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EXHIBIT 10.5
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into and
executed on this 14th day of February, 1995 by and between ▇▇▇▇▇▇ FALCON I,
LTD. ("Seller") and ▇▇▇▇▇▇ OCEANICS PACIFIC LTD. ("Buyer"), effective December
31, 1994 (the "Effective Date").
R E C I T A L S:
WHEREAS, Seller owns and operates a U.S. flag, semi-submersible drilling
Vessel (Official No. 653713) known as "Falcon" (the "Vessel") and other assets
that support the drilling operations of the Vessel (all of which is herein
referred to as the "Business"); and
WHEREAS, Buyer desires to purchase and receive from Seller, and Seller
desires to sell and assign to Buyer, any and all of the tangible and
intangible assets, contracts, and any other assets used or involved in the
operation of Seller's Business.
NOW, THEREFORE, in consideration of and subject to the mutual
agreements, terms and conditions herein contained, the parties hereto agree as
follows:
1. Purchase and Sale of Assets.
(a) Assets Conveyed. Upon the terms and subject to all of the
conditions herein and the performance by each of the parties
hereto of their respective obligations hereunder, Buyer hereby
agrees to purchase from Seller, and Seller hereby agrees to sell
and deliver to Buyer, on the Closing Date (as defined below), any
and all of the properties and assets used or involved in Seller's
Business, including, without limitation, the following
(collectively the "Assets"):
(i) The Vessel and all property and other tangible assets used
in the Business, including those described or referred to in
Exhibit A attached hereto and made part of this Agreement ("Vessel
Assets"); and
(ii) All leases, contracts, arrangements, understandings,
bareboat or other charters, or agreements relating to the hire,
use or operation of the Vessel Assets or in the operation of the
Business, including those listed on Exhibit B attached hereto and
made a part of this Agreement ("Contracts"); and
(iii) All licenses, permits, consents, authorizations and orders
of governmental or regulatory authorities as are necessary to
carry on the Business as is presently being conducted, including
those listed on Exhibit C attached hereto and made a part of this
Agreement to the extent assignable ("Licenses and Permits"); and
PAGE 71
(iv) Any and all other assets, whether tangible or intangible,
used in the Business, including all intangible assets essential to
or used in the operation of the Business.
(b) Limitation on Assignment. Notwithstanding anything herein
contained to the contrary, this Agreement shall not constitute nor
require any assignment to Buyer of any claim, lease, easement,
permit, license, contract or other right if an attempted
assignment of the same without the consent of any third party
would constitute a breach thereof, unless and until such consent
shall have been obtained. In the case of any Asset which cannot
effectively be transferred to Buyer without the consent of any
governmental agency or authority or any other person, Seller and
Buyer will each use all reasonable efforts to obtain such consents
promptly and to enter into such reasonable arrangements which as
closely as possible give Buyer the benefits of such matters.
2. Closing. The closing of the purchase and sale of the Assets (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, at 10:00 a.m.
(Houston time) on March 31, 1995, or at such other place, date and time as the
parties may agree (the "Closing Date").
3. Consideration. Subject to the terms and conditions of this Agreement,
and in full consideration for the conveyance, transfer and delivery of the
Assets and Business of Seller to Buyer as provided herein, Buyer shall pay to
Seller the following consideration:
(a) Cash. The cash sums of (i) TEN MILLION SEVEN HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($10,750,000.00) payable by wire
transfer of immediately available funds on the Closing Date ("Cash
Consideration") and (ii) ONE MILLION NINETY-FIVE THOUSAND AND
NO/100 DOLLARS ($1,095,000.00) (both (i) and (ii) shall be
collectively referred to as the "Cash Consideration").
