EXHIBIT 10.3
Execution Copy
OPERATION AND MAINTENANCE AGREEMENT
This OPERATION AND MAINTENANCE AGREEMENT (this "Agreement") is
executed as of August 12, 1999 (the "Effective Date"), by and between
R&B Falcon Corporation, a Delaware corporation ("Manager") and RBF
Exploration Co., a Nevada corporation ("Owner").
WHEREAS, under that certain Offshore Daywork Drilling Contract
between Shell Deepwater Development Inc. ("SDDI") and Owner dated
effective August 12, 1998 (as from time to time hereafter amended or
modified as permitted by the Trust Indenture, hereinafter defined,
the "Shell Contract"), SDDI and Owner agreed to certain terms and
conditions for Owner's provision of certain drilling services
utilizing a certain semisubmersible drilling rig (being the 'Rig'
defined in the Shell Contract, hereinafter called the "Drilling Rig");
and
WHEREAS, Owner and Chase Bank of Texas, National Association
(together with its successors and assigns, the "Indenture Trustee")
have entered into a certain Trust Indenture and Security Agreement
dated August 12, 1999, (the "Trust Indenture") which provides for,
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
WHEREAS, in connection with the sale of the Notes, Owner has
entered into certain Note Purchase Agreements dated August 12, 1999,
(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
WHEREAS, the Owner desires to contract with Manager and, in
consideration of the purchase of the Notes pursuant to the Note
Purchase Agreements, the Note Holders have required that Manager enter
into this Agreement relating to the operation, maintenance and repair
of the Drilling Rig and certain other matters as set forth herein; and
WHEREAS, Manager by virtue of its indirect ownership of Owner
reasonably expects to benefit from Owner's performance of its
obligations under the SDDI Contract and the maintenance of the
Drilling Rig;
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, Manager covenants and agrees with
Owner 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:
"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 the Owner'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 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 (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.
"Services" -- has the meaning set out in Article II hereof.
ARTICLE II - SERVICES
SECTION 2.1 Services. Manager agrees to operate, maintain,
repair and take all other actions required or desired by a prudent
Manager and Owner 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 any and all of the
obligations and responsibilities of every nature whatsoever,
expressed or implied, to be performed by Owner 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, mobilization, demobilization,
maintenance, insurance, repair, provision of crew and drilling
services, invoicing SDDI in a timely manner and performance 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 the Owner 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 United States of America 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 the Owner 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 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 the Owner;
(e) to negotiate and enter into all contracts and arrangements to
provide services necessary to perform the Owner'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;
(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 the Owner 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;
(l) to provide all personnel required in order to perform the
Owner's obligations under the SDDI Contract , such personnel
to have the qualifications necessary to comply with the
Owner'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 the Owner 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,
the SDDI Contract, or any threatened or pending litigation
with respect to or which could cause a Material Adverse Effect
on the Owner, 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 the Owner including, without
limitation, the Drilling Rig, the operations conducted thereon
and other activities of the Owner 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
submit such plan to the Owner and the Indenture Trustee; and
(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 be moved to such location as SDDI so requires.
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 the Owner, SDDI
or any other party hereunder or pursuant to the SDDI Contract or
otherwise; (ii) any breach, default or misrepresentation by the Owner
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. 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 the Owner to pay compensation
pursuant to Article III below or any action, omission or breach on the
part of the Owner or Shell under this Agreement or the SDDI Contract
or any other agreement between said parties; the impossibility or
illegality of performance by the Contractor, the Owner 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 the Owner.
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 the Owner. The
Manager will provide the Owner with invoices and documentation in
sufficient detail to describe the direct expenses to be reimbursed.
To the extent it has cash available therefor, the Owner 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. The Owner 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 to the extent the Owner has cash available therefor.
ARTICLE IV - TERM
SECTION 4.1 Term. The term of this Agreement shall begin on the
Effective Date hereof 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.
ARTICLE V - REPRESENTATION AND WARRANTIES
The Manager represents and warrants to Owner 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 (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 Owner, 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 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 the operation and maintenance of the Drilling Rig, (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 by the Owner.
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 Owner 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) an Owner 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 day rate under and
pursuant to the SDDI Contract.
SECTION 6.2 Remedies.
(a) If an Event of Default shall have occurred and be
continuing, Owner 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
Owner and/or the Indenture Trustee shall be entitled to, and the
Manager shall pay as liquidated damages to the Indenture Trustee for
the account of the Owner on 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 the Owner 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 on 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 by Owner and/or Indenture Trustee as a result of an SDDI
Event. Accordingly, it is understood and agreed by the Parties that
(i) Owner 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, the Owner
shall be entitled to any and all other damages that Owner 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 the Owner and, provided the Indenture
Trustee has any further interest under the Trust Indenture, the
Indenture Trustee. If such employment is found, the Owner shall pay
to the Manager any amounts received by it as a result of such
employment until the earlier to occur of:
(i) an amount equal to that paid by the Manager to the
Indenture Trustee for the account of the Owner 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 the Owner, 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 the Owner 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 the
Owner as set forth in Section 3.1 hereof, and shall in no event 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 the Owner
hereunder, the insolvency, bankruptcy, reorganization, dissolution or
liquidation of the Owner, any change in ownership of the Owner 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 Owner's and Indenture Trustee's Right to Cure Event
of Default. Owner 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 Owner or the
Indenture Trustee, shall be paid by the Manager to the Owner or the
Indenture Trustee, as appropriate, on demand.
ARTICLE VII - INDEMNIFICATION
SECTION 7.1 The Manager agrees to pay all reasonable expenses of
the Owner, the Indenture Trustee and the Note Holders (including
advice of external counsel as to the rights and duties of the Owner,
the Indenture Trustee and the Note Holders 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 the Owner, the Indenture Trustee and the Note
Holders) and the reasonable fees and disbursements of external counsel
and other outside consultants; and promptly reimburse the Owner, the
Indenture Trustee and the Note Holders for all amounts expended,
advanced or incurred by any of them to satisfy any obligation of the
Manager hereunder.
SECTION 7.2 The Manager agrees to indemnify the Owner, the Indenture
Trustee and each Note Holder, 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, the 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, or (c) 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, including,
without limitation, the reasonable fees and disbursements of external
counsel and all other expenses incurred in connection 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.
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, Owner 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, the Owner 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 during the period after which such
Person, its successors or assigns shall have obtained actual possession of
such Property to the exclusion of the Owner 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 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 or
any Note Holder, 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 the Owner 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 expiration or earlier termination of this Agreement. 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 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 7.6 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 affirmative
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 Owner:
RBF Exploration Co.
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
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 either 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 and the Owner to such
assignment or other transfer, which consent may be withheld,
conditioned or delayed. The Owner 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 the
Owner 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 the Owner
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 the Manager and the Owner and
consented to in writing by the Indenture Trustee. No waiver of any
provision of this Agreement shall be effective unless signed by the
Owner 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 of the Manager and
the Owner 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 of the Manager and the Owner 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 of the Manager and the Owner 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 understood that a copy of
such process served on such agent will be promptly forwarded by overnight
courier to the Manager and the Owner 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 of the Manager and the Owner 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 the Owner 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) The Manager and the Owner each 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 the Owner for the performance of any such obligations, as the
Indenture Trustee, in its sole discretion, may determine.
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 the Owner under any bankruptcy, reorganization, receivership
or similar law, domestic or foreign, as now or hereafter in effect.
[remainder of page intentionally left blank]
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:
