Party”, or collectively as the “Parties”).
PREAMBLE
The Transferor and the Remaining Party have entered into Service contract № ТВН-0235/13 dd. 05.04.2013 as amended and added from time to time (the “Old Contract”).
With effect from and including the Novation Date (as defined in clause 1):
the Transferor wishes to transfer to the Transferee, by way of novation, the Transferor’s rights and obligations under the Old Contract (except to the extent set out in clause 2.1.1 below) such that in effect a new contract is entered into between the Transferee and the Remaining Party with identical terms to the Old Contract, save as otherwise stipulated herein (“New Contract”);
the Transferee agrees: (i) to accept the transfer to itself of the aforesaid rights and obligations; and (ii) to enter into the New Contract with the Remaining Party; and
the Remaining Party agrees: (i) to the transfer to the Transferee of the Transferor’s rights and obligations under the Old Contract; and (ii) to accept the Transferee as its sole counterparty with respect to the New Contract
subject always to terms and conditions of this Novation Agreement.
NOW, THE PARTIES AGREE AS FOLLOWS:
Novation Date
The Novation Date shall be the date of signing of the present Agreement, designated at the beginning of the document. At the same time the Novation covers relatiions between the Parties starting from 17 th of February 2014.
2. Transfer, Release, Discharge, Undertakings, Amendments.
2.1 With effect from and including the Novation Date and in consideration of the mutual representations, warranties and covenants contained in this Novation Agreement:The Remaining Party and the Transferor are each released and discharged from further obligations to each other with respect to the Old Contract and their respective rights against each other thereunder are terminated; provided that such release and discharge shall not affect any rights, liabilities or obligations that have arisen, been exercised or have accrued under the Old Contract prior to the Novation Date, including but not limited to: (i) payments or other obligations due and payable or due to be performed prior to the Novation Date; (ii) payments or other obligations due on or after the Novation Date but relating to performance prior to the Novation Date and (iii) liabilities incurred prior to the Novation Date; and all such payments, liabilities and obligations shall be paid, satisfied or performed by the Remaining Party or the Transferor (as appropriate) in accordance with the terms of the Old Contract; and
subject to 2.1.1 above, the Transferee and the Remaining Party shall each be deemed to enter into the New Contract under which:
The Transferee and the Remaining Party shall each accept the other as its sole counterparty; and
(b) the Remaining Party and the Transferee shall each undertakes to observe, perform, discharge and be bound by all the liabilities and obligations towards the other and shall acquire all rights on the same terms as those in the Old Contract as amended herein (and, for the avoidance of doubt, as if the Transferee were the Transferor).
This Novation Agreement: (i) shall be treated as constituting all actions, confirmations and undertakings, required under the Old Contract, of each of the Transferor, the Transferee and the Remaining Party in order to permit the novation hereby effected; and shall take effect according to its terms notwithstanding any provision to the contrary contained in the Old Contract.
The New Contract shall have the same terms and conditions as the Old Contract save for the following amendments:
All references to JSC RN Holding shall be deemed to be references to Rosneft Oil Company (Russia).
For the purposes of all provisions in the New Contract concerning the service of notices, the address of the Transferee is Russia, 115035, Moscow, Sofiyskaya Embankment, 26/1, and, if required for the purpose of any such provision, the person for whose attention such notices shall be marked is Elena Chernushich, EAChernushich@rosneft.ru
For the purposes of all provisions in the New Contract concerning payment obligations, the Transferee’s bank account is the following :
ROSNEFT Oil Company
26/1 Sofiyskaya emb., Mosсow 115035, Russia
Account 40702978500000000080 with
Russian Regional Development Bank
Mosсow, Russia
SWIFT: RRDBRUMM
Corr. account 55.047.419 with
Raiffeisen Zentralbank Oesterreich AG
Am Stadtpark, 9 A-1030 Wien, Austria.
SWIFT: RZBA AT WW
Counterparts.
3.1. This Novation Agreement (and each amendment, modification and waiver in respect of it) may be executed in any number of counterparts, each of which shall constitute an original, but all of which taken together shall be deemed to constitute one and the same agreement.
3.2. This Novation Agreement may be delivered by facsimile or other electronic means, and signatures by facsimile or email scanned delivery shall create valid and binding obligations of the Party executing with the same force and effect as if such signature was an original thereof.
3.3. In case payments are made by the Transferee to the Remaining Party pursuant to the Old Contract that may be subject to withholding tax under the effective laws of the Russian Federation (including but not limited to demurrages, penalties and interest), then:
• If as of the day of payment the Remaining Party presents the Transferee a notarized copy of the certificate of tax registration in the Russian Federation (executed no earlier than in the preceding calendar year) the Transferee shall not withhold the tax from any amounts at payment transfer.
If as of the day of payment the Remaining Party is not registered for taxation in the Russian Federation but provides the original or a notarized copy of the Certificate confirming Remaining Party’s tax residency in the country which has an effective tax agreement with the Russian Federation under which the respective payment should be exempt from withholding taxation in Russian Federation or a lower rate should be applied, the Transferee shall not withhold the tax or withhold it at the lower rate as in line with the tax agreement. The Certificate mentioned in the preceding sentence should be dated no earlier than January 1 of the year in which the amount is paid and certified by a competent authority of the respective foreign country apostilled with reference to agreement with Russian Federation about avoidance of double taxation (if applicable). This certificate will be with validity period.
• If as of the day of the payment the Remaining Party is not registered for taxation in the Russian Federation and does not present the Certificate mentioned in the preceding paragraph, the Transferee shall withhold the tax from the payment and transfer it to the budget of Russian Federation at the rate envisioned under the Russian laws.
Costs and Expenses.
The Parties will each pay their own costs and expenses (including legal fees) incurred in connection with the preparation and negotiation of this Novation Agreement.
Governing Law and Jurisdiction.
This Novation Agreement will be governed by and construed in accordance with the laws of England.
The parties irrevocably agree that any dispute or claim that arises out of, or in connection with, this Novation Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be determined in accordance with the dispute resolution provisions set out or referred to in the Old Contract, and as of the Novation Date – in accordance with the New Contract.
Warranties
Each of the Parties represents and warrants to the others that:
it has full power, and has obtained all necessary authorisations, approvals and consents, to enter into this Novation Agreement;
its obligations under this Novation Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law);
such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
6.1.4. No default, event of default or potential event of default, as the case may be (however described in any relevant agreement to which this Novation Agreement relates) with respect to it has occurred and is continuing immediately prior to it entering into this Novation Agreement and no such event or circumstance would occur as a result of it entering into or performing its obligations under this Novation Agreement.
ANTI-CORRUPTION CONDITIONS
7.1 The Parties have agreed to amend clause 14 of the Old Contract as follows:
“When performing their obligations under this this Agreement, the Parties, their affiliates, employees or intermediaries shall not pay, offer and permit to pay any funds or valuables either directly or indirectly to any persons to bias actions or decisions of these persons for obtainment of any illegal benefits or for any other illegal purposes.
7.2 When performing their obligations under this Agreement, the Parties, their affiliates, employees or intermediaries shall not perform any actions qualified under the legislation applicable to this Agreement as giving / receiving bribe, commercial bribery as well as actions violating requirements of the applicable legislation and international acts on counteraction to legalization (laundering) illegal incomes.
7.3 Each Party to this Agreement shall waive stimulation in any manner of the other Party’s employees including by means of granting sums of money, gifts, gratuitous performance for them of any works (rendering of any services) and otherwise, gearing employees somehow and forcing them to perform any actions for the stimulating Party.
Actions of employees performed for the stimulating Party shall include the following ones:
- provision of unjustified benefits in comparison with benefits to any other counteragents;
- provision of any guarantees;
- acceleration of current procedures;
- any other actions performed by employees within the scope of their functions, however being contrary to the principles of transparency and openness of interrelations between the Parties.
7.4 In case the Parties have any suspicions that any violation of anti-corruption conditions is or may take place a relevant Party shall notify another Party in writing. Upon written notification a relevant Party may suspend performance of the obligations under this Agreement till receipt of confirmation that the violation has not taken or will not take place. This confirmation shall be sent within 5 (five) business days from the day a written notice was sent.
7.5 In its written confirmation the Party shall be obliged to refer to facts or to provide materials truly confirming the fact of violation by the counteragent, its affiliate, employees or intermediaries of any provisions of these conditions through any actions qualified under the applicable legislation as giving / receiving bribe, commercial bribery as well as actions violating requirements of the applicable legislation and international acts on counteraction to legalization (laundering) illegal incomes or giving a ground to believe that such violation has taken or may take place.
7.6 The Parties to this Agreement shall acknowledge carrying out procedures against corruption and control observance hereof. In this regard the Parties shall reasonably endeavor to minimize the risk of business relations with counteragents, which may be involved in corruption activities as well as render assistance to each other to prevent corruption. The Parties shall also provide implementation of inspection procedures for prevention of risks of involvement of the Parties in corruption activities.
7.7 For the purpose to carry out anti-corruption inspections the Entity within 5 (five) business days from the date of conclusion of this Agreement as well as at any time within the effective period hereof at the written request of the Customer shall be obliged to provide the information on a chain of owners of the Entity, including beneficiaries (final ones also) in the form according to Attachment № 1 to this Novation Agreement attaching confirming documents (hereinafter – the Information).
In case of any changes in the chain of owners the Entity , including beneficiaries (final ones also) and (or) in executive bodies of the Entity. shall be obliged to provide the required information to the Customer within 5 (five) business days from the date of introduction of such changes.
The information shall be provided in hard copy signed by the General Director (or any other office holder being a one – man executive body of the counteragent) or a person authorized on the basis of the power of attorney and shall be sent to the address of the Customer by mail with a list of enclosure. The date of provision of the Information shall be the date of receipt by the Customer of the mail. Additionally the Information shall be provided electronically.
The condition set forth in this clause shall be essential condition of this Contract in accordance with part 1 of article 432 of the Civil Code of the Russian Federation.
7.8 The Parties acknowledge that their probable wrongful acts and violation of anti-corruption conditions of this Agreement may result in adverse effects – from reduction of the counteragent’s reliability rating to substantial restrictions on interaction with the counteragent up to cancellation of this Agreement.
7.9 The Parties guarantee proper examination of the facts presented in view of implementation of this Agreement subject to observance of the confidentiality principles and applying effective measures for elimination of practical difficulties and prevention of probable conflict situations.
7.10 The Parties guarantee full confidentiality when fulfilling conditions of this Agreement as well as no adverse effects both for the applying Party in general and for certain employees of this Party, who notified of the violation facts.
7.11 In case of refusal by the Entity to provide the Information according to clause 7.7 of this Agreementt, actual non-provision of such Information, provision of the Information violating the terms specified in this Contract or provision of unreliable Information the Seller shall have the right to unilaterally repudiate the Contract sending a written repudiation notice within 5 (five) business days from the day a notice was sent.
7.12 In case the Information provided is not complete (i.e. provided not in the form of Exhibit № 1 to this Agreement) the Customer shall send a repeated request for provision of the Information in the form specified in clause 7.7 of this Agreement supplemented with the lacking information indicating the terms for provision hereof. In case of non-provision of such information, violation of the terms for provision hereof as well as provision of unreliable information the Seller shall have the right to unilaterally repudiate the Agreement sending a written repudiation notice within 5 (five) business days from the day a notice was sent.
8. Miscellaneous
No delay or omission by any Party to exercise any right, power or remedy vested in it under this Novation Agreement or by law shall impair such right, power or remedy, or be construed as a waiver of, or as an acquiescence in, any default by either of the other Parties.
If any of the Parties on any occasion agrees to waive any such right, power or remedy, such waiver shall not in any way preclude or impair any further exercise thereof or the exercise of any other right, power or remedy.
Any waiver by any of the Parties of any provision of this Agreement, and any consent or approval given by any Party, shall only be effective if given in writing and then only strictly for the purpose and upon the terms for which it is given. This Novation Agreement may not be amended or varied orally.
If at any time one or more of the provisions of this Novation Agreement is or becomes invalid, illegal or unenforceable in any respect under any law by which it may be governed or affected, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired as a result.
A person who is not a party to this Novation Agreement may not enforce, or otherwise have the benefit of, any provisions of this Agreement under the Contracts (Rights of Third Parties) Act 1999.
The present Novation Agreement is drawn in English and Russian languages in three originals, one for each Party, each being equally authentic. Should any discrepancies between Russian and English texts arise English text shall prevail.
IN WITNESS WHEREOF the Parties have executed this Novation Agreement on the date first written above.
Signed for and on behalf _____________:
Signed: _______________
Name: ________________
Signed: _______________
Name: _______________
Signed for and on behalf of ОJSC «RN Holding»:
Signed: _______________
Name: Karimov O.K.
Signed for and on behalf of Rosneft Oil Company (Russia):
Signed: _______________
Name: Casimiro Didier
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