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EXHIBIT 10.9.13
Dated 15th July, 1994 1994
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(1) SIMON-HORIZON LIMITED
(2) HORIZON EXPLORATION LIMITED
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MASTER LEASING AGREEMENT
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XXXXXXX & XXXXXXX
00 XXXXXXXX XXXXXX
XXXXXX XX0X 0XX
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MASTER LEASING AGREEMENT
THIS MASTER LEASING AGREEMENT is made the 15th July, 1994 BETWEEN:
1. Simon-Horizon Limited whose registered office is at Xxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxx, Xxxx, XX0 0XX ("Simon")
2. Horizon Exploration Limited whose registered office is at 0 Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxx XX00 0XX (the "Lessee")
WHEREBY IT IS AGREED as follows:
1. DEFINITIONS
1.01 In this Master Leasing Agreement the terms defined in or for the
purposes of the Charter shall have the same meanings when used herein
unless otherwise defined below and the following terms shall have the
meanings given below:
Term Meaning
"Accounting Period" an accounting period within the
meaning of Section 12 of the Income
and Corporation Taxes Act 1988
"CAA" the Capital Xxxxxxxxxx Xxx 0000
"Calculation Rates" the standard rates of corporation
tax, applicable to the Rental during
the Primary Period as stated in the
Lease Contract
"Charter" the charterparty by way of
sub-demise in respect of the ship MV
"Simon Labrador" (ex MV "Seaway
Labrador") between the parties
hereto and of even date herewith
"Delivery" the time at which the Lessee takes
possession of the Ship under the
Charter as stated in the Protocol of
Delivery and Acceptance signed by
Simon and the Lessee
"Disposal Periods" the accounting period of the Owner
in which the Primary Period comes to
an end
"Effective Date" the date so defined in and for the
purposes of the Agreement
"Event of Default" any of the events specified in
Clauses 14.01 or 14.02
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"Goods" in relation to each Lease Contract,
the goods specified in Schedule I
thereof or any of them together with
all replacements, renewals and
component parts thereof and all
additions and accessories thereto
which form an integral part thereof
"Goods Capital means the amount of the Owner's
Outstanding" investment in the relevant Lease
Contract from time to time
"Interest Rate" the interest rate calculated as
specified in Clause 15
"Lease Contract" a contract for the sub-leasing of
Goods entered into between Simon and
the Lessee pursuant to this Master
Agreement
"Lease Period" the period from the entering into of
a Lease Contract until the Prime
Date plus the Primary Period and
(unless the context does not so
admit) the Secondary Period or until
the leasing of the Goods under such
Lease Contract terminates for any
reason
"Master Agreement" this Master Leasing Agreement
"Original Cost" the expenditure incurred by the
Owner, exclusive of recoverable
value added tax (or other tax
relating to the purchase of the
Goods), on acquisition of the Goods
as specified in Clause 3 of the
relevant Lease Contract
"Owner" Royal Bank of Scotland (Industrial
Leasing) Limited and includes its
successors and assigns
"Primary Period" the primary period of leasing
starting as specified in the
relevant Lease Contract and
terminating subject to the terms and
conditions of the Charter and this
Agreement, on 1st April 2001
"Prime Date" the date specified in the relevant
Lease Contract as the date on which
the Primary Period commences
"RBS Master Leasing the Master Leasing Agreement dated
Agreement" 31st March 1992 and made between the
Owner and Simon
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"RBS Lease Contracts" means the contracts for the Leasing
of Goods by the Owner to Simon made
pursuant to the RBS Master Leasing
Agreement
"Rental" the rental payable by the Lessee for
the use of Goods under the Lease
Contract as the same may be from
time to time adjusted, increased or
supplemented pursuant to Clause 5 of
this Master Agreement
"Rental Period" the period specified in the Lease
Contract in respect of which a
payment of rental is due
"Return" a profit take out rate of return,
such rate being equivalent to a rate
of interest and being the rate at
which the Owner assumes in relation
to any relevant RBS Lease Contract
relating to Goods the subject of a
Lease Contract that profit will be
withdrawn by the Owner at annual
intervals during the investment
period of such RBS Lease Contract
(relating to such Goods) in
proportion to the investment in such
RBS Lease Contract and after taking
account of taxation
"Secondary Period" any period starting at the same time
as the secondary period under the
Charter (therein defined as the
"Secondary Period") and, subject to
the terms of this Master Agreement
and the Charter, coterminous with
such secondary period
"Site" the Ship
"Supplier" the supplier of any of the Goods
referred to in the relevant Lease
Contract
"Termination Sum" in relation to a Lease Contract the
amount, calculated in accordance
with Clause 14.03, payable by the
Lessee to Simon upon termination of
the Lease Contract prior to the end
of the Primary Period
1.02 References in this Master Agreement to Clauses and Schedules are,
unless the context otherwise requires, to Clauses of and Schedules to
this Master Agreement.
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2. REPRESENTATIONS AND WARRANTIES
2.01 The Lessee represents and warrants to Simon that:
(a) there has been no material adverse change in the
financial position of the Lessee from that set forth
in the latest audited financial statements delivered
to Simon under Clause 11.1(d) of the Charter;
(b) every consent, authorisation, license or approval of,
or registration with, or declaration to, governmental
or public bodies or authorities or courts required by
the Lessee to authorise, or required by the Lessee in
connection with the execution, delivery, validity,
enforceability or admissibility in evidence of this
Master Agreement and any Lease Contract, or the
performance by the Lessee of its obligations under
this Master Agreement and any Lease Contract has been
obtained or made and is in full force and effect, and
there has been no default in the observance of the
conditions or restrictions (if any) imposed in, or in
connection with, any of the same;
(c) the obligations of the Lessee under the Goods
Contracts are direct, general and unconditional
obligations of the Lessee and rank at least pari
passu with all other present and future unsecured and
unsubordinated obligations (including contingent
obligations) except as are mandatorily preferred by
law and not by contract;
(d) the Lessee is not (nor would with the giving of
notice or lapse of time or both be) in breach of or
in default under any agreement relating to
Indebtedness to which it is a party or by which it
may be bound;
(e) all information, exhibits ant reports furnished by
the Lessee to Simon in connection herewith or with
the negotiation and preparation of this Master
Agreement are true and accurate in all material
respects and not misleading, do not omit material
facts and all reasonable enquiries have been made to
verify the facts and statements contained therein;
there are no other facts the omission of which would
make any fact or statement therein misleading;
(f) no Relevant Event has occurred and is continuing;
(g) the Goods are and will on Delivery be free from all
Encumbrances other than Permitted Encumbrances; and
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(h) neither the Lessee's interest in the insurances
relating to the Goods or any Requisition Compensation
nor any part thereof will on Delivery be subject to
any Encumbrances save for any Permitted Encumbrance.
3. LEASE CONTRACTS
3.01 Simon shall lease to the Lessee and the Lessee shall take on lease the
Goods for the Lease Period. Provided however that the obligation of
Simon to lease the Goods to the Lessee under this Master Agreement or
any Lease Contract is subject to the conditions that, (a) on Delivery
Simon shall have received the documents and evidence specified in
Schedule 1 in form and substance satisfactory to Simon and (b) on the
date Delivery is to take place the representations and warranties set
out in Clause 2.01 (a)-(f) (inclusive) of the Charter are and remain
true and correct in all respects and (c) no Relevant Event would arise
by reason of Delivery taking place.
3.02 The lease of the Goods under each Lease Contract shall start on the
date on which the Lease Contract is entered into by the Lessee; the
Primary Period shall commence on the Prime Date and irrespective of
all other provisions hereof all the obligations of the Lessee
hereunder as regards any Goods shall commence on Delivery.
