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HomeMy WebLinkAbout965256STATE OF WYOMING COUNTY OF LINCOLN RECEIVED 6 /23 /zui2 at 2:22 PM RECEIVING 965256 BOOK: 788 PAGE: 233 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY ASSIGNMENT AND BILL OF SALE THIS ASSIGNMENT AND BILL OF SALE (this "Assignment") is by and between SM ENERGY COMPANY, a Delaware corporation, whose mailing address is 1775 Sherman Street, Suite 1200, Denver, Colorado 80203 "Assignor and VAQUERO PARTNERS I, L.P., a California limited partnership "Assignee whose mailing address is 5060 California Avenue, Suite 640, Bakersfield, CA 93309, and is effective as of 7:00 a.m. (Mountain Time) on January 1, 2012 (the "Effective Time See Section 3.1 for certain defined terms. ARTICLE I ASSIGNMENT 0233 Section 1.1 Assignment. Assignor, for Ten Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee, the receipt and sufficiency of which are acknowledged, hereby bargains, sells, assigns and delivers to Assignee all of Assignor's right, title and interest in and to the following assets (such assets, less and except the Excluded Assets, the "Assets (a) all oil and gas leases and mineral interests described on Exhibit A and any leasehold estates, royalty interests, overriding royalty interests, net profits interests, and other rights and interests to the oil and gas in place covered by such leases (the "Leases and any pooled acreage, communitized acreage or units arising on account of Leases being pooled, communitized or unitized into such units "Units (b) the oil, gas, casinghead gas, coal bed methane, condensate and other gaseous and liquid hydrocarbons or any combination thereof, sulphur extracted from hydrocarbons and all other lease substances "Hydrocarbons under the Leases and that may be produced and saved under or otherwise be allocated or attributed to the Leases; (c) the oil, gas, water or injection wells located on Leases or Units, whether producing, shut -in or temporarily abandoned, including those described on Exhibit B (the "Wells and including all of the personal property, equipment, fixtures and improvements used in connection therewith; (d) the unitization, pooling and communitization agreements, declarations, orders and the units created thereby relating to the properties and interests described in clauses (a) through (c) or to the production, gathering, treatment, processing, storage, sale, disposal and other handling of Hydrocarbons, if any, attributable to said properties and interests; 00234 (e) all equipment, machinery, fixtures and other tangible personal property and improvements located on or used or held for use in connection with the operation of the interests described in clauses (a) through (d) or the production, gathering, treatment, processing, storage, sale, disposal, and other handling of Hydrocarbons attributable thereto, including any wells, tanks, boilers, buildings, fixtures, injection facilities, saltwater disposal facilities, compression facilities, pumping units and engines, platforms, flow lines, pipelines, gathering systems, gas and oil treating facilities, machinery, power lines, telephone and telegraph lines, roads, and other appurtenances, improvements and facilities (all of the foregoing, collectively, the "Equipment"); (f) all surface leases, permits, rights -of -way, licenses, easements and other surface rights agreements used in connection with the production, gathering, treatment, processing, storage, sale, disposal and other handling of Hydrocarbons or produced water from the interests described in clauses (a) through (e) (collectively, the "Surface Contracts (g) all existing contracts and effective sales, purchase contracts, operating agreements, exploration agreements, development agreements, balancing agreements, farmout agreements, service agreements, transportation, processing, treatment or gathering agreements, equipment leases and other contracts, agreements and instruments, insofar as they relate to the properties and interests described in clauses (a) through (f) (collectively, the "Contracts and (h) to the extent transferable without payment of additional consideration, originals, to the extent in Assignor's possession, or copies of all the files, records and data relating to the items described in clauses (a) through (g) above, which records shall include, without limitation: lease records, well records, division order records, well files, title records (including abstracts of title, title opinions and memoranda, and title curative documents), engineering records, geological and geophysical data (including seismic data) and all technical evaluations, interpretative data and technical data and information relating to the Assets, correspondence, electronic data files (if any), maps, production records, electric logs, core data, pressure data, decline curves and graphical production curves, reserve reports, appraisals and accounting and Asset Tax records (collectively, the "Records EXCEPTING AND RESERVING to Assignor, however, all Excluded Assets. TO HAVE AND TO HOLD the Assets unto Assignee, its successors and assigns forever, subject, however, to the terms and conditions set forth herein. Section 1.2 Excluded Assets. The Assets do not include, and there is excepted, reserved and excluded from this Assignment, the following (collectively, the "Excluded Assets (a) all of Assignor's corporate minute books, financial records and other business records that relate to Assignor's business generally (including the ownership and operation of the Assets); (b) all trade credits, all accounts, receivables and all other proceeds, income or revenues attributable to the Assets with respect to any period of time prior to the Effective Time; 2 uu235 (c) subject to Section 6.3 of the Purchase Agreement, all rights and interests relating to the Assets (i) under any existing policy or agreement of insurance, (ii) under any bond or (iii) to any insurance or condemnation proceeds or awards arising, in each case, from acts, omissions or events, or damage to or destruction of property; (d) all Hydrocarbons produced and sold from the Assets with respect to all periods prior to the Effective Time; (e) all claims of Assignor or its Affiliates for refunds of or loss carry forwards with respect to (i) production or any other Taxes paid by Assignor or its Affiliates attributable to any period prior to the Effective Time, (ii) income Taxes paid by Assignor or its Affiliates or (iii) any Taxes attributable to the other Excluded Assets; (f) all personal computers and associated peripherals and all radio and telephone equipment; (g) all of Assignor's proprietary computer software, patents, trade secrets, copyrights, names, trademarks, logos and other intellectual property; (h) all documents and instruments of Assignor that may be protected by an attorney client privilege; (i) all data that cannot be disclosed to Assignee as a result of confidentiality arrangements under agreements with third parties; (j) all audit rights arising under any of the (i) Applicable Contracts or otherwise with respect to any period prior to the Effective Time or (ii) other Excluded Assets, except for any Imbalances; (k) all geophysical and other seismic and related technical data and information relating to the Assets to the extent that such geophysical and other seismic and related technical data and information is not transferable without payment of a fee or other penalty to any third party under any Contract and which Assignee has not separately agreed in writing to pay; (1) documents prepared or received by Assignor or its Affiliates with respect to (i) lists of prospective purchasers for the Assets, (ii) bids submitted by other prospective purchasers of the Assets, (iii) analyses by Assignor or its Affiliates of any bids submitted by any prospective purchaser, (iv) correspondence between or among Assignor, its representatives and any prospective purchaser other than Assignee, and (v) correspondence between Assignor or any of its representatives with respect to any of the bids, the prospective purchasers or the transactions contemplated by this Agreement; (m) a copy of all Records; (n) any offices, office leases and any office furniture or office supplies located in or on such offices or office leases; 3 contracts; Section 2.1 Disclaimers. ARTICLE II DISCLAIMERS; ASSUMPTION 4 00236 (o) any Applicable Contracts and Records that are related to Assets that are excluded pursuant to the provisions of Section 6.4(c)(ii), Section 6.4(d)(i) or Section 7.1(b)(iii) of the Purchase Agreement; (p) any Contracts that constitute master services agreements or similar (q) all rights -of -way and surface leases held or used in connection with the Assets operated by Assignor and all other similar rights and interests held or used in connection with the Assets operated by Assignor that are commonly held by an operator of properties similar to the Assets operated by Assignor; and (r) the assets and properties on Exhibit D. Section 1.3 Special Warranty of Title. EXCEPT AS EXPRESSLY PROVIDED IN THE PURCHASE AGREEMENT, ASSIGNOR DOES HEREBY BIND ITSELF, ITS SUCCESSORS AND ASSIGNS, TO WARRANT AND FOREVER DEFEND TITLE TO THE ASSETS UNTO ASSIGNEE AGAINST THE CLAIMS AND DEMANDS OF ALL PERSONS CLAIMING, OR TO CLAIM THE SAME, OR ANY PART THEREOF, BY, THROUGH, OR UNDER ASSIGNOR, BUT NOT OTHERWISE. (a) EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN ARTICLE III OF THE PURCHASE AGREEMENT, OR THE SPECIAL WARRANTY OF TITLE CONTAINED IN THIS ASSIGNMENT (I) ASSIGNOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, AND (II) ASSIGNOR EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING) TO ASSIGNEE OR ANY OF ASSIGNEE'S REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN PROVIDED TO ASSIGNEE BY ANY AGENT, CONSULTANT, REPRESENTATIVE OR ADVISOR OF ASSIGNOR OR ANY OF ITS AFFILIATES). (b) EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE III OF THE PURCHASE AGREEMENT, OR THE SPECIAL WARRANTY OF TITLE CONTAINED IN THIS ASSIGNMENT, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASSIGNOR EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO (I) TITLE TO ANY OF THE ASSETS, (II) THE CONTENTS, CHARACTER OR NATURE OF ANY REPORT OF ANY PETROLEUM ENGINEERING CONSULTANT, OR ANY ENGINEERING, GEOLOGICAL OR SEISMIC DATA OR INTERPRETATION, RELATING TO THE ASSETS, (III) THE QUANTITY, QUALITY OR RECOVERABILITY OF HYDROCARBONS IN OR FROM THE ASSETS, (IV) ANY ESTIMATES OF THE VALUE OF THE ASSETS OR FUTURE REVENUES GENERATED BY THE ASSETS, (V) THE ABILITY TO PRODUCE HYDROCARBONS FROM THE ASSETS, (VI) THE MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF THE ASSETS, (VII) THE CONTENT, CHARACTER OR NATURE OF ANY INFORMATION MEMORANDUM, REPORTS, BROCHURES, CHARTS OR STATEMENTS PREPARED BY ASSIGNOR OR THIRD PARTIES WITH RESPECT TO THE ASSETS, (VIII) ANY OTHER MATERIALS OR INFORMATION THAT MAY HAVE BEEN MADE AVAILABLE TO ASSIGNEE OR ANY ASSIGNEE'S REPRESENTATIVE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY DISCUSSION OR PRESENTATION RELATING THERETO AND (IX) ANY IMPLIED OR EXPRESS WARRANTY OF FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT. EXCEPT AS EXPRESSLY REPRESENTED OTHERWISE IN ARTICLE III OF THE PURCHASE AGREEMENT, ASSIGNOR FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, OF MERCHANTABILITY, FREEDOM FROM LATENT VICES OR DEFECTS, FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OF ANY ASSETS, RIGHTS OF A PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION OR RETURN OF CONSIDERATION, IT BEING EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES THAT ASSIGNEE SHALL BE DEEMED TO BE OBTAINING THE ASSETS IN THEIR PRESENT STATUS, CONDITION AND STATE OF REPAIR, "AS IS" AND "WHERE IS" WITH ALL FAULTS OR DEFECTS (KNOWN OR UNKNOWN, LATENT, DISCOVERABLE OR UNDISCOVERABLE), AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE. (c) OTHER THAN THOSE REPRESENTATIONS SET FORTH IN SECTION 3.12 OF THE PURCHASE AGREEMENT, ASSIGNOR HAS NOT AND WILL NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING ANY MATTER OR CIRCUMSTANCE RELATING TO ENVIRONMENTAL LAWS, THE RELEASE OF MATERIALS INTO THE ENVIRONMENT OR THE PROTECTION OF HUMAN HEALTH, SAFETY, NATURAL RESOURCES OR THE ENVIRONMENT, OR ANY OTHER ENVIRONMENTAL CONDITION OF THE ASSETS, AND NOTHING IN THIS AGREEMENT OR OTHERWISE SHALL BE CONSTRUED AS SUCH A REPRESENTATION OR WARRANTY, AND SUBJECT TO ASSIGNEE'S LIMITED RIGHTS UNDER SECTION 7.1 OF THE PURCHASE AGREEMENT, ASSIGNEE SHALL BE DEEMED TO BE TAKING THE ASSETS "AS IS" AND "WHERE