EXHIBIT 10.31
Execution Copy
EXHIBIT B/G
OPERATION AND MAINTENANCE AGREEMENT
This OPERATION AND MAINTENANCE AGREEMENT (this "Agreement")
is executed as of June 2, 2000, by and between (1) R&B Falcon
Corporation, a Delaware corporation ("Manager"), (2) RBF
Exploration Co., a Nevada corporation ("RBFE"), (3) BTM Capital
Corporation, a Delaware corporation (together with its successors
and assigns, "BTM"), and (4) R&B Falcon Deepwater (UK) Limited, a
limited liability company incorporated in England and Wales
("Deepwater").
(A) WHEREAS, under that certain Offshore Daywork Drilling
Contract between Shell Deepwater Development Inc. ("SDDI") and
RBFE dated effective August 12, 1998 (as amended or modified to
date as permitted by the Trust Indenture, hereinafter defined,
the "Original SDDI Contract"), SDDI and RBFE agreed to certain
terms and conditions for RBFE's provision of certain drilling
services utilizing a certain semisubmersible drilling rig (being
the 'Rig' defined in the Original SDDI Contract, hereinafter
called the "Drilling Rig"); and
(B) WHEREAS, RBFE and Chase Bank of Texas, National Association
acting in its capacity as trustee on behalf of the Note Holders
defined in Recital (C) following, and together with its
successors and assigns, the "Indenture Trustee") entered into a
certain Trust Indenture and Security Agreement dated August 12,
1999, (the "Original Trust Indenture") which provides for and
pursuant to which there has been effected, among other things,
the pledge of certain collateral and the issuance of $200,000,000
Class A1 Senior Secured Notes and the issuance of $50,000,000
Class A2 Senior Secured Notes (collectively, the "Notes"),
subject to the terms and conditions contained therein; and
(C) WHEREAS, in connection with the sale of the Notes, RBFE
entered into certain Note Purchase Agreements dated August 12,
1999, as amended by the First Amendment to Note Purchase
Agreements dated as of February 1, 2000 (the "Note Purchase
Agreements") with various Note purchasers (together with their
successors and assigns as holders of any of the Notes the "Note
Holders"); and
(D) WHEREAS, in consideration of the purchase of the Notes
pursuant to the Note Purchase Agreements, the Note Holders
required that Manager enter into an agreement (the "Original O&M
Agreement") relating to the operation, maintenance and repair of
the Drilling Rig and certain other matters as set forth therein;
and
(E) WHEREAS, RBFE, the Indenture Trustee and BTM entered into a
certain Supplemental Indenture and Amendment dated February 1,
2000 (the "First Supplemental Indenture") which provided for,
among other things, the consent of the Note Holders to the
acquisition of the Drilling Rig by BTM; and
(F) WHEREAS, the Drilling Rig is registered under Panamanian
flag in the ownership of BTM, and BTM has granted in favour of
the Indenture Trustee a first naval mortgage over the Drilling
Rig dated February 2, 2000 (the "First Preferred Ship Mortgage");
and
(G) WHEREAS, by a hire purchase agreement dated March 20, 2000
(the "HP Agreement") entered into between BTM and Sovereign
Corporate Limited (together with its successors and assigns, the
"Lessor"), BTM has agreed to sell and the Lessor has agreed to
purchase the Drilling Rig; and
(H) WHEREAS, by a lease agreement dated June 2, 2000 (the
"Lease") entered into between the Lessor and Deepwater, the
Lessor has agreed to lease to Deepwater, and Deepwater has agreed
to take on lease, the Drilling Rig; and
(I) WHEREAS, by the Transfer Agreement (as defined in the
Original Trust Indenture), SDDI, RBFE and Deepwater have agreed
that with effect from the Commencement Date (as defined in the
Original SDDI Contract) the rights and obligations of RBFE under
the Original SDDI Contract shall (subject to rights of the
Indenture Trustee as assignee of the Original SDDI Contract) be
assigned and transferred to Deepwater (the Original SDDI Contract
as so assigned and transferred and as from time to time amended
or modified as permitted by the Trust Indenture, hereinafter
defined, the "SDDI Contract"); and
(J) WHEREAS, BTM as a condition to the giving of its consent to
the lease arrangements requires an indemnity from the Manager in
connection with its continuing ownership and the operation of the
Drilling Rig; and
(K) WHEREAS, Deepwater wishes to engage the services of the
Manager in connection with the operation, maintenance and repair
of the Drilling Rig as required for the performance by Deepwater
of its obligations as contractor under the SDDI Contract; and
(L) WHEREAS, RBFE, BTM, the Indenture Trustee and Deepwater have
entered into a certain Second Supplemental Indenture and
Amendment dated as of June 2, 2000 (the "Second Supplemental
Indenture") (the Original Trust Indenture, as modified by the
First and Second Supplemental Indentures and as from time to time
hereafter amended or modified, the "Trust Indenture"); and
(M) WHEREAS, Manager by virtue of its indirect ownership of RBFE
and Deepwater reasonably expects to benefit from Deepwater's
performance of its obligations under the SDDI Contract and the
maintenance of the Drilling Rig and BTM's continuing ownership of
the Drilling Rig and RBFE, as obligor in respect of the Notes
secured by Deepwater, is interested in ensuring that Deepwater
operates the Drilling Rig and procures its management on suitable
terms;
NOW, THEREFORE, in consideration of the premises set forth herein
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
ARTICLE 1 - DEFINITIONS
Unless otherwise defined herein, all capitalized terms used
herein shall have the respective meanings assigned to such terms
in the Trust Indenture. The following terms shall have the
respective meanings:
"Deed of Priorities" - means an agreement entered or to be
entered into between (among others) the Indenture Trustee, the
Lessor, the Manager, RBFE, Deepwater and BTM.
"Effective Date" - means the effective date of the transfer
by RBFE to Deepwater of RBFE's rights and obligations under the
Original SDDI Contract pursuant to the SDDI Contract Transfer
Agreement.
"Prudent Engineering and Operating Practices" -- The
practices generally prevailing in the offshore oil and gas
drilling industry but, at a particular time, in the exercise of
reasonable judgment in light of the facts known or that should
have been known to the Manager at the time a decision was made,
could have been expected to accomplish the desired result at a
reasonable cost in a manner consistent with law, reliability,
safety, security, environmental protection and expedition.
