EXECUTION COUNTERPART
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of November
14, 2006, is among DUNE ENERGY, INC., a Delaware corporation ("Buyer"),
TRANSATLANTIC PETROLEUM (USA) CORP., a Colorado corporation ("USA"), and
TRANSATLANTIC PETROLEUM CORP., an Alberta corporation ("TNP" and, collectively
with USA, "Sellers").
In consideration of the mutual promises contained herein, the benefits to
be derived by each party hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Sellers agree to
sell and convey, and Buyer agrees to purchase and pay for, the Assets (as
defined in Section 1 below), subject to the following terms and conditions:
1. Certain Definitions. Except as otherwise provided or unless the context
otherwise requires, the terms defined in this Section 1 have the meanings herein
assigned to them and the capitalized terms defined in this opening paragraph and
subsequent paragraphs of this Agreement by inclusion in quotation marks and
parentheses have the meanings so ascribed to them.
(a) Allocated Value. The term "Allocated Value" means, with respect
to each Well and other item of property included in the Properties, the amount
set forth on Exhibit A-7 under the column styled "Allocated Value" for such Well
or other item of property. For purposes of this Agreement, Sellers and Buyer
agree and stipulate that the Allocated Values set forth in Exhibit A-7 have been
established solely for use in calculating adjustments to the Base Purchase Price
for purposes of Section 7, and not for purposes of federal or state income
taxation, such Allocated Values being solely for the convenience of Sellers and
Buyer.
(b) ANEC. The term "ANEC" means American Natural Energy Corporation,
an Oklahoma corporation.
(c) Assets. The term "Assets" means the Properties, the Debentures,
and the Assigned Claims.
(d) Assigned Claims. The term "Assigned Claims" means, collectively:
(i) all Claims and/or rights to recovery of USA arising out of or pursuant to
the litigation styled American Natural Energy Corporation v. Workstrings, LLC,
Superior Energy Services, Inc., and Superior Energy Services, LLC, Cause No.
04-3364, in the United States District Court for the Eastern District of
Louisiana; (ii) all Claims and/or rights to recovery of USA against ANEC with
respect to the quantum of the net revenue interest in the Oil and Gas Interests
conveyed by ANEC to USA pursuant to the USA-ANEC Exploration Agreement, which
Claims are the subject of the NRI Arbitration, insofar only as such Claims
and/or rights to recovery affect and pertain to the period from and after the
Effective Date; and (iii) all Claims and/or rights to recovery of USA arising
out of or pursuant to the Interpleader Action, insofar only as such Claims and
rights to recover affect and pertain to the period from and after the Effective
Date.
(e) Claims. The term "Claims" means any and all claims, demands,
notices of non-compliance or violation, notices of liability or potential
liability, investigations, actions (whether judicial, administrative, or
arbitrational), causes of action, suits, and controversies.
(f) Closing. The term "Closing" means the consummation of the
transactions contemplated in this Agreement.
(g) Debentures. The term "Debentures" means the following American
Natural Energy Corporation 8% Convertible Secured Debentures held by TNP, as the
same may be amended, restated, extended, or otherwise modified from time to
time:
(i) Debenture No. 0044, registered in favor of TNP on October
21, 2003, in the principal amount of U.S. $2,200,000; and
(ii) Debenture No. 0045, registered in favor of TNP on October
21, 2003, in the principal amount of U.S. $800,000.
(h) Development Agreement. The term "Development Agreement" means
the Development Agreement dated as of November 22, 2002, between ANEC and
ExxonMobil Corporation, as amended, supplemented, modified, restated, and in
effect from time to time.
(i) Interpleader Action. The term "Interpleader Action" means that
certain Complaint in Interpleader Pursuant to 28 U.S.C. ss. 1335, styled Teppco
Crude Oil, L.P. v. American Natural Energy Corporation, et al., Civil Action No.
06-0809, filed in the United States District Court for the Eastern District of
Louisiana.
(j) Liabilities. The term "Liabilities" means any and all losses,
judgments, damages, liabilities, injuries, costs, expenses, interest, penalties,
taxes, fines, obligations, and deficiencies. As used herein, the term
"Liabilities" includes, without limitation, reasonable attorneys' fees and other
costs and expenses of any Party receiving indemnification hereunder incident to
the investigation and defense of any Claim that results in litigation, or the
settlement of any Claim, as applicable.
(k) Mortgage. The term "Mortgage" means, collectively, (i) the
Mortgage, Collateral Assignment, Security Agreement, and Financing Statement
dated as of October 8, 2003, from ANEC to Computershare Trust Company, Inc.,
recorded on October 15, 2003, under Entry No. 287137, MOB 974, Page 176,
Mortgage Records, St. Xxxxxxx Xxxxxx, Louisiana, executed in connection with the
Debentures, and covering the Leases; (ii) Request for Notice of Seizure dated as
of October 8, 2003, executed by Computershare Trust Company, Inc., recorded on
October 15, 2003, under Entry No. 287138, MOB 974, Page 000, Xxxxxxxx Xxxxxxx,
Xx. Xxxxxxx Xxxxxx, Xxxxxxxxx; and (iii) Uniform Commercial Code Financing
Statement filed by ANEC, as Debtor, and Computershare Trust Company, Inc., as
Secured Party, recorded on October 15, 2003, under UCC No. 45-077582, Records of
St. Xxxxxxx Xxxxxx, Louisiana.
(l) NPI Conveyance. The term "NPI Conveyance" means that certain
Conveyance of Net Profits Interest dated December 28, 2001, from ANEC to the
Liquidation Agent for the benefit of members of Class 7 appointed in the Plan of
Reorganization in the bankruptcy proceeding In Re Couba Operating Company, Case
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No. 00-11837-WV, recorded in Entry No. 263437, COB 598, Page 322 of the public
records of St. Xxxxxxx Xxxxxx, Louisiana.
(m) NRI Arbitration. The term "NRI Arbitration" means the
arbitration proceedings commenced in In Re: Case Xx. 00000 X 00000,
XxxxxXxxxxxxx Xxxxxxxxx (XXX) Corp. v. American Natural Energy Corporation.
(n) ORI Conveyance. The term "ORI Conveyance" means that certain
Conveyance of Overriding Royalty Interest dated December 28, 2001, from ANEC to
the Liquidation Agent for the benefit of the members of Class 7 appointed in the
Plan of Reorganization in the bankruptcy proceeding In Re Couba Operating
Company, Case No. 00-11837-WV, recorded in Entry No. 263436, COB 598, Page 316
of the public records of St. Xxxxxxx Xxxxxx, Louisiana.
(o) Permitted Burdens. The term "Permitted Burdens" means (i) all
valid lessor royalties, (ii) an overriding royalty interest in favor of B&C Oil
Company created in Assignment recorded in Entry No. 181002, COB 474, Folio 548
of the public records of St. Xxxxxxx Xxxxxx, Louisiana, (iii) the term
overriding royalty interest created in the ORI Conveyance, and (iv) the net
profits interest created in the NPI Conveyance.
(p) Permitted Encumbrances. The term "Permitted Encumbrances" means:
(i) the Permitted Burdens; (ii) the Permitted Liens and Claims; (iii) the
Material Agreements (including, without limitation, the Mortgage) and all other
division orders and sales contracts covering oil, gas or associated liquid or
gaseous hydrocarbons; (iv) all federal and state regulatory orders and rules to
which the Assets are presently subject; (v) preferential rights to purchase and
required third-party consents to assignments and similar agreements with respect
to which (A) waivers or consents have been obtained from the appropriate
parties, or (B) notice has been given to the holders of such rights and the
appropriate time period for asserting such rights has expired without an
exercise of such rights; (vi) liens for taxes or assessments not due or not
delinquent at the Closing Date; (vii) all rights to consent by, required notices
to, filings with, or other actions by governmental entities in connection with
the sale or conveyance of oil and gas leases or interests therein if the same
are customarily obtained after such sale or conveyance; (viii) easements,
rights-of-way, servitudes, permits, surface leases, and other rights in respect
of surface operations, pipelines, grazing, logging, canals, ditches, reservoirs
or the like, and easements for streets, alleys, highways, pipelines, telephone
lines, power lines, railways, and other easements and rights-of-way, on, over,
or in respect of any of the Properties; (ix) liens of operators relating to
obligations not yet due or pursuant to which Sellers are not delinquent; (x) the
NRI Arbitration and the Interpleader Action; and (xi) title problems commonly
encountered in the oil and gas business which are not deemed to be material and
which would not be considered material by a reasonable and prudent person
engaged in the business of the ownership, development, and operation of oil and
gas properties with knowledge of all the facts and appreciation of their legal
significance.
(q) Permitted Liens and Claims. The term "Permitted Liens and
Claims" means, collectively, (i) the liens and privileges described as items (b)
through (d) and (f) through (m) of Comment 5, (ii) the lawsuits identified as
items (d) through (g) of Comment 6, and (iii) the liens and Claims related to
taxes assessed against xxxxx operated by ANEC described in Comment 7, in each
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case set forth in the Fourth Supplemental Leasehold Title Opinion (Limited),
Bayou Couba Field, St. Xxxxxxx Xxxxxx, Louisiana, dated October 18, 2006,
prepared by Beyt & Beyt and addressed to Buyer, insofar only as such liens,
privileges, and lawsuits encumber the Leases, the Lands, and/or the Xxxxx.
(r) Properties. The term "Properties" means:
(i) all of USA's rights, titles, and interests in and to the
lands in St. Xxxxxxx Xxxxxx, Louisiana described in Exhibit A-1 attached hereto
and incorporated herein by reference for all purposes (the "Lands"), including,
but not limited to, all of USA's rights, titles, and interests in and to those
oil, gas and mineral leases described in Exhibit A-2, whether one (1) or more
(the "Leases"), and in and to all xxxxx located on the Lands or Leases,
including, but not limited to, those xxxxx described in Exhibit A-3 (the
"Xxxxx"), and all contingent, reversionary and carried interests relating to any
of the foregoing, and all other rights therein (such properties, rights, and
interests being sold hereunder are hereinafter collectively called the "Oil and
Gas Interests"); and
(ii) all of the properties, rights, and interests incident to
the Oil and Gas Interests, including, without limitation: (1) all presently
existing and valid unitization and pooling declarations, agreements, and/or
orders and the properties included in the units created thereby (including all
units formed under orders, regulations, rules, or other official acts of any
federal, state or other governmental agency having jurisdiction) relating to or
affecting the Oil and Gas Interests; (2) all well and leasehold equipment,
gathering systems, processing plants, improvements, machinery, equipment,
supplies, goods, fixtures, and other personal property located on or used in
connection with any of the Oil and Gas Interests; (3) all presently existing oil
or gas operating, pooling, unitization, purchase, sales, exchange, treatment,
gathering, transportation, processing, and other contracts, agreements, and
instruments relating to any of the Oil and Gas Interests, including, but not
limited to, those contracts, agreements, and instruments described in Exhibit
A-4 (the "Material Agreements"); and (4) all permits, franchises, licenses,
options, servitudes, leases, water leases, surface rights, easements, and
rights-of-way pertaining to the Oil and Gas Interests.
(s) Retained Claims. The term "Retained Claims" means, collectively:
(i) all Claims and/or rights to recovery of USA against ANEC with respect to the
quantum of the net revenue interest in the Oil and Gas Interests conveyed by
ANEC to USA pursuant to the USA-ANEC Exploration Agreement, which Claims are the
subject of the NRI Arbitration, insofar only as such Claims and rights to
recovery affect and pertain to the period prior to the Effective Date; and (ii)
all Claims and/or rights to recovery of USA arising out of or pursuant to the
Interpleader Action , insofar only as such Claims and rights to recovery affect
and pertain to the period prior to the Effective Date.
(t) USA-ANEC Exploration Agreement. The term "USA-ANEC Exploration
Agreement" means the Purchase and Exploration Agreement dated as of March 10,
2003, between American Natural Energy Corporation, as Seller, and TransAtlantic
Petroleum (USA) Corp., as Buyer.
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2. Purchase Price. The base purchase price for the Assets shall be Two
Million and No/100 Dollars ($2,000,000.00) (the "Base Purchase Price"), in
currency of the United States, which, subject to the adjustments made as
provided in Sections 2(a) and 2(b), shall be paid at the Closing as provided in
Section 16(b)(iv). No portion of the Base Purchase Price is intended to
constitute the payment of any accrued or past due interest on the Debentures.
