EXHIBIT 10.6
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Form Of
INDENTURE OF FIRST NAVAL MORTGAGE
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between
R&B FALCON CORPORATION
as Owner
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CHRISTIANIA BANK OG KREDITKASSE ASA,
NEW YORK BRANCH, Collateral Agent,
as Mortgagee
XXXXXXXX XXXX
Executed August 31, 2000 to be effective as of September 6, 2000
INDEX
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CLAUSE SUBJECT MATTER PAGE
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1. REPRESENTATIONS AND COVENANTS.................................... 3
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2. DEFINITIONS AND INTERPRETATION................................... 5
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3. MORTGAGE......................................................... 10
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4. PAYMENT COVENANTS................................................ 11
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5. PRESERVATION OF SECURITY......................................... 11
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6. INSURANCE........................................................ 13
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7. RIG COVENANTS.................................................... 16
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8. PROTECTION OF SECURITY........................................... 20
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9. ENFORCEABILITY AND MORTGAGEE'S POWERS............................ 21
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10. APPLICATION OF MONEYS............................................ 23
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11. FURTHER ASSURANCES............................................... 24
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12. POWER OF ATTORNEY................................................ 25
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13. INDEMNITIES...................................................... 25
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14. EXPENSES......................................................... 26
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15. COMMUNICATIONS................................................... 27
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16. ASSIGNMENTS...................................................... 27
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17. TOTAL AMOUNT, ETC................................................ 28
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18. WAIVER: AMENDMENT................................................ 28
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19. MISCELLANEOUS.................................................... 28
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20. JURISDICTION..................................................... 29
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EXHIBIT 1 - FORM OF CREDIT AGREEMENT
THIS INDENTURE OF FIRST NAVAL MORTGAGE is executed on the 31/st/ day of
August, 2000, to be effective as of the 6/th/ day of September, 2000, between
R&B FALCON CORPORATION, a Delaware corporation with its principal office at 000
Xxxxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (hereinafter called the "Owner")
and CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH having its office at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, as Collateral Agent for the Banks (as
hereinafter defined) (hereinafter called the "Mortgagee"), on the Panamanian
flag offshore drilling vessel XXXXXXXX XXXX of 6,157 gross tons, 1,847 net tons
and with a length of 74.09 meters, a breadth of 61.11 meters and a depth of 7.92
meters and Provisional Patent of Navigation No. 27265-PEXT-3 (hereinafter called
the "Rig"), duly registered under the laws and flag of the Republic of Panama,
the detailed description of which is hereinafter more particularly set forth.
WITNESSETH:
WHEREAS
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(A) The Owner is the sole owner of the whole of the Rig; and
(B) By a Letter of Credit and Reimbursement Agreement dated as of August 31,
2000 (as modified, amended or supplemented from time to time, the "Credit
Agreement") among (i) the Owner, (ii) the financial institutions listed
from time to time on Schedule II to the Credit Agreement (the "Banks"),
(iii) Credit Agricole Indosuez; (iv) Credit Lyonnais New York Branch, as
Syndication Agent (the "Syndication Agent"); and (v) Christiania Bank og
Kreditkasse ASA, New York Branch, as Administrative Agent (the
"Administrative Agent" and, together with the Syndication Agent, the
"Agents") (the form of which Credit Agreement, together with the
schedules, the form of A Letter of Credit attached thereto as Exhibit A-1
and the form of Letter of Credit Request attached thereto as Exhibit A-2
but without the remaining exhibits, is attached hereto as Exhibit 1), it
was agreed among other things that the Banks would make available to the
Owner a letter of credit facility (the "Facility") under which the maximum
aggregate principal amount of Letters of Credit (as defined in the Credit
Agreement) at any one time outstanding shall be Seventy Million United
States Dollars (US$70,000,000), including (i) an irrevocable single draw
standby letter of credit in the form of Exhibit A-1 to the Credit
Agreement and in the maximum principal amount of Fifty Million U.S.
Dollars (US$50,000,000) issued by Credit Agricole Indosuez as the A
Issuing Bank (the "A Issuing Bank") for the account of the Owner and for
the benefit of Wilmington Trust Company (or any trustee, agent or other
similar representative for Wilmington Trust Company) in support of the
Deepwater Frontier Obligations (as defined in the Credit Agreement) and
(ii) irrevocable standby letters of credit in the maximum aggregate
principal amount outstanding at any time of Twenty Million U.S. Dollars
(US$20,000,000) to be issued from time to time by Christiania Bank og
Kreditkasse ASA, New York Branch, in its individual capacity as the B
Issuing Bank (the "B Issuing Bank") for the account of the Owner or its
Subsidiaries and for the benefit of any holders of X X/C Supportable
Indebtedness (as defined in the Credit Agreement); and, as required by
Article 1515 Section 3 of the Commercial Code of Panama, the dates on
which the Owner is obligated to reimburse the A Issuing Bank or B Issuing
Bank, respectively, the amount of any Unpaid Drawing (as defined in the
Credit
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Agreement) may be determined from the provisions of the Credit Agreement,
including, without limitation, Sections 1A.03(a) and 1B.04(a); and
(C) The obligations of the Owner with respect to the Facility are evidenced by
the Credit Agreement and the other Credit Documents (as defined in the
Credit Agreement); and
(D) This Mortgage is made for the benefit of the Mortgagee to secure (i) the
full and prompt payment by the Owner when due of (x) all reimbursement
obligations and Unpaid Drawings with respect to any Letter of Credit (as
defined in the Credit Agreement) issued under the Credit Agreement,
together with interest thereon as provided in the Credit Agreement and (y)
all other obligations and indebtedness (including, without limitation,
indemnities, Fees and interest thereon) of the Owner to the Secured
Creditors (as hereinafter defined), whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement
and the other Credit Documents (or any of them) including, without
limitation, this Mortgage, and the due performance and compliance by the
Owner with all of the terms, conditions and agreements contained in the
Credit Agreement and the other Credit Documents (or any of them),
including, without limitation, this Mortgage; (ii) any and all sums
advanced by the Mortgagee, either of the Agents or any of the other
Secured Creditors in order to preserve the Collateral (as defined in the
Credit Agreement) or to preserve the Security Interest in the Collateral
granted by this Mortgage and the other Security Documents (or any of
them); (iii) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of the Owner
referred to in clause (i) above, after an Event of Default (as defined in
the Credit Agreement) shall have occurred and be continuing, the
reasonable expenses of the Mortgagee of re-taking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the
Collateral, including, without limitation, the Rig, or of any exercise by
the Mortgagee of its rights hereunder or under any other Security
Document, together with reasonable attorneys' fees of counsel to the
Mortgagee and court costs; and (iv) all amounts paid by any Indemnitee as
to which such Indemnitee has the right to reimbursement under Clause 13 of
this Mortgage (all such obligations, liabilities, sums and expenses
referred to in clauses (i) through (iv) above being collectively referred
to as the "Obligations"). It is acknowledged and agreed that the
"Obligations" shall include extensions of credit of the types described
above, whether outstanding on the date of this Mortgage or extended from
time to time after the date of this Mortgage; and
(E) This Indenture of First Naval Mortgage is entered into by the Owner in
consideration of the Banks agreeing to make the Facility available to the
Owner and as a condition thereto and for other good and valuable
consideration provided by the Banks (the sufficiency of which the Owner
hereby acknowledges).
NOW, THEREFORE, the appearing parties, each in the name and on behalf of his
respective principal, state that they hereby execute this Indenture of First
Naval Mortgage pursuant to the following representations:
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1. REPRESENTATIONS AND COVENANTS
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1.01 The Owner represents and covenants to the Mortgagee that:
(a) The Rig is duly registered in the name of the Owner in the Public
Registry of the City of Panama, Republic of Panama under Microjacket
21669, Document 139314 as of August 16, 2000;
(b) The Owner, as sole legal and beneficial owner of the Rig, has received
and presently possesses a Provisional Patent of Navigation for the
Rig, duly issued by the Republic of Panama under No. 27265-PEXT-3;
(c) Neither the whole nor any share in the Rig is subject to any Security
Interest (as defined herein) (except for Permitted Liens (as defined
herein) and the lien of this Mortgage);
(d) the Owner has not sold or transferred, or agreed to sell or transfer,
title to the Rig or any share therein;
(e) the Owner is a corporation duly organized and validly existing and in
good standing under the laws of the State of Delaware;
(f) the Owner has full power and authority (i) to execute and deliver this
Mortgage, (ii) to mortgage the Rig as security for the Obligations and
(iii) to comply with the provisions of, and perform all its
obligations under, this Mortgage;
(g) the Owner has complied with all statutory and other material
requirements relative to the ownership, registration and operation of
the Rig;
(h) the Owner has taken all necessary action to authorize the execution
and delivery of this Mortgage and this Mortgage constitutes, the
legal, valid and binding obligation of the Owner enforceable against
the Owner in accordance with its terms (except to the extent limited
by applicable bankruptcy, reorganization, insolvency, moratorium or
other laws of general application relating to or affecting the
enforcement of creditors' rights as from time to time in effect and
general equitable principles) and when preliminarily recorded with the
Public Registry in Panama or through the Panamanian Consulate in New
York, New York or Houston, Texas will create a legal, valid and
enforceable first priority mortgage lien on the Rig subject only to
the permanent filing of this Mortgage in the Public Registry in Panama
within six months of the date of the preliminary recorded filing;
(i) the entry into and performance by the Owner of this Mortgage does not
and will not during the Credit Facility Period (as defined herein)
violate in any respect (i) any law or regulation of any governmental
or official authority or body, or (ii) any of the constitutive
documents of the Owner including the Certificate of
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Incorporation or By-laws, as amended from time to time, or (iii) any
material agreement, contract or other undertaking to which the Owner
is a party or which is binding upon the Owner or any of its assets;
(j) all consents, licenses, approvals and authorizations required in
connection with the entry into, performance, validity and
enforceability of this Mortgage and the transactions contemplated
hereby and thereby have been obtained and are in full force and effect
and will be so maintained during the Credit Facility Period;
(k) save for such registrations and filings as are referred to in this
Mortgage, it is not necessary for the legality, validity,
enforceability or admissibility in evidence of this Mortgage that it
or any document relating thereto be registered, filed, recorded or
enrolled with any court or authority in any relevant jurisdiction or
that any stamp, registration or similar taxes be paid on or in
relation to this Mortgage;
(l) the Owner is in compliance with all applicable Environmental Laws (as
defined herein) and all Environmental Approvals (as defined herein)
relating to the Rig, its operation and management and the business of
the Owner (as now conducted and as reasonably anticipated to be
conducted in the future) have been obtained or complied with;
(m) no Environmental Claim (as defined herein) has been made or threatened
against the Owner or otherwise in connection with the Rig;
(n) no Environmental Incident (as defined herein) which has resulted, or
which could reasonably be expected to result, in an Environmental
Claim in excess of US$200,000 has occurred;
(o) a twenty year inspection of the Vessel is required as a condition to
the issuance of a Permanent Patent of Navigation for the Rig, and the
Owner shall take all necessary action to have such 20 year inspection
performed within three (3) months of the date hereof; and
(p) The Owner hereby affirms as its representations all of the statements
contained in the "WHEREAS" clauses of this Mortgage.
1.02 The representations and warranties of the Owner set out in Clause 1.01
shall survive the execution of this Mortgage and shall be deemed to be
repeated at the time of the issuance of each Letter of Credit, with
respect to the facts and circumstances existing at each such time, as if
made at each such time.
1.03 The Mortgagee represents that the Banks have made the Facility available
to the Owner, as evidenced by, inter alia, the Credit Agreement, the
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Security Documents (as defined in the Credit Agreement), and the other
Credit Documents and accepts the Mortgage constituted by this instrument
upon the Rig as security for the due and prompt payment and performance of
the Obligations (as defined herein).
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1.04 Each of the contracting parties declares that it is satisfied with the
representations and covenants made by the other and accepts them as true;
and the parties mutually acknowledge their respective legal status as well
as the authority of the persons representing them respectively in this
instrument to sign the same on behalf of their respective principals.
2. DEFINITIONS AND INTERPRETATION
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2.01 In this Mortgage unless the context otherwise requires, the following
expressions shall have the following meanings:
"A Issuing Bank" shall have the meaning provided in Recital (B) hereto;
"Administrative Agent" shall have the meaning provided in Recital (B)
hereto;
"Agents" shall have the meaning provided in Recital (B) hereto;
"B Issuing Bank" shall have the meaning provided in Recital (B) hereto;
"Bank" shall mean each financial institution listed from time to time on
Schedule II to the Credit Agreement, as well as any person or entity which
becomes a "Bank" under the Credit Agreement pursuant to Section 10.04 of
the Credit Agreement (collectively, the "Banks");
"Base Rate: shall have the same meaning for such term as set forth in the
Credit Agreement;
"Collateral" shall have the same meaning for such term as set forth in the
Credit Agreement;
"Credit Agreement" shall have the meaning provided in Recital (B) hereto;
"Credit Documents" shall have the same meaning for such term as set forth
in the Credit Agreement;
"Credit Facility Period" shall mean the period commencing on the date
hereof and ending on the date the Total Commitments have terminated, no
Letter of Credit remains outstanding and the Unpaid Drawings together with
interest, Fees and all other obligations under the Credit Documents are
paid in full;
"Default Rate" shall mean the Base Rate in effect from time to time plus
2%;
"Environmental Approvals" means all approvals, licenses, permits,
exemptions or authorization required under applicable Environmental Laws;
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"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigations (other than internal reports
prepared by the Owner or any of its Subsidiaries solely in the ordinary
course of such person's business and not in response to any third party
action or request of any kind) or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (hereafter, "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Materials arising from alleged injury or threat
of injury to health, safety or the environment;
"Environmental Incident" means (i) any release of Hazardous Material from
the Rig, (ii) any incident in which Hazardous Material is released from a
vessel other than the Rig and which involves collision between the Rig and
such other vessel or some other incident of navigation or operation, in
either case, where the Rig or the Owner are actually or allegedly at fault
or otherwise liable (in whole or in part) or (iii) any incident in which
Hazardous Material is released from a vessel other than the Rig and where
the Rig is actually or potentially liable to be arrested as a result
and/or where the Owner is actually or allegedly at fault or otherwise
liable (and, in each such case, "release" shall mean disposing,
discharging, injecting, spilling, leaking, leaching, dumping, emitting,
escaping, emptying, seeping, placing and the like, into or upon any land
or water or air, or otherwise entering into the environment);
"Environmental Law" means any applicable Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guide, policy or rule of
common law now or hereafter in effect and in each case, as amended, and
any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. (S) 9601 et seq.; the
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Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. (S)
6901 et seq.; the Federal Water Pollution Control Act, as amended, 33
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U.S.C. (S) 1251 et seq.; the Toxic Substances Control Act, as amended, 15
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U.S.C. (S) 2601 et seq.; the Clean Air Act, as amended, 42 U.S.C. (S) 7401
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et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. (S) 201 et
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seq.; the Oil Pollution Act of 1990, as amended, 33 U.S.C. (S) 2701 et
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seq. and any applicable state and local or foreign counterparts or
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equivalents;
"Event of Default" shall have the same meaning for such term as set forth
in the Credit Agreement;
"Facility" shall have the meaning provided in Recital (B) hereto;
"Fees" shall have the same meaning for such term as set forth in the
Credit Agreement;
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"Hazardous Material" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other
equipment that contained fluid containing polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous waste," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any applicable
Environmental Law; and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority;
"Indemnitee" shall have the meaning provided in Section 13.01;
"Insurances" includes all policies and contracts of insurance (which
expression includes all entries of the Rig in a protection and indemnity
association) which are from time to time required by Clause 6 hereof to be
taken out or entered into in respect of the Rig or otherwise by the Owner
(whether in the sole name of the Owner or in the joint names of the Owner
and the Mortgagee) and all benefits thereof (including claims of
whatsoever nature and return of premiums);
"Letter of Credit" shall have the same meaning for such term as set forth
in the Credit Agreement;
"Major Casualty" means any casualty to the Rig in respect whereof the
claim or the aggregate of the claims against all insurers, before
adjustment for any relevant franchise or deductible, exceeds Five Hundred
Thousand United States Dollars (US$500,000) or the equivalent in any other
currency;
"Mortgage" means this mortgage, as modified, amended or supplemented from
time to time;
"Obligations" shall have the meaning provided in Recital (D) hereto;
"Oil Pollution Act 1990" means the Oil Pollution Xxx 0000 (33 U.S.C. (S)
2701 et seq.), as amended;
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"Other Rigs" means, individually or collectively, (i) the jackup offshore
drilling vessel X. X. XXXXX owned by the Owner and documented under the
laws and flag of the Republic of Panama with Provisional Patent of
Navigation Number 27302-PEXT-3 of 5,286 gross registered tons and 1,585
net registered tons; (ii) the jackup offshore drilling vessel X. X.
XXXXXXX owned by the Owner documented under the laws and flag of the
Republic of Panama with Provisional Patent of Navigation Number
26724-PEXT-3 of 6,634 gross registered tons and 1,990 net registered tons;
(iii) the semisubmersible offshore drilling rig X. X. XXXXXX owned by the
Owner documented under the laws and flag of the Republic of Panama with
Provisional Patent of Navigation Number 25384-PEXT-3 of 15,453 gross
registered tons and 4,636 net registered tons; and (iv) the
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jackup offshore drilling vessel XXXXXX X. XXXXXXXX owned by the Owner
documented under the laws and flag of the United States of America with
Official Number 651646 of 3,729 gross registered tons and 2,496 net
registered tons;
"Permitted Charters" means (i) drilling and other service contracts
entered into in the ordinary course of the Owner's business, (ii) charters
to Subsidiaries of the Owner, and (iii) charters expressly subordinated to
the lien of this Mortgage on terms satisfactory to the Mortgagee.
"Permitted Liens" means: (1) liens incident to expenses of current
operations, other than for master's and crew's wages, incurred in the
ordinary course of business of the Owner and due and payable for not more
than thirty (30) days (or being contested in good faith, provided such
liens in the aggregate are not in excess of Five Million United States
Dollars (US$5,000,000), or if in excess thereof the Owner has given the
Mortgagee written notice of the existence of such liens and, upon the
written request of the Mortgagee, has provided a bond or other security
satisfactory to the Mortgagee); (2) liens for master's and crew's wages
not yet due and payable; (3) liens for taxes, assessments, governmental
charges, fines and penalties not at the time delinquent (unless being
contested in good faith, provided such liens in the aggregate are not in
excess of Five Million United States Dollars (US$5,000,000), or if in
excess thereof the Owner has given the Mortgagee written notice of the
existence of such liens and, upon the written request of the Mortgagee,
has provided a bond or other security satisfactory to the Mortgagee); (4)
liens for general average and salvage (including contract salvage); (5)
liens for claims covered by valid policies of insurance meeting the
requirements of Clause 6 hereof (provided a lien shall be deemed covered
by insurance to the extent insurance in force would cover the amount
secured by the lien but for any applicable deductible amount approved by
the Mortgagee); (6) liens arising pursuant to any judgment or to an order
of attachment, distraint or similar legal process arising in connection
with legal proceedings, but only for a maximum period of thirty (30) days
and only if and so long as the execution or other enforcement thereof is
stayed; (7) any lien for which the Owner has made provision for payment or
discharge satisfactory to the Mortgagee, as evidenced by the Mortgagee's
written consent to such lien; (8) any lien in favor of the Banks; provided
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that Permitted Liens shall not include any liens described in sub-clauses
(1) through (7) above unless they: (i) are subordinate to the lien of this
Mortgage or (ii) constitute a maritime lien which would in any event be
entitled as such to priority over this Mortgage under the United States
shipping laws or other applicable laws relating to the Rig's trading
pattern. Nothing herein shall be deemed a waiver of the priority preferred
lien status of this Mortgage;
"Protection and Indemnity Risks" means the usual risks covered by
protection and indemnity associations of international repute including
the proportion not recoverable in case of collision under the ordinary
running-down clause (unless such is recoverable under the relevant hull
and machinery coverage);
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"Requisition Compensation" means all moneys or other compensation payable
during the Credit Facility Period by reason of requisition for title or
other compulsory acquisition of the Rig, including requisition for hire;
"Rig" shall have the meaning provided in the first paragraph of this
Mortgage and shall include any share or interest in such vessel and shall
include such vessel's engines, machinery, boats, tackle, outfit, spare
gear, fuel, consumable or other stores, belongings and appurtenances
whether on board or ashore and whether now owned or hereafter acquired
(but excluding therefrom any leased equipment owned by third parties
unaffiliated with the Owner);
"Secured Creditors" means the A Issuing Bank, the B Issuing Bank, the
Banks, the Agents, the Collateral Agent and the Mortgagee;
"Security Documents" shall have the same meaning for such term as set
forth in the Credit Agreement;
"Security Interest" means a mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, trust arrangement, title
retention or other security interest or arrangement of any kind
whatsoever;
"Syndication Agent" shall have the meaning provided in Recital (B) hereto;
"Taxes" shall have the same meaning for such term as set forth in the
Credit Agreement;
"Total Commitment" shall have the same meaning for such term as set forth
in the Credit Agreement;
"Total Loss" means (a) the actual, constructive, arranged, agreed, or
compromised total loss of the Rig; (b) the requisition for title or other
compulsory acquisition or forfeiture of the Rig otherwise than by
requisition for hire; (c) the capture, seizure, arrest, detention or
confiscation of the Rig by any government or by persons acting or
purporting to act on behalf of any government unless the Rig is released
from such capture, seizure, arrest or detention within ninety (90) days
after the occurrence thereof;
"United States Dollars" and "US$" means the lawful currency of the United
States of America;
"Unpaid Drawing" shall have the same meaning for such term as set forth in
the Credit Agreement;
"War Risks" includes the risk of mines and all risks excluded from the
standard form of English marine policy by the free of capture and seizure
clause.
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2.02 Except where otherwise expressly provided or unless the context otherwise
requires, words and expressions defined in the Credit Agreement shall bear
the same meanings when used in this Mortgage.
2.03 In this Mortgage:
(a) Clause headings are inserted for convenience only and shall not affect
the construction of this Mortgage and, unless otherwise specified, all
references to Clauses are to clauses of this Mortgage;
(b) unless the context otherwise requires, words denoting the singular
number shall include the plural and vice versa;
(c) references to persons include bodies corporate and unincorporated;
(d) references to assets include property, rights and assets of every
description;
(e) references to any document are to be construed as references to such
document as amended or supplemented from time to time; and
(f) references to any enactment include re-enactments, amendments and
extensions thereof.
3. MORTGAGE
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3.01 In order to secure the Obligations the Owner has granted, conveyed and
mortgaged and does by these presents grant, convey and mortgage unto the
Mortgagee, its successors and assigns, in accordance with the provisions
of Chapter V, Title IV of Book Second of the Code of Commerce and
pertinent provisions of the Civil Code and other legislation of the
Republic of Panama, the whole of the Rig, the detailed description of
which is as follows:
the Panama flag jackup offshore drilling vessel XXXXXXXX
XXXX; xxxxx tonnage approximately 6,157; net tonnage
approximately 1,847; length overall 74.09 meters, breadth
61.11 meters; depth 7.92 meters; built in 1979 by Marathon
XxXxxxxxxx in Brownsville, Texas; Provisional Patent of
Navigation Number 27265-PEXT-3; radio call letters HP-9319;
TO HAVE AND TO HOLD the same unto the Mortgagee, its successors and
assigns forever, upon the terms herein set forth, to secure the payment
and performance of the Obligations, including the Unpaid Drawings and
interest thereon and such additional sums as the Owner may be obligated to
pay under the agreements, covenants, terms and conditions contained in
this Mortgage, and to secure the performance and observance of and
compliance with all the agreements, covenants, terms and conditions
contained in the Credit Agreement, this Mortgage and the other Credit
Documents (or any of them).
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PROVIDED ONLY and the condition of these presents is such that if the Owner
or its successors and assigns shall pay or cause to be paid to the Secured
Creditors or their respective successors and assigns the Obligations as and
when the same shall become due and payable in accordance with the terms of
the Credit Agreement, this Mortgage and the other Credit Documents and
shall observe and comply with the covenants, terms and conditions contained
in the Credit Agreement, this Mortgage and the other Credit Documents (or
any of them), expressed or implied to be performed, observed or complied
with by and on the part of the Owner or its successors and assigns, then
these presents and the rights hereunder shall cease, determine and be void
and, in such event, the Mortgagee agrees to furnish, execute and record, at
the expense of the Owner, all such documents as the Owner may reasonably
require to discharge this Mortgage, otherwise to be and remain in full
force and effect.
Notwithstanding anything to the contrary herein it is not intended that any
provision of this Mortgage shall waive the preferred status of this
Mortgage and that if any provision or part thereof herein shall be
construed as waiving the preferred status of this Mortgage then such
provision shall to such extent be void and of no effect.
3.02 The Owner shall remain liable to perform all the obligations assumed by it
in relation to the Rig and none of the Secured Creditors shall be under any
obligation of any kind whatsoever in respect thereof or be under any
liability whatsoever in event of any failure by the Owner to perform its
obligations in respect thereof.
3.03 This Mortgage, when it shall have been duly executed and signed on behalf
of the parties, shall be provisionally recorded through the Public Registry
in Panama or the Panamanian Consulate at New York, New York or Houston,
Texas and thereafter within six months permanently recorded in the Public
Registry in Panama.
4. PAYMENT COVENANTS
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4.01 The Owner hereby covenants with the Secured Creditors:
(a) to pay, and indemnify the Secured Creditors against, all expenses,
claims, liabilities, losses, costs, duties, fees, charges or other
moneys as are stated in this Mortgage to be payable by the Owner to,
or recoverable from the Owner by, the Secured Creditors (or in respect
of which the Owner agrees in this Mortgage to indemnify any of the
Secured Creditors) at the times and in the manner specified in this
Mortgage;
(b) to pay interest on any such expenses, claims, liabilities, losses,
costs, duties, fees, charges or other moneys referred to in Clause
4.01(a) from the date on which the relevant expense, claim, liability,
loss, cost, duty, fee, charge or other money is paid by any Secured
Creditor (both before and after any relevant judgment) at the Default
Rate; and
-11-
(c) to pay and perform its obligations which may be or become due or owing
to any Secured Creditor, as the case may be, under the Credit
Agreement, this Mortgage and the other Credit Documents (or any of
them) at the times and in the manner specified herein or therein.
5. PRESERVATION OF SECURITY
------------------------
5.01 It is declared and agreed that:
(a) the security created by this Mortgage shall be held by the Mortgagee
as a continuing security for the performance of the Obligations and
that the security so created shall not be satisfied by any
intermediate payment or satisfaction of any part of the Obligations;
(b) the security so created shall be in addition to and shall not in any
way be prejudiced or affected by any of the other Security Documents;
(c) the Mortgagee shall not have to wait for the enforcement of any of the
other Security Documents before enforcing the security created by this
Mortgage;
(d) no failure or delay on the part of the Mortgagee in exercising any
right, power, privilege or remedy hereunder and no course of dealing
between Owner and Mortgagee or any of the Secured Creditors shall
operate as a waiver thereof; nor shall any single or partial exercise
of any right, power, privilege or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power
or privilege hereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies
which the Mortgagee or any of the Secured Creditors would otherwise
have. No notice to or demand on the Owner in any case shall entitle
the Owner to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Mortgagee or
any of the Secured Creditors to any other or further action in any
circumstances without notice or demand; and
(e) any waiver by the Mortgagee of any terms of this Mortgage or any
consent given by the Mortgagee under this Mortgage shall only be
effective if given in writing and then only for the purpose and upon
the terms for which it is given.
5.02 Any settlement or discharge under this Mortgage between the Mortgagee and
the Owner shall be conditional upon no security or payment to the Secured
Parties or any of them by the Owner or any other person being avoided or
set-aside or ordered to be refunded or reduced by virtue of any provision
or enactment relating to bankruptcy, insolvency, administration or
liquidation for the time being in force and, if such condition is not
satisfied, the Mortgagee shall be entitled to recover from the Owner on
demand the value of such security or the amount of any such payment as if
such settlement or discharge had not occurred.
-12-
5.03 The rights of the Mortgagee under this Mortgage and the security hereby
constituted shall not be affected by any act, omission, matter or thing
which, but for this provision, might operate to impair, affect or discharge
such rights and security, in whole or in part, including without
limitation, and whether or not known to or discoverable by the Owner, the
Secured Creditors or any other person:
(a) any waiver granted to or composition with the Owner or any other
person; or
(b) the taking, variation, compromise, renewal or release of or refusal or
neglect to perfect or enforce any rights, remedies or securities
against the Owner or any other person; or
(c) any legal limitation, disability, incapacity or other circumstances
relating to the Owner or any other person; or
(d) any amendment or supplement to the Credit Agreement, any of the other
Credit Documents or any other document or security; or
(e) the dissolution, liquidation, amalgamation, reconstruction or
reorganization of the Owner or any other person; or
(f) the unenforceability, invalidity or frustration of any obligations of
the or any other person under the Credit Agreement, any of the other
Credit Documents or any other document or security.
6. INSURANCE
---------
6.01 The Owner covenants with the Mortgagee that throughout the Credit Facility
Period:
(a) The Owner shall, at its own expense, when and so long as any
Obligation remains outstanding, insure the Rig and keep her insured,
or cause the Rig to be insured, in lawful money of the United States,
in such amounts, for such risks (including without limitation, hull
and machinery/increased value, Protection and Indemnity Risks,
pollution liability, and War Risks), in such form (including without
limitation, the form of the loss payable clause and the designation of
named assureds) and with such first class insurance companies,
underwriters, funds, mutual insurance associations or clubs, as shall
be reasonably satisfactory to the Mortgagee. With respect to hull and
machinery/increased value insurance, including war risk, the Owner
shall insure the Rig and keep her insured, or cause the Rig to be
insured, for an amount which is at least the agreed value of the Rig,
and when such amount is aggregated with the total amount of such
insurance coverage on the Other Rigs, such aggregate amount shall be
at least 110% of the aggregate amount of the Total Commitment. Such
insurance shall cover marine and war risk perils, on hull and
machinery, with per occurrence deductibles not in excess of Five
Hundred Thousand United States Dollars (US$500,000) (such deductibles
not to apply in the case of Total Loss of the Rig), and shall be
-13-
maintained in the broadest forms available in the American, British
and Scandinavian insurance markets or in such other major
international markets acceptable to the Mortgagee. The Owner shall
maintain protection and indemnity insurance, including war risk
protection and indemnity coverage and coverage against pollution
liability, in an amount not less than Xxx Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxx Dollars (US$100,000,000) (or, with respect to pollution
liability coverage, such greater amount as may be at least equal from
time to time to the limitation of liability amount applicable to the
Rig under the Oil Pollution Xxx 0000 or other Environmental Laws),
through underwriters or associations acceptable to the Mortgagee. In
addition, the Owner shall, at its own expense, furnish to the
Mortgagee a mortgagee's interest policy providing coverage which, when
aggregated with the mortgagee's interest insurance furnished to the
Mortgagee in respect of the Other Rigs, shall be in an amount equal to
at least 110% of the Total Commitment (or in lieu of such mortgagee's
interest insurance Owner shall cause the hull and machinery/increased
value insurance to be endorsed to afford breach of warranty coverage
for the benefit of the Mortgagee). Such mortgagee's interest insurance
and any additional insurance policies for the benefit of the Mortgagee
shall be maintained in the broadest form available in the American,
British and Scandinavian markets or other major international markets
acceptable to the Mortgagee through underwriters acceptable to the
Mortgagee. The Rig shall not operate in or proceed into any area then
excluded by trading warranties under its marine or war risk policies
(including protection and indemnity) without satisfying the conditions
of the relevant policies evidence of which shall be furnished to the
Mortgagee.
(b) The policy or policies of insurance shall be issued by responsible
underwriters reasonably acceptable to the Mortgagee, shall contain
conditions, terms, stipulations and insuring covenants satisfactory to
the Mortgagee, and shall be kept in full force and effect by the Owner
during the Credit Facility Period. All such policies, binders and
other interim insurance contracts shall be executed and issued in the
name of the Owner and shall, to the extent required herein, provide
that the Mortgagee shall be the loss payee for distribution by it to
itself, the other Secured Creditors and the Owner as their interests
may appear. All such insurance shall provide for at least ten days
prior notice to be given to the Mortgagee by the underwriters or
association in the event of (i) cancellation, or (ii) failure of the
Owner to pay any premium or call which would suspend coverage under
the policy or the payment of a claim thereunder, except for war risk
coverage, which shall provide at least seven (7) days prior notice to
the Mortgagee. The Mortgagee and the other Secured Creditors shall be
named as co-assureds on all such policies and insurance contracts, but
without liability of the Mortgagee or the other Secured Creditors for
premiums or calls. Complete certified copies or originals, at the
option of the Mortgagee, of all such policies, binders and other
interim insurance contracts shall be delivered to the Mortgagee upon
the request of the Mortgagee. The Owner shall furnish to the Mortgagee
annually a detailed report signed by a firm of marine insurance
brokers satisfactory to the Mortgagee as to the insurance maintained
in respect of the Rig,
-14-
as to their opinion as to the adequacy thereof and as to compliance
with the provisions of this Clause 6.01.
Unless otherwise required by the Mortgagee, by notice to the
underwriters, although the following insurance is payable to the
Mortgagee, (i) any loss under any insurance on the Rig with respect to
Protection and Indemnity Risks may be paid directly to the Owner to
reimburse it for any loss, damage or expense incurred by it and
covered by such insurance or to the person to whom any liability
covered by such insurance has been incurred and (ii) in the case of
any loss (other than a loss covered by (i) above or by the next
following paragraph of this Clause 6.01(b)) under any insurance with
respect to the Rig involving any damage to the Rig, the underwriters
may pay directly for the repair, salvage or other charges involved or,
if the Owner shall have first fully repaired the damage or paid the
salvage or other charges, may pay the Owner as reimbursement therefor;
provided, however, that if such damage involves a before deductible
-------- -------
loss in excess of Five Million United States Dollars (US$5,000,000),
the underwriters shall not make such payment without first obtaining
the written consent thereto of the Mortgagee (which consent shall not
be unreasonably withheld). Any loss covered by this paragraph which is
paid to the Mortgagee but which might have been paid, in accordance
with the provisions of this paragraph, directly to the Owner or
others, shall be paid by the Mortgagee to, or as directed by, the
Owner, and all other payments to the Mortgagee of losses covered by
this paragraph shall be applied by the Mortgagee in accordance with
Clause 10.01 without regard to the reference to this Clause 6.01(b).
Notwithstanding any other provision in this Mortgage, any amounts
received by the Mortgagee under any Mortgagee's interest policy or
endorsement shall not be applied towards discharge or satisfaction of
any of the Obligations.
In the event of a Total Loss, all insurance payments therefor shall be
paid to the Mortgagee and shall be applied by the Mortgagee in
accordance with Clause 10.01 without regard to the reference to this
Clause 6.01(b). The Owner shall not declare or agree with the
underwriters that the Rig is a Total Loss without the prior written
consent of the Mortgagee.
(c) The Owner shall comply with and satisfy all of the provisions of any
applicable law, regulation, proclamation or order concerning financial
responsibility for liabilities imposed on the Owner or the Rig with
respect to the carriage of passengers or pollution, and will maintain,
or cause to be maintained, all certificates or other evidence of
financial responsibility as may be required by any such law,
regulation, proclamation or order with respect to the trade in which
the Rig from time to time is engaged.
(d) The Owner shall renew all such insurances as they expire and so as to
insure that there is no gap in coverage, keep the Mortgagee advised of
the progress of such renewals, and shall provide evidence of such
renewal in writing to the Mortgagee as and when each such renewal is
effected.
-15-
(e) The Owner shall punctually pay all premiums, calls, contributions or
other sums payable in respect of all such insurances and produce all
relevant receipts when so required by the Mortgagee.
(f) The Owner shall arrange for the execution of such guarantees as may
from time to time be required by any protection and indemnity or war
risks association.
(g) The Owner shall not employ the Rig or suffer the Rig to be employed
otherwise than in conformity with the terms of the instruments of
insurance aforesaid relative to the Rig (including any warranties,
express or implied, therein) without first obtaining the consent to
such employment of the insurers and complying with such requirements
as to extra premium or otherwise as the insurers may prescribe.
7. RIG COVENANTS
-------------
7.01 The Owner covenants with the Mortgagee that throughout the Credit Facility
Period the Owner will:
(a) keep the Rig documented in the Owner's name as a Panamanian flag
vessel and do or allow to be done nothing whereby such documentation
may be forfeited or imperilled;
(b) not without the previous consent in writing of the Mortgagee change
the name of the Rig or make any modification to the Rig which would
materially alter the structure, type or performance characteristics of
the Rig and which would materially reduce the value of the Rig;
(c) keep the Rig in a good and efficient state of repair consistent with
first-class ownership and management practice employed by owners of
drilling rigs of similar size and type and so as to maintain her
present class (namely A1 Self Elevating Drilling Unit) at American
Bureau of Shipping free of recommendations and qualifications and
change of class, save those approved in writing by the Mortgagee and
so as to comply with all applicable laws, treaties and conventions of
the Republic of Panama and other applicable jurisdictions, and rules
and regulations issued thereunder, and have on board as and when
required thereby valid certificates showing compliance therewith;
(d) repair or replace any damaged, worn or lost parts or equipment in such
manner (both as regards workmanship and quality of materials) as to
not materially diminish the value of the Rig and not remove any
material part of the Rig, or item of equipment owned by the Owner or
its Subsidiaries installed on the Rig, unless (i) the part or item so
removed is forthwith replaced by a suitable part or item which is in
the same condition as, or better condition than, the part or item
removed, is free from any Security Interest (other than Permitted
Liens) in favor of any person and becomes on installation on the Rig
the property of the Owner
-16-
and subject to the security constituted by this Mortgage or (ii) the
removal will not materially diminish the value of the Rig;
(e) submit the Rig to such periodical or other surveys as may be required
for classification purposes and if so required to supply to the
Mortgagee copies of all survey reports issued in respect thereof;
(f) permit the Mortgagee by independent surveyors to board the Rig at all
reasonable times and upon reasonable notice for the purpose of
inspecting her condition or for the purpose of satisfying themselves
in regard to proposed or executed repairs and to afford all proper
facilities for such inspections, provided that unless an Event of
Default shall have occurred and be continuing, the cost of any such
inspection shall be for the account of the Mortgagee;
(g) promptly pay and discharge all debts, damages and liabilities
whatsoever which have given or may give rise to maritime or possessory
liens (other than Permitted Liens) on or claims enforceable against
the Rig and all tolls, dues, taxes, assessments, governmental charges,
fines and penalties lawfully charged on or in respect of the Rig and
all other outgoings whatsoever in respect of the Rig and in the event
of arrest of the Rig pursuant to legal process, or in the event of her
detention in exercise or purported exercise of any such lien or claim
as aforesaid, procure the release of the Rig from such arrest or
detention forthwith upon receiving notice thereof by providing bail or
otherwise as the circumstances may require;
(h) not employ the Rig or allow her employment in any trade or business
which is unlawful under the laws of any relevant jurisdiction or in
carrying illicit or prohibited goods or in any manner whatsoever which
can reasonably be expected to render her liable to destruction,
seizure or confiscation and in the event of hostilities in any part of
the world (whether war be declared or not) not employ the Rig or
suffer her employment in carrying any contraband goods and not allow
the Rig to enter or trade to any zone which is declared a war zone by
any government or by the War Risks insurers of the Rig unless there
shall have been effected by the Owner (at its expense) such special,
additional or modified insurance cover as the Mortgagee may reasonably
require;
(i) promptly furnish to the Mortgagee all such information as it may from
time to time require regarding the Rig, her employment, position and
engagements, particulars of all towages and salvages and, upon the
request of the Mortgagee in writing, copies of all charters and other
contracts for her employment or otherwise howsoever concerning her;
(j) notify the Mortgagee forthwith by telecopy thereafter confirmed by
letter of:
(i) any casualty to the Rig which is or is likely to be a Major
Casualty; and
-17-
(ii) any occurrence in consequence whereof the Rig has become or is,
by the passing of time or otherwise, likely to become a Total
Loss; and
(iii) any requirement or recommendation made by any insurer or
classification society or by any competent authority which is
not complied with; and
(iv) any arrest of the Rig or the exercise or purported exercise of
any lien or other Security Interest on the Rig or any
requisition for title, other compulsory acquisition or
requisition for hire of the Rig; and
(v) any intended dry docking of the Rig, as to which the Owner shall
give the Mortgagee 30 days prior notice, provided, that in the
--------
event of any emergency dry docking of the Rig, the Owner shall
immediately notify the Mortgagee; and
(vi) any intended deactivation or lay-up of the Rig (other than for
normal periods of inactivity between contracts for the Rig
during which periods the Rig remains manned) and obtain the
prior written consent of the Mortgagee;
(k) keep proper books of account in respect of the Rig and as and when the
Mortgagee may so reasonably require make such books available for
inspection on behalf of the Mortgagee and furnish satisfactory
evidence that the wages and allotments and the insurance of the master
and crew are being regularly paid and that all deductions from crew's
wages in respect of tax and/or social security liability are being
properly accounted for and that the master has no claim for
disbursements other than those incurred by him in the ordinary course
of trading on the voyage then in progress;
(l) observe the obligations contained in Section 6 of the Credit Agreement
which apply to the Rig, and in pursuance thereof such obligations
shall be incorporated in and deemed to form part of this Mortgage
mutatis mutandis;
(m) not without the previous consent in writing of the Mortgagee (such
consent not to be unreasonably withheld), put the Rig into the
possession of any person for the purpose of work being done upon her
in an amount exceeding or likely to exceed Xxx Xxxxxxx Xxxx Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$2,500,000.00) (or the equivalent in
any other currency) unless (i) such person shall first have given to
the Mortgagee in terms satisfactory to the Mortgagee a written
undertaking not to exercise any lien on the Rig for the cost of such
work or otherwise or (ii) the cost of such work shall be fully covered
by applicable insurance;
(n) comply with and satisfy all the provisions of applicable laws and
regulations of the Republic of Panama, as at any time amended, in
order to establish and maintain this Mortgage as a first priority
naval mortgage thereunder upon the Rig
-18-
and upon all renewals, important and replacements made in or to the
same, and promptly to furnish to the Mortgagee from time to time such
proofs as the Mortgagee may request for its satisfaction with respect
to the compliance by the Owner with the provisions of this sub-clause,
including appropriate certificates of the Public Registry of the
Republic of Panama showing that this Mortgage has been duly registered
and filed and is a first and absolute lien on the Rig;
(o) place, and use due diligence to retain, a properly certified copy of
this Mortgage on board the Rig with her papers and cause such
certified copy of this Mortgage to be exhibited to any and all persons
having business with the Rig which might give rise to any lien thereon
other than a lien for crew's wages, general average and salvage and to
any representative of the Mortgagee on demand and to place and keep
prominently displayed in the chart room and in the master's cabin of
the Rig a framed printed notice in plain type in English of such size
that the paragraph of reading matter shall cover a space not less than
6 inches wide and 9 inches high reading as follows:
"NOTICE OF MORTGAGE
This Rig is subject to an Indenture of First Naval Mortgage in
favor of CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH, as
Collateral Agent for the Secured Creditors defined in said
Mortgage, in conformity with the provisions of Chapter V, Title
IV of Book Second of the Code of Commerce, and the pertinent
provisions of the Civil Code and other legislation of the
Republic of Panama. Under the terms of said Mortgage neither the
owner, any charterer, the master of the Rig nor any other person
shall have the right, power or authority to create, incur or
permit to be placed upon the Rig any other lien whatsoever other
than for current crew's wages and salvage and Permitted Liens (as
that term is defined in said Mortgage)."
(p) comply or procure compliance with all Environmental Laws and
Environmental Approvals relating to the Rig, its operation or
management and the business of the Owner from time to time;
(q) notify the Mortgagee forthwith upon:
(i) any Environmental Claim which could reasonably be expected to
result in damages in excess of Two Hundred Thousand United States
Dollars (US$200,000) being made against the Owner, or otherwise
in connection with the Rig; or
(ii) any Environmental Incident occurring, and keep the Mortgagee
advised, in writing on such regular basis and in such detail as
the Mortgagee shall
-19-
require, of the Owner's response to such Environmental Claim or
Environmental Incident.
(r) not sell, charter (other than Permitted Charters), mortgage or
transfer the Rig without the written consent of the Mortgagee having
first been obtained, and any such written consent to any one such
sale, charter, mortgage or transfer shall not be construed to be a
waiver of this provision with respect to any subsequent proposed sale,
charter, mortgage or transfer. Any such sale, charter, mortgage or
transfer shall be subject to the provisions of this Mortgage and the
lien it creates. The Owner shall not charter the Rig to, or permit the
Rig to serve under any contract with, a person included within the
definition of (i) "national" of a "designated foreign country," or
"specially designated national" of a "designated foreign country," in
the Foreign Assets Control Regulations or the Cuban Assets Control
Regulations of the United States Treasury Department, 31 C.F.R. Parts
500 and 515, in each case as amended, (ii) "Government of Libya",
"entity of the Government of Libya" or "Libyan entity" in the Libyan
Sanctions Regulations of the United States Treasury Department, 31
C.F.R. Part 550, as amended, or (iii) "Government of Iraq", "entity of
the Government of Iraq" or "Iraqi Government entity" in the Iraqi
Sanctions Regulations, 31 C.F.R. Part 575, as amended, all within the
meaning of said Regulations or of any regulations, interpretations or
rulings issued thereunder, or sail in Cuban waters or enter any Cuban
port for any purpose or engage in any transaction that violates any
provision of said Regulations or that violates any provision of the
Office of Foreign Assets Control Regulations, 31 C.F.R. Parts 500
through 597, as amended, or Executive Orders 12810, 12831 and/or
12846; if such transaction or violation would (i) expose the Mortgagee
to any penalty, sanction or investigation or (ii) jeopardize the lien
created by this Mortgage or (iii) have a material adverse effect on
the Owner or the operation of the Rig;
(s) shall not cause or permit the Rig to be operated in any manner
contrary to law (except where the failure to operate in compliance
with any law would not have a material adverse effect on the Owner,
the Rig or the lien of this Mortgage), shall not abandon the Rig in a
foreign port and shall not engage in any unlawful trade or violate any
law or carry any cargo that shall expose the Rig to forfeiture or
capture.
8. PROTECTION OF SECURITY
----------------------
8.01 The Mortgagee shall without prejudice to its other rights and powers under
the Credit Agreement, this Mortgage and the other Credit Documents (or any
of them) be entitled (but not bound) at any time and as often as may be
necessary (but unless an Event of Default shall have occurred and be
continuing with prior written notice to the Owner) to take any such action
as it may in the reasonable exercise of its discretion think fit for the
purpose of protecting or maintaining the security created by this Mortgage
and the other Credit Documents (or any of them) (including, without
limitation, such action as is referred to in Clause 8.02) and each and
every expense, liability, or loss (including,
-20-
without limitation, reasonable legal fees) so incurred by the Mortgagee in
or about the protection or maintenance of the said security together with
interest payable thereon under Clause 4.01 (b) shall be payable to the
Mortgagee by the Owner on demand.
8.02 Without prejudice to the generality of Clause 8.01:
(a) if the Owner does not comply in any material respect with the
provisions of Clause 6 or any of them the Mortgagee shall be entitled
(but not bound) to effect or to replace and renew and thereafter to
maintain the Insurances in such manner it, in its discretion, may
think fit and to require that all policies, contracts and other
records relating to the Insurances (including details of any
correspondence concerning outstanding claims) be forthwith delivered
to such brokers as the Mortgagee may nominate and, upon the direction
of the Mortgagee to collect, recover, compromise and give a good
discharge for all claims then outstanding or thereafter arising under
the Insurances or any of them and to take over or institute (if
necessary using the name of the Owner) all such proceedings in
connection therewith as the Mortgagee in its absolute discretion, may
think fit and to permit the brokers through whom the collection or
recovery is effected to charge the usual brokerage therefor;
(b) if the Owner does not comply with the provisions of Clause 7.01(d) and
7.01(f) or any of them the Mortgagee shall be entitled (but not bound)
to arrange for the carrying out of such repairs to and/or surveys of
the Rig as it deems expedient or necessary; and
(c) if the Owner does not comply with the provisions of Clause 7.01 (g) or
any of them, the Mortgagee shall be entitled (but not bound) to pay
and discharge all such debts, damages and liabilities and all such
tolls, dues, taxes, assessments, charges, fines, penalties and other
outgoings as are therein mentioned and/or to take any such measures as
it deems expedient or necessary for the purpose of securing the
release of the Rig.
9. ENFORCEABILITY AND MORTGAGEE'S POWERS
-------------------------------------
9.01 Upon the happening of any of the Events of Default specified in the Credit
Agreement but without the necessity for any court order or declaration in
any jurisdiction to the effect that an Event of Default has occurred (and
whether prior to or after any notice referred to in Section 7 of the Credit
Agreement) the security constituted by this Mortgage shall become
immediately enforceable and the Mortgagee shall be entitled, as and when it
may see fit, to put into force and exercise all or any of the powers
possessed by it as mortgagee of the Rig or otherwise and in particular:
(a) to exercise all the rights and remedies in foreclosure and otherwise
given to mortgagees by the laws of the Republic of Panama or other
applicable laws;
-21-
(b) to take possession of the Rig whether actually or constructively
and/or otherwise to take control of the Rig wherever the Rig may be
and cause the Owner or any other person in possession of the Rig
forthwith upon demand to surrender the same to the Mortgagee without
legal process and without liability of the Mortgagee for any losses or
damages incurred thereby and without having to render accounts to the
Owner in connection therewith;
(c) to require that all policies, contracts, certificates of entry and
other records relating to the Insurances (including details of and
correspondence concerning outstanding claims) be forthwith delivered
to or to the order of the Mortgagee;
(d) to collect, recover, compromise and give a good discharge for or
procure that the Mortgagee collect, recover, compromise and give good
discharge for any and all moneys or claims for moneys then outstanding
or thereafter arising under the Insurances or any Requisition
Compensation and to permit any brokers through whom collection or
recovery is effected to charge the usual brokerage therefor;
(e) to take over or institute (if necessary using the name of the Owner)
all such proceedings in connection with the Rig, the Insurances, or
any Requisition Compensation as the Mortgagee in its absolute
discretion thinks fit and to discharge, compound, release or
compromise claims against the Owner in respect of the Rig which have
given or may give rise to any charge or lien or other Security
Interest on the Rig or which are or may be enforceable by proceedings
against the Rig;
(f) to sell the Rig or any share therein with or without prior notice to
the Owner free from any claim of or by the Owner of any nature
whatsoever, and with or without the benefit of any charter or other
contract for her employment, by public auction or private contract at
such place and upon such terms (including, without limitation, on
terms such that payment of some or all of the purchase price be
deferred) as the Mortgagee in its absolute discretion may determine
with power to postpone any such sale, without being answerable for any
loss occasioned by such sale or resulting from postponement thereof,
and/or itself to purchase the Rig at any such public auction and to
set off the purchase price against all or any part of the Obligations,
subject to notice of sale being given by the Mortgagee to the Owner
and other mortgagees of record, if any, by airmail, postage pre-paid
and by publication once in a newspaper of general circulation in the
City of Panama, Republic of Panama, not less than twenty (20) calendar
days in advance of the sale, to satisfy the requirement of notice of
sale contained in Article 1527 of the Panama Code of Commerce. Such
notice shall be necessary only in respect of the initial date of sale;
(g) to manage, insure, maintain and repair the Rig and to charter, employ,
sail or lay up the Rig in such manner, upon such terms and for such
period as the Mortgagee in its absolute discretion deems expedient and
for the purposes aforesaid the Mortgagee shall be entitled to do all
acts and things incidental or conducive
-22-
thereto and in particular to enter into such arrangements respecting
the Rig, and the insurance, management, maintenance, repair,
classification, chartering and employment of the Rig, in all respects
as if the Mortgagee were the owner of the Rig and without being
responsible for any loss thereby incurred;
(h) to recover from the Owner on demand any expenses, liabilities or
losses as may be incurred by the Mortgagee in or about the exercise of
the power vested in the Mortgagee under Clause 9.01(g);
(i) generally, to recover from the Owner on demand each and every expense,
liability or loss incurred by the Mortgagee in or about or incidental
to the exercise by it of any of the powers aforesaid.
9.02 The Mortgagee shall not be obliged to make any enquiry as to the nature or
sufficiency of any payment received by it under this Mortgage or to make
any claim, take any action or enforce any rights and benefits assigned to
the Mortgagee by this Mortgage or to which the Mortgagee may at any time be
entitled hereunder.
9.03 Neither the Mortgagee, any other Secured Creditor, nor their respective
agents, managers, officers, employees, delegates and advisers shall be
liable for any expense, claim, liability, loss, cost, damage or expense
incurred or arising in connection with the exercise or purported exercise
of any rights, powers and discretions under this Mortgage in the absence of
gross negligence or wilful misconduct.
9.04 The Mortgagee shall not by reason of the taking possession of the Rig be
liable to account as mortgagee-in-possession or for anything except actual
receipts or be liable for any loss or for any default or omission for which
a mortgagee-in-possession might be liable.
9.05 Upon any sale of the Rig or any share therein by the Mortgagee the
purchaser shall not be bound to see or enquire whether the power of sale of
the Mortgagee has arisen in the manner provided in this Mortgage and the
sale shall be deemed to be within the power of the Mortgagee and the
receipt of the Mortgagee for the purchase money shall effectively discharge
the purchaser who shall not be concerned with the manner of application of
the proceeds of sale or be in any way answerable therefor.
10. APPLICATION OF MONEYS
---------------------
10.01
(a) Except as otherwise provided in Clause 6.01(b) hereof, all moneys
received by the Mortgagee or any other Secured Creditor in connection
with this Mortgage, including, without limitation, in respect of sale
of the Rig or any part thereof, in respect of recovery under the
Insurances, or in respect of Requisition Compensation, shall be
applied in the following manner:
-23-
(i) first, to the payment of all amounts owing the Mortgagee of the
type described in sub-clauses (ii) and (iii) of Recital (D);
(ii) second, to the extent moneys remain after the application
pursuant to the preceding sub-clause (i), an amount equal to the
outstanding Obligations shall be paid to the Secured Creditors
as provided in Clause 10.01(c), with each Secured Creditor
receiving an amount equal to such Obligations held by it or, if
the proceeds are insufficient to pay in full all such
Obligations, its Pro Rata Share (as defined below) of the amount
remaining to be distributed; and
(iii) third, to the extent moneys remain after the application
pursuant to the preceding sub-clauses (i) and (ii), and
following the termination of this Mortgage pursuant to Clause
3.01, any surplus then remaining shall be paid to the Owner,
subject, however, to the rights of the holder of any then
existing Lien (as defined in the Credit Agreement) of which the
Mortgagee has actual notice (without investigation).
(b) For purposes of this Mortgage "Pro Rata Share" shall mean, when
calculating a Secured Creditor's portion of any distribution or amount
in respect of any Obligations, the amount (expressed as a percentage)
equal to a fraction the numerator of which is the then unpaid amount
of such Obligations owing to or held by such Secured Creditor and the
denominator of which is the then outstanding amount of all
Obligations. For purposes of determining the amount payable to each
Secured Creditor, the Mortgagee shall be entitled to request each
Secured Creditor to furnish it with written notice of the amount of
Obligations then owed to it and shall be entitled to rely upon the
amounts stated therein in making such distribution.
(c) All payments required to be made to Secured Creditors hereunder shall
be made to the Administrative Agent under the Credit Agreement for the
account of the Secured Creditors.
(d) For purposes of applying payments received in accordance with this
Clause 10.01, the Mortgagee shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Secured
Creditors for a determination (which the Administrative Agent and each
Secured Creditor, by their acceptance of the benefits of this Mortgage
shall be obligated to provide upon request of the Mortgagee) of the
outstanding Obligations owed to the Secured Creditors. Unless it has
actual knowledge (including by way of written notice from a Secured
Creditor) to the contrary, the Administrative Agent under the Credit
Agreement, in furnishing information pursuant to the preceding
sentence, and the Mortgagee, in acting hereunder, shall be entitled to
assume that no obligations other than principal, interest and
regularly accruing fees are owing to any Secured Creditor.
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10.02 It is understood and agreed that the Owner shall remain liable to the
extent of any deficiency between the amount of the proceeds of the Rig
or other amounts received hereunder and the aggregate amount of the
Obligations.
11. FURTHER ASSURANCES
------------------
11.01 The Owner shall execute and do all such assurances, acts and things as
the Mortgagee in its absolute discretion may require for:
(a) perfecting or protecting the security created (or intended to be
created) by this Mortgage; or
(b) preserving or protecting any of the rights of the Mortgagee and
the other Secured Creditors under this Mortgage; or
(c) ensuring that the security constituted by this Mortgage and the
covenants and obligations of the Owner under this Mortgage shall
inure to the benefit of any transferee, successor or assignee of
the Mortgagee; or
(d) enforcing the security constituted by this Mortgage on or at any
time after the same shall have become enforceable; or
(e) the exercise of any power, authority or discretion vested in the
Mortgagee under this Mortgage, in any such case, forthwith upon
demand by the Mortgagee and at the expense of the Owner.
12. POWER OF ATTORNEY
-----------------
12.01 The Owner, by way of security and in order to more fully secure the
performance of the Obligations under this Mortgage, hereby irrevocably
appoints the Mortgagee as its attorney for the duration of the Credit
Facility Period for the purposes of:
(a) doing in its name all acts and executing, signing and (if
required) registering in its name all documents which the Owner
itself could do, execute, sign or register in relation to the Rig
(including without limitation, transferring title to the Rig to a
third party), provided, however, that such power shall not be
exercisable by or on behalf of the Mortgagee until this Mortgage
shall have become immediately enforceable pursuant to Clause
9.01; and
(b) executing, signing, perfecting, doing and (if required)
registering every such further assurance document, act or thing
as is referred to in Clause 11.
12.02 The exercise of such power as is referred to in Clause 12.01(a) by or
on behalf of the Mortgagee shall not put any person dealing with the
Mortgagee upon any enquiry as to whether this Mortgage has become
enforceable nor shall such person be in any way affected by notice
that this Mortgage has not become enforceable and, in relation to both
-25-
Clauses 12.01(a) and 12.01(b), the exercise by the Mortgagee of such
power shall be conclusive evidence as against third parties of its
right to exercise the same.
13. INDEMNITIES
-----------
13.01 The Owner will indemnify and save harmless each of the Mortgagee, the
other Secured Creditors and their respective officers, directors,
employees, attorneys and agents (each an "Indemnitee") from and
against any and all expenses, claims, liabilities, losses, taxes,
costs, duties, fees and charges suffered, incurred or made by any
Indemnitee in good faith:
(a) in the exercise or purported exercise of any rights, powers or
discretions vested in them pursuant to this Mortgage; or
(b) in the preservation or enforcement of the rights of the Mortgagee
under this Mortgage; or
(c) on the release of the Rig from the security created by this
Mortgage,
and the Indemnitees may retain and pay all sums in respect of the same
out of money received under the powers conferred by this Mortgage. All
such amounts recoverable by an Indemnitee shall be recoverable on a
full indemnity basis.
13.02 Without limiting the foregoing Clause 13.01, the Owner hereby further
indemnifies and holds harmless each of the Indemnitees from and
against any and all liabilities, losses, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses, consultant fees,
investigation and laboratory fees) imposed upon or incurred by or
asserted against them, or any of them, by reason of (a) an actual,
alleged or threatened Environmental Incident; (b) any personal injury
(including wrongful death) or property damage (real or personal) or
economic damage arising out of or related to such Environmental
Incident; (c) any Environmental Claim brought or threatened, or
settlement reached; or (d) any violation of laws, orders, regulations,
requirements or demands of government authorities relating to
Hazardous Materials at, or discharged from, the Rig.
13.03 If, under any applicable law or regulation, and whether pursuant to a
judgment being made or registered against the Owner or the liquidation
of the Owner or for any other reason, any payment under or in
connection with this Mortgage is made or fails to be satisfied in a
currency (the "payment currency") other than the currency in which
such payment is due under or in connection with this Mortgage (the
"contractual currency"), then to the extent that the amount of such
payment actually received by the Mortgagee, when converted into the
contractual currency at the rate of exchange, falls short of the
amount due under or in connection with this Mortgage, the Owner, as a
separate and independent obligation, shall indemnify and hold harmless
the Mortgagee against the amount of such shortfall. For the purposes
of this Clause 13.03, "rate of exchange" means the rate at which the
Mortgagee is able on the date of such payment (or, if it is not
-26-
practicable for the Mortgagee to purchase the contractual currency
with the payment currency on the date of such payment, at the rate of
exchange as soon afterwards as is practicable for the Mortgagee to do
so) to purchase the contractual currency with the payment currency and
shall take into account any premium and other costs of exchange with
respect thereto.
14. EXPENSES
--------
14.01 The Owner shall pay to the Mortgagee and any other Secured Creditor on
demand all costs, fees and expenses, including, but not limited to,
legal fees and expenses and valuation fees and Taxes thereon incurred
by the Mortgagee or any other Secured Creditor or for which the
Mortgagee or any other Secured Creditor may become liable in
connection with:
(a) the negotiation, preparation and execution of the Credit
Agreement, this Mortgage and the other Credit Documents (or any
of them); and/or
(b) the preserving or enforcing of, or attempting to preserve or
enforce, any rights under the Credit Agreement, this Mortgage and
the other Credit Documents (or any of them).
14.02 The Owner shall pay to the Mortgagee or any other Secured Creditor on
demand all costs, fees and expenses (including, but not limited to,
legal fees and expenses) and Taxes thereon incurred by the Mortgagee
or any other Secured Creditor in connection with:
(a) any variation of, or amendment or supplement to, any of the terms
of the Credit Agreement, this Mortgage and the other Credit
Documents (or any of them) requested by the Owner, necessary or
advisable under applicable law or relating to the syndication of
the Facility, or initiated during the occurrence and continuation
of an Event of Default; and/or
(b) any consent or waiver required from the Mortgagee in relation to
the Credit Agreement, this Mortgage and the other Credit
Documents (or any of them), and in each case, regardless of
whether the same is actually implemented, completed or granted,
as the case may be.
14.03 The Owner shall pay promptly all stamp, documentary and other like
duties and Taxes to which the Credit Agreement, this Mortgage and the
other Credit Documents (or any of them) may be subject or give rise
and shall indemnify the Mortgagee on demand against any and all
liabilities with respect to or resulting from any delay or omission on
the part of the Owner to pay any such duties or Taxes.
15. COMMUNICATIONS
--------------
15.01 All notices required to be given to the Mortgagee shall be made to the
following address:
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Christiania Bank og Kreditkasse ASA, New York Branch
00 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Loan Administration
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy to Xxxxxx Xxxxxxxxx, Esquire, White & Case LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Telecopier No. 212-354-
8113 and with a copy to Xxxxxxx X. Xxxxxxxxxx, Esquire, Royston,
Rayzor, Xxxxxxx & Xxxxxxxx, L.L.P., 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Telecopier No. 000-000-0000. All other notices
shall be made to the addresses provided for in Section 10.03 of the
Credit Agreement.
16. ASSIGNMENTS
-----------
16.01 This Mortgage shall be binding upon and shall inure to the benefit of
the Owner, the Mortgagee and the other Secured Creditors and their
respective transferees, successors and permitted assigns, and
references in this Mortgage to any of them shall be construed
accordingly.
16.02 The Owner may not assign or transfer all or any part of its rights
and/or obligations under this Mortgage.
16.03 Pursuant to Section 10.04 of the Credit Agreement, each Bank has the
right to assign or transfer all or any part of its rights and/or
obligations under the Credit Agreement on the terms therein provided.
The Mortgagee shall notify the Owner promptly following any such
assignment, transfer or change.
17. TOTAL AMOUNT, ETC.
------------------
17.01 For the purposes of recording this Mortgage, as required by the
Panamanian Maritime Law, the total principal amount of the direct or
contingent obligations that are or may be secured by the Mortgage is
Seventy Million United States Dollars (US$70,000,000), and, in
addition, interest, fees, court costs, collection expenses, amounts
resulting from fluctuation in exchange rates and any additional
amounts agreed upon which are secured in accordance with Article 1515
of the Code of Commerce of the Republic of Panama for which the Owner
may become liable in connection with the performance of the covenants
of the Credit Agreement, this Mortgage and any other Credit Document
(or any of them). The total discharge amount is the same as the total
amount.
18. WAIVER: AMENDMENT
-----------------
18.01 None of the terms and conditions of this Mortgage may be changed,
waived, modified or varied in any manner whatsoever unless in writing
duly signed by the Owner and the
-28-
Mortgagee (with the consent of any Secured Creditor required by
Section 10.14 of the Credit Agreement).
19. MISCELLANEOUS
-------------
19.01 This Mortgage shall be governed by the laws of the Republic of Panama.
19.02 If at any time any one or more of the provisions in this Mortgage is
or becomes invalid, illegal or unenforceable in any respect under any
law or regulation, the validity, legality and enforceability of the
remaining provisions of this Mortgage shall not be in any way affected
or impaired thereby.
19.03 The Mortgagee, at any time and from time to time, may delegate by
power of attorney or in any other manner to any person or persons all
or any of the powers, authorities and discretions which are for the
time being exercisable by the Mortgagee under this Mortgage in
relation to the Rig. Any such delegation may be made upon such terms
and subject to such regulations as the Mortgagee may think fit. The
Mortgagee shall not be in any way liable or responsible to the Owner
for any loss or damage arising from any act, default, omission or
misconduct on the part of any such delegate.
19.04 The appearing parties hereby confer a special power of attorney on (i)
Xxxxxxxxx & Xxxxxxxxx, lawyers of Panama, Republic of Panama, (ii)
White & Case LLP, and (iii) Royston, Rayzor, Xxxxxxx & Xxxxxxxx,
L.L.P. and/or any lawyers in any such firm authorizing any such firm
or any such lawyer to take all necessary steps to record this
Indenture of First Naval Mortgage in the appropriate registries of the
Republic of Panama, including, without limitation, through the
Panamanian Consulate in New York, New York or Houston, Texas, and to
substitute the power of attorney herein granted.
19.05 A certification or determination by the Mortgagee as to any matter
provided for in this Mortgage shall, in the absence of manifest error,
be conclusive and binding on the Owner.
19.06 The Mortgagee declares that it accepts the naval mortgage hereby
created under the terms above set forth.
19.07 This Mortgage may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist
of a number of copies hereof each signed by less then all, but
together signed by all, the parties hereto.
20. JURISDICTION
------------
20.01 The Owner agrees that the Mortgagee shall have the liberty but shall
not be obliged to take any proceedings in the courts of any country to
protect or enforce the security constituted by this Mortgage or to
enforce any provisions of this Mortgage or to enforce the Obligations
and for the purpose of any proceedings for such enforcement the Owner
-29-
hereby submits to the jurisdiction of the courts of any country of the
choice of the Mortgagee.
20.02 Without prejudice to the generality of Clause 20.01, the Mortgagee
shall have the right to arrest and take action against the Rig at
whatever place the Rig shall be found lying and for the purpose of any
action which the Mortgagee may bring before the courts of such
jurisdiction or other judicial authority and for the purpose of any
action which the Mortgagee may bring against the Rig, any writ,
notice, judgment or other legal process or documents may (without
prejudice to any other method of service under applicable law) be
served upon the master of the Rig (or upon anyone acting as the
master) and such service shall be deemed good service on the Owner for
all purposes.
20.03 The Owner agrees that should the Mortgagee bring a legal action or
proceeding against it or its assets in relation to any matters arising
out of or in connection with this Mortgage, no immunity from such
legal action or proceeding (which shall be deemed to include, without
limitation, suit, attachment prior to judgment, other attachment, the
obtaining of judgment, execution or other enforcement) shall be
claimed by or on behalf of the Owner or with respect of its assets,
and the Owner hereby irrevocably waives any such right of immunity
which it or its assets now has or may hereafter acquire and the Owner
hereby consents generally in respect of any legal action or
proceedings arising out of or in connection with this Mortgage to the
giving out of any relief or the issue of any process in connection
with such action or proceedings including, without limitation, the
making, enforcement or execution or attachment against any property
whatsoever of any order or judgment which may be made or given in such
action or proceedings.
[The remainder of this page intentionally left blank.]
-30-
IN WITNESS WHEREOF, the parties have executed this Mortgage on the 31/st/ day of
August, 2000 to be effective as of the 6/th/ day of September, 2000.
R&B FALCON CORPORATION
By: ________________________________
Name:________________________________
Title:________________________________
ACKNOWLEDGMENT OF MORTGAGE
--------------------------
STATE OF TEXAS )
) ss:
COUNTY OF XXXXXX )
On this 31/st/ day of August, 2000 before me personally appeared _____________,
to me known and whose address is 000 Xxxxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000; who submitted evidence to me that he is the ____________________________
of R&B FALCON CORPORATION, the corporation described in and which executed the
foregoing mortgage; and that he signed his name thereto pursuant to authority
granted to him by the Board of Directors of said corporation.
_________________________
Notary Public
CHRISTIANIA BANK OG KREDITKASSE ASA,
NEW YORK BRANCH, as Collateral Agent
By: ________________________________
Name: ________________________________
Title:________________________________
By: ________________________________
Name: ________________________________
Title:________________________________
ACKNOWLEDGMENT OF MORTGAGE
--------------------------
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 31/st/ day of August, 2000, before me personally appeared _____________
to me known and whose address is 00 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, XX 00000; and
who submitted evidence to me that he/she is _____________________________ of
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH, the corporation described
in and which executed the foregoing mortgage; and that he/she signed his/her
name thereto pursuant to authority granted to him/her by the Board of Directors
of said corporation.
__________________________
Notary Public
ACKNOWLEDGMENT OF MORTGAGE
--------------------------
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 31/st/ day of August, 2000, before me personally appeared
_________________________ to me known and whose address is 00 Xxxx 00/xx/
Xxxxxx, Xxx Xxxx, XX 00000; and who submitted evidence to me that he/she is
______________________________ of CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK
BRANCH, the corporation described in and which executed the foregoing mortgage;
and that he/she signed his/her name thereto pursuant to authority granted to
him/her by the Board of Directors of said corporation.
________________________
Notary Public
EXHIBIT 1 - FORM OF CREDIT AGREEMENT
(Credit Agreement together with the schedules, the form of A Letter of Credit
attached thereto as Exhibit A-1 and the form of Letter of Credit Request
attached thereto as Exhibit A-2 but without the remaining exhibits)