3.03 Subject to the Lessee indemnifying Simon for all losses, costs and
expenses incurred by Simon as a result of such termination, the Lessee
shall be entitled on giving to Simon not less than one hundred and
fifty (150) days notice (which notice, when given, shall be
irrevocable) to terminate the Lease Period of the Goods on any date
falling on or after the first anniversary of the Start Date. Upon
such termination (which shall be called "Voluntary Termination"
herein) the Lessee shall re-deliver the Goods to Simon in accordance
with Clause 13 and shall pay to Simon an amount equal to the
Termination Sum on the date of such termination, calculated in
accordance with Clause 14.03 together with all amounts of Rentals and
other moneys then due and owing to Simon under this Agreement.
(In the event that the Lessee serves a notice of voluntary termination
under Clause 3.3 of the Charter it shall be deemed that a notice of
Voluntary Termination shall have been served to terminate the Lease
Period of the Goods on the same date as the Charter Period of the Ship
is due to terminate under such notice of voluntary termination).
3.04 The terms of this Master Agreement shall be deemed to be incorporated
into the terms of each Lease Contract provided that in the event of
any conflict between the terms hereof and the terms specified in a
Lease Contract the latter shall prevail. Each Lease Contract shall be
deemed to form a separate agreement for the lease of the Goods therein
described but so that any breach of the provisions of this Master
Agreement or any Lease Contract for the time being in force shall be
deemed to be a breach of this
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Master Agreement and of every such Lease Contract in force between the
parties hereto.
3.05 The Lessee's right to use the Goods is conditional upon the due
performance by the Lessee of its obligations hereunder and every Lease
Contract, subject to which, the Lessee shall be entitled peaceably to
hold and use the Goods without interference from Simon or any person
claiming title through Simon. If the Owner shall be in breach of the
Owner's obligations pursuant to Clause 3.05 of the RBS Master Inuring
Agreement, Simon will at the cost and request of the Lessee take such
steps as the Lessee may reasonably require to enforce Simon's rights
against the Owner to have such breach remedied.
3.06 Provided that the Lessee has duly performed all of the terms and
conditions of each Lease Contract and that no Event of Default has
occurred the leasing of Goods under a Lease Contract shall continue
after the end of the Primary Period until the termination of the
Secondary Period under the Charter.
3.07 The Lessee hereby warrants and undertakes to Simon that no leasing of
the Goods under any Lease Contract shall be within the scope of or
regulated by the Consumer Credit Act 1974 (or as amended, replaced,
extended or re-enacted from time to time) or any similar legislation
or regulatory controls. In the event that the Goods or any Lease
Contract are or become subject to such statutory controls, and the
same shall materially affect the rights of Simon hereunder, Simon
shall be entitled to terminate the relevant Lease Contract and the
provisions of Clause 13 of this Master Agreement shall apply mutatis
mutandis as though an Event of Default had occurred.
4. DELIVERY OF GOODS
4.01 All risk of loss of or damage to the Goods shall as between Simon and
the Lessee pass to the Lessee in accordance with the terms of the
Agreement. Delivery of the Goods shall occur at the same time as
Delivery of the Ship occurs under the Charter and the Goods shall be
held by the Lessee subject to and in accordance with the provisions of
this Master Agreement and the Lease Contracts.
4.02 The Lessee acknowledges that prior to Delivery the Charterer has in
accordance with management arrangements with Simon conducted its
seismic survey business on and by use of the Ship through the services
of its own employed personnel and has thereby had sufficient
opportunity to carry out any inspections of the Ship, her condition
and any and all Goods and the condition of the Goods on delivery to
the Lessee shall be the sole responsibility of the Lessee, and the
Lessee shall not be entitled for any reason whatsoever to refuse to
accept delivery of the Goods and Simon shall not be liable for any
loss or expense, or any loss of profit, resulting directly or
indirectly from any defect or alleged defect in the Goods or failure
or alleged failure of the Goods to comply in all respects with the
terms of the RBS Lease Contracts and the RBS Master
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Leasing Agreement and the Lessee agrees that upon delivery the Lessee
shall accept the Goods "as is, where is" and shall indemnify and hold
Simon harmless in respect of any failure of any Goods to comply with
the terms of any of the RBS Lease Contracts and the RBS Master Leasing
Agreement.
4.03 The liability of the Lessee to pay rent under any Lease Contract shall
not be affected by any defect or shortage in the Goods which are the
subject thereof discovered on Delivery.
5. RENTALS AND TAXES
5.01 The Lessee shall pay to Simon in respect of the lease of the Goods the
Rentals and other payments specified in the Lease Contract relating
thereto.
5.02 Rentals shall be due and payable at the times and for the periods
specified in the Lease Contract.
5.03 The Lessee shall not be entitled to withhold payment of Rentals or to
any remission of Rentals in respect of any period during which the
Goods are unusable or unserviceable and Simon shall not be liable to
provide the Lessee with any replacement goods during any such period.
5.04 (a) The Rentals have been calculated on the following assumptions
("Assumptions"):
(i) that all rentals to be received by the Owner pursuant
to the RBS Lease Contracts will for tax purposes be
accrued over the period to which they relate, by
reference to the relevant Leasing Contract;
(ii) that there will be available to the Owner in respect
of the Accounting Period of the Owner during which
the Original Cost is incurred a 25% writing down
allowance and in each subsequent Accounting Period in
which the Goods continue to be leased by the Owner to
Simon a writing down allowance at the rate of 25% per
annum (or at the rate specified in the Leasing
Contract, if different) on a reducing balance basis
all as provided by Section 24 of the CAA in force as
at the date thereof, and that the capital allowances
so available will not be withdrawn either wholly or
in part, and that there will be no delay in the
agreement of the Owner's claim for said allowances;
and
(iii) that any losses arising to the Owner in respect of
the said allowances will be available for surrender
by way of group relief in accordance with the
provisions of Chapter IV of Part X of the Income and
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Corporation Taxes Act 1988 (as amended, and in force,
as at the date hereof); and
(iv) that the standard rate of United Kingdom corporation
tax is and will continue to be fixed at the
Calculation Rates specified in the Lease Contract;
and
(v) that the Goods will be sold in the Accounting Period
of the Owner in which the Primary Period expires by
effluxion of time and that the amount which the Owner
is required to bring into account as disposal value
on such sale in accordance with section 24(6) CAA
will be the balance of the Original Cost on which
writing down allowances are assumed to be available
for that Accounting Period by Assumption 5.04(a)(ii)
above; and
(vi) that any interest paid or assumed to be paid in
respect of funds borrowed or assumed to be borrowed
by the Owner for the purpose of this transaction is
or would had it actually been paid have been allowed
as a trading expense or as a charge on income in the
Accounting Period of the Owner to which such interest
relates or is paid (or assumed to be paid); and
(vii) that in the "requisite period" (as that expression is
defined in section 40 CAA) the Goods will not be used
for a purpose which results in section 42 CAA
applying; and
(viii) that, in relation to Original Cost, no charge will
arise under section 46 CAA in respect of any excess
relief (as therein defined) or under section 42 CAA
as the same may be amended, extended, substituted or
replaced from time to time; and
(ix) that the Owner would incur professional fees and
disbursements of L.5 per L.1000 of Original Cost
(exclusive of Value Added Tax) in respect of the
transaction contemplated by the RBS Lease Contract
excluding the funding arrangements; and
(x) that the fees incurred by the Owner referred to in
Assumption (ix) above would be deductible as a
trading expense in the Accounting Period of the Owner
in which such fees are payable; and
(xi) that the interest assumed to be received and paid in
Assumption 5.04(a)(xiii) will be treated as accruing
on a daily basis for the purpose of Corporation Tax
and will be accrued on positive or negative balances
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of Goods Capital Outstanding (as the case may be)
until the Final Date; and
(xii) (1) that all losses arising in an Accounting
Period of the Owner as referred to in
Assumption 5.04(a)(iii) will be surrendered
to members of the Owner's Group;
(2) that the Owner will receive payments for
group relief on the date for payment of
Corporation Tax that no refund of such
payments shall be made by the Owner and that,
in accordance with section 402(6) ICTA, such
payments will not be taken into account
(either as a receipt or a deduction) for
Corporation Tax purposes; and
(xiii) that on the Interest Payment Date in respect of each
Interest Reference Period during which the Goods
Capital Outstanding is
(i) a negative figure the Owner will pay interest
calculated on a daily basis using a 365 day
year on the daily balances of Goods Capital
Outstanding during such Interest Reference
Period at the Reference Rate; or
(ii) a positive figure the owner will receive
interest calculated on a daily basis using a
365 day year on the daily balances of Goods
Capital Outstanding during such Interest
Reference Period at a rate of 7 per cent per
annum; and
(xiv) that the interest referred to in Assumption
5.04(a)(xiii) will be payable to a person carrying on
a bona fide banking business in the UK;
(xv) that any rebate of rentals made by the Owner to Simon
pursuant to Clauses 14.02(c) or 16.06 or 17.02 of the
RBS Master Leasing Agreement will be an allowable
deduction in the accounting period of the Owner in
which the Termination Sum is paid for the purposes of
computing the Owner's corporation tax liability; and
(xvi) that the Owner will not be required to bring into
account any disposal value for the purposes of
calculating a balancing allowance or charge in
respect of the Goods other than a disposal value
equal to the net proceeds of sale and/or insurance
proceeds of the Goods; and
(xvii) that no change occurs in the nature, method or
application of any relevant United Kingdom taxation
by reason of any enactment, provision,
interpretation, practice or ruling of or by an
authority,
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whether legislative, judicial, administrative or
revenue, after the date of this Agreement; and
(xviii) that the Goods leased under each RBS Lease Contract
will be treated independently of any of the Owner's
other Goods, for the purposes of calculating the said
allowances, and any balancing allowance or charge
arising on disposal;
(xix) any other additional Assumptions detailed in the RBS
Lease Contracts are correct; and
(xx) that the Inland Revenue will not treat the respective
disposal values of the Ship (excluding the Goods) and
the Goods as any amount different from that assumed
by the Owner; and
(b) If, and as often as, any of the Assumptions other than
Assumptions (xiii), (xiv) and (xviii) on the basis of which
the Rentals are calculated proves to be incorrect during the
Primary Period with the result that the Return, in relation to
any Goods, is altered the amounts of those Rentals or
Termination Sum (as the case may be) which fall due after the
relevant Assumption has proved to be incorrect shall be
adjusted either upwards or downwards by such amount as the
Owner shall certify in writing to Simon (which certificates
shall be conclusive in the absence of manifest error and
copies of which Simon will forward to the Lessee) to be the
amount required to ensure that the Return of the Owner, in
relation to those Goods, is the same as it would have been had
the relevant Assumption (and all other such Assumptions)
proved to be correct.
(c) If any of the Assumptions on the basis of which the Rentals
are calculated proves to be incorrect with the result that the
Return, in relation to any Goods, is altered after the expiry
or termination of the Primary Period or at a time when no
further Rentals or Termination Sum in relation to those Goods
fall due a further payment of rental or Termination Sum (as
the case may be) or a rebate of rental or Termination Sum (as
the case may be) shall become due of such amount as the Owner
shall certify in writing to Simon (which certificate shall be
conclusive in the absence of manifest error and copies of
which Simon will forward to the Lessee) to be the amount
required to ensure that the Return in relation to those Goods
is the same as it would have been had the relevant Assumption
(and all other such Assumptions) proved to be correct.
(d) An Assumption will be deemed to have been proved to be
incorrect either upon the receipt of written notification from
the Inland Revenue or, in the case of an Assumption changing
due to a change in legislation, on the date that such
legislation comes into force.
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(e) Simon shall be under no obligation to reduce the Rental if it
transpires that the Owner is entitled to capital allowances at
a rate in excess of that stated in Clause 5.04 (a) (ii) above
or in the Lease Contract (as may be amended).
5.05 All payments of Rentals and all other payments due under this
Agreement or any Lease Contract shall be made in sterling without
prior demand and without any right of set-off or counterclaim and free
and clear of all deductions or withholdings whatsoever unless the same
are required by law in which event the Lessee undertakes to pay to
and/or indemnify Simon for such additional amounts as may be necessary
in order that the net amounts received by Simon after all deductions
and withholdings shall not be less than such payments would have been
in the absence of any requirement to make any deduction or
withholding.
5.06 The Lessee shall pay to Simon at the rates applicable all Value Added
Tax on the Rentals and other payments due under the Master Agreement
or any Lease Contract and any other taxes assessments or charges
levied against or payable by Simon on account of the RBS Lease
Contracts or by the Owner on account of its ownership of the Goods or
the leasing, use or operation thereof or the Rentals or other sums
payable in respect thereof excluding however any taxes payable on the
net income of Simon and/or the Owner.
5.07 Payment of Rentals shall be made in the manner specified in the Lease
Contract. Time of payment shall be of the essence as regards all
Rentals and other payments payable to Simon hereunder or under any
Lease Contract.
5.08 The Lessee undertakes promptly upon demand by Simon to provide Simon
or the Owner with such certificate and/or information as Simon or the
Owner may reasonably request from time to time to enable the Owner to
claim any allowances in respect of its expenditure on the Goods and to
remain entitled to such allowances.
5.09 For the purposes of United Kingdom taxation and irrespective of the
accounting treatment to be adopted by the Lessee, the Lessee shall not
claim capital allowances on the Goods.
6. LOCATION, USE AND MAINTENANCE OF GOODS
6.01 Notwithstanding the provisions of the Charter, the Goods shall be
located at the Site and shall not be removed therefrom during the
Lease Period without the prior consent in writing of Simon and the
Owner except as may be required in the ordinary course of operating
and maintaining the Ship.
6.02 Without prejudice to the terms of the Charter the Lessee shall use the
Goods in a careful and proper manner and in accordance with any
operating instructions issued in respect thereof by the Supplier
thereof. The Lessee shall not permit the Goods to be
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used for any purpose for which they are not designed or for any
unlawful purpose. The Lessee shall ensure that the Goods are used or
operated by properly skilled personnel.
6.03 Without prejudice to the terms of the Charter the Lessee shall at all
times keep the Goods in good repair and condition and in working order
and shall, at its own expense, replace all worn and damaged parts
thereof. For this purpose the Lessee shall, at its own expense, if
required by Simon and/or the Owner, enter into and maintain in full
force and effect throughout the Lease Period a maintenance agreement
in terms approved by Simon and/or the Owner with the Supplier or other
party approved by Simon and/or the Owner and the Lessee undertakes to
comply promptly with all its obligations under such agreement. The
Lessee shall supply a copy of such agreement to Simon and or the Owner
if so requested. The Lessee shall at all times ensure that any repair
or servicing of the Goods is undertaken by properly skilled and
qualified persons and in accordance with the instructions or
recommendations of the Supplier of the Goods.
6.04 (a) The Lessee shall keep an up-to-date record of the whereabouts
of the Goods which it will supply to Simon and/or the Owner on
request.
(b) The Lessee shall not be obliged to enter into a maintenance
agreement as provided by clause 6.03 above, but shall procure
that the Goods are properly serviced in accordance with the
recommendations of the Supplier thereof.
6.05 The Lessee shall at its own expense obtain and keep in full force and
effect all permissions, licenses and other authorisations which may at
any time be required in connection with the possession or use of the
Goods and/or any premises in which the same are located at any time
during the Lease Period and the due performance by the Lessee of its
obligations under this Master Agreement and each Lease Contract and,
if so requested, shall provide a copy of each thereof to Simon and the
Owner. The Lessee shall comply with all statutory and other
obligations relating to the possession and/or use of the Goods and
shall at is own expense add to or install with the Goods any safety or
other equipment required by any applicable law or regulation to be so
added or installed for the lawful use or operation of the Goods. If
any such liability shall be discharged by Simon or the Owner, the
Lessee shall repay the same to Simon or the Owner (as the case may be)
on demand with interest calculated at the Interest Rate from the time
of the same having been discharged until such repayment.
6.06 The Lessee agrees to indemnify and hold harmless Simon from and
against any and all claims, demands and proceedings brought against
Simon and/or the Owner in respect of any injury, damage or loss caused
to persons or property arising directly or indirectly out of the
possession, operation, transportation or condition of the Goods during
the Lease Period or out of the ownership of the Goods or out of any
disposal of the Goods by the Lessee pursuant to Clause 16 or 17 or as
a result of any claim that
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the use of the Goods is an infringement of any patent or intellectual
property right or otherwise in connection with the Goods.
7. OWNERSHIP PLATES AND INSPECTION
7.01 The Lessee shall if so requested by Simon or the Owner affix or cause
to be affixed to the Goods, or any separate part or parts thereof,
plates or other forms of marking ("Plates") indicating in terms
approved by the Owner that the Goods are the property of the Owner,
are leased by the Owner to Simon and are on sub-lease to the Lessee.
The Lessee shall ensure that such Plates remain so affixed and that
the same are conspicuous and are at no time removed, obliterated,
defaced or covered up.
7.02 Simon and/or the Owner or its/their agents or representatives shall at
all reasonable times have access to the Goods (and for this purpose
shall be entitled to enter on the Site or on any land or premises on
or in which the same are reasonably believed to be situated) for the
purpose of inspecting the same and the Lessee shall provide Simon
and/or the Owner or its/their agents or representatives with
reasonable facilities for any such inspection.
8. PROHIBITION AGAINST DEALING WITH THE GOODS
8.01 The Lessee shall not and shall not purport to sell or offer for sale,
grant security over, charge, assign, pledge, mortgage, sub-lease or
otherwise dispose of the Goods or any of them or permit any lien
(other than a repairer's lien) to arise over any of the Goods or
sublease or part with possession of any of the Goods without the
previous written consent of Simon and the Owner.
8.02 The Lessee shall not without the previous written consent of Simon and
the Owner attach any of the Goods to any land or premises other than
the Ship so that they become or, in the reasonable opinion of the
Owner, may become a fixture thereon.
8.03 The Lessee shall during the Lease Period promptly notify (i) the
holders of any fixed security or floating charge over all or any of
the goods of the Lessee and (ii) any landlord of the land or premises
where the Goods are at any time located, that the Goods are the
property of the Owner and held upon a sub-lease from Simon and the
Lessee shall provide satisfactory evidence of such notification and,
where requested by Simon or the Owner, a written acknowledgement from
the holders of any such security or charge that the Goods and the
Lessee's leasehold interest therein are not within the scope of any
such security or charge or from any landlord that the Goods have not
and will not become a landlord's fixture, and (in the case of a
landlord of premises in Scotland) are not and will not be secured by
the landlord's right of hypothec.
8.04 The Lessee further undertakes to give to Simon and the Owner during
the Lease Period 14 days notice of the proposed creation of any
security mortgage or charge
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created by the Lessee whether fixed or floating over its goods
generally or over its stocks and/or its machinery or plant and/or over
any land or premises on or in which the Goods are located and the
Lessee shall notify Simon and the Owner promptly of any enforcement
thereof or of the appointment of any receiver of all or part of the
Goods.
8.05 The Lessee further undertakes that forthwith upon becoming aware of
the assignment of any security or charge as is referred to in Clause
8.03 hereof or of the disposal by the landlord of his interest in any
such land or premises as are there referred to, the Lessee will notify
the assignee or disponee that the Goods are the property of the Owner
and held upon a sub-lease from Simon and will provide satisfactory
evidence of such notifications and, where requested by Simon or the
Owner, such acknowledgement by the assignee or disponee as is referred
to in Clause 8.03 hereof.
8.06 The Lessee shall not permit any of the Goods to be seized or taken out
of its possession or control under any diligence, distress, execution
or other legal process but if the Goods are so seized or taken the
Lessee shall promptly notify Simon and the Owner thereof and shall
indemnify Simon and/or the Owner against all losses costs or charges
incurred by Simon and/or the Owner by reason thereof in retaking
possession or otherwise in reacquiring the Goods or in acquiring
substitutes therefor.
9. ALTERATION TO THE GOODS
9.01 Subject to due compliance with Clause 6.03 the Lessee shall not
without the prior written consent of Simon and the Owner make any
addition alteration or modification to the Goods or attach any
accessories thereto which cannot be removed without damaging or
impairing the Goods. Any accessories so attached whether in breach of
this provision or otherwise shall automatically, and without prejudice
to any entitlement of Simon and/or the Owner to damages, become the
property of the Owner.
10. WARRANTIES RELATING TO THE GOODS
10.01 It is expressly agreed and acknowledged that no condition, warranty or
representation of any kind is or has been given by or on behalf of
Simon or the Owner in respect of any of the Goods. All conditions or
warranties expressed or implied by law relating to the specifications,
quality, description, merchantability or otherwise of the Goods or as
to their fitness for any purpose are hereby expressly excluded. The
Lessee agrees and acknowledges that neither Simon nor the Owner shall
be liable for any claim, loss, damage, expense or other liability of
any kind or nature caused directly or indirectly by any of the Goods
or by any inadequacy thereof for any purpose or by any deficiency or
defect thereof or the use or performance thereof or any repairs
thereto or servicing thereof and the Lessee shall not by reason
thereof be released from any
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liability to pay rental or any other payment due hereunder or under
any Lease Contract.
10.02 Simon will at the expense of the Lessee endeavor to extend to the
Lessee the benefit of any guarantee, condition or warranty which may
have been given to the Owner (or Simon) by the Supplier or which is
implied by law in favor of the Owner (or Simon) provided always
however that (i) the Lessee is not in default under this Master
Agreement or any Lease Contract or any other agreement between the
Owner or Simon and the Lessee (ii) the Lessee fully indemnifies the
Owner and/or Simon against all costs, claims, damages and expenses
incurred or which may be incurred in connection with the making of any
claim thereunder and (iii) the Lessee gives such security in advance
in respect of such indemnity as the Owner and/or Xxxxx xxx xxxx
appropriate.
10.03 The Lessee acknowledges that the Supplier is not and has not been the
agent of the Owner or Simon and neither the Owner nor Simon shall be
bound by any representation or warranty made by or on behalf of the
Supplier.
11. INDEMNITY AND INSURANCE
11.01 The Lessee shall from the Effective Date until the end of the Lease
Period keep the Goods comprehensively insured at the expense of the
Lessee for an amount equal to whichever is the greater from time to
time of (a) full replacement value and (b) one hundred and ten per
cent. (110%) of the maximum Termination Sum (in the case of a
variable rate lease, on the Assumption that the base rate specified in
the Lease Contract will apply throughout the Primary Period) and shall
indemnify Simon and the Owner in respect of any claim arising out of
the use or possession of the Goods. The insurance policies shall be
taken out with reputable insurers and shall cover (i) all risks of
loss or damage whatsoever (ii) all third party and public liability
and (iii) other matters in respect of which the Goods are or the
Lessee is for the time being required by statute or otherwise to be
insured. Such insurance policy shall not have any excess unless
agreed by the Owner and Simon in writing. The Lessee shall at all
times maintain third party and public liability insurance in respect
of the business carried on by the Lessee in which the Goods are used
for amounts which are prudent and reasonable having regard to the type
of business being carried on by the Lessee. Such insurance shall name
the Owner and Simon as joint assureds and contain an endorsement to
the effect that the Goods are the property of the Owner (and
sub-leased from Simon), that all moneys payable under such policy
shall be payable to or to the order of the Owner and that the Owner
shall be given 30 days prior notice of any intention of the Lessee or
the insurance company to cancel the policy or to alter its terms or
not renew the policy on the same terms.
11.02 The Lessee shall if required produce to the Owner and Simon:
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(i) a cover note in respect of the Goods within 10 days of
assuming the risk in the Goods in accordance with the
provisions of Clause 3.01 hereof;
(ii) the insurance policy within 10 days of its becoming available;
(iii) each premium receipt within 10 days of the due date of premium
payment;
(iv) any amendments to the insurance policy by way of note,
endorsement or otherwise forthwith upon notification to the
Lessee.
11.03 If the Lessee shall fail to keep the Goods so insured or to produce
such policy or receipt as aforesaid, the Owner and/or Simon shall be
entitled, at the expense of the Lessee, to insure the Goods as
aforesaid and the Lessee shall pay to Simon on demand any sums
expended by the Owner and/or Simon for such purpose together with
interest at the Interest Rate accruing on a day to day basis from the
time of the same having been expended until such payment.
11.04 The Lessee irrevocably authorises the Owner (and/or Simon) to give a
good discharge to the insurance company for any moneys paid under such
insurance policy. The Lessee shall, if so requested by the Owner
(and/or, where appropriate, Simon), assign to the Owner (and/or Simon)
or to its (or their) order the rights, claims and benefits arising
under any such policy and shall indemnify the Owner (and/or Simon) in
respect of any stamp duty on such assignment.
11.05 If the Goods will be used in any nuclear power station or in any
nuclear process where the Goods or those using them may be subjected
to any risk of ionising radiations or contamination by radioactivity,
then before the leasing of the Goods starts the Lessee shall inform
Simon in writing and in consultation with Simon shall effect such
additional insurance cover as Xxxxx xxx require.
11.06 The Lessee shall ensure that nothing is done or omitted to be done
which is contrary to the terms of any such policy of insurance or
which might entitle the insurance company to cancel the policy or
reduce or avoid any liability thereunder.
11.07 The Lessee shall forthwith notify the Owner and Simon in writing of
any occurrence which gives rise or might reasonably be expected to
give rise to a claim under such policy of insurance. The Lessee shall
ensure that any claim is made promptly and in accordance with the
terms of the policy and shall not agree any settlement of a claim
without the prior written consent of the Owner and Simon.
11.08 If any item specified in the Schedule annexed and executed as relative
to a Lease Contract as forming part of the Goods for the purposes of
such Lease Contract becomes a total loss or constructive total loss as
a result of the Ship becoming a Total Loss or as a result of that item
being lost, stolen, seized, confiscated, damaged beyond
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economic repair or otherwise the hiring of such item shall terminate,
and on such event the Lessee shall either:
(i) acquire a replacement for the lost item of equivalent size and
condition acting for this purpose as agent for the Owner, in
which event the replacement shall be deemed to be included in
the relevant RBS Lease Contract and the relevant Lease
Contract for all purposes, the Lessee shall continue to be
liable to pay Rental, and other payments in accordance with
the Lease Contract and this Master Agreement as if such loss
had not taken place, and Simon shall only be liable to
reimburse the Lessee in respect of expenditure incurred as its
agent to the extent that the Simon receives insurance proceeds
in respect of such loss or
(ii) notify Simon of such loss and forthwith pay to Simon a
Termination Sum calculated by reference to the proportion of
the rental attributable to the lost Goods. All insurance
proceeds shall be paid to the Owner and until such Termination
Sum is received the obligations of the Lessee under this
Master Agreement and the Lease Contract shall continue in all
respects and in particular the Lessee shall continue to be
liable to pay Rental, and other payments falling due in
respect of such lost Goods subject to Clause 11.12 on receipt
of the Termination Sum in full Simon agrees to pay to the
Lessee any insurance proceeds it receives in respect of the
loss of the Goods.
Provided always that the Lessee shall only be entitled to
acquire replacements under (i) above during the Primary Period
in respect of lost items which have an aggregate original cost
not exceeding 10% of the total Original Cost for the Goods as
specified in the relevant Lease Contract. If the Original
Cost of Goods lost in the Primary Period exceeds such figure
then the loss shall be notified to Simon and dealt with in
accordance with Assumption (ii) above.
11.09 The Lessee shall be liable to reinstate or repair at its own expense
Goods which have not become a total loss or a constructive total loss
provided however that, subject to Clause 11.10 below any insurance
proceeds which are paid otherwise than in respect of a total loss or a
constructive total loss of the Goods shall be applied either in or
towards the cost of reinstating or repairing the Goods to the
satisfaction of Simon and the Owner or, if the Goods have been so
reinstated or repaired at the expense of the Lessee, in or towards
reimbursement of the Lessee for the cost thereof.
11.10 If the Lessee shall be in default of any obligation under this Master
Agreement or any Lease Contract, such insurance proceeds may, at the
option of Simon and the Owner, be applied first in or towards payment
of any amounts then owing by the Lessee to Simon.
11.11 Notwithstanding the other sub-clauses of this Clause 11 if, in the
event of requisition of the Ship for hire, it is proved to the
satisfaction of Simon and the Owner that such
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requisition is upon terms whereby the requisitioning authority has
assumed the responsibility of the Lessee to Simon and the Owner to
indemnify or recompense it in respect of or otherwise to make good all
losses which would ordinarily be covered by the insurances required to
be effected by the Lessee under this Agreement, the Lessee shall be
relieved from its insurance obligations under this Agreement in
respect of such period of requisition or in the event that the
requisitioning authority shall have assumed only a partial
responsibility as aforesaid the insurance obligations of the Lessee
under this Agreement shall be modified in such a manner and to such
extent as Simon and the Owner may approve.
11.12 All moneys received by the Owner (or Simon) as loss payee under the
insurances of the Goods from insurers or others in respect of a Total
Loss (this sum being, when the Goods are insured as part of the Ship,
that part of the Insurances in respect of the Goods) shall be applied
subject to Clause 10.04 of the Charter (which shall be read for this
purpose as if referring to the Goods Contracts and not the Relevant
Documents) as follows:
(a) Firstly, in or towards settlement of all amounts due and owing
by Simon to the Owner under the RBS Master Leasing Agreement
or any of the other Goods Contracts (as therein defined);
(b) Secondly, if the Lessee shall on or before the date of
application of such moneys have paid the Termination Sum, or a
part thereof, in accordance with Clause 11.08 in or towards
refunding by way of rebate of Rentals or otherwise as
appropriate to the Lessee the amount of the Termination sum or
part thereof so paid by the Lessee; and
(c) Thirdly, an amount equal to two per cent (2%) of such moneys
received by the Owner as loss payee under the insurances of
the Goods shall be retained by the Owner, and any balance paid
to Simon shall be paid by Simon to the Lessee or to its order
by way of rebate of Rentals or otherwise as appropriate.
11.13 If the Owner shall require and at any time when the Goods are
installed on the Ship, Clauses 11.01 to 11.04 shall not apply (save
for the indemnity contained in Clause 11.01) and the Goods shall be
insured as part of the Ship in accordance with Clause 16 of the
Charter provided such insurances clearly show an agreed value for the
Goods, approved by Simon and the Owner and such insurances are
otherwise on terms approved by Simon and the Owner.
12. PROPERTY IN THE GOODS
12.01 The Goods shall at all times throughout the Lease Period remain the
sole and exclusive property of the Owner (but subject to the leasehold
interest of Simon) and the Lessee
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shall not do or permit to be done anything which could prejudice or
jeopardise the rights of the Owner or Simon in respect of the Goods.