(a) The Base Purchase Price shall be adjusted upward by the
following:
(i) the amount of the value of all merchantable crude oil
produced from or allocable to the Properties existing in pipelines, storage
tanks, or other processing or storage facilities upstream of the delivery points
to the relevant purchasers as of the Effective Date, the value to be based on
the contract price applicable to such crude oil in effect as of the Effective
Date (or the market value, if there is no contract price, in effect as of the
Effective Date), less amounts payable as royalties, overriding royalties, and
other burdens upon such crude oil and severance and other taxes deducted by the
purchaser of such crude oil;
(ii) the amount of all direct capital, operating, and other
expenditures and costs and all prepaid costs and expenses attributable to the
Properties (exclusive of ad valorem, property, severance, first use, and similar
taxes) incurred and actually paid by or on behalf of Sellers in the ordinary
course of owning and operating the Properties that are attributable to the
period from the Effective Date through the Closing Date, including, without
limitation, (A) royalties, overriding royalties, and other similar burdens on
production, (B) rentals, shut-in well payments, and other lease maintenance
payments made under the terms of the Leases, (C) the direct overhead and other
charges and expenses billed to Sellers by the operator or operators of the
Properties under applicable operating agreements, and (D) premiums paid by
Sellers with respect to any policy of insurance or indemnity or any surety bond
directly related to the Properties and allocable to the period from the
Effective Date through the Closing Date, but exclusive of the general,
administrative, and office overhead expenses of Sellers;
(iii) any increase required as the result of the proration of
taxes under Section 20(f); and
(iv) the amount of the value of any production, pipeline,
storage, or other imbalance as to which either Seller is in an "under" position
as of the Effective Date, such value to be based, in each case, on the contract
price applicable to such oil or gas (or the market value, if there is no
contract price), determined as of the Effective Date.
(b) The Base Purchase Price shall be adjusted downward by: (i) the
proceeds received by Sellers from the sale of oil and gas produced from or
allocable to the Properties during the period from the Effective Date through
the Closing Date, less amounts payable as royalties, overriding royalties, and
other burdens upon such oil and gas and severance and other taxes deducted by
the purchaser of such oil or gas;
(ii) all other fees, rentals, proceeds from any permitted
sale, salvage, or other disposition, and other revenues pertaining to the
Properties that are attributable to, and were received by Sellers during, the
period from the Effective Date through the Closing Date;
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(iii) the amount of the value of any production, pipeline,
storage, or other imbalance as to which either Seller is in an "over" position
as of the Effective Date, as well as the amount of the value of any oil or gas
produced from or allocable to the Properties that third parties may otherwise be
entitled to receive out of Sellers' interest in the Properties after the
Effective Date without making full payment therefor at or after the time of
delivery as the result of a "take-or-pay", prepayment, forward sale, production
payment, deferred production, or similar arrangement in existence as of the
Effective Date, such value to be based, in each case, on the contract price
applicable to such oil or gas (or the market value, if there is no contract
price), determined as of the Effective Date;
(iv) any reduction required under the terms of Section 7;
(v) any reduction required under the terms of Section 20(e);
and
(vi) any reduction required as the result of the proration of
taxes under the terms of Section 20(f).
(c) The Base Purchase Price, as adjusted pursuant to Sections 2(a)
and 2(b), shall be referred to herein as the "Adjusted Purchase Price". All
adjustments to the Base Purchase Price provided for in Sections 2(a) and 2(b)
shall be determined without duplication and on an accrual basis, in accordance
with generally accepted accounting principles consistently applied.
3. Allocation of Purchase Price. The Base Purchase Price shall be
allocated among the Assets for financial accounting and tax purposes as set
forth in Exhibit A-5 in accordance with Section 1060 of the Internal Revenue
Code of 1986, as amended (the "Code"); provided, however, that Buyer and Sellers
shall use commercially reasonable efforts to agree, on or before the ninetieth
(90th) day after the Closing Date, to an amendment of Exhibit A-5 reflecting an
allocation of the Adjusted Purchase Price in a manner reasonably consistent
(except as to the aggregate amount allocated) with the original allocation of
the Base Purchase Price. Buyer and Sellers shall each file a Form 8594 (Asset
Acquisition Statement Under Section 1060) on a timely basis, reporting the
allocation of the Adjusted Purchase Price consistent with such allocation. Buyer
and Sellers shall file, on a timely basis, any amendments required to such Form
8594 as a result of a subsequent increase or decrease of the Adjusted Purchase
Price after the Closing Date. Buyer and Sellers shall not take any position on
their respective income tax returns that is inconsistent with the allocation of
the Adjusted Purchase Price as so agreed, or as adjusted as the result of any
subsequent increase or decrease in the Adjusted Purchase Price.
4. Effective Date. Except as provided hereinafter, title to the Properties
shall be transferred from USA to Buyer on the Closing Date, but effective as of
October 1, 2006, at 7:00 a.m., Dallas, Texas time (the "Effective Date"). As a
result: (a) all oil and gas produced from or allocable to the interests of
Sellers in the Properties and (i) existing in pipelines, storage tanks, or other
processing or storage facilities upstream of the delivery points to the relevant
purchasers as of the Effective Date, or (ii) produced on and after the Effective
Date, shall, in each case, belong to Buyer and constitute a part of the
Properties; and (b) all obligations and Liabilities of Sellers for the payment
of money with respect to the Properties (including, without limitation, the
payment of Sellers' share of all costs and expenses incurred in connection with
the Properties and the payment of Sellers' share of all royalties, overriding
royalties, and other similar burdens on production, as well as all rentals,
shut-in well payments, minimum royalties, and other lease maintenance payments
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under the terms of the Leases) for the period from and after the Effective Date
shall be the responsibility of Buyer and shall become Assumed Liabilities, as
defined in Section 20(b). Notwithstanding the foregoing, as of the Closing Date,
Sellers shall deliver to Buyer exclusive possession and control of the
Properties. Sellers agree to cooperate with Buyer to facilitate the transition
of the ownership of the Properties to Buyer. As between Sellers and Buyer, and
subject to the terms of this Agreement, Sellers, severally according to their
respective interests in the Properties and not jointly, shall assume and bear
all risk of loss associated with the Properties prior to the Closing Date, and
Buyer shall assume and bear all risk of loss associated with the Properties from
and after the Closing Date. The ownership of the Debentures shall be transferred
from TNP to Buyer at and as of the Closing Date.
