EXHIBIT 10.324
PERFORMANCE GUARANTEE
THIS PERFORMANCE GUARANTEE (this "Guarantee"), dated as of February 1,
2000 is made by R&B FALCON CORPORATION, a Delaware corporation (the
"Guarantor") in favor of RBF EXPLORATION CO., a Nevada corporation ("RBF"),
BTM CAPITAL CORPORATION, a Delaware corporation (the "Owner"), TRAVELERS
CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut corporation, and
AMERICAN HOME ASSURANCE COMPANY, a New York corporation (both collectively,
the "Sureties"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee (together with its successors and
assigns, the "Trustee") under that certain Trust Indenture dated as of
August 12, 1999 by and between the Trustee and RBF, as amended and
supplemented by that certain Supplemental Indenture and Amendment of even
date herewith by and among the Trustee, the Owner and RBF (as hereafter
supplemented or amended, the "Indenture").
WHEREAS, RBF issued USD 250,000,000 of Senior Secured Notes (the
"Notes") pursuant to the Indenture to finance the construction, outfitting
and mobilization of the semi-submersible drilling rig to be named DEEPWATER
NAUTILUS (the "Drilling Rig");
WHEREAS, RBF has transferred the Drilling Rig to the Owner;
WHEREAS, pursuant to the Construction Supervisory Agreement dated the
date hereof (the "Construction Supervisory Agreement") the Owner has
engaged RBF Exploration II Inc., a Nevada corporation, (the "Supervisor")
to manage and supervise the design, construction and outfitting of the
Drilling Rig at the yard of the Builders and its mobilization as required
by the SDDI Contract;
WHEREAS, both RBF and the Supervisor are each a wholly-owned indirect
subsidiary of the Guarantor and it is to the corporate benefit of the
Guarantor that the Owner acquires the Drilling Rig and that the Supervisor
manage the design, construction, outfitting and mobilization of the
Drilling Rig; and
WHEREAS, pursuant to the Indenture, both RBF and the Owner have
granted to the Trustee a security interest in, among other things, certain
rights in the Construction Supervisory Agreement.
NOW, THEREFORE, in consideration of the premises, the Guarantor hereby
agrees as follows:
SECTION 1. Guarantee.
The Guarantor hereby unconditionally and irrevocably guarantees the
full performance and observance by the Supervisor of all of the terms of
the Construction Supervisory Agreement (other than the payment obligations
of the Supervisor set out in Article IV of such agreement). All of the
obligations of the Supervisor under the Construction Supervisory Agreement
guaranteed by the Guarantor pursuant to this Guarantee are referred to
herein as the "Obligations." If the Supervisor fails to perform and
observe any term or condition of the Construction Supervisory Agreement,
other than those contained in Article IV, the Guarantor undertakes to
itself perform or cause to be performed, within ten (10) days after receipt
of notice to such effect from RBF, the Owner, the Sureties or the Trustee,
any such term or condition not so performed or observed by the Supervisor,
and to indemnify and hold RBF, the Owner, the Sureties and the Trustee
harmless from and against any loss, costs, damage, claim or expenses, other
than those contained in Article IV, which may be incurred by or asserted
against them in connection with any failure on the part of the Supervisor
to perform or observe any term or condition of the Construction Supervisory
Agreement.
SECTION 2. Guarantee Absolute.
(a) The Guarantor hereby guarantees that the Obligations will be
performed or paid strictly in accordance with the terms of the
Construction Supervisory Agreement, regardless of any law,
regulation or order now or hereafter in effect in any
jurisdiction affecting any such terms or the rights of RBF, the
Owner, the Sureties or the Trustee with respect thereto. The
liability of the Guarantor under this Guarantee shall be absolute
and unconditional irrespective of:
(i) any lack of validity or enforceability of the Construction
Supervisory Agreement, the Construction Contract or any
other agreement or instrument entered into between RBF, the
Owner, the Trustee, the Builders, the Sureties and/or the
Guarantor;
(ii) any change in the time, manner or place of performance or
payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any
consent to departure from the Construction Supervisory
Agreement or the Construction Contract;
(iii) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Supervisor in
respect of the Obligations or the Guarantor in respect of this
Guarantee.
