EXHIBIT 10.4
AGREEMENT FOR PURCHASE AND SALE OF ASSETS (PERU)
[RIG 228]
THIS AGREEMENT made this 6th day of May, 2005.
AMONG:
UNIVERSAL RIG SERVICES CORP. AND ▇▇▇▇▇▇ DRILLING COMPANY INTERNATIONAL LIMITED
(hereinafter collectively referred to as "VENDORS")
-and-
SAXON SERVICES DEL PERU S.A.
(hereinafter referred to as "PURCHASER")
WHEREAS, the Vendors wish to sell, and the Purchaser wishes to purchase,
the Assets upon the terms and conditions of this Agreement.
NOW THEREFORE in consideration of the premises hereto and of the covenants,
warranties, representations, agreements and payments herein set forth and
provided for, the Parties hereto covenant and agree as follows:
1. INTERPRETATION
(a) DEFINITIONS
Unless the context otherwise requires, in this Agreement (including
the premises hereto, this clause and each Schedule) the words and
phrases set forth below shall have the meaning ascribed thereto below,
namely:
"ACCRUED PAYMENTS" shall have the meaning set forth in clause 17;
"ASSETS" means:
(i) Rig 228, as more fully described in Schedule "A" hereto (the
"RIG") presently located in the jurisdiction set out in Schedule
"A" and all related inventory, equipment (including the top drive
associated with the Rig) and tools, including all spares, drill
pipe and collars, handling tools, subs, hand tools and those
other items set out in Schedule "B," but specifically excluding
the Excluded Assets;
(ii) the communications and office equipment described in Schedule "C"
hereto (including licenses related to cell phones but excluding
licenses related to VSAT equipment);
(iii) the Drilling Contract, including all amendments, renewals or
replacements thereof, to the extent (A) any required consent to
assignment has been obtained from the appropriate Person on or
prior to the Closing Date, or (B) such requirement to obtain
consent has been waived by the Purchaser on or prior to the
Closing Date (collectively, the "ASSIGNED DRILLING CONTRACT");
(iv) to the extent transferable, the full benefit of all warranties,
rights, claims and securities held by the Vendors against third
parties in relation to the Assets including, without limitation,
all rights and claims of the Vendors in respect of all
representations, warranties, covenants and indemnities made or
given by third parties to or for the benefit of the Vendors or to
which the Vendors have succeeded;
(v) all customer lists related to the Assets and all other business
and financial records of the Vendors related solely to the
ownership, operation and maintenance of the Assets, excluding the
records described in subclauses (vii) and (viii) of the Excluded
Assets definition;
(vi) the motor vehicles listed on Schedule "D";
"BUSINESS DAY" means any day exclusive of Saturdays, Sundays, days on
which a majority of national banks in Houston, Texas are not open for
business, or statutory holidays in Alberta or Peru;
"CLOSING" means the transfer of the Assets to the Purchaser, the
payment by Purchaser to Vendors of the Purchase Price, the delivery of
all documents required hereby and the completion of all other
transactions contemplated by this Agreement to occur on the Closing
Date;
"CLOSING DATE" means the date on which the Closing occurs, which shall
be 10:00 a.m. on the second Business Day following satisfaction or
waiver of (i) all conditions to the obligations of the Parties to
consummate the transactions contemplated by this Agreement (other than
conditions with respect to actions the Parties will take at the
Closing itself) and (ii) all conditions to the obligations to
consummate the transactions contemplated by the Colombia Purchase
Agreement (other than conditions with respect to actions which, by the
terms of the Colombia Purchase Agreement, the parties thereto will
take at the closing of the transactions contemplated thereby);
"COLOMBIA PURCHASE AGREEMENT" means the Agreement for Purchase and
Sale of Assets (Colombia), dated of even date herewith, by and between
the Colombia branch of ▇▇▇▇▇▇ Drilling Company International Limited
and Saxon Services de Panama S.A., Sucursal Colombia;
"DEPOSIT" shall have the meaning set forth in subclause 2(c)(i);
"DRILLING CONTRACT" means the drilling contract associated with the
Rig, as listed on Schedule "E" hereto;
"EMPLOYEES" means those employees of the Vendors listed in Schedule
"F" hereto;
"ENCUMBRANCES" means liens, charges, pledges, options, promises to
sell, lease or otherwise dispose of or encumber, mortgages, deeds of
trust, security interests, claims, restrictions on title or transfer
and other encumbrances of every type and description, whether imposed
by law, agreement, understanding or otherwise, but excluding (i) liens
for taxes or assessments not yet due and payable, (ii) mechanics',
materialmen's, carriers', workers', repairers' and other similar liens
arising or incurred in the ordinary and usual course of business
relating to obligations that are not yet due and payable, (iii) any
liens, encumbrances and other matters
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created or suffered by any landlord, sublandlord, grantor, lessor or
licensor, as applicable, with an interest therein, arising or incurred
in the Ordinary Course of Business and not yet enforceable, and (iv)
such other encumbrances and encroachments the underlying obligations
of which do not exceed $25,000 in the aggregate;
"ENVIRONMENTAL CLAIM" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations
or other adversarial proceedings relating to any Environmental Law or
Environmental Permit including, without limitation (i) any and all
claims by Governmental Authorities for enforcement, cleanup, removal,
response, remedial or other similar actions or damages pursuant to any
applicable Environmental Law and (ii) any and all claims by a third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from unauthorized releases
of Hazardous Substances or arising from alleged injury or threat of
injury to human health, property, or the environment resulting from
exposures to or releases of Hazardous Substances. An "Environmental
Claim" includes, but is not limited to, a common law action, as well
as a proceeding to issue, modify, terminate or enforce the provisions
of an Environmental Permit or to enforce the requirements of
Environmental Law;
"ENVIRONMENTAL LAW" shall mean any federal, state, territorial or
local statute, law, rule, regulation, ordinance, code or policy, of
any Governmental Authority with jurisdiction over the Assets or the
Vendors' operations in Peru (compliance with which is required by law
or if the failure to comply therewith would be reasonably foreseeable
to result in an adverse Environmental Claim), and any binding judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the
protection or preservation of the environment or Hazardous Substances;
"ENVIRONMENTAL PERMITS" shall mean all permits, approvals,
identification numbers, licenses and other authorizations required
under any applicable Environmental Law;
"ESCROW AGENT" means ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP;
"ESCROW AGREEMENT" means the Escrow Agreement dated of even date
herewith among the Parties, ▇▇▇▇▇▇ Drilling Company of Oklahoma
Incorporated, Saxon Services de Panama S.A., Saxon Services de Panama
S.A., Sucursal Colombia, and the Escrow Agent;
"EXCLUDED ASSETS" shall mean (i) all contracts, leases, agreements,
permits and licenses of the Vendors (including the Master Services
Agreement), other than the Drilling Contract, (ii) all accounts and
notes receivable of the Vendors, (iii) all cash and cash equivalents
and the cash balances in the bank accounts of the Vendors, (iv) the
insurance policies of the Vendors, (v) the minute books, stock
transfer books and corporate seals of the Vendors, (vi) all capital
stock and other equity interests owned by the Vendors, (vii) all
financial, accounting, legal, tax and audit records of the Vendors not
related solely to the Assets, (viii) all original tax and audit
records which support the tax returns filed by Vendors, whether or not
related to the Assets, (ix) any intellectual property licenses of the
Vendors, including without limitation, all computer software
(including source and object codes), databases, data models or
structures, algorithms, system architectures and related
documentation, data and manuals, (x) all patents, trademarks, service
marks, trade dress, trade names, logos, copyrights and mask works,
registrations, applications and goodwill associated with the
foregoing, trade secrets, know-how and confidential business
information owned or used by the Vendors (including graphs
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and drawings not solely related to the Assets, price lists, market
studies, business plans and business opportunities), (xi) all rights
in Internet web sites and domain names used by the Vendors, and (xii)
all rights in electronic mail addresses and in telephone, facsimile,
cable or similar numbers used by the Vendors;
"GOVERNMENTAL AUTHORITY" means any governmental entity exercising
executive, legislative, judicial, regulatory or administrative
functions, including any regulatory authority, agency, department,
board, commission or instrumentality of government, with jurisdiction
over the Assets or the Vendors' operations in Peru;
"HAZARDOUS SUBSTANCE" means any material designated by applicable
Environmental Laws as a pollutant, contaminant, or industrial, toxic
or hazardous waste or toxic or hazardous substance;
"LEGAL REQUIREMENT" means any requirement under any federal, state,
local, municipal, or foreign law applicable to the Assets or the
Vendors' operations in Peru;
"MASTER SERVICES AGREEMENT" means the Master Services Agreement dated
February 1, 2002, by and between Universal Rig Services Corp. and
▇▇▇▇▇▇ Drilling Company International Limited;
"NEW YORK CONVENTION" means the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards;
"ORDINARY COURSE OF BUSINESS" means, with respect to each Vendor, the
ordinary course of such Vendor's business consistent with such
Vendor's past custom and practice and in accordance with good oilfield
practice;
"OTHER PURCHASE AGREEMENTS" means, collectively, the Colombia Purchase
Agreement, the Peru Purchase Agreement (250) and the Peru Purchase
Agreement (131 and 145);
"PARTIES" means the parties to this Agreement and "Party" means either
of them;
"PENDING PURCHASE AGREEMENTS" means, collectively, the Colombia
Purchase Agreement and the Peru Purchase Agreement (131 and 145);
"PERSON" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, corporation, unincorporated
association, trust or legal representative;
"PERU ESCROW ACCOUNT" means an escrow account maintained by the Peru
Escrow Agent;
"PERU ESCROW AGENT" means the escrow agent in Peru jointly appointed
by the Parties pursuant to the Peru Escrow Agreement;
"PERU ESCROW AGREEMENT" means an escrow agreement in form and
substance mutually satisfactory to the Parties pursuant to which the
Parties will agree to deposit into the Peru Escrow Account a portion
of the Closing Date Payment equal to the Estimated Withholding
Obligation, which deposit will be disbursed in accordance with the
terms of the Peru Escrow Agreement;
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"PERU PURCHASE AGREEMENT (250)" means the Agreement for Purchase and
Sale of Assets (Peru) dated of even date herewith for the sale of Rig
250, by and between ▇▇▇▇▇▇ Drilling Company of Oklahoma Incorporated
and the Purchaser;
"PERU PURCHASE AGREEMENT (131 AND 145)" means the Agreement for
Purchase and Sale of Assets (Peru) dated of even date herewith for the
sale of Rigs 131 and 145, by and between ▇▇▇▇▇▇ Drilling Company of
Oklahoma Incorporated and Saxon Services de Panama S.A.;
"PLUSPETROL" means Pluspetrol Peru Corporation, S.A.;
"YARD LEASED PREMISES" means the yard leased by ▇▇▇▇▇▇ Drilling
Company of Oklahoma Incorporated, Sucursal del Peru, from ▇▇▇▇▇▇▇ ▇▇▇▇
Ahuanari and located in Iquitos, Peru.
(b) INCORPORATION OF SCHEDULES
Attached hereto are the following schedules:
A - Rig
B - Inventory and Spare Parts
C - Office/Communications Equipment
D - Motor Vehicles
E - Drilling Contracts
F - Employees
G - Credit Enhancements
H - Consents
I - Employment Matters
All schedules hereto are incorporated into and are part of this
Agreement by this reference as fully as though contained in the body
of this Agreement.
(c) SCHEDULE REFERENCES
References herein to a schedule shall mean a reference to a schedule
to this Agreement. References in any schedule to "the Agreement" shall
mean a reference to this Agreement. References in any schedule to
another schedule shall mean a reference to a schedule to this
Agreement.
(d) CLAUSE AND SUBCLAUSE REFERENCES
References herein to an article, clause or subclause shall mean a
reference to an article, clause or subclause within the body of this
Agreement. References herein to a subclause without identifying the
clause of which the subclause referred to is a part shall mean a
reference to such subclause within the same clause as is the subclause
in which such reference is made.
(e) HEADINGS
The headings of clauses and subclauses herein and in the schedules are
inserted for convenience of reference only and shall not affect or be
considered to affect the construction of the provisions hereof.
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(f) GENDER
In this Agreement words importing persons include companies and vice
versa and words importing the masculine gender include the feminine
and neuter genders and vice versa.
(g) CURRENCY
All references herein to currency are references to currency of United
States of America.
(h) KNOWLEDGE
As used herein, the phrase "to the best of Vendors' knowledge" or any
phrase of similar import shall refer to the actual knowledge of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇, without requirement for investigation or
inquiry.
(i) AGREEMENT OF CONSTRUCTION
This Agreement and all other documents executed and delivered pursuant
hereto are the result of negotiations among and have been reviewed by
respective legal counsel for the Parties and are the products of all
Parties. Accordingly, they shall not be construed against any Party
merely because of that Party's involvement in their preparation.
(j) INCONSISTENCIES
If there is a direct contradiction between any provision contained in
the body of this Agreement and those of a schedule to this Agreement,
the provisions contained in the body of this Agreement shall prevail.
Wherever any provision of this Agreement directly contradicts any
provision of any document executed and delivered in connection with
the Closing of the transactions contemplated by this Agreement, the
provisions of this Agreement shall prevail.
2. PURCHASE OF ASSETS
(a) The Vendors hereby agree to sell to the Purchaser and the Purchaser
hereby agrees to purchase from the Vendors, the Assets pursuant to the
terms and conditions of this Agreement. The Vendors are not
transferring, and shall retain all right, title and interest in and
to, the Excluded Assets.
(b) The purchase price (the "PURCHASE PRICE") for the purchase of the
Assets is $8,000,000. Such Purchase Price shall be allocated among the
Assets as follows:
(i) Rig - $7,150,000;
(ii) Inventory and Consumable Spare Parts - $ 850,000.
The allocations set forth above will be used by the Parties as the
basis for reporting asset values and other items for purposes of all
required tax returns and for purposes of the Purchase Price
adjustments contemplated by clause 2(d), and the Parties shall not
assert, in
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connection with any audit or other proceeding with respect to taxes,
or in connection with the procedures set forth in clause 2(d) (except
to the extent asset values are not reflected above), any asset values
or other items inconsistent with the allocations set forth above.
(c) The Purchase Price shall be paid as follows:
(i) a deposit of $800,000 (the "DEPOSIT") shall be paid to the Escrow
Agent contemporaneously with the execution of this Agreement,
which deposit shall be retained by the Escrow Agent in trust in
accordance with the Escrow Agreement, and either applied towards
the Purchase Price on the Closing Date or retained by the Vendors
or returned to the Purchaser in accordance with the terms of this
Agreement; and
(ii) payment of an amount equal to the Purchase Price, reduced by (A)
the amount of the Deposit, (B) the amount of any adjustment
pursuant to clause 2(d), (C) the amount of the Accrued Payments
and (D) the amount of any payments actually received by a Vendor
prior to Closing under the Assigned Drilling Contract that are
directly attributable to demobilization costs that have not been
incurred by such Vendor on or before the Closing Date (the
"CLOSING DATE PAYMENT") on the Closing Date by wire transfer of
immediately available funds to the account(s) designated by the
Vendors.
(d) In respect of the Assets:
(i) If, between April 15, 2005 and the Closing Date, a Vendor
transfers, or suffers the destruction, damage or loss of, any
Asset ("UNAVAILABLE ASSETS"), then the Closing Date Payment shall
be reduced by the value ascribed to such Unavailable Asset(s) as
determined pursuant to this clause 2(d)(i); provided, however,
that this clause 2(d) shall not apply in the case of reasonable
wear and tear on the Assets occurring prior to the Closing Date.
For purposes of this clause 2(d)(i) an Unavailable Asset that is
transferred, destroyed, damaged or lost shall be valued at its
Fair Market Value. If any Unavailable Asset is partially, but not
totally, destroyed, the Closing Date Payment shall be reduced by
the cost to repair such asset up to its Fair Market Value. The
adjustment mechanism described in this clause 2(d) will not be
applied with respect to any Asset that has been replaced by the
Vendors by a similar asset of comparable value reasonably
acceptable to the Purchaser.
(ii) The "FAIR MARKET VALUE" of an Asset for purposes of this clause
2(d) shall be as agreed by the Parties. If the Parties are unable
to agree on Fair Market Value within five (5) Business Days after
the Vendors notify the Purchaser of the transfer, destruction,
damage or loss of the Asset, the Parties shall submit the issue
to CTC Services or, if such firm is unable or unwilling to serve,
to another person mutually acceptable to the Parties (the
"APPRAISER"). Each Party shall submit to the Appraiser its
proposed Fair Market Value. The Appraiser shall, within fifteen
(15) days following receipt of the Parties' proposals, advise the
Parties as to its determination of the Fair Market Value for
purposes hereof. The costs of retaining the Appraiser shall be
borne equally by the Parties.
(iii) The adjustment mechanism described in clause 2(d)(i) will be
applied and the Parties will be required to proceed with the
Closing so long as the estimated adjustment pursuant to clause
2(d)(i) hereof, together with any estimated adjustments pursuant
to
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the Pending Purchase Agreements (the "AGGREGATE ESTIMATED
ADJUSTMENT"), would not exceed $3,000,000. If the Aggregate
Estimated Adjustment would exceed $3,000,000, the Purchaser may,
at its option, either continue to apply the adjustment mechanism
and proceed with the Closing or terminate this Agreement without
consummating the transactions contemplated hereby.
(e) Insofar as the following have application to the Assets:
(i) all revenues, profits, benefits, expenses and obligations of
every kind and nature arising or resulting from the ownership and
operation of the Assets accruing on or prior to the Closing Date
shall belong to the Vendors, and all revenues, profits, benefits,
expenses and obligations of every kind and nature arising or
resulting from the ownership and operation of the Assets accruing
after the Closing Date shall belong to the Purchaser;
(ii) the Assigned Drilling Contract and the contracts of the Fixed
Term Employees assigned to the Purchaser at Closing pursuant to
Clause 17 shall as of the Closing Date be assumed by the
Purchaser and the Purchaser shall then be responsible for the
completion of these contracts and all obligations and liabilities
arising after the Closing Date pursuant to the terms thereof (the
"ASSUMED LIABILITIES"). Without limiting the foregoing, upon
completion of drilling activity under the Assigned Drilling
Contract, the Purchaser shall perform demobilization at its cost
and expense.
(f) Insofar as the following have application to the Assets:
(i) in connection with the Closing, the Parties shall jointly notify
the counterparty under the Assigned Drilling Contract that
payments should be made to the appropriate Vendor or the
Purchaser in accordance with each Party's respective rights and
obligations hereunder;
(ii) the Vendors shall be solely responsible for collection of all
accounts receivable owing or accruing due to the Vendors up to
and including the Closing Date ("ACCOUNTS RECEIVABLE") and the
Purchaser shall have no responsibility in respect thereof except
that the Purchaser agrees to remit to the appropriate Vendor
promptly, but in no event more than 15 days after receipt, any
monies or other payments that may be received by the Purchaser in
respect of the Accounts Receivable following the Closing Date;
and
(iii) the Vendors shall remit to the Purchaser promptly, but in no
event more than 15 days after receipt, any monies or other
payments that may be received by the Vendors relating to accounts
receivable owing or accruing due to the Purchaser after the
Closing Date.
(g) The Purchaser shall be liable for any transfer taxes, stamp, sales and
use taxes and similar taxes, assessments, levies, tariffs, imposts,
tolls, duties, export and import fees and charges, value added taxes,
and similar costs relating to the sale or purchase of the Assets
hereunder (collectively, "TRANSFER TAXES") and for any related
interest and penalties, excluding any tax on or measured by net or
gross income or gain of the Vendors. The Purchaser shall promptly
indemnify, defend and hold harmless the Vendors and their respective
directors, officers, employees, agents, parents, subsidiaries and
affiliates from any liability for any Transfer
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Taxes (including interest and penalties thereon). The Parties agree to
take all such steps as are reasonably required to minimize any adverse
tax consequences in respect of the transactions contemplated by this
Agreement; provided that no Party shall be required to take any action
that, in such Party's reasonable belief, would be detrimental to its
tax position.
(h) Within five (5) days after the date hereof the Parties shall meet to
agree on an estimate of the aggregate Peru tax withholding obligation
arising from the sale of the Assets contemplated hereby (the
"ESTIMATED WITHHOLDING OBLIGATION"). If within ten (10) days the
Parties are unable to agree on the Estimated Withholding Obligation,
the issue shall be submitted to the local office of
PricewaterhouseCoopers (the "ARBITER") and the Arbiter's determination
of the Estimated Withholding Obligation shall be final and binding on
the Parties.
3. MAINTENANCE OF ASSETS
(a) At all times between the date of this Agreement and the Closing Date
and subject at all times to the terms and conditions of this
Agreement, the Vendors shall:
(i) manage and operate the Assets in the Ordinary Course of Business;
(ii) continue to maintain insurance coverage on their operations in
respect of the Assets in accordance with present arrangements and
in material compliance with all applicable Legal Requirements and
contractual obligations;
(iii) keep the Purchaser reasonably informed of all material
developments relating to the Assets; and
(iv) continue to pay any fees, taxes and charges of any nature
relating to the ownership, possession or operation of the Assets
that are due on or prior to the Closing Date.
(b) Between the date of this Agreement and the Closing Date, the Vendors
shall not, without the Purchaser's prior written consent, such consent
not to be unreasonably withheld, conditioned or delayed, or as
otherwise specifically contemplated by this Agreement:
(i) authorize, commit to or make any disposition of any of the Assets
having a value in the aggregate greater than $50,000;
(ii) enter into any drilling contract to which the Rig is subject, or
terminate or materially amend, or agree to any material amendment
or termination of, the Drilling Contract; provided that the
Purchaser's consent shall not be required to accelerate,
terminate or amend the Drilling Contract as a result of a Vendor
not being paid thereunder or as a result of a material default by
the other party to the Drilling Contract; or
(iii) waive any right or claim or enter into any compromise or
settlement of any litigation, proceeding or investigation by any
Governmental Authority that would be reasonably expected to
materially impair the Purchaser's ownership, operation or use of
the Assets after the Closing Date.
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4. ACCESS TO RECORDS; OTHER MATTERS
(a) Notwithstanding that it is contemplated that the Purchaser shall have
completed its due diligence prior to the date of this Agreement, if
reasonably required, during the period following the date hereof until
the Closing Date, the Vendors shall make available to the Purchaser or
its authorized representatives for inspection and review during normal
business hours, the Assets and all of the books and records of Vendors
relating to the Assets and all contracts, leases, agreements and other
documents relating to the Assets. The Purchaser will conduct this
inspection and review in a reasonable manner that does not interfere
materially with the normal operations of Vendors or their affiliates.
(b) Until the Closing Date, the Purchaser shall keep confidential all
information regarding the Vendors and the Assets given to the
Purchaser by or on behalf of the Vendors in accordance with and
subject to that certain Confidentiality Agreement dated February 24,
2005 between the Saxon Energy Services Inc. ("SAXON") and PDCIL (the
"CONFIDENTIALITY AGREEMENT").
(c) On the Closing Date the Purchaser shall facilitate the release of the
bonds, guaranties, sureties, letters of credit and other similar
undertakings (collectively, "CREDIT ENHANCEMENTS") set forth on
Schedule "G," including, without limitation, by offering to substitute
Credit Enhancements of the Purchaser or its lenders. The Purchaser
acknowledges and agrees that it shall be solely responsible for
satisfying the creditworthiness standards, policies and requirements
of the other parties to any contracts and agreements to which the
Credit Enhancements listed on Schedule "G" relate.
(d) Promptly following the Closing, but in any event within ninety (90)
days after the Closing Date, the Purchaser shall remove, or cause to
be removed, from the Assets, any markings bearing the name "▇▇▇▇▇▇"
(including any variations or derivations thereof) or any trademarks,
tradenames or logos of the Vendors or any of their respective
affiliates.
5. APPROVALS
Prior to the Closing Date, the Vendors, at the expense of the Vendors,
shall obtain and deliver to the Purchaser all the consents, permissions and
approvals set forth on Schedule "H" hereto (the "CONSENTS"). The Consents
constitute the only third party consents, provisions or approvals necessary
for the Vendors to execute and deliver this Agreement and consummate the
transactions contemplated hereby.
6. CLOSING
The Closing of the sale of the Assets by the Vendors to the Purchaser shall
be held on the Closing Date at the offices of the Vendors, or at such other
place as mutually agreed by the Parties.
(a) At Closing, the Vendors will deliver to the Purchaser the following:
(i) bills of sale of the Assets, in form and substance mutually
satisfactory to the Parties, conveying the Assets to the
Purchaser and duly executed by the appropriate Vendors;
(ii) assignments of the Assumed Liabilities in form and substance
mutually satisfactory to the Parties, and, to the extent
transferable, the transfer of all warranties, rights,
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claims and securities held by the Vendors against third parties
in relation to the Assets;
(iii) a sublease, in form and substance mutually satisfactory to the
Parties, of the Yard Leased Premises, for a term not to extend
past December 31, 2005 (the "SUBLEASE"), duly executed by ▇▇▇▇▇▇
Drilling of Oklahoma Incorporated, Sucursal del Peru;
(iv) such resolutions of the Vendors as required to approve and
authorize the sale of the Assets to the Purchaser;
(v) documentation to effect the transfer of the Employees to the
Purchaser in accordance with Article 17, duly executed by the
appropriate Vendor;
(vi) conveyance documentation evidencing conveyance of the Rig to
Universal Rig Services Corp.;
(vii) the books, records and documents described in clause 1(a)(v);
(viii) Consents required pursuant to Article 5;
(ix) a non-competition agreement in form and substance mutually
satisfactory to the Parties (the "NON-COMPETE"), duly executed by
the Vendors;
(x) a guarantee of the obligations of the Vendors under this
Agreement, in form and substance mutually satisfactory to the
Parties, duly executed by ▇▇▇▇▇▇ Drilling Company;
(xi) a termination of the Master Services Agreement;
(xii) a certificate of each Vendor (A) repeating and confirming that
the warranties and representations set out in clause 7 that are
not qualified by materiality are true and accurate in all
material respects as of the Closing Date (except for any such
warranties and representations that speak as of an earlier date,
in which case they shall be true and accurate in all material
respects as of such date), and that the warranties and
representations set out in clause 7 that are qualified by
materiality are true and accurate in all respects as of the
Closing Date (except for any such warranties and representations
that speak as of an earlier date, in which case they shall be
true and accurate in all respects as of such date), and (B)
confirming that such Vendor has performed and satisfied in all
material respects all agreements required by this Agreement to be
performed and satisfied by such Vendor at or prior to the
Closing;
(xiii) a joint direction to the Escrow Agent to pay the Deposit to the
account(s) designated by the Vendors;
(xiv) the Peru Escrow Agreement, duly executed by the Vendors;
(xv) a legal opinion of the Vendors' counsel that:
11
A. the Vendors have been duly incorporated and are validly
existing and in good standing under the laws of their
respective jurisdictions of incorporation;
B. the Vendors have the authority to enter into this Agreement
and all other documents contemplated by this Agreement, this
Agreement and all other documents contemplated by this
Agreement have been duly authorized, executed and delivered
by the Vendors and this Agreement and all other documents
contemplated by this Agreement (other than the Non-Compete)
constitute legal, valid and binding obligations of the
Vendors enforceable against each Vendor in accordance with
their respective terms subject to customary exceptions and
qualifications; and
C. all necessary corporate actions and proceedings of the
Vendors have been taken to permit the Assets to be duly and
validly sold, assigned and transferred to the Purchaser;
(xvi) a legal opinion of the Vendor's counsel covering the matters
described in clause 6(a)(xiv) above with respect to the vendor
under the Peru Purchase Agreement (250);
(xvii) invoice(s) issued by the appropriate Vendor(s) to the Purchaser
in accordance with Peruvian law; and
(xviii) such other documents as the Purchaser may reasonably require
to transfer the Assets to the Purchaser in accordance with this
Agreement.