13. RETURN OF THE GOODS
13.01 Subject to the provisions of Clause 16 the Lessee shall, at the risk
and expense of the Lessee, return the Goods to Simon, at such address
in the U.K. as Xxxxx xxx require, at the termination of the Lease
Contract, howsoever occurring, unencumbered and in good working
condition (reasonable wear and tear only excepted).
13.02 Simon shall be entitled to require the Lessee at the expense of the
Lessee to store the Goods in a suitable place and in reasonably
protective conditions for a period not exceeding 180 days following
the termination of the Lease Contract howsoever arising. During such
period the Goods shall not be used, modified or in any way interfered
with and at the end of such period the Lessee shall return the Goods
to Simon in accordance with its obligations under Clause 13.01.
13.03 In the event of any breach by the Lessee of the provisions of Clauses
13.01 or 13.02 Simon and/or the Owner shall be entitled to repossess
the Goods without notice and for that purpose shall be entitled to
enter upon any land or premises on or in which the Goods are or are
reasonably believed to be situated and to remove or sever the Goods.
13.04 Without prejudice to any other remedies or rights which may be
available to Simon if the Lessee commits any breach of the terms or
conditions of the leasing of any Goods hereunder and fails to remedy
the same within 21 days of being required so to do by Simon shall have
the right immediately to terminate the lease thereof and the
provisions of this Clause 13 shall thereupon apply.
13.05 Should the Ship be under requisition for hire at the end of the Lease
Period:
(a) the lease of the Goods under this Agreement shall (unless
otherwise agreed between the Parties hereto) nevertheless be
terminated at such end but without prejudice to the accrued
rights of the parties, including, without prejudice to the
generality of the foregoing, the obligations of the Lessee
contained in Clause 23.3 of the Charter, and Simon shall be
entitled to receive and retain any requisition hire payable in
respect of the Goods and in respect of the period from the
expiry of termination of the Lease Period;
(b) the Lessee shall, if it is prevented by reason of the
requisition for hire from redelivering the Goods under Clause
18 of the Charter or under Clause 13 hereof, be relieved from
its obligations so to do, but shall consult with Simon as to
the redelivery of the Goods when the Ship is released from
such requisition; and
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(c) after such release the Lessee shall be given a reasonable
opportunity of removing the Goods.
14. DEFAULT AND BREACH
14.01 If the Lessee repudiates this Master Agreement by a breach of its
obligations hereunder and/or under any Lease Contract Xxxxx xxx by
notice to the Lessee accept such breach as terminating this Master
Agreement and all Lease Contracts entered pursuant hereto or as
terminating any Lease Contract in relation to which any such breach
has occurred.
14.02 Without prejudice to the generality of Clause 14.01 above Simon and
the Lessee hereby agree that any of the following events or any of the
Termination Events shall constitute a repudiatory breach by the Lessee
of this Master Agreement and each Lease Contract entered into pursuant
hereto:
(i) if the Lessee shall fail to pay any sum payable by it
hereunder or under any Lease Contract in full when due or on
demand within two (2) Banking Days of such due date or date of
demand (as the case may be); or
(ii) if the Lessee shall commit or cause to be committed any breach
of any other term or condition of this Master Agreement or any
Lease Contract provided that in the case of a breach capable
of remedy Simon shall have first given written notice to the
Lessee specifying the fault or breach complained of and
requiring the same to be remedied within fourteen (14) days of
the service of the said notice and the Lessee shall have
failed to comply therewith; or
(iii) if the Lessee shall convene any meeting of creditors or make
any assignment or arrangement for the benefit of creditors
generally or if a meeting be convened for the purpose of
considering a resolution that the Lessee be wound up
voluntarily or if the Lessee shall fail to answer the
allegations contained in any petition for a winding up of the
Lessee followed by an amalgamation or reconstruction on terms
approved by Simon or if an order to wind up the Lessee shall
be made or if any application for the appointment of an
administrator of the Lessee shall be presented or a receiver
shall be appointed over all or any part of the Lessee's
undertaking or assets; or
(iv) if any obligation of the Lessee under any hire purchase or
credit or conditional sale or lease agreement or any loan,
debt, or other financial obligation of the Lessee shall not be
paid at maturity or when due or if the same shall become due
prior to its specified maturity by reason of default, or if
the Lessee shall fail to meet its obligations under any
guarantee or indemnity when properly called upon to do so; or
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(v) if any diligence, distress or execution (other than arrestment
to found jurisdiction) shall be issued, levied or sued out
upon or against any part of the property of the Lessee and is
not discharged within 7 days; or
(vi) if the Lessee shall cease or threaten to cease to carry on its
business (other than for the purpose of a reconstruction or
amalgamation the terms of which have received the previous
consent in writing of Simon) or shall transfer or dispose of
all or a substantial part of its assets or if all or a
substantial part of the assets of the Lessee are appropriated
by any governmental authority; or
(vii) if the Lessee shall be unable or shall admit in writing its
inability to pay its lawful debts as they fall due or shall
present a petition to be wound up or shall seek any
reorganization or an arrangement with creditors to take
advantage of any insolvency law; or
(viii) if the Lessee shall do or permit to be done anything which
prejudices or jeopardises the rights of Simon or the Owner in
or over any of the Goods; or
(ix) if the Lessee shall fail to give Simon not less than six
weeks' notice in writing of any intended change in the
ownership of the issued share capital of the Lessee; or
(x) except with the prior written consent of Simon less than the
whole, or none, of the legal and beneficial ownership of the
issued share capital of the Lessee shall be owned directly or
indirectly by Exploration Holdings Limited.
14.03 (a) Upon Voluntary Termination or upon Simon electing to terminate
this Master Agreement (which Simon has the right to do)
following receipt by Simon of notice of any intended change in
the ownership of the issued share capital of the Lessee or
upon acceptance by Simon of any repudiatory breach by the
Lessee under this Master Agreement or under any Lease Contract
as terminating this Master Agreement and all or any other
Lease Contracts entered into pursuant hereto, then Simon shall
be entitled to recover on demand a Termination Sum in relation
to each Lease Contract so terminated.
(b) Without prejudice to the provisions of Clause 5.04 hereof a
Termination Sum shall be calculated as at the termination of
leasing under any Lease Contract and shall be a sum equal to
the aggregate of:
(i) all arrears of Rental and all other amounts accrued
due under the terms of this Master Agreement and such
Lease Contract;
(ii) all Rentals which would have been payable but for
such termination during the unexpired term of the
Primary Period, but discounted to
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present day value at the discount rate specified in
the Lease Contract to reflect early receipt;
(iii) any costs and expenses incurred by Simon in locating,
repossessing or recovering or valuing the Goods or
collecting any payments due under this Master
Agreement and/or the Lease Contract or otherwise in
obtaining the due performance of the obligations of
the Lessee under this Master Agreement and each Lease
Contract;
(iv) all losses, costs and expenses suffered or incurred
by Simon in consequence of such termination in
repaying or otherwise redeploying funds borrowed to
finance the acquisition of the Goods or in
terminating or otherwise redeploying any agreements
relating to such borrowing including, without
limitation, interest rate or currency swap
agreements, foreign exchange contracts or other
contracts for differences. The certificate of the
Owner or Simon as to such losses, costs and expenses
shall be final and binding on the Lessee in the
absence of manifest error in the case of a
certificate of the Owner and prima facie evidence of
such losses, costs and expenses in the case of a
certificate of Simon.
(v) an amount equal to interest on all sums specified in
paragraphs (i), (ii), (iii) or (iv) of this
sub-clause (b) at the Interest Rate from the date on
which such payments become due until the date of
payment thereof
and in the case of paragraphs (iii), (iv) and (v) of this
sub-clause (b) shall include any and all sums payable by Simon
to the Owner under any RBS Lease Contract or the RBS Master
Leasing Agreement in respect of any losses costs and expenses
of a similar nature which Simon is obliged to pay to the Owner
thereunder.
