EXECUTION COPY
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RBF EXPLORATION CO.
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$200,000,000 SENIOR SECURED CLASS A1 NOTES
$50,000,000 SENIOR SECURED CLASS A2 NOTES
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SECOND SUPPLEMENTAL INDENTURE
AND AMENDMENT
DATED AS OF June 2, 0000
XXXXX XXXX XX XXXXX, NATIONAL ASSOCIATION
Trustee
___________________
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This SECOND SUPPLEMENTAL INDENTURE AND AMENDMENT ("Second Supplemental
Indenture"), dated as of June 2, 2000 but effective as of the Effective Date (as
hereinafter defined), is among RBF Exploration Co., a Nevada corporation (the
"Issuer"), BTM Capital Corporation, a Delaware corporation (the "Owner"),
Nautilus Exploration Limited, a company incorporated in the Cayman Islands (the
"Standby Purchaser"), R&B Falcon Deepwater (UK) Limited, a company incorporated
in England and Wales (the "Lessee") and Chase Bank of Texas, National
Association, a banking association incorporated under the laws of the United
States, as Trustee (the "Trustee").
RECITALS
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WHEREAS, the Issuer and the Trustee entered into a Trust Indenture and
Security Agreement, dated as of August 12, 1999 as supplemented and amended by a
certain Supplemental Indenture and Amendment dated as of February 1, 2000
between the Issuer, the Owner and the Trustee (as amended the "Indenture"),
pursuant to which the Issuer has originally issued $200,000,000 in principal
amount of Senior Secured Class A1 Notes and $50,000,000 in principal amount of
Senior Secured Class A2 Notes (collectively, the "Notes") to the Note Holders
(as defined in the Indenture); and
WHEREAS, the Issuer and the Owner entered into a certain Equipment Sale and
Funding Agreement dated as of February 1, 2000 pursuant to which the Issuer
conveyed certain property and equipment relating to the Drilling Rig (as defined
in the Indenture) to the Owner and entered into related financing arrangements,
and the Issuer, the Owner, and Hyundai (as defined in the Indenture) entered
into a certain novation agreement of the Construction Contract (as defined in
the Indenture) pursuant to which the Owner acquired that part of the Drilling
Rig being constructed and supplied by Hyundai; and
WHEREAS, pursuant to the Indenture and the original Assignment of Drilling
Contract (as defined in the Indenture) the Issuer and/or the Owner have granted
certain liens and security interests in certain accounts, equipment and other
property as more fully described in the Indenture and the Assignment of Drilling
Contract and the Owner has granted a certain First Preferred Ship Mortgage (as
defined in the Indenture) covering among other things the Drilling Rig to the
Trustee for the benefit of the Note Holders to secure among other things the
Notes (all such indebtedness including, without limitation, the Notes is herein
referred to as the "Senior Indebtedness"); and
WHEREAS, the Owner and Sovereign Corporate Limited, a company incorporated
in England and Wales ("Sovereign") have entered into a certain Hire Purchase
Agreement dated as of March 20, 2000 with respect to the Drilling Rig, which
requires the consent of the Trustee and the Note Holders (as amended by a Side
Letter of even date herewith and as may further be amended, the "Hire Purchase
Agreement"), and Sovereign now proposes to lease the Drilling Rig to the Lessee
pursuant to a certain Lease Agreement of even date herewith a copy of which is
attached hereto as Exhibit A (the "Lease"); and
WHEREAS, Sovereign, the Lessee, the Owner, the Trustee, the Standby
Purchaser and Alliance & Leicester Group Treasury plc (in such capacity and
including successor entities, the "Proceeds Account Bank") have entered into a
Deed of Proceeds and Priorities of even date herewith (the "Deed of Proceeds");
and
WHEREAS, pursuant to the Hire Purchase Agreement the Owner proposes to
grant in favor of Sovereign a Second Naval Mortgage covering the Drilling Rig as
security for the obligations of the Lessee under the Lease, a copy of which is
attached hereto as Exhibit B-1 (the "Second Preferred Ship Mortgage"); and
WHEREAS, the consent of the Trustee is required for the Owner to grant the
Second Preferred Ship Mortgage, and the Note Holders have consented to the
Trustee's giving such consent pursuant to this Second Supplemental Indenture and
an Amendment and Supplement to First Naval Mortgage of even date herewith, a
copy of which is attached hereto as Exhibit B-2 (the "Amendment to First
Mortgage"); and
WHEREAS, Sovereign, the Standby Purchaser, the Lessee, the Owner, the
Issuer and the Trustee are entering into a Subordination Agreement, a copy of
which is attached as Exhibit C (the "Subordination Agreement"); and
WHEREAS, the Standby Purchaser and Sovereign are entering into a Standby
Put-Option Agreement, a copy of which is attached as Exhibit D (the "Put-Option
Agreement"); and
WHEREAS, the Standby Purchaser and the Lessee are entering into a Standby
Lease Agreement, a copy of which is attached as Exhibit E (the "Standby Lease");
and
WHEREAS, the Issuer, the Lessee and SDDI, with the consent of the Trustee,
are entering into a Transfer and Amendment Agreement in the form of Exhibit F
("Transfer Agreement"); and
WHEREAS, the Issuer and Commerzbank AG are entering into a Reimbursement
Agreement of even date herewith ("Reimbursement Agreement"), a Deposit Agreement
and Deposit Charge of even date herewith ("Deposit Agreement") and a
Counterparty Payment Agreement of even date herewith ("Counterparty Payment
Agreement" and collectively with the Reimbursement Agreement and the Deposit
Agreement, the "Assumption Documents"); and
WHEREAS, the Note Holders desire a liquidity facility to cover for a
specified period of time shortfalls in the repayment of interest on the Notes
resulting from certain insolvency events with respect to the Owner and, thus,
Swiss Re Financial Products Corporation ("Liquidity Provider (Swiss Re)") and
the Trustee have entered into an Irrevocable Revolving Credit Agreement of even
date herewith ("Credit Agreement"); and
WHEREAS, the Lessee is entering into a Fixed and Floating Security Document
of even date herewith ("Debenture") in favor of the Trustee; and
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WHEREAS, Section 13.8 of the Indenture provides that the Indenture may be
amended or supplemented subject to the provisions of Article 11 thereof; and
WHEREAS, as of the Effective Date, the Performance Bond (as defined in the
Indenture) will have expired by its terms and the Trustee shall return, with all
deliberate speed, the Performance Bond to the Sureties (as defined in the
Indenture); and
WHEREAS, pursuant to Section 11.2 of the Indenture, each of the Note
Holders have consented to the Trustee entering into this Second Supplemental
Indenture and each other Lease Implementation Document to which the Trustee is a
party; and
WHEREAS, the Issuer, the Owner and the Trustee now desire, with the consent
of each of the Note Holders, to amend and supplement the Indenture to consent to
and provide for the transactions above described and to allow for and make the
Standby Purchaser and the Lessee parties thereto;
NOW, THEREFORE, to comply with the provisions of the Indenture and in
consideration of the above premises, the Issuer, the Owner, the Standby
Purchaser, the Lessee and the Trustee (collectively, the "Parties") covenant
and agree for the equal and proportionate benefit of the respective Note Holders
as follows:
ARTICLE 1
GENERAL
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SECTION 1.01. This Second Supplemental Indenture is supplemental to the
Indenture and does and shall be deemed to form a part of, and shall be construed
in connection with and as part of, the Indenture for any and all purposes. From
the Effective Date, in accordance with Section 13.8 and Article 11 of the
Indenture, and by executing and delivering this Second Supplemental Indenture,
the Parties whose signatures appear below are subject to all of the provisions
of the Indenture and this Second Supplemental Indenture.
SECTION 1.02. Capitalized terms not otherwise defined herein shall have
the respective meaning ascribed thereto in the Indenture.
ARTICLE 2
TRUSTEE CONSENTS
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SECTION 2.01. With the express written consent of each of the Note
Holders, but subject to Article 8 hereof, the Trustee hereby consents to the
following:
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(a) the Owner and Sovereign implementing the Hire Purchase Agreement and
Sovereign and the Lessee entering into the Lease;
(b) the Owner's execution and delivery of the Second Preferred Ship
Mortgage in favor of Sovereign;
(c) the execution and delivery of the Transfer Agreement, subject to the
Trustee's security interest in and assignment of proceeds under the SDDI
Contract;
(d) the Standby Purchaser and Sovereign entering into the Put-Option
Agreement and the Standby Purchaser and Lessee entering into the Standby Lease
and the Deed of Proceeds;
(e) the termination of the Operation and Maintenance Agreement and its
replacement in the form of Exhibit G hereto;
(f) the application of the First Installment (as defined in the Hire
Purchase Agreement) proceeds to the repayment in full of the Hull Loan (as
defined in the Sale and Funding Agreement) and the Equipment Purchase Price (as
defined in the Sale and Funding Agreement), and the Issuer's acknowledgement to
the Owner that the Hull Loan and the Equipment Purchase Price have thereby been
fully satisfied and discharged;
(g) the use of the proceeds received from the Owner in satisfaction and
discharge of the Hull Loan and the Equipment Purchase Price to meet certain of
the Issuer's obligations and liabilities under or in connection with the Lease
Implementation Documents and the Assumption Documents;
(h) the transfer by the Issuer to the Parent of any proceeds of cash
collateral returned to the Issuer pursuant to the Assumption Documents and the
release of such proceeds from the Trust Estate;
(i) the Issuer entering into each of the Reimbursement Agreement,
Counterparty Payment Agreement and the Deposit Agreement; and
(j) the execution, delivery and performance of any other Lease
Implementation Document to the extent such performance does not violate any of
the terms and provisions of the Indenture.
