e8vk
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 31, 2007
SUPERIOR ENERGY SERVICES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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0-20310
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75-2379388 |
(State or other jurisdiction)
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(Commission File Number)
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(IRS Employer Identification No.) |
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1105 Peters Road, Harvey, Louisiana
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70058 |
(Address of principal executive offices)
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(Zip Code) |
(504) 362-4321
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Item 1.01. Entry into a Material Definitive Agreement.
On December 31, 2007, Wild Well Control, Inc. (Wild Well), Texas corporation and subsidiary
of Superior Energy Services, Inc., a Delaware corporation (the Company), entered into a Wreck
Removal Contract (the Contract) with BP America Production Company, a subsidiary of BP plc,
Chevron U.S.A. Inc., a subsidiary of Chevron Corporation, and GOM Shelf LLC, a subsidiary of Apache
Corporation, pursuant to which Wild Well has agreed to decommission seven downed oil and gas
platforms and related well facilities located offshore Louisiana for a fixed sum of $750 million.
A copy of the Contract is included as Exhibit 10.1 to this Current Report on Form 8-K, incorporated
by reference herein, and the description of the Contract is qualified in its entirety by the full
text of such Exhibit.
The $750 million contract sum is payable in installments, including milestone payments payable
upon the completion of specified portions of the work.
With certain exceptions specified in the Contract, Wild Well has agreed to assume and
indemnify the other parties to the Contract for all liabilities and obligations associated with the
downed platforms and related well facilities and equipment.
The Contract contains representations and warranties given by Wild Well in favor of the other
parties. The Contract also contains certain affirmative and negative covenants primarily related
to Wild Wells performance of the work under the Contract.
The Contract provides for certain performance-related and other significant events of default.
Upon the occurrence of any event of default that remains uncured 60 days after notice thereof, or
under certain circumstances if Wild Well fails to initiate action and proceed to diligently remedy
such default within such 60-day period, the other parties to the Contract may, among other
remedies, suspend payments and the right of Wild Well to continue performance under the Contract,
under certain circumstances require Wild Well to refund a portion of certain payments previously
made under the Contract, with interest, or complete the work at Wild Wells expense to the extent
that the cost to complete the work (or any specified milestone payment) exceeds the amount that
would have otherwise been payable to Wild Well under the Contract.
The Contract provides that each other party to the Contract may require Wild Well to accept
title to that partys ownership interest in the subject platforms and related facilities prior to
the completion of the work pursuant to an agreed form of purchase and sale agreement and related
documentation. Wild Wells and the other parties rights and obligations pursuant to the purchase
and sale agreements would be identical to the respective rights and obligations of the parties
under the Contract.
In connection with the execution of the Contract, the Company has agreed to guarantee all of
Wild Wells obligations arising under the Contract.
Item 8.01. Other Events.
On January 2, 2008, the Company issued the press release attached hereto as Exhibit 99.1,
announcing the execution of the Contract and related agreements. The press release is included as
Exhibit 99.1 to this Current Report on Form 8-K, incorporated by reference herein, and the
description of the press release is qualified in its entirety by reference to such Exhibit.
Item 9.01. Financial Statements and Exhibits.
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(d) |
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Exhibits. |
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10.1 |
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Wreck Removal Contract, dated December 31, 2007, by and among Wild Well
Control, Inc., BP America Production Company, Chevron U.S.A. Inc. and GOM Shelf LLC
(The Company agrees to furnish supplementally a copy of any omitted exhibits to the SEC
upon request). |
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99.1 |
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Press release issued by Superior Energy Services, Inc., dated January 2, 2008. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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SUPERIOR ENERGY SERVICES, INC.
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By: |
/s/ Robert S. Taylor
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Robert S. Taylor |
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Chief Financial Officer |
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Dated: January 3, 2008
Exhibit Index
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(d) |
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Exhibits. |
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10.1 |
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Wreck Removal Contract, dated December 31, 2007, by and among Wild Well
Control, Inc., BP America Production Company, Chevron U.S.A. Inc. and GOM Shelf LLC
(The Company agrees to furnish supplementally a copy of any omitted exhibits to the SEC
upon request). |
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99.1 |
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Press release issued by Superior Energy Services, Inc., dated January 2, 2008. |
exv10w1
Exhibit 10.1
Wreck Removal Contract
between
BP America Production Company,
Chevron U.S.A. Inc.
and
GOM Shelf LLC
as the Companies
and
Wild Well Control, Inc.
as Contractor
NOTICE: THIS CONTRACT CONTAINS INDEMNIFICATION, RELEASE, ASSUMPTION OF LIABILITY, AND HOLD
HARMLESS PROVISIONS, SOME OF WHICH ARE IN ARTICLE 13 AND THE
REMAINDER ARE FOUND THROUGHOUT THE CONTRACT.
TABLE OF CONTENTS
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Page |
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Article 1. CONTRACT DOCUMENTS AND INTERPRETATION |
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7 |
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Section 1.01 |
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Contract Documents |
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7 |
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Section 1.02 |
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Incorporation |
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7 |
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Section 1.03 |
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Section References |
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8 |
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Section 1.04 |
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References |
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8 |
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Section 1.05 |
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Headings |
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8 |
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Section 1.06 |
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Interpretation |
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8 |
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Article 2. DEFINITIONS |
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8 |
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Section 2.01 |
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Definitions |
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8 |
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Article 3. SCOPE OF WORK; COMMENCEMENT AND COMPLETION OF WORK; AS IS WHERE IS |
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14 |
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Section 3.01 |
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Scope of Work |
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14 |
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Section 3.02 |
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Commencement of Work; Completion of Work |
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14 |
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Section 3.03 |
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Title |
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14 |
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Section 3.04 |
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Reefed Items |
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15 |
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Section 3.05 |
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No Exclusions from Work |
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15 |
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Section 3.06 |
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Additional Wells |
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15 |
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Section 3.07 |
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Conditions; As Is, Where Is |
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15 |
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Article 4. CONDITIONS PRECEDENT |
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17 |
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Section 4.01 |
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MMS Qualification; Bonds |
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17 |
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Section 4.02 |
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Permits |
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17 |
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Section 4.03 |
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Designation of Operator; MMS Approvals |
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17 |
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Section 4.04 |
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Insurance |
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17 |
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Section 4.05 |
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Escrow Agreement |
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18 |
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Article 5. EXISTING ASSETS AND EXISTING PERMITS |
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18 |
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Section 5.01 |
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Transfers |
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18 |
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Section 5.02 |
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No Warranty of Title |
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18 |
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Section 5.03 |
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Delivery |
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18 |
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Article 6. REPRESENTATIONS AND WARRANTIES |
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18 |
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Section 6.01 |
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Organization and Good Standing |
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18 |
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Section 6.02 |
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Corporate Authority; Authorization of Agreement |
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18 |
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Section 6.03 |
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No Violations |
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19 |
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Section 6.04 |
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Litigation |
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19 |
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Section 6.05 |
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Bankruptcy |
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19 |
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Section 6.06 |
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Qualification |
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19 |
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Section 6.07 |
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Laws |
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19 |
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Section 6.08 |
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Gifts, Etc. |
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19 |
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Section 6.09 |
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Indemnity |
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20 |
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Article 7. REPRESENTATIONS OF EACH COMPANY |
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20 |
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Section 7.01 |
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Organization and Good Standing |
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20 |
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Section 7.02 |
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Corporate Authority; Authorization of Agreement |
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20 |
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Section 7.03 |
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No Violations |
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20 |
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Section 7.04 |
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Litigation |
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20 |
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Section 7.05 |
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Bankruptcy |
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20 |
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Article 8. CONTRACTORS COVENANTS |
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21 |
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Section 8.01 |
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Cooperation |
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21 |
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Section 8.02 |
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Permit Requests and Modifications |
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21 |
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Section 8.03 |
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Subsequent MMS Filings |
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21 |
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Section 8.04 |
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Performance |
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21 |
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Section 8.05 |
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Anti-Bribery, Etc. |
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22 |
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Section 8.06 |
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Records |
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Section 8.07 |
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Payment of Bills |
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23 |
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Section 8.08 |
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Taxes, Liens, and Charges |
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23 |
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Section 8.09 |
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Qualification |
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23 |
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Section 8.10 |
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IP Rights |
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23 |
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Section 8.11 |
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Monitoring; Future Response |
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23 |
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Section 8.12 |
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Navigation |
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24 |
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Section 8.13 |
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Conditions Precedent |
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24 |
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Section 8.14 |
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Release |
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24 |
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Section 8.15 |
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Re-Designation of Operator |
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24 |
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Section 8.16 |
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Response to Requests for Information |
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24 |
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Section 8.17 |
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Escrow Agreement |
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24 |
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Section 8.18 |
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Indemnity |
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24 |
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Table of Contents
Page ii
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Page |
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Article 9. COVENANTS OF EACH COMPANY |
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25 |
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Section 9.01 |
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MMS Forms |
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25 |
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Section 9.02 |
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Cooperation |
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25 |
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Section 9.03 |
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Additional Documentation |
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25 |
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Section 9.04 |
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Release |
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26 |
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Section 9.05 |
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Escrow Agreement |
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26 |
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Section 9.06 |
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Other Equipment |
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26 |
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Section 9.07 |
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Certifying Representative |
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26 |
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Article 10. CONTRACT SUM; MILESTONES; PAYMENT PROCEDURES |
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26 |
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Section 10.01 |
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Total Compensation |
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26 |
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Section 10.02 |
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Initial Payment |
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26 |
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Section 10.03 |
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Mobilization Payment |
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26 |
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Section 10.04 |
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Milestone Payments; Procedures |
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27 |
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Section 10.05 |
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Final Payment; Procedure |
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27 |
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Section 10.06 |
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Late Payment |
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28 |
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Section 10.07 |
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Escrow Account |
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28 |
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Section 10.08 |
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Method of Payments |
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28 |
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Section 10.09 |
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No Release |
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29 |
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Article 11. CONFIDENTIALITY |
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29 |
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Section 11.01 |
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Confidential Information |
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29 |
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Section 11.02 |
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Digital Information |
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29 |
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Section 11.03 |
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Third Party Disclosure |
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30 |
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Section 11.04 |
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Public Announcements; Public Disclosures |
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30 |
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Article 12. INDEPENDENT CONTRACTOR AND LOUISIANA STATUTORY EMPLOYEE |
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30 |
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Section 12.01 |
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Independent Contractor |
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30 |
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Section 12.02 |
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No Direction or Control |
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30 |
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Section 12.03 |
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Statutory Employer |
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31 |
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Article 13. INDEMNITY |
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31 |
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Section 13.01 |
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Special Definitions: |
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31 |
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Section 13.02 |
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Contractors General Indemnity Obligations |
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33 |
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Section 13.03 |
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Pollution |
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33 |
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Section 13.04 |
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Fines and Penalties |
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33 |
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Table of Contents
Page iii
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Page |
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Section 13.05 |
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Limitation on Damages |
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34 |
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Section 13.06 |
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Notice and Defense |
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34 |
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Section 13.07 |
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Insurance |
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34 |
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Article 14. INSURANCE |
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35 |
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Section 14.01 |
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Commercial General Liability Insurance |
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35 |
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Section 14.02 |
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Business Auto Liability Insurance |
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35 |
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Section 14.03 |
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Workers Compensation and Employers Liability Insurance |
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36 |
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Section 14.04 |
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Protection and Indemnity and Hull and Machinery Insurance |
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36 |
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Section 14.05 |
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Aviation Liability Insurance |
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36 |
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Section 14.06 |
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Pollution Liability Insurance |
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37 |
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Section 14.07 |
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Operators Extra Expense/Well Control Coverage |
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37 |
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Section 14.08 |
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Excess Insurance |
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37 |
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Section 14.09 |
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Evidence of Insurance |
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37 |
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Section 14.10 |
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General Insurance Provisions |
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37 |
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Section 14.11 |
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Self-Insurance |
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38 |
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Section 14.12 |
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Insolvency |
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39 |
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Section 14.13 |
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Subcontractors Insurance |
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39 |
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Article 15. FORCE MAJEURE |
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39 |
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Article 16. ASSIGNMENT; DELEGATION; SUBCONTRACTING |
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39 |
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Section 16.01 |
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Assignment; Delegation; Subcontracting |
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39 |
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Section 16.02 |
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Assignment by Companies |
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40 |
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Article 17. DEFAULT; INSOLVENCY; REMEDIES |
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40 |
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Section 17.01 |
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Default |
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40 |
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Section 17.02 |
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Notice; Opportunity to Cure |
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41 |
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Section 17.03 |
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Remedies Upon Default |
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41 |
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Article 18. PUT OPTION |
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42 |
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Section 18.01 |
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Grant of Put Option |
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42 |
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Section 18.02 |
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Method of Exercise |
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43 |
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Section 18.03 |
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Price; Consideration |
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43 |
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Section 18.04 |
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Termination of Obligations |
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43 |
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Table of Contents
Page iv
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Page |
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Article 19. PARENT GUARANTY |
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43 |
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Section 19.01 |
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Guaranty |
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43 |
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Article 20. SECURITY AGREEMENT |
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43 |
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Section 20.01 |
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Security Agreement |
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43 |
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Article 21. APPLICABLE LAW AND RESOLUTION OF DISPUTES |
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44 |
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Section 21.01 |
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Selection of Applicable Law |
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44 |
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Section 21.02 |
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Venue |
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44 |
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Section 21.03 |
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Continued Performance |
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44 |
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Article 22. SURVIVAL; SEVERABILITY; WAIVER |
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45 |
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Section 22.01 |
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Survival |
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45 |
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Section 22.02 |
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Severability |
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45 |
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Section 22.03 |
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Waiver |
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45 |
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Article 23. NOTICES |
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45 |
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Section 23.01 |
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Notice Addresses |
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45 |
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Section 23.02 |
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Effectiveness of Notices |
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46 |
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Section 23.03 |
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Notice to a Company |
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46 |
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Article 24. MISCELLANEOUS |
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46 |
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Section 24.01 |
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Third Party Beneficiaries |
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46 |
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Section 24.02 |
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Several Liability of the Companies; No Joint Venture or Partnership |
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47 |
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Section 24.03 |
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Subrogation |
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47 |
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Section 24.04 |
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Contractor Not a Successor or Assign |
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47 |
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Section 24.05 |
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Entire Contract; Amendment |
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47 |
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Section 24.06 |
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Governmental Agency Approval |
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47 |
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Section 24.07 |
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Further Assurances |
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48 |
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Section 24.08 |
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Counterparts |
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48 |
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Exhibit A
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Form of Bill of Sale |
Exhibit B
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Designated Aliquots; Platforms |
Exhibit C
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Milestone Events |
Exhibit D
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Other Equipment |
Exhibit E
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Form of PSA |
Exhibit F
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Wells |
Exhibit G
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Scope of Work |
Exhibit H
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Existing Assets |
Exhibit I
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Existing Permits |
Exhibit J
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Milestone Payments |
Exhibit K
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Form of Guaranty |
Exhibit L
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Form of Security Agreement |
Table of Contents
Page vi
WRECK REMOVAL CONTRACT
by and among
BP AMERICA PRODUCTION COMPANY,
CHEVRON U.S.A. INC., and
GOM SHELF LLC
as the Companies, and each, as a Company
and
WILD WELL CONTROL, INC.
as Contractor
THIS WRECK REMOVAL CONTRACT is made as of December 31, 2007 (the Effective Date) by
and among BP AMERICA PRODUCTION COMPANY, a Delaware corporation (BP), CHEVRON U.S.A.
