PURCHASE AND SALE AGREEMENT
EXHIBIT
10.7
THIS
PURCHASE AND SALE AGREEMENT (“Agreement”) is made and entered into this 16th day
of May 2007, by and between Xxx Xxxxxx, individually (“Xxxxxx”), Xxxxxx Xxxxx,
individually (“Kamon”), Australian-Canadian Oil Royalties Ltd., (“ACOR”),
(Xxxxxx, Xxxxx and XXXX being collectively referred to hereinafter as the
“Seller”) and DuJour Products Inc., a Nevada corporation (“DuJour” or
“Purchaser”).
WHEREAS,
Purchaser desires to purchase and Seller desires to sell all of Seller’s right,
title and interest in and to certain oil and gas working interests and
associated assets and contract rights located in the offshore waters in the
Gippsland Basin of Victoria, Australia, specifically that oil and gas
exploration permit covering 339,769 acres, more or less, located in Victoria,
Australia, and known as VIC/P60;
WHEREAS,
Seller and Purchaser desire to set forth herein the terms and provisions of
their agreements and understandings; and
NOW,
THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE
I
GENERAL
TERMS AND CONDITIONS
1.01 Sale
of Resource Assets.
1.01.01 Subject
to the terms of this Agreement, Seller covenants and agrees to sell to
Purchaser, and Purchaser covenants and agrees to buy from Seller the whole of
Seller’s right, title and interest in the Resource Assets.
1.02 Consideration. The
purchase price for the Resource Assets shall be
Six-Hundred-Thirty-Seven-Thousand-Sixty-Eight US Dollars ($637,068 USD) (the
“Purchase Price”) which has been deposited with the Seller.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
2.01 Representations
and Warranties of Seller. Seller represents and warrants to Purchaser
that the following are and were true and correct as of the date of this
Agreement and will be true at Closing as if made on that date:
2.01.01 Seller:
(A) has
taken all requisite steps to insure his or its ability to legally conduct
business in the places and manner as required to own, operate and sell the
Resource Assets; and
(B) There
are no “Title Defects” or “Environment Defects” as such terms are defined in
Article IV.
2.01.02 This
Agreement has been duly and validly executed and delivered by Seller and
constitutes, along with all other agreements contemplated herein, when entered
into, will constitute the legal, valid and binding agreements and obligations of
Seller enforceable in accordance with their respective terms. Seller
has the right to convey the Resource Assets at Closing free and clear of all
liens and encumbrances and without the need for authorization or signature by
any other party.
2.01.03 The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated by this Agreement do not and will not (A) conflict
with or violate or constitute a default under any agreement to which the Seller
is a party or to which any or all of the Resource Assets is or are bound, or (B)
violate any judgment, decree, order, regulation or rule of any court or
governmental authority applicable to Seller or the Resource Assets, or (C)
affect Seller’s ability to consummate the transactions contemplated under this
Agreement and transfer the Resource Assets to Purchaser.
2.01.04 There
are no tax liens upon, pending against, or, to the knowledge of Seller,
threatened against Seller and/or any of the Resource Assets.
2.01.05 There
are no judicial, administrative or other actions or proceedings pending or, to
the best of Seller’s knowledge, threatened, that challenge the validity of this
Agreement or seek to restrain or prevent any action taken or to be taken by
Seller in connection with this Agreement. Except as disclosed in
writing to Purchaser, there is no litigation or proceeding pending or, to
Seller’s knowledge, threatened, or any order, injunction or decree outstanding
against or relating to Seller and/or the Resource Assets. Seller has
not received any notice from any federal, state or local governmental body or
agency claiming any violation or non-compliance with any law, rule or regulation
with respect to Seller and/or to the Resource Assets.
2.01.06 Seller
has not incurred any obligation or liability, contingent or otherwise, for
brokers’ or finders’ fees in respect of the transactions contemplated herein and
shall indemnify and hold Purchaser harmless from all such fees.
2.01.07
None of the interests constituting a portion of the Resource Assets is subject
to any preferential right to purchase or other similar
right. Seller’s assignment of its interest in the Resource Assets to
Purchaser will not constitute a violation or breach of any
contract.
2.01.08 The
Resource Assets have been operated in compliance with the provisions and
requirements of all laws, orders, regulations, rules and ordinances issued or
promulgated by all governmental authorities having jurisdiction with respect to
the Resource Assets. All governmental authorizations with regard to
the ownership, development or operation of the Resource Assets have been
obtained, and no material violations exist in respect of such
authorizations.
2.01.09 The
rights and obligations of the Seller hereunder are in full force and effect, and
the Seller is not, and to the best of Seller’s knowledge there exists no breach
of or default, or event that with the lapse of time or the giving of notice, or
both, would cause Seller to be in breach or default, with respect to any of his
obligations hereunder.
2.01.10 all
rentals, and other payments due under or with respect to the Permit have been
properly and timely paid.
2.01.11 Other
than the Permit work program requirements, there are no outstanding authorities
for expenditures (“AFE”) to drill, rework or plug and abandon xxxxx or otherwise
related to the Resource Assets or for other operations or capital expenditures
for which Purchaser will be liable after Closing.
2.01.12 The
Resource Assets have not suffered any material destruction or damage of the type
normally covered by insurance of the type maintained in the normal course of the
oil and gas industry.
2.01.13 There
are no xxxxx, pits, storage facilities, pipelines or other assets located in the
Permit area which are: (i) required, by law or contract, to be
Restored (as hereinafter defined) as at the Closing Date or (ii) have been
Restored but have not been Restored in all material respects in compliance with
all applicable requirements of each regulatory authority having jurisdiction
over the Permit; provided that the representations in both (i) and (ii) above,
are applicable only to those xxxxx, pits, storage facilities, pipelines or other
assets for which the Seller has the legal responsibility for conducting such
Restoration. For the purposes of this Section, the term “Restore”, or
any variation thereof, refers to the proper plugging and abandoning,
remediation, restoration, removal or similar operation or activity undertaken,
or to be undertaken, with respect to any xxxxx, pits, storage facilities,
pipelines or other assets located in the Permit area.
