EXHIBIT 10.246
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
This First Amendment to Note Purchase Agreement (this "First
Amendment") is made and entered into as of this 1st day of February, 2000
between RBF EXPLORATION CO., a Nevada corporation (the "Company") and the
PURCHASER which is a signatory hereto (the "Purchaser").
In consideration of the mutual covenants and agreements herein
contained and subject to the satisfaction of the conditions set out in
Article 3 below, the Purchaser and the Company agree that the Note Purchase
Agreement, as hereinafter defined, pursuant to Section 9.1 thereof (with
the consent of Chase Bank of Texas, National Association, as Trustee,
Travelers Casualty and Surety Company of America, a Connecticut
corporation, and American Home Assurance Company, a New York corporation),
is hereby amended as follows:
ARTICLE 1
Section 1.01 Specific Terms Defined . As used in this First
Amendment, the term "Note Purchase Agreement" shall mean the Note Purchase
Agreement (Deepwater Nautilus) dated as of August 12, 1999 among the
Company and the Purchaser, as the same may from time to time be further
amended, modified or supplemented, and the term "Transaction Documents"
shall have the meaning set forth in the Supplemental Indenture.
Section 1.02 Other Terms Defined . Capitalized terms used, but not
defined, in this First Amendment shall have the same meaning as set forth
in the Note Purchase Agreement.
Section 1.03 Amended Definitions. The following definitions
contained in Schedule B of the Note Purchase Agreement are hereby amended
and restated in its entirety to read as follows:
"First Preferred Ship Mortgage" means the First Naval Mortgage of the
Drilling Rig, in the form of Exhibit A to the First Amendment, to be dated
on the Rig Acceptance Date, from the Independent Owner to the Trustee.
"Rig Acceptance Date" means the date the Drilling Rig is accepted for
delivery by the Independent Owner pursuant to the Construction Contract.
Section 1.04 Deleted Definitions. The following definition is
deleted from Schedule B of the Note Purchase Agreement:
"Majority Holders" shall have the meaning set forth in the Trust
Indenture.
Section 1.05 New Definitions . The following definitions are added
to Schedule B of the Note Purchase Agreement:
"First Amendment" means the First Amendment to Note Purchase Agreement
between the Company and the Purchaser thereto dated as of February 1, 2000.
"Independent Owner" shall have the meaning set forth in the
Supplemental Indenture.
"Supplemental Indenture" means the Supplemental Indenture and
Amendment dated as of February 1, 2000 among the Company, the Independent
Owner and the Trustee.
ARTICLE 2
Section 2.01 Representations and Warranties. Section 5.25(b) of the
Note Purchase Agreement is hereby deleted in its entirety and replaced with
the following Section 5.25(b):
"On the Rig Acceptance Date, (a) the Drilling Rig will
be provisionally registered in the name of the Independent Owner
under the laws of the Republic of Panama, and no other filing,
recordation or registration of any other document or instrument
will be necessary in order to establish the Independent Owner's
good and valid title to the Drilling Rig; provided that, within
six months of the Rig Acceptance Date, title to the Drilling Rig
must be permanently registered in the Public Registry Office of
the Republic of Panama and (b) all filings necessary or desirable
to perfect the first Lien and security interest of the Trustee
under the Trust Indenture and the First Preferred Ship Mortgage
in the Trust Estate as against creditors of and purchasers from
the Independent Owner will have been duly made, and the Trust
Indenture and the First Preferred Ship Mortgage will create valid
and perfected first priority liens and security interests in the
Trust Estate, effective as against creditors of and purchasers
from the Independent Owner, securing all obligations secured
thereby; provided that within six months of the Rig Acceptance
Date, such ship mortgage must be permanently registered at the
Public Registry Office of the Republic of Panama."
ARTICLE 3
Section 3.01 Conditions . This First Amendment shall be effective
as against the Purchaser upon receipt by the Trustee of the following
documents and the satisfaction of the other conditions provided in this
Section 3.01, each of which shall be reasonably satisfactory to the
Purchaser in form and substance:
(A) Representations and Warranties.