(c) If a Lease Contract terminates as a result of an
Event of Default Xxxxx xxx, but shall not be obliged
(unless the Termination Sum payable shall have been
paid in full and the Ship is to be sold at the same
time in accordance with the provisions of Clause 25.3
of the Charter) to take such steps as in its sole
opinion are reasonable to sell the Goods in the six
months following such termination and thereafter may
dispose of the same for scrap. Simon shall, provided
any Termination Sum due has been paid in full pay to
the Lessee an amount equal to 98% of the net sale
proceeds of the Goods (if any).
14.04 Upon the termination of the leasing of the Goods under any Lease
Contract pursuant to Clause 13.04 or Clauses 14.01 or 14.02 the Lessee
shall cease to be in possession of the Goods with the consent of Simon
and shall, upon receiving notice of such termination from Simon,
forthwith cease to use the Goods for any purpose and return
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or store the same in accordance with Clauses 13.01 or 13.02, failing
which the provisions of Clause 13.03 shall apply. Provided however
that if at the date of such termination the Goods are part of the Ship
the provisions of Clause 25.1 of the Charter shall apply.
14.05 If the Lessee is in breach of any of the obligations under this Master
Agreement or the Lease Contracts and Simon incurs any expenditure in
respect of the Goods or in obtaining the due performance by the Lessee
of its obligations under this Master Agreement or the Lease Contract,
Simon shall be entitled (without prejudice to any other rights it may
have hereunder) to recover such expenditure from the Lessee together
with interest thereon at the Interest Rate from the date on which such
expenditure is incurred to the date of payment thereof to Simon.
15. INTEREST FOR LATE PAYMENT
15.01 Any payment due under this Master Agreement or due under any Lease
Contract from the Lessee to Simon, whether by way of rental, damages,
reimbursement, indemnity or otherwise howsoever, not received for
cleared money value by Simon on the due date (which shall, in the case
of a payment by way of reimbursement or indemnity, be deemed to be the
date on which Simon incurred the expenditure the subject of such
reimbursement or indemnity) shall bear interest (which shall accrue
both before and after any decree or judgment) at the rate of 2 per
cent per annum over The Royal Bank of Scotland plc (or any successor
thereof) Base Rate for the time being calculated on a day-to-day basis
("the Interest Rate") compounded quarterly from the due date. The
Lessee shall on demand, pay to Simon the amount of such interest free
from all deductions or withholdings of whatsoever nature.
16. VOLUNTARY TERMINATION SALES AGENCY
16.01 Following Voluntary Termination and provided that the Lessee has duly
performed all the terms and conditions of this Master Agreement and of
the Lease Contract and provided the Lessee is not in default under any
other Lease Contract entered into pursuant to this Master Agreement,
then upon expiry of the Lease Period the Lessee is appointed agent on
behalf of Simon and shall act as sub-agent of the Owner (unless agreed
in writing between Simon and the Lessee) to arrange a sale of the
Goods which are the subject of the Lease Contract in accordance with
the terms and conditions of this Clause and shall not be obliged to
return the Goods to Simon pursuant to Clause 13.01 pending sale or
termination of this agency appointment.
16.02 Any sale of the Goods shall be to a third party which is not dealing
as a consumer for the purposes of the Unfair Contract Terms Act 1977
(and is not connected with the Lessee or Simon within the meaning of
the Income and Corporation Taxes Act 1988 as from time to time amended
or re-enacted) at an arm's length price to be agreed with Simon before
the sale is finalised.
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16.03 Any sale of the Goods shall include terms to the following effect:
(i) that all conditions, representations or warranties, expressed
or implied by statute or otherwise, whether as to the state or
quality of the Goods or as to description, fitness for
purpose, merchantable quality or otherwise, are, so far as is
permitted by law, expressly excluded as between the owner and
the buyer save in respect of the warranty that the Owner shall
be passing such title to the Goods as received from the Lessee
and Simon free from any Encumbrances created by the Owner; and
(ii) that the sale is conditional upon the Owner first recovering
possession of the Goods.
Provided always that nothing in this Clause 16.03 shall prevent the
Lessee including any other representations and warranties to be given
directly by the Lessee to a buyer in connection with such sale.
The Lessee agrees to indemnify and keep indemnified the Owner and
Simon against any liability, claim, demand, proceeding or expense
which may result from any claim (whether justified or not) being made
against the Owner or Simon in respect of or concerning the Goods by a
purchaser of the Goods or any third party following any sale by the
Lessee as agent of Simon and sub-agent of the Owner and such indemnity
shall continue after the determination of this Master Agreement and/or
Lease Contract for any reason.
16.04 The appointment of the Lessee as agent of Simon and sub-agent of the
Owner shall determine on the date which is 6 months after the expiry
of the Lease Period (as that term is defined in the relevant Lease
Contract). If the Goods have not been sold within the period of the
agency then Simon or the Owner will direct the Lessee to deliver the
Goods to a place specified by the Owner or Simon with all removal,
transport, necessary insurance and storage costs being payable by the
Lessee. The Lessee will ensure that the Goods when so delivered shall
be complete and in reasonable working conditions (fair wear and tear
excepted). If Simon or the Owner has to bear any expenses in carrying
out the removal and storage of the Goods when remedying any defect in
them then Simon or the Owner shall be entitled to interest at the
Interest Rate from the time the Owner incurs such expenses until the
same are reimbursed to Simon or the Owner (as appropriate) by the
Lessee.
16.05 In the event of any breach by the Lessee of any of its obligations
under this Clause or of any Lease Contract current while the agency is
continuing, then the appointment of the Lessee as agent of Simon and
sub-agent of the Owner and the authority of the Lessee to act as agent
of Simon and sub-agent of the Owner may forthwith be terminated by
notice given by Simon or the Owner to the Lessee.
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16.06 If the Lessee is successful in arranging a sale of the Goods as
sub-agent for Simon then the Lessee shall be entitled by way of rebate
of rentals for acting as sub-agent of Simon to a sum equal to the
percentage of the net sale proceeds stated in the Lease Contract. The
net sale proceeds shall be the gross sale proceeds of the sale less
any reasonable expenses (excluding all Value Added Tax). Any
reasonable expenses incurred by the Lessee in arranging the sale which
shall be reimbursed out of the gross sale proceeds. Unless otherwise
agreed with Simon the Lessee shall arrange that the gross sale
proceeds are paid to the Owner.
17. CHARTER SALES AGENCY
17.01 Provided that the Lessee has duly performed all the terms and
conditions of this Master Agreement and of the Lease Contract and
provided the Lessee is not in default under any other Lease Contract
entered into pursuant to this Master Agreement, then upon expiry of
the Lease Period other than by way of Voluntary Termination the Lessee
is appointed sub-agent on behalf of Simon (unless agreed in writing
between the Owner Simon and the Lessee) to arrange a sale of the Goods
which are the subject of the Lease Contract as part of the Ship in
accordance with the terms and conditions of Clause 3.6 of the Charter
and shall not be obliged to return the Goods to Simon pursuant to
Clause 13.01 pending sale or termination of this agency appointment.
17.02 If the Lessee is successful in arranging a sale of the Goods as
sub-agent for Simon then the Lessee shall be entitled by way of rebate
of rentals for acting as agent to a sum equal to the percentage of the
net sale proceeds stated in the Lease Contract. The net sale proceeds
shall be that part of the Net Sale Proceeds which relates to the
Goods, calculated in accordance with clause 3.5 of the Charter but
excluding all Value Added Tax, less any reasonable expenses incurred
by the Lessee in arranging the sale which shall be reimbursed by Simon
to the extent that Simon receives such payment from the Owner. Unless
otherwise agreed with Simon the Lessee shall arrange that the gross
sale proceeds are paid to the Owner.
17.03 It is confirmed that the Lessee's obligations to insure the Goods and
all other obligations of the Lessee with respect to the Goods under
the terms of this Master Agreement and the Lease Contract, including
the obligation to pay rental, shall continue until the Goods have been
sold in accordance with the terms of Clause 16 or this Clause 17 or
redelivered to the Owner.
18. RIGHTS AND WAIVER
18.01 No right or remedy conferred upon Simon by this Agreement shall be
exclusive of any remedy provided for herein or by law and all such
rights and remedies shall be cumulative.
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18.02 The exercise of any power or remedy or the enforcement of any right
shall not be construed as a waiver of the right to exercise any other
power or remedy or to enforce any other right. Any forbearance or
indulgence granted by Simon shall not constitute a waiver of the right
or remedy of Simon in respect of which such forbearance or indulgence
is granted and Simon shall be entitled to exercise such right or
remedy at any time thereafter.
19. NOTICES
19.01 Every notice, request, demand or other communication under this Master
Agreement shall:
(a) be in writing delivered personally or by prepaid first class
letter, telex or facsimile transmission (confirmed in the case
of a telex or facsimile transmission, by prepaid first class
letter sent within 24 hours of despatch but so that the
non-receipt of such confirmation shall not affect in any way
the validity of the telex or facsimile transmission in
question);
(b) be deemed to have been received, subject as otherwise provided
in this Master Agreement, in the case of a telex, at the time
of despatch with confirmed answerback of the addressee
appearing at the beginning and end of the communication, in
the case of a facsimile transmission, at the time of despatch
with confirmation that the communication was well received
(provided that, in the case of a telex or facsimile
transmission, if the date of dispatch is not a business day in
the country of the addressee it shall be deemed to have been
received at the opening of business on the next such business
day), and in the case of a letter, when delivered personally
or five (5) days after being put in the post;
(c) be sent:
(1) to Simon to:
Simon-Horizon Limited
Xxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxx
Xxxx XX0 0XX
Telex: 896050 EXPLOR G
Fax: 0000 000000
(Attention: Company Secretary)
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with a copy to:
Simon Engineering PLC
Xxxxx Xxxxx
Xxxx Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxx XX0 ORT
Telex: 665923 SIMENG G
Fax: 000 000 0000
(Attention: Company Secretary)
(2) to the Lessee to:
Horizon Exploration Limited
0 Xxxxxxxx Xxxx
Xxxxxxxxx
Xxxx XX0 0XX
Telex: 957840 EXPLOR G
Fax: 0000 000000
(Attention: Company Secretary)
or to such other address, telex number of facsimile number as is
notified by one party to the other under this Master Agreement.
20. GENERAL
20.01 This Master Agreement shall be governed by and construed in accordance
with English Law and the parties hereby submit to the exclusive
jurisdiction of the High Court of Justice in England.
20.02 Save as hereinafter provided, neither Simon nor the Lessee may assign
or otherwise transfer any of its rights or obligations under this
Master Agreement without the prior written consent of the other party
hereto PROVIDED ALWAYS that Xxxxx xxx with the consent of the Owner
assign or otherwise transfer any or all of its rights under, and the
benefit of, this Master Agreement without the consent of the Lessee,
except that Simon shall not without the prior written consent of the
Lessee (such consent not to be unreasonably withheld or delayed) so
assign or otherwise transfer any or all of such rights and benefits to
an assignee who is a Business Competitor of HEL (as such term is
defined in and for the purposes of the Agreement). In the event of
any such assignment or transfer by Simon such assignment or transfer
shall not impose any
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greater liabilities on the Lessee towards Simon than those liabilities
which the Lessee would have had to Simon at the time of such
assignment had no such assignment or transfer taken place.
20.03 The Lessee undertakes to provide Simon copies of its audited balance
sheet and profit and loss account as soon as possible after the ending
of its financial year or other accounting period and to supply such
other information about the Goods, their insurance, condition and
maintenance as Xxxxx xxx from time to time reasonably require.
The Lessee shall promptly provide to the Owner following a request by
Simon or the Owner with financial and other information concerning the
Lessee and the Guarantors and their respective affairs as the Owner
(or Simon, in order to comply with its obligations pursuant to the RBS
Master Leasing Agreement and the RBS Lease Contracts) may from time to
time reasonably require.
20.04 The Lessee represents and warrants with Simon that it will not by
entering into or performing its obligations under any Lease Contract
be in breach of or default under any mortgage or other agreement or
commitment whatsoever binding on the Lessee.
AS WITNESS the hands of the representatives duly authorised on behalf of the
parties hereto the day and year first written above.
SIGNED BY SIGNED BY
--------------------------- ------------------------------
SIGNATURE /s/ [illegible signature] SIGNATURE /s/ X.X. Xxxxxxxx
DESIGNATION DESIGNATION
------------------------- ----------------------------
for and on behalf of Simon for and behalf of the Lessee
in the presence of: in the presence of:
WITNESS /s/ Xxxxxx X. Xxxxxx WITNESS /s/ Xxxxxx X. Xxxxxx
FULL NAME Xxxxxx X. Xxxxxx FULL NAME
------------------------------
ADDRESS ADDRESS
----------------------------- --------------------------------
------------------------------------ ---------------------------------------
------------------------------------ ---------------------------------------
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SCHEDULE 1
List of Documents and Evidence
1. A copy certified by a Director or the Secretary of the relevant person
to be a true, complete and up-to-date copy, of the Certificate of
Incorporation and Memorandum and Articles of Association of the Lessee
and each of the Relevant Parties.
2. A copy, certified by a Director or the Secretary (or similar officer)
of the relevant person to be a true copy, and as being in full force
and effect and not amended or rescinded, of resolutions of the board
of directors of each of the Lessee and the other Relevant Parties:
(i) approving the transactions contemplated by such of the
Relevant Documents to which the relevant person is a party;
(ii) authorizing a person or persons to sign and deliver on behalf
of the relevant person or, as the case may be, authorizing the
sealing by the relevant person of the Relevant Documents to
which it is a party and any notices or other documents to be
given pursuant thereto;
3. A copy certified by a Director or the Secretary (or similar officer)
of the relevant person to be a true copy, and as being in full force
and effect and not revoked or withdrawn, of any power of attorney
issued by the relevant person pursuant to the said resolutions.
4. A list, certified as true, complete and up to date by a Director or
the Secretary (or similar officer) of each of the Relevant Parties of
its directors and officers.
5. Evidence that all governmental and other licenses, approvals,
consents, registrations and filings necessary for any matter or thing
contemplated by the Relevant Documents and for the legality, validity,
enforceability, admissibility in evidence and effectiveness thereof
have been obtained or effected on an unconditional basis and remain in
full force and effect (or, in the case of effecting of any
registrations and filings, that arrangements satisfactory to Simon
have been made for the effecting of the same within any applicable
time limit).
6. Evidence that on Delivery, the Ship is and will remain insured in
accordance with the provisions of the Charter and all requirements of
the Charter in respect of such insurance have been complied with.
7. Evidence that on delivery, the Goods will be insured in accordance
with the provisions of this Master Leasing Agreement and all
requirements of this Master Leasing Agreement in respect of such
insurance have been complied with.
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8. The agreement duly executed by the Lessee.
9. The Guarantees duly executed by the Guarantors.
10. An Assignment Agreement between Simon and the Lessee in respect of the
Management Agreement.
11. Such legal opinions as Xxxxx xxx require in relation to the laws of
any jurisdiction to which any Relevant Party is or may be subject or
which may affect the performance of the obligations of any Relevant
Party.
12. The Deed of Assignment as so defined in the Agreement.
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