EXHIBIT 2.4
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
NOBLE ENERGY, INC.
AND
PACIFIC ENERGY RESOURCES LTD.
DATED AS OF FEBRUARY 28, 2007
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ARTICLE 1. DEFINITIONS..............................................1
1.01. Abandonment Obligations......................................1
1.02. Additional Unit Area.........................................1
1.03. Aera.........................................................1
1.04. Affiliate or Affiliates......................................1
1.05. Agreement....................................................1
1.06. Applicable Laws..............................................2
1.07. Assignment and ▇▇▇▇ of Sale..................................2
1.08. Associated Parties...........................................2
1.09. Beta Interest or Beta Interests..............................2
1.10. Beta Onshore Pump Station....................................2
1.11. Beta Tangible Assets.........................................2
1.12. Beta Unit ▇▇▇▇▇..............................................3
1.13. Beta Unit....................................................3
1.14. Business Day.................................................3
1.15. Casualty Loss................................................3
1.16. Claim or Claims..............................................3
1.17. Closing......................................................3
1.18. Closing Date.................................................3
1.19. Consents.....................................................3
1.20. Contracts....................................................3
1.21. Disputed Claim...............................................3
1.22. Effective Time...............................................3
1.23. Environmental Laws...........................................4
1.24. Excluded Items...............................................4
1.25. Execution Date...............................................5
1.26. Exercising PRP Holder........................................5
1.27. Final Settlement Statement...................................5
1.28. GAAP.........................................................5
1.29. Gas..........................................................5
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1.30. Governmental Bond............................................5
1.31 Governmental Entity..........................................5
1.32. Hazards Act..................................................5
1.33. Inventory Closing Amount.....................................6
1.34. ▇. ▇▇▇▇......................................................6
1.35. LACT Unit....................................................6
1.36. Liability or Liabilities.....................................6
1.37. Material Amount..............................................6
1.38. MMS..........................................................6
1.39. MMS Approval.................................................6
1.40. MMS Escrow Agreement.........................................6
1.41. Natural Hazard Expert........................................6
1.42. NORM.........................................................6
1.43. Oil..........................................................6
1.44. Oil and Gas Rights...........................................6
1.45. OCS Leases...................................................6
1.46. Organizational Documents.....................................7
1.47. Operator.....................................................7
1.48. Other Beta Assets............................................7
1.49. Other WI Owners..............................................7
1.50. Payout.......................................................8
1.51. Person.......................................................8
1.52. Platform ▇▇▇▇▇...............................................8
1.53. Platform ▇▇▇▇▇...............................................8
1.54. Platform Elly................................................8
1.55. Platform Eureka..............................................8
1.56. Property or Properties.......................................8
1.57. Pre-Acquisition Environmental Assessment.....................8
1.58. PRP Holder...................................................8
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1.59. Purchase Price...............................................8
1.60. Quitclaimed Interest.........................................8
1.61. Real Property Taxes..........................................8
1.62. Related Agreements...........................................8
1.63. Required Bonds...............................................8
1.64. Reserved Production Payment..................................9
1.65. San ▇▇▇▇▇ Bay Pipeline.......................................9
1.66. Second Unit Operating Agreement..............................9
1.67. Securities Act...............................................9
1.68. Silver Point.................................................9
1.69. SPBP Interests...............................................9
1.70. SPBP Tangible Assets.........................................9
1.71. SPBPC........................................................9
1.72. Standard & Poors.............................................9
1.73. Strict Liability.............................................9
1.74. Transaction Documents........................................9
1.75. Unit Agreement...............................................9
1.76. Unit Operating Agreement.....................................9
1.77. Unit Operator...............................................10
1.78. Well or ▇▇▇▇▇...............................................10
1.79. Working Interest Owners.....................................10
ARTICLE 2. PURCHASE AND SALE.......................................10
2.01. Interests...................................................10
2.02. Assumption..................................................10
ARTICLE 3. PURCHASE PRICE..........................................10
3.01. Purchase Price..............................................10
3.02. No Adjustments to Purchase Price............................10
ARTICLE 4. BUYER'S REVIEW..........................................10
4.01. Buyer's Review before the Execution Date....................10
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4.02. Access to Assets and Inspection of the Properties...........11
4.03. Beta Tangible Assets; Casualty Loss.........................11
4.04. No Representation or Warranty of Accuracy; Disclaimer.......11
4.05. Acknowledgments of Buyer at Closing.........................12
4.06. Independent Evaluation......................................14
4.07. Buyer's Confidentiality Obligations.........................15
4.08. Baseline Study..............................................15
4.09. Natural Hazard Area Disclosures.............................16
4.10. Acknowledgement as to Assets Being Transferred..............16
ARTICLE 5. TITLE REVIEW............................................17
5.01. Review of Title Records.....................................17
5.02. Waiver......................................................17
5.03. Description and Other Errors................................17
5.04. Additional Unit Area and Second Unit Operating Agreement....17
ARTICLE 6. CERTAIN COVENANTS BETWEEN BUYER AND SELL PRIOR TO
CLOSING.................................................17
6.01. Preferential Rights.........................................18
6.02. Related Agreements; Termination of Specified Contracts......18
6.03. Third-Party Notifications and Approvals.....................18
6.04. Insurance...................................................19
6.05. Amendment to MMS Escrow Agreement...........................19
ARTICLE 7. CLOSING.................................................19
7.01. Closing Date................................................19
7.02. Closing Obligations; Deliveries.............................19
7.03. Noble's Conditions..........................................22
7.04. Buyer's Conditions..........................................23
ARTICLE 8. TERMINATION.............................................24
8.01. Events of Termination.......................................24
8.02. Effect of Termination.......................................24
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ARTICLE 9. CERTAIN OBLIGATIONS AFTER CLOSING.......................25
9.01. Filing and Recording........................................25
9.02. Further Assurances..........................................25
9.03. Post-Closing Third-Party Consents...........................25
9.04. Buyer's Compliance..........................................26
9.05. Allocation of Proceeds, Costs and Expenses..................26
9.06. Plugging and Abandoning ▇▇▇▇▇ and Platforms; Remediation;
Security for Buyer's Obligations............................26
9.07. Insurance...................................................27
9.08. Preparation of Final Settlement Statement...................28
9.09. Buyer's Response to Final Settlement Statement..............28
ARTICLE 10 TAXES, COSTS, AND FEES..................................28
10.01. Real Property Taxes.........................................29
10.02. Production Taxes............................................29
10.03. Other Taxes.................................................29
10.04. Delegation..................................................29
ARTICLE 11. OIL IN STORAGE, PROCEEDS, COSTS, EXPENSES, CLAIMS, AND
DISBURSEMENTS...........................................29
11.01. Oil in Storage..............................................29
11.02. Reservation of Claims.......................................30
11.03. Reservation of Reserved Production Payment..................30
11.04. Delegation..................................................31
ARTICLE 12. PREFERENTIAL RIGHT TO PURCHASE OIL......................31
ARTICLE 13. PREFERENTIAL RIGHT TO PURCHASE GAS......................31
ARTICLE 14. BUYER'S RELEASE, DISCHARGE, AND COVENANT NOT TO ▇▇▇;
BUYER'S OBLIGATIONS TO INDEMNIFY, DEFEND, AND HOLD
HARMLESS; DISPUTE RESOLUTION............................31
14.01. Buyer's Release and Discharge of Noble and
its Associated Parties......................................31
14.02. Buyer's Covenant Not to ▇▇▇ ▇▇▇▇▇ or its
Associated Parties..........................................31
14.03. Buyer's Obligations to Indemnify, Defend, and
Hold Noble and its Associated Parties Harmless..............32
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14.04. Buyer's Obligations.........................................32
14.05. Buyer's Duty to Defend......................................34
14.06. Alternate Dispute Resolution and Arbitration................34
14.07. BUYER'S WAIVER OF CONSUMER RIGHTS UNDER ANY CALIFORNIA
CONSUMER PROTECTION LAWS....................................35
14.08. Retroactive Effect..........................................35
14.09. INDUCEMENT TO NOBLE.........................................36
ARTICLE 15. ENVIRONMENTAL MATTERS...................................36
15.01. Buyer's Acknowledgment Concerning Possible Contamination
of the Beta Tangible Assets, and the Property...............36
15.02. Disposal of Materials, Substances, and Wastes;
Compliance with Law.........................................36
ARTICLE 16. GAS MATTERS.................................................36
ARTICLE 17. REPRESENTATIONS AND WARRANTIES..............................37
17.01. Representations by Noble....................................37
17.02. Representations by Buyer....................................37
ARTICLE 18. COMMUNICATIONS..........................................40
ARTICLE 19. MISCELLANEOUS...........................................41
19.01. Entire Agreement............................................41
19.02. Successors and Assigns; Amendment; Survival.................41
19.03. Exclusive Remedy............................................41
19.04. Choice of Law...............................................42
19.05. Assignment..................................................42
19.06. No Admissions...............................................42
19.07. No Third-Party Beneficiaries................................42
19.08. Public Communications.......................................42
19.09. Headings and Titles.........................................42
19.10. Bulk Transfer Law...........................................42
19.11. Severability................................................42
19.12. Counterparts................................................42
19.13. Not to Be Construed against the Drafter.....................42
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19.14. No Waiver...................................................43
19.15. Expenses....................................................43
19.16. Time of Essence.............................................43
19.17. H-S-R.......................................................43
19.18. No Partnership..............................................43
19.19. Foreign Trade Law Compliance................................43
19.20. Rules of Construction.......................................43
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EXHIBITS AND SCHEDULES:
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Exhibit A -- Description of the Beta Interests
Exhibit B -- Certain Contracts Comprising the Beta Interests
Exhibit C -- Form of Assignment and ▇▇▇▇ Of Sale
Exhibit D -- Alternate Dispute Resolution and Arbitration Provisions
Exhibit E -- Section 25359.7(a) of the California Health and Safety Code
Exhibit F -- Non-Foreign Affidavit
Exhibit G -- Form of California Form 593-C
Exhibit H -- California Sales Tax Exemption
Exhibit I -- Disclosed Matters as to the Property and Disclosure Regarding
Earthquake Fault Zone
Exhibit J -- Form of MMS Escrow Agreement
Exhibit K -- Form of Quitclaim Deed
Exhibit L -- Beta Field Abandonment Costs Provisions
Schedule 1 -- Certain Excluded Items
Schedule 2 -- Preferential Rights
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "AGREEMENT"), dated as of
February 28, 2007 (the "EXECUTION DATE"), is by and between Noble Energy, Inc.,
a Delaware corporation, with an address of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ("NOBLE"), and PACIFIC ENERGY RESOURCES LTD., a Delaware
corporation, with an address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("BUYER"). Noble and Buyer are sometimes herein called a "PARTY" and
collectively called the "PARTIES."
RECITALS
A. Buyer desires to purchase from Noble all its right, title and
interest in, to and under the Beta Unit (as defined below) and Noble desires to
sell such interests to Buyer, subject to the terms and conditions of this
Agreement.
B. It is the Parties' intent that, from and after the Closing (as
defined below), but effective from and after the Effective Time (as defined
below), Buyer shall have responsibility and liability for all matters relating
to the Beta Interests (as defined below), including the Related Agreements (as
defined below), whether related to events occurring before or after the Closing,
except to the limited extent expressly provided in this Agreement.
AGREEMENT
In consideration of their mutual promises under this Agreement, the
benefits to be derived by each Party, and other good and valuable consideration,
the Parties agree as follows:
ARTICLE 1. DEFINITIONS
The following terms, when used in this Agreement, have the following
definitions:
1.01. ABANDONMENT OBLIGATIONS. Those obligations defined in SECTION
9.06(a).
1.02. ADDITIONAL UNIT AREA. The area covered by federal oil and gas
lease bearing serial No. OCS P-0296, on which area is located Platform ▇▇▇▇▇.
Pursuant to certain agreements, the Additional Unit Area is included within the
Beta Unit, but is not governed by the Unit Operating Agreement (defined below).
Unless expressly provided in a particular provision, this Agreement does not
cover or pertain to assets or operations in the Additional Unit Area.
1.03. AERA. Aera Energy LLC, a California limited liability company
with an address of ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
1.04. AFFILIATE OR AFFILIATES. Any entity that, directly or indirectly,
through one or more intermediaries, controls or is controlled by or is under
common control with the entity specified. For the purpose of this definition,
the term "CONTROL" means ownership of fifty (50%) or more of voting rights
(stock or otherwise) or ownership interest.
1
105. AGREEMENT. Defined in the preamble, as more particularly described
in SECTION 19.20(c).
106. APPLICABLE LAWS. Any and all federal, state, Indian, county,
municipal or other federal, state or local laws, ordinances, regulations, rules,
permits, or other regulatory requirements and any administrative, executive or
judicial or court orders or judgments, as well as the common law, in each case
which are applicable to either of the Parties or the Beta Interests.
1.07. ASSIGNMENT AND ▇▇▇▇ OF SALE. An instrument substantially in the
form of EXHIBIT C.
1.08. ASSOCIATED PARTIES. As to each Party, its successors, assigns,
members, partners, directors, officers, employees, agents, contractors,
subcontractors and Affiliates.
1.09. BETA INTEREST or BETA INTERESTS. All of Noble's existing right,
title and interest in, to and under the Beta Unit consisting of and including
the following:
(a) all right, title and interest of Noble in, to and under the
OCS Leases (as described on EXHIBIT A hereto), and in the
lands subject thereto, as modified to date and as to the lands
remaining subject thereto; and
(b) all right, title and interest of Noble in, to and under the
Beta Tangible Assets; and
(c) all right, title and interest of Noble in, to and under the
Other Beta Assets.
Noble and Buyer understand and believe, but Noble does not represent or
warrant, that Noble is the owner of an undivided seventeen percent (17%) working
interest in and to the Beta Unit, including the OCS Leases, the Beta Tangible
Assets and Other Beta Assets, subject to the Unit Agreement, the Unit Operating
Agreement and the Second Unit Operating Agreement (as described on EXHIBIT B
hereto).
The Beta Interests explicitly exclude the Excluded Items, which are
being reserved by Noble and are not being transferred or conveyed under this
Agreement.
1.10. BETA ONSHORE PUMP STATION. The pumping station and related
facilities located in Long, Beach, California, where the San ▇▇▇▇▇ Bay Pipeline
connects to other onshore pipelines.
1.11. BETA TANGIBLE ASSETS. All tangible personal property, facilities,
fixtures, equipment, rights and benefits incidental and appurtenant to the
ownership, use or operation of any of the OCS Leases, including without
limitation, all facilities and equipment (whether active or inactive)
customarily used directly in the production of crude oil, natural gas,
casinghead gas, condensate, sulphur, natural gas liquids, plant products and
other liquid or gaseous hydrocarbon substances (including CO2), and all other
minerals of every kind and character attributable to the OCS Leases, including
but not limited to ▇▇▇▇▇ (whether plugged or unplugged), injection facilities,
disposal facilities, equipment, fixtures, incidentals and appurtenances,
facilities and personal property of any kind (including, but not limited to,
tubing, casing, wellheads, pumping units, production units, compressors, valves,
meters, flowlines, tanks, heaters, separators, dehydrators, pumps, injection
units, gates and fences, field separators, liquid extractors, compressors, LACT
units, plants, tanks and the like).
2
1.12. BETA UNIT ▇▇▇▇▇. The Accounting Procedure -- Joint Operations
attached as Exhibit C to the Unit Operating Agreement, governing certain
accounting matters relating to operations under the Unit Operating Agreement.
1.13. BETA UNIT. The oil and gas production unit created by the Unit
Agreement; PROVIDED, HOWEVER, the term "Beta Unit" shall exclude the Oil and Gas
Rights associated with Platform ▇▇▇▇▇ and the Additional Unit Area.
1.14. BUSINESS DAY. Between 8:00 a.m., Central Time and 4:00 p.m.,
Central Time, on a Day when federally chartered banks in the State of Texas are
open for business.
1.15. CASUALTY LOSS. Any loss, damage or reduction in value of the Beta
Tangible Assets, as the case may be, that occurs during the period between the
Execution Date and Closing as a result of acts of God, fire, explosion,
terrorism, earthquake, windstorm, storm or flood, but excluding any loss, damage
or reduction in value as a result of depreciation, ordinary wear and tear and
any change in condition of the Beta Tangible Assets, as the case may be, for
production of Oil and Gas through normal depletion (including the watering out
of any well or sand infiltration of any well).
1.16. CLAIM OR CLAIMS. Any and all claims, demands, suits, causes of
action, and all resulting or related losses, damages, liabilities, fines,
penalties and costs (including attorneys' fees and costs of litigation), whether
known or unknown (including Environmental Claims and Non-Environmental Claims),
that are brought by or owed to a "third party;" provided, however, that the term
Claim or Claims does not include: 1) any such Claim by Noble against Aera, as
operator of the Beta Unit for audit claims that have been made pursuant to any
applicable contract or agreement by and between Aera and Noble or 2) any such
Claim that Noble may have against any insurance company for any loss, liability,
accident, incident or occurrence at, on or near the Beta Unit. The term "third
party" (whether or not capitalized) means any person or entity, governmental or
otherwise, other than Noble and Buyer; PROVIDED that a Claim by an officer,
director, employee or Affiliate of a Party against that Party shall not be a
Claim brought by or owed to a "third party".
1.17. CLOSING. Defined in SECTION 7.0
1.18. CLOSING DATE. The date on which the Closing occurs.
1.19. CONSENTS. Any approval, consent, ratification, waiver or other
authorization from any Person (including any of the foregoing issued, granted,
granted, given or otherwise made available by or under the authority of any
Governmental Entity or pursuant to any Applicable Laws).
1.20. CONTRACTS. Contracts, agreements, understandings, indentures,
guarantees, notes, bonds, leases, subleases, deeds of trust, conditional sales
contracts, mortgages, franchises or licenses; excluding, however, any insurance
contracts, policies or agreements.
3
1.21. DISPUTED CLAIM. Defined in SECTION 14.06(b).
1.22. EFFECTIVE TIME. 7:00 a.m. Pacific Time, on November 1, 2006.
1.23. ENVIRONMENTAL LAWS. Any and all Applicable Laws, including those
previously enacted and currently in effect or enacted after the Execution Date,
relating to protection of public health, welfare and the environment, including
those Applicable Laws relating to storage, handling and use of chemicals and
other hazardous materials; those relating to the generation, processing,
treatment, storage, transport, disposal, cleanup, remediation or other
management of waste materials or hazardous substances of any kind; and those
relating to the protection of environmentally sensitive or protected areas.
"Environmental Laws" expressly includes the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Resource Conservation and
Recovery Act of 1976, the Clean Water Act, the Safe Drinking Water Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act and the
Clean Air Act, as each is amended from time to time.
1.24. EXCLUDED ITEMS. The (i) reservations, exceptions and exclusions,
if any, listed on EXHIBITS A and B hereto, (ii) the items listed in SCHEDULE 1
hereto, and (iii) the following:
(a) Noble's records containing trade secrets unrelated to such OCS
Leases and beneficial interests, legal files, attorney client
communications or attorney work product materials covered by
privilege, records and documents subject to third party
confidentiality provisions, and auditor's reports;
(b) pipelines, fixtures, equipment, interests in land or any other
property owned by third Persons such as lessors, contractors,
purchasers or transporters of Oil or Gas;
(c) Noble's geological or geophysical data containing information
not related to the Beta Unit;
(d) (i) cash located on or at the Properties, (ii) deposits with
Government Entities, contractors and vendors, and (iii) other
cash equivalents, in either case to the extent that such cash
was generated from transactions occurring prior to the
Effective Time or such deposit was made prior to the Effective
Time;
(e) computer equipment (including Rosemont transmitters),
telecommunications equipment, vehicles, boats, tools, pulling
machines and other equipment and material temporarily located
on any Property or expressly excluded from the sale; PROVIDED,
HOWEVER, that Excluded Items shall not include computer or
telecommunication equipment required for safety or production
equipment, except as otherwise provided;
(f) items used, consumed or disposed of in the ordinary course of
business prior to the Closing;
(g) rights and Claims under insurance contracts, policies or
agreements held by Noble or any of its Affiliates, directly or
indirectly, covering any of the Properties;
4
(h) items excluded in information or correspondence provided to
Buyer before the Execution Date;
(i) Platform ▇▇▇▇▇, and the Oil and Gas Rights associated with
Platform ▇▇▇▇▇ (including Federal lease bearing serial No.
OCSP-0296) and the Additional Unit Area;
(j) personal property, fixtures, equipment, pipelines, facilities
and buildings located on the Property but currently in use in
connection with the ownership or operation of other property
not included in the Beta Interests;
(k) records that are subject to attorney-client privilege, work
product immunity or other privileges against disclosure
enjoyed by Noble or any of its Associated Parties;
(l) all Oil sales agreements between Noble and any other Person;
(m) all rights, if any, of Noble to emission reduction credits
used in connection with the operation of the Beta Interests;
and
(n) interest or interests as herein defined owned by any Person
other than Noble;
(o) any and all right, title or interest of Noble in and to the
rights and interests obtained by Noble in, by or through
Section 25 (also sometimes referred to as "Agreement Regarding
Beta Field") and Exhibit N (also sometimes referred to as the
"BETA Field Abandonment Costs Provisions"), and any related
provisions, that are described or contained in that certain
Purchase and Sale Agreement, dated September 16, 1993, by and
between FM Properties Operating Co. and Samedan Oil
Corporation; and
(p) any and all claims, demands, causes of action or rights that
Noble may have against Aera pursuant to audits performed by
Noble related to the Beta Unit or Beta Interest.
1.25. EXECUTION DATE. Defined in the PREAMBLE.
1.26. EXERCISING PRP HOLDER. Defined in SECTION 6.01(b).
1.27. FINAL SETTLEMENT STATEMENT. Defined in SECTION 9.08.
1.28. GAAP. Generally accepted accounting principles in the United
States of America, as in effect from time to time.
1.29. GAS. Natural gas, including casinghead gas and gas-well gas and
other hydrocarbon gases.
1.30. GOVERNMENTAL BOND. Defined in SECTION 9.06(b).
5
1.31. GOVERNMENTAL ENTITY. Any federal, state, Indian, county,
municipal or other federal, state or local Governmental Entity or judicial or
regulatory agency, board, body, department, bureau, commission, instrumentality,
court, tribunal or quasi-Governmental Entity in any jurisdiction (domestic or
foreign) having jurisdiction over either Party or any affected asset, or over
any of the transactions contemplated by this Agreement.
1.32. HAZARDS ACT. Defined in SECTION 4.09.
1.33. INVENTORY CLOSING AMOUNT. Defined in SECTION 11.01(b).
1.34. ▇. ▇▇▇▇. ▇. ▇▇▇▇ & Company.
1.35. LACT UNIT. The lease automated custody transfer unit at the Beta
Onshore Pump Station.
1.36. LIABILITY OR LIABILITIES. Collectively, all damages (including
consequential and punitive damages), including damages for personal injury,
death or damage to personal or real property (both surface and subsurface) and
costs for remediation, restoration or clean up of contamination, whether the
injury, death or damage occurred or occurs on or off any of the Property by
migration, disposal or otherwise; losses; fines; penalties; expenses; costs to
remove or modify facilities on or under any of the Properties; costs to
recondition or repair the Beta Tangible Assets; all Abandonment Obligations,
including plugging liabilities for all ▇▇▇▇▇, platforms (including Platform
Eureka, Platform Elly and Platform ▇▇▇▇▇), pipelines and other facilities;
attorneys' fees; court and other costs incurred in defending a Claim; liens; and
judgments; in each instance, whether these damages and other costs are
foreseeable or unforeseeable.
1.37. MATERIAL AMOUNT. An amount, as of the date of estimation or
determination, equal to $200,000.00 or more.
1.38 MMS. The Minerals Management Service, Pacific OCS Region, of the
U.S. Department of the Interior, and any successor Governmental Entity.
1.39. MMS APPROVAL. Final, unconditional approval by the MMS of the
assignment of Noble's record title interests in the OCS Leases to Buyer;
PROVIDED, that Noble may, in its sole discretion, deem the MMS Approval to have
been received if all conditions to the MMS Approval have been fully satisfied
other than the delivery to the MMS of the Governmental Bond and the other
Required Bonds required by Applicable Law to be delivered to the MMS.
1.40. MMS ESCROW AGREEMENT. That certain Trust Agreement - Supplemental
Bond for Decommissioning Liabilities dated effective as of March 1, 2007, by and
among U.S. Bank National Association, as trustee, Buyer and the MMS pertaining
to the receipt by the MMS of the Governmental Bond and the arrangements for the
maintenance thereof by the MMS, substantially in the form of EXHIBIT J.
1.41. NATURAL HAZARD EXPERT. Defined in SECTION 4.09.
6
1.42. NORM. Naturally occurring radioactive material.
1.43 OIL. Crude oil, distillate, drip gasoline, condensate and other
liquid hydrocarbons.
1.44. OIL AND GAS RIGHTS. Defined in the Unit Operating Agreement.
1.45. OCS LEASES. Federal oil and gas leases bearing serial Nos. ▇▇▇-▇
▇▇▇▇, ▇▇▇-▇ 0301 and OCS-P 0306, affecting lands located in federal waters
offshore California.
1.46. ORGANIZATIONAL DOCUMENTS. With respect to any Person, its
certificate of incorporation, formation or organization (or comparable)
document, its by-laws, partnership agreement or any certificate of formation,
limited liability company agreement or operating agreement, or any other similar
organizational instrument or document governing such Person or applicable to
ownership.
1.47. OPERATOR. The Person recognized as operator of any portion of the
Beta Tangible Assets by the applicable Governmental Entities.
1.48 OTHER BETA ASSETS. All easements, intangible personal property,
rights and benefits incidental and appurtenant to the ownership, use or
operation of any of the OCS Leases, (excluding insurance contracts, policies and
agreements and any and all Claims thereunder) without limitation:
(a) all contracts and agreements whether recorded or unrecorded in
existence at the Closing Date, which affect any of the OCS Leases;
(b) presently existing pooling, unitization and communitization
agreements or other operating agreements and the right, title and
interest of Noble in and to the units created thereby (including
without limitation all units formed under orders, regulations, rules or
other official acts of any governmental entity, agency or officer)
insofar and only insofar as they relate to any of the OCS Leases, or to
the ownership, use or operation of any of the OCS Leases, and the
production of Oil or Gas from or attributable to any of the OCS Leases;
(c) exclusive and non-exclusive rights to the use and occupancy of
land, including, without limitation, tenements, appurtenances, surface
leases, easements, permits, licenses, franchises, servitudes and
rights-of-way appertaining, belonging, affixed or incidental to or used
in connection with the ownership or operation of any of the OCS Leases,
whether recorded or unrecorded;
(d) licenses, authorizations, permits, variances and similar rights and
interests, and (to the extent assignable) other rights, privileges,
benefits and powers conferred upon the owner and holder of the OCS
Leases including, without limitation, all claims causes of action,
appertaining belonging, affixed or incidental to or held or exercised
in connection with any of the OCS Leases; and
7
(e) general operating records, well files (including applicable well
logs and production data, lease files, land files, environmental
compliance files, regulatory reports and certificates, abstracts and
title work appertaining, belonging or incidental to any of the OCS
Leases (if any); excluding, however, records containing trade secrets
unrelated to such OCS Leases and beneficial interests, legal files,
attorney client communications or attorney work product materials
covered by privilege, records and documents subject to third party
confidentiality provisions, and auditor's reports.
1.49 OTHER WI OWNERS. SWEPI LP and Aera.
1.50. PAYOUT. The initial point in time at which cumulative Oil
production from ▇▇▇▇▇ drilled from Platform Eureka, measured from and after the
Effective Time and calculated pursuant to SECTION 11.03, equals 200,000 barrels.
1.51. PERSON. Any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust, estate,
unincorporated organization, Governmental Entity or other entity.
1.52. PLATFORM ▇▇▇▇▇. That certain offshore oil and gas platform
located in the Beta Unit on Federal Lease bearing serial No. OCS P-0296,
offshore California.
1.53. PLATFORM ▇▇▇▇▇. That certain offshore oil and gas platform
located in the Beta Unit on Federal Lease bearing serial No. OCS P-0300,
offshore California.
1.54. PLATFORM ELLY. That certain offshore oil and gas platform located
in the Beta Unit on Federal Lease bearing serial No. OCS P-0300, offshore
California.
1.55. PLATFORM EUREKA. That certain offshore oil and gas platform
located in the Beta Unit on Federal Lease bearing serial No. OCS P-0301,
offshore California.
1.56 PROPERTY OR PROPERTIES. The real property in which and on which
the Beta Tangible Assets exist or are located, whether in whole or in part and
the real property covered by the OCS Leases.
1.57 PRE-ACQUISITION ENVIRONMENTAL ASSESSMENT. Defined in SECTION 4.08.
1.58. PRP HOLDER. Defined in SECTION 6.01(a).
1.59. PURCHASE PRICE. Defined in SECTION 3.01.
1.60. QUITCLAIMED INTEREST. Noble's right, title and interest, if any,
in and to the Beta Unit, the OCS Leases, the Beta Tangible Assets and the Other
Beta Assets, other than the Beta Interests.
1.61. REAL PROPERTY TAXES. Defined in SECTION 10.01.
1.62. RELATED AGREEMENTS. Defined in SECTION 6.02(a).
8
1.63. REQUIRED BONDS. All bonds or other forms of financial security
(including accounts such as lease-specific abandonment accounts) required by:
(a) the MMS in connection with Buyer's designation as an offshore
operator (specifically, those required for the Operator of the Beta
Unit) and an offshore working interest owner, including (i) any
Governmental Bond; and (ii) lease specific development bonds for each
of the OCS Leases in the amount of Five Hundred Thousand Dollars
($500,000) for purposes of Buyer's designation as an offshore operator;
and
(b) any other Governmental Entity in respect of the designation of
Buyer as Operator of the Beta Unit.
1.64. RESERVED PRODUCTION PAYMENT. Defined in SECTION 11.03.
1.65. SAN ▇▇▇▇▇ BAY PIPELINE. That certain sixteen-inch (16") oil
pipeline from Platform Elly to the Beta Onshore Pump Station.
1.66. SECOND UNIT OPERATING AGREEMENT. That certain Unit Operating
Agreement, Beta Unit, San ▇▇▇▇▇ Bay Area, Outer Continental Shelf, Offshore
California, dated as of August 1, 1982, as amended.
1.67. SECURITIES ACT. The Securities Act of 1933, as amended, or any
successor law thereto, as well as all regulations and rules issued pursuant to
that act or any such successor law thereto.
1.68. SILVER POINT. Silver Point shall mean SPF CDO I, LLC, a Delaware
limited liability company and Field Point I, Ltd., a Cayman corporation.
1.69. SPBP INTERESTS. All right, title and interest in the following:
(a) the SPBP Tangible Assets, and
(b) all Contracts relating to, arising out of or in connection with the
San ▇▇▇▇▇ Bay Pipeline.
1.70. SPBP TANGIBLE ASSETS. The San ▇▇▇▇▇ Bay Pipeline and all
facilities, machinery, fixtures and other miscellaneous equipment associated
with and used solely in connection with the San ▇▇▇▇▇ Bay Pipeline, consisting
of approximately 91,161 feet of the 16" crude pipeline beginning at the inlet to
the 20" O.D. sphere launcher on Platform Elly and terminating with approximately
2,754 feet of 10" crude pipeline from the Beta Onshore Pump Station to the THUMS
terminal downstream of the LACT Unit.
1.71. SPBPC. San ▇▇▇▇▇ Bay Pipeline Company, a California corporation.
1.72 STANDARD & POORS. Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
1.73. STRICT LIABILITY. Includes strict statutory liability and strict
products liability.
1.74. TRANSACTION DOCUMENTS. Defined in SECTION 19.01.
1.75. UNIT AGREEMENT. That certain Unit Agreement for Exploration,
Development, and Production Operations on the Beta Unit, San ▇▇▇▇▇ Bay Area,
Outer Continental Shelf, Offshore California dated to be effective as of April
15, 1983, as amended.
1.76. UNIT OPERATING AGREEMENT. That certain Unit Operating Agreement,
Beta Unit, San ▇▇▇▇▇ Bay Area, Outer Continental Shelf, Offshore California,
dated as of October 1, 1978, as amended.
9
1.77. UNIT OPERATOR. Aera as the designated unit operator under Section
10.1 of the Unit Operating Agreement, and the successors to Aera as such
designated unit operator.
1.78. WELL OR ▇▇▇▇▇. All well bores, both abandoned and unabandoned,
including Oil ▇▇▇▇▇, Gas ▇▇▇▇▇, injection ▇▇▇▇▇, disposal ▇▇▇▇▇ and water ▇▇▇▇▇,
including ▇▇▇▇▇ drilled after the Execution Date.
1.79. WORKING INTEREST OWNERS. Owners of "Working Interests" (as
defined in the Unit Agreement) in the Beta Unit and has the same meaning as the
term "Working Interest Owners" (as used in the Unit Operating Agreement).
ARTICLE 2. PURCHASE AND SALE
2.01. INTERESTS. Noble agrees to sell the Beta Interests to Buyer, and
Buyer agrees to buy the Beta Interests from Noble, for the consideration recited
in and subject to the terms of this Agreement.
2.02. ASSUMPTION. From and after the Closing, but effective as of the
Effective Time, Buyer shall assume and be responsible for all Liabilities
associated with the Beta Interests, including the Related Agreements, regardless
of when or how such Liabilities arose or accrued, or whether such Liabilities
are foreseeable or unforeseeable, all on the terms more specifically provided in
this Agreement.
ARTICLE 3. PURCHASE PRICE
3.01. PURCHASE PRICE. As consideration for the Beta Interests, Buyer
shall pay to Noble at the Closing, an amount equal to One and No Hundredths
Dollar ($1.00) and Noble shall reserve the Reserved Production Payment, pursuant
to which Buyer shall pay to Noble an amount equal to One Million, One Hundred
Thirty Three Thousand, Three Hundred Thirty Three and 33/100 ($1,133,333.33),
(the "PURCHASE PRICE"). Computation and payment of the Reserved Production
Payment shall be governed by the provisions of SECTION 11.03 and the Assignment
and ▇▇▇▇ of Sale.
3.02. NO ADJUSTMENTS TO PURCHASE PRICE. Notwithstanding any other
provision of this Agreement to the contrary, Buyer and Noble agree that there
shall be no adjustments to the Purchase Price of any kind, of any amount, for
any reason.
ARTICLE 4. BUYER'S REVIEW
4.01. BUYER'S REVIEW BEFORE THE EXECUTION DATE.
10
(a) Buyer acknowledges that Noble has not provided Buyer with, any
data or materials regarding the Beta Interests. Buyer
acknowledges that all data and material that it has reviewed
in connection with this transaction have been obtained from
third parties other than Noble and its Affiliates.
(b) By entering into this Agreement, Buyer acknowledges and
represents that it has reviewed and inspected the Beta
Tangible Assets and the Property, in each case to its
satisfaction to enable it to submit its offer to purchase the
Beta Interests and to execute this Agreement, and that it is
not entitled to a reduction in the Purchase Price,
indemnification or any other recourse of any kind whatsoever
against Noble in the event that title related issues arise
after the Execution Date. Buyer has undertaken all appropriate
inquiry to its satisfaction, and has made an informed decision
to acquire the Beta Interests on the basis of its own
investigations and without reliance on statements or
investigations by any other Person, including Noble or its
Associated Parties.
4.02. ACCESS TO ASSETS AND INSPECTION OF THE PROPERTIES. Buyer
acknowledges that it has had the opportunity to fully inspect and inventory the
Beta Tangible Assets and the Property before the Execution Date and there will
be no adjustment of the Purchase Price on the basis of the condition of the Beta
Tangible Assets or the Property.
4.03. BETA TANGIBLE ASSETS; CASUALTY LOSS.
(a) Buyer acknowledges that (i) prior to the Execution Date, it
has had the opportunity to inspect fully and inventory the
condition of the Beta Tangible Assets and is satisfied with
them and (ii) there will be no adjustment of the Purchase
Price on the basis of the condition of the Beta Tangible
Assets. Buyer acknowledges that certain of the Beta Tangible
Assets observed during Buyer's inspections may be used or
replaced by the Unit Operator before the Closing as a result
of normal and customary operations.
(b) If, after the Execution Date but prior to the Closing Date,
any portion of the Beta Tangible Assets suffers a Casualty
Loss, then Buyer shall nevertheless be required to proceed
with, and not delay, the Closing.
4.04. NO REPRESENTATION OR WARRANTY OF ACCURACY; DISCLAIMER.
(a) Noble makes no representation or warranty whatsoever (express,
statutory or implied) and expressly disclaims all
representations and warranties, as to the accuracy or
completeness of the files or any other information that it has
provided to Buyer or may provide to Buyer or that have been
provided or may be provided by other Persons. Conveyance of
the Beta Interests and the Property shall be without
representation or warranty whatsoever (express, statutory or
implied) as to title or condition (environmental, physical,
contractual and otherwise) or the quality, value, fitness for
purpose, merchantability or otherwise. Buyer shall satisfy
itself as to the type, condition, quality and extent of the
property and property interests that comprise the Beta
Interests and any other property or assets being sold and
conveyed to Buyer pursuant to this Agreement.
11
(b) BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NOBLE HAS NOT MADE, AND WILL NOT MAKE, ANY
REPRESENTATION OR WARRANTY WHATSOEVER (EXPRESS, IMPLIED OR
STATUTORY) IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY IT, INCLUDING THE ACCURACY OR
COMPLETENESS OF DATA, INFORMATION OR MATERIALS FURNISHED AT
ANY TIME TO BUYER OR ANY OF ITS ASSOCIATED PERSONS IN
CONNECTION WITH THE BETA INTERESTS (INCLUDING THE OCS LEASES,
BETA TANGIBLE ASSETS AND OTHER BETA ASSETS) OR THE PROPERTY,
OR THE QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY)
ATTRIBUTABLE TO THE BETA INTERESTS, OR THE ABILITY OF THE BETA
INTERESTS TO PRODUCE OIL OR GAS. NONE OF NOBLE'S ASSOCIATED
PARTIES IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION
ON NOBLE'S BEHALF. ALL DATA, INFORMATION AND OTHER MATERIALS
FURNISHED BY AERA ARE PROVIDED TO BUYER AS A CONVENIENCE ONLY,
AND RELIANCE ON OR USE OF THEM IS AT BUYER'S SOLE RISK.
4.05. ACKNOWLEDGMENTS OF BUYER AT THE CLOSING. By proceeding with the
transactions contemplated in this Agreement, Buyer shall be deemed to have
acknowledged and admitted, and, at the Closing, shall acknowledge and admit,
that:
(a) Buyer has been given full opportunity to adequately inspect
the Beta Tangible Assets and the Property;
(b) Buyer is aware that the Beta Tangible Assets and the Property
have been used for the exploration, development, production,
treating and transporting of Oil and Gas, and that physical
changes to the environment may have occurred or will occur as
a result of such use and that Aera, as operator, has
disclosed, and Buyer is further aware, that there exists the
possibility that there could have occurred or will occur from
such use one or more releases of hazardous substances or
releases of chemical substances into, or other pollution or
contamination of or into, the ambient air, seawater, surface
water, groundwater, soil, seabed or subsurface strata of any
real property included in the Property and of contiguous or a
series of contiguous, real properties not a part of the
Property. Buyer hereby acknowledges and agrees that no further
disclosures are necessary or expected from Noble.;
(c) Buyer has entered into this Agreement based solely on its own
investigation of the physical condition of the Beta Tangible
Assets and the Property (including the environmental condition
of the Property and the surrounding environment);
(d) Buyer acknowledges that at Closing it will acquire Noble's
interest in the Beta Tangible Assets and the Property and the
land related thereto based solely on its own investigation of
the physical condition thereof and assumes the risk that
adverse conditions outside the scope of Noble's
representations and warranties set forth in SECTION 17.01 may
not be revealed by Buyer's own investigation. Buyer, with full
knowledge of the foregoing and after conducting the
above-described investigation and evaluation, IS ACQUIRING
NOBLE'S INTEREST IN THE BETA TANGIBLE ASSETS , AND THE
PROPERTY, ON AN "AS IS, WHERE IS, WITH ALL FAULTS" BASIS, and,
Buyer, by acquiring Noble's interest in the Beta Tangible
Assets and the Property on an "as is, where is, with all
faults" basis, waives any other rights of indemnification,
contribution or recourse it may have against or from Noble or
any of its Associated Parties with respect to the condition of
the Beta Tangible Assets and the Property, including the
environmental condition of the Property and the surrounding
environment and any and all damage to natural resources
related to the use or ownership of the Property; and the
surrounding environment;
(e) In connection with the waivers, releases and limitations of
liability set forth in this Agreement (including in ARTICLE 14
hereof), each of the Parties expressly waives any rights under
section 1542 of the California Civil Code, which provides:
12
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release which if
known by him must have materially affected his
settlement with the debtor."
Each Party has been advised by its legal counsel as to the
significance of this waiver of Section 1542 relating to
unknown, unsuspected and concealed Claims, and each Party
acknowledges that it fully understands and agrees to such
waiver.
(f) Without limiting CLAUSES (d) and (e) above, Buyer expressly
acknowledges the following specific disclaimers:
(i) Buyer has made its own estimates of prospective data
such as future Oil and Gas production rates, value of
exploration prospects, operating costs and
Abandonment Obligations, based on Buyer's own
abilities and skills to explore, produce, operate,
and abandon the Beta Tangible Assets, the Properties
and the Beta Interests and is not relying on Noble's
own estimates of such data.
(ii) The Properties may contain asbestos, hazardous
substances or NORM.
(iii) Noble does not represent or warrant that ownership,
use, operation, maintenance, improvement or
abandonment of any intellectual property rights
included within the Beta Interests would not infringe
any patent, copyright, trademark or trade secret
rights of any Person.
(g) The Parties believe that the Properties and the Beta Tangible
Assets are situated offshore California in federal waters, but
to the extent that the Beta Interests include any interest
that is subject to the Applicable Laws of the State of
California, and without limiting CLAUSES (d), (e) AND (f)
above, Buyer expressly acknowledges the following specific
disclaimers:
(i) California Health and Safety Code Section 25359.7
provides that any owner of nonresidential real
property who knows, or has reasonable cause to
believe, that any release of hazardous substances, as
defined under California law, has come to be located
on or beneath that real property shall, prior to the
sale of that real property by that owner, give
written notice of that condition to the buyer of that
real property. Buyer acknowledges that it has
received written notice from Aera, as operator, that
one or more "hazardous substances," as defined under
California law, has come to be located in or on the
Properties and the Beta Interests. Buyer further
acknowledges that it has received from Aera, as
operator, a written notice pursuant to Section
25359.7(a) of the California Health and Safety Code.
A copy of such written notice is attached hereto as
EXHIBIT E, such notice fully and completely
discharges Noble from its disclosure obligations
pursuant to Section 25359.7(a) of the California
Health and Safety Code.
13
(ii) Pursuant to the California Safe Drinking Water and
Toxic Enforcement Act of 1986 (Proposition 65), Buyer
is on notice that detectable amounts of chemicals
known to the State of California to cause cancer,
birth defects and other reproductive harm may be
found in, on or around the Beta Tangible Assets, the
Properties and the Beta Interests.
(iii) The Beta Tangible Assets, the Properties and the Beta
Interests are or may be deemed to be within a Seismic
Hazard Zone as designated under the Seismic Hazards
Mapping Act (California Public Resources Code
Sections 2690-2699.6).
(iv) The Properties and the Beta Interests are or may be
deemed to be within an Earthquake Fault Zone as
designated under the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Earthquake Fault
Zoning Act (California Public Resources Code Sections
2619-2630) and the construction or development on the
Properties of any structure for human occupancy may
be subject to the findings of a geologic report
prepared by a geologist registered in California.
Aera, as operator, has presented Buyer with full
information on whether or not any of the Properties
are located in an Earthquake Fault Zone, as set forth
in EXHIBIT I attached hereto, and Buyer hereby
acknowledges and agrees that no further disclosures
are necessary or expected from Noble.
(h) Buyer has had the full opportunity to review and is aware of
the matters with respect to the Properties and the Beta
Interests as identified in EXHIBIT I attached hereto.
By initialing where indicated below, the Parties specifically agree to
the foregoing acknowledgements, disclaimers and releases in this SECTION 4.05.
NOBLE ___________ BUYER ____________
(Initials) (Initials)
4.06. INDEPENDENT EVALUATION. Buyer has made an independent evaluation
of the Beta Interests, and the Property, and acknowledges that Noble has made no
statements or representations concerning the present or future value of the
anticipated income, costs or profits, if any, to be derived from the Property or
the Beta Interests, or the quantity and quality of any Oil and Gas or other
minerals, if any, that may be produced from the Beta Interests and the Property,
and that NOBLE DOES NOT IMPLIEDLY OR EXPRESSLY WARRANT ANY DESCRIPTION, TITLE,
VALUE, QUALITY OR PHYSICAL CONDITION OF THE BETA INTERESTS (INCLUDING THE OCS
LEASES, BETA TANGIBLE ASSETS AND OTHER BETA ASSETS), OR THE PROPERTY,
MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE BETA INTERESTS OR
PROPERTIES, OR OTHER PERSONAL PROPERTY OR FIXTURES LOCATED THEREON OR USED IN
CONNECTION THEREWITH. Buyer further acknowledges that, in entering into this
Agreement, it has relied solely upon its independent examination of the Beta
Interests and the Property and public records relating to the Beta Interests,
and the Property and its independent estimates, computations, evaluations,
reports, and studies based thereon.
14
4.07. BUYER'S CONFIDENTIALITY OBLIGATIONS.
(a) Buyer will keep confidential all information concerning the
Beta Interests; PROVIDED, HOWEVER, that Buyer may disclose
such information to the extent that it is required to be
disclosed to enable Buyer to comply with any Canadian or U.S.
federal, state or local law or regulation, any order, writ or
injunction issued by a court of law or equity, any requirement
of any stock exchange or any requirement of a governmental
agency or authority;
(b) In the event of termination of this Agreement, Buyer shall
promptly, and in any event, within five (5) days of such
termination, (i) return to Noble all documentation or other
information concerning the Beta Interests and the Beta
Tangible Assets or otherwise pursuant to or in connection with
this Agreement, that it obtained from Noble or any Affiliate
of Noble, (ii) destroy all of its work papers and analyses
that incorporate the information, and (iii) be subject to
these confidentiality obligations for five (5) years after the
Execution Date. However, if the Closing occurs, then Buyer's
confidentiality obligations under this SECTION 4.07 will not
survive Closing.
4.08. BASELINE STUDY. Buyer and Noble hereby agree that, prior to the
Execution Date, Buyer was offered an opportunity to conduct a pre-acquisition
review environmental assessment report (the "PRE-ACQUISITION ENVIRONMENTAL
ASSESSMENT") of the Property. Buyer elected to not conduct a Pre-Acquisition
Environmental Assessment. Noble shall have the right, but not the obligation, at
any time (before or after the Closing) to conduct its own assessments of the
Property.
15
4.09. NATURAL HAZARD AREA DISCLOSURES. The following provisions of this
SECTION 4.09 apply if, and only to the extent, that any Beta Tangible Asset or
any of the Properties are not situated offshore California in federal waters and
the Applicable Laws of the State of California are applicable to any such Beta
Tangible Asset or Property. As used herein, the term "NATURAL HAZARD AREA" shall
mean those areas identified as natural hazard areas or natural hazards in the
Natural Hazard Disclosure Act, California Government Code Sections 8589.3,
8589.4 and 51183.5, and California Public Resources Code Sections 2621.9, 2694
and 4136, and any successor Applicable Laws (the "HAZARDS ACT"). Buyer and Noble
acknowledge that, pursuant to the Hazards Act, Noble is required to disclose if
any portion of the Property lies within the following Natural Hazard Areas: (i)
a special flood hazard area designated by the Federal Emergency Management
Agency (California Civil Code Section 1102.17); (ii) an area of potential
flooding (California Government Code Section 8589.4); (iii) a very high fire
hazard severity zone (California Government Code Section 51183.5); (iv) a wild
land area that may contain substantial forest fire risks and hazards (Public
Resources Code Section 4136); (v) an earthquake fault or special studies zone
(Public Resources Code Section 2621 et. seq.) or (vi) a seismic hazard zone
(Public Resources Code Section 2694). Buyer acknowledges that it and Aera
employed the services of JCP Geologists Inc. ("NATURAL HAZARD EXPERT") to
examine the maps and other information specifically made available to the public
by Governmental Entities with respect to the natural hazards referred to in
California Civil Code Section 1102.6c(a) and to report the results of its
examination to Buyer and Aera in writing. Buyer provided a copy of the written
report prepared by the Natural Hazard Expert to Noble, a copy of which is
attached as EXHIBIT I, regarding the results of its examination. Buyer relies
upon the report and agrees that such report fully and completely discharges
Noble from its disclosure obligations referred to herein, and, for the purposes
of this Agreement, the provisions of Civil Code Section 1102.4 regarding the
non-liability of Noble for errors and/or omissions not within its personal
knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed
to be an expert, dealing with matters within the scope of its expertise with
respect to the examination and written report regarding the natural hazards
referred to above. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall Noble have any responsibility for matters not
actually known to Noble or for matters for which Buyer has assumed the risk
under any other provision of this Agreement or any other agreement related to
the purchase and sale of a Beta Interest.
4.10. ACKNOWLEDGEMENT AS TO ASSETS BEING TRANSFERRED.
(a) Noble and Buyer understand and believe, but Noble does not
represent or warrant, that Noble is the owner of an undivided
seventeen percent (17%) working interest in and to the Beta
Unit, subject to the Unit Agreement, the Unit Operating
Agreement and the Second Unit Operating Agreement, including
an interest in the OCS Leases, the Beta Tangible Assets and
the Other Beta Assets.
(b) Noble does not believe that it owns any interest in San ▇▇▇▇▇
Bay Pipeline Company and the tangible and intangible assets
and properties owned by San ▇▇▇▇▇ Bay Pipeline Company, or any
tangible or intangible assets and properties comprising or
related to the San ▇▇▇▇▇ Bay Pipeline. In addition, Noble, as
a non-operating working interest owner, does not maintain
extensive files, books and records concerning the Beta Unit or
the Beta Interests and is not in a position to cause the Unit
Operator to act or refrain from acting in any particular way.
Accordingly, Buyer acknowledges that Noble will be unable to
supply Buyer with additional information concerning the Beta
Unit or the Beta Interests beyond what Noble has done prior to
the Execution Date, and that Buyer will need to satisfy itself
from sources other than Noble as to all matters relating to
the Beta Unit and the Beta Interests.
16
(c) Buyer understands and agrees that, pursuant to the terms and
conditions of this Agreement, it will purchase from Noble only
the Beta Interests, and that Noble does not intend to assign
to Buyer, or cause to be assigned to Buyer, any other interest
of any kind in, to or under the Beta Unit or any related
interests or properties. Buyer further acknowledges that the
rights and obligations of Aera under the Aera/PERL Beta PSA
are the rights and obligations of Aera alone, and Noble shall
not be deemed to have any obligation to Buyer in any way with
respect to the matters covered in the Aera/PERL Beta PSA.
ARTICLE 5. TITLE REVIEW
5.01. REVIEW OF TITLE RECORDS. Buyer acknowledges that Noble has not
provided Buyer with, any records relating to title to the Beta Interests or the
Properties. Buyer acknowledges that all records that it has reviewed relating to
title to the Beta Interests and the Properties have been obtained from the Unit
Operator, government records or other sources, and that neither Noble nor any of
its Affiliates have provided any such records.
5.02 WAIVER. Buyer waives for all purposes all objections associated
with the title to the Beta Interests and the Properties unless they were raised
to Noble with specificity and in writing prior to either Party's execution of
this Agreement; and Buyer irrevocably waives any and all claims they may have
against Noble associated with title to the Properties. For the avoidance of
doubt, this SECTION 5.02 shall not diminish or otherwise affect the Parties'
rights and obligations under any indemnities in this Agreement with respect to
Claims (i.e., third party matters).
5.03 DESCRIPTION AND OTHER ERRORS. If either Party determines, either
before or within ninety (90) days after the Closing, that the description of a
Beta Interest is incorrect or that certain Beta Interests were erroneously
included in or erroneously excluded from the respective definitions thereof,
other sales information or any conveyancing instruments, then Noble and Buyer
shall meet and use their respective commercially reasonable efforts to resolve
the error without need of further consideration, and shall, as applicable,
execute and deliver, or use commercially reasonable efforts to cause to be
executed and delivered, such other instruments of conveyance and take such other
actions as either Party reasonably may request in connection therewith. If the
Parties cannot resolve any such purported error within fifteen (15) days of the
commencement of negotiations, then the alternate-dispute-resolution and
arbitration procedures set forth in SECTION 14.06 shall apply.
5.04 ADDITIONAL UNIT AREA AND SECOND UNIT OPERATING AGREEMENT. Noble
does not own any leasehold working interest in Federal Lease No. OCS P-0296, the
Additional Unit Area or Platform ▇▇▇▇▇; however, pursuant to the Unit Agreement
and the Second Unit Operating Agreement, Noble is a Working Interest Owner in
the Beta Unit, including the Additional Unit Area. At the Closing, Noble shall
assign to Buyer all of Noble's right, title and interest to the Second Unit
Operating Agreement and Buyer shall accept such assignment and shall assume all
of Noble's obligations and liabilities under the Second Unit Operating
Agreement.
ARTICLE 6. CERTAIN COVENANTS BETWEEN
EXECUTION DATE AND CLOSING
6.01. PREFERENTIAL RIGHTS. The Beta Interests are subject to
preferential rights to purchase. In particular, the Unit Operating Agreement
contains preferential rights to purchase in favor of the Other WI Owners and the
Unit Agreement contains a right held by the Other WI Owners to approve a
successor Unit Operator of the Beta Interests.
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(a) NOTICES. Noble will notify the holders of preferential rights
(each, a "PRP HOLDER") to purchase the Beta Interests as
listed on SCHEDULE 2.
(b) CONSEQUENCES OF EXERCISE. If any PRP Holder exercises such
rights (an "EXERCISING PRP HOLDER"), then the Beta Interests
affected thereby shall be excluded from the assets transferred
to Buyer at the Closing, and shall be sold to such Exercising
PRP Holder.
(c) THIRD-PARTY FAILURE TO PURCHASE. If an Exercising PRP Holder
gives written notice of its intent to exercise a preferential
right to purchase the Beta Interests, but does not close the
purchase for any reason either before or within sixty (60)
days after the Closing, Noble shall give Buyer notice thereof
and Buyer will be obligated to acquire the property subject to
such preferential right under the terms of this Agreement,
without payment of any additional amount by Buyer or Noble.
The closing on the preferential right property will be
scheduled to occur within forty-five (45) days after Buyer
receives Noble's notice that the Exercising PRP Holder has not
closed. The effective time for transfer of the property
subject to the preferential right will be the Effective Time
and all other terms and conditions of this Agreement shall
apply to the sale of such interest as if such property had
been transferred to Buyer at the Closing.
6.02. RELATED AGREEMENTS; TERMINATION OF SPECIFIED CONTRACTS.
(a) Except as otherwise provided in this Agreement, the sale of
the Beta Interests will be subject to the terms and conditions
of all oil, gas and mineral leases, assignments, subleases,
farmout agreements, unit agreements (including the Unit
Agreement), joint operating agreements (including the Unit
Operating Agreement and the Second Unit Operating Agreement),
pooling agreements, letter agreements, easements,
rights-of-way, gathering and transportation agreements,
obligations and other Contracts, in each case to the extent
that Noble is a party (or as such Contracts are otherwise
binding upon Noble) and that concern or pertain to the Beta
Interests (each of the foregoing, but expressly excluding any
agreement that constitutes an Excluded Item, a "RELATED
Agreement" and collectively, the "RELATED AGREEMENTS").
(b) At the Closing, the Parties will deliver to each other all
documents necessary for Buyer to assume the Related Agreements
and Buyer shall assume all of Noble's obligations and
liabilities under the Related Agreements, effective as of the
Effective Time. Buyer's obligations shall apply to all Related
Agreements, whether or not recorded.
6.03. THIRD-PARTY NOTIFICATIONS AND APPROVALS.
(a) Buyer acknowledges that the sale of the Beta Interests may
require the providing of notice to, and Consent of, lessors,
joint interest owners, farmors, sublessors, assignors,
grantors, parties to agreements, Governmental Entities having
jurisdiction (including without limitation the MMS), or other
third Persons.
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(b) Buyer acknowledges that it is and shall be solely responsible
for obtaining all Consents from applicable third Persons and
will furnish Noble with copies, or other acceptable proof, of
the granting or receipt of each Consent (other than the MMS
Approval) before Closing.
(c) If Buyer does not furnish Noble with all third-party Consents
(other than the MMS Approval) applicable to any Beta Interest
before the Closing, then Noble may, at its option, elect to
(i) waive the conditions set forth in SECTION 7.03(g); (ii)
elect not to proceed pursuant to SECTION 7.03(g) and terminate
this Agreement; or (ii) remove the affected Beta Interest from
this Agreement and proceed to Closing on the remaining portion
of the Beta Interests.
(d) The Parties have received preliminary indications from MMS
that the draft transfer documents assigning the OCS Leases and
Related Agreements to Buyer are in a form acceptable to MMS.
The Parties also understand and expect that MMS should process
such transfer documents within a period not to exceed
forty-five (45) days, although such period could be somewhat
longer. At the Closing, such transfer documents, and other
required documents shall be submitted to MMS. Buyer agrees to
use all commercially reasonable efforts to obtain the MMS
Approval as soon as possible, and if and when MMS Approval is
received, Buyer shall promptly furnish to Noble true and
complete copies of the documents evidencing MMS Approval.
Noble agrees to cooperate in all commercially reasonable ways
with Buyer in Buyer's efforts to obtain the MMS Approval;
PROVIDED, that Noble shall have no obligation to incur any
cost or expense in doing so.
6.04. INSURANCE. Noble may not carry any insurance casualty or
liability insurance affecting the Beta Interests. Accordingly, Buyer
acknowledges that it will need to procure its own insurance coverage for the
Beta Interests.
6.05. AMENDMENT TO MMS ESCROW Agreement. Buyer agrees that it will use
its best efforts to persuade Aera and SWEPI to consent to Buyer's execution of
an amendment to Exhibit J and upon such consent Buyer will execute an amendment
to Exhibit J to insert and include Noble as a "Predecessor" as defined in said
Exhibit J and will use its best efforts to persuade the MMS and U. S. Bank
National Association to execute the same amendment.
ARTICLE 7. CLOSING
7.01. CLOSING DATE. The closing of the acquisition of the Beta
Interests contemplated by this Agreement (the "CLOSING"), shall be held at
Noble's offices at, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or at
another place that Noble designates, at 10:00 a.m. local time; PROVIDED,
HOWEVER, that the Closing (and the transactions so contemplated by this
Agreement) shall in any event be effective as of the Effective Time.
7.02. CLOSING OBLIGATIONS; DELIVERIES. Subject to the satisfaction of
all of the conditions precedent to the Closing set forth in this ARTICLE 7, at
the Closing the following shall occur:
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(a) CERTIFICATE OF BUYER. Buyer shall deliver to Noble a
certificate in form and substance satisfactory to Noble,
effective as of the Closing Date and executed by Buyer's duly
authorized officer, certifying as to (i) compliance with the
conditions set forth in SECTION 7.03(a) and as to (ii) the
incumbency and specimen signature of each officer of Buyer
executing this Agreement and the other Transaction Documents
to which Buyer is or is intended to be a party.
(b) CERTIFICATE OF NOBLE. Noble shall deliver to Buyer a
certificate in form and substance satisfactory to Buyer,
effective as of the Closing Date and executed by Noble's duly
authorized attorney-in-fact, certifying as to compliance with
the conditions set forth in SECTION 7.04(a). Noble shall
deliver a certificate as to the validity of such
attorney-in-fact's power of attorney.
(c) THIRD-PARTY CONSENTS. Buyer shall deliver to Noble evidence
reasonably satisfactory to Noble that Buyer has obtained all
required Consents (including without limitation the MMS
Approval).
(d) FINANCIAL SECURITY. Buyer shall deliver to Noble evidence
reasonably satisfactory to Noble of Buyer's ability to perform
fully its financial obligations under this Agreement,
including Abandonment Obligations, together with evidence
reasonably satisfactory to Noble that Buyer has otherwise
satisfied all requirements of Applicable Law with respect to
transfer of the Beta Interests. In particular, Buyer shall
deliver to Noble true, correct and complete copies of the
Governmental Bond, and all other Required Bonds (including
copies of the MMS Escrow Agreement and the security for the
Abandonment Obligations held thereunder).
(e) ASSIGNMENT AND ▇▇▇▇ OF SALE. Noble and Buyer shall execute and
deliver counterparts of the Assignment and ▇▇▇▇ of Sale. The
Assignment and ▇▇▇▇ of Sale, when delivered at the Closing,
shall be effective as of the Effective Time, be without
warranty of any kind (e.g., title, fitness, condition), and
shall restate (or incorporate by reference) the indemnities,
releases and waivers contained in this Agreement.
(i) EXHIBIT A to this Agreement states Noble's working
interest in the OCS Leases, to the best of Noble's
knowledge and belief. The Assignment and ▇▇▇▇ of Sale
shall not, however, state or warrant the working
interests in the OCS Leases assigned to Buyer.
(ii) In addition to transferring the Beta Interests to
Buyer pursuant to the terms and conditions of the
Assignment and ▇▇▇▇ of Sale, the Assignment and ▇▇▇▇
of Sale shall include a quitclaim of the Quitclaimed
Interests.
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(iii) If Noble owns an interest in any Beta Interest or
Property (including overriding royalties, deep rights
and facilities, equipment, or pipelines) or continues
to own easements, access rights or other interests
for which Noble requires access across the Property
in order to exercise its rights, then the Assignment
and ▇▇▇▇ of Sale shall reserve unto Noble concurrent
interests in the applicable easements, rights-of-way,
Agreements and other rights relating to the retained
or reserved interests.
(iv) If the Beta Interests include a fee simple interest
in real property that has been used for Oil, Gas or
other mineral operations, Noble may elect to restrict
the future use of the land and include restrictive
covenants in the instruments of conveyance.
(v) The Parties shall execute and acknowledge any such
other instruments reasonably necessary to effectuate
the conveyance of the Beta Interests to Buyer,
including without limitation, separate instruments on
any officially approved form for the assignment of
the OCS Leases and for each lease, easement,
franchise, license or similar interest issued by a
Governmental Entity.
(f) OTHER DOCUMENTS. The Parties shall execute and deliver other
documents reasonably required to close this transaction and
implement the terms of this Agreement, including, but not
limited to the following:
(i) NON-FOREIGN AFFIDAVIT. Noble shall execute and
deliver a Non-Foreign Affidavit in substantially the
form attached hereto as EXHIBIT F attached hereto.
(ii) CALIFORNIA FORM 593-C (REAL ESTATE WITHHOLDING
Certificate). Noble shall execute and deliver a
California Form 593-C in substantially the form
attached hereto as EXHIBIT G.
(iii) QUITCLAIM DEED OF INTEREST IN SAN ▇▇▇▇▇ BAY PIPELINE.
Noble shall execute a Quitclaim Deed in favor of
SPBPC quitclaiming all of Noble's interest, if any,
in the SPBP Interests in substantially the form
attached hereto as EXHIBIT K. In addition to the
Quitclaim Deed, Noble shall execute and deliver to
Buyer, such other instruments or governmental
compliance forms that may be required by the MMS to
approve any of Noble's interest, if any, in the SPBP
Interests to transfer such interest to SPBPC.
(iv) OTHER DOCUMENTS. The Parties shall execute and
deliver other documents reasonably required to close
this transaction and implement the terms of this
Agreement, including assignments, deeds, assumption
agreements, additional bills of sale and the like, as
well as instruments necessary under operating
agreements (including the Unit Operating Agreement
and the Second Unit Operating Agreement), plans of
unitization (including the Unit Agreement) and
Applicable Laws affecting the Beta Interests to
transfer the Beta Interests and related obligations
from Noble to Buyer.
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7.03. NOBLE'S CONDITIONS. The obligations of Noble to be performed at
the Closing are subject to the satisfaction or waiver in writing by Noble at or
prior to the Closing, of the following conditions:
(a) REPRESENTATIONS TRUE; PERFORMANCE OF OBLIGATIONS. All
representations and warranties of Buyer contained in this
Agreement shall be true in all material respects at and as of
the Closing as if such representations and warranties were
made at and as of the Closing, and Buyer shall have performed
and satisfied in all material respects all obligations
required by this Agreement to be performed and satisfied by it
at or prior to the Closing.
(b) NO PENDING SUITS. No suit or other proceeding shall be pending
or threatened before any court or Governmental Entity seeking
to restrain, prohibit, or declare illegal, or seeking
substantial damages in connection with, the transactions
contemplated by the Agreement.
(c) NO ACT OF TERMINATION. Noble shall not have exercised any
rights it may have hereunder to terminate this Agreement.
(d) REQUIRED BONDS. Buyer shall have delivered to Noble copies of
the Government Bond and all Required Bonds, together with
evidence satisfactory to Noble that the Government Bond and
all Required Bonds have been accepted by the applicable
Governmental Entities; and Buyer shall have delivered to Noble
evidence reasonably satisfactory to Noble that Buyer has
otherwise satisfied all requirements of Applicable Law with
respect to transfer the Beta Interests.
(e) H-S-R. All applicable waiting periods, if any, shall have
expired under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act, or early termination of such waiting periods shall have
been granted by the appropriate Governmental Entities.
(f) AERA SALE. Buyer shall have delivered to Noble copies of all
Contracts and other documents and instruments evidencing the
closing of Aera's sale and conveyance to Buyer of all of
Aera's right, title and interest in and to the Beta Unit, the
OCS Leases and related interests and assets.
(g) CONSENTS. Each Consent shall have been obtained and shall be
in full force and effect.
(h) INSURANCE. Noble shall have received certificates, dated as of
a date no more than five (5) days prior to the Closing Date,
from Buyer's insurers certifying (i) compliance with all of
the insurance required by SECTION 9.07 and (ii) that such
insurance has been in full force and effect from and after the
Effective Time.
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(i) MMS ESCROW AGREEMENT. The form and substance of the MMS Escrow
Agreement shall have been approved by Noble, Buyer shall have
delivered to Noble evidence acceptable to Noble that Buyer,
Escrow Agent and the MMS have entered into the MMS Escrow
Agreement and the funds or securities to be deposited
thereunder as of the Closing (including the Governmental Bond
or the amount to be used to purchase the Governmental Bond and
the other Required Bonds to be delivered to the MMS) (i) shall
have been previously received by the escrow agent or trustee
under the MMS Escrow Agreement, or (ii) shall have been, at
the Closing, transferred by the Escrow Agent to the trustee or
escrow agent under the MMS Escrow Agreement.
(j) ADDITIONAL DOCUMENTS. Buyer shall have delivered or provided
to Noble all Contracts, information, approvals, documents and
instruments (i) required to be delivered or provided by Buyer
pursuant to this Agreement, including SECTION 7.02 or (ii) as
Noble may have reasonably requested.
(k) ACTIONS. Buyer shall have taken all actions described in
SECTION 7.02 as being required of Buyer.
7.04. BUYER'S CONDITIONS. The obligations of Buyer to be performed at
the Closing are subject to the satisfaction or waiver in writing by Buyer at or
prior to the Closing, of the following conditions:
(a) REPRESENTATIONS TRUE; PERFORMANCE OF OBLIGATIONS. All
representations and warranties of Noble contained in this
Agreement shall be true in all material respects at and as of
the Closing as if such representations and warranties were
made at and as of the Closing, and Noble shall have performed
and satisfied in all material respects all obligations
required by this Agreement to be performed and satisfied by it
at or prior to the Closing.
(b) NO PENDING SUITS. No suit or other proceeding shall be pending
or threatened before any court or Governmental Entity seeking
to restrain, prohibit, or declare illegal, or seeking
substantial damages in connection with, the transactions
contemplated by the Agreement.
(c) H-S-R. All applicable waiting periods, if any, shall have
expired under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act, or early termination of such waiting periods shall have
been granted by the appropriate Governmental Entities.
23
(d) OPERATORSHIP. Buyer shall have received from the MMS evidence
of approval and recognition by the MMS of Buyer as operator of
the Beta Unit and the Beta Tangible Assets.
(e) ADDITIONAL DOCUMENTS. Noble shall have delivered or provided
to Buyer all Contracts, information, approvals, documents and
instruments required to be delivered or provided by Noble
pursuant to this Agreement.
(f) ACTIONS. Noble shall have taken all actions described in
SECTION 7.02 as being required of Noble.
ARTICLE 8. TERMINATION
8.01. EVENTS OF TERMINATION. This Agreement may be terminated at any
time prior to the Closing:
(a) As provided in SECTION 6.03(c)(iii).
(b) by mutual written consent of Buyer and Noble;
(c) by Noble, if the Closing has not occurred on or before March
31, 2007; or
(d) by Noble, with written notice to Buyer if there is a material
violation or breach by Buyer of any covenant, representation,
warranty or obligation contained in this Agreement and such
violation or breach has not been waived by Noble or cured by
Buyer within seven (7) days after receipt of written notice
thereof from Noble.
8.02. EFFECT OF TERMINATION. A Party shall not have the right to
terminate this Agreement under SECTION 8.01 if it is then in breach of this
Agreement. If this Agreement is terminated in accordance with SECTION 8.01, such
termination shall be without liability to either Party, except with respect to a
Party who has willfully breached this Agreement and except that performance of
the obligations contained in this SECTION 8.02 and in SECTIONS 4.07 and 19.15
shall survive termination of this Agreement. Notwithstanding the termination of
this Agreement or any other provision of this Agreement to the contrary, the
terms of any confidentiality provisions contained in any agreement between the
Parties shall remain in full force and effect.
24
ARTICLE 9. CERTAIN OBLIGATIONS AFTER CLOSING
After the Closing, Noble and Buyer shall each take the following
actions:
9.01. FILING AND RECORDING. Noble will decide which Party will file or
record the conveyancing documents in the appropriate governmental records. The
recording Party will provide either the original or photocopies of the filed or
recorded document, including the recording data, as agreed by the Parties, to
the non-recording Party. Buyer shall reimburse Noble for the filing, recording,
and other reasonable fees that Noble incurs if Noble files or records the
documents.
9.02. FURTHER ASSURANCES. Buyer and Noble each shall, from time to time
after Closing and upon reasonable request from the other Party, execute,
acknowledge and deliver in proper form any conveyance, assignment, transfer or
other instrument reasonably necessary to accomplish the purposes of this
Agreement (including the correction of scrivener's errors in the preparation of
documents delivered at Closing).
9.03. POST-CLOSING THIRD-PARTY CONSENTS.
(a) If Noble elects to close without all third-party Consents,
Buyer shall use its best efforts and proceed diligently after
the Closing to obtain and promptly provide evidence of them to
Noble.
(b) Buyer will be responsible for all amounts due under Contracts,
including the Related Agreements, as to any Beta Interest that
requires approval for assignment, from the Effective Time
forward.
25
9.04. BUYER'S COMPLIANCE. From and after the Closing, Buyer shall
comply with (a) all Applicable Laws applicable to Buyer's ownership or operation
of the Beta Unit, the Beta Tangible Assets and the Beta Interests and the
Property, and with (b) all Related Agreements, in either case insofar as they
concern or pertain to the Beta Interests.
9.05. ALLOCATION OF PROCEEDS, COSTS AND Expenses. All proceeds,
receipts, reimbursements, receivables, credits and income attributable to the
Beta Interests, including all rights to production of Oil and Gas and proceeds
from the sale of such production, to the extent accruing during the period prior
to the Effective Time, shall be for the account of Noble, as determined pursuant
to the Unit Operating Agreement and the Beta Unit ▇▇▇▇▇. All proceeds, receipts,
reimbursements, receivables, credits and income attributable to the Beta
Interests, including all rights to production of Oil and Gas and proceeds from
the sale of such production, accruing during the period from and after the
Effective Time, shall be for the account of Buyer, as determined pursuant to the
Unit Operating Agreement and the Beta Unit ▇▇▇▇▇. All amounts due from one Party
to the other under this SECTION 9.05, to the extent then known and fixed, may be
made by debits and credits in the Final Settlement Statement.
9.06. PLUGGING AND ABANDONING ▇▇▇▇▇ AND PLATFORMS; REMEDIATION;
SECURITY FOR BUYER'S OBLIGATIONS.
(a) Buyer recognizes, assumes and covenants to either timely
perform and accomplish properly, or cause to be timely
performed and accomplished properly, in accordance with
Applicable Law and the Related Agreements, all of Noble's
obligations to abandon, restore and remediate the Beta
Interests and the Property affected thereby, whether arising
before or after the Effective Time, including obligations, as
applicable, to:
(i) obtain plugging exceptions in Operator's name for
each Well with a current plugging exception, or
permanently plug and abandon the Well;
(ii) plug, abandon, and if necessary, reabandon each Well;
(iii) remove all equipment and facilities, including
flowlines, pipelines, and platforms, including
Platform Eureka, Platform Elly and Platform ▇▇▇▇▇;
(iv) close all pits; and
(v) restore the surface, subsurface, seabed and offshore
sites associated with the Beta Tangible Assets or the
Property (all of the foregoing in this SECTION
9.06(a), "ABANDONMENT Obligations").
(b) Buyer will pay all costs and expenses associated with the
obligations assumed under this SECTION 9.06(a). Buyer shall
post with the MMS one or more performance bonds, a letter of
credit, in form and substance satisfactory to Noble, a cash
deposit, U.S. Treasury notes or other forms of financial
security (including any supplemental bonds) to guarantee
Buyer's performance and payment of all of the Abandonment
Obligations (each such bond, a "GOVERNMENTAL BOND"). Buyer
will provide to Noble appropriate evidence that the
Governmental Bond has been obtained and has been filed with
the MMS in accordance with Applicable Laws, to guarantee
Buyer's performance and payment of the Abandonment
Obligations. Buyer agrees that it will execute an amendment to
Exhibit K to insert and include Noble as a "predecessor" as
defined in said Exhibit and well use its best efforts to
persuade Aera, SWEPI, the MMS and the U.S. Bank National
Association to agree to execute the same amendment.
(c) Buyer shall maintain accurate records of its actual
expenditures incurred in performing the Abandonment
Obligations, and shall promptly deliver to Noble copies of any
reports of such expenditures sent to Aera, as required under
the Aera/PERL Beta PSA, or as Noble may otherwise reasonably
request. Noble or its authorized representatives may audit
Buyer's records for the purpose of verifying the actual
expenditures incurred in performing the Abandonment
Obligations. Any disputes concerning the amount of such
expenditures or their attribution to performance of
Abandonment Obligations shall be resolved in accordance with
SECTION 14.06 below.
26
(d) Until all Abandonment Obligations have been performed in
compliance with Applicable Law, Buyer shall:
(i) Not request a reduction in the amount of a
Governmental Bond without first consulting with
Noble;
(ii) Monitor the value of each Governmental Bond in
accordance with Applicable Law and, in the event that
Buyer determines that the value of any Governmental
Bond is less than the amount required by the MMS,
notify Noble promptly thereof;
(iii) Notify Noble promptly after any proposal or demand by
the MMS to increase or decrease the amount of any
Governmental Bond;
(iv) Furnish to the MMS any additional funds or other
security required in the event that the MMS increases
the required amount of any Governmental Bond, and
furnish Noble with evidence reasonably satisfactory
to Noble of compliance with such requirement;
(v) Notify Noble promptly after receipt of a notice of
forfeiture of any Required Bond received from the MMS
or any other Governmental Entity, including a notice
given pursuant to 30 C.F.R. 250.59(c)(1) or any
similar regulation;
(vi) Request that the MMS give to Noble notice of
forfeiture of any Required Bond given by the MMS
pursuant to 30 C.F.R. 250.59(c)(1) or any similar
regulation;
(vii) So long as any amount of any Governmental Bond and
all other Required Bonds remains available to satisfy
Abandonment Obligations, request that the MMS and
each other Governmental Entity utilize the
Governmental Bonds and other Required Bonds to
satisfy all Abandonment Obligations that Buyer is
unable to perform or satisfy; and
(viii) Not direct, request, suggest or agree that the MMS or
any Governmental Entity make a claim against Noble
for any portion of the Abandonment Obligations that
Buyer is unable to perform or satisfy until all
Governmental Bonds and all Required Bonds and all
other security are first exhausted.
(e) Buyer hereby grants to Noble a continuing security interest in
each Governmental Bond and the proceeds thereof, and any
substitute or replacement security given from time to time, to
secure Buyer's payment and performance of the Abandonment
Obligations. Such security interest shall be senior to all
other liens, security interests, pledges and other
encumbrances and the pledge by Buyer of the Governmental Bonds
in favor of the MMS to secure payment and performance of the
Abandonment Obligations, and Buyer shall not grant to any
other Person (other than the MMS) a lien, security interest,
pledge or encumbrance that is senior to the security interest
held by Noble and shall cause any creditor of Buyer (other
than the MMS) to execute and deliver to Noble an instrument
subordinating any security interest in the Governmental Bond
held by such creditor to the security interest granted to
Noble. Buyer hereby authorizes Noble to file financing
statements and continuations thereof under the Uniform
Commercial Code to perfect such security interest. With
respect to such security interest, Noble shall have the rights
and remedies of a secured party under the Uniform Commercial
Code. Buyer, its successors and assigns, shall ensure that
Noble, its successors and assigns, has the benefit of such
security interest at all times until the Abandonment
Obligations have been paid and performed in compliance with
Applicable Law.
9.07. INSURANCE. Prior to Closing Buyer shall make arrangements to
purchase and shall, effective with the Effective Time, thereafter maintain in
full force and effect (a) liability insurance (on a claims made basis) for
sudden and accidental leaks or spills covering Buyer's ownership and operation
27
of the Beta Tangible Assets (including Noble's obligations under any permit,
license or other approval granted by any Governmental Entity pertaining to the
Beta Tangible Assets and any liability of Noble as a result of being named on or
the holder of such permit, license or approval) in the amount of Fifty Million
and No Hundredths Dollars ($50,000,000) per accident or occurrence with a policy
aggregate totaling Fifty Million and No Hundredths Dollars ($50,000,000) onshore
and offshore, with a deductible not in excess of $1,000,000; and (b) commercial
general liability insurance (on a claims made basis) in the amount of One
Hundred Million and No Hundredths Dollars ($100,000,000) per accident or
occurrence with a policy aggregate totaling One Hundred Million and No
Hundredths Dollars ($100,000,000) onshore and offshore, with a deductible not in
excess of $1,000,000, in each case from insurance carriers having a claims
payment rating of A or better from Standard & Poor's; having an endorsement
naming Noble as the additional insured with the inclusion of a severability of
interest clause (cross liability); and waiving subrogation against Noble, each
of which shall be primary as to any other existing, valid and collectible
insurance, self-insurance or fronting policy of insurance of Buyer and/or Noble
and its Affiliates. All such insurance shall be effective as of the Effective
Time. Such insurance shall specifically provide that covered liabilities include
those indemnities and other obligations assumed by Buyer pursuant to ARTICLE 16
below. Such insurance shall specifically provide that the insurer agrees not to
cancel or materially reduce the insurance coverage without furnishing at least
thirty (30) days' prior written notice to Noble. Such insurance is to remain in
effect until all necessary Governmental Entities and Contract parties have
approved the completion of all Abandonment Obligations assumed by Buyer
hereunder. Such insurance in no way limits Buyer's obligation with respect to
any Liabilities or Claims resulting from Buyer's ownership and operation of the
Beta Tangible Assets or the Properties, oil spills, abandonment of ▇▇▇▇▇,
facilities and remediation of the surface, subsurface and waters as required
herein or Buyer's obligations and agreements (including indemnity obligations)
under any provision of this Agreement. The forgoing insurance requirements shall
be in addition to, and independent of, any applicable insurance requirements of
any Governmental Entity related to Buyer's direct and indirect ownership and
operation of the Beta Tangible Assets.
9.08. PREPARATION OF FINAL SETTLEMENT STATEMENT. By 210 days after the
Effective Time, Noble shall prepare and deliver to Buyer a final settlement
statement (the "FINAL SETTLEMENT STATEMENT"), which shall deduct royalties,
operating expenses, taxes, overhead and other amounts due to Noble from amounts
due to Buyer as provided in this Agreement, with adjustments as necessary for
items identified after Closing. Noble may set off any resulting amount due to
Buyer against amounts that Buyer may otherwise owe to Noble when the Final
Settlement Statement is prepared. Buyer and Noble hereby agree and acknowledge
that Noble may, in its sole discretion, delegate any or all of its rights and
obligations under this SECTION 9.08 to an Affiliate of Noble or any other
Person.
9.09. BUYER'S RESPONSE TO FINAL SETTLEMENT STATEMENT. Buyer shall
respond in writing with objections and proposed corrections within thirty (30)
days after receiving the Final Settlement Statement. If the Parties cannot
resolve their differences within ninety (90) days after Noble's receipt of
Buyer's objections, then the alternate-dispute-resolution and arbitration
procedures of this Agreement shall be triggered. If Buyer does not respond to
the Final Settlement Statement by signing or objecting in writing within the
thirty (30) day period, the statement shall be deemed approved by Buyer. After
approval of the Final Settlement Statement, Noble shall send a check or invoice,
as the case may be, to Buyer for the net amount due to Buyer or from Buyer,
respectively. If payment is not made within thirty (30) days of Buyer's
receiving the invoice, the amount due may, at Noble's option, bear interest at a
rate of twelve percent (12%) per annum, compounded daily, or the maximum lawful
rate, whichever is less, from the date of Buyer's receipt of the invoice until
paid. Inquiries, objections and proposed corrections regarding the Final
Settlement Statement must be in writing, addressed to:
Noble Energy, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
ARTICLE 10. TAXES, COSTS, AND FEES
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10.01. REAL PROPERTY TAXES. As for Noble's portion (as a Working
Interest Owner) of any ad valorem taxes (including production-based ad valorem
taxes), real property taxes, and similar obligations, if any, imposed on the
Beta Interests or the Property according to their value ("REAL PROPERTY TAXES"),
such obligation will be apportioned between Noble and Buyer as of the Effective
Time. Whether the Beta Interests are valued based on the previous year's
production or any other basis, Buyer is obligated to pay the current year's ad
valorem tax assessment and all subsequent Real Property Taxes, subject to the
following apportionment provisions. The basis of the apportionment will be the
assessment for the tax year in which the Effective Time occurs or, if that
assessment is not known, then the basis of the apportionment will be the
assessment for the previous tax year. Buyer will be responsible for all Real
Property Taxes and interest that are applied to the Beta Interests retroactively
after the Effective Time.
10.02. PRODUCTION TAXES. All taxes (other than Real Property Taxes and
income taxes) imposed on or with respect to the production of Oil, Gas, or other
hydrocarbons or minerals, or the receipt of proceeds from their sale (including
severance, production, and excise taxes) attributable to the Beta Interests will
be apportioned between the Parties as of the Effective Time. Noble will be
responsible for paying or withholding its portion of all such taxes that have
accrued before the Effective Time and for filing all statements, returns, and
documents pertinent to them. Buyer will be responsible for paying or withholding
all such taxes that accrue or are applied retroactively after the Effective
Time; for filing all statements, returns, documents incident to them; and for
obtaining reimbursements, if any, relating to those taxes.
10.03. OTHER TAXES. Buyer will pay all applicable state and local sales
taxes, use taxes, gross receipts taxes, business license taxes, other taxes
(except taxes imposed by reason of income to Noble) and fees. Buyer will pay all
state and local taxes, including penalty and interest, if any, assessed after
the Effective Time against either Party with respect to this transaction or, if
paid by Noble, Buyer will promptly reimburse Noble for amounts paid. Buyer will
pay all documentary stamp taxes and documentary transfer taxes. For tangible
personal property located in California that Buyer intends to be used in
offshore waters, Buyer agrees to execute the California Sales Tax Exemption set
forth in EXHIBIT H.
10.04. DELEGATION. Buyer and Noble hereby agree and acknowledge that
Noble may, in its sole discretion, delegate any or all of its rights and
obligations under this ARTICLE 10 to an Affiliate of Noble or any other Person.
ARTICLE 11. OIL IN STORAGE, PROCEEDS, COSTS,
EXPENSES, CLAIMS, AND DISBURSEMENTS
11.01. OIL IN STORAGE.
(a) All Oil in storage at the Effective Time, including working
inventory, attributable to the Beta Interests, shall belong to
Noble. Subject to Buyer's payment for such Oil as set forth
below, title to Oil in storage that was produced from the Beta
Unit and is attributable to the Beta Interests will transfer
to Buyer at the Closing, but effective as of the Effective
Time.
(b) Noble shall retain its ownership in its portion of Oil
downstream of the LACT Unit on Platform Elly at the Effective
Time, including Oil in stock tanks, wash tanks, heater
treaters, flowlines, and pipelines. At the Effective Time,
Aera will either run or gauge the Oil in storage with respect
to the Beta Unit. At Closing, Buyer will pay to Noble an
amount equal to $179,577.46, which amount is agreed to be a
good faith estimate of the value of Noble's Oil in storage and
in pipelines as of the Effective Time (the "INVENTORY CLOSING
AMOUNT"). Such amount shall be subject to adjustment after the
Closing in the preparation of the Final Settlement Statement
to account for the difference between the value of (x) the
actual amount of Oil in storage and attributable to the Beta
Interests and the value of such Oil (determined pursuant to
SECTION 11.01(d)), and (y) the amount of the Inventory Closing
Amount.
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(c) Noble will use measured Oil inventories in the Final
Settlement Statement, if available or, if not available, then
estimated Oil inventories. The estimates will be based on the
average month-end inventories of the three (3) most recent
calendar months prior to the Effective Time. If there is a
difference between the value of the estimated Oil in storage
and the value of inventories run or gauged at the Effective
Time, Noble may include the difference in the Final Settlement
Statement.
(d) Oil inventories will be priced, at Noble's option, at either
(i) the average of the two highest prices, as determined by
Noble, posted by other purchasing companies in the field or
locality where the Beta Interest is located, for Oil of like
grade and gravity, in effect at the Effective Time; or (ii)
the average, actual price received from the sale of Oil
shipped from the Beta Unit by Buyer during the month in which
the Effective Time occurs.
11.02. RESERVATION OF CLAIMS. At the Closing, Noble shall reserve all
Claims, accounts receivable and rights of any kind concerning the Beta Interests
or Properties against third Persons, which Claims, accounts receivable or rights
accrue before the Effective Time (including those against overriding royalty
owners, royalty owners, working-interest owners, and Oil or Gas purchasers),
whether discovered before or after the Effective Time or the Closing, whichever
is later.
11.03. RESERVATION OF RESERVED PRODUCTION PAYMENT. In the Assignment
and ▇▇▇▇ of Sale, Noble shall reserve and except from the assignment of the Beta
Interests a dollar-denominated production payment (the "RESERVED PRODUCTION
PAYMENT") in the amount of One Million, One Hundred Thirty Three Thousand, Three
Hundred Thirty Three and 33/100 ($1,133,333.33), payable solely from the Oil
production attributable to the ▇▇▇▇▇ drilled from Platform Eureka and
attributable to the Beta Interests. The Reserved Production Payment is payable
from and after Payout. The Parties agree to rely on the Oil production reported
by Buyer, in good faith, to the MMS and subject to the following terms, in
establishing the time that Payout occurs.
(a) Platform Eureka currently has no meter to measure Oil produced
and shipped from Platform Eureka. Oil shipped to Platform Elly
from Platform Eureka shall be metered there in accordance with
a protocol developed by Buyer and approved in writing by Aera
and Noble; provided that, if and when dehydration equipment is
installed and used on Platform Eureka, Oil produced from
Platform Eureka shall be measured on Platform Eureka.
(b) All such methods used by Buyer to measure Oil production from
Platform Eureka shall be subject to review and approval by
Aera and Noble in their reasonable discretion. In addition,
Noble will have the right from time to time to require that
the meters and/or other equipment utilized for such
measurement be tested at reasonable intervals and Noble will
have the right to witness such metering, all in accordance
with procedures to be agreed upon by the Parties acting in
good faith.
(c) Noble, upon notice in writing to Buyer, will have the right to
audit Buyer's accounts and records relating to the payment of
the Reserved Production Payment and/or the computation of Oil
production from Platform Eureka, and any other records
relating to the determination of the amounts due hereunder.
30
11.04. DELEGATION. Buyer and Noble hereby agree and acknowledge that
Noble may, in its sole discretion, delegate any or all of its rights and
obligations under this ARTICLE 11 to Aera, an Affiliate of Noble or any other
Person.
ARTICLE 12. PREFERENTIAL RIGHT TO PURCHASE OIL
Noble will not reserve any preferential right to purchase Oil produced
from the Beta Interests after the Effective Time.
ARTICLE 13. PREFERENTIAL RIGHT TO PURCHASE GAS
Noble will not reserve any preferential right to purchase Gas produced
from the Beta Interests after the Effective Time.
ARTICLE 14. BUYER'S RELEASE, DISCHARGE, AND COVENANT NOT TO ▇▇▇; BUYER'S
OBLIGATIONS TO INDEMNIFY, DEFEND, AND HOLD HARMLESS; DISPUTE RESOLUTION
14.01. BUYER'S RELEASE AND DISCHARGE OF NOBLE AND ITS ASSOCIATED
PARTIES. Buyer releases and discharges Noble and its Associated Parties from
each Claim and Liability relating to the Beta Interests, the Property, the SPBP
Interests, the Quitclaimed Interests or the transactions contemplated hereby
(including all Abandonment Obligations), regardless of when or how the Claim or
Liability arose or accrued, or arises or accrues, or whether the Claim or
Liability is foreseeable or unforeseeable. BUYER'S RELEASE AND DISCHARGE OF
NOBLE AND ITS ASSOCIATED PARTIES INCLUDE CLAIMS AND LIABILITIES RESULTING IN ANY
WAY FROM THE NEGLIGENCE OR STRICT LIABILITY OF NOBLE OR ITS ASSOCIATED PARTIES,
WHETHER THE NEGLIGENCE OR STRICT LIABILITY IS ACTIVE, PASSIVE, JOINT, OR
CONCURRENT. The only exception to Buyer's release and discharge of Noble and its
Associated Parties is stated in SECTION 14.04(c), and the release and discharge
are binding on Buyer and its successors and assigns.
14.02. BUYER'S COVENANT NOT TO ▇▇▇ ▇▇▇▇▇ OR ITS ASSOCIATED PARTIES.
Buyer covenants not to ▇▇▇ ▇▇▇▇▇ or its Associated Parties with regard to any
Claim or Liability relating to the Beta Interests, the Property, the SPBP
Interests, the Quitclaimed Interests or the transactions contemplated hereby
(including any Abandonment Obligations), regardless of when or how the Claim or
Liability arose or accrued, or arises or accrues, or whether the Claim or
Liability is foreseeable or unforeseeable. BUYER'S COVENANT NOT TO ▇▇▇ ▇▇▇▇▇ OR
ITS ASSOCIATED PARTIES INCLUDES CLAIMS AND LIABILITIES RESULTING IN ANY WAY FROM
THE NEGLIGENCE OR STRICT LIABILITY OF NOBLE OR ITS ASSOCIATED PARTIES, WHETHER
THE NEGLIGENCE OR STRICT LIABILITY IS ACTIVE, PASSIVE, JOINT, OR CONCURRENT. The
only exception to Buyer's covenant not to ▇▇▇ ▇▇▇▇▇ or its Associated Parties is
stated in SECTION 14.04(c), and the covenant is binding on Buyer and its
successors and assigns.
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14.03. BUYER'S OBLIGATIONS TO INDEMNIFY, DEFEND, RELEASE AND HOLD NOBLE
AND ITS ASSOCIATED PARTIES HARMLESS. Buyer will indemnify, defend, and hold
harmless Noble and its Associated Parties for, and will pay to Noble the amount
of, each Claim and Liability relating to, arising, directly or indirectly, from
or in connection with:
(a) any breach of any representation or warranty made by Buyer in
this Agreement, the Assignment and ▇▇▇▇ of Sale or any other
certificate or document delivered by Buyer pursuant to this
Agreement;
(b) any breach by Buyer of any covenant or obligation of Buyer in
this Agreement, the Assignment and ▇▇▇▇ of Sale or any other
certificate or document delivered by Buyer pursuant to this
Agreement; and
(c) the Beta Interests, the Property, the SPBP Interests, the
Quitclaimed Interests or the transactions contemplated hereby
(including all Abandonment Obligations),
regardless of when or how the Claim or Liability arose or accrued, or arises or
accrues, or whether the Claim or Liability is foreseeable or unforeseeable.
BUYER'S OBLIGATIONS TO INDEMNIFY, DEFEND, RELEASE AND HOLD NOBLE AND ITS
ASSOCIATED PARTIES HARMLESS INCLUDE CLAIMS AND LIABILITIES RESULTING IN ANY WAY
FROM THE NEGLIGENCE OR STRICT LIABILITY OF NOBLE OR ITS ASSOCIATED PARTIES,
WHETHER THE NEGLIGENCE OR STRICT LIABILITY IS ACTIVE, PASSIVE, JOINT, OR
CONCURRENT. The only exception to Buyer's obligations to indemnify, defend, and
hold Noble and its Associated Parties harmless is stated in SECTION 14.04(c),
and the obligations are binding on Buyer and its successors and assigns.
14.04. BUYER'S OBLIGATIONS.
(a) In each instance of Buyer's obligations to release, discharge,
indemnify, defend, release and hold Noble and its Associated
Parties harmless and its covenant not to ▇▇▇ ▇▇▇▇▇ or its
Associated Parties, the Claims and Liabilities subject to the
obligations include the following:
(i) the ownership of the Beta Interests, the Property,
the Quitclaimed Interests, if any, and the SPBP
Interests, if any, by Noble or its Associated
Parties, the operation of the Beta Tangible Assets,
and the acts or omissions of Noble or its Associated
Parties in connection with the Beta Interests, the
Property, the SPBP Interests, the Quitclaimed
Interests or the Related Agreements, whether arising
or accruing before or after the Effective Time.
32
(ii) the ownership of the Beta Interests, the Quitclaimed
Interests or the SPBP Interests by Buyer or the
SPBPC, as the case may be, the operation of the Beta
Interests, Beta Tangible Assets, the SPBP Interests,
the SPBP Tangible Assets, the Quitclaimed Interests
and the Property by Buyer or its Associated Parties,
and the acts or omissions of Buyer or its Associated
Parties in connection with the Beta Interests, the
SPBP Interests, the Property, the Quitclaimed
Interests or under this Agreement or the Related
Agreements, whether arising or accruing before or
after the Effective Time.
(iii) the acts or omissions of third Persons relating to
the Property, the SPBP Interests, the Quitclaimed
Interests or the Beta Interests.
(b) Buyer's obligations under this Agreement to release,
discharge, indemnify, defend, and hold Noble and its
Associated Parties harmless and its covenant not to ▇▇▇ ▇▇▇▇▇
or its Associated Parties include Claims and Liabilities
arising in any manner from the following:
(i) preferential and similar rights held by PRP Holders
to purchase any portion of the Beta Interests;
(ii) the review, inspection and assessment of the Beta
Interests, the SPBP Interests, the Quitclaimed
Interests and the Property by Buyer and its
Associated Parties;
(iii) any error in describing the Beta Interests, the SPBP
Interests, the Quitclaimed Interests or the Property,
or any error in the conveyancing instruments;
(iv) rights and obligations of the Parties or third
Persons under the Related Agreements;
(v) closing without a Consent;
(vi) failure by third Persons to approve or consent to any
aspect of this transaction after Closing;
(vii) obligations to plug and abandon ▇▇▇▇▇ and platforms
and remediate the Beta Tangible Assets, SPBP Tangible
Assets, and the Property;
(viii) payment of Real Property Taxes or other taxes
applicable to any of the Beta Interests, the SPBP
Interests, the Quitclaimed Interests and any
Property;
(ix) payments or disbursements paid or payable by Noble or
Buyer to third Persons;
(x) a physical or environmental condition relating to the
Beta Tangible Assets, SPBP Tangible Assets or any
Property, including Claims and Liabilities under the
Environmental Laws, or failure to comply with the
Environmental Laws;
33
(xi) remediation activities, including damages incurred by
Buyer or its Associated Parties during or arising
from remediation activities;
(xii) lawsuits filed before the Effective Time, but amended
after the Effective Time to include the Beta
Interests, the SPBP Interests, the Quitclaimed
Interests or Property or Noble's ownership of or
activities regarding the Beta Interests, the SPBP
Interests, the Quitclaimed Interests or Property; and
(xiii) obligations to inspect (including any pigging
operation) or to repair or recondition any of the
Beta Interests, or the SPBP Interests, the
Quitclaimed Interests or the Property.
(c) Buyer's obligations to indemnify, defend, release and hold
Noble and its Associated Parties harmless do not apply,
however, to
(i) Claims or Liabilities with respect to the Beta
Interests, or the Property that result from a
judgment rendered or settlement reached in a lawsuit
filed before the Effective Time, but only to the
extent that acts or omissions that gave rise to the
cause of action are attributable to the conduct or
operation or ownership of Noble or its Associated
Parties before the Effective Time; or
(ii) Claims that Noble breached this Agreement or the
Transaction Documents.
(d) The Parties recognize that certain lawsuits with respect to,
the Property, the SPBP Interests, the Quitclaimed Interests
and/or the Beta Interests may have been filed before the
Effective Time, but concern activities continuing after the
Effective Time, so that after Closing, Buyer may be a proper
party to such lawsuits. For these lawsuits, Buyer's
obligations to indemnify, defend, release and hold Noble and
its Associated Parties harmless will apply to activities
occurring after the Effective Time. Noble will continue to
defend its own interests and provide principal counsel in an
action under this SECTION 14.04(d) for which it remains a
party after the Effective Time.
14.05. BUYER'S DUTY TO DEFEND. Buyer acknowledges that its obligations
to indemnify, defend, release and hold Noble and its Associated Parties harmless
under this Agreement include obligations to pay the attorneys' fees and court
and other costs incurred by Noble and its Associated Parties in defending all
Claims. As to each Claim and Liability, Noble, at its sole option, may elect to
(a) manage its own defense, in which event Buyer shall reimburse Noble and its
Associated Parties for all attorneys' fees and court and other costs reasonably
incurred in defending a Claim, upon delivery to Buyer of invoices for these fees
and costs; or (b) tender its defense as to any Claim to Buyer, in which event
Buyer will be responsible for all aspects of defending the Claim at issue and
resulting Liabilities.
14.06. ALTERNATE DISPUTE RESOLUTION AND ARBITRATION.
34
(a) This section applies to any dispute between the Parties,
arising at any time, that is not subject to Buyer's release
and discharge of Noble and its Associated Parties or Buyer's
covenant not to ▇▇▇ ▇▇▇▇▇ or its Associated Parties or is not
specifically excluded under this section. Whether a dispute is
subject to Buyer's release, discharge or covenant not to ▇▇▇
or to this section (or is excluded from this section by its
terms), and whether there is a contract between the Parties,
are issues that will be resolved under the alternate dispute
resolution and arbitration provisions set forth or described
in this section.
(b) As to the disputes subject to this section, any Claim or
controversy of whatever nature, including an action in tort or
Contract or a statutory action ("DISPUTED CLAIM"), or the
arbitrability of a Disputed Claim, will be resolved under the
terms, conditions, and procedures set forth in EXHIBIT D and
will be binding on both Parties and their respective
successors and assigns. Neither Party may prosecute or
commence any suit or action against the other Party relating
to any matters that are subject to this section.
(c) Noble will determine, at its sole option, whether a Claim
filed by a third Person against Buyer or Noble will be subject
to this section. If Buyer has notified Noble before Closing of
a Disputed Claim by Buyer before Closing and the Disputed
Claim is not resolved before Closing, the Disputed Claim will
not be subject to this section unless agreed by the Parties.
14.07. BUYER'S WAIVER OF CONSUMER RIGHTS UNDER ANY CALIFORNIA CONSUMER
PROTECTION LAWS. AS PARTIAL CONSIDERATION TO NOBLE TO ENTER INTO THIS AGREEMENT,
TO THE EXTENT THAT ANY CALIFORNIA CONSUMER PROTECTION LAWS ARE APPLICABLE TO
THIS TRANSACTION, BUYER CAN AND DOES EXPRESSLY WAIVE ITS RIGHTS UNDER SUCH
CALIFORNIA CONSUMER PROTECTION LAWS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS
OWN SELECTION, BUYER VOLUNTARILY CONSENTS TO THIS WAIVER. IN ADDITION, BUYER
WAIVES ITS RIGHTS UNDER ALL OTHER CONSUMER PROTECTION LAWS IN OTHER STATES
APPLICABLE TO THIS TRANSACTION THAT MAY BE WAIVED BY THE PARTIES.
14.08. RETROACTIVE EFFECT. In addition to the assumption of liabilities
and releases and indemnities in the Agreement applicable to times from and after
the Execution Date, Buyer acknowledges that its obligations to release,
discharge, defend, and hold Noble and its Associated Parties harmless and its
covenant not to ▇▇▇ ▇▇▇▇▇ or its Associated Parties apply to matters occurring
or arising before the Execution Date to the extent provided in this Agreement.
35
14.09. INDUCEMENT TO NOBLE. BUYER ACKNOWLEDGES THAT IT HAS EVALUATED
ITS OBLIGATIONS UNDER THIS ARTICLE BEFORE IT DETERMINED AND SUBMITTED ITS OFFER
TO PURCHASE THE BETA INTERESTS AND THAT ITS ASSUMPTION OF THESE OBLIGATIONS IS A
MATERIAL INDUCEMENT TO NOBLE TO ENTER INTO THIS AGREEMENT WITH, AND CLOSE THE
SALE TO, BUYER.
ARTICLE 15. ENVIRONMENTAL MATTERS
15.01. BUYER'S ACKNOWLEDGMENT CONCERNING POSSIBLE CONTAMINATION OF THE
BETA TANGIBLE ASSETS, AND THE PROPERTY. Buyer is aware that the Beta Tangible
Assets, SPBP Tangible Assets and the Property have been used for exploration,
development, production, processing and transportation of Oil and Gas and that
there may be petroleum, produced water, wastes, or other materials located on or
under the Property or associated with the Beta Tangible Assets, SPBP Tangible
Assets and sites included in the Beta Tangible Assets, SPBP Tangible Assets or
the Property may contain asbestos, hazardous substances, or NORM. NORM may affix
or attach itself to the inside of ▇▇▇▇▇, materials, and equipment as scale, or
in other forms; the ▇▇▇▇▇, materials, and equipment located on the Property or
included in the Beta Interests, SPBP Interests or Quitclaimed Interests may
contain NORM and other wastes or hazardous substances; and NORM-containing
material and other wastes or hazardous substances may have been buried, come in
contact with the soil, or otherwise been disposed of on the Property. Special
procedures may be required for the remediation, removal, transportation, or
disposal of wastes, asbestos, hazardous substances, and NORM from the Beta
Tangible Assets, SPBP Tangible Assets and the Property.
BUYER WILL ASSUME ALL LIABILITY FOR THE ASSESSMENT, REMEDIATION,
REMOVAL, TRANSPORTATION, AND DISPOSAL OF WASTES, ASBESTOS, HAZARDOUS SUBSTANCES,
AND NORM FROM THE BETA TANGIBLE ASSETS, SPBP TANGIBLE ASSETS AND THE PROPERTY
AND ASSOCIATED ACTIVITIES AND WILL CONDUCT THESE ACTIVITIES IN ACCORDANCE WITH
ALL APPLICABLE LAWS, INCLUDING THE ENVIRONMENTAL LAWS.
15.02. DISPOSAL OF MATERIALS, SUBSTANCES, AND WASTES; COMPLIANCE WITH
LAW. Buyer shall store, handle, transport and dispose of or discharge all
materials, substances, and wastes from the Beta Tangible Assets and the Property
(including produced water, drilling fluids, NORM, and other wastes), whether
present before or after the Effective Time, in accordance with Applicable Laws.
Buyer shall keep records of the types, amounts, and location of materials,
substances, and wastes that are stored, transported, handled, discharged,
released, or disposed of onsite and offsite. When any OCS Lease or other lease
included in the Beta Interests terminates or Buyer subsequently transfers any
portion of the Beta Interests, SPBP Interests or Quitclaimed Interests, Buyer
shall undertake additional testing, assessment, closure, reporting, or remedial
action with respect to the Beta Tangible Assets, SPBP Tangible Assets or
Property as is necessary to satisfy all local, state, or federal requirements in
effect at that time and necessary to restore the Beta Interests, Quitclaimed
Interests, SPBP Interests, Beta Tangible Assets, SPBP Tangible Assets and the
Property.
ARTICLE 16. GAS MATTERS
Buyer acknowledges that all Gas produced from the Beta Unit is consumed
in the operation of the Beta Unit. Accordingly, the Parties do not believe there
are any material gas imbalances affecting the Beta Interests, and no adjustments
are necessary or appropriate for any over-production or under-production of Gas
by Noble prior to the Effective Time.
36
ARTICLE 17. REPRESENTATIONS AND WARRANTIES
17.01. REPRESENTATIONS BY NOBLE. Noble represents and warrants to Buyer
as follows:
(a) Noble is a corporation duly organized, validly existing and in
good standing under the Applicable Laws of the State of
Delaware.
(b) Noble has all requisite power and authority to execute,
deliver, and perform this Agreement and the Transaction
Documents to which it is a party and to consummate the
transactions contemplated hereunder and thereunder. The
execution, delivery, and performance of this Agreement and the
Transaction Documents to which Noble is a party have been duly
authorized by all requisite limited partnership action, and
this Agreement and the Transaction Documents to which it is a
party has been duly executed and delivered by Noble.
(c) This Agreement constitutes, and the Transaction Documents to
which it is a party, when executed and delivered by Noble will
constitute, the legal, valid and binding obligation of Noble,
enforceable against Noble in accordance with its terms, except
as enforceability may be subject to (i) bankruptcy,
insolvency, reorganization or other similar Applicable Laws
now or hereafter in effect affecting the enforcement of
creditors rights generally, and (ii) general principles of
equity (regardless of whether enforceability is considered in
a proceeding in equity or at law).
(d) The execution and delivery by Noble of this Agreement and the
Transaction Documents to which it is a party and the
performance by Noble of the terms hereof and thereof do not
conflict with or result in a violation of:
(i) the Organizational Documents of Noble, or
(ii) any material agreement, instrument, order, writ,
judgment, or decree to which Noble is a party or is
subject.
(e) Neither Noble nor any Affiliate of Noble has incurred any
liability, contingent or otherwise, for broker's fees,
finder's fees, agent's commissions, or other similar forms of
compensation in connection with this Agreement or any contract
or transaction contemplated hereby for which Buyer shall have
any responsibility whatsoever. Noble releases Buyer from, and
shall fully protect, indemnify, and defend Buyer and hold it
harmless from and against, any and all Liabilities relating
to, arising out of, or connected with, directly or indirectly,
commissions, finders' fees, or other remuneration due to any
such agent, broker, or finder claiming by, through, or under
Noble or any Affiliate of Noble.
17.02. REPRESENTATIONS BY BUYER. Buyer represents and warrants to Noble
as follows:
37
(a) EXISTENCE. Buyer is a corporation duly organized, validly
existing and in good standing under the Applicable Laws of the
State of Delaware.
(b) POWER, AUTHORIZATION, EXECUTION. Buyer has all requisite
corporate power and authority to execute, deliver, and perform
this Agreement and the Transaction Documents to which it is a
party and to consummate the transactions contemplated
hereunder and thereunder. The execution, delivery, and
performance of this Agreement and the Transaction Documents to
which Buyer is a party have been duly authorized by all
requisite corporate action, and this Agreement and the
Transaction Documents to which it is a party has been duly
executed and delivered by Buyer.
(c) ENFORCEABILITY. This Agreement constitutes, and the
Transaction Documents to which it is a party, when executed
and delivered by Buyer will constitute, the legal, valid and
binding obligation of Buyer, enforceable against Buyer in
accordance with its terms, except as enforceability may be
subject to (i) bankruptcy, insolvency, reorganization or other
similar Applicable Laws now or hereafter in effect affecting
the enforcement of creditors rights generally, and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law).
(d) NON-CONTRAVENTION. The execution and delivery by Buyer of this
Agreement and the Transaction Documents to which it is a party
and the performance by Buyer of the terms hereof and thereof
do not conflict with or result in a violation of:
(i) the Organizational Documents of Buyer, or
(ii) any material agreement, instrument, order, writ,
judgment, or decree to which Buyer is a party or is
subject.
(e) BROKERS. Neither Buyer nor any Affiliate of Buyer has incurred
any liability, contingent or otherwise, for broker's fees,
finder's fees, agent's commissions, or other similar forms of
compensation in connection with this Agreement or any contract
or transaction contemplated hereby or thereby for which Noble
shall have any responsibility whatsoever. Buyer releases Noble
and its Associated Parties from, and shall fully protect,
indemnify, and defend the Noble Group and hold it harmless
from and against, any and all Liabilities relating to, arising
out of or connected with, directly or indirectly, commissions,
finders' fees, or other remuneration due to any such agent,
broker, or finder claiming by, through, or under Buyer or any
Affiliate of Buyer.
38
(f) INVESTIGATION. Buyer, for itself and on behalf of its
Affiliates, investors, shareholders, directors and officers,
represents and warrants that it is knowledgeable of the oil
and gas business and of the usual and customary practices of
producers and operators such as Noble. Buyer has had access to
and an opportunity to inspect all relevant information
relating to the Beta Interests and the Property, sufficient to
enable Buyer to evaluate the merits and risks of its
acquisition of the Beta Interests and the Property. Buyer has
had the opportunity to ask questions and receive answers
relating to the Beta Interests and the Property. In making its
decision to enter into this Agreement and to consummate the
transactions contemplated herein, Buyer has relied solely upon
the representations and warranties made in this Agreement and
upon its contractual rights in this Agreement to conduct its
own independent, due-diligence investigation of the Beta
Interests and the Property. ACCORDINGLY, BUYER, FOR ITSELF AND
ON BEHALF OF ITS ASSOCIATED PARTIES ACKNOWLEDGES THAT NOBLE
FOR ITSELF AND FOR ITS ASSOCIATED PARTIES, HEREBY EXPRESSLY
DISCLAIMS AND NEGATES, ANY REPRESENTATIONS OR WARRANTIES
(OTHER THAN THOSE EXPRESS REPRESENTATIONS AND WARRANTIES MADE
IN THIS AGREEMENT), WHETHER EXPRESS, IMPLIED, AT COMMON LAW,
BY STATUTE OR OTHERWISE, RELATING TO THE BETA INTERESTS AND
THE PROPERTY.
(g) INVESTMENT MATTERS. Buyer:
(i) is an "accredited investor," as defined in Rule 501
of Regulation D promulgated under the Securities Act;
(ii) is acquiring the Beta Interests for its own benefit
and account and not with a view toward any sale or
distribution thereof, nor with any present intention
of making a distribution of any fractional undivided
interests within the meaning of the Securities Act or
any applicable state blue sky laws or other
applicable securities laws; and
(iii) has received and thoroughly read this Agreement,
including all schedules and exhibits hereto. Buyer
has had an opportunity to discuss this Agreement and
the disclosures herein with its legal counsel. Buyer
acknowledges that it has had the opportunity to ask
questions of Noble and its Associated Parties and
that Buyer has received satisfactory answers
respecting, and has obtained such additional
information as Buyer has desired in connection with,
the transactions contemplated by this Agreement.
(h) FUNDS AVAILABLE. Buyer has (or in the case of clause (ii)
below, will have, upon Payout), sufficient funds to enable it
to:
(i) pay the Purchase Price; and
39
(ii) post the bonds described in SECTION 7.03(d).
(i) BANKRUPTCY. There are no bankruptcy, reorganization or
arrangement proceedings pending against, contemplated by, or
to the knowledge of Buyer, threatened against Buyer.
(j) SECURITIES MATTERS.
(i) Buyer acknowledges that the Beta Interests have not
been registered under the Securities Act or any other
securities laws and may be sold, assigned, pledged or
otherwise disposed of in the absence of such
registration only pursuant to an exemption from such
registration and in accordance with this Agreement.
(ii) Buyer intends to acquire the Beta Interests for its
own benefit and account and is not acquiring the Beta
Interests with the intent of distributing fractional
undivided interests in them or otherwise selling them
in a manner that would be subject to regulation by
federal or state securities laws. If Buyer sells,
transfers, or otherwise disposes of the Beta
Interests, or fractional undivided interests in them
in the future, it will do so in compliance with
Applicable Laws.
(iii) Buyer has at no time been presented with or solicited
by or through any public promotion or other form of
advertising in connection with this transaction.
(k) BASIS OF BUYER'S DECISION. Buyer:
(i) has reviewed and investigated the Beta Interests and
the Property to its satisfaction in order to enter
into this Agreement;
(ii) has evaluated the Beta Interests and the Property to
its satisfaction and has made an informed decision,
as a prudent and knowledgeable Buyer, to acquire the
Beta Interests;
(iii) is knowledgeable and experienced in the evaluation,
acquisition, and operation of oil and gas properties;
(iv) has evaluated the merits and risks of purchasing the
Beta Interests and has formed an opinion based solely
upon its knowledge and experience and not in reliance
on any statements or actions by Noble or its
Associated Parties; and
(v) is acquiring the Beta Interests "AS IS, WHERE IS,
WITH ALL FAULTS."
(l) MATERIAL FACTOR. Buyer acknowledges that its representations
and warranties contained in this Agreement are a material
inducement to Noble to enter into this Agreement with Buyer,
and to close the transactions contemplated hereunder.
ARTICLE 18. COMMUNICATIONS
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Unless otherwise provided in this Agreement, any notice, request,
instruction, correspondence or other document to be given hereunder by either
Party to the other shall be in writing and delivered in person or by courier
service requiring acknowledgment of receipt of delivery or mailed by certified
mail, postage prepaid and return receipt requested, or by telecopier, as
follows:
IF TO NOBLE: IF TO BUYER:
------------ ------------
NOBLE ENERGY, INC. Pacific Energy Resources Ltd.
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Chairman and
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 100 Chief Executive Officer
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(t) ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(f) ▇▇▇-▇▇▇-▇▇▇▇ (t) 562-628-1526
(f) ▇▇▇-▇▇▇-▇▇▇▇
Notice given by personal delivery, courier service or mail shall be
effective upon actual receipt. Notice given by telecopier shall be effective
upon actual receipt if received during the recipient's normal business hours, or
at the beginning of the recipient's next business day after receipt if not
received during the recipient's normal business hours. Any Party may change any
address to which notice is to be given to it by giving Notice as provided above
of such change of address.
ARTICLE 19. MISCELLANEOUS
19.01. ENTIRE AGREEMENT. This Agreement, the Escrow Agreement and the
other documents and instruments and other agreements specifically referred to
herein or delivered pursuant hereto, including the exhibits and the schedules
hereto (collectively, the "TRANSACTION DOCUMENTS"), (a) constitute the entire
agreement between the Parties with respect to the subject matter hereof; and
supersede all prior agreements and understandings, both written and oral,
between the Parties with respect to the subject matter hereof; and (b) are not
intended to confer upon any other Person any rights or remedies hereunder. Each
Party agrees that (i) the other Party (including its agents and representatives)
has made no other representation, warranty, covenant or agreement to or with
such Party relating to the transactions contemplated hereby other than those
expressly set forth in the Transaction Documents, and (ii) such Party has not
relied upon any representation, warranty, covenant or agreement relating to the
transactions contemplated hereby, other than those referred to in clause (i)
above.
19.02. SUCCESSORS AND ASSIGNS; AMENDMENT; Survival. This Agreement is
binding on and inures to the benefit of the Parties and their respective
successors, heirs, representatives, and assigns and may be supplemented,
altered, amended, modified, or revoked only in writing signed by both Parties.
Neither the assignment of this Agreement nor of any Beta Interests or any part
of them will relieve Buyer of its obligations under this Agreement unless and to
the extent Noble consents in writing to release Buyer, which consent may be
withheld for any reason. All of the covenants, agreements, representations and
warranties, and indemnities made by each Party contained in this Agreement shall
survive the Escrow Opening and the Closing.
19.03. EXCLUSIVE REMEDY. If the Closing occurs, the express indemnities
set forth in this Agreement shall be the exclusive remedies for the Parties for
the breach of any representation, warranty or covenant set forth in this
Agreement or any Claim arising out of, resulting from or related to the
41
transactions contemplated hereby, and each Party hereby releases, waives and
discharges, and covenants not to ▇▇▇ (and shall cause its Associated Parties to
release, waive, discharge and covenant not to ▇▇▇) with respect to, any cause of
action not expressly provided for in this Agreement, including Claims under
state or federal securities Laws and Claims available at common law, in equity
or by statute.
19.04. CHOICE OF LAW. This Agreement and its performance shall be
construed in accordance with, and enforced under, the internal laws of the State
of California, without regard to choice of law rules of any jurisdiction,
including California.
19.05. ASSIGNMENT. Neither this Agreement nor the rights and
obligations under it may be assigned or delegated by Buyer without Noble's prior
written consent, which consent may be withheld for any reason, and an attempted
assignment or delegation by Buyer is void.
19.06. NO ADMISSIONS. Neither this Agreement, nor any part of it, nor
any performance under this Agreement, nor any payment of any amount under this
Agreement, shall constitute or may be construed as a finding, evidence of, or an
admission or acknowledgment of any liability, fault, past or present wrongdoing,
or violation of law, rule, regulation, or policy, by either Noble or Buyer or
their respective Associated Parties.
19.07. NO THIRD-PARTY BENEFICIARIES. Except as set forth in SECTION
19.02(e) or ARTICLE 17, there are no third-party beneficiaries of this
Agreement.
19.08. PUBLIC COMMUNICATIONS. Unless provided otherwise in this
Agreement, Buyer shall not issue or cause to be issued any press release or
public communication concerning this transaction without Noble's prior written
consent, which consent shall not be unreasonably withheld.
19.09. HEADINGS AND TITLES. The headings and titles in this Agreement
are for guidance and convenience of reference only and do not limit or otherwise
affect or interpret the terms or provisions of this Agreement.
19.10. BULK TRANSFER LAw. Buyer waives compliance with the provisions
of any applicable bulk sales or bulk transfers Law.
19.11. SEVERABILITY. The provisions of this Agreement are severable at
Noble's option. If a court of competent jurisdiction finds any part of this
Agreement to be void, invalid or otherwise unenforceable, then Noble may decide
whether to enforce this Agreement without the void, invalid, or unenforceable
parts or to terminate this Agreement.
19.12. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all of which
together shall be considered one instrument.
19.13. NOT TO BE CONSTRUED AGAINST THE DRAFTER. Each Party acknowledges
that it has read this Agreement, has had opportunity to review it with an
attorney of its choice, and has agreed to all of its terms. Under these
circumstances, the Parties agree that the rule of construction that a contract
be construed against the drafter may not be applied in interpreting this
Agreement.
42
19.14. NO WAIVER. No waiver by either Party of any part of this
Agreement shall be deemed to be a waiver of any other part of this Agreement or
a waiver of strict performance of the waived part in the future.
19.15. EXPENSES. Except as otherwise expressly provided herein, all
expenses incurred by each Party in connection with the transaction contemplated
herein, including, without limitation, attorney's fees, are for the account of
the Party incurring the same, and the Party incurring such expenses shall
defend, indemnify, and hold harmless the other Party from and against such
expenses.
19.16. TIME OF ESSENCE. Time is of the essence in the performance of
this Agreement.
19.17. H-S-R. If either Noble or Buyer determine that the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, is applicable
to this transaction, then the Parties which are required to file shall file with
the Federal Trade Commission and the Department of Justice the required
notifications, reports, and supplemental information to comply in all respects
with the requirements of said act.
19.18. NO PARTNERSHIP. Nothing contained in this Agreement shall be
deemed to create a joint venture, partnership, tax partnership, or agency
relationship between the Parties.
19.19. FOREIGN TRADE LAW COMPLIANCE. Both Parties agree that all
imports, exports, and re-exports, if any, under this Agreement shall be
undertaken in accordance with all Applicable Laws of the United States with
respect to foreign trade and export control. Both Parties further agree to fully
cooperate in complying with such Applicable Laws and in assisting the other
Party with such compliance. If licenses of any kind are required, including
United States trade or export licenses, exports/re-exports and/or technology
sharing will occur only after such license(s) have been obtained. Buyer shall
notify Noble of any request of a United States Governmental Entity for
information, documentation, or data relating to any Contract that Buyer has
entered into with Noble. Buyer shall provide responses to requests from a United
States Government Entity for information, documentation, or data of any kind to
such entity promptly upon request. Copies of the responses to a United States
Governmental Entity shall be provided to Noble promptly upon Noble's request.
Noble is relying upon the representations and warranties of Buyer that
it shall fully comply with all United States foreign trade and export control
laws and regulations including any prohibitions on the transfer or release of
products or technology contrary to such Applicable Laws or regulations.
19.20. RULES OF CONSTRUCTION. For purposes of this Agreement:
(a) Unless the context otherwise requires, (i) "or" is not
exclusive; (ii) an accounting term not otherwise defined has
the meaning assigned to it in accordance with the Unit
Operating Agreement, the Beta Unit ▇▇▇▇▇ and, lastly, GAAP;
(iii) words in the singular include the plural and words in
the plural include the singular; (iv) words in the masculine
include the feminine and words in the feminine include the
masculine; (v) any date specified for any action that is not a
Business Day shall be deemed to mean the first Business Day
after such date; (vi) a reference to a Party includes its
successors and permitted assigns; (vii) the word "includes"
and its syntactical variants mean "includes, but is not
limited to" and corresponding syntactical variants, and the
rule EJUSDEM GENERIS shall not be invoked to restrict or limit
the scope of the general term or phrase followed or preceded
by an enumeration of particular examples; (viii) the words
"hereof," "herein," and "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; and (ix) any reference
to dollars shall be a reference to U.S. dollars.
43
(b) References in this Agreement to Articles, Parts, Sections, or
other subdivisions are, unless otherwise specified, to
corresponding Articles, Parts, Sections, or other subdivisions
of this Agreement. Neither the captions to Articles, Parts,
Sections, or other subdivisions of this Agreement (including
the section headings of this SECTION 19.20(b)), nor the Table
of Contents, shall be deemed to be a part of this Agreement or
this SECTION 19.20(b).
(c) All Exhibits and Schedules to this Agreement are hereby
incorporated by reference herein, form a part of this
Agreement, and shall have the same force and effect as if
actually set out in the body of this Agreement. All references
to this Agreement shall include all Exhibits and Schedules, as
well as all attachments incorporated herein. All references in
this Agreement to Exhibits and Schedules refer to the Exhibits
and Schedules to this Agreement, unless expressly provided
otherwise.
(d) In the event of a conflict between (i) the provisions of this
Agreement and (ii) the provisions of any other document, the
provisions of this Agreement shall control and prevail as
between the Parties; PROVIDED, HOWEVER, that notwithstanding
the foregoing, in the event of a conflict between (x) the
provisions of this Agreement and (y) the provisions of any tax
partnership agreement entered into between the Parties with
respect to any of Noble's Interests, the tax matters
provisions contained in any such tax partnership agreement
shall control and prevail as between the Parties.
(e) References herein to any agreement or other instrument shall,
unless the context otherwise requires (or the definition
thereof otherwise specifies), be references to the same as it
may from time to time be changed, amended, modified, amended
and restated, or extended.
[SIGNATURE PAGE FOLLOWS]
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The Parties have executed this Agreement on the date below their
signatures, to be enforceable and binding as of the Execution Date.
PACIFIC ENERGY RESOURCES LTD. NOBLE ENERGY, INC.
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman and Chief Executive Officer Title: Vice-President
Date: February 28, 2007 Date: February 28, 2007
45