CONFORMED COPY
Date 8 December, 1998
XXXXXXX AND XXXXX SHIPBUILDING
AND HEAVY INDUSTRIES LIMITED
- and -
GLOBAL MARINE INTERNATIONAL
DRILLING CORPORATION
- and -
GLOBAL MARINE LEASING CORPORATION
- and -
GLOBAL MARINE INC.
GM NOVATION AGREEMENT
relating to Shipbuilding Contract
dated 27 February, 1998 for the
construction of deepwater
drillship Hull No.1739
INDEX
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
2 NOVATION 2
3 MISCELLANEOUS 3
4 LAW 4
EXECUTION
THIS GM NOVATION AGREEMENT is made on 8 December, 1998
BETWEEN:
(1) XXXXXXX AND XXXXX SHIPBUILDING AND HEAVY INDUSTRIES LIMITED,
a company incorporated under the laws of Northern Ireland having its
registered office at Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx Xxxxxxx, XX0 0XX
(the "Builder");
(2) GLOBAL MARINE INTERNATIONAL DRILLING COMPANY (formerly named Global
Marine International Services Corporation), a corporation incorporated under
the laws of The Bahamas having its registered office at c/o McKinney,
Xxxxxxxx & Xxxxxx, Xxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, PO Box No. 3937, Nassau,
Bahamas ("GMIDC");
(3) GLOBAL MARINE LEASING CORPORATION, a corporation incorporated under
the laws of The Bahamas having its registered office at x/x XxXxxxxx, Xxxxxxxx
& Xxxxxx, Xxxxxx House, 4 Xxxxxx Street, PO Box No. 3937, Nassau, Bahamas
("GMLC"); and
(4) GLOBAL MARINE INC., a corporation incorporated under the laws of
Delaware, having an office at 000 X. Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000,
XXX ("GMI").
WHEREAS:
(A) GMIDC and the Builder have entered into the Old Contract (as defined
below) for the construction, completion and delivery by the Builder and
delivery to GMIDC of a deepwater drillship, identified by the Builder
as Hull No. 1739.
(B) GMIDC and GMLC have agreed that GMLC will assume all the rights and
obligations of GMIDC under the Old Contract and the Builder is willing
to and agree to the substitution of GMLC in place of GMIDC in relation
to such rights and obligations, to the release of GMIDC in respect
thereof so as to bring into existence the New Contract (as defined
below) between the Builder and GMLC, all subject to and upon the terms
and conditions of this Agreement; and
(C) GMI, GMIDC and GMLC have agreed that, in consideration of the
arrangements referred to above, GMLC will assume certain obligations of
GMIDC to GMI, and GMIDC will be released from such obligations.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, words and
expressions defined in the Old Contract or the New Contract shall have
the meanings given to them therein when used herein, and the following
words and expressions shall have the following meaning:
"Dollars" and "$" means the lawful currency of the United States of
America;
"Existing Work" means that Work, if any, in respect of which, in
accordance with the New Contract, title has passed to GMIDC on or
before time at which this Agreement takes effect in accordance with
Clause 2.1;
"New Contract" means the Old Contract as it is to be novated to GMLC
by, and subject to and in accordance with the terms and conditions of,
this Agreement;
"Novated Obligations" means all the obligations and liabilities of
"Owner" expressed to be imposed under, or otherwise arising under, out
of or in connection with, the Old Contract, as such obligations and
liabilities are to be novated subject to and in accordance with the
terms and conditions of this Agreement (which obligations and
liabilities shall, for the avoidance of doubt, include obligations and
liabilities arising under the Old Contract on or before the date hereof
which have not been performed or discharged on the date hereof including
obligations and liabilities in respect of amounts invoiced by the
Builder but not paid);
"Novated Rights" means all the rights and claims of "Owner" expressed
to be granted under, or otherwise arising under, out of or in connection
with, the Old Contract, as such rights and claims are to be novated
subject to and in accordance with the terms and conditions of this
Agreement (which rights and claims shall, for the avoidance of doubt,
include rights and claims in respect of obligations and liabilities of
the Builder arising under the Old Contract before the date hereof);
"Old Contract" means the contract dated 27 February, 1998 between
GMIDC and the Builder first referred to in Recital (A) above, including
all schedules thereto, as amended, varied and supplemented prior to
the date hereof.
1.2 References in this Agreement to Clauses or Appendices are, unless
otherwise specified, references to clauses of, and appendices to, this
Agreement.
1.3 References to "person" or "persons" or to words importing persons
include, without limitation, individuals, firms, corporations,
government agencies, committees, departments, authorities and other
bodies, incorporated or unincorporated, whether having distinct legal
personality or not.
1.4 Clause headings are for ease of reference only.
2 NOVATION
2.1 Immediately prior to the Effective Time (as defined in a novation
agreement of even date herewith and made between the Builder, GMLC,
GMIDC and Nelstar Leasing Company Limited) it is agreed that the
following shall, and hereby does, take place:
(a) GMIDC releases and discharges the Builder from all obligations,
liabilities, claims and demands under the Old Contract;
(b) the Builder releases and discharges GMIDC from all obligations,
liabilities, claims and demands under the Old Contract;
(c) GMLC has the benefit of the Novated Rights to the exclusion of GMIDC
and the Builder assumes towards GMLC all obligations and liabilities
corresponding to the Novated Rights;
(d) GMLC assumes the Novated Obligations and the Builder has the benefit
of all rights and claims corresponding to the Novated Obligations;
(e) GMIDC passes to GMLC such title to the Existing Work and the Vessel as
it is constructed as it has obtained from the Builder, and GMLC accepts
such title in accordance with Clause 9.1(e) of the New Contract,
such that the Old Contract shall cease to have effect as between the
Builder and GMIDC and shall be novated so as to bring the New Contract
into effect between the Builder and GMLC.
2.2 The Builder acknowledges that all obligations and liabilities of GMIDC
under the Old Contract which have been performed or discharged by GMIDC
shall, to that extent, be treated by the Builder for the purposes of
the New Contract as having been performed or discharged by GMLC.
2.3 Except as otherwise expressly provided in this Agreement, nothing in
this Agreement or the New Contract shall subject the Builder to any
liability to which it would not otherwise be subject under the Old
Contract or diminish in any way any rights or remedies to which the
Builder would otherwise be entitled under the Old Contract or modify
in any respect the Builders contractual rights and obligations
thereunder.
2.4 The Builder hereby acknowledges and agrees with GMLC that, if the
Builder is in breach of its obligations under the Old Contract, GMIDCs
entitlement to damages shall be preserved and vest in GMLC. If the
Builder is in breach of its obligations under the Old Contract or New
Contract the measure of damages shall be that which would have been
payable to GMIDC under the Old Contract if this Agreement had not been
entered into; provided that the Builder shall not be liable to pay an
aggregate amount under Clauses 17 or 25 of the New Contract in excess
of the amount which the Builder would have been liable to pay under
Clauses 17 and 25 of the Old Contract as if this Agreement had not
been entered into.
2.5 Immediately following the novation referred to at clause 2.1 above, all
references in the New Contract to Owner shall be construed as
references to GMLC rather than GMIDC, provided that:
(a) in Clause 1.1.28 the first reference to Owner shall mean the
Old Owner and the second reference to Owner shall mean the Old
Owner before the time at which the novation contained in Clause 2
of this Agreement takes effect, and the New Owner thereafter;
(b) in Clause 3.2 the reference to Owner in the second line of
sub-clause (a) shall mean the Old Owner; and
(c) in Clause 3.5, the reference to Owner shall mean the Old Owner
(so that, for the avoidance of doubt, the applicable Builders
Working Drawings and other applicable rights referred to in that
Clause shall be and remain the property of the Old Owner and not
the New Owner).
2.6 For the avoidance of doubt, all rights and obligations of GMIDC in
respect of OFE shall remain with GMIDC, and no title to any OFE shall
pass to GMLC under this Agreement.
2.7 In consideration of the novation contained in Clause 2.1 above, GMLC
shall, and hereby does, assume, with effect immediately following such
novation, the obligation of GMIDC to repay to GMI outstanding
indebtedness under certain intra-group arrangements in the amount of
US$123,687,203.74 and GMIDC shall be, and hereby is, released
by GMI from such obligations.
3 MISCELLANEOUS
3.1 This Agreement may be executed in several counterparts and any single
counterpart or set of counterparts signed, in either case, by all of
the parties thereto shall be deemed to be an original, and all
counterparts when taken together shall constitute one and the same
instrument.
3.2 This Agreement may be amended only by an instrument in writing signed
by all of the parties hereto.
3.3 Any waiver of any right, power or privilege by any party hereto shall
be in writing signed by such party. No failure or delay by any party
hereto to exercise any right, power or privilege under this Agreement
shall operate as a waiver thereof nor shall any single or partial
exercise of such right, power or privilege preclude any further exercise
thereof or of any other right, power or privilege.
4 LAW
4.1 This Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of
England and Wales.
4.2 Each of the parties hereto submits to the jurisdiction of the courts of
England with respect to this Agreement.
SIGNED by the representatives of the parties.
___________________________________________
X.X. XXXX, Attorney-in-Fact
Duly authorised for and on behalf of for H&W
XXXXXXX AND XXXXX SHIPBUILDING
AND HEAVY INDUSTRIES LIMITED
___________________________________________
W.A. XXXXX
Duly authorised for and on behalf of
GLOBAL MARINE INTERNATIONAL
DRILLING CORPORATION
_________________________________________
W.A. XXXXX
Duly authorised for and on behalf of
GLOBAL MARINE LEASING CORPORATION
_________________________________________
X. XXXXX
Duly authorised for and on behalf of
GLOBAL MARINE INC.
