PURCHASE AND OPTION AGREEMENT
Exhibit
10.5
THIS
AGREEMENT made as of March 16, 2004.
BETWEEN:
QUANECO,
L.L.C.,
a
limited liability company organized under the laws of the State of Oklahoma
(hereinafter referred to as “Quaneco”)
-
and
-
FELLOWS
ENERGY, LTD., a
body
corporate incorporated under the laws of the State of Colorado (hereinafter
referred to as “Fellows Energy”)
WHEREAS
Quaneco has agreed to xxxxx Xxxxxxx Energy the exclusive and irrevocable option
to acquire a 65% interest in the Assets and Fellows Energy has agreed to pay
Quaneco the Initial Payment and conduct certain work on the Option Lands to
have
the exclusive right to exercise the option to acquire an interest in the Assets
for the consideration and in accordance with the terms and conditions set forth
herein;
NOW
THEREFORE in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Parties agree as follows:
ARTICLE
I - INTERPRETATION
1.1 Definitions
In
this
Agreement including the recitals, and the Schedules, unless otherwise stated
or
unless the context otherwise requires, the following words and phrases will
have
the meanings hereby assigned to them:
a)
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“Agreement”,
“this
Agreement”,
“herein”,
“hereby”,
“hereto”
and “hereof”
and similar expressions mean and refer to this Agreement and includes
any
Schedules attached hereto and any agreement amending this Agreement
or any
agreement or instrument which is supplemental or ancillary hereto;
and the
expressions “Article”, “Paragraph” and “Subparagraph” followed by a number
or letter or combination thereof, or “Schedule” followed by a letter, mean
and refer to the specified Article, Paragraph, Subparagraph of, or
Schedule to, this Agreement;
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b)
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“Assets”
means an undivided sixty-five (65%) percent working interest and
an
undivided fifty-two (52%) percent net revenue interest in and to
the
Petroleum Rights, and an undivided sixty-five (65%) percent interest
in
the Tangibles and the Miscellaneous
Interests;
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c)
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“Closing”
means the delivery by Fellows Energy to Quaneco of the Initial Payment,
the commitment by Fellows Energy to its share of the Phase One Drilling
Program, and such other actions, all as further detailed in Paragraph
3.1,
occurring on the Closing Date, at the offices of Fellows Energy,
Ltd. in
Broomfield, Colorado;
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d)
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“Closing
Conditions”
means the conditions set out in Paragraph 3.2, which are for the
sole
benefit of Fellows Energy and which may be waived in whole or in
part by
Fellows Energy at any time on or before the Closing
Date;
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e)
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“Closing
Date”
means the hour of 2:00 p.m. MST on March 16 , 2004, or such other
time and
date as may be agreed upon in writing by Quaneco and Fellows
Energy;
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1
f)
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“Dollars”
or “$”
means the official and legal currency of the United States of
America;
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g)
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“Force
Majeure”
means any acts of God, including flood, fire, storms, lightning,
landslides and earthquakes; any strikes, lockouts or other industrial
disturbances; acts of war, blockades, insurrections, riots, arrests
and
restraints of rulers and peoples, civil disturbances and explosions;
the
binding order of any court or governmental authority; the issuance
of a
moratorium or significant restriction on drilling activity by any
court or
governmental authority; and any other cause, whether of the kind
herein
enumerated or otherwise, not within the control of the Party claiming
suspension and which, by the exercise of due diligence, is unpreventable
or incapable of being overcome. Lack of funds and economic hardship
will
not constitute Force Majeure;
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h)
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“Initial Payment” means the non-refundable payment, to be made by Fellows Energy to Quaneco at Closing, of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00). |
i)
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“Leases”
means, collectively, any and all leases, and other documents of title
including, without limitation, all agreements granting, reserving
or
otherwise conferring rights to explore for, drill for, produce, take,
use,
market, share in the production of or the proceeds from the sale
of
Petroleum Substances; and rights to acquire any of the foregoing
rights;
but only if the foregoing pertain in whole or in part to Petroleum
Substances within, upon or under the Option Lands, including, without
limitation, those leases set out in Schedule “A” under the heading
“Leases”;
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j)
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“Miscellaneous
Interests”
means all right, title, estate and interest (whether absolute or
contingent, legal or beneficial), of Quaneco in and to all property,
assets and rights (other than the Petroleum Rights or Tangibles)
pertaining to the Petroleum Rights or Tangibles including, without
limitation:
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(i)
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all
contracts, agreements, and documents relating to the Petroleum
Rights;
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(ii)
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all
surface leases, surface access right-of-way and damage agreements
and any
subsisting rights to enter upon, use or occupy the surface of any
lands
which are or may be used to gain access to or otherwise use the Petroleum
Rights and/or the Tangibles;
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(iii)
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all
Xxxxx; and
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(iv)
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all
well, pipeline and other permits, licenses and authorizations relating
to
the Petroleum Rights or the
Tangibles;
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k)
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“Net
Mineral Acre”
means the full mineral interest in one (1) acre of Option Lands as
set
forth in Schedule “A”. Where consideration is expressed in this Agreement
as being on the basis of dollars per Net Mineral Acre, such amount
is
based upon the number of Net Mineral Acres included in the Assets
to be
assigned to Fellows Energy pursuant to this
Agreement;
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l)
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“Operating
Agreement”
means the American Association of Petroleum Landmen Model Form Operating
Agreement (A.A.P.L. Form 610 - 1989 version), including the rates,
elections and modifications contained therein, and incorporating
the XXXXX
1995 Accounting Procedure, which will be attached as an exhibit to
the
Operating Agreement, including the rates, elections and modifications
contained therein. The Operating Agreement rates, elections and
modifications will be negotiated by Quaneco and Fellows Energy and
added
as an addendum to this Agreement prior to the Closing
Date;
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m)
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“Option”
means the exclusive and irrevocable option granted by Quaneco to
Fellows
Energy to acquire the Assets, exercisable in accordance with Paragraph
4.1;
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n)
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“Option
Lands”
means the lands as described in Schedule “A”, together with the rights to
explore for and recover the Petroleum Substances within, upon or
under
such lands, insofar only as such rights are granted by the
Leases;
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2
o)
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“Option
Period”
means:
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(i)
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for
Phase One of the Option Lands, as described in Schedule “A”, the period in
time of six (6) months from the Closing Date, provided that if the
Phase
One Drilling Program is not completed within six (6) months from
the
Closing Date, due to delays caused by Force Majeure situations, the
Option
Period will be extended for a concurrent period of time equal to
the
period of time the Force Majeure situation existed;
and
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(ii)
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for
Phase Two of the Option Lands, as described in Schedule “A”, the period in
time of twelve (12) months from the Closing Date provided that if
the
Phase Two Drilling Program is not completed within twelve (12) months
from
the Closing Date, due to delays caused by Force Majeure situations,
the
Option Period will be extended for a concurrent period of time equal
to
the period of time the Force Majeure situation
existed;
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p)
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“Party”
and “Parties”
means the entity or entities, as the case may be, named in the first
paragraph of this Agreement and any respective permitted successors
or
assigns;
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q)
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“Permitted
Encumbrances”
means:
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(i)
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liens
for Taxes not at the time due or delinquent or the validity of which
is
being contested at the time in good faith by or on behalf of Quaneco,
but
only to the extent Quaneco, at its option, elects to indemnify Fellows
Energy against such claims;
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(ii)
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builder’s,
mechanic’s, laborer’s, carrier’s, warehouseman’s, materialman’s and
similar liens being contested in good faith or not then delinquent,
but
only to the extent Quaneco, at its option, elects to indemnify Fellows
Energy against such claims;
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(iii)
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easements,
rights of way, servitudes or other similar rights in land which do
not
materially detract from the value of the land concerned or materially
impair the use of the Assets affected
thereby;
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(iv)
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rights
of general application reserved to or vested in any governmental
authority
to levy Taxes on the Petroleum Substances or the income
therefrom;
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(v)
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statutory
exceptions to title, and the reservations, limitations, provisos
and
conditions in any original grants from the governments of the States
of
Utah or Wyoming or the United States of America of any of the mines
and
minerals within, upon or under the Option Lands;
and
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(vi)
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lessor
royalties, royalty burdens, liens, adverse claims, and other encumbrances
(collectively the “Royalties” in this definition) set forth in Schedule
“B” attached hereto or if such Royalties are not actually described,
that
total of such Royalties that result in Quaneco’s net revenue interest in
the Leases equal eighty-percent (80%), as such net revenue interest
is
described under the heading “Lease NRI” in Schedule
“A”;
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r)
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“Petroleum
Rights”
means all of Quaneco’s interest in and to the Leases, to the extent
applicable to the Option Lands, as set forth in Schedule
“A”;
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s)
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“Petroleum
Substances”
means any of crude oil, crude bitumen and products derived therefrom,
synthetic crude oil, petroleum, natural gas, natural gas liquids,
coalbed
methane, and hydrocarbons related to any of the foregoing, to the
extent
granted by or under the Leases, insofar only as they pertain to the
Option
Lands;
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t)
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“Phase
One Drilling Program”
means the expenditure by Fellows Energy, after Closing, of approximately
One Million Dollars ($1,000,000.00) to drill, test, complete, production
test and shut-in or plug and abandon a minimum of five (5) core holes,
the
location and depth of the core holes to be mutually agreed to by
the
parties, on the Option Lands in the Prospect Area, as further detailed
in
Paragraph 3.3;
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3
u)
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"Phase
Two Drilling Program"
means the expenditures by Fellows Energy after the Phase One Drilling
Program of at least One Million Dollars ($1,000,000.00) to complete
a
pilot well program of Fellows Energy's design.
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v)
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“Prospect
Area”
means the area containing the Option Lands and the area in which
the
Parties agree to jointly acquire lands, pursuant to the terms and
conditions as set out in Article VII. The Prospect Area is identified
in
the map attached as Schedule “C”;
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w)
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“Purchase
Price 1”
means the consideration payable by Fellows Energy to Quaneco, if
Fellows
Energy exercises the Option on Phase I of the Option Lands, of $15
per net
mineral acre acquired of part or all of the Option Lands (maximum
investment of 183,945 net mineral acres x 65% x $15 =
$1,793,463.70);
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x)
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“Purchase
Price 2”
means the consideration payable by Fellows Energy to Quaneco, if
Fellows
Energy exercises the Option on Phase II of the Option Lands, of $35
per
net mineral acres of part or all of the Option Lands (maximum investment
of 183,945 net mineral acres x 65% x $35 =
$4,184,748.70);
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y)
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“Tangibles”
means all of Quaneco’s interest in and to any and all tangible and
depreciable property including, without limitation, all well equipment
located on the wellsites of the Xxxxx located on the Option
Lands;
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z)
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“Taxes”
means all taxes imposed at a federal, state, county or local level
affecting or related to the Assets, including but not limited to
any
windfall profit taxes, excise taxes, ad valorem taxes, production
taxes
and severance taxes, including interest and penalties, if any, thereon
(but exclusive of federal and state income taxes and franchise or
other
taxes imposed upon Quaneco and Fellows Energy) incurred or accruing
after
the Closing Date; and
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aa)
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“Xxxxx”
means all producing, suspended, shut-in, disposal or injection xxxxx
located on the Option Lands including, without limitation, the xxxxx
set
forth and described in Schedule
“A”.
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1.2 Schedules
There
is
appended to this Agreement the following Schedules:
a)
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Schedule
“A”, containing a description of the Option Lands, Leases, Permitted
Encumbrances and the Xxxxx;
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b)
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Schedule
"B" containing a description of the Royalties that burden the Option
Lands;
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c)
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Schedule
“C”, containing a map which identifies the Prospect Area;
and
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d)
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Schedule
“D”, describing the drilling and geological requirements for Fellows
Energy’s operations during the Phase One Drilling
Program.
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The
Schedules are incorporated herein as though contained in the body hereof.
Wherever any term or condition, express or implied of the Schedules conflict
or
are at variance with any term or condition in this Agreement, such term or
condition of this Agreement will prevail.
1.3 Applicable
Law
This
Agreement will, in all respects, be subject to, construed and enforced in
accordance with the laws of the State of Utah, without regard to principles
of
conflict of laws. Except with those matters which are the subject of arbitration
as provided in Paragraph 9.7, the Parties do hereby irrevocably submit and
attorn to the jurisdiction of the courts of the State of Utah for all other
matters arising out of or in connection with this Agreement.
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1.4 Successors
and Assigns
This
Agreement will enure to the benefit of and be binding upon the respective
successors and permitted assigns of the Parties, subject to compliance with
the
provisions of Paragraph 9.6.
1.5 Interpretation
a)
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Included
Words:
Words importing the singular number include the plural and vice versa
and
words importing gender include the masculine, feminine and neuter
genders.
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b)
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Waiver
and Amendment:
No failure of any Party in exercising any right or remedy hereunder
will
operate as a waiver thereof, nor will any single or partial exercise
of
any such right or remedy preclude any other or further exercise thereof
or
the exercise of any right or remedy in law or in equity or by statute
or
otherwise conferred. No waiver or amendment of any provision of this
Agreement will be effective unless waived or varied by an instrument
in
writing dated subsequent to the date hereof, executed by duly authorized
representatives of all Parties.
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c)
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Time:
Time will be of the essence of this
Agreement.
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d)
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Entire
Agreement:
This Agreement constitutes the entire agreement of the Parties relative
to
the subject matter contained herein, and there are no oral or other
representations or warranties connected with the subject matter hereof
other than as are contained herein, except as and to the extent that
any
other agreement, document, or instrument, whether the whole or any
terms
thereof, may be incorporated herein by reference, or authorized,
required
or permitted by the terms hereof, or obligations contained therein
may be
assumed by any of the Parties or stated herein to be of continuing
effect.
Wherever any term or condition, express or implied of a document
delivered
in pursuance hereof conflicts or is at variance with any term or
condition
in this Agreement, such term or condition of this Agreement will
prevail.
Subject to the foregoing, this Agreement supercedes all prior agreements
between the Parties relating to the subject matter contained
herein.
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ARTICLE
II - TITLE OBJECTIONS AND THIRD PARTY RIGHTS AND
CONSENTS
2.1 Title
Review
Prior
to
the Closing Date, Fellows Energy will review Quaneco's title to the Assets.
In
Fellows Energy’s review of Quaneco’s title to the Assets, if any encumbrance,
encroachment, claim or defect is disclosed by Fellows Energy’s title opinions or
by the title information provided by Quaneco to Fellows Energy, county records,
Bureau of Land Management records, or any other source, other than Permitted
Encumbrances, which in the opinion of Fellows Energy renders title to the Assets
not good or marketable or which otherwise constitutes a breach of any warranty
or representation of Quaneco herein pertaining to the Assets, and which Fellows
Energy does not waive (all of which herein are called “Title Defects”), Fellows
Energy will give written notice to Quaneco of such Title Defects not later
than
five (5) days prior to the Closing Date Such notice will include a description
of each Title Defect and the Option Lands affected thereby. Quaneco will
diligently make all reasonable efforts to cure or rectify all Title Defects,
not
later than three (3) days prior to the Closing Date.
2.2 Cure
If
the
Title Defects are not cured or removed to the satisfaction of Fellows Energy
at
least three (3) days prior to Closing, Fellows Energy may, as its sole remedy
for such Title Defects, elect in writing to:
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a)
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not
close this Agreement, if the total of the Title Defects, which are
not
cured or removed to the satisfaction of Fellows Energy, affect more
than
fifteen (15%) percent of the
Assets;
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b)
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grant
a further period or periods of time, not to exceed fifteen (15) days,
within which Quaneco will attempt to cure or remove the Title Defects,
in
which event the Closing Date will be deferred for a like
period;
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c)
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waive
the uncured Title Defects;
or
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d)
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delete
the affected Assets from this transaction and reduce the Purchase
Price 1
and/or Purchase Price 2, as the case may be, if Fellows Energy exercises
the Option) accordingly, which remedy must be mutually agreed to
by
Quaneco and Fellows Energy.
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ARTICLE
III - CLOSING AND PHASE ONE DRILLING PROGRAM
3.1 Closing
Subject
to the Closing Conditions, at Closing, the following will occur, all of which
will be deemed to have occurred simultaneously:
a)
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Fellows
Energy will deliver one hundred (100%) percent of the Initial Payment
to
Quaneco, on behalf of Fellows Energy, by wire transfer of funds to
a bank
and bank account of Quaneco’s
choosing;
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b)
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Quaneco
and Fellows Energy will execute, acknowledge and deliver a mutually
agreeable memorandum of this Agreement, suitable for recording where
appropriate, which will give notice of this Agreement and the rights
of
the Parties;
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c)
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Quaneco
will execute and deliver to Fellows Energy a designation of operator
or
other documents that might be reasonably required to afford Fellows
Energy
access to the Option Lands and Leases in order to conduct the Phase
One
Drilling Program.
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3.2 Closing
Conditions
The
obligation of Fellows Energy to attend Closing, pay the Option Payment and
commit to its share of the Phase One Drilling Program is subject to the
following Closing Conditions:
a)
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Fellows
Energy will have done such due diligence regarding Quaneco's interest
in
and title to the Assets including, but not limited to, verification
that
the Parties comprising Quaneco collectively own a one hundred (100%)
percent working interest in the Option Lands and the Leases, the
Leases
have a net revenue interest of not less than eighty (80%) percent
and that
Quaneco is capable of assigning the Assets to Fellows
Energy;
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b)
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Fellows
Energy will have the opportunity to review, and will be satisfied
with,
all agreements relating to Quaneco's interest in the
Assets;
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c)
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At
the Closing Date, Fellows Energy shall be designated as operator
for the
exploration, development and production of all coalbed methane on
the
Option Lands and within the Prospect
Area;
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d)
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The
Assets and the Prospect Area will not be subject to any contracts
for the
production, sale and transportation of petroleum
substances.
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3.3 Phase
One Drilling Program
Fellows
Energy agrees to complete the Phase One Drilling Program during the initial
six
(6) months of the Option Period. The expenditure amount required by Fellows
Energy in the Phase One Drilling Program will include all direct costs incurred
by Fellows Energy’s staff or consultants (limited to ten (10%) percent of the
total spent) to manage the Phase One Drilling Program, but will not include
any
of Fellows Energy’s overhead and managerial costs. All information, data,
records and related materials from the Phase One Drilling Program activity
will
be the joint property of the Parties and Fellows Energy will provide such
information to Quaneco as it is obtained In the event Fellows Energy does not
elect to exercise the Purchase Price 1, then any costs incurred and paid by
Fellows Energy in the Phase One Drilling Program, including any costs incurred
in excess of the One Million Dollars ($1,000,000.00), will vest and inure to
the
sole benefit of Quaneco.
3.4 Phase
Two Drilling Program
In
the
event that Fellows Energy elects to exercise Purchase Price 1, Fellows Energy
agrees to complete the Phase Two Drilling Program during the initial twelve
(12)
months of the Option Period. The expenditure amount required by Fellows Energy
in the Phase Two Drilling Program will include all direct costs incurred by
Fellows Energy’s staff or consultants (limited to ten (10%) percent of the total
spent) to manage the Phase Two Drilling Program, but will not include any of
Fellows Energy’s overhead and managerial costs. All information, data, records
and related materials from the Phase Two Drilling Program activity will be
the
joint property of the Parties and Fellows Energy will provide such information
to Quaneco as it is obtained In the event Fellows Energy does not elect to
exercise the Purchase Price 2, then any costs incurred and paid by Fellows
Energy in the Phase Two Drilling Program, including any costs incurred in excess
of the One Million Dollars ($1,000,000.00), will vest and inure to the sole
benefit of Quaneco.
3.5 Activity
During Option Period
a)
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During
the Option Period, Fellows Energy will assume the responsibilities
of
operator, and conduct all operations consistent with its ultimate
ownership interest as if it had exercised the Option.
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b)
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The
Parties further agree that, after Fellows Energy’s payment of the Initial
Payment to Quaneco at Closing, and during the Phase One and Phase
Two
Option Period, the ongoing operation of the Option Lands and Leases
and
relationship between the Parties in respect of the Option Lands and
Leases
and the Phase One and Phase Two Drilling Programs will be governed
by this
Agreement.
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c)
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All
of Fellows Energy’s operations in the Phase One and Phase Two Drilling
Programs will be conducted in a careful and workmanlike manner consistent
with good oil field practices and in compliance with all applicable
laws,
rules and regulations, and in accordance with the drilling and geological
requirements set out in Schedule “D”. Fellows Energy agrees to comply with
and observe all of the terms and conditions of the Leases and amendments,
addendums and exhibits thereto, covering the Option Lands. Fellows
Energy
agrees to indemnify and save Quaneco harmless from all claims, demands,
losses, damages and liabilities resulting from or arising out of
the
violation of any such laws, rules and regulations or the breach of
any
provisions of such Leases, and agrees to defend any suit that may
be
brought and pay any judgment that may be rendered against Quaneco
for any
such breach or violation as a result of Fellows Energy’s operations in the
Phase One and Phase Two Drilling
Program.
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ARTICLE
IV - EXERCISE OF OPTION
4.1 Exercise
of the Option (s)
a)
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On
or before the end of the initial six month Option Period for the
Option
Lands, Fellows Energy may elect to exercise the Option to perform
the
Phase Two Drilling Program of the Option Lands. If Fellows Energy
elects
to exercise the Option to perform the Phase Two Drilling Program
on the
Option Lands, it must provide its election in writing to Quaneco
and pay
to Quaneco the Purchase Price 1. On or before the twelve (12) month
Option
Period on the Option Lands, Fellow Energy may elect to exercise the
Purchase Price 2 to acquire the Assets in the Option Lands, it must
provide its election in writing to Quaneco and pay to Quaneco the
Purchase
Price 2. Upon Fellows Energy electing to exercise the Option and
concurrently with Fellows Energy paying the Purchase Price 2, Quaneco
will
deliver the assignments and other conveyances of the Assets in the
Option
Lands to Fellows Energy within ten business days, and Fellows Energy
and
Quaneco will thereafter participate in all future work on the Option
Lands
and Leases at their respective working interests, subject to the
Operating
Agreement, with Fellows Energy named as operator therein. In the
event
Fellows Energy does not elect to exercise the Option to pay Purchase
Price
2 and to acquire the Assets in the Option Lands, then Fellows Energy’s
right to acquire the Assets will terminate, Fellows Energy will no
longer
be the operator of any of the Option Lands and the Option Payment
and any
other payments and all information from the Drilling Program will
be
retained by Quaneco.
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ARTICLE
V - REPRESENTATIONS AND WARRANTIES
5.1 Covenants,
Representations and Warranties of Quaneco
Fellows
Energy acknowledges that the acquisition of the Assets is on an “as is, where
is” basis, without representation and warranty and without reliance on any
information provided to Fellows Energy by Quaneco or any third party, and
Quaneco, where applicable and as the case may be, make the following
representations and warranties to Fellows Energy in respect of the
Assets:
a)
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Quaneco
is a valid and subsisting limited liability company and is validly
existing under the laws of its jurisdiction of organization and the
jurisdiction within which the Assets are located; and has all requisite
power and authority to assign a proportionate interest in the Petroleum
Rights, Tangibles and Miscellaneous Interests which together will
comprise
the Assets;
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b)
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the
transactions contemplated in this Agreement have been duly and validly
authorized and all documents and instruments contemplated in this
Agreement, including this Agreement, have been duly and validly
authorized, executed and delivered;
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c)
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the
transactions contemplated in this Agreement will not violate, nor
be in
conflict with any provisions of Quaneco's constituting documents,
by-laws
or governing documents, or any agreement or contract or instrument
to
which it is a party or by which it is bound or any judgment, decree,
order, statute, rule or regulations applicable to
it;
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d)
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this
Agreement, and all documents and instruments contemplated thereby,
are
legal, valid and binding obligations of Quaneco, enforceable against
it in
accordance with their respective
terms;
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e)
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Quaneco
has incurred no obligation or liability for broker’s or finder’s fees in
respect of this Agreement, or the transactions contemplated hereby,
for
which Fellows Energy will have any obligation or
liability;
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f)
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the
Assets are free and clear of all mortgages, pledges, liens, charges,
burdens and encumbrances (other than the Permitted Encumbrances)
created
by, through or under Quaneco, but, subject to the foregoing, Quaneco
will
not be bound to convey and does not warrant any better title to the
Assets
than it now has;
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g)
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Quaneco
has received no notice of default including, without limitation,
a notice
of work required to be done, under any agreement relating to the
Assets to
which it is a party or by which it is bound, or with respect to any
statute, order, writ, injunction or decree of any governmental agency
or
of any court which might adversely affect the
Assets;
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h)
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Quaneco
has made or has caused to be made proper and timely payments of all
royalties, bonus payments, option payments, rentals and deposits
due under
the Leases and has complied with, performed, observed and satisfied
or has
caused to be complied with, performed, observed and satisfied all
material
terms, conditions, obligations and liabilities which have arisen
under any
of the provisions of any of the Leases or any agreements or instruments
or
any statute, order, writ, injunction or decree of any governmental
agency
or of any court relating to the
Assets;
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i)
|
subject
to the Permitted Encumbrances, Quaneco has done no act or suffered
or
permitted no action to be done whereby any individual or legal entity
has
acquired or may acquire any interest in or to the
Assets;
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j)
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there
are no existing or outstanding authorities for expenditures related
to the
Assets, nor any other financial commitments which are now outstanding
or
due, other than usual operating expenses incurred in the normal course
of
business;
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k)
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to
the best of its knowledge, without having made any special
inquiry, all
Taxes that pertain to the Assets and that are due and payable by
Quaneco
have been properly paid;
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l)
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to
the best of its knowledge, without having made any special inquiry,
no
suit, action or other proceeding is commenced, pending or threatened
before any court or governmental agency or tribunal, which might
have a
material adverse affect on the
Assets;
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m)
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subject
to the rents, covenants, conditions and stipulations contained in
the
Leases, Fellows Energy may enter into and upon, hold and enjoy the
Leases
for the residue of their respective terms and all renewals or extensions
of the Leases for its own use and benefit, without any lawful interruption
by Quaneco or any individual or entity claiming, or to claim, by,
through
or under Quaneco, except pursuant to Permitted
Encumbrances;
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These
representations and warranties of Quaneco herein contained are true in all
respects when made and additionally will be true on and as of the Closing Date.
These covenants, representations and warranties will either be in or deemed
to
apply to the assignments and other conveyances described in Paragraph 3.1,
and
there will not be any merger of any covenant, representation or warranty in
such
assignments and other conveyances, any rule of law, equity or statute to the
contrary notwithstanding, and all such covenants, representations and warranties
will survive Closing for a period of twenty four (24) months.
5.2 Covenants,
Representations and Warranties of Fellows Energy
Fellows
Energy hereby covenants with, and represents and warrants to Quaneco in respect
of the Assets, that:
a)
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Fellows
Energy is a valid and subsisting corporation and is validly existing
under
the laws of its jurisdiction of incorporation and the jurisdiction
within
which the Assets are located, and has all requisite power and authority
to
acquire the Assets;
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9
b)
|
the
transactions contemplated in this Agreement have been duly and validly
authorized and all documents and instruments contemplated in this
Agreement, including this Agreement, have been duly and validly
authorized, executed and delivered;
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c)
|
the
transactions contemplated in this Agreement will not violate, nor
be in
conflict with any provisions of Fellows Energy's constituting documents,
by-laws or governing documents, or any agreement or contract or instrument
to which it is a party or by which it is bound or any judgment, decree,
order, statute, rule or regulations applicable to
it;
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d)
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this
Agreement, and all documents and instruments contemplated thereby,
are
legal, valid and binding obligations of Fellows Energy enforceable
against
it in accordance with their respective
terms;
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e)
|
Fellows
Energy has incurred no obligation or liability for broker’s or finder’s
fees in respect of this Agreement or the transactions contemplated
hereby
for which Quaneco will have any obligation or
liability;
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f)
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Fellows
Energy is acquiring the Assets as principal and not as an agent of
a third
party.
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These
representations and warranties of Fellows Energy herein contained are true
in
all respects when made and additionally will be true on and as of the Closing
Date. These covenants, representations and warranties will either be in or
be
deemed to apply to the assignments and other conveyances described in Paragraph
3.1, and there will not be any merger of any covenant, representation or
warranty in such assignments, any rule of law, equity or statute to the contrary
notwithstanding and all such covenants, representations and warranties will
survive Closing for a period of twenty four (24) months.
