EXHIBIT 10.7
Execution Copy
ASSIGNMENT OF DRILLING CONTRACT
THIS ASSIGNMENT OF DRILLING CONTRACT (this "Agreement"), is
made as of August 12, 1999, by RBF Exploration Co., a corporation
organized under the laws of the State of Nevada ("Assignor"), to
the Trustee from time to time under that certain Trust Indenture
and Security Agreement (the "Trust Indenture") dated as of even
date herewith between Assignor and Chase Bank of Texas, National
Association, as trustee (together with its successors and
assigns, the "Assignee"). Unless otherwise defined herein, all
capitalized terms used herein shall have the respective meanings
assigned to such terms in the Trust Indenture.
WHEREAS, Shell Deepwater Development Inc. ("SDDI") and
Assignor are parties to that certain Deep Water Rig Contract
dated August 12, 1998 (the "SDDI Contract");
WHEREAS, the Trust Indenture provides for, among other
things, the pledge of certain collateral and the issuance of
$200,000,000.00 Senior Secured Class A1 Notes and the issuance of
$50,000,000.00 Senior Secured Class A2 Notes (collectively, the
"Notes"), subject to the terms and conditions contained therein;
and
WHEREAS, in connection with the sale of the Notes, Assignor
has entered into certain Note Purchase Agreements dated August
12, 1999 (the "Note Purchase Agreements") with various Note
purchasers (the "Note Holders"); and
WHEREAS, in connection with the Trust Indenture, and the
pledge of collateral related thereto, Assignor on even date
herewith entered into that certain First Preferred Ship Mortgage
(the "First Preferred Ship Mortgage") on the vessel to be
documented under U.S. flag with the name DEEPWATER NAUTILUS (the
"Drilling Rig", or sometimes the "Vessel"); and
WHEREAS, in consideration of entering into the Note Purchase
Agreements, the Note Holders have required that Assignor enter
into this Agreement for the assignment of all revenues due or to
become due to Assignor relating to the SDDI Contract;
NOW, THEREFORE, in consideration of the mutual premises and
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Assignment. As security for the obligations
secured by the Trust Indenture and the other Project Documents,
the Assignor hereby grants, sells, conveys, assigns, transfers,
sets over, mortgages and pledges to the Assignee, and unto the
Assignee's successors and assigns, all its right, title,
interest, claim and demand in and to:
(i) all of the Assignor's rights in the SDDI Contract;
(ii) all monies whatsoever due or to become due to
Assignor arising out of the SDDI Contract, all
accounts reflected on Assignor's books relating to
such payments and all written evidence of the
foregoing, including all invoices, statements, and
other writings rendered under the SDDI Contract;
(iii) all other monies whatsoever due or to become
due to the Assignor arising out of the use or
operation of the Vessel pursuant to any employment
of the Vessel, including, but not limited to the
SDDI Contract, all day rate payments, freight,
charter hire and passage monies, proceeds of
off-hire insurance, any other monies earned and to
be earned, due or to become due, or paid or
payable to, or for the account of, the Assignor,
of whatsoever nature, arising out of or as a
result of the SDDI Contract or any other drilling
contract for, or use, operation or management by
the Assignor or its agents of, the Vessel;
(iv) all monies and claims for monies due and to
become due to the Assignor under and all claims
for damages arising out of the breach (or payments
for variation or termination) of the SDDI Contract
and any other employment of the Vessel, any and
all other present and future drilling contracts,
and operations of every kin d whatsoever of the
Vessel that may now and hereafter accrue or belong
to the Assignor, its successors or assigns,
arising out of or in any way connected with its
present or future requisitions, drilling contracts,
use, operation or management of the Vessel or
arising out of or in any way connected with the
Vessel;
(v) all monies and claims for monies due and to
become due to the Assignor, and all claims for
damages against parties other than SDDI in respect
of the actual or constructive total or partial
loss of or requisition of use of or title to the
Vessel; and
(vi) any proceeds of any of the foregoing.
