DRILLING AND OPERATING AGREEMENT FOR ATLAS AMERICA PUBLIC #15-2006(B) L.P. Dated May 9, 2006
EXHIBIT
10.1
FOR
ATLAS
AMERICA PUBLIC #15-2006(B) L.P.
Dated
May 9, 2006
INDEX
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Section
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Page
#
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1.
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Assignment
of Well Locations; Representations and Indemnification Associated
with the
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Assignment
of the Lease; Designation of Additional Well Locations; Outside
Activities
Are
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Not
Restricted
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3
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2.
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Drilling
of ▇▇▇▇▇; Timing; Depth; Interest of Developer; Right to Substitute
Well
Locations
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4
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3.
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Operator
- Responsibilities in General; Covenants; Term
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6
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4.
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Operator’s
Charges for Drilling and Completing ▇▇▇▇▇; Payment; Completion
Determination;
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Dry
Hole Determination; Excess Funds and Cost Overruns-Intangible Drilling
Costs; Excess
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Funds
and Cost Overruns-Tangible Costs
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7
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5.
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Title
Examination of Well Locations; Developer’s Acceptance and Liability;
Additional Well Locations
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11
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6.
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Operations
Subsequent to Completion of the ▇▇▇▇▇; Fee Adjustments; Extraordinary
Costs;
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Pipelines;
Price Determinations; Plugging and Abandonment
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11
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7.
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Billing
and Payment Procedure with Respect to Operation of ▇▇▇▇▇; Disbursements;
Separate
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Account
for Sale Proceeds; Records and Reports; Additional
Information
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14
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8.
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Operator’s
Lien; Right to Collect from Oil or Gas Purchaser
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15
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9.
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Successors
and Assigns, Transfers; Appointment of Agent
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16
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10.
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Operator’s
Insurance; Subcontractors’’ Insurance; Operation’s
Liability
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17
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11.
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Internal
Revenue Code Election; Relationship of Parties; Right to Take Production
in Kind
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18
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12.
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Effect
of Force Majeure; Definition of Force Majeure; Limitation
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19
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13.
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Term
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20
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14.
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Governing
Law; Invalidity
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20
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15.
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Integration;
Written Amendment
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20
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16.
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Waiver
of Default or Breach
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20
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17.
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Notices
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21
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18.
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Interpretation
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21
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19.
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Counterparts
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21
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Signature
Page
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22
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Exhibit
A Description
of Leases and Initial Well Locations
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23
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Exhibits
A __ through A__ Maps
of Initial Well Locations
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Exhibit
B Form
of Assignment
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Exhibit
C Form
of Addendum
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2
THIS
AGREEMENT made this 9th.
day of
May, 2006, by and between ATLAS RESOURCES, LLC, a Pennsylvania limited liability
company (hereinafter referred to as “Atlas” or “Operator”),
and
ATLAS
AMERICA PUBLIC #15-2006(B) L.P., a Delaware limited partnership, (hereinafter
referred to as the “Developer”).
WITNESSETH
THAT:
WHEREAS,
the Operator, by virtue of the Oil and Gas Leases (the “Leases”) described on
Exhibit A attached to and made a part of this Agreement, has certain rights
to
develop the nine (9) initial well locations (the “Initial Well Locations”)
identified on the maps attached to and made a part of this Agreement as Exhibits
A-l through A-9;
WHEREAS,
the Developer, subject to the terms and conditions of this Agreement, desires
to
acquire certain of the Operator’s rights to develop the Initial Well Locations
and to provide for the development on the terms and conditions set forth
in this
Agreement of additional well locations (“Additional Well Locations”) which the
parties may from time to time designate; and
WHEREAS,
the Operator is in the oil and gas exploration and development business,
and the
Developer desires that Operator, as its independent contractor, perform certain
services in connection with its efforts to develop the aforesaid Initial
and
Additional Well Locations (collectively the “Well Locations”) and to operate the
▇▇▇▇▇ completed on the Well Locations, on the terms and conditions set forth
in
this Agreement;
NOW
THEREFORE, in consideration of the mutual covenants herein contained and
subject
to the terms and conditions hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
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1.
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Assignment
of Well Locations; Representations and Indemnification Associated
with the
Assignment of the Lease; Designation of Additional Well Locations;
Outside
Activities Are Not
Restricted.
|
| (a) |
Assignment
of Well Locations.
The Operator shall execute an assignment of an undivided percentage
of
Working Interest in the Well Location acreage for each well to the
Developer as shown on Exhibit A attached hereto, which assignment
shall be
limited to a depth from the surface to the deepest depth penetrated
at the
cessation of drilling operations.
|
The
assignment shall be substantially in the form of Exhibit B attached to and
made
a part of this Agreement. The amount of acreage included in each Initial
Well
Location and the configuration of the Initial Well Location are indicated
on the
maps attached as Exhibits A-l through A-9. The amount of acreage included
in
each Additional Well Location and the configuration of the Additional Well
Location shall be indicated on the maps to be attached as exhibits to the
applicable addendum to this Agreement as provided in sub-section (c)
below.
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(b)
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Representations
and Indemnification Associated with the Assignment of the
Lease.
The Operator represents and warrants to the Developer
that:
|
| (i) |
the
Operator is the lawful owner of the Lease and rights and interest
under
the Lease and of the personal property on the Lease or used in connection
with the Lease;
|
| (ii) |
the
Operator has good right and authority to sell and convey the rights,
interest, and property;
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3
| (iii) |
the
rights, interest, and property are free and clear from all liens
and
encumbrances; and
|
| (iv) |
all
rentals and royalties due and payable under the Lease have been duly
paid.
|
These
representations and warranties shall also be included in each recorded
assignment of the acreage included in each Initial Well Location and Additional
Well Location designated pursuant to sub-section (c) below, substantially
in the
manner set forth in Exhibit B.
The
Operator agrees to indemnify, protect and hold the Developer and its successors
and assigns harmless from and against all costs (including but not limited
to
reasonable attorneys’ fees), liabilities, claims, penalties, losses, suits,
actions, causes of action, judgments or decrees resulting from the breach
of any
of the above representations and warranties. It is understood and agreed
that,
except as specifically set forth above, the Operator makes no warranty or
representation, express or implied, as to its title or the title of the lessors
in and to the lands or oil and gas interests covered by said
Leases.
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(c)
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Designation
of Additional Well Locations.
If
the parties hereto desire to designate Additional Well Locations
to be
developed in accordance with the terms and conditions of this Agreement,
then the parties shall execute an addendum substantially in the
form of
Exhibit C attached to and made a part of this Agreement (Exhibit
“C”)
specifying:
|
| (i) |
the
undivided percentage of Working Interest and the Oil and Gas Leases
to be
included as Leases under this Agreement;
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| (ii) |
the
amount and configuration of acreage included in each Additional Well
Location on maps attached as exhibits to the addendum;
and
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| (iii) |
their
agreement that the Additional Well Locations shall be developed in
accordance with the terms and conditions of this
Agreement.
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(d)
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Outside
Activities Are Not Restricted.
It
is understood and agreed that the assignment of rights under the
Leases
and the oil and gas development activities contemplated by this
Agreement
relate only to the Initial Well Locations and the Additional Well
Locations. Nothing contained in this Agreement shall be interpreted
to
restrict in any manner the right of each of the parties to conduct
without
the participation of the other party any additional activities
relating to
exploration, development, drilling, production, or delivery of
oil and gas
on lands adjacent to or in the immediate vicinity of the Well Locations
or
elsewhere.
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2.
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Drilling
of ▇▇▇▇▇; Timing; Depth; Interest of Developer; Right to Substitute
Well
Locations.
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(a)
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Drilling
of ▇▇▇▇▇.
Operator, as Developer’s independent contractor, agrees to drill, complete
(or plug) and operate nine (9) oil and gas ▇▇▇▇▇ on the nine (9)
Initial
Well Locations in accordance with the terms and conditions of this
Agreement. Developer, as a minimum commitment, agrees to participate
in
and pay the Operator’s charges for drilling and completing the ▇▇▇▇▇ and
any extra costs pursuant to Section 4 in proportion to the share
of the
Working Interest owned by the Developer in the ▇▇▇▇▇ with respect
to all
initial ▇▇▇▇▇. It is understood and agreed that, subject to sub-section
(e) below, Developer does not reserve the right to decline participation
in the drilling of any of the initial ▇▇▇▇▇ to be drilled under
this
Agreement.
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4
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(b)
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Timing.
Operator shall begin drilling the first well within thirty (30)
days after
the date of this Agreement, and shall begin drilling each of the
other
initial ▇▇▇▇▇ for which payment is made pursuant to Section 4(b)
of this
Agreement before the close of the 90th
day after the close of the calendar year in which this Agreement
is
entered into by Operator and the Developer. Subject to the foregoing
time
limits, Operator shall determine the timing of and the order of
drilling
the Initial Well Locations.
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(c)
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Depth.
All of the ▇▇▇▇▇ to be drilled under this Agreement shall be:
|
| (i) |
drilled
and completed (or plugged) in accordance with the generally accepted
and
customary oil and gas field practices and techniques then prevailing
in
the geographical area of the Well Locations; and
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| (ii) |
drilled
to a depth sufficient to test thoroughly the objective formation
or the
deepest assigned depth, whichever is
less.
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(d)
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Interest
of Developer.
Except as otherwise provided in this Agreement, all costs, expenses,
and
liabilities incurred in connection with the drilling and other
operations
and activities contemplated by this Agreement shall be borne and
paid, and
all ▇▇▇▇▇, gathering lines of up to approximately 2,500 feet on
the Well
Location in connection with a natural gas well, equipment, materials,
and
facilities acquired, constructed or installed under this Agreement
shall
be owned, by the Developer in proportion to the share of the Working
Interest owned by the Developer in the ▇▇▇▇▇. Subject to the payment
of
lessor’s royalties and other royalties and overriding royalties, if any,
production of oil and gas from the ▇▇▇▇▇ to be drilled under this
Agreement shall be owned by the Developer in proportion to the
share of
the Working Interest owned by the Developer in the
▇▇▇▇▇.
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(e)
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Right
to Substitute Well Locations.
Notwithstanding the provisions of sub-section (a) above, if the
Operator
or Developer determines in good faith, with respect to any Well
Location,
before operations begin under this Agreement on the Well Location,
that it
would not be in the best interest of the parties to drill a well
on the
Well Location, then the party making the determination shall notify
the
other party of its determination and its basis for its determination
and,
unless otherwise instructed by Developer, the well shall not be
drilled.
This determination may be based on:
|
| (i) |
the
production or failure of production of any other ▇▇▇▇▇ which may
have been
recently drilled in the immediate area of the Well Location;
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| (ii) |
newly
discovered title defects; or
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| (iii) |
any
other evidence with respect to the Well Location as may be obtained.
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If
the
well is not drilled, then Operator shall promptly propose a new well location
(including all information for the Well Location as Developer may reasonably
request) to be substituted for the original Well Location. Developer shall
then
have seven (7) business days to either reject or accept the proposed new
well
location. If the new well location is rejected, then Operator shall promptly
propose another substitute well location pursuant to the provisions of this
sub-section.
Once
the
Developer accepts a substitute well location or does not reject it within
said
seven (7) day period, this Agreement shall terminate as to the original Well
Location and the substitute well location shall become subject to the terms
and
conditions of this Agreement.
5
3. Operator
- Responsibilities in General; Covenants; Term.
|
(a)
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Operator
- Responsibilities in General.
Atlas shall be the Operator of the ▇▇▇▇▇ and Well Locations subject
to
this Agreement and, as the Developer’s independent contractor, shall, in
addition to its other obligations under this Agreement do the following:
|
| (i) |
arrange
for drilling and completing the ▇▇▇▇▇ and, if a gas well, installing
the
necessary gas gathering line systems and connection facilities;
|
| (ii) |
make
the technical decisions required in drilling, testing, completing,
and
operating the ▇▇▇▇▇;
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| (iii) |
manage
and conduct all field operations in connection with the drilling,
testing,
completing, equipping, operating, and producing the
▇▇▇▇▇;
|
| (iv) |
maintain
all ▇▇▇▇▇, equipment, gathering lines if a gas well, and facilities
in
good working order during their useful lives; and
|
| (v) |
perform
the necessary administrative and accounting functions.
|
In
performing the work contemplated by this Agreement, Operator is an independent
contractor with authority to control and direct the performance of the details
of the work.
|
(b)
|
Covenants.
Operator covenants and agrees that under this
Agreement:
|
| (i) |
it
shall perform and carry on (or cause to be performed and carried
on) its
duties and obligations in a good, prudent, diligent, and workmanlike
manner using technically sound, acceptable oil and gas field practices
then prevailing in the geographical area of the Well Locations;
|
| (ii) |
all
drilling and other operations conducted by, for and under the control
of
Operator shall conform in all respects to federal, state and local
laws,
statutes, ordinances, regulations, and requirements;
|
| (iii) |
unless
otherwise agreed in writing by the Developer, all work performed
pursuant
to a written estimate shall conform to the technical specifications
set
forth in the written estimate and all equipment and materials installed
or
incorporated in the ▇▇▇▇▇ and facilities shall be new or used and
of good
quality;
|
| (iv) |
in
the course of conducting operations, it shall comply with all terms
and
conditions, other than any minimum drilling commitments, of the Leases
(and any related assignments, amendments, subleases, modifications
and
supplements);
|
| (v) |
it
shall keep the Well Locations and all ▇▇▇▇▇, equipment and facilities
located on the Well Locations free and clear of all labor, materials
and
other liens or encumbrances arising out of operations;
|
| (vi) |
it
shall file all reports and obtain all permits and bonds required
to be
filed with or obtained from any governmental authority or agency
in
connection with the drilling or other operations and activities;
and
|
6
| (vii) |
it
will provide competent and experienced personnel to supervise drilling,
completing (or plugging), and operating the ▇▇▇▇▇ and use the services
of
competent and experienced service companies to provide any third
party
services necessary or appropriate in order to perform its
duties.
|
|
(c)
|
Term.
Atlas shall serve as Operator under this Agreement until the earliest
of:
|
| (i) |
the
termination of this Agreement pursuant to Section 13;
|
| (ii) |
the
termination of Atlas as Operator by the Developer at any time in
the
Developer’s discretion, with or without cause on sixty (60) days’ advance
written notice to the Operator; or
|
| (iii) |
the
resignation of Atlas as Operator under this Agreement which may occur
on
ninety (90) days’ written notice to the Developer at any time after five
(5) years from the date of this Agreement, it being expressly understood
and agreed that Atlas shall have no right to resign as Operator before
the
expiration of the five-year period.
|
Any
successor Operator shall be selected by the Developer. Nothing contained
in this
sub-section shall relieve or release Atlas or the Developer from any liability
or obligation under this Agreement which accrued or occurred before Atlas’
removal or resignation as Operator under this Agreement. On any change in
Operator under this provision, the then present Operator shall deliver to
the
successor Operator possession of all records, equipment, materials and
appurtenances used or obtained for use in connection with operations under
this
Agreement and owned by the Developer.
|
4.
|
Operator’s
Charges for Drilling and Completing ▇▇▇▇▇; Payment; Completion
Determination; Dry Hole Determination; Excess Funds and Cost
Overruns-Intangible Drilling Costs; Excess Funds and Cost
Overruns-Tangible Costs.
|
|
(a)
|
Operator’s
Charges for Drilling and Completing ▇▇▇▇▇.
Each oil and gas well which is drilled and completed under this
Agreement
shall be drilled and completed on a Cost basis plus a nonaccountable,
fixed payment reimbursement of $15,000 per well for Developer’s
Participants’ share of Operator’s general and administrative overhead plus
15% of Cost and the nonaccountable fixed payment reimbursement
of $15,000
per well for Developer’s Participants’ share of Operator’s general and
administrative overhead. “Cost,” when used with respect to services, shall
mean the reasonable, necessary, and actual expenses incurred by
Operator
on behalf of Developer in providing the services under this Agreement,
determined in accordance with generally accepted accounting principles.
As
used elsewhere, “Cost” shall mean the price paid by Operator in an
arm’s-length transaction.
|
The
estimated price
for
each of the ▇▇▇▇▇ shall be set forth in an Authority for Expenditure (“AFE”)
which shall be attached to this Agreement as an Exhibit, and shall cover
all
ordinary costs which may be incurred in drilling and completing each well.
This
includes without limitation, site preparation, permits and bonds, roadways,
surface damages, power at the site, water, Operator’s overhead and profit,
rights-of-way, drilling rigs, equipment and materials, costs of title
examinations, logging, cementing, fracturing, casing, meters (other than
utility
purchase meters), connection facilities, salt water collection tanks,
separators, siphon string, rabbit, tubing, an average of 2,500 feet of gathering
line per well in connection with a gas well, and geological and engineering
services.
7
|
(b)
|
Payment.
The Developer shall pay to Operator, in proportion to the share
of the
Working Interest owned by the Developer in the ▇▇▇▇▇, one hundred
percent
(100%) of the estimated Intangible Drilling Costs and Tangible
Costs, as
those terms are defined below, for drilling and completing all
initial
▇▇▇▇▇ on execution of this Agreement. Notwithstanding, Atlas’ payments for
its share of the estimated Tangible Costs, as that term is defined
below,
of drilling and completing all initial ▇▇▇▇▇ as the Managing General
Partner of the Developer shall be paid within five (5) business
days of
notice from Operator that the costs have been incurred. The Developer’s
payment shall be nonrefundable in all events in order to enable
Operator
to do the following:
|
| (i) |
commence
site preparation for the initial ▇▇▇▇▇;
|
| (ii) |
obtain
suitable subcontractors for drilling and completing the ▇▇▇▇▇ at
currently
prevailing prices; and
|
| (iii) |
insure
the availability of equipment and materials.
|
For
purposes of this Agreement, “Intangible Drilling Costs” shall mean those
expenditures associated with property acquisition and the drilling and
completion of oil and gas ▇▇▇▇▇ that under present law are generally accepted
as
fully deductible currently for federal income tax purposes. This includes:
| (i) |
all
expenditures made with respect to any well before the establishment
of
production in commercial quantities for wages, fuel, repairs, hauling,
supplies and other costs and expenses incident to and necessary for
the
drilling of the well and the preparation of the well for the production
of
oil or gas, that are currently deductible pursuant to Section 263(c)
of
the Internal Revenue Code of 1986, as amended (the “Code”), and Treasury
Reg. Section 1.612-4, which are generally termed "intangible drilling
and
development costs";
|
| (ii) |
the
expense of plugging and abandoning any well before a completion attempt;
and
|
| (iii) |
the
costs (other than Tangible Costs and Lease costs) to re-enter and
deepen
an existing well, complete the well to deeper formations or reservoirs,
or
plug and abandon the well if it is nonproductive from the targeted
deeper
formations or reservoirs.
|
“Tangible
Costs” shall mean those costs associated with property acquisition and the
drilling and completion of oil and gas ▇▇▇▇▇ which are generally accepted
as
capital expenditures pursuant to the provisions of the Code. This includes:
| (i) |
all
costs of equipment, parts and items of hardware used in drilling
and
completing a well;
|
| (ii) |
the
costs (other than Intangible Drilling Costs and Lease costs) to re-enter
and deepen an existing well, complete the well to deeper formations
or
reservoirs, or plug and abandon the well if it is nonproductive from
the
targeted deeper formations or reservoirs; and
|
| (iii) |
those
items necessary to deliver acceptable oil and gas production to purchasers
to the extent installed downstream
from the wellhead of any well and which are required to be capitalized
under the Code and its regulations.
|
8
With
respect to each additional well drilled on the Additional Well Locations,
if
any, the Developer shall pay to Operator, in proportion to the share of the
Working Interest owned by the Developer in the ▇▇▇▇▇, one hundred percent
(100%)
of the estimated Intangible Drilling Costs and Tangible Costs for drilling
and
completing the well on execution of the applicable addendum pursuant to Section
l(c) above. Notwithstanding, Atlas’ payments for its share of the estimated
Tangible Costs of drilling and completing all additional ▇▇▇▇▇ as the Managing
General Partner of the Developer shall be paid within five (5) business days
of
notice from Operator that the costs have been incurred. The Developer’s payment
shall be nonrefundable in all events in order to enable Operator to do the
following:
| (i) |
commence
site preparation;
|
| (ii) |
obtain
suitable subcontractors for drilling and completing the ▇▇▇▇▇ at
currently
prevailing prices; and
|
| (iii) |
insure
the availability of equipment and
materials.
|
Developer
shall pay, in proportion to the share of the Working Interest owned by the
Developer in the ▇▇▇▇▇, any extra costs incurred for each well pursuant to
sub-section (a) above within ten (10) business days of its receipt of Operator’s
statement for the extra costs.
| (c) |
Completion
Determination.
Operator shall determine whether or not to run the production casing
for
an attempted completion or to plug and abandon any well drilled under
this
Agreement. However, a well shall be completed only if Operator has
made a
good faith determination that there is a reasonable possibility of
obtaining commercial quantities of oil and/or
gas.
|
| (d) |
Dry
Hole Determination.
If
Operator determines at any time during the drilling or attempted
completion of any well drilled under this Agreement, in accordance
with
the generally accepted and customary oil and gas field practices
and
techniques then prevailing in the geographic area
of the Well Location that the well should not be completed, then
it shall
promptly and properly plug and abandon the
well.
|
| (e) |
Excess
Funds and Cost Overruns-Intangible Drilling Costs.
Any estimated Intangible Drilling Costs (which are the Intangible
Drilling
Costs set forth on the AFE) prepaid by Developer with respect to
any well
which exceed Operator’s price specified in sub-section (a) above for the
Intangible Drilling Costs of the well shall be retained by Operator
and
shall be applied, in proportion to the share of the Working Interest
owned
by the Developer in the ▇▇▇▇▇, to:
|
| (i) |
the
Intangible Drilling Costs for an additional well or ▇▇▇▇▇ to be drilled
on
the Additional Well Locations; or
|
| (ii) |
any
cost overruns owed by the Developer to Operator for Intangible Drilling
Costs on one or more of the other ▇▇▇▇▇ on the Well Locations.
|
Conversely,
if Operator’s price specified in sub-section (a) above for the Intangible
Drilling Costs of any well exceeds the estimated Intangible Drilling Costs
(which are the Intangible Drilling Costs set forth on the AFE) prepaid by
Developer for the well, then:
9
| (i) |
Developer
shall pay the additional price to Operator within five (5) business
days
after notice from Operator that the additional amount is due and
owing;
or
|
| (ii) |
Developer
and Operator may agree to delete or reduce Developer’s Working Interest in
one or more ▇▇▇▇▇ to be drilled under this Agreement which have not
yet
been spudded to provide funds to pay the additional amounts owed
by
Developer to Operator. If doing so results in any excess prepaid
Intangible Drilling Costs, then these funds shall be applied, in
proportion to the share of the Working Interest owned by the Developer
in
the ▇▇▇▇▇, to:
|
| (a) |
the
Intangible Drilling Costs for an additional well or ▇▇▇▇▇ to be drilled
on
the Additional Well Locations; or
|
| (b) |
any
cost overruns owed by the Developer to Operator for Intangible Drilling
Costs on one or more of the other ▇▇▇▇▇ on the Well Locations.
|
The
Exhibits to this Agreement with respect to the affected ▇▇▇▇▇ shall be amended
as appropriate.
|
(f)
|
Excess
Funds and Cost Overruns - Tangible Costs.
Any estimated Tangible Costs (which are the Tangible Costs set
forth on
the AFE) prepaid by Developer with respect to any well which exceed
Operator’s price specified in sub-section (a) above for the Tangible Costs
of the well shall be retained by Operator and shall be applied,
in
proportion to the share of the Working Interest owned by the Developer
in
the ▇▇▇▇▇, to:
|
| (i) |
the
Developer’s Participants’ share of the Tangible Costs for an additional
well or ▇▇▇▇▇ to be drilled on the Additional Well Locations; or
|
| (ii) |
any
cost overruns owed by the Developer to Operator for the Developer’s
Participants’ share of the Tangible Costs on one or more of the other
▇▇▇▇▇ on the Well Locations.
|
Conversely,
if Operator’s price specified in sub-section (a) above for the Developer’s
Participants’ share of Tangible Costs of any well exceeds the estimated Tangible
Costs (which are the Tangible Costs set forth on the AFE) prepaid by Developer
for the Developer’s Participants’ share of the Tangible Costs for the well,
then:
| (i) |
Developer
shall pay the additional price to Operator within ten (10) business
days
after notice from Operator that the additional price is due and owing;
or
|
| (ii) |
Developer
and Operator may agree to delete or reduce Developer’s Working Interest in
one or more ▇▇▇▇▇ to be drilled under this Agreement which have not
yet
been spudded to provide funds to pay the additional amounts owed
by
Developer to Operator. If doing so results in any excess prepaid
Tangible
Costs, then these funds shall be applied, in proportion to the share
of
the Working Interest owed by the Developer in the ▇▇▇▇▇, to:
|
| (a) |
the
Developer’s Participants’ share of the Tangible Costs for an additional
well or ▇▇▇▇▇ to be drilled on the Additional Well Locations; or
|
| (b) |
any
cost overruns owed by the Developer to Operator for the Developer’s
Participants’ share of the Tangible Costs on one or more of the other
▇▇▇▇▇ on the Well Locations.
|
10
| (iii) |
The
Developer’s Participants’ share of the Tangible Costs of all of the ▇▇▇▇▇
drilled under this Agreement and any additional ▇▇▇▇▇ to be drilled
on the
Additional Well Locations under any Addendum to this Agreement is
ten
percent (10%) of the total price prepaid by Developer to Operator
pursuant
to Section 4(b) of this Agreement or any Addendum hereto. The Developer’s
Participants’ share of the Tangible Costs of any one well drilled under
this Agreement shall be determined subject to the preceding sentence,
taking into account the Developer’s share of all of the Tangible Costs of
all of the ▇▇▇▇▇ to be drilled under this Agreement and any Addendum
hereto.
|
The
Exhibits to this Agreement with respect to the affected ▇▇▇▇▇ shall be amended
as appropriate.
|
5.
|
Title
Examination of Well Locations, Developer’s Acceptance and Liability;
Additional Well Locations.
|
|
(a)
|
Title
Examination of Well Locations, Developer’s Acceptance and
Liability.
The Developer acknowledges that Operator has furnished Developer
with the
title opinions identified on Exhibit A, and other documents and
information which Developer or its counsel has requested in order
to
determine the adequacy of the title to the Initial Well Locations
and
leased premises subject to this Agreement. The Developer accepts
the title
to the Initial Well Locations and leased premises and acknowledges
and
agrees that, except for any loss, expense, cost, or liability caused
by
the breach of any of the warranties and representations made by
the
Operator in Section l(b), any loss, expense, cost or liability
whatsoever
caused by or related to any defect or failure of the title shall
be the
sole responsibility of and shall be borne entirely by the
Developer.
|
|
(b)
|
Additional
Well Locations.
Before beginning drilling of any well on any Additional Well Location,
Operator shall conduct, or cause to be conducted, a title examination
of
the Additional Well Location, in order to obtain appropriate abstracts,
opinions and certificates and other information necessary to determine
the
adequacy of title to both the applicable Lease and the fee title
of the
lessor to the premises covered by the Lease. The results of the
title
examination and such other information as is necessary to determine
the
adequacy of title for drilling purposes shall be submitted to the
Developer for its review and acceptance. No drilling on the Additional
Well Locations shall begin until the title has been accepted in
writing by
the Developer. After any title has been accepted by the Developer,
any
loss, expense, cost, or liability whatsoever, caused by or related
to any
defect or failure of the title shall be the sole responsibility
of and
shall be borne entirely by the Developer, unless such loss, expense,
cost, or liability was caused by the breach of any of the warranties
and
representations made by the
Operator
in
Section l(b).
|
|
6.
|
Operations
Subsequent to Completion of the ▇▇▇▇▇; Fee Adjustments; Extraordinary
Costs; Pipelines; Price Determinations; Plugging and
Abandonment.
|
|
(a)
|
Operations
Subsequent to Completion of the ▇▇▇▇▇.
Beginning with the month in which a well drilled under this Agreement
begins to produce, Operator shall be entitled to an operating fee
of $285
per month for each well being operated under this Agreement,
proportionately reduced to the extent the Developer owns less than
100% of
the Working Interest in the ▇▇▇▇▇. This fee shall be in lieu of
any direct
charges by Operator for its services or the provision by Operator
of its
equipment for normal superintendence and maintenance of the ▇▇▇▇▇
and
related pipelines and facilities.
|
The
operating fees shall cover all normal, regularly recurring operating expenses
for the production, delivery and sale of natural gas, including without
limitation:
11
| (i) |
well
tending, routine maintenance and adjustment;
|
| (ii) |
reading
meters, recording production, pumping, maintaining appropriate books
and
records;
|
| (iii) |
preparing
reports to the Developer and government agencies; and
|
| (iv) |
collecting
and disbursing revenues.
|
The
operating fees shall not cover costs and expenses related to the following:
| (i) |
the
production and sale of oil;
|
| (ii) |
the
collection and disposal of salt water or other liquids produced by
the
▇▇▇▇▇;
|
| (iii) |
the
rebuilding of access roads; and
|
| (iv) |
the
purchase of equipment, materials or third party services;
|
which,
subject to the provisions of sub-section (c) of this Section 6, shall be
paid by
the Developer in proportion to the share of the Working Interest owned by
the
Developer in the ▇▇▇▇▇.
Any
well
which is temporarily abandoned or shut-in continuously for the entire month
shall not be considered a producing well for purposes of determining the
number
of ▇▇▇▇▇ in the month subject to the operating fee.
|
(b)
|
Fee
Adjustments.
The monthly operating fee set forth in sub-section (a) above may
be
adjusted by Operator annually, as of the first day of January (the
“Adjustment Date”) of each year, beginning January 1, 2008. Such
adjustment, if any, shall not exceed the percentage increase in
the
average weekly earnings of “Crude Petroleum, Natural Gas, and Natural Gas
Liquids” workers, as published by the U.S. Department of Labor, Bureau of
Labor Statistics, and shown in Employment and Earnings Publication,
Monthly Establishment Data, Hours and Earning Statistical Table
C-2, Index
Average Weekly Earnings of “Crude Petroleum, Natural Gas, and Natural Gas
Liquids” workers, SIC Code #131-2, or any successor index thereto, since
January l, 2006, in the case of the first adjustment, and since
the
previous Adjustment Date, in the case of each subsequent adjustment.
In
addition, the monthly operating fee set forth in sub-section (a)
above for
any given well or ▇▇▇▇▇ being operated under this Agreement may
be
adjusted at any time in the Operator’s discretion to an amount equal to a
competitive rate in the area in which the well(s) are
situated.
|
|
(c)
|
Extraordinary
Costs.
Without the prior written consent of the Developer, pursuant to
a written
estimate submitted by Operator, Operator shall not undertake any
single
project or incur any extraordinary cost with respect to any well
being
produced under this Agreement reasonably estimated to result in
an
expenditure of more than $5,000, unless the project or extraordinary
cost
is necessary for the following:
|
| (i) |
to
safeguard persons or property; or
|
| (ii) |
to
protect the well or related facilities in the event of a sudden emergency.
|
In
no
event, however, shall the Developer be required to pay for any project or
extraordinary cost arising from the negligence or misconduct of Operator,
its
agents, servants, employees, contractors, licensees, or invitees.
12
All
extraordinary costs incurred and the cost of projects undertaken with respect
to
a well being produced shall be billed at the invoice cost of third-party
services performed or materials purchased together with a reasonable charge
by
Operator for services performed directly by it, in proportion to the share
of
the Working Interest owned by the Developer in the ▇▇▇▇▇. Operator shall
have
the right to require the Developer to pay in advance of undertaking any project
all or a portion of the estimated costs of the project in proportion to the
share of the Working Interest owned by the Developer in the ▇▇▇▇▇.
|
(d)
|
Pipelines.
Developer shall have no interest in the pipeline gathering system,
which
gathering system shall remain the sole property of Operator or
its
Affiliates and shall be maintained at their sole cost and
expense.
|
|
(e)
|
Price
Determinations.
Notwithstanding anything herein to the contrary, the Developer
shall pay
all costs in proportion to the share of the Working Interest owned
by the
Developer in the ▇▇▇▇▇ with respect to obtaining price determinations
under and otherwise complying with the Natural Gas Policy Act of
1978 and
the implementing state regulations. This responsibility shall include,
without limitation, preparing, filing, and executing all applications,
affidavits, interim collection notices, reports and other documents
necessary or appropriate to obtain price certification, to effect
sales of
natural gas, or otherwise to comply with the Act and the implementing
state regulations.
|
|
Operator
agrees to furnish the information and render the assistance as
the
Developer may reasonably request in order to comply with the Act
and the
implementing state regulations without charge for services performed
by
its employees.
|
|
(f)
|
Plugging
and Abandonment.
The Developer shall have the right to direct Operator to plug and
abandon
any well that has been completed under this Agreement as a producer.
In
addition, Operator shall not plug and abandon any well that has
been
drilled and completed as a producer before obtaining the written
consent
of the Developer. However, if the Operator in accordance with the
generally accepted and customary oil and gas field practices and
techniques then prevailing in the geographic area of the well location,
determines that any well should be plugged and abandoned and makes
a
written request to the Developer for authority to plug and abandon
the
well and the Developer fails to respond in writing to the request
within
forty-five (45) days following the date of the request, then the
Developer
shall be deemed to have consented to the plugging and abandonment
of the
well.
|
All
costs
and expenses related to plugging and abandoning the ▇▇▇▇▇ which have been
drilled and completed as producing ▇▇▇▇▇ shall be borne and paid by the
Developer in proportion to the share of the Working Interest owned by the
Developer in the ▇▇▇▇▇. Also, at any time after one (1) year from the date
each
well drilled and completed is placed into production, Operator shall have
the
right to deduct each month from the proceeds of the sale of the production
from
the well up to $200, in proportion to the share of the Working Interest owned
by
the Developer in the well, for the purpose of establishing a fund to cover
the
estimated costs of plugging and abandoning the well. All of these funds shall
be
deposited in a separate interest bearing escrow account for the account of
the
Developer, and the total amount so retained and deposited shall not exceed
Operator’s reasonable estimate of Developer’s share of the costs of plugging and
abandoning the well.
13
|
7.
|
Billing
and Payment Procedure with Respect to Operation of ▇▇▇▇▇; Disbursements;
Separate Account for Sale Proceeds; Records and Reports; Additional
Information.
|
|
(a)
|
Billing
and Payment Procedure with Respect to Operation of
▇▇▇▇▇.
Operator shall promptly and timely pay and discharge on behalf
of the
Developer, in proportion to the share of the Working Interest owned
by the
Developer in the ▇▇▇▇▇ the following:
|
| (i) |
all
expenses and liabilities payable and incurred by reason of its operation
of the ▇▇▇▇▇ in accordance with this Agreement , such as severance
taxes,
royalties, overriding royalties, operating fees, and pipeline gathering
charges; and
|
| (ii) |
any
third-party invoices rendered to Operator with respect to costs and
expenses incurred in connection with the operation of the ▇▇▇▇▇.
|
Operator,
however, shall not be required to pay and discharge any of the above costs
and
expenses which are being contested in good faith by Operator.
Operator
shall:
| (i) |
deduct
the foregoing costs and expenses from the Developer’s share of the
proceeds of the oil and/or gas sold from the ▇▇▇▇▇; and
|
| (ii) |
keep
an accurate record of the Developer’s account, showing expenses incurred
and charges and credits made and received with respect to each well.
|
If
the
proceeds are insufficient to pay the costs and expenses, then Operator shall
promptly and timely pay and discharge the costs and expenses, in proportion
to
the share of the Working
Interest owned by the Developer in the ▇▇▇▇▇, and prepare and submit an invoice
to the Developer each month for the costs and expenses. The invoice shall
be
accompanied by the form of statement specified in sub-section (b) below,
and
shall
be
paid by the Developer within ten (10) business days of its receipt.
|
(b)
|
Disbursements.
Operator shall disburse to the Developer, on a monthly basis, the
Developer’s share of the proceeds received from the sale of oil and/or gas
sold from the ▇▇▇▇▇ operated under this Agreement,
less:
|
| (i) |
the
amounts charged to the Developer under sub-section (a); and
|
| (ii) |
the
amount, if any, withheld by Operator for future plugging costs pursuant
to
sub-section (f) of Section 6.
|
Each
disbursement made and/or invoice submitted pursuant to sub-section (a) above
shall be accompanied by a statement itemizing with respect to each well:
| (i) |
the
total production of oil and/or gas since the date of the last disbursement
or invoice billing period, as the case may be, and the Developer’s share
of the production;
|
| (ii) |
the
total proceeds received from any sale of the production, and the
Developer’s share of the proceeds;
|
| (iii) |
the
costs and expenses deducted from the proceeds and/or being billed
to the
Developer pursuant to sub-section (a) above;
|
14
| (iv) |
the
amount withheld for future plugging costs; and
|
| (v) |
any
other information as Developer may reasonably request, including
without
limitation copies of all third-party invoices listed on the statement
for
the period.
|
| (c) |
Separate
Account for Sale Proceeds. Operator
agrees to deposit all proceeds from the sale of oil and/or gas sold
from
the ▇▇▇▇▇ operated under this Agreement in a separate checking account
maintained by Operator. This account shall be used solely for the
purpose
of collecting and disbursing funds constituting proceeds from the
sale of
production under this Agreement.
|
| (d) |
Records
and Reports.
In
addition to the statements required under sub-section (b) above,
Operator,
within seventy-five (75) days after the completion of each well drilled,
shall furnish the Developer with a detailed statement itemizing with
respect to the well the total costs and charges under Section 4(a)
and the
Developer’s share of the costs and charges, and any information as is
necessary to enable the Developer:
|
| (i) |
to
allocate any extra costs incurred with respect to the well between
Tangible Costs and Intangible Drilling Costs; and
|
| (ii) |
to
determine the amount of investment tax credit or marginal well production
tax credit, if applicable.
|
| (e) |
Additional
Information. Operator
shall promptly furnish the Developer with any additional information
as it
may reasonably request, including without limitation geological,
technical, and financial information, in the form as may reasonably
be
requested, pertaining to any phase of the operations and activities
governed by this Agreement. The Developer and its authorized employees,
agents and consultants, including independent accountants shall,
at
Developer’s sole cost and expense:
|
| (i) |
on
at least ten (10) days’ written notice have access during normal business
hours to all of Operator’s records pertaining to operations, including
without limitation, the right to audit the books of account of Operator
relating to all receipts, costs, charges, expenses and disbursements
under
this Agreement, including information regarding the separate account
required under sub-section (c); and
|
| (ii) |
have
access, at its sole risk, to any ▇▇▇▇▇ drilled by Operator under
this
Agreement at all times to inspect and observe any machinery, equipment
and
operations.
|
8. Operator’s
Lien; Right to Collect From Oil or Gas Purchaser.
|
(a)
|
Operator’s
Lien. To
secure the payment of all sums due from Developer to Operator under
the
provisions of this Agreement the Developer grants Operator a first
and
preferred lien on and security interest in the
following:
|
| (i) |
the
Developer’s interest in the Leases covered by this Agreement;
|
| (ii) |
the
Developer’s interest in oil and gas produced under this Agreement and its
proceeds from the sale of the oil and gas; and
|
| (iii) |
the
Developer’s interest in materials and equipment under this
Agreement.
|
15
|
(b)
|
Right
to Collect From Oil or Gas Purchaser. If
the Developer fails to timely pay any amount owing under this Agreement
by
it to the Operator, then Operator, without prejudice to other existing
remedies, may collect and retain from any purchaser or purchasers
of oil
or gas the Developer’s share of the proceeds from the sale of the oil and
gas until the amount owed by the Developer, plus twelve percent
(12%)
interest on a per annum basis, and any additional costs (including
without
limitation actual attorneys’ fees and costs) resulting from the
delinquency, has been paid. Each purchaser of oil or gas shall
be entitled
to rely on Operator’s written statement concerning the amount of any
default.
|
9. Successors
and Assigns; Transfers; Appointment of Agent.
|
(a)
|
Successors
and Assigns.
This Agreement shall be binding on and inure to the benefit of
the
undersigned parties and their respective successors and permitted
assigns.
However, without the prior written consent of the Developer, the
Operator
may not assign, transfer, pledge, mortgage, hypothecate, sell or
otherwise
dispose of any of its interest in this Agreement, or any of the
rights or
obligations under this Agreement. Notwithstanding, this consent
shall not
be required in connection with:
|
| (i) |
the
assignment of work to be performed for Operator by subcontractors,
it
being understood and agreed, however, that any assignment to Operator’s
subcontractors shall not in any manner relieve or release Operator
from
any of its obligations and responsibilities under this Agreement;
|
| (ii) |
any
lien, assignment, security interest, pledge or mortgage arising under
Operator’s present or future financing arrangements; or
|
| (iii) |
the
liquidation, merger, consolidation, or other corporate reorganization
or
sale of substantially all of the assets of
Operator.
|
Further,
in order to maintain uniformity of ownership in the ▇▇▇▇▇, production,
equipment, and leasehold interests covered by this Agreement, and
notwithstanding any other provisions to the contrary, the Developer shall
not,
without the prior written consent of Operator, sell, assign, transfer, encumber,
mortgage or otherwise dispose of any of its interest in the ▇▇▇▇▇, production,
equipment or leasehold interests covered by this Agreement unless the
disposition encompasses either:
| (i) |
the
entire interest of the Developer in all ▇▇▇▇▇, production, equipment
and
leasehold interests subject to this Agreement; or
|
| (ii) |
an
equal undivided interest in all such ▇▇▇▇▇, production, equipment,
and
leasehold interests.
|
|
(b)
|
Transfers.
Subject to the provisions of sub-section (a) above, any sale, encumbrance,
transfer or other disposition made by the Developer of its interests
in
the ▇▇▇▇▇, production, equipment, and/or leasehold interests covered
by
this Agreement shall be made:
|
| (i) |
expressly
subject to this Agreement;
|
| (ii) |
without
prejudice to the rights of the Operator; and
|
| (iii) |
in
accordance with and subject to the provisions of the
Lease.
|
16
|
(c)
|
Appointment
of Agent. If
at any time the interest of the Developer is divided among or owned
by
co-owners, Operator may, at its discretion, require the co-owners
to
appoint a single trustee or agent with full authority to do the
following:
|
| (i) |
receive
notices, reports and distributions of the proceeds from production;
|
| (ii) |
approve
expenditures;
|
| (iii) |
receive
▇▇▇▇▇▇▇▇ for and approve and pay all costs, expenses and liabilities
incurred under this Agreement;
|
| (iv) |
exercise
any rights granted to the co-owners under this Agreement;
|
| (v) |
grant
any approvals or authorizations required or contemplated by this
Agreement;
|
| (vi) |
sign,
execute, certify, acknowledge, file and/or record any agreements,
contracts, instruments, reports, or documents whatsoever in connection
with this Agreement or the activities contemplated by this Agreement;
and
|
| (vii) |
deal
generally with, and with power to bind, the co-owners with respect
to all
activities and operations contemplated by this
Agreement.
|
However,
all the co-owners shall continue to have the right to enter into and execute
all
contracts or agreements for their respective shares of the oil and gas produced
from the ▇▇▇▇▇ drilled under this Agreement in accordance with sub-section
(c)
of Section 11.
10. Operator’s
Insurance; Subcontractors’ Insurance; Operator’s
Liability.
|
(a)
|
Operator’s
Insurance.
Operator shall obtain and maintain at its own expense so long as
it is
Operator under this Agreement all required Workmen’s Compensation
Insurance and comprehensive general public liability insurance
in amounts
and coverage not less than $1,000,000 per person per occurrence
for
personal injury or death and $1,000,000 for property damage per
occurrence, which shall include coverage for blow-outs and total
liability
coverage of not less than $10,000,000.
|
Subject
to the above limits, the Operator’s general public liability insurance shall be
in all respects comparable to that generally maintained in the industry with
respect to services of the type to be rendered and activities of the type
to be
conducted under this Agreement. Operator’s general public liability insurance
shall, if permitted by Operator’s insurance carrier:
| (i) |
name
the Developer as an additional insured party; and
|
| (ii) |
provide
that at least thirty (30) days’ prior notice of cancellation and any other
adverse material change in the policy shall be given to the
Developer.
|
However,
the Developer shall reimburse Operator for the additional cost, if any, of
including it as an additional insured party under the Operator’s insurance.
17
Current
copies of all policies or certificates of the Operator’s insurance coverage
shall be delivered to the Developer on request. It is understood and agreed
that
Operator’s insurance coverage may not adequately protect the interests of the
Developer and that the Developer shall carry at its expense the excess or
additional general public liability, property damage, and other insurance,
if
any, as the Developer deems appropriate.
|
(b)
|
Subcontractors’
Insurance.
Operator shall require all of its subcontractors to carry all required
Workmen’s Compensation Insurance and to maintain such other insurance,
if
any, as Operator in its discretion may
require.
|
|
(c)
|
Operator’s
Liability.
Operator’s liability to the Developer as Operator under this Agreement
shall be limited to, and Operator shall indemnify the Developer
and hold
it harmless from, claims, penalties, liabilities, obligations,
charges,
losses, costs, damages, or expenses (including but not limited
to
reasonable attorneys’ fees) relating to, caused by or arising out
of:
|
| (i) |
the
noncompliance with or violation by Operator, its employees, agents,
or
subcontractors of any local, state or federal law, statute, regulation,
or
ordinance;
|
| (ii) |
the
negligence or misconduct of Operator, its employees, agents or
subcontractors; or
|
| (iii) |
the
breach of or failure to comply with any provisions of this
Agreement.
|
11. Internal
Revenue Code Election; Relationship of Parties; Right to Take Production
in
Kind.
|
(a)
|
Internal
Revenue Code Election.
With respect to this Agreement, each of the parties elects under
Section
761(a) of the Internal Revenue Code of 1986, as amended, to be
excluded
from the provisions of Subchapter K of Chapter 1 of Subtitle A
of the
Internal Revenue Code of 1986, as amended. If the income tax laws
of the
state or states in which the property covered by this Agreement
is located
contain, or may subsequently contain, a similar election, each
of the
parties agrees that the election shall be exercised.
|
Beginning
with the first taxable year of operations under this Agreement, each party
agrees that the deemed election provided by Section 1.761-2(b)(2)(ii) of
the
Regulations under the Internal Revenue Code of 1986, as amended, will apply;
and
no party will file an application under Section 1.761-2 (b)(3)(i) of the
Regulations to revoke the election. Each party agrees to execute the documents
and make the filings with the appropriate governmental authorities as may
be
necessary to effect the election.
|
(b)
|
Relationship
of Parties.
It
is not the intention of the parties to create, nor shall this Agreement
be
construed as creating, a mining or other partnership or association
or to
render the parties liable as partners or joint ventures for any
purpose.
Operator shall be deemed to be an independent contractor and shall
perform
its obligations as set forth in this Agreement or as otherwise
directed by
the Developer.
|
|
(c)
|
Right
to Take Production in Kind.
Subject to the provisions of Section 8 above, the Developer shall
have the
exclusive right to sell or dispose of its proportionate share of
all oil
and gas produced from the ▇▇▇▇▇ to be drilled under this Agreement,
exclusive of production:
|
18
| (i) |
that
may be used in development and producing operations;
|
| (ii) |
unavoidably
lost; and
|
| (iii) |
used
to fulfill any free gas obligations under the terms of the applicable
Lease or Leases.
|
Operator
shall not have any right to sell or otherwise dispose of the oil and gas.
The
Developer shall have the exclusive right to execute all contracts relating
to
the sale or disposition of its proportionate share of the production from
the
▇▇▇▇▇ drilled under this Agreement.
Developer
shall have no interest in any gas supply agreements of Operator, except the
right to receive Developer’s share of the proceeds received from the sale of any
gas or oil from ▇▇▇▇▇ developed under this Agreement. The Developer agrees
to
designate Operator or Operator’s designated bank agent as the Developer’s
collection agent in any contracts. On request, Operator shall assist Developer
in arranging the sale or disposition of Developer’s oil and gas under this
Agreement and shall promptly provide the Developer with all relevant information
which comes to Operator’s attention regarding opportunities for sale of
production.
If
Developer fails to take in kind or separately dispose of its proportionate
share
of the oil and gas produced under this Agreement, then Operator shall have
the
right, subject to the revocation at will by the Developer, but not the
obligation, to purchase the oil and gas or sell it to others at any time
and
from time to time, for the account of the Developer at the best price obtainable
in the area for the production. Notwithstanding, Operator shall have no
liability to Developer should Operator fail to market the production.
Any
purchase or sale by Operator shall be subject always to the right of the
Developer to exercise at any time its right to take in-kind, or separately
dispose of, its share of oil and gas not previously delivered to a purchaser.
Any purchase or sale by Operator of any other party’s share of oil and gas shall
be only for reasonable periods of time as are consistent with the minimum
needs
of the oil and gas industry under the particular circumstances, but in no
event
for a period in excess of one (1) year.
12. Effect
of Force Majeure; Definition of Force Majeure; Limitation.
| (a) |
Effect
of Force Majeure. If
Operator is rendered unable, wholly or in part, by force majeure
(as
defined below) to carry out any of its obligations
under this Agreement, including
but not limited to beginning the drilling of one or more ▇▇▇▇▇ by
the
applicable times set forth in Section 2(b), or any Addendum to this
Agreement, the obligations of the Operator, so far as it is affected
by
the force majeure, shall be suspended during but no longer than,
the
continuance of the force majeure. The
Operator shall give to the Developer prompt written notice of the
force
majeure with
reasonably full particulars concerning it. Operator shall use all
reasonable diligence to remove the force majeure as quickly as possible
to
the extent the same is within reasonable
control.
|
19
| (b) |
Definition
of Force Majeure. The
term “force majeure” shall mean an act of God, strike, lockout, or other
industrial disturbance, act of the public enemy, war, blockade, public
riot, lightning, fire, storm, flood, explosion, governmental restraint,
unavailability of drilling rigs, equipment or materials, plant shut-downs,
curtailments by purchasers and any other causes whether of the kind
specifically enumerated above or otherwise, which directly preclude
Operator’s performance under this Agreement and is not reasonably within
the control of the Operator including, but not limited to, the inability
of Operator to begin the drilling of the ▇▇▇▇▇ subject to this Agreement
by the applicable times set forth in Section 2(b) or in any Addendum
to
this Agreement due to decisions of third-party operators to delay
drilling
the ▇▇▇▇▇, poor weather conditions, inability to obtain drilling
permits,
access right to the drilling site or title
problems.
|
| (c) |
Limitation.
The
requirement that any force majeure shall be remedied with all reasonable
dispatch shall not require the settlement of strikes, lockouts, or
other
labor difficulty affecting the Operator, contrary to its wishes.
The
method of handling these difficulties shall be entirely within the
discretion of the Operator.
|
13. Term.
This
Agreement shall become effective when executed by Operator and the Developer.
Except as provided in sub-section (c) of Section 3, this Agreement shall
continue and remain in full force and effect for the productive lives of
the
▇▇▇▇▇ being operated under this Agreement.
14. Governing
Law; Invalidity.
| (a) |
Governing
Law. This
Agreement shall be governed by, construed and interpreted in accordance
with the laws of the Commonwealth of Pennsylvania.
|
| (b) |
Invalidity.
The
invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions of this Agreement,
and
this Agreement shall be construed in all respects as if the invalid
or
unenforceable provision were omitted.
|
15. Integration;
Written Amendment.
| (a) |
Integration.
This
Agreement, including the Exhibits to this Agreement, constitutes
and
represents the entire understanding and agreement of the parties
with
respect to the subject matter of this Agreement and supersedes all
prior
negotiations, understandings, agreements, and representations relating
to
the subject matter of this Agreement.
|
| (b) |
Written
Amendment. No
change, waiver, modification, or amendment of this Agreement shall
be
binding or of any
effect unless in writing duly
signed by the party against which the change, waiver, modification,
or
amendment is sought to be enforced.
|
16. Waiver
of Default or Breach.
No
waiver
by any party to any default of or breach by any other party under this Agreement
shall operate as a waiver of any future default or breach, whether of like
or
different character or nature.
20
17. Notices.
Unless
otherwise provided in this Agreement, all notices, statements, requests,
or
demands which are required or contemplated by this Agreement shall be in
writing
and shall be hand-delivered or sent by registered or certified mail, postage
prepaid, to the following addresses until changed by certified or registered
letter so addressed to the other party:
| (i) |
If
to the Operator, to:
|
Atlas
Resources, LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
President
| (ii) |
If
to Developer, to:
|
Atlas
America Public #15-2006(B) L.P.
c/o
Atlas
Resources, LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices
which are served by registered or certified mail on the parties in the manner
provided in this Section shall be deemed sufficiently served or given for
all
purposes under this Agreement at the time the notice is mailed in any post
office or branch post office regularly maintained by the United States Postal
Service or any successor. All payments shall be hand-delivered or sent by
United
States mail, postage prepaid to the addresses set forth above until changed
by
certified or registered letter so addressed to the other party.
18. Interpretation.
The
titles of the Sections in this Agreement are for convenience of reference
only
and shall not control or affect the meaning or construction of any of the
terms
and provisions of this Agreement. As used in this Agreement, the plural shall
include the singular and the singular shall include the plural whenever
appropriate.
19. Counterparts.
The
parties may execute this Agreement in any number of separate counterparts,
each
of which, when executed and delivered by the parties, shall have the force
and
effect of an original; but all such counterparts shall be deemed to constitute
one and the same instrument.
21
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
ATLAS
RESOURCES, LLC
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, Executive Vice President
ATLAS
AMERICA PUBLIC #15-2006(B) L.P.
By
its
Managing General Partner:
ATLAS
RESOURCES, LLC
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Executive Vice President
22
DESCRIPTION
OF LEASES AND INITIAL WELL LOCATIONS
[To
be
completed as information becomes available]
1. WELL
LOCATION
|
(a)
|
Oil
and Gas Lease from ______________________________________ dated
_____________________ and recorded in Deed Book Volume __________,
Page
__________ in the Recorder’s Office of County, ____________, covering
approximately _________ acres in ____________________________ Township,
___________________ County,
__________________________.
|
|
(b)
|
The
portion of the leasehold estate constituting the
____________________________________________ No. __________ Well
Location
is described on the map attached hereto as Exhibit
A-l.
|
|
(c)
|
Title
Opinion of _________________________________,
____________________________________,
________________________________________,
________________________________________, dated ___________________,
200___.
|
| (c) |
The
Developer’s interest in the leasehold estate constituting this Well
Location is an undivided______% Working Interest to those oil and
gas
rights from the surface to the deepest depth penetrated at the cessation
of drilling activities (which is ___________ feet), subject to the
landowner’s royalty interest and overriding royalty
interests.
|
Exhibit
A
(Page
1)
23
|
DRILLING
AND OPERATING AGREEMENT DATED MAY 9, ▇▇▇▇
|
|||
|
▇▇▇▇▇
▇▇▇▇▇▇▇ PUBLIC #15-2006(B) L.P.
|
|||
|
WELL
|
STATE
|
COUNTY
|
TOWNSHIP
|
|
BIRD
#3
|
PA
|
CRAWFORD
|
RICHMOND
|
|
▇▇▇▇▇▇▇▇▇
#16
|
PA
|
CRAWFORD
|
RICHMOND
|
|
CAPTAIN
#3
|
PA
|
FAYETTE
|
▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇
#3
|
PA
|
FAYETTE
|
▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇/EVANCZUK
#1
|
PA
|
FAYETTE
|
▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇
UNIT #7
|
PA
|
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇
UNIT #8
|
PA
|
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇
#1
|
PA
|
FAYETTE
|
SPRINGHILL
|
|
▇▇▇▇▇▇/▇▇▇▇▇▇
#2
|
PA
|
▇▇▇▇▇▇
|
CUMBERLAND
|
Exhibit
A
(Page
2)
24
Well
Name, Twp.
County,
State
ASSIGNMENT
OF OIL AND GAS LEASE
STATE
OF _______________________________
COUNTY
OF _____________________________
KNOW
ALL MEN BY THESE PRESENTS:
THAT
the
undersigned
_____________________________________________________________________
(hereinafter
called “Assignor”), for and in consideration of One Dollar and other valuable
consideration ($1.00 ovc), the receipt whereof is hereby acknowledged, does
hereby sell, assign, transfer and set over unto ______________________
(hereinafter called “Assignee”), an undivided _____________________________ in,
and to, the oil and gas lease described as follows
together
with the rights incident thereto and the personal property thereto, appurtenant
thereto, or used, or obtained, in connection therewith.
And
for
the same consideration, the assignor covenants with the said assignee his
or its
heirs, successors, or assigns that assignor is the lawful owner of said lease
and rights and interest thereunder and of the personal property thereon or
used
in connection therewith; that the undersigned has good right and authority
to
sell and convey the same, and that said rights, interest and property are
free
and clear from all liens and encumbrances, and that all rentals and royalties
due and payable thereunder have been duly paid.
In
Witness Whereof, the undersigned owner ______ and assignor ______ has___
signed
and sealed this instrument the ______ day of _______________,
200___.
Signed
and acknowledged in the presence of _____________________________________________
_________________________________________ _____________________________________________
_________________________________________ _____________________________________________
Exhibit
B
(Page
1)
25
ACKNOWLEDGMENT
BY INDIVIDUAL
STATE
OF
__________________________
BEFORE
ME, a Notary Public, in and for said
COUNTY
OF_________________________
County
and State, on this day personally appeared
who
acknowledged
to me that ____ he ____ did sign the foregoing instrument and that the same
is
_____________ free act and deed.
In
testimony whereof, I have hereunto set my hand and official seal, at
_____________________________, this ______ day of _______________, A.D.,
200___.
Notary
Public
CORPORATION
ACKNOWLEDGMENT
STATE
OF________________________
BEFORE
ME, a Notary Public, in and for said
COUNTY
OF______________________
County
and State, on this day personally appeared ____known to me to be the person
and
officer whose name is subscribed to the foregoing instrument and acknowledged
that the same was the act of the said
______________________________________________, a corporation, and that he
executed the same as the act of such corporation for the purposes and
consideration therein expressed, and in the capacity therein
stated.
In
testimony whereof, I have hereunto set my hand and official seal, at
_____________________________, this ______ day of _______________, A.D.,
200___.
Notary
Public
This
instrument prepared by:
Atlas
Resources, LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇.▇.
▇▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Exhibit
B
(Page
2)
26
ADDENDUM
NO. ____________
DATED
________200___
THIS
ADDENDUM NO.__ made and entered into this ___ day of __________, 200__, by
and
between ATLAS RESOURCES,LLC, a Pennsylvania limited liability company
(hereinafter referred to as “Operator”),
and
ATLAS
AMERICA PUBLIC #15-2006(B) L.P., a Delaware limited partnership, (hereinafter
referred to as the Developer).
WITNESSETH
THAT:
WHEREAS,
Operator and the Developer have entered into a Drilling and Operating Agreement
dated ________, 200__, (the “Agreement”), which relates to the drilling and
operating of ____ (_) ▇▇▇▇▇ on the ____ (_) Initial Well Locations identified
on
the maps attached as Exhibits A ___ through A ___ to the Agreement, and provides
for the development on the terms and conditions set forth in the Agreement
of
Additional Well Locations as the parties may from time to time designate;
and
WHEREAS,
pursuant to Section l (c) of the Agreement, Operator and Developer presently
desire to designate ___ Additional Well Locations described below to be
developed in accordance with the terms and conditions of the
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Addendum
and intending to be legally bound, the parties agree as follows:
1. Pursuant
to Section l(c) of the Agreement, the Developer hereby authorizes Operator
to
drill, complete (or plug) and operate, on the terms and conditions set forth
in
the Agreement and this Addendum No. __, ___ additional ▇▇▇▇▇ on the ___
Additional Well Locations described on Exhibit A to this Addendum and on
the
maps attached to this Addendum as Exhibits A___ through A__.
2. Operator,
as Developer’s independent contractor, agrees to drill, complete (or plug) and
operate the additional ▇▇▇▇▇ on the Additional Well Locations in accordance
with
the terms and conditions of the Agreement and further agrees to begin drilling
the first additional well within thirty (30) days after the date of this
Addendum and to begin drilling all of the additional ▇▇▇▇▇ before the close
of
the 90th
day
after the close of the calendar year in which the Agreement was entered into
by
Operator and the Developer, or, if this Addendum is dated after that 90 day
period, to begin drilling the first additional well within thirty (30) days
after the date of this Addendum and to drill and complete (or plug) all of
the
remaining additional ▇▇▇▇▇ by the end of the calendar year in which this
Addendum is dated.
3.
Developer
acknowledges that:
| (a) |
Operator
has furnished Developer with the title opinions identified on Exhibit
A to
this Addendum; and
|
| (b) |
Such
other documents and information which Developer or its counsel has
requested in order to determine the adequacy of the title to the
above
Additional Well Locations.
|
The
Developer accepts the title to the Additional Well Locations and leased premises
in accordance with the provisions of Section 5 of the Agreement.
4. The
drilling and operation of the additional ▇▇▇▇▇ on the Additional Well Locations
shall be in accordance with and subject to the terms
and
conditions set forth in the Agreement as supplemented by this Addendum No.
__
and except as previously supplemented,
all terms and conditions of the Agreement shall remain in full force and
effect
as originally written.
5. This
Addendum No. _____ shall be legally binding on, and shall insure to the benefit
of, the parties and their respective successors
and permitted assigns.
Exhibit
C
(Page
1)
27
WITNESS
the due execution of this Addendum on the day and year first above
written.
ATLAS
RESOURCES, LLC
By
___________________
ATLAS
AMERICA PUBLIC #15-2006(B) L.P.
By
its
Managing General Partner:
ATLAS
RESOURCES, LLC
By
___________________
Exhibit
C
(Page
2)