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10.9.4
DATED 15th July 1994
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SIMON-HORIZON LIMITED
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HORIZON EXPLORATION LIMITED
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ASSIGNMENT AGREEMENT
Relating to
A Ship Management Agreement
dated 19th December, 1990 (as amended)
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XXXXXXX & XXXXXXX
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
2
THIS ASSIGNMENT AGREEMENT is made the 15th day of July 0000
X X X X X X X:
(1) SIMON-HORIZON LIMITED registered no. 467924 whose registered office is
at Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx, Xxxx XX0 0XX (the
"Assignors); and
(2) HORIZON EXPLORATION LIMITED registered no. 2804983 of 0 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxx XX00 0XX (the Assignees)
WHEREAS:
(A) By a management agreement (the "Management Agreement") dated 19th
December, 1990 as amended by a First Addendum thereto of the same date
the Assignor appointed Ervik Marine Services A/S as manager (the
"Manager") of the Vessel M.V. "SIMON LABRADOR".
(B) The Assignor has by three "side letters" (the "Side Letters") each
signed by Simon Petroleum Technology and addressed to and
countersigned by the Manager by way of agreement with the terms
thereof and dated 19th December, 1990 agreed certain other matters
(C) The Assignor and Assignee have agreed subject to the satisfaction of
certain terms and conditions that the Assignor shall (inter alia)
charter the M.V. "Simon Labrador" (the "Vessel") to the Assignee by
way of sub-demise and that the Assignee shall (inter alia) assume and
be responsible for the discharge of all liabilities of the Assignor in
respect of the Vessel including under and in connection with the
Management Agreement
(D) It has been agreed that, upon and subject to the terms and conditions
of this Agreement, the Assignor will assign to the Assignee all rights
and benefits of the Assignor under the Management Agreement.
NOW THEREFORE IT IS HEREBY AGREED as follows:
1. Definitions
(a) Terms defined in the Management Agreement shall, unless
otherwise defined herein, have the same meanings in this
Agreement and, in addition to the expressions defined above,
in this Agreement and in the Recitals:
"Agreement" means this agreement as amended or modified from
time to time and includes all other documents supplemental to,
collateral with, or derived from this Agreement;
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"Assigned Rights" means all of the right, title and interest
of the Assignor in and to and all benefits of the Assignor
under the Management Agreement and the Side Letters; and
"Effective Date" means 30th June, 1994.
(b) Unless the context forbids, any references in this Agreement
to:
(1) an "agreement" also includes a concession, contract,
deed, franchise, license, treaty or undertaking and
any waiver or release (in each case whether oral,
written, implied or by operation of law);
(2) a "consent" also includes an approval, authorization,
exemption, filing, license, order, permission,
recording or registration (and references to
obtaining consents shall be construed accordingly);
(3) a "law" includes common or customary law and any
decree, judgment, legislation, order, regulation,
statute, treaty or other legislative measure, in each
case of any jurisdiction whatever (and "legislation",
"lawful" and "unlawful" shall be construed
accordingly);
(4) a "person" includes any individual, company,
corporation, firm, partnership, joint venture,
association, organization or trust (in each case,
whether or not having separate legal personality) and
references to any of the same shall include a
reference to the others;
(5) "writing" or "written" includes any means of visible
reproduction;
(6) words denoting the singular shall include the plural
and vice versa;
(7) any legislation are to that legislation as from time
to time amended or re-enacted, and to any document,
agreement or deed whatsoever shall include the same
as it or they may at any time be amended, varied or
supplemented;
(8) Clauses, references to clauses hereof; and
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(9) subclauses are, unless otherwise stated, references
to subclauses of the Clause in which the reference
appears.
(c) Clause headings and sub-headings are for convenience only and
shall not affect the construction hereof.
2. Assignment
(a) With effect from the Effective Date the Assignor hereby
assigns (subject to the terms and conditions of this
Agreement) to the Assignee without recourse the Assigned
Rights together with all (subject as otherwise provided
herein) rights and benefits accruing to the Assignor in
relation thereto under the Management Agreement, such
assignment being made in consideration of the undertakings by
the Assignee contained in Clause 3 below.
(b) Immediately following the execution and delivery of this
Agreement by the parties hereto they shall jointly give notice
to the Manager of the assignment to the Assignee of the
Assigned Rights.
3. Undertakings
In consideration of the assignment by the Assignor to the Assignee of the
Assigned Rights, the Assignee agrees with effect from the Effective Date to
accept the assignment in Clause 2 without recourse, and undertakes to perform
the obligations of the Assignor arising on or after the Effective Date under
the Management Agreement and in respect of the Assigned Rights and the Side
Letters and to be bound by the terms of the Management Agreement and the Side
Letters as if originally named therein as a party thereto in place of the
Assignor.
In addition, the Assignee undertakes in consideration of the assignment
aforesaid that it will use all reasonable endeavors to supply at the cost of
the Assignor all information that may reasonably be requested by the Assignor
in respect of any matter or thing that may have occurred in connection with the
Management Agreement and/or the Side Letters prior to the Effective Date and
otherwise to assist the Assignor in connection with any dispute or discussion
with the Manager in respect of any matter or thing prior to the Effective Date
arising out of the Management Agreement and/or the Side Letters.
4. Excluded Rights
(a) The Assignee shall not be entitled to sums due or owing by or
claimed against the Manager arising, accruing or paid prior to
the Effective Date to the Assignor in connection filth the
Assigned Rights and all such amounts
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(together "Retained Amounts") shall belong to and be retained
by the Assignor.
(b) If any amount (other than any Retained Amounts) is received or
recovered by the Assignor in respect of the Assigned Rights on
or after the Effective Date, the Assignor shall promptly (and
in any event within 15 days of receipt) pay such amount to the
Assignee.
(c) If any amount of the Retained Amounts is received or recovered
by the Assignee, the Assignee shall promptly (and in any event
within 15 days of receipt) pay such amount to the Assignor.
5. Payments
Any payment to be made between the Assignor and the Assignee hereunder shall be
made in the currency in which such amount was received by the party so paying
and shall be made in immediately available funds and clear of all withholdings
for or on account of any taxes, counterclaims or set-offs or otherwise
howsoever arising.
6. Representations
The Assignee represents and warrants to the Assignor that:
(a) it has full power and authority and has taken all action
necessary to execute this Agreement and all other documents to
be executed in accordance herewith and no governmental
authorisations are required in connection with the execution,
delivery or performance of this Agreement and such other
documents; and
(b) this Agreement constitutes its legal, valid and binding
obligations.
7. Regulations and other Requirements
(a) Neither the Assignor nor any of the Assignor's directors,
officers, employees or agents shall be responsible for the due
execution, legality, validity, effectiveness, enforceability
or sufficiency of the Management Agreement or the Side
Letters, or any notice, certificate or document executed or
delivered thereunder nor for any action taken or omitted to be
taken thereunder or for any loss, liability or expense
suffered or incurred in consequence thereof by the Assignee
and the Assignee hereby acknowledges the absence of any such
obligation as is referred to in this sub-clause.
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(b) The Assignee acknowledges that the Assignor is not agent for
the Manager or Royal Bank of Scotland (Industrial Leasing)
Limited ("RBS") nor does the Assignor have any responsibility
for either of them.
(c) The Assignor makes no representation or warranty and assumes
no responsibility with respect to any statement, warranty or
representation by RBS or the Manager or by any other person in
or in connection with the Management Agreement or the Side
Letters or in any notice, certificate or document executed
thereunder or with respect to the performance by either of
them or any other person of any of its or their respective
obligations under or in relation to the Management Agreement
or the Side Letters or any notice, certificate or document
executed or delivered thereunder; in particular, without
limitation, if the Manager shall fail to perform any of its
obligations under the Management Agreement or any document
relating thereto, the Assignee shall have no recourse to the
Assignor in respect of such failure and the Assignee hereby
acknowledges the absence of any such obligation as is referred
to in this sub-clause.
(d) The Assignor and the Assignee agree and acknowledge that the
Assignor does not have and shall not at any time hereafter
have any obligation to repurchase or accept a re-assignment of
the Assigned Rights or any part thereof.
8. Indemnity by Assignee
(a) The Assignee shall indemnify the Assignor and keep the
Assignor indemnified from and against all losses, costs,
expenses, demands and damages whatsoever which the Assignor
may suffer or incur in respect of any liability or obligation
arising on or after the Effective Date under the Management
Agreement and the Side Letters in respect of any period
commencing on or after the Effective Date and in respect of
any other of the Assigned Rights or any part thereof.
(b) This indemnity shall continue in full force and effect
notwithstanding completion of the other matters referred to in
or connected with this Agreement.
(c) The certificate of the Assignor as to the amount of any such
loss, cost, expense, demand or damage suffered or incurred by
it as aforesaid shall be prima facie evidence of such matters.
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9. Indemnity by Assignor
(a) Save as otherwise provided in Clauses 5 and 8, the Assignor
shall indemnify the Assignee and keep the Assignee indemnified
from and against all losses, costs, expenses, demands and
damages whatsoever which the Assignee may suffer or incur in
respect of any liability or obligation arising at any time
under the Management Agreement in respect of any period prior
to the Effective Date and in respect of the Assigned Rights or
any part thereof notwithstanding that such liability or
obligation may not actually become due and payable until on or
after the Effective Date.
(b) This indemnity shall continue in full force and effect
notwithstanding completion of the other matters referred to in
or connected with this Agreement.
(c) The certificate of the Assignee as to the amount of any such
loss, cost, expense, demand or damage suffered or incurred by
it as aforesaid shall be prima facie evidence of such matters.
10. Notices
All notices, demands or other communications under or in connection with this
Agreement shall be sent by letter, telefax or telex:
(a) if to the Assignor
Xxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxx
Xxxx XX00 0XX
Attn: Company Secretary
Telex No: 896050 EXPLOR G
Fax No: 0000 000000
(b) if to the Assignee to its office at
0 Xxxxxxxx Xxxx
Xxxxxxxxx
Xxxx XX0 0XX
Attn: Company Secretary
Telex No: 957840 EXPLOR G
Fax No: 0000 000000
or to such other address or telex number as such party may
from time to time notify to the other party hereto
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11. Costs
All costs and expenses (including legal fees) incurred in connection with the
negotiation, preparation and execution of this Agreement and in the completion
of the transactions contemplated hereby shall be for the account of the party
incurring the same.
12. Severability
If any provision hereof shall be held to be void, illegal or unenforceable it
shall be deemed severable from the remaining provisions hereof which shall
remain in full force and effect.
13. Assignments
This Agreement shall be binding upon and shall enure to the benefit of each of
the parties hereto and their respective successors and assigns.
14. Counterparts
This Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
15. Further Assurance
Each party will promptly execute and deliver all further instruments and
documents, and take all further action, as may be necessary or appropriate to
implement the terms of this Agreement.
16. Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with English
law and any dispute or difference shall be referred to the exclusive
Jurisdiction of the English Courts.
IN WITNESS whereof this Agreement has been executed by the parties hereto the
day and year first above written.
THE ASSIGNOR
SIMON HORIZON LIMITED
By: /s/ [illegible signature]
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THE ASSIGNEE
HORIZON EXPLORATION LIMITED
By: /s/ X.X. Xxxxxxxx
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