FIRST AMENDED AND RESTATED PROGRAM AGREEMENT
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THIS FIRST AMENDED AND RESTATED PROGRAM AGREEMENT (Agreement), dated
February 6, 2006, is between ▇▇▇▇▇▇▇ COMPANY (▇▇▇▇▇▇▇) and PETROSEARCH ENERGY
CORPORATION (Petrosearch).
WHEREAS, ▇▇▇▇▇▇▇ and Petrosearch previously entered into that certain
Program Agreement dated as of January 24, 2006 (the "The Program Agreement"),
And
WHEREAS, ▇▇▇▇▇▇▇ and Petrosearch desire to amend and restate the Program
Agreement on the terms and conditions set forth herein; and
WHEREAS, ▇▇▇▇▇▇▇ entered into a Memorandum of Understanding Regarding Gas
Evacuation from ExxonMobil and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Shale E&P Venture with ExxonMobil
Gas & Power Marketing (Exxon G&P) on June 24, 2005 concerning the possible
evacuation of natural gas through one or more pipelines owned by Exxon G&P in
Dallas, Denton, Ellis, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Counties (MOU); and
WHEREAS, ▇▇▇▇▇▇▇ entered into a Lease Acquisition and Exploration Agreement
for Dallas, Denton, Ellis, Johnson, and Tarrant Counties, Texas with Exxon Mobil
Corporation (Exxon) dated June 29, 2005 (E&P Agreement) providing for the
acquisition and development of oil and gas leases (Leases) in the area shown on
Exhibit A (Contract Area) and the terms not otherwise defined in this Agreement
shall have the same meaning as set forth in the MOU and E&P Agreement; and
WHEREAS, Petrosearch has agreed to participate with ▇▇▇▇▇▇▇ in the
acquisition and development of an undivided interest in the Leases in the
Contract Area; and
WHEREAS, Petrosearch has agreed to fund $28,000,000 in accordance with the
terms of this Agreement to acquire working interests in Leases in the Contract
Area and to pay its proportionate share, at its discretion and in accordance
with the terms of this Agreement, to acquire an undivided working interest in
Leases in the Contract Area and drill the lesser of a minimum of 15 ▇▇▇▇▇ or a
sufficient number of ▇▇▇▇▇ to insure that the production volume from ▇▇▇▇▇
averages no less than 10 Million cubic feet of gas per day within ninety (90)
days from the acceptance of the pipeline pursuant to agreements with Exxon and
30 million cubic feet of gas per day within one hundred and eighty (180) days
from the acceptance of the pipeline pursuant to agreements with Exxon; and
WHEREAS, ▇▇▇▇▇▇▇ has agreed to offer terms to Petrosearch pursuant to this
Agreement which will be no less favorable than those offered others investing in
this project other than PostScriptum and its affiliates for the period of one
hundred eighty days from the execution of this Agreement; and
NOW, THEREFORE, in consideration of the above premises, the parties hereby
agree as follows:
1. COMMITMENT BY PETROSEARCH/PROPORTIONATE REDUCTION. ▇▇▇▇▇▇▇ and
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Petrosearch agree that Petrosearch shall have the right to invest TWENTY EIGHT
MILLION AND NO/100 DOLLARS ($28,000,000.00) under this Program Agreement
(Petrosearch Commitment). Said Petrosearch Commitment shall be funded by the
"Initial Payment" described in 2. below and the balance will be paid upon the
presentation of invoices by ▇▇▇▇▇▇▇ in accordance to the terms of this
Agreement. Should Petrosearch pay less than the total Petrosearch Commitment of
$28,000,000.00 due to the inability of Petrosearch to consummate its
investor/lender financing for the project to the full extent of the
$28,000,000.00 sum, then the percentage leasehold ownership, revenue sharing and
cost-bearing interests described in this Agreement shall each be proportionately
reduced. Proportionate reduction shall NOT apply to a failure to fund the full
$28,000,000.00 as a result of one of the following events: a) termination of the
E&P Agreement by Exxon prior to expenditure of such sum; b) failure of ▇▇▇▇▇▇▇
to expend the full sum (i.e^ aggregate invoices presented by ▇▇▇▇▇▇▇ to
Petrosearch do not equal such sum); or c) early termination of this Agreement by
Petrosearch due to the occurrence of one of the events set forth in this
Agreement entitling Petrosearch to terminate. All references in this Agreement
to the "Petrosearch Commitment" shall refer to the actual funds invested by
Petrosearch of up to $28,000,000.00. Should, except as provided above,
Petrosearch not invest the total amount of the Petrosearch Commitment of
$28,000,000.00 the parties shall promptly reconcile the financial accounting and
the percentage ownership in the Leases and ▇▇▇▇▇ to reflect, proportionately,
the amount actually invested. In the event Petrosearch funds less than
$5,000,000.00, such investment will entitle Petrosearch to one percent (1%) per
$2,400,000 invested and all interests will be adjusted accordingly. By example,
should Petrosearch fund only $4,000,000.00 of the total Petrosearch Commitment,
the Petrosearch ownership referred to elsewhere herein would change as follows:
34.432% would reduce to 4.919%, 24.938% would reduce to 3.563% and 14% would
reduce to 1.667%.
2. CLOSING. Upon signing this Agreement, ▇▇▇▇▇▇▇ shall provide
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Petrosearch with a Certificate from an officer of ▇▇▇▇▇▇▇ certifying that none
of the agreements with Exxon G&P and Exxon relating to the Project Area that
have previously been provided Petrosearch have been amended. On or before
February 6, 2006 (Closing), Petrosearch shall wire to ▇▇▇▇▇▇▇, as an initial
commitment, TWO MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS
($2,800,000.00) (Initial Payment). ▇▇▇▇▇▇▇ may apply the Initial Payment funds
as set forth in 10. below. If, for any reason, Petrosearch fails to deliver the
Initial Payment at Closing, then ▇▇▇▇▇▇▇ may terminate this Agreement as its
sole remedy and neither party shall have any further duty or obligation to the
other.
3. PROGRAM BUDGETING AND ADMINISTRATION. ▇▇▇▇▇▇▇ shall serve as
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operator of the Leases and shall budget the funds invested by Petrosearch and
allocate the funds for both leasing activities and drilling operations in a
manner which shall achieve sufficient drilled ▇▇▇▇▇ to meet all of the
volumetric requirements set forth in the E&P Agreement. ▇▇▇▇▇▇▇ shall provide
Petrosearch with a copy of all such budgets initially and as may be amended from
time to time, and shall grant Petrosearch reasonable access to all financial
records pertaining to the Leases and activities in the Contract Area. ▇▇▇▇▇▇▇
represents and warrants to Petrosearch that it shall notify Petrosearch in
writing prior to entering into any agreement or amendment with Exxon G&P or
Exxon after the date of execution of this Agreement and that ▇▇▇▇▇▇▇ will not
intentionally enter into any
agreement or amendment which adversely affects Petrosearch as it pertains to
this Agreement.
4. LEASE ACQUISITION ACTIVITIES.
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a. Proportionate Reduction. All leasehold interests acquired
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pursuant to this Agreement shall be proportionately reduced to reflect the
mineral interest covered by the particular Lease acquired.
b. Cost Bearing and Ownership Percentages. As ▇▇▇▇▇▇▇ acquires
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Leases pursuant to the terms of the E&P Agreement, Petrosearch shall be
entitled to participate in such Lease acquisitions. Until the expenditure
of the Petrosearch Commitment, Petrosearch shall pay thirty four and four
hundred and thirty-two one thousandths percent (34.432%) of the acquisition
costs of the Leases and shall be entitled to an undivided twenty four and
nine hundred and thirty-eight one thousandths percent (24.938%) working
interest in each Lease subject only to the burdens on said Leases created
pursuant to the terms of this Agreement. The Leases shall not be subject to
any burdens other than the landowner's royalties and those provided in the
E&P Agreement. After the expenditure of the Petrosearch Commitment,
Petrosearch's share of Lease acquisition costs shall be fourteen percent
(14%). Upon achieving "Payout" (as hereinafter defined), Petrosearch shall
own a fourteen percent (14%) working interest in all Leases and ▇▇▇▇▇▇▇
shall own a ten and nine hundred and thirty-eight one thousandths (10.938%)
working interest in all Leases as provided pursuant to the terms this
Agreement.
