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EXHIBIT 10.6
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") entered
into as of February 14, 1995, effective December 31, 1994 (the
"Effective Date)" by and among PHILADELPHIA INVESTMENT
CORPORATION OF DELAWARE, a Delaware corporation ("PICD");
PHILADELPHIA DRILLING COMPANY, a Delaware corporation ("Seller");
PHILADELPHIA FALCON DRILLING CORPORATION, a Delaware corporation
and affiliate of Seller ("PFDC"); XXXXXX OCEANICS DRILLING
COMPANY, a Texas corporation ("Buyer"); XXXXXX OCEANICS, INC., a
Texas corporation ("Xxxxxx") and the wholly owning parent of
Buyer; XXXXXX FALCON CO., a Delaware corporation and affiliate of
Buyer ("AFC"); XXXXXX XXXXXX CO., a Delaware corporation and
affiliate of Buyer ("AHC"); EAGLE OCEANICS, INC., a Texas
corporation and affiliate of Buyer ("Eagle"); XXXXXX DEEP SEAS,
LTD., a Texas limited partnership ("Deep Seas, Ltd." or the
"Partnership") comprised of Eagle Oceanics, Inc., Xxxxxx Xxxxxx
Co. and PDC; and XXXXXX FALCON I, LTD. ("Falcon, Ltd."), a Texas
limited partnership comprised of AFC and PFDC.
R E C I T A L S :
WHEREAS, Seller owns a fifty percent (50%) limited
partnership interest in Deep Seas, Ltd. ("Deep Seas LP
Interest");
WHEREAS, Xxxxxx is the holder of one promissory note from
Deep Seas, Ltd. as further described in Section 1.01(a) as the
Xxxxxx PAN;
WHEREAS, PICD is the holder of two promissory notes from
Deep Seas, Ltd. as further described in Section 1.01(b) as the
PICD PANS;
WHEREAS, PICD desires to contribute the PICD PANS to Deep
Seas, Ltd. as an equity contribution, and Xxxxxx desires to
contribute the Xxxxxx PAN to Deep Seas, Ltd. as an equity
contribution, all on the terms and subject to the conditions set
forth herein;
WHEREAS, Seller desires to sell, transfer, and assign the
Deep Seas LP Interest to Buyer, and Buyer desires to purchase the
Deep Seas LP Interest from Seller and assume certain of Seller's
obligations under the Ancillary Agreements on the terms and
subject to the conditions set forth herein;
WHEREAS, PFDC, as an affiliate of Seller and a limited
partner in Falcon, Ltd., and PICD as the wholly owning parent of
Seller, have entered into certain of the Ancillary Agreements, as
defined in Section 1.03 hereof to facilitate the Deep Seas, Ltd.
financing and to promote the consistent operations of Deep Seas,
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Ltd. and Falcon Ltd., in consideration of the relationships
between Seller and PICD and PFDC;
WHEREAS, Falcon, Ltd. is dissolving as of the Effective Date
hereunder and will cease to exist;
WHEREAS, upon Seller's sale of the Deep Seas LP Interest
herein and the dissolution of Falcon, Ltd., PICD and PFDC are no
longer willing to facilitate Deep Seas, Ltd. in such a manner;
WHEREAS, the parties hereunder have agreed to assume, amend
or terminate Seller's, PFDC's and PICD's obligations under the
Ancillary Agreements, as appropriate; and
WHEREAS, in connection with and incident to the purchase and
sale of the Deep Seas LP Interest, Seller, PFDC and PICD desire
to transfer, and Buyer and Xxxxxx desire to assume, certain
rights, obligations and liabilities of Seller, PFDC and PICD with
respect to the Partnership, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
respective covenants, agreements, representations, and warranties
hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
I. PRE-CLOSING PURCHASE AND SALE; ASSUMPTION OF LIABILITIES
1.01. Pre-Closing Actions. At the Closing (as defined
in Section 1.05 hereof) and subject to the terms and conditions
hereinafter set forth, the following actions shall be deemed to
have occurred immediately prior to the Effective Date:
(a) Xxxxxx shall contribute and deliver to AHC and shall
cause AHC to contribute and deliver to Deep Seas, Ltd.
as an additional contribution to capital pursuant to
the Partnership Agreement the certain Partnership
Advance Note dated April 26, 1988 with an Allonge
thereto dated September 26, 1990 and a Second Allonge
thereto dated February 1, 1991 made by Deep Seas, Ltd.
payable to the order of Xxxxxx ("Xxxxxx PAN") in an
original principal amount of $10,000,000 plus any
accrued interest as set forth in such note, and all
collateral security therefor, as increased from time to
time to reflect additional advances made by Xxxxxx to
Deep Seas, Ltd., including without limitation accrual
of management fees. The Xxxxxx PAN had an outstanding
balance of $19,883,503.48 on the Effective Date.
(b) PICD shall contribute and deliver to Seller which shall
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contribute and deliver to Deep Seas, Ltd., as an
additional contribution to capital pursuant to the
Partnership Agreement those certain promissory notes as
follows: (i) Senior Partnership Advance Note dated
April 26, 1988 with an Allonge thereto dated September
26, 1990 and Second Allonge thereto dated February 1,
1991 ("Senior PICD PAN") made by Deep Seas, Ltd.
payable to the order of PICD in the original principal
amount of $1,037,500 with a balance on the Effective
Date of $4,194,235.15, and (ii) Partnership Advance
Note dated April 26, 1988 with an allonge thereto dated
September 26, 1990 and Second Allonge thereto dated
February 1, 1991 made by Deep Seas, Ltd. payable to the
order of PICD (Junior PICD PAN") in an original
principal amount of $10,000,000 plus any accrued
interest as set forth in each such note, and all
collateral security therefor as increased from time to
time to reflect additional advances made by PICD to
Deep Seas, Ltd. (the Senior PICD PAN and the Junior
PICD PAN are collectively referred to herein the "PICD
PANS"). The Junior PICD PAN has a balance outstanding
on the Effective Date of $13,784,566.45.
1.02. Purchase of Deep Seas LP Interest. Subject to the
terms and conditions hereinafter set forth, the following actions
shall occur at the Closing (as defined in Section 1.05 hereof):
(a) Seller shall sell, transfer, assign, and deliver to
Buyer, and Buyer shall purchase from Seller, all as of
the Effective Date, the Deep Seas LP Interest, free and
clear of any and all liens and encumbrances. Seller
shall deliver to Buyer a certificate evidencing the
Deep Seas LP Interest accompanied by Assignment and
Assumption Agreements transferring the Deep Seas LP
Interest.
(b) Buyer shall deliver to Seller the Cash Consideration,
as defined in Section 1.04 hereof, for such Deep Seas
LP Interest in immediately available funds by wire
transfer to a bank account to be designated by Seller.
1.03. Assumption of Liabilities. In addition to the
Cash Consideration as defined in Section 1.04 hereof, to be paid
for the transfer of the Deep Seas LP Interest to Buyer, Buyer and
Xxxxxx as appropriate, agree to assume at the Closing from the
Effective Date, and thereafter to pay, perform and discharge all
liabilities and obligations of Seller, PFDC and PICD under the
notes, instruments, agreements and undertakings described in
Schedule 2 hereto (the "Assumed Ancillary Agreements") (the
"Ancillary Agreements" are set forth on Schedule 1 hereto).
Concurrently with such assumption, Seller, PFDC or PICD, as
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appropriate, shall assign all of its rights, privileges and
powers under the Assumed Ancillary Agreements to Buyer, AFC or
Xxxxxx as appropriate. Additionally, all of the parties hereto
agree to mutually terminate at the Closing certain agreements and
undertakings of Seller, PICD, PFDC and the other parties thereto
described in Schedule 3 hereto (the "Terminated Ancillary
Agreements"). PICD shall pay all costs and fees through the
Closing Date arising out of the assignment, assumption or
termination of the Ancillary Agreements hereunder (other than
fees of Buyer's counsel).
1.04. Consideration. In consideration for the transfer
of the Deep Seas LP Interest by Seller to Buyer at the Closing:
Buyer shall (i) pay to Seller the amount of ONE MILLION TWO
HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($1,250,000.00); (ii)
pay to Seller the amount of ONE HUNDRED EIGHTY THOUSAND AND
NO/100 DOLLARS ($180,000.00) which is agreed to be one-half of
the working capital of the Partnership on the Effective Date
(clauses (i) and (ii) shall be referred to herein as (the "Cash
Consideration")); and (iii) assume from Seller, PFDC and PICD the
obligations under the Assumed Ancillary Agreements in the manner
contemplated by Section 1.03 above, and thereafter pay, perform
and discharge such obligations under the Assumed Ancillary
Agreements.
1.05. Closing Place and Date. The closing of the
transactions contemplated by this Agreement (the "Closing") shall
take place at the offices of Xxxxxx & Xxxxxxxx, 0000 XxXxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 10:00 A.M., Houston time, on
March 31, 1995, or if all conditions of Closing set forth in
Article IV hereof have earlier been satisfied or waived, at such
time within five (5) business days after all such conditions
shall be satisfied or waived as the parties hereto may mutually
agree upon (the "Closing Date").
II. REPRESENTATIONS AND WARRANTIES
2.01. Representations and Warranties of Seller, PICD and
PFDC. PICD, PFDC and Seller jointly and severally represent and
warrant to Buyer and Xxxxxx as of the date of this Agreement and
on the Effective Date, as follows:
(a) Organization, Good Standing, Power. Each of PICD, PFDC
and Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the
State of Delaware with all requisite corporate power
and authority to enter into and perform its obligations
under this Agreement.
(b) Authorization. The execution, delivery, and
performance of this Agreement have been duly authorized
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by all requisite corporate action of each of PICD, PFDC
and Seller. This Agreement is a legal, valid, and
binding obligation of each of PICD, PFDC and Seller,
enforceable against each in accordance with its terms,
subject to applicable bankruptcy, reorganization,
insolvency, and similar laws affecting creditors'
rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at
law).
(c) Title. PDC shall transfer to Buyer at Closing, title
to the Deep Seas LP Interest, free and clear of all
liens, pledges, encumbrances, charges, claims, security
interests, and any other adverse claims.
(d) No Conflicts. Neither the execution, delivery, or
performance of this Agreement by Seller, PFDC and PICD,
nor the consummation of the transactions contemplated
hereby by Seller, PFDC and PICD (i) will constitute a
violation of or default under, or conflict with, any
note, bond, mortgage, indenture, deed of trust, lease,
license agreement, or other instrument or obligation to
which each Seller, PFDC or PICD is a party or by which
Seller, PFDC or PICD is bound, or constitute a
violation of, or conflict with, any provision of
Seller's, PFDC's or PICD's respective Certificate of
Incorporation or Bylaws or any order, writ, injunction,
decree, statute, rule, or regulation of any
governmental, administrative, or regulatory body
applicable to Seller, PFDC or PICD or (ii) will require
any consent, approval, notice, or filing with respect
to any of the foregoing.
(e) Finders and Brokers. PICD, or its designated
representatives, has engaged Xxxxxxx & Company
International to assist and advise PICD in connection
with the sale of the Deep Seas LP Interest. PICD will
be responsible for all fees of Xxxxxxx & Company
International and in this connection, and hereby
indemnifies and agrees to hold Buyer, AFC and Xxxxxx
harmless from any liability for any commission, fee, or
expense payable to Xxxxxxx & Company International in
this connection. Except as provided above, no person,
firm, or corporation has or will have, as a result of
any act or omission by Seller, PICD or PFDC, any valid
right, interest, or claim against or upon Buyer, AFC or
Xxxxxx for any commission, fee, or other compensation
as a finder or broker, or in any similar capacity, in
connection with the transactions contemplated by this
Agreement.
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(f) The PICD PANS. (i) PICD is the owner and holder of the
PICD PANS and the indebtedness evidenced thereby;
(ii) on the Effective Date, the principal and all
accrued interest, if applicable, balances outstanding
on the PICD PANS was $4,194,235.15 for the Senior PICD
PAN and $13,784,566.45 for the Junior PICD PAN; and
(iii) the PICD PANS are not presently assigned,
mortgaged or hypothecated to any other party, provided
however, immediately prior to Closing they will be
contributed by PICD to PDC to contribute to Deep Seas,
Ltd. as of the Effective Date.
