Exhibit 10.1





Exhibit 10.1




ASSET PURCHASE AGREEMENT

by and among




Key Energy Services, LLC and

Key Marine Services, LLC

as Seller,




Moncla Companies, L.L.C. and

Moncla Marine, L.L.C.

as Purchaser,




L. Charles Moncla, Jr., Moncla Family Partnership, Ltd., L. Charles Moncla, Jr.

Charitable Remainder Trust, Michael Moncla, Matthew Moncla, Marc Moncla,

Christopher Moncla, Bipin A. Pandya, Thomas Sandahl, Rhonda Moncla, Cain Moncla,

Andrew Moncla, and Kenneth Rothstein

as Original Sellers




Second 4 M, Ltd., and




Leon Charles Moncla, Jr. as Payment Agent




dated as of May 13, 2010



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I PURCHASE AND SALE OF ASSETS	 	 	2	 
	 
	 	 	 	 	 	 
	1.1

	 	Purchase and Sale	 	 	2	 
	1.2

	 	Purchase Price	 	 	2	 
	1.3

	 	Deferred Note	 	 	3	 
	1.4

	 	Closing	 	 	3	 
	1.5

	 	Delivery of Assets; Removal of Property	 	 	6	 
	1.6

	 	Redocumentation of Vessels	 	 	6	 
	1.7

	 	No Representation or Warranty as to Condition	 	 	7	 
	1.8

	 	Post Closing Liabilities	 	 	10	 
	1.9

	 	Excluded Liabilities	 	 	11	 
	1.10

	 	Allocation of Purchase Price	 	 	11	 
	1.11

	 	Consents to Certain Assignments	 	 	12	 
	1.12

	 	Transfer of Telephone Lines, Website, and Logos	 	 	13	 
	1.13

	 	Use of Name	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER	 	 	14	 
	 
	 	 	 	 	 	 
	2.1

	 	Existence and Power	 	 	14	 
	2.2

	 	Authorization	 	 	14	 
	2.3

	 	Non-Contravention	 	 	15	 
	2.4

	 	Assets	 	 	16	 
	2.5

	 	No Proceedings	 	 	16	 
	2.6

	 	Employee Plans	 	 	16	 
	2.7

	 	Labor Matters	 	 	16	 
	2.8

	 	Environmental Matters	 	 	17	 
	2.9

	 	Fees	 	 	17	 
	 
	 	 	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER	 	 	17	 
	 
	 	 	 	 	 	 
	3.1

	 	Organization and Existence	 	 	17	 
	3.2

	 	Authorization	 	 	18	 
	3.3

	 	Non-Contravention	 	 	19	 
	3.4

	 	Fees	 	 	19	 
	3.5

	 	Inspections	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ORIGINAL SELLERS AND 4M	 	 	19	 
	 
	 	 	 	 	 	 
	4.1

	 	Deferred Note	 	 	20	 
	4.2

	 	Interest in Purchaser	 	 	20	 
	4.3

	 	Payment Agent	 	 	20	 






 


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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	4.4

	 	4M
	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE V RESTRICTIVE COVENANTS	 	 	21	 
	 
	 	 	 	 	 	 
	5.1

	 	Restriction on Use of Big Rig	 	 	21	 
	5.2

	 	Purchaser Restrictions	 	 	22	 
	5.3

	 	Seller Restrictions	 	 	23	 
	5.4

	 	Seller Permitted Activities	 	 	24	 
	5.5

	 	Consideration	 	 	25	 
	5.6

	 	Reasonable Covenants	 	 	25	 
	5.7

	 	Severability	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE VI AVAILABLE EMPLOYEES	 	 	27	 
	 
	 	 	 	 	 	 
	6.1

	 	Available Employees	 	 	27	 
	6.2

	 	Employment; Benefits	 	 	27	 
	6.3

	 	Retention Compensation	 	 	29	 
	6.4

	 	No Third Party Beneficiaries	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE VII CERTAIN COVENANTS	 	 	31	 
	 
	 	 	 	 	 	 
	7.1

	 	Cooperation	 	 	31	 
	7.2

	 	Further Assurances	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE VIII TRANSITION	 	 	32	 
	 
	 	 	 	 	 	 
	8.1

	 	Communications with Customers	 	 	32	 
	8.2

	 	Reimbursements	 	 	33	 
	8.3

	 	Payments	 	 	33	 
	8.4

	 	Breaux Bridge Yard	 	 	34	 
	8.5

	 	Big Rig	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE IX SURVIVAL; INDEMNIFICATION	 	 	34	 
	 
	 	 	 	 	 	 
	9.1

	 	Survival	 	 	34	 
	9.2

	 	Indemnification	 	 	35	 
	9.3

	 	Indemnification Procedures	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE X CERTAIN DEFINITIONS	 	 	38	 
	 
	 	 	 	 	 	 
	10.1

	 	Certain Defined Terms	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE XI MISCELLANEOUS	 	 	43	 
	 
	 	 	 	 	 	 
	11.1

	 	Notices	 	 	43	 
	11.2

	 	Taxes; Fees	 	 	45	 
	11.3

	 	Amendments; No Waivers	 	 	45	 
	11.4

	 	Expenses	 	 	46	 






 


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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	11.5

	 	Public Announcements	 	 	46	 
	11.6

	 	Successors and Assigns	 	 	46	 
	11.7

	 	Governing Law	 	 	46	 
	11.8

	 	Counterparts; Effectiveness	 	 	47	 
	11.9

	 	Entire Agreement	 	 	47	 
	11.10

	 	Captions	 	 	47	 
	11.11

	 	Severability	 	 	47	 
	11.12

	 	Payment Agent	 	 	47	 






	 	 	 
	Exhibit 1.1(A)

	 	Moncla Companies Assets
	Exhibit 1.1(B)

	 	Marine Assets
	Exhibit 1.4(C)

	 	Key Energy Bill of Sale, Assignment, and Conveyance
	Exhibit 1.4(D)

	 	Key Marine Bill of Sale, Assignment, and Conveyance
	Exhibit 1.4(E)

	 	Coast Guard form CG-1340 Bill of Sale
	Exhibit 1.4(F)

	 	Coast Guard form CG-1258 Application for Redocumentation
	Exhibit 1.4(G)

	 	Protocol for Delivery and Acceptance
	Exhibit 1.4(H)

	 	Lease with Option to Purchase Breaux Bridge Yard
	Exhibit 1.4(I)

	 	Moncla Companies Assignment and Assumption Agreement
	Exhibit 1.4(J)

	 	Moncla Marine Assignment and Assumption Agreement
	Exhibit 1.4(L)

	 	Flow of Funds Memo
	Exhibit 1.10

	 	Form 8594
	Exhibit 4.1

	 	Transfers of interests in Deferred Note; ownership of Deferred Note
	Exhibit 6.3

	 	Second Amendment to the Moncla Recognition and Retention Plan







 


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ASSET PURCHASE AGREEMENT




THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is dated as of May 13, 2010 by, between, and
among Key Energy Services, LLC (“Key Energy”), a Texas limited liability company and Key Marine
Services, LLC (“Key Marine”), a Delaware limited liability company (Key Energy and Key Marine
hereinafter together referred to as “Seller”), Moncla Companies, L.L.C. (“Moncla Companies”), a
Texas limited liability company and Moncla Marine, L.L.C. (“Moncla Marine”), a Louisiana limited
liability company (Moncla Companies and Moncla Marine hereinafter together referred to as
“Purchaser”), L. Charles Moncla, Jr., Moncla Family Partnership, Ltd., L. Charles Moncla, Jr.
Charitable Remainder Trust, Michael Moncla, Matthew Moncla, Marc Moncla, Christopher Moncla, Bipin
A. Pandya, Thomas Sandahl, Rhonda Moncla, Cain Moncla, Andrew Moncla, and Kenneth Rothstein
(collectively, hereinafter referred to as “Original Sellers”), Second 4 M, Ltd., a Texas limited
partnership (“4M”), and Leon Charles Moncla, Jr. as Payment Agent for the Original Sellers and 4M
(“Payment Agent”).



WITNESSETH:




WHEREAS, pursuant to Stock and Membership Interest Purchase Agreement dated as of September
19, 2007, as amended (as so amended, the “2007 Agreement”) Key Energy acquired all of the stock and
limited liability membership interests of Original Sellers in various entities, defined therein as
the “Companies” and used herein with the same meaning;



WHEREAS, Seller desires to sell and Purchaser desires to purchase certain assets that were
owned by one or more of the Companies acquired by Seller pursuant to the 2007 Agreement, along with
certain related assets, for the consideration and on the terms and conditions set forth herein; and


 


 









 





WHEREAS,
terms not otherwise defined herein are used herein as defined in
Section 10.1.

NOW, THEREFORE, the parties hereto hereby agree as follows:



ARTICLE I

PURCHASE AND SALE OF ASSETS




1.1 Purchase and Sale.



Upon the terms and subject to the conditions contained in this Agreement, (A) Moncla Companies
shall purchase from Key Energy, and Key Energy shall sell to Moncla Companies at the Closing (as
defined hereinafter) but effective as of the Effective Time (as defined hereinafter) all of its
right, title, and interest in and to the assets, properties, rights, and interests described on
Exhibit 1.1A hereof (the “Moncla Companies Assets”) and (B) Moncla Marine shall purchase from Key
Marine, and Key Marine shall sell to Moncla Marine, at the Closing but effective as of the
Effective Time all of its right, title, and interest in and to the assets, properties, rights, and
interests described on Exhibit 1.1B hereof (the “Marine Assets” and, together with the Moncla
Companies Assets, the “Assets”), without any representation or warranty as to condition and with
special warranty of title only, limited to any transfers and Encumbrances other than Permitted
Encumbrances executed, suffered, increased, or incurred by Seller after the acquisition of the
Companies by Key Energy pursuant to the 2007 Agreement.



1.2 Purchase Price.



The purchase price (“Purchase Price”) for the Assets purchased by Purchaser shall be the sum
of SEVENTEEN MILLION EIGHT HUNDRED EIGHTY-FIVE THOUSAND AND NO/100 DOLLARS ($17,885,000.00).


 


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1.3 Deferred Note.