(b) At Closing, the Purchaser will deliver to the Vendors the following:
(i) by wire transfer to the account(s) designated by the Vendors, the
Closing Date Payment reduced by an amount equal to the Estimated
Withholding Obligation, in the manner provided in clause
2(c)(ii);
(ii) by wire transfer to the Peru Escrow Account, an amount equal to
the Estimated Withholding Obligation;
(iii) a joint direction to the Escrow Agent to pay the Deposit to the
account(s) designated by the Vendors;
(iv) the Peru Escrow Agreement, duly executed by the Purchaser;
(v) the Sublease, duly executed by the Purchaser;
(vi) assumptions of the Assumed Liabilities in form and substance
mutually satisfactory to the Parties;
(vii) documentation to effect the transfer of the Employees to the
Purchaser in accordance with Article 17, duly executed by the
Purchaser;
(viii) a guarantee of the obligations of the Purchaser under this
Agreement, in form and substance mutually satisfactory to the
Parties, duly executed by Saxon;
12
(ix) such resolutions of the Purchaser as are required to approve and
authorize the purchase of the Assets by the Purchaser;
(x) a legal opinion of the Purchaser's counsel that:
A. the Purchaser has been duly incorporated and is validly
subsisting under the laws of its jurisdiction of
incorporation and where it carries on business;
B. the Purchaser has the authority to enter into this Agreement
and all other documents contemplated by this Agreement and
this Agreement and all other documents contemplated by this
Agreement have been duly authorized, executed and delivered
by the Purchaser and constitute legal, valid and binding
obligations of the Purchaser enforceable against the
Purchaser in accordance with their respective terms subject
to customary exceptions and qualifications;
C. all necessary actions and proceedings of the Purchaser have
been taken to permit the Assets to be duly and validly
purchased by the Purchaser;
(xi) a legal opinion of the Purchaser's counsel covering the matters
described in clause 6(b)(x) above with respect to the purchaser
under the Peru Purchase Agreement (250);
(xii) a certificate of the Purchaser (A) repeating and confirming that
the warranties and representations set out in clause 9 that are
not qualified by materiality are true and accurate in all
material respects as of the Closing Date (except for any such
warranties and representations that speak as of an earlier date,
in which case they shall be true and accurate in all material
respects as of such date), and that the warranties and
representations set out in clause 9 that are qualified by
materiality are true and accurate in all respects as of the
Closing Date (except for any such warranties and representations
that speak as of an earlier date, in which case they shall be
true and accurate in all respects as of such date), and (B)
confirming that the Purchaser has performed and satisfied in all
material respects all agreements required by this Agreement to be
performed and satisfied by the Purchaser at or prior to the
Closing.
(c) On the Closing Date the Vendors will transfer and deliver possession
of all of the Assets to the Purchaser. Upon completion of the Closing,
title, ownership, possession and risk of loss of the Assets shall pass
to the Purchaser and the Purchaser shall take delivery and possession
of the Assets wherever they are located on the Closing Date.
7. VENDOR REPRESENTATIONS
The Vendors jointly and severally covenant with and represent and warrant
to the Purchaser realizing that the Purchaser is relying upon such
covenants, representation and warranties, that:
(a) Each Vendor has been duly incorporated and is validly existing under
the laws of its jurisdiction of incorporation and has all requisite
authority, power and corporate capacity to carry on its business, as
now conducted and to own its properties and assets and has good right,
full power and absolute authority to carry out its obligations under
this Agreement,
13
including, without limitation, the sale, transfer, assignment and
conveyance of the Assets to the Purchaser in the manner herein
provided for according to the true intent and meaning of this
Agreement;
(b) Universal Rig Services Corp. is the owner of the Rig and the other
Assets that are the subject of the invoice issued by it pursuant to
clause 6(a)(xvi). Each Vendor has good and marketable title to the
Assets owned by it and such Assets are owned by such Vendor free and
clear of all Encumbrances. Notwithstanding the foregoing, the Vendors
hereby expressly disclose to the Purchaser that the Rig is currently
maintained in Peru under temporary import status and, at Closing, will
be transferred to the Purchaser under such status. Except as provided
in the preceding sentence, no representation and warranty (express or
implied) is made regarding the import status of the Rig. No person has
any agreement or option or any right capable of becoming an agreement
for the purchase, lease or encumbering of the Assets or any of them;
(c) There are no lawsuits, claims, proceedings, actions, judgments or
investigations pending or, to the best of the Vendors' knowledge,
threatened or contemplated against or with respect to, the Assets or
the Vendors that would reasonably be expected to adversely affect the
Purchaser's possession, ownership or operation of any of the Assets;
(d) The Vendors are in compliance with all Legal Requirements and orders
of Governmental Authorities, except to the extent that non-compliance
would not reasonably be expected to result in a material claim against
the Assets, and:
(i) no event has occurred or circumstance exists that (with or
without notice or lapse of time) would reasonably be expected to
constitute or result in a violation by any Vendor of, or a
failure on the part of any Vendor to comply with, any Legal
Requirement in respect to such Vendor's possession, ownership or
operation of the Assets owned or operated by it, except for a
violation or failure to comply that would not reasonably be
expected to result in a material claim against the Assets; and
(ii) no Vendor has received any written notice or other written
communication from any Governmental Authority regarding any
violation of, or failure to comply with, any Legal Requirement in
respect of such Vendor's possession, ownership or operation of
the Assets owned or operated by it;
(e) The execution, delivery of, performance of and compliance with the
terms of this Agreement and any agreements to be executed and
delivered pursuant hereto by the Vendors will not conflict with any
term or provision of the articles or certificate of incorporation or
bylaws or resolutions of the directors of the Vendors, result in any
breach of, or constitute a default under and do not and will not
create a state of facts which, after notice or lapse of time or both,
would result in a breach of or constitute a default under any term or
provision of any indenture, mortgage, note, contract, agreement
(written or oral), instrument, lease or other document to which either
Vendor is a party or by which it is bound, or violate any judgment,
decree, order, statute, rule or regulation applicable to any Vendor,
which default, breach or violation would reasonably be expected to
have a material adverse effect on the Assets;
(f) This Agreement has been duly authorized, executed and delivered by
each Vendor and all other documents executed and delivered by the
Vendors pursuant hereto shall be duly authorized, executed and
delivered by the Vendors and will constitute legal, valid and binding
obligations of the Vendors enforceable in accordance with their
respective terms, subject to
14
the qualification that such enforceability may be subject to (i)
bankruptcy, insolvency, fraudulent preference, reorganization or other
laws relating to or affecting creditors rights generally; and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at equity or in law);
(g) Schedules "▇," "▇" and "C" constitute a complete and accurate list and
description as of the date hereof of the Rig and all related
inventory, equipment (including the top drive associated with the Rig)
and tools, including all spares, drill pipe and collars, handling
tools, subs, hand tools and other items constituting part of the
Assets (excluding, however, any Excluded Assets);
(h) The Assets are in material compliance with all Environmental Laws
applicable to the Vendors' operations in Peru relating to the
protection of the environment, occupational health and safety or the
processing, use, treatment, storage, disposal, discharge, transport or
handling of Hazardous Substances and each Vendor holds all
Environmental Permits required by Environmental Laws to be held by it
for the operation of the Assets as operated by such Vendor on the date
hereof, except to the extent that any non-compliance with
Environmental Laws or failure to obtain an Environmental Permit would
not reasonably be expected to result in a material Environmental Claim
against the Assets. The Vendors have not received written notice of
any Environmental Claims or been prosecuted for, an offence alleging
non-compliance of any Asset with any Environmental Law, and, to the
best of Vendors' knowledge, there are no orders or directions relating
to environmental matters requiring any work, repairs, construction or
capital expenditures to be made with respect to the Assets, nor has
any Vendor received written notice of any of the same. To the best of
Vendors' knowledge, there has not been a release of any Hazardous
Substance on or from any Asset with respect to which a Vendor is or
may reasonably be alleged to have material liability, other than a
release that would not reasonably be expected to result in a material
Environmental Claim against the Assets, nor has any Vendor received
any written notice that it is potentially responsible for a federal,
provincial, municipal or local clean-up site or corrective action
under any applicable Environmental Laws that would be binding on the
Purchaser or the Assets after the Closing. The representations in this
clause 7(h) shall constitute the sole and exclusive representations
provided by the Vendors regarding environmental matters;
(i) The Vendors have not assigned or in any way restricted their rights
nor has any third party restricted the Vendors' rights to receive
revenue from the Assets in any manner that will impair the Purchaser's
right to receive revenues from the Assets after the Closing Date;
(j) The Assets are insured and all policies of insurance insuring the
Assets are in full force and effect and the Vendors are in compliance
with the terms of such policies in all material respects;
(k) Neither Vendor is in a state of bankruptcy or moratorium or has sought
protection under any bankruptcy or moratorium law or in general sought
or initiated any action designed to receive protection against
creditors in general;
(l) Except as set forth on Schedule "I," the Vendors are not parties to
any employment, service, pension, union or management contract with
any Employee;
15
(m) The Vendors have made available to the Purchaser a true and correct
copy of the Drilling Contract. With respect to the Drilling Contract:
(i) it is legal, valid, binding, enforceable and in full force and
effect;
(ii) it will be legal, binding, enforceable and in full force and
effect on substantially identical terms immediately following
assignment thereof to the Purchaser;
(iii) no Vendor is in breach or default in any material respect and,
to the best of Vendors' knowledge, (A) no other party is in
breach or default in any material respect and (B) no event has
occurred which with notice or lapse of time would constitute a
material breach or default, or permit termination, modification
or acceleration thereunder;
(iv) as of the date hereof, no party has repudiated any provision
thereof;
(n) No Vendor has incurred any liability, contingent or otherwise, for
broker's, agent's or finder's fees in respect of this Agreement for
which the Purchaser shall have any obligation or liability.
8. VENDORS' REPRESENTATIONS-SURVIVAL AND OTHER MATTERS
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET OUT IN CLAUSE 7 HERETO
AND SUBJECT TO THE PARTIES' AGREEMENTS IN CLAUSE 2(D) HERETO, THE VENDORS
ARE SELLING AND THE PURCHASER IS PURCHASING THE ASSETS "AS IS, WHERE IS"
AND "WITH ALL FAULTS," AND THE VENDORS ARE NOT MAKING ANY OTHER
REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, THOSE REGARDING MERCHANTABILITY, VALUE,
PHYSICAL CONDITION, PERFORMANCE, USE OR FITNESS FOR ANY PARTICULAR PURPOSE
OF THE ASSETS. THE PURCHASER AGREES, BY ITS EXECUTION HEREOF, THAT THERE
ARE NO REPRESENTATIONS OR WARRANTIES EXCEPT AS SPECIFICALLY SET FORTH IN
THIS AGREEMENT, AND THE PURCHASER DOES FURTHER AGREE THAT IT HAS EXAMINED
AND IS FAMILIAR WITH THE ASSETS AND IS NOT RELYING ON ANY REPRESENTATIONS
OR WARRANTIES REGARDING THE ASSETS OTHER THAN AS SET FORTH IN CLAUSE 7 OF
THIS AGREEMENT.
Notwithstanding anything to the contrary herein expressed or implied, it is
expressly agreed and understood that the representations and warranties
contained in clause 7 of this Agreement shall survive the Closing for a
period of two (2) years from the Closing Date. No claim for breach of the
representations and warranties contained in clause 7 may be made by the
Purchaser unless written notice of such claim has been given to the Vendors
within the two (2) year time period referred to above; provided that any
such claim shall be subject in all respects to the limitations set forth in
Article 16, except that the Basket and Cap set forth in clause 16(a) shall
not apply to breaches of the representations and warranties in clauses
7(a), 7(b), 7(e), 7(f), 7(k) and 7(n) and the Basket set forth in clause
16(a) shall not apply to breaches of the representations and warranties in
clause 7(i). This clause shall not limit enforceability of any covenant or
agreement of the Parties which contemplates performance after the Closing.
If, at any time prior to the Closing the Purchaser shall have actual
knowledge of any breach of a representation, warranty, covenant, agreement
or condition of the Vendors (a "KNOWN VENDOR BREACH"), the Purchaser shall
promptly notify the Vendors of its knowledge, in reasonable detail,
including the amount which the Purchaser believes, based on the facts
actually known by it, would be payable by the Vendors under the
indemnification provisions of this Agreement without reference to any
indemnification limitations set forth in Article 16 of this Agreement. If a
Known Vendor Breach
16
results in failure of the condition set forth in clause 12(b) and the
Purchaser proceeds to consummate the transactions contemplated hereby, then
such Known Vendor Breach shall not be deemed to be a breach of this
Agreement for any purpose hereunder, and neither the Purchaser nor any
affiliate of the Purchaser shall have any claim or recourse against the
Vendors or their respective directors, officers, employees, affiliates,
controlling persons, agents, advisors or representatives with respect to
such Known Vendor Breach, under Article 16 of this Agreement or otherwise.
9. PURCHASER'S REPRESENTATIONS
The Purchaser covenants with and represents and warrants to the Vendors
realizing that the Vendors are relying upon such covenants, representations
and warranties, that:
(a) The Purchaser is duly incorporated and validly existing under the laws
of Peru and has good right, full power and absolute authority to
purchase the Assets from the Vendors according to the true intent and
meaning of this Agreement;
(b) The execution, delivery of, performance of and compliance with the
terms of this Agreement and any agreements to be executed and
delivered pursuant hereto by the Purchaser will not result in any
breach of, or constitute a default under and do not and will not
create a state of facts which, after notice or lapse of time or both,
would result in a breach of or constitute a default under any term or
provision of the articles, by-laws or resolutions of shareholders or
directors of the Purchaser or any indenture, mortgage, note, contract,
agreement (written or oral), instrument, lease or other document to
which the Purchaser is a party or by which it is bound, or any
judgment, decree, order, statute, rule or regulation applicable to the
Purchaser;
(c) This Agreement has been duly authorized, executed and delivered by the
Purchaser and all other documents executed and delivered by the
Purchaser pursuant hereto shall be duly authorized, executed and
delivered by the Purchaser and will constitute legal, valid and
binding obligations of the Purchaser enforceable in accordance with
their respective terms, subject to the qualification that such
enforceability may be subject to (i) bankruptcy, insolvency,
fraudulent preference, reorganization or other laws relating to or
affecting creditors rights generally; and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at equity or in law);
(d) The Purchaser (i) currently has sufficient immediately available funds
in cash or cash equivalents and will at the Closing have sufficient
immediately available funds, in cash, or (ii) has sufficient binding
commitment letters from financing sources, true and correct copies of
which have been provided to the Vendors prior to the date of this
Agreement, to pay the portion of the Purchase Price payable at Closing
and to pay any other amounts payable under this Agreement and to
effect the transactions contemplated by this Agreement, all without
any third-party consent or approval required;
(e) The Purchaser has not incurred any liability, contingent or otherwise,
for broker's, agent's or finder's fees in respect of this Agreement
for which the Vendors shall have any obligation or liability.
10. SURVIVAL OF PURCHASER'S REPRESENTATIONS
Notwithstanding anything to the contrary herein expressed or implied, it is
expressly agreed and understood that the representations and warranties
contained in clause 9 of this Agreement shall
17
survive Closing for a period of two (2) years from the Closing Date. No
claim for breach of the representations and warranties contained in clause
9 may be made by the Vendors unless written notice of such claim has been
given to the Purchaser within the two (2) year time period referred to
above; provided that any such claim shall be subject in all respects to the
limitations set forth in Article 16, except that the Basket and Cap set
forth in clause 16(b) shall not apply to breaches of the representations
and warranties in clauses 9(a), 9(b), 9(c) and 9(e). This clause shall not
limit enforceability of any covenant or agreement of the Parties which
contemplates performance after the Closing. Notwithstanding the foregoing,
no breach by the Purchaser of any representation, warranty, covenant,
agreement or condition of this Agreement shall be deemed to be a breach of
this Agreement for any purpose hereunder, and neither the Vendors nor any
of their respective affiliates shall have any claim or recourse against the
Purchaser or its directors, officers, employees, affiliates, controlling
persons, agents, advisors or representatives with respect to such breach,
under Article 16 of this Agreement or otherwise, if the Vendors or any of
their respective affiliates had actual knowledge prior to Closing of such
breach.
11. CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS
The obligations of the Parties to complete the acquisition of the Assets
pursuant hereto are subject to the following conditions being fulfilled or
waived prior to Closing:
(a) since the date of this Agreement, there shall not have been commenced
any proceeding by or on behalf of a third party seeking to enjoin the
transactions contemplated hereby or that may have the effect of
preventing, making illegal, or otherwise materially interfering with
the transactions contemplated hereby;
(b) no order, writ, injunction or decree shall have been entered and be in
effect by any court or Governmental Authority, and no statute, rule,
regulation, or other Legal Requirement shall have been promulgated or
enacted and be in effect, that restrains, enjoins or invalidates the
transactions contemplated hereby; and
(c) the transactions contemplated by the Colombia Purchase Agreement shall
have been consummated or shall be consummated contemporaneously with
the transactions contemplated hereby.
12. PURCHASER'S CONDITIONS PRECEDENT
The obligations of the Purchaser to complete the acquisition of the Assets
pursuant hereto is subject to the following conditions being fulfilled or
waived prior to or at Closing:
(a) all Consents listed on Schedule "H" shall have been obtained;
(b) all representations and warranties contained in clause 7 of this
Agreement that are not qualified by materiality shall be true and
accurate in all material respects as of the Closing Date (except for
any such warranties and representations that speak as of an earlier
date, in which case they shall be true and accurate in all material
respects as of such date), and all representations and warranties
contained in clause 7 of this Agreement that are qualified by
materiality shall be true and accurate in all respects as of the
Closing Date (except for any such warranties and representations that
speak as of an earlier date, in which case they shall be true and
accurate in all respects as of such date), and the Vendors shall have
performed and
18
satisfied in all material respects all agreements required by this
Agreement to be performed and satisfied by the Vendors at or prior to
the Closing;
(c) the Purchaser shall have obtained all permits, licenses or other
governmental authorizations required for the Purchaser to possess, own
or operate the Assets;
(d) the Purchaser, acting reasonably, shall be satisfied that Pluspetrol
is contractually or legally obligated to the Vendors to pay all
customs duties, value added taxes and similar payments (as and when
such payments become due and payable) required by the Peruvian
National Tax Authority (SUNAT) or any Governmental Authority, pursuant
to applicable Legal Requirements, to be paid to effect the permanent
importation and timely nationalization of the Rig; and
(e) the Purchaser shall be furnished with the items which the Vendors are
to deliver at Closing pursuant to clause 6(a).
The foregoing conditions shall be for the exclusive benefit of the
Purchaser and may be waived by the Purchaser in writing in whole or in
part.
13. VENDORS' CONDITIONS PRECEDENT
The obligations of the Vendors to complete the sale of the Assets pursuant
hereto is subject to the following conditions being fulfilled or waived
prior to or at Closing:
(a) all Consents listed on Schedule "H" shall have been obtained;
(b) all representations and warranties contained in clause 9 of this
Agreement that are not qualified by materiality shall be true and
accurate in all material respects as of the Closing Date (except for
any such warranties and representations that speak as of an earlier
date, in which case they shall be true and accurate in all material
respects as of such date), and all representations and warranties
contained in clause 9 of this Agreement that are qualified by
materiality shall be true and accurate in all respects as of the
Closing Date (except for any such warranties and representations that
speak as of an earlier date, in which case they shall be true and
accurate in all respects as of such date), and the Purchaser shall
have performed and satisfied in all material respects all agreements
required by this Agreement to be performed and satisfied by the
Purchaser at or prior to the Closing;
(c) the Purchaser shall have obtained all permits, licenses or other
governmental authorizations required for the Purchaser to possess, own
or operate the Assets, or waived the condition in clause 12(c); and
(d) the Vendors shall be furnished with the items which the Purchaser is
to deliver at Closing pursuant to clause 6(b).
The foregoing conditions shall be for the exclusive benefit of the Vendors
and may be waived by the Vendors in writing in whole or in part.
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14. SATISFACTION OF CONDITIONS PRECEDENT
The Vendors and the Purchaser shall use all commercially reasonable efforts
to satisfy and assist in the satisfaction of all conditions precedent.
15. TERMINATION
(a) The Parties may terminate this Agreement as provided below:
(i) The Purchaser and the Vendors may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) The Purchaser may terminate this Agreement pursuant to clause
2(d)(iii) upon delivery of written notice to the Vendors;
(iii) Either the Purchaser or the Vendors may terminate this Agreement
upon delivery of written notice to the other Parties if (A) one
or both of the Pending Purchase Agreements are terminated for any
reason or (B) the Closing has not occurred on or before June 10,
2005 (the "EXPIRATION DATE") as a result of the condition in
clause 11(c) not having been satisfied on or prior to such date,
provided that the terminating Party shall not have caused such
failure to close;
(iv) Either the Purchaser or the Vendors may terminate this Agreement
upon delivery of written notice to the other Parties if (A) there
shall have been commenced a proceeding by or on behalf of a third
party seeking to enjoin the transactions contemplated hereby or
that has the effect of preventing, making illegal, or otherwise
materially interfering with the transactions contemplated hereby,
(B) an order, writ, injunction or decree shall have been entered
and be in effect by any court or Governmental Authority, or a
statute, rule, regulation, or other Legal Requirement shall have
been promulgated or enacted and be in effect, that restrains,
enjoins or invalidates the transactions contemplated hereby or
(C) the Closing has not occurred on or before the Expiration Date
as a result of the conditions in clauses 11(a) or 11(b) not
having been satisfied on or prior to such date, provided that the
terminating Party shall not have caused such failure to close;
(v) The Purchaser may terminate this Agreement upon delivery of
written notice if the Closing has not occurred on or before the
Expiration Date as a result of one or more of the conditions set
forth in clause 12 not having been satisfied on or prior to such
date, provided that the Purchaser shall not have caused such
failure to close; and
(vi) The Vendors may terminate this Agreement upon delivery of written
notice if the Closing has not occurred on or before the
Expiration Date as a result of one or more of the conditions set
forth in clause 13 not having been satisfied on or prior to such
date, provided that the Vendors shall not have caused such
failure to close.
(b) In the event that this Agreement is terminated pursuant to clause
15(a)(i), the Purchaser terminates this Agreement pursuant to clauses
15(a)(ii) or 15(a)(v) (other than due to non-satisfaction of the
condition in clause 12(c)), a Party terminates this Agreement pursuant
to clause 15(a)(iv), or the Vendors terminate this Agreement pursuant
to clause 15(a)(vi) due to non-satisfaction of the condition in clause
13(a), the Purchaser shall be entitled to a refund of
20
the Deposit and the Parties shall execute joint written instructions
directing the Escrow Agent to refund the Deposit to the Purchaser.
(c) In the event that this Agreement is terminated by the Purchaser
pursuant to clause 15(a)(v) due to non-satisfaction of the condition
in clause 12(c), or by the Vendors pursuant to clause 15(a)(vi) (other
than due to non-satisfaction of the condition in clause 13(a)), the
Vendors shall be entitled, as liquidated damages for the loss of a
bargain and not as a penalty, to retain the Deposit and the Parties
shall execute joint written instructions directing the Escrow Agent to
disburse the Deposit to the account(s) designated by the Vendors.
(d) In the event of a termination of this Agreement pursuant to clause
15(a)(iii) as a result of the termination of one or both of the
Pending Purchase Agreements (a "TERMINATED AGREEMENT") under
circumstances that entitle the vendor(s) under the Terminated
Agreement(s) to retain the deposit(s) held in escrow by the Escrow
Agent pursuant to the terms of such Terminated Agreement(s), then the
Vendors shall be entitled, as liquidated damages for the loss of a
bargain and not as a penalty, to retain the Deposit and the Parties
shall execute joint written instructions directing the Escrow Agent to
disburse the Deposit to the account(s) designated by the Vendors. In
the event of a termination of this Agreement pursuant to clause
15(a)(iii) as a result of the termination of one or both of the
Pending Purchase Agreements under circumstances that entitle the
purchaser(s) under the Terminated Agreement(s) to a refund of the
deposit(s) held in escrow by the Escrow Agent pursuant to the terms of
such Terminated Agreement(s), then the Purchaser shall be entitled to
a refund of the Deposit and the Parties shall execute joint written
instructions directing the Escrow Agent to refund the Deposit to the
Purchaser.
(e) If any Party terminates this Agreement pursuant to clause 15(a), all
rights and obligations of the Parties hereunder shall terminate
without any liability of any Party to the other Party (except for any
liability of any Party then in breach); provided, however, that the
provisions contained in clause 4(b), this Article 15, and clauses 19,
20 and 28 shall survive such termination.
16. INDEMNITIES
(a) Provided that the Closing occurs, the Vendors shall:
(i) be jointly and severally liable to the Purchaser and its
directors, officers, employees, agents, parents, subsidiaries and
affiliates (collectively, the "PURCHASER INDEMNITEES") for all
losses, costs, damage and expenses whatsoever (including
penalties and legal costs relating thereto or in defense thereof)
(collectively, "DAMAGES") which the Purchaser may pay or incur as
a result of:
A. any violation of any Environmental Laws or Environmental
Permits in connection with the Vendors' ownership,
occupancy, use or operation of the Assets on or before the
Closing Date;
B. any Environmental Claim which arises out of the Vendors'
ownership, use or operation of the Assets on or before the
Closing Date;
C. Vendors' employment of any former employees of the Vendors,
including, without limitation, (1) any liability for unpaid
compensation, severance,
21
benefits and other payments owed to Fixed Term Employees, to
the extent such liability exceeds the amount of the
adjustment to the Closing Date Payment pursuant to Article
17, and (2) any liability for compensation, bonuses, accrued
severance or other payments owed to Indefinite Term
Employees;
D. any liabilities of the Vendors other than the Assumed
Liabilities, including without limitation, any liabilities
of the Vendors for customs duties and taxes other than those
for which the Purchaser is responsible pursuant to clause
2(g) and other than liabilities for customs duties, taxes
and similar assessments resulting from actions or omissions
of the Purchaser after the Closing Date; provided that, for
the avoidance of doubt, any customs duties, value added
taxes and similar payments required to effect the permanent
importation and nationalization of the Rig shall not
constitute a liability of the Vendor; and
E. any other occurrence, event, condition or circumstance in
connection with the Vendors' ownership or operation of the
Assets occurring prior to the Closing Date; and
(ii) jointly and severally indemnify and save the Purchaser
Indemnitees harmless from all actions, causes of action,
proceedings, claims, demands and Damages brought or made against
the Purchaser Indemnitees or which the Purchaser Indemnitees may
pay or incur, arising out of, resulting from or in any way
related to any of the foregoing in subclauses A. to E. of clause
16(a)(i).
The Vendors will have no obligation to indemnify the Purchaser
Indemnitees pursuant to this clause 16(a) until the aggregate amount
of all Damages suffered by the Purchaser Indemnitees exceeds $100,000
(the "BASKET"), in which case the Vendors shall be liable to the
Purchaser Indemnitees for all Damages in excess of, but not including,
the Basket. The Vendors' obligation to indemnify the Purchaser
Indemnitees pursuant to this clause 16(a) shall not exceed an
aggregate amount equal to (A) if the transactions contemplated by the
Peru Purchase Agreement (250) and the Colombia Purchase Agreement have
been consummated, but the transaction contemplated by the Peru
Purchase Agreement (131 and 145) is not or has not been consummated,
$6,750,000 reduced (on a dollar-for-dollar basis) by the aggregate
amount of Damages from which any purchaser under the Peru Purchase
Agreement (250) or the Colombia Purchase Agreement has been
indemnified and (B) if the transactions contemplated by all the Other
Purchase Agreements have been consummated, $8,500,000 reduced (on a
dollar-for-dollar basis) by the aggregate amount of Damages from which
any purchaser under any Other Purchase Agreement has been indemnified
(the "CAP"). The Parties agree that in the event the Peruvian National
Tax Authority (SUNAT) or other Governmental Authority responsible for
the assessment or collection of taxes seizes or confiscates an Asset
on the basis of unsatisfied tax or customs duties obligations of the
Vendors, the limitation set forth in the preceding sentence shall not
apply and, to the extent the Purchaser Indemnitees' Damages pursuant
to clause 16(a)(i)(D) exceed the Cap, the Purchaser Indemnitees shall
be entitled to recover an amount of such excess Damages equal to the
amount by which (i) the portion of the Purchase Price paid for such
seized or confiscated Asset exceeds (ii) the Cap. In no event will the
Vendors' obligation to indemnify the Purchaser Indemnitees hereunder
exceed an amount equal to the Purchase Price.
22
(b) Provided that the Closing occurs, the Purchaser shall:
(i) be liable to the Vendors and their respective directors,
officers, employees, agents, parents, subsidiaries and affiliates
(collectively, the "VENDOR INDEMNITEES") for all Damages which
the Vendors may pay or incur; and
(ii) indemnify and save the Vendor Indemnitees harmless from all
actions, causes or action, proceedings, claims, demands and
Damages brought or made against the Vendor Indemnitees or which
the Vendor Indemnitees may pay or incur,
as a result of or in connection with (A) the Purchaser's employment of
any present or former employee of a Vendor after the Closing Date and
(B) the ownership, occupancy, use or operation of the Assets after the
Closing Date including, without limitation, as a result of any (i)
violation of any Environmental Laws or Environmental Permits or (ii)
Environmental Claim, which arises out of the ownership, occupancy, use
or operation of the Assets after the Closing Date.
The Purchaser will have no obligation to indemnify the Vendor
Indemnitees pursuant to this clause 16(b) until the aggregate amount
of all Damages suffered by the Vendor Indemnitees exceeds the Basket,
in which case the Purchaser shall be liable to the Vendor Indemnitees
for all Damages in excess of, but not including, the Basket. The
Purchaser's obligation to indemnify the Vendor Indemnitees pursuant to
this clause 16(b) shall not exceed an aggregate amount equal to the
Cap, provided that for purposes of determining the extent of the
Purchaser's indemnification obligations under this Agreement at any
given time the amount of the Cap shall be reduced (on a
dollar-for-dollar basis) by the aggregate amount of Damages from which
any vendor under any Other Purchase Agreement has been indemnified.
The limitations provided in the two preceding sentences shall not
apply in the event of a failure of consideration.
(c) In addition to clause 16(b), the Purchaser hereby releases and agrees
to defend, indemnify and hold harmless the Vendor Indemnitees from and
against any and all causes of action, claims, damages, demands,
liability, losses and suits of every type and character that the
Purchaser, its employees, owners, legal counsel or other authorized
representatives (collectively, the "PURCHASER GROUP") may have against
the Vendor Indemnities as a result of any property damage and/or
bodily injury sustained on or prior to the Closing Date by the
Purchaser Group while on any premises or any assets of the Vendors or
any affiliates of the Vendors. THIS RELEASE AND OBLIGATION TO
INDEMNIFY AND HOLD HARMLESS THE VENDOR INDEMNITEES SHALL APPLY
REGARDLESS OF THE CAUSE OF THE LOSS OR CLAIM, EXCEPT WHERE SUCH LOSS
OR CLAIM ARISES IN WHOLE OR IN PART FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE VENDOR INDEMNITEES OR ANY OF THEM.
(d) If any action or proceeding is commenced in which a Party entitled to
seek indemnification hereunder (an "INDEMNITEE") is a party which may
give rise to a claim for indemnification (an "INDEMNIFICATION CLAIM")
against an indemnifying party hereunder (an "INDEMNITOR"), including
without limitation, an action or proceeding commenced or brought by a
Govenmental Authority to confiscate or seize an Asset, then such
Indemnitee shall promptly give written notice to the Indemnitor.
Failure to notify promptly the Indemnitor will not relieve the
Indemnitor of any Liability that it may have to the Indemnitee, except
to the extent the defense of such action or proceeding is materially
and irrevocably prejudiced by the Indemnitee's failure to give such
notice. An Indemnitor will have the right to defend against
23
an Indemnification Claim with counsel of its choice reasonably
satisfactory to the Indemnitee if within twenty (20) days following
the receipt of notice of the Indemnification Claim, the Indemnitor
notifies the Indemnitee in writing that the Indemnitor will assume the
defense of such Indemnification Claim, provided that if the Indemnitee
reasonably determines in good faith that there exists a conflict of
interest that makes representation by the same counsel inappropriate,
the Indemnitee shall be entitled to employ one firm of separate
counsel at the expense and cost of the Indemnitor and, provided,
further, that if the Indemnification Claim results from a proceeding
for the confiscation or seizure of an Asset, that the Indemnitor has
posted bond in an amount satisfactory to the party making the
confiscation or seizure that will prevent or release the confiscation
or seizure of the Asset while the proceeding is pending. If the
Indemnitor fails to notify the Indemnitee within such 20-day period
that it will assume the defense of the Indemnification Claim, the
Indemnitee shall have the right (upon further notice to the
Indemnitor) to undertake the defense at the expense of the Indemnitor;
provided that in no event will the Indemnitee consent to the entry of
a judgment or enter into a settlement with respect to such claim
without the prior written consent of the Indemnitor (which consent
shall not be unreasonably withheld or delayed). So long as the
Indemnitor is conducting the defense of the Indemnification Claim, (i)
the Indemnitee may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Indemnification Claim
and (ii) the Indemnitee will not consent to the entry of any Order
with respect to the Indemnification Claim without the prior written
consent of the Indemnitor (not to be unreasonably withheld or
delayed). The Indemnitor will not enter into any settlement with
respect to the Indemnification Claim without the prior written consent
of the Indemnitee (not to be unreasonably withheld or delayed) unless
such settlement (A) requires solely the payment of money damages by
the Indemnitor and (B) includes as an unconditional term thereof the
release by the claimant or the plaintiff of the Indemnitee and the
Persons for whom the Indemnitee is acting from all liability in
respect of the proceeding giving rise to the Indemnification Claim.
(e) The Parties further agree that the following procedures shall apply
with respect to any claim under this Article 16:
(i) The Indemnitee shall use commercially reasonable efforts to
mitigate any Damages that such Indemnitee asserts under this
Article 16. In the event that an Indemnitee shall fail to use
such commercially reasonable efforts to mitigate any Damages,
then notwithstanding anything else to the contrary contained
herein, the Indemnitor shall not be required to indemnify such
Indemnitee for any Damages that could reasonably be expected to
have been avoided if the Indemnitee had made such efforts.
(ii) The amount of any Damages for which indemnification is provided
under this Article 16 shall be reduced by (A) any net amounts
recovered from an unaffiliated third party by the Indemnitee
under insurance policies and arrangements with respect to such
Damages and (B) the present value of any tax benefits to be
realized by the Indemnitee from the incurrence or payment of any
such Damages.
(iii) The determination of the dollar amount of any Damages shall be
based solely on the actual dollar value of such Damages, on a
dollar-for-dollar basis, and shall not take into account any
multiplier valuations, including any multiple based on earnings
or other financial indicia.
24
(iv) Any claim for indemnification under this Agreement shall, to the
extent practicable, describe the claim in reasonable detail,
include copies of any material written evidence thereof and
indicate the estimated amount of such claim.
(f) The remedies of the Parties specifically provided for by this
Agreement shall be the sole and exclusive remedies of the Parties for
all matters covered hereby; provided that this clause shall not limit
enforceability of any covenant or agreement of the Parties which
contemplates performance after the Closing or after termination of
this Agreement. The Parties agree that it is their intent that
notwithstanding anything to the contrary contained in this Agreement,
neither the Vendors nor the Purchaser shall be liable to any other
Party, its parent, subsidiaries or affiliates or, its or their
respective officers, directors, shareholders, successors or permitted
assigns, for claims for consequential, special, treble, exemplary,
incidental, indirect or punitive damages of any nature under or
pursuant to this Agreement or in connection with or resulting from the
transactions contemplated hereby, including claims in the nature of
diminution or loss of value, irrespective of whether such claims are
based upon negligence, strict liability, contract, operation of law or
otherwise.
17. EMPLOYEES
The Vendors shall cooperate with the Purchaser to effectuate the transfer
to the Purchaser of the Employees. With respect to Employees who are
employed by the Vendors on a fixed term basis on the Closing Date ("FIXED
TERM EMPLOYEES"), at the Closing the Vendors shall assign to the Purchaser,
and the Purchaser shall assume as of the Closing Date, the contracts for
the employment of such Fixed Term Employees and the Closing Date Payment
shall be reduced by the aggregate amount of unpaid compensation, severance,
benefits and other payments accrued and owing to such Fixed Term Employees
transferred to the Purchaser through the Closing Date (collectively, the
"ACCRUED PAYMENTS"). With respect to Employees who are employed by the
Vendors on an indefinite term basis ("INDEFINITE TERM EMPLOYEES") the
Vendors shall terminate the employment of such Indefinite Term Employees
effective as of the Closing Date and shall pay in full all compensation,
bonuses, accrued severance, and other payments that may result from the
Vendors' termination of the employment of such Indefinite Term Employees.
18. FURTHER ASSURANCES
Without further consideration, each Party shall from time to time, and at
all times, execute, acknowledge and deliver such other documents and shall
take such other action as may be necessary in order to fully perform and
carry out the terms of this Agreement.
19. CONSTRUCTION
This Agreement and all agreements contemplated hereby shall be governed by
and construed in accordance with the laws of the State of Texas without
giving effect to any choice or conflict of law provision or rule (whether
of the State of Texas or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Texas.
20. ARBITRATION
(a) Any dispute, controversy or claim arising out of or relating to this
Agreement that cannot be or has not been resolved among the Parties,
other than a dispute covered by clause 2(d), shall
25
be resolved in accordance with the procedures specified in this
Article 20, which shall constitute the sole and exclusive procedures
for the resolution of disputes.
(b) Each Party agrees to use their respective commercially reasonable
efforts to settle promptly any disputes or claims arising out of or
relating to this Agreement, through negotiations conducted in good
faith between Persons holding a senior management position in each
Party having authority to reach such a settlement. All negotiations
pursuant to this Article 20 shall be confidential and shall be treated
as compromise and settlement negotiations and shall not be admissible
for any purposes in any subsequent arbitration or any other proceeding
(if any).
(c) Any dispute arising out of or relating to this Agreement which has not
been resolved by negotiations as provided in clause 20(b) within
fifteen (15) days from the date that such negotiations shall have been
first requested by any Party shall be settled by binding arbitration
in accordance with the then current Commercial Arbitration Rules of
the American Arbitration Association ("AAA"). All proceedings shall be
subject to the Federal Arbitration Act and the New York Convention.
Any dispute submitted to arbitration pursuant to the provisions of
this clause 20(c) shall be settled by a single arbitrator selected
under the rules of the AAA (the "ARBITRATOR") from its panel of
arbitrators for large, complex commercial disputes, and the cost and
expense of such Arbitrator shall be shared equally among the
participants in the arbitration. In no case shall there be any ex
parte communications between any Party and the Arbitrator regarding
any dispute among the Parties. If any Party refuses to participate in
good faith in negotiations as provided in clause 20(b), then any
applicable Party may initiate arbitration at any time after such
refusal without waiting for the expiration of the fifteen (15) day
period. Except as provided in clause 20(d), relating to provisional
remedies, the Arbitrator shall decide all aspects of any dispute
brought to it, including whether a particular dispute is or is not
arbitrable, attorney disqualification and the timeliness of the making
of any claim. The Arbitrator shall have the discretion to order a
pre-hearing exchange of information by the Parties, including the
production of requested documents, the exchange of testimony of
proposed witnesses, and the examination by deposition of Parties. The
Arbitrator shall not have the authority to make any ruling, finding or
award that does not conform to the terms and conditions of this
Agreement.
