☐ |
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☒ |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☐ |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☐ |
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of class
|
Name of exchange on which registered
|
|
Common stock, $0.01 par value
|
The NASDAQ Stock Market LLC
|
|
Preferred stock purchase rights
|
The NASDAQ Stock Market LLC
|
Large accelerated filer ☐
|
Accelerated filer ☒
|
Non-accelerated filer ☐
|
US GAAP ☒
|
International Financial Reporting Standards as issued by the International Accounting Standards Board ☐
|
Other ☐
|
FORWARD-LOOKING STATEMENTS
|
PART I
|
1
|
|
Item 1.
|
Identity of Directors, Senior Management and Advisers
|
1
|
Item 2.
|
Offer Statistics and Expected Timetable
|
1
|
Item 3.
|
Key Information
|
1
|
Item 4.
|
Information on the Company
|
27
|
Item 4A.
|
Unresolved Staff Comments
|
35
|
Item 5.
|
Operating and Financial Review and Prospects
|
35
|
Item 6.
|
Directors, Senior Management and Employees
|
54
|
Item 7.
|
Major Shareholders and Related Party Transactions
|
59
|
Item 8.
|
Financial Information
|
62
|
Item 9.
|
The Offer and Listing
|
63
|
Item 10.
|
Additional Information
|
64
|
Item 11.
|
Quantitative and Qualitative Disclosures about Market Risk
|
69
|
Item 12.
|
Description of Securities Other than Equity Securities
|
70
|
PART II
|
70
|
|
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies
|
71
|
Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
71
|
Item 15.
|
Controls and Procedures
|
71
|
Item 16A.
|
Audit Committee Financial Expert
|
72
|
Item 16B.
|
Code of Ethics
|
72
|
Item 16C.
|
Principal Accountant Fees and Services
|
72
|
Item 16D
|
Exemptions from the Listing Standards for Audit Committees
|
72
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
72
|
Item 16F
|
Change in Registrant's Certifying Accountant
|
72
|
Item 16G.
|
Corporate Governance
|
72
|
Item 16H.
|
Mine Safety Disclosure
|
72
|
PART III
|
72
|
|
Item 17.
|
Financial Statements
|
72
|
Item 18.
|
Financial Statements
|
72
|
Item 18.1
|
Schedule I - Condensed Financial Information of Ocean Rig UDW Inc. (Parent Company Only)
|
72
|
Item 19.
|
Exhibits
|
72
|
● |
our ability to come to a satisfactory resolution with our creditors in our ongoing consideration of various strategic alternatives, which we expect to include a restructuring of our debt, and our ability to successfully conclude such a restructuring;
|
● |
the offshore drilling market, including supply and demand, utilization rates, dayrates, customer drilling programs, commodity prices, effects of new rigs and drillships on the market and effects of declines in commodity prices and downturn in global economy on market outlook for our various geographical operating sectors and classes of rigs and drillships;
|
● |
hazards inherent in the offshore drilling industry and marine operations causing personal injury or loss of life, severe damage to or destruction of property and equipment, pollution or environmental damage, claims by third parties or customers and suspension of operations;
|
● |
customer contracts, including contract backlog, contract commencements, contract terminations, contract option exercises, contract revenues, contract awards and drilling rig and drillship mobilizations, performance provisions, newbuildings, upgrades, shipyard and other capital projects, including completion, delivery and commencement of operations dates, expected downtime and lost revenue;
|
● |
political and other uncertainties, including political unrest, risks of terrorist acts, war and civil disturbances, piracy, significant governmental influence over many aspects of local economies, seizure, nationalization or expropriation of property or equipment;
|
● |
repudiation, nullification, termination, modification or renegotiation of contracts;
|
● |
limitations on insurance coverage, such as war risk coverage, in certain areas;
|
● |
foreign and U.S. monetary policy and foreign currency fluctuations and devaluations;
|
● |
the inability to repatriate income or capital;
|
● |
complications associated with repairing and replacing equipment in remote locations;
|
● |
import-export quotas, wage and price controls imposition of trade barriers;
|
● |
regulatory or financial requirements to comply with foreign bureaucratic actions, including potential limitations on drilling activity;
|
● |
changing taxation policies and other forms of government regulation and economic conditions that are beyond our control;
|
● |
the level of expected capital expenditures and the timing and cost of completion of capital projects;
|
● |
our ability to successfully employ both our existing and newbuilding drilling units, procure or have access to financing, ability to comply with loan covenants, liquidity and adequacy of cash flow for our obligations;
|
● |
continued borrowing availability under our debt agreements and compliance with the covenants contained therein;
|
● |
our substantial leverage, including our ability to generate sufficient cash flow to service our existing debt and the incurrence of substantial indebtedness in the future;
|
● |
factors affecting our results of operations and cash flow from operations, including revenues and expenses, uses of excess cash, including debt retirement, dividends, timing and proceeds of asset sales, tax matters, changes in tax laws, treaties and regulations, tax assessments and liabilities for tax issues, legal and regulatory matters, including results and effects of legal proceedings, customs and environmental matters, insurance matters, debt levels, including impacts of the financial and credit crisis;
|
● |
the effects of accounting changes and adoption of accounting policies;
|
● |
recruitment and retention of personnel; and
|
● |
other important factors described in "Item 3. Key Information—D. Risk factors."
|
Item 1. |
Identity of Directors, Senior Management and Advisers
|
Item 2. |
Offer Statistics and Expected Timetable
|
Item 3. |
Key Information
|
A. |
Selected Historical Consolidated Financial Data
|
|
Ocean Rig UDW Inc.
|
|||||||||||||||||||
(U.S. Dollars in
|
As of December 31,
|
|||||||||||||||||||
thousands except for share and per share data)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
Income statement data:
|
||||||||||||||||||||
Total revenues
|
941,903
|
1,180,250
|
1,817,077
|
1,748,200
|
1,653,667
|
|||||||||||||||
Drilling units operating expenses
|
563,583
|
504,957
|
727,832
|
582,122
|
454,329
|
|||||||||||||||
Loss on disposals
|
133
|
-
|
-
|
5,177
|
25,274
|
|||||||||||||||
Impairment loss
|
-
|
-
|
-
|
414,986
|
3,776,338
|
|||||||||||||||
Depreciation and amortization
|
224,479
|
235,473
|
324,302
|
362,587
|
334,155
|
|||||||||||||||
Legal settlements and other, net
|
4,524
|
6,000
|
(721
|
)
|
(2,591
|
)
|
(8,720
|
)
|
||||||||||||
General and administrative expenses
|
83,647
|
126,868
|
131,745
|
100,314
|
103,961
|
|||||||||||||||
Total operating expenses
|
876,366
|
873,298
|
1,183,158
|
1,462,595
|
4,685,337
|
|||||||||||||||
Operating income/ (loss)
|
65,537
|
306,952
|
633,919
|
285,605
|
(3,031,670
|
)
|
||||||||||||||
Interest and finance costs
|
(116,427
|
)
|
(220,564
|
)
|
(300,131
|
)
|
(280,348
|
)
|
(226,981
|
)
|
||||||||||
Interest income
|
553
|
9,595
|
12,227
|
9,811
|
3,449
|
|||||||||||||||
Gain/(loss) on interest rate swaps
|
(36,974
|
)
|
8,616
|
(12,671
|
)
|
(11,513
|
)
|
(4,388
|
)
|
|||||||||||
Gain from repurchase of Senior Notes
|
-
|
-
|
-
|
189,174
|
125,001
|
|||||||||||||||
Other income/(expense), net
|
(1,068
|
)
|
3,315
|
4,282
|
(12,899
|
)
|
(614
|
)
|
||||||||||||
Total other expenses, net
|
(153,916
|
)
|
(199,038
|
)
|
(296,293
|
)
|
(105,775
|
)
|
(103,533
|
)
|
||||||||||
Income/(loss) before income taxes
|
(88,379
|
)
|
107,914
|
337,626
|
179,830
|
(3,135,203
|
)
|
|||||||||||||
Income taxes
|
(43,957
|
)
|
(44,591
|
)
|
(77,823
|
)
|
(99,816
|
)
|
(106,315
|
)
|
||||||||||
Net income/(loss)
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
$
|
80,014
|
$
|
(3,241,518
|
)
|
||||||||
Net Income/(loss) attributable to common stockholders
|
$
|
(132,336
|
)
|
$
|
63,221
|
$
|
259,031
|
$
|
78,839
|
$
|
(3,241,518
|
)
|
||||||||
Earnings/(loss) per share attributable to common stockholders, basic and diluted
|
$
|
(1.00
|
)
|
$
|
0.48
|
$
|
1.96
|
$
|
0.57
|
$
|
(33.43
|
)
|
||||||||
Weighted average number of common shares, basic and diluted
|
131,696,935
|
131,727,504
|
131,837,227
|
138,757,176
|
96,950,847
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
As of December 31,
|
|||||||||||||||||||
thousands except for share and per share data)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
Balance sheet data:
|
||||||||||||||||||||
Cash and cash equivalents
|
317,366
|
605,467
|
528,933
|
734,747
|
718,684
|
|||||||||||||||
Other current assets
|
279,768
|
404,250
|
449,259
|
503,355
|
361,257
|
|||||||||||||||
Total current assets
|
597,134
|
1,009,717
|
978,192
|
1,238,102
|
1,079,941
|
|||||||||||||||
Drilling units, machinery and equipment, net
|
4,399,462
|
5,777,025
|
6,207,633
|
6,336,892
|
2,438,292
|
|||||||||||||||
Intangible assets, net
|
7,619
|
6,175
|
4,732
|
3,289
|
1,845
|
|||||||||||||||
Other non-current assets
|
228,074
|
165,220
|
228,557
|
47,085
|
25,997
|
|||||||||||||||
Advances for drilling units under construction and related costs
|
992,825
|
662,313
|
622,507
|
394,852
|
545,469
|
|||||||||||||||
Total assets
|
6,225,114
|
7,620,450
|
8,041,621
|
8,020,220
|
4,091,544
|
|||||||||||||||
Current liabilities, including current portion of long term debt, net of deferred financing costs
|
505,665
|
543,654
|
417,693
|
401,464
|
812,011
|
|||||||||||||||
Long term debt, net of current portion and deferred financing costs
|
2,683,630
|
3,907,835
|
4,352,592
|
4,271,743
|
3,247,216
|
|||||||||||||||
Other non-current liabilities
|
127,304
|
189,118
|
105,060
|
72,248
|
21,567
|
|||||||||||||||
Total liabilities
|
3,316,599
|
4,640,607
|
4,875,345
|
4,745,455
|
4,080,794
|
|||||||||||||||
Number of shares issued
|
131,725,128
|
131,875,128
|
132,017,178
|
160,888,606
|
160,888,606
|
|||||||||||||||
Stockholders' equity
|
2,908,515
|
2,979,843
|
3,166,276
|
3,274,765
|
10,750
|
|||||||||||||||
Common Stock
|
1,317
|
1,319
|
1,320
|
1,609
|
1,609
|
|||||||||||||||
Dividends declared, per share
|
-
|
-
|
0.57
|
0.38
|
-
|
|||||||||||||||
Total liabilities and stockholders' equity
|
$
|
6,225,114
|
$
|
7,620,450
|
$
|
8,041,621
|
$
|
8,020,220
|
$
|
4,091,544
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
Year Ended December 31,
|
|||||||||||||||||||
thousands, except for operating data)
|
||||||||||||||||||||
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
Cash flow data:
|
||||||||||||||||||||
Net cash provided by / (used in):
|
||||||||||||||||||||
Operating activities
|
$
|
278,303
|
$
|
333,008
|
$
|
469,817
|
$
|
593,012
|
$
|
763,129
|
||||||||||
Investing activities
|
(320,469
|
)
|
(1,144,230
|
)
|
(814,984
|
)
|
(643,717
|
)
|
(392,547)
|
|||||||||||
Financing activities
|
108,654
|
1,099,323
|
268,633
|
263,267
|
(386,645)
|
|||||||||||||||
Other financial data
|
||||||||||||||||||||
EBITDA (1)
|
251,974
|
554,356
|
949,832
|
812,954
|
(2,577,516)
|
|||||||||||||||
Cash paid for interest
|
73,219
|
113,337
|
212,014
|
256,056
|
254,207
|
|||||||||||||||
Capital expenditures
|
(310,054
|
)
|
(1,283,364
|
)
|
(748,981
|
)
|
(633,843
|
)
|
(340,153
|
)
|
||||||||||
Operating data, when on hire
|
||||||||||||||||||||
Total Fleet
|
6
|
8
|
9
|
10
|
11
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
Year Ended December 31,
|
|||||||||||||||||||
thousands)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
EBITDA reconciliation
|
||||||||||||||||||||
Net income / (loss)
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
$
|
80,014
|
(3,241,518
|
)
|
|||||||||
Add: Depreciation and amortization
|
224,479
|
235,473
|
324,302
|
362,587
|
334,155
|
|||||||||||||||
Add: Net interest expense
|
115,874
|
210,969
|
287,904
|
270,537
|
223,532
|
|||||||||||||||
Add: Income taxes
|
43,957
|
44,591
|
77,823
|
99,816
|
106,315
|
|||||||||||||||
EBITDA
|
$
|
251,974
|
$
|
554,356
|
$
|
949,832
|
$
|
812,954
|
$
|
(2,577,516
|
)
|
B. |
Capitalization and Indebtedness
|
C. |
Reasons for the Offer and Use of Proceeds
|
D. |
Risk Factors
|
● |
worldwide production and demand for oil and gas and any geographical dislocations in supply and demand;
|
● |
the cost of exploring for, developing, producing and delivering oil and gas;
|
● |
expectations regarding future energy prices;
|
● |
advances in exploration, development and production technology;
|
● |
the ability of the Organization of Petroleum Exporting Countries, or OPEC, to set and maintain levels and pricing;
|
● |
the level of production in non-OPEC countries;
|
● |
government regulations;
|
● |
local and international political, economic and weather conditions;
|
● |
domestic and foreign tax policies;
|
● |
development and exploitation of alternative fuels;
|
● |
the policies of various governments regarding exploration and development of their oil and gas reserves; and
|
● |
the worldwide military and political environment, including uncertainty or instability resulting from an escalation or additional outbreak of armed hostilities, insurrection or other crises in the Middle East or other geographic areas or further acts of terrorism in the United States, or elsewhere.
|
● |
the availability of competing offshore drilling vessels and the level of newbuilding activity for drilling vessels;
|
● |
the level of costs for associated offshore oilfield and construction services;
|
● |
oil and gas transportation costs;
|
● |
the discovery of new oil and gas reserves;
|
● |
the cost of non-conventional hydrocarbons, such as the exploitation of oil sands; and
|
● |
regulatory restrictions on offshore drilling.
|
● |
terrorist and environmental activist acts, armed hostilities, war and civil disturbances;
|
● |
acts of piracy, which have historically affected ocean-going vessels trading in regions of the world such as the South China Sea and in the Gulf of Aden off the coast of Somalia and which have generally increased significantly in frequency since 2008, particularly in the Gulf of Aden and off the west coast of Africa;
|
● |
significant governmental influence over many aspects of local economies;
|
● |
seizure, nationalization or expropriation of property or equipment;
|
● |
repudiation, nullification, modification or renegotiation of contracts;
|
● |
limitations on insurance coverage, such as war risk coverage, in certain areas;
|
● |
political unrest;
|
● |
foreign and U.S. monetary policy, government debt downgrades and potential defaults and foreign currency fluctuations and devaluations;
|
● |
the inability to repatriate income or capital;
|
● |
complications associated with repairing and replacing equipment in remote locations;
|
● |
import-export quotas, wage and price controls, imposition of trade barriers;
|
● |
regulatory or financial requirements to comply with foreign bureaucratic actions;
|
● |
changing taxation policies, including confiscatory taxation;
|
● |
other forms of government regulation and economic conditions that are beyond our control; and
|
● |
governmental corruption.
|
● |
the equipping and operation of drilling units;
|
● |
repatriation of foreign earnings;
|
● |
oil and gas exploration and development;
|
● |
taxation of offshore earnings and earnings of expatriate personnel; and
|
● |
use and compensation of local employees and suppliers by foreign contractors.
|
● |
we may not be able to satisfy our financial obligations under our indebtedness and our contractual and commercial commitments, which may result in possible defaults on and acceleration of such indebtedness;
|
● |
we may not be able to obtain financing in the future for working capital, capital expenditures, acquisitions, debt service requirements or other purposes;
|
● |
we may not be able to use operating cash flow in other areas of our business because we must dedicate a substantial portion of these funds to service the debt;
|
● |
we could become more vulnerable to general adverse economic and industry conditions, including increases in interest rates, particularly given our substantial indebtedness, some of which bears interest at variable rates;
|
● |
our ability to refinance indebtedness may be limited or the associated costs may increase;
|
● |
less leveraged competitors could have a competitive advantage because they have lower debt service requirements and, as a result, we may not be better positioned to withstand economic downturns;
|
● |
we may be less able to take advantage of significant business opportunities and to react to changes in market or industry conditions than our competitors and our management's discretion in operating our business may be limited; and
|
● |
we may be unable to raise the funds necessary to repurchase our Senior Secured Notes due 2017, issued by Drill Rigs Holdings Inc., our wholly-owned subsidiary, or Drill Rigs Holdings, if there is a change of control or event of loss or in connection with an asset sale offer, which would constitute a default under the indenture governing the Senior Secured Notes.
|
● |
enter into other financing arrangements;
|
● |
incur or guarantee additional indebtedness;
|
● |
create or permit liens on our assets;
|
● |
consummate a merger, consolidation or sale of our drilling units or the shares of our subsidiaries;
|
● |
make investments;
|
● |
change the general nature of our business;
|
● |
pay dividends, redeem capital stock or subordinated indebtedness or make other restricted payments;
|
● |
incur dividend or other payment restrictions affecting our restricted subsidiaries under the indenture governing our Senior Secured Notes;
|
● |
change the management and/or ownership of our drilling units;
|
● |
enter into transactions with affiliates;
|
● |
transfer or sell assets;
|
● |
amend, modify or change our organizational documents;
|
● |
make capital expenditures; and
|
● |
compete effectively to the extent our competitors are subject to less onerous restrictions.
|
● |
shipyard unavailability;
|
● |
shortages of equipment, materials or skilled labor for completion of repairs or upgrades to our equipment;
|
● |
unscheduled delays in the delivery of ordered materials and equipment or shipyard construction;
|
● |
financial or operating difficulties experienced by equipment vendors or the shipyard;
|
● |
unanticipated actual or purported change orders;
|
● |
local customs strikes or related work slowdowns that could delay importation of equipment or materials;
|
● |
engineering problems, including those relating to the commissioning of newly designed equipment;
|
● |
design or engineering changes;
|
● |
latent damages or deterioration to the hull, equipment and machinery in excess of engineering estimates and assumptions;
|
● |
work stoppages;
|
● |
client acceptance delays;
|
● |
weather interference, storm damage or other events of force majeure;
|
● |
disputes with shipyards and suppliers;
|
● |
shipyard failures and difficulties;
|
● |
failure or delay of third-party equipment vendors or service providers;
|
● |
unanticipated cost increases; and
|
● |
difficulty in obtaining necessary permits or approvals or in meeting permit or approval conditions.
|
● |
locate and acquire suitable drilling units;
|
● |
identify and consummate acquisitions or joint ventures;
|
● |
enhance our customer base;
|
● |
locate and retain suitable personnel for our fleet;
|
● |
manage our expansion; and
|
● |
obtain required financing on acceptable terms.
|
● |
prevailing level of drilling services contract dayrates;
|
● |
general economic and market conditions affecting the offshore contract drilling industry, including competition from other offshore contract drilling companies;
|
● |
types, sizes and ages of drilling units;
|
● |
supply and demand for drilling units;
|
● |
costs of newbuildings;
|
● |
governmental or other regulations; and
|
● |
technological advances.
|
● |
the final terms of any comprehensive deleveraging plan that we seek to implement;
|
● |
actual or anticipated variations in our operating results;
|
● |
changes in our cash flow, EBITDA or earnings estimates;
|
● |
changes in the price of oil;
|
● |
publication of research reports about us or the industry in which we operate;
|
● |
increases in market interest rates that may lead purchasers of common shares to demand a higher expected yield which, would mean our share price would fall;
|
● |
changes in applicable laws or regulations, court rulings and enforcement and legal actions;
|
● |
changes in market valuations of similar companies;
|
● |
announcements by us or our competitors of significant contracts, acquisitions or capital commitments;
|
● |
increased indebtedness we incur in the future;
|
● |
additions or departures of key personnel;
|
● |
actions by institutional stockholders or other key stakeholders;
|
● |
speculation in the press or investment community;
|
● |
terrorist attacks;
|
● |
economic and regulatory trends; and
|
● |
general market conditions.
|
● |
authorizing our board of directors to issue "blank check" preferred shares without shareholder approval;
|
● |
providing for a classified board of directors with staggered, three-year terms;
|
● |
prohibiting cumulative voting in the election of directors;
|
● |
authorizing the removal of directors only for cause and only upon the affirmative vote of the holders of a majority of the outstanding common shares entitled to vote generally in the election of directors;
|
● |
limiting the persons who may call special meetings of shareholders; and
|
● |
establishing advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted on by shareholders at shareholder meetings.
|
● |
prior to the date of the transaction in which the person became an interested shareholder, our board of directors approved either the business combination or the transaction which resulted in the shareholder becoming an interested shareholder;
|
● |
upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of our voting stock outstanding at the time the transaction commenced;
|
● |
at or subsequent to the date of the transaction that resulted in the shareholder becoming an interested shareholder, the business combination is approved by the board of directors and authorized at an annual or special meeting of shareholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested shareholder; or
|
● |
the shareholder became an interested shareholder prior to the consummation of our initial public offering under the Securities Act.
|
Item 4. |
Information on the Company
|
A. |
History and Development of the Company
|
B. |
Business Overview
|
Drilling Unit
|
Year Built or
Scheduled
Delivery/
Generation
|
Water
Depth to the
Wellhead
(ft)
|
Drilling
Depth to the
Oil Field
(ft)
|
Customer
|
Expected Contract Expiration(1)
|
Dayrate (4)
|
Drilling
Location
|
||||||||
Operating Drilling Units
|
|||||||||||||||
Leiv Eiriksson
|
2001/5th
|
10,000
|
30,000
|
Lundin Norway AS
|
Q3 2017
|
$145,000
|
Norway
|
||||||||
Ocean Rig Corcovado
|
2011/6th
|
10,000
|
40,000
|
Petroleo Brasileiro S.A.
|
Q2 2018
|
$498,552
|
(3)
|
Brazil
|
|||||||
Ocean Rig Poseidon
|
2011/6th
|
10,000
|
40,000
|
ENI Angola S.p.A.
|
Q3 2017
|
$581,715
|
Angola
|
||||||||
Ocean Rig Mykonos
|
2011/6th
|
10,000
|
40,000
|
Petroleo Brasileiro S.A.
|
Q1 2018
|
$498,552
|
(3)
|
Brazil
|
|||||||
Ocean Rig Skyros
|
2013/7th
|
12,000
|
40,000
|
Total E&P Angola
|
Q3 2021
|
$569,367
|
Angola
|
||||||||
Available for employment (2)
|
|||||||||||||||
Ocean Rig Mylos
|
2013/7th
|
12,000
|
40,000
|
||||||||||||
Eirik Raude
|
2002/5th
|
10,000
|
30,000
|
||||||||||||
Ocean Rig Paros
|
2011/6th
|
10,000
|
40,000
|
||||||||||||
Ocean Rig Olympia
|
2011/6th
|
10,000
|
40,000
|
||||||||||||
Ocean Rig Apollo(5)
|
2015/7th
|
12,000
|
40,000
|
||||||||||||
Ocean Rig Athena(5)
|
2014/7th
|
12,000
|
40,000
|
(1) |
Not including the exercise of any applicable options to extend the term of the contract and any notification received for the termination of contracts.
|
(2) |
These drilling units are cold stacked in Greece and are available for charter.
|
(3) |
Approximately 20% of the dayrates are service fees paid to us in Brazilian Real (R$). The day rate disclosed in this table is based on the March 17, 2017 exchange rate of R$3.11:$1.00. During the first and second quarter of 2015, the Ocean Rig Mykonos and the Ocean Rig Corcovado, respectively, commenced drilling operations under the new awarded contracts, which are extensions of the previous contracts from Petrobras, for drilling offshore Brazil. The term of each extension was for 1,095 excluding reimbursement by Petrobras for contract related equipment upgrades.
|
(4) |
These rates represent the current operating rates applicable under each contract. Depending on the contract, these rates may be escalated.
|
(5) |
These drilling units are currently receiving termination fees according to settlement agreements signed between us and our clients.
|
Year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Customer A
|
14
|
%
|
14
|
%
|
11
|
%
|
||||||
Customer B
|
18
|
%
|
19
|
%
|
20
|
%
|
||||||
Customer C
|
12
|
%
|
13
|
%
|
—
|
|
||||||
Customer D
|
30
|
%
|
15
|
%
|
31
|
%
|
||||||
Customer E
|
14
|
%
|
13
|
%
|
14
|
%
|
||||||
Customer F
|
—
|
15
|
%
|
18
|
%
|
C. |
Organizational Structure
|
D. |
Property, Plants and Equipment
|
Item 4A. |
Unresolved Staff Comments
|
Item 5. |
Operating and Financial Review and Prospects
|
A. |
Operating Results
|
● |
Employment Days: We define employment days as the total number of days the drilling units are employed on a drilling contract.
|
● |
Dayrates or maximum dayrates: We define drilling dayrates as the maximum rate in U.S. Dollars possible to earn for drilling services for one 24 hour day at 100% efficiency under the drilling contract. Such dayrate may be measured by quarter-hour, half-hour or hourly basis and may be reduced depending on the activity performed according to the drilling contract.
|
● |
Earnings efficiency: We measure our revenue earning performance over a period as a percentage of the maximum revenues that we could earn under our drilling contracts in such period. More specifically, all drilling contracts provide for an operating or base rate that applies for the period during which the drilling unit is operational and at the client's drilling location. Furthermore, drilling contracts generally provide for a general repair allowance for preventive maintenance or repair of equipment; such allowance varies from contract to contract, and we may be compensated at the full operating dayrate or at a reduced operating day rate for such general repair allowance. In addition, drilling contracts typically provide for situations where the drilling units would operate at reduced operating dayrates, such as, among other things: a standby rate, where the drilling unit is prevented from commencing operations for reasons such as bad weather, waiting for customer orders, waiting on other contractors; a moving rate, where the drilling unit is in transit between locations; a reduced performance rate in the event of major equipment failure; or a force majeure rate in the event of a force majeure that causes the suspension of operations. At these instances we are compensated with a portion of the base rate. In addition there are circumstances that due to equipment failure or other events defined in our drilling contracts, we do not earn the base rate.
|
● |
Utilization: We define utilization as the employment days divided by the total number of the drilling unit calendar days i.e. the percentage of the period that the drilling unit was under contract.
|
● |
Mobilization / demobilization fees: In connection with drilling contracts, we may receive revenues for preparation and mobilization of equipment and personnel or for capital improvements to the drilling units, dayrate or fixed price mobilization and demobilization fees.
|
● |
Revenue: For each contract, we determine whether the contract, for accounting purposes, is a multiple element arrangement, meaning it contains both a lease element and a drilling services element, and, if so, identify all deliverables (elements). For each element we determine how and when to recognize revenue.
|
● |
Term contracts: These are contracts pursuant to which we agree to operate the unit for a specified period of time. For these types of contracts, we determine whether the arrangement is a multiple element arrangement. For revenues derived from contracts that contain a lease, the lease elements are recognized as "Leasing revenues" in the statement of operations on a basis approximating straight line over the lease period. The drilling services element is recognized as "Service revenues" in the period in which the services are rendered at fair value rates. Revenues related to the drilling element of mobilization and direct incremental expenses of drilling services are deferred and recognized over the estimated duration of the drilling period.
|
● |
Well contracts: These are contracts pursuant to which we agree to drill a certain number of wells. Revenue from dayrate based compensation for drilling operations is recognized in the period during which the services are rendered at the rates established in the contracts. All mobilization revenues, direct incremental expenses of mobilization and contributions from customers for capital improvements are initially deferred and recognized as revenues over the estimated duration of the drilling period.
|
Year Ended December 31, 2015
|
Year Ended December 31, 2016
|
Change
|
Percentage Change
|
|||||||||||||
REVENUES:
|
||||||||||||||||
Total revenues
|
1,748,200
|
1,653,667
|
(94,533
|
)
|
(5.4
|
)%
|
||||||||||
EXPENSES:
|
||||||||||||||||
Drilling units operating expenses
|
582,122
|
454,329
|
(127,793
|
)
|
(22.0
|
)%
|
||||||||||
Depreciation and amortization
|
362,587
|
334,155
|
(28,432
|
)
|
(7.8
|
)%
|
||||||||||
Impairment loss
|
414,986
|
3,776,338
|
3,361,352
|
810.0
|
%
|
|||||||||||
General and administrative expenses
|
100,314
|
103,961
|
3,647
|
3.7
|
%
|
|||||||||||
Loss on sale of fixed assets
|
5,177
|
25,274
|
20,097
|
388.2
|
%
|
|||||||||||
Legal settlements and other, net
|
(2,591
|
)
|
(8,720
|
)
|
(6,129
|
)
|
236.5
|
%
|
||||||||
Operating income/ (loss)
|
285,605
|
(3,031,670
|
)
|
(3,317,275
|
)
|
(1,161.5
|
)%
|
|||||||||
OTHER INCOME/(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(280,348
|
)
|
(226,981
|
)
|
53,367
|
(19.0
|
)%
|
|||||||||
Interest income
|
9,811
|
3,449
|
(6,362
|
)
|
(64.8
|
)%
|
||||||||||
Loss on interest rate swaps
|
(11,513
|
)
|
(4,388
|
)
|
7,125
|
(61.9
|
)%
|
|||||||||
Gain from repurchase of Senior Notes
|
189,174
|
125,001
|
(64,173
|
)
|
(33.9
|
)%
|
||||||||||
Other, net
|
(12,899
|
)
|
(614
|
)
|
12,285
|
(95.2
|
)%
|
|||||||||
Total other expenses, net
|
(105,775
|
)
|
(103,533
|
)
|
2,242
|
(2.1
|
)%
|
|||||||||
Income / (loss) before income taxes
|
179,830
|
(3,135,203
|
)
|
(3,315,033
|
)
|
(1,843.4
|
)%
|
|||||||||
Income taxes
|
(99,816
|
)
|
(106,315
|
)
|
(6,499
|
)
|
6.5
|
%
|
||||||||
Net Income / (loss)
|
80,014
|
(3,241,518
|
)
|
(3,321,532
|
)
|
(4,151.2
|
)%
|
Year Ended December 31, 2014
|
Year Ended December 31, 2015
|
Change
|
Percentage Change
|
|||||||||||||
REVENUES:
|
||||||||||||||||
Total revenues
|
1,817,077
|
1,748,200
|
(68,877
|
)
|
(3.8
|
)%
|
||||||||||
EXPENSES:
|
||||||||||||||||
Drilling units operating expenses
|
727,832
|
582,122
|
(145,710
|
)
|
(20.0
|
)%
|
||||||||||
Depreciation and amortization
|
324,302
|
362,587
|
38,285
|
11.8
|
%
|
|||||||||||
Impairment Loss
|
-
|
414,986
|
414,986
|
-
|
%
|
|||||||||||
General and administrative expenses
|
131,745
|
100,314
|
(31,431
|
)
|
(23.9
|
)%
|
||||||||||
Loss on sale of fixed assets
|
-
|
5,177
|
5,177
|
-
|
%
|
|||||||||||
Legal settlements and other, net
|
(721
|
)
|
(2,591
|
)
|
1,870
|
259.4
|
%
|
|||||||||
Operating income
|
633,919
|
285,605
|
348,314
|
(54.9
|
)%
|
|||||||||||
OTHER INCOME/(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(300,131
|
)
|
(280,348
|
)
|
19,783
|
(6.6
|
)%
|
|||||||||
Interest income
|
12,227
|
9,811
|
(2,416
|
)
|
(19.8
|
)%
|
||||||||||
Loss on interest rate swaps
|
(12,671
|
)
|
(11,513
|
)
|
1,158
|
(9.1
|
)%
|
|||||||||
Gain from repurchase of Senior Notes
|
-
|
189,174
|
189,174
|
-
|
%
|
|||||||||||
Other, net
|
4,282
|
(12,899
|
)
|
(17,181
|
)
|
(401.2
|
)%
|
|||||||||
Total other expenses, net
|
(296,293
|
)
|
(105,775
|
)
|
190,518
|
(64.3
|
)%
|
|||||||||
Income before income taxes
|
337,626
|
179,830
|
(157,796
|
)
|
(46.7
|
)%
|
||||||||||
Income taxes
|
(77,823
|
)
|
(99,816
|
)
|
(21,993
|
)
|
28.3
|
%
|
||||||||
Net Income
|
259,803
|
80,014
|
(179,789
|
)
|
(69.2
|
)%
|
B. |
Liquidity and Capital Resources
|
Year Ended
December 31,
|
||||
(U.S. Dollars in thousands)
|
2016*
|
|||
Total revenue
|
96,098
|
|||
EBITDA(1)
|
(699,128
|
)
|
||
Total assets
|
109,659
|
|||
Total liabilities
|
477,478
|
|||
Shareholders' equity
|
(367,819
|
)
|
||
Total cash and cash equivalents
|
4,274
|
|||
Capital Expenditures (2)
|
17,365
|
(1) |
EBITDA represents net income/ loss before interest, taxes, depreciation and amortization. EBITDA is a non-U.S. GAAP measure and does not represent and should not be considered as an alternative to net income / loss or cash flow from operations, as determined by U.S. GAAP or other U.S. GAAP measures, and our calculation of EBITDA may not be comparable to that reported by other companies. EBITDA is included herein because it is a basis upon which we measure our operations. EBITDA is also used by various of our lenders as a measure of our compliance with certain loan covenants and because we believe that it presents useful information to investors regarding a company's ability to service and/or incur indebtedness.
|
(2) |
Capital expenditures represent fixed assets improvements.
|
Year Ended December 31,
|
||||
(U.S. Dollars in thousands)
|
2016
|
|||
EBITDA reconciliation
|
||||
Net loss
|
(802,054
|
)
|
||
Net interest expense
|
55,547
|
|||
Depreciation
|
50,123
|
|||
Income taxes
|
(2,744
|
)
|
||
EBITDA
|
(699,128
|
)
|
Year Ended
December 31, 2016*
|
||||
(U.S. Dollars in thousands)
|
||||
Total revenue
|
561,675
|
|||
EBITDA(1)
|
(2,758,863
|
)
|
||
Total assets
|
1,221,349
|
|||
Total liabilities
|
1,875,030
|
|||
Shareholders' equity
|
(653,681
|
)
|
||
Total cash and cash equivalents
|
362,458
|
|||
Capital expenditures (2)
|
88,001
|
(1) |
EBITDA represents net income / loss before interest, taxes, depreciation and amortization. EBITDA is a non-U.S. GAAP measure and does not represent and should not be considered as an alternative to net income / loss or cash flow from operations, as determined by U.S. GAAP or other U.S. GAAP measures, and our calculation of EBITDA may not be comparable to that reported by other companies. EBITDA is included herein because it is a basis upon which we measure our operations. EBITDA is also used by various of our lenders as a measure of our compliance with certain loan covenants and because we believe that it presents useful information to investors regarding a company's ability to service and/or incur indebtedness.
|
(2) |
Capital expenditures represent fixed assets improvements.
|
Year Ended
December 31,
|
||||
(U.S. Dollars in thousands)
|
2016
|
|||
EBITDA reconciliation
|
||||
Net loss
|
(3,048,658
|
)
|
||
Net interest expense
|
118,164
|
|||
Depreciation
|
152,174
|
|||
Income taxes
|
19,457
|
|||
EBITDA
|
(2,758,863
|
)
|
Year Ended
December 31,
|
||||
(U.S. Dollars in thousands)
|
2016*
|
|||
Total revenue
|
635,431
|
|||
EBITDA(1)
|
(302,272
|
)
|
||
Total assets
|
1,203,505
|
|||
Total liabilities
|
1,304,222
|
|||
Shareholders' equity
|
(100,717
|
)
|
||
Total cash and cash equivalents
|
157,386
|
|||
Capital expenditures (2)
|
30,770
|
(1) |
EBITDA represents net income/ loss before interest, taxes, depreciation and amortization. EBITDA is a non-U.S. GAAP measure and does not represent and should not be considered as an alternative to net income / loss or cash flow from operations, as determined by U.S. GAAP or other U.S. GAAP measures, and our calculation of EBITDA may not be comparable to that reported by other companies. EBITDA is included herein because it is a basis upon which we measure our operations. EBITDA is also used by various of our lenders as a measure of our compliance with certain loan covenants and because we believe that it presents useful information to investors regarding a company's ability to service and/or incur indebtedness.
|
(2) |
Capital expenditures represent fixed assets improvements, payments made to yard for the drilling units under construction and related construction expenses.
|
Year Ended
December 31,
|
||||
(U.S. Dollars in thousands)
|
2016
|
|||
EBITDA reconciliation
|
||||
Net loss
|
(522,704
|
)
|
||
Net interest expense
|
75,630
|
|||
Depreciation
|
98,154
|
|||
Income taxes
|
46,648
|
|||
EBITDA
|
(302,272
|
)
|
|
Year Ended
December 31,
|
|||
(U.S. Dollars in thousands)
|
2016*
|
|||
EBITDA(1)
|
(2
|
)
|
||
Total assets
|
180,638
|
|||
Total liabilities
|
2
|
|||
Shareholders' equity
|
180,636
|
|||
Total cash and cash equivalents
|
130,691
|
(1) |
EBITDA represents net income/ loss before interest, taxes, depreciation and amortization. EBITDA is a non-U.S. GAAP measure and does not represent and should not be considered as an alternative to net income / loss or cash flow from operations, as determined by U.S. GAAP or other U.S. GAAP measures, and our calculation of EBITDA may not be comparable to that reported by other companies. EBITDA is included herein because it is a basis upon which we measure our operations. EBITDA is also used by various of our lenders as a measure of our compliance with certain loan covenants and because we believe that it presents useful information to investors regarding a company's ability to service and/or incur indebtedness.
|
Year Ended
December 31,
|
||||
(U.S. Dollars in thousands)
|
2016
|
|||
EBITDA reconciliation
|
||||
Net income
|
624
|
|||
Net interest expense
|
(626
|
)
|
||
EBITDA
|
(2
|
)
|
C. |
Research and Development, Patents and Licenses, etc.
|
D. |
Trend Information
|
E. |
Off-balance Sheet Arrangements
|
F. |
Tabular disclosure of contractual obligations
|
Obligations
|
Total
|
Less than 1 year
|
1-3 years
|
3-5 years
|
More than 5 years
|
|||||||||||||||
(U.S. Dollars in thousands)
|
||||||||||||||||||||
Drilling units under construction (1)
|
938,096
|
417,931
|
520,165
|
-
|
-
|
|||||||||||||||
Loan payments (2)
|
3,949,239
|
658,063
|
2,072,426
|
1,218,750
|
-
|
|||||||||||||||
Interest payments (3)
|
862,019
|
184,203
|
613,384
|
64,432
|
-
|
|||||||||||||||
Total
|
5,749,354
|
1,260,197
|
3,205,975
|
1,283,182
|
-
|
(1) |
The figure includes contracted purchase obligations only.
|
(2) |
Includes $131.0 million in aggregate principal amount of 7.25% senior unsecured notes and $459.7 million in aggregate principal amount of 6.5% senior secured notes.
|
(3) |
Based on interest rates ranging from 2.04% to 7.25%, including part of interest rate swap payments for the floating rates (LIBOR).
|
G. |
Safe Harbor
|
Item 6. |
Directors, Senior Management and Employees
|
A. |
Directors and senior management
|
Directors and executive officers of Ocean Rig UDW Inc.(1)
|
||
Name
|
Age
|
Position
|
George Economou
|
64
|
Chairman of the Board, Chief Executive Officer and Class A Director
|
Chrysoula Kandylidis
|
63
|
Class C Director
|
Michael Pearson
|
39
|
Class A Director
|
Vassilis Karamitsanis
|
41
|
Class B Director
|
Anthony Kandylidis
|
40
|
President and Chief Financial Officer
|
Dimitris Koukoulas
|
57
|
Executive Vice President
|
George Kokkodis
|
55
|
Class C Director
|
John Liveris
|
65
|
Class B Director
|
Iraklis Sbarounis
|
32
|
Vice President Business Development and Secretary
|
Niki Fotiou (1)
|
47
|
Senior Vice President of Finance and Accounting
|
B. |
Compensation
|
C. |
Board Practices
|
D. |
Employees
|
E. |
Share Ownership
|
Item 7. |
Major Shareholders and Related Party Transactions
|
A. |
Major Shareholders
|
● |
each person or entity that we know beneficially owns 5% or more of our common stock;
|
● |
each of our executive officers and directors; and
|
● |
all our executive officers and directors as a group.