ARTICLE
VI - ADJUSTMENTS AND OPERATING MATTERS
6.1 Adjustments
Subject
to all other provisions of this Agreement, there will be no adjustments of
any
kind and nature relating to the operation of the Assets as of the Closing Date,
except that the Parties agree to the following:
a)
|
prior
to the Closing Date, all benefits and obligations relating to the
Assets,
including bonus and option payments made to the lessors of the Leases,
annual delay rentals and shut-in royalties required to continue the
Leases, operating costs and expenses, and capital costs, will be
paid by
and be the sole responsibility of
Quaneco;
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b)
|
subsequent
to the Closing Date and during the Option Period, all annual delay
royalties and shut-in royalties required to continue the Leases will
be
shared as to Quaneco thirty-five percent (35%) and Fellows Energy
sixty-five percent (65%) except to the extent that Fellows Energy
elects
not to exercise part or all of the Option in Phase I or Phase II
of the
Option Lands;
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c)
|
subsequent
to the Closing Date and during the Option Period, all option payments
made
to the lessors of the Leases and required to extend the term of the
Leases, will be shared as to Quaneco thirty-five percent (35%) and
Fellows
Energy sixty-five percent (65%) except to the extent that Fellows
Energy
elects not to exercise part or all of the Option in Phase I or Phase
II of
the Option Lands; and
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6.2 Quaneco
to Provide Notices to Fellows Energy
Following
the Closing, Quaneco will forthwith provide to Fellows Energy all notices,
specific information and other documents in respect of the Assets which it
receives and will respond to such notices, information and other documents
pursuant to the written instructions of Fellows Energy, if received on a timely
basis, provided that Quaneco may (but will not be obliged to) refuse to follow
instructions which it reasonably believes to be unlawful or in conflict with
an
applicable contract or Lease.
10
6.3 Specific
Conveyances of Government Leases
With
respect to those Leases issued by the government of the United States of America
or agencies thereof, or by the State of Utah or agencies thereof, which require
filing with and approval by the Bureau of Land Management or other agency of
the
United States of America, or by the appropriate agency by any state or local
governmental authority or agency having jurisdiction thereof, (“Government
Leases”), Quaneco will use its best efforts to assist and cooperate with Fellows
Energy in obtaining the approval to the specific conveyance of the Assets from
the agency having jurisdiction thereover. Any specific conveyances of Government
Leases delivered to the Escrow Agent at Closing will:
a) be
executed, acknowledged and delivered to the Escrow Agent;
b)
|
be
on forms agreed upon between Quaneco and Fellows Energy, or where
appropriate, on forms prescribed or suggested by the agency having
jurisdiction thereover;
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c)
|
evidence
the assignment of the Assets; and
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d)
|
not
modify any of the terms, covenants and warranties herein set forth
(except
to the extent the specific conveyance better describes the particular
Lease and Option Lands).
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Each
specific conveyance and this Agreement will, when taken together, be deemed
to
constitute but one assignment by Quaneco of the Assets as described in such
specific conveyance.
ARTICLE
VII - AREA OF MUTUAL INTEREST
7.1
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Area
of Mutual Interest
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a)
|
In
this Article “mutual interest lands” means any leases, and any other
documents of title including without limitation any agreements granting,
reserving or otherwise conferring rights to explore for, drill for,
produce, take, use, market, share in the production of or the proceeds
from the sale of Petroleum Substances; any portion of which lie fifty
(50%) percent or more within the Prospect
Area.
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b)
|
The
provisions of this Article will exist from the date of this Agreement
and
remain in effect until twenty four (24) months after Fellows Energy
exercises the Option to acquire the Assets in the Option Lands, or,
in the
event Fellows Energy does not exercise the Option and its right to
acquire
the Assets in the Option Lands is terminated or expires, then the
provisions of this Article will no longer be in effect as of the
date of
such termination or expiration.
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c)
|
Each
of the Parties represents and warrants that it is not a party to
any
agreement which predates this Agreement whereby it is obligated to
offer
an interest in any mutual interest lands to any third party, who
is not a
Party.
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d)
|
For
the purpose of this Article, only money consideration actually paid
for an
interest in any mutual interest lands will be reimbursed. If one
of the
Parties (“Acquiring Party”) acquires an interest in mutual interest lands,
the Acquiring Party will forthwith give written notice to the other
Parties together with all pertinent information with respect thereto.
Each
of the other Parties will have the option to acquire an interest
from the
Acquiring Party equal to their respective participating interest,
exercisable by payment of the proportionate share of the costs of
acquisition within sixty (60) days of
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11
receipt
of notice of the acquisition. If the non-acquiring parties comprise
more
than one party and if one of the other parties does not exercise
the
option hereinbefore provided, the party (or parties) exercising the
option
will have a further option, exercisable by payment within twenty (20)
days of notice thereof, to acquire from the Acquiring Party its
proportionate share of the interest which was offered to the party
which
did not exercise the option in the original
instance.
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e)
|
In
the event the consideration is the fulfillment of an obligation to
earn an
interest instead of money consideration, then the non-acquiring party
may
elect to participate for its proportionate share in fulfilling such
obligation, to earn its proportionate share of the earnable interest.
In
the event the consideration is neither cash nor the fulfillment of
an
obligation the Acquiring Party will set out its bona fide estimate
of the
value in cash of the consideration and the non-acquiring party may
acquire
an interest as though that estimate were a cash consideration pursuant
to
Subparagraph 7.1(c). In case of dispute as to the reasonableness
of the
estimate the matter will be referred to arbitration, pursuant to
the
provisions of Paragraph 9.7.
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f)
|
If
any of the mutual interest lands are posted for public sale, the
Parties
will consult with a view to reaching an agreeable bid price for such
lands
and if agreement is reached Fellows Energy will make a bid therefore
in
the names and on behalf of all of the Parties. If agreement is not
reached
on a bid price by all of the Parties prior to forty-eight (48) hours
before the time for submission of bids, each of the Parties may submit
its
own bid and may acquire an interest in the mutual interest lands
for its
own account and the provisions of Subparagraph 7.1(d) will not apply
unless the party acquiring such lands does so at a price which differs
by
more than five (5%) percent from the price which such party
had
represented to the other parties as the price which such party would
submit as a bid price, in which event such Acquiring Party must give
the
notice required under the provisions of Subparagraph
7.1(d).
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g)
|
With
respect to any mutual interest lands in which all of the Parties
acquire a
working interest pursuant to this Article, the interests of the parties
therein will forthwith become subject to the Operating Agreement,
with
Fellows Energy being appointed as operator and the interests of the
Parties will be in accordance with the respective participating interests
of the Parties, pursuant to Paragraph 3.5, subject to adjustments
in
accordance herewith.
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ARTICLE
VIII - INDEMNITY
8.1 Indemnity
of Quaneco
Quaneco
will be liable to Fellows Energy, its officers, directors, employees, agents,
successors or permitted assigns (herein referred to collectively as “Fellows
Energy”) for and, in addition, will indemnify and save Fellows Energy harmless
from and against all claims, liabilities, actions, proceedings, demands, losses,
costs, damages and expenses whatsoever which may be brought against or suffered
by Fellows Energy or which it may sustain, pay or incur, as a direct consequence
of Quaneco’s breach of any of Quaneco’s representations or warranties contained
in Paragraph 5.1. No claim may be made against Quaneco for such liability or
indemnity or pursuant to or based in any way upon the provisions of this
Paragraph 8.1 unless written notice thereof with reasonable particulars will
have been provided by Fellows Energy to Quaneco within twenty four (24) months
of the Closing Date. The indemnified Party hereunder will give the indemnifying
Party prompt notice in writing of any claim to which this Paragraph 8.1 applies
and afford the indemnifying Party the reasonable opportunity to pay, settle
or
contest the claim at its expense.
8.2 Indemnity
of Fellows Energy
Fellows
Energy will be liable to Quaneco, its officers, directors, employees, agents,
successors or permitted assigns (herein referred to collectively as “Quaneco”)
for and, in addition, will indemnify and save Quaneco harmless from and against
all claims, liabilities, actions, proceedings, demands, losses, costs, damages
and expenses whatsoever which may be brought against or suffered by Quaneco
or
which it may sustain, pay or incur, as a direct consequence of Fellows Energy’s
breach of any of Fellows Energy’s representations or warranties contained in
Paragraph 5.2. No claim may be made against Fellows Energy for such liability
or
indemnity or pursuant to or based in any way upon the provisions of this
Paragraph 8.2 unless written notice thereof with reasonable particulars will
have been provided by Fellows Energy to Quaneco within twenty four (24) months
of the Closing Date. The indemnified Party hereunder will give the indemnifying
Party prompt notice in writing of any claim to which this Paragraph 8.2 applies
and afford the indemnifying Party the reasonable opportunity to pay, settle
or
contest the claim at its expense.
12
8.3 Non-Merger
of Indemnities and Liabilities
The
liabilities and indemnities contained herein will be deemed to apply to, and
will not merge in, all specific conveyances conveying the Assets to Fellows
Energy or otherwise provided with respect to the transaction
herein.
ARTICLE
IX - GENERAL
9.1 Subrogation
and Substitution
Quaneco
will convey, to the extent permitted, the Assets to Fellows Energy with full
rights of substitution and subrogation of Fellows Energy in and to all
covenants, representations and warranties by others heretofore given or made
in
respect of the Assets or any part thereof.
9.2 Public
Announcements
There
will be no public release of information of any kind by any of the Parties
with
respect to this Agreement, and the transactions herein provided for, unless
mutually approved by the Parties, which approval will not be unreasonably
withheld, or, if such release is required by the law, including necessary
disclosure under the security laws, then each of the Parties will receive a
copy
of such release at least twenty four (24) hours prior to its
dissemination.
9.3 Confidential
Information
In
the
event Fellows Energy does not close the transaction consistent with this
Agreement or chooses not to exercise the Option, Fellows Energy agrees to return
all information of any kind obtained by it from Quaneco, and its agents and
representatives, concerning the Assets or the Prospect Area, including
proprietary data obtained from drilling and testing coalbed methane xxxxx on
the
Option Lands (“Information”), and to keep any and all Information obtained by
Fellows Energy or its agents and representatives confidential for a period
of
two (2) years from March 12, 2004. The Information obtained by Fellows Energy
will not be considered confidential if:
a)
|
it
obtained such Information from the public domain other than as a
result of
a disclosure by Fellows Energy, or one of its agents or
representatives;
|
b)
|
such
Information became available to Fellows Energy on a non-confidential
basis
from a source other than Quaneco, or one of its agents or representatives,
where that source has represented to Fellows Energy it is entitled
to
disclose it; or
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c)
|
such
Information was known to Fellows Energy on a non-confidential basis
prior
to its disclosure to Fellows Energy by Quaneco, or one of its agents
or
representatives.
|
13
9.4 Severability
If,
and
to the extent that, any court of competent jurisdiction determines that it
is
impossible to construe any provision of this Agreement and consequently holds
that provision to be invalid, illegal or unenforceable, such holding will in
no
way affect the validity of the other provisions of this Agreement, which will
remain in full force and effect.
9.5 Further
Assurances
The
Parties will, from time to time, on and after Closing, at the request of the
other and without further consideration, execute and deliver all such other
and
additional instruments, notices, releases and other documents, and will do
all
such other acts and things as may be necessary to more fully assure the subject
matter of this Agreement, including the acquisition by Fellows Energy of the
Assets.
9.6 Assignment
Except
in
respect of an affiliate, none of the Parties will assign their rights and
obligations under this Agreement without obtaining the prior written consent
of
the other Parties. Where the assigning party wishes to assign its rights and
obligations to an affiliate, it will provide the other Parties with prior
written notice of such assignment. For this Paragraph, affiliate means a
company, partnership or other legal entity which owns, directly or indirectly,
fifty (50%) percent or more of a Party.
9.7 Arbitration
The
Parties hereby submit all controversies, claims and matters of difference in
any
way related to this Agreement or the performance or breach of the whole or
any
part hereof to arbitration to be conducted in English in Sheridan, Wyoming,
U.S.A., according to the Wyoming Uniform Arbitration Act, ________ ss ___-__-___
et
seq
(the
“Act”) and pursuant to the commercial rules and practices of the American
Arbitration Association (“AAA”) from time to time in force, except that if such
rules and practices will conflict with the Act or the Wyoming Rules of Civil
Procedure relating thereto (“RCP”) or any other provision of the law of the
State of Wyoming then in force, such rules and provisions will govern. In
addition, the Act and the RCP will supplement the AAA rules where no conflict
exists. Except as authorized hereunder, arbitration of any such controversy,
claim or matter of difference will be a condition precedent to any legal action
thereon. This submission and agreement to arbitration will be specifically
enforceable in accordance with the Act. Awards will be final and binding on
all
parties to the extent and in the manner provided by the RCP. Any party may
apply
to the Wyoming District Court having jurisdiction, for an appropriate judgement
entered thereon and execution issued therefor. At the election of any party,
said award may also be filed, and judgement entered thereon and execution issued
therefor, with the clerk of one or more other courts, in the United States
of
America, or elsewhere, having jurisdiction over the party against whom such
an
award is rendered or its property.
9.8 No
Partnership
The
Parties do not intend that this Agreement create (and it shall not be construed
to create) a joint venture, mining partnership, partnership or any type of
association. None of the Parties are authorized to act as agent or principal
for
another Party with respect to any matter except as specifically provided
herein.
9.9 Communications
Any
notice, direction or other instrument required or permitted to be given under
this Agreement by the Quaneco to Fellows Energy or Fellows Energy to Quaneco
must be in writing and must be given by delivering the same personally to the
following addresses:
a) if
to
Quaneco:
14
Quaneco,
L.L.C.
|
Quaneco,
L.L.C.
|
|
00000
Xxxxxxx Xxxx, Xxxxx 000
|
000 Xxxxx Xxxxxxxx | |
Xxxxxxxxxx
Xxxxx, XX 00000
|
Xxx
Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx
|
|
Xxxxxxxx
Xxxx, Xxxxxxxx 00000
|
||
Attn: Xx.
Xxxx Xxxxx
|
Attn:
Xx. Xxxxxx X’Xxxxxx
|
|
Fax: (000) 000-0000 |
Fax:
(000) 000-0000
|
|
b) | if to Fellows Energy: | |
Fellows
Energy
|
||
000
Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
|
||
Xxxxxxxxxx,
XX 00000
|
||
Attn:
Xxxxxx
X. Xxxxx
|
||
Fax:
|
A
party
may from time to time change its address for service herein by giving written
notice to the other party. Any notice may be served by personal service upon
a
party or by instantaneous electronic means to the number for notice hereunder.
Any notice given by service upon a party and any notice given by instantaneous
electronic means will be deemed to be given to and received by the addressee
on
the day (except Saturdays, Sundays, statutory holidays and days which the
offices of the addressee are closed for business) of service, provided it is
received within regular business hours. Any notice received outside of regular
business hours will be deemed received on the next regular business
day.
9.10 Counterpart
Execution
This
Agreement may be executed in counterpart and the counterparts together will
be
effective and binding on the Parties as if the same copy of this Agreement
was
executed by the Parties in each other's presence. Delivery of an executed
counterpart may be by facsimile, which facsimile will be replaced by the
delivery of three (3) executed originals as soon after signing as reasonably
possible.
15
IN
WITNESS WHEREOF the Parties have executed this Agreement as of the day and
year
first above written.
QUANECO,
L.L.C.
|
Per: /s/ Xxxx Xxxxx |
Name:
Xxxx Xxxxx
|
Title:
Managing Member
|
Per:
/s/
Xxxxx Xxxxxxxxx
|
Name: Xxxxx Xxxxxxxxx |
Title:
Managing Member
|
FELLOWS ENERGY |
Per: /s/ Xxxxxx X. Xxxxx |
Name:
Xxxxxx X. Xxxxx
|
Title:
President
|
This
is
the counterpart execution page to a Purchase and Option Agreement for the
Overthrust Prospect Area, Utah between Quaneco, L.L.C. and Fellows Energy,
Ltd.,
dated March 12, 2004.
16
This
is Schedule “A” attached to a Purchase and Option Agreement for the Overthrust
Prospect, Utah and Wyoming between Quaneco, L.L.C. and Fellows Energy, Ltd.,
dated March 12, 2004.
Option
Lands
Xxxxx
17
This
is Schedule “C” attached to a Purchase and Option Agreement for the Overthrust
Prospect, Utah and Wyoming between Quaneco, L.L.C. and Fellows Energy, Ltd.
dated March 12, 2004.
Map
of
Xxxxxxxx Xxxx
00
This
is Schedule “B” attached to a Purchase and Option Agreement for the Overthrust
Prospect, Utah and Wyoming between Quaneco, L.L.C. and Fellows Energy, Ltd.
dated March 12, 2004.
Royalties
19
This
is Schedule “D” attached to a Purchase and Option Agreement for the
Overthrust Prospect, Utah and Wyoming between Quaneco, L.L.C. and Fellows
Energy, Ltd. dated March 12, 2004.
Drilling
and Geological Requirements