PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT
("Agreement"),
dated this 12
th
day of October, 2018
("Execution
Date"),
is entered into by and
between Wyatt Petroleum LLC, and Wyatt Permian, LLC, whose address
is 24 Greenway, Suite 600, Houston, TX 77046 (collectively
"Seller") and Amazing Energy, LLC, whose address is 5700 W. Plano,
Suite 3600, Plano, TX 75093 ("Buyer"). Seller and Buyer may be
referred to individually as a
"Party"
or collectively as the
"Parties."
In
consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Sellers
agree as follows:
Article I
PURCHASE AND SALE
1.1
Agreement
to Sell and Buy.
Subject to
assignments and conveyances of record in
Pecos
County, TX, each Seller agrees to sell and assign to Buyer, and
Buyer agrees to purchase, pay for and receive from Sellers, the
Assets as defined below.
1.2
Assets.
The
"Assets"
are all of each Seller's right, title,
and interest in and to the
following:
(a)
The
estates and mineral rights created by the oil and gas leases,
leaseholds and mineral estates (the "Leases"), described in Exhibit
"A", and all oil, gas, water disposal and other wells located on
the Leases or on lands pooled therewith (the "Wells"), including,
but not limited to, the wells set forth in
Exhibit "A-1",
together with all of Seller's interest
in the rights and appurtenances incident
thereto.
(b)
All
of Seller's rights in, to, and under, and all obligations arising
from, all agreements relating to the Leases or Wells, including,
but not limited to, joint operating agreements, unitization
agreements, pooling agreements, farmout agreements,
drillingagreements, exploration agreements, oil or gas product
purchase and sale contracts, gas processing or transportation
agreements, leases, permits, rights-of-way, easements, licenses,
options, orders and decisions of state and federal regulatory
authorities establishing units which appear of record or in the
records which have otherwise been disclosed to Buyer.
(c)
All
of Seller's interest the oil and gas wells, including well bores,
pump jacks and motors, surface facilities, such as tanks and pumps,
salt water disposal, fixtures, personal property, facilities and
equipment, used or held for use or charged to the Leases or Wells
for production, treatment, transportation, sale or disposal of
hydrocarbons or water produced therefrom or attributable thereto
and further described on the attached spread sheet and photographs
collectively marked as
Exhibits "Bl" and "B2"
(the "Wells"), and all equipment
associated with the Wells as of the Closing
Date.
(d)
The
rights, to the extent transferable, in and to all existing and
effective unitization, pooling agreements, declarations and orders,
if any, to the extent that they relate to or affect any of the
interests described in
Exhibit
"A"
or the post-Effective Time production of Hydrocarbons,
if any, from the Leases and Lands.
(e)
The
rights, to the extent transferable, in and to the electronic and
hard copy well files, accounting files, third party subscriptions,
agreements, and instruments described in
Exhibit "C"
and subrogation of all legal claims of Seller
therein. Sellers shall provide Buyer with all electronic and hard
copy Title Opinions, land files, agreements, geologic files, well
files, seismic files and materials, all facilities and equipment
owned by Seller and located on the
Exhibit "A"
lands.
(f)
The
files, records, Division Orders, data and information relating to
the items described in
Exhibits "A" and "A-1"
maintained by each Seller (the
"Records").
(g)
All
asset, leasehold, and real property owned by Seller in Pecos
County, Texas.
1.3
Effective
Time.
The purchase and sale of
the Assets shall be effective as of
October 12, 2018 at 10:00 a.m. local time at the
site of the Assets (the
"Effective
Time").
1.4
Purchase
Price.
Subject to the terms and
conditions of this Agreement, the
purchase price for the Assets is Five Hundred
Thousand U.S. Dollars ($500,000.00) (the
"Purchase Price").
The Purchase Price is payable in good
funds at closing in the amount of Five Hundred Thousand U.S.
Dollars ($500,000.00).
1.5
Broker
:
broker
in this transaction.
Article II
Buyer's Inspection; Disclaimers
2.1
Records.
(a)
Access to
Records.
Within five (5) days
of the Execution Date, Seller will
provide
to Buyer electronic copies of the Records, or to the extent that
electronic copies are not available and not feasible to obtain,
Seller shall make available to Buyer and its representatives, at
Seller's offices, such Records for inspection and review during
normal business hours to allow Buyer and its representatives to
perform Buyer's due diligence review.
Article III
Title And Disclaimers
3.1
SELLER MAKES NO WARRANTY OR
REPRESENTATION OF TITLE, EXPRESS, IMPLIED OR STATUTORY AS TO THE
CONDITION, QUANTITY, QUALITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR ANY PURPOSE, SAFETY, FREEDOM FROM DEFECTS OR
COMPLIANCE WITH REGULATORY AND ENVIRONMENTAL REQUIREMENTS OF ANY OF
THE LANDS, WELLS, FACILITIES, PIPELINES, FLOWLINES OREQUIPMENT.
FURTHERMORE, BUYER ACCEPTS THE WELLS, FACILITIES, PIPELINES,
FLOWLINES AND EQUIPMENT "AS IS", "WHERE IS", AND "WITH ALL FAULTS"
AND BUYER HEREBY RELEASES SELLER FROM ANY AND ALL LIABILITY FOR
LOSS ARISING FROM USE OF THE LANDS, WELLS, FACILITIES, PIPELINES,
FLOWLINES OR EQUIPMENT PERTAINING TO THE ASSETS BE ASSIGNED. SELLER
AND BUYER DO NOT IN ANY WAY REPRESENT OR WARRANT THE ACCURACY OR
COMPLETENESS OF ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN
OR ORAL) FURNISHED TO THE OTHER BY OR ON BEHALF OF SELLER OR BUYER.
THE PARTIES AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW TO
BE EFFECTIVE, THE DISCLAIMERS OF WARRANTIES CONTAINED IN THIS
SECTION ARE "CONSPICUOUS" DISCLAIMERS. BUYER ACKNOWLEDGES THAT IT
IS FAMILIAR WITH THE TITLES IN THE AREA.
3.2
SELLER
EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE CONDITION OF ANY
PERSONAL PROPERTY, FIXTURES AND ITEMS OF MOVABLE PROPERTY
COMPRISING ANY PART OF THE ASSETS INCLUDING
(A)
ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED
OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) ANY
IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF
MATERIALS, (D) ANY RIGHTS OF BUYER UNDER THE APPLICABLE STATUTES TO
CLAIM DIMINUTION OF CONSIDERATION, AND (E) ANY CLAIM BY BUYER FOR
DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, IT BEING
EXPRESSLY UNDERSTOOD BY BUYER THAT THE PERSONAL PROPERTY, FIXTURES
AND ITEMS ARE BEING ASSIGNED TO BUYER AS IS, WHERE IS, WITH ALL
FAULTS, AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND THAT
BUYER HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS BUYER DEEMS
APPROPRIATE.
Article IV
Sellers' Representations
4.1
Seller, represents and warrants to Buyer the following and not
otherwise:
(a)
Power and
Authority.
Such Seller has the
requisite power and authority to
execute
and deliver this Agreement and perform its obligations under this
Agreement and the person executing all documents for Seller is duly
authorized to execute such documents.
4.2
Seller is aware of
litigation by a mineral owner versus various lessees in Pecos
County, TX, being Cause No. P-7600-83-CV, Frederick Bartlett Wulff,
Sr. et al vs. Benedum & Trees, LLC, Amazing Energy, LLC et al.
currently pending in Pecos County, TX. Seller is not a
party.
Article V
Buyer's Representations
5.1
Buyer represents and warrants to Sellers the
following:
(a)
Existence.
Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Nevada, and is duly qualified to do business as a foreign
corporation in the state(s) where the Assets are located, except
where the failure to so qualify would not have a material adverse
effect on Buyer or its properties.
(b)
Power.
Buyer has the corporate power to enter
into and perform this Agreement and the transactions contemplated
by this Agreement. Subject to preferential purchase rights and
restrictions on assignment of the type generally found in the oil
and gas industry, and to rights to consent by, required notices to,
and filings with or other actions by governmental entities where
the same are customarily obtained subsequent to the assignment of
oil and gas interests, the execution, delivery and performance of
this Agreement by Buyer, and the transactions contemplated by this
Agreement , will not violate (a} any provision of the certificate
of incorporation or bylaws of Buyer, (b) any material agreement or
instrument to which Buyer is a party or by which Buyer or any of
the Assets arc bound, (c} any judgment , order, ruling, or decree
applicable to Buyer as a party in interest, or (d) any law, rule or
regulation applicable to Buyer relating to the Assets other than a
violation which would not have a material adverse effect on
Buyer.