Upon delivery by Original Sellers and 4M of that certain non-negotiable promissory note
executed by Key Energy to the order of L. Charles Moncla, Jr., as Payment Agent in the principal
amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), endorsed by Key Energy Services, Inc.,
dated October 25, 2007, payable in five (5) equal annual installments of TWO MILLION AND NO/100
DOLLARS ($2,000,000.00) each (the “Deferred Note”), which Deferred Note has a principal balance on
the date hereof of SIX MILLION AND NO/100 DOLLARS ($6,000,000.00), Key Energy agrees to accelerate
the payment of the principal balance and accrued interest thereon and to pay the same to Payment
Agent at the Closing.



1.4 Closing.



The closing (the “Closing”) shall take place at the offices of Liskow & Lewis, A Professional
Law Corporation at Suite 1800, 1001 Fannin Street, Houston, Texas on May 13, 2010. The Closing
shall be deemed effective as of 12:01 a.m. on May 13, 2010 (the “Effective Time”). At the Closing:



(A) Purchaser shall deliver the Purchase Price to Seller in cash by wire transfer in
accordance with the Flow of Funds Memo.



(B) Payment Agent, on behalf of Original Sellers shall deliver the Deferred Note to Key Energy
and Key Energy shall deliver the principal balance and accrued interest thereon to Payment Agent.



(C) Key Energy shall deliver to Moncla Companies a Bill of Sale, Assignment, and Conveyance
substantially in the form of Exhibit 1.4(C) hereto, selling and assigning all of the Moncla
Companies Assets to Moncla Companies without any representation
or warranty as to condition and with special warranty of title only, limited to any transfers
or Encumbrances other than Permitted Encumbrances executed, suffered, increased, or incurred by
Seller after its acquisition of the Companies pursuant to the 2007 Agreement.


 


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(D) Key Marine shall deliver to Moncla Marine a Bill of Sale, Assignment, and Conveyance
substantially in the form of Exhibit 1.4(D) hereto, selling and assigning all of the Marine Assets
to Moncla Marine without any representation or warranty as to condition and with special warranty
of title only, limited to any transfers or Encumbrances other than Permitted Encumbrances executed,
suffered, increased, or incurred by Seller after its acquisition of the Companies pursuant to the
2007 Agreement.



(E) Key Marine shall deliver to Moncla Marine one or more Marine Coast Guard form CG-1340
Bills of Sale substantially in the form of Exhibit 1.4(E) hereto, selling and assigning to Moncla
Marine all of the Marine Assets that constitute documented vessels, without any representation or
warranty as to condition and with special warranty of title only, limited to any transfers or
Encumbrances other than Permitted Encumbrances executed, suffered, increased, or incurred by Seller
after its acquisition of the Companies pursuant to the 2007 Agreement.



(F) Moncla Marine shall exhibit to Key Marine one or more Coast Guard form CG-1258
Applications for Redocumentation for filing with the United States Coast Guard, substantially in
the form of Exhibit 1.4(F) hereto of any Marine Assets that constitute documented vessels.



(G) Key Marine and Moncla Marine shall execute and deliver one or more Protocols for Delivery
and Acceptance substantially in the form of Exhibit 1.4(G) hereto for any
Marine Assets that constitute documented vessels and any marine barges or other marine assets,
whether or not documented vessels, to acknowledge delivery and transfer of ownership.


 


4









 





(H) Key Energy shall execute and deliver to Moncla Marine a Lease with Option to Purchase (the
“Breaux Bridge Lease”) substantially in the form of Exhibit 1.4(H) hereto, leasing the immovable
property described therein (the “Breaux Bridge Yard”) to Moncla Marine with an option to purchase
on the terms and conditions thereof and of Section 8.4, without any representation or warranty as
to condition and with special warranty of title only, limited to any transfers or Encumbrances
other than Permitted Encumbrances executed, suffered, increased or incurred by Seller.



(I) Moncla Companies shall execute and deliver to Seller an Assignment and Assumption
Agreement, substantially in the form of Exhibit 1.4(I) hereto, assuming all obligations with regard
to certain Assumed Contracts and Credits from and after the Effective Time.



(J) Moncla Marine shall execute and deliver to Seller an Assignment and Assumption Agreement,
substantially in the form of Exhibit 1.4(J) hereto, assuming all obligations with regard to certain
Assumed Contracts and Credits from and after the Effective Time.



(K) Seller shall deliver to Moncla Companies any certificates of title in its possession for
any titled motor vehicles constituting a part of the Assets.



(L) Purchaser, Seller, 4M, Original Sellers, and Payment Agent shall execute and deliver to
one another a Flow of Funds Memo (the “Flow of Funds Memo”) substantially in the form of Exhibit
1.4(L).


 


5









 





(M) Seller shall deliver to Purchaser UCC termination statements and other releases of liens
executed, suffered, increased, or incurred by Seller affecting the Assets after the acquisition of
the Companies pursuant to the 2007 Agreement.



(N) Key Energy and Moncla Marine shall execute and deliver an Equipment Rental Agreement
regarding the Big Rig (defined below) in form and substance satisfactory to Key Energy and Moncla
Marine.



1.5 Delivery of Assets; Removal of Property.



(A) At the Effective Time, the Assets shall be deemed delivered to Purchaser at their then
current locations. Purchaser shall remove the Assets from any yards retained by Seller, other than
the Breaux Bridge Yard, at its sole expense as soon as practical after the Effective Time, but in
no event later than sixty (60) days after the Effective Time. As to any Assets located on yards
retained by Seller, other than the Breaux Bridge Yard, Seller shall use reasonable efforts to
safeguard the Assets until they are removed by Purchaser, but not in excess of sixty (60) days
after the Effective Time.




(B) Seller’s rights to continued use of the Breaux Bridge Yard is set forth in Section 8.4.



1.6 Redocumentation of Vessels.



Immediately, but in no event later than five (5) business days following the Effective Time,
Moncla Marine shall file all required Coast Guard form bills of sale, applications for
redocumentation, evidence of citizenship and other documentation in order to evidence the transfer
of ownership of any Marine Assets constituting documented vessels from Key Marine to Moncla Marine.
Key Marine has previously furnished to Moncla Marine all documentation evidencing any mergers by
any subsidiaries or predecessors of Key Marine on or after the
acquisition of the Companies by Key Energy pursuant to the 2007 Agreement. Moncla Marine
shall provide evidence to Seller of any communications from the Coast Guard and shall provide
evidence of the redocumentation of such vessels in Moncla Marine’s name, as soon as completed.


 


6









 





1.7 No Representation or Warranty as to Condition.



PURCHASER ACKNOWLEDGES THAT THE ASSETS HAVE BEEN USED FOR OIL AND GAS EXPLORATION, DRILLING,
PRODUCING, TREATING AND TRANSPORTATION OPERATIONS, RELATED OIL FIELD OPERATION AND POSSIBLY THE
STORAGE AND DISPOSAL OF WASTE MATERIALS INCIDENTAL TO, OR OCCURRING IN CONNECTION WITH, SUCH
OPERATIONS AND THAT PHYSICAL CHANGES TO THE ASSETS MAY HAVE OCCURRED AS A RESULT OF SUCH USES.
ADDITIONALLY, PURCHASER ACKNOWLEDGES THAT THE ASSETS MAY CONTAIN ASBESTOS, HAZARDOUS SUBSTANCES, OR
NATURALLY OCCURRING RADIOACTIVE MATERIAL (“NORM”). NORM MAY AFFIX OR ATTACH ITSELF TO THE INSIDE
OF MATERIALS AND EQUIPMENT AS SCALE OR IN OTHER FORMS; MATERIALS AND EQUIPMENT INCLUDED IN THE
ASSETS MAY CONTAIN NORM, AND NORM CONTAINING MATERIAL MAY HAVE BEEN BURIED OR OTHERWISE DISPOSED ON
THE ASSETS. PURCHASER ACKNOWLEDGES THAT SPECIAL PROCEDURES MAY BE REQUIRED FOR REMEDIATING,
REMOVING, TRANSPORTING AND DISPOSING OF ASBESTOS, NORM, HAZARDOUS SUBSTANCES AND OTHER MATERIALS
FROM THE ASSETS. WITH RESPECT TO THE PHYSICAL CONDITION OF THE ASSETS, PURCHASER SHALL CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY



 


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THIS AGREEMENT ON THE BASIS OF PURCHASER’S OWN INVESTIGATION AND DUE DILIGENCE OF THE PHYSICAL
CONDITION OF THE ASSETS, INCLUDING ENVIRONMENTAL CONDITIONS, AND PURCHASER SHALL ACCEPT THE ASSETS
INCLUSIVE OF ANY ADVERSE ENVIRONMENTAL CONDITION PRESENTLY EXISTING, WHETHER KNOWN OR UNKNOWN.



PURCHASER UNDERSTANDS, AGREES AND ACCEPTS THAT THE ASSETS ARE BEING SOLD AND CONVEYED “AS IS,”
“WHERE IS,” “WITH ALL FAULTS” THAT MAY EXIST AS OF THE EFFECTIVE TIME, AND WITH ANY AND ALL LATENT
AND PATENT DEFECTS, WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY BY SELLER OR ITS
AFFILIATES; AND PURCHASER HEREBY WAIVES ANY IMPLIED COVENANTS. SELLER SPECIFICALLY DISCLAIMS ANY
WARRANTIES, WHETHER WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF HABITABILITY,
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND ANY OTHER WARRANTIES WHICH MIGHT OTHERWISE
BE IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER (AND/OR ITS AFFILIATES) HAVE
NOT MADE AND DO NOT HEREBY MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE ASSETS, THEIR CONDITION, THEIR COMPLIANCE WITH
ENVIRONMENTAL LAWS OR OTHER LAWS, THE MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, OR
MARKETABILITY OF THE ASSETS, INCOME TO BE DERIVED THEREFROM OR EXPENSES TO BE INCURRED WITH RESPECT
THERETO, THE OBLIGATIONS,
RESPONSIBILITIES OR LIABILITIES OF THE OWNER THEREOF, OR ANY OTHER MATTER OR THING RELATING TO
OR AFFECTING THE ASSETS, AND SELLER AND ITS AFFILIATES HEREBY DISCLAIM AND RENOUNCE ANY OTHER
REPRESENTATION OR WARRANTY.


 


8









 





TO THE EXTENT APPLICABLE TO THE ASSETS OR ANY PORTION THEREOF, PURCHASER HEREBY VOLUNTARILY
WAIVES THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT, CHAPTER 17, SUBCHAPTER E,
SECTIONS 17.41 THROUGH 17.63, INCLUSIVE (OTHER THAN SECTION 17.555, WHICH IS NOT WAIVED), TEX. BUS.
& COM. CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS, AND PURCHASER EXPRESSLY
WAIVES THE WARRANTY OF FITNESS FOR INTENDED PURPOSES OR GUARANTY AGAINST HIDDEN OR LATENT
REDHIBITORY VICES UNDER LOUISIANA LAW, INCLUDING LOUISIANA CIVIL CODE ARTICLES 2520 THROUGH 2548
AND THE WARRANTY IMPOSED BY LOUISIANA CIVIL CODE ARTICLES 2476, AND WAIVES ALL RIGHTS IN
REDHIBITION PURSUANT TO LOUISIANA CIVIL CODE ARTICLES 2420, ET SEQ. PURCHASER ACKNOWLEDGES THAT
THIS EXPRESS WAIVER SHALL BE CONSIDERED A MATERIAL AND INTEGRAL PART OF THIS AGREEMENT AND THE
CONSIDERATION THEREOF; PURCHASER FURTHER ACKNOWLEDGES THAT THIS WAIVER HAS BEEN BROUGHT TO THE
ATTENTION OF PURCHASER AND EXPLAINED IN DETAIL AND THAT PURCHASER HAS VOLUNTARILY AND KNOWINGLY
CONSENTED TO THIS WAIVER OF WARRANTY OF FITNESS AND/OR WARRANTY AGAINST REDHIBITORY VICES AND
DEFECTS FOR THE



 


9









 






ASSETS. PURCHASER ACKNOWLEDGES THAT THE WAIVERS IN THIS AGREEMENT ARE CONSPICUOUS. IN ORDER
TO EVIDENCE ITS ABILITY TO GRANT SUCH WAIVER, PURCHASER HEREBY REPRESENTS AND WARRANTS TO SELLER
THAT IT (i) IS IN THE BUSINESS OF SEEKING OR ACQUIRING, BY PURCHASE OR LEASE, GOODS OR SERVICES FOR
COMMERCIAL OR BUSINESS USE (ii) HAS CONSULTED WITH AN ATTORNEY OF PURCHASER’S OWN CHOOSING; (iii)
HAS KNOWLEDGE AND EXPERIENCE IN THE FINANCIAL, BUSINESS AND OIL AND GAS SERVICE MATTERS THAT ENABLE
IT TO EVALUATE THE MERITS AND RISKS OF THE TRANSACTIONS CONTEMPLATED HEREBY; (iv) IS NOT IN A
SIGNIFICANTLY DISPARATE BARGAINING POSITION; AND (v) UNDERSTANDS THAT THIS WAIVER IS A MATERIAL AND
INTEGRAL PART OF THIS AGREEMENT AND THE CONSIDERATION THEREOF AND THAT SELLER IN DETERMINING TO
PROCEED WITH ENTERING INTO THIS AGREEMENT, HAS EXPRESSLY RELIED ON THIS WAIVER. IN ADDITION,
PURCHASER WAIVES ITS RIGHTS UNDER ALL OTHER CONSUMER PROTECTION STATUTES APPLICABLE TO THIS
TRANSACTION THAT MAY BE WAIVED BY THE PARTIES.



1.8 Post Closing Liabilities.



At the Effective Time, Purchaser shall assume, and thereafter pay, discharge, perform or
otherwise satisfy in accordance with their respective terms (A) only those liabilities and
obligations of the Seller that accrue after the Effective Time under the Assumed Contracts and
Credits, (B) Purchaser’s obligations under the other agreements or instruments to be executed and
delivered by Purchaser at the Closing, and (C) all obligations and liabilities arising
from the ownership or operation of the Assets by Purchaser after the Effective Time (the
“Post-Closing Liabilities”). The Purchaser’s obligations under this Section 1.8 shall not be
subject to offset or reduction for any reason.


 


10









 





1.9 Excluded Liabilities.



Seller shall pay, discharge, perform or otherwise satisfy in accordance with their respective
terms (A) all of Seller’s liabilities and obligations that accrue before the Effective Time under
the Assumed Contracts and Credits, (B) Seller’s obligations under the other agreements or
instruments to be executed and delivered by Seller at the Closing, and (C) all obligations and
liabilities arising from the ownership or operation of the Assets prior to the Effective Time,
other than (i) any credits due to Phoenix Exploration Company, (ii) the Post-Closing Liabilities,
and (iii) any liabilities or obligations for which Purchaser or an Original Seller or 4M is
obligated to indemnify Seller under the terms of the 2007 Agreement (the “Excluded Liabilities”).
To the extent, if any, that any liability or obligation might be partly a Post-Closing Liability
and partly an Excluded Liability, the apportionment of such liability or obligation shall be
determined pursuant to equitable principles. The Seller’s obligations under this Section 1.9 shall
not be subject to offset or reduction for any reason.



1.10  Allocation of Purchase Price.



(A) Seller and Purchaser recognize that the sale of the Assets contemplated hereby is an
applicable asset acquisition and that the Purchase Price will be allocated among the Assets for tax
purposes in a manner consistent with section 1060 of the Internal Revenue Code and the Treasury
regulations promulgated thereunder.



(B) The parties hereto agree that the Purchase Price to be paid for the Assets shall be
allocated in accordance with Exhibits 1.1(A) and (B). Purchaser and Seller agree that



 


11









 






the allocation of the Purchase Price to the categories of assets set forth on Exhibits 1.1(A)
and (B) reflects arms-length negotiations between the parties hereto. The allocation reflected on
Exhibits 1.1(A) and (B) shall be binding on Purchaser and Seller for United States federal income
tax purposes in accordance with Section 1060 of the Code and state income tax purposes and shall be
consistently reflected by Purchaser and Seller on their respective United States and state income
tax returns. Purchaser and Seller agree to cooperate in good faith in the completion and filing of
United States income tax Form 8594 in accordance with this Section 1.10.



1.11 Consents to Certain Assignments.



(A) Notwithstanding anything in this Agreement to the contrary, this Agreement and the other
agreements and instruments to be executed and delivered in connection herewith shall not constitute
an agreement to transfer or assign any asset, permit, claim or right or any benefit arising
thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a
third party, would constitute a breach or other contravention under any agreement or Law to which
the Seller is a party or by which it is bound, or would in any way adversely affect the rights of
the Seller or, upon transfer, the Purchaser under such asset, permit, claim or right (each, a
“Non-Assignable Asset”).



(B) Seller shall use its commercially reasonable efforts to obtain all consents or waivers
required to transfer or assign any Non-Assignable Asset (the “Assignment Consents”) without any
conditions to such transfer or changes or modifications of terms thereunder.



 


12









 





(C) Notwithstanding the foregoing, in the event that Seller is unable to obtain any Assignment
Consent prior to the Closing, Seller shall use commercially reasonable efforts to obtain such
Assignment Consent as soon as practicable after the Closing and Purchaser shall use
commercially reasonable efforts to cooperate and assist the Seller in obtaining such
Assignment Consents. Neither Purchaser nor Seller shall be required to pay any cash consideration
to any third party in order to obtain an Assignment Consent. Until such Assignment Consent shall
have been obtained, to the extent permitted by the terms and conditions of the Non-Assignable
Asset, the Seller shall effect an alternate arrangement, in the form of a subcontract, sublease or
other arrangement reasonably satisfactory to the Buyer, that results in the Buyer receiving the
benefits of, and bearing the ordinary course costs, liabilities and other obligations with respect
to, such Non-Assignable Asset.



1.12 Transfer of Telephone Lines, Website, and Logos.



Subject to the provisions of Section 11.2, at the Closing, Seller shall transfer to Purchaser
whatever rights it may hold, without any warranty whatsoever, to the telephone number
“888-2MONCLA,” to any cell phone number that was assigned to any Covered Available Employee
(defined below) by any of the Companies prior to their acquisition by Key Energy pursuant to the
2007 Agreement, to the website and website name www.moncla.com, and to the logos utilized by any of
the Companies prior to their acquisition by Key Energy pursuant to the 2007 Agreement. Purchaser
shall prepare and submit for approval by Seller any documentation requested to effect such
transfers and Seller shall reasonably cooperate with Purchaser to effect such transfers, without
the obligation to make any financial or contractual accommodation.



1.13 Use of Name.



Seller releases any restrictions against use of the name “Moncla” it obtained pursuant to the
terms of the 2007 Agreement.


 


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ARTICLE II

REPRESENTATIONS AND WARRANTIES OF SELLER




Seller represents and warrants to Purchaser as set forth in this Article II. For purposes of
this Article II, the term “Seller” shall include each Seller and only those predecessors in
interest of each Seller with respect to the ownership of the Assets after the acquisition of the
Companies pursuant to the 2007 Agreement.



2.1 Existence and Power.



(A) Key Energy is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Texas and Key Marine is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of Delaware and is
qualified to do business in the State of Texas. Seller has heretofore delivered to Purchaser true
and complete copies of Seller’s Certificates of Formation and Regulations or Limited Liability
Company Agreement, as applicable, as currently in effect.



(B) Key Marine is an “eligible owner” within the meaning of 46 U.S.C. §12103(b).



2.2 Authorization.



(A) The execution, delivery and performance by Seller of this Agreement and the other
documents to be executed and delivered pursuant hereto and the consummation by Seller of the
transactions contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency, official or authority.



(B) Seller has all requisite power and authority to execute and deliver this Agreement and the
other documents to be executed and delivered pursuant hereto and to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the other documents to be executed



 


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and delivered pursuant hereto by Seller and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action, and no other action on the part of Seller
is necessary to authorize this Agreement or the other documents to be executed and delivered
pursuant hereto or to consummate the transactions contemplated hereby. This Agreement and the
other documents to be executed and delivered pursuant hereto have been duly executed and delivered
by Seller and constitute the valid and legally binding obligations of Seller enforceable against
Seller in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability affecting creditors’
rights and general equitable principles.



2.3 Non-Contravention.



The execution, delivery and performance by Seller of this Agreement and the other documents to
be executed and delivered pursuant hereto and the consummation by Seller of the transactions
contemplated hereby do not and will not:



(A) contravene or conflict with the Certificate of Formation or Regulations or Limited
Liability Company Agreement, as applicable, of Seller;



(B) contravene or conflict with or constitute a violation of any provision of law, regulation,
judgment, injunction, order or decree binding upon or applicable to Seller;



(C) conflict with, result in any breach of, constitute a default (or an event that, with
notice or lapse of time or both, would become a default) under, or require any consent of any
person pursuant to, any material contract or agreement to which the Seller is a party or any
contract or agreement that is part of the Assets;



(D) require notice to or consent of any Governmental Authority; or


 


15









 





(E) result in the imposition or creation of any Encumbrance other than a Permitted Encumbrance
upon or with respect to any of the Assets.



