PURCHASE AND SALE AGREEMENT dated effective as of October 5, 2007 between Hallador Petroleum Company, as Purchaser and Savoy Energy Limited Partnership, as Seller
EXHBIT
10.6
dated
effective as of October 5, 2007
between
Hallador
Petroleum Company,
as
Purchaser
and
Savoy
Energy Limited Partnership,
as
Seller
1-LA/947404.9
1.1Definitions1
1.2Other
Defined
Terms2
ARTICLE IIPURCHASE
AND
SALE2
2.1Purchase
and Sale
of the Additional Partnership Interest2
2.2Consideration3
2.3Transactions
to be
Effected at the Closing3
2.4Closing
Date3
ARTICLE IIIREPRESENTATIONS
AND
WARRANTIES OF SELLER3
3.1Organization3
3.2Authorization
and
Enforceability3
3.3No
Conflicts;
Authorization4
3.4No
Brokers or
Finders4
ARTICLE IVREPRESENTATIONS
AND
WARRANTIES OF PURCHASER4
4.1Organization4
4.2Authority
and
Enforceability4
4.3No
Conflicts;
Authorizations5
4.4Investment
Representations5
4.5Brokers
or
Finders5
ARTICLE VCONDITIONS
TO
CLOSING5
5.1Conditions
to
Obligations of Purchaser5
5.2Conditions
to
Obligations of Seller6
ARTICLE VIPOST-CLOSING
COVENANTS7
6.1Post-Closing
Notifications7
6.2Certain
Tax
Matters7
6.3Further
Assurances7
ARTICLE VIITERMINATION7
7.1Termination7
7.2Effect
of
Termination8
7.3Remedies8
ARTICLE VIIIINDEMNIFICATION9
8.1Survival9
8.2Indemnification9
8.3Notice
and
Opportunity to Defend9
8.4Contingent
Claims10
8.5Tax
Treatment of
Indemnification Payments10
8.6Exclusive
Remedy10
ARTICLE IXMISCELLANEOUS10
9.1Notices10
9.2Amendments
and
Waivers11
9.3Expenses12
9.4Successors
and
Assigns12
9.5Governing
Law12
9.6Consent
to
Jurisdiction12
9.7Counterparts12
9.8Third
Party
Beneficiaries12
9.9Entire
Agreement13
9.10Captions13
9.11Severability13
9.12Interpretation13
|
1-LA/947404.9
|
TABLE
OF
CONTENTS
(continued)
Page
This
PURCHASE AND
SALE AGREEMENT (this “Agreement”),
dated as of
October 5, 2007, is entered into by and between Hallador Petroleum Company,
a Colorado corporation (“Purchaser”),
and Savoy
Energy Limited Partnership, a Michigan limited partnership (“Seller”).
RECITALS:
A. Purchaser
is a
limited partner of Seller, and its chief executive officer serves as one of
three members of the Executive Committee of Seller.
B. As
of the date of
this Agreement, Purchaser owns a 32.303328% limited partnership interest in
Seller.
C. Upon
the terms and
subject to the conditions set forth in this Agreement, Purchaser wishes to
purchase from Seller, and Seller wishes to sell to Purchaser, a 13.102581%
limited partnership interest in Seller (the “Additional
Partnership Interest”).
Following such
purchase and sale, Purchaser will hold a 45.405909% limited partnership interest
in Seller.
NOW,
THEREFORE, in
consideration of the foregoing premises and the respective representations
and
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
When used in this
Agreement, the following terms shall have the meanings assigned to them in
this
Section 1.1,
or in the
applicable Section of this Agreement to which reference is made in this
Section 1.1.
“Affiliate”
means,
with
respect to any specified Person, any other Person directly or indirectly
controlling, controlled by or under common control with such specified
Person.
“Business
Day”
means
a day other
than a Saturday, Sunday or other day on which banks located in Detroit, Michigan
are authorized or required by Law to close.
“Certificate”
means
the
Certificate of Limited Partnership of Seller filed with the Michigan Department
of Labor and Economic Growth, as the same may be amended from time to
time.
“Governmental
Entity”
means
any entity
or body exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to United States federal, state,
local, or municipal government, foreign, international, multinational or other
government, including any department, commission, board, agency, bureau,
subdivision, instrumentality, official or other regulatory, administrative
or
judicial authority thereof.
“Law”
means
any
statute, law (including common law), treaty, ordinance, code, order, decree,
judgment, rule, regulation and any other binding requirement or determination
of
any Governmental Entity.
“Lien”
means,
with
respect to any property or asset, any mortgage, lien, pledge, charge, security
interest, adverse claim or other encumbrance in respect of such property or
asset.
“Losses”
means
any and all
losses, liabilities, claims, demands, fines, judgments, orders, settlements,
damages and any related expenses (including, without limitation, reasonable
legal, accounting, consulting and investigation expenses and litigation costs),
but excluding consequential damages or any damages based upon a multiple of
damages or similar theory.
“Order”
means
any
award,
injunction, judgment, decree, order, ruling, subpoena or verdict or other
decision issued,
promulgated
or entered by or with any Governmental Entity of competent
jurisdiction.
“Person”
means
an
individual, a corporation, a partnership, a limited liability company, a trust,
an unincorporated association, a Governmental Entity or any agency,
instrumentality or political subdivision of a Governmental Entity, or any other
entity or body.
1.2 Other
Defined
Terms.
The following
terms have the meanings assigned to such terms in the Sections of the Agreement
set forth below:
|
Acquisition
|
2.1
|
|
Additional
Partnership Interest
|
Recitals
|
|
Agreement
|
Preamble
|
|
Asserted
Liability
|
8.3(a)
|
|
Closing
|
2.4
|
|
Closing
Date
|
2.4
|
|
Indemnitee
|
8.3(a)
|
|
Indemnifying
Party
|
8.3(a)
|
|
Partnership
Agreement
|
3.1
|
|
Permitted
Restrictions
|
2.1
|
|
Purchase
Price
|
2.2
|
|
Purchaser
|
Preamble
|
|
Seller
|
Preamble
|
ARTICLE II
PURCHASE
AND SALE
2.1 Purchase
and
Sale of the Additional Partnership Interest.
Upon the terms
and subject to the conditions of this Agreement, at the Closing, Seller shall
sell to Purchaser, and Purchaser shall purchase from Seller, the Additional
Partnership Interest free and clear of all Liens other than restrictions on
transfer imposed under the Certificate and the Partnership Agreement (the
“Permitted
Restrictions”).
The purchase
and sale of the Additional Partnership Interest is referred to in this Agreement
as the “Acquisition.”
2.2 Consideration.
At the Closing,
Purchaser shall pay to Seller an amount equal to U.S. $6,000,000.00 (the
“Purchase
Price”)
by wire transfer
of immediately available funds to the bank account set forth on Schedule 2.2.
2.3 Transactions
to
be Effected at the Closing.
(a) At
the Closing
Purchaser shall deliver to Seller all documents, instruments or certificates
required to be delivered by Purchaser to Seller at the Closing pursuant to
this
Agreement.
(b) At
the Closing
Seller shall deliver to Purchaser (i) all certificates representing or
evidencing the Additional Partnership Interest, if any, (ii) all other
documents and instruments necessary to vest in Purchaser all of Seller’s right,
title and interest in and to the Additional Partnership Interest, free and
clear
of all Liens (other than the Permitted Restrictions), and (iii) all other
documents, instruments or certificates required to be delivered by Seller to
Purchaser at the Closing pursuant to this Agreement.
2.4 Closing
Date.
The closing of
the Acquisition (the “Closing”)
shall be
coordinated by ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
and shall take place on October 5, 2007, unless another time, date or place
is agreed to in writing by the parties. The date upon which the Closing occurs
is herein referred to as the “Closing
Date.”
ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
represents,
warrants and covenants to Purchaser as of the date hereof and as of the Closing
Date that:
3.1 Organization.
Seller is a
limited partnership existing in good standing under the Laws of Michigan and
has
all requisite power and authority to own, lease, and operate its assets and
to
carry on its business as presently conducted. Seller is duly qualified or
licensed to do business as a foreign limited partnership and is in good standing
in each jurisdiction in which the activity of Seller in such jurisdiction
thereby makes such qualification necessary. Except
for the
Third Amended and Restated Agreement of Limited Partnership of Seller dated
October 5, 2007 (the “Partnership
Agreement”),
there is no
voting trust, proxy, or other agreement or understanding between or among any
Persons that affects or relates to the voting or giving of written consent
with
respect to Seller.
3.2 Authorization
and Enforceability.
Seller has all
requisite power and authority to execute and deliver this Agreement, to perform
Seller’s obligations hereunder and to consummate the transactions contemplated
hereby. Seller has the full power to issue the Additional Partnership Interest
to Purchaser in accordance with the terms of this Agreement, free and clear
of
all Liens (other than the Permitted Restrictions). The execution and delivery
of
this Agreement and the consummation of the transactions contemplated hereby
have
been duly and validly authorized by Seller and no other proceedings by Seller
or
the partners of Seller are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Seller, and constitutes the valid and
binding obligation of Seller enforceable against Seller in accordance with
its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar Laws affecting or
relating to creditors’ rights generally, or general principles of
equity.
3.3 No
Conflicts;
Authorization.
The execution and
delivery by Seller of this Agreement do not, and the consummation of the
Acquisition by Seller will not:
(a) conflict
with or
result in a violation or breach of any of the terms, conditions or provisions
of
the Certificate, Partnership Agreement or similar organization documents of
Seller;
(b) conflict
with or
result in a material violation or breach of any Law or Order applicable to
Seller or any of Seller’s assets and properties or require any consent or
approval of or any notice or filing with any Governmental Entity or other third
party; or
(c) conflict
with or
result in a breach or violation of, or default under, or give rise to any right
of acceleration or termination of, any of the terms, conditions or provisions
of, any note, bond, lease, license, agreement or other instrument or obligation
to which Seller is a party or by which Seller’s assets or properties are
bound.
3.4 No
Brokers or
Finders.
Seller has not
incurred and will not incur, directly or indirectly, as a result of any action
taken or permitted to be taken by or on behalf of Seller, any liability for
brokerage or finders’ fees or agents’ commissions or similar charges in
connection with the execution and performance of the transactions contemplated
by this Agreement.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants as of the date hereof and as of the Closing
Date:
4.1 Organization.
Purchaser is a
corporation existing in good standing under the Laws of Colorado and has all
requisite power and authority to own, lease, and operate its assets and to
carry
on its business as presently conducted. Purchaser is duly qualified or licensed
to do business as a foreign corporation and is in good standing in each
jurisdiction in which the activity of Seller in such jurisdiction thereby makes
such qualification necessary.
4.2 Authority
and
Enforceability.
Purchaser has all
requisite power and authority to execute and deliver this Agreement, to perform
Purchaser’s obligations hereunder 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 action on the part of Purchaser and no other
proceedings by Purchaser are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Purchaser and constitutes the valid and
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar Laws
affecting or relating to creditors’ rights generally, or general principles of
equity.
4.3 No
Conflicts;
Authorizations.
The execution and
delivery of this Agreement by Purchaser does not, and the consummation of the
Acquisition by Purchaser will not:
(a) conflict
with or
result in a violation or breach of any of the terms, conditions or provisions
of
the charter, bylaws or similar organization documents of Purchaser;
(b) conflict
with or
result in a material violation or breach of any Law or Order applicable to
Purchaser or any of Purchaser’s assets and properties or require any consent or
approval of or any notice or filing with any Governmental Entity or other third
party; or
(c) conflict
with or
result in a breach or violation of, or default under, or give rise to any right
of acceleration or termination of, any of the terms, conditions or provisions
of, any note, bond, lease, license, agreement or other instrument or obligation
to which Purchaser is a party or by which Purchaser’s assets or properties are
bound.
4.4 Investment
Representations.
The Additional
Partnership Interest is being acquired for Purchaser’s own account for
investment only and not with a view to any sale or other distribution thereof.
Purchaser understands that the Partnership Agreement and applicable Law
prohibits Purchaser from offering to sell or otherwise dispose of, or selling
or
otherwise disposing of, the Additional Partnership Interest so acquired by
it in
violation of any Law, including, but not limited to, the Securities Act of
1933,
as amended (the “Act”),
and applicable
state securities laws. Purchaser acknowledges that its designee is a member
of
Seller’s Executive Committee, that it is familiar with Seller’s business
operations and prospects, and that it has had the opportunity to review all
information and to make all investigations that it desired regarding Seller
prior to making the Acquisition. Purchaser is an “accredited investor” within
the meaning of Rule 501(a) of Regulation D promulgated pursuant to the Act.
The
Additional Partnership Interest has not been offered or sold by means of any
general advertising or general solicitation.
4.5 Brokers
or
Finders.
Purchaser has not
incurred and will not incur, directly or indirectly, any liability for any
brokerage, finder’s or other fee or commission in connection with the
transactions contemplated by this Agreement.
ARTICLE V
CONDITIONS
TO CLOSING
The
obligations of
Purchaser and Seller to effect the transactions contemplated hereby are subject
to the satisfaction at or prior to the Closing of the following
conditions:
5.1 Conditions
to
Obligations of Purchaser.
(a) Representations
and Warranties of Seller.
The
representations and warranties of Seller shall be true and correct as of the
Closing Date.
(b) Agreements
and
Covenants.
Seller shall have
performed and complied in all material respects with each agreement, covenant
and obligation required by it pursuant to this Agreement to be so performed
or
complied with by Seller at or before the Closing.
(c) Partnership
Agreement.
Seller shall
deliver to Purchaser a copy of the Partnership Agreement, signed by each of
the
partners except Purchaser, the form of which is attached hereto as Exhibit
A.
(d) Officer’s
Certificate.
An authorized
officer of Seller shall have delivered to Purchaser at the Closing a certificate
stating that all approvals necessary to consummate the transactions contemplated
by this Agreement have been obtained and attaching thereto: (i) a
copy of the
Certificate, certified by the Michigan Department of Labor and Economic Growth
and certified by the general partner of Seller as the true and correct copy
of
the Certificate as of the Closing; (ii)
a copy of the
Second Amended and Restated Agreement of Limited Partnership (the “Second
Partnership Agreement”), dated as of February 1, 2003, certified by the
general partner of Seller as the true and correct copy of the Second Partnership
Agreement as of the Closing; (iii)
a copy of the
consent of the Executive Committee of Seller, evidencing the approval of this
Agreement and the transactions contemplated hereby; and (iv) a
copy of the
waiver by each of the Partners of Seller, waiving their respective preemptive
rights to acquire the Additional Partnership Interest under the Partnership
Agreement.
(e) Legal
opinion of
Seller’s Counsel.
Seller shall
deliver, or shall cause to be delivered, a legal opinion from ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ LLP, counsel to Seller, with respect to Section 3.1
of the Agreement,
in form and substance acceptable to Purchaser in its reasonable discretion.
(f) Third-Party
Consents.
Any and all
consents or waivers required from third parties relating to the performance
by
Seller of its obligations hereunder shall have been obtained.
(g) No
Actions or
Proceedings.
No claim, action,
suit, investigation or proceeding shall be pending or threatened before any
court or governmental agency which presents a substantial risk of the restraint
or prohibition of the transactions contemplated by this Agreement.
(h) Management
Incentive Plan.
Seller shall have
adopted a management equity incentive plan containing terms reasonably
acceptable to Purchaser, substantially in the form of Exhibit
B
attached hereto.
5.2 Conditions
to
Obligations of Seller.
(a) Representations,
Warranties of Purchaser.
The
representations and warranties of Purchaser contained in this Agreement shall
be
true and correct as of the date hereof.
(b) Agreements
and
Covenants.
Purchaser shall
have performed and complied in all material respects with each agreement,
covenant and obligation required by this Agreement to be so performed or
complied with by Purchaser at or before the Closing, including payment of the
Purchase Price as specified in Section 2.2.
(c) Partnership
Agreement.
Seller shall have
received Purchaser’s signature to the Partnership Agreement, the form of which
is attached hereto as Exhibit
A.
(d) Third-Party
Consents.
Any and all
consents or waivers required from third parties relating to the performance
by
Purchaser of its obligations hereunder shall have been obtained.
(e) No
Actions or
Proceedings.
No claim, action,
suit, investigation or proceeding shall be pending or threatened before any
court or governmental agency which presents a substantial risk of the restraint
or prohibition of the transactions contemplated by this Agreement.
(f) Management
Incentive Plan.
Purchaser shall
have approved a management equity incentive plan containing terms reasonably
acceptable to Seller, substantially in the form of Exhibit
B
attached hereto.
ARTICLE VI
POST-CLOSING
COVENANTS
6.1 Post-Closing
Notifications.
Purchaser and
Seller will, and each will cause their respective Affiliates to, comply with
any
post-Closing notification or other requirements, to the extent then applicable
to such party, of any antitrust, trade competition, investment or control,
export or other Law of any Governmental Entity having jurisdiction over
Purchaser or Seller.
6.2 Certain
Tax
Matters.
