EXHIBIT 10.322
==========================================================================
Dated 1 February 2000
HYUNDAI CORPORATION and HYUNDAI HEAVY INDUSTRIES CO., LTD.
as Builders
- and -
RBF EXPLORATION CO.
as Original Purchaser
- and -
BTM CAPITAL CORPORATION
as New Purchaser
-------------------------
NOVATION AGREEMENT
-------------------------
in respect of the construction and sale contract
for Hyundai Hull No. H RBS6
(also described as RBS8M and tbn "Deepwater
Nautilus")
XXXXXX, XXXXXX & XXXXXXXX
London
==========================================================================
INDEX
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
2 REPRESENTATIONS AND WARRANTIES 4
3 NOVATION 6
4 PAYMENTS 7
5 INSURANCES 8
6 REFUND GUARANTEE 8
7 SALE OF OWNER's SUPPLIES 8
8 FURTHER NOVATION 9
9 AMENDMENT TO CONSTRUCTION CONTRACT 10
10 ASSIGNMENT 10
11 MISCELLANEOUS 10
12 NOTICES 11
13 GOVERNING LAW AND JURISDICTION 12
THIS AGREEMENT is made on 1 February 2000
BETWEEN
(1) HYUNDAI CORPORATION of 000-0, Xxx-Xxxx, Xxxxxxx-Xx, Xxxxx, Xxxxx and
HYUNDAI HEAVY INDUSTRIES CO., LTD. of 0 Xxxxxxx-Xxxx, Xxxx-Xx, Xxxxx,
Xxxxx (jointly and severally, the "Builders");
(2) RBF EXPLORATION CO. of 000 Xxxxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000, XXX (the "Original Purchaser");
(3) BTM CAPITAL CORPORATION of 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, XXX (the "New Purchaser").
BACKGROUND
(A) By the Construction Contract the Builders agreed to design, build,
launch, complete and deliver to the Original Purchaser, and the
Original Purchaser agreed to purchase from the Builders, take delivery
of and pay for the Vessel.
(B) Subject to and upon the terms and conditions of this Agreement, the
New Purchaser has agreed to assume all the rights and obligations of
the Original Purchaser under the Construction Contract and the
Builders are willing to agree to the substitution of the New Purchaser
in place of the Original Purchaser in relation to such rights and
obligations and to the release of the Original Purchaser in respect of
those rights and obligations.
(C) It is intended that the existing supervision arrangements in relation
to the construction of the Vessel will be maintained both before and
after the Effective Time.
(D) By a construction supervisory agreement dated the same date as this
Agreement the New Purchaser has appointed RBF Exploration II Inc., a
Nevada corporation affiliated to the Original Purchaser, as the New
Purchaser's sole and exclusive agent to continue to supervise the
design and construction of the Vessel in accordance with the
Construction Contract.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement unless the context otherwise requires
the following words and expressions shall have the following meanings:
"Affiliate" has the meaning given in the Construction Contract.
"Construction Contract" means the construction and sale contract dated
14 November 1997 made between (i) the Original Purchaser (in its
former name RB Exploration Co.) and (ii) the Builders in respect of
the Vessel, as amended by letters dated 10 November 1999 and 1
February 2000 addressed by the Original Purchaser to the Builders and
as otherwise amended, supplemented or modified to date and, from the
Effective Time (or as the context may require), means that contract as
novated, transferred and assumed or amended by this Agreement and as
from time to time further amended, supplemented or modified.
"Construction Expenditure Amount" means an amount equal to the
aggregate of all amounts paid prior to the Effective Time by the
Original Purchaser to the Builders pursuant to Article II of the
Construction Contract in or towards payment of the Contract Price (as
defined therein).
"Delivery" means the delivery of the Vessel under the Construction
Contract.
"Effective Time" means the date and time (prior to Delivery) on which
the conditions specified in Clause 3.3 are satisfied as specified in
the Effective Time Notice.
"Effective Time Notice" means the notice to be signed and exchanged in
accordance with Clause 3.4 in the form set out in Schedule A.
"Equipment Sale and Funding Agreement" means an agreement dated the
same date as this Agreement and made between the Original Purchaser,
as seller, and the New Purchaser, as buyer, for the sale of the
topsides of the Vessel and any related equipment specified in that
agreement including all items of "OWNER's Supplies" supplied or to be
supplied to the Builders under the Construction Contract.
"Financiers' Consent" means all consents to this Agreement required to
be obtained by the Original Purchaser under or in connection with the
Trust Indenture (and related security arrangements) including, without
limitation, the consent given under Article 2 of the Supplemental
Indenture.
"Further Novation Notice" means the notice which may be served by the
New Purchaser and the Replacement Purchaser in accordance with Clause
8.2 in the form set out in Schedule B.
"Indenture Trustee" means Chase Bank of Texas, National Association,
acting as trustee for the Note Holders (as defined in the Trust
Indenture).
"Insurances" means the insurances effected or to be effected by the
Builders in accordance with Article XVII of the Construction Contract.
"Nomination Notice" means a notice which may be served by the New
Purchaser in accordance with Clause 8.1 in the form set out in
Schedule C.
"Novated Obligations" means all the obligations and liabilities
expressed to be imposed on the OWNER under the Construction Contract
and which obligations and liabilities shall, for the avoidance of
doubt, include (without limitation) obligations and liabilities
arising under or in respect of the Construction Contract at or before
the Effective Time which have not been performed or satisfied at or
before the Effective Time; and for the purpose of establishing or
determining the obligations or liabilities of the parties under this
Agreement and/or the Construction Contract, the acts or omissions, or
any series of acts or omissions, or course of conduct, of the Builders
or the Original Purchaser (including, without limitation, those acts
or omissions or series of acts or omissions, or course of conduct
creating or giving rise to a right of rescission or restitution,
misrepresentation, negligence or breach of warranty or duty) which
occurred or did not occur at or before the Effective Time whether in
accordance with, or in breach of, the Construction Contract, or
otherwise howsoever, may be relied upon by parties to this Agreement.
"Novated Rights" means all the rights expressed to be granted to the
OWNER under the Construction Contract and the Refund Guarantee and
which rights shall, for the avoidance of doubt, include (without
limitation) all rights, claims, actions and proceedings in respect of
the Construction Contract arising or, as the case may be, accrued or
commenced at or before the Effective Time; and for the purpose of
establishing or determining the rights or claims of the parties under
this Agreement and/or the Construction Contract, the acts or
omissions, or any series of acts or omissions, or course of conduct of
the Builders or the Original Purchaser (including, without limitation,
those acts or omissions, or series of acts or omissions, or course of
conduct creating or giving rise to a right of rescission or
restitution, misrepresentation, negligence or breach of warranty or
duty) which occurred or did not occur at or before the Effective Time
whether in accordance with, or in breach of, the Construction
Contract, or otherwise howsoever, may be relied upon by the parties to
this Agreement.
"OWNER" and "OWNER's Supplies" have the meanings given to those
expressions in the Construction Contract.
"Refund Guarantee" means the refund guarantee issued by the Refund
Guarantor to the Original Purchaser in accordance with Article X of
the Construction Contract, which will be assigned to the New Purchaser
or (following the issue of a Further Novation Notice) the Replacement
Purchaser pursuant to Clauses 3.1 or 8.
"Refund Guarantor" means Korea Exchange Bank.
"Replacement Purchaser" has the meaning given in Clause 8.
"Supervisor" means such person as the "OWNER" has appointed or may
from time to time appoint as Supervisor for the purposes of and as
referred to in the Construction Contract.
"Supplemental Indenture" means the supplemental indenture and
amendment dated the same date as this Agreement and made between (1)
the Original Purchaser, (2) the New Purchaser and (3) the Indenture
Trustee.
"Trust Indenture" means the trust indenture and security agreement
dated 12 August 1999 and made between (1) the Original Purchaser and
(2) the Indenture Trustee, as amended by the Supplemental Indenture
and as from time to time further amended, supplemented or modified.
"Vessel" means the semi submersible drilling unit more particularly
described in the Construction Contract and identified as Hyundai Hull
No. H RBS6 (and also described by the Original Purchaser as RBS8M and
tbn "Deepwater Nautilus").
1.2 Clause references. References in this Agreement to Clauses and
Schedules are, unless otherwise specified, references to clauses of
and schedules to this Agreement.
1.3 References to "persons" and "successors".
(a) 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; and, unless otherwise specified, their respective
successors.
(b) References to a "successor" include any person who is entitled (by
assignment, novation, merger or otherwise) to any other person's
rights under this Agreement (or any interest in those rights) or who,
as administrator, liquidator or otherwise, is entitled to exercise
those rights; and in particular references to a successor include a
person to whom those rights (or any interest in those rights) are
transferred or pass as a result of a merger, division, reconstruction
or other reorganisation of it or any other person).
1.4 Clause headings. Clause and sub-clause headings are for ease of
reference only and shall not affect the interpretation of this
Agreement.
2 REPRESENTATIONS AND WARRANTIES
2.1 Builders' representations and warranties. The Builders jointly and
severally represent and warrant to each of the other parties to this
Agreement that the following statements are, at the date of this
Agreement, true and accurate:
(a) each Builder is duly incorporated under the laws of Korea and has full
power and authority to enter into and perform its obligations and
discharge its liabilities under this Agreement and to consummate the
transactions contemplated by the Construction Contract and this
Agreement;
(b) the execution, delivery and performance of the Construction Contract
and this Agreement and the consummation of the transactions
contemplated by the Construction Contract and this Agreement have been
duly authorised by all necessary corporate action on the part of the
Builders and do not contravene any applicable law, regulation or order
binding on the Builders or any of their assets or their constitutional
documents;
(c) neither the execution, delivery and performance by the Builders of the
Construction Contract and this Agreement, nor the consummation of any
of the transactions by the Builders contemplated by the Construction
Contract and this Agreement, require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any governmental authority or agency or any
other person, except such as have been obtained and are in full force
and effect;
(d) the Construction Contract and this Agreement constitute legal, valid
and binding obligations and liabilities of the Builders, except as
enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganisation, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(f) there are no disputes outstanding between the Builders and the
Original Purchaser under the Construction Contract, nor are the
Builders aware of any unremedied defaults by the Original Purchaser
under the Construction Contract (and for the purposes of this sub-
clause (e), "disputes" does not refer to outstanding or further change
orders or claims, if any, which have yet to be agreed); and
(g) the Construction Contract has not (other than by this Agreement and by
the letters referred to in the definitions of Construction Contract in
Clause 1.1) been amended, varied, cancelled, novated or terminated.
2.2 New Purchaser's representations and warranties. The New Purchaser
represents and warrants to each of the other parties to this Agreement
that the following statements are, at the date of this Agreement, true
and accurate:
(a) the New Purchaser is duly incorporated under the laws of Delaware and
has full power and authority to enter into and perform its obligations
and discharge its liabilities under this Agreement and to consummate
the transactions contemplated by this Agreement;
(b) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement have
been duly authorised by all such corporate action on the part of the
New Purchaser as may be necessary under the internal laws of the State
of Delaware and the State of New York and do not contravene any such
applicable internal law, order or regulation binding on the New
Purchaser or any of its assets or its constitutional documents;
(c) neither the execution, delivery and performance by the New Purchaser
of this Agreement, nor the consummation of any of the transactions by
the New Purchaser contemplated by this Agreement, require the consent
or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any governmental authority
or agency or any other person, except such as have been obtained and
are in full force and effect (or which are required in connection with
the registered ownership or operation of the Vessel, in respect of
which the New Purchaser has duly executed such documents and
instruments as the Seller has provided to it); and
(d) this Agreement constitutes legal, valid and binding obligations and
liabilities of the New Purchaser, except as enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganisation,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
2.3 Original Purchaser's representations and warranties. The Original
Purchaser represents and warrants to each of the other parties to this
Agreement that the following statements are, at the date of this
Agreement, true and accurate:
(a) the Original Purchaser is duly incorporated under the laws of Nevada
and has full power and authority to enter into and perform its
obligations under this Agreement and to consummate the transactions
contemplated by this Agreement;
(b) the execution, delivery and performance of the Construction Contract
and this Agreement and the consummation of the transactions
contemplated by the Construction Contract and this Agreement have been
duly authorised by all necessary corporate action on the part of the
Original Purchaser and do not contravene any law, regulation or order
binding on the Original Purchaser or any of its assets or its
constitutional documents;
(c) subject to the Financiers' Consent, neither the execution, delivery
and performance by the Original Purchaser of the Construction Contract
or this Agreement, nor the consummation of any of the transactions by
the Original Purchaser contemplated by the Construction Contract and
this Agreement, require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in
respect of, any governmental authority or agency or any other person,
except such as have been obtained and are in full force and effect (or
which are only required to be obtained after the date of this
Agreement in the ordinary course of the operation or employment of the
Vessel); and
(d) the Construction Contract and this Agreement constitute legal, valid
and binding obligations and liabilities of the Original Purchaser
except as enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganisation, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2.4 Original Purchaser's representations and warranties to New Purchaser.
The Original Purchaser represents and warrants to the New Purchaser
that the following statements are, at the date of this Agreement, true
and accurate:
(a) the Original Purchaser has supplied the New Purchaser with true,
complete and up-to-date copies of the Construction Contract;
(b) (save as may have been separately disclosed to the New Purchaser in
writing prior to the execution of this Agreement) there are no
disputes outstanding between the Original Purchaser and the Builders
under the Construction Contract; nor is the Original Purchaser in
default, or aware of any unremedied defaults by the Builders, under
the Construction Contract; and
(c) the Construction Contract has not (other than by this Agreement and by
the letters referred to in the definition of Construction Contract in
Clause 1.1) been amended, varied, cancelled, novated or terminated.
2.3 Survival of representations and warranties. The representations and
warranties given in this Clause 2 shall survive the execution of this
Agreement and shall be deemed to be repeated at the Effective Time.
3 NOVATION
3.1 Novation to New Purchaser. In reliance upon the representations and
warranties given by the parties under Clause 2, the Original Purchaser
agrees to transfer the Construction Contract to the New Purchaser and
the New Purchaser agrees to assume all obligations and liabilities
under the Construction Contract on and with effect from the Effective
Time, upon the following terms and conditions and subject to Clauses
3.2 to 3.4:
(a) the Original Purchaser releases and discharges the Builders from all
their obligations to the Original Purchaser in respect of the Novated
Rights;
(b) the Original Purchaser is released and discharged from the Novated
Obligations;
(c) the New Purchaser shall hereby be vested with and have the benefit of
the Novated Rights (and accordingly the Builders undertake to perform
their obligations and discharge their liabilities in respect of the
Novated Rights under the Construction Contract in favour of the New
Purchaser); and
(d) the New Purchaser shall assume and duly perform the Novated
Obligations, so that, with effect from the Effective Time, the New
Purchaser shall be substituted in place of the Original Purchaser as a
party to the Construction Contract and the Construction Contract
shall on and with effect from the Effective Time be construed and
treated, and the Builders shall be bound by the Construction Contract
in all respects, as if the New Purchaser were named in the
Construction Contract as "OWNER" instead of the Original Purchaser.
3.2 Intended effects of novation. Without prejudice to the generality of
the provisions of Clause 3.1, the following are intended to be
effected by, or are hereby agreed as incidental to, the transfer and
assumption of the Novated Rights and Novated Obligations:
(a) The Builders and the New Purchaser acknowledge and agree that they
shall adopt and be bound by the procedures and understandings
established between the Builders and the Original Purchaser in
relation to the Construction Contract before the Effective Time.
(b) All actions taken by any person (including, but not limited to, any
decision, delegation, revocation, order, request, change, instruction,
confirmation, direction, statement, certificate, appointment payment,
opinion, application, notification, submission, application, approval
or certificate) prior to the Effective Time under, pursuant to, or in
connection with, the Construction Contract shall take effect under
this Agreement and the Construction Contact, as between the Builders
and the New Purchaser, to the extent such actions took effect
originally between the Builders and the Original Purchaser.
(c) The scope, quantum and nature of the Builders' rights, obligations and
liabilities in and arising out of their respective performance of the
Construction Contract (and of those liable through either of them)
shall be the same in all material respects as it has been to date and
shall not be adversely affected by the implementation of this
Agreement.
(d) Notwithstanding that, as between the Original Purchaser and the New
Purchaser, the Original Purchaser may agree to indemnify and/or limit
its recourse to the New Purchaser, as owner of the Vessel, the
Builders undertake not to contend (whether in proceedings or
otherwise) that the New Purchaser has suffered or incurred no damage,
loss or expense, or that their liability to the New Purchaser shall be
reduced or extinguished, by reason of the substitution (or the
consequences of such substitution) of the New Purchaser as "OWNER"
under the Construction Contract.
3.3 Conditions for novation. The transfer and assumption contained in
Clause 3.1 shall be conditional upon:
(a) the receipt by the Original Purchaser of the Financiers' Consent and
the parties' compliance with its terms concerning the implementation of
this Agreement; and
(b) the payment by the New Purchaser to the Original Purchaser of the
Construction Expenditure Amount,
provided however that the Builders shall be entitled (without enquiry)
to rely on the execution and delivery to it by the other parties of
the Effective Time Notice as conclusive evidence that the conditions
set out in this Clause 3.3 have been satisfied or waived.
3.4 Effective Time Notice. Once the conditions set out in Clause 3.3 have
been satisfied the Effective Time Notice shall be completed and
executed by all the parties to this Agreement to fix the day and time
of the Effective Time. If the Effective Time does not occur prior to
Delivery the transfer and assumption of Novated Rights and Novated
Obligations and all other matters or consequences expressed to be
effective as at or from the Effective Time shall not take effect
unless the parties to this Agreement so agree.
3.5 Builders' consent. The Builders consent hereby to the novation,
transfer and assumption of the Construction Contract on the terms of
Clauses 3.1 to 3.4.
3.6 Confirmation of Supervisor's appointment. The New Purchaser hereby
confirms that with effect from the Effective Time the Supervisor is
appointed by the New Purchaser to continue to act as "Supervisor" for
the purposes of the Construction Contract.
3.7 Funding and payment of New Purchaser's payment obligations. The
Original Purchaser hereby confirms to the Builders that pursuant to
the Equipment Sale and Funding Agreement it has agreed, and hereby
guarantees to the Builders, to fund and thereby ensure that the New
Purchaser will discharge all its payment obligations under the
Construction Contract whenever they become due for so long as the New
Purchaser remains a party to the Construction Contract, and
furthermore shall ensure that the proceeds of such funding shall, to
the extent that they are to be applied in or towards payment to the
Builders under the Construction Contract, be paid direct to the
Builders' account.
4 PAYMENTS
4.1 Payments to the Original Purchaser. The Builders shall, subject to
receipt or deemed receipt of the payment to be made to it under Clause
4.2, pay to the Original Purchaser at the Effective Time the
Construction Expenditure Amount in reimbursement of the Original
Purchaser's expenditure under the Construction Contract.
4.2 Payments to the Builders. The New Purchaser shall pay to the Builders
at the Effective Time the Construction Expenditure Amount in full
discharge of such of the payment obligations and liabilities of
"OWNER" as have been already agreed, invoiced and fallen due under the
Construction Contract as at or prior to the Effective Time.
4.3 Direct payment to Original Purchaser. The Builders hereby authorise
and instruct the New Purchaser to pay the amount payable under Clause
4.2 direct to the Original Purchaser, and the parties hereby agree
that such payment shall fully discharge the payment obligations and
liabilities under Clauses 4.1 and 4.2.
4.4 Payments to "OWNER". Following the transfer and assumption contained
in Clause 3.1 and unless a Further Novation Notice is served by the
New Purchaser under Clause 8.1, all payments due to be made to the
OWNER under the Construction Contract shall continue to be made to the
Indenture Trustee for deposit in the account specified by the Original
Purchaser in its notice to the Builders dated 12 August 1999.
5 INSURANCES
5.1 Notification to insurers. The Builders undertake:
(a) promptly to notify the insurers in respect of all Insurances of the
transfer and assumption effected by this Agreement and the sale of
OWNER's Supplies to the New Purchaser referred to in Clause 7; and
(b) to procure that:
(i) all cover notes, policies and other contractual documents
relating to the Insurances shall be endorsed accordingly with the
name of the New Purchaser together with its affiliates, agents,
servants and employees (in each case according to their
respective interests); and
(ii) copies of all such documents, endorsed as provided above,
are provided to the New Purchaser.
6 REFUND GUARANTEE
6.1 Assignment of Refund Guarantee. Promptly after the Effective Time, if
the New Purchaser so requests by delivery to the Builders of a copy of
such notice, the Builders shall procure that the Refund Guarantor
acknowledges a notice of assignment of the Refund Guarantee in favour
of the New Purchaser in the form set out as Schedule C to this
Agreement.
7 SALE OF OWNER'S SUPPLIES
7.1 Owner's Supplies. The Original Purchaser hereby gives notice to the
Builders, and the Builders hereby acknowledge, that with effect at and
from the Effective Time the title to all OWNER's Supplies supplied and
delivered to the Builders pursuant to Article XVI (OWNER's SUPPLIES)
of the Construction Contract shall be transferred to and vest in the
New Purchaser pursuant to the Equipment Sale and Funding Agreement.
8 FURTHER NOVATION
8.1 Nomination of Replacement Purchaser. The New Purchaser shall (with
the prior consent of the Indenture Trustee) be entitled at any time
prior to Delivery to nominate in a Further Novation Notice an
Affiliated Company (as defined in Article XIII (Successors and
Assigns) of the Construction Contract) of the Original Purchaser (or,
with the prior written consent of the Builders, any other company) as
"Replacement Purchaser" for the purposes of this Clause 8.
8.2 Entitlement to exercise further novation rights. If on or prior to
the Delivery Date (but before Delivery takes place), the New Purchaser
and the Replacement Purchaser serve a Further Novation Notice on the
Builders and the Original Purchaser the following provisions of this
Clause 8 apply.
8.3 Further novation. Upon the service of a notice pursuant to Clause
8.2, the following shall occur:
(a) the New Purchaser shall give notice to the Refund Guarantor of the
further assignment of the Refund Guarantee to the Replacement
Purchaser and the Builders shall procure the acknowledgement of the
Refund Guarantor (substantially in the form of Schedule C
appropriately adapted); and
(b) title to any OWNER's Supplies acquired at such date by the New
Purchaser shall automatically be transferred to the Replacement
Purchaser.
8.4 Assumption by Replacement Purchaser. Immediately upon the
effectiveness of the releases, notifications and transfers contained
in Clause 8.3, the following shall occur:
(a) the New Purchaser shall be automatically released and discharged from
all Novated Obligations and shall no longer be under any obligation or
liability under this Agreement or the Construction Contract or in
respect of the Vessel;
(b) the Builders shall be automatically released and discharged from their
obligations and liabilities to the New Purchaser in respect of the
Novated Rights and shall instead owe those to the Replacement
Purchaser; and
(c) all the Novated Obligations and all the Novated Rights shall be
automatically transferred to and assumed by the Replacement Purchaser.
8.5 Tender for delivery etc. If a Further Novation Notice is served after
the date on which the Vessel has been validly tendered for delivery
pursuant to the Construction Contract, that tender will not be
invalidated by reason of that Further Novation Notice having been
served and in such circumstances:
(a) the Builders and the Replacement Purchaser will co-operate with a view
to facilitating delivery of the Vessel on the date specified for
delivery of the Vessel in that tender;
(b) the Builders will, if they have at that time produced the delivery
documents pursuant to and in accordance with Article VII (Delivery) of
the Construction Contract, have a reasonable time (not exceeding 10
days) to prepare replacement delivery documents showing the
Replacement Purchaser as "OWNER" under the Construction Contract as
further transferred and assumed;
(c) the time for delivery of the Vessel pursuant to the Construction
Contract as further transferred and assumed will be extended by the
period referred to in Clause 8.5(b); and
(d) subject to the compliance by the Builders with their obligations under
Clause 8.5(b) and further subject to Clause 8.5(c), the Builders'
rights and obligations under the Construction Contract as further
transferred and assumed will not be affected as a result of any delay
to the delivery of the Vessel arising directly as a result of that
further transfer and assumption.
9 AMENDMENT TO CONSTRUCTION CONTRACT
9.1 Amendment. With effect from the Effective Time the Construction
Contract shall be further amended as follows:
(a) in paragraph 4 (Registration) of Article I (- DESCRIPTION AND CLASS)
of the Construction Contract, after the words "the United States of
America" shall be inserted the words "or Panama";
(b) references in the Construction Contract to "this Contract" shall be
construed as references to the Construction Contract as transferred
and assumed, amended or otherwise modified by this Agreement; and
(c) by construing all references to Affiliated Company(ies) as references
to Affiliated Company(ies) of the Original Purchaser.
10 ASSIGNMENT
10.1 Assignment of Novated Rights. The Builders hereby consent to the
direct or indirect assignment (or series of assignments) by the New
Purchaser in favour of the Original Purchaser (or any Affiliate of the
Original Purchaser) of the Novated Rights, including in particular,
but without limitation, the rights of the OWNER under:
(a) Article III (ADJUSTMENT OF CONTRACT PRICE);
(b) Article IX (WARRANTY OF QUALITY); and
(c) Article X (RESCISSION BY OWNER),
of the Construction Contract.
10.2 Collateral assignment. The Builders hereby further consent to the
collateral assignment by the New Purchaser (or any assignee of the New
Purchaser permitted under Clause 10.1) in favour of the Indenture
Trustee of the Novated Rights.
10.3 Assignment of Novated Obligations. The New Purchaser shall not be
entitled to assign or transfer its rights and obligations under this
Agreement or the Novated Obligations (except pursuant to Clause 8)
without the prior written consent of the Original Purchaser.
11 MISCELLANEOUS
11.1 Counterparts. 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.
11.2 Amendments. This Agreement may be amended only by an instrument in
writing signed by all of the parties to this Agreement.
11.3 Waiver. Any waiver of any right, power or privilege by any party to
this Agreement 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 of that right, power or
privilege nor shall any single or partial exercise of that right,
power or privilege preclude any further exercise of that right, power
or privilege or of any other right, power or privilege. The rights
and remedies provided in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
11.4 Costs and expenses. All costs and expenses arising out of the
negotiation, preparation or execution of this Agreement shall be for
the account of the Original Purchaser, and the Original Purchaser
shall reimburse the Builders in respect of all documented out-of-
pocket costs and expenses, reasonably incurred by the Builders under,
or arising out of the implementation of, this Agreement.
12 NOTICES
12.1 Notices etc. Every notice, request, demand or other communication
under this Agreement or the Construction Contract shall:
(a) be in the English language and in writing delivered personally or by
prepaid first class airmail letter or fax (confirmed in the case of a
fax by prepaid first class airmail letter sent within 24 hours of
despatch but so that the non-receipt of such confirmation shall not
affect in any way the validity of the fax in question);
(b) be deemed to have been received, in the case of a fax, when a
confirmation by the recipient of receipt of such fax is despatched
(provided that, in the case of a fax transmission, if the date of
despatch is not a business day in the country of the addressee it
shall be deemed to have been received at the opening of business on
the next such working day in that country), and in the case of a
letter, when delivered personally or if put in the post, when actually
received;
(c) be sent:
(i) to the Builders to:
Hyundai Heavy Industries Co., Ltd.
Xx. 0, Xxxxxxx-Xxxx, Xxxx-Xx
Xxxxx
Xxxxx
Fax: (00) 000 000 0000 / 3425
Attention: General Manager
(ii) to the Original Purchaser to:
RBF Exploration Co.
901 Threadneedle
Xxxxxxx
Xxxxx 00000-0000
XXX
Fax: (1) (000) 000 0000
Attention: Project Director
(iii) to the New Purchaser to:
BTM Corporation
000 Xxxxxx Xxxxxx
Xxxxxx
Xxxxxxxxxxxxx 00000
XXX
Fax:
Attention: Senior Vice President/Administration
with a copy to:
RBF Exploration II Inc.
c/o The Original Purchaser
or in each case to such other person or address or fax number as one
party may notify in writing to the other parties hereto.
13 GOVERNING LAW AND JURISDICTION
13.1 Law. This Agreement (including, but not limited to, its validity and
enforceability) shall be governed by, and construed in accordance
with, the laws of the State of New York other than conflict of law
rules thereof that would require the application of the laws of a
jurisdiction other than such State.
13.2 Jurisdiction. 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 parties to this Agreement 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 parties to this Agreement 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 the
parties from obtaining jurisdiction over the other parties in any
Court otherwise having jurisdiction.
13.3 Arbitration. Subject to Clause 13.2, any disputes arising out of or
by virtue of the Construction Contract (as transferred and assumed,
amended or otherwise modified by this Agreement) shall be referred to
arbitration as provided for in Article XII (Arbitration) of the
Construction Contract.
SCHEDULE A
FORM OF EFFECTIVE TIME NOTICE
Novation Agreement
Dated [ ] 2000 (the "Agreement") in relation to
Hyundai Hull No. HRBS6
In accordance with Clause 3.3 of the Agreement, the undersigned hereby
confirm that the conditions set out in Clause 3.3 of the Agreement have
been satisfied at [ ] hours on [ ] 2000.
_________________________________________
For and on behalf of
HYUNDAI CORPORATION
_________________________________________
For and on behalf of
HYUNDAI HEAVY INDUSTRIES CO., LTD.
_________________________________________
For and on behalf of
RBF EXPLORATION CO.
_________________________________________
For and on behalf
BTM CAPITAL CORPORATION
SCHEDULE B
FORM OF FURTHER NOVATION NOTICE
To: Hyundai Corporation
Hyundai Heavy Industries Co., Ltd.
cc: RBF Exploration II Inc.
cc: RBF Exploration Co.
Dear Sirs,
Novation Agreement dated [ ] 2000 (the "Agreement") in relation
to Hull No. HRBS6
In accordance with Clause 8.2 of the Agreement we hereby notify you that
the provisions of Clause 8.3 of the Agreement shall have immediate effect.
BTM Capital Corporation hereby names and assigns to _______________________
as Replacement Purchaser all of its right, title and interest in the
Construction Contract. The Replacement Purchaser hereby agrees to comply
with and be bound by such provisions as if it had been a party to the
Agreement.
____________________________
For and on behalf of
BTM CAPITAL CORPORATION
____________________________
For and on behalf of
[REPLACEMENT PURCHASER]
SCHEDULE C
FORM OF NOTICE OF ASSIGNMENT OF REFUND GUARANTEE
To: Korea Exchange Bank
Xxx Xxxx Branch
000-0 Xxx Xxxx
Xxxxxxx-Xx
Xxxxx
Xxxxx
cc: BTM Capital Corporation
Dated: [ ] 2000
Dear Sirs,
re: Letter of Guarantee No. 0696GBD711111 (the "Guarantee")
1. We hereby give you notice that pursuant to a novation agreement dated
[ ] 2000 and made between (1) Hyundai Corporation and Hyundai
Heavy Industries Co., Ltd., (2) ourselves and (3) BTM Capital Corporation
("BTM") all our rights, obligations and liabilities under the Contract (as
defined in the Guarantee) and the Guarantee have been transferred to BTM.
2. This notice shall be governed by and construed in accordance with the
General Maritime law of the United States of America.
3. Please acknowledge the above by countersigning and returning to us
(with a copy to BTM) a copy of this notice.
Yours faithfully
_____________________
RBF Exploration Co.
By:
Title:
Acknowledged and accepted as of the date of the above notice:
_____________________
Korea Exchange Bank
By:
Title:
This Agreement has been executed by the parties to this Agreement on the
date specified at the beginning of this Agreement.
THE BUILDERS
Signed by )
)
for and on behalf of )
HYUNDAI CORPORATION )
in the presence of: )
Signed by )
)
for and on behalf of )
HYUNDAI HEAVY INDUSTRIES )
CO., LTD. )
in the presence of: )
THE ORIGINAL PURCHASER
Signed by )
)
for and on behalf of )
RBF EXPLORATION CO. )
in the presence of: )
THE NEW PURCHASER
Signed by )
)
for and on behalf of )
BTM CAPITAL CORPORATION )
in the presence of: )
