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EXHIBIT 99.5
FORM OF
PREFERRED PROVIDER SERVICES AGREEMENT
BETWEEN
GLOBEX ENERGY, INC.
AND
XXXXXXXX INTERNATIONAL COMPANY
DATED AS OF _____________, 2001
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PREFERRED PROVIDER SERVICES AGREEMENT
THIS PREFERRED PROVIDER SERVICES AGREEMENT ("Agreement") is entered
into this ____ day of ________, 2001 ("Effective Date"), between Globex Energy,
Inc., a Cayman Islands corporation and formerly known as Apco Argentina Inc.
("the Company"), and Xxxxxxxx International Company, a Delaware corporation
("Xxxxxxxx"), hereinafter referred to as the "Parties."
WITNESSETH
Whereas, pursuant to the Agreement and Plan of Merger, dated as of
______, 2001 (the "Merger Agreement"), by and among the Company, A-CO Delaware,
Inc., a Delaware corporation and formerly a direct wholly-owned subsidiary of
the Company, and Globex Energy, Inc., a Delaware corporation ("G-CO"), A-CO
merged, on the date hereof, with and into G-CO (the "Merger"), with G-CO as the
surviving corporation in the Merger and the Company changed its name from APCO
Argentina Inc. to Globex Energy, Inc. and G-CO changed its name to ________.
Whereas, the Company and/or its affiliates or subsidiaries, are
investors in, and, in some cases operators of, certain international oil and gas
properties and interests (the "Existing Properties").
Whereas, the Company and/or its affiliates or subsidiaries, intend to
own, invest in, develop and, in some cases, operate additional oil and gas
properties and interests ("Future Properties").
Whereas, the Company recognizes that Xxxxxxxx possesses the technical
experience and knowledge to perform the services and specifically desires that
Xxxxxxxx be the preferred services provider for mid- or downstream services for
a minimum of two (2) Projects (as hereinafter defined) of any kind relating to
Future Properties or Existing Properties where mid- or downstream services are
not subject to contracts and/or arrangements to provide such services with third
parties in existence on the date hereof, subject to the terms of this Agreement
and any applicable Definitive Agreements (as hereinafter defined).
Whereas, Xxxxxxxx, or an affiliate designated by Xxxxxxxx, possessing
the technical experience and knowledge to perform the services, is willing to
perform such services for Company upon the terms, agreements, conditions and
covenants hereinafter set forth;
Now, Therefore, in consideration of the mutual covenants and agreements
hereinafter set forth, the Parties hereto agree as follows:
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1. TERM:
(a) Unless otherwise extended by mutual consent of the
Parties, the term of this Agreement shall extend from the Effective
Date until the earliest to occur of the following events, (i) upon
mutual written consent of the Parties to terminate, (ii) Xxxxxxxx
participation as a Service provider for a minimum of two (2) mid- or
downstream oil and gas Projects returning to Xxxxxxxx its cost plus a
reasonable rate of return, (iii) at such time as Xxxxxxxx or any
affiliate of Xxxxxxxx ceases to own or control more than twenty percent
(20%) of the outstanding voting capital shares of the Company or (iv)
ten (10) years from the date of execution of this Agreement. For
purposes of this Agreement, a reasonable rate of return, shall be
subject to the last sentence of this Section 1(a), an annualized 17%
de-levered, discounted cash flow rate of return, after all applicable
taxes including income taxes (whether paid or accrued). Cost shall
include all direct and indirect costs attributable to the provision of
capital, product or service, including all accounting, payroll and
bookkeeping costs incurred in providing such Services or under this
Agreement, including reasonable allocations of Xxxxxxxx and its parent
company's administrative costs. Direct costs may either be costs that
are directly attributable to the provision of the product or Service
or, in the case of costs that may reasonably apply across multiple
products or Services, an allocation of those common costs. For purposes
of this Agreement, "de-levered, discounted cash flow rate of return"
shall be determined by taking all annual Project after tax cash flows,
including the initial investment, which will be placed in year zero
with a negative sign, without regard to debt, and discounting them to
yield a Net Present Value (NPV) equal to zero. The discount percentage
rate necessary to arrive at an NPV of zero utilizing the described cash
flow streams is the de-levered, discounted cash flow rate. For purposes
of Clause (ii) of Section 1(a), if Xxxxxxxx is awarded and contracts to
provide services for a Project, it shall be deemed to have received its
cost plus a reasonable rate of return on that Project.
(b) Termination of this Agreement shall not terminate the
obligations of either Party to the other (i) for charges and
reimbursements due the other for the performance of Services under any
definitive agreement(s) entered into pursuant to this Agreement, (ii)
with respect to the protection of either Party's confidential or
proprietary information, prepared or supplied by it to the other, or
(iii) any indemnity obligations for the benefit of the other Party
provided for herein, all of which obligations shall survive termination
hereof.
2. SERVICES:
(a) The services that may be provided by Xxxxxxxx to the
Projects are the design, engineering, procurement, construction,
training, operation and maintenance, and provision or arrangement for
provision of capital or financing for any new, reconstructed or
upgraded surface facilities and installations, including but not
limited to: storage, treatment, separation, dehydration, pump stations,
flow lines, oil and/or gas pipelines to and from any properties to
product delivery points, water injection plants, product gathering and
water distribution systems, gas compressors, gas metering stations, gas
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pipelines, and all other mid- or downstream oil and gas facilities (the
"Services") from and after the Effective Date on the terms and
conditions generally set forth in this Agreement and to be embodied in
definitive agreements to be entered into on a project by project basis.
(b) Subject to any limitations set forth in this Agreement,
Services shall be those described in Section 2(a) and such other
services, (i) as may be agreed upon from time to time by the Company
and Xxxxxxxx, or (ii) which are or may be considered to be mid-or
downstream oil and gas services.
3. PREFERRED PROVIDER:
(a) Provided that (i) Xxxxxxxx' bid is materially competitive
(ii) Xxxxxxxx exclusive right, subject to the other terms of this
Agreement, to provide Services hereunder does not inhibit the Company
from obtaining concession rights, entering into joint operating
agreements for concession rights or entering into farm-in agreements,
in each case, on Future or Existing Properties, (iii) the Company
(including its officers and directors) is not breaching any applicable
laws, regulations, orders, contractual provisions or fiduciary duties,
and (iv) Xxxxxxxx offers such Services at competitive prices, quality
equal to or better than competitive products and Services and upon
commercially reasonable terms and conditions, the Company shall use
commercially reasonable best efforts under the circumstances existing
at the time to provide or cause to be provided to Xxxxxxxx, or an
affiliate designated by Xxxxxxxx, the exclusive right to provide itself
or through subcontractors, the Services for Future Properties and
Existing Properties which are not subject to contracts and/or
arrangements to provide such services with third parties in existence
on the date hereof as provided for herein, on a project by project
basis (the "Project"). Xxxxxxxx acknowledges that compliance with the
preceding sentence may require that the Operator (as hereinafter
defined) (whether or not the Company is the Operator) to solicit
competitive bids for the Services. Xxxxxxxx will use its commercially
reasonable best efforts to ensure that all Services contemplated under
this Agreement are designed, engineered, constructed, financed and
operated in as efficient and prudent a manner practicable under the
circumstances.
(b) The Company and its subsidiaries or affiliates intend to
explore for oil and gas on Existing and Future Properties. It is
expected that as discoveries are made or development opportunities are
identified, construction of mid- and downstream facilities and other
Services will be required. In order to facilitate the timely provision
of Services, many of which require sufficient lead-time to determine
the scope of Services that may be required for a Project, the Parties
agree that it will be necessary to timely communicate and to cooperate
in determining the needs of the Company. To effectuate the intent of
this Agreement and to facilitate provision of the most efficient and
prudent Services, the Parties agree to use commercially reasonable best
efforts to work together to accomplish the intent of this Agreement.
(c) The Company agrees to notify Xxxxxxxx, as soon as
reasonably practicable, after it learns any Services may be required or
after the Company is
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contacted by any third party service provider to provide such Services
so as to allow Xxxxxxxx the necessary time to properly evaluate and
recommend needed Services for Future Properties or Existing Properties
not subject to contracts and/or arrangements to provide the Services
with third parties in existence on the date hereof. Such notification
shall include all available information that the Company may legally
disclose (or if restricted by any confidentiality provision/agreement
any information it may disclose if Xxxxxxxx agrees to maintain
confidentiality), relating to the Project for which the Services are
required, as to allow Xxxxxxxx to advise of the Services that it
recommends and to allow Xxxxxxxx to evaluate Project requirements in
order to prepare a scope of Services and estimate of expected Project
costs. Xxxxxxxx shall have the right as soon as practicable after
receipt of such notice to arrange to discuss with the Company's and
where possible the representatives of the Operator for the Project (the
"Operator") the Company's or Operator's requirements and needs with
respect to Services and within a reasonable time thereafter, to prepare
a scope of Services and estimate of expected Project costs. The Company
agrees, subject to Section 3(a), at all times to use its commercially
reasonable best efforts pursuant to the terms of this Agreement to (i)
use and/or encourage the Operator and non-operators to use Xxxxxxxx as
the provider of Services, (ii) if it has voting rights to vote its
interest(s) in favor of using Xxxxxxxx as the provider of Services, and
(iii) exercise any rights it may have to allow Xxxxxxxx to provide the
Services.
(d) If Xxxxxxxx elects not to provide all or any part of the
Services Company and/or Operator, as the case may be, shall be free to
obtain the Services from third party providers; provided Xxxxxxxx shall
have the following rights if the scope of Services to be provided by
the third party differs materially from the scope of Services
originally proposed and/or evaluated by Xxxxxxxx. If any estimate is
obtained for Services which differs materially from the scope of
Services originally proposed and/or evaluated by Xxxxxxxx, Xxxxxxxx
shall be notified of and provided copies of the same and the Company
shall use its commercially reasonable best efforts, subject to Section
3(a), to offer, where the Company has such right, to Xxxxxxxx the right
to provide the new scope of Services on the terms proposed by any such
third party; or, if Company does not have such right, to use its
commercially reasonable best efforts, subject to Section 3(a), to allow
Xxxxxxxx to bid on the new scope of Services. For purposes of this
Agreement "differs materially" shall mean a difference with respect to
the scope of Services such as will result in the Project being
considered different enough that an estimate thereof of such costs
could reasonably be expected to differ by more then fifteen percent
(15%) due to change in size, specification or scope from that which
Xxxxxxxx may have bid.
4. DEFINITIVE AGREEMENTS: Once it is agreed that Xxxxxxxx will provide
Services for a Project, Xxxxxxxx and the Operator shall negotiate and enter into
definitive operating, technical services, design, engineering, procurement,
construction, construction management services, ship or pay and/or similar
agreements ("Definitive Agreements"), as appropriate for the Project, setting
forth in detail the terms and conditions hereof, as well as any other terms and
conditions, reasonable and customary for similar agreements entered into for the
provision of similar Services and loan or other financing agreements if Xxxxxxxx
provides capital for financing, or arranges financing for any facilities or
capital improvements required for a Project. Subject to
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negotiation by Xxxxxxxx and the Operator, such Definitive Agreements may provide
for, among other things, the following:
(a) A provision that Xxxxxxxx is engaged in an independent
business and agrees to furnish the personnel necessary to perform the
Services as an independent contractor with, except as otherwise
provided for in a Definitive Agreement entered into pursuant to this
Agreement, full responsibility for the control and direction of its
employees and subcontractors. Xxxxxxxx, in its performance under any
Definitive Agreement will retain the right to exercise full control and
supervision over the accomplishment of the objectives set forth
therein. Xxxxxxxx shall provide and make available personnel to perform
the Services requested by the Operator. Xxxxxxxx shall be solely
responsible for assuring that personnel provided by Xxxxxxxx are
qualified and properly trained and provided with equipment necessary to
perform the tasks required by the Operator in providing the Services.
Xxxxxxxx will be obligated to furnish the Services in a timely manner.
Xxxxxxxx shall be required to work only such hours or days of the week
as may be provided for in the Definitive Agreement entered into by the
parties for the Services. Xxxxxxxx shall not be an agent, employee or
servant for and may not bind the Operator.
(b) A provision that the Definitive Agreement is not intended
to and shall not create a partnership, joint venture or agency of any
kind or type and that Xxxxxxxx is free to contract for similar Services
to be performed for itself and/or third parties during the term of the
Definitive Agreement.
(c) A provision that Xxxxxxxx will accept full and exclusive
liability for the payment of its employees' compensation and benefits
including any and all contributions or taxes for unemployment
insurance, old age retirement benefits, pensions or annuities now or
hereafter imposed by or under the laws of the United States or laws of
jurisdictions in which such Definitive Agreement is to be governed and
which are measured by the wages, salaries or other remuneration paid to
the persons employed for Services performed under the terms of the
Definitive Agreement.
(d) A provision that the Operator warrants that it will comply
with all applicable laws of the United States or laws of the
jurisdictions applicable to the Company in which the Definitive
Agreement is governed as an employer regarding compensation, hours of
work or other conditions of employment, including those applicable to
minimum wage and overtime wages as to employees it employs on any
Project.
(e) A provision that neither Xxxxxxxx nor its employees or its
subcontractors' employees shall be entitled to participate in or
receive benefits under any Operator programs maintained for the
Operator's employees, including, without limitation, life, medical and
disability benefits, pension, profit sharing, retirement or other
benefits plans or other fringe benefits.
(f) A provision that the Operator may, upon verbal notice to
Xxxxxxxx (with written notification to follow), request from time to
time that Xxxxxxxx remove any or all
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of its employees or its subcontractors employees from any Project. If
the Operator requests that Xxxxxxxx replace such individual(s),
Xxxxxxxx shall promptly replace the individual(s) and the Operator
shall have the right to approve on a reasonable basis any replacement.
(g) Provisions providing for mutually agreeable indemnity
provisions based on what are reasonably and customarily included in
similar agreements, such as:
(1) A provision that Xxxxxxxx shall defend, protect,
indemnify and hold harmless the Operator for all taxes,
contributions, penalties, fees and expenses (including,
without limitation, reasonable attorneys' fees, costs and
expenses) incurred by the Operator because of Xxxxxxxx'
failure to withhold federal, state, local and municipal income
taxes, FICA taxes, or any other such taxes or governmental
charges, federal, state, local and municipal which the
Operator may be required to pay as a result of Xxxxxxxx' or
its subcontractors' failure to withhold for its employees.
(2) Reciprocal provisions that each party shall
defend, protect, indemnify and hold harmless the other from
and against any and all claims, demands, causes of action,
liabilities, fines, penalties, injuries (including death) or
expenses (including, without limitation, reasonable attorneys'
fees, costs and expenses) of any kind or whatsoever nature
arising out of, resulting from, or relating to, all
obligations and liabilities with respect to its or its
subcontractors employees arising out of employment by it or
its subcontractors of such employees during the period of such
employment or which accrue under any employee plan or benefit
arrangement or otherwise, including without limitation, all
obligations for salaries, vacation, and holiday pay, severance
payments, bonuses and other forms of compensation, benefits or
other payments; and all costs and expenses with respect to any
termination by a party of its or its subcontractors employees
employed on the project.
(3) A provision that all obligations to defend,
protect, indemnify, and hold the Operator or Xxxxxxxx harmless
shall extend to the Operator's or Xxxxxxxx' officers,
directors, employees, agents, shareholders, affiliates, and
the officers, directors and agents of any corporate
shareholder of any affiliate of such party and shall continue
for so long as any of the named indemnitees may be subjected
to claims or suits calling for such obligations,
notwithstanding the completion, acceptance, or payment for
Services. Neither the Operator nor Xxxxxxxx shall be liable to
the other or its employees, agents, officers, directors or
shareholders in any event or for any reason for any special,
indirect, incidental, consequential or similar damages or loss
of profits arising out of or related to any Definitive
Agreement.
(h) A provision that Xxxxxxxx will carry or cause to be
carried and maintained in force throughout the term of any Definitive
Agreement insurance coverage (including self-insurance) customarily
provided for the scope of Services to be performed with
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insurance companies reasonably acceptable to the Operator. Non-renewal
or cancellation of any such policies, will be effective only after
written notice is received by the Operator from the insurance company
thirty (30) days in advance of any such non-renewal or cancellation.
Xxxxxxxx, upon written request, will provide the Operator with copies
of all insurance policies within ten (10) business days of receipt of
such request. Xxxxxxxx will deliver the Operator certificates of
insurance evidencing the existence of such insurance and all costs and
deductible amounts will be for the sole account of Xxxxxxxx. Xxxxxxxx
will not insure nor be responsible for any loss or damage, regardless
of cause, to property of any kind, including loss of use thereof,
owned, leased or borrowed by the Operator, or its employees, servants
or agents, except for losses or damages resulting from Xxxxxxxx' gross
negligence or reckless or willful misconduct.
(i) A mutually agreeable confidentiality provision to protect
all proprietary or confidential information acquired, exchanged or
developed by a party under any Definitive Agreement.
(j) Appropriate provisions providing neither party shall use
any funds received under any Definitive Agreement for illegal or
otherwise "improper" purposes, nor pay any commissions, fees or rebates
to any employee of the other, nor favor any such employee with gifts or
entertainment of significant cost or value and that both parties agree
to comply in all respects with the United States Foreign Corrupt
Practices Act of 1977 and any amendments thereto and/or similar
applicable legislation.
(k) A provision that the parties will comply with all federal,
state, local and municipal laws, regulations and ordinances applicable
to them.
(l) A force majeure provision as is customarily included in
agreements entered into for the provision of similar Services relating
to excuse of performance (other than the obligation to make payments
for Services rendered under a Definitive Agreement) resulting from
causes beyond the reasonable control of the parties.
(m) An arbitration provision providing, among other things,
that if the parties are unable to amicably resolve any dispute,
difference, controversy or claim arising under or out of, in relation
to or in any way connected with the Definitive Agreement, including
without limitation, any dispute as to the construction, existence,
validity, interpretation, enforceability, amendment or breach of the
Definitive Agreement, within thirty (30) days from submission to a
senior officer of each party, such matter shall be finally and
exclusively referred to and settled by arbitration in accordance with
the International Chamber of Commerce (the "ICC") Rules of Conciliation
and Arbitration pursuant to the following:
(1) The appointing authority shall be the American
Arbitration Association ("AAA") office in New York City, New
York; provided if the aforementioned AAA office refuses or
fails to act as the appointing authority within sixty (60)
days after being requested to do so, then the appointing
authority shall be the International Chamber of Commerce.
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(2) Three (3) arbitrators shall hear the arbitration.
Each party shall select an arbitrator of its choice and they
shall jointly select a third arbitrator to act as chairman.
All decisions and awards shall be (i) made by majority vote
and reduced to writing, (ii) final and binding without the
right to appeal, (iii) the sole and exclusive remedy regarding
any claims, counterclaims, issues or accountings presented to
the arbitrators, and (iv) made promptly in United States
dollars free of any deduction or offset. Any costs or fees
incident to enforcing the award shall, to the maximum extent
permitted by law, be charged against the person resisting such
enforcement.
(3) Judgment upon the award may be entered in any
court having jurisdiction over the person or the assets of the
person owing the judgment or application may be made to such
court for a judicial acceptance of the award and an order of
enforcement, as the case may be.
(4) Unless otherwise agreed in writing by the parties
to the arbitration proceedings:
(i) Site of arbitration shall be New York
City, New York.
(ii) The law of the place of arbitration
shall determine any procedural issues not determined
under the arbitral rules selected pursuant to the
Definitive Agreement.
(iii) Consequential, punitive or other
similar damages shall not be allowed.
(n) A provision that all payments required under any
Definitive Agreement will be made by check or electronic funds
transfer, in United States dollars.
(o) Such representations and warranties customarily included
in agreements entered into for the provision of similar Services.
5. MID-STREAM AND DOWNSTREAM FACILITIES:
(a) In connection with one or more Projects, the Company may
have the opportunity to invest in mid-and/or downstream facilities
associated with the applicable Project (the "Project Facilities"). In
the event the Board of Directors of the Company determines that the
Company prefers to not invest in the Project Facilities for a
particular Project, the Company shall, to the extent it may legally do
so, offer Xxxxxxxx, or an affiliate designated by Xxxxxxxx, the
opportunity to acquire the interest in the Project Facilities that the
Company was otherwise entitled to acquire.
(b) In instances where the Company has invested its own
capital in Project Facilities, and at a subsequent date, during the
term of this agreement decides to sell its interest in such Project
Facilities, it will notify Xxxxxxxx of its intent to sell such
interest. In the event Xxxxxxxx notifies the Company that it is
interested in purchasing the
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Company's interest in the applicable Project Facilities, the Company
will, acting in good faith, use its best efforts to negotiate a
mutually satisfactory agreement of sale, subject to the approval of
that agreement by the Company's Board of Directors and, if required,
the other owners of the other interests in the applicable Project
Facilities. If the Company and Xxxxxxxx are unable to negotiate a
mutually agreeable sale agreement and the Company subsequently desires
to sell such interests to a third party at a price less than that
offered to Xxxxxxxx or on other terms more advantageous to the third
party than offered to Xxxxxxxx, then prior to selling such interests to
the third party the Company shall offer to sell such interests to
Xxxxxxxx on the same terms (including price) as offered to such third
party and Xxxxxxxx shall have thirty (30) days thereafter to accept
such offer. If upon expiration of the thirty (30) day period Xxxxxxxx
has not accepted the Company's offer, then the Company will be free for
a period of ninety (90) days thereafter to enter into a contract to
sell such interests to such third party provided that such sale is made
on the same terms (including price) or on other terms (including price)
more advantageous to the Company than offered to Xxxxxxxx during the
thirty (30) day period.
6. CONFIDENTIALITY:
(a) Any written information, drawings or data disclosed by any
Party in accordance with this Agreement as well as all information
becoming known to any Party concerning any Project or any other
information affecting the business operations of a Party shall be
deemed to be confidential and proprietary information, and shall be
protected by such Party in the same manner and with the same degree of
care as it treats its own confidential or proprietary information. Each
Party agrees to and shall be fully responsible for all confidential or
proprietary information in its possession and if no agreement to
provide Services for a Project is agreed upon, shall promptly upon
completion of its review of the Project return all such information and
reproductions to the other Party.
(b) Such proprietary or confidential information shall not be
disclosed, except to the extent required by law, to any third person or
entity without the prior written consent of the disclosing Party.
Except in the case of a disclosure required by law, prior to disclosure
to any such third person or entity, such third person or entity must
have agreed in writing to treat the information as confidential in the
same manner as set forth in Section 6(a) herein.
(c) Confidential or proprietary information shall be treated
in the manner specified in Section 6(a) until such time as: (i) such
information is otherwise available in the public domain; (ii) such
information shall be established to have been known by the other prior
to receipt of such information or becomes known through a third party
not subject to the non-disclosure requirements of this Agreement; or
(iii) such information is required to be released by a valid law,
regulation or court order, and sufficient notice is given to the
disclosing Party of any such requirement or request to permit the
disclosing Party to seek an appropriate protective order or exemption
from such requirement or request.
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(d) Each Party shall ensure that the maintenance of
confidentiality and restriction on use set forth in this Agreement are
observed by its employees, agents, financial and other advisors and
subcontractors, if any.
7. NOTICES: All notices, requests, demands, instructions, waivers,
consents and other communications required or permitted under this Agreement
shall be in writing and shall be sent by personal delivery, courier, telex or
facsimile (which in the case of a facsimile, shall be followed by the personal
delivery or courier of the original thereof) to the following addressees:
Globex Energy, Inc. Xxxxxxxx International Company
[ADDRESS] 2200 One Xxxxxxxx Center
------------------------------ Xxxxx, Xxxxxxxx 00000
Attn: Attn: Xxxxx Xxxxxxx
Fax #: Fax #: 000-000-0000
Phone #: Phone #: 000-000-0000
Any such notice shall be deemed given when so delivered personally, or
if telegraphed, telexed or sent by facsimile transmission, when transmitted, or
if mailed by courier, two (2) days after the date of deposit to such courier
service.
The addresses and telex and facsimile numbers for notices given
pursuant to this Agreement may be changed by means of a written notice given to
the other Party at least fifteen (15) business days prior to the effective date
of such change.
8. COMPLIANCE WITH LAW: The Parties agree to comply with all federal,
state, local and municipal laws, regulations and ordinances applicable to them
hereunder.
9. WAIVER: For any waiver of any right, option or privilege to be
binding, the same must be in writing and signed by the Party against whom such
waiver is sought to be enforced. A waiver by a Party of any one or more defaults
by the another Party hereunder shall not operate as a waiver of any future
default or defaults, whether of a like or different character.
10. ASSIGNMENT: No Party to this Agreement shall assign any of its
rights or obligations under this Agreement without the prior written consent of
the other Parties, which consent shall not be unreasonably withheld.
11. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon each
of the Parties hereto as well as their successors and permitted assigns.
12. NON-EXCLUSIVE AGREEMENT: Nothing herein contained shall be
construed to prevent Xxxxxxxx from performing similar Services for itself or
third parties during the term of this Agreement or the term of any Definitive
Agreement. Except as may otherwise be provided for herein, if Xxxxxxxx is not
the Service provider for a Project hereunder, nothing herein contained shall be
construed to prevent the Company or any other entity that is the Operator from
engaging other contractors or other persons during the term of this Agreement to
perform such Services. Nothing herein contained shall be construed to prevent
the Company or any other
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entity that is the Operator to have one or more employees whose duties include
the evaluation of the Services.
13. RELATIONSHIP OF THE PARTIES: No Party shall by virtue of this
Agreement or any action with respect thereto be or be deemed to be an agent for,
employee, employer, or partner of, or joint venture with, any other Party in any
manner whatsoever except as otherwise specifically authorized in writing.
14. HEADINGS: All headings used herein are inserted for convenience
only and shall not affect any construction or interpretation of this Agreement.
15. FURTHER ASSURANCES: The Parties shall take any actions and execute
any other definitive agreements or documents that may be necessary or desirable
to the implementation and consummation of this Agreement or that may be
reasonably requested to effectuate the intent of this Agreement.
16. SEVERABILITY: If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, said term or provision shall be severed
and the remainder of this Agreement shall be valid and enforceable to the
fullest extent permitted by law; provided that the Parties shall negotiate in
good faith an amendment to such invalid or unenforceable provision that fulfills
the original intent of the Parties.
17. AMENDMENTS: Any amendment to this Agreement shall be valid only if
made in writing and duly executed by the Parties' authorized representatives.
18. COUNTERPARTS: This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original.
19. GOVERNING LAW: This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of New York, without regard its choice
of law rules.
20. DISPUTE RESOLUTION:
(a) In the event of a dispute arising under this Agreement,
the Parties agree to attempt to resolve the same and if unsuccessful to
submit the same to arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The
arbitration shall be held in New York City, New York. There shall be
one arbitrator unless a Party demands a panel of three (3) arbitrators.
The arbitrator(s) selected to act hereunder shall be qualified by
education and training to pass upon the particular question in dispute
and shall make a decision on the dispute within fifteen (15) days after
being appointed, subject to any reasonable delay due to unforeseen
circumstances. The arbitrator(s) shall determine the dispute and render
a final determination in accordance with the substantive law of the
State of New York, excluding the conflicts provisions of such law. The
arbitrator(s) shall set forth the reasons for the determination in
writing and judgment upon the award rendered by the arbitrator(s) may
be entered by any court having jurisdiction.
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(b) The compensation and expenses of the arbitrator(s) shall
be borne equally by the Parties. Each Party shall bear its own costs,
expenses and attorneys' fees; provided that if court proceedings to
stay litigation or compel arbitration are necessary, the Party who
unsuccessfully opposes such proceedings shall pay all reasonable
associated costs, expenses and attorneys' fees in connection with such
court proceedings.
(c) The compensation and expenses of the arbitrator(s) shall
be borne equally by the Parties. Each Party shall bear its own costs,
expenses and attorneys' fees; provided that if court proceedings to
stay litigation or compel arbitration are necessary, the Party who
unsuccessfully opposes such proceedings shall pay all reasonable
associated costs, expenses and attorneys' fees in connection with such
court proceedings.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXX INTERNATIONAL COMPANY
By:
-----------------------------------
Title:
-------------------------------
GLOBEX ENERGY, INC.
By:
-----------------------------------
Title:
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12
