RIG SALE, PURCHASE AND UTILIZATION AGREEMENT
1. THE PARTIES
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1.1 XXXXXX EXPLORATION PTY LTD., a company registered in Australia under No.
ACN 073039059 and a wholly owned subsidiary of Xxxxx Oil Company, Inc. with its
principal place of business at Suite 3 BCH House, 000 Xxxxxxxxx Xxxx, Xxxxxxxx
0000, Xxxxx Xxxxxxxxx ("Xxxxxx").
1.2 XXXXX OIL COMPANY, INC., a Utah corporation with its principal place of
business at P.O. Box 1566, Sarasota. Florida ("Xxxxx" and sometimes
collectively with Xxxxxx, the "Buyers").
TD INTERNATIONAL S.A., a company registered in Panama, with its principal
place of business at 00, Xxx Xxxxxxxx, Xxxxxxxxx 000000 ("TDI").
2. RECITALS
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2.1 TDI owns an oil and gas drilling rig and related equipment, and possesses
expertise in the operation of oil and gas drilling rigs.
2.2 Xxxxxx desires to acquire an interest in such rig and equipment and to
retain TDI to provide supervisory and other services with respect to the
operation of the such rig and equipment, and TDI desires to sell an interest in
such rig and equipment and to provide supervisory and other services with
respect to operation of such rig and equipment, in each case on the terms and
conditions set forth herein.
3. PURCHASE AND SALE
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3.1 Subject to the terms and conditions set forth in this Rig Sale, Purchase
and Utilization Agreement (this "Agreement"), effective as of the Closing, TDI
is selling, transferring, conveying, assigning and delivering to Xxxxxx, and
Xxxxxx is purchasing, an undivided 50% of TDI's right, title and interest in
and to a Xxxxxx Cabot 1000hp drilling rig and all equipment associated
therewith, all as more particularly described on Part I of Exhibit A hereto
(the "Rig"), together with a corresponding interest in and to all warranties
of manufacturers and suppliers of the Rig and all service contracts relating
to the Rig as more particularly described on Part II of Exhibit A (the
"Contracts").
3.2 The purchase price for the undivided 50% of TDI's interest in the Rig shall
be USD905,000 (the "Purchase Price"), payable to TDI on the Closing Date as
follows:
i. USD300,000 (the "Cash Payment") payable by Xxxxxx'x cashier's check or wire
transfer of immediately available funds to TDI's account no. 000-000000-000 at
the Hong Kong & Shanghai Bank in Xxxxxxxxx 000000.
ii. The issuance and sale to TDI of 806,667 of shares of Xxxxx'x common stock
(the "Shares").
4. THE CLOSING
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4.1 The closing of the transactions contemplated by this Agreement are taking
place at a closing (the "Closing") being held at the offices of TDI at 00, Xxx
Xxxxxxxx, Xxxxxxxxx 000000, or at such other place as TDI and Buyers may
agree, on the date of execution of this Agreement (the "Closing Date").
4.2 At the Closing, TDI and Buyers are delivering the following payments,
documents and instruments:
x. Xxxxxx shall deliver its cashier's check or wire transfer of immediately
available funds in the amount of the Cash Payment to the account of TDI.
ii. Xxxxx shall deliver to TDI a certificate or certificates representing the
Shares, duly issued in the name of TDI.
iii. TDI shall deliver to Xxxxxx a Xxxx of Sale in the form of Exhibit B
hereto, duly executed by TDI, and such other certificates of title and other
instruments as shall be necessary to vest an undivided 50% of TDI's right,
title and interest in and to the Rig in Xxxxxx.
iv. TDI shall deliver to Xxxxxx all warranty documents and service contracts as
described in Section 3.1.
v. TDI and Buyers shall deliver the documents and instruments, if any, as
reflected on and in accordance with Exhibit C hereto.
5. BUYERS' REPRESENTATIONS AND WARRANTIES TO TDI
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5.1 Xxxxxx is a company duly organized, validly existing and in good standing
under the laws of Australia, and Xxxxx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah, and
each Buyer has all requisite power and authority to conduct its business as it
is now being conducted. Each Buyer has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of each Buyer. This
Agreement has been duly and validly executed and delivered by each Buyer and
constitutes a legal, valid and binding obligation of each Buyer enforceable
against it in accordance with its terms, except insofar as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization and other
similar laws affecting creditor's rights generally or by principles governing
the availability of equitable remedies.
