                                                                                     ACCEPTED
                                                                                07-17-00112-CV
                                                                    SEVENTH COURT OF APPEALS
                                                                              AMARILLO, TEXAS
                                                                               8/2/2017 2:36 PM
                                                                               Vivian Long, Clerk


                            No. 07-17-00112-CV
                        IN THE COURT OF APPEALS          FILED IN
                   FOR THE SEVENTH DISTRICT OF TEXAS
                                                  7th COURT OF APPEALS
                                                    AMARILLO, TEXAS
                              AT AMARILLO
                                                  8/2/2017 2:36:27 PM
                                                       VIVIAN LONG
         GRANITE OPERATING COMPANY AND APACHE CORPORATION CLERK

                                                Appellants,
                                     v.
 PEYTON ROYALTIES, L.P., BAILEY PEYTON, INDIVIDUALLY AND AS TRUSTEE OF
    THE GEORGE BAILEY PEYTON, IV 2007 GRANTOR RETAINED ANNUITY
      TRUST NO. 1, PEYTON HOLDINGS, PAC PRODUCTION COMPANY,
           MESA OIL & GAS CORPORATION, AND CATTALO, LTD.

                                                Appellees.


               On Appeal from the 31st Judicial District Court
                        of Wheeler County, Texas


                     BRIEF OF APPELLANTS
      GRANITE OPERATING COMPANY AND APACHE CORPORATION


John A. “Jad” Davis                       Ryan Clinton
State Bar No. 05511400                    State Bar No. 24027934
jadavis@dgclaw.com                        rdclinton@dgclaw.com
DAVIS, GERALD & CREMER, P.C.              DAVIS, GERALD & CREMER, P.C.
400 West Illinois, Suite 1400             600 Congress Ave., Suite 3100
Midland, Texas 79701                      Austin, Texas 78701
Ph: (432) 687-0011                        Ph: (512) 493-9600
Fax: (432) 687-1735                       Fax: (512) 693-9625

           Counsel for Appellants Granite Operating Company
                        and Apache Corporation

                         Oral Argument Requested
                        IDENTITY OF PARTIES

Parties                          Trial and Appellate Counsel
Defendants: Granite Operating    Appellate Counsel:
Company and Apache Corporation   Ryan Clinton
                                 State Bar No. 24027934
                                 rdclinton@dgclaw.com
                                 DAVIS, GERALD & CREMER, P.C.
                                 600 Congress Ave., Suite 3100
                                 Austin, Texas 78701
                                 Ph: (512) 493-9600
                                 Fax: (512) 493-9625

                                 John A. “Jad” Davis
                                 State Bar No. 05511400
                                 jadavis@dgclaw.com
                                 DAVIS, GERALD & CREMER, P.C.
                                 400 West Illinois, Suite 1400
                                 Midland, Texas 79701
                                 Ph: (432) 687-0011
                                 Fax: (432) 687-1735

                                 Trial Counsel:
                                 John Ben Blanchard
                                 State Bar No. 02446200
                                 jblanchard@bf-law.com
                                 Adam T. Blanchard
                                 State Bar No. 24072816
                                 ablanchard@bf-law.com
                                 Brown & Fortunato, P.C.
                                 905 S. Fillmore, Suite 400
                                 Amarillo, TX 79101
                                 Ph: (806) 345-6300
                                 Fax: (806) 345-6363




                                   ii
Plaintiffs: Tommy Yowell; Gail       Joe W. Hayes
Yowell; Harry Graff; El Tercio,      State Bar No. 09277300
LLC; and Casuarina Investments,      joe@tshhr.com
LLC (d/b/a LAR Resources, LLC)       John Smithee
                                     State Bar No. 18788600
                                     john@tshhr.com
                                     Templeton, Smithee, Hayes,
                                       Heinrich & Russell, L.L.P.
                                     320 S. Polk, Suite 1000
                                     Amarillo, TX 79101
                                     Ph: (806) 324-0324
                                     Fax: (806) 379-8568

Third-Party Defendants: Peyton       Thomas C. Riney
Royalties, L.P.; Bailey Peyton,      State Bar No. 16935100
Individually and as Trustee of the   triney@rineymayfield.com
George Bailey Peyton, IV 2007        Joni Kleinschmidt
Grantor Retained Annuity Trust       State Bar No. 24037249
No. 1; and Peyton Holdings           jkleinschmidt@rineymayfield.com
Corporation (“The Peyton Group”)     Kerri L. Stampes
                                     State Bar No. 24031270
                                     kstampes@rineymayfield.com
                                     Riney & Mayfield LLP
                                     320 S. Polk Street, Suite 600
                                     Amarillo, TX 79101
                                     Ph: (806) 468-3200
                                     Fax: (806) 376-4509




                                      iii
Third-Party Defendants: PAC          Thomas A. Zabel
Production Company; Mesa Oil &       State Bar No. 22235500
Gas Corporation; and Cattalo, Ltd.   tzabel@zflawfirm.com
(“The PAC Group”)                    John Smither
                                     State Bar No. 00789637
                                     jsmither@zflawfirm.com
                                     Nancy H. Elliott
                                     State Bar No. 08701240
                                     nelliott@zflawfirm.com
                                     Zabel & Freeman
                                     1135 Heights Blvd.
                                     Houston, TX 77008
                                     Ph: (713) 802-9117
                                     Fax: (713) 802-9114

                                     Formerly represented by:
                                     Ronald D. Nickum
                                     State Bar No. 15015000
                                     rdn@nickumlaw.com
                                     610 S.W. 11th Avenue
                                     Amarillo, TX 79101
                                     Ph: (806) 371-8888
                                     Fax: (806) 374-9618




                                       iv
                                            TABLE OF CONTENTS

Identity of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         The 1986 Leases: Aikman Oil Company leases the minerals, then sells
         the leases while reserving an overriding royalty interest.. . . . . . . . . . . . . . . 1

         The 2007 Leases & the First Lawsuit: Amarillo Production Company
         buys top leases of the minerals and sues Upland... . . . . . . . . . . . . . . . . . . . . 2

         The Upland Sale & the Indemnification Agreement: Cordillera
         purchases Upland from the Peyton Group, which indemnifies Cordillera
         and Upland against “any adverse consequence arising from or in
         connection with” APC’s lease-termination claims.. . . . . . . . . . . . . . . . . . . . 2

         The First Lawsuit’s Settlement: Bailey Peyton settles the APC lawsuit
         on behalf of Upland—reserving overriding royalty interests in the top
         leases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         The Current Lawsuit: The 1986 leases’ overriding-royalty-interest
         owners sued Granite, and the Peyton Group declined to honor the
         indemnification agreement... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

         The Judgment: The trial court rejected Plaintiffs’ claims against Granite
         and Apache and also Granite and Apache’s claims against the Peyton
         Group and the PAC Group... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


                                                              v
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

         I.        The Trial Court Erred by Rendering Judgment That Granite &
                   Apache Take Nothing on Their Breach-of-Indemnification-
                   Agreement Claim Against the Peyton Group.. . . . . . . . . . . . . . . . . . . 8

                   A.       The Peyton Group Unambiguously Promised to Indemnify
                            Upland and Cordillera for “Any Adverse
                            Consequence”—Including Future Lawsuits and Defense
                            Costs—“Arising From or in Connection with” APC’s
                            Lease-Termination Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                   B.       Continuing To Be Concerned About the Risks of APC’s
                            Lease-Termination Claims, Upland Settles the APC
                            Suit—But Only With an Agreement That All Existing
                            Overriding Royalty Interests in the Top Leases Be
                            Adjusted if the Aikman Leases’ Overriding-Royalty-
                            Interest Owners Ever Bring a Successful Claim Against
                            Upland.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                   C.       Precisely as the Parties Predicted, the 1986 Leases’
                            Overriding-Royalty-Interest Owners Sued Upland... . . . . . . . 14

                   D.       Under the Plain Meaning of the Upland Sales Contract and
                            Undisputed Facts, Plaintiffs’ Lawsuit Triggered the Peyton
                            Group’s Obligation to Indemnify Granite and Apache... . . . . 15

                            1.        The text of the sales agreement answers the
                                      question: as partial consideration for being paid
                                      $73,170,000.00, the Peyton Group agreed to
                                      indemnify Upland and Cordillera up to
                                      $5,400,000.00 for “any adverse consequence arising
                                      from or in connection with” APC’s lease-
                                      termination claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

                            2.        The Peyton Group’s arguments for evading its
                                      contractual indemnification obligation are without
                                      merit... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21


                                                             vi
         II.       The Trial Court Also Erred by Ordering Granite & Apache to Pay
                   the Peyton Group $220,396.00 in Trial and Appellate Attorneys’
                   Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

                   A.        The Peyton Group Is Not Entitled to Recover Attorneys’
                             Fees on Granite and Apache’s Breach-of-Indemnification-
                             Agreement Claim... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

                             1.        Because the trial court’s take-nothing judgment as to
                                       Granite and Apache’s breach-of-indemnification-
                                       agreement claim is in error, so too is its judgment
                                       awarding the Peyton Group attorneys’ fees for
                                       defending against the claim.. . . . . . . . . . . . . . . . . . . . . 26

                             2.        At minimum, the Peyton Group is not entitled to
                                       recover contingent appellate attorneys’ fees because
                                       there is no evidence to support the $43,500 award. . . . 27

                   B.        The Peyton Group Is Also Not Entitled to Recover
                             Attorneys’ Fees for Defending Against Granite and
                             Apache’s Unreached Alternative Claim for a Declaration
                             of Proportionate Royalty Reduction.. . . . . . . . . . . . . . . . . . . . 28

         III.      If This Court Reverses the Trial Court’s Judgment That Plaintiffs
                   Take Nothing on Their Claims Against Granite and Apache, Then
                   The Court Should Also Reverse the Trial Court’s Judgment That
                   Granite and Apache Take Nothing on Their Proportionate-
                   Royalty-Reduction Claim Against the Peyton Group and the PAC
                   Group.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39




                                                              vii
                                APPENDIX

App. A –   Final Judgment (3.CR.784-92)

App. B –   Upland Sales Agreement (2.CR.845-96)

App. C –   APC v. Upland Settlement Agreement (3.CR.426-31)




                                   viii
                                        TABLE OF AUTHORITIES

CASES

Bocquet v. Herring,
     972 S.W.2d 19 (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
     136 S.W.3d 227 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Cross Timbers Oil Co. v. Exxon Corp.,
      22 S.W.3d 24 (Tex. App.—Amarillo 2000, no pet.). . . . . . . . . . . . . . . . . . . 8

Cross v. Littlefield,
      No. 11-14-00224-CV, 2016 WL 6998981
      (Tex. App.—Eastland Nov. 30, 2016, no pet.) (mem. op.). . . . . . . . . . . . . 25

EOG Resources, Inc. v. Wagner & Brown, Ltd.,
    202 S.W.3d 338 (Tex. App.—Corpus Christi 2006,
    pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Fain & McGaha v. Biesel,
      331 S.W.2d 346 (Tex. Civ. App.—Fort Worth 1960,
      writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 22

FM Properties Operating Co. v. City of Austin,
     22 S.W.3d 868 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gipson-Jelks v. Gipson,
     468 S.W.3d 600 (Tex. App.—Houston [14th Dist.]
     2015, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Greenwood & Tyrrell v. Helm,
     264 S.W. 221 (Tex. Civ. App.—San Antonio 1924,
     writ ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Houston Expl. Co. v. Wellington Underwriting Agencies, Ltd.,
     352 S.W.3d 462 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 19


                                                          ix
In re Q.D.T.,
       No. 14-09-00696-CV, 2010 WL 4366125
       (Tex. App.—Houston [14th Dist.] 2010, no pet.)
       (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Intercontinental Group P’ship v. KB Home Lone Star L.P.,
      295 S.W.3d 650 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

J.M. Davidson, Inc. v. Webster,
      128 S.W.3d 223 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 16

Kachina Pipeline Co., Inc. v. Lillis,
     471 S.W.3d 445 (Tex. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

MBM Fin. Corp. v. Woodlands Operating Co., L.P.,
    292 S.W.3d 660 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Mid-Century Ins. Co. of Tex. v. Lindsey,
     997 S.W.2d 153 (Tex. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Moayedi v. Interstate 35/Chisam Rd., L.P.,
     438 S.W.3d 1 (Tex. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc.,
      473 S.W.3d 296 (Tex. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17, 19

Sentinel Integrity Solutions, Inc. v. Mistras Group, Inc.,
      414 S.W.3d 911 (Tex. App.—Houston [1st Dist.] 2013,
      pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Stoud Prod., L.L.C. v. Hosford,
      405 S.W.3d 794 (Tex. App.—Houston [1st Dist.] 2013,
      pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Terrell v. Munger Farm Co.,
      129 S.W.2d 407 (Tex. Civ. App.—Fort Worth 1939,
      writ dism’d judgm’t cor.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35



                                                           x
Universal C.I.T. Credit Corp. v. Daniel,
     150 Tex. 513, 243 S.W.2d 154 (1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Utica Nat’l Ins. Co. of Tex. v. Am. Indemnity Co.,
      141 S.W.3d 198 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Weaver v. Jamar,
     383 S.W.3d 805 (Tex. App.—Houston [14th Dist.]
     2012, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 22

Yzaguirre v. KCS Res., Inc.,
     53 S.W.3d 368 (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 22


STATUTES AND RULES

TEX. CIV. PRAC. & REM. CODE § 37.009.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TEX. R. CIV. P. 329b(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii


OTHER AUTHORITIES

11 RICHARD A. LORD,
      WILLISTON ON CONTRACTS (4th ed. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 9

BLACK’S LAW DICTIONARY (10th ed. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

BLACK’S LAW DICTIONARY (6th ed. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PATRICK H. MARTIN AND BRUCE M. KRAMER,
     WILLIAMS & MEYERS, OIL AND GAS LAW:
     MANUAL OF OIL AND GAS TERMS (16th ed. 2016). . . . . . . . . . . . . . . . . . . . . 2

WEBSTER’S II NEW COLLEGE DICTIONARY (1999). . . . . . . . . . . . . . . . . . . . . . . . . 17

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1988). . . . . . . . . . . . . . . . . . 17

WEBSTER’S THIRD NEW INT’L DICTIONARY (2002). . . . . . . . . . . . . . . . . . . . . . . . 17

                                                         xi
                          STATEMENT OF THE CASE

Nature of the Case:      This appeal is part of a larger dispute over oil-and-gas
                         royalty interests. This portion of the dispute relates to
                         Defendants Granite Operating Company and Apache
                         Corporation’s third-party breach-of-indemnification-
                         agreement claim, the trial court’s attorneys-fee award
                         against Granite and Apache, and, to the extent Plaintiffs
                         prevail on their separate appeal in this matter, Granite and
                         Apache’s contingent claim for a declaration of
                         proportionate royalty reduction.

Trial Court:             The Honorable Steve R. Emmert, 31st Judicial District
                         Court of Wheeler County, Texas.

Trial Court Disposition: The various parties filed competing motions for summary
                         judgment. 1.CR.390-405, 406-21; 2.CR.8-21, 22-68, 268-
                         302, 542-63, 648-69, 833-44, 927-36, 978-80; 3.CR.513-
                         16. The trial court denied Plaintiffs’ motion for summary
                         judgment and granted Granite and Apache’s motion for
                         summary judgment with respect to Plaintiffs’ claims.
                         3.CR.648, 775-77, 780. The trial court denied Granite and
                         Apache’s motion for summary judgment and granted the
                         Peyton Group’s motion for summary judgment with respect
                         to Granite and Apache’s third-party claims. 3.CR.779-80.
                         The trial court also denied Granite and Apache’s motion
                         for summary judgment and granted the PAC Group’s
                         motion for summary judgment with respect to Granite and
                         Apache’s third-party claims. 3.CR.779-80.

                         The trial court incorporated its summary judgment holdings
                         into a Final Judgment, which also ordered that Granite and
                         Apache pay the Peyton Group $220,396.00 in trial and
                         appellate attorneys’ fees. 3.CR.784-92 (App. A).

                         Apache and Granite requested findings of fact and
                         conclusions of law and filed a notice of past-due findings
                         of fact and conclusions of law. 3.CR.793-95, 913-16.
                         Plaintiffs filed a motion for reconsideration, 3.CR.796-811,

                                        xii
which was denied by operation of law, see TEX. R. CIV. P.
329b(c). No findings of fact or conclusions of law were
issued.




              xiii
                 STATEMENT REGARDING ORAL ARGUMENT

      Due to the complexity of both the facts and legal issues presented in this

appeal, Granite and Apache believe that oral argument would be beneficial to the

Court’s consideration of the matter and therefore respectfully request the opportunity

to present oral argument.




                                         xiv
                               ISSUES PRESENTED

1.   When the Peyton Group sold Upland (now Granite) to Cordillera (now owned
     by Apache) for $73,170,000.00, it promised to indemnify Upland and
     Cordillera for “any adverse consequence arising out of or in connection with”
     then-pending lease-termination claims in a lawsuit against Upland. Among the
     potential “adverse consequences” expressly contemplated by the parties at that
     time was a possible future lawsuit brought by Plaintiffs in this case, who own
     overriding royalty interests in the leases that were contested in the first lawsuit.
     Did the trial court err by holding that Plaintiffs’ fully anticipated lawsuit did
     not trigger the Peyton Group’s contractual indemnification obligation?

2.   The trial court ordered that Granite and Apache pay the Peyton Group
     $220,396.00 in trial court and contingent appellate attorneys’ fees for
     defending against two of Granite and Apache’s third-party claims.

     A.    Did the trial court err by ordering Granite and Apache to pay the Peyton
           Group $130,046.40 in trial-court attorneys’ fees and $43,500 in
           contingent appellate attorneys’ fees for defending against Granite and
           Apache’s breach-of-indemnification-agreement claim given that—as a
           matter of law—the Peyton Group is not the prevailing party on the
           contract claim?

     B.    Did the trial court err by ordering Granite and Apache to pay the Peyton
           Group $43,500.00 in contingent appellate attorneys’ fees given that the
           record is legally insufficient to support such fees?

     C.    Did the trial court err by ordering Granite and Apache to pay the Peyton
           Group $46,849.60 in attorneys’ fees for defending against Granite and
           Apache’s contingent declaratory judgment claim given that the claim’s
           express contingency—that Plaintiffs first prevail on their claims—never
           occurred?

3.   If (and only if) Plaintiffs prevail on appeal on their overriding-royalty-interest
     claim against Granite and Apache, did the trial court err by holding that
     Granite and Apache take nothing on their claims for a declaration of
     proportionate royalty reduction?



                                          xv
                              STATEMENT OF FACTS

      This appeal relates primarily to the Peyton Group’s breach of an

indemnification agreement it entered into as part of its $73,170,000.00 sale of Upland

Resources (which is now Granite) to Cordillera Energy Partners, LLC (which is now

part of Apache) in 2007. Defendants/Appellants Granite and Apache seek to reverse

those parts of the trial court’s judgment holding that (1) Granite and Apache take

nothing on their breach-of-indemnification-agreement claim against the Peyton

Group; and (2) Granite and Apache pay the Peyton Group $220,396.00 in attorneys’

fees. In addition, Granite and Apache conditionally appeal that part of the trial

court’s judgment holding that they take nothing on their claim against the Peyton

Group and the PAC Group for a declaration of proportionate royalty deduction. The

facts of this appeal are undisputed, albeit lengthy and dense.

The 1986 Leases: Aikman Oil Company leases the minerals, then sells the leases
while reserving an overriding royalty interest.

      In 1986, Aikman Oil Company leased the mineral rights associated with a

section of land in Wheeler County, Texas, 1.CR.1221-37, and soon thereafter

assigned the leases to Jay Haber. 1.CR.1245-50. The assignment of the leases

included a provision reserving to Aikman an overriding royalty interest,1.CR.1245,

and stating that if the leases are ever renewed or extended or a new lease of the same




                                          1
minerals is obtained in the future, the overriding royalty interest would “attach” to the

renewed, extended, or new lease. 1.CR.1246.1

       Years later, Upland acquired Aikman’s leases, 1.CR.1269-74, and Plaintiffs

acquired Aikman’s overriding royalty interests, 1.CR.17-18.

The 2007 Leases & the First Lawsuit: Amarillo Production Company buys top
leases of the minerals and sues Upland.

       In May 2007, Amarillo Production Company (“APC”) bought top leases of the

same Wheeler County acreage. 1.CR.1292-1341.2 Shortly thereafter, APC sued

Upland—alleging that the 1986 Aikman leases had terminated due to lapses in

production. 1.SuppCR.19-23. APC sought a declaration of superior title and

monetary damages. 1.SuppCR.22-23.

The Upland Sale & the Indemnification Agreement: Cordillera purchases
Upland from the Peyton Group, which indemnifies Cordillera and Upland
against “any adverse consequence arising from or in connection with” APC’s
lease-termination claims.

       While APC’s lawsuit was pending against Upland, Upland’s owner—the

Peyton Group—was in discussions to sell Upland to Cordillera. But the APC lawsuit


  1
    An overriding royalty interest is a royalty interest carved out of the leasehold estate and, absent
an express provision to the contrary, does not survive the lease’s termination. Fain & McGaha v.
Biesel, 331 S.W.2d 346, 348 (Tex. Civ. App.—Fort Worth 1960, writ ref’d n.r.e.). The provision
in the Aikman-to-Haber assignment that attempts to prevent the interest’s termination upon the
leases’ termination has been at times referred to as an “anti-washout” or “evergreen” clause.
  2
     A “top lease” is “[a] lease granted by a landowner during the existence of a recorded mineral
lease which is to become effective if and when the existing lease expires or is terminated.” PATRICK
H. MARTIN AND BRUCE M. KRAMER , WILLIAMS & MEYERS, OIL AND GAS LAW : MANUAL OF OIL
AND GAS TERMS at 1088 (16th ed. 2016).

                                                  2
(among others) stood as a potential impediment to the sale; so as partial consideration

for Upland’s $73,170,000.00 sales price, the Peyton Group agreed to indemnify

Upland and Cordillera for “any [a]dverse [c]onsequence arising from or in connection

with” all claims that APC asserted in its litigation against Upland:

      Sellers shall jointly and severally indemnify, defend and hold harmless
      Buyer and Upland and their respective Affiliates, directors, managers,
      officers, shareholders, employees, agents and representatives ... from ...
      any Adverse Consequence arising from or in connection with all
      pending or threatened claims or causes of action asserted against Upland
      in the litigation styled Amarillo Production Company v. Upland
      Resources, Inc.[,] Cause No. 12, 021, in the 31st District Court in and
      for Wheeler County, Texas (“the Byrd Well Litigation”), including any
      appeal of the Byrd Well Litigation[.]

2.CR.886 (App. B). In turn, the parties defined “adverse consequences” as any:

      actions, awards, suits, proceedings, hearings, investigations, charges,
      complaints, claims, demands, injunctions, judgments, orders, decrees,
      rulings, damages, dues, penalties, fines, costs, reasonable amounts paid
      in settlement, liabilities, obligations, taxes (including interest thereon),
      liens, losses, expenses, and fees, including court costs and reasonable
      attorneys’ fees and expenses.

2.CR.850.

      The parties also agreed that:

      •      the Peyton Group would pay up to $5,400,000.00 for any adverse
             consequence of “the [APC] Litigation,” 2.CR.888;

      •      Cordillera’s “right to enforce” the indemnification obligation included
             the right to withhold any royalties due to the Peyton Group’s affiliate,
             Peyton Oil and Gas, 2.CR.889; and,

      •      the Upland sale would close on November 1, 2007, 2.CR.858.

                                           3
The First Lawsuit’s Settlement: Bailey Peyton settles the APC lawsuit on behalf
of Upland—reserving overriding royalty interests in the top leases.

      On October 31, 2007, Bailey Peyton—as President of Upland—executed a

settlement of the APC-Upland lawsuit. 3.CR.431 (App. C). The parties agreed that:

      •     Upland would pay APC $320,000.00 and “release” the 1986 Aikman
            leases, 3.CR.428;

      •     APC would assign the 2007 top leases to Cordillera, 3.CR.428; and,

      •     APC would reserve, within its assignment of the top leases to Cordillera,
            a 5% overriding royalty interest in the top leases, 3.CR.428, and
            transfer, from the reserved 5% overriding royalty interest, a 2%
            overriding royalty interest to Upland or Peyton Oil & Gas, 3.CR.428-29.

      Finally, the parties agreed that if the 1986 leases’ overriding-royalty-interest

owners ever successfully brought a claim against Upland for an interest in the 2007

top leases, then APC and Upland’s own overriding royalty interests in the top leases

would be proportionately reduced:

      Proportionate Reduction of ORRI. Plaintiff [APC] agrees to assign to
      Defendant [Upland] a two percent ORRI in the Top Leases in question.
      The parties understand that ORRI owners under the prior lease will lose
      their interests. However, Plaintiff agrees that they will share on a
      proportionate basis any reduction in retained override if such owners
      make a claim and the prior ORRI owners recover any interest. The
      Parties understand that Defendant has a two percent ORRI and the
      Plaintiff will have a three percent ORRI, and that any reduction shall be
      shared on that basis. It is agreed, however, that Plaintiff and Defendant
      may jointly or separately defend any action brought by third parties for
      recovery of overrides under the prior lease or leases, and may jointly or
      separately settle or try any such cases. If either Defendant or Plaintiff
      separately settles or tries any such action, its override shall be reduced
      by the amount of override recovered, if any, by any such third party

                                          4
      without proportionate reduction. Only if the Plaintiff and Defendant
      both settle or try such an action and lose will their override be
      proportionately reduced.

3.CR.429.

      The same day, APC assigned the top leases to Granite (instead of Cordillera),

1.CR.1342-47, expressly reserving the 5% overriding royalty interest, 1.CR.1342.

As agreed, Upland released its interest in the 1986 Aikman leases. 1.CR.1289-91.

And later, the Peyton Group and the PAC Group acquired the combined 5%

overriding royalty interests in the top leases carved out in the APC-to-Granite

assignment. 1.CR.392.

The Current Lawsuit: The 1986 leases’ overriding-royalty-interest owners sued
Granite, and the Peyton Group declined to honor the indemnification agreement.

      On September 10, 2013, Plaintiffs (the current owners of the 1986 Aikman

leases’ overriding royalty interest) sued Granite (which Upland had been renamed)

and Apache (which owns Cordillera and the top leases)—claiming that because the

1986 leases terminated, their overriding royalty interest in the 1986 leases “attached”

to the 2007 top leases. 1.CR.12-32. Granite and Apache thereafter sent two letters

to the Peyton Group’s counsel requesting indemnification and a defense to Plaintiffs’

suit based on the settlement agreement’s indemnification clause. 2.CR.913-15.

      After the Peyton Group refused, 2.CR.916-17, Granite and Apache filed a

third-party claim against the Group for breach of the indemnification agreement,


                                          5
1.CR.371. Granite and Apache also brought contingent third-party claims against the

Peyton Group and the PAC Group for a declaration of a proportionate reduction in

their overriding royalty interests in the top leases “in the event” that the underlying

Plaintiffs were to prevail on their claims against Granite and Apache. 1.CR.372.

The Judgment: The trial court rejected Plaintiffs’ claims against Granite and
Apache and also Granite and Apache’s claims against the Peyton Group and the
PAC Group.

      All sides filed motions for summary judgment. 1.CR.390-405, 406-21;

2.CR.8-21, 22-68, 268-302, 542-63, 648-69, 833-44, 927-36, 978-80; 3.CR.513-16.

The trial court denied Plaintiffs’ motion for summary judgment and granted Granite

and Apache’s motion for summary judgment with respect to Plaintiffs’ royalty claims.

3.CR.648, 775-77, 780. The trial court denied Granite and Apache’s motion for

summary judgment and granted the Peyton Group’s motion for summary judgment

with respect to Granite and Apache’s third-party claims. 3.CR.779-80. And the trial

court denied Granite and Apache’s motion for summary judgment and granted the

PAC Group’s motion for summary judgment with respect to Granite and Apache’s

third-party claims. 3.CR.779-80.

      The trial court incorporated its summary judgment holdings into a final

judgment, which also ordered that Granite and Apache pay the Peyton Group

$220,396.00 in trial and appellate attorneys’ fees. 3.CR.784-92. Granite and Apache

now respectfully appeal part of the trial court’s judgment.

                                          6
                          SUMMARY OF THE ARGUMENT

      This is a multi-party appeal of the trial court’s judgment in a multi-issue oil-

and-gas dispute. This portion of the appeal relates primarily to the Peyton Group’s

failure to honor their contractual obligation to indemnify Upland, Cordillera, and their

affiliates for “any adverse consequence arising from or in connection with” lease-

termination claims in a lawsuit pending against Upland at the time the Peyton Group

sold Upland to Cordillera for $73,170,000.00. Because Plaintiffs’ royalty-interest

lawsuit against Granite (which Upland was renamed) and Apache (which acquired

Cordillera) in this case is an “adverse consequence” of the prior lease-termination

claims against Upland, Plaintiffs’ suit triggered the Peyton Group’s contractual

obligation to indemnify Granite and Apache as a matter of law. The trial court was

wrong to rule to the contrary.

      The trial court was also wrong to award the Peyton Group $220,396.00 in

attorneys’ fees from Granite and Apache. First, the Peyton Group is not the

“prevailing party” with respect to Granite and Apache’s breach-of-indemnification-

agreement claims and thus cannot recover prevailing-party fees. Second, the

evidence is legally insufficient to support an award of contingent appellate attorneys’

fees. Third, the trial court erred by awarding the Peyton Group fees for “defending”

against Granite and Apache’s contingent declaratory judgment claim that was never



                                           7
before the Court because its contingency (Plaintiffs first winning on their claims

against Granite and Apache) never occurred.

      And finally, if (and only if) this Court holds that Plaintiffs do prevail on their

overriding-royalty-interest claims against Granite and Apache, then the trial court’s

judgment that Granite and Apache take nothing on their claims for a declaration of

proportionate royalty reduction is also erroneous. The parties unambiguously agreed

that if Plaintiffs ever sued and prevailed, the others would proportionately share a

reduction in their own overriding royalty interests.

                                    ARGUMENT

I.    THE TRIAL COURT ERRED BY RENDERING JUDGMENT THAT GRANITE &
      APACHE TAKE NOTHING ON THEIR BREACH-OF-INDEMNIFICATION-
      AGREEMENT CLAIM AGAINST THE PEYTON GROUP.

      In Texas, a deal is a deal. Contracting parties are “masters of their own

choices,” Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.

App.—Amarillo 2000, no pet.), and courts will not modify a contract to give any

party the benefit of a bargain it did not make, Yzaguirre v. KCS Res., Inc., 53 S.W.3d

368, 374 (Tex. 2001). That’s why, in construing a contract, the “primary” duty of

courts is to give effect to “the true intentions of the parties as expressed in the

instrument.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)

(citations omitted). And courts “must examine and consider the entire writing in an

effort to harmonize and give effect to all the provisions of the contract so that none

                                           8
will be rendered meaningless.” J.M. Davidson, 128 S.W.3d at 229 (citing Universal

C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 158 (1951)).

      “[C]ourts must [also] enforce contract terms as written and may not rewrite

contracts or add to their language under the guise of interpretation.” Weaver v.

Jamar, 383 S.W.3d 805, 811 (Tex. App.—Houston [14th Dist.] 2012, no pet.). And

courts will construe contracts “as understood in light of the facts and circumstances

surrounding the contract’s execution.”         Houston Expl. Co. v. Wellington

Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011).                 “Those

circumstances include ... ‘the commercial or other setting in which the contract was

negotiated and other objectively determinable factors that give a context to the

transaction between the parties.” Id. (quoting 11 RICHARD A. LORD, WILLISTON ON

CONTRACTS § 32.7 (4th ed. 1999)). Finally, courts will “give words their plain,

common, or generally accepted meaning unless the contract shows that the parties

used words in a technical or different sense.” Plains Expl. & Prod. Co. v. Torch

Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015) (citing Moayedi v. Interstate

35/Chisam Rd., L.P., 438 S.W.3d 1, 7 (Tex. 2014)).

      In this case, the Peyton Group unambiguously agreed to indemnify Upland

(now Granite) and Cordillera (now owned by Apache) and any of their affiliates for

“any adverse consequence arising from or in connection with” APC’s previous claims

that the 1986 Aikman leases had terminated. The trial court incorrectly let the Peyton

                                          9
Group off the hook for that promise. On appeal as to decisions made on competing

motions for summary judgment, the duty of the appellate court is to “review both

sides’ summary judgment evidence,” “determine all questions presented,” and “render

the judgment that the trial court should have rendered.” FM Properties Operating

Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). As such, this Court should

reverse that part of the final judgment incorporating the grant of the Peyton Group’s

motion for summary judgment, reverse that part of the final judgment incorporating

the denial of Granite and Apache’s motion for summary judgment, and remand the

case to the trial court for a determination of Granite and Apache’s damages.3

       A.     The Peyton Group Unambiguously Promised to Indemnify Upland
              and Cordillera for “Any Adverse Consequence”—Including Future
              Lawsuits and Defense Costs—“Arising From or in Connection with”
              APC’s Lease-Termination Claims.

       It is undisputed that there were multiple lawsuits pending against Upland when

Cordillera and the Peyton Group were in discussions over the possible sale of Upland

to Cordillera in 2007. 2.CR.886. Among the pending lawsuits was APC’s suit,

2.CR.886, which alleged that the 1986 Aikman leases—then owned by Upland—had

terminated due to periods of nonproduction. 1.SuppCR.20-21. The fact that multiple

lawsuits were pending against Upland at the time was of clear relevance to Cordillera


  3
   Whether brought in the form of a traditional or no-evidence motion for summary judgment, the
Peyton Group’s motion is wrong for the same reasons: the undisputed summary judgment evidence
conclusively establishes that the Peyton Group breached its contractual obligation to indemnify
Granite and Apache against Plaintiffs’ overriding-royalty-interest claims. See infra Part I.A-D.

                                              10
(or any other prospective buyer, for that matter). But APC’s lease-termination claims

were of particular importance to the transaction—and not just because the claims

threatened Upland’s interest in the leases.

      APC’s claims also mattered because they put Upland at risk for being sued a

second time—by the 1986 leases’ overriding royalty interest owners, who would

likely claim that because the 1986 leases terminated, their overriding royalty interests

“attached” to any new lease of the same minerals. 1.CR.1246; 3.CR.429. Ordinarily,

an overriding royalty interest in a lease expires upon the lease’s termination. See

Fain & McGaha, 331 S.W.2d at 348; Stoud Prod., L.L.C. v. Hosford, 405 S.W.3d

794, 808 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). But the Aikman-to-

Haber assignment of the 1986 leases—which carved out the overriding royalty

interest—also included a clause designed to burden the leasehold interest not just as

to the leases actually conveyed but also any future leases of the minerals that did not

then exist. 1.CR.1246. That clause states:

      Should the Subject Leases or any one of the Subject Leases terminate
      and in the event Assignee obtains an extension, renewal or new lease or
      leases covering or affecting all or part of the mineral interest covered
      and affected by said lease or leases, then the overriding royalty interest
      reserved herein shall attach to said extension, renewal or new lease or
      leases....

1.CR.1246.




                                          11
      Because the clause purports to create an interest in a future lease that does not

and may never exist, it presents an obvious rule-against-perpetuities problem—as the

trial court in this case ultimately and correctly determined. 3.CR.775-77, 780. But

at the time of the Upland sale, the parties could not have known how a future court

might someday rule as to the provision’s validity. So as partial consideration for

Cordillera’s $73,170,000.00 million purchase of Upland, the Peyton Group expressly

indemnified Cordillera, Upland, and any of their affiliates for “any adverse

consequence arising from or in connection with” APC’s lease-termination claims:

      Sellers shall jointly and severally indemnify, defend and hold harmless
      Buyer and Upland and their respective Affiliates, directors, managers,
      officers, shareholders, employees, agents and representatives ... from ...
      any Adverse Consequence arising from or in connection with all
      pending or threatened claims or causes of action asserted against Upland
      in the litigation styled Amarillo Production Company v. Upland
      Resources, Inc.[,] Cause No. 12, 021, in the 31st District Court in and
      for Wheeler County, Texas (“the Byrd Well Litigation”), including any
      appeal of the Byrd Well Litigation[.]

2.CR.886. And the parties also agreed to expansively define the term “adverse

consequences” as:

      all actions, awards, suits, proceedings, hearings, investigations, charges,
      complaints, claims, demands, injunctions, judgments, orders, decrees,
      rulings, damages, dues, penalties, fines, costs, reasonable amounts paid
      in settlement, liabilities, obligations, taxes (including interest thereon),
      liens, losses, expenses, and fees, including court costs and reasonable
      attorneys’ fees and expenses.

2.CR.850.


                                          12
      This was no small commitment. In fact, it was so comprehensive that the

parties agreed to cap the Peyton Group’s indemnification exposure arising from

APC’s particular litigation at $5,400,000.00. 2.CR.888.

      B.     Continuing To Be Concerned About the Risks of APC’s Lease-
             Termination Claims, Upland Settles the APC Suit—But Only With
             an Agreement That All Existing Overriding Royalty Interests in the
             Top Leases Be Adjusted if the Aikman Leases’ Overriding-Royalty-
             Interest Owners Ever Bring a Successful Claim Against Upland.

      After the Peyton Group and Cordillera executed the Upland sales agreement

(but before the sale closed), Bailey Peyton (then President of Upland) executed a

settlement of the APC-Upland litigation. 3.CR.431. The Upland sale and APC’s

lease-termination claims were so intertwined that the lawsuit was ultimately settled

the day before the sale closed. 3.CR.431. It is no coincidence, then, that the Upland

sales contract reflects the parties’ understanding of the future risks presented to

Upland by APC’s lease-termination claims.

      To settle APC’s suit against Upland, Upland agreed to pay APC $320,000 and

to “release” the 1986 Aikman leases that APC claimed had already terminated.

3.CR.428. APC, in return, agreed to assign the 2007 top leases to Cordillera.

3.CR.428. APC and Upland further agreed that in the assignment of the top leases

from APC to Cordillera, APC would reserve a 5% overriding royalty interest—3%

for itself and 2% for Upland or Peyton Oil & Gas. 3.CR.428-29.



                                         13
      And there again, the parties expressed their full understanding that the

termination of the 1986 leases might attract a future lawsuit by the 1986 leases’

overriding-royalty-interest owners. Specifically, the parties agreed that they would

proportionately reduce their own overriding royalty interests in the top leases if the

1986 leases’ overriding-royalty-interest owners ever successfully sued Upland in the

future:

      Plaintiff agrees to assign to Defendant a two percent ORRI in the Top
      Leases in question. The parties understand that ORRI owners under the
      prior lease will lose their interests. However, Plaintiff agrees that they
      will share on a proportionate basis any reduction in retained override if
      such owners make a claim and the prior ORRI owners recover any
      interest. The Parties understand that Defendant has a two percent ORRI
      and the Plaintiff will have a three percent ORRI, and that any reduction
      shall be shared on that basis.

3.CR.429.

      C.      Precisely as the Parties Predicted, the 1986 Leases’ Overriding-
              Royalty-Interest Owners Sued Upland.

      Upland and Bailey Peyton were right to predict that the 1986 leases’

overriding-royalty-interest owners would eventually sue Upland to reclaim what they

believed was an entitlement to an overriding royalty interest in any lease of the same

minerals owned by Upland: in September 2013, the current owners of the 1986

leases’ overriding royalty interest (Plaintiffs here) sued Granite (which Upland had

been renamed) and Apache (which owns Cordillera and the 2007 top leases).

1.CR.12-32.

                                         14
      Plaintiffs assert that pursuant to the language of the Aikman-to-Haber

assignment of the 1986 leases, their overriding royalty interests in the 1986 leases

“attached” to the 2007 top leases after the 1986 leases terminated. 1.CR.12-32.

Defendants Granite and Apache thereafter sent two letters to the Peyton Group’s

counsel requesting that it honor the indemnification agreement in the Upland sales

contract. 2.CR.913-15. When the Peyton Group refused, 2.CR.916-17, Granite and

Apache filed a third-party claim against the Peyton Group for breach of the

indemnification agreement. 1.CR.371.

      D.     Under the Plain Meaning of the Upland Sales Contract and
             Undisputed Facts, Plaintiffs’ Lawsuit Triggered the Peyton Group’s
             Obligation to Indemnify Granite and Apache.

      The primary question presented in this appeal is this: did Plaintiffs’ lawsuit in

this case—which alleges that because the 1986 Aikman leases terminated, their

overriding royalty interest in the 1986 leases “attached” to the 2007 top

leases—trigger the Peyton Group’s contractual duty to indemnify Upland for “any

adverse consequence arising from or in connection with” APC’s lease-termination

claims? The answer to that question is “yes” because Plaintiffs’ lawsuit is the direct

consequence of APC’s lease-termination claims. Accordingly, that portion of the trial

court’s judgment holding that Granite and Apache take nothing on their breach-of-

indemnification-agreement claim against the Peyton Group is in error.



                                          15
             1.        The text of the sales agreement answers the question: as
                       partial consideration for being paid $73,170,000.00, the
                       Peyton Group agreed to indemnify Upland and Cordillera up
                       to $5,400,000.00 for “any adverse consequence arising from
                       or in connection with” APC’s lease-termination claims.

      The courts’ primary focus in any contract-construction dispute is the intent of

the parties as expressed in the words of the contract. See J.M. Davidson, 128 S.W.3d

at 229; see supra. The text of the indemnification agreement is undisputed and

unambiguous: the Peyton Group agreed to indemnify Upland and Cordillera for “any

[a]dverse [c]onsequence”—expressly including but not limited to future

lawsuits—“arising from or in connection with” APC’s lease-termination claims.

2.CR.886 (emphasis added). Because Plaintiffs’ claims in this lawsuit arose “from

or in connection with” APC’s lease-termination claims, the Peyton Group breached

the indemnification agreement by refusing to indemnify Granite and Apache against

Plaintiffs’ lawsuit.

      Again, we must start with the text: in the Upland sales agreement, the Peyton

Group agreed to “jointly and severally indemnify, defend and hold harmless

[Cordillera] and Upland and their respective Affiliates ... from ... any [a]dverse

[c]onsequence arising from or in connection with all pending or threatened claims or

causes of action asserted against Upland in the [APC] litigation.”          2.CR.886

(emphasis added). In turn, the agreement defines “[a]dverse [c]onsequences” as “all

actions,” “suits,” “proceedings,” “claims,” “liabilities,” “reasonable amounts paid in

                                          16
settlement,” “expenses, and fees, including court costs and reasonable attorneys’ fees

and expenses.” 2.CR.850.

      These words have unambiguous meaning. “The term ‘arise’ has broad meaning

and includes ‘to originate; to stem (from) ... [t]o result (from),’ and ... to come into

being ... [or] to come about.’” Plains Expl., 473 S.W.3d at 308 (quoting BLACK’S

LAW DICTIONARY 129 (10th ed. 2014) and WEBSTER’S THIRD NEW INT’L

DICTIONARY 117 (2002)). “Connection” means “the state of being [joined or linked

together],” “causal or logical relation or sequence,” “contextual relations or

associations,” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 278 (1988), or “[a]n

association or relationship,” WEBSTER’S II NEW COLLEGE DICTIONARY 239 (1999).

“Cause of action” means “[t]he fact or facts which give a person a right to judicial

redress or relief against another,” “[t]he legal effect of an occurrence in terms of

redress to a party to the occurrence,” or “[a] situation or state of facts which would

entitle a party to sustain action and give him right to seek a judicial remedy in his

behalf.” BLACK’S LAW DICTIONARY 221 (6th ed. 1990). And a “claim” means “[a]

demand,” a “basis for demanding,” “[a] statement of fact: assertion of truth,”

WEBSTER’S II NEW COLLEGE DICTIONARY 206 (1999), or “an assertion open to

challenge,” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 244 (1988). Thus, the

Court must decide whether Plaintiffs’ lawsuit against Granite and Apache

“originates” or “stems” from or is “linked to” or “causally or logically related to” the

                                          17
facts, occurrences, or legal effects of APC’s lease-termination claims in the prior

lawsuit against Upland. The answer is quite clearly “yes.”

      Indeed, the evidence is conclusive that there is a “but for” causal relationship

between APC’s lease-termination claims and Plaintiffs’ lawsuit. Simply put, had

APC not sued Upland alleging that the 1986 Aikman leases terminated for non-

production, Plaintiffs would not have sued Granite and Apache claiming that because

the 1986 leases terminated, their overriding royalty interests in the 1986 leases

“attached” to the 2007 top leases. That level of causal relationship has—in and of

itself—been held in some circumstances to meet an “arising out of” causal-nexus

requirement. See Utica Nat’l Ins. Co. of Tex. v. Am. Indemnity Co., 141 S.W.3d 198,

203 (Tex. 2004) (“This Court has held that ‘arise out of’ means that there is simply

a ‘causal connection or relation,’ which is interpreted to mean that there is but for

causation, though not necessarily direct or proximate causation.”) (quoting Mid-

Century Ins. Co. of Tex. v. Lindsey, 997 S.W.2d 153, 156 (Tex. 1999)).

      Moreover, the full text of the indemnification agreement indicates that the

parties did not intend to adopt a stricter-than-but-for causation standard. Specifically,

the parties agreed that “any adverse consequence” would be covered by the

indemnification agreement so long as it arose either “from or in connection with”

APC’s lease-termination claims. 2.CR.886 (emphasis added). The parties’ inclusion

of “in connection with” in addition to “arising from” in the agreement’s language

                                           18
reinforces that their intent was to adopt a comprehensive indemnification

obligation—not one narrowed by an unduly strict causal-nexis requirement. Id.; see

also Plains Expl., 473 S.W.3d at 308-09 (indicating that courts look to context of a

contract’s “arising under” requirement to determine the level of causal connection

required).

      But regardless, Plaintiffs’ lawsuit triggers the Peyton Group’s indemnification

obligation under any causal-relation test because Plaintiffs’ lawsuit is the direct,

logical, and fully predicted result of APC’s lease-termination claims. In the first

lawsuit, APC claimed that the 1986 leases terminated for non-production.

1.SuppCR.20-21. In the second lawsuit, Plaintiffs claim that because the 1986 leases

terminated (or were “released”), they now own an interest in the 2007 top leases.

1.CR.19, 23, 419. That sequence of causally linked events occurred precisely as the

Peyton Group and Upland expected and planned for; and they each expressly agreed

that if and when it occurred, the Peyton Group would be responsible up to

$5,400,000.00. 2.CR.886. A causal nexus—under any standard—was satisfied.

      The business context of the parties’ agreement also indicates that the parties

intended for Plaintiffs’ lawsuit to be covered under the indemnification agreement.

See Plains Expl., 473 S.W.3d at 305 (“facts and circumstances” surrounding the

execution of a contract may “aid in the construction of the contract’s language”);

Houston Expl., 352 S.W.3d at 469 (courts construe contracts “as understood in light

                                         19
of the facts and circumstances surrounding the contract’s execution”). At the time the

indemnification clause was written and executed, the parties knew that APC’s lease-

termination claims threatened Upland’s working interest in the 1986 leases; that was

the very substance of APC’s lawsuit. 1.SuppCR.19-23. But they also knew at the

time that APC’s lease-termination claims would likely result in Upland being sued

again later by the 1986 leases’ overriding-royalty-interest owners—i.e., Plaintiffs

here. 3.CR.429. Upland and Bailey Peyton (working on behalf of Upland at the time)

were so cognizant of this possibility that in the concurrent settlement of the APC-

Upland lawsuit, they insisted upon including a provision stating that the overriding

royalty interests in the 2007 top leases (as carved out in the settlement agreement)

would be proportionately reduced if the 1986 leases’ overriding-royalty-interest

owners ever successfully sued Upland for recognition that their interests “attached”

to the top leases. 3.CR.429. Indeed, given that Bailey Peyton and Upland—both

parties to the indemnification agreement—were so demonstrably mindful of the

prospect of a lawsuit from Plaintiffs that they expressly addressed it in the settlement

agreement, it would be preposterous to argue that they wouldn’t have considered such

a lawsuit to be an “adverse consequence arising from or in connection with” APC’s

claims.

      In short, the link between APC’s lease-termination claims and Plaintiffs’

lawsuit is direct and unequivocal. As a matter of law under the undisputed summary

                                          20
judgment facts, Plaintiffs’ lawsuit triggered the Peyton Group’s contractual

indemnification obligation because Plaintiffs’ suit “arose from or in connection with”

APC’s lease-termination claims. Accordingly, that portion of the trial court’s

judgment holding that Granite and Apache take nothing on their breach-of-

indemnification-agreement claim against the Peyton Group is in error and should be

reversed and remanded for determination of damages.4

              2.     The Peyton Group’s arguments for evading its contractual
                     indemnification obligation are without merit.

       In the trial court, the Peyton Group moved for traditional summary judgment

against Granite and Apache’s breach-of-indemnification-agreement claims.

1.CR.394-400. There, the Group made three arguments for evading contractual

indemnification: (1) that there is no identity of parties between APC’s lawsuit and

Plaintiffs’ lawsuit here, 1.CR.396 (“Neither Yowell nor any of the other plaintiffs in

the present suit were aware of or had any involvement in the [APC] litigation.”); (2)

that there is no identity of claims between APC’s lawsuit and Plaintiffs’ lawsuit here,

1.CR.397 (“There was no claim or cause of action related to the ORRI of the Yowell

plaintiffs in [the APC] suit.”); and (3) that Plaintiffs’ lawsuit arose from “the

settlement” of the APC-Upland lawsuit but not from APC’s “claims or causes of

action,” 1.CR.397. Each is without merit.

  4
    In deposition testimony, even Bailey Peyton agreed that Plaintiffs’ lawsuit was an “adverse
consequence,” 2.CR.908, at minimum creating a fact question.

                                              21
       The Peyton Group’s first two arguments—that Plaintiffs to this lawsuit were

not involved in the APC-Upland lawsuit and that Plaintiffs’ overriding-royalty

interests were not at issue in the APC-Upland lawsuit, 1.CR.396-97—are merely

attempts to add limitations to the indemnification agreement to which the parties

never agreed. There is nothing in the Upland sales agreement stating that if the

“adverse consequence” is a new lawsuit, the parties to the new lawsuit must be the

same as those in the APC lawsuit (nor that the parties to the new lawsuit be “aware

of” the APC lawsuit). 2.CR.845-96. Likewise, there is nothing in the Upland sales

agreement stating that if the “adverse consequence” is a new lawsuit, the claims and

causes of action advanced in the new lawsuit must mirror the claims and causes of

action in APC’s lawsuit.            2.CR.845-96.        Rather, the only limitation on the

indemnification obligation is that the “adverse consequence” must “arise from or in

connection with” APC’s claims and causes of action—which Plaintiffs’ claims plainly

do. See supra Part I.D.1. The Peyton Group’s arguments therefore improperly ask

this Court to judicially add restrictions to limit the Group’s unambiguous and

comprehensive contractual commitment; the Court should decline. See Yzaguirre, 53

S.W.3d at 374; Weaver, 383 S.W.3d at 811.5



  5
    In addition, although Plaintiffs’ overriding royalty interests may not have been presented as an
issue in APC’s lawsuit, the lawsuit nonetheless had a direct and unequivocal effect on their interests:
if APC was right that the leases terminated for cessation of production, then so too did Plaintiffs’
overriding royalty interests. See Fain & McGaha, 331 S.W.2d at 348.

                                                  22
       The Peyton Group’s third and final argument for avoiding the contractual

indemnification obligation—that Plaintiffs’ lawsuit arises from the “settlement” of

APC’s lawsuit but not from APC’s claims and causes of action, 1.CR.397—is

incorrect. As explained above, Plaintiffs’ lawsuit in this case (which alleges that their

overriding royalty interest attached to the 2007 top leases because the 1986 leases

terminated) arose directly from APC’s claims (which alleged that the 1986 Aikman

leases terminated due to cessation of production). See supra Part I.D.1. Although it

is true that the settlement of the APC-Upland lawsuit memorialized the 1986 leases’

termination, 3.CR.428, it was APC’s lawsuit that put at risk a judicial determination

that the leases had terminated, 1.SuppCR.19-23. The fact that Upland settled APC’s

lease-termination lawsuit by “releasing” the 1986 leases—rather than risking a

judicial determination of the same—does not exculpate the Peyton Group from its

comprehensive contractual obligation.6

       Moreover, the Peyton Group’s argument relies on a false premise. As

mentioned, the settlement agreement states that the Peyton Group will indemnify

Upland not only against future events “arising from” APC’s lease-termination claims,

but also for future events arising “in connection with” APC’s lease-termination

claims. 2.CR.886 (emphasis added). Having a mere “connection with” a prior event


  6
    Nor does it help the Peyton Group that the top leases were conveyed from APC to Upland in the
settlement. The legal question is whether Plaintiffs’ lawsuit “arose from or in connection with”
APC’s lease-termination claims—which it obviously did.

                                               23
is a low bar.     And the evidence conclusively demonstrates that Plaintiffs’

lawsuit—which alleges that they are owed royalties on the top leases because the

1986 leases terminated—arose “in connection with” APC’s claims that the 1986

leases terminated. See supra Part I.D.1.

      In short, all of APC’s claims against Upland—however styled—were founded

upon the allegation that the 1986 leases terminated. And all of Plaintiffs’ claims in

this case—however styled—were founded upon the allegation that the 1986 leases

terminated. As a matter of law, therefore, Plaintiffs’ lawsuit “arose from or in

connection with” APC’s lease-termination claims and thus triggered the Peyton

Group’s indemnification obligation. Accordingly, the trial court should have granted

Granite and Apache’s motion for summary judgment and denied the Peyton Group’s

motion for summary judgment with respect to the breach-of-indemnification-

agreement claim. The trial court’s final judgment incorporating the denial of Granite

and Upland’s motion for summary judgment on their breach-of-indemnification-

agreement claim and its grant of the Peyton Group’s motion for summary judgment

as to the claim was in error and should be reversed. In addition, judgment should be

rendered that the Peyton Group breached the agreement by declining to indemnify




                                           24
Granite and Apache, and the case should be remanded for a determination of Granite

and Apache’s resulting damages.7

II.    THE TRIAL COURT ALSO ERRED BY ORDERING GRANITE & APACHE TO
       PAY THE PEYTON GROUP $220,396.00 IN TRIAL AND APPELLATE
       ATTORNEYS’ FEES.

       After ruling on the parties’ summary judgment motions, the trial court held a

hearing on whether to order Granite and Apache to pay the Peyton Group an

attorneys-fee award for defending itself against Granite and Apache’s third-party

claims, 3.RR.1-39, and ultimately ordered that Granite and Apache pay the Peyton

Group a total of $220,396.00 in attorneys’ fees. 3.CR.790-92. For defending against

Granite and Apache’s breach-of-indemnification-agreement claim, the court awarded

the Peyton Group $130,046.40 for trial-court attorneys’ fees and another $43,500 in

contingent appellate attorneys’ fees. 3.CR.791-92. And for defending against

Granite and Apache’s claim for a declaration of proportionate royalty reduction, the

court awarded the Peyton Group another $46,849.60 in attorneys’ fees. 3.CR.792.

Each award is erroneous.

  7
    In a response brief filed in the trial court, the Peyton Group cursorily advanced an argument that
Granite and Apache didn’t provide proper “notice” of the Group’s indemnification obligation. See
3.CR.378. The Group’s first “notice” argument—that although it received notice through its attorney
of record, it should have received notice through a different attorney, see id.—is not serious. The
Group admits that it received notice and that’s the entire point of any notice provision. Its second
argument—that although it received notice, deposition testimony suggests that in general, a party
“could” be impaired by notice being delayed, 3.CR.379—lacks legal and factual authority. The
Group offered no evidence that it actually was impaired, and pure speculation is legally insufficient.
See Cross v. Littlefield, No. 11-14-00224-CV, 2016 WL 6998981, at *3 (Tex. App.—Eastland Nov.
30, 2016, no pet.) (mem. op.).

                                                 25
       A.      The Peyton Group Is Not Entitled to Recover Attorneys’ Fees on
               Granite and Apache’s Breach-of-Indemnification-Agreement Claim.

               1.      Because the trial court’s take-nothing judgment as to Granite
                       and Apache’s breach-of-indemnification-agreement claim is
                       in error, so too is its judgment awarding the Peyton Group
                       attorneys’ fees for defending against the claim.

       The Peyton Group asserted entitlement to recover attorneys’ fees for defending

against Granite and Apache’s breach-of-indemnification-agreement claim based on

the Upland sales contract’s “Legal Fees” provision, which states that “[t]he prevailing

party in any proceeding brought under or to enforce this Agreement shall be

additionally entitled to recover court costs and reasonable attorneys’ fees from the

non-prevailing party.” 2.CR.892. It is axiomatic that to be a “prevailing party” with

respect to a contract claim, the party must prevail on that contract claim.

Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653-54

(Tex. 2009). Because—as a matter of law—the Peyton Group is not entitled to

prevail on Granite and Apache’s breach-of-indemnification-agreement claim, see

supra Part I, the Group is also not entitled to recover attorneys’ fees from Granite and

Apache on the claim. Id.8

   8
       The trial court awarded the Peyton Group attorneys’ fees pursuant to the indemnification
agreement in the Upland sales contract. 3.CR.791. Any argument that the Group would alternatively
be entitled to attorneys’ fees for a declaration of rights under the indemnification agreement would
be wrong for two reasons: (1) as demonstrated in this brief, the Peyton Group is not the prevailing
party as to Granite and Apache’s claims relating to the indemnification agreement, see infra Part I;
and (2) a party may not recover attorneys’ fees under the Declaratory Judgment Act when the issue
is already before the court on a breach-of-contact claim, MBM Fin. Corp. v. Woodlands Operating
Co., L.P., 292 S.W.3d 660, 670 (Tex. 2009).

                                                26
             2.     At minimum, the Peyton Group is not entitled to recover
                    contingent appellate attorneys’ fees because there is no
                    evidence to support the $43,500 award.

      Unsupported and naked opinion or conclusory witness testimony is legally

insufficient to support an award of damages. Coastal Transp. Co. v. Crown Cent.

Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004). A request for attorneys’ fees

must be supported by an account of the services performed (or to be performed), who

performed them (or will perform them), and how much time the work required (or

will require). Sentinel Integrity Solutions, Inc. v. Mistras Group, Inc., 414 S.W.3d

911, 930 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). When an award of

attorneys’ fees is supported by legally insufficient evidence, the court of appeals may

render a take-nothing judgment as to such fees. See Gipson-Jelks v. Gipson, 468

S.W.3d 600, 606 (Tex. App.—Houston [14th Dist.] 2015, no pet.); In re Q.D.T., No.

14-09-00696-CV, 2010 WL 4366125, at *9-10 (Tex. App.—Houston [14th Dist.]

2010, no pet.) (mem. op.).

      The entirety of the Peyton Group’s “evidence” of contingent appellate

attorneys’ fees is the following four sentences from its counsel’s testimony:

      If there were an appeal to the Court of Appeals, it’s my opinion that
      $22,000 would be a reasonable fee for handling the case through the
      appeal. If there was a petition for review filed with the Supreme Court,
      it’s my opinion that an additional $7,500 would be a reasonable fee. If
      the Supreme Court ordered briefing on the merits, it’s my opinion that
      an additional $9,000 would be a reasonable fee. And if the Supreme
      Court ordered oral argument, my opinion is that the representation

                                          27
       through an oral argument and completion of proceedings in the Supreme
       Court of Texas would be an additional $5,000.00.

3.RR.13. That testimony is per se legally insufficient. It provides no account of the

services required, who might perform them, or how many hours would be necessary

to perform them. See Sentinel, 414 S.W.3d at 930. It is based on nothing more than

the ipse dixit of the witness and is thus legally insufficient to support the trial court’s

award. See Coastal, 136 S.W.3d at 232. Accordingly, Granite and Apache request

that the Court vacate the trial court’s appellate-attorneys-fee award and render

judgment that the Peyton Group take nothing on their request for contingent appellate

attorneys’ fees. See Gipson-Jelks, 468 S.W.3d at 606; In re Q.D.T., 2010 WL

4366125, at *9-10.

       B.     The Peyton Group Is Also Not Entitled to Recover Attorneys’ Fees
              for Defending Against Granite and Apache’s Unreached Alternative
              Claim for a Declaration of Proportionate Royalty Reduction.

       Granite and Apache also pleaded an alternative, contingent cause of action

against the Peyton Group—that “in the event that” Plaintiffs prevailed on their

royalty-interest claims, then Granite and Apache would be entitled to a declaration

that the PAC Group and the Peyton Group’s overriding royalty interests in the top

leases be proportionately reduced to account for Plaintiffs’ interest. 1.CR.372. This

alternative claim was based on the plain terms of the Upland-APC settlement

agreement, which both created overriding royalty interests (now owned by the PAC


                                            28
Group and the Peyton Group) in the APC top leases and mandated—in advance—that

the parties would “share on a proportionate basis any reduction in retained override

if [the 1986 overriding royalty interest] owners make a claim and ... recover any

interest.” 3.CR.429.

      To be clear, Granite and Apache have not asserted (and do not assert) that

Plaintiffs’ claims have merit. To the contrary, they vigorously contested Plaintiffs’

claims and ultimately prevailed in the trial court—which rendered judgment that

Plaintiffs take nothing.     3.CR.787-88.      Granite and Apache’s claims for a

proportionate royalty reduction were pleaded only upon the contingency that

Plaintiffs first prevailed on their claims against Granite and Apache—which didn’t

happen. Because that contingency didn’t happen, Granite and Apache’s declaratory

judgment claim for a proportionate royalty reduction never arose.

      In their pleadings, Granite and Apache made clear that their cause of action for

a declaration of proportionate royalty reduction was advanced only “in the event” that

Plaintiffs prevailed on their royalty claims against Granite and Apache. 1.CR.372

(“Defendants maintain that the [Plaintiffs’ overriding royalty interest] did not attach

to the 2007 Leases. However, in the event that it is determined that [their interests]

do attach....) (emphasis added); see also 3.RR.37 (“[W]e had a Breach of Contract

Action and in the alternative the Dec Action.”) (emphasis added). And in its granted



                                          29
summary judgment motion, the Peyton Group fully agreed—asserting that Granite

and Apache’s contingent claims for a proportionate royalty reduction never arose:

      •      Granite and Apache’s request for a “declaratory judgment on this issue
             is premature,” 1.CR.399;

      •      “[n]o controversy has yet arisen in this case as to any proportionate
             reduction in the [overriding royalty interest],” 1.CR.399; and

      •      “[t]he proportionate reduction obligation does not arise until the
             [overriding-royalty-interest] owners under the prior lease[s] (Plaintiffs
             in the present action) ... recover an interest,” 1.CR.400.

They were right. And because the contingency necessary for Granite and Apache’s

claims never occurred, the claims advanced based on that contingency were never

before the trial court. It was erroneous, therefore, for the trial court to award the

Peyton Group $46,849.60 for “defending” against the unreached claims.

      For a party to recover attorneys’ fees under the Uniform Declaratory Judgment

Act, the fees must be “equitable and just” under the circumstances. TEX. CIV. PRAC.

& REM. CODE § 37.009. Whether a fee is “equitable and just” is a matter of law, and

a trial court abuses its discretion in awarding attorneys’ fees under the Act if it rules

“arbitrarily, unreasonably, or without regard to guiding legal principles.” Bocquet v.

Herring, 972 S.W.2d 19, 20 (Tex. 1998). Because Granite and Apache’s declaratory

judgment claim for a proportionate royalty deduction did not present a controversy

between the parties—because the contingency never occurred—the trial court’s

attorneys-fee award of $46,849.60 to the Peyton Group for “defending” the unreached

                                           30
claim was arbitrary, unreasonable, and without regard to guiding legal principles. See

Bocquet, 972 S.W.2d at 20.

      The Peyton Group has never cited—and Granite and Apache have not

found—any authority for the position that a trial court may award a party attorneys’

fees for “defending” against a contingent claim that was never before the Court

because the contingency never occurred. The closest Texas case to those facts

affirmatively rejects an award of attorneys’ fees on a claim pleaded in the alternative

and thus never reached. See EOG Resources, Inc. v. Wagner & Brown, Ltd., 202

S.W.3d 338, 347-48 (Tex. App.—Corpus Christi 2006, pet. denied) (affirming denial

of attorneys’ fees for claim pleaded “as a separate and alternative cause of action”

that was “not before the trial court”).   Accordingly, that part of the trial court’s

judgment awarding the Peyton Group $46,849.60 for “defending” the unreached

contingent proportionate-royalty-reduction claim was erroneous and should be

reversed, and judgment should be rendered that the Group take nothing in attorneys’

fees related to Granite and Apache’s contingent claim.




                                          31
III.   IF THIS COURT REVERSES THE TRIAL COURT’S JUDGMENT THAT
       PLAINTIFFS TAKE NOTHING ON THEIR CLAIMS AGAINST GRANITE AND
       APACHE, THEN THE COURT SHOULD ALSO REVERSE THE TRIAL COURT’S
       JUDGMENT THAT GRANITE AND APACHE TAKE NOTHING ON THEIR
       PROPORTIONATE-ROYALTY-REDUCTION CLAIM AGAINST THE PEYTON
       GROUP AND THE PAC GROUP.

       The underlying Plaintiffs have separately appealed that part of the trial court’s

judgment holding that Plaintiffs take nothing on their overriding-royalty-interest

claims against Granite and Apache. 3.CR.787-88. The merits of those claims will be

addressed in separate briefing—with Granite and Apache as Appellees. Should

Plaintiffs prevail on appeal as to the merits of those royalty-interest claims against

Granite and Apache, then Granite and Apache’s contingent declaratory judgment

claim with respect to the parties’ relative royalty interests in the top leases would no

longer be contingent. If that happens, then Granite and Apache request that this

Court reach the merits of their claims for a declaration regarding proportionate-

royalty reduction, render judgment declaring that the PAC Group and the Peyton

Group’s overriding royalty interests in the 2007 top leases be proportionately reduced

as required by the settlement agreement, and remand the claim to the trial court for

a determination of the appropriate amount of the reduction in overriding royalty

interests.

       As previously discussed, the agreement settling the APC-Upland lawsuit:

       •     required Upland to “release” the 1986 Aikman leases and purchase
             APC’s 2007 top leases, 3.CR.428;

                                           32
•     recognized that the 1986 leases’ overriding-royalty-interest owners (the
      underlying Plaintiffs in this suit) would be negatively affected,
      3.CR.429;

•     required the creation of overriding-royalty interests in the top leases for
      Upland (whose interests are now owned by the Peyton Group) and APC
      (whose interests are now owned by the PAC Group), 3.CR.429;

•     speculated that the 1986 Aikman leases’ overriding-royalty-interest
      owners (the underlying Plaintiffs here) would sue Upland, 3.CR.429;
      and

•     agreed that if Plaintiffs sued Upland and prevailed, the overriding-
      royalty-interests created for Upland/Peyton Group and APC/PAC Group
      in the settlement agreement would be proportionately reduced,
      3.CR.429.

The proportionate-reduction clause of the settlement agreement states:

Plaintiff agrees to assign to Defendant a two percent ORRI in the Top
Leases in question. The parties understand that ORRI owners under the
prior lease will lose their interests. However, Plaintiff agrees that they
will share on a proportionate basis any reduction in retained override if
such owners make a claim and the prior ORRI owners recover any
interest. The Parties understand that Defendant has a two percent ORRI
and the Plaintiff will have a three percent ORRI, and that any reduction
shall be shared on that basis. It is agreed, however, that Plaintiff and
Defendant may jointly or separately defend any action brought by third
parties for recovery of overrides under the prior lease or leases, and may
jointly or separately settle or try any such cases. If either Defendant or
Plaintiff separately settles or tries any such action, its override shall be
reduced by the amount of override recovered, if any, by any such third
party without proportionate reduction. Only if the Plaintiff and
Defendant both settle or try such an action and lose will their override
be proportionately reduced.




                                    33
3.CR.429. The clause speaks for itself: if the 1986 leases’ overriding-royalty-interest

owners ever sue and prevail, then the 2007 leases’ overriding-royalty interests created

under the APC-Upland settlement agreement “will be proportionately reduced.”

3.CR.429. Based on this unambiguous provision, Granite and Apache pleaded in the

trial court that if (and only if) the underlying Plaintiffs prevail in their lawsuit against

Granite and Apache, then a declaration should be issued that the overriding-royalty

interests in the 2007 top leases be proportionately reduced. 1.CR.372.

       In the court below, the PAC Group agreed that Granite and Apache are correct

on this point. 2.CR.14 (conceding Granite and Apache are “entitled” to a “reduction

of the Third Party Defendants’ overriding royalty interests (referred to in the

Settlement Agreement as an ORRI) in the event the Plaintiffs recover an overriding

royalty interest under the [top leases]”); id. (noting that the third-party defendants

“agreed that if the Plaintiffs recovered an overriding royalty interest [in the top leases

from Granite and Apache], the Third Party Defendants would contribute a part of

their overriding royalty interest [in the top leases] to make up the ORRI recovered by

Plaintiffs.”).

       The Peyton Group, however, disagreed. The Group’s primary argument is that

the claim is not yet ripe because the underlying Plaintiffs have not yet prevailed on

their claims against Granite and Apache. 1.CR.399-400. But that, of course, will no

longer be the case if the Plaintiffs prevail on appeal, and Granite and Apache advance

                                            34
this appellate issue only upon the contingency of Plaintiffs first prevailing on their

royalty claims.

       The Peyton Group’s only other argument against the proportionate-royalty-

reduction claim is that the provision placed the proportionate-reduction obligation

upon “Plaintiff and Defendant”—i.e., the parties to the Upland-APC settlement

agreement—and not the Peyton Group. 1.CR.400. But the Peyton Group is

undisputedly the present owner of the overriding-royalty interest carved out for

Upland (which was operated by Bailey Peyton at the time and is the primary

Defendant sued here). As a matter of long-settled and conclusive Texas law, when

a contract places an obligation upon a party to the contract, an assignee of the party’s

interest steps into the shoes of the assignor as to all rights and obligations. E.g.,

Terrell v. Munger Farm Co., 129 S.W.2d 407, 408 (Tex. Civ. App.—Fort Worth

1939, writ dism’d judgm’t cor.); Greenwood & Tyrrell v. Helm, 264 S.W. 221, 222

(Tex. Civ. App.—San Antonio 1924, writ ref’d). And in any event, Upland (now

Granite)—whose overriding royalty interest the Peyton Group owns—was a party to

the settlement agreement and is a party to the lawsuit. The Group’s argument is thus

without logical or legal basis.9



 9
    In addition, if the Court reaches and rules in favor of Granite and Apache on their proportionate-
royalty-reduction claims, that would be another reason that the Peyton Group would not be a
prevailing party for purposes of those claims and thus should not obtain attorneys’ fees as to the
claims. See Kachina Pipeline Co., Inc. v. Lillis, 471 S.W.3d 445, 455 (Tex. 2015).

                                                 35
                                       PRAYER

      For all of these reasons, Appellants Granite Operating Company and Apache

Corporation respectfully request that this Court:

      •      reverse that portion of the trial court’s judgment holding that Granite
             and Apache take nothing on their breach-of-indemnification-agreement
             claim, render judgment that the Peyton Group is obligated to indemnify
             Granite and Apache, and remand this case for determination of Granite
             and Apache’s damages; and

      •      reverse that portion of the trial court’s judgment ordering that Granite
             and Apache pay $220,396.00 in attorneys’ fees and render judgment that
             the Peyton Group take nothing on their attorneys’ fees claims against
             Granite and Apache.

In addition, if (and only if) the Court reverses the trial court’s award that Plaintiffs

take nothing on their claims against Granite and Apache, then Granite and Apache

respectfully request that the Court reverse the trial court’s judgment that Granite and

Apache take nothing on their proportionate-royalty-reduction claims and remand for

determination of the appropriate proportionate royalty reduction.




                                          36
Respectfully submitted,


/s/ Ryan Clinton
Ryan Clinton
State Bar No. 24027934
rdclinton@dgclaw.com
DAVIS, GERALD & CREMER, P.C.
600 Congress Ave., Suite 3100
Austin, Texas 78701
(512) 493-9600
Fax: (512) 493-9625

John A. “Jad” Davis
State Bar No. 05511400
jadavis@dgclaw.com
DAVIS, GERALD & CREMER, P.C.
400 W. Illinois, Ste. 1400
Midland, Texas 79701
(432) 687-0011
Fax: (432) 687-1735

ATTORNEYS FOR APPELLANTS
GRANITE OPERATING COMPANY AND
APACHE CORPORATION




  37
                             CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this brief was sent on August 2,
2017, to the following persons:

VIA EFSP & EMAIL                               VIA EFSP & EMAIL
Joe W. Hayes                                   Thomas A. Zabel
joe@tshhr.com                                  tzabel@zflawfirm.com
John Smithee                                   John Smither
john@tshhr.com                                 jsmither@zflawfirm.com
Templeton, Smithee, Hayes,                     Nancy H. Elliott
  Heinrich & Russell, L.L.P.                   nelliott@zflawfirm.com
320 S. Polk, Suite 1000                        Zabel Freeman
Amarillo, TX 79101                             1135 Heights Blvd.
                                               Houston, TX 77008
VIA EFSP & EMAIL
Thomas C. Riney
triney@rineymayfield.com
Joni Kleinschmidt
jkleinschmidt@rineymayfield.com
Kerri L. Stampes
kstampes@rineymayfield.com
Riney & Mayfield LLP
320 S. Polk Street, Suite 600
Amarillo, TX 79101




                                         /s/ Ryan Clinton
                                        Ryan Clinton




                                          38
                           CERTIFICATE OF COMPLIANCE

       Relying on the word count function in the word processing software used to
produce this document (WordPerfect X3), I certify that the number of words in this
brief (excluding any caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement of
issues presented, statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix) is 8,756 and
that the text of the document is in 14-pt. font. The text of all footnotes is 12-pt.font.



                                         /s/ Ryan Clinton
                                         Ryan Clinton




                                           39
                          IN THE 31ST JUDICIAL DISTRICT COURT         FILED FOR RECORD
                          IN AND FOR WHEELER COUNTY, TEXAS
                                                                  2017 JAN 13 AH 9: 25
TOMMY YOWELL; GAIL YOWELL;                  §
HARRY GRAFF; EL TERCIO, LLC; and            §
CASUARINA INVESTMENTS, LLC                  §
(d/b/a LAR RESOURCES, LLC),                 §
                                            §
                Plaintiffs and              §
                Cross-Defendants,           §
                                            §
vs.                                         §
                                            §
GRANITE OPERATING COMPANY                   §
and APACHE CORPORATION,                     §
                                            §
                Defendants, Third-Party     §
                Plaintiffs, and Counter-    §
                Defendants,                 §
                                            §
vs.                                         §            NO. 12,944
                                            §
PEYTON ROYAL TIES, L.P .; BAILEY            §
PEYTON, INDIVIDUALLY AND AS                 §
TRUSTEE OF THE GEORGE BAILEY                §
PEYTON, IV 2007 GRANTOR RETAINED            §
ANNUITY TRUST NO. 1; and PEYTON             §
HOLDINGS CORPORATION,                       §
                                            §
                Third-Party Defendants,     §
                                            §
and                                         §
                                            §
PAC PRODUCTION COMPANY;                     §
MESA OIL & GAS CORPORATION;                 §
and CATTALO, LTD.,                          §
                                            §
                Third-Party Defendants,     §
                CrossPlaintiffs, and        §
                Counter-Plaintiffs          §




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                                           784

                                                      APPENDIX A - Page 1
                                             FINAL JUDGMENT

                                                   Background

On the 10th day of August, 2016, there came on to be heard the following motions:

         1. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS'
            OVERRIDE CLAIM (brought by Granite Operating Company and Apache
            Corporation against Plaintiffs Tommy Yowell, Gail Yowell, Harry Graff, El Tercio,
            LLC and Casuarina Investments, LLC d/b/a LAR Resources, LLC).

        2. THIRD PARTY DEFENDANTS' SECOND MOTION FOR SUMMARY
           JUDGMENT AGAINST THE CLAIMS OF PLAINTIFFS WITH SUPPORTING
           AUTHORITY (brought by Third Party Defendants PAC Production Company (PAC),
           Cattalo, Ltd. (Cattalo), and Mesa Oil & Gas, Inc. (Mesa) against Plaintiffs Tommy
           Yowell, Gail Yowell, Harry Graff, El Tercio, LLC and Casuarina Investments, LLC
           d/b/a LAR Resources, LLC).

        3. THIRD PARTY DEFENDANTS' SECOND AMENDED MOTION FOR
           SUMMARY JUDGMENT AGAINST THE CLAIMS OF DEFENDANTS WITH
           SUPPORTING AUTHORITY (brought by Third Party Defendants PAC Production
           Company (PAC), Cattalo, Ltd. (Cattalo), and Mesa Oil & Gas, Inc. (Mesa) against
           Granite Operating Company and Apache Corporation).

        4. TRADITIONAL AND NO-EVIDENCE MOTIONS FOR SUMMARY
           JUDGMENT, AND FIRST SUPPLEMENT THERETO, OF THIRD PARTY
           DEFENDANTS PEYTON ROYALTIES, L.P., BAILEY PEYTON,
           INDIVIDUALLY AND AS TRUSTEE OF THE GEORGE BAILEY PEYTON,
           IV 2007 GRANTOR RETAINED ANNUITY TRUST NO. 1 AND PEYTON
           HOLDINGS CORPORATION (Brought by Third Party Defendants Peyton
           Royalties, L.P., Bailey Peyton, Individually and as Trustee of the George Bailey
           Peyton, IV 2007 Grantor Retained Annuity Trust No, 1 and Peyton Holdings
           Corporation (collectively, the Peytons) against Granite Operating Company and
           Apache Corporation). 1

         5. PLAINTIFFS' FIRST AMENDED MOTION FOR PARTIAL SUMMARY
            JUDGMENT (brought by Tommy Yowell, Gail Yowell, Harry Graff, El Tercio, LLC
            and Casuarina Investments, LLC d/b/a LAR Resources, LLC against Defendants
            Granite Operating Company and Apache Corporation).

         6. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AGAINST
            CERTAIN THIRD PARTY DEFENDANTS (brought by Granite Operating
            Company and Apache Corporation against Third Party Defendants PAC Production


1 By order of November 12, 2015, all claims of these third party defendants, except for their claims for attorney's

fees, were dismissed.

Final Judgment - Page 2                                                                                       140575vl




                                                       785

                                                                             APPENDIX A - Page 2
            Company (PAC), Cattalo, Ltd. (Cattalo ), Mesa Oil & Gas, Inc. (Mesa), and Peyton
            Royalties, LP).

       7. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AGAINST THIRD
          PARTY DEFENDANTS BAILEY PEYTON, INDIVIDUALLY AND AS
          TRUSTEE OF THE GEORGE BAILEY PEYTON, IV 2007 GRANTOR
          RETAINED ANNUITY TRUST NO. 1 (Defendants' Indemnity Motion), (brought
          by Granite Operating Company and Apache Corporation against Third Party Defendant
          Bailey Peyton, Individually and as Trustee of the George Bailey Peyton IV 2007
          Grantor Retained Annuity Trust No. 1).

       8. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AGAINST
          CERTAIN THIRD PARTY DEFENDANTS (Defendants' Proportionate Reduction
          Motion), (brought by Granite Operating Company and Apache Corporation against
          Third Party Defendant Bailey Peyton, Individually and as Trustee of the George Bailey
          Peyton IV 2007 Grantor Retained Annuity Trust No. 1).

       Third Party Defendants have withdrawn their MOTION FOR SUMMARY

JUDGMENT AGAINST THE CLAIMS OF PLAINTIFFS WITH SUPPORTING

AUTHORITY and submitted their THIRD PARTY DEFENDANTS' SECOND MOTION

FOR SUMMARY JUDGMENT AGAINST THE CLAIMS OF PLAINTIFFS WITH

SUPPORTING AUTHORITY.

       It is STIPULATED BY THE PARTIES that THIRD PARTY DEFENDANTS'

RESPONSE TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

insofar as it pertains to Plaintiffs' "Ground No. 7: During the period of November 1, 2009 to

April 15, 2015, the ownership of the 1986 Override was owned by the Plaintiffs in the following

proportions: (a) T. Yowell-1/6; (b) Gail Yowell-1/6; (c) Harry Graff-113; (d) El Tercio, LLC-1/4;

and (e) Casuarina Investments, LLC-1/12." shall be interpreted to read: "This ground is not

contested as to the claimed proportions only."

        After considering the motions, the responses, and the summary judgment evidence, on

August 10, 2016, the Court entered its order on motions for summary judgment.




Final Judgment - Page 3                                                                   140575vl




                                             786

                                                              APPENDIX A - Page 3
        Following the entry of the August 10 order, the following motions were filed:

        1. PLAINTIFFS' MOTION FOR RECONSIDERATION, OR ALTERNATIVELY,
           FOR MODIFICATION OF FINAL JUDGMENT.

        2. DEFENDANTS' MOTION FOR NEW TRIAL

        3. MOTION TO MODIFY JUDGMENT OF THIRD PARTY DEFENDANTS
           PEYTON ROY ALTIES, L.P.; BAILEY PEYTON, INDIVIDUALLY AND AS
           TRUSTEE OF THE GEORGE BAILEY PEYTON, IV 2007 GRANTOR
           RETAINED ANNUITY TRUST NO. 1; AND PEYTON HOLDINGS
           CORPORATION.


         On the 20th day of October, 2016, the Court held a hearing on the foregoing motions.

After considering the motions, the responses, the authorities, and the arguments of counsel, the

Court denied the Plaintiffs' Motion for Reconsideration but found its Order dated August 10, 2016

should be modified. The Court entered an interlocutory Order to that effect on October 20, 2016.

By a separate order also dated October 20th, this Court severed (a) the Higgins claim and (b) the

Zybach claim (as defined below) into Cause No. 13,392. The Court entered an order on October

26th denying the Defendants' Motion for New Trial.

        In accordance with its prior orders, IT IS ACCORDINGLY ORDERED, ADJUDGED,

and DECREED and Judgment is rendered in the following respects:

        1. Defendants' Motion for Summary Judgment on Plaintiffs' Override Claim is granted,

            except as to Plaintiffs' claims against Defendant, Granite Operating Company, relating

            to: (a) the recovery of Plaintiffs' overriding royalty percentage of the proceeds from

            the production of oil and gas from Section 42, Block A-3, H&GN RR Co. Survey in

            Wheeler County, Texas, under that Oil and Gas Lease recorded at Vol. 353 and Page

            732, et. seq. of the Official Public Records of Wheeler County, Texas, but only to the

            extent that said claims cover the 1/36 undivided interest of Jim Tom Higgins in the E/2

            of section 42, Block A-3, H&GN RR Co. Survey in Wheeler County, Texas, during the

Final Judgment - Page 4                                                                     140575vl




                                              787

                                                                APPENDIX A - Page 4
           period November 1, 2009 to July 12, 2011 (the Higgins claim); and (b) the recovery

           of Plaintiffs' overriding royalty percentage of the proceeds from the production of oil

           and gas produced from Section 42, Block A-3, H&GN RR Co. Survey in Wheeler

           County, Texas, under those Oil and Gas Leases recorded at Vol. 353 and Page 723, et.

           seq.; Vol. 353 and Page 732, et. seq.; Vol. 353 and Page 726 et. seq.; and Vol. 353 and

           Page 729 et. seq. of the Official Public Records of Wheeler County, Texas, but only to

           the extent that said claims cover the 2% interest owned in said leases by Wayne Zybach

           during the period of November 1, 2009 to November 23, 2011 (the Zybach claim).

           Defendants' Motion for Summary Judgment On Plaintiffs' Override Claim is

           specifically denied as to (a) the Higgins claim and (b) the Zybach claim.

       2. Third Party Defendants' Second Motion for Summary Judgment Against The Claims

            of Plaintiffs With Supporting Authority is granted and Declaratory Judgment is

            entered that Plaintiffs take nothing by their claims against Defendants, except as to the

            Plaintiffs' claims against Defendant, Granite Operating Company, relating to (a) the

            Higgins claim and (b) the Zybach claim.

       3. Third Party Defendants' Second Amended Motion for Summary Judgment Against the

            Claims of Defendants with Supporting Authority is granted.

        4. The Traditional and No Evidence Motions for Summary Judgment, and First

            Supplement thereto, of Third Party Defendants Peyton Royalties, L.P.; Bailey Peyton,

            Individually and as Trustee of the George Bailey Peyton, IV 2007 Grantor Retained

            Annuity Trust No. 1; and Peyton Holdings Corporation are granted.

        5. The following motions are denied:

                a. Plaintiffs' First Amended Motion for Partial Summary Judgment;



Final Judgment - Page 5                                                                       140575vl




                                               788

                                                                 APPENDIX A - Page 5
                b. Defendants' Motion for Summary Judgment Against Certain Third Party

                    Defendants

                c. Defendants' Motion for Summary Judgment Against Certain Third Party

                    Defendants (Defendants' Proportionate Reduction Motion).

                d. Defendants' Motion for Summary Judgment Against Third Party Defendants

                    Bailey Peyton, Individually and as Trustee of the George Bailey Peyton, IV

                    2007 Grantor Retained Annuity Trust No. 1 (Defendants' Indemnity Motion);

                    and

                e. All claims for recovery of attorney's fees except the claims of Third Party

                    Defendants Peyton Royalties, LP; Bailey Peyton, Individually and as Trustee

                    of the George Bailey Peyton, IV 2007 Grantor Retained Annuity Trust No. 1;

                    and Peyton Holdings Corporation against Defendants Granite Operating

                    Company and Apache Corporation, which are addressed subsequently.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that:

        6. Plaintiffs Tommy Yowell, Gail Yowell, Harry Graff, El Tercio, LLC and Casuarina

             Investments, LLC (d/b/a LAR Resources, LLC) take nothing on the claims remaining

             in this cause against Defendants Granite Operating Company and Apache Corporation.

        7.   Defendants Granite Operating Company and Apache Corporation take nothing on their

             claims against Third Party Defendants PAC Production Company, Cattalo, Ltd., and

             Mesa Oil & Gas, Inc.

        8. Defendants Granite Operating Company and Apache Corporation take nothing on their

             claims against Third Party Defendants Peyton Royalties, L.P.; Bailey Peyton,




Final Judgment - Page 6                                                                  140575vl




                                             789

                                                              APPENDIX A - Page 6
            Individually and as Trustee of the George Bailey Peyton, IV 2007 Grantor Retained

            Annuity Trust No. 1; and Peyton Holdings Corporation.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that:

        9. Within sixty (60) days from December 20, 2016, Granite Operating Company and

            Apache Corporation shall pay to Peyton Royalties, L.P., PAC Production Company,

            Mesa Oil & Gas Corporation, and Cattalo, LTD all suspended overriding royalty

            interest payments under the 2007 leases on Section 42, Block A-3, H&GN RR Co.

            Survey in Wheeler County, Texas, as described in the pleadings of this case, and the

            assignment of oil and gas leases from Amarillo Production Company to Granite

            Operating Company of October 31, 2007 recorded in the county records of Wheeler

            County, Texas at Vol. 574, Page 89, that have not heretofore been paid, and that Granite

            Operating Company and Apache Corporation provide an accounting of all overriding

            royalty interest payments which accrued to Peyton Royalties, L.P., PAC Production

            Company, Mesa Oil & Gas Corporation, and Cattalo, LTD during the period of

            suspense.

                                         Attorney's Fees

        On the 21st day of December, 2016, there came on to be heard the claim for attorney's fees

of Third Party Defendants Peyton Royalties, L.P. ("Peyton Royalties"), Bailey Peyton,

Individually and as Trustee of the George Bailey Peyton, IV 2007 Grantor Retained Annuity Trust

No. 1 ("Peyton"), and Peyton Holdings Corporation ("Peyton Holdings'), from Granite Operating

Company ("Granite") and Apache Corporation ("Apache"), as set forth in the Third Amended

Original Answer and Counterclaim of Third Party Defendants, Peyton Royalties, L.P., Bailey

Peyton, Individually and as Trustee of the George Bailey Peyton, IV 2007 Grantor Retained



Final Judgment - Page 7                                                                      l40575vl




                                               790

                                                                 APPENDIX A - Page 7
Annuity Trust No. 1, and Peyton Holdings Corporation against Granite Operating Company and

Apache Corporation.

       The Peyton parties appeared in person and by their attorney of record, and Apache and

Granite appeared by their attorney of record, and all parties announced ready for trial. No jury

having been demanded, all questions of fact were submitted to the court.

       Under the Order of August 10, 2016, as modified by the Order of October 20, 2016, Peyton

and Peyton Holdings are prevailing parties on the claims asserted against them by Granite and

Apache under the Stock Purchase and Sale Agreement of September 12, 2007, and on the claim

for declaratory judgment regarding the indemnity issue under that Agreement asserted against

them by Granite and Apache, and are therefore entitled to recover reasonable attorney's fees and

court costs under Section 12.14 of the Agreement from Granite and Apache.

       The court, after hearing evidence and arguments of counsel, is of the opinion that Peyton

and Peyton Holdings are entitled to recover reasonable attorney's fees and court costs from Granite

and Apache as set forth below.      The court finds the amount of these attorney's fees to be

reasonable. It is therefore ORDERED, ADJUDGED, and DECREED that Peyton and Peyton

Holdings recover from Granite and Apache, as follows:

        1. $130,046.40 for attorney's fees for services rendered through the trial of this case;

        2. the additional sum of $22,000.00 if Granite or Apache unsuccessfully appeals this

            judgment to the Court of Appeals;

        3. the additional sum of $7,500.00 if a petition for review is filed but not granted by the

            Texas Supreme Court;

        4. the additional sum of $9,000.00 if briefing on the merits is ordered in the Texas

            Supreme Court but the petition to review is not granted; and



Final Judgment - Page 8                                                                      140575vl




                                                791

                                                                 APPENDIX A - Page 8
       5. the additional sum of 5,000.00 for the completion of proceedings in the Texas Supreme

           Court if the appeal is unsuccessful.

       The court further finds that it may award reasonable attorney's fees and court costs as are

equitable and just to Peyton Royalties and Peyton Holdings in connection with the declaratory

judgment asserted against them by Granite and Apache regarding the alleged liability for

proportionate reduction. It is therefore ORDERED, ADJUDGED, and DECREED that Peyton

Holdings and Peyton Royalties recover from Granite and Apache the sum of $46,849.60 for

services rendered through the trial of this case. The court finds this amount to be reasonable, fair

and equitable.

       It is further ORDERED, ADJUDGED, and DECREED that Peyton, Peyton Holdings, and

Peyton Royalties recover their court costs from Granite and Apache.

       All writs and processes in the enforcement and collection of this judgment or the costs the

court may issue as necessary.

       It is further ORDERED, ADJUDGED, and DECREED that the total amount of the

judgment will bear interest at the rate of 5 percent per annum from date of judgment until paid.

       All relief requested in this case by any party and not expressly granted herein is denied.

This judgment finally disp7 of all parties and claims and is appealable.

        SIGNEDthis£dayo                  ~~          2017.




                                                             JUDGE PRESIDING




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                                              792

                                                                 APPENDIX A - Page 9
                                    EXHIBIT A
                                                                     Execution Venion




                         STOCK PURCHASE AND SALE AGREEMENT

                                       by and among

                         BAILEY PEYTON
GEORGE BAILEY PEYTON IV 2007 GRANTOR RETAINED ANNUITY TRUST NO. 1

                                         "Sellen"


                                 UPLAND RESOURCES, INC.

                                        "Company"


                                            and

                          CORDILLERA ENERGY PARTNERS Ill, LLC

                                          "Buyer"


                                  Dated September 12, 2007




                                                      CONFIDENTIAL    APACHE001130
512.819000002 HOUSTON S43S24.S




                                            845

                                                             APPENDIX B - Page 1
I
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.1
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            CONFIDENTIAL   APACHE001131

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      846

                  APPENDIX B - Page 2
I                                                                                                              Execution Venion

I                                                   TABLE OF CONTENTS


I
    ARTICLE 1 DEFINITIONS ........................................................................................................... 1

I        Section 1.01
         Section 1.02
                       Defined Terms........................................................................................ 1
                       References and Titles............................................................................. 8
    ARTICLE 2 PURCHASE AND SALE, ......................................................................................... 8

I        Section 2.01
         Section 2.02
         Section 2.03
                      Purchase and Sale of Upland Common Stock. ....................................... 8
                      Adjustm.ents to Purchase Price............................................................... 8
                      The Closing...................................................................... :..................... 9

I   ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF UPLAND AND SELLERS ....... 9
          Section 3.01
          Section 3.02
                         Organization. ...................................................... ".................................. 9
                         Subsidiaries..........:............................................................................... 10
          Section 3.03   Authority and Enforceability................................................................ 10
I         Section 3.04
          Section 3.05
                         No Violations....................................................................................... 10
                         Consents and Approvals....................................................................... 11
          Section 3.06   Capital Structure; Ownership of Upland Common Stock.................... 11

I         Section 3.07
          Section 3.08
          Section 3.09
                         No Undisclosed Liabilities................................................................... 12
                         Brokers................................................................................................. 12
                         Upland Balance Sheet ......................................................................... 12
          Section 3.10   Absence of Certain Changes or Events................................................ 12
I         Section 3.11
          Section 3.12
                         Compliance with Laws, Material Agreements and Permits ................. 13
                         Govermnental Regulation. ................................................................... 14
          Section 3.13   Litigation. ............................................................................................. 14

I         Section 3.14
          Section 3.15
          Section 3.16
                         No Restrictions ..................................................................................... 14
                         Title to Non-Oil and Gas Assets.......................................................... 14
                         Taxes .................................................................................................... 14
          Section 3.17   Employee Benefit Plans....................................................................... 16
I         Section 3.18   Payment Contracts and Benefits.......................................................... 16
        . Section 3.19 . Accounts Receivable......;..............~ ...................................................... 16
          Section 3.20   Insurance.............................................................................................. 16

I         Section 3.21
          Section 3.22
          Section 3.23
                         Office and Other Equipment ............................................................... 16
                         Title to Oil and Gas Assets................................................................... 17
                         Oil and Gas Operations........................................................................ 17
          Section 3.24   Hydrocarbon Sales Agreements........................................................... 17
I         Section 3.25
          Section 3.26
                         Environmental Matters......................................................................... 17
                         Royalties ............................................................................................... 18
          Section 3.27   Securities Matters................................................................................. 18

I         Section 3.28
          Section 3.29
          Section 3.30
                         Insider Interests.................................................................................... 18
                         Financial Requirements........................................................................ 18.
                         Bank Accounts and Powers of Attorney.............................................. 18
          Section 3.31   Representations and Warranties Exclusive.......................................... 18
I   ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER ................................... 19
             Section 4.01         Organization......................................................................................... 19
                                                            -i-              CONFIDENTIAL                    APACHE001132

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                                                                                                APPENDIX B - Page 3
                                                                                                                 Execution Venion
                                                                                                                                                  I
          Section 4.02
          Section 4.03
                                   Authority and Enforceability................................................................ 19
                                   No Violations....................................................................................... 19
                                                                                                                                                  I
          Section 4.04             Consents and Approvals....................................................................... 19
          Section 4.05
          Section 4.06
          Section 4.07
                                   Govennncntal Regulation. ................................................................... 19
                                   Litigation. ............................................................................................. 19
                                   Funding................................................................................................ 20
                                                                                                                                                  I
          Section 4.08
          Section 4.09
          Section 4.10
                                   Brokers................................................................................................. 20
                                   Held for Investment ............................................................................. 20
                                   Buyer's Investigation; Sophisticated Buyer.......................................... 20
                                                                                                                                                  I
          Section 4.11             Absence of Certain Changes and Events.............................................. 20
          Section 4.12
          Section 4.13
                                   Compliance with Law.......................................................................... 20
                                   No Undisclosed Liabilities. .................................................................. 20              I
ARTICLE 5 COVENANTS .......................................................................................................... 21
     Section 5.01
     Section 5.02
     Section 5.03
                  Conduct of Business by Upland and Sellers Pending Closing. ............ 21
                  Access to Assets, Personnel and Information. ..................................... 23
                  Additional Arrangeinents..................................................................... 24
                                                                                                                                                  I
     Section 5.04
     Section 5.05
     Section 5.06
                  Public AnnounceDlents......................................................................... 24
                  Payment of Expenses........................................................................... 24
                  Operations............................................................................................ 24
                                                                                                                                                  I
     Section 5.07 Adjustments to the Financial Statements............................................. 24
     Section 5.08
     Section 5.09
     Section 5.10
                  Tax Matters.......................................................................................... 26
                  Upland Name Change.......................................................................... 28
                  Signs..................................................................................................... 28
                                                                                                                                                  I
     Section 5.11 Preferential Right to Purchase.............................................................. 28
ARTICLE 6 TITLE AND ENVIRONMENTAL MA11"ERS ...................................................... 29
     Section 6.01  Title Defect Adjustments..................................................................... 29
                                                                                                                                                  I
     Section 6.02
     Section 6.03
                   Environmental Defect Adjustinents..................................................... 31
                   Casualty Loss....................................................................................... 32
ARTICLE 7 CONDIDONS .......................................................................................................... 32
                                                                                                                                                  I
     Section 7.01
     Section 7.02
     Section 7.03
                  · Conditions to Each Party's Obligation to Effect the Transaction. ........ 32
                    Conditions to Obligations of Buyer..................................................... 33
                    Conditions to Obligation of Sellers...................................................... 33
                                                                                                                                                  I
ARTICLE 8 CLOSING................................................................................................................. 34
     Section 8.01   Closing Obligations .............................................................................. 34
ARTICLE 9 POST-CLOSING GAS IMBALANCE ..................................................................... 35
                                                                                                                                                  I'
     Section 9.01 Gas Balancing...................................................................................... 35
ARTICLE 10 TERMIN"ATION .................... ..,............................................................................. 35
     Section 10.01 Termination Rights............................................................................... 35
                                                                                                                                                  I
     Section 10.02 Effect of Termination........................................................................... 36
ARTICLE 11 JNDEMNIFICATION AND ASSUMPTION ........................................................ 36
     Section 11.01 Survival of Representations and Wammties........................................ 36
                                                                                                                                                  I
     Section 11.02 IndCIIIDification By Sellers................................................................... 37
     Section 11.03 IndCIIIDification by Buyer and Upland. ................................................ 39
     Section 11.04 Matters Involving Third Parties........................................................... 39
                                                                                                                                                  I
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                                                                                  CONFIDENTIAL                  APACHE001133
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                                                                                                APPENDIX B - Page 4
I                                                                                                                   Execution Venton

I            Section 11.05
             Section 11.06
                                     Indemnification D~ite Negligence.................................................... 40
                                     Determination of Adverse Consequences............................................ 40

I            Section 11.07
             Section 11.08
                                     Offset.................................................................................................... 40
                                     Application of Article 11. .................................................................... 40
    ARTICLE 12 MISCELLANEOUS ............................................................................................... 41
         Section 12.01 Amendment. ......................................................................................... 41
I        Section 12.02 Notices.................................................................................................. 41
         Section 12.03 Counterparts......................................................................................... 41
         Section 12.04 Entire Agreement; No Third Party Beneficiaries................................. 42

I        Section 12.05 Applicable Law.................................................................................... 42
         Section 12.06 No Remedy in Certain Circumstances................................................. 42
         Section 12.07 Assignment. .......................................................................................... 42
         Section 12.08 Waivers.......................................... ~ .....................................;.;............. 42
I        Section 12.09 Confidentiality Agreement. .................................................................. 43
         Section 12.10 Incorporation. ....................................................................................... 43
         Section 12.11 Waiver of Jury Trial............................................................................. 43

I        Section 12.12 Jurisdiction and Venue......................................................................... 43
         Section 12.13 DamageWaiver.................................................................................... 43
         Section 12.14 Legal Fees............................................................................................ 43
         Section 12.15 Injunctive Relic~ Specific Performance.............................................. 43
I        Section 12.16 Further Assurances ............................................................................... 44
         Section 12.17 Transition............................................................................................. 44


I   Schedules
    Schedule 1.0l(a)             Allocated Values
    Schedule 7.02(d)             Lessors' Non-Producing Minerals to be Leased
I   Schedule 9.01                Gas Balancing

    Disclosure Schedule

I   Exht'bits
    Exht'bitA          Leases
    Exht'bitB          Wells

I   Exht'bit c
    Exht'bitD
    Exht'bitE
                       Form of Lease
                       Form of Guaranty Agreement
                       Form ofTransition Agreement

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                                                                                                  APPENDIX B - Page 5
                                                                                Execution Venion
                                                                                                       I
                         STOCKPURCHASEANDSALEAGREEMENT                                                 I
       This Stock Purchase and Sale Agreement (this "Agreement") is made and entered into as
of the 12th day of September, 2007, by and among Cordillera Energy Partners m, LLC, a
Colorado limited liability company ("Buyer"}, Bailey Peyton, George Bailey Peyton IV 2007
                                                                                                       I
Grantor Retained Annuity Trust No. 1 (each, a "Seller", and collectively, the "Sellers"), and
Upland Resources, Inc., a Texas COipOration ("Upland").
                                                                                                       I
        All of the issued and outstanding shares of capital stock of Upland, are owned by Sellers.
Buyer wishes to purchase from Sellers all of the capital stock of Upland on the tcn:ns and subject
to the conditions set forth herein.                                                                    I
       NOW, TIIEREFORE, for and in consideration of the recitals and the mutual covenants
and agreements set forth in this Agreement, the parties to this Agreement hereby agree as
follows:                                                                                               I
                                          ARTICLE!
                                         DEFINITIONS                                                   I
        Section 1.01 Defined Terms. As used in this Agreement, each of the following tcn:ns
has the meaning given in this Section 1.01 or in the Sections referred to below:

        "Accounting Arbitrator" has the mcaning specified in Section 5.07(b).
                                                                                                       I
        "Act" means the Securities Act of 1933, as amended.

        "Adverse Consequences" means all actions, awards, suits, proceedings, hearings,
                                                                                                       I
investigations, charges, complaints, claims, demands, injunctions, judgments, orders, d~
rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities,
obligations, taxes (including interest thereon), liens, losses, expenses, and fees, including court
                                                                                                       I
costs and reasonable attorneys' fees and expenses.

        "Affiliate" means, with respect to any Person, each other Person that directly or indirectly
(through one or more intermediaries or otherwise) controls, is controlled by, or is under .common
                                                                                                       I
control with such Person.

       "Agreement" means this Stock Purchase and Sale Agreement, including all exln'bits and           I
schedules, the Disclosure Schedule, and any other schedules and similar attachments, as
amended, supplemented or modified from time to time.

        "Allocated Values" means the allocation of values among the Oil and Gas Interests and
                                                                                                       I
other assets shown on Schedule 1.0l(a).
       "Applicable Rate" means the London Interbank: Offered Rate for three (3) month loans as
published in The Wall Street Journal, as such rate may be adjusted from time to time, plus 0.5%.
                                                                                                       I
         "Bank Consent" means the full consent of Upland's lenders under its senior credit facility
to the transaction contemplated by this Agreement
                                                                                                       I
                                                                                                       I
512819 000002 HOUSTON S4JS24.S
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                                                850

                                                                     APPENDIX B - Page 6
                                                                                      Execudon Venion

I            "Buyer" means Cordillera Energy Partners ill, LLC, a Colorado limited liability company.


I            "Buyer Indemnitees" has the meaning specified in Section 11.02.

            "Buyer's Projected Costs" means the costs and expenses associated with the maintenance,
    exploration, development, operation and abandonment of a well or unit assuming that all

I   projected wells and units listed in Schedule 1.0l{a) are drilled and developed and that all wells
    and units listed in Schedule 1.0l(a) commence and/or continue to produce Hydrocarbons for the
    time period necessary for Buyer to realize the present value for such wells or units as set forth in
    Schedule 1.0l(a} (assuming that such present value was detennined with a discount factor of
I   10% compounded annually).

             "Byrd Well Litigation" has the meaning specified in Section 11.02.

I           "CERCLA" means the Comprehensive Environmental Response, Compensation and
    Liability Act of 1980, as amended, or any successor statutes and any regulations promulgated
    thereunder.

I            "Cleanup" has the meaning specified in Section l l.02(bXi}(l).

            "Closing" means the consummation of the transaction contemplated by this Agreement
I           "Closing Date" means the date on which the Closing occurs.

          "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any
I   comparable successor statute or statutes.              ·

           "Confidentiality Agreement" means the Confidentiality Agreement dated February 2,

I   2007 between Upland and Buyer relating to Upland's furnishing of information to Buyer in
    connection with Buyer's evaluation of the possibility of the transaction.

            "Credit Adjustment" has the meaning specified in Section 6,0l(g).
I           "Cure Period" has the meaning assigned to such term in Section 6.0l(e).

            "Defect Amount" has the meaning specified in Section 6.0l(c).
I           "Defensible Title" means such right, title and interest that is held directly or indirectly by
    Upland or for the benefit of Upland, in the Ownership Interests that, except for and subject to the

I   Permitted Encumbrances: (i) entitles Upland to receive as to each Ownership Interest set forth in
    Schedule 1.0l(a), not less than the "NRI" set forth in Schedule l.Ol(a) in the oil, gas and
    associated liquid and gaseous hydrocarbons produced, saved and marketed from such Ownership
    Interests; (ii) obligates Upland to bear costs and expenses relating to the maintenance,
I   development and operation of any such Ownership Interest in an amount not greater than the
    "Working Interest" set forth in Schedule 1.0l(a}, and (iii) is free and clear of Liens and material
    encumbrances and defects. Upland's title to an Ownership Interest shall be presumed to be

I   Defensible Title, unless Buyer can show through actual evidence (rather than a mere assertion
    that documents are missing from Sellers' or Upland's records) submitted with a Title Defect
    notice pursuant to Section 6.01 (b) that Upland's title to an affected lease or well has failed or that
                                                     -2-
I
    512819 000002 HOUSTON 543524.S                             CONFIDENTIAL          APACHE001136




                                                   851

                                                                         APPENDIX B - Page 7
                                                                                Execution Venfoo
                                                                                                        I
such Ownership Interest is subject to a Llen (except for Permitted Encumbrances) that would
create a material diminution in value in such Ownership Interest
                                                                                                       I
        "Disclosure Schedule" means the Disclosure Schedule attached hereto and any documents
listed on such Disclosure Schedule.                                                                    I
         "Effective Date Balance Sheet" has the meaning specified in Section S.07(a).

        "Effective Time" means July 1, 2007, at 7:00 a.m. at the location of the Oil and Gas
Interests.
                                                                                                       I
       "Environmental Defect" means any circumstance or condition that would constitute a
breach of Upland's and Sellers' warranty and representation set forth in Section 3.25 without
                                                                                                       I
regard to Upland's or Sellers' disclOSW"C of such circumstance or condition on the DisclOSW"C
Schedule, taking into account the standards set forth in Section 11.02(bXiii}.

        "Environmental Law" means any federal, state, or local statute, code, ordinance, rule,
                                                                                                       I
regulation, policy, guideline, permit, consent, approval, license, judgment, order, writ, decree,
common law, injunction or other authorization in effect on the date of this Agreement or at a
previous time applicable to Upland's operations relating to (a) emissions, discharges, releases or
                                                                                                       I
threatened releases of Hazardous Materials into the natural environment, including into ambient
air, soil, sediments, land surface or subsurface, buildings or facilities, surface water,
groundwater, publicly owned treatment works, septic systems or land; (b) the generation,
treatment, storage, disposal, use, handling, manufacturing, transportation or shipment of
                                                                                                       I
Hazardous Materials; (c} occupational health and safety; or (d} otherwise relating to the pollution
of the environment, solid waste handling, treatment or disposal, or operation or reclamation of oil
and· gas operations or mines.
                                                                                                       I
        "ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

       "GAAP" means generally accepted accounting principles, as recognized by the U.S.
                                                                                                       I
Financial Accounting Standards Board (or any generally recognized successor}.

      "Governmental Action" means any authorization, application, approval, consent,
exemption, filing, license, notice, registration, permit or other requirement of, to or with any
                                                                                                       I
Govcinmental Authority".

       "Governmental Authority" means any national, state, county or municipal government,
                                                                                                       I
any agency, board, bureau, commission, court, department or other instrumentality of any such
government, or any arbitrator, in any case that has jurisdiction over either a Seller, Upland, Buyer
or any of their respective properties or assets.                                                       I
        "Hazardous Material" means (a) any "hazardous substance," as defined by CERCLA,
(b} any "hazardous waste" as defined by the Resource Conservation and Recovery Act, as
amended, or (c) any substances, materials or wastes classified, characterized or otherwise
                                                                                                       I
regulated under any Environmental Law as hazardous, toxic, pollutant, contaminant, or words of
similar meaning or effect, as well as, any petrolewn product, by product or constituent thereof.
                                                                                                       I
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                                                852

                                                                     APPENDIX B - Page 8
I                                                                                    Execution Venton

I           "Hydrocarbon Sales Agreement" means any sales agreement, purchase contract or
    marketing agreement that is currently in effect and under which Upland is a seller of

I   Hydrocarbons (other than "spot" sales agreements entered into in the ordinmy course of business
    with a term of three months or less, terminable without penalty on thirty (30) days' notice or less,
    and which provide for a price not less than the market value price that would be received
    pursuant to an arm's length contract for the same term with an unaffiliated third-party purchaser).
I          "Hydrocarbons" means oil, condensate, gas, casinghead gas and other liquid or gaseous
    hydrocarbons.

I           "Indemnified Party" has the meaning specified in Section l l .04(a).

            "Indemnifying Party" has the meaning specified in Section 11.04(a).

I           "Knowledge", unless otherwise defined in this Agreement, means, (a) with respect to a
    party hereto that is an entity, the actual knowledge, without independent investigation, of any
    officer or manager of such entity in charge of a discrete business area or fimction having

I   responsibility for the referenced matter, and (b) with respect to a party hereto that is an
    individual, the actual knowledge of such individual.

            "Lessors" has the meaning specified in Section 7.02(d).
I            "Lien" means any lien, mortgage, security interest, pledge, deposit, production payment,
    restriction, bmden, encumbrance, right of a vendor under any title retention or conditional sale

I   agreement, or lease or other arrangement substantially equivalent thereto.

            "Material Adverse Effect" means (a) when used with respect to a Seller or Upland, as the
    case may be, a result or consequence that would materially adversely affect the financial

I   condition, results of operations or business of such Seller or Upland or the aggregate value of itS
    assets, would materially impair the ability of such Seller or Upland to own, bold, develop and
    operate their assets, or would materially impair such Seller's or Upland's ability to perform its

I   obligations hereunder or consummate the transactions contemplated hereby; and (b) when used
    with respect to Buyer, a result or consequence that would materially adversely affect the
    condition {financial or otherwise), results of operations or business of Buyer or the aggregate
    Value· of its assets, would materially impair the ability of Buyer to own, hold, develop and operate
I   its assets, or would impair Buyer's ability to perform its respective obligations hereunder or
    conswnmate the transactions contemplated hereby.



I           "NRI" means Net Revenue Interest

            "Oil and Gas Intercst(s)" means (a) direct and indirect interests in and rights with respect
    to oil, gas, mineral and related properties and assets of any kind and nature, direct or indirect,

I   including working, royalty and overriding royalty interests, production payments, operating
    rights, net profits interests, other nonworking interests and nonoperating interests; (b) interests in
    and rights with respect to Hydrocarbons and other minerals or revenues therefrom and contracts
    in connection therewith and claims and rights thereto (including oil and gas leases, operating
I   agreements, unitization and pooling agreements and orders, division orders, transfer orders,
    mineral deeds, royalty deeds, oil and gas sales, exchange and processing contracts and
                                                               CONFIDENTIAL          APACHE001138

I   512819 000002 HOUSTON 543524.S




                                                   853

                                                                         APPENDIX B - Page 9
                                                                                Execution Venion
                                                                                                        I
agreements and, in each case, interests thereunder), surface interests, fee interests, reversionary
interests, reservations and concessions; (c) easements, rights-of-way, licenses, permits, leases,
                                                                                                        I
and other interests associated with, appurtenant to, or necessary for the operation of any of the
foregoing; and (d) interests in equipment and machinery (including well equipment and
machinery), oil and gas production, gathering, transmission, compression, treating, processing
and storage facilities (including tanks, tank batteries, pipelines and gathering systems), pumps,
                                                                                                        I
water plants, electric plants, gasoline and gas processing plants, refineries and other tangi"ble
personal property and fixtures associated with, appurtenant to, or necessary for the operation of
any of the foregoing. References in this Agreement to the "Oil and Oas Interests," "Oil and Oas
                                                                                                        I
Interests of Upland," and "Upland's Oil and Gas Interests" mean the collective Oil and Gas
Interests of Upland held directly, indirectly or for the benefit of Upland, including the leases
descn"bed on Exln'bit A and the wells descn'bed on Exhibit B.                                           I
       "Ownership Interest" means each Oil and Gas Interest as separately identified by line item
on Schedule 1.0l(a).                                                                                    I
        "Permits" has the meaning specified in Section 3.11.

         "Permitted Encwnbrances" means (a) Liens for Twces, assessments or other governmental
charges or levies if the same shall not at the particular time in question be due and delinquent or
                                                                                                        I
(if foreclosure, sale or other similar proceedings shall not have been commenced or, if
commenced, shall have been stayed) are being contested in good faith by appropriate proceedings
and if Upland shall have set aside on its books such reserves (segregated to the extent required by
                                                                                                        I
sound accounting practices) as may be required by or consistent with GAAP, whether reserves
are set aside or not, which would not, individually or in the aggregate, result in an adverse effect
on Upland; (b) Liens of carriers, warehousemen, mechanics, laborers, materialmen, landlords,
vendors, workmen and operators arising by operation of law in the ordinary course of business or
                                                                                                        I
by a written agreement existing as of the date of this Agreement and necessary or incident to the
exploration, development, operation and maintenance of the Oil and Gas Interests and related
facilities and assets for swns not yet due or being contested in good faith by appropriate
                                                                                                        I
proceedings, if Upland shall have set aside on its books such reserves (segregated to the extent
required by somid accomiting practices) as may be required by or consistent with GAAP, whether
reserves are set aside or not, which would not, individually or in the aggregate, result in an
adverse effect on Upland; (c) Liens incurred in the ordinary course of business in connection with
                                                                                                        I
worker's compensation, unemployment insurance and other social security legislation (other than
BRISA) which would not, individually or in the aggregate, result in an adverse effect on Upland;
(d) Lieils incurred in the ordinary course of business to secure the performance of bids, tenders,
                                                                                                        I
trade contracts, leases, statutory obligations, surety and appeal bonds, performance and
repayment bonds and other obligations of a like nature; (e) Liens, easements, rights-of-way,
restrictions, servitudes, permits, conditions, covenants, exceptions, reservations and other similar
encumbrances incurred in the ordinary course of business or existing on property and not
                                                                                                        I
materially impairing the value of the assets of Upland or materially interfering with the ordinary
conduct of the business of Upland or rights to any of their assets; (f) Liens arising pursuant to
statute (or similar Liens created or arising by operation oflaw) to secure a party's obligations as a
                                                                                                        I
purchaser of oil and gas; (g) all rights to consent by, required notices to, filings with, or other
actions by Governmental Authorities to the extent customarily obtained subsequent to closing;
(h) farm.out, carried working interest, joint operating, uniti7.ation, royalty, overriding royalty,     I
512819 000002 HOUSTON 543524.S                  -5-         CONFIDENTIAL         APACHE001139
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                                               854

                                                                  APPENDIX B - Page 10
I                                                                                    Execution Venion

I   sales and similar agreements relating to the exploration or development of, or production from,
    the Oil and Gas Interests entered into in the ordinary course of business and not in violation of

I   Section 5.0l(b), provided the effect thereof on the WI and NRl of Upland has been properly
    reflected in the Ownership Interests; (i) any defects, irregularities or deficiencies in title to
    easements, rights-of-way or other smface use agreements that do not adversely affect the value of
    any asset of Upland; (j) preferential rights to purchase and Third Party Consents that have been
I   waived or obtained; (k) rights reserved to or vested in any municipality or govermnental, tnbal,
    statutory or public authority to control or regulate any of the Ownership Interests in any manner,
    and all applicable laws, rules and orders of governmental and tnoal authority; and (1) all other

I   liens, charges, encwnbrances, contracts, agreements, instruments, obligatioJ1S, defects and
    irregularities affecting the Ownership Interests (including, without limitation, liens of operators
    relating to obligations not yet due or pursuant to which Upland is not in default) that do not (or
    would not upon foreclosure or other enforcement) reduce the NRl set forth in Schedule l.Ol(a),
I   nor prevent the receipt of proceeds of production therefrom, nor increase the share of costs above
    the WI set forth in Schedule 1.0l(a), nor are such as materially to interfere with or detract from
    the ownership, operation, value or use of the Ownership Interests; such defects include, without

I   limitation:

           (a)    as to producing Oil and Gas Interests, those which have not prevented the receipt
    of production proceeds by Upland or its predecessors in title without suspense by a production

I   purchaser and as to which no challenge .to title has been raised on the basis of such defect, so
    long as it can reasonably be concluded either that such challenge is unlikely or that such
    challenge would be unsuccessful by reason of statutes of limitation, waiver, estoppel or other

I   defenses;

           (b)    those defects customarily considered as advisory or ·waiVable as a matter of
    prudent business judgment;

I           (c)     those in the natme of customary defects expected to be encomtered in the area
    involved and customarily acceptable to Upland, Buyer or other prudent operators and interest
    owners in the area, including, without limitation, defects that have been cured by possession
I   Wlder applicable statutes of limitation, defects in the early chain of title such as failure to recite
    marital status in documents, omission of heirship or succession proceedings, lack of survey and
    failure to record releases of liens, production payments or mortgages that have expired of their

I   own terms 6r which through the passage of time or statute are no longer enforceable or other
    defects that either as a practical matter have not resulted or are not likely to result in claims that
    will materially adversely affect Upland's title or are considered waivable mder local bar
    association-approved title standards or customary title practices in the area; or
I            (d)    those included in an attorney's title opinion or that are otherwise evident from an
    examination of the records of Upland that have existed for seven (7) years as of the date of this

I   Agreement and for which no claim has been asserted in writing to Upland or its predecessors in
    title during said seven (7) year period.
            "Person" means any natural person, corporation, company, limited or general partnership,

I   joint stock company, joint venture, association, limited liability company, trust, bank, trust
    company, land trust, business trust or other entity or organization, whether or not a Governmental
    Authority.
                                                              CONFIDENTIAL          APACHEOD.1140

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                                                   855

                                                                      APPENDIX B - Page 11
                                                                                 Execution Venion
                                                                                                        I
         •Petro Pro• has the meaning specified in Section 11.02                                         I
        "Phase I Environmental Audit" means an assessment of Upland's compliance with
Environmental Laws relative to the Oil and Gas Interests and other assets of Upland consisting of
examination of Upland's files and public docwnents, interviews of personnel and former
personnel of Upland and of other appropriate Persons, visual inspection of the Oil and Gas
                                                                                                        I
Interests and other assets of Upland, and NORM and asbestos surveys. The foregoing definitions
shall not include or authorize any soil borings or laboratory analysis of soil or groundwater
samples on or from the Oil and Gas Interests and other assets of Upland.
                                                                                                        I
        "Post-Closing Defect" has the meaning specified in Section 6.01 (e).

         "Preliminary Purchase Price" has the meaning specified in Section 8.0l(a).
                                                                                                        I
        "Purchase Price" means the amount shown in Section 2.0l(b).

        "Representative" means any director, officer, employee, agent, advisor (including legal,
                                                                                                        I
accounting and financial advisors}, Affiliate or other representative of Upland, Sellers or Buyer,
respectively.                                                                                           I
        "Roberts County Litigation" has the meaning specified in Section 11.02.

        "Seller Indemnitees" has the meaning specified in Section l l.02(b)(i)(l ).                     I
        "Seller's Royalties" has the meaning specified in Section 11.07.

      "Sellers" means Bailey Peyton and George Bailey Peyton IV 2007 Gran.tor Retained
Annuity Trust No. 1.
                                                                                                        I
        "Straddle Period" has the meaning specified in Section 5.08(d).

        "Tax Returns" has the meaning specified in Section 3.16(a).
                                                                                                        I
        "Taxes" means taxes of any kind, levies or other like assessments, customs, duties,
imposts, charges or fees, including income, gross receipts, ad valorem, value added, excise, real
                                                                                                        I
or personal property, asset, sales, use, federal royalty, license, payroll, transaction, capital, net
worth and franchise taxes, estimated taxes, withholding, employment, social secmity, workers
compensation, utility, severance, production, unemployment compensation, occupation,
premium, windfall profits, transfer and gains taxes or other governmental taxes imposed or
                                                                                                        I
payable to the United States or any state, local or foreign governmental subdivision or agency
thereof, and in each instance such term shall include any interest, penalties or additions to tax
attributable to any such Tax, including penalties for the failure to file any Tax Return or report.
                                                                                                        I
        "Third Party Claim" has the meaning specified in Section l l.04(a).

        "Third Party Consent" means the consent or approval of any Person other than a Seller,
                                                                                                        I
Buyer or any Governmental Authority.

        "Title Arbitrator" has the meaning specified in Section 6.0l(f) .                               I
512819 000002 HOUSTON 543524.S                   •7.        CONFIDENTIAL          APACHE001141
                                                                                                        I
                                               856

                                                                  APPENDIX B - Page 12
I
                                                                                    Execution Venton

I           "Title Defect" shall mean any encumbrance or defect in Upland's title to the Oil and Gas
    Interests (expressly excluding Permitted Encumbrances}, that renders Upland's title to such Oil

I   and Gas Interest less than DefCilSl'ble Title.

            "Transition Period" has the meaning specified in Section 12.17.


I   2007.
            "Upland Balance ·Sheet" means the unaudited balance sheet of Upland as of June 30,


            "Upland Common Stock" means the common stock, par value $1.00 per share, of Upland.
I           "WI" means Worldng Interest.

            Sectio1,1 ·l.02 References. and TJtles. All references in this Agreement to Exhibits,
I   Schedules, Articles, Sections, subsections and other subdivisions refer to the corresponding
    Exht'bits, Schedules, Articles, Sections, subsections and other subdivisions of or to this
    Agreement unless expressly provided otherwise. Titles appearing at the beginning of any Article,

I   Section, subsection or other subdivisions of this Agreement are for convenience only, do not
    constitute any part of this Agreement, and shall be disregarded in construing the language hereof.
    The words "this Agreement," "herein," "hereby," "hereunder" and "hereof," and words of similar
    import, refer to this Agreement as a whole and not to any particular subdivision unless expressly
I   so limited. The words "this Article," "this Section" and "this subsection," and words of similar
    import, refer only to the Article, Section or subsection hereof in which such words occur. The
    word "or" is not exclusive, and the word "including" (in its various forms) means "including

I   without limitation." Pronouns in masculine, feminine or neuter genders shall be construed to state
    and include any other gender, and words, terms and titles (including terms defined herein) in the
    singular form shall be construed to include the plural and vice versa, unless the context otherwise
    requires.
I                                             ARTICLE2
                                          PURCHASE AND SALE

I           Section 2.01       Purchase and Sale of Upland Common Stock.

             (a)    Basic Transaction. Subject to the terms and conditions of this Agreement, Buyer

I   agrees to purchase from each Seller, and each Seller agrees to sell, assign and deliver to Buyer,
    all of the Upland Common Stock owned by such Seller for the consideration specified below in
    this Article 2.

I          (b)    Purchase Price. Buyer shall pay to Sellers an aggregate of $73,170,000 (the
    "Pmchase Price") by wire transfer of immediately available United States funds to a designated
    account or accounts of Sellers at Closing.

I           Section 2.02
    as follows:
                               Adiustments to Purchase Price. The Purchase Price shall be adjusted


I           (a)

            (b)
                     increased or decreased as set forth in Section S.07;

                     decreased for Title Defects and Environmental Defects as set forth in Article 6;
                                                     .g.
I
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                                                    857

                                                                       APPENDIX B - Page 13
                                                                                Execution Venion
                                                                                                       I
       (c)     increased or decreased as set forth in Section 9.01 regarding gas imbalances for
Oil and Gas Interests;
                                                                                                       I
        (d)    decreased for the amounts in "suspense accounts" maintained by Upland
attributable to the Oil and Gas Interests to the extent such matters are not included in the
adjustment made under (a) above;
                                                                                                       I
      (e)    decreased by the amount that any commercial debt obligations of Upland being
assumed by Buyer exceeds $5,000,000;                                                                   I
        (f)      increased (i) by the amount of actual drilling and completion expenses incurred
and paid by Upland prior to the Effective Time relating to the Eubank #1-44 Well; and (ii) by the
amount of actual capital expenditures made relating to Oil and Gas Interests between the
                                                                                                       I
Effective Time and the date hereof if authorized pursuant to Section 5.01 hereof other. than those
specified in (i) above (relating to the Eubank #1-44 Well);

        (g)   increased or decreased for ad valorem, real and personal property, production, and
                                                                                                       I
income taxes as provided in Section 5.0S(a) and (d) to the extent such matters are not included in
the adjustment made under (a) above;                                                                   I
       (h)     decreased by the amount of any receivable due from any Affiliate of Upland,
including any receivable due from Panhandle Pipeline, L.P .;

        (i)     decreased by amount necessary for the net working capital of Upland to be zero
                                                                                                       I
dollars ($0) as of June 30, 2007 (with net working capital computed as set forth in Section 5.07);
and

        G)    increased or decreased by any other amounts as agreed to in writing between
                                                                                                       I
Sellers and Buyer.

       Section 2.03 The Closing. The Closing of the transactions contemplated by this
                                                                                                       I
Agreement shall take place at the offices of Upland in Canadian, Texas, commencing at 9:00
a.m. local time on November 1, 2007, or such other time or place as Buyer and Sellers may
mutually determine.                                                                                    I
                                           ARTICLE3
         REPRESENTATIONS AND WARRANTIES OF UPLAND AND SELLERS                                          I
       Sellers and Upland hereby jointly and severally represent and warrant to Buyer as
follows:

        Section 3.01 Organization, Upland (a) is a corporation duly incorporated, validly
                                                                                                       I
existing and in good standing under the laws of the State of Texas, {b) bas the requisite corporate
power and authority to own, lease and operate its properties and to conduct its business as it is
presently being conducted, and (c) is duly qualified to do business as a foreign corporation, and is
in good standing, in each jurisdiction listed on the Disclosure Schedule, which are all the
                                                                                                       I
jurisdictions where the character of the properties owned or leased by it or the nature of its
activities makes such qualification necessary. No actions or proceedings to dissolve Upland are        I
512819 000002 HOUSTON 543524.5                  -9-
                                                           CONFIDENTIAL          APACHE001143
                                                                                                       I
                                               858

                                                                  APPENDIX B - Page 14
,I
                                                                                       Execution Venton

I    pending. Sellers have delivered to Buyer accurate and complete copies of (i) the articles of
     incorporation and by-laws of Upland, (ii) the stock records of Upland, and (ill) the minutes of all

I    meetings of Upland's board of directors, any committees of such board, and ·Upland's
     shareholders (and all consents in lieu of such meetings). Such records, minutes, and consents
     accurately reflect the stock ownership of Upland and all actions taken by Upland's board of
     directors, any committees of such board, and Upland's shareholders. Upland is not in violation of
I    any provision of its articles of incorporation or bylaws.

             Section 3.02 Subsidiaries. Upland bas no subsidiaries. Upland does not own,
     directly or indirectly, any capital stock or other equity interest in any cmporation, limited liability
I    company, general or limited partnership, or other entity (other than joint venture, joint operating
     or ownership arrangements or tax partnerships entered into in the ordinary course of business).


I            Section 3.03 Authority and Enforceabllity. Upland bas the requisite corporate
     power and authority to enter into and deliver this Agreement and to consummate the transactions
     contemplated hereby. The execution and delivery of this Agreement and the consummation of the
     transactions contemplated hereby have been duly and validly authorized by all necessary
I    corporate action on the part of Upland, including approval by the board of directors of Upland,
     and no other corporate proceedings on the part of Upland are necessary to authorize the
     execution or delivery of this Agreement or to consummate the transactions contemplated hereby.

I    This Agreement bas been duly and validly executed and delivered by Upland and constitutes a
     valid and binding obligation of Upland enforceable against Upland in accordance with its terms,
     except to the extent that (a) the enforcement hereof may be limited by bankruptcy, insolvency,
     reorganization, moratorium, fraudulent transfer, or other similar laws now or hereafter in effect
I    relating to creditors' rights generally and (b) the remedy of specific performance and injwctive
     and other forms of equitable relief may be subject to .equitable defenses and to the discretion of
     the court before which any proceeding therefor may be brought. Each Seller bas full legal right,

I    power, and authority to execute, deliver, and perform this Agreement and to conswnmate the
     transactions contemplated hereby. This Agreement has been duly executed and delivered by each
     Seller and constitutes, and each other agreement, instrument, or document executed or to be



,.
     eiecuted by a Seller in connection with the transactions contemplated hereby has been, or when
I    executed will be, duly executed and delivered by such Seller and constitutes, or when executed
     and delivered will constitute, a valid and legally binding obligation of such Seller, enforceable
     against such Seller in accordance with their terms, except t_o the extent that (a) the enforcement
     hereof may be limited by· bankruptcy, insolvency, reorganization, moratorium, fraudulent
     transfer, or other similar laws now or hereafter in effect relating to creditors' rights generally and
     (b) the remedy of specific performance and injunctive and other forms of equitable relief may be
     subject to equitable defenses and to the discretion of the court before which any proceeding
I    therefor may be brought. ·

              Section 3.04 No Violations. The execution, delivery, and performance by Sellers and

I    Upland of this Agreement does not, and the consummation of the transactions contemplated
     hereby and compliance by Sellers with the provisions hereof will not, conflict with, result in any
     violation of or default (with or without notice or lapse of time or both) wder, give rise to a right
     of termination, cancellation or acceleration of any obligation or to the loss of a material benefit
I    wder, or result in the creation of any Lien on any of the properties or assets of Upland or a Seller
     llllder, any provision of (a) the certificate or articles of incorporation or by-laws of Upland or the
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                                                                       APPENDIX B - Page 15
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                                                                                                         I
governing documents of George Bailey Peyton IV 2007 Grantor Retained Annuity Trust No. I,
(b) any loan or credit agreement, note, bond, mortgage, indenture, lease, permit, concession,
                                                                                                         I
franchise, license or other agreement or instrument applicable to a Seller or Upland, or
(c) assuming the consents, approvals, authorizations or permits and filings or notifications
referred to in Section 3.05 are duly and timely obtained or made, any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to a Seller or Upland or any of their
                                                                                                         I
respective properties or assets.

         Section 3.05 Consents and Approvals. No Governmental Action from any
                                                                                                         I
 Governmental Authority is required by or with respect to Upland or either Seller in connection
 with the execution and delivery of this Agreement by Upland or either Seller or the
 consummation by Upland or either Seller of the transactions contemplated hereby, except for the
 following: (a) any Governmental Action which the failure to obtain or make would not,
                                                                                                         I
·individually or in the aggregate, have a Material Adverse Effect on Upland; (b) all Governmental
 Action by Governmental Authorities to the extent customarily obtained subsequent to Closing;
 and (c) such filings and approvals as may be required by any applicable state securities, "blue
                                                                                                         I
 sky" or takeover laws, or Environmental Laws. No Third Party Consent is required by or with
 respect to Upland or either Seller in connection with the execution and delivery of this
 Agreement or the conswnmation of the transactions contemplated hereby, except for such
 consent, approval or waiver as set forth in the Disclosure Schedule.
                                                                                                         I
        Section 3.06       Capital Structure; Ownenhip of Upland Common Stock.
                                                                                                         I
     (a)   The authorized capital stock of Upland consists of 100,000 shares of Upland
Common Stock, par value $1.00 per share.

       (b)    There are issued and outstanding 1,000 shares of Upland Common Stock. No
                                                                                                         I
shares of Upland Common Stock are held by Upland as treasury stock. There are and as of the
Closing Date there will be no outstanding obligations of Upland to repurchase, redeem, or
otherwise acquire any of the foregoing shares of Upland Common Stock.                                    I
               All outstanding shares of Upland Common Stock are owned by Sellers in the
        (c)
proportions set forth on the Disclosure Schedule. Except as set forth in (b) above, there are
outstanding (i) no shares of capital stock or other voting securities of Upland, (it) no securities of
                                                                                                         I
Upland or any other Person convertible into or exchangeable or exercisable for shares ofcapital
stock or other voting securities of Upland, and (iii) no subscriptions, options, warrants, calls,
rights (including preemptive rights), commitments, understandings or agreements to which a
Seller is a party or by which it is bo1Dld obligating a Seller or Upland to issue, deliver, sell,
                                                                                                         I
purchase, redeem or acquire shares of capital stock or other voting securities of Upland (or
securities converb'ble into or exchangeable or exercisable for shares of capital stock or other
voting securities of Upland) or obligating a Seller or Upland to grant, extend or enter into any
                                                                                                         I
such subscription, option, warrant, call, right, commitment, understanding or agreement.

        (d)      All outstanding shares of Upland Common Stock have been validly issued and are
fully paid and nonassessable, and no shares of Upland Common Stock have been issued in
                                                                                                         I
violation of preemptive or similar rights. The shares of Upland Common Stock owned by Sellers
constitute all of the outstanding shares of capital stock of Upland.                                     I
'12119 000002 HOWJ'ON 543524.S                  -11-
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                                                                   APPENDIX B - Page 16
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I           (e)    There is no stockholder agreement, voting trust or other agreement or
    wderstanding to which a Seller is a party or by which it is bound relating to the voting or transfer
    of any shares of the capital stock of Upland.
I            (f)     Each Seller is (and at the Closing will be) the record and beneficial owner of, and
    upon consummation of the transactions contemplated hereby Buyer will acquire good, valid, and

I   marketable title to, the nmnber of shares of Upland Common Stock set forth opposite the name
    of such Seller on the Disclosure Schedule, free and clear of all Liens, other than (i) those that
    may arise by virtue of any actions taken by or on behalf of Buyer or its Affiliates, or
    (ii) restrictions on transfer that may be imposed by federal and state securities laws.
I           Section 3.07 No Undisclosed Liabilities. There ere no liabilities of Upland of any
    kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise,

I   other than (a) liabliities reflected in· the Upland Balance Sheet, (b) liabilities incurred in the
    ordinary course of business subsequent to June 30, 2007, and (c) liabilities under this Agreement
    or expressly disclosed herein, including matters disclosed in the Disclosure Schedule and the
    exhibits attached hereto.
I          Section 3.08 Broken. No broker, finder, investment banker or other Person is or will
    be, in connection with the transactions contemplated by this Agreement, entitled to any

I   brokerage, finder's or other fee or compensation based on any arrangement or agreement made by
    or on behalf of a Seller or Upland.

           Section 3.09 Upland Balance Sheet Upland has delivered to Buyer an accurate and

I   complete copy of the Upland Balance Sheet. The Upland Balance Sheet fairly presents in all
    material respects the financial condition of Upland as of the date thereof.

            Section 3.10 Absence of Certain Changes or Events. Except as otherwise set forth
I   in the Disclosure Schedule or as contemplated by this Agreement, to the Knowledge of Sellers or
    Upland, since the Effective Time, Upland has not done any of the following:


I          (a)     Discharged or satisfied any Lien or paid any obligation or liability, absolute or
    contingent, other than current liabilities incurred and paid in the ordinary course of business and
    consistent with past practices;

I           (b)     Paid or declared any dividends or distn"butions, purchased, redeemed, acquired or
    retired stock or other securities from its stockholders or other security holders;


I           (c)      Except for Permitted Encmnbrances, suffered or permitted any Lien to arise or be
    granted or created against or upon any of its assets;
            (d)      Amended its certificate or articles of incorporation or by-laws;

I          (e)      Made any material investment in or contn"bution, payment, advance or loan to any
    Person, other than in the ordinary course of business and consistent with past practices;


I           (f)    Sold, transferred or leased any of its assets to, or entered into any other
    transactions with, any third party, other than in the ordinary course of business;
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                                                                       APPENDIX B - Page 17
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                                                                                                       I
        (g)   Made any material change in any of the accounting principles followed by Upland
or the method of applying such principles;
                                                                                                       I
       (h)     Entered into any material transactions (other than this Agreement) except in the
ordinary course of business and consistent with past practices;                                        I
         (i)      Accelerated, terminated, modified, or cancelled any material agreement, contract,
lease, or license (or series of related agreements, contracts, leases, and licenses) to which Upland
is a party, or is bound;                                                                               I
       (j)    Issued any note, bond, or other debt security or created, incurred, assmned, or
guaranteed any indebtedness for borrowed money or capitalized lease obligations;                       I
       (k)     Delayed or postponed the payment of accounts payable and other liabilities
outside the ordinary course of business;

       (1)      Cancelled, compromised, waived, or released any right or claim (or series of
                                                                                                       I
related rights and claims);

       (m) . Issued, sold, or otherwise disposed of any of its capital stock. or granted any           I
options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or
exercise) any of its capital stock;

        (n)     Except for the assignments of overriding royalty interest to Peyton Oil & Gas, Inc.
                                                                                                       I
set forth on the Disclosure Schedule, made any loan to, or entered into any other transaction with,
any of its directors, officers, or employees outside the ordinary course of business;

       (o)    Made or pledged to make any charitable or other capital contribution outside the
                                                                                                       I
ordinary course of business;                                                                 ·

      (p)      Made any change in Tax elections or in the manner in which Taxes are reported or        I
made any payment of Taxes in excess of the liability accruals for Taxes reflected on the Upland
Balance Sheet;

       (q)    Entered into any Hydrocarbon Sales Agreement except as disclosed on the
                                                                                                       I
Disclosure Schedule; or                ·            ·        ·

      · (r)    Entered into any swap, hedging or similar arrangements which remain open on the
date of this Agreement except as disclosed on the Disclosure Schedule.
                                                                                                       I
         Section 3.11 CompUance with Laws. Material Agreements and Permits. Upland is
not in violation of, or in default in any respect under, and no event has occurred that (with notice
                                                                                                       I
or the lapse of time or both) would constitute a violation of or default under any applicable law,
rule, regulation, order, writ, decree or judgment of any Governmental Authority (excluding
Environmental Laws which are the subject of Section 3.25). Upland has, or Sellers on behalf of
Upland have, obtained and hold all permits, licenses, variances, exemptions, orders, franchises,
                                                                                                       I
approvals and authorizations of all Governmental Authorities necessary for the lawful conduct of
its business or the lawful ownership, use and operation of its assets ("Permits"). Upland (or
Sellers on behalf of Upland) is in compliance with the terms of such Permits. No investigation
                                                                                                       I
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                                                                 APPENDIX B - Page 18
I                                                                                      Execution Venton

I    or review by any Governmental Authority (excluding those under Environmental Laws· which are
     the subject of Section 3.25) with respect to Upland is pending or, to the Knowledge of Upland or
     a Seller, threatened. Upland is not in breach of any material agreement to which it is a party. To
I    the Knowledge of Upland or a Seller, no party to any material agreement is in material breach of
     the terms, provisions and conditions of such material agreement


I          Section 3.12 Governmental Regulation. Upland is not subject to regulation under
     the Public Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
     Commerce Act, the Investment Company Act of 1940 or any state public utilities laws..

I             Section 3.13 Litigation. Except as otherwise set forth in the Disclosure Schedule and
      except for matters involving Environmental Laws or landowner or overriding royalties (which
      are discussed in Sections 3.25 and 3.26), (a) no litigation, arbitration, investigation or other

I   · proceeding is pending or, to the Knowledge of a SCller or Upland, threatened against Upland or
      its Affiliates or its assets; (b) Upland is not subject to any outstanding injunction, judgment,
      order, decree or ruling; and (c) neither a Seller nor Upland has Knowledge of any facts that are
      likely to give rise to any litigation, arbitration, investigation or· other proceeding before any
I     Governmental Authority.

              Section 3.14 No Restrictions. Except as otherwise set forth in the Disclosure

I    Schedule, Upland is not a party to (a) any agreement, indenture or other instrwnent that contains
     restrictions with respect to the payment of dividends or other distributions with respect to its
     capital, (b) any agreement, contract or commitment relating to the making of any advance to, or
     invesbnent in, any Person (other than advances in the ordinary course of business}, or (c) any .
I    agreement, contract or commitment limiting in any respect its ability to compete with any Person
     or otherwise conduct business of any line or nature.


I             Section 3.15 Title to Non-OU and Gas Assets. Upland has good, marketable, and (in
     the case of real property) insurable title to all properties it owns or purports to own, other than the
     Ownership Interests, including (a) the properties reflected in its books and records and in the
     Upland Balance Sheet, other than those disposed of after the date of the Upland Balance Sheet in·

I    the ordinary course of business consistent with past practice, and (b) the properties referenced in
     Section 3.21 of the Disclosure Schedule, free and clear of all Liens other than Pennitted
     Encmnbrances. The Disclosure Schedule sets forth a list, by street address and deed reference, of

I    all real property owned by Upland. Upland does not lease any real property.

             Section 3.16       ~



I           (a)     Except as otherwise set forth in the Disclosure Schedule, Upland has (i) duly and
    timely filed (after taking into account all applicable extensions of time for such filings) all federal
    and all state, local and foreign returns, declarations, reports, estimates, information returns and
    statements ("Tax Returns") required to be filed by it on or before the date hereof with respect to
I   any Taxes, no extensions with respect to such Tax Returns are outstanding, and all such Tax
    Returns are true, complete and correct in all respects and were prepared and filed in accordance
    with applicable law; and (ii) timely paid, or accrued as a liability on the Upland Balance Sheet,

I   all Taxes for which Upland is liable, whether or not shown to be due on the Tax Returns.


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                                                                       APPENDIX B - Page 19
                                                                               Execution Venton
                                                                                                      I
         (b)      Except as otherwise set forth in the Disclosure Schedule, (i) no audits or other
administrative or court proceedings are presently pending or, to the Knowledge of Sellers and
                                                                                                      I
Upland, threatened with regard to any federal, state or local income or franchise Taxes of
Upland; (ii) there are no pending requests for rulings from any taxing authority, no outstanding
subpoenas or requests for information by any taxing authority with respect to any Taxes, no
proposed reassessments by any taxing authority of any property owned or leased, and no
                                                                                                     I
agreements in effect to extend the time to file any material Tax Return or the period of
limitations for the assessment or collection of any material Taxes for which Upland would be
liable; (iii) there has been no issue raised or adjustment proposed (and none is pending) by the
                                                                                                     I
Internal Revenue Service (the "IRS") or any other taxing authority in connection with any of the
Tax Returns. Sellers have delivered to Buyer true, correct and complete copies of all federal
income Tax Returns, audit and examination reports, and statements of deficiencies filed by,          I
assessed against or agreed to by Upland for all periods and will deliver to Buyer any such
documents received on or before the Closing Date immediately upon receipt.

        (c)    Except as otherwise set forth in the Disclosure Schedule, (i) there are no Liens on
                                                                                                     I
any of the assets of Upland for unpaid Taxes, other than Liens for Taxes not yet due and payable,
and (ii) Upland has no liability under Treasury Regulation § 1.1502-6 or any analogous state,
local or foreign law by reason of having been a member of any consolidated, combined or unitary
group.
                                                                                                     I
       (d)     Upland bas withheld and paid all Taxes required to have been withheld and paid
in connection with amounts paid or owing to any employee, independent contractor, creditor,
                                                                                                     I
stockholder, or other third party.

        (e)     There is no tax sharing agreement, tax allocation agreement, tax indemnity
obligation or similar written or unwritten agreement, arrangement, understanding or practice with
                                                                                                     I
respect to Taxes (including any advance pricing agreement, closing agreement or other
arrangement relating to Taxes) that will require any payment by Buyer at any time or by Upland
after the Effective Time.
                                                                                                     I
       (f)   Upland is not a party to any joint venture, partnership, contract or other
arrangement which is treated (or could be treated) as a partnership for U.S. federal income Tax
pmposes.
                                                                                                     I
         (g)

         (h)
                 Upland is not an S corporation as defined in Code Section 1361.

                 Neither Seller is a •foreign person" within the meaning of Sections 1445 and 7701
                                                                                                     I
oftheCode.

        (i)   With respect to any federal income Tax Return for which the statute of limitations     I
for assessments remains open, Upland has not engaged in any reportable transaction as defined in
United States Treasury Regulation Section 1.601 l-4{b) and has adequately disclosed on its
federal income Tax Returns any positions taken therein that would reasonably be expected to
result in any "substantial understatement of federal income tax• within the meaning of
                                                                                                     I
Section 6662 of the Code.
                                                                                                     I
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                                                                 APPENDIX B - Page 20
I                                                                                     Execution Venion

I             Section 3.17 Employee Benefit Plans. There is no "employee benefit plan", as
      defined in Section 3(3) of BRISA, (i) which is subject to any provision of BRISA, (ii) which is,
      or is required to be, maintained, administered, or contnouted to by Upland or any affiliate of
I     Upland, and (iii) which covers any employee or former employee of Upland or any affiliate of
      Upland or under which Upland or any affiliate of Upland has any liability. For purposes of this
      Section only, an "affiliate" of any Person means any other Person which, together with such

I     Person, would be treated as a single employer wider Section 414 of the Code.

              Section 3.18 Payment Contracts and Benefits. Except as otherwise set forth in the
      Disclosure Schedule, Upland is not subject to or obligated under any consulting, employment,
I     severance, termination or similar arrangement, any employee benefit, incentive or deferred
      compensation plan with respect to any Person, or any bonus, profit .sharing, pension, stock
      option, stock purchase or similar plan or other arrangement or other fringe benefit plan entered

I     into or maintained. for the ~enefit of employees or any other Person.

             Section 3.19 Accounts Receivable. All of the accounts, notes and loans receivable
      have been recorded on the books of Upland, as reflected in the Upland Balance Sheet, are bona
I     fide and represent accounts, notes and loans receivable validly due for goods sold or services
      rendered, and are reasonably expected to be collected in full within 90 days after the applicable
      invoice or note maturity date. Except for Permitted Encumbrances, all of such accounts, notes

I     and loans receivable are free and clear of any and all Liens and other adverse claims and charges,
      and none of such accounts, notes or loans receivable is subject to any offsets or claims of offset;
      and none of the obligors on such accounts, notes or loans receivable has given written notice to
      Upland that it will or may refuse to pay the full amowit or any portion thereof.
I              Section 3.20 Insurance. Upland maintains, and through· the Closing Date will
       maintain, insurance with reputable insurers in such amounts and covering such risks as are

I      generally in accordance with normal industry practice for companies engaged in businesses
       similar to those of Upland and owning properties in the same general area in which Upland
       conducts its business. The Disclosure Schedule contains a list and a brief description of all such
       insurance policies. None of such policies or binders was obtained through the use of false or
I      misleading information or the failure to provide the insurer with all information requested in
       order to evaluate the liabilities and risks insured. All such policies and binders are in full force
    · ·and effect. There is no. material default with respect to any provision contained in any such

I      policy or binder, nor has Upland failed to give any notice or present any claim under any such
       policy or binder in due and timely fashion. There are no billed but unpaid premiums past due
       under any such policy or binder. Except as otherwise set forth in the Disclosure Schedule,
       (a) there are no outstanding claims under any such policies or binders; (b) no notice of
I      cancellation or non-renewal of any such policies or binders has been received; and (c) there are
       no performance bonds outstanding with respect to Upland other than such bonds routinely
       obtained in the oil and gas industry.

I             Section 3.21 Office and Other Eouipment The Disclosure Schedule contains a list
      of all fmniture, equipment, machinery, materials, motor vehicles, tools, implements and other
      personal property owned or leased by Upland. At Closing, such personal property will continue

I     to be owned or leased by Upland, subject to such substitutions or removals thereof that occur in
      the ordinary course of business.

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                                                                       APPENDIX B - Page 21
                                                                                ExecuUon Version
                                                                                                        I
        SecUon 3.22 Title to Oil and Gas Assets. Upland has Defensible Title to all
Ownership Interests included in Upland's Oil and Gas Interests. Adjustments to the Purchase
                                                                                                       I
Price for Title Defects shall be made pursuant to Article 6 and .such Article is the sole remedy for
all matters related to title to the Ownership Interests.

       Sectton 3.23 OU and Gas OoeraUons. Except as otherwise set forth in the
                                                                                                       I
Disclosure Schedule to the Knowledge of Sellers, all wells included in the Oil and Gas Interests
of Upland have been drilled and {if completed) completed, operated and produced in accordance
with generally accepted oil and gas field practices and in compliance in all material respects with
                                                                                                       I
applicable oil and gas leases and applicable laws, rules and regulations {excluding Environmental
Laws). There are no more than seven (7) unplugged wells on expired leasehold operated by
Upland for which Upland is liable for plugging and abandonment, and reclamation.                       I
        Section 3.24 Hydrocarbon Sales Agreements. The Disclosure Schedule contains a
complete list of the Hydrocarbon Sales Agreements to which Upland is a party. Except as
otherwise set forth in the Disclosure Schedule, each Hydrocarbon Sales Agreement is valid,
                                                                                                       I
binding and in full force and effect, and no party is in material breach or default of any
Hydrocarbon Sales Agreement, and no event has occurred that with notice or lapse of time (or
both) would constitute a material breach or default or permit termination, modification or
acceleration under any Hydrocarbon Sales Agreement There are no take-or-pay, nor any hedge
                                                                                                       I
derivative contracts in place.

      Section 3.25        Environmental Matten.        Except as set forth in the Disclosure           I
Schedule:

       (a)    Upland has conducted its business and operated its assets, and is conducting its
business and operating its assets, in compliance with all Environmental Laws;
                                                                                                       I
        (b)     Upland has not been notified by any Governmental Authority or other third party
that any of the operations or assets of Upland is the subject of any investigation or inquiry by any
Governmental Authority or other third party evaluating whether any material remedial action is
                                                                                                       I
needed to respond to a release or threatened release of any Hazardous Material or to the improper
storage or disposal (including storage or disposal at offsite locations) of any Hazardous Material;    I
        {c)    Upland has not filed any notice under any Environmental Law indicating that
{i) Upland is resp0nsible for the improper release into the environment, or the improper storage
or disposal, of any Hazardous Material, or {ii) any Hazardous Material is improperly stored or
disposed of upon any property of Upland, that in either case remains unresolved;
                                                                                                       I
        (d)    Upland has no material contingent liability in connection with (i) the release or
threatened release into the environment at, beneath or on any property now or previously owned
                                                                                                       I
or leased by Upland, or {ii) the storage or disposal of any Hazardous Material; and

       (e)     Upland has not received a claim, complaint, notice, inquiry or request for
information involving any matter which remains unresolved as of the date of this Agreement
                                                                                                       I
with respect to any alleged violation of any Environmental Law or regarding potential liability
under any Environmental Law relating to operations or conditions of any facilities or property
                                                                                                       I
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                                                                                                       I
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                                                                  APPENDIX B - Page 22
I                                                                                     Execution Venton

I    (including off-site storage or disposal of any Hll1.8J'dous Material from such facilities or property)
     currently or fotmerly owned, leased or operated by Upland.

I            Section 3.26 Royalties. · With respect to Upland's Oil and Gas Interests operated by
     Upland, all landowners' royalties and overriding royalties, with respect to production from the
     Ownership Interests, have been or will be, prior to the Closing, properly and correctly paid or

I    provided for in all material respects. With respect to Upland's Oil and Gas Interests not operated
     by Upland, to Upland's and each Seller's Knowledge, all landowners royalties and overriding
     royalties, with respect to production from the Ownership Interests, have been or will be, prior to
     the Closing, properly and correctly paid or provided for in all material respects.
I            Section 3.27 Securities Matten. All securities which have been offered or sold by
     Upland have been registered pursuant to the Act and applicable state securities laws or were

-I   offered and sold pursUant to valid exemptions therefrom.

             Section 3.28 Insider Interests. Except as disclosed on the Disclosure Schedule, no
     shareholder, director, officer, or employee of Upland or any family member of any such
I    shareholder, director, officer, or employee is presently, directly or indirectly, a party to any
     transaction with Upland.

             Section 3.29 Financial Reauirements. Set forth on the Disclosure Schedule is a list
I    of all bonds, deposits, financial assurance requirements, and insurance coverage required to be
     submitted to Governmental Authorities for the continued ownership and operation of the
     business and assets of Upland.

I            Section 3.30 Bank Accounts and Powen of Attorney. Set forth on the Disclosure
     Schedule are (i) the name and address of eac.h bank or other financial institution in which Upland
     baS an account or a safe deposit box, the account and safe deposit box numbers thereof, and the
I    names of all Persons authorized to draw thereon or to have access thereto, (ii) the names of all
     Persons authorized to borrow funds on behalf of Upland and the names of all entities from which
     they are authorized to borrow funds, and (iii) the names of all Persons, if any, holding powers of

I    attorney from Upland.

              Section 3.31 Representations and Warranties Exclu!ive. TO THE FULLEST
     EXTENT PERMIITED BY APPLICABLE LAW, TIIB REPRESENTATIONS AND
I    WARRANTIES MADE BY UPLAND AND SELLERS IN TIIlS AGREEMENT AND THE
     DISCLOSURE SCHEDULE ARE IN LIEU OF AND ARE EXCLUSIVE OF ALL OTIIER
     REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION ANY

I    IMPLIED WARRANTIES. TO THE FULLEST EXTENT PERMfITED BY APPLICABLE
     LAW, UPLAND AND SELLERS HEREBY DISCLAIM ANY SUCH OTHER OR IMPLIED
     REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING TIIB DELIVERY OR
     DISCLOSURE TO BUYER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
I    REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION BY
     UPLAND OR SELLERS OR ANY OTHER PERSON IN CONNECTION WITH THIS -
     AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. NOWARRANIY

I    AND REPRESENTATION SHALL BE CONSIDERED TO COVER A SUBJECT THAT IS
     MORE SPECIFICALLY ADDRESSED BY ANOTIIBR WARRANTY AND
     REPRESENTATION.
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                                                                      APPENDIX B - Page 23
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                                                                                                             I
                                    ARTICLE4
                     REPRESENTATIONS AND WARRANTIES OF BUYER
                                                                                                            I
          Section 4.01 Organization. BuF (a) is a limited liability company duly organized,
 validly existing and in good standing under the laws of the State of Colorado, (b) has the
 requisite power and authority to own, lease and operate its properties and to conduct its business
                                                                                                            I
 as it is presently being conducted, and (c) is duly qualified to do business as a foreign limited
 liability company, and is in good standing, in each jurisdiction where the character of the
 properties owned or leased by it or the nature of its activities makes such qualification necessary.
                                                                                                            I
         Section 4.02 Authority ind Enforceabmtv. Buyer has the requisite limited liability
 company power and authority to enter into and deliver this Agreement and to consummate the
 transactions contemplated hereby. The execution and delivery of this Agreement and the
                                                                                                            I
 consummation of the transactions contemplated hereby have been duly and validly authorized by
 all necessary limited liability company action on the part of Buyer, 8nd no other limited liability
 company proceedings on the part of Buyer are necessary to authorize the execution or delivery of
                                                                                                            I
 this Agreement or to consmnmate the transactions contemplated hereby. This Agreement has
 been duly and validly executed and delivered by BuF and constitutes a valid and binding
 obligation ofBuyer enforceable against Buyer in accordance with its terms.                                 I
          Section 4.03 No Violations. The execution and delivery of this Agreement does not,
  and the consmnmation of the transactions contemplated hereby and compliance by BuF with
  the provisions hereof will not, conflict with, result in any violation of or default (with or without     I
  notice or lapse of time or both) under, give rise to a right of termination, cancellation or
· acceleration of any obligation or to the loss of a material benefit under, or result in the creation of
  any Lien on any of the properties or assets of Buyer under, any provision of (a) the certificate of
· formation or operating agreement of Buyer, (b) any loan or credit agreement, note, bond,
                                                                                                            I
  mortgitge, indenture, lease, permit, concession, franchise, license or other agreement or
  instnunent applicable to BuF, or (c) any judgment, order, decree, statute, law, ordinance, rule or
  regulation applicable to BuF, or any of its properties or assets.
                                                                                                            I
       · Section 4.04 Consents and Approvals. No consent, approval, order or authorization
 ot: registration, declaration or filing with, or permit from, any Governmental Authority is
 required by· or with respect to Buyer or in connection with the execution and delivery of this
                                                                                                            I
 Agreement by BuF or the consummation by Buyer of the transactions contemplated hereby. No
 Third Party Consent is required by or with respect to Buyer in connection with the execution and
 delivery of this Agreement or the consummation of the transactions contemplated hereby.                    I
          Section 4.05 Governmental Regulation. Neither Buyer nor any of its subsidiaries is
 subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power
 Act, the Interstate Commerce Act, the Investment Company Act of 1940 or any state public
                                                                                                            I
 utilities laws.

          Section 4.06 Litigation. There is no litigation, proceeding or investigation pending
 or, to the Knowledge of BuF, threatened against or affecting Buyer (i) that questions the
                                                                                                            I
 validity or enforceability of this Agreement or any other document, instrwnent or agreement to
 be executed and delivered by Buyer or in connection with the transactions contemplated hereby;
 (ii) that would reasonably be expected to have a Material Adverse Effect on Buyer, or (iii) that
                                                                                                            I
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                                                                     APPENDIX B - Page 24
I                                                                                 Execution Venlon

I   otherwise would reasonably be expected to interfere with Buyer's ability to perform its
    obligations hereunder.

I           Section 4.07 Funding. Buyer has available adequate liquid funds in an aggregate type
    and amount sufficient to pay (a) all amounts required to be paid to Sellers upon consummation of
    the transaction contemplated hereunder, and (b) all expenses incurred by Buyer in connection

I   with this Agreement and the transactions contemplated hereby.

           Section 4.08 Broken. No broker, finder, investment banker or other Person is or will
    be, in connection with the transactions contemplated by this Agreement, entitled to any
I   brokerage, finder's or other fee or compensation based on any arrangement or agreement made by
    or on behalf of Buyer.


I           Section 4.09 · Held for lnYestment Buyer will be acqUiring the Upland Common
    Stock pursuant to this Agreement for investment only and not with a view to the distnbution
    thereof in violation of federal or state securities laws. Buyer understands that the shares of
    Upland Common Stock it is acquiring have not been registered under the Act, or under any state
I   securities or blue sky laws and must be held indefinitely unless they are subsequently registered
    under the Act and such state laws or an exemption from such registration is available. ·

            Section 4.10 Buyer's Investfgation; Sophisticated Buyer. Prior to the Closing,
I   Buyer shall have directly and through its Representatives, at Buyer's sole expense, in cooperation
    with Sellers, made such investigation of Upland as Buyer deemed necessary or advisable, and
    Buyer acknowledges that it is and shall be relying solely on its own investigation and the

I   representations and warranties contained in this Agreement and the Disclosure Schedule in
    deciding to proceed with the purchase of the Upland Common Stock. Further, Buyer expressly
    represents that it (i) is a sophisticated purchaser owned by or employing individuals having
    substantial experience in the conduct of oil and gas business, (ii) its agents shall, prior to the
I   Closing Date, have bad the opportunity to have exercised due diligence in its examination of the
    affairs of the business of Upland, and (iii) bas not relied on any representation or warranty by
    Sellers, Upland, or Upland's agents, officers, stockholders, or employees, in entering into this

I   Agreement, except as may be expressly stated or provided herein and the Disclosure Schedule.

            Section 4.11 Absence of Certain Changes and Events. Other than as a result of
    (a) events or conditions which are of a general or industry-wide nature, or (b) events or
I   conditions pertaining to Buyer which have been disclosed in writing by Buyer to Sellers since
    June 1, 2007, there has not been any material adverse change in the financial condition,
    properties or businesses of Buyer and its subsidiaries taken as a whole.

I          Section 4.12 Compliance with Law. The business of Buyer and its subsidiaries is not
    being conducted in violation of any applicable law, ordinance, regulation, decree or order of any
    governmental entity, except for violations which either individually or in the aggregate do not
I   and are not expected to have a Material Adverse Effect on the financial condition, properties or
    businesses of Buyer and its subsidiaries taken as a whole.


I         Section 4.13 No Undisclosed Liabilities. There are no liabilities of Buyer of any kind
    whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, that

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                                                                  APPENDIX B - Page 25
                                                                                      Execution Venlon
                                                                                                               I
 are reasonably likely to have a Material Adverse Effect on Buyer's ability to consummate the
 transactions set forth in this Agreement                                                                      I
                                               ARTICLES
                                              COVENANTS                                                        I
         Section 5.01     Conduct of Business by Upland and Sellers Pending Closing. Sellers
 covenant and agree with Buyer that, from the date of this Agreement until the Closing Date,
 Upland will, and Sellers will cause Upland to, conduct its business only in the ordinary and usual
 course consistent with past practices. Notwithstanding the preceding sentence, Sellers covenant
                                                                                                              I
 and agree with Buyer that, except as specifically contemplated in this Agreement or as disclosed
 in the Disclosure Schedule, from the date of this Agreement until the Closing Date, without the
 prior written consent of Buyer, Sellers will cause Upland to comply with the following:
                                                                                                              I
         (a)     Upland will not (i) amend its certificate or articles of incorporation or by-laws;
 (ii) split, combine or reclassify any of its outstanding capital stock; (iii) issue, sell or agree to
 issue or sell any securities, including its capital stock, any rights, options or wammts to acquire
                                                                                                              I
 its capital stock, or securities convert:J.'ble into or exchangeable or exercisable for its capital stock;
 (iv) purchase, cancel, retire, redeem or otherwise acquire any of its outstanding capital stock or
 other securities; (v) merge or consolidate with, or transfer all or substantially all of its assets to,
                                                                                                              I
 another corporation or other business entity; (vi) liquidate, wind-up or dissolve (or suffer any
 liquidation or dissolution); or (vii) enter into any contract, agreement, commitment or
 arrangement with respect to any of the foregoing.                                                            I
          (b)     Upland will not (i) acquire any corporation, partnership or other business entity or
  any interest therein (other than interests in joint ventures, joint operation or ownership
  arrangements acquired in the ordinary course of business); (ii) elect to participate in the drilling,
                                                                                                              I
  workover, completion, recompletion, plugging and abandonment of any well or sell, lease or
  sublease, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any Oil and
  Gas Interest of Upland with an Allocated Value in excess of $50,000, in the aggregate, or any
  other assets that have a value at the time of such sale, lease, sublease, transfer or disposition in
                                                                                                              I
  excess of $50,000, in the aggregate (except that this clause shall not apply to the sale of
  Hydrocarbons in the ordinary course of business); (iii) farm-out any Oil and Gas Interest of
· Upland or interest therein; (iv) make any material loans, advances or capital. contn'butions to, or
                                                                                                              I
  investments in, any Person; (v) enter into any material agreement or any other agreement not
  terminable by Upland upon notice of thirty (30) days or less and without penalty or other
  obligation (including Hydrocarbon Sales Agreements entered into in the ordinary course of
  business); or (vi) enter into any contract, agreement, commitment or arrangement with respect to
                                                                                                              I
  any of the foregoing. Sellers shall cause Upland to use reasonable efforts to consult with Buyer's
  designated Representative as to any matter covered by this Section S.Ol(b).                                 I
         (c)     Upland will not (i) incur any indebtedness for borrowed money; (ii) inCW' any
 other obligation or liability (other than liabilities incurred in the ordinmy course of business and
 consistent with past practices); (iii) assume, endorse (other than endorsements of negotiable
 instruments in the ordinary course of business), guarantee or otherwise become liable or
                                                                                                              I
 responst'ble (whether directly, contingently or otherwise) for the liabilities or obligations of any
 Person; or (iv) enter into any contract, agreement, commitment or arrangement with respect to
 any of the foregoing.
                                                                                                              I
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                                                                      APPENDIX B - Page 26
I                                                                                   Execution Venion

I           (d)     Upland will use its reasonable best efforts to operate, maintain and otherwise deal
    with its Oil and Gas Interests in accordance.with good and prudent oil and gas field practices.

I           (e}     Upland shall not resign, transfer or otherwise voluntarily relinquish any right it
    has as of the date of this Agreement, as operator of any Oil and Gas Interest. ·

           (f)     Upland will not (i} enter into, or otherwise become liable or obligated under or
I   pursuant to, (1) any employee benefit, pension or other plan (whether or not subject to BRISA),
    (2) any other stock option, stock purchase, incentive or deferred compensation plans or
    arrangements or other fringe benefit plan, or (3) any consulting, employment, severance,

I   termination or similar agreement with any Person, or amend or extend any such plan,
    arrangement or agreement; (ii) grant, or otherwise become liable for or obligated to pay, any
    severance or termination payments, bonuses or increases in compensation or benefits to, or
    forgive any indebtedness of, ai:J.y employee or consultant; or (iii) enter into any contract,
I   agreement, commibnent or arrangement to do any of the foregoing.

           (g)    Upland will keep and maintain accurate books and records in the same manner as

I   such books and records are kept and maintained currently.

            (h}     Upland will not create, incur, assuII1e or permit to exist any Lien on any of its
    assets, except for Permitted Encumbrances incurred or created in the ordinary course of business.
I            (i)      Upland will (1) pay all Taxes, assessments and other governmental charges
    imposed upon any of its assets or with respect to its franchises, business, income or assets that

I   have become due and payable before any penalty or interest accrues thereon; (2) pay all claims
    (including claims for labor, services, materials and supplies) that have become due and payable
    and which by law have or may become a Lien upon any of its assets prior to the time when any
    penalty or fine shall be incurred with respect thereto or any such Lien shall be imposed thereon;
I   and (3) comply in all material respects with the requirements of all applicable laws, rules,
    regulations and orders of any Governmental Authority, obtain or take all Governmental Actions
    necessary in the operation of its businesses, and comply with and enforce the provisions of all

I   material agreements, including paying when d~ all rentals, royalties, expenses and other
    liabilities relating to their businesses or assets; provided, that Upland may contest the imposition
    of any such Taxes, assessments and other governmental charges, any such claim, or the
    requirements of any applicable law, rule, regulation or order or any material agreement if done so
I   in good faith by appropriate proceedings and if adequate reserves for such contested amounts are
    already reflected on the Upland Balance Sheet or are established with Buyer's consent

           (j}     Upland will maintain in full force and effect the policies or binders of insurance
I   descn'bed in Section 3.20.

            (k)     Sellers and Upland will keep Buyer informed of and shall consult with Buyer

I   concerning all material operations, or proposals for operations, affecting the Oil and Oas Interests
    and other assets of Upland; provided, however, that' all operations pertaining to casing, fracturing
    and completion designs for the Eubank #1-44 Well shall be governed by that certain Agreement
    for the Completion of Eubank 44 - Well #1 entered into by and between Upland and Buyer on
I   the 21 • day of August, 2007.

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                                                                     APPENDIX B - Page 27
                                                                               Execution Venion
                                                                                                        I
         Section 5.02

        (a)
                            Access to Assets. Penonnel and Information.

               From the date of this Agreement until the Closing Date, Upland and Sellers shall .
                                                                                                        I
afford to Buyer and Buyer Representatives, at Buyer's sole risk and expense, reasonable full
access to any of the assets, books and records, contracts, representatives, agents and facilities of
Upland, including all data necessmy for Buyer to fully audit Upland's financials and balance
                                                                                                        I
sheet. Owing such period, Upland · or Sellers will make available Buyer Representatives
adequate office space and facilities as available at the office of Upland in Canadian, Texas.
Sellers shall and shall cause Upland's Representatives to, use their reasonable best efforts to         I
provide Buyer's Representatives with requested files, existing reports and other existing
information.

         (b)     Buyer and Buyer Representatives shall have the right to conduct a Phase I
                                                                                                        I
Environmental Audit, make a physical assessment of the assets of Upland and, in connection
therewith, shall have the right to enter and inspect such assets and all buildings and
improvements thereon, and generally conduct such tests, examinations, investigations and               I
studies, as Buyer deems necessary, desirable or appropriate for the preparation of engineering or
other reports relating to such assets, their condition and the presence of Hazardous Materials.
Sellers and Upland shall be provided at least twenty-four (24) hours prior notice of such
activities, and Sellers and Upland Representatives shall have the right to witness all such tests
                                                                                                       I
and investigations. Buyer shall (and shall cause Buyer Representatives to) keep any data or
information acquired by any such examinations and the results of any analyses of such data and
information strictly confidential and will not (and will cause Buyer Representatives not to)           I
disclose any of such data, information or results to any Person unless otherwise required by law
or regulation and then only after written notice to Sellers and Upland of the determination of the
need for disclosure. Immediately upon its receipt thereof: Buyer shall provide Sellers with an
actual, correct and complete copy of all data, reports, analyses, estimates and advice Buyer
                                                                                                       I
acquires in connection with any examination of the Oil and Gas Interests, which information
Sellers shall keep confidential, and which information Sellers shall return to Buyer at such time
as Sellers have no further potential obligations to Buyer under Section 11.02 with respect to the
                                                                                                       I
warranty and representation in Section 3.25. Buyer hereby releases Upland and Sellers from any
loss, liability or claim arising out of, and shall indemnify, defend and hold Upland and Sellers
and their Representatives harmless from and against, any and all losses, liabilities and claims to
the extent arising out of or as a result of the activities of Buyer and Buyer Repres~tatives on the
                                                                                                       I
assets of Upland in connection with conducting such environmental and physical assessment,
except to the extent of and limited by the gross negligence or willful misconduct of Upland or
Sellers or any representative thereof.
                                                                                                       I
       (c)    Buyer will maintain as confidential and will not (and will cause Buyer
Representatives not to), use any information obtained pursuant to this Section 5.02 for any
purpose unrelated to the consummation of the transactions contemplated by this Agreement.
                                                                                                       I
        (d)    Notwithstanding anything in this Section 5.02 to the contrary, (i) neither Upland
nor Sellers shall be obligated under the terms of this Section 5.02 to disclose to Buyer or Buyer
Representatives, or grant Buyer or Buyer Representatives access to, information that is within
                                                                                                       I
their possession or control but subject to a valid and binding confidentiality agreement with a
third party without first obtaining the consent of such third party, and Sellers, to the extent        I
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                                                                                                       I
                                               872

                                                                APPENDIX B - Page 28
I                                                                                     Execution Venton

I   reasonably requested by Buyer, will use reasonable commercial efforts to obtain any such
    consent

I           Section 5.03 Additional Arrangements. Subject to the terms and conditions herein
    provided, Sellers, Upland, and Buyer shall take, or cause to be taken, all action and shall do, or
    cause to be done, all things necessary, appropriate or desirable under any applicable laws and

I   regulations or under applicable governing agreements to consummate and make effective the
    transactions contemplated by this Agreement, including using its reasonable efforts to obtain all
    necessary waivers, consents and approvals and effecting all necessary registrations and filings.
    Sellers, Upland, and Buyer shall take, or cause to be taken, all action or shall do, or cause to be
I   done, all things necessary, appropriate or desirable to cause the covenants and conditions
    applicable to the transactions contemplated hereby to be performed or satisfied as soon as
    practicable. In addition, if any Governmental Authority shall have issued any order, decree,

I   ruling or injunction, or taken any other action that would-have the effect of restraining, enjoining
    or otherwise proluDiting or preventing the consummation of the transactions contemplated
    hereby, each of Sellers, Upland, and Buyer shall use its reasonable efforts to have such order,
    decree, ruling or injunction or other action declared ineffective as soon as practicable.
I           Section 5.04 Public Announcements. Prior to the Closing and for thirty (30) days
    thereafter, Sellers, Upland, and Buyer will consult with each other before issuing any press

I   release or otherwise making any public statements with respect to the transactions contemplated
    by this Agreement and shall use diligence, restraint and good faith in attempting to accommodate
    the reasonable requests of the other party to limit or complete information in such press release;
    provided, however, the foregoing shall not prevent either party, after complying with the
I   foregoing, from making a public disclosure it believes in good faith upon advice of counsel is
    required by applicable law.


I           Section 5.05 Payment of Expenses. Buyer and Sellers shall each pay its or their (as
    applicable) respective fees and expenses incident to preparing for, entering into and carrying out
    this Agreement and the consummation of the transactions contemplated hereby. Without
    limiting the foregoing, Upland shall not bear any of the Sellers' fees and expenses referenced in
I   the immediately preceding sentence.

             Section 5.06 Operations. · Exeept .as otherwjse provided fol: ·in the ·Transition
    Agreement, Buyer shall, or shall cause Upland to, subject to the applicable terms of existing
I   operating agreements, take over operations as of 7:00 a.m. local time at the wellsites on the day
    after the Closing Date, with respect to Upland-operated wells included in the Oil and Gas
    Interests. Upon taking over operations, Buyer will, or will cause Upland to, post all necessary
I   state, federal and lOcal bonds and shall assist SelleiS in having Sellers' existing bonds released, or
    in the alternative, having the wells so operated by Buyer or Upland released from Sellers' existing
    bond. Sellers shall use their reasonable best efforts (without the expenditure of funds or

I   prosecution of litigation) to assist Buyer in retaining operatorship or succeeding to operatorship
    of the Oil and Gas Interests.

            Section 5.07       Adlustments to the Financial Statements.

I          (a)   On or before five (5) days prior to Closing, Sellers shall prepare and submit to
    Buyer for Buyer's review and approval, an audited balance sheet of Upland (the "Effective Date
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                                                  873

                                                                     APPENDIX B - Page 29
                                                                                Execution Venlon        I
Balance Sheet") prepared in accordance with OAAP as of June 30, 2007. The Purchase Price
shall be adjusted as appropriate at Closing to reflect the positive or negative change in the           I
Effective Date Balance Sheet, but only as to the difference that the "cwrent assets" (for purposes
of this paragraph only, this amount shall be referred to as the "Assets") as reflected on the
Effective Date Balance Sheet exceeds the "cum:nt liabilities" (for purposes of this paragraph
only, this amount shall be referred to as the "Liabilities"). If the amount of Assets exceeds the
                                                                                                        I
Liabilities as shown on the Effective Date Balance Sheet, the Purchase Price shall be adjusted
upward by that amount. If the amount of Liabilities exceeds the Assets as shown on the Effective
Date Balance Sheet, the Purchase Price shall be reduced by that amount.
                                                                                                        I
         (b)     If the parties fail to agree on the Effective Date Balance Sheet and the appropriate
 adjustments to the Purchase Price to be made as a result thereof, the disputed items shall be
 resolved by binding arbitration submitting the same to the accounting firm of Ernst and Young,
                                                                                                        I
 LLP (Denver, Colorado office) (the "Accounting Arbitrator"). The Accounting Arbitrator shall
 resolve disputes regarding any such adjustments within thirty (30) days of submittal by the
 parties of the relevant materials for review taking into account, among other things, the
                                                                                                        I
 likelihood the disputed item will cause Buyer to not receive value bargained for under this
 Agreement, the length of time that the item has been treated by Upland or its predecessors in the
 manner Sellers have asserted on the Effective Date Balance Sheet, and the industry custom and
·practice of treatment for the disputed item. The decision of the Accounting Arbitrator shall be
                                                                                                        I
 final and binding on the parties and shall not be subject to appeal to a court that may have
 jurisdiction over disputes between the parties. The fees and expenses of the Accounting
 Arbitrator' shall be borne equally by Sellers and Buyer. Any amounts owed by either party as a
                                                                                                        I
 result of the Accounting Arbitrator that were not paid at Closing as an adjustment to the Purchase
 Price pmsuant to Section 2.02 shall be paid to the other party within five (5) days of the decision
 of the Accounting Arbitrator.                                                                          I
        (c)   Subsequent to agreement as to the Effective Date Balance Sheet, Sellers may
receive payments for pre-Effective Time amounts owed to Upland for the sale of Hydrocarbons
which were not reflected as a "receivable" on the Effective Date Balance Sheet. Sellers shall
                                                                                                        I
promptly remit to Buyer that portion of such amounts that are payable to a third party (such as
royalty owners, other working interest owners, or taxing authorities).

        (d)     Subsequent to agreement as to the Effective Date Balance Sheet, Sellers may
                                                                                                        I
receive an invoice for payment of money by Upland attn'butable to goods and services provided
to Upland prior to the Effective Time which were not reflected as a "payable" on the Effective
Date Balance Sheet. Sellers shall forward such invoice to Buyer for payment and shall remit to          I
Buyer that portion of the invoice attributable to Upland. Buyer shall be responsible for collecting
that portion of the invoice payable by a third party (such as other working interest owners).

        (e)    Subsequent to agreement as to the Effective Date Balance Sheet, Buyer may
                                                                                                        I
receive payments for pre-Effective Time amounts owed to Upland for the sale of Hydrocarbons
which were not reflected as a "receivable" on the Effective Date Balance Sheet. Buyer shall remit
to Sellers the monies received less that portion of such amounts that are payable to a third party
(such as royalty owners, other working interest owners, or taxing authorities).
                                                                                                        I
         (f)     Subsequent to agreement as to the Effective Date Balance Sheet, Buyer may
receive an invoice for payment of money attn'butable to goods and services provided to Upland
                                                                                                        I
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                                                                  APPENDIX B - Page 30
I                                                                                   Execution Venion

I   prior to the Effective Time which were not reflected as a "payable" on the Effective Date Balance
    Sheet. Buyer shall pay such invoice and Sellers shall promptly pay to Buyer, after receipt of an
    invoice from Buyer, that portion of the invoice attribµtable to Upland. Buyer shall be responsible
I   for collecting that portion of the invoice payable by a third party (such as other worlcing interest
    owners).


I          (g)     Upland shall be entitled to use or distn'bute cash received attn'butable to the Oil
    and Gas Interests of Upland provided the distn'bution does not adversely affect Upland's ability to
    conduct its business in its usual and customary manner. In the event Closing does not occur on or
    before November 1, 2007, the Purchase Price shall be decreased at Closing for the cash so used
I   by Upland subsequent to November 1, 2007. Fmther, the Purchase Price shall be decreased at
    Closing for the amount that has been distn'buted to Sellers from Upland between July 1, 2007
    and the Closing Date in the form of a dividend or other distn'bution that is not used in the

I   business of Upland, but rather for the benefit of Sellers.

            Section 5.08        Tax Matten.


I          (a)     Payment and Apportionment of Real Property Taxes and Personal Property Taxes.
    With respect to real property taxes and personal property taxes:

                     (i)    Real and Personal Property Taxes. All ad valorem taxes, real property
I           taxes and personal property taxes that are based on or measured by production for the
            year in which the Effective Time occurs shall be apportioned as of the Effective Time
            between Sellers and Buyer. As to all such ad valorem, real and personal property taxes,

I           Sellers shall be responsible for all taxes based on or measured by production occurring
            prior to the Effective Time. Buyer shall file all required reports and returns incident to
            such taxes and shall be responsible for all such taxes based on or measured by production
            occurring on and after the Effective Time. For all such real and personal property taxes,
I           other than taxes based on or measured by oil and gas production, Sellers shall be liable
            for the portion of such taxes based upon the number of days in the year occmring prior to
            the Effective Time, and Buyer shall be liable for the portion of such taxes based upon the

I           number of days in the year occurring on and after the Effective Time. Buyer shall file all
            required reports and returns incident to these taxes and shall remit to the appropriate
            taxing authorities all taxes for the year in which the Effective Time occurs that are not ·
            paid by Sellers as of the Closing Date. Sellers shall pay to Buyer, at the time of Buyer's
I           rcnrittance, Sellers' share of such taxes to the extent such amounts were not credited to
            Buyer in calculating adjustments in the Purchase Price in Section 2.02 or accrued on the
            Upland Balance Sheet.

I                   (ii)   yability and Right to Purchase Claims. Sellers shall retain liability for all
            adjustments, examinations or claims relating to taxes that are paid by Sellers and that are
            allocated to Sellers pursuant to this Section 5.08. Buyer shall retain liability for all
I           adjustments, examinations or claims relating to taxes that are paid by Buyer and that are
            allocated to Buyer pursuant to this Section 5.08. Sellers shall administer and defend any
            examination, claim or adjustments arising in connection with taxes to be paid by Buyer

I           but which are allocated to Sellers pursuant to this Section 5.08.


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                                                  875

                                                                    APPENDIX B - Page 31
                                                                                  Execution Venion
                                                                                                           I
                 (iii) Taxes Relating to Production. All excise, prod~on, severance, gross
         receipts, conservation, oil and gas severance and other similar taxes relating to production
                                                                                                           I
         of Hydrocarbons attributable to the Oil and Gas Interests prior to the Effective Time shall
         be allocated to Sellers, and all such taxes relating to production on or after the Effective
         Time shall be allocated to Buyer. Buyer shall file any reports or returns not filed as of the
         Closing, and shall remit to the proper taxing authorities any such taxes allocated to
                                                                                                           I
         Sellers, but not paid as of the Closing. Sellers shall pay Sellers' share of such taxes at the
         time Buyer remits such taxes to the extent such amounts were not credited to Buyer in the
         Purchase Price as adjusted pursuant to Section 2.02 or accrued on the Upland Balance
         Sheet. ..
                                                                                                          I
        (b)      Sales Taxes. The Purchase Price does not include any sales taxes or other transfer
taxes imposed in connection with the sale of the Upland Common Stock. Buyer shall pay any
                                                                                                          I
sales tax or other transfer tax, as well as any applicable conveyance, transfer and recording fee,
and real estate transfer stamps or taxes imposed on or related to the transfer of the Upland
Common Stock pursuant to this Agreement. Buyer shall defend and indemllify Sellers against
                                                                                                          I
and hold Sellers harmless from any loss, liability or claim, including penalties and interest,
resulting from such matters. The parties shall cooperate with each other and with their respective
Afiiliates in obtaining any exemptions from any sales or other transfer taxes that may be due as a
result of the transactions contemplated in this Agreement.
                                                                                                          I
          (c)     Tax Proceedings. In the event Buyer receives notice of any examination, claim,
  adjustment or other proceeding relating to the liability for taxes for any period Sellers are or may    I
 be liable under Section (a)(ii) above. Buyer shall notify Sellers in writing within thirty (30) days
  of receiving notice thereof. As to any such taxes for which Sellers are or may be liable under
  Section (a)(ii) above Sellers shall, at their expense, control or settle the contest of such
  examination, claim adjustment or other proceeding, and shall indemllify Buyer against all losses,
                                                                                                          I
  damages, costs, expenses, liabilities, claims, demands, penalties, fines, assessments, settlements,
  and any related expenses in connection therewith. In the event of an adjustment, or other
  proceeding relating to the liability for taxes for any period Buyer is or may be liable under
                                                                                                          I
  Section (a)(ii) above. Sellers shall notify Buyer in writing within thirty (30) days of receiving
 notice thereof. As to any such taxes for which Buyer is or may be liable under Section (a)(ii)
 Buyer shall, at Buyer's expense, control or settle the contest of such examination, claim,
  adjustment, or other proceeditig, and shall indemnify Sellers against all losses, damages, costs,
                                                                                                          I
  expenses, liabilities, claims, demands, penalties, fines, assessments, settlements, and any related
  expenses in connection therewith.· The parties shall cooperate with each other and with their
 respective affiliates in the negotiations and settlement of any proceeding descnbed in this
                                                                                                          I
  Section 5.08. Each party shall provide, or cause to be provided, to the other party necessary
  authorizations, including powers of attorney, to control any proceeding which such party is
· entitled to control.                                                                                    I
        (d)     Income Taxes. Buyer shall cause Upland to pay all federal income and state
income end franchise Taxes due for any taxable year or taxable period commencing before end
ending after the Closing Date (the nstraddle Period"). Upon notice from Buyer, Sellers shall pay          I
to Upland prior to the date for which any payment for such taxes is due, an amount equal to the
excess, if any, of (i) the amount of such taxes that would have been due if the Straddle Period had
ended on the Closing Date (using an interim-closing-of-the-books method, except that                      I
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                                                                   APPENDIX B - Page 32
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I    exemptions, allowances, and deductions that are otherwise calculated on an annual basis (such as
     deductions for depreciation and depletion) shall be apportioned on a per diem basis and the

I    deduction for real and personal property taxes and production taxes shall be allocated the same as
     the liability for such taxes is allocated in Sections 5.0S(a)(i) and (iii) less (ii) the sum of such
     taxes for the Straddle Period (A) that have been accrued as a liability on the Upland Balance
     Sheet or credited to Buyer in calculating adjustments in the Purchase Price in Section 2.02 or

I   ·(B) paid prior to the Closing Date by Upland or by Sellers or an affiliate thereof with respect to
     Upland. For purposes of this Section 5.0S(d), the term "Straddle Period" includes the Texas
     franchise tax privilege period for the calendar year after the Effective Time to the extent that the

I    tax for such period is computed based on Upland's revenues and deduction for the calendar year
     that includes the Effective Time.

           (e)     Adjustment. Any adjustments made pursuant to this Article shall be considered

I   adjustments to the Purchase Price.

            Section 5.09 Upland Name Change. Within ten (10) days after Closing Buyer shall
    file the appropriate documents with the Secretary of State of Texas, and promptly thereafter
I   Buyer shall file the appropriate documents in all other states where Upland is registered as a
    foreign corporation to cause the name of Upland to be changed so that "Upland" is removed from
    the cmporate name of Upland. Buyer shall not otherwise use the name "Upland" or any similar

I   name for any purpose.

           Section 5.10 Signs. Within sixty (60) days of Closing, Buyer shall cause the name of
    Upland or any reference to Upland, to be removed from any signs located on or about any of the

I   Oil and Gas Interests.

            Section 5.11      Preferential Right to Purchase.

I           (a)      Jn the event Sellers or any of their respective Affiliates (which, with respect to
    Bailey Peyton shall include Peyton Oil & Gas), either directly or indirectly, acquires any oil and
    gas leasehold interests in the lands in which Upland owns a leasehold interest as of the Effective

I   Date or Closing Date, or within a one mile radius Slll'l'Ounding such lands, for a period of two (2)
    years from the Closing Date, Sellers shall notify Buyer immediately after any such acquisition,
    giving complete information as to the interests acquired, along with copies of the instrument or
    instruments by which the interest was acquired, and the consideration to be given or paid. Buyer
I   shall have thirty (30) days following receipt of such notice to notify Sellers of Buyer's desire to
    acquire (or to cause its Affiliates to acquire) all or any part of any such interest by paying Sellers
    (or their Affiliate, as applicable) for such Seller's (or their Affiliate's) cost to acquire such interest

I   or part thereo:t: Thereupon. Sellers (or their Affiliate, as applicable) shall immediately assign
    such interest to Buyer, with special warranty of title, in an instrument in form and substance
    approved by Buyer and Sellers in writing, which approval shall not be unreasonably withheld.

I            (b)     In the event Sellers or any of their respective Affiliates (which, with respect to
    Bailey Peyton shall include Peyton Oil & Gas), either directly or indirectly, currently owns or
    acquires any oil and gas mineral interests or rights in the lands in which Upland owns a leasehold

I   interest as of the Effective Date or the Closing Date or within a one mile radius surrounding such
    lands, that, with respect to any such interest currently owned by Sellers or their Affiliates, are not
    cmrently subject to an oil and gas lease granted to a third party, for a period of two (2) years from
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                                                                          APPENDIX B - Page 33
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                                                                                                         I
the Closing Date, Sellers shall notify Buyer immediately after any such acquisition, and shall
offer Buyer the right to lease such oil and gas mineral interests or rights on the same terms as are     I
contained in the form of lease attached hereto as Exhibit C (except containing a $185 an acre
bonus to the lessor).

                                       ARTICLE6
                                                                                                         I
                           TITLE AND ENVIRONMENTAL MATl'ERS

        Section 6.01        Title Defect Ad!ustments.                                                    I
       (a)     Each Ownership Interest of Upland set forth on Schedule l.Ol(a) shall constitute a
separate asset for purposes of this Article 6 and a Title Defect that pertains to more than one
Ownership Interest shall be considered a separate Title Defect as to each Ownership Interest
                                                                                                         I
         (b)     Buyer shall give Sellers written notice of Title Defects on or before October 18,
2007. Such notice shall be in writing and shall include: (i) a description of the Title Defect,
(ii) the Allocated Value of the Ownership Interest affected by the Title Defect, (iii) the amount by
                                                                                                         I
which Buyer believes the Allocated Value of such Ownership Interest has been reduced because
of such Title Defect and the reasoning therefor, and (iv) supporting documentation, including
title opinions, title claims, or other data that evidences the Title Defect. Buyer shall be deemed to
                                                                                                        I
have waived all Title Defects of which Sellers have not been given timely notice by Buyer and all
Title Defects for which a remedy is not provided under this Article 6.

        (c)     If an Ownership Interest is affected by a Title Defect, the Pmchase Price shall be
                                                                                                        I
reduced by the net reduction in value of the pertinent property caused by the Title Defect (the
"Defect Amount") based on the criteria listed in Section 6.0l(d) as well as the likelihood that the
Title Defect will cause a title failure (considering such matters as the length of time the Title
                                                                                                        I
Defect has existed without being subject to an adverse claim, the producing status of the
property, the nature of the Title Defect, whether the potential claimant bas executed a division
order and/or received proceeds without asserting the title claim, and all of the other factors
considered in connection with determining whether a matter is a Permitted Encumbrance) and
                                                                                                        I
also taking into account the method for attributing the Allocated Value for the relevant property,
the legal and practical effect of the Title Defect or other breach, the probability of adverse impact
of the Title Defect or breach of title warranty on the use and enjoyment of the property interest
                                                                                                        I
affected, and the predicted duration of the Title Defect or breach of title warranty over the life of
the property involved. The amount of any reduction shall not exceed the Allocated Value of the
Oil and Oas Interest of Upland in question. A Purchase Price adjustment will not be made for
any Title Defect that, when aggregating such Title Defect with all other Defect Amounts
                                                                                                        I
affecting one Lease/Unit as shown on Schedule l.Ol(a), has Defect Amounts ofless than $5,000.
A Purchase Price adjustment will not be made~ prior to October 25, 2007, at Sellers' election:
(i) the Title Defect has been cured (consistent with the standards contained herein), or (ii) for
                                                                                                        I
Title Defects for which there is a mere risk of title failure, Sellers agree to indemnify Buyer
against all losses, costs, expenses and liabilities with respect to such Title Defect up to Allocated
Value thereof.                                                                                          I
        (d)     Without limiting Sellers' right to dispute the existence of a Title Defect and
subject to the factors listed in Section 6.0l(c) that may cause the Defect Amount of a Title Defect
                                                                                                        I
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                                                                 APPENDIX B - Page 34
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I   to be less than the maximum potential economic effect of the Title Defect, the Defect Amount
    shall take into account the following:

I                 (i)      If the Title Defect relates to failure of title to the entirety of Upland's title
            to an Ownership Interest, the maximum amount of the Defect Amount shall be the
            amount set forth as the value for that Ownership Interest in Schedule 1.01 (a).

I                  (ii)    If the Title Defect results from a Lien, security inU;rest, pledge or collateral
            assignment upon one or more Ownership Interest (or a portion thereof) which is
            liquidated in amount, then the maximum amount of the Defect Amount shall be the
I           amount necessary to remove such lien, security interest, pledge or collateral assignment
            from Upland's title to such one or more Ownership Interests (or portion thereof).


I                   (iii) If the Title Defect results from Upland having a lesser NRI in an
            Ownership Interest than the NRI specified therefor in Schedule l.Ol(a), the maximum
            amount of the Defect Amount shall be equal to the product obtained by multiplying the
            value for that NRI in Schedule 1.0l(a), by a fraction, the numerator of which is the
I           reduced NRI and the denominator of which is the NRI specified for such Ownership
            Interest in Schedule 1.0l(a).


I                  (iv) If the Title Defect results from Upland having a greater WI in an
            Ownership Interest than the WI specified therefor in Schedule l.Ol(a), the maximum
            amount of the Defect Amount shall be equal to the present value (discounted at 10%
            compounded annually) of the increase in Buyet's Projected Costs with respect to such
I           Ownership Interest for the period from and after the Effective Time which is attnlmtable ·
            to such increase in the WI.

                      (v)     If the Title Defect results from any matter not descn'bed in paragraph (i),
I           (ii}, (iii), or (iv) above, then the maximum amount of the Defect Amollllt shall be a
          . portion of the value set forth for that Ownership Interest in Schedule 1.0l(a), said portion
            to be equal to the differences between the value of Upland's title to such .Ownership

I           Interest without such Title Defect and with such Title Defect'<assuming the value without
            such Title Defect to be the value set forth in Schedule l.Ol(a)).

                    (vi) If a Title Defect is not effective or does not affect Upland's title to an
I           Ownership Interest throughout the entire productive life of such Ownership Interest, such
            fact shall be taken into account in determining the Defect Amount.


I                   (vii) If a Title Defect affects only a portion of an Ownership Interest (as
            contrasted with an undivided interest in the entirety of such Ownership Interest) and a
            portion of the Purchase. Price has not been allocated specifically to such portion of an
            Ownership Interest in Schedule 1.0l(a), then for purposes of computing the Defect
I           Amount, the Purchase Price allocated to such Ownership Interest shall be further
            allocated among the portions of such Ownership Interest in a fair and reasonable manner
            taking into account the values set forth in Schedule 1.0l(a).

I                 (viii) A Title Defect shall not. result from a clerical, typographical or
            mathematical error in the computation of Upland's WI or NRI as set forth in


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                                                                                                        I
        Schedule l.Ol(a) and correction thereof would not be applied to the aggregate value of all
        Title Defects. Should such error be found, Buyer shall be entitled to a reduction in the
                                                                                                        I
        Purchase Price based on the Allocated Value set forth on Schedule 1.0l(a).

         (e)    Notwithstanding anything herein to the contrary, if Sellers are unable to cure a
 Title Defect on or prior to Closing, Sellers shall have the option, by notice in writing to Buyer on
                                                                                                        I
 or before Closing, to attempt to cure such Title Defect (a "Post-Closing Defect") within the
 ninety (90) day period commencing on the Closing Date (the "Cure Period"). In such event, the
 transactions contemplated hereby will close as provided herein and the Purchase Price shall be
                                                                                                        I
 reduced by the applicable Title Defect Amotmt in respect of such Post-Closing Defect as
 provided in this Section 6.01. If, during or upon the expiration of the Cure Period, Sellers and
 Buyer mutually agree that a Post-Closing Defect has been cured, then within two (2) business
 days after such determination, Buyer shall tender to Sellers an amotmt equal to the Title Defect
                                                                                                        I
 AmolDlt {and, for the avoidance of doubt, without interest) in respect thereof. If, dilling or upon
.the expiration of the Cure Period, Sellers and Buyer are unable to agree whether there has been a
 satisfactory cure of a Post-Closing Defect, then such disagreement shall be resolved by the
                                                                                                        I
 method provided in Section 6.0l(f).

         (f)    To the extent Sellers and Buyer can reach agreement prior to Closing under
Section 6.0l(c) as to any particular Title Defect, the Purchase Price shall be adjusted Wlder
                                                                                                        I
 Section 2.02 for such agreed-upon amoWlts. As to all remaining Title Defects, Sellers and Buyer
shall attempt in good faith to reach agreement under (c) above by October 25, 2007, and as to
Title Defects for which the parties can reach agreement, any monies that are owed shall be paid
                                                                                                        ·I
by the owing party to the other party at Closing through adjustments of the Purchase Price. If the
Sellers and Buyer are unable to agree on the extent of the adjustment to the Purchase Price
relative to any Title Defect by October 25, 2007, the dispute shall be submitted to binding
arbitration before a mutually agreeable arbitrator with at least ten (10) years experience in oil and
                                                                                                        I
gas title matters (the "Title Arbitrator"). The Title Arbitrator shall resolve the dispute within
thirty (30) days of submittal of the relevant documentation by the parties. The decision of the
Title Arbitrator is final and is not subject to appeal by the partie8 to any court that may have
                                                                                                        I
jurisdiction. If the decision of the Title Arbitrator requires payment of funds, the party required
to pay such amounts shall pay the other party within five (5) days of the arbitrators decision.
Fees and expenses of the Title Arbitrator shall be borne equally by the parties.                        I
        (g)     If there is any inaccuracy in Schedule l.Ol(a) that results in an increase in the
value of an Oil and Gas Interest, the amount of increased value (a "Credit Adjustment"),
determined in a similar manner as a reduction for a Title Defect is determined, shall only be a
                                                                                                        I
credit against any reductions to the Purchase Price for Title Defects. Credit Adjustments, if any,
only shall reduce Sellers' obligation to make any payments to Buyer or to suffer reduction of the
Purchase Price under Articles 3, 6 or 11 of this Agreement, and shall not serve to increase the
Purchase Price other than offsetting such reductions; Buyer shall promptly notify Sellers of any
                                                                                                        I
inaccuracies it discovers in Schedule 1.0l(a) that might lead to a Credit Adjustment.
        Section 6.02     Environmental Defect Adfastments.
                                                                                                        I
         (a)     Each Ownership Interest set forth on Schedule 1.0l(a), each other Oil and Gas
Interest, and each other asset of Upland, shall constitute a separate asset for pmposes of this
Article 6 and an Environmental Defect that pertains to more than one Ownership Interest, Oil and
                                                                                                        I
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                                                                  APPENDIX B - Page 36
I
                                                                                      Execution Venton

I    Gas Interest, or other asset of Upland shall be considered a separate Environmental Defect as to
     each Ownership Interest, Oil and Gas Interest, or other asset.

I            (b)    Buyer shall give Sellers written notice of Environmental Defects on or before
     October 18, 2007. Such notice shall be in writing and shall include: (i) a description of the
     Environmental Defect; (ii) if applicable, the Allocated Value of the Ownership Interest affected

I    by the Environmental Defect; (iii) Buyer's good faith estimate of the costs associated with
     correcting ~e circumstance or condition to the extent required by the standards set forth in
     Section 11.02(b)(iii); and (iv) supporting documentation, including all data, reports and analysis

I    of which Buyer is aware concerning the problem. Sellers' inclusion in the Disclosure Schedule of
     a condition that constitutes an Environmental Defect will not preclude Buyer from raising such
     condition as an Environmental Defect. Buyer shall be deemed to have waived all breaches of
     Upland's and Sellers' warranty and representation pursuant to Section 3.25 with respect to any

I    circumstance or condition of which Buyer has Knowledge as of October 18, 2007, and for which
     Buyer has not provided a valid notice pursuant to this Section 6.02(b).


I            (c)     If an Ownership Interest, Oil and Gas Interest, or other asset is affected by an
     Environmental Defect, the Purchase Price shall be reduced by amount of the Environmental
     Defect; provided, however (A) no reduction shall be made with respect to an Ownership Interest,
     Oil and Gas Interest, or other asset subject to an Environmental Defect if on or before Closing,

I'   Sellers elect any of the options set forth in Sections l 1.02(b)(i)(2) or 11.02(b)(ii), and (B) all of
     the provisions of Section l l.02(b)(i)(l) shall apply with respect to any property as to which a
     reduction in the Purchase Price is made.

I            Section 6.03 Casualty Loss. If subsequent to the date of this Agreement and, prior to
     the Closing, all or any material portion of an Ownership Interest, Oil and Gas Interest, or other
     asset of Upland is destroyed by fire or other casualty, is taken in condemnation or under the right

I    of eminent domain or proceedings for such purposes are pending or threatened, the obligations of
     Buyer shall remain in effect and the Purchase Price shall not be adjusted. Sellers shall, at the
     Closing, pay to Buyer all sums paid to Sellers by third parties by reason of the destruction or
     taking of such Ownership Interest, Oil and Gas Interest, or other asset, and shall assign, transfer
I    and set over unto Buyer all of the right, title and interest of Sellers in and to any unpaid awards or
     other payment from third parties arising out of the destruction, taking or pending or threatened
     taking. Sellers shall not voluntarily compromise, settle or adjust any material amount payable by

I    reason of any material destruction, taking or pending or threatened taking without first obtaining
     the written consent of Buyer.

                                                 ARTJCLE7
I                                              CONDmONS

             Section 7.01 Conditions to Each Party's Obligation to Effect the Transaction.
     The respective obligations of each party to effect the transaction contemplated by this Agreement
I    shall be subject to the satisfaction, at or prior to the Closing Date, of the following condition:

              (a}     No Injunctions or Restraints. No temporary restraining order, preliminary or

I    permanent injunction or other order issued by any court of competent jurisdiction or other legal
     restraint or prohibition preventing the consummation of the transaction contemplated hereunder
     shall be iii effect; provided, however, that prior to invoking this condition, each party shall have
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                                                                       APPENDIX B - Page 37
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                                                                                                       I
complied fully with its obligations under Section S.03 and, in addition, shall use all reasonable
efforts to have any such decree, ruling, injmiction or order vacated, except as otherwise
                                                                                                       I
contemplated by this Agreement.

        Section 7.02 Conditions to Obligations of Buyer. The obligation of Buyer to effect
the transaction contemplated .by this Agreement is subject to the satisfaction of the following
                                                                                                       I
conditions, any or all of which may be waived in whole or in part by Buyer:

       (a)     Representations. Warranties and Covenants. Each of the representations and
warranties of Upland and Sellers set forth in Article 3 shall be true and correct as of the date
                                                                                                       I
made and shall be true and correct in all material respects as of the Closing Date as though made
on and as of that time (unless by its express terms or reasonable interpretation the representation
and warranty is made as of a time specific), and Sellers shall have performed their covenants
                                                                                                       I
hereunder in all material respects to the extent such were to be performed prior to Closing and
Buyer shall have received a certificate signed by Sellers to both such effects;

       (b)    Consents. Sellers shall obtain the Bank Consent (which may be conditioned on
                                                                                                       I
the consummation of the Closing and the delivery of certificates and other documents to be
provided by Sellers to the Bank), and all Third Party Consents.                     ·                  I
        (c)     Panhandle Pipeline LP. Panhandle Pipeline, LP and Buyer shall have closed on
that certain Purchase and Sale Agreement for the purchase of the Farmers and Ranchers Pipeline;
such transfer to be free and clear of all encumbrances, liens and debts.                               I
       (d)     Sellers shall have caused Sellers, Peyton Oil & Gas, and Bailey Peyton
("Lessors") to grant new oil and gas leases to Upland on the form attached hereto as Exhibit C
carrying a four year primary term and delivering a 75% NRI to Upland, and covering all of such
                                                                                                       I
Lessors' non-producing mineral interests in Crosby, Hansford, Hemphill, Lipscomb, Ochiltree,
Randall, Roberts and Wheeler Counties, Texas, and in Beckham, Ellis, Rogers Mills and Texas
Counties, Oklahoma as set forth on Schedule 7.02(d).                                                   I
       (e)
Section S.07.
              Upland shall have delivered the Effective Date Balance Sheet in accordance with
                                                                                                       I
       (f)       Upland shall have filed all tax returns listed on Section 3.16 of the Disclosure
·schedule.

      (g)    All documents required to be delivered at Closing shall be in a form in
                                                                                                       I
compliance with the obligations hereunder in all material respects.

        Section 7.03 Conditions to Obligation of Sellen. The obligation of Sellers to effect
the transaction· contemplated by this Agreement is subject to the satisfaction of the following
                                                                                                       I
conditions, any or all of which may be waived in whole or in part by Sellers:

       (a}     Representations. Warranties and Covenants. The representations and warranties
                                                                                                       I
of Buyer set forth in Article 4 shall be true and correct in all material respects as of the Closing
Date as though made on and as of that time (unless by its express terms or by reasonable
implication the representation and warranty is made as of a specific time) and Buyer shall have        I
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                                                                 APPENDIX B - Page 38
I                                                                                     Execution Venion

I    performed in all material respects all covenants and agreements required to be performed by
     them under this Agreement at or prior to the Closing Date, and Sellers shall have received a

I    certificate signed by the President or a Vice President of Buyer to both such effects.

            (b)   All documents required to be delivered at Closing shall be in a form in
     compliance with the obligations hereunder in all material respects.

I                                                ARTICLES
                                                  CLOSING


I            Section 8.01 Closing Obligations. At the Closing the following events shall occur,
      each being a condition precedent to the others and each being deemed to have occurred
     .simultaneously with the others:                                           ·

I            (a)    Sellers and Buyer shall execute and deliver a settlement statement, prepared in
     accordance with this Agreement and that shall set forth the Preliminary Purchase Price and each
     adjustment and the calculation of such adjustments used to determine such amount Sellers shall

I    provide Buyer with the Preliminmy Settlement Statement seven (7) days prior to Closing for
     Buyer's review and approval. The term "Preliminary Purchase Price" shall mean the Purchase
     Price, adjusted as provided in Section 2.02, using for such adjustments the best information then

I    available.

             (b)     Buyer shall deliver to Sellers the Preliminmy Purchase Price by direct bank or
     wire transfer in immediately available United States funds to the account or accounts designated

I    by Sellers.

       .     (c)    Sellers and Buyer shall execute, acknowledge and deliver transfer orders or letters
     in lieu thereof directing purchasers of production to make payment to Buyer, if necessary, of
I    proceeds attn'butable to production from the Oil and Gas Interests.

              (d)    Sellers shall deliver to Buyer the stock certificates for all of the Upland Common

I    . Stock properly executed for assignment to Buyer.

             (e) . , . Sellers shall deliver to Buyer resignations of the members of the board of directors
     and all officers of Upland.

I'          (t)     Sellers and Buyer shall execute the Officers' Certificates required in
     Section 7.02(a) and Section 7.03(a) respectively.

I            (g)    Sellers shall deliver to Buyer schedules as prepared by Sellers relating to wells, oil
     and .gas leases, oil and gas equipment, and non-oil and gas assets related to the Ownership
     Interests of Upland.

I           (h)
     Section 11.07.
                    Sellers shall deliver the agreement of Peyton Oil and Gas, Inc. pursuant to



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                                                                         APPENDIX B - Page 39
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                                                                                                       I
                                             ARTICLE9
                                 POST-CLOSING GAS IMBALANCE
                                                                                                       I
         Section 9.01

         (a)
                            Gas Balancing.

                 General. Schedule 9.01 sets forth the gas imbalance as to the Oil and Gas
                                                                                                       I
Interests as of the various dates set forth on the Schedule. At Closing, the Purchase Price shall be
adjusted·by such amount based on a value of $4.00 per MCF. The parties will use their best
efforts to update (to the Effective Time) the volume amounts listed on Schedule 9.01 within sixty
(60) days from the Closing Date. If the gas imbalance of an Oil and Gas Interest indicated on
                                                                                                       I
Schedule 9.01 changes or additional Oil and Gas Interests are added as a result of this update, the
parties will make the appropriate payments to one another within ninety (90) days after Closing
based on a value of $4.00 per MCF to reflect the updated imbalance volume and the resulting
                                                                                                       I
balancing value for the Oil and Gas Interest. If Sellers and a third party operator disagree as to
the amount of any imbalance, Buyer and Sellers shall mutually agree to an amount After ninety
(90) days after the Closing, there shall be no further adjustment made as to gas imbalance on any
of the Ownership Interests.
                                                                                                       I
                                             ARTICLE IO
                                         TERMINATION
                                                                                                       I
        Section 10.01 Termination Rights, This Agreement may be terminated and the
transaction contemplated hereunder may be abandoned at any time prior to the Closing Date:             I
        (a)

        (b)
                 By mutual written consent of Buyer and Sellers;

                By either Sellers or Buyer if (i) the transaction contemplated hereunder has not
                                                                                                       I
been consummated by November 1, 2007 provided, however, that the right to terminate this
Agreement pursuant to this clause (b) shall not be available to any party-whose breach of any
representation or warranty or failure to perform any covenant or agreement under this Agreement
has been the cause of or resulted in the failure of the transaction contemplated hereunder to occur
                                                                                                       I
on or before such date; or (ii) any Governmental Authority shall have issued an order, decree or
ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the
transaction and such order, decree, ruling or other action shall have become final and
                                                                                                       I
nonappealablc (provided, however, that the right to terminate this Agreement pursuant to this
clause (b) shall not be available to any party until such party has used all reasonable efforts to
remove such injunction, order or decree);                                                              ·1
        (c)     By Buyer if Sellers or Upland have failed to comply in any material respect with
any of their respective covenants or agreements contained in this Agreement (provided, however,
that Buyer shall have given Sellers at least forty-eight (48) hours prior notice of such failure to
                                                                                                       I
comply and Sellers have failed to comply within such forty-eight (48) hours);

        (d)    By Sellers if Buyer has failed to comply in any material respect with any of its
covenants or agreements contained in this Agreement (provided, however, that Sellers shall have
                                                                                                       I
given Buyer at least forty-eight (48) hours prior notice of such failure to comply and Buyer has
failed to comply within such forty-eight (48) hours); or
                                                                                                       I
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                                                              APPENDIX B - Page 40
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                                                                                                  Execution Venton

I          (e)     By either Sellers or Buyer, if the aggregate amount of the actual and unresolved
    adjustments to the Purchase Price pursuant to Article 6 exceeds $6,000,000.             ·

I          (t)    In the event of the termination of this .Agreement by Sellers in accordance with
    Se¢ons (a), (b), (d) or (e) above, Sellers shall have no liability hereunder of any nature
    whatsoever to Buyer, including any liability for damages. If Buyer terminates this Agreement in

I   accordance with Sections (a), (b), (c) or (e) above, it shall have no liability hereunder of any
    nature whatsoever to Sellers including any liability for damages.

            Section 10.02 Effect of Termination. If this Agreement is terminated by either Sellers
I   or Buyer pursuant to the provisions of Section 10.01 above, there shall be no further obligation
    on the part of any party hereto or its respective Affiliates, directors, officers, or stockholders
    except the obligations embodied in Section 10.0l(t) and the obligations pursuant to the

I   provisions of Section 5.02(b) (but only to the extent of the confidentiality and indemnification
    provisions 'contained therein), and Article 11, Sections 5.05, 12.02, 12.04, 12.05, 12.11, 12.12,
    12.13, 12.14, and the Confidentiality Agreement (which shall continue pursuant to their terms);

I   provided, however, that a termination of this Agreement shall not relieve any party hereto from
    any liability for damages incwred as a result of a breach by such party of its representations,
    warranties, covenants, agreements or other obligations hereunder occwring prior to such
    termination.

I                                               ARTICLEU
                                      INDEMNIFICATION AND ASSUMPTION

I          (a)
              Section 11.01 Survival of Representations and Warranties.

                   Sellers' and Upland's Representations and Warranties. The representations and

I   warranties of the Sellers and Upland contained in the Sections listed below shall survive Closing
    (even if the Buyer knew or had reason to know of any misrepresentation or breach of warranty at
    the time of Closing) and continue in full force and effect for the respective periods shown below:


I   3.22.................................................... Closing Date


I   3.01 through 3.15,
    3.18 through 3.21,
    3.23 through 3.25, and
    3.28 through 3. 30 ............................. one year

I                                                           three months after the expiration of the applicable statute
    3.16................................................... of limitations for the assessment ofTaxes
    3.26................................................... two years
I   3.17 and 3.27.................................... unlimited

          (b)    Buyer's Representations and Warranties. The representations and warranties of
I   the Buyer shall .survive Closing (even if the Sellers knew or had reason to know of any



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                                                                                 APPENDIX B - Page 41
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                                                                                                      I
misrepresentation or breach of warranty at the time of Closing) and continue in full force and
effect for a period of one (1) ~·
                                                                                                      I
         Section 11.02 lndellllllilcation By Sellen. If the Closing occurs, Sellers shall jointly
and severally indemnify, defend and hold harmless Buyer and Upland and their respective
Affiliates, directors, managers, officers, shareholders, employees, agents and representatives
                                                                                                      I
("Buyer Indcmnitees") from (i) any Adverse Consequence resulting from the breach by Upland or
either Seller of any warranty and representation contained in Article 3 hereof except
Section 3.22, and (ii) the breach by a Seller or Upland of any of a Seller's or Upland's covenants
                                                                                                      I
hereunder; and (iii) any Adverse Consequence arising from or in connection with all pending or
threatened claims or causes of action asserted against Upland in the litigation styled Petro Pro,
Ltd., L&R Energy Corporation, Nancy Wilson Briscoe, Judith Brock Seitz, and Carolyn Rogers
(collectively, "Petro Pro") v. Upland Resources, Inc., KCS Resources, Inc., Great Lakes Energy
                                                                                                      I
Partners, L.L.C., and Steve Zemkoski, Cause No. 1893, in the 31 11 District Court in and for
Roberts County, Texas (the "Roberts County Litigation"), including any appeal of the Roberts
County Litigation, and any and all other claims or causes of action of Petro Pro or anyone else
                                                                                                      I
against Upland, Buyer, or Sellers arising out of or related in any way to any of the events made
the basis of the Roberts County Litigation; and (iv) any Adverse Consequence arising from or in
connection with all pending or threatened claims or causes of action asserted against Upland in
the litigation styled Amarillo Production Company v. Upland Resotll'CCS, Inc. Cause No. 12, 021,
                                                                                                      I
in the 31" District Court in and for Wheeler Cotmty, Texas (the "Byrd WeULitigation").
including any appeal of the Byrd Well Litigation; and (v) any Adverse Consequences resulting
from the litigation disclosed on Section 3.13 of the Disclosure Schedule other than the Roberts
                                                                                                      I
County Litigation or Byrd Well Litigation. Sellers' obligations under this Section 11.02 are
subject to the following:

        (a)     Sellers' obligation under this Article 11 for breaches of warranties and
                                                                                                      I
~tations is strictly conditioned (with time being the essence hereof) on Buyer or Upland
providing written notice to Sellers of a claim for indemnification under this Section 11.02 prior
to the end of the applicable survival period referred to in Section 11.01 above, and in the case of
                                                                                                      I
the warranty and representation set forth in Section 3.26, is conditioned additionally upon Buyer's
receipt of written notice of a Third-Party Claim based on the same facts on which the asserted
breach is based having been asserted in writing against Buyer or on or before the end of the
survival period applicable to such warranty and representation. As a condition to being effective,
                                                                                                      I
such notice must contain (i) sufficient details concerning the claim of breach so that Sellers can
determine the full extent and nature of the breach and (ii) reasonable evidence supporting Buyer's
claim of breach as well as any and all information, documentation or evidence Buyer may have,
                                                                                                      ·1
including such information that may be contrary to the claim of breach.

       (b)     Claims for breach of Sellers' environmental representations and warranties
contained·in·Section 3.25 shall be subject to the following:
                                                                                                      I
              (i)    Sellers may elect to do any of the following (singly or in any combination)
       to satisfy any indemnification obligation with respect to claims for breach of                 I
       Section 3.25:

                          (1)  Sellers may tender to Buyer Sellers' reasonable estimate of costs
                 for any cleanup, removal, recovery, response, restoration, corrective action or
                                                                                                      I
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I                     remedial action that is required in order to cure Sellers' breach ("Cleanup"), with
                      Buyer being obligated to perform such Cleanup diligently and in a worlananlike

I                     manner in accordance with the standards set forth in Section 1l .02(b)(iii), and
                      with Buyer, after such tender is made, being obligated to thereafter indemnify,
                      defend and hold harmless Sellers and their respective Affiliates, directors,
                      officers, shareholders, employees, agents and representatives ("Seller

I                     Indemnitees") for any further Adverse Consequences associated with
                      environmental matters on the relevant property. If Buyer disputes Sellers'
                      reasonable estimate of costs, and the parties cannot reach agreement, the matter,

I                     including the existence and value of the breach, shall be submitted to arbitration.
                      The arbitrator shall be an environmental consulting firm with extensive
                      experience with regard to oil and gas producing properties located in the same
                      general area as those submitted for arbitration. Prior to Closing, the parties shall

I                     attempt to agree on the name of one (I) acceptable environmental consulting firm
                      available to act as arbitrator in the event of a dispute. If the parties cannot agree
                      on the mutually acceptable arbitrator, the arbitrator shall be selected in accordance

.1                    with the commercial rules of the American Arbitration Association.

                              (2)     Sellers may perform the Cleanup at their own cost prior to Closing.


I                   (ii)    Sellers, in lieu of any of the remedies required by Section l l .02(b)(i)
             above and provided that the delay of Cleanup or similar action on a property will not
             materially adversely affect the liability associated with the property, may elect to defend,

I
             indemnify and hold harmless Buyer Indemnitees from any Adverse Consequences arising
             in connection with the specific item with respect to which a breach of the warranty and
             representation exists without limitation in time.


I                    (iii) Sellers shall not be deemed to have breached the warranty and
             representation in Section 3.25 if the condition or circumstance giving rise to the
             allegation of breach meets or exceeds any one of the following standards:

I                             (I)    compliance with Environmental Laws as they are being enforced
                      by the applicable Governmental Authority as of the date hereof.

                             (2)     compliance with Environmental Laws as generally evident on
I                     Buyer's properties of a similar nature (and Buyer shall give Sellers reasonable
                      access on forty-eight (48) hoW"S notice to examine such properties for pmposes of
                      determining this standard).

I                            (3)      compliance with Environmental Laws as generally evident on
                      properties of similar nature of the "Majors" in the relevant jurisdiction.


I            The value of any Adverse Consequences associated with any alleged breach shall also
             take into account the probability that the applicable Governmental Authority will become
             aware of any noncompliance (unless such noncompliance is required to be reported) and

I            actually require compliance.




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                                                                        APPENDIX B - Page 43
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                                                                                                       I
        (c)    Notwithstanding the above provisions of this Section 11.02, Sellers shall
indemnify, defend and hold harmless the Buyer Indemnities from any Adverse Consequences
                                                                                                       I
resulting from the matters set forth on the Disclosure Schedule that are indicated to be retained
by Sellers.

        (d)     In the event that a petition for review or other request for appellant review of the
                                                                                                       I
Roberts County Litigation is not filed with the Texas Supreme Court or any federal court of
appeals (including the U.S. Supreme Court), Sellers' obligation under Section l 1.02(iii) for
Adverse Consequences arising from the Roberts County Litigation shall be limited to (i)
                                                                                                       I
$500,000 plus (ii) actual attorneys' fees and expenses incmred by Buyer or Upland after the
Effective Time. In the event that a petition for review or other request for appellant review of
the Roberts Collllty Litigation is filed with the Texas Supreme Court or any federal court of
appeals (including the U.S. Supreme Court), Sellers' obligation under Section l 1.02(iii) for
                                                                                                       I
Adverse Consequences arising from the Roberts County Litigation shall not be limited. Sellers'
obligation under Section l 1.02(iv) for Adverse Consequences arising from the Byrd Well
Litigation shall be limited to $5,400,000. Furthermore, Sellers' obligation under Section 11.02(v)
                                                                                                       I
for Adverse Consequences arising from the litigation disclosed on Section 3.13 of the Disclosure
Schedule other than the Roberts County Litigation and Byrd Well Litigation shall not be limited.

        Section 11.03 Indemnification by Bayer and Upland. Except (a) with respect to the
                                                                                                       I
matters for which Sellers have provided an express indemnification as set forth in Section 11.02,
(b) Purchase Price adjustments covered by Section 2.02 and Section 5.07 and Article 9 to the
extent such adjustments are provided for after Closing, (c) Title Defect adjustments covered by
                                                                                                       I
Article 6, and (cl) tax obligations covered by Sections 3.16 and 5.08, from and after the Closing,
Buyer and Upland shall, to the fullest extent permitted by law, indemnify, defend and hold
harmless Seller Indemnitees against all Adverse Consequences associated with (i) the breach by
Buyer of any warranty, representation or covenant contained in this Agreement; and (ii) the
                                                                                                       I
business of Upland or operations conducted by Sellers on behalf of Upland prior to, and after the
Effective Time.

        Section 11.04 Matten Involving Third Parties.
                                                                                                       I
        (a)     If any third party shall notify an indemnified party (the "Indemnified Party") with
respect to any matter (a "Third Party Claim") which may give rise to a claim for indemnification
                                                                                                       I
against Sellers, Buyer or Upland (the "Indemnifying Party") under this Article 11, the
Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided,
however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party
                                                                                                       I
shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the
extent that) the Indemnifying Party thereby is prejudiced.

       (b)     Any Indemnifying Party will have the right to assume the defense of the Third
                                                                                                       I
Party Claim with coWlSel of its choice reasonably satisfactory to the Indemnified Party at any
time within fifteen (15) days after the Indemnified Party has given notice of the Third Party
Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third
Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and
                                                                                                       I
provided further that the Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim.                                       a
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                                                               APPENDIX B - Page 44
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                                                                                      Execution Venion

.1             (c)     So long as the Indemnifying Party has assumed and is conducting the defense of
       the Third Party Claim in accordance with Section 11.04(b) above, (i) the Indemnifying Partywi11

I      not consent to the entry of any judgment or enter into any settlement with respect to the Third
       Party Claim without the prior written consent of the Indemnified Party (not to be withheld
       unreasonably) unless the judgment or proposed settlement involves only the payment of money
       damages by one or more of the Indemnifying Parties and does not impose an injunction or other




'
       equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the
       entry of any judgment or enter into any settlement with respect to the Third Party Claim without
       the prior written consent of the Indemnifying Party (not to be withheld unreasonably).

I              (d)    In the event none of the Indemnifying Parties assumes and conducts the defense of
      the Third Party Claim in accordance with Section l 1.04{b) above, however, (i) the Indemnified
      Party may defend against, and consent to the entry of any judgment or enter into any settlement

I     with respect to, the Third Party Claim in any manner he or it reasonably may deem appropriate
      (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying
      Party in Connection therewith) and (ii) the Indemnifying Parties will remain responst'ble for any

I     Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating
      to,· in the nature of, or caused by the Third Party Claim to the fullest extent provided in this
      Section 11.04.


I            Section 11.05 Indemnification Despite Negligence. It is the express intention of the
      parties hereto that each party to be indemnified punuant to this Article 11 shall be
      indemnified and held harmless from and against all Advene Consequences as to which

I     indemnity is provided for under this Article 11, notwithstanding that any such Advene
      Consequences arise out of or result from the ordinary, strict, sole. or contributory
      negligence of such party and regardless of whether any other party (including the other · ·
      parties to this Agreement) is or is not also negligent. The parties hereto acknowledge that

I     the foregoing complies with the express negligence rule and is conspicuous.

              Section 11.06 Determination of Advene Consequences. The parties shall make
       appropriate adjustments for insmance coverage and take into account the time cost of money
I      (using the Applicable Rate as the discount rate) in determining Adverse Consequences for
     . p~ of this Article 11. All indemnification payments under this Article 11 shall be deemed
       adjustments to the Purchase Price.  ·

I             Section 11.07 ~ Peyton Oil & Gas, Inc., an Affiliate of Sellers, owns certain
      overriding royalty interests and landowners' royalty interests payable to Peyton Oil and Gas out
      of production from the Ownership Interests (the "Seller's Royaltiesj. The Buyer's right to
I     enforce Section 11.02 of this Agreement shall include, but shall not be limited to, the right of
      offset against the Seller's Royalties. At Closing, Sellers shall deliver a guaranty agreement in the
      form attached hereto as Exhibit D evidencing Peyton Oil & Gas, lnc.'s agreement to such right of

I     offset.
              Section 11.08 Application of Article 11. This Article 11 provides the sole and
      exclusive remedy for breaches of representations, warranties and covenants under this Agreement

I     except:

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                                                                       APPENDIX B - Page 45
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                                                                                                       I
       (a)     Accounting adjustments to the Purchase Price for normal operating revenues and
expenses, as well as capital expenditures in the ordinary course of business, are handled by
                                                                                                       I
Sections 2.02 and 5.07.


and 5.08
        (b)      Indemnities with respect to taX matters including, but not limited to Sections 3.16   I
       (c)    All adjustments, indemnities, and provisions with respect to Title Defects arc
handled exclusively by Article 6.                                                                      I
                                           ARTICLEll
                                       MISCELLANEOUS                                                   I
       Section 12.01 Amendment This Agreement may not be amended except by a written
instrument signed on behalf of each of the parties hereto.

        Section 12.02 Notices.      Any notice or other communication required or pennitted
                                                                                                       I
hereunder shall be in writing and either delivered personally, by facsimile transmission or by
registered or certified mail (postage prepaid and return receipt requested) and shall be deemed
given when received (or, if mailed, five (S) business days after the date of mailing) at the
                                                                                                       I
following addresses or facsimile transmission numbers (or at such other address or facsimile
transmission number for a party as shall be specified by like notice):

        If to Sellers:
                                                                                                       I
        Bailey Peyton
        105 North Fifth St
        Canadian, Texas 79014
                                                                                                       I
        With a copy to:                                                                                I
        Jeffrey G. Shrader, Esq.
        Sprouse Shrader Smith P.C.
        P.O. Box 15008
        701 S. Taylor, Suite 500
                                                                                                       I
        Amarillo, Texas 79106

        If to Buyer:
                                                                                                       I
        Cordillera Energy Partners Ill, LLC
        George Solich
        8450 E. Crescent Parkway, Suite 400
                                                                                                       I
        Greenwood Village, Colorado 80111
        Phone: (303) 785-ISSO
        Fax: (303)290-9997
                                                                                                       I
       Section 12.03 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and shall become             I
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                                                                 APPENDIX B - Page 46
I                                                                                     Execudon Venton

I      effective when two (2) or more counterparts have been signed by each of the parties. and
       delivered to the other parties, it being understood that all parties need not sign the same

I      counterpart.

              Section 12.04 Entire Agreement; No Third Partv Beneficiaries. This Agreement
      (together with the Confidentiality Agreement and the documents and instrmnents delivered by

I     the parties in connection with this Agreement) (a) constitutes the entire agreement and
      supersedes all other prior agreements and understandings, both written and oral, among the
      parties with respect to the subject matter hereof, and (b) is solely for the benefit of the parties

I     hereto and their respective successors, legal representatives and assigns and does not confer on
      any other Person any rights or remedies hereunder.

           . Section 12.05 Applicable Law. This Agreement shall be governed in all respects,

I     including validity, interpretation and effect, by the laws of the State of Texas regardless of the
      laws that might otherwise govern under applicable principles of conflicts oflaws thereof:

              Section 12.06 No Remedy in Certain Circumstances. Each party agrees that, should
I     any court or other competent authority hold any provision of this Agreement or part hereof to be
      null, void or unenforceable, or order any party to take any action inconsistent herewith or not to
      take an action consistent herewith or required hereby, the validity, legality and enforceability of
      the remaining provisions and obligations contained or set forth herein shall not in any way be



'a    affected or impaired thereby, unless the foregoing inconsistent action or the failure to take an
      action constitutes a material breach of this Agreement or makes this Agreement imposst"ble to
      perform, in which case this Agreement shall terminate pursuant to Article 10. Except as
      otherwise contemplated by this Agreement, to the extent that a party hereto took an action
      inconsistent herewith or failed to take action consistent herewith or required hereby pumiant to
      an order or judgment of a court or other competent Governmental Authority, such party shall not

I     incur any liability or obligation unless such party breached its obligations under Section 5.03 or
      did not in good faith seek to resist or object to the imposition or entering of such order or
      judgment

I             Section 12.07 Assignment. Neither this Agreement nor any of the rights, interests or
      obligations hereunder shall be assigned by Sellers, Upland, or Buyer (whether by operation of
      law or otherwise) without the prior written consent of each other party. Subject to the preceding

I     sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the
      parties and their respective successors and assigns.

              Section 12.08 Walven. At any time prior to the Closing Date, the parties hereto may,

I    · to the extent legally allowed, (a) extend the time for the performance of any of the obligations or
      other acts of the other parties hereto, (b) waive any inaccuracies in the representations and
      warranties. contained herein or in any document delivered pursuant hereto, and (c) waive

I     performance of any of the covenants or agreements, or satisfaction of any of the conditions,
      contained herein. Any agreement on the part of a party hereto to any such extension or waiver
      shall be valid only if set forth in a written instrument signed on behalf of such party. Except as
      provided in this Agreement, no action taken pursuant to this Agreement, including any
I     investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party
      taking such action of compliance with any representations, warranties, covenants or agreements



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                                                                       APPENDIX B - Page 47
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                                                                                                        I
contained in this Agreement The waiver by any party hereto of a breach of any provision hereof
shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any
                                                                                                        I
other provisions hereof.

         Section 12.09 Confidentiality Agreement.          The Confidentiality Agreement shall
remain in full force and effect following the execution of this Agreement and shall terminate at
                                                                                                        I
Closing. Any and all information received by Buyer under this Agreement shall be governed by
the applicable terms and provisions of the Confidentiality Agreement

       Section 12.10 Incorporation. Exlu'bits and Schedules referred to herein are attached to
                                                                                                        I
and by this reference incorporated herein for all purposes.

     Section 12.11 Waiver of Jury Trial. EACH PARTY WAIVES, TO TIIE FULLEST
                                                                                                        I
EXTENT PERMI'ITED BY APPUCABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO TIUS
AGREEMENT.
                                                                                                        I
       Section 12.12 Jurisdiction and Venue.              The parties hereby irrevocably and
unconditionally consent to submit to the non-exclusive venue and jurisdiction of the courts of the
State of Texas and of the United States of America located in Texas for any actions, suits or
                                                                                                        I
proceedings arising out of or relating to this Agreement and the transactions contemplated hereby




                                                                                                        '
(and Buyer, Upland, and Sellers agree not to commence any action, suit or proceeding relating
thereto except in such courts), and further agree that service of process, summons, notice or
document by U.S. registered mail shall be effective service of process for any action, suit or
proceeding brought against a party hereto in any such court.

      Section 12.13 Damage Waiver. NO PARTY SHALL BE UABLE FOR OR BE
                                                                                                        .1
REQUIRED TO PAY FOR OR INDEMNIFY AN INDEMNIFIED PARTY FOR SPECIAL,
PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENI'IAL OR INDIRECT DAMAGES
SUFFERED BY THE INDEMNIFIBD PARTY IN CONNECTION WITH OR IN ANY
MATTER RELATING TO TIUS AGREEMENT PROVIDED nns LIMITATION SHALL
                                                                                                        I
NOT LIMIT ANY OBUGATIONS OTHERWISE PROVIDED FOR HEREUNDER TO
INDE:MNIFY A PARTY FOR THE FOREGOING TYPE OF DAMAGES TIIAT MUST BE
PAID TO A TIURD PARTY.
                                                                                                        I
        Section 12.14 Legal Fees. The prevailing party in any legal proceeding brought under
or to enforce this Agreement shall be additionally entitled to recover court costs and reasonable
attorneys' feel! from the non-prevailing party.
                                                                                                        I
        Section 12.15 lnlonctive Relief, Specific Performance.                  The parties hereto
acknowledge and agree that irreparable damage would occur in the event any of the provisions of
                                                                                                        .1
this Agreement were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement, and shall be entitled to enforce
specifically the provisions of this Agreement, subject to the provisions of Section 12.12, in any
                                                                                                        I
court of the United States or any state thereof having jurisdiction, in addition to any other remedy
to which the parties may be entitled under this Agreement or at law or in equity.                       I
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                                                                  APPENDIX B - Page 48
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                                                                                    Execution Venion

I           Section 12.16 Further Assurances. After the Closing, each of the parties will execute,
    acknowledge, and deliver to the other such further instruments, and take such other actions as

I   may be reasonably requested in order to more effectively assure to said party all of the respective
    properties, rights, titles, interests, estates, and privileges intended to be assigned, delivered, or
    inuring to the benefit of such party and consummation of the transactions contemplated hereby.




'
            Section 12.17 Transition. The parties recognize that matters involving the transition
    of the business of Upland to Buyer have not been addressed in the forgoing provisions of this
    Agreement. Therefore, the parties agree that as a general principle, they will cooperate with each

I   other to accomplish an orderly transfer of the business that satisfies the reasonable needs of each
    party to conduct its business and satisfy its obligations corporately and under this Agreement, and
    allows each party to enjoy the benefits it has secured under this Agreement, with the expenses for
    such transition generally being borne by the party or parties benefiting from the expense. This
I   obligation shall continue for the period of time nl!CCSsary to accomplish the orderly transition, but
    shall not continue after December 31, 2007 (the "Transition Period"). The transition shall
    anticipate the following obligations and conditions:

I           (a)    Transition Agreement. At Closing, the parties shall execute and deliver the
    Transition Agreement attached hereto as Exhibit E. As to transition matters, any conflict
    between this Agreement and the Transition Agreement, the. terms of the Transition Agreement

I   shall control.

            (b)    Personnel. Promptly after the announcement of this transaction to the employees
    of Upland, Upland shall request from each employee his/her consent to release to Buyer the



'
    employee's resume and current salary information. Upland shall not release such information to
    Buyer for any employee that does not consent to such release. For those consenting employees,
    Buyer may interview such employees upon 24 hours notice to Sellers. Should Buyer wish to

I   make an offer to that employee, Buyer shall consult with Sellers prior to making such an offer, in
    order that Buyer and Sellers may reasonably agree as to the most convenient date for which the
    employee would no longer be an employee of Upland and would be hired by Buyer.

I           (c)     File Access. After Closing, Buyer shall provide Sellers reasonable access during
    normal business hours to files and records that Sellers reasonably needs in order to comply with
    its obligations under this .Agreement· and. to respond. to· audits. and/or litigation or arbitration

I   proceedings. Buyer agrees to maintain the records of Upland for a period of three years after
    Closing, except that Buyer agrees to maintain Upland's Tax records for so long as the period of
    limitations for the assessment of any Taxes related to such records has been extended. If Buyer
    elects to destroy any such records, or any portion thereo~ it shall notify Sellers prior to such.
I   destruction and provide Sellers with an opportunity to take possession of the same.

           (d)     Field Operations. At Closing, Buyer shall take over supervision of the field

I   operations for the Ownership Interests. If Buyer is unable to take over such supervision, Buyer
    may request that Sellers continue to supervise such activities.

            (e)    Marketing. Between the date of this Agreement and Closing, Buyer and Sellers

I   shall coordinate the nominations of natural gas and shall further reasonably cooperate with one
    another as deemed necessary by Buyer regarding the marketing, gas control and contract

                                                    -44-
I   m819 000002 HOUSTON 543524.S                            CONFIDENTIAL          APACHE001178




                                                 893

                                                                    APPENDIX B - Page 49
                                                                                  Execution Venion
                                                                                                          I
administration aotivities necessary in order to sell Hydrocarbons from the Oil and Gas Interests
after Closing.
                                                                                                          I
          (f)    Land and Accounting Functions. Buyer may request that Sellers after Closing
 continue providing land and lease administration activities, such as lease administration and
 division orders, and maintain all land, lease and other records, and provide associated services, pay
                                                                                                          I
 rentals, shut-in payments and other lease payments. Buyer may request that Sellers after Closing
 continue providing accounting functions such as royalty and other lease payments, payment of
 accounts payable, collection of accounts receivable, computation and payment of severance and
                                                                                                          I
.other taxes based on production, gas balancing, and general ledger and financial reporting activities.

       (g)     Employee Contacts. Sellers and Buyer shall designate certain employees to
contact for the coordination of activities required in order to have an orderly transition of the
                                                                                                          I
business of Upland to Buyer.
                                                                                                          I
                            [Remainder of Page Intentionally Left Blank]
                                                                                                          .1
                                                                                                          .,
                                                                                                          I
                                                                                                          I
                                                                                                          I
                                                                                                          I
                                                                                                          I
                                                                                                          ,.
                                                                                                          I
                                                 -45-
                                                                                                          I
512819 000002 HOUSTON 543524.S
                                                              CONFIDENTIAL          APACHE001179




                                                  894

                                                                     APPENDIX B - Page 50
I
I            lN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
     their duly authorized Representatives, on the date first written above.
I                                             SELLERS:


I                                            BAHEY~~
I                                            GEORGE BAILEY PEYTON IV 2007 GRANTOR
                                             RETAINED ~TRUSTNO. 1
I
                                             :r.;.., SA~U<if#
I                                             Title: Trustee


-1                                            UPLAND:

                                              UPLAND RESOURCES, INC.

I                                             By.          a~ Cf'=
                                              Name: BaileyPeYtOil

I                                             Title: President ,


                                              BUYER:
I                                             CORDILLERA ENERGY ~ARTNERS IlI, U.C


I                                             By:
                                              Name: George H. Solich
                                              Title: President
I
I
             SIGNATURE PAGE TO STOCK PURCHASE AND SALE AGREEMENT

I
                                                          CONFIDENTIAL       APACHE001180

I
                                             895

                                                                   APPENDIX B - Page 51
                                                                                          I
                                                                                          I
        IN WITNESS WHEREOF, the parties have caused this Agrec::ment to be executed by
their duly authoril".od Representatives, on the date first written above.
                                                                                          I
                                         SELLERS:

                                                                                          I
                                         BAILEY PEYTON
                                                                                          I
                                         GEORGE BAILEY PEYTON IV 2007 GRANTOR
                                         RETAINED ANNUITY TRUST NO. I
                                                                                          I
                                        By:
                                        Name:------------
                                        Title: Trustee                                    I
                                        UPLAND:                                           I
                                        UPLAND RESOURCES, INC.


                                        By:
                                                                                          I
                                        Name: Bailey Peyton
                                        Title: President
                                                                                          I
                                        BUYER:

                                       CORDILLERA ENERGY PARTNERS JJI, LLC
                                                                                          I
                                       By:        A-..U.~
                                       Name: George H. Solich
                                                                                          ,I
                                       Title: President

                                                                                          I
     SIGNATURE PAGE TO STOCK PURCHASE AND SALE AGREEMENT
                                                                                          I
                                                                                          I
                                                      CONFIDENTIAL         APACHE001181
                                                                                          I
                                          896

                                                              APPENDIX B - Page 52
..,_(.
                                                 EXHIBIT A
    I
    i,




                                                 CAUSE NO. 12,021


          AMARJLLO PRODUCTION COMPANY,                          §       IN TIIE 31st DISTRJCT COURT
          A Texas Corporation                                   §
                                                                §
                         Plaintiff                              §
                                                                §
         vs.                                                    §       JN AND FOR
                                                                §
         UPLAND RESOURCES, INC.,                                §
         A Texas Corporation                                    §
                                                                §
                         Defendant                              §       WHEELER COUNTY, TEXAS

               COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS

                This COMPROMISE AND SETTLEMENT AGREEMENT AND RELEASE OF ALL
         CLAIMS ("Agreement") is entered into by and between Amarillo Production Company, Paul A.
         Clark and Ronald Nickum (hereinafter referred to as "Plaintiff') and Defendant Upland
         Resources, Inc. (referred to as "Defendant") each of whom stipulates and agrees to the following:

                                                  I.       RECITALS

                A..     WHEREAS the Plaintiff filed suit against Defendant in Cause No. 12,021,
         pending in the 31st District Court in and for Wheeler County, Texas ("Litigation'');

                B.      WHEREAS all provisions of this Agreement are contractual in nature, and not
         mere recitals;

               C.      WHEREAS the Parties understand that this Agreement constitutes the final
         agreement contemplated in the Settlement Agreement and Rule 11 Agreement executed on
         October 23, 2007;

                 D.     WHEREAS this Agreement, and the execution thereof, does not, and is not
         intended to be, an admission of fault or wrongdoing by any party, and all Parties expressly
         disclaim any liability to any other party; and                                  '

                 E.      WHEREAS the Parties desire to reach a full and final settlement and resolution,
         have agreed to compromise and settle the Litigation, including any and all claims relating to any
         right or damage of any kind or character whatsoever by the Plaintiff against Defendant, whether
         now known or unknown, whether asserted in the above-styled and captioned lawsuit or not. This
         includes claims which the Plaintiff's affiliates, owners, subsidiaries or any other party in privity
         with the Plaintiff has or may have against Defendant and its respective subsidiaries, affiliates,
         officers, directors, insurers, agents, servants, employees, representatives and attorneys, whether


                                                       S   DEPOSITION
                                                       I    .EXHIBIT


                                                       1'' 426
                                                                                       CONFIDENTIAL APACHE001046




                                                                            APPENDIX C - Page 1
t.



                                                                            --
      herein named or not, for any damages, of any kind or character whatsoever, arising out of or
      related to the acts and omissions alluded to in the Plaintiffs pleadings in the Litigation.

            F.      WHEREAS the Parties understand that this Agreement contains the entire
     agreement of the Parties and the Parties warrant and represent that no promise or agreement not
     herein expressed has been made by any other party herein and that this Agreement is not
     executed in reliance upon any statement or representation made by any party not expressly
     contained herein.

                                   II.     SETTLEMENT AND RELEASE


            NOW, THEREFORE, in consideration of the mutual agreements, covenants,
     representations, stipulations, releases and tenns contained in this Agreement, the sufficiency of
     consideration is hereby mutually acknowledged, the Parties to this Agreement agree as follows:

             1.    Release of Defendant.            In return for the consideration outlined below, the
                   Plaintiff hereby releases, acquits and forever discharges Defendant and its
                   respective subsidiaries, affiliates, officers, directors, insurers, agents, servants,
                   employees, representatives and attorneys, whether herein named or not, of and
                   from any and all actions, claims, obligations, demands or lawsuits whatsoever,
                   which the Plaintiff now has or hereinafter may have on account of or in any
                   manner arising out of or relating to the damages, matters and allegations set forth,
                   alleged or alluded to or which might have been set forth, alleged or alluded to by
                   the Plaintiff in its pleadings filed in the Litigation and to which reference is made,
                   including the consequences of such damages, including any attorneys' fees, costs
                   or interest, directly or indirectly, by reason of any damages sustained by the
                   Plaintiff, it being the express intent of the Plaintiff to release Defendant.

            2.     No Admission of Liability. This Agreement is a compromise and settlement. It
                   is specifically understood and agreed by the Parties that the execution of this
                   Agreement is not an admission of liability on the part of any person or entity,
                   liability being expressly denied. By entering into this Agreement, the Parties do
                   not admit any legal or factual position or allegation that is or may be asserted in
                   any pending or future action or matter, or any liability, fault or wrongdoing of any
                   nature or kind whatsoever.

            3.     Dismissal With Prejudice. As consideration, it is agreed and understood that
                   the attorneys for the Parties will execute on behalf of the Parties the Agreed
                   Motion to Dismiss with Prejudice and an Agreed Order of Dismissal with
                   Prejudice of the Litigation, as styled above and as attached to this Agreement as
                   Exhibit A. The attorneys will execute the Motion and Order contemporaneously
                   with the execution of this Agreement. The Litigation shall be dismissed with
                   prejudice as to all causes of action alleged or which could have been alleged
                   therein by the Plaintiff and its respective affiliates, officers, directors, agents,
                   insurers, servants, employees, representatives and attorneys, whether herein
                   named or not, by entry of an appropriate order.



     COMPROMISE SETILEMENT AGREEMENT AND RELEASE OF ALL CLAIMS                            PAGE2
                                                                                  CONFIDENTIAL APACHE001047



                                                     427

                                                                        APPENDIX C - Page 2
.•




                   4.     Settlement Payment. Within ten days of Plaintiff's compliance with the
                          Plaintiffs obligations contained herein, Defendant shall pay to Amarillo
                          Production Company THREE HUNDRED TWENTY THOUSAND
                          DOLLARS ($320,000.00) paid to the order of "Amaril1o Production Company."
                          This payment will be proportionately reduced if Plaintiff is unable to deliver the
                          Top Leases, as hereinafter defined, covering an undivided I 00% of the mineral
                          interest. Plaintiff is responsible for any and all bonus payments due or to become
                          due to Lessors under the Top Leases.

                   5.     Attorneys' Fees, Expenses & Costs of Court.          The Parties agree that they
                          shall each bear their own attorneys' fees, expenses and costs of court, and that this
                          Agreement includes and releases any right to claim or recover such attorneys'
                          fees, expenses and costs of court.

                                                Ill.    SPECIAL TERMS

                  6.      Prior Lease. Subject to the provisions of paragraph 7 herein, the Defendant
                          agrees that it will release the prior Leases that are the subject of the Litigation.
                          The release is attached to this Agreement as Exhibit B.

                  7.     Top Leases. The Plaintiff agrees that it will assign to Cordillera Energy Partners
                         III, LLC or Defendant's designee the Top Leases, attached to this Agreement as
                         Exhibit C. The Top Leases will be the form that was provided to Defendant at the
                         meeting on October 23, 2007. The Top Leases will be assigned free and clear of
I                        all liens and encumbrances of any kind, provided that the Plaintiff will retain a
I                        five percent ORRI and the Plaintiff will assign a two percent ORRI to Peyton Oil
                         & Gas or its designee. The reservation and assignment is attached to this
                         Agreement as Exhibit D. It is agreed that no Top Lease applies to the mineral
                         interest of Jim Tom Higgins, and that the Oil, Gas and Mineral Lease dated
                         August 28, 1986, and recorded at Volume 353, Page 732, Deed Records of
                         Wheeler County, Texas, will remain in fu11 force and effect as to his undivided
                         interest in the East Half of Section 42, Block A-3, H&GN Survey, Wheeler
                         County, Texas, owned and leased by him, but only as to his interest, and the lease,
                         insofar as it covers that interest, is reserved in all of its terms, covenants and
                         conditions to Upland Resources, Inc. and is not and will not be released herein.

                  8.     Pooling.        The Plaintiff has caused all Lessors to execute a stipulation of a
                         pooling agreement that recognizes that the current production holds the Top
                         Leases as to 640 acres to a depth of 50 feet below the base of the lowest
                         producing horizon. In the event Lessors or any of them do not ratify or stipulate
                         as referenced, Defendant may tenninate this Agreement. The stipulation is
                         attached to this Agreement as Exhibit E.

                  9.     Smith Lease. The Plaintiff agrees that they will not, directly or indirectly, take or
                         attempt to take any leases with the mineral owners of the Smith Lease covering
                         Section 41, Block A-3, H&GN Survey, Wheeler County, Texas.
       \
     ~-)


           COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS                            PAGE3
                                                                                        CONFIDENTIAL APACHE001048



                                                           428

                                                                              APPENDIX C - Page 3
           .
           '




                       10.     Proportionate Reduction of ORRI. Plaintiff agrees to assign to Defendant a
                               two percent ORRI in the Top Leases in question. The Parties understand that
                               ORRI owners under the prior lease will lose their interests. However, Plaintiff
                               agrees that they will share on a proportionate basis any reduction in retained
                              override if such owners make a claim and the prior ORRI owners recover any
                              interest. The Parties understand that Defendant has a two percent ORRI and the
                              Plaintiff will have a three percent ORR!, and that any reduction shall be shared on
                              that basis. It is agreed, however, that Plaintiff and Defendant may jointly or
                              separately defend any action brought by third parties for recovery of overrides
                              under the prior lease or leases, and may jointly or separately settle or try any such
                              cases. If either Defendant or Plaintiff separately settles or tries any such action,
                              its override shall be reduced by the amount of override recovered, if any, by any
                              such third party without proportionate reduction. Only if the Plaintiff and
                              Defendant both settle or try such an action and lose will their override will be
                              proportionately reduced.

                                           IV.     CONFIDENTIALITY AGREEMENT


                      11.     Confidentiality Provision.      In consideration of the mutual covenants, the
                             sufficiency of which is hereby acknowledged, the Parties agree that the terms of
                             this Agreement, including the fact that the Plaintiff received payment from
                             Defendant, shall be kept forever confidential and shall not be revealed by either
                             Party or any of their attorneys to any person, party or individual, other than their
                             attorneys and co-counsel, and, if necessary, accountants. The Parties agree that,
                             should revelation of the tenns of this Agreement become necessary for
                             compliance with court order, it will give the other Party notice of such
                             requirement as soon as practicable. It is expressly agreed by the Parties that this
I                            confidentiality covenant constitutes a material component of this Agreement. It is
                             agreed, however, that either party may furnish infonnation eoncerning this
                             settlement to their tax or financial professional in connection with their internal
                             tax and financial affairs.


                                                 v.      .ADDITIONAL TERMS

                      12.    Authorship of Agreement. This Agreement was drafted jointly by the Parties
                             and their respective legal counsel, and is not to be construed or interpreted against
                             any of the Parties on the groW1ds of sole or primary authorship.

                      13.    Authority and Non-Assignment. As part of the consideration of this
                             Agreement, the Parties expressly represent and warrant to each other that they are
                             legally competent and authorized to execute this Agreement. Each of the Parties
                             represents and warrants to the other that it has not sold, assigned, granted, or
                             transferred to any other person or entity any claim, counterclaim, demand, action,

    ·~-)

               COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS                            PAGE4
                                                                                            CONFIDENTIAL APACHE001049



                                                               429

                                                                                  APPENDIX C - Page 4
      '.




                    or cause of action encompassed by this Agreement and that it is the rea1 party in
                    interest.

             14.    Modification or Alteration of Agreement. This Agreement may not be
                    modified, altered, revised, supplemented, or changed in any way, unless said
                    change be evidenced by a single writing that is executed by all Parties to this
                    Agreement or their heirs, successors, or assigns.

             15.    Headings.     The headings used in this Agreement are inserted solely for
                    convenience and shall not be used to interpret the meaning of this document.

             16.    Counterparts.           This instrument may be executed in multiple original
                    counterparts, each of which shal1 be deemed an original for all purposes. No
                    single counterpart of this Agreement need be executed by all of the Parties, so
                    long as each of the Parties shall have executed at least one counterpart. Facsimile
                    signatures shall be valid.

             17.   Governing Law, Venue and Jurisdiction. The rights and liabilities of the
                   Parties under this Agreement shall be governed as to validity, interpretation,
                   enforcement, effect and damages by the laws of the State of Texas, without regard
                   to any rules, statutes, or case law regarding conflicts of law. Potter County, Texas
                   shall be the appropriate and exclusive venue for any suit arising out of this
                   Agreement.

            19.    Entire Agreement. This Agreement contains the entire agreement and all
                   understandings between the Parties relating to the resolution of the Litigation, and
                   supersedes any and all prior agreements, arrangements, or understandings of
                   whatever nature between the Parties.

            20.    References. References herein to the singular or plural shall be deemed to
                   include the other unless the circumstances eliminate such inclusion.

            21.    Effective Date of Agreement.         With the exception of the Confidentiality
                   Provision referenced in Section JV above, this Agreement is effective the first day
                   that the Agreement bears the signature of all Parties and their representatives.

            22.    Binding Agreement. All of the terms of this Agreement shall be binding upon
                   the Parties' heirs, successors, and assigns. This agreemtint is intended to be
                   fully binding and is not revocable. Any party who unsuccessfully seeks to
                   void, invalidate, or set aside this Agreement shall be liable for attorneys' fees
                   and court costs incurred by opposing Parties in connection therewith.




 i
_/



     COMPROMISE SETILEMENT AGREEMENT AND RELEASE OF ALL CLAIMS                          PAGES
                                                                                CONFIDENTIAL APACHE001050



                                                     430

                                                                       APPENDIX C - Page 5
 ..

 EXECUTED this 31st day of October, 2007.
                                                             --
 Amarillo Production Company


 By: _ __ _~
           ::.c:--=-~:..;:t;-~---/':'.-~--­
 Paul A. Clark, Individually and as President
 of Amarillo Production Company



  ona)d Nickum, Individually and as Counsel
 For Amarillo Production Company



Upland Resources, Inc.




451620.1
8902.2




COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS              PAGE6
                                                               CONFIDENTIAL APACHE001051



                                                431

                                                            APPENDIX C - Page 6