2.4 Assets.



Except pursuant to intercompany reorganizations pursuant to which the Sellers were the
surviving entities, and all of which entities were direct or indirect subsidiaries of Key Energy
Services, Inc., neither Seller has transferred any Asset or any interest in any Asset, or otherwise
executed, suffered, increased, or incurred any Encumbrance on any Asset after the acquisition of
the Companies by Seller pursuant to the 2007 Agreement, other than Permitted Encumbrances and
Encumbrances that will be discharged at the Closing.



2.5 No Proceedings. There is no Action by or against Seller, or to the Knowledge of the
Seller, threatened against Seller in respect of the Assets, the Post-Closing Liabilities or the
transactions contemplated thereby or that would reasonably be expected to affect the legality,
validity or enforceability of this Agreement or any other agreement or instrument to be executed in
connection herewith or the consummation of the transactions contemplated hereby or thereby.



2.6 Employee Plans. Seller and its ERISA Affiliates: (A) do not maintain or contribute
to, and at no time have maintained or contributed to, any plan or arrangement subject to Title IV
of ERISA or Section 412 of the Code and (B) are not and have never been obligated to contribute to
any “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.



2.7 Labor Matters. Seller is not a party to any labor or collective bargaining contract
that pertains to any of the Available Employees (as defined below). To the Knowledge of the
Seller, there are no organizing activities or collective bargaining arrangements pending or under
discussion with any labor organization concerning any of the Available Employees. There
is no labor strike, slowdown, stoppage or lockout pending, or, to the Knowledge of Seller,
threatened against or affecting the Assets.


 


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2.8 Environmental Matters.



There are no Claims pursuant to any Environmental Law pending or, to the Knowledge of the
Seller, threatened against the Seller in connection with the ownership or use of the Assets. No
Action is pending or, to the Knowledge of the Seller, threatened to revoke, deny, condition or
limit the renewal of any Environmental Permit that Seller may hold with regard to the Assets.



2.9 Fees.



No investment banker, broker, financial advisor, finder or other intermediary who might be
entitled to any fee or commission upon consummation of the transactions contemplated by this
Agreement has been retained by or authorized to act on behalf of Seller.



ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PURCHASER




Purchaser represents and warrants to Seller that:



3.1  Organization and Existence.



Moncla Companies is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Texas and is qualified to do business in the State of
Louisiana. Moncla Marine is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Louisiana and is qualified to do business in the State
of Texas. Purchaser has heretofore delivered to Seller true and complete copies of Purchaser’s
Articles of Organization and Certificate of Formation and Operating Agreement and Company
Agreement, as applicable, as currently in effect.


 


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3.2 Authorization.



(A) The execution, delivery and performance by Purchaser of this Agreement and the other
documents to be executed and delivered pursuant hereto and the consummation by Purchaser of the
transactions contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency, official or authority, other than filings with respect to vessels with
the United States Coast Guard or appropriate Louisiana or Texas Governmental Authorities.



(B) Purchaser has all requisite power and authority to execute and deliver this Agreement and
the other documents to be executed and delivered pursuant hereto and to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby. The execution,
delivery and performance by Purchaser of this Agreement and the other documents to be executed and
delivered pursuant hereto and the consummation by Purchaser of the transactions contemplated hereby
have been duly authorized by all necessary action, and no other action on the part of Purchaser is
necessary to authorize this Agreement or the other documents to be executed and delivered pursuant
hereto or to consummate the transactions contemplated hereby. This Agreement and the other
documents to be executed and delivered pursuant hereto have been duly executed and delivered by
Purchaser and constitute the valid and legally binding obligations of Purchaser enforceable against
Purchaser in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability affecting creditors’
rights and general equitable principles.


 


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3.3 Non-Contravention.



The execution, delivery and performance by Purchaser of this Agreement and the other documents
to be executed and delivered pursuant hereto and the consummation by Purchaser of the transactions
contemplated hereby do not and will not:



(A) contravene or conflict with the Articles of Organization, Certificate of Formation,
Operating Agreement, or Company Agreement, as applicable, of Purchaser, or



(B) contravene or conflict with any provision of any law, regulation, judgment, injunction,
order or decree binding upon or applicable to Purchaser.



3.4 Fees.



There is no investment banker, broker, finder or other intermediary which has been retained by
or is authorized to act on behalf of Purchaser who might be entitled to any fee or commission from
Seller upon consummation of the transactions contemplated by this Agreement.



3.5 Inspections.



Purchaser is familiar with the Assets, has had the opportunity to inspect the Assets, and is
not relying upon any warranty of Seller as to their condition. Purchaser expressly acknowledges
the disclaimers of warranty of Section 1.7 hereof and the disclaimers of the Bills of Sale,
Assignments, and Conveyances, Coast Guard Bills of Sale, and Breaux Bridge Lease and attached form
of Act of Sale, delivered at the Closing.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF ORIGINAL SELLERS AND 4M




Original Sellers and 4M severally represent and warrant to Seller that:


 


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4.1 Deferred Note.



No Original Seller has assigned, conveyed or otherwise transferred, or has granted a security
interest or otherwise encumbered, his or its interest in the Deferred Note or any payment pursuant
thereto. All interest in the Deferred Note are owned by Original Sellers and 4M in the proportions
set forth on Exhibit 4.1.



4.2 Interest in Purchaser.



Each Included Party has a direct, financial interest in Purchaser. Pursuant to the Flow of
Funds Memo and Section 11.12 each Included Party has directed Payment Agent to utilize the payments
to be made by Key Energy under the Deferred Note as a partial payment of the Purchase Price of the
Assets by Purchaser. Each Included Party acknowledges that it will directly benefit by the
application of such funds.



4.3 Payment Agent.



Leon Charles Moncla, Jr. has not resigned as Payment Agent under the 2007 Agreement and no
other person has been appointed as Payment Agent by Original Sellers or 4M.



4.4 4M



4M is a limited partnership duly organized, validly existing and in good standing under the
laws of the State of Texas. 4M has heretofore delivered to Seller true and complete copies of
Purchaser’s Certificate of Formation and Limited Partnership Agreement. The execution, delivery
and performance by 4M of this Agreement and the other documents to be executed and delivered
pursuant hereto and the consummation by 4M of the transactions contemplated hereby have been duly
authorized by all necessary action, and no other action on the part of 4M is necessary to authorize
this Agreement or the other documents to be executed and delivered pursuant hereto or to consummate
the transactions contemplated hereby. This
Agreement and the other documents to be executed and delivered pursuant hereto have been duly
executed and delivered by 4M and constitute the valid and legally binding obligations of 4M
enforceable against 4M in accordance with their respective terms.


 


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ARTICLE V

RESTRICTIVE COVENANTS




5.1 Restriction on Use of Big Rig.



In consideration of the agreement of Seller to sell the Assets to Purchaser and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed,
Purchaser and Original Sellers and 4M severally, and not jointly, covenant and agree that during
the period from the Effective Time until the fifth (5th) anniversary of the Effective Time (the
“Covered Term”), neither Purchaser nor any Original Seller nor 4M nor any of their respective
Affiliates nor any charterers or subcharterers of asset no. 0091003, as identified on Exhibit
1.1(B) (the “Big Rig”) nor any other party who acquires rights in the Big Rig will enter into
drilling contracts, charter out agreements, or otherwise utilize or permit anyone else to utilize
the Big Rig under any agreement or arrangement whatsoever (collectively “Contracts”) on any land
surface within the United States of America (excluding Alaska and Hawaii) in competition with
Seller or any of its Affiliates, or for work under any such Contract. The restrictions of this
Section 5.1 shall not apply to (a) utilization of the Big Rig on land locations that can only be
accessed by use of a marine barge; (b) utilization of the Big Rig on lands owned or leased by
Purchaser for purposes of drilling a training well. Purchaser and Original Sellers and 4M covenant
and agree to make the provisions of this Section 5.1 a term and condition of any future sales or
Contracts for use of the Big Rig that such terms and conditions shall be binding on all future
owners and charterers of the Big Rig, and that Seller shall be designated as a third party
beneficiary of such terms and conditions.


 


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5.2 Purchaser Restrictions.



In recognition of, among other things, the nature and scope of the business and goodwill of
Seller, the substantial impairment of value to Seller if Purchaser were to compete with Seller, the
consideration being paid for this covenant and the reasonable restrictions and limitations imposed
hereby, Purchaser agrees that from the Effective Time until the third (3rd) anniversary of the
Effective Time (the “Restricted Period”), Purchaser shall not, directly or indirectly:



(A) Except for a Permitted Business, enter into any competitive endeavors, nor undertake any
commercial activity, which competes with any Traditional Business within the Geographic Area, which
are all of the locations in which Seller is carrying on the Traditional Business which prohibition
includes, without limitation: (i) drilling, completing, reworking, maintaining and servicing oil,
gas or other mineral wells with truck or trailer mounted drilling or workover rigs; (ii) waste
disposal in connection with drilling, completing, reworking, maintaining and servicing oil, gas or
other mineral wells with truck or trailer mounted drilling or workover rigs; (iii) leasing, renting
or seeking to lease or rent equipment of types provided by the Traditional Business; or



(B) Except with respect to services which constitute a Permitted Business, solicit customers
of the Traditional Business for the purpose of selling or providing any service described in
sub-paragraph A above within the Geographic Area; or



(C) Employ or solicit, or receive or accept the performance of services by any employee of
Seller or encourage or induce any such person to terminate his or her employment with Seller for
the purpose of employing him in the Geographic Area; provided, however, that the foregoing shall
not apply to (a) any such employee whose employment has terminated with
Seller prior to the commencement of such solicitation, (b) generalized searches for employees
by use of advertisements in the media which are not targeted at employees of Seller, or (c) offers
to Available Employees within the Permitted Offer Period unless otherwise covered by subpart (a)
above.


 


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(D) Except for a Permitted Business, be an owner (except for passive investments of not more
than one percent (1%) of the outstanding membership interests of, or any other equity interest in,
any company or entity listed or traded on a national securities exchange or in an over-the-counter
securities market), agent or representative of any person in the Geographic Area which directly
competes with any of the Traditional Businesses.



5.3 Seller Restrictions.



In recognition of, among other things, the nature and scope of the business and goodwill of
Purchaser, the substantial impairment of value to Purchaser if Seller were to compete with
Purchaser, the consideration being paid for this covenant and the reasonable restrictions and
limitations imposed hereby, Seller agrees that, except as set forth in Section 5.4, during the
Restricted Period, Seller and its Affiliates shall not, directly or indirectly:



(A) Enter into any competitive endeavor, nor undertake any commercial activity, which
constitutes a part of the Restricted Activities within the Geographic Area or which constitutes a
part of the Other Restricted Activities within the South Louisiana Area;



(B) Solicit customers for the purpose of selling or providing any services which constitute a
part of the Restricted Activities within the Geographic Area or which constitutes a part of the
Other Restricted Activities within the South Louisiana Area; or


 


23









 





(C) Employ or solicit, or receive or accept the performance of services by any employee of
Purchaser, nor encourage or induce any such person to terminate his or her
employment with Purchaser for the purpose of employing him in the Geographic Area; provided,
however, that the foregoing shall not apply to (a) any such employee whose employment has
terminated with Purchaser prior to the commencement of such solicitation or (b) generalized
searches for employees by use of advertisements in the media which are not targeted at employees of
Purchaser; or



(D) Be an owner (except for passive investments of not more than one percent (1%) of the
outstanding membership interests of, or any other equity interest in, any company or entity listed
or traded on a national securities exchange or in an over-the-counter securities market),
Affiliate, agent, or representative of any person in the Geographic Area which directly competes
with any Restricted Activities or of any person in the South Louisiana Area which directly competes
with any of the Other Restricted Activities.



5.4 Seller Permitted Activities.



Notwithstanding the provisions of this ARTICLE V:



(A) Seller and their respective Affiliates shall be permitted to own and engage in one or more
of the Restricted Activities or Other Restricted Activities during the Restricted Period if Seller
or any of their respective Affiliates acquire, or are combined with or into, another Person that
engages in such Restricted Activities or Other Restricted Activities in a business combination
transaction involving significant assets or lines of business compared to the assets used in such
Restricted Activities or Other Restricted Activities to the extent such assets are owned or
operated in the Geographic Area or South Louisiana, as applicable; provided, however, that neither
Seller nor its Affiliates shall invest capital in such Restricted Activities or other Restricted
Activities in an amount in excess of which is necessary to operate the Restricted Activities or
Other Restricted Activities in the ordinary course of business to the extent such



 


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assets were being operated prior to the business combination transaction; and provided
further, that within one year from such acquisition Seller shall either (i) move such assets out of
the Geographic Area, or (ii) sell or otherwise dispose of such assets, or (iii) agree that the
restrictions, applicable to Purchaser under Section 5.2 and any similar restrictions applicable to
any Original Seller pursuant to any agreement with either Seller shall also terminate. In the
event that Seller decides to sell such assets, it agrees to allow Purchaser a right of first offer
to purchase such assets.



(B) The restrictions applicable to Seller shall terminate in the event that the direct or
ultimate parent of either Seller is acquired in a business combination transaction regardless of
the legal structure such acquisition takes.



(C) In the event that the restrictions applicable to Seller terminate as set forth in Section
5.4(B) the restrictions applicable to Purchaser under Section 5.2 and any similar restrictions
applicable to any Original Seller pursuant to any agreement with either Seller shall also
terminate.



5.5 Consideration.



The consideration for this agreement by Purchaser and Original Sellers and 4M is the agreement
by Seller to sell the Assets at the price and on the terms set forth in the Agreement and the
agreement by Seller in Section 5.3.



5.6 Reasonable Covenants.



Seller, Purchaser, Original Sellers, and 4M acknowledge that the covenants contained in this
ARTICLE V are made ancillary to the Assets by Seller, are reasonably necessary to protect Seller’s
and Purchaser’s business and the trade secrets and goodwill thereof, was considered by Seller in
its agreement to sell the Assets and Purchaser in its agreement to



 


25









 






purchase the Assets in the computation of the Purchase Price, and do not impose an undue or
unreasonable hardship upon Seller, Purchaser, any Original Seller or 4M. Seller, Purchaser,
Original Sellers, and 4M acknowledge further that they consider the covenants contained herein to
be fundamental conditions for the consummation of the transactions contemplated by this Agreement,
and that they would not consummate such transactions in the absence of such covenants. Purchaser
and Seller further acknowledge that Seller and Purchaser are on “equal footing,” the provisions of
this Agreement are fair to both Purchaser and Seller in all respects, both benefited from this
Agreement, and the transactions contemplated hereby, and each of Seller and Purchaser had counsel
to review this Agreement and the other documents executed pursuant thereto.



5.7 Severability.



Purchaser and Original Sellers and 4M and Seller agree that it is their intention that if any
portion of this ARTICLE V is found by a court of competent jurisdiction to be unenforceable,
including, without limitation, as to the duration, geographic area or scope of activities covered
by the covenants contained herein, this ARTICLE V shall be reformed by the court to give Seller and
Purchaser the maximum protection permitted by law and, as reformed, shall be agreed to by the
parties and enforced by the court prospectively. If any provision of this ARTICLE V shall be held
by any court of competent jurisdiction to be illegal, void or unenforceable, and shall not be
reformed as set forth in the immediately preceding sentence, such provision shall be of no force or
effect, but the illegality and unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this ARTICLE V.




 


26











 




ARTICLE VI

AVAILABLE EMPLOYEES




6.1 Available Employees.



Seller has furnished to Buyer a list of all employees of Seller who are available for
employment by Purchaser (the “Available Employees”).



6.2 Employment; Benefits.



(A) Seller shall provide to Purchaser, to the extent permitted by applicable law, reasonable
access to the Available Employees, including their personnel files other than any medical files or
records for the purpose of preparing for and conducting interviews with all Available Employees;
provided, however, that nothing herein shall be deemed to obligate Purchaser to offer employment to
all or any of the Available Employees of any fixed term or duration or upon terms or conditions
other than Purchaser may establish pursuant to individual offers of employment, such offers to be
made on an “at-will” basis. Purchaser may, in its sole discretion, offer employment to all or any
of the Available Employees, subject to such Available Employees meeting eligibility requirements
under Purchaser’s standard requirements.



(B) Seller shall terminate all of its Available Employees to whom Purchaser has made an offer
of employment as of the Effective Time who have accepted such offer of employment (the “Offerees”).
Seller shall pay the Offerees for accrued and unused vacation, holiday and sick pay entitlements,
if any, in respect of the period prior to the Effective Time. Purchaser shall have no liability or
responsibility for accrued vacation, sick leave, comp time or other leave, or severance benefits,
if any, owed by Seller to its Employees as of the Effective Time, all of which obligations are
being retained by Seller.


 


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(C) Purchaser shall not assume or be responsible for any liability or obligation under any of
the Employee Plans. Without limiting the generality of the foregoing, medical,
dental, vision, travel accident, accidental death and dismemberment, and life insurance
expenses, if any, incurred by Seller’s Employees and their beneficiaries and dependents on or
before the Effective Time, pursuant to any Employee Plan, irrespective of the time such claims are
presented, shall be the responsibility of Seller. Short-term, long-term and extended disability
benefits, if any, payable to Offerees and their beneficiaries and dependents who became disabled
before the Effective Time are the responsibility of Seller and shall be paid directly by Seller or
its insurance carrier to such Employees and their dependents. If any Available Employee is
terminated from employment on or before the Effective Time by Seller, any obligations arising out
of such termination, including severance, accrued vacation pay, COBRA obligations, employment
discrimination complaints, unfair labor practice charges, grievance under any collective bargaining
agreement, wrongful termination and related tort claims and breach of contract claims, if any,
shall be the sole responsibility of Seller. Seller will be responsible for all obligations, if
any, to current or former employees (and their dependents) who are entitled to elect COBRA
continuation coverage prior to or as of the Effective Time, and to any current or former employees
(and their dependents), if any, who become so entitled due to the consummation of the transaction
contemplated herein. Purchaser will be responsible for all obligations to the Offerees (and their
dependents) who become entitled to elect COBRA continuation coverage after the Effective Time for
reasons other than the consummation of the transaction contemplated by this Agreement. Nothing in
this ARTICLE VI shall obligate Seller for any liabilities or obligations for which Purchaser or an
Original Seller or 4M is obligated to indemnify Seller under the terms of the 2007 Agreement.


 


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6.3 Retention Compensation.



For purposes of that certain Moncla Recognition and Retention Plan dated as of October 25,
2007, as amended (as amended, the “Plan”) all Available Employees covered under the Plan as of the
Effective Time who accept employment with Purchaser during the Permitted Offer Period (“Covered
Available Employees”) shall be deemed to have been involuntarily terminated and therefore
immediately vested with respect to the remaining payments under the Plan otherwise scheduled to be
made on the third anniversary of the Closing Date as such term is defined in the Plan (the “Plan
Closing Date”). These vested payments shall be paid to Covered Available Employees in accordance
with Plan terms. At the request of Purchaser, at the Closing, the Plan shall be revised,
substantially in the form of Exhibit 6.3 hereof, in order to provide that any Covered Available
Employee who is still employed by Purchaser on the third anniversary of the Plan Closing Date shall
be entitled to share in forfeited amounts under the Plan in accordance with Plan terms. LEON
CHARLES MONCLA, JR., BY HIS SIGNATURE BELOW, INDEMNIFIES SELLER AND SELLER’S AFFILIATES AND ALL OF
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND SHAREHOLDERS (HEREINAFTER COLLECTIVELY, “SELLER
INDEMNIFIED PARTIES” AND INDIVIDUALLY, “SELLER INDEMNIFIED PARTY”) AGAINST, AND AGREES TO DEFEND
AND HOLD THEM HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES (INCLUDING INCIDENTAL AND CONSEQUENTIAL
DAMAGES), LOSS, LIABILITIES, EXPENSES, ASSESSMENTS, CLAIMS, ACTIONS, SUITS, PROCEEDINGS, EMPLOYEE
BENEFIT CLAIMS, TAXES, PENALTIES, INTEREST, AWARDS, JUDGMENTS AND SETTLEMENTS (INCLUDING WITHOUT
LIMITATION, REASONABLE FEES AND EXPENSES OF INVESTIGATION AND


 


29









 




ESTABLISHING ANY SUCH LOSSES AND REASONABLE ATTORNEYS’ FEES AND EXPENSES) (COLLECTIVELY,
“LOSS”) INCURRED OR SUFFERED BY ANY SELLER INDEMNIFIED PARTY ARISING OUT OR RESULTING FROM THE
TREATMENT OF THE COVERED AVAILABLE EMPLOYEES UNDER THIS SECTION 6.3 OR THE AMENDMENT TO THE PLAN
SUBSTANTIALLY IN THE FORM OF EXHIBIT 6.3, WHETHER INVOLVING OR AFFECTING ANY COVERED AVAILABLE
EMPLOYEE OR ANY OTHER PERSON COVERED UNDER THE PLAN OR RELATED TO THE PLAN OTHER THAN AN EMPLOYEE
TERMINATED PRIOR TO THE EFFECTIVE TIME, INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY (EXPRESS
OR IMPLIED), BREACH OF CONTRACT, STRICT LIABILITY OR THE NEGLIGENCE OR FAULT OF ANY PERSON, PARTY,
OR ENTITY, AND IRRESPECTIVE OF WHETHER ANY SELLER INDEMNIFIED PARTY MAY BE ALLEGED OR PROVEN TO
HAVE BEEN NEGLIGENT (WHETHER SUCH NEGLIGENCE BE ACTIVE, PASSIVE, SOLE, JOINT, CONCURRENT,
COMPARATIVE OR CONTRIBUTING) OR OTHERWISE LEGALLY LIABLE (WITH OR WITHOUT FAULT OR WHETHER STRICTLY
LIABLE OR IN BREACH OF ANY WARRANTY). THE DEFENSE OF ALL SUCH CLAIMS AND ACTIONS SHALL BE
UNDERTAKEN BY LEON CHARLES MONCLA, JR. USING COUNSEL SELECTED BY HIM AND REASONABLY ACCEPTABLE TO
SELLER INDEMNIFIED PARTIES. SETTLEMENTS OF EACH SUCH CLAIM SHALL REQUIRE THE APPROVAL OF SELLER
INDEMNIFIED PARTIES, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD. THE INDEMNITY OBLIGATION OF
THIS SECTION 6.3 SHALL NOT BE SUBJECT TO ANY HURDLE AND SHALL REMAIN IN EFFECT
FOR A PERIOD EXPIRING THIRTY (30) DAYS AFTER THE EXPIRATION OF THE APPLICABLE STATUTE OF
LIMITATIONS.





 


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6.4 No Third Party Beneficiaries.



No provision of this Agreement shall create any third party beneficiary or other rights in any
employee or former employee (including any beneficiary or dependent thereof) of Seller in respect
of continued employment (or resumed employment) with Seller or with respect to any payments under
the Plan. No provision of this Agreement shall constitute a limitation on rights to amend, modify
or terminate after the Effective Time any such plans or arrangements of Seller.



ARTICLE VII

CERTAIN COVENANTS




7.1 Cooperation.



Purchaser and 4M and Original Sellers agree that in consideration of the transactions
contemplated by this Agreement, they will offer reasonable assistance to Seller, without the
obligation to make any financial or contractual accommodation, in connection with:



(A) Any claims, actions, suits, proceedings, employee benefit claims, employment claims, or
other disputes asserted against any Seller Indemnified Party or any of the Companies arising in
connection with any event or other matters occurring on or prior to the Effective Time;



(B) Any filings, reports, requests for information or other documentation to be made or filed
in connection with any Employee Plans or Benefit Arrangements (each as defined in the 2007
Agreement) that were maintained by one or more of the Companies at the time of the Closing under
the 2007 Agreement, and, in connection therewith, to furnish copies of all filings, reports, or
documentation in the possession or control of Purchaser or 4M or any Original Seller.


 


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7.2
Further Assurances.



Each of the parties shall use all commercially reasonable efforts to take, or cause to be
taken, all appropriate action to do, or cause to be done, all things necessary, proper or advisable
under applicable Law or otherwise to consummate and make effective the transactions contemplated by
this Agreement and the other agreements and instruments executed and delivered in connection
herewith as promptly as practicable, including, without limitation, to (i) obtain from Governmental
Authorities and other persons all consents, approvals, authorizations, qualifications and orders as
are necessary for the consummation of the transactions contemplated by this Agreement and (ii)
promptly make all necessary filings, and thereafter make any other required submissions, with
respect to this Agreement required under any applicable Law. Seller and Purchaser shall furnish to
each other all information required for any application or other filing to be made pursuant to the
rules and regulations of any applicable Law in connection with the transactions contemplated
hereby.



ARTICLE VIII

TRANSITION




8.1 Communications with Customers.



After the Closing, Purchaser and Seller shall communicate with existing clients of Seller
whose services depend upon use of the Assets to advise them that as of the Effective Time, services
will no longer be furnished pursuant to contracts and master service agreements with Seller and
that future services will be furnished by Purchaser. Seller and Purchaser shall cooperate in such
communications to avoid disruption to the continuing business of Seller and the prospective
business of Purchaser.


 


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8.2 Reimbursements.



Any taxes, rentals, charges, prepaid expenses, and other expenditures made or billed to Seller
relating to any of the Assets or services furnished by use of the Assets for periods on and after
the Effective Time shall be for the account of Purchaser and any such amounts paid by Seller shall
be reimbursed to Seller by Purchaser within thirty (30) days of Seller notifying Purchaser of such
amounts. Any taxes, rentals, charges, expenses, and other expenditures made or billed to Purchaser
relating to any of the Assets or services furnished by use of the Assets for periods before the
Effective Time shall be for the account of Seller and any such amounts paid by Purchaser shall be
reimbursed to Purchaser by Seller within thirty (30) days of Purchaser notifying Seller of such
amounts. Seller and Purchaser shall attempt to give reasonable notice prior to paying any amounts
provided in this Section. Neither Seller nor Purchaser shall be obligated to reimburse for any
payment that was in error or otherwise not a valid charge, or otherwise not due and payable.



8.3 Payments.



Any payments for services rendered by Seller for periods prior to the Effective Time shall be
for the account of Seller and any such amounts received by Purchaser shall be reimbursed to Seller
by Purchaser within thirty (30) days of receipt by Purchaser. Any payments for services rendered by
Purchaser for periods on and after the Effective Time shall be for the account of Purchaser and any
such amounts received by Seller shall be reimbursed to Purchaser by Seller within thirty (30) days
of receipt by Seller.


 


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8.4 Breaux Bridge Yard.



For such period as Seller utilizes the office building located at the Breaux Bridge Yard,
currently leased from General Electric Credit Corporation, Seller shall pay the rental for
the office building. Seller shall have non-exclusive occupancy of the Breaux Bridge Yard, as
acknowledged in the Breaux Bridge Lease, prior to the exercise by Purchaser of its option to
purchase the Breaux Bridge Yard (individually or by assignment to an Affiliate) and thereafter by
lease by Purchaser or its Affiliate to Seller pursuant to the terms of the Breaux Bridge Lease.



8.5 Big Rig.



Pursuant to a lease, to be in form and substance satisfactory to Seller and Purchaser, Seller
shall lease the Big Rig until Seller completes its current project for Sempra Midstream, Inc. in
Alabama. Purchaser will insure the Big Rig and will be responsible for all loss or damage to the
Big Rig, including any deductibles or self-insured retentions. Purchaser will cause its insurer to
name Seller as an additional insured, with waiver of subrogation. Seller will pay ONE THOUSAND AND
NO/100 DOLLARS ($1,000.00) per day for each day from the Effective Time through the date on which
it delivers the Big Rig to Purchaser either to Purchaser’s Lafayette facility or, if requested by
Purchaser, to a location in the Port of Mobile or the Port of New Orleans or through the date on
which the Big Rig is partially or totally damaged and cannot be utilized by Seller.



ARTICLE IX

SURVIVAL; INDEMNIFICATION




9.1 Survival.



The representations and warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection herewith shall survive the
Closing and shall expire eighteen (18) months after the Closing.


 


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9.2 Indemnification.



(A) Each Seller hereby jointly, severally, and in solido with the other Seller indemnifies
Purchaser and 4M and Original Sellers and all of their respective officers, directors,
employees and shareholders (hereinafter collectively, “Purchaser Indemnified Parties” and
individually, a “Purchaser Indemnified Party”) against, and agrees to defend and hold them harmless
from and against all Loss incurred or suffered by any Purchaser Indemnified Party arising out of or
resulting from (i) any breach of any representation or warranty, covenant or agreement made or to
be performed by Seller pursuant to this Agreement or (ii) any Excluded Liability; provided,
however, that except for a breach of the representations in Sections 2.1, 2.2 or 2.3,
Seller shall have no obligation to indemnify any Purchaser Indemnified Party with respect to any
Loss resulting from or arising out of the matters described in Section 9.2(A)(i) notice of which is
given to Seller more than eighteen (18) months after the Closing; provided,
further, that Seller shall have no obligation to indemnify any Purchaser Indemnified Party
until the total Loss incurred by one or more Purchaser Indemnified Parties exceeds a hurdle of
FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) in the aggregate and then only for Loss in excess of
such hurdle. The remedies set forth in this Section 9.2(A) shall be the exclusive remedies of the
Purchaser Indemnified Parties except that Purchaser Indemnified Parties reserve the right to
injunctive relief that may be available in the event of any breach by Seller of the provisions of
ARTICLE V hereof.



(B) Purchaser, each Original Seller and 4M severally, and not jointly, hereby indemnify the
Seller Indemnified Parties against, and agree to defend and hold them harmless from and against all
Loss incurred or suffered by any Seller Indemnified Party arising out of or resulting from any (i)
breach of any representation or warranty, covenant or agreement made or to be performed by
Purchaser or any Original Seller or 4M pursuant to this Agreement or (ii) any Post-Closing
Liability; provided however, that except for a breach of any representation in Sections
3.1, 3.2, 3.3, or 4.4, and except as set forth in Section 6.3, no Purchaser or Original


 


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Seller or 4M shall have an obligation to indemnify any Seller Indemnified Party with respect
to any Loss, resulting from or arising out of the matters described in Section 9.2(B)(i) notice of
which is given to Purchaser or Payment Agent on behalf of an Original Seller or 4M, as the case may
be, more than eighteen (18) months after the Closing; provided, further, that
except for a breach of any representation in Sections 3.1, 3.2, 3.3, or 4.4, and except as set
forth in Section 6.3, no Purchaser or Original Seller or 4M shall have an obligation to indemnify
any Seller Indemnified Party until the total Loss incurred by such Seller Indemnified Party
asserted against such Purchaser or Original Seller or 4M exceeds a hurdle of FIVE THOUSAND AND
NO/100 DOLLARS ($5,000.00) in the aggregate and then only for Loss in excess of such hurdle. The
remedies set forth in this Section 9.2(B) shall be the exclusive remedies of the Seller Indemnified
Parties except that Seller Indemnified Parties reserve the right to injunctive relief that may be
available in the event of any breach by Purchaser or any Original Seller of the provisions of
ARTICLE V hereof.



9.3 Indemnification Procedures.



(A) In order for a Purchaser Indemnified Party or Seller Indemnified Party (the “Indemnified
Party”) to be entitled to any indemnification provided for under this Agreement as a result of a
Loss or a Claim or demand made by any person against the Indemnified Party (a “Third Party Claim”),
such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought
(the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of
the Third Party Claim, describing in reasonable detail the facts giving rise to any claim for
indemnification hereunder, the amount or method of computation of the amount of such claim (if
known) and such other information with respect thereto as the Indemnifying Party may reasonably
request. The failure to provide such notice,
however, shall not release the Indemnifying Party from any of its obligations under this
Article IX except to the extent that the Indemnifying Party is prejudiced by such failure.


 


36









 





(B) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party
within thirty (30) days of receipt of notice from the Indemnified Party of the commencement of such
Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with
counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party.
If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party
shall have the right to employ separate counsel and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the Indemnified Party;
provided that if in the reasonable opinion of counsel for the Indemnified Party, there is a
conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying
Party shall be responsible for the reasonable fees and expenses of one counsel to such Indemnified
Party in connection with such defense. If the Indemnifying Party assumes the defense of any Third
Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and
make available to the Indemnifying Party all witnesses, pertinent records, materials and
information in the Indemnified Party’s possession or under the Indemnified Party’s control relating
thereto as is reasonably required by the Indemnifying Party. Whether or not the Indemnifying Party
assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability
with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge,
such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall
not be unreasonably withheld or delayed).


 


37









 





(C) In the event any Indemnified Party should have a claim against any Indemnifying Party
hereunder that does not involve a Third Party Claim being asserted against or sought to be
collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim
promptly to the Indemnifying Party, describing in reasonable detail the facts giving rise to any
claim for indemnification hereunder, the amount or method of computation of the amount of such
claim (if known) and such other information with respect thereto as the Indemnifying Party may
reasonably request. The failure to provide such notice, however, shall not release the
Indemnifying Party from any of its obligations under this ARTICLE IX except to the extent that the
Indemnifying Party is prejudiced by such failure. The Indemnified Party shall reasonably cooperate
and assist the Indemnifying Party in determining the validity of any claim for indemnity by the
Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall
include providing reasonable access to and copies of information, records and documents relating to
such matters, furnishing employees to assist in the investigation, defense and resolution of such
matters and providing legal and business assistance with respect to such matters.



ARTICLE X

CERTAIN DEFINITIONS




10.1

Certain Defined Terms. The following terms when used in this Agreement with their
initial letters capitalized shall have the meanings given to them in this Section 10.1:



(A) “Action” means any claim, action, suit, arbitration or proceeding by or before any
court, arbitrator or Governmental Authority.



(B) “Ancillary Equipment Rentals” means (A) the rental of oilfield service equipment
in connection with the oil, gas or other wells on localities over water or locations that
are accessible solely by way of water, and (B) the rental of oilfield service equipment other
than rentals of blowout preventors, shakers, light towers, hydraulic tongs, trailers, water
sewerage, rod tongs, forklifts, gas busters, or catch tanks in connection with land based drilling,
workover, or maintenance services.


 


38









 





(C) “Affiliate” means, with respect to any specified Person, any other person which
directly or indirectly through one or more intermediaries controls, or is controlled by, or is
under common control with, such specified Person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled by” and “under common
control with”), as used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise



(D) “Assumed Contracts and Credits” means the Master Service Contract dated as of
November 4, 2008, by and between Key Energy Services, Inc. and Bailey’s Catering LLC, the Service
Order Agreement dated January 25, 2008, by and between Key Marine Services, LLC and RigNet, Inc.,
the Suite License Agreement by and between Moncla Well Service, Inc. and Houston NFL Holdings, L.P.
together with any rentals or other amounts due thereunder, whether before or after the Effective
Time, the contract dated January 23, 2009 by and between Houston Livestock Show and Rodeo, Inc. and
Key Energy Services, Inc. for Suite 205 together with any rentals or other amounts due thereunder,
whether before or after the Effective Time, the Contract for Services effective as of March 1,
2007, by and between Moncla Marine, LLC and Data Technology Solution, and the credit owed to
Phoenix Exploration Company in the approximate amount of $126,854.18.


 


39









 





(E) “Claims” means all demands, claims, actions or causes of action, assessments,
encumbrances, complaints, directives, citations, information requests issued by government
authorities, legal proceedings, orders, notices of potential responsibility, damages or sanctions.



(F) “Code” means the Internal Revenue Code of 1986, as amended through the date
hereof.



(G) “Employee Plans” means all “employee benefit plans” within the meaning of Section
3(3) of ERISA, all other compensation and benefit plans, contracts, policies, agreements, programs
and arrangements of the Seller or any ERISA Affiliate of Seller (other than routine administrative
procedures) in which any of the Available Employees or their dependents participate as of the date
hereof, including all pension, profit sharing, savings and thrift, bonus, fringe benefit,
employment, change in control, stock bonus, stock option or other cash or equity-based incentive or
deferred compensation, severance pay and medical, disability, and life insurance plans, policies,
programs, agreements or arrangements.



(H) “Encumbrance” means any lien, pledge, claim, charge, mortgage, security interest
or other encumbrance, option, defect or other rights of any third Person of any nature whatsoever
or any contract to create any of the foregoing.



(I) “Environmental Laws” means any Laws of any Governmental Authority in effect prior
to or as of the date hereof relating to Hazardous Materials, pollution, natural resources or the
environment.



(J) “Environmental Permits” means all Permits required by any Environmental Law.


 


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(K) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



(L) “ERISA Affiliate” means each entity which is or has been treated as a single
employer with Seller for purposes of Section 414 of the Code or Section 4001(a)(14) of ERISA.



(M) “Geographic Area” refers to Acadia, Allen, Ascension, Assumption, Avoyelles, East
Baton Rouge, Beauregard, Bossier, Caddo, Calcasieu, Cameron, Evangeline, Iberia, Iberville,
Jefferson, Jefferson Davis, Lafayette, Lafourche, Orleans, Ouachita, Plaquemines, Pointe Coupee,
Rapides, St. Bernard, St. Charles, St. Landry, St. Martin, St. Mary, St. Tammany, Tangipahoa,
Terrebonne, and Vermilion Parishes, Louisiana, and the States of Texas, Mississippi, Alabama and
Florida.



(N) “Governmental Authority” means (i) any United States, federal, state or local
governmental, quasi-governmental, regulatory or administrative authority, agency or commission or
any judicial or arbitral body, or (ii) any supervisory authority.



(O) “Included Party” means all Original Sellers other than Bipin A. Pandya, Rhonda
Moncla, Thomas Sandahl, Cain Moncla, Andrew Moncla, and Kenneth Rothstein.



(P) “Knowledge of Seller” means the current, actual, conscious knowledge of W. Newton
Wilson, III, Kimberly Frye, Kim Clarke, Marshall Dodson, Lesa Carter, or Jamie Fishman.



(Q) “Law” means any statute, law, ordinance, regulation, rule, code, injunction,
judgment, decree or order of any Governmental Authority.



(R) “Other Restricted Activities” means providing any of the following oil field
services: (1) swab trucks, (2) anchor trucks, (3) hot oil trucks, (4) tubing testing units, or (5)
mud tank rentals; provided, that rental of mud tanks in connection with land rig operations
shall not constitute an Other Restricted Activity.


 


41









 





(S) “Permitted Business” means providing any of the following oil field services: (i)
swab trucks, (ii) anchor trucks, (iii) hot oil trucks, (iv) tubing testing units, (v) mud tank
rentals, (vi) coil tubing, (vii) pressure pumping, (viii) slick line services, (ix) power swivels,
(x) Ancillary Equipment Rentals, (xi) work associated with the use of drilling or workover rigs on
oil, gas or other wells on locations over water, by way of drilling or workover barge rigs and by
way of land rigs placed on key way barges, and (xii) work associated with the use of drilling or
workover rigs on land locations that are accessible solely by way of water and the use of marine
barges.



(T) “Permitted Encumbrance” means any of the following matters: (i) liens for Taxes or
assessments not yet due and payable; (ii) any inchoate Liens or security interests created by Law
or reserved under the terms of leases, rights-of-way or other real property interests so long as
such leases, rights-of-way or other real property interests are not currently in default; (iii) any
reservations of minerals in and under or that may be produced from any of the lands constituting
the Breaux Bridge Yard; and (iv) immaterial discrepancies, conflicts, shortages in area or boundary
lines encroachments or protrusions, or overlapping of improvements, defects, irregularities and
other matters affecting the Assets, whether of sight or of record.



(U) “Permitted Offer Period” means, (i) for all Available Employees who are working on
the Big Rig for the Sempra Midstream, Inc. job as of the Effective Time, solely within the 30-day
period following the earlier of (A) the date their employment is involuntarily
terminated by Seller or (B) the termination or completion of the Sempra Midstream, Inc. job,
and (ii) for all other Available Employees solely within the 30-day period following Closing.


 


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(V) “Restricted Activities” means utilizing drilling or workover rigs on oil, gas or
other wells on locations over water, by way of drilling or workover barge rigs and by way of land
rigs placed on key way barges.



(W) “Return” means, with respect to any Tax, any information return report, statement,
declaration or document required to be filed under the applicable Tax Law in respect of such Tax,
and any amendment or supplements to any of the foregoing.



(X) “South Louisiana Area” means the Parishes of Acadia, Ascension, Assumption,
Calcasieu, Cameron, Iberia, Iberville, Jefferson, Jefferson Davis, Lafayette, Lafourche, Orleans,
Plaquemines, St. Bernard, St. Charles, St. Martin, St. Mary, St. Tammany, Tangipahoa, Terrebonne,
and Vermilion Parishes, Louisiana.



(Y) “Tax” or “Taxes” means any and all taxes of any kind (together with any
and all interest, penalties, additions to tax and additional amounts imposed with respect thereto)
imposed by any Governmental Authority.



(Z) “Traditional Business” means any Business (as defined in the 2007 Agreement) that
was conducted by any of the Companies immediately prior to the Closing Date of the 2007 Agreement.



ARTICLE XI

MISCELLANEOUS




11.1 Notices.



All notices, requests and other communications to either party hereunder shall be in writing
(including facsimile, telecopy or similar writing) and shall be deemed given when delivered:


 


43









 





	 	 	 
	If to Seller, to:

	 	Key Energy Services, LLC
	 

	 	Key Marine Services, LLC
	 

	 	Attn: Newton W. Wilson III
	 

	 	President and Assistant Secretary
	 

	 	1301 McKinney Street, Ste. 1800
	 

	 	Houston, TX 77010
	 

	 	Telecopier: (713) 651-4005
	 

	 	Phone: (713) 651-4442
	 
	 	 
	With a Copy to:

	 	Kimberly Frye, Esq.
	 

	 	Key Energy Services, LLC
	 

	 	Key Marine Services, LLC
	 

	 	Senior Vice President and General Counsel
	 

	 	1301 McKinney Street, Suite 1800
	 

	 	Houston, TX 77010
	 

	 	Telecopier: (713) 651-4559
	 

	 	Phone: (713) 651-4444
	 
	 	 
	If to Purchaser, to:

	 	Moncla Companies, L.L.C
	 

	 	Attn: L. Charles Moncla, Jr
	 

	 	P.O. Box 131368
	 

	 	Houston, TX 77219
	 

	 	Telecopier: 713-534-1875
	 

	 	Phone: 713-534-1871
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Moncla Marine, L.L.C
	 

	 	Attn: Michael Moncla
	 

	 	1023 E. St. Mary Street
	 

	 	Lafayette, LA 70505
	 

	 	Telecopier:                     
	 

	 	Phone: 337-319-9195
	 
	 	 
	With a Copy to:

	 	Richard C. Shanks, Esq.
	 

	 	The Shanks Law Firm
	 

	 	5300 Memorial Dr., Suite 800
	 

	 	Houston, TX 77007
	 

	 	Telecopier: 713-803-1091
	 

	 	Phone: 713-803-1090
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Cade A. Evans, Esq.
	 

	 	Jones, Walker






 


44









 





	 	 	 
	 

	 	600 Jefferson Street
	 

	 	Suite 1600
	 

	 	Lafayette, LA 70501
	 

	 	Telecopier: 337-262-9001
	 

	 	Phone: 337-262-9040






Each of the above persons may change their address or facsimile number or phone number by
notice to the other persons in the manner set forth above.



11.2 Taxes; Fees.



(A) Purchaser shall be responsible for the payment of any and all transfer, documentary,
sales, lease, use or other taxes arising in connection with the transactions contemplated by this
Agreement, any recording or filing fees with respect thereto, and any termination or transfer fees
arising in connection with any transfer of phones or phone services. Any such taxes, recording
fees, and filing fees imposed on the Seller under applicable law shall be reimbursed by Purchaser
within ten (10) days of notice from Seller.



(B) All Taxes relating to the ownership and operation of the Assets, including property, ad
valorem, and other state or local taxes, shall be pro-rated between Purchaser and Seller at
Closing, based on 2009 assessments for the actual number of days elapsed in 2010. Upon receipt of
2010 tax bills, Seller and Purchaser agree to refund to one another any excess amounts paid, or to
pay to one another any shortfall.



11.3 Amendments; No Waivers.



(A) Any provision of this Agreement may be amended or waived if, and only if, such amendment
or waiver is in writing and signed, in the case of an amendment, by Purchaser and Seller and
Original Sellers, or in the case of a waiver, by the party against whom the waiver is to be
effective.


 


45









 





(B) No failure or delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the existence of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.



11.4 Expenses.



All costs and expenses incurred in connection with this Agreement (other than as set forth in
Section 11.2) shall be paid by the party incurring such cost or expense.



11.5 Public Announcements.



The parties agree to consult with each other before issuing any press release or making any
public statement with respect to this Agreement or the transactions contemplated hereby and, except
as may be required by applicable law, will not issue any such press release or make any such public
statement prior to such consultation.



11.6 Successors and Assigns.



The provisions of this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns; provided that neither party may assign,
delegate or otherwise transfer any of its rights or obligations under this Agreement without the
consent of the other party hereto.



11.7 Governing Law.



This Agreement shall be construed in accordance with and governed by the law of the State of
Texas without regard to the conflicts of law rules of such state.


 


46









 





11.8 Counterparts; Effectiveness.



This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective on the Effective Time.



11.9 Entire Agreement.



This Agreement and other agreements referred to herein constitute the entire agreement between
the parties with respect to the subject matter hereof and supersede all prior agreements,
understandings and negotiations, both written and oral, between the parties with respect thereto.
No representation, inducement, promise, understanding, condition or warranty not set forth herein
has been made or relied upon by any party hereto.



11.10 Captions.



The captions herein are included for convenience of reference only and shall be ignored in the
construction or interpretation hereof.



11.11 Severability.



In the event any one or more of the provisions of this Agreement shall be or become illegal or
unenforceable in any respect, the validity, legality, operation and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.



11.12 Payment Agent.



Each Original Seller confirms that pursuant to the 2007 Agreement he irrevocably appointed the
Payment Agent, currently Leon Charles Moncla, Jr., as his agent on the terms set forth in the 2007
Agreement. Each Original Seller hereby ratifies and confirms such irrevocable appointment and each
Original Seller and 4M further irrevocably appoints Payment Agent as his agent in order: (a) to
deliver the Deferred Note to Seller and hereby directs that principal and


 


47









 




interest due, or to become due on the Deferred Note shall be applied in partial satisfaction
of the Purchase Price; (b) to give and receive on his behalf all notices and consents required or
permitted under this Agreement and other documents executed in connection herewith; and (c) to take
any other actions on his behalf as are delegated by any document, instrument, or certificate
delivered pursuant to this Agreement. Payment Agent acknowledges the foregoing and accepts this
appointment.




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers.




 


48











 




	 	 	 	 	 
	 	SELLER:



KEY ENERGY SERVICES, LLC

 	 
	 	By:  	/s/ NEWTON W. WILSON III
 	 
	 	 	Name:  	Newton W. Wilson III 	 
	 	 	Title:  	President and Assistant Secretary 	 
	 
	 	KEY MARINE SERVICES, LLC

 	 
	 	By:  	/s/ NEWTON W. WILSON III
 	 
	 	 	Name:  	Newton W. Wilson III 	 
	 	 	Title:  	President and Assistant Secretary 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 
	 	PURCHASER:



MONCLA COMPANIES, L.L.C.

 	 
	 	By:  	/s/ LEON CHARLES MONCLA, JR.
 	 
	 	 	Name:  	Leon Charles Moncla, Jr., 	 
	 	 	Title:  	Manager 	 
	 
	 	MONCLA MARINE, L.L.C.

 	 
	 	By:  	                                              /s/ MATTHEW MONCLA
 	 
	 	 	Name:  	Matthew Moncla 	 
	 	 	Title:  	Manager 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 
	 	ORIGINAL SELLERS:

 	 
	 	/s/ LEON CHARLES MONCLA, JR.
 	 
	 	LEON CHARLES MONCLA, JR. 	 
	 	 	 
	 	MONCLA FAMILY PARTNERSHIP, LTD.

 	 
	 	By:  	Moncla Management Trust, General Partner
 	 
	 	 	 
	 	By:  	                           /s/ LEON CHARLES MONCLA, JR.
 	 
	 	 	Leon Charles Moncla, Jr., Trustee 	 
	 	 	 
	 	                                                   /s/ LEON CHARLES MONCLA, JR.
 	 
	 	LEON CHARLES MONCLA, JR., TRUSTEE OF L. CHARLES MONCLA, JR. CHARITABLE REMAINDER TRUST
 	 
	 	 	 
	 	                                                   /s/ MICHAEL MONCLA
 	 
	 	MICHAEL MONCLA 	 
	 	 	 
	 
	 	 	 
	 	                                                    /s/ MATTHEW MONCLA
 	 
	 	MATTHEW MONCLA 	 
	 	 	 
	 
	 	 	 
	 	                                                   /s/ MARC MONCLA
 	 
	 	MARC MONCLA 	 
	 	 	 
	 
	 	 	 
	 	                                                   /s/ CHRISTOPHER MONCLA
 	 
	 	CHRISTOPHER MONCLA 	 
	 	 	 
	 
	 	 	 
	 	                                                   /s/ BIPIN A. PANDYA
 	 
	 	BIPIN A. PANDYA 	 
	 	 	 
	 
	 	 	 
	 	                                                  /s/ THOMAS SANDAHL
 	 
	 	THOMAS SANDAHL 	 
	 	 	 
	 
	 	 	 
	 	                                                   /s/ RHONDA MONCLA
 	 
	 	RHONDA MONCLA 	 
	 	 	 
	 
	 	 	 
	 	                                                    /s/ CAIN MONCLA
 	 
	 	CAIN MONCLA 	 
	 	 	 
	 
	 	 	 
	 	                                                   /s/ ANDREW MONCLA
 	 
	 	ANDREW MONCLA 	 
	 	 	 
	 
	 	 	 
	 	                                                 /s/ KENNETH ROTHSTEIN
 	 
	 	KENNETH ROTHSTEIN 	 
	 	 	 



 


 









 





	 	 	 	 	 
	 	

PAYMENT AGENT:

 	 
	 	/s/ LEON CHARLES MONCLA, JR.
 	 
	 	LEON CHARLES MONCLA, JR. 	 
	 	 	 
	 
	 	4M:



SECOND 4 M, LTD.

 	 
	 	By:  	
MONCLA MANAGEMENT TRUST, GENERAL PARTNER
 	 
	 	 	 
	 	By:  	                                              /s/ LEON CHARLES MONCLA, JR.
 	 
	 	 	LEON CHARLES MONCLA, JR. TRUSTEE