EXHIBIT 10.77
ASSET SALES AGREEMENT
This Asset Sales Agreement (the "Agreement"), dated the 14th day of
February, 2007, is by and between FOREST ALASKA OPERATING LLC, a Delaware
limited liability company ("Seller") on the one hand, and PIONEER NATURAL
RESOURCES ALASKA, INC., a Delaware corporation ("Buyer") on the other hand.
In consideration of the mutual promises herein stated and the benefits to
be derived to each party under this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:
1. Sale and Purchase. Seller agrees to sell and convey to Buyer and Buyer
agrees to purchase and receive, on and subject to the terms, provisions and
conditions hereof, the Assets. Seller and Buyer each acknowledge that the sale
of assets documented hereby is being made pursuant to the exercise of Buyer of a
preferential right to purchase, which election was made in the correspondence
attached hereto as Annex I.
2. The Assets. For purposes of this Agreement, the Assets shall mean those
certain rights and interests set forth in Exhibit "A", attached hereto and made
a part hereof for all purposes, in and to:
(a) the undivided interests in the leases, licenses, permits, farmouts
and other agreements and documents described in Exhibit "A", together with
identical undivided interests in and to all of the property and rights
incident thereto, including all rights in, to and under all agreements
covering said leases and lands insofar as and to the extent that they cover
and relate to the lands described or referred to in Exhibit "A" and to the
extent same are valid, subsisting and enforceable, with the exception of
the overriding royalty interest described on Exhibit "B", that shall be
retained by Seller (the "ORRI");
(b) to the extent they cover and relate to the lands described or
referred to on Exhibit "A", all personal property, fixtures and
improvements now located on, appurtenant to or used or obtained in
connection with the interests described in Section 2(a) above, or with the
production, treatment, sale or disposal of hydrocarbons produced therefrom
or attributable thereto; and
(c) to the extent they cover and relate to the lands described or
referred to on Exhibit "A", all other rights or other interests if any
owned by Seller and held or used in connection with the interests described
in Section 2(a) above.
3. Consideration. The consideration for the Interests to be transferred at
Closing shall be:
(a) the cash payment from Buyer to Seller at Closing in the amount of
One Million Five Hundred Thousand Dollars ($1,500,000.00) ("Purchase
Price"), which amount shall be adjusted as provided in Section 5 below; and
(b) THIS SECTION INTENTIONALLY LEFT BLANK;
(c) the assumption by Buyer of the obligations, liabilities and costs
with respect to the Interests from and after the Effective Date, subject to
the further provisions hereof.
4. Effective Date. The "Effective Date" of the sale shall be as of 7:00
a.m., January 1, 2007.
5. Allocation of Liability and Adjustments to Consideration.
(a) The transactions contemplated hereby shall be effective as of the
Effective Date, and the ownership of the Assets shall be transferred from
Seller to Buyer as of such date.
(b) The Purchase Price to be paid by Buyer to Seller for the Assets
shall be adjusted as follows:
(i) upward by an amount equal to all costs and expenses incurred
and paid by Seller attributable to the ongoing operation, development
and maintenance of the Assets (including without limitation lease
operating expenses and workover and other capital costs that are
charged pursuant to the applicable operating agreements governing the
Assets) for the period of time on and after the Effective Date to the
date of Closing, provided however, there shall be no adjustment for
capital expenditures between the Effective Date and Closing unless
Seller has notified Buyer of such expenditures; and,
(ii) downward by an amount equal to all proceeds and revenues
received by Seller that are attributable to the Assets for the period
of time on and after the Effective Date to the date of Closing,
including proceeds or receipts from the sale of oil or gas production,
disposition of equipment or other revenues attributable to the Assets.
(c) An estimate of the adjusted cash payment (the "Preliminary Sum")
shall be determined by Seller at Closing and shall be the basis for the
payment to be made by Buyer to Seller at Closing as provided in Section 6
below. Following Closing, Seller shall prepare a final statement
("Settlement Statement") setting forth all final adjustments to the cash
portion of the consideration, and Seller shall deliver such statement, with
such other information as may be necessary to substantiate the Settlement
Statement, to Buyer within 90 days after Closing. If the Settlement
Statement reflects that the final adjusted cash portion of the
consideration is more than the Preliminary Sum, Buyer shall pay to Seller,
within 15 days after the receipt of the Settlement Statement, the
difference between the final adjusted cash amount and the Preliminary Sum;
and if the final adjusted amount is less than the Preliminary Sum, Seller
shall pay to Buyer, within 15 days after the delivery of the final
Settlement Statement, an amount equal to such difference.
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(d) Subject to the terms hereof and except to the extent same have
already been taken into account as an adjustment to the Purchase Price, all
monies, proceeds, receipts, credits and income attributable to the
ownership and operation of the Assets (a) for all periods of time from and
subsequent to the Effective Date, shall be the sole property and
entitlement of Buyer, and to the extent received by Seller, Seller shall
within ten (10) business days after such receipt, fully disclose, account
for and transmit same to Buyer and (b) for all periods of time prior to the
Effective Date, shall be the sole property and entitlement of Seller and,
to the extent received by Buyer, Buyer shall fully disclose, account for
and transmit same to Seller within ten (10) business days after such
receipt. Subject to the terms hereof and except to the extent same have
already been taken into account as an adjustment to the Purchase Price, all
costs, expenses, disbursements, obligations and liabilities attributable to
the Assets (i) for periods of time prior to the Effective Date, regardless
of when due or payable, shall be the sole obligation of Seller and Seller
shall promptly pay, or if paid by Buyer, promptly reimburse Buyer for and
hold Buyer harmless from and against same and (ii) for periods of time from
and subsequent to the Effective Date, regardless of when due or payable,
shall be the sole obligation of Buyer and Buyer shall promptly pay, or if
paid by Seller, promptly reimburse Seller for and hold Seller harmless from
and against same.
6. Closing or Termination.
(a) The closing of the transactions contemplated hereby (the
"Closing") shall occur at the office of Seller in Denver, Colorado or such
other place as the parties shall mutually agree in writing on February 16,
2007. At the Closing, the following shall occur:
(i) Buyer shall deliver to the Seller the Preliminary Sum.
(ii) Seller shall deliver an assignment of the Assets to Buyer on
a form reasonably satisfactory to Seller and Buyer whereby Seller
warrants the title to the Assets covered by this Agreement by, through
and under it, but not otherwise, subject to the remaining provisions
hereof.
(iii) Buyer and Seller shall execute an Overriding Royalty
Agreement defining the terms of the ORRI.
(iv) Buyer shall deliver to Seller evidence that all state and
local bonding requirements for the assumption of working interest have
been satisfied.
7. THIS SECTION INTENTIONALLY LEFT BLANK
8. Title.
8.1 Review of Title Records. Seller has made and shall continue to make
available to
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Buyer, during reasonable business hours, records in Seller's possession
relating to the title to the Assets. Buyer shall be entitled to review said
title records. Buyer shall have the right to reasonably request copies of
any and all such title records and upon such request, Seller shall provide
the requested copies to Buyer at Buyer's expense.
8.2 Alleged Title Defects. As soon as reasonably practicable (and on an
ongoing basis), but in no event later than three (3) business days prior to
Closing, Buyer shall notify Seller of any Assets which are subject to
Alleged Title Defect(s). As used herein, Alleged Title Defect shall mean a
deficiency in title with respect to an Interest such that Seller owns less
than the Net Revenue Interest shown on Exhibit A or such that Seller owns
more than the Working Interest shown on Exhibit A without a corresponding
increase in the Net Revenue Interest. Buyer's notice asserting Alleged
Title Defect(s) shall include a description and full explanation (including
any and all supporting documentation associated therewith) of each Alleged
Title Defect being claimed and a value which Buyer in good faith attributes
to curing the same. Seller shall have the right to notify Buyer of any
increases in Net Revenue Interest or decreases in Working Interest in the
Assets and request a corresponding adjustment. Buyer and Seller shall meet
from time to time as necessary in an attempt to mutually agree on a
proposed resolution with respect to the Alleged Title Defect(s) raised by
Buyer and increases in Net Revenue Interest or decreases in Working
Interest raised by Seller. It is recognized that good faith differences of
opinion may exist between Buyer and Seller in connection with the Alleged
Title Defect(s) raised by Buyer and adjustments to the Net Revenue
Interests or Working Interests raised by Seller, including without
limitation, disputes as to: (a) whether or not the alleged defect
constitutes an Alleged Title Defect within the meaning of this Agreement,
(b) whether or not the Alleged Title Defect raised by Buyer was properly
and timely asserted by Buyer pursuant to this Article, or (c) the
appropriate upward or downward adjustment, if any, on account of a change
in the Net Revenue Interest or Working Interest from those set forth in
Exhibit "A". If any such differences of opinion are not resolved by mutual
agreement of Buyer and Seller, either party shall have the right,
exercisable prior to Closing, to submit all information relating to the
Alleged Title Defect to a mutually agreeable attorney licensed in the state
where the property at issue is located and who shall have at least ten (10)
years oil and gas title experience for resolution of the difference of
opinion. If such dispute is not resolved prior to Closing, Closing shall
proceed on the basis of Seller's valuation, subject to an obligation to
refund any amount, determined under the process outlined above, of any
Title Defect that has been so determined.
8.3 Waiver. All title objections not raised within the time period provided
in Article 8.2 shall be waived by Buyer for all purposes.
9. Indemnification. Buyer shall assume full responsibility for the Assets
on and after the Effective Date and shall fully defend, compensate, protect,
indemnify and hold Seller, its officers, directors, employees and agents,
harmless from and against any and all losses, claims, demands, damages, suits,
expenses, causes of action, and any sanctions of every kind and character
(including reasonable attorneys' fees, court costs, and costs of investigation)
which may
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be made or asserted by Buyer, Buyer's assigns, Buyer's employees, agents,
contractors, and subcontractors and employees thereof, or by any third parties
(including governmental agencies) on account of personal injury, death or
property damage (including claims for taxes, pollution, environmental damage,
and regulatory compliance, any fines or penalties assessed on account of such
damage, and causes of action alleging statutory liability) caused by, arising
out of, or in any way incidental to operations conducted on the Assets on and
after the Effective Date or in any way connected with the conditions of the
equipment or facilities located on the Assets (including maintenance, repair and
abandonment operations), and whether or not such losses, claims, demands, suits,
causes of action, damages and sanctions are occasioned by, are incident to or
are the result of the negligence or fault in whole or in part of Seller, its
agents, representatives or employees or any other person or entity, or are
occasioned by, are incident to or emanate from the unseaworthiness of vessels or
alleged defects in lease equipment, facilities or pipelines; except however this
indemnity shall not apply to losses sustained or liabilities arising out of
Seller's gross negligence or willful misconduct.
For a period of six (6) months after the Effective Date, Seller shall fully
defend, compensate, protect, indemnify and hold Buyer, its officers, directors,
employees and agents, harmless from and against any and all losses, claims,
demands, damages, suits, expenses, causes of action, and any sanctions of every
kind and character (including reasonable attorneys' fees, court costs, and costs
of investigation) which may be made or asserted by Seller, Seller's assignors,
Seller's employees, agents, contractors, and subcontractors and employees
thereof, or by any third parties (including governmental agencies) on account of
personal injury, death or property damage (including claims for taxes,
environmental damage, and regulatory compliance, any fines or penalties assessed
on account of such damage or regulatory non-compliance, and causes of action
alleging statutory liability) caused by, arising out of, or in any way
incidental to operations conducted on the Assets before the Effective Date, and
whether or not such losses, claims, demands, suits, causes of action, damages
and sanctions are occasioned by, are incident to or are the result of the
negligence or fault in whole or in part of Buyer, its agents, representatives or
employees or any other person or entity; except however this indemnity shall not
apply to losses sustained or liabilities arising out of Buyer's gross negligence
or willful misconduct.
Production activities can result in the concentration of certain levels of
naturally occurring radioactive material ("NORM") on production equipment and
pipe so that, when brought to the surface, a health hazard may exist in
connection with the removal, handling or disposal of such NORM-contaminated
equipment or pipe, if proper environmental, regulatory and industrial hygiene
procedures are not observed. The presence of NORM in or on facilities or
equipment on the Assets on and after the Effective Date shall be the sole
responsibility of Buyer, and Buyer shall indemnify and hold Seller harmless from
and against any and all claims, losses, damages or liabilities arising from the
presence of or in connection with the purchase, use, resale removal, handling or
disposal of NORM-contaminated equipment or pipe sold under this agreement. Such
indemnity shall apply without exception, and regardless of whether the claims,
losses, damages or liabilities arise in whole or in part from the negligence
(whether or not concurrent) of Seller or any other person or entity.
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10. Representations and Warranties.
10.1 Seller's Representations and Warranties. Seller represents and
warrants to Buyer as of the date of this Agreement and as of the Closing Date as
follows:
(a) Organization, Standing and Power. Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of the state of New York and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Seller is duly qualified to carry on its business and in
good standing in the State of Alaska.
(b) Authority and Enforceability. The execution and delivery by
Seller of this Agreement, and the consummation of the transactions contemplated
hereby, have been duly and validly authorized by all necessary corporate action,
on the part of Seller. This Agreement is, and every instrument, document, or
agreement to be executed hereunder to consummate the transactions contemplated
hereby will be, a valid and legally binding obligation of Seller, enforceable
against Seller in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability and to general equity principles. Neither the execution and
delivery by Seller of this Agreement nor the consummation of the transactions
contemplated hereby, nor compliance by Seller with any of the provisions hereof,
will:
(i) conflict with or result in a breach of any provision of Seller's
constituent documents;
(ii) except with respect to those matters discussed in Article 7 above,
result in a material default (with due notice or lapse of time or both) or give
rise to any right of termination, cancellation or acceleration under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, license
or agreement to which Seller is a party or by which Seller or any of Seller's
properties or assets may be bound or create or impose any lien or other
encumbrance upon any of Seller's properties or assets; or
(iii) violate any order, writ, injunction, judgment, decree, statute, rule
or regulation applicable to any Seller, or any Seller's properties or assets,
assuming receipt of all routine governmental consents normally acquired after
the consummation of transactions such as transactions of the nature contemplated
by this Agreement.
(c) Claims Affecting the Assets. To Seller's Knowledge, there is
no suit, action, claim, notice of violation, investigation or inquiry either
pending or threatened, by any person or entity or by any administrative agency
or governmental body and no legal, administrative or arbitration proceeding
pending or threatened against or affecting the Assets.
(d) Claims Affecting the Sale. To Seller's Knowledge, there is no
suit, action, claim, notice of violation, investigation or inquiry either
pending or threatened, by any person or entity or by any administrative agency
or governmental body and no legal, administrative or arbitration proceeding
pending or threatened against Seller or any Affiliate of Seller which has
affected or could affect Seller's ability to execute and deliver this Agreement
or to consummate the transactions contemplated by this Agreement. In this
Agreement, "Affiliate" means any person or entity which controls, is controlled
by or is under common control with, the subject person or entity with the terms
"control," "controlled by" and "under common control"
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meaning the possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of securities
or any partnership or other ownership interest, by contract or otherwise) of a
person. For the purposes of the preceding sentence, control shall be deemed to
exist when a person possesses, directly or indirectly, through one or more
intermediaries (i) in the case of a corporation, more than 50% of the
outstanding voting securities thereof; (ii) in the case of a limited liability
company, partnership, limited partnership or venture, the right to more than 50%
of the distributions therefrom (including liquidating distributions); or (iii)
in the case of any other person, more than 50% of the economic or beneficial
interest therein.
(e) No Demands. Seller has received no notice of any claimed
defaults, offsets or cancellations relating to the Assets, and Seller has no
Knowledge of the existence of any default existing with respect to any of the
Assets or Related Agreements
(f) Taxes.
(i) There are no tax liens upon any of the Assets.
(ii) Seller has not entered into any material agreement or arrangement with
any taxing authority with respect to the Assets that requires Buyer to take any
action or to refrain from taking any action with respect to the Assets after the
Closing Date.
(g) Oil and Gas Leases. To the Knowledge of Seller:
(i) The oil and gas leases included in the Assets have been maintained
according to their terms, in compliance with the agreements to which the oil and
gas leases are subject; and
(ii) The oil and gas leases included in the Assets are presently in full
force and effect.
(h) Non-Foreign Representation. Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code") and the Treasury Regulations thereunder.
(i) Commitments for Expenditures.
(i) There are no outstanding authorizations for expenditure (AFEs) which
Seller has received from a third party operator or has delivered to third
parties, but in either case have not been responded to prior to the date of this
Agreement; and
(ii) Seller has not abandoned any xxxxx (or removed any material items of
equipment, except those replaced by items of materially equal suitability)
included in the Assets since the Effective Date.
(j) Production Sales Contracts. There exist no agreements or
arrangements for the sale of production from the oil and gas leases, lands, or
xxxxx (including calls on, or other rights to purchase, production, whether or
not the same are currently being exercised) other than any agreements or
arrangements which are cancelable on 90 days notice or less without penalty or
detriment; and Seller is not, and to Seller' Knowledge, no other party is in
breach of any such agreement or arrangement.
(k) Compliance with Laws.
(i) To the Knowledge of Seller, the ownership and operation of the Assets
has been in
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conformity, in all material respects, with all applicable laws, rules,
regulations, guidelines and orders of all governmental agencies having
jurisdiction over the Assets, including the timely plugging and abandonment of
xxxxx;
(ii) To the Knowledge of Seller, the Assets are not in violation of (or
subject to) any existing, pending or, threatened, judicial, administrative or
arbitral judgment, proceeding or any non-routine investigation or inquiry by any
governmental authority.
(l) Related Agreements. The Assets are subject to the provisions
of various agreements identified on Exhibit "C" hereto (the "Related
Agreements"). If the transactions contemplated hereby are consummated in
accordance with the terms and provisions hereof, Buyer shall perform all the
obligations attributable to the Assets under the Related Agreements to the
extent such obligations are attributable to any period of time after the date of
Closing.
(m) Governmental Permits. Seller has all governmental licenses,
filings and permits (including, without limitation, permits, licenses, approval
registrations, notifications, exemptions and any other authorizations pursuant
to Applicable Environmental Laws) necessary or appropriate to own and operate
the Assets as presently being owned and operated, and such licenses, filings and
permits are in full force and effect, and Seller has not received written notice
of any violations in respect of any such licenses or permits, in any case,
except where such fact could not be reasonably expected to result in a material
adverse effect on Buyer's ability to own and use the Assets.
(n) State of Repair. To the Seller's Knowledge, the Assets have
been maintained in a state of repair so as to be reasonably adequate for normal
operations.
(o) No Oral Contracts. To the Knowledge of Seller, Seller has not
entered into any oral contract with respect to the Assets.
(p) Tax Partnership. Properties included in the Cosmopolitan Unit
are held in an arrangement treated as a tax partnership under terms of the Unit
Operating Agreement. No other oil and gas lease, land, xxxxx, or other Asset is
held in an entity or arrangement treated as a tax partnership for tax purposes.
The Cosmopolitan tax partnership has made an election under Section 754 of the
Code, which election has not been revoked to Seller's Knowledge.
As used throughout this Section 10.1, "Knowledge", with respect to Seller, shall
refer to the actual knowledge of Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Arlington,
Xxxxxxx X. Xxxxxxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxxx, and Xxx Xxxxx.
10.2 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller as of the date of this Agreement and of the Closing Date
follows:
(a) Organization, Standing and Power. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. At Closing,
Buyer will be duly qualified to carry on its business and in good standing in
the State of Alaska.
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(b) Authority and Enforceability. The execution and delivery by
Buyer of this Agreement, and the consummation of the transactions contemplated
hereby, have been duly and validly authorized by all necessary corporate action
on the part of Buyer. This Agreement is, and every instrument, document, or
agreement to be executed hereunder to consummate the transactions contemplated
hereby will constitute the valid and legally binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability and to general equity principles. Neither the execution
and delivery by Buyer of this Agreement nor the consummation of the transactions
contemplated hereby, nor compliance by Buyer with any of the provisions hereof,
will:
(i) conflict with or result in a breach of any provision of its
certificate of formation or bylaws;
(ii) result in a material default (with due notice or lapse of time or
both) or give rise to any right of termination, cancellation or acceleration
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license or agreement to which Buyer is a party or by which it or any
of its properties or assets may be bound; or
(iii) violate any order, writ, injunction, judgment, decree, statute,
rule or regulation applicable to Buyer, or any of its properties or assets,
assuming receipt of all routine governmental consents normally acquired after
the consummation of transactions such as transactions of the nature contemplated
by this Agreement.
(c) Independent Evaluation; Permitted Investment. Buyer is
knowledgeable and experienced in the evaluation, acquisition and operation of
oil and gas properties. Prior to the execution of this Agreement, Buyer has been
afforded the opportunity to examine the records at Seller's offices in Denver
with respect to the Assets, including the opportunity to ask questions of the
Seller. Except as set forth in this Agreement, Buyer acknowledges that Seller
has made no representations or warranties as to the accuracy or completeness of
such information, and, in entering into and performing this Agreement, Buyer has
relied and will rely solely upon its independent investigation of, and upon its
own knowledge and experience and that of its advisors' with respect to, the
Assets and their value.
(d) Suits Affecting the Sale. There is no suit, action, claim,
notice of violation, investigation or inquiry either pending or to Buyer's
knowledge, threatened, by any person or entity or by any administrative agency
or governmental body and no legal, administrative or arbitration proceeding
pending or, to Buyer's knowledge, threatened against Buyer or any Affiliate of
Buyer which has affected or could materially affect Buyer's ability to
consummate the transactions contemplated by this Agreement
(e) Eligibility. The Buyer is (or will be as of Closing)
qualified under all applicable laws and regulations to own the Assets,
including, without limitation, the oil and gas leases.
(f) Financing; Authorized Capital. Buyer will have the financial
ability as is necessary to fulfill the obligations of this Agreement (as
evidenced by financing commitment letters from an institution satisfactory to
Seller delivered to Seller upon execution of this Agreement), at Closing will
have the necessary immediately available funds to fulfill said
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obligations, and Closing of the transaction is not contingent upon obtaining
financing.
11. Information. Seller shall make available to Buyer at Seller's office
for such inspection and copying as Buyer deems pertinent certain records and
information in Seller's possession which pertain to the Assets. Such books and
records include, but are not limited to, engineering, geological, and production
data related to the Assets, and all ownership records and title opinions.
To the best of its knowledge, Seller has furnished accurate information;
however, Seller does not in any way represent or warrant that such information
is complete, accurate or correct. Any reliance on information furnished herewith
shall be at Buyer's sole risk and expense.
12. Prepaid Expenses. Ad valorem and similar taxes, paid utilities charges,
prepaid rentals and ail other pre-paids shall be prorated between Buyer and
Seller, as of the Effective Date.
13. Costs Borne by Buyer. Except as otherwise provided herein, any and all
costs associated with the assignment of the Assets, as provided for in the
respective leases, or otherwise, shall be borne solely by Buyer including, but
not limited to plugging and abandoning all xxxxx and pits whether or not the
obligations therefore arose prior to the Effective Date. Buyer shall be solely
responsible for all filing and recording of documents related to the property
and for all fees in connection therewith. Buyer shall furnish Seller with a
certified copy of the recorded and approved assignments.
14. Notice of Litigation or Changes in Fact. To Seller's knowledge, there
are no existing claims, lawsuits, or investigations pending or threatened
affecting the Assets as of the Closing Date.
15. Miscellaneous.
(a) Neither this Agreement nor any of the rights or obligations
hereunder nor any of the Assets may be assigned by Buyer without the prior
written consent of Seller.
(b) All proprietary information and data furnished to Buyer hereunder
shall be kept confidential by Buyer. Furthermore, Buyer shall not, without
first notifying Seller, issue any press releases or make public
announcements regarding the provisions of this Agreement. This restriction
shall not apply to the filing of reports required by any regulatory agency
in the normal course of business.
(c) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
COLORADO AND SHALL BE SUBJECT TO ALL APPLICABLE STATE AND FEDERAL LAWS,
RULES AND REGULATIONS OF PUBLIC BODIES HAVING JURISDICTION OVER THE ASSETS.
IN THE EVENT ANY PROVISION OF THIS AGREEMENT IS, OR THE OPERATIONS
CONTEMPLATED HEREBY ARE FOUND TO BE, INCONSISTENT WITH OR CONTRARY TO ANY
SUCH LAWS, RULES, OR
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REGULATIONS, THE LATTER SHALL BE DEEMED TO CONTROL. THEREAFTER, THIS
AGREEMENT SHALL BE REGARDED AS MODIFIED ACCORDINGLY, AND, AS SO MODIFIED,
SHALL CONTINUE IN FULL FORCE AND EFFECT.
(d) Subject to the provisions of this Agreement, this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
(e) This Agreement constitutes the entire agreement between the
parties and supersedes any and all other written or oral agreements or
understandings between the parties concerning the subject matter hereof. No
modification or amendment of the terms and provisions of this Agreement
shall be effective unless in writing and signed by the party against whom
enforcement is sought.
(f) The headings of sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part hereof.
(g) Buyer represents and warrants that: (i) it is an experienced and
knowledgeable investor in the oil and gas business, (ii) prior to entering
into this Agreement, Buyer was advised by and has relied solely on its own
legal, tax, and other professional counsel concerning this Agreement, the
Assets and the value thereof, and (iii) that it is purchasing the Assets
for its own account or that it will sell or subdivide any interest in the
Assets only in a manner consistent with the applicable registration and
disclosure requirements of all applicable securities laws.
(h) Buyer shall comply with all applicable laws, ordinances, rules and
regulations and shall promptly obtain and maintain all permits required by
public authorities in connection with the property purchased.
(i) It is expressly agreed to that in no event shall Buyer contact
Seller's co-owners in the Assets, regarding this Agreement, prior to the
closing without the express consent of Seller.
(j) The parties agree to execute such additional instruments,
agreements, or documents as may be necessary to effectuate the intentions
of this Agreement.
(k) This Agreement may be executed in multiple counterparts each of
which will constitute an original and all of which, taken together, shall
be one Agreement.
(l) Buyer will use its reasonable good efforts and good faith to take
all actions and to do all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this
Agreement.
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(m) Except as otherwise expressly provided in Article 6 above, BUYER
ACKNOWLEDGES THAT SELLER HAS NOT MADE, AND SELLER HEREBY EXPRESSLY
DISCLAIMS AND NEGATES, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
RELATING TO THE CONDITION OF ANY IMMOVABLE PROPERTY, MOVABLE PROPERTY,
EQUIPMENT, INVENTORY, MACHINERY, FIXTURES AND PERSONAL PROPERTY
CONSTITUTING PART OF THE ASSETS (INCLUDING, WITHOUT LIMITATION, (i) ANY
IMPLIED OR EXPRESSED WARRANTY OF MERCHANTABILITY, (ii) ANY IMPLIED OR
EXPRESSED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iii) ANY IMPLIED
OR EXPRESSED WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (iv)
ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF
CONSIDERATION OR RETURN OF THE PURCHASE PRICE, AND (v) ANY IMPLIED OR
EXPRESSED WARRANTY REGARDING ENVIRONMENTAL LAWS, THE RELEASE OF MATERIALS
INTO THE ENVIRONMENT OR PROTECTION OF THE ENVIRONMENT OR HEALTH). IT BEING
THE EXPRESS INTENTION OF BUYER AND SELLER THAT (EXCEPT TO THE EXTENT
EXPRESSLY PROVIDED IN ARTICLE 6) THE IMMOVABLE PROPERTY, MOVABLE PROPERTY,
EQUIPMENT, INVENTORY, MACHINERY, FIXTURES AND PERSONAL PROPERTY SHALL BE
CONVEYED TO BUYER AS IS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR
AND BUYER REPRESENTS TO SELLER THAT BUYER HAS MADE OR CAUSED TO BE MADE
SUCH INSPECTIONS WITH RESPECT TO THE IMMOVABLE PROPERTY, MOVABLE PROPERTY,
EQUIPMENT, INVENTORY, MACHINERY, FIXTURES AND PERSONAL PROPERTY AS BUYER
DEEMS APPROPRIATE, AND BUYER WILL ACCEPT THE IMMOVABLE PROPERTY, MOVABLE
PROPERTY, EQUIPMENT, INVENTORY, MACHINERY, FIXTURES AND PERSONAL PROPERTY
AS IS, IN THEIR PRESENT CONDITION AND STATE OF REPAIR.
EXECUTED as of the date first set forth above.
FOREST ALASKA OPERATING LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Business
Development
PIONEER NATURAL RESOURCES ALASKA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: President
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