IS" WITH ALL FAULTS FOR PURPOSES OF THEIR ENVIRONMENTAL CONDITION AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH ENVIRONMENTAL INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE. (d) ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 2.1 ARE "CONSPICUOUS" DISCLAIMERS FOR THE PURPOSE OF ANY APPLICABLE LAW. 5 u0237 00238 Section 2,2 Assumption. EXCEPT AS EXPRESSLY PROVIDED IN THE PURCHASE AGREEMENT, ASSIGNEE ASSUMES AND AGREES TO FULFILL, PERFORM, PAY AND DISCHARGE (OR CAUSE TO BE FULFILLED, PERFORMED, PAID OR DISCHARGED) ASSIGNEE'S ASSUMED OBLIGATIONS. Section 3.1 Defined Terms. ARTICLE III MISCELLANEOUS (a) Certain Defined Terms. As used in this Assignment, the following capitalized terms shall have the meanings set forth below: "Affiliate" means, with respect to Assignor or Assignee, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such Party. "Applicable Contracts" means all Contracts to which Assignor is a party and Assignee is not that primarily relate to the Assets and that will be binding on the Assets or Assignee after Closing, including, without limitation: farmin and farmout agreements; bottomhole agreements; crude oil, condensate and natural gas purchase and sale agreements; gathering, transportation and marketing agreements; hydrocarbon storage agreements; acreage contribution agreements; operating agreements (including, for the avoidance of doubt, Applicable Operating Agreements); balancing agreements; pooling declarations or agreements; unitization agreements; processing agreements; crossing agreements and other similar contracts and agreements, but excluding the Leases. "Applicable Operating Agreements" means, collectively, the joint operating agreements applicable to the Assets, and "Applicable Operating Agreement" means any of them. "Assumed Obligations" means with respect to the Assignee, all obligations and Liabilities, known or unknown, with respect to the Assets, regardless of whether such obligations or Liabilities arose prior to, on or after the Effective Time; provided, Assignee does not assume any obligations or Liabilities of Assignor attributable to the Assets to the extent that such obligations or Liabilities consist of any of the following: (i) attributable to or arise out of the ownership, use or operation of the Excluded Assets; or (ii) attributable to any Income Tax Liability or Franchise Tax Liability. "Closing" means the transfer by Assignor and the acceptance by Assignee of the Assets. "Control" and its derivatives mean, with respect to any person, the possession, directly or indirectly, of the power to exercise or determine the voting of more than 50% of the voting rights in a corporation, and, in the case of any other type of entity, the right to exercise or determine the voting of more than 50% of the equity interests having voting rights, or otherwise to direct or 6 2'3'9 cause the direction of the management and policies of such Person, whether by contract or otherwise. "Franchise Tax Liability" means any Tax imposed by a state on Assignor's or any of its Affiliates' gross or net income and /or capital for the privilege of engaging in business in that state that was or is attributable to Assignor's or any of its Affiliates' ownership of an interest in the Assets. "Income Tax Liability" means any Liability of Assignor or any of its Affiliates attributable to any federal, state or local income Tax measured by or imposed on the net income of Assignor or any of its Affiliates that was or is attributable to Assignor's or any of its Affiliates' ownership of an interest in or the operation of the Assets. "Purchase Agreement" means the Purchase and Sale Agreement among SM Energy Company, and Vaquero Partners I, L.P., dated as of March 28, 2012. "Taxes" means any and all federal, state, local, foreign and other taxes or other assessments, including, without limitation, all net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, profit share, license, lease, service, service use, value added, withholding, payroll, employment, excise, estimated severance, stamp, occupation, premium, property, windfall profit or other taxes of any kind whatsoever, together with any interests, penalties, additions to tax, fines or other additional amounts imposed thereon or related thereto, and the term "Tax" means any one of the foregoing Taxes. (b) Other Defined Terms. Other capitalized terms used in this Assignment and not otherwise defined herein and defined in the Purchase Agreement shall have the meanings given to such terms in the Purchase Agreement. Section 3.2 Additional Agreements. Assignor covenants and agrees to execute and deliver, or shall cause to be executed and delivered, from time to time such further instruments of conveyance and transfer, and shall take such other actions as Assignee may reasonably request, to convey and deliver the Assets to Assignee. Section 3.3 Successors and Assigns. This Assignment shall be binding upon and inure to the benefit of the Assignor, Assignee, and their respective successors and permitted assigns. Section 3.4 Governing Law. THIS ASSIGNMENT AND THE LEGAL RELATIONS AMONG THE PARTIES HERETO SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER CONSTRUCTION OF SUCH PROVISIONS TO THE LAWS OF ANOTHER JURISDICTION. ALL OF THE PARTIES CONSENT TO THE EXERCISE OF JURISDICTION IN PERSONAM BY THE COURTS OF THE STATE OF TEXAS FOR ANY DISPUTE. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE. Section 3.5 Exhibits. All Exhibits attached hereto are hereby made part hereof and incorporated herein by this reference. References in such Exhibits to instruments on file in the 7 public records are notice of such instruments for all purposes. Unless provided otherwise, all recording references in such exhibits are to the appropriate records of the counties in which the Assets are located. [Signature Page Follows.] 8 00240 Section 3.6 Separate Assignments. Where separate assignments of the Assets have been or will be executed for filing with, and approval by, applicable Governmental Authorities, any such separate assignments (a) shall evidence this Assignment and assignment of the applicable Assets herein made and shall not constitute any additional Assignment or assignment of such properties, (b) are not intended to modify, and shall not modify, any of the terms, covenants and conditions or limitations on warranties set forth in this Assignment and are not intended to create, and shall not create, any representations, warranties or additional covenants of or by Assignor to Assignee and (c) shall be deemed to contain all of the terms and provisions of this Assignment, as fully and to all intents and purposes as though the same were set forth at length in such separate assignments. Section 3.7 Counterparts. This Assignment may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one agreement. Section 3.8 Purchase Agreement. This Assignment is delivered subject to the terms and conditions of the Purchase Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the dates of the acknowledgments set forth below, to be effective, however, for all purposes, as of the Effective Time. ASSIGNOR: SM ENERGY COMPANY By: Kennet J. Knott, fee 'resident Business Development Land ASSIGNEE: VAQUERO PARTNERS I, L.P. SIGNATURE PAGE TO ASSIGNMENT AND BILL OF SALE By. Kenneth H. Hunter; President of Vaquero Energy, Inc., a California corporation, as General Partner 9 STATE OF COLORADO CITY COUNTY OF DENVER Notary Public State of Colorado Marin E Untiedt 1 ACKNOWLEDGMENT Mari Untiedt Not y Public, State of Colorado My commission expires Feb 12, 2015 00242 This instrument was acknowledged before me on the 14 day of May 2012, by Kenneth J. Knott, the Vice President, Business Development Land of SM Energy Company, a Delaware corporation, on behalf of said company. (SEAL) Attached to and made a part of that certain Assignment effective 1/1/2012 By and Between SM Energy Company (as Seller) and Vaquero Partners I, L.P. (as Buyer) STATE OF CALIFORNIA COUNTY OF KERN JENNIFER POSADA Commission 1904939 Notary Public California Kern County My Comm. Expires Sep 20, 2014 ACKNOWLEDGMENT ss. On May 15, 2012, before me, Jennifer Posada, a notary public, personally appeared Kenneth H. Hunter III, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Nota My commission expires: September 20, 2014 00243 8 ua 8 8 8 8 00244