EXHIBIT (e)(5)
[Execution Copy]
ADMINISTRATIVE & INFORMATION
SERVICES AGREEMENT
between
GULF INDONESIA RESOURCES LIMITED
AND
CONOCO INC.
THIS ADMINISTRATIVE & INFORMATION SERVICES AGREEMENT (this "Agreement") is made
and entered into this 5th day of March 2002 (the "Effective Date") By and
between:
1) GULF INDONESIA RESOURCES LIMITED, a corporation continued and existing
under the laws of New Brunswick, Canada and having its registered office at
Wisma 46-Kota BNI ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("Gulf"); and
2) CONOCO INC., a corporation organized and existing under the laws of
Delaware U.S.A. and having its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ("Conoco");
Gulf and Conoco are referred to either individually as "Party" or
collectively as "Parties" and shall include their respective successors.
Either Gulf or Conoco may, as directed by the circumstances, be either a
Party who requests services (a "Requesting Party") or a Party who provides
services (a "Providing Party") pursuant to the terms of this Agreement.
WHEREAS:
A) Gulf and Conoco are both primarily engaged in the oil and gas business,
including the acquisition, development, exploration and production of oil
and gas properties; and
B) Seventy-two percent (72%) of the shares of Gulf are indirectly owned or
controlled by Conoco Inc.; and
C) In order to maximize shareholder value and in an effort to better manage
the affairs of each Party in a more cost effective and efficient manner the
Parties wish to co-operate as to certain Administrative Services or
Information Services as contemplated herein, provided that said
co-operation is not in conflict with other existing arrangements that
either Gulf or Conoco or any of their Subsidiaries (as defined below) may
as of the Effective Date have with third parties.
NOW THEREFORE, the Parties hereby agree as follows:
1. PURPOSE
This Agreement shall provide a framework under which Gulf and Conoco and
their respective Subsidiaries shall co-operate with each other concerning
the Administrative Services or Information Services contemplated herein for
the mutual benefit of the Parties. For purposes of this Agreement,
"Subsidiary", with respect to a corporation (the "first corporation"),
means a corporation that is controlled (i) by the first corporation, (ii)
by the first corporation and another corporation which is itself controlled
by the first corporation, (iii) by two or more corporations, each of which
is controlled by the first corporation, or that is a subsidiary of such a
corporation.
Gulf and Conoco shall each appoint a representative who will act as the
main point of communication between each of them and their respective
Subsidiaries in order to facilitate the activities related to this
Agreement and the provision of Administrative Services or Information
Services contemplated herein.
1
Each Party acknowledges that Perusahaan Pertambangan Minyak ▇▇▇ Gas Bumi
Negara ("PERTAMINA") is currently the manager of oil and gas assets in
Indonesia, and that PERTAMINA has subcontracted through production sharing
contracts the management of such assets to Subsidiaries of Gulf and to
Subsidiaries of Conoco and that, as a result, the actions of Gulf and
Conoco (or their respective Subsidiaries or other Affiliates) hereunder are
subject to the same control by PERTAMINA as would the actions of Gulf or
Conoco in connection with such assets. For purposes of this Agreement, (i)
"PSC" means a production sharing contract between either Gulf or Conoco, as
the case may be, or any of its Subsidiaries and PERTAMINA, and includes any
technical assistance contract, enhanced oil recovery contract, and any
similar contractual arrangement to which Gulf, Conoco or any of its
Subsidiaries may be a party or which it may enter into in the normal course
of its business; and (ii) "Affiliate" means, with respect to a person, any
person that directly or indirectly through one or more intermediaries
controls, is controlled by, or is under common control with, such person,
and the term "control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management, activities
or policies of any person or entity, whether through the ownership of
voting securities, by contract, employment or otherwise but, for greater
certainty, does not include any person deriving such rights through a PSC.
2. AUTHORITY & RESPONSIBILITY OF THE PROVIDING PARTY
2.1 The Providing Party shall have the responsibility to render the
Administrative Services or Information Services as contemplated herein in
support of the business of the Requesting Party (and its Subsidiaries) as
set forth herein. The Providing Party agrees to endeavor to ensure timely
delivery of deliverables in respect of any activities to be carried out
hereunder. The Providing Party shall perform all activities contemplated
hereunder in a prudent manner consistent with generally accepted standards
for the oil and gas business. The Providing Party's activities under this
Agreement shall be specifically subject to the terms hereof and the general
control, direction and supervision of the Requesting Party.
2.2 Both Parties shall use all reasonable efforts to ensure full compliance by
itself and its agents with all applicable laws, ordinances, regulations and
orders relative to the provision of the Administrative Services or
Information Services contemplated herein in each country which may have
jurisdiction over the provision of such Administrative Services or
Information Services.
3. PROVISION OF ADMINISTRATIVE SERVICES
3.1 At the request of the Requesting Party from time to time, the Providing
Party shall provide Administrative Services to the Requesting Party (or one
of its Subsidiaries), subject to the general direction and supervision of
the Requesting Party.
For purposes of this Agreement, "Administrative Services" shall mean the
following:
(a) financial and management consulting services pertaining (i) to accounting
and maintenance of records, (ii) to the extent permitted by applicable
law, preparing and assisting with obtaining and maintaining governmental
approvals as and when necessary
2
under applicable law, and (iii) complying with other applicable laws and
regulations of the Republic of Indonesia or any political subdivision
thereof;
(b) any or all of the administrative services as may be required for the
reasonable conduct of the business of the Requesting Party (and its
Subsidiaries except that for purposes of this Agreement with respect to
Conoco as a Requesting Party the Subsidiaries of Conoco shall not include
Conoco Indonesia or its subsidiaries), including, without limitation, human
resources, audit, accounting, tax, land, communications, investor
relations, insurance, payroll, legal and financial services, public company
reporting obligations and stock exchange requirements;
(c) performing and/or managing evaluation services as may be reasonably
required in connection with prospective acquisitions of properties and
assets by the Requesting Party, including, without limitation, acquisition
screening and due diligence;
(d) assisting the Requesting Party with the selection and supervision of the
such accountants, attorneys, banks, financial advisors, transfer agents,
custodians, underwriters, insurance companies and other persons as may from
time to time be requested by the Requesting Party or may reasonably be
necessary to render services hereunder;
(e) at the request of the Requesting Party, analyzing reports, economic data
and other information relating to the business of the Requesting Party and
its Subsidiaries and periodically reporting to the executive officers or
the Board of Directors of the Requesting Party all such information
obtained and analyzed, including making recommendation with respect
thereto;
(f) maintenance activities, including overseeing and managing the interests of
the Requesting Party in the various partnerships, joint ventures, companies
and other entities in which the Requesting Party has an interest, and
reporting to the executive officers of the Requesting Party any significant
fact or matter which relates to such interests;
(g) providing Conoco, at its request, with relevant information for assessing
the value of, or making decisions with respect to the acquisition, funding,
management or disposition of, existing or future assets or investments of
Gulf; and
(h) all other services and assistance as may be requested by the Requesting
Party and agreed to be provided by the Providing Party from time to time
which are necessary or desirable for the operation of the business of the
Requesting Party and its Subsidiaries, including any other services
performed by Gulf which are not directly billable under this Agreement or
the Technical Services Agreement to a PSC,
3.2 The Parties shall consult with respect to any employees of the Providing
Party (or its other Affiliates) for Administrative Services which the
Providing Party proposes to assign or second to the Requesting Party.
3.3 Subject to Indonesian law, regulation, custom, practice and requirements,
Gulf shall obtain from Conoco (or its other Affiliates) on a non-exclusive
basis all Administrative Services other than those which it is permitted to
provide itself hereunder. Gulf shall not provide any Administrative
Services itself without the prior consent of Conoco, except for such
Administrative Services which are required to be performed by Gulf or such
other
3
designated party in accordance with Indonesian and other applicable law,
regulation, custom, practice and requirements.
4. PROVISION OF INFORMATION SERVICES
4.1 At the request of Gulf from time to time, Conoco shall provide or cause to
be provided Information Services to Gulf (or one of its Subsidiaries),
subject to the general direction and supervision of Gulf.
For purposes of this Agreement, "Information Services" shall mean the
following:
(a) periodic processing of the data and information of Gulf on the
Gulf System and/or on the Conoco System, as applicable, and
provision of information and reports to Gulf arising from such
data and information processing tasks. For purposes of this
Agreement, "Conoco System" means the information processing
systems, hardware, communications equipment, computer programs
and/or data of Conoco, portions of which are used by Conoco to
provide Information Services to Gulf as contemplated by this
Agreement; and (ii) "Gulf System" means the information
processing systems, hardware, communications equipment, computer
programs and data of Gulf including such updates and enhancements
thereto as contemplated by this Agreement.
(b) periodic maintenance and support of the Gulf System including
all liaison with vendors of components thereof and provision of
updates and new versions or releases (as approved by Gulf);
(c) periodic maintenance and support of the portions of the Conoco
System used to provide data and support for Gulf provided that
all decisions regarding the provision of updates and new versions
or releases shall be solely made by Conoco after consultation
with Gulf;
(d) periodic reporting and recommendations on enhancements to and
remedial action in respect of the Gulf System;
(e) implementation of updates, revisions, enhancements and new
versions of components of the Gulf System and provision of
applicable training to the Gulf staff in that respect;
(f) such other information technology or related services as Gulf may
request from time to time and that Conoco agrees to provide.
4.2 The Parties shall consult with respect to any employees of Conoco (or its
other Affiliates) for Information Services which Conoco proposes to assign
or second to Gulf to provide the Information Services.
4
5. REQUESTS FOR ADMINISTRATIVE SERVICES & INFORMATION SERVICES
Any request for Administrative Services or Information Services shall
specify in reasonable written detail the Administrative Services or
Information Services being requested the date or dates on which the
Requesting Party desires such Administrative Services or Information
Services to be supplied or completed and such other information as may be
reasonably necessary or relevant. The Providing Party may request
clarification as to any matter contained in such request, in a timely
manner. Upon receiving a request for Administrative Services or Information
Services, the Providing Party shall reply by submitting a project sheet
that describes the work to be performed, timing, and estimated costs
associated with the performance of the Administrative Services or
Information Services. If the Providing Party is unable to provide the
Requesting Party with the requested Administrative Services or Information
Services in a timely fashion within a mutually agreed fee structure, then
the Requesting Party shall be free to obtain such services from third
parties. If the project sheet is agreed between the Parties, then it shall
be signed by authorized representatives of both Parties, and be
administered pursuant to the terms of this Agreement. The Parties intend
that the Fees for the provision of Administrative Services or Information
Services hereunder shall be limited to the actual total costs, direct and
indirect (including, but not limited to, overhead and administrative costs,
out-of-pocket expenses of the Providing Party for its Administrative
Services or Information Services and its employees, agents and consultants
incurred in connection with the provision of Administrative Services or
Information Services hereunder, amounts paid by a Party to third parties
calculated by reference to the Fees and Indonesian levies and taxes) to the
Providing Party of such Administrative Services or Information Services,
provided that such Fees shall not exceed those which the Requesting Party
would pay to an arms' length third party for services of comparable
quality, quantity and location. It is the intent of the Parties that a
Providing Party and its Subsidiaries, should neither gain a profit nor
suffer a loss as a result of performing the Administrative Services or
Information Services pursuant to this Agreement.
The Requesting Party may at all times and in any event in its discretion
conduct Administrative Services or Information Services separately and/or
in-house. Notwithstanding anything to the contrary set forth herein, the
Requesting Party may use third party service providers to the extent
required by Indonesia law, regulations or custom, or to effect cost
recovery, free of any restriction contained herein.
6. FINANCIAL ADMINISTRATION
When requested to do so in writing by the Requesting Party, and supplied
with all necessary information including a scope of work upon which to base
its budget projection, the Providing Party will provide the Requesting
Party with necessary information to prepare its operating budgets in a
timely manner and in any event no later than six (6) months prior to the
beginning of a fiscal year of the Requesting Party. Prior to the end of
each fiscal year of the Requesting Party during the term of this Agreement,
the Requesting Party shall, to the extent possible, prepare and submit to
the providing Party, a budget (the "Budget") for Administrative Services or
Information Services for the ensuing year. Both Parties shall jointly
employ reasonable efforts to ensure that the annual costs of providing
Administrative Services or Information Services hereunder shall not exceed
the approved Budget either in total or in any one accounting category in
connection with any matters set forth in such Budget.
5
7. CONSULTANTS
The provisions of this Agreement are not exclusive in favor of either
Party, and each Party acknowledges and agrees that they may use third party
consultants to perform certain of the activities outlined in this
Agreement, and they may provide comparable administrative services or
information services to itself or other subsidiaries as requested. The
Parties may mutually agree upon retaining a specific third party consultant
not currently retained by either Party for certain Administrative Services
or Information Services in order to avoid needless cost or duplication.
8. FEES
Fees in connection with Administrative Services or Information Services
provided pursuant to this Agreement ("Fees") shall be billed monthly by the
Providing Party performing such Administrative Services or Information
Services to the Requesting Party, with an Invoice representing all actual
and allocated costs for the previous month to be delivered to the
Requesting Party no later than the 20th of each month. The Requesting Party
shall pay invoices within thirty (30) days from the receipt thereof.
9. AUDIT REPORT
Either Party shall have the right at any time to cause its auditors to
prepare a report to it confirming that the computation of the Fee by a
Party was accurate, and the other Party(s) shall provide all reasonable
cooperation and access to such auditors in the preparation of such report.
At the request of a Party, the other Party(s) shall also provide all
reasonable cooperation and access to PERTAMINA or any government official
in the event that PERTAMINA or such government official shall request or
undertake an audit of any Fees paid hereunder. In the event that any audit
conducted by a Party hereto determines that the Fees were not properly
calculated, the Party against which such determination is made shall have
the right to cause another independent audit to be prepared. In the event
of disagreement between any two such audits, the matter shall be determined
between the Parties hereto pursuant to arbitration in accordance with the
provisions hereof. Upon any ultimate determination, either Party, as the
case may be, shall refund or pay any Fees improperly paid, or not charged,
to the other.
10. TERM AND TERMINATION OF AGREEMENT
10.1 The initial term of this Agreement shall be for a ten (10) year period
beginning on the Effective Date. Thereafter, this Agreement shall
automatically renew for successive five (5) year periods until terminated
in accordance with the terms of this Article 10.
10.2 This Agreement shall be terminated at the earliest of the following
occurrences:
(a) at such time as the Parties shall mutually agree in writing, this
Agreement may be terminated on the terms and dates stipulated in
such writing.
(b) at the expiration of the Initial Term or any Renewal Term, should
either Party elect, with or without cause, to terminate this
Agreement by giving the other party
6
at least twelve (12) months' advance written notice of its intent
to terminate. In such event, after proper notice, this Agreement
shall terminate on the expiry of the Initial Term or the Renewal
Term, as the case may be.
Subject to events of FORCE MAJEURE (as provided in Section 15.8 hereof), in
the event either Party shall fail to discharge any of its material
obligations hereunder, including, without limitation, the obligation to
render Administrative Services or Information Services under the terms of
this Agreement or the "Technical Services" under the Technical Services
Agreement between the parties in a timely and prudent manner, or shall
commit a material breach of this Agreement or the Technical Services
Agreement and such failure, default or breach shall continue for period of
thirty (30) days after the other Party has served written notice of such
default, this Agreement and the Technical Services Agreement may then be
terminated at the option of the non-breaching Party by written notice
therefore to the breaching Party specifying a proposed date of termination
at least thirty (30) days after the date of such notice, it being
understood that such termination right is in addition to any other remedies
that may be available to the aggrieved Party.
Unless otherwise provided in this Section 10.2, either Party may exercise
its right to terminate this Agreement by giving the other Party written
notice specifying a proposed date of termination no more than twelve (12)
months nor less than thirty (30) days after the date of such notice, in
which case this Agreement shall terminate on the date specified in such
notice.
10.3 The termination of this Agreement in accordance with the provisions of
this Article 10 shall have the following effects:
(a) Except for the mutual indemnities set forth in Article 13 and the
covenants and the other provisions herein that by their terms
expressly extend beyond the Term of Agreement, the Parties'
obligations hereunder are limited to the Term of Agreement.
(b) In the event this Agreement is terminated for any reason, the
Providing Party for such Administrative Services or Information
Services shall immediately deliver possession to the Requesting
Party of all assets, books and records of the Requesting Party in
the other Party's possession and shall provide the Requesting
Party with copies of all assets, books and records (including
electronic copies in the format requested by the Requesting Party
and reasonably within the other Party's capability) relating to
the Administrative Services or Information Services that are in
the other Party's possession, at the cost of the Requesting
Party.
(c) Upon termination of this Agreement (for whatever cause, other
than a material breach by a Party of this Agreement), the
Requesting Party shall pay to the Providing Party the amount of
any and all costs and expenses accrued to the date of such
termination which are payable in accordance with the provisions
hereof, together with any costs actually incurred which result
from the termination of this Agreement.
10.4 Notwithstanding termination of this Agreement, each Party shall
remain bound by the provisions of Article 11.2.
7
11. ACCESS TO BOOKS AND RECORDS; CONFIDENTIALITY; CONFLICTS OF INTEREST
11.1 Except as otherwise provided under the Confidentiality Agreement between
the parties dated 15 October 2001, each Party and its duly authorized
representatives shall have complete access to the other Party's offices,
facilities and records wherever located, as necessary in order to
discharge its responsibilities hereunder. All records and materials
furnished pursuant to this Agreement shall at all times during the term of
this Agreement remain the property of the Party providing such records and
materials. The Requesting Party and its duly authorized representatives
shall have complete access to records and other information concerning the
Requesting Party (and its Subsidiaries) used by the Providing Party in the
performance of its duties hereunder
11.2 During the term of this Agreement and for a period of three (3) years
thereafter, any information and data acquired, interpreted, developed or
disclosed in connection with the Administrative Services or Information
Services provided under this Agreement shall be treated by the receiving
Party as confidential and shall not be disclosed by the receiving Party
except to its directors, officers, employees and to the directors,
officers, employees of its Affiliates, and to its consultants, without
the prior written consent of the disclosing Party. Both Parties shall
ensure that the person to whom confidential information is provided is
aware of the confidentiality obligations under this Agreement and shall
ensure that such persons comply with the confidentiality provisions of
this Agreement.
11.3 Conoco undertakes that it shall avoid any conflict of interest between
the interests of its other Subsidiaries and other Affiliates and the
interests of Gulf and its Subsidiaries in dealing with suppliers,
customers and all other persons doing or seeking to do business with Gulf
in connection with the Administrative Services or Information Services
contemplated under this Agreement.
11.4 The provisions contained in Section 11.2 shall survive the termination
of this Agreement.
12. GOVERNING LAW AND DISPUTE RESOLUTION
12.1 This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of New York.
12.2 Any dispute, controversy, or claim arising under this Agreement,
including any disputes as to the construction, performance,
interpretation, breach, termination, enforceability or invalidity of this
Agreement, that cannot be settled amicably by the Parties within thirty
(30) days of receipt by the Parties of a notice of such dispute, shall be
finally settled by a three (3) person arbitration panel under the UNCITRAL
arbitration rules as in force on the date of this Agreement and in
accordance with the following provisions:
(a) The Parties by mutual agreement shall select the three (3) person
panel within thirty (30) days of the notice of the dispute described
above. If the Parties have not selected the three person panel within
such thirty (30) day period, then the entire panel shall be selected
by the Secretary-General of the Permanent Court of Arbitration at the
Hague (provided that the requirements set forth in clause (b) below
are satisfied);
8
(b) Each arbitrator shall be fluent in English and shall be experienced in
the oil and gas industry;
(c) The site of the arbitration shall be in London. The language of the
arbitration shall be English;
(d) The Parties agree that the award made by the panel shall be final and
conclusive and binding upon the Parties;
(e) Any expenses incurred in connection with the appointment of the
arbitrator(s) and the performance of the arbitration shall be shared
equally by the Parties. Each Party shall pay its own expenses incurred
in connection with the arbitration;
(f) The Parties agree that no Party shall have any right to commence or
maintain any suit or legal proceeding until the dispute has been
determined in accordance with these arbitration procedures and then
only for enforcement of the award made in such arbitration. In the
case of a lawsuit or any other legal proceeding being commenced
against any Party to enforce any arbitration award or for any other
purpose related to this Agreement, the Parties agree that they are
subject to the non-exclusive jurisdiction of, and hereby irrevocably
elect permanent domicile at, the District Court of Central Jakarta,
Indonesia. The Parties expressly agree to waive any provisions of any
applicable law or regulation of Indonesia or any competent authority
that provide the possibility to appeal the decision of the arbitrators
so that there shall be no appeal to any court from the decision of the
arbitrators; and
(g) Each of the Parties hereby expressly waives any Indonesian laws and
regulations, decrees or policies having the force of law that would
otherwise give a right to appeal the decision of the panel and the
Parties agree that, in accordance with Article 60 of the Indonesian
Arbitration Law, neither Party shall appeal to any court from the
award or decision contained therein, so that on the decision taken by
the panel there shall be no other Indonesian authority or panel. Each
of the Parties waive the applicability of Articles 48.1 and 73(B) of
the Indonesian Arbitration Law; however, the Parties do acknowledge
among themselves that it is their intent that an arbitration under
this Agreement be completed within one hundred eighty (180) days from
the selection of she three person panel.
13. INDEMNITIES
13.1 Indemnification by Conoco
Conoco shall protect, indemnify, defend and hold harmless Gulf and its
officers, directors, employees, agents, other representatives and
Subsidiaries (together the "Gulf Indemnitees") from any and all
threatened or actual claims, demands, causes of action, suits,
proceedings (formal or informal), losses, damages, fines, penalties,
liabilities, costs and expenses of any nature, including attorney's fees
and court costs, sustained or incurred by or asserted against a Gulf
Indemnitee by any person by reason of or arising out of: (i) any breach
or alleged breach of this Agreement by Conoco, its Affiliates (other than
a Gulf
9
Indemnitee), agents, or employees; or (ii) any act or alleged act of
fraud, willful misconduct or gross negligence of Conoco or its Affiliates
(other than a Gulf Indemnitee) or any of their respective employees,
officers, directors or agents, or (iii) acts outside, or omissions in,
the scope of Conoco's or its Subsidiary's authorized duties and
responsibilities contained herein. In case any action or proceeding shall
be brought against a Gulf Indemnitee in respect of which indemnification
may be sought against Conoco pursuant to this Section 13.1, then Conoco,
upon receipt of notice from Gulf, shall defend such action or proceeding
by counsel reasonably satisfactory to Gulf and Conoco, and Conoco shall
pay for all expenses therefore unless such action or proceeding is
resisted and defended by counsel for any carrier of public liability
insurance that benefits Gulf or Conoco. Gulf shall promptly give written
notice to Conoco when a claim is made against a Gulf Indemnitee for which
indemnity is owed pursuant to this Section 13.1. Conoco shall participate
at its own expense on defense of such claims, but Gulf shall have the
right to employ its own separate counsel. Gulf shall assist Conoco in the
defense of any claim for which Conoco owes indemnification hereunder and
is undertaking to provide a defense, by making available to Conoco such
records and personnel as may be reasonably required in the defense of
such claim.
13.2 Indemnification by Gulf
Gulf shall protect, indemnify, defend and hold harmless Conoco and its
officers, directors, employees, agents, other representatives and
Subsidiaries (together the "Conoco Indemnitees") from any and all
threatened or actual claims, demands, causes of action, suits,
proceedings (formal or informal), losses, damages, fines, penalties,
liabilities, costs and expenses of any nature, including attorney's fees
and court costs, sustained or incurred by or asserted against a Conoco
Indemnitee by any person by reason of or arising out of: (i) any breach
or alleged breach of this Agreement by Gulf, its Affiliates (other than a
Conoco Indemnitee), agents, or employees; or (ii) any act or alleged act
of fraud, willful misconduct or gross negligence of Gulf or its
Affiliates (other than a Conoco Indemnitee) or any of their respective
employees, officers, directors or agents, or (iii) acts outside, or
omissions in, the scope of Gulf's or its Subsidiary's authorized duties
and responsibilities contained herein. In case any action or proceeding
shall be brought against a Conoco Indemnitee in respect of which
indemnification may be sought against Gulf pursuant to this Section 13.2,
then Gulf, upon receipt of notice from Conoco, shall defend such action
or proceeding by counsel reasonably satisfactory to Conoco and Gulf, and
Gulf shall pay for all expenses therefore unless such action or
proceeding is resisted and defended by counsel for any carrier of public
liability insurance that benefits Conoco or Gulf. Conoco shall promptly
give written notice to Gulf when a claim is made against a Conoco
Indemnitee for which indemnity is owed pursuant to this Section 13.2.
Gulf shall participate at its own expense on defense of such claims, but
Conoco shall have the right to employ its own separate counsel. Conoco
shall assist Gulf in the defense of any claim for which Gulf owes
indemnification hereunder and is undertaking to provide a defense, by
making available to Gulf such records and personnel as may be reasonably
required in the defense of such claim.
14. NOTICES
14.1 Except as otherwise specifically provided herein, all notices and
communications under this Agreement shall be deemed to have been properly
given when received if sent to
10
Parties by email transmission to the appointed representative for each
Party from time to time pursuant to Section 1 hereof, by telex, by
telefax, or by acknowledged hand delivery:
if to Gulf or one of its Subsidiaries that is a Party hereto as
follows:
GULF INDONESIA RESOURCES LIMITED
▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇
▇▇. Jend. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇
▇▇▇▇▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
Attention: Vice President, Finance
Telefax: 62 - 21 5730737
if to Conoco or one of its Subsidiaries that is a Party hereto as
follows:
CONOCO INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
Administrative:
Attention: Assistant to the President--Exploration Production AAME
Telefax: ▇-▇▇▇-▇▇▇-▇▇▇▇
Information Management:
Attention: Upstream IM Manager
Telefax: ▇-▇▇▇-▇▇▇-▇▇▇▇
14.2 Gulf and Conoco may by giving notice thereof to the other change of
its address for notice at any time.
15. MISCELLANEOUS
15.1 It is not the intention of the Parties to create, nor shall this
Agreement be deemed or construed to create a partnership, joint
venture, association, trust or fiduciary relationship, or to authorize
any Party to act as an agent, servant, or employee for any other Party.
15.2 This Agreement is not intended to and shall not be deemed to impose any
obligations upon the Parties to enter into any further transactions or
impose any other obligation on either Party hereto with respect to
areas of Administrative Services or Information Services hereunder.
Without limiting the foregoing, this Agreement shall not be interpreted
as creating any form of exclusive arrangement between the Parties, nor
shall it place any restrictions on either Party in the conduct of their
normal business.
15.3 Any modification, variation or alteration to the terms of this
Agreement shall be effective and valid if confirmed in writing by the
Parties.
15.4 No assignment of this Agreement or any of the rights or obligations set
forth herein by a Party shall be valid without the specific written
consent of both Gulf and Conoco, which
11
will not be unreasonably withheld. Notwithstanding the foregoing, Gulf
and Conoco and any of their permitted assignees shall have the right to
assign this Agreement to an Affiliate without the consent of the other
Parties hereto, provided that (i) such Affiliate is controlled by Gulf,
or by Conoco, (ii) the ability of Gulf (or its Subsidiaries) or Conoco
(or its other Affiliates) to obtain cost recovery under a relevant PSC
is not thereby lost, and (iii) Gulf or Conoco, as the case may be, shall
remain liable for such assignee's obligations and liabilities under this
Agreement.
15.5 The waiver by a Party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach of the same or any other provisions hereof.
15.6 In the event either Party shall resort to legal action to enforce the
terms and provisions of this Agreement, the prevailing Party may recover
from the other Party the costs of such action including, without
limitation, reasonable attorneys' fees.
15.7 Upon the request of a Party, the other Parties shall execute such
additional instruments and take such additional actions as shall be
necessary to effectuate this Agreement.
15.8 No Party shall be liable nor deemed to be in default for any delay or
failure of performance under this Agreement resulting directly or
indirectly from acts of God, civil or military authority, acts of public
enemy, war accidents, fires, explosions, earthquakes, floods, failure of
transportation, strikes, interruptions by a Party's employees or any
similar or dissimilar cause beyond the reasonable control of the Party
claiming the force majeure.
15.9 If any provision of this Agreement or any application thereof shall be
declared or held to be invalid, illegal or unenforceable in whole or in
part whether generally or in any particular jurisdiction, such provision
shall be deemed to be amended to the extent necessary to cure such
invalidity, illegality or unenforceability, and the validity, legality
or enforceability of the remaining provision of this Agreement, both
generally and in every other jurisdiction, shall not in any way be
affected or impaired thereby.
15.10 No Party shall be liable to the other under this Agreement for direct,
indirect or consequential damages including but not limited to economic
losses, loss of profit or business interruption, loss of contract or
business opportunity.
15.11 The Parties hereto agree that as of the Effective Date hereof, it is in
the best interest of the Parties that this Agreement shall supercede all
terms and conditions of the Administrative Services Agreement dated as
of 1 October 1997 and the Information Services Agreement dated as of 1
October 1997 each between Gulf and Gulf Canada Resources Limited
(presently known as Conoco Canada Inc. and presently an indirectly
wholly-owned subsidiary of Conoco Inc.) as well as all other previous
oral or written discussions, offers, proposals, or positions between the
Parties.
15.12 The Parties hereto acknowledge and agree that additional Subsidiaries of
Gulf may come into existence and/or may become parties to a PSC at any
time and from time to time, and in such event, Gulf shall ensure that
each Subsidiary which is the operator of or party to a PSC becomes a
party hereto. A Subsidiary shall become a party hereto by executing a
counterpart hereof and delivering a copy thereof to each of Gulf and
Conoco, at which
12
time of delivery such Subsidiary shall be deemed to be a Party hereunder
without further formality.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives on the day and year first above written.
For and on behalf of: For and on behalf of:
GULF INDONESIA RESOURCES CONOCO INC.
LIMITED
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- ------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO Title: President-Exploration Production
AAME
13