5. [INTENTIONALLY OMITTED]
6. Operations Prior to Closing. Through the Effective Date, USA shall: (a)
obtain the prior written consent of Buyer as to all material decisions relating
to the Leases, including, without limitation, (i) any new contract or agreement
of any kind or character, relating in any way to the Properties or oil or gas
production therefrom or attributable thereto; (ii) proposed expenditures after
the date of execution of this Agreement relating in any way to the Properties in
an amount greater than U.S. $10,000.00 (net to USA's interest), except for
expenditures required for safety procedures or other emergencies; (iii) any
operation proposed by the operator of the Leases as to which USA has the right
to elect whether to participate under the applicable Material Contract(s); (iv)
the amendment, release, or abandonment of any Lease, or portion thereof, (v)
except for the matters set forth in Section 20(e), the waiver, compromise, or
settlement of any right or Claim pertaining to the Leases that affects the
Properties; and (vi) the initiation of any proceeding before any governmental
authority pertaining to the Leases; (b) perform all material obligations of USA
under the Leases, all Material Contracts, and all applicable permits; (c)
promptly notify Buyer of (i) any notice or threatened notice of which Sellers
become aware relating to any default, inquiry into any possible default, or
action to alter, terminate, rescind, repudiate, or procure a judicial
reformation of any Lease, any Material Contract, or any applicable permit, or
any provision thereof, (ii) any new suit, action, or other proceeding before any
court or governmental authority relating to the Leases that may affect the
Properties, and (iii) any other event, fact, or circumstance of which Sellers
acquire knowledge that may reasonably be expected to have a material effect on
the Properties or to impair materially the ability of Sellers to consummate the
transactions contemplated herein; (d) timely pay and discharge when due USA's
share of all costs and expenses incurred in connection with the Leases that are
invoiced to USA by the operator thereof; and (e) not mortgage, pledge, encumber,
dedicate, or sell, or agree to mortgage, pledge, encumber, dedicate, or sell,
any portion of the Properties, except for the disposition of oil and gas in the
ordinary course of USA's business.
7. Preferential Right to Purchase. USA and Buyer acknowledge that: (a)
each Well is subject to a joint operating agreement substantially in the form
attached to the Development Agreement as Exhibit B; and (b) pursuant to the
terms of each such joint operating agreement, each owner of an interest in the
oil and gas leasehold estate in the Well subject to such joint operating
agreement has a preferential right to purchase the interest of USA in such Well
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on the terms set forth therein. Promptly following the execution of this
Agreement, USA shall send to each holder of each such preferential right to
purchase such notice of the transaction contemplated herein as is required under
the terms of the relevant joint operating agreement, requesting the waiver of
such preferential right to purchase. If the holder of such a preferential right
to purchase exercises such right in a timely manner in accordance with the terms
of the relevant joint operating agreement with respect to one (1) or more Xxxxx,
the affected Xxxxx shall be excluded from the Properties conveyed to Buyer at
the Closing, the Base Purchase Price shall be reduced by the amount(s) of the
Allocated Value(s) of the affected Well(s), and USA shall be entitled to retain
all proceeds from the sale of the affected Xxxxx to the party exercising such
preferential right to purchase.
8. Consents to Assignment. USA and Buyer acknowledge that: (a) the consent
of ExxonMobil Corporation to the conveyance by USA to Buyer of the Properties
pursuant hereto is required under the terms of the Development Agreement; and
(b) the consent of ANEC to such conveyance is required under the terms of the
USA-ANEC Exploration Agreement. Promptly following the execution of this
Agreement, USA shall send to each party from whom a consent to assignment is
required such notice of the transaction contemplated herein as is required under
the terms of the Development Agreement or the USA-ANEC Exploration Agreement, as
applicable, requesting the required consent to assignment.
9. Publicity. Sellers and Buyer shall consult with each other with regard
to all press releases or other public or private announcements issued or made at
or after the date of execution hereof concerning this Agreement or the
transactions contemplated herein, and, except as may be required by applicable
laws or the applicable rules and regulations of any stock exchange, neither
Buyer nor either Seller shall issue any such press release or other publicity
without the prior written consent of the other party hereto, which shall not be
unreasonably withheld.
10. Mutual Assurances. Subject to the terms of this Agreement, each of
Sellers and Buyer will use reasonable commercial efforts to take, or to cause to
be taken, all actions and to do, or cause to be done, all things necessary,
proper, or advisable under applicable laws to consummate and make effective the
transactions contemplated by this Agreement, including: (a) cooperation in
determining whether any action, approval, or waiver by or in respect of, or
filing with, any governmental authority or third person is required in
connection with the consummation of the transactions contemplated by this
Agreement; (b) cooperation in seeking and obtaining any such actions, approvals,
waivers, or filings; and (c) the execution of any additional documents necessary
to consummate the transactions contemplated hereby.
11. Preliminary Settlement Statement. No later than three (3) business
days prior to the Closing Date, Sellers shall prepare and submit to Buyer a
preliminary settlement statement (the "Preliminary Settlement Statement"), which
sets forth Sellers' estimate of the Adjusted Purchase Price, reflecting each
adjustment and proration and its method of calculation made in accordance with
this Agreement as of the date of preparation of such Preliminary Settlement
Statement, together with the designation of Sellers' account(s) for the wire
transfer of such estimated Adjusted Purchase Price pursuant to Section
16(b)(iv).
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12. Conditions Precedent to Sellers' Obligation to Close. All obligations
of Sellers under this Agreement are subject, at Sellers' option, to the
fulfillment, on or prior to the Closing Date, of each of the following
conditions:
(a) each and every representation and warranty of Buyer under this
Agreement shall be true and accurate in all material respects as of the date
when made and shall be deemed to be made again at and as of the Closing Date and
shall then be true and accurate in all material respects;
(b) Buyer shall have performed and complied in all material respects
with each and every covenant, agreement, and condition required by this
Agreement to be performed or complied with, executed and/or delivered all
documents required to be executed and/or delivered, and otherwise taken all
actions required to be taken, in each case by Buyer on or prior to the Closing
Date;
(c) no suit, action, or other proceeding shall be pending or
threatened before any court or arbitration tribunal or any governmental
authority seeking to enjoin, restrain, prohibit, or declare illegal, or seeking
substantial damages in connection with, the transactions contemplated in this
Agreement; and
(d) Buyer shall have received all consents, authorizations, waivers,
and approvals required to be obtained prior to the Closing by any court or
governmental authority under any applicable law concerning the transactions
contemplated herein.
