Loading...
HomeMy WebLinkAbout877972 ASSIGNMENT, CONVEYANCE AND BILL OF SALE~ STATE OF WYOMING § § KNOW ALL MEN BY THESE ~:i(~EN'~I S ;',,:.i,':'/~:? v: ,'.'".t,~~'.'-~ CO~TY OF LINCOLN THAT, subject to the terms, reservations and conditions hereinafter set forth, CHOCTAW II OIL & GAS, LTD., a Texas limited pa~nership, whose address is 808 Travis, Suite 1700, Houston, Texas 77002 (hereinafter refe~ed to as "Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and other gogd and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby G~NT, BARGA~, SELL, CONVEY and ASSIGN unto NANCE PETROLEUM CO~ORATION, a Montana co¢oration, whose address is 550 No~h 31st Street, Suite 500, Billings, Montana 59011 (hereinafter referred to as "Assignee"), all of Assignor's right, title and interest in and to the following, other than the Excluded Assets defined in subparagraph (~ below (hereinafter referred to as the "Interests"): (a) All. of Assignor's interests, in and to the entire estates created by the leases, licenses, pmmits and other agreements described in Exhibit "A" (the "Leases") and the lands described in Exhibit "A" (the "Lands"), and including all of Assignor's interests in and to its oil and gas assets within the states of Monta'na, North Dakota, Wyoming, and Colorado whether correctly described herein unless specifically included within the Excluded Assets, together with (i) all rights, privileges, benefits and powers conferred upon the holder of the Leases with respect to the use and occupation of ihe surface of the Lands that may be necessary, convenient or incidental to the possession and enjoyment of the Leases, (ii) all rights in respect of any pooled, communitized, or unitized acreage located in whole or in pa~ within the Lands by virtue of the Leases, including rights to production from the pool, communitized area, or unit allocated to any Lease being a part thereof, regardless of whether such production is fi'om the Lands, (iii) all rights, 9ptions, titles and interests of Assignor granting Assignor the right to obtain, or otherwise earn interesB within the Lands no matter how earned, and (iv) all tenements, hereditaments and appu~enances belonging to any of the foregoing; (b) The undivided interests in and to all of the oil and gas wells, saltwater disposal wells and injection wells (the "Wells") as set forth in Exhibit "A" together with all hydrocarbons produced from the Wells and Leases and.all of the personal property, fixtures and improvements now or as of the Effective Time (as defined below) on the Lands, appu~enant thereto or used in connection therewith or with the production, treatment, sale or disposal of hydrocarbons or water produced therefl'om or attributable fl~e:reto and all other appu~enances thereunto belonging including, without J GWNC HOC-I AV~'"', blANC E ASGN.DOC limitation, all pipe, fittings and other equipment located in the Sydney, Montana yard, and any other Williston Basin yards; (c) The contracts and contractual rights, obligations and interests, including all farmout agreements, farmin agreements, drilling contracts, operating agreements, sales contracts, saltwater disposal agreements, division orders and transfer orders and other contracts or agreements covering or affecting any or all of the Leases and/or Lands (the "Contracts"); (d) The easements, licenses, authorizations, pernfits, rights of way, servitudes, surface leases, the building lease for the Sydney, Montana field office and similar rights and interests applicable to the ownership or operation of tlYe Wells; (e) Insofar as such pertain to the Leases, Lands, Wells and the other equipment, personal property, Contracts and other matters described herein, all books, records, reports, manuals, files, title documents, including correspondence, records of production maintenance, revenue, sales, expenses, warranties, lease files, land files, well flies, division order files, abstracts, title opinions, assignments, reports, and other written material relating to the Interests and in Assignor's possession, including without limitation, property records, contract files, operations files, copies of tax and accounting records (but excluding Federal income tax returns and records) and files, maps, core data, hydrocarbon analyses, well logs, mud logs, field studies, together with other files, contracts, and other records and data, including all geologic and geophysical data and seismic of. Assignor relating to th.e Interests (the "Records"); however, Assignor shall have no obligation to furnish Assignee any data or information which