Inc., a Pennsylvania corporation (Chevron), and GOM SHELF LLC, a Delaware limited
liability company (GOM) (each hereinafter referred to individually as a Company and
collectively as the Companies), and WILD WELL CONTROL, INC., a Texas corporation
(hereinafter referred to as Contractor). Each Company and Contractor may hereinafter be
referred to collectively as Parties or individually as a Party. In
consideration of the covenants and provisions hereinafter provided, the Parties agree as follows:
Article 1.
CONTRACT DOCUMENTS AND INTERPRETATION
Section 1.01 Contract Documents.
This Wreck Removal Contract together with the following Exhibits constitute this Contract:
Article 1 to Article 24, inclusive
Exhibit A Form of Bill of Sale
Exhibit B Designated Aliquots; Platforms
Exhibit C Milestone Events
Exhibit D Other Equipment
Exhibit E Form of PSA
Exhibit F Wells
Exhibit G Scope of Work
Exhibit H Existing Assets
Exhibit I Existing Permits
Exhibit J Milestone Payments
Exhibit K Form of Guaranty
Exhibit L Form of Security Agreement
Section 1.02 Incorporation.
Exhibits A through L, inclusive are incorporated herein by reference, and Contractor
agrees to comply with all the provisions thereof.
Section 1.03 Section References.
Each Article in this Contract contains provisions that are sometimes referred to as a
Section(s) of an Article(s). Unless the context otherwise requires, a general reference to any
Article includes the entire Article and a reference to any specific Section(s) of an Article refers
to the identified Section(s).
Section 1.04 References.
Reference to any statute, statutory provision, statutory instrument, or rule, regulation, or
any Governmental Agency form includes a reference to that statute, statutory provision, statutory
instrument, or rule, regulation or form as from time to time amended, extended, or re-enacted or
any successor or replacement thereof. Reference to the singular includes a reference to the plural
and vice versa and reference to one gender includes a reference to the other gender.
Section 1.05 Headings.
Headings are used for convenience only and will not affect the construction or validity of
this Contract.
Section 1.06 Interpretation.
The Parties agree that each Party has had the opportunity to review the terms and provisions
of this Contract with counsel of their choosing and to request any desired changes or
clarifications and that the terms of this Contract will not be interpreted against any Party on the
ground that such Party drafted or revised a particular provision. Instead, in the event of any
ambiguity, this Contract will be interpreted in accordance with the intent of the Parties as
evidenced by the Contract taken as a whole.
Article 2.
DEFINITIONS
Section 2.01 Definitions.
In this Contract, the words and phrases shall have the meanings ascribed below or as defined
separately in the individual Articles of this Contract.
2.01.01 Affiliate or Affiliates of a company shall mean a current or
future Person directly or indirectly controlling, controlled by, or under common control with such
company. Control for this purpose shall, in the case of a corporation with outstanding voting
stock, require the direct or indirect ownership of or power to vote with respect to outstanding
shares of a corporations capital stock constituting fifty percent (50%) or more of the votes of
any class of such corporations outstanding voting stock, and with respect to any Person other than
a corporation, the possession, directly or indirectly, of the power to direct or cause the
direction of such persons management or policies.
2.01.02 Army Corps of Engineers shall mean the United States Army Corps of
Engineers.
2.01.03 Bill of Sale shall mean (a) an Assignment and Bill of Sale Tendered by a
Company under a PSA in the form attached to the PSA (with appropriate exhibits attached, and with
bracketed materials appropriately addressed), and (b) in the case of Existing Assets,
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Existing Permits, or Transferred Items, an Assignment and Bill of Sale in the form attached
hereto as Exhibit A (with appropriate exhibits attached, and with bracketed materials
appropriately addressed).
2.01.04 BP shall mean BP America Production Company and its successors and assigns.
2.01.05 Business Day or Business Days shall mean Days other than
Saturdays, Sundays, legal holidays in the States of Texas or Louisiana, or Days on which banks in
Covington, Louisiana or Houston, Texas are authorized or required to be closed.
2.01.06 Certifying Representative shall mean a single representative, as designated
from time to time by the Companies to represent all of the Companies, who shall be authorized to
act on behalf of the Companies as set forth in this Contract and each PSA.
2.01.07 Chevron shall mean Chevron U.S.A. Inc. and its successors and assigns.
2.01.08 Claim/Loss and Claims/Losses shall mean all claims and losses of
all kinds and descriptions including liabilities, liens, privileges, and other encumbrances, causes
of action (including actions in rem or in personam, at law or in equity), obligations, judgments,
interest, costs, expenses, and awards whether created by law, contract, tort, arbitration,
voluntary settlement (to the extent authorized by the Indemnitor), or otherwise, and including,
except as otherwise expressly provided, claims based on contractual indemnity, claims for punitive,
exemplary, consequential or indirect damages, and claims for bodily injury, personal injury,
illness, death, and property damage including claims and/or losses for the above regardless of how
such claims and/or losses may be characterized.
2.01.09 Coast Guard shall mean the United States Coast Guard.
2.01.10 Commencement Date shall have the meaning set forth in Article 4.
2.01.11 Company shall refer individually to each and any of BP, Chevron, and GOM and
Companies shall refer to BP, Chevron, and GOM, collectively.
2.01.12 Companies Group shall mean the following Persons individually and
collectively: each Company and its respective Affiliates, their respective co-venturers, co-owners,
co-lessees, co-working interest owners, joint venturers, partners, and other contractors and
subcontractors of any tier and all of their Affiliates, and the officers, directors, shareholders,
employees, agents, and representatives of all those entities. Companies Group does not include
any Person of Contractor Group.
2.01.13 Company Operations shall mean exploration, development, production,
decommissioning, remediation or other operations of any Company on or in connection with Company
Property.
2.01.14 Company Property shall include all leases, rights of way, hydrocarbons,
production, machinery, structures, equipment, risers, pipelines, wells, manifolds, wellheads, and
other tangible property owned by any Person(s) of Companies Group that is located at, on, or
adjacent to a Work Site, other than the Facilities. The term Company Property shall not be
deemed or interpreted to include any of Contractors Property.
2.01.15 Completion of Work shall have the meaning set out in Section 3.02.
2.01.16 Confidential Information shall have the meaning set out in Section 11.01.
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2.01.17 Connected With shall have the meaning set out in Section 13.01.04.
2.01.18 Contract shall mean this Wreck Removal Contract, as such may be amended or
modified.
2.01.19 Contract Sum shall have the meaning set out in Section 10.01.
2.01.20 Contractor shall mean Wild Well Control, Inc. and its successors and
assigns.
2.01.21 Contractor Group shall mean the following Persons individually and
collectively: Contractor and its Affiliates, its Subcontractors and their Affiliates, and the
officers, directors, shareholders, employees, agents, and representatives of all of those entities.
2.01.22 Contractors Property shall mean the Existing Assets and all materials,
supplies, equipment, or other property, real or personal, that is owned, leased, rented, chartered,
or operated by Person(s) of Contractor Group in connection with the performance of this Contract.
2.01.23 Day or Days shall mean calendar day or days.
2.01.24 Defend or Defense shall have the meaning set forth in Section
13.01.05.
2.01.25 Designated Aliquots shall mean those certain 1/4 1/4 1/4 aliquots for the
Platforms listed on Exhibit B, limited as to depth, if applicable.
2.01.26 Effective Date shall refer to the date set forth in the preamble of this
Contract.
2.01.27 Escrow Account shall mean an account to be maintained pursuant to the Escrow
Agreement.
2.01.28 Escrow Agent shall mean JPMorgan Chase Bank, N.A. and its successors as
escrow agent under the Escrow Agreement.
2.01.29 Escrow Agreement shall mean an escrow agreement among Escrow Agent,
Companies, and Contractor, satisfactory in form and substance to Companies and Contractor.
2.01.30 Event of Default shall mean any of the events set forth in Article 17.
2.01.31 Excluded Claims/Losses shall have the meaning set forth in Section 13.01.06.
2.01.32 Existing Assets shall have the meaning set forth in Section 5.01.01.
2.01.33 Existing Permits shall have the meaning set forth in Section 5.01.02.
2.01.34 Facilities shall mean the Platforms and Wells, and all rigs, risers,
platforms, pipelines, equipment, materials, scrap metal, caissons, debris, entrained fluids and
other entrained substances including hydrocarbons, salt water, and drilling mud, and other personal
property and fixtures, in each case, that may at any time prior to Site Clearance Verification be
located in or on the seabed anywhere within the area mandated to be cleared, and required to be
removed, by the MMS in connection with Site Clearance Verification for each Platform and each Well.
2.01.35 Final Payment shall mean the payments to be made by the Companies under
Section 10.05.
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2.01.36 Force Majeure shall mean any event beyond the reasonable control of the
Party claiming to be affected thereby including: acts of God; extraordinary weather related events
or disturbances, including major storms, hurricanes, tidal waves, and underwater mudslides; war;
fire; flood; strikes or other labor disturbances at a national or regional level; acts of the
public enemy; terrorism; insurrections; riots; or rules, regulations, or orders of any court or
Governmental Agency that have been resisted in good faith by legal means and that make continuance
of the Work substantially impractical. Notwithstanding the foregoing, Force Majeure shall not
include events contributed to by the gross negligence or willful misconduct on the part of the
Party claiming Force Majeure nor shall Force Majeure include effects that could have been avoided
or mitigated by the exercise of reasonable care on the part of the Party claiming Force Majeure.
Inability of any Party to secure funds shall not be regarded as Force Majeure.
2.01.37 GOM shall mean GOM Shelf LLC and its successors and assigns.
2.01.38 Governmental Agency shall mean any federal, state, or local government or
agency thereof with any jurisdiction or responsibility over the Parties, the Work, a Work Site, the
Facilities, or releases of any substance from the Facilities, including the MMS, the Coast Guard,
the Army Corps of Engineers, and the Louisiana Department of Wildlife and Fisheries.
2.01.39 Guarantor shall mean Superior Energy Services, Inc.
2.01.40 Guaranty shall mean a single, continuing guaranty executed by Guarantor in
favor of Companies under this Contract and each PSA, complying with the requirements of Article 19.
2.01.41 Including or Included shall mean, whether or not capitalized,
including, but not limited to a specific matter.
2.01.42 Indemnify or Indemnification shall have the meaning set forth in
Section 13.01.01.
2.01.43 Indemnitee shall have the meaning set forth in Section 13.01.03.
2.01.44 Indemnitor shall have the meaning set forth in Section 13.01.02.
2.01.45 Initial Payment shall mean the payments to be made by the Companies under
Section 10.02.
2.01.46 IP Rights shall have the meaning set forth in Section 8.10.
2.01.47 JOAs shall mean the following Joint Operating Agreements by and between the
Companies and their predecessors in interest: CATCO Operating Agreement dated as of January 1,
1989, as amended; West Delta-Grand Isle Unit Operating Agreement dated January 1, 1989, as amended;
and Grand Isle Catco Unit Operating Agreement dated January 1, 1989, as amended.
2.01.48 Laws shall mean laws, rules, regulations, and decrees of federal, state, and
local governments or agencies thereof.
2.01.49 LIBOR Rate shall mean the one month London InterBank Offered Rate as set and
published by the British Bankers Association (BBA) and in effect on the first day of
each calendar month, as obtained by the Party entitled to receive interest from an intermediary
source such as Bloomberg, L.P., which rate is based by the BBA on an average of interbank
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offered rates for U.S. Dollar deposits in the London market based on quotes from designated
banks in the London market.
2.01.50 Milestone Event shall mean the completion of a specified, particular aspect
of the Work, as identified on Exhibit C.
2.01.51 Milestone Payment shall mean the payments to be made by the Companies under
Section 10.04 for completion of each Milestone Event.
2.01.52 MMS shall mean the United States Department of the Interior, Minerals
Management Service.
2.01.53 Mobilization Payment shall mean the payments to be made by the Companies
under Section 10.03.
2.01.54 Negligence/Fault shall have the meaning set out in Section 13.01.07.
2.01.55 NORM shall have the meaning set out in Section 3.05.01.
2.01.56 Oil Pollution Act shall mean the Oil Pollution Act of 1990, as amended.
2.01.57 Other Equipment shall mean the equipment described on Exhibit D hereto.
2.01.58 Outer Continental Shelf shall mean the submerged lands, subsoil, and seabed,
lying between the seaward extent of the jurisdiction of a state and the seaward extent of Federal
jurisdiction.
2.01.59 Party or Parties shall have the meaning set out in the preamble to
this Contract.
2.01.60 Person or Persons shall include any natural person(s) as well as
any legal entity including any Party or any Person of Companies Group or Contractor Group.
2.01.61 Platforms shall mean the seven (7) platforms located in the Grand Isle and
West Delta Areas, Offshore Louisiana, more fully described on Exhibit B, including the jackets,
decks, risers, conductors, and other components and fixtures and related personal property.
2.01.62 PSA shall mean a Purchase and Sale Agreement executed between a Company and
Contractor pursuant to this Contract, and PSAs shall mean, collectively, all Purchase and
Sale Agreements executed between Contractor and a Company pursuant to this Contract, in each case,
substantially in the form of Exhibit E hereto.
2.01.63 Put Option shall mean the option granted to each Company as set forth in
Article 18.
2.01.64 Ready for Transfer shall mean, (a) in the case of Reefed Items that are to
be reefed in their current locations, when all requirements for reefing and transfer to the
appropriate Governmental Agency have been met (other than the transfer of title to the Reefed Items
to the Governmental Agency), (b) in the case of Reefed Items that are to be reefed in other
locations, when such Reefed Items are severed from the remainder of the Facilities to which they
are attached, (c) in the case of Facilities that are to be removed from their present location,
when such Facilities are first loaded on to a vessel for transportation to shore, (d) in the case
of those components of Wells that must be removed in connection with their plugging and
abandonment,
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when such Well components are first loaded on to a vessel for transportation to shore, and (e)
in the case of those components of Wells that remain in place following plugging and abandonment,
when such Wells are plugged and abandoned in accordance with requirements of the MMS.
2.01.65 Records shall mean all designs, plans, models, drawings, prints, samples,
transparencies, specifications, reports, manuscripts, working notes, documentation, manuals,
photographs, negatives, tapes, discs, databases, software, engineering data, and other information,
data, and items embodied in any tangible form produced by or for Contractor in performance of the
Work or in contemplation of performance of the Work.
2.01.66 Reefed Items shall mean such portion of the Facilities that Contractor
elects to reef pursuant to the terms of this Contract and applicable Laws.
2.01.67 Respective Share shall mean, in the case of each of BP and GOM, Thirty-Seven
and One-Half Percent (37.50%), and in the case of Chevron, Twenty-Five Percent (25.00%).
2.01.68 Security Agreement shall have the meaning as set forth in Article 20.
2.01.69 Site Clearance Verification shall mean a verification method conducted by or
on behalf of Contractor, in accordance with applicable MMS or other Governmental Agency regulations
or standards in order to confirm that the bottom areas surrounding each of the Platforms and each
of the Wells have been cleared in accordance with applicable MMS or other Governmental Agency
regulations or standards.
2.01.70 Subcontractor or Subcontractors when used in connection with
Contractor shall include any contractor or subcontractor of any tier hired by Contractor to perform
any services or furnish any materials or equipment at, on, or adjacent to, or in transit to or
from, a Work Site.
2.01.71 Taxes shall mean all applicable taxes, including all (federal, state, and
local) ad valorem, income or net worth, property, occupation, payroll, employment, first use, gross
receipts, privilege, sales, use, consumption, excise, and other governmental charges, duties,
tariffs, levies, licenses, fees, permits, and assessments.
2.01.72 Tender means the execution by a Company of a Bill of Sale under Article 18.
2.01.73 Third Party or Third Parties shall mean any Persons not included
in Companies Group or Contractor Group.
2.01.74 Transferred Items shall have the meaning set forth in Section 3.03.
2.01.75 Wells shall mean all wells associated with or formerly producing from the
Platforms, including those fifty-nine (59) wells more fully described on Exhibit F, together with
components of the foregoing, other than wells that had been permanently plugged and abandoned in
accordance with MMS requirements prior to the Effective Date.
2.01.76 Work shall mean the services furnished by Contractor under this Contract,
and the furnishing of equipment, supplies, products, labor, or materials by Contractor, pursuant to
this Contract, as described in Exhibit G hereto.
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2.01.77 Work Site shall mean the locations of the Facilities and, in addition, shall
include, if applicable, the facilities or locations of Contractor or its Subcontractors and any
other site, onshore or offshore, at which any Work is performed, including any vessel or aircraft
used by any Person of Contractor Group in the performance of the Work.
Article 3.
SCOPE OF WORK; COMMENCEMENT AND COMPLETION OF WORK; AS IS WHERE IS
Section 3.01 Scope of Work.
Contractor shall perform the Work upon the terms and provisions set forth in this Contract.
The Scope of the Work is described in Exhibit G attached hereto and made a part hereof.
Section 3.02 Commencement of Work; Completion of Work.
Contractor shall commence the Work on the Effective Date and shall continue to perform the
Work with due diligence until the Work has been completed in accordance with the requirements of
this Contract and all applicable requirements of Laws and Governmental Agencies (Completion of
Work); provided, however, that prior to the Commencement Date, Contractor may
perform only office, procurement, and engineering work and Contractor shall not perform any Work
offshore or any Work that can only be performed by the operator recognized by the MMS for the Wells
and Designated Aliquots. If the Commencement Date does not occur on the Effective Date or if
Contractor is not yet prepared to assume the performance of overflight, spill response, maintenance
of navigational aids, and other necessary operations as required by Governmental Agencies, BP, as
current operator of the Facilities, will continue to perform such operations until Contractor is
prepared to perform such operations. However, BP, as current operator of the Facilities, shall not
undertake any decommissioning activities unless required to do so by any Governmental Agency during
such period. To the extent that Companies are not otherwise entitled to indemnity under contracts
with other contractors, Contractor shall Indemnify Companies under the provisions of Article 13 for
any Claims/Losses Connected With such continued operations. All out-of-pocket costs and expenses
incurred by virtue of such continued operations shall be deducted from the Initial Payment based
upon Companies good faith estimate, with the balance to be deducted from any subsequent payments
required under this Contract. The target date for Completion of Work based on current information
is on or before December 31, 2010.
Section 3.03 Title.
Unless title to the Facilities or an undivided portion thereof has previously been transferred
to Contractor pursuant to exercise of a Put Option by a Company, each Company grants, bargains,
sells, conveys and assigns to Contractor, and Contractor accepts and assumes title to and ownership
of portions of the Facilities at such time as such portions are Ready for Transfer (the
Transferred Items). To the extent necessary to document Contractors ownership of the
Transferred Items, each Company shall execute a Bill of Sale affecting such Transferred Items.
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Section 3.04 Reefed Items.
As part of the Work to be performed under this Contract, Contractor shall determine which, if
any, of the Facilities shall be reefed pursuant to the terms of this Contract and applicable Law.
Any Reefed Items that will not be reefed in place shall be removed and transported by Contractor to
the respective locations at which such are to be reefed. Subject to the provisions of Section
8.02, Contractor shall obtain all necessary permits from all applicable Governmental Agencies in
order to reef the Reefed Items, shall execute the necessary deeds of donation and shall pay all
necessary fees and payments in connection therewith.
Section 3.05 No Exclusions from Work.
Contractor assumes all risk, costs, and expenses with respect to performing the Work, known
and unknown, including the risks specified below. Except as set forth in Section 3.06, Contractor
further agrees that the Contract Sum shall not be increased nor shall Contractors performance
under this Contract be excused in the event of any additional cost or burden associated with any of
the following:
3.05.01 NORM and Asbestos. The Contract Sum and the Work to be performed hereunder
shall include the proper disposal of any naturally occurring radioactive material (NORM)
or asbestos attributable to the Facilities in accordance with all applicable Laws.
3.05.02 Structural Damage or Other Damage. The Contract Sum and the Work cover all of
the Facilities in whatever condition such Facilities may be in now or in the future. Contractor
accepts the full risk of any damage to any of the Facilities now or in the future, including any
change in condition or location or loss or damage to the Facilities or changes to a Work Site or
seabed surrounding the Facilities, whether or not as a result of an event of Force Majeure, an
allision, a collision, or any other cause.
3.05.03 Wellbore Associated Flow or Well Control Issues. Contractor is aware and
acknowledges that the Facilities include at least fifty-nine (59) Wells that have not been plugged
and abandoned, some of which are known to be leaking.
3.05.04 Force Majeure. The occurrence of an event of Force Majeure may justify an
extension of time for performance, but an event of Force Majeure shall not excuse non-performance
of any of Contractors obligations.
Section 3.06 Additional Wells.
In the event that Contractor determines that there are in excess of sixty-one (61) Wells
included in the Facilities, each Company shall pay Contractor its Respective Share of Contractors
actual costs plus ten percent (10%) as compensation for profit and overhead for decommissioning
such additional Wells. Contractor shall invoice and deliver to the Certifying Representative, in
triplicate, a documented and itemized invoice following the completion of the plugging and
abandonment of each such Well and the Certifying Representative shall review, verify and process
the invoice, and each Company shall pay its Respective Share of such invoice in accordance with
Section 10.04.
Section 3.07 Conditions; As Is, Where Is.
Contractor has had the opportunity to conduct whatever inspections it wishes to conduct, and
Contractor accepts the condition, whether known or unknown, of the Facilities, the Existing
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Assets, the Transferred Items, the Other Equipment, and the Work Sites, without warranty of
any kind from the Companies. For purposes of: (a) its acceptance of the Work; (b) its acceptance
of title to the Existing Assets under Section 5.01.01; (c) its acceptance of title to the
Facilities upon exercise of a Put Option under Article 18; (d) its acceptance of the Transferred
Items under Section 3.03; and (e) all other purposes of this Contract, each PSA, and each Bill of
Sale, Contractor and each Company hereby agree as follows:
COMPANIES HEREBY DISCLAIM, AND CONTRACTOR HEREBY MAKES A FULL WAIVER OF, ANY WARRANTY AS TO
REDHIBITION OR THE CONDITION OF THE EXISTING ASSETS OR THE OTHER EQUIPMENT OR THE FACILITIES OR THE
TRANSFERRED ITEMS OR ANY PART THEREOF OR A WORK SITE (ENVIRONMENTAL AND OTHERWISE, ON THE EFFECTIVE
DATE OR HEREAFTER), THIS CONTRACT, EACH PSA, EACH BILL OF SALE, AND ANY TRANSFER PURSUANT THERETO
BEING MADE ON AN AS IS WHERE IS BASIS. COMPANIES AND CONTRACTOR ACKNOWLEDGE AND AGREE THAT
CONTRACTOR HAS HAD FULL, COMPLETE AND UNLIMITED ACCESS TO THE EXISTING ASSETS AND THE OTHER
EQUIPMENT AND THE FACILITIES AND THE TRANSFERRED ITEMS AND THE WORK SITES FOR ALL TESTS AND
INSPECTIONS WHICH CONTRACTOR, IN ITS SOLE DISCRETION, DEEMED NECESSARY, DESIRABLE OR APPROPRIATE
FOR THE PROTECTION OF ITS INTERESTS. CONTRACTOR ACKNOWLEDGES AND AGREES THAT CONTRACTOR ACCEPTS
THE EXISTING ASSETS AND THE OTHER EQUIPMENT AND THE FACILITIES AND THE TRANSFERRED ITEMS AND THE
WORK SITES AS IS WHERE IS, AND THAT CONTRACTOR IS RELYING SOLELY ON ITS OWN INSPECTION OF THE
EXISTING ASSETS AND THE OTHER EQUIPMENT AND THE FACILITIES AND THE TRANSFERRED ITEMS AND THE WORK
SITES AND NOT ON ANY WARRANTIES OR REPRESENTATIONS FROM OR ON BEHALF OF THE COMPANIES AT ANY TIME
AS TO THE CONDITION OF THE EXISTING ASSETS OR THE OTHER EQUIPMENT OR THE FACILITIES OR THE
TRANSFERRED ITEMS OR THE WORK SITES IN ANY RESPECT, AND THE TERMS OF THIS CONTRACT AND EACH PSA AND
EACH BILL OF SALE, INCLUDING THE COMPENSATION PAYABLE TO CONTRACTOR UNDER THIS CONTRACT, EACH PSA,
AND EACH BILL OF SALE TAKES INTO CONSIDERATION THE CONDITION OF THE EXISTING ASSETS AND THE OTHER
EQUIPMENT AND THE FACILITIES AND THE TRANSFERRED ITEMS AND THE WORK SITES. COMPANIES HEREBY
DISCLAIM, AND CONTRACTOR HEREBY WAIVES, ALL WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE CONDITION OF THE EXISTING ASSETS OR THE OTHER EQUIPMENT OR THE
FACILITIES OR THE TRANSFERRED ITEMS OR THE WORK SITES INCLUDING ANY REPRESENTATIONS OR WARRANTIES
(I) AS TO THE PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF, (II) AS TO THE ABSENCE OF REDHIBITORY OR
LATENT DEFECTS OR VICES (WHETHER APPARENT, EASILY DISCOVERABLE OR HIDDEN, KNOWN OR UNKNOWN), (III)
AS TO THE FITNESS OF THE EXISTING ASSETS OR THE OTHER EQUIPMENT OR THE FACILITIES OR THE
TRANSFERRED ITEMS OR THE WORK SITES FOR ANY ORDINARY OR PARTICULAR PURPOSE, INCLUDING THEIR
FITNESS FOR USE IN CONNECTION WITH THE WORK, AND (IV) THEIR SUITABILITY OR CAPACITY FOR ANY
PURPOSE, INCLUDING, THEIR SUITABILITY OR CAPACITY IN CONNECTION WITH THE WORK. CONTRACTOR HEREBY
RELEASES THE COMPANIES FROM ALL
16
CLAIMS/LOSSES FOR ALL OF THE FOREGOING, INCLUDING ANY CLAIM/LOSS FOR REDHIBITION OR FOR AN
INCREASE IN COMPENSATION PAYABLE TO CONTRACTOR UNDER THIS CONTRACT OR A PSA OR A BILL OF SALE.
CONTRACTOR ACKNOWLEDGES THAT THE FOREGOING WAIVERS HAVE BEEN BROUGHT TO CONTRACTORS ATTENTION AND
EXPLAINED TO CONTRACTOR IN DETAIL AND CONTRACTOR FURTHER AGREES THAT SAID WAIVERS ARE A MATERIAL
AND INTEGRAL CONSIDERATION FOR THIS CONTRACT AND EACH PSA AND EACH BILL OF SALE AND HAVE BEEN
KNOWINGLY AND VOLUNTARILY AGREED TO AND MADE BY CONTRACTOR.
Article 4.
CONDITIONS PRECEDENT
The following conditions precedent shall be satisfied before Contractor may perform any Work
offshore or any Work that can only be performed by the operator recognized by the MMS for the Wells
and Designated Aliquots. When Contractor believes that the conditions precedent have been achieved
it shall notify Certifying Representative and shall deliver an invoice, in triplicate, to
Certifying Representative under Section 10.02. After determination by the Companies, in their sole
discretion, that the following conditions precedent have been achieved, the Certifying
Representative shall notify Contractor in writing to that effect and the date of such notice shall
be the Commencement Date.
Section 4.01 MMS Qualification; Bonds.
Contractor shall have been qualified with the MMS as an operator and shall have furnished all
necessary bonds and parent guaranty as required by the MMS in connection therewith and shall have
provided satisfactory evidence to the Companies in order to be designated as operator of the Wells
and Designated Aliquots.
Section 4.02 Permits.
In addition to the Existing Permits, Contractor shall have obtained from each Governmental
Agency with jurisdiction over the Facilities, the Work, or a Work Site any permits, approvals, or
other documents (including any required Right-of-Use and Easement necessary for operation of the GI
47 C-AUX caisson, Platform ID Number 20051) necessary to perform the Work offshore.
Section 4.03 Designation of Operator; MMS Approvals.
The Contractor shall have filed the MMS forms delivered to it pursuant to Section 9.01, all
forms required for it to be the Designated Applicant in accordance with MMS requirements, and
evidence of financial responsibility under the Oil Pollution Act. All such filings and such
evidence shall have been approved by the MMS and any other applicable Governmental Agency.
Section 4.04 Insurance.
The Contractor shall have furnished the insurance required by Article 14.
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Section 4.05 Escrow Agreement.
The Escrow Agent, the Companies, and the Contractor shall have executed the Escrow Agreement.
Article 5.
EXISTING ASSETS AND EXISTING PERMITS
Section 5.01 Transfers.
Upon the Commencement Date, and in consideration of the Work to be performed by Contractor,
each Company shall execute a Bill of Sale pursuant to Section 5.01.01 and BP, as current operator,
shall execute a Bill of Sale pursuant to Section 5.01.02.
5.01.01 Existing Assets. Each Company shall transfer its undivided right, title, and
interest in the property described on Exhibit H hereto (the Existing Assets).
5.01.02 Existing Permits. BP shall transfer the permits from the MMS and other
Governmental Agencies described on Exhibit I hereto (the Existing Permits), to the
extent assignable under applicable Law. Such transfer shall take place upon the Commencement Date
except as otherwise specified in Exhibit I.
Section 5.02 No Warranty of Title.
Transfer of the Existing Assets and the Existing Permits is made and accepted without any
warranty of title whatsoever.
Section 5.03 Delivery.
No Company shall be required to move the Existing Assets from their current locations, and any
costs of transport shall be borne solely by Contractor.
Article 6.
REPRESENTATIONS AND WARRANTIES
Contractor hereby represents and warrants to Companies as follows:
Section 6.01 Organization and Good Standing.
Contractor is a corporation duly organized, validly existing and in good standing under the
Laws of the State of Texas and has all requisite corporate power and authority to perform the Work
and acquire the Existing Assets and the Existing Permits, the Facilities, and the Transferred
Items. Contractor is duly licensed or qualified to do business as a foreign corporation and is in
good standing under the laws of the States of Texas and Louisiana.
Section 6.02 Corporate Authority; Authorization of Agreement.
Contractor has all requisite corporate power and authority to execute and deliver this
Contract, to consummate the transactions contemplated by this Contract and to perform all
obligations placed on Contractor in this Contract. This Contract, when executed and delivered by
Contractor, constitutes the valid and binding obligation of Contractor, enforceable against it in
accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency
or other Laws relating to or affecting the enforcement of creditors rights and general
18
principles of equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
Section 6.03 No Violations.
Contractors execution and delivery of this Contract and consummation of the transaction
contemplated by this Contract will not: (a) conflict with or require consent of any person or
entity under any terms, conditions or provisions of Contractors certificate of incorporation or
bylaws; (b) violate any provision of, or require any consent or approval under any Law applicable
to Contractor; or (c) result in creation or imposition of any lien or encumbrance on any of the
Facilities or Contractors Property (other than pursuant to the Security Agreement).
Section 6.04 Litigation.
There is no litigation, action or proceeding by a Person pending against Contractor or, to
Contractors knowledge, threatened against Contractor that would have a material adverse effect on
the timely consummation of the transaction contemplated by this Contract.
Section 6.05 Bankruptcy.
There are no bankruptcy or receivership proceedings pending against, being contemplated by or,
to Contractors knowledge, threatened against Contractor.
Section 6.06 Qualification.
Contractor (a) is generally familiar with all phases of the Work to be performed, the
character, quality and quantity of materials to be used, the character of decommissioning equipment
and facilities needed, both preliminary to and during the prosecution of the Work, the general and
local weather and other conditions, and all other matters that may in any way affect the Work or
its prosecution under this Contract; (b) the Work is in Contractors usual line of business and
Contractor is familiar with the risks involved in the Work; and (c) it is capable of performing the
Work safely and efficiently in accordance with the provisions of this Contract and the regulations
and standards of the MMS and all other applicable Governmental Agencies.
Section 6.07 Laws.
Contractor and its Subcontractors are familiar with and knowledgeable about all Laws, which
are now or may become applicable to the Contract and any Work performed in connection herewith,
including those pertaining to immigration, employment, labor, health, safety, security, and
environmental protection.
Section 6.08 Gifts, Etc.
Neither Contractor nor any other Person in the Contractor Group has: (a) given any
commissions, payments, gifts of substantial value, kickbacks, lavish or extensive entertainment, or
other things of value to any officer, director, employee, agent, or representative of any Company,
or any family member thereof, or received same from any vendor, supplier, or contractor in
connection with this Contract, or (b) paid any fee, commission, rebate, or anything of value to or
for the benefit of any governmental official having jurisdiction over a Work Site. Companies shall
have the right to audit Contractor Group to determine compliance with this representation.
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Section 6.09 Indemnity.
Contractor shall Indemnify Companies Group from all Claims/Losses arising from the breach by
Contractor of any representation or warranty of this Article 6.
Article 7.
REPRESENTATIONS OF EACH COMPANY
Each Company, with respect to itself only, hereby represents and warrants to Contractor as
follows:
Section 7.01 Organization and Good Standing.
Such Company is a corporation or a limited liability company duly organized, validly existing
and in good standing under the Laws of its state of organization, and has all requisite corporate
power and authority to enter into this Contract and to perform its obligations hereunder. Such
Company is duly licensed or qualified to do business as a foreign corporation or limited liability
company and is in good standing under the laws of the States of Texas and Louisiana.
Section 7.02 Corporate Authority; Authorization of Agreement.
Such Company has all requisite corporate power and authority to execute and deliver this
Contract, to consummate the transactions contemplated by this Contract and to perform all
obligations placed on such Company in this Contract. This Contract, when executed and delivered by
such Company, constitutes the valid and binding obligation of such Company, enforceable against it
in accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other Laws relating to or affecting the enforcement of creditors rights and general
principles of equity (regardless of whether such enforceability is considered in a proceeding at
law or in equity).
Section 7.03 No Violations.
Such Companys execution and delivery of this Contract and consummation of the transaction
contemplated by this Contract will not: (a) conflict with or require consent of any person or
entity under any terms, conditions or provisions of such Companys certificate of incorporation or
organization or bylaws or operating agreement, as the case may be; (b) violate any provision of, or
require any consent or approval under any Law applicable to such Company; or (c) result in creation
or imposition of any lien or encumbrance on any of the Facilities.
Section 7.04 Litigation.
There is no litigation, action or proceeding by a Person pending against such Company or, to
such Companys knowledge, threatened against such Company, that would have a material adverse
effect on the timely consummation of the transaction contemplated by this Contract.
Section 7.05 Bankruptcy.
There are no bankruptcy or receivership proceedings pending against, being contemplated by or,
to such Companys knowledge, threatened against such Company.
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Article 8.
CONTRACTORS COVENANTS
Contractor hereby covenants and agrees with Companies that it shall comply with the following
covenants:
Section 8.01 Cooperation.
Contractor acknowledges that one or more of the Companies is or may in the future be involved
in Company Operations at or near a Work Site. Contractor covenants and agrees that it shall take
commercially reasonable measures to ensure that its performance of the Work shall not impair,
interfere with, or affect any Company Operations or any Company Property. Accordingly, Contractor
shall communicate regularly with the Certifying Representative concerning Contractors proposed
schedule of Work in order to assist Companies in planning operations to minimize impairment of,
interference with, or effect upon the Work. Notwithstanding the foregoing, in the event a Company
determines that Contractors Work impairs, interferes with, or affects such Companys Operations or
any of such Companys Property, Contractor shall immediately take all steps necessary to remedy
such impairment, interference, or effects unless Contractor has provided reasonable notice of its
proposed schedule of Work, has no other available Work Sites, and would incur standby charges if it
were to take such steps.
Section 8.02 Permit Requests and Modifications.
In recognition of ongoing Company Operations on Company Property near the Work Sites,
Contractor covenants and agrees that it will not apply for any permit to reef or reef in place
without giving each Company thirty (30) Days prior written notice. If any Company indicates that
Work pursuant to such permit would impair, interfere with, or affect such Companys Operations,
Contractor shall select an alternate reef site that eliminates such impairment, interference, or
effect to the satisfaction of the affected Company.
Section 8.03 Subsequent MMS Filings.
Promptly upon receipt from the Companies of MMS forms with respect to the GI F-1 Well and the
Designated Aliquot containing Platform GI 40 F and in any event prior to conducting any Work on
such Well or Designated Aliquot, Contractor shall file such forms, all forms required for it to be
the Designated Applicant in accordance with MMS requirements, and evidence of financial
responsibility under the Oil Pollution Act. All such filings and such evidence shall have been
approved by the MMS and any other applicable Governmental Agency prior to Contractor conducting any
Work thereon.
Section 8.04 Performance.
Contractor covenants and agrees that it shall safely and efficiently prosecute the Work with
due diligence and care in a good and workmanlike manner with qualified, careful and efficient
workers, and first class goods and equipment in strict compliance and accordance with (a) generally
accepted standards of decommissioning practice for the Work covered under this Contract; (b) the
provisions of this Contract; and (c) all applicable regulations and standards of the MMS and all
other Governmental Agencies.
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Contractor covenants and agrees that the Work shall be completed properly, free from liens and
defects, and shall meet all requirements of this Contract and that Contractor, in conducting the
Work, shall not employ any Person whose employment would violate applicable labor Laws.
Contractor shall supply individuals who are authorized under the laws of the United States to
perform the Work on the Outer Continental Shelf. Any individual who lacks such authorization shall
not be allowed to take part in the portion of the Work that occurs on the Outer Continental Shelf.
Section 8.05 Anti-Bribery, Etc.
8.05.01 Contractor shall not pay any fee, commission, rebate, or other value to or for the
benefit of any governmental official having jurisdiction over the Work or a Work Site, if such
payment would be inconsistent with or penalized by applicable Laws.
8.05.02 Contractor shall comply with all applicable Laws, rules, regulations, decrees, and/or
official governmental orders of the United States relating to anti-bribery and anti-money
laundering.
8.05.03 No Person in Contractor Group shall make, offer, or promise to make, any payment or
other transfer of anything of value, including the provision of any service, gift or entertainment,
directly or indirectly to: (a) any government official (including directors, officers, and
employees of government-owned and government-controlled companies and public international
organizations); (b) any director, officer, or employee of a Person of the Companies Group; (c) any
political party, official of a political party, or candidate for public office; (d) an agent or
intermediary for payment to any of the foregoing; or (e) any other Person for the purpose of
obtaining or influencing the award of or carrying out this Contract, if, and to the extent that to
do so is or would be in violation of or inconsistent with the anti-bribery or anti-money laundering
laws of any relevant jurisdiction, including the U.S. Foreign Corrupt Practices Act and successor
legislation and the applicable country legislation implementing the OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions.
For the purposes of this Section 8.05 the term government official shall mean any director,
officer or employee of any government or any department, agency or instrumentality thereof, and/or
of any enterprise in which a government owns an interest, and/or of any public international
organization. This term also includes any Person acting in any official, administrative or
judicial capacity for or on behalf of any such government or department, agency, instrumentality,
company, or public international organization.
8.05.04 Contractor and its Affiliates have and shall apply effective disclosure controls and
procedures; have and shall maintain books, records, and accounts which, in reasonable detail,
accurately and fairly reflect the transactions undertaken and the disposition of assets; and have
and shall maintain an internal accounting controls system that is sufficient to ensure the proper
authorization, recording and reporting of all transactions and to provide reasonable assurance that
violations of the anticorruption laws of the applicable jurisdictions will be prevented, detected
and deterred.
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8.05.05 In the event that a Company has any basis for a good faith belief that Contractor may
not be in compliance with the undertakings and/or requirements set forth in this Section 8.05 such
Company shall advise Contractor in writing of its good faith belief and Contractor shall cooperate
fully with any and all inquiries undertaken by or on behalf of such Company in connection
therewith, including the provision by Contractor of personnel and supporting documents and
affidavits if reasonably deemed necessary by such Company.
Section 8.06 Records.
Contractor covenants and agrees that it shall maintain and it shall cause its Subcontractors
to maintain the Records for not less than seven (7) years after completion of the Work; provided,
however, if any Company or any Person makes a timely written claim which relates to the Work
performed pursuant to this Contract within such seven (7) year period, then Contractor shall retain
any Records that are relevant to the claim until final resolution of such claim. In addition, in
the event that Contractor elects to destroy any of such Records after the termination of such
period, Contractor shall notify Companies and Companies, at their option, may require that all such
Records instead be delivered to them or as they direct.
Section 8.07 Payment of Bills.
Contractor covenants and agrees that it shall promptly pay all bills for labor and materials
performed and furnished by Contractor and all parties claiming by, through or under Contractor in
connection with the performance of the Work.
Section 8.08 Taxes, Liens, and Charges.
Contractor covenants and agrees to pay all Taxes, licenses and fees levied or assessed against
Contractor in connection with, or incident to, Contractors performance of this Contract.
Contractor shall pay its Subcontractors and discharge all valid Taxes, liens, claims, charges, or
other impositions imposed and to be imposed by applicable Laws on Contractor Connected With the
Work performed hereunder.
Section 8.09 Qualification.
Contractor shall maintain its qualification with the MMS and all other Governmental Agencies
necessary to perform the Work and to fulfill its other obligations under this Contract.
Section 8.10 IP Rights.
Contractor shall not breach or infringe any copyrights, patents, trade secrets, and other
intellectual property rights (IP Rights) of any Person in performance of the Work and
related to equipment, materials, services, computer software, processes or business methods
supplied or employed by Contractor in performing the Work. If Contractor requires any license or
similar right under a Persons IP Rights, or the performance of the Work requires the payment of
any royalty or similar fee, such fee shall be paid by Contractor as a part of its Work and shall
not increase the Contract Sum.
Section 8.11 Monitoring; Future Response.
From and after the Commencement Date, Contractor shall monitor, in accordance with all
applicable Laws, the Work and the Facilities. Following Completion of Work Contractor shall
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remain liable for all pollution, spill response, further requirements of Governmental
Agencies, and damages to or caused by the Facilities and the Work, all at its sole cost, risk, and
expense.
Section 8.12 Navigation.
From and after the Commencement Date, Contractor shall be responsible for providing and
maintaining all navigational aids on or in connection with the Facilities, including lights, buoys,
and any other required navigational aids required under applicable Law or regulations of any
Governmental Agency.
Section 8.13 Conditions Precedent.
Contractor shall work diligently to satisfy all conditions precedent of Article 4 prior to
January 2, 2008 or as soon thereafter as possible.
Section 8.14 Release.
Prior to performing any Work that is subject to an Existing Permit, Contractor shall use
commercially reasonable efforts to obtain a release from the MMS or other Governmental Agency of
any obligations or liabilities of any Company arising from acts or occurrences after the Effective
Date. In any event, as between Contractor and Companies, Contractor shall be solely responsible
for payment and performance of all obligations arising under the Existing Permits on and after the
Effective Date.
Section 8.15 Re-Designation of Operator.
Following achievement of the last Milestone Event in connection with the Facilities contained
within a Designated Aliquot, Contractor shall cooperate with Companies in the designation of GOM as
operator and Designated Applicant of such Designated Aliquot.
Section 8.16 Response to Requests for Information.
Contractor shall respond promptly to requests from the Certifying Representative regarding
progress of the Work, schedules of the Work, anticipated dates for completion of Milestone Events
and anticipated dates and amounts of Milestone Payments and other matters reasonably related to
performance of the Work and shall furnish the Certifying Representative copies of any other
documents or instruments as the Certifying Representative may reasonably request in connection
therewith.
Section 8.17 Escrow Agreement.
Contractor shall negotiate with Companies in good faith in order to agree upon an Escrow
Agreement acceptable to Contractor, Companies, and Escrow Agent.
Section 8.18 Indemnity.
Contractor shall Indemnify Companies Group from all Claims/Losses arising from the breach by
Contractor of any covenant or agreement of this Article 8.
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Article 9.
COVENANTS OF EACH COMPANY
Each Company severally, and not jointly, hereby covenants and agrees with Contractor that it
shall comply with the following covenants:
Section 9.01 MMS Forms.
As soon as reasonably practical after the Effective Date, each Company shall execute and
deliver to Contractor MMS Form 1123 for Contractor to be designated operator of the Wells and the
Designated Aliquots other than the GI 40 F-1 Well and the Designated Aliquot containing Platform GI
40 F. As soon as reasonably practical after BP, as current operator, completes decommissioning
work in connection with Platform GI 40 I, each Company shall execute and deliver to Contractor MMS
Form 1123 for Contractor to be designated operator of the GI 40 F-1 Well and the Designated Aliquot
containing Platform GI 40 F.
As soon as reasonably practical after the Effective Date, each Company shall execute and
deliver to Contractor MMS Form 1017 and BP shall execute and deliver to Contractor MMS Form 1022,
for Contractor to be Designated Applicant for the Designated Aliquots other than the Designated
Aliquot containing Platform GI 40 F. As soon as reasonably practical after BP, as current
operator, completes decommissioning work in connection with Platform GI 40 I, each Company shall
execute and deliver to Contractor MMS Form 1017 and BP shall execute and deliver to Contractor MMS
Form 1022 for Contractor to be Designated Applicant for the Designated Aliquot containing
Platform GI 40 F.
Section 9.02 Cooperation.
Each Company shall cause the Certifying Representative to communicate regularly with
Contractor (or, in the case of confidentiality concerns, a Company shall communicate directly with
the Contractor) concerning proposed Company Operations, and each Company shall exercise
commercially reasonable efforts to plan Company Operations to minimize impairment of, interference
with, or effect upon the Work. Notwithstanding the foregoing, in the event a Company determines
that Contractors Work impairs, interferes with, or affects such Companys Operations or any of
such Companys Property, such Company shall not be required to accept such impairment,
interference, or effect and shall be entitled to enforce Contractors covenant under Section 8.01.
Section 9.03 Additional Documentation.
As soon as commercially reasonable after the Commencement Date, BP shall deliver copies of
well files, platform diagrams, engineering files, photographs, sonar images, and other information
with respect to the Facilities that are reasonably necessary to the performance of the Work by
Contractor; provided, however, that BP shall not be obligated to deliver any of (a)
BPs general corporate books, records and files, even if containing references to the Facilities,
(b) books, records, and files that are not transferable or cannot be disclosed under the terms of
any third-party agreement or any Law, (c) information entitled to legal privilege, including
attorney work product and attorney-client communications and information relating to litigation and
claims, (d) interpretative data, cores, geological and geophysical data, reserve data, seismic, and
economic projections, (e) personnel information, (f) income tax information, or (g) proposals
25
received from Contractor or other Persons and records of negotiations with and economic
analyses associated therewith.
Section 9.04 Release.
BP shall use commercially reasonable efforts to cooperate with Contractor in the performance
of Contractors obligations under Section 8.14.
Section 9.05 Escrow Agreement.
Companies shall negotiate with Contractor in good faith in order to agree upon an Escrow
Agreement acceptable to Contractor, Companies, and Escrow Agent.
Section 9.06 Other Equipment.
BP shall use commercially reasonable efforts to make the Other Equipment available to
Contractor during the performance of the Work.
Section 9.07 Certifying Representative.
Companies shall cause a Certifying Representative to be appointed and shall allow the
Certifying Representative to act on behalf of the Companies as provided in this Contract.
Article 10.
CONTRACT SUM; MILESTONES; PAYMENT PROCEDURES
Section 10.01 Total Compensation.
As consideration for the full and complete performance of the Work, each Company shall pay to
Contractor its Respective Share of SEVEN HUNDRED AND FIFTY MILLION AND NO/100 DOLLARS
($750,000,000.00) (the Contract Sum), payable in installments as set forth below, and
subject to all of the terms and conditions of this Contract. Except as set forth in Section 3.06,
the Contract Sum covers and includes all the compensation, payment, and remuneration that the
Companies are obligated to pay Contractor for its Work under this Contract and the PSAs.
Section 10.02 Initial Payment.
Subject to all of the terms and conditions of this Contract, within fifteen (15) Days
following the Commencement Date, each Company shall pay to Escrow Agent for deposit into the Escrow
Account its Respective Share of SEVENTY MILLION AND NO/100 DOLLARS ($70,000,000.00).
Section 10.03 Mobilization Payment.
Contractor shall provide written notice to Certifying Representative that the first
intervention vessel capable of performing the Work has arrived at the first Work Site and that
Contractor has performed Work for fourteen (14) Days at such Work Site. Subject to all of the terms
and conditions of this Contract, within fifteen (15) Days following verification by the Certifying
Representative of such events, each Company shall pay to Escrow Agent for deposit into the Escrow
Account its Respective Share of THIRTY MILLION AND NO/100 DOLLARS ($30,000,000.00).
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Section 10.04 Milestone Payments; Procedures.
10.04.01 During the course of the performance of the Work, subject to all of the terms and
conditions of this Contract and approval of the Certifying Representative, each Company shall pay
to Contractor its Respective Share of the Milestone Payment applicable to each Milestone Event
achieved by Contractor since the last payment date, computed in accordance with Exhibit J hereto.
10.04.02 Contractor shall deliver to the Certifying Representative, at the address set forth
below (or such other Person or address as may be specified in writing by the Companies or the
existing Certifying Representative to Contractor), in triplicate, a documented and itemized invoice
for each individual Milestone Event, together with all inspections, reports, third-party reports,
approvals of Governmental Agencies, Site Clearance Verifications, and releases of liens and
encumbrances as specified in Exhibit C:
Richard D. Lynch
BP America Production Company
550 WestLake Park Boulevard
Houston, Texas 77079
Telephone: 281-366-3566
Fax: 281-366-7981
10.04.03 The Certifying Representative shall review and verify each invoice and all supporting
documents submitted in connection therewith and it or its designee shall conduct any inspections it
deems necessary in connection with review and verification of achievement of the Milestone Event as
promptly as practicable following receipt thereof (but in any event within fifteen (15) Business
Days following receipt thereof), and on or before the first Business Day following the end of such
period, the Certifying Representative shall notify Contractor in writing of: (a) its concurrence
that the Milestone Event has been achieved and the invoice has been approved for payment or (b) its
dispute as to the adequacy of the supporting documents or Contractors achievement of such
Milestone Event, including a reasonably detailed description thereof. Within thirty (30) Days
after notification by the Certifying Representative of concurrence, each Company, subject to all
terms and conditions of this Contract, shall pay to Contractor its Respective Share of such
invoice. In the event of any such dispute, the Certifying Representative, the Companies, and
Contractor shall meet promptly and shall cooperate in good faith to attempt to resolve such dispute
within fifteen (15) Business Days following receipt by Contractor of the Certifying
Representatives notice of such dispute. If the dispute is resolved, the Certifying Representative
shall so notify the Companies and, subject to all terms and conditions of this Contract, within
thirty (30) Days thereafter, each Company shall pay to Contractor its Respective Share of such
invoice.
Section 10.05 Final Payment; Procedure.
10.05.01 As a condition to the Final Payment, Contractor shall deliver to the Certifying
Representative, in triplicate, a notice that it believes that it has achieved all of the Milestone
Events and that there is no pollution emanating from the Facilities and no unresolved objection by
the MMS or any Governmental Agency to Contractors performance or completion of the Work, together
with a documented and itemized invoice for the Final Payment of ONE HUNDRED MILLION AND NO/100
DOLLARS ($100,000,000.00).
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10.05.02 The Certifying Representative shall review and verify such final invoice and all
supporting documents submitted in connection therewith and it or its designee shall conduct any
inspections it deems necessary in connection with review and verification of achievement of all of
the Milestone Events and verification that there is no pollution emanating from the Facilities and
that there is no unresolved objection from the MMS or any Governmental Agency to Contractors
performance or completion of the Work as promptly as practicable following receipt thereof (but in
any event within fifteen (15) Business Days following receipt thereof), and on or before the first
Business Day following the end of such period, the Certifying Representative shall notify
Contractor in writing of: (a) the approval of the invoice for payment or (b) its dispute as to the
adequacy of the supporting documents or Contractors achievement of all of the Milestone Events or
verification that there is no pollution emanating from the Facilities and that there is no
unresolved objection from the MMS or any Governmental Agency to Contractors performance or
completion of the Work (other than monitoring, repairs, and other obligations that may arise in the
future), including a reasonably detailed description thereof. Within thirty (30) Days after
notification by the Certifying Representative of its approval of the invoice, each Company, subject
to all terms and conditions of this Contract, shall pay to Contractor its Respective Share of such
invoice. In the event of any such dispute, the Certifying Representative, the Companies, and
Contractor shall meet promptly and shall cooperate in good faith to attempt to resolve such dispute
within fifteen (15) Business Days following receipt by Contractor of the Certifying
Representatives notice of such dispute. If the dispute is resolved, the Certifying Representative
shall so notify the Companies and, subject to all terms and conditions of this Contract, within
thirty (30) Days thereafter, each Company shall pay to Contractor its Respective Share of such
invoice.
Section 10.06 Late Payment
The amount of any payment required to be made by a Company to Contractor pursuant to this
Article 10 that is not paid within the time periods specified herein, other than an amount that is
not paid because it is being disputed as set forth in Section 10.04 or Section 10.05, shall bear
simple interest at the LIBOR Rate or the highest lawful interest rate authorized by law, whichever
is lower, from the date that such payment is required to be made hereunder until such amount is
actually paid by such Company.
Section 10.07 Escrow Account
Payments made to the Escrow Agent under Section 10.02 and Section 10.03 shall be available to
be drawn by Contractor from the Escrow Account from time to time upon compliance with the
procedures of the Escrow Agreement only for the purposes of engineering, acquisitions of materials,
and other costs and expenses directly required for the performance of the Work or to satisfy the
Assumed Obligations as defined in the PSAs.
Section 10.08 Method of Payments
Payments of Milestone Payments and the Final Payment shall be made by the Companies to
Contractor by wire transfer to the following account:
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JPMorgan Chase Bank
New York, NY
Swift Code: CHASUS33
ABA No. 021000021
Credit to Wild Well Control, Inc.
Acct No.1590885032
Section 10.09 No Release
Neither the Certifying Representatives concurrence that Contractor has achieved a Milestone
Event or has completed the Work (other than monitoring, repairs, and other obligations that may
arise in the future), nor payment by a Company of any invoice therefor or any portion thereof shall
in any way relieve Contractor of its responsibility for the full, complete and satisfactory
performance of the Work.
Article 11.
CONFIDENTIALITY
Section 11.01 Confidential Information.
Subject to Section 11.04, Contractor agrees that this Contract and any technical or business
information that is disclosed to Contractor or its Subcontractors in connection with any Work
hereunder by any Person of Companies Group, either orally or in writing (hereinafter collectively,
Confidential Information) is to be treated as confidential and proprietary. Contractor
agrees that Confidential Information shall be maintained in strict confidence and shall not be used
or disclosed to any Person (other than the Parties) other than in performing the Work. The
requirement to maintain information in strict confidence, however, shall not apply to Confidential
Information that: (a) is or becomes generally available to the public through no wrongful act of
Contractor; (b) was in the possession of Contractor prior to the time it was acquired hereunder
and was not acquired, directly or indirectly, from a Company or its Affiliates or from others under
an obligation of confidentiality; (c) is independently made available as a matter of right to
Contractor by a Third Party without obligations of confidentiality, provided that such Third Party
did not acquire such information directly or indirectly from a Person of Companies Group; or (d)
is required by applicable Laws to be divulged; provided that Contractor shall notify Companies
prior to any disclosure, and shall assist Companies in minimizing the extent of disclosure. The
Parties agree that the Confidentiality Agreement dated as of July 31, 2007 binding upon the Parties
is hereby terminated.
Section 11.02 Digital Information.
Contractor acknowledges and agrees that each Company, in its sole discretion, may deliver
and/or store Confidential Information in digital form on the Internet, extranets and/or through
public networks and service providers. Such digital information will be stored on internal or
external computers and accessed from public telecommunications networks, and will be accessible by
a controlled group of Persons (the Controlled Group). Contractor agrees that the
delivery and storage of such Confidential Information in this manner shall not be deemed as making
the information generally available to the public, even if such Confidential Information is
accessed by Persons who are not within the Controlled Group.
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Section 11.03 Third Party Disclosure.
Contractor agrees to limit access to Confidential Information to its employees, agents,
representatives, and Subcontractors who reasonably require such access for purposes of this
Contract. Contractor agrees to use its best efforts in requiring that its employees, agents,
representatives, and Subcontractors maintain Confidential Information in strict confidence.
Contractor shall not make nor permit the making of any copies, abstracts, derivatives, or summaries
of any Confidential Information, except in the performance of the Work. Upon completion of the
Work or at a Companys request, Contractor shall return such Companys Confidential Information
(including, but not limited to, all copies, abstracts, derivatives, and summaries).
Section 11.04 Public Announcements; Public Disclosures.
No press release or other public announcement or public disclosure having or containing any
reference, either directly or by implication, to this Contract or the transactions herein
contemplated, or to a PSA or to a Company or any other Persons of Companies Group, will be made or
used by Contractor or on its behalf, unless the same has been approved in writing by an authorized
officer of each Company. This prohibition specifically includes any public release (either through
print or broadcast news media) any articles prepared for internal or external publication,
technical papers, and discussions with journalists or other Persons. In the case of any filings
required by Laws to be made with the Securities and Exchange Commission or any other Governmental
Agency by Guarantor, Contractor shall advise Companies of the announcement or disclosure Guarantor
intends to make, and shall allow the Companies to comment and suggest changes prior to making such
announcement or disclosure. Notwithstanding the foregoing, Guarantor shall be entitled to respond
to questions from stockholders, respond to inquiries from financial analysts and media
representatives in a manner consistent with its past practice without prior consultation with the
Companies to the extent such consultation is not reasonably practicable. No response or statement
shall be disparaging of any Company.
Article 12.
INDEPENDENT CONTRACTOR AND LOUISIANA STATUTORY EMPLOYEE
Section 12.01 Independent Contractor.
In the performance of the Work, Contractor is an independent contractor, shall control the
performance of the details of the Work, and shall be responsible for the results as well as
responsible for ensuring that the performance of the Work is conducted in a manner consistent with
appropriate safety, health, and environmental considerations.
Section 12.02 No Direction or Control.
The presence of and the observation and inspection by Companies representative(s) or
Certifying Representative at a Work Site will not relieve Contractor from Contractors obligations
and responsibilities under this Contract. Neither Contractor, nor Contractors employees, agents,
representatives, or Subcontractors, shall have authority to commit any Company or any Person of
Companies Group to any binding legal obligation nor shall any of them be deemed for any purpose to
be agents, servants, or representatives of Companies Group in the performance of the Work. No
Company shall have direction or control of the Persons of
30
Contractor Group in the performance of the Work and Companies are interested only in the
results obtained. Nothing contained in this Contract will be construed to be inconsistent with
such independent contractor relationship.
Section 12.03 Statutory Employer.
In all cases where Contractors Employees (which for purposes of this Section 12.03 and only
as between Contractor and Companies Group, are defined to include Contractors and its
Subcontractors direct, borrowed, special, or statutory employees) are performing work in or
offshore the State of Louisiana or are otherwise covered by the Louisiana Workers Compensation
Act, La. R.S. 23:1021 et seq., each Company and Contractor agree that the Work performed by
Contractor and Contractors Employees pursuant to this Contract is an integral part of and are
essential to the ability of such Company to generate such Companys goods, products, and services
for the purpose of La. R.S. 23:1061(A)(1). Furthermore, each Company and Contractor agree that
each Company is the statutory employer of Contractors Employees for purposes of La. R.S.
23:1061(A)(3) and that each Company shall be entitled to the protections afforded a statutory
employer under the laws of the State of Louisiana. Irrespective of a Companys status as the
actual or alleged statutory or special employer (as defined in La. R.S. 23:1031(C)) of any of
Contractors Employees, Contractor, as between Contractor and Companies Group, shall remain
primarily responsible for the payment of all workers compensation and medical benefits to
Contractors Employees, and shall not be entitled to seek contribution for any such payments from
any Company or any other Person of Companies Group, and Contractor further agrees that it will
Indemnify Companies Group from and against any such payments and that Contractor will Indemnify
Companies Group from and against any and all Claims/Losses relating to or asserted by Contractors
Employees even if any such Contractors Employee is also held to be an employee (whether a
statutory, special or borrowed employee, or otherwise) of any Company or any other Person of
Companies Group and, as set forth in Article 13 regardless of any Negligence/Fault of Companies
Group.
Article 13.
INDEMNITY
Section 13.01 Special Definitions:
Except as provided below, when used in this Article or elsewhere in this Contract, all terms
shall have the meanings set forth in Article 2 (Definitions), with specific reference to the
definitions of Affiliate, Claims/Losses, Companies Group, Contractor Group, Facilities,
Contractors Property, Party, Person, and Work.
13.01.01 Indemnify or Indemnification shall be deemed to include and stand
for the following phrase: release, protect, Defend, indemnify and hold harmless.
13.01.02 Indemnitor shall refer to the Party against whom indemnity (or release) is
sought under this Contract.
13.01.03 Indemnitee shall refer to the Person seeking indemnity (or release) under
this Contract.
13.01.04 Connected With shall be deemed to include and stand for directly or
indirectly arising out of, resulting from, or in any way connected with or related to, at any time
31
(whether prior to or after the Effective Date) unless expressly provided otherwise, and shall
cover all Claims/Losses in any way Connected With, as applicable, this Contract, the Work, the
Reefed Items, the Existing Assets, the Other Equipment, the Transferred Items, or the Facilities,
and including any Claims/Losses associated with any presence on any premises, including any
Claims/Losses associated with any ingress, egress, loading, or unloading, and transportation to and
from any Work Site or in connection with the Work.
13.01.05 Defend or Defense shall include the obligation to pay reasonable
attorneys fees, court costs, expert fees, and other reasonable costs incurred by the Indemnitor or
the Indemnitee as a result of defending against a Claim/Loss as required by this Contract, or, at
the election and cost of the obligor, the obligation to select and engage competent attorneys and
experts to defend against a Claim/Loss as required by this Contract.
13.01.06 Excluded Claims/Losses shall mean all claims and losses of all kinds and
descriptions including liabilities, liens, privileges, and other encumbrances, causes of action
(including actions in rem or in personam, at law or in equity), obligations, judgments, interest,
costs, expenses, and awards whether created by law, contract, tort, arbitration, voluntary
settlement (to the extent authorized by the Indemnitor), or otherwise, and including, except as
otherwise expressly provided, claims based on contractual indemnity, claims for punitive,
exemplary, consequential or indirect damages and/or losses for the above regardless of how such
claims and/or losses may be characterized whenever asserted:
(a) for or with respect to bodily injury or death that occurred prior to the Effective
Date; or
(b) for or with respect to loss or damage to property of any Person that occurred prior
to the Effective Date (except for Claims/Losses that have not been asserted against
Companies prior to the Effective Date for loss or damage to property resulting from
pollution from the Facilities); or
(c) for any tax or royalty obligations attributable to or payable with respect to
periods ending on or prior to the Effective Date; or
(d) for reimbursement of expenses in any way Connected With the control of pollution
paid by, agreed to by, or authorized by Companies prior to the Effective Date; or
(e) for fines or penalties Connected With the Facilities to the extent and only to the
extent, such fine or penalty was assessed against Companies prior to the Effective Date; or
(f) arising prior to the Effective Date and in any way Connected With the ownership or
operation of Facilities or the Existing Assets, the Other Equipment, other than any
Claims/Losses Connected With: (i) the performance of the Work; (ii) the condition of the
Facilities or any pollution therefrom (regardless when or how such condition or pollution
occurred, whether before or after the Effective Date, even if caused by the Negligence/Fault
of any Person of Companies Group); or (iii) any of Contractors other express obligations
under this Contract.
In addition to the foregoing, until Companies have completed their decommissioning work on Platform
GI 40 I, the term Excluded Claims/Losses shall include any liability arising out of
Companies work in connection with such Platform GI 40 I.
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13.01.07 Negligence/Fault shall, except to the extent expressly otherwise provided,
include negligence (including sole, concurrent, or gross negligence), willful misconduct, strict
liability, other premises liability, unseaworthiness, unairworthiness, liability for defective
equipment, and breach of statutory duty, whether or not resulting from preexisting conditions,
whether or not such Negligence/Fault is sole, concurrent, joint, comparative, active, or passive.
13.01.08 The phrase even if caused by the Negligence/Fault shall mean that the
Parties intend for the indemnity and other obligations to apply whether or not the Claims/Losses
are contributed to by, occasioned by, or are the result of the Negligence/Fault of the Indemnitee
or any other Person, and that the Parties intend for the indemnity and other obligations to apply:
|
(i) |
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without regard to any conflicting rules of liability under any applicable Laws, |
|
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(ii) |
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without regard to any successful limitation or exoneration of liability
proceeding filed by or on behalf of the indemnifying Party pursuant to the laws of any
state or country or the provisions of any international convention, and |
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(iii) |
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without regard to whether the Claims/Losses in question are sought directly or
indirectly by way of recovery, tort or contractual indemnification, or contribution by
a Person against the Indemnitee. |
Section 13.02 Contractors General Indemnity Obligations.
Except for the Excluded Claims/Losses, Contractor shall, subject to Section 3.02, Indemnify
Companies Group from and against all Claims/Losses Connected With this Contract, the Work, the
Reefed Items, the Existing Assets, the Other Equipment, the Transferred Items, or the Facilities,
including bodily injury, personal injury, illness, death, or loss or damage to property (including
removal of wreck and debris of any such property (including any vessel, Facilities, or other
property), whether necessitated by Laws or any Governmental Agency or interference with Companies
Group present or future operations, or Companies Group leasehold obligations), all risks of leaks,
pollution, blowout, well control issues, and any other Claims/Losses, whether sustained by
Contractor Group, Companies Group, or Third Parties even if caused by the Negligence/Fault of
Companies Group or any other Person.
Section 13.03 Pollution.
Except for the Excluded Claims/Losses, Contractor shall, subject to Section 3.02, assume
responsibility for, and shall Indemnify Companies Group from and against, all Claims/Losses
Connected With this Contract, the Work, the Reefed Items, the Existing Assets, the Other Equipment,
the Transferred Items, or the Facilities for any pollution or contamination, including cleanup,
control, removal, restoration, and remediation, even if caused by the Negligence/Fault of
Companies Group or any other Person.
Section 13.04 Fines and Penalties.
Contractor agrees to assume responsibility for and to Indemnify Companies Group from and
against any fines or penalties assessed by the MMS or any other Governmental Agency Connected With
this Contract, the Work, the Reefed Items, the Existing Assets, the Other Equipment, the
Transferred Items, or the Facilities even if caused by the Negligence/Fault of Companies Group
or any other Person, except to the extent, and only to the extent, such fine or penalty was
assessed prior to the Effective Date.
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Section 13.05 Limitation on Damages.
Contractor waives any Claims/Losses against Companies Group for punitive, exemplary,
consequential or indirect damages Connected With this Contract, the Work, the Reefed Items, the
Existing Assets, the Other Equipment, the Transferred Items, or the Facilities, including loss of
profits or loss of use. The waiver afforded by this provision shall be applicable even if such
Claims/Losses are caused by the Negligence/Fault of Companies Group or any other Person benefiting
from the waiver. To the extent permitted by Laws, any statutory remedies that are inconsistent
with this provision of the Contract are waived.
Companies waive any Claims/Losses against Contractor Group for punitive, exemplary,
consequential or indirect damages Connected With the Reefed Items, the Existing Assets, the Other
Equipment, the Transferred Items, or the Facilities, including loss of profits or loss of use. In
addition, Companies waive any Claims/Losses against Contractor Group for punitive, exemplary,
consequential or indirect damages arising from damage to property of Companies or delays in
redevelopment production within the boundaries of a Designated Aliquot plus one thousand (1,000)
feet and Connected With the Work in such Designated Aliquot, including loss of profits or loss of
use, but only to the extent such Claims/Losses are not covered by Contractors insurance. The
waiver afforded by this provision shall be applicable even if such Claims/Losses are caused by the
Negligence/Fault of Contractor Group or any other Person benefiting from the waiver. To the
extent permitted by Laws, any statutory remedies that are inconsistent with this provision of the
Contract are waived.
Section 13.06 Notice and Defense.
13.06.01 In the event a claim is made in writing against a Company for which Indemnity is owed
by Contractor, such Company shall promptly give to Contractor notice in writing of (a) such claim,
or (b) proceedings commenced for which Indemnification is claimed. Such notice shall state with as
much detail as is reasonably practicable the facts and circumstances giving rise to the Claim/Loss
against the Indemnitee. Notwithstanding the foregoing, if Contractor is obligated to Indemnify a
Company (or any other Person pursuant to this Contract), lack of prompt notice shall not be a
defense except to the extent prejudice has resulted from such lack of prompt notice.
13.06.02 The Indemnitor shall confer with the Indemnitee concerning the Defense of any such
Claim/Loss proceedings but, subject to the provisions of this Article 13 and any other applicable
provisions of this Contract, if the Indemnitor has assumed the full Defense of the Claim/Loss
without qualification, the Indemnitor or its insurer shall retain control of the conduct of such
Defense, including but not limited to the selection and management of counsel. If the Indemnitor
has assumed the full Defense of the Claim/Loss without qualification, any Indemnitee may, upon
written notice to the Indemnitor and at the Indemnitees sole cost and expense, select its own
counsel to participate in and be present for the defense of any such Claim/Loss proceeding,
provided such counsel shall not take any action in the course of such Claim/Loss proceeding to
prejudice the Indemnitors Defense of such Claim/Loss proceeding.
Section 13.07 Insurance.
Contractor agrees to support its indemnity obligations in this Article 13 with insurance or
qualified self-insurance obtained for the benefit of the Companies and the Companies Group as
Indemnitees with minimum limits not less than FIFTY MILLION UNITED STATES
34
DOLLARS (US$50,000,000.00), or the maximum allowed by applicable Laws, whichever is less.
Except as otherwise mandated by applicable Laws, all indemnity obligations of Contractor as set out
in this Article 13, shall be without monetary limit. Moreover, the indemnity obligations of
Contractor as set out in this Article 13 are independent of any insurance requirements set out in
Article 14 below, and such indemnity obligations shall not be limited by any insurance requirements
and shall not be lessened or extinguished by reason of Contractors failure to obtain the required
insurance coverage or by any defenses asserted by Contractors insurers.
Article 14.
INSURANCE
Contractor shall procure or cause to be procured on or before the Commencement Date and shall
maintain in effect with respect to and for the duration of this Contract the insurance policies
described below, at its sole cost and expense.
Section 14.01 Commercial General Liability Insurance.
Contractor shall maintain commercial general liability (CGL) insurance and, if
necessary, commercial excess/umbrella insurance, for both onshore and offshore operations, with a
combined minimum limit of not less than FIVE MILLION UNITED STATES DOLLARS (US$5,000,000.00) each
occurrence. If such primary or excess CGL insurance contains a general aggregate limit, it shall
apply separately to this Contract.
14.01.01 CGL insurance (primary and excess) shall be written on ISO occurrence form CG 00 01
07 98 (or a substitute form providing coverage at least as broad) and shall cover liability arising
from premises, operations, independent contractors, products-completed operations, personal injury
and advertising injury, and explosion, collapse, and underground hazards, and blanket broad form
contractual liability coverage.
14.01.02 The status of Companies Group as an insured under Contractors CGL policies shall
not restrict coverage under such CGL with respect to the escape or release of pollutants at a Work
Site.
14.01.03 Whether by endorsement or otherwise to the CGL policy, or by separate policy,
coverage shall be provided for liability arising from pollution, explosion, collapse, underground
hazards, or employment-related practices.
14.01.04 Any exclusion for non-owned watercraft shall be deleted as respects liability
coverage and contractual liability coverage.
Section 14.02 Business Auto Liability Insurance.
Contractor shall maintain business auto liability and, if necessary, commercial umbrella
liability insurance, with a minimum limit of not less than ONE MILLION UNITED STATES DOLLARS
(US$1,000,000.00) each accident.
14.02.01 Such insurance shall cover liability arising out of any auto (including owned, hired,
and non-owned autos).
14.02.02 Business auto coverage shall be written on ISO form CA 00 01, CA 00 05, CA 00 12, CA
00 20, or a substitute form providing equivalent liability coverage. If necessary,
35
the policy shall be endorsed to provide contractual liability coverage equivalent to that
provided in the 1990 and later editions of CA 00 01.
14.02.03 Pollution liability coverage equivalent to that provided under the ISO pollution
liability-broadened coverage for covered autos endorsement (CA 99 48) shall be provided, and the
Motor Carrier Act endorsement (MCS 90) shall be attached.
Section 14.03 Workers Compensation and Employers Liability Insurance.
Contractor shall maintain employers liability insurance as well as workers compensation
insurance that complies with the legal requirements of each state or other jurisdiction in which
the Work is to be performed.
14.03.01 The employers liability minimum limits shall not be less than ONE MILLION UNITED
STATES DOLLARS (US$1,000,000.00) each accident.
14.03.02 The U.S. Longshore and Harbor Workers Compensation Act endorsement shall be attached
to the policy.
14.03.03 The Outer Continental Shelf Lands Act endorsement (WC 00 01 09 A) shall be attached
to the policy.
14.03.04 The Maritime Coverage endorsement (WC 00 02 01) shall be attached to the policy.
14.03.05 Contractor shall include an alternate employer endorsement in favor of each
Company.
Section 14.04 Protection and Indemnity and Hull and Machinery Insurance.
14.04.01 When Contractor or its Subcontractors provide owned, chartered, hired, leased, or
operated vessels in performing the Work, Contractor shall maintain or cause to be maintained
protection and indemnity (P&I) insurance on all such vessels with an overall minimum
limit of TEN MILLION UNITED STATES DOLLARS (US$10,000,000.00), or the value of each vessel,
whichever amount is greater, and including coverage for collision and towers liability, third
party bodily injury and property damage liability, and pollution liability. In addition,
Contractor shall maintain or cause to be maintained hull and machinery insurance on all such
vessels.
14.04.02 With regard to all primary and excess P&I insurance, Companies Group shall have no
liability for calls or premium assessments. In addition, all primary and excess P&I insurance
shall, to the extent of the risks and liabilities assumed by Contractor, be endorsed (a) to provide
full coverage to Companies Group as additional insured without limiting coverage to liability as
owner of the vessel and to delete any as owner clause and any other language purporting to limit
coverage to liability of an insured as owner of the vessel, and (b) to delete any language
limiting coverage for Companies Group in the event of the applicability of any limitation of
liability statute. Contractors and/or Subcontractors P&I insurance shall also cover removal of
wreck and debris if such removal is required by Laws or any Governmental Agency.
Section 14.05 Aviation Liability Insurance.
If Contractor or any Subcontractor engaged by Contractor uses, owns, charters, rents, borrows,
or leases an aircraft to be used in the performance of the Work, Contractor shall
36
maintain or cause to be maintained aircraft liability insurance, with minimum limits of at
least TEN MILLION UNITED STATES DOLLARS (US$10,000,000.00) per passenger or crew seat, subject to a
minimum of TEN MILLION UNITED STATES DOLLARS (US$10,000,000.00) or require equivalent insurance
from the company providing the aircraft.
Section 14.06 Pollution Liability Insurance.
Contractor shall maintain in force for the duration of this Contract pollution legal liability
insurance for both onshore and offshore operations applicable to bodily injury; property damages,
including loss of use of the damaged property or of property that has not been physically injured
or destroyed; cleanup costs; and Defense, including costs and expenses incurred in the
investigation or settlement of claims; all in connection with any loss Connected With any
Facilities. Coverage shall be with minimum limits of not less than TEN MILLION UNITED STATES
DOLLARS (US$10,000,000.00) per occurrence.
Section 14.07 Operators Extra Expense/Well Control Coverage.
Contractor shall maintain in force for the duration of this Contract Operators Extra
Expense/Well Control coverage for all of the Facilities with minimum limits of not less than TEN
MILLION UNITED STATES DOLLARS (US$10,000,000.00) per occurrence.
Section 14.08 Excess Insurance.
Contractor shall maintain in force, for the duration of this Contract, Excess coverage for all
coverages identified in this Article 14, with coverage at least as broad as underlying, and with
minimum limits sufficient to raise coverage for each policy to no less than FIFTY MILLION UNITED
STATES DOLLARS (US$50,000,000.00) per occurrence.
Section 14.09 Evidence of Insurance.
Upon request of any Company, Contractor shall furnish Companies with one or more certificates
of insurance, on a form that is satisfactory to Companies, executed by a duly authorized
representative of each insurer, evidencing compliance with the insurance requirements of this
Article 14. Acceptance by Companies of an incomplete or improper certificate, or failure of
Companies to identify a deficiency in coverage from the certificate submitted, shall not be
construed as a waiver of Contractors obligation to maintain in effect the coverages required by
this Article. All certificates shall provide for thirty (30) Days written notice to Companies
prior to the cancellation or material change of any insurance referred to therein.
Within ten (10) Days of receipt of a written request of any Company, Contractor shall provide
certified copies of all insurance policies requested by any Company.
Section 14.10 General Insurance Provisions.
14.10.01 All insurance policies of Contractor whether or not required by this Contract, shall
be endorsed to waive all rights of subrogation against Companies Group, and (except for workers
compensation coverage and professional liability coverage) shall, to the extent of the risks and
liabilities assumed by Contractor, name Companies Group as an additional insured on a broad form
basis with such additional insured coverage including coverage for the sole or
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concurrent negligence of the additional insureds and not being restricted to (a) ongoing
operations, (b) coverage for vicarious liability, or (c) circumstances in which the named insured
is partially negligent.
14.10.02 All insurance policies of Contractor, whether or not required by this Contract,
shall, to the extent of the risks and liabilities assumed by Contractor, be primary as respects any
other policies held by any Company or any Person of Companies Group or any other policies
providing any coverage in favor of any Company or any Person of Companies Group. The coverage
afforded Companies Group under such policies shall delete any excess clause or co-insurance clause
that requires sharing or renders any insurance in favor of Companies Group as primary. Such
policies shall afford primary coverage to Companies Group without any contributions or
reimbursement, in whole or in part, by any insurance, or self-insured retention or account
maintained by or in favor of Companies Group.
14.10.03 Companies do not represent that the minimum coverages and minimum limits required in
this Article 14 will be adequate to protect Contractor. Such coverage and limits shall not be
deemed as a limitation on Contractors liability under the other provisions of the Contract.
14.10.04 The insurance obligations required under this Article 14 are independent from all
other obligations of Contractor under this Contract and apply whether or not required by any other
provision of this Contract and shall not in any way limit Contractors indemnity obligations.
14.10.05 Reasonable deductibles for the policies required in this Article 14 are permitted,
but Contractor shall remain responsible for all deductibles and for all Claims/Losses for which
Contractor is responsible whether or not insurance is available.
14.10.06 All insurance required of Contractor in this Contract shall be placed with insurers
reasonably acceptable to Companies. These insurers shall maintain a minimum rating of A-VII by the
A.M. Best Company or equivalent.
14.10.07 In the event of any claim by Contractor against any insurer it shall promptly provide
copies of all correspondence and documents related to any such occurrence or any claim to
Companies.
Section 14.11 Self-Insurance.
Notwithstanding the insurance requirements of this Contract, Contractor may self-insure a part
of the insurance coverage required by this Article 14 (beyond any retention or reasonable
deductible) subject to Companies prior written consent. In addition, Companies reserve the right
to withdraw consent to any self-insurance at any time with thirty (30) Days written notice to
Contractor. In addition, as respects insurance for control of well, Companies agree that consent
to self-insurance of all or part of the control of well coverage will not be unreasonably withheld.
All deductibles and any self-insurance coverage or retention shall be treated as if they were
insurance coverage or an insurance policy, and Companies Group shall have the same benefits and
protection from Contractor as if Contractor had obtained insurance coverage for that amount, and
Companies Group shall not be prejudiced in any way or lose any benefit or protection as a result
of any decision by Contractor to self-insure or maintain any particular deductible(s) or
self-insured retention. In addition, Contractor warrants that it will disclose its insurance
deductibles (and any self insured retention(s)) to Companies prior to execution of this
38
Contract and that it will provide thirty (30) Days advance written notice of any material
change in any deductible or retention level.
Section 14.12 Insolvency.
The insolvency, liquidation, bankruptcy, or failure of any insurance company providing
insurance for Contractor or its Subcontractors or failure of any such insurance company to pay
claims accruing, shall not be considered a waiver of, nor shall it excuse Contractor from complying
with, any of the provisions of this Contract.
Section 14.13 Subcontractors Insurance.
Contractor, as it deems necessary, shall cause each Subcontractor employed by Contractor to
perform any part of the Work to purchase and maintain policies of insurance as described in this
Article as well as any other coverages that Contractor deems necessary. Such policies shall be
endorsed in the same manner to waive subrogation against the Companies Group, be primary, and name
Companies Group as an additional insured. Contractor shall obtain and furnish to Companies (upon
request) copies of certificates of insurance evidencing coverage for each Subcontractor. Any
deficiencies in insurance coverage of any Subcontractor shall be the responsibility of Contractor.
Article 15.
FORCE MAJEURE
Except as may be specifically otherwise provided in this Contract, no Party shall be liable
for delays in performance (other than obligations to pay their Respective Share of the Contract
Sum) directly occasioned or caused by Force Majeure. Upon the occurrence of Force Majeure, the
Party affected shall give prompt notice thereof, no later than five (5) Days after learning of the
Force Majeure event, to the other Parties and shall, at its cost and expense, do all things
reasonably possible to remove or mitigate its effects.
Article 16.
ASSIGNMENT; DELEGATION; SUBCONTRACTING
Section 16.01 Assignment; Delegation; Subcontracting.
Contractor may not assign, sublet, delegate or subcontract this Contract in whole. Contractor
may utilize Subcontractors for portions of the Work, provided that Contractor shall remain liable
for all of its obligations hereunder, including responsibility for performance of the part of the
Work that is subcontracted. Contractor shall be responsible for all equipment and materials of,
and all actions and inactions of, its Subcontractors as if they were the employees of Contractor.
In the event Contractor does subcontract any portion of the Work, each such subcontract will
provide Companies Group with indemnity, insurance endorsements, warranty, confidentiality, and
other protections equivalent to those set forth in this Contract. No subcontract will create a
contractual relationship between Companies and the Subcontractor, but each subcontract will contain
a provision permitting the assignment of the subcontract to Companies in all cases where Companies
may be entitled under this Contract to require that such assignment be effected. Under no
circumstances will Subcontractor, or its agents, servants, or employees, be considered employees of
any Company.
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Section 16.02 Assignment by Companies.
Each Company may assign its rights and obligations, in whole or in part, under this Contract
to any Person without Contractors consent; provided, that the assigning Company shall remain
liable for the payment of its Respective Share of the Contract Sum to Contractor, subject to the
other terms and conditions of this Contract.
Article 17.
DEFAULT; INSOLVENCY; REMEDIES
Section 17.01 Default.
The occurrence of any of the following shall constitute an Event of Default by Contractor
hereunder:
17.01.01 Commencement Date. If the Commencement Date has not occurred on or before
March 1, 2008 due to the Contractors failure to take any of the actions required to be taken by it
in Article 4.
17.01.02 Completion of the Work. If Contractor has failed to complete the Work (other
than monitoring, repairs, and other obligations that may arise in the future) on or before March
31, 2012, with such date subject to extension as a result of delays due to Force Majeure, but only
to the extent such aggregate delays due to Force Majeure exceed 365 Days.
17.01.03 Representation and Warranty. If any representation or warranty of Contractor
hereunder was, at the time of making, untrue or misleading in any respect.
17.01.04 Performance Defaults. If Contractor has failed to comply with any material
covenant or material obligation under this Contract or has repeatedly failed to comply with
reasonable requests to perform pursuant to the terms and conditions of this Contract.
17.01.05 Default Under Security Agreement. If the security interest granted pursuant
to the Security Agreement has become unenforceable or unperfected or if any prior claim is made on
the Existing Assets.
17.01.06 Default Under Guaranty. If Guarantor has failed to perform its obligations
under the Guaranty, if Guarantor denies or disaffirms its obligations under the Guaranty, if the
Guaranty ceases for any reason to be in full force and effect, or if any judicial proceeding is
filed claiming that the Guaranty is invalid.
17.01.07 Governmental Agency. If the MMS, the Coast Guard, or any other Governmental
Agency has: (a) assessed or threatened to assess any material fine or penalty against any Company,
or (b) required or threatened to require any Company to perform any portion of the Work or to hold
them liable for performance of any portion of the Work; in each case due to Contractors
performance or non-performance of the Work.
17.01.08 Bankruptcy; Insolvency. If Contractor or Guarantor: (a) becomes insolvent;
(b) makes an assignment for the benefit of creditors; (c) is adjudicated a bankrupt; (d) admits in
writing its inability to pay its debts generally as the same become due; (e) institutes any
proceedings under any State or Federal Laws for relief of debtors or for the appointment of a
receiver, trustee or liquidator; (f) files a voluntary petition in bankruptcy or for a
reorganization or for an adjudication as an insolvent or a bankrupt; or (g) fails to remove or bond
any
40
attachment levied on a material portion of Contractors Property or a material portion of the
properties of Guarantor within thirty (30) Days therefrom.
17.01.09 Event of Default under PSA. If an Event of Default has occurred under any
PSA.
Section 17.02 Notice; Opportunity to Cure.
If Contractor: (a) fails to remedy any Event of Default as soon as reasonably practical but in
no event later than sixty (60) Days after notice from the Certifying Representative, or (b) if such
Event of Default is of such a nature that, in Companies reasonable judgment, it cannot be
reasonably remedied within sixty (60) Days, fails to initiate action as soon as reasonably
practical, but in no event later than within sixty (60) Days after its receipt of such notice and
thereafter to proceed diligently and continuously in remedying the Event of Default, then Companies
may, upon written notice to Contractor, exercise one or more of the remedies specified in Section
17.03; provided, however, that Contractor shall not be entitled to notice or an opportunity
to cure in the case of an Event of Default under Section 17.01.08 or an Event of Default that
results in an emergency for which a Governmental Agency requires action by one or more of the
Companies.
Section 17.03 Remedies Upon Default.
Upon the occurrence of an Event of Default by Contractor and the expiration of any notice and
cure period specified in Section 17.02, the Companies (acting through the Certifying
Representative) may, in their sole option, exercise all remedies available to them under applicable
Laws as well as one or more of the following remedies, and exercise of one remedy shall not
preclude exercise of other or additional remedies:
17.03.01 Suspend Work and Payments. Companies may (a) suspend temporarily or
permanently Contractors right to proceed with the Work and (b) suspend payments to Contractor
until such Event of Default is remedied, to Companies satisfaction in their reasonable discretion.
17.03.02 Refund of Amounts Withdrawn Under Escrow Agreement. Companies may require
Contractor to refund to them amounts withdrawn under the Escrow Agreement, plus simple interest at
the LIBOR Rate (or the highest lawful interest rate authorized by law, whichever is lower) from the
date such payments were received by Contractor, minus an amount computed by multiplying the
aggregate amount of the amounts withdrawn under the Escrow Agreement (including interest at the
LIBOR Rate on amounts withdrawn) by a fraction, of which the numerator is the aggregate amount of
Milestone Payments paid to Contractor at the time the refund is calculated, and the denominator is
TWO HUNDRED SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($275,000,000.00). Each Companys Respective
Share of the refund shall be paid directly to each Company. This right to require a refund shall
terminate after TWO HUNDRED SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($275,000,000.00) of Milestone
Payments have been made to Contractor. By way of illustration, if Milestone Payments already paid
are less than TWO HUNDRED SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($275,000,000.00), then refund
equals:
[(EA)] [(EA) x ((Milestone Payments already paid)/(TWO HUNDRED SEVENTY-FIVE MILLION AND NO/100
DOLLARS ($275,000,000.00))].
41
Where:
EA=Amounts withdrawn under the Escrow Agreement plus interest at the LIBOR Rate from the date of
withdrawal.
If Milestone Payments already paid are equal to or greater than TWO HUNDRED SEVENTY-FIVE MILLION
AND NO/100 DOLLARS ($275,000,000.00), then the refund equals zero.
17.03.03 Completion of Work at Expense of Contractor. If Companies suspend or
terminate Contractors right to complete the remaining portion of the Work, the Companies shall
have: (a) the right to take possession and control of the Work, all Records, the Existing Permits
and the Existing Assets (and Contractor shall make commercially reasonable efforts to make the
Other Equipment available to Companies), and (b) the right to complete the remaining portion of the
Work or to have such Work completed by a different Person and, if requested by Companies, to
utilize some or all of the vessels and equipment utilized by Contractor for the Work and some or
all of the contracts and subcontracts executed by Contractor for the Work. With respect to any
Work performed by or on behalf of the Companies, any expenses that exceed the payments that
Companies would have made under this Contract for achievement of the Milestone Event(s) or such
portion(s) of the Work shall be the responsibility of, and recoverable from, Contractor (giving
credit for any amounts recovered under Section 17.03.02). To the extent that Companies are not
otherwise entitled to indemnity under contracts with other contractors in connection with such
Work, Contractor shall Indemnify Companies under the provisions of Article 13 for any Claims/Losses
Connected With such Work, provided Companies have used commercially reasonable efforts to obtain
indemnity from such other contractors.
17.03.04 Emergency Actions. If, prior to the expiration of any applicable notice or
cure periods, Companies determine in their reasonable discretion that an emergency exists that is
not being adequately addressed by Contractor and that a Governmental Agency has required or
threatened to require any Company to perform emergency work or to hold them liable for performance
of any portion of emergency work, Companies shall have the right to take possession and control of
such portions of the Work, the Records, the Existing Permits, the Existing Assets, the Other
Equipment, and other vessels and equipment utilized by Contractor as necessary to proceed to
address the emergency, all at the sole cost, risk, and expense of Contractor (giving credit for any
amounts recovered under Section 17.03.02).
17.03.05 Security Agreement. Companies may enforce all rights under the Security
Agreement.
17.03.06 Demand on Guarantor. Companies may demand full and immediate payment and
performance by Guarantor under the Guaranty.
17.03.07 Escrow Agreement. Companies may enforce all rights under the Escrow
Agreement, including the right to suspend withdrawals by Contractor.
Article 18.
PUT OPTION
Section 18.01 Grant of Put Option.
Contractor hereby grants to each Company the option (each, a Put Option) to require
Contractor to accept the transfer of such Companys undivided interest in the Facilities under such
Companys PSA. Any Company may exercise its Put Option without the joinder of any
42
other Company. Contractor acknowledges that it may become a co-owner in indivision with one
or more Companies as a result of the exercise by an individual Company of its Put Option under its
PSA. Contractor hereby waives any right that it may have under applicable Laws to request or
require a partition of the Facilities for a period of fifteen (15) years from the Effective Date,
or to be a party to, or to have any rights under, any of the JOAs.
Section 18.02 Method of Exercise.
In order to exercise its Put Option a Company shall Tender a Bill of Sale to Contractor at any
time on or after the Effective Date.
Section 18.03 Price; Consideration.
The consideration for the transfer by a Company and for the acceptance of the transfer by
Contractor of undivided interests in the Facilities is the agreement of such Company to pay its
Respective Share of the Contract Sum (less any payments made by such Company under this Contract)
in accordance with, and subject to the terms and conditions of, the applicable PSA. Contractor and
each Company hereby waive any resolutory conditions, conditions subsequent, vendors liens, or
rights to dissolve such transfer arising out of any failure to pay such price.
Section 18.04 Termination of Obligations.
Effective upon a Tender by a Company all of such Companys obligations under this Contract
shall terminate. Contractor acknowledges and agrees that its obligations to Indemnify such Company
arising from actions performed by Contractor prior to such Tender shall continue but shall be
treated as if they had been made under the terms and conditions of such Companys PSA (making due
allowance for differences in terminology between this Contract and such PSA). Otherwise, all
rights and obligations of a Company and Contractor effective upon a Tender shall be governed by
such Companys PSA and Bill of Sale Tendered pursuant thereto. Effective upon a Tender by a
Company, such Company shall no longer be a Company under this Contract; provided,
however, each Company and Contractor acknowledge that under a Companys PSA it shall be
entitled to notices, approvals of payments, and other rights previously provided under this
Contract.
Article 19.
PARENT GUARANTY
Section 19.01 Guaranty.
Contractor shall furnish Companies on the Effective Date with a single Guaranty executed by
Guarantor in the form of Exhibit K attached hereto. The Guaranty shall guarantee performance of
obligations of Contractor under this Contract and each PSA.
Article 20.
SECURITY AGREEMENT
Section 20.01 Security Agreement.
Contractor shall grant to the Companies on the Commencement Date a security interest in the
Existing Assets, all on the terms of the Security Agreement attached hereto as Exhibit L.
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Article 21.
APPLICABLE LAW AND RESOLUTION OF DISPUTES
Section 21.01 Selection of Applicable Law.
This Contract, and any action Connected With this Contract brought by any Party (and any
action brought by any Person of Companies Group or Contractor Group or any Third Party asserting a
third party beneficiary claim pursuant to this Contract) shall be governed by the general maritime
laws of the United States exclusive of any principles of conflicts of laws that would require
application of the substantive laws of another jurisdiction. If it is judicially determined that
the Parties choice of maritime law is unenforceable, the Parties agree that this Contract should
be governed, construed and interpreted in accordance with the laws of the State of Louisiana
exclusive of any principles of conflicts of laws that would require application of the substantive
laws of another jurisdiction. The Parties also agree that with respect to issues where the general
maritime law is silent, this Contract shall be governed, construed and interpreted in accordance
with the laws of the State of Louisiana exclusive of any principles of conflicts of laws that would
require application of the substantive laws of another jurisdiction.
Section 21.02 Venue.
In the absence of mutual agreement in writing, for any action Connected With this Contract
brought by any Party (or any Person of either Contractor Group or Companies Group, or any Third
Party pursuant to this Contract), venue shall be exclusively in federal district court situated in
Harris County, Texas, or if there is no subject matter jurisdiction in federal court, then in the
Texas State District Court situated in Harris County, Texas. The Parties (and any other Persons
asserting any action pursuant to this Contract) submit to personal jurisdiction and waive any other
venue that may be applicable to such action whether by reason of their present or future residence
or domicile or otherwise. Notwithstanding the foregoing, if one or more of the Parties is involved
in litigation in a forum other than in Harris County, Texas, the Parties may assert claims
Connected With this Contract in such litigation to the extent, and only to the extent, necessary to
avoid waiver of such claims. Each Party, knowingly and voluntarily, waives its respective right to
a jury trial.
Section 21.03 Continued Performance.
Except if the Companies exercise any rights under Section 17.03.01 or Section 17.03.03, the
Parties further agree that despite the existence of any claim, dispute, controversy, or pending
action, Companies may require Contractor to continue performing the Work. If Contractor fails to
comply with such requirement, the Parties agree, notwithstanding any other provision of this
Contract, that such failure shall constitute irreparable injury to Companies and that Companies
shall be entitled to obtain appropriate injunctive relief from a court of competent jurisdiction
ordering Contractor to continue performing the Work in accordance with the terms of this Contract.
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Article 22.
SURVIVAL; SEVERABILITY; WAIVER
Section 22.01 Survival.
A Companys acceptance of the Work or any parts thereof or its Tender will not release
Contractor from its obligations under this Contract. Contractor agrees that its obligations under
this Contract survive and extend beyond acceptance of the Work and Tender by a Company. However, a
Tender by a Company shall release such Company from all of its obligations under this Contract.
Section 22.02 Severability.
If any provision or portions, or applications thereof, of this Contract are held to be
unenforceable, invalid or void by any court of competent jurisdiction, this Contract will be deemed
to be amended to modify such provision or portion thereof partially or completely to the extent
necessary to make it enforceable. If necessary, this Contract will be deemed to be amended to
delete the unenforceable, invalid or void provision or portion thereof, in which event the validity
and enforceability of the remaining provisions, or portions, or application thereof, will not be
affected thereby.
Section 22.03 Waiver.
None of the requirements of this Contract will be considered as waived by any Party unless the
same is done in writing. Further, failure by any Party to enforce any rights will not waive those
or other rights hereunder.
Article 23.
NOTICES
Section 23.01 Notice Addresses.
All notices to be given under this Contract shall be in writing and shall be delivered by (a)
hand, (b) registered or certified mail, or (c) facsimile (provided there is confirmation of receipt
of complete transmission), to the following address and to the attention of the person or job title
below:
BP:
BP America Production Company
ATTN: Richard D. Lynch
550 WestLake Park Boulevard
Houston, Texas 77079
Telephone: 281-366-3566
Fax: 281-366-7981
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Chevron:
Chevron U.S.A. Inc.
Attn: Jay Cupples, NOJV Manager
100 Northpark Blvd
Covington, LA 70433
Telephone: 504-592-6158
Fax: 866-910-9953
GOM:
GOM Shelf LLC
Attn: David Carmony, Vice-President, Gulf Coast Region
2000 Post Oak Blvd, Ste 100
Houston, TX 77056-4400
Telephone: 713-296-6294
Fax: 713-296-6333
Contractor:
Wild Well Control
Attn: Patrick J. Campbell, President
2202 Oil Center Court
Houston, TX 77073
Telephone: 281-784-4700
Fax: 281-784-4750
Section 23.02 Effectiveness of Notices.
Notices delivered personally shall be effective when delivered. Notices sent by facsimile
shall be effective on the first Business Day following the date of complete transmission. Notices
sent by registered or certified mail shall be effective when received.
Section 23.03 Notice to a Company.
Except in instances in which notice under this Contract is specifically required to be given
solely to a single Company or the Certifying Representative, each Notice to a Company or to the
Companies shall not be effective unless given to all Companies.
Article 24.
MISCELLANEOUS
Section 24.01 Third Party Beneficiaries.
Except as specifically provided in Article 13 and Article 14, nothing in this Contract will be
construed to confer any rights or benefits in the Contract to anyone other than Persons of
Companies Group, and all duties and responsibilities undertaken pursuant to this Contract will be
for the sole and exclusive benefit of Persons of Companies Group and not for the benefit of any
other Person.
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Section 24.02 Several Liability of the Companies; No Joint Venture or Partnership.
The obligations of the Companies hereunder are several, and not joint or joint and several or
collective. It is not the intention of the Parties to create, nor shall this Contract be construed
as creating, a mining or other partnership or association, or to render the Parties liable as
partners. No Company shall be responsible for payment or performance by any other Company
hereunder. Upon a Tender by a Company, such Companys Respective Share of any payment shall be
subtracted from amounts due under this Contract but shall be provided to be paid by such Company
under its respective PSA.
Section 24.03 Subrogation.
In the event any Company pays Contractor all or a portion of the Respective Share of another
Company, the paying Company shall be subrogated to the rights of Contractor against the non-paying
Company.
Section 24.04 Contractor Not a Successor or Assign.
Notwithstanding anything herein or in any Bill of Sale to the contrary, neither the Tender by
a Company, the transfer of the Transferred Items, nor any other transfer or assignment by a Company
to Contractor shall make Contractor (a) a successor or assign of such Company for purposes of this
Contract or (b) a party to any of the JOAs.
Section 24.05 Entire Contract; Amendment.
This Contract, each PSA, each Bill of Sale, and any agreement executed in connection herewith
or therewith constitutes the full understanding of the Contractor, on the one hand, and the
Companies, on the other hand, and is a complete and an exclusive statement of the terms of their
agreement, and will exclusively control and govern all Work performed by Contractor. All
representations, offers, and undertakings of the Contractor, on the one hand, and the Companies, on
the other hand, made prior to the Effective Date hereof, whether oral or in writing, are merged
herein and into each PSA, each Bill of Sale, and any agreement executed in connection herewith or
therewith. No other contract or agreement, whether executed prior or subsequent to the execution
of this Contract, a PSA, a Bill of Sale, or any agreement executed in connection herewith or
therewith will in any way modify, amend, alter, or change any of the terms or conditions set out
herein unless such contract or agreement: (a) is executed by persons of equal position and
authority within their respective companies as those executing this Contract, a PSA, a Bill of
Sale, or any agreement executed in connection herewith or therewith, and (b) clearly expresses the
specific intention of the Parties to amend this Contract, a PSA, a Bill of Sale, or any agreement
executed in connection herewith or therewith by making specific reference thereto.
Section 24.06 Governmental Agency Approval.
No letters, approvals, or directives of the MMS or any Governmental Agency, whether or not
signed or accepted by Contractor or any Company shall alter or modify the terms and conditions of
this Contract or any PSA.
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Section 24.07 Further Assurances.
From time to time after the Effective Date and without further consideration, a Party shall
execute and deliver such documents and instruments as are reasonably requested by another Party in
order to consummate more effectively the transactions as contemplated by this Contract.
Section 24.08 Counterparts.
This Contract may be executed in counterparts, and different Parties may execute different
counterparts, but all counterparts together shall constitute a single agreement.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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WITNESS THE SIGNATURES of the Parties hereto as set forth below.
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BP AMERICA PRODUCTION COMPANY
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By: |
/s/ Richard D. Lynch, Jr.
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Printed Name: |
Richard D. Lynch, Jr. |
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Title: |
Attorney In Fact |
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CHEVRON U.S.A. INC.
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By: |
/s/ M. H. Forman
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Printed Name: |
M. H. Forman |
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Title: |
Assistant Secretary |
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GOM SHELF LLC by and through its Managing Member,
Apache Corporation
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By: |
/s/ John J. Christmann, IV
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John J. Christmann, IV |
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Vice President |
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WILD WELL CONTROL, INC.
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By: |
/s/ Patrick J. Campbell
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Printed Name: |
Patrick J. Campbell |
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Title: |
President and Chief Executive Officer |
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Signature Page for Wreck Removal Contract
exv99w1
Exhibit 99.1
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FOR FURTHER INFORMATION CONTACT: |
FOR IMMEDIATE RELEASE
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Terence Hall, CEO; Robert Taylor, CFO; |
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Greg Rosenstein, VP of Investor Relations, |
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504-362-4321 |
Superior Energy Services Announces Contracts to Plug Wells and
Decommission Platforms in the Gulf of Mexico
Harvey, La. January 2, 2008 Superior Energy Services, Inc. (NYSE: SPN) today announced that
its subsidiary, Wild Well Control, Inc., has signed contracts with subsidiaries of BP plc (NYSE:
BP), Chevron Corporation (NYSE: CVX) and Apache Corporation (NYSE: APA) to decommission seven
downed platforms and related well facilities located offshore Louisiana for a fixed sum of $750
million.
The work will take place in water depths ranging from 85 feet to 135 feet and is expected to take
three years to complete. Revenue and income will be recognized using the percentage-of-completion
method.
Terence Hall, Chairman and CEO of Superior, stated, Since 1992, our subsidiary, Wild Well Control,
has successfully engineered, planned, managed and/or executed numerous projects of similar size,
scope and complexity, and in all cases has completed these projects on time and within their
customers budgets. During the past three years alone, Wild Well Control has gained access to and
plugged and abandoned more than 340 wells on 30 downed platforms in water depths of up to 340 feet,
which required the removal of more than 15,000 metric tons of steel structure and more than 400
pressurized and unpressurized entries into wells, all involving more than 830,000 diving manhours
and almost 6,500 remotely operated vehicle runs. As a result, we believe our body of work makes us
uniquely qualified to successfully execute this project.
Our approach to this project will be similar to many of our recently completed projects and will
involve the same expertise, proprietary tools and processes, as well as the utilization of
Superiors well intervention, marine assets, rental tools and deployment of best-in-class
resources. We appreciate the confidence that Apache, BP and Chevron are showing in our work
experience and in our ability to execute this project in a safe, efficient and timely manner.
Superior will host a conference call on Thursday, January 3, 2008 at 10 a.m. central time (11 a.m.
eastern time). The call can be accessed from Superiors website at www.superiorenergy.com, or by
telephone at 303-262-2130. For those who cannot listen to the live call, a telephonic replay will
be available through January 10, 2008 and may be accessed by calling 303-590-3000 and using the
pass code 11105602#. An archive of the webcast will be available after the call for a period of 60
days on http://www.superiorenergy.com.
Superior Energy Services, Inc. serves the drilling-related needs of oil and gas companies primarily
through its rental tools segment and the production-related needs of oil and gas companies through
its well intervention, rental tools and marine segments. The Company uses its production-related
assets to enhance, maintain and extend existing production and, at the end of a propertys economic
life, plug and abandon wells and decommission platforms and structures. Superior also owns and
operates mature oil and gas properties in the Gulf of Mexico.
This press release contains certain forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995 which involve known and unknown risks, uncertainties and
other factors. Among the factors that could cause actual results to differ materially are:
volatility of the oil and gas industry, including the level of exploration, production and
development activity; risks associated with the Companys rapid growth; changes in competitive
factors and other material factors that are described from time to time in the Companys filings
with the Securities and Exchange Commission. Actual events, circumstances, effects and results may
be materially different from the results, performance or achievements expressed or implied by the
forward-looking statements. Consequently, the forward-looking statements contained herein should
not be regarded as representations by Superior or any other person that the projected outcomes can
or will be achieved.
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