DATED 1997
---------------------------------
PURCHASE AND SALE AGREEMENT
between
TEXACO SLASK Sp. z.o.o.
POL-TEX METHANE Sp. z.o.o.
and
GLOBEGAS B.V.
THIS AGREEMENT is made the day of , 1997.
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BETWEEN:
(1) TEXACO SLASK Sp. z.o.o. ("Buyer") a Polish limited liability company
registered in the District Court for Warsaw, Poland in the Commercial Register
under RBH No. and with its registered office at xx. X. Xxxxxxxxxxxx 00, 00-000
Xxxxxx, Xxxxxx and represented for the purpose of signature hereof by Xxxxxx X.
Xxxxxxx in his capacity as the President of Buyer.
(2) POL-TEX METHANE Sp. z.o.o. ("Seller") a Polish limited liability company
registered in the District Court for Katowice, Poland in the Commercial Register
under RHB No. 5508 and with is registered office at xx. Xxxxxxx 0.00-000
Xxxxxxxxxx Xxxxx, Xxxxxx and represented for the purpose of signature hereof by
Wolfgang Rauball in his capacity as the President of Seller and by Xxxxxxx X.
Andraczke in his capacity as Vice President of Seller, and
(3) GLOBEGAS B.V. ("GlobeGas") a Netherlands company with its registered office
at c/o First Alliance Trust, Xxxxxxxxxxx 000, XX -1017 CA Amsterdam, The
Netherlands and represented for the purpose of signature hereof by Xxxxxxxx
Xxxxxxx in his capacity as Managing Director of GlobeGas and by Xxxx Xxxxxx in
his capacity as Alternate Managing Director of GlobeGas.
WHEREAS:
(A) Seller desires to sell all of its interest in the Assets to Buyer and
withdraw from Concession 134/93 on the terms and conditions hereinafter set
forth; and
(B) Buyer desires to purchase all of Seller's interest in the Assets and
acquire the New Concession upon the terms and conditions hereinafter set forth.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1. SUBJECT MATTER, DEFINITIONS AND RULES OF CONSTRUCTION
1.1 Definitions. For purposes of this Agreement (including the recitals
set forth above), except as otherwise expressly provided or unless the context
otherwise requires, the terms defined in this Section 1.1 have the meanings
herein assigned to them and the capitalised terms defined elsewhere in this
Agreement, by inclusion in quotation marks and parentheses, shall have the
meanings so ascribed to them.
"Abandonment Costs" means all costs and expenses relating to, arising from
or necessitated by the cessation and winding up of operations on the New
Concession including but in no way limited to, costs and expenses for plugging
and abandoning xxxxx, dismantling and removing facilities and equipment and
remediating and restoring the area within the New Concession in compliance with
all applicable Laws.
"Accrual Basis" means the basis of accounting under which costs and
revenues are regarded as applicable to the period in which the liability for the
cost is incurred or the right to the benefit arises regardless of when invoiced,
paid or received.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing, it being understood and agreed that with
respect to a corporation, control shall mean a direct or indirect ownership of
more than fifty percent (50%) of the voting stock.
"Agreed Rate" means a rate which is equal to the lesser of (i) interest
compounded on a monthly basis, at the rate per annum equal to the one (1) month
term, LIBOR rate for U.S. dollar deposits, as published by the Financial Times
of London, plus one percent (1%) applicable on the first Business Day prior to
the due date of payment and thereafter on the first Business Day of each
succeeding one (1) month term, and (ii) the maximum rate from time to time
permitted by applicable law.
"Agreement" means this Purchase and Sale Agreement, including the Schedules
attached hereto.
"Assets" means the Leases, Property, Surface Use Agreements and Permits.
"Bcf" means one billion (1,000,000,000) cubic feet.
"Business Day" means any day other than a Saturday or Sunday on which banks
are, or as the context may require were, open for business in Poland.
"Capital Costs" means all capital costs an expenses incurred subsequent to
the Effective Time (other than Net Profit Payments and Operating Costs), in any
way relating to the New Concession including, but not in any way limited to,
costs and expenses for the following:
(a) acquisition and interpretation of geology and geophysical
studies, tests and seismic surveys;
(b) drilling, completing and equipping of xxxxx and injectors on the
New Concession;
(c) acquisition, design, construction, installation, assembly and
furnishing of buildings, offices and warehouses;
(d) acquisition, design construction, installation and assembly of
facilities, plant or equipment relating to the treating, processing or marketing
of Methane Gas produced from the New Concession including, but not limited to
separators, treaters, gathering systems, heat exchangers, pumps, control
systems, vessels, piping and tanks;
(e) acquisition, design, construction, installation and assembly of
facilities, plant, equipment or pipelines for gathering, compressing,
transporting or disposing or removing of Methane Gas, water or other substances
produced from or generated on the New Concession;
(f) engineering and design work performed by or for Buyer;
(g) acquisition and installation of utilities, power supply and
communication equipment;
(h) acquisition of vehicles, drilling rigs and mobile other
equipment;
(i) design and construction of roads and bridges;
(j) land surface preparation and reclamation;
(k) purchase of materials and inventories;
(l) acquisition of land and rights in lands including but not limited
to fee interests, freeholds, rights-of-way, easements, surface rights and
leases;
(m) replacement of any of the items set out above due to
obsolescence, deterioration, loss or damage;
(n) all sums paid by Buyer to Seller in accordance with Sections
2.4(a), (d) and (g) of this Agreement;
(o) salaries, wages, benefits, training and travel of Buyer's
employees and its Affiliates' employees whose work is attributable to the
development of the New Concession;
(p) an amount equal to five (5%) of all Capital Costs, representing
administrative overhead costs incurred by Buyer or its Affiliates;
(q) municipal and regional improvements which are required by a
Governmental Body;
(r) licensed of purchased technology, including patents and other
proprietary rights;
(s) planning and implementation of further phases of development of
the New Concession, including engineering, scheduling and contract preparation
and review;
(t) outside legal counsel and tax counsel fees;
(u) damages and Losses not covered by insurance;
(v) charges for the use of Buyer's or its Affiliates' equipment or
facilities;
(w) requirements, whether pursuant to any Laws or otherwise relating
to the proper ecological or environmental maintenance of the New Concession,
including costs of compliance with any Laws pertaining to environmental
protection, pollution control or rehabilitation and the costs of any related
studies;
(x) any and all sums paid to any Governmental Body in compliance with
and for the issuance, extension, renewal or amendment of the New Concession or
any permit, license, concession, usufruct or other permit, authorisation,
approval or consent required for the ownership and operation of the New
Concession and the carrying on of Buyer's business including the operation and
development of the New Concession;
(y) all Abandonment Costs calculated in accordance with Section
3.4(c);
(z) all fees (excluding Royalties) payable under the terms of the New
Concession; and
(zz) Interest calculated each Quarter in accordance with the following
formula:
[TCC - (TGR - TOC - TR - TT)] x AR where:
TCC = total historical U.S. dollar value of all Capital Costs at
the beginning of the Quarter;
TGR = total historical U.S. dollar value of all Gross Revenue at
the beginning of the Quarter;
TOC = total historical U.S. dollar value of all Operating Costs
at the beginning of the Quarter;
TR = total historical U.S. dollar value of all Royalties at
the beginning of the Quarter;
TT = total historical U.S. dollar value of all Taxes at the
beginning of the Quarter; and
AR = the Agreed Rate;
provided, however, that there shall not be any interest charge
for any Quarter in which TCC is less than (TGR - TOC - TR - TT).
"Company Documents" means with respect to a Polish company, its deed of
association and with respect to a Netherlands company, its articles of
incorporation and by-laws.
"Completion" means the transfer of the Assets from Seller to Buyer as
described in Section 2.3 and payment by Buyer to Seller of the sum set forth in
Section 2.4(a).
"Completion Date" means the date on which Completion occurs.
"Concession 134/93" means Concession Number 134/93 issued by the Minister
for Environmental Protection, Natural Resources and Forestry for the Republic of
Poland on 21st June 1993, for the exploitation of Methane Gas from the area
described in Appendix "A" to said Concession, as modified, supplemented or
amended from time to time.
"Controlling Interest" means, with reference to MMJ and/or MMR, a sixty-
seven percent (67%) or greater ownership nterest therein and which is sufficient
to entitle the owner thereof to direct the management, policies and operations
of such entity, directly or indirectly, whether through the ownership of voting
capital, by contract or otherwise.
"Conveyance Documents" means any and all assignments, deeds, bills of sale,
novation agreements, certificates, statements, declarations or other instruments
as necessary to effect and confirm the full and complete transfer of all of the
Assets from Seller to Buyer in accordance with the terms of this Agreement.
"Effective Time" means the effective time of the transfer of the Assets
from Seller to Buyer which will be 00:01 hours Central European Time on the
Completion Date.
"Environmental Claim" means actions, claims, or proceedings by any third
Persons associated with the Assets or Concession 134/93 and based on an
Environmental Condition or Environmental Law in connection with any chemical
substance on or originating from the Assets or the lands covered by Concession
134/93 prior to the Effective Time.
"Environmental Condition" means a condition with respect to the air, land,
soil, surface, subsurface strata, surface water, ground water, or sediments
which causes, at any time before or after the Effective Date, any portion of the
Assets or the lands covered by Concession 134/93 to be subject to remediation
under, or not in compliance with any Environmental Law or a lease or agreement
excluding plugging and abandonment obligations.
"Environmental Law" means any Law relating to pollution, the protection of
the environment, or the release or disposal of waste materials.
"Fair Market Value" means the price that a reasonably prudent purchaser of
goods, service or Methane Gas would pay for such goods, services or Methane Gas
in an arm's length cash transaction with an independent supplier having regard
to current prices (net of transportation costs) for similar goods or services,
availability of supply, and economic conditions affecting the industry generally
at the time the transaction is entered into.
"Governmental Body" means an national, regional, county, municipal, local
or other governmental authority or judicial or regulatory ministry, agency,
board, body, department, bureau, commission, instrumentality, court, tribunal or
quasi-governmental authority in any jurisdiction (domestic or foreign) having
jurisdiction over the Assets, Concession 134/93, the New Concession, any Party
or any of the transactions contemplated by this Agreement.
"Gross Revenue" means in respect of any period, the aggregate of all
proceeds attributable to such Period from the sale and delivery of Methane Gas
produced from the New Concession.
"Law" means any applicable law, order, regulation, judgement or decree of
any Governmental Body, including the law of any Governmental Body, including but
not limited to those relating to occupational safety and health, consumer
product safety, employee benefits, environmental laws, zoning laws or
regulations, or other applicable laws or regulations.
"Leases" means the lease agreement listed on Schedule 3.
"Losses" or "Loss" means any and all losses, liabilities, claims, demands,
penalties, fines, assessments, settlements, damages and any related expenses of
whatever kind or nature, known or contingent or otherwise, including, without
limitation, legal, accounting, tax, consulting and investigation expenses and
litigation costs including without limitation, response, remedial or inspection
costs or any cleanup and laboratory costs.
"Material Defect" means an encumbrance, encroachment, irregularity or
defect in Seller's title to any of the Assets or any fact or condition which is
at variance or in conflict with any of the representations or warranties of
Seller contained in this Agreement including, but not limited to, any
reservation, exception, limitation, restriction, lien, encumbrance or other
defect which results in or could reasonably be expected in Buyer's opinion to
result in: (a) a loss of title such that Seller's or Buyer's title to,
ownership of, interest in or right to possess a material Asset would be reduced;
or (b) a loss or impairment or restriction of Seller's or Buyer's right or
ability to hold, possess, operate, use or maintain the affected material Asset
in compliance with all applicable laws, regulations, ordinances, orders, permits
and licenses.
"Methane Gas" means any natural gas stored in coal seams and/or adjacent
strata (including overlying and underlying strata) located within the New
Concession.
"MMJ" means XxXxxxxx Methane Jastrzebie Sp. z.o.o., a Polish limited
liability company registered in the District Court for Katowice, Poland in the
Commercial Register under RHB No. 12105 on 30 May 1995.
"MMR" means XxXxxxxx Methane Rybnik Sp. z.o.o., a Polish limited liability
company registered in the District Court for Katowice, Poland in the Commercial
Register under RHB No. 10158 on 10 November 1993.
"Month" means the period of 00:01 hours Central European Time on the first
day of a calendar month to 00:01 hours Central European Time on the first day of
the next succeeding calendar month.
"Property" means the items of Property listed on Schedule 4.
"Net Profit" means in respect of any particular Quarter, the amount, if
any, by which the sum of all Gross Revenue received by Buyer in such Quarter and
all prior Quarters during the term of this Agreement exceeds the sum of all
Capital Costs, Operating Costs, Taxes and Royalties incurred on an Accrual Basis
during such Quarter and all prior Quarters during the term of this Agreement.
"Net Profit Payment" has the meaning as set forth in Section 3.1.
"New Concession" means a concession issued by the Minister for
Environmental Protection, Natural Resources and Forestry for the Republic of
Poland to Buyer for the exploration and exploitation of Methane Gas and covering
the same lands as Concession 134/93. For the avoidance of doubt, the Parties
acknowledge and agree that the New Concession shall not include nor be deemed to
include, all or any portion of those lands included within what is commonly
known as the Xxxxxxxxx mining area.
"Operating Costs" means all costs and expenses incurred subsequent to the
Effective Time and properly charged to the period for which they are related on
an Accrual Basis (other than Net Profit Payments and Capital Costs), in any way
relating to the New Concession including, but not in any way be limited to,
costs and expenses for:
(a) salaries, wages, benefits, training, travel and relocation of
Buyer's and/or Affiliates' employees whose work is directly attributable to the
New Concession, but only to the extent that such costs are not charged as
Capital Costs;
(b) contract labour. material, supplies, chemicals, catalysts, and
services including professional services;
(c) rent or other lease payments in respect of equipment, plant and
buildings;
(d) telecommunications, power, energy, water, sewage disposal and
utility construction contribution payments;
(e) municipal and regional improvements which are required by a
Governmental Body and which are directly attributable and charged to Buyer or
the New Concession but which are not included as Capital Costs;
(f) maintaining the lease and surface rights;
(g) repairs and maintenance of any capital asset in accordance with
generally accepted accounting principals;
(h) warehouse and handling;
(i) recruiting, training and safety;
(j) power, gas and fuel for producing facilities;
(k) all insurance premiums and deductibles;
(l) all commissions and others of exchanging currency; and
(m) any Losses incurred by Buyer in connection with its operation of
the New Concession.
"Party" means either Buyer, Seller or GlobeGas.
"Permits" means all licenses, authorisations, permits, variances and
similar rights and interests held by Seller and related to Concession 134/93
and/or the Leases, Property and Surface Use Agreements.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, estate,
unincorporated organisation, other business entity or any Governmental Body.
"Phase 1" has the meaning ascribed to it in Section 2.4(b).
"Phase 2" has the meaning ascribed to it in Section 2.4(e).
"Purchase Price" means the sums paid by Buyer to Seller in accordance with
Sections 2.4 and 3.1 below.
"Quarter" means each consecutive three (3) Month period beginning with the
first day of each year.
"Royalties" means all royalties, overriding royalties, production payments
or similar burdens or fees of any kind payable on or out of Methane Gas produced
from the New Concession, but shall not include any Net Profit Payments made by
Buyer pursuant to this Agreement.
"Surface Use Agreements" means any and all agreements pursuant to which
Seller uses or occupies the surface of any lands in any way appertaining,
belonging, affixed or incidental to or used in connection with the ownership or
operation of Concession 134/93 including, without limitation, any tenements,
appurtenances, surface leases, easements, permits, licenses, servitudes, and
rights-of-way, or leases, whether recorded or unrecorded including, but not
limited to, those listed on Schedule 2.
"Tax" means any and all fees (including without limitation, documentation,
license, recording, filing and registration fees), taxes (including without
limitation, production, gross receipts, ad valorem, value added, windfall profit
tax, environmental tax, turnover, sales, use, property (real, personal, tangible
and intangible), stamp, leasing, lease, user, leasing use, excise, franchise,
transfer, heating value, fuel, excess profits, occupational, interest
equalisation, lifting, oil, gas, or mineral production or severance, corporate
income tax, wage taxes, social security charges and other taxes), levies,
imposts, duties, charges or withholdings of any nature whatsoever, imposed by
any Governmental Body or taxing authority thereof, together with any and all
penalties, fines, additions to Tax and interest thereon, whether or not such Tax
shall be existing or hereafter adopted.
"Tcf" means one trillion (1,000,000,000,000) cubic feet.
"Year" means calendar year.
1.2 Rules of Construction. For the purposes of this Agreement.
(a) General. Unless the context otherwise requires (i) "or" is not
exclusive; (ii) words in the singular include the plural and words in the plural
include the singular; (iii) words in the masculine include the feminine and
words in the feminine include the masculine; (iv) any date specified for any
action that is not a Business Day shall be deemed to mean the first Business Day
after such date; and (v) a reference to a Person includes its successors and
assigns.
(b) Parts and Sections. References to Sections are, unless
otherwise specified, to Sections of this Agreement
(c) Schedules. The Schedules attached hereto form part of this
Agreement and shall have the same force and effect as if set forth out in the
body of this Agreement.
(d) Careful Inquiry. Where any statement is qualified by the
expression "so far as the Buyer is aware" or "to the best of the Buyer's
knowledge" or any similar expression, that statement shall be deemed to include
an additional statement that it has been made after due and careful inquiry.
(e) Other Agreements. References herein to any agreement or other
instrument shall, unless the context otherwise requires (or the definition
thereof otherwise specifies), be deemed references to that agreement or
instrument as it may from time to time be changed, amended or extended. There
is not incorporation by reference unless stated.
2. SALE AND PURCHASE
2.1 Sale and Purchase. At Completion, Seller agrees to sell, assign,
transfer and convey the Assets to Buyer, free and clear of all liens,
encumbrances, charges and claims whatsoever, including Tax liens (except for any
Tax liens arising from Taxes attributable to the Tax year in which Completion
occurs as may be accrued but not yet due), charges and claims, and Buyer agrees
to purchase and pay for the Assets, all in accordance with the terms and
conditions of this Agreement.
