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EXHIBIT 10.15
AGREEMENT OF SALE AND PURCHASE
This agreement of sale and purchase ("Agreement") dated April 19, 1995,
between XXXXXX GAS CO., INC., a Texas corporation ("Seller"), and TITAN
RESOURCES, L.P., a Texas limited partnership ("Purchaser"), evidences that
Seller desires to sell to Purchaser and Purchaser desires to purchase from
Seller all right, title and interest of Seller in certain non-producing oil and
gas leases in Pecos and Xxxxxx Counties, Texas on the terms and conditions
hereinafter specified, and that, therefore, in consideration of the premises
and of the mutual covenants and obligations specified herein, Seller and
Purchaser agree as follows:
1. Purchase of Leases. At the Closing (as hereinafter defined), in
accordance with and subject to the other terms and conditions hereof, Seller
shall sell, assign, transfer and deliver to Purchaser, and Purchaser shall
purchase, acquire and accept from Seller, all of Seller's right, title and
interest in and to the oil, gas and mineral leases identified and described on
Exhibit A attached hereto and incorporated herein (individually a "Lease" and
collectively the "Leases").
2. Consideration and Payment. As full consideration for the Leases,
Purchaser will pay to Seller the price ("Price") of $77,070. At the Closing,
Purchaser will deliver or cause to be delivered to Seller, against delivery of
the assignment conveying the Leases to Purchaser, immediately available funds
("Funds") in the amount of the Price.
3. Allocation of Price. The Price shall be allocated among the
Leases as set forth on Exhibit B attached hereto.
4. Representations and Warranties by Seller. In order to induce
Purchaser to enter into this Agreement and each transaction contemplated
hereby, Seller represents and warrants to Purchaser as follows:
(a) Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Texas.
(b) Authority. Seller has full power necessary, and has taken
or by the Closing will have taken all action necessary, to authorize the
execution, delivery and performance hereof by Seller. The execution,
delivery and performance hereof by Seller will not conflict with nor
result in a violation or breach of the terms or provisions of (i) the
articles of incorporation or bylaws of Seller, (ii) any agreement to
which Seller is a party or by which Seller or any of its properties or
assets are bound, or (iii) any judgment, statute, rule or governmental
regulation applicable to Seller.
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(c) Validity and Enforceability. When this Agreement is
signed by all parties hereto, it will be a valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms.
(d) Title. Seller has good and marketable title to the Leases
free and clear of all liens, security interests, mortgages, pledges,
preferential purchase rights or other encumbrances or claims other than
(i) tax liens arising in the ordinary course of business with respect to
obligations not yet due, and (ii) imperfections of title and
encumbrances which are not material in character, amount or extent and
do not detract from the value nor interfere with the use of the Leases
subject thereto or affected thereby or which will otherwise impair the
operations to be conducted thereon.
(e) Interests in Costs and Production. The percentage
interests of Seller's participation in the total costs to be incurred in
connection with the Leases are as set forth on Exhibit A, and the
decimal interests of Seller's participation in the total production of
oil and gas to be produced and saved from the Leases are as set forth on
Exhibit A.
(f) Actual Costs. The Price equals the sum of (i) the actual
price paid by Seller for the Leases, including lease bonuses, advance
rentals and other acquisition costs and delay rentals, plus (ii) title
examination costs, brokers' commissions, attorneys' fees, filing fees,
recording costs and transfer and sales taxes, if any, and other similar
costs actually paid by Seller with respect to the acquisition of the
Leases.
(g) Leases. To the knowledge of Seller, the Leases are in
full force and effect. Seller has not been advised by any lessor of any
default under any Lease. Seller has not taken any action or failed to
take any action which would cause any Lease to fail to be in full force
and effect or allow any lessor to terminate any Lease.
(h) Taxes. All ad valorem and other taxes due and payable
with respect to the Leases have been fully paid.
(i) Consents. All consents and approvals of third parties,
including any regulatory authority, whether required contractually, by
operation of law or otherwise, which are necessary for the consummation
by Seller of the transactions contemplated hereby have been or by the
Closing will be obtained.
(j) No Litigation. No litigation, proceeding or governmental
investigation is pending or, to Seller's knowledge, threatened,
affecting the Leases.
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(k) No Broker or Finder. Seller has not agreed to pay any
party a commission, finder's fee or similar payment in regard to this
Agreement or any matter related hereto nor taken any action on which a
claim for any such payment could be based.
5. Representations and Warranties by Purchaser. In order to induce
Seller to enter into this Agreement and each transaction contemplated hereby,
Purchaser represents and warrants to Seller as follows:
(a) Organization. Purchaser is a limited partnership duly
formed under the Texas Revised Limited Partnership Act. The general
partner of Purchaser (the "General Partner") is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Texas.
(b) Authority. Purchaser has full power necessary, and has
taken or by the Closing will have taken all action necessary, to
authorize the execution, delivery and performance hereof by Purchaser.
The General Partner has full power necessary, and has taken or by the
Closing will have taken all action necessary, to authorize the
execution, delivery and performance hereof by the General Partner on
behalf of Purchaser. The execution, delivery and performance hereof by
Purchaser will not conflict with nor result in a violation or breach of
the terms or provisions of (i) the partnership agreement governing
Purchaser, (ii) any agreement to which Purchaser is a party or by which
Purchaser or any of its properties or assets are bound or (iii) any
judgment, statute, rule or governmental regulation applicable to
Purchaser. The execution, delivery and performance hereof by the
General Partner on behalf of Purchaser will not conflict with nor result
in a violation or breach of the terms or provisions of (i) the articles
of incorporation or bylaws of the General Partner, (ii) any agreement to
which the General Partner is a party or by which the General Partner or
any of its properties or assets are bound or (iii) any judgment,
statute, rule or governmental regulation application to the General
Partner.
(c) Validity and Enforceability. When this Agreement is
signed by all parties hereto, it will be a valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its
terms.
(d) Consents. All consents and approvals of third parties,
including any regulatory authority, whether required contractually, by
operation of law or otherwise, which are necessary for the consummation
by Purchaser of the transactions contemplated hereby have been or by the
Closing will be obtained.
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(e) No Broker or Finder. Purchaser has not agreed to pay any
party a commission, finder's fee or similar payment in regard to this
Agreement or any matter related hereto nor taken any action on which a
claim for any such payment could be based.
6. Actions before the Closing. Seller and Purchaser covenant that
before the Closing:
(a) Availability of Data and Files. Seller shall make
available to Purchaser's representatives all land files, lease files,
abstracts, title opinions, seismic data or files and any interpretations
of such data or files in the possession of Seller or its counsel and
relating exclusively to the Leases.
(b) Examination of Title. Purchaser shall make such
examination of title to the Leases as it deems necessary or desirable.
At or before 5:00 p.m., central standard time, on April 21, 1995,
Purchaser shall furnish written notice to Seller stating whether or not
Purchaser has found Seller's title to the Leases to be as represented in
Section 4 hereof. If Seller's title is not found to be so, said written
notice shall specify the objections to Seller's title to the Leases.
Thereafter, Seller shall use its best efforts to satisfy any such
objections. If Purchaser does not furnish said written notice at or
before 5:00 p.m., central standard time, on April 21, 1995, Purchaser
shall be deemed to have no objection to Seller's title to the Leases.
(c) Preserve Accuracy of Representations and Warranties.
Seller and Purchaser each shall use its best efforts to refrain from
taking any action which would render any representation or warranty
contained in Section 4 or 5 hereof inaccurate as of the Closing. Seller
promptly will notify Purchaser of any litigation, proceeding or
governmental investigation that may be threatened or commenced against
Seller involving in any way (i) this Agreement or the transactions
contemplated hereby or (ii) any Lease.
(d) Approvals. Seller and Purchaser each have taken or by the
Closing will have taken all action necessary under applicable law to
approve this Agreement and the transactions contemplated hereby.
7. Closing. The closing ("Closing") of the sale and purchase
contemplated hereby will take place either (a) at the offices of Purchaser, 000
Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx, at 10:00 a.m. on April 24, 1995,
or (b) at any other place, date and time agreed upon by Seller and Purchaser.
At Closing:
(a) Deliveries by Seller. Seller will deliver or cause to be
delivered to Purchaser:
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(i) Two counterparts of an assignment, in the form
attached as Exhibit C, conveying the Leases to Purchaser; and
(ii) The certificate contemplated by Section 8(c).
(b) Deliveries by Purchaser. Purchaser will deliver or cause
to be delivered to Seller:
(i) The Funds; and
(ii) The certificate contemplated by Section 9(c).
8. Conditions Precedent to Obligation of Purchaser. The obligation
of Purchaser to proceed with the Closing is subject to the following
conditions:
(a) Representations. All representations and warranties of
Seller herein will be true in all material respects at the time of the
Closing;
(b) Covenants. All covenants and agreements required hereby
to be performed by Seller before the Closing will have been performed in
all material respects; and
(c) Certificate. Seller will have delivered to Purchaser an
appropriate certificate as to the foregoing.
9. Conditions Precedent to Obligation of Seller. The obligation of
Seller to proceed with the Closing is subject to the following conditions:
(a) Representations. All representations and warranties of
Purchaser herein will be true in all material respects at the time of
the Closing;
(b) Covenants. All covenants and agreements required hereby
to be performed by Purchaser before the Closing will have been performed
in all material respects; and
(c) Certificate. Purchaser will have delivered to Seller an
appropriate certificate as to the foregoing.
10. Termination. This Agreement may be terminated:
(a) By Purchaser. By Purchaser if any condition provided in
Section 8 hereof has not been satisfied or waived before the Closing;
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(b) By Seller. By Seller if any condition provided in Section
9 hereof has not been satisfied or waived before the Closing; or
(c) By Either Party. By Seller or Purchaser if the Closing
has not occurred on or before April 30, 1995.
11. Taxes.
(a) Apportionment of Ad Valorem and Real Property Taxes. All
ad valorem taxes, real property taxes and similar tax obligations with
respect to the Leases for the calendar year 1995 shall be apportioned as
of the Closing. Purchaser shall file or cause to be filed all required
reports and returns incident to such taxes and shall pay or cause to be
paid to the taxing authorities all such taxes relating to the calendar
year 1995, and Purchaser shall invoice Seller (with copies of applicable
tax bills and assessments to confirm same) for Seller's apportioned
share of such taxes, and Seller shall pay the same within thirty (30)
days of receipt.
(b) Sales Taxes. The Price is net of any sales taxes or other
transfer taxes in connection with the sale of the Leases. Purchaser
shall be liable for any sales tax or other transfer tax, as well as any
applicable conveyance, transfer and recording fees, and transfer stamps
or taxes imposed on the transfer of the Leases pursuant to this
Agreement.
12. Miscellaneous.
(a) Further Assurances. Seller will, at any time and from
time to time after the Closing, upon Purchaser's request, execute,
acknowledge and deliver or cause to be executed, acknowledged and
delivered, all further documents or instruments required in connection
with the assignment and conveyance of the Leases to Purchaser.
(b) Assignment. Between the time of execution hereof and the
Closing, neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof may be assigned by any
party without the consent of the other party hereto. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns.
(c) Expenses. Whether or not the transactions herein
contemplated shall be consummated, Seller and Purchaser each shall pay
its own expenses incident hereto and to preparing to consummate the
transactions provided for herein.
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(d) Texas Law to Govern. THIS AGREEMENT IS BEING SIGNED AND
DELIVERED AND IS INTENDED TO BE PERFORMED IN TEXAS AND IS TO BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF TEXAS.
(e) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, and it shall not be
necessary that the signatures of all parties hereto be contained on any
one counterpart hereof. Each counterpart shall will be deemed an
original, but all counterparts together shall constitute one and the
same instrument.
(f) Survival. The representations and warranties contained in
Section 4(d) and (e) shall expire at the Closing. Such expiration shall
not affect the special warranty of title of Seller in the assignment
delivered to Purchaser pursuant to Section 7(a)(i). The
representations, warranties, covenants and agreements set forth
elsewhere herein shall survive the execution and delivery hereof and the
consummation of the transactions contemplated hereby and shall expire in
accordance with the applicable statute of limitations.
(g) Integration. THIS AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES OR BY
EVIDENCE OF PRIOR OR WRITTEN CONTEMPORANEOUS AGREEMENTS OF THE PARTIES.
(h) Amendment, Waiver and Cooperation. This Agreement may be
amended only by a written instrument signed by Seller and Purchaser.
Seller or Purchaser may waive any condition to its own obligations
hereunder. Seller and Purchaser each will use its best efforts and good
faith in satisfying all conditions to its obligations.
(i) Notice. All notices hereunder shall be in writing and
shall be mailed first class or express mail, postage prepaid, or sent by
telegram, telecopy or other similar form of rapid transmission confirmed
by mailing (by first class or express mail, postage prepaid) written
confirmation at substantially the same time as such rapid transmission,
or personally delivered to any individual designated of the receiving
party. All such notices shall be mailed, sent or delivered as follows:
If to Seller: Xxxxxx Gas Co., Inc.
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
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If to Purchaser: Titan Resources, L.P.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopy Number: (000) 000-0000
Any notice so addressed and mailed shall be deemed to be given three (3)
days after the date so mailed. Any notice so sent by rapid transmission
shall be deemed to be given when receipt of such transmission is
acknowledged. Any communication so delivered in person shall be deemed
to be given when receipted for by, or actually received by, such person.
Seller or Purchaser may, by proper written notice hereunder to the other
party, change the address, individual or telecopy number to which notice
shall thereafter be sent to such party.
In order to evidence the foregoing, Seller and Purchaser have duly
executed this Agreement the date first above written.
SELLER:
XXXXXX GAS CO., INC.
By:/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx,
President
PURCHASER:
TITAN RESOURCES, L.P.
By: Titan Resources I, Inc.,
General Partner
By:/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx,
President
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