Assignor cannot provide to AsSignee because of third party restrictions; and (f) As used herein, "Excluded Assets" means (a) all trade credits and all accounts, instruments and general intangibles (as such terms are defined in the Texas Uniform Commercial Code) attributable to the Interests with respect to any period of time prior to the Effective Time; (b) all claims and Causes of action of Assignor (i) arising from acts, omissions or events, or damage to or destruction of property, occurring prior to the Effective Time, (ii), arising under or with respect to any contracts that are attributable to periods o:f time prior to the Effective Time (including claims for adjustments or refunds), or (iii) with respect to'any of the Excluded Assets; (c) all rights and interests of Assign, or (i) under any policy or agreement 'of insurance or indemnity, (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, occurring prior to the Effective Time; (d) all substances produced and sold from the Lands and Leases with respect to all periods prior to the Effective Time, together with all proceeds from or of such substances; (e) claims of Assignor for refunds of or loss carry forwards with respect to (i) production or any other taxes attributable to any period prior to fire Effective Time, (ii) income or franchise taxes, or (iii) any taxes attributable to fl~e Excluded Assets; (f) all -2- amounts due or payable to Assignor as adjustments to insurance premiums related to the Interests with respect to any periods prior to the Effective Time; (g) all proceeds, income or revem~es (and any security or other deposits made) attributable to (i) the Interests for any period prior to the Effective Time, or (ii) any Excluded Assets; (h) all personal computers and associated peripherals and all radio and telephone equipment except that which is located on the Wells; (i) all of Assignor's proprietary computer software, patents, trade secrets, copyrights, names, trademarks, logos and other intellectual property; (j) Assignor's interests in Blaine, Choteau and Hill Counties, Montana, which collectively comprise the Bearpaw Prospect; (k) all docmnents and instruments of Assignor that may be protected by an attorney-client privilege; (1) data that cannot be disclosed or assigned to Assignee as a result of confidentiality arrangements under agreements with persons unaffiliated with Assignor; (m) all audit rights'a, rising under a~ny contracts or otherwise with. respect to any period prior to the Effective Time or to any of the Excluded Assets; (n) all of Assignor's rolling stock, including, without limitation, nine (9) pickup trucks; and (o) all (i) agreements and correspondence between Assignor and its representatives and any affiliates thereof relating to the transactions Contemplated in this Agreement, (ii) lists of prospective purchasers for such transactions compiled by Assignor or its representatives, (iii) bids submitted by other prospective purchasers of the Interests, (iv) analyses by'Assignor or its representatives of any bids submitted by any prospective purchaser, (v) correspondence between or among .Assignor or its representatives, or either of their respective representatives, and any prospective purchaser other than Assignee, and (vi) correspondence between Assignor or its representatives, or any of their respective representatives with respect to any of the bids, the prospective purchasers, the engagement or activities of its representatives or the transaction_s contemplated in this Agreement. To have and to hold forever subject to the terms hereof. Assignee shall assume all of Assignor's plugging, replugging, abandonment, removal, disposal and restoration obligations associated with the Interests acquired hereunder. Such obligations being assumed shall include, but not be limited to, all necessary and proper plugging and abandonment and/or removal and disposal of all of the wells, whether pre-existing or drilled by Assignor, and all structures, personal property, and equipment located on or associated with the Leases, the necessary and proper capping and 'burying of all associated flow lines, and any necessary disposal of natur011y 6ccurring radioactive material (NORM) or asbestos except those matters which are asserted as Environmental Defects and which remain uncured. All plugging, replugging, abandonment, removal, disposal and restoration operations shall be in compliance with applicable laws, rules and regulations and conducted in a good and workmanlike manner. -3- Assignor and Assignee shall indemnify each other as follows: (1) Including any !'Environmental Claim" as defined in (3) hereinbelow, Assignee shall defend, indemnify and save and hold harmless Assignor against any and all costs, expenses, claims, demands and causes .of action of whatsoever kind or char- acter, including court costs and attorneys' fees, arising out of any operations conducted, commitment made or any action 'taken or omitted with respect to the Interests, which accrue or relate to times oaand after the Effective Time. (2) Excluding (i) any "Environmental Claim" as defined in (3) hereinbelow, Assignor shall defend, indemnify and save and hold harmless Assignee against any and all costs, expenses, claims, demands and causes of action of whatsoever kind or character, including court costs and attorneys' fees, arising out otrany operations conducted, commitment made or any action taken or omitted with respect to the Interests, which accrue or relate to times prior to the Effective Time. (3) Notwithstanding any terms contained in (1) and (2) above, but in furtherance of same, Assignee expressly agrees to fully and promptly pay, perform and discharge, defend, indemnify and hold Assignor harmless fi'om and against any and all costs, expenses, claims, demands and causes of action of whatsoever kind or character, including court costs and attorneys' fees, resulting from any "Environmental Claim" as hereinafter defined arising out of any operations conducted, commitment made or any action taken or omitted at any time, whether accruing or relating to times prior to or after the Effective Time, with respect to the Interests. For purposes of this paragraph "En- vironmental Claim" shall mean any claim, demand or cause of action asserted by any governmental agency or any person, corporation or other entity for personal injury (including sickness, disease or death), property damage or damage to the environment resulting from the discharge ori'elease of any chemical, material or emission into one or more of the environmental media at or in the vicinity of the Interests. (4) Notwithstanding tile provisions of Paragraph (3) above, if after the Closing, but in no event later than one (1) year after'the Closing Date, any third party other than Assignee asserts an Environmental Claim which occurred prior to the Effective Time and the cost to remediate same in accordance with applicable environmental laws exceeds Twenty Thousand and,No/100 Dollars ($20,000.00) ("Retained Environmental Liability"), Assignee may notif}, Assignor in writing to assume such claim relating to the Retained Environmental Liability in accordance with the terms of this Paragraph (4). Such written notice shall describe the details known to Assignee of the claim relating to the Retained Environmental Liability and Assignee shall concurrently fitrnish to Assignor all information available to Assignee relating to such claim. If Assignee timely notifies Assignor of such claim relating to a Retained Environmental Liability on or before one (1) year after the Closing Date;iAssignor shall retain the risk, cost, expense and liability related to such Retained Environmental Liability. It is agreed that Assignor and Assignee -4- will cooperate with each other'in connection with the disposition of the Retained Environmental Liability which shall require either (i) remediation, (ii) reacquisition of the affected Interests by Assignor (thking into consideration the Allocated Value therefor less net profits owed or received by Assignee and the value added by subsequent development or operations), or (iii) such other disposition as Assignor and Assignee shall mutually agree. However, for Interests which were operated by Assignor as of the Effective Time, if Assignor and Assignee are unable to agree upon the disposition of the Retained Environmental. Liability, Assignor shall be required to remediate same at its sole risk, cost, expense and liability in accordance with applicable environmental law and for non- operated Interests operated by Assignor as of the Effective Time, Assignor shall pay to Assignee the share of costs required to remediate the Retained Environmental Liability. Notwithstanding the foregoing, if the parties cannot agree on the cost to remediate a Retained Environmental Liability, such issue shall be submitted to binding arbitration. (5) THE INDEMNIFICATION, RELEASE AND ASSUMPTION PROVISIONS PROVIDED FOR IN THIS AGREEMENT SHALL BE APPLICABLE WHETHER OR NOT THE LOSSES, COSTS, EXPENSES AND DAMAGES IN QUESTION AROSE SOLELY OR IN PART FROM THE GROSS, ACTIVE, PASSIVE OR CONCURRENT NEGLIGENCE, OR OTHER FAULT OF ANY INDEMNIFIED PARTY. ASSIGNEE AND ASSIGNOR ACKNOWLEDGE THAT THIS STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS CONSPICUOUS. THE EXPRESS REPRESENTATIONS AND WARRANTIES OF ASSIGNOR CONTAINED IN THIS ASSIGNMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND ASSIGNOR EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES EXCEPT FOR TITLE AS HEREIN PROVIDED. WITHOUT LIMITATION OF THE FOREGOING, THE INTERESTS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE CONDITION, QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO THE MODELS OR SAMPLES OF MATERIALS, OR MERCHANTABILITY OF ANY EQUIPMENT OR ITS FITNESS FOR ANY PURPOSE, AND WITHOUT ANY OTHER EXPRESS, IMPLIED, STATUTORY, OR OTHER WARRANTY OR REPRESENTATION XVHATSOEVER. ASSIGNEE SHALL HAVE INSPECTED, OR WAIVED (AND UPON CLOSING SHALL BE DEEMED TO HAVE WAIVED) ITS RIGHT TO INSPECT THE INTERESTS FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE, INCLUDING, BUT NOT LIMITED TO, CONDITIONS SPECIFICALLY RELATED TO THE PRESENCE, RELEASE, OR DISPOSAL OF HAZARDOUS SUBSTANCES, -5- SOLID WASTES, ASBESTOS OR OTHER MANMADE FIBERS OR NATURALLY OCCURRING RADIOACTIVE MATERIALS ("NORM") IN, ON, OR UNDER THE INTERESTS. ASSIGNEE IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE INTERESTS, AND ASSIGNEE SHALL, EXCEPT AS PROVIDED OTHERWISE HEREIN, ACCEPT ALL OF THE SAME "AS IS, WHERE IS". WITHOUT LIMITATION OF THE FOREGOING, ASSIGNOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS, PROJECTIONS, INFORMATION, OR MATERIALS NOW HERETOFORE, OR HEREAFTER FURNISHED OR MADE AVAILABLE TO ASSIGNEE IN CONNECTION WITH THIS ASSIGNMENT, INCLUDING, WITHOUT LIMITATION, PRICING ASSUMPTIONS OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE INTERESTS OR THE ABILITY OR POTENTIAL OF THE INTERESTS TO PRODUCE HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE INTERESTS OR ANY OTHER MATERIALS FURNISHED OR MADE AVAILABLE TO ASSIGNEE BY ASSIGNOR, OR BY ASSIGNOR'S AGENTS OR REPRE- SENTATIVES. ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION, AND OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED BY ASSIGNOR OR OTHERWISE MADE AVAILABLE OR DISCLOSED TO ASSIGNEE ARE PROVIDED TO ASSIGNEE AS A CONVENIENCE AND SHALE NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST ASSIGNOR, AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT ASSIGNEE'S SOLE RISI~ TO THE MAXIMUM EXTENT PERMITTED BY LAW. This instrument is with sp'ecial warranty of title, by, through and under Assignor, but not otherwise. This instrument is made expressly subject to that certain Purchase and Sale Agreement dated September 28, 2001, by and between Assignor and Assignee (the "Purchase and Sale Agreement"). Assignor and Assignee agree that they shall execute and deliver to each other any other instrument necessary to accomplish the transaction contemplated by this 'Assig~nment. This instrument'shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, and all terms, provisions and reservations contained in this Assignment shall be deemed as covenants running with the land. This Assignment is being executed in several counterparts all of which are identical, except that to facilitate recordation, only that portion of Exhibit "A" which -6- contains specific descriptions of the Interests located in the recording jurisdiction in which the particular counterpart is to be recorded are included, and other portions of Exhibit "A" are included by reference only. All of such counterparts together shall constitute one and the same instrument. Complete copies of this Assignment containing the entire Exhibit A have been retained by Assignor and Assignee. EXECUTED this ~day of November, 2001, but'EFFECTIVE as of September 1, 2001 (the "Effective Time"). ASSIGNOR: CHOCTAW II OIL & GAS, L~D. By: Choctaw Corporation, its General Partner 'P;esident i ~ r., ASSIGNEE: NANCE PETROLEUM CORPORATION Ronald B. Santi, Vice President, Land -7- STATE OF TEXAS § COUNTY OF HARRIS § Th:is instrument was acknowledged before me on the. 29th day of November , 2001, by W. Russell Brown, Jr., President of Choctaw Corporation, general partner of CttOCTAW II OIL & GAS, LTD., a Texas limited partnership, on behalf of said partnership. ~ A. FRANK KLAM . ~ ............ J[ ~otary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF HARRIS § Th:is instrument was' 'acknowledged before me on the 29t:h day of November .!, 2001, by Ronald B. Santi, Vice President, Land of NANCE PETROLEUM CORPORATION, a Montana corporation, on behalf of said corporation. II ~? Mater, 10, 2oo4 /~ :__1~ Notary Public :in a'nd fur the State of Texas