(c)
Authorization and
Enforceability.
The execution,
delivery and performance of this Agreement, and the transaction
contemplated hereby, have been duly and validly authorized by all
necessary action on the part of Buyer. This Agreement constitutes
the valid and binding obligation of Buyer, enforceable in
accordance with its terms except as such enforceability may be
limited by applicable bankruptcy or other similar laws affecting
the rights and remedies of creditors generally as well as to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(d)
Liability for Broker's
Fees.
Seller shall not directly
or indirectly incur any liability or expense, as a result of
undertakings or agreements of Buyer, for brokerage fees, finder's
fees, agent's commissions or other similar forms of compensation in
connection with this Agreement or any agreement or transaction
contemplated hereby.
(e)
Distribution.
Buyer is an experienced and
knowledgeable investor in the oil, gas and mineral resources
industry that has previously expended substantial amounts in the
acquisition and development of oil and gas properties. Prior to
entering into this Agreement, Buyer has been advised by its counsel
and such other persons as it has deemed appropriate concerning this
Agreement. The Assets to be acquired by Buyer pursuant to this
Agreement are being acquired by Buyer for its own account, for
investment and not with a view to distribution or resale within the
meaning of the Securities Act of 1933, as amended, or any other
applicable securities law, rule, regulation or
order.
(f)
Claims and
Litigation.
To the actual
knowledge of Buyer, there are no
claims,
actions, suits, or proceedings pending or threatened against Buyer
which, if determined adversely to Buyer, would materially and
adversely affect Buyer's ability to perform its obligations under
this Agreement.
Article VI
Closing
6.1
Date
of Closing.
The
"Closing"
of this transaction shall, unless
otherwise agree
to in writing by the Buyer and Sellers, be held in
Seller's office in Houston, Harris County, Texas on October 12,
2018
("Closing
Date").
6.2
Execution
Date Obligation:
The Parties
shall execute this agreement and any
other
documents necessary for the Parties to be bound to the obligations
set forth herein.
6.3
Closing
Obligations.
At Closing, the
following events shall occur, each being a
condition
precedent to the others and each being deemed to have occurred
simultaneously with the others:
(a)
Seller
shall execute, acknowledge and deliver to Buyer, (i) an Assignment,
and Bill of Sale in the form attached as
Exhibit E,
and (ii) any applicable forms of any federal,
state and local governmental authorities, assigning the Assets
being sold by Seller to Buyer, if any, as of the Effective Time,
with no warranty of title.
(b)
Buyer
shall deliver the Purchase Price to the account at a bank
designated by each Seller by check in immediately available funds,
or by such other method as agreed to by the Parties.
(c)
Seller
and Buyer shall take such other actions and deliver such other
documents as are contemplated by this Agreement.
Article VII
Post-Closing Obligations
7.1
Records.
Seller agrees to make the Records
available to Buyer as soon as is
reasonably
practical, but in any event on or before the latter of 10 Business
Days after the Closing.
7.2
Further
Assurances.
From time to time
after Closing, each Seller and Buyer shall
each
execute, acknowledge and deliver to the other such further
instruments and take such other action as may be reasonably
requested in order to accomplish more effectively the purposes of
this transaction.
Article VIII
8.1
Assumption of Assets Upon Closing.
Upon Closing, Buyer shall assume
and pay,
perform,
fulfill and discharge all claims, costs, expenses, liabilities and
obligations relating to the
possession, ownership or operation of the Assets
from and after the Effective Time, including but not limited to all
plugging and abandonment obligations and surface restoration
obligations (collectively, the
"Assumed
Liabilities").
This indemnity
obligation shall survive Closing indefinitely. Additionally, Buyer
agrees to assume and pay all property, and any ad valorem taxes for
the year 2018, and no proration for such year shall be applicable.
All asset, leasehold, and real property owned by Seller in Pecos
County, Texas.
8.2
Indemnity.
BUYER EXPRESSLY AGREES TO ASSUME ANY
AND ALL
LIABILITY AND RESPONSIBILITIES
FOR ALL PLUGGING OBLIGATIONS REGARDING THE WELLS. SELLER KNOWS OF
NO EXISTING OR ASSERTED REGULATORY ACTIONS OR CLAIMS RELATING TO
ANY ENVIRONMENTAL VIOLATION OR UNCORRECTED RELEASES, THEREFORE
BUYER SHALL ASSUME ALL RESPONSIBILITY AND LIABILITIES FOR ANY
ENVIRONMENTAL CLAIMS OR REMEDIATION REQUIREMENTS ARISING FROM THE
OPERATIONS OF THE ASSIGNED ASSETS FROM AND AFTER THE CLOSING
DATE.
Buyer, therefore agrees
to indemnify and hold Seller harmless for any and all plugging
liabilities, claims, including environmental, causes of action,
suits and judgments for injury to persons, including death,
property damages and ad valorem taxes arising out of or resulting
from Buyer's possession, use and operations of the Assets from and
after the Effective Date.
Article IX
Miscellaneous
9.1
Expenses.
Except as otherwise specifically
provided, all fees, costs and expenses
incurred
by Buyer or Sellers in negotiating this Agreement or in
consummating the transactions contemplated by this Agreement shall
be paid by the Party incurring the same.
9.2
Notices.
All notices under this Agreement shall
be by either e-mail or in writing
and
addressed as set forth below:
If to Buyer:
Amazing
Energy, LLC
5700
W. Plano Parkway, Suite 3600
Plano,
TX 75093
Attn:
Willard G. McAndrew III
Telephone:
Cell: (214) 906-3073 / Office: (214) 233-1244
e-mail:
Will@amazingenergy.com
If to Wyatt:
Wyatt Petroleum, LLC
24 Greenway, Suite 600
Houston, TX 77046
Attention: M. L. Vines
Telephone: (713) 877-7106
e-mail:
mlvinesaymail.com
With
a Copy to:
Don
C. Nelson
24
Greenway Plaza, Suite 606
Houston,
TX 77046
Telephone:
(713) 877-7171
e-mail:
don.nelson@lawdcn.com
Any Party may, by e-mail or written notice so delivered to the
other Parties, change the address or individual to which delivery
shall thereafter be made.
9.3
Amendments.
This Agreement may not be amended nor
any rights hereunder
waived
except by an instrument in writing signed by all
Parties.
9.4
Governing
Law.
This Agreement and the
transactions contemplated hereby and
any
arbitration or dispute resolution conducted pursuant hereto shall
be construed in accordance with, and governed by, the laws of the
State of Texas.
9.5
Entire
Agreement.
This Agreement
represents the entire understanding and
agreement between the parties with respect to the subject matter
addressed herein and entirely and completely supersedes, voids and
replaces all agreements, negotiations, understandings and
representations (whether written or oral) in existence between the
parties as of the Effective Date and relating to the same subject
matter.
9.6
Binding
Effect.
This Agreement shall
inure to the benefit of, the Parties hereto,
and
their respective successors and assigns.
9.7
Disclaimer
of Representations and Warranties.
The Parties hereto each disclaim
all liability and responsibility for any other
representation, warranty, statements or communications (orally or
in writing) to any other Party wherever and however made,
including, but not limited to, those made during any negotiations.
Without limiting the generality of the foregoing, none of the
Parties makes any representation or warranty as to (a) the amount,
value, quality or deliverability of petroleum, natural gas or other
reserves attributable to the Assets or (b) any geological,
engineering or other interpretations of economic valuation. The
Assets are sold without any warranty, express, implied or
statutory.
All tangible personal property
included in the Assets is sold "AS IS, WHERE IS," and "WITH ALL
FAULTS" and each Seller MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS, STATUTORY OR IMPLIED, AND DISCLAIMS ANY REPRESENTATION OR
WARRANTY, WHETHER EXPRESS OR IMPLIED, AND WHETHER BY COMMON LAW,
STATUTE, OR OTHERWISE, AS TO (i) MERCHANTABILITY, (ii) FITNESS FOR
ANY PARTICULAR PURPOSE,
(iii)
CONFORMITY
TO MODELS OR SAMPLES OF MATERIALS AND
(iv)
CONDITION,
(v) THE PRESENCE, QUALITY, QUANTITY AND RECOVERABILITY OF
HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE ASSETS ASSIGNED,
(vi) THE ABILITY OF THE TRANSFERRED ASSETS TO PRODUCE HYDROCARBONS,
INCLUDING WITHOUT LIMITATION PRODUCTION
RATES, DECLINE RATES AND RECOMPLETION OPPORTUNITIES, (vii) GEOLOGIC
OR GEOPHYSICAL CHARACTERISTICS OR INTERPRETATIONS, (viii) THE
PRESENT OR FUTURE VALUE OF HE ANTICIPATED INCOME, COSTS OR PROFITS,
IF ANY TO BE DERIVED FROM THE TRANSFERRED ASSETS, (ix) THE
COMPLETENESS OR ACCURACY OF THE INFORMATION CONTAINED IN THE FILES,
DATA OR RECORDS OF SELLER. ANY DATA, INFORMATION OR OTHER RECORDS
FURNISHED BY SELLER OR ANY REPRESENTATIVE OF SELLER ARE PROVIDED TO
BUYER AS A CONVENIENCE AND BUYER'S RELIANCE ON OR USE OF THE SAME
IS AT BUYER'S SOLE RISK. THE PARTIES AGREE THAT THE PRECEDING
DISCLAIMERS OF WARRANTY ARE "CONSPICUOUS" DISCLAIMERS FOR PURPOSES
OF ANY APPLICABLE LAW, RULE OR ORDER.
9.8
Seller's
Retained Obligation:
Seller
shall cause the Wilson 68-1 well to be
plugged
and abandoned at Seller's costs as soon as practically
possible.
9.9
Any amounts and/or debts which are due and owing to Seller/Assignor
(Wyatt
Petroleum,
LLC and/or Wyatt Permian, LLC) prior to the effective date of this
Agreement, whether now known or unknown, by co-working interest
owners, joint operators, non-participating working interest owners,
or any party who owes monies or debt to Seller/Assignor withrespect
to any of the properties and/or operations of the properties
assigned under this Agreement, whether known or not known on the
Effective Date, shall remain owed to Seller and are not assigned by
this Agreement. Additionally, any rights or causes of action that
are held by Seller with respect to any of the properties and/or
operations of the properties conveyed under this Agreement, whether
now known or unknown, remain with Seller and are not intended to be
assigned by this Agreement.
9.10
THIS AGREEMENT REPRESENTS THE ENTIRE UNDERSTANDING AND AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER ADDRESSED
HEREIN AND ENTIRELY AND COMPLETELY SUPERSEDES, VOIDS AND REPLACES
ALL AGREEMENTS, NEGOTIATIONS, UNDERSTANDINGS AND REPRESENTATIONS
(WHETHER WRITTEN OR ORAL) IN EXISTENCE BETWEEN THE PARTIES AS OF
THE EFFECTIVE DATE AND RELATING TO THE SAME SUBJECT
MATTER
[SIGNATURE PAGE FOLLOWS]
ASSIGNMENT AND BILL OF SALE
STATE
OF TEXAS
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COUNTY
OF PECOS
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For and in consideration of the sum of One Hundred
Dollars ($100.00) and other good and valuable consideration, the
receipt, adequacy, and sufficiency of which are hereby
acknowledged, Wyatt Petroleum, LLC (formerly Nautilus Energy, LLC)
and Wyatt Permian, LLC (formally Nemo Fund I, LLC) (collectively
herein "Assignor") whose address is 24 Greenway Plaza, Suite 600,
Houston, Texas 77046, does hereby
SELL, TRANSFER AND
ASSIGN
unto AMAZING ENERGY,
LLC, whose address is 5700 W. Plano Parkway, Suite 3600, Plano, TX
75093 ("Assignee"), effective as of October 12, 2018, at 7:01 a.m.,
Central Time (the "effective Time"), subject to the terms and
conditions herein and as set forth in the Purchase and Sale
Agreement between the parties, all of Assignors right, title and
interest in and to all of the following assets, properties,
leasehold, wells, facilities, equipment, agreements being referred
to herein and located in Pecos County, Texas, (collectively the
"Assets"):
(a)
All
of Assignor's right, title and interest in the oil, gas and/or
other minerals leases and leasehold estates acquired by Seller in
any Assignment of Oil and Gas Leases, Assignment and Bill of Sale,
Exploration Agreements, Stipulation of Interest and
Cross-Conveyance agreements or other documents assigning leasehold
interest, wells and/or well bores, or oil and gas interest, said
assignments being recorded in Pecos County, TX and attached thereto
a list of leases and lands assigned in such assignment or other
document, such assignments to Assignor are described in
Exhibit "A"
attached hereto for all purposes,
located in the Indian Mesa Field in Pecos County, Texas, including
all extensions, renewals, top leases, ratifications, or amendments
thereof and all working interest leasehold interest operating
rights, carried interest or other rights granted to Assignor
(collectively the "Lands") together with all the property and
rights incident thereto, including all rights in any pooled,
unitized or connunitized acreage by virtue of the Lands be a part
thereof, all production from the Lands, from and after the
Effective Time, and any pool or unit to the extent allocated to any
such Lands and all interest in any wells located on the Lands or in
any pool or unit and attributable to the Lands, but subject to all
assignments of any overriding royalty interest or other interest of
record in Pecos County, Texas, if any; and
(b)
All
of Assignor's right title and interest in producing, nonproducing,
shut-in and abandoned oil and gas wells, wellbores, the casing and
tubing therein and all downhole and wellhead equipment, and all
leasehold equipment, structures and other equipment, facilities and
personal property situated on the Leases and all of the interest
owned by Assignor in and to all personal property, improvements,
lease and well equipment, appurtenances, pipelines (owned by
Assignor as of the Effective Time) pumps, facilities, separators,
tanks and other fixtures ( the "Facilities") located on
attributable to or used in connection with the Assets located on
the Lands (hereinafter referred to as the "Wells") the wells being
shown on
Exhibit "A-1"
attached hereto. Attached hereto for
all purposes is group of pictures and a spread sheet that evidence
and reflect
the facilities and equipment at each well site and
tank battery site and being a part of the Assets, collectively
marked as
Exhibit "M" and "B2";
and
(c)
To
the extent assignable, all contracts and contractual rights and
interest covering or affecting any or all of the interest described
or referred to above, including, without limitation, all farm-out
and farm-in agreements, area of mutual interest agreements,
operating agreements, production sales and purchase contracts,
saltwater disposalagreements, surface use agreements or leases,
division and transfer orders, licenses and other contracts or
agreements covering or affecting any or all of the interest
described or referred to above (hereinafter referred to as the
"Contracts"), as shown in
Exhibit "C"
attached hereto; and
(d)
To
the extent assignable, all easements, rights-of-way, surface use
agreements or leases, fee estates, licenses, authorizations,
permits, waivers and similar rights and interest applicable to, or
used or useful in connection with, any or all of the interest
described in Subparagraphs (a) and (b) above (collectively the
"Other Real Property"); and
(e)
All
oil, condensate, natural gas, natural gas liquids, if any, or other
gases and other minerals produced after the Effective Time, if any,
attributable to all or any part of the Assets; and
(f)
All well, legal and title files concerning the Leases, Wells,
Equipment, Contracts or other Real Property owned by or subject to
the possession or control of Assignor (collectively the "Files");
and
(g)
The
right to operate the Leases (insofar as the Leases cover the Lands)
and Wells.
(h)
Any
person or entity obtaining an Assignment of rights in the Leases:
(1) Is deemed to have accepted liability for the non-performance of
any express or implied Lease obligations accruing prior to the date
of Assignment; and (2) Is liable for the proper performance of
express and implied lease obligations from and after the date of
Assignment. Liability for the non-performance of lease obligations
will be in addition to the liability of LESSEE, any assignees
obtaining an interest through LESSEE, or any assignees obtaining an
interest through LESSEE'S assignees. The liability of LESSEE and
all assignees transferred an interest in the leases is joint and
several.
(i)
Lessee
assumes, and agrees to comply with, from and after the date of this
assignment, the express and implied covenants created by the oil
and gas leases. From and after the date of this assignment Lessee
agrees to indemnify Lessor against any liability, claim, demand,
damage, or cost, including litigation costs and attorney fees,
associated with the oil and gas leases and the interest assigned to
Lessee.
TO
HAVE AND TO HOLD the Assets unto Assignee, its successors and
assigns, forever, subject, however, to all the terms and conditions
of this Assignment and Bill of Sale.
THIS ASSIGNMENT IS MADE WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY
WARRANTY OR REPRESENTATION AS TO THE CONDITION, QUANTITY, QUALITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY PURPOSE,
SAFETY, FREEDOM FROM DEFECTS OR COMPLIANCE WITH REGULATORY AND
ENVIRONMENTAL REQUIREMENTS OR ANY OF THE LANDS, WELLS, FACILITIES,
PIPELINES, FLOWLINES OR EQUIPMENT ASSIGNED HEREBY. ASSIGNOR DOES
NOT IN ANY WAY REPRESENT OR WARRANT THE ACCURACY OR COMPLETENESS OF
ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR ORAL)
FURNISHED TO ASSIGNEE BY OR ON BEHALF OF ASSIGNOR ASSIGNEE IS
ACQUIRING THE ASSETS IN AN "AS IS, WHERE IS" CONDITION, AND (ii)
SHALL ASSUME ALL RISKS AND LIABILITIES THAT THE ASSETS MAY CONTAIN
HAZARDOUS MATERIALS OR OTHER WASTE, TOXIC, HAZARDOUS, EXTREMELY
HAZARDOUS, OR OTHER MATERIALS OR SUBSTANCES, OR OTHER ADVERSE
PHYSICAL CONDITIONS, INCLUDING THE PRESENCE OF UNKNOWN ABANDONED
OIL AND GAS WELLS, WATER WELLS, SUMPS, PITS, PIPELINES, OR OTHER
WASTE OR SPILL SITES. ASSIGNOR AND ASSIGNEE AGREE THAT TO THE
EXTENT REQUIRED BY APPLICABLE LAW TO BE OPERATIVE, THE DISCLAIMERS
OF CERTAIN WARRANTIES CONTAINED IN THIS PARAGRAPH ARE
"CONSPICUOUS."
Any amounts and/or debts which are due and owing to Seller/Assignor
(Wyatt Petroleum, LLC and/or Wyatt Permian, LLC) prior to the
effective date of this Agreement, whether now known or unknown, by
co-working interest owners, joint operators, non-participating
working interest owners, or any party who owes monies or debt to
Seller/Assignor with respect to any of the properties and/or
operations of the properties assigned under this Agreement, whether
known or not known on the Effective Date, shall remain owed to
Sellerand are not assigned by this Agreement. Additionally, any
rights or causes of action that are held by Seller with respect to
any of the properties and/or operations of the properties conveyed
under this Agreement, whether now known or unknown, remain with
Seller and are not intended to be assigned by this
Agreement.
To the extent permitted by law, Assignee shall be
subrogated to Assignor's rights in and to representations,
warranties, and covenants given with respect to the Contracts,
Agreements, Assets, Leases, and Wells. Assignor hereby grants and
transfers to Assignee, its successors and assigns, to the extent so
transferable and permitted by law, a proportionate part of the
benefit of and the right to enforce the covenants, representations
and warranties, if any, which Assignor is entitled to enforce with
respect to the Assets. Assignee hereby agrees to accept the Assets,
equipment, Wells, facilities, contracts and other Real Property
assigned herein, and that Assignee accepts the same
"AS IS, WHERE
IS"
and
"WITH ALL FAULTS".
Effective as of the Effective Date and
to the extent of the Assets, Assignee agrees to assume all
responsibility for and obligations with respect to the Wells, the
casing and all other equipment, and all other personal property and
fixtures used on or in connection therewith on and after the
Effective Time.
