PURCHASE AND SALE AGREEMENT
dated effective as of December 31, 2005
between
Hallador Petroleum Company,
as Purchaser
and
Yorktown Energy Partners II, L.P.,
as Seller
relating to the purchase and sale
of
limited partnership interests
in
Savoy Energy Limited Partnership
ARTICLE I DEFINITIONS 1
1.1 Definitions 1
1.2 Other Defined Terms 2
ARTICLE II PURCHASE AND SALE 2
2.1 Purchase and Sale of the Partnership Interests 2
2.2 Consideration 2
2.3 Transactions to be Effected at the Closing 3
2.4 Closing Date 3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 3
3.1 Authorization 3
3.2 No Conflicts 3
3.3 Ownership of Partnership Interest 4
3.4 No Brokers or Finders 4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER 4
4.1 Authority and Enforceability 4
4.2 No Conflicts; Authorizations 4
4.3 Purchase for Investment 5
4.4 Brokers or Finders 5
ARTICLE V CONDITIONS TO CLOSING 5
5.1 Conditions to Obligations of Purchaser 5
5.2 Conditions to Obligations of Seller 6
ARTICLE VI POST-CLOSING COVENANTS 6
6.1 Post-Closing Notifications 6
6.2 Certain Tax Matters 6
6.3 Further Assurances 7
ARTICLE VII TERMINATION 7
7.1 Termination 7
7.2 Effect of Termination 7
7.3 Remedies 7
ARTICLE VIII INDEMNIFICATION 8
8.1 Survival. 8
8.2 Indemnification 8
8.3 Notice and Opportunity to Defend 8
8.4 Contingent Claims 9
8.5 Effect of Investigation 9
8.6 Tax Treatment of Indemnification Payments 9
8.7 Other Rights and Remedies Not Affected 9
ARTICLE IX MISCELLANEOUS 10
9.1 Notices 10
9.2 Amendments and Waivers 11
9.3 Expenses 11
9.4 Successors and Assigns 11
9.5 Governing Law 11
9.6 Consent to Jurisdiction 11
9.7 Counterparts 12
9.8 Third Party Beneficiaries 12
9.9 Entire Agreement 12
9.10 Captions 12
9.11 Severability 12
9.12 Interpretation 12
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (the "'Agreement") is dated effective
as of December 31, 2005, and entered into by and between Hallador Petroleum
Company, a Colorado corporation ("Purchaser"), and Yorktown Energy Partners II,
L.P., a Delaware limited partnership ("Seller").
RECITALS:
A. As of the date of this Agreement, Seller owns a 36.8790% limited
partnership interest in Savoy Energy Limited Partnership, a Michigan limited
partnership (the "Company").
B. Upon the terms and subject to the conditions set forth in this
Agreement, (i) Purchaser wishes to purchase, and Seller wishes to sell to
Purchaser, a 32.0% limited partnership interest in the Company (the
"Partnership Interest"). Following such purchase and sale, Purchaser will
hold a 32.0% limited partnership interest in the Company, and Seller will
continue to hold a 4.8790% limited partnership interest in the Company.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations and warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
Article I
DEFINITIONS
1.1 Definitions. When used in this Agreement, the following terms
shall have the meanings assigned to them in this Section 1.1, or in the
applicable Section of this Agreement to which reference is made in this
Section 1.1.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling, controlled by or under common
control with such specified Person.
"Business Day" means a day other than a Saturday, Sunday or other day
on which banks located in New York City are authorized or required by Law to
close.
"Governmental Entity" means any entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to United States federal, state, local, or municipal government, foreign,
international, multinational or other government, including any department,
commission, board, agency, bureau, subdivision, instrumentality, official or
other regulatory, administrative or judicial authority thereof.
"Law" means any statute, law (including common law), constitution,
treaty, ordinance, code, order, decree, judgment, rule, regulation and any
other binding requirement or determination of any Governmental Entity.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, adverse claim or other encumbrance in
respect of such property or asset.
"Losses" means any and all losses, liabilities, claims, demands, fines,
judgments, orders, settlements, damages and any related expenses (including,
without limitation, legal, accounting, consulting and investigation expenses
and litigation costs).
"Order" means any award, injunction, judgment, decree, order, ruling,
subpoena or verdict or other decision issued, promulgated or entered by or
with any Governmental Entity of competent jurisdiction.
"Person" means an individual, a corporation, a partnership, a limited
liability company, a trust, an unincorporated association, a Governmental
Entity or any agency, instrumentality or political subdivision of a
Governmental Entity, or any other entity or body.
1.2 Other Defined Terms. The following terms have the meanings
assigned to such terms in the Sections of the Agreement set forth below:
Acquisition 2.1
Agreement Preamble
Amendment 5.1(e)
Asserted Liability 8.3(a)
Closing 2.4
Closing Date 2.4
Company Recitals
Indemnitee 8.3(a)
Indemnifying Party 8.3(a)
Partnership Agreement 3.3
Partnership Interest Recitals
Purchase Price 2.1
Seller Preamble
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale of the Partnership Interests. Upon the terms and
subject to the conditions of this Agreement, at the Closing, Seller shall sell
to Purchaser, and Purchaser shall purchase from Seller, the Partnership
Interest free and clear of all Liens. The purchase and sale of the Partnership
Interest is referred to in this Agreement as the "Acquisition."
2.2 Consideration. At the Closing, Purchaser shall pay to Seller an
amount equal to U.S. $4,164,972 by wire transfer of immediately available funds
to the bank account set forth on Schedule 2.2.
2.3 Transactions to be Effected at the Closing.
(a) At the Closing Purchaser shall deliver to Seller all
documents, instruments or certificates required to be delivered by Purchaser to
Seller at the Closing pursuant to this Agreement.
(b) At the Closing Seller shall deliver to Purchaser (i) all
certificates representing or evidencing the Partnership Interests, if any,
(ii) all other documents and instruments necessary to vest in Purchaser all of
Seller's right, title and interest in and to the Partnership Interest, free and
clear of all Liens, and (iii) all other documents, instruments or certificates
required to be delivered by Seller to Purchaser at the Closing pursuant to this
Agreement.
2.4 Closing Date. The closing of the Acquisition (the "Closing") shall
take place at the offices of Morgan, Lewis & Bockius LLP, 300 S. Grand Avenue,
Suite 2200, Los Angeles, California 90071, effective as of 11:59:59 p.m. Central
Standard Time on December 31, 2005, unless another time, date or place is agreed
to in writing by the parties. The date upon which the Closing occurs is herein
referred to as the "Closing Date."
Article III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents, warrants and covenants to Purchaser as of the date
hereof and as of the Closing Date that:
3.1 Authorization. Seller has all requisite power and authority to
execute and deliver this Agreement, to perform Seller's obligations hereunder
and to consummate the transactions contemplated hereby. Seller has the full
power to exchange, assign, transfer and deliver the Partnership Interest it
currently retains to Purchaser in accordance with the terms of this Agreement,
free and clear of all Liens. This Agreement has been duly executed and
delivered by Seller and, assuming the due authorization, execution and
delivery hereof by Purchaser, constitutes the valid and binding obligation
of Seller enforceable against it in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar Laws affecting or relating to creditors' rights
generally, and (b)by the availability of injunctive relief and other
equitable remedies.
3.2 No Conflicts. The execution and delivery by Seller of this Agreement
does not, and the consummation of the Acquisition by Seller will not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the charter, bylaws, partnership agreement or
similar organization documents of Seller;
(b) conflict with or result in a material violation or breach of
any Law or Order applicable to Seller or any of Seller's assets and properties
or require any consent or approval of or any notice or filing with any
Governmental Entity or other third party; or
(c) conflict with or result in a breach or violation of, or
default under, or give rise to any right of acceleration or termination of,
any of the terms, conditions or provisions of, any note, bond, lease, license,
agreement or other instrument or obligation to which Seller is a party or by
which Seller's assets or properties are bound.
3.3 Ownership of Partnership Interest. Seller is the sole record and
beneficial owner of the Partnership Interest, free and clear of all Liens.
Except for the Second Amended and Restated Agreement of Limited Partnership of
the Company dated February 1, 2003 (the "Partnership Agreement"), Seller is not
a party to any voting trust, proxy, or other agreement or understanding between
or among any persons that affects or relates to the voting or giving of written
consent with respect to the Company.
3.4 No Brokers or Finders. Seller has not incurred and will not incur,
directly or indirectly, as a result of any action taken or permitted to be
taken by or on behalf of Seller, any liability for brokerage or finders' fees or
agents' commissions or similar charges in connection with the execution and
performance of the transactions contemplated by this Agreement.
Article IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants as of the date hereof and as of the
Closing Date:
4.1 Authority and Enforceability. Purchaser has the requisite power
and authority to enter into this Agreement and to consummate the Acquisition.
The execution and delivery of this Agreement and the consummation of the
Acquisition have been duly authorized by all necessary action on the part of
Purchaser. This Agreement has been duly executed and delivered by Purchaser
and, assuming due authorization, execution and delivery by Seller,
constitutes the valid and binding obligation of Purchaser, enforceable against
it in accordance with its terms, except as such enforceability may be limited
by (a) bankruptcy, insolvency, reorganization, moratorium or other similar
Laws affecting or relating to creditors' rights generally, and (b) the
availability of injunctive relief and other equitable remedies.
4.2 No Conflicts; Authorizations. The execution and delivery of this
Agreement by Purchaser does not, and the consummation of the Acquisition by
Purchaser will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the charter, bylaws, partnership
agreement or similar organization documents of Purchaser;
(b) conflict with or result in a material violation or breach of
any Law or Order applicable to Purchaser or any of Purchaser's assets and
properties or require any consent or approval of or any notice or filing with
any Governmental Entity or other third party; or
(c) conflict with or result in a breach or violation of, or
default under, or give rise to any right of acceleration or termination of,
any of the terms, conditions or provisions of, any note, bond, lease, license,
agreement or other instrument or obligation to which Purchaser is a party or
by which Purchaser's assets or properties are bound.
4.3 Purchase for Investment. The Partnership Interest is being
acquired for investment only and not with a view to any public distribution
thereof. Purchaser shall not offer to sell or otherwise dispose of, or sell
or otherwise dispose of, the Shares so acquired by it in violation of any of
the registration requirements of the Securities Act of 1933.
4.4 Brokers or Finders. Purchaser has not incurred and will not incur,
directly or indirectly, any liability for any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this
Agreement.
Article V
CONDITIONS TO CLOSING
The obligations of Purchaser and Seller to effect the transactions
contemplated hereby are subject to the satisfaction at or prior to the Closing
of the following conditions:
5.1 Conditions to Obligations of Purchaser.
(a) Representations and Warranties of Seller. The
representations and warranties of Seller shall be true and correct on the
date hereof and on and as of the Closing Date, as though made on and as of
the Closing Date.
(b) Agreements and Covenants. Seller shall have performed and
complied with each agreement, covenant and obligation required by it pursuant
to this Agreement to be so performed or complied with by Seller at or before
the Closing.
(c) Closing Certificate. Seller shall have delivered to
Purchaser a certificate, dated the Closing Date and executed by an authorized
officer or manager of Seller, as applicable, certifying as to the fulfillment
of the conditions specified in Sections 5.1(a) and 5.1(b).
(d) Secretary's Certificate. The Secretary of the Company shall
have delivered to Purchaser at the Closing a certificate stating that all
partner approvals necessary to consummate the transactions contemplated by
this Agreement have been obtained and attaching thereto: (i) a copy of the
Partnership Agreement, certified by the Secretary of the Company as the true
and correct copy of the Partnership Agreement as of the Closing; and (ii) a
copy of the consent of the partners of the Company, evidencing the approval
of this Agreement and the transactions contemplated hereby, including
appointment of Purchaser's representation to the Executive Committee of
the Company.
(e) Amendment to Partnership Agreement. A copy of an amendment
to the Partnership Agreement in the form attached hereto as Exhibit A (the
"Amendment"), duly executed by the requisite partners of the Company.
(f) Third-Party Consents. Any and all consents or waivers
required from third parties relating to this Agreement or any of the
transactions contemplated hereby shall have been obtained.
(g) No Actions or Proceedings. No claim, action, suit,
investigation or proceeding shall be pending or threatened before any court or
governmental agency which presents a substantial risk of the restraint or
prohibition of the transactions contemplated by this Agreement.
5.2 Conditions to Obligations of Seller.
(a) Representations, Warranties and Agreements of Purchaser.
The representations and warranties of Purchaser contained in this Agreement
shall be true and correct on the date hereof and on and as of the Closing
Date, as though made on and as of the Closing Date.
(b) Agreements and Covenants. Purchaser shall have performed
and complied in all material respects with each agreement, covenant and
obligation required by this Agreement to be so performed or complied with
by Purchaser at or before the Closing.
(c) Closing Certificate. Purchaser shall have delivered to
Seller a certificate, dated the Closing Date and executed by an authorized
officer of Purchaser, certifying as to the fulfillment of the conditions
specified in Sections 5.2(a) and 5.1(b).
(d) Amendment to Partnership Agreement. A copy of the Amendment,
duly executed by Purchaser.
(e) Third-Party Consents. Any and all consents or waivers
required from third parties relating to the performance by Purchaser of its
obligations hereunder shall have been obtained.
(f) No Actions or Proceedings. No claim, action, suit,
investigation or proceeding shall be pending or threatened before any court
or governmental agency which presents a substantial risk of the restraint
or prohibition of the transactions contemplated by this Agreement.
Article VI
POST-CLOSING COVENANTS
6.1 Post-Closing Notifications. Purchaser and Seller will, and each
will cause their respective Affiliates to, comply with any post-Closing
notification or other requirements, to the extent then applicable to such
party, of any antitrust, trade competition, investment or control, export or
other law of any governmental entity having jurisdiction over Purchaser or
Seller.
6.2 Certain Tax Matters. All sales, use, transfer, stamp, conveyance,
value added or other similar taxes, duties, excises or governmental charges
imposed by any Governmental Entity with taxing authority, domestic or foreign,
and all recording or filing fees, notarial fees and other similar costs of
Closing with respect to the transfer of the Partnership Interests or otherwise
on account of this Agreement or the transactions contemplated hereby will be
borne by Seller. Seller will indemnify Purchaser against any liability,
direct or indirect, for any taxes imposed on Purchaser or with respect to the
Company that are attributable to any taxable periods ending on or prior to
the Closing Date or with respect to the allocable portion of any taxable
period that includes but does not end on the Closing Date.
6.3 Further Assurances. Subject to the terms of this Agreement, each
of Purchaser and Seller shall execute such documents and other instruments
and take such further actions as may be reasonably required to carry out
the provisions hereof and consummate the Acquisition.
Article VII
TERMINATION
7.1 Termination.
(a) This Agreement may be terminated and the Acquisition abandoned
at any time prior to the Closing:
(i) by mutual written consent of Purchaser and Seller;
(ii) by Purchaser or Seller if:
(A) the Closing does not occur on or before
January 31, 2006; provided that the right to terminate this Agreement under
this clause (ii)(A) shall not be available to any party whose breach of a
representation, warranty, covenant or agreement under this Agreement has been
the cause of or resulted in the failure of the Closing to occur on or before
such date; or
(B) a Governmental Entity shall have issued an
Order or taken any other action, in any case having the effect of permanently
restraining, enjoining or otherwise prohibiting the Acquisition, which Order
or other action is final and non-appealable;
(iii) by Purchaser if any condition to the obligations
of Purchaser hereunder becomes incapable of fulfillment other than as a
result of a breach by Purchaser of any covenant or agreement contained in
this Agreement, and such condition is not waived by Purchaser.
(b) The party desiring to terminate this Agreement pursuant to
Section 7.1(a)(ii) or (iii) shall give written notice of such termination to
the other party hereto.
7.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.1, this Agreement shall immediately become
null and void and there shall be no liability or obligation on the part of
any party hereto or their respective officers, directors, stockholders,
partners or Affiliates, except as set forth in Section 7.3; provided that
the provisions of Section 7.3 (Remedies) and Article VIII of this Agreement
shall remain in full force and effect and survive any termination of this
Agreement.
7.3 Remedies. Any party terminating this Agreement pursuant to
Section 7.1 shall have the right to recover damages sustained by such party
as a result of any breach by the other party of any representation, warranty,
covenant or agreement contained in this Agreement or fraud or willful
misrepresentation; provided, however, that the party seeking relief is not in
breach of any representation, warranty, covenant or agreement contained in
this Agreement under circumstances which would have permitted the other party
to terminate the Agreement under Section 7.1.
Article VIII
INDEMNIFICATION
8.1 Survival.
(a) Except as set forth in Section 8.1(b), all representations and
warranties contained in this Agreement, or in any schedule, certificate or other
document delivered pursuant to this Agreement, shall terminate upon the Closing.
(b) The representations and warranties contained in Section 3.3
(Ownership of Partnership Interest) shall survive the Closing indefinitely.
(c) The covenants and agreements which by their terms do not
contemplate performance after the Closing Date shall survive the Closing for a
period of two (2) years. The covenants and agreements which by their terms
contemplate performance after the Closing Date shall survive the Closing in
accordance with their terms until sixty (60) days following the expiration of
any applicable statute of limitations.
8.2 Indemnification.
(a) Seller shall indemnify, defend and hold harmless Purchaser
from and against any and all Losses based upon, arising out of, in connection
with, or relating to any inaccuracy or breach of any representation, warranty,
covenant or agreement of Seller contained in this Agreement or other documents
delivered by Seller pursuant to this Agreement.
(b) Purchaser shall indemnify, defend and hold harmless Seller
from and against any and all Losses based upon, arising out of, in connection
with, or relating to any inaccuracy or breach of any representation, warranty,
covenant or agreement of Purchaser contained in this Agreement or other
documents delivered by Purchaser pursuant to this Agreement.
8.3 Notice and Opportunity to Defend.
(a) Promptly after receipt by any party hereto (the "Indemnitee")
of notice of any demand, claim or circumstances which gives rise or might give
rise to a claim or the commencement (or threatened commencement) of any action,
proceeding or investigation (an "Asserted Liability") that may result in Losses,
the Indemnitee shall give notice thereof to the party obligated to provide
indemnification pursuant to Section 8.2 (the "Indemnifying Party). Such notice
shall describe the Asserted Liability in reasonable detail, and shall indicate
the amount (estimated, if necessary) of the Losses that have been or may be
suffered by the Indemnitee.
(b) The Indemnifying Party may elect to compromise or defend, at
its own expense and by its own counsel, any Asserted Liability. If the
Indemnifying Party elects to compromise or defend such Asserted Liability,
it shall within thirty (30) days (or sooner, if the nature of the Asserted
Liability so requires) notify the Indemnitee of its intent to do so, and
the Indemnitee shall cooperate, at the expense of the Indemnifying Party,
in the compromise of, or defense against, such Asserted Liability. If the
Indemnifying Party elects not to compromise or defend the Asserted
Liability, fails to notify the Indemnitee of its election as herein
provided, or contests its obligation to indemnify under this Agreement,
the Indemnitee may pay, compromise or defend such Asserted Liability.
Notwithstanding the foregoing, neither the Indemnifying Party nor the
Indemnitee may settle or compromise any claim over the objection of the
other; provided; however, that consent to settlement or compromise shall not
be uUnreasonably withheld. In any event, the Indemnitee and the Indemnifying
Party may participate at their own expense in the defense of such Asserted
Liability. If the Indemnifying Party chooses to defend any claim, the
Indemnitee shall make available to the Indemnifying Party any books,
records or other documents within its control that are necessary or
appropriate for such defense.
8.4 Contingent Claims. Nothing herein shall be deemed to prevent an
Indemnitee from making a claim hereunder for potential or contingent claims or
demands; provided that any notice of Asserted Liability sets forth the
specific basis for any such contingent claim to the extent then feasible and
the Indemnitee has reasonable grounds to believe that such a claim may be
made.
8.5 Effect of Investigation. An Indemnitee's right to indemnification
or other remedies based upon the representations and warranties and covenants
and agreements of the Indemnitor will not be affected by any investigation or
knowledge of the Indemnitee or any waiver by the Indemnitee of any condition
based on the accuracy of any representation or warranty, or compliance with
any covenant or agreement. Such representations and warranties and covenants
and agreements shall not be affected or deemed waived by reason of the fact
that the Indemnitee knew or should have known that any representation or
warranty might be inaccurate or that the Indemnitor failed to comply with
any agreement or covenant. Any investigation by such party shall be for
its own protection only and shall not affect or impair any right or remedy
hereunder.
8.6 Tax Treatment of Indemnification Payments. Except as otherwise
required by applicable Law, the parties shall treat any indemnification
payment made hereunder as an adjustment to Purchase Price.
8.7 Other Rights and Remedies Not Affected. The indemnification rights
of the parties under this Article VIII are independent of and in addition to
such rights and remedies as the parties may have at Law or in equity or
otherwise for any misrepresentation, breach of warranty or failure to fulfill
any agreement or covenant hereunder on the part of any party hereto, including
the right to seek specific performance, rescission or restitution, none of
which rights or remedies shall be affected or diminished hereby.
Article IX
MISCELLANEOUS
9.1 Notices. Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted hereunder shall be in
writing and Shall be deemed given (a) on the date established by the sender as
having been delivered personally, (b) on the date delivered by a private
courier as established by the sender by evidence obtained from the courier,
(c) on the date sent by facsimile, with confirmation of transmission, if sent
during normal business hours of the recipient, if not, then on the next
Business Day, or (d) on the fifth (5th) day after the date mailed, by
certified or registered mail, return receipt requested, postage prepaid.
Such communications, to be valid, must be addressed as follows:
If to Purchaser, to:
Hallador Petroleum Company
1660 Lincoln Street, Suite 2700
Denver, CO 80264
Attn: Victor Stabio
Facsimile: 303.832.3013
With a copy to:
Morgan, Lewis & Bockius LLP
300 S. Grand Avenue, Suite 2200
Los Angeles, CA 90071
Attn: Ingrid A. Myers, Esq.
Facsimile: 213.612.2501
If to Yorktown, to:
Yorktown Energy Partners II, LP
410 Park Avenue, 19th Floor
New York, New York 10022
Attn: Bryan H. Lawrence
Facsimile: 212.515.2105
With a copy to:
Thompson & Knight LLP
1700 Pacific Avenue, Suite 3300
Dallas, Texas 75201
Attn: Jeffrey A. Zlotky, Esq.
Facsimile: 214.969.1751
or to such other address or to the attention of such Person or Persons as the
recipient party has specified by prior written notice to the sending party (or
in the case of counsel, to such other readily ascertainable business address as
such counsel may hereafter maintain). If more than one method for sending
notice as set forth above is used, the earliest notice date established as set
forth above shall control.
9.2 Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and is signed, in the case
of an amendment, by each party to this Agreement, or in the case of a waiver,
by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
(c) To the maximum extent permitted by Law, (i) no waiver that
may be given by a party shall be applicable except in the specific instance for
which it was given and (ii) no notice to or demand on one party shall be deemed
to be a waiver of any obligation of such party or the right of the party giving
such notice or demand to take further action without notice or demand.
9.3 Expenses. Each party shall bear its own costs and expenses in
connection with this Agreement and the transactions contemplated by this
Agreement, including all legal, accounting, financial advisory, consulting
and all other fees and expenses of third parties, whether or not the
Acquisition is consummated.
9.4 Successors and Assigns. This Agreement may not be assigned by
either party hereto without the prior written consent of the other party.
Subject to the foregoing, all of the terms and provisions of this Agreement
shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns.
9.5 Governing Law. This Agreement and the Exhibits and Schedules
hereto shall be governed by and interpreted and enforced in accordance with
the Laws of the State of New York, without giving effect to any choice of Law
or conflict of Laws rules or provisions (whether of the State of New York or
any other jurisdiction) that would cause the application of the Laws of any
jurisdiction other than the State of New York.
9.6 Consent to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York in connection with any Action arising out of or relating
to this Agreement or any breach thereof, or any transaction contemplated
hereby, unless such court would not have subject matter jurisdiction thereof,
in which event the parties consent to the exclusive jurisdiction of the
Supreme Court of the State of New York, County of New York. Each party
further agrees that service of any process, summons, notice or document
by U.S. registered mail to such party's respective address set forth
above shall be effective service of process for any Action, Each party
irrevocably and unconditionally waives any objection to the laying of
venue of any Action arising out of this Agreement or the Acquisition and
hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such Action brought in any such
court has been brought in an inconvenient forum. EACH PARTY HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT HEREOF.
9.7 Counterparts. This Agreement may be executed in counterparts,
and either party hereto may execute any such counterpart, each of which
when executed and delivered shall be deemed to be an original and both of
which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become effective when each party hereto
shall have received a counterpart hereof signed by the other party hereto.
The parties agree that the delivery of this Agreement may be effected by
means of an exchange of facsimile signatures with original copies to
follow by mail or courier service.
9.8 Third Party Beneficiaries. No provision of this Agreement is
intended to confer upon any Person other than the parties hereto any rights
or remedies hereunder; except that in the case of Article VIII hereof, the
Indemnitees and their respective heirs, executors, administrators, legal
representatives, successors and assigns, are intended third party
beneficiaries of such sections and shall have the right to enforce such
sections in their own names.
9.9 Entire Agreement. This Agreement and the documents, instruments
and other agreements specifically referred to herein or delivered pursuant
hereto set forth the entire understanding of the parties hereto with respect
to the Acquisition. All schedules, exhibits and attachments referred to
herein are intended to be and hereby are specifically made a part of this
Agreement. Any and all previous agreements and understandings between or
among the parties regarding the subject matter hereof, whether written or
oral, are superseded by this Agreement.
9.10 Captions. All captions contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement and shall
not affect in any way the meaning or interpretation of this Agreement.
9.11 Severability. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
9.12 Interpretation.
(a) The meaning assigned to each term defined herein shall be
equally applicable to both the singular and the plural forms of such term and
vice versa, and words denoting either gender shall include both genders as the
context requires. Where a word or phrase is defined herein, each of its other
grammatical forms shall have a corresponding meaning.
(b) The terms "hereof", "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(c) When a reference is made in this Agreement to an Article,
Section, paragraph, Exhibit or Schedule, such reference is to an Article,
Section, paragraph, Exhibit or Schedule to this Agreement unless otherwise
specified.
(d) The word "include", "includes", and "including" when used in
this Agreement shall be deemed to be followed by the words "without
limitation", unless otherwise specified.
(e) A reference to any party to this Agreement or any other
agreement or document shall include such party's predecessors, successors
and permitted assigns.
(f) Reference to any Law means such Law as amended, modified,
codified, replaced or reenacted, and all rules and regulations promulgated
thereunder.
(g) The parties have participated jointly in the negotiation
and drafting of this Agreement. Any rule of construction or interpretation
otherwise requiring this Agreement to be construed or interpreted against any
party by virtue of the authorship of this Agreement shall not apply to the
construction and interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
PURCHASER:
HALLADOR PETROLEUM COMPANY
By:/s/VICTOR P. STABIO
Title: CEO and President
SELLER:
YORKTOWN ENERGY PARTNERS II, L.P.
By: Yorktown II LP,
its general partner
By: Yorktown II Associates LLC,
its general partner
By: Bryan Lawrence
Title:
SCHEDULE 2.2
Seller Wire Transfer Information
EXHIBIT A
Form of Amendment to the
Second Amended and Restated Limited Partnership Agreement
of Savoy Energy Limited Partnership