SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) - February 3, 1998
FOREST OIL CORPORATION
(Exact name of registrant as specified in its charter)
New York 0-4597 25-0484900
(State or other juris- (Commission (IRS Employer
diction of incorporation) file number) Identification No.)
2200 Colorado State Bank Building, 1600 Broadway, Denver, CO 80202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 812-1400
Item 2. Acquisition or Disposition of Assets
On February 3, 1998, Forest Oil Corporation (the
"Company") completed the acquisition of 13 oil and natural gas
properties located onshore Louisiana. Total consideration of
approximately $231 million included $216.7 million cash and one
million shares of the Company's common stock. The properties
were acquired from LLOG Exploration Company ("LLOG") and its
related entities. The Company financed the acquisition with the
net proceeds from the sale of $75 million of the Company's 8 3/4%
Senior Subordinated Notes due 2007, 1998 Series and borrowings
under the Company's Credit Facility, the agent of which is The
Chase Manhattan Bank.
Item 7. Financial Statements and Exhibits
(a) & (b)
Financial statements required to be filed as exhibits
to this Form 8-K will be filed with a Form 8-K/A on or before
March 31, 1998.
(c) Exhibits
( 2.1) Purchase and Sale Agreement between LLOG
Exploration Company and Forest Oil Corporation dated
January 7, 1998.
(99.1) Forest Oil Corporation press release
announcing the closing of the previously announced
purchase of 13 oil and natural gas properties located
onshore Louisiana.
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
FOREST OIL CORPORATION
(Registrant)
Dated: February 11, 1998 By: /s/ Daniel L. McNamara
Daniel L. McNamara
Secretary
FOR IMMEDIATE RELEASE
FOREST OIL COMPLETES LOUISIANA ACQUISITION AND
REPORTS ON DEEP WATER DRILLING
DENVER, COLORADO - FEBRUARY 3, 1998 - Forest Oil Corporation
(NYSE:FST) reported today that it has closed the previously
announced purchase of 13 oil and natural gas properties located
onshore Louisiana. Total consideration of approximately $231
million included $216.7 million cash and one million Forest Oil
common shares. The properties purchased have estimated proved
reserves of approximately 110 billion cubic feet of natural gas and
12.7 million barrels of oil or 186 billion cubic feet equivalent.
The seller was a private company.
In connection with the closing of this transaction, Forest has
entered into certain NYMEX price hedges which locked in an average
price of $2.315 per mmbtu for the period March through September
1998. This hedge is for production volumes of 20,000 mmbtu per day
from the purchased properties.
Robert S. Boswell, Forest's president and chief executive officer,
commented, "This is an important acquisition for Forest Oil. We
expect the wells to increase our daily net production by about 50
million cubic feet equivalent. We are undertaking a thorough 3D
evaluation of deep prospects to further evaluate exploration
potential. The positive impact of this acquisition will be felt
for many years."
Deep Water Drilling
Forest also reported on the first two wells drilled by the company
in the deep water of the Gulf of Mexico on East Breaks Block 164.
Based on logs, the East Breaks 164 #1 encountered approximately 116
feet of net pay. The well was drilled to a true vertical depth
(tvd) of 4,484 feet in December 1997 and, after production casing
was run, was temporarily abandoned. The East Breaks 164 #2 well,
which was drilled to 4,700 feet tvd to test a separate fault block,
encountered an aggregate approximately 76 feet of net pay. The #2
well has also been cased and was temporarily abandoned. The two
wells are located in water depths of 860 feet and 508 feet,
respectively. Forest (50% working interest) and its partner,
Newfield Exploration Company (NYSE: NFX, 50% working interest), are
evaluating development alternatives for these wells. Forest is
operator of the block.
Forest Oil Corporation is engaged in the acquisition, exploration,
development, production and marketing of natural gas and crude oil
in North America. Forest's principal reserves and producing
properties are located in the Gulf of Mexico, Texas, Oklahoma,
Wyoming and Canada. Forest's common stock trades on the New York
Stock Exchange under the symbol FST.
February 3, 1998
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, dated January 7, 1998, is by and between
LLOG EXPLORATION COMPANY, a Louisiana corporation, 433 Metairie
Road, Suite 600, Metairie, Louisiana 70005, hereinafter referred
to as "Seller" and FOREST OIL CORPORATION, a New York
corporation, 1600 Broadway, Suite 2200, Denver, Colorado 80202,
hereinafter referred to as "Buyer."
WITNESSETH:
That Seller desires to sell to Buyer and Buyer desires to
purchase from Seller, on the terms set forth in this Purchase and
Sale Agreement (the "Agreement"), all of Seller's right, title
and interest in and to those certain oil and gas working
interests and associated assets as identified and specified in
the exhibits attached hereto and made part hereof, hereinafter
referred to, collectively, as the "Assets." Therefore, in
consideration of the mutual promises contained herein, the
benefits to be derived by each party hereunder, as well as other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Buyer and Seller agree as follows:
ARTICLE I.
PURCHASE AND SALE
1.01 Purchase and Sale of Assets. Subject to the terms
and conditions of this Agreement, Seller offers and agrees
to sell, and Buyer offers and agrees to purchase, as of
the Effective Date hereinbelow defined, save and except
the "Assets Excluded" as set forth in Article 1.02,
herein, all of Seller's right, title and interest in and
to the following Assets, to-wit:
(a) the oil, gas and mineral leases described
in Exhibit "A," attached hereto (the "Leases"),
including the working interests ("WI") and net
revenue interests ("NRI") described in Exhibit "A"
and, with respect to the said Leases, the oil and/or
gas wells located thereon, including those described
in said Exhibit "A" (the "Wells") along with all
other right, title and interest of Seller in and to
said Wells and in and to the associated leasehold;
(b) Except to the extent as may be limited by
the leasehold rights set forth above, all of Seller's
rights, privileges, benefits and powers conferred
upon Seller, as the holder of any Lease, with respect
to the use and occupation of the surface of, as well
as the subsurface depths under, the lands covered by
such Lease that may be necessary or useful to the
possession and enjoyment of such Lease; except to the
extent as may be limited by the leasehold rights set
forth above, all of Seller's rights in any pools or
units which include all or any part of any Lease or
any Well (the "Units"), including Seller's right,
title and interest in production from any Unit,
regardless of whether such Unit production is derived
from wells located on or off a Lease and Seller's
right, title and interest in any wells within any
such unit;
(c) To the extent assignable, all of Seller's
right, title and interest in and to surface or
subsurface use agreements, authorizations, permits
and similar rights and interests applicable to, or
used or useful in connection with, any or all of the
Wells, Leases, and Units;
(d) To the extent assignable, all of Seller's
right, title and interest in and to permits, seismic
permits, servitudes, easements, rights-of-way,
orders, lease agreements, royalty agreements,
assignments, gas purchase and sale contracts, oil
purchase and sale agreements, farmin and farmout
agreements, transportation and marketing agreements,
operating agreements, unit agreements, processing
agreements, options, facilities or equipment leases
and other contracts, agreements and rights used, or
held for use, in connection with the ownership or
operation of the Assets, or with the production or
treatment of hydrocarbons from, or attributable to,
the Assets, including, without limitation, the
easements and other contracts described in Exhibit
"A," attached hereto, or the sale or disposal of
water, hydrocarbons or associated substances from the
Assets but excluding any such contracts, agreements
and rights where transfer of same is prohibited by
third party agreement or operation of law;
(e) All of Seller's right, title and interest
in and to all equipment, machinery, fixtures and
other real, personal and mixed property situated on
the Leases and/or used in the operation of the
Assets, including, without limitation, wells, salt
water disposal wells, well equipment, casing, rods,
tanks, boilers, buildings, tubing, pumps, motors,
fixtures, machinery, inventory, separators,
dehydrators, compressors, treaters, power lines,
field processing facilities, flowlines, gathering
lines, transmission lines and all other pipelines
(the "Equipment");
(f) All of Seller's right, title and interest
in effect and of record as of the Effective Date in
and to oil, condensate, natural gas in whatever form
and natural gas liquids produced after the Effective
Date, including "line fill" and inventory below the
pipeline connection in tanks, attributable to the
Wells, the Leases and Units; and
(g) Originals, or, if originals are
unavailable, clean and legible copies of, all of the
files, records, information and data respecting the
Assets in Seller's possession, including, without
limitation, title records, abstracts, title opinions,
title certificates, computer records, production
records, severance tax records, geological and
geophysical data and all other information relating
directly to the ownership or operation of the Assets
but exclusive of (i) any such records, data or
information where transfer of same is prohibited by
third party agreements or applicable law, as to which
Seller is unable to secure a waiver, (ii) the work
product of Seller's legal counsel, excluding title
opinions or other writings pertaining to title
matters, and (iii) records relating to the Sale and
Closing under this Agreement (collectively, the
"Records").
1.02 Assets Excluded. The Assets do not include the
following:
(a) Accounts receivable and payable associated
with the Assets and relating to operations conducted
or occurring prior to the Effective Date.
(b) Liquid hydrocarbon inventory in storage
tanks above the pipeline connection as of 7:00 a.m.
on the Effective Date.
ARTICLE II.
PURCHASE PRICE
2.01 Purchase Price. As consideration for the sale of the
Assets, subject to adjustments as provided for in Article
2.06, herein, Buyer shall pay or deliver to Seller at
Closing, as hereinafter defined in Article IX:
(a) CASH: Two Hundred Sixteen Million Seven
Hundred Thousand and No/100 ($216,700,000.00) Dollars
(U.S.);
(b) STOCK: 1,000,000 shares the stock of Forest Oil
Corporation (the "Stock"), subject only to the
Buyer's registration of such stock, pursuant to the
following;
(i) Filing of Shelf Registration Statement.
Buyer shall file, by Closing, but in no event later than
thirty (30) days thereafter, with the Securities and
Exchange Commission (the "Commission"), and thereafter
shall use its best efforts to cause the Commission to declare
effective, a registration statement (together with the
documents incorporated by reference therein, the "Registration
Statement") providing for the registration of the Stock
for resale for cash by Seller. The Buyer shall also prepare
and use reasonable efforts to keep current a prospectus (the
"Prospectus") to be used in connection with the sale of the
Stock to be registered, from time to time, on the New
York Stock Exchange at prevailing market prices. The Buyer
shall use its best efforts to cause the Registration Statement
to become effective and to keep the Registration Statement
continuously effective and the Prospectus current for a period
of not longer than two years from the date of the Closing
or until all of the shares of Stock have been sold.
(ii) Condition to Obligation to Continue Registration.
It shall be a condition to the obligation of the Buyer to continue
in effect the registration provided for herein that Seller agrees
that, upon receipt of any notice from the Buyer of the happening
of any event requiring the preparation of a supplement or
amendment to the Prospectus then in effect relating to the sale
Stock so that such Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein
not misleading, Seller will forthwith discontinue disposition of
such Stock pursuant to the Registration Statement until Seller
receives copies of a supplemented or amended Prospectus that,
in the opinion of the Buyer, corrects such statement or omission.
The Buyer will use reasonable efforts to prepare such supplement
or amendment correcting such statement or omission as soon as
reasonably practicable following the discovery of such statement
or omission requiring such supplement or amendment. Seller also
agrees to notify the Buyer if any event relating to Seller occurs
that would require an amendment or supplement to such Prospectus;
(iii) In the event the Registration Statement is not
declared effective by the Commission within 45 days of its
filing pursuant to (i), above, Seller shall have the option
to return the Stock to Buyer and receive in exchange thereof
a cash payment equal to Sixteen Million Dollars ($16,000,000.00),
which payment will be made by Buyer by wire transfer pursuant
to the written instruction of Seller; and
(c) As supplemental cash consideration, a sum equal
to $100,000.00 for each $0.01 that the average annual
NYMEX price (actuals, as determined by the average of
the Closing Price of the last three (3) trading days
of each month of the 12 monthly Closing NYMEX prices)
exceeds $2.50 per mcf in 1998 and $2.60 per mcf in
1999, such supplemental cash payment to be paid to
Seller by wire transfer on or before February 1 of
the year following the year for which such payment is
due and owing,
(the "Purchase Price") allocated as among the Assets as
set forth in Exhibit "B," attached hereto.
The cash payment required under subparagraph (a), above,
herein shall be made by wire transfer at Closing pursuant to Seller's
instructions.
2.02 Performance Deposit
(a) Upon execution of this Agreement:
Buyer will pay to Seller, by wire transfer,
into the following Escrow Account: Whitney National
Bank, Main Branch, New Orleans, Louisiana, Account
No. 10-8852-01, the amount of Twenty Million and
No/100 ($20,000,000.00) Dollars, representing a
Performance Deposit which shall be, subject only to
the specific exceptions set out in subparagraph (b),
below, non-refundable and shall be paid to Seller by
the Escrow Agent, as hereinafter provided, in the
event that Closing (as defined in Article 9.01,
supra) does not occur.
(b) Exceptions to Non-Refundability of
Performance Deposit. The Performance Deposit shall
not be refunded to Buyer in the event that Closing
fails to occur, unless the failure to close is as a
result of one or more of the following occurrences:
(1) As a result of the failure of Seller
to close the transaction contemplated hereunder pursuant
to the provisions of Article 5.04, herein.
(2) As a result of termination of this
Agreement under Article X.
In effecting the refund of the Performance
Deposit pursuant to this Article 2.02(b), Seller and
Buyer shall advise the Escrow Agent, in writing, to
refund the deposit to Buyer.
2.03 Escrow Account. In order to establish the escrow
account referred to in Article 2.02 above, concurrently
with the execution of this Agreement, Buyer, Seller and
Escrow Agent shall enter into an Escrow Agreement in
substantially the form attached hereto as Exhibit "C" but
including, among its other terms and conditions, the
following procedures for instructing the Escrow Agent to
distribute the escrow funds:
(a) In the event Closing does occur, the Escrow
Agent shall be authorized to immediately transfer all
Escrow Funds, less escrow expenses but plus all
interest accruing thereon, from the Escrow Account
into an account designated, in writing, by Seller.
The Escrow Agent's authority shall be represented by
written instructions conveyed to Escrow Agent by
facsimile transmission from Buyer on the closing
date.
(b) In the event Closing does not occur and
such failure to close is not as a result of any of
the exceptions to non-refundability set out in
Article 2.02(b), hereof, Buyer shall instruct Escrow
Agent, in writing, by facsimile transmission, to
immediately pay to an account designated by Seller,
the Performance Deposit, less expenses, plus all
interest accrued thereon.
(c) In the event that Closing does not occur
and such failure to close is a result of the
occurrence of any one or more of the exceptions to
non-refundability set forth in Article 2.02(b),
Seller shall promptly instruct the Escrow Agent, in
writing, by facsimile transmission, to immediately
pay the Performance Deposit, less expenses, to Buyer,
plus all interest accruing thereon.
(d) In the event of the occurrence of either of
the circumstances described in subparagraphs (b) and
(c) and the party required to provide notice to the
Escrow Agent fails to do so, the party entitled to
the distribution of funds from the Escrow Account may
provide the Escrow Agent with a sworn affidavit
attesting to the particular circumstances whereupon
the Escrow Agent, after the expiration of five (5)
days written notice given to the other party, shall
promptly release the Performance Deposit to the
attesting party.
2.04 Allocation of Purchase Price. The "Allocated Value"
for any singular asset shall be that portion of the
Purchase Price allocated to such singular asset identified
on Exhibit "B," increased or decreased in the manner
described herein. Any adjustments to the Purchase Price,
other than those adjustments provided for in Article V,
Title Matters, and Article VI, Environmental Conditions,
shall be applied on a pro rata basis to the Allocated
Value for all assets. After such adjustments are made,
any adjustments to the Purchase Price made pursuant to
Article V and VI shall be applied to the Allocated Value
for the particular asset(s) affected.
2.05 Purchase Price Adjustments. The Purchase Price shall be
adjusted in the following manner:
(a) The Purchase Price shall be adjusted upward by
the following (determined without duplication and on an
accrual basis in accordance with generally accepted
accounting principles, consistently applied, and on a
sales, not entitlements, method of accounting):
(1) the value (determined by the price most recently
paid prior to the Effective Date for such oil less all applicable
deductions) of all oil in storage above the pipeline connection
as of the Effective Date and not previously sold by Seller which
is credited to the Assets (less applicable production taxes,
royalty and other burdens on the production payable on such oil
and subsequently paid by Seller). The amount of oil in storage
as of the Effective Date shall be based on gauge reports to the
extent available or on alternative methods to be agreed upon by
the parties.
(2) with respect to the Assets conveyed to Buyer,
the amount of all expenditures, net to Seller's interest,
(including all items customarily categorized as capital in
nature or other), rentals and other charges, pro-rata ad valorem,
property, production, excise, severance and similar taxes (but
not including income taxes, federal or state) based upon, or
measured by, the ownership of the Assets or the production of
hydrocarbons or the receipt of proceeds therefrom, paid by, or
on behalf of, Seller in connection with the operation of the
Assets, in accordance with generally accepted accounting
principles and attributable to the period after the Effective
Date until Closing (the "Adjustment Period"), expressly including,
without limitation, all of the lease operating expenses relating
to the Assets incurred and paid by the Seller to third parties
(excluding amounts paid in connection with the transactions
contemplated by the Agreement);
(3) with respect to the Assets conveyed to Buyer,
an amount equal to all prepaid expenses attributable to the
Assets that are paid by, or on behalf of, Seller that are, in
accordance with generally accepted accounting principles,
attributable to the Adjustment Period, including, without
limitation, prepaid utility charges and prepaid ad valorem,
property, production, severance and similar taxes based upon,
or measured by, the ownership of the Assets or the production
of hydrocarbons or the receipt of proceeds therefrom; and
(4) with respect to the Assets conveyed to Buyer,
by the value of each one-percent (or fraction thereof) of
increase in NRI above the NRI set forth in Exhibit "A," with
respect to any Well, such value to be calculated by dividing
the applicable Allocated Value of a Well by the NRI set forth
in said Exhibit "A" for such Well and multiplying the result
thereof by the increase in NRI.
(5) An amount equal to interest on the Purchase Price,
net of Performance Deposit and Purchase Price Adjustments, of
five (5) percent per annum from the Effective Date until
January 30, 1998, increasing to the rate of ten (10%) percent
per annum for the period from and after the January 30, 1998,
if the cause of the failure to Close is due to the actions
or inactions of Buyer.
(b) With respect to the Assets conveyed to Buyer,
the Purchase Price shall be adjusted downward by the
following (determined without duplication and on an
accrual basis in accordance with generally accepted
accounting principles, consistently applied, and on a
sales, not entitlements, method of accounting):
(1) the aggregate amount of proceeds received,
or to be received, by Seller from the sale of oil, gas
and other minerals produced from the Leases, Units and
Wells or otherwise in any way attributable to the Assets
during the Adjustment Period (net of any production royalties,
transportation costs and of any production, severance or sales
taxes paid, or to be paid, by Seller, using actual sales, not
Seller's entitlement, where such sales are greater than or
less than Seller's entitlement);
(2) the aggregate amount of royalty payments
payable to third parties but held in suspense by Seller
as of Closing;
(3) the amount of all payments made as provided
for in Article 2.02(a), hereof;
(4) by the value of each one-percent (or fraction
thereof) of decrease in NRI below that set forth in Exhibit
"A," with respect to any Well, such value to be calculated
by dividing the applicable Allocated Value of such Well by
the NRI set forth in said Exhibit "A" for such well and
multiplying the result thereof by the decrease in NRI;
(5) an amount equal to the value of the Assets
with respect to which preferential rights have been exercised
or consents to assign have not been secured.
(6) amounts received or to be received by Seller
for the sale, salvage or other disposition during the
Adjustment Period of any property, equipment or rights
included in the Assets without Buyer having received full
payment therefor; and
(7) all amounts otherwise received, or to be received
by, Seller and attributable to the ownership of the Assets
during the Adjustment Period.
(8) by the cumulative amount of project costs
allocated to each project identified on Attachment "A,"
Active Projects List, to the extent that such projects are
incomplete at Closing. The cost of each such project for
purposes of this adjustment shall be determined by taking
the average of two independent bids obtained by Seller, copies
of which bids shall be furnished to Buyer.
The adjustment described in Article 2.05(a)(2)and (3)
shall serve to satisfy up to the amount of the adjustment, Buyer's
obligation to pay operating expenses of the Assets for the
period between the Effective Date and Closing, and Buyer
shall not be separately obligated to pay the various payees
for such expenses. Similarly, the adjustments described in
Article 2.05(b)(1) shall serve to provide Buyer, up to the
amount of the adjustment, with the value of the oil, gas and
other minerals and the proceeds and products from the
Assets to which Buyer is entitled between the Effective
Date and Closing, and Buyer shall not have any separate
rights to receive the production, proceeds and products
affected.
Buyer and Seller shall execute and deliver a
settlement statement, prepared in accordance with this
Agreement and generally accepted accounting principles
(the "Preliminary Settlement Statement"), prepared by
Seller that shall set forth the Purchase Price and each
adjustment and the calculation of such adjustment used to
determine such amount. Seller shall provide Buyer with
the Preliminary Settlement Statement not less than three
(3) days prior to Closing for Buyer's review and approval.
The term "Closing Purchase Price" shall mean the Purchase
Price, adjusted as approved by the parties and as provided
in Article 2.05, using for such adjustments actual costs
and revenues, except where unavailable, whereupon Seller
will use reasonable estimates of such costs and revenues.
The Preliminary Settlement Statement shall also contain
wire transfer instructions concerning the delivery of the
Closing Purchase Price at Closing.
2.06 Receipts and Credits. Subject to the terms hereof
and except to the extent same have already been taken into
account as an adjustment to the Purchase Price, all
monies, proceeds, receipts, credits and income
attributable to the ownership and operation of the Assets
(a) for all periods of time from, and subsequent to, the
Effective Date, shall be the sole property and entitlement
of Buyer, and to the extent received by Seller, Seller
shall within 5 Business Days after such receipt, fully
disclose, account for and transmit same to Seller and (b)
for all periods of time prior to the Effective Date, shall
be the sole property and entitlement of Seller, and, to
the extent received by Buyer, Buyer shall fully disclose,
account for and transmit same to Seller promptly. Subject
to the terms hereof and except to the extent same have
already been taken into account as an adjustment to the
Purchase Price, all costs, expenses, disbursements,
obligations and liabilities attributable to the Assets (i)
for periods of time prior to the Effective Date,
regardless of when due or payable, shall be the sole
obligation of Seller, and Seller shall promptly pay, or if
paid by Buyer, promptly reimburse Buyer for and hold Buyer
harmless from and against same and (ii) for periods of
time from, and subsequent to, the Effective Date,
regardless of when due or payable, shall be the sole
obligation of Buyer, and Buyer shall promptly pay, or if
paid by Seller, promptly reimburse Seller for and hold
Seller harmless from and against same.
2.07 Effective Date. The Effective Date of the Sale of
the Assets described in Article 1.01 shall be January 1,
1998 as of 7:00 a.m., local time.
ARTICLE III.
TAXES
3.01 Payment of Taxes. The parties do not consider that
the transaction contemplated by this Agreement is subject
to taxation. However, any taxes or fees (other than
Seller's federal, state or local income taxes) directly
associated with this sale will be borne by Buyer. Seller
shall be liable and responsible for any and all taxes of
whatsoever kind or nature arising or accruing prior to the
Effective Date. Buyer shall be responsible for the
payment of any and all taxes relating to the Assets from
and after the Effective Date. Each party shall be
responsible for its own income taxes, if any, as may
result from the transaction contemplated hereby.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
4.01 Seller's Representations and Warranties. Seller
represents and warrants as follows:
(a) Legal Status and Authority:
(1) Seller is a corporation duly organized and
validly existing, in good standing, under the laws of
Seller's state of incorporation. Seller has the power and
authority to own its property and to carry on its business
as now conducted and to enter into and to carry out the terms
of this Agreement.
(2) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action
and Seller is not subject to any Charter, by-law, lien or
encumbrance of any kind, agreement, instrument, order or
decree of any court or governmental body (other than any
governmental approval required) which would prevent
consummation of the transactions contemplated by this Agreement.
(3) Seller shall warrant title to and forever
defend all and singular the Assets conveyed to Buyer, its
successors and assigns against every person whomsoever lawfully
claiming the Assets or any part thereof, by, through or under
Seller, but not otherwise.
(4) Seller is not a party to, or in any way obligated
under, nor does Seller have any knowledge of, any contract or
outstanding claim for the payment of any broker's or finder's
fee which Seller is obligated to pay in connection with the
origin, negotiation, execution, or performance of this Agreement
for which Buyer could be held responsible.
(5) The consummation of this transaction will not
violate or cause a default under (i) any bylaw or other
provision of any of Seller's corporate governing
documents; (ii) any material provision of any material
contract or agreement or of any bank loan, indenture or
credit agreement to which Seller is a party; (iii) any law,
ordinance, rule or regulation of any governmental
authority; or (iv) any applicable order, writ, judgment
or decree of any court or other competent authority and
will not result in the creation of any lien, charge or
encumbrance on any of the Assets.
(6) Except for routine change of operator filings,
no authorization, consent or approval of, or filing with, any
governmental authority is required to be obtained or made by
Seller for the execution and delivery by Seller of this Agreement
and the consummation by Seller of the transaction contemplated
hereunder. No authorization, consent or approval of any
non-governmental third party is required to be obtained
by Seller for the execution and delivery of this Agreement
or the consummation by Seller of the transaction contemplated
hereunder, except such prior written consents as are set forth
in Schedule 4.01 (a)(6), attached hereto. The transaction
contemplated is not subject to any prior preferential right
or option to purchase in favor of any third party, except
such preferential rights as described in said Schedule
4.01 (a)(6).
(7) This Agreement has been duly executed and
delivered by Seller, and all documents and instruments
required hereunder to be executed and delivered by Seller
at Closing will be duly executed and delivered by Seller.
This Agreement and all such documents and instruments constitute
legal, valid and binding obligations of Seller enforceable
in accordance with their terms, subject, however, to the
effects of bankruptcy, insolvency, reorganization and
other similar laws affecting creditors' rights generally.
(b) Information and Data Regarding Assets.
(1) Seller is not obligated by virtue of a
prepayment arrangement, make-up right under a production
sales contract containing a "take or pay" or similar provision,
production payment, a gas imbalance or any other arrangement,
to deliver hydrocarbons or proceeds from the sale thereof,
attributable to the Assets at some future time without
then or thereafter receiving the full contract price therefor.
There are no production imbalances as of the Effective Date.
(2) No person or entity has any call upon, option
to purchase or similar right to obtain production from the
Assets other than pursuant to renewal rights or automatic
renewal provisions contained in existing production sales
contracts cancelable upon thirty (30) days written notice
by Seller.
(3) All taxes imposed or assessed with respect
to or measured by or charged against or attributable to
the Assets or the hydrocarbons produced therefrom have been,
or will be, duly and timely paid.
(4) To the best of Seller's knowledge, the Assets
have been operated in accordance with all rules and regulations
of all governmental authorities having or asserting
jurisdiction relating to the ownership and operation of
the Assets, including the production of hydrocarbons
attributable thereto, and are not presently subject to
reduced allowables or other penalties due to overproduction
or otherwise.
(5) No fire, explosion, accident, earthquake,
act of public enemy or other casualty (regardless of
whether covered by insurance) adversely affecting any
material portion of the Assets, or the operation thereof,
or adversely affecting the ability of Seller to perform its
obligations under this Agreement, or the Exhibits hereto,
has occurred during Seller's use and ownership of the Assets.
(6) To the best of Seller's knowledge, there exist
no contracts or agreements regarding, or orders directed to,
the Assets or forming a part thereof, other than those described
and listed on Exhibit "A," hereto.
(7) Seller has not created, nor caused to be
created, nor, to the best of Seller's knowledge, does there
presently exist, under any contract or by operation of law,
any liens (excluding any unasserted or inchoate materialmen's,
mechanics' or similar liens or charges arising in the
ordinary course of business and operation of the Assets),
mortgages, encumbrances or other burdens in or on the Assets.
(8) Seller has paid, or will pay, all bills, debts,
expenses or charges relating to the Assets as of the Closing
in the normal course of its business operations.
(9) All proceeds of production attributable to the
Assets are currently being paid directly to Seller or its
authorized agents without the furnishing of indemnity, other
than the customary warranty contained in the division orders,
transfer orders or gas sale contracts that have been furnished
to Buyer, and no portion of such proceeds are being held in
suspense.
(10) For the purposes of the by, through and under
warranty, Seller represents that Seller's WI and NRI in
each of the Leases are as set forth in Exhibit "A,"
hereto, and that it has not created any overriding royalty
interest, production payments or carved out other mineral
interests affecting the interest in the Leases nor has
it alienated, conveyed or transferred an interest in, or
granted any option with respect to, the Leases, except
those certain assignments of overriding royalty described
in Exhibit "A."
(11) Seller has made available for examination
the Records and all applicable written agreements,
correspondence, reports, required safety plans, compliance
statements or other documents of which Seller is aware that
materially affect the Assets, including, but not limited
to, applicable operating agreements, joint venture
agreements, tax partnership agreements, product purchase
and sale agreements, farmout agreements and "area of mutual
interest" agreements, and all such agreements are (i)
listed on Exhibit "A," hereto, and (ii) legal, valid, binding,
subsisting and in full force and effect.
(12) To the best of Seller's knowledge, Seller has
obtained all permits, licenses and other authorizations
which are presently required under federal, state and local
laws for the operation of the Assets or with respect to
pollution or protection of the environment relating to the
Assets, including laws relating to actual or threatened
emissions, discharges or releases of pollutants, raw
materials, products, contaminants or hazardous or toxic
materials, surface water, ground water or land or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants or hazardous or toxic materials
or wastes, except to the extent the failure to obtain or
file such permits, licenses and other authorizations would
not result in, or reasonably be expected to result in, any
material liability or loss to Buyer or the Assets or adversely
affect the ability of Buyer to operate same.
(13) All Leases and leaseholds to be transferred
to Buyer hereunder are in full force and effect, and all
royalty payments with respect thereto are current without
deficiency, as to each Lease and leasehold in accordance with
their respective terms.
(14) Since the Effective Date, Seller has received
no notice of any proposed or contemplated modifications of any
existing drilling or production unit or units or the
establishment of new drilling or production units affecting
the Assets or amendments to or modifications or revisions
of the unit order or orders establishing same which would
have an adverse impact upon the Assets to be conveyed pursuant
to this Agreement.
(15) Seller is not in material breach as to the
Assets and any Wells thereon or any laws, regulations, rules,
decrees or orders relating thereto.
(16) None of the operations of Seller relating
to the Assets are now subject to federal or state
investigation directed toward evaluating whether any
remedial action involving a material expenditure is needed
to respond to a release or discharge of any toxic or
hazardous waste or substance into the environment, and
Seller has no material contingent liability in connection
with any release or discharge of any toxic or hazardous waste
or substance into the environment from Seller's Assets.
(c) Litigation. There is no demand, action, administrative
proceeding, lawsuit or governmental inquiry relating to the
Assets pending or, to the Seller's knowledge, threatened,
except such as are set forth in Schedule 4.01(c), with
respect to which identified lawsuits, Seller shall
retain specific responsibility and liability
therefor.
(d) Equipment and Personal Property. All equipment
and personal property currently used on the Assets
have been maintained in an operable state of repair
consistent with the customary standards in the
industry, except for such failures to maintain
as would not, individually or in the aggregate,
have a material adverse effect on the value of the
Assets or continued operation of the Assets.
SELLER HEREBY EXPRESSLY DISCLAIMS ANY
WARRANTY, WHETHER EXPRESS OR IMPLIED, AND WHETHER BY
COMMON LAW, STATUTE OR OTHERWISE, AS TO OPERATING
CONDITION, MERCHANTABILITY, FITNESS FOR ANY
PURPOSES, CONDITION OR OTHERWISE, CONCERNING ANY OF
THE ASSETS. ALL WELLS, PERSONAL PROPERTY, MACHINERY,
EQUIPMENT AND FACILITIES THEREIN, THEREON AND
APPURTENANT THERETO, SHALL BE CONVEYED BY SELLER AND
ACCEPTED BY BUYER PRECISELY AND ONLY "AS IS, WHERE
IS, AND WITH ALL FAULTS AND WITHOUT WARRANTY."
SELLER DOES NOT WARRANT THE ASSETS TO BE FREE FROM
REDHIBITORY DEFECTS, LATENT OR APPARENT, AND BUYER
SPECIFICALLY WAIVES ANY CLAIM FOR A REDUCTION OR
ADJUSTMENT IN THE PURCHASE PRICE BASED UPON
REDHIBITION OR QUANTI MINORIS OR ACTION OF EVICTION
ON ACCOUNT OF CONDITION OR MERCHANTABILITY OF THE
ASSETS. BUYER ACKNOWLEDGES THAT THIS WAIVER HAS BEEN
BROUGHT TO THE ATTENTION OF BUYER AND EXPLAINED IN
DETAIL AND THAT BUYER HAS VOLUNTARILY AND KNOWINGLY
CONSENTED TO THIS WAIVER OF WARRANTY OF FITNESS
AND/OR WARRANTY AGAINST REDHIBITORY VICES AND
DEFECTS.
(e) It has in its possession no
material, non-public information with respect to
Buyer.
4.02 Buyer's Representations and Warranties: Buyer
represents and warrants:
(a) Legal Status and Authority:
(1) Buyer is a corporation duly organized
and validly existing, in good standing, under
the laws of the State of New York and has the power
and authority to own its property and to carry on
its business, as now conducted, and to enter into
and to carry out the terms of this Agreement.
(2) The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all
necessary action on behalf of Buyer, and Buyer is
not subject to any charter, bylaw, lien or encumbrance
of any kind, agreement, instrument, order or decree
of any court or governmental body which would prevent
consummation of the actions contemplated by this Agreement.
(3) Buyer is not a party to, or in any way
obligated under, nor does Buyer have any knowledge of,
any contract or outstanding claim for the payment of
any broker's or finder's fee in connection with the
origin, negotiation, execution or performance of this
Agreement for which Seller could be held responsible.
(4) Buyer shall comply with all applicable
laws, ordinances, rules and regulations and shall
promptly obtain and maintain all permits required by
public authorities in connection with the Assets
purchased, except when such failure to comply or obtain
shall not have a material adverse effect.
(b) Condition of the Assets:
(1) Buyer has made, or arranged for others
to make, an inspection of the Assets. Buyer is solely
responsible for conducting its own due diligence
and inspection of the Assets. Buyer has also had
the full right and opportunity to ask questions of Seller,
its employees, agents and representatives, and Buyer
has assumed full responsibility for any conclusions
or analyses relating to the Assets and Buyer's decision
to purchase same. Buyer accepts all personal or
tangible property described in Article 1.01(e) in
"as is, where is and with all faults" condition,
with an express acceptance and understanding of the
representations and disclaimers contained herein.
(2) Subject to Seller's indemnification
as provided in Article 6.03, Buyer acknowledges
that the Assets have been used for oil and gas
drilling and producing operations, related oil
field operation and possibly the storage and disposal
of waste materials incidental to, or occurring in connection
with, such operations and that physical changes in the
land and/or water bottoms may have occurred as a result
of such uses and that, with respect to the physical
condition of the Assets, Buyer has entered into this
Agreement on the basis of Buyer's own investigation and
due diligence of the physical condition of the Assets,
including environmental conditions, and accepts the
Assets inclusive of any adverse environmental condition
presently existing, whether known or unknown.
(3) Buyer represents that it is not otherwise
prevented from having the Assets transferred to Buyer,
and Buyer is authorized to operate said Assets and
duly qualified to do business in the states where the
Assets are located.
(4) Buyer represents that it has had the
opportunity to inspect the Assets, the public records
and Seller's files for all purposes and has, in particular,
ascertained the physical condition and potential environmental
condition of the Assets, both surface and sub-surface.
(5) Buyer is engaged in the business of exploring
for or producing oil and gas or other valuable minerals
as an ongoing business, and Buyer is a sophisticated buyer,
knowledgeable in the evaluation and acquisition of oil and
gas properties. Furthermore, Buyer has been informed that
the solicitations of offers and the sale of the Assets by
Seller have not been registered with any securities
commission, state or federal, and Buyer hereby specifically
agrees that neither Buyer nor its directors, shareholders,
employees, representatives or agents shall initiate any
proceeding based upon the assertion or claim that the sale
contemplated hereunder is the sale of securities.
(6) Buyer is acquiring the Assets for its own
benefit and account and not with the intent of selling
such Assets in a manner that would be subject to regulation
under federal or state securities laws.
ARTICLE V.
TITLE MATTERS
5.01 After the date of this Agreement and until Closing,
Seller shall make all Records and documents in Seller's
possession affecting Seller's title to the Assets
available to Buyer and/or its representatives at Seller's
office, or such other place as deemed appropriate by
Seller, during normal business hours for examination by
Buyer. Seller shall not be obligated to perform any
additional title work, and any abstracts and title
opinions will not be made current by Seller.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,
NO WARRANTY OF ANY KIND IS MADE BY SELLER AS TO THE
INFORMATION SUPPLIED, EXCEPT THAT ANY SUCH DOCUMENTS
PROVIDED BY SELLER ARE TRUE AND CORRECT COPIES OF
MATERIALS PROVIDED OR MADE AVAILABLE. BUYER AGREES THAT
ANY CONCLUSIONS DRAWN THEREFROM SHALL BE THE RESULT OF ITS
OWN INDEPENDENT REVIEW AND JUDGMENT.
5.02 Title Defect Defined. The term "Title Defect,"
as used herein, shall mean any encumbrance, defect in or
objection to Seller's title to the Assets which, alone or
in combination with other title defects, would (i) induce
a pipeline purchaser to suspend payment of proceeds as to
an asset or require the furnishing of security or
indemnity, (ii) either results in a reduction of the NRI
or an increase in the WI without a corresponding increase
in NRI, each as set forth on Exhibit "A," or (iii) cause
Seller not to have Defensible Title to one or more of the
Assets.
The term "Defensible Title," as used herein,
shall mean title which is determinable of record and is
free of liens, claims or encumbrances.
Title Defect, as herein defined, shall not
include such non-material defects and/or title
irregularities which are in the nature of customary
defects expected to be encountered in the geographical
area involved and customarily acceptable to a prudent
operator and interest owner in the area, including,
without limitation, defects that have been cured by
possession under applicable laws of prescription, defects
in the early chain of title, such as failure to recite
marital status in documents, omissions of heirship or
succession proceedings, lack of survey and failure to
record releases of liens or mortgages that have expired of
their own terms or which through the passage of time or
statute are no longer enforceable or other such defects
that either, as a practical matter, have not resulted or
are not likely to result in claims that will materially
adversely affect Seller's title or are considered waivable
under customary title practices in the area.
5.03 Notice of and Remedies for Title Defect.
(a) Upon discovery of a Title Defect, Buyer shall
promptly notify Seller, in writing, of the nature of
the Title Defect, shall furnish Seller with Buyer's
basis for the assertion of such Title Defect and data,
if reasonably available to Buyer, in support thereof
and shall furnish Seller with the proposed reduction
in the Purchase Price attributable to such Title Defect.
(b) Upon receipt of such notice, Seller, at its
discretion, shall have the right to choose one of the
following options:
(1) to cure the Title Defect at Seller's
expense, either prior to Closing or, at Seller's sole
discretion, the parties shall proceed to Close, even
as to the singular asset subject to the asserted title
defect, and Seller, for a period of one hundred twenty
(120) days after Closing, shall have the right to attempt
to cure those Title Defects that Seller elects to cure
after Closing (the "Curative Period"). During the
Curative Period, that portion of the Purchase Price
allocated to the singular asset subject to the Title
Defect shall be deposited in an Escrow Account established
by Seller and Buyer for the duration of the Curative Period.
If Seller completes curative action which removes the Title
Defect within the Curative Period, the amount of the allocated
Purchase Price, plus interest, in the Escrow Account shall
be disbursed to Seller. If such Title Defect is not cured
by the end of the Curative Period, the singular asset
affected shall be re-conveyed to Seller, on such terms as
if the affected asset had never been conveyed to Buyer,
and the escrowed amount, plus interest, shall be disbursed
to Buyer;
(2) to reduce the Purchase Price by the
allocated amount;
(3) to exclude the affected Asset from the
sale and reduce the Purchase Price by an amount equal
to the value of such excluded Asset as set forth in
Exhibit "B"; or
(4) with respect to such Title Defect and
with Buyer's concurrence, to indemnify and hold harmless
Buyer from and against any and all adverse claims
asserted against Buyer's title, as acquired from Seller,
in a court of proper jurisdiction to the extent of the
value of such Title Defect.
(c) Any Title Defect which is not disclosed
to Seller by Buyer more than one (1) day prior to Closing
shall conclusively be deemed waived by Buyer for purposes
of Purchase Price adjustment.
(d) If Seller elects to cure a Title Defect
but is successful in only curing the defect partially
(e.g., the initial effect of the Title Defect is the
reduction of Seller's net revenue interest by 5%; however,
after Seller's curative effort Seller's net revenue
interest is reduced by only 3%), the value of the Title
Defect shall be proportionately reduced.
(e) With respect to any Title Defect,
the value of which is $5,000.00 or less, there shall
be no adjustment in the Purchase Price. Subject to
Seller's options set forth above in subparagraph (b),
the Purchase Price shall be reduced to the extent
that the cumulative value of all Title Defects having
a value greater than $5,000.00 exceeds $1.0 million.
5.04 If a Title Defect is based upon Buyer's notice that
Seller owns a lesser NRI or the notice is from Seller to
the effect that Seller owns a greater NRI than that shown
on Exhibit "A," then the Purchase Price shall be reduced
or increased, as appropriate, based upon the amount
allocated to the affected Asset on Exhibit "B" (the
"Allocation Exhibit"), attached hereto. In the event of
Title Defects which Seller, after notification as herein
provided, elects not to cure, indemnify Buyer for, as
herein provided, or exclude the affected Asset, as
provided above in Article 5.03, or cannot cure, prior to
expiration of the Curative Period, and which would
cumulatively cause the reduction of the Purchase Price by
more than fifteen (15%) percent, then Seller or Buyer may
terminate this Agreement without any liability whatsoever
to the other, and the Performance Deposit, as provided for
in Article 2.02, shall be refunded to Buyer in accordance
with the Escrow Agreement.
ARTICLE VI.
ENVIRONMENTAL CONDITIONS
6.01 Buyer's Access to Assets. Buyer and its employees
and representatives shall, subject to any necessary third
party approvals, and at Buyer's sole risk and expense, be
given access to all facilities, properties, personnel,
books, Records and other pertinent information within the
possession of Seller relating to the operation of the
Assets. Buyer's investigation shall be conducted in a
manner that minimizes any interference with the normal
operation of the Assets. Buyer may photocopy information
that it reviews at Buyer's expense. Buyer further and
specifically waives any cause of action against Seller,
its directors, shareholders, employees, representatives
and agents based upon a claim for damages, losses, costs,
expenses (including, attorneys' fees and court costs)
arising out of, resulting from or on account of, Buyer's
investigation of the environmental condition of the Assets
prior to Closing. Neither Buyer nor agents,
representatives or consultants of Buyer shall conduct any
environmental testing or sampling on, or with respect to,
the Assets prior to Closing, without the prior written
consent of Seller, which consent shall not be unreasonably
withheld. Any information obtained by Buyer under this
Article 6.01 shall remain confidential and shall not be
disclosed, except to Seller and Buyer's agents, partners,
bankers and consultants, without Seller's prior written
consent, unless required pursuant to order of a court or
governmental agency exercising proper jurisdiction over
the Assets and the environmental matters relating thereto.
6.02 Notice of and Remedies for Material Adverse
Environmental Condition(s). Upon discovery of a Material
Adverse Environmental Condition [herein defined as a
condition which (a) the existence, or the severity
thereof, was not previously known, or made known, to the
Buyer prior to execution of this Agreement; (b) is
required to be immediately remediated under applicable
environmental laws in effect on the Effective Date; and
(c) the cost to remediate such condition to lawfully
acceptable levels will exceed, as to Buyer's share, the
sum of $25,000.00; or (d) the cumulative cost to remediate
all conditions qualifying under (a) and (b) and having an
individual cost of greater than $25,000.00 exceeds $1.0
million], Buyer shall immediately notify Seller, in
writing, of the nature of such condition and shall furnish
Seller with Buyer's basis for the assertion of same along
with available data in support thereof. In the event the
Buyer has properly notified Seller of one or more
environmental conditions which, alone or together,
constitute a Material Adverse Environmental Condition,
Seller shall select one of the following options at its
sole discretion:
(a) remedy the Material Adverse Environmental
Condition(s) at its own expense and to the satisfaction of
Buyer or the appropriate governmental authority prior to
Closing or as soon as thereafter practicable;
(b) reduce the Purchase Price by an amount
equal to the cost of the remediation of the Material Adverse
Environmental Condition(s), as mutually agreed upon by Seller
and Buyer;
(c) exclude the affected Asset from the sale
and reduce the Purchase Price by an amount equal to the
allocated value of the affected Asset as set forth in
Exhibit "B" or, if there is no allocated value to the
affected Asset, or the portion thereof, then by an amount
mutually agreed upon; or
(d) with respect to such Material Adverse
Environmental Condition(s), with Buyer's concurrence,
indemnify and hold Buyer harmless against any and all
claims arising directly out of such condition(s) to the
extent of the cost of the remediation of such Material
Adverse Environmental Condition(s).
Any Material Adverse Environmental Condition
which is not disclosed by Buyer to Seller not less than
five (5) days prior to Closing shall conclusively be
deemed waived by Buyer for purposes of Purchase Price
reduction.
Notification to Seller by Buyer of the presence
in the wellbore, currently utilized equipment, pipeline,
flowline or vessel of naturally occurring radioactive
material ("NORM") or asbestos shall not be cause to invoke
any of the remedies set forth in this Article 6.02.
6.03 BUYER'S RELEASE AND INDEMNITY. BUYER HEREBY
RELEASES SELLER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, REPRESENTATIVES AND AGENTS ("SELLER INDEMNIFIED
PARTIES") FROM ANY AND ALL LIABILITY AND RESPONSIBILITY
AND AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER
INDEMNIFIED PARTIES HARMLESS FROM ANY AND ALL CLAIMS,
CAUSES OF ACTION, FINES, EXPENSES, COSTS, LOSSES AND
LIABILITIES WHATSOEVER IN CONNECTION WITH THE
ENVIRONMENTAL CONDITION OF THE ASSETS, KNOWN OR UNKNOWN,
INCLUDING, SUCH AS MAY ARISE UNDER APPLICABLE FEDERAL,
STATE AND LOCAL LAW, INCLUDING, WITHOUT LIMITATION, THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT OF 1980, 42 U.S.C., SECTION 9601, ET SEQ.,
AS AMENDED, ("CERCLA"), THE RESOURCE CONSERVATION AND
RECOVERY ACT OF 1976, AS AMENDED, THE CLEAN AIR ACT, 42
U.S.C., SECTION 7401, ET SEQ., AS AMENDED, THE FEDERAL
WATER POLLUTION ACT OF 1990, 33 U.S.C., SECTION 1251, ET.
SEQ., AS AMENDED, AND THE OIL POLLUTION ACT OF 1990, 33
U.S.C., SECTION 2701, ET SEQ., AS AMENDED (THE "LAWS"),
WHEN SUCH CONDITION IS CAUSED BY EVENTS OR OPERATIONS OR
ACTIVITIES OCCURRING AFTER THE CLOSING DATE, AND, FURTHER,
FOLLOWING THE EXPIRATION OF A PERIOD OF TWENTY-FOUR (24)
MONTHS AFTER THE EFFECTIVE DATE, BUYER'S INDEMNIFICATION
AND RELEASE OF SELLER INDEMNIFIED PARTIES SHALL EXTEND TO
ALL CLAIMS, CAUSES OF ACTION, FINES, EXPENSES, COSTS,
LOSSES AND LIABILITIES WITHOUT REGARD AS TO WHETHER SUCH
CONDITION IS CAUSED BY EVENTS OR OPERATIONS OCCURRING
PRIOR TO OR AFTER THE EFFECTIVE DATE. FOR A PERIOD OF
TWENTY-FOUR (24) MONTHS AFTER THE EFFECTIVE DATE, SELLER
AGREES TO INDEMNIFY, DEFEND AND HOLD BUYER, ITS OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES AND
AGENTS HARMLESS FROM ANY AND ALL CLAIMS, CAUSES OF ACTION,
FINES, EXPENSES, COSTS, LOSSES AND LIABILITIES WHATSOEVER
IN CONNECTION WITH THE ENVIRONMENTAL CONDITION OF THE
ASSETS, INCLUDING SUCH AS MAY ARISE UNDER THE LAWS WHEN
SUCH CONDITION WAS CAUSED OR CREATED BY EVENTS OR
OPERATIONS OR ACTIVITIES ORIGINATING DURING SELLER'S
OWNERSHIP OF THE ASSETS.
ARTICLE VII.
ADDITIONAL AGREEMENTS
7.01 Seller's Disclaimer. Except as otherwise set
forth in Article IV of this Agreement, Seller disclaims
all liability or responsibility for any statement,
information or data made or communicated (orally or in
writing) to Buyer, its affiliates, or any stockholder,
officer, director, employee, agent, advisor or
representative of either (including, but not limited to,
any opinion, information or advice which may have been
provided to any such party by any representative of Seller
or any other party), wherever or however made. Seller
makes no representation or warranty as to (i) the amounts,
value, quality, or deliverability of hydrocarbons from the
Assets, (ii) any geological, geophysical or other
interpretations with respect to the Assets and (iii) any
economic forecasts, in each case whether contained in any
material furnished to Buyer by Seller, its officers,
directors, employees, agents, advisors, representatives or
otherwise. Buyer expressly acknowledges and accepts
Seller's disclaimer. All data, information and other
materials furnished by Seller are presumed by Seller to be
accurate and are provided to Buyer as a convenience, and
reliance on, or use of, such information or materials is
at Buyer's sole risk.
7.02 Restrictions on Operations.
a) From the date hereof until the Closing Date,
Seller shall (or, with respect to non-operated Wells,
shall use its best efforts to cause the operator of
all Wells in which it owns working interests to):
(i) not abandon any Well on any Lease capable
of commercial production, or release or abandon all or
any part of the Assets capable of commercial production
or release or abandon all or any portion of the Leases
without Buyer's written consent;
(ii) not cause the Assets to be developed,
maintained or operated in a manner materially inconsistent
with prior operation;
(iii) not commence or agree to participate in
any operation on the Assets anticipated to cost in excess
of Twenty-Five Thousand and No/100 Dollars ($25,000.00)
per operation net to Seller's interest without Buyer's
written consent (except emergency operations, operations
required under presently existing contractual obligations,
and operations undertaken to avoid any penalty provision
of any applicable agreement or order):
(iv) not create any lien, security interest or
other encumbrance with respect to the Assets (except for
Permitted Encumbrances), or, without Buyer's written consent,
enter into any agreement for the sale, disposition or
encumbrance of any of the Assets, or dedicate, sell,
encumber or dispose of any oil and gas production, except
in the ordinary course of business on a contract which
is terminable on not more than thirty (30) days notice;
(v) not agree to any alterations in the contracts
included in, or relating to, a material portion of the
Assets or enter into any material new contracts relating
to the Assets (other than contracts terminable on not
more than thirty (30) days notice) without Buyer's
written consent;
(vi) maintain in force all insurance policies
covering the Assets;
(vii)maintain the Leases in full force and
effect and comply with all express or implied covenants
contained therein without Buyer's written consent
(provided that this covenant shall not be deemed to
expand Seller's title warranties beyond those expressly
contained in this Agreement);
(viii) pay, or cause to be paid, all material
costs and expenses incurred in connection with the Assets
before the date on which they become delinquent;
(ix) maintain in all material respects the Assets
taken as a whole in good and effective operating condition
so as to be adequate for normal operations in accordance
with Seller's normal practices;
(x) exercise due diligence in safeguarding and
maintaining secure and confidential all geological and
geophysical maps, logs, confidential reports and data
and all other confidential data relating in any way to
the Assets; and
(xi) furnish Buyer with copies of all AFE's
received or issued by Seller prior to the Closing.
(b) From and after the date of
this Agreement, until Closing, Seller shall:
(i) provide Buyer with access (or, where
Seller is not an operator, use its best efforts to
arrange for access) to the Assets for inspection thereof
at the sole cost, risk and expense of Buyer;
(ii) promptly identify and endeavor to obtain
any and all necessary consents, waivers (including waiver
of preferential purchase rights), permissions and approvals
of third parties or governmental authorities in connection
with the sale and transfer of the Assets, other than
approvals of federal lease assignments to Buyer;
(iii) afford Buyer the right to approve in
advance all letters and other documents sent to any
third party attempting to permit the sale of any portion
of the Assets to Buyer;
(iv) cause to be filed all reports required
to be filed by Seller with governmental authorities
relating to the Assets;
(v) advise and consult with Buyer, from time
to time, upon Buyer's request, concerning the operation
and development and development of Assets;
(vi) maintain its organizational status from
the date hereof until Closing and assure that, as of the
Closing Date, it will not be under any legal or contractual
restriction that would prohibit or delay the timely
consummation of the transaction contemplated by this
Agreement;
(vii) use its best efforts to maintain existing
relationships with all suppliers, customers and
others having business relationships with Seller,
with respect to the Assets, so that such relationships
will be preserved for Buyer on and after the Closing
Date;
(viii) provide prompt notice to Buyer of
any notice received by Seller of a default, claim,
obligation or suit which affects any of the Assets;
and
(ix) notify Buyer of any event, condition,
or occurrence which results in any of the representations
and warranties made herein to be untrue.
7.03 Assumption of Liabilities and Indemnification.
Buyer expressly assumes Seller's proportionate share of
all costs, expenses, obligations and liabilities
associated with the Assets after the Closing Date,
including, but by no means limited to, the proper and
lawful plug and abandonment and reabandonment of all wells
and facilities on lands covered by the Leases or pooled
therewith, closure of all pits, removal of all flowlines,
pipelines, shell pads and pilings, whether now or
hereafter, located on the lands to be transferred
hereunder in accordance with all requirements under law,
including, but not limited to, the rules, regulations and
requirements of any governmental authority having
jurisdiction thereof, specifically including the
Department of Conservation, State of Louisiana and in
accordance with all obligations, express or implied, in
any agreement (including the applicable leases) which
Buyer is required to assume hereunder or hereby, whether
or not any such obligations arise prior to or after the
Closing Date.
SUBJECT TO SELLER'S INDEMNIFICATION SET FORTH
BELOW, BUYER SHALL INDEMNIFY AND DEFEND SELLER, ITS
OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES
AND EMPLOYEES ("SELLER INDEMNIFIED PARTIES") AGAINST ANY
AND ALL SUCH LOSSES, CLAIMS, SUITS, CONTROVERSIES,
LIABILITIES AND EXPENSES, ARISING OUT OF, OR IN CONNECTION
WITH, OBLIGATIONS ASSUMED UNDER THIS PARAGRAPH, INCLUDING,
WITHOUT LIMITATION, THE PLUGGING AND ABANDONING AND
REABANDONING OF ANY WELLS, REMOVAL OR MODIFICATION OF
FACILITIES, INCLUDING, BUT NOT LIMITED TO, FLOWLINES AND
PIPELINES, CLOSURE OF PITS AND RESTORATION OF SURFACE,
REGARDLESS OF WHETHER THE OBLIGATION TO PLUG AND ABANDON
AND REABANDON, REMOVE, MODIFY, CLOSE OR RESTORE AROSE
PRIOR TO, OR SUBSEQUENT TO, THE CLOSING DATE, AND SUCH
INDEMNIFICATION SHALL EXTEND TO AND INCLUDE CLAIMS OR
CAUSES OF ACTION BASED UPON THE NEGLIGENCE OR STRICT
LIABILITY OF SELLER INDEMNIFIED PARTIES. THE SALE WILL BE
MADE EXPRESSLY SUBJECT TO THE TERMS OF ALL EXISTING
OPERATING AGREEMENTS, UNIT AGREEMENTS, FARMOUT AGREEMENTS,
LEASES, SUBLEASES AND ASSIGNMENTS AS WELL AS ANY AND ALL
OTHER AGREEMENTS WHICH ARE SET FORTH ON EXHIBIT "A,"
WHETHER RECORDED OR UNRECORDED, AFFECTING THE ASSETS.
Buyer further agrees to indemnify, release,
defend and hold Seller Indemnified Parties harmless from
and against any and all damages, losses, expenses
(including, but not limited to, court costs, attorneys'
fees, consultant fees and investigative costs and fees)
and all other costs and liabilities arising as a result of
claims, demands and all other causes of action arising out
of an event or omission occurring subsequent to the
Closing Date. For a period of two (2) years after the
Effective Date, Seller agrees to indemnify, defend and
hold Buyer its officers, directors, shareholders,
employees, representatives and agents harmless from any
and all claims, causes of action, fines, expenses, costs,
losses and liabilities arising as a result of claims,
demands and all other causes of action arising out of an
event or omission originating during Seller's period of
ownership of the Assets.
7.04 Inducement to Seller. Buyer acknowledges that it
evaluated its obligations under Articles V, VI and VII
before it determined and submitted its offer for the
Assets, and Buyer understands that its assumptions of
obligations and its indemnifications are a material
inducement to Seller to enter into this Agreement with,
and close the sale to, Buyer.
7.05 Seller's General Liability Limitation.
Notwithstanding anything herein provided to the contrary,
including, without limitation, the indemnification of
Buyer provided for in Articles 6.03 and 7.03, Seller shall
have no liability to Buyer, its officers, directors,
shareholders, employees, representatives or agents to the
extent that the aggregate amount of all claims asserted
under the provisions of this Agreement exceed fifty (50%)
percent of the Purchase Price.
ARTICLE VIII.
CONDITIONS PRECEDENT TO CLOSING
8.01 Seller's Conditions Precedent. The obligations of
Seller to consummate the transaction contemplated by this
Agreement are subject to each of the following conditions:
(a) Buyer shall have performed and complied,
in all material respects, with all terms of this
Agreement required to be performed by, or complied
with, by Buyer prior to Closing.
(b) No action or proceeding by any third party
or by or before any governmental authority shall
have been instituted or threatened (and not
subsequently dismissed, settled or otherwise
terminated) which might restrain, prohibit or
invalidate any of the transactions contemplated
by this agreement, other than an action or
proceeding instituted or threatened by Seller
or any of its affiliates.
(c) Buyer's Representations and Warranties set
forth herein are true and correct in all material
respects at the time of Closing, as though
made on Closing Date.
(d) The Purchase Price has not been reduced in
an amount in excess of fifteen (15%) percent as
a result of a portion of Seller's title having
been found to suffer from uncured Title Defects
or unremediated Material Adverse Environment
Condition(s), as hereinabove defined, unless
Seller otherwise elects.
8.02 Buyer's Conditions Precedent. The obligation of
Buyer to consummate the transactions contemplated by this
Agreement is subject to each of the following conditions
precedent:
(a) Seller shall have performed and complied
with all terms of this Agreement required to be
performed by, or complied with, by Seller prior
to Closing.
(b) Seller's Representations and Warranties
set forth herein are true and correct in all
material respects at the time of Closing,
as though made on the Closing date.
(c) No action or proceeding by any third
party or by or before any governmental authority
shall have been instituted or threatened (and
not subsequently dismissed, settled or otherwise
terminated) which might restrain, prohibit or
invalidate any of the transactions contemplated
by this agreement, other than an action or
proceeding instituted or threatened by Buyer or
any of its affiliates.
(d) The Purchase Price has not been reduced
in an amount in excess of fifteen (15%) percent
as a result of a portion of Seller's title
having been found to suffer from uncured Title
Defects or unremediated Material Adverse
Environment Condition(s), as hereinabove defined,
unless Buyer otherwise elects.
(e) Unless waived or otherwise agreed to by
Buyer and Seller, Seller shall have obtained
all consents to the transaction from third
parties as set forth on Schedule 4.01(a)(6)
and shall have obtained written waivers from
all parties having preferential right to
purchase any or all of the Assets, or the time
period for exercising each such preferential
right has expired, as such preferential rights
are set forth on Schedule 4.01(a)(6).
(f) To the extent provided for in this Agreement,
Buyer, or its nominee, has been designated as the
operator of the Assets by any other non-operating
working interest owner, if required.
(g) Seller shall have been provided with title
opinions covering all leases which comprise the
Tigre Lagoon and Bayou Postillion Fields, as set
forth in Exhibit "A," which opinions shall be
addressed to Buyer and Seller in a form acceptable
to Buyer.
ARTICLE IX.
CLOSING
9.01 Time and Place of Closing. The sale and purchase
of the Assets pursuant to this Agreement (the "Closing")
shall be consummated and completed in Seller's offices in
Metairie, Louisiana on or before January 30, 1998 at 10:00
a.m. C.S.T.
9.02 Closing Obligations. 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:
(a) Seller shall execute, acknowledge and
deliver to Buyer:
(1) for Buyer's execution, the Assignment,
Bill of Sale and Conveyance in substantially the form
of Exhibit "D," attached hereto, conveying to Buyer
the Assets; and
(2) title, curative documents and other
materials Seller may have elected to deliver pursuant
to Article 5.03.
(b) Buyer shall deliver to Seller the Closing
Purchase Price, minus the Performance Deposit, by
direct bank or wire transfer in immediately available
federal funds as provided in the Preliminary Settlement
Statement. Buyer shall also deliver to the Escrow
Agent written notification to pay the Performance
Deposit, as provided in the Escrow Agreement.
(c) Seller shall deliver to Buyer exclusive
possession of the Assets, including all monies held
in suspense and for account of third parties.
(d) Seller and Buyer shall execute,
acknowledge and deliver transfer orders or
letters-in-lieu thereof directing all purchasers of
production to make payment to Buyer of proceeds
attributable to production from the Assets conveyed
to Buyer along with written notification of changes
of operator as required by the State Office of
Conservation.
(e) Seller and Buyer shall deliver copies
of all such documents deemed reasonably necessary
by the other to evidence each party's authority to
enter into and execute all agreements required
hereunder to satisfy the Closing Obligations,
including, without limitation, powers of
attorney, limited partnership authorizations,
corporate resolutions, by-laws and such similar
documents evidencing the parties authority such as
the other party may reasonably request.
(f) Buyer and Seller shall execute and
deliver such other documents as may be necessary
to consummate the transactions contemplated
hereby, including, forms transferring all permits
related to the Assets.
(g) Seller and Buyer shall deliver, upon
request by the other, a certificate dated as of
the Closing Date, signed by an authorized
representative of the requested party, certifying
that the representations and warranties were true and
complete, in all material respects, when made, and
shall be true and complete on, and as of, Closing as
though such representations and warranties were made
at, and as of, such date.
9.03 Final Settlement. As soon as practicable after the
Closing but no later than 120 days, Seller shall prepare
and deliver to Buyer in accordance with this Agreement and
generally accepted accounting principles, a statement (the
"Final Settlement Statement") setting forth each
adjustment or payment that was not finally determined as
of Closing and showing the calculation of such
adjustments. Within thirty (30) days after receipt of the
Final Settlement Statement, Buyer shall deliver to Seller
a written report containing any changes that Buyer
proposes be made to the Final Settlement Statement. The
parties shall undertake to agree with respect to the
amounts due pursuant to such post-closing adjustment no
later than thirty (30) days after Seller has received
Buyer's proposed changes. The date upon which such
agreement is reached or upon which the Final Purchase
Price is established shall be called the "Final Settlement
Date". If the parties cannot agree to the adjustment of
the Final Purchase Price, then either Buyer or Seller may
submit such disputed adjustments to the New Orleans office
of the accounting firm of Arthur Anderson, L.L.P., and the
determination made as to such disputed adjustments by such
accounting firm shall be final and binding upon Buyer and
Seller. The fees charged by such accounting firm shall be
borne equally by each party. If (i) the Final Purchase
Price is more than the Preliminary Purchase Price, Buyer
shall pay by wire transfer the amount of such difference
to Seller or to Seller's account (as designated by Seller)
or (ii) the Final Purchase Price is less than the
Preliminary Purchase Price, Seller shall pay in
immediately available funds the amount of such difference
to Buyer or to Buyer's account (as designated by Buyer).
Payment by Buyer or Seller shall be made within five (5)
days after the Final Settlement Date. However, in no
instance shall interest be paid by either party on the
amounts paid pursuant to the provisions of this Article
9.03.
Within one (1) year of Closing, either party
may, at its own expense, audit the other party's books,
accounts and records relating to production, sales
proceeds, operating expenses and taxes paid which may have
been adjusted due to this transaction. Such audit shall
be conducted following reasonable advance written notice
to the party to be audited and shall be conducted during
regular business hours and at minimum inconvenience to the
audited party.
In addition, with respect to consideration to be
paid to Seller, post-Closing, Seller may, at its own
expense audit Buyer's books relating to production, sales
proceeds, operating expenses and taxes paid which impact
such post-Closing consideration, such right to audit shall
continue until all contingent monies have been paid.
ARTICLE X.
TERMINATION
10.01 Termination. This Agreement and the transaction
contemplated hereby may be terminated in the following
instances:
(a) By Seller, under Article V, Article VI,
or if any of the conditions set forth in Article 8.01
(Seller's Conditions Precedent to Closing) are not
satisfied in all material respects or waived by
Seller at the time of Closing.
(b) By Buyer, under Article V or VI or if
any of the conditions set forth in Article 8.02
(Buyer's Conditions Precedent to Closing) are
not satisfied in all material respects or waived
by Buyer at the time of Closing.
(c) At any time by the mutual written agreement
of Seller and Buyer.
(d) Automatically, if Closing on the transaction
contemplated herein does not occur by April 30, 1998
and no party is at fault for such failure.
10.02 Effect of Termination. In the event that the Closing does
not occur as a result of automatic termination or any
party hereto exercising its rights to terminate pursuant
to Article 10.01, then this Agreement shall be null and
void and, except as expressly provided herein, no party
shall have any rights or obligations under this Agreement,
except for the payment of the Performance Deposit to Buyer
or Seller, as the case may be, out of the Escrow Account.
Nothing herein shall relieve any party from liability for
any willful or negligent failure to perform or observe in
any material respect any agreement or covenant herein. In
the event the termination of this Agreement results from
the willful or negligent failure of any party to perform
in any material respect any agreement or covenant herein,
then notwithstanding anything to the contrary herein
contained, the other party shall be entitled to all
remedies available in law or in equity and shall be
entitled to recover court costs and reasonable attorneys'
fees in addition to any other relief to which such party
may be entitled.
ARTICLE XI.
CASUALTY LOSS
11.01 If subsequent to the Effective Date and prior to Closing,
all or any material portion of the Assets to be conveyed
to Buyer at Closing is destroyed by fire or other
casualty, is taken in condemnation or under the right of
eminent domain or proceedings for such purposes are
pending or threatened, Buyer may purchase such Assets
notwithstanding any such destruction, taking or pending or
threatened taking, and the Purchase Price shall be
adjusted as agreed upon by the parties; provided however,
Buyer shall not be obligated to close on the transaction
if all, or substantially all, of the Assets are destroyed
or otherwise lost. Seller shall, at Closing, pay to Buyer
all sums paid to Seller by third parties by reason of the
destruction or taking and shall assign, transfer, and set
over unto Buyer all of the right, title and interest of
Seller in and to any unpaid awards or other payments from
third parties arising out of the destruction or taking, as
to such Assets to be conveyed to Buyer. Seller shall not
voluntarily compromise or settle or adjust any material
amounts due and payable by reason of such destruction or
taking without first obtaining Buyer's written consent.
ARTICLE XII.
MISCELLANEOUS
12.01 Exhibits. The Exhibits referred to in this Agreement are
hereby incorporated in this Agreement by reference and
constitute a part of this Agreement. Each party to this
Agreement has received a complete set of Exhibits as of
the execution of this Agreement.
12.02 Expenses. Except as otherwise specifically
provided, all fees, costs and expenses incurred by Buyer
or Seller in negotiating this Agreement shall be paid by
the party incurring the same, including, without
limitation, legal and accounting fees, costs and expenses.
12.03 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 the individual indicated below, or if mailed or by
facsimile transmission, when received by the party charged
with such notice and addressed as follows:
If to Buyer:
Forest Oil Corporation
1600 Broadway, Suite 2200
Denver, Colorado 80202
Attention: V. Bruce Thompson and David H. Keyte
Telephone:(303) 812-1400
Fax: (303) 812-1510
With a copy to:
Lambert Laperouse, Esq.
Pulaski, Geiger & LaBorde, L.L.C.
701 Poydras Street, Suite 4800
New Orleans, Louisiana 70139-4800
Telephone:(504) 561-0400
Fax: (504) 561-1011
If to Seller:
LLOG Exploration Company
433 Metairie Road, Suite 600
Metairie, Louisiana 70005
Telephone:(504) 833-7700
Fax: (504) 833-8064
With a copy to
Michael C. McKeogh, Esq.
601 Poydras Street, Suite 2421
New Orleans, Louisiana 70130
Telephone:(504) 524-3996
Fax: (504) 524-3019
Any party may, by written notice so delivered to
the other parties, change the address or individual to
which delivery shall thereafter be made.
12.04 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.
12.05 Assignment. Prior to Closing, neither party may
assign all or any portion of its rights or delegate all or
any portion of its duties hereunder, unless it continues
to remain liable for the performance of the obligations
hereunder and obtains the prior written consent of the
other party, which consent shall not be unreasonably
withheld.
12.06 Conditions. The inclusion in this Agreement of
conditions to Seller's and Buyer's obligations at the
Closing shall not, in and of itself, constitute a covenant
of either Seller or Buyer to satisfy the conditions of the
other party's obligations at Closing.
12.07 Headings. The headings of the articles and
sections 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.
12.08 Counterparts. This Agreement may be executed by
Buyer and Seller in any number of counterparts, each of
which shall be deemed an original instrument, but all of
which, together, shall constitute but one and the same
instrument.
12.09 References. References made in this Agreement,
including use of a pronoun, shall be deemed to include
where applicable, masculine, feminine, singular or plural,
individuals, partnerships or corporations. As used in
this Agreement, "person" shall mean any natural person,
corporation, partnership, trust, estate or other entity.
12.10 Governing Law. This Agreement and the
transactions contemplated hereby shall be construed in
accordance with, and governed by, the laws of the State of
Louisiana.
12.11 Entire Agreement. This Agreement (including the
Exhibits attached hereto) constitutes the entire
understanding among the parties with respect to the
subject matter hereof, superseding all negotiations, prior
discussions and prior agreements and understandings
relating to such subject matter.
12.12 Parties in Interest. This Agreement shall be
binding upon, and shall inure to the benefit of, the
parties hereto (including Buyer and each Seller) and their
respective successors and permitted assigns, and nothing
contained in this Agreement, expressed or implied, is
intended to confer upon any other person or entity any
benefits, rights or remedies.
12.13 Survival. Except as hereinbelow provided, the
liability of Buyer and Seller under each of their
respective representations, warranties and covenants shall
survive Closing and execution and delivery of the
Assignment contemplated hereby. The following of Seller`s
representations and warranties shall have the survival
periods set forth below:
(a) Articles 4.01(a) and 4.01(b)(10)
shall survive Closing without limitation.
(b) Article 4.01(b)(4); (b)(6); (b)(12);
and (b)(15) shall survive Closing for a period of
five (5) years.
(c) All other of Seller`s representations
and warranties shall survive Closing for a period of
two (2) years.
With respect to subparagraphs (b) and (c),
above, any claim that Seller is liable for any breach of
such representation and warranty, by either Buyer or a
third party, must be made in writing and delivered to
Seller within the respective survival periods set forth.
12.14 Arbitration. All disputes arising out of, or in
connection with, this Agreement (except such disputes
regarding the Final Statement, the procedures for which
are provided for in Article 9.03) or any determination
required to be made by Buyer and Seller as to which the
parties cannot reach an agreement shall be settled by
arbitration in New Orleans, Louisiana. Any matter to be
submitted to arbitration shall be determined by a panel of
three (3) arbitrators, unless otherwise agreed by the
parties. Each arbitrator shall be a person experienced in
the oil and gas industry and shall be appointed
(a) by mutual agreement of Buyer and Seller, or
(b) failing such agreement, within sixty (60)
days of the request for arbitration, each party shall
appoint one arbitrator, and the third arbitrator
shall be appointed by the other two arbitrators, or,
if they cannot agree, by a judge serving of the
United States District Court, Eastern District of
Louisiana, Fifth Circuit.
In the event of the failure or refusal of the
parties to appoint the arbitrator(s) within 120 days of
the request for arbitration, the arbitrator shall be
selected in accordance with reasonable rules established
by the arbitrators. The arbitration shall be conducted in
accordance with reasonable rules established by the
arbitrators. Any award by the arbitrators shall be final,
binding and non-appealable, and judgment may be entered
thereon in any court of competent jurisdiction.
12.15 Confidentiality. Seller and Buyer have
previously entered into a Confidentiality Agreement, dated
October 23, 1997, and the parties hereto agree that the
provisions thereof shall continue to apply during the term
of this Agreement and, except as to Paragraphs 2,3 and 4
thereof, after Closing.
12.16 Seller's Option to Make "Like-Kind" Exchange.
At any time prior to Closing, Seller may elect by written
notice to Buyer to receive all or a portion of the
Purchase Price through an escrow agent designated by
Seller pursuant to an escrow agreement to be established
for purposes of effecting a tax free, like-kind exchange
under Section 1031 of the Internal Revenue Code of 1986,
as amended. Buyer agrees to cooperate with all reasonable
requests of Seller in order to establish and create
sufficient documentation to support such federal tax
treatment by Seller, provided that Buyer shall have no
obligation to incur or pay any cost or expense in such
connection, and provided, further, that Buyer shall have
no obligation to acquire any properties (other than the
Assets) in connection, with such exchange or to execute
any agreements or other documents or to undertake any
other action whereby Buyer might incur or assume any
indebtedness or other liability in connection with such
exchange.
If Seller appoints an Intermediary pursuant to
this paragraph, it may transfer the Assets to the
Intermediary, and at Closing, the Intermediary shall
transfer the Assets to the Buyer and receive consideration
payable at Closing from Buyer, all pursuant to this
Agreement. The payment by Buyer of such consideration to
the Intermediary shall be treated as satisfaction of
Buyer's obligations under the Agreement to the same extent
as if such payment had been made directly to Seller.
Seller agrees that the transfer of the Assets to the
Intermediary shall expressly be subject to this Agreement
and that Seller shall remain liable for performance under
this Agreement and all documents to be delivered at
Closing to the same extent as if it had not appointed an
Intermediary. If Seller appoints an Intermediary, Buyer
shall not be obligated to pay any additional costs, or
incur any additional obligations, in the acquisition of
the Assets, and Seller shall indemnify and hold Buyer and
its affiliates harmless from and against all claims,
expenses, losses and liabilities resulting from the
Intermediary's participating in the purchase.
12.17 Further Assurances. After Closing, each party hereto, at
the request of the other, shall, from time to time,
without additional consideration execute and deliver such
further agreements and instruments of conveyance and take
such other action as the other party hereto may reasonably
request in order to convey and deliver the Assets to Buyer
and to otherwise accomplish the transactions contemplated
by the Agreement.
Seller acknowledges that Buyer will be required
to file financial statements with the Securities and
Exchange Commission ("SEC") with respect to the Assets,
which financial statements will necessarily have to be in
conformity with applicable SEC rules and regulations.
Seller covenants and agrees that it will take such actions
and provide such information and assistance and take such
steps as shall be deemed reasonably necessary by Buyer for
Buyer to make such filing(s) on a timely basis,
including, but not limited to, access to the internal
accounting of Seller relating to the Assets and the
cooperation of Seller's outside auditors. All costs and
expenses directly associated to Seller's efforts in
complying with this provision shall be borne in full by
Buyer.
12.18 No Punitive Damages. Under no circumstances
shall either Party be liable to the other for any
indirect, consequential, unforseen, exemplary or punitive
damages of any nature.
12.19 Public Announcements. Prior to making any
public announcement or statement with respect to the
transactions contemplated by this Agreement, the party
desiring to make such public announcement or statement
shall consult with the other parties hereto and attempt to
(i) agree upon the text of a joint public announcement or
statement to be made by such parties or (ii) obtain
approval of the other party or parties hereto to the text
of a public announcement or statement to be made solely by
Seller or Buyer, as the case may be; provided, however, if
Buyer is required by law to make such public announcement
or statement, then the same may be made after notice to
but without the approval of Seller. Nothing herein shall
restrict Buyer from making any disclosure required by law
or rule of any stock exchange, including any disclosure in
the reports filed by a party with the Securities and
Exchange Commission.
EXECUTED on the day, month and year first above mentioned.
SELLER: BUYER:
LLOG EXPLORATION COMPANY FOREST OIL CORPORATION
By: /s/ Gerald A. Boelte By: /s/ V. Bruce Thompson
Gerald A. Boelte, President V. Bruce Thompson
Vice President and General Counsel
Signature Page to that certain Purchase and Sale Agreement, dated
January 6, 1998, by and between LLOG Exploration Company and
Forest Oil Corporation.
legforms\P&SA.foc.wpd
The following schedules have been intentionally omitted and will
be supplied to the Commission upon request:
Attachment A LLOG Exploration Company Active Project
List
Exhibit "A-1" Saturday Island Field
Exhibit "A-2" Tigre Lagoon Field
Exhibit "A-3" Deer Island Field
Exhibit "A-4" Bayou Postillion Field
Exhibit "A-5" Bayou Hebert Field
Exhibit "A-6" Chacahoula Field
Exhibit "A-7" East Lake Verret Field
Exhibit "A-8" East White Lake Field
Exhibit "A-9" Lirette Field
Exhibit "A-10" Magnolia Field
Exhibit "A-11" Manila Village Field
Exhibit "A-12" Point A La Hache Field
Exhibit "A-13" Twin Island Field
Exhibit "B" Forest Oil Corporation/LLOG Acquisition
Total by Field
Exhibit "C" Escrow Agreement
Exhibit "D" Assignment, Bill of Sale and Conveyance
Schedule 4.01(A)(6) Schedule of Required Consents and
Preferential Rights
Schedule 4.01(c) Schedule of Litigation