2.01.14 There
are no insurance policies which relate to the Resource Assets.
2.01.15 None
of the Resource Assets are subject to (or has related to them) any tax
partnership.
2.02 LIMITATIONS
ON WARRANTIES AND OTHER DISCLAIMERS. THERE ARE NO WARRANTIES THAT
EXTEND BEYOND THE FACE OF THIS AGREEMENT.
2.03 Representations
and Warranties of Purchaser. Purchaser represents and warrants to
Seller that the following are and were true and correct as of the date of this
Agreement and will be true at Closing as if made on that date:
2.03.01 Purchaser
is corporation which:
(A) is
duly organized, validly existing and in good standing under the laws of the
state of its incorporation or organization;
(B) has
taken all requisite steps to insure its ability to legally conduct business in
the places and manner as required to acquire, own and operate the Resource
Assets;
(C) has
full power and authority to carry on its business as now being conducted and/or
will become duly licensed or qualified to do business in the state in which the
Resource Assets are located; and
(D) is
duly authorized by appropriate action of the board of directors, shareholders,
partners, venturers, members or others, as the case may be, to enter into this
Agreement and to perform the obligations hereunder.
2.03.02 This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes, and all other agreements contemplated herein, when entered into,
will constitute the valid and binding agreements and obligations of Purchaser
enforceable in accordance with their respective terms, and no additional
consents to the transaction are necessary.
2.03.03 The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated by this Agreement do not and will not (A) conflict
with or violate or constitute a default under any agreement governing
Purchaser’s organization or management or (B) violate any law, rules or
regulation of any governmental authority to which Purchaser is
subject.
2.03.04 Purchaser
has not incurred any obligation or liability, contingent or otherwise, for
brokers’ or finders’ fees in respect of the transactions contemplated herein and
shall indemnify and hold Seller harmless therefrom.
2.03.05 To
Purchaser’s knowledge, there is no suit, action, claim, investigation, or
inquiry by any person or entity or by any administrative agency or governmental
body (including, without limitation, expropriation or forfeiture proceedings),
and no legal, administrative, or arbitration proceedings pending, or to
Purchaser’s knowledge, threatened against Purchaser, or to which Purchaser is a
party.
2.03.06 Purchaser
has sufficient cash or other sources of immediately available funds to enable it
to make the payment to Seller contemplated by this Agreement. As at the date of
this Agreement, Purchaser is using its best efforts to secure the funding to
enable it to comply with its expenditure obligations as stated in
Article 1.02.
2.03.07 Purchaser
is an experienced and knowledgeable in oil and gas properties and has the
financial and business expertise to evaluate the merits and risks of the
transactions contemplated by this Agreement. In entering into this
Agreement, Purchaser has relied solely on the express representations and
covenants of Seller in this Agreement, its independent investigation of, and
judgment with respect to, the Resource Assets and the advice of its own legal,
tax, economic, environmental, engineering, geological and geophysical advisors
and not on any comments or statements of any representatives of, or consultants
or advisors engaged by Seller.
ARTICLE
III
COVENANTS
3.01 Access. Prior
to Closing, Seller will give, or, in the case of properties for which Seller is
not the Operator, use their best efforts to cause Purchaser and its attorneys
and other representatives to be given, access to the Resource Assets and, at
Seller’s office, to any records, documents or information of Seller pertaining
to the ownership and/or operation of the Resource Assets. Such access
shall be at reasonable times on prior notice. Purchaser shall be
entitled to copy, at its expense, such records, documents or other information,
as it deems prudent. Seller shall not be obligated to provide
Purchaser with access to any records or data which Seller cannot legally provide
to Purchaser without breaching, or risking a breach of, confidentiality or other
agreements with other parties. Purchaser shall use its best efforts,
in good faith, to provide notice to Seller prior to making contact with any
third party to obtain any information concerning the Resource Assets
.. Seller shall have the right to have a representative present at or
participate in any and all such contacts. Purchaser recognizes and
agrees that all materials made available to it (whether pursuant to this Section
or otherwise) in connection with the transaction contemplated hereby are made
available to it as an accommodation, and without representation or warranty of
any kind as to the accuracy and completeness of such materials except as
specifically provided in Section 2.01 of this Agreement. PURCHASER
HEREBY AGREES TO DEFEND, INDEMNIFY, RELEASE, PROTECT, SAVE AND HOLD HARMLESS
SELLER FROM AND AGAINST ANY AND ALL LOSSES ARISING OUT OF OR RELATING TO ANY
CLAIMS RELATING TO ANY PLANT OR FIELD VISIT, OR OTHER DUE DILIGENCE ACTIVITY,
CONDUCTED BY PURCHASER OR ANY OF ITS AGENTS, REPRESENTATIVES, AFFILIATES,
SUCCESSORS, ASSIGNS, OFFICERS, REPRESENTATIVES OR DIRECTORS EXCEPT ANY SUCH
LOSSES RESULTING, IN WHOLE OR IN PART, FROM THE CONCURRENT OR JOINT
NEGLIGENCE LIABILITY OR ANY LIABILITY FOR WHICH SELLER IS STRICTLY
LIABLE.
3.02 Interim
Operations. Seller covenants that from the date hereof to the Closing
Date, except (A) as provided herein, (B) as required by any existing contract or
(C) otherwise consented to in writing by Purchaser, Seller shall:
3.02.01 Not
(A) in any manner deal with, incur obligations with respect to, or undertake any
transactions relating to the Resource Assets other than transactions (i) to
which the Purchaser has given its prior written consent, which consent shall not
be withheld unreasonably, (ii) in the ordinary and regular course of business of
owning the
Resource
Assets, and (iii) subject to the terms and conditions of this
Agreement; (B) dispose of, encumber or relinquish the
Permit or any part of the area thereof; (C) waive, compromise or settle any
right or claim that would have a material adverse effect on the ownership,
operation or value of any of the Resource Assets ; or (D) commit to any
operation, service or related activity with respect to the Resource Assets ,
which would or could reasonably be expected to require expenditures (capital,
maintenance, expense or otherwise) in excess of $25,000 in the
aggregate (except emergency operations whereupon Seller shall give notice of
such expenditure to Purchaser at the earliest possible time, including a
statement of the amount of such expenditure and the facts which bring the
expenditure within such exception), or terminate, materially amend or extend any
agreement materially affecting the Resource Assets without the prior
consent of Purchaser, which consent shall not be unreasonably
withheld.
3.02.02 Promptly
notify Purchaser of any suit, lessor demand action, or other proceeding before
any court, arbitrator, or governmental agency and any cause of action which
relates to Seller and/or the Resource Assets or which might result in impairment
or loss of any portion of the Resource Assets or which might hinder or impede
the operation of the Permit.
3.02.03 Make
or give all notifications, filings, consents or approvals from, to or with all
governmental authorities, and will cooperate with Purchaser in obtaining the
issuance, assignment or transfer, as the case may be, by each such authority of
such permits as may be necessary for Purchaser to own and operate the Resource
Assets following the consummation of the transactions contemplated in this
Agreement; provided that Seller shall not be required to incur any expense in
connection therewith.
3.03 Notice
of Breach of Representations or Warranties. Purchaser and Seller will
immediately notify the other upon the discovery that any representation or
warranty of either party is, becomes or will be untrue on the Closing
Date.
ARTICLE
IV
TITLE
DEFECTS, ENVIRONMENTAL DEFECTS,
CONSENT
DEFECTS AND CASUALTY LOSS
4.01.01 For
purposes hereof, “Defensible Title” means with respect to the Subject Properties
such title as (A) will enable Purchaser, as Seller’s successor in title, to
receive payment for production from or attributable to a particular Lease in an
amount not less than the “Net Revenue Interest” for the Permit as set forth on
the Exhibit D (“Division of Interest”), without reduction, suspension or
termination throughout the productive life of xxxxx located on the Permit,
(except for any reduction, suspension or termination (i) caused by Purchaser or
(ii) that arises as a result of Permitted Encumbrances); (B) will
obligate Purchaser, as Seller’s successor in title, to bear no “Working
Interest” cost throughout the productive life of such well; and (C) is free and
clear of all liens, encumbrances or security interests except for Permitted
Encumbrances. “Defensible Title” with respect to the minerals which
are not presently subject to lease, that the percentage of the minerals being
transferred under the subject tract is not less
than that
percentage of the subject minerals in and under the subject tract described
(“Tract”).
4.01.02 For
purposes hereof a “Title Defect” shall be any lien, encumbrance, security
interest, claim or burden, other than Permitted Encumbrances, which causes
Purchaser to receive less than Defensible Title in the Subject
Properties. Purchaser shall be entitled to a reduction in the Base
Purchase Price due to the existence of uncured Title Defects according to the
provisions of this Article VII. Such defects in the early chain of
title such as failure to recite marital status in document, omission of
succession or heir ship proceedings, lack of survey, defects that have been
cured by possession and failure to record releases of liens, production
payments, leases or mortgages that have expired by their terms, to the extent
such matters are not reasonable expected to result in claims that will adversely
affect Purchaser’s title to the Subject Properties, shall not constitute “Title
Defects” hereunder.
4.01.03 For
purposes hereof, an “Environmental Defect” means any event or condition with
respect to air, land, soil, surface, subsurface strata, surface water, ground
water, or sediment which causes all or any portion of the Permit area to become
subject to remediation under, or not be in compliance with, any or all
applicable federal, state, and local laws, including, without limitation,
statutes, regulations, orders, ordinances, and common law, relating to the
protection of the public health, welfare and the environment, including, without
limitation, those relating to the storage, handling, and use of chemicals and
other hazardous materials, those relating to the generation, processing,
treatment, storage, transportation, disposal, or other management of waste
materials of any kind, and those relating to the protection of environmentally
sensitive areas.
4.01.04 For
purposes hereof a “Consent Defect” means the failure of Seller to obtain, prior
to Closing, any required consent to assign or waiver of any preferential right
to purchase.
4.02 Notice
of Title Defects. Purchaser shall, as soon as possible, but in no
event later than five (5) days prior to Closing (the “Title Notice Date”), give
written notice to Seller specifying all Title Defects for which Purchaser
requests a reduction in the Purchase Price, and shall state the “Title Defect
Amount.” For purposes hereof “Title Defect Amount” shall mean the
portion of the Base Purchase Price allocated to the interest affected by such
Title Defect , that is, the amount by which the Purchase Price so allocated to
the Permit subject to a Title Defect must be proportionately reduced to give
appropriate remedy to Purchaser on account of the Title Defect, but which may
never exceed the value of the Permit. Failure by Purchaser to timely
assert a Title Defect shall be deemed an election by Purchaser to waive such
Defect and to accept and pay for the Subject Properties notwithstanding the
effect of the uncured Defect.
4.03 Notice
of Environmental Defects. Purchaser shall, as soon as possible, but
in no event later than thirty (30) days from the date of the execution hereof
(the “Environmental Notice Date”), give written notice to Seller specifying all
Environmental Defects and shall state the “Environmental Defect
Amount.” For purposes hereof “Environmental Defect Amount” shall mean
an estimate of the costs to cure such Environmental Defect, but which may
never
exceed
the value of the Permit. Failure by Purchaser to timely assert a
known Environmental Defect shall be deemed an election by Purchaser to waive
such Defect and to accept and pay for the Subject Properties notwithstanding the
effect of the uncured Environmental Defect.
4.04 Notice
of Consent Defects. Failure of Seller to obtain any consent shall
constitute a Consent Defect without the necessity of any action by
Purchaser. For purposes hereof the “Consent Defect Amount” for any
Consent Defect shall mean the portion of the Purchase Price allocated to the
interest affected by such Consent Defect, that is, the amount by which the
Purchase Price so allocated to the Permit or other asset subject to a Consent
Defect must be proportionately reduced to give appropriate remedy to Purchaser
on account of the Consent Defect, but which may never exceed the value of the
Permit or other asset. In the event Purchaser discovers the existence
of any requirement for consent not disclosed or any preferential right to
purchase, then Purchaser shall provide written notice thereof to Seller
immediately on such discovery.
4.05 The
Seller will be required to cure, to Purchaser’s satisfaction, any Title or
Environmental Defect for which notice has been given to Seller:
4.06 Casualty
Loss. Notwithstanding anything that may be contained hereto the
contrary, if, prior to the Closing, a Casualty Loss occurs, Purchaser may elect
(i) to terminate this Agreement, (ii) to delete the property that is subject to
the Casualty Loss from the Resource Assets, and the Purchase Price shall be
reduced by the value allocated to the deleted interest or (iii) to proceed with
the sale of the Resource Assets without reduction of the Purchase Price,
notwithstanding any such destruction or taking, in which case at Closing, Seller
shall pay to Purchaser and/or assign to purchaser the right to receive all sums
paid or payable to Seller by third parties by reason of the destruction or
taking of that portion of the Resource Assets that is subject to Casualty Loss
and shall assign, transfer and set over unto Purchaser all of the right, title
and interest of Seller in and to any claims, causes of action, unpaid proceeds
or other payments from, or payable from, third parties arising out of such
destruction or taking. Seller shall not voluntarily compromise,
settle or adjust any amounts payable by reason of any Casualty Loss without
first obtaining the written consent of Purchaser. For the purposes
thereof the term “Casualty Loss” means the destruction of all or any portion of
the Resource Assets by fire, “blow out”, “Environmental Defect” or other
casualty or taking thereof by condemnation or under the right of eminent
domain.
ARTICLE
V
CONDITIONS
TO CLOSING
5.01 Conditions
to Obligations of Seller. The obligations of Seller under this
Agreement are subject to the satisfaction at or prior to Closing, of the
following conditions:
5.01.01 All
representations and warranties of Purchaser contained in this Agreement shall be
true in all material respects at and as of Closing as if such representations
and warranties were made at and as of Closing.
5.01.02 Purchaser
will have performed and complied with, or caused the performance of and
compliance with, in all material respects, all the obligations, terms,
conditions, and agreements required by this Agreement to be performed or
complied with by it on or prior to Closing.
5.01.03 As
of the Closing, no suit, action or other proceeding shall be pending or
threatened before any court or governmental agency seeking to restrain Seller or
Purchaser or prohibit the Closing or seeking damages against Seller or Purchaser
as a result of the consummation of this Agreement.
5.02 Conditions
to Obligations of Purchaser. The obligations of Purchaser under this
Agreement are subject to the satisfaction, at or prior to Closing, of the
following conditions:
5.02.01 All
representations and warranties of Seller contained in this Agreement shall be
true in all material respects at and as of Closing as if such representations
and warranties were made at and as of Closing.
5.02.02 Seller
will have performed and complied with, or caused the performance and compliance
with, in all material respects, all the obligations, terms, conditions, and
agreements required by this Agreement to be performed or complied with by Seller
on or prior to Closing, and Seller shall have delivered to Purchaser at Closing
all of the other documents and instruments to be delivered by Seller pursuant
hereto.
5.02.03 As
of the Closing, no suit, action or other proceeding shall be pending or
threatened before any court or governmental agency seeking to restrain Purchaser
or prohibit the Closing or seeking damages against Purchaser as a result of the
consummation of this Agreement.
5.02.04 Xxxxxxxx
will have waived its pre-emptive rights in a form that is approved by Purchaser
with respect to the purchase by Purchaser of the Resource Assets.
5.02.05 All
consents, approvals and registrations required from any government agency or
third party to transfer the Resource Assets to the Purchaser have been
obtained.
5.02.06 Seller
will have cured, to Purchaser’s satisfaction, all Title, Environmental and/or
Consent Defects.
5.02.07 In
the event of any Casualty Loss, Purchaser will have waived its right to
terminate this Agreement and will have reached an agreement with the Seller as
to any reduction in the Purchase Price.
ARTICLE
VI
CLOSING;
DELIVERIES AT CLOSING
The
closing of this Agreement, shall occur at a place and time mutually acceptable
to Seller and Purchaser two (2) Business Days after the satisfaction of the
condition referred to in Article IV.
6.01 Turn
Over Possession. Seller shall turn over possession of the
Resource Assets to Purchaser or Purchaser’s designee. In particular, Seller
shall deliver the originals and copies of the Information to
Purchaser.
6.02 A
certified copy of the resolutions of Purchaser’s Board of Directors authorizing
the consummation of the transactions contemplated in this Agreement by
Purchaser.
6.03 Deed
of Assumption. Purchaser shall execute a deed of assumption in the form set out
in Schedule 5 of the JOA under which Purchaser assumes all of the obligations of
Seller under the JOA.
ARTICLE
VII
ASSUMPTION
OF LIABILITIES AND INDEMNIFICATION
7.01 Assumption
of Obligations by Purchaser. At Closing, Purchaser shall assume all
obligations and liabilities attributable to, relating to, or arising in
connection in any way with the Resource Assets for all periods on and after
Closing. Seller shall remain liable for all obligations and
liabilities attributable to, relating to or arising in connection in any way
with the Resource Assets, for all periods prior to Closing.
7.02 Indemnification
by Purchaser. Purchaser shall assume all liability for and indemnify
Seller against all losses, costs, expenses, claims and causes of action
(“Claims”), (i) arising from Purchaser’s breach of any of its representations or
warranties under this Agreement. (ii) arising from any breach or violation of
any law, rule or regulation relating to the protection of the environment or the
ownership, handling or disposal of hazardous materials by
Purchaser.
7.03 Indemnification
by Seller. Notwithstanding the foregoing, but subject to the
provisions of Article VIII, Seller shall indemnify and hold harmless Purchaser
from and against all Claims (i) arising from Seller’s breach of any of its
representations or warranties; (iii) arising from any breach or violation of any
law, rule or regulation relating to the protection of the environment or the
ownership, handling or disposal of hazardous materials prior to Closing; or (iv)
otherwise arising in connection with or relating to the Resource
Assets for the period of Seller’s ownership prior to
Closing.
7.04 Indemnification
Procedures.
7.04.01 Within
three (3) business days after either party to this Agreement becomes aware of
facts giving rise to a Claim by it for indemnification pursuant to this Article
VII, and prior to the expenditure or approval of the expenditure of any funds,
the
party
aware of such claim shall provide notice thereof in writing to the other party,
(a “Claim Notice”) specifying the nature and specific basis for such Claim and a
copy of all papers served with respect to such Claim (if any). For
purpose of this Section, receipt by a party to this agreement of any notice of
any demand, assertion, claim, action or proceeding (judicial, administrative or
otherwise) by or from any person or entity other than a party to this Agreement
or any affiliate thereof which gives rise to a Claim on behalf of such party
shall constitute the discovery of facts giving rise to a Claim by it and shall
require prompt notice of the receipt of such matter as provided in the first
sentence of this Section. Each Claim Notice shall set forth a
reasonable description of the Claim as the party making such claim shall then
have and shall contain a statement to the effect that said party is making a
Claim pursuant to and formal demand for indemnification under, this Article
VII. The Claim Notice must set forth the particular provision in this
Article VII and any related provision in this Agreement pursuant to which such
indemnification Claim is made.
7.04.02 The
indemnifications provided by this Agreement are expressly subject to the
following:
(A) In
case any legal proceeding or claim, including any investigatory proceeding, is
brought or made against either party to this agreement (“Indemnified Party”) in
a manner for which indemnification may be provided under Section 7.02, such
Indemnified Party shall promptly notify the other party (“Indemnifying Party”)
by the delivery of the Claim Notice. The Indemnifying Party shall
have the right to control and assume the defense of any such legal proceeding or
claim, including the employment of counsel satisfactory to the Indemnifying
Party. If the Indemnifying Party controls and assumes the defense of
any proceeding or claim, the Indemnified Party shall have the right to employ
separate counsel, but the fees and expenses of such counsel shall be at the
expense of Indemnified Party unless the representation of both parties by the
same counsel would be inappropriate due to any actual or potential conflicts of
interest. The Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys at any one time for the
Indemnified Party in connection with any one legal proceeding or claim or
substantially similar related proceedings and claims.
(B) Notwithstanding
anything of the contrary in Section A above, the Indemnified Party shall be
entitled to reasonable compensation of costs of defense, including reasonable
attorneys fees, in the event that (i) the employment of separate counsel has
been authorized by the Indemnifying Party or (ii) the Indemnifying Party has
failed to defend diligently any Claims. The Indemnifying Party shall
not, in the defense of any such Claims, except with the prior written consent of
the Indemnified Party, consent to the entry of any judgment or enter into any
settlement which does not include as an unconditional term, the release by the
claimant or the plaintiff of the Indemnified Party from all further liability in
respect to any such Claims.
(C) If
the Claim is of a sort which requires action on the part of the owners of the
Resource Assets, such as restoration of surface locations, for example, the
party having knowledge or receiving notice of such Claim shall provide the
Indemnifying Party
with the
appropriate Claim Notice. The Indemnifying Party shall have the
option to respond in such manner as it deems prudent to such Claim and shall
make all decisions and take all action in response to the Claim. Only
if the Indemnifying Party fails to respond in a reasonable and prudent manner to
such Claim may the Indemnified party take such actions as are necessary to
respond to the Claim.
7.04.03 The
indemnification obligations under this Article VII (or otherwise under this
Agreement) shall not apply to any settlements effected without the consent of
the Indemnifying Party. The indemnification obligations under this
Article VII (or otherwise under this Agreement) shall not be deemed to create
any rights of subrogation or other rights in any insurer or third
party.
ARTICLE
VIII
LIMITATIONS
OF LIABILITY
8.01 Exclusive
Remedy. If the Closing occurs, the sole and exclusive remedy of the
Purchaser and the Seller with respect to the purchase and sale of the Resource
Assets shall be pursuant to the express provisions of this Agreement and the
other documents executed and delivered pursuant to the provisions
hereof. Purchaser and Seller shall be deemed to have waived, to the
fullest extent permitted under applicable law, any rights of contribution and
any and all rights, claims and causes of action which may exist against Seller
or Purchaser, respectively, arising under or based on any federal, state or
local statute, law, ordinance, rule or regulation.
8.02 Waiver
of Right to Rescind. The parties acknowledge that if this Agreement
is not terminated and the transaction contemplated hereby is closed, the payment
of money, as limited by the terms of this Agreement, shall be adequate
compensation for breach of any representation, warranty, covenant or agreement
contained herein or for any other claim arising in connection with or with
respect to the transactions contemplated in this Agreement.