(b) Term Notes. Buyer shall issue three promissory notes to Seller
("Note Consideration") as follows: (i) promissory note in the
original principal amount of THREE MILLION AND NO/100 DOLLARS
($3,000,000.00) payable on or before December 31, 1998 plus
interest at a rate of six percent (6%) per annum with acceleration
provisions upon a Change of Control, among other things, all as
defined and set forth therein, which promissory note is in the
form of Exhibit D-1 attached hereto, and (ii) promissory note in
the original principal amount of THIRTEEN MILLION SEVEN HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($13,750,000.00) payable on or
before December 31, 2010, plus interest at a rate of nine percent
(9%) per annum and (iii) promissory note in the original principal
amount of ONE MILLION NINETY FOUR THOUSAND AND NO/100 DOLLARS
($1,094,000.00) payable on or before December 31, 2010, plus
interest at a rate of nine percent (9%) per annum.
(c) Assumption. Buyer agrees to assume and fulfill Seller's
unfulfilled contractual obligations and certain other liabilities
and obligations as set out in Section 5 hereof ("Assumptions").
PAGE 72
(d) Guaranty of ▇▇▇▇▇▇ Oceanics, Inc. The Partnership agrees to use
its best efforts to cause ▇▇▇▇▇▇ Oceanics, Inc. to execute a
Guaranty Agreement ("Guaranty") guaranteeing the $3,000,000.00
promissory note comprising a portion of the Note Consideration.
The Guaranty shall be in the form of Exhibit D-2 attached hereto.
(e) Working Capital. Buyer and Seller agree that the total working
capital of the Partnership as of the Effective Date is TWO MILLION
ONE HUNDRED EIGHTY-NINE THOUSAND AND NO/100 DOLLARS
($2,189,000.00) which is reflected as part of the Purchase Price
in clauses (a)(ii) and (b)(iii) above.
The amounts payable (and the Assumptions) in paragraphs (a) through (c) herein
shall be collectively referred to as (the "Purchase Price").
4. Allocation. The Parties understand and agree that the Purchase Price
shall be allocated to comply with Section 1060 of the Internal Revenue Code
of 1986, as amended.
5. Obligations Assumed by Buyer.
(a) Assumed. Buyer agrees to assume, perform and discharge (i) the
unperformed and unfulfilled executory contracts, lease
obligations, and ongoing obligations of the Business accruing from
the Effective Date all as specifically set forth in Exhibit B
hereto, and (ii) all accounts payable and accrued liabilities
which are reflected on that certain Analysis of Liabilities at
December 31, 1994 attached hereto as Exhibit E.
(b) Excluded. Except as set out in paragraph 5(a), Buyer will not
assume and will not discharge or be liable for any debts,
liabilities, or obligations of Seller.
6. Representations and Warranties by Seller. As a material inducement to
Buyer to execute and perform its obligations under this Agreement, Seller
hereby represents and warrants to Buyer as follows, which representations and
warranties shall survive the execution and delivery of this Agreement and the
closing of the transactions contemplated hereby for a period of two (2) years
from the Effective Date:
(a) Partnership Existence. Seller is a limited partnership, duly
organized and validly existing under the laws of the State of
Texas and has all the requisite power and authority to sell the
assets of the Business as it is presently being conducted, to
enter into this Agreement, and to carry out and perform the terms
and provisions of this Agreement.
(b) Assets. Exhibits A, B and C to this Agreement contain a true and
correct list of all assets used or required to be used in the
Business.
(c) Asset Condition. To the extent required by applicable law to be
operative, the disclaimers of certain warranties contained in this
paragraph are "conspicuous" disclaimers for the purposes of any
applicable law, rule, or order. SELLER HEREBY EXPRESSLY DISCLAIMS
PAGE 73
AND NEGATES ANY REPRESENTATION OR WARRANTY, EXPRESSED, IMPLIED, AT
COMMON LAW, BY STATUTE, OR OTHERWISE, RELATING TO THE CONDITION OF
THE VESSEL ASSETS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR
EXPRESSED WARRANTY OF MERCHANTABILITY, OR OF SEAWORTHINESS, OR
VALUE, OF DESIGN, OR OF FITNESS FOR A PARTICULAR PURPOSE OR USE,
OR OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS. SELLER AND
BUYER AGREE THAT THE VESSEL ASSETS SHALL BE SOLD BY SELLER TO
BUYER "AS IS, WHERE IS".
(d) Documentation. As of the date of this Agreement, the Vessel is
duly and lawfully documented under the laws and flag of the United
States. Between the date of this Agreement and the Closing
hereof, Seller will comply with and satisfy the provisions of the
shipping laws of the United States so that the Vessel shall be
allowed to be documented under the flag of the Republic of Panama
upon conveyance to Buyer at Closing.
(e) Litigation. There are no actions, suits, or proceedings pending
or threatened against Seller which might hinder in any way this
Agreement or affect any of Seller's properties or rights, at law
or in equity or before any federal, state, municipal, or other
governmental agency or instrumentality, domestic or foreign, nor
is Seller aware of any facts which to its knowledge might result
in any such action, suit, or proceeding. Seller is not in default
with respect to any order or decree of any court or of any such
governmental agency or instrumentality which might hinder in any
way this Agreement.
(f) Enforceable Obligations. Seller is not in violation of any of its
executory contracts and ongoing business obligations to the extent
such a violation would have a material adverse impact on Seller's
ability to fully perform its obligations under this Agreement.
Seller is not in material violation of any term or provision of
its charter or bylaws, or any mortgage, indenture, contract,
agreement, instrument, judgment, decree, order, statute, rule or
regulation the violation of which would have a material adverse
impact on Seller's ability to fully perform its obligations under
this Agreement. The execution and delivery of and performance
under and compliance with this Agreement will not result in a
material violation of or be in conflict with or constitute a
default under any such term or provision or result in the creation
of any mortgage, lien, encumbrance, or charge upon any of the
properties or assets of Seller pursuant to any such term or
provision.
(g) Title. Seller has good and indefeasible title to the Assets being
sold to Buyer pursuant to this Agreement, free and clear of any
and all mortgages, security interests, liens, claims, debts,
charges or encumbrances (except as expressly assumed herein).
(h) Contracts and Agreements. To the best of Seller's knowledge and
subject to obtaining reasonable approvals, Seller's ability to
assign all executory contracts required to operate the Business,
including without limitation, those Assets described or referred
to in Exhibit B hereto, on terms no less favorable than those in
PAGE 74
effect with Seller, is not subject to any lease, mortgage, pledge,
lien, charge, security interest, encumbrance, non-compete agree-
ment, reserved interests of prior owners (including shareholders
and employees or prior owners), restrictions on assignment, or any
other restriction whatsoever.
(i) Claims. Seller has no knowledge or any claim or reason to believe
that performance under the contracts to be assumed is or may be
infringing or otherwise acting adversely to the rights of any
person under or in respect to any patent, trademark, service ▇▇▇▇,
trade name, copyright, license, or other similar intangible right.
Seller is not obligated under any liability whatever to make any
payments by way of royalties, fees, or otherwise to any owner or
licensee of or other claimant to the patent, trademark, trade
name, copyright, or other intangible asset with respect to the use
thereof or in connection with the conduct of the Business or
otherwise.
(j) True Statements. No representation or warranty by Seller in this
Agreement or in any writing attached hereto, contains or will
contain any untrue statement of material fact or omits or will
omit to state any material fact required to make the statements
herein or therein contained not misleading.
7. Representations and Warranties by Buyer. As a material inducement to
Seller to execute and perform its obligations under this Agreement, Buyer
hereby represents and warrants to Seller as follows, which representations and
warranties shall survive the execution and delivery of this Agreement and the
closing of the transactions contemplated hereby for a period of two (2) years
from the Effective Date:
(a) Corporate Existence. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the Cayman
Islands and has all the authority to acquire the assets of the
business as it is presently being conducted and to enter into this
Agreement, and to carry out and perform the terms and provisions
of this Agreement.
(b) Litigation. There are no actions, suits, or proceedings pending
or threatened against Buyer which might hinder in any way this
Agreement or affect any of Buyer's properties or rights, at law or
in equity or before any federal, state, municipal, or other
governmental agency or instrumentality, domestic or foreign, nor
is Buyer aware of any facts which to its knowledge might result in
any such action, suit, or proceeding. Buyer is not in default
with respect to any order or decree of any court or of any such
governmental agency or instrumentality which might hinder in any
way this Agreement.
(c) Enforceable Obligations. Buyer is not in material violation of
any term or provision of its charter or bylaws, or any mortgage,
indenture, contract, agreement, instrument, judgment, decree,
order, statute, rule or regulation the violation of which would
have a material adverse impact on Buyer's ability to fully perform
its obligations under this Agreement.
PAGE 75
(d) True Statements. No representation or warranty by Buyer in this
Agreement or in any writing attached hereto, contains or will
contain any untrue statement of material fact or omits or will
omit to state any material fact required to make the statements
herein or therein contained not misleading.
8. Covenants. In addition to the rights and obligations of Buyer and
Seller set forth elsewhere in this Agreement, Buyer and Seller covenant and
agree as follows:
(a) Broker's Fees. Buyer represents that it has incurred no
obligation or liability, contingent or otherwise, for brokers' or
finders' fees with respect to the matters provided for in this
Agreement which will be the responsibility of Seller. Seller
represents that it has incurred no obligation or liability,
contingent or otherwise, for brokers' or finders' fees with
respect to the matters provided for in this Agreement which will
be the responsibility of Buyer.
(b) Government Approval. Promptly following the execution of this
Agreement, Seller shall make all required filings with and prepare
all applications to the United States Department of
Transportation, Maritime Administration, Vessel Transfer Office,
as may be necessary or appropriate for the sale of the Vessel to
Buyer, the deletion of the Vessel from U.S. documentation and the
enrollment of the Vessel under Panamanian flag and registry.
Buyer shall cooperate with Seller and use its best efforts to
assist Seller in its undertakings with respect to such filings and
applications. Buyer agrees to comply in all respects with the
terms and conditions imposed by the Department of Transportation
as set forth in its Approval Notice and Agreement.
(c) Damage to the Vessel. If, after the date of this Agreement and
before the Closing Date, there occurs any casualty, accident or
damage to the Vessel involving an amount in excess of $25,000.00,
Seller will provide written notice thereof to Buyer. At Buyer's
request, Seller shall repair any such damage at Seller's sole
expense. Notwithstanding the preceding provisions of this Section
8(c), if the casualty, accident or damage will require more than
thirty (30) days to repair, or if the Vessel has suffered a total
or constructive total loss, Buyer shall have the right to
terminate this Agreement upon written notice to that effect
addressed to Seller.
9. Conditions to Buyer's Obligations. The obligations of Buyer to effect
the transactions contemplated by this Agreement are subject to the following
conditions:
(a) Conveyance Documents. Seller shall have executed and delivered a
General Conveyance, ▇▇▇▇ of Sale, Assignment and Assumption
Agreement.
(b) ▇▇▇▇ of Sale. Seller shall have executed and delivered a
Panamanian ▇▇▇▇ of Sale for the Vessel.
PAGE 76
(c) Certificates. Seller shall have delivered to Buyer Certificates
of Existence and other documentation as Buyer may reasonably
require to confirm Seller's status.
(d) Authorization. Buyer and Seller shall have received all written
authorization and approvals required by any applicable laws, rules
or regulations including, without limitation, the consent of the
United States Department of Transportation, Maritime
Administration, Vessel Transfer Office, pursuant to Section 9 of
the Shipping Act.
(e) Other Documents. Seller shall have executed and delivered such
other and further documents and instruments as may be reasonably
necessary to give full effect to this Agreement.
