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EXHIBIT 10.35
EXPLORATION AGREEMENT
AND
AGREEMENT TO ASSIGN
XXXXX-XXXXX, L.L.C.
AND
ENERGY PARTNERS, LTD.
AUGUST 25, 1998
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EXPLORATION AGREEMENT AND AGREEMENT TO ASSIGN
XXX XXXXXXXX FIELD
OCS - GULF OF MEXICO
STATE OF LOUISIANA )
PARISH OF ORLEANS )
KNOW ALL MEN BY THESE PRESENTS THAT:
THIS AGREEMENT is made and entered this 25th day of August, 1998 and is
effective the 15th day of August, 1998, by and between XXXXXX-XXXXX, L.L.C.,
a Delaware limited liability company, whose address is Mtel Centre South, Suite
800, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, hereinafter sometimes
referred to as "HRL" and ENERGY PARTNERS, LTD., a Delaware corporation, whose
address is 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000,
hereinafter sometimes referred to as "EPL".
WITNESSETH:
WHEREAS, HRL represents that it has acquired the right to conduct
certain operations on the oil and gas leases, hereinafter referred to as the
"LEASES", described in EXHIBIT "A" attached hereto and made a part hereof, and
is the sole farmoutee under that certain Farmout Agreement dated August 25, 1998
and effective the 15th day of August, 1998, from Chevron U.S.A. Inc.
("Chevron"), as farmoutor, hereinafter referred to herein as "FARMOUT
AGREEMENT", a copy of which is attached hereto as EXHIBIT "B".
WHEREAS, HRL desires to convey an undivided thirty percent (30%)
interest in the Farmout Agreement to EPL, subject to the terms and conditions
provided hereafter, and EPL is desirous of receiving such assignment on said
terms and conditions.
NOW, THEREFORE, for and in consideration of the premises and of the
mutual covenants and agreements herein contained, it is hereby agreed by and
between the parties hereto as follows:
ARTICLE I.
ASSIGNMENT
In consideration of the cash payment provided for in Article II hereinbelow and
other considerations, the receipt and sufficiency of which are hereby
acknowledged, HRL hereby agrees to transfer and assign unto EPL an undivided
thirty percent (30%) interest in the Farmout Agreement and all interests earned
or to be earned thereunder, subject to the following terms and conditions:
1. The assignment shall be made with a limited warranty of title as to
any and all claims by third parties, including but not limited to any
liens or encumbrances, arising by, through or under HRL, and shall be
made with full subrogation to all rights granted by Chevron in the
Farmout Agreement.
2. The assignment shall be made subject to the terms, covenants and
conditions of the following:
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a. the Farmout Agreement;
b. the Leases;
c. this Agreement;
d. that certain Confidentiality Agreement, dated June
17, 1998, by and between the HRL and EPL;
e. EPL's thirty percent (30%) of the overriding
royalty interest created or to be created in favor
of Xxxxxx Exploration Company (as set forth in the
EXHIBIT "C"), as well as its proportionate share
of all royalties, overriding royalties and other
leasehold burdens created by Chevron U.S.A. Inc.
or its predecessors in title and existing of
record as of August 15, 1998;
f. Consent to Assignment of Farmout Agreement dated
August 25, 1998 and effective August 15, 1998 --
Bay Xxxxxxxx Block 2 Field, by and between EPL,
HRL and Chevron, a copy of which is attached
hereto as EXHIBIT "D"; and
g. The Assignment by and between EPL and HRL,
attached hereto as EXHIBIT "E".
3. Both parties shall provide geological and geophysical services
for operations under the Farmout Agreement. HRL and EPL shall
share all relevant data and interpretations.
4. In the event that the Farmout Agreement is terminated pursuant
to Article 27 of said agreement, then this Agreement shall
terminate. The parties shall have no further rights or
obligations hereunder, except that the Cash Payment made by EPL
pursuant Article II shall be returned to EPL and any costs or
expenses referred to in Article II shall be paid by HRL, as to
its proportionate part, as contemplated herein.
5. HRL agrees to indemnify and hold harmless EPL and its officers,
directors, employees, representatives and agents from and
against any and all claims, costs, demands, judgments and
expenses arising from or related to the Xxxxxx Exploration
Company, with the exception of the override obligations set
forth in (e) above.
ARTICLE II.
CASH PAYMENT
As partial consideration hereunder, EPL has delivered unto HRL a
check in the amount of $75,000 (30% x $250,000), said amount being referred
to herein as the "Cash Payment".
In addition, EPL and HRL shall share all title examination costs
incurred by EPL with the Xxxxxx, Xxxxx Law Firm and any broker, abstracter
and/or xxxxxxx pertaining to this Agreement and the Farmout Agreement on a
50/50 basis. Upon receipt of an invoice from EPL for said costs, including
copies of the title opinion and
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title documents used in preparing same, HRL agrees to pay its proportionate
share to EPL within fifteen (15) days of receipt thereof.
ARTICLE III.
PARTICIPATION
All costs incurred in operations pursuant to the Farmout Agreement
(including but not limited to insurance costs) shall be borne and paid, and all
leasehold interest earned (except as otherwise set forth herein) and equipment
and materials acquired for operations under this Agreement shall be owned by the
parties as their interests are set forth below. EPL shall cash call HRL for all
such costs or expenses. "EXPLORATORY WELL" as used below shall mean the
exploratory test well to test the 11,800' sand on the East Flank of Bay Xxxxxxxx
Field.
All Xxxxx Except Exploratory Well Working Interest
--------------------------------- ----------------
XXXXXX- XXXXX, L.L.C. 70.000000%
ENERGY PARTNERS, LTD. 30.000000%
Working Interest Working Interest
Exploratory Well Drilling & Completion After Completion
---------------- ---------------------- ----------------
XXXXXX- XXXXX, L.L.C. 65.000000% 70.000000%
ENERGY PARTNERS, LTD. 35.000000% 30.000000%
The actual leasehold interests and corresponding net revenue interests to be
earned under the Farmout Agreement are subject to proportionate reduction
according to the terms of such Farmout Agreement.
ARTICLE IV.
DESIGNATION OF OPERATOR
(A) Under the terms of the Farmout Agreement, HRL is obligated to
conduct certain workover and drilling operations, as exhibited therein, on the
Leases at specified intervals and commencing on or before September 1, 1998.
Upon EPL's execution hereof, HRL hereby nominates and appoints EPL as Operator
for and on behalf of HRL under the Farmout Agreement. HRL shall assist EPL in
securing from Chevron, as well as all other necessary parties, the documentation
necessary for EPL to file with the appropriate governmental agency having
jurisdiction the required forms designating EPL as operator of the xxxxx under
the Farmout Agreement. EPL represents and warrants, and covenants and agrees,
that (I) it is currently qualified to conduct operations on the Outer
Continental Shelf in accordance with all Minerals Management Service regulations
and will cause itself to remain qualified during the term of this Agreement and
(II) it will obtain all permits from the Louisiana State Mineral Board ("SMB")
necessary for operations in Louisiana state waters and shall cause such permits
to remain in effect, including, the timely filing of all reports required to be
filed by the SMB.
(B) "Operator" (as designated herein) shall timely commence all
operations, as required under the Farmout Agreement, and shall prosecute said
operations as a prudent operator so as to fully comply with all of the required
material obligations contained in the Farmout Agreement or this Agreement. In
the event that EPL
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fails to do so (with exception of any breach which is caused by either the
Farmoutor of the Farmout Agreement or HRL), this agreement shall, at HRL's
option, terminate and HRL may appoint a new Operator. EPL shall, however,
retain any interest previously earned based upon Well Operations completed
or operations being performed prior to the date of termination. HRL, or
its designee, may, at its option, take over as Operator and use well
equipment placed thereon by EPL (subject to contractor consent) and complete
said operations at HRL's sole expense and liability; however, the exercise
of this option shall in no way relieve EPL from liability for damages,
including liquidated damages, if any, as provided in the Farmout Agreement,
accruing to HRL as a result of EPL's default. Notwithstanding any other
provision in this Agreement, in no event shall EPL be liable to HRL for
punitive, consequential, indirect, loss of profit, loss of production or
reservoir, or any other such damages. Following such removal, EPL shall not
be entitled to earn any interest in future operations. Upon any material
breach by HRL of the Farmout Agreement or this Agreement (with exception
of any breach which is caused by either the Farmoutor of the Farmout
Agreement or EPL), HRL shall relinquish its right to earn any additional
interests in the Leases. In such event, at its sole option, EPL may demand
that, at no additional cost, HRL convey in favor of EPL all of its rights in
the Farmout Agreement, reserving only those rights or interests they have
earned in operations or xxxxx completed before the default or operations
being performed. The exercise of such option shall in no way relieve HRL
from liability for damages, including liquidated damages, if any, as
provided in the Farmout Agreement, accruing to EPL as a result of HRL's
default.
(C)(1) Obligation Xxxxx. The Farmout Agreement sets forth eight
(8) Major Operations to be conducted on Obligation Xxxxx. The parties have
agreed to timely perform such Major Operations in such a manner as to cause
the parties hereto to earn interests under such Farmout Agreement. EPL, as
Operator, shall propose an AFE for each such Major Operation to HRL and
Farmoutor according to the terms of the Farmout Agreement. HRL shall have
the same time periods provided for Farmoutor in the Farmout Agreement to
approve such AFE. Should Farmoutor approve such AFE and HRL disapprove, EPL
shall notify HRL and HRL shall have three days to reconsider such AFE as
approved by Farmoutor. Should HRL not approve such AFE as approved by
Farmoutor (provided such operations are conducted), HRL shall be deemed to
have relinquished its rights to earn any additional interest under the terms
of the Farmout Agreement. Should HRL and Farmoutor both disapprove of such
AFE, EPL shall, within ten days thereafter, resubmit a revised AFE to HRL
and Farmoutor incorporating revisions reasonably reflecting any comments of
Farmoutor to the first AFE. Should HRL not approve such revised AFE
(provided such operations are conducted), HRL shall be deemed to have
relinquished its rights to earn any additional interest under the terms of
the Farmout Agreement. In such event, at its sole option, EPL may demand
that, at no additional cost, that HRL convey in favor of EPL all of their
rights in the Farmout Agreement, reserving those rights or interests they
have already earned in operations or xxxxx completed before disapproval or
operations being performed at the time of disapproval; however, the exercise
of this option shall in no way relieve HRL from liability for damages,
including liquidated damages, if any, as provided in the Farmout Agreement.
In the event that EPL should elect to decline to participate in the drilling
of one of the Major Operations to be conducted on the eight Obligation
Xxxxx, EPL shall be deemed to have relinquished its right to earn any
additional interest under the terms of the Farmout Agreement. In such event,
at its sole option, HRL may demand that, at no additional cost, that EPL
convey in favor of HRL all of its rights in the Farmout Agreement, reserving
those rights or interests it has already earned in operations or xxxxx
completed before the disapproval or operations being performed at the time
of disapproval; however, the exercise of this option shall in no way relieve
EPL from liability for damages, including liquidated damages, if any, as
provided in the Farmout Agreement.
(C)(2) Mandatory Optional Xxxxx. The Farmout Agreement also
provides for the option to conduct additional Major Operations covering the
drilling of Optional Xxxxx. The parties have agreed to timely perform Major
Operations covering the drilling of Optional Xxxxx, which such Operations
are necessary and required in order to perpetuate the right to earn
additional interests under such Farmout Agreement ("Required Operations").
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EPL, as Operator, shall propose an AFE for each such Required Operation to HRL
and Farmoutor according to the terms of the Farmout Agreement. HRL shall have
the same time periods provided for Farmoutor in the Farmout Agreement to approve
such AFE. Should Farmoutor approve such AFE and HRL disapprove, EPL shall notify
HRL and HRL shall have three days to reconsider such AFE as approved by
Farmoutor. Should HRL not approve such AFE as approved by Farmoutor (provide
such operations are conducted), HRL shall be deemed to have relinquished its
rights to earn any additional interest under the terms of the Farmout Agreement
as to those rights being perpetuated by the Required Operations. Should HRL and
Farmoutor both disapprove of such AFE, EPL shall, within ten days thereafter,
resubmit a revised AFE to HRL and Farmoutor incorporating revisions reasonably
reflecting any comments of Farmoutor to the first AFE. Should HRL not approve
such revised AFE (provided such operations are conducted), HRL shall be deemed
to have relinquished its rights to earn any additional interest under the terms
of the Farmout Agreement, as to those rights being perpetuated by the Required
Operations. In such event, at its sole option, EPL may demand that, at no
additional cost, that HRL convey in favor of EPL all of their rights in the
Farmout Agreement, reserving those rights or interests they have already earned
in operations or xxxxx completed before disapproval or operations being
performed at the time of disapproval and the right to earn additional rights
under the Farmout Agreement, to the extent that such rights may still exist,
which rights were not perpetuated by this Required Operations; however, the
exercise of this option shall in no way relieve HRL from liability for damages,
including liquidated damages, if any, as provided in the Farmout Agreement. In
the event that EPL should elect to decline to participate in a Required
Operations, EPL shall be deemed to have relinquished its right to earn any
additional interest under the terms of the Farmout Agreement only to the extent
of the rights which were perpetuated by the Required Operations. In such event,
at its sole option, HRL may demand that, at no additional cost, that EPL convey
in favor of HRL all of its rights in the Farmout Agreement, reserving those
rights or interests it has already earned in operations or xxxxx completed
before the disapproval or operations being performed at the time of disapproval
and the right to earn additional rights under the Farmout Agreement to the
extent that such rights may still exist, which rights were not perpetuated by
this Required Operations; however, the exercise of this option shall in no way
relieve EPL from liability for damages, including liquidated damages, if any, as
provided in the Farmout Agreement.
(C)(3) Notwithstanding anything to the contrary contained herein,
prior to relinquishment of all rights under the Farmout Agreement, either HRL or
EPL shall have the right to propose operations to be conducted pursuant to the
terms of the Farmout Agreement.
(D) With respect to AFE submittals by Chevron, EPL and HRL shall have
the time periods set forth in the Farmout Agreement to approve or disapprove of
such AFE proposal. In the event that EPL or HRL, but not both, disapprove of
such AFE, the party approving such AFE shall have the right to notify Chevron of
its approval and the disapproving party shall relinquish its rights to earn any
interest in such Well Operation under the terms of the Farmout Agreement,
provided that the operations proposed are conducted. The approving party shall
be responsible for 100% of any costs and expenses incurred with respect to such
operations.
(E) Under Section 4.2. of the Farmout Agreement, failure to timely
commence and complete eight (8) Major Operations requires that specified
liquidated damages will be paid by Farmoutee to Farmoutor. In the event that HRL
or EPL (but not both) elects to discontinue participation prior to completion of
such eight (8) Major Operations in the Farmout Agreement, the party electing
not to participate shall pay the other party an amount equal to the
discontinuing party's share of such liquidated damages which would become due
and payable under the terms of the Farmout Agreement at the time of the
discontinuance, whether or not such liquidated damages are ever paid to
Farmoutor. This provision shall in no way relieve the party electing not to
participate from liability to Chevron U.S.A. Inc. (excluding liability for
liquidated damages) pursuant to the terms of the Farmout Agreement for damages
previously incurred or which may become due in the future.
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If a party declines or is deemed to have declined to participate in all AFE
elections for Major Operations on an Obligation Well (provided such operations
are conducted), then for purposes of this provision such party shall be deemed
to have elected to discontinue participation in such eight Major Operations.
(F) The parties agree that with respect to all operations to be
conducted pursuant to the Farmout Agreement, less and except (i) any Major
Operations on Obligation Xxxxx and/or (ii) any Major Operations on Optional
Xxxxx only if same are necessary to perpetuate the right or ability to earn
additional interests pursuant to the Farmout Agreement, the non-consent penalty
provisions of the first but not the second paragraph of Article IX.E of the
joint operating agreement described in Article V. hereinafter shall apply as to
all other operations conducted pursuant to the Farmout Agreement by the parties.
ARTICLE V.
OPERATING AGREEMENT
All EPL operations conducted on the Leases pursuant to the Farmout
Agreement shall comply with the requirements of the South Bay Xxxxxxxx Unit
Operating Agreement dated June 28, 1957, as amended (the "OPERATING AGREEMENT").
All costs and expenses incurred in operations conducted pursuant to this
agreement shall be charged in accordance with Article III hereof and as set
forth in Accounting Procedure attached to the Operating Agreement.
Notwithstanding anything to the contrary contained herein or in the Operating
Agreement, in the event of a conflict or inconsistency between the terms and
provisions of this Agreement and those of the Operating Agreement, it is
stipulated that the terms and provisions of this Agreement shall prevail as to
the interests of the parties hereunder.
ARTICLE VI.
INSURANCE
EPL, as Operator, will be required to maintain and carry insurance
coverage for the joint account that meets the minimum requirements under the
terms and provisions of the Farmout Agreement (Section 17.) and as may be
required by the Minerals Management Service (MMS), applicable laws, ordinances,
and regulation of any other governmental authority having jurisdiction,
whichever is higher. During the term of this Agreement, said Operator agrees to
carry those insurance requirements set forth on EXHIBIT "F" and in accordance
with Section 17 of the Farmout Agreement, for the account of EPL and HRL. The
parties agree that the cost of such insurance shall be borne by the parties in
accordance with the provisions of the terms of Article III hereof.
ARTICLE VII.
OTHER PROVISIONS
A. Management and Control:
EPL shall, subject to the terms hereof, direct and have full
control of all operations to be conducted on the Leases as permitted
and required under the terms of the Farmout Agreement. Either party may
call a meeting at any time for the purpose of discussing operations
hereunder. Unless agreed to otherwise, all meetings shall be held at
EPL's office at 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000
until notice otherwise is given by EPL.
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B. Consent to Assign:
Neither Party shall assign any rights under this Agreement, or
any interest which they may acquire under the Farmout Agreement,
without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided that EPL may assign such
interests to its financing organizations. Any other assignment or
transfer shall be made expressly subject to this Agreement and each
assignee to any assignment or transfer shall expressly assume and agree
to carry out all of the assigning party's obligations under this
Agreement to the extent of the rights and interests assigned or
transferred. Assignment as used herein shall be defined to include any
change of control of the ownership or management of a party, howsoever
occurring, including without limitation by merger, stock sale or
corporate reorganization.
C. Term of Agreement:
This Agreement shall continue in force and effect, unless
terminated sooner in writing by the mutual consent of the parties
hereto, for so long as drilling or well reworking operations are being
conducted on the Leases in accordance with the terms of this Agreement
and/or the Farmout Agreement, or so long as production in paying
quantities, attributable to any rights and interests earned by the
parties hereunder, can be produced from the Leases.
D. Liability:
It is not the purpose of this Agreement to create a
partnership, mining partnership, partnership for a specific purpose,
joint venture, agency relationship, or any other relationship, which
would render the parties liable as partners, associates, or joint
venturers. Each party hereto agrees to bear its ownership percentage,
according to the percentage, set forth in Article III (subject to
modification by the terms and provisions of the Farmout Agreement) of
all costs, expenses and liabilities incident hereunder to the drilling,
re-entering, equipping, completing, operating, and plugging and
abandoning of any well hereunder and for producing oil and gas
therefrom, and for any injury to any persons (including death), for any
other damages resulting from such operations and any liquidated damages
arising under the Farmout Agreement.
E. Entire Agreement
The terms and provisions set forth herein constitute the entire
agreement between HRL and EPL and any prior agreements, promises,
negotiations or representations between HRL and EPL pertaining to the
Farmout Agreement, which are not expressly set forth in this Agreement
are of no force and effect.
F. Binding Agreement:
The terms, covenants and conditions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
to their respective heirs, devisees, legal representatives, successors
and assigns, and such terms, covenants and conditions shall be deemed
as covenants running with the lands, the Leases and any other interests
covered hereby and with each transfer or assignment of said lands or
leases.
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G. Information and Data:
Notwithstanding anything to the contrary contained herein, it
is agreed that each party to this Agreement shall furnish to each
other, when requested, to the extent permitted by law or contractual
obligation, any and all information and data of every kind and
character, including but not limited to seismic data, core reports,
logs, well tests, production tests and reports, joint operations costs,
and revenue data and reports, relative to the Leases covered by the
Farmout Agreement.
H. Notices:
All notices and demands provided hereunder shall be in writing and
shall be given by registered or certified mail, return receipt
requested, telecopy, air courier guaranteeing overnight delivery or
personal delivery to the following addresses:
Xxxxxx-Xxxxx, L.L.C. (000)000-0000
Mtel Centre South, Suite 000 (000)000-0000 Fax
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Energy Partners, Ltd. (504)569-1875
0000 Xxxxxxx Xxxxxx (000)000-0000 Fax
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
or to such other address as the Farmoutor and Farmoutee may designate
in writing. All other communications may be by regular mail. All
notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; two days after
being sent by certified mail, return receipt requested, if mailed; when
receipt acknowledged, if telecopied; and on the next Business Day if
timely delivered to an air courier guaranteeing overnight delivery.
I. Survival:
The terms of the Article VII, Paragraph D. shall survive the
termination of this Agreement or the removal of the Operator under
Article IV (B).
J. Definitions:
The parties hereto agree that terms not defined herein shall be given
the definition set forth in the Farmout Agreement. However, in the
event of a conflict or inconsistency between the terms and
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provisions of this Agreement and the Farmout Agreement, it is
stipulated that the terms and provisions of this Agreement shall
prevail as to the interests of the parties hereunder.
K. This Agreement shall be interpreted in accordance with the laws of the
State of Louisiana.
IN WITNESS WHEREOF, this instrument is executed before the undersigned
competent witnesses in duplicate by each of the parties hereto as of the date
hereinabove first written.
WITNESSES: XXXXX-XXXXX, L.L.C.
/s/ XXXXX X. XXXX
--------------------------------- By: /s/ XXXXX X. XXXXX
------------------------------
Name: XXXXX X. XXXX Xxxxx X. Xxxxx
---------------------------- President
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/s/ XXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXX
----------------------------
(Please Print)
/s/ XXXXX X. XXXX
--------------------------------- ENERGY PARTNERS, LTD.
Name: XXXXX X. XXXX
----------------------------
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/s/ XXXXXX X. XXXXXXX
--------------------------------- By: /s/ XXXXXXX X. XXXXXXX
------------------------------
Name: XXXXXX X. XXXXXXX Xxxxxxx X. Xxxxxxx
---------------------------- President
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