The representations and warranties of each of the RBF Parties and
of the Independent Owner in Article 5 of the Note Purchase Agreement
(except for Sections 5.13 and 5.14 thereof) and the other Transaction
Documents are correct in all material respects and are true and
correct as if made on the date hereof.
(B) Performance; No Default .
Each of the RBF Parties and the Independent Owner shall have
performed and complied with and shall continue to be in compliance
with all agreements and conditions contained in this First Amendment,
the Supplemental Indenture, any other Transaction Documents, the Note
Purchase Agreement, the Trust Indenture and the other Project
Documents, as amended, required to be performed or complied with by
the date hereof and no Indenture Default or Indenture Event of Default
shall have occurred and be continuing.
(C) The Parent .
(i) The Transaction Documents shall have been executed by
all parties thereto and delivered to the Trustee, with a copy to
the Purchaser, each of which shall be in full force and effect.
(ii) The Parent shall have executed and delivered to the
Trustee, the Sureties and the Purchaser a letter certifying that
since June 30, 1999, there has been no change in the financial
condition, operations, business or properties of the Parent and
its Subsidiaries except changes that individually or in the
aggregate would not reasonably be expected to have a Material
Adverse Effect.
(D) Compliance Certificates .
(i) The Company shall have delivered to the Purchaser, the
Sureties and the Trustee an Officer's Certificate dated as of the
date hereof certifying that the conditions specified in this
Article 3 have been fulfilled.
(ii) The Parent shall have delivered to the Purchaser, the
Sureties and the Trustee an Officer's Certificate dated as of the
date hereof certifying that the conditions specified in this
Article 3 with respect to it have been fulfilled.
(iii) Each of the RBF Parties and the Independent Owner
shall have delivered to the Purchaser, the Sureties and the
Trustee (a) a certified copy of its certificate of incorporation
or articles of association, (b) a certificate of its secretary or
an assistant secretary certifying (1) the absence of any
amendments to its certificate of incorporation or articles of
association since the date of such certified copy, (2) its
bylaws, (3) the due adoption or approval by its board of
directors of resolutions attached to such certificate relating to
the transactions contemplated hereby and (4) the incumbency of
each of its officers who has executed any of the Project
Documents, and (c) a good standing certificate from its state of
incorporation.
(iv) The Trustee shall have delivered to the Purchaser a
certificate of its vice president, secretary or an assistant
secretary certifying (a) as to resolutions or other authority to
act as Trustee and (b) the incumbency of each of its officers who
has executed any of the Project Documents.
(E) Opinions of Counsel .
The Purchaser shall have received an opinion dated as of the date
hereof (i) from Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P., counsel for the
RBF Parties substantially in the form of Exhibit B hereto, (ii) from
Xxxxx, Fabrega & Fabrega, Panamanian counsel for the RBF Parties
substantially in the form of Exhibit C hereto, (iii) from the general
counsel and internal counsel for each of the Sureties substantially in
the form of Exhibit D hereto, (iv) from senior internal counsel for
the Independent Owner substantially in the form of Exhibit E hereto
and (v) from Xxxxx Xxxxxxxxxx, outside counsel to the Independent
Owner, in the form of Exhibit F hereto.
(F) Payment of Special Counsel Fees .
The Company shall have paid on or before the date hereof the
reasonable fees, charges and disbursements of special counsel to each
of the holders of the Class A1 Notes, Class A2 Notes, Credit Support
Parties and Trustees; provided that the holders of the Class A1 Notes
shall all use the same counsel, the holders of the Class A2 Notes
shall all use the same counsel, the Credit Support Parties shall all
use the same counsel and the Trustees shall use the same counsel, and
to the extent reflected in a statement of each such counsel rendered
to the Company at least one Business Day prior to the date hereof.
(G) Proceedings and Documents .
All corporate and other proceedings in connection with the
transactions contemplated by this First Amendment and all other
Transaction Documents and instruments incident to such Transaction
Documents shall be reasonably satisfactory to the Purchaser and the
Purchaser's special counsel, and the Purchaser and the Purchaser's
special counsel shall have received all such counterpart originals or
certified or other copies of such documents as the Purchaser or they
may reasonably request.
(H) Notes - Rating
Standard and Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc. ("S&P") shall have reaffirmed, giving effect to
the Transaction Documents, its AA rating of the Class A1 Notes, and
Duff & Xxxxxx Credit Rating Co. (together with S&P, the "Rating
Agencies") shall have reaffirmed, giving effect to the Transaction
Documents, its AA rating of the Class A1 Notes and its BBB+ rating of
the Class A2 Notes.
(I) Insurance
The Company shall have delivered to the Purchaser, the Sureties,
the Rating Agencies and the Trustee evidence of insurance as required
by the First Preferred Ship Mortgage and the Construction Supervisory
Agreement, as appropriate.
(J) Filing of Mortgage
The Company shall have delivered to the Purchaser, the Sureties,
the Rating Agencies and the Trustee confirmation certificates
evidencing the provisional filing of the First Preferred Ship Mortgage
with the Public Registry of the Republic of Panama.
(K) Documentation
The Company shall have delivered to the Purchaser, the Sureties,
the Rating Agencies and the Trustee evidence that the provisional
patente has been issued by the Republic of Panama documenting the
Drilling Rig in the name of the Independent Owner.
(L) Consent of Liquidity Providers
The Purchaser shall have received written consent from the
liquidity providers (to the extent such consent is required by the
Liquidity Documents) to the execution and delivery of this First
Amendment, any other document referred to herein or contemplated
hereby and any amendment, supplement or novation of any of the Project
Documents; with such consent to be in form and substance satisfactory
to the Purchasers and their counsel.
ARTICLE 4
Section 4.01 Amended Agreement . Except as specifically amended
above, the Note Purchase Agreement shall remain in full force and effect in
accordance with its terms following the effectiveness of this First
Amendment. The Company hereby ratifies and affirms its obligations and
continued liability under the Note Purchase Agreement, the Trust Indenture
and the Notes.
Section 4.02 Governing Law. THIS FIRST AMENDMENT (INCLUDING, BUT
NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
OTHER THAN CONFLICT OF LAWS RULES THEREOF THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
Section 4.03 Counterparts . The parties may sign any number of
copies of this First Amendment. Each signed copy shall be an original, but
all of such executed copies together shall represent the same agreement.
[signature pages follow]
IN WITNESS WHEREOF, the following parties hereto have caused this
First Amendment to be duly executed as of the date first above mentioned,
and by such execution, the Purchaser consents, to the extent required by
any of the Project Documents, to the amendment of such Project Document in
connection with this First Amendment.
COMPANY:
RBF EXPLORATION CO.
By:________________________
Name:
Title:
PURCHASER:
VICTORY RECEIVABLES CORPORATION
By:________________________
Name:
Title:
IN WITNESS WHEREOF, the following parties hereto have caused this
First Amendment to be duly executed as of the date first above mentioned,
and by such execution, the Purchaser consents, to the extent required by
any of the Project Documents, to the amendment of such Project Document in
connection with this First Amendment.
COMPANY:
RBF EXPLORATION CO.
By:________________________
Name:
Title:
PURCHASER:
ANCHOR NATIONAL LIFE INSURANCE COMPANY
By:________________________
Xxxxxxxxxxx X. Xxxx
Authorized Agent
IN WITNESS WHEREOF, the following parties hereto have caused this
First Amendment to be duly executed as of the date first above mentioned,
and by such execution, the Purchaser consents, to the extent required by
any of the Project Documents, to the amendment of such Project Document in
connection with this First Amendment.
COMPANY:
RBF EXPLORATION CO.
By:________________________
Name:
Title:
PURCHASER:
FIRST SUNAMERICA LIFE INSURANCE COMPANY
By:________________________
Xxxxxxxxxxx X. Xxxx
Authorized Agent
IN WITNESS WHEREOF, the following parties hereto have caused this
First Amendment to be duly executed as of the date first above mentioned,
and by such execution, the Purchaser consents, to the extent required by
any of the Project Documents, to the amendment of such Project Document in
connection with this First Amendment.
COMPANY:
RBF EXPLORATION CO.
By:________________________
Name:
Title:
PURCHASER:
PARTHENON RECEIVABLES FUNDING, LLC
By: Parthenon Receivables Funding
Corporation, its sole member
By:________________________
Name:
Title:
