EXHIBIT 10.2
AGREEMENT FOR PURCHASE AND SALE OF ASSETS (PERU)
[RIG 250]
THIS AGREEMENT made this 6th day of May, 2005.
AMONG:
▇▇▇▇▇▇ DRILLING COMPANY OF OKLAHOMA INCORPORATED, SUCURSAL DEL PERU
(hereinafter referred to as "VENDOR")
-and-
SAXON SERVICES DEL PERU S.A.
(hereinafter referred to as "PURCHASER")
WHEREAS, the Vendor wishes 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:
"ASSETS" means:
(i) Rig 250, as more fully described in Schedule "A" hereto (the
"RIG") and all related inventory, equipment and tools, including
all spares, drill pipe and collars, handling tools, subs, hand
tools and those other items set out in Schedule "A" (all
presently located in Iquitos, Peru), but specifically excluding
the Excluded Assets;
(ii) to the extent transferable, the full benefit of all warranties,
rights, claims and securities held by the Vendor against third
parties in relation to the Assets including, without limitation,
all rights and claims of the Vendor in respect of all
representations, warranties, covenants and indemnities made or
given by third parties to or for the benefit of the Vendor or to
which the Vendor has succeeded;
(iii) all business and financial records of the Vendor related solely
to the ownership, operation and maintenance of the Assets,
including documents relating to the recent negotiations with
Pluspetrol Peru Corporation S.A. in respect of Rig 250 but
excluding the records described in subclauses (vii) and (viii) of
the Excluded Assets definition;
(iv) all communications equipment on the Rig;
(v) the motor vehicle listed on Schedule "B";
"CLOSING" means the execution of this Agreement, the transfer of the
Assets to the Purchaser, the payment by Purchaser to Vendor 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 date hereof;
"CLOSING DATE" means the date hereof;
"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;
"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 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
$10,000 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
Vendor's 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;
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"ENVIRONMENTAL PERMITS" shall mean all permits, approvals,
identification numbers, licenses and other authorizations required
under any applicable Environmental Law;
"EXCLUDED ASSETS" shall mean (i) all contracts, leases, agreements,
permits and licenses of the Vendor, (ii) all accounts and notes
receivable of the Vendor, (iii) all cash and cash equivalents and the
cash balances in the bank accounts of the Vendor, (iv) the insurance
policies of the Vendor, (v) the minute books, stock transfer books and
corporate seals of the Vendor, (vi) all capital stock and other equity
interests owned by the Vendor, (vii) all financial, accounting, legal,
tax and audit records of the Vendor not related solely to the Assets,
(viii) all original tax and audit records which support the tax
returns filed by Vendor, whether or not related to the Assets, (ix)
any intellectual property licenses of the Vendor, 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 Vendor (including graphs 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 Vendor, and (xii) all
rights in electronic mail addresses and in telephone, facsimile, cable
or similar numbers used by the Vendor;
"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 Vendor's 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;
"IQUITOS YARD LEASE" means the lease agreement dated May 4, 2002,
between ▇▇▇▇▇▇▇ ▇▇▇▇ Ahuanari, as landlord, and the Vendor, as tenant;
"LEGAL REQUIREMENT" means any requirement under any federal, state,
local, municipal, or foreign law applicable to the Assets or the
Vendor's operations in Peru;
"NEW YORK CONVENTION" means the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards;
"ORDINARY COURSE OF BUSINESS" means the ordinary course of the
Vendor's business consistent with the 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 (228) and the Peru Purchase
Agreement (131 and 145);
"PARTIES" means the parties to this Agreement and "Party" means either
of them;
"PERSON" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, corporation, unincorporated
association, trust or legal representative;
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"PERU PURCHASE AGREEMENT (228)" means the Agreement for Purchase and
Sale of Assets (Peru) dated of even date herewith for the sale of Rig
228, by and among Universal Rig Services Corp., ▇▇▇▇▇▇ Drilling
Company International Limited 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.;
"PREMISES" means the yard leased by the Vendor pursuant to the Iquitos
Yard Lease;
"SUNAT OBLIGATIONS" means the customs duties obligations assessed
against QMC Sucursal Peruana related to certain of the Assets which
obligations are currently being discharged on an installment basis
pursuant to an application for amnesty related to Resolution of
Intendency No. 00784 dated September 25, 1998.