ARTICLE 3
ADDITIONAL SECURITY INTERESTS
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SECTION 3.01. To secure the prompt and complete payment of the
principal of, and interest and any applicable Make-Whole Amount on, all of the
Notes issued and delivered and Outstanding,
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the payment of all other sums owing under the Indenture and under all other
Project Documents (including, without limitation, the obligations of the Trustee
under Section 2.05 of the Credit Agreement) (the "Project Indebtedness") and the
performance of the covenants contained in the Indenture and in all other Project
Documents, and in consideration of the premises and of the covenants contained
herein and the sum of One Dollar ($1.00) paid by the Trustee to the Standby
Purchaser at or before the delivery hereof, the receipt and sufficiency whereof
are hereby acknowledged, the Standby Purchaser has hereby granted, bargained,
sold, conveyed, assigned, transferred, mortgaged, affected, pledged, set over,
confirmed, granted a continuing security interest in, and hypothecated and does
hereby grant, bargain, sell, convey, assign, transfer, mortgage, affect, pledge,
set over, confirm, grant a continuing security interest to the Trustee and to
any co-trustee or separate trustee hereafter acting pursuant to the Indenture,
and to their respective successors and assigns in trust forever (subject to
Section 12.1 of the Indenture), all of its right, title and interest in, to and
under the following described Properties whether now owned, existing or
hereafter acquired or arising (all of such Properties, including without
limitation all properties hereafter specifically subjected to the liens of the
Indenture by any indenture supplemental thereto to which the Standby Purchaser
has consented in writing, being hereinafter collectively referred to as the
"Standby Purchaser Trust Estate"):
(a) the Equipment and the Drilling Rig;
(b) the Deed of Proceeds, Hire Purchase Agreement and the Standby
Lease together with any amendments or modifications to any of the foregoing
and all payments under and all accounts and General Intangibles generated
therefrom;
(c) any insurance proceeds (other than insurance proceeds payable to
the Standby Purchaser under liability policies for tort, environmental and
similar liabilities), condemnation proceeds and the accounts, deposit
accounts, issues, profits, products, revenues and other income of and from
the Drilling Rig and/or the Equipment and all the estate, right, title and
interest of every nature whatsoever of the Standby Purchaser in and to the
same and every part thereof; and
(d) all proceeds and products of any of the foregoing.
Notwithstanding the foregoing, the Standby Purchaser Trust Estate shall not
include the Standby Purchaser Excepted Properties.
SECTION 3.02. To secure the prompt and complete payment of the Project
Indebtedness and the performance of the covenants contained in the Indenture and
in all other Project Documents, and in consideration of the premises and of the
covenants contained herein and the sum of One Dollar ($1.00) paid by the Trustee
to the Lessee at or before the delivery hereof, the receipt and sufficiency
whereof are hereby acknowledged, the Lessee has hereby granted, bargained, sold,
conveyed, assigned, transferred, mortgaged, affected, pledged, set over,
confirmed, granted a continuing security interest in, and hypothecated and does
hereby grant, bargain, sell, convey, assign, transfer, mortgage, affect, pledge,
set over, confirm, grant a continuing security interest to the Trustee and to
any co-trustee or separate trustee hereafter acting pursuant to the Indenture,
and to their respective
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successors and assigns in trust forever (subject to Section 12.1 of the
Indenture), all of its right, title and interest in, to and under the following
described Properties whether now owned, existing or hereafter acquired or
arising (all of such Properties, including without limitation all properties
hereafter specifically subjected to the liens of the Indenture by any indenture
supplemental thereto to which the Lessee has consented in writing, being
hereinafter collectively referred to as the "Lessee Trust Estate" and together
with the Standby Purchaser Trust Estate called the "Second Additional Trust
Estate"):
(a) All equipment, inventory, fixtures and other goods (including,
without limitation, the Drilling Rig) in all forms, wherever located and
whether now or hereafter existing, which are owned by the Lessee or in
which the Lessee otherwise has any rights and all parts thereof, all
accessions thereto, all replacements or substitutions therefor, all
accounts now or hereafter arising in connection therewith, and all chattel
paper, documents and general intangibles covering or relating thereto;
(b) All accounts, General Intangibles (including without limitation,
the Deed of Proceeds, the SDDI Contract, the Operation and Maintenance
Agreement, the Lease and the Standby Lease), instruments, chattel paper and
documents, deposit accounts (other than the Lessee Account to the extent it
contains the initial deposit therein and the Lessee Excepted Properties)
and investment property (including, without limitation, all Permitted
Investments) now owned or hereafter acquired;
(c) All Properties subjected to the Lien of the Indenture by each
supplemental indenture entered into and delivered pursuant to Article 11 of
the Indenture;
(d) All insurance proceeds (other than insurance proceeds payable to
the Lessee under liability policies for tort, environmental and similar
liabilities), condemnation proceeds and the accounts, issues, profits,
products, revenues and other income of and from the SDDI Contract and the
other Properties subjected or required to be subjected to the Lien of the
Indenture and all the estate, right, title and interest of every nature
whatsoever of the Lessee in and to the same and every part thereof;
(e) The Collection Account, the Lessee Collection Account and all
other monies now or hereafter paid or deposited or required to be paid or
deposited to or with a Trustee pursuant to Section 4.1, 4.2, 4.3, 5.1 or
5.3 of the Indenture or any other term hereof or any term of the other
Project Documents and held or required to be held by any Trustee under the
Indenture;
(f) Any and all other Properties and any and all other rights,
interests and privileges granted by the Lessee to any Trustee in accordance
with the provisions of the Indenture and pursuant to or in connection with
the provisions of the other Project Documents and all Permitted Investments
with respect to any of the foregoing; and
(g) All proceeds and products of any of the foregoing.
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Notwithstanding the foregoing, the Lessee Trust Estate shall not include the
Lessee Excepted Properties.
The security interests granted under and pursuant to Sections 3.01 and 3.02
above are granted under and pursuant to the Indenture and all of the Second
Additional Trust Estate is and shall be considered a part of the Collateral and
the Trust Estate under and pursuant to the Indenture and this Second
Supplemental Indenture for all intents and purposes. All of the terms and
conditions of the Indenture with respect to the Collateral and the Trust Estate
shall apply to the Second Additional Trust Estate. Specifically and in this
connection the provisions of Sections 7.4 through and including 7.12 of the
Indenture apply to the Second Additional Trust Estate and the provisions of such
Sections with respect to the "Issuer" apply equally to the Standby Purchaser and
the Lessee.
Section 3.03. In recognition of the willingness of the Lessee to grant the
security in the Lessee Trust Estate under or pursuant to this Indenture, the
Trustee and the Note Holders are prepared to limit their recourse against the
Lessee in the manner, and subject to the provisions, set out in this Section
3.03, and each of the parties to this Indenture (including the Trustee for
itself and on behalf of the Note Holders) consents to such limitation of
recourse by the Trustee and the Note Holders.
The Trustee acknowledges and agrees that all moneys, obligations and
liabilities which are to be paid, repaid, performed, satisfied or discharged by
the Lessee under and pursuant to this Indenture shall be recoverable by the
Trustee and the Note Holders only from and to the extent of the Lessee's
interest in the Lessee Trust Estate and that the Lessee shall not be personally
liable for such moneys, obligations and liabilities; provided, however:
(a) the foregoing limitation of recourse to the Lessee shall be
ignored in the determination of the Project Indebtedness for which the
Lessee is liable, and the liabilities and obligations of the Lessee shall
include all moneys, obligations and liabilities which are to be paid,
repaid, performed, satisfied or discharged by the Lessee, notwithstanding
the foregoing limitation of recourse; and
(b) without limiting Sections 7.9 and 7.11 of the Indenture, the
Trustee shall be entitled (but not obligated, without prejudice to the
other powers, rights and remedies of the Trustee under or pursuant to the
Indenture and the other Project Documents or as a matter at law or in
equity):
(i) to take any legal action or proceeding to obtain a
declaratory or other similar judgment or order as to the obligations
and liabilities of the Lessee; and
(ii) to the extent that such claim or proof is a necessary
procedural step to enable the realization or enforcement of the full
benefit of the Indenture and the Lessee Trust Estate, or to the
exercise by the Trustee of any right, title, interest and benefit in,
to, under or pursuant to the Indenture or the Lessee Trust Estate, to
make or file an action seeking relief in an insolvency, bankruptcy or
analogous or related
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proceeding against the Lessee or to make or file a claim or proof in
an insolvency, bankruptcy or analogous or related proceeding in
relation to the Lessee.
Notwithstanding the foregoing provisions of this Section 3.03, the Lessee
is and shall remain personally and fully liable for any and all Indemnity
Matters suffered, incurred or paid by the Trustee or any Note Holder (and the
Trustee and any Note Holder shall be free to pursue all powers, rights and
remedies against the Lessee without any restriction) as a result of:
(a) the Lessee's gross negligence or willful misconduct with respect
to any aspect of the transactions contemplated by the Project Documents; or
(b) the performance, satisfaction or discharge of all or any of the
Lessee's obligations under the Indenture (other than its liability for
Project Indebtedness under Section 3.01 above), the Operation and
Maintenance Agreement, the SDDI Contract or any other Project Document; or
(c) any representation or warranty made or given (or, as the case may
be, repeated) by the Lessee herein, in the Indenture, the Deed of Proceeds
or any other Project Document being untrue, inaccurate or misleading in any
material respect when made, given or repeated.
The foregoing provisions of this Section 3.03 shall limit the personal
liability of the Lessee only for the payment, repayment, performance,
satisfaction and discharge of moneys, obligations and liabilities under and
pursuant to the Project Documents but shall not:
(a) limit or restrict in any way the accrual of interest on any moneys
(except that limitations as to the personal liability of the Lessee shall
also apply to the payment of such interest); or
(b) derogate from or otherwise limit any power or right of the Trustee
to enforce, recover, realize or apply the Lessee Trust Estate; and the
Trustee shall be entitled to reimbursement in full of all moneys payable or
expressed to be payable by the Lessee in respect of Project Indebtedness
from the proceeds of such enforcement, recovery, realization or
application.
ARTICLE 4
LESSEE COVENANTS
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SECTION 4.01. Notwithstanding any of the foregoing consents or any
other terms hereof, the Lessee covenants and agrees that it will not assign or
transfer its interest in any of the Project Documents or any Property that is
part of the Trust Estate (including, without limitation, any interest in the
SDDI Contract, the Drilling Rig, the Lease and the Standby Lease) to any other
Person without
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(i) the prior express written consent of Trustee and each of the Note Holders
and (ii) prior written notice to each Rating Agency.
SECTION 4.02. The Lessee covenants and agrees that until payment is made in
full of all of the Notes and all other amounts payable by the Issuer under the
Indenture or secured thereby, the Lessee shall:
(a) comply with and perform all of the covenants of the Issuer (as if
the references therein to the Issuer were also references to the Lessee)
under Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.9, 8.10, 8.11, 8.12 and 8.13
(excluding the requirement under Section 8.13(iv) to elect an Independent
Director to the Lessee's Board of Directors) and Sections 9.1, 9.2, 9.3,
9.4, 9.5, 9.7, 9.12, 9.13, 9.14, 9.15, 9.17, 9.18, 9.19 and 9.20 of the
Indenture provided, however, for this purpose:
(i) Section 9.1(a) shall be deemed to include a reference to the
Lease;
(ii) the exceptions to Section 9.2 shall be deemed to include the
Second Preferred Ship Mortgage and the Second Priority Assignments;
(iii) Section 9.4 shall be deemed to be amended in its entirety
to read as follows:
"9.4 Dividends, Distributions and Redemptions. The Lessee
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will not purchase, redeem or otherwise acquire for value any of
its stock now or hereafter outstanding, return any capital to its
stockholder or make any distributions of its assets to its
stockholder, except for ordinary dividends paid to Parent.";
(iv) the Lessee's entering into the Lease shall be deemed to be a
permitted exception to Section 9.7;
(v) the Lessee's entering into leasing arrangements (including,
without limitation, the leasing of furnished office equipment and
arrangements with Affiliates for the Affiliates' provisioning of
payroll and secretarial services to the Lessee) on reasonable
commercial terms incidental to and in the ordinary course of Lessee's
business activities, which have been limited by Section 4.10 hereto,
and the Lessee's entering into service and/or employment contracts
with up to three directors, a single Drilling Rig manager and up to
two Drilling Rig superintendents each of which shall be deemed a
permitted exception, to the extent required, to Sections 9.7 and 9.14.
(b) execute such documents and instruments as required to promptly
cure any defects in the creation, execution and delivery of any of the
Project Documents to which it is a party and all such other documents,
agreements (including, without limitation, account control agreements) and
instruments to comply with or accomplish the covenants and agreements of
the Issuer, Lessee or the Owner in the Project Documents or to further
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evidence or more fully describe the Lessee Trust Estate or to correct any
omissions in the Project Documents to which it is a party, or to state more
fully the security obligations set out herein or in any of the other
Project Documents, or to perfect, protect or preserve any Liens created by
the Lessee (or others to the extent Lessee's execution or action is
required) pursuant hereto or any of the other Project Documents, or to make
any recordings or obtain any consents as may be necessary or appropriate in
connection therewith. Further, the Lessee will promptly execute and deliver
or cause to be executed or delivered all further instruments and documents
and take all further action that may be necessary or desirable or that the
Trustee may request in order to (a) perfect and protect the Liens and other
rights created or purported to be created by the Lessee hereby and by the
other Project Documents and the first priority of such Liens and other
rights; (b) enable the Trustee to exercise and enforce its rights and
remedies hereunder in respect of the Collateral; or (c) otherwise effect
the purposes of the Indenture, including, without limitation: executing and
filing such supplements to the Indenture and such financing or continuation
statements (or amendments thereto) as may be necessary or desirable or that
the Trustee may reasonably request in order to perfect and preserve the
Liens created or purported to be created by the Lessee (or others to the
extent Lessee's execution or action is required) hereby or thereby;
(c) enter into, perform and cause to be performed each of the Lease,
the Standby Lease, the SDDI Contract through the Transfer Agreement, the
Transfer Agreement and the Operation and Maintenance Agreement and shall
not agree to any amendments, modifications or waivers of the terms thereof
without express written consent of the Trustee;
(d) provide prompt written notice to the Trustee of any Material
default under the SDDI Contract, the Lease or the Standby Lease; and
(e) provide to SDDI (with copies to the Trustee) such duly executed
forms or statements (including Internal Revenue Service Form W-8ECI or
W-9), and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (i) an
income tax treaty between the United States and the country of residence of
the Lessee, (ii) the Code, or (iii) any applicable rule or regulation under
the Code, permit SDDI to make payments to the Lessee, the Issuer or the
Trustee pursuant to the SDDI Contract free of deduction or withholding of
Taxes.
SECTION 4.03. The Lessee agrees that it will not take any action (i)
which it knows to be contrary to covenants and other terms and provisions of the
Indenture, the First Preferred Ship Mortgage or any other Project Document or
(ii) which it knows will inhibit the performance of such covenants, terms and
provisions by the Issuer, the Owner, the Trustee, the Standby Purchaser or
otherwise.
SECTION 4.04. Subject to Section 3.03 above, the Lessee hereby assumes
and agrees to pay as and when due the Project Indebtedness. The Lessee agrees
that any and all payments and other proceeds (other than Total Loss Proceeds (as
defined in the Deed of Proceeds) which shall be payable as provided in the Deed
of Proceeds) paid or payable from or under the Trust Estate (including without
limitation, the SDDI Contract) shall be paid into the Lessee Collection Account
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established with the Trustee under Section 6.02 hereof and applied as provided
in Section 6.03 hereof. Notwithstanding the foregoing, the Issuer remains fully
and completely liable to pay the Project Indebtedness as and when due.
SECTION 4.05. The Lessee represents and warrants that (a) the
execution, delivery, performance and enforcement of this Second Supplemental
Indenture or any of the documents referred to herein or in the whereas clauses
hereto will not: (i) subject the Trustee or any Note Holder to any Tax imposed
by the United Kingdom or any taxing authority thereof or therein; (ii) require
that the Trustee or any Note Holder qualify, or otherwise become subject to
regulation, under any law, rule, regulation or decree of the United Kingdom or
any governmental authority thereof or therein; provided always, that the
correctness of this representation and warranty relative to any Note Holder
depends upon that Note Holder not having purchased its Note or Notes through any
office, branch, place of business, permanent establishment or other taxable
presence in the United Kingdom, or through any other physical or economic
connection with the United Kingdom of any kind whether on its own account or
through any agency and (b) this Second Supplemental Indenture and the other
documents referred to herein and in the whereas clauses hereto are in proper
form for the enforcement thereof in the United Kingdom and that in order to
enforce the same in the United Kingdom it is not necessary that any Tax be paid
or registration or other formality complied with.
SECTION 4.06. The Lessee shall not exercise any rights granted to the
Lessee pursuant to Clause 4.1 of the Transfer Agreement without the prior
written consent of the Trustee and the Note Holders.
SECTION 4.07. If at any time any applicable law, regulation or regulatory
requirement or any governmental authority, monetary agency or central bank
requires any deduction or withholding in respect of Lessee Related Taxes from
any payment due hereunder or under any of the other Project Documents the Lessee
shall:
(a) if the payment is to be made by the Lessee, increase the payment
in respect of which the deduction or withholding is required to the extent
necessary to ensure that, after the making of such deduction or
withholding, the payee receives on the due date for such payment a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made;
(b) if the payment is to be made by any person other than the Lessee,
pay directly to the payee such sum as will, after taking into account any
deduction or withholding which is required to be made in respect of such
sum, enable the payee to receive on the due date for payment a net sum
equal to the sum which the payee would have received in the absence of any
obligation to make a deduction or withholding;
(c) pay to the relevant authority within the period for payment
permitted by applicable law the full amount of the deduction or withholding
(including, but without prejudice to the generality of the foregoing, the
full amount of any deduction or withholding from any increased amount paid
pursuant to this Section 4.07); and
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(d) furnish to the payee within the period for payment permitted by
applicable law, appropriate receipts evidencing payment to the relevant
authority of all amounts deducted or withheld as aforesaid.
Provided that, if a payee has retained and actually utilized a Tax benefit by
reason of any deduction or withholding for which the Lessee has paid such payee
("Tax Benefit Payee"), then the Lessee shall be entitled to a reimbursement of
the amount by which the Tax Benefit Payee actually benefited and either (i) the
Tax Benefit Payee (if it is a party to this Second Supplemental Indenture) shall
reimburse to the Lessee the amount of such benefit or (ii) the Lessee may limit
any future payments to the Tax Benefit Payee (if it is not a party to this
Second Supplemental Indenture) by the amount of such Tax benefit utilized less
any amounts received by the Lessee from such Tax Benefit Payee.
Provided further, and notwithstanding the proviso to Section 4.05, if at any
time any applicable law, regulation or regulatory requirement or any
governmental authority, monetary agency or central bank having jurisdiction in
or over the United Kingdom (including any taxing authority thereof or therein)
imposes any Taxes on the Trustee or any Note Holder as a result of it being a
party to the Lease Implementation Documents or their implementation or
enforcement, the Lessee shall indemnify the affected Trustee or Note holder and
hold it harmless against and promptly on demand pay or reimburse it for such
Tax, regardless of whether any Note Holder purchased its Note or Notes through
any office, branch, place of business, permanent establishment or other taxable
presence in the United Kingdom, or through any other physical or economic
connection with the United Kingdom of any kind whether on its own account or
through any agency.
SECTION 4.08. The Lessee represents and warrants that each of the
following are true and correct as of the date hereof:
(a) Organization, Power and Authority. The Lessee is a corporation
------------------------------------
duly organized, validly existing and in good standing under the laws of
England and Wales, and is duly qualified as a foreign corporation and is in
good standing in each jurisdiction in which such qualification is required
by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Lessee has
the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver each of the
Lease Implementation Documents to which it is a party and to perform the
provisions hereof and thereof.
(b) Authorization. Each of the Lease Implementation Documents have
-------------
been duly authorized by all necessary corporate action on the part of the
Lessee, and each of the Lease Implementation Documents to which the Lessee
is a party constitute a legal, valid and binding obligation of the Lessee
enforceable against the Lessee in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
12
(c) Ownership. The Lessee is a wholly-owned subsidiary (directly or
---------
indirectly) of the Parent.
(d) Compliance with Laws, Other Instruments, etc. The execution,
-------------------------------------------------
delivery and performance by the Lessee of the Lease Implementation
Documents to which it is a party will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation of any
Lien in respect of any property of the Lessee under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other Material agreement or instrument
to which Lessee is bound or by which the Lessee or any of its respective
properties may be bound or affected, (ii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to the Lessee or (iii) violate any provision of any
statute or other rule or regulation of any Governmental Authority
applicable to the Lessee.
(e) Governmental Authorizations, etc. No consent, approval or
----------------------------------
authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution,
delivery or performance by the Lessee of any Lease Implementation Document
except for those consents, filing approvals, and authorizations required in
the ordinary course of the operation of the Drilling Rig.
(f) Litigation. Except as disclosed in the letter dated June 2, 2000
----------
from the Lessee to the Trustee, there are no actions, suits or proceedings
pending or, to the knowledge of the Lessee, threatened against or affecting
the Lessee or any property of the Lessee in any court or before any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(g) Orders, Judgments and Decrees. The Lessee is not in default under
-----------------------------
any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance,
rule or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
(h) Title to Property. The Lessee has good and valid title to its
-------------------
respective Material properties free and clear of Liens other than Excepted
Liens. All Material leases are valid and subsisting and are in full force
and effect in all Material respects. The Lessee owns or possesses all
licenses, permits, franchises, authorizations, patents, copyrights, service
marks, trademarks and trade names, or rights thereto, that are Material,
without known conflict with the rights of others. The Lessee owns or
possesses all licenses, permits, franchises, authorizations, patents,
copyrights, service marks, trademarks and trade names, or rights thereto,
without any known conflict with the rights of others, necessary to own and
operate the Drilling Rig and perform the SDDI Contract as contemplated
therein.
13
(i) ERISA. The Lessee has no Plan and makes no contributions to any
-----
Plan.
(j) Debt. The Lessee has no Debt as of the date hereof other than the
----
Debt created or assumed by the Lease Implementation Documents.
(k) Status. Neither the Lessee nor any Affiliate thereof is subject to
------
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Interstate Commerce
Act, as amended, or the Federal Power Act, as amended.
(l) Subsidiaries. The Lessee has no Subsidiaries.
------------
(m) Nature of Business. The Lessee is organized for the purpose of,
--------------------
among other things, owning, leasing and operating ships and other offshore
assets, but currently does not own, lease or occupy under license any
material asset apart from the Drilling Rig and its business premises, nor
does it currently engage directly or indirectly in any other business.
(n) Event of Default. No event has occurred and is continuing and no
-----------------
condition exists which, upon the execution and delivery of this Second
Supplemental Indenture, would constitute an Indenture Default or an
Indenture Event of Default with respect to any action of the Lessee. The
Lessee is not in violation in any respect of any term of its certificate of
incorporation or bylaws, and the Lessee is not in violation of any material
term in any Material agreement or other Material instrument to which it is
a party or by which it or any of its Property may be bound. Except for the
Lease Implementation Documents, there are no Material agreements or
Material instruments to which the Lessee is a party or by which it or any
of its Property is bound. Each representation made or deemed made by the
Lessee in any Lease Implementation Document or Project Document is true and
correct.
(o) Rig Classification. As of the date hereof, the Drilling Rig has
-------------------
been classified in the highest class available for rigs of its age and type
with the American Bureau of Shipping, free of any material requirements or
recommendations.
(p) Insurance. As of the date hereof, the Drilling Rig is covered by
---------
the insurance required by Section 2.13 of the First Preferred Ship Mortgage
and the other Project Documents and such insurance will be in full force
and effect and all premiums due in respect of such insurance will have been
paid.
(q) Filings. Within 21 days of the date hereof, all filings necessary
-------
or desirable to perfect the Liens and security interests of the Trustee
under this Second Supplemental Indenture in the Trust Estate as against
creditors and purchasers from the Lessee will have been duly made, and this
Second Supplemental Indenture will create a valid and perfected first
priority lien and security interest in said Trust Estate, effective against
creditors of and purchasers from the Lessee, securing all obligations
secured thereby.
14
SECTION 4.09. The Lessee will not cause or permit any change to be made in
its corporate name or identity or any change to be made in the address of its
chief executive office or principal place of business (presently being the
address set forth for copies to the Lessee in Section 7.04 hereof), unless the
Issuer shall have first notified the Trustee and each Note Holder of such change
at least thirty days prior to the effective date of such change and shall have
first taken all action required by the Trustee for the purpose of further
perfecting or protecting the rights of the Trustee in the Collateral. In any
notice furnished pursuant to this Section 4.09, the Issuer will state that the
notice is required by this Second Supplemental Indenture and contains facts that
may require additional filings of financing statements.
SECTION 4.10. The Lessee will not engage directly or indirectly in any
business or activity except owning and/or operating the Drilling Rig and any
activities incidental thereto, without the express written consent of the
Trustee in its absolute discretion.
ARTICLE 5
STANDBY PURCHASER COVENANTS
---------------------------
SECTION 5.01. Notwithstanding any of the foregoing consents or any
other terms hereof, the Standby Purchaser covenants and agrees that, except as
expressly permitted by the Deed of Proceeds, it will not assign or transfer its
interest in any Property that is part of the Trust Estate (including, without
limitation, any interest in the SDDI Contract, the Standby Lease or the Drilling
Rig) to any other Person without (i) the prior express written consent of the
Trustee and each of the Note Holders and (ii) prior written notice to each
Rating Agency.
SECTION 5.02. The Standby Purchaser covenants and agrees that, until
payment in full of all of the Notes, all interest thereon and all other amounts
payable under the Project Documents:
(a) Litigation. The Standby Purchaser shall promptly give to the
----------
Trustee notice of any material litigation or proceeding against or
adversely affecting the Standby Purchaser in which the amount involved is
not covered in full by insurance (over and above reasonable deductibles or
other self insured retentions) or in which the Standby Purchaser has
received notice from any insurer reserving its rights or contesting
coverage under any policy (subject to normal and customary deductibles, or
in which injunctive or similar relief is sought). The Standby Purchaser
will promptly notify the Trustee of all claims, judgments, Liens or other
encumbrances affecting any Property of the Standby Purchaser if the
aggregate value of such claims, judgments, Liens or other encumbrances
affecting such Property shall exceed $1,000,000.
(b) Maintenance. The Standby Purchaser shall: (i) preserve and
-----------
maintain its corporate existence and all of its material rights,
privileges, licenses and franchises; (ii) keep proper books of record and
account in which full, true and correct entries will be made of all
dealings or transactions of, or in relation to its business and activities;
(iii) comply with all Governmental Requirements if failure to comply with
such requirements will have a Material Adverse Affect; and (iv) pay and
discharge all Taxes, assessments and governmental charges or levies imposed
on it or on its income or profits or on any of its Property, all trade
accounts
15
payable in accordance with usual and customary business terms and all
claims for work, labour or materials prior to the date on which any Lien
(other than Liens for obligations that have not been outstanding more than
60 days, unless action has been taken to file or enforce such Liens) or
penalties attach thereto, except for such Tax, assessment, charge, levy,
account payable or claim, the payment of which is being contested in good
faith.
SECTION 5.03. The Standby Purchaser covenants and agrees that, until
payment in full of all of the Notes, all interest thereon and all other amounts
payable under the Project Documents, without the prior express written consent
to the contrary from the Trustee and each of the Note Holders:
(a) Debt. The Standby Purchaser will not incur, create, assume, suffer
----
to exist or otherwise become liable in respect of any Debt, except the
Notes, the Lease or other indebtedness owing to the Trustee or the Note
Holders under the Project Documents.
(b) Liens: The Standby Purchaser will not create, incur, assume or
-----
permit to exist any Lien on the Drilling Rig or any of its other Properties
now owned or hereafter acquired), or upon income or profits therefrom
except:
(i) Liens securing the payment of the Notes; and
(ii) during the period up to but including the Maturity Date, Excepted
Liens; and
(iii) the Second Preferred Ship Mortgage.
(c) Nature of Business. The Standby Purchaser will not engage directly
------------------
or indirectly in any business or activity except owning the Drilling Rig
and activities incidental thereto pursuant to the Lease Implementation
Documents.
(d) Limitation on Leases. The Standby Purchaser will not create,
----------------------
incur, assume or suffer to exist any obligation for the payment of rent or
hire of Property of any kind whatsoever (real or personal including capital
leases), under leases or lease agreements.
(e) Mergers, etc. The Standby Purchaser will not merge into or with or
------------
consolidate with any other Person, or sell, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its Property to any other Person other than as
contemplated by the Deed of Proceeds.
(f) Sale of Drilling Rig. The Standby Purchaser will not sell, lease,
--------------------
charter, assign, convey, dispose or otherwise transfer the Drilling Rig or
any interest therein other than in accordance with the Lease Implementation
Documents provided, however, this covenant shall not apply to equipment
appurtenant to the Drilling Rig which is obsolete and no longer required
for proper operation of the Drilling Rig or which is replaced by equipment
of equal or greater value.
16
(g) Location of Standby Purchaser; Change of Name of Standby
----------------------------------------------------------------
Purchaser. The Standby Purchaser will not cause or permit any change to be
---------
made in its corporate name or identity or any change to be made to its
chief executive office or principal place of business (presently being the
address set forth in Section 7.04 hereof), unless the Standby Purchaser
shall have first notified the Trustee of such change at least thirty days
prior to the effective date of such change and shall have first taken all
action required by the Trustee for the purpose of further perfecting or
protecting the rights of the Trustee in the Standby Purchaser Trust Estate.
In any notice furnished pursuant to this subsection 5.02(i), the Standby
Purchaser will state that the notice is required by this Indenture and
contains facts that may require additional filings of financing statements.
(h) Acquisition of Notes. The Standby Purchaser will not purchase,
----------------------
redeem, prepay or otherwise acquire any of the Outstanding Notes.
(i) Non-Petition Covenant. With respect to any CP Conduit that is a
----------------------
Purchaser, the Standby Purchaser hereby agrees that until the 368th day
following the maturity of the last maturing commercial paper note to be
issued by any such CP Conduit in connection with its funding of its
investment in the Notes, the Standby Purchaser will not institute, and will
not join with others in instituting, any involuntary bankruptcy or
analogous proceeding against any such CP Conduit under any bankruptcy,
reorganisation, receivership or similar law, domestic or foreign, as now or
hereafter in effect.
(j) Jurisdiction of Registration. The Standby Purchaser shall not
------------------------------
change the jurisdiction of registration of the Drilling Rig to another
jurisdiction, unless the Standby Purchaser, when directed by the Lessee,
has given the Trustee not less than 60 days prior written notice, the
Required Holders have consented (which consent shall not be unreasonably
withheld) and the Standby Purchaser has furnished the Trustee and the Note
Holders with a new replacement ship mortgage acceptable to the Trustee and
the Required Holders and appropriate opinions of counsel, acceptable in
form and substance to the Required Holders, with respect to such mortgage
and the filing and first priority thereof.
(k) Defects, etc. The Standby Purchaser shall execute such documents
-------------
and instruments as required to promptly cure any defects in the creation,
execution and delivery of any of the Project Documents to which it is a
party and all such other documents, agreements (including, without
limitation, account control agreements) and instruments to comply with or
accomplish the covenants and agreements of the Issuer or the Owner in the
Project Documents or to further evidence or more fully describe the Standby
Purchaser Trust Estate or to correct any omissions in the Project
Documents, or to state more fully the security obligations set out herein
or in any of the other Project Documents, or to perfect, protect or
preserve any Liens created pursuant hereto or any of the other Project
Documents, or to make any recordings or obtain any consents as may be
necessary or appropriate in connection therewith. Further, the Standby
Purchaser will promptly execute and deliver or cause to be executed or
delivered all further instruments and documents and take all further action
that may be necessary or desirable or that the Trustee may request in order
to (i) perfect and protect the Liens and other rights created or purported
to be created hereby and by the other Project Documents and the first
priority of such Liens and other rights;
17
(ii) enable the Trustee to exercise and enforce its rights and remedies
hereunder in respect of the Collateral; or (iii) otherwise effect the
purposes of the Indenture, including, without limitation: executing and
filing such supplements to the Indenture and such financing or continuation
statements (or amendments thereto) as may be necessary or desirable or that
the Trustee may reasonably request in order to perfect and preserve the
Liens created or purported to be created hereby or thereby.
(l) Other Agreements. The Standby Purchaser shall enter into the
-----------------
Standby Lease but shall not agree to any amendments or modifications of the
terms thereof without express written consent of the Trustee.
(m) Default under Other Agreements. The Standby Purchaser shall
---------------------------------
provide prompt written notice to the Trustee of any default under the
Standby Lease.
SECTION 5.04. The Standby Purchaser agrees that it will comply with its
obligations under clause 6.1 of the Standby Lease and, in this regard, it will
not take, nor be obliged to take, any action (i) which it knows to be contrary
to the covenants and other terms and provisions of the Indenture, the First
Preferred Ship Mortgage or any other Project Document or (ii) which it knows
will inhibit the performance of such covenants, terms and provisions by the
Issuer, Owner, Lessee or otherwise.
SECTION 5.05. The Standby Purchaser agrees that it will not, otherwise than
pursuant to its rights under the Standby Lease (and then subject to any
restrictions on the exercise of those rights under the Deed of Proceeds),
interfere with the quiet use, possession and quiet enjoyment of the Drilling Rig
by SDDI, the Issuer, the Lessee or any of its or their Affiliates.
SECTION 5.06. The Standby Purchaser represents and warrants that (a) as
of the date hereof, the execution, delivery, performance and enforcement of this
Second Supplemental Indenture or any of the documents referred to herein or in
the whereas clauses hereto will not: (i) subject the Trustee or any Note Holder
to any Tax imposed by the Cayman Islands or any taxing authority thereof or
therein; (ii) require that the Trustee or any Note Holder qualify, or otherwise
become subject to regulation, under any law, rule, regulation or decree of the
Cayman Islands or any governmental authority thereof or therein and (b) this
Second Supplemental Indenture and the other documents referred to herein and in
the whereas clauses hereto are in proper form for the enforcement thereof in the
Cayman Islands and that in order to enforce the same in the Cayman Islands it is
not necessary that any Tax be paid or registration or other formality complied
with.
SECTION 5.07. The Standby Purchaser agrees that it will not take title to
the Drilling Rig (including, without limitation, taking title pursuant to the
Put-Option Agreement or the Hire Purchase Agreement) unless the Standby
Purchaser complies with the relevant provisions under the Deed of Proceeds
including, without limitation, the provisions of clause 5.3 thereof.
SECTION 5.08. The Standby Purchaser represents and warrants that it is
not a Subsidiary or an Affiliate of the Parent, Issuer, Owner, Lessor, Lessor
Parent, Lessee or any Subsidiary or Affiliate of the foregoing (the "Principal
Parties") and will not become a Subsidiary or an Affiliate of any Principal
Party. The Standby Purchaser will act solely in its own corporate name and
through its
18
own offices and agents and at all times hold itself out to the public under its
own name as a legal entity separate and distinct from any and all of the
Principal Parties.
ARTICLE 6
---------
ADDITIONAL COVENANTS
--------------------
SECTION 6.01. Owner agrees to take appropriate action as soon as
practicable after December 31, 2000, but in no event later than February 28,
2001, at the sole cost and expense of the Issuer, as required to transfer all of
its right, title and interest in the Drilling Rig to a third party, which shall
be an Affiliate of the Owner ("Transferee"), which Transferee will enter into a
supplement to the Indenture pursuant to which the Transferee grants a security
interest similar to the security interest granted by the Independent Owner under
the Supplemental Indenture and covenants similar to the covenants granted by the
Independent Owner under the Supplemental Indenture together with a covenant
similar to Section 8.13 (except to the extent Section 8.13 relates to preserving
the form of the Transferee as a corporation, such covenant shall be broadened to
allow the Transferee to be a corporation, an owner trust, statutory trust or a
limited liability company) of the Indenture and otherwise being in form and
substance satisfactory to the Required Holders; provided that, in connection
with such transfer, (a) the Issuer shall assist the Owner in providing
additional documentation required in connection with such transfer and (b) such
transfer shall not be effected unless and until the Trustee is furnished with
the following, in form and substance satisfactory to the Trustee and the Rating
Agencies:
(i) an assumption of the First Preferred Ship Mortgage or the
execution and delivery of a new mortgage executed by the Transferee in
substantially the same form as the First Preferred Ship Mortgage,
(ii) an amendment to the Indenture pursuant to which the Transferee
grants to the Trustee a security interest in the Equipment on substantially
the same terms as the security interest granted by the Owner under the
Indenture together with appropriate financing statements to properly
perfect such security interest,
(iii) appropriate UCC searches establishing that the security interest
granted under (ii) above is first priority,
(iv) opinions of counsel from the Issuer and Transferee satisfactory to
the Trustee and the Rating Agencies with respect to the documents provided
under clauses (i) and (ii) above, including, without limitation, the first
priority of the assumption of the First Preferred Ship Mortgage or new
mortgage, as applicable, and
(v) a certificate or certificates from appropriate insurance brokers
that all required insurance remains in full force and effect with the
Transferee as the new owner of the Drilling Rig and Equipment.
19
In connection with the foregoing, the Owner shall not be required to
provide representations, opinions and certificates broader in scope or content
than those previously provided by the Owner pursuant to the Supplemental
Indenture and this Second Supplemental Indenture.
SECTION 6.02. The Trustee shall establish an account styled "R&B Falcon
Deepwater (UK) Limited Collection Account" (the "Lessee Collection Account")
subject to the Trustee's sole dominion and control into which (a) any payments
or proceeds paid or payable under the SDDI Contract will be directed according
to Section 6.03 hereof and the Indenture and (b) into which any proceeds (but
excluding, for the avoidance of doubt, proceeds of Lessee Excepted Properties)
directed to the Lessee pursuant to the Deed of Proceeds will be directed
according to such Deed of Proceeds.
