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EXHIBIT 10.46
HORIZON EXPLORATION LTD (1)
AND
THE BANK OF N T XXXXXXXXXXX
& SON LIMITED (2)
ASSIGNMENT
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THIS ASSIGNMENT is made the 1996
BETWEEN:
(1) HORIZON EXPLORATION LIMITED a company registered in England under
Company Number 02804983 of 0 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx XX00 0XX
("the Assignor"); and
(2) THE BANK OF N T XXXXXXXXXXX & SON LIMITED (London Branch) of 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the Bank")
WHEREAS:
In consideration of the Bank making revolving trade finance facilities
("the Facilities") to the Assignor the Assignor has agreed to enter
into this Deed of Assignment.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Assignment including the Recitals hereto the following
words and expressions shall unless the context otherwise
requires bear the following meanings:
"THE CONTRACT PROCEEDS" all sums to be paid by (the Client) to
the Assignor from time to time in accordance with the terms of
the Agreement;
"THE AGREEMENT" means the seismic research survey agreement
entered into between the Assignor and (the Client) dated
___________ 1996;
"(THE CLIENT)" means (the Client) ______________
2. COVENANT TO PAY
The Assignor covenants on demand to pay and discharge to the Bank all
monies obligations and liabilities whether principal interest or
otherwise which may now or at any time in the future be due, owing or
incurred by the Assignor to the Bank.
3. ASSIGNMENT
3.1 The Assignor as beneficial owner and as a continuing security
hereby assigns absolutely to the Bank the Contract Proceeds
together with all rights of action and interest associated
therewith;
3.2 The bank agrees that all payments received in respect of the
Contract Proceeds under the terms of this Assignment shall be
set against all monies due from the Assignor to the Bank from
time to time;
3.3 If the Assignor shall unconditionally and irrevocably pay or
discharge to the Bank all monies and the obligations and
liabilities covenanted to be paid by the Assignor to the Bank
in accordance with Clause 2 hereof, then the Bank will at the
request and cost of the Assignor reassign the Contract
Proceeds to the Assignor or as the Assignor shall direct.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE ASSIGNOR
The Assignor represents and warrants to the Bank and undertakes that:
4.1 The Agreement is valid and in force free of any charge or
encumbrance of any kind and nothing has been or shall be done,
permitted or suffered whereby the Bank may be prevented from
receiving all or any of the monies payable to the Assignor in
terms thereof;
4.2 The Assignor shall forthwith give notice of this Assignment to
the Bank in the form of the Schedule hereto and deliver the
receipted notice to the Bank;
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4.3 The Assignor shall duly and punctually perform all the
obligations on the part of the Assignor under the Agreement
and to procure so far as possible the due performance of all
obligations of (the Client) under the Agreement;
4.4 The Assignor shall take all action promptly and expeditiously
(at its own expense in all respects) required to ensure the
proper payment of the Contract Proceeds and to ensure that the
Contract Proceeds are paid direct to such account as the Bank
shall from time to time direct.
4.5 The Assignor shall not do or cause to or permit to be done
anything which may depreciate, jeopardize or otherwise
prejudice the value of the Contract Proceeds assigned
hereunder.
4.6 The Assignor shall not make any other assignment or transfer
or agree to make any such transfer in respect of the Contract
Proceeds and shall not permit or allow any rights to arise in
favor of or exercisable by any third parties (other than the
Bank) over the Contract Proceeds.
4.7 If the Assignor shall fail to satisfy the Bank that it has
performed any of its obligations under this Clause 4 then the
Bank may take such steps as it considers appropriate to
procure the performance of such obligation and shall not
thereby be deemed to be a mortgagee in possession and the
monies expended by the Bank shall be reimbursed by the
Assignor on demand and until so reimbursed shall carry
interest at 4% above the Bank's base rate from time to time.
5. PERFORMANCE OF OBLIGATIONS UNDER THE AGREEMENT
For the avoidance of doubt the Assignor will remain liable and
responsible to perform all its obligations under the Agreement and any
variations thereto.
6. FURTHER ASSURANCE
The Assignor shall, whenever requested by the Bank, immediately
execute and sign all such deeds and documents and do all such things
as the Bank may require at the Assignor's cost over the Agreement for
the purpose of perfecting or more effectively providing security to
the Bank for the payment and discharge of the monies, obligations and
liabilities secured by this Agreement.
7. COSTS
All costs, charges and expenses incurred by the Bank in relation to
this Assignment or the monies, obligations and liabilities hereby
secured shall be reimbursed by the Assignor to the Bank on demand on a
full indemnity basis and until so reimbursed shall carry interest as
mentioned in Clause 4 from the date of payment to the date of
reimbursement.
8. MISCELLANEOUS
8.1 The security constituted by this Assignment shall be in
addition to and shall not be prejudiced, determined or
affected nor operate so as in anyway to determine prejudice or
affect any other security which the Bank may now or at any
time in the future hold for or in respect of all or any part
of the monies, obligations and liabilities secured by this
Assignment nor shall any prior security held by the Bank over
the Agreement merge in the security constituted by this
Assignment which shall remain in force and effect
notwithstanding any intermediate settlement of account as a
continuing security until discharged by the Bank.
8.2 The Bank may, without discharging or in anyway affecting the
security created by this Assignment or any remedy of the Bank
grant time or other indulgence or abstain from exercising or
enforcing any remedies, securities, guarantees or other rights
which it may now or in the future have from or against the
Assignor and may make any other arrangement, variation or
release with any person or persons without prejudice either to
this Assignment or liability of the Assignor for the monies,
obligations and liabilities secured by this Assignment.
8.3 The Bank shall have a full and unfettered right to assign the
whole or any part of the benefit of this Assignment and the
expression "the Bank" shall include its successors and assigns
and the Bank shall be
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entitled to disclose any information to any actual or
prospective assignee, successor or participant.
8.4 The provisions of this Assignment shall be severable and if at
any time any one or more such provisions is or becomes
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in anyway
be impaired.
8.5 The rights and remedies of the Bank provided by this
Assignment are cumulative and are not exclusive of any rights,
powers or remedies provided by law and may be exercised from
time to time and as often as the Bank may deem expedient.
8.6 Any reference in this Assignment to any statute or any section
of any statute shall be deemed to include reference to any
statutory modification or re-enactment thereof for the time
being in force.
9. NOTICES
Any demand or notice under this Assignment may be served personally or
may be sent by post to the Assignor's last known address or place of
business. If such demand or notice is sent by post it shall be deemed
to have been received on the day following the day on which it was
posted and shall be effective notwithstanding that it was not in fact
delivered or was returned undelivered.
10. GOVERNING LAW AND JURISDICTION
This Assignment shall be governed and construed in accordance with the
laws of England and the Assignor hereby irrevocably submits to the
non-exclusive jurisdiction of the English Courts.
IN WITNESS whereof the Assignor has executed and delivered this
Assignment as a deed the day and year first above written.
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EXECUTED but not delivered until )
the date hereof) as a Deed by )
HORIZON EXPLORATION LIMITED )
acting by: )
Director
Director/Secretary
EXECUTED but not delivered until )
the date hereof) as a Deed by )
THE BANK OF N. T. XXXXXXXXXXX & SON )
LIMITED (London Branch) acting by: )
Authorized Officer
Authorized Officer
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THE SCHEDULE
NOTICE OF ASSIGNMENT
To: Date:
Dear Sirs:
NOTICE OF ASSIGNMENT OF CONTRACT PROCEEDS
We hereby give you notice that all sums to be paid or advanced to us by you
under the terms of the Seismic Research Survey Agreement ("the Agreement")
between us have been assigned by us to The Bank of N T Xxxxxxxxxxx & Son
Limited of 00 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the Bank") to secure all
monies obligations and liabilities due, owing or incurred to the Bank.
Further, we irrevocably authorize and require you to make all future payments
in respect of the Contract Proceeds to the Bank, quoting the following
reference:
Remit to: Bank of Xxxxxxxxxxx
Sort Code: 40-51-91
Account Name: Horizon Exploration Ltd.
Account Number:
This authority is to take immediate effect.
Please acknowledge by signing and returning one copy of this notice.
Yours faithfully,
HORIZON EXPLORATION LIMITED
We acknowledge receipt of a copy of the above notice.
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for and on behalf of
Date: 1994
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