EXHIBIT 10.11
PURCHASE AND SALE AGREEMENT
DATED AS OF
DECEMBER 31, 2012
BY AND BETWEEN
THREE FORKS, INC.
AND
THREE FORKS NO. 1 LLC
PURCHASE AND SALE AGREEMENT
This AGREEMENT, dated as of December 31, 2012 (the "Agreement"), by and
between Three Forks, Inc. ("TFI"), a Colorado Corporation and Three Forks No. 1
LLC ("LLC") a Colorado Limited Liability Corporation.
WHEREAS, TFI has entered into a certain Produce to Earn Farmout
Agreement as Farmee a copy of said Agreement is attached hereto as Exhibit A
(the "Farmout Agreement"); and
WHEREAS, TFI has a one hundred percent working interest (100% W.I.) in
the property subject to the Farmout Agreement; and
WHEREAS TFI is the manager of the LLC; and
WHEREAS TFI desires to sell and the LLC desires to purchase a
participation in the Farmout Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
ARTICLE I
THE CONSIDERATION
SECTION 1.01 CONSIDERATION.
In consideration of undertaking the drilling and completion of 9 xxxxx
in Xxxxxx County Texas on the Farmout property, TFI will assign 87 percent of
the working interest in the Farmout to LLC.
SECTION 1.02 EFFECTS OF THE PURCHASE
At the Effective Time and by virtue of the Purchase the LLC shall have
the right and obligation to drill and complete the xxxxx on the property subject
to the Farmout Agreement.
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ARTICLE II
TITLE MATTERS
SECTION 2.01 SELLERS TITLE.
Seller as Farmee under the Farmout has the title to the Farmout
property without warranty of title, however Seller has consulted Xxxxxxxx Xxxx a
land title person in Oklahoma and is satisfied that the Farmor has the authority
to enter into the Farmout Agreement and deliver the rights thereunder.
ARTICLE III
CLOSING
SECTION 3.01 CLOSING
The Closing shall take place immediately upon execution of this
Purchase and Sale Agreement. TFI shall execute an assignment and transfer 87
percent of its working interest in the said Farmout to LLC.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TFI
SECTION 4.01 ORGANIZATION OF TFI; AUTHORITY
TFI is an Entity duly organized, validly existing and in good standing
under the laws of the State of Colorado. TFI has all requisite corporate power
and corporate authority to enter into the Transaction Documents to which it is a
party, to consummate the transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its business. Subject to the
receipt of its board of director's approval, the execution, delivery and
performance by TFI of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby shall have been
duly authorized by all necessary corporate action on the part of TFI, including,
without limitation, the approval of the board of directors of TFI..
SECTION 4.02 NO VIOLATION; CONSENTS AND APPROVALS
The execution and delivery by TFI of the Transaction Documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not, conflict with or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) the terms and conditions
or provisions of the certificate of incorporation or by-laws of TFI (b) any Law
applicable to TFI or the property or assets of TFI, or (c) give rise to any
right of termination, cancellation or acceleration under, or result in the
creation of any lien upon any of the properties of TFI under any contract to
which TFI is a party or by which TFI or any assets of TFI may be bound, except,
in the case of clauses (b) and (c), for such conflicts, violations or defaults
which are set forth in of the TFI Disclosure Schedule and as to which requisite
waivers or consents will have been obtained prior to the Closing or which,
individually or in the aggregate, would not have a material adverse effect on
TFI. No Governmental Approval is required to be obtained or made by or with
respect to TFI in connection with the execution and delivery of this Agreement
or the consummation by TFI of the transactions contemplated hereby.
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SECTION 4.03 LITIGATION; COMPLIANCE WITH LAWS
There are: (i) no claims, actions, suits, investigations or proceedings
pending or, to the knowledge of TFI, threatened against, relating to or
affecting TFI, the business, the assets, or any current employee, officer,
director, stockholder, or independent contractor of TFI in their capacities as
such, and (ii) no orders of any Governmental Entity or arbitrator outstanding
against TFI, the business or the assets of TFI, or that could prevent or enjoin,
or delay in any respect, consummation of the transactions contemplated hereby.