SECTION 2. Payments. The Assignor covenants that, (i)
it will have all the day rate payments, charter hires, earnings,
freights and other monies hereby assigned paid over directly to
the order of the Assignee, and if any such amounts are paid to or
received by the Assignor, it will promptly pay such amounts to
the Assignee; (ii) it will promptly notify in writing (and
deliver a duplicate copy of such notice to the Assignee) SDDI and
each of the Assignor's agents and representatives into whose
control may come any earnings and monies hereby assigned,
informing each such Person of this Agreement, and instructing
such addressee to remit promptly to the order of the Assignee all
earnings and monies hereby assigned which may come into such
Person's control and to continue to make such remittances until
such time as such Person may receive written notice to the
contrary directly from the Assignee; and (iii) it will instruct
each such Person to acknowledge directly to the Assignee receipt
of the Assignor's written notification and the instructions. Any
sum in respect of monies assigned hereunder which is in the hands
of any Assignor's agents and representatives referred to above,
shall be deemed to have been received by them for the use and on
behalf of the Assignee and shall be promptly paid to the
Assignee.
SECTION 3. Limitation on Assignee's Liability. Anything
herein contained to the contrary notwithstanding, the Assignee,
each Note Holder, each Credit Support Party and their respective
successors and assigns shall have no obligation or liability
under the SDDI Contract, any other agreement or under any other
drilling contract by reason of or arising out of this Agreement,
and the Assignee, each Note Holder, each Credit Support Party,
and their respective successors and assigns, shall not be
required or obligated in any manner to perform or fulfill any
obligations of the Assignor under or pursuant to any agreement,
drilling contract or charter or to make any payment or to make
any inquiry as to the nature or sufficiency of any payment
received by it or to present or file any claim, or to take any
other action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled
hereunder at any time or times.
SECTION 4. Appointment. The Assignor hereby constitutes
the Assignee, and its successors and assigns, whether or not an
Indenture Event of Default shall have occurred and be continuing,
its true and lawful attorney-in-fact, irrevocably, with full
power, in the name of the Assignor or otherwise, to receive,
compound and give acquittance for any and all monies and claims
for monies due and to become due, property and rights hereby
assigned, to endorse any checks or other instruments or orders in
connection therewith, to file any document or to take any action
or institute any proceedings which the Assignee, and its
successors and assigns, may deem necessary or advisable in the
premises, and to take any action in the name of the Assignor or
otherwise, which the Assignor is obligated to take hereunder.
SECTION 5. Consideration. The powers and authorities
granted to the Assignee, and its successors or assigns, herein,
having been given for valuable consideration and coupled with an
interest, are hereby declared to be irrevocable.
SECTION 6. Remedies. The Assignor hereby agrees that if
an Indenture Event of Default shall have occurred and be
continuing, the Assignee shall have the right, but not the
obligation, in its own name or in the name of the Assignee, to
exercise all of the Assignor's rights and, to perform any or all
of the Assignor's obligations under the SDDI Contract and any
other drilling contract respecting the Vessel as though named as
ship owner therein. The Assignor hereby agrees that the remedies
herein are cumulative, and not exclusive of any other remedies
provided by law or any other Project Document.
SECTION 7. Third Party Consents. The Assignor covenants
to obtain the consent of SDDI to this Agreement, in a form and in
substance reasonably satisfactory to the Assignee.
SECTION 8. Representations and Covenants. The Assignor
warrants and represents that it has not assigned or pledged the
rights, title and interest assigned hereunder to anyone other
than the Assignee. The Assignor hereby covenants that, without
the prior written consent thereto of the Assignee, it will not
assign or pledge the whole or any part of the rights, title and
interest hereby assigned to anyone other than the Assignee, and
it will not take or omit to take any action, the taking or
omission of which might result in an alteration or impairment of
this Agreement, or of any of the rights created by this
Agreement.
SECTION 9. Financing Statements. The Assignor hereby
appoints the Assignee as its attorney-in-fact to execute on the
Assignor's behalf and file any financing statements under the
Uniform Commercial Code, or papers of similar purpose or effect
in respect of this Agreement, but the foregoing shall not limit
the obligations of the Assignor under Section 10.
SECTION 10. Further Assurances. The Assignor agrees that
at any time and from time to time, upon the written request of
the Assignee, the Assignor will promptly and duly execute and
deliver any and all further instruments and documents as the
Assignee may deem desirable in obtaining the full benefits of
this Agreement.
