PURCHASE AND SALE AGREEMENT BY AND BETWEEN CALLON PETROLEUM OPERATING COMPANY AND CIECO ENERGY (US) LIMITED FOR A FIFTY PERCENT INTEREST IN FEDERAL LEASES COVERING GARDEN BANKS BLOCKS 738, 782, 785, 826 AND 827 AS TO CERTAIN DEPTHS DATED FEBRUARY 11, 2008
Exhibit
1.1
PURCHASE
AND SALE
AGREEMENT
BY
AND BETWEEN
XXXXXX
PETROLEUM OPERATING COMPANY
AND
CIECO
ENERGY (US) LIMITED
FOR
A FIFTY PERCENT INTEREST IN FEDERAL LEASES
COVERING
GARDEN BANKS BLOCKS 738, 782, 785, 826 AND 827
AS
TO CERTAIN DEPTHS
DATED
FEBRUARY 11, 2008
INDEX
ARTICLE
1. DEFINITIONS
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1
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1.1
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Definitions.
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1
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ARTICLE
2. SALE OF ACQUIRED PROPERTIES
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9
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2.1
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Sale
and Purchase.
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9
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2.2
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Purchase
Price.
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9
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ARTICLE
3. DEPTH PROVISIONS AND TITLE REVIEW
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10
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3.1
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Depth
Provisions.
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10
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3.2
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Review
of Title Records.
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11
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ARTICLE
4. CONDITION OF ACQUIRED PROPERTIES
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11
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4.1
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Waiver.
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11
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ARTICLE
5. ACCOUNTING
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11
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5.1
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Expenses
and Capital Expenditures
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11
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5.2
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Taxes.
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12
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5.3
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Settlement
Expenses.
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12
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ARTICLE
6. LOSS, CASUALTY AND CONDEMNATION
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12
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6.1
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Notice
of Loss.
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12
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6.2
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Casualty
Loss.
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12
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ARTICLE
7. ALLOCATION OF RESPONSIBILITIES AND INDEMNITIES
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13
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7.1
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Opportunity
for Review.
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13
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7.2
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Seller’s
Non-Environmental Indemnity Obligation.
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13
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7.3
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Seller’s
Environmental Indemnity Obligation.
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13
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7.4
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Limitations
on Seller’s Environmental Indemnities.
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14
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7.5
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Notice
of Claims.
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14
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7.6
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Defense
of Claims.
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14
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7.7
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Waiver
of Certain Damages.
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15
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ARTICLE
8. DISCLAIMERS
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15
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8.1
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Disclaimers.
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15
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8.2
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Disclaimer
of Statements and Information.
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16
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ARTICLE
9. SELLER’S REPRESENTATIONS AND WARRANTIES
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16
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9.1
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Seller’s
Representations and Warranties.
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16
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ARTICLE
10. BUYER’S REPRESENTATIONS AND WARRANTIES
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18
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10.1
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Buyer’s
Representations and Warranties.
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18
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ARTICLE
11. ADDITIONAL COVENANTS
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20
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11.1
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Buyer’s
Assumption of Obligations.
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20
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11.2
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Asbestos
and NORM.
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20
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i
11.3
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Plugging
and Abandonment.
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20
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11.4
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Sales
Tax.
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20
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11.5
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Third
Party Technology.
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21
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11.6
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BP
Acquisition Agreement.
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21
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11.7
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Additional
Contracts.
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21
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11.8
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ORRI.
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22
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11.9
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Exclusivity.
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22
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11.10
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Notification
of Breaches Until the Closing.
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22
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ARTICLE
12. CONDITIONS PRECEDENT TO CLOSING
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23
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12.1
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Conditions
Precedent to Seller’s Obligation to Close.
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23
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12.2
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Conditions
Precedent to Buyer’s Obligation to Close.
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24
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12.3
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Conditions
Precedent to Obligation of Each Party to Close.
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25
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ARTICLE
13. THE CLOSING
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25
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13.1
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Closing.
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25
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13.2
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Seller’s
Obligations at Closing.
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26
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13.3
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Buyer’s
Obligations at Closing.
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26
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ARTICLE
14. TERMINATION
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27
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14.1
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Grounds
for Termination.
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27
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14.2
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Effect
of Termination.
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28
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14.3
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Dispute
over Right to Terminate.
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28
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14.4
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Confidentiality.
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28
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ARTICLE
15. ARBITRATION
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28
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15.1
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Arbitration.
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28
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ARTICLE
16. MISCELLANEOUS
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30
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16.1
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Notices.
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30
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16.2
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Costs
and Post-Closing Consents.
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30
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16.3
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Brokers,
Agents and Finders.
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31
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16.4
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Records.
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31
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16.5
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Further
Assurances.
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31
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16.6
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Survival
of Certain Obligations
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32
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16.7
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Amendments
and Severability.
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32
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16.8
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Successors
and Assigns.
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32
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16.9
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Headings.
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33
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16.10
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Governing
Law.
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33
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16.11
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No
Partnership Created.
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33
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16.12
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Public
Announcements.
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33
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16.13
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No
Third Party Beneficiaries.
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33
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16.14
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Waiver
of Consumer Rights.
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33
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16.15
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Redhibition
Waiver.
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34
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16.16
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UTPCPL
Waiver.
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34
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16.17
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Not
to be Construed Against Drafter.
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34
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16.18
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Indemnities
and Conspicuousness of Provisions.
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35
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ii
16.19
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Recordation.
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35
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16.20
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Execution
in Counterparts.
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35
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16.21
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Entire
Agreement.
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35
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16.22
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Strategic
Relationship
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35
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iii
EXHIBITS
EXHIBIT
“A” -
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ACQUIRED
PROPERTIES
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EXHIBIT
“B” -
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EXCLUDED
PROPERTIES
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EXHIBIT
“C” -
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FORM
OF GUARANTY
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EXHIBIT
“D” -
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ASSIGNMENT
AND XXXX OF SALE (Parish Form)
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EXHIBIT
“E” -
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CERTIFICATE
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EXHIBIT
“F” -
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NON-FOREIGN
CERTIFICATE
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EXHIBIT
“G” -
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FORM
OF ASSIGNMENT OF OPERATING RIGHTS
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EXHIBIT
“H” -
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OPERATING
AGREEMENT
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EXHIBIT
“I” -
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CREDIT
AGREEMENT
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iv
THIS
PURCHASE AND SALE AGREEMENT (this “Agreement”) dated February 11,
2008, is between Xxxxxx Petroleum Operating Company, a Delaware
corporation, with an office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx
00000 (“Seller”) and
CIECO Energy (US) Limited, a Delaware corporation, with an office at 0000 Xxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (“Buyer”) (with
Seller and Buyer being individually, a “Party” and collectively, the
“Parties”.)
WHEREAS, Seller desires to
sell and deliver to Buyer, and Buyer desires to purchase and accept an undivided
fifty (50%) percent interest in certain oil and gas properties and related
assets; and
WHEREAS, the Parties have
reached agreement regarding the sale and purchase.
NOW, THEREFORE, for and in
consideration of the mutual covenants herein, the Parties agree to all the terms
and conditions in this Agreement:
ARTICLE
1. DEFINITIONS
1.1.
Definitions.
Unless
provided otherwise in this Agreement, each capitalized term in this Agreement
has the meaning given to it in this Article. All defined terms
include the singular and the plural. All references to Articles refer
to Articles in this Agreement, and all references to Exhibits refer to the
Exhibits attached to and made a part of this Agreement. When a term
is defined as one part of speech (e.g., noun), any other part of speech (e.g.,
verb) with respect to the term has a comparable meaning.
1.1.1.
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“AAA”
has the meaning given it in Article
15.1.
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1.1.2.
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“Acquired
Depths” means all depths from the surface to the stratigraphic
equivalent of the top of the Miocene formation. Until a better definition
of such stratigraphic equivalent is obtained pursuant to Article 3.1, the
top of the Miocene Formation shall be deemed to be the respective depths
under the Leases as set out in Article
3.1.
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1.1.3.
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“Acquired
Properties” means the operating rights interests described in
Exhibit “A”, together with an undivided fifty percent (50%) interest in
the Units, Contracts, and Miscellaneous
Property.
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1.1.4.
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“Additional
Consideration” has the meaning given such term in Article
2.2.
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1.1.5.
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“Adjusted
Cash Purchase Price” has the meaning given such term in Article
2.2.
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1.1.6.
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“Affiliate”
means any entity that, directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control
with the entity specified. For the purpose of this definition,
the term “control” means ownership of fifty (50%) or more of voting rights
(stock or otherwise) or ownership
interest.
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1.1.7.
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“Agreement”
has the meaning given such term in the introductory
paragraph.
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1.1.8.
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“Allocated
to the Entrada Field” means all BOE produced and exported from the
Entrada Field. In the event that agreement is reached to
develop the Entrada Field sands within the Little Gem Field, this
definition shall include any BOE produced and exported from the Entrada
Field sands allocable to the Little Gem Field, excluding however, (i) BOE
allocable to any working interest of ConocoPhillips Company and Devon
Energy Production Company, L.P., their successors and assigns, in any such
production and/or (ii) BOE allocable to any overriding royalty interest
retained by or assigned to either or both ConocoPhillips Company and Devon
Energy Production Company, their successors and assigns, in any such
production, in either (i) or (ii) arising from a production sharing or
agreement of similar effect entered into by the parties to the Little Gem
Agreement, their successors and
assigns.
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1.1.9.
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“Arbitrable
Dispute” means, except as set forth below, any and all disputes,
claims, counterclaims, demands, causes of action, controversies and other
matters in question arising out of or relating to this Agreement or
alleged breach hereof, or relating to matters that are the subject of this
Agreement or the relationship between the Parties under this Agreement,
regardless of whether (a) extra-contractual in nature, (b) sounding in
contract, tort or otherwise, (c) provided for by Law or otherwise, or (d)
would result in damages or any other relief, whether at law, in equity or
otherwise; provided that “Arbitrable Dispute” does
not include disputes that by the terms of this Agreement relate
to breach of confidentiality
obligations.
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1.1.10.
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“Assignment
and Xxxx of Sale” means a document in the form of Exhibit
“D”.
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1.1.11.
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“Assignment
of Operating Rights” means a document in the form of Exhibit
“G”.
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1.1.12.
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“BOE”
means oil equivalent barrels; as to oil and liquid hydrocarbons, one BOE
shall be forty two (42) gallons of liquid, and as to gas, one BOE shall be
five and eight tenths (5.8) thousand standard cubic
feet.
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1.1.13.
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“BOE
Threshold” means thirty million
BOE.
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1.1.14.
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“BP”
means BP Exploration & Production,
Inc.
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1.1.15.
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“BP
Acquisition Agreement” means that certain Purchase and Sale
Agreement between BP and Xxxxxx Petroleum Operating Company dated March 8,
2007, pursuant to which Seller acquired a portion of the
Properties.
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1.1.16.
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“Business
Day” means a Day, other than a Saturday or a Sunday, when federally
chartered banks in the State of Texas are generally open for business
during the time period between 8:00 a.m., Central Time and 4:00 p.m.,
Central Time.
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1.1.17.
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“Buyer”
has the meaning given such term in the introductory
paragraph.
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1.1.18.
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“Buyer
Group” means each and all of: (a) Buyer and its
officers, directors, agents, consultants and employees, and (b) Buyer’s
Affiliates and their officers, directors, agents, consultants and
employees.
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1.1.19.
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“Cash Purchase
Price” has the meaning set forth in Article
2.2.
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1.1.20.
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“Casualty
Loss” means physical damage to the Acquired Properties that: (a)
occurs between the Effective Accounting Date and Closing; (b) is not the
result of normal wear and tear, mechanical failure or gradual structural
deterioration of materials, equipment and infrastructure, downhole failure
(including: (i) failures arising or occurring during drilling or
completing operations; (ii) junked or lost holes; or (iii) sidetracking or
deviating a well) or reservoir changes; and (c) exceeds one million United
States dollars (US $1,000,000).
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1.1.21.
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“Certificate”
means a document in the form of Exhibit
“E”.
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1.1.22.
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“Claim
Notice” means a notice of Claim provided in accordance with Article
7.5.
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1.1.23.
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“Claimant”
has the meaning set forth in Article
15.1.
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1.1.24.
|
“Claims”
means any and all claims of any kind or character, including demands,
suits, causes of action, rights of action, regulatory actions, losses,
risk of losses, impairment of rights, damages, liabilities,
subordinations, fines, or penalties and all expenses and costs (including
reasonable attorneys’ fees and costs of litigation) associated therewith,
whether known or unknown, direct or indirect, and whether an Environmental
Claim or a Non-Environmental Claim, that are brought by, on behalf of or
owed to a third party. The term “third party” (whether or
not capitalized) means any person or entity, governmental or otherwise,
other than Seller and Buyer; provided that a Claim against a Party by an
officer, director or employee of that Party, an Affiliate of that Party,
or any officer, director or employee of such an Affiliate shall not be a
Claim brought by or owed to a “third
party”.
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1.1.25.
|
“Close”
or “Closing”
means consummation of transfer of title to the Acquired Properties from
Seller to Buyer, including execution and delivery of all documents and
other consideration as provided in this
Agreement.
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1.1.26.
|
“Closing
Date” means the later of (i) February 29, 2008 or (ii) ten (10)
Days after satisfaction or waiver of the conditions precedent in Articles
12.1.3, 12.2.3, 12.2.4 and 12.2.5 or such other date mutually agreed by
the Parties.
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1.1.27.
|
“Closing
Statement” refers to the document described in Article
13.1.
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1.1.28.
|
“Confidentiality
Agreement” means the Confidentiality Agreement dated October 10,
2007, between Seller and Buyer relating to the Acquired
Properties.
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1.1.29.
|
“Contracts”
has the meaning given such term in the definition of
Properties.
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1.1.30.
|
“Credit
Agreement” means a credit agreement between Buyer, or its
designee(s), as lender, and Seller, or its designee, as borrower, to be
discussed in good faith and agreed upon prior to Closing generally based
on the form attached as Exhibit
“I”.
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1.1.31.
|
“Day”
means a calendar day consisting of twenty-four (24) hours from midnight to
midnight.
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1.1.32.
|
“Defensible
Title” means such title, free and clear of any lien, security
interest, pledge, charge, privilege, encumbrance, claim or title defect,
except for any Permitted Encumbrance,
that
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(a)
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entitles
Seller to receive, as of the Effective Date, not less than the Net Revenue
Interests of all oil, gas and associated liquid and gaseous hydrocarbon
substances produced, saved and marketed from the xxxxx or units set forth
in the table on Exhibit “A”; and
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(b)
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obligates
Seller to bear, as of the Effective Date, not greater than the Working
Interest share of costs and expenses associated with ownership, operation,
maintenance and repair of the xxxxx or units set forth on Exhibit
“A”.
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1.1.33.
|
“Effective
Accounting Date” means January 1,
2008.
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1.1.34.
|
“Effective
Date” as to the Acquired Properties means the Closing
Date.
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1.1.35.
|
“Entrada
Field” means the stratigraphic equivalents of the following sands
(references to “xx xxxxx” are to the same depth sands as presented to
Buyer in Seller’s offering materials, to which reference is here made) to
the extent such sands underlie Garden Banks Blocks 782 and 738 (but
excluding the Little Gem Field):
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(i)
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4300
xx xxxxx, 4700 xx xxxxx, 4800 xx xxxxx, 4850 xx xxxxx, 5350 xx xxxxx, 5400
xx xxxxx and 5,800 xx xxxxx, which sands were found in temporarily
abandoned xxxxx #1 and #2 and sidetracks drilled on Garden Banks Block
782; and
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(ii)
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3,500
xx xxxxx, 3,700xx xxxxx and 4000ms sands not found in the xxxxx referenced
in (i) but which are identified on seismic reflectors shown by seismic
information furnished by Seller to
Buyer.
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1.1.36.
|
“Environmental
Claims” means all Claims based on breach of Environmental
Laws.
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1.1.37.
|
“Environmental
Condition” means an individual adverse environmental condition
associated with the Acquired Properties that is not in compliance with the
then existing Environmental Laws.
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1.1.38.
|
“Environmental
Laws” means any and all Laws that relate to: (a) prevention of
pollution or environmental damage; (b) removal or remediation of pollution
or environmental damage; or (c) protection of the
environment.
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1.1.39.
|
“Excluded
Properties” means the properties set forth in Exhibit “B” or
otherwise excepted, reserved or retained by Seller under the terms of this
Agreement.
|
1.1.40.
|
“Guaranty”
means a guaranty in substantially the same form as that of Exhibit
“C”.
|
1.1.41.
|
“Including”,
whether or not capitalized, means including without
limitation.
|
1.1.42.
|
“Indemnified
Party” has the meaning set forth in Article
7.5.
|
1.1.43.
|
“Indemnifying
Party” has the meaning set forth in Article
7.5.
|
1.1.44.
|
“Laws”
means any and all applicable laws, statutes, codes, constitutions,
ordinances, permits, licenses, authorizations, agreements, decrees,
orders, judgments, rules, regulations or practices that are
promulgated, issued or enacted by a governmental entity or authority
having appropriate jurisdiction of the Properties or the
Parties.
|
1.1.45.
|
“Leases”
means the five federal offshore oil and gas leases identified and
described in Exhibit “A”.
|
1.1.46.
|
“Little
Gem Agreement” means that certain letter agreement dated August 31,
2007, from ConocoPhillips Company and accepted by Seller and Devon Energy
Production Company, L.P. relating to the Little Gem Prospect (as
referenced in such letter agreement), a copy of which is in the possession
of Seller and Buyer.
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1.1.47.
|
“Little
Gem Field” means the Contract Area defined in the Little Gem
Agreement.
|
1.1.48.
|
“Miscellaneous
Property” has the meaning given to such term in the definition of
Properties.
|
1.1.49.
|
“MMS”
means the Minerals Management Service of the United States Department of
the Interior or any successor agency
thereto.
|
1.1.50.
|
“Net
Revenue Interests” means the “Net Revenue Interests” set forth in
Exhibit “A”. A Net Revenue Interest, with respect to any Lease, means the
interest in and to all production of oil, gas, and other hydrocarbons
produced, saved, and sold from or allocated to such Lease, after giving
effect to all valid royalties, overriding royalties, production payments,
carried interests, net profits interests, reversionary interests, and
other burdens upon, measured by, or payable out of production
therefrom.
|
1.1.51.
|
“Non-Environmental
Claims” means all Claims, except for Environmental
Claims.
|
1.1.52.
|
“Non-Foreign
Certificate” means a document in the form of Exhibit
“F”.
|
1.1.53.
|
“Operating
Agreement” means that certain Offshore Operating Agreement between
Seller, as operator, and Buyer, as non-operator, in substantially the same
form and substance as Exhibit “H”.
|
1.1.54.
|
“ORRI”
means, as to any Lease, any overriding royalties, production payments, net
profits interests or other burdens on production other than the lessor’s
royalty in existence as of the Closing
Date.
|
1.1.55.
|
“Parties”
has the meaning given it in the introductory paragraph of this
Agreement.
|
1.1.56.
|
“Party”
has the meaning given it in the introductory paragraph of this
Agreement.
|
1.1.57.
|
“Permitted
Encumbrances” means any and
all:
|
(a) royalties,
overriding royalties, sliding scale royalties, production payments, reversionary
interests, convertible interests, net profits interests and similar burdens
encumbering the Properties to the extent the net cumulative effect of such
burdens does not operate to reduce the Net Revenue Interests, as of the
Effective Date, to less than that set forth in Exhibit “A” or increase the
Working Interests, as of the Effective Date, above that set forth in Exhibit “A”
(provided the remaining interest of Seller after conveying the Acquired
Properties to Buyer shall bear all ORRI);
(b) rights
to consent by, required notices to, and filings with a governmental entity or
authority associated with the conveyance of the Acquired
Properties;
(c) rights
reserved to or vested in a governmental entity having jurisdiction to control or
regulate the Acquired Properties in any manner whatsoever, and all Laws of such
governmental entities or authorities;
(d) easements,
rights-of-way, servitudes, sub-surface leases, equipment, pipelines, utility
lines on, over and through the Acquired Properties;
(e) terms
and conditions of unitizations, communitizations, poolings, affecting the
Acquired Properties and the Contracts;
(f) such
defects or irregularities in the title to the Acquired Properties that do not
materially interfere with the ownership, operation, value or use of the Acquired
Properties affected thereby and that would not be considered material when
applying general standards in the oil and gas industry.
1.1.58.
|
“PHA”
means that certain Deepwater Production Handling and Operating Services
Agreement dated effective April 18, 2007, between ConocoPhillips et al as
facility owner and Seller, as producer, covering handling of production
produced from the Leases.
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1.1.59.
|
“Properties”
means the following:
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|
(a)
|
all
oil and gas leasehold interests that are attributable to the
Acquired Depths under the Leases, but excluding record title to all depths
and operating rights and the production of oil, gas and other hydrocarbon
substances attributable thereto;
|
|
(b)
|
all
unitization, communitization and pooling declarations, orders and
agreements (including all units formed by voluntary agreement and those
formed under the rules, regulations, orders or other official acts of any
governmental entity having jurisdiction) to the extent they relate to the
Acquired Depths under any of the Leases, or the production of oil, gas or
other hydrocarbon substances attributable thereto
(“Units”);
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|
(c)
|
the
product sales contracts, processing contracts, gathering contracts,
transportation contracts, easements, rights-of-way, servitudes, subsurface
leases, farm-in and farm-out contracts, areas of mutual interest,
operating agreements, balancing contracts and other contracts, agreements
and instruments listed on Schedule 9.1.7 (or permitted under Article
9.1.7) to the extent they relate to the Acquired Depths under any of the
Leases, or the production of oil, gas or other hydrocarbon substances
attributable thereto (“Contracts”);
and
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|
(d)
|
all
personal property, improvements, fixtures and other appurtenances, to the
extent situated upon and exclusively used, or situated upon and held
exclusively for use, by Seller in connection with ownership, operation,
maintenance or repair of the Leases as to the Acquired Depths, or
production of oil, gas or other hydrocarbon substances attributable
thereto, including all xxxxx (whether producing, shut-in, injection,
disposal, water supply or plugged and abandoned), gathering and processing
systems, platforms, pipelines, compressors, meters, tanks, equipment,
machinery, tools, permits and licenses related thereto (“Miscellaneous
Property”).
|
1.1.60.
|
“Purchase
Price” has the meaning given such term in Article
2.2.
|
1.1.61.
|
“Real
Properties” means those Properties consisting of interests in oil
and/or gas, as reserves in place, or otherwise classified as
real or immovable property under applicable property Law and shall include
the Leases insofar as the leases cover the Acquired
Depths.
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1.1.62.
|
“Records”
means, except as excluded under the terms of this Agreement, Seller’s
records and files to the extent related to the Acquired Properties;
provided, however, Buyer acknowledges that Seller images and retains
Records in electronic format, and may provide imaged or electronic Records
rather than hard copies, and further provided that “Records” shall not
include: (i) Seller’s general corporate books, records and files, even if
containing references to the Acquired Properties; (ii) books, records and
files which are not transferable or cannot be disclosed under the terms of
any third-party agreement or any Law; (iii) information entitled to legal
privilege, including attorney work product and attorney-client
communications and information relating to litigation and claims retained
by Seller; (iv) Seller’s interpretative data, cores, geological and
geophysical data, reserve data and seismic, (v) personnel information;
(vi) income tax information; (vii) records relating to the sale of the
Acquired Properties, including proposals received from third parties and
records of negotiations with and economic analyses associated therewith;
and (viii) any books, records or files constituting “Excluded
Properties.”
|
1.1.63.
|
“Respondent”
has the meaning set forth in Article
15.1.
|
1.1.64.
|
“Sales
Tax” means any and all transfer, sales, gross receipts,
compensating use, use or similar taxes, and any associated penalties and
interest.
|
1.1.65.
|
“Seller”
has the meaning set forth in the introductory paragraph of this
Agreement.
|
1.1.66.
|
“Seller
Group” means each and all of: (a) Seller and its
officers, directors, agents, consultants and employees; and (b) Seller’s
Affiliates and their officers, directors, agents, consultants and
employees.
|
1.1.67.
|
“Third
Party” has the meaning given to it in the definition of “Claims”
above.
|
1.1.68.
|
“Units”
has the meaning given such term in the definition of
Properties.
|
1.1.69.
|
“Working
Interests” means the “Working Interests” set forth in Exhibit “A”.
A Working Interest, with respect to any Lease, means the interest in and
to such Lease that is burdened with the obligation to bear and pay costs
of operations on or in connection with such Asset, but without regard to
the effect of any valid royalties, overriding royalties, production
payments, carried interests, net profits interests, reversionary
interests, and other burdens upon, measured by, or payable out of
production therefrom.
|
ARTICLE 2. SALE OF ACQUIRED
PROPERTIES
|
2.1.
|
Sale
and Purchase.
|
On the
Closing Date, but effective as of the Effective Date, and upon the terms and
conditions of this Agreement: (a) Seller shall sell, assign and convey the
Acquired Properties to Buyer; and (b) Buyer shall purchase and accept the
Acquired Properties from Seller.
|
2.2.
|
Purchase
Price.
|
Subject
to adjustments in accordance with this Agreement, the cash portion of the
purchase price shall be One Hundred Fifty-Five Million Dollars (US
$155,000,000.00) (“Cash Purchase Price”), payable in full at Closing in
immediately available funds. As additional consideration (“Additional
Consideration”) to Seller, upon Closing (x) Buyer shall assume and
pay when and if due one-half of the contingent $40,000,000.00 payment owing by
Seller to BP pursuant to Article 2.3 of the BP Acquisition Agreement and (y) for
production, if any, measured at the inlet flange of the export pipeline at the
production handling facility described in the PHA which is Allocated to the
Entrada Field during the period from the Closing Date through December 31, 2018,
in excess of the BOE Threshold, Buyer will pay to Seller an additional sum of
$2.50 per BOE. Notwithstanding the foregoing sentence, once the BOE Threshold
has been reached, no payment shall be due or payable for any calendar quarter
thereafter in which the average New York Mercantile Exchange price per barrel of
crude for West Texas Intermediate for such calendar quarter is $20.00 or less.
Once the BOE Threshold has been reached but subject to the preceding sentence,
each calendar quarter thereafter Seller shall submit to Buyer a statement for
BOE so allocated during the quarter qualifying for the payment, along with
sufficient detail to enable Buyer to verify the volumes and amount, if any,
owing, along with Seller’s invoice. Buyer shall pay proper invoices within
thirty days of receipt, subject to the right of Buyer to review, inspect and/or
audit the records of Seller to verify the exported or allocated amount (and to
withhold payment until it has verified the exported or allocated
amount).
The Cash
Purchase Price shall be adjusted as follows:
|
(a)
|
Increased
by fifty percent (50%) of capital expenditures incurred and paid by Seller
on and before the Effective Accounting Date (and fifty percent (50%) of
overhead properly chargeable with respect to such capital expenditures
under the Operating Agreement), such expenditures being part of the gross
capital expenditure estimate of $300.2 million relating to the five
authorities for expenditure attached hereto as Schedule 2.2 (a). Such
reimbursement is estimated to be fifty percent (50%) of $18.8 million, but
prior to payment shall be subject to verification by Buyer of adequate
evidence of procurement and payment which evidence shall be furnished to
Buyer at least fifteen Days prior to Closing (if verification is not
complete prior to Closing, the portions verified shall be paid at Closing
with the balance to be paid after Closing once the verification is
complete);
|
|
(b)
|
Decreased
for any agreed reductions in value pursuant to Article 6.2;
and
|
|
(c)
|
Increased
or decreased, as the case may be, by any other amount mutually agreed to
by the Parties in writing.
|
The Cash
Purchase Price, as so adjusted, shall be the “Adjusted Cash Purchase Price.”
The “Purchase Price” shall be the sum of the Adjusted Cash Purchase Price and
the Additional Consideration.
ARTICLE 3. DEPTH PROVISIONS
AND TITLE REVIEW
|
3.1.
|
Depth
Provisions.
|
As noted
in Exhibit “A”, the Acquired Properties are depth limited from the surface to
the top of the Miocene formation. Future drilling on the Leases may enable the
Parties to better define the depths under the respective Leases that are above
the top of the Miocene formation. Seller has informed Buyer that if such
drilling does result in a better resolution of such depths, that Seller and BP
have agreed to revise the assignment from Seller to BP of operating rights
interests below the top of the Miocene formation in the Leases to more
accurately reflect and describe the top of such formation. Seller agrees that
when and if such revision is executed, the assignment by Seller to Buyer of the
Acquired Properties shall be similarly revised and corrected. The Parties
acknowledge that the MMS does not recognize stratigraphic equivalent assignments
as to depth and that, even if the assignments are conformed, the assignments to
be approved by the MMS will have a specific depth listed which will not
necessarily match the stratigraphic equivalent of the top of the Miocene
formation. Notwithstanding, the Parties agree for themselves and their
successors and assigns, that their respective rights will be determined by the
stratigraphic equivalent of the top of the Miocene formation. For purposes of
Closing, however, for the assignments to be filed with the MMS, the assignments
shall reflect a depth of 27,000 feet for those of the Leases covering Garden
Banks Blocks 738 and 782, and 20,000 feet for the remainder of the
Leases.
|
3.2
|
Review of Title
Records.
|
Prior to
execution and delivery of this Agreement, Seller has made available for Buyer’s
review, Records in Seller’s possession relating to title to the Acquired
Properties. Buyer has informed Seller that it has undertaken a review of all
such Records and is also conducting such independent examinations and
investigations as it deems appropriate with respect to the Acquired
Properties.
ARTICLE 4. CONDITION OF
ACQUIRED PROPERTIES
|
4.1
|
Waiver. If
Closing occurs, except claims under Seller’s indemnity pursuant to
Articles 7.2 and 7.3, Seller’s representations under Article 9 and
Seller’s covenants under Article 11, Buyer shall be deemed to have waived
for all purposes all objections associated with the environmental and
physical condition of the Acquired Properties (including alleged
Environmental Conditions).
|
ARTICLE 5.
ACCOUNTING
|
5.1
|
Expenses and Capital
Expenditures. Except
as expressly provided otherwise in this Agreement: (a) Seller is
responsible for all cost, expense and liabilities attributable to the
Acquired Properties during the period prior to the Effective Accounting
Date; and (b) Buyer is responsible for all cost, expense and liabilities
attributable to the Acquired Properties during the period on and after the
Effective Accounting Date, subject to any non-consent elections under the
Operating Agreement. Any amount payable as part of the Purchase Price
shall be excluded from the coverage of this Article
5.1.
|
|
5.2
|
Taxes. Seller
is responsible for paying all taxes and assessments, including excise
taxes, severance or other production taxes, ad valorem taxes and any other
federal, state or local taxes or assessments attributable to ownership or
operation of the Acquired Properties prior to the Effective Accounting
Date; and all deductions, credits or refunds pertaining to the
aforementioned taxes and assessments, no matter when received, belong to
Seller. Buyer is responsible for paying all taxes and
assessments, including sales taxes, excise taxes, severance or other
production taxes, ad valorem taxes and any other federal, state or local
taxes and assessments attributable to ownership or operation of the
Acquired Properties on and after the Effective Accounting Date (excluding
Seller’s income, franchise, margin or similar taxes); and all deductions,
credits and refunds pertaining to the aforementioned taxes and
assessments, no matter when received, belong to Buyer. Each
Party is responsible for filing any tax returns and handling payment of
any tax due under Law during the period when it holds title to the
Acquired Properties.