5.2 Except as disclosed on Schedule 5.2, no consent or approval of, or filing
with, any governmental authority or other person is required to be obtained or
made in connection with the execution, delivery or performance of this
Agreement by Buyers. Neither the execution or delivery of this Agreement by
Buyers, nor the performance by Buyers of their obligations under this
Agreement and consummation by Buyers of the transactions contemplated hereby,
does or will (with the passage of time or the giving of notice or both):
conflict with or result in a breach or violation of, or constitute a default
under, or result in (or create in any party the right to cause) the
acceleration of any performance or increase any payment or other obligation
required by, or the termination, suspension, modification or impairment of, or
result in the loss, revocation, impairment, suspension or forfeiture of any
rights or privileges under (a) any note, bond, mortgage, deed of trust,
license, lease, contract, commitment, agreement or arrangement ("Contract") to
which either Buyer or any affiliate of Buyers is a party or by which any of
their respective properties or assets are bound, (b) the Certificate of
Incorporation and Bylaws or comparable governing instruments of each Buyer and
its affiliates, or (c) any judgment, injunction, writ, proceeding, order or
decree ("Judgment") to or by which either Buyer or its assets and properties
are subject or bound, or any applicable legal requirements, other than any
conflicts, breaches, violations, defaults, rights, accelerations, increases,
terminations, suspensions, modifications, impairments, losses, revocations, or
forfeitures that would not have a material adverse effect on the business,
assets, properties, liabilities (including contingent liabilities), results of
operations or financial condition (such effect referred to herein as a
"Material Adverse Effect") of either Buyer.
5.3 The issuance of the Shares to TDI hereunder has been duly and validly
authorized by all necessary corporate action. No further approval or
authorization of the stockholders or directors of Xxxxx, of any governmental
body or of any other person is required for the issuance and sale of the
Shares in accordance with the terms of this Agreement, except for any federal
and state securities laws filings required to be filed within 45 days of the
sale of the Shares hereunder. Upon delivery to TDI of the share certificates
for the consideration provided herein, TDI will be vested with full right and
title to the Shares, and all incidents of ownership thereof, free and clear of
all liens, burdens and encumbrances.
5.4 Except as set forth in Schedule 5.4, to the knowledge of Xxxxx, there is no
suit, action or proceeding pending or threatened against or affecting either
Buyer which would have a Material Adverse Effect, nor is there any Judgment
outstanding against either Buyer which would have a Material Adverse Effect.
To the knowledge of Xxxxx, each of the Buyers has complied in all material
respects with all applicable legal requirements in respect of the conduct of
its business and the ownership, lease or possession of its assets and
properties, including without limitation all legal requirements relating to
pollution or protection of the environment, except for possible non-compliance
which would not have a Material Adverse Effect.
6. TDI's REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO BUYERS
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6.1 TDI is a corporation duly organized, validly existing and in good standing
under the laws of Panama. TDI has all requisite power and authority to
conduct its business as it is now being conducted. TDI has all requisite
power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of TDI. This
Agreement has been duly and validly executed and delivered by TDI and
constitutes a legal, valid and binding obligation of TDI enforceable against
it in accordance with its terms, except insofar as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization and other similar
laws affecting creditor's rights generally or by principles governing the
availability of equitable remedies.
6.2 Except as disclosed on Schedule 6.2, no consent or approval of, or filing
with, any governmental authority or other person is required to be obtained or
made in connection with the execution, delivery or performance of this
Agreement by TDI. Neither the execution or delivery of this Agreement by TDI,
nor performance by TDI of its obligations under this Agreement and
consummation by TDI of the transactions contemplated hereby, does or will
(with the passage of time or giving of notice or both): conflict with or
result in a breach or violation of, or constitute a default under, or result
in (or create in any party the right to cause) the acceleration of any
performance or increase any payment or other obligation required by, or the
termination, suspension, modification or impairment of, or result in the loss,
revocation, impairment, suspension or forfeiture of any rights or privileges
under (a) any Contract to which TDI or any affiliate of TDI is a party or by
which any of their respective properties or assets are bound, (b) the
Certificate of Incorporation and Bylaws or comparable governing instruments of
TDI and its affiliates, or (c) any Judgment to or by which TDI or its assets
and properties are subject or bound, or any applicable legal requirements,
other than any conflicts, breaches, violations, defaults, rights,
accelerations, increases, terminations, suspensions, modifications,
impairments, losses, revocations or forfeitures that would not have a Material
Adverse Effect on TDI.