Prudent Engineering and Operating Practices include, but are not
limited to, insuring that:
(a) adequate materials, resources, supplies and fuel are
available to meet Deepwater's performance requirements under
the SDDI Contract,
(b) sufficient operating personnel are available and are
adequately experienced and trained to operate the Drilling
Rig properly and efficiently to meet Deepwater's performance
requirements under the SDDI Contract and are knowledgeable
about responding to normal, abnormal and emergency
conditions,
(c) preventive, routine and non-routine maintenance and
repairs are performed on a basis that will enable Deepwater
to meet Deepwater's performance requirements under the SDDI
Contract and that (i) promotes reliable long-term and safe
operation of the Drilling Rig, (ii) are performed by
knowledgeable, trained and experienced personnel utilizing
proper equipment and tools, and (iii) meets or exceeds any
requirements and recommendations set forth in all applicable
equipment manuals,
(d) appropriate monitoring and testing is done (i) to
determine equipment is functioning as designed, (ii) to
provide reasonable assurance that equipment will function
properly under normal, abnormal and emergency conditions,
and (iii) to meet or exceed any requirements and
recommendations set forth in applicable equipment operating
manuals,
(e) the Drilling Rig is not operated in a reckless manner
or without regard to applicable limitation such as
temperature, sea condition, control system limits and other
applicable operating limitations,
(f) the Drilling Rig is operated in such a manner as to
maximize revenues produced without materially decreasing the
Drilling Rig's useful life (normal wear and tear excepted)
or increasing the scheduled maintenance of the Drilling
Rig's components, and
(g) the Drilling Rig and each of its components is operated
and maintained in accordance with all applicable
manufacturer's recommendations and in such manner that all
applicable warranties shall remain in full force and effect.
"Second Preferred Ship Mortgage" - means a second priority
naval mortgage over the Drilling Rig granted or to be granted by
BTM in favour of the Lessor as security for the obligations of
Deepwater under the Lease and of BTM under the HP Agreement.
"Services" - has the meaning set out in Article II hereof.
ARTICLE II - SERVICES
SECTION 2.1 Services. Manager undertakes and agrees for
the benefit of each of the other parties and the Indenture
Trustee (for itself and on behalf of the Note Holders) on behalf
of Deepwater to operate, maintain, repair and take all other
actions of a prudent manager, owner or operator of the Drilling
Rig including, without limitation, the following (all such
obligations are herein called the "Services"):
(a) to perform or cause to be performed on behalf of
Deepwater any and all of the obligations and
responsibilities of every nature whatsoever, expressed
or implied, to be performed by Deepwater under the SDDI
Contract and under all documents and instruments
executed and to be executed pursuant to the SDDI
Contract as and when required to be made or performed
under the SDDI Contract, including, without limiting
the generality of the foregoing, with respect to
equipping, mobilizing, demobilizing, maintaining,
insuring, repairing, providing crew and drilling
services, invoicing SDDI in a timely manner and
performing of all indemnities and in all respects in
accordance with the terms of the SDDI Contract and
Prudent Engineering and Operating Practices;
(b) to advise Deepwater and the Indenture Trustee with
respect to any proposed amendment, modification or
change in the SDDI Contract;
(c) to maintain the Drilling Rig and all equipment used in
connection therewith in good running order, repair and
first class condition and in compliance with the SDDI
Contract and all Governmental Requirements and with the
class designation as specified in the definition of
Operational Period Conditions Precedent and, in
connection therewith, present any and all warranty
claims with respect to the Drilling Rig and to keep the
Drilling Rig at all time registered as a vessel under
the laws of the Republic of Panama and otherwise
operate or cause to be operated the Drilling Rig in
accordance with the SDDI Contract and Prudent
Engineering and Operating Practices and otherwise in a
careful and efficient manner and in compliance with all
Governmental Requirements, including, without
limitation, operating the Drilling Rig in such a manner
and in compliance with all Governmental Requirements
such that SDDI shall have no right under Section 10.3
of the SDDI Contract or otherwise to withhold any
federal, state or local income or other taxes from
payments due under the SDDI Contract, provided,
however, to the extent SDDI does withhold any such
payments, the Manager shall promptly pay Deepwater an
amount equal to such withheld payments, on an after-tax
basis;
(d) subject to the requirements and restrictions of the
Trust Indenture, the First Preferred Ship Mortgage, the
Lease, the Second Preferred Ship Mortgage and the
Assignment of Drilling Contract, to take all other
actions with respect to the Drilling Rig or the SDDI
Contract as the Manager shall deem to be in the best
interest of Deepwater;
(e) to negotiate and enter into all contracts and
arrangements to provide services necessary to perform
Deepwater's obligations under the SDDI Contract on such
terms and conditions as are customary and reasonable in
light of local standards and practices and Prudent
Engineering and Operating Practices;
(f) to obtain and maintain in full force and effect all
necessary licenses, permits, authorizations and other
rights required under all applicable laws, rules and
regulations from all Governmental Authorities in
connection with the ownership and operation of the
Drilling Rig pursuant to the SDDI Contract or
otherwise;
(g) to maintain all books and records with respect to the
operation and maintenance of the Drilling Rig and
performance of the SDDI Contract;
(h) to cause the surveys and inspections referred to in
Annex D of the Trust Indenture to be timely conducted
and satisfactorily passed with the five (5) year
surveys and inspections conducted and passed prior to
the Maturity Date;
(i) in the event of any damage to the Drilling Rig from any
casualty having a repair cost in excess of $1,000,000
to give prompt written notice thereof to Deepwater,
RBFE, BTM and the Indenture Trustee, which notice shall
set forth in reasonable detail the nature and extent of
the damage, an estimate of the costs and repairs and an
estimate of the length of time necessary to repair such
damage. Such notice shall also state whether the
Manager considers such damage to constitute an Event of
Loss, which statement shall not, however, be
determinative. With respect to any casualty damage,
regardless of whether insurance proceeds are available,
the Manager shall promptly and diligently repair the
Drilling Rig or cause the Drilling Rig to be repaired
to the same condition as it was before such damage and
in compliance with the foregoing requirements, free and
clear of all liens and encumbrances;
(j) to enforce all obligations of SDDI under the SDDI
Contract;
(k) to maintain all insurance on the Drilling Rig at all
times in accordance with the requirements set forth in
the Trust Indenture and the Lease, including but not
limited to maintaining appropriate levels of insurance
to comply with the Oil Pollution Act of 1990;
(l) to provide all personnel required in order to perform
Deepwater's obligations under the SDDI Contract , such
personnel to have the qualifications necessary to
comply with Deepwater's obligations under the SDDI
Contract and any qualifications imposed by applicable
laws, rules and regulations;
(m) to provide such administrative, engineering and other
technical support services as may be needed including,
without limitation, accounting, data processing, legal,
tax, project management, contract administration,
transportation, communications, payroll, purchasing,
shipping and personnel administration services;
(n) to furnish Deepwater, RBFE, BTM and the Indenture
Trustee, as soon as possible, and in any event within
two (2) business days after receipt, any notice of any
claim, default, violation (actual or threatened) of any
applicable laws, rules and regulations, of the SDDI
Contract, or any threatened or pending litigation with
respect to or which could cause a Material Adverse
Effect on Deepwater, RBFE, the Drilling Rig or the SDDI
Contract, together with a written summary setting forth
the details of such notice, if any, and the action that
is proposed to be taken by the Manager with respect
thereto;
(o) to operate the Drilling Rig in compliance with
Environmental Laws, and to establish and implement such
procedures as may be reasonably necessary to
continuously determine and assure that: (i) all
property of Deepwater and BTM including, without
limitation, the Drilling Rig, the operations conducted
thereon and other activities of Deepwater are in
compliance with and do not violate the requirements of
any Environmental Laws, (ii) no oil, hazardous
substances or solid wastes are disposed of, discharged
or are otherwise released except in compliance with
Environmental Laws, (iii) no hazardous substance will
be released in a quantity equal to or exceeding that
quantity which requires reporting pursuant to Section
103 of the CERCLA, and (iv) no oil, oil exploration and
production wastes or hazardous substance is discharged
or released so as to pose an eminent and substantial
endangerment to public health or welfare or the
environment which will result in damages recoverable
under OPA;
(p) to develop and implement an occupational safety plan
and a spill plan and submit such plans to Deepwater,
BTM and the Indenture Trustee;
(q) so long as the Trust Indenture is in full force and
effect to keep the Drilling Rig at all times in United
States territorial waters in the Gulf of Mexico or in
the Gulf of Mexico on or above the outer Continental
Shelf of the United States; provided, however, if SDDI
requires the Drilling Rig to change location pursuant
to the SDDI Contract, the Drilling Rig may, subject to
giving BTM reasonable prior notice of the relevant
change of location, be moved to such location as SDDI
so requires; and
(r) to maintain and provide evidence of financial
responsibility to satisfy the requirements of the Oil
Pollution Xxx 0000.
SECTION 2.2 Obligations Absolute. The obligations of the
Manager hereunder including, without limitation, the payment
obligations in Section 6.2(b) are absolute and unconditional and
are performable and payable without set-off, deduction or
defense, and without abatement, suspension, deferment, diminution
or reduction, free from charges, assessments, impositions,
expenses or deductions of any and every kind or nature whatsoever
including, without limitation, (i) any right the Manager may have
against BTM, RBFE, the Lessor, Deepwater, SDDI or any other party
hereunder or pursuant to the SDDI Contract or otherwise; (ii) any
breach, default or misrepresentation by BTM, RBFE, the Lessor,
Deepwater or SDDI pursuant to this Agreement, the SDDI Contract
or otherwise; or (iii) any invalidity or unenforceability in
whole or in part of this Agreement or the SDDI Contract or any
other document or instrument relating thereto, or any other
infirmity therein or lack of power or authority of any party
thereto (provided however that any monetary damage recoveries for
claims made hereunder by Deepwater, RBFE, BTM and/or the
Indenture Trustee shall be without duplication). Except as
expressly provided in Article IV below, this Agreement shall not
terminate and the Manager shall not have any right to terminate
this Agreement nor shall the Manager have the right to be
released or discharged from any obligations or liabilities
hereunder for any reason, including, without limitation, any
failure of Deepwater to make reimbursement or pay compensation
pursuant to Article III below or any action, omission or breach
on the part of BTM, RBFE, the Lessor, Deepwater or SDDI under
this Agreement or the SDDI Contract or any other agreement
between said parties; the impossibility or illegality of
performance by BTM, RBFE, the Lessor, Deepwater or SDDI; any
action of any court, administrative agency or governmental
authority; or any other cause, whether similar or dissimilar to
the foregoing, any present or future law notwithstanding, and the
Manager will remain obligated under this Agreement
notwithstanding any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting BTM, the
Lessor, Deepwater or RBFE.
ARTICLE III - COMPENSATION
SECTION 3.1 Reimbursements.
All direct expenses incurred by the Manager in performance
of the Services herein will be reimbursed to the Manager by
Deepwater. The Manager will provide Deepwater with invoices and
documentation in sufficient detail to describe the direct
expenses to be reimbursed. Deepwater will reimburse the Manager
for such direct expenses within ten (10) days after receipt of
the invoice and documentation as aforesaid.
SECTION 3.2 Manager Fee. Deepwater shall pay the Manager
a fixed amount of $2,500 per day as a fee for performing the
Services under this Agreement. Such fee shall be payable in 12
equal monthly payments.
As provided in Section 2.2 above any failure by Deepwater to
make a reimbursement called for in Section 3.1 or to pay all or
any portion of the Manager Fee under Section 3.2 above shall not
give rise to a right of the Manager to terminate this Agreement
or to reduce or suspend the Manager's obligations to perform
hereunder, but in such event the Manager's claim against
Deepwater shall be deferred until payment in full of the Notes
and other indebtedness and obligations under the Trust Indenture
and any such claim is and shall be subordinate in right of
payment to payment in full of the Notes and other indebtedness
and obligations under this Trust Indenture.
ARTICLE IV - TERM
SECTION 4.1 Term. This Agreement shall take effect on
the Effective Date and, unless earlier terminated as provided in
Article VI below, shall remain in full force and effect until the
last to occur of (i) termination of the SDDI Contract and (ii)
payment in full of the Notes and termination of the Trust
Indenture.
SECTION 4.2 Termination of Original O&M Agreement.
