EFFECT THAT WOULD HAVE EXISTED BUT FOR SUCH NULLIFICATION.
ARTICLE V
ASSUMPTION AND INDEMNIFICATION
5.1
ASSUMED OBLIGATIONS.
OWNER HEREBY ASSUMES ALL COSTS AND
LIABILITIES OF SURFACE OPERATOR OR ANY PREDECESSORS IN INTEREST, INCLUDING COSTS
AND LIABILITIES ATTRIBUTABLE TO
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ABANDONMENT, OPERATIONS, PLUGGING AND REMEDIATION, ARISING UNDER THE SURFACE USE
AGREEMENT (THE "ASSUMED OBLIGATIONS").
5.2
INDEMNIFICATION.
OWNER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD
HARMLESS SURFACE OPERATOR FROM AND AGAINST ANY AND ALL LOSS, COST, EXPENSE,
DAMAGE AND LIABILITY (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY'S FEES)
ARISING OUT OF OR RELATED TO THE SURFACE OPERATIONS, THE SURFACE USE AGREEMENT
OR THE OWNERSHIP OF THE LEASE, INCLUDING WITHOUT LIMITATION ALL ASSUMED
OBLIGATIONS (OTHER THAN TO THE EXTENT RESULTING FROM SURFACE OPERATOR'S MATERIAL
BREACH OF THIS AGREEMENT, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN
CONDUCTING SURFACE OPERATIONS), REGARDLESS OF SURFACE OPERATOR'S SIMPLE
NEGLIGENCE OR STRICT LIABILITY.
ARTICLE VI
TERMINATION
6.1
TERMINATION.
THIS AGREEMENT SHALL TERMINATE UPON THE FIRST TO
OCCUR OF:
(A)
THE ASSIGNMENT BY SURFACE OPERATOR TO OWNER OF THE SURFACE USE
AGREEMENT FOLLOWING THE RECEIPT OF ALL CONSENTS NECESSARY THEREFOR;
(B)
SURFACE OPERATOR AND OWNER CEASING TO BE AFFILIATES; AND
(C)
THE OWNER AND SURFACE OPERATOR MUTUALLY AGREE IN WRITING TO SUCH
TERMINATION.
For purposes of this Section, "Affiliate" shall mean, with respect to a given
person or entity, any other person or entity (i) that directly or indirectly
(through one or more intermediaries) controls, or is controlled by, or is under
common control with, such first mentioned person or entity, (ii) that
beneficially owns, holds or controls 50% or more of the interest of such first
mentioned person or entity, or (iii) for which 50% or more of the interest
therein is beneficially owned, held or controlled by such first mentioned person
or entity.
6.2
SURVIVAL.
ARTICLE V SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
ARTICLE VII
MISCELLANEOUS
7.1
CHOICE OF LAW.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF CALIFORNIA WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES THAT WOULD APPLY
THE LAWS OF ANOTHER JURISDICTION.
7.2
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT CONTRAVENES, OR
IS UNENFORCEABLE UNDER, APPLICABLE LAWS SUCH PROVISION SHALL BE DEEMED SEVERABLE
AND OF NO FORCE OR EFFECT TO THE
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EXTENT OF SUCH CONTRAVENTION OR UNENFORCEABILITY BUT ALL OTHER PROVISIONS HEREOF
SHALL NEVERTHELESS REMAIN IN FULL FORCE AND EFFECT. IF ANY SUCH SEVERED
PROVISION ALTERS THE OVERALL ECONOMIC EFFECT BETWEEN THE PARTIES HEREUNDER, THE
PARTIES SHALL USE GOOD FAITH EFFORTS TO AMEND THIS AGREEMENT TO CREATE THE
ECONOMIC EFFECT THAT WOULD HAVE EXISTED BUT FOR SUCH SEVERING.
7.3
ASSIGNMENTS.
NEITHER PARTY SHALL ASSIGN THIS AGREEMENT WITHOUT THE
EXPRESS PRIOR WRITTEN CONSENT OF THE OTHER PARTY.
7.4
HEADINGS.
THE HEADINGS OF ARTICLES AND SECTIONS OF THIS AGREEMENT
ARE USED FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT LIMIT OR AFFECT THE
LEGAL CONSTRUCTION OF ANY PROVISION HEREOF.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first above written.
BREITBURN ENERGY COMPANY L.P.,