Contract
Exhibit 10.18
LLC Membership Interest
Purchase Agreement
Purchase Agreement
This LLC Membership Interest Purchase Agreement (“Agreement”) is made on October
6, 2006, between Bach Services & Manufacturing Company, L.L.C., a Michigan limited liability
company (“Buyer”), Aurora Oil & Gas Corporation, a Utah corporation, whose address is 0000
Xxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000 (“Aurora”), and Xxxxxxx Xxxx and
Xxxxx Xxxx, whose address is 0000 X.X. 00 Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000
(“Sellers”).
Preliminary Statements
A. Sellers own all of the LLC membership interests (hereafter referred to as “Shares”
for convenience) issued by Kingsley Development Company, L.L.C., a Michigan limited liability
company, whose address is 0000 X.X. 00 Xxxxx, Xxxxx Xxxxxxxx, XX 00000 (“Kingsley”).
X. Xxxxxxxx owns real estate located at 0000 Xxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, that is
leased to Bach Enterprises, Inc., a Michigan corporation (“BEI”).
C. Buyer desires to acquire Kingsley by acquiring all of its outstanding LLC membership
interests from Sellers.
Agreed Terms
For mutual consideration, the sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Purchase and Sale of LLC. Subject to the terms and conditions set forth in this Agreement,
at the Closing Date, as defined in Section 4, Sellers shall sell, transfer and deliver to Buyer,
and Buyer shall purchase and accept from Sellers, all of the outstanding LLC membership interests
issued by Xxxxxxxx (Shares).
2. Liabilities.
a. General Non-Assumption of Liabilities. Except for mortgage indebtedness owed by Xxxxxxxx
on the real estate held by Xxxxxxxx, Buyer shall not
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assume, expressly or implicitly, pay, perform
or discharge any debts, liabilities or obligations of any nature of Xxxxxxxx. Except to the extent
provided in this Agreement, all the debts, liabilities and obligations of Xxxxxxxx arising prior to
Closing, whether fixed or contingent, accrued or unaccrued, known or unknown, shall continue to be
the responsibility of Sellers, which shall pay, perform and discharge them in accordance with their
terms, and nothing contained in this Agreement shall be construed in any fashion as imposing,
directly or indirectly, responsibility for any such debt, liability and obligation on Buyer.
b. Transfer Free of Liens. Except for the recorded mortgages associated with the real estate
held by Xxxxxxxx, the Shares and Xxxxxxxx itself shall be transferred to Buyer free and clear of
any and all claims, liens, mortgages, security interests, encumbrances, charges or other
restrictions of title or ownership.
3. Purchase Price and Method of Payments. The total purchase price for the Shares is
Sixty-Five Thousand and 00/100 Dollars ($65,000.00), which shall be payable in the form of wire
transfer at Closing.
4. The Closing. The parties agree that the effective date of Closing, shall be as of the
close of business on Friday, October 6, 2006. The Closing of the purchase and sale provided for
in this Agreement shall be held at the offices of Aurora, or at such other place as may be fixed by
mutual agreement of Buyer and Sellers, concurrently with the execution of this Agreement by
Sellers. The date and event of Closing are respectively referred to in this Agreement as the
“Closing Date” and “Closing.” At the Closing, Seller shall deliver to Buyer
Assignments of all LLC interests in Xxxxxxxx Development LLC in the form attached as Exhibit
4, and Aurora shall deliver to Sellers the Price payable as set forth in Section 3.
5. Representations and Warranties. In order to induce the parties to enter into this
Agreement, each of Aurora, Buyer and Sellers makes the following representations and warranties to
each other, each of which shall be deemed to be independently relied upon by the other party:
a. Organization and Qualification. Each of Xxxxxxxx, Buyer and Aurora is validly existing and
in good standing under the laws of its place of incorporation or LLC organization and qualified to
do business in the State of Michigan. Each of Buyer and Aurora have the requisite corporate power
and authority to execute and deliver this Agreement and to consummate the transactions contemplated
hereby.
b. No Violation. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not violate any provision of law, order, or regulation of any
governmental authority, the corporate charter, by-laws, or articles of organization or
incorporation of either party or constitute a default
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under any judgment, order or decree of any
court of governmental agency or instrumentality, or conflict or constitute a breach or a default
under any material agreement to which either is a party or by which it is bound.
x. Xxxxxxx’ Title. Sellers own good, valid and marketable title to the Shares issued by
Xxxxxxxx, free and clear of any and all mortgages, liens, encumbrances, charges, claims,
restrictions, pledges, security interests or impositions (except for the mortgages against the real
estate owned by Xxxxxxxx). None of the Shares are pledged, placed in escrow, encumbered, subject
to any lien or to any matured, unmatured or contingent claim. Except for rights of Buyer under
this Agreement and for certain rights waived by Xxxx Xxxxxx, there are no options, agreements,
contracts, security interests or other rights in existence to purchase or acquire now or in the
future, any of the Shares, whether now or subsequently authorized or issued.
d. Environmental Compliance. To the best of the Sellers’ knowledge as owners of Kingsely and
as owners of BEI (user of the Xxxxxxxx real estate), as of the Closing Date, (i) except as set
forth in Exhibit 5.d., the assets of Xxxxxxxx are not in material violation of any law
pertaining to the environment, and the Sellers have not been notified and are not aware of any
existing, pending, or threatened investigation or inquiry by any governmental authority pursuant to
any law pertaining to the environment, and are not subject to any remedial obligations under law
pertaining to the environment; (ii) the assets of Xxxxxxxx, are not subject to any private or
governmental lien, and Sellers have not received and are not aware of any judicial or
administrative notice or action, in each case relating to hazardous substances or environmental
liabilities or the violation of any laws pertaining to the environment; (iii) except as set forth
in Exhibit 5.d., underground storage tanks are not and have not been located on any
property owned and operated by Xxxxxxxx; (iv) except as set forth in Exhibit 5.d, no
hazardous substances are located on or have been generated, treated, stored, processed, or disposed
of on or released or discharged from (including discharges, whether direct, indirected, purposeful
dumps or accidental spills, into surface or subsurface waters and including any groundwater
contamination) the Xxxxxxxx assets contrary to law pertaining to the environment which would have,
individually or in the aggregate material adverse effect on the value, ownership or operation of
the Shares; (v) to the best of the Sellers’ knowledge, the current use of the Xxxxxxxx assets
complies with all applicable laws pertaining to the environment; and (vi) to the best of the
Sellers’ knowledge, Xxxxxxxx has obtained all permits or other authorizations required by any
governmental authority to use, occupy
or operate the Xxxxxxxx assets by reason of any applicable law pertaining to the environment.
x. Xxxxxxxx Real Estate. To the best of Sellers’ knowledge, as owners of Kingsely and as
owners of BEI (user of the Xxxxxxxx real estate), as of the Closing Date: (i) the real estate
owned by Xxxxxxxx is in compliance with all
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governmental zoning requirements; (ii) all improvements
are in compliance with all applicable legal requirements, including those pertaining to building
and the disabled, are in good repair and in good condition, ordinary wear and tear excepted, and
are free from latent and patent defects; (iii) no part of any improvement encroaches on any other
real property, and there are no buildings, structures, fixtures or other improvements primarily
situated on adjoining property which encroach on any part of the Xxxxxxxx real estate; (iv) the
real estate owned by Xxxxxxxx has direct vehicular access to a public road or has access to a
public road via a permanent, irrevocable, appurtenant easement benefiting such land and comprising
a part of the real property, is supplied with public or quasi-public utilities and other services
appropriate for the operation of the facilities located thereon and is not located within any flood
plain or area subject to wetlands regulation or any similar restriction.
f. Taxes. Xxxxxxxx has filed or caused to be filed on a timely basis all tax returns and all
reports with respect to taxes that are or were required to be filed under applicable tax laws.
Xxxxxxxx has paid or made provision for the payment of all taxes that have or may become due.
g. No Material Adverse Change. Since July 10, 2006, there has not been any material adverse
change in the business, operations, prospects, assets of Xxxxxxxx, and no event has occurred or
circumstance exists that may result in such material adverse change.
h. Legal Proceedings. There is no suit, action or other proceeding pending or threatened
against Sellers or Xxxxxxxx’x assets that would have a material adverse effect on the value of the
Shares. Neither Sellers nor Xxxxxxxx are a party or subject to any injunction, judgment, order,
notice of violation or decree, whether or not still subject to appeal, of any governmental
authority that would adversely affect the Shares or the Xxxxxxxx assets.
i. Brokers of Finders. Neither Sellers nor any of their representatives have incurred any
obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’
commissions or other similar payments in connection with the sale of the Shares or Xxxxxxxx’x
assets.
6. Indemnifications. Subsequent to closing:
a. Buyer’s Indemnity. Buyer and Aurora shall, and hereby do, defend, indemnify and save and
hold harmless Sellers from and against any and all claims, costs, judgments, expenses, requests for
compensation, contribution, remediation, liability of any type or nature whatsoever other than
consequential damages which may be incurred by Sellers from or after the Closing Date that are
attributable to or result from failure or breach of any representation or warranty made by
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Buyer or
Aurora in Section 5 hereof or in any document or instrument made and delivered by Buyer in
connection herewith.
b. Seller’s Indemnity. Sellers shall and hereby do defend, indemnify and save and hold
harmless Buyer and Aurora from and against any and all claims, costs, judgments, expenses, requests
for compensation, contribution, remediation, liability of any type or nature whatsoever other than
consequential damages which may be incurred by Buyer or Aurora from or after the Closing Date that
are attributable to or result from failure or breach of any representation or warranty made by
Sellers in Section 5 hereof or in any document or instrument made and delivered by Sellers in
connection with Section 5.
c. Neither party shall be entitled to indemnification from the other party under this Section
except, and to the extent that, the aggregate amount of the indemnified losses suffered by that
party exceeds Twenty Five Thousand Dollars ($25,000.00) (the “Indemnity Threshold”),
provided, however with respect to all cumulative claims, Sellers shall not be liable, by
reason of indemnification or otherwise, for aggregate losses or damages exceeding the Price set
forth in Section 3.
7. Conditions To Close. The obligations of either party to close pursuant to this Agreement
are subject to the following conditions having been met, or waived in writing by the other party,
at or prior to the Closing Date:
a. Representations and Warranties. The representations and warranties made in Section 5 shall
be true and correct in all material respects on and as of the Closing Date.
b. Delivery of Instruments of Conveyance of the Shares. Sellers shall have delivered to Buyer
the documents set forth in Section 4, and such other documentation as reasonably appropriate to
transfer title to the Shares to Buyer.
c. No Litigation. No investigation, suit, action or other proceedings shall be threatened or
pending before any court or governmental agency in which it is sought to restrain, prohibit or
obtain damages or other relief in connection with this Agreement or the consummation of the
transactions contemplated hereby.
d. Approvals and Consents. All necessary approvals and consents with respect to the
transactions contemplated hereby, the absence of which would have a material and adverse effect on
either party’s rights under this Agreement.
8. Further Assurances. Buyer and Sellers agree that, from time to time after Closing, and
upon reasonable request, they shall execute, acknowledge and deliver such other instruments as
reasonably may be required to more effectively
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transfer and vest in Buyer the Shares or property or
to otherwise carry out the terms and condition of this Agreement.
9. Buyer Performance Guaranty. Anything to the contrary notwithstanding, effective as of the
Closing, Aurora guarantees Buyer’s performance of this Agreement.
10. Disclaimer. Except as set forth in this Agreement: (i) Sellers make no representation or
warranty, express or implied (including those referred to in Section 2.312 of the Michigan Uniform
Commercial Code); (ii) Kingsley and the assets thereby held by it are hereby being transferred to
Buyer at the Closing are conveyed pursuant to this Agreement “AS IS WHERE IS” on the Closing Date,
and in their present condition, and Buyer shall rely upon its own examination thereof; and (iii)
Sellers make no warranty of merchantability, suitability or fitness for a particular purpose, or
quality, with respect to any of the tangible personal property being so transferred, or as to the
condition or workmanship thereof or the absence of any defects therein, whether latent or patent.
11. Proper Notices. All notices and other communications required or permitted under this
Agreement shall be deemed to have been given upon actual receipt by registered or certified mail,
postage prepaid, or otherwise delivered by hand or messenger, fax or telegram, to the parties at
their addresses listed on page 1, or to such other changed address as such party may have given by
notice.
12. Applicable Law. This Agreement and its validity, construction and performance shall be
governed in all respects by the laws of the State of Michigan.
13. Integration. This Agreement and all schedules, exhibits and agreements attached set forth
the entire agreements and understanding between the parties as to the subject matter hereof, and
supersedes all prior discussions, representations, amendments or understandings of every kind and
nature between them, except this Agreement shall not affect the terms of the prior letter of intent
signed by the parties in anticipation of this transaction.
14. Amendments. Any amendment, alteration, supplement, modification or waiver shall be
invalid unless it is set forth in writing, signed by the party intending to be bound thereby.
15. Severability. If any provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full
force and effect without the provision(s).
16. Assignability. This Agreement may be assigned by Buyer without the prior written consent
of Sellers; provided, Buyer shall continue to be liable for the performance of all obligations
pursuant to the Agreement.
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17. Benefit. This Agreement shall be binding upon and inure to the benefit of Buyer and
Seller and their successors and permitted assigns.
18. Captions. Captions contained in this Agreement are inserted for reference and in no way
define, limit, extend or describe the Agreement or the intent of any provision.
19. Pronouns. All pronouns and any variation thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the identity of the parties may require.
20. Construction of Agreement. The parties agree that this Agreement has been jointly drafted
and that neither party may assert an ambiguity in the construction of this Agreement against
another party because the other party allegedly drafted the allegedly ambiguous provision.
21. Enforcement of Agreement. Each party agrees to pay all of the other party’s costs and
expenses, including actual attorney’s fees, in enforcing the terms of this Agreement, including
collection of amount owed to a party.
22. Counterparts & Facsimile. This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the other parties by
facsimile. The parties agree that signatures on this Agreement, as well as any other documents to
be executed under this Agreement, may be delivered by facsimile in lieu of an original signature,
and the parties agree to treat facsimile signatures as original signatures and agree to be bound by
this provision.
[Remainder of Page Intentionally Left Blank]
[Signature Page to Follow]
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The parties have caused this Agreement to be executed as of the date and year first above
written.
Buyer: Bach Services &
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Seller: Xxxxx Xxxx | |
Manufacturing Company, L.L.C., a |
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Michigan limited liability company |
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By (signature): /s/ Xxxxxxx X. Xxxxxx
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By (signature): /s/ Xxxxx Xxxx | |
Print name: Xxxxxxx X. Xxxxxx |
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Title/: President of Aurora Oil & Gas |
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Corporation, Manager of Bach Services & |
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Manufacturing
Company, L.L.C._______ |
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Aurora: Aurora Oil & Gas Corporation
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Seller: Xxxxxxx Xxxx | |
a Utah corporation |
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By (signature): /s/ Xxxxxxx X. Xxxxxx
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By (Signature): /s/ Xxxxxxx Xxxx | |
Print name: Xxxxxxx X. Xxxxxx |
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Title/Position:
President_________________ |
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Exhibit 4
Assignment of LLC Interest in Xxxxxxxx Development Company, L.L.C.
See attached assignment forms for conveyance of Sellers’ interest in Xxxxxxxx Development
Company, L.L.C.
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Exhibit 5.d.
Disclosures Re: Environmental Matters
None.
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