EXHIBIT 10.1
ASSET PURCHASE AND SALE AGREEMENT
This ASSET PURCHASE AND SALE AGREEMENT (the "Agreement"), dated July 14,
1997, is by and between Crysen Corporation, a Delaware corporation ("Crysen"),
Crysen Refining, Inc., a Delaware corporation ("CRI"), and Sound Refining, Inc.,
a Washington corporation ("SRI") (Crysen, CRI and SRI are sometimes referred to
herein individually as "Seller" and collectively as "Sellers"), and Inland
Resources Inc., a Washington corporation ("Buyer").
RECITALS
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A. Sellers are engaged in the business of manufacturing and selling
refined petroleum products at refineries located in Woods Cross, Utah, and
Tacoma, Washington (collectively, the "Refineries").
B. Sellers desire to sell the Refineries and related assets to Buyer and
Buyer desires to purchase the Refineries and such related assets from Sellers
pursuant to the terms and conditions of this Agreement.
AGREEMENT
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In consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and Sellers agree as follows:
1. Purchase and Sale. Subject to the terms and conditions contained in
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this Agreement, Sellers hereby agree to sell, license, convey, transfer or
assign, as the case may be, and deliver to Buyer, and Buyer agrees to purchase
and receive from Sellers, the Assets defined in Section 2 hereof. In connection
with purchasing the Assets, Buyer agrees to assume Sellers' obligations under
the Cowboy Obligations (as defined in Section 7.2 hereof); the Texaco Judgment
(as defined in Section 7.2); that certain Agreement dated July 12, 1993 with
Phillips Petroleum Company; the Assumed Accounts Payable (as defined in Section
5.3 hereof); accrued vacation pay, if any; and the Contracts defined in Section
2.11 hereof (collectively, the "Assumed Obligations").
2. Assets. The "Assets" are all of Sellers right, title and interest, in
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and to the following real and personal property interests:
2.1 Those tracts or parcels of land described by metes and bounds in
Exhibits "A-1," "A-2" and "A-3" attached hereto (collectively, the "Refinery
Sites") on which the respective Refineries and other Assets are located,
together with all buildings, improvements, fixtures, docks, storage facilities,
equipment, fixed assets and personalty of a permanent nature owned by Sellers,
including the Refineries, which are annexed, affixed or attached to the Refinery
Sites (collectively, the "Refinery Site Improvements") and used or intended to
be used in the production, storage, sale and/or distribution of refined
petroleum products ("Refined Product").
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2.2 The easements, privileges, right-of-way agreements, surface use
rights, fee interests, licenses, highway crossing permits, mineral interests,
realty leasehold interests, servitudes, interests in storage facilities, track
agreements (rights to railway access) and permits, interests in docks and other
real property interests used in connection with the ownership or operation of
the Refineries or the conduct of the businesses related thereto.
2.3 All tangible personal property owned or leased by Sellers (other
than Refinery Site Improvements, Rolling Stock, Inventories and Materials and
Supplies) and located upon or appurtenant to the Refinery Sites or used in
connection with the operation of the Refineries or the conduct of businesses
related thereto, including all such property owned or leased by Sellers which is
used, associated or connected with the production, treatment, storage, handling,
operation, sale, transportation, transfer or ownership of Refined Product
(collectively, the "Equipment") including, but not limited to, the material
items of Equipment described in Exhibit "B" attached hereto.
2.4 The ownership interest or the leasehold interest (as the case may
be) of Sellers in and to all certificated vehicles specifically described in
Exhibit "C" attached hereto (collectively, the "Rolling Stock").
2.5 The ownership interest or the leasehold interest (as the case may
be) of Sellers in and to all terminals and warehouses specifically described in
Exhibit "D" attached hereto.
2.6 Existing customer lists and customer data (including credit data)
related to sales by the Refineries for the calendar years 1996 and 1997 through
Closing.
2.7 Existing supplier lists and supplier data (for the calendar years
1996 and 1997 through Closing) related to the purchase of crude oil, raw
materials, utilities and supplies used at the Refineries.
2.8 All transferable franchises, licenses, permits or other rights
owned by Sellers granted by governmental authorities and all transferable
certificates of convenience or necessity, immunities, privileges, licenses,
easements, consents, grants, ordinances and other rights, of every character
whatsoever owned by Sellers and which are used, required or necessary for the
lawful ownership or operation of the Refineries or the other Assets
(collectively, the "Permits").
2.9 All patents, trademarks and applications therefor and all
copyrights, trade names and brand names, all transferable licenses, all
inventions, discoveries, improvements, processes, technology, know-how, computer
programs and software, formulas, drawings, specifications, trade secrets, plans,
files, notebooks and records owned by Sellers, and licenses to the proprietary
rights and properties of the nature described above, that are being used on the
date hereof in the operation of the Refineries or the other Assets
(collectively, the "Proprietary Rights"). The assignment or transfer of all
Proprietary Rights shall be subject to the restrictions and other provisions
contained in the agreements governing such Proprietary Rights, and the
assumption by Buyer of all obligations contained therein, arising or occurring
on or after the Closing Date.
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2.10 All pipelines used in connection with the operation of the
Refineries and the conduct of the businesses related thereto, including those
used for the transportation of crude oil, raw materials or feedstocks to the
Refineries or for the transportation of Refined Product from the Refineries
(collectively, the "Pipeline Interests").
2.11 All transferable rights of Seller under product purchase and
sales contracts, exchange or swap agreements, processing agreements, equipment
leases, disposal agreements, servicing contracts, easement and/or right-of-way
agreements, maintenance agreements, supply agreements, storage agreements,
utility agreements, switching, docking, loading and tariff agreements and all
other agreements and contracts relating to the use, ownership or operation of
the Refineries, the Pipeline Interests, the Inventories or the other Assets,
including, without limitation, pending sales and purchase commitments existing
on the Closing Date (collectively, the "Contracts").
2.12 All Refined Product, crude oil, raw materials, feedstock, blend
components, and other inventories ("Inventories") and all stores and spare parts
(collectively, "Materials and Supplies") that are owned by Seller and are
located at, used in connection with, acquired for, produced for, contained in or
in transit to, through or from the Refineries or the Pipeline Interests on the
Closing Date.
2.13 All books, records and other documents owned by Sellers and
which relate to the operation of the Refineries or the conduct of the businesses
related thereto or to the other Assets ("Books and Records").
2.14 All accounts receivable (including exchange balance receivables)
related to the Assets outstanding as of Closing (the "Accounts Receivable").
3. Assets Not to be Conveyed. The Assets to be conveyed hereunder shall
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not include the following:
3.1 All letters of credit, deposits, refunds and pre-paid expenses,
including such amounts for utility services, insurance premiums, tax refunds,
credits and discounts made prior to, or incurred or due for periods prior to,
the Closing.
3.2 Any claims or suits arising out of any facts existing, or any
act, omission or occurrence taking place, prior to Closing which the Sellers may
have or hereafter acquired against third parties and insurance claims, claims
for tax refunds, and other refunds or credits or offsets from third parties
arising out of any matters occurring prior to Closing.
3.3 Customer, supplier and credit information which may not be
disclosed under provision of law.
3.4 All cash and bank deposit accounts, of whatever description.
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3.5 All contracts, agreements, licenses and the like, the rights to
which are not transferable.
3.6 Those items listed on Exhibit "E" attached hereto.
3.7 Any and all other items not expressly included in Section 2
hereof.
4. Effective Time. The purchase and sale of the Assets shall be
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effective as of the date and time of Closing.
5. Purchase Price.
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5.1 Purchase Price-Fixed Assets. The purchase price for the Assets,
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other than the Inventories and the Net A/R Amount, shall be Seven Million
Dollars ($7,000,000) (the "Fixed Assets Purchase Price").
5.2 Purchase Price-Inventory. Sellers shall deliver to Buyer, at
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least ten (10) days prior to Closing, a good faith estimate of the Inventories
which Sellers believe will be transferred to Buyer at Closing, together with a
calculation of the purchase price thereof determined by multiplying the volumes
calculated in accordance with Exhibit "F-1" attached hereto times the values
calculated in accordance with Exhibit "F-2" attached hereto, and such supporting
data as Buyer may reasonably request. A physical inventory of the Inventories
shall be taken at 12:01 a.m., local time, on the Closing Date, in accordance
with the procedures specified in Exhibit "F-1," by representatives or designees
of Buyer and Sellers and Banque Paribas. The purchase price for the Inventories
determined by such physical inventory shall then be calculated (the "Inventory
Purchase Price").
5.3 Purchase Price - Accounts Receivable. Buyer also shall pay at
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Closing an amount (the "Net A/R Amount") determined by deducting the aggregate
amount of "Assumed Accounts Payable" related to the Assets at Closing from the
aggregate amount of Accounts Receivable related to the Assets at Closing. If
the Assumed Accounts Payable exceeds the amount of Accounts Receivable at
Closing, the Purchase Price shall be reduced accordingly. "Assumed Accounts
Payable", which Buyer agrees to assume as of Closing, and to thereafter pay in
the ordinary course of business, shall mean all current trade and accounts
payable of SRI and CRI at Closing, which were incurred for the purchase of
Inventory (but not including any obligations for Inventory covered or secured by
letters of credit) and which are owed to parties that owe Accounts Receivable to
CRI and SRI.
5.4 Closing Date Purchase Price. Buyer shall pay to Banque Paribas,
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for the account of Sellers, in immediately available funds and pursuant to
written instructions from Banque Paribas, at Closing as the purchase price for
the Assets the sum of the Fixed Assets Purchase Price, the Inventory Purchase
Price and the Net A/R Amount, as adjusted pursuant to Section 16 hereof and less
the Earnest Money Deposit referred to in Section 5.6 hereof (the "Purchase
Price").
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5.5 Allocation of Purchase Price. Buyer and Sellers have agreed that
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Exhibit "G" attached hereto sets forth allocation of the Purchase Price among
the Assets, other than the Inventories and Net A/R amount, and Buyer and Sellers
each severally agree to use such allocation for federal income tax purposes.
5.6 Earnest Money Deposit. If Buyer does not notify Sellers by the
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close of business on September 10, 1997, that it is terminating this Agreement
pursuant to Section 9 hereof, Buyer shall pay or cause to be paid on September
11, 1997, to Associated First American Title Company of Utah, Inc., as escrow
agent (the "Escrow Agent" or the "Title Company") pursuant to the form of Escrow
Agreement attached hereto as Exhibit "H" (the "Escrow Agreement"), by wire
transfer or other immediately available funds, $250,000 as an earnest money
deposit (the "Earnest Money Deposit"). Such Earnest Money Deposit shall be
invested by the Escrow Agent in accordance with the Escrow Agreement and shall
be applied as provided in this Agreement.
6. The Closing.
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6.1 Closing and Closing Date. The Closing (the "Closing") of the
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transactions contemplated hereby shall be held on September 30, 1997, or such
later date as may be agreed on by the parties (the "Closing Date"), at 10:00
a.m., Mountain Daylight Time, at the offices of Sellers, or at such other
location as the parties may agree.
6.2 Title, Possession, Risk of Loss. Title, possession and risk of
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loss or destruction or damage to the Assets shall pass to Buyer as of the
Closing.
7. Title Insurance, Title Matters and Surveys.
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7.1 Title Policy. Sellers shall provide to Buyer at Closing, at
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Sellers' expense, an owner's title insurance policy or policies with respect to
the Refinery Sites and the Refinery Site Improvements, except that the policy
covering the real property in Exhibit "A-3" shall be only as to Sellers'
contract purchase interest (collectively called the "Title Insurance
Properties"), in an aggregate amount equal to the total of the values allocated
on Exhibit "G" to the realty and fixed assets included in the Assets (the "Title
Insurance Amount"), issued by the Title Company, subject to the "Permitted Title
Policy Exceptions" (as defined in Section 7.2 below). If reasonably practicable
and not requiring the expenditure of funds, which, together with any funds
expended pursuant to Sections 7.2, 8.6 and 8.7 hereof, exceed $25,000 in the
aggregate, at Sellers' expense, Sellers shall obtain surveys of the Title
Insurance Properties as are necessary to enable the Title Company to delete the
survey exception from such title policies, and shall furnish copies of such
surveys to Buyer at least thirty (30) days prior to Closing. Sellers shall pay
the additional cost of any title insurance premium (based upon the Title
Insurance Amount) charged for the deletion of the survey exception with respect
to the properties covered thereby. In the event for any reason the title
insurance policy or policies contemplated hereunder are issued or required to be
issued in an amount in excess of the Title Insurance Amount, any premium payable
therefor in excess of the premium
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for a policy for the Title Insurance Amount with survey deletion shall be at the
cost and expense of Buyer.
7.2 Permitted Title Policy Exceptions. Within ten (10) days of the
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parties execution of this Agreement, Sellers will order from the Title Company
title policy commitments covering the Refinery Sites and the Refinery Site
Improvements. Sellers shall cause the Title Company to deliver to Buyer such
title policy commitments (together with legible copies of all documents noted as
title exceptions thereon) at least thirty (30) days prior to Closing. In the
event either the title policy commitments and/or the surveys to be provided
hereunder evidence any encumbrances to the properties required to be covered
thereby which are not satisfactory to either Buyer or its lenders in their
reasonable judgment, Buyer shall deliver to Sellers within twenty (20) days of
receipt of such title policy commitments, surveys and legible copies of all
documents noted as title exceptions thereon, notice specifying those
encumbrances which are not satisfactory. Sellers covenant and agree that prior
to the Closing, Sellers shall use reasonable efforts (not including (i) the
expenditure of funds, which, together with any funds expended pursuant to
Sections 7.1, 8.6 and 8.7 hereof, exceed $25,000 in the aggregate, or (ii) the
institution of any lawsuit) to cause such items to be cured to Buyer's
reasonable satisfaction, and to the end that such items shall be removed from
the surveys as an encumbrance upon the property covered thereby, and deleted as
an exception to title from the title insurance policy to be delivered at the
Closing; provided, however, that Buyer's sole remedy for failure of Sellers to
cure such title and survey matters, is to terminate this Agreement by notice in
writing to Sellers given within ten (10) days after Sellers shall have advised
Buyer that they have completed their curative efforts; and upon such
termination, no party hereto shall have any further obligations or liabilities
hereunder other than Sellers' obligation to refund the Earnest Money Deposit to
Buyer. The terms of the foregoing proviso shall control over any
representation, warranty or other provision of this Agreement appearing to the
contrary. If Buyer fails to exercise its right of termination as hereinabove
provided, all uncured or unsatisfied title and/or survey matters revealed by the
title commitments and/or surveys will be deemed to have been waived by Buyer.
All matters revealed by the title commitments and/or surveys and not objected to
by Buyer likewise will be deemed to have been waived by Buyer. All matters
deemed to have been waived by Buyer under this Section 7.2 are herein called
"Permitted Title Policy Exceptions." Buyer agrees that the existing purchase
contract obligation and the existing leases on the real property described in
Exhibit "A-3" (the "Cowboy Obligations"), the existing judgment of Texaco
against SRI in the original amount of $460,000 (the "Texaco Judgment"), and the
California State tax lien, if any, are Permitted Title Policy Exceptions.
8. Conduct of Business Prior to Closing. Sellers each represent,
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covenant and agree that from the date hereof to the Closing Date:
8.1 The operations of the Refineries will be conducted in the usual
and ordinary course of business, and the Refinery Site Improvements and the
Equipment will be maintained and repaired in the usual and ordinary course.
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8.2 Sellers will use all reasonable efforts to maintain in full force
and effect the same or similar insurance policies covering the Assets now in
effect, assuming the availability thereof at reasonable premiums.
8.3 Sellers will promptly notify Buyer of the receipt by a Seller of
any written notice or claim of default or breach by such Seller under, or of any
termination or cancellation of, or threat of termination or cancellation of, any
material Contract, Permit or other material instrument relating to the
Refineries or to any of the other Assets.
8.4 Sellers will promptly notify Buyer of any material loss of,
damage to, or disposition of, any of the Assets (other than dispositions in the
ordinary course of business).
8.5 Promptly after receipt of written notice thereof by a Seller,
such Seller will give notice to Buyer of any material claim or litigation,
threatened or instituted, or any other material adverse event or occurrence
involving or affecting any of the Assets.
8.6 Sellers will take all actions and make all filings which are
reasonably necessary to lawfully transfer the Assets to Buyer, except for
filings in connection with approvals or consents of third parties and
governmental agencies customarily made or obtained subsequent to transfer of
title and actions and filings customarily made or obtained by a purchaser of
assets; provided, however, that Sellers shall not be required to spend funds,
which, together with any funds expended pursuant to Sections 7.1, 7.2 and 8.7
hereof, exceed $25,000 in the aggregate, nor shall Sellers be required to
initiate any lawsuit, to comply with this covenant.
8.7 Sellers will comply with or cause to be complied with in all
respects all applicable laws, rules, regulations and orders of all Federal,
State and local governments or governmental agencies the violation of which,
singly or in the aggregate, would have a material adverse effect on the
Refineries or on any of the other Assets; provided, however, that Sellers shall
not be required to spend funds, which, together with any funds expended pursuant
to Sections 7.1, 7.2 and 8.6 hereof, exceed $25,000 in the aggregate to comply
with this covenant.
8.8 Sellers shall not sell, dispose of, distribute, encumber (other
than in favor of Banque Paribas) or enter into any agreement or arrangement for
the sale, disposition, distribution or encumbrance (other than in favor of
Banque Paribas) of any of the Assets (other than in the ordinary course of
business) or enter into any transaction, the effect of which would be to
materially diminish the value of the Assets.
8.9 Without the prior written consent of Buyer, Sellers will not (i)
enter into any single contract or commitment for capital expenditures involving
the Refineries or the other Assets in excess of $50,000 or (ii) enter into or
accept any purchase orders, singly or in the aggregate, for crude oil, raw
materials, feedstocks, or Refined Product containing obligations to deliver for
a period longer than sixty (60) days other than in the ordinary course of
business.
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9. Access to Properties and Records; Due Diligence Review. From the date
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hereof to the Closing Date, Sellers will undertake to keep Buyer advised of all
material developments relevant to the consummation of this Agreement and the
respective operations of the Refineries and the businesses related thereto, and
will provide Buyer, and Buyer's representatives, advisers, lenders, consultants,
appraisers, engineers and other experts, with full access during normal business
hours to (i) the Refinery Sites, Refinery Site Improvements, Equipment, and
Pipeline Interests, for the purpose of conducting such inspections, tests, and
assessments as Buyer shall deem appropriate to determine the physical and
environmental condition thereof; (ii) the Inventory, Material and Supplies,
Contracts, Books and Records, and Permits; and (iii) Sellers' personnel familiar
with the foregoing. The results of the inspections, tests and assessments
referred to above must be acceptable to Buyer in its sole judgment and
discretion. Not later than the close of business on September 10, 1997, Buyer
may notify Seller in writing that it is not satisfied with the results of its
inspections, tests and assessments and that it is terminating this Agreement.
10. Personnel, Employment Arrangements and Employee Benefits.
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10.1 Personnel. Buyer intends to offer employment to substantially
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all hourly and salaried employees of CRI and SRI who are actively employed full
time in the operation of the Refineries and the other Assets on the Closing
Date. No Seller shall take any action prior to the Closing Date, except
dismissal for cause, which would prevent or hinder any of CRI's and SRI's
employees' availability for employment by Buyer. Sellers shall provide Buyer
with relevant information to the extent permitted by law with respect to such
employees and assist Buyer in effecting their change of employment. Such
employees who accept offers of employment by Buyer on the Closing Date shall be
referred to hereinafter collectively as the "Buyer's Employees."
10.2 Employee Rights. Nothing herein expressed or implied shall
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confer upon any current employee of Sellers, including those who become a
Buyer's Employee, or any legal representatives thereof, any rights or remedies,
including any right to employment with Buyer or, in the case of a Buyer's
Employee, any right to continued employment with Buyer for any specified period.
11. Representations and Warranties of Sellers. Sellers represent and
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warrant to Buyer as follows:
11.1 Each Seller is a corporation duly organized, validly existing and
in good standing under the laws of its State of incorporation and each Seller is
duly qualified to do business and is in good standing in each State where its
business operations require such qualification.
11.2 Subject to the consent of Banque Paribas, each Seller has full
power and authority to carry on its business as presently conducted, to execute
and deliver this Agreement and all documents and instruments referred to herein
or contemplated hereby to be executed by such Seller and to consummate the
transactions contemplated herein and thereby, including the full power and
authority to sell, assign and transfer the Assets to Buyer hereunder.
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11.3 Subject to the consent of Banque Paribas, this Agreement has been
duly executed and delivered by each Seller and constitutes the legal, valid and
binding obligations of such Seller enforceable in accordance with its respective
terms and conditions, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity).
11.4 With the consent of Banque Paribas, the execution and delivery of
this Agreement and such other documents and instruments referred to herein or
contemplated hereby, and the consummation of the transactions contemplated
hereby and thereby, and the performance by each Seller of its obligations
hereunder and thereunder, will not violate or conflict with any provision of
such Seller's Articles or Certificate of Incorporation or By-Laws or result in
the breach of or constitute a default under any contract, agreement, commitment
or other instrument of any kind to which such Seller is a party or by which it
is bound.
11.5 Other than Banque Paribas' consent and the filing under the H-S-R
Act (and the expiration or termination of the waiting period thereunder) as
contemplated by Section 13.1 hereof, no approval, consent or other order or
action of or filing with any court, administrative agency, governmental
authority or other third party is required for the execution, delivery or
performance by Sellers of this Agreement or the other documents and instruments
referred to herein or contemplated hereby to be executed by Sellers. There are
no prior consents, rights or preferential purchase right or rights of first
refusal in third parties with respect to any of the Assets.
11.6 Except for those liens, mortgages and encumbrances which will be
released incident to Closing, Sellers have, and shall at the Closing have, full
legal and beneficial title to all of the Assets, free and clear of all liens,
pledges, mortgages, security interests, conditional sales contracts and
encumbrances, except for Permitted Encumbrances. As used in this Agreement, the
term "Permitted Encumbrances" shall mean the following:
11.6.1 Liens for taxes or assessments not yet due or delinquent
or, if delinquent, that are being contested in good faith in the normal
course of business.
11.6.2 All rights to consent by, required notices to, filing
with, or other actions by governmental entities in connection with the sale
or conveyance of the Assets, if the same are customarily obtained
subsequent to such sale or conveyance and neither Seller nor Buyer has no
reason to believe they cannot be obtained.
11.6.3 The Permitted Title Policy Exceptions.
11.6.4 Rights reserved to or vested in any governmental
authority.
11.6.5 Easements, conditions, covenants, restrictions,
servitudes, permits, rights-of-way, surface leases and other rights of
record in the Assets for the purpose of surface operations, roads, alleys,
highways, railways, pipelines, transmission lines,
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transportation lines, distribution lines, power lines, telephone lines,
canals, ditches, reservoirs and other like purposes, or for the joint or
common use of real estate, rights-of-way, facilities and equipment which
will not materially impair the rights held by Buyer or the use and
enjoyment of the Assets.
11.6.6 Zoning, planning and environmental laws and ordinances
and municipal regulations.
11.6.7 Vendors, carriers, warehousemen, repairmen, mechanics,
workmen, materialmen, construction or other like liens arising by operation
of law in the ordinary course of business or incident to the construction
or improvement of any of the Assets in respect of obligations which are not
yet due, or which are being contested in good faith by appropriate
proceedings by or on behalf of Seller and are listed on Exhibit "I"
attached hereto.
11.6.8 Those matters described on Exhibit "J" attached hereto.
11.7 The Proprietary Rights will afford Buyer the right to use all
technology, proprietary information, know-how, computer software and programs
and patented ideas, designs or inventions necessary for the operation of the
Refineries as presently operated.
11.8 Except as described on Exhibit "K" attached hereto, Sellers'
employees involved in the operations of the Refineries and the businesses
related thereto or the other Assets are not subject to any collective bargaining
agreements, nor are they represented by any labor union; there are no unfair
labor practice charges or complaints pending against any of the Sellers by such
employees; and, to the best knowledge of Sellers, there are no organizational
efforts currently underway with respect to such employees.
11.9 Except as described in Exhibit "K", there are no outstanding
obligations, contingent or otherwise, covering any employee involved in the
operations of the Refineries and the businesses related thereto, or of the other
Assets, under any employment or consulting agreement or under any executive
compensation plan, agreement or arrangement maintained by any Seller, other than
an accrued vacation plan, and there are no written and filed claims or disputes
outstanding under any such plan, agreement or arrangement.
11.10 The Assets transferred to Buyer include all of the material
assets and properties, real, personal, tangible and intangible, which are
currently being used in the operations conducted by the Refineries and the
Pipeline Interests at the date of this Agreement or on the Closing Date.
11.11 The Refineries have been operated in accordance with standard
industry practices and procedures and the Refinery Site Improvements, Equipment
and Pipeline Interests have been maintained in a state of repair to be adequate
for normal operations and are in good working order.
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11.12 Other than the transactions with Union Pacific Fuels, Inc.
referred to in Exhibit "F-1", on the date hereof there are no, and on the
Closing Date there shall not be any, obligations to deliver any Refined Product
on or after the Closing Date without then or thereafter receiving full payment
therefor.
11.13 All Permits are in full force and effect on the date hereof and
shall be in full force and effect on the Closing Date.
11.14 No Seller is in default (other than under its agreements with
Banque Paribas) under any lease, contract or agreement, undertaking, commitment,
judgment, order or decree of any court or any government agency or
instrumentality relating to or affecting any of the Assets under which any party
is or may be entitled to assert any rights against any of the Assets.
11.15 To each Seller's best knowledge, except as described on Exhibit
"L" attached hereto, (i) Sellers are in substantial compliance in all material
respects with all applicable environmental laws with respect to the Assets; (ii)
Sellers have not received any inquiry or notice, other than an inquiry or notice
that has been fully and finally resolved, nor do Sellers have any reason to
believe they will receive any inquiry or notice, that alleges that Sellers are
not now, or in the past have not been, in compliance with all applicable
environmental laws with respect to the Assets; (iii) there are no materials of
environmental concern on, in, or about the Assets other than as allowed by
environmental laws and no conditions exist on, in, or about the Assets that
could give rise to liabilities, potential liabilities or claims under
environmental laws or common law; (iv) Sellers have not caused or allowed
materials of environmental concern to migrate from the Assets upon or beneath
other properties, except as permitted by environmental laws; (v) there are no
underground storage tanks on the Assets and Sellers have not transported,
disposed, or arranged for disposal, reclamation, recycling, or sale of materials
of environmental concern from the Assets to other properties, other than as
allowed by environmental laws; and (vi) Sellers have not transported, disposed,
stored offsite, or arranged for disposal, reclamation, recycling, or sale of
materials of environmental concern from the Assets that could give rise to
liabilities, potential liabilities or claims under environmental laws or common
law.
11.16 Except as described on Exhibit "M" attached hereto, there are
no claims, demands, lawsuits, actions or other proceedings pending or threatened
against the Assets.
11.17 Sellers have incurred no liability, contingent or otherwise,
for broker's or finder's fees or commissions relating to the transactions
contemplated by this Agreement for which Buyer shall have any responsibility
whatsoever.
12. Representations and Warranties of Buyer. Buyer represents and
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warrants to Sellers as follows:
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12.1 Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington and is duly qualified to
do business and is in good standing in the States where its business operations
require such qualification.
12.2 Buyer has full power and authority to carry on its business as
presently conducted and, to execute and deliver this Agreement and all documents
and instruments referred to herein or contemplated hereby to be executed by
Buyer and to consummate the transactions contemplated herein and thereby,
including the full power and authority to accept the assignment of the Assets
from Sellers hereunder.
12.3 This Agreement has been duly executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer enforceable in
accordance with its respective terms and conditions, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
12.4 The execution and delivery of this Agreement and such other
documents and instruments referred to herein or contemplated hereby, and the
consummation of the transactions contemplated hereby and thereby, and the
performance by Buyer of its obligations hereunder and thereunder, will not
violate or conflict with any provision of Buyer's Articles or Certificate of
Incorporation or By-Laws or result in the breach of or constitute a default
under any contract, agreement, commitment or other instrument of any kind to
which such Buyer is a party or by which it is bound.
12.5 Other than the filing under the H-S-R Act (and the expiration of
termination of the waiting period thereunder) as contemplated by Section 13.1
hereof, no approval, consent or other order or action of or filing with any
court, administrative agency, governmental authority or other third party is
required for the execution, delivery or performance by Buyer of this Agreement
or the other documents and instruments referred to herein or contemplated hereby
to be executed by Buyer.
12.6 Buyer has incurred no liability, contingent or otherwise, for
broker's or finder's fees or commissions relating to the transactions completed
by this Agreement for which Sellers shall have any responsibility whatsoever.
13. Actions by the Parties. The parties respectively covenant and agree
----------------------
as follows with respect to the period commencing on the date of this Agreement
and ending on the Closing Date:
13.1 Notices and Consents. Each of the parties will promptly file
--------------------
any notification and report forms and related material that it may be required
to file with the Federal Trade Commission and the Antitrust Division of the
United States Department of Justice under the Hart-Scott-Rodino Antitrust
Improvement Act of 1976, as amended (the "H-S-R Act"), will join in a
12
request for early termination under the H-S-R Act and use its reasonable best
efforts to obtain such termination, and will make any further filings pursuant
thereto that may be necessary in connection therewith. Each Party will furnish
the other Party with copies of any of its filings under the H-S-R Act at the
time such filings are made.
13.2 Actions by the Parties. Each of the parties agrees to use its
----------------------
reasonable best efforts to satisfy the covenants set forth in Section 8 hereof
and the conditions to Closing set forth in Section 14 hereof, including, but not
limited to, the obtaining of necessary consents and permits, and to refrain from
taking any action within its control which would cause a breach of a
representation or warranty set forth herein; provided, however, that neither
Sellers nor Buyer shall be required to expend any funds or incur any costs to
prevent or cure a breach of the representations and warranties set forth in
Sections 11 and 12, respectively, hereof.
14. Conditions to Closing.
---------------------
14.1 Conditions Precedent to Obligations of Buyer. The obligation of
--------------------------------------------
Buyer to consummate the transactions contemplated by this Agreement shall be
subject to satisfaction or waiver by Buyer prior to or at the Closing of all of
the following conditions:
14.1.1 Sellers shall have complied in all material respects
with all of their respective agreements and covenants contained herein to
be performed at or prior to Closing and all of the representations and
warranties of Sellers contained herein shall be accurate in all respects
when made and at and as of the Closing with the same effect as though such
representations and warranties had been made at and as of the Closing and
Buyer shall have received an officer's certificate from each Seller to such
effect.
14.1.2 Sellers shall have provided to Buyer a written opinion
from Parsons Behle & Latimer, dated the Closing Date, substantially in the
form of Exhibit "N" attached hereto. In rendering such opinion, counsel
may rely to the extent deemed appropriate on the certificates of officers
of Sellers and of public officials as to matters of fact and authenticity
of documents and on opinions of counsel in other States as to questions
under the laws of such States and on opinions of counsel to each of the
Sellers with respect to matters relating to such entity.
14.1.3 No casualty, loss or damage in an amount exceeding
$100,000 shall have occurred prior to the Closing Date to the Assets unless
Sellers shall have either repaired or replaced such lost or damaged
property. In the event of such casualty loss or damage for which insurance
proceeds are received prior to Closing, should the Closing occur, such
proceeds shall be paid to the Buyer at Closing, unless such loss or damage
has been repaired, in which event, such proceeds shall be retained by
Sellers. In the event there is a claim by Sellers for insurance proceeds
relating to the Assets which claim has not been paid or the loss or damage
repaired as of the Closing Date, Sellers shall assign their rights to such
claim to the Buyer at the Closing.
13
14.1.4 Buyer shall have received the commitment for title
insurance and the owner's policy or policies of title insurance providing
coverage in the Title Insurance Amount as specified in Section 7 (or shall
have been furnished with evidence to the satisfaction of Buyer in its
reasonable judgment that such title policy or policies will be forthcoming
in due course).
14.1.5 All material documents, instruments and agreements
required to be executed and delivered by Sellers at the Closing as
contemplated hereby shall have been duly executed and delivered by Sellers
and shall have been received.
14.1.6 All applicable waiting periods (and any extensions
thereof) under the H-S-R Act shall have expired or otherwise been
terminated.
14.1.7 All other consents and approvals of third parties or
any regulatory body or authority, whether required contractually or by
applicable Federal, State or local law, necessary for the execution,
delivery and performance of this Agreement by the Sellers, and the transfer
of the Assets to Buyer to permit the Buyer to operate the Refineries and
the Pipeline Interests in the same manner in all material respects as such
facilities are currently operated by Sellers, except for approvals of
governmental agencies customarily obtained subsequent to transfer of title,
shall have been delivered to Buyer in form and substance satisfactory to
Buyer at least two (2) business days prior to the Closing Date and shall
not have been withdrawn or revoked.
14.1.8 All ad valorem and other taxes assessed against the
Refineries, the Pipeline Interests, and the other Assets for the year 1996
and all prior years shall have been paid.
14.1.9 There shall have been no material adverse change since
the date hereof in the respective businesses conducted at Refineries or in
the financial condition or results of operations thereof except for changes
brought about by factors affecting the refinery business in general.
14.1.10 Buyer shall have received the executed consent from
Banque Paribas to the sale contemplated by this Agreement and Banque
Paribas' commitment to release its lien on the Assets upon Closing, subject
to the terms and conditions set forth in such consent and commitment, in
the form attached hereto as Exhibit "O".
14.1.11 The Escrow Agent or Buyer shall have received
instruments, in form reasonably satisfactory to Buyer's counsel, evidencing
the release, effective the Closing Date, of any indebtedness, obligation or
other encumbrance burdening the Assets, other than Permitted Encumbrances,
including Banque Paribas' lien on the Assets.
14
14.2 Conditions Precedent to Obligations of Sellers. The obligations
----------------------------------------------
of Sellers to consummate the transactions contemplated by this Agreement shall
be subject to satisfaction or waiver by each Seller at or prior to the Closing
of all of the following conditions:
14.2.1 Buyer shall have complied in all material respects with
all of its agreements and covenants contained herein to be performed at or
prior to the Closing, and all the representations and warranties of Buyer
contained herein shall be accurate in all material respects when made and
at and as of the Closing with the same effect as though such
representations and warranties had been made at and as of the Closing and
Sellers shall have received an officer's certificate from Buyer to such
effect.
14.2.2 Buyer shall have paid Banque Paribas for the account of
Sellers the Purchase Price.
14.2.3 Buyer shall have provided to Sellers a written opinion
from Welborn Sullivan Meck & Tooley, P.C., dated the Closing Date,
substantially in the form of Exhibit "P" attached hereto. In rendering
such opinion, counsel may rely to the extent deemed appropriate on the
certificates of officers or employees of Buyer and of public officials as
to matters of fact and authenticity of documents and on opinions of counsel
in other States as to questions under the law of such States.
14.2.4 All material documents, instruments and agreements
required to be executed and delivered by Buyer at Closing as contemplated
hereby shall have been duly executed and delivered by Buyer and shall have
been received.
14.2.5 The cost to Sellers of the title insurance contemplated
hereunder shall not exceed the cost of a title insurance policy in the
Title Insurance Amount.
14.2.6 All applicable waiting periods (and any extensions
thereof) under the H-S-R Act shall have expired or otherwise been
terminated.
14.2.7 The consents and approvals referred to in Section 14.1.7
shall have been obtained and shall not have been withdrawn or revoked at
Closing.
14.2.8 Buyer shall have received, the consent and commitment
from Banque Paribas referred to in Section 14.1.10.
14.3 Absence of Litigation. The obligations of the parties hereto to
---------------------
consummate the transactions contemplated by this Agreement shall be subject to
the existence as of the Closing of the following conditions:
14.3.1 None of the parties hereto shall be prohibited by any
order, writ, injunction or decree of any governmental body from
consummating the transactions contemplated by this Agreement or in
connection herewith, and no action or proceeding shall
15
then be pending which questions the validity of this Agreement, any of the
transactions contemplated hereby or in connection herewith, or any action
which has been taken by any of the parties in connection herewith or in
connection with any of the transactions contemplated hereby or in
connection therewith.
14.3.2 There shall not be pending any legal proceedings seeking
to prohibit the consummation of the transactions contemplated by this
Agreement or to obtain substantial damages from any party with respect
thereto.
15. Closing. At Closing, the parties shall deliver the following
-------
documents and the following events shall occur:
15.1 Sellers shall deliver or cause to be delivered to the Title
Company or the Buyer:
15.1.1 Executed (i) Assignments, Bills of Sale, Conveyances,
substantially in the form attached as Exhibit "Q" attached hereto (the
"Assignments"), (ii) Special Warranty Deeds substantially in the form
attached as Exhibit "R" hereto, (iii) an Assumption Agreement (covering the
Assumed Obligations), substantially in the form attached as Exhibit "S"
hereto, ; and (iv) such other instruments as may be required to convey the
Assets to Buyer and otherwise effectuate the transactions contemplated by
this Agreement. Each such instrument shall be executed in sufficient
counterparts to facilitate recording. Seller shall convey to Buyer all of
Seller's right, title and interest in the Assets, subject to the Permitted
Encumbrances. The Assignments shall provide that ALL PERSONAL PROPERTY,
MACHINERY, FIXTURES, EQUIPMENT AND MATERIALS CONVEYED THEREBY ARE SOLD AND
ASSIGNED AND ACCEPTED BY BUYER IN THEIR "WHERE IS, AS IS" CONDITION,
WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, OF MARKETABILITY,
QUALITY, CONDITION, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE
OR USE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
15.1.2 The Officer's Certificates referred to in Section 14.1.1
hereof.
15.1.3 The opinion of counsel referred to in Section 14.1.2
hereof.
15.2 Buyer shall deliver or cause to be delivered to Banque Paribas
or the Sellers:
15.2.1 The Purchase Price.
15.2.2 The Officer's Certificate referred to in Section 14.2.1
hereof.
15.2.3 The opinion of counsel referred to in Section 14.2.3
hereof.
16
15.3 Buyer and Sellers shall execute and deliver a preliminary
settlement statement, in the form attached hereto as Exhibit "T" (the
"Preliminary Settlement Statement"), prepared by Sellers and confirmed by Buyer
which sets forth the Purchase Price, as adjusted pursuant to Section 16 hereof,
reflecting such adjustments and the calculation used to determine such Purchase
Price.
15.4 Within ten (10) days after Closing, Sellers shall deliver to
Buyer the Contracts and the Books and Records. Sellers shall be entitled to
keep copies of such Contracts and Books and Records for their files.
16. Taxes. All ad valorem, real property taxes, personal property taxes
-----
and similar obligations shall be prorated between Sellers and Buyer on an
estimated basis as of the Closing and the Purchase Price shall be adjusted at
the Closing accordingly. The Purchase Price shall not be reduced by any sales
taxes or other transfer taxes and Buyer shall be liable for any such taxes, as
well as any applicable conveyance, transfer and recording fees, and real estate
transfer stamp or taxes imposed upon the sale of the Assets. If Sellers are
required by applicable State law to report and pay these taxes or fees, Buyer
shall promptly deliver a check to Banque Paribas, for the account of Sellers, in
full payment.
17. Apportionment of Liabilities and Obligations.
--------------------------------------------
17.1 Upon Closing, Buyer shall assume and pay for, fulfill and
discharge all costs, expenses, liabilities and obligations accruing or relating
to the owning, operating or maintaining of the Assets or the transporting and
marketing of Refined Product, relating to periods on and after the Closing,
including without limitation, environmental obligations and liabilities, offsite
liabilities associated with the Assets, taxes, and all obligations arising under
agreements covering or relating to the Assets and shall assume, by executing the
Assumption Agreement, the obligation to pay the Assumed Obligations
(collectively, the "Post-Effective Time Liabilities").
17.2 Upon Closing, except as provided to the contrary in Sections 1,
5.3 and 16 hereof and except for Permitted Encumbrances, Sellers shall assume
and be liable for all costs, expenses, liabilities and obligations accruing or
relating to the owning, operating or maintaining of the Assets or the
transporting, and marketing of Refined Product, relating to periods before the
Closing, including without limitation, environmental obligations and
liabilities, offsite liabilities associated with the Assets, and all obligations
arising under agreements covering or relating to the Assets not assumed by Buyer
(collectively, the "Pre-Effective Time Liabilities").
18. Indemnification. For the purposes of this Agreement, "Losses" shall
---------------
mean any actual loss, cost and expense (including reasonable fees and expenses
of attorneys, technical experts and expert witnesses), liability, and damage
(including those arising out of demands, suits, sanctions of every kind and
character); provided, however, that in no event shall "Losses" be deemed to
include consequential damages.
17
18.1 Sellers shall indemnify and hold harmless Buyer, its officers,
managers, members, employees, representatives, agents, successors and assigns,
as applicable, forever, from and against all Losses which arise from or in
connection with (i) the Pre-Effective Time Liabilities, and (ii) Sellers' breach
of their representations and warranties in this Agreement.
18.2 Buyer shall indemnify and hold harmless Sellers, and their
respective officers, directors, shareholders, employees, representatives,
agents, successors and assigns, as applicable, forever, from and against all
Losses which arise from and in connection with (i) the Post-Effective Time
Liabilities, and (ii) Buyer's breach of its representations and warranties in
this Agreement.
18.3 Third Party Claims. If a claim by a third party is made against
------------------
any of the parties (the "Indemnified Party"), and if the Indemnified Party
intends to seek indemnity with respect thereto under this Section 18, the
Indemnified Party shall promptly notify the other party or parties (the
"Indemnifying Party") of such claims. The Indemnifying Party shall have thirty
(30) days after receipt of such notice to undertake, conduct and control,
through counsel of its own choosing and at its own expense, the settlement or
defense thereof, and the Indemnified Party shall cooperate with it in connection
therewith. The Indemnifying Party shall permit the Indemnified Party to
participate in such settlement or defense through counsel chosen by the
Indemnified Party; provided, however, the fees and expenses of such counsel
shall be borne by the Indemnified Party. So long as the Indemnifying Party, at
the Indemnifying Party's cost and expense, (1) has undertaken the defense of,
and assumed full responsibility for all Losses with respect to, such claim, and
(2) is reasonably contesting such claim in good faith, by appropriate
proceedings, the Indemnified Party shall not pay or settle any such claim. The
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the claim without the prior written consent of
the Indemnified Party (not to be withheld unreasonably) unless the judgment or
proposed settlement involves only the payment of money damages and does not
impose an injunction or other equitable relief upon (or constitute an admission
of guilt, liability, fault or responsibility for) the Indemnified Party. If,
within thirty (30) days after the receipt of the Indemnified Party's notice of a
claim of indemnity hereunder, the Indemnifying Party does not notify the
Indemnified Party that it elects, at the Indemnifying Party's cost and expense,
to undertake the defense thereof and assume full responsibility for all Losses
with respect thereto, or gives such notice and thereafter fails to contest such
claim in good faith, the Indemnified Party shall have the right to contest,
settle or compromise the claim, but shall not thereby waive any right to
indemnity therefor pursuant to this Agreement.
19. Final Settlement Statement. As soon as practicable after the Closing,
--------------------------
but in no event later than ninety (90) days thereafter, Sellers shall prepare
and deliver to Buyer, in accordance with this Agreement and generally accepted
accounting principles, a statement ("Final Settlement Statement") setting forth
each adjustment that was not finally determined as of the Closing and showing
the calculation of such adjustments. Within thirty (30) days after receipt of
the Final Settlement Statement, Buyer shall deliver to Sellers a written report
containing any changes that Buyer proposes be made to the Final Settlement
Statement. The parties shall undertake to agree with respect to the amounts due
for such post-Closing adjustments no later than sixty (60) days after Buyer's
receipt of the Final Settlement Statement. Any payments due from a party to
another party
18
as a result of the Final Settlement Statement shall be made within
five (5) business days after the parties agree on the final amounts due.
20. Further Assurances. After Closing, Sellers and Buyer shall execute,
------------------
acknowledge and deliver or cause to be executed, acknowledged and delivered such
instruments and take such other action as may be reasonably necessary or
advisable to carry out the purposes and intent of this Agreement and any
document, certificate or other instrument delivered pursuant hereto.
21. Right of Termination.
--------------------
21.1 This Agreement and the transactions contemplated herein may be
terminated at any time at or prior to Closing:
21.1.1 By mutual consent of Sellers and Buyer.
21.1.2 By Sellers, at Sellers' option, in the event any of the
conditions set forth in Sections 14.2 or 14.3 have not been satisfied as
provided therein.
21.1.3 By Buyer, at Buyer's option, in the event any of the
conditions set forth in Sections 14.1 or 14.3 have not been satisfied as
provided therein.
21.1.4. By Buyer, at Buyer's option, pursuant to the terms of
Section 9.
21.2 In the event of the termination of this Agreement pursuant to
Section 21.1 because of the breach of a party's representations or warranties
hereunder, subject to Sections 21.3 and 21.4 hereof, such termination shall be
the exclusive remedy for such breach and all rights and obligations of the
parties hereunder shall terminate without any liability or responsibility of any
party to any other party.
21.3 If, in the event Sellers willfully refuse to consummate the
Closing of the sale of the Assets in accordance with this Agreement
notwithstanding the satisfaction of the conditions to Closing set forth in
Section 14.2 hereof, Buyer (i) elects to enforce its rights of purchase as set
forth in this Agreement, and (ii) is prevented or delayed from consummating such
purchase by reason of Sellers' refusal to consummate the transactions
contemplated hereby, Sellers hereby acknowledge and agree that the Assets
constitute unique assets, that damages for Sellers' refusal to Close would be
difficult or impossible to ascertain, that Buyer has no clear and adequate
remedy at law, and that as a remedy for Sellers' refusal Buyer has the right,
exercisable in its sole discretion, to demand and obtain specific performance of
this Agreement and of Sellers' obligation to consummate the Closing in
accordance with the terms of this Agreement and as part of pursuing such remedy
of specific performance may pursue such other remedies as the Buyer may have
under the terms of this Agreement or at law or in equity.
21.4 If Closing occurs in accordance with this Agreement, the Earnest
Money Deposit, together with any interest accrued thereon to Closing, shall be
credited against the Purchase
19
Price. If (i) Closing does not occur, (ii) this Agreement is terminated
pursuant to Section 21.1, and (iii) Buyer is not then in breach of any of its
covenants or agreements contained in this Agreement, then the Earnest Money
Deposit (if such Earnest Money Deposit has been paid pursuant to Section 5.6
hereof), together with any accrued interest, shall be refunded to Buyer as
Buyer's sole remedy hereunder (subject to Section 21.3 hereof). If (i) Closing
does not occur and (ii) this Agreement is terminated pursuant to Section 21.1,
but Buyer is then in breach of one or more of its covenants or agreements
contained in this Agreement, the Earnest Money Deposit, together with any
accrued interest, shall be remitted to Banque Paribas, for the account of
Sellers, which shall retain such amount as liquidated damages in lieu of all
other damages and as Sellers' sole remedy with respect to such breach or
breaches .
22. Survival. The representations, warranties and indemnities contained
--------
in this Agreement shall survive the Closing.
23. Expenses. Buyer and Sellers shall be liable for their respective
--------
costs and expenses incurred in connection with the transactions contemplated by
this Agreement.
24. Notices. All notices under this Agreement shall be in writing and
-------
addressed as set forth below. Any communication or delivery hereunder shall be
deemed to have been duly made and the receiving party charged with notice (i) if
personally delivered or faxed, when received, (ii) if mailed, three (3) business
days after mailing, certified mail, return receipt requested, or (iii) if sent
by overnight courier, one day after sending. All notices shall be addressed as
follows:
If to Sellers:
-------------
Crysen Corporation
Crysen Refining, Inc.
Sound Refining, Inc.
2355 South 1100 West
Woods Cross, Utah 84087
Attn: David W. McSwain
Telephone: (801) 298-3211
Fax: (801) 298-11122
20
With a copy to:
--------------
Robert H. Hyde, Esq.
Parsons Behle & Latimer
201 South Main Street, Suite 1800
Post Office Box 45898
Salt Lake City, Utah 84145-0898
Telephone: (801) 532-1234
Fax: (801) 536-6111
If to Buyer:
-----------
Inland Resources, Inc.
475 Seventeenth Street, Suite 1500
Denver, Colorado 80202
Attn: Mr. Kyle R. Miller
President and C.E.O.
Telephone: (303) 292-0900
Fax: (303) 595-8515
Any party may, by written notice so delivered to the other parties, change
the address or individual to which delivery shall thereafter be made.
25. Assignment. Neither Buyer nor Sellers may assign their respective
----------
rights or delegate their respective duties or obligations under the terms of
this Agreement without the prior written consent of the other party or parties
hereto; provided, however, that Buyer may assign such rights, duties and/or
obligations to a direct or indirect subsidiary of Buyer without Sellers' prior
consent.
26. Press Releases and Public Announcements. No party shall issue any
---------------------------------------
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior approval of the other
parties, which approval shall not be unreasonably withheld; provided, however,
that any party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement concerning its
publicly traded securities (in which case the disclosing party will use its
reasonable best efforts to advise the other parties prior to making the
disclosure).
27. Confidentiality. Buyer and Sellers agree to keep the terms and
---------------
conditions of this Agreement, and all proprietary and confidential information
exchanged between Buyer and Sellers in connection with this Agreement,
confidential and to not disclose the existence of this Agreement without the
prior written consent of each of the Parties. The foregoing restrictions shall
not apply to disclosures and information to Banque Paribas or which (i) are
required to comply with applicable statutes and regulations; (ii) are required
to enforce this Agreement; (iii) are required to obtain financing related to the
transactions contemplated hereby; (iv) enter the public domain through a
21
third party who does not thereby breach an obligation of confidentiality; or (v)
are made in association with press releases issued in accordance with Section
26.
28. Binding Effect. This Agreement shall be binding upon and shall inure
--------------
to the benefit of the parties hereto and their successors and assigns.
29. Complete Agreement. When executed by the authorized representatives
------------------
of Sellers and Buyer, this Agreement, the Exhibits hereto and the documents to
be delivered pursuant hereto shall constitute the complete agreement among the
parties. This Agreement may be amended only by a writing signed by each of the
parties hereto.
30. Knowledge. As used in this Agreement, the term "Knowledge" shall mean
---------
the actual knowledge of any fact, circumstance or condition by any officer or
manager of Sellers in charge of a discrete business area or function having
responsibility for the referenced matter, as such knowledge has been obtained in
the performance of their duties in the ordinary course of business after making
reasonable and appropriate inquiries.
31. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO WITHOUT REFERENCE TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
32. Headings. The heading of the sections of this Agreement are for
--------
guidance and convenience of reference only and shall not limit or otherwise
affect any of the terms or provisions of this Agreement.
33. Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SELLERS:
CRYSEN CORPORATION
By: ____________________________________________
Its:____________________________________________
CRYSEN REFINING, INC.
By: ____________________________________________
Its:____________________________________________
SOUND REFINING, INC.
By: ____________________________________________
Its:____________________________________________
BUYER:
INLAND RESOURCES INC.
By: ____________________________________________
Kyle R. Miller
President and C.E.O.
23
EXHIBITS
--------
"A-1", "A-2", "A-3" Refinery Sites
"B" Material Equipment
"C" Rolling Stock
"D" Terminals and Warehouses
"E" Excluded Assets
"F-1" Inventory Procedures
"F-2" Inventory Values
"G" Allocation Schedule
"H" Escrow Agreement
"I" Contested Liens
"J" Permitted Encumbrances
"K" Union Representation
"L" Environmental Matters
"M" Litigation and Claims
"N" Seller's Counsel's Opinion
"O" Banque Paribas' Consent
"P" Buyer's Counsel's Opinion
"Q" Assignment, Bill of Sale, Conveyance
"R" Special Warranty Deed
"S" Assumption Agreement
"T" Preliminary Settlement Statement
24
CONSENT REGARDING RELEASE OF
TRUST DEED AND SECURITY AGREEMENTS
________________________________________________________________________________
This Consent Regarding Release of Trust Deed and Security Agreements (this
"Consent") is made and entered into this 14th day of July, 1997, by Banque
Paribas for and in favor of Inland Resources, Inc. ("Inland"), which hereby
accepts and agrees to the terms of this Consent.
RECITALS
A. Inland has entered into an Asset Purchase and Sale Agreement (the
"Sale Agreement", a copy of which is attached hereto as Exhibit "A"), dated the
date hereof, with Crysen Corporation, Crysen Refining, Inc., and Sound Refining,
Inc. (collectively, "Crysen"), providing for the purchase by Inland of Crysen's
refineries located in Woods Cross, Utah and Tacoma, Washington (the
"Refineries") and related assets.
B. Banque Paribas has a first priority lien on the Refineries and all
other assets of Crysen.
C. Inland has requested that Banque Paribas give its consent to the sale
contemplated by the Sale Agreement and that Banque Paribas set forth the terms
on which it will agree to release its lien on the Assets.
D. Unless otherwise specified herein, capitalized terms used in this
Consent shall have the meanings assigned to them in the Sale Agreement.
TERMS OF CONSENT
Banque Paribas hereby represents to Inland that it is prepared to consent
to the sale of the Refineries on the terms set forth in the Sale Agreement and
to release its lien on the Assets upon Closing on the following terms and
conditions:
1. The sale of the Assets has been fully effectuated in accordance with
the terms of the Sale Agreement on or before September 30, 1997, or such later
date as may be agreed to in writing by Banque Paribas in its sole discretion.
2. The Sale Agreement, each of the Exhibits to be attached thereto, and
the Letter Agreement described in paragraph 3 below have not been amended or
modified in any respect prior to Closing, nor has any party thereto waived any
terms or conditions of the Sale Agreement, any of the Exhibits to be attached
thereto, or the Letter Agreement described in paragraph 3 below.
3. The Exhibits have been finalized and attached to the Sale Agreement,
as contemplated by the letter agreement between Crysen and Inland dated the date
hereof (The "Letter Agreement", a copy of which is attached hereto as Exhibit
"B"), within the time limits set forth in the Letter Agreement, and are in form
and substance acceptable to Banque Paribas in its sole discretion. Banque
Paribas or its agents must have the opportunity to independently verify the
final inventory.
4. Banque Paribas receives at closing, in consideration for the release
of its liens, one hundred percent (100%) of the Fixed Asset Purchase Price (in
an amount not less than $7,000,000.00),
the Inventory Purchase Price and the Accounts Receivable Purchase Price. All
letters of credit issued by Banque Paribas covering inventory not received by
Crysen by 12:01 a.m. on the Closing must have been canceled or totally cash
collateralized by Inland.
5. No portion of the Purchase Price is paid or required to be paid to any
other creditor or creditors of Crysen. In this regard, Inland agrees that the
judgment lien of Texaco Refining and Marketing, Inc., and the State of
California tax lien, if any, are Permitted Encumbrances.
6. Crysen and the shareholders of Crysen Corporation have consented to
Banque Paribas's release of its lien on the Assets and have provided Banque
Paribas with a general release of any and all claims, causes of action and
defenses.
7. On the date of Closing, the amount received by Banque Paribas with
respect to Crysen Refining, Inc.'s and Sound Refining, Inc.'s working capital
assets, after repayment of all working capital loans and cancellation of, or
full cash collateralization by Crysen (or, with respect to the letters of credit
referred to in paragraph 4 above, by Inland) of, all letters of credit, is not
less than $3,200,000.00, exclusive of positive cash flow (net profit, plus
depreciation, plus non-cash expenses, less capital expenditures) generated by
Crysen Refining, Inc. and Sound Refining, Inc., between the date hereof and the
date of Closing.
8. Prior to or at the time of Closing, no portion of the Purchase Price
or any other monies or assets of Crysen shall have been paid to any Shareholders
of Crysen Corporation or on account of accrued vacation of any Crysen employees.
9. Inland represents to Banque Paribas that no monies or other
consideration have been or will be paid to any person or entity in connection
with Inland's purchase of the Assets, other than as set forth in the Sale
Agreement.
10. At Closing, Inland shall provide to Banque Paribas (a) a release of
any and all environmental claims relating to the Assets; and (b) an
indemnification with respect to environmental claims arising from Inland's
ownership or operation of the Assets, in the form attached hereto as Exhibit
"C".
11. Inland acknowledges that Banque Paribas has not made any
representations or warranties with respect to Crysen, the Assets, or any of the
transactions contemplated by the Sale Agreement and that its decision to
purchase the Assets is and will be based on its own due diligence review. Inland
agrees that it has not relied and will not rely on any representations,
warranties, or information provided by Banque Paribas whatsoever in making the
decision to purchase the Assets.
12. The $250,000.00 Earnest Money Deposit shall be deposited with an
escrow agent pursuant to an Escrow Agreement containing terms acceptable to
Banque Paribas and which provides for the payment of the Earnest Money Deposit
to Banque Paribas in the event that it is forfeited by Inland.
13. Between the date hereof and Closing, Crysen shall continue to operate
the Refineries in accordance with standard industry practices and procedures and
in a manner reasonably designed to maximize the profitability of the Refineries
and Crysen shall not make any payments or transfer any assets to any individual
or entity outside of the ordinary course of its business, or make any
prepayments
or any payments in advance of any applicable due date. Borrowing Base Reports
shall be prepared by Crysen in a manner which is consistent with past practices
from the date hereof until Closing.
14. Between the date hereof and Closing, Crysen shall not make any capital
expenditures in excess of $20,000.00 per occurrence, or $50,000.00 in the
cumulative, without the prior written consent of Banque Paribas and shall only
make those capital expenditures that are actually necessary to maintain the
safety of the Refineries or to avoid deterioration of the condition of the
Refineries prior to the date of Closing.
15. Nothing contained herein shall be deemed to require Banque Paribas to
make advances or to extend credit to Crysen between the date hereof and Closing
and Banque Paribas reserves the right to exercise any and all rights and
remedies pursuant to the Credit Agreement dated January 31, 1995 between Banque
Paribas and Crysen, or any associated notes, trust deeds, security agreements,
guarantees, documents, or agreements (collectively, the "Credit Documents"),
including, but not limited to, the rights (a) to accelerate Crysen's
obligations, (b) to foreclose on any or all of the Assets or other assets of
Crysen, or (c) to exercise any other rights with respect to the Assets, in any
of which events Banque Paribas may terminate this Consent by providing written
notice to Inland. This Consent does not modify in any respect any of Crysen's
obligations under any of the Credit Documents, nor does it modify in any
respect, or impose any limitation whatsoever on, Banque Paribas's rights and
remedies under any of the Credit Documents. Banque Paribas does not waive any
rights or remedies under any of the Credit Documents and hereby expressly
reserves any and all such rights and remedies.
16. Banque Paribas and Inland agree to keep the terms and conditions of
this Consent confidential and to not disclose such terms and conditions without
the prior written consent of each of the parties. The forgoing restrictions
shall not apply to disclosures and information which (i) are required to comply
with applicable statutes and regulations; (ii) are required to enforce this
Consent; or (iii) enter the public domain through a third party who does not
thereby breach an obligation of confidentiality.
17. In addition to Banque Paribas's right to terminate this Consent
pursuant to paragraph 15 above, In the event of a breach by any person or entity
of any of the terms or conditions set forth in this Consent, or in the event
that it becomes apparent to Banque Paribas that any of the terms or conditions
set forth in this Consent will not be satisfied by September 30, 1997, Banque
Paribas may terminate this Consent by providing written notice to Inland not
less than five (5) days prior to the effective date of such termination.
18. Whenever Inland provides any notice to Crysen pursuant to the Sale
Agreement, or whenever Inland receives any notice from Crysen, Inland shall
simultaneously provide a copy of such notice to Banque Paribas.
19. This Consent is given only for the benefit of Inland and may not be
relied upon by any other individual or entity for any purpose whatsoever.
20. This Consent may be executed in multiple counterparts which, when
taken together, shall constitute a fully executed document.
21. This consent consists of four (4) pages, including the signature page.
IN WITNESS WHEREOF, this Consent Regarding Release of Trust Deed and
Security Agreements is executed on the date and year first set forth above.
BANQUE PARIBAS
By: __________________
Its: _________________
By: __________________
Its: _________________
ACCEPTANCE BY INLAND RESOURCES, INC.
The terms of the foregoing Consent Regarding Release of Trust Deed and
Security Agreements are hereby agreed to and accepted on the date and year first
set forth above.
INLAND RESOURCES, INC.
By: _________________
Its: ________________
AMENDMENT TO
ASSET PURCHASE AND SALE AGREEMENT
________________________________________________________________________________
This Amendment to Asset Purchase and Sale Agreement (this "Amendment") is
made and entered into this 12th day of September, 1997, by Crysen Corporation,
Crysen Refining, Inc., and Sound Refining, Inc. (collectively, "Sellers"), and
Inland Resources, Inc. ("Buyer").
RECITALS
A. Buyer and Sellers entered into an Asset Purchase and Sale Agreement
(the "Sale Agreement", the terms of which are incorporated herein by this
reference), dated July 14, 1997 providing for the purchase by Buyer of Sellers'
refineries located in Woods Cross, Utah and Tacoma, Washington (the
"Refineries") and related assets.
B. Buyer and Sellers wish to amend the Sale Agreement.
C. Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings assigned to them in the Sale Agreement.
TERMS OF AMENDMENT
For valuable consideration, the receipt of which is hereby acknowledged,
Buyer and Sellers agree as follows.
1. The Sale Agreement is hereby amended as follows:
a. Crysen Corporation is deleted from the definitions of "Seller"
and "Sellers," which terms shall hereafter mean CRI and SRI, individually
as "Seller" and collectively as "Sellers."
b. Paragraph 5.1 of the Sale Agreement is amended to read as
follows:
The purchase price for the Assets, other than the Inventories and the Net
A/R Amount, shall be Seven Million Dollars ($7,000,000.00), subject to an
increase (or reduction) from $7,000,000.00, by an amount equal to the
reduction (or increase) in the Net Borrowing Base Liquidation Value (as
defined on Exhibit "A" attached to this Amendment), as of 12:01 a.m. on
the Closing Date, from the Net Borrowing Base Liquidation Value as of 11:59
p.m. on September 30, 1997.
1
c. Paragraph 5.6 of the Sale Agreement is amended to read as
follows:
Buyer shall pay or cause to be paid on or prior to September 15, 1997, to
Banque Paribas, for the account of Sellers, by wire transfer or immediately
available funds, a $250,000.00 down payment, which down payment shall not
be refundable to Buyer, under any circumstances, notwithstanding Paragraph
21.4 or any other provisions of this Agreement, unless (a) all conditions
set forth in the Consent described in Paragraph 14.1.10 below, as amended,
have been satisfied; and (b) Banque Paribas refuses to give its consent to
---
the sale of the Refineries. In addition, Buyer shall pay or cause to be
paid on or prior to October 1, 1997, to Banque Paribas, for the account of
Sellers, by wire transfer or immediately available funds, a $1,000,000.00
down payment, which down payment shall not be refundable to Inland, under
any circumstances, unless (a) all conditions set forth in the Consent
described in Paragraph 14.1.10 below, as amended, have been satisfied; and
---
(b) Banque Paribas refuses to give its consent to the sale of the
Refineries. The term "Earnest Money Deposit," as used in this Agreement
shall mean the $250,000.00 nonrefundable down payment, the $1,000,000.00
nonrefundable down payment, and any other down payments made by Buyer.
d. Paragraph 6.1 of the Sale Agreement is amended to read as
follows:
The Closing (the "Closing") of the transactions contemplated hereby shall
be held on or prior to December 24, 1997 (the "Closing Date"), at 10:00
a.m., Mountain Standard Time, at the offices of Sellers, or at such other
location as the parties may agree.
e. Paragraph 19 of the Sale Agreement is amended by adding the
following to the end of such paragraph:
Banque Paribas shall simultaneously be provided with copies of the Final
Settlement Statement, Buyer's written report and any other documents or
correspondence exchanged between Buyer and Sellers relating to the Final
Settlement Statement. Any payments by Buyer as a result of the Final
Settlement Statement shall be paid to Banque Paribas, for the account of
Sellers.
f. Paragraph 21.4 of the Sale Agreement is amended by replacing the
second sentence thereof with the following:
If (i) Closing does not occur, (ii) this Agreement is terminated pursuant
to Section 21.1, (iii) Buyer is not then in breach of any of the covenants
or agreements contained in this Agreement, (iv) all conditions set forth in
the Consent described in Paragraph 14.1.10 above, as amended, have been
satisfied; and (v) Banque Paribas refuses to give its consent to the sale
---
of the Refineries, then the Earnest
2
Money Deposit (if such Earnest Money Deposit has been paid pursuant to
Section 5.6 hereof), together with any accrued interest, shall be refunded
to Buyer as Buyer's sole remedy hereunder (subject to Section 21.3 hereof).
2. Except as expressly amended by Section 1 above, and notwithstanding
the provisions of the letter agreement among the parties dated July 14, 1997,
the Sale Agreement shall remain in full force and effect as originally executed.
3. The Exhibits to the Sale Agreement shall be finalized and approved by
Sellers and Buyer, and in form and substance acceptable to Banque Paribas, by
not later than September 24, 1997.
4. The filings and requests to be made pursuant to Section 13.1 of the
Sale Agreement shall be made not later than October 24, 1997.
5. Buyer hereby notifies Sellers that it is not terminating the Sale
---
Agreement pursuant to Paragraph 9 thereof. Buyer hereby waives any right it may
have to terminate the Sale Agreement pursuant to Paragraph 9 of the Sale
Agreement.
6. This Amendment may be executed in multiple counterparts which, when
taken together, shall constitute a fully executed document.
IN WITNESS WHEREOF, this Amendment to Asset Purchase and Sale Agreement is
executed on the date and year first set forth above.
CRYSEN CORPORATION
By: __________________
Its:__________________
CRYSEN REFINING, INC.
By: __________________
Its:__________________
SOUND REFINING, INC.
By: __________________
Its:__________________
INLAND RESOURCES, INC.
By: __________________
Its:__________________
3
AMENDMENT TO
CONSENT REGARDING RELEASE OF
TRUST DEED AND SECURITY AGREEMENTS
________________________________________________________________________________
This Amendment to Consent Regarding Release of Trust Deed and Security
Agreements (this "Amendment") is made and entered into this 12th day of
September, 1997, by Banque Paribas for and in favor of Inland Resources, Inc.
("Inland"), which hereby accepts and agrees to the terms of this Consent.
RECITALS
A. Inland has entered into an Asset Purchase and Sale Agreement (the
"Sale Agreement"), dated July 14, 1997, with Crysen Corporation, Crysen
Refining, Inc. ("CRI"), and Sound Refining, Inc. ("SRI") (Crysen Corporation,
CRI and SRI are hereafter collectively referred to as "Crysen"), providing for
the purchase by Inland of Crysen's refineries located in Woods Cross, Utah and
Tacoma, Washington (the "Refineries") and related assets.
B. Banque Paribas has a first priority lien on the Refineries and all
other assets of Crysen.
C. Pursuant to a Consent regarding Release of Trust Deed and Security
Agreement dated July 14, 1997 (the "Consent"), between Banque Paribas and
Inland, and subject to the terms and conditions thereof, Banque Paribas gave its
consent to the sale contemplated by the Sale Agreement and Banque Paribas set
forth the terms on which it would agree to release its lien on the Assets. The
terms of the Consent are incorporated herein by this reference.
D. Inland has entered into an Amendment to the Sale Agreement (the "Sale
Agreement Amendment," a copy of which is attached hereto as Exhibit "A"), dated
the date hereof, with Crysen, providing for, among other things, an extension of
the closing deadline.
E. Inland has requested that Banque Paribas amend the Consent so as to
give its consent to the sale contemplated by the Sale Agreement, as amended by
the Sale Agreement Amendment.
D. Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings assigned to them in the Sale Agreement, as
amended by the Sale Agreement Amendment.
TERMS OF AMENDMENT TO CONSENT
1. Banque Paribas hereby represents to Inland that it is prepared to
consent to the sale of the Refineries on the terms set forth in the Sale
Agreement, as amended by the Sale
----------------------
1
Agreement Amendment, and to release its lien on the Assets upon Closing, on the
- -------------------
terms and conditions set forth in the Consent, as amended by the amendments set
--------------------------------
forth below:
- -----------
a. All references to the "Sale Agreement" in the Consent
and in this Amendment shall mean the Sale Agreement, as amended
----------
by the Sale Agreement Amendment.
-------------------------------
b. Paragraph 1 of the Consent is amended to read as follows:
The sale of the Assets has been fully effectuated in accordance
with the terms of the Sale Agreement on or before December 24,
1997, or such later date as may be agreed to in writing by Banque
Paribas in its sole discretion. As provided in amended paragraph
5.1 of the Sale Agreement, the Fixed Asset Purchase Price shall
be increased (or reduced) from $7,000,000.00, by an amount equal
to the reduction (or increase) in the Net Borrowing Base
Liquidation Value (as defined on Exhibit "B" attached hereto), as
of 12:01 a.m. on the Closing Date, from the Net Borrowing Base
Liquidation Value as of 11:59 p.m. on September 30, 1997. In
addition, if at any time or times prior to Closing, the Net
Borrowing Base Liquidation Value, as determined from time to
time, falls more than $500,000.00 below the Net Borrowing Base
Liquidation Value as of 11:59 p.m. on September 30, 1997, Inland
shall, upon demand by Banque Paribas, pay to Banque Paribas, for
the account of CRI and SRI, an additional down payment or down
payments toward the Purchase Price, in an amount equal to the
amount by which the Net Borrowing Base Liquidation Value falls
more than $500,000.00 below the Net Borrowing Base Liquidation
Value as of 11:59 p.m. on September 30, 1997, which down
payment(s) shall not be refundable to Inland, under any
circumstances, unless (a) all conditions set forth in the
Consent, as amended by this Amendment, have been satisfied; and
---
(b) Banque Paribas refuses to give its consent to the sale of the
Refineries.
c. Paragraph 3 of the Consent is amended to read as follows:
The Exhibits to the Sale Agreement have been finalized and
approved by CRI, SRI and Inland, and the Exhibits are in form and
substance acceptable to Banque Paribas, by not later than
September 24, 1997. Banque Paribas or its agents must have the
opportunity to independently verify the final inventory.
d. Paragraph 4 of the Consent is amended to read as follows:
Banque Paribas receives at closing, in consideration for the
release of its liens, one hundred percent (100%) of the Fixed
Asset Purchase Price (in an amount not less than $7,000,000.00,
plus or minus any adjustments required pursuant to amended
paragraph 5.1 of the Sale Agreement), the Inventory Purchase
Price and
2
the Accounts Receivable Purchase Price. All letters of credit
issued by Banque Paribas covering inventory not received by CRI
or SRI by 12:01 a.m. on the Closing must have been canceled or
totally cash collateralized by Inland.
e. Paragraph 12 of the Consent is amended to read as follows:
The $250,000.00 Down Payment referred to in amended paragraph 5.6
of the Sale Agreement, shall be paid to Banque Paribas, for the
account of CRI and SRI, on or before September 15, 1997, and
shall not be refundable to Inland, under any circumstances,
unless (a) all conditions set forth in the Consent, as amended by
this Amendment, have been satisfied; and (b) Banque Paribas
---
refuses to give its consent to the sale of the Refineries. The
$1,000,000.00 Down Payment referred to in paragraph 5.6 of the
Sale Agreement, shall be paid to Banque Paribas, for the account
of CRI and SRI, on or before October 1, 1997, and shall not be
refundable to Inland, under any circumstances, unless (a) all
conditions set forth in the Consent, as amended by this
Amendment, have been satisfied; and (b) Banque Paribas refuses to
---
give its consent to the sale of the Refineries.
f. Paragraph 17 of the Consent is amended to read as follows:
In addition to Banque Paribas's right to terminate this Consent
pursuant to paragraph 15 above, in the event of a breach by any
person or entity of any of the terms or conditions set forth in
this Consent, as amended by this Amendment, or in the event that
it becomes apparent to Banque Paribas that any of the terms or
conditions set forth in the Consent, as amended by this
Amendment, will not be satisfied by December 24, 1997, Banque
Paribas may terminate this Consent, as amended by this Amendment,
by providing written notice to Inland not less than five (5) days
prior to the effective date of such termination.
g. A new paragraph 22 is added to the Consent to read as follows:
All filings and requests to be made pursuant to Section 13.1 of the Sale
Agreement have been made on or prior to October 24, 1997, or such later
date as is previously approved in writing by Banque Paribas.
2. Except as expressly amended by Section 1 above, the Consent shall
remain in full force and effect as originally executed.
3. Inland hereby restates each of the representations and acknowledgments
made in the Consent.
4. Nothing contained in this Amendment shall be deemed to require Banque
Paribas to make advances or to extend credit to Crysen between the date hereof
and Closing and Banque
3
Paribas reserves the right to exercise any and all rights and remedies pursuant
to the Credit Agreement dated January 31, 1995 between Banque Paribas and
Crysen, or any associated notes, trust deeds, security agreements, guarantees,
documents, or agreements (collectively, the "Credit Documents"), including, but
not limited to, the rights (a) to accelerate Crysen's obligations, (b) to
foreclose on any or all of the Assets or other assets of Crysen, or (c) to
exercise any other rights with respect to the Assets, in any of which events
Banque Paribas may terminate this Consent by providing written notice to Inland.
This Amendment does not modify in any respect any of Crysen's obligations under
any of the Credit Documents, nor does it modify in any respect, or impose any
limitation whatsoever on, Banque Paribas's rights and remedies under any of the
Credit Documents. Banque Paribas does not waive any rights or remedies under any
of the Credit Documents and hereby expressly reserves any and all such rights
and remedies.
5. This Amendment is given only for the benefit of Inland and may not be
relied upon by any other individual or entity for any purpose whatsoever.
6. This Amendment may be executed in multiple counterparts which, when
taken together, shall constitute a fully executed document.
IN WITNESS WHEREOF, this Amendment to Consent Regarding Release of Trust
Deed and Security Agreements is executed on the date and year first set forth
above.
BANQUE PARIBAS
By: ___________________
Its: __________________
By: ___________________
Its: __________________
ACCEPTANCE BY INLAND RESOURCES, INC.
The terms of the foregoing Amendment to Consent Regarding Release of Trust
Deed and Security Agreements are hereby agreed to and accepted on the date and
year first set forth above.
INLAND RESOURCES, INC.
By: __________________
Its: _________________
4
SECOND AMENDMENT TO
ASSET PURCHASE AND SALE AGREEMENT
________________________________________________________________________________
This Second Amendment to Asset Purchase and Sale Agreement (this
"Amendment") is made and entered into this ___ day of September, 1997, by Crysen
Corporation, Crysen Refining, Inc., and Sound Refining, Inc. (collectively,
"Sellers"), and Inland Resources, Inc. ("Buyer").
RECITALS
A. Buyer and Sellers entered into an Asset Purchase and Sale Agreement,
dated July 14, 1997, as amended by an Amendment to Asset Purchase and Sale
Agreement dated September 12, 1997 (the "Sale Agreement", the terms of which are
incorporated herein by this reference), providing for the purchase by Buyer of
Sellers' refineries located in Woods Cross, Utah and Tacoma, Washington (the
"Refineries") and related assets.
B. Buyer and Sellers wish to further amend the Sale Agreement.
C. Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings assigned to them in the Sale Agreement.
TERMS OF AMENDMENT
For valuable consideration, the receipt of which is hereby acknowledged,
Buyer and Sellers agree as follows.
1. The Sale Agreement is hereby amended as follows:
a. Paragraph 21.4 of the Sale Agreement is amended by adding the
following sentence to the end thereof:
The parties acknowledge that the sole remedy of Crysen or Sellers
for any failure to close by Buyer shall be the termination of
this Agreement pursuant to Section 21.1 and the retention of,
and/or the right to receive, the Earnest Money Deposit (including
the $250,000.00 down payment, the $1,000,000.00 down payment and
any other down payments required to be made by Buyer pursuant to
amended Paragraph 1 of the Consent regarding Release of Trust
Deed and Security Agreement dated July 14, 1997, as amended by an
Amendment dated September 12, 1997, between Banque Paribas and
Buyer), together with any costs and expenses (including
reasonable attorneys' fees) incurred in connection with the
recovery or collection of any such amounts, and Crysen and
Sellers waive any right to specific performance or to any claim
for other damages or remedies.
1
2. Except as expressly amended by Section 1 above, and notwithstanding
the provisions of the letter agreement among the parties dated July 14, 1997,
the Sale Agreement shall remain in full force and effect as originally executed.
3. This Amendment may be executed in multiple counterparts which, when
taken together, shall constitute a fully executed document.
IN WITNESS WHEREOF, this Amendment to Asset Purchase and Sale Agreement is
executed on the date and year first set forth above.
CRYSEN CORPORATION
By: ___________________
Its: __________________
CRYSEN REFINING, INC.
By: ___________________
Its: __________________
SOUND REFINING, INC.
By: ___________________
Its: __________________
INLAND RESOURCES, INC.
By: ___________________
Its: __________________
BANQUE PARIBAS hereby consents to the foregoing Second Amendment to Asset
Purchase and Sale Agreement on the date and year first set forth above.
BANQUE PARIBAS
By: ___________________
Its: __________________
By: ___________________
Its: __________________
2
THIRD AMENDMENT TO
ASSET PURCHASE AND SALE AGREEMENT
________________________________________________________________________________
This Third Amendment to Asset Purchase and Sale Agreement (this
"Amendment") is made and entered into this ___ day of December, 1997, by Crysen
Refining, Inc.("CRI"), Sound Refining, Inc.("SRI"), and Inland Resources Inc.
("Buyer"). CRI and SRI are collectively referred to herein as "Sellers."
RECITALS
A. Buyer and Sellers, together with Crysen Corporation, entered into an
Asset Purchase and Sale Agreement, dated July 14, 1997, as amended by an
Amendment to Asset Purchase and Sale Agreement dated September 12, 1997, and by
a Second Amendment to Asset Purchase and Sale Agreement dated September 26, 1997
(the "Sale Agreement", the terms of which are incorporated herein by this
reference), providing for the purchase by Buyer of Sellers' refineries located
in Woods Cross, Utah and Tacoma, Washington (the "Refineries") and related
assets. Pursuant to the September 12, 1997 Amendment, Crysen Corporation is no
longer a party to the Sale Agreement.
B. Buyer and Sellers wish to further amend the Sale Agreement.
C. Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings assigned to them in the Sale Agreement.
TERMS OF AMENDMENT
For valuable consideration, the receipt of which is hereby acknowledged,
Buyer and Sellers agree as follows.
1. The Sale Agreement is hereby amended as follows:
a. Paragraph 5.1 of the Sale Agreement is amended to read as follows:
The purchase price for the Assets, other than the Inventory Purchase Price,
the Net A/R Amount, and the additional amount referred to in Section 5.4 of
this Agreement, shall be Seven Million Dollars ($7,000,000.00), subject to
an increase (or reduction) from $7,000,000.00, by an amount equal to the
reduction (or increase) in the Net Working Capital Realization (as defined
on Exhibit "A" attached to this Amendment), as of 12:01 a.m. on the Closing
Date, from the Net Working Capital Realization as of 11:59 p.m. on
September 30, 1997 (the "Fixed Assets Purchase Price").
b. Paragraph 5.4 of the Sale Agreement is amended to read as follows:
Buyer shall pay to Banque Paribas, for the account of Sellers, in
immediately available funds and pursuant to written instructions from
Banque Paribas, at Closing as the
1
purchase price for the Assets the sum of the Fixed Assets Purchase Price,
the Inventory Purchase Price, the Net A/R Amount, and $1,141,797.00, as
adjusted pursuant to Section 16 hereof and less the Earnest Money Deposit
referred to in Section 5.6 hereof (collectively, the "Purchase Price").
c. Paragraph 6.1 of the Sale Agreement is amended to read as
follows:
The Closing (the "Closing") of the transactions contemplated hereby shall
be held on or prior to DECEMBER 24, 1997 (the "Closing Date"), at 10:00
a.m., Mountain Standard Time, at the offices of Sellers, or at such other
location as the parties may agree.
d. Exhibit "G" of the Sale Agreement, setting forth the allocation
of the Purchase Price, is amended by replacing it in its entirety with
Exhibit "G-1" attached hereto.
2. Sellers hereby consent to the assignment by Buyer of certain rights
and liabilities associated with the real property described on Exhibit "A-2" to
the Sale Agreement and other assets of SRI to San Jacinto Carbon Company
("SJCC"), in accordance with the terms of the Assignment and Assumption
Agreement attached hereto as Exhibit "B". Sellers acknowledge and agree that the
purchase price to be paid by SJCC to Sellers shall be in the form of an
assumption by SJCC of $1,500,000 of Seller's obligation to Banque Paribas (which
obligation will simultaneously be sold by Banque Paribas to Inland Refining,
Inc., for a cash purchase price of $1,500,000).
3. Sellers hereby consent to the assignment by Buyer of certain rights
and liabilities associated with the real property described on Exhibit "A-3" to
the Sale AGREEMENT and to the Cowboy Obligations to Refinery Technologies, Inc.
("RTI"), in accordance with the terms of the Assignment and Assumption Agreement
attached hereto as Exhibit "C". No portion of the Purchase Price shall be paid
by RTI, Inland having made a determination that the value of the assets being
assigned to RTI is equal to the liabilities being assumed by RTI.
4. Except as expressly amended hereby, and notwithstanding the provisions
of the letter agreement among the parties dated July 14, 1997, the Sale
Agreement shall remain in full force and effect as originally executed.
5. This Amendment may be executed in multiple counterparts which, when
taken together, shall constitute a fully executed document.
IN WITNESS WHEREOF, this Third Amendment to Asset Purchase and Sale
Agreement is executed on the date and year first set forth above.
CRYSEN REFINING, INC.
By: __________________
Its: _________________
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SOUND REFINING, INC.
By: _________________
Its: ________________
INLAND RESOURCES INC.
By: _________________
Its: ________________
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THIRD AMENDMENT TO
CONSENT REGARDING RELEASE OF
TRUST DEED AND SECURITY AGREEMENTS
________________________________________________________________________________
This Third Amendment to Consent Regarding Release of Trust Deed and
Security Agreements (this "Amendment") is made and entered into this ___ day of
December, 1997, by Banque Paribas for and in favor of Inland Resources Inc.
("Inland"), which hereby accepts and agrees to the terms of this Consent.
RECITALS
A. Inland has entered into an Asset Purchase and Sale Agreement, dated
July 14, 1997, as amended by an Amendment to Asset Purchase and Sale Agreement
dated September 12, 1997, and by a Second Amendment to Asset Purchase and Sale
Agreement dated September 26, 1997 (the "Sale Agreement"), with Crysen
Corporation, Crysen Refining, Inc. ("CRI"), and Sound Refining, Inc. ("SRI")
(CRI and SRI are hereafter collectively referred to as "Crysen"), providing for
the purchase by Inland of Crysen's refineries located in Woods Cross, Utah and
Tacoma, Washington (the "Refineries") and related assets. Pursuant to the
September 12, 1997 Amendment, Crysen Corporation is no longer a party to the
Sale Agreement.
B. Banque Paribas has a first priority lien on the Refineries and all
other assets of Crysen.
C. Pursuant to a Consent Regarding Release of Trust Deed and Security
Agreement dated July 14, 1997, as amended by an Amendment dated September 12,
1997 and by a Second Amendment dated September 26, 1997 (the "Consent"), between
Banque Paribas and Inland, and subject to the terms and conditions thereof,
Banque Paribas gave its consent to the sale contemplated by the Sale Agreement
and Banque Paribas set forth the terms on which it would agree to release its
lien on the Assets. The terms of the Consent are incorporated herein by this
reference.
D. Inland has entered into a Third Amendment to the Sale Agreement (the
"Third Sale Agreement Amendment," a copy of which is attached hereto as Exhibit
"A"), dated the date hereof, with Crysen.
E. Inland has requested that Banque Paribas further amend the Consent so
as to give its consent to the sale contemplated by the Sale Agreement, as
amended by the Third Sale Agreement Amendment.
D. Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings assigned to them in the Sale Agreement, as
amended by the Third Sale Agreement Amendment.
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TERMS OF AMENDMENT TO CONSENT
1. Banque Paribas hereby represents to Inland that it is prepared to
consent to the sale of the Refineries on the terms set forth in the Sale
Agreement, as amended by the Third Sale Agreement Amendment, and to release its
lien on the Assets upon Closing, on the terms and conditions set forth in the
Consent, as amended by the amendments set forth below:
a. All references to the "Sale Agreement" in the Consent and in this
Amendment shall mean the Sale Agreement, as amended by the First, Second
and Third Sale Agreement Amendments.
b. Paragraph 1 of the Consent is amended to read as follows:
The sale of the Assets has been fully effectuated in accordance
with the terms of the Sale Agreement on or before DECEMBER 24,
1997, or such later date as may be agreed to in writing by Banque
Paribas in its sole discretion. As provided in amended paragraph
5.1 of the Sale Agreement, the Fixed Assets Purchase Price shall
be increased (or reduced) from $7,000,000.00, by an amount equal
to the reduction (or increase) in the Net Working Capital
Realization (as defined on Exhibit "B" attached to this Consent),
as of 12:01 a.m. on the Closing Date, from the Net Working
Capital Realization as of 11:59 p.m. on September 30, 1997.
In addition, if as of 11:59 p.m. on October 31, 1997, the Net
Working Capital Realization has fallen more than $500,000.00
below the Net Working Capital Realization as of 11:59 p.m. on
September 30, 1997, Inland shall, upon demand by Banque Paribas,
pay to Banque Paribas, for the account of CRI and SRI, an
additional down payment toward the Purchase Price, in an amount
equal to the amount by which the Net Working Capital Realization
has fallen more than $500,000.00 below the Net Working Capital
Realization as of 11:59 p.m. on September 30, 1997, which down
payment shall not be refundable to Inland, under any
circumstances, unless (a) all conditions set forth in the
Consent, as amended by this Amendment, have been satisfied; and
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(b) Banque Paribas refuses to give its consent to the sale of the
Refineries.
c. Paragraph 4 of the Consent is amended to read as follows:
Banque Paribas receives at closing, in consideration for the
release of its liens, one hundred percent (100%) of the Fixed
Assets Purchase Price (in an amount not less than $7,000,000.00,
plus or minus any adjustments required pursuant to amended
paragraph 5.1 of the Sale Agreement), the Inventory Purchase
Price, the Accounts Receivable Purchase Price, and
$1,141,797.00). All letters of credit issued by Banque Paribas
covering inventory not received by CRI or SRI by 12:01 a.m. on
the Closing must have been canceled or totally cash
collateralized by Inland.
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d. Paragraph 17 of the Consent is amended to read as follows:
In addition to Banque Paribas's right to terminate this Consent
pursuant to paragraph 15 above, in the event of a breach by any
person or entity of any of the terms or conditions set forth in
this Consent, as amended by this Amendment, or in the event that
it becomes apparent to Banque Paribas that any of the terms or
conditions set forth in the Consent, as amended by this
Amendment, will not be satisfied by DECEMBER 24, 1997, Banque
Paribas may terminate this Consent, as amended by this Amendment,
by providing written notice to Inland not less than five (5) days
prior to the effective date of such termination.
2. Banque Paribas hereby consent to the assignment by Inland of certain
rights and liabilities associated with the real property described on Exhibit
"A-2" to the Sale Agreement and other assets of SRI to San Jacinto Carbon
Company ("SJCC"), in accordance with the terms of the Assignment and Assumption
Agreement attached hereto as Exhibit "C". At Closing, Inland shall purchase
from Banque Paribas, for a cash purchase price of $1,500,000, the $1,500,000
promissory note which is being assumed by SJCC.
3. Banque Paribas hereby consent to the assignment by Inland of certain
rights and liabilities associated with the real property described on Exhibit
"A-3" to the Sale Agreement and to the Cowboy Obligations to Refinery
Technologies, Inc. ("RTI"), in accordance with the terms of the Assignment and
Assumption Agreement attached hereto as Exhibit "D". No portion of the Purchase
Price shall be paid by RTI, Inland having made a determination that the value of
the assets being assigned to RTI is equal to the liabilities being assumed by
RTI.
4. Except as expressly amended hereby, the Consent shall remain in full
force and effect as originally executed.
5. Inland hereby restates each of the representations and acknowledgments
made in the Consent.
6. Nothing contained in this Amendment shall be deemed to require Banque
Paribas to make advances or to extend credit to Crysen between the date hereof
and Closing and Banque Paribas reserves the right to exercise any and all rights
and remedies pursuant to the Credit Agreement dated January 31, 1995 between
Banque Paribas and Crysen, or any associated notes, trust deeds, security
agreements, guarantees, documents, or agreements (collectively, the "Credit
Documents"), including, but not limited to, the rights (a) to accelerate
Crysen's obligations, (b) to foreclose on any or all of the Assets or other
assets of Crysen, or (c) to exercise any other rights with respect to the
Assets, in any of which events Banque Paribas may terminate this Consent by
providing written notice to Inland. This Amendment does not modify in any
respect any of Crysen's obligations under any of the Credit Documents, nor does
it modify in any respect, or impose any limitation whatsoever on, Banque
Paribas's rights and remedies under any of the Credit Documents.
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Banque Paribas does not waive any rights or remedies under any of the Credit
Documents and hereby expressly reserves any and all such rights and remedies.
7. This Amendment is given only for the benefit of Inland and may not be
relied upon by any other individual or entity for any purpose whatsoever.
8. This Amendment may be executed in multiple counterparts which, when
taken together, shall constitute a fully executed document.
IN WITNESS WHEREOF, this Third Amendment to Consent Regarding Release of
Trust Deed and Security Agreements is executed on the date and year first set
forth above.
BANQUE PARIBAS
By: ___________________
Its: __________________
By: ___________________
Its: __________________
ACCEPTANCE BY INLAND RESOURCES INC.
The terms of the foregoing Third Amendment to Consent Regarding Release of
Trust Deed and Security Agreements are hereby agreed to and accepted on the date
and year first set forth above.
INLAND RESOURCES INC.
By: ___________________
Its: __________________
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