TFI has complied and is in compliance in all material respects with all
laws applicable to TFI, its business or its assets, nor has TFI has received
notice from any Governmental Entity or other Person of any material violation of
law applicable to TFI, its business or assets. TFI has obtained and holds all
required Licenses (all of which are in full force and effect) from all
Government Entities applicable to TFI, its business or its assets. No violations
are or have been recorded in respect of any such license and no proceeding is
pending, or, to the knowledge of TFI, threatened to revoke or limit any such
License.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LLC
SECTION 5.01 ORGANIZATION OF LLC
LLC is a Limited Liability Company duly organized, validly existing and
in good standing under the laws of the State of Colorado and has all requisite
corporate power and corporate authority to enter into the Transaction Documents,
to consummate the transactions contemplated hereby and thereby, to own, lease
and operate its properties and to conduct its business. It is acknowledged that
TFI is the manager and is acting on the behalf of LLC in the transaction.
SECTION 5.02 NO VIOLATION; CONSENTS AND APPROVALS
The execution and delivery by LLC of the Transaction Documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not conflict with, or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, the terms and conditions or
provisions of the Articles of Organization or Operating Agreement of LLC,
SECTION 5.03 LITIGATION; COMPLIANCE WITH LAWS
(a) There are: (i) no claims, actions, suits, investigations or
proceedings pending or, to the knowledge of LLC, threatened against, relating to
or affecting LLC, its business, its assets, or any employee, officer, director,
stockholder, or independent contractor of LLC in LLC capacities as such, and
(ii) no orders of any Governmental Entity or arbitrator are outstanding against
LLC, its business, its assets, or any employee, officer, director, stockholder,
that could prevent or enjoin, or delay in any respect, consummation of the
transactions contemplated hereby.
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(b) LLC has complied and is in compliance in all material respects with
all Laws applicable to LLC, its business or its assets. LLC has not received
notice from any Governmental Entity or other Person of any material violation of
Law applicable to it, its business or its assets.
ARTICLE VI
SECTION 6.01 TAX MATTERS
No representation is made with respect to the taxability of this
transaction.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
None of the representations and warranties of the parties set forth in
this Agreement shall survive the Closing. Following the Closing Date with
respect to any particular representation or warranty, no party hereto shall have
any further liability with respect to such representation and warranty. None of
the covenants, agreements and obligations of the parties hereto shall survive
the Closing.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 NOTICES
All notices, requests and other communications to any party hereunder
shall be in writing and shall be deemed given or made as of the date delivered,
if delivered personally or by e-mail, one day after being delivered by overnight
courier or three days after being mailed by registered or certified mail
(postage prepaid, return receipt requested), to the parties at the following
addresses:
if to TFI to: Three Forks, Inc.
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
if to LLC to: Three Forks No.1 LLC
000 Xxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxxxx, XX 00000
or such other address or e-mail address as such party may hereafter specify for
the purpose by notice to the other party hereto.
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SECTION 7.02 AMENDMENT; WAIVER
This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided that
the same are in writing and signed by or on behalf of the parties hereto.
SECTION 7.03 SUCCESSORS AND ASSIGNS
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and LLC respective successors and assigns,
provided that no party shall assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the written consent of the
other party hereto.
SECTION 7.04 GOVERNING LAW
This Agreement shall be construed in accordance with and governed by
the law of the State of Colorado without regard to principles of conflict of
laws.
SECTION 7.05 WAIVER OF JURY TRIAL
Each party hereto hereby irrevocably and unconditionally waives any
rights to a trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
SECTION 7.06 CONSENT TO JURISDICTION
Each of the Parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of any court of the State of Colorado or any federal
court sitting in Colorado for purposes of any suit, action or other proceeding
arising out of this Agreement and the Transaction Documents (and agrees not to
commence any action, suit or proceedings relating hereto or thereto except in
such courts). Each of the Parties agrees that service of any process, summons,
notice or document pursuant to the laws of the State of Colorado and on the
parties designated in Section 10 shall be effective service of process for any
action, suit or proceeding brought against it in any such court.
SECTION 7.07 COUNTERPARTS; EFFECTIVENESS
Facsimile transmissions of any executed original document and/or
retransmission of any executed facsimile transmission shall be deemed to be the
same as the delivery of an executed original. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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SECTION 7.08 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF OWNERSHIP
Except as expressly provided herein, this Agreement (including the
documents and the instruments referred to herein) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. Except as
expressly provided herein, this Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. The
parties hereby acknowledge that no person shall have the right to acquire or
shall be deemed to have acquired shares of common stock of the other party
pursuant to the Exchange until consummation thereof.
SECTION 7.09 HEADINGS
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
SECITON 7.10 NO STRICT CONSTRUCTION
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
SECTION 7.11 SEVERABILITY
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
IN WITNESS WHEREOF, the parties hereto have caused this Purchase and
Sale Agreement to be duly executed as of the day and year first above written.
THREE FORKS, INC.
A COLORADO CORPORATION
By:
------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO
THREE FORKS NO. 1 LLC
A COLORADO LIMITED LIABILITY COMPANY
By:
------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO of Three Forks Inc. Manager
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EXHIBIT "A"
FARMOUT AGREEMENT
FARMOUT AGREEMENT
(THREE FORKS, INC.)
This FARMOUT AGREEMENT is entered into as of ____________________, 2012
by and between Xxxxx Energy Development Corporation and Three Forks, Inc.
WITNESSETH
WHEREAS Xxxxx Energy Development Corporation, ("Farmor") a Colorado
corporation, whose address is Helena Montana wishes to enter into a FARMOUT
agreement with Three Forks, Inc., a Colorado corporation , ("Farmee"), whose
operating office is located at 000 Xxxxxxxx Xxxx. Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx
for the development of certain lands, and
WHEREAS, Xxxxx Energy Development Corporation, desires to have the
Farmout acreage explored and developed for oil, gas and methane production; and
WHEREAS, Three Forks, Inc. has expressed its willingness to make such
exploration and development on the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained and to be performed by the parties hereto, and the
mutual benefits to be received hereunder, the parties hereto do hereby agree as
follows;
FARMOR hereby grants FARMEE the right to explore for oil and gas and
methane production on the subject tracts and mineral interests listed on the
attached Exhibit "A" under the terms hereof as follows:
1. DEFINITIONS
(A) "Contract Depth" means a depth sufficient to test the through the
Xxxxxxxxxxx formation (5,000 feet or less).
(B) "Effective Date" will mean the execution date of this agreement.
(C) "Farmout Lands" means the Farmor's net interest in and to the minerals
owned by Farmor which are set forth in Exhibit "A" attached hereto and made
a part hereof which may be amended or modified from time to time hereafter
by mutual agreement in writing exclusively. Farmout lands shall be subject
to modification and adjustments based upon GPS survey and future agreements
of the parties.
2. EXHIBITS
The following Schedules and Exhibits are attached hereto and made part of this
Agreement:
(A) Exhibit "A" is a schedule of all individual sections or tracts comprising
approximately _________ gross acres, more or less, on which the minerals
are owned or leased by Farmor.
(B) Exhibit "B" is a map providing an overview and general description of
"Farmout" tracts located in Xxxxxx County, Texas, subject to formal
description and survey by the parties hereafter.
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3. CONSIDERATION AND COMMITMENT
(A) FARMEE agrees that on or before March 31, 2013, it will commence or cause
to be commenced the actual drilling of a minimum of 3 xxxxx for oil and or
gas, hereinafter sometimes referred to as "Initial Xxxxx" at a location of
its choice in any one tract described in Exhibit "A" and that it will
prosecute the drilling of said well with due diligence to a depth
sufficient to test the Xxxxxxxxxxx formation (hereinafter called Contract
Depth"). The well shall be drilled, and completed with reasonable diligence
and dispatch, or if a non-commercial well, shall be properly plugged and
abandoned. All drilling, equipping, plugging and abandonment, and other
operations shall be performed at the sole risk and expense of Farmee.
In the event an unusual event or delay occurs in drilling or permitting
which is pending on March 31, 2013, Farmee, upon showing that permit is
pending or that drilling rig is contracted and scheduled, will receive up
to a 30 day extension in drilling first well, hereunder.
(C) In the event the initial well is commenced, drilled and completed as a
producing well or plugged and abandoned as a dry hole in accordance with
this agreement, Farmee shall have the exclusive right, but not the
obligation, within days from the date of completion rig release from said
Initial Well to commence the drilling of the Second at a location of its
choice in any one tract described in "Exhibit "A". The Second Well shall be
drilled, and completed pursuant to the same terms and provisions as
contained herein for the drilling of the Initial Well. Farmee shall drill
up to 7 additional xxxxx hereunder at a location of its choice so long as
no more than 60 days lapse between the release of the completion rig from
the previous well and the spudding of the next, on the subject farmout
lands.
(D) If because of encountering impenetrable substances, lost circulation, or
because of mechanical conditions making further drilling impractical before
contract depth is reached or if Initial well is completed as a dry hole,
Farmee shall have the right to drill a substitute well at a location of its
choice on the lease acreage, provided the actual drilling of said
substitute well shall be commenced not later than 120 days for the
cessation of the operations of such well. If such substitute well is
commenced, drilled and completed as provided herein, Farmee shall have
complied with this agreement to the same extent as if the well for which it
is a substitute had been commenced, drilled, and completed in accordance
herewith. Farmee shall be allowed to drill as many substitute xxxxx as it
may deem feasible at its own discretion, risk and expense, in an effort to
comply with this agreement.
4. OPERATOR OF XXXXX
Farmor shall be the operator of record until Farmee shall become qualified
to be an operator in the State of Texas but Farmee shall manage the development
xxxxx drilled on behalf of Farmee on the behalf of Farmor.
5. INTEREST EARNED
(A) Farmor represents to Farmee that Farmor owns or leases 100% of the minerals
in the Farmout Lands listed on Exhibit "A", subject to 2% in total
overriding royalties on the leasehold acreage.
(B) In the event any Well hereunder is drilled, and completed as, a commercial
producer of oil and/or gas or methane at any depth and such well is located
upon any portion of the lease acreage on Exhibit "A" Farmor shall assign
and transfer to Farmee, in the section in which the well is located,
subject to the limitation in the last sentence of this paragraph,
one-hundred percent (100%) of its right, title and interest in and to the
oil and gas produced until payout under 5c hereof subject to a Overriding
Royalty interest reserved to Xxxx Xxxxx of 2%, such overriding royalty to
be free and clear of any and all exploration, development, drilling,
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completion, production, processing , water disposal, and gas gathering
costs (the parties recognize that an existing other ORRR's are
outstanding). The Net Revenue Interest earned by Farmee shall not be less
than 80% of 100% in tracts listed on Exhibit "A" such xxxxx shall hold the
mineral interest in the acreage only to the depth completed after 2 years.
During the 2 year period after completion, Farmee may explore any deeper
horizons without limitation and if completed as a producer, such xxxxx
shall hold the acreage to depth completed.
(C) After date Farmee has received net revenues equal to its total costs Farmor
shall "Backin" to a 25% working interest in the farmed land revenues.
