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Contract analysis / dd-memo-litigation.docx
dd-memo-litigation.docx
1016-00003 · 52 clauses
High · 5 Medium · 12 Standard · 7
I. EXECUTIVE SUMMARY Medium
⚑ Forum / governing law
I. EXECUTIVE SUMMARY This memorandum summarizes the results of the litigation due diligence conducted by Calderwood & Harkness LLP in connection with the proposed offering of $850,000,000 aggregate principal amount of 9.375% Senior Secured Notes due 2032 (the "Notes") by Dunmore Energy Holdings Ltd., a Cayman Islands exempted company ("DEH" or the "Company"), and Dunmore upstream Finance Corp., a Delaware corporation
II. METHODOLOGY High
⚑ Penalty / liquidated damages
II. METHODOLOGY A. Document and Information Sources The litigation due diligence review was conducted based on the following document and information sources: Management Materials. We prepared and delivered a Master Due Diligence Request List to Dunmore, which included a comprehensive category devoted to litigation, proceedings, claims, and investigations. In response, management provided access to relevant files, co
III. SUMMARY OF PENDING LITIGATION Medium
⚑ Forum / governing law
III. SUMMARY OF PENDING LITIGATION Set forth below is a summary of all pending litigation, arbitration, and regulatory proceedings identified through our due diligence review, organized by entity. We have identified a total of ten matters, of which four are recommended for individual disclosure in the Offering Memorandum. A. Dunmore Nigeria E&P Ltd. — Nigerian Matters
1. Community Compensation Proceedings — OML 47 (Niger Delta). Forum: Federal High Court, Standard
⚑ Commercial term
1. Community Compensation Proceedings — OML 47 (Niger Delta). Forum: Federal High Court, Lagos Division Parties: Ogbara Community Development Association and 47 individual plaintiffs v. Dunmore Nigeria E&P Ltd. Case Number: FHC/L/CS/1847/2022 Nature of Claims: The plaintiffs, comprising the Ogbara Community Development Association (an unincorporated community organization representing residents of several communities
2. Tax Assessment Dispute — Federal Inland Revenue Service (FIRS). Forum: Tax Appeal Trib High
⚑ Penalty / liquidated damages
2. Tax Assessment Dispute — Federal Inland Revenue Service (FIRS). Forum: Tax Appeal Tribunal, Lagos Zone Parties: Federal Inland Revenue Service v. Dunmore Nigeria E&P Ltd. Case Number: TAT/LZ/PPT/009/2024 Nature of Claims: The Federal Inland Revenue Service ("FIRS") has issued an additional assessment for petroleum profits tax for fiscal years 2021 and 2022 against Dunmore Nigeria E&P Ltd. The FIRS asserts that Dun
3. NNPC Back-In Rights Dispute — OML 63. Forum: No formal proceedings have been filed. Th Medium
⚑ Forum / governing law
3. NNPC Back-In Rights Dispute — OML 63. Forum: No formal proceedings have been filed. The dispute is currently at the negotiation and pre-litigation stage. Nature of Dispute: Dunmore Nigeria E&P Ltd. and the Nigerian National Petroleum Company ("NNPC") are engaged in a dispute regarding the calculation and timing of NNPC's exercise of its back-in right in OML 63. Under the terms of the OML 63 production sharing cont
4. Personal Injury Claim — Green Canyon Platform. Forum: United States District Court, So Standard
⚑ Commercial term
4. Personal Injury Claim — Green Canyon Platform. Forum: United States District Court, Southern District of Texas, Houston Division Parties: James Kowalski (individual contractor) v. Dunmore Gulf Operations LLC, et al. Case Number: 4:23-cv-04218 Nature of Claims: James Kowalski, an individual who was employed as a contract worker by a third-party service provider aboard Dunmore Gulf Operations LLC's production platfo
5. BSEE Civil Penalty — Garden Banks Lease. Forum: Administrative proceeding before the B High
⚑ Penalty / liquidated damages
5. BSEE Civil Penalty — Garden Banks Lease. Forum: Administrative proceeding before the Bureau of Safety and Environmental Enforcement ("BSEE") Nature of Proceeding: In 2024, BSEE issued three Incidents of Noncompliance ("INCs") to Dunmore Gulf Operations LLC relating to safety equipment testing requirements at the company's production facility on Garden Banks Block 387. The INCs alleged that Dunmore failed to conduc
6. Landowner Lease Dispute — West Texas. Forum: 143rd District Court, Reeves County, Texa Standard
⚑ Commercial term
6. Landowner Lease Dispute — West Texas. Forum: 143rd District Court, Reeves County, Texas Parties: Henderson Ranch Properties LLC v. Dunmore Renewables LLC Cause Number: 25-03-17829-CV Nature of Claims: Henderson Ranch Properties LLC, a Texas limited liability company and the fee owner of approximately 640 acres of land in Reeves County, Texas, has brought claims against Dunmore Renewables LLC alleging breach of a s
7. Subcontractor Payment Dispute — Cayar Offshore Block. Forum: Tribunal Régional Hors Cl Standard
⚑ Commercial term
7. Subcontractor Payment Dispute — Cayar Offshore Block. Forum: Tribunal Régional Hors Classe de Dakar (Dakar Regional Court) Parties: Compagnie Africaine de Services Maritimes SARL v. Dunmore Senegal S.A. Case Number: TRD/COM/2024/1478 Nature of Claims: Compagnie Africaine de Services Maritimes SARL ("CASM"), a Senegalese limited liability company that provided marine logistics and seismic survey support services to
8. Offtake Contract Dispute — LCIA Arbitration. Forum: London Court of International Arbi Medium
⚑ Forum / governing law
8. Offtake Contract Dispute — LCIA Arbitration. Forum: London Court of International Arbitration ("LCIA") Parties: Dunmore Trading Ltd. v. Grandview Commodities Trading AG; counterclaim by Grandview Commodities Trading AG v. Dunmore Trading Ltd. LCIA Reference Number: 25-0287 Nature of Claims: This dispute arises under a crude oil offtake agreement between Dunmore Trading Ltd. and Grandview Commodities Trading AG ("G
9. Environmental Notice of Violation — Pipeline Spill. Forum: Texas Commission on Environ High
⚑ Penalty / liquidated damages
9. Environmental Notice of Violation — Pipeline Spill. Forum: Texas Commission on Environmental Quality ("TCEQ") Nature of Proceeding: In January 2025, the TCEQ issued a Notice of Violation ("NOV") to Dunmore Midstream Holdings Inc. in connection with a minor crude oil release of approximately 12 barrels from a gathering pipeline operated by Dunmore Midstream in Midland County, Texas. The release was detected by Dunm
10. Securities-Related Demand Letter — Former Employee. Forum: No formal proceedings have Standard
⚑ Commercial term
10. Securities-Related Demand Letter — Former Employee. Forum: No formal proceedings have been filed. Nature of Claim: In February 2025, Dunmore Energy Holdings Ltd. received a demand letter from a former employee of its Houston office. The former employee alleges wrongful termination and asserts potential whistleblower retaliation claims under Section 21F of the Securities Exchange Act of 1934 (the Dodd-Frank Wall S
IV. THREATENED OR POTENTIAL MATTERS
IV. THREATENED OR POTENTIAL MATTERS In addition to the pending matters described in Section III above, we have assessed whether there are additional threatened or potential matters that warrant disclosure or monitoring. NNPC Back-In Rights Dispute (OML 63). As discussed in Section III.A.3 above, the dispute with NNPC regarding back-in rights in OML 63 is the most significant pre-litigation matter identified in this r
V. INSURANCE COVERAGE SUMMARY Medium
⚑ Forum / governing law
V. INSURANCE COVERAGE SUMMARY In connection with our litigation due diligence, we have reviewed the principal insurance policies maintained by Dunmore that are relevant to the coverage of litigation exposures identified in this memorandum. Set forth below is a summary of the relevant coverage: General Liability and Umbrella Coverage. Dunmore's general liability and umbrella insurance program, underwritten by Thornfie
VI. AGGREGATE EXPOSURE ASSESSMENT
VI. AGGREGATE EXPOSURE ASSESSMENT The following table summarizes each matter identified in this review, together with the estimated probable exposure range, applicable insurance coverage offset, and estimated net exposure: Aggregate Estimated Net Probable Exposure (Excluding NNPC Dispute). Excluding the NNPC back-in rights dispute, the aggregate estimated net probable exposure from all other pending and threatened ma
VII. OM DISCLOSURE RECOMMENDATIONS
VII. OM DISCLOSURE RECOMMENDATIONS A. Matters Recommended for Individual Disclosure Based on our review, we recommend that the following four matters be individually disclosed in the litigation section of the Offering Memorandum:
1. OML 47 Community Compensation Proceedings (Section III.A.1). We recommend a brief factu Standard
⚑ Commercial term
1. OML 47 Community Compensation Proceedings (Section III.A.1). We recommend a brief factual description of the claims, noting the forum, the amount claimed, and the current procedural status. The disclosure should include management's assessment that the ultimate resolution of this matter is not expected to have a material adverse effect on Dunmore's consolidated financial condition or results of operations. This ma
2. FIRS Tax Assessment Dispute (Section III.A.2). We recommend a factual description of th Standard
⚑ Commercial term
2. FIRS Tax Assessment Dispute (Section III.A.2). We recommend a factual description of the FIRS additional assessment, noting the amount of the assessment, the basis for the dispute, the current procedural status, and the fact that management has reserved approximately $2.1 million against this matter. This matter is recommended for disclosure to provide investors with a complete picture of the Company's tax positio
3. NNPC Back-In Rights Dispute — OML 63 (Section III.A.3). We recommend a more detailed de
3. NNPC Back-In Rights Dispute — OML 63 (Section III.A.3). We recommend a more detailed description of this dispute given its potential exposure range of $15 million to $30 million and the significance of OML 63 to Dunmore's asset base. OML 63 has proved reserves of 87.3 MMboe and a PV-10 value of $1,620,000,000 as estimated by Duval Howard & Partners in its independent reserve report. The disclosure should describe
4. LCIA Offtake Arbitration — Dunmore Trading Ltd. (Section III.E.8). We recommend a brief High
⚑ Penalty / liquidated damages
4. LCIA Offtake Arbitration — Dunmore Trading Ltd. (Section III.E.8). We recommend a brief description of this arbitration, noting the nature of the claims and counterclaim, the amount of the counterclaim, and management's assessment. This matter is recommended for disclosure because Dunmore Trading Ltd. is a Guarantor of the Notes, and the existence of an active arbitration involving a Guarantor is information that
VIII. INTERACTION WITH OTHER DUE DILIGENCE WORKSTREAMS Medium
⚑ Forum / governing law
VIII. INTERACTION WITH OTHER DUE DILIGENCE WORKSTREAMS The litigation due diligence review described in this memorandum has been coordinated with several other due diligence workstreams being conducted by Calderwood & Harkness LLP and other advisors in connection with the offering. Set forth below are the principal cross-references to related workstreams: Due Diligence Memorandum — Regulatory and Licensing. Our litig
IX. OPEN ITEMS AND FOLLOW-UP
IX. OPEN ITEMS AND FOLLOW-UP The following items remain open and require follow-up before the Final OM date (May 14, 2025) and the closing date (May 15, 2025):
1. NNPC Back-In Rights Negotiations. Obtain an updated status report from Alistair Forde,
1. NNPC Back-In Rights Negotiations. Obtain an updated status report from Alistair Forde, General Counsel of DEH, regarding the progress of commercial negotiations with NNPC on the OML 63 back-in rights dispute. Any material developments in the negotiations should be reflected in the Final OM disclosure. Responsible: Eric Johannsen. Target Date: May 12, 2025.
2. OML 47 Community Proceedings. Confirm with Abayomi Chambers (Chidinma Okafor) whether a
2. OML 47 Community Proceedings. Confirm with Abayomi Chambers (Chidinma Okafor) whether any new proceedings, amended pleadings, or motions have been filed in the OML 47 community compensation matter since the date of Ms. Okafor's most recent report. Responsible: Claire Dempsey. Target Date: May 10, 2025.
3. Whistleblower Demand Monitoring. Monitor whether the former employee who submitted the
3. Whistleblower Demand Monitoring. Monitor whether the former employee who submitted the demand letter described in Section III.G.10 files a formal complaint or lawsuit before the closing date. If a complaint is filed invoking Dodd-Frank whistleblower protections, the OM disclosure obligation must be reassessed. Responsible: Eric Johannsen. Target Date: Ongoing through May 15, 2025.
4. Bring-Down Litigation Certificate. Request a bring-down litigation certificate from man Medium
⚑ Forum / governing law
4. Bring-Down Litigation Certificate. Request a bring-down litigation certificate from management at closing, confirming that no new material legal proceedings, arbitrations, or governmental investigations have been commenced or threatened since the date of the Preliminary OM (April 28, 2025), and that the information provided in the management litigation questionnaire remains accurate and complete in all material re
5. LCIA Arbitration Procedural Update. Coordinate with Cresswell & Greaves LLP (Fiona Hals Medium
⚑ Forum / governing law
5. LCIA Arbitration Procedural Update. Coordinate with Cresswell & Greaves LLP (Fiona Halsted) to obtain an update on the LCIA arbitration procedural calendar, including any developments relating to the exchange of written submissions, the scheduling of the substantive hearing, and any interim applications by either party. Responsible: Claire Dempsey. Target Date: May 12, 2025.
X. CONCLUSION
X. CONCLUSION Based on the comprehensive review described in this memorandum, we have reached the following conclusions:
1. No Material Adverse Effect. No pending or threatened litigation matter, individually o
1. No Material Adverse Effect. No pending or threatened litigation matter, individually or in the aggregate, is expected to have a material adverse effect on Dunmore's consolidated financial condition, results of operations, or ability to service the $850,000,000 9.375% Senior Secured Notes due 2032. The aggregate estimated net probable exposure from all identified matters (including the NNPC dispute at the high end)
2. Individual Disclosure Recommendations. Four matters are recommended for individual dis Medium
⚑ Forum / governing law
2. Individual Disclosure Recommendations. Four matters are recommended for individual disclosure in the Offering Memorandum, as described in Section VII.A: (i) the OML 47 community compensation proceedings; (ii) the FIRS tax assessment dispute; (iii) the NNPC back-in rights dispute relating to OML 63; and (iv) the LCIA offtake arbitration involving Dunmore Trading Ltd.
3. Continued Monitoring Required. Continued monitoring of the open items identified in Se
3. Continued Monitoring Required. Continued monitoring of the open items identified in Section IX is required through the closing date of May 15, 2025. In particular, the NNPC back-in rights dispute and the former employee whistleblower demand should be closely tracked for any developments that could alter the disclosure analysis.
4. Coordination with Initial Purchasers' Counsel. Final litigation disclosure language in
4. Coordination with Initial Purchasers' Counsel. Final litigation disclosure language in the Offering Memorandum should be coordinated with Whitfield Baxter & Cohn LLP (Harrison Cates and Priya Naveen) to ensure adequacy for Rule 10b-5 purposes. We are available to discuss the findings and recommendations in this memorandum at your convenience. Respectfully submitted, CALDERWOOD & HARKNESS LLP By: ________ Eric Joha
1. Master Due Diligence Request List — Category: Litigation/Proceedings (transmitted to D
1. Master Due Diligence Request List — Category: Litigation/Proceedings (transmitted to Dunmore April 1, 2025)
2. Management Litigation Questionnaire completed by Alistair Forde, General Counsel, DEH
2. Management Litigation Questionnaire completed by Alistair Forde, General Counsel, DEH (received April 10, 2025)
3. Officer's Certificate — Dunmore Nigeria E&P Ltd. (signed by Emeka Onyekachi, Managing
3. Officer's Certificate — Dunmore Nigeria E&P Ltd. (signed by Emeka Onyekachi, Managing Director, dated April 12, 2025)
4. Officer's Certificate — Dunmore Gulf Operations LLC (signed by Robert Hale, President,
4. Officer's Certificate — Dunmore Gulf Operations LLC (signed by Robert Hale, President, dated April 11, 2025)
5. Officer's Certificate — Dunmore Renewables LLC (signed by Samantha Polk, Vice Presiden
5. Officer's Certificate — Dunmore Renewables LLC (signed by Samantha Polk, Vice President, dated April 11, 2025)
6. Officer's Certificate — Dunmore Senegal S.A. (signed by Amadou Diallo, Directeur Génér
6. Officer's Certificate — Dunmore Senegal S.A. (signed by Amadou Diallo, Directeur Général, dated April 14, 2025)
7. Officer's Certificate — Dunmore Midstream Holdings Inc. (signed by Kevin Brewer, Presi
7. Officer's Certificate — Dunmore Midstream Holdings Inc. (signed by Kevin Brewer, President, dated April 11, 2025)
8. Officer's Certificate — Dunmore Trading Ltd. (signed by Marcus Holt, Director, dated A
8. Officer's Certificate — Dunmore Trading Ltd. (signed by Marcus Holt, Director, dated April 13, 2025)
9. Supplemental management responses to follow-up questions (various dates, April 15–25,
9. Supplemental management responses to follow-up questions (various dates, April 15–25, 2025) Court Filings and Docket Records
10. Federal High Court, Lagos — Suit No. FHC/L/CS/1847/2022 — Complete docket and pleadin
10. Federal High Court, Lagos — Suit No. FHC/L/CS/1847/2022 — Complete docket and pleadings (Ogbara Community v. Dunmore Nigeria E&P Ltd.)
11. Tax Appeal Tribunal, Lagos Zone — Case No. TAT/LZ/PPT/009/2024 — Notice of Appeal, FI Medium
⚑ Notice / time limit to track
11. Tax Appeal Tribunal, Lagos Zone — Case No. TAT/LZ/PPT/009/2024 — Notice of Appeal, FIRS Assessment Order, and Dunmore's Response (FIRS v. Dunmore Nigeria E&P Ltd.)
12. U.S. District Court, S.D. Tex. — Case No. 4:23-cv-04218 — Complete docket and pleadin
12. U.S. District Court, S.D. Tex. — Case No. 4:23-cv-04218 — Complete docket and pleadings (Kowalski v. Dunmore Gulf Operations LLC) 13. 143rd District Court, Reeves County, Texas — Cause No. 25-03-17829-CV — Original Petition (Henderson Ranch Properties LLC v. Dunmore Renewables LLC)
14. Tribunal Régional Hors Classe de Dakar — Case No. TRD/COM/2024/1478 — Complaint and i
14. Tribunal Régional Hors Classe de Dakar — Case No. TRD/COM/2024/1478 — Complaint and initial hearing order (CASM v. Dunmore Senegal S.A.)
15. LCIA — Reference No. 25-0287 — Request for Arbitration, Response and Counterclaim, an Medium
⚑ Forum / governing law
15. LCIA — Reference No. 25-0287 — Request for Arbitration, Response and Counterclaim, and Procedural Order No. 1 (Dunmore Trading Ltd. v. Grandview Commodities Trading AG) Local Counsel Reports
16. Abayomi Chambers — Litigation Status Report: Dunmore Nigeria E&P Ltd. (prepared by Ch
16. Abayomi Chambers — Litigation Status Report: Dunmore Nigeria E&P Ltd. (prepared by Chidinma Okafor, dated April 18, 2025)
17. Abayomi Chambers — Memorandum re NNPC Back-In Rights Dispute: OML 63 (prepared by Chi
17. Abayomi Chambers — Memorandum re NNPC Back-In Rights Dispute: OML 63 (prepared by Chidinma Okafor, dated April 20, 2025)
18. Theron Moss & Associates SARL — Litigation Status Report: Dunmore Senegal S.A. (prepa
18. Theron Moss & Associates SARL — Litigation Status Report: Dunmore Senegal S.A. (prepared by Moustapha Sy, dated April 16, 2025)
19. Cresswell & Greaves LLP — Memorandum re LCIA Arbitration: Dunmore Trading Ltd. v. Gra Medium
⚑ Forum / governing law
19. Cresswell & Greaves LLP — Memorandum re LCIA Arbitration: Dunmore Trading Ltd. v. Grandview Commodities Trading AG (prepared by Fiona Halsted, dated April 22, 2025) Regulatory Records
20. BOEM/BSEE — Incident of Noncompliance records for Green Canyon Block 248 and Gard
20. BOEM/BSEE — Incident of Noncompliance records for Green Canyon Block 248 and Gard