6.3 Except as set forth on Schedule 6.3, to the knowledge of TDI, there is no
suit, action or proceeding pending or threatened against or affecting TDI
which would have a Material Adverse Effect, nor is there any Judgment
outstanding against TDI which would have a Material Adverse Effect. To the
knowledge of TDI, TDI has complied in all material respects with all
applicable legal requirements in respect of the conduct of its business and
the ownership, lease or possession of its assets and properties, including the
Rig, including without limitation all legal requirements relating to pollution
or protection of their environment, except for possible non-compliance which
would not have a Material Adverse Effect.
6.4 TDI has good and marketable title to the Rig and the various pieces of
equipment associated therewith, and hereby warrants and agrees to defend its
title to the Rig and such equipment against all claims. TDI has the right to
convey an interest in the Rig and equipment free and clear of all liens,
burdens, mortgages, security interests, or other claims or encumbrances,
except the lien for current taxes not yet due and payable.
6.5 The Rig and equipment associated therewith are in good mechanical condition
and working order (ordinary wear and tear and normal depreciation excepted),
and have been maintained, inspected, serviced, repaired and operated in
accordance with generally accepted oilfield and engineering standards, and in
accordance with their design specifications. None of the Rig or associated
equipment have been damaged. The Rig and associated equipment are, and have
been used and maintained, in full compliance with applicable legal
requirements and are suitable in all respects for their intended purposes.
TDI has delivered to Xxxxxx copies of all available maintenance, repair,
reconditioning and replacement records, operating logs and current or expired
drilling contracts relating to the Rig and associated equipment. TDI has not
asserted any claims against the manufacturer or supplier of the Rig and
associated equipment for breach of any warranty or representation relating to
the Rig or associated equipment.
6.6 TDI has paid all taxes, fees and assessments levied or charged with respect
to the Rig and associated equipment, has filed all reports and returns with all
taxing authorities having jurisdiction over the Rig and associated equipment,
and has provided Xxxxxx with access to all reports, returns and other
documents relating thereto.
6.7 TDI is an investor in securities of companies in Xxxxx'x industry and
acknowledges that it is able to bear the economic risk of its investment, and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Shares.
TDI represents that it has not been organized for the purpose of acquiring the
Shares.
6.8 TDI understands that the Shares are being acquired in a transaction exempt
from, or not subject to, the registration requirements of the U.S. Securities
Act of 1933, as amended (the "U.S. Securities Act"), on the basis that the
offer and sale of the Shares is occurring outside of the United States, in
accordance with the provisions of Regulation S promulgated pursuant to the
U.S. Securities Act.
6.9 TDI is not a U.S. Person, as defined in Regulation S, and no offer of the
Shares was made to TDI in the United States. At the time of the Closing, TDI
will continue to be located outside of the United States. The Acquisition of
the Shares has not been pre-arranged with a purchaser located in the United
States or who is a U.S. Person, and is not part of a plan to evade the
registration provisions of the U.S. Securities Act.
6.10 TDI understands and acknowledges that the Shares have not been and will
not be registered under the U.S. Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, a U.S. Person
except in compliance with any applicable registration or other requirements of
the U.S. Securities Act.
6.11 TDI agrees that all offers and sales of the Shares prior to the expiration
of the 40-day restricted period commencing from the Closing shall be made only
in accordance with Rule 903 of Regulation S or pursuant to an exemption from the
registration requirements of the U.S. Securities Act. TDI further agrees that
no offers and sales of the Shares prior to the expiration of the 40-day
restricted period will be made to a U.S. Person or for the account or benefit
of a U.S. person (as defined in Regulation S).
6.12 All offering materials and documents used in connection with offers and
sales of the Shares prior to the expiration of the 40-day restricted period
shall include statements to the effect that the Shares have not been registered
under the U.S. Securities Act and may not be offered or sold in the United
States or to or for the account of U.S. persons unless the securities are
registered under the U.S. Securities Act, or an exemption from the
registration requirements of the U.S. Securities Act is available.
6.13 TDI agrees that in the event of any sale of Shares prior to the expiration
of the 40-day restricted period, TDI will send a confirmation or notice to the
purchaser in substantially the following form:
"The Shares have not been registered under the U.S. Securities Act of 1933
(the "U.S. Securities Act") and may not be offered or sold within the United
States or to or for the account or benefit of U.S. Persons until 40 days after
the Closing Date, except in accordance with Regulation S under the U.S.
Securities Act or pursuant to an exemption from the registration requirements
of the U.S. Securities Act."
6.14 TDI agrees that neither TDI, nor any of its affiliates, nor any person
acting on behalf of TDI or any affiliate, will engage in any directed selling
efforts with respect to the Shares in the United States. Directed Selling
efforts are defined in Regulation S to mean any activity undertaken for the
purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for any of the Shares being offered
in reliance on Regulation S.
6.15 TDI acknowledges that the sale of the Shares is being made in reliance on
Rule 903 of Regulation S under the U.S. Securities Act, and certifies that (i)
TDI is not an affiliate of Xxxxx, as defined in Rule 405 under the U.S.
Securities Act, (ii) the acquisition of the Shares has not been pre-arranged
with a buyer in the United States, (iii) neither TDI nor any affiliate of TDI
nor any person acting on behalf of any such party has engaged in any directed
selling efforts in the United States in connection with the offer and sale of
the Shares, (iv) the sale is bona fide and not for the purpose of "washing off"
the resale restrictions imposed because the securities are "restricted
securities" (as such term is defined in Rule 144(a)(3) under the U.S.
Securities Act, and (v) the acquisition of Shares is not a transaction action,
or part of a series of transactions, which, although in technical compliance
with Regulation S, is part of a plan or scheme to evade the registration
provisions of the U.S. Securities Act. TDI further acknowledges and
understands that the during the 40-day restricted period referenced above, all
certificates representing capitalized shares may be legended to reflect the
restrictions on transfer applicable to such 40-day period.
6.16 TDI believes it has received all the information it considers necessary or
appropriate for deciding whether to acquire the Shares. TDI further
represents that it has had an opportunity to ask questions and receive answers
from Xxxxx regarding the terms and conditions of the Shares and the business,
properties, prospects and financial condition of Xxxxx.
6.17 TDI is an "accredited investor" within the meaning of Rule 501 promulgated
under the U.S. Securities Act.
7. CERTAIN COVENANTS AND AGREEMENTS
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7.1 TDI covenants and agrees with Buyers as follows:
i. On or before a date which is 45 business days after the Closing Date, TDI
shall put the Rig into the configuration, and cause it to meet the
specifications, outlined on Exhibit D hereto. Exhibit D also sets forth the
parties' estimate of the costs of reconfiguring the Rig. In the event the
actual costs incurred by TDI in reconfiguring the Rig in accordance with
Exhibit D are more or less than the estimated costs, TDI shall so notify
Buyers which notice shall be accompanied by reasonably detailed supporting
documentation. The parties acknowledge that such estimated reconfiguration
costs have been included in the Purchase Price and, in the event the actual
reconfiguration costs exceed the estimated reconfiguration costs, Buyers shall
reimburse TDI for the difference and, in the event the actual reconfiguration
costs are less than the estimated reconfiguration costs, TDI shall reimburse
Buyers for the difference. Such payments shall be made within 15 business
days of Buyers' receipt of the notice referred to herein.
