AGREEMENT
EXHIBIT
10-1
AGREEMENT
THIS
AGREEMENT (the “Agreement”) is made as of the 27 day of August 2009 (the
“Effective Date”), by and between Bristol Investment Fund, Ltd., a Cayman
Islands company with a registered office at Xxxxxxxxxx Xxxxx, 00 Xxx’s Drive,
X.X. Xxx 0000, Xxxxx Xxxxxx XX0-0000, Xxxxxx Xxxxxxx (“Seller”) and Signature
Exploration & Production Corp., a Delaware corporation
(“Buyer”).
W I T N E
S S E T H:
WHEREAS,
the Seller acquired seismic and geophysical data from Echo Geophysical
Corporation (“Echo”) pursuant to a Participation Agreement dated as of August 6,
2008 by and between Penasco Petroleum, Inc. and Bristol (the “Participation
Agreement”), with respect to the area located in Kenedy County, Texas,
referenced on Exhibit A to the Participation Agreement (the “Kenedy Survey
Area”), for a purchase price of $75,000.00;
WHEREAS,
Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the
seismic and geophysical data with respect to the Kenedy Survey Area (the
“Seismic Data”), and all rights contained in and with respect to the
Participation Agreement, including but not limited to all present and future
participation rights, but excluding Bristol’s right to receive payment as set
forth in Section 2.3 of the Participation Agreement (the “Payment Right”) (the
rights contained in the Participation Agreement, with the exclusion of the
Payment Right, shall collectively be referred to herein as the “Selected
Participation Rights”), for an aggregate purchase price (the “Purchase Price”)
of $75,000.00, payable through the issuance of a note payable by Buyer to Seller
in the amount of $60,000.00 in the form set forth on Exhibit A to this Agreement
(the “Note”);
NOW, THEREFORE, in consideration of the
mutual promises, covenants, and representations contained herein, and subject to
the terms and conditions hereof, the Buyer and Seller agree as
follows:
1. Purchase of Seismic Data and
Selected Participation Rights. On the Closing Date, as defined
below, upon the terms and subject to the conditions set forth herein,
substantially concurrent with the execution and delivery of this Agreement by
the parties hereto, the Seller agrees to sell, and the Buyer agrees to purchase,
the Seismic Data and Selected Participation Rights. The Buyer shall
deliver to the Seller the originally executed Note, and the Seller shall then
cause the Seismic Data and a copy of the Participation Agreement to be delivered
to Buyer. The Closing Date shall be the date that this
Agreement is fully executed.
2. Acknowledgement of Bristol’s
Retention of Payment Right. Buyer and Seller hereby expressly
acknowledge that Bristol is retaining the exclusive right to receive payment
under Section 2.3 of the Participation Agreement (the “Payment Right”) and that
such Payment Right is not subject to this Agreement.
3. Closing. On the
Closing Date, the parties shall perform, in order:
a) Buyer
shall deliver a fully executed copy of this Agreement;
b) Seller
shall deliver a fully executed copy of this Agreement;
c) Buyer
shall deliver to the Seller the originally executed Note via overnight courier;
and
d) Seller
shall immediately cause the Seismic Data and a copy of the Participation
Agreement to be delivered to the Buyer as soon as practicable, to the address
provided by Buyer.
4. Representations and
Warranties of Seller. Seller hereby represents and
warrants to Buyer that the statements in the following paragraphs of this
Section 4 are all true and complete as of the Effective Date and will be true
and complete on the Closing Date as if made on and as of the Closing
Date:
a) Seller
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to enter
into this Agreement and perform its obligations hereunder, and has taken all
action necessary to authorize the sale of the Seismic Data and Selected
Participation Rights to be sold by it pursuant to this Agreement.
b) This
Agreement constitutes the valid and binding obligation of Seller enforceable in
accordance with its terms except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws relating to or affecting creditors’ rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
5. Representations and
Warranties of Buyer. Buyer hereby represents and warrants to
Seller that the statements in the following paragraphs of this Section 5 are all
true and complete as of the Effective Date and will be true and complete on the
Closing Date as if made on and as of the Closing Date:
a) Buyer
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to enter
into this Agreement and perform its obligations hereunder, and has taken all
action necessary to authorize the purchase of the Seismic Data and Selected
Participation Rights to be purchased by it pursuant to this
Agreement.
b) This
Agreement constitutes the valid and binding obligation of Buyer enforceable in
accordance with its terms except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws relating to or affecting creditors’ rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
6. Governing Law;
Jurisdiction. Any dispute, disagreement, conflict of
interpretation or claim arising out of or relating to this Agreement, or its
enforcement, shall be governed by the laws of the State of New
York. Buyer and Seller hereby irrevocably and unconditionally submit
for themselves and their property, to the nonexclusive jurisdiction of Federal
and State courts of the State of New York and any appellate court thereof, in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agree that all claims in respect of any
such action or proceeding may be heard and determined in New York, or, to the
extent permitted by law, in such Federal court. Each of the parties
hereto agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to above. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices below. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in any legal proceeding directly or indirectly arising out of
or relating to this agreement or the transactions contemplated hereby (whether
based on contract, tort or any other theory). If either party shall
commence an action or proceeding to enforce any provisions of this Agreement,
then the prevailing party in such action or proceeding shall be reimbursed by
the other party for its reasonable attorneys’ fees and other costs and expenses
including but not limited to court costs incurred with the investigation,
preparation and prosecution of such action or proceeding.
7. Termination. The
parties may not, except for a material breach or failure of a condition or
requirement, terminate this Agreement.
8. Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
9. Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same agreement. A telefaxed copy or electronic copy in PDF format of
this Agreement shall be deemed an original.
10. Headings. The
headings used in this Agreement are for convenience of reference only and shall
not be deemed to limit, characterize or in any way affect the interpretation of
any provision of this Agreement.
11. Costs,
Expenses. Each party hereto shall bear its own costs in
connection with the preparation, execution and delivery of this
Agreement.
12. Modifications and
Waivers. No change, modification or waiver of any provision of
this Agreement shall be valid or binding unless it is in writing, dated
subsequent to the Effective Date of this Agreement, and signed by both the Buyer
and Seller. No waiver of any breach, term, condition or remedy of this Agreement
by any party shall constitute a subsequent waiver of the same or any other
breach, term, condition or remedy. All remedies, either under this
Agreement, by law, or otherwise afforded the parties shall be cumulative and not
alternative.
13. Severability.
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision(s) were so
excluded and shall be enforceable in accordance with its terms.
14. Entire
Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings duties or obligations between the parties with respect to the
subject matter hereof.
15. Further
Assurances. From and after the date of this Agreement,
upon the request of the Buyer or Seller, Buyer and Seller shall execute and
deliver such instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
16. Term,
Survival. This Agreement is effective from the Effective Date
hereof, and shall remain in effect until all the rights and obligations of the
parties hereto have been fully performed.
17. Notices. All
notices or other communications required or permitted by this Agreement shall be
in writing and shall be deemed to have been duly received:
a) if
given by telecopier, when transmitted and the appropriate telephonic
confirmation received if transmitted on a business day and during normal
business hours of the recipient, and otherwise on the next business day
following transmission,
b) if
given by certified or registered mail, return receipt requested, postage
prepaid, three business days after being deposited in the U.S. mails
and
c) if
given by courier or other means, when received or personally delivered, and, in
any such case, addressed as indicated herein, or to such other addresses as may
be specified by any such person to the other person pursuant to notice given by
such person in accordance with the provisions of this Section 17.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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SELLER
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BRISTOL
INVESTMENT FUND, LTD.
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By:
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/s/ Xxxx Xxxxxxx
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Name:
Xxxx Xxxxxxx
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Title:
Director
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BUYER
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SIGNATURE
EXPLORATION & PRODUCTION CORP.
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
Chief Financial Officer
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