EXHIBIT 10.251
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RBF EXPLORATION CO.
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$200,000,000 SENIOR SECURED CLASS A1 NOTES
$50,000,000 SENIOR SECURED CLASS A2 NOTES
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SUPPLEMENTAL INDENTURE
AND AMENDMENT
DATED AS OF February 1, 0000
XXXXX XXXX XX XXXXX, NATIONAL ASSOCIATION
Trustee
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This SUPPLEMENTAL INDENTURE AND AMENDMENT, dated as of February 1,
2000, is among RBF Exploration Co., a Nevada corporation (the "Issuer"),
BTM Capital Corporation, a Delaware corporation (the "Independent Owner")
and Chase Bank of Texas, National Association, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Issuer and the Trustee entered into a Trust Indenture and
Security Agreement, dated as of August 12, 1999 (the "Indenture"), pursuant
to which the Issuer has originally issued $200,000,000 in principal amount
of Senior Secured Class A1 Notes and $50,000,000 in principal amount of
Senior Secured Class A2 Notes (collectively, the "Notes") to the Note
Holders (as defined in the Indenture); and
WHEREAS, Section 13.8 of the Indenture provides that the Issuer and
the Trustee may amend or supplement the Indenture subject to the provisions
of Article 11 thereof; and
WHEREAS, the Issuer and the Independent Owner contemporaneously with
the execution hereof have entered into that certain Equipment Sale and
Funding Agreement of even date herewith (the "Sale and Funding Agreement")
pursuant to which Issuer conveyed certain property and equipment to the
Independent Owner and entered into related financing arrangements; and
WHEREAS, the Issuer, Hyundai Corporation and Hyundai Heavy Industries
Co., Ltd. (collectively "Hyundai") entered into that certain Contract for
Construction and Sale of Vessel (Hull No. HRBS6) (and also described by the
Issuer as RBS-8M and to be named the Deepwater Nautilus) dated November 14,
1997 (the "Construction Contract"), and whereas the Issuer, the Independent
Owner and Hyundai contemporaneously with the execution hereof have entered
into that certain Novation Agreement (the "Novation Agreement") of even
date herewith (the Construction Contract, as modified by such Novation
Agreement, being referred to as the "New Construction Contract"); and
WHEREAS, the Issuer and RBF Exploration II Inc., a Nevada corporation
("RBF II") entered into that certain Construction Supervisory Agreement
dated as of August 12, 1999 (the "Construction Supervisory Agreement"), and
whereas the Independent Owner, Issuer and RBF II contemporaneously with the
execution hereof have entered into that certain Construction Supervisory
Agreement of even date herewith (the "New Construction Supervisory
Agreement"); and
WHEREAS, R&B Falcon Corporation, a Delaware corporation ("Parent")
entered into that certain Performance Guarantee in favor of the Issuer, the
Sureties and the Trustee dated as of August 12, 1999 (the "Performance
Guarantee") and whereas contemporaneously with the execution hereof the
Parent has entered into that certain Performance Guarantee in favor of the
Issuer, the Independent Owner, the Sureties and the Trustee of even date
herewith (the "New Performance Guarantee"); and
WHEREAS, RBF II, Travelers Casualty and Surety Company of America and
American Home Assurance Company (both, the "Sureties") entered into that
certain Performance Bond dated August 18, 1999 (the "Original Performance
Bond"), and whereas in replacement of the Original Performance Bond, the
Independent Owner, RBF II, Trustee, Issuer and the Sureties have entered
into a new Performance Bond dated February 1, 2000 (the "New Performance
Bond"); and
WHEREAS, the Issuer entered into that certain Note Purchase Agreement
with the purchasers of notes identified therein dated as of August 12,
1999, and whereas contemporaneously with the execution hereof the Issuer
has entered into certain First Amendment to Note Purchase Agreements of
even date herewith (the "Amendment to Note Purchase Agreements"); and
WHEREAS, pursuant to Section 11.2 of the Indenture, the Note Holders
and the Sureties (as defined in the Indenture) have consented to the
Trustee entering into this Supplemental Indenture; and
WHEREAS, the Issuer and the Trustee now desire to amend and supplement
the Indenture to consent to and provide for the transactions above
described and to allow for and make the Independent Owner a party thereto;
NOW, THEREFORE, to comply with the provisions of the Indenture and in
consideration of the above premises, the Issuer, the Independent Owner and
the Trustee covenant and agree for the equal and proportionate benefit of
the respective Note Holders as follows:
ARTICLE 1
GENERAL
Section 1.01. This Supplemental Indenture is supplemental to the
Indenture and does and shall be deemed to form a part of, and shall be
construed in connection with and as part of, the Indenture for any and all
purposes. From this date, in accordance with Section 13.8 and Article 11
of the Indenture, and by executing this Supplemental Indenture, the parties
whose signatures appear below are subject to all of the provisions of the
Indenture and this Supplemental Indenture.
Section 1.02. This Supplemental Indenture shall become effective
immediately upon its execution and delivery by each of the Issuer, the
Independent Owner and the Trustee.
Section 1.03. Capitalized terms not otherwise defined herein shall
have the respective meaning ascribed thereto in the Indenture.
ARTICLE 2
TRUSTEE CONSENTS
Section 2.01. In accordance with the requirements of Section 8.3(c)
of the Indenture and with the consent of the Required Holders, the Trustee
hereby consents to the novation and replacement of the Construction
Contract with the New Construction Contract under the Indenture. As of the
date hereof, the Construction Contract, as defined in the Indenture, shall
be the New Construction Contract and the definition of Construction
Contract under the Indenture shall be replaced in its entirety with the
definition of New Construction Contract as defined above.
Section 2.02. In accordance with the requirements of Section
8.3(f)(ii) of the Indenture and at the direction of the Required Holders,
the Trustee hereby consents to the novation and replacement of (a) the
Construction Supervisory Agreement with the New Construction Supervisory
Agreement, (b) the Performance Guarantee with the New Performance Guarantee
and (c) the Performance Bond with the New Performance Bond. As of the date
hereof, the Construction Supervisory Agreement, Performance Guarantee and
Performance Bond, as defined in the Indenture, shall be respectively the
New Construction Supervisory Agreement, the New Performance Guarantee and
New Performance Bond and the definition of Construction Supervisory
Agreement, Performance Guarantee and Performance Bond under the Indenture
shall be replaced in their entirety with the definition of New Construction
Supervisory Agreement, New Performance Guarantee and New Performance Bond
as defined above respectively.
Section 2.03. The Trustee does hereby
(a) release the security interest and lien granted by the Issuer
under the Indenture upon the Equipment (as defined in the Sale and
Funding Agreement) in consideration for this simultaneous grant by the
Independent Owner pursuant to Article 3 hereof of a security interest
and lien upon the same Equipment, provided that this clause (a) does
not constitute a release of the security interest and lien granted by
the Issuer under the Indenture upon any other part of the Trust
Estate;
(b) consent to the execution and delivery of the Sale and
Funding Agreement and the Amendment to Note Purchase Agreements; and
(c) consent to the exercise by the Independent Owner of its
rights under clause 10 (Put Option) of the Sale and Funding Agreement
(the "Put Option") to sell the Drilling Rig and Equipment, subject to
the security interest granted by the Independent Owner in favor of the
Indenture Trustee in Article 3 hereof and the First Preferred Ship
Mortgage granted by the Independent Owner in favor of the Indenture
Trustee and the terms and conditions of such section; provided that at
the time of such transfer, the Trustee is furnished with the
following, in form and substance satisfactory to the Trustee and the
Rating Agencies:
(i) an assumption of the First Preferred Ship Mortgage or the
execution and delivery of a new mortgage executed by the
purchaser under the Put Option in substantially the same
form as the First Preferred Ship Mortgage,
(ii) (x) an amendment to the Indenture pursuant to which the
purchaser under the Put Option grants to the Trustee a
security interest in the Equipment on substantially the
same terms as the security interest granted under the
Indenture on the date hereof together with appropriate
financing statements to properly perfect such security
interest and (y) if at the time of such transfer, the New
Performance Bond is still outstanding, a substitute
Performance Bond in substantially the same form as the New
Performance Bond;
(iii) appropriate UCC searches establishing that the security
interest granted under (ii) above is first priority,
(iv) opinions of counsel for the Issuer and, as appropriate,
the Sureties, satisfactory to the Trustee and the Rating
Agencies with respect to the documents provided under
clauses (i) and (ii) above in substantially the same form
as the opinions delivered by Gardere, Wynne, Xxxxxx &
Xxxxx L.L.P., Xxxxx, Xxxxxxx & Xxxxxxx and the Sureties'
counsel pursuant to Section 3.01(E) of the Amendment to
Note Purchase Agreements, and
(v) a certificate or certificates from appropriate insurance
brokers that all required insurance remains in full force
and effect with the purchaser under the Put Option as the
new owner of the Drilling Rig and Equipment.
Section 2.04. The Trustee hereby consents, to the extent required by
the Indenture, to the execution and delivery of any other documents
incidental to or required by the documents described in Sections 2.01, 2.02
and 2.03 hereof (all of such documents including, without limitation, the
documents described in Sections 2.01, 2.02 and 2.03 hereof and any Project
Document, together with this Supplemental Indenture, in each case as any of
the foregoing items may be amended, supplemented or modified from time to
time , the "Transaction Documents").
ARTICLE 3
INDEPENDENT OWNER SECURITY INTEREST
Section 3.01. To secure the prompt and complete payment of the
principal of, and interest and any applicable Make-Whole Amount on, all of
the Notes issued and delivered and Outstanding, the payment of all other
sums owing under the Indenture and under all other Project Documents (the
"Project Indebtedness") and the performance of the covenants contained in
the Indenture and in all other Project Documents, and in consideration of
the premises and of the covenants contained herein and the sum of One
Dollar ($1.00) paid by the Trustee to the Independent Owner at or before
the delivery hereof, the receipt and sufficiency whereof are hereby
acknowledged, the Independent Owner has hereby granted, bargained, sold,
conveyed, assigned, transferred, mortgaged, affected, pledged, set over,
confirmed, granted a continuing security interest in, and hypothecated and
does hereby grant, bargain, sell, convey, assign, transfer, mortgage,
affect, pledge, set over, confirm, grant a continuing security interest to
the Trustee and to any co-trustee or separate trustee hereafter acting
pursuant to the Indenture, and to their respective successors and assigns
in trust forever (subject to Section 12.1 of the Indenture), all of its
right, title and interest in, to and under the following described
Properties whether now owned, existing or hereafter acquired or arising
(all of such Properties, including without limitation all properties
hereafter specifically subjected to the liens of the Indenture by any
indenture supplemental thereto to which the Independent Owner has consented
in writing, being hereinafter collectively referred to as the "Additional
Trust Estate"):
(a) the Equipment and the Drilling Rig;
(b) all payments under and all accounts and General Intangibles
generated from or arising out of the New Construction Contract, the
New Construction Supervisory Agreement, the New Performance Guarantee,
the Operation and Maintenance Agreement, the Sale and Funding
Agreement and the New Performance Bond together with any amendments or
modifications to any of the foregoing, excluding the rights of the
Independent Owner and any other BTM Indemnitee to be indemnified as
provided under Article VII of the New Construction Supervisory
Agreement and to the extent it stands behind such indemnity, the New
Performance Guarantee (provided such exclusion does not impair the
rights of the Trustee or other parties now or hereafter entitled to
the benefits of such indemnity and the New Performance Guarantee), and
the right of the Independent Owner to exercise the Put Option as
provided by Section 2.03(c) above (provided the grant of this security
interest shall not prevent the Independent Owner from enforcing the
obligations of the Construction Supervisor (and the corresponding
obligations under the New Performance Guarantee) under Section 2.5(x)
or (y) of the Construction Supervisory Agreement);
(c) any insurance proceeds (other than insurance proceeds
payable to the Independent Owner under liability policies for tort,
environmental and similar liabilities), condemnation proceeds and the
accounts, issues, profits, products, revenues and other income of and
from the Drilling Rig and/or the Equipment and all the estate, right,
title and interest of every nature whatsoever of the Independent Owner
in and to the same and every part thereof; and
(d) all proceeds and products of any of the foregoing.
This security interest is granted under and pursuant to the Indenture
and all of the Additional Trust Estate is and shall be considered a part of
the Collateral and the Trust Estate under and pursuant to the Indenture and
this Supplemental Indenture for all intents and purposes. Subject to the
provisions of Section 4.02 and Article 6 hereof, all of the terms and
conditions of the Indenture with respect to the Collateral and the Trust
Estate shall apply to the Additional Trust Estate. Specifically and in
this connection the provisions of Sections 7.4 through and including 7.12
apply to the Additional Trust Estate and, subject to the terms and
provisions of Article 6 hereof, the provisions of such Sections with
respect to the "Issuer" apply equally to the Independent Owner.
ARTICLE 4
INDEPENDENT OWNER COVENANTS
Section 4.01. Notwithstanding any of the foregoing consents or any
other terms hereof, the Independent Owner covenants and agrees that it will
not assign or transfer any of its rights or obligations under any of the
Transaction Documents and it will not assign or transfer the ownership of
any interest in the Property that is part of the Additional Trust Estate
(including, without limitation, any interest in the Drilling Rig) to any
other Person (including, without limitation, any transfer pursuant to
clause 8 or clause 10.3 of the Novation Agreement or clause 9 of the Sale
and Funding Agreement) without (i) the prior express written consent of the
Note Holders and (ii) prior written notice to each Rating Agency; provided,
however, the Independent Owner shall have the right, without consent of the
Note Holders or the Trustee, to exercise the Put Option as provided by
Section 2.03(c) above.
Section 4.02. Subject to the terms and provisions of Article 6
hereof, the Independent Owner covenants and agrees that until payment is
made in full of all of the Notes and all other amounts payable by the
Issuer under the Indenture or secured thereby, the Independent Owner shall:
(a) comply with and perform the following:
A. The Independent Owner will promptly give the Trustee
and the Sureties notice of any litigation or proceeding
against or adversely affecting the Additional Trust
Estate or any part thereof (including, without
limitation, any attachment, arrest, levy or other
detention of the Drilling Rig) and of all claims,
judgments, Liens or other encumbrances affecting the
Additional Trust Estate if the aggregate value of such
claims, judgments, Liens or other encumbrances
affecting such Property shall exceed $1,000,000, of
which a Responsible Officer of the Independent Owner
has actual knowledge.
B. The Independent Owner will promptly notify the Trustee
in writing of any threatened action, investigation or
inquiry by any Governmental Authority of which a
Responsible Officer of the Independent Owner has actual
knowledge in connection with any Environmental Laws
with respect to the maintenance, use or operation of
the Drilling Rig, excluding routine testing,
inspections and corrective action.
C. Provided the Independent Owner is provided with notice,
documents and instruments as provided in Section
6.01(a)(A) hereof, the Independent Owner will execute
such documents and instruments as required to promptly
cure any defects in the creation, execution and
delivery of any of the Transaction Documents to which
it is a party and all such other documents, agreements
(including, without limitation, account control
agreements) and instruments to comply with or
accomplish the covenants and agreements of the Issuer
or the Independent Owner in the Transaction Documents
or to further evidence or more fully describe the
Additional Trust Estate or to correct any omissions in
the Transaction Documents, or to state more fully the
security obligations set out herein or in any of the
other Transaction Documents, or to perfect, protect or
preserve any Liens created pursuant hereto or any of
the other Transaction Documents, or to make any
recordings or obtain any consents as may be necessary
or appropriate in connection therewith. Further, upon
being furnished with notice, documents and instruments,
from time to time, as provided in Section 6.01(a)(A)
hereof, the Independent Owner will promptly execute and
deliver or cause to be executed or delivered all
further instruments and documents and take all further
action that may be necessary or desirable or that the
Trustee may request in order to (a) perfect and protect
the Liens and other rights created or purported to be
created hereby and by the other Transaction Documents
and the first priority of such Liens and other rights;
(b) enable the Trustee to exercise and enforce its
rights and remedies hereunder in respect of the
Collateral; or (c) otherwise effect the purposes of the
Indenture, including, without limitation: executing and
filing such supplements to the Indenture and such
financing or continuation statements (or amendments
thereto) as may be necessary or desirable or that the
Trustee may reasonably request in order to perfect and
preserve the Liens created or purported to be created
hereby or thereby; and
D. The Independent Owner will not create, incur or suffer
to exist any Owner Lien upon any of the Trust Estate.
E. In the event any of the Trust Estate becomes subject to
any Owner Lien, it will promptly, at its expense, cause
such Owner Lien or Owner Liens to be completely
released, discharged and removed. Further, in
connection herewith in the event a Responsible Officer
of the Independent Owner has actual knowledge of any
event or circumstance, including without limitation,
any circumstance involving any Plan sponsored,
maintained or contributed to by the Independent Owner
or any ERISA Affiliate thereof, including, without
limitation, any ERISA Event with respect to the
Independent Owner or any ERISA Affiliate thereof which
event or circumstance could reasonably be expected to
cause an Owner Lien to attach to any of the Trust
Estate, it will give prompt notice thereof to the
Trustee. In the event an Owner Lien attaches to any
part of the Trust Estate and such Lien is not removed
by the Independent Owner as required by this clause E,
within 5 Business Days following receipt by the
Independent Owner of notice thereof from the Issuer or
the Indenture Trustee, the Issuer and the Indenture
Trustee shall each have the right to take all necessary
action to cause such Owner Lien to be removed and the
Independent Owner shall promptly reimburse the Issuer
and/or Trustee for all costs and expenses incurred by
them in connection with such action.
F. Solely with respect to the Additional Trust Estate in-
cluding, without limitation, the Drilling Rig, the
Construction Contract, Refundment Guaranty, Construct-
ion Supervisory Agreement, Performance Guaranty and
Performance Bond, the Independent Owner will comply
with and perform the covenants of the Issuer as if
references to the Issuer were references to the
Independent Owner under Sections 9.5, 9.7 and 9.11 of
the Indenture. For this purpose, the term "Issuer" in
Sections 9.5, 9.7 and 9.11 shall be deemed to mean
"Independent Owner".
G. The Independent Owner will comply with and perform the
covenants of the Issuer under Sections 9.12, 9.18,
9.19 and 9.20 of the Indenture as if the references
therein to the "Issuer" were references to the
"Independent Owner".
H. The Independent Owner will comply with and perform the
covenants of the Issuer under Section 9.16 of the
Indenture as if references therein to the "Issuer" were
references to the "Independent Owner" except that the
Independent Owner shall not be required to notify the
Note Holders under such Section.
(b) enter into the Sale and Funding Agreement, the New
Construction Contract, the New Construction Supervisory Agreement, the
New Performance Guarantee and the New Performance Bond and shall not
agree to any amendments, modifications or waivers of the terms thereof
without express written consent of the Trustee;
(c) execute and deliver the First Preferred Ship Mortgage
immediately upon delivery of the Drilling Rig pursuant to the terms of
the New Construction Contract and, in this connection, RBFE will
present the Independent Owner with the First Preferred Ship Mortgage
document for execution.
Notwithstanding the foregoing, to the extent that any of the
covenants in this Section 4.02 requires the Independent Owner to
execute documents and instruments presented to it by the Issuer or the
Indenture Trustee (which documents or instruments by their nature
require the signature thereto of the owner of the Drilling Rig and/or
the Equipment and may not be signed, whether or not a power of
attorney has been granted by the owner of the Drilling Rig and/or the
Equipment, by the Issuer or any other person or entity on behalf of
the Independent Owner), the Independent Owner's obligation to execute
any such document or an instrument is conditional upon the Issuer, the
Construction Supervisor or the Indenture Trustee having given prior
notice in writing to the Independent Owner to execute the same,
accompanied by such document or instrument.
Section 4.03. The Independent Owner agrees that it will not take any
action (i) which it knows to be contrary to covenants and other terms and
provisions of the Indenture, the First Preferred Ship Mortgage or any other
Transaction Document or (ii) which it knows will inhibit the performance of
such covenants, terms and provisions by the Issuer or otherwise.
Section 4.04. Subject to the terms and provisions of Article 6
hereof, to the extent any action on the part of the Independent Owner is
required for the Issuer's compliance with any covenant or other term or
provision of the Indenture, First Preferred Ship Mortgage or any other
Transaction Document, the Independent Owner will take such action at the
direction of the Issuer or the Trustee and at the expense of the Issuer.
Section 4.05. Subject to Article 6 hereof, the Independent Owner
hereby assumes and agrees to pay as and when due the Project Indebtedness.
The Independent Owner agrees that any and all payments and other proceeds
paid or payable from or under the Additional Trust Estate shall be paid
into the Collection Account established under Section 4.3 of the Indenture
and applied as provided therein. Notwithstanding the foregoing, the Issuer
remains fully and completely liable to pay the Project Indebtedness as and
when due.
Section 4.06 The Independent Owner agrees that it will not,
otherwise than pursuant to its rights under the Transaction Documents or
which may exist under applicable law (and then subject to any restrictions
on the exercise of those rights under the Transaction Documents), and
except as may be required by law, interfere with the quiet use, possession
and quiet enjoyment of the Drilling Rig by SDDI, the Issuer or any of its
or their Affiliates.
ARTICLE 5
AMENDMENTS TO INDENTURE
Section 5.01. The Granting Clause of the Indenture is hereby amended
by deleting the last word "and" from clause (f), by deleting all of clause
(b) and clause (g) and by adding new clauses (b), (g) and (h) as follows:
"(b) All accounts, General Intangibles (including, without
limitation, the Construction Contract, the SDDI Contract, the
Construction Supervisory Agreement, the Operation and Maintenance
Agreement, the Performance Guarantee, the Refundment Guarantee, the
Sale and Funding Agreement and the Performance Bond), instruments,
chattel paper and documents, deposit accounts and investment property
(including, without limitation, all Permitted Investments) now owned
or hereafter acquired;
(g) Any and all security interests, express or implied by
operation of law, that the Issuer receives or is deemed to have,
securing the obligations of the Independent Owner under the Sale and
Funding Agreement and any and all other documents executed or assumed
by the Independent Owner in connection therewith (the "Independent
Owner Security"); and
(h) All proceeds and products of the foregoing."
Section 5.02. (a) Section 1.1 of the Indenture is hereby amended by
adding the following new definitions where alphabetically appropriate,
which read in their entirety as follows:
Equipment has the meaning set out in the Sale and Funding
Agreement and the term Equipment to include, without limitation, all
equipment, inventory, fixtures and other goods in all forms, whether
now or hereafter existing which are on or used in connection with the
Drilling Rig, and all parts thereof, all accessions thereto and all
replacements and substitutions therefor.
Independent Owner shall mean BTM Capital Corporation, and its
successors and permitted assigns, as owner of the Equipment,
Construction Contract and Drilling Rig.
Independent Owner Security has the meaning set out in clause (g)
of the Granting Clause hereof.
Owner Lien means any Lien on or with respect to the Additional
Trust Estate which is not permitted by the terms of the Transaction
Documents and which results from (i) nonpayment by Independent Owner
or any shareholder of Independent Owner or any Affiliate of any of the
foregoing (the "Owner Parties"), of any tax, assessment or like charge
imposed on any Owner Party, other than any tax, assessment or like
charge the payment of which is the obligation of Issuer or any
Affiliate of Issuer under this Supplemental Indenture or any other
Transaction Documents; (ii) claims against or acts and omissions of
any Owner Party arising out of events or conditions that are not
related to the transactions contemplated by the Transaction Documents
or are in violation of any of the obligations of Independent Owner
under any of the terms of the Transaction Documents; (iii) claims
against any Owner Party arising out of any transfer (whether voluntary
or involuntary) by such Owner Party of any portion of its interest in
the Additional Trust Estate or its rights under the Transaction
Documents that is neither permitted under the Transaction Documents
nor consented to in writing by the Trustee; or (iv) any other act of,
claim against or lien created by any Owner Party including, without
limitation, any lien attaching by reason of the Independent Owner's
participation in any Multiemployer Employee Benefit Plan, or any
Person claiming by, through or under any Owner Party, that is neither
permitted under the terms of the Transaction Documents nor consented
to in writing by the Indenture Trustee.
Sale and Funding Agreement has the meaning set out in the
Supplemental Indenture.
Supplemental Indenture shall mean that certain Supplemental
Indenture and Amendment dated as of February 1, 2000, executed by the
Issuer, the Independent Owner and the Trustee.
Transaction Documents has the meaning set out in the Supplemental
Indenture."
(b) The definition of "Note Purchase Agreement in Section 1.1 of
the Indenture is amended by the addition at the end of such definition
of the words "as amended by First Amendment to Note Purchase Agreement
dated February 1, 2000 and as the same may be further amended,
supplemented or modified from time to time."
(c) The definition of "Project Documents" in Section 1.1 of the
Indenture is amended by (i) the addition of the words "Sale and
Funding Agreement" after the phrase "(as defined in the Note Purchase
Agreement)," and (ii) the addition of the words "as any of such
Project Documents may be amended, supplemented or modified from time
to time" at the end of such definition.
(d) The definition of "Governmental Authority" is amended by
inserting the words ", Independent Owner" after the word "Parent" in
the last line thereof.
Section 5.03. Clauses (j) and (o) of Section 7.1 of the Indenture are
hereby amended to hereafter read in their entirety as follows:
" (j) Parent, SDDI, Royal Dutch Shell, RBF II, Independent
Owner (but only with respect to (d), (e) or (f)) or, prior to
satisfaction of the Operational Period Conditions Precedent, one of
the Sureties takes, suffers or permits to exist with respect to itself
any of the events or conditions of the type referred to in paragraphs
(d), (e), (f) or (i) hereof; or
(o) The Issuer or the Independent Owner, whichever is the
registered owner of the Drilling Rig, shall fail to execute, or, in
the case of the Issuer (or the Issuer on behalf of the Independent
Owner), deliver and permanently record the First Preferred Ship
Mortgage and the Issuer shall fail to deliver the opinion of Issuer's
counsel in the form of Annex E hereto upon delivery of the Drilling
Rig by Hyundai under the Construction Contract; or"
Section 5.04. The period at the end of clause (p) to Section 7.1 of
the Indenture is changed to "; or", and a new clause (q) is hereby added to
Section 7.1 of the Indenture to hereafter read as follows:
" (q) Any default occurs in the covenants or obligations of the
Independent Owner under the Supplemental Indenture or the First
Preferred Ship Mortgage or the Trustee receives a notice from the
Independent Owner pursuant to the second sentence of Section
4.02(a)(E) of the Supplemental Indenture."
Section 5.05 The occurrence and existence of any Event of Default
hereunder or under any other Transaction Document by or on behalf of the
Independent Owner shall not prevent the Independent Owner from exercising
its Put Option under the Sale and Funding Agreement or limit, restrict or
condition its rights to the Put Option as permitted herein in any way
whatsoever subject in each case to compliance with Section 2.03(c) above.
Section 5.06. Section 8.3(d) of the Indenture is amended by deletion
of the words "United States of America" therein and replacing those words
with "Republic of Panama" and by deletion of the words "U.S. Coast Guard
National Vessel Documentation Center" and replacing those words with the
words "Public Registry of the Republic of Panama".
Section 5.07 A new Section 9.21 is hereby added to read as follows:
"9.21 Issuer Action Regarding Independent Owner Security.
The Issuer shall not take any action under the Independent Owner
Security without the written consent of the Trustee."
Section 5.08 Annex E to the Indenture is amended and replaced in its
entirety by Annex E hereto.
Section 5.09. Section 13.3 of the Indenture is amended by adding the
following notice provision following the mail address of the Trustee:
If to the Independent Owner:
If by mail:
BTM Capital Corporation
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Senior Vice President - Administration
ARTICLE 6
LIABILITY OF INDEPENDENT OWNER LIMITED
Section 6.01. Notwithstanding any of the other terms and provisions
hereof or under the Indenture, it is understood and agreed as follows:
(a) Without limitation of any other provision of this Section
6.01, and notwithstanding any provision of any Transaction Document to
which the Independent Owner is a party which may be to the contrary or
otherwise inconsistent herewith, all obligations and duties of the
Independent Owner under the Indenture (including, without limitation,
this Supplemental Indenture), the First Preferred Ship Mortgage, the
New Construction Contract, the New Construction Supervisory Agreement,
and all other Transaction Documents to which the Independent Owner is
a party, other than the Sale and Funding Agreement (all of which are
the "Assumed Obligations") shall, without releasing the Independent
Owner from its obligations and duties, be performed on behalf of the
Independent Owner by the Issuer (or an Affiliate of the Issuer,
designated from time to time by the Issuer) (in reference to the
Assumed Obligations, the "Assuming Party").
The Assumed Obligations shall include, without limitation, all
obligations with respect to the construction, maintenance, operation,
insurance, compliance with law, inspection, preservation, protection
and transfer or other disposition of the Drilling Rig and any
component or part thereof and any monetary obligations with respect to
any of the foregoing.
Notwithstanding the Assuming Party's obligation to perform the
Assumed Obligations, the Independent Owner shall be obligated to
itself perform the following:
(A) The execution and delivery with reasonable promptness
to the Assuming Party or the Trustee, at the sole cost and
expense of the Assuming Party, such documents and instruments as
the Assuming Party or the Trustee may reasonably request in order
for the Assuming Party to fully perform the Assumed Obligations
on behalf of the Independent Owner, provided that the Assuming
Party or the Trustee has provided the Independent Owner with at
least 10 Business Days prior notice of such request and the
documents and instruments or form of instruments to be so
executed, and provided further that the Independent Owner's
execution and delivery of the same, either alone or in connection
with any other action relating thereto to be taken by the
Assuming Party or another person or entity, will not have the
effect of increasing the liability of the Independent Owner.
(B) The making of the following payments to the Trustee, to
the extent Independent Owner has actually received funds with
respect thereto, for deposit into the Collection Account or such
other account as RBF Exploration Co. and the Trustee shall
jointly direct:
I. Payments which are part of or proceeds from the
Additional Trust Estate;
II. Payments made to the Independent Owner which the
Independent Owner and Trustee or the Independent Owner and
the Issuer and the Trustee jointly determine should,
instead, under one or more Transaction Documents, be made to
the Trustee or another entity designated jointly by the
Issuer and the Trustee; and
III. Such other payments as may be due and owing under
one or more of the Transaction Documents, but only from and
to the extent of such funds have been received by or as have
been made available to the Independent Owner for such
purpose by the Issuer or any other Person, provided that the
Independent Owner shall have no other responsibility with
respect to such payment or the monetary obligation to which
it relates, nor any obligation to reimburse the Assuming
Party in respect thereof, provided, however, nothing herein
shall limit or affect the enforceability of the liens and
security interests granted pursuant to Article 3 hereof and
granted or to be granted under the First Preferred Ship
Mortgage or any other Transaction Document.
(C) Performance of the covenants under Article 4 hereof and
Section 8.8 of the New Construction Supervisory Agreement.
(D) Taking such other actions as may reasonably be
requested by RBF Exploration Co. or the Indenture Trustee which
are not referred to above in this clause (a) but which meet all
of the following conditions: they are necessary to be performed
by the Independent Owner pursuant to the Transaction Documents,
by their nature they may not legally be delegated by the
Independent Owner to the Assuming Party, they are of a routine
and administrative nature, they do not involve substantial
additional undertakings by the Independent Owner, and they do not
involve costs as to which the Independent Owner is not secured to
its reasonable satisfaction.
(b) Neither the Trustee, any Note Holder nor any other party to
a Transaction Document nor any of their successors or assigns, shall
have any claim, remedy or right to proceed against the Independent
Owner for payment of any deficiency or any other sum owing on account
of the indebtedness evidenced by any Note or for the payment of any
other unpaid obligation hereunder or thereunder or for the payment of
any liability resulting from the breach of any representation,
covenant, agreement or warranty of any nature whatsoever in the
Indenture, this Supplemental Indenture or in any other Transaction
Document or in any instrument or certificate executed by the
Independent Owner in connection herewith or therewith, from any source
other than the Trust Estate including, without limitation, the
Drilling Rig and the income and proceeds (including, without
limitation, insurance and condemnation proceeds) thereof; and the
Issuer, the Trustee, each Note Holder and each other party to any
Transaction Document shall be entitled to look solely to the Trust
Estate including, without limitation, the Drilling Rig and the income
and proceeds (including, without limitation, insurance and
condemnation proceeds) thereof, and waive and release any personal
liability of the Independent Owner, for and on account of any such
deficiency, indebtedness, unpaid obligations or any such liability,
provided, however, that nothing herein contained shall limit, restrict
or impair the Indenture Trustee's or the Note Holders' right to
accelerate the maturity of the Notes upon an Indenture Event of
Default, to bring suit and obtain a judgment against the Independent
Owner provided execution thereof shall be limited to the Trust Estate
including, without limitation, the Drilling Rig and any income and
proceeds (including, without limitation, insurance and condemnation
proceeds) in respect thereof or to exercise all rights and remedies
provided under each Note or under the Transaction Documents or to
otherwise realize upon the Trust Estate, including, without
limitation, the Drilling Rig and provided further, nothing herein
shall limit the liability of the Independent Owner for the following:
1. To the extent that there has been an express judicial
determination of a court having jurisdiction over the
Independent Owner and the relevant subject matter, or the
Independent Owner has expressly admitted in writing, that
any resulting losses or damages have been caused by the
gross negligence or willful misconduct of the Independent
Owner or any other Owner Party such judgment being final
and being or having become subject to no further appeals
therefrom (provided that if such court is the U.S. District
Court for the Southern District of New York, a final
judgment of such court even though such judgment is subject
to appeal, it being understood that if such judgment is
reversed or vacated on such appeal, gross negligence or
willful misconduct shall be deemed not to have been adjudged
by such District Court).
2. breach of Section 4.02(a)(D) or (H) or any reimbursement
obligation under Section 4.02(E),
3. breach of Section 4.06,
4. failure of an Independent Owner representation under clause
(d) of this Section 6.01, or
5. default by the Independent Owner in its obligations to
execute and deliver any documents conveying or granting
interests in the Additional Trust Estate in accordance with
Sections 6.01 and 7.01 hereof or any other Transaction
Document.
(c) No party (other than the Independent Owner itself) to this
Supplemental Indenture or the other Transaction Documents to which the
Independent Owner is a party shall have any claim, remedy or right to
proceed against any incorporator or any past, present or future
subscriber to the capital stock of, or stockholder, officer or
director of, the Independent Owner (each such person being a
"Protected Person") with respect to any obligations under any of the
Transaction Documents, whether by virtue of any constitutional
provision, statute or rule of law or by enforcement of any penalty or
assessment or otherwise, in respect of any claim it might have against
the Independent Owner or in respect of any act or omission of a
Protected Person, and any such Protected Person may rely on this
Section 6.01(c) to that extent.
(d) The Independent Owner shall not be responsible for any
recitals in the Indenture, this Supplemental Indenture or any other
Transaction Document, nor shall it be bound to ascertain or inquire as
to the performance or observance of any covenants or agreements
contained herein or therein (other than those of the Independent
Owner), or for the satisfaction of any condition in any contract to
which it is not a party (including, without limitation, the SDDI
Contract). Except as expressly provided in this Supplemental
Indenture, the Independent Owner shall be under no obligation to take
any action to protect, preserve or enforce any rights with respect to
the Additional Trust Estate nor to take any action which may involve
pecuniary loss, liability or expense unless it shall have been
provided with reasonable security or indemnity reasonably satisfactory
to the Independent Owner against the same. The Independent Owner
makes no representation or warranty as to the sufficiency or
enforceability of the Indenture, this Supplemental Indenture or any
other Transaction Document (except that the Independent Owner
represents and warrants that it has taken such corporate action as may
be necessary to duly authorize, execute and deliver such of the
foregoing as to which it is a party insofar as the internal laws of
the states of New York and of its jurisdiction of incorporation are
concerned), or as to the title (except that the Independent Owner
represents and warrants that it has duly executed such instruments as
the Issuer has provided to it purporting to convey title to the
Drilling Rig and any other portion of the Additional Trust Estate to
or from the Independent Owner, as the case may be), operation,
merchantability or fitness for use or purpose, value, compliance with
specifications, condition, design, quantity, durability or otherwise
with respect to the Drilling Rig or any other portion of the
Additional Trust Estate or any substitute therefor. The Independent
Owner may consult with counsel, appraisers, engineers, accountants and
other skilled persons to be selected by the Independent Owner, and the
written advice of any thereof shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(e) The obligations of the Independent Owner hereunder shall
cease upon the transfer of its interest in the Trust Estate,
including, without limitation, the Drilling Rig pursuant to the Put
Option, except for any liabilities which may have accrued prior to
such date pursuant to Section 6.01(b), provided however, such transfer
shall not terminate or impair the liens and security interests granted
by Article 3 hereof and by the First Preferred Ship Mortgage and any
other Transaction Document.
ARTICLE 7
CERTAIN ADDITIONAL AGREEMENTS
Section 7.01 The Independent Owner and the Issuer agree that in the
event one or more of the option trigger events under Section 10 of the Sale
and Funding Agreement have occurred and the Independent Owner has not for
any reason exercised the Put Option pursuant to clause 10.2 thereof within
30 days thereafter, the Independent Owner upon receipt of a written demand
that the Put Option be exercised ("Trustee Put Option Demand"), executed by
the Trustee, acting upon the request of any Note Holder, shall sell the
Drilling Rig to the Issuer and the Issuer shall purchase the Drilling Rig
from the Independent Owner pursuant to Sections 10.4 and 10.5 of the Sale
and Funding Agreement, such Trustee Put Option Demand to specify a date
(the "Put Date") not less than 5 days and not more than 30 days after the
date of such demand upon which the transfer under clause 10.4 of the Sale
and Funding Agreement is to be effected. In connection with any exercise
of the Put Option, the Issuer will take or cause to be taken all action and
execute or cause to be executed such assumptions, mortgages, security
agreements and other documents and cause the delivery of the other items
required pursuant to Section 2.03(c) above and Section 10 of the Sale and
Funding Agreement as may be required to consummate the sale of the Drilling
Rig pursuant to the exercise of the Put Option.
Section 7.02. Nothing in Article 4 or elsewhere in this Supplemental
Indenture shall relieve the Issuer from any of the covenants and
obligations of the Issuer under and pursuant to the Indenture as amended
and supplemented hereby and notwithstanding the ownership of the Drilling
Rig by the Independent Owner, the Issuer remains fully responsible and
liable (including, without limitation, as if it was the owner of the
Drilling Rig) for the performance and compliance with all covenants and
obligations of the Issuer under the Indenture as amended and supplemented
hereby and the First Preferred Ship Mortgage. Further, the Issuer hereby
covenants and agrees to perform all of the Assumed Obligations (as defined
in Article 6 hereof) and all other obligations of the Independent Owner
under the Indenture as supplemented and amended hereby, the First Preferred
Ship Mortgage and under all other Transaction Documents.
Section 7.03. The Issuer agrees that it will not assign any of its
rights or interests in and to the Sale and Funding Agreement (except for
the security interest granted to the Trustee pursuant to the Indenture as
amended hereby) or agree to any amendment, modification or waiver of the
terms thereof without express written consent of the Trustee.
Section 7.04. Concurrently with the delivery of this Supplemental
Indenture, the Independent Owner has delivered to the Trustee in escrow and
the Trustee acknowledges receipt of a Xxxx of Sale in the form of Exhibit A
attached hereto, executed on behalf of the Independent Owner (the "Xxxx of
Sale"). The Trustee is hereby authorized to deliver the Xxxx of Sale to
the Issuer 5 Business Days after written notice to the Trustee and the
Independent Owner from a Responsible Officer of the Issuer certifying that
the Issuer requires the Xxxx of Sale to effect a sale contemplated by the
Sale and Funding Agreement and that such sale is being effected in
compliance with the terms and conditions of the Sale and Funding Agreement.
The Trustee shall have no duty or responsibility to determine the accuracy
or appropriateness of the Issuer's notice as aforesaid nor any liability as
a consequence of compliance therewith.
ARTICLE 8
MISCELLANEOUS PROVISIONS
Section 8.01. Except as expressly amended and supplemented hereby,
the Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect.
This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Note Holder heretofore or hereafter authenticated and
delivered under the Indenture shall be bound hereby and all terms and
conditions of both shall be read together as though they constitute a
single instrument, except that in the case of conflict the provisions of
this Supplemental Indenture shall control.
Section 8.02. Except as otherwise expressly provided herein, no
duties, responsibilities or liabilities are assumed, or shall be construed
to be assumed, by the Trustee by reason of this Supplemental Indenture.
This Supplemental Indenture is executed and accepted by the Trustee subject
to all the terms and conditions set forth in the Indenture with the same
force and effect as if those terms and conditions were repeated at length
herein and made applicable to the Trustee with respect hereto.
Section 8.03. THE GOVERNING LAW PROVISIONS OF THE INDENTURE,
INCLUDING BUT NOT LIMITED TO THE APPLICATION OF THE LAWS OF THE STATE OF
NEW YORK, SHALL ALSO GOVERN AND BE USED TO CONSTRUE AND ENFORCE THIS
SUPPLEMENTAL INDENTURE.
Section 8.04. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of
such executed copies together shall represent the same agreement.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
ATTEST: RBF EXPLORATION CO.
By_________________________
Name:_____________________ Name:______________________
Title:____________________ Title:_____________________
ATTEST: BTM CAPITAL CORPORATION
By_________________________
Name:_____________________ Name:______________________
Title:____________________ Title:_____________________
ATTEST: CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By_________________________
Name:_____________________ Name:______________________
Title:____________________ Title:_____________________
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EXHIBIT A
Xxxx of Sale
[to come]
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ANNEX E
[Opinion of Panamanian Counsel]