2.2 Time and Place of Completion. Completion shall take place at 10:00
a.m. on the 13th of June 1997 at Warsaw, Poland or at such other time and place
as the Parties may agree. If Completion has not occurred on or before 31st
December 1997 either Buyer or Seller shall at any time thereafter be entitled to
terminate this Agreement by written notice to the other Party. In such event,
each Party shall have no claims under this Agreement against any other Party,
save in respect of any prior breach of the terms of this Agreement.
2.3 Completion and Transfer of Assets. At Completion, Buyer shall pay to
Seller, in accordance with Section 2.5, the sum set forth in Section 2.4(a) and
Seller shall deliver to Buyer:
(a) all of the Conveyance Documents properly executed by Seller in
substantially the same as those set forth in Schedule 1, in either the English
and/or Polish language;
(b) the consents of all parties to any Lease, Surface Use Agreement
or Permit, consenting to the assignment and transfer of the Assets to Buyer; and
(c) such forms and documents as are required by any Governmental Body
to transfer ownership of the Assets to Buyer.
2.4 Payment of Purchase Price. The "Purchase Price" to be paid by Buyer
to Seller in consideration for the transfer of the Assets from Seller to Buyer,
for Seller's withdrawal from Concession 134/93 and for Seller's grant of the
options pursuant to Section 1.1, shall become due and payable as follows:
(a) At Completion, Buyer shall pay Seller the Polish zloty equivalent
of Five Hundred Thousand U.S. Dollars ($500,000.00) subject to any reductions
for sums which Buyer is entitled to deduct therefrom in accordance with the
terms of this Agreement.
(b) After Completion, Buyer will conduct an initial study program
defined as "Phase 1" which will include, inter alia, the drilling of core holes
at locations on the New Concession as determined by Buyer at its sole discretion
for the purpose of acquiring gas saturation and other data regarding the New
Concession. During Phase 1, Buyer shall carry out operations on the New
Concession in accordance with the provisions of Section 7.2. Phase 1 shall be
completed by Buyer within eighteen (18) months after Completion. Upon notice by
Buyer that Phase 1 has been completed or expiration of said eighteen-month
period, which ever occurs first, Buyer shall give Seller written notice of
whether or not Buyer elects to proceed with Phase 2, as described in Section
2.4(e) below.
(c) If, upon completion of Phase 1 or the expiration of the 18-month
period as provided in (b) above, Buyer elects not to proceed with Phase 2, then
Buyer shall convey those Assets still owned by Buyer to Seller and, to the
extent permitted by Law, Buyer shall assign the New Concession to Seller and
Seller shall accept such conveyance and assignment and this Agreement shall
terminate and each Party shall bear its own costs and expenses in connection
with this Agreement and no Party shall have any further obligations to the other
Parties with respect to this Agreement.
(d) If, upon completion of Phase 1 or expiration of the 18-month
period as provided in (b) above, Buyer elects to proceed with Phase 2 (as
defined below), Buyer shall, within thirty (30) Business Days therefrom, pay to
Seller the Polish zloty equivalent of Two Million Five Hundred Thousand U.S.
dollars ($2,500,000.00) subject to any reductions for sums which Buyer is
entitled to deduct therefrom in accordance with the terms of this Agreement.
(e) "Phase 2" will consist of a production drilling and testing
program designed an performed by Buyer in its sole discretion for the purpose of
obtaining technical information relating to further development of the New
Concession. During Phase 2, Buyer shall carry out operations on the New
Concession in accordance with the provisions of Section 7.2. Upon notice by
Buyer that Phase 2 has been completed or expiration of four (4) years after
Completion, which ever occurs first, Buyer shall give Seller written notice of
whether or not Buyer elects to proceed with development of the New Concession as
described in Section 2.4(h) below.
(f) If, upon completion of Phase 2 or expiration of the four-year
term as provided in (e) above, Buyer elects not to proceed with development of
the New Concession, then Seller shall have the right to acquire from Buyer
those Assets still owned by Buyer, and to the extent permitted by Law, the New
Concession, at a price to be determined by an independent expert chosen upon
agreement of Buyer and Seller, provided that if Buyer and Seller cannot agree
upon an expert one shall be appointed by the President of the Institute of
Petroleum in London, England. The cost of the independent expert shall be paid
by Seller. If Seller elects to acquire the remaining Assets and, to the extent
permitted by Law, the New Concession at the determined price, Seller shall give
Buyer notice of such election within fifteen (15) Business Days after such price
is determined and in which case Buyer and Seller shall proceed in a timely
manner to complete the transfer and sale of the remaining Assets and, and to the
extent permitted by Law, the New Concession . Upon the completion of such a
sale and transfer or, if Seller elects not to acquire the remaining Assets and
New Concession at the determined price, then this Agreement shall terminate and
each Party shall bear its own costs and expenses in connection with this
Agreement and no Party shall have any further obligations to the other Parties
with respect to this Agreement and Buyer shall be free to deal with the
remaining Assets and New Concession as it sees fit.
(g) If, upon completion of Phase 2 or expiration of the four-year
period as provided in (e) above, Buyer elects to proceed with further
development of the New Concession, then Buyer shall, within thirty (30) Business
Days therefrom, pay to Seller the Polish zloty equivalent of Two Million Five
Hundred Thousand Dollars ($2,500,000.00), subject to any reductions for sums
which Buyer is entitled to deduct therefrom in accordance with the terms of this
Agreement and the provisions of Section 3 shall apply.
(h) If Buyer elects to proceed with further development of the New
Concession pursuant to Section 2.4(g), the method, manner, timing and extent of
any and all such further development shall be a Buyer's sole discretion and
Buyer shall not be under any obligation whatsoever, express or implied, to
develop the New Concession and/or product and market any Methane Gas therefrom
for the benefit of Seller.
(i) If, at any time after it has elected to proceed with development
pursuant to Section 2.4(g), Buyer determines in its sole discretion that it is
no longer in Buyer's best interest to proceed with development of the New
Concession, Buyer may withdraw from the New Concession or transfer the New
Concession and the remaining Assets to any third Person subject to the
following:
(1) If Buyer elects to withdraw from the New Concession, then
Buyer shall give notice of such election to Seller together with an interim
report containing the same information as set forth in Section 3.8 for the
period from the last annual report to the date of such notice and Seller shall
have the right to acquire the remaining Assets and, to the extent permitted by
Law, the New Concession on the same terms as provided for in Section 2.4(f).
(2) If Buyer elects to sell and transfer, to the extent
permitted by Law, the New Concession to a third Person other than an Affiliate
of Buyer, then Buyer shall give notice of such election to Seller together with
an interim report containing the same information as set forth in Section 3.8
for the period from the last annual report to the date of such notice. Within
sixty (60) Business Days after delivery of such notice Seller shall notify Buyer
of whether Seller offers to purchase the remaining Assets and the New Concession
and the price which Seller is willing to pay in consideration therefor. Buyer
shall notify Seller within fifteen (15) Business Days following receipt of such
notice from Seller of whether Buyer accepts Seller's offer. If Buyer accepts
Seller's offer, the respective Parties shall proceed to complete such sale and
transfer in a timely manner. If Buyer elects not to accept Seller's offer then
Buyer may proceed to sell and transfer the remaining Assets and the New
Concession to a third Person; provided that any such sell and transfer to a
third Person shall not be for less value than that offered by Seller, provided,
however, that if all or part of the value offered by a third Person consists of
consideration other than cash, Buyer shall have sole discretion to determine
which offer is of greater value. Any such transfer of the New Concession to any
third Person shall be made subject to the rights of Seller to receive the Net
Profit Payments provided for in this Agreement.
(j) If, pursuant to any of the foregoing, Buyer transfers the Assets
and/or the New Concession to Seller, Seller hereby agrees to assume any and all
Losses of whatever nature relating to the Assets and the New Concession and
Seller agrees to fully and promptly indemnify and hold harmless Buyer and its
respective Affiliates and their respective directors, officers and employees
from all Losses made against or incurred by the Buyer or its Affiliates arising
from or in any way related to the Assets or the New Concession, regardless of
whether such Loss relates to the ownership and operation of the Assets or the
New Concession before or after the effective date of any such transfer.
2.5 Method of Payment. Any amounts payable pursuant to the terms of this
Agreement shall be payable in immediately available funds by means of a wire
transfer to an account designated in writing by Seller or Buyer, as the case may
be.
2.6 Currency. All payments made under the terms of this Agreement shall
be made in Polish zloty or any other currency which is legally adopted for use
in the Republic of Poland in place of or in addition to the Polish zloty. Any
sums expressed in any other currency shall be converted into Polish zloty or any
other legally adopted currency at the average exchange rate of the National Bank
of Poland applicable for the date of the invoice for such payment (if no such
rate is available, then the Parties shall use the current legal market rate).
2.7 Taxes. The Purchase Price does not include any Taxes (including any
value added Taxes) which arise from or related to or which are imposed in
connection with or as a result of the sale and transfer of the Assets and the
payment of the Purchase Price, including the Net Profit Payments. Seller
undertakes and agrees to be solely responsible for and to pay and bear any and
all such Taxes as and when the same become due. Furthermore, if no evidence has
been given by the Seller to the satisfaction of the Buyer that the amount of any
such Tax has been paid to the Tax authorities and accepted by them, then the
Buyer may, upon notice to Seller, withhold the amount of any such Taxes from any
payments made to Seller pursuant to the terms of this Agreement and remit any
amounts so withheld to the applicable taxing authority. Buyer may also withhold
any Taxes from payment made to Seller hereunder, when the Assets and the payment
of part or all of the Purchase Price, the non-recoverable portion of any such
VAT payable by the Buyer will be deducted from the Purchase Price to be paid to
Seller hereunder.
3. NET PROFIT PAYMENTS
3.1 Net Profit Payments. If Buyer proceeds with further development of
the New Concession in accordance with Section 2.4(g). Buyer agrees to pay to
Seller on a Quarterly basis, a "Net Profit Payment" consisting of the following
percentage shares of all Net Profit from time to time during the term of this
Agreement, subject to any reduction for sums which Buyer is entitled to deduct
therefrom in accordance with the terms of this Agreement.
(a) fourteen percent (14%) of the Net Profit during the period
beginning with the first sale and delivery of Methane Gas production from the
New Concession and ending when the cumulative Methane Gas sold and delivered
from the New Concession reaches five hundred (500) Bcf;
(b) sixteen percent (16%) of the Net Profit during the period
beginning when the cumulative Methane Gas sold and delivered from the New
Concession reaches five hundred (500) Bcf and ending when the cumulative Methane
Gas sold and delivered from the New Concession reaches one (1) Tcf;
(c) eighteen percent (18%) of the Net Profit during the period
beginning when the cumulative Methane Gas sold and delivered from the New
Concession reaches one (1) Tcf and ending when the cumulative Methane Gas sold
and delivered from the New Concession reaches Two (2) Tcf; and
(d) twenty percent (20%) of the Net Profit during the period
beginning when the cumulative Methane Gas sold and delivered from the New
Concession reaches Two (2) Tcf and ending upon the earlier of (i) cessation of
the sale and delivery of Methane Gas from the New Concession, or (ii)
termination, expiration, or relinquishment of the New Concession by Buyer.
3.2 Payment of Net Profit Payments. Payments of the Net Profit Payments
to Seller shall be made on or within two (2) Months after the end of each
Quarter. The amount of the Net Profit Payment which is made each Quarter shall
be equal to the applicable percentage share, as set out in Section 3.1(a)
through (d) above, of the Net Profit to the end of the Quarter for which the
calculation is being made, less the sum of all Net Profit Payments which have
been made during the term of this Agreement to the end of the immediately
preceding Quarter. Provided, however, that Seller shall have no obligation to
pay any amount to or reimburse Buyer in the event that there is no Net Profit
for any Quarter or Buyer incurs an operating loss during any Quarter during the
term of this Agreement; and provided further that, for the avoidance of doubt,
nothing in the preceding sentence shall be construed to prohibit Buyer from
carrying over any operating loss from any Quarter in accordance with the
definition of Net Profit set forth in Section 1.1 above.
3.3 Calculation of Gross Revenue. In determining the amount of Gross
Revenue in any circumstances, the following rules and principals shall apply:
(a) in the event any Methane Gas is sold and delivered from the New
Concession by Buyer to an Affiliate of Buyer, such Methane Gas will be deemed to
have been sold to such Affiliate at the greater of the actual sales price for
such Methane Gas and the Fair Market Value of such Methane Gas, but solely and
exclusively for the purpose of calculating Net Profit under this Agreement;
(b) no revenue shall be attributed to, nor shall Buyer be deemed to
have received any revenue for, any Methane Gas production resulting from, or
incidental to, any core hole drilling, production tests or pilot projects or for
any Methane Gas used by Buyer for the purpose of enhancing production, reservoir
maintenance, pressure maintenance or as fuel for operations on the New
Concession; and
(c) Gross Revenue shall include the proceeds from the sale of any
asset of Buyer, the cost of which was included as a Capital Cost, except where:
(i) the asset is included in a sale of all or substantially all
of the assets of Buyer;
(ii) the asset is sold to Seller; or
(iii) the sale involves a Controlling Interest in Buyer.
3.4 Calculation of Costs. In determining the amount of Capital Costs or
Operating Costs in any circumstances, the following rules and principals shall
apply:
(a) If any Capital Costs or Operating Costs are incurred in non-arm's
length transactions (such as, but not limited to, transactions between Buyer and
any of its Affiliates), the costs and expenses which shall be chargeable shall
be limited to the lesser of (i) the actual direct costs and expenses and (ii)
the Fair Market Value thereof.
(b) If any cost or expense which is chargeable as a Capital Cost or
Operating Cost is incurred in part for the benefit of the New Concession, and in
part for the benefit of any other activity or undertaking of Buyer (including,
without limitation, pursuant to a cost-sharing arrangement entered into by Buyer
with any other person), there shall be a fair and equitable allocation and
sharing made of such cost or expenses as between the New Concession and such
other activity or undertaking.
(c) An estimate of Abandonment Costs shall be made by Buyer prior to
the date on which Methane Gas is first produced, sold and delivered from the New
Concession, and notwithstanding any other provision in this Agreement, such
Abandonment Costs shall be deemed to have been incurred and accrued on the date
on which Methane Gas is first produced, sold and delivered from the New
Concession. Buyer shall have the right, from time to time, to adjust the
estimate of Abandonment Costs to reflect any increase or decrease therein which
Buyer reasonably believes will be incurred as an Abandonment Cost.
(d) There shall be no duplication in charging any costs or expense as
either Capital Costs or Operating Costs.
3.5 Unitisation. If all or any part of the New Concession is from time
to time pooled or unitised with any other lands for the purposes of Methane Gas
production, Buyer shall at all times make a fair and equitable allocation of
costs, expenses, production and revenues as between those attributable to the
New Concession and such other lands, in accordance with good industry practices,
for purposes of calculating the Net Profit Payments and all payments to be made
hereunder.
3.6 Buyer's Discretion. Except as otherwise expressly provided in this
Agreement, the Parties expressly understand and agree that Buyer shall have sole
and unfettered discretion and authority with regard to any and all decisions
relating to the method, manner, timing and extent of any and all development and
operation of the New Concession, the marketing of Methane Gas production from
the New Concession and the relinquishment or termination of the New Concession
and Buyer shall not be under any obligation whatsoever, expressed or implied, to
develop or operate the New Concession, market any Methane Gas production
therefrom or extend or continue to operate the New Concession for the benefit of
Seller. If at any time Buyer determines that it is no longer in Buyer's best
interest to proceed or continue with development or operation of the New
Concession, Buyer may in its sole discretion, subject to the provisions of
Section 2.4(i), release, surrender, terminate or relinquish the New Concession,
in which case this Agreement shall automatically terminate provided that Buyer
does not thereafter obtain any concession or other rights to produce Methane Gas
from the lands covered by the New Concession during the original term of the New
Concession.
3.7 Statements. Buyer shall provide Seller within three (3) Months
following the end of each Year after commencement of production of Methane Gas
from the New Concession, a statement containing the following information:
(a) Capital Costs and Operating Costs to the end of that Year;
(b) Royalties to the end of that Year;
(c) an estimate of Taxes to the end of that Year; and
(d) Gross Revenue to the end of that Year.
Such report shall be certified by a duly authorised representative of Buyer
to be true and correct to the best of his or her knowledge.
3.8 Annual Reports. On a Yearly basis, if so requested by Seller, Buyer
shall either meet with or report in writing to Seller as requested, to advise
Seller with respect to its plans for development of the New Concession. Such
report shall include, but not be limited to: (a) a production forecast (if any);
(b) to the extent not otherwise prohibited by Law, a full and complete copy of
the most recent reserve report filed by Buyer with the Ministry for
Environmental Protection, Natural Resources and Forestry; and (c) anticipated
Capital Costs and Operating Costs (if any) for the forthcoming year. Provided,
however, that any such report shall not in any bind or obligate or be construed
to bind or obligate Buyer to proceed with any such development or to incur any
Capital Costs, Operating Costs, or to achieve production as forecast or
anticipated; provided further, that Seller acknowledges and agrees that Buyer
makes no representation or warranty, express or implied, as to the accuracy,
completeness or qualify any reserve reports provided Seller in accordance with
the foregoing and that any reliance thereon by Seller will be entirely at
Seller's own risk.
3.9 Audits. Once every two Years Seller shall have the right, upon a one
Month written notice, to audit the non-proprietary records of Buyer relating to
the calculation and payment of the Net Profit Payments for the preceding two
Year period. Buyer shall provide representative of Seller with access at all
reasonable times to all of Buyer's records relating to Operating Costs, Capital
Costs, Gross Revenue and Net Profit for and proceeds from the sale and delivery
of Methane Gas produced from the New Concession. Seller shall at all times keep
secret and confidential all records, data, technology and information obtained
as a result of such audits.
3.10 Confidentiality. All information disclosed by Buyer to Seller
hereunder, shall be treated as confidential and shall not be disclosed in whole
or in part by Seller, except as required by reason of any applicable law,
regulation or requirement of any government, governmental authority, or any
stock exchange or with the prior written approval of Buyer (and, if so required
by Buyer, a similar undertaking of confidentiality is obtained).
4. CONDITIONS PRECEDENT
4.1 Conditions for Benefit of Buyer. The obligations of Buyer to
complete the transaction contemplated by this Agreement are subject to the
complete satisfaction, prior to Completion, of each of the following conditions
precedent:
(a) Management Board. Receipt of all necessary approvals of the
respective Management Boards of Buyer and Seller;
(b) Buyer's Receipt of New Concession. The grant by the Minister of
Environmental Protection, Natural Resources and Forestry for the Republic of
Poland to Buyer of a valid mining concession containing terms and conditions
acceptable to Buyer and Seller for the exploration and exploitation of Methane
Gas from the lands covered by the 134/93 Concession;
(c) Buyer's Receipt of a Usufruct. The grant by the Minister of
Environmental Protection, Natural Resources and Forestry for the Republic of
Poland to Buyer of a valid usufruct containing terms and conditions acceptable
to Buyer for the exploration and exploitation of Methane Gas from the lands
covered by the 134/93 Concession;
(d) Seller's Withdrawal. Seller's full and complete withdrawal from
and relinquishment and surrender of Concession 134/93 and any and all rights
thereunder relating to the lands covered thereby;
(e) Cancellation of Concession 134/93. The acceptance of the
withdrawal and relinquishment provided for in Section 4.1(b) and full and
complete cancellation and termination of Concession 134/93 by all Governmental
Bodies having jurisdiction thereof;
(f) Consents, Approvals, Authorisations and Permits. The receipt,
in form satisfactory to Buyer, of all consents, approvals authorisations and
permits, or any amendments or modifications thereto (including the consents and
approvals of all of the local Gmina having jurisdiction over the matter), which
are necessary in order to grant and put in effect the New Concession and to the
transfer of the Assets from Seller to Buyer;
(g) Casualty Loss. No casualty loss of any material Asset which is
not fully insured shall have occurred prior to Completion. If a casualty loss
does occur prior to Completion, Seller shall give Buyer prompt notice thereof
and Buyer shall have the right, at its sole discretion, to do any of the
following: (i) terminate this Agreement without further obligation or liability
by giving written notice to Seller of its intention to do so, (ii) allow Seller
to repair or remediate, or agree to repair or remediate such casualty loss to a
degree which is mutually agreed upon by Seller and Buyer; or (iii) adjust the
Purchase Price by an amount mutually agreed upon by the Parties. If there is a
casualty loss of a material Asset which is fully insured, then Buyer may elect
to accept payment from Seller of all the insurance proceeds paid to Seller as a
result of such loss and proceed with Completion or require Seller to repair or
remediate, or agree to repair to remediate such casualty loss to a degree which
is mutually agreed upon by Seller and Buyer.
(h) Representations and Warranties True at Completion. The
representations and warranties of Seller contained in this Agreement or in any
certificate or document delivered pursuant to the provisions hereof, or in
connection with the transactions contemplated hereby are true and complete when
made, and shall be true and complete on and as of the Completion Date as though
such representations and warranties were made at and as of such date except as
otherwise expressly provided herein.
(i) Compliance with Agreement. On and as of the Completion Date,
Seller shall have performed and complied with all agreement and conditions
required by this Agreement to be performed and complied with prior to or on the
Completion Date.
(j) Conveyance. Seller shall execute, acknowledge and deliver to
Buyer the Conveyance Documents as well as any other forms required by applicable
Laws and such other documents as may be necessary to carry out the purpose of
this Agreement.
(k) Injunction. On the Completion Date, there shall be no
injunction, writ, or preliminary restraining order or any order any nature
issued by a court or other Governmental Body directing that the transaction
provided for herein not be consummated as herein provided or imposing any
conditions on the consummation of the transaction contemplated hereby and no
material proceeding or lawsuit shall have been commenced or threatened by any
Governmental Body or other Person with respect to the transaction contemplated
by this Agreement.
4.2 Conditions for Benefit of Seller. The obligations of Seller to
complete the transaction contemplated by this Agreement are subject to the
complete satisfaction, prior to Completion of each of the following conditions
precedent:
(a) Representations and Warranties True at Completion. The
representations and warranties of Buyer contained in this Agreement or in any
certificate or document delivered pursuant to the provisions hereof, or in
connection with the transactions contemplated hereby, were true and complete
when made, and shall be true and complete on and as of the Completion Date as
though such representations and warranties were made at and as of such date
except as otherwise expressly provided herein.
(b) Compliance with Agreement. On and as of the Completion Date,
Buyer shall have performed and complied with all agreements and conditions
required by this Agreement to be performed and complied with prior to or on the
Completion Date.
(c) Conveyance. Buyer shall execute, acknowledge and deliver to
Seller such documents as may be necessary to carry out the purposes of this
Agreement.
(d) Injunction. On the Completion Date, there shall be no
injunction, writ or preliminary restraining order or any order of any nature
issued by a court or other Governmental Body directing that the transaction
provided for herein not be consummated as herein provided and no proceeding or
lawsuit shall have been commenced or threatened by any Governmental Body or
other Person with respect to the transaction contemplated by this Agreement.
5. ALLOCATIONS OF PURCHASE PRICE AND OBLIGATIONS
5.1 Allocation of Purchase Price. The Purchase Price shall be allocated
by the Parties' mutual agreement in the amounts set forth on Schedule 5, which
allocation will represent a reasonable determination in good faith of the fair
market value of the respective Assets. Buyer and Seller agree that they shall
use these allocations to prepare, on a consistent basis, and file as required,
any Tax returns.
5.2 Allocation of Obligations. Seller shall be responsible for all
rentals, contractual payments, operating costs, expenses, fees, vendor and
contractor invoices, billing, taxes, charges, assessments and other indebtedness
and obligations arising from or relating to: (a) the ownership, operation, use
or maintenance of or otherwise relating to the Assets prior to or on the
Effective Time; (b) the ownership, operation, use or maintenance of or otherwise
relating to any property (whether real or movable) which is not specifically
included in the Assets; and (c) the ownership, operation, use or maintenance of
or otherwise relating to Concession 134/93 (collectively the "Retained
Liabilities"). Buyer shall be responsible for all such payments and obligations
arising from or relating to the ownership, operation, use or maintenance of or
otherwise relating to the Assets after the Effective Time.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of Seller. Seller represents and
warrants to Buyer that:
(a) Organisations and Standing of Seller. Seller has been duly
organised and is validly existing in good standing under the laws of Poland.
(b) Authority. Seller has the corporate power and authority to
enter into and perform this Agreement. The execution, delivery and performance
of this Agreement, including the sale and delivery of the Assets, have been duly
authorised by all requisite corporate and/or shareholder action and this
Agreement has been duly executed and delivered by Seller.
(c) Validity of Agreement. The Agreement is a legal, valid and
binding obligation of Seller and is enforceable against Seller in accordance
with the terms of this Agreement, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general. The enforceability of Seller's obligations under
this Agreement is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(d) No Violation. The execution and delivery of this Agreement, the
performance by Seller of the terms of this Agreement and the sale of the Assets
do not conflict with or result in a violation of the Company Documents of Seller
or of any agreement, instrument, order writ, judgement or decree to which Seller
is a party or is subject.
(e) No Consent Required. Except as provided in Section 4, no
approval, authorisation, consent, permit or other action by, or filing with, any
Governmental Body, is required in connection with the execution, delivery and
performance by Seller of this Agreement and the sale of the Assets.
(f) Title to Assets. That Seller has good and marketable title to
the Assets and that none of the Assets are subject to any mortgage, deed of
trust, pledge, lien security interest, encumbrance, claim, charge or material
adverse interest of any kind or character. That as of the Effective Time, none
of the Assets will be subject to any mortgage, deed of trust, pledge, lien
security interest, encumbrance, claim, charge or material adverse interest of
any kind or character.
(g) Environmental Conditions or Claims. All known material
Environmental Conditions affecting the Assets or Concession 134/93 have been
disclosed to Buyer and, to the best of Seller's knowledge, there are no pending
material Environmental Claims. Seller is not aware of any actual or potential
environment liability relating to the Assets or Concession 134/93.
6.2 Representations and Warranties of GlobeGas. GlobeGas represents and
warrants to Buyer that:
(a) Organisation and Standing of GlobeGas. GlobeGas has been duly
organised and is validly existing in good standing under the laws of The
Netherlands.
(b) Authority. GlobeGas has the corporate power and authority to
enter into and perform this Agreement. The execution, delivery and performance
of this Agreement, including the granting of the options pursuant to Section 11,
have been duly authorised by all requisite corporate and/or shareholder action
and this Agreement has been duly executed and delivered by GlobeGas.
(c) Validity of Agreement. The Agreement is a legal, valid and
binding obligation of GlobeGas and is enforceable against GlobeGas in accordance
with the terms of this Agreement, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general. The enforceability of GlobeGas' obligations under
this Agreement is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(d) No Violation. The execution and delivery of this Agreement, the
performance by GlobeGas of the terms of this Agreement and the granting of the
options pursuant to Section 11 do not conflict with or result in a violation of
the Company Documents of GlobeGas or of any agreement, instrument, order, writ,
judgement or decree to which GlobeGas is a party or is subject.
(e) No Consent Required. No approval, authorisation, consent,
permit or other action by, or filing with, any Governmental Body, is required in
connection with the execution, delivery and performance by GlobeGas of this
Agreement and the granting of the options pursuant to Section 11.
(f) Title to Assets. That GlobeGas has good and marketable title to
the equity ownership interests in MMJ and MMR which are subject by the options
granted pursuant to Section 11 and that none of such interests are subject to
any mortgage, deed of trust, pledge, lien security interest, encumbrance, claim,
charge or material adverse interest of any kind or character which would
interfere with, impair or diminish the option rights of Buyer.
6.3 Buyer. Buyer represents and warrants to Seller that:
(a) Organisation and Standing of Buyer. Buyer has been duly
organised and is validly existing in good standing under the laws of Poland.
(b) Authority. Buyer has the corporate power and authority to enter
into and perform this Agreement and to purchase the Assets. The execution,
delivery and performance of this Agreement, including the purchase of the
Assets, have been duly authorised by all requisite corporate and/or shareholder
action and this Agreement has been duly executed and delivered by Buyer.
(c) Validity of Agreement. The Agreement is a valid and binding
obligation of Buyer and is enforceable against Buyer in accordance with the
terms of this Agreement, except as enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
in general. The enforceability of Buyer's obligations under this Agreement is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(d) No Violation. The execution and delivery of this Agreement, the
performance by Buyer of the terms of this Agreement and the purchase of the
Assets do not conflict with or result in a violation of the Company Documents of
Buyer or of any agreement, instrument, order, writ, judgement or decree to which
Buyer is a party or is subject.
(e) No Consent Required. Except as provided in Section 4, no
approval, authorisation or other action by, or filing with, any governmental
authority, is required in connection with the execution, delivery and
performance by Buyer of this Agreement and the purchase of the Assets.
6.4 Representations and Warranties at Completion. Seller (with respect
to the representations and warranties set forth in Section 6.1), GlobeGas (with
respect to the representations and warranties set forth in Section 6.2) and
Buyer (with respect to the representations and warranties set forth in Section
6.3), each respectively represents, warrants and undertakes that such
representations and warranties shall be true and correct at the Completion Date
as if they had been repeated at such date.
7. COVENANTS
7.1 Covenants of Seller. Seller convenants with Buyer as follows:
(a) Withdrawal. Seller shall take all steps necessary to withdraw
from Concession 134/93 and shall cooperate fully in assisting Buyer in the
acquisition of the New Concession and Usufruct.
(b) Disclosures. The representation and warranties by Seller in
this Agreement and the statements contained in the documents (including
schedules), certificates and other writings furnished by Seller to Buyer
pursuant to this Agreement, when considered as a whole, do not and will contain
any untrue statement of a material fact and do not and will not omit to state
any material fact necessary to make the statements herein or therein not
misleading.
(c) Further Disclosure. The Seller shall forthwith disclose in
writing to the Buyer any matter or thing which may arise or become know to the
Seller after the date hereof and before Completion which is inconsistent with
any of the representations or warranties or which might make any of them
inaccurate or misleading if they were given at any and all times from the date
hereof down to Completion or which is material to be known to a purchase of the
Assets of the holder of the New Concession.
(d) Conduct of Business. From the date of this Agreement through
the Completion, Seller will not, without the prior written consent of Buyer,
sell, transfer mortgage, pledge or subject to lien, charge or any other
encumbrances, any of the Assets.
7.2 Convenants of Buyer. Buyer convenants with Seller that, except as
otherwise expressly provided for herein, during the period from Completion Date
until the completion or termination of Phase 2:
(a) Operation of New Concession. Buyer shall carry out operations
on the New Concession in accordance with the terms and conditions of the New
Concession and all laws and regulations applicable thereto so as not to lose any
rights or cause the imposition of any restrictions on the rights of Buyer under
the New Concession.
(b) Filings. Buyer shall make all necessary filings and take any
other action reasonably necessary to comply with and maintain the New
Concession.
(c) Payment of Royalties. Buyer shall timely pay all Royalties due
under the terms of the New Concession and Buyer agrees not to create any
Royalties in addition to those set out in the New Concession as originally
granted to Buyer.
(d) Liens and Encumbrances. Except for any contracts for the sale
and purchase of Methane Gas produced from the New Concession or agreements
entered into between Buyer and any third parties for the provision of financing
relating to the New Concession, Buyer shall not incur or create any debt or
obligation that is a lien or encumbrance against the New Concession or the
Assets or the production, revenue, income or profits from the new Concession.
(e) Environmental Conditions. Buyer shall conduct its activities in
a reasonable and prudent manner so as not to create any Environmental Condition
or Environmental Claim with relation to the New Concession or the Assets.
7.3 Convenants of Seller and Buyer. Seller and Buyer convenant to each
other as follows:
(a) Compliance with Conditions Precedent. Each Party shall use its
best efforts to cause the conditions precedent set forth in Section 4,
applicable to such Party, to be fulfilled and satisfied as soon as practicable.
(b) Grants, Consents, Approvals, Authorisations and Permits. With
regard to grants, consents, approvals, authorisations and permits necessary to
effect the transfer of the Assets from Seller to Buyer, Seller's withdrawal from
Concession 134/93 and Buyer's receipt of the New Concession, the parties agree
that:
(i) Buyer and Seller shall co-operated with one another in
determining what filings are required to be made or consents, approvals, permits
or authorisations are required to be obtained under any Laws in order to effect
the transfer of the Assets from Seller to Buyer, Sellers' withdrawal from
Concession 134/93 and Buyer's receipt of the New Concession; and
(ii) Buyer and Seller shall co-operate with one another in making
any such filing, furnishing information required in connection therewith and
seeking timely to obtain any such consents, permits, authorisations, approvals
or waivers.
(c) Further Assistance. Each Party shall, from time to time at the
request of the other, and without further consideration, execute and deliver
such other instruments of sale, transfer, conveyance, assignment, clarification
and termination and take such other action as the party making the request may
require to effectuate the intentions of the Parties, including those required to
sell, transfer, convey and assign to and vest in Buyer, and to place Buyer in
possession of the Assets and to have the New Concession granted to Buyer.
Seller intends to convey the Assets at Completion; however, in the event it is
determined after Completion that: (i) any part of the Assets was not in fact
conveyed to Buyer, then Seller shall take all action necessary to correctly
convey the Assets or any part of the Assets to Buyer.
(d) Files Transfer. All files, records, books, contracts, returns
and documents (including originals and copies) relating to the Assets and
Concession 134/93 which are in the possession of Seller shall be delivered,
using reasonable efforts, to Buyer within thirty (30) Business Days after
Completion.
8. TAXES
8.1 Payment of Taxes. With regard to the payment of Taxes related to or
arising from the ownership, operation and sale of the Assets, Seller and Buyer
agree that:
(a) Seller's Payment Obligations. Seller shall bear and pay: (i)
any Taxes arising from or relating to the ownership and operation of the Assets
prior to and including the Completion Date; (ii) any Taxes arising from or
relating to the ownership an operation of Concession 134/93; and (iii) any Taxes
arising from or relating to the sale and transfer of the Assets and the payment
of the Purchase Price.
(b) Seller's Indemnity Obligation. Without in any way limiting the
rights of Buyer under Section 10.1, Seller shall indemnify Buyer against any Tax
liability assumed by Seller pursuant to Section 8.1(a). At Buyer's option,
Seller shall compensate Buyer for the amount of any such indemnity by:
(i) a reduction in the Purchase Price by immediate payment to
Buyer of the amount of any such indemnity;
(ii) a reduction in the Purchase Price by deducting the amount of
any such indemnity from any payments of the Purchase Price to be made by Buyer
to Seller; or
(iii) any other way which will put Buyer in the same
financial position that it would have been in had such Tax not been imposed.
(c) Buyer's Obligations. Buyer shall bear and pay: (i) any Taxes
arising from or relating to the ownership and operation of the Assets after the
Completion Date; and (ii) any Taxes arising from or relating to the ownership
and operation of the New Concession.
8.2 Assistance Regarding Taxes. Seller shall provide Buyer with such
relevant Tax returns and supporting information regarding the Assets, including
access to such employees, books and records as may be reasonably requested to
the extent it is reasonably necessary for the preparation of any Tax returns,
any audit, or any judicial or administrative proceeding or determination and
shall provide Buyer with such assistance as they may reasonably request, at no
cost to Buyer, in connection with such Tax matters. Buyer shall provide Seller
with such relevant Tax returns and supporting information regarding the Assets
to the extent it is reasonably necessary for the preparation of any Tax returns,
any audit, or any judicial or administrative proceeding or determination for any
periods beginning prior to the Completion Date, and shall provide Seller with
such assistance, including access to employees, books and records, as Seller may
reasonably request, at no cost to Seller, in connection with such Tax matters.
All Parties agree to keep any such Tax returns and supporting information
confidential.
9. MATERIAL DEFECTS
9.1 Access to Assets and Information. Through the Completion Date,
Seller will afford or will cause to be afforded to the officers, employees,
accountants, contractors, agents and other representatives of Buyer full and
free access to the properties and records pertaining to the Assets and
Concession 134/93, wherever situated, (including Tax records and Tax reports and
Tax litigation files as they related directly thereto) during normal working
hours in order that Buyer may have full opportunity to make such investigations
as it shall desire of the affairs and financial status of the Assets.
9.2 Notice of Material Defects. On or before ten (10) Business Days
before the Completion Date, Buyer shall give Seller written notice of any
Material Defects which must be remedied prior to Completion. If any such
Material Defect cannot be remedied prior to Completion, then Buyer may, at its
sole election: (a) terminate this Agreement without further obligation or
liability to Seller; (b) offer to acquire the Assets, but at a reduced price,
which offer Seller may accept or reject; or (c) acquire the Assets without an
adjustment to the Purchase Price.
10. INDEMNITY
10.1 Seller's Indemnification. On and after the Completion, Seller shall
fully and promptly defend, indemnify and hold harmless Buyer and its Affiliates
and their respective directors, officers and employees from all claims, demands,
actions, suits or Losses made against or incurred by the Buyer or its Affiliates
or their respective directors, officers and employees arising out of any breach
of any representation, warranty or convenant of Seller herein, the non-
fulfillment of any agreement, obligation or undertaking of Seller herein or any
Retained Liabilities.
10.2 Buyer's Indemnification. On and after the Completion, Buyer shall,
subject to 2.4(j), fully and promptly defend, indemnify and hold harmless Seller
and its Affiliates and their respective directors, officers and employees from
all claims, demands actions, suits or Losses made against or incurred by the
Seller or its Affiliates or their respective directors, officers and employees
arising out of any breach of any representation, warranty or covenant of Buyer
herein or the non-fulfillment of any agreement, obligation or undertaking of
Buyer herein.
10.3 Notice of Claims. Promptly following receipt by Buyer or Seller of
any claim, determination, suit, action or proceeding (an "Action") or the
sustaining of any Loss, which is subject to the provisions of Section 10.1 or
10.2, such Party shall give written notice of such Action or Loss to the other
Parties hereto, accompanied by copies of any written documentation with respect
thereto received by the notifying Party and stating the basis upon which
indemnification is being sought pursuant to this Agreement. Such notice shall
constitute a claim for indemnification hereunder (the "Claim").
10.4 Defence of Action. The Party required to provide indemnification
provided under Section 10.1 or 10.2 (the "Indemnifying Party") shall have the
right at its option, to compromise or defend, at its own expense and with its
own counsel, any such Action. The Party hereto (the "Indemnified Party") shall
have the right, at its option, to participate in the settlement or defence of
any such Action, with its own counsel and at its own expense, but the
Indemnifying Party shall have the right to control such settlement or defence.
The parties agree to co-operate in any such defence or settlement and to give
each other reasonable access to all information relevant thereto. The Parties
will similarly co-operate in the prosecution of any claim or lawsuit against any
third Person. In the event that the Indemnifying Party fails to notify the
Indemnified Party of its intent to take any action within fifteen (15) Business
Days after receipt of a Claim, the Indemnified Party without waiving any rights
to indemnification hereunder may defend such Action and shall have the right to
enter into any good faith settlement thereof without the prior written consent
from the Indemnifying Party.
10.5 Damages for Breach of Representation or Warranties. Without
restricting the rights of an Indemnified Party or the ability of an Indemnified
Party to claim damages on any basis in the event that any of the warranties,
representations or covenants of an Indemnifying Party set forth herein is broken
or proves to be untrue or misleading, the Indemnifying Party shall, on demand,
pay to the Indemnified Party:
(a) the amount necessary to put the Indemnified Party into the
position which would have existed if the warranty, representation or covenant
had not been broken and had been true and not misleading; and
(b) all costs and expenses incurred by the Indemnified Party directly
or indirectly, as a result of such breach.
10.6 Rights to Withhold. In the event the Indemnifying party fails to
make any such payments, the Indemnified Party shall be entitled to withhold the
amounts set forth in (a) and (b) above from any amounts becoming due and payable
to the Indemnifying Party under the terms of this Agreement.
10.7 Consequential Damages. Notwithstanding the foregoing, no party shall
be entitled to recover any consequential damages from any other Party based upon
the breach or non-performance of the terms of this Agreement.
11. OPTIONS TO ACQUIRE INTERESTS IN MMJ AND MMR
11.1 Grant of Options. GlobeGas hereby grants to Buyer the options to
acquire to the extent and manner permitted by law, at the price determined in
accordance with Section 11.2, the percentage interest of equity ownership in
each of MMJ and MMR as necessary to vest Buyer with a Controlling Interest in
each of MMJ and MMR. This grant consists of two (2) options, one with regard to
each of MMJ and MMR and each of which can be exercised independently of the
other and at Buyer's sole discretion. These options shall remain in effect for
a period of three (3) Years from the date on which Buyer gives Seller notice
that Buyer elects to proceed with further development of the New Concession in
accordance with Section 2.4(g).
11.2 Acquisition Price. The price at which Buyer shall be entitled to
acquire the interests in MMJ and MMR as described in Section 11.1 shall be
determined by an independent third party who has expertise in the valuation of
oil and gas properties and who is acceptable to both Parties. If the Parties
are unable to agree upon the selection of an independent third party expert,
than one shall be appointed by the President of the Institutes of Petroleum in
London, England.
11.3 Sale of Interests in MMJ or MMR. Notwithstanding Sections 11.1 and
11.2, GlobeGas shall, during the term of this Agreement, have the right to sell
part of its ownership interest in MMJ and/or MMR or participate in joint
ventures or similar arrangements, but only to the extent that GlobeGas retains a
Controlling Interest, which Controlling Interests shall remain subject to the
option rights of Buyer as set forth in Sections 11.1 and 11.2.
11.4 Maintenance of MMJ and MMR. Subject to Section 11.3, GlobeGas
convenants with Buyer that during the period from the date of this Agreement
until the end of the three (3) year option period provided for in Section 11.1:
(a) Operation of MMJ and MMR. Operations on the concessions owned
by MMJ and MMR shall be carried out in accordance with the terms and conditions
of such concessions and all applicable laws and regulations so as not to lose
any rights or cause the imposition of any restrictions on the rights of MMJ or
MMR under those concessions.
(b) Transfer of Interest. Neither GlobeGas, MMJ nor MMR shall,
without the consent of Buyer: (i) transfer any interest in the respective
concessions or respective assets of MMJ or MMR; (ii) permit any lien, charge,
claim or encumbrance to be imposed on the respective concessions and/or assets
of MMJ or MMR, which would interfere with, impair or diminish the option rights
of Buyer; or (iii) restrict the rights of GlobeGas to transfer the interests in
MMJ or MMR in accordance with this Section 11.
(c) Filings. GlobeGas shall cause MMJ and/or MMR to make all
necessary filings and take any other action reasonably necessary to comply with
and maintain the concessions held by MMJ and MMR.
(d) Payment of Royalties. GlobeGas shall cause MMJ and MMR to
timely pay all Royalties due under the terms of their respective concessions and
not create any Royalties in addition to those set out in their respective
concessions as originally granted to MMJ or MMR.
(e) Liens and Encumbrances. GlobeGas, MMJ and MMR shall not incur
or create any debt or obligation that is a lien or encumbrance against the
respective concessions or assets of MMJ or MMR or the production, revenue,
income or profits from those Concessions.
(f) Environmental Conditions. GlobeGas shall see that MMJ and MMR
shall conduct their activities in a reasonable and prudent manner so as not to
create any Environments Condition or Environmental Claim with relation to their
respective Concessions or assets.
(g) Cooperation. In the event that Buyer elects to have GlobeGas
transfer the interests in MMJ and/or MMR to Buyer in accordance with this
Section 11, GlobeGas shall cooperate fully in obtaining any necessary consents
of any Government Bodies with respect to such transfer and shall cooperate in
preparing, signing, delivering and filing any and all conveyance documents
reasonably requested by Buyer.
12. ASSIGNMENT
12.1 Assignment Prior to Completion. Prior to Completion, no Party may
assign, directly or indirectly to any other Person, any of its rights and
obligations created hereunder without the prior written consent of the other
Parties; provided, however, that prior to Completion, Buyer may, without such
consent, assign and delegate all of its rights and obligations hereunder to an
Affiliate of Buyer in which instance Buyer shall be released and discharged
from each of its liabilities, obligations and duties hereunder and such
Affiliate shall become a party to this Agreement and be entitled to the benefits
and rights and subject to the liabilities, obligations and duties hereunder in
place of Buyer.
12.2 Assignment by Seller After Completion. If, after Completion, Seller
or any of its assigned or successors in interest receives a bona fide offer from
any third Person other than an Affiliate of Seller, to acquire all or part of
Seller's right, title and interest under this Agreement, Seller shall give
written notice thereof to Buyer stating the price offered for such interest and
all other terms and conditions of such offer. Within sixty (60) Business Days
following delivery of such notice, Buyer shall notify Seller of whether Buyer
elects to purchase Seller's interest for the same price and on the same terms
and conditions as set out in Seller's notice. Upon such election by Buyer, the
Parties shall proceed to complete such sale and transfer in a timely manner. If
Seller elects not to accept Buyer's offer then Seller may proceed to sell and
transfer such interest to the third Person from whom such offer was received,
but only for the price and on the terms and conditions set forth in Seller's
notice.
12.3 Assignment by Buyer After Completion. Subject to the rights of
Seller under Sections 2.4(c), 2.4(f) and 2.4(i), Buyer may assign, directly or
indirectly to any other Person, any of its rights and obligations created
hereunder without the prior written consent of the other Parties in which
instance Buyer shall be released and discharged from each of its liabilities
obligations and duties hereunder and such assignee shall become a party to this
Agreement and be entitled to the benefits and rights and subject to the
liabilities, obligations and duties hereunder in place of Buyer.
13. MISCELLANEOUS
13.1 Notices. All notices, consents, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or delivered if (a) delivered by hand, (b) delivered by a recognised
overnight commercial courier (receipt requested), or (c) sent by facsimile (with
receipt confirmed), provided that a copy if promptly thereafter mailed by
registered mail to the Party as follows (or to such other address as any Party
shall have last designated by fifteen (15) Business Days' notice to the other
Parties):
If to Seller: Pol-Tex Methane Sp. z.o.o.
xx. Xxxxxxxxxxx 00
00-000 Xxxxxx
Xxxxxx
Attention: Xxxx X. Andraczke
Telephone: 00-000-000
Facsimile: 00-000-000
If to GlobeGas: GlobeGas B.V.
c/o First Alliance Trust
Herangracht 466
NL - 1017 CA Amsterdam
The Netherlands
Attention: Wolfgang Rauball
Telephone:
Facsimile:
With copy to: Xxxxxx X. Xxxxx
Xxxxxx Xxxxx, Xxxx Xxx Xxxxx
00 Xxxx Xxxxxxxx (300 South)
Salt Xxxx Xxxx, Xxxx 00000-0000
X.X.X.
Telephone: 0-000-000-0000
Facsimile: 1-801-531-7091
If to Buyer: Texaco Slask Sp. z.o.o.
xx. X. Xxxxxxxxxxxx 00
00 - 000
Xxxxxx
Xxxxxx
Attention: Xxxxxxx Xx Xxxxxx
Telephone: 00-00-000-0000
Facsimile: 00-00-000-0000
With copy to: Texaco Britain Limited
0 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0 XX
Xxxxxx Xxxxxxx
Attention: General Manager,
Asset Development
Telephone: 00-000-000-0000
Facsimile: 00-000-000-0000
13.2 Modification. This Agreement and the Exhibits and Schedules, shall
not be modified except by an instrument in writing signed by or on behalf of all
of the Parties.
13.3 GlobeGas. The parties acknowledge and agree that GlobeGas is party
to this Agreement for the sole purpose of conveying to Buyer the respective
ownership interests in MMJ and/or MMR in accordance with the options rights
granted to Seller in Section 11 and that GlobeGas shall have no other right,
obligation or liability arising under the terms of this Agreement except as set
forth in Sections 6.2 and 11.
13.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
13.5 Invalidity. If any of the provisions of this Agreement including the
Schedules and Exhibits, are held invalid or unenforceable, such invalidity or
unenforceability shall not affect in any way the validity or enforceability of
any other provision of this Agreement. In the event any provision is held
invalid or unenforceable, the parties shall attempt to agree on a valid or
enforceable provision which shall be a reasonable substitute for such invalid or
unenforceable provision in light of the tenor of this Agreement and, on so
agreeing, shall incorporate such substitute provision in this Agreement.
13.6 Entire Agreement and Construction. This Agreement contains the
entire agreement between the Parties with respect to the transactions
contemplated hereby and all prior understandings and agreements shall merge
herein. There are no additional terms, whether consistent or inconsistent, oral
or written, which are intended to be part of the Parties' understandings which
have not been incorporated into this Agreement. The Parties agree that they
have jointly participated in the drafting and preparation of this Agreement and
that the language of this Agreement shall be construed as a whole according to
its fair meaning and not strictly for or against any of the Parties hereto.
13.7 Expenses. Except as otherwise expressly provided herein, each Party
shall bear its fees, costs and expenses in connection with the transactions
contemplated herein, including, without limitation, all legal and accounting
fees and disbursements and fees and expenses of other advisors retained by such
Party.
13.8 Recording. Seller shall be responsible for recording of the
Conveyance Documents and shall promptly furnish Buyer with either the recorded
originals or with the recording information, dependent upon whether the
applicable Governmental Body returns or retains the recorded originals. Seller
shall also be solely responsible for all filings with Governmental Bodies, and
shall promptly provide Buyer with the original approved copies of all such
filings, or confirmation thereof. The Parties shall co-operate in preparing,
executing and filing of record, as necessary, a suitable memorandum of notice
concerning the existence of this Agreement.
13.9 Waivers and Amendments. All amendments and other modifications
hereof shall be in writing and signed by each of the Parties. Any Party may by
written instrument (a) waive any inaccuracies in any of the representation or
warranties made to it by any other Party contained in this Agreement or in any
instruments and documents delivered to it pursuant to this Agreement, or (b)
waive compliance or performance by any other Party with or of any the covenants
or agreements made to it by any other Party contained in this Agreement. The
delay or failure on the part of any Party hereto to insist, in any one instance
or more, upon strict performance of any of the terms or conditions of this
Agreement, or to exercise any right or privilege herein conferred shall not be
construed as a waiver of any such terms, conditions, rights or privileges but
the same shall continue and remain in full force and effect. All rights and
remedies are cumulative.
13.10 Announcements. No announcement concerning this Agreement shall
be made by any Party without prior written approval of the other Parties unless
such announcement is required by reason of any applicable law, regulation or
requirement of any government, governmental authority or any stock exchange, in
which case (save where the giving of such prior notice would contravene any such
law, regulation or requirement) the relevant Party shall give reasonable prior
notice to the other Parties of such announcement.
13.11 Survival of Representations and Convenants. The representations
and warranties contained in this Agreement shall, in so far as they have not
been performed at Completion, remain in full force and effect notwithstanding
the Completion and shall inure to the benefit of the Parties and their
respective successors and assigns. Without in any limiting the foregoing, the
provisions of Section 3 regarding the calculation and payment of the Net Profit
Payments and the provisions of Section 11 regarding the options granted to Buyer
shall survive Completion. The covenants, indemnities and agreements contained
in this Agreement shall survive Completion and continue in accordance with their
respective terms.
13.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Poland. The Courts of Poland shall
have exclusive jurisdiction over any dispute relating to or arising out of this
Agreement and each of the Parties hereby submits to the jurisdiction of the
Polish Courts.
13.13 Arbitration. Except with regard to issues valuation as provided
for in Section 2.4(f) and 11.2, all disputes or differences arising out of or
relating to this Agreement or the breach thereof, including its interpretation,
validity and enforceability shall be settled by arbitration in accordance with
the "ad hoc" arbitration rules before the Arbitration Court of the Polish
National Chamber of Commerce in Warsaw, Poland (or any court or Governmental
Body succeeding such Court). The language to be used in the arbitral
proceedings shall be English. The number of arbitrators shall be three, one to
be chosen by Buyer and one to be chosen by Seller or GlobeGas, as the case may
be, and a chairman to be appointed by the two arbitrators chosen by the Parties
or, if the Parties cannot agree upon a chairman within fourteen (14) days from
the date of filing an application for arbitration, then the chairman shall be
appointed by the President of the Arbitration Court of the Polish National
Chamber of Commerce Poland (or any court or Governmental Body succeeding such
Court). The arbitration proceedings shall be in Warsaw, Poland.
13.14 Section Headings. The section headings in this Agreement are
for convenience of reference only and shall not be deemed to alter or affect the
interpretation of any provision thereof.
13.15 Text Language. If required to do so by any Governmental Agency
or Law, the Parties shall co-operate in having this Agreement translated into
the Polish language; provided, that in case of any discrepancy or conflict
between the English language text of this Agreement and the Polish language text
of this Agreement, the English language text of this Agreement shall prevail.
IN WITNESS WHEREOF, the parties by their duly authorised representatives have
executed this Agreement as of the date first set forth above.
Signed by /s/ Wolfgang Rauball
for and on behalf of
Pol-Tex Methane Sp. z.o.o.
as its duly authorised representative
Signed by /s/ Xxxxxxx X. Andraczke
for and on behalf of
Pol-Tex Methane Sp. z.o.o.
as its duly authorised representative
Signed by /s/ Xxxxxxxx Xxxxxxx
for and on behalf of
GlobeGas B.V.
as its duly authorised representative
Signed by /s/ Xxxx Xxxxxx
for and on behalf of
GlobeGas B.V.
as its duly authorised representative
Signed by /s/ Xxxxxx X. Xxxxxxx
for and on behalf of
Texaco Slask Sp. z.o.o.
as its duly authorised representative
