1
EXHIBIT 10.9.9
AGREEMENT
THIS AGREEMENT is made this 15th day of July, 1994 between
(1) SIMON-HORIZON LIMITED registered number 467924 ("Simon") a company
incorporated in England and Wales with registered office at Xxxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxx, Xxxx XX0 0XX; and
(2) SIMON PETROLEUM TECHNOLOGY LIMITED registered number 2720413 ("SPT") a
company incorporated in England and Wales with registered office at
Xx'x-x-Xxxx, Xxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxx; and
(3) SIMON ENGINEERING PLC registered number 52665 ("SEL") a company
incorporated in England and Wales with registered office at Xxxxx
Xxxxx, Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx XX0 ORJ; and
(4) HORIZON EXPLORATION LIMITED registered number 2804983 ("HEL") a
company incorporated in England and Wales with registered office at 0
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx, XX00 0XX.
1. Interpretation
1.1 In this Agreement, including the Schedules:
1.1.1 The following words and expressions shall have the following
meanings unless they are inconsistent with the context:
"Additional Equipment" the equipment referred to in Clause 3.2.1;
"Agreement" this agreement;
"Assignment Agreement" the assignment agreement in Agreed Form of
even date herewith made between Simon and HEL
in respect of the Management Agreement;
"Business Competitor a competitor of HEL or of Exploration
of HEL" Holdings Limited or any of such company's
subsidiaries from time to time in relation
to the provision of offshore seismic data
acquisition services;
1
2
"Charter" the charterparty in Agreed Form by sub-demise
of even date herewith made between Simon and
HEL in respect of the Vessel;
"Connected" for the purposes of Clause 3.2.5 has the
meaning set out in Section 249 of the
Insolvency Xxx 0000;
"Deed of Assignment" the Deed of Assignment of insurances of Goods
subject to the Leases in Agreed Form of even
date herewith between Simon and HEL;
"Effective Date" 30th June, 1994;
"Ervik" Ervik Marine Services A/S;
"Excluded Equipment" the equipment so defined in the Charter;
"Guarantee" the continuing cross-guarantee and indemnity
in Agreed Form to be entered into by the
companies comprising the HEL Group in favor
of Simon, SPT and SEL;
"HEL Group" Horizon Seismic Inc., Exploration Holdings
Limited, HEL and each of their subsidiaries
from time to time;
"Leases" the sub-leases in Agreed Form of even date
herewith entered into between Simon and HEL
in respect of seismic and other equipment to
be used on and in connection with the Vessel;
"Management Agreement" the management agreement dated 19th December
1990, together with the First Addendum
thereto also dated the same date between
Simon and Ervik;
"Master Lease Agreement" the master lease agreement in Agreed Form of
even date herewith entered into between Simon
and HEL;
"Owner" Royal Bank of Scotland (Industrial Leasing)
Limited;
"RBS Charter" the charterparty by way of Demise dated 20th
December, 1990 and made between the Owner and
Simon;
"RBS Leases" if the Master Lease Agreement dated 31st
March, 1992 and the Lease Contracts Nos.
RS920/0017 and
2
3
RS920/0022 each dated 31st March, 1992, all
made between the Owner and Simon;
"Retained Equipment" the equipment so defined in the Charter;
"Sale Agreement" the undated "Agreement for Sale of a
Business" executed in July 1993 between
Simon, SPT and HEL;
"SEL Guarantee" the Guarantee by Simon Engineering Plc in
favour of the Owner dated 20th December, 1990
"Simon Labrador" the M.V. "Simon Labrador" (ex M.V. "Seaway
and "Vessel" Labrador");
"Subsidiaries" shall have the meaning ascribed thereto
pursuant to section 736 of the Companies Xxx
0000;
"Syntron" Syntron Europe Limited, a company supplying
and repairing marine seismic equipment;
"Syntron Letter" letter from SPT to HEL dated 18th August 1993
agreeing to pay for streamer refurbishment on
deferred terms.
1.1.2 Reference to any document being in the "Agreed Form" means in
the form or in the terms agreed between the parties'
respective solicitors or attornies and references to any
document include references to that document as the same may
be amended from time to time.
1.1.3 All references to a statutory provision shall be construed as
including references to:
(a) any statutory modification, consolidation,
re-enactment (whether before or after the
date of this Agreement) for the time being in
force;
(b) all statutory instruments or orders made
pursuant to it; and
(c) any statutory provisions of which it is a
consolidation, re-enactment or modification.
1.1.4 Except where the context otherwise requires, words denoting
the singular include the plural and vice versa; words denoting
any gender include all genders; words denoting persons include
firms and corporations and vice versa.
3
4
1.1.5 Unless otherwise stated, a reference to a clause, sub-clause
or Schedule is a reference to a clause or a sub-clause of, or
a Schedule to, this Agreement.
2. Agreement
2.1.1 HEL hereby undertakes for itself and to procure on the part of
each of the companies of the HEL Group the due exercise and
performance by HEL and of each of such companies of all of its
or their respective duties, obligations and liabilities under
the terms of the Charter, the Master Lease Agreement, the
Leases, the Guarantee, the Management Agreement, the
Assignment Agreement, the Deed of Assignment and this
Agreement (together the "HEL Documents") strictly in
accordance with such terms. Subject only to the provisions of
Clause 4.1 and notwithstanding the provisions of any other HEL
Document, HEL hereby agrees unconditionally and irrevocably to
indemnify each of Simon, SPT and SEL and keep it and each of
them indemnified fully against any and all liabilities,
obligations, losses, damages, penalties, actions, judgements,
suits, costs, expenses or disbursements which may be imposed
on, incurred or suffered by or asserted against any of Simon,
SPT and SEL under or which are in any way related to the RBS
Charter, the RBS Leases, the Management Agreement, the SEL
Guarantee, the Syntron Letter, the Vessel, its ownership or
operation arising on or after the Effective Date in respect of
any period commencing on or after the Effective Date. In
addition, HEL hereby agrees unconditionally and irrevocably to
indemnify each of Simon, SPT and SEL and keep it and each of
them indemnified fully against any and all liabilities,
obligations, losses, damages, penalties, actions, judgements,
suits, costs, expenses or disbursements which may be imposed
or incurred or suffered by or asserted against any of Simon,
SPT and SEL which directly or indirectly result from or are in
any way connected with or related to any act or omission under
or default by HEL or any HEL Group Company in the performance
of any of its obligations thereunder or under the HEL
Documents or any of them. Notwithstanding the other
provisions of this Agreement or any provision of any other of
the HEL Documents, nothing contained herein or therein shall
avoid, exclude or limit in any way the liability of HEL in
respect of any act or omission for which HEL would have been
liable but for the entering into of the HEL Documents and the
transactions contemplated thereby.
2.1.2 Each of Simon, SPT and SEL shall give prompt notice to HEL of
any action commenced against it or any claim or demand made
upon it in respect of which indemnity may be sought pursuant
to the indemnity in Clause 2.1.1. HEL may participate at its
own expense in the defence of any such action, claim or
demand. If it so elects within a reasonable time after
receipt of such notice, HEL may assume the defence of such
action claim or demand with legal advisers chosen by it and
approved by Simon, SPT and SEL (or the relevant one or more of
them against or upon whom such action, claim or demand is
4
5
made) unless they or the relevant one or more of them
reasonably object to the assumption on the grounds that there
may be legal defences available to them or it which are
different from or in addition to those available to HEL. If
HEL so assumes the defense of such action claim or demand HEL
shall not be liable for the fees and expenses of more than one
legal adviser or firm of legal advisers of Simon, SPT and SEL
or the relevant one or more of them incurred thereafter in
connection therewith. In no event shall HEL be liable for the
fees of more than one legal adviser or firm of legal advisers
of Simon or SPT or SEL in connection with any one action,
claim or demand or separate but similar or related actions in
the same jurisdiction arising out of the same general
allegations or circumstances. HEL shall not be liable to
indemnify the relevant one or more of Simon, SPT and SEL for
any settlement of any action, claim or demand effected without
the consent of HEL (such consent not to be unreasonably
withheld or delayed).
2.1.3 HEL shall pay to Simon and/or SPT and/or SEL (as the case may
be) on first demand such sum or sums as it or they may certify
as being payable to them pursuant to the indemnity in Clause
2.1.1. Any certificate by Simon and/or SPT and/or SEL (as the
case may be) as to the amount of such costs shall, in the
absence of manifest error, be conclusive and binding upon HEL
and the HEL Group and each member company thereof.
2.1.4 All payments pursuant to the indemnity referred to in Clause
2.1.1 shall be free and clear of and without deduction or
withholding for any tax of any nature now or hereafter imposed
by any country or any sub-division or taxing authority thereof
or therein or any federation or organization of which such
country is a member. If any such payment shall be subject to
any such tax or if HEL shall be required to make any such
deduction or withholding, HEL shall pay to Simon and/or SPT
and/or SEL such additional amount as may be necessary to
enable Simon and/or SPT and/or SEL to receive, after all
deductions and withholdings, a net amount equal to the full
amount payable thereunder. As used in this Clause the term
"tax" includes all levies, imposts, duties, charges, fees,
deductions, withholdings, turnover tax, transaction tax, stamp
tax and any interest or penalties thereon and any restrictions
or conditions resulting in a charge.
2.2 HEL agrees:
2.2.1 to enter into the Charter, the Master Lease Agreement and
Leases on the date hereof;
2.2.2 (a) that the undated 1993 Management Agreement between
SPT, Simon and HEL shall terminate on the date
hereof, but without prejudice to the rights and
liabilities of the parties previously accrued; and
5
6
(b) that the undated D.P. Software License Agreement made
between SPT and HEL executed in July 1993 is hereby
renewed for a period of twelve months from 1st July
1994 at an annual rental of US$120,000 (subject to
the addition of VAT and other applicable tax) for the
first 548 ship days and then at $110 per ship day
thereafter. Such annual rental of $120,000 shall be
payable quarterly in advance in equal installments.
The first such instalment shall be payable on the
date hereof and the following installments shall be
payable on 1st October 1994, 1st January 1995 and 1st
April 1995 respectively. Rental due for days in
excess of the first 548 ship days shall be payable
monthly in arrears;
SPT agrees that it will during the period of such
license continue to support such software under the
terms of the DP Software License Agreement and shall
give to HEL not less than nine months prior written
notice of ceasing to support such software. HEL
shall give SPT not less than nine months prior
written notice of termination of the DP Software
License Agreement.
2.3 HEL hereby agrees that the terms of the undated letter agreement
regarding apportionment of insurance deductibles (a copy of which is
attached to this Agreement as Annex 1) shall cease for all purposes to
have effect on and after the Effective Date and that HEL shall have no
liability, present or future, thereunder.
2.4 Simon, SPT, SEL and HEL agree to use all reasonable endeavors to
procure that the Owner shall agree to amend the provisions regarding
the insurances of the Vessel:
2.4.1 to reflect current market conditions in relation to
deductibles; and
2.4.2 so that all losses payable thereunder shall be payable to the
Owner (except where, in relation to P & I payments such
payments are to be made to third parties who have suffered the
relevant loss if none of the parties to this Agreement has
previously paid or partly paid out such third party claim, or,
following such a payment or part payment out, where the
relevant party to this Agreement is entitled to be reimbursed
in respect thereof) regardless of the severity of the loss
sustained, but so that the Owner shall apply all sums received
which are less than L.250,000 in aggregate in respect of any
claim under the Hull and Machinery policies either by making
payment direct to contractors or yards in respect of works or
repairs done or to be done in respect of the relevant loss
payable or by payment in reimbursement of the relevant one of
Simon, SPT, SEL or HEL for sums expended by such party in
procuring the repair or works occasioned in relation to such
loss payable and so paid to the Owner.
6
7
3. Continuing Obligations of HEL
3.1 HEL hereby covenants and agrees with and for the benefit of Simon, SPT
and SEL that HEL will at all times hereafter fully perform its
obligations pursuant to the Charter, the Master Lease Agreement and
the Leases in a timely manner so as at all times to maintain and
adhere to all the terms and conditions of the RBS Charter and the RBS
Leases and maintain the same in full force and effect in accordance
with their respective terms.
3.2 HEL further undertakes to Simon, SPT and SEL that HEL will:
3.2.1 without prejudice to its obligations pursuant to the Charter
and the Leases (a) invest a minimum of US$950,000 in seismic
equipment for the Vessel within 3 months from the date of this
Agreement provided that if such investment is financed wholly
or partly by way of any leasing transaction it shall be upon
terms that such lease will be fully paid up within 18 months
from 1st June 1994 and will require only even monthly payments
on the part of the lessee (and shall not contain any balloon
payment obligations); and (b) continue to invest in the Vessel
to maintain it fit for purpose and in particular at all times
procure appropriate equipment and maintain all equipment from
time to time used on or in connection with the Vessel
sufficient to obtain three-dimensional seismic work in
accordance with current best practice and so as to remain (and
so that the Vessel shall remain) competitive in its field on
the basis (at any time and from time to time) of best
available techniques not involving excessive costs;
3.2.2 use all reasonable endeavors to procure that whenever it
invests in equipment or assets for the Vessel by way of
leasing all such leases shall be made upon xxxxx such that if
Simon shall pursuant to the terms of the Charter repossess the
Vessel, Simon shall be entitled to elect either to return such
leased assets to the respective lessors or take over the
relevant leases;
3.2.3 deliver to Simon promptly after acquiring any such equipment
referred to in Clause 3.2.1 (a) (whether purchased or leased)
details of the equipment acquired and either (where such
equipment is purchased) Bills of Sale in respect thereof so as
formally to implement such transfer of title or (where such
equipment is leased) a copy of the relevant lease contract or
contracts. HEL hereby undertakes that it will if required by
Simon forthwith upon payment out of the relevant lease or
leases deliver to Xxxxx Xxxxx of Sale in respect of any such
Additional Equipment so as to transfer title thereto to Simon.
All such equipment so transferred to Simon shall thereafter
for all purposes be deemed to be leased to HEL as if
specifically referred to in the Leases, provided that no
additional rental shall be paid in respect thereof;
7
8
3.2.4 meet the remaining payments due to Syntron for the
refurbishment of the third streamer pursuant to the Syntron
Letter and agrees that none of Simon, SPT and SEL shall have
any further liability under or pursuant to the Syntron Letter;
3.2.5 itself and will procure that HEL Group will maintain a
dividend cover of no less than four times earnings and
operating cash flows (determined in accordance with generally
accepted accounting principles in the United Kingdom) and
provide to Simon a certificate from HEL's or (if different)
HEL Group's principal auditors upon request as to the
compliance by HEL Group with such requirements. For the
purposes of this Clause, dividends shall include all
distributions and disbursements to third parties or to persons
(not being companies within the HEL Group) connected with any
company which is a member of the HEL Group from any member of
the HEL Group whether by way of dividends on ordinary shares,
repurchase of shares, cancellation of shares, management
charges and fees or otherwise but, for the avoidance of doubt,
shall not include the repayment of bona fide loans and debts.
HEL will further procure that all transactions between the HEL
Group or any company which is a member thereof with any person
connected with the HEL Group or any company which is a member
thereof shall be on arm's length terms and for full value;
3.2.6 itself and will procure that HEL Group (and any company which
shall in future become a member of HEL Group) provide cross
guarantees in Agreed Form relating to all undertakings,
covenants and obligations expressed or intended to be binding
upon HEL and the HEL Group under or pursuant to the terms of
this agreement and the documents to be entered into pursuant
hereto.
3.3 HEL undertakes to Simon, SPT ant SEL to use its best endeavors to
ensure that not later than 27th November 1994 or such later date as
Xxxxx xxx agree it will either:
3.3.1 procure the giving of a guarantee of all of its obligations to
Simon, SPT and SEL as described in this Agreement and in the
documents to be entered into pursuant hereto in form and
substance satisfactory to and by a bank acceptable to Simon,
SPT and SEL as Simon, SPT and SEL shall in their discretion
determine; or
3.3.2 refinance the Vessel entirely in such manner as shall ensure,
that neither in relation to the RBS Leases or the RBS Charter
nor in respect of any arrangements touching upon or concerning
them or the Vessel shall Simon or SPT or SEL or any other
company in the Simon Engineering Plc group of companies
thereafter have any actual or contingent liability in respect
of the Vessel whether as principal or surety or otherwise
howsoever provided that in connection with any such
refinancing the obligations of Simon and SEL
8
9
pursuant to Clause 4.1 shall be varied and instead of HEL's
obligations to pay charterhire to Simon not commencing until
the specified aggregate sum has been paid by Simon under the
RBS Charter, the obligation of Simon and SEL shall be to pay
the balance of such aggregate sum to the provider of the
relevant finance to HEL (which shall be applied in or towards
discharge of the obligations of HEL in respect of such
refinancing), but in any such case Simon and SEL shall not be
obliged to pay any moneys in any different amounts or at any
different times to the amounts and times which would have
applied under the RBS Charter unless Simon and SEL shall
otherwise so agree;
but if unable to complete such arrangements by 27th November 1994 (or
such later date as may be agreed) as aforesaid it will thereafter
continue to use its best endeavors to do so as quickly as possible
until it is able to complete such arrangements.
Provided that when and if HEL shall complete such arrangements as
described in 3.3.1 or 3.3.2 above the obligations of HEL pursuant to
3.2.5 above and Clause 12 of the Charter shall cease thereafter to
have effect (except, in the latter case, to the extent that any
consent of the Owner may be required pursuant to the RBS Charter or
RBS Leases).
4. Continuing Obligations of Simon
4.1 Each of Simon and SEL undertakes that it will after the Effective Date
continue to make payments in respect of the obligations of the
Charterer under the RBS Charter (or, when applicable, make payments
which would otherwise be for the account of HEL pursuant to any such
refinancing as is referred to in and in accordance with the provisions
of 3.3.2 above) as the same shall fall due as shall equal the
aggregate sum of L.2,336,000 and hereby agrees that provided HEL shall
not be in breach of any of its obligations to Simon under the Leases
and/or the Charter HEL's obligation to make payment of charterhire
under the Charter shall not commence until such time as the aggregate
amount of payments by Simon to the Owner after the Effective Date
shall have exceeded, in aggregate, L.2,336,000. The obligation of
Simon and SEL to pay such aggregate L.2,336,000 sum referred to above
in respect of charterhire payable after the Effective Date shall be to
pay such aggregate sum net of all adjustments of rental and cash
amounts payable as may apply or be payable in relation to the period
after the Effective Date as a result of any increase or decrease in
rental payable by Simon by way of adjustment of rental pursuant to
paragraph 4 of Schedule 3 to the RBS Charter or of any amount payable
or received by Simon pursuant to paragraph 4 of such Schedule 3.
4.2 HEL agrees that provided Simon shall notify HEL in writing of the
payment or payments to be made by Simon which will cause such
aggregate figure to be exceeded HEL will pay direct to the Owner the
balance of such payment or payments; and HEL
9
10
shall thereafter make payments to Simon in full under the Charter
strictly in accordance with the terms thereof.
4.3 Subject to any necessary consents previously having been obtained from
the Owner, HEL shall within one month of the Effective Date, and Simon
shall permit HEL to (and will at HEL's expense take all such steps as
HEL may reasonably require in connection therewith), change the name
of the Vessel provided (and HEL hereby agrees) that no future name
shall without the consent of Simon include "Simon" or otherwise imply
any continuing relationship with Simon or any company in the Simon
Engineering plc group of companies. Simon will use all reasonable
endeavors to procure the consent of the Owner to such change of name.
4.4 If the Owner shall not previously have agreed with Simon and HEL that
HEL shall have the sole right to exercise the Drop-Lock Option set out
in Clause 5.3 of Schedule 3 to the RBS Charter and incorporated into
the RBS Leases by two letters dated 30th April 1992 from the Owner's
agent (Royal Bank Leasing Limited) countersigned on behalf of Simon on
13th May 1992 in respect of each such lease Simon agrees that it will
at the request of HEL exercise such option as soon as reasonably
possible following HEL's written request to it in respect of the same.
5. Transfer of Assets
5.1 Property in and the use of assets used on or in connection with the
Vessel shall be dealt with in accordance with the provisions of this
Clause 5.
5.2 Excluded Equipment is and will remain the property of Simon, but HEL
shall be deemed to lease the Excluded Equipment upon the same terms as
equipment subject to the Leases except that no additional rental shall
be payable in respect thereof. When and if any of the Excluded
Equipment shall become obsolete HEL shall (subject to having
previously given Xxxxx xxxxx notice in writing thereof so as to permit
Simon, if it wishes, to remove such equipment) be entitled to dispose
of the same for scrap or otherwise provided that it shall, where
appropriate or necessary to comply with its obligations pursuant to
this Agreement or the Charter, replace such equipment with
appropriate, up-to-date equipment. Such replacement equipment shall,
subject to the terms of this Agreement and the Charter, be and remain
the property of HEL. Property in and title to the Excluded Equipment
shall pass to HEL upon the expiration by affluxion of time of the
Primary Period under the Charter and the Leases. Simon shall if
requested by and at the expense of HEL then execute such bills of sale
or other documents as HEL may reasonably require to complete or
evidence such transfer of title.
5.3 Retained Equipment shall be and remain at all times the property of
Simon and made available to HEL's use upon the terms of such leases or
licenses as have been or may from time to time be agreed by and
between Simon and HEL. Subject to the terms
10
11
thereof, Simon shall be entitled to remove or to require the return of
such equipment at any time and, for the avoidance of doubt, Simon
shall be entitled to exercise such rights immediately or at any time
after any "Termination Event" shall have occurred under the Charter or
either of the Leases.
5.4 HEL represents and warrants that the floating charge created by HEL
over all of its undertaking, property and assets, present and future,
in favor of National Westminster Bank plc has not crystallized and
that nothing, whether contained in the mortgage debenture dated 17th
December, 1993 creating the same, or otherwise, would cause it to
crystallize in relation to any Additional Equipment. HEL shall
acquire the Additional Equipment in accordance with the terms of
Clause 3.2 and any equipment so purchased in accordance with Clause
3.2.1(a) by HEL shall upon acquisition become the property of Simon
(and HEL shall execute and deliver to Simon such bills of sale and/or
other documents as Xxxxx xxx require to effect such transfer of title
in each case free and clear of any encumbrance). Any equipment
acquired pursuant to Clause 3.2.1(a) by means of any leasing
arrangement as provided for by Clause 3.2 shall immediately upon
payment out of such lease become the property of Simon (and HEL shall
execute and deliver to Simon such bills of sale or other documents as
Xxxxx xxx require to effect such transfer of title). Once title to
Additional Equipment has been transferred to or vested in Simon, such
equipment shall for the purposes of this Agreement thereafter be
deemed for all purposes to be Excluded Equipment and subject to the
provisions of Clause 5.2.
5.5 Equipment which is acquired by or utilised by HEL on the Vessel and
which is not Excluded Equipment, Retained Equipment or Additional
Equipment, whether owned by HEL or any party other than HEL, Simon, or
the Owner, shall (subject to Clause 5.6) remain the property of the
owner thereof. Where any such equipment shall not be the property of
HEL HEL shall at all times ensure that neither it nor any part thereof
shall become subject to the terms of Clause 5.6.
5.6 Notwithstanding any other provisions of this Agreement or the Charter,
where any equipment installed or used on the Vessel by HEL would, if
so installed or used by Simon, become the property of the Owner
pursuant to the RBS Charter and/or the RBS Leases then such equipment
shall (unless the prior agreement of the Owner to the contrary shall
have been obtained) become the property of the Owner as if the
relevant terms of the RBS Charter and/or the RBS leases applied
thereto and were set out herein mutatis mutandis so as to bind HEL to
the terms thereof.
6. Apportionments
6.1 In lieu of apportionment the expenses and earnings of the Vessel shall
be dealt with as follows as from the Effective Date:
11
12
6.1.1 Subject to 6.1.2, HEL shall be responsible for payment of the
following obligations outstanding as at the Effective Date:
(i) all creditors for goods, repairs and services
supplied or to be supplied and whether or not
invoiced prior to the date of this Agreement; and
(ii) all replacement, repair and servicing of equipment on
the Vessel.
6.1.2 HEL shall not be responsible in relation to the period ended
on the Effective Date for payment of the following
obligations:
(i) payments due to the Owner pursuant to the RBS Charter
and the RBS Leases
(ii) payments due to Ervik whether under or pursuant to
the Management Agreement or otherwise
(iii) the sum of L.125,000 due to HEL in respect of overdue
creditors and
(iv) Taxes relating to the use and operations of the
Vessel at any time prior to the Effective Date
6.1.3 Simon shall pay to HEL on the date of completion (or, if
later, the date upon which all necessary consents have been
received by Simon in relation to the transactions contemplated
hereby) a sum of not more than $100,000 in relation to
in-water equipment damaged or lost on 3rd July 1994 in full
and final settlement of any claims which HEL might otherwise
have against Simon, SPT or SEL in respect thereof
6.1.4 HEL shall be entitled to all income arising from debtors
outstanding at the Effective Date in relation to the
acquisition of seismic data, but not income arising from on
board processing services, which shall (and shall thereafter
continue to) belong to Simon in respect of the client
contracted with HEL as at the Effective Date
6.1.5 Except as otherwise provided in this Clause 6.1 and subject to
Clause 4.1, as from the Effective Date all expenses relating
to the Vessel and all income derived from its use shall be for
the account of HEL.
6.2 Notwithstanding that delivery thereof pursuant to the terms of the
Charter and the Leases respectively shall occur after the date of this
Agreement, on and after the date of this Agreement all risk of loss of
or damage to the Vessel or the goods subject to the Leases shall as
between Simon and HEL pass to HEL with effect from the Effective Date.
12
13
7. Completion
Completion shall take place at the offices of Xxxxxxx & Xxxxxxx, 00
Xxxxxxxx Xxxxxx, XX0 at midday on 15th July 1994 when all of the
documents referred to herein and as conditions precedent to the
Charter and the Master Lease shall be delivered and shall become
binding upon the parties thereto subject only to the obtaining by
Simon, SPT and SEL of the relevant consents of the Owner and their
other financiers in form and substance satisfactory to them. Simon
shall notify HEL forthwith of receipt of such consents and upon the
giving of such notice all of the terms of this Agreement and the
transactions and documents referred to herein shall become effective
and be implemented as envisaged hereby and the Vessel and the
equipment subject to the Leases shall be delivered to and accepted by
HEL. Simon and HEL shall sign date and deliver a protocol of delivery
and acceptance in Agreed Form to confirm delivery and acceptance of
the Vessel. Simon and HEL shall use all reasonable endeavors to
obtain the consent of the Owner (including confirmation in terms
reasonably acceptable to Simon and HEL of the Owner's requirements
regarding the insurances of the Vessel) within 14 days after the date
of this Agreement and Simon and SEL shall use all reasonable endeavors
to obtain the consent of certain US Noteholders within 28 days after
the date of this Agreement. If all such consents have not been
received within 28 days after the date of this Agreement the parties
shall endeavor to agree an appropriate extension of such period but in
the absence of such agreement this Agreement shall be deemed to be of
no further effect.
8. Costs
Each party to this agreement shall be responsible for its own 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.
9. Announcements
No announcement about this Agreement or any part of its subject-matter
shall be made unless agreed by all parties hereto or as required by
law or applicable regulations (including any relevant Stock Exchange
regulations) and the matters herein shall be kept strictly
confidential.
10. Assignment
10.1 The HEL Documents shall benefit and be binding on the parties, their
respective successors and any permitted assignee or transferee of some
or all of a party's rights or obligations thereunder. Any reference
in the HEL Documents to any party shall be construed accordingly.
13
14
10.2 Neither HEL nor any member of the HEL Group may assign, transfer or
otherwise dispose of all or part of its rights or obligations under
the HEL Documents.
10.3 Simon, SPT and SEL or any of them may at any time transfer all or any
part of its rights, benefits and obligations under the HEL Documents
by assigning to any other of them or to any third party (each of which
is hereinafter in this Clause called an "Assignee") which is not a
Business Competitor of HEL all or any part of its respective rights
and benefits hereunder in consideration of the agreement of each such
Assignee to perform, or to reimburse the assignor for having
performed, the assignor's obligations thereunder as so assigned to
such Assignee. If any such third party is a Business Competitor of
HEL Simon, SPT and SEL shall not, without the prior written consent of
HEL (such consent not to be unreasonably withheld or delayed) so
transfer all or any part of its respective rights, benefits and
obligations. If any of Simon, SPT and/or SEL does so transfer its
rights, benefits and obligations in accordance with the provisions of
this Clause 10, all references in the HEL Documents to it shall
thereafter be construed as a reference to the Assignee.
10.4 Simon, SPT and SEL may not disclose to a potential assignee or any
other person proposing to enter into contractual arrangements with it
in relation to the HEL Documents information about the HEL Group, the
Vessel and the HEL Documents except with the prior written consent of
HEL (such consent not to be unreasonably withheld or delayed).
11. 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 Simon or SPT
Xxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxx
Xxxx XX00 0XX
Attn: Company Secretary
Telex No: 896050 EXPLOR G
Fax No: 0000 000000
with copy to:
Simon Engineering Plc
Xxxxx Xxxxx
Xxxx Xxxx Xxxx
Xxxxxxxxx
00
15
Xxxxxxxx
XX0 ORT
Attn: Company Secretary
Telex No: 665923 SIMENG G
Fax No: 000 000 0000
(b) if to HEL
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 parties hereto.
12. Law and Jurisdiction
12.1 This agreement shall be governed by and construed in accordance with
English law.
12.2 Any dispute or difference hereunder 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.
SIMON HORIZON LIMITED
By: /s/ [illegible signature]
SIMON PETROLEUM TECHNOLOGY LIMITED
By: /s/ [illegible signature]
SIMON ENGINEERING plc
By: /s/ [illegible signature]
15
16
HORIZON EXPLORATION LIMITED
By: /s/ [illegible signature]
16
17
ANNEX - 1
[Insurance Deductibles Letter]
17
