SECOND AMENDMENT TO PURCHASE, SALE AND PARTICIPATION AGREEMENT
This Second Amendment to Purchase, Sale and Participation Agreement (this
"SECOND AMENDMENT"), is dated as of May 13, 2013, by and between 5 JAB, INC., a
corporation ("SELLER"), AND THREE FORKS, INC. a corporation ("BUYER"). Seller
and Buyer are sometimes referred to herein individually as a "PARTY" and
collectively as the "PARTIES."
RECITALS
WHEREAS, Buyer and Seller entered into that certain Purchase, Sale and
Participation Agreement, dated as of February 27, 2013 (the "ORIGINAL
AGREEMENT");
WHEREAS, Buyer and Seller entered into that certain First Amendment to
Purchase, Sale and Participation Agreement, dated as of April 30, 2013 (the
"FIRST AMENDMENT"). The Original Agreement, as amended by the First Amendment,
is herein called the "PURCHASE AGREEMENT" ; and ,
WHEREAS, Buyer and Seller desire to amend the Purchase Agreement as
provided herein. Capitalized terms used but not defined herein shall have the
meanings attributed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein and in the Purchase Agreement, Buyer and Seller hereby agree as
follows:
AGREEMENT AND AMENDMENT
1. CLOSING DATE. The Parties hereby extend the Closing Date described in
SECTION 2.8 of the Purchase Agreement to July 1, 2013. Notwithstanding
anything in the First Amendment to the contrary, the Effective Date for the
sale of the Properties described in SECTION 1 of the Purchase Agreement
shall be July 1, 2013, which is the same date as the Closing Date as
amended hereby.
2. DEFECT NOTICE PROVISIONS. Notwithstanding the extension of the Closing Date
under this Second Amendment, or anything in SECTION 12 of the Purchase
Agreement to the contrary, the Parties acknowledge that the deadline for
Buyer to notify Seller of Defects, being May 5, 2013, has passed.
3. The following is added as a new SECTION 2.10 to the Purchase Agreement:
2.10 DEPOSIT. Contemporaneous with the execution of this Second
Amendment, Buyer shall pay an amount equal to ten percent (10%) of the
unadjusted Purchase Price (the "Deposit") into an interest-bearing
joint signature account (the "Deposit Account") to be established by
Buyer and Seller at The Bank of Texas in Houston, Texas (the "Bank").
The Parties hereby agree to deliver any signatures and documentation
as necessary to permit the Bank to release the Deposit in accordance
with the purchase Agreement (as amended hereby). The Deposit shall
bear interest at the rate established by the Bank. If the Parties
consummate the transaction contemplated by the terms of the Purchase
Agreement, the Deposit plus the earned interest shall be applied to
the Purchase Price at Closing. If the Closing does not occur on the
Closing Date and Seller is
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not in material breach of any of its representations, warranties or
covenants under the Purchase Agreement, Seller shall retain the
Deposit plus the earned interest as liquidated damages. If Seller
materially breaches any of its representations, warranties or
covenants under the Purchase Agreement, the Deposit will be refunded,
without interest, to Buyer. THE PARTIES HEREBY ACKNOWLEDGE THAT IT
WOULD BE IMPOSSIBLE OR EXTREMELY DIFFICULT TO ASCERTAIN THE EXTENT OF
DAMAGES SELLER WOULD SUSTAIN BY THE PARTIES' FAILURE TO CONSUMMATE
THIS TRANSACTION, AND THAT THE AMOUNT OF THE DEPOSIT IS A FAIR AND
REASONABLE ESTIMATE OF SUCH DAMAGES UNDER THE CIRCUMSTANCES AND DOES
NOT CONSTITUTE A PENALTY.
4. REFERENCES. All references to the Purchase Agreement in any document,
instrument, agreement, or writing delivered pursuant to the Purchase
Agreement (as amended hereby) shall hereafter be deemed to refer to the
Purchase Agreement as amended hereby.
5. COUNTERPARTS. This Second Amendment may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all of such counterparts shall constitute for all
purposes one agreement. Any signature hereto delivered by a Party by
facsimile or e-mail transmission shall be deemed an original signature
hereto.
6. RATIFICATION. The terms of this Second Amendment supersede any conflicting
terms in the Purchase Agreement. In all other respects, Buyer and Seller
hereby adopt, ratify, and confirm the Purchase Agreement, as amended
hereby. All references to the Purchase Agreement in any assignment or other
instrument delivered in connection with the transaction(s) contemplated
hereby shall refer to the Purchase Agreement as so amended.
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the parties have executed this Second Amendment as of
the date first written above.
SELLER:
FIVE J.A.B., INC.
By:
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Xxxxx X. Xxxxxxxx, Xx.
President
BUYER:
THREE FORKS, INC.
By:
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Xxxxxx Xxxxxxx
Chairman and Counsel
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