(D) This Farmout Agreement is intended to be a "drill to earn" agreement
whereby Farmor intends to convey its interest to Farmee ONLY by virtue of
Farmee drilling and completing 3 xxxxx capable of commercial production of
oil and/or gas by the timely drilling and completing of each well on a
location by location basis. Farmee shall have the exclusive continuous
drill to earn option for all acreage listed on Exhibit "A," subject to
other terms and limitations hereof.
7. RENTALS
Farmor represents from the date of execution of this Agreement there are no
rentals due from Farmee and that Farmee shall not pay rentals on any leasehold
or on any leasehold Farmee earns by production.
8. ADDITIONAL PROVISIONS
(A) Farmor shall not make any proposal for the drilling of a new well on the
farmout lands subject to this agreement during any time the continuous
development period remains in effect without the written consent and
participation of Farmee
(B) Farmor agrees to defend the title to the lands listed on Exhibit "A."
(C) The parties hereto, their successors and assigns, shall have equal and
concurrent rights of ingress and egress on the farmout lands and adjacent
lands for the purpose of laying pipelines, water lines, dig pits, erect
structures, and to do and perform any and all other things incident to the
rights and interest of the parties. These rights shall be exercised in such
a manner as not to interfere unduly with the similar rights of the other
party thereto. Parties recognize and agree that Surface Use Agreements with
Surface Owners will have provisions with which the parties have to comply
and the parties agree to fully cooperate in so doing.
(D) Force Majeure provisions shall apply to all drilling commitments hereunder.
Should Farmee be prevented from complying with any express or implied
covenant of this farmout, from conducting drilling or reworking operations
thereon or from producing oil or gas by operation of a force majeure, which
shall include ONLY natural disasters or wars directly affecting the farmout
lands, any state or federal law or any order, rule or regulation of
governmental authority, then while so prevented, Farmee's obligations
hereunder shall be suspended and Farmee shall not be liable in damages for
failure to comply therewith; and this farmout shall be extended while and
so long as Farmee is prevented by any such cause from conducting drilling
or reworking operations on or from producing oil or gas from the premises,
and the time while Farmee is so prevented shall not be counted against
Farmee, so long as after a force majeure occurrence, upon termination of
such event, the Farmee shall promptly recommence its efforts hereunder.
Farmee's obligation to drill shall be suspended by acts of God, access road
closures to drill sites or production areas, inclement weather prohibiting
equipment from moving or working, or the inability to obtain drilling,
production or pipeline materials due to shortages, but equipment or
drilling or material related suspensions are limited to 90 days from the
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scheduled event. In the event that gas production become "shut-in" due to
lack of pipeline capacity, the parties agree that such "shut-in" condition
shall suspend this Agreement's terms for not longer than 1 (one) year from
date it becomes "shut-in," during which year Farmee shall propose an
acceptable remedy (acceptable in Farmors sole discretion) and implement
such remedy so that market rate (in the area) revenue for gas produced is
commenced or recommenced. In the event of a dispute under this provision,
Farmor shall send a written Notice of Intended Cancellation to Farmee and
Farmee shall have 30 days thereafter to cure and recommence substantial
activities.
(E) Geological information and well data from any Well drilled hereunder shall
be provided to Farmor by Farmee, in confidence, as trade secrets, not to be
published except as required by law or as directed by a governmental
authority having jurisdiction.
(F) Farmee may assign all of the rights and obligations created under this
Agreement, Subject to Farmor's written permission, which permission shall
not be unreasonably withheld.
(G) Farmor and Farmees shall enter into an "Area of Mutual Interest" Agreement
for a radius of one mile around the subject farmout lands on or before the
drilling of the initial well, on terms acceptable to Farmor, concurrent
herewith
(H) Farmor will provide an Abstract and Mineral Title Lawyer's Opinion within
sixty days hereafter on the Farmout Lands or on a tract by tract basis.
Farmee shall pay any costs thereof. If any title defects are noted, Farmor
agrees to take whatever action is appropriate to correct the defects,
promptly, to allow drilling to commence.
(I) Farmee shall comply with all provisions of the Surface Owners Agreements
negotiated by Farmor including payments required thereby to Surface Owners
(J) Farmee shall permit, upon request, Farmor's access to ALL drilling
information, logs, samples, completion records, production records and
product analysis.
(K) Each Party shall permit access to any pipeline owned by other Party or
assigns, likewise, on reasonable industry rates customary in the basin
(L) Each Party shall permit usage of any road improvements by other Parties or
assigns, however, such Party shall share its proportionate share of
maintenance and Surface Owners payment expenses for roads so used in
connection with its own oil and gas operations, whether drilling or
production.
(M) There are no depth restrictions imposed on Farmee subject to this
agreement, except to designated horizon specified herein above
(N) Farmor and Farmee agree as follows; Not withstanding anything to the
contrary contained herein, Farmees rights shall automatically terminate to
all rights below 100' below the stratagraphic equivalent of the deepest
common source of supply penetrated in any well spud 2 years after the
completion date of the well in the section, provided however, if farmee
should commence operations to drill, deepen, or rework a well under the
terms of this farmout agreement within such 2 years, the farmee shall have
the right to drill such well to completion and/or continue deepening and/or
complete reworking operations with reasonable diligence and dispatch, and
if oil or gas be found in paying quantities earn an assignment of such
stratagraphic equivalent.
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(O) Farmee may negotiate additional surface agreements, if necessary, for
drilling, construction of pipelines, compression and production facilities,
however, Farmee shall request Farmor's assistance in negotiating such
agreements, and Farmor shall use its best efforts in assisting Farmee.
(P) Each party agrees to pay all costs incurred or created by it in connection
with its own development and business activities. Farmee shall not be
responsible for debt created by prior or future development, drilling, or
completion activities of Farmor unless agreed to in writing, except that
Farmee shall be responsible for and liable for any payments required under
the Surface Use Agreements with Surface Owners attributable to its drilling
and operational activities.
(Q) When and if both parties (or their assigns) are producing bydrocarbons, the
Parties agree to share compression and treating equipment and facilities on
a percentage of product processed basis for cost sharing.
9. ADDRESS FOR SERVICE
The address for each of the Parties for service of notices shall be as
follows:
FARMOR: FARMEE:
Xxxxx Energy Development Corporation Three Forks, Inc.
Helena, Montana 000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
10. ENTIRE AGREEMENT
This Agreement and the documents and instruments and other agreements among
the parties hereto as contemplated by or referred to herein contain every
obligation and understanding between the parties relating to the subject matter
hereof and merges all prior discussions, negotiations, agreements and
understandings, both written and oral, if any, between them, and none of the
parties shall be bound by any conditions, definitions, understandings,
warranties or representations other than as expressly provided or referred to
herein. All schedules, exhibits and other documents and agreements executed and
delivered pursuant hereto are incorporated herein as if set forth in their
entirety herein.
11. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, heirs, personal representatives,
legal representatives, and permitted assigns.
12. WAIVER AND AMENDMENT
Any representation, warranty, covenant, term or condition of this Agreement
which may legally be waived, may be waived, or the time of performance thereof
extended, at any time by the party hereto entitled to the benefit thereof, and
any term, condition or covenant hereof (including, without limitation, the
period during which any condition is to be satisfied or any obligation
performed) may be amended by the parties thereto at any time. Any such waiver,
extension or amendment shall be evidenced by an instrument in writing executed
on behalf of the party against whom such waiver, extension or amendment is
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sought to be charged. No waiver by any party hereto, whether express or implied,
of its rights under any provision of this Agreement shall constitute a waiver of
such party's rights under such provisions at any other time or a waiver of such
party's rights under any other provision of this Agreement. No failure by any
party thereof to take any action against any breach of this Agreement or default
by another party shall constitute a waiver of the former party's right to
enforce any provision of this Agreement or to take action against such breach or
default or any subsequent breach or default by such other party.
13. NO THIRD PARTY BENEFICIARY
Nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any Person other than the parties hereto and
their respective heirs, personal representatives, legal representatives,
successors and permitted assigns, any rights or remedies under or by reason of
this Agreement, except as otherwise provided herein.
14. SEVERABILITY
In the event that any one or more of the provisions contained in this
Agreement, or the application thereof, shall be declared invalid, void or
unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall remain in full force and effect and the application of such
provision to other Persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such invalid, void or unenforceable provision with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of such invalid, void or unenforceable provision.
15. EXPENSES
Except as otherwise provided herein, each party agrees to pay, without
right of reimbursement from the other party, the costs incurred by it incident
to the performance of its obligations under this Agreement and the consummation
of the transactions contemplated hereby, including, without limitation, costs
incident to the preparation of this Agreement, and the fees and disbursements of
counsel, accountants and consultants employed by such party in connection
herewith.
16. HEADINGS
The section and other headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
any provisions of this Agreement.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument. Facsimile signatures shall be deemed valid and binding.
18. GOVERNING LAW
This Agreement has been entered into and shall be construed and enforced in
accordance with the laws of the State of Colorado, without reference to the
choice of law principles thereof.
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19. JURISDICTION AND VENUE
This Agreement shall be subject to the exclusive jurisdiction of the courts
of Jefferson County Colorado. The parties to this Agreement agree that any
breach of any term or condition of this Agreement shall be deemed to be a breach
occurring in the State of Colorado by virtue of a failure to perform an act
required to be performed under this Agreement and irrevocably and expressly
agree to submit to the jurisdiction of the courts of the State of Colorado for
the purpose of resolving any disputes among the parties relating to this
Agreement or the transactions contemplated hereby. The parties irrevocably
waive, to the fullest extent permitted by law, any objection which they may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement, or any judgment entered by any
court in respect hereof brought in Jefferson County, Colorado, and further
irrevocably waive any claim that any suit, action or proceeding brought in
Jefferson County, Colorado has been brought in an inconvenient forum.
20. PARTICIPATION OF PARTIES
The parties hereby agree that they have had the opportunity to be
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding, or rule
of construction providing that ambiguities in an agreement or other document
will be construed against the party drafting such agreement or document.
21. FURTHER ASSURANCES
The parties hereto shall deliver any and all other instruments or documents
reasonably required to be delivered pursuant to, or necessary or proper in order
to give effect to, all of the terms and provisions of this Agreement including,
without limitation, all necessary assignments, division orders, and such other
instruments of transfer as may be necessary or desirable to effectuate this
Agreement.
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FURTHER, this agreement and its exhibits constitute the entire contract of
the parties and there are no agreements, undertakings, obligations, promises,
assurances or conditions, whether precedent or otherwise, except those
specifically set forth. IN WITNESS WHEREOF, the Parties have executed this
Agreement as of the date first written above.
Xxxxx Energy Development Corporation
By: ____________________________
President
THREE FORKS, INC.
By: _____________________________
President
STATE OF )
COUNTY OF )
On this _____ day of ________________________, 2012, before me, the
undersigned, a Notary Public in and for said State, personally appeared,
President of Xxxxx Energy Development Corporation, known to be the person whose
name is subscribed to this within this instrument, and who upon oath swore that
the statements therein contained are true and correct.
WITNESS my hand and official seal. My Commission expires:
---------------------------------------- -------------------------
Notary Public
STATE OF )
COUNTY OF )
On this _____ day of _________________________, 2012, before me, the
undersigned, a Notary Public in and for said State, personally appeared,
President of Three Forks, Inc., known to be the person whose name is subscribed
to this within this instrument, and who upon oath swore that the statements
therein contained are true and correct.
WITNESS my hand and official seal. My Commission expires:
----------------------------------------- -------------------------
Notary Public
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