8.03 Time
Limitation. Notwithstanding any provision hereof to the contrary, it
is understood and agreed that any and all liabilities of Seller under this
Agreement, if any, except for liabilities arising from a breach by any Seller of
the representations contained in Section 2.01.01, shall expire and terminate and
no longer be enforceable for all periods on and after twelve (12) months from
the Closing. On and after twelve (12) months from the Closing,
Purchaser shall not be entitled to make any claim against Seller for any cause
attributable to any time period under this Agreement or otherwise, including,
without limitation, rights of contribution arising under or based on any
federal, state or local statute, law, ordinance, rule or regulation or common
law or otherwise. In the event any law, rule or regulation requires a
longer time period before Seller will be exempted from all liability under this
provision, this provision shall be deemed amended, to the extent and only to the
extent required by law and only as to that portion of the Resource Assets as so
required, to extend the limitation period as so required.
ARTICLE
IX
TERMINATION
9.01 Termination
of Agreement. This Agreement and the transactions contemplated hereby
may be terminated upon written notice from the party electing to terminate this
Agreement, in the following instances:
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(A)
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By
Seller if the conditions set forth in Section 5.01.01 or 5.01.02 are not
satisfied in all materials respects or waived as of the
Closing.
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(B)
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By
Seller if the conditions described in Section 5.01.03
apply.
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(C)
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By
Purchaser if the conditions set forth in Section 5.02.01 or 5.02.02 are
not satisfied in all material respects or waived as of
Closing.
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(D)
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By
Purchaser if the conditions in Section 5.02.03 apply or if the conditions
specified in Sections 5.02.04 through 5.02.07 are not satisfied in all
material respects or waived as of the
Closing.
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(E)
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At
any time by the mutual written agreement of Purchaser and
Seller.
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9.02 Liabilities
Upon Termination.
9.02.01 If
this Agreement is terminated pursuant to Section 9.01(A), or if all conditions
specified by Section 5.02 have been satisfied and Purchaser fails to close, then
Seller may retain the Purchase Price and the Purchaser will have no further
liability to the Seller. The parties hereby acknowledge that the
extent of damages to Seller occasioned by the failure of this transaction to be
consummated would be impossible or extremely difficult to ascertain and that the
Purchase Price is a fair and reasonable estimate of such damages under the
circumstances and does not constitute a penalty.
9.02.02 If
this Agreement is terminated pursuant to Section 9.01(C), or if all conditions
specified by Section 5.01 have been satisfied and Seller fails to close, then
the Purchaser, in addition to any other legal remedies available, may elect to
enforce the specific performance of this Agreement or recover the Purchase Price
from the Sellers. Nothing contained herein shall be construed to
limit Purchaser’s legal or equitable remedies including, without limitation,
damages for the breach or failure of any representation, warranty, covenant or
agreement made by Seller.
9.03 If
this Agreement is terminated for any reason other than that specified in Section
9.01(A) or Section 9.01(C), and Section 9.02 does not apply, the Purchase Price
will be returned in the Purchaser in full and neither party will have any
further liability to the other party.
ARTICLE
X
ARBITRATION
10.01 Binding
Arbitration. On the request of any party hereto, whether made before
or after the institution of any legal proceeding, any action, dispute, claim or
controversy of any kind now existing or hereafter arising between any of the
parties hereto in any way arising out of, pertaining to or in connection with
this Agreement (a “Dispute”) shall be resolved by binding arbitration in
accordance with the terms hereof. Any party may, by summary
proceedings, bring an action in court to compel arbitration of any
Dispute.
10.02 Governing
Rules. Any arbitration shall be administered by the American
Arbitration Association (the “AAA”) in accordance with the terms of this
Section, the Commercial Arbitration Rules of the AAA, and, to the maximum extent
applicable, the Federal Arbitration Act. Judgment on any award
rendered by an arbitrator may be entered in any court having
jurisdiction.
10.03 Arbitrators. Any
arbitration shall be conducted before one arbitrator. The arbitrator
shall be a practicing attorney licensed to practice in the State of Texas who is
knowledgeable in the subject matter of the Dispute selected by agreement between
the parties hereto. If the parties cannot agree on an arbitrator
within thirty (30) days after the request for arbitration, then any party may
request the AAA to select an arbitrator. The arbitrator may engage
engineers, accountants or other consultants that the arbitrator deems necessary
to render a conclusion in the arbitration proceeding.
10.04 Conduct
of Arbitration. To the maximum extent practicable, an arbitration
proceeding hereunder shall be concluded within one hundred eighty (180) days of
the filing of the Dispute with the AAA. Arbitration proceedings shall
be conducted in Dallas, Texas. Arbitrators shall be empowered to
impose sanctions and to take such other actions as the arbitrators deem
necessary to the same extent a judge could impose sanctions or take such other
actions pursuant to the Federal Rules of Civil Procedure and applicable
law. At the conclusion of any arbitration proceeding, the arbitrator
shall make specific written findings of fact and conclusions of
law. The arbitrator shall have the power to award recovery of all
costs and fees to the prevailing party. Each party agrees to keep all
Disputes and arbitration proceedings strictly confidential except for disclosure
of information required by applicable law.
10.05 Costs
of Arbitration. All fees of the arbitrator and any engineer,
accountant or other consultant engaged by the arbitrator, shall be paid by the
party who loses the arbitration unless otherwise awarded by the
arbitrator. It is further provided, that in the event either party to
a dispute offers to settle that dispute and such offer is not accepted by the
other party, in such event, should the resolution of the dispute result in a
settlement which is not greater or more favorable to the non-settling party than
that offered, the non-settling party, all costs from the point of such offer
shall be paid by the non-settling party.
ARTICLE
XI
MISCELLANEOUS
11.01 Survival
of Representation, Warranties and Covenants. The obligations and
liabilities of the Parties under each of their representations, warranties and
covenants contained in this Agreement shall survive the Closing and the
execution and delivery of the documents to be delivered at Closing and remain in
full force and effect.
11.02 Sales
Taxes. No sales, transfer or similar tax will be collected at Closing
from Purchaser in connection with this transaction. If, however, this
transaction is later deemed to be subject to sales, transfer or similar tax, for
any reason, Purchaser agrees to be solely responsible, and shall indemnify and
hold Seller (and their affiliates, and the respective directors, officers,
employees, attorneys, contractors and agents of Seller and such affiliates)
harmless, for any and all sales, transfer or other similar taxes (including
related penalty, interest or legal costs) due by virtue of this transaction on
the Resource Assets transferred pursuant hereto and the Purchaser shall remit
such taxes at that time. Seller agrees that they will cooperate with
Purchaser, and Purchaser agrees to cooperate with Seller, in demonstrating that
the requirements for exemptions from such taxes have been met.
11.03 Notices. All
communication or notices required or permitted to be given under this Agreement
shall be in writing, and any communication or notice shall be deemed to have
been duly made if actually delivered, including delivery by facsimile
transmission, receipt of which has been duly acknowledged, or if mailed by
registered or certified mail, postage prepaid, and addressed to:
(A) Purchaser: DuJour Products,
Inc.
000
Xxxxxx Xxxxx
Xxxxxxxxx,
XX
Xxxxxx,
X0X 0X0
Xxxxxxx,
XX 00000
Attention: Xxxxx
Xxxxxxxx
Telephone:
000-000-0000
(B) Seller: Xxx Xxxxxx
00
Xxxxxxx Xxxxx
Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxx
Xxxxxx
Telephone:
000-000-0000
Xxxxxx Xxxxx
0000 Xxxxxx
X
Xxxxx, Xxxxx 00000
Attention: Xxxxxx
Xxxxx
Telephone:
000-000-0000
Facsimile: 000-000-0000
Australian-Canadian Royalties Ltd.
X.X. Xxx 0000
Xxxxx, Xxxxx 00000
Attention: Xxxxxx
Xxxxx
Telephone:
000-000-0000
Facsimile: 000-000-0000
A party
may, by written notice so delivered to the other party, change the address to
which communications or written notices shall be made under this
Agreement.
11.08 Further
Assurances. Seller and Purchaser agree that they will, upon request,
deliver, or will cause to be executed, acknowledged and delivered, all documents
as may be reasonably required for the assigning, transferring, granting,
conveying and confirming to Purchaser, or reducing to possession by Purchaser,
of the Resource Assets and will perform and take such further actions as may be
necessary or appropriate to carry out the intent of the transactions provided
for in this Agreement. Each party shall bear its own costs in connection with
the preparation or filing of any such documents. Purchaser and Seller
acknowledges that as of the Closing Date Seller may have unpaid joint interest
accounts receivable due from joint working interest owners in the Resource
Assets; attributable to the Resource Assets prior to
Closing. Purchaser and Seller agree to act in good faith with respect
to all the provisions hereof and will cooperate with each other and to assist
each other in closing this Agreement.
11.09 CHOICE
OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF
CONFLICTS OF LAWS. THE VALIDITY OF THE VARIOUS CONVEYANCES AFFECTING
THE TITLE TO REAL PROPERTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE JURISDICTION IN WHICH SUCH PROPERTY IS SITUATED. THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN SUCH CONVEYANCES AND THE REMEDIES
AVAILABLE BECAUSE OF A BREACH OF SUCH REPRESENTATIONS AND WARRANTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
WITHOUT GIVING EFFECT TO THE PRINCIPLES OR CONFLICTS OF LAWS.
11.10 Assignment. This
Agreement shall not be assignable by either party without the prior written
consent of the other party provided, however, that the Purchaser may designate
an affiliate to which the Resource Assets shall be assigned at
Closing.
11.11 Binding
Effect. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the purchase and sale
of the Resource Assets or other transactions contemplated
herein. This Agreement may not be amended or terminated except in
writing, signed by the parties hereto. In the event any term or
provision of this Agreement is determined to be invalid or unenforceable, such
invalidity or unenforceability thereof shall not affect the remaining terms and
provisions of this Agreement.
11.12 Counterparts. This
Agreement may be executed in any number of counterparts and each counterpart
shall be deemed to be an original instrument, but all such counterparts shall
constitute but one instrument.
11.13 Expenses
and Fees. Whether or not the transactions contemplated by this
Agreement are consummated, each of the parties hereto shall be obligated to pay
the fees and expense of its counsel, accountants and other expert’s incident to
the negotiation and preparation of this Agreement and consummation of the
transactions contemplated hereby. All sales, use or other taxes
(other than taxes on gross income, net income or gross receipts) and duties,
levies or other governmental charges incurred by or imposed with respect to the
property transfers undertaken pursuant to this Agreement and all costs of
recording the Assignment and any other recordable document shall be the
responsibility of, and shall be paid by, Purchaser. All other costs
shall be borne by the party incurring such costs. In the event that
sales taxes are due on this transaction which must be remitted by Seller under
the laws of the governing jurisdiction, the Purchaser shall provide for the
payment of such amounts to Seller by adjustment to the Purchase Price at
Closing.