All sales, use,
transfer, stamp, conveyance, value added or other similar taxes, duties, excises
or governmental charges imposed by any Governmental Entity with taxing
authority, domestic or foreign, and all recording or filing fees, notarial
fees
and other similar costs of Closing with respect to the transfer of the
Additional Partnership Interest or otherwise on account of this Agreement or
the
transactions contemplated hereby will be borne in equal shares by Seller and
Purchaser.
6.3 Further
Assurances.
Subject to the
terms of this Agreement, each of Purchaser and Seller shall execute such
documents and other instruments and take such further actions as may be
reasonably required to carry out the provisions hereof and consummate the
Acquisition.
ARTICLE VII
TERMINATION
7.1 Termination.
(a) This
Agreement may
be terminated and the Acquisition abandoned at any time prior to the
Closing:
(i) by
mutual written
consent of Purchaser and Seller;
(ii) by
Purchaser or
Seller if:
(A) the
Closing does
not occur on or before October 5, 2007; provided
that
the right to
terminate this Agreement under this clause (ii)(A) shall not be available to
any
party whose breach of a representation, warranty, covenant or agreement under
this Agreement has been the cause of or resulted in the failure of the Closing
to occur on or before such date; or
(B) a
Governmental
Entity shall have issued an Order or taken any other action, in any case having
the effect of permanently restraining, enjoining or otherwise prohibiting the
Acquisition, which Order or other action is final and
non-appealable;
(iii) by
Purchaser
if
any
condition to the obligations of Purchaser hereunder becomes incapable of
fulfillment other than as a result of a breach by Purchaser of any covenant
or
agreement contained in this Agreement, and such condition is not waived by
Purchaser; or
(iv) by
Seller if any
condition to the obligations of Seller hereunder becomes incapable of
fulfillment other than as a result of a breach by Seller of any covenant or
agreement contained in this Agreement, and such condition is not waived by
Seller.
(b) The
party desiring
to terminate this Agreement pursuant to Section 7.1(a)(ii),
(iii), or (iv)
shall give written notice of such termination to the other party hereto in
the
manner provided in this Agreement.
7.2 Effect
of
Termination.
In the event of
termination of this Agreement as provided in Section 7.1,
this Agreement
shall immediately become null and void and there shall be no liability or
obligation on the part of any party hereto or their respective officers,
directors, stockholders, members or Affiliates, except as set forth in
Section 7.3;
provided that the
provisions of Section 7.3
and Article VIII
of this Agreement
shall remain in full force and effect and survive any termination of this
Agreement.
7.3 Remedies.
Any party
terminating this Agreement pursuant to Section 7.1
shall have the
right to recover damages sustained by such party as a result of any breach
by
the other party of any representation, warranty, covenant or agreement contained
in this Agreement or fraud or willful misrepresentation; provided, however,
that
the party seeking relief is not in breach of any representation, warranty,
covenant or agreement contained in this Agreement under circumstances which
would have permitted the other party to terminate the Agreement under
Section 7.1.
ARTICLE VIII
INDEMNIFICATION
8.1 Survival.
(a) All
representations
and warranties contained in this Agreement, or in any schedule, certificate
or
other document delivered pursuant to this Agreement, shall terminate upon the
Closing.
(b) The
covenants and
agreements which by their terms do not contemplate performance after the Closing
Date shall survive the Closing for a period of two (2) years. The covenants
and
agreements which by their terms contemplate performance after the Closing Date
shall survive the Closing in accordance with their terms until sixty (60) days
following the expiration of any applicable statute of limitations.
8.2 Indemnification.
(a) Seller
shall
indemnify, defend and hold harmless Purchaser from and against any and all
Losses based upon, arising out of, in connection with, or relating to any
inaccuracy or breach of any representation, warranty, covenant or agreement
of
Seller contained in this Agreement or other documents delivered by Seller
pursuant to this Agreement.
(b) Purchaser
shall
indemnify, defend and hold harmless Seller from and against any and all Losses
based upon, arising out of, in connection with, or relating to any inaccuracy
or
breach of any representation, warranty, covenant or agreement of Purchaser
contained in this Agreement or other documents delivered by Purchaser pursuant
to this Agreement.
8.3 Notice
and
Opportunity to Defend.
(a) Promptly
after
receipt by any party hereto (the “Indemnitee”)
of notice of any
demand, claim or circumstances which gives rise or might give rise to a claim
or
the commencement (or threatened commencement) of any action, proceeding or
investigation (an “Asserted
Liability”)
that may result
in Losses, the Indemnitee shall give notice thereof to the party obligated
to
provide indemnification pursuant to Section 8.2
(the “Indemnifying
Party”).
Such notice
shall describe the Asserted Liability in reasonable detail, and shall indicate
the amount (estimated, if necessary) of the Losses that have been or may be
suffered by the Indemnitee.
(b) The
Indemnifying
Party may elect to compromise or defend, at its own expense and by its own
counsel, any Asserted Liability. If the Indemnifying Party elects to compromise
or defend such Asserted Liability, it shall within thirty (30) days (or sooner,
if the nature of the Asserted Liability so requires) notify the Indemnitee
of
its intent to do so, and the Indemnitee shall cooperate, at the expense of
the
Indemnifying Party, in the compromise of, or defense against, such Asserted
Liability. If the Indemnifying Party elects not to compromise or defend the
Asserted Liability, fails to notify the Indemnitee of its election as herein
provided, or contests its obligation to indemnify under this Agreement, the
Indemnitee may pay, compromise or defend such Asserted Liability.
Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnitee
may settle or compromise any claim over the objection of the other; provided,
however,
that consent to
settlement or compromise shall not be unreasonably withheld, conditioned or
delayed. In any event, the Indemnitee and the Indemnifying Party may participate
at their own expense in the defense of such Asserted Liability. Each party
shall
make available to the other party choosing to defend such Asserted Liability
any
books, records or other documents within its control that are necessary or
appropriate for such defense.
8.4 Contingent
Claims.
Nothing herein
shall be deemed to prevent an Indemnitee from making a claim hereunder for
potential or contingent claims or demands; provided that
any notice of
Asserted Liability sets forth the specific basis for any such contingent claim
to the extent then feasible and the Indemnitee has reasonable grounds to believe
that such a claim may be made.
8.5 Tax
Treatment of
Indemnification Payments.
Except as
otherwise required by applicable Law, the parties shall treat any
indemnification payment made hereunder as an adjustment to Purchase Price.
8.6 Exclusive
Remedy.
The
indemnification rights of the parties under this Article VIII
shall be the sole
and exclusive remedy for any misrepresentation, breach of warranty or failure
to
fulfill any agreement or covenant hereunder on the part of any party
hereto.
ARTICLE IX
MISCELLANEOUS
9.1 Notices.
Any notice,
request, demand, waiver, consent, approval or other communication which is
required or permitted hereunder shall be in writing and shall be deemed given
(a)
on the date the
same has been delivered personally, (b)
on the date
delivered by a private courier as established by the sender by evidence obtained
from the courier, (c)
on the date sent
by facsimile, with confirmation of transmission, if sent during normal business
hours of the recipient, if not, then on the next Business Day, or (d)
on the fifth
(5th)
day after the
date mailed, by certified or registered mail, return receipt requested, postage
prepaid. Such communications, to be valid, must be addressed as
follows:
If
to Purchaser,
to:
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attn:
▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile:
303.832.3013
With
a copy to:
▇▇▇▇▇▇,
▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP
▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
Facsimile:
213.612.2501
If
to Seller,
to:
Savoy
Energy
Limited Partnership
c/o
Savoy
Exploration, Inc.
▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Facsimile:
231.941.9885
With
a copy to:
▇▇▇▇▇▇
&
▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
Facsimile:
616.742.3999
or
to such other address or to the attention of such Person or Persons as the
recipient party has specified by prior written notice to the sending party
(or
in the case of counsel, to such other readily ascertainable business address
as
such counsel may hereafter maintain). If more than one method for sending notice
as set forth above is used, the earliest notice date established as set forth
above shall control.
9.2 Amendments
and
Waivers.
(a) Any
provision of
this Agreement may be amended or waived if, and only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party
to this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No
failure or delay
by any party in exercising any right or privilege hereunder shall operate as
a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power
or
privilege.
(c) To
the maximum
extent permitted by Law, (i) no waiver that may be given by a party shall
be applicable except in the specific instance for which it was given and
(ii) no notice to or demand on one party shall be deemed to be a waiver of
any obligation of such party or the right of the party giving such notice or
demand to take further action without notice or demand.
9.3 Expenses.
Each party shall
bear its own costs and expenses in connection with this Agreement and the
transactions contemplated by this Agreement, including all legal, accounting,
financial advisory, consulting and all other fees and expenses of third parties,
whether or not the Acquisition is consummated.
9.4 Successors
and
Assigns.
This Agreement
may not be assigned by either party hereto without the prior written consent
of
the other party. Subject to the foregoing, all of the terms and provisions
of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
9.5 Governing
Law.
This Agreement
and the Exhibits and Schedules hereto shall be governed by and interpreted
and
enforced in accordance with the Laws of the State of Michigan, without giving
effect to any choice of Law or conflict of Laws rules or provisions (whether
of
the State of Michigan or any other jurisdiction) that would cause the
application of the Laws of any jurisdiction other than the State of Michigan.
9.6 Consent
to
Jurisdiction.
Each party
irrevocably submits to the exclusive jurisdiction of the United States District
Court for the Western District of Michigan in connection with any action, suit
or proceeding arising out of or relating to this Agreement or any breach
thereof, or any transaction contemplated hereby, unless such court would not
have subject matter jurisdiction thereof, in which event the parties consent
to
the exclusive jurisdiction of the courts of the State of Michigan, located
in
Grand Traverse County. Each party further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party’s respective
address set forth above shall be effective service of process for any action,
suit or proceeding. Each party irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising
out
of this Agreement or the Acquisition and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING (WHETHER BASED ON CONTRACT,
TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
9.7 Counterparts.
This Agreement
may be executed in counterparts, and either party hereto may execute any such
counterpart, each of which when executed and delivered shall be deemed to be
an
original and both of which counterparts taken together shall constitute but
one
and the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other party
hereto. The parties agree that the delivery of this Agreement may be effected
by
means of an exchange of facsimile signatures with original copies to follow
by
mail or courier service.
9.8 Third
Party
Beneficiaries.
No provision of
this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder; except that in the case of Article VIII
hereof, the
Indemnitees and their respective heirs, executors, administrators, legal
representatives, successors and assigns, are intended third party beneficiaries
of such sections and shall have the right to enforce such sections in their
own
names.
9.9 Entire
Agreement.
This Agreement
and the documents, instruments and other agreements specifically referred to
herein or delivered pursuant hereto set forth the entire understanding of the
parties hereto with respect to the Acquisition. All schedules, exhibits and
attachments referred to herein are intended to be and hereby are specifically
made a part of this Agreement. Any and all previous agreements and
understandings between or among the parties regarding the subject matter hereof,
whether written or oral, are superseded by this Agreement.
9.10 Captions.
All captions
contained in this Agreement are for convenience of reference only, do not form
a
part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
9.11 Severability.
Any provision of
this Agreement which is invalid or unenforceable in any jurisdiction shall
be
ineffective to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining provisions hereof, and
any
such invalidity or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
9.12 Interpretation.
(a) The
meaning
assigned to each term defined herein shall be equally applicable to both the
singular and the plural forms of such term and vice versa, and words denoting
either gender shall include both genders as the context requires. Where a word
or phrase is defined herein, each of its other grammatical forms shall have
a
corresponding meaning.
(b) The
terms “hereof”,
“herein” and “herewith” and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(c) When
a reference is
made in this Agreement to an Article, Section, paragraph, Exhibit or Schedule,
such reference is to an Article, Section, paragraph, Exhibit or Schedule to
this
Agreement unless otherwise specified.
(d) The
word “include”,
“includes”, and “including” when used in this Agreement shall be deemed to be
followed by the words “without limitation”, unless otherwise
specified.
(e) A
reference to any
party to this Agreement or any other agreement or document shall include such
party’s predecessors, successors and permitted assigns.
(f) Reference
to any
Law means such Law as amended, modified, codified, replaced or reenacted, and
all rules and regulations promulgated thereunder.
(g) The
parties have
participated jointly in the negotiation and drafting of this Agreement. Any
rule
of construction or interpretation otherwise requiring this Agreement to be
construed or interpreted against any party by virtue of the authorship of this
Agreement shall not apply to the construction and interpretation hereof.
1-LA/947404.9
IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the date first above written.
PURCHASER:
By: /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Chief
Executive
Officer and President
SELLER:
SAVOY
ENERGY
LIMITED PARTNERSHIP
By:
Savoy
Exploration,
Inc.
Its: General
Partner
By:
/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title:
Chief
Executive
Officer