SECTION 11. Successors and Assigns. Assignor may not
make an assignment or other transfer of this Agreement or any
interest herein by operation of law or otherwise unless it has
obtained the prior written consent of Assignee to such assignment
or other transfer, which consent may be withheld, conditioned or
delayed. Assignee may assign its right and benefits under this
Agreement to any successor or to any one or more of the holders
of the Notes or, upon payment by the Sureties pusuant to the
Performance Bond, to the Sureties.
SECTION 12. Notices. All notices to Assignor and
Assignee required to be served under this Agreement shall be in
writing and shall be served by registered mail and shall be
addressed as follows:
If to the Assignee: Chase Bank of Texas, National Association
1150 Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, V.P.
If to Assignor: RBF Exploration Co.
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: President
or at such other address as Assignor and Assignee may from time
to time designate in writing to the other party. All notices
required to be served under this Agreement will be effective when
received by the addressee.
SECTION 13. No Waiver; Amendments. Subject to applicable
statutes of limitations, no failure on the part of the Assignee
or any of its agents to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power, or
remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by Assignee or any of its agents of
any right, power, or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right,
power, or remedy. No amendment of this Agreement shall be
effective unless the same shall be in writing and signed by
Assignor and Assignee. No waiver of any provision of this
Agreement shall be effective unless signed by Assignee.
SECTION 14. Governing Law; Submission to Jurisdiction;
Etc. (a) This Agreement (including, but not limited to, the
validity and enforceability hereof and thereof) shall be governed
by, and construed in accordance with, the laws of the state of
New York, other than the conflict of laws rules thereof which
would require the application of the laws of another
jurisdiction.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
IN NEW YORK COUNTY OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, ASSIGNOR HEREBY ACCEPTS FOR ITSELF AND (TO THE
EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS. THIS SUBMISSION TO
JURISDICTION IS NON-EXCLUSIVE AND DOES NOT PRECLUDE ANY PERSON
FROM OBTAINING JURISDICTION OVER OTHER PARTIES IN ANY COURT
OTHERWISE HAVING JURISDICTION.
(c) ASSIGNOR HEREBY IRREVOCABLY DESIGNATES CAPITOL
SERVICES, INC. LOCATED AT 00 XXXXXX XXXXXX, XXXXX 000, XXXXXX,
XXX XXXX 00000, AS THE DESIGNEE, APPOINTEE AND AGENT OF ASSIGNOR
TO RECEIVE, FOR AND ON BEHALF OF ASSIGNOR, SERVICE OF PROCESS IN
SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT. IT IS UNDERSTOOD THAT A COPY OF
SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY
OVERNIGHT COURIER TO ASSIGNOR AT ITS ADDRESS SET FORTH HEREIN,
BUT THE FAILURE OF ASSIGNOR TO RECEIVE SUCH COPY SHALL NOT AFFECT
IN ANY WAY THE SERVICE OF SUCH PROCESS. ASSIGNOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ASSIGNOR AT ITS SAID ADDRESS, SUCH SERVICE TO
BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ASSIGNEE,
THE HOLDER OF A NOTE OR ANY OTHER PERSON TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ASSIGNOR IN ANY OTHER JURISDICTION.
(e) ASSIGNOR HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
PROJECT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (II)
IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT
OF COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (IV)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION.
SECTION 15. NO ORAL AGREEMENTS. THIS AGREEMENT, TOGETHER
WITH THE PROJECT DOCUMENTS, EMBODY THE ENTIRE AGREEMENT AND
UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL OTHER
AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO
THE SUBJECT MATTER HEREOF AND THEREOF. THIS AGREEMENT, TOGETHER
WITH THE PROJECT DOCUMENTS, REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 16. Third Party Beneficiaries. In addition to
Assignee, each of the Sureties, each of the Note Holders and each
of the Credit Support Parties is an intended third party
beneficiary of this Agreement.
[Remainder of Page is Intentionally Blank.]
IN WITNESS WHEREOF, Assignor has caused this Agreement to be
duly executed as of the day and year first above written.
RBF EXPLORATION CO.
By:
Name:
Title:
