Exhibit
10.1
Purchase and Sale
Agreement
between
PRB Energy,
inc
“Seller”
and
Arête Industries,
Inc. .
“Buyer”
Effective: September 1,
2006
PURCHASE AND SALE AGREEMENT BY AND
BETWEEN ARETE INDUSTRIES, INC. and PRB ENERGY, INC.
EFFECTIVE SEPTEMBER 1,
2006
PURCHASE AND SALE
AGREEMENT
This Purchase and
Sale Agreement (the “ Agreement ”) entered into
this 1st day of September, 2006, is the agreement between PRB
Energy, Inc., 1875 Lawrence Street, Suite 450, Denver, Colorado
80202 (the " Seller ") and Arête Industries, Inc., 7260
Osceola Street, Westminster, Colorado 80030 (the “
Buyer ”) concerning the sale and purchase of certain
coal bed methane gas gathering pipeline and compressor
station-related assets described below. For purposes of this
Agreement, the effective date of the purchase and sale shall be
12:01 a.m. Mountain Time on September 1, 2006 (the “
Effective Date ”). Seller and Buyer shall close the
transaction contemplated by this Agreement on or before September
13, 2006, (the “ Closing Date ”.)
A. Buyer and Seller
desire to enter into an agreement whereby the Seller seeks to sell
and the Buyer seeks to buy the coal bed methane gas gathering
pipeline and compressor station-related assets currently associated
with the TOP Gathering System in Campbell County, Wyoming
(hereinafter referred to as the "TOP"); and
B. Buyer and Seller
desire to enter into this Agreement to complete said
transaction.
Now therefore, in consideration of the mutual
agreements and covenants contained herein, Buyer and Seller agree
as follows:
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Purchase and Sale of Assets . Subject
to the terms, conditions and exclusions of this Agreement, Seller
agrees to sell and Buyer agrees to purchase Seller’s right,
title and interest in and to "TOP" located in Campbell County,
Wyoming as depicted on Exhibit A
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12.
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a. Real Property . All easements,
rights of way, permits, licenses, prescriptive rights structures or
other interests in real property associated with or relating to the
Assets as listed on Exhibit A-1;
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13.
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b. Equipment . All pipelines,
equipment, valves, vessels, fittings, meters or other measurement
facilities, operational and control equipment, pig launchers, pig
catchers, tanks and all other personal property, as depicted on
Exhibit A (one dehydration unit & one
ecology pot currently on site are excluded from the purchase and
sale) ;
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14.
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c.Contracts et al. All contracts and
agreements relating to the use of the assets, as depicted on
Exhibit A-1 ;
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Other Interests in the Assets . All
other rights, titles and interests in and to the Assets as
described above are part of the Assets, it being the purpose and
intent of this Agreement that Seller sell and Buyer purchase all of
Seller’s right, title and interest in and to the Assets.
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PURCHASE AND SALE AGREEMENT BY AND
BETWEEN ARETE INDUSTRIES, INC. and PRB ENERGY, INC.
EFFECTIVE SEPTEMBER 1,
2006
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Purchase Price . In consideration of
the conveyance of the Assets, upon execution of this Agreement,
Buyer shall pay to Seller the sum of Three Hundred and Thirty
Thousand Dollars and no cents ($330,000.00) (the “
Purchase Price ”)
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Seller's Representations and Warranties
. Seller represents and warrants, to the best of its knowledge, the
following to Buyer as of the Closing Date:
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Preferential Rights to Purchase . No
third party holds any preferential right to purchase, right of
first offer, right of last refusal or other preferential right to
purchase the Assets.
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b.
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Signatory for Seller . The signatory
for Seller has the full power and authority to bind the Seller to
the terms hereof, and to complete the sale contemplated hereby.
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c.
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Agreement Represents . This Agreement
represents the valid and subsisting agreement of Seller, fully
binding upon Seller and subject only to general principles of
equity and bankruptcy laws.
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No Abandonment . Seller has taken no
actions that demonstrate an intent to abandon the Assets, or
released of record any rights of way pertaining to the Assets.
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Fees . Seller has incurred no
liability, contingent or otherwise, for broker's or finder's fees
in respect to this transaction for which Buyer shall have any
responsibility whatsoever.
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Buyer's Representations and Warranties
. Buyer represents and warrants, to the best of Buyer’s
knowledge, the following to Seller as of the Closing Date:
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Consents and Approvals. No consent,
approval, authorization, license, order or permit, or declaration,
filing or registration with, or notification to any governmental
authority or any other person, is required to be obtained by the
Buyer in connection with the execution and delivery of this
Agreement by the Buyer or the performance of the Buyer's
obligations hereunder;
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Fees . Buyer has not incurred any
liability, contingent or otherwise, for brokers' or finders' fees
relating to the transactions contemplated by this Agreement for
which Seller shall have any responsibility whatsoever;
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1.
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c. Restoration . Buyer has the sole
responsibility to determine the necessary measures and to perform
all necessary restoration of the Assets.
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WARRANTY . BUYER ACKNOWLEDGES
AND AGREES THAT THE ASSETS LISTED IN EXHIBITS A, A-1 AND B ARE
BEING TRANSFERRED, ASSIGNED AND CONVEYED FROM SELLER TO BUYER "AS
IS, WHERE IS AND WITH ALL FAULTS" IN THEIR PRESENT CONDITION AND
STATE OF REPAIR. SELLER HEREBY DISCLAIMS ANY AND ALL
REPRESENTATIONS AND WARRANTIES
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PURCHASE AND SALE AGREEMENT BY AND
BETWEEN ARETE INDUSTRIES, INC. and PRB ENERGY, INC.
EFFECTIVE SEPTEMBER 1,
2006
CONCERNING
THE ASSETS, EXPRESS OR IMPLIED, WHETHER ARISING IN CONTRACT, TORT
OR ANY OTHER THEORY OF LAW, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A GENERAL OR
PARTICULAR PURPOSE. FURTHER, BUYER SPECIFICALLY AGREES THAT SELLER
IS MAKING NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED,
AS TO THE ADEQUACY OR COMPLETENESS OF THE UNDERLYING REAL PROPERTY
INTERESTS ASSOCIATED WITH OR USED IN CONNECTION WITH THE ASSETS,
INCLUDING BUT NOT LIMITED TO EASEMENTS AND RIGHTS OF
WAY.
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By Seller. Seller agrees to
indemnify, defend and hold Buyer harmless on account of all debts,
liabilities or causes of action attributable to Buyer’s
ownership of the property and to transactions applicable to the
Contracts which accrued prior to the date of Closing except as
otherwise set forth below; and
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By Buyer . Buyer agrees to
indemnify, defend and hold Seller harmless on account of all debts,
liabilities or causes of action attributable to Seller’s
ownership of the property and to transactions applicable to the
Contracts which accrued after to the date of Closing.
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All indemnities of or by the parties
under this Agreement shall survive the Closing Date
hereof.
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Conveyance Documents . At Closing,
Seller shall execute and deliver an Assignment, Conveyance, and
Bill of Sale in the form of which is attached as Exhibit B.
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Conditions to Closing - Seller . The
Seller’s obligations at Closing are subject, at
Seller’s option, to the satisfaction at or prior to the
Closing Date of the following conditions precedent:
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All representations and warranties of Buyer
contained in Paragraph 4 of this Agreement shall be true and
correct in all material respects, and Buyer shall have performed
and satisfied all covenants and agreements required by this
Agreement to be performed and satisfied by Buyer at or prior to the
Closing Date in all material respects;
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2.
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b.Buyer shall have executed and delivered to
Seller all of the documents that are contemplated to be executed
and delivered pursuant to this Agreement prior to or at the Closing
Date.
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Conditions to Closing - Buyer . The
Buyer’s obligations at Closing are subject, at Buyer’s
option, to the satisfaction at or prior to the Closing Date of the
following conditions precedent:
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All representations and warranties of Seller
contained in Paragraph 3 of this Agreement shall be true and
correct in all material respects, and Seller shall have performed
and
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4
PURCHASE AND SALE AGREEMENT BY AND
BETWEEN ARETE INDUSTRIES, INC. and PRB ENERGY, INC.
EFFECTIVE SEPTEMBER 1,
2006
satisfied all
covenants and agreements required by this Agreement to be performed
and satisfied by Seller at or prior to the Closing Date in all
material respects;
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Seller shall have executed and delivered to
Buyer all of the documents that are contemplated to be executed and
delivered pursuant to this Agreement prior to or at the Closing
Date.
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10.
Termination . This Agreement may be terminated in accordance
with the following provisions:
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By Seller if the conditions set forth in
Paragraph 8 are not satisfied, through no fault of the Seller, or
waived by Seller in writing, as of the Closing Date; or
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