Exhibit 10.5
COMMISSION AGREEMENT
This Commission Agreement (this "Agreement") is entered into as of the 1st day
of April ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇), INC. ("Agent"), and ▇▇▇▇▇▇ OFFSHORE
LLC ("Company").
WHEREAS, Company is the charterer of the "TONALA" (the "Vessel") a jackup mobile
offshore drilling unit owned by Perforadora Central, S.A. de C.V.
("Perforadora"), pursuant to that certain Bareboat Charter Agreement (the
"Charter") dated November 30, 1999, between Company and Perforadora;
WHEREAS, Company and Agent desire to memorialize their agreement for payment of
commissions to Agent for its services in execution of the Charter for the Vessel
on behalf of the Company, upon the terms contained herein.
NOW, THEREFORE, in consideration of the premises and the covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties, Company and Agent agree as
follows:
1. APPOINTMENT: Company hereby appoints Agent with respect to the Charter
in connection with the Vessel.
2. COMMISSIONS: Company shall pay Agent a commission equal to 2% of the
"Net Operating Margin" (as defined in the Charter) received by Company
in connection with contracts entered into by Company (the
"Commission"). The Commission shall be payable by Company to Agent
within sixty (60) days after the end of each calendar quarter for
which hire is received and calculated pursuant to the Charter. Agent's
commission in respect of any such Contract shall extend to any
extensions of the Charter up to a maximum of eighteen (18) months
beyond the initial term for a maximum total period of 36 months.
Payment of commissions due Agent under this Agreement shall be made by
Company in accordance with written instructions from Agent, but shall
be subject to any applicable exchange control laws or regulations. In
the event of a sale of the Vessel directly to the Company or an
affiliate of the Company, Agent shall be entitled to a commission
equal to .125% (1/8th of 1 percent) of the agreed sales price due and
payable in cash upon closing of the sale.
3. NO AUTHORITY TO CONTRACT: Agent shall not have, nor shall it represent
itself as having, any authority to make contracts or any other legal
commitments in the name of or binding on Company or to pledge
Company's credit or to extend in Company's name.
4. EXPENSES: Agent agrees to assume all expenses incurred and all
disbursements by it as a sales agent of Company hereunder. Agent shall
not incur any liability for such expenses and disbursements for the
account of Company and shall indemnify Company in relation thereto.
Notwithstanding the foregoing, Company shall reimburse Agent for all
expenses incurred and all disbursements by it, which are incurred or
disbursed with the prior written approval of Company.
5. COMPANY'S PROPERTY: Any property of Company received by Agent under
this Agreement shall be held by it to the account of Company, and upon
request from Company, such property shall be returned to Company in as
good a condition as when received by Agent, ordinary wear and tear
excepted. All records or papers of any kind relating to Company's
business shall remain the property of Company and shall be returned by
Agent to Company on demand.
6. TRADE SECRETS: Agent shall not acquire any rights to and goodwill,
trademark, copyright, trade secret or other property of Company. If
during the term of this Agreement any such rights should become vested
in Agent by imposition of law or otherwise, Agent agrees it will, on
Company's
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request or on termination of this Agreement, assign any and all such
rights to Company, together with any related good will. Nothing
contained herein, however, shall require Agent to assign to Company
any goodwill, trademark, copyright or other trade secret relating
exclusively to equipment and services other than Company's or to
Agent's business other than its business under this Agreement.
7. INDEMNIFICATION: Each party agrees to indemnify the other party, its
agents, servants and employees against all claims, damages, losses and
expenses, including reasonable attorneys' fees, arising out of
performance of such party's work which is caused in whole or in part
by such party's negligent act or omission or that of any person
employed by such party for whose acts or omissions such party is
liable.
8. REPRESENTATIONS BY AGENT:
a. Agent represents that it owns and will own any bank account into
which it directs payments to be made by Company hereunder.
b. Agent agrees not to make any direct or indirect payments or
provide any other benefits to directors, officer or employees of
any Client of Company.
c. Agent agrees not to make any direct or indirect payments to any
government officials or any direct or indirect payments that are
illegal under any applicable law.
d. Agent agrees to conduct its activities in accordance with all
applicable laws.
e. Agent agrees to keep all information furnished by Company
confidential and not release same to any third party without the
prior written consent of Company. The foregoing shall not apply
to advertising materials and brochures unless Company so directs
Agent in writing.
9. TERM: This Agreement shall be effective upon execution and shall
continue in effect until the termination or cancellation of the
Charter for any reason subject to extensions of the Charter described
in paragraph 2 above. Upon such termination or cancellation of the
Charter, the Commission shall be payable based on the Net Operating
Margin under the Charter through the effective date of such
termination or cancellation.
10. PROHIBITION OF ASSIGNMENT: This Agreement may not be assigned or
otherwise transferred by either party without the prior written
consent of the other party.
11. NOTICES: Any notices provided for under this Agreement shall be in
writing and shall be delivered personally, by certified or registered
mail, postage prepaid, to the address shown below or by facsimile
(with verification of receipt). Notices given or served pursuant
hereto shall be effective upon receipt by the party to be notified.
If to Agent: Bassoe Offshore (USA), Inc.
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Company: ▇▇▇▇▇▇ Offshore LLC
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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Either party may change its address for notices under this Agreement
by notice to the other party as outlined above.
12. GOVERNING LAW: This Agreement and any disputes between the parties
shall be construed under the laws of the State of Texas, without
giving effect to any conflict of law rules or provisions.
13. FURTHER ASSURANCES: Each party shall execute such other deeds,
assignments, endorsements and other instruments and evidences of
transfer, give such further assurances and perform such acts which are
or may become necessary or appropriate to effectuate and carry out the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
BASSOE OFFSHORE (USA), INC.
"Agent"
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ OFFSHORE LLC
"Company"
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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