Simultaneously with the taking effect of this Agreement in
accordance with Section 4.1, the Original O&M Agreement shall be
and is hereby deemed to be terminated with immediate effect
except that any obligations of indemnity with respect to any fact
or circumstance in existence, or directly or indirectly arising
out of any fact or circumstance in existence, on or prior to the
taking effect of this Agreement shall (whether or not such fact
or circumstance was known or knowable) continue unaffected.
ARTICLE V - REPRESENTATION AND WARRANTIES
The Manager represents and warrants to Deepwater, BTM and
RBFE as follows:
SECTION 5.1 Organization and Power. The Manager (i) is a
corporation duly formed, validly existing and in good standing
under the laws of the State of Delaware and is duly qualified as
a foreign corporation and in good standing in all jurisdictions
in which such qualification is required in order for the Manager
to carry on its business as now conducted and as required to
fulfill its obligations hereunder; and (ii) has the full
corporate power, authority and legal right to carry on its
business as now conducted and to execute, deliver and perform
this Agreement.
SECTION 5.2 No Violation. Neither the execution,
delivery or performance by the Manager of this Agreement nor
compliance herewith (i) conflicts or will conflict with or
results or will result in a breach of or constitutes or will
constitute a default under (A) any law in effect as of the date
hereof binding upon the Manager or the Drilling Rig or (B) any
order, writ, injunction or decree of any court or other
governmental authority binding upon the Manager or the Drilling
Rig, or (ii) results or will result in the creation or imposition
of any lien, charge or encumbrance upon its property pursuant to
such agreement or instrument. Neither the execution, delivery or
performance by the Manager of this Agreement nor compliance by
the Manager herewith conflicts or will conflict with or results
or will result in a breach of or constitutes or will constitute a
default under (i) the certificate of incorporation or by-laws of
the Manager or (ii) any agreement or instrument to which the
Manager is a party or by which it is bound.
SECTION 5.3 Agreement is Legal and Authorized. This
Agreement has been duly authorized by the Manager by all
necessary corporate action (including any necessary action by its
shareholders) and duly executed and delivered by it, and,
assuming the due authorization, execution and delivery thereof by
the other parties hereto, is a legal, valid and binding
obligation of the Manager enforceable against it in accordance
with its terms, except as certain rights and remedies as set
forth herein may be limited by (a) bankruptcy, reorganization and
similar laws of general application relating to or affecting the
enforcement of creditors' rights and (b) general principles of
equity.
SECTION 5.4 Consents. No consent, license, approval or
authorization of, or filing, registration or declaration with, or
exemption or other action by, any Governmental Authority other
than those obtained and in full force and effect is required in
connection with the execution and delivery or performance by the
Manager of this Agreement.
SECTION 5.5 Standards of Performance. The Manager
represents that (a) it has substantial knowledge, experience and
expertise with respect to the offshore drilling industry and has
required expertise covering resources experience, qualifications
and capabilities in connection with fulfilling its obligations
hereunder, (b) it shall execute its responsibilities under this
Agreement in a manner that is consistent with Prudent Engineering
and Operating Practices and is qualified to do so, (c) it will
utilize personnel that are qualified, experienced and capable,
and (d) it will correctly install any equipment or materials
requiring installation in order to fulfill its obligations
hereunder.
SECTION 5.6 Permits. The Manager represents that all
governmental consents, licenses and permits required for it to
perform the Services have been or will be obtained by it on or
before the time required by any applicable laws.
SECTION 5.7 No Violation of Law. Neither the Manager nor
any affiliate of the Manager is in violation of any applicable
laws, statutes, orders, rules or regulations promulgated or
judgments entered by any Governmental Authority, which
violations, individually or in the aggregate, would adversely
affect Manager's ability to perform its obligations hereunder.
SECTION 5.8 Litigation. Neither the Manager nor any
affiliate of the Manager is a party to or is threatened with any
legal, administrative, arbitral, investigative, arbitral or other
proceedings ("Proceedings"), which Proceedings, individually or
in the aggregate, would materially and adversely affect the
Manager's ability to perform its obligations under this
Agreement.
ARTICLE VI - EVENTS OF DEFAULT
SECTION 6.1 Events of Default. The occurrence of any one
or more of the following events shall be an "Event of Default"
hereunder:
(a) The Manager shall fail to observe or perform any term,
covenant or condition of this Agreement and such failure shall
either (i) cause a default under the SDDI Contract or (ii) remain
uncured for a period of 30 days after the earlier of actual
knowledge thereof by the Manager or the giving of written notice
thereof by Deepwater or the Indenture Trustee;
(b) any representation or warranty made by the Manager in
this Agreement (or in any certificate or instrument executed in
connection therewith) shall be untrue, inaccurate or misleading
in any material respect;
(c) The Manager shall generally fail to pay, or admit in
writing its inability to pay, its debts as they become due, or
shall voluntarily commence any case or proceeding or file any
petition under any bankruptcy, insolvency or similar law or
seeking dissolution, liquidation or reorganization or the
appointment of a receiver, agent, custodian, liquidator or
similar person for itself or a substantial portion of its
property, assets or business or to effect a plan or other
arrangement with its creditors, or shall file any answer
admitting the jurisdiction of the court and the material
allegations of any involuntary petition filed against it in any
bankruptcy, insolvency or similar case or proceeding, or shall be
adjudicated bankrupt, or shall make a general assignment for the
benefit of creditors, or shall consent to, or acquiesce in the
appointment of, a receiver, agent, custodian, liquidator or
similar person for itself or a substantial portion of its
property, assets or business, or action shall be taken by the
Manager, for the purpose of effectuating, authorizing or
furthering any of the foregoing;
(d) involuntary proceedings or an involuntary petition
shall be commenced or filed against the Manager under any
bankruptcy, insolvency or similar law or seeking the dissolution,
liquidation or reorganization of such person or the appointment
of a receiver, agent, custodian, liquidator or similar person for
the Manager or of a substantial part of its property, assets or
business, or any writ, judgment, warrant of attachment, execution
or similar process shall be issued or levied against a
substantial part of its property, assets or business, and such
proceedings or petition shall not be dismissed or stayed, or such
writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded, within 60
days after commencement, filing or levy, as the case may be;
(e) a "Contractor" default occurs and is continuing under
the SDDI Contract and the Manager is not diligently pursuing the
cure thereof;
(f) the SDDI Contract shall for any reason be terminated or
cease to be in full force and effect; or
(g) SDDI, for any reason, becomes entitled to a material
off-set, deduction or abatement in payment of the Operating Rate
(as defined in the SDDI Contract) under and pursuant to the SDDI
Contract.
SECTION 6.2 Remedies.
(a) If an Event of Default shall have occurred and be
continuing, RBFE, Deepwater and the Indenture Trustee shall have
all rights and remedies available at law, equity or otherwise.
(b) In addition to the remedies provided in Section 6.2(a)
above, and in furtherance thereof, if an Event of Default shall
have occurred and be continuing and as a result thereof SDDI has
discontinued or reduced payments of the Operating Rate (as
defined in the SDDI Contract) during the Primary Period (as
defined in the SDDI Contract) or has terminated the SDDI Contract
(any such discontinuance or reduction or termination being
referred to as an "SDDI Event"), the Indenture Trustee shall be
entitled (but not obligated) to appoint a new Manager and/or
operator under and pursuant to Paragraph 2.2.4.1 of the SDDI
Contract, and RBFE, Deepwater and the Indenture Trustee shall be
entitled to, and the Manager shall pay as liquidated damages to
the Indenture Trustee for the account of RBFE within five
Business Days of demand of the Indenture Trustee, the following:
(i) so long as the SDDI Contract is still in force and
effect and the Operating Rate payments have been
discontinued or reduced, the Manager shall pay on each date
that the Operating Rate is payable pursuant to the SDDI
Contract an amount equal to the difference between the
portion of each Operating Rate payment, if any, timely
received by or for the account of Deepwater and the full
amount of the Operating Rate payment that would have been
due on such date but for such Event of Default; and
(ii) in the event the SDDI Contract is terminated, the
Manager shall pay within five Business Days of demand, as
aforesaid, the discounted present value of the Operating
Rate payments which SDDI would have been required to pay for
the period from the date of termination to the end of the
Primary Period using a discount rate of 7.35%.
(c) The Parties acknowledge and agree that because of the
unique nature of the SDDI Contract and the unavailability of a
timely and practical substitute contract, it is difficult or
impossible to determine with precision the amount of damages that
would or might be incurred as a result of an SDDI Event.
Accordingly, it is understood and agreed by the Parties that (i)
RBFE and/or Deepwater and each Note Holder shall be damaged by
the occurrence of an SDDI Event, (ii) it would be impracticable
or extremely difficult to fix the actual damages resulting
therefrom, (iii) any sums that would be payable under Section
6.2(b) are in the nature of liquidated damages, and not
penalties, and are fair and reasonable, and (iv) such payment
represents a reasonable estimate of fair compensation for the
losses that may reasonably be anticipated from such SDDI Event,
and shall, without duplication, be the sole and exclusive measure
of damages with respect to the SDDI Event. In addition to the
foregoing, RBFE and/or Deepwater and the Indenture Trustee shall
be entitled to any and all other damages that RBFE and/or
Deepwater, the Indenture Trustee and any Note Holder may sustain
due to an Event of Default from a cause other than an SDDI Event.
(d) If the SDDI Contract is terminated, in addition to, but
not in lieu of, the payment obligation in Section 6.2(b)(ii), the
Manager shall use its best efforts to find alternative employment
for the Drilling Rig acceptable to Deepwater and, provided the
Indenture Trustee has any further interest under the Trust
Indenture, the Indenture Trustee. If such employment is found,
Deepwater shall pay to the Manager any amounts received by it as
a result of such employment (net of any amounts required by
Deepwater to discharge as they fall due its liabilities in
respect of Deepwater Responsibilities) until the earlier to occur
of:
(i) an amount equal to that paid by the Manager to the
Indenture Trustee for the account of RBFE and/or Deepwater
pursuant to Section 6.2(b)(ii) above has been paid to the
Manager; or
(ii) the date on which the Primary Period (as defined in the
SDDI Contract) would have expired.
(e) No failure to exercise and no delay in exercising any
right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy or power or privilege under this
Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges provided in this
Agreement are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
(f) If an Indenture Event of Default or an Event of Default
hereunder shall have occurred and be continuing, Manager
irrevocably and unconditionally covenants and agrees that Manager
shall, upon demand of the Indenture Trustee, immediately move the
Drilling Rig to such United States port or other location within
the territorial waters of the United States subject to the in rem
admiralty jurisdiction of the United States federal courts as
Indenture Trustee may designate in writing in its sole and
absolute discretion. Manager is authorized and directed to move
the Drilling Rig as aforesaid upon written notice from the
Indenture Trustee, and Manager agrees to so move the Drilling Rig
at the direction of the Indenture Trustee, notwithstanding any
contrary or conflicting instructions or advice from Deepwater,
the Lessor, or any other Person, and Manager shall not be
required to make inquiry as to the truth or accuracy of such
notice from the Indenture Trustee or the right of the Indenture
Trustee to act as aforesaid and shall have no liability or
obligations to Deepwater in connection therewith. The rights of
the Indenture Trustee hereunder are conditioned only upon its
delivery of the notice aforesaid and may be exercised by the
Indenture Trustee either with or without taking possession of the
Drilling Rig or any other Collateral and either before or after
taking possession of any such Collateral, and without instituting
any legal or foreclosure proceedings whatsoever. Any cost or
expense incurred by Manager in connection with the foregoing
shall be reimbursed by Deepwater as set forth in Section 3.1
hereof, and shall in no event be required to be paid by the
Indenture Trustee. The obligation of Manager under this
subsection (f), to the maximum extent permitted by law, is
absolute and unconditional, irrespective of any breach or default
by Deepwater, BTM or RBFE hereunder, or any other Person, the
insolvency, bankruptcy, reorganization, dissolution or
liquidation of Deepwater, BTM, RBFE or the Lessor, any change in
ownership of Deepwater, BTM or RBFE or any other circumstance
whatsoever which might otherwise constitute a legal or equitable
discharge or defense of Manager with respect to the foregoing
obligation to move the Drilling Rig.
SECTION 6.3 Deepwater's and Indenture Trustee's Right to
Cure Event of Default. Deepwater or the Indenture Trustee,
without waiving or releasing any obligation owed to it or any
Event of Default may (but shall be under no obligation to) remedy
any Event of Default for the account of and at the sole cost and
expense of the Manager. All funds advanced or out-of-pocket
costs and expenses incurred in connection with such remedy,
together with interest thereon at the Default Rate from the date
on which such sums or expenses are paid by Deepwater or the
Indenture Trustee, shall be paid by the Manager to Deepwater or
the Indenture Trustee, as appropriate, on demand.
ARTICLE VII - INDEMNIFICATION
SECTION 7.1 The Manager agrees to pay all reasonable
expenses of Deepwater, RBFE, BTM, the Indenture Trustee and the
Note Holders (collectively the "Relevant Parties") (including
advice of external counsel as to the rights and duties of each
Relevant Party with respect thereto) in the administration of,
and in connection with the preservation of rights under and
enforcement of this Agreement (including, without limitation,
travel, photocopy, mailing, courier, telephone and other similar
expenses of each Relevant Party) and the reasonable fees and
disbursements of external counsel and other outside consultants;
and promptly reimburse each Relevant Party for all amounts
expended, advanced or incurred by any of them to satisfy any
obligation of the Manager hereunder.
SECTION 7.2 (a) The Manager agrees to indemnify each
Relevant Party, each Credit Support Party and each of their
Affiliates and each of their officers, directors, employees,
representatives, agents, attorneys, accountants and experts
("Indemnified Parties") from, hold each of them harmless against
and promptly upon demand pay or reimburse each of them for, all
Indemnity Matters which may be incurred by or asserted against or
involve any of them (whether or not any of them is designated a
party thereto) to the extent as a result of, arising out of or in
any way related to (a) the condition, use, ownership, operation,
maintenance, repair and management of the Drilling Rig including,
without limitation, Indemnity matters based in whole or in part
on strict or absolute tort liability, (b) relating to the
Drilling Rig and the appurtenances thereto, the performance of
the SDDI Contract and the use and occupancy of the Drilling Rig
by Manager or anyone claiming by, through or under Manager and
including, without limitation, by SDDI, (c) the failure of the
Lessee to comply with the provisions of Section 4.02(e) of the
Second Supplemental Indenture or (d) arising or alleged to arise
from or in connection with any of the following events: (i) any
injury to, or the death of, any person or any damage to or loss
of property on or adjacent to the Drilling Rig or growing out of
or directly or indirectly connected with, or alleged to grow out
of or be directly or indirectly connected with, the ownership,
use, nonuse, occupancy, operation, possession, condition,
construction, repair or rebuilding of the Drilling Rig, or
alleged to result, from the condition of any thereof; (ii) any
claims by third parties to the extent resulting from any
violation or alleged violation by Manager of (A) any provision of
this Agreement, or (B) any law, rule or regulations affecting the
Drilling Rig, or (C) any charter, contract (other than this
Agreement) or other agreement relating to the Drilling Rig as of
the date hereof or hereafter in effect to which Manager is a
party or by which Manager is bound, or (D) any contract or
agreement to which Manager is a party, or any restriction, law,
rule or regulation, affecting the Drilling Rig or the ownership,
use, nonuse, occupancy, condition, operation, possession,
construction, repair or rebuilding thereof; (iii) any contest by
Manager permitted by section 7.6; (iv) Manager's failure to pay
in accordance with the terms and provisions hereof any sums
payable by Manager hereunder or under any other document to which
Manager is a party or (v) which may be imposed upon, incurred by
or asserted against any Indemnified Party in any way relating to
or arising out of this Agreement or the enforcement of any of the
terms hereof and thereof (other than by Manager), including,
without limitation, the reasonable fees and disbursements of
external counsel and all other expenses incurred in connec-tion
with investigating, defending or preparing to defend any such
action, suit, proceeding (including any investigations,
litigation or inquiries) or claim and including all Indemnity
Matters arising by reason of the ordinary negligence of any
Indemnified Party, but excluding all Indemnity Matters arising
solely by reason of claims between the Note Holders or any Note
Holder and a Note Holder's shareholder or by reason of the gross
negligence or willful misconduct on the part of the relevant
Indemnified Party.
(b) (i)The Manager represents and warrants to each
Indemnified Party (and for so long as any amount in respect of
any Note remains unpaid or any other obligation under the Project
Documents to any Indemnified Party has not been paid and
satisfied in full shall be deemed to continuously represent and
warrant to each Indemnified Party): that (I) the execution,
delivery, performance and enforcement of this Agreement, the
Second Supplemental Indenture, the Deed of Proceeds and other
documents referred to herein or therein will not: (i) subject any
Indemnified Party to any Tax imposed by the United Kingdom or any
governmental or taxing authority thereof or therein; (ii) require
that any Indemnified Party 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
and (II) this Agreement, the Second Supplemental Indenture, the
Deed of Proceeds and the other documents referred to herein or
therein 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. "Tax" shall mean
any and all fees (including, without limitation, documentation,
license and registration fees), taxes (including, without
limitation, income, gross income, gross receipts, net income,
leasing, excise, fuel, excess profits, sales, use, value added,
property, personal and real, tangible and intangible, and stamp
taxes), levies, imposts, duties, charges, assessments, or
withholdings of any nature whatsoever, now existing or hereafter
created or adopted, imposed by any foreign, Federal, state or
local governmental or taxing authority, together with any and all
penalties, fines, additions to tax and interest thereon.
(ii) The Manager agrees to indemnify and hold harmless
each Indemnified Party from and against any and all loss, cost,
liability and expense, suffered or incurred or claimed against
any of them, and which directly or indirectly arise out of, or
relate to, or are alleged to directly or indirectly arise out of
or relate to, the inaccuracy in any respect as at any time made
or deemed made of the representation made pursuant to Subsection
(b)(i) above, whether or not such inaccuracy was known to, or
knowable by, or within or without the control of the Manager to
remedy or affect in any way; provided, however, that no
indemnification against loss, cost, liability or expense paid by
the Manager shall include any amount of principal or interest
payable to the holder of any Note but shall only represent the
amount lost by an Indemnified Party or the expenses related to
such loss arising out of the breach of the representations and
warranties contained in Section 7.2(b)(i) above.
SECTION 7.3 The Manager agrees to indemnify and hold
harmless from time to time each Indemnified Party from and
against any and all losses, claims, cost recovery actions,
administrative orders or proceedings, damages and liabilities to
which any such Person may become subject (i) under any
Environmental Law applicable to the Manager, Deepwater or BTM or
the operation of the Drilling Rig, including without limitation,
the treatment or disposal of hazardous substances, (ii) as a
result of the breach or non-compliance by the Manager or the
operation of the Drilling Rig with any Environmental Law
applicable to the Manager, Deepwater or BTM or the operation of
the Drilling Rig, (iii) due to any past ownership or past
activity on any Properties which, though lawful and fully
permissible at the time, could result in present liability, (iv)
the presence, use, release, storage, treatment or disposal of
hazardous substances on or with respect to the Drilling Rig, or
(v) any other environmental, health or safety condition in
connection with the ownership, use, operation, maintenance or
repair of the Drilling Rig, provided, however, no indemnity shall
be afforded under this section in respect of any Property for any
occurrence arising solely from the acts or omissions of the
Indenture Trustee or, any Note Holder or BTM during the period
after which such Person, its successors or assigns shall have
obtained actual possession of such Property to the exclusion of
Deepwater and Manager (whether by foreclosure or deed in lieu of
foreclosure, as mortgagee-in-possession or otherwise) except such
acts or omissions of the Indenture Trustee or, any Note Holder or
BTM relating in any way to, or arising directly or indirectly out
of or resulting directly or indirectly from any circumstance or
condition in existence prior to such actual possession by the
Indenture Trustee, any Note Holder or BTM, whether or not known
to, or knowable or discoverable by, any party prior to such
possession or from the failure by the Manager to perform any of
its obligations hereunder or by Deepwater to perform any of its
obligations under the SDDI Contract.
SECTION 7.4 The obligations and indemnities contained in
this Article VII shall continue in full force and effect
notwithstanding the delivery and acceptance of the Rig,
expiration or earlier termination of this Agreement and the
payment and satisfaction of the Notes and other obligations
secured by the Indenture. In any and all claims against any
Indemnified Party by any employee of the Manager, any contractor,
any subcontractor, anyone directly or indirectly employed by any
of them or anyone for whose acts any of them may be liable, the
indemnification obligation under this Article VII shall not be
limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable by or for the Manager
or any subcontractor under workers' compensation acts, disability
benefit acts or other employee benefit acts.
SECTION 7.5 The indemnities provided by the Manager in
this Article VII shall be made from time to time on demand of any
Indemnified Party and shall be made in each case on a fully After-
Tax Basis. "After-Tax Basis" shall mean, with respect to any
payment received or accrued by any Person, supplementing the
amount of such payment by a further payment or payments so that
the sum of all such payments after deduction (to the extent
permitted by law) of all Taxes payable by such Person imposed by
any Federal, state or local or foreign taxing authority in
respect of the receipt or accrual of such payment, shall be equal
to the payment due to such Person.
SECTION 7.6 So long as no Indenture Event of Default
shall have occurred and be continuing, no Indemnified Party may
settle any claim to be indemnified without the consent of the
Manager, such consent not to be unreasonably withheld; provided,
that the Manager may not reasonably withhold consent to any
settlement that an Indemnified Party proposes, if the Manager
does not have the financial ability to pay all its obligations
outstanding and asserted against the Manager at that time,
including the maximum potential claims against the Indemnified
Party to be indemnified pursuant to this Article VII.
SECTION 7.7 In the case of any indemnification hereunder,
an Indemnified Party shall give notice to the Manager of any
claim or demand being made against it; provided, however, that
the failure to give such notice shall not release the Manager
from any of its obligations, except to the extent that failure to
give notice of any action, suit or proceeding against such
Indemnified Party shall have a material adverse affect on the
Manager's ability to contest such claim or demand. Subject to
the provisions of the following paragraph, the Manager shall at
its sole cost and expense be entitled to control, and shall
assume full responsibility for, the defense of such claim or
liability; provided that the Manager shall keep the Indemnified
Party which is the subject of such proceeding fully apprised of
the status of such proceeding and shall provide such Indemnified
Party with all information with respect to such proceeding as
such Indemnified Person shall reasonably request.
Notwithstanding any of the foregoing to the contrary, the
Manager shall not be entitled to control and assume
responsibility for the defense of such claim or liability if (i)
an Event of Default shall have occurred and be continuing under
this Agreement, (ii) an Indenture Event of Default shall have
occurred and be continuing, (iii) such proceeding will involve
any danger of the sale, forfeiture or loss of, or the creation of
any Lien (other than an Excepted Lien or a Lien which is
adequately bonded to the satisfaction of such Indemnified Party)
on, the Trust Estate or any part thereof, (iv) in the good faith
opinion of such Indemnified Party, there exists an actual or
potential conflict of interest such that it is advisable for such
Indemnified Person to retain control of such proceeding or (v)
such claim or liability involves the possibility of criminal
sanctions or liability to such Indemnified Party. In the
circumstances described in clauses (i) - (v), the Indemnified
Party shall be entitled to control and assume responsibility for
the defense of such claim or liability at the expense of the
Manager. In addition, any Indemnified Party may participate in
any proceeding controlled by the Manager, at its own expense in
respect of any such proceeding as to which the Manager shall have
acknowledged in writing its obligation to indemnify the
Indemnified Party, and at the expense of the Manager in respect
of any such proceeding as to which the Manager shall not have so
acknowledged its obligation to the Indemnified Party. The
Manager may in any event participate in all such proceedings at
its own cost. Nothing contained herein shall be deemed to
require an Indemnified Party to contest any claim or demand or to
assume responsibility for or control of any judicial proceeding
with respect thereto.
SECTION 7.7 The foregoing indemnities shall extend to the
Indemnified Parties notwithstanding the sole or concurrent
negligence of every kind or character whatsoever, whether active
or passive, whether an affirma-tive act or an omission, including
without limitation, all types of negligent conduct identified in
the restatement (second) of torts of one or more of the
Indemnified Parties or by reason of strict liability imposed
without fault on any one or more of the Indemnified Parties. To
the extent that an Indemnified Party is found to have committed
an act of gross negligence or willful misconduct, this
contractual obligation of indemnification, as to such Indemnified
Party, shall continue but shall only extend to the portion of the
claim that is deemed to have occurred by reason of events other
than the gross negligence or willful misconduct of the
Indemnified Party.
SECTION 7.8 The Manager shall pay any amounts due under
this Article VII within thirty (30) days of the receipt by the
Manager of notice of the amount due.
ARTICLE VIII - MISCELLANEOUS
SECTION 8.1 Notices. All notices, consents, directions,
approvals, instructions, requests, demands and other
communications required or permitted by the terms hereof to be
given to any person shall be given in writing in and any such
notice shall be deemed given (i) when personally delivered, or
(ii) three days after the date deposited in the United States
mails, with proper postage prepaid, for first class certified
mail, return receipt requested, or (iii) when signed for by the
recipient, if delivered by overnight courier or express mail
service, addressed as follows:
if to RBFE:
RBF Exploration Co.
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
if to Deepwater:
R&B Falcon Deepwater (UK) Limited
Suite E, Stoneywood Office Complex
Xxxxxxxxxx Xxxx Xxxxx
Xxxx,
Xxxxxxxx XX00 0XX
Xxxxxxxx
if to Manager:
R & B Falcon Corporation
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
if to the Indenture Trustee:
Chase Bank of Texas, National Association
1150 Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
or at such other address as any party hereto may from time to
time designate by notice duly given in accordance with the
provisions of this Section 8.1 to the other party.
SECTION 8.2 Successors and Assigns. The Manager may not
make an assignment or other transfer of this Agreement or any
interest herein by operation of law or otherwise unless it has
obtained the prior written consent of the Indenture Trustee, BTM,
RBFE and Deepwater to such assignment or other transfer, which
consent may be withheld, conditioned or delayed. Each of
Deepwater, BTM and RBFE may assign its rights and benefits under
this Agreement, with the prior written consent of the Indenture
Trustee, to any successor or to any transferee of the Drilling
Rig, the Indenture Trustee, any Note Holder or the Surety. The
Indenture Trustee may assign its right and benefits under this
Agreement to any successor or to any Note Holder or the Surety.
SECTION 8.3 No Waiver; Amendments. No failure on the
part of Deepwater, BTM, RBFE or the Indenture Trustee or any of
their respective agents to exercise, and no course of dealing
with respect to, and no delay in exercising, any right, power, or
remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by Deepwater, BTM, RBFE, or the
Indenture Trustee or any of their respective agents of any right,
power, or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power, or remedy. No
amendment of this Agreement shall be effective unless the same
shall be in writing and signed by each party hereto and consented
to in writing by the Indenture Trustee. No waiver of any
provision of this Agreement shall be effective unless signed by
each party having the benefit of such provision and the Indenture
Trustee.
SECTION 8.4 Governing Law; Submission to Jurisdiction;
Etc.
(a) This Agreement (including, but not limited to, the
validity and enforceability hereof and thereof) shall be governed
by, and construed in accordance with, the laws of the state of
New York, other than conflict of laws rules thereof that would
require the application of the laws of a jurisdiction other than
such state.
(b) Any legal action or proceeding with respect to this
Agreement may be brought in the courts of the State of New York
in New York County or of the United States of America for the
Southern District of New York, and, by execution and delivery of
this Agreement, each party hereby accepts for itself and (to the
extent permitted by law) in respect of its Property, generally
and unconditionally, the jurisdiction of the aforesaid courts.
Each party hereby irrevocably waives any objection, including,
without limitation, any objection to the laying of venue or based
on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action or proceeding
in such respective jurisdictions. This submission to
jurisdiction is non-exclusive and does not preclude any Person
from obtaining jurisdiction over other parties in any court
otherwise having jurisdiction.
(c) Each party other then BTM hereby irrevocably designates
Capitol Services, Inc. located at 000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxx Xxxx 00000, as its designee, appointee and agent to
receive, for and on its behalf, service of process in such
jurisdiction in any legal action or proceeding with respect to
this Agreement. It is under-stood that a copy of such process
served on such agent will be promptly forwarded by overnight
courier to each relevant party at its address set forth herein,
but the failure of to receive such copy shall not affect in any
way the service of such process. Each party 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
Noble US at its said address, such service to become effective
thirty (30) days after such mailing.
(d) Nothing herein shall affect the right of Deepwater,
RBFE, BTM or the Indenture Trustee, any Note Holder or any other
Person to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the
Manager in any other jurisdiction.
(e) Each party hereby (i) irrevocably and unconditionally
waives, to the fullest extent permitted by law, trial by jury in
any legal action or proceeding relating to this Agreement and for
any counterclaim therein; (ii) irrevocably waives, to the maximum
extent not prohibited by law, any right it may have to claim or
recover in any such litigation any special, exemplary, punitive
or consequential damages, or damages other than, or in addition
to, actual damages; (iii) certifies that no party hereto nor any
representative or agent of counsel for any party hereto has
represented, expressly or otherwise, or implied that such party
would not, in the event of litigation, seek to enforce the
foregoing waivers, and (iv) acknowledges that it has been induced
to enter into this Agreement, and the transactions contemplated
hereby and thereby by, among other things, the waivers and
certifications contained in this section.
SECTION 8.5 Third Party Beneficiaries. The Indenture
Trustee, each of the Note Holders under the Trust Indenture, and
each Credit Support Party is an intended third party beneficiary
of this Agreement. The Indenture Trustee shall have the right,
but not the obligation, in its sole judgment and discretion, from
time to time, but subject to the terms of this Agreement, to make
demand for performance and to proceed against the Manager for the
performance of any of its obligations hereunder, and/or to
proceed from time to time against RBFE or Deepwater for the
performance of any such obligations, as the Indenture Trustee, in
its sole discretion, may determine. Should there be any
conflicting direction or demand under this Agreement between
RBFE, BTM, Deepwater and the Indenture Trustee, the direction and
demands of the Indenture Trustee shall control under this
Agreement so long as the Trust Indenture is in force and effect.
SECTION 8.6 Counterparts. This Agreement may be executed
in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and
the same agreement.
SECTION 8.7 Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 8.8 Headings and Table of Contents. The headings
and table of contents contained in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
SECTION 8.9 Non-Petition Covenant. So long as any
indebtedness or other obligations secured by the Trust Indenture
are outstanding, the Manager will not institute, and will not
join with others in instituting, any involuntary bankruptcy or
analogous proceeding against RBFE, Deepwater or BTM under any
bankruptcy, reorganization, receivership or similar law, domestic
or foreign, as now or hereafter in effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written (the "Effective Date").
RBF EXPLORATION CO.
By:_________________________
Name:
Title:
R&B FALCON CORPORATION
By:_________________________
Name:
Title:
R&B FALCON DEEPWATER (UK) LIMITED
By:_________________________
Name:
Title:
BTM CAPITAL CORPORATION
By:_________________________
Name:
Title:
