PURCHASE AND SALE AGREEMENT
By and Between
Xxxxx Petroleum Company and
Xxxxxxxxx Oil Company, Inc.
Dated November 8, 1996
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . . 1
1.1 "Affiliate". . . . . . . . . . . . . . . . . . . . . 1
1.2 "Agreement". . . . . . . . . . . . . . . . . . . . . 2
1.3 "Assets" . . . . . . . . . . . . . . . . . . . . . . 2
1.4 "Business Day" . . . . . . . . . . . . . . . . . . . 2
1.5 "Closing". . . . . . . . . . . . . . . . . . . . . . 2
1.6 "Code" . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 "Default". . . . . . . . . . . . . . . . . . . . . . 2
1.8 "Effective Date" . . . . . . . . . . . . . . . . . . 2
1.9 "Encumbrance". . . . . . . . . . . . . . . . . . . . 2
1.10 "Environmental Laws" . . . . . . . . . . . . . . . . 2
1.11 "Escrow" . . . . . . . . . . . . . . . . . . . . . . 3
1.12 "Financial Statements" . . . . . . . . . . . . . . . 3
1.13 "Governmental Entity". . . . . . . . . . . . . . . . 3
1.14 "Indemnifying Party" . . . . . . . . . . . . . . . . 3
1.15 "Indemnitee" . . . . . . . . . . . . . . . . . . . . 3
1.16 "IRS". . . . . . . . . . . . . . . . . . . . . . . . 3
1.17 "Material" . . . . . . . . . . . . . . . . . . . . . 3
1.18 "Mineral Interest" . . . . . . . . . . . . . . . . . 3
1.19 "Partnership Purchase Agreement" . . . . . . . . . . 4
1.20 "Permitted Encumbrances" . . . . . . . . . . . . . . 4
1.21 "Person" . . . . . . . . . . . . . . . . . . . . . . 4
1.22 "Requisite Regulatory Approvals" . . . . . . . . . . 4
1.23 "Shareholders" . . . . . . . . . . . . . . . . . . . 4
1.24 "TEC Purchase Agreement" . . . . . . . . . . . . . . 4
ARTICLE II THE PURCHASE AND SALE . . . . . . . . . . . . . 4
2.1 Transfer to Xxxxx. . . . . . . . . . . . . . . . . . 4
2.2 Purchase by Xxxxx. . . . . . . . . . . . . . . . . . 4
2.3 Payment of the Purchase Price. . . . . . . . . . . . 4
2.4 Operating Adjustment.. . . . . . . . . . . . . . . . 5
2.5 Assets to be Conveyed to Xxxxx.. . . . . . . . . . . 5
2.6 Allocation of Purchase Price . . . . . . . . . . . . 6
2.7 Closing. . . . . . . . . . . . . . . . . . . . . . . 6
2.8 Proration of Credits and Payment Obligations.. . . . 6
2.9 Real Estate and Other Taxes. . . . . . . . . . . . . 6
2.10 Documentation of Sale and Transfer of Ownership. . . 6
2.11 Approval of Title and Condition of the Section 32
Property . . . . . . . . . . . . . . . . . . . . . 7
2.12 Closing Procedure. . . . . . . . . . . . . . . . . . 7
2.13 Post Closing Access to Documents.. . . . . . . . . . 8
2.14 Escrow . . . . . . . . . . . . . . . . . . . . . . . 9
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX . . 9
3.1 Corporate Organization . . . . . . . . . . . . . . . 9
3.2 Effect of Agreement; Consents. . . . . . . . . . . . 9
3.3 Financial Statements . . . . . . . . . . . . . . . . 10
3.4 Taxes and Tax Returns. . . . . . . . . . . . . . . . 10
3.5 Absence of Adverse Change. . . . . . . . . . . . . . 10
3.6 No Misleading Statements . . . . . . . . . . . . . . 10
3.7 No Significant Transactions. . . . . . . . . . . . . 10
3.8 Properties, Title and Related Matters. . . . . . . . 11
3.9 Legal Proceedings. . . . . . . . . . . . . . . . . . 12
3.10 Records. . . . . . . . . . . . . . . . . . . . . . . 12
3.11 Contracts. . . . . . . . . . . . . . . . . . . . . . 12
3.12 Brokerage. . . . . . . . . . . . . . . . . . . . . . 12
3.13 Execution and Delivery . . . . . . . . . . . . . . . 13
3.14 Environmental Matters. . . . . . . . . . . . . . . . 13
3.15 Employees. . . . . . . . . . . . . . . . . . . . . . 14
3.16 Investigation. . . . . . . . . . . . . . . . . . . . 15
3.17 Operating Agreements . . . . . . . . . . . . . . . . 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF XXXXX . . . . 15
4.1 Corporate Organization . . . . . . . . . . . . . . . 15
4.2 Due Authorization, Execution and Delivery;
Effect of Agreement. . . . . . . . . . . . . . . . 15
4.3 Consents . . . . . . . . . . . . . . . . . . . . . . 16
4.4 Litigation . . . . . . . . . . . . . . . . . . . . . 16
4.5 Brokerage. . . . . . . . . . . . . . . . . . . . . . 16
4.6 Approvals. . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V COVENANTS OF XXXXXXXXX . . . . . . . . . . . . . . . 16
5.1 Access to Xxxxxxxxx. . . . . . . . . . . . . . . . . 16
5.2 Governmental Approvals; Consents . . . . . . . . . . 17
5.3 Litigation and Claims. . . . . . . . . . . . . . . . 17
5.4 Notice of Changes. . . . . . . . . . . . . . . . . . 17
5.5 Conduct of Business Operations . . . . . . . . . . . 18
5.6 Maintain Assets and Operations . . . . . . . . . . . 18
5.7 Exclusive Dealing. . . . . . . . . . . . . . . . . . 19
5.8 Termination Fee. . . . . . . . . . . . . . . . . . . 19
5.9 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 20
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ARTICLE VI COVENANTS OF XXXXX. . . . . . . . . . . . . . . 20
6.1 Cooperation. . . . . . . . . . . . . . . . . . . . . 20
6.2 Governmental Approvals . . . . . . . . . . . . . . . 20
6.3 Disclosure Responsibilities. . . . . . . . . . . . . 20
ARTICLE VII CONDITIONS TO OBLIGATIONS OF XXXXX. . . . . . . 21
7.1 Accuracy of Representations and Warranties . . . . . 21
7.2 Performance of Covenants and Agreements. . . . . . . 21
7.3 Consents . . . . . . . . . . . . . . . . . . . . . . 21
7.4 Governmental Approvals . . . . . . . . . . . . . . . 21
7.5 Approval of Counsel. . . . . . . . . . . . . . . . . 21
7.6 Officers' Certificate. . . . . . . . . . . . . . . . 21
7.7 Resolutions. . . . . . . . . . . . . . . . . . . . . 21
7.8 Opinion of Counsel . . . . . . . . . . . . . . . . . 21
7.9 Closing of Agreements. . . . . . . . . . . . . . . . 22
7.10 Condition of Section 32 Property . . . . . . . . . . 22
7.11 Good Standing Certificate. . . . . . . . . . . . . . 23
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF XXXXXXXXX. . . . . 24
8.1 Accuracy of Representations and Warranties . . . . . 24
8.2 Performance of Covenants and Agreements. . . . . . . 24
8.3 Resolutions. . . . . . . . . . . . . . . . . . . . . 24
8.4 Approval of Counsel. . . . . . . . . . . . . . . . . 24
8.5 Governmental Approvals . . . . . . . . . . . . . . . 24
8.6 Officers' Certificate. . . . . . . . . . . . . . . . 24
8.7 Opinion of Counsel . . . . . . . . . . . . . . . . . 24
8.8 Closing of Agreements. . . . . . . . . . . . . . . . 24
ARTICLE IX TERMINATION PRIOR TO CLOSING. . . . . . . . . . 25
9.1 Termination. . . . . . . . . . . . . . . . . . . . . 25
9.2 Effect on Obligations. . . . . . . . . . . . . . . . 25
ARTICLE X INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 25
10.1 Indemnification by Xxxxx . . . . . . . . . . . . . . 25
10.2 Indemnification by Xxxxxxxxx and the Shareholders. . 25
10.3 Survival . . . . . . . . . . . . . . . . . . . . . . 26
10.4 Notice and Opportunity to Defend . . . . . . . . . . 26
10.5 General. . . . . . . . . . . . . . . . . . . . . . . 27
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ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . 27
11.1 Entire Agreement . . . . . . . . . . . . . . . . . . 27
11.2 Successors and Assigns . . . . . . . . . . . . . . . 28
11.3 Expenses . . . . . . . . . . . . . . . . . . . . . . 28
11.4 Taking of Necessary Action . . . . . . . . . . . . . 28
11.5 Invalidity . . . . . . . . . . . . . . . . . . . . . 28
11.6 Attorneys' Fees. . . . . . . . . . . . . . . . . . . 28
11.7 Counterparts . . . . . . . . . . . . . . . . . . . . 29
11.8 Headings . . . . . . . . . . . . . . . . . . . . . . 29
11.9 Construction and References. . . . . . . . . . . . . 29
11.10 Modification and Waiver . . . . . . . . . . . . 29
11.11 Notices . . . . . . . . . . . . . . . . . . . . 29
11.12 Public Announcements. . . . . . . . . . . . . . 31
11.13 Governing Law; Interpretation . . . . . . . . . 31
11.14 Jurisdiction. . . . . . . . . . . . . . . . . . 32
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LIST OF EXHIBITS
Exhibit Number
Grant Deed . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Xxxx of Sale . . . . . . . . . . . . . . . . . . . . . . . . . 2
Assignment of Leases, Rights of Way, Easements,
and Contracts (Unrecorded Documents). . . . . . . . . . . 3
Assignment of Leases, Rights of Way, Easements,
and Contracts (Recorded Documents). . . . . . . . . . . . 4
Allocation of Purchase Price . . . . . . . . . . . . . . . . . 5
Certificate of Satisfaction. . . . . . . . . . . . . . . . . . 6
Escrow Instructions. . . . . . . . . . . . . . . . . . . . . . 7
Certificate of Compliance of Xxxxxxxxx . . . . . . . . . . . . 8
Opinion of Counsel to Xxxxxxxxx. . . . . . . . . . . . . . . . 9
Certificate of Compliance of Xxxxx . . . . . . . . . . . . . . 10
Opinion of Counsel to Xxxxx. . . . . . . . . . . . . . . . . . 11
1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated, for the
convenience of the parties hereto, November 8, 1996, by and between Xxxxx
Petroleum Company, a Delaware corporation ("Xxxxx"), and Xxxxxxxxx Oil
Company, Inc., a California corporation ("Xxxxxxxxx").
RECITALS:
X. Xxxxx and Xxxxxxxxx have determined that it is in their
respective best interests for Xxxxx to purchase substantially all of the assets
owned by Xxxxxxxxx, upon the terms and subject to the conditions set forth
herein;
B. In furtherance thereof, it is proposed that Xxxxx shall purchase
from Xxxxxxxxx for Nine Hundred Thirty Thousand Dollars ($930,000) cash
substantially all of the assets of Xxxxxxxxx in fee, and with clear title,
free of debt, subject to the reservation by Xxxxxxxxx of a royalty interest of
four percent (4%) of all gas, oil and other hydrocarbon substances produced
from all zones lying below 4,500 feet below the surface of the Xxxxxxxxx real
property purchased under the terms of this Agreement; and
X. Xxxxx and Xxxxxxxxx have entered into an Agreement in Principle
and Exclusive Dealing Agreement dated August 15, 1996 ("AIP"), and wish to set
forth the representations, warranties, agreements and conditions under which
the purchase and sale will occur in this Definitive Agreement, as defined in
Section 6 of the AIP, which upon execution will supersede the AIP.
NOW, THEREFORE, in consideration of the premises, representations,
warranties and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Xxxxx and Xxxxxxxxx and its Shareholders hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings
given to them in this Article I, unless defined elsewhere in this Agreement.
1.1 "Affiliate" shall mean with respect to any Person, an individual
or entity that, directly or indirectly, controls, is controlled by or is under
common control with such Person.
2
1.2 "Agreement" shall have the meaning such term is given in the
introductory paragraph hereof.
1.3 "Assets" shall mean substantially all the tangible and
intangible, real, personal and mixed assets and properties of Xxxxxxxxx,
including but not limited to the real property described in the Grant Deed
attached hereto as Exhibit 1 and made a part hereof ("Section 32 Property"),
excluding only cash, receivables and certain prepaid items, as described in
Section 2.5 hereof. "Asset" shall mean any such asset or property of Xxxxxxxxx.
1.4 "Business Day" shall mean any day other than Saturday, Sunday or
other days on which federally chartered commercial banks in California are
authorized by law to close.
1.5 "Closing" shall have the meaning such term is given in Section
2.7 hereof.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.7 "Default" shall mean, as to any party to this Agreement, (a) a
default by such party in the performance of any of its material obligations
hereunder and the continuation of such default for a period of five (5)
Business Days after written notice is delivered by the non-defaulting party to
the defaulting party that a default has occurred or (b) the breach of any
representation or warranty hereunder.
1.8 "Effective Date" shall have the meaning such term is given in
paragraph 2.4a hereof.
1.9 "Encumbrance" shall mean any security interest, mortgage,
pledge, claim, lien, charge, option, defect, encumbrance, or other right or
interest of any nature.
1.10 "Environmental Laws" shall be broadly construed to mean any and
all federal, state or local laws, statutes, ordinances, rules, regulations,
orders, or determinations of any Governmental Entity pertaining to the
environment heretofore or currently in effect in any and all jurisdictions in
which Xxxxxxxxx is conducting or at any time has conducted business, or where
any of the Assets are located, or where any hazardous substances generated by
or disposed of by Xxxxxxxxx are located. "Environmental Laws" shall include,
but shall not be limited to, the federal Clean Air Act, as amended; the
federal Comprehensive Environmental, Response, Compensation, and Liability Act
of 1980 ("CERCLA"), as amended; the federal Water Pollution Control Act, as
amended; the federal Resource Conservation and Recovery Act of 1976, as
amended ("RCRA"); the federal Safe Drinking Water Act, as amended; the federal
Toxic Substances Control Act, as amended; the federal Superfund Amendments and
Reauthorization Act of 1986, as amended; the federal Clean Water Act, as
amended; or any state laws or regulations similar or analogous to or in
implementation of these provisions; the California State Business Plan Law,
California Health and Safety Code Section 25500 et seq.; the Hazardous
Substance Account Act, Health and Safety Code Section 25300 et seq.; the
Hazardous Waste Control Law, Health and Safety Code Section 25100 et seq.;
Chapter 6.7 of Division 20 of the Health and Safety Code, Section 25280
et seq.; the Safe Drinking Water and
3
Toxic Enforcement Act of 1986 ("Proposition 65"); Health and Safety Code
Section 25249.5 et seq.; Division 26 of the Health and Safety Code, Section
39000 et seq.; the Xxxxxx-Cologne Act, Water Code Section 13000 et seq.; and
any other successor or amendments thereto, or implementing regulations thereof;
and all other laws, statutes, ordinances, rules, regulations, orders and
determinations of any Governmental Entity relating to (a) the control of any
potential pollutant or protection of the air, water or land; (b) solid, gaseous
or liquid waste generation, handling, treatment, storage, disposal or
transportation; and (c) exposure to hazardous, toxic or other substances
alleged to be harmful. The terms "hazardous substance," "release" and
"threatened release" have the meanings specified in CERCLA, and the terms
"solid waste" and "disposal" (or "disposed") have the meanings specified in
RCRA; provided, however, that, to the extent the laws of the state in which any
Assets are or were located currently or subsequently provide for a meaning for
"hazardous substance," "release," "solid waste" or "disposal" which is broader
than that specified in either CERCLA or RCRA, such broader meaning shall apply.
1.11 "Escrow" shall mean the escrow account established by Xxxxx and
Xxxxxxxxx with First American Title Insurance Company pursuant to Section 2.14
hereof.
1.12 "Financial Statements" shall have the meaning such term is given
in Section 3.3 hereof.
1.13 "Governmental Entity" shall mean the United States of America,
any state, county, city, municipality and any subdivision thereof, any court,
administrative or regulatory agency, commission, department or body or other
governmental authority or instrumentality or any entity or Person exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
1.14 "Indemnifying Party" shall have the meaning such term is given
in paragraph 10.4a hereof.
1.15 "Indemnitee" shall have the meaning such term is given in
paragraph 10.4a hereof.
1.16 "IRS" shall mean the Internal Revenue Service.
1.17 "Material" means any condition, change or effect that,
individually or when taken together with all other such conditions, changes
or effects that existed or occurred prior to the date of determination of the
existence or occurrence of the material condition, change or effect, is or is
reasonably likely to be materially adverse to the business, assets (including
intangible assets), financial condition or results of operations of Xxxxx or
Xxxxxxxxx respectively, in each case taken as a whole.
1.18 "Mineral Interest" shall mean the right to extract oil, gas and
other hydrocarbons, unrestricted as to depth and with unlimited surface access
for such purpose.
4
1.19 "Partnership Purchase Agreement" shall have the meaning such
term is given in paragraph 2.12c hereof.
1.20 "Permitted Encumbrances" shall mean encumbrances which Xxxxx
accepts, in writing, including, but not limited to, encumbrances revealed on
the preliminary title report approved by Xxxxx as provided in this Agreement.
1.21 "Person" shall mean any individual, corporation, association,
partnership, joint venture, trust, estate, unincorporated organization or
Governmental Entity.
1.22 "Requisite Regulatory Approvals" shall have the meaning such
term is given in paragraph 5.2a hereof.
1.23 "Shareholders" shall mean the shareholders of Xxxxxxxxx.
1.24 "TEC Purchase Agreement" shall have the meaning such term is
given in paragraph 2.12c hereof.
ARTICLE II
THE PURCHASE AND SALE
2.1 Transfer to Xxxxx. In accordance with the provisions of this
Agreement, Xxxxxxxxx shall transfer and convey the Assets to Xxxxx free and
clear of all liens and encumbrances (other than Permitted Encumbrances)
pursuant to a Grant Deed, Xxxx of Sale, Assignment of Leases, Rights of Way,
Easements and Contracts (Unrecorded Documents), and Assignment of Leases,
Rights of Way, Easements and Contracts (Recorded Documents) in the forms
of Exhibits 1, 2, 3 and 4, respectively, attached hereto and made a part hereof
(collectively, the "Instruments of Transfer") to be delivered at the Closing
in accordance with the provisions relating to the Closing, and Xxxxx will
acquire such Assets from Xxxxxxxxx.
2.2 Purchase by Xxxxx. Xxxxx, in reliance upon the covenants,
representations, warranties and indemnities of Xxxxxxxxx contained herein,
hereby agrees to purchase the Assets from Xxxxxxxxx for the purchase price
(the "Purchase Price") stated in Section 2.3 hereof.
2.3 Payment of the Purchase Price. As payment for the transfer and
conveyance of the Assets by Xxxxxxxxx to Berry, Berry shall deliver to Escrow
for the benefit of Xxxxxxxxx or its nominees at the Closing, in accordance
with the provisions related to the Closing, a wire transfer with immediately
available funds in the amount of Nine Hundred Thirty Thousand Dollars
($930,000) to an account specified by the Escrow Agent (as herein defined)
prior to the Closing. The transaction shall be subject to a post-closing
operating adjustment as provided in Section 2.4 hereof ("Operating
Adjustment"). The Operating Adjustment shall not be handled through Escrow.
5
2.4 Operating Adjustment.
a. October 1, 1996, at 12:01 a.m. shall be considered the
"Effective Date" of this Agreement, and the oil and gas operations included in
the Assets shall be deemed to be for the account of Xxxxx from and after that
date. The Operating Adjustment will occur after the Closing in an amount equal
to the difference between (i) the value of oil and gas produced by Xxxxxxxxx
after the Effective Date and (ii) the normal cost of producing oil and gas
after the Effective Date, as determined by Xxxxxxxxx'x customary accounting
method adjusted to reflect only necessary operating revenues and expenses
which would have been credited to or incurred by Xxxxx had this transaction
closed on the Effective Date. The oil tanks shall be gauged at 12:01 a.m. on
the Effective Date. The value of oil and gas produced by Xxxxxxxxx after
the Effective Date shall be the net sales after royalties adjusted for the
change in inventory between the Effective Date and the Closing. If the value
of the oil and gas produced after the Effective Date is greater than said
cost, then Xxxxxxxxx shall pay Xxxxx an Operating Adjustment equal to the
amount of the difference. If the value of the oil and gas produced after
the Effective Date is less than said cost, then Xxxxx shall pay Xxxxxxxxx an
Operating Adjustment equal to the amount of the difference.
b. In the event Xxxxxxxxx does not provide Xxxxx with its
calculation of the Operating Adjustment (the "Calculation") prior to the
Closing, Xxxxxxxxx shall provide Xxxxx with the Calculation within sixty (60)
days after the Closing. Xxxxx shall have immediate access at reasonable times
to such books, records and invoices of Xxxxxxxxx as it deems necessary to
verify the Calculation. If Xxxxx does not object to the Calculation within ten
(10) days after receipt thereof by Xxxxx, it shall be deemed to be final and
binding upon the parties hereto. If Xxxxx objects to the Calculation within
such ten (10) days by specifying the items to which it objects, then the
parties will attempt to mutually resolve any differences. If the differences
cannot be resolved within twenty (20) days after Xxxxx'x objection to the
Calculation, then all amounts agreed to shall be paid as provided below and
the difference shall be resolved by arbitration under the Commercial
Arbitration rules of the American Arbitration Association. The costs of
arbitration shall be shared equally by the parties. This Section 2.4 is the
only Section or part of this Agreement which is subject to arbitration
jurisdiction.
c. Within three (3) days of the final determination of the
Calculation, the party required to make the Operating Adjustment payment shall
pay, via wire if requested, the Operating Adjustment payment agreed upon to
the other party.
d. For managing Xxxxxxxxx subsequent to September 30, 1996,
Xxxxxxxxx shall only be entitled to be credited for management fees at the rate
of Ten Dollars ($10) per day and shall not be entitled to reimbursement of
overhead costs for legal expenses, accounting costs, loan fees and interest,
contributions, dues and assessments, 401K retirement costs or excessive travel
or entertainment costs or expenses.
2.5 Assets to be Conveyed to Xxxxx. The Assets to be conveyed to
Xxxxx by Xxxxxxxxx are the following assets owned and/or operated by Xxxxxxxxx:
(a) all of the Section 32 Property, all oil and gas leases, and interests,
easements and rights of way included in the
6
operations of Xxxxxxxxx, including one hundred percent (100%) of the Mineral
Interests in the Section 32 Property (except a royalty interest of four percent
(4%)), all as more particularly described in the Instruments of Transfer
("the Real Property"); (b) all of the buildings, structures, tanks and
pipelines on or under the property owned and/or operated by Xxxxxxxxx, as are
described in the Disclosure Letter from Xxxxxxxxx delivered to Xxxxx at or
prior to execution hereof, which shall refer to the Sections of this Agreement
(the "Xxxxxxxxx Disclosure Letter"); and (c) all equipment and supplies related
to or utilized in operating the oil properties and facilities owned and/or
operated by Xxxxxxxxx as described in the Xxxxxxxxx Disclosure Letter. Any
asset of Xxxxxxxxx not described in the Instruments of Transfer or the
Xxxxxxxxx Disclosure Letter shall be conveyed to Xxxxx subject to Xxxxx'x
right, in its sole discretion, to refuse to accept such asset by written
notice to Xxxxxxxxx within thirty (30) days after Xxxxx receives written
notice from Xxxxxxxxx that the asset is included in the Assets.
2.6 Allocation of Purchase Price. The parties agree to allocate the
Purchase Price for the Assets acquired in accordance with the terms of Code
Section 1060 and the Treasury Regulations promulgated thereunder, and to report
this transaction for federal and state tax purposes in accordance with the
agreed-upon allocation in the form of Exhibit 5 attached hereto and made a part
hereof.
2.7 Closing. Subject to the provisions of Articles VII and VIII,
the closing (the "Closing") shall take place at 10 a.m., Pacific Standard Time,
at the offices of Xxxxx Petroleum Company, 00000 Xxxxx Xxxxx Xxxx, Xxxx,
Xxxxxxxxxx, xx such date prior to December 1, 1996, as to which Xxxxx and
Xxxxxxxxx shall mutually agree. By written notice to the other party, either
Xxxxx or Xxxxxxxxx shall have the right to extend the Closing an additional
forty-five (45) days in the event that either party is not in a position to
close by December 1, 1996.
2.8 Proration of Credits and Payment Obligations. All credits and
payment obligations associated with the Assets, including but not limited to
royalties, lease rentals and other forms of contractual payments, shall be
prorated between Xxxxxxxxx and Xxxxx as of the Effective Date. Xxxxxxxxx shall
be responsible and shall pay for all such items due, incurred or attributable
to the period prior to the Effective Date and Xxxxx shall be responsible and
shall pay for all such items due, incurred or attributable to the period after
such date.
2.9 Real Estate and Other Taxes. All real estate, occupation, ad
valorem, personal property and severance taxes and charges on any of the Assets
shall be prorated as of the Effective Date. Xxxxxxxxx shall pay all such items
for all periods prior to such date, however, Xxxxx shall be entitled to all
refunds and rebates with regard to such periods. In the event Xxxxx pays
additional taxes or charges which are assessed upon or levied against any of
the Assets after the Closing with respect to any period prior to the Effective
Date, Xxxxxxxxx shall promptly reimburse Xxxxx the amount thereof upon
presentation of a receipt therefor. If Xxxxxxxxx elects to challenge the
validity of such xxxx or any portion thereof, Xxxxx shall extend reasonable
cooperation to Xxxxxxxxx in such efforts, at no expense to Xxxxx.
2.10 Documentation of Sale and Transfer of Ownership. Except as
otherwise provided herein, the Assets to be conveyed by Xxxxxxxxx to Xxxxx
shall be conveyed pursuant
7
to the Instruments of Transfer in such form or forms customary and necessary
to properly transfer the Assets according to the requirements of any applicable
federal, state or local agency.
x. Xxxxxxxxx shall deliver the Assets to Xxxxx at the Closing
subject to the reservations, limitations, conditions and restrictions contained
in this Agreement and the Instruments of Transfer.
x. Xxxxxxxxx shall make available at Xxxxxxxxx'x offices or
such other place as deemed appropriate by Xxxxx until the Closing, during
normal business hours, for examination by Xxxxx, such title information
and abstracts as may then be available in Xxxxxxxxx'x files.
2.11 Approval of Title and Condition of the Section 32 Property.
Xxxxxxxxx has provided a preliminary title report on the Section 32 Property
to Xxxxx. Xxxxx shall accept or reject title and condition of the Section
32 Property, as provided in Section 7.10 hereof.
2.12 Closing Procedure. At the Closing through Escrow, the
transactions listed below shall occur, all subject to and conditioned upon
the execution and delivery of a Certificate of Satisfaction described in
paragraph 2.12e hereof.
x. Xxxxxxxxx shall deliver to Xxxxx originals (unless
otherwise noted) of each of the following documents:
(1) Certified resolutions of the Board of Directors of
Xxxxxxxxx authorizing the execution and delivery of this Agreement and the
transactions contemplated hereby.
(2) Good standing certificates for Xxxxxxxxx from the
Secretary of State and Franchise Tax Board issued by appropriate state
officials for the State of California, certifying to the status as of a date
as close as practical to the Closing.
(3) Executed Instruments of Transfer.
(4) All leases, contracts, agreements, indentures and
other instruments described in or attached to the Xxxxxxxxx Disclosure Letter.
(5) Executed Certificate of Compliance of Xxxxxxxxx.
(6) Executed Opinion of Counsel to Xxxxxxxxx.
(7) A CLTA Policy of Title Insurance on the Section 32
Property if Xxxxx elects not to obtain an ALTA Policy.
(8) Xxxxxxxxx Disclosure Letter.
8
x. Xxxxx shall deliver to Xxxxxxxxx originals (unless
otherwise noted) of each of the following documents:
(1) Certified resolutions of the Board of Directors of
Xxxxx authorizing the execution and delivery of this Agreement and the
transactions contemplated hereby.
(2) Executed Certificate of Compliance of Xxxxx.
(3) Executed Opinion of Counsel to Xxxxx.
(4) Xxxxx Disclosure Letter.
x. Xxxxx and Xxxxxxxxx will execute and mutually deliver
two (2) originals of a statement that the Purchase and Sale Agreement between
Xxxxx and Xxxxxxxxx Oil Company, a general partnership, et al., dated
November 8, 1996 (the "Partnership Purchase Agreement") and the Purchase and
Sale Agreement between Xxxxx and Xxxxxxxxx Electric Company, Inc., a
California corporation, dated November 8, 1996 (the "TEC Purchase Agreement")
are in a condition to close.
x. Xxxxx will deliver to Xxxxxxxxx the Purchase Price as
provided in Section 2.3 hereof.
x. Xxxxx and Xxxxxxxxx will execute and mutually deliver
two (2) originals of the Certificate of Satisfaction in the form of Exhibit 6
attached hereto and made a part hereof.
2.13 Post Closing Access to Documents. Xxxxxxxxx has assigned its
interest in litigation with Xxxxx Performance Chemicals, Inc. (the "Xxxxx
Litigation"), involving the alleged use of ineffective, diluted or blended
chemicals in the treatment of oil and water on the Xxxxxxxxx property, to
Xxxxxxxxx Oil Company, a general partnership, but Xxxxxxxxx remains obligated
to provide Xxxxxxxxx Oil Company, a general partnership, with documents
necessary to support the litigation. Xxxxx shall afford to Xxxxxxxxx and to
the employees, agents and authorized representatives of Xxxxxxxxx such
reasonable access to the files, agreements, documents and books and records of
Xxxxxxxxx for periods prior to the Closing as may be requested by Xxxxxxxxx in
order that Xxxxxxxxx may have full opportunity to obtain information
reasonably necessary in connection with the Xxxxx Litigation. Xxxxxxxxx hereby
releases Xxxxx from all liability arising out of the entry by Xxxxxxxxx or its
employees, agents or authorized representatives onto the business premises of
Xxxxx for purposes of obtaining such information. Xxxxxxxxx hereby agrees to
indemnify, defend and hold Xxxxx harmless against all liability, demands,
claims, costs, losses, damages, recoveries, settlements and expenses incurred
by Xxxxx arising from or related to the conduct by Xxxxxxxxx or its employees,
agents and authorized representatives in connection with obtaining such
information. Xxxxxxxxx will cooperate with Xxxxx and its agents on any
post-closing audit or financial review that is required of Xxxxx due to the
transactions contemplated by this Agreement.
9
2.14 Escrow. First American Title Insurance Company, a California
corporation, whose address is 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, X.X. Xxx 0000,
Xxxxxxxxxxx, Xxxxxxxxxx 00000, is hereby appointed to act as escrow agent
("Escrow Agent") to conduct the purchase and sale of the Assets. Xxxxx and
Xxxxxxxxx shall execute instructions to the Escrow Agent, substantially in the
form of Exhibit 7 attached hereto and made a part hereof, to provide for the
payment of liabilities secured by the Assets and the release of Encumbrances,
other than Permitted Encumbrances, against the Assets. Xxxxx and Xxxxxxxxx
further agree that Xxxxxxxxx shall be responsible for and pay for all Escrow
fees and charges.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX
Except as set forth in the Xxxxxxxxx Disclosure Letter, Xxxxxxxxx
hereby represents and warrants to and covenants with Xxxxx as follows:
3.1 Corporate Organization. Xxxxxxxxx is a corporation duly
organized, validly existing and in good standing under the laws of the State
of California and has full power and authority to conduct its business as
currently conducted and to own, operate and lease the Assets it now owns,
operates or holds under lease.
3.2 Effect of Agreement; Consents.
a. The execution, delivery and performance of this Agreement
by Xxxxxxxxx and the consummation by Xxxxxxxxx of the transactions contemplated
hereby (i) do not require the consent, approval, clearance, waiver, order or
authorization of any Person; (ii) do not violate any provision of the Articles
of Incorporation or Bylaws of Xxxxxxxxx; (iii) do not conflict with or violate
any permit, concession, grant, franchise, statute, law, rule or regulation of
any Governmental Entity or any order, judgment, award or decree of any court
or other Governmental Entity to which Xxxxxxxxx is subject or any of the Assets
are bound; and (iv) do not conflict with, or result in any breach of, or
default or loss of any right under (or an event or circumstance that, with
notice or the lapse of time, or both, would result in a default), or the
creation of any Encumbrance pursuant to, or cause or permit the acceleration
prior to maturity of any amounts owing under any indenture, mortgage, deed of
trust, lease or other agreement to which Xxxxxxxxx is a party or to which any
of the Assets are subject, in each case, which failure, violation, conflict
or breach would, in the aggregate, materially hinder or impair the consummation
of the transactions contemplated by this Agreement.
b. The execution, delivery and performance of this Agreement
by Xxxxxxxxx will not result in the loss of any governmental license, franchise
or permit possessed by Xxxxxxxxx related to the Assets or give a right of
acceleration or termination to any party to any agreement or other instrument
to which Xxxxxxxxx is a party and by which the Assets are bound, or result in
the loss of any right or benefit under such agreement or instrument.
10
3.3 Financial Statements. Xxxxxxxxx has heretofore furnished to
Xxxxx true and correct copies of the balance sheets of Xxxxxxxxx as of December
31, 1994, December 31, 1995, and September 30, 1996, and the related
statements of revenue and expenses for the periods then ended (collectively,
the "Financial Statements"). The Financial Statements have been prepared in
accordance with the books and records of Xxxxxxxxx and in conformity with
historical accounting principles applied, except as otherwise noted therein,
on a basis consistent with prior periods, and fairly present, in all material
respects, the financial position and results of operations of Xxxxxxxxx as at
and for the periods specified therein. As of September 30, 1996, Xxxxxxxxx
did not have any liability of any kind or manner, either direct, accrued,
absolute or otherwise, which was required to be disclosed by accepted
accounting principles and which was not reflected or disclosed in the
Financial Statements and there have been no changes in Xxxxxxxxx'x method of
accounting for tax purposes or other purposes, except as disclosed in the
Xxxxxxxxx Disclosure Letter.
3.4 Taxes and Tax Returns. Xxxxxxxxx has filed all federal, state,
local and foreign income and other tax returns required to be filed by it, and
each such return is complete and accurate in all material respects. The taxes
shown due on such returns have been paid and there are no taxes, interest,
penalties, assessments or deficiencies (any of the foregoing being referred
to herein as a "Tax") claimed to be due in respect of such tax returns or
claimed in writing to be due by any taxing authority. The tax returns of
Xxxxxxxxx have not been audited by the IRS, nor has Xxxxxxxxx received notice
of any examination being conducted by the IRS or any other taxing authority
for any fiscal year. All other taxes, including property taxes, imposed by the
United States and by any state, municipality, subdivision or instrumentality of
the United States, or other taxing authority, which are due and payable by
Xxxxxxxxx have been paid in full or will be paid or provided for up to the
Closing date.
3.5 Absence of Adverse Change. Since December 31, 1995, there has
not been (a) any Material adverse change in the condition of the Assets to be
acquired by Xxxxx; (b) any damage, destruction or loss adversely affecting the
Assets; (c) any incurrence by Xxxxxxxxx of or entry into any liability,
mortgage, lien or transaction affecting the Assets; (d) any guarantee of or
grant of a security interest to secure a third Person's obligations by
Xxxxxxxxx; (e) except as provided in the Xxxxxxxxx Disclosure Letter, any
commitment by Xxxxxxxxx relating to the Assets; or (f) any agreement, in
writing or otherwise, with respect to the foregoing. No event or condition has
occurred or exists and Xxxxxxxxx is not aware of any event or condition that
has occurred or exists and that could result in a Material adverse change in
the Assets since December 31, 1995.
3.6 No Misleading Statements. This Agreement, the exhibits hereto
and the information referred to herein, when taken as a whole, do not include
any untrue statement of a material fact and do not omit any material fact
necessary to make the statements contained herein or therein not misleading.
3.7 No Significant Transactions. Except for the execution of this
Agreement, Xxxxxxxxx has not engaged in any Material transactions and will not
engage in any Material transactions prior to the Closing.
11
3.8 Properties, Title and Related Matters.
x. Xxxxxxxxx has good title to all of the personal property
included in the Assets free and clear of all Encumbrances, except for Permitted
Encumbrances.
b. Other than the Section 32 Property, there is no real
property owned by Xxxxxxxxx. The Section 32 Property is not subject to any
governmental decree or is not being condemned, expropriated or otherwise
taken by any public authority, with or without payment of compensation
therefor, and no such condemnation, expropriation or taking has been proposed.
The Xxxxxxxxx Disclosure Letter contains a description of all buildings,
structures, improvements, tanks and pipes or other fixtures located on or under
the Section 32 Property.
c. Other than as set forth in Exhibits 3 and 4, Xxxxxxxxx has
no easements or rights of way and no real property is leased by Xxxxxxxxx.
Xxxxxxxxx has not breached any provision of and is not in default (and no
event or circumstance exists that with notice or the lapse of time, or both,
would constitute a default) under the terms of any easement, right of way or
other agreement pursuant to which the Real Property is held and all of such
easements, rights of way or other agreements are in full force and effect.
There are no pending or threatened disputes with respect to any easement,
right of way or other agreement pursuant to which the Real Property is held and
the lessor or grantor thereunder has not breached any provision of and is not
in default (and no event or circumstance exists that with notice or the lapse
of time, or both, would constitute a default) under the terms of any such
easement, right of way or other agreement. The Xxxxxxxxx Disclosure Letter
contains a description of all structures, improvements, tanks and pipes or
other fixtures located on or under any easements or rights of way described in
Exhibits 3 and 4.
d. Since the physical inspection by Xxxxx on September 5,
1996, the maintenance and operation of buildings, machinery, xxxxx, pipelines
and equipment of Xxxxxxxxx has been consistent with the past maintenance and
operation of such Assets, ordinary wear and tear excepted, and, except as
described in the Xxxxxxxxx Disclosure Letter, all machinery, xxxxx, pipelines
and equipment are operative in all material respects. Xxxxx shall acquire
such Assets AS IS and WHERE IS. Xxxxxxxxx makes no representations or
warranties as to the suitability of any Asset for any particular use.
e. Attached to the Xxxxxxxxx Disclosure Letter is a correct
and complete list and copies of all policies of fire, liability and other forms
of insurance held by Xxxxxxxxx and presently in force with respect to the
Assets. Such policies are in full force and effect and assignable and
Xxxxxxxxx is not in default under any of them.
x. Xxxxxxxxx is not in material violation of and, except as
disclosed in the Xxxxxxxxx Disclosure Letter, Xxxxxxxxx has not received any
written notice of any violation of any zoning regulation, ordinance, law,
rule, order, regulation or requirement relating to the Assets or operation of
its leased or owned properties which remains uncured or which has not been
dismissed where failure to comply therewith would have a Material adverse
effect on Xxxxxxxxx or the Assets.
12
3.9 Legal Proceedings. Except as disclosed in the Xxxxxxxxx
Disclosure Letter, there is no legal, judicial, administrative or governmental
arbitration or other action or proceeding or governmental investigation pending
or threatened against Xxxxxxxxx or the Assets, or affecting any of the Assets
which, if adversely determined would have a Material adverse effect on the
Assets. Xxxxxxxxx is not in violation of or default under any laws,
ordinances, regulations, judgments, injunctions, orders or decrees (including,
without limitation, any immigration laws or regulations) of any court or other
Governmental Entity applicable to its business, which violations or defaults
would have a Material adverse effect on the Assets. There are no Material
judgments, orders, injunctions or decrees of any Governmental Entity in which
Xxxxxxxxx is a named party or any of the Assets are identified and subject.
Except for the SOCAL Litigation (as that term is defined in the TEC Purchase
Agreement), and the Xxxxx Litigation, there is no pending litigation in or to
which Xxxxxxxxx is a named party or any of the Assets of Xxxxxxxxx are
identified and subject.
3.10 Records. Xxxxxxxxx has records that accurately reflect its
transactions and transactions that affect the Assets in all Material respects.
3.11 Contracts.
a. All contracts, agreements, indentures and other instruments
to which Xxxxxxxxx is a party are attached to the Xxxxxxxxx Disclosure Letter.
Except for the agreements attached to the Xxxxxxxxx Disclosure Letter,
Xxxxxxxxx is not a party to or bound by (i) any agreement, contract or
commitment limiting the freedom of Xxxxxxxxx or any Affiliate of Xxxxxxxxx to
engage in any line of business, to own, operate, sell, transfer, pledge or
otherwise dispose of or encumber any Asset or to compete with any Person in any
geographical area; (ii) any agreement, contract or commitment relating to the
Assets; or (iii) any agreement, contract or commitment that will have a
Material adverse effect on the Assets.
b. Except as disclosed in the Xxxxxxxxx Disclosure Letter,
Xxxxxxxxx has not breached any provision of or is not in default (and no event
or circumstance exists that with notice or the lapse of time, or both, would
constitute a default) under the terms of any agreement attached to the
Xxxxxxxxx Disclosure Letter. All contracts, agreements, indentures and other
instruments attached to the Xxxxxxxxx Disclosure Letter are in full force and
effect. There are no pending or threatened disputes with respect to the
contracts, agreements, indentures or instruments attached to the Xxxxxxxxx
Disclosure Letter. Xxxxxxxxx is not obligated to pay any liquidated damages
under any of the agreements, indentures or other instruments attached to the
Xxxxxxxxx Disclosure Letter and Xxxxxxxxx is not aware of any facts or
circumstances that could reasonably be expected to result in an obligation of
Xxxxxxxxx to pay such liquidated damages.
3.12 Brokerage. No investment banker, broker or finder has acted
directly or indirectly for Xxxxxxxxx in connection with this Agreement or the
transactions contemplated hereby. No investment banker, broker, finder or
other Person is entitled to any brokerage or finder's fee or similar
commission in respect thereof based in any way on agreements, arrangements or
understandings made by or on behalf of Xxxxxxxxx. Xxxxxxxxx agrees to
indemnify, defend and hold Xxxxx harmless from and against any and all claims,
liabilities or
13
obligations with respect to all fees, commissions or expenses asserted by any
Person on the basis of any act, statement, agreement or commitment alleged to
have been made by Xxxxxxxxx with respect to any such fee, expense or
commission.
3.13 Execution and Delivery. Xxxxxxxxx has full power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement by Xxxxxxxxx and the performance
of its obligations hereunder have been duly authorized by all necessary
corporate action on its part, including unanimous approval by the Shareholders.
This Agreement has been duly executed and delivered by Xxxxxxxxx and
constitutes a legal, valid and binding obligation of Xxxxxxxxx, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by or subject to (a) any bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.14 Environmental Matters.
a. To the best of Xxxxxxxxx'x knowledge, Xxxxxxxxx has at all
times operated in compliance with all applicable limitations, restrictions,
conditions, standards, prohibitions, requirements and obligations of
Environmental Laws and related orders of any court or other Governmental
Entity.
b. To the best of Xxxxxxxxx'x knowledge, Xxxxxxxxx is not in
violation of or subject to (i) any existing, pending or threatened action,
suit, investigation, inquiry or proceeding by or before any court or other
Governmental Entity or (ii) any remedial obligations, in each case under any
applicable Environmental Law relating to the Assets or operations conducted
thereon by any Person at any time during which such Assets were owned, leased,
used or operated by or for the benefit of Xxxxxxxxx, or by any Person prior to
such time to the extent Xxxxxxxxx has knowledge of such matters.
c. To the best of Xxxxxxxxx'x knowledge, all notices, permits,
licenses or similar authorizations, if any, required to be obtained or filed by
Xxxxxxxxx under all applicable Environmental Laws in connection with its past
or present operation or use of any and all Assets or the conduct of its
business, including but not limited to past or present treatment, storage,
disposal or release of a hazardous substance or solid waste into the
environment, have been duly obtained or filed.
d. To the best of Xxxxxxxxx'x knowledge, all hazardous
substances and solid wastes generated at any and all of the Assets or by any
Person in connection with the ownership, lease, use or operation of the
Assets have, at any time during which such Assets were owned, leased, used or
operated by or for the benefit of Xxxxxxxxx or any Affiliate thereof, been
transported, stored, treated and disposed of by carriers or treatment, storage
and disposal facilities authorized or maintaining valid permits under all
applicable Environmental Laws.
14
e. To the best of Xxxxxxxxx'x knowledge, all hazardous
substances and solid wastes generated at any and all of the Assets or by any
prior owner or operator of the Assets were transported, stored, treated and
disposed of by carriers or treatment, storage and disposal facilities
authorized or maintaining valid permits under all applicable Environmental
Laws.
f. To the best of Xxxxxxxxx'x knowledge, no Person has, at any
time during which the Assets were owned, leased, used or operated by or for the
benefit of Xxxxxxxxx, disposed of or released any hazardous substance or solid
waste on or under the Assets, except in compliance with all applicable
Environmental Laws.
g. To the best of Xxxxxxxxx'x knowledge, no Person has
disposed of or released any hazardous substance or solid waste on, under or
around the Assets, except in compliance with all applicable Environmental Laws.
h. To the best of Xxxxxxxxx'x knowledge, no facts or
circumstances exist which could reasonably be expected to result in any
liability to any Person with respect to the current or past business and
operations of Xxxxxxxxx or the Assets in connection with any release,
transportation or disposal of any hazardous substance or solid waste or
action taken or omitted that was not in full compliance with or was in
violation of any applicable Environmental Law.
3.15 Employees.
x. Xxxxxxxxx has no employees.
b. Officers of Xxxxxxxxx shall not assert claims against Xxxxx
based on employment by Xxxxxxxxx for xxxxxxxxx, retirement benefits, health
benefits, deferred compensation, violations of any federal, state or local
laws or statutes, wages or other benefits or compensation. Officers of
Xxxxxxxxx not employed by Xxxxx shall not assert any claim against Xxxxx for
discriminatory hiring practices based on state or federal laws or statutes,
union contracts or for benefits based upon the Employee Retirement Income
Security Act of 1974, as Amended ("ERISA").
x. Xxxxxxxxx is not currently nor has it ever been a party to
any officer or employee pension or welfare plan to which ERISA applies or to
which Xxxxxxxxx was required to make contributions for the benefit of its
employees, officers or directors.
d. Neither Xxxxxxxxx nor any of its Affiliates is a party to,
or bound by, any collective bargaining agreement, contract or other agreement
or understanding with a labor union or labor union organization. There is no
unfair labor practice or labor arbitration proceeding pending or threatened
against Xxxxxxxxx or any of its Affiliates relating to their business which,
if determined adversely to Xxxxxxxxx or the Affiliate would have a Material
adverse effect. There are no organizational efforts with respect to the
formation of a collective bargaining unit presently being made or threatened
involving Xxxxxxxxx or any of its Affiliates.
15
3.16 Investigation. Xxxxxxxxx and its agents, counsel and
accountants have had reasonable access to representatives of Xxxxx to make such
investigations as they desired with respect to the business, operations and
affairs of Xxxxx in connection with the transactions contemplated hereby. In
determining whether to consummate the transactions contemplated hereby,
Xxxxxxxxx is relying solely on the terms, covenants, representations,
warranties and indemnities herein and on their own investigations into and
analysis of the business, operations and condition (financial or otherwise)
of Xxxxx and have not relied on Xxxxx, or its officers or directors, with
respect to the interpretation of data relating to the valuation of Xxxxxxxxx,
the income tax ramifications of this purchase and sale, and/or the ability of
Xxxxx to operate the Assets.
3.17 Operating Agreements. There are no agreements between Xxxxxxxxx
and any Person or entity regarding the ownership or operation of the Section 32
Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF XXXXX
Except as set forth in the Disclosure Letter from Xxxxx delivered to
Xxxxxxxxx at or prior to the execution hereof, which shall refer to the
relevant Sections of this Agreement (the "Xxxxx Disclosure Letter"), Xxxxx
hereby represents and warrants to and covenants with Xxxxxxxxx as follows:
4.1 Corporate Organization. Xxxxx 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 carry on its business
as it is now being conducted, and to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
4.2 Due Authorization, Execution and Delivery; Effect of Agreement.
The execution, delivery and performance by Xxxxx of this Agreement and the
consummation by Xxxxx of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Xxxxx. This
Agreement has been duly and validly executed and delivered by Xxxxx and
constitutes the legal, valid and binding obligation of Xxxxx, enforceable
against it in accordance with its terms, except to the extent that such
enforceability (a) may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights generally; and
(b) is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The
execution, delivery and performance by Xxxxx of this Agreement and the
consummation by Xxxxx of the transactions contemplated hereby (i) do not
require the consent, approval, clearance, waiver, order or authorization of
any Person, except as otherwise disclosed in the Xxxxx Disclosure Letter;
(ii) do not violate any provision of the Certificate of Incorporation or Bylaws
of Xxxxx; (iii) do not conflict with or violate any permit, concession, grant,
franchise, statute, law, rule or regulation of any Governmental Entity or any
order, judgment, award or decree of any court or other
16
Governmental Entity to which Xxxxx is subject; and (iv) do not conflict with,
or result in any breach of, or default or loss of any right under (or an event
or circumstance that, with notice or the lapse of time, or both, would result
in a default), or the creation of an Encumbrance pursuant to, or cause or
permit the acceleration prior to maturity of any amounts owing under, any
indenture, mortgage, deed of trust, lease, or other agreement to which Xxxxx
is a party, in each case, which failure, violation, conflict or breach would,
in the aggregate, materially hinder or impair the consummation of the
transactions contemplated by this Agreement.
4.3 Consents. Except as otherwise disclosed in the Xxxxx Disclosure
Letter, no consent, approval or authorization of, or exemption by, or filing
with, any Governmental Entity or any Person is required in connection with
the execution, delivery or performance by Xxxxx of this Agreement or the
taking of any other action contemplated hereby.
4.4 Litigation. There is no legal, judicial, administrative or
governmental arbitration or other action or proceeding or governmental
investigation pending against Xxxxx, or threatened against Xxxxx, which seeks
to enjoin or obtain damages in respect of the consummation of the transactions
contemplated hereby.
4.5 Brokerage. No investment banker, broker, finder or other Person
is entitled to any brokerage or finder's fee or similar commission in respect
of this Agreement or the transactions contemplated hereby based in any way on
agreements, arrangements or understandings made by or on behalf of Xxxxx.
Xxxxx agrees to indemnify and hold Xxxxxxxxx and the Partners harmless from and
against any and all claims, liabilities or obligations with respect to all
fees, commissions or expenses asserted by any Person on the basis of any act,
statement, agreement or commitment alleged to have been made by Xxxxx with
respect to any such fee, commission or expense.
4.6 Approvals. No approval of the stockholders of Xxxxx is
necessary or required under the Delaware General Corporation Law, as currently
in effect, or Xxxxx'x Certificate of Incorporation or Bylaws for the
consummation of the transactions contemplated by this Agreement.
ARTICLE V
COVENANTS OF XXXXXXXXX
From and after the date of this Agreement until the Closing, except
as expressly authorized by this Agreement or expressly consented to in writing
by Xxxxx, Xxxxxxxxx covenants and agrees with Xxxxx as follows:
5.1 Access to Xxxxxxxxx. Xxxxxxxxx shall afford to Xxxxx and to the
employees, agents, lenders, investors and authorized representatives of Xxxxx
and to their respective counsel and accountants such reasonable access to the
Assets, officers, offices, equipment, files, agreements, documents, and books
and records of Xxxxxxxxx (including, without
17
limitation, engineering data and information, computer programs, tapes and
other records), and the opportunity to make notes, abstracts and copies
therefrom, as may be requested by Xxxxx in order that Xxxxx may have full
opportunity to make such reasonable investigations as it shall desire with
respect to the business, operations, Assets and affairs of Xxxxxxxxx in
connection with the transactions contemplated hereby and Xxxxxxxxx shall
furnish Xxxxx with such additional financial and operating data and other
information as to the business, operations and Assets of Xxxxxxxxx as Xxxxx
shall, from time to time, reasonably request for such purpose. Xxxxx hereby
releases Xxxxxxxxx from all liability arising out of the entry by Xxxxx or
its employees, agents, lenders, investors or authorized representatives onto
the business premises of Xxxxxxxxx for purposes of conducting the investigation
contemplated by this Section 5.1. Xxxxx hereby agrees to indemnify, defend
and hold harmless Xxxxxxxxx against all liability, demands, claims, costs,
losses, damages, recoveries, settlements and expenses incurred by Xxxxxxxxx
arising from or related to the conduct by Xxxxx or its employees, agents,
lenders, investors or authorized representatives of the investigation.
5.2 Governmental Approvals; Consents.
x. Xxxxxxxxx shall use its best efforts, and shall cooperate
with Xxxxx, to obtain all permits, approvals and consents, and to make all
filings, necessary or required to be obtained or made, and to begin and cause
all waiting periods required to lapse, for Xxxxx to have full use and
enjoyment of the Assets subsequent to the purchase and sale and for the
consummation by Xxxxxxxxx of the transactions contemplated by this Agreement
under any applicable federal law or the applicable laws of any state having
jurisdiction over the transactions contemplated hereby (all such permits,
approvals, filings and consents and the lapse of all such waiting periods
being referred to as the "Requisite Regulatory Approvals").
x. Xxxxxxxxx shall use its best efforts to obtain all
consents, approvals, clearances, waivers, orders or authorizations of any
Person necessary to be obtained by Xxxxxxxxx for Xxxxx to have full use and
enjoyment of the Assets subsequent to the purchase and sale and for the
consummation of the transactions by Xxxxxxxxx contemplated by this Agreement.
5.3 Litigation and Claims. Xxxxxxxxx shall promptly inform Xxxxx in
writing of any litigation, or of any claim or controversy or contingent
liability of which Xxxxxxxxx becomes aware that might reasonably be expected
to become the subject of litigation, against Xxxxxxxxx or affecting any of
the Assets.
5.4 Notice of Changes. Xxxxxxxxx shall promptly inform Xxxxx in
writing if Xxxxxxxxx becomes aware of any change that shall have occurred or
that shall have been threatened (or any development that shall have occurred
or that shall have been threatened involving a prospective change) in the
financial condition, results of operations, business of the Assets or of
Xxxxxxxxx that is or with the exercise of reasonable business judgment would be
expected to have an adverse effect on the Assets. Xxxxxxxxx shall promptly
inform Xxxxx in writing if any representation or warranty made by Xxxxxxxxx in
this Agreement shall cease to be accurate or upon the occurrence of any breach
of any covenant or other agreement required by this Agreement to be performed
or complied with by Xxxxxxxxx.
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5.5 Conduct of Business Operations. Xxxxxxxxx shall not, without
the prior written consent of Xxxxx:
a. Other than in the ordinary course of business, sell, lease
or otherwise dispose of any Assets or any interests therein, or enter into, or
consent to the entering into of, any agreement granting to any third Person
a right to purchase, lease or otherwise acquire any Assets or interests
therein, except as otherwise provided for in this Agreement;
b. Enter into any agreement or incur any obligation, the terms
of which would be violated by the consummation of the transactions contemplated
by this Agreement;
c. (i) Enter into any new line of business with respect to the
Assets; (ii) change its investment, liability management and other material
policies in any respect; (iii) incur or commit to any capital expenditures or
financing; (iv) waive any right under or cancel any contract, debt or claim
listed in any exhibits hereto or the Xxxxxxxxx Disclosure Letter, which waiver
or cancellation would have an adverse effect on the Assets;
d. Enter into any contract, commitment or arrangement to
amend, modify, supplement or otherwise alter the terms of any existing
contract, agreement or instrument attached to the Xxxxxxxxx Disclosure Letter
with any Person;
e. Maintain its books of account other than in the usual,
regular and ordinary manner in accordance with good business practices or make
any change in any of its accounting methods or practices; or
f. Take any action that would or might reasonably be expected
to result in any of the conditions to Closing set forth in Article VII hereof
not being satisfied.
g. From the Effective Date to the Closing, fail to use its
best efforts to maintain the daily production over any calendar week during the
period below the average historical daily production from the Section 32
Property.
5.6 Maintain Assets and Operations. During the period from the date
hereof through the Closing, Xxxxxxxxx shall (a) carry on its business in the
usual, regular and ordinary course in a good and diligent manner consistent
with sound business practices and in compliance with all applicable laws, rules
and regulations; (b) not introduce any new method of management or operation;
(c) preserve in full force and effect all leases, operating agreements,
easements, rights of way, permits, licenses, contracts and other agreements
which relate to the Assets (other than those expiring by their terms); (d) use
its best efforts to perform or cause to be performed all of its obligations in
or under any of such leases, agreements and contracts to be transferred to
Xxxxx hereunder; (e) use its best efforts to safeguard and maintain secure all
reports and other confidential data in the possession of Xxxxxxxxx relating to
the Assets; and (f) use its best efforts to operate its business and activities
in the same manner as they have been carried out and to
19
maintain the same level of expenditure as have previously been incurred in
connection with such business and activities.
5.7 Exclusive Dealing. Xxxxxxxxx shall not directly or indirectly,
through any representative or otherwise, solicit or entertain offers from,
negotiate with or in any manner encourage, discuss, accept or consider any
proposal of any Person relating to the acquisition of the Assets or business,
in whole or in part, of Xxxxxxxxx, whether through direct purchase,
consolidation or other business combination (other than sales of inventory or
in the ordinary course of business) so long as this Agreement has not been
terminated. Xxxxxxxxx recognizes that Xxxxx has and continues to incur
substantial time and expense in evaluating this transaction. Xxxxxxxxx
acknowledges that Xxxxx, in reliance on this Section 5.7, will continue to
incur additional time, effort and expense. Xxxxxxxxx has agreed to this
provision due to the unique terms specified in the AIP and contemplated in this
transaction.
5.8 Termination Fee. In the event that Xxxxxxxxx breaches Section
5.7 hereof and within twelve (12) months after such breach or termination,
Xxxxxxxxx closes a transaction with an unrelated third party relating to the
acquisition of a Material portion of the Assets or the business of Xxxxxxxxx,
in whole or part, whether through direct purchase, merger, consolidation or
other business combination (other than sales of inventory or immaterial
portions of Xxxxxxxxx'x Assets in the ordinary course), then, immediately upon
such closing, Xxxxxxxxx shall pay to Xxxxx the sum of One Hundred Thousand
Dollars ($100,000). Such payment shall constitute liquidated damages and, in
the absence of fraud or bad faith, shall be in lieu of any other penalty or
remedy Xxxxx might otherwise seek, the parties having determined that the
20
actual damages resulting from the events for which such liquidated damages are
to be awarded would be extremely difficult and uncertain to calculate and that
liquidated damages above represent a good faith estimate of such actual
damages.
___________ __________
Xxxxxxxxx initials Xxxxx initials
___________ ___________ ___________ __________
___________ ___________ ___________ __________
___________ ___________ ___________ __________
Shareholders' initials
5.9 Taxes. Xxxxxxxxx shall pay any documentary transfer tax due on
the purchase and sale of the Assets.
ARTICLE VI
COVENANTS OF XXXXX
Xxxxx hereby covenants and agrees with Xxxxxxxxx as follows:
6.1 Cooperation. Subject to the terms and conditions of this
Agreement, Xxxxx shall cooperate with Xxxxxxxxx to use its best efforts to
secure all necessary consents, approvals, authorizations, exemptions and
waivers from all Persons and Governmental Entities as shall be required to be
obtained by Xxxxx in order to enable Xxxxx to consummate the transactions
contemplated hereby.
6.2 Governmental Approvals. Xxxxx shall use its best efforts, and
shall cooperate with Xxxxxxxxx, to obtain all Requisite Regulatory Approvals.
6.3 Disclosure Responsibilities. Xxxxx, as a reporting company
under Section 12 of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and listed company under the New York Stock Exchange (the "NYSE"), is
required to comply with certain disclosure requirements regarding its business
activities, including, but not limited to, the issuance of press releases and
the preparation and filing of periodic reports with the Securities and
Exchange Commission. In order to comply with the disclosure requirements of
the Exchange Act and NYSE, as well as the timing of such disclosures, all
statements to the public, including press releases, shall be at the sole
discretion of Xxxxx.
21
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF XXXXX
The obligations of Xxxxx to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction (or waiver by Xxxxx) on
or prior to the Closing of all of the following conditions:
7.1 Accuracy of Representations and Warranties. The representations
and warranties of Xxxxxxxxx set forth in this Agreement shall be true and
correct in all respects as of the date when made and at and as of the Closing.
7.2 Performance of Covenants and Agreements. Xxxxxxxxx shall have
duly performed and complied in all respects with the covenants, agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing. None of the events or conditions entitling Xxxxx
to terminate this Agreement under Article IX hereof shall have occurred and
be continuing.
7.3 Consents. Any consent required for the consummation of this
purchase and sale under any agreement, contract, license or other instrument
described in any exhibit hereto or referred to herein, or for the continued
enjoyment by Xxxxx of any benefits of such agreement, contract, license or
other instrument after the Closing, which consent Xxxxxxxxx is specifically
obligated to obtain pursuant to this Agreement, shall have been obtained and
be effective.
7.4 Governmental Approvals. All Requisite Regulatory Approvals
shall have been obtained, made or lapsed and shall be in full force and effect.
7.5 Approval of Counsel. The form and substance of all legal
matters contemplated hereby and all papers delivered hereunder shall be
reasonably acceptable to Nordman, Cormany, Hair & Xxxxxxx, counsel to Xxxxx.
7.6 Officers' Certificate. Xxxxx shall have received a certificate
of Xxxxxxxxx, substantially in the form of Exhibit 8 attached hereto and made a
part hereof, satisfactory in form and substance to Xxxxx, executed on behalf
of Xxxxxxxxx by its President and Secretary, as to compliance with the matters
set forth in Sections 7.1, 7.2, 7.3 and 7.4 of this Agreement.
7.7 Resolutions. Xxxxx shall have received certified copies of
Resolutions of the Board of Directors of Xxxxxxxxx and the written consent of
the Shareholders owning one hundred percent (100%) of the outstanding shares
of common stock of Xxxxxxxxx approving this Agreement, and the transactions
contemplated hereby.
7.8 Opinion of Counsel. Xxxxx shall have received the opinion of
Xxxxx Xxxxx, counsel to Xxxxxxxxx and the Shareholders, in form and content
satisfactory to Xxxxx, substantially in the form of Exhibit 9 attached
hereto and made a part hereof.
22
7.9 Closing of Agreements. The Closing shall not occur unless the
Closings contemplated by the Partnership Purchase Agreement and the TEC
Purchase Agreement have occurred or will occur concurrently with the Closing.
7.10 Condition of Section 32 Property. Xxxxx shall have approved
title to and the condition of the Section 32 Property as follows:
a. A current CLTA Preliminary Title Report prepared by First
American Title Company covering the Section 32 Property, accompanied by legible
copies of all documents referred to as exceptions in the report to the extent
reasonably available through Xxxxxxxxx'x best efforts and a map plotting all
easements (the "PTR"), has been delivered to Xxxxx by Xxxxxxxxx.
b. If Xxxxx elects to obtain an ALTA Policy, a survey of the
Section 32 Property shall have been prepared, at Xxxxx'x expense, by a licensed
surveyor or registered civil engineer, in sufficient detail to provide for the
policy of title insurance to be purchased by Xxxxx, certified to Xxxxx in a
form satisfactory to Xxxxx, without boundary, encroachment or survey exceptions
and which shows the location of all easements and improvements. It shall
be Xxxxx'x sole responsibility to obtain such survey by the Title Approval
Date defined below. Xxxxx'x failure to do so will be deemed Xxxxx'x waiver of
this condition. If Xxxxx does not elect to obtain an ALTA Policy, then
Xxxxxxxxx shall provide Xxxxx with a CLTA Policy at Xxxxxxxxx'x expense.
c. Title shall be free of Encumbrances not approved by Xxxxx.
On or before November 8, 1996 (the "Title Approval Date"), Xxxxx shall advise
Xxxxxxxxx in writing of what exceptions to coverage, if any, are unacceptable
to Xxxxx (the "Title Disapproval Notice"). Notwithstanding any other provision
of this Section 7.10, Xxxxx hereby objects to all monetary Encumbrances, which
monetary Encumbrances (if any) Xxxxxxxxx shall cause to be eliminated at the
Closing except for non-delinquent real property taxes and assessments, which
shall be one of the exceptions to coverage. Xxxxxxxxx shall have ten (10)
business days after receipt of a Title Disapproval Notice to give Xxxxx
notice either: (i) that Xxxxxxxxx will remove, on or before the Closing, any
disapproved exceptions to coverage and provide Xxxxx with evidence satisfactory
to Xxxxx of such removal; or (ii) that Xxxxxxxxx elects not to cause such
exceptions to coverage to be removed, in which case Xxxxx shall have five (5)
business days thereafter to notify Xxxxxxxxx in writing of Xxxxx'x election
(a) to waive any objectionable exceptions and to proceed with the purchase of
and to take the Section 32 Property subject to such exceptions, but otherwise
pursuant to the terms of this Agreement, or (b) to terminate this Agreement.
If Xxxxx shall fail to give Xxxxxxxxx notice of such election within said five
(5) business days, Xxxxx shall be deemed to have elected to waive its objection
to the coverage and to proceed with this purchase. In the event that during
escrow any amended or supplemented PTR is issued disclosing new exceptions to
coverage, Xxxxx shall again have the right to give a Title Disapproval Notice
as to such new exception, in which case all the foregoing rights of the parties
following the giving of such a notice shall again apply as stated above.
23
x. Xxxxx shall not have given written notice of disapproval of
matters related to the Section 32 Property. Xxxxx'x failure to give written
notice of disapproval on or before November 8, 1996 (the "Property Approval
Date") of all aspects and matters related to the Section 32 Property, including
size, shape, configuration, access, easements (express, implied and by
prescription), geologic/subsidence and soil conditions, hydrologic conditions,
water supply quantity and quality, buildings, tanks, pipelines, oil and gas
xxxxx, oils and gas surface equipment, and the condition of all other fixed
equipment shall be deemed to be approved. To facilitate Xxxxx'x review,
Xxxxxxxxx shall deliver to Xxxxx within fifteen (15) business days after the
date of this Agreement, (i) any environmental reports prepared by or for
Xxxxxxxxx covering all or any portion of the Section 32 Property, without
representation or warranty as to their accuracy or validity; (ii) copies of
any service contracts now in effect, all of which are cancelable at any time,
or by the giving of not more than thirty (30) days' notice; and (iii) any well
logs and reports of water usage made to the Regional Water Quality Control
Board, the Division of Oil, Gas and Geothermal Resources and other agencies,
as applicable.
x. Xxxxx shall be satisfied that there are no Hazardous
Materials, as that term is defined by all or any applicable laws, on the
Section 32 Property or in the groundwater thereunder and Xxxxx'x acceptance and
approval of an Environmental Audit and Assessment ("Phase I Report") as to the
Section 32 Property performed at Xxxxx'x direction and sole cost and expense.
Xxxxx'x failure to give notice of disapproval of the Phase I Report obtained
by Xxxxx, if any, on or before the Property Approval Date shall be deemed as
Xxxxx'x approval thereof and acceptance of the Section 32 Property in its
present condition. In the event such Phase I Report or any Phase II Report
involving soil and/or groundwater tests, approved in advance by Xxxxxxxxx,
discloses that the Section 32 Property or groundwater thereunder is
contaminated with Hazardous Materials in quantities requiring remediation or
removal under existing law, Xxxxx shall have the right to terminate this
Agreement. Except as provided in the succeeding sentence, Xxxxx agrees that
the Phase I Report and any other report, tests, and information and conclusions
stated therein shall be kept confidential and that any reporting requirements
to any governmental agency or any other third party arising therefrom shall be
the sole responsibility of Xxxxxxxxx. Notwithstanding the foregoing, in the
event that any then applicable law, statute or ordinance requires Xxxxx to
report or disclose the Report or Report findings to a governmental agency, then
and only then shall Xxxxx disclose the Report findings. In no event shall
Xxxxx be entitled to conduct any soil borings or groundwater tests without
Xxxxxxxxx'x prior written approval, which may be conditioned or denied in
Xxxxxxxxx'x sole discretion.
x. Xxxxx shall have received an affidavit, certification or
notice required by Section 1445 of the Code and the Regulations pursuant
thereto. In addition, Xxxxxxxxx shall have provided Xxxxx with the
certification required to show that withholding is not required pursuant to
California Revenue and Taxation Code Section 18662(e).
7.11 Good Standing Certificates. Xxxxxxxxx shall have delivered
valid Good Standing Certificates from the Secretary of State of California and
the California Franchise Tax Board showing Xxxxxxxxx in good standing.
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ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF XXXXXXXXX
The obligations of Xxxxxxxxx to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction (or waiver
by Xxxxxxxxx) on or prior to the Closing of all of the following conditions:
8.1 Accuracy of Representations and Warranties. The representations
and warranties of Xxxxx set forth in this Agreement shall be true and correct
in all material respects as of the date when made and at and as of the Closing.
8.2 Performance of Covenants and Agreements. Xxxxx shall have duly
performed and complied in all respects with the covenants, agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing. None of the events or conditions entitling
Xxxxxxxxx to terminate this Agreement under Article IX hereof shall have
occurred and be continuing.
8.3 Resolutions. Xxxxxxxxx shall have received certified copies of
resolutions of the Board of Directors of Xxxxx approving this Agreement and the
transactions contemplated hereby.
8.4 Approval of Counsel. The form and substance of all legal
matters contemplated hereby and all papers delivered hereunder shall be
reasonably acceptable to Xxxxx Xxxxx, counsel to Xxxxxxxxx and the
Shareholders.
8.5 Governmental Approvals. All Requisite Regulatory Approvals
shall have been obtained, made or lapsed and shall be in full force and effect.
8.6 Officers' Certificate. Xxxxxxxxx shall have received a
certificate of Xxxxx, substantially in the form of Exhibit 10 attached hereto
and made a part hereof, satisfactory in form and substance to Xxxxxxxxx,
executed on behalf of Xxxxx by the President and Secretary of Xxxxx, as to
compliance with the matters set forth in Sections 8.1, 8.2, 8.3 and 8.5 of
this Agreement.
8.7 Opinion of Counsel. Xxxxxxxxx shall have received the opinion
of Nordman, Cormany, Hair & Xxxxxxx, counsel to Xxxxx, in form and content
reasonably satisfactory to Xxxxxxxxx, substantially in the form of Exhibit 11
attached hereto and made a part hereof.
8.8 Closing of Agreements. The Closing shall not occur unless the
Closings contemplated by the Partnership Purchase Agreement and the TEC
Purchase Agreement have occurred or will occur concurrently with the Closing.
25
ARTICLE IX
TERMINATION PRIOR TO CLOSING
9.1 Termination. This Agreement may be terminated at any time prior
to the Closing:
a. By the mutual written consent of Xxxxx and Xxxxxxxxx;
b. Subject to the right of either party to extend the Closing
as provided in Section 2.7 hereof, upon written notice by either party to the
other party if Closing has not occurred forty-five (45) days after the
execution of this Agreement;
c. By Xxxxx in writing if Xxxxxxxxx or the Shareholders shall
be in Default;
d. By Xxxxxxxxx in writing if Xxxxx shall be in Default;
e. By Xxxxx if, after the date of this Agreement, there shall
have occurred a Material adverse change (or any development or condition
involving a prospective Material adverse change) in the business, financial
condition or results of operations of Xxxxxxxxx; or
f. By Xxxxx if the transaction is not approved by all the
Shareholders.
9.2 Effect on Obligations. Termination of this Agreement pursuant
to this Article shall terminate all obligations of the parties hereunder,
except for the obligation under Sections 3.12 and 4.5; provided, however, that
termination pursuant to paragraphs 9.1c or d hereof shall not relieve any
defaulting party from any liability to the other parties hereto.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Xxxxx. Xxxxx agrees to indemnify, defend and
hold Xxxxxxxxx, and agents of Xxxxxxxxx, harmless from and against any and all
loss, liability, damage, costs and expenses (including interest, penalties,
settlements, fines, costs and expenses incurred in connection with
investigating and defending any claims or causes of action, and reasonable
attorneys' fees) that Xxxxxxxxx and its agents may incur or become subject to
arising out of or due to any inaccuracy of any representation or the breach of
any warranty, covenant, undertaking or other agreement of Xxxxx contained in
this Agreement.
10.2 Indemnification by Xxxxxxxxx and the Shareholders. Xxxxxxxxx
and the Shareholders, jointly and severally, agree to indemnify, defend and
hold Xxxxx, and the officers,
26
directors, employees and agents of Xxxxx (collectively, the officers,
directors, employees and agents being referred to in each case as its
"Related Parties") harmless from and against any and all lawsuits, liability,
damage, costs and expenses (including interest, penalties, settlements, fines,
costs and expenses incurred in connection with investigating and defending
any claims or causes of action, and reasonable attorneys' fees) that Xxxxx and
its Related Parties may incur or become subject to arising out of or due to any
inaccuracy of any representation or the breach of any warranty, covenant,
undertaking or other agreement of Xxxxxxxxx or the Shareholders contained in
this Agreement. Xxxxxxxxx and the Shareholders also jointly and severally
agree to indemnify, defend and hold Xxxxx, and the Related Parties, harmless
from any and all lawsuits, liability, damage, cost and expenses (including
interest, penalties, settlements, fines, costs and expenses incurred in
connection with investigating and defending any claims or causes of action and
reasonable attorneys' fees) that Xxxxx and its Related Parties may incur or
become subject to arising out of or due to the actions of Xxxxx Chemical or the
Xxxxx Litigation or attributable to environmental conditions created directly
or indirectly by or as a result of the actions of Xxxxx Chemical and/or its
employees, officers and agents.
10.3 Survival. The several warranties, indemnities, representations,
covenants and agreements of the parties contained in this Agreement and in any
other instrument delivered pursuant hereto shall survive the Closing and shall
remain in full force and effect thereafter.
10.4 Notice and Opportunity to Defend.
a. If a party seeking indemnification (the "Indemnitee")
becomes aware of any matters that it believes may give rise to an
indemnifiable claim, or asserts any claim that it believes may be indemnifiable
pursuant to this Agreement, the Indemnitee shall give the party obligated to
provide indemnification (the "Indemnifying Party") prompt written notice of
such matter or claim, stating with particularity the nature of such matter or
the aforementioned claim and the amount thereof. Failure to provide such
notice shall not affect the right of the Indemnitee to indemnification
except to the extent such failure shall have resulted in liability to the
Indemnifying Party that could have been actually avoided had such notice been
provided within such required time period.
b. If the matter that the Indemnitee believes gives rise to an
indemnifiable claim does not involve a third party claim against an Indemnitee,
the Indemnifying Party shall have thirty (30) days from the date on which it
received notice of such claim pursuant to this Section to respond to such
notice. If such Indemnifying Party accepts responsibility or does not respond
within such thirty (30)-day period, the Indemnifying Party shall promptly pay
to the Indemnitee the full amount of such claim. If the Indemnifying Party
rejects any liability with respect to such claim, it shall give written notice
of such objection to the Indemnitee within such thirty (30)-day period and the
parties shall seek to resolve such claim by agreement. If the parties are
unable to resolve such claim by agreement within sixty (60) days following the
expiration of such thirty (30)-day period mentioned above, the parties shall be
entitled to pursue, without prejudice to any of their rights hereunder, such
remedies as may be available to the parties under applicable law.
27
c. In the event any action, suit, proceeding or investigation
is brought against the Indemnitee by a third party which the Indemnitee
believes may give rise to an indemnifiable claim, the Indemnitee shall give
the Indemnifying Party prompt written notice of the commencement of such
action, suit, proceeding or investigation as provided in paragraph a. of this
Section. Such Indemnifying Party shall have a period of thirty (30) days after
receipt of such notice within which to respond to such notice. If such
Indemnifying Party does not respond within such thirty (30)-day period or
rejects responsibility for such matter in whole or in part, the Indemnitee
shall be free to pursue, without prejudice to any of its rights hereunder,
such remedies as may be available to such party under applicable law. If such
Indemnifying Party accepts responsibility, such Indemnifying Party shall, as
between the Indemnitee and the Indemnifying Party, be obligated to compromise
or defend such matter, at its own expense. The Indemnitee shall employ counsel
of its choice and the Indemnifying Party shall reimburse the Indemnitee for
attorneys' fees and costs. The Indemnifying Party shall cooperate fully with
the Indemnitee and its counsel in the defense against any such asserted
liability. Any compromise of such asserted liability by the Indemnitee shall
require the prior written consent of the Indemnifying Party, which shall not
be unreasonably withheld. If, however, the Indemnitee refuses its consent to a
bona fide offer of settlement that involves solely the payment of cash that the
Indemnifying Party wishes to accept, the Indemnitee may continue to pursue such
matter, free of any participation by the Indemnifying Party, at the sole
expense of the Indemnitee. In such event, the obligation of the Indemnifying
Party to the Indemnitee shall be equal to the lesser of (i) the amount of the
offer of settlement that the Indemnitee refused to accept plus the costs and
expenses of the Indemnitee prior to the date the Indemnifying Party notified
the Indemnitee of the offer of settlement; and (ii) the actual out-of-pocket
amount the Indemnitee is obligated to pay as a result of such party's
continuing to pursue such matter. An Indemnifying Party shall be entitled to
recover from the Indemnitee any additional expenses incurred by such
Indemnifying Party as a result of the decision of the Indemnitee to pursue such
matter.
10.5 General. The indemnification provided in this Agreement shall
apply regardless of whether the matter subject to indemnification involved an
action taken or omitted that was negligent, grossly negligent or reckless by
the Person to be so indemnified. It is understood that such indemnification is
intended to be a means of compensating the parties for any damage or liability
directly or indirectly realized by them for matters subject to such
indemnification. To the extent the indemnification provided for herein may not
be provided to any Person under law, such indemnification shall be required to
be provided to any other Person for whom such indemnification may be
permissible as herein provided.
ARTICLE XI
MISCELLANEOUS
11.1 Entire Agreement. This Agreement and related documents executed
concurrently herewith constitute the sole understanding of the parties hereto
with respect to the matters provided for herein and supersedes the AIP and any
previous agreements and
28
understandings between the parties with respect to the subject matter hereof.
No amendment, modification or alteration of the terms or provisions of this
Agreement shall be binding unless the same shall be in writing and duly
executed by Xxxxx and Xxxxxxxxx.
11.2 Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon Xxxxx, Xxxxxxxxx and the Shareholders and their
respective successors and permitted assigns. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties
hereto.
11.3 Expenses. Except as provided in Sections 10.1 and 10.2 hereof,
each party hereto shall be responsible for the payment of the fees and expenses
of their respective counsel, accountants and other experts.
11.4 Taking of Necessary Action. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees, subject to applicable
laws, to use all reasonable best efforts promptly to take or cause to be
taken all action and to promptly do or cause to be done all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement. Without
limiting the foregoing and subject to the terms and conditions of this
Agreement, the parties shall use their reasonable best efforts to obtain and
make all consents, approvals, assurances and filings of or with third parties
and Governmental Entities necessary or advisable for the consummation of the
transactions contemplated by this Agreement. Each party shall cooperate with
the other in good faith to help the other satisfy its obligations hereunder.
11.5 Invalidity. Except for satisfaction of the conditions of
Article VII or VIII, and the provisions of Article X, 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 and legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. 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 transactions
contemplated hereby are fulfilled to the extent possible.
11.6 Attorneys' Fees. In the event of any claim, dispute or
controversy arising out of or relating to this Agreement, including an action
for declaratory relief, the prevailing party in such action or proceeding shall
be entitled to recover its taxable costs or arbitration fees, and reasonable
out-of-pocket expenses, including, but not limited to, telephone calls,
photocopies, expert witnesses, travel, computer expenses related to litigation,
and attorneys' fees to be fixed by the court or the arbitrator. Such recovery
shall include court costs, out-of-pocket expenses and attorneys' fees on
appeal, if any. The court shall determine who is the "prevailing party,"
whether or not the dispute or controversy proceeds to final judgment.
29
11.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
11.8 Headings. The headings of the articles, sections and paragraphs
of this Agreement and of the exhibits hereto are included for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction hereof or thereof.
11.9 Construction and References. Words used in this Agreement,
regardless of the number or gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other
gender, masculine, feminine or neuter, as the context shall require. Unless
otherwise specified, all references in this Agreement to articles, sections,
paragraphs or clauses are deemed references to the corresponding articles,
sections, paragraphs or clauses in this Agreement, and all references in this
Agreement to exhibits are references to the corresponding exhibits attached
to this Agreement.
11.10 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. No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other
provisions hereof (whether or not similar).
11.11 Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to any other party shall
be in writing and delivered personally, via telecopy (with receipt confirmed)
or by registered or certified mail, postage prepaid:
(a) if to Xxxxxxxxx, to:
Xxxxxxxxx Oil Company, Inc.
Attn: Xx. Xxxxxx X. Xxxxx, Xx.,
Treasurer and Chief Financial Officer
000 Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Confirmation No. (000) 000-0000
with copies to:
Xxxxx Xxxxx, Esq.
000 X Xxxxxx, Xx. 0
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Confirmation No. (000) 000-0000
29
(b) if to Xxxxx, to:
Xxxxx Petroleum Company
Attn: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
00000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxxx Xxx X
Xxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Confirmation No. (000) 000-0000
with copies to:
Nordman, Cormany, Hair & Compton
Attn: Xxxxx X. XxXxxx, Esq.
1000 Town Center Drive, Xxxxx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
Confirmation No. (000) 000-0000
or at such other address for a party as shall be specified by like notice. Any
notice that is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party (or its agents for notices hereunder). Any notice that
is addressed and mailed in the manner herein provided shall be conclusively
presumed to have been duly given to the party to which it is addressed at the
close of business, local time of the recipient, on the third day after the day
it is so placed in the mail. Any notice that is sent by telecopy shall be
deemed to have been duly given to the party to which it is addressed upon
telephonic confirmation of the same as provided herein. A copy of any notices
delivered by telecopy shall promptly be mailed in the manner herein provided
to the party to which such notice was given.
31
11.12 Public Announcements. Without the prior express consent of
Xxxxx, neither Xxxxxxxxx nor any Shareholder shall make any public statements,
including, without limitation, any press releases, with respect to this
Agreement and the transactions contemplated hereby.
11.13 Governing Law; Interpretation. This Agreement shall be
construed in accordance with and governed by the laws of the State of
California (regardless of the laws that might otherwise govern under applicable
California principles of conflict of laws) as to all matters, including, but
not limited to, matters of validity, construction, effect, performance and
remedies.
32
11.14 Jurisdiction. Any legal action or proceeding with respect
to this Agreement may be brought in the federal or state courts for the County
of Xxxx, in the State of California, and by execution and delivery of this
Agreement, Xxxxx and Xxxxxxxxx hereby accept the jurisdiction of the aforesaid
courts.
IN WITNESS WHEREOF, Xxxxx and Xxxxxxxxx have caused this Agreement to
be executed as of the date first above written.
XXXXX PETROLEUM COMPANY, XXXXXXXXX OIL COMPANY, INC.,
a Delaware corporation a California corporation
By: _____________________________ By: ________________________________
Xxxxx X. Xxxxxxx, President Xxxx X. Xxxxxxxxx, President
and Chief Executive Officer
By: _____________________________ By: ________________________________
Xxxxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxxx, Secretary
The undersigned constitute all of the Shareholders of Xxxxxxxxx and hereby
agree jointly and severally to be bound to the terms of this Agreement
including but not limited to the Agreement to Indemnify Xxxxx Petroleum Company
under the terms of this Article X of this Agreement. By signing this
Agreement, the Shareholders of Xxxxxxxxx hereby unanimously consent to the
transfer of the Assets from Xxxxxxxxx to Xxxxx.
XXXXX RESOURCE DEVELOPMENT
COMPANY, a California corporation
By: _____________________________ ______________________________________
Xxxxxx X. Xxxxx, Xx., President Xxxxxx X. Xxxxx, Xx., as Trustee
and Secretary of Trust "B" Under Will of
Xxxxxx X. Xxxxx, Xx., Deceased
___________________________________ ______________________________________
Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxx V
___________________________________ ______________________________________
Xxxx X. Xxxxx Xxxx X. Xxxxxx
33
___________________________________ ______________________________________
Xxxxxxxxx X. Xxxxx Xxxxx X. Xxxxxx
VERNIER RESOURCES CORPORATION, GENERAL WESTERN, INC.,
a Texas corporation a New Mexico corporation
By: _____________________________ By: ________________________________
Xxxxxxxxx X. Xxxxx, President Xxxxx X. Xxxxxx, President
and Secretary
By: ____________________________
Xxxxxx Xxxxxx Xxxxxxxx, Secretary
___________________________________ ______________________________________
Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxxx
___________________________________ ______________________________________
Xxxx Xxx Xxxxxxxxx, as Trustee of Xxxxxx X. Xxxxxxxxx, as Trustee of the
the Xxxx Xxx Xxxxxxxxx Family Trust, Xxxxxx X. Xxxxxxxxx Family Trust,
dated April 9, 1996 dated June 22, 1982
___________________________________ ____________________________________
Xxxx X. Xxxxxxxxx Xxx X. Xxxxxxxxx, as Trustee of the
Xxxxxx X. Xxxxxxxxx Family Trust,
dated June 22, 1982
Spousal Consents
The undersigned, spouses of the Shareholders named in this Agreement,
hereby consent to the terms and conditions of this Agreement and agree that
their community property, if any, included in the Assets, as defined herein,
is subject to this Agreement.
___________________________________ ____________________________________
___________________________________ ____________________________________
___________________________________ ____________________________________
1
EXHIBIT 1 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NORDMAN, CORMANY, HAIR & COMPTON
Attn: Xxxxx X. XxXxxx
1000 Town Center Drive, 0xx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
MAIL TAX STATEMENTS TO:
XXXXX PETROLEUM COMPANY
Attn: Xxxxx X. Xxxxxxx, President
00000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxxx Xxx X
Xxxx, Xxxxxxxxxx 00000
Order No. KER 1125444 A.P.N. 220-080-48-00-8
220-080-49-00-1
220-080-50-00-3
220-080-51-00-6
Escrow No. 1128321N
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
XXXXXXXXX OIL COMPANY, INC., a California corporation, hereby GRANT(S) to XXXXX
PETROLEUM COMPANY, a Delaware corporation, the following described real
property in the County of Xxxx, State of California:
2
PARCEL 1:
The North half of the Southwest quarter and the Southeast quarter of the
Southwest quarter of Section 32, Township 32 South, Range 24 East, M.D.B.M., in
the unincorporated area of the County of Xxxx, State of California, as per the
official plat thereof on file in the Office of the Surveyor General.
Excepting therefrom any vein or lode of quartz or other rock in place bearing
gold, silver, cinnabar, lead, tin, copper or other valuable deposits within
the land described above which may have been discovered or known prior to
November 1, 1901.
Excepting and reserving therefrom a royalty of four percent (4%) of all oil,
gas and other hydrocarbon substances produced from all zones lying below
4,500 feet below the surface of the above described parcel.
PARCEL 2:
The Southeast quarter of Section 32, Township 32 South, Range 24 East,
M.D.B.M., in the City of Xxxx, State of California, as per the official plat
thereof on file in the Office of the Surveyor General.
Excepting therefrom any vein or lode of quartz or other rock in place bearing
gold, silver, cinnabar, lead, tin, copper or other valuable deposits within
the land described above which may have been discovered or known prior to
June 10, 1910.
Excepting and reserving therefrom a royalty of four percent (4%) of all oil,
gas and other hydrocarbon substances produced from all zones lying below
4,500 feet below the surface of the above described parcel.
PARCEL 3:
The Northeast quarter of Section 32, Township 32 South, Range 24 East,
M.D.B.M., in the City of Xxxx, State of California, as per the official plat
thereof on file in the Office of the Surveyor General.
Excepting therefrom any vein or lode of quartz or other rock in place bearing
gold, silver, cinnabar, lead, tin, copper or other valuable deposits within
the land described above which may have been discovered or known prior to
October 26, 1910.
3
Excepting and reserving therefrom a royalty of four percent (4%) of all oil,
gas and other hydrocarbon substances produced from all zones lying below
4,500 feet below the surface of the above described parcel.
Dated: October 1, 1996 XXXXXXXXX OIL COMPANY, INC.,
a California corporation
_____________________________________
By: Xxxx X. Xxxxxxxxx, President
_____________________________________
By: Xxxxx X. Xxxxxx, Secretary
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On ___________________, before me, , Notary Public,
personally appeared XXXX X. XXXXXXXXX, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacities, and that by his signature on the
instruments the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
__________________________________
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On ___________________, before me, , Notary Public, personally
appeared XXXXX X. XXXXXX, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacities, and that by his signature on the instruments the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
4
STATEMENT OF TAX DUE UNDER PROVISIONS OF THE
DOCUMENTARY STAMP ACT
and
REQUEST THAT STAMPS NOT BE MADE A PART OF THE PERMANENT RECORD
TO: Xxxx County Recorder
THE TAX DUE PURSUANT TO THE PROVISIONS OF THE DOCUMENTARY STAMP ACT ON THE
DEED, TRANSFER, OR CONVEYANCE FROM: Xxxxxxxxx Oil Company, Inc.
[Name of Grantor(s) or Lessor(s)]
TO: Xxxxx Petroleum Company
[Name of Grantee(s) or Lessee(s)]
OF THE FOLLOWING BRIEFLY DESCRIBED REAL PROPERTY: X 00 X, X 00 X, Xxxxxxx 000
XXX 220-080-48-00-8; 220-080-49-00-1; 220-080-50-00-3; 220-080-51-00-6
Amounts to: $________________ Amounts to: $___________________
(X) Unincorporated Area (X) City of Xxxx
(X) Computed on full value (X) Computed on full value
( ) Computed on full value LESS liens ( ) Computed on full value
and encumbrances remaining LESS liens and
encumbrances remaining
Documentary Transfer Tax $____________
Computed on full value of property
conveyed
Xxxxxxxxx Oil Company, Inc.
By: _________________________________
Affix transfer Tax Stamp Here Stamp Reserved for Recorder's Coding Stamp
Date: __________________________ By: _____________________________________
Title: _____________________________________
AFTER THE PERMANENT RECORD IS MADE, THIS DOCUMENT WILL BE ATTACHED TO THE
CONVEYING DOCUMENT AND RETURNED TO THE PARTY ENTITLED THERETO. A COPY WILL BE
MADE AND PLACED ON FILE FOR AUDITING PURPOSES.
1
EXHIBIT 2 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
XXXX OF SALE
FOR VALUABLE CONSIDERATION, XXXXXXXXX OIL COMPANY, INC., a California
corporation ("Seller"), hereby grants, bargains, transfers and sells to XXXXX
PETROLEUM COMPANY, a Delaware corporation (hereinafter referred to as "Buyer"),
the personal property listed on Schedule A attached hereto and incorporated
herein by this reference as though set forth in full (the "Personal Property").
Seller represents and warrants to Buyer that it is the lawful owner of and
holds good and marketable title to the Personal Property, free and clear of
restrictions on or conditions to transfers or assignment, and free and clear of
all liens, pledges, charges or encumbrances of any nature whatsoever. Seller
and Seller's successors and assigns shall warrant and defend Seller's good and
marketable title to the Personal Property and Seller's right to sell the same
against the lawful claims and demands of all persons whomsoever.
Buyer acknowledges and agrees that it will purchase the Personal Property
AS IS and WHERE IS. Seller makes no representations or warranties regarding
the suitability of the Personal Property for any particular use.
DATED this 1st day of October, 1996.
XXXXX PETROLEUM COMPANY, XXXXXXXXX OIL COMPANY, INC., a
a Delaware corporation California corporation
By: _____________________________ By: ______________________________
Xxxxx X. Xxxxxxx, President Xxxx X. Xxxxxxxxx, President
and Chief Executive Officer
By: _____________________________ By: ______________________________
Xxxxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxxx, Secretary
"Buyer" "Seller"
2
SCHEDULE A
TO EXHIBIT 2
XXXX OF SALE ATTACHED TO AND MADE A PART OF THAT CERTAIN PURCHASE AND
SALE AGREEMENT DATED NOVEMBER 8, 1996, BY AND BETWEEN XXXXX PETROLEUM
COMPANY AND XXXXXXXXX OIL COMPANY, INC.
3
Xxxxxxxxx Oil Company, Inc.
Fixed Assets as of 10/1/96
Date in Service Division/Class Number Description
CLASS: 8O - LEASE/WELL GENERAL
01/01/93 00 80 93001 Test
01/01/93 00 80 93002 100 bbl. tank #31
01/01/93 00 80 93003 100 bbl. tank #52
01/01/93 00 80 93004 FWI/Simplex Pump
01/01/93 00 80 93005 100 bbl. Tank #231
01/01/93 00 80 93006 Gas Trap/Scrubbe
01/01/93 00 80 93007 1600 bbl. Prod TA
01/01/93 00 80 93008 1600 bbl. Prod TA
01/01/93 00 80 93009 LACT Unit
01/01/93 00 80 93010 Heater-Treater
01/01/93 00 80 93011 Shipping Pump
01/01/93 00 80 93012 500 bbl. wash tank
01/01/93 00 80 93013 Shipping Pump H1
01/01/93 00 80 93014 Pumping Unit (Nat
01/01/93 00 80 93015 Pumping Unit - Luf
01/01/93 00 80 93016 Pumping Unit - Bet
01/01/93 00 80 93017 Pumping Unit - Luf
01/01/93 00 80 93018 Pumping Unit - Luf
01/01/93 00 80 93019 Pumping Unit - Luf
01/01/93 00 80 93020 Pumping Unit - Nat
01/01/93 00 80 93021 Pumping Unit - Nat
01/01/93 00 80 93023 Valves/Fittings
1
EXHIBIT 3 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NORDMAN, CORMANY, HAIR & COMPTON
Attn: Xxxxx X. XxXxxx, Esq.
1000 Town Center Drive, 0xx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
MAIL TAX STATEMENTS TO:
Xxxxx Petroleum Company
Xxxxx X. Xxxxxxx, President
00000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxxx Xxx X
Xxxx, Xxxxxxxxxx 00000
A.P.N. 220-080-48-00-8
220-080-49-00-1
220-080-50-00-3
220-080-51-00-6
ASSIGNMENT OF LEASES, RIGHTS OF WAY, EASEMENTS AND CONTRACTS
THIS ASSIGNMENT OF LEASES, RIGHTS OF WAY, EASEMENTS AND CONTRACTS
("Assignment"), dated and effective as of 12:01 a.m. Pacific Standard Time, on
October 1, 1996 (the "Effective Date"), is from XXXXXXXXX OIL COMPANY, INC., a
California corporation ("Assignor"), whose address is 00000 Xxxxxxx 00
Xxxxxxxx, Xxxxxxxxxx 00000, X.X. Xxx 00, Xxxx, Xxxxxxxxxx 00000, to XXXXX
PETROLEUM COMPANY, a Delaware corporation ("Assignee"), whose address is 00000
Xxxxx Xxxxx Xxxx, Xxxx Xxxxxx Xxx X, Xxxx, Xxxxxxxxxx 00000.
1. Assignment. For the sum of Ten Dollars ($10) and other good and
valuable consideration, the receipt and sufficiency of which Assignor hereby
acknowledges, Assignor hereby transfers, grants, bargains, conveys and assigns
to Assignee, effective for all purposes as of the Effective Date, subject to
the terms and conditions set forth in that certain Purchase and Sale Agreement
dated November 8, 1996 by and between Xxxxx Petroleum Company and Xxxxxxxxx Oil
Company, Inc. ("Purchase and Sale Agreement"), and subject to all contracts,
agreements, encumbrances and other matters to which the following assets are
subject as of the Effective Date, all of Assignor's right, title and interest
in and to the interests and rights described in Schedule A to this Assignment
(hereinafter collectively called and referred to as the "Assets")
2
and all other rights, privileges, obligations, benefits and powers conferred
upon the owner or holder of the Assets.
2. Assumptions. Assignee hereby assumes and agrees to pay, perform and
discharge its obligations under the Assets, and the agreements, associated
contracts and other burdens pertaining thereto, which accrue and relate to, or
are based upon or arise out of, events occurring after the Effective Date, all
in accordance with the terms of the Purchase and Sale Agreement.
3. Further Assurances. The parties agree to take all such further
actions and execute, acknowledge and deliver all such further documents that
are necessary or useful in carrying out the purposes of this Assignment. So
long as authorized by applicable law so to do, Assignor hereby agrees to
execute, acknowledge and deliver to Assignee all such other additional
instruments, notices, division orders, transfer orders and other documents and
to do all such other and further acts and things as may be necessary to more
fully and effectively grant, convey, transfer and assign to Assignee the Assets
conveyed hereby or intended so to be.
4. Schedule. Reference is made to Schedule A attached hereto and made a
part hereof for all purposes. Reference in such Schedule A to instruments on
file or recorded in the public records are made for all purposes.
5. Headings. Headings are included in this Assignment for convenience
of reference and shall in no way define, limit, extend, or describe the scope
or intent of any provision of this Assignment.
6. Successors and Assigns. This Assignment shall bind and inure to the
benefit of Assignor and Assignee and their respective successors and assigns.
7. Multiple Counterparts. This Assignment may be executed in any number
of counterparts and each counterpart hereof shall be deemed to be an original
instrument but all of such counterparts shall constitute but one assignment.
8. Recordation. To facilitate recording or filing of this Assignment,
each counterpart filed with a federal or state agency or office may contain
only those portions of Schedule A that describe property under the jurisdiction
of that agency or office. Assignor and Assignee have each retained a
counterpart of this Assignment with a complete Schedule A. Another counterpart
of this Assignment with a complete Schedule A shall be recorded in the official
real property records of Xxxx County, California.
3
9. Governing Law. The provisions of this Assignment shall be governed
by and construed in accordance with the laws of the State of California,
excluding any conflicts of law, rule or principle that might refer same to the
laws of another jurisdiction.
XXXXXXXXX OIL COMPANY, INC. XXXXX PETROLEUM COMPANY,
a California corporation a Delaware corporation
By: ____________________________ By: ___________________________
Xxxx X. Xxxxxxxxx, President Xxxxx X. Xxxxxxx, President
and Chief Executive Officer
By: ____________________________ By: ___________________________
Xxxxx X. Xxxxxx, Secretary Xxxxxxx X. Xxxxx, Secretary
"Assignor" "Assignee"
4
STATE OF CALIFORNIA )
)
COUNTY OF _______________)
On ______________, 1996, before me, _______________, Notary Public, personally
appeared Xxxx X. Xxxxxxxxx, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
STATE OF CALIFORNIA )
)
COUNTY OF ______________ )
On ______________, 1996, before me, ________________, Notary Public, personally
appeared Xxxxx X. Xxxxxx, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
STATE OF CALIFORNIA )
)
COUNTY OF ______________ )
On ______________, 1996, before me, ________________, Notary Public, personally
appeared Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument the persons, or the entity upon behalf of which the persons
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
1
SCHEDULE A TO
EXHIBIT 3
ASSIGNMENT OF RIGHTS OF WAY, EASEMENTS AND CONTRACTS
ATTACHED TO AND MADE A PART OF THAT CERTAIN PURCHASE AND SALE AGREEMENT
DATED NOVEMBER 8, 1996
BY AND BETWEEN XXXXX PETROLEUM COMPANY AND
XXXXXXXXX OIL COMPANY, INC.
(Unrecorded Documents)
1. Paved Road Maintenance Letter from Texaco to San Xxxxxxx Valley Air
Pollution Control District dated 9-23-92.
2. Oil Sales Agreement between Texaco Trading & Transportation (purchase no.
16P85) and Xxxxxxxxx Oil Company dated 6-13-88.
3. Oil Sales Agreement between Xxxx (lease no. 20390) and Xxxxxxxxx Oil
Company dated 11-9-90 and Amended 2-2-96.
4. Oil Sales Agreement between Xxxx (lease no. 28572) and Xxxxxxxxx Oil
Company, 90 day contract.
5. Waste Water Disposal Agreement between Oxy U.S.A., Inc. and Xxxxxxxxx Oil
Company dated 6-1-90.
6. Water District Agreement No. 8 between West Xxxx Water District and
Xxxxxxxxx Oil Company dated 5-17-83.
7. Water District Agreement No. 9 between West Xxxx Water District and
Xxxxxxxxx Oil Company dated 1-13-87.
8. Easement and Right-of-Way Pipeline Agreement by and between Texaco Inc.,
as Grantor and Mobil Exploration and Production U.S. Inc., as Grantee dated
September 5, 1990. (CAMCL02221)
9. Private Road Easement and Right-of-Way Agreement by and between Texaco
Inc., as Grantor and Oxy U.S.A. Inc., as Grantee dated November 28, 1988.
(CAMCLO2225)
10. Private Road Easement and Right-of-Way by and between Texaco Inc., as
Grantor and Xxxxx Petroleum Company, as Grantee dated January 3, 1989.
(CAMCLO1009)
11. Private Road Easement and Right-of-Way by and between Texaco Inc., as
Grantor and Xxxxx Petroleum Company, as Grantee dated January 3, 1989.
(CAMCLO1010)
12. Roadway Easement by and between Texaco Inc., as Grantor and Chevron U.S.A.
Inc., as Grantee dated December 22, 1988. (CAMCLO2223)
13. Road Right-of-Way and Easement by and between Texaco Inc., as Grantor and
Xxxxx Xxxxx Ltd., as Grantee dated September 8, 1988.
14. Road Maintenance Agreement between Xxxxx Petroleum Company, as Grantor and
Exxon Corporation, as Grantee dated September 8, 1988. (CAMCL01110)
2
15. Roadway Agreement by and between Texaco, as Grantor and Monarch
Cogeneration, as Grantee dated April 13, 1987.
16. Pipeline Lease Agreement from Texaco Inc., as Lessor to Xxxxxxxxx Oil
Company, as Lessee dated June 16, 1993.
17. Road Right-of-Way for Cogeneration (from Hwy 33) between Oxy, as Grantor
and Xxxxxxxxx Oil Company, as Grantee dated October 15, 1984.
18. Pipeline Right-of-Way between The Texas Company (Texaco), as Grantor, and
Union Oil Company of California, as Grantee dated May 15, 1953. (CAMCL02229)
19. Pipeline License Agreement between Shell Western E&P Inc., as Licensor,
and Xxxxxxxxx Oil Company, as Licensee dated June 9, 1993.
20. Pipeline License Agreement between Mobil Exploration & Producing U.S.
Inc., as Licensor and Xxxxxxxxx Oil Company, as Licensee dated May 11, 1993.
(CAMCL02153)
21. Pipeline License Agreement between Shell Western E&P Inc., as Licensor
and Xxxxxxxxx Oil Company, as Licensee dated April 13, 1993.
22. Pipeline Easement between Oxy U.S.A. Inc., as Grantor and Xxxxxxxxx Oil
Company, as Grantee dated June 1, 1993.
23. Consent to Pipeline Easement (BDT) between Oxy U.S.A. Inc., First Party
and South Midway BDT Service Pipeline System and Xxxxx Petroleum Company, as
Operator dated July 23, 1992. (CAMCL02057)
24. Pipeline License Agreement (BDT) between Mobil Exploration & Producing
U.S. Inc., South Midway BDT Service Pipeline System and Xxxxx Petroleum
Company, as Operator dated February 1, 1992. (CAMCL02057)
25. Pipeline License Agreement (BDT) between Texaco Exploration and Production
Inc., and South Midway BDT Service Pipeline System, and Xxxxx Petroleum
Company, as Operator dated March 20, 1992. (CAMCL02058)
26. Pipeline License Agreement (BDT) between Xxxxxxx XxXxxxxx, as Grantor and
Xxxxx Petroleum Company, Xxxxx Xxxxx Limited, and Xxxxxxxxx Oil Company,
Grantee dated March 16, 1992. (CAMCL02060)
27. Consent to Pipeline Easement (BDT) between Oxy U.S.A. Inc., South Midway
BDT Service Pipeline System and Xxxxx Petroleum Company dated July 23, 1992
for Xxxxx Xxxxxx R-O-W dated March 11, 1992. (CAMCL01180)
28. Pipeline License Agreement (BDT) between Xxxxx X. Xxxxxx, as Grantor and
Xxxxx Petroleum Company, Xxxxx Xxxxx Limited, and Xxxxxxxxx Oil Company, as
Grantee dated March 11, 1992. (CAMCL01180)
29. Consent to Pipeline Easement (BDT) between Oxy U.S.A. Inc., First Party
and South Midway BDT Service Pipeline System, and Xxxxx Petroleum Company,
Operator dated July 23, 1992 for Masonic Homes of California R-O-W dated
March 13, 1992. (CAMCL02116)
30. Pipeline License Agreement (BDT) between Xxxxx X. Xxxxxx, as Grantor and
Xxxxx Petroleum Company, Xxxxx Xxxxx Limited, and Xxxxxxxxx Oil Company, as
Grantee dated March 13, 1992. (CAMCL02116)
3
31. Consent to Pipeline Easement (BDT) between Oxy U.S.A. Inc., First Party
and South Midway BDT Service Pipeline System, and Xxxxx Petroleum Company,
Operator dated July 23, 1992 for Xxxxx X. Xxxxxx R-O-W dated March 3, 1992.
(CAMCL02117)
32. Pipeline License Agreement (BDT) between Masonic Homes of California, as
Grantor and Xxxxx Petroleum Company, Xxxxx Xxxxx Limited, and Xxxxxxxxx Oil
Company, as Grantee dated March 3, 1992. (CAMCL02117)
33. Pipeline License Agreement (BDT) between Oxy U.S.A. Inc, as Grantor and
Xxxxx Petroleum Company, Xxxxx Xxxxx Limited, and Xxxxxxxxx Oil Company, as
Grantee dated May 20, 1991. (CAMCL02149)
34. Pipeline License Agreement (BDT) between Xxxxx X. Xxxxxxx, successor in
title to Xxxx X. Xxxxxxx, as Licensor and South Midway BDT Pipeline System,
as Licensee dated March 31, 1992. (CAMCL02056)
35. Pole Line Easement between Xxxxxx Resources, et al., as Grantor and
Pacific Gas and Electric Company, as Grantee dated September 15, 1984.
36. Surface Lease Agreement between Xxxxxxxxx Oil Company, as Lessor and Xxxxx
Petroleum Company, as Lessee, dated June 23, 1993. (CAMCL02151)
37. Agreement for a 6" steam line and 4" water line between Shell Western
E&P Inc., as Grantor and Xxxxxxxxx Oil Company, as Grantee dated May 14, 1990.
38. Letter regarding a right-of-way for a 3" water disposal line and a 6"
steam line, to Mobil Exploration & Producing Inc. from Xxxxxxxxx Oil Company
(Xxxxxxx Xxxx) dated April 12, 1990. (CAMCL01048)
39. Pipeline License Agreement between Mobil Exploration & Producing Inc., as
Grantor and Xxxxxxxxx Oil Company, as Grantee with Xxxxx Petroleum Company's
consent, dated May 29, 1990. (CAMCL01048)
40. Pipeline License Agreement between Xxxxxxxxx Oil Company, as Licensor and
Xxxxx Petroleum Company, as Licensee dated August 9, 1995. (CAMCL02187)
41. Pipeline License Agreement between Xxxxx Petroleum Company, as Grantor to
Xxxxxxxxx Oil Company, as Grantee dated June 23, 1993. (CAMCL02142)
42. Easement between Xxxxxxxxx Oil Company, as Licensor and Mobil Exploration
& Producing, Inc. as Licensee dated September 1, 1993.
43. Temporary Access Agreement between Xxxxxxxxx Oil Company, as Grantor and
Mobil Exploration & Producing, Inc., as Grantee dated June 27, 1991.
44. Phone Line Right-of-Way between Mobil Exploration & Production Inc., as
Grantor and Xxxxxxxxx Oil Company, as Grantee dated August 1993.
45. Agreement (BDT) between Solar Cogeneration, Southwest Contractors and
Xxxxxxxxx Oil, Dated February 1992.
46. License Agreement between Monarch Cogeneration 1986-1, as Licensor and
AWAM Petroleum Inc., and Xxxxxx X. Xxxxx, Xx., as Licensee and Southwest
Contractors, as Contractor, (unsigned draft only), dated February 19, 1993.
47. Lease Agreement between Texaco Trading & Transportation Inc., as Lessor
and Xxxxxxxxx Oil Company, as Lessee dated June 16, 1993.
4
48. Waste Water Pipeline R-O-W between Texaco Producing Inc., as Grantor and
Xxxxx Xxxxx Cogeneration, as Grantee, not dated or signed, status unknown.
(CAMCL02222)
49. Road R-O-W Agreement by and between Texaco, Inc., as Grantor and Xxxxx
Xxxxx Limited, as Grantee, dated December 12, 1988. (CAMCL02224)
50. Pipeline R-O-W Agreement by and between Texaco, Inc., as Grantor and Xxxxx
Holding Company, as Grantee dated May 24, 1982. (CAMCL01139)
51. Private Road by and between Texaco, Inc., as Grantor and Exxon
Corporation, as Grantee dated June 27, 1988. (CAMCL02228)
52. Pipeline R-O-W Agreement by and between Texaco, Inc., as Grantor and Xxxxx
Holding Company, as Grantee dated October 27, 1966. (CAMCL01076)
53. Pipeline Agreement by and between Texaco, Inc., as Grantor and Socony
Mobil Oil Company, as Grantee dated April 28, 1965. (CAMCL02226)
54. Pole Line R-O-W by and between The Texas Company, as Grantor and Standard
Oil Company of California, as Grantee dated May 11, 1955. (CAMCL02227)
55. Power and Pole Line Agreement by and between the Texas Company, as Grantor
and Pacific Gas and Electric Company, as Grantee dated August 8, 1944.
(CAMCL02230)
56. Pipeline Agreement by and between the Texas Company, as Grantor and
Standard Oil Company of California, as Grantee dated January 23, 1939.
(CAMCL02231)
57. Pipeline Agreement by and between The Texas Company, as Grantor and
Standard Oil Company of California, as Grantee dated November 23, 1937.
(CAMCL02232)
58. Pipeline Agreement by and between The Texas Company, as Grantor and
Standard Gasoline Company, as Grantee dated August 14, 1936. (CAMCL02233)
59. Water Pipeline Agreement by and between The Texas Company, as Grantor and
Western Water Company, as Grantee dated January 13, 1936. (CAMCL02234)
60. Easement and Right of Way in favor of Union Oil Company.
61. Easement and Right of Way in favor of Union Oil Company.
62. Easement and Right of Way in favor of Tidewater Oil Company.
63. Easement and Right of Way in favor of Xxxxx X. Company.
64. A Right of Way between Xxxxxx X. Xxxxx, Xx., et al and Security Pacific
Leasing Corporation dated August 24, 1994.
65. A Right of Way between Xxxxxxxxx Oil Company and Security Pacific Leasing
Corporation dated August 24, 1994.
66. An Easement between Xxxxxxxxx Oil Company and Security Pacific Leasing
Corporation dated August 26, 1994.
5
67. An Agreement governing the joint venture for the Kern River - Mojave
Pipeline Lateral among Mobil Oil Corporation, Xxxxx Petroleum Company, Xxxxx
Xxxxx Limited and Xxxxxxxxx Oil Company date December 2, 1991.
68. An Agreement governing the joint venture for the South Midway BDT Service
Pipeline System among, Xxxxx Petroleum Company, Xxxxx Xxxxx Limited and
Xxxxxxxxx Oil Company dated January 8, 1992.
69. An interruptible transportation agreement between Mojave Pipeline
Operating Company, as transporter and Xxxxxxxxx Oil Company, as shipper,
Dated March 1, 1995.
1
EXHIBIT 4 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NORDMAN, CORMANY, HAIR & COMPTON
Attn: Xxxxx X. XxXxxx, Esq.
1000 Town Center Drive, 0xx Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
MAIL TAX STATEMENTS TO:
Xxxxx Petroleum Company
Xxxxx X. Xxxxxxx, President
00000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxxx Xxx X
Xxxx, Xxxxxxxxxx 00000
A.P.N. 220-080-48-00-8
220-080-49-00-1
220-080-50-00-3
220-080-51-00-6
ASSIGNMENT OF LEASES, RIGHTS OF WAY, EASEMENTS AND CONTRACTS
THIS ASSIGNMENT OF LEASES, RIGHTS OF WAY, EASEMENTS AND CONTRACTS
("Assignment"), dated and effective as of 12:01 a.m. Pacific Standard Time, on
October 1, 1996 (the "Effective Date"), is from XXXXXXXXX OIL COMPANY, INC., a
California corporation ("Assignor"), whose address is 00000 Xxxxxxx 00,
Xxxxxxxx, Xxxxxxxxxx 00000, X.X. Xxx 00, Xxxx, Xxxxxxxxxx 00000, to XXXXX
PETROLEUM COMPANY, a Delaware corporation ("Assignee"), whose address is 00000
Xxxxx Xxxxx Xxxx, Xxxx Xxxxxx Xxx X, Xxxx, Xxxxxxxxxx 00000.
1. Assignment. For the sum of Ten Dollars ($10) and other good and
valuable consideration, the receipt and sufficiency of which Assignor hereby
acknowledges, Assignor hereby transfers, grants, bargains, conveys and assigns
to Assignee, effective for all purposes as of the Effective Date, subject to
the terms and conditions set forth in that certain Purchase and Sale Agreement
dated November 8, 1996, by and between Xxxxx Petroleum Company and Xxxxxxxxx
Oil Company, Inc. ("Purchase and Sale Agreement"), and subject to all
contracts, agreements, encumbrances and other matters to which the following
assets are subject as of the Effective Date, all of Assignor's right, title
and interest in and to the interests and rights described in Schedule A to this
Assignment (hereinafter collectively called and referred to as the "Assets")
and all other rights, privileges, obligations, benefits and powers conferred
upon the owner or holder of the Assets.
2
2. Assumptions. Assignee hereby assumes and agrees to pay, perform and
discharge its obligations under the Assets, and the agreements, associated
contracts and other burdens pertaining thereto, which accrue and relate to, or
are based upon or arise out of, events occurring after the Effective Date, all
in accordance with the terms of the Purchase and Sale Agreement.
3. Further Assurances. The parties agree to take all such further
actions and execute, acknowledge and deliver all such further documents that
are necessary or useful in carrying out the purposes of this Assignment. So
long as authorized by applicable law so to do, Assignor hereby agrees to
execute, acknowledge and deliver to Assignee all such other additional
instruments, notices, division orders, transfer orders and other documents and
to do all such other and further acts and things as may be necessary to more
fully and effectively grant, convey, transfer and assign to Assignee the
Assets conveyed hereby or intended so to be.
4. Schedule. Reference is made to Schedule A attached hereto and made a
part hereof for all purposes. Reference in such Schedule A to instruments on
file or recorded in the public records are made for all purposes.
5. Headings. Headings are included in this Assignment for convenience
of reference and shall in no way define, limit, extend, or describe the scope
or intent of any provision of this Assignment.
6. Successors and Assigns. This Assignment shall bind and inure to the
benefit of Assignor and Assignee and their respective successors and assigns.
7. Multiple Counterparts. This Assignment may be executed in any number
of counterparts and each counterpart hereof shall be deemed to be an original
instrument but all of such counterparts shall constitute but one assignment.
8. Recordation. To facilitate recording or filing of this Assignment,
each counterpart filed with a federal or state agency or office may contain
only those portions of Schedule A that describe property under the jurisdiction
of that agency or office. Assignor and Assignee have each retained a
counterpart of this Assignment with a complete Schedule A. Another counterpart
of this Assignment with a complete Schedule A shall be recorded in the official
real property records of Xxxx County, California.
3
9. Governing Law. The provisions of this Assignment shall be governed
by and construed in accordance with the laws of the State of California,
excluding any conflicts of law, rule or principle that might refer same to the
laws of another jurisdiction.
XXXXXXXXX OIL COMPANY, INC. XXXXX PETROLEUM COMPANY,
a California corporation a Delaware corporation
By: ____________________________ By: ___________________________
Xxxx X. Xxxxxxxxx, President Xxxxx X. Xxxxxxx, President
and Chief Executive Officer
By: ____________________________ By: ___________________________
Xxxxx X. Xxxxxx, Secretary Xxxxxxx X. Xxxxx, Secretary
"Assignor" "Assignee"
4
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On _______________, 1996, before me, _______________, Notary Public, personally
appeared Xxxx X. Xxxxxxxxx, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
STATE OF CALIFORNIA )
)
COUNTY OF _____________ )
On ________________, 1996, before me, ______________, Notary Public, personally
appeared Xxxxx X. Xxxxxx, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________
5
STATE OF CALIFORNIA )
)
COUNTY OF ______________ )
On _______________, 1996, before me, _______________, Notary Public, personally
appeared Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument the persons, or the entity upon behalf of which the persons
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
6
SCHEDULE A TO
EXHIBIT 4
ASSIGNMENT OF RIGHTS OF WAY, EASEMENTS AND CONTRACTS
ATTACHED TO AND MADE A PART OF THAT CERTAIN PURCHASE AND SALE AGREEMENT
DATED NOVEMBER 8, 1996
BY AND BETWEEN XXXXX PETROLEUM COMPANY AND
XXXXXXXXX OIL COMPANY, INC.
(Recorded Documents)
1. Road Agreement between Oxy U.S.A. Inc. and Xxxxxxxxx Oil Company, recorded
December 27, 1988 in Book 6194, Page 1339, Official Records.
2. Road Right of Way Agreement between Oxy U.S.A. Inc. and Monarch
Co-Generation 1986-1, a California limited Partnership, recorded December 27,
1988 in Book 6194, Page 1351, Official Records.
3. Grant of Easement between Masonic Homes of California, a corporation and
Xxxxxxxxx Oil Company, recorded March 6, 1985 in Book 5740, Page 170, Official
Records.
4. Agreement for the Sale and Delivery of Oil between Xxxxx Xxxxxx Oil and
Development Company and Standard Oil Company, recorded March 18, 1910 in Book
21, Page 139 of Agreements.
5. Memorandum of Operating Agreement between Xxxxxxxxx Oil Company and Xxxxxx
X. Xxxxxxxxx, et al. for the production of oil and gas, recorded August 18,
1992 in Book 6715, Page 661, Official Records.
7
STATEMENT OF TAX DUE UNDER PROVISIONS OF THE
DOCUMENTARY STAMP ACT
and
REQUEST THAT STAMPS NOT BE MADE A PART OF THE PERMANENT RECORD
TO: Xxxx County Recorder
THE TAX DUE PURSUANT TO THE PROVISIONS OF THE DOCUMENTARY STAMP ACT ON THE
DEED, TRANSFER, OR CONVEYANCE FROM: Xxxxxxxxx Oil Company
[Name of Grantor(s) or Lessor(s)]
TO: Xxxxx Petroleum Company
[Name of Grantee(s) or Lessee(s)]
OF THE FOLLOWING BRIEFLY DESCRIBED REAL PROPERTY: X 00 X, X 00 X, Xxxxxxx 00;
APN 220-080-48-00-8; 220-080-48-00-8; 220-080-49-00-1; 220-080-50-00-3
Amounts to: $________0_______ Amounts to: $__________0_______
(X) Unincorporated Area (X) City of ___________________
(X) Computed on full value (X) Computed on full value
( ) Computed on full value LESS liens ( ) Computed on full value LESS
and encumbrances remaining liens and encumbrances
remaining
Documentary Transfer Tax $_____0_______
Computed on full value of property
conveyed
Xxxxxxxxx Oil Company, Inc.
By: _________________________________
Affix transfer Tax Stamp Here Stamp Reserved for Recorder's Coding Stamp
Date: ________________________ By: ____________________________________
Title: _________________________________
AFTER THE PERMANENT RECORD IS MADE, THIS DOCUMENT WILL BE ATTACHED TO THE
CONVEYING DOCUMENT AND RETURNED TO THE PARTY ENTITLED THERETO. A COPY WILL BE
MADE AND PLACED ON FILE FOR AUDITING PURPOSES.
1
EXHIBIT 5 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
FORM 8594 ASSET ACQUISITION STATEMENT OMB No. 1545-1021
(Rev Jan 1996) UNDER SECTION 1060
Department of the Treasury Attachment
Internal Revenue Service Sequence No. 61
Attach to your Federal income tax return
Name as Shown on return Identification number as shown on return
Xxxxxxxxx Oil Company, Inc. 00-0000000
Check the box that identifies you Buyer (X) Seller
Part 1 General Information - to be completed by all filers.
1. Name of other party to the transaction
Xxxxx Petroleum Company
Other party's identification number
00-0000000
Address (number, street, and room or suite no.)
00000 Xxxxx Xxxxx Xxxx, X.X. Xxx X
Xxxx, Xxxxxxxxxx 00000
2. Date of Sale 3. Total sales price
October 1, 1996 $930,000
Part II Assets Transferred - to be completed by all filers of an original
statement
4. Assets Aggregate Fair Market Value Allocation of Sales price
(Actual Amount for Class I)
Class I $ $
Class II $ $
Class III $ $ 930,000
Class IV $ $
Total $ $ 930,000
5. Did the buyer and seller provide for an allocation of the sales price in
the sales contract or in another written document signed by both parties?
(X) Yes No
If Yes, are the aggregate fair market values listed for each of asset
Classes I, II, III and IV the amounts agreed upon in your sales contract
or in a separate written document?
(X) Yes No
6. In connection with the purchase of the group of assets, did the buyer also
purchase a license or a covenant not to complete, or enter into a lease
agreement, employment contract, management contract, or similar
arrangement with the seller (or managers, directors, owners, or employees
of the seller)?
Yes (X) No
If Yes, specify (a) the type of agreement, and (b) the maximum amount of
consideration (not including interest) paid or to be paid under the
agreement. See the instructions for line 6.
For Paperwork Reduction Act Notice, see instructions.
Cat. Xx. 00000X Xxxx 0000 (Xxx. 1-96)
2/19/96 Published by Tax Management Inc., a subsidiary of The Bureau of
National Affairs, Inc. 8594.I
2
Form 8594 (Rev. 1-96) Page 2
Part III Supplemental Statement - To be completed only if amending an
original statement or previously filed supplemental statement
because of an increase or decrease in consideration N/A
7. Assets Allocation of Sales Price Increase or Redetermined Allocation
as Previously Reported (Decrease) of Sales Price
Class I $ $ $
Class II $ $ $
Class III $ $ $
Class IV $ $ $
Totals $ $
8. Reason(s) for increase or decrease. Attach additional sheets if more
space is needed.
9. Tax year and tax return form number with which the original form 8594 and
any supplemental statements were filed.
1
FORM 8594 ASSET ACQUISITION STATEMENT OMB No. 1545-1021
(Rev Jan 1996) UNDER SECTION 1060
Department of the Treasury Attachment
Internal Revenue Service Sequence No. 61
Attach to your Federal income tax return
Name as Shown on return Identification number as shown on return
Xxxxx Petroleum Company 00-0000000
Check the box that identifies you (X) Buyer ( ) Seller
Part 1 General Information - to be completed by all filers.
1. Name of other party to the transaction
Xxxxxxxxx Oil Company, Inc.
Other party's identification number
00-0000000
Address (number, street, and room or suite no.)
X.X. Xxx 00
Xxxx, Xxxxxxxxxx 00000
2. Date of Sale 3. Total sales price
October 1, 1996 $930,000
Part II Assets Transferred - to be completed by all filers of an original
statement
4. Assets Aggregate Fair Market Value Allocation of Sales price
(Actual Amount for Class I)
Class I $ $
Class II $ $
Class III $ $ 930,000
Class IV $ $
Total $ $ 930,000
5. Did the buyer and seller provide for an allocation of the sales price in
the sales contract or in another written document signed by both parties?
(X) Yes No
If Yes, are the aggregate fair market values listed for each of asset
Classes I, II, III and IV the amounts agreed upon in your sales contract
or in a separate written document?
(X) Yes No
6. In connection with the purchase of the group of assets, did the buyer also
purchase a license or a covenant not to complete, or enter into a lease
agreement, employment contract, management contract, or similar
arrangement with the seller (or managers, directors, owners, or employees
of the seller)?
Yes (X) No
If Yes, specify (a) the type of agreement, and (b) the maximum amount of
consideration (not including interest) paid or to be paid under the
agreement. See the instructions for line 6.
For Paperwork Reduction Act Notice, see instructions.
Cat. Xx. 00000X Xxxx 0000 (Xxx. 1-96)
2/19/96 Published by Tax Management Inc., a subsidiary of The Bureau of
National Affairs, Inc. 8594.I
2
Form 8594 (Rev. 1-96) Page 2
Part III Class III, Intangible Amortizable Assets Only - Complete if
applicable. The amounts shown below also must be included under
Class III assets in Part II. Attach additional sheets if more
space is needed.
Assets Fair Market Value Useful Life Allocation of Sales Price
$ $ None
$ $
$ $
$ $
$ $
Part IV Supplemental Statement - To be completed only if amending an
original statement or previously filed supplemental statement
because of an increase or decrease in consideration N/A
7. Assets Allocation of Sales Price Increase or Redetermined Allocation
as Previously Reported (Decrease) of Sales Price
Class I $ $ $
Class II $ $ $
Class III $ $ $
Class IV $ $ $
Totals $ $
8. Reason(s) for increase or decrease. Attach additional sheets if more
space is needed.
9. Tax year and tax return form number with which the original form 8594 and
any supplemental statements were filed.
1
EXHIBIT 6 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
CERTIFICATE OF SATISFACTION
TO THE PURCHASE AND SALE AGREEMENT
ENTERED INTO BY AND BETWEEN XXXXXXXXX OIL COMPANY, INC.
AND XXXXX PETROLEUM COMPANY
ON ____________, 1996
(PARAGRAPH 2.12(e) THEREOF)
The undersigned parties to that certain Purchase and Sale Agreement by and
between Xxxxx Petroleum Company and Xxxxxxxxx Oil Company, Inc., to be entered
into this ____ day of ____________, 1996, declare that all conditions to the
Closing have been satisfied and the transaction is Closed.
XXXXXXXXX OIL COMPANY, INC., XXXXX PETROLEUM COMPANY,
a California corporation a Delaware corporation
By: ____________________________ By: _______________________________
Xxxx X. Xxxxxxxxx, President Xxxxx X. Xxxxxxx, President
and Chief Executive Officer
By: ____________________________ By: _______________________________
Xxxxx X. Xxxxxx, Secretary Xxxxxxx X. Xxxxx, Secretary
1
EXHIBIT 7 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
FIRST AMERICAN TITLE INSURANCE COMPANY
MAIN OFFICE: 0000 XXXXXXXXXX XXXXXX, XXXXX 000 (93309)
MAILING ADDRESS: X.X. XXX 0000, XXXXXXXXXXX, XX 00000
TELEPHONE (000) 000-0000
FACSIMILE (000) 000-0000
E S C R O W I N S T R U C T I O N S
FIRST AMERICAN TITLE INSURANCE COMPANY CONDUCTS ESCROW BUSINESS UNDER
CERTIFICATE OF AUTHORITY NO. 2787 ISSUED BY THE STATE OF CALIFORNIA
DEPARTMENT OF INSURANCE
FINAL DRAFT
Escrow Officer: XXXXX X. XXXXX Property: SECTION 32
PROPERTY AND
OILFIELD
EQUIP/PROD.FACILITIES,
TAFT, CA
Escrow Number: 1128321N
Date: November 4, 1996
To:FIRST AMERICAN TITLE INSURANCE COMPANY
THESE INSTRUCTIONS ARE ENTERED INTO PURSUANT TO THAT CERTAIN PURCHASE AND SALE
AGREEMENT DATED WHEN EXECUTED BY XXXXX PETROLEUM COMPANY AND XXXXXXXXX OIL
COMPANY, INC. A COPY OF WHICH IS ATTACHED HERETO. AS ESCROW HOLDER YOU SHALL
BE CONCERNED ONLY WITH THOSE SPECIFIC PROVISIONS OF SAID CONTRACT SET FORTH AND
ENUMERATED THEREIN AS FOLLOWS:
#1.3, #1.11
#2.1, #2.2, #2.3, #2.6 #2.7 CLARIFICATION: DISTRIBUTION OF SALE PROCEEDS AND
RECORDATION OF DOCUMENTS WITH XXXX COUNTY RECORDER WILL BE HANDLED AT THE
OFFICE OF ESCROW HOLDER, FIRST AMERICAN TITLE INSURANCE COMPANY, 0000
XXXXXXXXXX #000, XXXXXXXXXXX, XX. 00000. THIS ESCROW TO CLOSE CONCURRENTLY
WITH ESCROWS #1128321N AND #1125444N,
#2.8 AND #2.9 CLARIFICATION: PARTIES TO SUPPLY ESCROW HOLDER WITH INFORMATION
SO PRORATIONS CAN BE HANDLED THROUGH ESCROW OR NOTIFY ESCROW HOLDER BY MUTUAL
WRITTEN INSTRUCTIONS THAT PRORATIONS WILL BE HANDLED OUTSIDE OF THIS ESCROW;
#2.11, #2.12 CLARIFICATION: DOCUMENTS TO BE DEPOSITED INTO ESCROW OR PARTIES
TO NOTIFY ESCROW HOLDER BY MUTUAL WRITTEN INSTRUCTIONS THAT SAID DOCUMENTS HAVE
BEEN DELIVERED OUTSIDE OF ESCROW, #2.14, ARTICLES VII AND VIII, DOCUMENTS WILL
BE DEPOSITED AND APPROVED BY COUNSEL PRIOR TO CLOSE OF ESCROW.
ALL PARTIES AGREE THAT TRANSFER OF SAID PROPERTY IS NOT BEING HANDLED THROUGH
THE BULK SALE PROCESS. ESCROW HOLDER WILL NOT CONDUCT ANY UCC SEARCHES. NO
TITLE INSURANCE OR GUARANTEES OF TITLE WILL BE ISSUED BY ESCROW HOLDER WITH
REGARD TO PERSONAL PROPERTY BEING TRANSFERRED IN THIS ESCROW. A CLTA POLICY OF
TITLE INSURANCE WILL BE ISSUED BY FIRST AMERICAN TITLE INSURANCE COMPANY IN THE
AMOUNT AS SHOWN IN ALLOCATION FOR REAL PROPERTY AND COST FOR SAME WILL BE PAID
BY XXXXXXXXX OIL COMPANY, INC.
2
ANY AND ALL OTHER PROVISIONS OF SAID CONTRACT NOT ENUMERATED ABOVE IMPOSE NO
DUTIES ON YOU AS ESCROW HOLDER AND ARE MATTERS OF AGREEMENT AND UNDERSTANDING
BETWEEN THE PARTIES WITH WHICH YOU SHALL NOT BE CONCERNED.
THE ATTACHED GENERAL PROVISIONS AND PAGE #1B ARE HEREBY MADE A PART OF THESE
INSTRUCTIONS.
XXXXXXXXX OIL COMPANY, INC. XXXXX PETROLEUM COMPANY
BY: ________________________ BY: __________________________
ITS: _______________________ ITS: _________________________
3
ESCROW INSTRUCTIONS - PAGE 1B
Escrow Number: 1128321N
NOTICE OF TAX REPORTING AND WITHHOLDING OBLIGATIONS OF THE PARTIES:
State Law
In accordance with Sections 18805 and 26131 of the Revenue and Taxation
Code, a buyer may be required to withhold an amount equal to three and
one-third percent of the sales price in the case of the disposition of
California real property interest by either:
1. A seller who is an individual with a last known street address outside of
California or when the disbursement instructions authorize the proceeds be sent
to a financial intermediary of the seller, OR
2. A corporate seller which has no permanent place of business in California.
The buyer may become subject to penalty for failure to withhold an amount equal
to the greater of 10 percent of the amount required to be withheld or five
hundred dollars ($500).
However, notwithstanding any other provision included in the California
statutes referenced above, no buyer will be required to withhold any amount or
be subject to penalty for failure to withhold if:
1. The sales price of the California real property conveyed does not exceed
one hundred thousand dollars ($100,000), OR
2. The seller executes a written certificate, under the penalty of perjury,
certifying that the seller is a resident of California, or if a corporation,
has a permanent place of business in California, OR
3. The seller, who is an individual, executes a written certificate, under
the penalty of perjury, that the California real property being conveyed is the
seller's principal residence (as defined in Section 1034 of the Internal
Revenue Code. The seller is subject to penalty for knowingly filing a
fraudulent certificant for the purpose of avoiding the withholding requirement.
The California statutes referenced above include provisions which authorize the
Franchise Tax Board to grant reduced withholding and waivers from withholding
on a case-by-cases basis. The parties to this transaction should seek an
attorney's, accountant's, or other tax specialist's opinion concerning the
effect of this law on this transaction and should not act on any statements
made or omitted by the escrow or closing officer.
4
Federal Law: See Item #16 of General Provisions
Federal 1099 Reporting for Resident Seller
The parties acknowledge that First American Title has an obligation to
provide information from this transaction to the Internal Revenue Service at
the close of the escrow. This information includes, but is not limited to, the
taxpayer identification and/or social security number(s) of the sellere(s) and
the gross sales price. First American Title can not authorize the recording
and closing of this transaction without receipt of information deemed adequate
by First American Title for complying with the IRS reporting requirements.
Failure to provide the requested information to escrow holder will result in a
delay in closing.
THE UNDERSIGNED HEREBY EXPRESSLY ACKNOWLEDGE RECEIPT OF THE ABOVE NOTICE.
XXXXXXXXX OIL COMPANY, INC.
BY:
XXXXX PETROLEUM COMPANY
BY:
5
GENERAL PROVISIONS
1. Deposit of Funds and Disbursements
You shall deposit all funds received in this escrow in any bank insured by an
agency of the United States Government, including your affiliated bank, First
American Trust Company, in one or more of your general escrow demand accounts.
These funds may be transferred to any other general escrow demand account or
accounts, in the above named bank or banks, including those maintained in your
affiliated bank. All disbursements shall be made by your check. You are
authorized not to close escrow or disburse until good funds have been confirmed
in escrow.
2. Prorations and Adjustments
The expression "close of escrow" used in this escrow means the date of which
instruments referred to herein are recorded and related only to prorations
and/or adjustments unless otherwise specified.
3. Recordation of Instruments
You are authorized to record any documents delivered through this escrow, the
recording of which is necessary or proper in the issuance of the requested
policy of title insurance.
4. Authorization to Execute Assignment of Insurance Policies
You are to execute on behalf of the parties hereto form assignments of interest
in any insurance policies (other than title insurance) called for in this
escrow; forward assignments and policies upon close of escrow to the agent with
the request, first, that insurer consent to such transfer and/or attach a
loss-payable clause and/or make such other additions or corrections as may have
been specifically required herein, and second, that the agent there after
forward such policies to the parties entitled to them.
In all acts in this escrow relating to insurance, including adjustments,
if any, you shall be fully protected in assuming that each policy is in force
and that the necessary premium therefor has been paid.
5. Authorization to Furnish Copies
You are to furnish a copy of these instructions, amendments thereto, closing
statements and/or any other documents deposited in this escrow to the lender or
lenders, the real estate broker or brokers and/or the attorney or attorneys
involved in this transaction upon request of the lenders, brokers or attorneys.
6. Personal Property Taxes
No examination or insurance as to the amount or payment of personal property
taxes is required unless specifically requested.
7. Right of Cancellation
Any party instructing you to cancel this escrow shall file notice of
cancellation in your office, in writing. You shall within a reasonable time
thereafter mail, by certified mail, one copy of the notice to each of the other
parties at the addresses stated in this escrow. Unless written objection to
cancellation is filed in your office by a party within ten (10) days after
date of mailing, you are authorized at your option to comply with the notice
and demand payment of your cancellation charges as provided in this agreement.
If written objection is filed, you are authorized at your option to hold all
money and instruments in this escrow and take no further action until
otherwise directed, either by the parties' mutual written instructions, or
final order of a court of competent jurisdiction.
6
8. Action in Interpleader
The parties hereto expressly agree that you, as escrow holder, have the
absolute right at your election to file an action in interpleader requiring the
parties to answer and litigate their several claims and rights among themselves
and you are authorized to deposit with the clerk of the court all documents and
funds held in this escrow. In the event such action is filed, the parties
jointly and severally agree to pay your cancellation charges and costs,
expenses and reasonable attorney's fees which you are required to expend or
incur in the interpleader action, the amount thereof to be fixed and judgment
therefor to be rendered by the court. Upon the filing of the action, you
shall thereupon be fully released and discharged from all obligations to
further perform any duties or obligations otherwise imposed by the terms of
this escrow.
9. Termination of Agency Obligations
If there is no action taken on this escrow within six (6) months after the
"time limit date" as set forth in the escrow instructions or written extension
thereof, your agency obligation shall terminate at your option and all
documents, monies or other items held by you shall be returned to the parties
depositing same.
If the event of cancellation of this escrow, whether it be at the request of
any of the parties or otherwise, the fees and charges due First American Title
Insurance Company, including expenditures incurred and/or authorized shall be
borne equally by the parties hereto (unless otherwise agreed to specifically.)
10. Conflicting Instructions
Should you before or after close of escrow receive or become aware of any
conflicting demands or claims with respect to this escrow or the rights of any
of the parties hereto, or any money or property deposited herein or affected
hereby, you shall have the right to discontinue any or all further acts on your
part until the conflict is resolved to your satisfaction, and you shall have
the further right to commence or defend any action or proceedings for the
determination of the conflict as provided in paragraphs 7 and 8 or these
General Provisions.
11. Funds Retained in Escrow
If for any reason funds are retained in escrow, you may deduct therefrom $10.00
as a monthly charge as custodian thereof.
12. Usury
You are not to be concerned with any question of usury in any loan or
encumbrances involved in the processing of the escrow and you are hereby
released of any responsibility of liability therefor.
13. Indemnify for Attorneys Fees and Costs
In the event suit is brought by any party to this escrow, including the title
company or any other party, as against each other, or others, including the
title company, claiming any right they may have as against each other or
against the title company, then in that event, the parties hereto agree to
indemnify and hold harmless the title company against any attorney's fees and
costs incurred by it.
14. Amendments to Escrow Instructions
Any Amendment or supplement to these escrow instructions must be in writing.
These escrow instructions constitute the entire escrow between the escrow
holder and the parties hereto.
7
15. Supplemental taxes:
Seller and Buyer acknowledge that the subject property may be subject to
supplemental taxes due as a result of change of ownership taking place through
this escrow. Any necessary adjustment due either party on receipt of a
supplemental tax xxxx will be made by the parties outside of this escrow and
escrow holder is released of any liability in connection with same.
16. Foreign Investment in Real Property Tax Act
The Foreign Investment in Real Property Tax Act of 1980 as amended by the Tax
Reform Act of 1984 places special requirements for tax reporting and
withholding on the parties to a real estate transaction where the transferor
(seller) is a non-resident alien or non-domestic corporation or partnership or
is a domestic corporation or partnership controlled by non-residents or
non-resident corporations or partnerships. The parties to this transaction are
seeking an attorney's, accountant's, or other tax specialist's opinion
concerning the effect of this Act on this transaction and are not acting on
any statements made or omitted by the escrow or closing officer.
(INITIAL HERE: ___________________________)
17. Preliminary change of Ownership form:
Prior to close of escrow buyer will be sent a Preliminary Change of Ownership
Report, which is required by the County Recorder's office to accompany
documents called for herein at the time of recording, in accordance with
Section 480.3 of the Revenue and Taxation Code. Buyer is aware he must return
the form completed and signed prior to the close of escrow. If escrow holder
does not receive this report prior to close of escrow, buyer authorizes escrow
holder to charge his account the sum of $20.00 which is the fee the County
Recorder charges for recording the Deed without the completed form. Buyer is
hereby put on notice that the Assessor is required to mail out the form for
completion later on if it has not been filed at close of escrow.
18. Good Funds Law:
The parties understand that all funds to close escrow must be deposited
sufficient number of days prior to the close of escrow in order to comply with
Section 12413.1 of the California Insurance Code. Generally speaking, wire
transferred funds may be deposited into our escrow account any time prior to
the close of escrow. Cashier's checks and certified checks must be deposited
into our escrow account the business day before the close of escrow.
19. Escrow Trust Funds:
Buyer and seller acknowledge that escrow holder will be depositing all funds in
escrow in a NON-INTEREST bearing fiduciary account at one of the following
banks: Union Bank.
20. Disclosure of Taxpayer Identification Numbers
Internal Revenue Code Section 6109(h) imposes requirements for furnishing,
disclosing, and including taxpayer identification numbers in tax returnes on
the parties to a residential real estate transaction involving seller-provided
financing. The parties understand that the disclosure reporting requirements
are exclusive obligations between the parties to this transaction and that
First American Title Insurance Company is not obligated to transmit the
taxpayer identification numbers to the Internal Revenue Service or to the
parties. First American Title Insurance Company is not rendering an opinion
concerning the effect of this law on this transaction, and the parties are not
acting on any statements made or omitted by the escrow or closing officer. To
facilitate compliance with this law, the parties to this escrow hereby
authorize First American Title Insurance Company to release any party's
taxpayer identification number to any requesting party who is a party to this
transaction. The requesting party shall deliver a written request to escrow.
The parties hereto waive all rights of confidentiality regarding their
respective taxpayer identification numbers and agree to hold First
American Title Insurance Company harmless
8
against any fees, costs, or judgments incurred and/or awarded in connection
with the release of taxpayer identification numbers.
1
EXHIBIT 8 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
CERTIFICATE OF COMPLIANCE
TO THE PURCHASE AND SALE AGREEMENT
ENTERED INTO BY AND BETWEEN XXXXXXXXX OIL COMPANY, INC.
AND XXXXX PETROLEUM COMPANY
ON NOVEMBER 8, 1996
(PARAGRAPH 7.6 THEREOF)
The undersigned certify that Xxxxxxxxx Oil Company, Inc., has complied
with the matters set forth in Sections 7.1, 7.2, 7.3, and 7.4 of that certain
Purchase and Sale Agreement by and between Xxxxx Petroleum Company and
Xxxxxxxxx Oil Company, Inc., entered into on November 8, 1996.
Date: ___________, 1996 XXXXXXXXX OIL COMPANY, INC.,
a California corporation
By: _____________________________
Xxxx X. Xxxxxxxxx, President
By: _____________________________
Xxxxx X. Xxxxxx, Secretary
1
EXHIBIT 9 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
FORM OF OPINION OF COUNSEL
TO XXXXXXXXX OIL COMPANY, INC.
______________, 1996
Xxxxx Petroleum Company
Attn: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
00000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxxx Xxx X
Xxxx, XX 00000
Re: Xxxxx Petroleum Company / Xxxxxxxxx Oil Company, Inc.
Asset Purchase and Sale Transaction
Gentlemen:
We have acted as counsel to Xxxxxxxxx Oil Company, Inc., a California
corporation ("Xxxxxxxxx"), in connection with the purchase of substantially
all the assets of Xxxxxxxxx by Xxxxx Petroleum Company, a Delaware corporation
("Xxxxx"), pursuant to that certain Purchase and Sale Agreement, dated November
8, 1996, by and between Xxxxxxxxx and Xxxxx (the "Agreement").
In rendering the opinions set forth below, we have assumed the due
authorization, execution and delivery of the Agreement by Xxxxx.
Based on the foregoing, and in reliance thereon, but subject to the
qualifications herein set forth, we are of the opinion that:
1. Xxxxxxxxx is a corporation duly organized and validly existing under,
and by virtue of, the laws of the State of California and is in good standing
under such laws. Xxxxxxxxx has requisite corporate power to own and operate
its properties and assets, and to carry on its business as presently conducted.
2. Xxxxxxxxx has full corporate power and authority to execute and
deliver the Agreement and to perform its obligations under the terms of the
Agreement.
3. All corporate action on the part of Xxxxxxxxx and its directors
and shareholders necessary for the authorization, execution, delivery and
performance of the Agreement and the consummation of the transactions
contemplated thereby has been taken.
2
The Agreement has been duly executed and delivered by Xxxxxxxxx and constitutes
a legal, valid and binding obligation of Xxxxxxxxx, enforceable against it in
accordance with its respective terms, except as such enforceability may be
limited by or subject to (a) any bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to creditor's rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4. The individuals and entities executing the Agreement as shareholders
of Xxxxxxxxx are the beneficial owners of all the issued and outstanding shares
of Xxxxxxxxx common stock (the "Shares"). There are no outstanding options,
warrants, rights of first refusal, or other rights calling for the issuance
of, or any security convertible into or exchangeable for, the Shares and no
other person or entity has any right in or to the Shares.
5. No consent, approval or authorization of or designation of Xxxxxxxxx
is required in connection with the valid execution and delivery of the
Agreement, or the consummation of the transactions contemplated thereby on the
Closing thereof, except as such have been obtained or made prior to or upon the
date hereof.
6. To our best knowledge, no default exists and no event has occurred
which would constitute a default under, or violation in the due performance and
observance of any term, covenant or condition, or breach of, Xxxxxxxxx'x
Articles of Incorporation or Bylaws or any indenture, license, lease,
franchise, mortgage, instrument, or other agreement to which Xxxxxxxxx is a
party, or by which it or its properties may be bound; or (a) an event that
would permit any party to any agreement or instrument to terminate it or to
accelerate the maturity of any indebtedness or other obligation of Xxxxxxxxx;
(b) an event that would result in the creation or imposition of any lien,
charge, or encumbrance on any asset of Xxxxxxxxx; or (c) an event that would
conflict with any order, rule, or regulation directed to Xxxxxxxxx by any
court or governmental agency or body having jurisdiction over it.
7. Except as disclosed in the Xxxxxxxxx Disclosure Letter (as defined in
the Agreement), to our best knowledge, there is no suit, action, arbitration,
or legal, administrative, or other proceeding or governmental investigation
pending or threatened against or affecting Xxxxxxxxx or any of its businesses
or properties or financial or other condition.
8. Except as disclosed in the Xxxxxxxxx Disclosure Letter, there are no
agreements, written or oral, between Xxxxxxxxx and any other party that affect,
directly or indirectly, the Assets.
We are members of the bar of the State of California, and accordingly we
do not purport to be experts on, or to be qualified to express any opinion
herein concerning, nor do we express any opinions herein concerning, any law
other than Federal law and the laws of the State of California.
This opinion letter is limited to the matters expressly stated herein and
no opinion or other statement may be inferred or implied beyond the matters
expressly stated herein. This
3
opinion letter is addressed to Xxxxx for the benefit of Xxxxx and is only for
Xxxxx'x use in connection with the Agreement. This opinion letter may not be
relied upon by any other person or entity without prior written consent.
This opinion is as of this date, and we expressly decline any undertaking to
advise you of any matters arising subsequent to the date hereof which would
cause us to amend any portion of the foregoing in whole or in part.
Very truly yours,
Xxxxx X. Xxxxx, Esq.
cc: Nordman, Cormany, Hair & Xxxxxxx
Attn: Xxxxx X. XxXxxx, Esq.
1
EXHIBIT 10 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
CERTIFICATE OF COMPLIANCE
TO THE PURCHASE AND SALE AGREEMENT
ENTERED INTO BY AND BETWEEN XXXXXXXXX OIL COMPANY, INC.
AND XXXXX PETROLEUM COMPANY
ON NOVEMBER 8, 1996
(PARAGRAPH 8.6 THEREOF)
The undersigned certify that Xxxxx Petroleum Company has complied with the
matters set forth in Sections 8.1, 8.2, 8.3 and 8.5 of that certain Purchase
and Sale Agreement by and between Xxxxx Petroleum Company and Xxxxxxxxx Oil
Company, Inc., entered into on November 8, 1996.
Date: _____________, 1996 XXXXX PETROLEUM COMPANY,
a Delaware corporation
By: ___________________________________
Xxxxx X. Xxxxxxx, President
and Chief Executive Officer
By: ___________________________________
Xxxxxxx X. Xxxxx, Secretary
1
EXHIBIT 11 TO THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN XXXXX PETROLEUM COMPANY
AND XXXXXXXXX OIL COMPANY, INC.
FORM OF OPINION OF COUNSEL
TO XXXXX PETROLEUM COMPANY
__________________, 1996
Xxxxxxxxx Oil Company, Inc.
Attn: Xx. Xxxxxx X. Xxxxx, Xx.
Treasurer and Chief Financial Officer
000 Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Re: Xxxxx Petroleum Company / Xxxxxxxxx Oil Company, Inc.
Asset Purchase and Sale Transaction
Gentlemen:
We have acted as counsel to Xxxxx Petroleum Company, a Delaware
corporation ("Xxxxx"), in connection with the purchase of substantially all the
assets of Xxxxxxxxx Oil Company, Inc., a California corporation ("Xxxxxxxxx"),
by Xxxxx, pursuant to that certain Purchase and Sale Agreement, dated November
8, 1996, by and between Xxxxxxxxx and Xxxxx (the "Agreement").
In rendering the opinions set forth below, we have assumed the due
authorization, execution and delivery of the Agreement by Xxxxxxxxx.
1. Xxxxx is a corporation duly organized and validly existing under, and
by virtue of, the laws of the State of Delaware and is in good standing under
such laws. Xxxxx has requisite corporate power to own and operate its
properties and assets, and to carry on its business as presently conducted.
2. Xxxxx has full corporate power and authority to execute and deliver
the Agreement and to perform its obligations under the terms of the Agreement.
3. All corporate action on the part of Xxxxx necessary for the
authorization, execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated thereby, has been taken. The
Agreement has been duly executed and delivered by Xxxxx and constitutes a
legal, valid and binding obligation of Xxxxx, enforceable against it in
accordance with its respective terms, except as such enforceability may be
limited by or subject
2
to (a) any bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to creditor's rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4. No consent, approval or authorization of or designation of Xxxxx is
required in connection with the valid execution and delivery of the Agreement
by Xxxxx, or the consummation by Xxxxx of the transactions contemplated thereby
on the Closing thereof, except as such have been obtained or made prior to or
upon the date hereof.
5. To our best knowledge, there is no suit, action, arbitration, or
legal, administrative, or other proceeding or governmental investigation that
is material to the transactions contemplated by this Agreement, pending or
threatened against or affecting Xxxxx or any of its businesses or properties
or financial or other condition.
We are members of the bar of the State of California, and except for our
opinion set forth in Paragraph 1 above, we do not purport to be experts on, or
to be qualified to express any opinion herein concerning, nor do we express any
opinions herein concerning, any law other than federal law and the laws of the
State of California.
This opinion letter is limited to the matters expressly stated herein and
no opinion or other statement may be inferred or implied beyond the matters
expressly stated herein. This opinion letter is addressed to Xxxxxxxxx for the
benefit of Xxxxxxxxx and is only for Xxxxxxxxx'x use in connection with the
Agreement. This opinion letter may not be relied upon by any other person or
entity without prior written consent. This opinion is as of this date, and we
expressly decline any undertaking to advise you of any matters arising
subsequent to the date hereof which would cause us to amend any portion of the
foregoing in whole or in part.
Very truly yours,
NORDMAN, CORMANY, HAIR & XXXXXXX
xx: Xxxxx Xxxxx, Esq.
