AMENDED AND RESTATED
BAREBOAT CHARTER
BETWEEN
TANTAWAN PRODUCTION B.V.
AND
TANTAWAN SERVICES, L L C
DATED
AS OF FEBRUARY 9, 1996
AMENDED AND RESTATED BAREBOAT CHARTER
TABLE OF CONTENTS
ARTICLE TITLE PAGE
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1. TRANSPORTATION, INSTALLATION AND COMMISSIONING OF THE FPSO............................................ 1
2. FPSO TO BE CHARTERED.................................................................................. 2
3. SERVICE............................................................................................... 2
4. DURATION OF CHARTER................................................................................... 2
5. GUARANTEES............................................................................................ 3
6. REPRESENTATIONS AND WARRANTIES........................................................................ 4
7. MAINTENANCE AND OPERATION............................................................................. 5
8. INSPECTION............................................................................................ 7
9. COMPENSATION.......................................................................................... 8
10. CHANGE IN LAW......................................................................................... 10
11. TAXES................................................................................................. 11
12. CONFLICTS OF INTEREST................................................................................. 11
13. LIENS AGAINST THE FPSO................................................................................ 11
14. INVENTORY............................................................................................. 13
15. GAS SALES AGREEMENT................................................................................... 13
16. DOWNTIME.............................................................................................. 13
17. INSURANCE............................................................................................. 14
18. INDEMNITY............................................................................................. 17
19. NONWAIVER OF DEFAULTS; NONRECOURSE.................................................................... 19
20. FORCE MAJEURE......................................................................................... 19
21. LAW AND ARBITRATION................................................................................... 20
22. NOTICES............................................................................................... 21
23. PURCHASE OPTION....................................................................................... 22
24. REVENUES.............................................................................................. 24
25. REDELIVERY OF FPSO.................................................................................... 24
26. REQUISITION........................................................................................... 25
27. GENERAL AND PARTICULAR AVERAGE........................................................................ 25
28. SALVAGE............................................................................................... 25
29. AUDIT................................................................................................. 25
30. DEFAULT............................................................................................... 26
31. REMEDIES.............................................................................................. 26
32. MISCELLANEOUS......................................................................................... 28
Appendix A TECHNICAL DESCRIPTION AND DESIGN BASIS
Appendix B1 FORM OF JOINT VENTURER GUARANTEE AND INDEMNITY
Appendix B2 FORM OF LESSOR PARENT COMPANY GUARANTEE AND INDEMNITY
Appendix C1
Appendix C2
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AMENDED AND RESTATED BAREBOAT CHARTER
This Amended and Restated Bareboat Charter (this "Agreement"), made and
entered into as of the 9th day of February 1996, by and between Tantawan
Production B.V., a Netherlands corporation ("Lessor"), and Tantawan Services, L
L C, a Delaware limited liability company ("Charterer"), acting through its Thai
branch.
W I T N E S S E T H
WHEREAS, the Petroleum Authority of Thailand ("PTT") and Thaipo Limited,
Thai Romo Limited and The Sophonpanich Co., Ltd. have entered into that certain
Gas Sales Agreement dated November 7, 1995 (the "Gas Sales Agreement") in
connection with the Petroleum Concession Agreement No. 1/2534/36, dated August
1, 1991, covering block B8/32 offshore Thailand, awarded by the Ministry of
Industry to Maersk Oil (Thailand) Ltd., Thaipo, Limited and Thai Romo, Limited,
and Supplementary Petroleum Concession No. 1 to Petroleum Concession No.
1/2534/36, dated March 6, 1992, whereby The Sophonpanich Co., Ltd., entered into
Petroleum Concession No. 1/2534/36 (collectively, the "Concession Agreement");
WHEREAS Thaipo Limited, Thai Romo Limited and Palang Sophon Limited
(formerly known as Sophon Thai Gulf Limited which was successor in interest to
The Sophonpanich Co. Ltd.) are currently the Concessionaires under the
Concession Agreement (collectively "the Concessionaires");
WHEREAS, Charterer desires to charter from Lessor on a bareboat basis a
Floating Production Storage and Offloading System known as the "Tantawan
Explorer" (the "FPSO"), for use in the Tantawan Field, Thailand;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Lessor and Charterer agree as follows:
1. TRANSPORTATION, INSTALLATION AND COMMISSIONING OF THE FPSO
Lessor shall be responsible for delivery (the "Delivery") of the FPSO to
Charterer in international waters offshore the yard at which the FPSO is
being converted (the "Delivery Site") as evidenced by a certificate of
delivery issued by Lessor and countersigned by Charterer. Prior to
Delivery, Lessor shall be fully responsible for and assume all risks with
respect to the FPSO. Charterer has hired an operator ("Operator") pursuant
to an Operating Agreement (the "Operating Agreement") to operate the FPSO
commencing with Delivery. Operator shall be responsible for completing all
work to be performed in respect of the FPSO until Field Acceptance, as
herein defined, has occurred, including transporting the FPSO from the
Delivery Site to the site in the Tantawan Field designated by Charterer
(the "Offshore Site"), hooking-up the FPSO on its anchoring system and
hydrostatic, electrical and instrumentation testing. Operator shall also be
responsible for commissioning the FPSO.
2. FPSO TO BE CHARTERED
Charterer hereby agrees to bareboat charter the FPSO as described in
APPENDIX A and its inventory from Lessor, for the period and upon the terms
and conditions stated herein. Lessor represents, undertakes and warrants
that at the time of Delivery the FPSO shall comply with the requirements of
the design basis set forth in APPENDIX A hereto (the "Design Basis") and
shall be properly documented and classed as ABS A1 Floating Production,
Storage and Offloading System, with no recommendations and as per the
particulars of APPENDIX A. Lessor shall before and at the time of Delivery
make the FPSO seaworthy and in every respect ready in hull, machinery and
equipment for service hereunder.
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3. SERVICE
Charterer shall have the full use of the FPSO at the Offshore Site and,
subject to Lessor's approval, at any other place in the world where its
operation is not prohibited by applicable law and/or regulations. Charterer
may subcontract to identified subcontractors certain of its obligations
hereunder, including, but not limited to, those relating to the operation,
maintenance and repair of the FPSO. However, such subcontracts shall not
relieve Charterer of such obligations.
4. DURATION OF CHARTER
4.1 The term (the "Initial Term") of this Agreement shall commence upon
Delivery. The Initial Term shall end upon a date eleven (11) years and six
(6) months after Hire Commencement Date (as defined in Article 9.1).
4.2 When the FPSO is hooked up at the Offshore Site and is ready to receive
hydrocarbons, when hydrostatic tests have been satisfactorily completed
and, to the extent possible, when electrical and instrumentation tests have
been satisfactorily completed, Charterer or its nominee will make an
inspection to determine whether such events have occurred. Within
twenty-four (24) hours of the inspection, Charterer will notify Lessor in
writing of whether or not such events have occurred. Lessor will cause
Operator to have available at the Offshore Site appropriate and experienced
staff to promptly correct all items found to be unacceptable. When
Charterer is satisfied that such events have occurred ("Field Acceptance"),
Charterer shall sign a certificate of field acceptance to this effect. (If
Charterer's affiliate shall fail to perform or cause to be performed the
work of installing pipeline end manifolds ("PLEMs") and the anchoring of
the mooring system for the FPSO at the Offshore Site and such failure shall
have directly and solely prevented the occurrence of Field Acceptance, then
Field Acceptance shall be deemed to have occurred as of the date Field
Acceptance would have occurred but for Charterer's actions or failure to
perform such action.) Field Acceptance by Charterer shall not be construed
as a waiver or discharge of any of the representations, warranties or
undertakings of Lessor in or with respect to this Agreement or the FPSO.
4.3 Upon the expiration of the Initial Term, Charterer shall have the option
to terminate this Agreement, extend this Agreement on an annual basis at
prices to be agreed upon by Lessor and Charterer, or purchase the FPSO
pursuant to Article 23. The election of any such option may be exercised by
Charterer's giving Lessor notice thereof at least 360 days prior to the
expiration of the Initial Term. If no such notice is received, Charterer
shall be deemed to have exercised its option to terminate this Agreement as
of the end of the Initial Term. If Charterer elects to extend this
Agreement, then Charterer and Lessor shall negotiate in good faith in an
effort to reach agreement prior to the end of the Initial Term on a Total
Bareboat Rate for the subsequent annual term. If no such agreement is
reached, Charterer shall have the additional option to purchase the FPSO as
aforesaid by notice to Lessor at least 180 days prior to the end of the
Initial Term. If no agreement on a Total Bareboat Rate for an extended term
is timely reached and if no notice of an election to purchase the FPSO is
timely given, Charterer shall be deemed to have exercised its option to
terminate this Agreement as of the end of the Initial Term. If an agreement
on Total Bareboat Rate for an extended term is reached, this Agreement
shall be extended until the first anniversary date of the end of the
Initial Term and this Article 4.3 shall apply at the end of said extended
term MUTATIS MUTANDIS.
5. GUARANTEES
5.1 Simultaneously with the execution of this Agreement, Charterer shall
furnish to Lessor several guarantees limited to field percentage interest
(the "Joint Venturer Guarantees") of Charterer's performance under this
Agreement which shall be given by Thaipo Limited, Thai Romo Limited and
Sophon Thai Gulf Limited (the "Joint Venturers") in the form of APPENDIX
B-1 hereto.
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5.2 As security for payment of Hire (as hereinafter defined) and other amounts
due to Lessor hereunder, Charterer shall grant or cause the Concessionaires
to grant (to the extent permitted by Thai law) a security interest to
Lessor in all oil produced from the Tantawan Field taken on board the FPSO
and the proceeds thereof, such security interest to be subordinate to
royalties, taxes and field operating expenses and granted on a PARI PASSU
basis, with all lenders financing the development of the Tantawan Field.
Charterer shall fully assist Lessor in perfecting such a security interest,
to the extent permitted by the laws of the United States of America and the
laws of Thailand. Charterer shall not agree to permit such other lenders to
perfect their security interests if Lessor is unable or elects not to
perfect its security interest.
5.3 Lessor has delivered to Charterer a Guarantee and Indemnity Agreement
("Lessor Parent Company Guarantee") in the form of APPENDIX B-2 hereto,
executed by its ultimate corporate parent, IHC Caland N.V., guaranteeing
the performance by Lessor of its obligations hereunder.
6. REPRESENTATIONS AND WARRANTIES
6.1 Lessor represents and warrants to Charterer that:
a) Lessor is a corporation duly organized and in good standing under the
laws of the Netherlands; has all requisite corporate power and all
material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so
to qualify could be reasonably expected to have a material adverse
effect on its business.
b) Lessor has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement; the execution,
delivery and performance by Lessor of this Agreement has been duly
authorized by all necessary corporate action on its part; and this
Agreement has been duly and validly executed and delivered by Lessor and
constitutes its legal, valid and binding obligation, enforceable against
Lessor in accordance with its terms except to the extent such
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditor's rights and (ii) the application
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
c) The execution and delivery of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result in
a breach of the articles of association (statuten) of Lessor or any
applicable law or regulation or any material agreement or instrument to
which Lessor is a party or by which it is bound or to which it is
subject or constitute a default under any such material agreement or
instrument.
d) All authorizations, approvals and consents of, and filings or
registrations with, any governmental or regulatory authority or agency,
as are at the date of Delivery necessary for the execution, delivery or
performance by Lessor of this Agreement and for the legality, validity,
or enforceability hereof, will have been obtained at such date and
thereafter will be maintained until the expiration or termination of
this Agreement.
6.2 Charterer represents and warrants to Lessor that:
a) Charterer is a corporation duly organized and in good standing under
the laws of the State of Delaware; has all requisite corporate power and
all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now
being or as proposed to be conducted; and is qualified to do business
and is in good standing in all jurisdictions in which the nature of the
business conducted by it makes such qualification
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necessary and where failure so to qualify could be reasonably expected
to have a material adverse effect on its business.
b) Charterer has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement; the execution,
delivery and performance by Charterer of this Agreement has been duly
authorized by all necessary corporate action on its part; and this
Agreement has been duly and validly executed and delivered by Charterer
and constitutes its legal, valid and binding obligation, enforceable
against Charterer in accordance with its terms except to the extent such
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditor's rights and (ii) the application
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
c) The execution and delivery of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result in
a breach of the certificate of incorporation or by-laws of Charterer or
any applicable law or regulation or any material agreement or instrument
to which Charterer is a party or by which it is bound or to which it is
subject or constitute a default under any such material agreement or
instrument.
d) All authorizations, approvals and consents of, and filings or
registrations with, any governmental or regulatory authority or agency,
as are at the date of Delivery necessary for the execution, delivery or
performance by Charterer of this Agreement and for the legality,
validity, or enforceability hereof, will have been obtained at such date
and thereafter will be maintained until the expiration or termination of
this Agreement.
e) Charterer will not, for the duration of the charter term, engage in
significant activities or own substantial assets located in the United
States of America.
6.3 OTHER THAN AS SPECIFICALLY STATED IN THIS AGREEMENT NEITHER PARTY SHALL BE
DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE TITLE, SEAWORTHINESS,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OF THE FPSO OR
ANY PART THEREOF.
7. MAINTENANCE AND OPERATION
7.1 Lessor agrees that the FPSO shall, for the duration of the charter term,
be in the full possession and at the absolute disposal for all purposes of
Charterer and under its complete control in every respect. Subject to
Article 7.3, as necessary to meet and maintain requirements of the American
Bureau of Shipping ("ABS"), Charterer shall maintain the FPSO in a good
state of repair. In addition, Charterer shall maintain the FPSO in
efficient operating condition and in accordance with good commercial
maintenance practice, and shall keep the FPSO with valid, unexpired
classification of the class as indicated in Article 2, free of
recommendations and notations affecting class. Charterer shall furnish
Lessor with one duplicate original or certified true copy of all class and
flag certificates issued or notated during the duration of the charter upon
their issuance or notation. Lessor shall keep all Thai, Bahamian (the
"Country of Registry") and other required certificates valid, up-to-date
and in full force at all times. Charterer shall maintain the following
maintenance reports, records, surveys and documents: Planned Maintenance
System, Continuous Survey of Machinery and such other reports, records,
surveys and documents as Lessor shall reasonably specify in writing.
Charterer shall provide copies of such documents to Lessor upon Lessor's
request. Lessor shall provide Charterer and Operator with all
authorizations which Charterer may reasonably require in order to
accomplish the actions required or permitted to Charterer under this
Article 7.
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7.2 Subject to Article 7.3, Charterer shall take immediate steps to have all
necessary repairs done within a reasonable time.
7.3 Notwithstanding the terms of Articles 7.1 and 7.2, Major Repairs necessary
to meet and maintain ABS requirements and the Design Basis shall be the
responsibility of Lessor provided always that Charterer has not caused the
need for such repairs as a result of Charterer's gross negligence or
willful misconduct. "Major Repairs" shall mean all repairs to the FPSO
other than: (a) repairs resulting from corrosion caused by a combination of
carbon dioxide and water in the gas stream, and (b) repairs costing less
than U.S. $100,000 per incident. Such Major Repairs shall be carried out by
Lessor and Charterer shall provide all necessary assistance.
7.4 In the event of any improvement, structural changes or new equipment
becoming necessary for the continued operation of the FPSO by reason of new
class requirements or compulsory legislation or in order to maintain the
FPSO in compliance with the Design Basis, then Lessor shall carry out such
work at its expense.
7.5 Charterer shall establish and maintain financial security of
responsibility in respect of oil or other pollution damage as required by
any government or other division or authority thereof, to enable the FPSO,
without penalty or charge, lawfully to enter and remain at the Offshore
Site in performance of this Agreement or in the case of removal of the FPSO
to another site as may be permitted by the terms hereof, at such other
site. Charterer shall make and maintain all arrangements by bond or
otherwise as may be necessary to satisfy such requirements at Charterer's
sole expense.
7.6 Charterer shall at its own expense and by its own procurement, except as
stated to the contrary elsewhere, man, victual, operate, supply, fuel and
repair the FPSO whenever required during the duration of this Agreement and
shall pay all charges and expenses of every kind and nature whatsoever
incidental to its use and operation of the FPSO under this Agreement. The
Master, officers, crew and production personnel of the FPSO shall be the
servants of Charterer for all purposes whatsoever.
7.7 Charterer shall comply with the regulations of the Country of Registry
and, to the extent applicable, the Kingdom of Thailand. Charterer will
cause the FPSO to comply at all times with all applicable laws, treaties
and conventions and with all rules and regulations issued thereunder and to
have on board, when required thereby, valid certificates showing compliance
therewith.
7.8 During the duration of this Agreement the FPSO shall retain her present
name and shall remain under and fly the Bahamian flag, provided, however,
that Charterer shall have the liberty to paint the FPSO in its own colors,
install and display its funnel insignia and fly its own house flag.
Painting and repainting, installment and re-instalment shall be for
Charterer's account.
7.9 (a) Subject to Article 7.4 and Lessor's approval, which shall not be
unreasonably withheld, Charterer shall have the right to add additional
equipment, modify existing equipment or connect additional production
facilities. Any such additions or modifications, including the installation
thereof, shall be at the sole cost, risk and expense of Charterer. Such
additions, modifications and connections so installed shall, without
necessity of further act, become part of the FPSO and the property of
Lessor; PROVIDED, HOWEVER, that so long as no Event of Default shall have
occurred and be continuing, any such additions, modifications and
connections not required to be installed in order to meet the requirements
of Article 7.4 hereof and not installed as replacements for property
included on board the FPSO on the date of Field Acceptance may be removed
(so long as such removal can be accomplished without damage to the FPSO) by
Charterer, at its own expense and risk, at any time during, or at the
expiration of, the Initial Term upon reasonable prior notice, whereupon
such equipment shall, without necessity of further act, become the property
of Charterer.
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(b) Charterer may, in the ordinary course of maintenance, repair or
overhaul of the FPSO, remove any item of property constituting a part of
the FPSO; PROVIDED, HOWEVER, that such item is replaced as promptly as
possible by an item of property which is free and clear of all liens,
encumbrances and rights of others and is in as good operating condition, is
as seaworthy and has a value and utility at least equal to the item of
property being replaced. Any item of property removed from the FPSO as
provided in the preceding sentence shall remain the property of Lessor
until replaced in accordance with the terms of such sentence, but shall
then, without further act, become the property of Charterer. Any such
replacement item of property shall, without further act, become the
property of Lessor and be deemed part of the FPSO as defined herein for all
purposes hereof.
7.10 Charterer shall have the use of all items of inventory, equipment and
spares being part of or on board the FPSO on the date of Delivery, which
Lessor undertakes to provide. Such inventory will be specified pursuant to
Article 14.
8. INSPECTION
8.1 Lessor shall have the right at any reasonable time to inspect or survey
the FPSO itself or to instruct a duly authorized third-party surveyor to
carry out such survey on its behalf to ascertain the condition of the FPSO,
and to satisfy itself that the FPSO is being properly repaired, maintained
and operated. Such inspections and surveys shall be for Lessor's account.
Charterer shall provide, free of charge to Lessor, upon reasonable request
by Lessor, transportation from the shore base to the FPSO and vice versa on
its regular flights and, to the extent available, accommodations, catering
and communication on board for such inspectors or surveyors.
8.2 Charterer shall also permit Lessor to inspect the FPSO's log books
whenever requested and shall immediately furnish Lessor with full
information regarding any casualties or other accidents or damage to or
caused by the FPSO.
9. COMPENSATION
9.1 As full compensation for the performance by Lessor of its obligations
under this Agreement, Charterer shall pay Lessor a hire ("Hire"). Hire
shall accrue in accordance with this Article 9 commencing at 0001 hours
local time at the Offshore Site on the date ("Hire Commencement Date") on
which both (a) Field Acceptance, and (b) the earlier of (i) December 20,
1996 or (ii) the date on which hydrocarbons begin flowing through the FPSO,
shall have occurred.
Except as otherwise provided herein, Hire shall continue to accrue until
the date when the FPSO is redelivered to Lessor under the terms of this
Agreement. Hire for the first ten (10) years after the Hire Commencement
Date shall be paid at the rate of $65,752 per day, and Hire for the final
eighteen (18) months of the Initial Term shall be paid at the rate of
$43,227 per day (as applicable, the "Total Bareboat Rate") in the manner
provided for in Article 24, subject to adjustment by mutual agreement of
the parties, and, except as otherwise specifically provided herein, no
other compensation or reimbursement shall be due to Lessor for the
performance of its obligations hereunder.
9.2 Payment of Hire shall be made monthly in arrears, without any discount,
adjustment, set off or deduction, except as specifically set forth in this
Article 9 or otherwise in this Agreement. Lessor shall provide invoices to
Charterer covering each payment of Hire at least ten (10) days before due.
Payment of Hire shall be made to such U.S. Dollar account or accounts with
such European office of a first class bank as Lessor shall designate in
writing. Lessor shall not change such designations without Charterer's
consent, which consent shall not be withheld unless Charterer determines
that:
(i) such change would increase Charterer's costs; or
(ii) such change would expose Charterer to the risk of double payment.
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The first payment of Hire shall be paid in same day funds before the close
of business at the place of payment on the first business day of the
calendar month beginning after the Hire Commencement Date. Except as
otherwise provided in this Agreement, subsequent payments of Hire shall be
paid in same day funds at the place of payment on the first business day of
each applicable calendar month during the Initial Term or an extended term
("Hire Payment Date"). Hire shall accrue on a daily basis; provided that
Hire for any periods that constitute less than a calendar day shall be a
pro rata portion of Hire for such calendar day. If a Hire Payment Date
falls on a day which is not a banking day at the place of payment, payment
shall instead be made on the next succeeding day that is a banking day at
such place. Any Hire paid but not earned shall be refunded on the next Hire
Payment Date (or as otherwise provided under this Agreement) to Charterer
by Lessor.
9.3 Upon request by Charterer, Lessor shall promptly pay to Charterer, or at
the option of Charterer, at any time following an Event of Default by
Lessor hereunder or a default under the Lessor Parent Company Guarantee,
Charterer shall be entitled to deduct from the payments of Hire:
(i) actual or reasonably estimated disbursements, if any, for Lessor's
account;
(ii) any advances to the master of the FPSO (the "Master") or to Lessor's
affiliates, contractors, subcontractors, or agents for expenses or
disbursements for Lessor's account;
(iii) any previous overpayment of Hire, including payments made with
respect to periods of Downtime;
(iv) any sums due in respect of Lessor's failure to meet Lessor's
performance undertakings under this Agreement; and
(v) any other sums or credits to which Charterer is entitled under this
Agreement.
If a deduction is made based on an estimate, the next Hire payment shall be
adjusted, if necessary, to reflect any difference between such estimate and
the actual amount of deduction that Charterer is able to verify. All
deductions from Hire shall be verified by Charterer by production of
vouchers or supporting documentation corresponding to the deductions within
thirty (30) days after the applicable Hire Payment Date.
9.4 Notwithstanding anything contained in this Article 9 to the contrary, the
final payment of Hire hereunder shall be made on the date of redelivery of
the FPSO to Lessor. Deductions, to the extent permitted by Article 9.3,
from said final payment shall be those reasonably estimated by Charterer if
the actual amounts have not been determined and also less the amount
estimated by Charterer to become payable by Lessor for fuel and supplies on
redelivery of the FPSO to Lessor as provided in Article 25.
9.5 (a) Should the FPSO become an actual total loss, Hire shall cease at the
time of its loss or, if such time is unknown, at the time when the FPSO was
last heard of. Should the FPSO become a total loss of any other kind, if
approved in writing by Charterer in accordance with sub-clause (d) below,
including, without limitation, a constructive, compromised, agreed or
arranged total loss (a "constructive total loss"), Hire shall cease at the
time of the casualty resulting in such loss. Within ninety (90) days after
Hire has ceased under this Article 9.5, all monies owing to Charterer under
the provisions of this Agreement at the time Hire ceases under this Article
9.5 shall be paid to Charterer, and likewise Lessor shall be paid the net
amount of all sums due from Charterer. If the FPSO shall have been missing
for at least forty-eight (48) hours when a payment of Hire would otherwise
be due, such payment shall be postponed until the safety of the FPSO is
ascertained.
(b) Should the FPSO become an actual total loss or a constructive total
loss (i) for reasons other than negligence or willful misconduct of Lessor
Group and (ii) in circumstances where no Event of Default by Lessor or its
affiliates, its Guarantor or the Operator (a "Lessor Party") has occurred
and is continuing, this Agreement shall be deemed to be terminated as of
the date on which the
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obligation to pay Hire ceases in accordance with Article 9.5(a) without
prejudice to (A) the payment obligations of Lessor and Charterer as
described in Article 9.5(a) and (B) any other provisions which would
otherwise survive termination of this Agreement which, for the avoidance of
doubt, does not include any obligation to rebuild the FPSO or procure a new
FPSO.
(c) Should the FPSO become an actual total loss or a constructive total
loss either (i) for reasons where the negligence or willful misconduct of a
member of Lessor Group is a contributing factor or (ii) in circumstances
where an Event of Default by a Lessor Party has occurred and is continuing,
then, irrespective of such total loss, Charterer shall have the remedies
set out in Article 31 hereof.
(d) Lessor and its affiliates shall not be entitled to (i) claim under
this Agreement or (ii) reach agreement with the insurers on the hull
policies taken out by Lessor and its affilates that, in either case, the
FPSO constitutes a total loss of any kind other than an actual total loss
without the prior written approval of Charterer.
(e) An actual total loss or a constructive total loss will not constitute
in and of itself an Event of Default.
9.6 In the event Charterer fails to make any payment (including without
limitation any payment of Hire) due and owing to Lessor under this
Agreement, Lessor shall so notify Charterer. If Charterer fails to pay
amounts due and owing within five (5) business days after receipt of such
notice, Charterer shall pay to Lessor, in addition to all other amounts
then due and owing, a late fee at a rate equal to one-month LIBOR plus two
percent (2%) on the amounts then due and owing for the period of said fifth
(5th) day until paid without prejudice to any other remedies under this
Agreement.
9.7 All payments of Hire and other amounts due hereunder from one party to the
other shall be made in U.S. Dollars by interbank transfer. Except as
otherwise provided herein, all sums due by one party to the other shall be
paid within 30 days of receipt of invoice.
9.8 Charterer shall be responsible for obtaining and shall use all reasonable
efforts to obtain exchange control approval for payments under this
Agreement.
10. CHANGE IN LAW
10.1 The Total Bareboat Rate is based on the tax laws of Thailand and Holland
as of the date of this Agreement and assumes a tax burden of 1.1% of the
Total Bareboat Rate. In the event there are any changes in Thailand tax
laws or their interpretation which affect the cost to the Lessor of
chartering the FPSO, the Total Bareboat Rate shall be revised upwards or
downwards to take into account such change in costs; provided, however,
Charterer shall not be obligated to pay any Thai, Dutch or U.S. tax burden
up to a total amount equal to 2.2% of the Total Bareboat Rate and further
provided Lessor shall use all reasonable efforts to maintain its present
status under the tax treaty between Thailand and the Netherlands and shall
take all reasonable actions to prevent or minimize any such increased
expenses. Any increase in the total tax burden on the Total Bareboat Rate
in excess of 2.2% of the Total Bareboat Rate attributable to any changes in
Dutch tax laws shall be for Lessor's account. Any adjustment of said
compensation shall be effective as of the effective date of the change in
such tax burden; provided, Lessor shall furnish to Charterer the necessary
supporting documentation evidencing such changes within a reasonable time.
10.2 The parties hereto do not believe that any U.S. taxes are applicable to
payments made under this Agreement. To the extent that U.S. withholding
taxes are assessed on Hire payable hereunder, Hire shall be increased such
that the net Hire received by Lessor hereunder shall not be affected by
such U.S. withholding taxes. Lessor agrees to use its best efforts to
promptly obtain a refund of any such U.S. income taxes which have been
withheld in excess of Lessor's U.S. tax obligations and to promptly repay
such refund to Charterer.
8
11. TAXES
Subject to Article 10, all taxes (including income and withholding taxes)
which are due with respect to the payment of the Total Bareboat Rate
pursuant to this Agreement shall be paid by Lessor or reimbursed to
Charterer by Lessor, except that Thailand value added taxes ("VAT"), other
Thailand sales/use taxes and Thailand customs and import duties applicable
to the FPSO, shall be paid by Charterer or reimbursed to Lessor by
Charterer. Charterer or its designee on the behalf of the Concessionaires
shall be designated as the importer of the FPSO and be responsible for
customs clearance and obtaining import licenses on the FPSO.
12. CONFLICTS OF INTEREST
Neither Lessor nor any of its subcontractors shall pay any fee, commission,
rebate or other thing of value to, or for the benefit of, any employee of
Charterer, its principals or any of its or their affiliates, nor shall
Lessor do business with any company knowing that the results thereof might
benefit an employee of the Charterer, its principals or any of its or their
affiliates.
13. LIENS AGAINST THE FPSO
13.1 a) Neither Charterer nor the master of the FPSO nor any other person
shall have any right, power or authority to create, incur or permit to
exist upon the FPSO any lien, charge or encumbrance other than
Permitted Encumbrances. Lessor may fasten to the FPSO in a conspicuous
place and maintain during the term of this Agreement a notice reading
as follows:
NOTICE OF CHARTER
This Vessel is mortgaged to , and is under
charter to Tantawan Services, L L C With the exception of
such mortgage, under the terms of said charter, neither
the charterer, any subcharterer, the master of this
Vessel, nor any other person has the right, power or
authority to create, incur or permit to be placed or
imposed upon this Vessel, or its profits, any lien
whatsoever, other than liens for master's and crew's wages
or salvage or as otherwise provided under said charter.
b) Lessor warrants that it has not created and covenants that it will not
create or permit to exist, and shall indemnify, hold harmless and defend
Charterer against any loss which Charterer may sustain by reason of, any
Owner Encumbrances.
c) "Permitted Encumbrances" shall mean (i) the rights of Charterer under
this Agreement, (ii) the rights of Lessor under this Agreement, (iii)
during the Initial Term or any extended term, liens for current master's
and crew's wages and salvage, (iv) Lessor Group's mortgage of the FPSO
in favor of certain lending institutions ("Lenders") provided Charterer
shall have received satisfactory assurances from the Lenders as to the
exercise of Charterer's rights under this Agreement in the absence of an
Event of Default by Charterer and the expiration of all cure periods
relevant thereto, and (v) liens arising in tort which are covered by
insurance; and "Permitted Encumbrance" shall mean any of the foregoing.
d) "Owner Encumbrances" shall mean any liens, security interests or
encumbrances resulting from voluntary action by Lessor Group, as
hereinafter defined, taken without the prior written approval of
Charterer and not taken as the result of an Event of Default by
Charterer.
13.2 Charterer agrees that if a libel or a complaint in admiralty (for purposes
of this Article 13.2 called a "claim") shall be filed against the FPSO, or
if the FPSO shall be otherwise levied upon or taken into custody or
detained or sequestered by virtue of proceedings in any court or tribunal
or by any government or other authority because of any claim (excluding a
claim against Lessor), Charterer shall at its own expense within 15 days
thereafter cause the FPSO to be released and each such
9
claim to be discharged (except to the extent that the same shall be
contested by Charterer in good faith by appropriate proceedings and shall
not affect the continued use of the FPSO). Charterer agrees forthwith to
notify Lessor by telegram or telex, confirmed by letter, of each such claim
involving amounts in excess of $500,000 and of the release and discharge of
each such claim. Charterer agrees to advise in writing at least once in
each three-month period as to the status and merits of all such claims not
released and discharged within 15 days as provided above, which either are
not bonded or affect the ability of Charterer to use the FPSO in the
ordinary course of its business. Charterer agrees to indemnify, hold
harmless and defend Lessor against any loss which Lessor may sustain by
reason of any liens, security interests or encumbrances resulting from
voluntary action by Charterer Group taken without the prior written
approval of Lessor and not taken as the result of an Event of Default by
Lessor.
14. INVENTORY
A complete inventory of the FPSO's entire outfit, equipment (including
vessel equipment and supplies, cabin, crew and galley equipment),
furniture, furnishings, appliances, spare and replacement parts and all
unbroached consumable stores, fuel and lubricants onboard shall be jointly
taken within thirty (30) days following Field Acceptance by representatives
of Lessor and Charterer or by an independent outside firm as may be
mutually agreed upon. A similar inventory shall be taken and mutually
agreed upon at the time of Redelivery.
15. GAS SALES AGREEMENT
Charterer and Lessor recognize that compliance with the terms of the Gas
Sales Agreement will be required by the parties thereto, and Lessor and
Charterer will generally cooperate in facilitating such compliance by the
parties thereto.
16. DOWNTIME
16.1 Downtime shall mean any calendar day on which the FPSO is unable to
process sufficient gas so as to deliver (and actually deliver) into the
export pipeline the lesser of (i) 150 million cubic feet ("Mmcf") of gas or
(ii) the amount of gas that Charterer, its affiliates and designees are
capable of delivering to the FPSO, as determined in good faith by Charterer
on the basis of demonstrated measured data; provided that any shortfall in
gas delivery on a given calendar day may be made up so as to avoid Downtime
hereunder over the three succeeding calendar days. Downtime shall also mean
any calendar day on which the FPSO is unable to process and deliver into
the FPSO storage tanks the lesser of (i) 40,000 barrels of liquids or (ii)
the amount of liquids that Charterer, its affiliates and designees are
capable of delivering to the FPSO, as determined in good faith by Charterer
on the basis of demonstrated measured data; provided, however, that no
Downtime shall be deemed to have occurred pursuant to this sentence if the
FPSO's inability to process the liquids so required results solely from the
FPSO's inability to process the quantity of gas required by the immediately
preceding sentence. Downtime shall also mean any calendar day on which the
FPSO is unable to offload into shuttle tankers the oil stored on the FPSO,
other than for adverse weather conditions as specified in the Terminal
Regulations Manual, as defined in the Operating Agreement and in
Charterer's reasonable opinion this adversely affects the normal operation
of the fields served by the FPSO. For purposes of this Article 16.1,
"process" shall be interpreted to mean the processing on board the FPSO of
gas and liquids having the properties given in the Design Basis in
circumstances which conform to the design criteria given in the Design
Basis.
16.2 Downtime shall occur notwithstanding the fact that maintenance or repairs
(including Major Repairs but excluding those resulting from Charterer's
gross negligence or willful misconduct) are occurring. Downtime shall not
occur during the period that Charterer is adding or modifying equipment or
connecting additional facilities pursuant to Article 7.9 hereof.
16.3 Lessor shall give Charterer sixty (60) days' prior notice of any Major
Repairs to the FPSO.
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16.4 Downtime shall be deemed not to occur during an event which is a Force
Majeure event hereunder.
16.5 A Downtime Penalty Period shall mean any year based upon a historical
rolling year beginning after the earlier of (i) February 28, 1997 or (ii)
the Contractual Delivery Date, as defined in the Gas Sales Agreement. If
Charterer desires to fix the commencement of the Downtime Penalty Period by
reference to a Contractual Delivery Date based on completion of the seventy
two (72) hour test ("Test") referred to in clause 6.3 of the Gas Sales
Agreement, Charterer shall be required to obtain confirmation from Lessor
prior to commencement of the Test that the FPSO is able to process and
deliver Sales Gas, as defined in the Gas Sales Agreement, consistent with
the PTT nomination made pursuant to said clause 6.3. During any Downtime
Penalty Period (i) Charterer shall not be obligated to pay Lessor the Total
Bareboat Rate in respect of any Downtime occurring after the first thirty
(30) days of Downtime and (ii) if the first thirty (30) days of Downtime
are consecutive, in addition to the foregoing, Charterer shall not be
obligated to pay Lessor the Total Bareboat Rate for said first thirty
(30)-day period (and if Charterer has previously paid any or all of the
Total Bareboat Rate in respect of said first thirty (30) day period, Lessor
shall promptly refund such amount to Charterer).
17. INSURANCE
17.1 Lessor shall maintain in force or shall cause one of its affiliates to
maintain during the term of this Agreement the following insurance
coverages. Deductibles for insurance obtained pursuant to Article 17.1 a),
b) and c) shall be shared equally by Charterer and Lessor; all other
deductibles shall be for the account of Lessor.
a) Hull and Machinery and Increased Value Insurance on the FPSO in the
amount of one hundred twenty percent (120%) of the estimated value of
the FPSO on the London Institute Hull Clauses, or equivalent, including
Collision Liability to the extent not provided under Article 17.1 (d)
below.
b) Confiscation and Expropriation Insurance on the FPSO in the amount of
one hundred twenty percent (120%) of the estimated value of the FPSO.
c) War Risk Insurance on the FPSO subject to London Institute Hull War
Risk and Strikes Clauses, or equivalent, in the amount of one hundred
twenty percent (120%) of the estimated value of the FPSO, and War Risk
Protection and Indemnity Clauses with a limit of one hundred twenty
percent (120%) of the estimated value of the FPSO.
d) Protection and Indemnity Insurance on the FPSO, subject to the rules of
a Protection and Indemnity Club who are members of the International
Group of P & I Clubs. The P & I entry to include that proportion, if
any, of Collision Liabilities not covered under Article 17.1 (a) above.
e) Workmen's Compensation and Employer's Liability Insurance covering
Lessor Group's (as hereinafter defined) employees for statutory benefits
as set out and required by local law in the area of operation or any
area in which Lessor Group may become legally obligated to pay benefits.
Appropriate maritime coverage shall be included.
f) Comprehensive General Liability and Automobile Liability Insurance
covering premises and operations, independent contractors and
contractual liability, as well as all owned, hired and non-owned
vehicles. Minimum policy limits for personal injury and property damage
shall be:
i) Comprehensive General Liability: US$25,000,000 single limit per
occurrence;
ii) Automobile Liability: US$1,000,000 single limit per occurrence or
such greater amount as required by applicable law.
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g) Pollution Insurance for the FPSO for US$300 million per occurrence,
subject to market availability.
17.2 Before commencing performance of this Agreement, Lessor shall furnish
Charterer with Certificates of Insurance indicating:
a) the kinds and amounts of insurance as required;
b) the insurance company or companies providing the aforesaid coverages;
c) the effective and expiration dates of policies;
d) that Charterer will be given thirty (30) days' (7 days for War Risk
insurance policy) written advance notice of any material change,
non-renewal or cancellation of any policy;
e) the territorial limits of all policies; and
f) that Charterer Group (as hereinafter defined) has been named as an
additional insured on all policies referred to in Article 17.1 (except
Article 17.1e)) with waivers of subrogation on the policies in Article
17.1.
17.3 Charterer shall maintain in force during the term of this Agreement the
following insurance coverages. Deductibles shall be for the account of
Charterer.
a) Workman's Compensation and Employer's Liability Insurance covering
Charterer Group's employees for statutory benefits as set out and
required by local law in the area of operation or area in which
Charterer Group may become legally obligated to pay benefits.
Appropriate maritime coverage shall be included.
b) Comprehensive General Liability and Automobile Liability Insurance
covering premises and operations, independent contractors and
contractual liability, as well as all owned, hired and non-owned
vehicles. Minimum policy limits for personal injury and property damage
shall be:
i) Comprehensive General Liability: US$25,000,000 single limit per
occurrence; and
ii) Automobile Liability: US$1,000,000 single limit per occurrence or
such greater amount as required by applicable law.
c) Seepage and Pollution Insurance on normal industry terms for the
reservoir and oil field installations for US$50 million per occurrence.
17.4 Charterer shall furnish Lessor with Certificates of Insurance indicating:
a) the kinds and amounts of insurance as required;
b) insurance company or companies providing the aforesaid coverages;
c) effective and expiration dates of policies;
d) Lessor will be given thirty (30) days' written advance notice of any
material change, non-renewal or cancellation of any policy;
e) the territorial limits of all policies; and
f) that Lessor Group has been named as an additional insured on all
policies referred to in Article 17.3 b) and c) with waivers of
subrogation on the policies in Article 17.3.
Charterer shall use reasonable efforts to obtain an agreement from PTT to
indemnify Lessor Group and Charterer Group for losses and damages resulting
from operations of shuttle tankers used or hired to transport oil from the
FPSO.
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17.5 Except as specifically provided above in this Article 17, Lessor and
Charterer shall work toward establishing insurance values, amounts,
coverages and deductibles on forms and with insurers which are compatible
and consistent with the standards of prudent owners and operators of
vessels of similar type, size, age, location and activity as the FPSO.
18. INDEMNITY
18.1 Charterer Group shall have no liability or responsibility whatsoever for
injury, illness or death of or property loss or damage (including to the
FPSO) sustained by Lessor and its affiliates, associates, co-venturers,
subcontractors at all levels, sub-suppliers, lenders and their respective
shareholders, officers and employees and agents and the Master and crew of
the FPSO (hereinafter all such persons and companies called "Lessor Group")
howsoever caused or arising. Lessor shall protect, defend, indemnify and
hold harmless Charterer and its affiliates, associates, co-venturers, co-
venturers of subsidiaries and affiliates, and subcontractors at all levels
and their respective shareholders, officers, employees and agents
(hereinafter all such companies and persons called "Charterer Group") from
and against any loss, damage, claim, expense, suit or liability (including
attorneys' fees and legal costs) as a result of such injury, illness or
death or property loss or damage.
18.2 Lessor Group shall have no liability or responsibility whatsoever for
injury, illness or death or property loss or damage (including oil and gas
reservoirs, pipelines and platforms in which Charterer Group has an
interest) sustained by Charterer Group, howsoever caused or arising,
including the unseaworthiness of the FPSO or otherwise. Charterer shall
protect, defend, indemnify and hold harmless Lessor Group from and against
any loss, damage, claim, expense, suit or liability (including attorneys'
fees and legal costs) as a result of such injury, illness or death or
property loss or damage.
18.3 Subject to the provisions of Articles 18.5, 18.6 and 18.9, with respect to
claims by third parties (which shall exclude Charterer Group and Lessor
Group) to the extent arising out of Lessor Group's negligence, Lessor
agrees to indemnify, defend and save Charterer Group harmless from and
against any and all losses, claims, demands, liabilities, damages, suits or
actions in rem or otherwise (including expenses and attorneys' fees) for
loss or damage to or injury, illness or death of such third parties.
18.4 Subject to the provisions of Articles 18.5, 18.6 and 18.9, with respect to
claims by third parties (which shall exclude Charterer Group and Lessor
Group) to the extent arising out of Charterer Group's negligence, Charterer
agrees to indemnify, defend and save Lessor Group harmless from and against
any and all losses, claims, demands, liabilities, damages, suits or actions
in rem or otherwise (including expenses and attorneys' fees) for loss or
damage to or injury, illness or death of such third parties.
18.5 From and after Field Acceptance, Charterer shall be solely responsible for
(i) seepage or pollution from reservoirs, pipelines, platforms and other
property related thereto owned or leased by Charterer Group while such
property is in Charterer Group's custody and control, including cost of
cleanup of same, and (ii) with respect to amounts in excess of $10,000,000
per occurrence, pollution from the FPSO (including its risers). Charterer
agrees to indemnify, defend and save Lessor Group harmless from and against
any and all losses, claims, demands, liabilities, damages, suits or actions
in rem or otherwise (including expenses and attorneys' fees) for loss or
damage to Lessor Group arising out of the seepage or pollution described in
clause (i) and the pollution (for amounts in excess of $10,000,000 per
occurrence) described in clause (ii). With respect to said pollution from
the FPSO, Charterer shall conduct cleanup operations and Lessor shall
provide all reasonable assistance; ultimate financial responsibility for
the cost of such cleanup (to the extent less than $10,000,000) will be
allocated by mutual agreement of the parties or pursuant to applicable law.
If Charterer causes crude oil or gas described in this Article 18.5 to be
insured, Charterer shall cause Lessor Group to be named as co- insured in
such policy as their interests may appear.
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18.6 a) Notwithstanding Article 18.5, Lessor shall be solely responsible for
all liabilities, costs, expenses, penalties and/or fines arising from
or caused by any pollution originating in or above the surface of the
water from (i) spills of fuels, bunkers, slop tanks, lubricants, motor
oils, pipe dope, paints, solvents, ballast, bilge, garbage and sewage
in Lessor Group's possession or control (including the FPSO) and (ii)
any property or equipment (other than the FPSO) owned, leased or
provided by the Lessor Group while such equipment is in a member of
Lessor Group's custody and control, including costs of cleanup of
same.
b) Notwithstanding Article 18.5, Charterer shall be solely responsible for
all liabilities, costs, expenses, penalties and/or fines arising from or
caused by any pollution originating in or above the surface of the water
from (i) spills of fuels, bunkers, slop tanks, lubricants, motor oils,
pipe dope, paints, solvents, ballast, bilge, garbage and sewage in
Charterer Group's possession or control (other than the FPSO) and (ii)
any property or equipment owned, leased or provided by the Charterer
Group (other than the FPSO) while such equipment is in a member of
Charterer Group's custody and control, including costs of cleanup of
same.
18.7 All excuses from liability for one party and all indemnities given by one
party to the other party or to the other party's Group pursuant to this
Agreement, including but not limited to the indemnities in this Article 18,
shall apply regardless of the sole or concurrent negligence or gross
negligence or breach of duty or strict liability of the parties to be
indemnified but shall not apply in the case of willful misconduct.
18.8 As used herein, "affiliate" shall mean any company or legal entity which
(i) controls either directly or indirectly a party hereto, (ii) which is
itself effectively controlled directly or indirectly by such party or (iii)
is directly or indirectly effectively controlled by a company or entity
which directly or indirectly controls such party. "Control" means the right
to exercise forty percent (40%) or more of the voting rights in the
appointment of the directors of the company concerned.
18.9 In no event shall either party's Group be liable for any loss of
production, loss of oil or gas, loss of revenue or profit, loss of
commercial advantage, demurrage, or any consequential or indirect losses or
damages suffered by the other party's Group as a result of any act or
omission or negligence, unseaworthiness of the FPSO or otherwise, and each
party shall protect, defend, indemnify and hold harmless the other party's
Group with respect to its Group's losses in this regard.
18.10 The provisions of this Article 18 are intended to specifically allocate
certain liabilities between the parties hereto in the events described in
this Article 18 but shall not be interpreted to waive or excuse
performance by any party of its representations, warranties and covenants
set forth in this Agreement.
19. NON-WAIVER OF DEFAULTS; NON-RECOURSE
19.1 Any failure by either party at any time, or from time to time, to enforce
or require the strict keeping and performance of any of the terms or
conditions of this Agreement, or to exercise a right hereunder, shall not
constitute a waiver of such terms or conditions.
19.2 Notwithstanding any provision herein to the contrary, Lessor's recourse in
the event of occurrence of any Event of Default hereunder shall be as
provided in Article 31 hereof, PROVIDED THAT Lessor shall have no recourse
to the assets of Charterer (other than its rights with respect of the
FPSO), but shall be permitted to exercise any and all rights under and with
respect to the guarantees and collateral referred to in Article 5.
20. FORCE MAJEURE
20.1 Any loss or damage or delay in, or failure of performance of either party
shall not constitute default hereunder or give rise to any claims for
damages if and to the extent that such loss, damage, delay or failure is
caused by "Force Majeure."
14
20.2 In this Agreement "Force Majeure" shall denote any event the happening of
which could not be prevented even though a person against whom it happened
or threatened to happen were to take such appropriate care as might be
expected of a Reasonable and Prudent Operator, as hereinafter defined.
"Reasonable and Prudent Operator" when used to describe the standard of
care to be exercised by a party in performing its obligations means the
degree of diligence and prudence and foresight reasonably and ordinarily
exercised by experienced operators engaged in the same line of business
under the same or similar circumstances and conditions and when used to
determine the action that would be required of a party means the action an
experienced commercial operator engaged in the same line of business under
the same or similar circumstances and conditions would take in the exercise
of such due diligence, prudence and foresight. Notwithstanding Article
20.1, Force Majeure shall not release either party from any obligation to
give a notice or make any payment (including, in particular, any payment of
Hire) under this Agreement except where the making of a payment is
prevented by a Force Majeure event affecting the transfer of monies by the
payor. Any payments which are so prevented from being made by reason of
Force Majeure shall, upon the cessation of the Force Majeure event, be made
as soon as practicable thereafter in addition to any other amounts which
may then be payable by such party under this Agreement.
20.3 Events which may, subject to Article 20.2, be considered Force Majeure
events shall include but not be limited to acts of government, strikes,
lock-outs, acts of public enemy, wars whether declared or undeclared,
blockades, insurrection, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, washouts, civil disturbances,
explosions, breakage or accident to machinery or lines of pipe, freezing of
wells or lines of pipe, partial or entire failure of wells, inability to
obtain necessary materials or supplies due to changes in laws and
regulations, material changes in the obligations of the concessionaire
under the Concession Agreement, as herein defined, imposed unilaterally by
the Government of Thailand, and inability of PTT to accept delivery of
natural gas delivered to PTT under the Gas Sales Agreement where such
inability constitutes an event of Force Majeure under the Gas Sales
Agreement which has been declared.
20.4 A party claiming relief on account of Force Majeure shall:
(i) as soon as practicable give notice to the other party of the happening
said to constitute Force Majeure, such notice to include full
information about the circumstances and a statement of the steps and
time believed necessary to remedy the failure but neither party shall
be obligated to settle or prevent any strike or other industrial
action except on terms which, in its sole judgment, are acceptable to
it; and
(ii) proceed as a Reasonable and Prudent Operator at its own expense to
remedy the failure as rapidly as possible.
21. LAW AND ARBITRATION
21.1 This Agreement shall be construed and governed in accordance with the
maritime law of the United States of America and, to the extent such law is
inapplicable, with the laws of the State of New York excluding any conflict
of law rules. In connection with the interpretation of any exhibit hereto,
the choice of law of this Agreement shall prevail.
21.2 Any dispute arising under or in connection with this Agreement shall be
settled by arbitration in New York City under the rules of the American
Arbitration Association, except as provided herein. The party requesting
arbitration shall be entitled to have arbitration of the dispute
consolidated with any other pending dispute under this Agreement or with
any dispute arising under the Operating Agreement. The party requesting
arbitration shall serve upon the other party a written demand for
arbitration with the name and address of the arbitrator appointed by it,
and such other party shall, within ten (10) days thereafter, appoint an
arbitrator, and the two arbitrators so named, if they can agree, shall
appoint a third, and the decision or award of any two shall be final and
15
binding upon the parties. In no event shall any dispute or consolidated
group of disputes be determined by more than three arbitrators. Should the
party upon whom the demand for arbitration is served fail or refuse to
appoint an arbitrator within ten (10) days, the single arbitrator shall
have the right to decide alone, and his decision or award shall be final
and binding upon the parties. The arbitrator(s) shall have the discretion
to impose the cost of the arbitration proceedings, including reasonable
attorney's fees upon the losing party, or divide it between the parties on
any terms which may appear just. Any decision or award rendered hereunder
may be made and entered as a rule or judgment of any Court, in any country
having jurisdiction.
21.3 Judgment upon the arbitration award rendered may be entered in any Court
having either personal or in rem jurisdiction, or application may be made
to such Court for a judicial acceptance of the award and an Order of
Enforcement, as the case may be.
22. NOTICES
22.1 Notices or other communications required to be given by either party
pursuant to this Agreement shall be written in English and sent in letter
form or by telex or facsimile to the address of the other party set forth
in Article 22.2 below, or to such other address as may from time to time be
designated by the other party through notification of such party. The dates
on which notices shall be deemed to have been effectively given shall be
determined as follows:
22.1.1 Notices given by personal delivery shall be deemed effectively
given on the date of personal delivery;
22.1.2 Notices given in letter form shall be deemed effectively given on
the seventh day after the date mailed (as indicated by the
postmark) by registered airmail, postage prepaid, or the third day
after delivery to an internationally recognized courier service;
22.1.3 Notices given by telex shall be deemed effectively given on the
first business day following the date of transmission, as indicated
on the document in question; and
22.1.4 Notices given by facsimile shall be deemed effectively given on the
first business day following the date of transmission, as indicated
on the document in question.
22.2 Except as otherwise provided in Article 22.1, the parties shall give all
notices and send all invoices and communications under this Agreement to:
22.2.1 If to Lessor:
Tantawan Production B.V.
557's - Gravelandseweg
3119 XT Schiedam
The Netherlands
Attention: R. Smulders
31-10-4260430 (ph)
31-10-4731434 (fax)
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22.2.2 If to the Charterer:
Tantawan Services, LLC with a copy to:
18th Floor, B.B. Building Pogo Producing Company
54 Soi Asoke, Sukhumvit 21 Rd. 5 Greenway Plaza, Suite 2700
Kwaeng Klongtoey Nua, Khet Houston, TX 77046-0504
Klontoey Attn: Legal Dept.
Bangkok 10110, Thailand (713) 297-5000 (phone)
Attn: Resident Manager (713) 297-4970 (fax)
(662) 260-7151 (phone)
(662) 260-7150 (fax)
22.3 All references in this Agreement to a business day shall refer to a day
when both parties are open for business or, in the case of payments under
Article 9, a day when banks at the place of payment are open for business.
23. PURCHASE OPTION
Provided that an Event of Default by Charterer under Article 30 of this
Agreement is not existing, Charterer shall have the right to exercise an
option (the "Purchase Option") to purchase the FPSO (including its on-board
spare parts) from the Lessor free from all encumbrances (except
encumbrances created by Charterer), (i) at the expiration of the Initial
Term for a price of five million dollars ($5,000,000), or (ii) at any time
during the Initial Term or during any extended term at a price to be
determined by reference to Appendix C-1, or (iii) at any time during the
Initial Term or at any time during an extended term, (A) if an Event of
Default by Lessor has occurred under Article 30 of this Agreement and
Charterer has elected, pursuant to Article 31.1(b) hereof to exercise this
Purchase Option, or (B) if, in the opinion of Charterer (and, if requested
by Lessor, in the opinion of Charterer's outside counsel), such purchase is
required by relevant governmental authorities pursuant to applicable laws,
rules, regulations or agreements with such governmental authorities, for a
price determined by reference to Appendix C-2; provided that, in each of
the forgoing cases, such purchase price shall be reduced by any amounts due
from Lessor under this Agreement which have been established at the time of
such purchase; provided further, in the case of a purchase pursuant to
subsections (i) or (ii) above only, the FPSO shall not be moved to operate
in another field outside Thailand or, if within Thailand, (i) to a field in
which a current or future member of the Charterer Group (as defined in
Article 18.1) does not have an interest, or (ii) unless pursuant to the
Concession Agreement. Any Thailand sales or transfer taxes attributable to
the sale will be paid by Charterer. If Charterer is exercising its Purchase
Option pursuant to (i) or (iii)(A) above, Charterer shall provide notice of
its intent to do so in accordance with the relevant provisions of this
Agreement. If Charterer is exercising its Purchase Option pursuant to
(iii)(B) above, Charterer shall provide notice of its intent to do so at
the earliest reasonable practicable opportunity. If Charterer is exercising
its Purchase Option pursuant to (ii) above, Charterer shall provide notice
of its intent to do so at least 180 days prior to such purchase. Upon
notification by Charterer of its intent to exercise the Purchase Option,
Lessor shall use reasonable diligence to cause the release of all liens
(except liens caused or created by Charterer Group) on the FPSO to be
effective not later than closing of the sale.
In the event the Purchase Option is exercised, unless agreed otherwise
between Charterer and Lessor, Lessor shall sell the FPSO and Charterer
shall purchase the FPSO "as is," safely afloat, at the time and place of
redelivery of the FPSO pursuant to Article 25, at which time:
a) Lessor shall deliver to Charterer:
(i) A certificate signed by a duly authorized executive of Lessor to
the effect that the FPSO is free from all encumbrances (except
encumbrances created by Charterer),
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(ii) A certificate signed by the appropriate government official of
the Country of Registry showing Lessor as the sole owner of the
FPSO and no liens of record other than encumbrances to be
satisfied out of the FPSO's sales proceeds,
(iii) One or more bills of sale executed by duly authorized officers of
Lessor on behalf of Lessor conveying full title of the FPSO to
Charterer in suitable form for recording or registering title,
(iv) Copies of class and trading certificates (where relevant to its
class) for the FPSO valid at the time of re-delivery,
(v) All government approvals necessary to transfer the FPSO to
Charterer and, if requested by Charterer, to delete the FPSO from
registry in the Country of Registry and any country claiming
jurisdiction over Lessor's power to sell the FPSO,
(vi) Copies of all log books, classification certificates, manuals and
other documents in the Lessor's or Lessor's manager's possession
related to the FPSO's operation and maintenance, and
(vii) Physical possession of the FPSO.
b) On delivery Charterer shall pay the purchase price to Lessor or its
designee by transfer to Lessor's account then designated for receipt of
Hire payments.
c) Each party shall deliver to the other party such additional
documentation or take such additional action as such other party may
reasonably request or as may be customary at the time with respect to
the sale of vessels registered in the Country of Registry and which is
not in conflict with the provisions of this Agreement, provided that
Lessor shall not be required to arrange or pay for a drydocking or
inspection of the FPSO for purposes of said sale and purchase.
24. REVENUES
Lessor and Charterer have entered into that certain Accounts Agreement
dated December 19, 1996, among the Joint Venturers, Thaipo Limited as Field
Operator, Lessor, Charterer, Operator and ABN AMRO Bank N.V., Bangkok
Branch (the "Accounts Agreement"). If the Accounts Agreement terminates as
the result of a Lessor Event of Default under this Agreement and,
subsequent to such termination, such Lessor Event of Default is cured prior
to Charterer exercising its rights to terminate this Agreement under
Article 31 of this Agreement, then Lessor and Charterer shall as soon as
reasonably practicable enter into a new accounts agreement in form and
substance substantially similar to the Accounts Agreement. The obligations
of Charterer under the said Accounts Agreement (and any successor accounts
agreement entered into pursuant to the preceding sentence) shall be deemed
for purposes of the Joint Venturer Guarantees to be obligations of
Charterer hereunder.
25. REDELIVERY OF FPSO
The FPSO shall at the expiration or termination or as provided in Article
31.2 (b) of this Agreement (unless lost or a constructive total loss or
under requisition or purchased by Charterer) be redelivered to Lessor at
the Offshore Site (the "Redelivery"), as is - where is, in accordance with
the following conditions. The FPSO shall be redelivered to Lessor properly
documented and in class with no recommendations, fair wear and tear not
affecting class excepted. Charterer shall have discharged substantially all
free crude oil (other than tank bottoms) from the FPSO. Any expenses of
degassing or demucking conducted within 12 months of Redelivery shall be
borne by Charterer. The FPSO shall upon Redelivery have her class
certificates valid. Charterer will render the FPSO available to Lessor at
the time of Redelivery for survey, inspection, testing and inventory check
at
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Lessor's expense. Charterer at its expense shall meet its Redelivery
obligations and the charter period shall be extended for the period
necessary to make any deficiencies good. During any such period the
compensation payable under Article 9 before Redelivery shall not be so
payable provided Charterer's obligations herein are met promptly and
expeditiously. Prior to and during the Redelivery of the FPSO, Charterer
shall provide such reasonable assistance to Lessor as Lessor requests in
order to effect taking Redelivery of the FPSO, including but not limited to
temporary office facilities onshore and transportation from Charterer's
shore base to the FPSO and vice versa for Lessor's personnel and supplies
as is reasonable under the circumstances. On Redelivery, Lessor shall be
free (i) to cut and either remove or abandon the anchor chains, the risers,
buoyancy tanks and the control umbilicals (but so as to leave no hazard to
shipping and to avoid damage to Charterer's wells, wellheads, pipelines,
PLEMS or other equipment) and to remove the FPSO from the Offshore Site but
without having any obligation to remove subsurface equipment or materials
including piling or any other obligation to clear the Offshore Site and
(ii) to remove any free crude oil not previously removed by Charterer at
Charterer's expense.
26. REQUISITION
26.1 If the FPSO is seized, expropriated, confiscated, nationalized or
requisitioned by any authority (other than the government, or any
department, commission or agency thereof, of the Country of Registry,
whether a legally constituted governmental authority or otherwise), and
such seizure, expropriation, confiscation, nationalization or requisition
has continued for a period of at least 30 consecutive days, this Agreement,
at the option of Charterer, may continue in force or may be terminated at
any time during the period of seizure, expropriation, confiscation,
nationalization or requisition, provided that in the event Charterer elects
to terminate, notice shall be given to Lessor by Charterer and
compensation, as specified in Article 9, shall cease as of the date
occurring 30 days prior to the date of notice of termination and the FPSO
shall be deemed to have been Redelivered to Lessor by Charterer. If
Charterer has previously paid any or all of such compensation in respect of
such 30 day period, Lessor shall promptly refund such amount to Charterer.
26.2 In the event the FPSO is seized, expropriated, confiscated, nationalized
or requisitioned by the government, or any department, commission or agency
thereof, of the Country of Registry, whether a legally constituted
governmental authority or otherwise, this Agreement shall be deemed
terminated and compensation, as specified in Article 9.1, shall cease as of
the date of seizure, expropriation, confiscation, nationalization or
requisition, and the FPSO shall be deemed to have been redelivered to
Lessor by Charterer.
26.3 In the event any seizure, expropriation, confiscation, nationalization or
requisition of the FPSO occurs, Lessor shall use its best efforts to
arrange the release of the FPSO therefrom (including, without limitation,
changing the Country of Registry of the FPSO) and shall afford Charterer
the opportunity to join in any such action.
27. GENERAL AND PARTICULAR AVERAGE
General average if any shall be adjusted according to the York-Antwerp
Rules 1994 or any subsequent modification thereof current at the time of
the casualty.
28. SALVAGE
All salvage and towage shall be for Lessor's benefit and the cost of
repairing damage occasioned thereby shall be borne by Lessor.
29. AUDIT
Lessor shall maintain its records which pertain to Articles 9 and 11 hereof
in accordance with generally accepted international accounting principles
and will keep copies of all applicable
19
documents, forms and third-party invoices, etc., and will permit Charterer
to inspect such records at any time upon request during regular business
hours.
30. DEFAULT
The following events by either party hereto or any guarantor ("Guarantor")
under a Joint Venturer Guarantee or Lessor Parent Company Guarantee (any
such Guarantee being defined as a "Guarantee") shall constitute an Event of
Default:
a) failure to observe any material covenant, condition or agreement to be
performed or observed by said party hereunder or any Guarantor under the
Guarantees; or
b) any representation or warranty made herewith or pursuant hereto or
pursuant to any of the Guarantees shall prove to be incorrect at any
time in any material respect; or
c) said party or Guarantor shall become insolvent or bankrupt or consent
to the appointment of a trustee or receiver, or a trustee or receiver
shall be appointed for said party or for a substantial part of its
property without its consent and shall not be dismissed for a period of
thirty (30) days, or bankruptcy, reorganization or insolvency
proceedings shall be instituted by or against said party and, if
instituted against said party, shall not be dismissed for a period of
thirty (30) days, and at any time thereafter so long as the same shall
be continuing; or
d) an Event of Default with respect to that party or its Guarantor shall
have occurred under the Operating Agreement (for purpose of this
paragraph d) only, an Event of Default by Operator under the Operating
Agreement shall be deemed an Event of Default by Lessor hereunder); or
e) A Force Majeure Event shall have occurred preventing payment by either
party and such failure to pay continues unremedied for a period of 60
consecutive days.
31. REMEDIES
31.1 Upon the occurrence of an Event of Default by Lessor or its affiliate and
at any time thereafter so long as the same shall be continuing, Charterer
may, at its option, upon ninety (90) days' notice thereof to Lessor,
declare this Agreement to be in default; and, at any time thereafter, so
long as Lessor shall not have remedied or have commenced and at all times
thereafter diligently acted to remedy all outstanding Events of Default,
Charterer (a) may terminate this Agreement, compensation as specified in
Article 9.1 shall cease as of the date of termination and Charterer shall
redeliver the FPSO to Lessor as if the FPSO were being redelivered pursuant
to Article 25 hereof, or (b) accelerate its right to exercise the Purchase
Option at a price to be determined by reference to Appendix C (offsetting
any damages which have been established at the time of such purchase
against the purchase price of the FPSO) and terminate compensation under
Article 9.1. Lessor shall be liable for any and all damages to Charterer
resulting from termination of this Agreement and for all legal fees and any
other costs and expenses whatsoever incurred by Charterer by reason of the
occurrence of any Event of Default or by reason of the exercise by
Charterer of any remedy hereunder, including, without limitation, any costs
and expenses incurred by Charterer in connection with Redelivery of the
FPSO. Notwithstanding the remedies available to Charterer under this
Article 31, the provisions of Article 18.9 shall apply so as to limit the
damages of Charterer and any guarantors of Charterer's obligations
hereunder, PROVIDED that if Lessor shall breach its obligation other than
for reasons wholly outside its control to sell the FPSO to Charterer if
Charterer exercises its Purchase Option under sub-clause (b) above, Lessor
shall be liable to such guarantors for direct damages to the guarantors or
any of their affiliates which are parties to the Gas Sales Agreement
arising under Articles XV or XVIII of the Gas Sales Agreement. To the
extent that such guarantors (and such affiliates) claim direct damages
under the Gas Sales Agreement as provided in the preceding sentence, such
guarantors and affiliates must use their reasonable efforts to mitigate
their damages. Charterer must use reasonable efforts to mitigate its
damages.
20
31.2 Upon the occurrence of an Event of Default by Charterer or its affiliate
(provided that such Event of Default did not arise out of or result from
actions, or omissions to act, of Operator under the Operating Agreement)
and at any time thereafter so long as the same shall be continuing, Lessor
may, at its option, upon ninety (90) (or, in the case of an Event of
Default based on a failure to pay money when due (including a failure by
reason of Force Majeure), thirty (30)) days' notice thereof to Charterer,
declare this Agreement to be in default; and, at any time thereafter, so
long as Charterer shall not have remedied or (except as to an Event of
Default based on a failure to pay money when due) have commenced and at all
times thereafter diligently acted to remedy all outstanding Events of
Default Lessor may do, and Charterer shall comply with, one or more of the
following, as Lessor in its sole discretion shall so elect, to the extent
permitted by, and subject to compliance with any mandatory requirements of
applicable law then in effect. Lessor must use reasonable efforts to
mitigate its damages and shall apply any amounts received from the sale or
re-charter (for a period equal to the remainder of the term of this
Agreement) of the FPSO (after deducting Lessor's direct out-of-pocket
expenses of making the FPSO ready for sale or re-charter) to reduce the
amount of any charter hire and other amounts payable by Charterer to Lessor
pursuant to the last paragraph of this Article 31.2. To the extent that
Charterer fails to maintain in force any insurance coverage described in
Article 17.3 and is not diligently acting to replace such coverage, Lessor
shall be entitled to obtain such insurance for the account of Charterer.
a) Lessor may terminate this Agreement.
b) Upon written demand, Lessor may cause Charterer to, and Charterer
hereby agrees that it will, redeliver the FPSO to Lessor within a
reasonable period of time not to exceed 45 days and in the same manner
and in the same condition as if the FPSO were being redelivered pursuant
to Article 25 hereof; or Lessor or its agent, at Lessor's option, may,
but shall be under no obligation to, retake the FPSO irrespective of
whether Charterer or any other person may be in possession of the FPSO,
upon 24 hours prior notice but without prior demand and without legal
process, and for that purpose Lessor or its agent may take possession
thereof.
c) Lessor or its agent may sell the FPSO at public or private sale, with
notice to Charterer, or otherwise may dispose of, hold, use, operate,
charter (whether for a period greater or less than the balance of what
would have been the charter period for the FPSO in the absence of the
termination of Charterer's rights to the FPSO) to others or keep idle,
all on such terms and conditions and at such place or places as Lessor
may determine.
In addition, Charterer shall be liable for and shall pay to Lessor within
thirty days after Lessor takes redelivery or possession of the FPSO a lump
sum equal to any and all additional Hire payable during the Initial Term
and for all legal fees and any other costs and expenses whatsoever incurred
by Lessor by reason of the occurrence of any Event of Default or by reason
of the exercise by Lessor of any remedy hereunder, including, without
limitation, any costs and expenses incurred by Lessor in connection with
the Redelivery or retaking of the FPSO.
31.3 Each party's remedies referred to in this Article 31 are intended to be
the exclusive remedies of such party under this Agreement; PROVIDED,
HOWEVER, that either party may enforce performance of these remedies by all
legal or equitable means.
31.4 No express or implied waiver by either party of any Event of Default shall
be in any way, or be construed to be, a waiver of any further or subsequent
Event of Default.
32. MISCELLANEOUS
32.1 a) All terms and conditions of this Agreement shall be binding upon and
shall enure to the benefit of the parties hereto and their respective
successors and permitted assigns. Any purported assignment in
contravention of this Article 32 shall be null and void.
21
b) Charterer shall be entitled to assign its rights, duties and
obligations hereunder to an affiliate without the consent of Lessor
PROVIDED that Lessor receives simultaneously with such assignment
guarantees from the Joint Venturers in respect of such assignee's
obligations in the terms set out in Article 5 hereof.
c) Any party having rights under this Agreement shall be entitled to
pledge and/or assign its rights and, to the extent possible, and if
requested, its duties and obligations under this Agreement by way of
security to any lending institution providing financing for the
transactions contemplated hereby or related to the development of the
Tantawan Field or a collateral agent on their behalf provided that any
such pledge or assignment does not release the assignor or any guarantor
of the assignor's obligations hereunder, from any of their respective
obligations to the Lessor or the Charterer as the case may be.
d) Charterer shall not subcharter the FPSO to any party including an
affiliate without the prior written consent of Lessor such consent not
to be unreasonably withheld.
Save as specifically provided above, neither party hereto shall be entitled
to assign any rights or obligations under this Agreement without the prior
consent of the other party, not to be unreasonably withheld. Charterer
shall maintain a written record that identifies Lessor as the person
entitled to payments under this Agreement. In the event of an assignment by
Lessor of any of its rights under this Agreement, such assignment will be
reflected on the record maintained by Charterer.
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32.2 This Agreement may be executed in one or more counterparts, all of which,
taken together, shall constitute one original document.
32.3 Except as specifically provided herein to the contrary, each party hereto
intends that this Agreement shall not benefit or create any right or cause
of action to any person other than parties hereto or their permitted
assignees.
32.4 The making, execution and delivery of this Agreement by the parties hereto
have been induced by no representation, statements, warranties or
agreements other than those herein expressed or set forth in the attached
exhibits or schedules. This Agreement and such exhibits or schedules embody
the entire understanding of the parties, and there are no further or other
agreements or understandings, written or oral, in effect between the
parties relating to the subject matter hereof, unless expressly referred to
by reference herein.
32.5 This Agreement may be amended or modified and any condition herein
specified may be waived by mutual consent of the parties by a written
instrument executed on behalf of the parties.
32.6 The captions contained in this Agreement are for convenience of reference
only and do not form a part of this Agreement and shall not affect the
interpretation hereof.
32.7 If any portion of this Agreement shall be deemed by an arbitration
tribunal or a court of competent jurisdiction to be unenforceable, the
remaining portions shall be valid and enforceable only if, after excluding
the portion deemed to be unenforceable, the remaining terms hereof shall
provide for the consummation of the transactions contemplated herein in
substantially the same manner as originally set forth at the date this
Agreement was executed.
32.8 Each of the parties hereto intends this Agreement will be treated as a
lease of the FPSO from Lessor to Charterer. Neither Charterer, Lessor, nor
any of their respective affiliates will take any action nor file any
document with any governmental authority including, without limitation, any
tax return, which is inconsistent with such characterization of this
Agreement as a lease.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in duplicate as of the 9th day of February, 1996.
TANTAWAN PRODUCTION B.V. TANTAWAN SERVICES, L L C
By: /s/ G. HAYTHORNTHWAITE By: THAILAND FINANCE COMPANY, its
- --------------------------- Managing Member
Name: G. HAYTHORNTHWAITE
TITLE: Managing Director By: /s/ JOHN W. ELSENHANS
-------------------------------------
Name: John W. Elsenhans
TITLE: Vice President and Treasurer
24