
|
Page
51
|
(D)
|
Each
Party shall then have two (2) days (or twenty-four (24) hours if
the
drilling rig to be used is standing by in the Contract Area) from
receipt
of such notice to elect by delivery of notice to Operator whether
such
party will participate in such Exclusive Operation, or will relinquish
its
interest pursuant to Article 15.4(B). Failure by a Party to
deliver such notice within such period shall be deemed an election
not to
participate in the prevailing
proposal.
|
15.7
|
Stand
By Costs
|
|
(A)
|
When
|
an
operation has been performed, all tests have been conducted and the
results of such tests furnished to the Parties, stand by costs incurred
pending response to any Party's notice proposing an Exclusive Operation
for deepening, testing, sidetracking, completing, plugging back,
re-completing, reworking or other further operation in such well
(including the period required under Article 15.6 to resolve competing
proposals) shall be charged and borne as part of the operation just
completed. Stand by costs incurred subsequent to all Parties
responding, or expiration of the response time permitted, whichever
first
occurs, shall be charged to and borne by the Parties proposing the
Exclusive Operation in proportion to their Participating Interests,
regardless of whether such Exclusive Operation is actually
conducted.
|
|
(B)
|
If
a further operation is proposed while the drilling rig to be utilized
is
on location, any Party may request and receive up to five (5) additional
days after expiration of the applicable response period specified
in
Article 15.2(B) within which to respond by notifying Operator that
such
party agrees to bear all stand by costs and other costs incurred
during
such extended response period Operator may require such Party to
pay the
estimated stand by time in advance as a condition to extending the
response period. If more than one Party requests such additional
time to
respond to the notice, stand by costs shall be allocated between
such
Parties on a day-to-day basis in proportion in their Participating
Interests.
|
15.8
|
Deepening,
Completing, Sidetracking, Plugging Back or
Re-completing
|
If
the
Consenting Parties decide to deepen, complete, sidetrack, plug back or
re-complete an Exclusive Well and such further operation was not
included in the original proposal for such Exclusive Well, the Consenting
Parties shall submit to the Non-Consenting Parties the approved AFE for
such further operation. For thirty (30) days (or
forty-eight (48) hours if the drilling rig which is to be used in such operation
is standing by in the Contract Area) from receipt of such AFE, each
Non-Consenting Party shall have the option to reinstate the rights it
relinquished pursuant to Article 15.4(B) and to participate in such
operation. The Non-Consenting Party may exercise such option by
notifying the Operator within the period specified above that such
Non-Consenting Party agrees to bear its Participating Interest share of the
liability and expense of such further operation, to pay the lump sum amount
as
set out in Article 15.5(A).
Page
52
A
Non-Consenting Party shall not be entitled to reinstate its rights in any other
type of operation.
15.9
|
Miscellaneous
|
|
(A)
|
Each
Exclusive Operation shall be carried out by the Operator on behalf
of and
at the expense of the Consenting Parties. For Exclusive
Operations, the Consenting Parties shall act as the Operating Committee,
subject to the provisions of this Agreement applied mutatis mutandis
to
such Exclusive Operation and subject to the terms and conditions
of the
Contract
|
|
(B)
|
The
computation of liabilities and expenses incurred in Exclusive Operations,
including the liabilities and expenses of Operator for conducting
such
operations, shall be made in accordance with the principles set out
in the
Accounting Procedure.
|
|
(C)
|
Operator
shall maintain separate books, financial records and accounts for
Exclusive Operations which shall be subject to the same rights of
audit
and examination as the Joint Account and related records, all as
provided in the Accounting Procedure. Said rights of
audit and examination shall extend to each of the Consenting Parties
and
each of the Non-Consenting Parties so long as the latter are, ore
may be,
entitled to elect to participate in such
operations.
|
|
(D)
|
Operator,
regardless of whether it is participating in an Exclusive
Operation, if it is conducting that Exclusive Operation for the Consenting
Parties, shall be entitled to request cash advances and shall not
be
required to use its own funds to pay any cost and expense and shall
not be
obliged to commence or continue Exclusive Operations until cash advances
requested have been made, and the Accounting Procedure shall apply
to
Operator in respect of any Exclusive Operations conducted by
it.
|
|
(E)
|
Should
the submission of a Development Plan be approved in accordance with
Article 5, or should any Party propose a development in accordance
with
Article 15, with either proposal not calling for the conduct of additional
appraisal drilling, and should any Party wish to drill an additional
Appraisal Well prior to development, then the Party proposing the
Appraisal Well as an Exclusive Operation shall be entitled to proceed
first, but without the right to future reimbursement of costs or
to any
Premium, pursuant to Article 15.5. If, as the
result of drilling such Appraisal Well as an Exclusive Operation,
the
Party proposing to apply for a Development Area decides to not develop
the
reservoir, then each Non-Consenting Party who voted in favour of
such
Development Plan prior to the drilling of such Appraisal Well shall
pay to
the Consenting Parties the amount such Non-Consenting Party would
have
paid had such Appraisal Well been drilled as a Joint
Operation.
|
|
(F)
|
In
the case of any Exclusive Operation for deepening, testing, completing,
sidetracking, plugging back, re-completing or reworking, the Consenting
Parties shall be permitted to use, free of cost, all casing, tubing
and
other equipment in the well, that is not needed for Joint Operations,
but
the ownership of all such equipment shall remain unchanged. On
abandonment of a Well after such Exclusive Operation, the Consenting
Parties shall account for all such equipment to the Parties who shall
receive their respective Participating Interest shares, in value,
less the
cost of salvage.
|
Page
53
|
(G)
|
If
the Operator is a Non-Consenting Party to an Exclusive Operation
to
develop a Discovery, then subject to obtaining any necessary Government
approvals the Operator may resign, but in any event shall resign
on the
request of the Consenting Parties, as Operator for the Development
Area
for such Discovery and the Consenting Parties shall select a Party
to
serve as Operator.
|
Page
54
ARTICLE
16 - INSURANCE AND INDEMNIFICATION
16.1
|
nsurance
|
16.1.1
|
The
Operator shall, for the benefit and protection of the Parties hereto,
and
in accordance with the requirement of Contract and in accordance
with the
Good International Petroleum Industry Practices obtain such insurance
with
reputable insurers upon reasonable and competitive terms from the
Joint
Account in relation to Petroleum Operations as may be required under
the
Contract, applicable laws, rules and regulations together with such
other
insurances which the Operator may determine necessary for the Joint
Operations. Such insurance policies shall include the
Government as additional insured and shall waive subrogation against
the
Government.
|
16.1.2
|
The
said insurance shall, without prejudice to the generality of
foregoing, cover the following as specifically required under
the Article 24.1.1 of the Contract:
|
|
a)
|
Loss
or damage to all installations, equipment and other assets for so
long as
they are used in or in connection with Petroleum Operations provided,
however, that if for any reason the Contractor fails to insure
any such installations, equipment or assets, it shall replace any
loss
thereof or repair any damage caused
thereto;
|
|
b)
|
Loss,
damage or injury caused by pollution in the course of or as a result
of
Petroleum Operations;
|
|
c)
|
Loss
of property or damage or bodily injury suffered by any third party
in the
course of or as a result of Petroleum Operations for which the Contractor
may be liable;
|
|
d)
|
Any
claim for which the Government may be liable relating to the loss
of
property or damage or bodily injury suffered by any third party in
the
course of or as a result of Petroleum Operations for which the Contractor
is liable to indemnify the Government, or the State
Government;
|
|
e)
|
With
respect to Petroleum Operations offshore, the cost of removing wrecks
and
cleaning up operations following any accident in the course of or
as a
result of Petroleum Operations;
|
|
f)
|
The
Contractor's and/or the Operator's liability to its employees engaged
in
Petroleum Operations.
|
Page
55
16.1.3
|
The
Operator shall duly file within time all claims with respect to insurance
arranged and maintained by the Operator and shall take all necessary
and
proper steps to collect the
proceeds.
|
16.1.4
|
The
Operator shall at all times require its Subcontractors engaged in
the
Joint Operations under this Agreement to obtain and maintain all
such
insurances pertaining to such work as they may be required to carry
by
virtue of any applicable law or regulation, Contract and such
other insurances as the Operator may deem
advisable.
|
16.1.5
|
Each
Party may for its own account and at its own expense, obtain such
insurance pertaining to the Joint Operations conducted and materials
acquired under this Agreement as it may deem advisable, provided,
however,
that obtaining of such insurance shall not in any way directly interfere
with Operator's placement or insurance for the Joint Account in accordance
with the terms of this Article hereof. The Operator shall use
its best efforts to facilitate, in cooperation with the Non- Operator
Party, the orderly settlement of claims by their respective
insurers.
|
16.1.6
|
All
damages, losses and liabilities incurred in the Joint Operations
which are
not recoverable from insurance procured for the Joint Account under
this
Article shall be charged to the Joint
Account.
|
16.1.7
|
Operator
shall supply a copy of all insurance to all the Parties and continue
to
supply all the relevant information in this regard to the Parties,
and
keep all insurance valid during the course of Petroleum Operations,
provided such insurance is available and approved by the Operating
Committee. In the event Operator fails to procure requisite insurance
under this Article, Operator shall be liable for all risk and
consequences.
|
16.1.8
|
Subject
to Article 4.7 of the Contract, the Contractor shall indemnify, defend
and
hold the Government and State Government harmless against all claims,
losses, and damages of any nature whatsoever, including, without
limitation, claims for loss or damage to property or injury or death
to
persons caused by or resulting from any Petroleum Operation conducted
by
or on behalf of the Contractor.
|
Page
56
ARTICLE
17 - DISPOSITION OF PRODUCTION
|
17.1
|
Subject
to the provisions hereof, each Party shall directly own and receive
in
kind its Participating Interest share of Contractor's entitlement
of each
grade and quality of all Petroleum produced and saved from the Contract
Area and subject to relevant Article of the Contract and to procedures
of
this Article 17, each Party shall separately and at its own expense
take
and dispose of its full share of Petroleum from the Delivery
Point.
|
|
17.2
|
Petroleum
produced and saved from the Contract Area shall delivered by
Operator to the Parties at the Delivery
Point.
|
|
17.3
|
It
is the intent of the Parties that they shall act in concert and jointly
as
sellers and shall therefore, not less than six (6) months prior to
the
start of commercial production, in good faith negotiate or authorize
the
Operator to negotiate a Petroleum offtake agreement with
potential buyers and such Petroleum offtake agreement shall provide,
among
other things, detailed terms and procedures
for:
|
|
17.3.1
|
Short-term
production forecasts,
|
|
17.3.2
|
Frequency
of Petroleum nominations and period
involved,
|
|
17.3.3
|
Ocean
tanker nominations,
|
|
17.3.4
|
Lifting
tolerances,
|
|
17.3.5
|
Under
lift/ Over lift,
|
|
17.3.6
|
Demurrage,
and
|
|
17.3.7
|
Penalties
assessable to any Party or the buyer(s) which causes a production
loss due
to its failure to perform.
|
Notwithstanding
the above, in the event any of the Parties decides for any reason whatsoever
not
to participate jointly and in concert with the remaining Parties, as aforesaid,
then such dissenting Party shall be entitled to enter into an independent
Petroleum offtake agreement on its own at its own cost and risk.
Page
57
ARTICLE
18 - NOTICES
18.1
|
Any
notice or other communication provided for in this Agreement shall
be in
writing and shall be deemed to have been properly given or delivered
when
delivered in person to an authorized representative of the Party
to whom
it is addressed, or when sent by air mail, electronic mail, facsimile,
telex, telegram or cable to the Party at its address hereinafter
specified:
|
|
a)
|
Managing
Director
|
Gujarat
State Petroleum Corporation Ltd.
Xxxxx
Xx.00, 0xx
Xxxxx
Xxxxx
Xxxxxx, Xxxxxx-00
Xxxxxxxxxxx
- 000 000
Xxxxxxx.
Tel # : 91-79-
0000000 / 0000000
Fax
# : 91-79--3236375
b) President
Jubilant
Enpro Ltd.
0X,
Xxxxxx-00X, Xxxxxxxxxxxxx Xxxx
Xxxxx
-
201 301
Uttar
Pradesh
Tel # : 00-000-0000000
Fax
# : 00-000-0000000
c) President
/ C.E.O
GeoGlobal
Resources (India) Inc.
00-00
Xxxxxx XX
Xxxxxxx,
Xxxxxxx
X0X
0X0
Tel
# : 0-000-000-0000
Fax
# : 0-000-000-0000
and
shall
be effective from the date of receipt thereof.
18.2
|
Any
Party may from time to time change its address under this Article
on
fifteen (15) days notice to the other Party
(ies).
|
Page
58
ARTICLE
19 - SOLE EXPERT, CONCILIATION AND ARBITRATION
19.1
|
The
Parties shall use their best efforts to settle amicably all disputes,
differences or claims arising out of or in connection with any of
the
terms and conditions of this Agreement or concerning the interpretation
or
performance thereof.
|
19.2
|
Matters
which, by the terms of this Agreement, the Parties have agreed to
refer to
a sole expert and any other matters which the Parties may agree
to so refer, may be referred to a sole expert who shall be an
independent and impartial person of international standing with relevant
qualifications and experience, appointed by agreement between the
Parties
and who shall not, by virtue of nationality,
personal connection or commercial interest, have a conflict
between his/ her own interest and his/ her duty as a sole
expert. In the event that the Parties fail or are unable, to
agree on a sole expert within thirty (30) days or such longer period
as
may be mutually agreed by Parties, the sole expert shall be appointed
by a
body or an institution or an agency or a person, mutually agreed
by
Parties. In case, there is no agreement on the body or an
institution or an agency or a person for appointing sole expert or
such
body or institution or agency or person fails to appoint a sole expert
within thirty (30) days or such longer period as may be mutually
agreed by
Parties, the sole expert shall be appointed by the Chief Justice
of India
or by a person authorized by him. Any sole expert appointed
shall be acting as an expert and not as an arbitrator and the decision
of
the sole expert on matters referred to him/ her shall be final and
binding
on the Parties and shall not be subject to
arbitration.
|
19.3
|
Subject
to the provisions of this Agreement, the Parties hereby agree that
any
controversy, difference, disagreement or claim for damages, compensation
or otherwise (hereinafter in this Clause referred to as "dispute")
arising
between the Parties, which cannot be settled amicably within ninety
(90)
days after the dispute arises, may (except for those referred to
in
Article 19.2, which may be referred to a sole expert) be submitted
to
conciliation or an arbitral tribunal for final decision as
hereinafter provided.
|
19.4
|
The
arbitral tribunal shall consist of three arbitrators. Each
Party to the dispute shall appoint one arbitrator and the Party or
Parties
shall so advise the other Parties. The two arbitrators
appointed by the Parties shall appoint the third
arbitrator.
|
19.5
|
Any
Party may, after appointing an arbitrator, request the other Party(ies)
in
writing to appoint the second arbitrator. If such other Party
fails to appoint an arbitrator within thirty (30) days of receipt
of the
written request to do so, such arbitrator may, at the request of
the first
Party, be appointed by the applicable Chief Justice or by a person
authorized by him within thirty (30) days of the date of receipt
of such
request, from amongst persons who are not nationals of the country
of any
of the Parties to the arbitration
proceedings.
|
19.6
|
If
the two arbitrators appointed by or on behalf of the Parties fail
to agree
on the appointment of the third arbitrator within thirty (30) days
of the
appointment of second arbitrator and if the Parties do not otherwise
agree, at the request of either Party, the third arbitrator shall
be
appointed in accordance with Arbitration and Conciliation Act,
1996.
|
19.7
|
If
any of the arbitrators fails or is unable to act, his successor shall
be
appointed by the Party or person who originally appointed such in
the
manner set out in this Article as if he was the first
appointment.
|
Page
59
19.8
|
The
decision of the arbitral tribunal, and, in the case of difference
among
the arbitrators, the decision of the majority, shall be final and
binding
upon the Parties.
|
19.9
|
The
arbitration agreement contained in this Article 19 shall be governed
by
the Arbitration and Conciliation Act, 1996 (Arbitration
Act). Arbitration proceedings shall be conducted in accordance
with the rules for arbitration provided in Arbitration Act and the
United
Nations Commission on International Trade Law (UNCITRAL) rules may
apply
to the extent where corresponding rules are not provided in the
Act.
|
19.10
|
The
right to arbitrate disputes under this Agreement shall survive expiry
or
the termination of this Agreement.
|
19.11
|
Prior
to submitting a dispute to arbitration, the Parties may by mutual
agreement submit the matter for conciliation in accordance with Part
III
of the Arbitration and Conciliation Act, 1996. No arbitration
proceedings shall be instituted while conciliation proceedings are
pending
provided that a Party may initiate arbitration proceedings in
the event that dispute has not been resolved by conciliation within
twenty
one (21) days of the date of agreement by the Parties to submit such
dispute to conciliation.
|
19.12
|
The
venue of the sole expert, conciliation or arbitration proceedings
pursuant
to this Article, unless the Parties agree otherwise, shall be New
Delhi,
India and shall be conducted in the English language. Insofar
as practicable, the Parties shall continue to implement the terms
of this
Agreement notwithstanding the initiation of arbitral
proceeding before a sole expert, conciliator or arbitral
tribunal and any pending claim or
dispute.
|
19.13
|
The
fees and expenses of a sole expert or conciliator appointed by the
Parties
shall be borne equally by the Parties. The cost and expenses of
arbitrator appointed by a Party in accordance with the
provision of this Article shall be borne by the respective Party
and the
cost and expenses of third arbitrator and liability thereof shall
be at
the discretion of the arbitrators.
|
19.13
|
Notwithstanding
anything contrary contracted herein above, in the event of dispute
among
Government Company(s) and with the Government, such disputes shall
be
settled in accordance with guidelines issued on the subject by Government
from time to time.
|
Page
60
ARTICLE
20 - APPLICABLE LAW
This
Agreement shall be governed by, construed, interpreted and applied in accordance
with the laws of Republic of India, both substantive and procedural.