(b) This Guarantee shall continue to be effective or be reinstated,
as the case may be, if at any time any performance or payment of
any of the Obligations is rescinded or must otherwise be returned
by RBF, the Owner, the Sureties or the Trustee upon the
insolvency, bankruptcy or reorganization of RBF or the Owner or
otherwise, all as though such payment had not been made.
SECTION 3. Waiver.
The Guarantor hereby waives (a) notice of acceptance hereof, protest,
demand and dishonor, presentment and demand of any kind now or hereafter,
provided by any statute or rule of law, (b) promptness, diligence, notice
of acceptance and any other notice with respect to any of the Obligations
and this Guarantee and any requirement that RBF, the Owner, the Sureties or
the Trustee or any other person exhaust any right or take any action
against the Supervisor or any other person or entity or any collateral, (c)
all set offs and counterclaims it may have against RBF, the Owner, the
Sureties, the Trustee or any other person and (d) any defense arising by
any insolvency, lack of authority, power, dissolution or any other defense
of the Supervisor or the Guarantor.
SECTION 4. Subrogation.
The Guarantor will not exercise any rights which it may acquire by way
of subrogation under this Guarantee, by any payment made hereunder or
otherwise, until all the Obligations and all other obligations of the
Supervisor under the Construction Supervisory Agreement shall have been
performed or paid in full. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all the Obligations
shall not have been performed or paid in full, such amount shall be
forthwith paid to the Trustee for the account of RBF and the Owner to be
credited and applied against the Obligations.
SECTION 5. Payments Free and Clear of Taxes, Etc.
(a) All sums payable by the Guarantor under this Guarantee, shall be
paid in full without set-off or counterclaim and in such amounts
as may be necessary in order that all such payments (after
deduction or withholding for or on account of any present or
future taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any Governmental Entity or taxing
authority thereof, other than any income tax or franchise tax or
other tax or fee on or measured by the gross receipts or net
income of RBF, the Owner, the Trustee, the Sureties or the Note
Holders collectively the "Taxes") shall not be less than the
amounts otherwise specified to be paid under this Guarantee.
(b) A certificate as to any additional amounts payable to RBF, the
Owner or the Trustee under this Section 5 submitted to the
Guarantor by the Trustee shall show in reasonable detail the
amount payable and the calculations used to determine in good
faith such amount and shall be deemed prima facie correct.
(c) With respect to each deduction or withholding for or on account
of any Taxes, the Guarantor shall promptly furnish to the Owner
and the Trustee such certificates, receipts and other documents
as may be required (in the reasonable judgment of the Trustee) to
establish any income tax credit to which the Trustee may be
entitled.
SECTION 6. APPLICABLE LAW AND JURISDICTION.
THIS GUARANTEE (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN CONFLICT OF LAWS RULES
THEREOF. ANY LEGAL ACTION OR PROCEEDING AGAINST THE GUARANTOR WITH RESPECT
TO THIS GUARANTEE MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK,
SITTING IN NEW YORK COUNTY, THE U.S. DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, OR IN THE COURTS OF ANY OTHER JURISDICTION WHERE SUCH
ACTION OR PROCEEDING MAY BE PROPERLY BROUGHT.
SECTION 7. Representations and Warranties.
The Guarantor hereby represents and warrants to RBF, the Owner, the
Sureties and the Trustee as follows:
(a) It is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware
duly qualified as a foreign corporation to do business
wherever its business or ownership of property requires it
to be so qualified and has the corporate power and authority
and the legal right to own and lease its property and to
conduct its business.
(b) The execution, delivery and performance by the Guarantor of
this Guarantee and any other documents contemplated herein
and the completion of all other transactions herein
contemplated are within the Guarantor's authority, are in
furtherance of the Guarantor's purposes, have been duly
authorized by all necessary action and will not contravene
any applicable law or regulation nor violate the Guarantor's
Articles of Incorporation or By-Laws nor any agreement
binding on the Guarantor nor any applicable law or
regulation or order or decree of any governmental authority
or agency.
(c) This Guarantee is supported by adequate and sufficient
consideration, has been validly executed by or on behalf of the
Guarantor and represents the valid and binding obligation of the
Guarantor, enforceable in accordance with its terms and will not
result in the Guarantor's liabilities (including the maximum
amount of liabilities that may be reasonably expected to result
from all contingent liabilities and giving effect to rights of
contribution and subrogation) exceeding the fair market value of
its assets. The enforceability of this Guarantee, however, is
subject to all applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the rights of creditors
generally and to general equity principles.
(d) The legality, validity, enforceability or admissibility of
this Guarantee are not subject to or conditional upon this
Guarantee being filed, recorded or enrolled with any
governmental authority or agency or stamped with any stamp,
duty or similar transaction tax of the State of Texas, the
State of New York or the United States of America.
(e) There are no pending, or to the best of the Guarantor's
knowledge, any threatened actions or proceedings affecting
the Guarantor before any court, governmental agency or
arbitrator in any country, which may materially adversely
affect the financial condition or operations of the
Guarantor.
SECTION 8. The Construction Supervisory Agreement.
The Guarantor hereby acknowledges receipt of the Construction
Supervisory Agreement and hereby consents and agrees to the Construction
Supervisory Agreement and to all the terms and provisions thereof.
SECTION 9. Amendments, Etc.
No amendment or waiver of any provision of this Guarantee nor consent
to any departure by the Guarantor therefrom shall in any event be effective
unless the same shall be in writing and signed by the Trustee and, so long
as the Performance Bond (as defined in the Indenture) is outstanding or
amounts are due to the Sureties as a result of payments made by them
thereunder, the Sureties and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 10. Notices.
All notices, requests and demands shall be in writing (including
telecopier transmission) given to or made upon the respective parties
hereto as follows:
In the case of the Guarantor at:
R&B Falcon Corporation
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
In the case of the Owner at:
BTM Capital Corporation
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Senior Vice President ? Administration
Telecopier: (000) 000-0000
In the case of RBF at:
RBF Exploration Co.
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: President
Telecopier:(000) 000-0000
In the case of the Trustee, at:
Chase Bank of Texas, National Association
1150 Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
In the case of the Sureties, at:
Travelers Casualty and Surety Company of America
Xxx Xxxxx Xxxxxx, 0XX
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Bond Claim
Telecopier: 000-000-0000
American Home Assurance Company
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Bond Claims
Telecopier: 000-000-0000
or to such other address as any party hereto shall designate by written
notice to the other parties hereto. All notices shall be effective upon
delivery or three (3) days after being deposited in the United States mail
with postage prepaid certified, return receipt requested in a correctly
addressed wrapper, or upon receipt if delivered to Federal Express or
similar courier company or transmitted by telefax during normal business
hours.
SECTION 11. No Waiver; Remedies.
No failure on the part of RBF, the Owner, the Sureties or the Trustee
to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 12. Continuing Guarantee.
This Guarantee is a continuing guarantee and shall (i) remain in full
force and effect until performance or payment in full of the Obligations
and payment in full of all other amounts due under this Guarantee, (ii) be
binding upon the Guarantor, its successors or assigns, as the case may be,
(iii) inure to the benefit of and be enforceable by RBF, the Owner, the
Sureties and the Trustee and their respective successors, transferees and
assigns, provided, however, that the Guarantor may not transfer its
obligations under this Guarantee or any part of it without the prior
written consent of RBF, the Owner, the Sureties and the Trustee; and (iv)
continue to be effective, or be reinstated, as the case may be, if at any
time payment or any part thereof, of any of the Obligations is rescinded or
must be restored or returned by RBF, the Owner, the Sureties or the Trustee
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of the Guarantor or upon the appointment of a receiver, trustee or similar
officer for the Guarantor all as though such payment had not been made.
SECTION 13. Non-Petition Covenant.
So long as any indebtedness or other obligations secured by the
Indenture are outstanding, the Guarantor will not institute, and will not
join with others in instituting, any involuntary bankruptcy or analogous
proceeding against RBF or the Owner under any bankruptcy, reorganization,
receivership or similar law, domestic or foreign, as now or hereafter in
efffect.
Section 14. Definitions.
All capitalized terms used in this Guarantee and not defined herein
are used with the meanings given to them in the Construction Supervisory
Agreement.
[signature page follows]
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guarantee, as of the date first above written.
R&B FALCON CORPORATION
By:_______________________
Name:_____________________
Title:____________________
THE STATE OF TEXAS )
)
COUNTY OF XXXXXX )
Before me, the undersigned authority, on this day personally appeared
_______________, the Executive Vice President of R&B FALCON CORPORATION,
known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity stated, and
as the act and deed of said corporation.
Given under my hand and seal of office this ________ day of February,
2000.
_________________________________
Notary Public, State of T E X A S
