EXHIBIT 10.321
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Date 1 February 2000
RBF EXPLORATION CO.
as Seller
- and -
BTM CAPITAL CORPORATION
as Purchaser
EQUIPMENT SALE AND FUNDING AGREEMENT
in respect of
Hyundai Hull No. HRBS6 (also described as RBS8M and tbn "Deepwater Nautilus")
and certain equipment to be purchased
and supplied for its construction
and use as a drilling rig
XXXXXX, XXXXXX & XXXXXXXX
London
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INDEX
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
2 REPRESENTATIONS AND WARRANTIES 5
3 SALE OF THE EQUIPMENT 6
4 EQUIPMENT PURCHASE PRICE 7
5 HULL LOAN 8
6 COMMON PROVISIONS 10
7 INTEREST 10
8 COMPENSATION AND WARRANTY RIGHTS 11
9 SALES AGENCY 11
10 PUT OPTION 12
11 PAYMENTS 13
12 MISCELLANEOUS 13
13 NOTICES 14
14 GOVERNING LAW AND JURISDICTION 14
THIS AGREEMENT is made on 1 February 2000
BETWEEN:
(1) RBF EXPLORATION CO. of 000 Xxxxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
000000, XXX (the "Seller") and
(2) BTM CAPITAL CORPORATION of 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, XXX (the "Purchaser")
BACKGROUND:
(A) By the Construction Contract the Builders agreed to design, build,
launch, complete and deliver to the Seller, and the Seller agreed to
purchase from the Builders, take delivery of and pay for, the Vessel.
(B) By the Construction Novation Agreement the Purchaser has agreed to
assume and discharge with effect from the Effective Time all the
rights, obligations and liabilities of the Seller under the
Construction Contract and be substituted as "OWNER" under the
Construction Contract.
(C) Pursuant to Article XVI (OWNER'S Supplies) of the Construction
Contract the Seller has supplied and delivered to the Builders the
Equipment (being the "OWNER'S Supplies" referred to in the
Construction Contract), title to which remains at all times with the
"OWNER" as prescribed by the Construction Contract.
(D) This Agreement sets out the terms upon which the Seller agrees:
(i) to transfer title and risk to and in the Equipment to the
Purchaser;
(ii) to lend money to finance the Purchaser's acquisition of the
Vessel under the Construction Contract; and
(iii) to provide credit to the Purchaser to assist it in its
purchase of the Equipment.
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:
"Amendment to Note Purchase Agreement" has the meaning given in the
Supplemental Indenture;
"Builders Refund Date" means, following the rescission or deemed
rescission of the Construction Contract pursuant to Article X
(Rescission by Owner), Article XI (Owner's Default) or paragraph 2(b)
of Article XVII (Insurance) of the Construction Contract, the date
upon which the Purchaser (or the Indenture Trustee) first receives any
amount payable by the Builders or the Refund Guarantor in accordance
with those provisions (or, as the case may be, after an arbitral
award);
"Construction Contract" means the construction and sale contract dated
14 November 1997 and made between (i) the Seller (in its former name
RB Exploration Co.) and (ii) the Builders in respect of the Vessel, as
amended, supplemented or modified to date and, from the Effective Time
(or as the context may require), as novated, transferred and assumed
and amended by the Construction Novation Agreement and as from time to
time further amended, supplemented or modified;
"Construction Novation Agreement" means an agreement dated the same
date as this Agreement and made between the Builders, the Seller and
the Purchaser for the transfer to the Purchaser of all the Seller's
rights, obligations and liabilities under the Construction Contract;
"Construction Supervisor" means RBF Exploration II Inc., a Nevada
corporation;
"Construction Supervisory Agreement" means an agreement dated the
same date as this Agreement and made or to be made between (1) the
Purchaser, as owner, (2) the Seller and (3) the Construction
Supervisor, whereby the Construction Supervisor is appointed as agent
to supervise the design and construction of the Vessel in accordance
with the Construction Contract, the acquisition and assembly of the
Equipment to be used thereon, and the delivery of the Vessel to SDDI
in accordance with the SDDI Contract;
"Contract Price" has the meaning given in the Construction Contract;
"Default Interest" means default interest as referred to in Clause
7.3;
"Delay Compensation Rights" means all rights in relation to those
certain periodic payments in the amount of $150,000 per day which may
become payable to the Purchaser by the Construction Supervisor in
accordance with Section 4.1, 4.2 and/or 6.1 of the Construction
Supervisory Agreement;
"Delivery" means the delivery of the Vessel by the Builders under the
Construction Contract;
"Effective Time" means the date and time specified as such in the
Effective Time Notice;
"Effective Time Notice" means the notice to be signed and exchanged
between the Seller, the Purchaser and the Builders in accordance with
clause 3.4 of the Construction Novation Agreement in the form set out
in schedule A to that agreement;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, trust arrangement or security
interest or other encumbrance of any kind securing any obligation of
any person or any type of preferential arrangement (including without
limitation title transfer and/or retention arrangements having a
similar effect);
"Equipment" means all Owner's Supplies, supplied or to be supplied
and delivered to the Builders pursuant to Article XVI of the
Construction Contract;
"Equipment Purchase Price" has the meaning given in Clause 3.1;
"Excepted Liens" has the meaning given in the Trust Indenture;
"Financiers" means the Indenture Trustee and any other approved
person providing finance or credit support for the Seller in
connection with the construction and acquisition of the Vessel;
"Financiers' and Surety Consent" means all consents to this Agreement
required to be obtained by the Seller under or in connection with the
Trust Indenture (and related security arrangements) including, without
limitation, the consent of the Surety and the consent given under
Article 2 of the Supplemental Indenture;
"Further Novation Date" means, if applicable, the date of further
novation of the Construction Contract and transfer of the Equipment to
the Replacement Purchaser in accordance with clause 8 of the
Construction Novation Agreement;
"Hull Loan" has the meaning given in Clause 5.1;
"Insurances" means the insurances effected or to be effected by the
Builders in accordance with Article XVII of the Construction Contract;
"Mortgagee Sale Date" means, if applicable, the date of completion of
any foreclosure sale of the Vessel by the Indenture Trustee as
mortgagee of the Vessel;
"Note Purchase Agreements" and "Notes" have the meanings given in the
Trust Indenture;
"On-Sale Date" means, if applicable, in relation to a sale of the
Vessel contemplated by Clause 9, the date upon which the proceeds of
sale (or, in the case of a sale on hire purchase terms, the proceeds
of the first instalment of hire) are paid by the new purchaser of the
Vessel;
"OWNER" has the meaning given in the Construction Contract;
"Payment Date" has the meaning given in Clause 4.2;
"Put Date" means, if applicable, the date specified in the Put Option
Notice for transfer of title to the Vessel pursuant to Clause 10.4;
"Put Option Notice" means a notice in the form of the Schedule;
"Refund Guarantor" has the meaning given in the Construction Novation
Agreement;
"Replacement Purchaser" has the meaning given in the Construction
Novation Agreement;
"SDDI" means Shell Deepwater Development Inc., a Delaware corporation;
"SDDI Contract" means the offshore daywork drilling contract dated 12
August 1998 and made between the Seller and SDDI, as amended,
supplemented or otherwise modified from time to time with the consent
of the Construction Supervisor, the Indenture Trustee and the Surety;
"Supervisor" means such person as the "OWNER" has appointed or may
from time to time appoint as Supervisor for the purposes of the
Construction Contract;
"Total Loss Proceeds Date" means, if applicable, following the total
loss or compulsory acquisition of the Vessel, the date upon which the
Indenture Trustee (or the Purchaser) receives all or part of the
insurance proceeds or requisition compensation relating to such loss
or acquisition;
"Transaction Documents" means the Construction Novation Agreement,
the Construction Supervisory Agreement, this Agreement, the Note
Purchase Agreements, the Amendment to Note Purchase Agreement, the
Trust Indenture, the Supplemental Indenture and all documents executed
or to be executed pursuant to or in connection with those agreements;
"Vessel" means the semi submersible drilling unit more particularly
described in the Construction Contract and identified as Hyundai Hull
No. HRBS6 (and also described by the Seller as RBS8M and tbn
"Deepwater Nautilus"); and
"Warranty Rights" means:
(a) all rights, including (without limitation) the benefit of article
IX (Warranty of Quality) of the Construction Contract, which may
from time to time exist against the Builders in respect of the
condition, design or construction of any part of the Vessel; and
(b) the benefit of all vendor or supplier warranties relating to the
Equipment.
1.2 CSA definitions. In addition to the definitions set out in Clause
1.1, in this Agreement unless the context otherwise requires the
following words and expressions shall have the meanings given in the
Construction Supervisory Agreement:
"Builders"
"Indenture Trustee"
"Note Holder(s)"
"Owner Lien(s)"
"Owner's Supplies"
"SDDI"
"SDDI Contract"
"Supplemental Indenture"
"Surety"
"Termination Date"
"Trust Indenture".
1.3 Clause references. References in this Agreement to Clauses and the
Schedule are, unless otherwise specified, references to clauses of and
the schedule to this Agreement.
1.4 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.
1.5 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 Seller's representations and warranties. The Seller represents and
warrants to the Purchaser that the following statements are, at the
date of this Agreement, true and accurate:
(a) the Seller 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 this Agreement and the
consummation of the transactions contemplated by this Agreement have
been duly authorised by all necessary corporate action on the part of
the Seller and do not contravene any law, regulation or order binding
on the Seller or any of its assets or its constitutional documents;
(c) subject to the Financiers' and Surety Consent, neither the execution,
delivery and performance by the Seller of this Agreement, nor the
consummation of any of the transactions by the Seller 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 only required to be obtained after the date of this
Agreement in the ordinary course of the operation or employment of the
Vessel);
(d) this Agreement constitutes legal, valid and binding obligations and
liabilities of the Seller, 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 law);
(e) the Seller is the legal and beneficial owner of the Equipment;
(f) (subject to the Financiers' and Surety Consent) at the Effective Time
the Equipment will be free from any Encumbrances whatsoever (save for
Excepted Liens); and
(g) the Seller has supplied and delivered to the Builders, and the
Builders have accepted, all of the Equipment in accordance with the
provision of Article XVI (OWNER'S Supplies) of the Construction
Contract and the Equipment satisfies the requirements of such
provisions.
2.2 Purchaser's representations and warranties. The Purchaser represents
and warrants to the Seller that the following statements are, at the
date of this Agreement, true and accurate:
(a) the Purchaser is duly incorporated under the laws of Delaware 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 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
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 Purchaser
or any of its assets or its constitutional documents; and this
Agreement has been so duly authorised, executed and delivered by the
Purchaser; and
(c) neither the execution, delivery and performance by the Purchaser of
this Agreement, nor the consummation of any of the transactions by the
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 Purchaser has duly executed such documents and instruments
as the Seller has provided to it).
2.3 Survival and repetition. 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 SALE OF THE EQUIPMENT
3.1 Sale of Equipment. The Seller and the Purchaser agree that at the
Effective Time the Seller shall sell and the Purchaser shall buy all
the Seller's right, title and interest in and to the Equipment for the
fixed amount of US$147,000,000 (the "Equipment Purchase Price"),
payable by the Purchaser in accordance with Clause 4.
3.2 Title and risk. At the Effective Time the title to the Equipment (and
the benefit of all vendor or supplier warranties relating to the
Equipment, to the extent that they are assignable) shall be
transferred to and vest in the Purchaser, and as between the Seller
and the Purchaser all risk in the Equipment shall pass to the
Purchaser.
3.3 Disclaimer. The Purchaser acknowledges and agrees that:
(a) (save as and to the extent expressly represented and warranted under
Clause 2.1) the Seller has not made or given and shall not be deemed
to have made or given any term, condition, representation, warranty or
covenant, express or implied (whether statutory or otherwise), as to
the suitability, capacity, age, state, value, quality, durability,
condition, appearance, safety, design, construction, operation,
performance, description, merchantability, fitness for use or purpose
or any particular use or purpose or suitability of the Equipment or
any part thereof, as to the absence of latent or other defects,
whether or not discoverable, as to the absence of any infringement of
any patent, trademark or copyright, or as to title to the Equipment or
any part thereof or any other representation or warranty whatsoever,
express or implied, with respect to the Equipment or any part thereof,
all of which are hereby excluded; and
(b) (save as aforesaid) the Purchaser is buying the Equipment on an "as
is, where is, and with all faults" basis and that the signing and
delivery by the Purchaser of the Effective Time Notice in accordance
with clause 3.4 of the Construction Novation Agreement shall be
conclusive evidence as between the Seller and the Purchaser that the
Equipment is complete, in good order and condition, of satisfactory
quality, fit for any purpose for which it may be intended or required,
suitable in all respects and in every way satisfactory.
3.4 Further assurances. The Seller agrees and undertakes to execute all
such documents and do all such actions and things as may be reasonably
required to give effect to the transfer of the Equipment to the
Purchaser, and further (through the Construction Supervisor) to
provide all such assistance as may be reasonably required to enable
the Purchaser, as "OWNER", to perform its obligations under paragraphs
1(b) and 4 of Article XVI (OWNER'S Supplies) of the Construction
Contract, in each case at the expense of the Seller.
4 EQUIPMENT PURCHASE PRICE
4.1 Credit agreement. The Equipment Purchase Price shall remain
outstanding until the Payment Date whereupon (subject to Clause 4.3
and 6) it shall become immediately due and payable.
4.2 Payment Date. The "Payment Date" shall be the earliest of the
following to occur:
(a) the Further Novation Date;
(b) the Builders Refund Date;
(c) the Mortgagee Sale Date;
(d) the Put Date;
(e) the On-Sale Date; and
(f) the Total Loss Proceeds Date.
4.3 Limited recourse to Purchaser. The Seller agrees hereby to limit its
recourse against the Purchaser, in respect of the Purchaser's
obligation and liability to pay the Equipment Purchase Price and
accrued interest in respect thereof (except Default Interest) (for the
purposes of this Clause 4, the "Purchaser's Liability"), in the manner
and subject to the terms and conditions set out in this Clause 4.3 and
Clauses 6 and 7. If the Payment Date is:
(a) the Further Novation Date, the Purchaser's Liability shall be fully
satisfied and discharged by the vesting of title to and transfer of
the Equipment in and to the Replacement Purchaser in accordance with
the provisions of clause 8 of the Construction Novation Agreement;
(b) the Builders Refund Date, the Purchaser's Liability shall be paid out
of, and recoverable by the Seller only from and to the extent of, all
amounts received or recovered (whether before or after arbitral award)
by the Purchaser (or by the Indenture Trustee) from the Builders by
way of refund or application of insurance proceeds under:
(i) paragraph 2 of Article X (Rescission by Owner); or
(ii) paragraph 4 of Article XVI (Owner's Supplies); or
(iii) paragraph 3(b) of Article XI (Owner's Default); or
(iv) paragraph 2(b) of Article XVII (Insurance),
of the Construction Contract;
(c) the Mortgagee Sale Date, the Purchaser's Liability shall be paid out
of, and recoverable by the Seller only from and to the extent of, the
proceeds of sale of the Vessel;
(d) the Put Date, the Purchaser's Liability shall be fully satisfied and
discharged by the vesting of title to and transfer of the Vessel in
and to the Seller in accordance with the provisions of Clause 10;
(e) the On-Sale Date, the Purchaser's Liability shall be paid out of, and
recoverable by the Seller only from and to the extent of, the proceeds
of sale of the Vessel;
(f) the Total Loss Proceeds Date, the Purchaser's Liability shall be paid
out of, and recoverable by the Seller only from and to the extent of,
the proceeds of the Insurances or requisition compensation payable to
the Purchaser (or to the Indenture Trustee) in respect of the total
loss or compulsory acquisition of the Xxxxxx.
0 XXXX LOAN
5.1 Credit agreement. The Seller agrees to provide to the Purchaser a
credit facility in several advances ( each an "Advance" and together
the "Hull Loan") to finance:
(a) the amount payable by the Purchaser to the Seller under clause 4.3 of
the Construction Novation Agreement;
(b) the final instalment of the Contract Price (as defined in the
Construction Contract) in the amount of US$198,000,000 (adjusted
upwards or downward in accordance with Article III of the Construction
Contract, if applicable) payable to the Builders on the date of
Delivery of the Vessel pursuant to paragraphs 4(e) and 5(c) of Article
II of the Construction Contract;
(c) all other amounts, if any, payable by the OWNER to the Builders under
or in connection with the Construction Contract;
(d) all amounts payable by the Purchaser from time to time (as directed by
the Construction Supervisor) in respect of the Vessel's insurances;
and
(e) all amounts payable by the Purchaser from time to time to the
Construction Supervisor pursuant to, and in respect of its services
under or arising out of, the Construction Supervisory Agreement.
5.2 Application of Advances. The Advances shall be made as follows:
(a) the Advance in respect of the amount referred to in Clause 5.1(a)
shall be deemed to be borrowed and applied as contemplated by the
Construction Novation Agreement at the Effective Time;
(b) the Advance or Advances in respect of the amounts referred to in
paragraphs (b) and (c) of Clause 5.1 shall be made and applied
(subject always to the relevant provisions of the Trust
Indenture) by direct payment to the Builders as and when such
amounts become due and payable under the Construction Contract;
(c) the Advances in respect of the amounts referred to in paragraphs
(d) and (e) of Clause 5.1 shall be made and applied (subject as
aforesaid) by payment as the Construction Supervisor shall
direct.
5.3 Authorisation of direct payments. The Purchaser hereby authorises the
Seller to effect such direct payment, which payment shall be deemed,
in each case, to constitute the borrowing by the Purchaser of the
relevant Advance.
5.4 Repayment. The Hull Loan shall, to the extent advanced and subject to
Clause 5.5, be repayable on the Payment Date.
5.5 Limited recourse to Purchaser. The Seller agrees hereby to limit its
recourse against the Purchaser, in respect of the Purchaser's
obligation and liability to repay the Hull Loan and accrued interest
in respect thereof (except Default Interest) (for the purposes of this
Clause 5, the "Purchaser's Liability") in the manner and subject to
the terms and conditions set out in this Clause 5.5 and Clauses 6 and
7. If the Payment Date is:
(a) the Further Novation Date, the Purchaser's Liability shall be fully
satisfied and discharged by the completion of the further novation of
the Construction Contract by the Purchaser to the Replacement
Purchaser in accordance with the provisions of Clause 8 of the
Construction Novation Agreement;
(b) the Builders Refund Date, the Purchaser's Liability shall be repaid
out of, and recoverable by the Seller only from and to the extent of,
all amounts received or recovered (whether before or after arbitral
award) by the Purchaser (or by the Indenture Trustee) from the
Builders or the Refund Guarantor by way of refund or application of
insurance proceeds under the provisions of the Construction Contract
referred to in paragraphs (i) to (iv) of Clause 4.3(b);
(c) the Mortgagee Sale Date, the provisions of Clause 4.3(c) shall apply
mutatis mutandis (with Purchaser's Liability construed as defined in
this Clause 5.5);
(d) the Put Date, the provisions of Clause 4.3(d) shall apply mutatis
mutandis (with Purchaser's Liability construed as defined in this
Clause 5.5);
(e) the On-Sale Date, the provisions of Clause 4.3(e) shall apply mutatis
mutandis (with Purchaser's Liability construed as defined in this
Clause 5.5);
(f) the Total Loss Proceeds Date, the provisions of Clause 4.3(f) shall
apply mutatis mutandis (with Purchaser's Liability construed as
defined in this Clause 5.5).
6 COMMON PROVISIONS
6.1 Pro tanto satisfaction. If and to the extent that any amount in
respect of which the Seller is entitled to have recourse against the
Purchaser under the provisions of Clauses 4.3 and 5.5 is received by
the Indenture Trustee and applied in accordance with the provisions of
the Trust Indenture (as amended by the Supplemental Indenture), such
application shall discharge in the same amount the aggregate
Purchaser's Liability under those Clauses 4.3 and 5.5.
6.2 Limited recourse. Notwithstanding the provisions of Clauses 4 and 5,
the Purchaser shall only be responsible to the Seller under this
Agreement to the extent provided for in Article 6 of the Supplemental
Indenture and those provisions are hereby incorporated into this
Agreement to that extent and shall be read and take effect as one with
the Agreement.
6.3 Commission. Any and all amounts received or recovered by or for the
account of the Purchaser in respect of the sale, total loss,
compulsory acquisition, transfer or other disposal of the Vessel shall
if and to the extent that such amounts exceed the aggregate
Purchaser's Liability under Clauses 4 and 5 (and subject to the terms
of the Trust Indenture (as amended by the Supplemental Indenture)) be
paid over to the Seller for its own account as a sales or claims
handling commission.
7 INTEREST
7.1 Interest. Subject to the provisions of this Agreement, interest on
the outstanding balance of the Hull Loan and the Equipment Purchase
Price shall accrue from the date of the Effective Time until the date
upon which the aggregate Purchaser's Liability under Clauses 4 and 5
is fully satisfied and discharged (or deemed to be so) in accordance
with the provisions of those Clauses. Accrued interest shall become
due and payable on the Payment Date and on a daily basis thereafter.
7.2 Normal rate of interest. The rate of interest on the Hull Loan and
the Equipment Purchase Price shall be equal to the rate per annum
applicable under the Notes (irrespective of the Seller's actual source
of funding of the Hull Loan and the Equipment Purchase Price or any
part thereof).
7.3 Default interest. If any amount to which the Seller is entitled to be
paid under Clause 4.3 or 5.5 is actually received by the Purchaser it
shall be paid over promptly to the Indenture Trustee or the Seller (as
applicable) in or towards satisfaction of the Purchaser's obligation
and liability to pay or repay the Equipment Purchase Price and the
Hull Loan. If any such amount is actually received and not paid over
within 2 New York banking days of written request by the Seller (or
Indenture Trustee), interest on such amount shall accrue on a daily
basis (both before and after judgement) from the date of such request
at a rate per annum equal to 2% over the rate applicable under Clause
7.2 and shall be payable by the Purchaser on demand (and such interest
shall be compounded monthly if and to the extent unpaid). For the
avoidance of doubt, Clause 6.2 shall apply to the Purchaser's
liability arising under this Clause 7.3.
8 COMPENSATION AND WARRANTY RIGHTS
8.1 Assignment of Delay Compensation Rights and Warranty Rights. In
acknowledgement of the Seller's commercial risk (as contractor under
the SDDI Contract), including in respect of delay or defective
condition of the Vessel, the Purchaser hereby assigns and agrees to
assign to the Seller, at the cost and expense of the Seller, any Delay
Compensation Rights and Warranty Rights which are vested or will vest
in the Purchaser to the extent that they are assignable.
9 SALES AGENCY
9.1 Sales agency. The Seller is hereby appointed by the Purchaser as its
sole and exclusive sales and marketing agent for the Vessel. Such
agency shall commence at the Effective Time and terminate only upon
the earliest of the following to occur (and shall otherwise be
irrevocable):
(a) delivery of a Put Option Notice pursuant to Clause 10;
(b) upon notice being given by the Purchaser to the Seller that it has
delivered a Further Novation Notice pursuant to Clause 8.2 of the
Construction Novation Agreement;
(c) termination of the sales agency by mutual agreement (with the prior
written consent of the Construction Supervisor, the Financiers and the
Surety);
9.2 Purpose. It is agreed that a purpose of the agency provisions in this
Clause 9 is to secure and protect the rights and interest of the
Seller in ensuring that the obligations and liabilities of the
Purchaser relating to the Vessel (including the Equipment) are
performed and discharged.
9.3 Agency terms. The Seller shall not be authorised to sell the Vessel
or any part of it (to the extent that the Purchaser holds title to the
Vessel or may acquire it pursuant to the Construction Contract and
this Agreement) or to approve or execute on behalf of the Purchaser
any document relating to the sale of the Vessel, but the Purchaser
agrees that it shall, at the Seller's cost and expense and upon
reasonable notice execute such agreement as may be requested by the
Seller or the on-purchaser for the sale of the Vessel, provided that
the same complies with the provisions of Clause 9.4 (and with the
terms of the Trust Indenture).
9.4 Sale terms. Any sale arranged by the Seller pursuant to Clause 9.1
shall comply with the following conditions:
(a) the sale may be absolute or on conditional sale or hire purchase terms
and the proceeds of such sale shall be applied as permitted by the
Trust Indenture;
(b) the sale shall be made upon terms which do not expose the Purchaser to
any liability which it would not have had but for the execution of the
relevant sale documents (save for liability for breach of the warranty
set out in this Clause 9.4(b)) and otherwise without any
representation, recourse or warranty whatsoever to or on the part of
the Purchaser, other than a warranty that the Purchaser shall pass
such title to the Vessel as the Purchaser has acquired, free and clear
of all Owner Liens;
(c) the sale shall be on an "as is, where is and with all faults" basis
and governed by the laws of New York save that the Purchaser hereby
undertakes upon any such sale to deliver and render to the on-
purchaser all such documents required for the re-registration of title
to the Vessel as the Seller shall furnish to the Purchaser for
execution; and
(d) such other terms as the Seller may determine is its sole discretion
not inconsistent with the terms set out in (a) to (c) above.
10 PUT OPTION
10.1 Put Option. The Seller hereby grants to the Purchaser an option (the
"Put Option") to sell all of the Purchaser's interest in the Vessel to
the Seller upon the terms set out in this Clause 10.
10.2 Exercise. The Put Option shall be exercisable at any time after the
occurrence of any of the events specified in Clause 10.3 by the
Purchaser delivering to the Seller a Put Option Notice specifying a
date (the "Put Date") not less than 5 days (unless the Seller consents
to a shorter period) and not more than 30 days after the date of such
notice upon which the transfer of title under Clause 10.4 is to be
effected. Such notice once given shall be irrevocable without the
consent of the Seller. For the avoidance of doubt, the exercise or
non-exercise of the Put Option shall, as between the Purchaser and the
Seller, be entirely at the discretion of the Purchaser.
10.3 Option trigger events. The events referred to in Clause 10.2 are:
(a) the Seller, as sales agent, notifies the Purchaser in writing that it
is unwilling or unable to arrange a sale of the Vessel as contemplated
by Clause 9; or
(b) the occurrence of the Termination Date; or
(c) sale of the Vessel, as contemplated by Clause 9, does not occur by 30
June 2000; or
(d) the Construction Supervisor breaches, or fails to perform or
discharge, in any material respect its indemnity obligations under the
Construction Supervisory Agreement;
(e) the failure of the Noteholders to provide the consent referred to in
Section 4.01 of the Supplemental Indenture; or
(f) an Indenture Event of Default under the Trust Indenture caused by or
attributable to the Seller as the Issuer thereunder shall have been
declared by the Indenture Trustee or the Note Holders and either (i)
the Notes have been accelerated or (ii) the Indenture Event of Default
has continued uncured and unwaived for a period of 60 days.
10.4 Transfer of title. A sale pursuant to the exercise of the Put Option
shall be effected by transfer of title to the Vessel to the Seller on
an "as is, where is and risk all faults" basis and otherwise without
any representation, recourse or warranty whatsoever to or on the part
of the Purchaser, other than a warranty that the Purchaser shall pass
such title to the Vessel as the Purchaser has acquired, free and clear
of all Owner Liens, provided that non-compliance with the requirement
to pass title free of Owner Liens shall not affect the Purchaser's
right to exercise the Put Option, subject only to whatever claims the
Seller may have against the Purchaser by reason of such non-
compliance. The Seller and the Purchaser shall execute all such
documents as may be required to give effect to such sale and transfer,
provided that the Purchaser's obligations in this regard shall be to
execute and deliver only such documents and instruments as the Seller
or the Indenture Trustee shall furnish to the Purchaser for signature
and to do only such other things as the Seller or the Indenture
Trustee shall direct as being necessary to accomplish such sale and
transfer.
10.5 Option consideration. In consideration of the sale and transfer of
the Vessel to the Seller in accordance with this Clause 10, the Seller
shall, and shall be deemed hereby to (with effect from the completion
of the sale and subject to the Purchaser's performance of its
obligations under Clause 10.4), release the Purchaser from all its
liabilities and obligations under this Agreement (including, without
limitation, in respect of the Purchaser's Liability under Clauses 4
and 5), other than its warranty contemplated by Clause 10.4.
11 PAYMENTS
11.1 Payments. All payments to be made by the Purchaser to the Seller
under this Agreement shall be made to the Collection Account (as
defined in the Trust Indenture) in US dollars in immediately available
funds and without set-off, counterclaim or deduction of any kind
whatsoever, save for any withholding or other deduction which the
Seller is required to make by applicable law.
12 MISCELLANEOUS
12.1 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.
12.2 Amendments. This Agreement may be amended only by an instrument in
writing signed by all of the parties to this Agreement.
12.3 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.
12.4 Assignment. Except as contemplated by Clause 12.5 the Purchaser shall
not be entitled to assign or transfer its obligations under this
Agreement without the prior written consent of the Seller and the
Indenture Trustee.
12.5 Collateral assignment. The Seller hereby consents to the collateral
assignment by the Purchaser (or any assignee of the Purchaser
permitted under Clause 12.4) in favour of the Indenture Trustee of all
or part of the Purchaser's rights under or arising out of this
Agreement.
13 NOTICES
13.1 Notices etc. Every notice, request, demand or other communication
under this Agreement 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 Seller to:
RBF Exploration Co.
901 Threadneedle
Xxxxxxx
Xxxxx 00000-0000
XXX
Fax: (1) (000) 000 0000
Attention: Project Director
(ii) to the Purchaser to:
BTM Capital Corporation125 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax:
Attention: Senior Vice President - Administration
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.
14 GOVERNING LAW AND JURISDICTION
14.1 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.
14.2 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.
14.3 Non-petition covenant. The Purchaser hereby agrees that until the
368th day following payment in full of any and all Notes, the
Purchaser will not institute, and will not join with others in
instituting, any involuntary bankruptcy or analogous proceeding
against the Seller under any bankruptcy, reorganisation, receivership
or similar law, domestic or foreign, as now or hereafter in effect.
This Agreement has been executed by the parties to this Agreement on the
date specified at the beginning of this Agreement.
Signed by )
)
for and on behalf of )
RBF EXPLORATION CO. )
in the presence of: )
Signed by )
)
for and on behalf of )
BTM CAPITAL CORPORATION )
in the presence of: )
SCHEDULE
FORM OF PUT OPTION NOTICE
To: RBF Exploration Co.
From: BTM Capital Corporation
Date [] 2000
Dear Sirs
re: Equipment Sale and Funding Agreement dated [] January 2000 (the
"Agreement")
1. We refer to the Agreement.
2. This Notice is the Put Option Notice and we hereby exercise our option
contained in clause 10 of the Agreement.
3. The Put Date shall be [] (or such other date within the period from []
to [] as we may mutually agree).
4. This Notice shall be governed by and construed in accordance with New
York law.
Yours faithfully
______________________________
for and on behalf of
BTM CAPITAL CORPORATION