(d) Except as otherwise specifically provided herein, each of the Parties
hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Texas state court or
federal court sitting in ▇▇▇▇▇▇ County, Texas and any appellate court
from any thereof, in any action or proceeding arising out of or
relating to or in connection with this Agreement, and in which
provisional, interim or conservatory measures are sought pending
resolution of any arbitration proceeding pursuant to this Article 20
or in which an order to compel arbitration in accordance with this
Agreement or to vacate an arbitral award on such grounds as permitted
by the Federal Arbitration Act or the New York Convention, as
applicable, is sought. Notwithstanding the foregoing, any Party may
proceed to any Texas state court or federal court sitting in ▇▇▇▇▇▇
County, Texas, or to the Arbitrator to obtain provisional relief if
such action is necessary to avoid irreparable harm or to preserve the
status quo pending the resolution of the dispute in accordance with
the provisions of this Article 20.
(e) The site of any arbitration brought pursuant to this Agreement shall
be Houston, Texas and the language in which the arbitration shall be
conducted, including all writings relating thereto (including the
award of the Arbitrator), shall be English. All discovery activities
shall be completed within thirty (30) days after the initial meeting
of the Arbitrator. The award of the Arbitrator shall (i) be final and
binding upon the Parties, (ii) be issued within sixty (60) days
26
after the initial meeting with the Arbitrator (and if not reasonably
practicable within such time period, then within such additional time
as the Arbitrator determines but in any event no longer than six (6)
months after the initial meeting), (iii) be in writing, and (iv) set
forth the factual and legal basis for such award. The Arbitrator may
not award attorneys' fees and cost of the arbitration to the
prevailing Party. Each Party shall bear their own attorneys' fees.
Except as otherwise provided herein, the costs of the arbitration
shall be shared equally among the participants in the arbitration. The
arbitral award shall be made and payable in dollars of the United
States of America free of any tax withholding or other deduction.
Judgment on the award rendered by the Arbitrator may be entered and
enforced in any court having jurisdiction thereof in accordance with
the New York Convention and any other applicable convention or treaty.
(f) Only damages allowed pursuant to this Agreement may be awarded and no
Arbitrator shall have the authority to award loss of profits, loss of
revenue or any incidental, special or consequential loss or damage of
any nature arising at any time or from any cause whatsoever, or
punitive or exemplary damages.
(g) Each of the Parties consents to the submission of any dispute for
settlement by final and binding arbitration in accordance with the
provisions of clause 20(b), and hereby waives the right to proceed to
court or any other forum that may apply to it by reason of its present
or future domicile, or for any other reason. Furthermore, each Party
hereby irrevocably waives its right to raise any objection or defense
that such Party is not personally subject to the jurisdiction of the
arbitration tribunal or the relevant court where the enforcement of
the award is sought (as the case may be), that the venue of any such
suit, action or proceeding for enforcement is improper or
inconvenient, that such suit, action or proceeding for enforcement is
brought in an inconvenient forum, or that this Agreement or the
subject matter hereof may not be enforced in or by the arbitration
tribunal. Such consent shall satisfy the requirements for:
(i) A written arbitration agreement among the Parties, pursuant to
Article I of the Inter-American Convention on International
Commercial Arbitration (Convencion Interamericana sobre Arbitraje
Comercial Internacional), promulgated in Panama on January 30,
1975; and
(ii) An "agreement in writing" pursuant to Article II of the New York
Convention.
(h) Each Party irrevocably consents to service of process by overnight
courier service, by mail or by telecopy to its offices at the address
specified for such Party in Article 23.
(i) The Parties hereby agree to continue to perform their obligations
hereunder while any dispute is pending.
(j) Each of the Parties hereby undertakes without delay to implement,
perform or comply with the provisions of any arbitral award or
decision. If the Parties initiate multiple arbitration proceedings,
the subject matters of which are related by common questions of law or
fact and which could result in conflicting awards or obligations, then
the Parties hereby agree that all such proceedings shall be
consolidated into a single arbitral proceeding before a single
Arbitrator.
27
21. ENUREMENT; NO THIRD PARTY RIGHTS
This Agreement shall be binding upon and shall enure to the benefit of the
Parties hereto and their respective successors and permitted assigns.
Nothing expressed or referred to herein will be construed to give any
Person other than the Parties to this Agreement and their respective
successors and permitted assigns any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision hereof.
22. TIME
Time shall be of the essence of this Agreement.
23. NOTICES
Whether or not so stipulated, all notices required or permitted herein
shall be in writing. The address for notice of each of the Parties hereto
shall be as follows:
VENDORS: c/▇ ▇▇▇▇▇▇ Drilling Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER: Saxon Services del Peru S.A.
c/o Estudio ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Abogados
Centro Empresarial Real - Av. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Belaunde 147
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ - ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇-▇▇▇-▇▇▇▇
Either of the Parties hereto may from time to time change its address for
service herein by giving written notice to the other Party hereto. Any
notice may be served by:
(a) personal service by leaving it with the Party or at the offices of the
Party at that Party's address hereinbefore given;
(b) by mailing the same by prepaid post in a properly addressed envelope
addressed to the Party hereto at its address for service herein;
(c) by telecopier (or by any other like method by which a written and
recorded message may be sent) directed to the Party to whom they are
to be delivered at that Party's address, telecopy or telex number
hereinbefore given.
Any notice given by personal service or telecopy shall be deemed to be
given on the date of such service and any notice given by mail shall be
deemed to be given to and received by the addressee on the third day
(except Saturdays, Sundays, statutory holidays and days upon which postal
service in Canada or the United States is interrupted) after the mailing
thereof.
28
24. PRIOR AGREEMENTS AND AMENDMENTS
This Agreement, together with the Schedules hereto, the Confidentiality
Agreement and the other documents delivered pursuant hereto, constitutes
the entire agreement of the Parties in respect of its subject matter and
shall supersede and replace any and all prior agreements (written or oral)
between the Parties hereto relating to the subject matter set forth herein
and may be amended only by written instrument signed by all Parties hereto.
25. COUNTERPART EXECUTION
This Agreement may be executed in one or more counterparts by the parties
hereto and delivered by telecopy, each of which shall be deemed an original
but all of which together shall constitute one agreement.
26. INVALIDITY OF A PARTICULAR PROVISION
The invalidity of any particular provision of this Agreement shall not
affect any other provision hereto, but the Agreement shall be construed as
if such invalid provision were omitted.
27. ASSIGNMENT
Neither the Vendors, on the one hand, nor the Purchaser, on the other, may
assign this Agreement or any part thereof without the prior written consent
of the other.
28. FEES AND EXPENSES
Whether or not the transactions contemplated by this Agreement are
consummated, and except as otherwise expressly set forth in this Agreement,
all costs and expenses (including legal and financial advisory fees and
expenses) incurred in connection with, or in anticipation of, this
Agreement and the transactions contemplated by this Agreement shall be paid
by the Party incurring such expenses. The Vendors, on the one hand, and the
Purchaser, on the other hand, shall indemnify and hold harmless the other
Party from and against any and all claims or liabilities for broker's,
agent's or finders' fees incurred by reason of any action taken by such
Party or otherwise arising out of the transactions contemplated by this
Agreement by any Person claiming to have been engaged by such Party.
29. SPECIFIC PERFORMANCE
The Parties agree that if any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached, irreparable damage would occur, no adequate remedy at law would
exist and damages would be difficult to determine, and that the Parties
shall be entitled to specific performance of the terms of this Agreement
and immediate injunctive relief, without the necessity of proving the
inadequacy of money damages as a remedy, in addition to any other remedy at
law or in equity.
30. PUBLIC ANNOUNCEMENTS
Prior to the Closing, except as set forth herein or otherwise agreed to by
the Parties, the Parties shall not issue any report, statement or press
release or otherwise make any public disclosures or statements with respect
to this Agreement and the transactions contemplated hereby, except as may
be required by law or required as a result of the corporate parent of
either Party being a publicly-held or exchange-
29
listed company, and prior to making any such public disclosure or statement
the disclosing Party shall furnish to the other Party a copy of such public
disclosure or statement and afford such other Party a reasonable
opportunity to review and comment on the same.
31. NO WAIVER; CUMMULATIVE REMEDIES
The rights and remedies of the Parties provided in this Agreement are
cumulative and not alternative. Neither any failure nor any delay by any
Party in exercising any right, power or privilege under this Agreement will
operate as a waiver of such right, power or privilege, and no single or
partial exercise of any such right, power or privilege will preclude any
other or further exercise of such right, power or privilege or the exercise
of any other right, power or privilege. To the maximum extent permitted by
applicable law and except as otherwise provided in this Agreement, (a) no
claim or right arising out of this Agreement or any of the documents
referred to in this Agreement can be discharged by one Party, in whole or
in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other Party; (b) no waiver that may be given by a
Party will be applicable except in the specific instance for which it is
given and (c) no notice to or demand on one Party will be deemed to be a
waiver of any obligation of that Party or of the right of the Party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
UNIVERSAL RIG SERVICES CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
--------------------------------------
▇▇▇▇▇▇ DRILLING COMPANY INTERNATIONAL LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
--------------------------------------
SAXON SERVICES DEL PERU S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Title: Director
--------------------------------------
[Agreement for Purchase and Sale of Assets (Peru) [Rig 228] - Signature Page]
The following schedules to the Agreement for Purchase and Sale of
Assets (Peru) [Rig 228] dated as of May 6, 2005, by and between Universal Rig
Services Corp. and ▇▇▇▇▇▇ Drilling Company International Limited and Saxon
Services del Peru S.A. have been omitted, and the Registrant agrees; to furnish
supplementally a copy of any such omitted schedules to the Securities and
Exchange commission upon its request:
Schedules
---------
Schedule A - Rig
Schedule B - Inventory and Spare Parts
Schedule C - Office/Communications Equipment
Schedule D - Motor Vehicles
Schedule E - Drilling Contracts
Schedule F - Employees
Schedule G - Credit Enhancements
Schedule H - Consents
Schedule I - Employment Matters