EXHIBIT 10.4
AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
This agreement for purchase and sale of real estate ("Agreement") made
this 28th day of April, 1999, between Pembrooke Calox, Inc., a Florida
corporation ("Purchaser"), Calox Corporation, an Indiana corporation
("Seller"), and Greka Energy Corporation (f/k/a Horizontal Ventures, Inc.), a
Colorado corporation ("HVI") .
R E C I T A L S:
WHEREAS, Seller owns that certain land located in the County of Monroe,
State of Indiana, legally described on Exhibit A attached hereto (the "Land"),
and also owns those certain other assets, rights, licenses, privileges,
benefits, profits, accounts and claims hereinafter more specifically
described, all of which (including the Land) taken together hereinafter
sometimes collectively referred to as the "Purchased Assets"; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Purchased Assets upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements, representations and warranties herein contained, the parties
hereto do hereby covenant and agree as follows:
1. PURCHASE AND SALE; PURCHASED ASSETS.
1.1 Seller agrees to sell and convey to Purchaser, and Purchaser agrees
to purchase from Seller, upon the terms and conditions hereinafter set forth,
the Purchased Assets, comprised of all of the lands, assets, rights,
licenses, privileges, benefits, profits, accounts and claims of Seller of
every kind, character and description now or hereafter existing on the Closing
Date (hereinafter defined), whether tangible or intangible, real, personal or
mixed, being or in way belonging or relating to the Land and their ownership
and operation, including the following:
A. The Land and all easements, tenements, hereditaments, rights,
licenses, privileges and appurtenances, whether or not of record, in any way
belonging or relating thereto and all limestone, rock, timber, mineral, oil,
gas and other hydrocarbon substances and all other natural resources of every
nature and description on or under the Land and all development, air, water
and other rights in any way belonging or relating to the Land (collectively,
the "Premises").
B. All right, title and interest in and to any streets, roads,
alleys or other public ways adjoining or serving the Land or any part thereof,
including any land lying in the bed of any street, road, alley or other public
way, open or proposed, and any strips, gores, culverts and rights-of-way
adjoining or serving the Land or any part thereof (including all riparian and
other rights in and to submerged lands).
C. All certificates, permits, licenses, franchises,
authorizations and approvals in any way belonging or relating to the
Premises or the ownership, use, access, occupancy, repair or maintenance
thereof or any part thereof, running to or in favor of any one or more
of Seller Parties (hereinafter defined) or the Premises and which
Purchaser hereafter elects in writing to accept.
D. All right, title and interest of any one or more of Seller
Parties of every kind, character and description in and to the
following: All surveys, title reports, engineering reports, drawings,
plans and specifications covering the Purchased Assets or any part
thereof; all geological, drilling, reserve, environmental, hazardous
waste and other files relating to the natural resources on or under the
Land and the actual or potential development thereof; and all books,
records and other files which have been or are used in connection with
the ownership or operation of the Purchased Assets or any part thereof
or the conduct of the business of any one or more of Seller Parties in
any way relating to the Purchased Assets or any part thereof.
2. PURCHASE PRICE.
2.1 Subject to prorations and adjustments as herein provided, the
total purchase price for the Purchased Assets shall be Five Million Seven
Hundred Thousand Dollars ($5,700,000.00) payable by the delivery at Closing of
Purchaser's non-recourse promissory note, the form of which is annexed hereto
as Exhibit B (the "Note"); provided, however, in the event that $3,850,000.00
is paid in one lump sum by July 31, 1999, the purchase price shall be
reduced to a total of $4,650,000.00 and the $800,000.00 balance thereof shall
be an unsecured obligation of Seller due in four $200,000.00 payments due on
or before March 31 in each of the years 2001, 2002, 2003 and 2004. In the
event that either the $5,700,000.00 or $3,850,000.00 is paid by November 1 or
July 31, 1999, as the case may be, the reasonable cost of the Policy as
defined is section 3.3 may be deducted from such payment.
3. TITLE; TITLE PAPERS.
3.1 Conveyance to Purchaser of title to the Premises shall be by
delivery of Seller's executed special warranty deed ("Seller's Deed"), in
recordable form, conveying good, insurable and marketable fee simple title to
the Premises subject only to the Permitted Encumbrances (hereinafter defined)
and real estate taxes not due and payable at Closing.
3.2 Conveyance to Purchaser of title to the remainder of the Purchased
Assets shall be by delivery of Seller's executed unconditional deeds,
assignments and other conveyance instruments as set forth herein with
covenants and general warranties of good and marketable title, free and clear
of all security interests, liens, charges, claims and encumbrances.
3.3 Seller, at Purchaser's expense, shall furnish to Purchaser at the
Closing a fully paid title insurance policy ("Policy") in the amount of the
Purchase Price issued by a title insurance company licensed to do business in
the state where the Land is located and satisfactory to Purchaser (such title
insurance company, as applicable, hereinafter sometimes referred to as the
"Title Company"), insuring Purchaser's fee title to the Premises free and
clear of all liens and encumbrances other than (i) the matters set forth on
Exhibit 3.3 attached hereto (the "Permitted Encumbrances"), and (ii) real
estate taxes not due and payable at the date thereof, which policy shall be in
form and substance, and contain such coverages, endorsements, and negotiated
additional changes and additional endorsements, as agreed upon by the Title
Company and Purchaser, dated concurrent with Closing. The Policy shall
provide "gap" protection.
4. CLOSING.
4.1 The consummation of the transaction contemplated hereunder
("Closing") shall take place on the date of execution of this Agreement.
5. SELLER'S AND PURCHASER'S REPRESENTATIONS, WARRANTIES AND
COVENANTS.
5.1 Seller represents and warrants as follows:
A. (i) None of Seller or any of its Related Parties
(hereinafter defined) (Seller and its Related Parties are herein
referred to collectively as the "Seller Parties", and individually as a
"Seller Party") is a party to, subject to or bound by (a) any provision
of a partnership or joint venture agreement, other instrument or
agreement, contract, license, permit, trust, custodianship, or other
restriction, or (b) any judgment, order, statute, rule, regulation,
writ, injunction or decree of any court, governmental body,
administrative agency or arbitrator, which would prevent or be violated
by, or under which there would be a default, acceleration, or right to
accelerate any maturity date or other obligation, or which would result
in creation of any lien, charge, claim or encumbrance upon any of the
Purchased Assets as a result of any of the items set forth below; and
(ii) no designation, registration or declaration with, or approval,
order, authorization or consent of, or payment of any premium, fee or
penalty to, any governmental authority or any other person or entity,
which has not been obtained, is required for or will arise out of any of
the items set forth below:
(1) the execution, delivery and performance of this
Agreement and any other agreements, obligations and instruments
referred to in or contemplated by this Agreement;
(2) the performance or satisfaction, subsequent to the
Closing, by Purchaser of any agreement or liability taken subject
to or accepted or assumed by Purchaser pursuant to this Agreement
or any document which is an Exhibit hereto or described or
referred to on any Schedule hereto;
(3) the deeding, conveyancing, assignment or other
transfer to Purchaser in accordance with this Agreement of the
Purchased Assets and any agreements and liabilities to which
Purchaser is taking subject or is accepting or assuming pursuant
to this Agreement or any document which is an Exhibit hereto or
described or referred to on any Schedule hereto; or
(4) the ownership or operation of the Purchased
Assets by
Purchaser subsequent to the Closing in the same or similar manner,
if so determined by Purchaser, of the ownership and operation of
the Purchased Assets by Seller prior to the Closing.
Seller's "Related Parties" shall mean collectively (i) any person or
entity owing or controlling Seller or owned or controlled by Seller, in
whole or in part, directly or indirectly, (ii) the joint venturers,
partners, directors, officers, shareholders, employees, agents
(including managing and leasing agents and their officers and employees)
and attorneys of Seller and of any such person or entity described in
(i), and (iii) the heirs, legal representatives, successors and assigns
of each and all of the foregoing.
B. Seller is a corporation duly created, validly existing and
in good standing under the laws of Indiana. Seller has all power and
authority to conduct its business as now being conducted and to own and
lease all of the properties owned and leased by it.
C. Seller and HVI each have the requisite power and authority
to enter into and perform the terms of this Agreement; HVI is the sole
shareholder of Seller; HVI and each of the other of Seller Parties has
the requisite power and authority to authorize Seller to enter into and
perform the terms of this Agreement to the extent such authorization is
required; the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly
authorized by all necessary parties and no other proceedings on the part
of any of Seller Parties are necessary in order to permit them to
consummate the transaction contemplated hereby. This Agreement has been
duly executed and delivered by Seller Parties that are parties or
signatories hereto and (assuming valid execution and delivery by
Purchaser) is a legal, valid and binding obligation of each Seller Party
enforceable against it in accordance with its terms.
5.2 The Seller covenants to warrant and forever defend the Purchaser
from and against all persons claiming under the Seller any interest in the
Purchased Assets.
5.3 Purchaser represents and warrants as follows:
A. Purchaser is a Florida corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
At Closing Purchaser or any applicable assignee or nominee will have all
power and authority to own and operate the Purchased Assets.
B. Purchaser has the requisite power and authority to enter
into and perform the terms of this Agreement. The execution and
delivery of this Agreement and the consummation of the transaction
contemplated hereby have been duly authorized by all necessary parties
and no proceedings on the part of Purchaser are necessary in order to
permit it to consummate the transaction contemplated hereby. This
Agreement has been duly executed and delivered by Purchaser and
(assuming valid execution and delivery by Seller) is a legal, valid and
binding obligation of Purchaser enforceable against it in accordance
with its terms.
5.4 All of the covenants, agreements, representations and warranties
of Purchaser and Seller contained in this Agreement shall be deemed made of
Closing, shall survive the Closing, and shall not be deemed to merge upon the
delivery and acceptance of Seller's Deed or any other conveyance document.
6. CLOSING; CLOSING DOCUMENTS.
6.1 At the Closing, Seller shall deliver to Purchaser the following:
A. The ALTA Owner's Policy of title insurance in form and
content required by Paragraph 3.
B. Seller's duly executed Seller's Deed in recordable form
conveying to Purchaser fee simple title to the Premises in the condition
required by Paragraph 3.1.
C. Seller's duly executed bills of sale, assignments,
conveyances and/or deeds referred to in Paragraph 3.2.
D. Seller's duly executed assignment of all certificates,
permits, licenses, franchises, authorizations and approvals if any exist
which Purchaser desires to have assigned to it, and all of Seller's
rights thereunder, together with the originals thereof.
E. Seller's duly executed closing statement in accordance
herewith.
F. A certificate that Seller is not a "foreign person" as
defined in the Federal Foreign Investment in Real Property Tax Act of 1980 and
the 1984 Tax Reform Act, as amended, in a form complying with federal tax law.
G. All applicable state, county and municipal transfer
declarations, certificates respecting payment of water and sewer bills and any
other governmental furnished services or facilities, and any other required
governmental certificates.
H. The Escrow Agreement, Special Warranty Deed Deposit
Agreement, Assignment and Assumption of Rights and Obligations, and all other
agreements and documents required to be delivered by Seller under this
Agreement if not previously delivered.
In addition to the obligations required to be performed hereunder by Seller at
Closing, from time to time subsequent to the Closing Seller shall perform such
other acts, and shall execute, acknowledge and deliver such other agreements
and documents as Purchaser reasonably may request in order to effectuate the
consummation of the transaction contemplated herein or as may be needed to
vest good, insurable and marketable title to the Purchased Assets in Purchaser
or its assignee or nominee.
6.2 At the Closing, Purchaser shall deliver to Seller the following:
A. The Note.
B. The Mortgage Agreement in the form attached as Exhibit C.
C. Purchaser's duly executed closing statement in accordance
herewith.
D. Corporate Special Warranty Deed, Assignment and Assumption
of Rights and Obligations, Escrow Agreement, Special Warranty Deed
Deposit Agreement and any other documents required to be delivered by
Purchaser under this Agreement if not previously delivered.
In addition to the obligations required to be performed hereunder by Purchaser
at Closing, from time to time subsequent to the Closing Purchaser shall
perform such other acts, and shall execute, acknowledge and deliver such other
agreements and documents as Seller reasonably may request in order to
effectuate the consummation of the transaction contemplated herein.
7. CLOSING PRORATIONS.
7.1 Prorations and adjustments to the Closing Payment, as described in
Paragraph 2.1, payable hereunder shall be made between Seller and Purchaser
and shall be prorated on a per diem basis as of midnight of the day preceding
the Closing Date, such time on such day being the "Proration Date".
7.2 Real property taxes for the then (at the Proration Date) current
tax fiscal year and any installment of real property taxes for any prior tax
fiscal year not yet due and payable shall be prorated in proportion to the
portions of such tax fiscal years elapsed prior to the Proration Date and
remaining after the Proration Date.
7.3 Purchaser shall be responsible for the payment of all assessments
made after the Proration Date or imposed against the Premises or any part
thereof for governmental improvements affecting the Premises not substantially
completed or installed prior to the Proration Date (subject to Seller's
warranties and representations set forth in Paragraph 5.1) and Seller shall
provide to Purchaser a proration credit and be responsible for all of same for
improvements substantially completed or installed prior to the Proration Date,
and each shall indemnify, defend, exonerate and save the other and its Related
Parties harmless from any claims therefor or any liability, loss, cost or
expense arising therefrom.
7.4 Seller shall pay all sales, use, excise and other similar taxes
and all transfer taxes, conveyance taxes, documentary stamp taxes, deed taxes
and other similar taxes. Purchaser shall pay recording charges in respect of
the recordation of Seller's Deed.
7.5 Utilities, if any, payable by Seller, shall be prorated. Seller
shall endeavor to obtain meter readings as of the Proration Date, and if such
readings are obtained, there shall be no proration of such items and Seller
shall pay the bills therefor for the period to the Proration Date, and
Purchaser shall pay the bills therefor for the period subsequent to the
Proration Date as and when rendered. If Seller is unable to obtain meter
readings as of the Proration Date, utilities shall be prorated at the
Proration Date based upon the most recent utility bills, adjusted for
seasonality, and reprorated upon issuance of the actual bills.
7.6 Prepaid and unpaid current expenses and charges respecting
expenses incurred in the operation of the Premises shall be prorated at and as
of the Proration Date. (However, fees paid by Seller with respect to
certificates, permits, licenses, franchises, authorizations and approvals
assigned by Seller to Purchaser at the Closing shall not be prorated, but
shall be paid for and assumed entirely by Seller.)
8. BROKER.
8.1 Seller and Purchaser each represent and warrant to the other that
they know of no brokers or other persons or entities who have been
instrumental in submitting or showing the Premises to, or procuring Purchaser.
9. NOTICE.
9.1 All notices to be given hereunder shall be hand delivered or sent
by registered or certified mail, return receipt requested, with postage
prepaid, or by Federal Express or other comparable nationwide overnight air
courier service to the parties at the following addresses (or to such other or
further addresses as the parties may hereafter designate by like notice
similarly sent):
A. If intended for Purchaser:
Pembrooke Calox, Inc.
00000 Xxxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
with a simultaneous copy to:
Hofheimer Gartlir & Gross, LLP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax (000) 000-0000
B. If intended for Seller:
Calox, Inc.
c/o Greka Energy Corporation
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax (000) 000-0000
with a simultaneous copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Fax (000) 000-0000
C. If intended for HVI:
Greka Energy Corporation
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax (000) 000-0000
with a simultaneous copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Fax (000) 000-0000
Any notice given hereunder shall be deemed given on the date and at the time
of delivery (or the first business day thereafter if delivered on Saturday,
Sunday or legal holiday) to any of said addresses. The inability to deliver
notice because of changed address of which no notice was given hereunder,
rejection or any refusal to accept any notice shall be deemed to be the
receipt of the notice as of the date of such inability to deliver, rejection
or refusal to accept. Any party's above-named attorney may give an effective
and binding notice in accordance with this Paragraph 9.1 on behalf of such
party. Also, each notice shall be effective and binding even though the
above-described copy of such notice is not received by the above-described
parties to whom only a copy of such notice is to be transmitted (i.e., the
above-named second party and, as concerns Purchaser, also the above-named
third party to whom only a copy of such notice is to be transmitted).
10. CAPTIONS OR HEADINGS.
10.1 The captions or headings of the Paragraphs of this Agreement are
for convenience only, and shall not control or affect the meaning or
construction of any of the terms or provisions of this Agreement.
11. GOVERNMENTAL FILINGS.
11.1 Purchaser on the one hand and Seller on the other hand shall use
their best efforts to:
A. promptly and timely file all filings, reports, certificates
and applications required to carry out the transactions contemplated by
this Agreement or to consummate the transactions contemplated hereby
required, if at all, by (i) the federal securities laws, or (ii) the
United States or any commission, agency or department thereof; and
B. promptly and timely prepare, file and prosecute all filings,
reports, certificates and applications required by the State of Indiana
or any commission, agency or department thereof.
12. INTENTIONALLY OMITTED.
13. INDEMNITY.
13.1 Notwithstanding the absence in this Agreement of any particular or
specific representation, warranty or covenant of the Seller, it being the
intention of the parties to abbreviate this Agreement to the greatest extent
possible, Seller does hereby agree to indemnify, defend and hold harmless
Purchaser and any person or entity affiliated with or owning or controlling,
in whole or in part, directly or indirectly, Purchaser; the joint venturers,
partners, trustees, officers, directors, shareholders, employees, agents and
attorneys at any time and from time to time of any of the foregoing; and the
heirs, legal representatives, successors and assigns of each and all of the
foregoing (collectively "Purchaser Related Parties") of and from any and all
claims, demands, damages, losses, injuries, liabilities, penalties, costs,
expenses (including reasonable attorneys' fees), suits, actions,
investigations, judgments and fees which may be imposed upon, incurred or
suffered by or asserted against any one or more of Purchaser or Purchaser
Related Parties arising out of or in connection with any one or more of the
following:
A. any act or omission in, on or about or relating to or in
connection with, the Premises and its ownership, use and occupancy
before Closing;
B. any use, occupancy, ownership or operation of any of the
Purchased Assets or any occurrence in, on or about the Premises before
Closing;
C. any accident, injury (including death) or damage, regardless
of the cause thereof, to any person or property occurring in, on or
about the Premises before Closing;
D. any failure to perform or comply with any agreements,
obligations or undertakings on Seller's part to be performed before
Closing;
E. any income, sales, use, excise, receipts or other tax,
including any transferee liability, (i) with respect to the use,
ownership, occupation and operation of any of the Purchased Assets
before Closing, (ii) with respect to any agreement or obligation of
Seller under this Agreement to pay same, and (iii) with respect to any
income or other gain or any other governmental charge, whether
incidental to this transaction or otherwise; and
F. any breach of any representation, warranty, covenant or
agreement made by Seller in this Agreement.
13.2 Notwithstanding the absence in this Agreement of any particular or
specific representation, warranty or covenant of the Purchaser, it being the
intention of the parties to abbreviate this Agreement to the greatest extent
possible, Purchaser does hereby agree to indemnify, defend and hold harmless
Seller and any person or entity affiliated with or owning or controlling, in
whole or in part, directly or indirectly, Purchaser; the joint venturers,
partners, trustees, officers, directors, shareholders, employees, agents and
attorneys at any time and from time to time of any of the foregoing; and the
heirs, legal representatives, successors and assigns of each and all of the
foregoing (collectively "Seller Related Parties") of and from any and all
claims, demands, damages, losses, injuries, liabilities, penalties, costs,
expenses (including reasonable attorneys' fees), suits, actions,
investigations, judgments and fees which may be imposed upon, incurred or
suffered by or asserted against any one or more of Purchaser or Purchaser
Related Parties arising out of or in connection with any one or more of the
following:
A. any act or omission in, on or about or relating to or in
connection with, the Premises and its ownership, use and occupancy on or
after the Closing Date;
B. any use, occupancy, ownership or operation of any of the
Purchased Assets or any occurrence in, on or about the Premises on or
after the Closing Date;
C. any accident, injury (including death) or damage, regardless
of the cause thereof, to any person or property occurring in, on or
about the Premises on or after the Closing Date;
D. any failure to perform or comply with any agreements,
obligations or undertakings on Purchaser's part to be performed after
the Closing Date; and.
E. any breach of any representation, warranty, covenant or
agreement made by Purchaser in this Agreement.
14. MISCELLANEOUS.
14.1 This Agreement, and the Exhibits and Schedules attached hereto
embody the entire agreement between the parties in connection with the
purchase of the Purchased Assets and the Premises transaction and there are
no oral or parol agreements, representations or inducements existing between
the parties relating to this transaction which are not expressly set forth
herein and covered hereby; provided, however that expressly surviving this
Agreement and the transactions contemplated hereby are the respective rights
and obligations set forth in Section 2(d) and the last sentence of Section 9
of that certain Settlement Agreement dated as of February 1, 1999 relating to
Pembrooke Holdings Corp. v. International Publishing Holding, Supreme Court of
New York, County of New York, Index No. 6035621/98; and this Agreement may not
be modified except by a written agreement signed by all of the parties.
14.2 This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their respective heirs, legal representatives, successors,
and assigns, except that no party hereto may assign or transfer any of its
interest hereunder without the express written consent of the other party
hereto; provided, however, Purchaser may assign its interest in this Agreement
simultaneously with the Closing hereunder and/or identify a nominee to receive
its conveyances, in which event Seller's Deed, bills of sale, assignments and
all other conveyances (and the acceptances thereof), documents, title
insurance policy and survey certifications otherwise herein to be conveyed or
provided to Purchaser and/or executed by Purchaser as applicable, shall be
conveyed and provided to Purchaser's assignee or nominee and/or executed by
Purchaser's assignee or nominee, as applicable.
14.3 All of the covenants, agreements, obligations, liabilities,
indemnification undertakings, representations and warranties of Seller in this
Agreement shall be deemed to be joint and several covenants, agreements,
obligations, liabilities, indemnification undertakings, representations and
warranties of Seller and HVI, and may be enforced against any one or more of
them concurrently or successively, in such order as Purchaser may determine.
14.4 No written waiver by any party at any time of any breach of any
provision of this Agreement shall be deemed a waiver of any breach of any
other provision herein or a consent to any subsequent breach of the same or
any other provision. If any action by any party shall require the consent or
approval of another party, such consent or approval of such action on any
occasion shall not be deemed a consent to or approval of such action on any
subsequent occasion or a consent to or approval of any other action on the
same or any subsequent occasion.
14.5 This Agreement shall not be recorded without the written consent of
the parties hereto; however, upon the request of any one party, the other
parties shall join in the execution of a memorandum of this Agreement for the
purposes of recordation.
14.6 This Agreement shall be governed by and interpreted in accordance
with the local laws of the State of New York applicable to contracts made and
to be performed entirely within such State.
14.7 The parties hereto irrevocably: (a) agree that any suit, action
or other legal proceeding arising out of this Agreement and the transactions
contemplated hereby, including the related Note, Mortgage Agreement, and other
agreements delivered at closing related to the purchase and sale of the
Purchased Assets, other than any suit, action or other proceeding seeking
foreclosure under the Mortgage Agreement or any action which requires
jurisdiction over the escrow agent under the Escrow Agreement delivered at
closing hereunder, may be brought in the courts of the State of New York or
the courts of the United States located in New York County, New York, (b)
consent to the jurisdiction of each such court in any such suit, action or
proceeding, (c) waive any objection which they, or any of them, may have to
the laying of venue of any such suit, action or proceeding in any of such
courts except as otherwise provided herein, and (d) waive the right to a trial
by jury in any such suit, action or other legal proceeding. With respect to
all matters arising in connection with this Agreement and the transactions
contemplated hereby, as its agent for service of process Purchaser hereby
appoints Hofheimer Gartlir & Gross, LLP and Seller and HVI each hereby appoint
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP.
14.8 For the purposes of this Agreement, the terms "include",
"including" and similar terms shall be construed in all cases as if followed
by the phrase "without being limited to". Also, for the purposes of this
Agreement, the phrases "to the best knowledge of any Seller Party", "to the
best knowledge of Seller", "to the knowledge of any Seller Party", "to the
knowledge of Seller" and similar phrases shall imply a reasonable
investigation by each applicable Seller Party and Seller and its agents.
14.9 This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that it may have
been prepared primarily by counsel for one of the parties, it being recognized
that both Purchaser and Seller have contributed substantially and materially
to the preparation of this Agreement.
14.10 This Agreement may be executed in any number of original
counterparts, all of which evidence only one agreement and only one of which
need be produced for any purpose.
IN WITNESS WHEREOF the undersigned have executed this Agreement as of
the day and year first above set forth.
SELLER PURCHASER
CALOX CORPORATION, an Indiana corporation PEMBROOKE CALOX, INC., a Florida
corporation
By:____________________________________ By:_____________________________
Its:___________________________________ Its: President
HVI:
GREKA ENERGY CORPORATION (f/k/a HORIZONTAL VENTURES, INC.), a Colorado
corporation
By:
Its:
EXHIBITS
A Legal Description
3.3 Permitted Encumbrances