(f) Simultaneous Closings. Simultaneous with the Closing hereunder,
(i) Seller shall dissolve in accordance with that certain
Dissolution Agreement dated of even date herewith and distribute
any remaining assets, the Cash Consideration and the Note
Consideration to its partners and (ii) ▇▇▇▇▇▇ Oceanics Drilling
Company shall have purchased the limited partnership interest of
Philadelphia Drilling Company in ▇▇▇▇▇▇ Deep Seas, Ltd.
(g) Certificate of Deletion. Seller shall have delivered to Buyer
either (i) a Certificate of Deletion issued by the U.S. Coast
Guard indicating that the Vessel has been deleted from U.S.
documentation, or (ii) a letter from Seller advising that it has
forwarded to the Coast Guard all documents and instruments
required for the deletion of the Vessel from U.S. documentation,
including a written request that the Coast Guard delete the Vessel
from documentation, the original Certificate of Documentation
covering the Vessel, the Transfer Order issued by the United
States Department of Transportation, Maritime Administration,
Vessel Transfer Office, satisfaction of any liens covering the
Vessel, and copies of the ▇▇▇▇ of Sale covering the Vessel.
(h) Representations and Warranties. All representations and
warranties of Seller shall be true and correct as of the Closing
Date.
10. Conditions to Seller's Obligations. The obligations of Seller to
effect the transactions contemplated by this Agreement are subject to the
following conditions:
(a) Payment of Purchase Price. Buyer shall have paid the Purchase
Price for the Assets to Seller.
(b) Guaranty. ▇▇▇▇▇▇ Oceanics, Inc. shall have executed and delivered
the Guaranty.
(c) ▇▇▇▇ of Sale. Buyer shall have executed and delivered the General
Conveyance, ▇▇▇▇ of Sale, Assignment and Assumption Agreement.
(d) Authorization. Buyer and Seller shall have received all written
authorization and approvals required by any applicable laws, rules
PAGE 77
or regulations including, without limitation, the consent of the
United States Department of Transportation, Maritime
Administration, pursuant to Section 9 of the Shipping Act.
(e) Other Documents. Buyer shall have executed and delivered such
other and further documents and instruments as may be reasonably
necessary to give full effect to this Agreement.
(f) Simultaneous Closings. Simultaneous with the Closing hereunder,
(i) Seller shall dissolve in accordance with that certain
Dissolution Agreement dated of even date herewith and distribute
any remaining assets, the Cash Consideration and the Note
Consideration to its partners and (ii) ▇▇▇▇▇▇ Oceanics Drilling
Company shall have purchased the limited partnership interest of
Philadelphia Drilling Company in ▇▇▇▇▇▇ Deep Seas, Ltd.
(g) Representations and Warranties. All representations and
warranties of Buyer shall be true and correct as of the Closing
Date.
11. Conduct of Business Prior to the Closing Date. Seller further agrees
that from the date of this Agreement through the Closing Date, except as
contemplated by Section 8(b) hereof or as approved by Buyer in writing, Seller
shall not do any of the following:
(a) make any change in the conduct of the Business;
(b) enter into any transaction other than in the ordinary course of
business;
(c) dispose of any of the Assets, except in the ordinary course of
business;
(d) subject any of the Assets to a lien or other encumbrance, except
in the ordinary course of business;
(e) waive any right of substantial value relating to or affecting the
Assets;
(f) enter into any agreement or make any undertaking which could be
violated, or create obligations which could be accelerated, as a
result of changes or developments or the absence of changes or
developments in, the Business, Assets, earnings, operations or
condition, financial or otherwise, of Seller; or
(g) in any manner whatsoever transfer any interest in Seller to any
person.
12. Post-Closing Obligations of Seller. Promptly after the Closing Date,
Seller shall:
(a) Possession. Take all such steps as may be requisite to put Buyer
in actual possession, operation, and control of the Assets on the
Closing Date of this Agreement.
PAGE 78
(b) Consents to Assignment. Furnish to Buyer all consents, waivers,
and releases then in Seller's possession relating to or permitting
the sale and assignment of any Asset and seek to obtain any other
consent necessary to transfer any Asset to Buyer.
13. Further Assurances. From time to time after the Closing Date at the
request of Buyer, Seller shall execute and deliver to Buyer such other
instruments of assumption and take such other action and Buyer may reasonably
require of Seller to assist Buyer in acquiring full, clear title to the
Assets.
14. Taxes.
(a) Income Taxes. Seller shall assume responsibility for, and shall
bear and pay, all federal income taxes, state income taxes, and
other similar taxes on gross income, net income, or gross receipts
(including any applicable interest or penalties) incurred or
imposed with respect to the conveyance by Seller to Buyer of the
Assets pursuant to this Agreement.
(b) Ad Valorem Taxes. Seller shall be responsible for, and shall bear
and pay, all ad valorem, property, and similar taxes and
assessments (including any applicable penalties and interest)
assessed against the Assets by any taxing authority for any period
prior to the Effective Date. Buyer shall assume responsibility
for, and shall bear and pay, all ad valorem, property, and similar
taxes and assessments (including any applicable penalties and
interest) assessed against the Assets by any taxing authority for
any period that begins on or after the Effective Date.
15. Indemnification.
(a) Indemnity by Seller. Seller shall and hereby agrees to indemnify,
hold harmless, and defend Buyer by counsel mutually acceptable to
Buyer and Seller at all times from and after Effective Date
against and in respect to Damages (as defined below) for a period
of two (2) years from the Effective Date. As used herein,
"Damages" shall include any claims, actions, demands, losses,
costs, expenses, liabilities (joint or several), penalties, and
damages, including reasonable consulting fees incurred in investi-
gation or in attempting to avoid the same or oppose the imposition
thereof, resulting to Buyer from (a) any inaccurate representation
made by Seller in or under this Agreement; (b) breach of any of
the representations and warranties made by Seller in or under this
Agreement; and (c) breach or default in the performance by Seller
of any of the covenants to be performed by it hereunder. In no
event shall Buyer or its affiliates enter into any settlement of
any of the above without Seller's prior written consent. Seller
shall be entitled to join in the defense of any of the foregoing,
at its cost, by counsel of its choice.
(b) Indemnity by Buyer. Buyer shall and hereby agrees to indemnify,
hold harmless, and defend Seller, by counsel mutually acceptable
to Seller and Buyer, at all times from and after the Effective
Date against and in respect to Damages (as defined below) for a
PAGE 79
period of two (2) years from the Effective Date. As used herein,
"Damages" shall include any claims, actions, demands, losses,
costs, expenses, liabilities (joint or several), penalties, and
damages, including reasonable consulting fees incurred in investi-
gation or in attempting to avoid the same or oppose the imposition
thereof, resulting to Seller from (a) any inaccurate represen-
tation made by Buyer in or under this Agreement; (b) breach of any
of the representations and warranties made by Buyer in or under
this Agreement; and (c) breach or default in the performance by
Buyer of any of the covenants to be performed by it hereunder. In
no event shall Seller enter into any settlement of any of the
above without Buyer's prior written consent. Buyer shall be
entitled to join in the defense of any of the foregoing, at its
cost, by counsel of its choice.
16. Termination
(a) Termination by Mutual Consent. This Agreement may be terminated
at any time prior to the Closing Date by the mutual consent of
Buyer and Seller.
(b) Buyer's Termination on Failure of Closing Condition. This
Agreement may be terminated by Buyer at any time after March 31,
1995 if by such date, the conditions set forth in Sections 9 and
11 shall not have been fulfilled or waived, provided however, that
Buyer shall have made a good faith effort to satisfy all of its
conditions as set forth in Section 10.
(c) Seller's Termination on Failure of Closing Condition. This
Agreement may be terminated by Seller at any time after March 31,
1995 if by such date, the conditions set forth in Section 10
hereof shall not have been fulfilled or waived, provided however,
that Seller shall have made a good faith effort to satisfy all of
its conditions as set forth in Sections 9 and 11.
(d) Termination for Other Reasons. This Agreement may be terminated
at any time prior to the Closing Date by Buyer if any
investigation of the Business by Buyer after the date hereof, or
any information or any other document delivered to Buyer after the
date hereof, shall have revealed any facts or circumstances which,
when taken as a whole, are likely to adversely affect the Business
or Seller's financial condition, assets, liabilities (absolute,
contingent or otherwise), reserves, business, operations or
prospects.
17. Attorneys Fees. In the event that any party brings an action to enforce
any provisions of this Agreement, then the reasonable costs and attorney's
fees of the prevailing party shall be reimbursed by the other party.
18. Miscellaneous
(a) Expenses. Each of the parties shall bear all expenses incurred by
it in connection with this Agreement and in consummation of the
transactions contemplated hereby and in preparation thereof.
PAGE 80
(b) Amendment and Waiver. This Agreement may be amended or modified
at any time and in all respects, or any provision may be waived by
an instrument in writing executed by Buyer and Seller.
(c) Notices. Any notice required to be given pursuant to this
Agreement shall be in writing, which shall include, without
limitation, telex, telecopy or other electronic transmission
reduced to written form. Notice given by telex, telecopy or other
electronic transmission shall be deemed to have been given and
received when sent. Notice by mail shall be deemed to have been
given and received three (3) calendar days after the day first
deposited in the United States mail, certified mail, first class
postage prepaid, return receipt requested, and as addressed as
shown below. Notice by overnight service shall be deemed to have
been given and received the next delivery day. Notices shall be
given to the following addresses, unless changed in writing by the
respective addressee:
(i) If to Seller:
▇▇▇▇▇▇ Falcon I, Ltd.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
Philadelphia Falcon Drilling Corporation
One Beaver Valley Road
P. O. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
and
CIGNA International Finance Inc.
S-215
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
PAGE 81
(ii) If to Buyer:
▇▇▇▇▇▇ Oceanics Pacific, Ltd.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
or at such other address as shall be given in writing by any party
to the other parties hereto.
(d) Arbitration and Dispute Resolution. Any dispute controversy or
claim arising out of or relating to this Agreement shall be
finally settled by binding arbitration in Houston, Texas in
accordance with the Commercial Arbitration rules of the American
Arbitration Association in effect on the date of this Agreement
and judgment upon the award may be entered in any court having
jurisdiction thereof.
(e) Governing Law. It is the intention of the parties that the laws
of Texas should govern the validity of this Agreement, the
construction of its terms, and the interpretation of the rights
and duties of the parties.
(f) Section and Other Headings. Section, paragraph, 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.
(g) Counterpart Execution. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute but one and the same
instrument.
(h) Parties of Interest. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of, and
be enforceable by, Seller and Buyer and their successors and
permitted assigns.
(i) Integrated Agreement. This Agreement and the documents
contemplated herein constitutes 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.
(j) Bulk Sales Law. Buyer hereby waives compliance by Seller with the
provisions of any bulk sales laws applicable to this transaction,
if any, and Seller hereby agrees to indemnify Buyer for any claims
and demands of whatever nature (other than the liabilities
PAGE 82
expressly assumed by Buyer under this Agreement) asserted against
Buyer by any creditor of Seller for noncompliance by Seller or
Buyer with any Bulk sales laws or similar laws which may be
applicable to the sale or transfer of the Assets hereunder.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written and effective as of December 31, 1994.
BUYER: ▇▇▇▇▇▇ OCEANICS PACIFIC LTD.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
SELLER: ▇▇▇▇▇▇ FALCON I, LTD.
By ▇▇▇▇▇▇ FALCON CO., its General
Partner
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
AGREED AND CONSENTED
this 14th day of February 1995:
▇▇▇▇▇▇ FALCON CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
PHILADELPHIA FALCON
DRILLING CORPORATION
By CIGNA International Finance Inc., its Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President