SECTION 6.03. The Trustee shall apply and transfer immediately any
amounts in the Lessee Collection Account to the Collection Account to be applied
as required pursuant to Section 5.1 and Section 5.3 of the Indenture.
SECTION 6.04. Each Note Holder, by execution and delivery of their
written consent to this Second Supplemental Indenture and the Deed of Proceeds,
agrees to sell such Note Holder's Note pursuant to the buy-out provisions of
clause 10.2 of the Deed of Proceeds.
ARTICLE 7
---------
AMENDMENTS TO INDENTURE/SUPPLEMENTAL INDENTURE
----------------------------------------------
SECTION 7.01. (a) Section 1.1 of the Indenture is hereby amended by
adding the following new definitions where alphabetically appropriate, which
read in their entirety as follows:
Assumption Documents shall have the meaning ascribed thereto in the
---------------------
recitals to the Second Supplemental Indenture.
Counterparty Payment Agreement shall have the meaning ascribed thereto
------------------------------
in the recitals to the Second Supplemental Indenture.
Credit Agreement shall have the meaning ascribed thereto in the
-----------------
recitals to the Second Supplement Indenture.
Debenture shall have the meaning ascribed thereto in the recitals to
---------
the Second Supplemental Indenture.
Deposit Agreement shall have the meaning ascribed thereto in the
------------------
recitals to the Second Supplemental Indenture.
Hire Purchase Agreement shall have the meaning ascribed thereto in the
-----------------------
recitals to the Second Supplemental Indenture.
20
Lease shall have the meaning ascribed thereto in the recitals to the
-----
Second Supplemental Indenture.
Lease Implementation Documents shall mean this Second Supplemental
--------------------------------
Indenture and each of the other documents listed on Schedule 1 hereto.
Lessee shall mean R&B Falcon Deepwater (UK) Limited, a company
------
incorporated in England and Wales.
Lessee Account shall mean the Lessee Account defined in the Lessee
---------------
Account Assignment dated June 2, 2000 from the Lessee to the Lessor
pursuant to which the Lessee may deposit Lessee Excepted Properties.
Lessee Collection Account shall have the meaning ascribed thereto in
---------------------------
Section 6.02 of the Second Supplemental Indenture.
Lessee Documents shall mean the Lease and the Standby Lease.
-----------------
Lessee Excepted Properties shall mean all of the Lessee's right, title
--------------------------
and interest in, to and under the following Properties whether now owned,
existing or hereafter acquired or arising:
(i) all monies received by the Lessee pursuant to Section 5.1
seventh and Section 5.3 eighth of the Indenture which are deposited or
------- ------
placed in the Lessee Account or otherwise used for securing the
obligations of the Lessee to the Lessor pursuant to clause 25 of the
Lease; and
(ii) all monies deposited in the Lessee Account, or any sub or
replacement account, pursuant to payments made by Commerzbank AG under
the Assumption Documents.
Lessee Related Taxes shall mean those Taxes which would not otherwise
---------------------
have arisen but for the implementation of the lease arrangements, imposed
as a direct or indirect consequence of the Lessee being involved as a party
to the Project Documents or the transactions contemplated thereby or being
a party to the Lease Implementation Documents or as a result of the Lessee
or any other person having to make or receive a payment through or in
connection with the Lease Implementation Documents.
Lessor shall have the meaning ascribed thereto in the recitals to the
------
Second Supplemental Indenture.
Lessor Parent shall mean Alliance & Leicester plc.
--------------
Liquidity Costs shall mean, collectively, the amount of any Unpaid
----------------
Drawings, and
21
unpaid interest, costs, expenses, liabilities or other amounts due to the
Liquidity Provider (Swiss Re) under the Credit Agreement.
Liquidity Provider (Swiss Re) shall have the meaning ascribed thereto
------------------------------
in the recitals to the Second Supplemental Indenture.
Owner Bankruptcy Event shall have the meaning ascribed thereto in the
-----------------------
Credit Agreement.
Put-Option Agreement shall have the meaning ascribed thereto in the
---------------------
Second Supplemental Indenture.
RBF Parties means each of the Lessee, Issuer, RBF II and the Parent.
------------
Reimbursement Agreement shall have the meaning ascribed thereto in the
-----------------------
recitals to the Second Supplemental Indenture.
Risk Transfer Agreement shall have the meaning ascribed thereto in
-------------------------
Section 10.07 of the Second Supplemental Indenture.
Second Priority Assignment shall mean the assignments from the Issuer
---------------------------
and the Lessee in favor of the Lessor in the form of Exhibits H and I
hereto.
Second Supplemental Indenture shall mean that certain Second
-------------------------------
Supplemental Indenture and Amendment dated as of June 2, 2000, executed by
the Issuer, the Owner, the Standby Purchaser, the Lessee and the Trustee.
Standby Lease shall have the meaning ascribed thereto in the recitals
--------------
to the Second Supplemental Indenture.
Standby Purchaser shall mean Nautilus Exploration Limited, a company
------------------
incorporated in the Cayman Islands.
Standby Purchaser Documents shall mean the Standby Lease.
-----------------------------
Standby Purchaser Excepted Properties shall mean the share capital of
--------------------------------------
the Standby Purchaser.
Tax shall have the meaning ascribed thereto in the Operation and
---
Maintenance Agreement.
Transfer Agreement shall have the meaning ascribed thereto in the
-------------------
recitals to the Second Supplemental Indenture.
Unpaid Drawings shall have the meaning ascribed thereto in the Credit
----------------
Agreement.
22
(b) The definition of "Credit Support Party" shall be deemed to
include the Liquidity Provider (Swiss Re) (as defined in the recitals to
the Second Supplemental Indenture).
(c) The definition of "First Preferred Ship Mortgage" shall be deemed
to include the Amendment to First Mortgage (as defined in the recitals to
the Second Supplemental Indenture).
(d) The definition of "Operation and Maintenance Agreement" is amended
by the addition at the end of such definition of the words "as terminated
and replaced by that certain new Operation and Maintenance Agreement dated
June 2, 2000 and as the same may be further amended, supplemented or
modified from time to time."
(e) The definition of "Project Document" is amended by adding the
phrase "each of the Lease Implementation Documents" after the phrase "(as
defined in the Note Purchase Agreement),".
(f) The definition of "SDDI Contract" shall be deemed to include the
SDDI Contract as transferred and amended by the Transfer Agreement.
(g) The definition of Transaction Documents is amended by including in
the definition thereof, each of the Lease Implementation Documents.
Section 7.02. Clauses (b), (j), (n) and (q) of Section 7.1 of the
Indenture are hereby amended respectively to hereafter read in their entirety as
follows:
"(b) any representation, warranty or certification at any time made or
deemed made herein or in any other Project Document by the Issuer, Parent,
Owner, Lessee, Standby Purchaser or Lessor, or any certificate furnished to
any Purchaser or other holder of any Note or the Trustee pursuant to the
provisions hereof or any other Project Document, shall prove to have been
false or misleading as of the time made or furnished in any material
respect; or"
"(j) Parent, SDDI, Royal Dutch Shell, RBF II, Owner (but only with
respect to (d), (e) or (f)), Sovereign, Lessor Parent, the Standby
Purchaser (at any time that Sovereign or the Standby Purchaser is a party
to the Hire Purchase Agreement or has title to the Drilling Rig) or the
Lessee or, prior to satisfaction of the Operational Period Conditions
Precedent, one of the Sureties, takes, suffers or permits to exist with
respect to itself any of the events or conditions of the type referred to
in paragraphs (d), (e), (f) or (i) hereof; or"
"(n) the Issuer or the Lessee shall cease to be a 100% owned
Subsidiary of the Parent, directly or indirectly; or"
"(q) Any default occurs in the covenants or obligations of the (i)
Owner under the Supplemental Indenture, the Second Supplemental Indenture,
the First Preferred Ship
23
Mortgage or the Deed of Proceeds or (ii) Standby Purchaser or the Lessee
under the Second Supplemental Indenture, the Deed of Proceeds or, with
respect to the Standby Purchaser, any other Standby Purchaser Document or,
with respect to the Lessee, any other Lessee Document (iii) Lessor under
the Deed of Proceeds or (iv) the Trustee receives a notice from the Owner
pursuant to the second sentence of Section 4.02(a)(E) of the Supplemental
Indenture; and, for the avoidance of doubt, the occurrence and continuation
of a Termination Event under the Lease shall not of itself constitute an
Indenture Event of Default unless the event or condition giving rise to the
Termination Event is also stated to be a default under this Indenture or
such Termination Event creates an Indenture Event of Default under the
Indenture."
SECTION 7.04. Section 13.3 of the Indenture is amended by adding the
following notice provision following the mail address of the Owner:
If to the Standby Purchaser:
If by mail:
Nautilus Exploration Limited
Xxxxxx House
X.X. Xxx 000
Xxxxxx Xxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Facsimile: 001 345 949 8080
Attention: Xxxxxx Xxxxxxxx
With a copy to:
XXXX Xxxxx
XX Xxx 0000 XX
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Facsimile: 001 345 949 7634
Attention: The Directors
If to the Lessee:
If by mail:
R&B Falcon Deepwater (UK) Limited
c/o R&B Falcon Corporation
000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 X.X.X.