The Courts in New Delhi, India, shall have exclusive jurisdiction in all matters
arising under this Agreement.
Page
61
ARTICLE
21 - RELATIONSHIP OF PARTIES, MUTUAL INDEMNITIES AND NO
PARTITION
21.1 Several
Liability
21.1.1
|
The
rights, covenants, obligations and responsibilities of the Parties
pursuant to or arising under this Agreement unless other stated shall
be
several to the extent of their respective Participating Interests
and nor
joint and several.
|
21.1.2
|
Each
Party shall be individually responsible for its own covenants, obligations
and responsibilities to the extent of its Participating Interest
except as
herein expressly provided. Subject to Article 15.2 and
4.9.01, in the event a claim, demand, action or liability is
made against or incurred by or demanded from any Party under the
terms of
or pursuant to the Contract or this Agreement in excess of its
Participating Interest, such Party shall have the right of
recovery of such excess by contribution from each of the
Parties in proportion to their respective Participating
Interests.
|
21.1.3
|
Further,
and except as expressly provided in this Agreement, nothing herein
contained shall be construed to create an association, trust or
partnership between the Parties.
|
21.1.4
|
No
Party shall be under the control of, or be the agent of or have a
right or
power to bind any other Party without its express written
consent, except as herein expressly
provided.
|
21.2 Mutual
Indemnities
Subject
to
the provisions
of this Agreement, each Party shall indemnify and keep indemnified each of
the
other Parties from every claim, demand, action, liability or loss resulting
from
each and every breach or default by the indemnifying Party of any of its
obligations under the Agreement.
21.3 No
Partition
Unless
unanimously agreed by the Parties no Party shall seek to partition any Joint
Property, whether by court order or otherwise.
Page
62
ARTICLE
22 - GENERAL
22.1 Waiver
|
No
waiver by any Party of any provision of this Agreement, no consent
to or
departure therefrom shall be binding unless made expressly and confirmed
in writing by authorized representatives of the Parties. Further,
any such
waiver or consent shall relate only to such matter, noncompliance or
breach as it expressly relates to and for the purpose for which it
is
given and shall not apply to any subsequent or other matter, non
compliance or breach. No default or delay on the part of either Party
in
exercising any rights, power or privilege hereunder shall operate
as a
waiver thereof or of any rights or remedies
hereunder.
|
22.2 Amendments
|
This
Agreement may be amended or varied only by an instrument in writing
executed by authorized representatives of all the
Parties.
|
22.3 Language
The
English language shall be the language of this Agreement and shall be used
in
all communications between the Parties as well as in the Arbitral
proceedings.
22.4 Conflict
of Interest
22.4.1
|
Each
Party undertakes that it shall avoid any conflict of interest between
its
own interests (including the interests of Affiliates) and the interests
of
the other Parties in dealing with suppliers, customers and all other
organizations or individuals doing or seeking to do business with
the
Parties in connection with activities contemplated under this
Agreement.
|
22.4.2 The
provisions of the preceding paragraph shall not apply to:
|
(a)
|
A
Party's performance, which is in accordance with the local preference
laws
or policies of the host government;
or
|
|
(b)
|
A
Party's acquisition of products or services from an Affiliate, or
the sale
thereof to an Affiliate, made in accordance with the terms
of this
Agreement.
|
22.5 Public
Announcements
22.5.1
|
Operator
shall be responsible for the preparation and release of all public
announcements and statements regarding this Agreement or the Joint
Operations; provided that, no public announcement or statement shall
be
issued or made unless prior to its release all the Parties have been
furnished with a copy of such
statement
|
Page
63
or
announcement and the
approval of
Parties has been obtained. Where a public announcement or statement becomes
necessary or desirable because of danger to or loss of life, damage to property
or pollution as a result of activities arising under this Agreement, Operator
is
authorized to issue and make such announcement or statement, without prior
approval of the Parties, but shall promptly furnish all the Parties with a
copy
of such announcement or statement.
22.5.2
|
If
a Party wishes to issue or make any public announcement or statement
regarding this Agreement or the Joint Operations, it shall not do
so
unless prior to its release, such Party furnishes all the Parties
with a
copy of such announcement or statement, and obtains the approval
of all
the Parties or at least two (2) non-affiliated Parties holding fifty
percent (50%) or more of the Participating Interests; provided that,
notwithstanding any failure to obtain such approval, no Party shall
be
prohibited from issuing or making any such public announcement or
statement if it is necessary to do so in order to comply with
the applicable laws, rules or regulations, legal proceedings or
stock exchange having jurisdiction over such party
.
|
22.6 Severance
of Invalid Provisions
If
and
for so long as any provision of this Agreement is deemed or declared to be
invalid for any reason whatsoever, such invalidity shall not affect the validity
or operation of any other provision of this Agreement except only so far as
shall be necessary to give effect to the construction of such invalidity, and
any such invalid provision shall be deemed severed from this Agreement without
affecting the validity of the balance of this Agreement.
Page
64
IN
WITNESS WHEREOF the Parties have caused this Agreement to be executed
by their duly authorized officers and representatives as of the day and year
first above written.
Signed
by
For
and
on behalf of
Gujarat
State Petroleum Corporation Ltd.
In
presence
of (1)
(2)
For
and
on behalf of
Jubilant
Enpro Ltd.
In
presence
of (1)
(2)
For
and
on behalf of
GeoGlobal
Resource (India) Inc.
In
presence
of (1)
(2)
Page
65
EXHIBIT "A"
ACCOUNTING
PROCEDURE
ARTICLE
I
GENERAL
PROVISIONS
1.1
|
DEFINITIONS
|
The
definitions contained in Article 1 of the Operating Agreement to which this
Accounting Procedure is attached shall also be applicable
herein. Furthermore, as and when used in this Accounting Procedure
the terms listed below shall have the following meaning:
|
A.
|
The
"said Agreement" means the Operating Agreement of which this Exhibit
is a
part.
|
|
B.
|
"Material"
shall mean all material, supplies and equipment acquired or held
for use
in Joint Operations.
|
C. "Outsider"
or "Outsiders" means parties other than Operator and Non-Operators.
|
D.
|
Other
terms used in this Accounting Procedure which are defined or described
in
said Agreement shall have the same meaning given them in said
Agreement.
|
1.2 Inconsistency
In
the
event of any inconsistency or conflict between the provisions of this Accounting
Procedure and the other provisions of the Agreement, the other provisions of
the
Agreement shall prevail. The accounts will be in conformity with
accounting principles/standards and guidelines issued by the Institute of
Chartered Accountants of India from time to time.
1.3 Revision
of the Accounting Procedure
By
mutual
agreement between the Operator and the Non-Operators, this Accounting Procedure
may be revised from time to time, in writing, signed by the Parties, stating
the
date upon which the amendments shall become effective.
2.
|
JOINT
ACCOUNT RECORDS AND CURRENCY
EXCHANGE
|
Operator
shall maintain accounting records for the Joint Account in the English language
in accordance with generally accepted accounting practices used in the petroleum
industry and in such a manner that all expenditures will be segregated or can
be
allocated to appropriate areas in connection with the Petroleum Operations.
Joint Account records shall be maintained in the Operator's office in India,
and
stated in United States Dollars and Indian Rupees. Expenditures other
than United States Dollars or Indian Rupees shall be translated into United
States Dollars and charged as United States Dollar
expenditures. Unless mutually agreed otherwise by the Parties,
translation of non United States Dollars expenditure into United States Dollars
and United States Dollar expenditures into Indian Rupees shall be as
follows:
Page
66
(A)
|
Expenditure
of currencies purchased by the Operator for the Joint Account with
Unites
States Dollars shall be translated back into United States Dollars
at the
rate of exchange at which the currency was purchased with individual
currency purchased deemed to be utilized on a first in/ first out
basis to
provide the funds expended.
|
(B)
|
Indian
Rupees advanced pursuant to Indian Rupee calls shall be translated
into
United States Dollars at the monthly average of the daily mean of
the
buying and selling rates of exchange as quoted by State Bank of India
(or
any other financial body as may be mutually agreed by the Parties)
for the
Month in which the revenues, costs, expenditures, receipts or income
are
recorded. However, in case of any single non-US
Dollar transaction in excess of the equivalent of fifty thousand
United
States Dollar (US $ 50,000), the conversion into United States Dollars
shall be performed on the basis of the average of the applicable
rates for
the day on which the transaction
occurred.
|
(C)
|
Expenditures
of United States Dollars advanced pursuant to United States Dollar
Cash
Calls shall be translated into Indian Rupees using the applicable
exchange
rate for the month of disbursement based on the current procedure
that the
Operator uses to translate United States Dollars as specified in
clause
(B) above.
|
The
intent of the procedures outlined in Paragraph 2 of this Article I is to
minimize any gain or loss on exchange chargeable to the Joint
Account.
It
is
agreed, however, that any loss or gain resulting from the exchange of currency
required for the use of the Joint Operations or from the translation above
listed, shall be charged or credited to the Joint Account. The matter
of translation rates shall be reconsidered if it is determined that the above
methods result in inequities, or burdensome administration, or do not provide
the proper value for stating expenditure under the terms of the
Agreement.
3. ADVANCES
AND CASH CALLS
(A)
|
Upon
approval of Work Programmes and Budgets and subject to Article 4.7
of the
Agreement, Operator shall have the right at its option to require
the
Parties to advance their share of Joint Operations net cash requirements
by submitting to the Parties, on or before the first day of any month
an
itemized estimate by Budget categories of such requirements for the
succeeding month.
|
(B)
|
Each
such Cash Call shall be equal to the Operator's estimate of the money
to
be spent to perform its duties under the Approved Work Programme
and
Approved Budget for the month concerned and shall specify the currency
or
currencies in which the money shall be expended. The Parties
shall pay their Participating Interest share of the cash requirements
within thirty (30) days after receipt of the estimates or by the
first
Business Day of the month for which advances are required, whichever
is
the later. A reconciliation between estimates and actual cash
requirements shall be made by Operator at the close of each Calendar
Month
and any differences shall be adjusted in the subsequent cash requirement
request.
|
Page
67
(C)
|
A
Party shall have the right to make payment in the currency required
to be
expended by the Operator where such Party's share of the payment
required
is US $ 100,000 (United States Dollars one hundred thousand) or
more. The principles referred to in para 2 of this Article
shall apply in relation to the exchange rate to be used by the Operator
where a Party exercises its right pursuant to this subparagraph
(C).
|
(D)
|
For
information purposes the Cash Call shall contain an estimate of the
funds
required for the succeeding two
months.
|
(E)
|
In
the event that Operator subsequently determines that due to unanticipated
expenditures the estimated monthly requirements submitted to the
Parties
are inadequate, Operator shall have the right to require the Parties
to
advance a portion of additional requirements by submitting an itemized
estimate by Budget categories of such requirements. Each Party
shall pay its proportional share of such advance within thirty (30)
Business Days after receipt of such notice or the date of requirement
specified by the Operator whichever is
later.
|
(F)
|
Each
Cash Call shall indicate the AFE pursuant to which it is made. If
a Party
believes that the Cash Call exceeds the AFE to which it relates such
Party
may within five (5) Business Days of receipt of such Cash Call send
notice
to all other Parties including the Operator advising that it believes
that
all or a part of the Cash Call exceeds the applicable AFE and providing
its reasons therefor. If within a further three (3) days all Non-Operators
agree that all or a part of the Cash Call does not fall within an
AFE then
that part of Cash Call on which the Non-Operators have unanimously
agreed
exceeds the AFE shall be invalidated. The Parties shall not be subject
to
Articles 7.6 and 7.7 for failing to pay within the time required
that part
of a Cash Call invalidated pursuant to this provision and in such
event
within a further five (5) Business Days the Operating Committee shall
meet
to resolve the issue.
|
(G)
|
Where
separate Joint Operations bank accounts are maintained as provided
in para
3(K) of Article I of this Accounting Procedure, any interest earned
from
deposits of cash advances will be for the benefit of the individual
Parties' account in proportion to their contributions. However, any
Party
may require that funds it has advanced in excess of its proportionate
share of actual cash required by the Joint Operations, should said
excess
funds exceed fifty thousand United States Dollars (U.S.$50,000) or
their
equivalent in Indian Rupees, be returned in the currency of their
original
denomination within a period of fifteen (15) Business Days from the
date
of receipt of the request at the Party's expense. If the Operator
does not
make arrangements in good faith to return such funds in fifteen (15)
Business Days then the Operator shall pay the Party requesting the
refund
the difference between the interest specified in Article 7.6.2 of
the
Agreement and the interest earned on the bank account of the Joint
Account.
|
Page
68
(H)
|
If
the Operator does not request advance funds from the Parties, then
the
monthly billing referred to in Paragraph 4(A) of Article I shall
be paid
by the Parties in accordance with their Participating Interests within
thirty (30) days after receipt
thereof.
|
(I)
|
Cash
requirements shall be specified by the Operator in United States
Dollars
and/or in Indian Rupees as required for the Joint Operations and
the
Parties shall advance their share of United States Dollars and Indian
Rupees as so specified.
|
(J)
|
Subject
to paragraph 3(E) of this Article I, if any Party fails to pay in
full its
share of any Cash Call by the due date as provided above, it shall
be in
default, and Article 7.6 and 7.7 of the Agreement shall
apply.
|
(K)
|
Funds
under the said Agreement held by Operator outside of India shall
be
segregated into a separate bank account or accounts, and shall not
be
commingled with Operator's other funds. Funds under the Agreement
held by
the Operator within India shall be held in separate bank accounts
maintained solely for the respective purposes of the Joint Account.
A
monthly statement summarizing receipts, disbursements, transfers
to each
Joint Account and beginning and ending balances thereof shall be
provided
by the Operator to the Parties.
|
(L)
|
The
Operator shall endeavor to maintain funds in bank accounts for the
Joint
Account at a level consistent with that required for the prudent
conduct
of Joint Operations.
|
4. STATEMENTS
AND XXXXXXXX
|
(A)
|
Unless
otherwise agreed by the Parties, Operator shall render monthly to
all the
Parties, by the twenty fifth (25th) day of each Month, a billing
statement
of the costs and expenditure incurred during the prior Month, indicating
by appropriate classification the nature thereof and the portion
of such
costs charged to each of the
Parties.
|
These
statements shall contain the following information:
(a)
advances of funds setting forth the currencies received from each
Party;
(b) the
share of each Party in total expenditures on a cash and accrual
basis;
(c)
the current cash balance of each Party; and
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69
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(d)
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a
summary of costs, credits and expenditure on current month, year
to date,
and inceptions to date basis or other periodic basis, as agreed by
the
Parties for each activity of the Approved Work Programme and Approved
Budget.
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(B)
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Each
Party shall be responsible for preparing its own accounting and tax
reports to meet the requirements of India and other applicable countries.
Operator, to the extent that the information is reasonably available
from
the Joint Account records, shall provide in a timely manner, Non-Operators
with the necessary statements to facilitate the discharge of such
responsibility.
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(C)
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The
"cash" rather than "accrual" basis for accounting shall be used in
charging the Joint Account. "Cash" basis as used herein means that
expenditures for the Joint Operations are regarded as applicable
to the
period in which cash disbursements are made, whereas "accrual" basis
means
that expenses are regardless of when paid. For Non-Operator's internal
accounting purposes, the Operator shall reflect accruals applicable
to the
Joint Account as memorandum items.
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(M)
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The
billing statement is to be accompanied by billing schedules which
shall be
schedules dividing such expenditures and income into main classifications
of expenditure as indicated by Approved Budget and AFEs. The billing
schedule shall also show cumulative totals of all payments linked
to AFEs
Budget categories and Programmes.
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5. ADJUSTMENTS
Payments
of any such bills shall not prejudice the right of Non-Operators to protest
or
question the correctness thereof. Subject to the exception noted in paragraph
6
of this Article I, all statements rendered to Non-Operators by Operator during
any Year shall be presumed to be true and correct after twenty seven (27) months
following the end of such Year, unless within said twenty seven (27) month
period any Non-Operator requests for adjustment. Failure on the part of
Non-Operators to make claim on Operator for adjustment within such period shall
establish the correctness thereof and preclude the filing of exceptions thereto
or making of claims for adjustment thereon. No adjustment favorable to the
Operator shall be made unless it is made within the same prescribed period.
The
provisions of this paragraph shall not prevent any adjustments resulting from
amongst others, physical inventory of property as provided for in Article IV
hereof, and exchange gains or losses as contemplated by Article I
(2).
6. AUDITS
Non-Operators,
upon written notice to the Operator, shall have the right to audit Operator's
accounts and records relating to the accounting hereunder for any Year within
twelve (12) month period following the end of such Year; provided, however,
that
Non-Operators must take written exception to and make claim upon the Operator
for all discrepancies disclosed by said audit within the said twelve (12) month
period. Non-Operators shall make every reasonable effort to conduct audits
in a
manner, which will result in a minimum of inconvenience to the Operator. Audits
by Non-Operators shall be at Non-Operators' expense.
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70
At
the
conclusion of each such audit, the Non-Operators and the Operator shall endeavor
to settle outstanding matters and a written report shall be circulated to all
the Non-Operators and the Operator within three (3) months of the conclusion
of
the audit and shall also be placed before the Operating Committee. In addition,
a written statement of settlement reached between the Non-Operators and the
Operator after the outstanding matters have been settled between the
Non-Operators and the Operator shall be placed before the Operating Committee.
The report shall include all claims arising from such audit together with
comments pertinent to the operations of the accounts and records. The Operator
shall reply to the report in writing as soon as possible and in any event not
later than three (3) months following the receipt of such report.
Should
the Non-Operator consider that the report or reply requires further
investigation of any item therein, the Non-Operator shall have the right to
conduct further investigation in relation to such matter notwithstanding that
such period of twenty four (24) months has expired. Such further investigations
shall be commenced within thirty (30) days and be concluded within sixty (60)
days of receipt of such reply or report.
Notwithstanding
that the said period of twenty four (24) months may have expired, if evidence
exists that the Operator has been guilty of Wilful Misconduct, the Non-Operators
shall have the right to conduct further audits in respect of any earlier
period.
All
adjustments resulting from audit agreed between Operator and Non-Operators
conducting the audit shall be rectified promptly in the Joint Account by the
Operator and reported to other Non-Operators as well as to the Operating
Committee. If any dispute shall arise in connection with an audit, it shall
be
discussed by the Parties and if a settlement between the Operator and the
Non-Operators or among the Parties is not unanimously agreed, the item or items
in dispute shall be referred to arbitration.
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Operator
will get accounts audited in three months from closure of financial
years
and submit the same to non-operating
partners.
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Operator
shall also file tax returns or returns/forms as applicable under
Indian
Laws.
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ARTICLE
II - BASIS OF CHARGES TO THE JOINT ACCOUNT
The
Operator shall fully charge the Joint Account with all direct costs and expenses
incurred in accordance with all Approved Work Programmes and Budgets and the
provisions of this Agreement and in connection with Contract, Materials and
Joint Operations. Without in any way limiting the generality of the foregoing,
chargeable direct and indirect costs shall include all costs set forth in
Sections 2 and 3 of the Accounting Procedure annexed to the Contract and all
costs and expenses incurred by the Operator as a result of carrying another
party’s interest and any other costs approved by the Operating
Committee.
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72
ARTICLE
III - DISPOSAL OF MATERIALS
The
Operator shall be under no obligation to purchase for its owe account surplus,
new or second hand Material. The disposition of major items of surplus equipment
and Material, such as derricks, tanks, engines, pumping units and tubular goods
shall be subject to determination by the Operating Committee, provided the
Operator shall have the right to dispose of normal accumulations of junk and
scrap material either by transfer or sale for the Joint Properties, subject
to
relevant provisions of the Agreement.
1. MATERIAL
PURCHASED BY OPERATOR OR NON-OPERATOR
Material
purchased by either Operator or Non-Operators for use in operations outside
this
Agreement shall be credited by Operator to the Joint Account for the month
in
which the Material is removed by the purchaser.
2. DIVISION
IN KIND
Division
of Material in kind, if made between Operator and Non-Operators, shall be in
proportion to their respective interests in such Material. Each Party shall
thereupon be charged individually with its share of the agreed value of Material
received or receivable by each Party, and corresponding credits shall be made
by
Operator to the Joint Account. Such credits shall appear in the monthly
statement of Joint Operations.
3. SALE
TO OUTSIDERS
Sale
to
Outsiders of Material from the Joint Properties shall be credited by the
Operator to the Joint Account at the net amount collected by the Operator from
vendee. If such sale is priced lower than the basis stipulated in Section 3.1.8
of the Accounting Procedure annexed to the Contract, then such sale shall be
approved by the Operating Committee prior to such sale. Any claims by vendee
for
defective Materials or otherwise shall be charged back to the Joint Account
if
and when paid by the Operator.
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73
ARTICLE
IV - INVENTORIES
1. PERIODIC
INVENTORIES, NOTICE AND REPRESENTATION
Unless
otherwise agreed by the Parties, the Operator shall take physical inventory
of
Joint Account assets as are ordinarily considered controllable by operators
of
oil and gas properties at the following intervals:
A. Storehouse
stocks - annually.
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B.
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Other
assets - cyclical basis so that all controllable assets shall be
inventoried at intervals of not more than five (5)
years.
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C.
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Completed
construction projects - within sixty (60) days following physical
completion of project.
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Written
notice of intention to take inventory shall be given by the Operator at least
thirty (30) days before any inventory is to begin so that the Non-Operators
may
be represented when any inventory is taken.
Failure
of the Non-Operators to be represented at an inventory shall bind the
Non-Operators to accept the inventory taken by the Operator.
2. RECONCILIATION
AND ADJUSTMENT OF INVENTORIES
Reconciliation
of inventory with charges to the Joint Account shall be made by the Operator,
and the Operator shall furnish the Non-Operators a copy of the inventory and
a
price list of overages and shortages. Inventory adjustments shall be made by
the
Operator to the Joint Account for overages and shortages except that any
particular item exceeding twenty five thousand United States Dollars (US
$25,000) or class of Material adjustment exceeding fifty thousand United States
Dollars (US $50,000) or net total adjustments of both overages and shortages
for
any particular inventory exceeding in the aggregate an amount equivalent to
one
hundred thousand United States Dollars (US $100,000) shall require the approval
of the Non-Operator(s). The Operator shall be held accountable to the
Non-Operator(s) only for shortages due to lack of reasonable
diligence.
3. SPECIAL
INVENTORIES
Special
inventories may be taken, at the expenses of the purchaser, whenever there
is
any sale or change of interest in the Joint Properties; and it shall be the
duty
of the Party selling to notify all other Parties hereto as quickly as possible
after the transfer of interest takes place. In such cases, both the seller
and
the purchaser shall be represented and shall be governed by the inventory so
taken.
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74
ARTICLE
V - FORM IN WHICH ACCOUNTS SHALL BE MAINTAINED
The
form
of the accounts as required for the purpose of complying with provisions of
the
Agreement shall include:
1.
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Accounts
recorded through Operator's Uniform Chart of Accounts or an equivalent
system of accounts. A manual of Operator's accounts shall be maintained
at
Operator's office in India.
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2.
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Statements
produced from the Operator's accounts of income and expenditure.
Such
statements produced from the Operator's accounts must be developed
over
time to reflect actual progress and
circumstances.
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EXHIBIT -
B
CARRIED
INTEREST AGREEMENT
THIS
AGREEMENT MADE this 27 day of August, 2002.
BETWEEN:
Gujarat
State Petroleum Corporation Limited, a company incorporated in India
and having its registered office at Block 15, Second Floor, Xxxxx
Xxxxxx, Xxxxxx 00, Xxxxxxxxxxx, Xxxxxxx 000000, Xxxxx (hereinafter referred
to
as “GSPC)
OF
THE
FIRST PART
AND:
GeoGlobal
Resources (India) Inc, a company incorporated in Alberta, Canada, and
having its registered office at 35 – 00 Xxxxxx XX, Xxxxxxx, Xxxxxxx, X0X 0X0,
Xxxxxx ,(hereinafter referred to as “GGR)
OF
THE
SECOND PART
Whereas
the broad principles and special provisions to be incorporated in
the
joint operating agreement referred to in clauses 5.1 of the Joint Bidding
Agreement are as follows:
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(a) Subject
to clause (e) of this Agreement, GSPC shall be the Operator if Production
Sharing Contract is awarded with respect to the Bid made jointly
by the
parties. GSPC shall perform petroleum operations on behalf of
the parties pursuant to the terms of mutually agreed joint operating
agreement effective as of the date of signing the Production Sharing
Contract for exploration block no. KG-OSN-2001/3 offered under NELP-III,
or completion of all three exploration phases which ever is
earlier. The Non operating party, GGR shall be carried for 100%
of all of its share of any costs during the Exploration phase prior
to the
start date of initial commercial production. However, all of GGR’s share
of any capital costs for the development phase will be paid back
to GSPC
as operator without interest and repayment of these costs shall be
prorated over the forecast production life or ten years whichever
is
less.
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Now
therefore this agreement
witnesseth that in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
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76
Carried
Working Interest
The
interest retained by GGR in the
said exploration block as provided in this agreement shall be a carried working
interest, that is to say:
(a) GSPC
covenants and agrees that upon being successful in the development of the said
block, GGR shall be entitled to and have earned a 10% carried working
interest;
(b) GSPC
shall advance and pay for the joint account of the parties, all costs and
expenses which are made by GSPC pursuant to the terms of this agreement
including, without in any way whatsoever limiting the generality of the
foregoing, all costs and expenses of whatsoever nature or kind for exploration
phase carried out on the said block, for development of an operations on the
said block for the discovery and recovery of petroleum substances (which for
the
purposes of this agreement includes all petroleum, natural gas and related
hydrocarbons and such other substances as are granted by the said
block);
(c) after
deducting all royalties payable under the said block, GSPC shall be entitled
to
recover all such costs and expenses out of the production if any, from xxxxx
drilled by GSPC on the said block pursuant to the terms hereon;
(d) GGR
shall not be entitled to receive any share of production of petroleum substances
until GSPC has recovered GGR’s share of the costs and expenses that were paid by
GSPC as aforesaid and after such costs and expenses have been recovered, GGR
shall be entitled to a 10% interest in all xxxxx drilled on the said block,
in
all equipment placed in and on the said block and in all petroleum substances
produced from xxxxx drilled by GSPC on the said block;
(e) if
petroleum substances are not produced from the said block or if production
ceases before GSPC has recovered all of GGR’s share of costs and expenses, it is
understood and agreed that GSPC shall bear all of the aforesaid costs and
expenses and that GGR shall have no obligation or liability to pay, repay or
bear any portion thereof;
(f) it
is understood and agreed that any and all rental payments made in respect of
the
said block shall be borne and paid solely by GSPC and shall not be charged
to
the joint account.
(g) all
costs and expenses and all income in connection with the said block shall be
computed and accounted for in accordance with the standard industry accepted
accounting principals and agreements.
Termination:
The
term of this Agreement shall
commence on the date of this Agreement and shall be a period equal to
the same term of the Exploration Period of Block KG-OSSN-2001/3 offered under
NELP-III and the joint operating agreement referred to above.
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77
Amendment:
No
amendment to this Agreement shall be valid and binding unless set forth in
writing and duly executed by the parties.
Governing
Law and Arbitration:
a)
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The
laws of India shall govern this Agreement. GSPC and GGR submit to
the exclusive jurisdiction of its courts at
Delhi.
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b)
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Any
dispute arising in connection with or with respect to validity of
this
agreement shall be finally resolved through Arbitration in accordance
with
the rules under Arbitration & Conciliation Act, 1996
. Proceedings of Arbitration shall be held in New
Delhi and conducted in English
language.
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EXECUTED
in Gandhinagar
Signed
for and on behalf
of
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Gujarat
State Petroleum Corporation Limited
by:
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Witness:
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Signed
for and on behalf of
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GeoGlobal
Resources (India) Inc. by:
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Witness:
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78