ASSIGNEE EXPRESSLY ASSUMES ANY
AND ALL LIABILITY AND RESPONSIBILITIES FOR ALL PLUGGING OBLIGATIONS
REGARDING THE WELLS. ASSIGNOR KNOWS OF NO EXISTING OR ASSERTED
REGULATORY ACTIONS OR CLAIMS RELATING TO ANY ENVIRONMENTAL
VIOLATION OR UNCORRECTED RELEASES, THEREFORE ASSIGNEE ASSUMES
ALL
RESPONSIBILITY AND LIABILITIES
FOR ANY ENVIRONMENTAL CLAIMS OR REMEDIATION REQUIREMENTS ARISING
FROM THE OPERATIONS OF THE ASSETS FROM AND AFTER THE CLOSING
DATE.
SUBJECT TO THE OTHER PROVISIONS HEREIN, ASSIGNEE SHALL PROTECT,
DEFEND, INDEMNIFY AND SAVE ASSIGNOR AND ASSIGNOR'S EMPLOYEES,
AGENTS, REPRESENTATIVES, AND ANY OTHER PARTY CONTRACTING WITH
ASSIGNORS, AND THEIR RESPECTIVE EMPLOYEES OR SUBCONTRACTORS FROM
AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, SUITS,
LIABILITIES, DAMAGES, AWARDS AND JUDGMENTS OF WHATSOEVER NATURE
(AND ALL REASONABLE ATTORNEY'S FEES AND COSTS OF LITIGATION OR
SETTLEMENT INCURRED IN CONNECTION WITH THE SAME) ARISING IN FAVOR
OF ANY PARTY (INCLUDING ASSIGNEE, ITS EMPLOYEES, AND ANY OTHER
PARTY WHOMSOEVER) FOR OR ON ACCOUNT OF PERSONAL INJURY, DEATH OR
LOSS OF OR DAMAGE TO PROPERTY OR OTHER INTERESTS OF ANY KIND OR
CHARACTER, ARISING IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY,
FROM ASSIGNEE'S USE OR OPERATIONS OF THE ASSETS, WELLS AND
FACILITIES AND ACTIVITIES HEREUNDER; PROVIDED, HOWEVER, THE
FOREGOING INDEMNITY SHALL NOT BE CONSTRUED TO INDEMNIFY ASSIGNOR TO
THE EXTENT THAT ANY SUCH PERSONAL INJURY, DEATH, OR LOSS OF OR
DAMAGE TO PROPERTY, OR OTHER INTERESTS OF ANY KIND OR CHARACTER,
SERVING AS THE BASIS OF SUCH CLAIMS, DEMANDS, CAUSES OF ACTION OR
JUDGMENTS OF WHATSOEVER NATURE HAVE BEEN CAUSED BY, OR RESULTED
FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ASSIGNOR OR
ASSIGNOR'S EMPLOYEES, AGENTS, REPRESENTATIVES, AND INVITEES FROM
WHICH ASSIGNOR SHALL PROTECT, DEFEND, INDEMNIFY AND SAVE HARMLESS
ASSIGNEE AND ASSIGNEES OFFICERS, DIRECTORS, AND EMPLOYEES
(INCLUDING ALL REASONABLE ATTORNEY'S FEES AND COSTS OF LITIGATION
OR SETTLEMENT INCURRED IN CONNECTION WITH SAME). ASSIGNEE SHALL
ALSO INDEMNIFY AND SAVE ASSIGNOR HARMLESS FROM AND AGAINST ANY AND
ALL LIENS, CLAIMS AND ENCUMBRANCES AGAINST ASSIGNOR'S PROPERTY (AND
FROM AND AGAINST THE PAYMENT OR SATISFACTION OF SAME) ARISING
DIRECTLY OR INDIRECTLY FROM, OR INCIDENT, TO THE AGREEMENT OR
OPERATIONS FROM AND AFTER THE EFFECTIVE TIME.
ASSIGNOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED,
OR STATUTORY OR IN ANY MANNER AS TO THE TITLE TO THE LANDS, LEASES,
ASSETS, WELLS, EQUIPMENT OR FACILITIES AND EXPRESSLY DISCLAIMS THE
SAME.
Assignee
shall bear and pay any real property transfer taxes, if any and any
recording fees associated with the transfer of the Assets to
Assignee.
This
Assignment and Bill of Sale shall be binding upon and inure to the
benefit of the heirs, successors, and assigns of the respective
parties hereto.
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