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|
5.3
|
Settlement
Expenses. Excluding
amounts covered by the reimbursement contemplated in Article 2.2 and
except as expressly provided otherwise in this Agreement: (a) Seller shall
reimburse Buyer for any and all costs and expenses paid by Buyer
attributable to operation of the Acquired Properties that are incurred
prior to the Effective Accounting Date, and (b) Buyer shall reimburse
Seller for any and all costs and expenses paid by Seller attributable to
operation of the Acquired Properties that are incurred and paid on and
after the Effective Accounting Date. In such regard, the
Parties agree that Seller, as operator under the Operating Agreement shall
prepare and submit to Buyer at least fifteen days prior to Closing a joint
interest billing for charges payable under the Operating Agreement for
periods of time from the Effective Accounting Date through the end of the
month then most recently passed (excluding charges covered by Article
2.2), together with reasonable detail to allow Buyer to verify the
propriety of such charges. If Closing occurs, Buyer shall pay such billing
at Closing, subject to Buyer’s rights to dispute and/or audit such charges
under the terms of the Operating
Agreement.
|
ARTICLE 6. LOSS, CASUALTY
AND CONDEMNATION
|
6.1
|
Notice of
Loss. Seller
shall promptly notify Buyer of all instances of Casualty Loss that occur
and become known to Seller between the Effective Accounting Date and
Closing.
|
|
6.2.
|
Casualty
Loss. If,
after the Effective Accounting Date but prior to Closing, a portion of the
Acquired Properties is damaged or destroyed by a Casualty Loss, Seller
shall promptly notify Buyer. Seller and Buyer shall meet to
attempt to agree on an adjustment to the Cash Purchase Price due to the
Casualty Loss. If the Parties are unable to agree on resolution of a
Casualty Loss, Closing shall be extended by fifteen (15) days provided if
during such period either Party has timely requested binding arbitration
in accordance with Article 15.1 to resolve the dispute on the Casualty
Loss, Closing shall be extended until thirty days after judgment in such
arbitration proceeding. Any claim for a Casualty Loss not
resolved or referred to arbitration within such fifteen (15) day period
shall be deemed waived. Seller shall retain any and all
insurance proceeds and other payments associated with or attributable to
the Casualty Loss. Notwithstanding the foregoing, if the
aggregate Casualty Losses (whether cost to repair or replace) exceed
twenty-five percent (25%) of the Cash Purchase Price, either Party may, by
notice to the other at least one Business Day prior to Closing, elect to
terminate this Agreement under Article
14.1.4.
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ARTICLE 7. ALLOCATION OF
RESPONSIBILITIES AND INDEMNITIES
|
7.1
|
Opportunity for
Review. Each
Party represents that it has had an adequate opportunity to review all
release, indemnity and defense provisions in this Agreement, including the
opportunity to submit the same to legal counsel for review and advice and
acknowledges that the Purchase Price was negotiated and agreed upon after
consideration thereof. Based on the foregoing representation,
the Parties agree to the provisions set forth
below.
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|
7.2
|
Seller’s
Non-Environmental Indemnity Obligation. Seller
releases Buyer Group from and shall protect, defend, indemnify and hold
Buyer Group harmless from and against all Non-Environmental Claims to the
extent relating to, arising out of, or connected with, directly or
indirectly, ownership or operation of the Acquired Properties or any part
thereof prior to the Effective Accounting Date, including
Non-Environmental Claims relating to: (a) injury or death of any person
whomsoever; (b) damages to or loss of any property or resources; (c)
breach of contract; (d) common law causes of action such as negligence,
strict liability; nuisance or trespass, or (e) fault imposed by Law or
otherwise. These indemnity and defense obligations apply
regardless of cause or of any negligent acts or omissions (including sole
negligence, concurrent negligence or strict liability), breach of duty
(statutory or
otherwise), violation of law, or other fault of Buyer Group, or any
pre-existing defect. The indemnity obligations of Seller in this Article
7.2 shall survive Closing or termination of this Agreement without
limit.
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|
7.3
|
Seller’s Environmental
Indemnity Obligation. Seller
releases Buyer Group from and, subject to the limitations set forth in
this Agreement, shall protect, defend, indemnify and hold Buyer Group
harmless from and against all Environmental Claims to the extent relating
to, arising out of, or connected with, directly or indirectly, ownership
or operation of the Acquired Properties or any part thereof prior to the
Effective Accounting Date. This indemnity and defense
obligation applies regardless of cause or of any negligent acts or
omissions (including sole negligence, concurrent negligence or strict
liability), breach of duty (statutory or otherwise), violation of law, or
other fault of Buyer Group, or any pre-existing
defect.
|
|
7.4
|
Limitations on
Seller’s Environmental Indemnities. Notwithstanding
anything in this Agreement to the contrary, Seller has no obligation under
this Agreement or otherwise to protect, defend, indemnify, and hold Buyer
Group harmless from and against Environmental Claims for which Buyer has
not provided Seller with notice in accordance with Article 7.5 within one
year after the Closing Date (after said one year period any new
Environmental Claim shall be handled under the Operating Agreement as a
joint account expense);
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|
7.5
|
Notice of
Claims. If
a Claim is asserted against a Party for which the other Party may have an
obligation of indemnity and defense (whether under this Article 7 or any
other provision of this Agreement), the Party seeking indemnification
(“Indemnified Party”) shall give the Party from which the Indemnified
Party seeks indemnification (“Indemnifying Party”) prompt written notice
of the Claim, setting forth the particulars associated with the Claim
(including a copy of the written Claim, if any) as then known by the
Indemnified Party (“Claim Notice”).
|
|
7.6
|
Defense of
Claims. Within
thirty (30) Days after the Indemnifying Party receives a Claim Notice, the
Indemnifying Party shall notify the Indemnified Party whether or not the
Indemnifying Party will assume responsibility for defense and payment of
the Claim. The Indemnified Party is authorized, prior to and
during such thirty (30) day period, to file any motion, pleading or other
answer that it deems necessary or appropriate to protect its interests, or
those of the Indemnifying Party, and that is not prejudicial to the
Indemnifying Party. If the Indemnifying Party elects not to
assume responsibility for defense and payment of the Claim, the
Indemnified Party may defend against, or enter into any settlement with
respect to, the Claim as it deems appropriate without relieving the
Indemnifying Party of any indemnification obligations the Indemnifying
Party may have with respect to such Claim. The Indemnifying
Party’s failure to respond in writing to a Claim Notice within the thirty
(30) Day period shall be deemed an election by the Indemnifying Party not
to assume responsibility for defense and payment of the
Claim. If the Indemnifying Party elects to
assume responsibility for defense and payment of the Claim: (a) the
Indemnifying Party shall defend the Indemnified Party against the Claim
with counsel of the Indemnifying Party’s choice (reasonably acceptable to
Indemnified Party which shall cooperate with the Indemnifying Party in all
reasonable respects in such defense), (b) the Indemnifying Party shall pay
any judgment entered or settlement with respect to such Claim, (c) the
Indemnifying Party shall not consent to entry of any judgment or enter
into any settlement with respect to the Claim that: (i) does not include a
provision whereby the plaintiff or claimant in the matter releases the
Indemnified Party from all liability with respect to the Claim; or (ii)
contains terms that may materially and adversely affect the Indemnified
Party (other than as a result of money damages covered by the indemnity),
and (d) the Indemnified Party shall not consent to entry of any judgment
or enter into any settlement with respect to the Claim without the
Indemnifying Party’s prior written consent. In all instances
the Indemnified Party may employ separate counsel and participate in
defense of a Claim, but the Indemnified Party shall bear all fees and
expenses of counsel employed by the Indemnified
Party.
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|
7.7
|
Waiver of Certain
Damages. Each
Party irrevocably waives and agrees not to seek and agrees that no Party
shall be entitled to indirect, consequential, punitive, statutory or
exemplary damages of any kind in connection with any dispute arising out
of or related to this Agreement or breach hereof. This waiver and
limitation of damages shall apply to any awards that may result from
arbitration pursuant to Article 15. For the avoidance of doubt, this
Article7.7 does not diminish or otherwise affect the Parties’ rights and
obligations to be indemnified against, and provide indemnity for, Claims
under any indemnities in this Agreement. This waiver and
limitation of damages shall survive Closing or termination of this
Agreement without limit.
|
ARTICLE 8.
DISCLAIMERS
|
8.1
|
Disclaimers. Except
as otherwise expressly stated in this Agreement or its exhibits: (a)
Seller shall assign and convey the Acquired Properties to Buyer “AS-IS,
WHERE-IS”, and with all faults and defects in their present condition and
state of repair, without recourse, even for the return of the Cash
Purchase Price; and (b) Seller disclaims any and all representations and
warranties with respect to the Acquired Properties, express, statutory,
implied or otherwise, including any warranty as to (i) title; (ii)
compliance with Laws; (iii) existence of any and all prospects or
recompletion opportunities; (iv) geographic, geologic or geophysical
characteristics; (v) existence,
quality, quantity or recoverability of hydrocarbon substances; (vi)
ability to produce, including production or decline rates; (vii) costs,
expenses, revenues, receipts, prices, accounts receivable or accounts
payable; (viii) contractual, economic or financial information and data;
(ix) continued financial viability, including present or future value or
anticipated income or profits; (x) environmental or physical condition
(surface and subsurface), (xi) federal, state, or local income or other
tax consequences; (xii) absence of patent or latent defects; (xii) safety;
(xiii) state of repair; (xiv) merchantability; (xv) fitness for a
particular purpose; and (xvi) conformity to models or samples of
materials; and Buyer (on behalf of Buyer Group and their successors and
assigns) irrevocably waives any and all claims they may have against
Seller Group associated with the
same.
|
|
8.2
|
Disclaimer of
Statements and Information.
|
Seller
expressly disclaims any and all liability and responsibility for and associated
with the quality, accuracy, completeness or materiality of information, data and
materials shown to or furnished (electronically, orally, in writing or any other
medium and whether or not shown or furnished before or after execution of this
Agreement) to Buyer Group associated with the Acquired Properties or the
transaction contemplated by this Agreement; and Buyer (on behalf of Buyer Group
and their successors and assigns) irrevocably waives any and all claims they may
have against Seller Group associated with the same.
ARTICLE 9. SELLER’S
REPRESENTATIONS AND WARRANTIES
|
9.1
|
Seller’s
Representations and Warranties. Seller
represents and warrants to Buyer that on the date of this Agreement and as
of Closing (unless another time is set forth
below):
|
|
9.1.1
|
Organization and Good
Standing. Seller is a corporation duly organized,
validly existing and in good standing under the Laws of Delaware and has
all requisite corporate power and authority to own and operate the
Acquired Properties. Seller is duly licensed or qualified to do
business and is in good standing in all jurisdictions in which the
Acquired Properties are located and all jurisdictions adjacent to the
offshore blocks covered by the Leases. Seller is qualified under Law to
own the Acquired Properties and in particular, Seller is qualified
pursuant to the rules and regulations of the MMS to own federal oil and
gas leases in the Outer Continental Shelf, Gulf of Mexico, and is in good
standing with, authorized by and qualified with all governmental agencies
with jurisdiction or cognizance over operations on the Outer Continental
Shelf, Gulf of Mexico, to the extent Seller is required by such agencies
to so qualify and maintain good
standing.
|
|
9.1.2
|
Corporate Authority;
Authorization of Agreement. Seller has all requisite
corporate power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated by this Agreement and to perform
all obligations of Seller in this Agreement. This Agreement,
when executed and delivered by Seller, constitutes the valid and binding
obligation of Seller, enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency or
other Laws relating to or affecting the enforcement of creditors’ rights
and general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
|
|
9.1.3
|
No
Violations. Seller’s execution and delivery of this
Agreement and consummation of the transaction contemplated by this
Agreement will not:
|
|
(a)
|
conflict
with or require consent of any person or entity under any terms,
conditions or provisions of Seller’s certificate of incorporation or
bylaws;
|
|
(b)
|
violate
any provision of any agreement with any third party binding Seller with
respect to the Acquired Properties, or require any consent or approval
under any Law applicable to Seller (except for consents and approvals of
governmental entities or authorities customarily obtained subsequent to
transfer of title); or
|
|
(c)
|
result
in creation or imposition of any lien or encumbrance on any of the
Acquired Properties.
|
|
9.1.4
|
Title. All
documents to be executed and delivered by Seller to Buyer, transferring
title to the Acquired Properties, shall convey the Acquired Properties
without warranty of title of any kind, express, implied or statutory,
except for matters arising by, through or under Seller, but not otherwise;
provided that Buyer shall have full substitution and subrogation in and to
all covenants and warranties of Seller’s predecessors in
title.
|
|
9.1.5
|
Litigation. There
is no litigation, action or proceeding by a Third Party pending against
Seller or, to Seller’s knowledge, threatened against Seller that would
have a material adverse effect on the value, ownership or operation of the
Acquired Properties or that would prevent timely consummation of the
transaction contemplated by this
Agreement.
|
|
9.1.6
|
Bankruptcy. There
are no bankruptcy or receivership proceedings pending against, being
contemplated by or, to Seller’s knowledge, threatened against
Seller.
|
|
9.1.7
|
Contracts. Except
as disclosed to Buyer on Schedule 9.1.7, (i) there are no contracts that
are currently in force and effect that affect all or a part of the
Acquired Properties, and no Person is in default under or in breach of any
such contract, and (ii) prior contracts that may have related to the
Acquired Properties, such as operating agreements and tax partnerships,
that are not listed on such schedule, are no longer in force or
effect. Prior to Closing, Seller shall have the right to
supplement Schedule 9.1.7 with contracts meeting the criteria of Article
11.7.
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|
9.1.8
|
Compliance with
Laws. To the best of Seller’s knowledge after due
diligence by Seller, Seller’s ownership and operation of the Acquired
Properties has been in material compliance with all applicable Laws.
Seller has received no notice from the MMS, or any Third Party, that
Seller is not in full compliance with applicable Law with respect to the
Leases.
|
|
9.1.9
|
Preferential Rights
and Consents. There are no preferential rights to purchase,
consents to assign or any other rights of Third Parties affecting or
relating to the Acquired Properties or this transaction, other than
governmental consents ordinarily obtained after
Closing.
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|
9.1.10
|
Lease
Maintenance. The Leases have been properly maintained in
force and effect to the present
time.
|
|
9.1.11
|
Tax
Partnerships. There are no tax partnerships in force and effect
relating to the Properties.
|
ARTICLE 10. BUYER’S
REPRESENTATIONS AND WARRANTIES
|
10.1
|
Buyer’s
Representations and Warranties. Buyer
represents and warrants to Seller that on the date of this Agreement and
as of Closing:
|
10.1.1
|
Organization and Good
Standing. Buyer is a corporation duly organized, validly
existing and in good standing under the Laws of Delaware and has all
requisite corporate power and authority to own the Acquired
Properties. Buyer is qualified under Law to own the Acquired
Properties and in particular, Buyer is qualified pursuant to the rules and
regulations of the MMS to own federal oil and gas leases in the Outer
Continental Shelf, Gulf of Mexico, and is in good standing with,
authorized by and qualified with all governmental agencies with
jurisdiction or cognizance over operations on the Outer Continental Shelf,
Gulf of Mexico, to the extent Buyer is required by such agencies to so
qualify and maintain good standing. Buyer is duly licensed or qualified to
do business and is in good standing in all jurisdictions adjacent to the
offshore blocks covered by the
Leases.
|
|
10.1.2
|
Corporate Authority;
Authorization of Agreement. Buyer has all requisite
corporate power and authority to execute and deliver this Agreement, to
consummate the transaction contemplated by this Agreement and to perform
all obligations placed on Buyer in this Agreement. This
Agreement, when executed and delivered by Buyer, constitutes the valid and
binding obligation of Buyer, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency or other Laws relating to or affecting the enforcement of
creditors’ rights and general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in
equity).
|
|
10.1.3
|
No
Violations. Buyer’s execution and delivery of this
Agreement and consummation of the transaction contemplated by this
Agreement will not:
|
|
(a)
|
conflict
with or require consent of any person or entity under any terms,
conditions or provisions of Buyer’s certificate of incorporation or
bylaws; or
|
|
(b)
|
violate
any provision of, or require any consent or approval under any Law
applicable to Buyer (except for consents and approvals of governmental
entities or authorities customarily obtained subsequent to transfer of
title).
|
|
10.1.4
|
SEC
Disclosure. Buyer is acquiring the Acquired Properties
for its own account for use in its trade or business, and not with a view
toward or for sale associated with any distribution thereof, nor with any
present intention of making a distribution thereof within the meaning of
the Securities Act of 1933, as
amended.
|
|
10.1.5
|
Litigation. There
is no litigation, action or proceeding pending against Buyer or, to
Buyer’s knowledge, threatened against Buyer that would prevent timely
consummation of the transaction contemplated by this
Agreement.
|
|
10.1.6
|
Independent
Evaluation. Without waiving Seller’s representations,
warranties and indemnities, Buyer is sophisticated in evaluation,
purchase, ownership and operation of oil and gas properties and related
facilities similar to the Acquired Properties and in making its decision
to enter into this Agreement and consummate the transaction contemplated
herein, Buyer: (a) relied solely on its own independent investigation and
evaluation of the Acquired Properties and the advice of its engineers,
contractors, geological and geophysical advisors, lawyers and accountants
and not on any comments, statements, reports, projections or other
documents or materials provided by Seller or its agents, whether before or
after execution of this Agreement; and (b) satisfied itself as to the
environmental, physical and other condition of, and contractual
arrangements affecting, the Acquired
Properties.
|
|
10.1.7
|
Regulatory. Buyer
is now (or as of Closing) and hereafter (or thereafter) shall continue to
be, qualified to own federal and state oil, gas and mineral leases in all
jurisdictions (including the federal and state waters in the Gulf of
Mexico) where the Acquired Properties are located, and the consummation of
the transactions contemplated in this Agreement will not cause Buyer to be
disqualified as such an owner. To the extent required by any
Laws, Buyer currently has (or as of Closing will have) and shall hereafter
(or thereafter) continue to maintain, lease bonds, area-wide bonds, any
other surety bonds or other financial security devices as may be required
by, and in accordance with, all Laws governing the ownership of such
leases and has filed any and all required reports necessary for ownership
of such Acquired
Properties.
|
|
10.1.8
|
Bankruptcy. There
are no bankruptcy or receivership proceedings pending against, being
contemplated by or, to Buyer’s knowledge, threatened against
Buyer.
|
ARTICLE 11. ADDITIONAL
COVENANTS
|
11.1
|
Buyer’s Assumption of
Obligations. Buyer
assumes, shall pay and shall timely perform and discharge all of Seller’s
duties and obligations to the extent allocable to the Acquired Properties
(including any and all contractual duties and obligations arising
therefrom) relating to the period on and after the Closing Date (but this
assumption shall not require Buyer to pay more with respect to the BP
Acquisition Agreement than is set out in Article 2.2). Without
limiting the generality of the foregoing covenant, Buyer and Seller agree
that the entirety of the Acquired Properties will be subject to the
royalty relief settlement agreement dated effective March 1, 2007 between
BP Exploration & Production, Inc. and the United States Department of
Interior, through its agency, the MMS, a copy of which has been delivered
to Buyer, but only insofar as such obligations apply to the Acquired
Properties (in such regard, as between Buyer and Seller, it shall be
deemed the Acquired Properties were a portion of the interests in the
Leases assigned by BP Exploration & Production, Inc. to Seller in
April, 2007).
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|
11.2
|
Asbestos and
NORM. The
Acquired Properties may currently or have in the past contained asbestos
and NORM, and special procedures associated with assessment, remediation,
removal, transportation or disposal of asbestos and NORM may be necessary.
Should Closing occur, cost of NORM removal shall be a joint account charge
under the Operating Agreement.
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|
11.3
|
Plugging and
Abandonment. The Acquired Properties contain two xxxxx
and subsea facilities that have been temporarily abandoned (sometimes
known as the Garden Banks 782 #1 and #2 xxxxx). Except as noted below,
Seller, its successors and assigns, shall remain solely responsible for
plugging and abandonment of such two xxxxx and shall indemnify Buyer
therefrom. However, should Closing occur and either or both of such xxxxx
be re-entered for drilling or sidetracking operations solely within the
Acquired Properties, plugging and abandonment of such well or xxxxx so
re-entered shall be handled as provided in the Operating
Agreement.
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|
11.4
|
Sales Tax. The
consideration paid for the Acquired Interests is inclusive of any Sales
Tax or similar tax that may be owing and Seller shall timely remit any due
to the proper authorities. Prior to Closing, Buyer and Seller shall
allocate to any property subject to such tax the agreed portion of the
Cash Purchase Price. Notwithstanding anything
contained in this Agreement to the contrary (including Article 7), Seller
releases Buyer Group from and shall fully protect, defend, indemnify and
hold Buyer Group harmless from and against any and all Claims (no matter
when asserted) relating to, arising out of, or connected with, directly or
indirectly, Sales Tax (and any penalty or interest) resulting from or
associated with Seller’s transfer of Acquired Properties to
Buyer. This indemnity and defense obligation applies regardless
of cause or of any negligent acts or omissions (including fault, sole
negligence, concurrent negligence or strict liability), breach of duty
(statutory or otherwise), violation of Law, or other fault, or any
pre-existing defect.
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|
11.5
|
Third Party
Technology. Third
Party proprietary seismic and Third Party technology, including software,
may be used in connection with ownership of the Acquired Properties. A
listing of any such licenses is attached as Schedule 11.5. Notwithstanding
anything in this Agreement to the contrary, Buyer is responsible for
obtaining any necessary consents to Seller’s assignment of any licenses or
other agreements or for Buyer to enter into new licenses or other
agreements as may be needed to permit Buyer to continue to utilize any
Third Party seismic or Third Party technology used on the Acquired
Properties after the Closing Date. Seller shall reasonably
assist Buyer in contacting the relevant Third Parties, but Buyer shall be
solely responsible for and shall bear all costs and transfer and other
fees required to obtain licenses, assignments or new
agreements.
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|
11.6
|
BP Acquisition
Agreement. Seller shall
not amend or otherwise modify the terms and provisions of the BP
Acquisition Agreement (before or after Closing) without the prior written
approval of Buyer which consent shall not be unreasonably withheld,
delayed or conditioned if the change will not affect
Buyer.
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|
11.7
|
Additional
Contracts. Seller is in the process of negotiating contracts for
the transportation of production produced from the Leases from the
production handling facility described in the PHA to one or more locations
onshore, and also may negotiate onshore processing arrangements. Before
and subsequent to Closing, Seller shall regularly communicate with Buyer
regarding the progress of such negotiations, including economic and other
relevant terms under discussion. Unless otherwise directed by Buyer: (i)
Seller’s discussions shall cover production produced from the Acquired
Interests; (ii) Seller will give Buyer a reasonable opportunity to comment
on contract language; (iii) if a contract is to be executed prior to
Closing, Seller must first secure Buyer’s prior written consent to the
terms thereof (such contract to the extent it will burden the Acquired
Properties shall be added to Schedule 9.1.7). In a similar vein, Seller
will keep Buyer informed of operations occurring (or anticipated to occur)
prior to Closing and shall seek Buyer’s prior written approval before
undertaking any operation for which an Authority for Expenditure would be
required under the Operating
Agreement.
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|
11.8
|
ORRI. The
conveyance to Buyer shall be made free and clear of all ORRI (with
Seller’s remaining interest to bear all ORRI), and Seller shall
indemnify and hold harmless Buyer Group from any and all Claims
and losses that may be suffered by any of the Buyer Group
arising from or related to such
ORRI.
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|
11.9
|
Exclusivity.
Until the earlier of Closing or the date this Agreement is terminated,
none of Seller, Seller’s Affiliates or any member of Seller’s Group shall,
directly or indirectly (i) initiate, solicit, knowingly encourage or
facilitate (including by way of furnishing information) any inquiries or
the making or submission of any proposal regarding the Leases; (ii)
participate or engage in discussions or negotiations with, or disclose any
non-public information or data relating to the Leases or afford access to
the properties, books or records related to the Leases to any entity that
has made a transaction proposal related to the Leases; or (iii) accept any
proposal or enter into any agreement, including any letter of intent,
memorandum of understanding, agreement in principle, merger agreement,
acquisition agreement, or other similar agreement, arrangement or
understanding, constituting or related to the Leases. Seller shall
immediately notify Buyer should any Third Party makes any proposal,
solicits Seller or makes any inquiry with respect to the Properties or
Leases, such notice to contain details regarding such Third Party approach
to Seller.
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|
11.10.
|
Notification of
Breaches Until the Closing.
|
|
11.10.1
|
Buyer
shall notify Seller promptly after Buyer obtains actual knowledge that any
representation or warranty of Seller contained in this Agreement is untrue
in any material respect or will be untrue in any material respect as of
the Closing Date or that any covenant or agreement to be performed or
observed by Seller prior to or on the Closing Date has not been so
performed or observed in any material
respect.
|
|
11.10.2
|
Seller
shall notify Buyer promptly after Seller obtains actual knowledge that any
representation or warranty of Buyer contained in this Agreement is untrue
in any material respect or will be untrue in any material respect as of
the Closing Date or that any covenant or agreement to be performed or
observed by Buyer prior to or on the Closing Date has not been so
performed or observed in a material respect. Seller shall notify Buyer
promptly after Seller obtains actual knowledge that any representation or
warranty of Seller contained in this Agreement is untrue in any material
respect or will be untrue in any material respect as of the Closing Date
or that any covenant or agreement to be performed or observed by Seller
prior to or on the Closing Date has not been so performed or observed in a
material respect.
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|
11.10.3
|
If
any of Buyer’s or Seller’s representations or warranties is untrue or
shall become untrue in any material respect between the date of execution
of this Agreement and the Closing Date, or if any of Buyer’s or Seller’s
covenants or agreements to be performed or observed prior to or on the
Closing Date shall not have been so performed or observed in any material
respect, but if such breach of representation, warranty, covenant or
agreement shall (if curable) be cured by the Closing, then such breach
shall be considered not to have occurred for all purposes of this
Agreement.
|
ARTICLE 12. CONDITIONS
PRECEDENT TO CLOSING
|
12.1
|
Conditions Precedent
to Seller’s Obligation to Close. Seller
shall, subject to satisfaction or waiver of the conditions to Closing in
Article 12.2, consummate the sale of the Acquired Properties on the
Closing Date, provided the following conditions precedent have been
satisfied or waived by Seller:
|
|
12.1.1
|
all
representations and warranties of Buyer contained in this Agreement are
true and correct in all material
respects;
|
|
12.1.2
|
Buyer
shall have complied in all material respects with all Buyer’s material
obligations, covenants and conditions in this Agreement to be performed or
complied with prior to Closing;
|
|
12.1.3
|
Buyer
shall have provided Seller evidence satisfactory to Seller that Buyer is
as of Closing in full compliance with all governmental requirements for
ownership of the Acquired Properties (except consents by governmental
entities or authorities customarily obtained subsequent to transfer of
title); and
|
|
12.1.4
|
Buyer’s
ultimate parent company, ITOCHU Corporation, shall have executed a
guaranty substantially of the form of the Guaranty guaranteeing the
performance by Buyer; and
|
|
12.1.5
|
Buyer
shall have executed the Operating
Agreement.
|
|
12.2
|
Conditions Precedent
to Buyer’s Obligation to Close. Buyer
shall, subject to satisfaction or waiver of the conditions to Closing set
forth in Article 12.1, consummate the purchase of the Acquired Properties
contemplated by this Agreement on the Closing Date, provided the following
conditions precedent have been satisfied or waived by
Buyer:
|
|
12.2.1
|
all
representations and warranties of Seller contained in this Agreement are
true and correct in all material
respects;
|
|
12.2.2
|
Seller
shall have complied in all material respects with all Seller’s material
obligations and conditions in this Agreement to be performed or complied
with prior to Closing;
|
|
12.2.3
|
Buyer
shall have found Seller’s title to the Properties to be Defensible
Title;
|
|
12.2.4
|
Buyer
is satisfied with its ability to transport gas from the production
handling facility described in the PHA through the Magnolia Gathering
Lateral Pipeline (which runs from such facility to an interconnect with
Garden Banks 128);
|
|
12.2.5
|
Seller
shall have provided an amendment or other evidence satisfactory to Buyer
that Article 10.3.1 (b) of the PHA has been amended or modified to provide
for the right to terminate for the failure to commence initial production
thereunder shall not accrue until at a date no earlier than August 21,
2009;
|
|
12.2.6
|
The
Magnolia Owners (as such term is defined in the PHA) shall have agreed in
writing delivered to Buyer that Buyer is creditworthy and that the lien
provisions of Article 13.2.1 (b) of the PHA will not be applicable to
Buyer;
|
|
12.2.7
|
The
production handling facility described in the PHA shall not have been
materially damaged or lost;
|
|
12.2.8
|
Seller’s
ultimate parent company, Xxxxxx Petroleum Company shall have executed a
guaranty of substantially the form of the Guaranty guaranteeing the
performance of Seller;
|
|
12.2.9
|
Seller
shall have furnished to Buyer adequate recordable originals of releases of
all existing liens, mortgages, encumbrances, and security interests
burdening the Acquired Properties;
and
|
|
12.2.10
|
Seller
shall have executed the Operating Agreement and Buyer shall have received
contractual assurances, in form and substance and from such parties
satisfactory to Buyer, of the performance of obligations under
the Operating Agreement.
|
|
12.3
|
Conditions Precedent
to Obligation of Each Party to Close. The
Parties shall, subject to satisfaction or waiver of the conditions to
Closing set forth in Articles 12.1 and 12.2, consummate the sale and
purchase of the Acquired Properties on the Closing Date, provided the
following conditions precedent have been satisfied or waived by both
Parties:
|
|
12.3.1
|
the
Credit Agreement and any related note, security documents, certificates
and opinions have been executed by all necessary
parties:
|
|
12.3.2
|
no
injunction, order or award restraining, enjoining or otherwise prohibiting
consummation of or granting material damages associated with the
transactions contemplated by this Agreement or sale of any one or more of
the Acquired Properties has been issued by any court, governmental entity
or arbitrator of competent jurisdiction, and no suits, actions or other
proceedings are pending before any such court, governmental entity or
arbitrator in which a third party seeks to restrain, enjoin or otherwise
prohibit consummation of or obtain material damages associated with the
transactions contemplated by this Agreement or sale of any one or more of
the Acquired Properties; nor to the Parties’ knowledge are there any
pending investigations by a governmental entity that would be likely to
result in any a suit, action or other proceedings to restrain, enjoin or
otherwise prohibit consummation of the transaction contemplated by this
Agreement or sale of any one or more of the Acquired Properties;
and
|
|
12.3.3.
|
all
material consents and approvals (except for consents and approvals of
governmental entities or authorities customarily obtained subsequent to
transfer of title) have been
obtained.
|
ARTICLE 13. THE
CLOSING
|
13.1
|
Closing. No
later than five (5) Business Days prior to the Closing Date, Seller shall
provide Buyer, for Buyer’s approval, a statement setting forth the
Adjusted Cash Purchase Price (“Closing Statement”) and other amounts to be
paid by Buyer at Closing. Seller also shall provide Buyer wiring
instructions designating the account(s) to which Buyer shall deliver the
Adjusted Cash Purchase Price. Closing shall be held on the
Closing Date in Seller’s office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx, 00000 or such other place as Seller and Buyer may
agree.
|
|
13.2
|
Seller’s Obligations
at Closing. At
Closing, Seller shall deliver to Buyer, unless waived by Buyer, the
following:
|
|
13.2.1
|
a
document substantially in the form of the Assignment and Xxxx of Sale,
Exhibit “D” conveying the Acquired Properties, executed by an officer of
Seller and acknowledged, in four (4) multiple originals plus such
additional originals as are necessary to allow recording in all
appropriate jurisdictions, or such greater number as the Parties
agree;
|
|
13.2.2
|
four
(4) originals of MMS Form 151, Assignment of Operating Rights conveying
the operating rights in the Acquired Properties, in substantially the form
of Exhibit G attached hereto.
|
|
13.2.3
|
four
(4) originals of the Certificate executed by an authorized officer of
Seller;
|
|
13.2.4
|
four
(4) originals of the Non-Foreign Certificate executed by an officer of
Seller;
|
|
13.2.5
|
four
(4) originals of a Secretary’s Certificate or Assistant Secretary’s
Certificate certifying as to the due authorization of Seller’s signatory
to the documents signed at Closing;
|
|
13.2.6
|
one
original of the Guaranty executed by Xxxxxx Petroleum
Company;
|
|
13.2.7
|
any
other instruments and agreements (including ratification or joinder
instruments required to transfer the Acquired Properties from Seller to
Buyer) as are necessary or appropriate to comply with Seller’s obligations
under this Agreement; including (i) certificates from the
Secretary or Assistant Secretary of Seller dated as of the Closing Date,
certifying and attaching a true and correct copy of Seller’s board of
director’s authorization of the execution of the Agreement and the
transactions contemplated therein, and (ii) evidence that the Seller is at
Closing in full compliance with all governmental requirements to own and
operate the Acquired Properties.
|
|
13.3
|
Buyer’s Obligations at
Closing. At
Closing, Buyer shall deliver to Seller, unless waived by Seller, the
following:
|
|
13.3.1
|
the
Adjusted Cash Purchase Price, as set forth on the Closing Statement (but
subject to Article 2.2 (a)), by wire transfer of immediately available
funds to the account(s) designated by Seller in accordance with this
Agreement;
|
|
13.3.2
|
the
documents referred to in Articles 13.2.1 and 13.2.2, executed by an
authorized officer of Buyer and
acknowledged;
|
|
13.3.3
|
four
(4) originals of the Certificate executed by an authorized officer of
Buyer;
|
|
13.3.4
|
one
original of the Guaranty executed by ITOCHU
Corporation;
|
|
13.3.5
|
any
other instruments and agreements (including ratification or joinder
instruments required to transfer the Acquired Properties from Seller to
Buyer) as necessary or appropriate to comply with Buyer’s obligations
under this Agreement; including (i) certificates from the
Secretary or Assistant Secretary of Buyer dated as of the Closing Date,
certifying and attaching a true and correct copy of Buyer’s board of
director’s authorization of the execution of the Agreement and
the transactions contemplated therein, and (ii) evidence that the Buyer is
at Closing in full compliance with all governmental requirements to
purchase the Acquired Properties;
|
|
13.3.6
|
four
(4) originals of such Designation of Operator forms as may be required by
the MMS in order that Buyer may designate Seller as the operator of
the Acquired Properties, together with related forms such as
certificates of financial responsibility, each executed by an authorized
officer of Seller and Buyer.
|
ARTICLE 14.
TERMINATION
|
14.1
|
Grounds for
Termination. This
Agreement may be terminated (except for the individual provisions
specifically referenced in Article 14.2 below) at any time prior to
Closing (unless another date is stated below) as
follows:
|
|
14.1.1
|
by
the Parties’ mutual written
agreement;
|
|
14.1.2
|
by
either Party, if consummation of the transaction contemplated by this
Agreement would violate any non-appealable final order, decree or judgment
of any state or federal court or agency enjoining, restraining,
prohibiting or awarding substantial damages in connection with (a)
Seller’s proposed sale of Acquired Properties to Buyer, or (b)
consummation of the transaction contemplated by this
Agreement;
|
|
14.1.3
|
notwithstanding
anything contained in this Agreement to the contrary but in all events
subject to 14.3, by either Party, if Closing has not occurred on or before
sixty days (60) after execution of this Agreement;
or
|
|
14.1.4
|
by
either Seller or Buyer pursuant to Article
6.2.
|
|
14.2
|
Effect of
Termination. If this Agreement is terminated in
accordance with Article 14.1, such termination is without liability to
either Party, except performance of obligations in this Article 14.2 and
Articles 14.3, 14.4, 15.1, 16.1, 16.3, 16.10, 16.11, 16.12, 16.13, 16.14,
16.15 and 16.16 (all of which provisions survive termination of this
Agreement) and any other provision in this Agreement that expressly or by
implication will survive
termination.
|
|
14.3
|
Dispute over Right to
Terminate. If there is a dispute between the Parties
over the right of a Party to terminate this Agreement, Closing shall not
occur on the Closing Date, and the Party that disputes the right of the
other Party to terminate is entitled, within ten (10)
Business Days after the planned Closing Date, to initiate arbitration to
resolve the dispute. If the Party that disputes the other
Party’s right to terminate this Agreement does not initiate arbitration
within the ten (10) Business Day period, this Agreement shall be deemed
properly terminated as of the original date of termination and the Party that disputes or
exercises its right to dispute termination of this Agreement, on behalf of
itself, its Affiliates, and the officers, directors, agents, employees,
successors and assigns of itself and its Affiliates, irrevocably waives
any and all claims it and they may have against the terminating Party
for termination of this
Agreement.
|
|
14.4
|
Confidentiality. Notwithstanding
the termination of this Agreement or any other provision of this Agreement
to the contrary, the terms of the Confidentiality Agreement remain in full
force and effect, provided that if and when Closing occurs and effective
on the Closing Date, the Confidentiality Agreement shall terminate to the
extent (and only to the extent) it applies to the Acquired
Properties.
|
ARTICLE 15.
ARBITRATION
|
15.1
|
Arbitration. Arbitrable
Disputes must be resolved through use of binding arbitration using three
(3) arbitrators, in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the “AAA”), as supplemented to the
extent necessary to determine any procedural appeal questions by the
Federal Arbitration Act (Title 9 of the United States Code). If
there is any inconsistency between this Article and the Commercial
Arbitration Rules or the Federal Arbitration Act, this Article shall
control. Arbitration must be initiated within the applicable
time limits set forth in this Agreement and not thereafter or if no time
limit is given, within the time period allowed by the applicable statute
of limitations. Prior to initiating arbitration, the Parties
agree to make a good faith effort to resolve any Arbitrable Dispute by
referring the Arbitrable Dispute to the senior management of each Party
for personal, high-level consultation. If the Arbitrable Dispute is not
resolved within thirty (30) Business Days after notice by one Party to the
other Party of the initiation of such consultation, then either Party may
commence a proceeding for arbitration as provided in this Article.
Arbitration, if initiated, must be initiated by a Party (“Claimant”)
serving written notice on the other Party (“Respondent”) that the Claimant
elects to refer the Arbitrable Dispute to binding
arbitration. Claimant’s notice initiating arbitration must
identify the arbitrator Claimant has appointed. The Respondent
shall respond to Claimant within thirty (30) Days after receipt of
Claimant’s notice, identifying the arbitrator Respondent has
appointed. If the Respondent does not name an arbitrator within
the thirty (30) Day period, the Houston office of the AAA will name the
arbitrator for Respondent’s account. The two (2) arbitrators so
chosen shall select a third arbitrator within thirty (30) Days after the
second arbitrator has been appointed. If the Party-appointed
arbitrators cannot reach agreement upon the third arbitrator within the
thirty (30) Day period, the Houston office of the AAA shall appoint an
independent arbitrator. The Parties each shall pay one-half of
the compensation and expenses of the arbitrators. All
arbitrators must (a) be neutral persons who have never been officers,
directors, employees, or consultants or had other business or personal
relationships with the Parties or any of their Affiliates, officers,
directors or employees, and (b) have not less than seven (7) years
experience in the U.S. oil and gas industry. Discovery shall be in
accordance with the rules of the AAA. The hearing will be
conducted in Houston, Texas, and commence within thirty (30) Days after
the selection of the third arbitrator. The Parties and the
arbitrators should proceed diligently and in good faith so that the award
can be made as promptly as possible. Except as provided in the
Federal Arbitration Act, the decision of the arbitrators shall be binding
on and non-appealable by the Parties. The arbitrators shall
have no right or authority to grant or award indirect, consequential,
punitive or exemplary damages of any kind. This limitation of damages
shall survive termination of this Agreement or Closing without
limit.
|
ARTICLE 16.
MISCELLANEOUS
|
16.1
|
Notices. All
notices and other communications required or desired to be given hereunder
must be in writing and sent (properly addressed as set forth below) by (a)
certified or registered U.S. mail, return receipt requested, with all
postage and other charges fully prepaid, (b) hand or courier delivery, or
(c) facsimile transmission. Date of service by mail and
delivery is the date on which such notice is received by the addressee and
by facsimile is the date sent (as evidenced by fax machine generated
confirmation of transmission); provided, however, if such date received is
not a Business Day, then date of receipt will be on the next date that is
a Business Day. Each Party may change its address by notifying
the other Party in writing of such address change, and the change will be
effective thirty (30) Days after such notification is received by the
other Party.
|
To
Seller:
Xxxxxx
Petroleum Operating Company
000 Xxxxx
Xxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxxx 00000
Phone: (000)
000-0000
Facsimile: (000)
000-0000
Attn: Xxx
X. Xxxxxx, Land Manager
To
Buyer:
CIECO
Energy (US) Limited
0000 Xxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Phone: (000)
000-0000
Facsimile: (000)
000-0000
Attn:
Xxxxxxxxx Xxxxxxx, Vice President
|
16.2
|
Costs and Post-Closing
Consents. Notwithstanding
other provisions of this Agreement, Buyer shall be responsible for
recording and filing documents associated with assignment of the Acquired
Properties to it and for all costs and fees associated therewith,
including filing the assignments with appropriate federal, state and local
authorities as required by Law and in all adjoining counties or parishes
adjacent to the Acquired Properties. As soon as practicable
after recording or filing, Buyer shall furnish Seller all recording data
and evidence of all required filings. Buyer, with Seller’s
cooperation, shall be responsible for obtaining all consents and approvals
of governmental entities or authorities customarily obtained subsequent to
transfer of title and all costs and fees associated
therewith. Except as expressly provided otherwise in this
Agreement, all fees, costs and expenses incurred by the Parties in
negotiating this Agreement and in consummating the transaction
contemplated by this Agreement shall be paid in full by the Party that
incurred such fees, costs and
expenses.
|
|
16.3
|
Brokers, Agents and
Finders. Seller
has not retained any brokers, agents or finders in this matter for which
Buyer shall have any liability. Seller releases Buyer from and
shall fully protect, indemnify and defend Buyer and hold it harmless from
and against any and all claims relating to, arising out of, or connected
with, directly or indirectly, commissions, finders’ fees or other
remuneration due to any agent, broker or finder claiming by, through or
under Seller. Buyer represents to Seller that it has not
retained any agent or broker for Buyer associated with the proposed
transaction for which Seller shall have any liability, and no undisclosed
Person has a right to act on Buyer’s behalf with regard to the proposed
transaction. Buyer releases Seller from and shall fully
protect, indemnify and defend Seller and hold it harmless from and against
any and all claims relating to, arising out of, or connected with,
directly or indirectly, commissions, finders’ fees or other remuneration
due to any agent, broker or finder claiming by, through or under
Buyer.
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16.4
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Records. From
and after execution of this Agreement, Seller shall grant Buyer reasonable
access to the Records. Within: (i) sixty (60) Days after
Closing with respect to Records that Seller keeps at its office location:
and (ii) ninety (90) Days after the Closing Date with respect to Records
that Seller keeps in offsite storage Seller shall furnish Buyer copies of
all Records.
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16.5
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Further
Assurances. After
Closing and on an on-going basis: (a) Buyer shall execute and deliver or
use reasonable efforts to cause to be executed and delivered any other
instruments of conveyance and take any other actions as Seller reasonably
requests to more effectively put Seller in possession of any property that
was not intended by the Parties to have been conveyed or was conveyed in
error; and (b) Seller shall execute and deliver or use reasonable efforts
to cause to be executed and delivered any other instruments of conveyance
and take any other actions as Buyer reasonably requests to more
effectively put Buyer in possession of the Acquired Properties conveyed or
to have been conveyed in accordance with the terms of this
Agreement. In particular, Seller and Buyer agree to execute and
deliver such instruments and take such other actions as may be necessary
and advisable to: (i) make all filings, registrations, and recordings
which must be made with respect to the Acquired Properties in the records
of the MMS in order that the records maintained by the MMS shall
accurately reflect the transfer of the Acquired Properties from Seller to
Buyer; and (ii) obtain prompt and unconditional MMS approvals of transfer
of the Acquired Properties. To the extent the MMS requires,
Buyer agrees to promptly take any and all action necessary to post with
the MMS any supplemental bonds and provide any and all documentation that
the MMS requires, to evidence Buyer’s financial responsibility under
applicable federal regulations and MMS
policies.
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16.6
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Survival of Certain
Obligations. Except as
noted below, representations and warranties in Articles 9 and 10 of this
Agreement terminate two (2) years after the Closing Date; and thereafter
no action can be commenced either in court or disputes brought to
arbitration based on breach of those representations and warranties,
without prejudice to the right to recovery in connection with actions or
disputes commenced in the appropriate forum prior to the end of the two
(2) year period. The warranty of title given in the Assignment and Xxxx of
Sale shall survive without limit. Except as expressly provided otherwise
in this Agreement, agreements, covenants, waivers, disclaimers, releases
and obligations of indemnity and defense contained in this Agreement
survive the Closing indefinitely.
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16.7
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Amendments and
Severability. No
amendments, waivers or other modifications of terms of this Agreement
shall be effective or binding on the Parties unless they are written and
signed by both Parties. Invalidity of any provisions in this
Agreement shall not affect the validity of this Agreement as a whole, and
in case of such invalidity, this Agreement shall be construed as if the
invalid provision had not been included
herein.
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16.8
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Successors and
Assigns. Except
as provided otherwise in this Agreement, this Agreement may not be
assigned, either in whole or in part, without the express prior written
consent of the non-assigning Party, which consent shall not be
unreasonably withheld, delayed or conditioned, except that (i) Buyer,
after notice to Seller, may assign all or any part of its rights and
obligations hereunder to any one or more of Buyer’s current or future
Affiliates without Seller’s consent; (ii) Seller, after notice to Buyer,
may assign the Properties and this Agreement to an Affiliate of Seller
without Buyer’s consent provided (x) the assignment and any related
transfer agreement or documentation contains a warranty of title by,
through and under Seller and otherwise is in form and substance
satisfactory to Buyer, (y) the assigning party shall remain liable for all
representations, warranties and performance of all obligations of Seller
hereunder through the Closing and (z) the assigning party shall indemnify,
defend and hold Buyer, its successors and assigns, from and against any
damage, loss, cost or expense, including without limitation, attorney’s
fees, Buyer may incur or suffer arising or resulting, directly or
indirectly, from any failure or refusal, regardless of reason, of the MMS
to approve the initial or any subsequent assignment to Seller’s Affiliate
and (iii) notwithstanding the foregoing, for any such assignment to be
effective, (a) the assignee must be qualified to own federal leases at the
time of assignment and if the assignor is Seller, the assignee must also
be qualified to operate federal offshore leases, and (b) the Guaranty to
be given at Closing to secure the assigning party’s performance must
remain in full force and effect and shall apply to the performance of the
assignee as fully as it would have applied to the assigning party if no
assignment had been made. The terms, covenants and conditions contained in
this Agreement are binding upon and inure to the benefit of the Parties
and their successors and permitted
assigns.
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16.9
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Headings. Titles
and headings in this Agreement have been included solely for ease of
reference and shall not be considered in interpretation or construction of
this Agreement.
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16.10
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Governing
Law. This
Agreement (including administration of binding arbitration pursuant to
Article 15) is governed by the Laws of the State of Texas, excluding any
choice of law rules that would direct application of Laws of another
jurisdiction. Any action permitted by this Agreement to be
commenced in court shall be brought and maintained exclusively in federal
or state court located in Xxxxxx County, Texas, and each Party hereby
waives any objection it may have
thereto.
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16.11
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No
Partnership Created. It
is not the purpose or intention of this Agreement to create (and it shall
not be construed as creating) a joint venture, partnership or any type of
association, and neither Party is authorized to act as an agent or
principal for the other Party with respect to any matter related
hereto.
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16.12
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Public
Announcements. Seller
(on behalf of Seller Group) and Buyer (on behalf of Buyer Group) agree not
to issue any public statement or press release concerning this Agreement
or the transaction contemplated by it (including price or other terms)
without prior consent of the other Party, except, and only to the extent,
as may be required to comply with the requirements of applicable law and
then only after consultation with the other
Party.
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16.13
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No Third Party
Beneficiaries. Nothing
contained in this Agreement entitles anyone other than Seller or Buyer or
their authorized successors and assigns to any claim, cause of action,
remedy or right of any kind whatsoever, except with respect to waivers and
indemnities that expressly provide for waivers or indemnification of Buyer
Group or Seller Group, in which case members of such groups are considered
third party beneficiaries for the sole purposes of those waiver and
indemnity provisions.
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16.14
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Waiver of Consumer
Rights. As
partial consideration for the Parties entering into this Agreement, each
Party can and does hereby waive the provisions of the Texas Deceptive
Trade Practices Consumer Protection Act, Article 17.41 et seq., Texas
Business and Commerce Code, a law that gives consumers special rights and
protection, and all other consumer protection Laws of the State of Texas,
or of any other state that may be applicable to this transaction, that may
be waived by such Party. It is not the intent of either Party
to waive and neither Party does waive any Law or provision thereof that is
prohibited by Law from being waived. Each Party represents that
it has had an adequate opportunity to review the preceding waiver
provision, including the opportunity to submit the same to legal counsel
for review and advice and after consultation with an attorney of its own
selection voluntarily consents to this waiver, and understands the rights
being waived herein.
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16.15
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Redhibition
Waiver. If
any of the Acquired Properties are located in Louisiana and/or are subject
to Louisiana Law, Buyer expressly waives the warranty or fitness for
intended purposes or guarantee against hidden or latent redhibitory vices
under Louisiana Law, including Louisiana Civil Code Article 2520 (1870)
through 2548
(1870); waives all rights in redhibition pursuant to Louisiana Civil Code
Article 2420, et seq., including the warranty imposed by Civil Code
Article 2475 (1870); acknowledges that this express waiver shall be a
material and integral part of this sale and the consideration thereof; and
acknowledges that this waiver has been brought to the attention of Buyer
and explained in details and that Buyer has voluntarily and knowingly
consented generally and specifically to this waiver of
warranty of fitness and/or warranty against redhibitory vices and defects
for the Acquired Properties. All instruments of conveyance
(except Assignments of Operating Rights) to be delivered by Seller at
Closing shall expressly set forth the disclaimers of representations and
warranties contained in this
paragraph.
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16.16
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UTPCPL
Waiver. TO
THE EXTENT APPLICABLE TO THE ACQUIRED PROPERTIES OR ANY PORTION THEREOF,
BUYER HEREBY WAIVES THE PROVISIONS OF THE LOUISIANA UNFAIR TRADE PRACTICES
AND CONSUMER PROTECTION LAW (LA. R.S. 51:1402, ET SEQ.). BUYER
WARRANTS AND REPRESENTS THAT IT: (i) IS EXPERIENCED AND KNOWLEDGEABLE WITH
RESPECT TO THE OIL AND GAS INDUSTRY GENERALLY AND WITH TRANSACTIONS OF
THIS TYPE SPECIFICALLY; (ii) POSSESSES AMPLE KNOWLEDGE, EXPERIENCE AND
EXPERTISE TO EVALUATE INDEPENDENTLY THE MERITS AND RISKS OF THE
TRANSACTIONS HEREIN CONTEMPLATED; AND (iii) IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION.
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16.17
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Not to be Construed
Against Drafter. Each
Party has had an adequate opportunity to review each and every provision
of this Agreement and to submit the same to legal counsel for review and
advice. Based on the foregoing, the rule of construction, if
any, that a contract be construed against the drafter shall not apply to
interpretation or construction of this
Agreement.
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16.18
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Indemnities and
Conspicuousness of Provisions. The
release, defense, indemnification and hold harmless provisions provided
for in this Agreement shall be applicable whether or not the claims,
demands, suits, causes of action, losses, damages, liabilities, fines,
penalties and costs (including attorneys’ fees and costs of litigation) in
question arose solely or in part from the active, passive or concurrent
negligence, strict liability, breach of duty (statutory or otherwise),
violation of Law, or other fault of any Indemnified Party, or from any
pre-existing defect. The Parties agree that provisions of this
Agreement in “bold” type satisfy any requirement of the “express
negligence rule” and other requirement at law or in equity that provisions
be conspicuously marked or
highlighted.
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16.19
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Recordation. The
Assignment and Xxxx of Sale in the form attached as Exhibit “D” is
intended to convey all of the Acquired Properties being conveyed pursuant
to this Agreement. Certain properties or specific portions of the Acquired
Properties that are leased from, or require the approval to transfer by, a
governmental entity are conveyed under the Assignment and Xxxx of Sale and
also are described and covered by separate assignments made by Seller to
Buyer on officially approved forms, or forms acceptable to such entity, in
sufficient multiple originals to satisfy applicable statutory and
regulatory requirements. THE INTERESTS CONVEYED BY SUCH SEPARATE
ASSIGNMENTS ARE THE SAME, AND NOT IN ADDITION TO, THE INTERESTS CONVEYED
IN THE ASSIGNMENT AND XXXX OF SALE. Further, such assignments
shall be deemed to contain the special limited title warranty of Seller as
set out in the Parish form of
assignment.
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16.20
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Execution in
Counterparts. This
Agreement may be executed in counterparts, that when taken together
constitute one valid and binding
agreement.
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16.21
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Entire
Agreement. This
Agreement and the Confidentiality Agreement supersede all prior and
contemporaneous negotiations, understandings, letters of intent,
understandings and agreements (whether oral or written) between the
Parties or their Affiliates relating to the terms of purchase and sale of
the Acquired Properties, including that certain Callon/CIECO Preliminary
Term Sheet executed by Xxxxxx Petroleum Company and Buyer as of January 4,
2008, and constitute the entire understanding and agreement between the
Parties with respect to the sale, assignment and conveyance of the
Acquired Properties and other transactions contemplated by this
Agreement.
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16.22
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Strategic
Relationship. If
Closing occurs, for a period of one year after the Closing Date Seller and
its Affiliates shall offer Buyer and its Affiliates, on a ground floor
basis, the opportunity, but not the obligation, to participate up to a 50%
non-operated interest (calculated on the ownership interest of Seller and
its Affiliates) in each property acquisition and/or lease acquired at
lease sales by Seller or its Affiliates (“Opportunity”) covering property
in the Gulf of Mexico. The terms by which Buyer shall participate in any
Opportunity presented by Seller shall be defined by a mutually acceptable
definitive agreement to include terms as are usual and customary in the
industry. Seller and Buyer hereto agree to negotiate in good faith in
order to finalize the agreement in an expeditious
manner.
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The
Parties have caused this Agreement to be executed by their duly authorized
representatives on the day and year first set forth above.
SELLER:
XXXXXX PETROLEUM OPERATING COMPANY
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By:
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s/s Xxxx X. Xxxxxx
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Name: Xxxx
X. Xxxxxx
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Title: Chairman,
President & Chief Executive Officer
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BUYER:
CIECO ENERGY (US) LIMITED
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By:
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s/s Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx
Xxxxxxx
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Title: Vice
President
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