(g) No Defaults. Neither Seller, PFDC nor PICD is in
violation of any term or provision of the Certificate
or Agreement of Limited Partnership of Deep Seas, Ltd.
(the "Partnership Agreement") of any other of the
Ancillary Agreements to which each of them is a party.
2.02. Representations and Warranties of Buyer and
Xxxxxx. Buyer, AFC, AHC, Eagle and Xxxxxx jointly and severally
represent and warrant to Seller, PFDC and PICD as of the date of
this Agreement and as of the Effective Date, as follows:
(a) Organization, Good Standing, Power. Each of Buyer,
Xxxxxx and Eagle is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Texas with all requisite corporate power
and authority to enter into and perform its obligations
under this Agreement. Each of AFC and AHC is a
corporation duly organized, validly existing and in
good standing under the laws of Delaware.
(b) Authorization. The execution, delivery, and
performance of this Agreement have been duly authorized
by all necessary corporate action of each of Buyer,
AFC, AHC, Eagle and Xxxxxx. This Agreement is a legal,
valid, and binding obligation of each of Buyer, AFC,
AHC, Eagle and Xxxxxx, enforceable against Buyer, AFC,
AHC, Eagle and Xxxxxx in accordance with its terms,
subject to applicable bankruptcy, reorganization,
insolvency, and similar laws affecting creditors'
rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at
law).
(c) No Conflicts. Neither the execution, delivery, or
performance of this Agreement by Buyer, AFC, AHC, Eagle
and Xxxxxx, nor the consummation of the transactions
contemplated hereby by Buyer, AFC, AHC, Eagle and
Xxxxxx, will constitute a violation of or default
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under, or conflict with, any note, bond, mortgage,
indenture, deed of trust, lease, license, agreement, or
other instrument or obligation to which Buyer, AFC or
Xxxxxx is a party or by which Buyer, AFC, AHC, Eagle or
Xxxxxx is bound or constitute a violation of or
conflict with any provision of Buyer's, AFC's, AHC's,
Eagle's or Xxxxxx'x Articles of Incorporation, Bylaws,
or similar corporate document, or any order, writ,
injunction, decree, statute, rule, or regulation of any
governmental, administrative or regulatory body
applicable to Buyer, AFC, AHC, Eagle or Xxxxxx or will
require any consent, approval, notice, or filing with
respect to the foregoing.
(d) The Xxxxxx PAN. (i) Xxxxxx is the owner and holder of
the Xxxxxx PAN and the indebtedness evidenced thereby;
(ii) on the Effective Date, the principal balance
outstanding and all accrued interests on the Xxxxxx PAN
was $19,883,503.48; and (iii) the Xxxxxx PAN is not
presently assigned, mortgaged or hypothecated provided,
however, immediately prior to Closing it will be
contributed by Xxxxxx to AHC, general partner of Deep
Seas, Ltd., which will contribute the Xxxxxx PAN to
Deep Seas, Ltd. as of the Effective Date.
(e) Purchase of Deep Seas LP Interest Without View to
Distribution. The Deep Seas LP Interest is being
purchased by Buyer for its own account for investment
and not for the purpose of, or with a view to, the
resale or distribution thereof. Buyer acknowledges
that the sale of the Deep Seas LP Interest hereunder
has not been registered under the Securities Act of
1933, as amended, and that no further sales thereof can
be made unless registration or exemption from
registration under such Act is available.
(f) Finders and Brokers. No person, firm, or corporation
has or will have, as a result of any act or omission by
Buyer, AFC, AHC, Eagle or Xxxxxx, any valid right,
interest, or claim against or upon Seller, PFDC or PICD
for any commission, fee, or other compensation as a
finder or broker, or in any similar capacity, in
connection with the transactions contemplated by this
Agreement.
(g) Qualified Person. Buyer is a Qualified Person as
defined in Section 13.8 of the Partnership Agreement.
III. COVENANTS PENDING CLOSING
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From the date hereof until the earlier of the Closing Date
or the termination of this Agreement pursuant to Article V
hereof, PICD, Seller, PFDC, Buyer, AFC and Xxxxxx agree and
covenant as follows:
3.01. Satisfaction of Closing Conditions. Each of
Buyer, AFC, AHC, Eagle, Xxxxxx, PICD, PFDC and Seller shall use
all reasonable efforts to bring about the satisfaction of the
conditions of Closing specified in Article IV hereof as they
relate to such party, and otherwise to consummate this Agreement
and the transactions contemplated hereby. Each of Buyer, AFC,
AHC, Eagle, Xxxxxx, PICD, PFDC and Seller will cooperate and
furnish such information as may reasonably be required in order
to obtain any necessary consents or approvals of third parties to
such consummation, including without limitation consents required
pursuant to the Ancillary Agreements.
3.02. No Sale or Encumbrance of Deep Seas LP Interest.
Seller and PICD shall not sell, transfer, pledge, or encumber, or
agree to sell, transfer, pledge, or encumber, the Deep Seas LP
Interest or the PICD PANS except pursuant to this Agreement.
3.03. Operations. Seller shall continue to hold Deep
Seas LP Interest in the ordinary course of business at all times
on or prior to the Closing Date, except as otherwise described or
contemplated herein and except in circumstances as to which Buyer
shall concur in writing. By way of amplification and not
limitation, except as provided in the preceding sentence, Seller
shall not cause the Partnership on or prior to the Closing Date
to:
(a) Amend its certificate or agreement of limited
partnership;
(b) Except as otherwise described herein or contemplated
hereby, commit or omit to do any act or omission which
would cause a breach of any agreement, contract, or
commitment, which breach would have a material adverse
effect on the financial condition, results of
operations, or business of the Partnership;
(c) Violate any law, statute, rule, governmental
regulation, or order, which violation would have a
material adverse effect on the financial conditions,
results of operations, or business of the Partnership;
3.04. Press Releases. Xxxxxx, AFC, Buyer, PICD, PFDC
and Seller shall consult with each other with regard to all
publicity or releases proposed to be issued by any of them at or
prior to the Closing concerning this Agreement or the
transactions contemplated hereby. Neither Xxxxxx, AFC, AHC,
Eagle, Buyer, PICD, PFDC nor Seller shall issue any press release
PAGE 89
or other public statement relating to the transactions
contemplated hereby without the prior consent of the others,
except as otherwise required by law (in which event copies shall
be furnished to the other prior to, or contemporaneously with,
the dissemination thereof).
IV. CONDITIONS OF CLOSING
4.01. Buyer, AFC, AHC, Eagle and Xxxxxx Conditions. The
obligations of Buyer, AFC, AHC, Eagle and Xxxxxx under this
Agreement are subject, at their option, to compliance by Seller,
PFDC and PICD in all material respects with the covenants to be
performed by Seller, PFDC and PICD, respectively, as set forth in
Article III hereof, the contribution of the PICD PANS pursuant to
Section 1.01 hereof, the delivery of Deep Seas LP Interest to
Buyer pursuant to Section 1.02 hereof, and to the satisfaction of
the following conditions:
(a) Each of Seller, PFDC and PICD shall have delivered a
certificate to Buyer, dated as of the Closing Date,
stating that the representations and warranties made by
Seller, PFDC and PICD in Section 2.01 hereof are true
and correct as of the Closing Date.
(b) (i) No action or proceeding shall have been instituted
before a court or other governmental body by any
person, governmental agency, or public authority to
restrain or prohibit the transactions contemplated by
this Agreement; and (ii) no governmental agency shall
have given notice to the effect that consummation of
the transactions contemplated by this Agreement would
constitute a violation of any law or that it intends to
commence proceedings to restrain consummation of the
transactions contemplated hereby.
(c) Xxxxxx, AFC, AHC, Eagle and Buyer shall have received
from Xx. Xxxx X. Xxxxxxx, counsel to Seller, PFDC and
PICD, an opinion dated as of the Closing Date in
substantially the form of that attached hereto as
Exhibit A.
