EXHIBIT 10.89
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of March 17, 1999, but effective as of 12:01 a.m., Central Standard Time,
on January 1, 1999 (the "Effective Time"), by and among Sabacol, Inc., a
Delaware corporation ("Sabacol"), Omimex Resources, Inc., a Delaware
corporation ("ORI"), Omimex de Colombia, Ltd., a Delaware corporation ("ODC"),
and Omimex International Corporation d/b/a Omimex Petroleum, Inc., a Colorado
corporation ("OPI"). ORI, ODC and OPI are collectively referred to herein as
the "Omimex Group".
1. ORI wholly owns ODC and OPI. The members of the Omimex Group are
mutually dependent on each other in the conduct of their respective businesses
as an integrated operation, with the financing needed from time to time by
each often being provided by another or by means of financing obtained by one
affiliate with the support of others for their mutual benefit, the ability of
each to obtain such financing being dependent on the successful operations of
the others.
2. ORI holds a certain promissory note dated June 5, 1998, in the
principal amount of $4,190,000, made by Saba Petroleum Company, a Delaware
corporation ("Saba"), and payable to the order of ORI (the "Note"). Sabacol
owns certain property in Colombia, and OPI owns certain property in
California.
3. On December 11, 1998 (the "Petition Date"), Sabacol filed a
petition seeking voluntary relief under Chapter ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Code in the United States Bankruptcy Court for the Central District of
California, Northern Division (the "Bankruptcy Court"), under Case No.
98-15858 (the "Bankruptcy Case").
4. The Omimex Group wishes to purchase, and Sabacol wishes to sell,
such Colombia property in consideration for cancellation and full release of
the Note, such California property and a certain amount of cash, on the terms
and conditions set forth herein.
For and in consideration of the mutual representations, warranties,
covenants and agreements hereinafter set forth and other good and valuable
consideration, and upon the terms and subject to the conditions hereinafter
set forth, the parties do hereby agree as follows.
ARTICLE I
PURCHASE AND SALE
1.1 Sabacol Assets
1.1.1 Upon the terms and subject to the conditions of this
Agreement and in partial consideration for the OPI Assets, at the Closing,
effective as of the Effective Time, Sabacol will sell, convey, transfer,
assign and deliver to ODC, and ODC will acquire and accept from Sabacol, all
of Sabacol's right, title and interest in and to the following assets and
properties (collectively, the "Sabacol Assets"), free and clear of any and all
options, pledges, mortgages, security interests, liens, charges, adverse
claims, rights, restrictions, burdens and encumbrances whatsoever
(collectively and individually, "Encumbrances"), except as otherwise expressly
provided herein:
1. All of the real property of Sabacol listed on Schedule
1.1.1.1 (the "Sabacol Real Property") including, without limitation, all fee
estates, leasehold interests, buildings, improvements, rights-of-way,
easements, rights, liberties, privileges, hereditaments and appurtenances
thereto or located thereon; and
2. All of the personal property of Sabacol listed on
Schedule 1.1.1.2 (the "Sabacol Personal Property").
1.1.2 The Sabacol Assets shall not include the following property
(the "Sabacol Excluded Assets"):
1. Any cash, cash equivalents, bank accounts, certificates
of deposit and securities of Sabacol;
2. Any intangible properties and rights of Sabacol,
wherever located and whether or not described or referred to herein,
including, without limitation, all know-how, trade secrets, technology,
computer software, programs, tapes, discs and related data processing
software, all patents and patent applications and rights and licenses
thereunder, trade names, trademark registrations and applications, common law
trademarks, service marks, copyrights and copyright registrations and
applications;
3. Any rights under any retirement, profit sharing or other
employee benefit plans of Sabacol and any and all of the assets or liabilities
of such plans; and
4. Any property or right, tangible or intangible, of
Sabacol relating to or arising out of the operation of its business other than
the Sabacol Assets, except for Sabacol's right to audit under the Sabacol
Contracts for periods prior to the Effective Time.
1.1.3 Payments Received. ODC shall be entitled to receive all
revenue that accrues from the Sabacol Assets on or after the Effective Time
(the "Sabacol Assets Revenue").
1.2 OPI Assets
1.2.1 Upon the terms and subject to the conditions of this
Agreement and in partial consideration for the Sabacol Assets, at the Closing,
effective as of the Effective Time, OPI will sell, convey, transfer, assign
and deliver to Sabacol, and Sabacol will acquire and accept from OPI, all of
OPI's right, title and interest in and to the following assets and properties
(collectively, the "OPI Assets"), free and clear of any and all Encumbrances,
except as otherwise expressly provided herein:
1. All of the real property of OPI listed on Schedule
1.2.1.1 (the "OPI Real Property") including, without limitation, all fee
estates, leasehold interests, buildings, improvements, rights-of-way,
easements, rights, liberties, privileges, hereditaments and appurtenances
thereto or located thereon; and
2. All of the personal property of OPI listed on Schedule
1.2.1.2 (the "OPI Personal Property").
1.2.2 The OPI Assets shall not include the following property (the
"OPI Excluded Assets"):
1. Any cash, cash equivalents, bank accounts, certificates
of deposit and securities of OPI;
2. Any intangible properties and rights of OPI, wherever
located and whether or not described or referred to herein, including, without
limitation, all know-how, trade secrets, technology, computer software,
programs, tapes, discs and related data processing software, all patents and
patent applications and rights and licenses thereunder, trade names, trademark
registrations and applications, common law trademarks, service marks,
copyrights and copyright registrations and applications;
3. Any rights under any retirement, profit sharing or other
employee benefit plans of the Omimex Group and any and all of the assets or
liabilities of such plans; and
4. Any property or right, tangible or intangible, of OPI
relating to or arising out of the operation of its business other than the OPI
Assets, except for OPI's right to audit under the OPI Contracts for periods
prior to the Effective Time.
1.2.3 Payments Received. Sabacol shall be entitled to receive all
revenue that accrues from the OPI Assets on or after the Effective Time (the
"OPI Assets Revenue").
1.3 Assumption of Liabilities.
1.3.1 Assumed Sabacol Liabilities. ODC shall assume and be liable
for all of Sabacol's obligations that arise under the contracts, leases,
arrangements and commitments set forth on Schedule 1.3.1 from and after the
Effective Time (collectively, the "Assumed Sabacol Liabilities"). If ODC
makes an Assumption Election under Section 2.2.1, then ODC shall also assume
the Assumed Tax Liability. No member of the Omimex Group shall assume or be
liable for (i) any obligation to perform or any obligation or liability for
default or nonperformance by Sabacol under the Assumed Sabacol Liabilities
that arises prior to the Effective Time, (ii) any liability relating to the
condition of the OPI Assets, except as otherwise provided herein or (iii) any
other debts, contracts, leases, liabilities, arrangements, commitments,
obligations, restrictions, disabilities or duties of Sabacol, except the
Assumed Tax Liability, if assumed under Section 2.2.1. Sabacol shall pay all
amounts that first accrue under the Assumed Sabacol Liabilities on or after
the Effective Time and before the Closing Date (the "Assumed Sabacol
Liabilities Payments") from Sabacol's own funds or the Sabacol Assets Revenue,
and ODC shall reimburse Sabacol for the Assumed Sabacol Liabilities Payments
that Sabacol paid from its own funds. Sabacol shall maintain all invoices,
receipts and other evidence of the Assumed Sabacol Liabilities Payments and
the source of funds used for payment thereof.
1.3.2 Assumed OPI Liabilities. Sabacol shall assume and be liable
for all of OPI's obligations that arise under the contracts, leases,
arrangements and commitments set forth on Schedule 1.3.2 from and after the
Effective Time (collectively, the "Assumed OPI Liabilities"). Sabacol shall
not assume or be liable for (i) any obligation to perform or any obligation or
liability for default or nonperformance by OPI under the Assumed OPI
Liabilities that arises prior to the Effective Time, (ii) any liability
relating to the condition of the Sabacol Assets, except as otherwise provided
herein or (iii) any other debts, contracts, leases, liabilities, arrangements,
commitments, obligations, restrictions, disabilities or duties of OPI. OPI
shall pay all amounts that first accrue under the Assumed OPI Liabilities on
or after the Effective Time and before the Closing Date (the "Assumed OPI
Liabilities Payments") from OPI's own funds or the OPI Assets Revenue, and
Sabacol shall reimburse OPI for the Assumed OPI Liabilities Payments that OPI
paid from its own funds. OPI shall maintain all invoices, receipts and other
evidence of the Assumed OPI Liabilities Payments and the source of funds used
for payment thereof.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Sabacol Assets (the
"Purchase Price") shall be comprised of the items set forth below, subject to
the Contingent Payment described in Section 2.6 below and adjustment under
Sections 2.2.2 and 2.7. The Omimex Group shall pay the Purchase Price as
follows:
2.1.1 ORI shall cancel and fully release the Note, under which the
parties stipulate that the sum of $4,151,287.67 of principal and $205,863.67
of interest is due and owing as of the December 31, 1998 (collectively, the
"Note Amount");
2.1.2 OPI shall transfer the OPI Assets to Sabacol;
2.1.3 ODC shall assign to and fully release Sabacol from ODC's
claims to the Sabacol Indebtedness. The "Sabacol Indebtedness" is an amount
equal to:
(i) the amount of debt that Sabacol owes to ODC as of
December 31, 1998 under those certain Joint Operating Agreements between ODC
and Sabacol (the "ODC Agreements"), which debt the parties estimate to be in
the amount of $2,265,411; plus
(ii) the fair market value of the oil in the production
storage tanks located on the OPI Assets as of December 31, 1998 (the "OPI
Oil"), which the parties estimate to be in the amount of $2,060.86; minus
(iii) The amount of debt that OPI owes to Saba Petroleum,
Inc. as of December 31, 1998 relating to expenses of the Richfield East Dome
Unit (the "Redu Debt"), which debt the parties estimate to be in the amount of
$246,839.87.
2.1.4 ODC shall either (i) assume the Assumed Tax Liability (as
defined in Section 2.2.1) or (ii) deposit cash into the Escrow Account (as
defined in Section 2.2.3) in an amount equal to the Assumed Tax Liability.
2.1.5 ODC shall deposit cash into the Escrow Account in an amount
equal to the Positive Initial Settlement Amount (as defined in Section
2.2.2.3), if any.
2.2 Election; Escrow Account
2.2.1 Election. ODC may satisfy the Assumed Tax Liability by
electing to either (i) assume the Assumed Tax Liability (the "Assumption
Election") or (ii) deposit into the Escrow Account an amount equal to the
Assumed Tax Liability (the "Cash Election"). The "Assumed Tax Liability" shall
mean $2,322,765, the amount of the tax liability, including penalties and
interest, of Sabacol to the Direccion de Impuestos y Aduanas Racionales and/or
any entity that collects or holds funds on the behalf thereof (collectively,
"DIAN") that has accrued through December 31, 1998. ODC shall notify Sabacol
in writing of ODC's election with regard to the Assumed Tax Liability within
fifteen (15) business days after the date hereof. If ODC has not made such
election by such time, ODC shall waive the right to make a Cash Election and
shall assume the Assumed Tax Liability at the Closing. The parties
acknowledge and agree that no member of the Omimex Group shall have any
liability for (i) any taxes, including penalties and interest, of Sabacol to
any taxing authority in Colombia in excess of the Assumed Tax Liability,
whether incurred or accruing before, on or after the Effective Time, or (ii)
any penalties or interest incurred or accruing on the Assumed Tax Liability on
or after the Effective Time (collectively, the "Unassumed Tax Liability").
The aggregate amount of the Unassumed Tax Liability that Sabacol knows or
reasonably knows has accrued as of the date hereof and the Closing Date is set
forth on Schedule 2.2.1. Notwithstanding anything herein to the contrary, the
parties acknowledge and agree that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, on behalf of Sabacol, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, on behalf of the Omimex Group, intend to negotiate a
settlement of the Assumed Tax Liability and Unassumed Tax Liability with DIAN.
The parties agree that Sabacol shall receive all benefits of any reduction in
the amount of the Assumed Tax Liability and the Unassumed Tax Liability that
results from such a settlement. If, for example, DIAN agrees to settle the
Assumed Tax Liability for less than $2,322,765, then (i) the amount of the
Assumed Tax Liability shall be reduced to such lower settlement amount and
(ii) Sabacol shall receive an adjustment in its favor under Section 2.2.2.1 in
an amount equal to the difference between $2,322,765 and the amount of such
settlement amount.
2.2.2 Initial Settlement Amount. No less than two (2) days prior
to the Closing Date, Sabacol and the Omimex Group shall jointly and fully
cooperate with each other to prepare an initial statement (the "Initial
Settlement Statement"), which shall calculate the initial adjustment to the
Purchase Price in accordance with this Section 2.2.2 (the "Initial Settlement
Amount").
1. Sabacol Adjustments. The Initial Settlement Statement
shall incorporate the following adjustments in favor of Sabacol (the "Initial
Sabacol Adjustments"):
a. An amount equal to the difference between (i)
$9,000,000 and (ii) the sum of the Note Amount, the Sabacol Indebtedness and
the Assumed Tax Liability, if such difference results in a positive number;
b. Any amount of the OPI Assets Revenue that OPI has
received and not used to pay any Assumed OPI Liabilities Payments;
c. Any amount of the Assumed Sabacol Liabilities
Payments that Sabacol paid from its own funds;
d. An amount equal to all capital costs, expenses and
any taxes that Sabacol pays, and that are, in accordance with generally
accepted accounting principles ("GAAP"), attributable to the Sabacol Assets
from and after the Effective Time, including, without limitation:
1) royalties, rentals or other similar charges;
2) expenses paid on behalf of ODC under
applicable operating agreements and, in the absence of an operating agreement,
expenses of the sort customarily billed under such agreements; and
3) ad valorem, property and other taxes and
assessments (but not including income taxes) based upon or measured by the
ownership of the Sabacol Assets or the production of hydrocarbons or the
receipt of proceeds therefrom;
e. The fair market value of the merchantable oil in
the production storage tanks located on the Sabacol Real Property as of
December 31, 1998;
f. The fair market value of Sabacol's inventory which
(i) was purchased (except from Texaco) and (ii) remained unused in the
warehouses located on the Sabacol Assets as of December 31, 1998;
g. The amount by which the debt that Sabacol owes to
ODC as of December 31, 1998 under the ODC Agreements is less than $2,265,411;
h. The amount by which the fair market value of the
OPI Oil is less than $2,060.86;
i. The amount by which the Redu Debt as of December
31, 1998 exceeds $246,839.87; and
j. Any other amount that any member of the Omimex
Group owes to Sabacol that is not otherwise covered hereunder.
2. Omimex Group Adjustments. The Initial Settlement
Statement shall incorporate the following adjustments in favor of the Omimex
Group (the "Initial Omimex Adjustments"):
a. An amount equal to the difference between (i)
$9,000,000 and (ii) the sum of the Note Amount, the Sabacol Indebtedness and
the Assumed Tax Liability, if such difference results in a negative number;
b. Any amount of the Sabacol Assets Revenue that
Sabacol has received and not used to pay any Assumed Sabacol Liabilities
Payments;
c. Any amount of the Assumed OPI Liabilities Payments
that OPI paid from its own funds;
d. An amount equal to all capital costs, expenses and
any taxes that any member of the Omimex Group pays, and that are, in
accordance with GAAP, attributable to the OPI Assets from and after the
Effective Time, including, without limitation:
1) royalties, rentals or other similar charges;
2) expenses paid on behalf of Sabacol under
applicable operating agreements and, in the absence of an operating agreement,
expenses of the sort customarily billed under such agreements; and
3) ad valorem, property and other taxes and
assessments (but not including income taxes) based upon or measured by the
ownership of the OPI Assets or the production of hydrocarbons or the receipt
of proceeds therefrom;
e. The amount by which the debt that Sabacol owes to
ODC as of December 31, 1998 under the ODC Agreements exceeds $2,265,411;
f. The amount by which the fair market value of the
OPI Oil exceeds $2,060.86;
g. The amount by which the Redu Debt as of December
31, 1998 is less than $246,839.87; and
h. Any other amount that Sabacol owes to any member of
the Omimex Group that is not otherwise covered hereunder.
3. The parties shall calculate the Initial Settlement
Amount by subtracting the total amount of the Initial Omimex Adjustments from
the total amount of the Initial Sabacol Adjustments. If the difference
between such amounts is positive (i.e., the amount of the Initial Sabacol
Adjustment exceeds the amount of the Initial Omimex Adjustment), such
difference is the "Positive Initial Settlement Amount". If the difference
between such amounts is negative (i.e., the amount of the Initial Omimex
Adjustment exceeds the amount of the Initial Sabacol Adjustment), such
difference is the "Negative Initial Settlement Amount". If the initial
adjustment to the Purchase Price results in a Positive Initial Settlement
Amount, then ODC shall deposit cash into the Escrow Account in an amount equal
to the Positive Initial Settlement Amount. If the initial adjustment to the
Purchase Price results in a Negative Initial Settlement Amount, then Sabacol
shall pay to ODC at the Closing cash in an amount equal to the Negative
Initial Settlement Amount.
2.2.3 Escrow Account. At the Closing, each of the parties
specified below shall place cash in the designated amounts in an escrow
account (the "Escrow Account") with Bank One, Texas, National Association (the
"Escrow Agent"), who shall hold and deliver such amounts in accordance with
the terms and conditions of the Escrow Agreement substantially in the form of
Exhibit A attached hereto (the "Escrow Agreement"), including fully satisfying
the Assumed Tax Liability, the Unassumed Tax Liability and the Schedule 3.17
Debt:
1. If ODC makes a Cash Election, ODC shall deposit cash in
an amount equal to the Assumed Tax Liability into the Escrow Account;
2. If the initial adjustment to the Purchase Price results
in a Positive Initial Settlement Amount, then ODC shall deposit cash in an
amount equal to the Positive Initial Settlement Amount into the Escrow
Account; and
3. Sabacol shall deposit cash into the Escrow Account in an
amount equal to the sum of (i) of the Unassumed Tax Liability and (ii) the
amount necessary to fully pay and discharge the Schedule 3.17 Debt, less the
Positive Initial Settlement Amount, if any. The Escrow Agent shall hold the
amounts of the (i) Assumed Tax Liability, if any, and the Unassumed Tax
Liability in one escrow account and (ii) the Schedule 3.17 Debt in a second
escrow account, all in accordance with the terms of the Escrow Agreement. All
references in this Agreement to "Escrow Account" shall mean the "Tax Escrow
Account or the Schedule 3.17 Debt Escrow Account, as appropriate and as
defined in the Escrow Agreement. ODC and Sabacol shall share equally the cost
of the Escrow Account. No claim of any creditor of Sabacol or ODC shall be
maintained against the sums held in the Escrow Account. ODC, Sabacol and the
Escrow Agent shall execute and deliver the Escrow Agreement at the Closing.
2.3 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Sabacol Assets as set forth on Schedule 2.3. Each of parties agrees
to provide each of the other parties with all documents, analysis, schedules
and other information reasonably requested in order for the parties to prepare
a complete and accurate allocation of the aggregate Purchase Price to be paid
for the Sabacol Assets in accordance with Section 1060 of the Internal Revenue
Code of 1986, as amended (the "Code"). In addition, each of the parties
hereby undertakes and agrees to file timely any information that may be
required to be filed pursuant to the Treasury regulations promulgated under
Section 1060(b) of the Code. No party hereto shall file any tax return or
other document or otherwise take any position which is inconsistent with the
allocations provided on Schedule 2.3.
2.4 Initial Reference Value. Attached hereto as Schedule 2.4 is a true,
correct and complete copy of that certain reserve report of certain (i)
Sabacol Assets, which was prepared by Netherland ▇▇▇▇▇▇ and Associates, Inc.
("NSAI"), dated as of January 12, 1999 and effective as of January 1, 1999 and
(ii) OPI Assets, which was NSAI, dated as of February 10, 1999 and effective
as of January 1, 1999 (collectively, the "Report"). The Report (i) was
prepared in accordance with standards adopted by the Society of Petroleum
Engineers, to establish an Initial Reference Value ("▇▇▇") for such properties
and (ii) utilizes the following assumptions:
1. Reserve volumes will be projected based on NSAI's analysis of
recent production histories, plans for future operations (including
development schedules) and other relevant factors;
2. Operating expenses, including direct charges, ▇▇▇▇▇,
production taxes, ad valorem taxes and other recurring costs will be projected
based on current estimates for 1999 and will be held constant throughout the
life of the properties;
3. Capital expenditures will be projected based on current
estimates of the dollars and timing involved to convert properties to a
producing status;
4. For purposes of this section only, (i) the value of the
Sabacol Assets will be determined by using $10 per barrel oil price at the
well head in Colombia (a reserve projection using this oil price and projected
production is attached as Schedule 2.4.1) and (ii) the value of the OPI Assets
will be determined by using $10.75 per barrel oil price and the average gas
price received by OPI in December 1998 (a reserve projection using these oil
and gas prices and projected production is attached as Schedule 2.4.2);
5. Economic projections of future performance will be summarized
by category into proved producing ("PDP"), proved nonproducing ("PDNP") and
proved undeveloped ("PUD") categories, according to SPE standards; and
6. The ▇▇▇ will be calculated by applying a 15% discount rate to
the future income streams projected in the reserve report and by applying an
additional factor of 75%, 50% and 25% to PDP, PDNP and PUD reserves,
respectively. The "Net ▇▇▇" will be calculated as the difference between the
▇▇▇ of the Sabacol Assets and the ▇▇▇ of the OPI Assets.
2.5 Final Reference Value. Sabacol and the Omimex Group will cause NSAI
to prepare a revised reserve report (the "Revised Report") to establish a
Final Reserve Value ("FRV"). The Revised Report will be completed by January
31, 2000. The FRV will be calculated using the Report, except that the
effective date of the Revised Report will be January 1, 2000 and the prices to
be used will be the average of the wellhead prices received for production
during the period October 1, 1999 December 31, 1999 for the respective
properties. The Net FRV will be calculated as the difference between the FRV
of the Sabacol Assets and the FRV of the OPI Assets. The parties shall share
equally the cost and expense of preparing the Report and the Revised Report.
2.6 Contingent Payment.If the Net FRV is greater than the Net ▇▇▇,
Sabacol will be entitled to additional consideration. If the difference
between the Net FRV and the Net ▇▇▇ is $5,000,000 or less, then ODC, at its
option, will be entitled to pay such amount to Sabacol either in cash or by
reassigning the ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ pipeline and pipeline-related interests
formerly owned by Sabacol (the "Pipeline Interest") to Sabacol. Such payment
or reassignment would be made on or before March 31, 2000 and, if reassigned,
the reassignment would be effective April 1, 2000. If the difference between
the Net FRV and the Net ▇▇▇ is greater than $5,000,000, then Sabacol will have
the option to repurchase the Sabacol Assets by (i) paying ODC $12,000,000 plus
(a) an amount equal to the capital investments on the Sabacol Assets by ODC,
minus (b) an amount equal to the capital investments on the OPI Assets by
Sabacol, and (ii) reassigning the OPI Assets to OPI. If Sabacol exercises
this option, it will give written notice to the Omimex Group by May 31, 2000
of its intent to exercise this option and will close the transaction
contemplated by the option exercise by June 15, 2000, effective as of April 1,
2000. If the option is not exercised or, if the option is exercised and the
transactions contemplated by the option exercise are not closed by June 15,
2000, then ODC will have fifteen (15) days to either (i) pay Sabacol
$5,000,000 in cash or (ii) reassign the Pipeline Interest to Sabacol. ODC
shall operate the Sabacol Assets in the ordinary course of business, and shall
not dispose of the Sabacol Assets, until June 15, 2000. Any assets reassigned
hereunder to a party under this Section shall be free of all liens and
encumbrances at the time of reassignment.
2.7 Adjustments.
2.7.1 Final Adjustments Statement. On or before ninety (90) days
after Closing (the "Final Settlement Date"), Sabacol and the Omimex Group
shall jointly prepare a final statement (the "Final Settlement Statement"),
which shall calculate the final adjustment to the Purchase Price in accordance
with this Section 2.7 (the "Final Settlement Amount").
1. Sabacol Adjustments. The Final Settlement Statement
shall incorporate the following adjustments in favor of Sabacol (the "Final
Sabacol Adjustments"):
a. Any amount of the OPI Assets Revenue that OPI has
received, not used to pay any Assumed OPI Liabilities Payments and that was
not included in determining the Initial Settlement Amount;
b. Any amount of the Assumed Sabacol Liabilities
Payments that Sabacol paid from its own funds and that was not included in
determining the Initial Settlement Amount;
c. An amount equal to all capital costs, expenses and
any taxes that (i) Sabacol pays, and that are, in accordance with GAAP,
attributable to the Sabacol Assets from and after the Effective Time and (ii)
are not included in determining the Initial Settlement Amount, including,
without limitation:
1) royalties, rentals or other similar charges;
2) expenses paid on behalf of ODC under
applicable operating agreements and, in the absence of an operating agreement,
expenses of the sort customarily billed under such agreements; and
3) ad valorem, property and other taxes and
assessments (but not including income taxes) based upon or measured by the
ownership of the Sabacol Assets or the production of hydrocarbons or the
receipt of proceeds therefrom;
d. The fair market value of the merchantable oil in
the production storage tanks which (i) was located on the Sabacol Real
Property as of December 31, 1998 and (ii) was not included in determining the
Initial Settlement Amount;
e. The fair market value of Sabacol's inventory which
(i) was purchased (except from Texaco), (ii) remained unused in the warehouses
located on the Sabacol Assets as of December 31, 1998 and (iii) was not
included in determining the Initial Settlement Amount;
f. The amount by which the debt that Sabacol owes to
ODC as of December 31, 1998 under the ODC Agreements (i) is less than
$2,265,411 and (ii) was not included in determining the Initial Settlement
Amount;
g. The amount by which the fair market value of the
OPI Oil (i) is less than $2,060.86 and (ii) was not included in determining
the Initial Settlement Amount;
h. The amount by which the Redu Debt as of December
31, 1998 (i) exceeds $246,839.87 and (ii) was not included in determining the
Initial Settlement Amount; and
i. Any other amount that any member of the Omimex
Group owes to Sabacol that is not otherwise covered hereunder and that was not
included in determing the Initial Settlement Amount.
2. Omimex Group Adjustments. The Final Settlement
Statement shall incorporate the following adjustments in favor of the Omimex
Group (the "Final Omimex Adjustments"):
a. Any amount of the Unassumed Tax Liability and the
Schedule 3.17 Debt that was not satisfied at the Closing, which amount the
Omimex Group shall promptly pay to DIAN and other appropriate creditors;
b. Any amount of the Sabacol Assets Revenue that
Sabacol has received, not used to pay any Assumed Sabacol Liabilities Payments
and that was not included in determining the Initial Settlement Amount;
c. Any amount of the Assumed OPI Liabilities Payments
that OPI paid from its own funds and that was not included in determining the
Initial Settlement Amount;
d. An amount equal to all capital costs, expenses and
any taxes that (i) any member of the Omimex Group pays, and that are, in
accordance with GAAP, attributable to the OPI Assets from and after the
Effective Time and (ii) are not included in determining the Initial Settlement
Amount, including, without limitation:
1) royalties, rentals or other similar charges;
2) expenses paid on behalf of Sabacol under
applicable operating agreements and, in the absence of an operating agreement,
expenses of the sort customarily billed under such agreements; and
3) ad valorem, property and other taxes and
assessments (but not including income taxes) based upon or measured by the
ownership of the OPI Assets or the production of hydrocarbons or the receipt
of proceeds therefrom;
e. The amount by which the debt that Sabacol owes to
ODC as of December 31, 1998 under the ODC Agreements (i) exceeds $2,265,411
and (ii) was not included in determining the Initial Settlement Amount;
f. The amount by which the fair market value of the
OPI Oil (i) exceeds $2,060.86 and (ii) was not included in determining the
Initial Settlement Amount;
g. The amount by which the Redu Debt as of December
31, 1998 (i) is less than $246,839.87 and (ii) was not included in determining
the Initial Settlement Amount; and
h. Any other amount that Sabacol owes to any member of
the Omimex Group that is not otherwise covered hereunder and that was not
included in determining the Initial Settlement Amount.
3. The parties shall calculate the Final Settlement Amount
by subtracting the total amount of the Final Omimex Adjustments from the total
amount of the Final Sabacol Adjustments. If the difference between such
amount is positive, such difference is the "Positive Final Settlement Amount".
If the difference between such amounts is negative, such difference is the
"Negative Final Settlement Amount."
4. If the parties are unable to agree on the preparation of
the Final Settlement Statement or either party objects to the Final Settlement
Statement with ten (10) days after the Final Settlement Date, then either
party shall have the right thereafter to submit the matter to the dispute
resolution procedure set forth in Schedule 2.7 (the "Dispute Resolution
Procedure") for determination of the Final Settlement Amount.
5. The Omimex Group shall pay the amount of the Positive
Final Settlement Amount, if any, to Sabacol, and Sabacol shall pay the amount
of the Negative Final Settlement Amount, if any, to the Omimex Group, on or
before the later of (i) thirty-five (35) days after the Final Settlement Date
or (ii) ten (10) days from the determination of the Final Settlement Amount
under the Dispute Resolution Procedure. Interest shall accrue on any unpaid
amount of the Final Settlement Amount at the rate of ten percent (10%) per
annum from the date the specific amount begins to accrue.
2.8 Belridge Property. Within fifteen (15) days after the date hereof,
Sabacol shall cause Dames & ▇▇▇▇▇, a professional limited partnership, to
conduct a Phase I investigation of the property described on Schedule 2.8
hereof (the "Belridge Property") and to prepare and deliver to the parties a
Phase I report thereof (the "Phase I Report"). Sabacol and OPI shall share
equally the costs and expenses of preparing the Phase I Report. OPI agrees to
pay fifty percent (50%) of the cost of any mandatory remediation of the
Belridge Property required under applicable law and identified in the Phase I
Report (the "Mandatory Remediation"), provided that (i) any Mandatory
Remediation is performed and completed within one (1) year after the Closing
Date and (ii) the Omimex Group, as a whole, shall not be responsible to pay
more than $100,000 in the aggregate for any Mandatory Remediation. If the
estimated cost of all of the Mandatory Remediation specified in the Phase I
Report exceeds $200,000, Sabacol may elect to cause OPI to retain title to the
Belridge Property and pay Sabacol the value of the Belridge Property as set
forth on Schedule 2.3 in twelve (12) equal monthly installments, the first
installment being due and payable on the Closing Date and subsequent
installments being due and payable each month thereafter on the calendar day
of the Closing Date until such value is paid in full. If Sabacol fails to
notify OPI of such election in writing within five (5) business days of
Sabacol's receipt of the Phase I Report, Sabacol shall waive and forfeit the
right to make such election and shall retain the Belridge Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SABACOL
Sabacol represents and warrants to the Omimex Group as follows:
3.1 Due Organization and Qualification. Sabacol is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to own, lease
or operate its properties and to carry on its business as it is presently
being operated and in the place where such properties are owned, leased or
operated and such business is conducted. Sabacol is duly qualified or
licensed as a foreign corporation and in good standing in each jurisdiction in
which the character or location of the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to be so qualified or licensed would not
have a material adverse effect on the business, operations, properties, assets
or condition (financial or otherwise), results of operations or prospects of
Sabacol or the Sabacol Assets (a "Sabacol Material Adverse Effect").
3.2 Title. Sabacol has, and upon conveyance of the Sabacol Assets to
ODC by Sabacol at the Closing, ODC will acquire and hold, good and marketable
title to all of the Sabacol Assets, free and clear of any and all
Encumbrances, except as set forth on Schedule 3.2.
3.3 Compliance with Laws. To the best of its knowledge, Sabacol has
complied with all laws, regulations, licensing requirements and orders
applicable to the Sabacol Assets, its business and personnel, except as set
forth in Schedule 3.3.
3.4 Contracts. Set forth on Schedule 3.4 is a true, correct and
complete list of all contracts, leases, arrangements and commitments (whether
oral or written) (copies of which, to the extent written, have been provided
to ODC) by which any of the Sabacol Assets are directly affected or are bound,
except those to which ODC is a party (collectively, the "Sabacol Contracts").
3.5 Contract Defaults. Neither Sabacol nor, to the best of Sabacol's
knowledge, any other party is in default in any material respect under any
Sabacol Contracts, and such Sabacol Contracts are legal, valid and binding
obligations of the respective parties thereto in accordance with their terms
and, except to the extent reflected in Schedule 3.5, have not been amended;
and no defenses, offsets or counterclaims thereto have been asserted or to the
best knowledge of Sabacol, may be made which could have a Sabacol Material
Adverse Effect, by any party thereto other than Sabacol nor has Sabacol waived
any substantial rights thereunder.
3.6 Litigation. Except for the Bankruptcy Case, Schedule 3.6 sets forth
a true, correct and complete list of all actions, suits, proceedings,
investigations or grievances pending against Sabacol or, to the best knowledge
of Sabacol, threatened against Sabacol or the Sabacol Assets, at law or in
equity or before or by any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (collectively, the "Agencies"). Except for the Bankruptcy
Case, none of the actions, suits, proceedings or investigations listed on
Schedule 3.6 either (i) has or would have, if adversely determined, a Sabacol
Material Adverse Effect or (ii) affects or would affect, if adversely
determined, the right of ability of Sabacol to carry on its business
substantially as now conducted. Except for the Bankruptcy Case, Sabacol is not
subject to, or in default under, any continuing court or Agency order, writ,
injunction or decree, which could have a Sabacol Material Adverse Effect.
3.7 Corporate Power and Authority. The execution, delivery and
performance of this Agreement by Sabacol, and all other agreements by and
among the parties related herewith, and the consummation by them of the
transactions contemplated hereby and thereby, have been duly authorized by all
requisite corporate action and no further action or approval is required in
order to permit Sabacol to consummate the transactions contemplated hereby and
thereby. No approval by the stockholders of Saba is required for the
execution, delivery or performance of this Agreement by Sabacol. This
Agreement constitutes, and all other agreements by and among the parties
related herewith, when executed and delivered in accordance with the terms
thereof, will constitute the legal, valid and binding obligations of Sabacol,
enforceable in accordance with their terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii) the remedy of
specific performance and injunctive relief are subject to certain equitable
defenses and to the discretion of the court before which any proceedings may
be brought (collectively, the "Equitable Exceptions"). Sabacol has full
power, authority and legal right to enter into this Agreement, and all other
agreements by and among the parties related herewith, and to consummate the
transactions contemplated hereby and thereby. The making and performance of
this Agreement, and all other agreements by and among the parties related
herewith, and the consummation of the transactions contemplated hereby and
thereby in accordance with the terms hereof and thereof will not (a) conflict
with the Certificate of Incorporation or the Bylaws of Sabacol, (b) result in
any breach or termination of, or constitute a default under, or constitute an
event that with notice or lapse of time, or both, would become a default
under, or result in the creation of any Encumbrance upon any of the Sabacol
Assets under, or create any rights of termination, cancellation or
acceleration in any person under, any Sabacol Contract, or violate any order,
writ, injunction or decree, to which Sabacol is a party, by which any of the
Sabacol Assets, may be bound or affected or under which any of the Sabacol
Assets receive benefits, (c) result in the loss or adverse modification of any
Sabacol material permits, licenses or concessions or (d) result in the
violation of any provisions of law applicable to Sabacol, the violation of
which could have a Sabacol Material Adverse Effect.
3.8 Consents. Except as set forth on Schedule 3.8, no consent,
approval, notice to, registration or filing with, authorization or order of,
any court or other Agency or any other person or under any Sabacol Contract is
required in order to permit Sabacol to consummate the transactions
contemplated by this Agreement.
3.9 Insurance. Sabacol is adequately insured with responsible insurers
in respect of its properties against business risks normally insured against
by companies in similar lines of business. Set forth on Schedule 3.9 attached
hereto is an accurate list description of all policies and contracts of fire,
casualty, liability and other forms of insurance and all fidelity bonds held
by Sabacol (including insurer, named insured, type of coverage, limits of
insurance, required deductibles or co-payments, annual premiums and expiration
dates). All such policies are in full force and effect and shall remain in
full force and effect through the Closing Date and are adequate for the
business of Sabacol. Except as disclosed on Schedule 3.9, no pending claims
made by or on behalf of Sabacol under such policies have been denied or are
being defended against third parties under a reservation of rights by an
insurer thereof. All premiums due prior to the date hereof for periods prior
to the date hereof with respect to such policies and contracts have been
timely paid.
3.10 Taxes. To the best of Sabacol's knowledge and except as set forth
in Schedule 3.3, Sabacol has duly filed all federal, state, county, local and
other excise, franchise, property, payroll, income, capital stock, sales and
use and other tax returns, domestic or foreign, that are required to be filed
by it, the absence of which has a Sabacol Material Adverse Effect, and all
such returns are true, correct and complete in all respects. Except as set
forth in Schedule 3.3, Sabacol has paid all taxes which have become due or
have been assessed against it or the Sabacol Assets and all taxes, penalties
and interest which any taxing authority has proposed or asserted to be owing.
Except as set forth in Schedule 3.3, all tax liabilities to which the
properties of Sabacol may have been subjected have been discharged except for
taxes assessed but not yet payable. Except as set forth in Schedule 3.3, there
are no tax claims presently being asserted against Sabacol or the Sabacol
Assets and Sabacol knows of no basis for any such claim. Sabacol has not
granted any extension to any taxing authority of the limitation period during
which any tax liability may be asserted thereby. Schedule 2.2.1 accurately
reflects the Unassumed Tax Liability that Sabacol knows or reasonably knows
has accrued as of the date hereof and the Closing Date.
3.11 Environmental Laws and Regulations. The Sabacol Assets shall be
delivered AS IS WHERE IS without any representation or warranty as to
environmental condition.
3.12 Absence of Certain Changes or Events. Since the Petition Date,
Sabacol has not (i) suffered any extraordinary losses or waived any rights of
substantial value or (ii) suffered any event or circumstance that could have a
Sabacol Material Adverse Effect.
3.13 True, Correct and Complete Information. To the best of Sabacol's
knowledge, all written agreements, lists, schedules, instruments, exhibits,
documents, certificates, reports, statement and other writings furnished to
the Omimex Group pursuant hereto or in connection with this Agreement or the
transactions contemplated hereby are and will be complete and accurate in all
material respects. No representation or warranty by Sabacol contained in this
Agreement, in the schedules attached hereto or in any certificate furnished or
to be furnished by Sabacol to the Omimex Group in connection herewith or
pursuant hereto contains or will contain any untrue statement of a material
fact or omits or will omit to state any material fact necessary in order to
make any statement contained herein or therein not misleading. There is no
fact known to Sabacol that has specific application to the Sabacol Assets
(other than general economic or industry conditions) and that could have a
Sabacol Material Adverse Effect that has not been set forth in this Agreement
or any schedule hereto. Sabacol has not entered into any letter of intent,
preliminary agreement or other contract with any other party that would be
inconsistent with the terms of this Agreement.
3.14 Availability of Documents. Sabacol has made available for
inspection by the Omimex Group at the offices of Sabacol true, correct and
complete copies of Sabacol's Certificate of Incorporation and Bylaws and all
Sabacol Contracts and documents referred to herein or in any Schedule referred
to herein, in each case, together with all amendments and supplements thereto.
3.15 Broker's and Finder's Fees. Sabacol has not made any agreement
with any person or entity, or taken any action which would cause any person or
entity, to become entitled to an agent's, broker's or finder's fee or
commission in connection with the transactions contemplated by this Agreement.
3.16 Solvency. On the Closing Date, the consummation of the sale of the
Sabacol Assets pursuant to the provisions of this Agreement will not render
Sabacol without sufficient assets to pay any and all liabilities and will not
adversely affect Sabacol's ability to pay debts as they become due and owning.
Immediately after the transfers contemplated by this Agreement, Sabacol will
have the ability to pay both its past due debts and its current debts as they
become due and owing. Further, the transfers contemplated by this Agreement
will not render the value of Sabacol's combined assets less than the value of
Sabacol's liabilities.
3.17 Debts.Schedule 3.17 accurately reflects all debts and liabilities
that (i) Sabacol has incurred in the ordinary course of its business and are
outstanding, (ii) individually, exceed $1,000 and (iii) arose (a) prior to the
Effective Time (except the Assumed Tax Liability, the Unassumed Tax Liability
and the Sabacol Indebtedness) or (b) on and after the Effective Time through
the Closing Date (except the Assumed Sabacol Liabilities) (collectively, the
"Schedule 3.17 Debt"). The Schedule 3.17 Debt shall (i) include, without
limitation, the amount of such debts, the persons or entities to whom these
debts are owed and the nature of these debts and (ii) not include the Assumed
Tax Liability, the Unassumed Tax Liability, the Sabacol Indebtedness and legal
and other professional fees and expenses that Sabacol incurs (a) in connection
with the Bankruptcy Case or (b) in the negotiation, execution and performance
of this Agreement.
3.18 Condition of OPI Assets. SUBJECT TO THE REPRESENTATIONS,
WARRANTIES AND COVENANTS HEREIN PROVIDED, SABACOL ACCEPTS THE OPI ASSETS AND
SABACOL INDEBTEDNESS AS IS, WHERE IS, IN THEIR PRESENT CONDITION AND STATE OF
REPAIR, AND WITHOUT ANY REPRESENATIONS, GUARANTIES OR WARRANTIES, EXPRESS OR
IMPLIED, AS TO VALUE, QUALILTY, MERCHANTABILITY, OR THEIR SUITABILITY OR
FITNESS FOR SABACOL'S INTENDED USE OR FOR ANY USES OR PURPOSES WHATSOEVER, OR
THAT SAID INTERESTS HAVE BEEN RENDERED FREE OF ANY DEFECTS, HAZARDS OR
DANGEROUS CONDITIONS.
3.19 Actual Knowledge. The parties acknowledge that the ODC has been
the operator of the Sabacol Assets. For purposes of this Article III,
"knowledge" shall be defined as the actual knowledge of Sabacol.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE OMIMEX GROUP
Each member of the Omimex Group, jointly and severally, represents and
warrants to Sabacol as follows:
4.1 Due Organization and Qualification. Each of the Omimex Group is a
corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation, and has all requisite corporate power
and authority to own, lease or operate its properties and to carry on its
business as it is presently being operated and in the place where such
properties are owned, leased or operated and such business is conducted. Each
of the Omimex Group is duly qualified or licensed as a foreign corporation and
in good standing in each jurisdiction in which the character or location of
the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except where the failure
to be so qualified or licensed would not have a material adverse effect on the
business, operations, properties, assets or condition (financial or
otherwise), results of operations or prospects of OPI or the OPI Assets (an
"OPI Material Adverse Effect") or any other member of Omimex Group or its
assets.
4.2 Title. OPI has, and upon conveyance of the OPI Assets to Sabacol by
OPI at the Closing, Sabacol will acquire and hold, good and marketable title
to all of the OPI Assets, free and clear of any and all Encumbrances, except
as set forth on Schedule 4.2.
4.3 Compliance with Laws. To the best of its knowledge, each of the
Omimex Group has complied with all laws, regulations, licensing requirements
and orders applicable to its business or personnel, except as set forth in
Schedule 4.3.
4.4 Contracts. Set forth on Schedule 4.4 is a true, correct and
complete list of all contracts, leases, arrangements and commitments (whether
oral or written) (copies of which, to the extent written, have been provided
to Sabacol) by which any of the OPI Assets are directly affected or are bound,
except those to which Sabacol is a party (the "OPI Contracts").
4.5 Contract Defaults. Neither any member of the Omimex Group nor, to
the best of the Omimex Group's knowledge, any other party is in default in any
material respect under any OPI Contract, and such OPI Contracts are legal,
valid and binding obligations of the respective parties thereto in accordance
with their terms and, except to the extent reflected in Schedule 4.5, have not
been amended; and no defenses, offsets or counterclaims thereto have been
asserted or to the best knowledge of OPI, may be made which could have an OPI
Material Adverse Effect, by any party thereto other than OPI nor has OPI
waived any substantial rights thereunder.
4.6 Litigation. Set forth on Schedule 4.6 is a true, correct and
complete list of all actions, suits, proceedings, investigations or grievances
pending against each of the Omimex Group or, to the best knowledge of each of
the Omimex Group, threatened against the Omimex Group or the OPI Assets, at
law or in equity or before or by any Agency. None of the actions, suits,
proceedings or investigations listed on Schedule 4.6 either (i) has or would
have, if adversely determined, an OPI Material Adverse Effect or (ii) affects
or would affect, if adversely determined, the right or ability of each of the
Omimex Group to carry on its business substantially as now conducted. No
member of the Omimex Group is subject to, or in default under, any continuing
court or Agency order, writ, injunction or decree, which could have an OPI
Material Adverse Effect.
4.7 Corporate Power and Authority. The execution, delivery and
performance of this Agreement by each of the Omimex Group, and all other
agreements by and among the parties related herewith, and the consummation by
it of the transactions contemplated hereby and thereby, have been duly
authorized by all requisite corporate action and no further action or approval
is required in order to permit each of the Omimex Group to consummate the
transactions contemplated hereby and thereby. This Agreement constitutes, and
all other agreements by and among the parties related herewith, when executed
and delivered in accordance with the terms thereof, will constitute the legal,
valid and binding obligations of each of the Omimex Group, enforceable in
accordance with their terms, except for the Equitable Exceptions. Each member
of the Omimex Group has full power, authority and legal right to enter into
this Agreement, and all other agreements by and among the parties related
herewith, and to consummate the transactions contemplated hereby and thereby.
The making and performance of this Agreement, and all other agreements by and
among the parties related herewith, and the consummation of the transactions
contemplated hereby and thereby in accordance with the terms hereof and
thereof will not (a) conflict with the Certificate of Incorporation or the
Bylaws of each of the Omimex Group, (b) result in any breach or termination
of, or constitute a default under, or constitute an event that with notice or
lapse of time, or both, would become a default under, or result in the
creation of any Encumbrance upon any of the OPI Assets under, or create any
rights of termination, cancellation or acceleration in any person under, any
OPI Contract, or violate any order, writ, injunction or decree, to which each
of the Omimex Group is a party, by which any of the OPI Assets, business or
operations of each of the Omimex Group may be bound or affected or under which
any of the OPI Assets receive benefits, (c) result in the loss or adverse
modification of any OPI material permits, licenses or concessions or (d)
result in the violation of any provisions of law applicable to OPI, the
violation of which could have an OPI Material Adverse Effect on any of the
Omimex Group.
4.8 Consents. Except as set forth on Schedule 4.8, no consent,
approval, notice to, registration or filing with, authorization or order of,
any court or other Agency or any other person or under any OPI Contract is
required in order to permit each of the Omimex Group to consummate the
transactions contemplated by this Agreement.
4.9 Insurance. OPI is adequately insured with responsible insurers in
respect of its properties against business risks normally insured against by
companies in similar lines of business. Set forth on Schedule 4.9 attached
hereto is an accurate list description of all policies and contracts of fire,
casualty, liability and other forms of insurance and all fidelity bonds held
by OPI (including insurer, named insured, type of coverage, limits of
insurance, required deductibles or co-payments, annual premiums and expiration
dates). All such policies are in full force and effect and shall remain in
full force and effect through the Closing Date and are adequate for the
business of OPI. Except as disclosed on Schedule 4.9, no pending claims made
by or on behalf of OPI under such policies have been denied or are being
defended against third parties under a reservation of rights by an insurer
thereof. All premiums due prior to the date hereof for periods prior to the
date hereof with respect to such policies and contracts have been timely paid.
4.10 Taxes. To the best of the knowledge of each of the Omimex Group,
each of the Omimex Group has duly filed all federal, state, county, local and
other excise, franchise, property, payroll, income, capital stock, sales and
use and other tax returns that are required to be filed by it, the absence of
which has an OPI Material Adverse Effect, and all such returns are true,
correct and complete in all respects. Each of the Omimex Group has paid all
taxes which have become due or have been assessed against it or the OPI Assets
and all taxes, penalties and interest which any taxing authority has proposed
or asserted to be owing. All tax liabilities to which the properties of each
of the Omimex Group may have been subjected have been discharged except for
taxes assessed but not yet payable. There are no tax claims presently being
asserted against each of the Omimex Group or the OPI Assets and each of the
Omimex Group knows of no basis for any such claim. No member of the Omimex
Group has granted any extension to any taxing authority of the limitation
period during which any tax liability may be asserted thereby.
4.11 Environmental Laws and Regulations. The OPI Assets shall be
delivered AS IS WHERE IS without any representation or warranty as to
environmental condition, except with respect to the Belridge Property as set
forth in Section 4.19.
4.12 Absence of Certain Changes or Events. Since December 31, 1998, OPI
has not (i) suffered any extraordinary losses or waived any rights of
substantial value or (ii) suffered any event or circumstance that could have
an OPI Material Adverse Effect.
4.13 True, Correct and Complete Information. To the best knowledge of
each of the Omimex Group, all written agreements, lists, schedules,
instruments, exhibits, documents, certificates, reports, statement and other
writings furnished to Sabacol pursuant hereto or in connection with this
Agreement or the transactions contemplated hereby are and will be complete and
accurate in all material respects. No representation or warranty by any of
the Omimex Group contained in this Agreement, in the schedules attached hereto
or in any certificate furnished or to be furnished by any of the Omimex Group
to Sabacol in connection herewith or pursuant hereto contains or will contain
any untrue statement of a material fact or omits or will omit to state any
material fact necessary in order to make any statement contained herein or
therein not misleading. There is no fact known to any of the Omimex Group
that has specific application to the OPI Assets (other than general economic
or industry conditions) and that could have an OPI Material Adverse Effect
that has not been set forth in this Agreement or any schedule hereto. Each of
the Omimex Group has not entered into any letter of intent, preliminary
agreement or other contract with any other party that would be inconsistent
with the terms of this Agreement.
4.14 Availability of Documents. Each of the Omimex Group has made
available for inspection by Sabacol at the offices of ORI true, correct and
complete copies of OPI's Certificate of Incorporation and Bylaws and all OPI
Contracts and documents referred to herein or in any Schedule referred to
herein, in each case, together with all amendments and supplements thereto.
4.15 Broker's and Finder's Fees. No member of the Omimex Group has made
any agreement with any person, or taken any action which would cause any
person, to become entitled to an agent's, broker's or finder's fee or
commission in connection with the transactions contemplated by this Agreement.
4.16 Solvency. On the Closing Date, the consummation of the sale of the
OPI Assets pursuant to the provisions of this Agreement will not render any
member of the Omimex Group without sufficient assets to pay any and all of its
liabilities and will not adversely affect its ability to pay debts as they
become due and owning. Immediately after the transfers contemplated by this
Agreement, each of the Omimex Group will have the ability to pay both its past
due debts and its current debts as they become due and owing. Further, the
transfers contemplated by this Agreement will not render the value of combined
assets of each of the Omimex Group less than the value of its liabilities.
4.17 Condition of Sabacol Assets. SUBJECT TO THE REPRESENTATIONS,
WARRANTIES AND COVENANTS HEREIN PROVIDED, ODC ACCEPTS THE SABACOL ASSETS AS
IS, WHERE IS, IN THEIR PRESENT CONDITION AND STATE OF REPAIR, AND WITHOUT ANY
REPRESENATIONS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AS TO VALUE,
QUALILTY, MERCHANTABILITY, OR THEIR SUITABILITY OR FITNESS FOR ODC'S INTENDED
USE OR FOR ANY USES OR PURPOSES WHATSOEVER, OR THAT SAID INTERESTS HAVE BEEN
RENDERED FREE OF ANY DEFECTS, HAZARDS OR DANGEROUS CONDITIONS.
4.18 Actual Knowledge. The parties acknowledge that the Saba Petroleum,
Inc. has been the operator of the OPI Assets, except for the Belridge
Property. For purposes of this Article IV, "knowledge" shall be defined as
the actual knowledge of the Omimex Group.
4.19 Additional Representations and Warranties with respect to the
Belridge Property. To the best of OPI's knowledge:
(a) All royalties, rentals and other payments due by OPI under
the OPI Contracts relating to the Belridge Property have been properly and
timely paid, and all conditions necessary to keep such OPI Contracts in force
have been fully performed by OPI.
(b) OPI is not obligated, by virtue of a prepayment arrangement,
a "take or pay" arrangement, a production payment or any other arrangement, to
deliver hydrocarbons produced from the Belridge Property at some future time
without then or thereafter receiving fully payment therefor.
(c) Except for the OPI Contracts under which the OPI is
presently selling production, no hydrocarbons produced from the Belridge
Property are subject to a sales contract or other agreement relating to the
production, gathering, transporting, processing, treating or marketing of
hydrocarbons, and no person has any call upon, option to purchase or similar
rights with respect to the Belridge Property or to the production therefrom.
(d) All ad valorem, property, production, severance, excise and
similar taxes and assessments based on or measured by the ownership of
property or the production of hydrocarbons or the receipt of proceeds
therefrom on the Belridge Property that have become due and payable by OPI
have been properly and timely paid.
(e) OPI is currently receiving from all purchasers of production
from the Belridge Property at least the net revenue interests set forth on
Schedule 1.2.1.1 without suspense or any indemnity other than standard
division order warranties.
(f) OPI is in material compliance with all laws, ordinances,
rules, regulations and orders applicable to the Belridge Property, including,
without limitation, environmental laws, except to the extent of any
non-compliance that is not reasonably expected to result in an OPI Material
Adverse Effect.
(g) No portion of the Belridge Property is either overproduced
or underproduced in natural gas under any gas balancing agreement or gas
storage agreement or in regard to any well, pooling unit or unitilized area
without such agreement.
(h) No portion of the Belridge property is subject to a consent
to assignment or preferential right to purchase, except as to Saba Petroleum,
Inc. pursuant to that certain Operating Agreement dated November 1, 1993
between OPI and Saba Petroleum, Inc..
ARTICLE V
COVENANTS OF SABACOL
Sabacol covenants and agrees with the Omimex Group as follows:
5.1 Affirmative Covenants. Prior to the Closing, Sabacol will operate
its business only in the usual, regular and ordinary course of business
consistent with good business practices, and will use its best efforts to:
(i) preserve intact its business organization and the Sabacol Assets; (ii)
maintain its properties, machinery and equipment in good operating condition
and repair; (iii) continue all existing policies of insurance (or comparable
insurance) in full force and effect up to and including the Closing (and will
not cancel any such insurance or take (or fail to take) any action that would
enable the insurers under such policies to avoid liability for claims arising
out of any occurrence prior to the Closing without the prior written consent
of the Omimex Group); (iv) use its best efforts to preserve its present
relationships with lending and other financial institutions, domestic and
foreign Agencies, suppliers and customers; and (v) maintain its books,
accounts and records in the usual, regular and ordinary manner on a basis
consistently applied. Sabacol will promptly notify the Omimex Group in
writing of learning of any fact, event or circumstance that is reasonably
likely to have a Sabacol Material Adverse Effect.
5.2 Negative Covenants. Prior to the Closing, Sabacol will operate its
business only in the usual, regular and ordinary course of business consistent
with good business practices, and will not, without the prior written consent
of the Omimex Group, take any action that, or omit to take any action, the
absence of which, would have a Sabacol Material Adverse Effect.
5.3 Access to Properties and Records. Sabacol will keep the Omimex
Group advised of all material developments relevant to the consummation of the
transactions contemplated hereby and will cooperate fully in permitting the
Omimex Group to make a full investigation of the business, properties,
financial condition and investments of Sabacol during regular business hours
and upon reasonable notice and in bringing about the consummation of the
transactions contemplated hereby. Sabacol will, during regular business hours
and upon reasonable notice, afford to the Omimex Group and its representatives
full access to the offices, buildings, real properties, machinery and
equipment, inventory and supplies, records, files, books of account, tax
returns, agreements and commitments, corporate record books and stock books
and personnel of Sabacol, and will permit the Omimex Group and its
representatives to contact and interview Sabacol's personnel, suppliers,
vendors, referral sources and any other persons that the Omimex Group shall
reasonably determine to be necessary for it to make a full investigation of
Sabacol's business. Sabacol will furnish to the Omimex Group all such further
information concerning the business and affairs of Sabacol as the Omimex Group
may reasonably request. Prior to the Closing Date, Sabacol will update by
amendment or supplement each of the Schedules referred to herein and any other
disclosure in writing from Sabacol required by this Agreement to be disclosed
in writing by Sabacol to the Omimex Group promptly upon any change in the
information set forth in such Schedules or other disclosures. No
investigation pursuant to this Section 5.3 shall affect any representations or
warranties or the conditions to the obligations of the Omimex Group to
consummate the transactions contemplated hereby. In the event of the
termination of this Agreement, the Omimex Group will deliver to Sabacol all
documents, work papers and other material (including copies thereof) obtained
by the Omimex Group or on its behalf from Sabacol as a result of this
Agreement or in connection herewith, whether so obtained before or after the
execution hereof and, if the transactions contemplated hereby are not
consummated, the Omimex Group will hold such information in confidence until
such time as such information is otherwise publicly available.
5.4 Employees of Sabacol. Sabacol shall be responsible for all claims
made by its employees for wages, salaries, bonuses, pension, workmen's
compensation, medical insurance, disability, vacation, severance, pay in lieu
of notice, sick benefits or other compensation or benefit arrangements in
respect of the service of such employees prior to the Closing Date and any
termination of such employees. If Sabacol terminates any such employees, ODC
may, but is not obligated to, hire such terminated employees on such terms and
conditions as ODC shall determine in its sole discretion.
5.5 Approvals of Third Parties. As soon as practicable after the date
hereof, Sabacol will use its best efforts to secure all necessary consents,
approvals and clearances of third parties that shall be required to consummate
the transactions contemplated hereby and will otherwise use its best efforts
to cause the consummation of such transactions in accordance with the terms
and conditions of this Agreement.
5.6 Notices. Sabacol will timely give all notices required to be given
relating to the transactions contemplated hereby, including without
limitation, (i) notices to employees, (ii) any notices required or requested
to be given to all creditors and claimants against Sabacol and (iii) any
notices required or requested to be given pursuant to applicable bulk sales
laws or similar laws.
5.7 Access to Books and Records. Sabacol agrees to provide the Omimex
Group, its accountants, counsel and other representatives, during normal
business hours and upon reasonable notice, for a period of seven (7) years
after the Closing Date, access to the books, records, income tax returns,
contracts and other underlying data and documentation of Sabacol relating to
the period prior to the Closing Date and to make available to the Omimex Group
personnel of Sabacol in the Omimex Group's review thereof for the purpose of
enabling them to determine and calculate any tax liabilities in connection
with the Sabacol Assets. Sabacol agrees that, for such seven (7) year period,
it will preserve and keep intact all such books and records.
5.8 No Solicitation of Offers. Until the earlier of the (i) termination
of this Agreement in accordance with its terms or (ii) the consummation of the
transactions contemplated hereby, except in the exercise of the good faith
judgement of the board of directors of Sabacol as to the fiduciary duties to
its stockholders imposed by law, on the basis of written advice given by
outside counsel, Sabacol shall not, directly or indirectly, through any
officer, director, stockholder, employee, representative, agent or affiliate,
solicit, entertain, encourage, assist (including by way of furnishing
nonpublic information) or take other action, either directly or indirectly, to
facilitate any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to an Acquisition Proposal (as defined below)
from any person or entity, or engage in any discussions or negotiations
relating thereto or in furtherance thereof or accept any Acquisition Proposal.
For purposes of this Agreement, "Acquisition Proposal" means any inquiries or
proposals regarding (i) any merger, consolidation, sale of substantial assets
or similar transactions involving Sabacol or any of its subsidiaries (other
than sales of assets or inventory in the ordinary course of business), (ii)
purchase of 20% or more of the outstanding shares of capital stock of Sabacol
(including, without limitation, by way of a tender offer or an exchange offer)
or similar transactions involving Sabacol or any of its subsidiaries, (iii)
the acquisition by any person or entity of beneficial ownership or a right to
acquire beneficial ownership of, or the formation of any "group" (as defined
under Section 13(d) of the Securities Exchange Act of 1934 and the rules and
regulations thereunder) which beneficially owns, or has the right to acquire
beneficial ownership of 20% or more of the then outstanding shares of capital
stock of Sabacol or (iv) any public announcement of a proposal, plan or
intention to do any of the foregoing or any agreement to engage in any of the
foregoing. The Omimex Group hereby acknowledges that Saba and Horizontal
Ventures, N.V. intend to enter into a business combination and such
combination shall not constitute an Acquisition Proposal or violate this
Section 5.8.
Sabacol shall immediately cease and cause to be terminated any existing
discussions or negotiations with any parties (other than the Omimex Group)
conducted currently or prior to the date of this Agreement with respect to an
Acquisition Proposal.
In the event that Sabacol receives or knows of an offer or proposal to
enter negotiations relating to an Acquisition Proposal, Sabacol shall
immediately notify the Omimex Group thereof, including information as to the
identity of the offeror or the party making any such offer or proposal and the
principal financial terms and conditions of such offer or proposal, as the
case may be.
5.9 Bankruptcy Matters
1. Motion for Approval. Within five (5) business days after the
date hereof, Sabacol shall file a written motion (the "Motion for Approval")
in a form reasonably acceptable to the Omimex Group requesting the Bankruptcy
Court to approve this Agreement and to enter a written order (the "Bankruptcy
Approval Order") that orders, among other things, that:
a. The terms and conditions of this Agreement, all
Exhibits, Schedules and ancillary agreements to this Agreement, including,
without limitation, the Escrow Agreement, Sections 5.8 and 11.3 and the
transactions contemplated hereby, are approved in accordance with the
Bankruptcy Code, including 11 U.S.C. section 363(b) and (f);
b. The Omimex Group is a good faith purchaser for value of
the Sabacol Assets under 11 U.S.C. section 363(m);
c. The Escrow Agent is authorized to make the transfers
required under the Escrow Agreement and any stay imposed upon the Escrow Agent
under 11 U.S.C. section 362(a) is terminated with respect to the obligations
imposed under the Escrow Agreement;
d. The Omimex Group's purchase of the Sabacol Assets be
free and clear of all Encumbrances whatsoever (except for those expressly
assumed herein) that pre-date the conveyance of the Sabacol Assets to ODC in
accordance with 11 U.S.C. section 363(f);
e. Any claim by the Omimex Group against Sabacol arising
under the terms of this Agreement, including, without limitation, the Omimex
Losses and any attorney and other fees recoverable with respect to such
claims, be accorded priority status as a Chapter 11 administrative expense in
the Bankruptcy Case, in accordance with 11 U.S.C. sections 503(b) and 507(a)(1);
f. ODC assume and undertake only the Assumed Sabacol
Liabilities and, if ODC makes an Assumption Election, the Assumed Tax
Liability. No member of the Omimex Group shall be liable or obligated to any
third party for the liabilities or obligations of Sabacol to such third party
by virtue of having purchased the Sabacol Assets other than the Assumed
Sabacol Liabilities and, if ODC makes on Assumption Election, the Assumed Tax
Liability;
g. Sabacol timely cure any and all defaults under the
Sabacol Contracts as of the Closing Date;
h. Sabacol assume and assign the Sabacol Contracts to the
Omimex Group under 11 U.S.C. section 365;
i. All stipulations of the parties herein are approved; and
j. This Agreement and the transactions contemplated hereby
shall remain in full force and effect and binding on the parties hereto upon
dismissal of the Bankruptcy Case.
Sabacol shall use its reasonable best efforts to obtain, and the Omimex
Group shall fully cooperate with Sabacol to obtain, (i) a hearing on the
Motion for Approval (the "Approval Hearing") as soon as possible after Sabacol
files the Motion for Approval or such other time to which the parties mutually
agree and (ii) entry of (a) the Bankruptcy Approval Order, including, without
limitation, providing notice to creditors and other parties in interest in
accordance with the Bankruptcy Code and (b) an order that Sabacol may not file
any voluntary petition seeking bankruptcy relief under Title 11 of the United
States Code within 91 days after the Closing Date. Sabacol shall oppose the
Bankruptcy Court's consideration of any Acquisition Proposal until the earlier
of (i) termination of this Agreement in accordance with its terms or (ii)
consummation of the transactions contemplated hereby.
2. Notice. Sabacol shall cause notice of the Motion for Approval
and any other motion or notice concerning this Agreement to be made in
accordance with the Bankruptcy Code and applicable case law. The Omimex Group
is permitted to cause any notice concerning this Agreement to be served upon
any person or entity.
5.10 Capital Commitments. Except with respect to the Assumed Sabacol
Liabilities, Sabacol covenants and agrees that it will be liable for and will
promptly pay for (i) all capital improvements to the Sabacol Assets completed
prior to or in progress but unpaid at the Effective Time and (ii) all assets
or properties delivered to Sabacol but unpaid at the Effective Time; provided,
however, that Sabacol shall not be liable for the cost of installing any such
assets or properties if they are installed after the Effective Time.
5.11 Release of Financing Statements. Sabacol shall obtain and file in
the appropriate jurisdictions termination statements properly executed by any
parties holding a security interest or other Encumbrance with respect to the
Sabacol Assets as identified by lien searches conducted with respect to
Sabacol and the Sabacol Assets.
5.12 Colombian Execution Procedure.
5.12.1 Within five (5) business days after the date of this
Agreement, Sabacol shall prepare, execute and deliver to Empresa Colombiana de
Petroleos ("Ecopetrol") a written request for approval in principle (the
"Ecopetrol Approval") of the assignment and transfer to ODC of all of
Sabacol's right, title and interest in the Cocorna Association Agreement and
the Nare Association Agreement, both dated on or about September 30, 1980
among Ecopetrol, Texas Petroleum Company, ODC and Sabacol, as amended
(collectively, the "Association Agreements").
5.12.2 Within five (5) business days after the later of the date of
the Bankruptcy Approval Order or receipt of the Ecopetrol Approval, Sabacol
and ODC shall prepare, execute and deliver to Ecopetrol assignment documents
(the "Ecopetrol Assignment Documents") in which Sabacol assigns its right,
title and interest in the Association Agreements to ODC.
5.12.3 At the Closing, Sabacol and ODC shall prepare, execute and
deliver to the appropriate Colombian notary public and Colombian governmental
authorities the public deeds and other documents and instruments necessary to
transfer all of Sabacol's right, title and interest in the Association
Agreements to ODC.
ARTICLE VI
COVENANTS OF THE OMIMEX GROUP
Each of the Omimex Group covenants and agrees with Sabacol as follows:
6.1 Affirmative Covenants. Prior to the Closing, OPI will operate its
business only in the usual, regular and ordinary course of business consistent
with good business practices, and will use its best efforts to: (i) preserve
intact its business organization and the OPI Assets; (ii) maintain its
properties, machinery and equipment in good operating condition and repair;
(iii) continue all existing policies of insurance (or comparable insurance) in
full force and effect up to and including the Closing Date (and will not
cancel any such insurance or take (or fail to take) any action that would
enable the insurers under such policies to avoid liability for claims arising
out of any occurrence prior to the Closing Date without the prior written
consent of Sabacol); (iv) use its best efforts to preserve its present
relationships with lending and other financial institutions, domestic and
foreign Agencies, suppliers and customers; and (v) maintain its books,
accounts and records in the usual, regular and ordinary manner on a basis
consistently applied. The Omimex Group will promptly notify Sabacol in
writing of learning of any fact, event or circumstance that is reasonably
likely to have an OPI Material Adverse Effect.
6.2 Negative Covenants. Prior to the Closing, OPI will operate its
business only in the usual, regular and ordinary course of business consistent
with good business practices, and will not, without the prior written consent
of Sabacol, take any action that, or omit to take any action, the absence of
which, would have an OPI Material Adverse Effect.
6.3 Access to Properties and Records. The Omimex Group will keep
Sabacol advised of all material developments relevant to the consummation of
the transactions contemplated hereby and will cooperate fully in permitting
Sabacol to make a full investigation of the business, properties, financial
condition and investments of each of the Omimex Group during regular business
hours and upon reasonable notice and in bringing about the consummation of the
transactions contemplated hereby. OPI will, during regular business hours and
upon reasonable notice, afford to Sabacol and its representatives full access
to the offices, buildings, real properties, machinery and equipment, inventory
and supplies, records, files, books of account, tax returns, agreements and
commitments, corporate record books and stock books and personnel of OPI, and
will permit Sabacol and its representatives to contact and interview OPI
personnel, suppliers, vendors, referral sources and any other persons that
Sabacol shall reasonably determine to be necessary for it to make a full
investigation of its business. OPI will furnish to Sabacol all such further
information concerning the business and affairs of OPI as Sabacol may
reasonably request. Prior to the Closing Date, the Omimex Group will update
by amendment or supplement each of the Schedules referred to herein and any
other disclosure in writing from Sabacol required by this Agreement to be
disclosed in writing by the Omimex Group to Sabacol promptly upon any change
in the information set forth in such Schedules or other disclosures. No
investigation pursuant to this Section 6.3 shall affect any representations or
warranties or the conditions to the obligations of Sabacol to consummate the
transactions contemplated hereby. In the event of the termination of this
Agreement, Sabacol will deliver to the Omimex Group all documents, work papers
and other material (including copies thereof) obtained by Sabacol or on their
behalf from the Omimex Group as a result of this Agreement or in connection
herewith, whether so obtained before or after the execution hereof and, if the
transactions contemplated hereby are not consummated, Sabacol will hold such
information in confidence until such time as such information is otherwise
publicly available.
6.4 Employees of Omimex Group. OPI shall be responsible for all claims
made by its employees for wages, salaries, bonuses, pension, workmen's
compensation, medical insurance, disability, vacation, severance, pay in lieu
of notice, sick benefits or other compensation or benefit arrangements in
respect of the service of such employees prior to the Closing Date and any
termination of such employees. If OPI terminates any such employee, Sabacol
may, but is not obligated to, hire such terminated employees on such terms and
conditions as Sabacol shall determine in its sole discretion.
6.5 Approvals of Third Parties. As soon as practicable after the date
hereof, each of the Omimex Group will use its best efforts to secure all
necessary consents, approvals and clearances of third parties that shall be
required to consummate the transactions contemplated hereby and will otherwise
use its best efforts to cause the consummation of such transactions in
accordance with the terms and conditions of this Agreement.
6.6 Notices. The Omimex Group will timely give all notices required to
be given relating to the transactions contemplated hereby, including without
limitation, (i) notices to employees, (ii) any notices required or requested
to be given to all creditors and claimants against the Omimex Group and (iii)
any notices required or requested to be given pursuant to applicable bulk
sales laws or similar laws.
6.7 Access to Books and Records. OPI agrees to provide Sabacol, its
accountants, counsel and other representatives, during normal business hours
and upon reasonable notice, for a period of seven (7) years after the Closing
Date, access to the books, records, income tax returns, contracts and other
underlying data and documentation of OPI relating to the period prior to the
Closing Date and to make available to Sabacol personnel of OPI in Sabacol's
review thereof for the purpose of enabling them to determine and calculate any
tax liabilities in connection with the OPI Assets. OPI agrees that, for such
seven-year period, it will preserve and keep intact all such books and
records.
6.8 Capital Commitments. Except with respect to Assumed OPI
Liabilities, the Omimex Group covenants and agrees that it will be liable for
and will promptly pay for (i) all capital improvements to the OPI Assets
completed prior to or in progress but unpaid at the Effective Time and (ii)
all assets or properties delivered to OPI but unpaid at the Effective Time
(except the Note); provided, however, that the Omimex Group shall not be
liable for the cost of installing any such assets or properties if they are
installed after the Effective Time.
6.9 Release of Financing Statements. The Omimex Group shall obtain and
file in the appropriate jurisdictions termination statements properly executed
by any parties holding a security interest or other Encumbrance with respect
to the OPI Assets as identified by lien searches conducted with respect to OPI
and the OPI Assets.
6.10 Colombian Execution Procedure.
6.10.1 Within five (5) business days after the later of the date of
the Bankruptcy Approval Order or receipt of the Ecopetrol Approval, Sabacol
and ODC shall prepare, execute and deliver to Ecopetrol the Ecopetrol
Assignment Documents in which Sabacol assigns its right, title and interest in
the Association Agreements to ODC.
6.10.2 At the Closing, Sabacol and ODC shall prepare, execute and
deliver to the appropriate Colombian notary public and Colombian governmental
authorities the public deeds and other documents and instruments necessary to
transfer all of Sabacol's right, title and interest in the Association
Agreements to ODC.
6.10.3 ODC shall fully cooperate with Sabacol in performing its
covenants under Section 5.12.1.
6.11 Dismissal of Bankruptcy Case. The Omimex Group shall not object to
the dismissal of the Bankruptcy Case, which shall be without prejudice to the
Omimex Group's standing or right to seek the dismissal of the Bankruptcy Case.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE OMIMEX GROUP
The obligations of the Omimex Group to cause the transactions
contemplated hereby to occur at Closing shall be subject to the satisfaction
on or prior to the Closing Date of all of the following conditions, except
such conditions as the Omimex Group may waive in writing:
7.1 Representations and Warranties. All of the representations and
warranties of Sabacol contained in this Agreement and in any schedule or
other disclosure in writing from Sabacol shall have been true and correct when
made, and shall be true and correct on and as of the Closing Date, with the
same force and effect as though such representations and warranties had been
made on and as of the Closing Date.
7.2 Covenants. All of the covenants and agreements herein on the part
of Sabacol to be complied with or performed on or before the Closing Date
shall have been fully complied with and performed.
7.3 Certificate. There shall be delivered to Omimex a certificate dated
as of the Closing Date and signed by the Chief Executive Officer of Sabacol to
the effect set forth in Sections 7.1 and 7.2, which certificate shall have the
effect of a representation and warranty made by Sabacol on and as of the
Closing Date.
7.4 Certificates of Authorities. Sabacol shall have furnished to Omimex
(i) certificates of the Secretary of State of Delaware dated as of a date not
more than twenty (20) days prior to the Closing Date, attesting to the
organization, existence and good standing of Sabacol, (ii) a copy, certified
by the Secretary of State of Delaware as of a date not more than twenty (20)
days prior to the Closing Date, of Sabacol's Certificate of Incorporation and
all amendments thereto, (iii) a copy, certified by the Secretary of Sabacol,
of the Bylaws of Sabacol, as amended and in effect at the Closing Date, (iv) a
copy, certified by an authorized officer of Sabacol, of resolutions duly
adopted by the Board of Directors of Sabacol duly authorizing the transactions
contemplated in this Agreement and (v) a copy, certified by an authorized
officer of Sabacol, of resolutions duly adopted by stockholders of Sabacol
duly authorizing the transactions contemplated in this Agreement.
7.5 Litigation. At the Closing Date, there shall not be pending or
threatened any litigation in any court or any proceeding before any Agency,
including, without limitation, the Bankruptcy Court, (i) in which it is sought
to restrain, invalidate, set aside or obtain damages in respect of the
consummation of the purchase and sale of the Sabacol Assets or the other
transactions contemplated hereby, (ii) that could, if adversely determined,
result in any Sabacol Material Adverse Effect or (iii) as a result of which,
in the reasonable judgment of the Omimex Group, the Omimex Group would be
deprived of the material benefits of its ownership of the Sabacol Assets.
7.6 Satisfactory to the Omimex Group's Counsel. All actions,
proceedings, instruments and documents required to carry out this Agreement or
incidental thereto and all other related matters shall have been satisfactory
to ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Dallas, Texas, counsel for the Omimex Group.
7.7 No Material Adverse Effect. There shall not be existing at the
Closing any Sabacol Material Adverse Effect. The Omimex Group shall receive a
certificate from the Chief Executive Officer of Sabacol, dated as of the
Closing Date and in form and substance satisfactory to the Omimex Group, as to
the fulfillment of the conditions set forth in this Section 7.7.
7.8 Consents. Sabacol shall have obtained all orders, approvals,
estoppel certificates, releases or consents of third parties, including,
without limitation, (i) any orders, approvals, certificates or consents deemed
necessary by counsel to the Omimex Group that shall be required to consummate
the transactions contemplated hereby and (ii) all required consents,
authorizations, approvals and releases of Ecopetrol and DIAN to the transfer
of the Sabacol Assets from Sabacol to ODC.
7.9 Further Assurances. Sabacol shall take all such further action as
may be reasonably requested by the Omimex Group in order to effectuate the
consummation of the transactions contemplated by this Agreement. If the
Omimex Group shall reasonably determine that any further conveyance,
assignment or other document or any further action (which does not involve
significant expense, except legal and notary fees) is necessary to vest in it
full title to the Sabacol Assets, Sabacol shall cause the appropriate officers
to execute and deliver all such instruments and take all such action as the
Omimex Group may reasonably determine to be necessary.
7.10 Bankruptcy Approval. The obligations of the parties to fulfill
their respective obligations under this Agreement is contingent upon entry of
the Bankruptcy Approval Order by the Bankruptcy Court.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SABACOL
The obligations of Sabacol to cause the transactions contemplated hereby
to occur at Closing shall be subject to the satisfaction on or prior to the
Closing Date of all of the following conditions, except such conditions as
Sabacol may waive in writing:
8.1 Representations and Warranties of Omimex Group. All of the
representations and warranties of the Omimex Group contained in this Agreement
and in any schedule or other disclosure in writing from the Omimex Group shall
have been true and correct when made, and shall be true and correct on and as
of the Closing Date, with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date.
8.2 Covenants of Omimex Group. All of the covenants and agreements
herein on the part of the Omimex Group to be complied with or performed on or
before the Closing Date shall have been fully complied with and performed.
8.3 Certificate. There shall be delivered to Sabacol a certificate
dated as of the Closing Date and signed by the President or a Vice President
of each of the Omimex Group to the effect set forth in Sections 8.1 and 8.2,
which certificate shall have the effect of a representation and warranty made
by each of the Omimex Group on and as of the Closing Date.
8.4 Certificates of Authorities. Each of the Omimex Group shall have
furnished to Sabacol (i) certificates of the Secretaries of State of Delaware
and Colorado, each dated as of a date not more than twenty (20) days prior to
the Closing Date, attesting to the organization, existence and good standing
of each of the Omimex Group, (ii) a copy, certified by the Secretaries of
State of Delaware and Colorado as of a date not more than twenty (20) days
prior to the Closing Date, of each of the Omimex Group's Certificate of
Incorporation and all amendments thereto, (iii) a copy, certified by the
Secretary of each of the Omimex Group, of the Bylaws of each of the Omimex
Group, as amended and in effect at the Closing Date and (iv) a copy, certified
by an authorized officer of each of the Omimex Group, of resolutions duly
adopted by the Board of Directors of each of the Omimex Group duly authorizing
the transactions contemplated in this Agreement.
8.5 Litigation. At the Closing Date, there shall not be pending or
threatened any litigation in any court or any proceeding before any Agency,
(i) in which it is sought to restrain, invalidate, set aside or obtain damages
in respect of the consummation of the purchase and sale of the OPI Assets or
the other transactions contemplated hereby, (ii) that could, if adversely
determined, result in any OPI Material Adverse Effect or (iii) as a result of
which, in the reasonable judgment of Sabacol, Sabacol would be deprived of the
material benefits of its ownership of the OPI Assets.
8.6 Satisfactory to Counsel. All actions, proceedings, instruments and
documents required to carry out this Agreement or incidental thereto and all
other related matters shall have been satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, counsel for Sabacol.
8.7 No Material Adverse Effect. There shall not be existing at the
Closing any OPI Material Adverse Effect. Sabacol shall receive a certificate
from the Chief Executive Officer of OPI, dated as of the Closing Date and in
form and substance satisfactory to Sabacol, as to the fulfillment of the
conditions set forth in this Section 8.7.
8.8 Consents. The Omimex Group shall have obtained all orders,
approvals, estoppel certificates or consents of third parties, including,
without limitation, (i) the consent of Bank One, Texas, National Association
to the transfer of the OPI Assets to Sabacol and the release of any liens of
such bank on the OPI Assets and (ii) any orders, approvals, certificates or
consents deemed necessary by counsel to Sabacol that shall be required to
consummate the transactions contemplated hereby.
8.9 Further Assurances. The Omimex Group shall take all such further
action as may be reasonably requested by Sabacol in order to effectuate the
consummation of the transactions contemplated by this Agreement. If Sabacol
shall reasonably determine that any further conveyance, assignment or other
document or any further action (which does not involve significant expense,
except legal and notary fees) is necessary to vest in Sabacol full title to
the OPI Assets, each of the Omimex Group shall cause the appropriate officers
to execute and deliver all such instruments and take all such action as
Sabacol may reasonably determine to be necessary.
8.10 Bankruptcy Approval. The obligations of the parties to fulfill
their respective obligations under this Agreement is contingent upon entry of
the Bankruptcy Approval Order by the Bankruptcy Court .
ARTICLE IX
CLOSING
9.1 Date and Place of Closing. Subject to satisfaction or waiver of the
conditions to the obligations of the parties, the transactions contemplated by
this Agreement shall be consummated at a closing (the "Closing") to be held in
the offices of ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP, in Dallas, Texas, or such other place
as mutually agreed to by the parties, at 10:00 a.m., Dallas, Texas time, no
later than five (5) business days after Sabacol and ODC receive fully executed
copies of the Ecopetrol Assignment Documents, or such other date as the
parties may mutually agree upon (the "Closing Date").
9.2 Performance by Sabacol. At the Closing, concurrently with
performance by the Omimex Group of its obligations to be performed at the
Closing:
1. Conveyances. Sabacol shall execute and deliver to ODC, in
form and substance acceptable to the Omimex Group and its counsel (i) special
warranty deeds (or its equivalent in Colombia) conveying to ODC all of the
Sabacol Real Property and any improvements thereon (subject to the matters
listed in Schedule 3.2) and (ii) such bills of sale, motor vehicle titles,
assignments, endorsements, licenses and other good and sufficient instruments
and documents of conveyance and transfer as shall be necessary and effective
to transfer and assign to and vest in ODC all of Sabacol's right, title and
interest in and to the Sabacol Personal Property and to carry out the intent
of this Agreement, including, without limitation, all documents and
instruments necessary and effective to notarize, register and otherwise fully
effect the transfer of the Sabacol Assets to ODC, including, without
limitation, powers of attorney. If requested by the Omimex Group, such
documents shall be in a form suitable for recording.
2. Records. Sabacol shall deliver to the Omimex Group all
documents, agreements, reports, books, records and accounts pertaining
specifically to the Sabacol Assets that are in Saba's or Sabacol's possession.
3. Certificates. Sabacol shall execute and deliver to the
Omimex Group the certificates referred to in Sections 7.3 and 7.7.
4. Certificates of Authorities. Sabacol shall deliver to the
Omimex Group the certificates of authorities referred to in Section 7.4.
5. Consents. Sabacol shall deliver to the Omimex Group the
consents and approvals required by Section 7.8.
6. Assumption Agreement. Sabacol shall execute and deliver to
the Omimex Group such documents as shall be necessary and effective to assume
the Assumed OPI Liabilities.
7. Escrow Agreement. Sabacol shall execute and deliver the
Escrow Agreement to the Omimex Group.
8. Escrow Payments. Sabacol shall deliver to the Escrow Agent
for deposit into the Escrow Account cash in an amount equal to (i) the
Unassumed Tax Liability and (ii) the amount necessary to fully pay and
discharge the Schedule 3.17 Debt, less the Positive Initial Settlement Amount,
if any. If the Positive Initial Settlement Amount exceeds the aggregate
amount of the Unassumed Tax Liability and Schedule 3.17 Debt, then Sabacol
shall not make any deposit to the Escrow Account.
9. Negative Initial Settlement Amount. If the initial adjustment
to the Purchase Price results in a Negative Initial Settlement Amount, Sabacol
shall deliver to ODC cash in an amount equal to the Negative Initial
Settlement Amount.
9.3 Performance by Omimex Group. At the Closing, concurrently with the
performance by Sabacol of its obligations to be performed at the Closing::
1. Conveyances. Each of the Omimex Group shall execute and
deliver to Sabacol, in form and substance acceptable to Sabacol (i) special
warranty deeds and or assignments conveying to Sabacol all of the OPI Real
Property and any improvements thereon (subject to the matters listed in
Schedule 4.2) and (ii) such bills of sale, motor vehicle titles, assignments,
endorsements, licenses and other good and sufficient instruments and documents
of conveyance and transfer as shall be necessary and effective to transfer and
assign to and vest in Sabacol all of OPI's right, title and interests in and
to the OPI Personal Property and the Sabacol Indebtedness and to carry out the
intent of this Agreement. If requested by Sabacol, such documents shall be in
a form suitable for recording.
2. Records. Each of the Omimex Group shall deliver to Sabacol
all documents, agreements, reports, books, records and accounts pertaining
specifically to the OPI Assets that are its possession.
3. Certificates. Each of the Omimex Group shall execute and
deliver to Sabacol the certificates referred to in Sections 8.3 and 8.7.
4. Certificates of Authorities. Each of the Omimex Group shall
deliver to Sabacol the certificates of authorities referred to in Section 8.4.
5. Consents. The Omimex Group shall deliver to Sabacol the
consents and approvals required by Section 8.8.
6. Assumption Agreement. ODC shall execute and deliver to
Sabacol such documents as shall be necessary and effective to assume the
Assumed Sabacol Liabilities.
7. Escrow Agreement. The Omimex Group shall execute and deliver
the Escrow Agreement to Sabacol.
8. Escrow Payments. ODC shall deliver to the Escrow Agent for
deposit into the Escrow Account cash in an amount equal to (i) if ODC makes a
Cash Election, the Assumed Tax Liability and (ii) if the initial adjustment to
the Purchase Price results in a Positive Initial Settlement Amount, the
Positive Initial Settlement Amount.
9.4 Prorations; Other Instruments. In addition to the foregoing, the
Omimex Group and Sabacol agree as follows:
1. Taxes and Utilities. Real estate and personal property taxes
for the current year and utility charges for the billing periods shall be
apportioned pro rata among Omimex and Sabacol as of the Effective Time. If
the amount of real estate and personal property taxes for the current year and
the amount of utility charges for the billing periods are not ascertainable on
the Closing Date, such taxes and utility charges shall be apportioned based on
the immediately preceding tax year and billing periods; provided, however,
that such taxes and utility charges shall be reapportioned based on actual
taxes and charges promptly after such amounts are ascertained.
2. Further Action by Sabacol. At any time and from time to
time, at or after the Closing, upon request of the Omimex Group, Sabacol shall
do, execute, acknowledge and deliver or shall cause to be done, executed,
acknowledged and delivered all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances as may reasonably be
required without unreasonable expense (except legal and notary fees) in order
to evidence, vest in and confirm to the Omimex Group the full and complete
title to, possession of, and the right to use and enjoy, the Sabacol Assets.
3. Further Action by the Omimex Group. At any time and from
time to time, at or after the Closing, upon request of Sabacol, the Omimex
Group shall do, execute, acknowledge and deliver or shall cause to be done,
executed, acknowledged and delivered all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney and assurances as may
reasonably be required without unreasonable expense (except legal and notary
fees) in order to evidence, vest in and confirm to Sabacol the full and
complete title to, possession of, and the right to use and enjoy, the OPI
Assets.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
10.1 Survival of Covenants, Agreements, Representations and Warranties.
1. Covenants and Agreements. All covenants and agreements made
hereunder or pursuant hereto or in connection with the transactions
contemplated hereby shall survive the Closing and shall continue in full force
and effect thereafter according to their terms.
2. Representations and Warranties. All representations and
warranties contained herein shall survive the Closing and shall continue in
full force and effect thereafter for a period beginning at the Effective Time
and ending on the later of May 31, 2000 or the first anniversary of the
Closing Date, except that (a) the representations and warranties contained in
Section 3.10 and Section 4.10 hereof shall survive until the earlier of (i)
the expiration of the applicable periods (including any extensions) of the
respective statutes of limitation applicable to the payment of the taxes to
which such representations and warranties relate without an assertion of a
deficiency in respect thereof by the applicable taxing authority or (ii) the
completion of the final audit and determinations by the applicable taxing
authority and final disposition of any deficiency resulting therefrom and (b)
the representations and warranties contained in Sections 3.1, 3.2, 4.1 and 4.2
shall survive indefinitely.
3. Claims Made Prior to Expiration. Notwithstanding the
foregoing survival periods set forth in this Section 10.1, the termination of
a survival period shall not affect the rights of an Indemnified Party in
respect of any claim made by such party with specificity, in good faith and in
writing to the Indemnifying Party, in accordance with Sections 10.6 and 12.9
hereof prior to the expiration of the applicable survival period.
10.2 Omimex Group's Losses. Sabacol agrees to indemnify and hold
harmless each of the Omimex Group and their respective directors, officers,
employees, representatives, agents and attorneys from, against, for and in
respect of any and all damages (including, without limitation, amounts paid in
settlement with Sabacol's consent, which may not be unreasonably withheld),
penalties, fines, interest and monetary sanctions, losses, obligations,
liabilities, claims, deficiencies, costs and expenses, including, without
limitation, reasonable attorneys' fees and other costs and expenses incident
to any suit, action, investigation, claim or proceeding (collectively, as
"Omimex's Losses") suffered, sustained, incurred or required to be paid by any
of them by reason of (i) any representation or warranty made by Sabacol in or
pursuant to this Agreement (including any schedule or exhibit to this
Agreement or any certificate delivered pursuant hereto) being untrue or
incorrect in any material respect; (ii) any liability arising from or with
respect to the Assumed OPI Liabilities; (iii) any failure by Sabacol to
observe or perform its covenants and agreements set forth in this Agreement;
(iv) any failure by Sabacol to satisfy and discharge any liability or
obligation not expressly assumed by the Omimex Group pursuant to this
Agreement; or (v) any derivative stockholder action or similar claim asserted
by a stockholder of Sabacol related to the transactions contemplated hereby.
10.3 Employee Compensation and Benefits. Sabacol agrees to indemnify and
hold each of the Omimex Group and their respective directors, officers,
employees, representatives, agents and attorneys harmless from and against any
and all claims made by employees of Sabacol, regardless of when made, for
wages, salaries, bonuses, pension, workmen's compensation, medical insurance,
disability, vacation, severance, pay in lieu of notice, sick benefits or other
compensation or benefit arrangements to the extent the same are based on
employment service rendered to Sabacol prior to the Closing Date or injury or
sickness occurring prior to the Closing Date (collectively, "Sabacol Employee
Claims").
10.4 Sabacol's Losses. Each of the Omimex Group, jointly and
severally, agrees to indemnify and hold harmless Sabacol and its directors,
officers, employees, representatives, agents and attorneys from, against, for
and in respect of any and all damages (including, without limitation, amounts
paid in settlement with the Omimex Group's consent, which may not be
unreasonably withheld), penalties, fines, interest and monetary sanctions,
losses, obligations, liabilities, claims, deficiencies, costs and expenses,
including, without limitation, reasonable attorneys' fees and other costs and
expenses incident to any suit, action, investigation, claim or proceeding
(collectively as "Sabacol's Losses") suffered, sustained, incurred or required
to be paid by Sabacol by reason of (i) any representation or warranty made by
any of the Omimex Group in or pursuant to this Agreement (including any
schedule or exhibit to this Agreement or any certificate delivered pursuant
hereto) being untrue or incorrect in any material respect (ii) any liability
arising from or with respect to the Assumed Sabacol Liabilities; (iii) any
failure by any of the Omimex Group to observe or perform its covenants and
agreements set forth in this Agreement; or (iv) any failure by OPI to satisfy
and discharge any other liability or obligation not expressly assumed by
Sabacol pursuant to this Agreement.
10.5 Employee Compensation and Benefits. Each of the Omimex Group,
jointly and severally, agrees to indemnify and hold Sabacol and its directors,
officers, employees, representatives, agents and attorneys harmless from and
against any and all claims made by employees of OPI, regardless of when made,
for wages, salaries, bonuses, pension, workmen's compensation, medical
insurance, disability, vacation, severance, pay in lieu of notice, sick
benefits or other compensation or benefit arrangements to the extent the same
are based on employment service rendered to OPI to the Closing Date or injury
or sickness occurring prior to the Closing Date (collectively, "Omimex
Employee Claims").
10.6 Notice of Loss. Except to the extent set forth in the next
sentence, a party to this Agreement shall not have any liability under the
indemnity provisions of this Agreement with respect to a particular matter
unless a notice setting forth in reasonable detail the claim for
indemnification which is asserted has been given to the Indemnifying Party (as
hereafter defined) and, in addition, if such matter arises out of a suit,
action, investigation or proceeding, such notice is given promptly, but in any
event within thirty (30) days after the Indemnified Party (as hereafter
defined) is given notice of the commencement of the suit, action,
investigation or proceeding. Notwithstanding the preceding sentence, failure
of the Indemnified Party to give notice hereunder shall not release the
Indemnifying Party from its obligations under this Article 10, except to the
extent the Indemnifying Party is actually prejudiced by such failure to give
notice. With respect to Omimex's Losses and Sabacol Employee Claims, Sabacol
shall be the Indemnifying Party and each of the Omimex Group shall be the
Indemnified Party. With respect to Sabacol's Losses and Omimex Employee
Claims, each of the Omimex Group shall be the Indemnifying Party and Sabacol
shall be the Indemnified Party.
10.7 Right to Defend. Upon receipt of notice of any suit, action,
investigation, claim or proceeding for which indemnification might be claimed
by an Indemnified Party, the Indemnifying Party shall be entitled to defend,
contest or otherwise protect against such suit, action, investigation, claim
or proceeding, at its own cost and expense, and the Indemnified Party must
cooperate in any such defense or other action. The Indemnified Party shall
have the right, but not the obligation, to participate at its own expense in a
defense thereof by counsel of its own choosing, but the Indemnifying Party
shall be entitled to control the defense unless the Indemnified Party has
relieved the Indemnifying Party from liability with respect to the particular
matter or the Indemnifying Party fails to assume defense of the matter. In
the event the Indemnifying Party shall fail to defend, contest or otherwise
protect in a timely manner against any such suit, action, investigation, claim
or proceeding, the Indemnified Party shall have the right, but not the
obligation, to defend, contest or otherwise protect against the same and make
any compromise or settlement thereof and recover the entire cost thereof from
the Indemnifying Party including reasonable attorneys' fees, disbursements and
all amounts paid as a result of such suit, action, investigation, claim or
proceeding or the compromise or settlement thereof; provided, however, that
the Indemnified Party must send a written notice to the Indemnifying Party of
any such proposed settlement or compromise, which settlement or compromise the
Indemnifying Party may reject, in its reasonable judgment, within thirty (30)
days of receipt of such notice. Failure to reject such notice within such
thirty (30) day period shall be deemed an acceptance of such settlement or
compromise. The Indemnified Party shall have the right to effect a settlement
or compromise over the objection of the Indemnifying Party; provided, that if
(i) the Indemnifying Party is contesting such claim in good faith or (ii) the
Indemnifying Party has assumed the defense from the Indemnified Party, the
Indemnified Party waives any right to indemnity therefor. If the Indemnifying
Party undertakes the defense of such matters, the Indemnified Party shall not,
so long as the Indemnifying Party does not abandon the defense thereof, be
entitled to recover from the Indemnifying Party any legal or other expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof other than the reasonable costs of investigation undertaken by the
Indemnified Party with the prior written consent of the Indemnifying Party.
10.8 Cooperation.
1. Each of the Omimex Group and Sabacol and each of their
respective affiliates, successors and assigns shall cooperate with each other
in the defense of any suit, action, investigation, proceeding or claim by a
third party and, during normal business hours, shall afford each other access
to their books and records and employees relating to such suit, action,
investigation, proceeding or claim and shall furnish each other all such
further information that they have the right and power to furnish as may
reasonably be necessary to defend such suit, action, investigation, proceeding
or claim, including, without limitation, reports, studies, correspondence and
other documentation relating to Environmental Protection Agency, Occupational
Safety and Health Administration, and Equal Employment Opportunity Commission
matters.
2. All non-public information furnished pursuant to the
provisions of this Agreement, including without limitation this Section, will
be kept confidential and shall not, without the prior written consent of the
party disclosing such information, be disclosed by the other party in any
manner whatsoever, in whole or in part, and shall not be used for any
purposes, other than in connection with the transactions contemplated hereby.
In no event shall either party or any of its representatives use such
information to the detriment of the other party.
3. The confidentiality obligations of Section 10.8.2 shall not
apply to information:
(i) which is required to be disclosed by judicial or
administrative process or order, or by other requirements of law;
(ii) which is or becomes generally available to the public
other than as a result of a breach of this Section;
(iii) which is received from a party or parties
unaffiliated with either party, as the case may be, who obtained such
information other than under an obligation of confidentiality;
(iv) which either party discloses on a nonconfidential
basis or otherwise makes available to the general public or the trade;
(v) which Sabacol uses in connection with operating the OPI
Assets after the Effective Time; or
(vi) which any of the Omimex Group uses in connection with
operating the Sabacol Assets after the Effective Time.
4. Each of Sabacol and the Omimex Group will cooperate and use
its reasonable efforts to have the present officers, directors and employees
thereof cooperate with the other party on and after the Closing Date in (i)
effecting the transactions contemplated hereby and (ii) furnishing
information, evidence, testimony and other assistance in connection with any
tax return filing obligations, actions, proceedings, arrangements or disputes
of any nature with respect to matters pertaining to all periods prior to the
Effective Time.
ARTICLE XI
TERMINATION
11.1 Termination. This Agreement may be terminated and abandoned at any
time on or prior to the Closing Date:
1. By mutual written consent of the parties;
2. By any of the Omimex Group in writing if any of the material
conditions to the obligations of the Omimex Group contained herein shall not
have been satisfied or, if unsatisfied, waived by the Omimex Group as of the
Closing Date;
3. By Sabacol in writing if any of the material conditions to
the obligations of Sabacol contained herein shall not have been satisfied or,
if unsatisfied, waived by Sabacol as of the Closing Date; or
4. By either the Omimex Group or Sabacol in writing if the
Closing shall not have occurred by June 30, 1999 (provided that the right to
terminate this Agreement under this Section 11.1.4 shall not be available to
any party whose action or failure to act has been the cause of or resulted in
the failure of Closing to occur on or before such date and such action or
failure constitutes a breach of this Agreement.
11.2 No Further Force or Effect. In the event of termination and
abandonment of this Agreement pursuant to the provisions of Section 11.1, this
Agreement shall be of no further force or effect, except for Sections 5.4,
6.4, 10.8 and 12.1, which shall not be affected by termination of this
Agreement.
11.3 Topping Fee. In the event that the Board of Directors of Sabacol
approves an Acquisition Proposal or an Acquisition Proposal is consummated,
Sabacol shall pay to the Omimex Group (by wire transfer or cashier's check of
immediately available funds) within one business day, the amount of reasonable
costs and expenses of the Omimex Group, including, without limitation,
reasonable attorney fees, in negotiating, executing and performing this
Agreement.
ARTICLE XII
MISCELLANEOUS
12.1 Expenses. Except as otherwise expressly provided herein, Sabacol
and the Omimex Group shall each pay their own expenses in connection with the
preparation of this Agreement, and the consummation of the transactions
contemplated hereby, including, without limitation, fees of its own counsel,
auditors and other experts, whether or not such transactions be consummated.
Sabacol shall prepare the documents necessary to transfer of the OPI Assets to
Sabacol, ODC shall prepare the documents necessary to transfer of the Sabacol
Assets to ODC and the parties shall equally share the notary and registration
costs and expenses of transferring the OPI Assets and Sabacol Assets
hereunder.
12.2 Entire Agreement. This Agreement (including the exhibits and
schedules hereto) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties
hereto with respect to the subject matter hereof, and no party shall be liable
or bound to the other in any manner by any representations or warranties not
set forth herein.
12.3 Publicity. Except as otherwise required by law, no party hereto
shall issue any press release or make any public statement, in either case
relating to or in connection with or arising out of this Agreement or the
matters contained herein, without obtaining the prior written approval of the
other parties hereto to the content and manner of presentation and publication
thereof, which consent shall not be unreasonably withheld or delayed.
12.4 Successors and Assigns. This Agreement and the rights of the
parties hereunder may not be assigned without the prior written consent of all
of the parties hereto. For purposes of this Agreement, assignment shall
include the merger, consolidation or other consolidation of any of the parties
hereto or the sale or transfer of a majority of the equity or beneficial
ownership interests of a party hereto or more than thirty percent (30%) of the
assets of a party hereto. The terms and conditions of this Agreement shall
inure to the benefit of, and be binding upon, the respective permitted
successors and assigns of the parties hereto. Nothing in this Agreement,
express or implied, is intended to confer upon any party, other than the
parties and their respective permitted successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of such agreements.
12.5 Counterparts; Translation. This Agreement may be executed in one
or more counterparts by person or by facsimile, each of which shall for all
purposes be deemed to be an original and all of which shall constitute the
same instrument. This Agreement may be translated into the Spanish language,
but in the event of any conflict between the terms in the English and Spanish
versions, the terms in the English version shall govern.
12.6 Headings. The headings of the paragraphs and subparagraphs of this
Agreement are inserted for convenience of reference only and shall not be
deemed to constitute part of this Agreement or to affect the construction
hereof.
12.7 Use of Certain Terms. As used in this Agreement, the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular paragraph, subparagraph or
other subdivision.
12.8 Modification and Waiver. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which is entitled
to the benefits thereof, and this Agreement may be modified or amended by a
written instrument executed by all of the parties hereto. No supplement,
modification or amendment of this Agreement shall be binding unless executed
in writing by all of the parties hereto. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
12.9 Notices. All notices of communication required or permitted
hereunder shall be in writing and may be given by (a) depositing the same in
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, (b) delivering the same
in person to an officer or agent of such party or (c) telecopying the same
with electronic confirmation of receipt:
(i) If to Sabacol: Sabacol, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy No. (▇▇▇-▇▇▇-▇▇▇▇
(ii) If to the: Omimex Resources, Inc.
Omimex Group ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or counsel as any party hereto shall specify pursuant
to this Section 12.9 from time to time.
12.10 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA EXCEPT THAT
THE LAW OF THE STATE OR COUNTRY IN WHICH ANY REAL PROPERTY TRANSFERRED
HEREUNDER IS LOCATED SHALL GOVERN WITH RESPECT TO TITLE THERETO. THE PARTIES
HERETO EXPRESSLY CONSENT AND AGREE THAT ANY DISPUTE, CONTROVERSY, LEGAL ACTION
OR OTHER PROCEEDING THAT ARISES UNDER, RESULTS FROM, CONCERNS OR RELATES TO
THIS AGREEMENT SHALL BE BROUGHT IN (I) THE BANKRUPTCY COURT, IF THE BANKRUPTCY
CASE IS STILL PENDING, OR (II) THE FEDERAL AND STATE COURTS IN AND OF THE
STATE OF CALIFORNIA, IF THE BANKRUPTCY CASE IS NO LONGER PENDING, AND
ACKNOWLEDGE THAT THEY WILL ACCEPT SERVICE OF PROCESS BY REGISTERED OR
CERTIFIED MAIL OR THE EQUIVALENT DIRECTED TO THEIR LAST KNOWN ADDRESS AS
DETERMINED BY THE OTHER PARTY IN ACCORDANCE WITH THIS AGREEMENT OR BY WHATEVER
OTHER MEANS ARE PERMITTED BY SUCH COURTS. THE PARTIES HERETO HEREBY
ACKNOWLEDGE THAT SAID COURTS HAVE EXCLUSIVE JURISDICTION OVER ANY SUCH DISPUTE
OR CONTROVERSY, AND THAT THEY HEREBY WAIVE ANY OBJECTION TO PERSONAL
JURISDICTION OR VENUE IN THESE COURTS OR THAT SUCH COURTS ARE AN INCONVENIENT
FORUM. ALL REMEDIES AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE SHALL BE
CUMULATIVE AND MAY BE ENFORCED CONCURRENTLY OR FROM TIME TO TIME AND, SUBJECT
TO THE EXPRESS TERMS OF THIS AGREEMENT, THE ELECTION OF ANY REMEDY OR REMEDIES
SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT TO PURSUE ANY OTHER AVAILABLE
REMEDIES.
12.11 Time. Time is of the essence with respect to this Agreement.
12.12 Reformation and Severability. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties, and if such
modification is not possible, such provision shall be severed from this
Agreement, and in either case the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
12.13 Remedies Cumulative. No right, remedy or election given by any
term of this Agreement shall be deemed exclusive but each shall be cumulative
with all other rights, remedies and elections available at law or in equity.
12.14 Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that in the event the other party or parties should
refuse to perform any of its or their obligations under this Agreement, the
remedy at law would be inadequate and agrees that for breach of such
provisions, each party shall, in addition to such other remedies as may be
available to it at law or in equity, be entitled to injunctive relief and to
enforce its rights by an action for specific performance to the extent
permitted by applicable law. Each party hereby waives any requirement for
security or the posting of any bond or other surety in connection with any
temporary or permanent award of injunctive, mandatory or other equitable
relief.
[The balance of this page is intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed in counterparts by its duly authorized representative all as of
the date first above written.
SABACOL, INC.
By:
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Chief Executive Officer
OMIMEX RESOURCES, INC.
By:
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President
OMIMEX INTERNATIONAL COPRORATION
By:
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President
OMIMEX DE COLOMBIA, LTD.
By:
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President
ASSET PURCHASE AGREEMENT
List of Schedules and Exhibits
SCHEDULES
1.1.1.1 Sabacol Real Property
1.1.1.2 Sabacol Personal Property
1.2.1.1 OPI Real Property
1.2.1.2 OPI Personal Property
1.3.1 Assumed Sabacol Liabilities
1.3.2 Assumed OPI Liabilities
2.2.1 Unassumed Tax Liability
2.3 Allocation of Purchase Price
2.4 Reserve Reports
2.4.1 Reserve Projection of Sabacol Assets
2.4.2 Reserve Projection of OPI Assets
2.7 Dispute Resolution Procedure
2.8 Belridge Property
3.2 Title
3.3 Compliance
3.4 Contracts
3.5 Contract Defaults
3.6 Litigation
3.8 Consents
3.9 Insurance
3.17 Sabacol Debt
4.2 Title
4.3 Compliance
4.4 Contracts
4.5 Contract Defaults
4.6 Litigation
4.8 Consents
4.9 Insurance
EXHIBITS
A Escrow Agreement
