EXHIBIT 10.3
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
[RIGS 131 AND 145]
THIS AGREEMENT made this 6th day of May, 2005.
BETWEEN:
XXXXXX DRILLING COMPANY OF OKLAHOMA INCORPORATED, HOME OFFICE
(hereinafter referred to as "VENDOR")
-and-
SAXON SERVICES DE PANAMA 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) two (2) drilling rigs described in Schedule "A" hereto (the
"RIGS") 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," 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,
excluding the records described in subclauses (vii) and (viii) of
the Excluded Assets definition;
"CLOSING" means 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 Closing
Date;
"CLOSING DATE" means the date on which the Closing occurs, which shall
be such date and time as mutually agreed by the Parties after 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 Xxxxxx 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;
"ENVIRONMENTAL PERMITS" shall mean all permits, approvals,
identification numbers, licenses and other authorizations required
under any applicable Environmental Law;
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"ESCROW AGENT" means Xxxxx Xxxxxxx & Xxxx LLP;
"ESCROW AGREEMENT" means the Escrow Agreement dated of even date
herewith among the Parties, Universal Rig Services Corp., Xxxxxx
Drilling Company International Limited, Saxon Services del Peru S.A.,
Saxon Services de Panama S.A., Sucursal Colombia, and the Escrow
Agent;
"ESCROW FUNDS" shall have the meaning set forth in subclause 2(c);
"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 book, stock transfer book and
corporate seal 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;
"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 Vendor's
business consistent with 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 (228);
"PARTIES" means the parties to this Agreement and "Party" means either
of them;
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"PERSON" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, corporation, unincorporated
association, trust or legal representative;
"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 Xxxxxx Drilling Company of Oklahoma Incorporated
and Saxon Services del Peru S.A.;
"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., Xxxxxx Drilling
Company International Limited and Saxon Services del Peru S.A.;
"TOTAL LOSS" means a loss that constitutes a total, actual,
constructive or arranged loss of the Assets under the Vendor's
insurance policies.
(b) INCORPORATION OF SCHEDULES
Attached hereto are the following schedules:
A - Drilling Rigs and Inventory and Consumable Spare Parts
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 Xxxxxx
X. Xxxxxx, Xx., Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx XxXxxx, Xxxxx
Xxxxxxxxxx and Xxx Xxxxxx, 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 $7,000,000. Such Purchase Price shall be allocated among the
Assets as follows:
(i) Rigs - $5,500,000;
(ii) Inventory and Consumable Spare Parts - $1,500,000.
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, any asset
values or other items inconsistent with the allocations set forth
above.
(c) Contemporaneously with the execution and delivery of this Agreement,
the Purchaser has deposited $7,000,000 (the "ESCROW FUNDS") with the
Escrow Agent, which Escrow Funds shall be retained by the Escrow Agent
in trust in accordance with the Escrow Agreement, and
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either applied towards the Purchase Price on the Closing Date or
retained by the Vendor or returned to the Purchaser in accordance with
the terms of this Agreement.
(d) 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 Vendor. The Purchaser shall promptly
indemnify, defend and hold harmless the Vendor, its directors,
officers, employees, agents, parent, subsidiaries and affiliates from
any liability for any Transfer Taxes (including interest and penalties
thereon). The Vendor and Purchaser 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.
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 Vendor shall continue to maintain insurance coverage on
the Assets in accordance with its present arrangements and in material
compliance with all applicable Legal Requirements.
(b) Between the date of this Agreement and the Closing Date, the Vendor
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;
(ii) enter into any drilling contract to which any Rig is subject; 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.
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 Vendor 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 Vendor
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 Vendor or its affiliates.
(b) Until the Closing Date, the Purchaser shall keep confidential all
information regarding the Vendor and the Assets given to the Purchaser
by or on behalf of the Vendor in accordance with and subject to that
certain Confidentiality Agreement dated February 24, 2005 between
Saxon Energy Services Inc. ("SAXON") and the Vendor (the
"CONFIDENTIALITY AGREEMENT").
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(c) 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 "Xxxxxx"
(including any variations or derivations thereof) or any trademarks,
tradenames or logos of Vendor or any of its affiliates.
5. CLOSING
The Closing of the sale of the Assets by the Vendor to the Purchaser shall
be held on the Closing Date at the offices of the Vendor, or at such other
place as mutually agreed by the Parties.
(a) At Closing, the Vendor will deliver to the Purchaser the following:
(i) a xxxx of sale of the Assets in form and substance mutually
satisfactory to the Parties, duly executed by the Vendor;
(ii) to the extent transferable, a transfer 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) a guarantee of the obligations of the Vendor under this
Agreement, in form and substance mutually satisfactory to the
Parties, duly executed by Xxxxxx Drilling Company;
(vi) a joint direction to the Escrow Agent to pay the Escrow Funds to
the account designated by the Vendor;
(vii) a legal opinion of the Vendor's counsel that:
A. the Vendor has been duly incorporated and is validly
existing and in good standing under the laws of its
jurisdiction of incorporation;
B. the Vendor has 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 Vendor and this Agreement and all other documents
contemplated by this Agreement constitute legal, valid and
binding obligations of the Vendor enforceable in accordance
with their respective terms subject to customary exceptions
and qualifications; and
C. all necessary corporate actions and proceedings of the
Vendor have been taken to permit the Assets to be duly and
validly sold, assigned and transferred to the Purchaser;
(viii) such other documents as the Purchaser may reasonably require to
transfer the Assets to the Purchaser in accordance with this
Agreement.
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(b) At Closing, the Purchaser will deliver to the Vendor the following:
(i) a joint direction to the Escrow Agent to pay the Escrow Funds to
the account designated by the Vendor;
(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;
(iii) such resolutions of the Purchaser as are required to approve and
authorize the purchase of the Assets by the Purchaser;
(iv) 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 in accordance with
their respective terms subject to customary exceptions and
qualifications;
C. all necessary action and proceedings of the Purchaser have
been taken to permit the Assets to be duly and validly
purchased 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.
6. VENDOR'S 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, and 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;
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(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;
(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 Vendor of, or a failure on
the part of 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) 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 Vendor
pursuant hereto shall be duly authorized, executed and delivered by
the Vendor and will 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 Rigs 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);
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(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 for the operation
of the Assets as operated by 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
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 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
6(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 right nor has
any third party restricted the Vendor's right 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 Vendor is in compliance
with the terms of such policies in all material respects;
(k) 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;
(l) 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;
(m) Between April 15, 2005 and the date hereof 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);
(n) To the best of Vendor's knowledge, the Assets together with the assets
sold pursuant to the Peru Purchase Agreement (250) constitute all of
the assets of the Vendor and its affiliates in Iquitos, Peru.
7. VENDOR'S REPRESENTATIONS-SURVIVAL AND OTHER MATTERS
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET OUT IN CLAUSE 6 HERETO,
THE VENDOR IS SELLING AND THE PURCHASER IS PURCHASING THE ASSETS "AS IS,
WHERE IS" AND "WITH ALL FAULTS," AND THE
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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 6 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 6 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 6 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 15, except that the Basket and Cap set forth in clause 15(a) shall
not apply to breaches of the representations and warranties in clauses
6(a), 6(b), 6(e), 6(f), 6(k), 6(l) and 6(m) and the Basket set forth in
clause 15(a) shall not apply to breaches of the representations and
warranties in clause 6(i). This clause shall not limit enforceability of
any covenant or agreement of the Parties which contemplates performance
after the Closing.
8. 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 Panama 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, and 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 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
11
which have been provided to the Vendor 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 Vendor shall have any obligation or liability.
9. 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 8 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 8 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; provided that any
such claim shall be subject in all respects to the limitations set forth in
Article 15, except that the Basket and Cap set forth in clause 15(b) shall
not apply to breaches of the representations and warranties in clauses
8(a), 8(b), 8(c) and 8(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 Vendor nor any affiliate of the Vendor
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 15 of this
Agreement or otherwise, if the Vendor or any affiliate of the Vendor had
actual knowledge prior to Closing of such breach.
10. CONDITIONS PRECEDENT TO BOTH 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; and
(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 be in effect, that
restrains, enjoins, invalidates or materially restricts the
transactions contemplated hereby.
11. PURCHASER'S CONDITION PRECEDENT
The obligation of the Purchaser to complete the acquisition of the Assets
pursuant hereto is subject to the following condition being fulfilled or
waived prior to or at Closing:
The Purchaser shall be furnished with the items which the Vendor is to
deliver at Closing pursuant to clause 5(a).
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The foregoing condition shall be for the exclusive benefit of the Purchaser
and may be waived by it in writing in whole or in part.
12. VENDOR'S CONDITION PRECEDENT
The obligation of the Vendor to complete the sale of the Assets pursuant
hereto is subject to the following condition being fulfilled or waived
prior to or at Closing:
The Vendor shall be furnished with the items which the Purchaser is to
deliver at Closing pursuant to clause 5(b).
The foregoing condition shall be for the exclusive benefit of the Vendor
and may be waived by it in writing in whole or in part.
13. SATISFACTION OF CONDITIONS PRECEDENT
The Vendor and the Purchaser shall use all commercially reasonable efforts
to satisfy and assist in the satisfaction of all conditions precedent.
14. TERMINATION
(a) The Parties may terminate this Agreement as provided below:
(i) The Purchaser and the Vendor may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) The Purchaser may terminate this Agreement upon delivery of
written notice to the Vendor if the Assets shall have suffered
damage constituting a Total Loss;
(iii) Either Party may terminate this Agreement upon delivery of
written notice to the other Party 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 July 31, 2005 (the
"EXPIRATION DATE") as a result of the conditions in clauses 10(a)
or 10(b) not having been satisfied on or prior to such date,
provided that the terminating Party shall not have caused such
failure to close;
(iv) 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 the condition set forth in clause
11 not having been satisfied on or prior to such date, provided
that the Purchaser shall not have caused such failure to close;
and
(v) The Vendor 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 the condition
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set forth in clause 12 not having been satisfied on or prior to
such date, provided that the Vendor shall not have caused such
failure to close.
(b) In the event that this Agreement is terminated pursuant to clause
14(a)(i), the Purchaser terminates this Agreement pursuant to clauses
14(a)(ii) or 14(a)(iv), or either Party terminates this Agreement
pursuant to clause 14(a)(iii), the Purchaser shall be entitled to a
refund of the Escrow Funds and the Parties shall execute joint written
instructions directing the Escrow Agent to refund the Escrow Funds to
the Purchaser.
(c) In the event that this Agreement is terminated by the Vendor pursuant
to clause 14(a)(v), the Vendor shall be entitled, as liquidated
damages for the loss of a bargain and not as a penalty, to retain the
Escrow Funds and the Parties shall execute joint written instructions
directing the Escrow Agent to disburse the Escrow Funds to the account
designated by the Vendor.
(d) If any Party terminates this Agreement pursuant to clause 14(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 14, and clauses 17,
18 and 26 shall survive such termination.
15. INDEMNITIES
(a) Provided that the Closing occurs, the Vendor shall:
(i) be liable to the Purchaser, its directors, officers, employees,
agents, parent, 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 any:
A. 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. Environmental Claim which arises out of the Vendor's
ownership, occupancy, use or operation of the Assets on or
before the Closing Date;
C. 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(d) and other than liabilities for customs
duties, taxes and similar assessments resulting from actions
or omissions of the Purchaser after the Closing Date; and
D. 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
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out of, resulting from or in any way related to any of the
foregoing in subclauses A. to D. of clause 15(a)(i).
The Vendor will have no obligation to indemnify the Purchaser
Indemnitees pursuant to this clause 15(a) until the aggregate amount
of all Damages suffered by the Purchaser Indemnitees exceeds $37,000
(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 15(a) shall not exceed an
aggregate amount equal to (A) $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 (250) has been
indemnified, or (B) 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"). In no event will the Vendor's obligation to indemnify the
Purchaser Indemnitees hereunder exceed an amount equal to the Purchase
Price.
(b) Provided that the Closing occurs, the Purchaser shall:
(i) be liable to the Vendor, 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 the ownership, occupancy, use or
operation of the Assets after the Closing Date including, without
limitation, as a result of any (A) violation of any Environmental Laws
or Environmental Permits or (B) 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 15(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 15(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 15(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
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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") 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. 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 15:
(i) The Indemnitee shall use commercially reasonable efforts to
mitigate any Damages that such Indemnitee asserts under this
Article 15. 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 15 shall be reduced by (A) any net amounts
recovered from an unaffiliated third party
16
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 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 Vendor 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.
16. 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.
17. 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.
18. 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 18, 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 18 shall
17
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 18(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 18(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 18(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 18(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 Xxxxxx 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 18
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 Xxxxxx
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 18.
(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
18
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 18(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 of the
Purchaser and the Vendor 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 21.
(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.
19. 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.
19
20. TIME
Time shall be of the essence of this Agreement.
21. 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/x Xxxxxx Drilling Company
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx. and Xxxxx Xxxxxx
Telecopy No.: (000) 000-0000
PURCHASER: Saxon Services de Panama S.A.
c/o Posse, Xxxxxxx & Xxxx Abogados
Xxxxxxx 0 Xx. 00-00 Xxxxx X Xxxx 0
Xxxxxx, Xxxxxxxx
Attention: Xxxxxxx Xxxxxxxxx
Telecopy No.: x000 0000000
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.
22. 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.
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23. 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.
24. 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.
25. ASSIGNMENT
The Vendor or the Purchaser may not assign this Agreement or any part
thereof without the prior written consent of the other.
26. 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.
27. 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.
28. 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-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.
29. 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
21
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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXX DRILLING COMPANY OF OKLAHOMA
INCORPORATED, HOME OFFICE
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: VP
---------------------------------
SAXON SERVICES DE PANAMA S.A.
By: /s/ W XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Director
---------------------------------
[Agreement for Purchase and Sale of Assets [Rigs 131 and 145] - Signature Page]
The following schedule to the Agreement for Purchases and Sale of
Assets [Rigs 131 and 145] dated as of May 6, 2005, by and between Xxxxxx
Drilling Company of Oklahoma Incorporated, Home Office and Saxon Services de
Panama S.A. have been omitted, and the Registrant agrees to furnish
supplementally a copy of any such omitted schedule to the Securities and
Exchange Commission upon its request:
Schedule
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Schedule A - Drilling Rigs and Inventory and Consumable Spare Parts