c. Disposition of Leases prior to Payout. In the event of a
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disposition of any Lease prior to Payout, the parties shall share the
proceeds of such disposition in the proportion which the purchase of such
Lease was funded.
d. Leasing Procedures. The parties to this Agreement will follow
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the same procedures set forth in Section 4.3 of the E&P Agreement with
regard to the acquisition of said Leases. It is provided, however, that
Petrosearch shall have only ten (10) working days from Petrosearch's
receipt of the lease acquisition proposal to pay its share of the Lease
Acquisition Costs for each Lease acquired pursuant to the terms of this
Agreement rather than the time limit provided in the E&P Agreement. It is
further provided that until the Petrosearch Commitment is expended,
Petrosearch shall not have the option of electing not to participate in the
acquisition of a Lease in the Contract Area prior to the expenditure of the
Petrosearch Commitment unless i) Exxon elects not to participate in the
acquisition of its proportionate share of the Lease in which case
Petrosearch shall have the longer of three (3) days from the time of being
notified of Exxon's election or the balance of the ten (10) day election
period in order to decide whether or not to participate in the acquisition
of the Lease or ii) either Exxon or ▇▇▇▇▇▇▇ have elected to terminate the
E&P Agreement. In any event, should Petrosearch elect not to participate in
the acquisition of said Lease, the Lease shall thereafter be excluded from
the terms of this Agreement. After the expenditure of
the Petrosearch Commitment, should ▇▇▇▇▇▇▇ elect to acquire a Lease in the
Contract Area and Petrosearch elect not to participate in the acquisition
of that Lease, such Lease shall thereafter be excluded from the terms of
this Agreement. Leases acquired by Petrosearch shall be owned in the
proportions set forth in 4(b) above.
e. If Exxon elects to cancel the E&P Agreement before
Petrosearch has expended its Petrosearch Commitment under the terms of this
Agreement as provided below, ▇▇▇▇▇▇▇ may elect to continue acquiring Leases
pursuant to the terms of this Agreement, whereupon, Petrosearch, in its
sole discretion, may elect to continue to fund said acquisition, or ▇▇▇▇▇▇▇
may elect to cease acquiring Leases in the Contract Area. In the event
▇▇▇▇▇▇▇ elects to continue to acquire Leases and Petrosearch continues to
fund said acquisition, said Leases shall be acquired and owned in the same
proportions set forth in 4(b) above.
5. OPERATING AGREEMENT.
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a. Use of Model Form. This Agreement will be governed by and
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will include a standard form operating agreement pursuant to which ▇▇▇▇▇▇▇
will be the Operator of the Leases subject to the terms of this Agreement
and will carry out operations. The form of operating agreement shall be the
same form of operating agreement which is attached as Exhibit C to the E&P
Agreement (Operating Agreement). The parties will hold their interests
pursuant to the terms of the Exxon G&P Agreement and the E&P Agreement and
this Agreement and the operations will be conducted pursuant to the terms
of said Operating Agreement.
b. Overhead Rates. Overhead rates under the Operating Agreement
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between ▇▇▇▇▇▇▇ and Petrosearch will be as set out in the ▇▇▇▇▇ Accounting
Procedure attached as Exhibit C to the Operating Agreement.
c. Non-consent Stipulations. Except as set forth in 1. above,
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until Petrosearch has expended a sum equal to the Petrosearch Commitment
pursuant to the terms of this Agreement, Petrosearch shall not have the
right to non-consent to any operation or Lease acquisition conducted
pursuant to the terms of the Operating Agreement. To the extent operations
are conducted after the expenditure of the Petrosearch Commitment, and
Petrosearch has the option of non-consenting to such operations, then the
non-consent operations will be governed by the non-consent provisions of
the Operating Agreement. It is provided, however, that should Petrosearch
elect to not participate in the drilling of a well proposed pursuant to the
terms of the Operating Agreement, (a Non- consent Well), Petrosearch shall
be deemed non-consent for that well, its proration unit and all future
leases and ▇▇▇▇▇ within one proration ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
(▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇) and shall relinquish all its title to such Leases within
the Non-Consent Area to ▇▇▇▇▇▇▇ (and ▇▇▇▇▇▇▇ shall reimburse Petrosearch
for its actual costs incurred in acquiring said Leases) and Petrosearch
shall thereafter neither pay for nor own an interest in such Leases and
▇▇▇▇▇ in the
Non-Consent Area and such Leases and ▇▇▇▇▇ shall be excluded from the terms
of this Agreement. Nothing in this section, however, shall be interpreted
so as to cause Petrosearch to lose its interest in Leases to the extent
they are within a proration unit which contains a well which is within the
Non-Consent Area which Petrosearch has already earned through drilling. In
the event that ▇▇▇▇▇▇▇ elects non-consent status as to the drilling of a
well under the Operating Agreement, ▇▇▇▇▇▇▇ shall be deemed to be
non-consent for that well, its proration unit and all future leases and
▇▇▇▇▇ within one proration ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇)
and shall relinquish all its title to such Leases to the extent they are
within the Non-Consent Area to Petrosearch (and Petrosearch shall reimburse
▇▇▇▇▇▇▇ for its actual costs incurred in acquiring said Leases) and
thereafter ▇▇▇▇▇▇▇ shall neither pay for nor own an interest in such Leases
and ▇▇▇▇▇ in the Non-Consent Area, and such Leases and ▇▇▇▇▇ shall be
excluded from the terms of this Agreement. Nothing in this section,
however, shall be interpreted so as to cause ▇▇▇▇▇▇▇ to lose its interest
in Leases to the extent they are within a proration unit which contains a
well which is within the Non-Consent Area which ▇▇▇▇▇▇▇ has already earned
through drilling.
6. DRILLING COSTS ALLOCATION. Petrosearch will pay 34.432% of the costs
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incurred in exploration, including, without limitation, geological and
geophysical costs and the drilling, and if completed, the completion (or if
plugged and abandoned, plugging and abandoning) of each well as well as the cost
of preparing said gas and laying gathering lines and connecting said well to a
transmission line from the Leases until such time as Petrosearch has expended
amounts in the aggregate equal to its Petrosearch Commitment. After the
expenditure of the Petrosearch Commitment, each party shall pay such costs,
which will be billed in the proportions, ▇▇▇▇▇▇▇ 20.432% and Petrosearch 14.0%
subject to the non-consent provisions of the Operating Agreement and subject to
proportionate reduction described in 1. above.
7. OPERATING COSTS ALLOCATION. Petrosearch will pay 24.938% of
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operating costs until "Payout" as herein defined. After "Payout", the parties
shall pay operating costs in the proportions: ▇▇▇▇▇▇▇ 10.938% and Petrosearch
14.0% subject to the non-consent provisions of the Operating Agreement and this
Agreement.
8. DEFINITION OF PAYOUT. For purposes of this Agreement, "Payout" shall
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mean the first day of the calendar month following the day during which
"Distributions" actually paid to Petrosearch equal the Petrosearch Commitment.
For purposes of this provision, Distributions are defined as proceeds from the
sale of assets and revenues paid to the working interest which are net of
operating costs, production and ad valorem taxes, royalties and overriding
royalties.
9. LEASEHOLD REVENUE INTEREST ALLOCATIONS. Until Payout, Petrosearch
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shall receive 24.938% of the net revenues from production attributable to all
▇▇▇▇▇ drilled pursuant to the terms of this Agreement. After Payout, net
revenues from the 24.938% working interest shall be shared in the proportions
▇▇▇▇▇▇▇ 10.938% and Petrosearch 14.0%, subject to proportionate reduction as
outlined in 1. above.
10. INITIAL PAYMENT AND APPLICATION OF SAME. The $2,800,000 Initial
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Payment shall be used to pay costs in the manner detailed on Exhibit C to the
Operating Agreement. The payments will be for land costs and the costs of
conducting and interpreting seismic and geological surveys incurred in acquiring
leases and costs related to the drilling, completing and operation of one or
more ▇▇▇▇▇ within the Contract Area as referenced in Section 5.1 of the E&P
Agreement (and as described on Exhibit C of the E&P Agreement).
11. PIPELINE ACCESS RIGHTS. ▇▇▇▇▇▇▇ shall make available and guarantee
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to Petrosearch that it shall enjoy the same right of access to the gas pipeline
provided for under the terms of the MOU or any definitive agreement which
supersedes the MOU. In the absense of such right, Petrosearch may terminate this
Agreement and exercise the repurchase "put" option set forth in 13. below.
12. ASSIGNMENT OF PROGRAM AGREEMENT RIGHTS. Except as set forth herein
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below, this Agreement may be not be assigned in whole or in part by Petrosearch
without the prior written consent of ▇▇▇▇▇▇▇, which consent will not be
unreasonably withheld. To the extent of any assignment by Petrosearch is
approved, the term "Petrosearch" shall refer to Petrosearch and any assignee.
This Agreement may not be assigned by ▇▇▇▇▇▇▇ without the prior written consent
of Petrosearch, which consent will not be unreasonably withheld. To the extent
that any assignment by ▇▇▇▇▇▇▇ is approved, the term "▇▇▇▇▇▇▇" shall refer to
▇▇▇▇▇▇▇ and any assignee. No assignment will be effective until the assignee
agrees in writing to the terms of this Agreement and assumes responsibility for
the interest so assigned. Petrosearch is hereby authorized to make the following
assignments without the consent of ▇▇▇▇▇▇▇: (i) assignments to persons or
entities in which Petrosearch holds an ownership interest; (ii) assignments in
connection with a merger, consolidation or combination involving the stock or
assets of Petrosearch: (iii) assignments to Petrosearch's investors or lenders
to secure financing, but in all such cases, prior to such assignment, such
assignee agrees in writing to the terms of this Agreement and assumes the
responsibility for such interest or (iv) and Petrosearch remains liable to
fulfill all obligations under the terms of this Agreement.
13. ADDITIONAL TERMINATION RIGHTS OF PETROSEARCH/REPURCHASE OPTION.
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Petrosearch is entering into this Agreement because of the expertise of ▇▇▇▇▇▇▇
as an operator. If a change in control of ▇▇▇▇▇▇▇ should occur, either by sale
or operation of law, or if ▇▇▇▇▇▇▇ ceases to be Operator under the Operating
Agreement, Petrosearch shall have the right, at its sole option, to terminate
this Agreement with respect to any future Leases to be acquired in the Contract
Area, and Petrosearch may cause ▇▇▇▇▇▇▇ to purchase its interest in both the
Leases and ▇▇▇▇▇. For Leases, the purchase price shall be reimbursement of all
actual original costs of acquisition paid by Petrosearch. With respect to ▇▇▇▇▇
(in which event it shall be all ▇▇▇▇▇) the purchase price shall be the original
actual costs incurred by Petrosearch less revenues distributed to Petrosearch to
that point in time. In order to be effective, a notice by Petrosearch to ▇▇▇▇▇▇▇
to effect such a repurchase must be in writing and delivered to ▇▇▇▇▇▇▇ within
sixty (60) days of such event and such notice shall include a statement of the
purchase price for the interests and shall designate a time, date, and place for
the closing of the assignment and purchase of the interests that will be at
least one hundred eighty (180) days from the date of the
notice. At such closing, ▇▇▇▇▇▇▇ shall deliver by wire transfer to a designated
account, the purchase price (less any sums received by Petrosearch pursuant to
the terms of this Agreement), and Petrosearch shall at the time of the exchange
of such funds assign all its right, title and interest in and to said interests
to ▇▇▇▇▇▇▇ pursuant to an assignment containing a special warranty of title and
free of all burdens except those in existence at the time ▇▇▇▇▇▇▇ assigned such
title to Petrosearch, and ▇▇▇▇▇▇▇ shall assume future liability with respect to
the interests. The parties agree that any dispute regarding the price shall be
handled in accordance with 15.(d) below.