(b) INCORPORATION OF SCHEDULES
Attached hereto are the following schedules:
A - Rig & Inventory and Spare Parts
B - Motor Vehicle
C - Employees
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.
(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.
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(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 Vendor's 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 Vendor hereby agrees to sell to the Purchaser and the Purchaser
hereby agrees to purchase from the Vendor, the Assets pursuant to the
terms and conditions of this Agreement. The Vendor is 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 $4,000,000. Such Purchase Price shall be allocated among the
Assets as follows:
(i) Rig - $3,500,000;
(ii) Inventory and Consumable Spare Parts - $500,000.
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 the Parties shall not assert, in connection
with any audit or other proceeding with respect to taxes (except to
the extent asset values are not reflected above), any asset values or
other items inconsistent with the allocations set forth above.
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(c) The Purchase Price, as reduced pursuant to Article 9, shall be paid at
Closing by wire transfer of immediately available funds to the account
designated by the Vendor.
(d) 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 Vendor, 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.
(e) 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 (i) any tax on or measured by net or
gross income or gain of the Vendor, and (ii) the SUNAT Obligations.
The Purchaser shall promptly indemnify, defend and hold harmless the
Vendor and its directors, officers, employees, agents, parent,
subsidiaries and affiliates from any liability for any Transfer 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.
(f) 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 Vendor or any of its affiliates.
3. CLOSING
(a) At Closing, the Vendor 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 Vendor;
(ii) to the extent transferable, the assignment of all warranties,
rights, claims and securities held by the Vendor against third
parties in relation to the Assets;
(iii) such resolutions of the Vendor as required to approve and
authorize the sale of the Assets to the Purchaser;
(iv) the books, records and documents described in clause 1(a)(iii);
(v) documentation to effect the transfer of the Employees to the
Purchaser in accordance with Article 9, duly executed by the
Vendor;
(vi) a guarantee of the obligations of the Vendor under this
Agreement, in form and substance mutually satisfactory to the
Parties, duly executed by ▇▇▇▇▇▇ Drilling Company;
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(vii) an invoice issued by the Vendor to the Purchaser in accordance
with Peruvian law; and
(viii) 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 Vendor the following:
(i) the Purchase Price, as reduced pursuant to Article 9, in the
manner provided in clause 2(c);
(ii) a guarantee of the obligations of the Purchaser under this
Agreement, in form and substance mutually satisfactory to the
Parties, duly executed by Saxon Energy Services Inc.;
(iii) such resolutions of the Purchaser as are required to approve and
authorize the purchase of the Assets by the Purchaser; and
(iv) documentation to effect the transfer of the Employees to the
Purchaser in accordance with Article 9, duly executed by the
Purchaser.
(c) On the Closing Date the Vendor 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.
4. VENDOR REPRESENTATIONS
The Vendor covenants with and represents and warrants to the Purchaser
realizing that the Purchaser is relying upon such covenants,
representations and warranties, that:
(a) The 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, 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) The Vendor has good and marketable title to the Assets, and the Assets
are owned by the Vendor free and clear of all Encumbrances. 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 Vendor's knowledge,
threatened or contemplated against or with respect to, the Assets or
the Vendor that would reasonably be expected to adversely affect the
Purchaser's possession, ownership or operation of any of the Assets;
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(d) The Vendor is 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 the Vendor of, or a
failure on the part of the Vendor to comply with, any Legal
Requirement in respect to the Vendor's possession, ownership or
operation of the Assets, 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) the Vendor has not 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 the Vendor's possession, ownership or operation of the
Assets;
(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 Vendor will not conflict with any
term or provision of the articles or certificate of incorporation or
bylaws or resolutions of the directors of the Vendor, 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 the
Vendor is a party or by which it is bound, or violate any judgment,
decree, order, statute, rule or regulation applicable to the Vendor,
which default, breach or violation would reasonably be expected to
have a material adverse effect on the Assets. Except for approval by
the Vendor's board of directors obtained on or prior to the date
hereof, no consents, provisions or approvals are necessary for the
Vendor to execute and deliver this Agreement and consummate the
transactions contemplated hereby;
(f) This Agreement has been duly authorized, executed and delivered by the
Vendor and all other documents executed and delivered by the Vendor
pursuant hereto have been duly authorized, executed and delivered by
the Vendor and constitute legal, valid and binding obligations of the
Vendor 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);
(g) Schedule "A" constitutes a complete and accurate list and description
as of the date hereof of the Rig and all related inventory, equipment
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 Vendor's 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 the Vendor holds all
Environmental Permits required by Environmental Laws to be held by it
for the operation of the Assets as operated by the Vendor on the date
hereof, except to the extent that any non-compliance with
Environmental Laws or
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failure to obtain an Environmental Permit would not reasonably be
expected to result in a material Environmental Claim against the
Assets. The Vendor has 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 the Vendor's 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 the Vendor received written notice of any of the same.