11.14 Confidentiality. Prior
to Closing, unless otherwise required by law, neither party will, without the
consent of the other, disclose to any third party (not including the officers,
directors, advisors, agents and representatives of the parties, on a
“need-to-know” basis), or issue a press release with respect to this Agreement
and the transaction contemplated by its terms and provisions and all notices to
third parties and all other publicity concerning the transactions contemplated
by this Agreement shall be jointly planned and coordinated by and between
Purchaser and Seller, provided that both Seller and Purchaser shall have final
approval authority for its press releases and securities filings and is hereby
authorized to issue such press releases concerning this Agreement and to make
such filings as Seller or Purchaser and its counsel may deem necessary or
appropriate under applicable securities laws. Except as provided in
the preceding sentence, neither of the parties shall act unilaterally in this
regard without the prior written approval of the other party, however, this
approval shall not be unreasonably withheld.
11.15 Exchange. Seller
or Purchaser may desire to structure the conveyance of the Resource Assets as
part of an exchange under Section 1031 of the Internal Revenue
Code. Purchaser agrees to execute all documents, conveyances or other
instruments necessary to effectuate an exchange. In order to
structure such a transaction, Seller and Purchaser will agree upon an allocation
of the purchase price between real and personal property.
11.16 Third
Party Beneficiaries. Any agreements herein contained (express or
implied) shall be only for the benefit of the parties hereto and their
respective legal representatives, successors and assigns and shall not inure to
the benefit of any other entity or individual. It being the intention
of the parties hereto that no entity or individual shall be deemed a third party
beneficiary of this Agreement except to the extent such third party is expressly
given rights herein.
ARTICLE
XII
DEFINITIONS
AND INTERPRETATION
12.01 Definitions.
In this Agreement, words and phrases shall have the following meanings unless
the context otherwise indicates or requires:
“Act”
means the Petroleum (Submerged Lands) Xxx 0000 of the Commonwealth of
Australia.
“Agreement”
means this agreement including its schedules and annexures.
“Business
Day” means a day on which major trading banks are open for business in the State
of Washington, USA.
“Governmental
Agency” means any government or governmental, semi-governmental, administrative,
fiscal or judicial body, department, commission, authority, tribunal, agency or
entity.
“Xxxxxxxx”
means Xxxxxxxx Oil and Gas Limited ACN 120 314 007 of Xxxx 0-0, 00 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, 0000, Xxxxxxxxx.
“Information”
means geological, geophysical or technical information within the possession,
custody or control of the Seller including, without limitation, appraisal
drilling information, economic feasibility studies and any information that
relates to the presence, absence, extent and/or the extraction of hydrocarbon
deposits or information required to determine the presence, absence, extent
and/or the extraction of hydrocarbon deposits in the area of the Permit and
which has been obtained from the exploration and prospecting for or production
of hydrocarbons within the Permit including, without limitation, the books,
records, seismic and related interpretative data, drawings, maps and other
information (in various media) related to the Permit.
“JOA”
means the Exploration Joint Operating Agreement Exploration Permit VIC/P60
between ACOR, Sakhai, Kamon and Xxxxxxxx dated # 2007.
“Permit”
means VIC/P60.
“Participating
Interest” has the meaning given to that term in the JOA.
“Resource
Assets” means the undivided 62.5% working interest of Seller in the Permit, the
Participating Interests of Seller under the JOA, the Information and all other
miscellaneous assets in relation to the Permit and the Information.
12.02 Construction.
Unless expressed to the contrary, in this Agreement: (a) words in the singular
include the plural and vice versa; (b) any gender includes the other genders;
(c) if a word or phrase is defined, its other grammatical forms have
corresponding meanings; (d) includes means includes without limitation; (e) no
rule of construction will apply to the disadvantage of a party because that
party drafted, put forward or would benefit from any term; (f) a reference to:
(i) a person includes a partnership, joint venture, unincorporated association,
corporation, entity and a Governmental Agency; (ii) a person includes the
person’s legal personal representatives, successors, assigns and persons
substituted by novation; (iii) any legislation includes subordinate legislation
under it and includes that legislation and subordinate legislation as modified
or replaced; (iv) a right includes a benefit, remedy, discretion or power; (v)
time is to local time in Washington State; (vi) $ or dollars is a
reference to US currency; (vi) this document includes all schedules and
annexures to it; and (vii) a clause, schedule or annexure is a reference to a
clause, schedule or annexure, as the case may be, of this Agreement; and (g) if
the date on or by which any act must be done under this document is not a
Business Day, the act must be done on or by the next Business Day.
12.03 Benefits
of Seller. The rights and benefits of each of Sakhai, Kamon, ACOR under this
Agreement are taken to be rights and benefits of, and may only be exercised by,
Sakhai, Kamon, and ACOR, jointly. The exercise, or purported exercise, of any
right and benefit under this Agreement by any of Sakhai, Kamon, or ACOR will be
taken to be an exercise of that right or benefit by all of them
jointly.
12.04 Liabilities
of Seller. The liabilities and obligations of each of Xxxxxx, Xxxxx and XXXX
under this Agreement are taken to be liabilities and obligations of each of
Xxxxxx, Xxxxx and ACOR jointly.
12.05 This
Agreement supercedes in its entirety all prior agreements or understandings
between the parties which are the subject of this Agreement.
IN
WITNESS THEREOF, Purchaser and Seller has duly executed this Agreement, as of
the day and year first above written.
Executed
for and on behalf of DuJour
Products, Inc.
/s/ J.
Xxxxxxx Xxxxx
Signature
Director
Name and
title (print)
Executed
for and on behalf of Xxx
Xxxxxx
/s/ Xxx
Xxxxxx
Signature
Xxx
Xxxxxx
Name and
title (print)
Executed
for and on behalf of Xxxxxx
Xxxxx
/s/ Xxxxxx
Xxxxx
Signature
Xxxxxx
Xxxxx
Name and
title (print)
Executed
for and on behalf of Australian-Canadian Oil Royalties
Limited
/s/ Xxxxx
Xxxxxx
Signature
President
Name and
title (print)