14. PREFERENTIAL PURCHASE RIGHTS AND TAG ALONG RIGHTS. In the event
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that ▇▇▇▇▇▇▇ proposes to sell its interest in the Leases subject to the terms of
this Agreement to a third party, and ExxonMobil elects not to exercise its
rights under the E&P Agreement, Petrosearch shall be notified in writing of the
terms of the proposed sale and shall be entitled to match the terms of the offer
and to purchase the interests of ▇▇▇▇▇▇▇ as set forth in Section VIII.f. of the
Operating Agreement, except that the time period for exercise shall be thirty
(30) days rather than the prescribed period in the Operating Agreement. Should
Petrosearch decline such preferential purchase right and ▇▇▇▇▇▇▇ fail to
consummate the third party sale thereafter under the offered terms, then
Petrosearch's preferential purchase rights under this Section shall continue and
shall be applicable to future proposed sales by ▇▇▇▇▇▇▇, if any. The exercise of
any preferential right by Petrosearch shall be prorata with all other parties
entitled to participate in such right. Should Petrosearch decline to exercise
its preferential purchase rights, then alternatively, Petrosearch shall have the
option to proportionately participate with ▇▇▇▇▇▇▇ and all other parties
entitled to participate in the sale based upon the parties' relative ownership
percentages.
15. ADMINISTRATIVE PROVISIONS. The following administrative provisions
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shall apply to this Agreement:
a. Relationship of the Parties. This Agreement is not intended
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to create and will not be construed as creating any type of partnership,
joint venture, association or other relationship where either party will
become liable for the acts or obligations to the other party.
b. Notices. Except as otherwise specifically provided herein,
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all notices to be given under this Agreement shall be delivered in
accordance with the notice provisions of the Operating Agreement but the
addresses of the parties to this Agreement shall be those provided herein.
c. Entire Agreement. This Agreement including its Exhibits and
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the relative portions of the Operating Agreement represent the final and
entire agreement by and between the parties with respect to the subject
matter herein contained and supersedes all prior discussions and prior
agreements relating to such subject matter.
d. Dispute Resolution.
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i. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO ANY CONFLICT OF LAWS RULES THAT WOULD DIRECT
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. The venue for any
such determination shall be Dallas County, Texas.
ii. Arbitration. Any and all claims, demands, causes of
action, disputes, controversies and other matters in question arising
out of or relating to this Agreement, including any question regarding
its breach, existence, validity or termination, which the parties do
not resolve amicably, shall be resolved by one arbitrator in
accordance with the Arbitration Rules of the American Arbitration
Association. The place of arbitration shall be Dallas, Texas. The
resulting arbitral award shall be final and binding, and judgment upon
such award may be entered in any court having jurisdiction. A dispute
shall be deemed to have arisen when either party notifies the other
party in writing to that effect. The arbitrator, shall be a party
knowledgeable of the relevant area of law, shall be total impartial
and shall have no authority to award special, indirect, consequential,
exemplary or punitive damages.
e. Severability. If any provision of this Agreement is for any
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reason held to be in violation of any applicable law, governmental rule or
regulation, or if the provision is held to be unenforceable, then such
provision shall be deemed null and void. All other provisions of this
Agreement shall remain in full force and effect.
f. Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
g. Modifications and Amendments. This Agreement shall not be
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modified or amended except by a written document executed by an authorized
representative of both parties hereto.
h. News Releases and Public Announcement. Neither party shall
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issue any news release or make any public announcement relating to the
subject matter of this Agreement without the prior written approval of the
other party, which approval shall not be unreasonably or untimely withheld;
provided, however, that such prior approval shall not be required in the
event that a party is compelled to issue a release or announcement by
applicable securities laws or requirements of any Stock Exchange, but in
such event the affected party shall use its reasonable efforts to give the
other party at least forty-eight (48) hours advance notice of the content
of such release.
i. Conflicts. If a provision in the body of this Agreement
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is in conflict with a provision in an Exhibit hereto, the provision in the
body of this Agreement shall prevail. Additionally, if there is any
conflict between this Agreement and the Operating Agreement as it relates
to the parties hereto, the provisions of this Agreement shall prevail.
j. No Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
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CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL ONE PARTY BE LIABLE TO THE
OTHER PARTY FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL,
REMOTE, OR SPECULATIVE DAMAGES, EVEN IF CAUSED BY THE SOLE, JOINT, AND/OR
CONCURRENT NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OF A PARTY.
k. No Third-Party Beneficiaries. Nothing in this Agreement,
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expressed or implied, shall give or be construed to give any person, other
than the parties and their successors and permitted assigns, any legal or
equitable right, remedy or claim under or in respect to this Agreement,
except as specifically provided herein.
1. Interpretation.
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i. Headings. The topical headings used in this
Agreement are for convenience only and shall not be construed as
having any substantive significance or as indicating that all of the
provisions of this Agreement relating to any topic are to be found in
any particular article.
ii. Singular and Plural. Reference to the singular includes
a reference to the plural and vice versa.
iii. Gender. Reference to one gender includes a reference to
the other.
iv. Paragraph or Exhibit. Unless otherwise provided,
reference to any paragraph or an Exhibit means a paragraph or Exhibit
of this Agreement.
v. Include. The meaning of the words "include" and
"including" shall include "not limited to."
m. Counterpart Execution. This Agreement may be executed in two
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counterparts and each such counterpart shall be deemed an original
agreement for all purposes; provided that neither party shall be bound to
this Agreement unless and until both parties have executed a counterpart.
If this document is transmitted by facsimile machine, it shall be treated
for all purposes as an original document. The signature of any party on
this document transmitted by way of a facsimile machine shall be considered
for all purposes as an original signature and shall
have the same binding legal effect as an original signature on an original
document.
n. Waiver. No waiver by any party of any one or more defaults
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by another party in the performance of any provision of this Agreement
shall operate or be construed as a waiver of any future default or defaults
by the same party whether of a like or of a different character. Except as
expressly provided in this Agreement, no party shall be deemed to have
waived, released or modified any of its right under this Agreement unless
such party has expressly stated, in writing, that it does waive, release or
modify such right.
o. Joint Preparation. Each provision of this Agreement shall be
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construed as though all parties participated equally in the drafting of the
same. Consequently, the parties acknowledge and agree that any rule of
construction that a document is to be construed against the drafting party
shall not be applicable to this Agreement.
p. Favored Nations. It is provided that should ▇▇▇▇▇▇▇, within
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one hundred eighty (180) days after the execution of this Agreement, enter
into a comparable agreement with a third party (other than PostScriptum or
its affiliates) which provides more favorable terms to such third party
than provided in this Agreement, such terms shall be made available to
Petrosearch to improve the terms of this Agreement.
IN WITNESS WHEREOF, each party, through its duly authorized representative,
has executed this Agreement, to become binding on the parties effective as of
the date first above written.
SIGNATURES APPEAR ON FOLLOWING PAGE
▇▇▇▇▇▇▇ COMPANY
BY: /S/ ▇. ▇. ▇▇▇▇▇▇▇
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NAME: ▇. ▇. ▇▇▇▇▇▇▇
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TITLE: PRESIDENT AND CEO
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PETROSEARCH ENERGY CORPORATION
BY: /S/ ▇. ▇▇▇▇▇▇▇▇
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NAME: ▇. ▇▇▇▇▇▇▇▇
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TITLE: COO
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