To the best of Vendor's knowledge, there has not been a release of any
Hazardous Substance on or from any Asset with respect to which the
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 the
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 4(h) shall constitute the sole and
exclusive representations provided by the Vendor regarding
environmental matters;
(i) The Vendor has not assigned or in any way restricted its rights nor
has any third party restricted the Vendor's 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 Vendor 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 Purchaser shall have any obligation or liability;
(k) Since April 15, 2005 the Assets have been maintained by the Vendor in
substantially the same condition as when inspected by the Purchaser,
reasonable wear and tear excepted, and no Assets have been transferred
or lost (subject to consumption and replenishment of inventory in the
Ordinary Course of Business);
(l) The Vendor is not in a state of bankruptcy or moratorium and has not
sought protection under any bankruptcy or moratorium law or in general
sought or initiated any action designed to receive protection against
creditors in general;
(m) To the best of Vendor's knowledge, the Assets together with the assets
being sold pursuant to the Peru Purchase Agreement (131 and 145)
constitute all of the assets of the Vendor and its affiliates in
Iquitos, Peru.
5. VENDOR'S REPRESENTATIONS-SURVIVAL AND OTHER MATTERS
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET OUT IN CLAUSE 4 HERETO,
THE VENDOR IS SELLING AND THE PURCHASER IS PURCHASING THE ASSETS "AS IS,
WHERE IS" AND "WITH ALL FAULTS," AND THE VENDOR IS 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 4 OF
THIS AGREEMENT.
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Notwithstanding anything to the contrary herein expressed or implied, it is
expressly agreed and understood that the representations and warranties
contained in clause 4 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 4 may be made by the
Purchaser unless written notice of such claim has been given to the Vendor
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 8, except that the Basket and Cap set forth in clause 8(a) shall
not apply to breaches of the representations and warranties in clauses
4(a), 4(b), 4(e), 4(f), 4(j), 4(k) and 4(l) and the Basket set forth in
clause 8(a) shall not apply to breaches of the representations and
warranties in clause 4(i). This clause shall not limit enforceability of
any covenant or agreement of the Parties which contemplates performance
after the Closing.
6. PURCHASER'S REPRESENTATIONS
The Purchaser covenants with and represents and warrants to the Vendor
realizing that the Vendor is 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 Vendor 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 have been duly authorized, executed and
delivered by the Purchaser and 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 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 Vendor shall have any obligation or liability.
7. 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 6 of this Agreement shall 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 6 may be made by the
Vendor unless written notice of such claim has been given to the Purchaser
within the two (2) year time period referred to above.
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This clause shall not limit enforceability of any covenant or agreement of
the Parties which contemplates performance after the Closing.
8. INDEMNITIES
(a) The Vendor shall:
(i) be 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 Vendor's ownership,
occupancy, use or operation of the Assets on or before the
Closing Date;
B. any Environmental Claim which arises out of the Vendor's
ownership, use or operation of the Assets on or before the
Closing Date;
C. Vendor's employment of any former employees of the Vendor,
including, without limitation, (1) any liability for unpaid
compensation, severance, benefits and other payments owed to
Fixed Term Employees, to the extent such liability exceeds
the amount of the adjustment to the Purchase Price pursuant
to Article 9, and (2) any liability for compensation,
bonuses, accrued severance or other payments owed to
Indefinite Term Employees;
D. any liabilities of the Vendor, including without limitation,
any liabilities of the Vendor for customs duties and taxes
other than those for which the Purchaser is responsible
pursuant to clause 2(e) and other than liabilities for
customs duties, taxes and similar assessments resulting from
actions or omissions of the Purchaser after the Closing
Date; and
E. any other occurrence, event, condition or circumstance in
connection with the Vendor's ownership or operation of the
Assets occurring prior to the Closing Date; and
(ii) 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 8(a)(i).