13. Conditions Precedent to Buyer's Obligation to Close. All obligations
of Buyer under this Agreement are subject, at Buyer's option, to the
fulfillment, on or prior to the Closing Date, of each of the following
conditions:
(a) each and every representation and warranty of each Seller under
this Agreement shall be true and accurate in all material respects as of the
date when made and shall be deemed to be made again at and as of the Closing
Date and shall then be true and accurate in all material respects;
(b) each Seller shall have performed and complied in all material
respects with each and every covenant, agreement, and condition required by this
Agreement to be performed or complied with by it, executed and/or delivered all
documents required to be executed and/or delivered by it, and otherwise taken
all actions required to be taken, in each case by each Seller on or prior to the
Closing Date;
(c) no suit, action, or other proceeding shall be pending or
threatened before any court or arbitration tribunal or any governmental
authority seeking to restrain, prohibit, or declare illegal, or seeking
substantial damages in connection with, the transactions contemplated in this
Agreement;
(d) each Seller shall have received all consents, authorizations,
waivers, and approvals required to be obtained by such Seller prior to the
Closing by any court or governmental authority under any applicable law
concerning the transactions contemplated herein;
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(e) Sellers shall have delivered to Buyer releases of all liens,
security interests, and other encumbrances encumbering the Assets that do not
constitute Permitted Encumbrances;
(f) Sellers shall have obtained and delivered to Buyer all consents
to assignment required to be obtained from third persons prior to the Closing as
the result of the transactions contemplated in this Agreement, including,
without limitation, the consents to assignment referred to in Section 8; and
(g) with respect to each holder of a preferential right to purchase
burdening the Properties, either (i) Seller shall have obtained from such holder
and delivered to Buyer a written response to the notice sent by USA to such
holder pursuant to Section 7, which response indicates such holder's waiver, or
his or her election to exercise, such preferential right to purchase, or (ii)
the time period within which such holder must assert his or her preferential
right to purchase has expired without the exercise of such right.
14. Termination. This Agreement may be terminated, and the transactions
contemplated herein may be abandoned, at any time prior to the Closing:
(a) by Sellers, at Sellers' option, if (i) the Closing does not
occur because all of the conditions applicable to Buyer set forth above in
Section 12 were not satisfied as provided therein or waived by Seller on or
before December 28, 2006, and (ii) each Seller has satisfied all of the
conditions applicable to such Seller set forth above in Section 13 on or before
December 28, 2006;
(b) by Buyer, at Buyer's option, if (i) the Closing does not occur
because all of the conditions applicable to Sellers set forth above in Section
13 were not satisfied as provided therein or waived by Buyer on or before
December 28, 2006, and (ii) Buyer has satisfied all of the conditions applicable
to Buyer set forth above in Section 12 on or before December 28, 2006;
(c) by Buyer, at Buyer's option, if, on or before the Closing Date,
Buyer is unable to resolve and obtain full releases of all liens and privileges,
and settlements dismissing with prejudice all of the lawsuits, collectively
comprising the Permitted Liens and Claims;
(d) by Buyer, at Buyer's option, if one (1) or more holders of
preferential purchase rights burdening the Properties exercises such right with
respect to Xxxxx for which the Allocated Values exceed, in the aggregate,
$500,000.00; and
(e) by Buyer, at Buyer's option, if Buyer's lender, in its sole
discretion and based on the title examination of the Leases conducted by Buyer
in connection with the transactions contemplated herein, does not approve the
title to the Properties for purposes of funding Buyer's acquisition thereof for
reasons other than those stated in, respectively, Section 14(c) and Section
14(d).
15. Remedies. If Sellers terminate this Agreement pursuant to Section
14(a) as the result of Buyer's failure to satisfy either of the conditions
stated in Section 12(a) or Section 12(b), or if Buyer terminates this Agreement
pursuant to Section 14(c), Buyer shall pay to Sellers, within five (5) business
days after such termination of this Agreement by Sellers, the sum of $200,000.00
as liquidated damages. Sellers and Buyer acknowledge that such amount represents
10
a good faith reasonable estimate of the costs to Sellers of selling the Assets,
that the extent of the damages to Sellers caused by the failure of the
transactions contemplated herein to close would be extremely difficult to
ascertain, and that the payment of such amount by Buyer to Sellers does not
constitute a penalty. Buyer's payment of such amount to Sellers shall be the
sole and exclusive remedy of Sellers with respect to the failure of Buyer to
satisfy the conditions stated in Section 12(a) or 12(b), or Buyer's termination
of this Agreement pursuant to Section 14(c), as the case may be. If this
Agreement is otherwise terminated by either Sellers or Buyer pursuant to Section
14, neither party shall have any further liability to the other as the result of
such termination. Notwithstanding any such termination of this Agreement, the
provisions of this Section 15 and Section 22 shall survive such termination and
remain in full force and effect.
16. Closing.
(a) Subject to the satisfaction or waiver of the conditions set
forth in Sections 12 and 13, and unless Sellers and Buyer otherwise agree, the
Closing shall take place at the offices of Xxxxxxx Xxxxxx L.L.P., 0000 XxXxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 10:00 a.m., Central Standard Time, on the
fifth (5th) business day after the expiration of the notice and response period
applicable to the holders of the preferential purchase rights burdening the
Properties under the terms of the relevant joint operating agreements (the
"Closing Date").
(b) At the Closing, the following events shall occur, each being a
condition precedent to the others and each being deemed to have occurred
simultaneously with the others:
(i) USA shall cause the execution, acknowledgment and delivery
to Buyer of an assignment and conveyance (in sufficient counterparts to
facilitate recording), substantially in the form attached hereto as Exhibit B
and incorporated herein by reference for all purposes (the "Conveyance"),
conveying the Properties to Buyer;
(ii) TNP shall cause the execution and delivery to Buyer of a
transfer instrument, substantially in the form attached hereto as Exhibit C and
incorporated herein by reference for all purposes, transferring the Debentures
to Buyer;
(iii) Sellers and Buyer shall execute and deliver (1) the
Preliminary Settlement Statement, (2) releases of all liens and security
interests encumbering the Assets that do not constitute Permitted Encumbrances,
(3) transfer orders or letters in lieu thereof directing purchasers of
production to make payment to Buyer of production from the Oil and Gas Interests
from and after the Effective Date, and (4) all consents to assignment, waivers
or exercises of preferential purchase rights, and other similar matters
pertaining to the Assets obtained by Sellers before the Closing;
(iv) Buyer shall deliver the Adjusted Purchase Price to
Sellers in readily available funds;
(v) Sellers shall deliver to Buyer exclusive possession of the
Assets as contemplated in Section 4;
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(vi) USA shall provide to Buyer a statement that satisfies the
requirements of Treas. Reg. ss.1.1445-2(b)(2), certifying that USA is not a
"foreign" person for federal income tax purposes;
(vii) TNP shall provide to Buyer a completed Form W-8 BEN
(Certificate of Foreign Status of Beneficial Owner for United States Tax
Withholdings) for federal income tax purposes; and
(viii) Sellers and Buyer shall execute such other documents
and take such other actions as are provided for elsewhere in this Agreement or
as may be necessary to consummate the transactions contemplated herein.
17. Records. At any time after the Closing Date, pursuant to Buyer's
reasonable instructions, Sellers shall deliver to Buyer all files, records
(including, without limitation, land and title records, plats, surveys,
abstracts of title, title insurance policies, title opinions, and title
curative, lease, contract, division order, marketing, correspondence,
operations, environmental, insurance, production, accounting, regulatory, and
well records and files), and other information that relate in any way to the
Assets (the "Records"). Buyer shall be entitled to all original Records
affecting all of the Assets. Sellers may make and retain, at their expense,
copies of the Records prior to the delivery thereof to Buyer. Buyer agrees to
maintain all Records until the seventh (7th) anniversary of the Closing Date (or
such longer period of time as Sellers may request for tax audit purposes), or,
if any of such Records pertain to a Claim pending at such seventh anniversary
date, until such Claim is finally resolved and the time for all appeals has been
exhausted. Buyer will provide to Sellers reasonable access to the Records for
purposes of obtaining information for the preparation of tax returns, financial
statements, and other legitimate business purposes of Sellers.
18. Sellers' Representations. Each Seller, severally according to its
ownership of the Assets and not jointly, represents and warrants to Buyer that:
(a) USA is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Colorado and is qualified to do
business as a foreign corporation and is in good standing in the State of
Louisiana. TNP is a corporation duly organized, validly existing, and in good
standing under the laws of the Province of Alberta and is qualified to do
business and in good standing in each jurisdiction (if any) where the ownership
of the Debentures makes such qualification necessary;
(b) it has the requisite power and authority to enter into and
perform this Agreement and the transactions contemplated by this Agreement;
(c) the execution, delivery, and performance by each Seller of this
Agreement has been duly and validly authorized and approved by all necessary
corporate action on the part of each Seller, and this Agreement and the
documents executed in connection herewith are, or upon their execution and
delivery will be, the valid and binding obligations of each Seller and
enforceable against each Seller in accordance with their terms, subject to the
effects of bankruptcy, insolvency, reorganization, moratorium, and similar laws,
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as well as to principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(d) to its knowledge, it is not in default under or in violation of
any law, order, writ, injunction, rule, regulation or decree of any governmental
body, agency or court or of any commission or other administrative agency that
in any way could substantially impact the Assets owned by it or the consummation
of the transactions contemplated by this Agreement or any material agreement or
obligation relating to the Assets owned by it;
(e) except for approvals of governmental authorities customarily
obtained after the Closing Date, no authorization, consent, approval, exemption,
franchise, permit, or license of, or filing with, any governmental authority is
required to authorize, or is otherwise required in connection with, the valid
execution and delivery by Sellers of this Agreement, the transfer of the Assets
to Buyer, or the performance by Sellers of their obligations hereunder;
(f) it is duly qualified to own the Assets as presently owned by it;
(g) it has not burdened the Properties with any lien or encumbrance,
except for Permitted Encumbrances;
(h) except as set forth on Exhibit A-6, no suit, action or other
proceeding (including, without limitation, tax, environmental or development
demands proceedings) is pending, or to the best of its knowledge threatened,
that might result in impairment or loss of title to, or otherwise have a
material adverse effect on, any of the Assets owned by it or the value thereof
or its ability to consummate the transactions contemplated in this Agreement;
(i) it has not filed any federal or state income tax returns
identifying any Assets owned by it as held by any tax partnership;
(j) all contracts and agreements burdening or relating to the Assets
to which either Seller is a party are described on Exhibit A-4, and there are no
other contracts or agreements to which either Seller is a party or by which
either Seller is bound that affect or relate in any way to the Assets;
(k) except as set forth on Exhibit A-6, no party is entitled to a
right of first refusal, right of first offer, or preferential right to purchase
any of the Properties;
(l) except as set forth on Exhibit A-6, there is no third party
consent to assignment requirement, waiver, or other prior action by any third
party required in connection with the conveyance of the Properties to Buyer or
the consummation of the transactions contemplated in this Agreement;
(m) except as set forth on Exhibit A-6, the Properties are not
subject to any area of mutual interest, maintenance of uniform interest, "before
payout" or "after payout" reversion or conversion, or other covenant binding on
USA and under which Buyer may be obligated to make assignments of interests in
the Properties to third parties after the Closing Date;
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(n) except as set forth on Exhibit A-6, there are no operations
involving any of the Properties as to which USA has become a non-consenting
party;
(o) neither Seller has received any invoice or charge for labor or
materials incurred by or on behalf of USA incident to the Properties
attributable to the period prior to the Effective Date that is unpaid as of the
Closing Date;
(p) to its knowledge, except for ad valorem and similar taxes to be
prorated between Sellers and Buyer as provided in Section 20(f), all ad valorem,
property, severance, first use, and other similar taxes imposed or assessed with
respect to, measured by, charged against, or attributable to the Properties, or
the ownership thereof, or the production, gathering, treatment, processing, and
transportation of oil and gas therefrom that became due and payable for the
period prior to the Effective Date have been paid;
(q) except as set forth on Exhibit A-6, there are no calls on
production, options to purchase, or similar rights in effect with respect to
USA's share of production from the Properties;
(r) to its knowledge, there exist no production, pipeline, storage,
or other imbalances, or any obligations by virtue of any "take-or-pay",
production payment, forward sale, deferred production, or similar arrangements,
in each case in existence as of the Closing Date and binding on USA that may
obligate Buyer to deliver oil or gas produced from the Properties at some future
time without receiving full payment therefor at the time of delivery or to make
payment to any third person with respect thereto;
(s) TNP owns, beneficially and of record, the Debentures, free and
clear of all liens, security interests, encumbrances, equities, proxies,
options, or restrictions (including, without limitation, any third party consent
to assignment requirement or other restriction on transferability, except for
the requirements relating to transfers set forth in that certain Trust Indenture
dated as of October 8, 2003, between ANEC and Computershare Trust Company of
Canada, as amended and restated as of June 29, 2005);
(t) to the knowledge of TNP, the Debentures were duly authorized and
validly issued, are in full force and effect, and are enforceable against ANEC
in accordance with their terms, subject to the effects of bankruptcy,
insolvency, reorganization, moratorium, and similar laws, as well as to
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(u) to the knowledge of TNP, the Mortgage creates a valid, first
priority mortgage lien and a first priority perfected security interest in the
property of ANEC described as collateral therein.
19. Buyer's Representations. Buyer represents and warrants to Sellers that
(a) Buyer is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware;
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(b) Buyer has the requisite power and authority to enter into and
perform this Agreement and the transactions contemplated by this Agreement;
(c) the execution, delivery, and performance by Buyer of this
Agreement has been duly and validly authorized and approved by all necessary
corporate action on the part of Buyer, and this Agreement and the documents
executed in connection herewith are, or upon their execution and delivery will
be, the valid and binding obligations of Buyer and enforceable against Buyer in
accordance with their terms, subject to the effects of bankruptcy, insolvency,
reorganization, moratorium, and similar laws, as well as to principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(d) Buyer is not in default under or in violation of any law, order,
writ, injunction, rule, regulation or decree of any governmental body, agency,
or court or of any commission or other administrative agency that in any way
could substantially impact Buyer or the consummation of the transactions
contemplated by this Agreement or any material agreement or obligation relating
to Buyer;
(e) except for approvals of governmental authorities customarily
obtained after the Closing Date, no authorization, consent, approval, exemption,
franchise, permit, or license of, or filing with, any governmental authority is
required to authorize, or is otherwise required in connection with, the valid
execution and delivery by Buyer of this Agreement or the performance by Buyer of
its obligations hereunder; and
(f) the Assets to be acquired by Buyer hereunder are being acquired
by Buyer for its own account and not for distribution in violation of applicable
securities laws.
20. Additional Agreements.
(a) Sellers execute this Agreement with full substitution and
subrogation of Buyer in and to all covenants and warranties of every kind and
character of Sellers' predecessors in title to the Assets (including, without
limitation, all representations and warranties of ANEC in favor of USA under the
terms of the USA-ANEC Exploration Agreement) and with full subrogation of all
rights accruing under the statutes of limitation or prescription applicable to
the Assets and all rights of action of warranty against all former owners of the
Assets (including, without limitation, ANEC).
(b) Except as provided in Sections 4 and 20(e), Buyer hereby assumes
any and all obligations and Liabilities arising out of or relating to the
Assets, including, but not limited to, all obligations to plug and abandon the
Xxxxx and any other xxxxx associated with or included as part of the Properties
and all Liabilities of the owner of the Oil and Gas Interests arising out of or
resulting from the Interpleader Action, in all cases insofar only as such
Liabilities are attributable to the period on and after the Effective Date. All
such assumed obligations and Liabilities (including, without limitation, those
referred to in Sections 4 and 20(e)) are hereinafter referred to as the "Assumed
Liabilities".
(c) On or before ninety (90) days after the Closing Date, Sellers
will prepare a final accounting statement, subject to verification by Buyer,
which sets forth the final calculation and amount of the Adjusted Purchase Price
(including all adjustments thereto) in accordance with Sections 2(a) and 2(b),
15
the calculations used to determine such amounts, and the actual proration of all
other amounts required by this Agreement (the "Final Settlement Statement"). No
later than fifteen (15) days after Buyer's receipt of the Final Settlement
Statement from Sellers (but no earlier than ninety (90) days after the Closing
Date), Buyer shall deliver to Sellers written notice setting forth any changes
to the Final Settlement proposed by Buyer. On or before fifteen (15) days after
Sellers' receipt of Buyer's proposed changes to the Final Settlement Statement,
Buyer and Sellers shall agree on the Final Settlement Statement and, as the case
may be, shall pay to the other such sums as may be found to be due in the final
accounting. All amounts paid pursuant to this Section 20(c) shall be delivered
by wire transfer of immediately available U.S. funds to the account specified in
writing by the relevant Party.
(d) If a Property is subject to a preferential right to purchase,
right of first refusal, right of first offer, or similar right that has not been
exercised as of the Closing Date, and, after such Property is transferred to
Buyer on the Closing Date, such preferential right to purchase or similar right
is successfully exercised by the holder thereof, Buyer shall be entitled to
receive all proceeds paid for the affected Property by the holder of the
relevant preferential right to purchase or similar right.
(e) Subject to the terms of this Agreement, USA excepts, reserves,
and retains to itself the Retained Claims. Buyer is aware of the Retained Claim
of USA against ANEC regarding the quantum of the net revenue interest in the Oil
and Gas Properties conveyed by ANEC to USA pursuant to the USA-ANEC Exploration
Agreement that is the subject matter of the NRI Arbitration. On or prior to the
Closing Date, USA shall dismiss the NRI Arbitration without prejudice. USA
agrees that any settlement between USA and ANEC shall expressly provide that
Buyer shall retain, as an Assigned Claim, the Claims against and rights to
recovery from ANEC regarding the quantum of the net revenue interest in the Oil
and Gas Properties conveyed by ANEC to USA pursuant to the USA-ANEC Exploration
Agreement insofar only as such Claims and rights to recovery affect and pertain
to the period on and after the Effective Date. Buyer is also aware that USA and
ANEC are named as co-defendants in the Interpleader Action. Pursuant to the
Interpleader Action, Teppco Crude Oil, L.P. ("Teppco"), the purchaser of crude
oil produced from the Oil and Gas Interests has tendered into the registry of
the court certain funds attributable to its purchase of crude oil from the Oil
and Gas Interests. USA shall remain responsible and liable for all Liabilities
of USA related to the Claims of Teppco that are the subject matter of the
Interpleader Action, insofar only as such Liabilities relate to the period prior
to the Effective Date (the "Retained Liabilities"). On or prior to the Closing
Date, USA shall execute the form of Teppco Division Order to resolve the Claims
of Teppco against USA. USA agrees that any settlement between USA and ANEC shall
expressly provide that the execution of the Teppco Division Order shall not
constitute an admission or evidence as to the correctness of the net revenue
interests for the Oil and Gas Interests as set out in the Teppco Division Order
with respect to the Assigned Claims. Upon the release of funds by the Court in
the Interpleader Action, any revenues interpled in the Interpleader Action
attributable the Oil and Gas Interests for the period prior to the Effective
Date shall be paid to USA (or paid to Buyer who in turn will immediately remit
such funds to USA), and any portion of such funds that are attributable to the
Oil and Gas Interests for the period on and after the Effective Date shall be
payable to Buyer. Any such payment to Buyer shall be reflected as a reduction of
the Base Purchase Price.
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(f) All ad valorem, property and other similar taxes applicable to
the Properties will be prorated as of the Effective Date (based upon the amount
of the prior year's taxes), and the Base Purchase Price shall be adjusted by the
amount of such taxes attributable to the periods of time prior to, and on and
after, the Effective Date.
21. Indemnification and Release.
(a) Buyer shall protect, defend, indemnify and hold Seller harmless
from the payment of any judgments (including interest), claims, costs, expenses
and liabilities, direct, contingent or otherwise ("Damages"), assessed against
Sellers (or either of them) that arise out of, relate to, or are attributable to
the Assumed Liabilities.
(b) USA shall protect, defend, indemnify, and hold Buyer harmless
from any Damages asserted against Buyer that arise out of, relate to, or are
attributable to the Retained Liabilities.
(c) Buyer hereby discharges and releases Sellers from any and all
claims for Damages that Buyer now has, may have had, or in the future has
against Seller (or either of them) that arise out of, relate to or are
attributable to all or any part of the Assumed Liabilities.
(d) Sellers hereby discharge and release Buyer from any and all
claims for Damages that Sellers now have, may have had, or in the future may
have against Buyer that arise out of, relate to or are attributable to all or
any part of the Retained Liabilities.
22. Limitation on Damages. For the breach or non-performance by any party
of any representation, warranty, covenant, or agreement contained in this
Agreement, the liability of the obligor shall be limited to direct actual
damages only, except to the extent that the obligee is entitled to specific
performance or injunctive relief. AS BETWEEN THE PARTIES, NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER SELLERS NOR BUYER SHALL BE
LIABLE TO THE OTHER PARTY AS THE RESULT OF A BREACH OR A VIOLATION OF ANY
REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, OR CONDITION CONTAINED IN THIS
AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR
INDIRECT DAMAGES, LOST PROFITS, OR OTHER BUSINESS INTERRUPTION DAMAGES, IN TORT,
IN CONTRACT, UNDER ANY INDEMNITY PROVISION, ARISING BY OPERATION OF LAW
(INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY), OR OTHERWISE. WITH RESPECT TO
CLAIMS BY THIRD PERSONS, A PARTY MAY RECOVER FROM THE OTHER PARTY ALL COSTS,
EXPENSES, OR DAMAGES (INCLUDING, WITHOUT LIMITATION, SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES), LOST PROFITS, AND OTHER
BUSINESS INTERRUPTION DAMAGES IN ADDITION TO ACTUAL DIRECT DAMAGES PAID OR OWED
TO ANY SUCH THIRD PERSON IN SETTLEMENT OR SATISFACTION OF CLAIMS AS TO WHICH THE
RELEVANT PARTY IS ENTITLED TO INDEMNIFICATION HEREUNDER.
17
23. Further Assurances. Sellers and Buyer shall timely execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and take such other actions as reasonably may be necessary or
advisable to evidence and effectuate the transfer of titles hereunder, and to
carry out their respective obligations under this Agreement and under any
document, certificate or other instrument delivered pursuant thereto.
24. Survival. All representations, warranties, covenants, agreements, and
indemnities of Sellers and Buyer under this Agreement shall survive the
consummation of the transactions contemplated herein and the delivery of the
Conveyance, shall not be merged with or into the Conveyance, and shall remain in
effect as provided herein.
25. Notices. All notices and communications required or permitted under
this Agreement shall be in writing, and any communication or delivery hereunder
shall be deemed to have been duly made when personally delivered to, or when a
telecopy has been received at, the address indicated below; or if mailed, when
received by the party charged with such notice and addressed as follows:
If to Sellers: If to Buyer:
TransAtlantic Petroleum Corp. Dune Energy, Inc.
TransAtlantic Petroleum (USA) Corp. 0000 Xxxx Xxx Xxxx., Xxxxx 000
0000 X. Xxxxxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 00000
Suite 1755 Attention: Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000 Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx Telephone: (000) 000-0000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Any party may, by written notice so delivered to the other, change the address
to which delivery to such party shall thereafter be made.
26. No Brokers. Each of the parties represents and warrants to the other
that it has not made any arrangement or in any way incurred any liability for a
finder's fee or any other remuneration to a broker, finder or agent whereby the
other party hereto might become liable for any such fee or other remuneration,
and if any such fee or any remuneration becomes payable by any party hereto as a
result of any arrangements made by the other party, the party which has made
such arrangement agrees to protect, defend, indemnify and hold harmless the
other party hereto to the full extent of such liability.
27. Amendments. This Agreement may not be amended nor any rights hereunder
waived except by an instrument in writing signed by the party to be charged with
such amendment or waiver and delivered by such party to the party claiming the
benefit of such amendment or waiver.
18
28. Assignment. Neither party may assign all or any portion of its rights
or delegate all or any portion of its duties under this Agreement without the
express written consent of the other party.
29. Headings. The headings of the paragraphs of this Agreement are for
guidance and convenience of reference only and shall not limit or otherwise
affect any of the terms or provisions of this Agreement.
30. Counterparts. This Agreement may be executed by Buyer and Sellers in
counterparts, each of which shall be deemed an original instrument but all of
which together shall constitute but one and the same instrument.
31. Governing Law. This Agreement and the transactions contemplated hereby
shall be construed in accordance with and governed by the laws of the State of
Texas, without regard to its conflict of laws rules.
32. Entire Agreement. This Agreement (including the exhibits hereto)
constitutes the entire understanding between the parties with respect to the
Lands, Leases, Xxxxx, and Properties, superseding and terminating all
negotiations, prior discussions and prior agreements and understandings relating
to such Lands, Leases, Xxxxx, and Properties, including without limitation that
certain letter of intent dated August 4, 2006, between Sellers and Buyer.
33. Parties in Interest. This Agreement and all its terms, provisions,
conditions, covenants and warranties shall be binding upon and shall inure to
the benefit of the parties hereto, and subject to Section 18, their respective
successors and assigns. Nothing contained in this Agreement, express or implied,
is intended to confer upon any other person or entity any benefits, rights or
remedies.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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TRANSATLANTIC PETROLEUM CORP.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, President
TRANSATLANTIC PETROLEUM (USA) CORP.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, President
DUNE ENERGY, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Dr. Xxxxx Xxxxx, President
20
