ASSET PURCHASE AGREEMENT
BY AND AMONG
WORLDWIDE ENERGY INC.
AND
World Link Capital LLC
Dated as of September 8th, 1999
ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.................................................. 1
SECTION 1.1 ACCOUNTING, TERMS........................................ 1
SECTION 1.2 DEFINED TERMS............................................ 1
ARTICLE II CLOSING .................................................... 2
SECTION 2.1 CLOSING ................................................. 2
ARTICLE III PURCHASE, SALE AND DELIVERY................................ 2
SECTION 3.1 ACQUISITION ASSETS....................................... 2
SECTION 3.2 PURCHASE PRICE .......................................... 2
SECTION 3.3 PURCHASE AGREEMENT ...................................... 3
ARTICLE IV LIABILITIES AND OBLIGATIONS ................................ 3
SECTION 4.1 LIABILITIES NOT ASSUMED BY PURCHASER .................... 3
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER..................... 4
SECTION 5.1 ORGANIZATIONS; QUALIFICATION ............................ 4
SECTION 5.2 AUTHORITY ENFORCEABILITY ................................ 4
SECTION 5.3 BINDING AGREEMENT ....................................... 4
SECTION 5.4 SINGLE-PURPOSE ENTITY ................................... 4
SECTION 5.5 No DEFAULT; COMPLIANCE WITH LAWS AND REGULATIONS ........ 5
SECTION 5.6 ABSENCE OF CERTAIN CHANGES ............................. 5
SECTION 5.7 ACTIONS PENDING ......................................... 5
SECTION 5.8 ENVIRONMENTAL .......................................... 5
SECTION 5.9 TITLE TO PROPERTIES . ................................... 6
SECTION 5.10 SOLVENCY ............................................... 6
SECTION 5.11 CONDITION OF ACQUISITION ASSETS ........................ 6
SECTION 5.12 COPIES OF DOCUMENTS .................................... 7
SECTION 5.13 DISCLOSURE ............................................. 7
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER ................ 7
SECTION 6.1 CORPORATE EXISTENCE ..................................... 7
SECTION 6.2 AUTHORITY; ABSENCE OF CONFLICTS; ENFORCEABILITY ......... 7
SECTION 6.3 BINDING AGREEMENT ....................................... 9
SECTION 6.4 REGULATORY APPROVALS .................................... 8
SECTION 6.5 ACKNOWLEDGMENT........................................... 8
ARTICLE VII COVENANTS ................................................. 8
SECTION 7.1 SELLER'S AND SELLER'S COVENANTS 8
SECTION 7.2 PURCHASER'S COVENANTS ................................... 9
ARTICLE VIII CONDITIONS TO CLOSING..................................... 9
SECTION 8.1 CONDITIONS TO OBLIGATIONS OF PURCHASER . ................ 9
SECTION 8.2 CONDITIONS TO OBLIGATIONS OF SELLER ..................... 11
ARTICLE IX TERMINATION................................................. 11
SECTION 9.1 GROUNDS FOR TERMINATION ................................. 11
SECTION 9.2 EFFECTS OF TERMINATION .................................. 12
ARTICLE X INDEMNIFICATION ............................................. 12
SECTION 10.1 SELLER'S INDEMNITY OBLIGATIONS.......................... 13
SECTION 10.2 PURCHASER'S INDEMNITY OBLIGATIONS ...................... 13
SECTION 10.3 INDEMNIFICATION PROCEDURES . ........................... 13
SECTION 10.4 DETERMINATION OF INDEMNIFIED AMOUNTS ................... 15
ARTICLE XI MISCELLANEOUS............................................... 15
SECTION 11.1 COMMISSIONS ............................................ 15
SECTION 11.2 SURVIVAL ............................................... 16
SECTION 11.3 EXPENSES ................ .............................. 16
SECTION 11.4 NOTICE ................................................. 16
SECTION 11.5 ENTIRE A ............................................... 17
SECTION 11.6 GOVERNING LAW; VENUE .... .............................. 17
SECTION 11.7 ASSIGNMENTS AND THIRD PARTIES .......................... 17
SECTION 11.8 SEVERABILITY ........................................... 17
SECTION 11.9 AMENDMENTS; No WAIVER . ............................... 17
SECTION 11.10 NO THIRD PARTY BENEFICIARIES .......................... 18
SECTION 11.11 HEADINGS; USE OF CERTAIN TERMS ........................ 18
SECTION 11.12 COUNTERPARTS .......................................... 18
SECTION 11.13 ARMS-LENGTH TRANSACTION ............................... 18
SECTION 11.14 ANCILLARY DOCUMENTS SIMULTANEOUSLY EXECUTED ........... 18
EXHIBIT A.............................................................. 1
XXXX OF SALE AND ASSIGNMENT ......................................... 1
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") dated September 8th
1999 is entered into by and among Worldwide Energy, Inc., a Oklahoma
corporation ("Seller"),World-Link Capital LLC a Nevada Limited Liability
Company ("Purchaser").
WHEREAS, Seller is a publicly held corporation disposing of the Assets,
as herein defined; and
WHEREAS, Purchaser wishes to purchase from Seller and Seller wishes to
sell, transfer, assign and deliver to Purchaser all of the State of Utah,
Trust Lands Administration Coal Leases owned by Seller as follows: ML43955,
ML43952 and ML45963 (the "Acquisition Assets"); and a Coal Sales Contract of
300,000 ton per month for a period of ten years from the Government of Mexico.
The purchase price shall be in the range of $44.00 fob at unloading port,
Mexico. The Purchaser understands that the Coal Purchase contract may be in
the form of an acceptable Letter of Intent. Acquisition Assets on the terms
and subject to the conditions set forth herein; and
WHEREAS, Seller desires to sell, transfer, assign and deliver to
Purchaser the Acquisition Assets on the terms and subject to the conditions
set forth herein and Purchase Agreement the obligations of the Purchaser
hereunder; and
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements stated herein, the parties hereto
covenant and agree as follows:
ARTICLE I DEFINITIONS
Section 1.1 Accounting Terms.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles and on a
basis not inconsistent with those applied in the preparation of the financial
statements referred to in Sections 5.6 and 5.7 hereof.
Section 1.2 Defined Terms.
As used in this Agreement, the following terms have the meanings
specified in this Section 1.2. Other capitalized terms have the meanings
assigned to them elsewhere in this Agreement.
Escrow Agent: means Xxxxx Fargo Bank
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Governmental Authority: means any nation or government, any state or
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of, or
pertaining to, government.
Lien: means any mortgage, pledge, hypothecation, security interest,
encumbrance, right of first refusal, option, lien, charge, condition,
restriction or burden of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any lease
in the nature thereof, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code of any jurisdiction).
Material Adverse Effect: means any material adverse effect on the
assets, or on the business, financial condition, properties, prospects, net
worth or results of operations of the Person with respect to which such term
is used.
Person: means any individual, partnership, joint venture, corporation,
limited liability company, association, trust, unincorporated organization,
government or agency or subdivision thereof or any other entity.
ARTICLE II CLOSING
Section 2.1 Closing.
The closing of the purchase and sale provided for herein (the
"Closing") shall take place at the offices of Seller at 0000 Xxx Xxx Xx., Xxx
Xxxxx, Xxxxxx 00000, on September 8th 30, 1999, or at such other place, time
or date as may be agreed upon in writing by the parties hereto (the "Closing
Date").
ARTICLE III PURCHASE, SALE AND DELIVERY
Section 3.1 Acquisition Assets.
Subject to the terms and conditions of this Agreement, and on the basis of
the representations and warranties hereinafter set forth, at the Closing
Seller shall sell, transfer, convey, assign and deliver to Purchaser, and
Purchaser shall acquire from Seller, all of the State of Utah, Trust Lands
Administration Coal Leases owned by Seller as follows: ML43955, ML43952 and
ML45963 (the "Acquisition Assets"), and the Purchaser understands that the
Coal Purchase contract may be in the form of an acceptable Letter Of Intent;
Section 3.2 Purchase Price.
The consideration for the purchase of the Acquisition Assets is
$200,000,000 (the "Purchase Price"). The final Purchase price will be
determined subject to World - Link's Lender's Appraisal and final Loan
Agreement. The final Loan Agreement must be acceptable to
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both Purchaser and Seller. Purchaser shall pay the Seller initial payment of
one hundred million dollars ($100,000,000) on/or before, as defined herein; to
Seller at Closing by wire transfer to an account designated in writing by
Seller or by a bank cashier's check made payable to Seller consistent with the
terms of the Purchase (the "Purchase Agreement") between World-Link Capital,
LLC.
Section 3.3 Purchase Agreement
The terms of the Purchase Agreement between Seller and Purchaser, the
initial proceeds from the Purchaser contemplated hereunder shall first be
applied to the purchase of Acquisition Assets, any unpaid balance, and any
other amounts owed Seller by Purchaser under the purchase agreement for the
Acquisition Assets. Term of and amount of such payments shall be consistent
with the Purchase Payment Agreement by and between World-Link's Purchase and
Lender and agreed to as follows: 1st payment seventy five million dollars
($75,000,000) one year from date of close of purchase escrow. 2nd payment
twenty five million dollars ($25,000,000) two (2) years from date of close of
purchase escrow by a bank cashier's check made payable to Seller consistent
with the terms of the Purchase (the "Purchase Agreement") between Worldwide
Energy, Inc. and World-Link Capital, LLC. funds shall be wire transferred as
per instruction given in writing by Seller.
ARTICLE IV LIABILITIES AND OBLIGATIONS
Section 4.1 Liabilities Not Assumed by Purchaser.
Purchaser does not assume or agree to pay, perform or discharge, and
shall not be responsible for, any liabilities or obligations of Seller,
whether accrued, absolute, contingent or otherwise (collectively, the
"Excluded Liabilities"), including, without limitation, liabilities or
obligations based on, arising out of or in connection with the following:
(a) any indebtedness (whether short-term or long-term) for borrowed
money of Seller, and any liability or obligation of Seller under any
contracts;
(b) any taxes for which Seller is liable, including, without
limitation, any taxes owned or payable on or as a result of the original
purchase of the Acquisition Assets by Seller, and any taxes incurred with
respect to the Acquisition Assets since their acquisition by Seller;
(c) any liability or obligation (contingent or otherwise) of Seller
arising out of any claim, litigation or proceeding threatened or pending on or
before the Closing Date or any claim, litigation or proceeding threatened or
initiated after the Closing Date, to the extent based on an act or omission of
Seller occurring before the Closing Date.
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represent, warrant and agree to and with Purchaser as follows,
which representations and warranties shall be true also as of the Closing Date
and deemed made as of such date as a result of consummation of the Closing;
Section 5.1 Organizations; Qualification.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oklahoma. Seller has heretofore
delivered to Purchaser true, correct and complete copies of the Coal Leases of
Seller.
Section 5.2 Authority; Enforceability.
Seller has all requisite corporate power and authority to own and sell
its asset/coal leases, to enter into this Agreement and to perform under this
Agreement. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly and validly authorized by all
requisite corporate action on the part of Seller (including approval by Seller
as such shareholder thereof). This Agreement has been duly and validly
executed and delivered by Seller. There is no action, claim, suit,
arbitration, investigation or proceeding pending or threatened against Seller
which purports to affect the validity or enforceability of this Agreement or
that seeks to prohibit, restrict or delay the consummation of the transaction
contemplated hereby.
Section 5.3 Binding Agreement.
This Agreement constitutes, a general Agreement that will be subject to
terms and conditions of final Loan Agreement by both parties as of the date
hereof, and this Agreement and all documents and instruments required
hereunder to be executed and delivered by Seller at Closing will constitute,
on the Closing Date, legal, valid and binding obligations of Seller
enforceable against Seller in accordance with their respective terms. This
Agreement also constitutes, as of the date hereof, and this Agreement and all
documents and instruments required hereunder to be executed and delivered by
Seller at Closing will constitute, on the Closing Date, legal, valid and
binding obligations of Seller enforceable against Seller in accordance with
their respective terms unless amended and agreed to by both parties in
writing.
Section 5.4 Single-Purpose Entity.
Seller is a publicly traded entity that was purchased solely for the
purpose acquiring the Acquisition and then selling Assets and of further
acquiring, holding and disposing of other Assets, and accordingly, it has no
other material assets besides the Acquisition Assets, and no material
liabilities. It is not a party to any other material contract.
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Section 5.5 No Default, Compliance with Laws and Regulations.
(a) Seller is not in default under, and no condition exists that
with notice or lapse of time or both would constitute a default under, (i) any
Purchase or credit agreement, indenture, evidence or indebtedness or other
instrument evidencing borrowed money to which Seller is a party or by which
Seller or any of their respective properties is bound, (ii) any judgment,
order or injunction of any court or Governmental Authority or (iii) any other
material agreement, contract, lease or license.
(b) Seller is not in violation of any law, regulation, order,
judgment or decree of any federal or state court or Governmental Authority
applicable to its assets, properties, business or operation.
(c) No taxes or assessments are or, based on events or occurrences
through the Closing, will be, payable in connection with or related to the
Acquisition Assets (other than sales taxes, if any, payable in connection with
the sale and purchase contemplated herein, which sales taxes Seller agrees to
pay) that could in any way become a liability of Purchaser or create a Lien
against the Acquisition Assets.
Section 5.6 Absence of Certain Changes.
Since August 31, 1999 there has not been:
(a) any material damage, destruction or loss to any of the
Acquisition Assets, whether covered by insurance or not;
(b) any write-up or write-down of the value of any of Seller's
assets, except for write-ups or write-downs in accordance with generally
accepted accounting principles and in the ordinary course of business and
consistent with past practice;
(c) seller has not received communications from the Mexican
Government that would indicate that the proposed Letter of Intent or contract
would not be executed in the form and substance as indicated in letter dated
June 23, 1995.
Section 5.7 Actions Pending.
There is no action, claim, suit, investigation or proceeding pending or
threatened against Seller or involving any properties or rights of Seller by
or before any court, arbitrator or Governmental Authority.
Section 5.8 Environmental
Seller has not conducted any business therefor is in compliance with all
Environmental Laws. None of the operations of Seller or the Acquisition Assets
are the subject of federal, state or local investigation evaluating whether
any remedial action is needed to respond to a release of
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any Hazardous Substance or toxic waste or constituent into the environment.
Seller has not (and no other Person has) filed any notice under any federal,
state or local law indicating that Seller is responsible for the release into
the environment or the improper storage of any amount of any Hazardous
Substance or toxic waste or constituent, or that any such substance, waste or
constituent has been released from or is improperly stored upon the
Acquisition Assets or the land on which they are situated. To Seller's
knowledge, Seller does not otherwise have any liability or contingent
liability in connection with any violation of Environmental Laws or in
connection with the release or threatened release into the environment or the
improper storage of any Hazardous Substance or toxic waste or constituent
related to the Acquisition Assets. All notices, permits, licenses or similar
authorizations, if any, required to be obtained or filed in connection with
the operations of Seller related to the Acquisition Assets, including, without
limitation, present or past treatment, storage, disposal or release of a
Hazardous Substance or toxic waste into the environment, have been duly
obtained or filed, and Seller is in compliance with the terms and conditions
of all such notices, permits, licenses and similar authorizations. To Seller's
knowledge, there has been no release or threatened release of any Hazardous
Substances or toxic waste on or from the Acquisition Assets or the land on
which they are situated that either (a) is not in compliance with
Environmental Laws or (b) could create an obligation or liability of Seller
under Environmental Laws, and there are no storage tanks or other containers
on or under any from the Acquisition Assets or the land on which they are
situated from which Hazardous Substances or other contaminants may be released
into the surrounding environment. No claims, are pending or threatened by
third parties against Seller alleging liability for exposure to Hazardous
Substances in connection with the Acquisition Assets. There have been no
environmental investigations, studies, audits, reviews or other analyses
conducted by or which are in the possession of Seller regarding from the
Acquisition Assets which have not been delivered to Purchaser.
Section 5.9 Title to Properties.
Seller has good and marketable title to the Acquisition Assets and the
Acquisition Assets are not subject to any Lien.
Section 5.10 Solvency.
Seller is not insolvent and neither will be rendered insolvent by the
occurrence of the transactions contemplated by this Agreement. In addition,
immediately after giving effect to the consummation of the transactions
contemplated by this Agreement, (a) As used in this Section, (x) "insolvent"
means, for any Person, that such Person is unable to pay its obligations as
they become due in the usual course of its affairs, and that the sum of the
present fair saleable value of its assets does not and/or will not exceed its
debts and other probably liabilities, and (y) the term "debts" includes any
legal liability, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed or contingent, disputed or undisputed or secured or unsecured.
Section 5.11 Condition of Acquisition Assets.
Seller has no knowledge of any problems with the Acquisition Assets.
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Section 5.12 Copies of Documents.
Seller has provided Purchaser with true, complete and correct copies of
as attached hereto are true, complete and correct copies of such documents;
and all documents furnished by Seller in connection with Purchaser's due
diligence activities related to the purchase and sale contemplated herein,
including all documents listed in Schedule 5.15 are true, correct and
complete. Documents.
Section 5.13 Disclosure.
Seller has provided Purchaser with Appraisal report on Green River Coal,
Inc. prepared by Xxx X. Xxxxx, a Registered Professional Engineer February 26,
1996, Seller relies solely on reports made by Xxx X. Xxxxx and makes no
representation other than those reports.
There is no fact known to Seller that has specific application to Seller,
or the Acquisition Assets (other than general economic or industry conditions)
that would have a Material Adverse Effect with respect to any of the foregoing
that has not been set forth in this Agreement or in the schedules attached
hereto. Seller is not aware of any document or information other than as
disclosed in Schedule 5.13 that contains information relevant to the condition
of or title to the Acquisition Assets or any of the transactions or activities
related thereto described in the documents referred to in Section 5.13.
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents, warrants and agrees to and with Seller as
follows:
Section 6.1 Limited Liability Company Existence.
Purchaser is a Limited Liability company duly organized, validly existing
and in good standing under the laws of the State of Nevada. Purchaser is duly
licensed or qualified as a foreign entity to do business, and, is in good
standing, in Nevada.
Section 6.2 Authority; Absence of Conflicts; Enforceability.
Purchaser has all requisite corporate power and authority to carry on its
business as presently conducted, to enter into this Agreement and to perform
its obligations under this Agreement. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all requisite corporate action on the part of Purchaser.
This Agreement has been duly and validly executed and delivered by Purchaser.
The consummation of the transactions contemplated by this Agreement will not
violate, or be in conflict with, any provision of Purchaser's charter, bylaws,
any agreement or instrument to which Purchaser is a party or by which
Purchaser is bound or any law applicable to Purchaser. There is no action,
claim, suit, arbitration, Investigation of proceeding pending or
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threatened against Purchaser which purports to affect the validity or
enforceability of this Agreement or that seeks to prohibit, restrict or delay
the consummation of the transactions contemplated hereby.
Section 6.3 Binding Agreement.
This Agreement constitutes, as of the date hereof, and this Agreement and
all documents and instruments required hereunder to be executed and delivered
by Purchaser at Closing will constitute, on the Closing Date, legal, valid and
binding obligations of Purchaser enforceable against Purchaser, as the case
may be, in accordance with their respective terms.
Section 6.4 Regulatory Approvals.
No filings or other regulatory approvals are required to be filed or
obtained by Purchaser in connection with the execution, delivery and
performance by Purchaser of this Agreement or Purchase Payment Agreement prior
to the consummation of the transactions contemplated herein.
Section 6.5 Acknowledgment
Purchaser acknowledges that Seller has no right to purchase the site on
which the Acquisition Assets are situated and that the Acquisition Assets
consist solely all of the State of Utah, Trust Lands Administration Coal
Leases owned by Seller as follows: ML43955, ML43952 and ML45963 (the
"Acquisition Assets").
ARTICLE VII COVENANTS
Section 7.1 Seller Covenants.
Seller jointly and severally covenant and agree with Purchaser as follows:
(a) Access. Except as permitted hereunder or contemplated hereby or
as consented to in writing by Purchaser, through the Closing Date Seller will
permit Purchaser to have full access to the Acquisition Assets.
(b) Public Announcements and Disclosure of Company Information.
Subject to applicable law, at all times until the Closing. Seller will
promptly advise of Purchaser before issuing, or permitting any of Seller's
directors, officers, representatives or agents to issue any press release with
respect to this Agreement or the transactions contemplated hereby.
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(c) Other Officers. Except in connection with the transactions
contemplated by this Agreement, from and after the date hereof, Seller shall
not, knowingly permit any of its officers, directors, representatives or
agents to, directly or indirectly, solicit, initiate or knowingly encourage
any offer or proposal for, or any indication of interest in, a merger or
business combination involving Seller or the acquisition of an equity interest
in Seller, or all or any a substantial portion of the Acquisition Assets.
(d) Representations and Warranties. Seller will cause the
representations and warranties contained in Article V hereof to be true and
correct through the Closing Date and shall ensure the satisfaction of the
conditions to Closing set forth in Section 8.1 hereof (other than Section 8.1
(g)).
(e) Further Assistance. Seller shall execute and deliver to
Purchaser, at the Closing or promptly thereafter, any other instrument which
may be requested by Purchaser and which is reasonably appropriate to perfect
or evidence the sales, assignments, transfers or conveyances contemplated by
this Agreement.
(f) Actions Related to Acquisition Assets. Seller shall not disturb
the soil on the site on which the Acquisition Assets are situated.
Section 7.2 Purchaser's Covenants.
Purchaser covenants and agrees with Seller as follows:
(a) Public Announcements and Disclosure of Company Information.
Subject to applicable law, at all times until the Closing Purchaser will
promptly advise, and obtain the approval of, Seller before issuing, or
permitting any of Purchaser's directors, officers, employees, representatives,
agents or subsidiaries to issue, any press release with respect to this
Agreement or the transactions contemplated hereby.
(b) Representations and Warranties. Purchaser will cause the
representations and warranties contained in Article VI hereof to continue to
be true and correct through the Closing Date and ensure the satisfaction of
the conditions to Closing set forth in Section 8.2 hereof (other than Section
8.2(d)).
ARTICLE VIII CONDITIONS TO CLOSING
Section 8.1 Conditions to Obligations of Purchaser.
The obligations of Purchaser to consummate the transactions contemplated
herein are subject, at the option of Purchaser, to satisfaction of the
following conditions:
(a) Compliance. Seller shall have complied with their covenants and
agreements contained herein, and the representations and warranties contained
in Article
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V hereof shall be true and correct on the date hereof and as of the Closing
Date as if made on such date.
(b) Seller's Affidavits. Purchaser shall have received a sworn
affidavit, dated the Closing Date, of Seller and of an executive officer of
Seller certifying as to the matters specified in Section 8.1(a) hereof.
(c) Sellers Resolutions. Seller shall deliver to Purchaser certified
copies of resolutions duly adopted by the board of directors of Seller
authorizing and approving the execution and delivery of this Agreement,
including the exhibits and schedules hereto, and the consummation of the
transactions contemplated herein.
(d) Transfer Documents. Seller shall execute and deliver to
Purchaser such bills of sale and other instruments of sale, transfer,
conveyance, assignment and delivery covering the Acquisition Assets or any
part thereof, executed by Seller or other appropriate parties, as Purchaser
may reasonably require to secure the full and effective sale, transfer,
conveyance, assignment and delivery to Purchaser of the Acquisition Assets,
including, but not limited to, the following:
(i) a general conveyance (the "Xxxx of Sale and Assignment")
transferring to Purchaser good and marketable title to all of the Acquisition
Assets, substantially in the form of Exhibit A hereto;
(ii) such other instruments of transfer and assignment in
respect of the Acquisition Assets as Purchaser shall reasonably require and as
shall be consistent with the terms and provisions of this Agreement and The
Purchase Payment Agreement. Prior to the Closing Date, Seller will take such
reasonable steps as may be requisite or appropriate so that no later than the
close of business on the Closing Date, Purchaser will be in actual ownership
and control of all of the Acquisition Assets only subject to The Purchase
Payment Agreement.
(g) Orders, Etc. No action, suit or proceeding shall have been
commenced or shall be pending or threatened, and no statute, rule, regulation
or order shall have been enacted, promulgated, issued or deemed applicable to
the transactions contemplated by this Agreement, by any Governmental Authority
or court that reasonably may be expected to (i) prohibit Purchaser's ownership
or operation of all or a material portion of the Acquisition Assets as a
result of the transactions contemplated by this Agreement or (ii) prohibit
consummation of the transaction contemplated by this Agreement.
(h) Consents. All consents and approvals required in connection
with the execution, delivery and performance by Seller of this Agreement shall
have been obtained.
(i) Other Documents. Seller shall deliver to Purchaser such other
documents, instruments and certificates as may be reasonably requested by
Purchaser.
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(j) Condemnation; Condition. No condemnation proceedings shall have
been initiated or threatened with respect to any of the Acquisition Assets.
Section 8.2 Conditions to Obligations of Seller.
The obligations of Seller to consummate the transactions contemplated
herein are subject, at the option of Seller, to satisfaction of the fo1lowing
conditions:
(a) Compliance. Purchaser shall have complied with its covenants
and agreements contained herein, and the representations and warranties
contained in Article VI hereof shall be true and correct on the date hereof
and as of the Closing Date.
(b) Purchaser's Certificate. Seller shall have received a
certificate, dated the Closing Date, of an executive officer of Purchaser
certifying as to the matters specified in Section 8.2(a) hereof.
(c) Purchaser's Resolutions. Purchaser shall deliver to Seller
certified copies of resolutions duly adopted by the board of directors of
Purchaser authorizing and approving the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein.
(d) Orders, Etc. No action, suit or proceeding shall have been
commenced or shall be pending or threatened, and no statute, rule, regulation
or order shall have been enacted, promulgated, issued or deemed applicable to
the transactions contemplated by this Agreement, by any Governmental Authority
or court that reasonably may be expected to prohibit consummation of the
transactions contemplated by this Agreement.
(e) Consents. All consents and approvals required in connection
with the execution, delivery and performance by Purchaser of this Agreement
and Purchase Payment Agreement shall have been obtained.
(f) Other Documents. Purchaser shall deliver to Seller such other
documents, instruments and certificates as may be reasonably required by
Seller.
ARTICLE IX TERMINATION
Section 9.1 Grounds for Termination.
This Agreement may be terminated at any time prior to the Closing Date:
(a) By the mutual written agreement of Seller and Purchaser;
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(b) By Purchaser if any of the conditions set forth in Section 8.1
hereof shall have become incapable of fulfillment and shall not have been
waived by Purchaser;
(c) By Seller if any of the conditions set forth in Section 9.2
hereof shall have been incapable of fulfillment and shall not have been waived
by Seller;
(d) By Seller or Purchaser by written notice thereof to the other
if the transactions contemplated hereby shall not have been consummated on or
before September 8th 27, 1999, or such other date, if any, as Seller and
Purchaser shall agree upon in writing; or
(e) By Seller or Purchaser if the consummation of the transactions
contemplated hereby would violate any nonappealable final order, decree or
judgment of any court or Government Authority having competent jurisdiction
enjoining, restraining or otherwise preventing, or awarding substantial
damages in connection with, or imposing a material adverse condition upon, the
consummation of this Agreement or the transactions contemplated hereby;
provided, however, that a party shall not be allowed to exercise any right of
termination pursuant to this Section 9.1 if the event giving rise to such
termination right shall be due to the failure of the party seeking to
terminate this Agreement to perform or observe in any material respect any of
the covenants or agreements set forth herein to be performed or observed by
such party or the breach of warranty of such party.
Section 9.2 Effects of Termination.
The following provisions shall apply in the event of a termination of
this Agreement:
(a) Subject to subsections (b) and (c) of this Section 9.2, if
this Agreement is terminated by Seller or by Purchaser as permitted under
Section 9.1 hereof, such termination shall be without liability to any party
to this Agreement or any stockholder, director, officer, employee, agent or
representative of such party.
(b) If this Agreement is terminated as a result of breach of
warranty of Purchaser, or failure of Purchaser, to perform their respective
obligations hereunder, Seller shall have all available rights and remedies at
law and in equity, including the right to enforce specific performance.
(d) The parties hereto hereby agree that the provisions of
Sections 9.2, 11.1 and 11.5 and 11.7 hereof and Article X hereof shall survive
any termination of this Agreement.
ARTICLE X INDEMNIFICATION
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Section 10.1 Seller's Indemnity Obligations.
Seller, shall indemnify and hold Purchaser (including its affiliates and
their respective officers, directors, employees and agents) harmless from and
against any and all claims, actions, causes of action, arbitration's,
proceedings, losses, damages, liabilities, judgments and expenses (including,
without limitation, reasonable attorneys' fees) ("Indemnified Amounts")
incurred by Seller as a result of (a) any breach or misrepresentation in any
of the representations and warranties made by or on behalf of Seller in this
Agreement, (b) any violation or breach by Seller of or default by Seller under
the terms of this Agreement, (c) any act or omission by Seller, (d) any
action, claim, suit, arbitration, investigation or proceeding initiated by
Seller which purports to affect the validity or enforceability of this
Agreement or that seeks to prohibit, restrict or delay the consummation of the
transactions contemplated hereby, or (e) any liabilities or obligations of
Seller retained by Seller pursuant to this Agreement.
Section 10.2 Purchaser's Indemnity Obligations.
Purchaser shall indemnify and hold Seller (including its officers,
directors and agents) harmless from and against any and all Indemnified
Amounts incurred by Seller, as the case may be, as a result of (a) any breach
or misrepresentation in any of the representations and warranties made by or
on behalf of Purchaser in this Agreement, (b) any violation or breach by
Purchaser of or default by Purchaser under the terms of this Agreement, (c)
except for liabilities and obligations retained by Seller pursuant to this
Agreement, any act or omission occurring after the Closing Date by Purchaser
with respect to the Acquisition Assets.
Section 10.3 Indemnification Procedures.
All claims for indemnification under this Agreement shall be asserted and
resolved as follows:
(a) A party claiming indemnification under this Agreement (an
"Indemnified Party") shall with reasonable promptness (i) notify the party
from whom indemnification is sought (the "Indemnifying Party") of any third-
party claim or claims asserted against the Indemnified Party ("Third Party
Claim") for which indemnification is sought and (ii) transmit to the
Indemnifying Party a copy of all papers served with respect to such claim (if
any) and a written notice ("Claim Notice") containing a description in
reasonable detail of the nature of the Third Party Claim, an estimate of the
amount of damages attributable to the Third Party Claim to the extent feasible
(which estimate shall not be conclusive of the final amount of such claim) and
the basis of the Indemnified Party's request for indemnification under this
Agreement.
Within 30 days after receipt of any Claim Notice (the "Election Period"),
the Indemnifying Party shall notify the Indemnified Party (i) whether the
Indemnifying Party disputes its potential liability to the Indemnified Party
with respect to such Third Party Claim and (ii) whether the Indemnifying Party
desires, at the sole cost and expense of Indemnifying Party, to defend the
Indemnified Party against such Third Party Claim.
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If the Indemnifying Party notifies the Indemnified Party within the
Election Period that the Indemnifying Party elects to assume the defense of
the Third Party Claim, than the Indemnifying Party shall have the right to
defend, at its sole cost and expense (if the Indemnified Party is entitled to
indemnification hereunder), such Third Party Claim by all appropriate
proceedings, which proceedings shall be prosecuted diligently by the
Indemnifying Party to a final conclusion or settled at the discretion of the
Indemnifying Party in accordance with this Section 10.3(a). The Indemnifying
Party shall have full control of such defense and proceedings. The Indemnified
Party is hereby authorized, at the sole cost and expense of the Indemnifying
Party (but only if the Indemnified Party is entitled to indemnification
hereunder), to file, during the Election Period, any motion, answer or other
pleadings that the Indemnified Party shall reasonably deem necessary or
appropriate to protect its interests or those of the Indemnifying Party and
not prejudicial to the Indemnifying Party (it being understood and agreed that
if an Indemnified Party takes any such action that is materially prejudicial
and causes a final adjudication that is adverse to the Indemnifying Party, the
Indemnifying Part shall be relieved of its obligations hereunder with respect
to such Third Party Claim). If requested by the Indemnifying Party, the
Indemnified Party agrees to cooperate with the Indemnifying Party and its
counsel in contesting any Third Party Claim that the Indemnifying Party elects
to contest, including, without limitation, the making of any related
counterclaim against the person asserting the Third Party Claim or any cross-
complaint against any person. Except as otherwise provided herein, the
Indemnified Party may participate in, but not control, any defense or
settlement of any Third Party Claim controlled by the Indemnifying Party
pursuant to this Section 10.3 and shall bear its own costs and expenses with
respect to such participation.
If the Indemnifying Party fails to notify the Indemnified Party within
the Election Period that the Indemnifying Party elects to defend the
Indemnified Party pursuant to the preceding paragraph, or if the Indemnifying
Party elects to defend the Indemnified Party but fails to prosecute or settle
the Third Party Claim as herein provided, then the Indemnified Party shall
have the right to defend, at the sole cost and expense of the Indemnifying
Party (if the Indemnified Party is entitled to indemnification hereunder), the
Third Party Claim by all appropriate proceedings, which proceedings shall be
promptly and vigorously prosecuted by the Indemnified Party to a final
conclusion or settled. The Indemnified Party shall have full control of such
defense and proceedings. Notwithstanding the foregoing, if the Indemnifying
Party has delivered a written notice to the Indemnified Party to the effect
that the Indemnifying Party disputes its potential liability to the
Indemnified Party under this Article X and if such dispute is resolved in
favor of the Indemnifying Party, the Indemnifying Party shall not be required
to beat the costs and expenses of the Indemnified Party's defense pursuant to
this Section 10.3 or of the Indemnifying Party's participation therein at the
Indemnified Party's request, and the Indemnified Party shall reimburse the
Indemnifying Party in full for all costs and expenses of such litigation. The
Indemnifying Party may participate in, but not control, any defense or
settlement controlled by the Indemnified Party pursuant to this Section 10.3,
and the Indemnifying Party shall bear its own costs and expenses with respect
to such participation.
The Indemnifying Party shall not settle or compromise any Third Party
Claim unless (i) the terms of such compromise or settlement require no more
than the payment of money (i.e., such compromise or settlement does not
require the Indemnified Party to admit any wrongdoing
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or take or refrain from taking any action), (ii) the full amount of such
monetary compromise or settlement will be paid by the Indemnifying Party, and
(iii) the Indemnified Party receives as part of such settlement a legal,
binding and enforceable unconditional satisfaction and/or release, in form and
substance reasonably satisfactory to it, providing that such Third Party Claim
and any claimed liability of the Indemnified Party with respect thereto is
being fully satisfied by reason of such compromise or settlement and that the
Indemnified Party is being released from any and all obligations or
liabilities it may have with respect thereto. The Indemnified Party shall not
settle or admit liability to any Third Party Claim without the prior written
consent of the Indemnifying Party.
(b) In the event any Indemnified Party should have a claim against any
Indemnifying Party hereunder that does not involve a Third Party Claim, the
Indemnified Party shall transmit to the Indemnifying Party a written notice
(the "Indemnity Notice") describing in reasonable detail the nature of the
claim, an estimate of the amount of damages attributable to such claim to the
extent feasible (which estimate shall not be conclusive if the final amount of
such claim) and the basis of the Indemnified Party's request for
indemnification under this Agreement.
Section 10.4 Determination of Indemnified Amounts.
The Indemnified Amounts payable by an Indemnifying Party hereunder shall
be determined (i) by the written agreement of the parties, (ii) by a final
judgment or decree of any court of competent jurisdiction, or (iii) by any
other means agreed to in writing by the parties. A judgment or decree of a
court shall be deemed final when the time for appeal, if any, shall have
expired and no appeal shall have been taken or when all appeals taken have
been fully determined. The Indemnified Party shall have the burden of proving
the Indemnified Amounts suffered by the Indemnified Party.
ARTICLE X1 MISCELLANEOUS
Section 11.1 Commissions.
Seller and Purchaser each represent and warrant that it has done nothing
to create any liability for the payment of any commission or compensation in
the nature of a finder's fee or similar fee to any broker or any other Person
in connection with this Agreement and the transactions contemplated hereby.
Seller, shall indemnify and hold Purchaser harmless from and against any and
all claims for finders' fees, brokers' commissions or similar fees made by any
party as a result of this Agreement and the transactions contemplated
hereunder to the extent that any such commission or fee was incurred, or
alleged to have been incurred, by, through or under Seller. Purchaser shall
indemnify and hold Seller harmless from and against any and all claims for
finders' fees, brokers' commissions or similar fees made by any party as a
result of this Agreement and transactions contemplated hereunder to the extent
that any such commission was incurred, or alleged to have been incurred, by,
through or under Purchaser.
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Section 11.2 Survival.
Except as otherwise provided herein, the representations and warranties
set forth in this Agreement and in any certificate or instrument delivered in
Connection herewith shall be continuing and shall survive the Closing for a
period of four (4) years, notwithstanding any investigation at any time made
by or on behalf of Purchaser, but shall thereafter terminate and be of no
further force or effect; provided, however, that in the case of all
representations and warranties, there shall be no such termination with
respect to any such representation or warranty as to which a bona fide claim
has been asserted by written notice of such claim delivered to the party or
parties making such representation or warranty prior to the expiration of the
survival period.
Section 11.3 Expenses.
Except as other expressly provided herein, each party shall bear its own
expenses incurred in connection with the negotiation, preparation and
execution of this Agreement and the transactions contemplated hereby,
including its own consultant's fees, attorneys' fees, accountants' fees,
Purchase fees and other similar costs and expenses.
Section 11.4 Notice.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been received only if and when (i) personally
delivered or (ii) on receipt after mailing, by United States mail, first
class, postage prepaid, by certified mail return receipt requested, or by
facsimile transmission to the respective parties, addressed in each case as
follows (or to such other address as may be specified by like notice):
(1) If to Seller, to:
Worldwide Energy, Inc.
0000 Xxx Xxx Xxxxx
Xxx Xxxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Fax No.: 000-000-0000
with a copy to:
X. X. Xxxxx
X.X. X 00000
Xxx Xxxxx, Xxxxxx 00000
Fax No. 000-000-0000
(2) If to Purchaser, to
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World-Link Capital, LLC.
0000 Xxxxxxx Xx. Xxxxx "X"
Xxx Xxxxx, Xxxxxx 00000
Section 11.5 Entire Agreement.
This Agreement, including all schedules and exhibits hereto, which
schedules or exhibits are incorporated herein by reference and deemed to be a
part of this Agreement, constitutes the entire agreement of the parties with
respect to the subject matter hereof, and may not be modified, amended or
terminated except by a written instrument specifically referring to this
Agreement signed by all the parties hereto.
Section 11.6 Governing Law; Venue.
This Agreement shall be governed, construed and enforced in accordance
with the laws of the State of Nevada without giving effect to the principles
of conflicts of laws thereof. Any legal action or proceeding with respect to
this Agreement shall be brought in the federal district courts located in Las
Vegas, Nevada. The parties waive any objection to jurisdiction or venue in
such jurisdiction.
Section 11.7 Assignments and Third Parties.
Except as otherwise provided herein, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. No party hereto shall assign this Agreement or any part hereof
without the prior written consent of the other party. No assignment shall
release a party of any of its obligations under this Agreement.
Section 11.8 Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any of the parties hereto. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
Section 11. 9 Amendments; No Waiver.
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Any provision of this Agreement may be amended or waived prior to the
Closing Date if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by all parties hereto, or in the case of
a waiver, by the party against whom the waiver is to be effective. No failure
or delay by any party to exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
Section 11.10 No Third Party Beneficiaries.
Nothing in this Agreement shall entitle any Person other than the parties
hereto or their respective successors and assigns permitted hereby to any
claim, cause of action, remedy or right of any kind.
Section 11.11 Headings; Use of Certain Terms.
The headings and table of contents herein are for convenience only and
shall have no significance in the interpretation hereof. Unless the context
shall otherwise require, the singular shall include the plural and vice versa,
and each pronoun in any gender shall include all other genders.
Section 11.12 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed for all purposes to be as original, but all of which
together shall constitute one and the same agreement.
Section 11.13 Arms-Length Transaction.
Seller acknowledges that this Agreement and the transactions contemplated
hereby constitute arms-length transactions and that Seller is receiving
reasonably equivalent value in exchange for the transfers contemplated by this
Agreement.
Section 11.14 Ancillary Documents Simultaneously Executed.
Simultaneously with the execution and deliver of this Agreement, the
parties and Escrow Agent are executing and delivering to one another an Escrow
Agreement providing for the handling of the escrow agent of the deposit. In
addition, Seller is delivering a Guaranty Agreement guaranteeing the
performance of the obligations of Seller under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement oil
the date first above written.
PURCHASER: SELLER:
WORLD LINK CAPITAL, LLC. WORLDWIDE ENERGY, INC.
By:/s/Xxxxxx Xxx Xxxxxx By:/s/Xxxxxxxx Xxxx, Xx.
Sept 8, 1999 9/8/99
