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EXHIBIT 10.20
ASSET PURCHASE AGREEMENT
BETWEEN
XXXXXXXXX DRILLING COMPANY
AND
HONDO DRILLING COMPANY
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TABLE OF CONTENTS
Page
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ARTICLE I
THE ASSET PURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 The Asset Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PDC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.1 Organization, Standing and Power . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.2 Authority; Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HONDO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3.1 Organization, Standing and Power. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3.2 Authority; Non-Contravention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3.3 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3.4 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.5 Drilling Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.6 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.7 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.8 Normal Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.9 Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.2 Reasonable Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.3 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.4 Use of Office Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.5 PDC Assumption of Drilling Contracts; Hondo Invoicing of Direct Costs . . . . . . . . 6
SECTION 4.6 Sales and Transfer Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.7 Real Estate Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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ARTICLE V
CONDITIONS PRECEDENT TO THE ASSET PURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.1 Conditions to Each Party's Obligation to Effect the Asset Purchase . . . . . . . . . 6
SECTION 5.2 Conditions to Obligation of Hondo to Effect the Asset Purchase . . . . . . . . . . . 7
SECTION 5.3 Conditions to Obligations of PDC to Effect the Asset Purchase . . . . . . . . . . . . 7
ARTICLE VI
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.4 Entire Agreement; No Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . 10
SECTION 6.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.6 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.8 Enforcement of This Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated November __, 1996 (this "Agreement"),
among XXXXXXXXX DRILLING COMPANY ("PDC"), a Delaware corporation and a
wholly-owned subsidiary of Xxxxxxxxx Energy, Inc. ("PEC"), and HONDO DRILLING
COMPANY, a New Mexico corporation ("Hondo").
WITNESSETH:
WHEREAS, Hondo owns 12 drilling rigs, related drilling equipment and
certain vehicles (collectively, the "Drilling Rigs, Equipment and Vehicles"),
and an office building and parking lot in Midland, Texas, and a yard in Odessa,
Texas (collectively, the "Real Property"), all as more particularly described
on Annex 1, in the case of the Drilling Rigs, Equipment and Vehicles and Annex
2, in the case of the Real Property;
WHEREAS, PDC desires to purchase, and Hondo desires to sell, all of
Hondo's right, title and interest in the Drilling Rigs, Equipment and Vehicles
and in the Real Property (the "Asset Purchase") for the consideration set forth
and provided for herein; and
WHEREAS, PDC, on the one hand, and Hondo, on the other, desire to make
certain representations, warranties and agreements in connection with the Asset
Purchase.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties agree
as follows:
I
THE ASSET PURCHASE
.1 The Asset Purchase. Upon the terms and subject to the conditions of
this Agreement, at the Closing (as defined in Section 1.3 below) provided
herein, PDC shall purchase from Hondo and Hondo shall sell to PDC, all of
Hondo's right, title and interest in and to the Drilling Rigs, Equipment and
Vehicles and in and to the Real Property.
.2 Purchase Price. PDC agrees to pay to Hondo at the Closing a total
of $2,250,000 (the "Purchase Price") for all of Hondo's right, title and
interest in and to the Drilling Rigs, Equipment and Vehicles and in and to the
Real Property. The Purchase Price shall be paid as follows: (i) delivery by
PDC to Hondo of a cashier's check in the amount of $1,915,000, and (ii)
delivery by Stubbeman XxXxx Xxxxx Xxxxxxxx & Xxxxxxx, Inc. ("Stubbeman") to
Hondo of the $235,000 currently being held by Stubbeman as Escrow Agent for
Hondo and PDC.
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.3 Closing. The closing of the Asset Purchase (the "Closing") shall
take place at 9:00 a.m., local time, on the date of this Agreement at the
offices of Xxxxxxxxx Energy, Inc., in Snyder, Texas or at such other time and
place as PDC and Hondo shall agree.
II
REPRESENTATIONS AND WARRANTIES OF PDC
PDC represents and warrants to Hondo as follows:
.1 Organization, Standing and Power. PDC is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has the requisite corporate power and authority to carry on its
business as now being conducted.
.2 Authority; Non-Contravention. PDC has all requisite power and
authority to enter into this Agreement and to consummate the Asset Purchase.
The execution and delivery by PDC of this Agreement and the consummation by PDC
of the Asset Purchase have been duly authorized by all necessary corporate
action on the part of PDC. This Agreement has been duly executed and delivered
by PDC and (assuming the valid authorization, execution and delivery of this
Agreement by Hondo) constitutes a valid and binding obligation of PDC
enforceable against PDC in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). No filing or registration
with, or authorization, consent or approval of, any domestic (federal and
state), foreign or supranational court, commission, governmental body,
regulatory agency, authority or tribunal (a "Governmental Agency") is required
by or with respect to PDC in connection with the execution and delivery of this
Agreement by PDC or is necessary for the consummation by PDC of the Asset
Purchase and the other transactions contemplated by this Agreement.
III
REPRESENTATIONS AND WARRANTIES OF HONDO
.1 Organization, Standing and Power. Hondo is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of New Mexico and has the requisite corporate power and authority to carry on
its business as now being conducted.
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.2 Authority; Non-Contravention. Hondo has all requisite power and
authority to enter into this Agreement and to consummate the Asset Purchase.
This Agreement has been duly executed and delivered by Hondo and (assuming the
valid authorization, execution and delivery of this Agreement by PDC)
constitutes a valid and binding obligation of Hondo enforceable against it in
accordance with its terms, except to the extent enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law). The execution and delivery of this Agreement do not, and
the consummation of the Asset Purchase and compliance with the provisions
hereof will not, conflict with, or result in any violation of, or default (with
or without notice of lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to the loss of a
material benefit under, or result in the creation of any lien, security
interest, charges or encumbrances upon any of the properties or assets of Hondo
under, any provision of (i) the Articles of Incorporation or Bylaws of Hondo
(true and complete copies of which as of the date hereof have been delivered to
PDC), (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise or license
applicable to Hondo or (iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Hondo or any of its respective
properties or assets. No filing or registration with, or authorization,
consent or approval of, any Governmental Entity is required by or with respect
to Hondo in connection with the execution and delivery of this Agreement by
Hondo is necessary for the consummation by Hondo of the Asset Purchase.
.3 Environmental Matters.
(a) Except to the extent that the inaccuracy of any of
the following, individually or in the aggregate, would not have a Material
Adverse Effect on Hondo, to the actual knowledge of Hondo:
(i) Hondo holds, and is in compliance with and has been
in compliance with for the last three years, all Environmental
Permits, and is otherwise in substantial compliance and has been in
substantial compliance for the last three years with, all applicable
Environmental Laws and there is no condition that is reasonably likely
to prevent or materially interfere prior to the Effective Time with
compliance by Hondo with Environmental Laws;
(ii) no modification, revocation, reissuance, alteration,
transfer or amendment of any Environmental Permit, or any review by,
or approval of, any third party of any Environmental Permit is
required in connection with the execution or delivery of this
Agreement or the consummation by Hondo of the transactions
contemplated hereby or the operation of the business of Hondo on the
date of the Closing;
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(iii) Hondo has not received any Environmental Claim, nor
has any Environmental Claim been threatened against Hondo;
(iv) Hondo has not entered into, agreed to or is not
subject to any outstanding judgment, decree, order or consent
arrangement with any governmental authority under any Environmental
Laws, including without limitation those relating to compliance with
any Environmental Laws or to the investigation, cleanup, remediation
or removal of Hazardous Materials;
(v) there are no circumstances that are reasonably likely
to give rise to liability under any agreements with any person
pursuant to which Hondo would be required to defend, indemnify, hold
harmless, or otherwise be responsible for any violation by or other
liability or expense of such person, or alleged violation by or other
liability or expense of such person, arising out of any Environmental
Law; and
(vi) there are no other circumstances or conditions that
are reasonably likely to give rise to liability of Hondo under any
Environmental Laws.
(b) For purposes of this Agreement, the terms below shall
have the following meanings:
"Environmental Claim" means any written complaint, notice,
claim, demand, action, suit or judicial, administrative or arbitral
proceeding by any person to Hondo asserting liability or potential
liability (including without limitation, liability or potential
liability for investigatory costs, cleanup costs, governmental
response costs, natural resource damages, property damage, personal
injury, fines or penalties) arising out of, relating to, based on or
resulting from (i) the presence, discharge, emission, release or
threatened release of any Hazardous Materials at any location, (ii)
circumstances forming the basis of any violation or alleged violation
of any Environmental Laws or Environmental Permits, or (iii) otherwise
relating to obligations or liabilities of Hondo under any
Environmental Law.
"Environmental Permits" means all permits, licenses,
registrations, exemptions and other governmental authorizations
required under Environmental Laws for Hondo to conduct its operations
as presently conducted.
"Environmental Laws" means all applicable foreign, federal,
state and local statutes, rules, regulations, ordinances, orders,
decrees and common law relating in any manner to pollution or
protection of the environment, to the extent and in the form that such
exist at the date hereof.
"Hazardous Materials" means all hazardous or toxic substances,
wastes, materials or chemicals, petroleum (including crude oil or any
fraction thereof) and petroleum
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products, asbestos and asbestos-containing materials, pollutants,
contaminants and all other materials and substances, including but not
limited to radioactive materials, regulated pursuant to any
Environmental Laws.
"Material Adverse Effect" means any change or effect that is
or, as far as can reasonably be determined, is likely to be materially
adverse to the assets, properties, conditions (financial or
otherwise), business or results of operations of Hondo.
.4 Title. Set forth in Annex 1 and Annex 2 is a description of the
Drilling Rigs, Equipment and Vehicles and of the Real Property, respectively,
which description is accurate and complete in all material respects. Hondo has
good and, in the case of the Real Property, indefeasible title to a 100%
interest in the Drilling Rigs, Equipment and Vehicles and in the Real Property,
subject to no Liens except for (i) Liens for taxes not yet delinquent or the
validity of which is being contested in good faith, and (ii) any Liens arising
by operation of law securing obligations not yet overdue. For purposes of this
Agreement "Liens" means liens, mortgages, pledges, security interests,
encumbrances, claims or charges of any kind.
.5 Drilling Contracts. Set forth in Annex 3 is a true and correct list
of all drilling contracts (collectively, the "Drilling Contracts") to which
Hondo is a party as of the date of this Agreement. A copy of each of the
Drilling Contracts has previously been delivered to PDC.
.6 Litigation. There is no suit, action, investigation or proceeding
pending or, to the knowledge of Hondo, threatened against Hondo at law or in
equity before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind.
.7 Brokers. Other than Xxxxxxx & Co., no broker, investment banker or
other person is entitled to any broker's, finder's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Hondo. Any fee or commission
payable to Xxxxxxx & Co. shall be paid by Hondo.
.8 Normal Operations. All xxxxx currently being drilled by Hondo under
the Drilling Contracts are drilling under normal operations.
.9 Management. No member of Hondo's management is a stockholder of
Hondo, directly or indirectly.
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IV
ADDITIONAL AGREEMENTS
.1 Fees and Expenses. All costs and expenses incurred by PDC in
connection with this Agreement and the transactions contemplated hereby shall
be paid by PDC; such costs and expenses incurred by Hondo shall be paid by
Hondo.
.2 Reasonable Efforts. Upon the terms and subject to the conditions
set forth in this Agreement, each of the parties agrees to use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Asset Purchase and the other transactions
contemplated by this Agreement and the prompt satisfaction of the conditions
hereto.
.3 Public Announcements. Unless otherwise required by law or the rules
and regulations of the Securities and Exchange Commission, neither PDC, PEC nor
Hondo shall issue any such press release or make any public statement with
respect to the Asset Purchase prior to Closing.
.4 Use of Office Space. PDC agrees that for a period of up to 150 days
following the Closing, Hondo may use the computer, without charge, and share
office space in the Hondo office building on a rent-free basis, both for the
purpose of winding up Hondo's operations.
.5 PDC Assumption of Drilling Contracts; Hondo Invoicing of Direct
Costs. Effective as of 7:00 a.m. Midland, Texas time on the date of this
Agreement ("Effective Time of Assumption"), PDC shall assume all obligations
and rights and benefits of Hondo under each of the Drilling Contracts. In
addition, within 30 days following Closing, Hondo shall invoice PDC for all
direct costs incurred by Hondo under each of the Drilling Contracts prior to
the Effective Time of Assumption, which invoices shall be paid to Hondo by PDC
within 30 days of receipt by PDC.
.6 Sales and Transfer Taxes. Hondo agrees to pay any and all sales
and/or transfer taxes due with respect to the Asset Purchase.
.7 Real Estate Taxes. Hondo and PDC agree that any special assessments
or other charges the Real Property shall be prorated between Hondo and PDC to
the date of Closing.
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V
CONDITIONS PRECEDENT TO THE ASSET PURCHASE
.1 Conditions to Each Party's Obligation to Effect the Asset Purchase.
The respective obligations of each party to effect the Asset Purchase shall be
subject to the fulfillment or waiver (where permissible) at or prior to the
Closing Date of each of the following conditions:
(a) No Order. No Governmental Entity or court of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any law, rule, regulation, executive order, decree, injunction or other
order (whether temporary, preliminary or permanent) which is then in effect and
has the effect of prohibiting the Asset Purchase or any of the other
transactions contemplated hereby; provided that, in the case of any such
decree, injunction or other order, each of the parties shall have used
reasonable best efforts to prevent the entry of any such injunction or other
order and to appeal as promptly as practicable any decree, injunction or other
order that may be entered.
(b) Consents. Hondo shall have received written consents
of the other party or parties to each of the Drilling Contracts for the
assumption thereof by PDC pursuant to the provisions of Section 4.6 of this
Agreement and delivered copies thereof to PDC.
.2 Conditions to Obligation of Hondo to Effect the Asset Purchase. The
obligation of Hondo to effect the Asset Purchase shall be subject to the
fulfillment at or prior to the Closing of the following additional conditions;
provided that Hondo may waive any of such conditions in its sole discretion:
(a) Performance of Obligations; Representations and
Warranties. PDC shall have performed in all material respects each of its
agreements contained in this Agreement required to be performed on or prior to
the Closing, each of the representations and warranties of PDC contained in
this Agreement shall be true and correct on and as of the Closing.
(b) Officers' Certificate. PDC shall have furnished to
Hondo a certificate, dated the Closing, signed by the appropriate officers of
PDC, certifying to the effect that to the best of the knowledge and belief of
PDC, the conditions set forth in Section 5.1 and this Section 5.2(a) have been
satisfied in full.
(c) Payment of Purchase Price. PDC shall have made
delivery of the Purchase Price as provided in Section 1.2 of this Agreement.
.3 Conditions to Obligations of PDC to Effect the Asset Purchase. The
obligations of PDC to effect the Asset Purchase shall be subject to the
fulfillment at or prior to the Closing of the following additional conditions,
provided that PDC may waive any such conditions in its sole discretion:
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(a) Performance of Obligations; Representations and
Warranties. Hondo shall have performed in all material respects each of its
agreements contained in this Agreement required to be performed on or prior to
the Closing, each of the respective representations and warranties of Hondo
contained in this Agreement shall be true and correct on and as of the Closing
shall be true in all material respects on and as of the Closing.
(b) Officers' Certificate. Hondo shall have furnished to
PDC a certificate, dated the Closing, certifying to the effect that to the best
of the knowledge and belief of Hondo, the conditions set forth in Section 5.1
and this Section 5.3(a) have been satisfied.
(c) Opinion of Counsel. PDC shall have received an
opinion of counsel from Stubbeman, McRae, Sealy, Xxxxxxxx & Xxxxxxx, Inc.,
Midland, Texas, counsel to Hondo, dated the Closing, substantially to the
effect that:
(i) The incorporation, existence and good standing of
Hondo are as stated in this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by Hondo, and (assuming the due and valid authorization,
execution and delivery by PDC) constitutes the legal, valid and
binding agreement of Hondo enforceable against Hondo in accordance
with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(iii) The execution and performance by Hondo of this
Agreement will not violate the Articles of Incorporation or Bylaws of
Hondo and will not violate, result in a breach of, or constitute a
default under, any material lease, mortgage, contract, agreement,
instrument, law, rule, regulation, judgment, order or decree known to
such counsel to which Hondo is a party or to which it or any of its
properties or assets may be bound.
(iv) To the knowledge of such counsel, there are no
actions, suits or proceedings, pending or threatened against or
affecting Hondo by any Governmental Entity which seek to restrain,
prohibit or invalidate the transactions contemplated by this
Agreement.
(v) To the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental agency
or body which has not been obtained is required on behalf of Hondo for
consummation of the transactions contemplated by this Agreement.
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In rendering such opinion, counsel for Hondo may rely as to matters of fact
upon the representations of officers of Hondo contained in any certificate
delivered to such counsel and certificates of public officials.
Such opinion shall be limited to the laws of the United States of
America and the State of Texas.
(d) Xxxx of Sale and Assignment. Hondo shall have
executed and delivered the Xxxx of Sale and Assignment covering the Drilling
Rigs, Equipment and Vehicles in the form attached hereto as Exhibit A.
(e) General Warranty Deeds. Hondo shall have executed
and delivered the respective General Warranty Deeds in the respective forms
attached hereto as Exhibit B (Hondo office building and parking lot) and
Exhibits C and D (Hondo yard).
(f) Title Insurance. PDC shall have obtained title
commitments for title insurance on the Real Property.
(g) Titles. Hondo shall have endorsed and delivered the
title certificates to the motor vehicles described in Annex 1.
VI
GENERAL PROVISIONS
.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, sent by overnight
courier or telecopied (with a confirmatory copy sent by overnight courier) to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to PDC, to:
Xxxxxxxxx Energy, Inc.
0000 Xxxxxx Xxxxxxx
X.X. Xxxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
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with copies to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
(b) if to Hondo, to:
Xxxx Xxxxxx, President
Hondo Drilling Company
Xxxx Xxxxxx Xxxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
with copies to:
Xxxxx X. Xxxxxx, Esq.
Stubbeman, McRae, Sealy, Xxxxxxxx
& Xxxxxxx, Inc.
Fasken Center, Tower Two
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
.2 Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless
otherwise indicated, and the words "hereof', "herein" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement, unless the context otherwise requires. The table
of contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
.3 Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
.4 Entire Agreement; No Third-Party Beneficiaries. This Agreement,
including the documents and instruments referred to herein, (a) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (b) is not intended to confer upon any person other than the parties any
rights or remedies hereunder; provided, however, that legal counsel for Hondo
hereto may
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rely upon the representations and warranties of Hondo contained herein and in
the certificates delivered pursuant to Sections 5.3(b) and (c).
.5 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.
.6 Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
.7 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any
manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions be consummated as originally
contemplated to the fullest extent possible.
.8 Enforcement of This Agreement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
IN WITNESS WHEREOF, PDC and Hondo have executed this Agreement as of
the date first written above.
PDC:
XXXXXXXXX DRILLING COMPANY
By: /s/ XXXXXX X. XXXXXXX
_______________________
Xxxxxx X. Xxxxxxx
Chief Executive Officer
-11-
15
Attest:
/s/ XXXXX X. XXXXX
____________________________________
Xxxxx X. Xxxxx, Secretary
HONDO:
HONDO DRILLING COMPANY
By: /s/ XXXX XXXXXX
_____________________
Xxxx Xxxxxx
President
-12-
16
ANNEX 1
TO
ASSET PURCHASE AGREEMENT
DESCRIPTION OF DRILLING RIGS, EQUIPMENT
AND VEHICLES
17
ANNEX 2
TO
ASSET PURCHASE AGREEMENT
DESCRIPTION OF REAL PROPERTY
VII. Hondo Office Building:
000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxx
North 100 feet of the NW/4 of Block 8, Original Town, Midland
County, Texas
VIII. Parking Lot:
South 50 feet of the NW/4 of Block 8, Original Town, Midland
County, Texas
IX. Odessa Yard:
Xxx 0, Xxxxx 0, Xxxxx Xxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxx,
containing 1.033 acres.
Xxxxxxx 00, Xxxxx 00, Xxxxxxxx 0 Xxxxx, X&X Xx. Xx. Xxxxxx,
Xxxxx Xx. 00X, Xxxxx Xxxxxx, Xxxxx, containing 7.367 acres.
Xxxxxxx 00, Xxxxx 00, Xxxxxxxx 0 Xxxxx, X&X Xx. Xx. Xxxxxx,
Xxxxx Xx. 00X, Xxxxx Xxxxxx, Xxxxx, containing 2.500 acres
18
ANNEX 3
TO
ASSET PURCHASE AGREEMENT
LIST OF DRILLING CONTRACTS
19
EXHIBIT A
XXXX OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that, pursuant to that certain
asset purchase agreement, dated of even date herewith ("Asset Purchase
Agreement") between XXXXXXXXX DRILLING COMPANY ("PDC"), a Delaware corporation,
and HONDO DRILLING COMPANY ("HONDO"), A New Mexico corporation (HONDO is
referred to herein as the "Assignor"), the Assignor, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants, bargains, sells, conveys and transfers unto PDC (the
"Assignee"), all of the assignor's right, title and interest in and to (i) the
drilling rigs, equipment and vehicles set forth in Appendix I attached hereto
and incorporated herein by this reference; and (ii) the drilling contracts
described in Appendix II attached hereto and incorporated herein by this
reference.
TO HAVE AND TO HOLD the same unto the Assignee and the
Assignee's successors and assigns forever. The Assignor hereby covenants and
agrees that it has the full right, power and authority to sell, convey and
transfer the foregoing property to the assignee pursuant to this xxxx of sale
and assignment.
IN WITNESS WHEREOF, the Assignor has caused this xxxx of sale
and assignment to be duly executed by its duly authorized officer as of the
____ day of November, 1996.
HONDO DRILLING COMPANY
BY: ______________________
Xxxx Xxxxxx
PRESIDENT
A-1
20
APPENDIX I
TO
XXXX OF SALE AND ASSIGNMENT
FROM
HONDO DRILLING COMPANY
TO
XXXXXXXXX DRILLING COMPANY
(List of Assets Assigned)
[See ANNEX I]
A-2
21
APPENDIX II
TO
XXXX OF SALE AND ASSIGNMENT
FROM
HONDO DRILLING COMPANY
TO
XXXXXXXXX DRILLING COMPANY
(List of Drilling Contracts Assigned)