ii. TDI shall be responsible for Rig maintenance and shall ensure that the Rig
is maintained in good condition and repair in accordance with its specifications
and good oilfield practices, and in a condition sufficient to meet the
requirements of any Drilling Contract (as defined below). All costs of such
maintenance and repair, and all costs associated with mobilizing the Rig from
the Bulalo 0, xxxxx xx Xxxxxx, Xxxxxxxxxxx to the first drilling location, and
daily operational costs associated with the Rig (except to the extent such
mobilization and operational costs are incurred in connection with use of the
Rig in connection with Xxxxxx'x exploration activities as provided in Section
7.4) shall be borne equally by TDI and Buyers and, within 15 business days of
receipt of notice accompanied by reasonably detailed supporting documentation,
Buyers shall reimburse TDI for 50% of the maintenance, repair, mobilization
and daily operational costs actually incurred by TDI; provided however that,
(a) TDI may so reimburse itself out of proceeds received in connection with
any Drilling Contract, (b) with the exception of reconfiguration costs
specified in Section 7.1.1, TDI shall not incur any liability or make any
single expenditure or series of related expenditures relating to the Rig under
this Agreement in excess of USD25,000 without first obtaining the written
approval of Xxxxxx; and (c) Buyers shall have no maintenance or repair cost
liability hereunder for defects or problems with the Rig arising prior to or
existing on the Closing Date.
iii. Buyers appoint and retain TDI to manage and operate the Rig, and TDI
accepts such appointment with full power and authority to manage and operate the
Rig in accordance with the terms of this Agreement. TDI shall manage and
operate the Rig in accordance with good oilfield practices, applicable legal
requirements, applicable drilling or other contracts, with the same standard
of care that it uses in the management and operation of similar oil and gas
drilling rigs owned by it or its affiliates, and taking into account Buyer's
50% ownership of the Rig. TDI shall perform or cause to be performed, and
shall take or cause to be taken, all actions necessary or appropriate to the
management and operation of the Rig in accordance with this Agreement,
including the actions described below:
(1) reconfiguring the Rig in accordance with Section 7.1.1;
(2) maintenance and repair of the Rig in accordance with Section 7.1.2;
(3) engage or terminate, and supervise and manage, such employees, contractors
and subcontractors as may be necessary to maintain adequate Rig crews and
operate the Rig;
(4) subject to Buyer's right of refusal set forth in Section 7.3, offer the Rig
for use by third parties on a competitive, right of first refusal basis, with
guaranteed availability, in correct configuration at current industry standard
daily drilling rates, and to negotiate and enter into drilling contracts for
utilization and operation of the Rig for the account of third parties on
standard industry terms and conditions satisfactory to Buyers (each, a
"Drilling Contract");
(5) coordinate the billing and collection from oil and gas operators who have
contracted to use the Rig and to enforce the rights of TDI and Buyers as
creditors under any Drilling Contract;
(6) mobilization of the Rig;
(7) prepare and file all reports and filings (including any tax returns or
filings) with respect to the operation of the Rig;
(8) collect all fees and charges owed under drilling contracts and, subject to
Section 7.1.2, pay over to Xxxxxx 50% of such receipts remaining after payment
of costs incurred under or in connection with any Drilling Contract; and
(9) perform all other actions TDI deems necessary or appropriate in connection
with the operation and maintenance of the Rig.
iv. Without the prior written approval of Buyers, TDI shall not take or cause
to be taken any of the following actions with respect to the Rig:
(1) commence, initiate, compromise or settle any suit, action, litigation,
arbitration or other proceeding relating the Rig or any Drilling Contract
involving an amount in controversy exceeding USD25,000;
(2) subject to Section 7.5, sell, assign, transfer or dispose of all or any
portion of its interest in the Rig; or
(3) mortgage, pledge, grant a security interest in or otherwise encumber the
Rig or any portion thereof.
7.2 Buyers covenant and agree with TDI as follows:
i. to cooperate with all reasonable requests of TDI in connection with its
management and operational activities under Section 7.1 hereof;
ii. to promptly pay its share of all costs as specifically provided elsewhere
herein, except to the extent TDI reimburses itself as provided herein for
Buyers' share of such costs out of proceeds received under any Drilling
Contract;
iii. subject to Section 7.5, sell, assign, transfer or otherwise dispose of all
or any portion its interest in the Rig; or
iv. mortgage, pledge, grant a security interest in or otherwise encumber the
Rig or any portion thereof.
7.3 Xxxxxx shall have a right of first refusal at all times to use the Rig in
connection with its exploration activities. Without limiting the generality
of the foregoing, promptly after such offer is received, TDI shall provide
written notice to Xxxxxx of any offer received from a third party to enter
into a Drilling Contract with respect to the Rig. Xxxxxx shall have the
absolute right in its sole discretion to direct TDI not to enter into such
Drilling Contract in the event the performance of such Drilling Contract would
impair or delay any exploration activities to be conducted by or on behalf of
Xxxxxx. TDI may not enter into any Drilling Contract without the prior
approval of Xxxxxx.
7.4 In the event Xxxxxx elects to use the Rig on any oil and gas prospect,
concession, lease, license or other opportunity in which Xxxxxx owns an
interest (whether or not Xxxxxx is operator thereof), TDI and Xxxxxx will
cooperate in good faith to develop the terms and conditions under which the
Rig will be so utilized, including the costs to be charged to joint account or
Xxxxxx, as the case may be, for use of the Rig, which costs shall include a
management fee payable to TDI in amounts to be agreed. Upon agreement of TDI
and Xxxxxx, such terms and conditions shall be memorialized in a management
agreement to be attached as an addendum to this Agreement. Xxxxxx shall be
responsible for obtaining all permits and licenses required in connection with
its exploration activities.
7.5 A party which desires to sell all or any portion of its interest in the Rig
to a third party purchaser shall obtain from such third party purchaser a bona
fide written offer to purchase such interest, stating the terms and conditions
upon which such purchase is to be made and the consideration offered therefor.
The selling party (the "Transferor") shall notify the other party in writing
of its intention to sell and shall enclose a copy of the written offer (the
"Transfer Notice"). The other party shall have the right to exercise a right
of first refusal to purchase the interest proposed to be sold by the
Transferor upon the same terms and conditions as stated in the aforesaid
written offer by giving written notification to the Transferor within 10
business notice of receiving the Transfer Notice. The failure of the other
party to notify the Transferor of its desire to exercise this right of first
refusal within said 10 business day period shall result in termination of the
right of first refusal and the Transferor shall be entitled to consummate the
sale of its interest to such third party purchaser. In the event the other
party timely notifies the Transferor of its intention to exercise the right of
first refusal and to purchase the interest, the other party shall have the
right to designate the time, date and place of closing, provided that the date
of closing shall be within 45 days after receipt of the Transfer Notice.
Notwithstanding the foregoing, no such sale shall be binding on the other
party unless the third party purchaser agrees in writing to be bound by the
terms of this Agreement.
7.6 In the event both Buyers and TDI elect to sell the Rig to a third party
purchaser, the consideration received upon consummation of such sale shall be
allocated equally between the parties.
8. INDEMNIFICATION; SURVIVAL; CERTAIN COVENANTS
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8.1 Subject to written notice of such claim for indemnification being given to
Buyers within the appropriate survival period referred to in Section 8.3,
Buyers covenant and agree to indemnify, defend and hold harmless TDI and its
officers, employees, agents, successors and assigns from and against all
losses, damages, liabilities, deficiencies, obligations, costs and expenses
(including reasonable legal fees and expenses) (herein, "Losses") to the
extent resulting from or arising out of any breach of a representation or
warranty of Buyers contained in this Agreement, or any nonperformance or
breach of any covenant or agreement of Buyers. Notwithstanding anything to
the contrary contained herein, no Buyer shall have any liability under this
Section 8.1 unless the aggregate of all Losses for which such Buyer would, but
for this proviso, be liable exceeds on a cumulative basis an amount equal to
USD 25,000 and then only to the extent of such excess; provided that such
Buyer shall not have any liability under this Section 8.1 to the extent the
liability or obligation arises as a result of any action taken or omitted to
be taken by TDI or any of its affiliates. TDI further acknowledges and agrees
that its sole and exclusive remedy with respect to any and all claims relating
to this Agreement and the transactions contemplated hereby (other than claims
of, or causes of action arising from, fraud) shall be pursuant to the
indemnification provisions set forth in this Section 8.1. In furtherance of
the foregoing, TDI hereby waives, from and after the Closing Date, to the
fullest extent permitted under any applicable law, any and all rights, claims
and causes of action (other than claims of, or causes of action arising from,
fraud) it or its affiliates may have against each Buyer and its affiliates
arising under or based on any legal requirement or otherwise (except pursuant
to the indemnification provisions of this Section 8.1).
8.2 Subject to written notice of such claim for indemnification being given to
TDI within the appropriate survival period referred to in Section 8.3, TDI
covenants and agree to indemnify, defend and hold harmless each Buyer, its
affiliates and each of their respective officers, directors, employees,
members, agents, successors and assigns from and against all Losses to the
extent resulting from or arising out of (a) any breach of a representation or
warranty of TDI contained in this Agreement, (b) the nonperformance or breach
of any covenant or agreement of TDI contained in this Agreement, or (c) all
obligations or liabilities of whatever kind and nature, primary and secondary
direct or indirect, absolute or contingent, known or unknown, whether or not
accrued, whether arising before on or after the Closing Date, arising out of
ownership, operations or use of the Rig and associated equipment.
8.3 The representations and warranties made by Buyers in Sections 5.1 and 5.2
of this Agreement and the representations and warranties made by TDI in Sections
6.1, 6.2 and 6.4 of this Agreement shall survive the Closing without
limitation. All other representations and warranties made by Buyers or TDI in
or pursuant to this Agreement shall survive for a period of 12 months from the
Closing Date. All covenants and agreements of Buyers and TDI contained in or
made pursuant to this Agreement shall survive the Closing indefinitely and
without limitation (except as may otherwise be expressly provided for by their
terms). Any representation, warranty, covenant or agreement which is the
subject of a claim or dispute asserted in writing prior to the expiration of
the applicable above-stated periods shall survive with respect to such claim
or dispute until the final resolution thereof.
8.4 All costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby will be paid by the party incurring such
costs and expenses.
8.5 From time to time after the Closing Date, without further consideration,
each of the parties will, at its own expense, execute and deliver or cause to be
executed and delivered, such other instruments of conveyance, assignment,
transfer and delivery as any other party may reasonably request to effect the
purposes of this Agreement.
8.6 Except as required by applicable legal requirements, neither the Buyers nor
TDI will issue any press release or otherwise make any public statements with
respect to this Agreement or the transactions contemplated hereby without the
prior approval of the other party, which approval shall not unreasonably be
withheld.
9. MISCELLANEOUS PROVISIONS
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9.1 This Agreement may be amended, modified or supplemented only by written
agreement of the parties hereto.
9.2 Except as otherwise provided in this Agreement, any failure of any party
hereto to comply with any obligation, covenant, agreement or condition herein
may be waived by whichever of the parties is entitled to the benefits thereof
only by a written instrument signed by such party granting the waiver but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of or estoppel
with respect to any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any of the parties, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 7.2. Failure by any
party to exercise any right, remedy or privilege shall be deemed a waiver of
such party's rights, remedies or privileges hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time.
9.3 All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally or by facsimile transmission (answer back
received) or mailed by registered or certified mail (return receipt requested)
postage prepaid to the parties at the following addresses:
If to TDI:
T.D. International, S.A.
O/O 00 Xxx Xxxxxxxx
Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx 000000
Fax: 00-0000000
Attn: Xxxxx Xxxxx
If to Xxxxxx:
Xxxxxx Exploration Pty Ltd.
Xxxxx 0 XXX Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxx 0000
Xxxxx Xxxxxxxxx
Fax: 000-000-00000
Attn: Xxxx Xxxxxx
If to Xxxxx:
Xxxxx Oil Company, Inc.
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Attn: Xxxx X Xxxxxx, President
Or to such other person or address as TDI or Buyer shall specify by notice in
writing to the other. All such notices, requests, demands, waivers and
communications shall be deemed to have been given and received on the date of
delivery (or the date delivery is refused by the addressee upon presentation)
or on the third business day after the mailing thereof except that any notice
of a change of address shall be effective only upon the actual receipt
thereof.
9.4 This Agreement, the other agreements contemplated hereby and the Schedules
and Exhibits hereto constitute the entire agreement among the parties and
supersede all prior agreements and understandings, oral and written among the
parties with respect to the subject matter hereof.
9.5 This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns but except as
otherwise provided herein, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior consent of the other party, which consent shall not be
unreasonably withheld. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.6 Any provision of this Agreement which after the Closing is held by a court
of competent jurisdiction to be invalid, illegal or unenforceable in any
jurisdiction shall as to that jurisdiction be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting in any way
the remaining provisions hereof in such jurisdiction or rendering that or any
other provisions of this Agreement invalid, illegal or unenforceable in any
other jurisdiction provided that if any provision hereof or the application
thereof shall be after the Closing so held to be invalid, void or
unenforceable by a court of competent jurisdiction, then such court may
substitute therefor a suitable and equitable provision in order to carry out,
so far as may be valid and enforceable, the intent and purpose of the invalid,
void or unenforceable provision and if such court shall fail or decline to do
so, the parties shall negotiate in good faith in an effort to agree upon such
a suitable and equitable provision.
This Agreement may be executed in counterparts, each of which shall be deemed
to be an original and all of which together shall be deemed to be one and the
same instrument.
This Agreement and the legal relations between the parties with respect hereto
shall be governed by and construed in accordance with the laws of the State of
Utah without regard to the conflict of laws, rules thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 13th day of November, 1997.
TDI:
TD INTERNATIONAL, S.A.
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
--------------
Title: Director
--------
BUYERS:
XXXXXX EXPLORATION PTY LTD.
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
--------------
Title: Managing Director
-----------------
XXXXX OIL COMPANY
By: /s/ Xxxx X. Xxxxxx, President
Xxxx X. Xxxxxx, President
EXHIBIT A
---------
THE RIG AND CONTRACTS
Part I
Xxxxxx Cabot 1000 HP Drilling Rig
Serial No: 31449
[BALANCE OF INFORMATION AND LIST OF ANCILLARY EQUIPMENT TO BE SUPPLIED]
Part II
Contracts: [BALANCE OF INFORMATION TO BE SUPPLIED]
EXHIBIT B
---------
FORM OF XXXX OF SALE
XXXX OF SALE
------------
THIS XXXX OF SALE made as of the 13th day of November, 1997 is
between TD INTERNATIONAL S.A., a Panama corporation with offices at 00 Xxxx
Xxxxxxxx, Xxxxxxxxx 000000 ("Seller") and XXXXXX EXPLORATION PTY. LTD., an
Australian company with offices at Suite 3 BCH House, 000 Xxxxxxxxx Xxxx,
Xxxxxxxx 0000, Xxxxx Xxxxxxxxx ("Buyer").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of
which are hereby acknowledged, Seller does hereby bargain, bargain, sell,
assign, transfer and set over unto Buyer an undivided 50% of Seller's right,
title and interest in and to the Xxxxxx Cabot 1000 HP Drilling Rig and
associated components and equipment, all of which are more particularly
described on Annex A hereto, and other inventory and spare, replacement or
component parts relating thereto whether or not described on said Annex A
(collectively, the "Rig"), and a corresponding interest in and to the warranty
and service agreements more particularly described on Annex B hereto (the
"Contracts").
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns
forever. Seller warrants title to the Rig and Contracts and further warrants
that the Rig and Contracts are free and clear of liens, charges, mortgages,
interests, rights, claims and encumbrances, and Seller agrees to defend Buyer
and its successors and assigns against all persons or entities claiming or to
claim any interest in the Rig or Contracts.
Seller also assigns and transfers unto Buyer an undivided 50% of
Seller's rights and privileges under and with respect to any and all
warranties relating to the Rig, to the extent the same are assignable and
transferable.
This Xxxx of Sale is made and given pursuant to that Rig Sale,
Purchase and Utilization Agreement by and among Seller, TDI International
S.A., Buyer and Xxxxx Oil Company, Inc. dated as of November 13, 1997 and the
terms and conditions thereof, including representations and warranties with
respect to the Rig and the Contract, are incorporated herein by this
reference.
IN WITNESS WHEREOF, Seller and Buyer have executed this Xxxx of Sale
effective as of November 13, 1997.
SELLER:
TD INTERNATIONAL S.A.
By:/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
BUYER:
XXXXXX EXPLORATION
PTY. LTD.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Director
EXHIBIT C
---------
ADDITIONAL CLOSING DELIVERIES
[TO BE SUPPLIED]
EXHIBIT D
---------
RIG CONFIGURATION AND SPECIFICATIONS
Schedule 5.2 [to be supplied]
Schedule 5.4 [to be supplied]
Schedule 6.2 [to be supplied]
Schedule 6.3 [to be supplied]