(d) All necessary consents (in form and substance
satisfactory to Seller and Buyer) to the transaction
contemplated hereby required to have been obtained from
the parties to the Ancillary Agreements, the
Partnership Agreement and the Amended and Restated
Master Loan Restructuring Agreement ("ARMLRA") dated
November 12, 1992 by and among Deep Seas, Ltd., Texas
Commerce Bank National Association, Federal Deposit
Insurance Corporation, Chemical Bank and Xxxxxx (and
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any assignee thereof) shall have been obtained and PICD
shall have paid the reasonable fees and expenses of
counsel to Chemical Bank, as Agent, in connection
therewith.
(e) Simultaneous with the Closing hereunder (i) Falcon,
Ltd. shall have sold its assets to Xxxxxx Oceanics
Pacific Ltd. and (ii) Falcon, Ltd. shall have dissolved
and distributed its assets in accordance with that
certain Partnership Dissolution Agreement dated of even
date herewith, effective December 31, 1994.
(f) The Terminated Ancillary Agreements shall be terminated
without liability to the parties thereunder.
4.02. Seller Conditions. The obligations of Seller,
PFDC and PICD under this Agreement are subject, at its option, to
compliance by Buyer, AFC, AHC, Eagle and Xxxxxx in all material
respects with the covenants to be performed by Buyer, AFC, AHC,
Eagle and Xxxxxx as set forth in Article III hereof, the
contribution of the Xxxxxx PAN pursuant to Section 1.01 hereof,
the assumption of the Assumed Ancillary Agreements and the
payment of the Cash Consideration pursuant to Sections 1.03 and
1.04, respectively, and to the satisfaction of each of the
following conditions:
(a) Each of Buyer, AFC, AHC, Eagle and Xxxxxx shall have
delivered a certificate to Seller, dated as of the
Closing Date, stating that the representations and
warranties made by Buyer, AFC, AHC, Eagle and Xxxxxx
under this Agreement are true and correct as of the
Closing Date.
(b) (i) No action or proceeding shall have been instituted
before a court or other governmental body by any
person, governmental agency, or public authority to
restrain or prohibit the transactions contemplated by
this Agreement; and (ii) no governmental agency shall
have given notice to the effect that consummation of
the transactions contemplated by this Agreement would
constitute a violation of any law or that it intends to
commence proceedings to restrain consummation of the
transactions contemplated hereby.
(c) PICD, PFDC and Seller shall have received from Xxxxxx &
Xxxxxxxx, P.C., counsel to Buyer, AFC, AHC, Eagle and
Xxxxxx, an opinion dated as of the Closing Date in
substantially the form attached hereto as Exhibit B.
(d) All necessary consents (in form and substance
satisfactory to Seller and Buyer) to the transactions
contemplated hereby required to have been obtained from
PAGE 91
the parties to the Ancillary Agreements, the
Partnership Agreement and ARMLRA (or any assignee
thereof) shall have been obtained.
(e) Simultaneous with the Closing hereunder (i) Falcon,
Ltd. shall have sold its assets to Xxxxxx Oceanics
Pacific Ltd. and (ii) Falcon, Ltd. shall have dissolved
and distributed its assets in accordance with that
certain Partnership Dissolution Agreement dated of even
date herewith, effective December 31, 1994.
(f) The Assumed Ancillary Agreements shall be assumed by
Buyer, AFC, AHC, Eagle or Xxxxxx, as appropriate.
(g) The Terminated Ancillary Agreements shall be terminated
as of the Effective Date without liability to the
parties thereunder.
4.03. Conditions Satisfied. If the Closing takes place,
all conditions precedent thereto shall be deemed to have been
waived or satisfied.
V. TERMINATION
5.01. Events of Termination. This Agreement may be
terminated on or prior to the Closing Date as follows, and in no
other manner:
(a) By mutual written agreement of Buyer and Seller; or
(b) By Buyer, AFC, AHC, Eagle or Xxxxxx by written notice
to Seller, PFDC and PICD, if the conditions set forth
in Section 4.01 hereof shall not have been complied
with or performed in any material respect, or by Seller
or PICD by written notice to Buyer, AFC, AHC, Eagle and
Xxxxxx, if the conditions set forth in Section 4.02
hereof shall not have been complied with or performed
in any material respect, and, in either case, such
noncompliance or nonperformance shall not have been
cured or eliminated (or by its nature cannot be cured
or eliminated) on or before March 31, 1995 or such
later date, if any, as Seller, PFDC and PICD and Buyer,
AFC, AHC, Eagle and Xxxxxx may agree to in writing.
5.02. Effect of Termination; Expenses. In the event
that this Agreement shall be terminated pursuant to Section 5.01
hereof, all further obligations of the parties hereto under this
Agreement (other than pursuant to this Section 5.02) shall
terminate without further liability or obligation of either party
PAGE 92
to the other party hereunder. Except as specifically set forth
in Section 1.03 hereof, each party hereto will pay all costs and
expenses incident to its negotiation and preparation of this
Agreement and to its performance of and compliance with all
provisions hereof to be performed or complied with by such party,
including the fees, expenses, and disbursements of its counsel
and accountants and any fees or disbursements payable to brokers
or other entities retained by or on behalf of such party.
VI. OTHER COVENANTS OF THE PARTIES
6.01. Indemnification by Buyer, AFC, AHC, Eagle and
Xxxxxx. Buyer, AFC, AHC, Eagle and Xxxxxx, jointly and
severally, agree for a period of two (2) years after the Closing
Date to indemnify, defend and hold Seller, PFDC and PICD harmless
from and against any and all losses, liabilities, claims,
demands, lawsuits, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) of every kind,
nature and description (collectively, "Claims") as to which
Seller, PFDC or PICD has given Buyer or Xxxxxx notice, sustained
by Seller, PFDC or PICD, based upon, arising out of or otherwise
in respect of (i) the material inaccuracy of any representation
or warranty, or the breach of any covenant or agreement of Buyer
or Xxxxxx contained in this Agreement; and (ii) Buyer's, AFC's,
AHC's, Eagle's or Xxxxxx'x performance or non-performance after
the Closing of, or under, any Assumed Ancillary Agreement. The
foregoing indemnifications are given solely for the purpose of
protecting Seller, PFDC and PICD and shall not be deemed to be
extended to, or interpreted in a manner to confer any benefit,
right or cause of action upon, any third party and nothing
contained in this Section 6.01 shall expand or enlarge any
representation, warranty, covenant, agreement or other
undertaking of Buyer, AFC, AHC, Eagle or Xxxxxx, or limit or
restrict any exception to or disclaimer of any such
representation, warranty, covenant, agreement or undertaking,
made or provided for elsewhere in this Agreement.
6.02. Indemnification by Seller. Seller, PFDC and PICD,
jointly and severally, agree for a period of two (2) years after
the Closing Date to indemnify, defend and hold Buyer, AFC, AHC,
Eagle and Xxxxxx harmless from and against any and all Claims as
to which Buyer, AFC, AHC, Eagle or Xxxxxx has given Seller, PFDC
or PICD notice, sustained by Buyer, AFC, AHC, Eagle or Xxxxxx,
based upon, arising out of or otherwise in respect of (i) the
material inaccuracy of any representation or warranty, or the
breach of any covenant or agreement of Seller, PFDC or PICD
contained in this Agreement; and (ii) Seller's, PFDC's or PICD's
performance or nonperformance prior to the Closing of, or under,
any Assumed Ancillary Agreement transferred to Buyer, AFC, AHC,
Eagle or Xxxxxx hereunder. The foregoing indemnifications are
PAGE 93
given solely for the purpose of protecting Buyer, AFC and Xxxxxx
and shall not be deemed to be extended to, or interpreted in a
manner to confer any benefit, right or cause of action upon, any
third party and nothing contained in this Section 6.02 shall
expand or enlarge any representation, warranty, covenant,
agreement or other undertaking of Seller, PFDC and PICD, or limit
or restrict any exception to or disclaimer of any such
representation, warranty, covenant, agreement or undertaking,
made or provided for elsewhere in this Agreement.
6.03. Expiration of Representations, Warranties and
Covenants. Notwithstanding anything in Sections 6.01 or 6.02 to
the contrary, and except as provided in this sentence, the
representations and warranties set forth in Sections 2.01 and
2.02 hereof shall expire and terminate two years after the
Closing Date, following which date no party may bring an action
or notify the other of a Claim with respect thereto under this
Agreement or otherwise.
VII. MISCELLANEOUS
7.01. Notices. Any notice, communication, request,
reply, or advice (hereinafter a "notice") in this Agreement
provided or permitted to be given or made by either party to the
other party hereunder must be in writing (including by facsimile
transmission) and may be given or served by depositing the same
in the United States mail, postage prepaid, and registered or
certified with return receipt requested, by delivering the same
in person to the person or entity to be notified, by sending the
same by a recognized courier service for next day delivery, or by
facsimile transmission when received and electronically
confirmed. Notice deposited in the mail in the manner
hereinabove described shall be effective on the third business
day after such deposit. Notice given in any other manner
permitted hereunder shall be effective upon receipt. For
purposes of notice, the addresses of the parties shall be as
follows:
If to Buyer, AFC, AHC, Eagle or Xxxxxx:
Xxxxxx Oceanics, Inc.
15835 Park Ten Place Drive
P.O. Box 218350
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
PAGE 94
With a copy to:
Xxxxxx & Xxxxxxxx
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
or to such other addresses as to which Buyer may have advised
Seller in writing.
If to Seller, PFDC or PICD:
One Beaver Valley Road
P. O. Xxx 00000
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: President
With a copy to:
CIGNA International Finance Inc.
S-215
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Secretary
or to such other addresses as to which the Seller may have
advised Buyer in writing.
7.02. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Texas.
7.03. Headings. Section and other headings contained in
this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement.
7.04. Waivers. Except as otherwise provided herein, the
failure by any party to enforce any of its rights hereunder shall
not be deemed to be a waiver of such rights, unless such waiver
is an express written waiver which has been signed by the waiving
party. Waiver of any one breach shall not be deemed to be a
waiver of any other breach of the same or any other provisions
hereof.
PAGE 95
7.05. Complete Agreement. This Agreement and the
Schedules and Exhibits hereto constitute the entire understanding
and agreement between the parties hereto with respect to the
subject matter hereof, and there are no agreements,
understandings, restrictions, representations, or warranties
between such parties other than those set forth herein or
therein, all other agreements and understandings being superseded
hereby.
7.06. Successors and Assigns. This Agreement shall bind
and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement may
not be transferred or assigned by either party without the prior
written consent of the other party, and shall not be construed to
confer upon or to give any person other than the parties hereto
any rights or remedies under or by reason of this Agreement.
7.07. Amendments; Severability. The parties hereto may
amend, modify, or supplement this Agreement or any Schedule or
Exhibit hereto only in such manner as may be mutually agreed upon
in writing and executed by the parties hereto. Any provision
hereof which is prohibited by or unlawful or unenforceable under
the applicable law of any jurisdiction shall as to such
jurisdiction be ineffective, without affecting any other
provision of this Agreement, or shall be deemed to be severed or
modified to conform with such law, and the remaining provisions
of this Agreement shall remain in full force, provided that the
purpose of this Agreement thereby can be effected.
7.08. Gender and Number. All personal pronouns used in
this Agreement shall include the other gender and the neuter
gender, and the singular shall include the plural, and vice
versa, whenever and as often as may be appropriate.
7.09. Counterparts. This Agreement may be executed in
one or more counterparts and by different parties in separate
counterparts, with the same effect as if all parties hereto had
executed the same document. Each counterpart so executed and
delivered shall be deemed to be an original, and all such
counterparts shall be construed together and shall constitute one
and the same Agreement.
PAGE 96
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
PHILADELPHIA INVESTMENT
CORPORATION OF DELAWARE
By CIGNA International Finance
Inc., its Agent
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
PHILADELPHIA DRILLING COMPANY
By CIGNA International Finance
Inc., its Agent
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
PHILADELPHIA FALCON DRILLING
COMPANY
By CIGNA International Finance
Inc., its Agent
By:/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXX OCEANICS DRILLING
COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX OCEANICS, INC.
By: /s/ Xxxxx X. Xxxxxxx
PAGE 97
Xxxxx X. Xxxxxxx
Vice President
XXXXXX FALCON CO.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX XXXXXX CO.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
EAGLE OCEANICS, INC.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX DEEP SEAS, LTD.
By Xxxxxx Xxxxxx Co., its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX FALCON I, LTD.
By Xxxxxx Falcon Co., its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