The Vendor will have no obligation to indemnify the Purchaser
Indemnitees pursuant to this clause 8(a) until the aggregate amount of
all Damages suffered by the Purchaser Indemnitees exceeds $24,000 (the
"BASKET"), in which case the Vendor shall be liable to the Purchaser
Indemnitees for all Damages in excess of, but not including, the
Basket. The Vendor's obligation to indemnify the Purchaser Indemnitees
pursuant to this clause 8(a) shall not exceed an aggregate amount
equal to (A) if the transactions contemplated by the Other Purchase
Agreements are not consummated, $1,000,000, (B) if the transaction
contemplated
11
by the Peru Purchase Agreement (131 and 145) is consummated, but the
transactions contemplated by the Colombia Purchase Agreement and the
Peru Purchase Agreement (228) are not or have not been consummated,
$2,750,000 reduced (on a dollar-for-dollar basis) by the aggregate
amount of Damages from which the purchaser under the Peru Purchase
Agreement (131 and 145) has been indemnified, (C) if the transactions
contemplated by the Colombia Purchase Agreement and the Peru Purchase
Agreement (228) are 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
Colombia Purchase Agreement or the Peru Purchase Agreement (228) has
been indemnified, or (D) if the transactions contemplated by all the
Other Purchase Agreements are 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
Vendor, the limitation set forth in the preceding sentence shall not
apply and, to the extent the Purchaser Indemnitees' Damages pursuant
to clause 8(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
Vendor's obligation to indemnify the Purchaser Indemnitees under this
Agreement exceed an amount equal to the Purchase Price.
(b) The Purchaser shall:
(i) be liable to the Vendor and its directors, officers, employees,
agents, parent, subsidiaries and affiliates (collectively, the
"VENDOR INDEMNITEES") for all Damages which the Vendor 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 the 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 8(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 8(b) shall not exceed an aggregate amount equal to the
Cap. The limitations provided in the two preceding sentences shall not
apply in the event of a failure of consideration.
(c) In addition to clause 8(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,
12
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
Vendor or any affiliate of the Vendor. 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 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 8:
13
(i) The Indemnitee shall use commercially reasonable efforts to
mitigate any Damages that such Indemnitee asserts under this
Article 8. 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 8 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.
(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. The Parties agree that it
is their intent that notwithstanding anything to the contrary
contained in this Agreement, neither the Vendor nor the Purchaser
shall be liable to any other Party, its parent, subsidiaries or
affiliates or, its or their 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.
9. EMPLOYEES
The Vendor shall cooperate with the Purchaser to effectuate the transfer to
the Purchaser of the Employees listed on Schedule "C" (the "EMPLOYEES").
With respect to Employees who are employed by the Vendor on a fixed term
basis on the Closing Date ("FIXED TERM EMPLOYEES"), at the Closing the
Vendor 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 Purchase Price 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. With respect to Employees who are employed by the Vendor on
an indefinite term basis ("INDEFINITE TERM EMPLOYEES"), the Vendor 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 Vendor's termination
of the employment of such Indefinite Term Employees.
14
10. ACCESS
During the period commencing on the Closing Date and ending on the earlier
of (i) the date on which ▇▇▇▇▇▇ Drilling of Oklahoma Incorporated and the
Purchaser enter into a sublease covering the Premises, or (ii) December 31,
2005 (the "ACCESS PERIOD"), the Vendor shall permit the Purchaser, its
employees, contractors and representatives to have access to the Premises
for the purpose of housing the Assets and allowing the Purchaser, its
employees, contractors and representatives to perform repair and upgrade
work on the Rig (the "ACTIVITIES") on the terms and conditions set forth in
this clause 10. Notwithstanding the foregoing, the Vendor may terminate the
access granted hereunder upon three (3) days prior written notice to the
Purchaser upon any breach by the Purchaser of this clause 10. In
consideration of the Vendor's grant of access to the Premises, the
Purchaser agrees to pay the rent under the Iquitos Yard Lease, which the
Parties agree is $1,000 per month. During the Access Period the Purchaser
shall carry, and shall ensure that its contractors carry, reasonable
liability insurance in regards to the Activities, and further agrees to
furnish the Vendor copies of such insurance policies or certificates of
such insurance from time to time upon request. The Purchaser has been
furnished a copy of the Iquitos Yard Lease and agrees to abide by the terms
thereof at all times during the Access Period. The Purchaser shall,
promptly and at its sole cost and expense, repair any damage to the
Premises caused by the Activities and otherwise hold the Vendor harmless
from any claims brought on behalf of the landlord arising from a breach by
the Purchaser, its employees, contractors or representatives of the terms
of the Iquitos Yard Lease. The Purchaser shall be solely responsible for
the actions of its employees, contractors and representatives relating to
the Activities and entry of same onto and into the Premises, and shall
indemnify and hold harmless the Vendor and its directors, officers,
employees, agents, parent, subsidiaries and affiliates from and against any
and all causes of action, claims, damages, demands, liability, losses and
suits of every type and character arising or resulting from any property
damage and/or bodily injury sustained by any Person as a result of the
Activities or the Purchaser's entry onto or into the Premises, INCLUDING,
WITHOUT LIMITATION, CAUSES OF ACTION, CLAIMS, DAMAGES, DEMANDS,
LIABILITIES, LOSSES AND SUITS CAUSED OR CONTRIBUTED TO BY ANY INDEMNIFIED
PARTY'S SOLE OR CONCURRENT ORDINARY NEGLIGENCE THAT DOES NOT AMOUNT TO
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IT BEING THE PURCHASER'S INTENTION
TO HEREBY INDEMNIFY SUCH PARTIES AGAINST THEIR OWN STRICT LIABILITY AND
THEIR OWN SOLE OR CONCURRENT ORDINARY NEGLIGENCE. The Purchaser
acknowledges and agrees that the access granted hereby is subject in all
respects to the Vendor's rights under the Iquitos Yard Lease and that the
Vendor has made no representations, warranties or promises regarding the
Purchaser's continued use or enjoyment of the Premises during the Access
Period.
11. NATIONALIZATION
The Vendor represents and warrants that the Assets which are subject to the
SUNAT Obligations are fully and permanently nationalized. Except as
provided in the preceding sentence, no representation and warranty (express
or implied) is made regarding the import status of the Assets. This
representation and warranty shall survive the Closing for an unlimited
period.
Notwithstanding anything contrary in this Agreement, the Vendor shall:
(i) be liable to the Purchaser Indemnitees for all Damages which the
Purchaser may suffer, pay or incur; and
(ii) 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 suffer, pay or incur,
15
arising out of, resulting from or in any way related to, a default in the
discharge of the SUNAT Obligations.
For certainty, the Parties acknowledge that neither the Basket nor the Cap
apply to this clause 11. In no event will the Vendor's obligation to
indemnify the Purchaser Indemnitees under this Agreement exceed an amount
equal to the Purchase Price. The Parties agree that the procedures and
limitations set forth in clauses 8(d) and 8(e) shall apply with respect to
any claim for indemnification under this Article 11.
12. 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.
13. 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.
14. 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,
shall be resolved in accordance with the procedures specified in this
Article 14, 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 14 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 14(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 14(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 14(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 14(d), relating to provisional
remedies,
16
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 14
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 14.
(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 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 14(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
17
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 17.
(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.
15. 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.
16. TIME
Time shall be of the essence of this Agreement.
17. 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:
VENDOR: c/▇ ▇▇▇▇▇▇ Drilling Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
18
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.
18. PRIOR AGREEMENTS AND AMENDMENTS
This Agreement, together with the Schedules hereto 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.
19. 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.
20. INVALIDITY OF A PARTICULAR PROVISION
The invalidity of any particular provision of this Agreement shall not
affect any other provision hereto, but this Agreement shall be construed as
if such invalid provision were omitted.
19
21. ASSIGNMENT
Neither the Vendor, 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.
22. 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 Vendor, 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.
23. 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.
24. 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.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
▇▇▇▇▇▇ DRILLING COMPANY OF OKLAHOMA
INCORPORATED, SUCURSAL DEL PERU
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: VP
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SAXON SERVICES DEL PERU S.A.
By: /s/ W ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Director
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[Agreement for Purchase and Sale of Assets (Peru) [Rig 250] - Signature Page]
The following schedules to the Agreement for Purchase and Sale of Assets
(Peru)[Rig 250] dated as of May 6, 2005, by and between ▇▇▇▇▇▇ Drilling Company
of Oklahoma Incorporated, Secursal del Peru 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
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Schedule A - Rig & Inventory and Spare Parts
Schedule B - Motor Vehicle
Schedule C - Employees