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
With copy to:
24
R&B Falcon Deepwater (UK) Limited
Stoneywood Office Complex, Suite E
Stoneywood Park North
Dyce
Xxxxxxxx XX00 0XX
Xxxxxxxx
Facsimile No.: 011-44-1224-723-444
Attention: Xxxx Xxxxxxx, Director
SECTION 7.05. Section 4.3 of the Indenture is hereby amended by
inserting immediately after the phrase "and all payments under the Performance
Bond" the phrase ", any excess amount in the Payment Reserve Account that is
transferred to the Collection Account in accordance with Section 5.4 hereof".
SECTION 7.06. Article 4 of the Indenture is hereby amended by inserting
the following new Section 4.4:
4.4 Liquidity Shortfall Account
-----------------------------
The Trustee shall establish an account styled "Note Holder Liquidity
Shortfall Account" (the "Liquidity Shortfall Account") subject to the
-----------------------------
Trustee's sole dominion and control. During the continuance of an Owner
Bankruptcy Event, (a) at least three (3) Business Days prior to each
Payment Date, the Trustee shall determine the amount ("Liquidity
---------
Shortfall"), if any, by which (i) the amount of interest due on such
---------
Payment Date for all of the Notes ("Interest Amount") exceeds (ii) the
---------------
amount of funds available in both the Collection Account and the Payment
Reserve Account to cover such Interest Amount and (b), if there is a
Liquidity Shortfall, the Trustee shall (1) give notice to the Issuer and
each Note Holder of the necessity to request a Drawing (as such term is
defined in the Credit Agreement) under the Credit Agreement to cover the
Liquidity Shortfall and (2), upon evidence satisfactory to the Trustee of
each of the certifications required under the Notice of Drawing (as such
term is defined in the Credit Agreement), promptly deliver to the Liquidity
Provider (Swiss Re) on behalf of the Note Holders a completed Notice of
Drawing requesting the lesser of the (x) Liquidity Shortfall and (y) the
Available Commitment (as such term is defined in the Credit Agreement). The
Trustee shall deposit into the Liquidity Shortfall Account any funds
received from the Liquidity Provider (Swiss Re) pursuant to any Drawing
and, promptly thereafter, the Trustee shall transfer from the Liquidity
Shortfall Account to each respective Note Holder, such Note Holder's pro
rata share of the Drawing based upon that portion of the Interest Amount
allocable to such Note Holder.
25
SECTION 7.07. Section 5.1(a) second is hereby amended by inserting
------
immediately prior to the phrase "the accrued unpaid interest" the phrase "in the
following order of priority, first to the amount required to reimburse any
Liquidity Costs to the Liquidity Provider (Swiss Re) and second,"
SECTION 7.08. Section 5.3 second is hereby amended by inserting
------
immediately prior to the phrase "so much of such monies" the phrase "in the
following order of priority, first to the amount required to reimburse any
Liquidity Costs to the Liquidity Provider (Swiss Re) and second,"
SECTION 7.09. Section 5.1(a) seventh and Section 5.3 eighth of the
------- ------
Indenture are each hereby amended by replacing the phrase "distributed to the
Issuer or its assigns." with "distributed to the Lessee, or as the Lessee shall
otherwise direct the Trustee in writing, or to the Lessee's assigns, for use in
their absolute discretion."
SECTION 7.10. Section 5.4 of the Indenture is hereby amended by
inserting immediately after the phrase "shall be charged against the principal
amount invested" the phrase
; except that, if there is income realized as a result of any such
Permitted Investments of amounts held in the Payment Reserve Account
and such income causes the amount in the Payment Reserve Account to
exceed the Phase Two Reserve Amount (as determined by the Trustee
three (3) Business Days prior to any given Payment Date), then the
Trustee shall cause such excess amount to be transferred to the
Collection Account
SECTION 7.11. Article 8 of the Indenture is hereby amended by adding
the following new Section 8.16:
"8.16 Tax Indemnity. If at any time any applicable law, regulation or
--------------
regulatory requirement or any governmental authority, monetary agency or central
bank requires any deduction or withholding in respect of Taxes from any payment
due hereunder or under any of the other Project Documents the Issuer shall:
(a) if the payment is to be made by the Issuer, increase the payment
in respect of which the deduction or withholding is required to the extent
necessary to ensure that, after the making of such deduction or
withholding, the payee receives on the due date for such payment a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made;
(b) if the payment is to be made by any person other than the Issuer,
pay directly to the payee such sum as will, after taking into account any
deduction or withholding which is required to be made in respect of such
sum, enable the payee to receive on the due date for payment a net sum
equal to the sum which the payee would have received in the absence of any
obligation to make a deduction or withholding;
(c) pay to the relevant authority within the period for payment
permitted by applicable law the full amount of the deduction or withholding
(including, but without
26
prejudice to the generality of the foregoing, the full amount of any
deduction or withholding from any increased amount paid pursuant to this
Section 8.16); and
(d) furnish to the payee within the period for payment permitted by
applicable law, appropriate receipts evidencing payment to the relevant
authority of all amounts deducted or withheld as aforesaid."
SECTION 7.12. Section 9.2 of the Indenture is amended by changing
subsection (b) to subsection (c) and inserting a new subsection (b) as follows:
(b) the Second Preferred Ship Mortgage, the charge against the Deposit
pursuant to clause 3 of the Deposit Agreement and the Second Priority
Assignments; and
SECTION 7.13. Section 13.17(b) of the Indenture is hereby amended by
inserting the following phrase "the Liquidity Provider (Swiss Re)," immediately
after the first occurrence of "Note Holder,"
SECTION 7.14. The first paragraph of the Granting Clause of the
Indenture is hereby amended by inserting immediately after the first occurrence
of the phrase "under all other Project Documents" the phrase "(including,
without limitation, the obligations of the Trustee under Section 2.05 of the
Credit Agreement)". Section (b) of the Granting Clause of the Indenture is
hereby amended by replacing "Refundment Guarantee" with "Refundment Guarantee,
Risk Transfer Agreement, the Assumption Documents".
SECTION 7.15. Section 3.01 of the Supplemental Indenture is hereby
amended by inserting immediately after the first occurrence of the phrase "under
all other Project Documents" the phrase "(including, without limitation, the
obligations of the Trustee under Section 2.05 of the Credit Agreement)".
SECTION 7.16. Section 3.01(b) of the Supplemental Indenture is hereby
amended by replacing the phrase "such indemnity and the New Performance
Guarantee" with "such indemnity, the New Performance Guarantee and Article VII
of the Operation and Maintenance Agreement".
ARTICLE 8
CONDITIONS TO EFFECTIVENESS
---------------------------
SECTION 8.01. This Second Supplemental Indenture shall become effective
upon the date (the "Effective Date") that is the latter of (a) the date of its
execution and delivery by each of the Issuer, the Owner, the Standby Purchaser,
the Lessee and the Trustee and (b) the date that each of the following
conditions (with each document referenced being in form and substance
satisfactory to the Trustee) have been completed:
(a) each of the Lease Implementation Documents have been executed and
delivered by all parties thereto and are effective pursuant to the terms
thereof;
27
(b) the Commencement Date has occurred;
(c) the representations and warranties set out in Section 4.08 hereof
are true and correct in all material respects;
(d) each of the RBF Parties, the Owner, the Lessee and the Standby
Purchaser shall have performed and complied with and shall continue to be
in compliance with all of the Project Documents to which each is a party;
(g) all necessary or appropriate financing statements and other filing
and recording documents necessary to properly perfect the liens and
security interests evidenced by the Indenture and each of the other Lease
Implementation Documents which grants a lien, security interest or
assignment in favor of the Trustee shall have been executed and delivered
to the Trustee;
(h) opinions of counsel from each of Gardere Xxxxx Xxxxxx & Xxxxx,
L.L.P., Xxxxxx Xxxxxx & Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxx, LLP, Xxxxxx
& Calder Europe and Xxxxx Xxxxxxxxxx LLP shall have been delivered to the
Note Holders, the Liquidity Provider (Swiss Re) and the Trustee; and
(i) the Issuer shall have paid the reasonable fees, charges and
disbursements of special counsel to each of the Class A1 Note Holders, the
Class A2 Note Holders, Credit Support Parties (including, without
limitation, counsel to the Liquidity Provider (Swiss Re)), the Trustee, the
Proceeds Account Bank and of special United Kingdom Counsel to all of the
Class A1 Note Holders, the Class A2 Note Holders and Credit Support
Parties; provided that such fees are reflected in a statement of each such
counsel rendered to the Issuer at least one Business Day prior to the date
hereof.
ARTICLE 9
CERTAIN ADDITIONAL AGREEMENTS
-----------------------------
SECTION 9.01. Nothing in Article 4 or 5 or elsewhere in this Second
Supplemental Indenture or any of the other Lease Implementation Documents shall
relieve the Issuer from any of the covenants and obligations of the Issuer under
and pursuant to the Indenture as amended and supplemented hereby and
notwithstanding the ownership of the Drilling Rig by the Owner, Sovereign, the
Standby Purchaser or any other Party, Sovereign's Lease to the Lessee, the
Put-Option Agreement or the Standby Lease, the Issuer remains fully responsible
and liable (including, without limitation, as if it was the owner of the
Drilling Rig) for the performance and compliance with all covenants and
obligations of the Issuer under the Indenture as amended and supplemented hereby
and the First Preferred Ship Mortgage. Further, the Issuer hereby covenants and
agrees to perform, or cause to be performed, all of the obligations of the
Owner, the Lessee and the Standby Purchaser under the Indenture as supplemented
and amended hereby, the First Preferred Ship Mortgage and under all other
Transaction Documents or Project Documents. Notwithstanding the foregoing, with
28
respect to Section 6.01 of the Supplemental Indenture there shall be no Assuming
Party with respect to the Hire Purchase Agreement. Accordingly, the Issuer
shall be the Assuming Party with respect to all Project Documents to which the
Owner is a party, except for the Hire Purchase Agreement and the Sale and
Funding Agreement, and the term Assumed Obligations shall be construed
accordingly.
SECTION 9.02. For all purposes of the Indenture, the Owner shall not
be responsible for any act or omission of the Lessor or the Lessee under or in
connection with the Lease, as the same relates to the Drilling Rig or otherwise;
provided that, such limitation shall not limit the Owner's responsibilities
under the Indenture and under the Project Documents to which the Owner is a
party and the Indenture taken as a whole.
SECTION 9.03. The Trustee agrees that upon a transfer of title to the
Drilling Rig from the Owner to a third party in compliance with the terms and
conditions of the Indenture the Trustee (at the expense of the Issuer and
Lessee) shall promptly execute and deliver to the Owner such instruments as may
be sufficient to release and discharge the Owner from its obligations created
under the First Preferred Ship Mortgage, the Supplemental Indenture or the
Second Supplemental Indenture; provided, however, that during such period, if
any, as the First Preferred Ship Mortgage and the liens created by the
Supplemental Indenture and/or the Second Supplemental Indenture continue in
effect but have not been assumed by the Transferee, such pledge, liens and
assignment, the lien of the First Preferred Ship Mortgage and the Owner's
non-recourse obligation under Section 4.05 of the Supplemental Indenture (but no
other obligation, covenant or undertaking of the Owner contained in the
Supplemental Indenture or the First Preferred Ship Mortgage) shall continue in
effect.
SECTION 9.04. The Trustee agrees that any right, title or interest of
the Trustee in and to any Deposit (as such term is defined in the Deposit
Agreement) made by or on behalf of the Issuer pursuant to the terms of the
Deposit Agreement (a) shall be second, subordinate and inferior to any right,
title or interest of Commerzbank AG to such Deposit, unless any portion of any
such Deposit is derived from or pursuant to that portion of the Trust Estate
which the Issuer is not entitled to receive pursuant to Article 5 of the
Indenture, in which case the right, title or interest of the Trustee in and to
such portion of the Deposit so derived shall not be subject to this Section 9.04
and (b), with respect to any such Deposit, the Issuer shall have absolute
discretion in its use of such Deposit.
SECTION 9.05. Except as provided in Section 11.1 of the Indenture and
in accordance with Section 6.01(b) of the Credit Agreement, the Trustee shall
neither amend, modify or supplement any Project Document to which the Trustee is
a party nor consent to the amendment, modification or supplementation of any
other Project Document without the express written consent of the Liquidity
Provider (Swiss Re).
SECTION 9.06. The Issuer or the Lessee, as appropriate, shall name or
cause to be named the Liquidity Provider (Swiss Re) as an additional insured
under all liability insurance policies maintained pursuant to the provisions of
the Project Documents.
SECTION 9.07. The Lessee agrees that it will terminate the Lease
(pursuant to clause 3.3(a) thereof) if Alliance & Leicester Group Treasury plc
is not replaced in its capacity as Proceeds
29
Account Bank by July 14, 2000 in accordance with the provisions of the Deed of
Proceeds.
ARTICLE 10
MISCELLANEOUS PROVISIONS
------------------------
SECTION 10.01. Except as expressly amended and supplemented hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This
Second Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Note Holder heretofore or hereafter authenticated and
delivered under the Indenture shall be bound hereby and all terms and conditions
of the Indenture as amended by the Supplemental Indenture and by this Second
Supplemental Indenture shall be read together as though they constitute a single
instrument.
SECTION 10.02. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Second Supplemental Indenture. This
Second Supplemental Indenture is executed and accepted by the Trustee subject to
all the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
SECTION 10.03. THE GOVERNING LAW AND SUBMISSION TO JURISDICTION PROVISIONS
OF THE INDENTURE, INCLUDING BUT NOT LIMITED TO THE APPLICATION OF THE LAWS OF
THE STATE OF NEW YORK, SHALL ALSO GOVERN AND BE USED TO CONSTRUE AND ENFORCE
THIS SECOND SUPPLEMENTAL INDENTURE. For this purpose the term "Issuer" in
Sections 13.4(b), 13.4(d) and 13.4(e) of the Indenture shall be deemed to
include the Owner, the Standby Purchaser and the Lessee.
SECTION 10.04. THE LESSEE HEREBY IRREVOCABLY DESIGNATES CAPITOL SERVICES,
INC. LOCATED AT 000 XXXXXX XXXXXX, XXXXX 000, XXXXXX, XXX XXXX 00000 AS THE
DESIGNEE, APPOINTEE AND AGENT OF THE LESSEE TO RECEIVE, FOR AND ON BEHALF OF THE
LESSEE, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THE PROJECT DOCUMENTS. IT IS UNDERSTOOD THAT A COPY
OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY OVERNIGHT
COURIER TO THE LESSEE AT ITS ADDRESS SET FORTH IN SECTION 7.04 HEREOF, BUT THE
FAILURE OF THE LESSEE TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS. THE LESSEE 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 THE LESSEE AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE
THIRTY DAYS AFTER SUCH MAILING.
30
SECTION 10.05. The Issuer and the Owner recognize and acknowledge that the
Put Option is terminated.
SECTION 10.06. The Issuer represents, warrants and reaffirms that each of
the representations and warranties contained in Article 5 of the Note Purchase
Agreements were correct in all material respects as of the date such
representations and warranties were made and are correct in all material
respects as of the date hereof.
SECTION 10.07. With respect to that certain Risk Transfer Agreement
between the Issuer and the Lessee dated June 2, 2000 ("Risk Transfer
Agreement"), the Issuer and the Lessee understand and agree that the payments
under clauses 2.2 and 2.3 thereunder of the Lease Payments (as defined in the
Risk Transfer Agreement) and the Lease Receivables (as defined in the Risk
Transfer Agreement) are subject to the prior security interests, liens,
assignments and rights of the Trustee to the revenues from the SDDI Contract and
to all other assets of the Lessee as provided under the Indenture, under that
certain new Assignment of Drilling Contract to be granted from the Lessee to the
Trustee in the form of Exhibit J ("New Assignment of Drilling Contract") and
under the Debenture.
SECTION 10.08. All rights of the Trustee and security interests hereunder,
and all obligations of each of the Lessee and the Standby Purchaser hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Project Documents
or any other agreement or instrument relating thereto (other than against the
Trustee);
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the obligations under the Project Documents, or any other
amendment or waiver of or any consent to any departure from the Project
Documents or any other agreement or instrument relating thereto;
(c) any exchange, release or non-perfection of any collateral, or any
release of any party liable on the Project Indebtedness, or amendment or waiver
of or consent to any departure from any guaranty for all or any of the
obligations under the Project Documents;
(d) any change in the number or identity of the Lessee, the Issuer, the
Owner or the Standby Purchaser; or
(e) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Lessee or the Standby Purchaser.
SECTION 10.09. The Parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
31
[NEXT PAGE IS SIGNATURE PAGE]
32
IN WITNESS WHEREOF, the Parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the Effective Date.
ATTEST: /s/ F. STEEL RBF EXPLORATION CO.
By /s/ X. XXXXX
------------------------------------
Name: F. Steel Name: X. Xxxxx
--------------------------------- ---------------------------------
Title: Solicitor Title: Officer
-------------------------------- ---------------------------------
ATTEST: /s/ XXXXXXX X. XXXXXX BTM CAPITAL CORPORATION
By /s/ XXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Title: Vice President Title: Senior Vice President
-------------------------------- ---------------------------------
ATTEST: /s/ X.X. XXXXXXX NAUTILUS EXPLORATION LIMITED
By /s/ XXXX XXXXXXX XXXX
------------------------------------
Name: X.X. Xxxxxxx Name: Xxxx Xxxxxxx Xxxx
--------------------------------- ---------------------------------
Title: Solicitor Title: Attorney in Fact
ATTEST: /s/ F. STEEL R&B FALCON DEEPWATER (UK) LIMITED
By /s/ X. XXXXXXX
------------------------------------
Name: F. Steel Name: X. Xxxxxxx
--------------------------------- ---------------------------------
Title: Solicitor Title: Director
ATTEST: /s/ XXXX X. XXXXXXXXXXX CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxxxx Name: Xxxxx X. Xxxxx
--------------------------------- ---------------------------------
Title: Attorney Title: Vice President and Trust Officer
33
SCHEDULE 1
1. Hire Purchase Agreement
2. Lease
3. Deed of Proceeds
4. Second Preferred Ship Mortgage
5. Subordination Agreement (Lessor)
6. Subordination Agreement (Commerzbank AG)
7. Put-Option Agreement
8. Standby Lease
9. Transfer Agreement
10. SDDI Estoppel Letter
11. Letter of Support from the Lessor Parent
12. Amendment to First Mortgage
13. Operation and Maintenance Agreement
14. Security Agreement Pledge from the Issuer to the Lessor in a form
approved by the Trustee
15. Security Agreement Pledge from the Lessee to the Lessor in a form
approved by the Trustee
16. Lessor Assignment (as defined in the Deed of Proceeds)
17. New Assignment of Drilling Contract
18. Risk Transfer Agreement
19. Credit Agreement
20. Debenture
22. Deposit Agreement
22. Reimbursement Agreement
23. Counterparty Payment Agreement
24. Standby Assignment of Insurances from the Standby Purchaser to the
Lessor in a form approved by the Trustee
25. Disbursement Agreement from the Lessee to the Standby Purchaser in a
form approved by the Trustee
26. Escrow Agreement between the Issuer and Commerzbank AG in a form
approved by the Trustee
27. Lessee Account Assignment between the Lessee and the Lessor in a form
approved by the Trustee
1
EXHIBITS A-J
[to come]
1
