UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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CURRENT REPORT
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Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): February 1, 2018
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BARNWELL INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
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Delaware
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1-5103
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72-0496921
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(State or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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1100 Alakea Street, Suite 2900
Honolulu, Hawaii 96813
(Address of principal executive offices)
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96813
(Zip Code)
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Registrant's telephone number, including area code:
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(808) 531-8400
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Not Applicable
(Former name or former address, if
changed since last report.)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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[ ] Soliciting material pursuant to Rule 14a- 12 under the Exchange Act (17 CFR 240.14a-12)
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[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company [ ]
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
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Exhibit No.
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Description
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1.1
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Purchase and Sale Agreement, executed on February 1, 2018, between Barnwell of Canada, Limited and Harvest Operations Corp.
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BARNWELL INDUSTRIES, INC.
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By:
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/s/ Russell M. Gifford
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Name:
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Russell M. Gifford
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Title:
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Executive Vice President and Chief Financial Officer
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Exhibit No.
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Description
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1.1 |
Definitions
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(a) |
"Abandonment and Reclamation Obligations" means all obligations to:
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(i) |
abandon the Wells and restore and reclaim the surface sites thereof, to decommission and remove the facilities and equipment comprised in the Tangibles, and restore and reclaim the surface sites thereof; and
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(ii) |
reclaim and restore the lands to which the surface rights relate (including the removal of all tailings ponds and the remediation of all associated and affected sites);
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(b) |
"AC2 Form" means the Petroleum Registry of Alberta Query Capital and Operating Costs – AC2(V4) form to be completed for Closing regarding gas cost allowances calculations;
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(c) |
"AER" means the Alberta Energy Regulator;
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(d) |
"AFE" means authority for expenditure, unit budget, mail ballot, cash call, or any other approval given by the holder of a working interest in the Lands or Tangibles to conduct an operation, create or incur a financial obligation or accept a risk;
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(e) |
"Affiliate" means any company, person, partnership or other legal entity which controls or is controlled by a Party or which controls or is controlled by a company, person, partnership, or other legal entity which controls such Party; "control" meaning the power to direct or cause the direction of the management and policies of the Party or the other company, person, partnership, or legal entity, as the case may be, whether directly or indirectly, through one or more intermediaries or otherwise, and whether by virtue of being the Party's trustee, owning shares or other equity interests, or holding voting rights, contractual rights, trust instruments, partnership interests or any other such interests. For certainty, a partnership which is a Party and which is comprised of corporations which are Affiliates shall be deemed to be an Affiliate of each such corporation and its other Affiliates;
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(f) |
"Agreement" means this document, together with the Schedules attached hereto and made a part hereof;
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(g) |
"Arbitration" means arbitration to be undertaken in accordance with Article 9;
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(h) |
"Assets" means all right, title, and estate in and to the Petroleum and Natural Gas Rights, the Tangibles and the Miscellaneous Interests, either owned or held by Barnwell of Canada, Limited for itself in its personal capacity or which Barnwell of Canada, Limited holds as trustee and is empowered and authorized to sell as attorney and agent of the Vendor Partners, whether such rights, title, estates and interests are beneficial or legal or both, contingent or fixed, vested or unvested, and such term means and includes all of the interests described herein as being transferred and conveyed by Vendor, and set forth as "Vendor Interests" in Schedules "A", "C", "D", "E" and "F", but does not mean or include the Excluded Assets described in Schedule "G";
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(i) |
"Business Day" means any day upon which both Parties are open for normal business in Calgary, Alberta;
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(j) |
"Closing" means the transfer and conveyance of the Assets from Vendor to Purchaser and the completion of other matters incidental thereto;
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(k) |
"Closing Date" means the later of:
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(i) |
February1, 2018; and
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(ii) |
five (5) Business Days after the exercise, waiver or expiry by the effluxion of time of any and all Rights of First Refusal; or
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(l) |
"Closing Time" means 2:00 p.m. in Calgary, Alberta, on the Closing Date:
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(m) |
"Conveyance Documents" means all conveyances, assignments, registerable transfers, novations, bills of sale, licence transfers, AC2 forms, RMF2 forms, and other documents or instruments, other than the General Conveyance, which are reasonably required or desirable to convey, assign and transfer to Purchaser Vendor's rights, interests and obligations in and to the Assets, and to novate Purchaser in Vendor's place and stead with respect to all agreements affecting or relating to the Assets and all of Vendor's obligations relating thereto;
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(n) |
"Dollar" and "$" mean a dollar of lawful money of Canada;
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(o) |
"Effective Date" means 8:00 a.m. Calgary, Alberta time on October 1, 2017;
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(p) |
"Environment" means the components of the earth and the atmosphere and includes all layers of the atmosphere, ambient air, the soil, the surface and subsurface strata of land, groundwater and surface water (including lakes, rivers, streams, oceans and aquifers), all organic and inorganic matter and living organisms, and the interacting natural systems which include such components;
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(q) |
"Environmental Defect" means any Environmental Liabilities that would not be acceptable to a prudent purchaser of the Assets;
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(r) |
"Environmental Liabilities" means any and all environmental damage, contamination, or other adverse environmental conditions pertaining to or caused by any of the Assets or operations thereon or related thereto or existing within, upon or under the Lands, any lands upon which the Tangibles are located or any lands which are used to gain access to any of the foregoing, however and by whomsoever caused, and whether caused by a breach of the applicable Regulations or otherwise, which occur or arise in whole or in part prior to, at or subsequent to Closing, and regardless of whether or not a reclamation certificate has been issued. Without limiting the generality of the foregoing, such environmental damage or contamination or other environmental conditions shall to the extent applicable to the Assets include those arising from or relating to:
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(i) |
surface, underground, air, ground water, surface water or marine environment contamination;
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(ii) |
Abandonment and Reclamation Obligations;
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(iii) |
the breach of the applicable Regulations related to the Environment in effect at any time;
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(iv) |
the removal of or failure to remove foundations, structures or equipment;
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(v) |
the release, spill, escape or emission of toxic, hazardous or oilfield waste substances; and
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(vi) |
damages and losses suffered by Third Parties as a result of any of the occurrences in Paragraphs (i) through (v) of this Subclause 1.1(r);
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(s) |
"Excluded Assets" means the assets set forth on Schedule "G" hereto under the heading "Excluded Assets";
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(t) |
"Facilities" means the facilities described in Schedule "E", excluding any facilities comprised in the Excluded Assets;
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(u) |
"GST" means the goods and services tax eligible under and administered pursuant to the Excise Tax Act (Canada);
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(v) |
"Lands" means the lands described in Schedule "A" and includes the Petroleum Substances within, upon or under such lands insofar as the Petroleum Substances are granted by the Leases;
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(w) |
"Leases" means collectively the leases, reservations, permits, licenses or other documents of title described in Schedule "A" which grant rights to explore for, drill for, win, take or remove the Petroleum Substances, or any replacement or renewals thereof, leases derived therefrom, or subsequent leases or other documents of title;
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(x) |
"Licence Transfers" means, in relation to the Assets, the transfers of any permits, approvals, licenses and authorizations granted by any applicable governmental body;
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(y) |
"Losses" means all actions, causes of action, losses, costs, claims, damages, penalties, assessments, charges, expenses and other liabilities whatsoever suffered, sustained, paid or incurred and includes reasonable legal fees on a solicitor-and-client basis and other professional fees and disbursements on a full-indemnity basis; but notwithstanding the foregoing shall not include any liability for indirect or consequential damages including business loss, loss of profit, economic loss, punitive damages or income tax liabilities;
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(z) |
"Miscellaneous Interests" means all property, assets and rights (other than the Petroleum and Natural Gas Rights and the Tangibles) pertaining to, but only to the extent to which they pertain to, the Petroleum and Natural Gas Rights, the Tangibles or any lands with which the Lands have been pooled or unitized, including Vendor's entire undivided interest in:
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(i) |
all contracts, agreements and documents relating directly to the Petroleum and Natural Gas Rights and the Tangibles and any rights in relation thereto;
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(ii) |
all subsisting rights to enter upon, use and occupy the surface of any of the Lands or any lands upon which the Tangibles are located or lands which are used to gain access to any of the foregoing;
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(iii) |
all subsisting rights to carry out operations relating to the Lands or the Tangibles including all easements and well, pipeline, facility and other permits, licences and authorizations;
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(iv) |
all geological, engineering and other reports prepared for the joint account, i.e., prepared for all working interest owners, but not any other reports or interpretations or any other geophysical or geological data;
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(v) |
the Wells, including the wellbores of, and casings in, such Wells, but specifically excluding any wells comprised in the Excluded Assets;
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(vi) |
the Production Sales Contracts; and
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(vii) |
the Unit Interest;
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(aa) |
"Party" means any individual, partnership or corporation which is bound by this Agreement as Purchaser or Vendor;
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(bb) |
"Permitted Encumbrances" means:
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(i) |
easements, rights-of-way, servitudes and other similar rights in land including rights-of-way and servitudes for highways and other roads, railways, sewers, drains, gas and oil pipelines, gas and water mains, electric light, power, telephone, telegraph or cable television conduits, poles, towers, wires and cables;
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(ii) |
the right reserved to or vested in any government or other public authority by the terms of any statutory provision, to terminate any Leases or to require annual or other periodic payments as a condition of the continuance thereof;
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(iii) |
liens imposed by statute securing the payment of taxes or assessments which are not due or delinquent;
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(iv) |
taxes on Petroleum Substances (excluding income taxes and GST) or the revenue therefrom and requirements imposed by statutes or governmental boards, tribunals or authorities concerning rates of production from operations on any of the Lands or otherwise affecting recoverability of Petroleum Substances from the Lands and which are generally applicable to the oil and gas industry in the jurisdiction in which the Assets are located;
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(v) |
the terms and conditions of all Leases or any operating agreements relating to the Assets (including Production Sales Contracts and pooling and unitization agreements), provided that any burdens, encumbrances, adverse claims and reductions, conversions and alterations of interests are described in Schedule "A";
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(vi) |
rights reserved to or vested in any municipality or governmental, statutory or public authority to control or regulate any of the Assets in any manner, and all applicable laws, rules and orders of any governmental authority;
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(vii) |
undetermined or inchoate liens (including processors', operators' and similar liens) incurred or created as security in favour of the person conducting the operation of any of the Assets, and arising in the ordinary course of business, for Vendor's proportionate share of the costs and expenses of such operations in respect of such costs which are not due or delinquent at the relevant time;
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(viii) |
mechanics', builders' or materialman's liens in respect of services rendered or goods supplied, but only insofar as such liens relate to goods or services for which payment is not due or the validity of which is being diligently contested by or on behalf of Vendor;
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(ix) |
the reservations, limitations, provisos and conditions in any original grants from the Crown of any of the Lands or interests therein, and statutory exceptions to title;
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(x) |
penalties which are described in Schedule "A" and which have arisen under operating procedures or similar agreements as a consequence of Vendor's elections at the relevant time to not participate in operations on the Lands to which the penalty applies;
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(xi) |
liens or securities incurred, created or granted in the ordinary course of business to a public utility, municipality or governmental authority in connection with operations pertaining to the Assets; and
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(xii) |
all royalty burdens (including lessor's royalties), liens, adverse claims and encumbrances described in Schedule "A";
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(cc) |
"Person" means any individual, personal representative, corporation, partnership or other legal entity capable of entering in to binding legal obligations;
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(dd) |
"Petroleum and Natural Gas Rights" means the undivided interests described in Schedule "A" including working interests, royalty interests, participation interests or any other interests in respect of the Leases and the Lands or lands with which the Lands are pooled or unitized, whether legal, beneficial or both;
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(ee) |
"Petroleum Substances" means petroleum, natural gas and all related hydrocarbons including all liquid hydrocarbons, and all other substances whether liquids, gases or solids and whether hydrocarbon or not (excepting coal but including sulphur), produced in association with such petroleum, natural gas or related hydrocarbons, the rights to which are granted by the Leases;
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(ff) |
"Pipelines" means all pipelines set forth on Schedule "F", excluding any pipelines forming part of the Excluded Assets;
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(gg) |
"Prime Rate" means a rate of interest per annum equal to the annual rate of interest which is announced from time to time by the Royal Bank of Canada in Calgary, Alberta, as its reference rate used for determining interest rates on Canadian dollar demand loans to its most credit-worthy customers;
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(hh) |
"Production Sales Contracts" means those contracts for the sale of Petroleum Substances produced from the Lands, or lands with which the Lands have been pooled or unitized, as described in Schedule "I";
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(ii) |
"Purchase Price" means the amount payable by Purchaser to Vendor pursuant to Subclause 2.2(a);
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(jj) |
"Regulations" means all statutes, laws, rules, orders, regulations, ordinances and other like instruments made from time to time by governments, governmental boards or agencies having jurisdiction over the Assets, the Parties or this Transaction;
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(kk) |
"Representatives" means, in respect of a Party:
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(i) |
such Party's Affiliates; and
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(ii) |
the respective directors, officers, agents, employees, and consultants or advisors of such Party and its Affiliates;
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(ll) |
"Right of First Refusal" means a right of first refusal, pre-emptive right of purchase or similar right whereby any Person has the right to acquire or purchase all or a portion of the Assets as a consequence of this Agreement or the Transaction herein contemplated;
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(mm) |
"RMF2" means the Alberta Energy Reassignment of Volume Setup/Change Form with all required attachments, to be submitted to Alberta Energy;
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(nn) |
"Security Interests" means any assignment, security, mortgage, charge, pledge, negative pledge, lien or other security interest whatever or however created or arising, whether absolute or contingent, fixed or floating, perfected or not, which encumbers all or any part or portion of Vendor's title in and to the Assets or any proceeds to be received hereunder, or that of its Affiliates or predecessors in title;
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(oo) |
"Take or Pay Obligations" means Vendor's (i) obligations to sell or deliver Petroleum Substances or any of them, the rights to which are granted, reserved or otherwise conferred pursuant to the Leases or other contracts or sale agreements applicable to the Assets , without being entitled in due course to receive and retain full payment for such Petroleum Substances ; or (ii) obligations to use transportation, pipeline or processing capacity with minimum volume commitments where any shortfalls in deliveries or use is satisfied through payment obligations.
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(pp) |
"Tangibles" means:
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(i) |
all tangible depreciable property and assets located in, on or about the Lands, or lands with which the Lands have been pooled or unitized, or which are appurtenant thereto and which are used in connection with production, gathering, processing, injection, removal, transmission or treatment of Petroleum Substances, or operations thereon or are relative thereto or are appurtenant to or are used in connection with the Wells, the Facilities, the Pipelines and the Unit, but excluding equipment beyond the point of entry into a gathering system, plant or other facility, and excluding all tangible depreciable property and assets comprising the Excluded Assets;
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the Facilities; and
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the Pipelines;
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(qq) |
"Title Defect" means an actual or potential defect, deficiency, discrepancy or adverse claim in or affecting Vendor's title or its interests in and to any of the Assets, which is made apparent from Purchaser's inability, following a reasonable title review process, to confirm Vendor's title to the Assets or to confirm the extent to which Vendor's interest in the Assets may be subject to encumbrances, as Vendor's title and interests are disclosed herein or described in Schedule "A"; and which is or would be sufficiently material and adverse to the enforcement or defence of title and interests, or the confirmation of encumbrances, that it would not be acceptable to a knowledgeable and prudent purchaser buying similar oil and gas properties, acting reasonably, and includes Vendor not being the beneficial owner of the interest attributed to it in Schedule "A" or holding a lesser beneficial interest than the interest attributed to it, Vendor's interest as described in Schedule "A" being subject to a royalty, net carried interest or other encumbrance not being disclosed or being misdescribed in Schedule "A" (other than a Permitted Encumbrance) or Vendor's interest as described in Schedule "A" being subject to a production penalty or conversion that either has not been disclosed or has been misdescribed therein;
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(rr) |
"Transaction" means Vendor's sale of the Assets to Purchaser, Purchaser's purchase of the Assets from Vendor, and all other transactions and activities contemplated by this Agreement with respect thereto;
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(ss) |
"Unit" means the scheme or schemes of unitization for the production of Petroleum Substances to which the Petroleum and Natural Gas Rights are subject, set forth in Schedule "C";
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(tt) |
"Unit Agreement" means the agreement or agreements pursuant to which the Unit was formed, as amended;
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(uu) |
"Unit Facilities" means the facilities owned or operated by the Unit and defined as "Unit Facilities" pursuant to the terms of the Unit Operating Agreement;
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(vv) |
"Unit Interest" means Vendor's entire interest in and to the Unit, including Vendor's interests attributable to the Petroleum and Natural Gas Rights therein;
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(ww) |
"Unit Operating Agreement" means the Unit Operating Agreement referred to in the Unit Agreement, as amended;
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(xx) |
"Unit Wells" mean the producing, shut‑in, suspended, abandoned, water-source or injection wells comprised in the Unit;
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(yy) |
"Vendor" means both Barnwell of Canada, Limited in its personal capacity as vendor of those Assets owned and held by it for and by itself, and Barnwell of Canada, Limited in its capacity as agent and attorney authorized and empowered to convey and transfer to Purchaser those Assets it holds in trust on behalf of the Vendor Partners;
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(zz) |
"Vendor Partners" means those Persons set out in Schedule "L" that have or have previously held a beneficial interest in the Assets, which interests are either: (i) being transferred and conveyed to Barnwell of Canada, Limited pursuant to quit claim agreements, or (ii) being transferred and conveyed by Barnwell of Canada, Limited, in its capacity as agent and attorney for such Persons; and
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(aaa) |
"Wells" mean the producing, shut‑in, suspended, water-source or injection wells described in Schedule "D", and shall include all Unit Wells.
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1.2 |
Schedules
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(a) |
Schedule "A": Petroleum and Natural Gas Rights (Leases, Lands, Vendor's Interest, Encumbrances);
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(b) |
Schedule "B": Rights of First Refusal;
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(c) |
Schedule "C": Unit;
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(d) |
Schedule "D": Wells;
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(e) |
Schedule "E": Facilities;
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(f) |
Schedule "F": Pipelines;
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(g) |
Schedule "G": Excluded Assets
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(h) |
Schedule "H": AFEs;
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(i) |
Schedule "I": Production Sales Contracts;
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(j) |
Schedule "J": the form of the General Conveyance;
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(k) |
Schedule "K": the form of the certificate to be provided pursuant to Article 10; and
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(l) |
Schedule "L"; Vendor Partners
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1.3 |
References
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1.4 |
Headings
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1.5 |
Included Words
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1.6 |
Knowledge and Awareness
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1.7 |
Interpretation if Closing does not Occur
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1.8 |
Invalidity of Provisions
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1.9 |
Conflicts
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1.10 |
Regulations
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1.11 |
Negotiated Transaction
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2.1 |
Purchase and Sale Agreement
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2.2 |
Purchase Price
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(a) |
The Purchase Price for the Assets is six hundred and ninety-three thousand, nine hundred and eighty-four Dollars and forty-one cents ($693,984.41), subject to the apportionments and adjustments provided for in Article 4 and such other reductions as may be made pursuant to Articles 7 and 8.
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(b) |
At Closing, in addition to the Purchase Price referred to in Subclause 2.2(a) above, Purchaser shall also remit to Vendor the five percent (5%) GST applicable to that portion of the Purchase Price allocated to the Miscellaneous Interests and Tangibles, being ($6,939.84). Barnwell shall remit to the appropriate governmental agency on a timely basis all applicable GST. The GST registration number of Barnwell is 100401702 RT1001.
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2.3 |
Allocation of Purchase Price
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(a) |
Vendor and Purchaser hereby allocate the Purchase Price among the Assets as follows:
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(i)
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to Petroleum and Natural Gas Rights
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$
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555,187.52
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(ii)
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to Tangibles
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$
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138,786.89
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(iii)
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to Miscellaneous Interests
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$
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10.00
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Total
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$
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693,984.41
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2.4 |
Payment of Purchase Price
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(a) |
Subject to the withholding of the Section 116 Withholding Amount pursuant to Clause 2.5 which Purchaser shall pay to Canada Revenue Agency pursuant to Subclause 2.5(a)(ii), at Closing Purchaser shall pay to Vendor, by single bank draft or certified cheque, the Purchase Price owed to Vendor, as adjusted pursuant to this Agreement, and any GST thereon.
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(b) |
Should any portion of the funds paid by Purchaser to Vendor under Subclause 2.4(a), be payable by Vendor to any of the Vendor Partners or any Person under any trust, agency or power of attorney arrangement with such Person, upon receipt of funds from Purchaser pursuant to Subclause 2.4(a), Vendor shall promptly pay such Person its correct proportionate sum, subject to any withholding of the Section 116 Withholding Amount pursuant to Clause 2.5. This obligation shall be the sole responsibility of Vendor and shall survive Closing, and Vendor shall be liable for, and shall save, indemnify and hold harmless Purchaser from any Losses of any kind resulting from Vendor's failure to fully perform such obligation.
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2.5 |
Compliance Certificates and Withholding Tax
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(a) |
Withholding Tax
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(i) |
Each Party hereby authorizes the other Party to take any actions necessary to ensure full compliance with section 116 and all other provisions of the Income Tax Act (Canada) to the extent such compliance is made necessary by the transaction contemplated herein, and shall provide to the other Party all reasonable assistance in respect thereof. Specifically, Purchaser shall authorize and provide all necessary assistance to Vendor to enable Vendor to obtain, any and all correct and accurate certificates of compliance which may be required pursuant to subsection 116(4) of the Income Tax Act (Canada).
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(ii) |
Vendor and Purchaser acknowledge that pursuant to section 116 of the Income Tax Act (Canada) Purchaser is required to, and is authorized by Vendor to, withhold at Closing one half (1/2) of the adjusted Purchase Price (the "Withholding Amount"). As soon as reasonably possible after Closing, Purchaser shall remit the Withholding Amount to the Canada Revenue Agency in accordance with section 116 of the Income Tax Act (Canada). Purchaser shall direct the payment to the Vendor's assigned tax account number 100401702RC0001 and shall provide Vendor with a copy of the payment made to the Canada Revenue Agency.
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(iii) |
Vendor acknowledges that it may be required to provide notice to the Canada Revenue Agency in respect of the sale of the Assets within ten (10) days of the date of such sale to avoid the imposition of a monetary penalty and, in addition, may be required to file a Canadian income tax return for the taxation year that includes the date of the sale of the Assets. Vendor shall fully comply on a timely basis with any such Canada Revenue Agency obligations, and shall be liable for and shall save, indemnify and hold Purchaser harmless from any loss, harm, prejudice or injury of any kind to Purchaser resulting from its failure to fully comply on a timely basis with such obligations.
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(iv) |
The obligations of the Parties pursuant to this subsection 2.5 shall survive Closing.
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3.1 |
Place of Closing
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3.2 |
Effective Date of Transfer
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3.3 |
Closing and Post-Closing Deliveries
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(a) |
At Closing, Barnwell shall execute, where applicable, and deliver to Purchaser:
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(i) |
a General Conveyance in the form attached as Schedule "J";
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(ii) |
all Conveyance Documents, including all RMF2s and AC2s, provided that such documents shall not require Vendor to assume or incur any obligation or to provide any representation or warranty beyond that contained in this Agreement;
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(iii) |
copies of all consents to disposition and applicable waivers of Rights of First Refusal obtained by Vendor with respect to this Transaction, other than customary post-closing consents;
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(iv) |
the certificate required by Subclauses 10.2(a) and (d) substantially in the form attached as Schedule "L";
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(v) |
"no interest" letters, and discharges of any Security Interests from the holder thereof;
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(vi) |
receipt for payment of the amounts hereunder payable to Vendor by Purchaser at Closing;
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(vii) |
such other documents as may be specifically required hereunder or as Purchaser may reasonably request by reasonable notice to Vendor, including reasonable evidence of Vendor's capacity and authority to convey and transfer all of the Assets to the Purchaser.
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(b) |
At Closing, Purchaser shall execute, where applicable, and deliver to Vendor:
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(i) |
the Purchase Price in accordance with Clause 2.2, subject to any adjustments provided for in this Agreement, the Section 116 Withholding Amount provided for in Clause 2.6, applicable GST;
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(ii) |
a General Conveyance in the form attached as Schedule "J";
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(iii) |
the certificate required by Subclause 10.3(d) substantially in the form attached as Schedule "K"; and
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(iv) |
such other documents as may be specifically required hereunder.
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(c) |
Five (5) Business Days before the Closing Date Vendor shall prepare and deliver drafts of the Conveyance Documents to Purchaser for Purchaser's review and approval.
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(d) |
Within five (5) Business Days of the Closing Date, originals, or where originals are not available, copies of Vendor's records, files, reports and data pertaining to the Assets, insofar as such delivery is permitted and required hereunder, unless and to the extent to which Purchaser agrees to allow Vendor to deliver such records, files, reports and data at a later date.
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3.4 |
Costs of Registration
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4.1 |
Apportionments
|
(a) |
Except as provided below in this Clause 4.1, the net amount of all benefits and obligations of every kind and nature relating to the operation of the Assets and accruing, payable or paid and received or receivable in respect of the Assets including mineral and surface lease rentals, property taxes, maintenance, development, capital and operating costs, gas cost allowances, proceeds from the sale of production, and revenues from processing and transportation fees charged to third parties (other than income taxes), shall be apportioned between the Parties as of the Effective Date, on an accrual basis regarding the interim statement of adjustments and on an actual basis regarding the final statement of adjustments.
|
(b) |
An interim accounting and adjustment including all back up shall be conducted for Closing and Vendor shall prepare and forward a draft interim statement of adjustments to Purchaser not less than five (5) Business Days prior to the Closing Date, for Purchaser's review.
|
(c) |
Within one hundred eighty (180) days of the Closing Date (the "Adjustment Period") Vendor shall prepare and forward to Purchaser a final accounting and adjustment (the "Final Statement of Adjustments" or the "FSOA"). Purchaser shall have thirty (30) days from receipt of the FSOA to review same. Subject to Subclauses (d) and (e) of this Clause 4.1, settlement of accounts will be considered concluded when the Parties agree, evidenced by them signing the FSOA which expressly states that it is the final statement of all adjustments. The Parties shall not be obligated to make any adjustments after the Adjustment Period unless such adjustment has been specifically requested, by notice, within the Audit Period as defined in Subclause (d) hereof and as provided for in Subclause (e) hereof.
|
(d) |
During the one (1) year period following the date after which the Final Statement of Adjustments has been signed by both Parties (the "Audit Period"), Purchaser may audit Vendor's books, records and accounts respecting the Assets, for effecting adjustments pursuant to this Article 4. Such audit shall be conducted upon reasonable notice to Vendor at Vendor's offices during Vendor's normal business hours, and shall be conducted at Purchaser's sole expense. Any claims of discrepancies disclosed by such audit shall be made in writing to Vendor within thirty (30) days following the completion of such audit and Vendor shall respond in writing to any such claims of discrepancies within thirty (30) days of receipt of such claims.
|
(e) |
Notwithstanding the preceding Subclauses of this Clause 4.1, any adjustments established by an audit conducted pursuant to the Regulations or the provisions of the Leases or governing agreements with respect to Crown Royalty audits, joint venture audits or thirteenth-month adjustments which are outstanding at the Closing Time, or which occur after the Closing Time, shall be made as they occur in accordance with the provisions of existing Regulations or governing agreements, and shall be received or paid by the Party thereto entitled or thereby obliged.
|
(f) |
Vendor shall not be entitled to charge Purchaser for any of Vendor's administrative or overhead fees.
|
(g) |
As required by law, GST shall be payable and applied to adjustments and shall be paid by the applicable Party.
|
(h) |
Each Party agrees to make any payment required of it as a result of the adjustments provided for in this Clause 4.1 within thirty (30) days of being notified of the determination of the amount owing, and failing which shall be liable to pay interest on any unpaid amounts at the Prime Rate plus two (2%) percent.
|
(i) |
To the extent to which the Parties cannot agree to the accounting provided for in this Clause 4.1, either Party may refer the matter for determination in accordance with Article 9.
|
5.1 |
Maintenance of Assets
|
(a) |
maintain the Assets in a proper and prudent manner in accordance with good oil and gas industry practices and in material compliance with all applicable Regulations;
|
(b) |
maintain current insurance policies, if any;
|
(c) |
pay or cause to be paid all costs and expenses relating to the Assets which become due from the date hereof to the Closing Date; and
|
(d) |
perform and comply with all covenants and conditions in the Leases and any other agreements and documents to which the Assets are subject.
|
5.2 |
Material Commitments
|
(a) |
From the date hereof to the Closing Time, Vendor shall not, without Purchaser's prior written consent:
|
(i) |
voluntarily assume any obligation or commitment with respect to the Assets, where Vendor's share of the expenditure associated with such obligation or commitment is estimated to exceed $25,000.00;
|
(ii) |
surrender or abandon any of the Assets;
|
(iii) |
amend or terminate any Leases or any agreement to which the Assets are subject, or enter into any material new agreement respecting the Assets;
|
(iv) |
subject to Subclause 5.2(b), propose or initiate the exercise of any right (including bidding rights at Crown sales, rights under area-of mutual-interest provisions and Rights of First Refusal) or option relative to the Assets, or arising as a result of the ownership of the Assets, or propose or initiate any operations on the Lands which Vendor has not commenced or committed to as of the date hereof or the Effective Date;
|
(v) |
sell, transfer, surrender, abandon or otherwise dispose of the Assets, except to the extent required to comply with Rights of First Refusal;
|
(vi) |
resign or take any action which would result in Vendor's resignation or replacement as operator of any of the Assets for which Vendor is the current operator; or
|
(vii) |
grant a security or any encumbrance with respect to any of the Assets;
|
(b) |
If an operation or the exercise of any right or option available to Vendor with respect to the Assets is proposed in circumstances in which such operation or the exercise of such right or option would result in Purchaser incurring an obligation pursuant to Subclause 5.2(a), the following Paragraphs shall apply to such operation or the exercise of such right or option (hereinafter referred to as the "Proposal"):
|
(i) |
Vendor shall promptly give Purchaser notice of the Proposal, describing the particulars in reasonable detail;
|
(ii) |
Purchaser shall, not less than Twenty‑four (24) hours prior to the time Vendor is required to make its election with respect to the Proposal, advise Vendor, by notice, whether Purchaser wishes Vendor to exercise Vendor's rights with respect to the Proposal on Purchaser's behalf, provided that Purchaser's failure to make such election within such period shall be deemed to be Purchaser's election to not participate in the Proposal;
|
(iii) |
Vendor shall use all commercially reasonable efforts to make the election authorized by Purchaser with respect to the Proposal within the period during which Vendor may respond to the Proposal; and
|
(iv) |
Purchaser's election to not participate in any Proposal required to preserve the existence of any of the Assets or to avoid a penalty or similar loss or cost shall not entitle Purchaser to any reduction of the Purchase Price by reason thereof, and such termination shall not constitute a failure of Vendor's representations and warranties pertaining to such Assets, notwithstanding Clause 6.3.
|
5.3 |
Post-Closing Transition
|
(a) |
Vendor shall not initiate any operation with respect to the Assets, except upon receiving Purchaser's written instructions, or if Vendor reasonably determines that such operation is required for the protection of life or property or to otherwise deal with an emergency, in which case Vendor may take such actions as it reasonably determines are required without Purchaser's written instructions, but shall promptly notify Purchaser of such intention or actions and of Vendor's estimate of the costs and expenses associated therewith;
|
(b) |
Vendor shall, as bare legal trustee, hold all of Purchaser's interest in the Assets in trust for the Purchaser and Vendor shall hold and receive, as bare legal trustee and forthwith deliver to Purchaser all revenues, proceeds and other benefits received by Vendor with respect to the Assets during such post-closing period, provided that Vendor shall not be permitted to deduct from such revenues, proceeds and other benefits any other costs and expenses which it incurs as a result of such delivery to Purchaser;
|
(c) |
Vendor shall, in a timely manner, deliver to Purchaser:
|
(i) |
all third party notices and communications received in respect of the Assets, including AFEs and mail ballots;
|
(ii) |
all notices of any events or occurrences affecting the Assets, including:
|
(A) |
any spill or other incident involving environmental damage, environmental contamination or other environmental problems relating to or caused by the Assets;
|
(B) |
any order, directive or notification pursuant to the Regulations; and
|
(C) |
any event or incident relating to a workplace safety hazard; and
|
(d) |
Vendor shall, in a timely manner, deliver to third parties all such notices and communications which Purchaser may reasonably request and all such monies and other items as Purchaser may reasonably provide in respect of the Assets, provided that Vendor may (but shall not be obligated to) refuse to follow instructions which it reasonably believes to be unlawful, unethical or in conflict with any applicable agreement or contract;
|
5.4 |
Licence Transfers
|
(a) |
Within two (2) Business Days following Closing, Vendor shall prepare and, where applicable, electronically submit an application to the applicable governmental bodies for Licence Transfers and Purchaser or its nominee shall, where applicable, electronically ratify and sign such application.
|
(b) |
If the AER or other governmental body denies a Licence Transfer because of misdescription or other minor deficiencies in the application, Vendor shall, within two (2) Business Days of such denial, correct the application and amend and re-submit the application for the Licence Transfer and Purchaser or its nominee shall, where applicable, electronically ratify and sign such application.
|
(c) |
If, for any reason, the AER or other governmental body requires a Party or its nominee to make a deposit or furnish any other form of security in order to approve a Licence Transfer, such Party shall make such deposit or furnish such other form of security as is required and shall forthwith notify the other Party of such requirement. If such Party fails to pay such deposit or provide such security, the other Party shall be entitled (but not required) to do so and such other Party shall be required to reimburse such Party for such payment plus interest at the Prime Rate plus five (5%) percent.
|
(d) |
If a Party fails to perform any obligations requested, ordered or directed by the AER or other governmental body respecting Environmental Liabilities, and the AER or other governmental body refuses to approve a Licence Transfer as a result thereof, the other Party shall be entitled to (but not required to) enter upon and access the Assets to perform such obligations for and on behalf of the first Party without liability by the other Party to the first Party for trespass or otherwise, and the first Party shall reimburse the other Party for all costs, charges and expenses incurred by the other Party in the performance of such obligations, by providing payment thereof to the other Party within thirty (30) days of the other Party's delivery to the first Party of an invoice for such costs, charges and expenses together with interest thereon at a rate equal to the sum of the Prime Rate plus a rate of five percent (5%) from the date at which such costs, charges and expenses are incurred or paid by the other Party until such reimbursement is made. Any costs incurred to address the foregoing obligations shall be adjusted between Vendor and Purchaser in accordance with Clause 4.1, provided, however, that penalties and like expenses and the interest payable under this Subclause 5.4(d) shall be to the account of the Party who failed to perform the obligations.
|
5.5 |
Vendor Deemed Purchaser's Agent
|
(a) |
Insofar as Vendor maintains the Assets and takes actions thereto on Purchaser's behalf pursuant to and in accordance with clauses 5.1, 5.2 or 5.3, Vendor shall be deemed to have been Purchaser's agent hereunder. Purchaser ratifies all actions taken by Vendor or refrained from being taken by Vendor pursuant to and in accordance with clauses 5.1, 5.2 or 5.3 in such capacity during such period, with the intention that all such actions shall be deemed to be Purchaser's.
|
(b) |
Insofar as Vendor participates in either operations or the exercise of rights or options as Purchaser's agent pursuant to this Article 5, Vendor may require Purchaser to secure costs to be incurred by Vendor on Purchaser's behalf pursuant to such election in such manner as may be reasonably appropriate in the circumstances.
|
(c) |
Purchaser shall indemnify Vendor and its Representatives against all Losses which Vendor or Representatives may suffer or incur as a result of Vendor maintaining the Assets as Purchaser's agent pursuant to and in accordance with clauses 5.1, 5.2 or 5.3, insofar as such Losses are not a direct result of the breach of the obligations of the Vendor in clauses 5.1, 5.2 or 5.3 or the gross negligence or wilful misconduct of Vendor or of its Representatives. An action or omission of Vendor or of its Representatives shall not be regarded as a breach of clauses 5.1, 5.2, or 5.3 or gross negligence or wilful misconduct to the extent to which it was done or omitted from being done in accordance with Purchaser's instructions or concurrence.
|
5.6 |
Transfer of Operatorship
|
5.7 |
Removal of Signs
|
5.8 |
Pipeline Transfers
|
6.1 |
Representations and Warranties of Vendor
|
(a) |
Corporate Standing: Vendor is a corporation duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and is authorized to carry on business in the jurisdiction(s) in which the Assets are located;
|
(b) |
Requisite Authority: Vendor has taken all necessary corporate action and has all requisite power and authority to enter into this Agreement and to perform its obligations under this Agreement, and where Vendor acts herein in the capacity as agent and attorney on behalf of other Persons for the transfer and conveyance of their interests in and to the Assets, Vendor represents that such right, power and authority has been duly and properly delegated to Vendor in accordance with power of attorney duly executed by such Persons that at the date of this Agreement is, and at the date of Closing remains, a legally enforceable power of attorney authorizing and empowering Vendor with all right, power and authority to sell such Assets to Purchaser in accordance with the terms of this Agreement and to fulfill and perform all obligations provided herein;
|
(c) |
Execution and Enforceability of Documents: this Agreement and all other documents contemplated herein have been duly executed and delivered by Vendor and:
|
(i) |
constitute legal, valid, binding and enforceable obligations of Vendor in both its personal capacity or in its capacity as agent and attorney, as the case may be; and
|
(ii) |
constitute legal, valid, binding and enforceable obligations of against those Persons for whom Vendor acts hereunder as agent and attorney for the sale of their Assets hereunder;
|
(d) |
Quit Claims: Vendor has entered into validly executed and enforceable quit claim agreements with such applicable Vendor Partners set forth in Schedule "L" which validly transfer and convey the interests in the Assets from such Vendor Partners to Vendor prior to Closing, free and clear of all encumbrances other than Permitted Encumbrances and Vendor shall provide to Purchaser prior to Closing, true and complete copies of such quit claim agreements, which quit claim agreements remain in full force and effect and unamended;
|
(e) |
No Conflicts: Vendor's consummation of the Transaction herein contemplated will not, in any material respects, violate or conflict with any of Vendor's constating documents, by‑laws or governing documents, or with any provision of any material agreement or instrument to which Vendor is party or by which Vendor or the Assets is bound, or with any judgment, decree, order, statute, rule or Regulation applicable to Vendor or the Assets;
|
(f) |
Residency: Vendor is a non‑resident of Canada within the meaning of section 116 of the Income Tax Act (Canada), and Vendor has, and shall have at Closing, complied with any requirements of the Income Tax Act (Canada) that may be applicable at that time, when and to the extent that this Transaction is subject to the requirements thereof;
|
(g) |
Title: although Vendor does not warrant title to the Assets and except for Permitted Encumbrances;
|
(i) |
it has done no act or thing and is aware of no circumstance, matter, document or thing whereby any of the Assets may be cancelled or determined and the Assets are free and clear of any and all encumbrances and Security Interests;
|
(ii) |
other than as described in Schedule "A", none of the Petroleum and Natural Gas Rights are subject to reduction or conversion by reference to payout of any well or otherwise; and
|
(iii) |
subject to the rents, covenants, conditions and stipulations in the Leases and any other agreements pertaining to the Assets and on the lessee's or holder's part thereunder to be paid, performed and observed, Purchaser may enter into and upon, and hold and enjoy the Assets for the residue of the respective terms of the Leases, such other agreements relating to the Assets and all renewals or extensions thereof as to the interests hereunder assigned, for Purchaser's own use and benefit without any interruption of or by Vendor or any other Person whomsoever claiming by, through or under Vendor, including any Persons for whom Vendor acts as agent and attorney for the transfer and conveyance of the Assets;
|
(h) |
No Knowledge of Defaults: Vendor has no knowledge of, nor has it been informed of, any material default or notice of material default relating to the Assets, or any of them;
|
(i) |
Finders' Fees: Vendor has not incurred any obligation or liability, contingent or otherwise, for brokers' or finders' fees in respect of the Transaction for which Purchaser shall have any obligation or liability;
|
(j) |
No Lawsuits or Claims: there are no claims, proceedings, actions, lawsuits, administrative proceedings or governmental investigations in existence, contemplated or threatened against or with respect to Vendor in either its personal capacity or its capacity as agent and attorney for the transfer and conveyance of the Assets, or with respect to the Assets;
|
(k) |
Payment of Taxes: all ad valorem, property, production, severance and similar taxes and assessments based on or measured by the ownership of the Assets or the production of Petroleum Substances therefrom or the receipt of proceeds therefrom payable by Vendor prior to the Effective Date and for all prior years have been properly and timely paid and discharged;
|
(l) |
Payment of Royalties: all rentals, royalties and other amounts due under the Leases and payable by Barnwell prior to the Effective Date and for all prior years have been properly and timely paid and discharged;
|
(m) |
Compliance:Vendor has complied with, performed, observed and satisfied all material terms, conditions, obligations and liabilities which have heretofore arisen and were Vendor's obligations under any of the provisions of any agreement affecting the Assets or any then-existing statute, order, writ, injunction or decree of any governmental agency or court relating to the Assets;
|
(n) |
Documents: Vendor has made all reasonable inquiries and searches for material documents and information, it has delivered or made available to Purchaser all documents, instruments, records and books relevant to Vendor's title to the Lands and the Leases and in Vendor's possession or to which it has reasonable access;
|
(o) |
Worker's Compensation: Vendor is not in default of any amounts required to be paid to any workers' compensation board under any applicable laws or the Regulations, for which Purchaser shall have any obligation or liability;
|
(p) |
AFEs: other than the AFEs described in Schedule "H", there are no outstanding AFEs applicable to the Assets;
|
(q) |
Material Contracts: except for the Production Sales Contracts described in Schedule "I", there are no:
|
(i) |
gas balancing or similar agreements pertaining to the Petroleum Substances or any of them;
|
(ii) |
agreements for the sale, dedication, transportation, processing or disposal of the Petroleum Substances or any of them, or substances produced in connection with the Petroleum Substances or any of them; or
|
(iii) |
agreements for the contract operation by any Person of the Assets or any of them;
|
(r) |
Operations:
|
(i) |
where Vendor is or has been the operator, all operations related to the Assets have been conducted in compliance with the Regulations and in accordance with good oil and gas industry practices; and
|
(ii) |
where Vendor is not the operator, to Vendor's knowledge, all operations related to the Assets have been conducted in compliance with the Regulations and in accordance with good oil and gas industry practices;
|
(s) |
Environmental: Vendor is not aware of and has not received:
|
(i) |
any claims, orders or directives which relate to environmental matters or Environmental Liabilities and which require any work, repairs, construction or capital expenditures with respect to the Assets, where such orders or directives have not been complied with; or
|
(ii) |
any claims, demands or notices issued with respect to the breach of any environmental, health or safety law applicable to the Assets, including without limitation, respecting the use, storage, treatment, transportation or disposition of environmental contaminants, which demand or notice remains outstanding;
|
(t) |
Area of Mutual Interest: At Closing, the Assets will not be subject to any agreements which provide for areas of mutual interest or areas of exclusion;
|
(u) |
Take or Pay Obligations: the Assets are not subject to any outstanding Take or Pay Obligations;
|
(v) |
Rights of First Refusal: the Assets are not subject to any operative Rights of First Refusal of third Persons except for those set forth in Schedule "B";
|
(w) |
Penalties: except as described in Schedule "A", Vendor has not elected or refused to participate in any exploration, development or other operation on the Lands, which has given or may give rise to penalties or forfeitures;
|
(x) |
Production Penalties: except as described in Schedule "A", the Wells are not subject to any production penalty or similar production restriction of any nature and Vendor has not received notice of any change or proposed change in the government-established production allowables for any of the Wells that are not generally applicable;
|
(y) |
Offset Obligations: to Vendor's knowledge, there are no offset obligations arising under any of the Leases, including any unsatisfied obligation to drill a well or surrender rights or an obligation to pay compensatory royalties;
|
(z) |
No Excluded Assets: there are no Miscellaneous Interests or Tangibles excluded from the Assets except those set forth in Schedule "G";
|
(aa) |
Condition of Tangibles: Vendor's interest in and to all property, assets, interests and rights comprising the Tangibles is equivalent to Vendor's interest in and to the corresponding Petroleum and Natural Gas Rights and, to Vendor's knowledge, the Tangibles have been constructed, maintained and operated in accordance with good oil and gas field practices and with the material requirements of the Regulations and none of the Tangibles is leased or rented;
|
(bb) |
Material Loss or Damage: there has been no change in the Assets subsequent to the Effective Date other than in consequence of and in the ordinary course of operation and production which has or would have a material adverse effect on the value, use or operation thereof;
|
(cc) |
Well Abandonment: Vendor has not received notice under the Regulations to abandon any Well which has not been properly abandoned in accordance with the Regulations; and
|
(dd) |
Licensee Liability Rating: where Vendor is the licensee of the Wells and a registrant with the AER, Vendor's Licensee Liability Rating:
|
(i) |
at the date this Agreement is executed, is greater than or equal to 1.0;
|
(ii) |
as a result of the consummation of this Transaction, shall continue to be greater than or equal to 1.0; and
|
(iii) |
at the time the AER considers approval of any Conveyance Documents that require its approval, shall be greater than or equal to 1.0.
|
6.2 |
Purchaser's Representations and Warranties
|
(a) |
Corporate Standing: Purchaser is a corporation, duly incorporated and validly subsisting under the laws of the jurisdiction of its formation incorporation, and is authorized to carry on business in all jurisdictions in which the Assets are located;
|
(b) |
Requisite Authority: Purchaser has taken all necessary corporate action and has all requisite power and authority to enter into this Agreement and to perform its obligations under this Agreement;
|
(c) |
Execution and Enforceability of Documents: this Agreement and all other documents contemplated herein have been duly executed and delivered by Purchaser and constitute legal, valid, binding and enforceable obligations of Purchaser;
|
(d) |
No Conflicts: Purchaser's consummation of the transaction herein contemplated will not, in any material respects, violate or conflict with any of Purchaser's constating documents, by‑laws or governing documents or with any provision of any material agreement or instrument to which Purchaser is a party or by which Purchaser is bound, or with any judgment, decree, order, statute, rule or regulation applicable to Purchaser;
|
(e) |
Finders' Fees: Purchaser has not incurred any obligation or liability, contingent or otherwise, for brokers' or finders' fees in respect of the transaction herein contemplated for which Vendor shall have any obligation or liability;
|
(f) |
Investment Canada: Purchaser is not a "non‑Canadian" under the Investment Canada Act; and
|
(g) |
Licensee Liability Rating: Purchaser is a registrant with the AER, and Purchaser's Licensee Liability Rating:
|
(i) |
at the date this Agreement is executed, is greater than or equal to 1.0;
|
(ii) |
as a result of the consummation of this Transaction, shall continue to be greater than or equal to 1.0; and
|
(iii) |
at the time the AER considers approval of any Conveyance Documents that require its approval, shall be greater than or equal to 1.0.
|
6.3 |
Survival of Representations and Warranties
|
6.4 |
No Additional Representations or Warranties
|
(a) |
the quantity, quality or recoverability of Petroleum Substances respecting the Lands and comprised within the Assets;
|
(b) |
any estimates of the value of the Assets or the revenues applicable to future production of Petroleum Substances from the Lands;
|
(c) |
any engineering, geological or other interpretations or economic evaluations respecting the Assets;
|
(d) |
the rates of production of Petroleum Substances from the Lands; and
|
(e) |
the quality, condition, marketability or serviceability of the Assets or their suitability of use for any purpose.
|
7.1 |
Preferential Rights of Purchase
|
(a) |
If any of the Assets is subject to a Right of First Refusal, or if the disposition herein requires the consent of any third party which can be unreasonably withheld, Vendor shall comply with the terms of the provisions relating to any Right of First Refusal or consent and shall promptly serve all such notices as are required under such provisions, in accordance with the terms and conditions of any such Right of First Refusal and consent. Unless Purchaser otherwise agrees, each such notice shall include a request for a waiver of any Right of First Refusal to purchase any of the Assets and for the granting of any consent that may be required. From time to time, at Purchaser's request, Vendor shall advise Purchaser of the status of any consent or Right of First Refusal. At Closing, Vendor shall deliver to Purchaser evidence that all such Rights of First Refusal have been complied with and either have been exercised or waived or have expired by the effluxion of time.
|
(b) |
Within two (2) days after the execution of this Agreement, Purchaser, acting reasonably, shall advise Vendor in writing of Purchaser's bona fide allocation of a portion of the Purchase Price to the Assets which are subject to the Right of First Refusal and except if modified by agreement or an Alberta court of competent jurisdiction by reason of a dispute, such bona fide allocation shall be used for the purposes of this Clause 7.1.
|
(c) |
If a Right of First Refusal is exercised, Vendor shall comply with such Right of First Refusal, and shall transfer those of the Assets which are subject to the Right of First Refusal to all holders of the Right of First Refusal which exercised their right.
|
(d) |
If a holder of any Right of First Refusal to purchase any of the Assets exercises such right, that fact shall not be considered a Title Defect and the Assets subject to such Right of First Refusal exercised in accordance with its terms shall cease to be subject to this Agreement and all definitions set forth herein shall be and shall be deemed to be amended accordingly, the Purchase Price and allocation set forth in Clause 2.3 shall be reduced in accordance with the value ascribed to same in Subclause 7.1(b), (or the value modified by agreement or an Alberta court of competent jurisdiction should that be the case), and the Parties shall proceed with Closing for the Assets which remain unaffected by such exercised Rights of First Refusal.
|
(e) |
If a holder of any Right of First Refusal exercises a Right of First Refusal and is then unable or unwilling to enter in to a conveyance agreement with Vendor to acquire the relevant Assets, Purchaser shall accept a conveyance of such Assets for the amount that would have been payable by the purchaser of such Assets pursuant to Subclause 7.1(b) and under the same terms and conditions as provided in this Agreement, including provision for the appropriate Section 116 Withholding Amount for such Assets, provided that Purchaser shall not be required to accept such a conveyance more than one hundred and eighty (180) days following the Closing Date. Any conveyance to Purchaser pursuant to this Subclause 7.1(e) shall be subject to the rights of any other Right of First Refusal holders who have also exercised their Right of First Refusal with respect to the same Assets and who, accordingly, have a right to acquire their proportionate share of such Assets.
|
(f) |
Purchaser shall be liable to Vendor for and shall in addition indemnify and hold Vendor harmless from and against all Losses which arise from any matter or thing occurring or arising, through or attributable to the allocations provided by Purchaser to Vendor for the purposes of this Article 7, whether or not such allocations are reasonable.
|
8.1 |
Title Review
|
8.2 |
Title Defects
|
8.3 |
Vendor's Rectification
|
(a) |
where the cumulative value of the affected Assets is less than Five percent (5%) of the Purchase Price, Purchaser shall be obligated to complete the purchase of the Assets without adjustment of the Purchase Price on account of Title Defects;
|
(b) |
where the cumulative value of the affected Assets is Five percent (5%) or more of the Purchase Price, the Purchase Price shall be reduced by such amount and Purchaser shall be obligated to proceed to purchase the Assets at the reduced Purchase Price; or
|
(c) |
where the cumulative value of the affected Assets is Twenty percent (20%) or more of the Purchase Price, either Purchaser or Vendor may terminate this Agreement by providing written notice to the other Party one (1) Business Day prior to the Closing Date, in which case the Parties shall have no further obligation to each other, except for obligations arising pursuant to Article 11. If neither Party provides such written notice to terminate, the Purchase Price shall be reduced by such amount and Purchaser shall be obligated to proceed to purchase the Assets at the reduced Purchase Price.
|
8.4 |
Value Disputes
|
8.5 |
Environmental Review
|
8.6 |
Environmental Defects
|
8.7 |
Vendor's Rectification
|
(a) |
where the cumulative value of the affected Assets is less than Five percent (5%) of the Purchase Price, Purchaser shall be obligated to complete the purchase of the Assets without adjustment of the Purchase Price on account of Title Defects;
|
(b) |
where the cumulative value of the affected Assets is Five percent (5%) or more of the Purchase Price, the Purchase Price shall be reduced by such amount and Purchaser shall be obligated to proceed to purchase the Assets at the reduced Purchase Price; or
|
(c) |
where the cumulative value of the affected Assets is Twenty percent (20%) or more of the Purchase Price, either Purchaser or Vendor may terminate this Agreement by providing written notice to the other Party one (1) Business Day prior to the Closing Date, in which case the Parties shall have no further obligation to each other, except for obligations arising pursuant to Article 11. If neither Party provides such written notice to terminate, the Purchase Price shall be reduced by such amount and Purchaser shall be obligated to proceed to purchase the Assets at the reduced Purchase Price.
|
8.8 |
Value Disputes
|
9.1 |
Reference to Arbitration
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(a) |
Insofar as the Parties are unable to agree on any matter which expressly may be referred to arbitration hereunder, either Party may serve the other Party written notice that it wishes such matter referred to arbitration.
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(b) |
The Parties shall meet within seven (7) days of the receipt of a notice issued pursuant to Subclause 9.1(a), to attempt to agree on a single arbitrator qualified by experience, education and training, to determine such matter. If the Parties are unable to agree on the selection of the arbitrator, the Party which issued such notice shall forthwith make application to a judge of the Court of Queen's Bench of the Province of Alberta pursuant to the Arbitration Act (Alberta) for the appointment of a single arbitrator, and failing such action on the part of the Party which issued such notice, the other Party may make such application.
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9.2 |
Proceedings
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(a) |
The arbitrator selected pursuant to Clause 9.1 shall proceed as soon as is practicable to hear and determine the matter in dispute. The Parties shall direct the arbitrator to provide the Parties with a written decision respecting such matter within forty‑five (45) days of the arbitrator's appointment. The Parties shall provide such assistance and information as may be reasonably necessary to enable the arbitrator to make its decision.
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(b) |
Except to the extent modified by this Article 9, the arbitrator shall conduct any arbitration hereunder pursuant to the provisions of the Arbitration Act (Alberta).
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9.3 |
Compensation
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10.1 |
Required Approvals
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10.2 |
Conditions for Purchaser's Benefit
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(a) |
No Substantial Damage: there shall have been no damage to or alteration of any of the Assets between the date of this Agreement or the Effective Date, whichever is earlier, and the Closing Time which, in Purchaser's reasonable opinion, would materially and adversely affect the value of the Assets, except as and to the extent approved in writing by Purchaser, and Vendor shall have delivered to Purchaser Vendor's certificate, substantially in the form of Schedule "K" dated as of the Closing Date, that there has been no such damage to or alteration of any of the Assets during such period, provided that a change in the prices at which Petroleum Substances may be sold shall in no event be regarded as material damage to or an alteration of the Assets;
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(b) |
Availability of Documents: pursuant to Article 8, Vendor shall have provided Purchaser and its nominees with reasonable access to all of Vendor's records and documents pertaining to the Assets, in order for Purchaser and its agents to confirm Vendor's title to the Assets including copies of all power of attorney agreements and quit claims (as applicable) for each of the Vendor Partners, which power of attorney agreements and quit claims shall be on terms and conditions acceptable to Purchaser, acting reasonably;
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(c) |
Vendor's Material Compliance: Vendor shall have delivered to Purchaser a certificate in the form of Schedule "K", dated as of the Closing Date, stating that in all material respects, Vendor has performed or complied with each of the terms, covenants and conditions of this Agreement to be performed or complied with by Vendor at or prior to the Closing;
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(d) |
Representations Correct: Vendor shall have delivered to Purchaser its certificate in the form of Schedule "K", dated as of the Closing Date, stating that each of the representations and warranties contained in Clause 6.1, as of the date of this Agreement was, and on the Closing Date is, true and correct in all material respects;
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(e) |
Delivery of Conveyance Documents: Vendor shall have delivered to Purchaser those documents and materials described in Subclause 3.3(a);
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(f) |
Rights of First Refusal: At least two (2) Business Days prior to the Closing Date, all Rights of First Refusal shall have been determined by both Parties to be inapplicable, waived or exercised, or shall have expired by the effluxion of time.
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(g) |
Assets Production: Production from the Assets prior to Closing shall have been not less than net fifty-five (55) barrels of oil per day on average for the previous month's production reported on Petrinex.
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10.3 |
Conditions for Vendor's Benefit
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(a) |
Payment of Purchase Price: Purchaser shall have tendered to Vendor the Purchase Price and applicable GST in the manner provided for in Clause 2.3, subject to any adjustments provided for in Article 4, and the Withholding Amount provided for in Clause 2.5;
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(b) |
Purchaser's Material Compliance: Purchaser shall have delivered to Vendor Purchaser's certificate, in the form of Schedule "K" dated as of the Closing Date, to the effect that in all material respects, Purchaser shall have performed or complied with each of the terms, covenants and conditions of this Agreement to be performed or complied with by Purchaser at or prior to the Closing Time;
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(c) |
Representations Correct: Purchaser shall have delivered to Vendor Purchaser's certificate, in the form of Schedule "K", dated as of the Closing Date, stating that each of the representations and warranties contained in Clause 6.2 was, as of the date of this Agreement and is, as of the Closing Date, true and correct in all material respects;
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(d) |
Delivery of Conveyance Documents: Purchaser shall have delivered to Vendor at least one (1) copy of the documents described in Subclause 3.3(b);
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(e) |
Rights of First Refusal: At least two (2) Business Days prior to the Closing Date, all Rights of First Refusal shall have been determined by both Parties to be inapplicable, waived or exercised, or shall have expired by the effluxion of time.
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10.4 |
Waiver of Conditions
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10.5 |
Failure to Satisfy Conditions
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10.6 |
Parties' Diligence
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10.7 |
Confidentiality
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(a) |
Information respecting the Assets shall be retained in confidence and used only for the purposes of the transaction herein contemplated, provided that, upon Closing, Purchaser's rights to use or disclose such information shall be subject only to any operating, unit or other agreements that apply to the transaction herein contemplated. Any additional information obtained as a result of access to Vendor's records which does not relate to the Assets shall continue to be treated as confidential and shall not be used by Purchaser without Vendor's prior written consent. However, the restrictions on disclosure and use of information in this Agreement shall not apply to information to the extent to which it:
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(i) |
is or becomes publicly available through no act or omission of Purchaser or its consultants or advisors;
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(ii) |
is lawfully obtained from a third party; or
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(iii) |
is already in Purchaser's possession at the time of disclosure, without restriction on disclosure;
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(b) |
Neither Party will make any press release or other public announcement respecting this Transaction without the written consent of the other Party, such consent not to be unreasonably withheld. Anything in this paragraph to the contrary notwithstanding, a Party may make any required press release or other public announcement necessary to comply with any Regulations or the rules of any listing authority or stock exchange with which the disclosing Party is bound to comply.
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10.8 |
Consultants and Advisors Bound
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11.1 |
Indemnities
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(a) |
Subject to Clause 11.4, Vendor shall:
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(i) |
be liable to Purchaser and its Representatives for; and
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(ii) |
indemnify, save and hold harmless Purchaser and its Representatives from and against;
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(b) |
Subject to Clause 11.4, Purchaser shall:
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(i) |
be liable to Vendor and its Representatives for; and
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(ii) |
indemnify, save and hold harmless Vendor and its Representatives from and against;
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11.2 |
Purchaser's General Indemnity
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(a) |
be liable to Vendor and its Representatives for; and
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(b) |
indemnify, save and hold harmless Vendor and its Representatives from and against;
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11.3 |
Environmental Indemnity
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(a) |
be liable to Vendor and its Representatives for; and
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(b) |
indemnify, save and hold harmless Vendor and its Representatives from and against;
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11.4 |
Limitation of Claims
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(a) |
In the absence of fraud, no claim in respect of Clause 6.1, Clause 6.2, or this Article 11 shall be made or be enforceable, whether by legal proceedings or otherwise, unless notice describing such claim in reasonable detail is given by the claimant to the applicable Party within twelve (12) months of the Closing Date except in respect of any claims for a breach of Subclauses 6.1 (b), 6.1 (c) or 6.1(d), which claims shall not be subject to any time limitations.
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(b) |
Notwithstanding anything contained herein, the total liabilities in this Agreement of Vendor, including any claims relating to its representations and warranties in Clauses 6.1, shall not, under any circumstances exceed a sum equivalent to the Purchase Price.
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(c) |
Except as specifically and expressly provided in this Agreement, nothing contained in this Agreement shall impose any liability on a Party for indirect or consequential damages, including, but not limited to, business loss, loss of profits or economic losses which are or may be suffered by a Party or its successors and assigns, or any punitive damages.
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(d) |
Except as specifically and expressly provided in this Agreement, nothing contained in this Article 11 shall impose any liability on any Party for the income tax liabilities of another Party.
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(e) |
The adjustments to the Purchase Price pursuant to Clause 4.1 and any payments made in respect thereto shall not be considered Losses or liabilities of a Party and shall not be limited by this Clause 11.4.
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11.5 |
Notice of Claims
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12.1 |
Termination
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(a) |
as set forth in Subclause 8.3(c) or 8.7(c);
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(b) |
by Vendor if any of the conditions set forth in Clause 10.3 are not satisfied in all material respects or waived on or before the Closing Time by Vendor (where entitled to do so);
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(c) |
by Purchaser if any of the conditions set forth in Clause 10.2 are not satisfied in all material respects or waived on or before the Closing Time by Purchaser (where entitled to do so);
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(d) |
by Purchaser if this Agreement does not close by 4:00 PM on February 28, 2018; or
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(e) |
at any time by the mutual written agreement of Purchaser and Vendor.
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12.2 |
Liabilities upon Termination
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13.1 |
Service of Notices
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(a) |
personally, by delivering the notice to the Party at that Party's address for service during normal business hours on a Business Day in which case the notice shall be deemed to have been given to and received by that Party when delivered. If a notice is not delivered on such a day or is delivered after the addressee's normal business hours, such notice shall be deemed to have been received by such Party at the commencement of that Party's next ensuing Business Day following the time of the delivery;
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(b) |
by facsimile transmission to a Party to such Party's fax number for notices hereunder, in which case the notice shall be deemed to have been received by that Party when transmitted, provided that if the notice is not transmitted on a Business Day or is transmitted after normal business hours on a Business Day, it will be deemed to have been received on the next ensuing Business Day; or
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(c) |
except in the event of an actual or threatened postal strike or other labour disruption that may affect mail service, by registered mail to a Party at the address of such Party set out below, in which case the item so mailed shall be deemed to have been received by that Party on the fifth (5th) Business Day following the date of the mailing thereof.
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13.2 |
Addresses for Notices
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Vendor: |
Barnwell of Canada, Limited
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Purchaser: |
Harvest Operations Corp.
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13.3 |
Right to Change Address
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14.1 |
Further Assurances
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14.2 |
Subordination of Ancillary Documents
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14.3 |
Governing Law
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14.4 |
Time
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14.5 |
Public Disclosure
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14.6 |
Assignments
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14.7 |
Waiver in Writing
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14.8 |
No Merger
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14.9 |
Prior Agreements and Amendments
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14.10 |
Entire Agreement
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14.11 |
Enurement
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14.12 |
Substitution and Subrogation
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14.13 |
Remedies Cumulative
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14.14 |
Counterpart Execution
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HARVEST OPERATIONS CORP.
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|||
Per:
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/s/ Jon Lowes | ||
Jon Lowes
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|||
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Vice-President, Land |
BARNWELL OF CANADA, LIMITED,
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|||
in its personal capacity and in its capacity as agent and attorney
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|||
Per:
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/s/ Lloyd Arnason, P. Eng. | ||
Lloyd Arnason, P. Eng.
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|||
|
President & Chief Operating Officer |
LEASES
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LANDS
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VENDOR'S
INTEREST
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ENCUMBRANCES
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Alberta Crown PNG 129277
M00262
|
Twp. 087 Rge. 09 W5M: Pt. NE 8, Pt. SW 9
PNG surface to top Slave Point
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19.88636%
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-Alberta Crown Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest OP 75%
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Alberta Crown PNG 129277
M00262
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Twp. 087 Rge. 09 W5M : Pt. NE 8
PNG in Slave Point
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19.88636%
|
-Alberta Lessor Royalty
-Non-Convertible GORR of 1/150 (5%-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest OP 75%
|
Alberta Crown PNG 129277
M00262
|
Twp. 087 Rge. 09 W5M : Pt. NE 8, Pt. SW 9
PNG from base Slave Point to base Granite Wash
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19.88636%
|
-Alberta Crown Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 50% and Harvest OP 50%
|
Alberta Crown PNG 129277
M00262
|
Twp. 087 Rge. 09 W5M:
Pt. SW 9
PNG in Slave Point (Unitized Zone)
|
Pt. of 5.4930%
(Unit)
(19.88636%
non-unit)
|
-Alberta Crown Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest OP 75%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M: NE 4, SE 8, Pt. SW 9, SE 9
PNG surface to top Slave Point
|
19.88636%
|
-Indian Oil & Gas Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest 75%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M: NE 4,
PNG in Slave Point (Unitized Zone)
|
Pt. of 5.4930%
(Unit)
(19.88636% non-unit)
|
-Indian Oil & Gas Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest 75%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M: SE 8
PNG in Slave Point (Unitized Zone)
|
Pt. of 5.4930%
(Unit)
(19.88636%
non-unit)
|
-Indian Oil & Gas Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest 75%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M: SE8
PNG base Slave Point to base Granite Wash
|
19.88636%
|
-Indian Oil & Gas Lessor Royalty
-Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold 50% and Harvest 50%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M : Pt. NE 8,
N 9
PNG surface to base Slave Point
|
19.88636%
|
-Indian Oil & Gas Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest 75%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M: SE 9
PNG in Slave Point (Unitized Zone)
|
Pt. of 5.4930%
(Unit)
(19.88636% non-unit)
|
-Indian Oil & Gas Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest 75%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M:
Pt. SW 9
PNG in Slave Point (Unitized Zone)
|
Pt. of 5.4930%
(Unit)
(19.88636% non-unit)
|
-Indian Oil & Gas Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 25% and Harvest 75%
|
Indian Oil & Gas Canada
FL-0044
M01273
|
Twp. 087 Rge. 09 W5M: NW 9, Pt. SW 9
PNG base Slave Point to base Granite Wash
|
19.88636%
|
-Indian Oil & Gas Lessor Royalty
- Non-Convertible GORR of 1/150 (5-15%) on oil and 15% on gas on 50% of production paid by BOC 50% to Freehold PTP 50% and Harvest 50%
|
UNIT DESCRIPTION
(File)
|
VENDOR'S INTEREST
|
Loon Lake Slave Point "G" Pool Unit
(Unit Agreement and Unit Operating Agreement)
(U00109)
|
Net 2.114% being a Portion of Vendor's 5.4930% Unit Interest
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UWI
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WELL NAME
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LICENSE NUMBER
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100/04-09-087-09W5/00
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Star et al Loon 4-9-87-9
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0212566
|
100/06-09-087-09W5/00
|
Star et al Loon 6-9-87-9
|
0117444
|
100/09-09-087-09W5/00
|
Star et al Loon 9-9-87-9
|
0122860
|
102/09-09-087-09W5/00
|
Ulster et al Loon 9-9-87-9
|
0132723
|
100/11-09-087-09W5/02
|
Star et al Loon 11-9-87-9
|
0125187
|
100/02-08-087-09W5/00
|
Star et al Loon 2-8-87-9
|
0122891
|
100/08-08-087-09W5/00
|
Harvest Loon 8-8-87-9
|
0414065
|
100/11-09-087-09W5/00
|
Star et al Loon 11-9-87-9
|
0125187
|
100/12-09-087-09W5/00
|
Star et al Loon 12-9-87-9
|
0214668
|
100/14-09-087-09W5/00
|
Star et al Loon 14-9-87-9
|
0212362
|
100/09-08-087-09W5/00
|
Star et al Loon 9-8-87-9
|
0127018
|
100/09-08-087-09W5/02
|
Star et al Loon 9-8-87-9
|
0127018
|
BARNWELL OF CANADA, LIMITED,
|
|||
in its personal capacity and in its capacity as agent and attorney
|
|||
Per:
|
/s/ Lloyd Arnason, P. Eng. | ||
Lloyd Arnason, P. Eng.
|
|||
|
President & Chief Operating Officer |
HARVEST OPERATIONS CORP.
|
|||
Per:
|
/s/ Jon Lowes | ||
Jon Lowes
|
|||
|
Vice-President, Land |
RE: |
Purchase and Sale Agreement made February 1, 2018 between Barnwell of Canada, Limited, as Vendor, and , as Purchaser (the "Agreement")
|
l
|
|||
Per:
|
|||
Name:
|
|||
Title:
|
US PARTNER
|
METHOD OF ACQUISITION
|
Dr. Joseph E. Magaro
|
Power of Attorney - $105,000 under 2.4(b)
|
The Estate of R. David Sudarsky
|
Power of Attorney - $105,000 under 2.4(b)
|
George T. Beebe
|
Quitclaim
|
Cosmo D. Bitetti
|
Quitclaim
|
John N. Blackman
|
Quitclaim
|
Mark Blackman
|
Quitclaim
|
Dr. Jack Dodick
|
Quitclaim
|
Susan Eisenstat
|
Quitclaim
|
Robert H. Elkes
|
Quitclaim
|
Brett Enterprises
|
Quitclaim
|
Dr. Jean Fasano
|
Quitclaim
|
Phillip Fisher
|
Quitclaim
|
Steven Furer
|
Quitclaim
|
George J. Green
|
Quitclaim
|
Victor Groisser
|
Quitclaim
|
Carol Ann Heller Kallet
|
Quitclaim
|
Melvin S. Heller
|
Quitclaim
|
Benjamin Hoffman
|
Quitclaim
|
Burton R. Hoffner
|
Quitclaim
|
Annette Katzin
|
Quitclaim
|
Alan Lefkowitz
|
Quitclaim
|
Manuel L. Matnick
|
Quitclaim
|
Emmanuel Metz
|
Quitclaim
|
Mullholland, Kaufman & Brady, Inc.
|
Quitclaim
|
Else Sackler
|
Quitclaim
|
Walter Weitzner
|
Quitclaim
|
David Wilson
|
Quitclaim
|