THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT Trinity Bay, Redfish Reef, Fishers Reef, North Point Bolivar Fields in Galveston and chambers Counties, Texas
EXHIBIT
10.1
THIRD
AMENDMENT TO PURCHASE AND SALE AGREEMENT
Trinity
Bay, Redfish Reef, Fishers Reef, North Point Xxxxxxx
Xxxxxx
in
Galveston and xxxxxxxx Counties, Texas
This
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
(the
“Third Amendment”) is dated effective as of March 1, 2007, and is made by and
between Masters
Resources, LLC,
and
Masters
Oil & Gas, LLC,
both
Texas limited liability companies having their respective principal places
of
business at 0000 Xxxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (collectively,
“Masters”), and Tekoil
and Gas Gulf Coast, LLC,
a
Delaware limited liability company, having its principal place of business
at
0000 Xx. Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (“Buyer”) (Masters
and Buyer are sometimes called collectively the “parties” and individually
“party”).
RECITALS
On
November 13, 2006, Masters and Tekoil and Gas Corporation, a Delaware
corporation (“Original Buyer”), executed and delivered Purchase and Sale
Agreement, dated effective as of October 1, 2006, covering the Assets. On
December 29, 2006, Masters and Original Buyer executed and delivered that
certain First Amendment to Purchase and Sale Agreement also covering the Assets.
On February 8, 2007, the parties contemporaneously executed and delivered that
certain Second Amendment and that certain Assignment and Assumption Agreement
(the “Assignment”) by and between Buyer and Original Buyer (the Purchase and
Sale Agreement, the First Amendment to Purchase and Sale Agreement, and the
Second Amendment to the Purchase and Sale Agreement are herein collectively
referred to as the “Original Agreement”). The parties now desire to amend the
Original Agreement in certain respects. Accordingly, the parties agree as set
out in this Third Amendment. (Unless otherwise noted, defined terms used in
this
Third Amendment shall have the meanings set out in the Original
Agreement.)
I.
AMENDMENTS
A. Section
8.1 of the Original Agreement is deleted and the following is inserted in
lieu
thereof:
“8.1
|
Date,
Time and Place of Closing
|
Unless
the parties agree otherwise in writing and subject to the provisions in this
Agreement, the completion of the transaction contemplated by this Agreement
(the
“Closing”) will be held on or before March 16, 2007, at 10:00 a.m. Central
Standard Time (or such earlier date or time as the parties may agree). The
Closing will be held at the offices of Masters as set forth in the opening
paragraph of this Agreement (or such other place as the parties may agree).
In
the event that the Closing does not occur before the close of business at 5:00
p.m. on March 16, 2007, Masters shall have the right to terminate this Agreement
and to retain the Deposit.”
B. With
respect to Section 4.1 (A) of the Original Agreement, the Examination Period
applies to any due diligence being performed or to be performed on behalf of,
or
at the request of Buyer’s financing sources, and “February 23, 2007” is deleted
and “March 9, 2007” is inserted in lieu thereof. Except for the change of dates
set forth herein, the amendment set forth in Article I.B. of the First Amendment
to the Original Agreement is unchanged.
C. In
Section 9.3 of the Original Agreement, “March 2, 2007” is deleted and
“March
16, 2007”
is
inserted in lieu thereof.
D. Section
4.1 (D) of the Original Agreement is deleted and the following is inserted
in
lieu thereof:
“(i) Masters
will protect and hold Buyer harmless from and against any final and
non-appealable judgment rendered in that certain litigation matter styled
[insert
style of case]
(the
“Litigation”), including the costs and expenses of defending the same, and at
the closing the sum of $1 million shall be deposited by Masters and Buyer into
the Escrow Account, to guarantee the performance by Masters of this obligation
so that upon the dismissal of the Litigation without recourse against Masters,
or upon Masters’ payment of any judgment taken against it, or Masters’ payment
in settlement of the claims against it arising out of the Litigation, then
the
portion of the Purchase Price withheld by Buyer shall be paid to Masters; and
if
Masters fails to meet the obligation imposed by this section of this Agreement
so that claims are asserted against Buyer, then the portion of the Purchase
Price so withheld by Buyer shall be paid to Buyer; provided, however, the
payment to Buyer of such withheld portion of the Purchase Price shall not
release or affect in any manner, the obligations of Masters set out above in
this Section 4.1 (D) (i) or the rights of Buyer to exercise such remedies
against Masters as may be authorized by applicable law in the event Masters,
or
either of them, fail to perform their obligations set out in Section 4.1(D)
(i).1
(ii) Masters
will protect and hold Buyer harmless from and against any final and
non-appealable judgment rendered in any litigation brought by Xxxxxxx Energy
Partners II, L.P. (“Xxxxxxx”) based upon the claim asserted (or the facts giving
rise thereto) on behalf of Xxxxxxx in that certain letter dated February 7,
2007, from Xxxxxxxxx Xxxxxx at Xxxxx, Xxxxxxxx & XxXxxxxxx, LLP, addressed
to Masters (the “Xxxxxxx Claim”), including the costs and expenses of defending
the same, and at the closing a sum, to be stated in the separate agreement
referenced hereinbelow, shall be deposited by Masters into an Escrow Account,
to
guarantee the performance by Masters of this obligation so that upon the
dismissal with prejudice and without recourse against Masters, Buyer, its
permitted assigns and any of the Assets of any such litigation, or upon Masters’
payment of any judgment taken against it, or Masters’ payment in settlement of
all claims against it, Buyer, its permitted assigns and any of the Assets
arising out of the Xxxxxxx Claim, then the portion of the Purchase Price
withheld by Buyer shall be paid to Masters; and if Masters fails to meet the
obligation imposed by this section of this Agreement so that claims are asserted
against Buyer, its permitted assigns and any of the Assets, then the portion
of
the Purchase Price so withheld by Buyer shall be paid to Buyer; provided,
however, the payment to Buyer of such withheld portion of the Purchase Price
shall not release or affect in any manner, the obligations of Masters set out
above in this Section 4.1 (D) (ii) or the rights of Buyer to exercise such
remedies against Masters as may be authorized by applicable law in the event
Masters, or either of them, fail to perform their obligations set out in Section
4.1(D) (ii). The substance of this amendment is being documented in a separate
agreement between Masters and Buyer, and to the extent that there may be any
conflict between such agreement and this Agreement, that separate agreement
pertaining to the Xxxxxxx Claim shall govern and control over Section 4.1(D)
(ii) of the Original Agreement as amended herein.”
II. MISCELLANEOUS
A. To
the
extent any provision of the Original Agreement, conflicts with any provision
of
this Third Amendment, the provisions of this Third Amendment shall control
and
be used to determine the obligations of the Parties.
B. The
parties ratify confirm and adopt the Original Agreement as amended and
supplemented by this Third Amendment.
____________________
1 The parties acknowledge that the paragraph referred to as Section 4.1 (D) (i) in this Third Amendment was inadvertently deleted in that certain Second Amendment to the Purchase and Sale Agreement dated February 8, 2007, and thus is reinserted and incorporated as part of the Original Agreement.
1 The parties acknowledge that the paragraph referred to as Section 4.1 (D) (i) in this Third Amendment was inadvertently deleted in that certain Second Amendment to the Purchase and Sale Agreement dated February 8, 2007, and thus is reinserted and incorporated as part of the Original Agreement.
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C. Facsimile
delivery of this Third Amendment signed by each party to the other shall be
binding and effective the same as if an original signed copy has been delivered
by each party to the other. This Third Amendment may be executed in multiple
counterparts, each of which shall be considered an original and all of which
together shall constitute one and the same document.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Third Amendment as of March 1,
2007.
TEKOIL
AND GAS GULF COAST, LLC
By: |
Tekoil
& Gas Corporation,
|
Its Sole Member |
By: |
/s/
Xxxx Xxxxxxx
|
Name: Xxxx Xxxxxxx Title: President
|
MASTERS RESOURCES, LLC: | MASTERS OIL & GAS, LLC: | |||
By: | /s/ Xxxx X. Xxxxxx |
By:
|
/s/ Xxxx X. Xxxxxx | |
Name: Xxxx X. Xxxxxx |
Name: Xxxx X. Xxxxxx |
|||
Title: Manager | Title: Manager |
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