|
Name and Address of Beneficial Owner(1)
|
Number of
Shares Owned
|
Percent of Class(2)
|
||||||
Executive Officers and Directors:
|
||||||||
George Economou(3)
|
7,421,860
|
9.0
|
%
|
|||||
Anthony Kandylidis(4)
|
1,684,512
|
2.0
|
%
|
|||||
Executive Officers and Directors as a Group
|
9,110,582
|
11.2
|
%
|
|||||
5% Beneficial Owners:
|
||||||||
James D. Dondero (5)
|
13,677,574
|
16.6
|
%
|
|||||
Certain Highland Funds (5)
|
6,621,724
|
8.0
|
%
|
|||||
Nancy Marie Dondero (5)
|
4,813,132
|
5.8
|
%
|
|||||
(1) |
Unless otherwise indicated, the business address of each beneficial owner identified is c/o Ocean Rig Cayman Management Services SEZC Limited, Po Box 309, Ugland House, South Church Street George Town, Grand Cayman, KYI -1104 Cayman Islands.
|
(2) |
Based on 82,586,851 shares outstanding as of December 31, 2016. Additionally, Ocean Rig Investments Inc. holds 56,079,533 shares of our common stock that are treated as treasury stock and not considered outstanding for the calculations set forth in the table above. In the Cayman Island, the jurisdiction in which we are incorporated, shares of a subsidiary have all the rights attached to the class including voting rights. As such, the 56,079,533 shares held by Ocean Rig Investments Inc. would be considered outstanding for voting purposes.
|
(3) |
George Economou, our Chairman and Chief Executive Officer and Class A Director, may be deemed to beneficially own 6,490,001 of these shares through Sphinx Investment Corp., a Marshall Islands corporation controlled by Mr. Economou. Mr. Economou may be deemed to beneficially own 600,000 of these shares through Azara Services S.A., a Marshall Islands corporation controlled by Mr. Economou. Mr. Economou may be deemed to beneficially own 79,525 of these shares through Elios Investments Inc., a wholly owned subsidiary of the Entrepreneurial Spirit Foundation, a Lichtenstein foundation, or the Foundation, the beneficiaries of which are Mr. Economou and members of Mr. Economou's family. Mr. Economou may be deemed to beneficially own 145,128 of these shares through Entrepreneurial Spirit Holdings Inc., a Liberian corporation that is wholly owned by the Foundation. Mr. Economou may be deemed to beneficially own 105,357 of these shares through Fabiana Services S.A., a Marshall Islands corporation, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to own 1,849 of these shares through Goodwill Shipping Company Limited, a Malta corporation, of which Mr. Economou is the controlling person.
|
(4) |
Anthony Kandylidis, our President and Chief Financial Officer may be deemed to beneficially own 1,570,226 of these shares through Steel Wheel Investments Limited, a Marshall Islands corporation controlled by Mr. Kandylidis. Mr. Kandylidis, may be deemed to beneficially own 114,286 of these shares through Basset Holdings Inc., a Marshall Islands corporation controlled by Mr. Kandylidis.
|
(5) |
This information is derived from Schedule 13G filed with the SEC on May 4, 2016. Highland Global Allocation Fund, Highland Capital Management Fund Advisors, L.P. and Strand Advisors XVI, Inc. may be deemed the beneficial owners of 8.0% of the outstanding shares of our common stock held by Highland Global Allocation Fund as per the Schedule 13G filed with the SEC on May 4, 2016.
|
B. |
Related Party Transactions
|
C. |
Interests of experts and counsel
|
Item 8. |
Financial Information
|
A. |
Consolidated statements and other financial information
|
B. |
Significant Changes
|
Item 9. |
The Offer and Listing
|
Low
(NASDAQ)
|
High
(NASDAQ)
|
Low(1)
(OTC)
|
High(1)
(OTC)
|
|||||||||||||
December 31, 2012
|
$
|
11.75
|
18.17
|
73.00
|
102.00
|
|||||||||||
December 31, 2013
|
13.76
|
20.83
|
89.03
|
124.00
|
||||||||||||
December 31, 2014
|
8.50
|
19.87
|
124.00
|
124.00
|
||||||||||||
December 31, 2015
|
1.38
|
9.52
|
(4
|
)
|
(4)
|
|||||||||||
December 31, 2016
|
0.66
|
3.38
|
(4
|
)
|
(4)
|
|||||||||||
For the Quarter Ended
|
||||||||||||||||
March 31, 2015
|
5.91
|
9.49
|
(4
|
)
|
(4
|
)
|
||||||||||
June 30, 2015
|
5.12
|
9.52
|
(4
|
)
|
(4
|
|||||||||||
September 30, 2015
|
2.04
|
5.27
|
(4
|
)
|
(4
|
)
|
||||||||||
December 31, 2015
|
1.38
|
2.94
|
(4
|
)
|
(4
|
)
|
||||||||||
March 31, 2016
|
0.66
|
1.69
|
(4
|
)
|
(4
|
)
|
||||||||||
June 30, 2016
|
0.75
|
3.38
|
(4
|
)
|
(4
|
)
|
||||||||||
September 30, 2016
|
0.67
|
2.81
|
(4
|
)
|
(4
|
)
|
||||||||||
December 31, 2016
|
0.81
|
2.89
|
(4
|
)
|
(4
|
)
|
||||||||||
For the Month Ended
|
||||||||||||||||
August 2016
|
0.67
|
2.18
|
(4
|
)
|
(4
|
)
|
||||||||||
September 2016
|
0.68
|
0.88
|
(4
|
)
|
(4
|
)
|
||||||||||
October 2016
|
0.81
|
1.30
|
(4
|
)
|
(4
|
)
|
||||||||||
November 2016
|
0.86
|
1.90
|
(4
|
)
|
(4
|
)
|
||||||||||
December 2016
|
1.53
|
2.89
|
(4
|
)
|
(4
|
)
|
||||||||||
January 2017
|
1.36
|
1.90
|
(4
|
)
|
(4
|
)
|
||||||||||
February 2017
|
0.72
|
1.45
|
(4
|
)
|
(4
|
)
|
||||||||||
March 2017 (through March 21, 2016)
|
0.65
|
0.80
|
(4
|
)
|
(4
|
)
|
(1) |
As reported in Norwegian Kroner. As of March 17, 2017, the U.S. Dollar/Norwegian Kroner exchange rate was $1.00/NOK 8.46.
|
(2) |
For the period from December 15, 2010, the date on which our common shares began trading on Norwegian OTC Market, until the end of the period.
|
(3) |
For the period from October 6, 2011, the date on which our common shares began "regular way" trading on the NASDAQ Global Select Market, until the end of the period.
|
(4) |
There were no trades during this period.
|
Item 10. |
Additional Information
|
A. |
Share capital
|
B. |
Memorandum and Articles of Association
|
C. |
Material Contracts
|
D. |
Exchange controls
|
E. |
Taxation
|
● |
at least 75% of the corporation's gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
● |
at least 50% of the average value of the assets held by the corporation during such taxable year produce, or are held for the production of, passive income.
|
● |
the excess distribution or gain would be allocated ratably over the Non-Electing Holders' aggregate holding period for the common shares;
|
● |
the amount allocated to the current taxable year and any taxable year before we became a PFIC would be taxed as ordinary income; and
|
● |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
● |
the gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business in the United States. If the Non-U.S. Holder is entitled to the benefits of an income tax treaty with respect to that gain, that gain is taxable only if it is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or
|
● |
the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
|
● |
fails to provide an accurate taxpayer identification number;
|
● |
is notified by the Internal Revenue Service that he has failed to report all interest or dividends required to be shown on his federal income tax returns; or
|
● |
in certain circumstances, fails to comply with applicable certification requirements.
|
F. |
Dividends and Paying Agents
|
G. |
Statement by Experts
|
H. |
Documents on Display
|
I. |
Subsidiary Information
|
Item 11. |
Quantitative and Qualitative Disclosures about Market Risk
|
Item 12. |
Description of Securities Other than Equity Securities
|
A. |
Debt Securities
|
B. |
Warrants and Rights
|
C. |
Other Securities
|
D. |
American Depository Shares
|
Item 13. |
Defaults, Dividend Arrearages and Delinquencies
|
Item 14. |
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
Item 15. |
Controls and Procedures
|
(a) |
Disclosure Controls and Procedures
|
(b) |
Management's Annual Report on Internal Control Over Financial Reporting
|
1. |
Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
|
2. |
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and
|
3. |
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company's assets that could have a material effect on the financial statements.
|
(c) |
Attestation Report of the Registered Public Accounting Firm
|
(d) |
Changes in Internal Control over Financial Reporting
|
Item 16A. |
Audit Committee Financial Expert
|
Item 16B. |
Code of Ethics
|
Item 16C. |
Principal Accountant Fees and Services
|
2015
|
2016
|
|||||||
(U.S. Dollars in thousands)
|
||||||||
Audit and audit-related fees
|
$
|
799
|
$
|
645
|
||||
Tax fees
|
31
|
27 | ||||||
Total fees
|
$
|
830
|
$ | 672 |
Item 16D. |
Exemptions from the Listing Standards for Audit Committees
|
Item 16E. |
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
Item 16F. |
Change in Registrant's Certifying Accountant
|
Item 16G. |
Corporate Governance
|
● |
In lieu of obtaining shareholder approval prior to the issuance of designated securities or the adoption of equity compensation plans or material amendments to such equity compensation plans, we will comply with provisions of Caymans law, providing that the board of directors approves share issuances and adoptions of and material amendments to equity compensation plans.
|
● |
Our board of directors will not hold regularly scheduled meetings at which only independent directors are present.
|
● |
As a foreign private issuer, we are not required to solicit proxies or provide proxy statements to NASDAQ pursuant to NASDAQ corporate governance rules or Cayman Islands law. Consistent with Cayman Islands law and as provided in our amended and restated memorandum and articles of association, we will notify our shareholders of meetings between 15 and 60 days before the meeting. This notification will contain, among other things, information regarding business to be transacted at the meeting. In addition, our bylaws provide that shareholders must give us between 150 and 180 days advance notice to properly introduce any business at a meeting of shareholders.
|
Item 16H. |
Mine Safety Disclosure
|
Item 17. |
Financial Statements
|
Item 18. |
Financial Statements
|
Item 18.1 |
Schedule I - Condensed Financial Information of Ocean Rig UDW Inc. (Parent Company Only)
|
Item 19. |
Exhibits
|
Exhibit Number
|
Description
|
1.1
|
Second Amended and Restated Articles of Incorporation of Ocean Rig UDW Inc., incorporated by reference to exhibit 3.1 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
1.2
|
Second Amended and Restated Bylaws of Ocean Rig UDW Inc., incorporated by reference to exhibit 3.2 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
1.3
|
Certificate of Designations of Rights, Preferences and Privileges of Series A Participating Preferred Stock of Ocean Rig UDW Inc., incorporated by reference to exhibit 4.3 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
1.4
|
Cayman Islands Amended and Restated Memorandum and Articles of Association, incorporated by reference to Exhibit 3.4 to the Post-Effective Amendment to Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-210118), filed with the SEC on July 7, 2016.
|
2.1
|
Form of Stock Certificate, incorporated by reference to exhibit 4.1 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 17, 2011.
|
2.2
|
Amended and Restated Stockholder Rights Agreement, dated June 3, 2011, incorporated by reference to exhibit 4.2 to the Registration Statement on Form F-4/A of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
2.3
|
Indenture, dated as of September 20, 2012, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017 incorporated by reference to exhibit 2.4 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
2.4
|
Supplemental Indenture, dated as of January 23, 2013, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., as Guarantor, the other Guarantors, and U.S. Bank National Association, as Trustee, amending and supplementing the Indenture, dated as of September 20, 2012, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017 incorporated by reference to exhibit 2.5 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
2.5
|
Second Supplemental Indenture, dated as of January 30, 2013, amending and supplementing the Indenture, dated as of September 20, 2012, as amended by a supplemental indenture, dated as of January 23, 2013, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017 incorporated by reference to exhibit 2.6 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
2.6
|
Third Supplemental Indenture, dated as of March 15, 2013, amending and supplementing the Indenture, dated as of September 20, 2012, as amended by a supplemental indenture, dated as of January 23, 2013, and a second supplemental indenture, dated as of January 30, 2013, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017 incorporated by reference to exhibit 2.7 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.1
|
Drillship Master Agreement between DryShips Inc. and a major shipyard in Korea incorporated by reference to exhibit 10.1 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
4.2
|
Novation Agreement between a major shipyard in Korea , DryShips Inc. and Ocean Rig UDW Inc., incorporated by reference to exhibit 10.2 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
4.3
|
Addendum No. 1 dated May 16, 2011 to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and a major shipyard in Korea , as novated by a Novation Agreement, dated December 30, 2010, a major shipyard in Korea , DryShips Inc. and Ocean Rig UDW Inc., incorporated by reference to exhibit 10.3 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
4.4
|
Addendum No. 2 dated January 27, 2012 to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and a major shipyard in Korea , as novated by a Novation Agreement, dated December 30, 2010 and as amended, incorporated by reference to exhibit 4.4 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 14, 2012.
|
4.5
|
Addendum No. 3 dated April 2, 2012, to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and a major shipyard in Korea , as novated by a Novation Agreement, dated December 30, 2010, and as amended incorporated by reference to exhibit 4.5 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.6
|
Addendum No. 4, dated September 3, 2012, to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and a major shipyard in Korea , as novated by a Novation Agreement, dated December 30, 2010, and as amended incorporated by reference to exhibit 4.6 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.7
|
Services Agreement, effective January 1, 2013, by and between Ocean Rig Management Inc. and Cardiff Drilling Inc incorporated by reference to exhibit 4.39 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.8
|
Consultancy Agreement, dated September 1, 2010, by and between DryShips Inc. and Vivid Finance Limited, incorporated by reference to exhibit 10.39 of the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940) filed with the SEC on August 1, 2011.
|
4.9
|
Addendum No. 1, effective January 1, 2013, to the Consultancy Agreement, dated September 1, 2010, by and between Ocean Rig UDW Inc. and Vivid Finance Inc incorporated by reference to exhibit 4.41 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.10
|
Consultancy Agreement, effective January 1, 2013, by and between Ocean Rig Management Inc. and Vivid Finance Limited incorporated by reference to exhibit 4.42 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.11
|
Registration Rights Agreement, dated as of March 20, 2012, by and between DryShips Inc. and Ocean Rig UDW Inc., incorporated by reference to exhibit 4.4 to the Registration Statement on Form F-1 of Ocean Rig UDW Inc. (Registration No. 333-180241), filed with the SEC on March 20, 2012 incorporated by reference to exhibit 4.43 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.12
|
Credit Agreement, dated July 12, 2013, by and among Drillships Finance Holding Inc., as Borrower, Ocean Rig UDW Inc., as Parent, Deutsche Bank AG New York Branch, as Administrative Agent and the companies listed therein, and the banks and financial institutions named therein, as Joint Global Coordinators, Joint Lead Arrangers and Joint Bookrunners and the banks and financial institutions named therein, as Joint Lead Arrangers and Joint Bookrunners, relating to a combined $1.8 billion of Tranche B-1 and Tranche B-2 Term Loans, incorporated by reference to exhibit 4.47 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.13
|
Incremental Amendment, dated July 26, 2013, by and among Drillships Finance Holding Inc., as Borrower, Ocean Rig UDW Inc., as Parent, Deutsche Bank AG New York Branch, as Administrative Agent under the Credit Agreement, dated July 12, 2013 (the "July 12, 2013, Credit Agreement"), and the Incremental Lenders, as defined therein, relating to an increase of $100,000,000 under the July 12, 2013 Credit Agreement, incorporated by reference to exhibit 4.48 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.14
|
Consultancy Agreement, dated September 9, 2013, by and between Eastern Med Consultants Inc., an indirect wholly owned subsidiary of Ocean Rig UDW Inc., and Azara Services S.A, incorporated by reference to exhibit 4.52 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.15
|
Amendment and Restatement Agreement dated as of February 7, 2014 relating to the Credit Agreement, dated July 12, 2013, as amended by the Incremental Agreement dated July 26, 2013, by and among Drillships Finance Holding Inc., as Borrower, Ocean Rig UDW Inc., as Parent, Deutsche Bank AG New York Branch, as Administrative Agent and the companies listed therein, and the banks and financial institutions named therein, relating to a re-financing of the combined $1.9 billion of Tranche B-1 and Tranche B-2 Term Loans, incorporated by reference to exhibit 4.54 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.16
|
Indenture, dated as of March 26, 2014, by and between Ocean Rig UDW Inc., as the Issuer, and Deutsche Bank Trust Company Americas, as Trustee, relating to 7.25% Senior Notes Due 2019, incorporated by reference to exhibit 4.55 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.17
|
Credit Agreement, dated July 25, 2014, by and among Drillships Ventures Projects Inc., as Finco, Drillships Ocean Ventures Inc., as Borrower, Ocean Rig UDW, as Parent, various lenders, Deutsche Bank AG New York Branch, as Administrative Agent and Pari Passu Collateral Agent and the other entities listed therein, relating to a Term Loan in an aggregate principal amount equal to $1.3 billion, incorporated by reference to exhibit 4.56 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.18
|
Pledge and Security Agreement, dated July 25, 2014, relating to the Credit Agreement dated July 25, 2014, by and among Ocean Rig UDW Inc., Drillships Ocean Ventures, Inc., Drillships Ventures Projects Inc., the subsidiaries identified therein, and Deutsche Bank AG New York Branch, as Pari Passu Collateral Agent, incorporated by reference to exhibit 4.57 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.19
|
Facilities Agreement, dated February 13, 2015, by and among Drillship Alonissos Shareholders Inc., as Borrower, Ocean Rig UDW Inc., as Parent and Guarantor, Drillship Alonissos Owners Inc., as Drillship Owner and Guarantor, and the other entities named therein, relating to $475 million Term Loan Facilities, incorporated by reference to exhibit 4.58 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.20
|
Management Agreement, dated December 13, 2013, by and between Drillship Skyros Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.59 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.21
|
Management Agreement, dated February 25, 2014, by and between Drillship Kythnos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.60 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.22
|
Management Agreement, dated April 17, 2014, by and between Drillship Hydra Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.61 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.23
|
Management Agreement, dated April 17, 2014, by and between Drillship Kithira Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.62 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.24
|
Management Agreement, dated April 17, 2014, by and between Drillship Paros Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.63 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.25
|
Management Agreement, dated April 17, 2014, by and between Ocean Rig 1 Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.64 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.26
|
Management Agreement, dated April 17, 2014, by and between Ocean Rig 2 Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.65 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.27
|
Management Agreement, dated April 17, 2014, by and between Drillship Skiathos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.66 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.28
|
Management Agreement, dated April 17, 2014, by and between Drillship Skopelos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.67 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.29
|
Management Agreement, dated February 17, 2015, by and between Drillship Alonissos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager, incorporated by reference to exhibit 4.68 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.30
|
Exchangeable Promissory Note, dated November 18, 2014, by and between DryShips, Inc., as Borrower, and Alley Finance Co., or its permitted assigns, as Noteholder, relating to a $120,000,000 loan, incorporated by reference to Exhibit 4.69 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2014, filed with the SEC on March 9, 2015.
|
4.31
|
Amended and Restated Secured Exchangeable Promissory Note, dated June 4, 2015, by and between DryShips Inc. and Ocean Rig UDW, Inc, incorporated by reference to exhibit 10.31 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. filed with the SEC on March 11, 2016.
|
4.32
|
Addendum No.1 to the Consultancy agreement, dated January 1, 2013, by and between Ocean Rig Management, Inc. and Vivid Finance Limited, dated July 29, 2015 incorporated by reference to exhibit 10.32 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. filed with the SEC on March 11, 2016.
|
4.33
|
Termination, Release and Share Transfer Agreement, dated August 13, 2015, by and among, DryShips Inc., Alley Finance Co and Ocean Rig UDW Inc. incorporated by reference to exhibit 10.33 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. filed with the SEC on March 11, 2016.
|
4.34
|
Time charter party for offshore service vessels by and between Dianthus Maritime Ltd. and Ocean Rig Global Chartering Inc. dated March 29, 2016, incorporated by reference to exhibit 4.54 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2016, filed with the SEC on March 13, 2017.
|
4.35
|
Time charter party for offshore service vessels between Fiore Shipping Inc. and Ocean Rig Global Chartering Inc. dated March 29, 2016, incorporated by reference to exhibit 4.55 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2016, filed with the SEC on March 13, 2017.
|
4.36
|
Management Services Agreement by and between Ocean Rig UDW Inc. and TMS Offshore Services Inc. dated March 31, 2016, incorporated by reference to Exhibit 4.34 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2015, filed with the SEC on March 31, 2016.
|
4.37
|
Termination Agreement by and between Ocean Rig Management and Cardiff Drilling Inc., dated March 31, 2016.
|
4.38
|
Termination Agreement by between Ocean Rig Management and Vivid Finance Limited dated March 31, 2016.
|
4.39
|
Stock Purchase Agreement by and between Dryships Inc. as Seller and Ocean Rig Investments Inc. as Buyer, dated April 5, 2016, incorporated by reference to Exhibit 4.112 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.40
|
Amendment No.1 to Facilities Agreement, dated February 13, 2015, by and among Drillship Alonissos Shareholders Inc., as Borrower, Ocean Rig UDW Inc., as Parent and Guarantor, Drillship Alonissos Owners Inc., as Drillship Owner and Guarantor, and the other entities named therein, relating to $475 million Term Loan Facilities, dated August 31, 2016.
|
4.41
|
Put and Call Option Agreement between Drillship Alonissos Shareholders Inc. as Borrower, Ocean Rig UDW Inc. as Purchaser and Drillship Alonissos Owners Inc. as Drillship Owner, dated August 31, 2016.
|
4.42
|
Trust Agreement of Drillship Alonissos Stock Trust, dated August 31, 2016.
|
4.43
|
Addendum to First Preferred Marshall Islands Mortgage by and between Drillships Alonissos Owners Inc. and DNB Bank ASA relating to the Ocean Rig Apollo dated August 31, 2016.
|
4.44
|
Share Security Deed by and between DrillshipAlonissos Stock Trust as Shareholder and DNB Bank ASA as Security Agent relating to the shares of Drillship Alonissos Shareholders Inc., dated August 31, 2016.
|
4.45
|
Termination Agreement by between Eastern Med Consultants Inc. and Azara Services S.A., dated as of December 30, 2016.
|
4.46
|
Termination Agreement by between Eastern Med Consultants Inc. and Basset Holdings Inc., dated as of December 30, 2016.
|
4.47
|
Addendum to Management Services Agreement by and between Ocean Rig UDW Inc. and TMS Offshore Services Inc. dated March 31, 2016, dated as of January 16, 2017.
|
8.1
|
Subsidiaries of Ocean Rig UDW Inc.
|
12.1
|
Rule 13a-14(a)/15d-14(a) Certification of Principal Executive Officer.
|
12.2
|
Rule 13a-14(a)/15d-14(a) Certification of Principal Financial Officer.
|
13.1
|
Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
13.2
|
Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
15.1
|
Consent of Independent Registered Public Accounting Firm.
|
101
|
The following financial information from Ocean Rig UDW Inc.'s Annual Report on Form 20-F for the fiscal year ended December 31, 2016, formatted in Extensible Business Reporting Language (XBRL):
(1) Consolidated Balance Sheets as of December 31, 2015 and 2016;
(2) Consolidated Statements of Operations for the years ended December 31, 2014, 2015 and 2016;
(3) Consolidated Statements of Comprehensive Income for the years ended December 31, 2014, 2015 and 2016;
(4) Consolidated Statements of Stockholders' Equity for the years ended December 31, 2014, 2015 and 2016;
(5) Consolidated Statements of Cash Flows for the years ended December 31, 2014, 2015 and 2016; and
(6) Notes to Consolidated Financial Statements.
|
OCEAN RIG UDW INC.
|
|||
By:
|
/s/ Anthony Kandylidis
|
||
Name:
|
Anthony Kandylidis
|
||
Title:
|
President and Chief Financial Officer
|
||
Page
|
|
Report of Independent Registered Public Accounting Firm
|
F-1
|
Report of Independent Registered Public Accounting Firm
|
F-2
|
Consolidated Balance Sheets as of December 31, 2015 and 2016
|
F-3
|
Consolidated Statements of Operations for the years ended December 31, 2014, 2015 and 2016
|
F-4
|
Consolidated Statements of Comprehensive Income / (loss) for the years ended December 31, 2014, 2015 and 2016
|
F-5
|
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2014, 2015 and 2016
|
F-6
|
Consolidated Statements of Cash Flows for the years ended December 31, 2014, 2015 and 2016
|
F-7
|
Notes to Consolidated Financial Statements
|
F-8
|
December 31, 2015
|
December 31, 2016
|
|||||||
ASSETS
|
||||||||
CURRENT ASSETS:
|
||||||||
Cash and cash equivalents
|
$
|
734,747
|
$
|
718,684
|
||||
Restricted cash
|
2,718
|
34,274
|
||||||
Trade accounts receivable, net of allowance for doubtful receivables (Note 2)
|
416,104
|
297,059
|
||||||
Other current assets (Note 5)
|
84,533
|
29,924
|
||||||
Total current assets
|
1,238,102
|
1,079,941
|
||||||
FIXED ASSETS, NET:
|
||||||||
Advances for drilling units under construction and related costs (Note 6)
|
394,852
|
545,469
|
||||||
Drilling units, machinery and equipment, net (Note 7)
|
6,336,892
|
2,438,292
|
||||||
Total fixed assets, net
|
6,731,744
|
2,983,761
|
||||||
OTHER NON-CURRENT ASSETS:
|
||||||||
Restricted cash (Note 2)
|
10,020
|
20,008
|
||||||
Financial instruments (Note 10)
|
3,494
|
-
|
||||||
Other non-current assets (Note 8)
|
36,860
|
7,834
|
||||||
Total non-current assets, net
|
50,374
|
27,842
|
||||||
Total assets
|
$
|
8,020,220
|
$
|
4,091,544
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
CURRENT LIABILITIES:
|
||||||||
Current portion of long-term debt, net of deferred financing costs (Note 9)
|
$
|
56,725
|
$
|
640,557
|
||||
Due to related parties (Note 4)
|
-
|
7,231
|
||||||
Accounts payable and other current liabilities
|
104,029
|
53,891
|
||||||
Accrued liabilities
|
118,231
|
86,750
|
||||||
Deferred revenue
|
113,548
|
23,582
|
||||||
Financial instruments (Note 10)
|
8,931
|
-
|
||||||
Total current liabilities
|
401,464
|
812,011
|
||||||
NON-CURRENT LIABILITIES
|
||||||||
Long term debt, net of current portion and deferred financing costs (Note 9)
|
4,271,743
|
3,247,216
|
||||||
Financial instruments (Note 10)
|
2,743
|
-
|
||||||
Deferred revenue
|
66,643
|
19,615
|
||||||
Other non-current liabilities
|
2,862
|
1,952
|
||||||
Total non-current liabilities
|
4,343,991
|
3,268,783
|
||||||
COMMITMENTS AND CONTINGENCIES (Note 17)
|
-
|
-
|
||||||
STOCKHOLDERS' EQUITY:
|
||||||||
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2015 and 2016, nil issued and outstanding at December 31, 2015 and 2016, respectively
|
-
|
-
|
||||||
Common stock, $0.01 par value; 1,000,000,000 shares authorized, at December 31, 2015 and 2016, 160,888,606 shares issued and outstanding at December 31, 2015 and 2016 (Note 11)
|
1,609
|
1,609
|
||||||
Treasury stock; 22,222,222 shares at $0.01 par value as at December 31, 2015 and 78,301,755 shares at $0.01 par value at December 31, 2016 (Note 4 and Note 11)
|
(222
|
)
|
(783
|
)
|
||||
Additional paid-in capital
|
3,572,549
|
3,524,426
|
||||||
Accumulated other comprehensive income/ (loss) (Note 12)
|
(22,841
|
)
|
3,346
|
|||||
Accumulated deficit
|
(276,330
|
)
|
(3,517,848
|
)
|
||||
Total stockholders' equity
|
3,274,765
|
10,750
|
||||||
Total liabilities and stockholders' equity
|
$
|
8,020,220
|
$
|
4,091,544
|
Year Ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
REVENUES:
|
||||||||||||
Revenues
|
$
|
1,817,077
|
$
|
1,748,200
|
$
|
1,653,667
|
||||||
EXPENSES:
|
||||||||||||
Drilling units operating expenses
|
727,832
|
582,122
|
454,329
|
|||||||||
Depreciation and amortization
|
324,302
|
362,587
|
334,155
|
|||||||||
Impairment loss (Note 6 and Note 7)
|
-
|
414,986
|
3,776,338
|
|||||||||
General and administrative expenses
|
131,745
|
100,314
|
103,961
|
|||||||||
Loss on sale of fixed assets
|
-
|
5,177
|
25,274
|
|||||||||
Legal settlements and other, net (Note 17)
|
(721
|
)
|
(2,591
|
)
|
(8,720
|
)
|
||||||
Operating income / (expenses)
|
633,919
|
285,605
|
(3,031,670
|
)
|
||||||||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs (Note 13)
|
(300,131
|
)
|
(280,348
|
)
|
(226,981
|
)
|
||||||
Interest income
|
12,227
|
9,811
|
3,449
|
|||||||||
Loss on interest rate swaps (Note 10)
|
(12,671
|
)
|
(11,513
|
)
|
(4,388
|
)
|
||||||
Gain from repurchase of senior notes (Note 9)
|
-
|
189,174
|
125,001
|
|||||||||
Other, net
|
4,282
|
(12,899
|
)
|
(614
|
)
|
|||||||
Total other expenses, net
|
(296,293
|
)
|
(105,775
|
)
|
(103,533
|
)
|
||||||
INCOME / (LOSS) BEFORE INCOME TAXES
|
337,626
|
179,830
|
(3,135,203
|
)
|
||||||||
Income taxes (Note 14)
|
(77,823
|
)
|
(99,816
|
)
|
(106,315
|
)
|
||||||
NET INCOME / (LOSS) ATTRIBUTABLE TO OCEAN RIG UDW INC.
|
$
|
259,803
|
$
|
80,014
|
$
|
(3,241,518
|
)
|
|||||
NET INCOME / (LOSS) ATTRIBUTABLE TO OCEAN RIG UDW INC. COMMON STOCKHOLDERS (Note 15)
|
$
|
259,031
|
$
|
78,839
|
$
|
(3,241,518
|
)
|
|||||
EARNINGS / (LOSS) PER SHARE ATTRIBUTABLE TO COMMON STOCKHOLDERS, BASIC AND DILUTED (Note 15)
|
$
|
1.96
|
$
|
0.57
|
$
|
(33.43
|
)
|
|||||
WEIGHTED AVERAGE NUMBER OF COMMON SHARES, BASIC AND DILUTED (Note 15)
|
131,837,227
|
138,757,176
|
96,950,847
|
|||||||||
Dividend declared per share
|
0.57
|
0.38
|
-
|
Year Ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Net income / (loss)
|
$
|
259,803
|
$
|
80,014
|
$
|
(3,241,518
|
)
|
|||||
Other Comprehensive income :
|
||||||||||||
Reclassification of realized losses associated with capitalized interest to the Consolidated Statement of Operations (Note 10)
|
1,034
|
1,035
|
26,187
|
|||||||||
Actuarial gains/ (losses)
|
(1,518
|
)
|
62
|
-
|
||||||||
Total Other Comprehensive income / (loss)
|
(484
|
)
|
1,097
|
26,187
|
||||||||
Total Comprehensive income / (loss)
|
$
|
259,319
|
$
|
81,111
|
$
|
(3,215,331
|
)
|
|||||
Common Stock
|
Treasury Stock
|
|||||||||||||||||||||||||||||||
Shares
|
Par Value
|
Shares
|
Par Value
|
Additional
Paid-in Capital
|
Accumulated
Other Comprehensive Income/Loss
|
Accumulated
Deficit
|
Total Stockholders' Equity
|
|||||||||||||||||||||||||
BALANCE, January 1, 2014
|
131,875,128
|
$
|
1,319
|
-
|
$
|
-
|
$
|
3,492,650
|
$
|
(23,454
|
)
|
$
|
(490,672
|
)
|
$
|
2,979,843
|
||||||||||||||||
Net income
|
-
|
-
|
-
|
-
|
-
|
259,803
|
259,803
|
|||||||||||||||||||||||||
Issuance of non-vested shares
|
157,500
|
1
|
-
|
-
|
(1
|
)
|
-
|
-
|
-
|
|||||||||||||||||||||||
Cancellation of previously issued vested shares
|
(15,450
|
)
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
-
|
-
|
3,576
|
-
|
-
|
3,576
|
||||||||||||||||||||||||
Establishment costs for issuance of subsidiaries shares
|
-
|
-
|
-
|
-
|
(1,268
|
)
|
-
|
-
|
(1,268
|
)
|
||||||||||||||||||||||
Dividends declared and paid
|
-
|
-
|
-
|
-
|
-
|
-
|
(75,194
|
)
|
(75,194
|
)
|
||||||||||||||||||||||
Other comprehensive loss
|
-
|
-
|
-
|
-
|
-
|
(484
|
)
|
-
|
(484
|
)
|
||||||||||||||||||||||
BALANCE, December 31, 2014
|
132,017,178
|
$
|
1,320
|
-
|
$
|
-
|
$
|
3,494,957
|
$
|
(23,938
|
)
|
$
|
(306,063
|
)
|
$
|
3,166,276
|
||||||||||||||||
Net income
|
-
|
-
|
-
|
-
|
-
|
-
|
80,014
|
80,014
|
||||||||||||||||||||||||
Issuance of non-vested shares
|
300,000
|
3
|
-
|
-
|
(3
|
)
|
-
|
-
|
-
|
|||||||||||||||||||||||
Issuance of common stock
|
28,571,428
|
286
|
-
|
-
|
193,697
|
-
|
-
|
193,983
|
||||||||||||||||||||||||
Treasury stock
|
-
|
-
|
(22,222,222
|
)
|
$
|
(222
|
)
|
(119,778
|
)
|
-
|
-
|
(120,000
|
)
|
|||||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
-
|
-
|
3,676
|
-
|
-
|
3,676
|
||||||||||||||||||||||||
Dividends declared and paid
|
-
|
-
|
-
|
-
|
-
|
-
|
(50,281
|
)
|
(50,281
|
)
|
||||||||||||||||||||||
Other comprehensive income
|
-
|
-
|
-
|
-
|
-
|
1,097
|
-
|
1,097
|
||||||||||||||||||||||||
BALANCE, December 31, 2015
|
160,888,606
|
$
|
1,609
|
(22,222,222
|
)
|
$
|
(222
|
)
|
$
|
3,572,549
|
$
|
(22,841
|
)
|
$
|
(276,330
|
)
|
$
|
3,274,765
|
||||||||||||||
Net loss
|
-
|
-
|
-
|
-
|
-
|
-
|
(3,241,518
|
)
|
(3,241,518
|
)
|
||||||||||||||||||||||
Treasury stock
|
-
|
-
|
(56,079,533
|
)
|
(561
|
)
|
(49,350
|
)
|
-
|
-
|
(49,911
|
)
|
||||||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
-
|
-
|
1,227
|
-
|
-
|
1,227
|
||||||||||||||||||||||||
Other comprehensive income
|
-
|
-
|
-
|
-
|
-
|
26,187
|
-
|
26,187
|
||||||||||||||||||||||||
BALANCE, December 31, 2016
|
160,888,606
|
$
|
1,609
|
(78,301,755
|
) |
$
|
(783
|
) |
$
|
3,524,426
|
$
|
3,346
|
$
|
(3,517,848
|
)
|
$
|
10,750
|
Years Ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Cash Flows from Operating Activities:
|
||||||||||||
Net income/(loss)
|
$
|
259,803
|
$
|
80,014
|
$
|
(3,241,518
|
)
|
|||||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||||||||||
Depreciation and amortization
|
324,302
|
362,587
|
334,155
|
|||||||||
Amortization and write-off of financing fees
|
42,995
|
24,033
|
21,040
|
|||||||||
Amortization income of deferred financing fees
|
(219
|
)
|
(2,781
|
)
|
-
|
|||||||
Change in fair value of derivatives
|
(15,909
|
)
|
(8,217
|
)
|
(8,180
|
)
|
||||||
Loss on sale of fixed assets
|
-
|
5,177
|
25,274
|
|||||||||
Allowance for doubtful receivables
|
-
|
114,613
|
-
|
|||||||||
Gain from repurchase of senior notes
|
-
|
(189,174
|
)
|
(125,001
|
)
|
|||||||
Effect of exchange rate changes on cash
|
-
|
6,748
|
-
|
|||||||||
Impairment loss
|
-
|
414,986
|
3,776,338
|
|||||||||
Amortization of stock based compensation
|
3,576
|
3,676
|
1,227
|
|||||||||
Changes in operating assets and liabilities:
|
||||||||||||
Trade accounts receivable
|
(55,469
|
)
|
(188,330
|
)
|
119,045
|
|||||||
Other current and non-current assets
|
38,460
|
36,027
|
73,038
|
|||||||||
Due to/(from) related parties
|
11,287
|
(11,287
|
)
|
7,231
|
||||||||
Accounts payable and other current and non-current liabilities
|
(25,728
|
)
|
19,837
|
(51,048
|
)
|
|||||||
Accrued liabilities
|
(40,131
|
)
|
(56,502
|
)
|
(31,478
|
)
|
||||||
Deferred revenue
|
(73,150
|
)
|
(18,395
|
)
|
(136,994
|
)
|
||||||
Net Cash Provided by Operating Activities
|
469,817
|
593,012
|
763,129
|
|||||||||
Cash Flows from Investing Activities:
|
||||||||||||
Loan to former parent
|
(120,000
|
)
|
-
|
-
|
||||||||
Proceeds from arrangement fees
|
3,000
|
-
|
-
|
|||||||||
Advances for drilling units under construction and related costs
|
(292,984
|
)
|
(89,867
|
)
|
(242,990
|
)
|
||||||
Drilling units, machinery, equipment and other improvements/ upgrades
|
(455,997
|
)
|
(543,976
|
)
|
(97,163
|
)
|
||||||
Proceeds/(loss) from sale of fixed assets
|
-
|
300
|
(10,850
|
)
|
||||||||
(Increase)/decrease in restricted cash
|
50,997
|
(10,174
|
)
|
(41,544
|
)
|
|||||||
Net Cash Used in Investing Activities
|
(814,984
|
)
|
(643,717
|
)
|
(392,547
|
)
|
||||||
Cash Flows from Financing Activities:
|
||||||||||||
Proceeds from short/long-term credit facilities, terms loans and senior notes
|
2,250,000
|
462,000
|
-
|
|||||||||
Principal payments and repayments of long-term debt and senior notes
|
(1,862,250
|
)
|
(61,179
|
)
|
(215,279
|
)
|
||||||
Senior notes repurchase
|
-
|
(273,673
|
)
|
(121,455
|
)
|
|||||||
Net proceeds from common stock issuance
|
-
|
192,714
|
-
|
|||||||||
Repurchase of common stock
|
- |
-
|
(49,911
|
)
|
||||||||
Dividends paid
|
(75,194
|
)
|
(50,281
|
)
|
-
|
|||||||
Payments for issuance of subsidiaries shares
|
(466
|
) |
-
|
-
|
||||||||
Payment of financing costs, net
|
(43,457
|
) |
(6,314
|
)
|
-
|
|||||||
Net Cash Provided by/(Used in) Financing Activities
|
268,633
|
263,267
|
(386,645
|
)
|
||||||||
Effect of exchange rate changes on cash
|
-
|
(6,748
|
)
|
-
|
||||||||
Net increase/(decrease) in cash and cash equivalents
|
(76,534
|
)
|
205,814
|
(16,063
|
)
|
|||||||
Cash and cash equivalents at beginning of year
|
605,467
|
528,933
|
734,747
|
|||||||||
Cash and cash equivalents at end of year
|
$
|
528,933
|
$
|
734,747
|
$
|
718,684
|
||||||
SUPPLEMENTAL CASH FLOW INFORMATION:
|
||||||||||||
Cash paid during the years for:
|
||||||||||||
Interest, net of amount capitalized
|
212,014
|
256,056
|
254,207
|
|||||||||
Income taxes
|
60,374
|
60,687
|
70,983
|
|||||||||
Non cash financing and investing activities:
|
||||||||||||
Issuance of non-vested shares
|
1
|
3
|
-
|
Year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Customer A
|
14
|
%
|
14
|
%
|
11
|
%
|
||||||
Customer B
|
18
|
%
|
19
|
%
|
20
|
%
|
||||||
Customer C
|
12
|
%
|
13
|
%
|
-
|
|||||||
Customer D
|
30
|
%
|
15
|
%
|
31
|
%
|
||||||
Customer E
|
14
|
%
|
13
|
%
|
14
|
%
|
||||||
Customer F
|
-
|
15
|
%
|
18
|
%
|
December 31, 2016
|
||||
ASSETS
|
||||
CURRENT ASSETS:
|
||||
Cash and cash equivalents
|
$
|
167
|
||
Restricted cash
|
31,956
|
|||
Trade accounts receivable, net
|
3,341
|
|||
Other current assets
|
1,884
|
|||
Total current assets
|
37,348
|
|||
FIXED ASSETS, NET:
|
||||
Drilling units, machinery and equipment, net
|
675,420
|
|||
Total fixed assets, net
|
675,420
|
|||
OTHER NON-CURRENT ASSETS:
|
||||
Restricted cash
|
20,008
|
|||
Total non-current assets, net
|
20,008
|
|||
Total assets
|
$
|
732,776
|
||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||
CURRENT LIABILITIES:
|
||||
Current portion of long-term debt, net of deferred financing costs
|
$
|
164,218
|
||
Accounts payable and other current liabilities
|
5,218
|
|||
Accrued liabilities
|
1,791
|
|||
Total current liabilities
|
171,227
|
|||
NON-CURRENT LIABILITIES
|
||||
Long term debt, net of current portion and deferred financing costs
|
82,947
|
|||
Total non-current liabilities
|
82,947
|
|||
COMMITMENTS AND CONTINGENCIES
|
-
|
|||
SHAREHOLDERS' EQUITY:
|
||||
Common stock, $20 par value; 1,000 shares authorized and issued at December 31, 2016
|
20
|
|||
Additional paid-in capital
|
960
|
|||
Retained earnings
|
477,622
|
|||
Total shareholders' equity
|
478,602
|
|||
Total liabilities and shareholders' equity
|
$
|
732,776
|
Year ended December 31,
|
||||||||
2015
|
2016
|
|||||||
Balance Sheet
|
||||||||
Due to related parties
|
$
|
-
|
$
|
7,231
|
||||
Advances for drilling units under construction and related costs
|
$
|
394
|
$
|
1,569
|
||||
Drilling units, machinery and equipment, net
|
2,961
|
488
|
||||||
Accrued liabilities
|
$
|
6,432
|
$
|
3,100
|
Year ended December 31,
|
||||||||||||
Statement of Operations
|
2014
|
2015
|
2016
|
|||||||||
Revenues – commission fees
|
$
|
16,826
|
$
|
16,524
|
$
|
14,925
|
||||||
Drilling units operating expenses
|
-
|
-
|
4,209
|
|||||||||
Amortization and write-off of financing fees - DryShips
|
-
|
2,781
|
-
|
|||||||||
General and administrative expenses
|
32,660
|
7,409
|
24,924
|
|||||||||
Interest income
|
$
|
1,164
|
$
|
6,024
|
$
|
-
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Inventories
|
$
|
18,088
|
$
|
12,988
|
||||
Deferred mobilization expenses
|
43,825
|
6,351
|
||||||
Prepayments and advances
|
20,607
|
10,500
|
||||||
Other
|
2,013
|
85
|
||||||
Total
|
$
|
84,533
|
$
|
29,924
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Balance at beginning of year
|
$
|
622,507
|
$
|
394,852
|
||||
Advances for drilling units under construction and related costs
|
500,031
|
242,988
|
||||||
Drilling units delivered
|
(727,686
|
)
|
-
|
|||||
Impairment loss (advances and related costs for drilling unit under construction)
|
-
|
(92,371)
|
||||||
Balance at end of year
|
$
|
394,852
|
$
|
545,469
|
Cost
|
Accumulated
Depreciation
|
Net Book Value
|
||||||||||
Balance December 31, 2014
|
$
|
7,331,372
|
$
|
(1,123,739
|
)
|
$
|
6,207,633
|
|||||
Additions/ Transfer from drilling units under construction
|
909,830
|
-
|
909,830
|
|||||||||
Disposal of assets
|
(5,477
|
)
|
-
|
(5,477
|
)
|
|||||||
Impairment loss
|
(976,730
|
)
|
561,744
|
(414,986
|
)
|
|||||||
Depreciation
|
-
|
(360,108
|
)
|
(360,108
|
)
|
|||||||
Balance December 31, 2015
|
$
|
7,258,995
|
(922,103
|
)
|
6,336,892
|
|||||||
Additions
|
99,515
|
-
|
99,515
|
|||||||||
Disposal of assets
|
(7,756
|
)
|
133
|
(7,623
|
)
|
|||||||
Impairment loss
|
(3,658,815
|
)
|
-
|
(3,658,815
|
)
|
|||||||
Depreciation
|
-
|
(331,677
|
)
|
(331,677
|
)
|
|||||||
Balance December 31, 2016
|
$
|
3,691,939
|
(1, 253,647
|
)
|
2,438,292
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Deferred mobilization expenses
|
$
|
23,992
|
$
|
5,564
|
||||
Intangible assets, net
|
3,289
|
1,845
|
||||||
Prepaid investments
|
9,579
|
425
|
||||||
Total
|
$
|
36,860
|
$
|
7,834
|
December 31,
2015
|
December 31,
2016
|
|||||||
$1.3 billion Senior Secured Term Loan B Facility
|
$
|
1,283,750
|
$
|
1,270,750
|
||||
$1.9 billion Secured Term Loan B Facility
|
1,857,250
|
1,838,250
|
||||||
$462 million Senior Secured Credit Facility
|
432,821
|
249,542
|
||||||
$500 million Senior Unsecured Notes
|
229,411
|
130,974
|
||||||
$800 million Senior Secured Notes
|
607,742
|
459,723
|
||||||
Less: Deferred financing costs
|
(82,506
|
)
|
(61,466
|
)
|
||||
Total debt
|
4,328,468
|
3,887,773
|
||||||
Less: Current portion
|
(56,725
|
)
|
(640,557
|
)
|
||||
Long-term portion
|
$
|
4,271,743
|
$
|
3,247,216
|
Loan
|
Loan Agreement Date
|
Original
Amount
|
December 31,
2015
|
Repayments/ Repurchase of senior notes
|
December 31,
2016
|
||||||||||||
$800 million Senior Notes
|
September 20, 2012
|
$
|
800,000
|
607,742
|
(148,019
|
)
|
$
|
459,723
|
|||||||||
$1.9 billion Secured Term Loan B Facility
|
July 12, 2013
|
1,900,000
|
1,857,250
|
(19,000
|
)
|
1,838,250
|
|||||||||||
$500 million Senior Unsecured
Notes
|
March 26, 2014
|
500,000
|
229,411
|
(98,437
|
)
|
130,974
|
|||||||||||
$1.3 billion Senior Secured
Term Loan B
|
July 25, 2014
|
1,300,000
|
1,283,750
|
(13,000
|
)
|
1,270,750
|
|||||||||||
$462 million Senior Secured Credit Facility
|
February 13, 2015
|
$
|
462,000
|
$
|
432,821
|
$
|
(183,279
|
)
|
$
|
249,542
|
|||||||
$
|
4,410,974
|
$
|
(461,735
|
)
|
$
|
3,949,239
|
2017
|
658,063
|
|||
2018
|
115,202
|
|||
2019
|
162,974
|
|||
2020
|
1,794,250
|
|||
2021
|
1,218,750
|
|||
Total principal payments
|
3,949,239
|
|||
Less: Financing fees
|
(61,466
|
)
|
||
Total debt
|
$
|
3,887,773
|
Derivatives not designated
as Hedging Instruments
|
Balance Sheet Location
|
December 31, 2015
Fair value
|
December 31, 2016
Fair value
|
||||||
Interest rate swaps
|
Financial Instruments non-current assets
|
$
|
3,494
|
$
|
-
|
||||
Interest rate swaps
|
Financial Instruments current liabilities
|
(8,931
|
)
|
-
|
|||||
Interest rate swaps
|
Financial Instruments non-current liabilities
|
(2,743
|
)
|
-
|
|||||
Total derivatives
|
$
|
(8,180
|
)
|
$
|
-
|
Amount of Gain/(Loss)
|
|||||||||||||
Derivatives not designated
as hedging instruments
|
Location of Gain or (Loss)
Recognized
|
Year ended
December 31, 2014
|
Year ended
December 31, 2015
|
Year ended
December 31, 2016
|
|||||||||
Interest rate swaps
|
Gain/ (Loss) on interest rate swaps
|
$
|
(12,671
|
)
|
$
|
(11,513
|
)
|
$
|
(4,388
|
)
|
December 31,
2015
|
Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
|||||||||||||
Interest rate swaps-asset position
|
$
|
3,494
|
-
|
3,494
|
$
|
-
|
||||||||||
Interest rate swaps-liability position
|
(11,674
|
)
|
-
|
(11,674
|
)
|
-
|
||||||||||
Total
|
$
|
(8,180
|
)
|
-
|
(8,180
|
)
|
$
|
-
|
Quoted Prices in Active
Markets for Identical
Assets/Liabilities
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Unobservable Inputs
(Level 3)
|
Impairment loss
|
|||||||||||||
Non-Recurring measurements:
|
||||||||||||||||
Long-lived assets
|
$
|
-
|
$
|
610,000
|
$
|
-
|
$
|
(414,986
|
)
|
|||||||
Quoted Prices in Active
Markets for Identical
Assets/Liabilities
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Unobservable Inputs
(Level 3)
|
Impairment loss
|
|||||||||||||
Non-Recurring measurements:
|
||||||||||||||||
Long-lived assets
|
$
|
-
|
$
|
1,035,499
|
$
|
-
|
$
|
(3,658,815
|
)
|
|||||||
Number of
non vested shares
|
Weighted average grant date fair value per non vested shares
|
|||||||
Balance December 31, 2014
|
612,798
|
$
|
13.49
|
|||||
Granted
|
186,702
|
6.95
|
||||||
Forfeited
|
(63,950
|
)
|
12.29
|
|||||
Vested
|
(330,252
|
)
|
13.33
|
|||||
Balance December 31, 2015
|
405,298
|
$
|
10.80
|
|||||
Forfeited
|
(155,298
|
)
|
10.08
|
|||||
Vested
|
(150,000
|
)
|
12.43
|
|||||
Balance December 31, 2016
|
100,000
|
$
|
9.46
|
Number of
vested shares
|
Weighted average grant date fair value per vested shares
|
|||||||
As at December 31, 2014
|
309,452
|
$
|
17.22
|
|||||
Granted and vested
|
52,802
|
6.89
|
||||||
Non vested shares granted in prior years and vested 2015
|
277,450
|
14.56
|
||||||
Granted and vested shares in prior years, but cancelled during 2015
|
(29,817
|
)
|
16.59
|
|||||
As at December 31, 2015
|
609,887
|
$
|
15.15
|
|||||
Vested shares granted in prior years
|
150,000
|
12,43
|
||||||
Granted and vested shares in prior years, but cancelled during 2016
|
(416,002
|
)
|
13.52
|
|||||
As at December 31, 2016
|
343,885
|
$
|
15.94
|
|||||
December 31,
|
||||||||
2015
|
2016
|
|||||||
Cash flows hedges realized loss
|
$
|
(26,187
|
)
|
$
|
-
|
|||
Actuarial pension gain
|
3,346
|
3,346
|
||||||
Total
|
$
|
(22,841
|
)
|
$
|
3,346
|
December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Interest costs on long term debt
|
$
|
261,137
|
$
|
276,510
|
$
|
235,182
|
||||||
Amortization and write off of financing fees (Note 2)
|
42,995
|
24,033
|
21,040
|
|||||||||
Discount on receivable from drilling contract
|
-
|
3,018
|
(2,821
|
)
|
||||||||
Capitalized borrowing costs (Note 2)
|
(37,342
|
)
|
(26,055
|
)
|
(28,265
|
)
|
||||||
Commissions, commitment fees and other financial expenses
|
33,341
|
2,842
|
1,845
|
|||||||||
Total
|
$
|
300,131
|
$
|
280,348
|
$
|
226,981
|
Year ended December 31
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Domestic income/ (loss) (Marshall Islands/ Cayman Islands)
|
$
|
(161,913
|
)
|
$
|
219,900
|
$
|
126,244
|
|||||
Foreign income (January 1, 2016 to April 14, 2016)
|
499,539
|
185,742
|
93,633
|
|||||||||
(Domestic loss) Cayman Islands
|
-
|
-
|
(97,939
|
)
|
||||||||
Foreign income (April 15, 2016 to December 31, 2016)
|
-
|
-
|
394,196
|
|||||||||
Total income before taxes, excluding impairment loss and gain from repurchases of senior notes
|
$
|
337,626
|
$
|
405,642
|
$
|
516,134
|
Year Ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Current Tax expense
|
$
|
77,823
|
$
|
99,816
|
$
|
106,315
|
||||||
Deferred Tax expense
|
-
|
-
|
-
|
|||||||||
Income taxes
|
$
|
77,823
|
$
|
99,816
|
$
|
106,315
|
||||||
Effective tax rate on income / (loss) excluding impairment loss and gain from repurchase of the senior secured notes
|
23.1
|
%
|
24.6
|
%
|
20.6
|
%
|
Year Ended December 31,
|
||||||||||||
Reconciliation of total tax expense:
|
2014
|
2015
|
2016
|
|||||||||
Income tax
|
70,441
|
94,331
|
106,315
|
|||||||||
Taxes on litigation matters subject to statutory rates, including interest and penalties
|
7,382
|
5,485
|
-
|
|||||||||
Total
|
$
|
77,823
|
$
|
99,816
|
$
|
106,315
|
Year ended December 31,
|
||||||||
2015
|
2016
|
|||||||
Deferred tax assets
|
||||||||
Losses carried forward
|
13,197
|
10,110
|
||||||
Total deferred tax assets
|
$
|
13,197
|
$
|
10,110
|
||||
Less: valuation allowance
|
(13,197
|
)
|
(10,110
|
)
|
||||
Total deferred tax assets, net
|
$
|
-
|
$
|
-
|
2014
|
2015
|
2016 | ||||||||||||||||||||||||||||||||||
Income (numerator)
|
Weighted- average number of outstanding shares (denominator)
|
Amount per share
|
Income (numerator)
|
Weighted- average number of outstanding share (denominator)
|
Amount per share
|
Loss (numerator)
|
Weighted- average number of outstanding shares (denominator)
|
Amount per share
|
||||||||||||||||||||||||||||
Net income/ loss
|
$
|
259,803
|
-
|
-
|
$
|
80,014
|
-
|
-
|
$
|
(3,241,518
|
)
|
-
|
-
|
|||||||||||||||||||||||
Less: Allocation of undistributed earnings to non-vested stock
|
(772
|
)
|
-
|
-
|
(1,175
|
)
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||||
Basic and diluted Earnings/ (loss) per share attributable to common stockholders
|
$
|
259,031
|
$
|
131,837,227
|
1.96
|
$
|
78,839
|
$
|
138,757,176
|
0.57
|
$
|
(3,241,518
|
)
|
96,950,847
|
(33.43
|
)
|
Country
|
2014
|
2015
|
2016
|
|||||||||
Angola
|
807,742
|
527,098
|
500,413
|
|||||||||
Brazil
|
581,635
|
581,438
|
517,885
|
|||||||||
Congo
|
-
|
157,235
|
241,953
|
|||||||||
Norway
|
220,044
|
231,189
|
74,925
|
|||||||||
Falklands
|
-
|
154,606
|
21,106
|
|||||||||
Senegal
|
- |
52,214
|
289,162
|
|||||||||
Ivory Coast
|
97,232
|
33,723
|
1,164
|
|||||||||
South Africa
|
110,424
|
-
|
-
|
|||||||||
Other service revenues
|
-
|
10,697
|
7,059
|
|||||||||
Total service revenues
|
$
|
1,817,077
|
1,748,200
|
1,653,667
|
2018
|
2019
|
Total
|
||||||||||
Drilling units building contracts
|
$
|
417,931
|
520,165
|
$
|
938,096
|
|||||||
Total obligations
|
$
|
417,931
|
520,165
|
$
|
938,096
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
ASSETS
|
||||||||
CURRENT ASSETS:
|
||||||||
Cash and cash equivalents
|
$
|
35
|
$
|
26
|
||||
Other current assets
|
182
|
194
|
||||||
Total current assets
|
217
|
220
|
||||||
NON-CURRENT ASSETS:
|
||||||||
Investments in subsidiaries*
|
3,781,705
|
143,381
|
||||||
Total non-current assets
|
3,781,705
|
143,381
|
||||||
Total assets
|
$
|
3,781,922
|
$
|
143,601
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
CURRENT LIABILITIES:
|
||||||||
Other current liabilities
|
$
|
9,913
|
$
|
3,007
|
||||
Total current liabilities
|
9,913
|
3,007
|
||||||
NON-CURRENT LIABILITIES
|
||||||||
Long term debt, net of current portion
|
497,244
|
129,844
|
||||||
Total non-current liabilities
|
497,244
|
129,844
|
||||||
STOCKHOLDERS' EQUITY:
|
||||||||
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2015 and 2016, nil issued and outstanding at December 31, 2015 and 2016, respectively
|
- | - | ||||||
Common stock, $0.01par value; 1,000,000,000 shares authorized, at December 31, 2015 and 2016, 160,888,606 issued and outstanding at December 31, 2015 and 2016, respectively
|
1,609
|
1,609
|
||||||
Treasury stock ; 22,222,222 shares at December 31, 2015 and $0.01 par value; 78,301,755 shares at December 31, 2016
|
(222
|
)
|
(783
|
)
|
||||
Additional paid-in capital
|
3,572,549
|
3,524,426
|
||||||
Accumulated other comprehensive loss
|
(22,841
|
)
|
3,346
|
|
||||
Accumulated deficit
|
(276,330
|
)
|
(3,517,848
|
)
|
||||
Total stockholders' equity
|
3,274,765
|
10,750
|
||||||
Total liabilities and stockholders' equity
|
$
|
3,781,922
|
$
|
143,601
|
||||
For the year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
EXPENSES:
|
||||||||||||
General and administrative expenses
|
$
|
7,983
|
$
|
6,924
|
17,995
|
|||||||
Operating loss
|
(7,983
|
)
|
(6,924
|
)
|
(17,995
|
)
|
||||||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs
|
(82,109
|
)
|
(65,988
|
)
|
(37,905
|
)
|
||||||
Interest income
|
1,383
|
-
|
-
|
|||||||||
Other, net
|
6,224
|
5,041
|
177
|
|||||||||
Total other (expenses), net
|
(74,502
|
)
|
(60,947
|
)
|
(37,728
|
)
|
||||||
Equity/(loss) in earnings of subsidiaries*
|
342,288
|
147,885
|
(3,185,795
|
)
|
||||||||
Net income/(loss)
|
$
|
259,803
|
$
|
80,014
|
$ |
(3,241,518
|
)
|
|||||
Net Income/(loss) To Common Stockholders
|
$ |
259,031
|
$ |
78,839
|
$ |
(3,241,518
|
)
|
|||||
Earnings/(loss) per common share, basic and diluted
|
$ |
1.96
|
$ |
0.57
|
$ |
(33.43
|
)
|
|||||
Weighted average number of shares, basic and diluted
|
131,837,227
|
138,757,176
|
96,950,847
|
For the year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Net income/(loss)
|
$
|
259,803
|
$
|
80,014
|
(3,241,518
|
)
|
||||||
Other Comprehensive income / (loss):
|
||||||||||||
Reclassification of realized losses associated with capitalized interest to Consolidated Statement of Operations
|
1,034
|
1,035
|
26,187
|
|||||||||
Actuarial gains/(losses)
|
(1,518
|
)
|
62
|
-
|
||||||||
Other Comprehensive income / (loss)
|
(484
|
)
|
1,097
|
26,187
|
||||||||
Total Comprehensive income /(loss)
|
$
|
259,319
|
$
|
81,111
|
(3,215,331
|
)
|
For the year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Net Cash Used in Operating Activities
|
$
|
(88,302
|
)
|
237,535
|
$
|
(54,326
|
)
|
|||||
Cash Flows from Investing Activities:
|
||||||||||||
Investments in subsidiaries
|
289,654
|
(379,993
|
)
|
54,317
|
||||||||
Loan to parent
|
(120,000
|
)
|
-
|
-
|
||||||||
Proceeds from arrangement fees
|
3,000
|
-
|
-
|
|||||||||
Net Cash Provided by / (used in) Investing Activities
|
172,654
|
(379,993
|
)
|
54,317
|
||||||||
Cash Flows from Financing Activities:
|
||||||||||||
Proceeds from senior notes
|
500,000
|
-
|
-
|
|||||||||
Payment of senior notes
|
(500,000
|
)
|
-
|
-
|
||||||||
Dividends paid
|
(75,194
|
)
|
(50,281
|
)
|
-
|
|||||||
Payments for issuance of subsidiaries shares
|
(466
|
)
|
-
|
-
|
||||||||
Payment of financing fee
|
(8,690
|
)
|
-
|
-
|
||||||||
Net proceeds from common stock issuance
|
-
|
192,714
|
-
|
|||||||||
Net Cash (used in)/provided by Financing Activities
|
(84,350
|
)
|
142,433
|
-
|
||||||||
Net increase/(decrease) in cash and cash equivalents
|
2
|
(25
|
)
|
(9
|
)
|
|||||||
Cash and cash equivalents at beginning of year
|
58
|
60
|
35
|
|||||||||
Cash and cash equivalents at end of year
|
$
|
60
|
35
|
$
|
26
|
A. |
OR Management and CDI have entered into a Consultancy Agreement with effect as of 1st January 2013 (the "Consultancy Agreement") pursuant to which CDI was engaged to act as consultant on matters of employment and sale and purchase of the drilling assets of Ocean Rig UDW Inc. of Cayman Islands ("UDW") and for any affiliates, subsidiaries or holding companies thereof, as directed by OR Management and CDI was entitled to receive from OR Management the fees referred therein.
|
B. |
The Parties have mutually agreed to terminate at no cost the Consultancy Agreement with effect as of 31st March 2016.
|
1. |
THAT the Consultancy Agreement shall be terminated at no cost and shall be no longer in force and effect with effect as of 31st March 2016 (the "Effective Date").
|
2. |
THAT from the Effective Date the Parties hereby mutually release and discharge each other and any of its affiliates, subsidiaries or holding companies and its officers, directors and employees from and against any and all monetary claims, costs, damages, liabilities, and/or any other debts whatsoever which either of the Parties hereto now has or may hereafter have, against the other Party hereto, by reason of, or in connection with the Consultancy Agreement and/or the termination of the Consultancy Agreement pursuant to the provisions of this Agreement.
|
For and on behalf of
OCEAN RIG MANAGEMENT INC.
/s/ Adriano Cefai
Name: Dr. Adriano Cefai
Title: Director of OMEGA SERVICES LIMITED. Sole Director of Ocean Rig
Management Inc. Dr. Adriano Cefai
Director Omega Services Limited 5/1 Merchants Street Valletta VLT 1171 |
For and on behalf of
CARDIFF DRILLING INC.
/s/ Renato Cefai
Name: Dr. Renato Cefai Title: Director of OMEGA SERVICES LIMITED. Sole Director of Cardiff Drilling
Inc.
Dr. Renato Cefai
Director Omega Services Limited 5/1 Merchants Street Valletta VLT 1171 |
A. |
OR Management and Vivid have entered into a Consultancy Agreement with effect as of 1st January 2013, as amended from time to time (the "Consultancy Agreement") pursuant to which Vivid was engaged to act as consultant on matters of financing for OR Management and Ocean Rig UDW Inc. of Cayman Islands ("UDW") and for any affiliates, subsidiaries or holding companies thereof, as directed by OR Management and Vivid was entitled to receive from OR Management the fees referred therein.
|
B. |
The Parties have mutually agreed to terminate at no cost the Consultancy Agreement with effect as of 31st March 2016.
|
1. |
THAT the Consultancy Agreement shall be terminated at no cost and shall be no longer in force and effect with effect as of 31st March 2016 (the "Effective Date").
|
2. |
THAT from the Effective Date the Parties hereby mutually release and discharge each other and any of its affiliates, subsidiaries or holding companies and its officers, directors and employees from and against any and all monetary claims, costs, damages, liabilities, and/or any other debts whatsoever which either of the Parties hereto now has or may hereafter have, against the other Party hereto, by reason of, or in connection with the Consultancy Agreement and/or the termination of the Consultancy Agreement pursuant to the provisions of this Agreement.
|
For and on behalf of
OCEAN RIG MANAGEMENT INC.
/s/ Adriano Cefai
Name: Dr. Adriano Cefai
Title: Director of OMEGA SERVICES LIMITED, Sole Director of Ocean Rig
Management Inc. Dr. Adriano Cefai
Director Omega Services Limited 5/1 Merchants Street Valletta VLT 1171 |
For and on behalf of
VIVID FINANCE LIMITED
/s/ Yiannoula Georghiades
Name: Yiannoula Georghiades Title: Director /s/ Eleni Papapetrou
Eleni Papapetrou
Title: Director |
Clause
|
Page
|
|
1
|
Definitions and Interpretation
|
2
|
2
|
Agreement of the Finance Parties
|
3
|
3
|
Conditions Precedent
|
4
|
4
|
Reservation of Rights
|
5
|
5
|
Representations
|
5
|
6
|
Amendment and Restatement of Facility Agreement and other Finance Documents
|
5
|
7
|
Further Assurance
|
6
|
8
|
Costs and Expenses
|
6
|
9
|
Notices
|
6
|
10
|
Counterparts
|
6
|
11
|
Governing Law
|
6
|
12
|
Enforcement
|
6
|
Schedules
|
||
Schedule 1 Conditions Precedent
|
8
|
|
Execution
|
||
Execution Pages
|
12
|
|
Appendices
|
||
Part A Form of marked copy Amended and Restated Facility Agreement
|
||
Part B Form of clean copy Amended and Restated Facility Agreement
|
(1) |
DRILLSHIP ALONISSOS SHAREHOLDERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56858 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
|
(2) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56857 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as drillship owner and guarantor (the "Drillship Owner");
|
(3) |
OCEAN RIG UDW INC., a corporation registered in the Cayman Islands with registered number MC-310396 whose registered office is at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands as exiting guarantor and purchaser (the "Purchaser");
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) of the Amended and Restated Facility Agreement as original commercial lenders (the "Original Commercial Lenders");
|
(5) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) of the Amended and Restated Facility Agreement as original lenders under the Kexim Guaranteed Facility (the "Original Kexim Guaranteed Lenders");
|
(6) |
THE EXPORT—IMPORT BANK OF KOREA of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 150-996, Republic of Korea as lender under the Kexim Direct Facility ("Kexim");
|
(7) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as mandated lead arrangers (the "Mandated Lead Arrangers");
|
(8) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as hedge counterparties (the "Hedge Counterparties");
|
(9) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent for the Kexim Guaranteed Lenders (the "Kexim Guarantee Agent");
|
(10) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as bookrunner (the "Bookrunner") and coordinator (the "Coordinator");
|
(11) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and
|
(12) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent").
|
(A) |
By the Facility Agreement, the Lenders agreed to make available to the Borrower a facilities of up to USD 475,000,000 of which USD 413,368,546.10 is outstanding at the date of this Agreement.
|
(B) |
Following the termination of the Total Drilling Contract the Parties have agreed to make certain amendments to the Facility Agreement and the other Finance Documents.
|
(C) |
This Agreement sets out the terms and conditions on which the Lenders and the other Finance Parties agree, with effect on and from the Effective Date, at the request of the Obligors, to:
|
(i) |
transfer the ownership of the Borrower from the Purchaser to the Trust;
|
(ii) |
transfer the ownership of the Drillship Owner from the Borrower to the Trust;
|
(iii) |
reduce the amount of the mandatory prepayment required under Clause 7.6 (Mandatory prepayment on cancellation of Satisfactory Drilling Contract) of the Facility Agreement following the termination of the Total Drilling Contract;
|
(iv) |
release the guarantee from the Purchaser;
|
(v) |
the consequential amendment of the Facility Agreement and the other Finance Documents in connection with those matters.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Facility Agreement
|
1.4 |
Agreed forms of new, and supplements to, Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where clause 42.2 (exceptions) of the Facility Agreement applies, all the Lenders.
|
1.5 |
Designation as a Finance Document
|
1.6 |
Third party rights
|
2 |
AGREEMENT OF THE FINANCE PARTIES
|
2.1 |
Agreement of the Lenders
|
(a) |
in consideration for the Lenders agreeing to reduce the amount of the mandatory prepayment required under Clause 7.6 (Mandatory prepayment on cancellation of Satisfactory Drilling Contract) of the Facility Agreement following the termination of the Total Drilling Contract from USD 145,894,352.70 to USD 125,000,000, the transfer of the ownership of the Borrower from the Purchaser, and the ownership of the Drillship Owner from the Borrower, to the Trust;
|
(b) |
release the Purchaser from all obligations, actual or contingent, joint or several, now or at any time outstanding, to which it might otherwise have any liability under the terms of the Guarantee and Indemnity set out in clause 17 (Guarantee and indemnity) of the Facility Agreement;
|
(c) |
waive the existing breaches of the terms of the Facility Agreement and the other Finance Documents as notified to the Facility Agent by the Borrower prior to the date of this Agreement;
|
(d) |
the cold-stacking of the Drillship; and
|
(e) |
the consequential amendment of the Facility Agreement and the other Finance Documents in connection with those matters,
|
2.2 |
Agreement of the Finance Parties
|
2.3 |
Effective Date
|
3 |
CONDITIONS PRECEDENT
|
(a) |
no Default continuing on the date of this Agreement (other than such Defaults as notified to the Facility Agent by the Borrower prior to the date of this Agreement) or on the Effective Date or resulting from the occurrence of the Effective Date;
|
(b) |
the Repeating Representations set out in the Facility Agreement, as amended and restated by this Agreement and updated with appropriate modifications to refer to this Agreement, to be made by the Borrower and the Drillship Owner being true on the date of this Agreement and the Effective Date; and
|
(c) |
the Facility Agent having received all of the documents and other evidence listed in Schedule 1 (Conditions Precedent) in form and substance satisfactory to the Facility Agent on or before 31 August 2016 or such later date as the Facility Agent may agree with the Borrower.
|
4 |
CONDITIONS SUBSEQENT
|
5 |
RESERVATION OF RIGHTS
|
6 |
REPRESENTATIONS
|
6.1 |
Facility Agreement representations
|
6.2 |
Finance Document representations
|
7 |
AMENDMENT AND RESTATEMENT OF FACILITY AGREEMENT AND OTHER FINANCE DOCUMENTS
|
7.1 |
Specific amendments to the Facility Agreement
|
7.2 |
Amendments to Finance Documents
|
(a) |
the definition of, and references throughout each of the Finance Documents to, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the Facility Agreement and those Finance Documents as amended and restated by this Agreement; and
|
(b) |
the definition of, and references throughout each of the Finance Documents to, the Mortgage shall be construed as if the same referred to the Mortgage as amended and supplemented by the Mortgage Addendum; and
|
(c) |
by construing references throughout each of the Finance Documents to "this Agreement", "this Deed" and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Agreement.
|
7.3 |
Finance Documents to remain in full force and effect
|
(a) |
in the case of the Facility Agreement as amended and restated pursuant to Clause 7.1 (Specific amendments to the Facility Agreement);
|
(b) |
in the case of the Finance Documents other than the Facility Agreement as amended and restated pursuant to Clause 7.2 (Amendments to Finance Documents) and the Mortgage Addendum; and
|
(c) |
such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.
|
8 |
FURTHER ASSURANCE
|
9 |
COSTS AND EXPENSES
|
10 |
NOTICES
|
11 |
COUNTERPARTS
|
12 |
GOVERNING LAW
|
13 |
ENFORCEMENT
|
13.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute") and each of the Obligors hereby submits to the jurisdiction of such courts for any Dispute.
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause 13.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
13.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints Ince Process Agents Ltd of 2 Leman St, London El 8QN, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
1 |
Obligors
|
1.1 |
Articles of incorporation and Certificate of incorporation (or similar), and evidence that the articles of incorporation of each of the Borrower and the Drillship Owner have been amended to provide that the decision to file for any type of bankruptcy, receivership, insolvency, sequestration, restructuring or reorganisation requires unanimous shareholder approval.
|
1.2 |
By-laws (or similar).
|
1.3 |
Updated Good Standing Certificate.
|
1.4 |
A copy of a resolution of the board of directors and shareholders (if applicable) of each Obligor:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.5 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party (notarised and apostilled if requested by the Facility Agent).
|
1.6 |
A Directors/Secretary's Certificate, certifying and attaching the constitutional documents referred to in paragraph 1.1-1.2 above and the required shareholder and board resolutions authorising such amendments and the resolutions referred to in 1.4 and 1.5 above:
|
(a) |
certifying that each copy document is correct, complete and in full force and effect as at a the date of this Agreement;
|
(b) |
certifying the identity of its directors, officers and shareholder(s); and
|
(c) |
with respect to the Borrower and the Drillship Owner, confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
|
2 |
Finance Documents and security
|
2.1 |
A duly executed original of this Agreement.
|
2.2 |
A duly executed original of the Trust Agreement (and of each document to be delivered under it, including the A certificate and the B certificate).
|
2.3 |
A duly executed original of the Put and Call Option Agreement.
|
2.4 |
In respect of the Drillship Owner:
|
(a) |
a duly executed original of the Mortgage Addendum together with documentary evidence that the Mortgage Addendum has been duly recorded as a valid addendum to the Mortgage in accordance with the laws of the jurisdiction of the Approved Flag;
|
(b) |
the Account Security in respect of the Operating Account; and
|
(c) |
an amendment to the Account Security created by it in respect of its Earnings Account.
|
2.5 |
In respect of the Trust, a duly executed original of the new Shares Security in respect of the Borrower and the Drillship Owner (and of each document to be delivered under it except for the original shares certificate which shall be delivered in accordance with Clause 4 (Conditions Subsequent)).
|
2.6 |
In respect of the Borrower and the Purchaser, duly executed originals of the Pledge of Beneficial Interest in Trust (and of each document to be delivered under it).
|
2.7 |
In respect of the Borrower, duly executed originals of:
|
(a) |
the Assignment of Put and Call Option Agreement (and of each document to be delivered under it); and
|
(b) |
an amendment to the Account Security created by it in respect of its Earnings Account and the Retention Account.
|
3 |
Drillship and operation related documents
|
3.1 |
The Budget.
|
3.2 |
The management agreement for the Drillship between the Drillship Owner and Ocean Rig Management Inc. as manager and any supplemental documentation thereto and the management coordination letter for the Drillship with Ocean Rig Management Inc., TMS Offshore Services Ltd. and the Drillship Owner, each in form and substance satisfactory to the Facility Agent and a Manager's Undertaking, in agreed form, from each Manager.
|
4 |
Other documents and evidence
|
4.1 |
Receipt by the Facility Agent from the Borrower of the USD 126,000,000, of which USD 125,000,000 shall be applied in prepayment of the Facilities pro rata across the Facilities and, within each Facility, in inverse order of maturity and USD 1,000,000 shall be transferred to the Operating Account.
|
4.2 |
Evidence that the Retention Account has been credited with an amount of not less than USD 5,000,000.
|
4.3 |
Evidence that the Trust has been created.
|
4.4 |
Duly executed originals of stock powers from each of the Purchaser and the Borrower transferring all shares of the Borrower and of the Drillship Owner to the Trust.
|
4.5 |
Any other evidence that all shares of the Borrower and of the Drillship Owner have been transferred to the Trust.
|
4.6 |
Evidence that the Operating Account has been opened.
|
4.7 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by this Agreement. the Mortgage Addendum or for the validity and
|
4.8 |
Evidence that the costs and expenses then due from the Borrower pursuant to Clause 9 (Costs and Expenses) have been paid or will be paid by the Effective Date.
|
4.9 |
Evidence that any process agent referred to in Clause 13.2 (Service of process) if not an Obligor, has accepted its appointment.
|
4.10 |
Evidence that all UCC-1 filings considered necessary by the legal advisers to the Facility Agent and the Security Agent in the United States have been filed.
|
4.11 |
A certificate relating to each of the Borrower and the Drillship Owner (in form and substance satisfactory to the Facility Agent), signed by an officer of the Borrower and the Drillship Owner (as the case may be) and delivered to the Facility Agent, regarding certain representations and warranties in connection with this Agreement and the matters contemplated thereto.
|
4.12 |
A Certificate from the Purchaser signed by an Officer of the Purchaser and delivered to the Facility Agent pursuant to which there is a representation on any outstanding financial liabilities of the Borrower and the Drillship Owner.
|
5 |
Legal opinions and memorandums
|
5.1 |
A legal opinion of Wikborg Rein, legal advisers to the Facility Agent and the Security Agent in Norway, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.2 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in England, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.3 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in the Marshall Islands, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.4 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in New York, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.5 |
A legal opinion of Conyers Dill & Pearman, legal advisers to the Facility Agent and the Security Agent in the Cayman Islands, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.6 |
A legal opinion of Morris James, legal advisers to the Facility Agent and the Security Agent in Delaware, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.7 |
A memorandum on certain French law aspects of the Total Drilling Contract by Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in France, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.8 |
A long form non-consolidation opinion of Orrick, legal advisers to the Borrower, the Drillship Owner and the Purchaser in the customary form.
|
5.9 |
A memorandum on the bankruptcy remote nature of the transaction by Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in the United States, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.10 |
Legal opinions of the legal advisers to the Facility Agent and the Security Agent in such other relevant jurisdictions as the Facility Agent may require.
|
BORROWER
|
|||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
/s/ Evgenia Th. Voulika
|
)
|
|
Witness' name:
|
Evgenia Th. Voulika
|
)
|
|
Attorney-at-Law
|
)
|
||
Witness' address:
|
52 Ag. Konstantinou Street – 151 24 Marousi
|
)
|
|
Athens, Greece | ) | ||
PURCHASER
|
|||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
OCEAN RIG UDW INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
/s/ Evgenia Th. Voulika
|
)
|
|
Witness' name:
|
Evgenia Th. Voulika
|
)
|
|
Attorney-at-Law
|
)
|
||
Witness' address:
|
52 Ag. Konstantinou Street – 151 24 Marousi
|
)
|
|
Athens, Greece | ) | ||
GUARANTOR and DRILLSHIP OWNER
|
|||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS OWNERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
/s/ Evgenia Th. Voulika
|
)
|
|
Witness' name:
|
Evgenia Th. Voulika
|
)
|
|
Attorney-at-Law
|
)
|
||
Witness' address:
|
52 Ag. Konstantinou Street – 151 24 Marousi
|
)
|
|
Athens, Greece | ) |
COMMERCIAL LENDERS
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
CREDIT SUISSE AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
KEXIM GUARANTEED LENDERS
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witnesss' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
CREDIT SUISSE AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
KEXIM
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
THE EXPORT-IMPORT BANK OF KOREA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
MANDATED LEAD ARRANGERS
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DND BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
HEDGE COUNTERPARTIES
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DNB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witnesss' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
KEXIM GUARANTEE AGENT
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
FACILITY AGENT
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
SECURITY AGENT
|
||
SIGNED by
|
)
|
/s/ Ida Marie Oedegaard
|
duly authorised
|
)
|
Ida Marie Oedegaard
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Joanna Sissens
|
Witness' name:
|
)
|
Joanna Sissens
|
)
|
Solicitor
|
|
Witness' address:
|
)
|
London EC2A 2HB
|
Clause
|
Page
|
|
Section 1 Interpretation
|
4
|
|
1
|
Definitions and Interpretation
|
4
|
Section 2 The Facilities
|
|
|
2
|
The Facilities
|
|
3
|
Purpose
|
|
4
|
Conditions of Utilisation
|
|
Section 3 Utilisation
|
|
|
5
|
Utilisation
|
|
Section 4 Repayment, Prepayment and Cancellation
|
|
|
6
|
Repayment
|
|
7
|
Prepayment and Cancellation
|
|
Section 5 Costs of Utilisation
|
|
|
8
|
Interest
|
|
9
|
Interest Periods
|
|
10
|
Changes to the Calculation of Interest
|
|
11
|
Fees
|
|
Section 6 Additional Payment Obligations
|
|
|
12
|
Tax Gross Up and Indemnities
|
|
13
|
Increased Costs
|
|
14
|
Other Indemnities
|
|
15
|
Mitigation by the Lenders
|
|
16
|
Costs and Expenses
|
|
Section 7 Guarantee
|
|
|
17
|
Guarantee and Indemnity
|
|
Section 8 Representations, Undertakings and Events of Default
|
|
|
18
|
Representations
|
|
19
|
Information Undertakings
|
|
20
|
Financial Covenants
|
|
21
|
Financial covenants after the Interim Maturity Date
|
67
|
|
General Undertakings
|
|
|
Insurance Undertakings
|
|
|
Drillship Undertakings
|
|
|
Security Cover after the Interim Maturity Date
|
|
|
Accounts and Application of Earnings and other amounts
|
|
|
Events of Default
|
|
Section 9 Changes to Parties
|
|
|
|
Changes to the Lenders
|
|
|
Changes to the Obligors
|
|
Section 10 The Finance Parties
|
|
|
|
The Facility Agent and the Mandated Lead Arrangers
|
|
|
The Security Agent
|
|
|
Kexim Guarantee Agent
|
|
|
Conduct of Business by the Finance Parties
|
|
|
Sharing among the Finance Parties
|
|
Section 11 Administration
|
|
|
|
Payment Mechanics
|
|
|
Set-Off
|
|
|
Notices
|
|
|
Calculations and Certificates
|
|
|
Partial Invalidity
|
|
|
Remedies and Waivers
|
|
|
Settlement or Discharge Conditional
|
|
|
Irrevocable Payment
|
|
|
Amendments and Waivers
|
|
|
Confidentiality
|
|
|
Counterparts
|
|
46
|
Bail-In
|
139
|
Section 12 Governing Law and Enforcement
|
|
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Governing Law
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Enforcement
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Schedule 1 The Parties
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Schedule 2 Conditions Precedent
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Schedule 3 Requests
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Schedule 4 Form of Transfer Certificate
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Schedule 5 Form of Assignment Agreement
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Schedule 6 Form of Compliance Certificate
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Schedule 7 Form of Accession Letter
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Schedule 8 Repayments
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Schedule 9 Form of Prepayment/ Cancellation Notice
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Schedule 10 Timetables
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Schedule 11 Corporate Structure
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Execution Pages
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(1) |
DRILLSHIP ALONISSOS SHAREHOLDERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56858 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
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(2) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated under the I.ws of the Marshall Islands with registered number 56857 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as guarantor (the "Guarantor" or the "Original Guarantor").
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(3) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original commercial lenders (the "Original Commercial Lenders");
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(4) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original lenders under the Kexim Guaranteed Facility (the "Original Kexim Guaranteed Lenders");
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(5) |
THE EXPORT-IMPORT BANK OF KOREA of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 150-996, Republic of Korea as lender under the Kexim Direct Facility ("Kexim");
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(6) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as mandated lead arrangers (the "Mandated Lead Arrangers");
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(7) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as hedge counterparties (the "Hedge Counterparties");
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(8) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent for the Kexim Guaranteed Lenders (the "Kexim Guarantee Agent");
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(9) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as bookrunner (the "Kookrunner") and coordinator (the "Coordinator");
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(10) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and
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(11) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent").
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(A) |
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(B) |
By the Amending and Restating Agreement, the Finance Parties agreed to certain amendments to the facility agreement and the other Finance Documents.
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(C) |
This Agreement sets out the terms and conditions of the facility agreement as amended and restated by the Amending and Restating Agreement.
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1 |
DEFINITIONS AND INTERPRETATION
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1.1 |
Definitions
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(a) |
the Commercial Facility Margin for the Commercial Facility;
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(b) |
the Kexim Direct Facility Margin for the Kexim Direct Facility; and
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(c) |
the Kexim Guaranteed Facility Margin for the Kexim Guaranteed Facility.
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(a) |
the amount of its participation in all Advances made; and
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(b) |
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed Utilisation Date.
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(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014f59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time: and
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(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition and Write-down and Conversion Powers contained in that law or regulation.
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(a) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel Ill: A global regulatory framework for more resilient banks and
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(b) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
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(c) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
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(a) |
the interest calculated on the basis of LIBOR only (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Facility or an Unpaid Sum to the last day of the current Interest Period in respect of the Facility or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period
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(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
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(a) |
cash in hand legally and beneficially owned by it; and
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(b) |
cash deposits legally and beneficially owned by it, and which are deposited with (i) a Lender, (ii) any other deposit taking institution having a rating of at least A- from Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe acceptable to the Facility Agent (acting with the authorisation of the Majority Lenders) or (iii) any other bank or financial institution approved by the Facility Agent (acting with the authorisation of the Majority Lenders) which in each case:
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(i) |
is free from any Security, other than pursuant to the Transaction Security;
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(ii) |
is otherwise at the free and unrestricted disposal of the member of the Restricted Group who owns it; and
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(iii) |
in the case of cash deposits held by a member of the Restricted Group other than an Obligor, is (in the opinion of the Facility Agent, based upon such documents and evidence as the Facility Agent may require the Borrower to provide in order to form the basis of such opinion) capable or, upon the occurrence of an Event of Default under this Agreement, would become capable of being paid without restriction to an Obligor within five Business Days of its request or demand therefore either by way of a dividend or by way of a repayment of principal (or the payment of interest thereon) in respect of Intra-Group Loan from the relevant Obligor to that member of the Restricted Group.
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(a) |
any investment in marketable debt obligations issued or guaranteed by (i) a government or (ii) an instrumentality or agency of a government and in respect of (i) and (ii) having a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
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(b) |
commercial paper (debt obligations) not convertible or exchangeable to any other security:
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(i) |
for which a recognised trading market exists;
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(ii) |
issued by an issuer incorporated in the United States of America, the United Kingdom or Norway;
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(iii) |
which matures within one year after the relevant date of calculation; and
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(iv) |
which has a credit rating of at least A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe;
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(c) |
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (b) above and (iii) can be turned into cash on not more than five days' notice; or
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(d) |
any other debt security approved by the Facility Agent (acting with the authorisation of the Majority Lenders),
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(a) |
in relation to an Original Commercial Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Commercial Lender Commitment transferred to it under this Agreement; and
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(b) |
in relation to any other Commercial Lender, the amount of any Commercial Lender Commitment transferred to it under this Agreement,
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(a) |
any Original Commercial Lender; and
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(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Commercial Facility in accordance with Clause
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(a) |
in relation to a Commercial Lender, its Commercial Lender Commitment;
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(b) |
in relation to Kexim or any other Lender under the Kexim Direct Facility, its Kexim Commitment;
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(c) |
in relation to a Kexim Guaranteed Lender, its Kexim Guaranteed Lender Commitment.
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(a) |
any member of the Restricted Group or any of its advisers; or
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(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Restricted Group or any of its advisers,
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(i) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause
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(ii) |
is identified in writing at the time of delivery as non-confidential by any member of the Restricted Group or any of its advisers; or
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(iii) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance party is aware, unconnected with the Restricted Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
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(a) |
a materiál disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
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(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
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(i) |
from performing its payment obligations under the Finance Documents; or
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(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
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(a) |
the following, save to the extent that any of them is, with the prior written consent of the Majority Lenders, pooled or shared with any other person:
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(i) |
all freight, hire and passage moneys; compensation payable to that Obligor or the Security Agent in the event of requisition of the Drillship for hire;
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(iii) |
remuneration for salvage and towage services;
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(iv) |
demurrage and detention moneys;
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(v) |
damages for breach (or payments for variation or termination) of any Charter;
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(vi) |
all moneys which are at any time payable under any Insurances in respect of loss of hire;
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(vii) |
all monies which are at any time payable to that Obligor in respect of general average contribution; and
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(b) |
if and whenever the Drillship is employed on terms whereby any moneys falling within paragraphs (i) to (vii) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Drillship.
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(a) |
an account in the name of the Borrower, the Drillship Owner and/or any Intra-Group Charterer with the Account Bank designated "Earnings Account"; or
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(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Earnings Account for the purposes of this Agreement, and to which any part of the Earnings of the Drillship may be paid.
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(a) |
any release, emission, spill or discharge into the Drillship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from the Drillship; or
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(b) |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than the Drillship and which involves a collision between the Drillship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Drillship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Drillship and/or any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
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(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from the Drillship and in connection with which the Drillship is actually or potentially liable to be arrested and/or where any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or
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(a) |
sections 1471 to 1474 of the Code or any associated regulations;
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(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
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(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
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(a) |
in relation to a "withholdable payment" described in section 1473(1)(Á)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
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(b) |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
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(c) |
in relation to a "passthru payment" described in section 1471(d)(7) UI the LUUe not falling within paragraphs (a) or (b) above, 1 January 2017,
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(a) |
this Agreement;
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(b) |
any Fee Letter;
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(c) |
any Hedging Agreement;
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(d) |
the Trust Agreement;
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(e) |
the Put and Call Option Agreement;
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(f) |
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(g) |
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(h) |
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(i) |
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(j) |
the Pledge of Beneficial Interest in Trust;
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(k) |
any Assignment of Put and Call Option Agreement;
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(l) |
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(m) |
the Assignment of Total Drilling Contract;
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(n) |
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(o) |
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(p) |
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(q) |
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(r) |
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(a) |
moneys borrowed;
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(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
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(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
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(d) |
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the applicable Accounting Principles, be treated as a finance or capital lease;
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(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
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(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
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(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
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(h) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
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(i) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
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(a) |
all policies and contracts of insurance, including entries of the Drillship in any protection and indemnity or war risks association, effected in respect of the Drillship, its Earnings or otherwise in relation to the Drillship; and
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(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium.
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(a) |
in relation to Kexim, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Kexim Commitment transferred to it under this Agreement; and
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(b) |
in relation to any Lender under the Kexim Direct Facility, the amount of any Kexim Commitment transferred to it under this Agreement,
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(a) |
in relation to an Original Kexim Guaranteed Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (the Lenders) and the amount of any other Kexim Guaranteed Lender Commitment transferred to it under this Agreement; and
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(b) |
in relation to any other Kexim Guaranteed Lender, the amount of any Kexim Guaranteed Lender Commitment transferred to it under this Agreement,
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(a) |
any Original Kexim Guaranteed Lender; and
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(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Kexim Guaranteed Facility in accordance with Clause
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(a) |
Kexim;
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(b) |
the Original Kexim Guaranteed Lenders;
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(c) |
the Original Commercial Lenders; and
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(d) |
any New Lender,
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(a) |
the applicable Screen Rate; or
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(b) |
if no Screen Rate is available for the currency of that Advance, the Loan, that part of the Loan or that Unpaid Sum), the Reference Bank Rate,
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(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66% per cent. of the Total Commitments; or
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(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66% per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66% per cent. of the Loan immediately before such repayment, however always to include a minimum of two Commercial Lenders.
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(a) |
the power (whether by way of ownership of shares, proxy, contract. agency or otherwise) to cast or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of a Manager; or appoint or remove all, or the majority, of the directors or other equivalent officers of either Manager; give directions with respect to the operating and financial policies of either Manager with which the directors or other equivalent officers of either Manager are obliged to comply; and/or
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(b) |
the holding beneficially of mor than 50 per cent. of the issued share capital of a Manager (excluding any part of that issued share capital that carries no ri•ht to participate beyond a specified amount in a distribution of either profits or capital).
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(a) |
as at a date not more than 14 days previously (or, in relation to the valuations delivered pursuant to paragraph 3.4 of Part B of Schedule 2 (Conditions Precedent), 30 days previously);
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(b) |
by an Approved Broker;
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(c) |
with or without physical inspection of the Drillship (as the Facility Agent may require); and
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(d) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any charter contract,
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(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any member of the Restricted Group or the Restricted Group as a whole; or
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(b) |
the ability of any Obligor to perform its obligations under any Finance Document; or
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(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
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(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
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(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
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(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
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(a) |
an account in the name of the Drillship Owner with the Account Bank designated "Operating Account"; or
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(b) |
any other account (with that or another office of the Account Bank or wi h a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Operating Account for the purposes of this Agreement.
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(a) |
Security created by the Finance Documents;
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(b) |
Security disclosed in writing to the Facility Agent prior to the date of this Agreement and acceptable to the Facility Agent;
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(c) |
liens for unpaid master's and current crew's wages in accordance with usual maritime practice;
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(d) |
liens for salvage;
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(e) |
any ship repairer's or outfitter's possessory lien arising by operation of law and not exceeding USD 2,500,000; and
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(f) |
any other liens incurred in the ordinary course of operating such Drillship by operation of law and securing obligations not more than 30 days overdue and not exceeding USD 2,500,000.
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(a) |
its jurisdiction of incorporation;
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(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party is situated;
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(c) |
any jurisdiction where it conducts its business; and
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(d) |
the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party.
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(a) |
each member of the Restricted Group; and
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(b) |
each of its directors and officers, employees, agents and representatives.
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(a) |
any expropriation, confiscation, requisition or acquisition of the Drillship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension) unless it is within 30 days redelivered to the full control of the Drillship Owner; and
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(b) |
any arrest, capture, seizure or detention of the Drillship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the Drillship Owner.
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(a) |
listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person);
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(b) |
located in or incorporated under the laws of any country or territory that is the target of comprehensive, country- or territory-wide Sanctions which attach legal effect to being located in or incorporated under the laws of any country or territory that is the target of comprehensive, country or territory-wide Sanctions; or
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(c) |
directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above.
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(a) |
an account in the name of the Borrower with the Account Bank designated "Retention Account"; or
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(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Retention Account for the purposes of this Agreement.
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(a) |
the lists of Sanctions designations and/or targets maintained by any Sanctions Authority; and/or
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(b) |
any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, from time to time.
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(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
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(b) |
all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Secured Parties;
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(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents;
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(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
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(i) |
rights intended for the sole benefit of the Security Agent; and
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(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
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(a) |
has direct or indirect control; or
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(b) |
owns directly or indirectly more than fifty (50) per cent (votes and/or capital),
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(a) |
strictly until the completion of the scope of work currently undertaken by Acqualis Offshore, Acqualis Offshore; and
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(b) |
thereafter, any other firm appointed by the Facility Agent (acting in the instructions of the Majority Lenders) in consultation with the Borrower.
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(a) |
actual, constructive, compromised, agreed or arranged total loss of the Drillship; or
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(b) |
any Requisition.
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(a) |
in the case of an actual loss of the Drillship, the date on which it occurred or, if that is unknown, the date when the Drillship was last heard of;
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(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Drillship, the earlier of:
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(i) |
the date on which a notice of abandonment is given to the insurers; and
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(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower or the Drillship Owner with the Drillship's insurers in which the insurers agree to treat the Drillship as a total loss; and
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(c) |
in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
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(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
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(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
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(a) |
a person which is resident for tax purposes in the US; or
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(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
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(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) or any law in force from time to time in Switzerland relating to value added tax; and
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(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
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(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
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(b) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
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(ii) |
any similar or analogous powers under that Bail-In Legislation.
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1.2 |
Construction
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(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "Account Bank", the "Facility Agent", a "Mandated Lead Arranger", the "SecurityAgent", any "Hedge Counterparty" "Finance Party" any "Secured Party", any "Obligor" or any other "person" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii) |
"assets" includes present and future properties, revenues and rights of every description;
|
(iii) |
"contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv) |
"document" includes a deed and also a letter, fax or telex;
|
(v) |
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi) |
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;
|
(vii) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(viii) |
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
(ix) |
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
(x) |
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(xi) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(xii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiii) |
a time of day is a reference to London time;
|
(xiv) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
(xv) |
words denoting the singular number shall include the plural and vice versa; and
|
(xvi) |
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(b) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(c) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d) |
A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
|
1.3 |
Construction of insurance terms
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of all Lenders.
|
1.5 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document including but not limited to Clause 16 (Costs and expenses), a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
(c) |
Any Receiver, Delegate or any other person described in paragraph (b) of Clause 14.2 (Other indemnities), paragraph (b) of Clause
|
2 |
THE FACILITIES
|
2.1 |
The Facilities
|
(a) |
a term loan facility which the Commercial Lenders make available in an aggregate principal amount not exceeding the Total Commercial Facility Loan Commitment, being USD 175,000,000 (the "Commercial Facility");
|
(b) |
a term loan facility which Kexim makes available in an aggregate principal amount not exceeding the Total Kexim Direct Facility Loan Commitment, being USD 175,000,000 (the "Kexim Direct Facility"); and
|
(c) |
a term loan facility which the Kexim Guaranteed Lenders make available in an aggregate principal amount not exceeding the Total Kexim Guaranteed Facility Loan Commitment, being USD 125,000,000 (the "Kexim Guaranteed Facility").
|
2.2 |
Finance Parties' rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
(c) |
A Finance Party may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
(d) |
Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the consent of any other Finance Party or joining any other Finance Party to the relevant proceedings.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
no Default is continuing or would result from the proposed Advance;
|
(b) |
the Repeating Representations to be made by each Obligor are true;
|
|
(c) |
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).
|
(b) |
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, all the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification unless directly caused by the gross negligence or wilful misconduct of the Facility Agent.
|
4.4 |
Waiver of conditions precedent
|
5 |
UTILISATION
|
5.1 |
Delivery of the Utilisation Request
|
(a) |
The Borrower may utilise the Facilities by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b) |
The Borrower may not deliver more than one Utilisation Request in respect of the Facilities. All three Facilities must be utilised on the Utilisation Date.
|
5.2 |
Completion of the Utilisation Request
|
(a) |
The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
the proposed Utilisation Date is the Delivery Date of the Drillship and is a Business Day within the applicable Availability Period;
|
(ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
|
(iii) |
the proposed Interest Period complies with Clause 9 (Interest Periods); and
|
(iv) |
it specifies the account of the Builder in accordance with the Building Contract and/or the account of the Drillship Owner for reimbursement to the Drillship Owner of amounts already paid to the Builder.
|
(a) |
Only one Advance under each Facility may be requested in the Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in the Utilisation Request must be dollars.
|
(b) |
The amount of the proposed Advance must be an amount which is not more than the amount available pursuant to Clause 2.1 (The Facilities).
|
(c) |
The Utilisation for the Drillship must be utilised pro rata across the three Facilities.
|
(d) |
The aggregate amount of the proposed Advance must be an amount which is not more than 70 per cent. of the Market Value of the Drillship.
|
|
5.4 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Advance available by the Utilisation Date through its Facility Office.
|
(b) |
Upon receipt of the Utilisation Request, the Facility Agent shall by the Specified Time notify each Lender and the Kexim Guarantee Agent of the details of the requested Advance and the amount of each Lender's participation.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Payment to third parties
|
5.7 |
Disbursement of Advance to third party
|
5.8 |
Prepositioning of funds
|
(a) |
agree to pay interest on the amount of such funds at the rate described in Clause 8.1 (Calculation of interest) applicable to the first Interest Period for the period during which funds have been pre-positioned and so that interest shall be paid together with the first payment of interest in respect of the Advance at the Utilisation Date (being the Delivery Date) or, if the Utilisation Date does not occur, within three Business Days of demand by the Facility Agent; and
|
(b) |
shall, without duplication, indemnify each Finance Party against any losses it may incur in connection with such arrangement.
|
6 |
REPAYMENT
|
6.1 |
Repayment of Advances
|
(a) |
The Borrower shall repay each Advance of each Facility by
|
(b) |
The repayment of each Advance shall commence on the first Repayment Date and on each Repayment Date thereafter, as
|
(c) |
The Repayment Instalments under each Advance and the amount of the Commercial Facility Balloon shall
|
(i) |
the amount drawn under the relevant Facilities
|
(A) |
in the case of the Kexim Direct Facility and the Kexim Guaranteed Facility, spread equally across the
|
(B) |
in the case of the Commercial Facility, spread (proportionally as set out in Schedule 8 (Repayments)) in equal amounts across the
|
(ii) |
the aggregate principal outstanding on the Commercial Facility Termination Date shall not exceed USD
|
(d) |
Unless the Commercial Facility has been renewed as contemplated in Clause
|
(e) |
Schedule 8 (Repayments) sets out the Repayment Instalments and the amount of the Commercial Facility Balloon
|
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(b) |
upon the Facility Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrower shall repay that Lender's participation in the Facility concerned on the last day of the Interest Period for that Facility occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
|
|
|
|
|
7.2 |
|
(a) |
The Borrower may, if it gives the Facility Agent not less than five Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD 1,000,000) of any unutilised Facility. Any cancellation under this Clause
|
(b) |
The unutilised Commitment of each Lender in respect of any of the Facilities shall be automatically cancelled at close of business on the Utilisation Date.
|
7.3 |
|
(a) |
The Borrower may, if it gives the Facility Agent not less than 30 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD 10,000,000).
|
(b) |
Any partial prepayment under this Clause
|
7.4 |
|
(a) |
In the event that the Commercial Facility has not been extended hereunder by the Commercial Lenders or otherwise refinanced in each case on terms acceptable to Kexim and the Kexim Guarantor by the date falling three Months prior to the Commercial Facility Termination Date, Kexim and the Kexim Guarantor (acting through the Kexim Guarantee Agent) shall each have the option, but not the obligation, to terminate the Kexim Direct Facility Loan and the Kexim Guaranteed Facility Loan at the Commercial Facility Termination Date. Unless the Borrower has been notified in writing by Kexim and the Kexim Guarantee Agent no later than 60 days before the Commercial Facility Termination Date that Kexim and the Kexim Guarantor are satisfied with such terms and do not require prepayment, then such prepayment options shall be deemed to have been exercised, and the Borrower shall prepay in full each of the Advances made by either or both Kexim and the Kexim Guaranteed Lenders (as the case may be) (being the Kexim Direct Facility Loan and/or the Kexim Guaranteed Facility Loan, as the case may be) on the Commercial Facility Termination Date without premium, penalty or additional costs of any kind.
|
(b) |
This right of prepayment for the benefit of the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim set out in paragraph (a) above shall thereafter also arise for the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim at all other relevant times where the Commercial Facility having been extended or refinanced for a further period pursuant to sub-clause (a) above has not been further extended or otherwise refinanced on terms acceptable to the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim by the date falling three Months prior to the maturity date of so extended or refinanced Commercial Facility, so long as any Kexim Direct Facility Loan and/or any Kexim Guaranteed Facility loan remains at such time outstanding under this Agreement.
|
|
|
|
7.5 |
|
(a) |
in the case the Drillship is sold or otherwise disposed of, on or before the date upon which the sale is completed by delivery of the Drillship to the buyer or disposal of the Drillship is otherwise completed; or
|
(b) |
in the case of a Total Loss, on the earlier of (i) the date falling 120 days, or such later date as may be agreed by the Facility Agent (acting on the instructions of the Lenders), after the Total Loss Date and (ii) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.6 |
Cash sweep
|
(a) |
The Drillship Owner shall irrevocably authorise the Account Bank to transfer the Excess Cash Flow to the Facility Agent from its Earnings Account on a monthly basis as specified in Clause 26.1 (Payment of Earnings).
|
(b) |
The Borrower shall irrevocably authorise the Account Bank promptly to transfer any Put and Call Receipts to the Facility Agent from its Retention Account.
|
(c) |
The Excess Cash Flow, any Put and Call Receipts and any amounts received by the Facility Agent under Clause 26.3 (Operating Account) shall be applied in prepayment pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments.
|
7.7 |
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be substantially in the form of Schedule 9 (Form of Prepayment / Cancellation Notice) hereto and shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs pursuant to Clause 10.4 (Break Costs) and prepayment fee pursuant to Clause
|
(c) |
The Borrower may not reborrow any part of a Facility which is prepaid.
|
(d) |
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f) |
If the Facility Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to the Borrower or all Lenders, as appropriate.
|
7.8 |
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
(a) |
the Applicable Margin; and
|
(b) |
LIBOR.
|
8.2 |
Payment of interest
|
(a) |
The Borrower shall pay accrued interest on each Advance on the last day of each Interest Period relating to it.
|
(b) |
If an Interest Period is longer than
|
8.3 |
Default interest
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 200 basis points higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 (Default interest) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b) |
If an Unpaid Sum consists of all or part of an Advance which became due on a day which was not the last day of an Interest Period relating to it:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Advance; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 200 basis points higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
(d) |
Additionally the rate of interest payable on any amount to which Clause 8.1 (Calculation of interest) continues to apply shall increase by 200 basis points on the date following any notice served by the Facility Agent following an Event of Default and whilst it is continuing, unremedied or unwaived.
|
8.4 |
Notification of rates of interest
|
8.5 |
Hedging
|
(a) |
The Borrower may request a Hedge Counterparty to enter into Hedging Agreements and shall if such Hedging Agreements are entered into after that date maintain such Hedging Agreements in accordance with this Clause 8.5 (Hedging).
|
(b) |
Each Hedging Agreement shall:
|
(i) |
be with a Hedge Counterparty;
|
(ii) |
be for a term ending on or before the Termination Date;
|
(iii) |
have settlement dates coinciding with the Interest Payment Dates;
|
(iv) |
be in agreed form;
|
(v) |
provide for two-way payments in the event of a termination of a transaction in respect of a Hedging Agreement, whether on a Termination Event (as defined in the relevant Hedging Agreement) or on an Event of Default (as defined in the relevant Hedging Agreement); and
|
(vi) |
provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars.
|
(c) |
The rights of the Borrower under the Hedging Agreements shall be assigned by way of security under an Assignment of Hedging Agreements. Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by the Borrower pursuant to the Assignment of Hedging Agreements of its rights under the Hedging Agreements to which it is party in favour of the Security Agent. Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement.
|
(d) |
The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
|
(e) |
Neither a Hedge Counterparty nor the Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent.
|
(f) |
Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to a conflict with any provision of this Agreement.
|
(g) |
If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment under this Agreement, will exceed 100 per cent. of the Loan at that time, the Borrower must promptly notify the Facility Agent and must, at the request of the Facility Agent, reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent so that it no longer exceeds or will not exceed 100 per cent. of the Loan then or that will be outstanding.
|
(h) |
Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (g) above will be apportioned as between those transactions pro rata.
|
(i) |
Paragraph (g) above shall not apply to any transactions in respect of any Hedging Agreement under which no Borrower has any actual or contingent indebtedness.
|
(j) |
Subject to paragraph (k) below, neither a Hedge Counterparty nor the Borrower may terminate or close out any transactions in respect of any Hedging Agreement (in whole or in part) except:
|
(i) |
in accordance with paragraph (g) above;
|
(ii) |
in the case of termination or closing out by a Hedge Counterparty, on the occurrence of Illegality, a Force Majeure Event, a Tax Event, Failure to Pay or Bankruptcy (as each such expression is defined in the relevant Hedging Agreement);
|
(iii) |
in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent serves notice under paragraph (b) of Clause
|
(iv) |
in the case of any other termination or closing out by a Hedge Counterparty or the Borrower, with the consent of the Facility Agent; or
|
(v) |
If the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged in full;
|
(k) |
If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under sub-paragraph (iii) of paragraph (j) above, such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent.
|
(l) |
A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if the Borrower is in breach of its payment obligations under any transaction in respect of that Hedging Agreement.
|
(m) |
The Security Agent shall not be liable for the performance of any of the Borrower's obligations under a Hedging Agreement.
|
(n) |
If a Hedging Agreement is entered into after the delivery of the Drillship, the Borrower shall amend the Mortgage and other Finance Documents as reasonably required by the Facility Agent for the purpose of securing that Hedging Agreement entered into after the Delivery Date or enter into a new Mortgage and amend the other Finance Documents at the request of the Facility Agent.
|
(o) |
The Borrower agrees that, prior to them (or any of them) entering into any interest rate swap or other hedge instrument with a counterparty (other than a Hedge Counterparty, an "Other Hedge Counterparty") for the purpose of hedging any interest rate risk under this Agreement, the Borrower shall offer for a period of not less than five Business Days to enter into a swap, or other instrument, on the same proposed terms and conditions with the Hedge Counterparties (with each Hedge Counterparty taking such portion as may be agreed between the Borrower and the Hedge Counterparties or, if one or more Hedge Counterparties declines such an offer or the Borrower elects only to enter into the hedge instrument with one of them, the remaining Hedge Counterparty or Hedge Counterparties (as the case may be) shall be entitled to take such portion as it or they (as the case may be) may agree with the Borrower). If all Hedge Counterparties decline such an offer or if the Borrower elects not to proceed on the basis that the offers are not competitive, the Borrower may then (subject, and without prejudice, to the requirements set out elsewhere in the Finance Documents) enter into such swap, or other instrument, on the same terms and conditions offered to those declining Hedge Counterparties (and in the same proportion as those Hedge Counterparties would have taken if they had accepted), with the Other Hedge Counterparty. The rights of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be assigned by way of Security to the Security Agent, and the obligations and liabilities of the Borrower under any hedging agreement with any Other
|
9 |
INTEREST PERIODS
|
9.1 |
Selection of Interest Periods
|
(a) |
The Borrower may select the first Interest Period for an Advance in the Utilisation Request. The Borrower may select each subsequent Interest Period in a Selection Notice.
|
(b) |
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrower not later than the Specified Time.
|
(c) |
If the Borrower fails to select an Interest Period in the Utilisation Request or fails to deliver a Selection Notice to the Facility Agent in accordance with paragraphs (a) and (b) above, the relevant Interest Period will be
|
(d) |
The Borrower may select an Interest Period of one, three or six Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders).
|
(e) |
An Interest Period for an Advance shall not extend beyond the applicable Termination Date, but shall be shortened so that it ends on the applicable Termination Date.
|
(f) |
In respect of a Repayment Instalment, an Interest Period for a part of the Advance equal to such Repayment Instalment shall end on the Repayment Date relating to it if such date is before the end of the Interest Period then current.
|
(g) |
The first Interest Period for an Advance shall start on the Utilisation Date and each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
9.2 |
Non-Business Days
|
10 |
CHANGES TO THE CALCULATION OF INTEREST
|
10.1 |
Absence of quotations
|
10.2 |
Market disruption
|
(a) |
If a Market Disruption Event occurs in relation to any Advance for any Interest Period, then the rate of interest on each Lender's share of the Advance (if any) for the Interest Period shall be the rate per annum which is the sum of:
|
(i) |
the Applicable Margin; and
|
(ii) |
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Advance from whatever source it may reasonably select.
|
(b) |
In this Agreement "Market Disruption Event" means:
|
(i) |
at or about noon on the Quotation Day for the relevant Interest Period, the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest Period; or
|
(ii) |
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in the Advance concerned exceed 50 per cent. of that Advance) that the cost to it or them of funding its participations in the Advance concerned or part of the Advance concerned from whatever source it may reasonably select be in excess of LIBOR.
|
10.3 |
Alternative basis of interest or funding
|
(a) |
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(b) |
Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders who participate in the relevant Advance and the Borrower, be binding on all Parties to the Finance Documents.
|
10.4 |
Break Costs
|
(a) |
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of an Advance or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Advance or Unpaid Sum.
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
11 |
FEES
|
11.1 |
Commitment fee
|
(a) |
The Borrower shall pay to the Facility Agent (for the account of each Lender) a commitment fee (the "Commitment Fee") computed at the rate of 40 per cent. per annum on the relevant Applicable Margin calculated on the undrawn Commitment of each Lender for each Facility, commencing on the date of this Agreement having been signed, and ending on the last day of the relevant Availability Period for each Facility.
|
(b) |
The accrued Commitment Fee is payable in arrears on the last day of each successive period of three Months which ends during the Availability Period, on the Utilisation Date and, if cancelled, on the cancelled amount of the relevant Lender's or Lenders' Commitment at the time the cancellation is effective.
|
11.2 |
Other fees
|
11.3 |
Kexim Guarantee Premium
|
(a) |
The Borrower acknowledges that the Kexim Guaranteed Lenders shall procure the placement of the Kexim Guarantee either through the Kexim Guarantee Agent or directly with the Kexim Guarantor and shall benefit from it throughout the duration of the Security
|
(b) |
The Borrower agrees that its obligation to make the payments set out in paragraph (a) above to the Facility Agent in respect of the Kexim Guarantee Premium (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The Kexim Guarantee Premium (or any part thereof) shall be refundable only in accordance with the terms of the Fee Letter referred to in paragraph (a) above.
|
(c) |
The Borrower acknowledges that the amount of the Kexim Guarantee Premium will be solely determined by the Kexim Guarantor and no Kexim Guaranteed Lender is in any way involved in the determination of the amount of the Kexim Guarantee Premium and agrees that the Borrower shall have no claim or defence against any Kexim Guaranteed Lender in connection with the amount of the Kexim Guarantee Premium.
|
(d) |
Any refund of the Kexim Guarantee Premium received by a Finance Party shall, provided no Event of Default is continuing, be promptly paid or transferred to the Borrower.
|
12 |
TAX GROSS UP AND INDEMNITIES
|
12.1 |
Definitions
|
(a) |
In this Agreement:
|
(b) |
Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
(c) |
This Clause 12 (Tax gross up and indemnities) shall not apply to any Hedging Agreement.
|
12.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
12.3 |
Tax indemnity
|
(a) |
The Borrower shall (within three Business Days of demand by the Facility Agent) pay to a Protect(b) ed Party an amount equal to the loss, liability or cost which that Protected Party
|
(c) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(A) |
is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or
|
(B) |
relates to a FATCA Deduction required to be made by a Party.
|
(d) |
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
(e) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
|
12.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit;
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
|
12.5 |
Stamp taxes
|
12.6 |
VAT
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d) |
Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliances with any other law, regulation or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If the Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i) |
where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where the Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(iv) |
a withholding certificate on Form W-8 or Form W-9 or any other relevant form; or
|
(v) |
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f) |
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated
|
(h) |
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
12.8 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
13 |
INCREASED COSTS
|
13.1 |
Increased costs
|
(a) |
Subject to Clause 13.3 (Exceptions), the Borrower shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates which:
|
(i) |
arises as a result of:
|
(A) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
(B) |
compliance with any law or regulation made,
|
(ii) |
arises as a result of the implementation, interpretation, administration or application of or compliance with Basel Ill, CRD IV or CRR or any law or regulation that implements or applies Basel Ill, CRD IV or CRR
|
(b) |
In this Agreement, "Increased Costs" means:
|
(i) |
a reduction in the rate of return from any Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii) |
an additional or increased cost; or
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
13.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
(d) |
compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost);
|
(e) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(f) |
incurred by a Hedge Counterparty in its capacity as such.
|
14 |
OTHER INDEMNITIES
|
14.1 |
Currency indemnity
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
(i) |
making or filing a claim or proof against that Obligor; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
(c) |
This Clause 14.1 does not apply to any sum due under a Hedging Agreement
|
14.2 |
Other indemnities
|
(a) |
The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Event of Default;
|
(ii) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause
|
(iii) |
funding, or making arrangements to fund, its participation in an Advance requested by the Borrower in the Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or
|
(v) |
any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by a Secured Party as a result of conduct of any Obligor or member of the Restricted Group or any of their partners, directors, officers employees, agents or advisors, that violates any Sanctions.
|
(b) |
The Borrower shall (or shall procure that an Obligor will) within three Business Days of demand indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, the Drillship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
(i) |
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
(ii) |
in connection with any Environmental Claim.
|
(d) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (Other indemnities) and the provisions of the Third Parties Act.
|
14.3 |
Mandatory Cost
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank, the Swiss National Bank or the Swiss Financial Market Supervisory Authority (FINMA) or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation
|
14.4 |
Indemnity to the Servicing Banks and the Kexim Guarantee Agent
|
(a) |
investigating any event which it reasonably believes is a Default; or
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
14.5 |
Indemnity to the Security Agent
|
(a) |
The Borrower shall (or shall procure that an Obligor will) within five Business Days of demand indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any Secured Party:
|
(i) |
in relation to or as a result of:
|
(A) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(B) |
the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(C) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; and
|
(D) |
any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security,
|
(ii) |
which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise than as a result of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b) |
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
15 |
MITIGATION BY THE LENDERS
|
15.1 |
Mitigation
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) or paragraph (a) of Clause 14.3 (Mandatory Cost) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2 |
Limitation of liability
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
(b) |
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16 |
COSTS AND EXPENSES
|
16.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement and the Transaction Security; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
16.2 |
Amendment costs
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to Clause
|
(c) |
an Obligor requests, and the Security Agent agrees to, the release of any part of the Charged Property from the Transaction Security,
|
16.3 |
Enforcement and preservation costs
|
16.4 |
Web Services
|
17 |
GUARANTEE AND INDEMNITY
|
17.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand by the Facility Agent pay that amount as if it were the principal obligor; and
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand by the Facility Agent against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by
|
17.2 |
Continuing guarantee
|
17.3 |
Reinstatement
|
17.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, take up or enforce, any rights against, or security over assets
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
17.5 |
Immediate recourse
|
17.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and
|
(b) |
hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of
|
17.7 |
Deferral of Guarantor's rights
|
(a) |
to be indemnified by an Obligor;
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
|
(d) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
|
(e) |
to exercise any right of set-off against any Obligor; and/or
|
(f) |
to claim or prove as a creditor of any Obligor in competition with any Secured Party.
|
17.8 |
Additional security
|
17.9 |
Applicability of provisions of Guarantee to other Security
|
18 |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(a) |
It is a corporation, duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(b) |
It and each of its Subsidiaries (if any) has the power to own its assets and carry on its business as it is being conducted.
|
18.3 |
Binding obligations
|
18.4 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have the first ranking priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking security.
|
18.5 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
the constitutional documents of any member of the Restricted Group; or
|
(c) |
any agreement or instrument binding upon it or any member of the Restricted Group or any member of the Restricted Group's assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.6 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
in the case of the Drillship Owner, its execution of the
|
(ii) |
its entry into, performance and delivery of, each Finance Document to which it is a party and, in the case of the Drillship Owner, the
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
|
18.7 |
Validity and admissibility in evidence All Authorisations required or desirable:
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the
|
(b) |
to make the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the
|
18.8 |
Governing law and enforcement
|
(a) |
The choice of governing law of each Finance Documents to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.
|
18.9 |
No filing or stamp taxes
|
(a) |
in case of the Drillship Owner, the registration of the Mortgage at the Marshall Island ship registry which will be made at the Delivery Date;
|
(b) |
if applicable, any other registration required by the legal advisers to the Finance Parties,
which will be made and paid promptly after the date of the relevant Finance Documents.
|
18.10 |
Deduction of Tax
|
18.11 |
Taxes paid
|
(a) |
It is not and no other member of the Restricted Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Restricted Group is) overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
18.12 |
No default
|
(a) |
No Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries (if any) or to which its (or any of its Subsidiaries') assets are subject.
|
18.13 |
No misleading information
|
(a) |
Any factual information provided by any member of the Restricted Group for the purposes of this Agreement
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in the information
|
18.14 |
Original Financial Statements
|
(a) |
The Original Financial Statements were prepared in accordance with the applicable Accounting Principles consistently applied.
|
(b) |
The Original Financial Statements fairly represent its financial condition and operations
|
(c) |
There has been no material adverse change in the assets, business or consolidated financial condition of the Restricted Group since 31 December 2013.
|
18.15 |
Pari passu ranking
|
18.16 |
No proceedings pending or threatened
|
18.17 |
Validity and completeness of the Building Contract and
|
(a) |
The Building Contract and the
|
(b) |
The copies of the Building Contract and the
|
(c) |
No amendments or additions to the Building Contract or the
|
18.18 |
No rebates etc.
|
18.19 |
No breach of laws
|
18.20 |
Compliance with Environmental Laws
|
18.21 |
No Environmental Claim
|
18.22 |
No Environmental Incident
|
18.23 |
ISM and ISPS Code compliance
|
18.24 |
Financial Indebtedness
|
18.25 |
Overseas companies
|
|
18.26 |
|
18.27 |
|
18.28 |
|
(a) |
The
|
(b) |
The Borrower
|
(c) |
None of the shares in any of the companies within the Restricted Group are subject to any option to purchase, pre-emption rights or similar rights.
|
18.29 |
|
18.30 |
|
(a) |
in the absolute ownership of the Drillship Owner, free and clear of all encumbrances (other than any Permitted Security), and the Drillship Owner is the sole, legal and beneficial owner of the Drillship;
|
(b) |
registered in the name of the Drillship Owner under the Approved Flag;
|
(c) |
operationally seaworthy in every way and fit for service; and
|
(d) |
classed with the Approved Classification with the Approved Classification Society and is free of all overdue requirements and recommendations.
|
18.31 |
|
18.32 |
|
18.33 |
|
(a) |
a Restricted Party;
|
(b) |
in breach of Sanctions; or
|
(c) |
subject to or involved in any complaint, claim, proceeding, formal notice, investigation or other action by any regulatory or enforcement authority or third party concerning any Sanctions.
|
18.34 |
|
18.35 |
|
(a) |
No corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause
|
(b) |
No creditors' process described in Clause
|
(c) |
None of the circumstances described in Clause
|
(d) |
|
18.36 |
|
18.37 |
|
18.38 |
|
19 |
INFORMATION UNDERTAKINGS
|
19.1 |
General
|
19.2 |
Financial statements
|
(a) |
as soon as the same become available, but in any event within 120 days after the end of each financial year
|
|
(b) |
as soon as the same become available, but in any event within 60 days after each Quarter Date in each financial year
|
|
(c) |
prior to each financial year, detailed
|
19.3 |
Compliance Certificate
|
(a) |
The Borrower shall
|
(b) |
Each Compliance Certificate shall be signed by the chief financial officer or any authorized signatory of the
|
19.4 |
Requirements as to financial statements
|
(a) |
a description of any change necessary for those financial statements to reflect the applicable Accounting Principles, accounting practices and reference periods upon which the Original Financial Statements were prepared; and
|
(b) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) and, if applicable, Clause 21 (Financial covenants after the Interim Maturity Date) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
19.5 |
Budget
|
(a) |
The Borrower shall deliver to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests) on or prior to the Effective Date a budget for the Restricted Group from the period up to and including 31 December 2018, broken down monthly (each such Month being a "Budget Month"), of projected cash receipts and disbursements (the "Budget"), and which shall include a breakdown of the following costs and expenses:
|
(i) |
a fixed amount of operating costs and expenses, which shall include the costs of cold-stacking the Drillship ("OPEX");
|
(ii) |
a fixed amount of maintenance capital expenditures in relation to equipment on the Drillship ("CAPEX");
|
(iii) |
a fixed amount of general and administrative expenses in relation to the Restricted Group and the Drillship ("G&A"),
|
(iv) |
a fixed amount of Taxes in relation to the Drillship, being, as at the date of the Amending and Restating Agreement, 9.2015 per cent. on all revenues received by the Drillship Owner under the Total Drilling Contract (including, without limitation, the Total Termination Payments); and
|
(v) |
a fixed amount of commission, equal to 1% of all revenues received for the Drillship (including without limitation the Total Termination Payments received under the Total Drilling Contract), payable to TMS Offshore Services Ltd. ("Commission"),
|
(b) |
Promptly upon receipt by the Facility Agent, it shall send the Budget to the Lenders and the Technical Advisor for approval and such Budget shall only constitute the Budget if approved by all the Lenders (following consultation with the Technical Advisor).
|
(c) |
The Facility Agent (acting on the instructions of any Lender) shall be entitled to request full information relating to the expenses of the Restricted Group to ensure they are properly and reasonably incurred and shall be entitled to review or to request an audit of all records.
|
(d) |
The Borrower shall use its reasonable endeavours to procure that, in respect of any Budget Month, the aggregate amount of the Permitted Operating Expenses, Tax and Commission and, in each case, the amount of each component thereof (as specified in paragraph (a) above) shall not exceed the budgeted amounts set out in the Budget for that Budget Month.
|
19.6 |
|
(a) |
promptly upon receipt, a copy of the monthly invoice payment confirmation from Total;
|
(b) |
|
(c) |
|
(d) |
|
(i) |
the Drillship, the Earnings or the Insurances;
|
(ii) |
the Charged Property;
|
(iii) |
compliance of the Obligors with the terms of the Finance Documents;
|
(iv) |
the financial condition, business and operations of any member of the Restricted Group,
|
(e) |
|
(f) |
|
(g) |
|
19.7 |
|
(a) |
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b) |
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by any authorized signatory of the Borrower certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.8 |
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii) |
any change in the status of an Obligor after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Bank supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Bank (for itself) in order for that Servicing Bank to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20 |
FINANCIAL COVENANTS
|
20.1 |
General
|
20.2 |
|
20.3 |
Financial testing
|
21 |
FINANCIAL COVENANTS AFTER THE INTERIM MATURITY DATE
|
21.1 |
General
|
21.2 |
|
(a) |
The Borrower shall ensure that Cash and Cash Equivalents (which, for the avoidance of doubt, shall include the USD 5,000,000 held on the Retention Account) of the Borrower (on a consolidated basis) will not at any time fall below
|
|
|
|
(b) |
Notwithstanding
|
(i) |
USD 10,000,000 during the next one year of operation of the Drillship;
|
(ii) |
USD 15,000,000 during the second year of operation of the Drillship; and
|
(iii) |
USD 20,000,000 thereafter.
|
21.3 |
|
(a) |
25 per cent. From the Delivery Date to but excluding the date falling one year after the Delivery Date;
|
21.4 |
|
21.5 |
|
|
|
|
|
21.6 |
|
22 |
|
22.1 |
|
22.2 |
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of, any Authorisation required under any law or regulation of any Relevant Jurisdiction or the state of the Approved Flag at any time of the Drillship to enable it to:
|
(i) |
perform its obligations under the Finance Documents to which it is a party;
|
(ii) |
perform, in the case of the Drillship Owner, its obligations under the Building Contract, the
|
(iii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of the Drillship or any Finance Document to which it is a party, the Building Contract, the
|
(iv) |
in the case of the Drillship Owner, own and operate the Drillship.
|
22.3 |
|
22.4 |
|
22.5 |
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals; and
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law.
|
22.6 |
Environmental claims
|
(a) |
any Environmental Claim against any member of the Restricted Group which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Restricted Group.
|
22.7 |
|
(a) |
Each of the Obligors shall
|
(i) |
such payment is being contested in good faith;
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 19.2 (Financial statements); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
None of the Obligors may and, to the extent (in the opinion of the Facility Agent or the Majority Lenders) it has or reasonably could expect to have a Material Adverse Effect, no other member of the Restricted Group may change its residence for Tax purposes.
|
22.8 |
|
22.9 |
|
22.10 |
|
(a) |
The
|
(b) |
|
22.11 |
|
(a) |
Each Obligor shall procure that each Intra-Group Charterer shall be a company within the Restricted Group.
|
(b) |
Each Obligor shall procure that any Intra-Group Charterer not already party to this Agreement (other than a company within the Restricted Group being a counterparty to a Service Contract only) shall accede to this Agreement as an Additional Guarantor by signing an accession letter substantially in the form of Schedule 7 (Form of Accession Letter) hereto and/or taking such other step as the Facility Agent may reasonably require to provide its Guarantee and any such other Security as contemplated under this Agreement, and Shares Security shall be granted over the shares in that Intra-Group Charterer.
|
22.12 |
|
(a) |
The Drillship Owner shall hold the title to, and own the entire beneficial interest in, the Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause
|
(b) |
Each Obligor shall procure that the Drillship Owner and/or Intra-Group Charterer (as the case may be) shall hold the title to, and own the, entire beneficial interest in, the Earnings payable to each such party and its rights in the Insurances related to the Driliship, free of any Security and other interests and rights of every kind, except for those set out in Clause
|
22.13 |
|
(a) |
All Charters for the Drillship shall be made on market terms and otherwise on arm's length terms.
|
(b) |
No novation or assignment of a Charter shall be permitted, save for
|
(i) |
novations or assignments in favour of the Secured Parties under the Finance Documents; or
|
(ii) |
novations or assignments in the ordinary course of business between the Drillship Owner and/or any other member of the Restricted Group (subject to Clause
|
(iii) |
with the prior written consent of all the Lenders (not to be unreasonably withheld).
|
22.14 |
|
(a) |
The
|
(b) |
The companies within the Restricted Group (other than the Drillship Owner) shall not engage in any business other than the ownership (direct or indirect, as the case may be) of the Drillship Owner or (if relevant) the operation of the Drillship as an Intra-Group Charterer.
|
(c) |
The Drillship Owner shall not engage in any business other than the ownership and operation of the Drillship.
|
22.15 |
|
22.16 |
|
(a) |
None of the companies within the Restricted Group will create or permit to subsist any Security over any of its assets.
|
(b) |
None of the companies within the Restricted Group will:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
The
|
(d) |
Paragraphs (a), (b) and (c) above do not apply to any Permitted Security.
|
22.17 |
|
(a) |
None of the companies within the Restricted Group shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of the Drillship, the Earnings or the Insurances or other asset being the subject of Security pursuant to the Finance Documents (including but not limited to its interest in the Trust) or the whole or a substantial part of its assets.
|
(b) |
Paragraph (a) above does not apply to:
|
(i) |
any sale, lease, transfer or other disposal made on market value and arm's length terms and in compliance with Clause 7 (Prepayment and cancellation) of this Agreement; or
|
(ii) |
any Charter, unless otherwise prohibited under this Agreement.
|
22.18 |
|
|
22.19 |
|
(a) |
Each Obligor shall procure that any current or future intra-group claims (including any Intra-Group Loan) owed by any Obligor to an Obligor or another company within the Restricted Group and all sums owed by any Obligor to the Manager shall be unsecured and fully subordinated, in terms of payment and priority, to the rights of the Finance Parties under the Finance Documents on terms acceptable to the Facility Agent.
|
(b) |
No payments of principal or interest under any Intra-Group Loan shall be permitted until all outstanding amounts under the Finance Documents have been repaid in full.
|
(c) |
Additionally each Obligor shall procure that no transfer, novation or assignment of any Intra-Group Loan or other claim (whether for security or otherwise) shall take place at any time to any
|
(d) |
Each Obligor shall procure that any current or future Intra-Group Loan shall be subject to Security under an Assignment of Intra-Group Loan.
|
22.20 |
|
(a) |
None of the companies within the Restricted Group shall make any investments or acquisitions, except for any capital expenditure or investments related to ordinary upgrade or maintenance work of the Drillship.
|
(b) |
None of the companies within the Restricted Group shall provide any guarantee or indemnity to or for the benefit of any person in respect of any obligation or any other person or enter into any document under which it assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents and except liabilities under guarantees given in the ordinary course of business for operational reasons; or
|
(c) |
None of the companies within the Restricted Group shall make any loan or provide any form of credit or financial assistance to any person.
|
22.21 |
|
(a) |
|
(b) |
|
(c) |
|
(d) |
|
22.22 |
|
|
|
|
22.23 |
|
(a) |
make it unlawful for an Obligor to perform any of its obligations under the Finance Documents;
|
(b) |
cause any obligation of an Obligor under the Finance Documents to cease to be legal, valid, binding or enforceable;
|
(c) |
cause any Finance Document to cease to be in full force and effect;
|
(d) |
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e) |
imperil or jeopardise the Transaction Security.
|
22.24 |
|
(a) |
No Obligor shall (and the
|
(i) |
is a breach of Sanctions; and/or
|
(ii) |
causes (or will cause) a breach of Sanctions by any Relevant Person or Finance Party and/or
|
(iii) |
otherwise benefits any Restricted Party.
|
(b) |
No Obligor shall (and the
|
22.25 |
|
(a) |
No member of the Restricted Group shall enter into arrangements which provide an obligation to charter in (or similar arrangement) any tonnage from companies outside the Restricted Group.
|
(b) |
Any charter-in arrangement permitted pursuant to paragraph (a) above shall be made on market terms and otherwise on arm's length terms.
|
22.26 |
|
(a) |
The Borrower shall procure that no Obligor shall act (or omit to act) in a manner that is inconsistent with or which could result in a breach of any requirement of the Kexim Guarantor under or in connection with the Kexim Guarantee and, in particular:
|
(i) |
each Obligor shall do all that is reasonably necessary and within its control to ensure that all requirements of the Kexim Guarantor under or in connection with the Kexim Guarantee are complied with;
|
(ii) |
each Obligor will cooperate with the Facility Agent and the Kexim Guarantee Agent on its reasonable request to take all steps necessary on the part of the Obligors (or any of them) to ensure that the Kexim Guarantee remains in full force and effect throughout the Security Period; and
|
(iii) |
each Obligor will use reasonable efforts to assist the Kexim Guarantee Agent in making any claim under the Kexim Guarantee.
|
(b) |
The Borrower shall promptly:
|
(i) |
notify the Facility Agent and the Kexim Guarantee Agent promptly after it becomes aware of the occurrence of any Default or Event or Default;
|
(ii) |
provide copies of all financial or other information reasonably required by the Facility Agent and/or the Kexim Guarantee Agent to satisfy any request for information by the Kexim Guarantor pursuant to the Kexim Guarantee. The Borrower agrees that it shall be reasonable for the Facility Agent and/or the Kexim Guarantee Agent to make a request under this Clause
|
22.27 |
|
(a) |
Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right or any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed under this Clause
|
23 |
|
23.1 |
|
(a) |
The undertakings in this Clause
|
(b) |
At any time where there is an Intra-Group Charterer within the Charter arrangements for the Drillship, the Drillship Owner shall be entitled to procure the performance of the undertakings in this Clause
|
23.2 |
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(b) |
hull interest and/or freight interest;
|
(c) |
war risks (including blocking and trapping, acts of terrorism and piracy);
|
(d) |
protection and indemnity risks;
|
(e) |
risk of loss of Earnings; and
|
(f) |
such other insurances as the Lenders may reasonably require.
|
23.3 |
|
(a) |
The Drillship Owner shall effect such insurances:
|
(i) |
in dollars;
|
(ii) |
in the case of fire and usual marine risks and war risks, in an amount equal to at least 80 per cent. of the
|
(iii) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(iv) |
in the case of protection and indemnity risks, in respect of the full tonnage of the Drillship;
|
(v) |
in the case of risk of loss of Earnings insurance, in an amount not less than the amount confirmed by the report from the insurance broker obtained in accordance with Clause
|
(vi) |
in each of the above cases on terms approved by the Facility Agent (acting on the authorisation of the Majority Lenders) and through such brokers, insurers, associations and clubs as the Facility Agent (acting on the authorisation of the Majority Lenders) from time to time may approve as appropriate for an internationally reputable major drilling contractor.
|
(b) |
For the purpose of this Clause
|
(i) |
120 per cent. of the Loan; and
|
(ii) |
the Market Value of the Drillship.
|
23.4 |
|
(a) |
subject always to paragraph (b), name the Drillship Owner and any Intra-Group Charterer as the main co assured unless the interest of every other co assured is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b) |
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(c) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(d) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(e) |
provide that the Security Agent may make proof of loss if the Drillship Owner or any Intra-Group Charterer fails to do so.
|
23.5 |
|
(a) |
at least 14 days before the expiry of any obligatory insurance effected by it, renew that obligatory insurance; and
|
(b) |
procure that the brokers and/or the war risks and protection and indemnity associations (approved in accordance with
|
23.6 |
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters of undertaking in a form required by the Facility Agent and including undertakings by the brokers that:
|
(i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from the Drillship Owner concerned or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances;
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Drillship under such obligatory insurances any premiums due for other Drillships under the fleet or other amounts due to them for other insurances or any other person, they waive any lien on the policies for premium due for other Drillships under the fleet cover or any sums received under them which they might have in respect of such premiums or other amounts due for other Drillships under the fleet cover and they will not cancel such obligatory insurances on this Drillship by reason
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Drillship forthwith upon being so requested by the Facility Agent.
|
23.7 |
|
(a) |
a copy of the certificate of entry for the Drillship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
|
(c) |
a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Drillship if trading in the United States or any other relevant jurisdiction.
|
23.8 |
|
23.9 |
|
23.10 |
|
23.11 |
|
(a) |
The Drillship Owner shall not do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance effected by it invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance effected by it repayable in whole or in part.
|
(b) |
Without limiting paragraph (a) above, the Drillship Owner shall:
|
(i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances effected by it, and (without limiting the obligation contained in paragraph (b)(iii) of Clause
|
(ii) |
not make any changes relating to the Approved Classification or the Approved Classification Society or Manager or operator of the Drillship, without obtaining the underwriters' prior consent;
|
(iii) |
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Drillship is entered to maintain cover for trading to the
|
(iv) |
not employ the Drillship, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances effected by it, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify; and
|
(v) |
notify the Facility Agent in writing prior to the Drillship entering the territorial waters of the US, and arrange for such additional protection and indemnity cover as required by the Facility Agent.
|
(c) |
The Facility Agent may, at any time and for the account of the Borrower, obtain an insurance report from an independent marine insurance broker.
|
23.12 |
|
23.13 |
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance effected by it for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
23.14 |
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause
|
23.15 |
|
(a) |
The Security Agent shall effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils (pollution) insurance, covering, in relation to mortgagee's interest marine insurance, not less than 120 per cent. of the Loan and, in relation to mortgagee's interest additional perils (pollution) insurance, not less than the amount of the Loan, and on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
|
(b) |
The Borrower shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
24 |
|
24.1 |
|
24.2 |
|
(a) |
keep the Drillship registered in its name under the Approved Flag from time to time at its port of registration;
|
(b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
|
(c) |
not change the name of the Drillship,
|
(i) |
the prior consent of the Majority Lenders, and:
|
(ii) |
the Drillship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on the Drillship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage and on such other terms and in such other form as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require; and
|
(iii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require.
|
24.3 |
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of any material overdue recommendations nor adverse notations.
|
24.4 |
|
24.5 |
|
(a) |
Subject to
|
(i) |
is in the same condition as or better condition than the part or item removed;
|
(ii) |
is free from any Security in favour of any person other than the Security Agent; and
|
(iii) |
becomes, on installation on the Drillship, the property of the Drillship Owner and subject to the security constituted by the Mortgage.
|
(b) |
The Drillship Owner may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Drillship.
|
(c) |
Paragraph (a) shall not apply in respect of removal or parts or equipment in connection with cold stacking of the Drillship to the extent such removal is approved by the Technical Adviser.
|
24.6 |
|
24.7 |
|
24.8 |
|
(a) |
The Driliship Owner shall promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Driliship, its Earnings or its Insurances;
|
(ii) |
all taxes, dues and other amounts charged in respect of the Drillship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of the Drillship, its Earnings or its Insurances.
|
(b) |
The Drillship Owner shall forthwith upon receiving notice of the arrest of the Drillship or of its detention in exercise or purported exercise of any lien or claim procure its release by providing bail or otherwise as the circumstances may require.
|
24.9 |
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Drillship, its ownership, employment, operation, management and registration,
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Drillship nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions.
|
24.10 |
|
(a) |
procure the Drillship's and the company responsible for the Drillship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for the Drillship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
24.11 |
|
(a) |
consented to in advance and in writing by the underwriters of the Drillship's war risk insurances and fully covered by those insurances; or
|
(b) |
(to the extent not covered by those insurances) covered by additional insurance taken out by the Drillship Owner or any Intra-Group Charterer (as the case may be) at their expense, which additional insurance shall be deemed to be part of the insurances subject to the Transaction Security,
|
(i) |
the war risk insurers have been duly notified and have agreed to the Drillship entering the specified war zone; and
|
(ii) |
it has taken out all insurances necessary to cover all additional risk.
|
24.12 |
|
(a) |
the Drillship, its employment, position and engagements;
|
(b) |
any Earnings and payments and amounts due to any master and crew;
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Drillship and any payments made by it in respect of the Drillship;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, the Manager's compliance and the compliance of the Drillship with the ISM Code and the ISPS Code,
|
24.13 |
|
(a) |
any casualty to the Drillship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which the Drillship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of the Drillship for hire;
|
(d) |
any requirement or recommendation made in relation to the Drillship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e) |
any arrest or detention of the Drillship, any exercise or purported exercise of any lien on the Drillship or its Earnings or any requisition of the Drillship for hire;
|
(f) |
any intended dry docking of the Drillship;
|
(g) |
any Environmental Claim made against the Drillship Owner, the Borrower or in connection with the Drillship, or any Environmental Incident;
|
(h) |
any claim made by it under the Building Contract;
|
(i) |
any default (by any party) under a Charter;
|
(j) |
any claim for breach of the ISM Code or the ISPS Code being made against the Drillship Owner, the Manager or otherwise in connection with the Drillship; or
|
(k) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
24.14 |
|
(a) |
let the Drillship on demise charter for any period other than a Bareboat Charter;
|
(b) |
enter into any time or consecutive voyage charter in respect of the Drillship other than a Satisfactory Drilling Contract;
|
(c) |
appoint a manager of the Drillship other than the Manager;
|
(d) |
de activate or lay up on a "cold stack" basis the Drillship
|
(e) |
put the Drillship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed USD 15,000,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on the Drillship or its Earnings for the cost of such work or for any other reason.
|
24.15 |
|
(a) |
|
(b) |
No Obligor shall, without the prior written consent of the Majority Lenders, terminate or make any material amendments to the Building Contract or, if relevant, any Satisfactory Drilling Contract.
|
24.16 |
|
24.17 |
|
24.18 |
Marketing of the Drillship
|
(a) |
The Obligors shall continue to market the Drillship for appropriate employment and use commercially reasonable efforts to secure a Satisfactory Drilling Contract to ensure compliance with the requirements under Appendix 5 Article 11 of the Total Drilling Contract.
|
(b) |
The Borrower shall, on a monthly basis, provide the Facility Agent with documentation evidencing its marketing efforts required by paragraph (a) above as reasonably required by the Lenders.
|
24.19 |
Manager Change of Control
|
24.20 |
|
25 |
|
25.1 |
General
|
25.2 |
|
(a) |
The Market Value of the Drillship shall be determined at the Delivery Date of the Drillship and semi-annually thereafter, and at such other times as the Facility Agent may request.
|
(b) |
The valuations for the purpose of determining the Market Value of the Drillship shall be obtained at the cost of the Borrower.
|
(c) |
The Borrower shall promptly provide the Facility Agent and the Approved Brokers acting under this Clause
|
25.3 |
|
(a) |
the Market Value of the Drillship; plus
|
(b) |
the net resalable value of additional non-cash Security previously provided under this Clause
|
|
|
25.4 |
|
(a) |
provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Facility Agent may approve or require; or
|
(b) |
prepay such part of the Loan required in order to eliminate the shortfall.
|
25.5 |
|
25.6 |
|
26 |
ACCOUNTS AND
|
26.1 |
|
(a) |
|
|
|
(b) |
|
(i) |
first, in payment of fees, costs and expenses of the Account Bank, the Facility Agent and the Security Agent;
|
(ii) |
second, in payment to the Operating Account of:
|
(A) |
an amount equal to USD 10,000 per day for the next Month (the "Monthly OPEX Transfer"), to be applied by the Obligors as follows:
|
(1) |
firstly, for the payment of the Permitted Operating Expenses which are due and payable in the relevant Budget Month in accordance
|
(2) |
secondly, the balance between the Monthly OPEX Transfer and the Permitted Operating Expenses for the relevant Budget Month paid in accordance with (1) above (constituting, as at the Effective Date, USD 3,289 per day) to serve as an operating buffer sitting on the Operating Account; and
|
(B) |
an amount equal to the Tax and Commission as set out in the Budget for the relevant Budget Month to be applied by the Obligors in payment of Tax and Commission which are due and payable in accordance with the Budget approved by all the Lenders (following consultation with the Technical Advisor) pursuant to Clause 19.5 (Budget);
|
(iii) |
third, in payment to the Facility Agent for its distribution to the Lenders on each Repayment Date and on each due date for the payment of interest under this Agreement in accordance with Clause 35.2 (Distributions by the Facility Agent) of:
|
(A) |
|
(B) |
|
(iv) |
fourth, any remaining amounts standing to the credit of the relevant Earnings Account after application pursuant to the foregoing paragraphs shall:
|
(A) |
until the credit balance on the Retention Account (including the minimum balance of USD 5,000,000 required in accordance with Clause 20.2 (Minimum credit balance on Retention Account) is USD 20,000,000, be transferred to the Retention Account; and /or
|
(B) |
at any time when the credit balance on the Retention Account is USD 20,000,000 in accordance with paragraph (A) above, be deemed as excess cash flow ("Excess Cash Flow") and transferred to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
In the event that:
|
(i) |
the instalment of the Total Termination Payment due on 30 August 2016 is not received into the relevant Earnings Account by the first Repayment Date after the Effective Date; and
|
(ii) |
as a result, there are insufficient funds standing to the credit of the relevant Earnings Account for settling the sums due under sub-paragraph (iii) of paragraph (b) above,
|
(A) |
failure to receive such instalment from Total within the grace period set out in paragraph (b) of Clause 27.3 (Non-payment or other events under Total Drilling Contract) shall constitute an Event of Default; and
|
(B) |
such loan shall be fully subordinated to the Loan and shall not be repayable to the Purchaser unless and until the instalment from Total has been paid by Total and credited to the relevant Earnings Account.
|
26.2 |
Receipt of amounts under the Put and Call Option Agreement
|
26.3 |
Operating Account
|
(a) |
If at any time the credit balance of the amount on the Operating Account is insufficient to cover the Permitted Operating Expenses the Obligors may, by notice to the Facility Agent, request the prior consent of the Majority Lenders (following consultation with the Technical Advisor) to increase the Monthly OPEX Transfer for the next Month or such other period as specified by the Obligors.
|
(b) |
The Obligors shall ensure that:
|
(i) |
the Account Bank shall be authorised, on such dates as the Facility Agent may from time to time specify to the Account Bank, to send transcripts and evidence of the credit balance on the Operating Account to the Facility Agent; and
|
(ii) |
on a quarterly basis, starting on 6 December 2016 and on a quarterly basis thereafter (each such date being a "Test Date"), any credit on the Operating Account (including any part of the operating buffer) in excess of USD 1,000,000 shall, on the date falling one Month after the Test Date, be transferred by the Account Bank to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
The Security Agent may block the Operating Account upon the occurrence of a Default.
|
26.4 |
Retention account
|
|
|
|
|
(a) |
If the credit balance on the Earnings Account is insufficient in any calendar month for the
|
(b) |
Subject to paragraph (a) above, the Retention Account shall be blocked at all times.
|
|
|
|
|
26.5 |
|
26.6 |
|
26.7 |
|
(a) |
comply with any requirement of the Facility Agent as to the location or relocation of any Earnings Account
|
(b) |
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts
|
27 |
|
27.1 |
|
27.2 |
|
(a) |
its failure to pay is caused by an administrative or technical error in the banking system, appropriate evidence of which is provided to the Facility Agent; and
|
(b) |
payment is made within five Business Days of its due date.
|
27.3 |
Non-payment or other events under Total Drilling Contract
|
(a) |
Any party to the Total Drilling Contract rescinds or purports to rescind or repudiates or purports to repudiate the Total Drilling Contract or evidences an intention to rescind or repudiate the Total Drilling Contract.
|
(b) |
Total does not pay on the due date any amount of the Total Termination Payments payable under the Total Drilling Contract unless payment is made within 60 days of its due date.
|
(c) |
The Total Drilling Contract is amended or the Drillship Owner waives any of its rights under the Total Drilling Contract without the prior written consent of all the Lenders.
|
(d) |
Any disputes are commenced or threatened in relation to amounts due under the Total Drilling Contract.
|
(e) |
Any:
|
(i) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.11 (Insolvency proceedings) or creditors' process described in Clause 27.12 (Creditors' process); or
|
(ii) |
circumstance described in Clause 27.10 (Insolvency),
|
27.4 |
Non-compliance under Put and Call Option Agreement
|
27.5 |
|
27.6 |
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 calendar days of the Facility Agent giving notice to the Borrower or (if earlier) the Borrower becoming aware of the failure to comply.
|
27.7 |
|
27.8 |
|
27.9 |
|
(a) |
Any Financial Indebtedness of any member of the Restricted Group is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any member of the Restricted Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any member of the Restricted Group is cancelled or suspended by a creditor of any member of the Restricted Group as a result of an event of default (however described).
|
(d) |
Any creditor of any member of the Restricted Group becomes entitled to declare any Financial Indebtedness of any member of the Restricted Group due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause
|
27.10 |
|
(a) |
An Obligor or any member of the Restricted Group is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of an Obligor or any member of the Restricted Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
27.11 |
|
(a) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Restricted Group other than a solvent liquidation or reorganisation of any member of the Restricted Group which is not an Obligor;
|
(b) |
a composition, compromise, assignment or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Restricted Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Restricted Group or any of its assets; or
|
(d) |
enforcement of any Security over any assets of any member of the Restricted Group,
|
27.12 |
|
27.13 |
|
27.14 |
|
(a) |
It is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of any Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c) |
Any Finance Document ceases to be in full force and effect or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
27.15 |
|
27.16 |
|
27.17 |
|
27.18 |
|
27.19 |
|
27.20 |
|
27.21 |
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable; and/or
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders,
|
27.22 |
|
27.23 |
Instruction under the Put and Call Option Agreement
|
28 |
|
28.1 |
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
28.2 |
|
(a) |
The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i) |
to another Lender or an Affiliate of a Lender; or
|
(ii) |
made at a time when a Default is continuing.
|
(b) |
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 10 Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
(c) |
The consent of the Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to any amount payable under Clause 14.3 (Mandatory Cost).
|
(d) |
An assignment will only be effective on:
|
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and
|
(ii) |
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(e) |
A transfer will only be effective if the procedure set out in Clause
|
(f) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13 (Increased Costs),
|
(g) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
28.3 |
|
28.4 |
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Obligor;
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction Security; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
28.5 |
|
(a) |
Subject to the conditions set out in
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations");
|
(ii) |
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(iv) |
the New Lender shall become a Party as a "Lender".
|
28.6 |
|
(a) |
Subject to the conditions set out in Clause
|
(b) |
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c) |
Subject to Clause
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause
|
28.7 |
|
28.8 |
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
28.9 |
|
(a) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(b) |
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(ii) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause
|
28.10 |
|
(a) |
If the Kexim Guarantor makes a payment under the Kexim Guarantee, then, to the extent that it is required to do so by the Kexim Guarantor under the Kexim Guarantee, a Kexim Guaranteed Lender receiving a payment pursuant to the Kexim Guarantee shall, at the cost of the Borrower and without any requirement for the consent of the Borrower, transfer to the Kexim Guarantor (in accordance with, and subject to, Clause
|
(b) |
A transfer pursuant to paragraph (a) above shall not limit the rights of the relevant Kexim Guaranteed Lender to recover any remaining part of its participation in a Loan or any other moneys owing to it under this Agreement or any other Finance Documents.
|
(c) |
If the Kexim Guarantor makes any payment to a Kexim Guaranteed Lender under the Kexim Guarantee:
|
(i) |
the obligations and liabilities of the Obligors (and of any of them) under this Agreement and each of the other Finance Documents shall not be reduced, discharged nor affected in any way;
|
(ii) |
the Kexim Guarantor shall be subrogated to the rights of that Kexim Guaranteed Lender against the Obligors under this Agreement and each of the other Finance Documents;
|
(iii) |
the Kexim Guarantor shall be entitled to the extent of such payment to exercise the rights of that Kexim Guaranteed Lender against the Obligors (and against any of them) under this Agreement and each of the other Finance Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued on it are fully reimbursed to the Kexim Guarantor; and
|
(iv) |
with respect to the obligations and liabilities of the Obligors owed to that Kexim Guaranteed Lender under the Finance Documents (or any of them), such obligations and liabilities shall additionally be owed to the Kexim Guarantor by way of subrogation of the rights of that Kexim Guaranteed Lender.
|
(d) |
The Obligors shall indemnify the Kexim Guarantor in respect of any costs or expenses (including legal fees) suffered or incurred by it in connection with any transfer referred to in paragraph (a) above.
|
29 |
|
|
|
30 |
|
30.1 |
|
(a) |
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each other Finance Party authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
30.2 |
|
(a) |
The Facility Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause
|
(i) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
30.3 |
|
(a) |
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(c) |
Without prejudice to Clause
|
(d) |
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Mandated Lead Arrangers or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g) |
The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
30.4 |
|
30.5 |
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent or the Mandated Lead Arrangers as a trustee or fiduciary of any other person.
|
(b) |
Neither the Facility Agent nor the Mandated Lead Arrangers shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
30.6 |
|
30.7 |
|
30.8 |
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arrangers are obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
The Facility Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Facility Agent by any Lender or the identity of any such Lender for the purpose of sub-paragraph (ii) of paragraph (a) of Clause 10.2 (Market disruption).
|
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the
|
30.9 |
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
30.10 |
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
30.11 |
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent or the Mandated Lead Arrangers to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.
|
30.12 |
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
30.13 |
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d) |
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent), agree with the proposed successor Facility Agent amendments to this Clause
|
(e) |
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
(f) |
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g) |
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to the Servicing Banks) and this Clause
|
(h) |
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (e) above shall be for the account of the Borrower.
|
(i) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
(j) |
The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:
|
(i) |
the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii) |
the information supplied by the Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii) |
the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
30.14 |
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
30.15 |
|
(a) |
Subject to Clause
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost in accordance with Clause 14.3 (Mandatory Cost).
|
(c) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
|
(d) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause
|
30.16 |
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
30.17 |
|
30.18 |
|
(a) |
Any amount payable to the Facility Agent under Clause 14.4 (Indemnity to the Servicing Banks), Clause 16 (Costs and Expenses) and Clause
|
30.19 |
|
30.20 |
|
30.21 |
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
31 |
|
31.1 |
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
31.2 |
|
(a) |
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b) |
The Parallel Debt of an Obligor:
|
(i) |
shall become due and payable at the same time as its Corresponding Debt;
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c) |
For purposes of this Clause
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased, and the Corresponding Debt of an Obligor shall be:
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause
|
(f) |
This Clause
|
31.3 |
|
31.4 |
|
(a) |
The Security Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Facility Agent acting on the instructions of:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Facility Agent acting on the instructions of the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Facility Agent acting on the instructions of the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.
|
(iv) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A) |
Clause
|
(B) |
Clause
|
(e) |
If giving effect to instructions given by the Facility Agent acting on the instructions of the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i) |
it has not received any instructions as to the exercise of that discretion; or
|
(ii) |
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
(g) |
The Security Agent may refrain from acting in accordance with any instructions of the Facility Agent acting on the instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause
|
(i) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
31.5 |
|
(a) |
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e) |
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
31.6 |
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Obligor.
|
(b) |
The Security Agent shall not be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account.
|
31.7 |
|
31.8 |
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Facility Agent acting on the instructions of the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Security Agent may actin relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
31.9 |
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
31.10 |
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
31.11 |
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security Agent, any Receiver or Delegate arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages.
|
31.12 |
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
31.13 |
|
(a) |
The Security Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Security Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent.
|
(d) |
The retiring Security Agent shall make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Borrower shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(e) |
The Security Agent's resignation notice shall only take effect upon:
|
(i) |
the appointment of a successor; and
|
(ii) |
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
(f) |
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause
|
(g) |
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrower.
|
(h) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
31.14 |
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
31.15 |
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
31.16 |
|
31.17 |
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Transaction Security.
|
31.18 |
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Charged Property;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Facility Agent acting on the instructions of the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
31.19 |
|
31.20 |
|
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b) |
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.
|
(c) |
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
31.21 |
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
31.22 |
|
31.23 |
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Transaction Security have been fully and finally discharged; and
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Transaction Security; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause
|
31.24 |
|
31.25 |
|
31.26 |
|
(a) |
Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are attributable to, Security Property (for the purposes of this Clause 31, the "Recoveries") shall be transferred to the Facility Agent for application in accordance with Clause
|
(b) |
Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
|
(i) |
under Clause 14.5 (Indemnity to the Security Agent) or any other indemnity in favour of the Security Agent under the Finance Documents to be indemnified out of the Charged Property; and
|
(ii) |
under any Finance Document to credit any moneys received or recovered by it to any suspense account.
|
(c) |
Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Agent.
|
(d) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause
|
31.27 |
|
(a) |
Before transferring any moneys to the Facility Agent under Clause
|
(i) |
deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable;
|
(ii) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and
|
(iii) |
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
(b) |
For the purposes of sub-paragraph (i) of paragraph (a) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be treated as due and payable, even if no demand has yet been served.
|
31.28 |
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
31.29 |
|
31.30 |
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
31.31 |
|
31.32 |
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
32 |
|
32.1 |
|
(a) |
Each Kexim Guaranteed Lender appoints the Kexim Guarantee Agent to act as its agent under and in connection with the Kexim Guarantee and the Finance Documents.
|
(b) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Kexim Guarantee Agent under, or in connection with, the Kexim Guarantee and the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(c) |
The Kexim Guarantee Agent shall promptly forward to each Kexim Guaranteed Lender the original or a copy of any document which is delivered to the Kexim Guarantee Agent for that Kexim Guaranteed Lender by any other Party or by the Kexim Guarantor.
|
(d) |
Except where the Kexim Guarantee or a Finance Document specifically provides otherwise, the Kexim Guarantee Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to consult with the Kexim Guarantor (where necessary) in relation to waivers, consents or approvals under or pursuant to the Finance Documents, including but not limited to any amendment, modification or waiver which:
|
(i) |
varies the dates for, or increases the amount of, or changes the currency or the priority of, any payment of any amount under the Finance Documents;
|
(ii) |
amends, extends or waives any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) of Clause 4.2 (Further conditions precedent) of the Facilities Agreement; or
|
(iii) |
imposes a new obligation on the Kexim Guarantor, or increases an existing obligation of the Kexim Guarantor under the Kexim Guarantee or any other Finance Document,
|
(f) |
The Kexim Guarantee Agent's duties under the Kexim Guarantee and the Finance Documents are solely mechanical and administrative in nature and the Kexim Guarantee Agent shall have no duties or obligations as agent other than those expressly conferred on it by the Finance Documents.
|
(g) |
Nothing in this Agreement or any Finance Document shall permit or oblige any Kexim Guaranteed Lender or the Kexim Guarantee Agent to act (or omit to act) in a manner that is inconsistent with any requirement under or in connection with the Kexim Guarantee.
|
(h) |
In case of any conflict between the Finance Documents and the Kexim Guarantee, the Kexim Guarantee shall, as between the Kexim Guaranteed Lenders and the Kexim Guarantor, prevail, and to the extent of such conflict or inconsistency, none of the Kexim Guaranteed Lenders or the Kexim Guarantee Agent shall assert to the Kexim Guarantor, the terms of the relevant Finance Documents.
|
32.2 |
|
32.3 |
|
(a) |
no information provided by it in writing to the Kexim Guarantee Agent or to the Kexim Guarantor prior to the date of this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission;
|
(b) |
it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the Kexim Guarantee Agent being in breach of any of its obligations in its capacity as Kexim Guarantee Agent under the Kexim Guarantee or any of the Finance Documents, or result in the Kexim Guaranteed Lenders being in breach of any of their respective obligations as insured parties under the Kexim Guarantee, or which would otherwise prejudice the Kexim Guarantee Agent's ability to make a claim on behalf of the Kexim Guaranteed Lenders under the Kexim Guarantee;
|
(c) |
it has reviewed the Kexim Guarantee and is aware of its provisions; and
|
(d) |
the representations and warranties made by the Kexim Guarantee Agent on its behalf under the Kexim Guarantee are true and correct with respect to it in all respects.
|
32.4 |
|
(a) |
All communication between the Kexim Guaranteed Lenders and the Kexim Guarantor shall be carried out through the Kexim Guarantee Agent.
|
(b) |
Each Kexim Guaranteed Lender acknowledges and agrees that it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with the Kexim Guarantee except through the Kexim Guarantee Agent and that all of the rights of the Kexim Guaranteed Lenders under the Kexim Guarantee shall only be exercised by the Kexim Guarantee Agent.
|
32.5 |
|
33 |
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
34 |
|
34.1 |
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause
|
34.2 |
|
34.3 |
|
34.4 |
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and
|
(b) |
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
34.5 |
|
(a) |
This Clause
|
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
35 |
|
35.1 |
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
35.2 |
|
35.3 |
|
35.4 |
|
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b) |
Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c) |
If the Facility Agent is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
|
(ii) |
the Borrower shall on demand refund it to the Facility Agent; and
|
(iii) |
the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
35.5 |
|
(a) |
Subject to paragraph (b) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the following order:
|
(i) |
first, in or towards payment of any amounts then due and payable under any of the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document (except for the Hedging Agreements) but which the Facility Agent, by notice to the Borrower and the other Finance Parties, states in its opinion will or may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them;
|
(iii) |
thirdly, in or towards payment of any sum due but unpaid under the Hedging Agreements; and
|
(iv) |
lastly, any surplus shall be paid to the Borrower or to any other person who appears to be entitled to it.
|
(b) |
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i) |
first, in or towards payment pro rata of any due but unpaid Kexim Guarantee Premium and any unpaid fees, costs and expenses of the Facility Agent and the Security Agent under the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in or towards satisfaction pro rata of all amounts to any Finance Party under Clause 14.2(b) which amounts have been already paid by that Finance Party to the Facility Agent, Security Agent, any Receiver or Delegate (as the case may be) pursuant to Clause
|
(iii) |
thirdly, in or towards payment pro rata of any accrued interest or commission due to any Finance Party but unpaid under this Agreement;
|
(iv) |
fourthly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(v) |
fifthly , in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents (except for the Hedging Agreements); and
|
(vi) |
lastly, in or towards payment pro rata of any sum due but unpaid under the Hedging Agreements.
|
(c) |
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in sub-paragraphs (i) to (vi) of paragraph (b) above.
|
(d) |
Paragraphs (a), (b) and (c) above will override any appropriation made by an Obligor.
|
35.6 |
|
35.7 |
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
35.8 |
|
(a) |
Subject to paragraphs (b) and (c) below, dollar is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
35.9 |
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrower); and
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
35.10 |
|
(a) |
For the purpose of, or pending any payment to be made by any Servicing Bank under any Finance Document, such Servicing Bank may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
35.11 |
|
(a) |
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b) |
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c) |
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d) |
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties and any Obligors as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause
|
(e) |
the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
35.12 |
|
37 |
|
37.1 |
|
37.2 |
|
(a) |
in the case of the Borrower, that specified in Part A of Schedule 1 (the Borrower);
|
(b) |
in the case of each Lender or any other Obligor, that specified in Part B of Schedule 1 (the Guarantors) or Part C of Schedule 1 (the Lenders), respectively, or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c) |
in the case of the Facility Agent, that specified in Part D of Schedule 1 (The Servicing Banks); and
|
(d) |
in the case of the Security Agent, that specified in Part D of Schedule 1 (The Servicing Banks),
|
37.3 |
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i) |
if by way of fax, when received in legible form; or
|
(ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post with postage prepaid in an envelope addressed to it at that address,
|
(b) |
Any communication or document to be made or delivered to a Servicing Bank will be effective only when actually received by that Servicing Bank and then only if it is expressly marked for the attention of the department or officer of that Servicing Bank specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Bank shall specify for this purpose).
|
(c) |
All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
37.4 |
|
(a) |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause
|
37.5 |
|
(a) |
It is recognised that one of the main methods of communication between the Facility Agent and the other Finance Parties will be by posting information and documentation onto an electronic website designated by the Facility Agent.
|
(b) |
Subject to sub-paragraph (a) above, any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means, to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(c) |
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
(d) |
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
(e) |
Each Party confirms that it is aware of (i) the fact that information by way of electronic exchange is transmitted unencrypted over a publicly accessible network, and (ii) the risks connected therewith (including but not limited to the risk that a "bank relation" (as such term is used in the context of Swiss banking secrecy legislation) could be identified).
|
37.6 |
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
38 |
|
38.1 |
|
38.2 |
|
38.3 |
|
38.4 |
|
39 |
|
40 |
|
41 |
|
42 |
|
43.1 |
|
(a) |
Subject to Clause
|
(b) |
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause
|
43.2 |
|
(a) |
An amendment or waiver that has the effect of changing or which relates to:
|
(i) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
(ii) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(iii) |
a reduction in the Applicable Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(iv) |
an increase in or extension of any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
(v) |
a change to any Obligor;
|
(vi) |
any provision which expressly requires the consent of all the Lenders;
|
(vii) |
this Clause
|
(viii) |
any change to the preamble (Background), Clause 2 (The Facilities ), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8 (Interest), Clause 25 (
|
(ix) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document, save where the provisions of Clauses
|
(x) |
the nature or scope of the guarantee and indemnity granted under Clause 17 (Guarantee and Indemnity);
|
(b) |
An amendment or waiver which relates to the rights or obligations of a Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or a Mandated Lead Arranger (each in their capacity as such) may not be effected without the consent of that Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or, as the case may be, the Mandated Lead Arranger.
|
44 |
|
44.1 |
|
44.2 |
|
(a) |
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b) |
to an(a) y person:
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii) |
to whom or for whose benefit that Finance Party chargers, assigns or otherwise creates Security (or may do so) pursuant to Clause
|
(viii) |
who is a Party; or
|
(ix) |
with the consent of a Guarantor;
|
(A) |
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is a professional adviser and is subject
|
(B) |
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(b) |
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information by entering into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Finance Party;
|
(c) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors.
|
(d) |
Kexim may without the prior consent of any Obligor publish key information concerning the Kexim Guarantee, this Agreement and the transactions contemplated thereby, including but not limited to key information regarding the currency, amount and purpose of the Total Commitments, the Loan and the amount guaranteed by Kexim, the name of the Parties and their country of residence, the name of the Builder, the type of drillship, the date of this Agreement and the issuance of the Kexim Guarantee.
|
(e) |
Without prejudice to the above, the Borrower will procure that each Obligor (and its successors) hereby releases each Finance Party and its Affiliates, and each Finance Party hereby releases the other Finance Parties and their Affiliates from any confidentiality obligations and restrictions based on applicable Swiss bank secrecy rules with regard to any data and information relating to this Agreement, the other Finance Documents and the exercise of the respective rights or fulfilment of the respective obligations of each Finance Party.
|
44.3 |
|
44.4 |
|
44.5 |
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause
|
44.6 |
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceased to be a Finance Party.
|
45 |
|
46 |
BAIL-IN
|
46.1 |
Contractual recognition of bail-in
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
47 |
|
48 |
|
48.1 |
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause
|
48.2 |
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints Ince Process Agents Ltd of
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(iii) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
Name
|
Place of
Incorporation
|
Registration number
|
Address for Communication
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
56858
|
Drillship Alonissos Stock Trust, c/o Willmington Trust Company, 1100 N. Market Street, Wilmington, DE 19890-1603, United States |
Name
|
Place of
Incorporation
|
Registration no.
|
Address for Communication
|
|
|
|
|
Drillship Alonissos Owners Inc. (the Drillship Owner)
|
Marshall Islands
|
56857
|
Drillship Alonissos Stock Trust, c/o Willmington Trust Company, 1100 N. Market Street, Wilmington, DE 19890-1603, United States |
Name of Lender
|
Commitment
|
Address for Communication
|
THE ORIGINAL COMMERCIAL LENDERS
|
||
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTS 33, Attn.
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention:
E-mail: joerg.remde@credit-suisse.com
ioannis.efsathopoulos@credit-suisse.com / george.tzelepis@credit-suisse.com Tel: +41 61 266 7494 / +41 61 266 7895 Fax: +41 61 266 7939
Administration matters:
SGTS 33, Attn.
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: loannis Efstathopoulos, Ship Finance / Client services
E-mail: joerg.remde@credit-suisse.com
ioannis.efsathopoulos@credit-suisse.com Tel: +41 61 266 7494
Fax: +41 61 266 7939
Rollover, fees and payments:
SGTS 33, Attn. Edina Aganovic
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: Edina Aganovic
E-mail: edina.aganovic@credit-suisse.com
tobias.winkelmann@credit-suisse.com Tel: +41 61 266 74 90
Fax: +41 61 266 7939 |
DNB Bank ASA
|
USD 65,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
|
|
|
Norway
P 0 Box 1600 Sentrum BjOrvika
M-14 S, 0021 Oslo, Norway Attention: Anne-Lise Iversen, Credit Middle
Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894 |
DVB Bank SE (Amsterdam Branch)
|
USD 65,000,000
|
Credit matters:
DVB Bank SE, Ballindamm 6, 20095 Hamburg, Germany
Attention: Jens Taubken, Offshore Finance E-mail: Jens.Taubken@dvbbank.com
Tel: +49 40 3080 0427
Fax: +49 40 3080 0412 Mobile: +49 174 184 0413 Administration matters:
DVB Bank SE, WTC Schiphol Tower F 6th
Floor, Schiphol Boulevard 255,
1118 BH Schiphol, The Netherlands
Attention: (mogen Hall/Sona Krijger-Dolbakyan, Transaction and Loan Services E-mail: TM.amsterdam-hamburg@dvbbank.com
Tel: +44 207 2564 446 / +31 88 399 7927Fax: +44 207 2564 352 / +31 88 299 8163
Rollover, fees and payments:
DVB Bank SE, Park House, 16-18 Finsbury Circus, London EC2M 7EB, United Kingdom
Attention: Adam Liley, Transaction and Loan Services
E-mail: tls.london@dvbbank.com
Tel: +44 207 2564 390
Fax: +44 207 2564 352 |
Norddeutsche
Landesbank Girozentrale
|
USD 15,000,000
|
Credit matters:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mrs. Corinna Welke, Shipping &
Aircraft Finance Dept.
E-mail: corinna.welke@web.de
Tel: +49 511 361 6848
Fax: +49 511 361 4785 Administration matters:
Friedrichswall 10, 30159 Hannover
|
|
|
Germany
Attention: Mr. Stefan Schulz, Shipping &
Aircraft Finance Dept.
E-mail: stefan.schulz@nordlb.de
Tel: +49 511 361 5584
Fax: +49 511 361 4785 Rollover, fees and payments:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mr. Andre Schulz, Shipping &
Aircraft Finance Dept.
E-mail: andre.schulz@nordlb.de
Tel: +49 511 361 5334
Fax: +49 511 361 4785 |
|
Total Commercial Facility loan Commitment: USD 175,000,000
|
THE ORIGINAL KEXIM GUARANTEED LENDERS
|
|||
DNB Bank ASA
|
USD 95,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjorvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit Middle
Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
|
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTE1
Uetlibergstr. 231
CH-8045 Zurich
Attention:
E-mail: ursula.rickli@credit-suisse.com markus.jakobsson@credit-suisse.com Tel: +41 44 333 53 56 /+41 44 333 53 38
Fax: +41 44 333 21 04
Mobile: +41 79 576 1648
Administration matters:
Uetlibergstr. 231
CH-8045 Zurich
Attention:
Export Finance, Portfolio Administration
E-mail: portfolio.admin@credit-suisse.com
Tel: + 41 44 333 85 36
|
|
|
Fax: +41 44 333 21 04 Rollover, fees and payments:
Uetlibergstr. 231
CH-8045 Zurich Attention:
Export Finance, Client Services E-mail: cp-exfi.cso@credit-suisse.com
Tel: +41 44 333 63
Fax: +41 44 333 79 80 |
Total Kexim Guaranteed Facility Loan Commitment: USD 125,000,000
|
||
KEXIM
|
||
The Export—Import Bank of Korea
|
USD 175,000,000
|
BIFC 20th floor, Munhyeongeumyung-ro 40,
Nam-gu, Busan 608-828,
Korea
Attention: Mr. Seungheon Baek / Ms. Mibo Ahn, Maritime Project Finance Department E-mail: shbaek@koreaexim.go.kr / miboahn @ koreaexim.go.kr
Tel: +82-51-922-8838 / +82-51-922-8837 Fax: +82-51-922-8849
Mobile: +82-10-8842-3462 / +82-10-8872-2889
|
Total Kexim Direct Facility Loan Commitment: USD 175,000,000
|
Facility Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P O Box 1600 Sentrum Bj0rvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
Security Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjorvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
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1 |
Obligors
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1.1 |
Articles of incorporation and Certificate of incorporation (or similar).
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1.2 |
By-laws (or similar) (if applicable).
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1.3 |
Updated Good Standing Certificate.
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1.4 |
A copy of a resolution of the board of directors and shareholders (if applicable) of each Obligor:
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(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
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(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
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(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
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1.5 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party (notarised and apostilled if requested by the Facility Agent).
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1.6 |
Passport photocopies for all Directors certified by the legal advisor of the Borrower.
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1.7 |
A Directors/Secretary's Certificate, certifying and attaching the constitutional documents and authorisations referred to in paragraph 1.1-1.5 above and
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(a) |
certifying that each copy document is correct, complete and in full force and effect as at a the date of this Agreement;
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(b) |
certifying the identity of its directors, officers and
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(c) |
confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
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1.8 |
A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies.
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2 |
Finance Documents
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2.1 |
This Agreement duly executed.
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2.2 |
The Fee Letters duly executed.
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2.3 |
The Hedging Agreements, if applicable.
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2.4 |
The Assignment of Hedging Agreements, if applicable.
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2.5 |
The Assignment of Intra-Group Loans, if applicable.
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2.6 |
The Account Security duly executed, together with notices to and acknowledgements from the Account Bank.
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2.7 |
The Shares Security duly executed, together with (if applicable) original share certificates, stock powers, undated directors' letters of resignation and irrevocable proxies or such other deliverables as required by the legal advisers to the Finance Parties.
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3 |
Building Contract
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3.1 |
Copies of the Building Contract and of all documents signed or issued by the Drillship Owner or the Builder (or both of them) under or in connection with such agreement.
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3.2 |
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution by the Drillship Owner of the Building Contract and of all documents to be executed by such party.
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4 |
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4.1 |
A copy of the
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4.2 |
A certificate of an authorised signatory of the Borrower that the
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4.3 |
A summary of the Total Drilling Contract prepared by legal advisors to the Finance Parties.
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4.4 |
Board resolutions and powers of attorneys evidencing the due authorisation and execution by the Drillship Owner of all documents to be executed by it under or in connection with the
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5 |
Other Documents and Evidence
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5.1 |
Evidence that any process agent referred to in Clause
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5.2 |
If relevant, confirmation that any withholding tax will be paid or application to tax authorities is or will be sent.
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5.3 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or any related document or for the validity and enforceability of any Finance Document and/or related document.
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5.4 |
The Original Financial Statements and a Compliance Certificate.
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5.5 |
To the extent applicable, such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by the Finance Documents, including without limitation a written statement of each Obligor listing the natural persons
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5.6 |
Evidence that any fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid.
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6 |
Kexim Documents
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6.1 |
A duly executed original of the Kexim Guarantee on terms satisfactory to the Kexim Guarantee Agent and all the Kexim Guaranteed Lenders.
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6.2 |
Evidence that the first advance payment of the Kexim Guarantee Premium in relation to the Kexim Guarantee and any costs and expenses which are then due and payable to Kexim has been paid in accordance with the terms of the Kexim Guarantee.
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6.3 |
A legal opinion of Kim & Chang, Korean legal advisers to the Kexim Guaranteed Lenders, in such form as agreed between that legal adviser and the Kexim Guaranteed Lenders.
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7 |
Legal Opinions
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7.1 |
A legal opinion of Wikborg Rein, legal advisers to the Finance Parties in Norway, in such form as agreed between that legal adviser and the Finance Parties.
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7.2 |
The legal opinions to be delivered under paragraph 4 of Part B of this Schedule 2 (Conditions Precedent) being in agreed form.
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7.3 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
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1 |
Obligors
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1.1 |
If required, updated Good Standing Certificate for the Obligors.
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2 |
Finance Documents
|
2.1 |
The Mortgage duly executed, together with documentary evidence that the Mortgage has been duly registered as a valid first preferred ship mortgage in accordance with the laws of the jurisdiction of the Approved Flag.
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2.2 |
The General Assignment duly executed and perfected.
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2.3 |
The Assignment of
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2.4 |
The Manager's Undertaking.
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3 |
Drillship
|
3.1 |
Documentary evidence that the Drillship:
|
(a) |
has been unconditionally delivered by the Builder to, and accepted by, the Drillship Owner under the Building Contract, including but not limited to a copy of the protocol of delivery and acceptance for the Drillship with no material recommendations or adverse notations, and that the full purchase price payable (including the equity payable) and all other sums due to the Builder under the Building Contract, other than the sums to be financed pursuant to the Utilisation have been paid to the Builder;
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(b) |
is definitively and permanently registered in the name of the Drillship Owner under the Approved Flag;
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(c) |
is in the absolute and unencumbered ownership of the Drillship Owner save as contemplated by the Finance Documents;
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(d) |
maintains the Approved Classification with the Approved Classification Society; and
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(e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
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3.2 |
Documents establishing that the Drillship will, as from the Utilisation Date, be managed by the Manager, together with copies of the Manager's Document of Compliance and of the Drillship's Safety Management Certificate (together with any other details of the applicable safety management system which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Drillship including without limitation an ISSC.
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3.3 |
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
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3.4 |
Evidence of the Market Value of the Drillship (based on valuations obtained no earlier than 30 days prior to the Delivery Date), confirming that the Loan is no more than 70 per cent. of the Market Value of the Drillship.
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4 |
Legal Opinions
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4.1 |
A legal opinion of Watson Farley & Williams, London, legal advisers to the Finance Parties in England, in such form as agreed between that legal adviser and the Finance Parties.
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4.2 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Finance Parties in the Marshall Islands, in such form as agreed between that legal adviser and the Finance Parties.
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4.3 |
A legal opinion of Watson Farley & Williams, Paris, legal advisers to the Finance Parties in France, in such form as agreed between that legal adviser and the Finance Parties.
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4.4 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
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From: |
Drillship Alonissos Shareholders Inc.
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To: |
DNB Bank ASA (the Facility Agent)
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Dated: |
[•]
|
1 |
We refer to the agreement. This is the Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
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2 |
We wish to utilise the Commercial Facility Loan, Kexim Direct Facility Loan and Kexim Guaranteed Facility Loan:
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Proposed Utilisation Date:
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[•] (or, if that is not a Business Day, the next Business Day)
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Amount (divided pro rata across the Facilities):
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[•] or, if less, the Available Facility
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Interest Period:
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[•]
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3 |
We confirm that each condition specified in clause 4.1 (initial conditions precedent) and clause 4.2 (further conditions precedent) as they relate to the advance to which this utilisation request refers of the Agreement is satisfied on the date of this Utilisation Request.
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4 |
The proceeds of this advance should be credited to [account].
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5 |
This Utilisation Request is irrevocable.
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From: |
Drillship Alonissos Shareholders Inc.
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To: |
DNB Bank ASA (the Facility Agent)
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Dated: |
[•]
|
1 |
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2 |
We request that the next Interest Period for the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] be [0].
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3 |
This Selection Notice is irrevocable.
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To: |
DNB Bank ASA (the Facility Agent)
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From: |
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
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Dated: |
[•]
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
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2 |
We refer to Clause
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(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause
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(b) |
The proposed Transfer Date is [•].
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(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause
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4 |
To the extent that this Transfer Certificate constitutes a novation under English law, then for the purpose of the Assignment of
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(a) |
the novation created by this Transfer Certificate constitutes a novation as described by article 1271 of the French Civil Code (Code Civil); and
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(b) |
all security interests constituted under the Assignment of
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5 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6 |
Subject to paragraph 4 above, this Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
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7 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
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[Existing Lender]
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[New Lender]
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By: [•]
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By: [•]
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To: |
DNB Bank ASA (the Facility Agent) and Drillship Alonissos Shareholders Inc. as Borrower, for and on behalf of each Obligor
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From: |
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
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Dated: |
[•]
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
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(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
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(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
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(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
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5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 3
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6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause
|
7 |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause
|
8 |
To the extent that this Assignment Agreement constitutes an assignment of rights and obligations under English law, then for the purpose the Assignment of
|
9 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
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10 |
Subject to paragraph 8 above, this Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
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11 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
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[Existing Lender]
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[New Lender]
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By:
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By:
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To: |
DNB Bank ASA (the Facility Agent)
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From: |
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Dated: |
[•] [To be delivered no later than 120/ 60 days after each reporting date]
|
1 |
Minimum credit balance on Retention Account, Clause 20.2
|
2 |
[
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3 |
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4 |
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5 |
|
6 |
The ratio of the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments was [ ], while the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments shall not be less than 1.25:1.]
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7 |
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1 |
[•], a company duly incorporated under the laws of [•], agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause
|
2 |
This Accession Letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accession Letter.
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3 |
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
1 |
We refer to the Agreement. This is a [Prepayment][Cancellation] Notice. Terms defined in the Agreement have the same meaning in this [Prepayment][Cancellation] Notice unless given a different meaning in this [Prepayment][Cancellation] Notice.
|
2 |
[We wish to [prepay the whole Loan] [make a prepayment under the [Loan] [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan]]:
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Proposed Prepayment Date:
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[•] (or, if that is not a Business Day, the next Business Day)
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Amount:
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[•]
|
3 |
[We wish to cancel [the Total Commitments] [unutilised amounts available under the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] in an amount of [•] (in relation to any voluntary cancellation being an amount of minimum USD 10,000,000)].
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Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of the Utilisation Request))
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Three Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of the Utilisation Request)) or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
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Delivery of a duly completed Selection Notice (Clause 9.1 (Selection of Interest Periods))
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Three Business Days before the expiry of the preceding Interest Period (Clause 9.1 (Selection of Interest Periods))
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Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation)
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Three Business Days before the intended Utilisation Date or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
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LIBOR is fixed
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Quotation Day as of 11:00 am London time
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BORROWER
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DRILLSHIP ALONISSOS SHAREHOLDERS INC.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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)
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Witness' address:
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)
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)
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)
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)
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GUARANTOR and DRILLSHIP OWNER
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SIGNED by Dimitrios Glynos
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)
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duly authorised
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)
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for and on behalf of
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)
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DRILLSHIP ALONISSOS OWNERS INC.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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)
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Witness' address:
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)
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)
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)
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COMMERCIAL LENDERS
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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CREDIT SUISSE AG
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DVB BANK SE (AMSTERDAM BRANCH)
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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NORDDEUTSCHE LANDESBANK GIROZENTRALE
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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KEXIM GUARANTEED LENDERS
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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CREDIT SUISSE AG
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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KEXIM
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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THE EXPORT-IMPORT BANK OF KOREA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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MANDATED LEAD ARRANGERS
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DND BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DVB BANK SE (AMSTERDAM BRANCH)
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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HEDGE COUNTERPARTIES
|
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK SE (AMSTERDAM BRANCH)
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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KEXIM GUARANTEE AGENT
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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FACILITY AGENT
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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SECURITY AGENT
|
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name:
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)
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Witness' address:
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)
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Clause
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Index
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Page
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Section 1 Interpretation
|
3
|
|
1
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Definitions and Interpretation
|
3
|
Section 2 The Facilities
|
28
|
|
2
|
The Facilities
|
28
|
3
|
Purpose
|
28
|
4
|
Conditions of Utilisation
|
29
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Section 3 Utilisation
|
30
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|
5
|
Utilisation
|
|
Section 4 Repayment, Prepayment and Cancellation
|
32
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|
6
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Repayment
|
32
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7
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Prepayment and Cancellation
|
33
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Section 5 Costs of Utilisation
|
36
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8
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Interest
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36
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9
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Interest Periods
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39
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10
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Changes to the Calculation of Interest
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39
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11
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Fees
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40
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Section 6 Additional Payment Obligations
|
42
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|
12
|
Tax Gross Up and Indemnities
|
42
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13
|
Increased Costs
|
46
|
14
|
Other Indemnities
|
47
|
15
|
Mitigation by the Lenders
|
50
|
16
|
Costs and Expenses
|
50
|
Section 7 Guarantee
|
52
|
|
17
|
Guarantee and Indemnity
|
52
|
Section 8 Representations, Undertakings and Events of Default
|
55
|
|
18
|
Representations
|
55
|
19
|
Information Undertakings
|
61
|
20
|
Financial Covenants
|
64
|
21
|
Financial covenants after the Interim Maturity Date
|
64
|
22
|
General Undertakings
|
65
|
23
|
Insurance Undertakings
|
72
|
24
|
Drillship Undertakings
|
76
|
25
|
Security Cover after the Interim Maturity Date
|
81
|
26
|
Accounts and Application of Earnings and other amounts
|
82
|
27
|
Events of Default
|
85
|
Section 9 Changes to Parties
|
90
|
|
28
|
Changes to the Lenders
|
90
|
29
|
Changes to the Obligors
|
95
|
Section 10 The Finance Parties
|
96
|
|
30
|
The Facility Agent and the Mandated Lead Arrangers
|
96
|
31
|
The Security Agent
|
105
|
32
|
Kexim Guarantee Agent
|
118
|
33
|
Conduct of Business by the Finance Parties
|
120
|
34
|
Sharing among the Finance Parties
|
121
|
Section 11 Administration
|
123
|
|
35
|
Payment Mechanics
|
123
|
36
|
Set-Off
|
126
|
37
|
Notices
|
126
|
38
|
Calculations and Certificates
|
128
|
39
|
Partial Invalidity
|
129
|
40
|
Remedies and Waivers
|
129
|
41
|
Settlement or Discharge Conditional
|
129
|
42
|
Irrevocable Payment
|
129
|
43
|
Amendments and Waivers
|
129
|
44
|
Confidentiality
|
130
|
45
|
Counterparts
|
133
|
46
|
Bail-In
|
133
|
Section 12 Governing Law and Enforcement
|
134
|
|
47
|
Governing Law
|
134
|
48
|
Enforcement
|
134
|
Schedule 1 The Parties
|
135
|
Schedule 2 Conditions Precedent
|
142
|
Schedule 3 Requests
|
147
|
Schedule 4 Form of Transfer Certificate
|
149
|
Schedule 5 Form of Assignment Agreement
|
152
|
Schedule 6 Form of Compliance Certificate
|
154
|
Schedule 7 Form of Accession Letter
|
156
|
Schedule 8 Repayments
|
157
|
Schedule 9 Form of Prepayment/ Cancellation Notice
|
159
|
Schedule 10 Timetables
|
160
|
Schedule 11 Corporate Structure
|
161
|
Execution Pages
|
162
|
(1) |
DRILLSHIP ALONISSOS SHAREHOLDERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56858 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
|
(2) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56857 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as guarantor (the "Guarantor" or the "Original Guarantor");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original commercial lenders (the "Original Commercial Lenders");
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original lenders under the Kexim Guaranteed Facility (the "Original Kexim Guaranteed Lenders");
|
(5) |
THE EXPORT—IMPORT BANK OF KOREA of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 150-996, Republic of Korea as lender under the Kexim Direct Facility ("Kexim");
|
(6) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH)as mandated lead arrangers (the "Mandated Lead Arrangers");
|
(7) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as hedge counterparties (the "Hedge Counterparties");
|
(8) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent for the Kexim Guaranteed Lenders (the "Kexim Guarantee Agent");
|
(9) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as bookrunner (the "Bookrunner") and coordinator (the "Coordinator");
|
(10) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and
|
(11) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent").
|
(A) |
By the facility agreement dated 13 February 2015 the Lenders agreed to make available to the Borrower facilities of up to USD 475,000,000 in aggregate for the purposes of financing post-delivery no more than 70 per cent. of the Market Value of the Drillship on or around the Delivery Date, which was constructed by the Builder for, and purchased by, the Drillship Owner pursuant to the Building Contract.
|
(B) |
By the Amending and Restating Agreement, the Finance Parties agreed to certain amendments to the facility agreement and the other Finance Documents.
|
(C) |
This Agreement sets out the terms and conditions of the facility agreement as amended and restated by the Amending and Restating Agreement.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
the Commercial Facility Margin for the Commercial Facility;
|
(b) |
the Kexim Direct Facility Margin for the Kexim Direct Facility; and
|
(c) |
the Kexim Guaranteed Facility Margin for the Kexim Guaranteed Facility.
|
(a) |
the amount of its participation in all Advances made; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed Utilisation Date.
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and
|
(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
|
(a) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel Ill: A global regulatory framework for more resilient banks and
|
(b) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(c) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel Ill".
|
(a) |
the interest calculated on the basis of LIBOR only (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Facility or an Unpaid Sum to the last day of the current Interest Period in respect of the Facility or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a) |
cash in hand legally and beneficially owned by it; and
|
(b) |
cash deposits legally and beneficially owned by it, and which are deposited with (i) a Lender, (ii) any other deposit taking institution having a rating of at least A- from Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe acceptable to the Facility Agent (acting with the authorisation of the Majority Lenders) or (iii) any other bank or financial institution approved by the Facility Agent (acting with the authorisation of the Majority Lenders) which in each case:
|
(i) |
is free from any Security, other than pursuant to the Transaction Security;
|
(ii) |
is otherwise at the free and unrestricted disposal of the member of the Restricted Group who owns it; and
|
(iii) |
in the case of cash deposits held by a member of the Restricted Group other than an Obligor, is (in the opinion of the Facility Agent, based upon such documents and evidence as the Facility Agent may require the Borrower to provide in order to form the basis of such opinion) capable or, upon the occurrence of an Event of Default under this Agreement, would become capable of being paid without restriction to an Obligor within five Business Days of its request or demand therefore either by way of a dividend or by way of a repayment of principal (or the payment of interest thereon) in respect of Intra-Group Loan from the relevant Obligor to that member of the Restricted Group.
|
(a) |
any investment in marketable debt obligations issued or guaranteed by (i) a government or (ii) an instrumentality or agency of a government and in respect of (i) and (ii) having a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
|
(b) |
commercial paper (debt obligations) not convertible or exchangeable to any other security:
|
(i) |
for which a recognised trading market exists;
|
(ii) |
issued by an issuer incorporated in the United States of America, the United Kingdom or Norway;
|
(iii) |
which matures within one year after the relevant date of calculation; and
|
(iv) |
which has a credit rating of at least A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe;
|
(a) |
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (b) above and (iii) can be turned into cash on not more than five days' notice; or
|
(a) |
any other debt security approved by the Facility Agent (acting with the authorisation of the Majority Lenders),
|
(a) |
in relation to an Original Commercial Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Commercial Lender Commitment transferred to it under this Agreement; and
|
(a) |
in relation to any other Commercial Lender, the amount of any Commercial Lender Commitment transferred to it under this Agreement,
|
(b) |
any Original Commercial Lender; and
|
(c) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Commercial Facility in accordance with Clause 28.1 (Assignments and transfers by the Lenders), which in each case has not ceased to be a party in accordance with this Agreement. "Commission" shall have the meaning given to it in Clause 19.5 (Budget).
|
(a) |
in relation to a Commercial Lender, its Commercial Lender Commitment;
|
(a) |
in relation to Kexim or any other Lender under the Kexim Direct Facility, its Kexim Commitment;
|
(a) |
in relation to a Kexim Guaranteed Lender, its Kexim Guaranteed Lender Commitment.
|
(a) |
any member of the Restricted Group or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Restricted Group or any of its advisers,
|
(i) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 44 (Confidentiality)); or
|
(ii) |
is identified in writing at the time of delivery as non-confidential by any member of the Restricted Group or any of its advisers; or
|
(iii) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance party is aware, unconnected with the Restricted Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Majority Lenders, pooled or shared with any other person:
|
(i) |
all freight, hire and passage moneys;
|
(ii) |
compensation payable to that Obligor or the Security Agent in the event of requisition of the Drillship for hire;
|
(iii) |
remuneration for salvage and towage services;
|
(iv) |
demurrage and detention moneys;
|
(v) |
damages for breach (or payments for variation or termination) of any Charter;
|
(vi) |
all moneys which are at any time payable under any Insurances in respect of loss of hire;
|
(vii) |
all monies which are at any time payable to that Obligor in respect of general average contribution; and
|
(b) |
if and whenever the Drillship is employed on terms whereby any moneys falling within paragraphs (i) to (vii) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Drillship.
|
(a) |
an account in the name of the Borrower, the Drillship Owner and/or any Intra-Group Charterer with the Account Bank designated "Earnings Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Earnings Account for the purposes of this Agreement,
|
(a) |
any release, emission, spill or discharge into the Drillship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from the Drillship; or
|
(b) |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than the Drillship and which involves a collision between the Drillship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Drillship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Drillship and/or any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from the Drillship and in connection with which the Drillship is actually or potentially liable to be arrested and/or where any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b) |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
|
(c) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
|
(a) |
this Agreement;
|
(b) |
any Fee Letter;
|
(c) |
any Hedging Agreement;
|
(d) |
the Trust Agreement;
|
(e) |
the Put and Call Option Agreement;
|
(f) |
any Account Security;
|
(g) |
any Shares Security;
|
(h) |
the Mortgage;
|
(i) |
any General Assignment;
|
(j) |
the Pledge of Beneficial Interest in Trust;
|
(k) |
any Assignment of Put and Call Option Agreement;
|
(l) |
any Assignment of Hedging Agreements;
|
(m) |
the Assignment of Total Drilling Contract;
|
(n) |
any Assignment of Satisfactory Drilling Contract;
|
(o) |
any Assignment of Intra-Group Loan;
|
(p) |
the Manager's Undertaking;
|
(q) |
any other document (whether or not it creates Security) which is executed as security for, or for the purpose of establishing a priorities subordination arrangement in relation to, the Secured Liabilities; and
|
(r) |
any other document designated as such by the Facility Agent and the Borrower.
|
(a) |
moneys borrowed;
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the applicable Accounting Principles, be treated as a finance or capital lease;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
|
(h) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(i) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
all policies and contracts of insurance, including entries of the Drillship in any protection and indemnity or war risks association, effected in respect of the Drillship, its Earnings or otherwise in relation to the Drillship; and
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium.
|
(a) |
in relation to Kexim, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Kexim Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any Lender under the Kexim Direct Facility, the amount of any Kexim Commitment transferred to it under this Agreement,
|
(a) |
in relation to an Original Kexim Guaranteed Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (the Lenders) and the amount of any other Kexim Guaranteed Lender Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Kexim Guaranteed Lender, the amount of any Kexim Guaranteed Lender Commitment transferred to it under this Agreement,
|
(a) |
any Original Kexim Guaranteed Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Kexim Guaranteed Facility in accordance with Clause 28.1 (Assignments and transfers by the Lenders), which in each case has not ceased to be a party in accordance with this Agreement.
|
(a) |
Kexim;
|
(b) |
the Original Kexim Guaranteed Lenders;
|
(c) |
the Original Commercial Lenders; and
|
(d) |
any New Lender,
|
(a) |
the applicable Screen Rate; or
|
(b) |
if no Screen Rate is available for the currency of that Advance, the Loan, that part of the Loan or that Unpaid Sum), the Reference Bank Rate,
|
(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66% per cent. of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66% per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66% per cent. of the Loan immediately before such repayment,
|
(a) |
however always to include a minimum of two Commercial Lenders.
|
(a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of a Manager; or appoint or remove all, or the majority, of the directors or other equivalent officers of either Manager; give directions with respect to the operating and financial policies of either Manager with which the directors or other equivalent officers of either Manager are obliged to comply; and/or
|
(b) |
the holding beneficially of more than 50 per cent. of the issued share capital of a Manager (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
|
(a) |
as at a date not more than 14 days previously (or, in relation to the valuations delivered pursuant to paragraph 3.4 of Part B of Schedule 2 (Conditions Precedent), 30 days previously);
|
(b) |
by an Approved Broker;
|
(c) |
with or without physical inspection of the Drillship (as the Facility Agent may require); and
|
(d) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any charter contract,
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any member of the Restricted Group or the Restricted Group as a whole; or
|
(b) |
the ability of any Obligor to perform its obligations under any Finance Document; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a) |
an account in the name of the Drillship Owner with the Account Bank designated "Operating Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Operating Account for the purposes of this Agreement.
|
(a) |
Security created by the Finance Documents;
|
(b) |
Security disclosed in writing to the Facility Agent prior to the date of this Agreement and acceptable to the Facility Agent;
|
(c) |
liens for unpaid master's and current crew's wages in accordance with usual maritime practice;
|
(d) |
liens for salvage;
|
(e) |
any ship repairer's or outfitter's possessory lien arising by operation of law and not exceeding USD 2,500,000; and
|
(f) |
any other liens incurred in the ordinary course of operating such Drillship by operation of law and securing obligations not more than 30 days overdue and not exceeding USD 2,500,000.
|
(a) |
its jurisdiction of incorporation;
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party is situated;
|
(c) |
any jurisdiction where it conducts its business; and
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party.
|
(a) |
each member of the Restricted Group; and
|
(b) |
each of its directors and officers, employees, agents and representatives.
|
(a) |
any expropriation, confiscation, requisition or acquisition of the Drillship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension) unless it is within 30 days redelivered to the full control of the Drillship Owner; and
|
(b) |
any arrest, capture, seizure or detention of the Drillship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the Drillship Owner.
|
(a) |
listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person);
|
(b) |
located in or incorporated under the laws of any country or territory that is the target of comprehensive, country- or territory-wide Sanctions which attach legal effect to being located in or incorporated under the laws of any country or territory that is the target of comprehensive, country or territory-wide Sanctions; or
|
(c) |
directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above.
|
(a) |
an account in the name of the Borrower with the Account Bank designated "Retention Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Retention Account for the purposes of this Agreement.
|
(a) |
the lists of Sanctions designations and/or targets maintained by any Sanctions Authority; and/or
|
(b) |
any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, from time to time.
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b) |
all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Secured Parties;
|
(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
|
(i) |
rights intended for the sole benefit of the Security Agent; and
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a) |
has direct or indirect control; or
|
(b) |
owns directly or indirectly more than fifty (50) per cent (votes and/or capital), for the purpose of paragraph (a), an entity shall be treated as being controlled by a person if that person is able to direct its affairs and/or control the composition of its board of directors or equivalent body.
|
(a) |
strictly until the completion of the scope of work currently undertaken by Acqualis Offshore, Acqualis Offshore; and
|
(b) |
thereafter, any other firm appointed by the Facility Agent (acting in the instructions of the Majority Lenders) in consultation with the Borrower.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of the Drillship; or
|
(b) |
any Requisition.
|
(a) |
in the case of an actual loss of the Drillship, the date on which it occurred or, if that is unknown, the date when the Drillship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Drillship, the earlier of:
|
(i) |
the date on which a notice of abandonment is given to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower or the Drillship Owner with the Drillship's insurers in which the insurers agree to treat the Drillship as a total loss; and
|
(c) |
in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
a person which is resident for tax purposes in the US; or
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) or any law in force from time to time in Switzerland relating to value added tax; and
|
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "Account Bank", the "Facility Agent", a "Mandated Lead Arranger", the "SecurityAgent", any "Hedge Counterparty" "Finance Party" any "Secured Party", any "Obligor" or any other "person" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii) |
"assets" includes present and future properties, revenues and rights of every description;
|
(iii) |
"contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv) |
"document" includes a deed and also a letter, fax or telex;
|
(v) |
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi) |
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;
|
(vii) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(viii) |
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
(ix) |
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
(x) |
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(xi) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(xii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiii) |
a time of day is a reference to London time;
|
(xiv) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
(xv) |
words denoting the singular number shall include the plural and vice versa; and
|
(xvi) |
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(a) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(b) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(c) |
A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
|
1.3 |
Construction of insurance terms
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of all Lenders.
|
1.5 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document including but not limited to Clause 16 (Costs and expenses), a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
(c) |
Any Receiver, Delegate or any other person described in paragraph (b) of Clause 14.2 (Other indemnities), paragraph (b) of Clause 30.11 (Exclusion of liability) or paragraph (b) of Clause 31.11 (Exclusion of liability) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
2 |
THE FACILITIES
|
2.1 |
The Facilities
|
(a) |
a term loan facility which the Commercial Lenders make available in an aggregate principal amount not exceeding the Total Commercial Facility Loan Commitment, being USD 175,000,000 (the "Commercial Facility");
|
(b) |
a term loan facility which Kexim makes available in an aggregate principal amount not exceeding the Total Kexim Direct Facility Loan Commitment, being USD 175,000,000 (the "Kexim Direct Facility"); and
|
(c) |
a term loan facility which the Kexim Guaranteed Lenders make available in an aggregate principal amount not exceeding the Total Kexim Guaranteed Facility Loan Commitment, being USD 125,000,000 (the "Kexim Guaranteed Facility").
|
2.2 |
Finance Parties' rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
(c) |
A Finance Party may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
(d) |
Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the consent of any other Finance Party or joining any other Finance Party to the relevant proceedings.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
no Default is continuing or would result from the proposed Advance;
|
(b) |
the Repeating Representations to be made by each Obligor are true;
|
(c) |
the Facility Agent has received, or is satisfied it will receive when the Advance is made available, all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent to the Utilisation) in form and substance satisfactory to the Facility Agent.
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).
|
(b) |
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, all the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification unless directly caused by the gross negligence or wilful misconduct of the Facility Agent.
|
4.4 |
Waiver of conditions precedent
|
5 |
UTILISATION
|
5.1 |
Delivery of the Utilisation Request
|
(a) |
The Borrower may utilise the Facilities by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b) |
The Borrower may not deliver more than one Utilisation Request in respect of the Facilities. All three Facilities must be utilised on the Utilisation Date.
|
5.2 |
Completion of the Utilisation Request
|
(a) |
The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
the proposed Utilisation Date is the Delivery Date of the Drillship and is a Business Day within the applicable Availability Period;
|
(ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
|
(iii) |
the proposed Interest Period complies with Clause 9 (Interest Periods); and
|
(iv) |
it specifies the account of the Builder in accordance with the Building Contract and/or the account of the Drillship Owner for reimbursement to the Drillship Owner of amounts already paid to the Builder.
|
(a) |
Only one Advance under each Facility may be requested in the Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in the Utilisation Request must be dollars.
|
(b) |
The amount of the proposed Advance must be an amount which is not more than the amount available pursuant to Clause 2.1 (The Facilities).
|
(c) |
The Utilisation for the Drillship must be utilised pro rata across the three Facilities.
|
(d) |
The aggregate amount of the proposed Advance must be an amount which is not more than 70 per cent. of the Market Value of the Drillship.
|
5.4 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Advance available by the Utilisation Date through its Facility Office.
|
(b) |
Upon receipt of the Utilisation Request, the Facility Agent shall by the Specified Time notify each Lender and the Kexim Guarantee Agent of the details of the requested Advance and the amount of each Lender's participation.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Payment to third parties
|
5.7 |
Disbursement of Advance to third party
|
5.8 |
Prepositioning of funds
|
(a) |
agree to pay interest on the amount of such funds at the rate described in Clause 8.1 (Calculation of interest) applicable to the first Interest Period for the period during which funds have been pre-positioned and so that interest shall be paid together with the first payment of interest in respect of the Advance at the Utilisation Date (being the Delivery Date) or, if the Utilisation Date does not occur, within three Business Days of demand by the Facility Agent; and
|
(b) |
shall, without duplication, indemnify each Finance Party against any losses it may incur in connection with such arrangement.
|
6 |
REPAYMENT
|
6.1 |
Repayment of Advances
|
(a) |
The Borrower shall repay each Advance of each Facility by monthly repayments (each a "Repayment Instalment") together with any sums payable out of Excess Cash Flow pursuant to Clause 7.6 (Cash sweep), and, in relation to the Commercial Facility, the Commercial Facility Balloon (as defined in paragraph (c) below), in each case to be made in accordance with paragraph (c) below and Schedule 8 (Repayments) as attached hereto and as shall be updated in accordance with paragraph (e) below.
|
(b) |
The repayment of each Advance shall commence on the first Repayment Date and on each Repayment Date thereafter, as set out in Schedule 8 (Repayments).
|
(c) |
The Repayment Instalments under each Advance and the amount of the Commercial Facility Balloon shall be calculated as follows:
|
(i) |
the amount drawn under the relevant Facilities, which was originally split between the three Facilities in the ratio 175 : 125 : 175, and thereafter:
|
(A) |
in the case of the Kexim Direct Facility and the Kexim Guaranteed Facility, spread equally across the Repayment Dates as set out in Schedule 8 (Repayments); and
|
(B) |
in the case of the Commercial Facility, spread (proportionally as set out in Schedule 8 (Repayments)) in equal amounts across the Repayment Dates with a balloon payment (the "Commercial Facility Balloon") on the Commercial Facility Termination Date aggregating all amounts remaining then outstanding under the Commercial Facility; and
|
(ii) |
the aggregate principal outstanding on the Commercial Facility Termination Date shall not exceed USD 200,000,000 (the "Commercial Facility Termination Date Balance").
|
(a) |
Unless the Commercial Facility has been renewed as contemplated in Clause 7.4 (Kexim prepayment option), the Commercial Facility Loan shall be repaid in full on the Commercial Facility Termination Date.
|
(b) |
Schedule 8 (Repayments) sets out the Repayment Instalments and the amount of the Commercial Facility Balloon and shall be updated monthly following the Effective Date to reflect the repayments and prepayments as applied according to this Clause 6.1 (Repayment of Advances) and Clause 7.6 (Cash sweep).
|
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(b) |
upon the Facility Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrower shall repay that Lender's participation in the Facility concerned on the last day of the Interest Period for that Facility occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
7.2 |
Voluntary and automatic cancellation
|
(a) |
The Borrower may, if it gives the Facility Agent not less than five Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD 1,000,000) of any unutilised Facility. Any cancellation under this Clause 7.2 (Voluntary and automatic cancellation)) of a Facility or Facilities shall reduce the Commitments of the Lenders under the three Facilities rateably. Subject to the foregoing, any cancellation under this Clause 7.2 (Voluntary and automatic cancellation) of the Commercial Facility shall reduce the Commitments of the Commercial Lenders under the Commercial Facility rateably.
|
(b) |
The unutilised Commitment of each Lender in respect of any of the Facilities shall be automatically cancelled at close of business on the Utilisation Date.
|
7.3 |
Voluntary prepayment of the Loan
|
(a) |
The Borrower may, if it gives the Facility Agent not less than 30 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD 10,000,000).
|
(b) |
Any partial prepayment under this Clause 7.3 (Voluntary prepayment of the Loan) shall be applied pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments.
|
7.4 |
Kexim prepayment option
|
(a) |
In the event that the Commercial Facility has not been extended hereunder by the Commercial Lenders or otherwise refinanced in each case on terms acceptable to Kexim and the Kexim Guarantor by the date falling three Months prior to the Commercial Facility Termination Date, Kexim and the Kexim Guarantor (acting through the Kexim Guarantee Agent) shall each have the option, but not the obligation, to terminate the Kexim Direct Facility Loan and the Kexim Guaranteed Facility Loan at the Commercial Facility Termination Date. Unless the Borrower has been notified in writing by Kexim and the Kexim Guarantee Agent no later than 60 days before the Commercial Facility Termination Date that Kexim and
|
(b) |
This right of prepayment for the benefit of the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim set out in paragraph (a) above shall thereafter also arise for the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim at all other relevant times where the Commercial Facility having been extended or refinanced for a further period pursuant to sub-clause (a) above has not been further extended or otherwise refinanced on terms acceptable to the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim by the date falling three Months prior to the maturity date of so extended or refinanced Commercial Facility, so long as any Kexim Direct Facility Loan and/or any Kexim Guaranteed Facility loan remains at such time outstanding under this Agreement.
|
7.5 |
Mandatory prepayment on sale or Total Loss
|
(a) |
in the case the Drillship is sold or otherwise disposed of, on or before the date upon which the sale is completed by delivery of the Drillship to the buyer or disposal of the Drillship is otherwise completed; or
|
(b) |
in the case of a Total Loss, on the earlier of (i) the date falling 120 days, or such later date as may be agreed by the Facility Agent (acting on the instructions of the Lenders), after the Total Loss Date and (ii) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.6 |
Cash sweep
|
(a) |
The Drillship Owner shall irrevocably authorise the Account Bank to transfer the Excess Cash Flow to the Facility Agent from its Earnings Account on a monthly basis as specified in Clause 26.1 (Payment of Earnings).
|
(b) |
The Borrower shall irrevocably authorise the Account Bank promptly to transfer any Put and Call Receipts to the Facility Agent from its Retention Account.
|
(c) |
The Excess Cash Flow, any Put and Call Receipts and any amounts received by the Facility Agent under Clause 26.3 (Operating Account) shall be applied in prepayment pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments.
|
7.7 |
Restrictions
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be substantially in the form of Schedule 9 (Form of Prepayment / Cancellation Notice) hereto and shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs pursuant to Clause 10.4 (Break Costs) and prepayment fee pursuant to Clause 7.8 (Prepayment fee) below, without premium or penalty.
|
(c) |
The Borrower may not reborrow any part of a Facility which is prepaid.
|
(d) |
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f) |
If the Facility Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to the Borrower or all Lenders, as appropriate.
|
7.8 |
Prepayment fee
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
(a) |
the Applicable Margin; and
|
(b) |
LIBOR.
|
8.2 |
Payment of interest
|
(a) |
The Borrower shall pay accrued interest on each Advance on the last day of each Interest Period relating to it.
|
(b) |
If an Interest Period is longer than one Month, the Borrower shall pay interest accrued on the Advance on the dates falling at monthly intervals after the first day of the Interest Period.
|
8.3 |
Default interest
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 200 basis points higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 (Default interest) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b) |
If an Unpaid Sum consists of all or part of an Advance which became due on a day which was not the last day of an Interest Period relating to it:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Advance; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 200 basis points higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
(d) |
Additionally the rate of interest payable on any amount to which Clause 8.1 (Calculation of interest) continues to apply shall increase by 200 basis points on the date following any notice served by the Facility Agent following an Event of Default and whilst it is continuing, unremedied or unwaived.
|
8.4 |
Notification of rates of interest
|
8.5 |
Hedging
|
(a) |
The Borrower may request a Hedge Counterparty to enter into Hedging Agreements and shall if such Hedging Agreements are entered into after that date maintain such Hedging Agreements in accordance with this Clause 8.5 (Hedging).
|
(b) |
Each Hedging Agreement shall:
|
(i) |
be with a Hedge Counterparty;
|
(ii) |
be for a term ending on or before the Termination Date;
|
(iii) |
have settlement dates coinciding with the Interest Payment Dates;
|
(iv) |
be in agreed form;
|
(v) |
provide for two-way payments in the event of a termination of a transaction in respect of a Hedging Agreement, whether on a Termination Event (as defined in the relevant Hedging Agreement) or on an Event of Default (as defined in the relevant Hedging Agreement); and
|
(vi) |
provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars.
|
(c) |
The rights of the Borrower under the Hedging Agreements shall be assigned by way of security under an Assignment of Hedging Agreements. Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by the Borrower pursuant to the Assignment of Hedging Agreements of its rights under the Hedging Agreements to which it is party in favour of the Security Agent. Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement.
|
(d) |
The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
|
(e) |
Neither a Hedge Counterparty nor the Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent.
|
(f) |
Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to a conflict with any provision of this Agreement.
|
(g) |
If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment under this Agreement, will exceed 100 per cent. of the Loan at that time, the Borrower must promptly notify the Facility Agent and must, at the request of the Facility Agent, reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent so that it no longer exceeds or will not exceed 100 per cent. of the Loan then or that will be outstanding.
|
(h) |
Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (g) above will be apportioned as between those transactions pro rata.
|
(i) |
Paragraph (g) above shall not apply to any transactions in respect of any Hedging Agreement under which no Borrower has any actual or contingent indebtedness.
|
(j) |
Subject to paragraph (k) below, neither a Hedge Counterparty nor the Borrower may terminate or close out any transactions in respect of any Hedging Agreement (in whole or in part) except:
|
(i) |
in accordance with paragraph (g) above;
|
(ii) |
in the case of termination or closing out by a Hedge Counterparty, on the occurrence of Illegality, a Force Majeure Event, a Tax Event,Failure to Pay or Bankruptcy (as each such expression is defined in the relevant Hedging Agreement);
|
(iii) |
in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent serves notice under paragraph (b) of Clause 27.21 (Acceleration) or, having served notice under paragraph (b) of Clause 27.21 (Acceleration), makes a demand;
|
(iv) |
in the case of any other termination or closing out by a Hedge Counterparty or the Borrower, with the consent of the Facility Agent; or
|
(v) |
If the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged in full;
|
(k) |
If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under sub-paragraph (iii) of paragraph (j) above, such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent.
|
(l) |
A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if the Borrower is in breach of its payment obligations under any transaction in respect of that Hedging Agreement.
|
(m) |
The Security Agent shall not be liable for the performance of any of the Borrower's obligations under a Hedging Agreement.
|
(n) |
If a Hedging Agreement is entered into after the delivery of the Drillship, the Borrower shall amend the Mortgage and other Finance Documents as reasonably required by the Facility Agent for the purpose of securing that Hedging Agreement entered into after the Delivery Date or enter into a new Mortgage and amend the other Finance Documents at the request of the Facility Agent.
|
(o) |
The Borrower agrees that, prior to them (or any of them) entering into any interest rate swap or other hedge instrument with a counterparty (other than a Hedge Counterparty, an "Other Hedge Counterparty") for the purpose of hedging any interest rate risk under this Agreement, the Borrower shall offer for a period of not less than five Business Days to enter into a swap, or other instrument, on the same proposed terms and conditions with the Hedge Counterparties (with each Hedge Counterparty taking such portion as may be agreed between the Borrower and the Hedge Counterparties or, if one or more Hedge Counterparties declines such an offer or the Borrower elects only to enter into the hedge instrument with one of them, the remaining Hedge Counterparty or Hedge Counterparties (as the case may be) shall be entitled to take such portion as it or they (as the case may be) may agree with the Borrower). If all Hedge Counterparties decline such an offer or if the Borrower elects not to proceed on the basis that the offers are not competitive, the Borrower may then (subject, and without prejudice, to the requirements set out elsewhere in the Finance Documents) enter into such swap, or other instrument, on the same terms and conditions offered to those declining Hedge Counterparties (and in the same proportion as those Hedge Counterparties would have taken if they had accepted), with the Other Hedge Counterparty. The rights of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be assigned by way of Security to the Security Agent, and the obligations and liabilities of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be fully subordinated (by way of a subordination agreement) to the obligations and liabilities of the Borrower under the Finance Documents.
|
9 |
INTEREST PERIODS
|
9.1 |
Selection of Interest Periods
|
(a) |
The Borrower may select the first Interest Period for an Advance in the Utilisation Request. The Borrower may select each subsequent Interest Period in a Selection Notice.
|
(b) |
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrower not later than the Specified Time.
|
(c) |
If the Borrower fails to select an Interest Period in the Utilisation Request or fails to deliver a Selection Notice to the Facility Agent in accordance with paragraphs (a) and (b) above, the relevant Interest Period will be one Month.
|
(d) |
The Borrower may select an Interest Period of one, three or six Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders).
|
(e) |
An Interest Period for an Advance shall not extend beyond the applicable Termination Date, but shall be shortened so that it ends on the applicable Termination Date.
|
(f) |
In respect of a Repayment Instalment, an Interest Period for a part of the Advance equal to such Repayment Instalment shall end on the Repayment Date relating to it if such date is before the end of the Interest Period then current.
|
(g) |
The first Interest Period for an Advance shall start on the Utilisation Date and each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
9.2 |
Non-Business Days
|
10 |
CHANGES TO THE CALCULATION OF INTEREST
|
10.1 |
Absence of quotations
|
10.2 |
Market disruption
|
(a) |
If a Market Disruption Event occurs in relation to any Advance for any Interest Period, then the rate of interest on each Lender's share of the Advance (if any) for the Interest Period shall be the rate per annum which is the sum of:
|
(i) |
the Applicable Margin; and
|
(ii) |
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Advance from whatever source it may reasonably select.
|
(b) |
In this Agreement "Market Disruption Event" means:
|
(i) |
at or about noon on the Quotation Day for the relevant Interest Period, the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest Period; or
|
(ii) |
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in the Advance concerned exceed 50 per cent. of that Advance) that the cost to it or them of funding its participations in the Advance concerned or part of the Advance concerned from whatever source it may reasonably select be in excess of LIBOR.
|
10.3 |
Alternative basis of interest or funding
|
(a) |
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(b) |
Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders who participate in the relevant Advance and the Borrower, be binding on all Parties to the Finance Documents.
|
10.4 |
Break Costs
|
(a) |
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of an Advance or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Advance or Unpaid Sum.
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
11 |
FEES
|
11.1 |
Commitment fee
|
(a) |
The Borrower shall pay to the Facility Agent (for the account of each Lender) a commitment fee (the "Commitment Fee") computed at the rate of 40 per cent. per annum on the relevant Applicable Margin calculated on the undrawn Commitment of each Lender for each Facility, commencing on the date of this Agreement having been signed, and ending on the last day of the relevant Availability Period for each Facility.
|
(b) |
The accrued Commitment Fee is payable in arrears on the last day of each successive period of three Months which ends during the Availability Period, on the Utilisation Date and, if cancelled, on the cancelled amount of the relevant Lender's or Lenders' Commitment at the time the cancellation is effective.
|
11.2 |
Other fees
|
11.3 |
Kexim Guarantee Premium
|
(a) |
The Borrower acknowledges that the Kexim Guaranteed Lenders shall procure the placement of the Kexim Guarantee either through the Kexim Guarantee Agent or directly with the Kexim Guarantor and shall benefit from it throughout the duration of the Security
|
(b) |
The Borrower agrees that its obligation to make the payments set out in paragraph (a) above to the Facility Agent in respect of the Kexim Guarantee Premium (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The Kexim Guarantee Premium (or any part thereof) shall be refundable only in accordance with the terms of the Fee Letter referred to in paragraph (a) above.
|
(c) |
The Borrower acknowledges that the amount of the Kexim Guarantee Premium will be solely determined by the Kexim Guarantor and no Kexim Guaranteed Lender is in any way involved in the determination of the amount of the Kexim Guarantee Premium and agrees that the Borrower shall have no claim or defence against any Kexim Guaranteed Lender in connection with the amount of the Kexim Guarantee Premium.
|
(d) |
Any refund of the Kexim Guarantee Premium received by a Finance Party shall, provided no Event of Default is continuing, be promptly paid or transferred to the Borrower.
|
12 |
TAX GROSS UP AND INDEMNITIES
|
12.1 |
Definitions
|
(a) |
In this Agreement:
|
(b) |
Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
(c) |
This Clause 12 (Tax gross up and indemnities) shall not apply to any Hedging Agreement.
|
12.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
12.3 |
Tax indemnity
|
(a) |
The Borrower shall (within three Business Days of demand by the Facility Agent) pay to a Protect(b) ed Party an amount equal to the loss, liability or cost which that Protected Party
|
(c) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(A) |
is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or
|
(B) |
relates to a FATCA Deduction required to be made by a Party.
|
(d) |
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
(e) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
|
12.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit; the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
|
12.5 |
Stamp taxes
|
12.6 |
VAT
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d) |
Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliances with any other law, regulation or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If the Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i) |
where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where the Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(iv) |
a withholding certificate on Form W-8 or Form W-9 or any other relevant form; or
|
(v) |
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f) |
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated
|
(h) |
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
12.8 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
13 |
INCREASED COSTS
|
13.1 |
Increased costs
|
(a) |
Subject to Clause 13.3 (Exceptions), the Borrower shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates which:
|
(i) |
arises as a result of:
|
(A) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
(B) |
compliance with any law or regulation made,
|
(ii) |
arises as a result of the implementation, interpretation, administration or application of or compliance with Basel Ill, CRD IV or CRR or any law or regulation that implements or applies Basel Ill, CRD IV or CRR
|
(b) |
In this Agreement, "Increased Costs" means:
|
(i) |
a reduction in the rate of return from any Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii) |
an additional or increased cost; or
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
13.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
(d) |
compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost);
|
(e) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(f) |
incurred by a Hedge Counterparty in its capacity as such.
|
14 |
OTHER INDEMNITIES
|
14.1 |
Currency indemnity
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
(i) |
making or filing a claim or proof against that Obligor; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
(c) |
This Clause 14.1 does not apply to any sum due under a Hedging Agreement
|
14.2 |
Other indemnities
|
(a) |
The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Event of Default;
|
(ii) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 34 (Sharing among the Finance Parties);
|
(iii) |
funding, or making arrangements to fund, its participation in an Advance requested by the Borrower in the Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or
|
(v) |
any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by a Secured Party as a result of conduct of any Obligor or member of the Restricted Group or any of their partners, directors, officers employees, agents or advisors, that violates any Sanctions.
|
(b) |
The Borrower shall (or shall procure that an Obligor will) within three Business Days of demand indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, the Drillship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
(i) |
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
(ii) |
in connection with any Environmental Claim.
|
(d) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (Other indemnities) and the provisions of the Third Parties Act.
|
14.3 |
Mandatory Cost
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank, the Swiss National Bank or the Swiss Financial Market Supervisory Authority (FINMA) or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation
|
14.4 |
Indemnity to the Servicing Banks and the Kexim Guarantee Agent
|
(a) |
investigating any event which it reasonably believes is a Default; or
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
14.5 |
Indemnity to the Security Agent
|
(a) |
The Borrower shall (or shall procure that an Obligor will) within five Business Days of demand indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any Secured Party:
|
(i) |
in relation to or as a result of:
|
(A) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(B) |
the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(C) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; and
|
(D) |
any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security,
|
(ii) |
which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise than as a result of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b) |
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
15 |
MITIGATION BY THE LENDERS
|
15.1 |
Mitigation
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) or paragraph (a) of Clause 14.3 (Mandatory Cost) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2 |
Limitation of liability
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
(b) |
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16 |
COSTS AND EXPENSES
|
16.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement and the Transaction Security; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
16.2 |
Amendment costs
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to Clause 35.9 (Change of currency); or
|
(c) |
an Obligor requests, and the Security Agent agrees to, the release of any part of the Charged Property from the Transaction Security,
|
16.3 |
Enforcement and preservation costs
|
16.4 |
Web Services
|
17 |
GUARANTEE AND INDEMNITY
|
17.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand by the Facility Agent pay that amount as if it were the principal obligor; and
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand by the Facility Agent against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (Guarantee and Indemnity) if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2 |
Continuing guarantee
|
17.3 |
Reinstatement
|
17.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, take up or enforce, any rights against, or security over assets
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
17.5 |
Immediate recourse
|
17.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of the Guarantor's liability under this Clause 17 (Guarantee and Indemnity).
|
17.7 |
Deferral of Guarantor's rights
|
(a) |
to be indemnified by an Obligor;
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
|
(d) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
|
(e) |
to exercise any right of set-off against any Obligor; and/or
|
(f) |
to claim or prove as a creditor of any Obligor in competition with any Secured Party.
|
17.8 |
Additional security
|
17.9 |
Applicability of provisions of Guarantee to other Security
|
18 |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(a) |
It is a corporation, duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(b) |
It and each of its Subsidiaries (if any) has the power to own its assets and carry on its business as it is being conducted.
|
18.3 |
Binding obligations
|
18.4 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have the first ranking priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking security.
|
18.5 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
the constitutional documents of any member of the Restricted Group; or
|
(c) |
any agreement or instrument binding upon it or any member of the Restricted Group or any member of the Restricted Group's assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.6 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
in the case of the Drillship Owner, its execution of the Total Drilling Contract and the Building Contract, the purchase of and payment for the Drillship under that Building Contract and its registration of the Drillship under the Approved Flag;
|
(ii) |
its entry into, performance and delivery of, each Finance Document to which it is a party and, in the case of the Drillship Owner, the Total Drilling Contract and the Building Contract and the transactions contemplated by those Finance Documents, the Building Contract and the Total Drilling Contract.
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
|
18.7 |
Validity and admissibility in evidence All Authorisations required or desirable:
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the Total Drilling Contract; and
|
(b) |
to make the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the Total Drilling Contract, admissible in evidence in its Relevant Jurisdictions,
|
18.8 |
Governing law and enforcement
|
(a) |
The choice of governing law of each Finance Documents to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.
|
18.9 |
No filing or stamp taxes
|
(a) |
in case of the Drillship Owner, the registration of the Mortgage at the Marshall Island ship registry which will be made at the Delivery Date;
|
(b) |
if applicable, any other registration required by the legal advisers to the Finance Parties, which will be made and paid promptly after the date of the relevant Finance Documents.
|
18.10 |
Deduction of Tax
|
18.11 |
Taxes paid
|
(a) |
It is not and no other member of the Restricted Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Restricted Group is) overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
18.12 |
No default
|
(a) |
No Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries (if any) or to which its (or any of its Subsidiaries') assets are subject.
|
18.13 |
No misleading information
|
(a) |
Any factual information provided by any member of the Restricted Group for the purposes of this Agreement, including but not limited to the Budget delivered in accordance with Clause 19.5 (Budget), was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in the information, including but not limited to the Budget, being untrue or misleading in any material respect.
|
18.14 |
Original Financial Statements
|
(a) |
The Original Financial Statements were prepared in accordance with the applicable Accounting Principles consistently applied.
|
(b) |
The Original Financial Statements fairly represent its financial condition and operations during the relevant financial year.
|
(c) |
There has been no material adverse change in the assets, business or consolidated financial condition of the Restricted Group since 31 December 2013.
|
18.15 |
Pari passu ranking
|
18.16 |
No proceedings pending or threatened
|
18.17 |
Validity and completeness of the Building Contract and Total Drilling Contract
|
(a) |
The Building Contract and the Total Drilling Contract entered into constitutes legal, valid, binding and enforceable obligations of the Builder, the Client and the Drillship Owner respectively, as the case may be.
|
(b) |
The copies of the Building Contract and the Total Drilling Contract delivered to the Facility Agent before the date of this Agreement are true and complete copies.
|
(c) |
No amendments or additions to the Building Contract or the Total Drilling Contract have been agreed nor has (i) the Drillship Owner or the Builder waived any of their respective rights under the Building Contract or (ii) the Drillship Owner or the Client waived any of their respective rights under the Total Drilling Contract.
|
18.18 |
No rebates etc.
|
18.19 |
No breach of laws
|
18.20 |
Compliance with Environmental Laws
|
18.21 |
No Environmental Claim
|
18.22 |
No Environmental Incident
|
18.23 |
ISM and ISPS Code compliance
|
18.24 |
Financial Indebtedness
|
18.25 |
Overseas companies
|
18.26 |
Place of business
|
18.27 |
No employee or pension arrangements
|
18.28 |
Ownership
|
(a) |
The Trust owns all of the shares and the ownership interests in the Borrower as described in Schedule 11 (Corporate Structure).
|
(b) |
The Trust owns all of the shares and the ownership interests in the Drillship Owner as described in Schedule 11 (Corporate Structure).
|
(c) |
None of the shares in any of the companies within the Restricted Group are subject to any option to purchase, pre-emption rights or similar rights.
|
18.29 |
Good title to assets
|
18.30 |
The Drillship
|
(a) |
in the absolute ownership of the Drillship Owner, free and clear of all encumbrances (other than any Permitted Security), and the Drillship Owner is the sole, legal and beneficial owner of the Drillship;
|
(b) |
registered in the name of the Drillship Owner under the Approved Flag;
|
(c) |
operationally seaworthy in every way and fit for service; and
|
(d) |
classed with the Approved Classification with the Approved Classification Society and is free of all overdue requirements and recommendations.
|
18.31 |
No money laundering
|
18.32 |
Corrupt practices
|
18.33 |
Sanctions
|
(a) |
a Restricted Party;
|
(b) |
in breach of Sanctions; or
|
(c) |
subject to or involved in any complaint, claim, proceeding, formal notice, investigation or other action by any regulatory or enforcement authority or third party concerning any Sanctions.
|
18.34 |
No immunity
|
18.35 |
Insolvency
|
(a) |
No corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.11 (Insolvency proceedings) has been taken or, to the knowledge of the Borrower, threatened in relation to a member of the Restricted Group.
|
(b) |
No creditors' process described in Clause 27.12 (Creditors' process), has been taken or threatened in relation to any Obligor.
|
(c) |
None of the circumstances described in Clause 27.10 (Insolvency) applies to any Obligor.
|
(d) |
The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Finance Documents.
|
18.36 |
Kexim Guarantee
|
18.37 |
US Tax Obligor
|
18.38 |
Repetition
|
19.1 |
General
|
19.2 |
Financial statements
|
(a) |
as soon as the same become available, but in any event within 120 days after the end of each financial year its audited consolidated financial statements (to include a profit and loss account, balance sheet and cash flow statement);
|
(b) |
as soon as the same become available, but in any event within 60 days after each Quarter Date in each financial year its unaudited consolidated financial statements for that financial quarter (to include a profit and loss account, balance sheet and, where available, a cash flow statement); and
|
(c) |
prior to each financial year, detailed two year cash flow projections of the Restricted Group in a format approved by the Facility Agent (acting reasonably).
|
19.3 |
Compliance Certificate
|
(a) |
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraphs (a) and (b) of Clause 19.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) and, if applicable, Clause 21 (Financial covenants after the Interim Maturity Date) as at the date as at which those financial statements were drawn up.
|
(b) |
Each Compliance Certificate shall be signed by the chief financial officer or any authorized signatory of the Borrower.
|
19.4 |
Requirements as to financial statements
|
(a) |
a description of any change necessary for those financial statements to reflect the applicable Accounting Principles, accounting practices and reference periods upon which the Original Financial Statements were prepared; and
|
(b) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) and, if applicable, Clause 21 (Financial covenants after the Interim Maturity Date) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
19.5 |
Budget
|
(a) |
The Borrower shall deliver to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests) on or prior to the Effective Date a budget for the Restricted Group from the period up to and including 31 December 2018, broken down monthly (each such Month being a "Budget Month"), of projected cash receipts and disbursements (the "Budget"), and which shall include a breakdown of the following costs and expenses:
|
(i) |
a fixed amount of operating costs and expenses, which shall include the costs of cold-stacking the Drillship ("OPEX");
|
(ii) |
a fixed amount of maintenance capital expenditures in relation to equipment on the Drillship ("CAPEX");
|
(iii) |
a fixed amount of general and administrative expenses in relation to the Restricted Group and the Drillship ("G&A"),
|
(iv) |
a fixed amount of Taxes in relation to the Drillship, being, as at the date of the Amending and Restating Agreement, 9.2015 per cent. on all revenues received by the Drillship Owner under the Total Drilling Contract (including, without limitation, the Total Termination Payments); and
|
(v) |
a fixed amount of commission, equal to 1% of all revenues received for the Drillship (including without limitation the Total Termination Payments received under the Total Drilling Contract), payable to TMS Offshore Services Ltd. ("Commission"),
|
(b) |
Promptly upon receipt by the Facility Agent, it shall send the Budget to the Lenders and the Technical Advisor for approval and such Budget shall only constitute the Budget if approved by all the Lenders (following consultation with the Technical Advisor).
|
(c) |
The Facility Agent (acting on the instructions of any Lender) shall be entitled to request full information relating to the expenses of the Restricted Group to ensure they are properly and reasonably incurred and shall be entitled to review or to request an audit of all records.
|
(d) |
The Borrower shall use its reasonable endeavours to procure that, in respect of any Budget Month, the aggregate amount of the Permitted Operating Expenses, Tax and Commission and, in each case, the amount of each component thereof (as specified in paragraph (a) above) shall not exceed the budgeted amounts set out in the Budget for that Budget Month.
|
19.6 |
Information: miscellaneous
|
(a) |
promptly upon receipt, a copy of the monthly invoice payment confirmation from Total;
|
(b) |
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
(c) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings (including proceedings relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Restricted Group;
|
(d) |
promptly, such further information and/or documents regarding:
|
(i) |
the Drillship, the Earnings or the Insurances;
|
(ii) |
the Charged Property;
|
(iii) |
compliance of the Obligors with the terms of the Finance Documents;
|
(iv) |
the financial condition, business and operations of any member of the Restricted Group,
|
(e) |
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it;
|
(f) |
promptly upon becoming aware of them, the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions against it, any of its direct or indirect owners, any other member of the Restricted Group, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives, as well as information on what steps are being taken with regards to answer or oppose such; and
|
(g) |
promptly upon becoming aware that it, any of its direct or indirect owners, any other member of the Restricted Group, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives has become or is likely to become a Restricted Party.
|
19.7 |
Notification of default
|
(a) |
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b) |
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by any authorized signatory of the Borrower certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.8 |
"Know your customer" checks
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii) |
any change in the status of an Obligor after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Bank supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Bank (for itself) in order for that Servicing Bank to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20 |
FINANCIAL COVENANTS
|
20.1 |
General
|
20.2 |
Minimum credit balance on Retention Account
|
20.3 |
Financial testing
|
21 |
FINANCIAL COVENANTS AFTER THE INTERIM MATURITY DATE
|
21.1 |
General
|
21.2 |
Borrower's Minimum Cash and Cash Equivalents
|
(a) |
The Borrower shall ensure that Cash and Cash Equivalents (which, for the avoidance of doubt, shall include the USD 5,000,000 held on the Retention Account) of the Borrower (on a consolidated basis) will not at any time fall below USD 20,000,000.
|
(b) |
Notwithstanding paragraph (a) above, if a new Satisfactory Drilling Contract is secured for the Drillship, then the Cash and Cash Equivalents (which, for the avoidance of doubt, shall include the USD 5,000,000 held on the Retention Account) of the Borrower (on a consolidated basis) shall instead be not less than:
|
(i) |
USD 10,000,000 during the next one year of operation of the Drillship;
|
(ii) |
USD 15,000,000 during the second year of operation of the Drillship; and
|
(iii) |
USD 20,000,000 thereafter.
|
21.3 |
Borrower's Equity Ratio
|
21.4 |
Borrower's Current Ratio
|
21.5 |
Borrower's Debt Service Cover Ratio
|
21.6 |
Financial testing
|
22 |
GENERAL UNDERTAKINGS
|
22.1 |
General
|
22.2 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of, any Authorisation required under any law or regulation of any Relevant Jurisdiction or the state of the Approved Flag at any time of the Drillship to enable it to:
|
(i) |
perform its obligations under the Finance Documents to which it is a party;
|
(ii) |
perform, in the case of the Drillship Owner, its obligations under the Building Contract, the Total Drilling Contract and any other Charter to which it is a party;
|
(iii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of the Drillship or any Finance Document to which it is a party, the Building Contract, the Total Drilling Contract and/or any other Charter (as relevant); and
|
(iv) |
in the case of the Drillship Owner, own and operate the Drillship.
|
22.3 |
Compliance with laws
|
22.4 |
Transactions with Affiliates
|
22.5 |
Environmental compliance
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals; and
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law.
|
22.6 |
Environmental claims
|
(a) |
any Environmental Claim against any member of the Restricted Group which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Restricted Group.
|
22.7 |
Taxation
|
(a) |
Each of the Obligors shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:
|
(i) |
such payment is being contested in good faith;
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 19.2 (Financial statements); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
None of the Obligors may and, to the extent (in the opinion of the Facility Agent or the Majority Lenders) it has or reasonably could expect to have a Material Adverse Effect, no other member of the Restricted Group may change its residence for Tax purposes.
|
22.8 |
Overseas companies
|
22.9 |
Pari passu ranking
|
22.10 |
Ownership
|
(a) |
The Trust shall own 100 per cent. of all the shares and the ownership interests in the Borrower and in the Driliship Owner as described in Schedule 11 (Corporate Structure).
|
(b) |
Each Obligor shall procure that there shall be no change in the corporate structure of the Restricted Group described in Schedule 11 (Corporate Structure) except as expressly permitted by this Agreement without the prior written consent of all the Lenders (not to be unreasonably withheld).
|
22.11 |
New Guarantors
|
(a) |
Each Obligor shall procure that each Intra-Group Charterer shall be a company within the Restricted Group.
|
(b) |
Each Obligor shall procure that any Intra-Group Charterer not already party to this Agreement (other than a company within the Restricted Group being a counterparty to a Service Contract only) shall accede to this Agreement as an Additional Guarantor by signing an accession letter substantially in the form of Schedule 7 (Form of Accession Letter) hereto and/or taking such other step as the Facility Agent may reasonably require to provide its Guarantee and any such other Security as contemplated under this Agreement, and Shares Security shall be granted over the shares in that Intra-Group Charterer.
|
22.12 |
Title
|
(a) |
The Drillship Owner shall hold the title to, and own the entire beneficial interest in, the Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause 22.16 (Negative pledge).
|
(b) |
Each Obligor shall procure that the Drillship Owner and/or Intra-Group Charterer (as the case may be) shall hold the title to, and own the, entire beneficial interest in, the Earnings payable to each such party and its rights in the Insurances related to the Driliship, free of any Security and other interests and rights of every kind, except for those set out in Clause 22.16 (Negative pledge).
|
22.13 |
Employment of the Drillship
|
(a) |
All Charters for the Drillship shall be made on market terms and otherwise on arm's length terms.
|
(b) |
No novation or assignment of a Charter shall be permitted, save for
|
(i) |
novations or assignments in favour of the Secured Parties under the Finance Documents; or
|
(ii) |
novations or assignments in the ordinary course of business between the Drillship Owner and/or any other member of the Restricted Group (subject to Clause 22.11 (New Guarantors)) as the case may be; or
|
(iii) |
with the prior written consent of all the Lenders (not to be unreasonably withheld).
|
22.14 |
Change of business
|
(a) |
The Borrower shall procure that no substantial change is made to the general nature of the business of the Restricted Group from that carried on at the date of this Agreement without the prior written consent of all the Lenders.
|
(b) |
The companies within the Restricted Group (other than the Drillship Owner) shall not engage in any business other than the ownership (direct or indirect, as the case may be) of the Drillship Owner or (if relevant) the operation of the Drillship as an Intra-Group Charterer.
|
(c) |
The Drillship Owner shall not engage in any business other than the ownership and operation of the Drillship.
|
22.15 |
Merger
|
22.16 |
Negative pledge
|
(a) |
None of the companies within the Restricted Group will create or permit to subsist any Security over any of its assets.
|
(b) |
None of the companies within the Restricted Group will:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
The Trust shall not and shall cause not to create or permit to subsist any Security over the shares of the Obligors including the Borrower.
|
(d) |
Paragraphs (a), (b) and (c) above do not apply to any Permitted Security.
|
22.17 |
Disposals
|
(a) |
None of the companies within the Restricted Group shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of the Drillship, the Earnings or the Insurances or other asset being the subject of Security pursuant to the Finance Documents (including but not limited to its interest in the Trust) or the whole or a substantial part of its assets.
|
(b) |
Paragraph (a) above does not apply to:
|
(i) |
any sale, lease, transfer or other disposal made on market value and arm's length terms and in compliance with Clause 7 (Prepayment and cancellation) of this Agreement; or
|
(ii) |
any Charter, unless otherwise prohibited under this Agreement.
|
22.18 |
Financial Indebtedness
|
22.19 |
Subordination
|
(a) |
Each Obligor shall procure that any current or future intra-group claims (including any Intra-Group Loan) owed by any Obligor to an Obligor or another company within the Restricted Group and all sums owed by any Obligor to the Manager shall be unsecured and fully subordinated, in terms of payment and priority, to the rights of the Finance Parties under the Finance Documents on terms acceptable to the Facility Agent.
|
(b) |
No payments of principal or interest under any Intra-Group Loan shall be permitted until all outstanding amounts under the Finance Documents have been repaid in full.
|
(c) |
Additionally each Obligor shall procure that no transfer, novation or assignment of any Intra-Group Loan or other claim (whether for security or otherwise) shall take place at any time to any other member of the Restricted Group.
|
(d) |
Each Obligor shall procure that any current or future Intra-Group Loan shall be subject to Security under an Assignment of Intra-Group Loan.
|
22.20 |
Investments, loans and guarantees
|
(a) |
None of the companies within the Restricted Group shall make any investments or acquisitions, except for any capital expenditure or investments related to ordinary upgrade or maintenance work of the Drillship.
|
(b) |
None of the companies within the Restricted Group shall provide any guarantee or indemnity to or for the benefit of any person in respect of any obligation or any other person or enter into any document under which it assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents and except liabilities under guarantees given in the ordinary course of business for operational reasons; or
|
(c) |
None of the companies within the Restricted Group shall make any loan or provide any form of credit or financial assistance to any person.
|
22.21 |
Share capital
|
(a) |
purchase, cancel or redeem any of its share capital;
|
(b) |
increase or reduce its authorised share capital;
|
(c) |
issue any further shares except to its shareholder and provided such new shares are made subject to the terms of the Shares Security immediately upon the issue thereof in a manner satisfactory to the Security Agent and the terms of the Shares Security are complied with; or
|
(d) |
appoint any further director, officer or secretary (unless the provisions of the Shares Security are complied with).
|
22.22 |
Dividends
|
22.23 |
Unlawfulness, invalidity and ranking; Security imperilled
|
(a) |
make it unlawful for an Obligor to perform any of its obligations under the Finance Documents;
|
(b) |
cause any obligation of an Obligor under the Finance Documents to cease to be legal, valid, binding or enforceable;
|
(c) |
cause any Finance Document to cease to be in full force and effect;
|
(d) |
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e) |
imperil or jeopardise the Transaction Security.
|
22.24 |
Sanctions
|
(a) |
No Obligor shall (and the Borrower shall ensure that no other Relevant Person will) take any action, make any omission or use (directly or indirectly) any proceeds of the Loan, in a manner that:
|
(i) |
is a breach of Sanctions; and/or
|
(ii) |
causes (or will cause) a breach of Sanctions by any Relevant Person or Finance Party and/or
|
(iii) |
otherwise benefits any Restricted Party.
|
(b) |
No Obligor shall (and the Borrower shall ensure that no other Relevant Person will) take any action or make any omission that results, or is likely to result, in it or any Finance Party becoming a Restricted Party or otherwise a target of sanctions ("target of sanctions" signifying an entity or person ("Target") that is a target of laws, regulations or orders concerning any trade, economic or financial sanctions or embargoes by virtue of prohibitions and/or restrictions being imposed on any US person or other legal or natural person subject to the jurisdiction or authority of a US Sanctions Authority which prohibit or restrict them from them engaging in trade, business or other activities with such Target without all appropriate licences or exemptions issued by all applicable US Sanctions Authorities).
|
22.25 |
Chartering
|
(a) |
No member of the Restricted Group shall enter into arrangements which provide an obligation to charter in (or similar arrangement) any tonnage from companies outside the Restricted Group.
|
(b) |
Any charter-in arrangement permitted pursuant to paragraph (a) above shall be made on market terms and otherwise on arm's length terms.
|
22.26 |
Kexim Guarantee protection
|
(a) |
The Borrower shall procure that no Obligor shall act (or omit to act) in a manner that is inconsistent with or which could result in a breach of any requirement of the Kexim Guarantor under or in connection with the Kexim Guarantee and, in particular:
|
(i) |
each Obligor shall do all that is reasonably necessary and within its control to ensure that all requirements of the Kexim Guarantor under or in connection with the Kexim Guarantee are complied with;
|
(ii) |
each Obligor will cooperate with the Facility Agent and the Kexim Guarantee Agent on its reasonable request to take all steps necessary on the part of the Obligors (or any of them) to ensure that the Kexim Guarantee remains in full force and effect throughout the Security Period; and
|
(iii) |
each Obligor will use reasonable efforts to assist the Kexim Guarantee Agent in making any claim under the Kexim Guarantee.
|
(b) |
The Borrower shall promptly:
|
(i) |
notify the Facility Agent and the Kexim Guarantee Agent promptly after it becomes aware of the occurrence of any Default or Event or Default;
|
(ii) |
provide copies of all financial or other information reasonably required by the Facility Agent and/or the Kexim Guarantee Agent to satisfy any request for information by the Kexim Guarantor pursuant to the Kexim Guarantee. The Borrower agrees that it shall be reasonable for the Facility Agent and/or the Kexim Guarantee Agent to make a request under this Clause 22.26 (Kexim Guarantee protection) if it is required to do so as a condition of maintaining the Kexim Guarantee in full force and effect.
|
22.27 |
Further assurance
|
(a) |
Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right or any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent, any Receiver or the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed under this Clause 22.27 (Further assurance), that Obligor shall deliver to the Security Agent reasonable evidence that that Obligor's execution of such document has been duly authorised by it.
|
23 |
INSURANCE UNDERTAKINGS
|
23.1 |
General
|
(a) |
The undertakings in this Clause 23 (Insurance Undertakings) remain in force on and from the Delivery Date of the Drillship and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
|
(b) |
At any time where there is an Intra-Group Charterer within the Charter arrangements for the Drillship, the Drillship Owner shall be entitled to procure the performance of the undertakings in this Clause 23 (Insurance Undertakings) through the Intra-Group Charterer.
|
23.2 |
Maintenance of obligatory insurances
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(b) |
hull interest and/or freight interest;
|
(c) |
war risks (including blocking and trapping, acts of terrorism and piracy);
|
(d) |
protection and indemnity risks;
|
(e) |
risk of loss of Earnings; and
|
(f) |
such other insurances as the Lenders may reasonably require.
|
23.3 |
Terms of obligatory insurances
|
(a) |
The Drillship Owner shall effect such insurances:
|
(i) |
in dollars;
|
(ii) |
in the case of fire and usual marine risks and war risks, in an amount equal to at least 80 per cent. of the Insurance Value, while the remaining 20 per cent. may be taken out as hull interest and/ or freight interest insurance;
|
(iii) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(iv) |
in the case of protection and indemnity risks, in respect of the full tonnage of the Drillship;
|
(v) |
in the case of risk of loss of Earnings insurance, in an amount not less than the amount confirmed by the report from the insurance broker obtained in accordance with Clause 23.14(b) as being appropriate and adequate;
|
(vi) |
in each of the above cases on terms approved by the Facility Agent (acting on the authorisation of the Majority Lenders) and through such brokers, insurers, associations and clubs as the Facility Agent (acting on the authorisation of the Majority Lenders) from time to time may approve as appropriate for an internationally reputable major drilling contractor.
|
(b) |
For the purpose of this Clause 23 (Insurance Undertakings) the "Insurance Value" of the Drillship means at all times an amount which equal to or higher than the greater of:
|
(i) |
120 per cent. of the Loan; and
|
(ii) |
the Market Value of the Drillship.
|
23.4 |
Further protections for the Finance Parties
|
(a) |
subject always to paragraph (b), name the Drillship Owner and any Intra-Group Charterer as the main co assured unless the interest of every other co assured is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b) |
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(c) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(d) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(e) |
provide that the Security Agent may make proof of loss if the Drillship Owner or any Intra-Group Charterer fails to do so.
|
23.5 |
Renewal of obligatory insurances
|
(a) |
at least 14 days before the expiry of any obligatory insurance effected by it, renew that obligatory insurance; and
|
(b) |
procure that the brokers and/or the war risks and protection and indemnity associations (approved in accordance with 23.3(a)(vi)) with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
|
23.6 |
Copies of policies; letters of undertaking
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters of undertaking in a form required by the Facility Agent and including undertakings by the brokers that:
|
(i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 23.4 (Further protections for the Finance Parties);
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from the Drillship Owner concerned or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances;
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Drillship under such obligatory insurances any premiums due for other Drillships under the fleet or other amounts due to them for other insurances or any other person, they waive any lien on the policies for premium due for other Drillships under the fleet cover or any sums received under them which they might have in respect of such premiums or other amounts due for other Drillships under the fleet cover and they will not cancel such obligatory insurances on this Drillship by reason of non-payment of such premiums for other Drillships under the fleet or other amounts; and
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Drillship forthwith upon being so requested by the Facility Agent.
|
23.7 |
Copies of certificates of entry
|
(a) |
a copy of the certificate of entry for the Drillship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and
|
(c) |
a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Drillship if trading in the United States or any other relevant jurisdiction.
|
23.8 |
Deposit of original policies
|
23.9 |
Payment of premiums
|
23.10 |
Guarantees
|
23.11 |
Compliance with terms of insurances
|
(a) |
The Drillship Owner shall not do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance effected by it invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance effected by it repayable in whole or in part.
|
(b) |
Without limiting paragraph (a) above, the Drillship Owner shall:
|
(i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances effected by it, and (without limiting the obligation contained in paragraph (b)(iii) of Clause 23.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances effected by it are not made subject to any exclusions or qualifications to which the Facility Agent has not given its prior approval;
|
(ii) |
not make any changes relating to the Approved Classification or the Approved Classification Society or Manager or operator of the Drillship, without obtaining the underwriters' prior consent;
|
(iii) |
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Drillship is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation);
|
(iv) |
not employ the Drillship, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances effected by it, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify; and
|
(v) |
notify the Facility Agent in writing prior to the Drillship entering the territorial waters of the US, and arrange for such additional protection and indemnity cover as required by the Facility Agent.
|
(c) |
The Facility Agent may, at any time and for the account of the Borrower, obtain an insurance report from an independent marine insurance broker.
|
23.12 |
Alteration to terms of insurances
|
23.13 |
Settlement of claims
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance effected by it for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
23.14 |
Provision of information
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 23.15 (Mortgagee's interest and additional perils (pollution) insurances) or dealing with or considering any matters relating to any such insurances,
|
23.15 |
Mortgagee's interest and additional perils (pollution) insurances
|
(a) |
The Security Agent shall effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils (pollution) insurance, covering, in relation to mortgagee's interest marine insurance, not less than 120 per cent. of the Loan and, in relation to mortgagee's interest additional perils (pollution) insurance, not less than the amount of the Loan, and on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
|
(b) |
The Borrower shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
24 |
DRILLSHIP UNDERTAKINGS
|
24.1 |
General
|
24.2 |
Drillship's name and registration
|
(a) |
keep the Drillship registered in its name under the Approved Flag from time to time at its port of registration;
|
(b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
|
(c) |
not change the name of the Drillship,
|
(i) |
the prior consent of the Majority Lenders, and:
|
(ii) |
the Drillship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on the Drillship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage and on such other terms and in such other form as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require; and
|
(iii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require.
|
24.3 |
Repair and classification
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of any material overdue recommendations nor adverse notations.
|
24.4 |
Modifications
|
24.5 |
Removal and installation of parts
|
(a) |
Subject to paragraphs (b) and (c) below, the Drillship Owner shall not remove any material part of the Drillship, or any item of equipment installed on the Drillship unless the part or item so removed is forthwith replaced by a suitable part or item which:
|
(i) |
is in the same condition as or better condition than the part or item removed;
|
(ii) |
is free from any Security in favour of any person other than the Security Agent; and
|
(iii) |
becomes, on installation on the Drillship, the property of the Drillship Owner and subject to the security constituted by the Mortgage.
|
(b) |
The Drillship Owner may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Drillship.
|
(c) |
Paragraph (a) shall not apply in respect of removal or parts or equipment in connection with cold stacking of the Drillship to the extent such removal is approved by the Technical Adviser.
|
24.6 |
Surveys
|
24.7 |
Inspection
|
24.8 |
Prevention of and release from arrest
|
(a) |
The Driliship Owner shall promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Driliship, its Earnings or its Insurances;
|
(ii) |
all taxes, dues and other amounts charged in respect of the Drillship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of the Drillship, its Earnings or its Insurances.
|
(b) |
The Drillship Owner shall forthwith upon receiving notice of the arrest of the Drillship or of its detention in exercise or purported exercise of any lien or claim procure its release by providing bail or otherwise as the circumstances may require.
|
24.9 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Drillship, its ownership, employment, operation, management and registration,
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Drillship nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions.
|
24.10 |
ISPS Code
|
(a) |
procure the Drillship's and the company responsible for the Drillship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for the Drillship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
24.11 |
Trading in war zones
|
(a) |
consented to in advance and in writing by the underwriters of the Drillship's war risk insurances and fully covered by those insurances; or
|
(b) |
(to the extent not covered by those insurances) covered by additional insurance taken out by the Drillship Owner or any Intra-Group Charterer (as the case may be) at their expense, which additional insurance shall be deemed to be part of the insurances subject to the Transaction Security,
|
(i) |
the war risk insurers have been duly notified and have agreed to the Drillship entering the specified war zone; and
|
(ii) |
it has taken out all insurances necessary to cover all additional risk.
|
24.12 |
Provision of information
|
(a) |
the Drillship, its employment, position and engagements;
|
(b) |
any Earnings and payments and amounts due to any master and crew;
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Drillship and any payments made by it in respect of the Drillship;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, the Manager's compliance and the compliance of the Drillship with the ISM Code and the ISPS Code,
|
24.13 |
Notification of certain events
|
(a) |
any casualty to the Drillship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which the Drillship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of the Drillship for hire;
|
(d) |
any requirement or recommendation made in relation to the Drillship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e) |
any arrest or detention of the Drillship, any exercise or purported exercise of any lien on the Drillship or its Earnings or any requisition of the Drillship for hire;
|
(f) |
any intended dry docking of the Drillship;
|
(g) |
any Environmental Claim made against the Drillship Owner, the Borrower or in connection with the Drillship, or any Environmental Incident;
|
(h) |
any claim made by it under the Building Contract;
|
(i) |
any default (by any party) under a Charter;
|
(j) |
any claim for breach of the ISM Code or the ISPS Code being made against the Drillship Owner, the Manager or otherwise in connection with the Drillship; or
|
(k) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
24.14 |
Restrictions on chartering, appointment of manager etc.
|
(a) |
let the Drillship on demise charter for any period other than a Bareboat Charter;
|
(b) |
enter into any time or consecutive voyage charter in respect of the Drillship other than a Satisfactory Drilling Contract;
|
(c) |
appoint a manager of the Drillship other than the Manager;
|
(d) |
de activate or lay up on a "cold stack" basis the Drillship except as consented to in writing by all the Lenders; or
|
(e) |
put the Drillship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed USD 15,000,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on the Drillship or its Earnings for the cost of such work or for any other reason.
|
24.15 |
Termination of or amendment to agreements
|
(a) |
No Obligor shall, without the prior written consent of all the Lenders, waive any right under the Total Drilling Contract.
|
(b) |
No Obligor shall, without the prior written consent of the Majority Lenders, terminate or make any material amendments to the Building Contract or, if relevant, any Satisfactory Drilling Contract.
|
24.16 |
Notice of Mortgage
|
24.17 |
Sharing of Earnings
|
24.18 |
Marketing of the Drillship
|
(a) |
The Obligors shall continue to market the Drillship for appropriate employment and use commercially reasonable efforts to secure a Satisfactory Drilling Contract to ensure compliance with the requirements under Appendix 5 Article 11 of the Total Drilling Contract.
|
(b) |
The Borrower shall, on a monthly basis, provide the Facility Agent with documentation evidencing its marketing efforts required by paragraph (a) above as reasonably required by the Lenders.
|
24.19 |
Manager Change of Control
|
24.20 |
Notification of compliance
|
25 |
SECURITY COVER AFTER THE INTERIM MATURITY DATE
|
25.1 |
General
|
25.2 |
Valuations of Market Value
|
(a) |
The Market Value of the Drillship shall be determined at the Delivery Date of the Drillship and semi-annually thereafter, and at such other times as the Facility Agent may request.
|
(b) |
The valuations for the purpose of determining the Market Value of the Drillship shall be obtained at the cost of the Borrower.
|
(c) |
The Borrower shall promptly provide the Facility Agent and the Approved Brokers acting under this Clause 25 (Security Cover after the Interim Maturity Date) with any information which the Facility Agent or the Approved Brokers may request for the purposes of the valuations.
|
25.3 |
Minimum required security cover
|
(a) |
the Market Value of the Drillship; plus
|
(b) |
the net resalable value of additional non-cash Security previously provided under this Clause 25 (Security Cover after the Interim Maturity Date),
|
25.4 |
Provision of additional security; prepayment
|
(a) |
provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Facility Agent may approve or require; or
|
(b) |
prepay such part of the Loan required in order to eliminate the shortfall.
|
25.5 |
Value of additional security
|
25.6 |
Prepayment mechanism
|
26 |
ACCOUNTS AND APPLICATION OF EARNINGS AND OTHER AMOUNTS
|
26.1 |
Payment of Earnings
|
(a) |
Subject to Clause 26.2 (Receipt of amounts under the Put and Call Option Agreement), each Obligor shall ensure that, subject only to the provisions of the General Assignments and the Account Security (as applicable), all Earnings received by the Borrower, the Drillship Owner and any Intra-Group Charterer, including but not limited to the Total Termination Payments, are paid in to its Earnings Account.
|
(b) |
The Earnings Accounts shall be blocked and the Borrower shall ensure that the Account Bank shall be authorised, on the 6th of each Month (or on such dates as the Facility Agent may from time to time specify to the Account Bank), to apply the balance on each Earnings Account in the following order:
|
(i) |
first, in payment of fees, costs and expenses of the Account Bank, the Facility Agent and the Security Agent;
|
(ii) |
second, in payment to the Operating Account of:
|
(A) |
an amount equal to USD 10,000 per day for the next Month (the "Monthly OPEX Transfer"), to be applied by the Obligors as follows:
|
(1) |
firstly, for the payment of the Permitted Operating Expenses which are due and payable in the relevant Budget Month in accordance with the Budget approved by all the Lenders (following consultation with the Technical Advisor) pursuant to Clause 19.5 (Budget); and
|
(2) |
secondly, the balance between the Monthly OPEX Transfer and the Permitted Operating Expenses for the relevant Budget Month paid in accordance with (1) above (constituting, as at the Effective Date, USD 3,289 per day) to serve as an operating buffer sitting on the Operating Account; and
|
(B) |
an amount equal to the Tax and Commission as set out in the Budget for the relevant Budget Month to be applied by the Obligors in payment of Tax and Commission which are due and payable in accordance with the Budget approved by all the Lenders (following consultation with the Technical Advisor) pursuant to Clause 19.5 (Budget);
|
(iii) |
third, in payment to the Facility Agent for its distribution to the Lenders on each Repayment Date and on each due date for the payment of interest under this Agreement in accordance with Clause 35.2 (Distributions by the Facility Agent) of:
|
(A) |
the amount of the Repayment Instalment falling due on the next Repayment Date; and
|
(B) |
the aggregate amount of interest (including, for the avoidance of doubt, the Kexim Guarantee Premium) on the Loan which is payable on the next due date for payment of interest on the Loan; and
|
(iv) |
fourth, any remaining amounts standing to the credit of the relevant Earnings Account after application pursuant to the foregoing paragraphs shall:
|
(A) |
until the credit balance on the Retention Account (including the minimum balance of USD 5,000,000 required in accordance with Clause 20.2 (Minimum credit balance on Retention Account) is USD 20,000,000, be transferred to the Retention Account; and /or
|
(B) |
at any time when the credit balance on the Retention Account is USD 20,000,000 in accordance with paragraph (A) above, be deemed as excess cash flow ("Excess Cash Flow") and transferred to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
In the event that:
|
(i) |
the instalment of the Total Termination Payment due on 30 August 2016 is not received into the relevant Earnings Account by the first Repayment Date after the Effective Date; and
|
(ii) |
as a result, there are insufficient funds standing to the credit of the relevant Earnings Account for settling the sums due under sub-paragraph (iii) of paragraph (b) above,
|
(A) |
failure to receive such instalment from Total within the grace period set out in paragraph (b) of Clause 27.3 (Non-payment or other events under Total Drilling Contract) shall constitute an Event of Default; and
|
(B) |
such loan shall be fully subordinated to the Loan and shall not be repayable to the Purchaser unless and until the instalment from Total has been paid by Total and credited to the relevant Earnings Account.
|
26.2 |
Receipt of amounts under the Put and Call Option Agreement
|
26.3 |
Operating Account
|
(a) |
If at any time the credit balance of the amount on the Operating Account is insufficient to cover the Permitted Operating Expenses the Obligors may, by notice to the Facility Agent, request the prior consent of the Majority Lenders (following consultation with the Technical Advisor) to increase the Monthly OPEX Transfer for the next Month or such other period as specified by the Obligors.
|
(b) |
The Obligors shall ensure that:
|
(i) |
the Account Bank shall be authorised, on such dates as the Facility Agent may from time to time specify to the Account Bank, to send transcripts and evidence of the credit balance on the Operating Account to the Facility Agent; and
|
(ii) |
on a quarterly basis, starting on 6 December 2016 and on a quarterly basis thereafter (each such date being a "Test Date"), any credit on the Operating Account (including any part of the operating buffer) in excess of USD 1,000,000 shall, on the date falling one Month after the Test Date, be transferred by the Account Bank to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
The Security Agent may block the Operating Account upon the occurrence of a Default.
|
26.4 |
Retention account
|
(a) |
If the credit balance on the Earnings Account is insufficient in any calendar month for the servicing of the amounts set out in paragraph (b)(i) to paragraph (b)(iii) of Clause 26.1 (Payment of Earnings) above, the Facility Agent shall be entitled to make up all or part of the insufficiency by withdrawing the required amount from the Retention Account and applying it in accordance with paragraph (b)(i) to paragraph (b)(iii) of Clause 26.1 (Payment of Earnings) above, provided that the minimum balance of USD 5,000,000 shall always remain on the Retention Account in accordance with Clause 20.2 (Minimum credit balance on Retention Account), unless an Event of Default has occurred.
|
(b) |
Subject to paragraph (a) above, the Retention Account shall be blocked at all times.
|
26.5 |
Interest accrued on Retention Account
|
26.6 |
Release of accrued interest
|
26.7 |
Location of Accounts
|
(a) |
comply with any requirement of the Facility Agent as to the location or relocation of any Earnings Account, the Retention Account and the Operating Account (or either of them); and
|
(b) |
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts, the Retention Account and the Operating Account.
|
27 |
EVENTS OF DEFAULT
|
27.1 |
General
|
27.2 |
Non-payment
|
(a) |
its failure to pay is caused by an administrative or technical error in the banking system, appropriate evidence of which is provided to the Facility Agent; and
|
(b) |
payment is made within five Business Days of its due date.
|
27.3 |
Non-payment or other events under Total Drilling Contract
|
(a) |
Any party to the Total Drilling Contract rescinds or purports to rescind or repudiates or purports to repudiate the Total Drilling Contract or evidences an intention to rescind or repudiate the Total Drilling Contract.
|
(b) |
Total does not pay on the due date any amount of the Total Termination Payments payable under the Total Drilling Contract unless payment is made within 60 days of its due date.
|
(c) |
The Total Drilling Contract is amended or the Drillship Owner waives any of its rights under the Total Drilling Contract without the prior written consent of all the Lenders.
|
(d) |
Any disputes are commenced or threatened in relation to amounts due under the Total Drilling Contract.
|
(e) |
Any:
|
(i) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.11 (Insolvency proceedings) or creditors' process described in Clause 27.12 (Creditors' process); or
|
(ii) |
circumstance described in Clause 27.10 (Insolvency),
|
27.4 |
Non-compliance under Put and Call Option Agreement
|
27.5 |
Specific obligations
|
27.6 |
Other obligations
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 27.2 (Non-payment), Clause 27.3 (Non-payment or other events under Total Drilling Contract), Clause 27.4 (Non-compliance under Put and Call Option Agreement) and Clause 27.5 (Specific obligations)).
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 calendar days of the Facility Agent giving notice to the Borrower or (if earlier) the Borrower becoming aware of the failure to comply.
|
27.7 |
Kexim Guarantee
|
27.8 |
Misrepresentation
|
27.9 |
Cross default
|
(a) |
Any Financial Indebtedness of any member of the Restricted Group is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any member of the Restricted Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any member of the Restricted Group is cancelled or suspended by a creditor of any member of the Restricted Group as a result of an event of default (however described).
|
(d) |
Any creditor of any member of the Restricted Group becomes entitled to declare any Financial Indebtedness of any member of the Restricted Group due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause 27.9 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than USD 100,000 (or its equivalent in any other currency).
|
27.10 |
Insolvency
|
(a) |
An Obligor or any member of the Restricted Group is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of an Obligor or any member of the Restricted Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
27.11 |
Insolvency proceedings
|
(a) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Restricted Group other than a solvent liquidation or reorganisation of any member of the Restricted Group which is not an Obligor;
|
(b) |
a composition, compromise, assignment or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Restricted Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Restricted Group or any of its assets; or
|
(d) |
enforcement of any Security over any assets of any member of the Restricted Group,
|
27.12 |
Creditors' process
|
27.13 |
Loss of property
|
27.14 |
Unlawfulness, invalidity and ranking
|
(a) |
It is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of any Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c) |
Any Finance Document ceases to be in full force and effect or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
27.15 |
Security imperilled
|
27.16 |
Cessation of business
|
27.17 |
Repudiation and rescission of agreements
|
27.18 |
Authorisation and consents
|
27.19 |
Litigation
|
27.20 |
Material adverse change
|
27.21 |
Acceleration
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable; and/or
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders,
|
27.22 |
Enforcement of security
|
27.23 |
Instruction under the Put and Call Option Agreement
|
28 |
CHANGES TO THE LENDERS
|
28.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
28.2 |
Conditions of assignment or transfer
|
(a) |
The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i) |
to another Lender or an Affiliate of a Lender; or
|
(ii) |
made at a time when a Default is continuing.
|
(b) |
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 10 Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
(c) |
The consent of the Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to any amount payable under Clause 14.3 (Mandatory Cost).
|
(d) |
An assignment will only be effective on:
|
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and
|
(ii) |
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(e) |
A transfer will only be effective if the procedure set out in Clause 28.5 (Procedure for transfer) is complied with.
|
(f) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13 (Increased Costs),
|
(g) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
28.3 |
Assignment or transfer fee
|
28.4 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Obligor;
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction Security; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 28 (Changes to the Lenders); or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
28.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in 28.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations");
|
(ii) |
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(iv) |
the New Lender shall become a Party as a "Lender".
|
28.6 |
Procedure for assignment
|
(a) |
Subject to the conditions set out in Clause 28.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(b) |
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c) |
Subject to Clause 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 28.6 (Procedure for assignment) to assign their rights under the Finance Documents (but not to obtain a release by that Obligor from the obligations owed to that Obligor by any Lender nor to effect the assumption of equivalent obligations by a New Lender, in each case without the consent of the relevant Obligor or unless in accordance with Clause 28.5 (Procedure for transfer)), provided that they comply with the conditions set out in Clause 28.2 (Conditions of assignment or transfer).
|
28.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
28.8 |
Security over Lenders' rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
28.9 |
Pro rata interest settlement
|
(a) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(b) |
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(ii) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 28.9 (Pro rata interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts.
|
28.10 |
Transfer to the Kexim Guarantor
|
(a) |
If the Kexim Guarantor makes a payment under the Kexim Guarantee, then, to the extent that it is required to do so by the Kexim Guarantor under the Kexim Guarantee, a Kexim Guaranteed Lender receiving a payment pursuant to the Kexim Guarantee shall, at the cost of the Borrower and without any requirement for the consent of the Borrower, transfer to the Kexim Guarantor (in accordance with, and subject to, Clause 29 (Changes to the Obligors)) a part of its participation in the Loan equal to the amount paid to it by the Kexim Guarantor.
|
(b) |
A transfer pursuant to paragraph (a) above shall not limit the rights of the relevant Kexim Guaranteed Lender to recover any remaining part of its participation in a Loan or any other moneys owing to it under this Agreement or any other Finance Documents.
|
(c) |
If the Kexim Guarantor makes any payment to a Kexim Guaranteed Lender under the Kexim Guarantee:
|
(i) |
the obligations and liabilities of the Obligors (and of any of them) under this Agreement and each of the other Finance Documents shall not be reduced, discharged nor affected in any way;
|
(ii) |
the Kexim Guarantor shall be subrogated to the rights of that Kexim Guaranteed Lender against the Obligors under this Agreement and each of the other Finance Documents;
|
(iii) |
the Kexim Guarantor shall be entitled to the extent of such payment to exercise the rights of that Kexim Guaranteed Lender against the Obligors (and against any of them) under this Agreement and each of the other Finance Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued on it are fully reimbursed to the Kexim Guarantor; and
|
(iv) |
with respect to the obligations and liabilities of the Obligors owed to that Kexim Guaranteed Lender under the Finance Documents (or any of them), such obligations and liabilities shall additionally be owed to the Kexim Guarantor by way of subrogation of the rights of that Kexim Guaranteed Lender.
|
(d) |
The Obligors shall indemnify the Kexim Guarantor in respect of any costs or expenses (including legal fees) suffered or incurred by it in connection with any transfer referred to in paragraph (a) above.
|
29 |
CHANGES TO THE OBLIGORS
|
30 |
THE FACILITY AGENT AND THE MANDATED LEAD ARRANGERS
|
30.1 |
Appointment of the Facility Agent
|
(a) |
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each other Finance Party authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
30.2 |
Instructions
|
(a) |
The Facility Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 43 (Amendments and Waivers), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each relevant Party (other than the Facility Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 30.2 (Instructions), in the absence of instructions, the Facility Agent shall not be obliged to take any action (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.
|
(i) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
30.3 |
Duties of the Facility Agent
|
(a) |
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(c) |
Without prejudice to Clause 28.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d) |
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Mandated Lead Arrangers or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g) |
The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
30.4 |
Role of the Mandated Lead Arrangers
|
30.5 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent or the Mandated Lead Arrangers as a trustee or fiduciary of any other person.
|
(b) |
Neither the Facility Agent nor the Mandated Lead Arrangers shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
30.6 |
Application of receipts
|
30.7 |
Business with the Restricted Group
|
30.8 |
Rights and discretions
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 27.2 (Non-payment));
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arrangers are obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
The Facility Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Facility Agent by any Lender or the identity of any such Lender for the purpose of sub-paragraph (ii) of paragraph (a) of Clause 10.2 (Market disruption).
|
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
30.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
30.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
30.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 35.11 (Disruption to Payment Systems etc.)) or any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent or the Mandated Lead Arrangers to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.
|
30.12 |
Lenders' indemnity to the Facility Agent
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 35.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
30.13 |
Resignation of the Facility Agent
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d) |
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent), agree with the proposed successor Facility Agent amendments to this Clause 30 (The Facility Agent and the Mandated Lead Arrangers) and any other term of this Agreement (in each case in accordance with Clause 43 (Amendments and Waivers)) dealing with the rights or obligations of the Facility Agent consistent with then current market practice for the appointment and protection of corporate trustees and those amendments will bind the Parties.
|
(e) |
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
(f) |
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g) |
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to the Servicing Banks) and this Clause 30 (The Facility Agent and the Mandated Lead Arrangers) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(h) |
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (e) above shall be for the account of the Borrower.
|
(i) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
(j) |
The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:
|
(i) |
the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii) |
the information supplied by the Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii) |
the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
30.14 |
Confidentiality
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
30.15 |
Relationship with the other Finance Parties
|
(a) |
Subject to Clause 28.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost in accordance with Clause 14.3 (Mandatory Cost).
|
(c) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
|
(d) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number
|
30.16 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
30.17 |
Reference Banks
|
30.18 |
Facility Agent's management time
|
(a) |
Any amount payable to the Facility Agent under Clause 14.4 (Indemnity to the Servicing Banks), Clause 16 (Costs and Expenses) and Clause 30.12 (Lenders' indemnity to the Facility Agent) shall include the cost of utilising the Facility Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the Borrower and the other Finance Parties, and is in addition to any fee paid or payable to the Facility Agent under Clause 11 (Fees).
|
30.19 |
Deduction from amounts payable by the Facility Agent
|
30.20 |
Reliance and engagement letters
|
30.21 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
31 |
THE SECURITY AGENT
|
31.1 |
Trust
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 31 (The Security Agent) and the other provisions of the Finance Documents.
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
31.2 |
Parallel Debt (Covenant to pay the Security Agent)
|
(a) |
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b) |
The Parallel Debt of an Obligor:
|
(i) |
shall become due and payable at the same time as its Corresponding Debt;
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c) |
For purposes of this Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent:
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased, and the Corresponding Debt of an Obligor shall be:
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)) to the extent permitted by applicable law, shall be applied in accordance with Clause 35.5 (Application of receipts; partial payments).
|
(f) |
This Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
|
31.3 |
Enforcement through Security Agent only
|
31.4 |
Instructions
|
(a) |
The Security Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Facility Agent acting on the instructions of:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Facility Agent acting on the instructions of the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Facility Agent acting on the instructions of the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.
|
(iv) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A) |
Clause 31.27 (Deductions from receipts); and
|
(B) |
Clause 31.28 (Prospective liabilities).
|
(e) |
If giving effect to instructions given by the Facility Agent acting on the instructions of the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i) |
it has not received any instructions as to the exercise of that discretion; or
|
(ii) |
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
(g) |
The Security Agent may refrain from acting in accordance with any instructions of the Facility Agent acting on the instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 31.4 (Instructions), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
|
(i) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
31.5 |
Duties of the Security Agent
|
(a) |
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e) |
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
31.6 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Obligor.
|
(b) |
The Security Agent shall not be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account.
|
31.7 |
Business with the Restricted Group
|
31.8 |
Rights and discretions
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Facility Agent acting on the instructions of the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the
|
(f) |
The Security Agent may actin relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
31.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
31.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
31.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Security Agent if the Security Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Security Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security Agent, any Receiver or Delegate arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages.
|
31.12 |
Lenders' indemnity to the Security Agent
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
31.13 |
Resignation of the Security Agent
|
(a) |
The Security Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Security Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent.
|
(d) |
The retiring Security Agent shall make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Borrower shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all costs and expenses (including legal fees)
|
(e) |
The Security Agent's resignation notice shall only take effect upon:
|
(i) |
the appointment of a successor; and
|
(ii) |
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
(f) |
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 31.23 (Winding up of trust) and paragraph (d) above) but shall remain entitled to the benefit Clause 14.5 (Indemnity to the Security Agent) and this Clause 31 (The Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g) |
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrower.
|
(h) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
31.14 |
Confidentiality
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
31.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
31.16 |
Reliance and engagement letters
|
31.17 |
No responsibility to perfect Transaction Security
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Transaction Security.
|
31.18 |
Insurance by Security Agent
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Charged Property;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Facility Agent acting on the instructions of the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
31.19 |
Custodians and nominees
|
31.20 |
Delegation by the Security Agent
|
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b) |
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.
|
(c) |
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
31.21 |
Additional Security Agents
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
31.22 |
Acceptance of title
|
31.23 |
Winding up of trust
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Transaction Security have been fully and finally discharged; and
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Transaction Security; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause 31.13 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its rights under each Transaction Security.
|
31.24 |
Powers supplemental to Trustee Acts
|
31.25 |
Disapplication of Trustee Acts
|
31.26 |
Application of receipts
|
(a) |
Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are attributable to, Security Property (for the purposes of this Clause 31, the "Recoveries") shall be transferred to the Facility Agent for application in accordance with Clause 35.5 (Application of receipts; partial payments).
|
(b) |
Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
|
(i) |
under Clause 14.5 (Indemnity to the Security Agent) or any other indemnity in favour of the Security Agent under the Finance Documents to be indemnified out of the Charged Property; and
|
(ii) |
under any Finance Document to credit any moneys received or recovered by it to any suspense account.
|
(c) |
Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Agent.
|
(d) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause 31.26 (Application of receipts) in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
|
31.27 |
Deductions from receipts
|
(a) |
Before transferring any moneys to the Facility Agent under Clause 31.26 (Application of receipts), the Security Agent may, in its discretion:
|
(i) |
deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable;
|
(ii) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and
|
(iii) |
pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
(b) |
For the purposes of sub-paragraph (i) of paragraph (a) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be treated as due and payable, even if no demand has yet been served.
|
31.28 |
Prospective liabilities
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
31.29 |
Investment of proceeds
|
31.30 |
Currency conversion
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
31.31 |
Good discharge
|
31.32 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
32 |
KEXIM GUARANTEE AGENT
|
32.1 |
Appointment and duties of Kexim Guarantee Agent
|
(a) |
Each Kexim Guaranteed Lender appoints the Kexim Guarantee Agent to act as its agent under and in connection with the Kexim Guarantee and the Finance Documents.
|
(b) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Kexim Guarantee Agent under, or in connection with, the Kexim Guarantee and the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(c) |
The Kexim Guarantee Agent shall promptly forward to each Kexim Guaranteed Lender the original or a copy of any document which is delivered to the Kexim Guarantee Agent for that Kexim Guaranteed Lender by any other Party or by the Kexim Guarantor.
|
(d) |
Except where the Kexim Guarantee or a Finance Document specifically provides otherwise, the Kexim Guarantee Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to consult with the Kexim Guarantor (where necessary) in relation to waivers, consents or approvals under or pursuant to the Finance Documents, including but not limited to any amendment, modification or waiver which:
|
(i) |
varies the dates for, or increases the amount of, or changes the currency or the priority of, any payment of any amount under the Finance Documents;
|
(ii) |
amends, extends or waives any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) of Clause 4.2 (Further conditions precedent) of the Facilities Agreement; or
|
(iii) |
imposes a new obligation on the Kexim Guarantor, or increases an existing obligation of the Kexim Guarantor under the Kexim Guarantee or any other Finance Document,
|
(f) |
The Kexim Guarantee Agent's duties under the Kexim Guarantee and the Finance Documents are solely mechanical and administrative in nature and the Kexim Guarantee Agent shall have no duties or obligations as agent other than those expressly conferred on it by the Finance Documents.
|
(g) |
Nothing in this Agreement or any Finance Document shall permit or oblige any Kexim Guaranteed Lender or the Kexim Guarantee Agent to act (or omit to act) in a manner that is inconsistent with any requirement under or in connection with the Kexim Guarantee.
|
(h) |
In case of any conflict between the Finance Documents and the Kexim Guarantee, the Kexim Guarantee shall, as between the Kexim Guaranteed Lenders and the Kexim Guarantor, prevail, and to the extent of such conflict or inconsistency, none of the Kexim Guaranteed Lenders or the Kexim Guarantee Agent shall assert to the Kexim Guarantor, the terms of the relevant Finance Documents.
|
32.2 |
Application of certain Clauses
|
32.3 |
Kexim Guaranteed Lenders' representations
|
(a) |
no information provided by it in writing to the Kexim Guarantee Agent or to the Kexim Guarantor prior to the date of this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission;
|
(b) |
it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the Kexim Guarantee Agent being in breach of any of its obligations in its capacity as Kexim Guarantee Agent under the Kexim Guarantee or any of the Finance Documents, or result in the Kexim Guaranteed Lenders being in breach of any of their respective obligations as insured parties under the Kexim Guarantee, or which would otherwise prejudice the Kexim Guarantee Agent's ability to make a claim on behalf of the Kexim Guaranteed Lenders under the Kexim Guarantee;
|
(c) |
it has reviewed the Kexim Guarantee and is aware of its provisions; and
|
(d) |
the representations and warranties made by the Kexim Guarantee Agent on its behalf under the Kexim Guarantee are true and correct with respect to it in all respects.
|
32.4 |
Claims under Kexim Guarantee
|
(a) |
All communication between the Kexim Guaranteed Lenders and the Kexim Guarantor shall be carried out through the Kexim Guarantee Agent.
|
(b) |
Each Kexim Guaranteed Lender acknowledges and agrees that it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with the Kexim Guarantee except through the Kexim Guarantee Agent and that all of the rights of the Kexim Guaranteed Lenders under the Kexim Guarantee shall only be exercised by the Kexim Guarantee Agent.
|
32.5 |
Payments by the Kexim Guarantor
|
33 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
34.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 35 (Payment Mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 35.5 (Application of receipts; partial payments).
|
34.2 |
Redistribution of payments
|
34.3 |
Recovering Finance Party 's rights
|
34.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and
|
(b) |
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
34.5 |
Exceptions
|
(a) |
This Clause 34 (Sharing among the Finance Parties) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
35 |
PAYMENT MECHANICS
|
35.1 |
Payments to the Facility Agent
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
35.2 |
Distributions by the Facility Agent
|
35.3 |
Distributions to an Obligor
|
35.4 |
Clawback and pre-funding
|
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b) |
Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c) |
If the Facility Agent is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
|
(ii) |
the Borrower shall on demand refund it to the Facility Agent; and
|
(iii) |
the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
35.5 |
Application of receipts; partial payments
|
(a) |
Subject to paragraph (b) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the following order:
|
(i) |
first, in or towards payment of any amounts then due and payable under any of the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document (except for the Hedging Agreements) but which the Facility Agent, by notice to the Borrower and the other Finance Parties, states in its opinion will or may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them;
|
(iii) |
thirdly, in or towards payment of any sum due but unpaid under the Hedging Agreements; and
|
(iv) |
lastly, any surplus shall be paid to the Borrower or to any other person who appears to be entitled to it.
|
(b) |
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i) |
first, in or towards payment pro rata of any due but unpaid Kexim Guarantee Premium and any unpaid fees, costs and expenses of the Facility Agent and the Security Agent under the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in or towards satisfaction pro rata of all amounts to any Finance Party under Clause 14.2(b) which amounts have been already paid by that Finance Party to the Facility Agent, Security Agent, any Receiver or Delegate (as the case may be) pursuant to Clause 30.12 (Lenders' indemnity to the Facility Agent) or Clause 31.12 (Lenders' indemnity to the Security Agent);
|
(iii) |
thirdly, in or towards payment pro rata of any accrued interest or commission due to any Finance Party but unpaid under this Agreement;
|
(iv) |
fourthly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(v) |
fifthly , in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents (except for the Hedging Agreements); and
|
(vi) |
lastly, in or towards payment pro rata of any sum due but unpaid under the Hedging Agreements.
|
(c) |
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in sub-paragraphs (i) to (vi) of paragraph (b) above.
|
(d) |
Paragraphs (a), (b) and (c) above will override any appropriation made by an Obligor.
|
35.6 |
No set-off by Obligors
|
35.7 |
Business Days
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
35.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, dollar is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
35.9 |
Change of currency
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrower); and
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
35.10 |
Currency Conversion
|
(a) |
For the purpose of, or pending any payment to be made by any Servicing Bank under any Finance Document, such Servicing Bank may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
35.11 |
Disruption to Payment Systems etc.
|
(a) |
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b) |
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c) |
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d) |
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties and any Obligors as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 43 (Amendments and Waivers);
|
(e) |
the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 35.11 (Disruption to Payment Systems etc.); and
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
35.12 |
Hedging Agreement
|
36 |
SET-OFF
|
37 |
NOTICES
|
37.1 |
Communications in writing
|
37.2 |
Addresses
|
(a) |
in the case of the Borrower, that specified in Part A of Schedule 1 (the Borrower);
|
(b) |
in the case of each Lender or any other Obligor, that specified in Part B of Schedule 1 (the Guarantors) or Part C of Schedule 1 (the Lenders), respectively, or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c) |
in the case of the Facility Agent, that specified in Part D of Schedule 1 (The Servicing Banks); and
|
(d) |
in the case of the Security Agent, that specified in Part D of Schedule 1 (The Servicing Banks),
|
37.3 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i) |
if by way of fax, when received in legible form; or
|
(ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post with postage prepaid in an envelope addressed to it at that address,
|
(b) |
Any communication or document to be made or delivered to a Servicing Bank will be effective only when actually received by that Servicing Bank and then only if it is expressly marked for the attention of the department or officer of that Servicing Bank specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Bank shall specify for this purpose).
|
(c) |
All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
37.4 |
Notification of address and fax number
|
(a) |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 37.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.
|
37.5 |
Electronic communication
|
(a) |
It is recognised that one of the main methods of communication between the Facility Agent and the other Finance Parties will be by posting information and documentation onto an electronic website designated by the Facility Agent.
|
(b) |
Subject to sub-paragraph (a) above, any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means, to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(c) |
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
(d) |
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
(e) |
Each Party confirms that it is aware of (i) the fact that information by way of electronic exchange is transmitted unencrypted over a publicly accessible network, and (ii) the risks connected therewith (including but not limited to the risk that a "bank relation" (as such term is used in the context of Swiss banking secrecy legislation) could be identified).
|
37.6 |
English language
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
38 |
CALCULATIONS AND CERTIFICATES
|
38.1 |
Accounts
|
38.2 |
Certificates and determinations
|
38.3 |
Day count convention
|
38.4 |
Hedging Agreement
|
39 |
PARTIAL INVALIDITY
|
40 |
REMEDIES AND WAIVERS
|
41 |
SETTLEMENT OR DISCHARGE CONDITIONAL
|
42 |
IRREVOCABLE PAYMENT
|
43 |
AMENDMENTS AND WAIVERS
|
43.1 |
Required consents
|
(a) |
Subject to Clause 43.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders (observing the procedure set out in paragraph (e) of Clause 32.1 (Appointment and duties of Kexim Guarantee Agent)) and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b) |
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 43 (Amendments and Waivers).
|
43.2 |
Exceptions
|
(a) |
An amendment or waiver that has the effect of changing or which relates to:
|
(i) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
(ii) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(iii) |
a reduction in the Applicable Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(iv) |
an increase in or extension of any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
(v) |
a change to any Obligor;
|
(vi) |
any provision which expressly requires the consent of all the Lenders;
|
(vii) |
this Clause 43 (Amendments and Waivers);
|
(viii) |
any change to the preamble (Background), Clause 2 (The Facilities ), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8 (Interest), Clause 25 (Security Cover after the Interim Maturity Date), Clause 28 (Changes to the Lenders) or Clause 35.5 (Application of receipts; partial payments);
|
(ix) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document, save where the provisions of Clauses 22.17 (Disposals) and 7.5 (Mandatory prepayment on sale or Total Loss) are complied with; or
|
(x) |
the nature or scope of the guarantee and indemnity granted under Clause 17 (Guarantee and Indemnity);
|
(b) |
An amendment or waiver which relates to the rights or obligations of a Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or a Mandated Lead Arranger (each in their capacity as such) may not be effected without the consent of that Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or, as the case may be, the Mandated Lead Arranger.
|
44 |
CONFIDENTIALITY
|
44.1 |
Confidential Information
|
44.2 |
Disclosure of Confidential Information
|
(a) |
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b) |
to an(a) y person:
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 30.15 (Relationship with the other Finance Parties));
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii) |
to whom or for whose benefit that Finance Party chargers, assigns or otherwise creates Security (or may do so) pursuant to Clause 28.8 (Security over Lenders' rights);
|
(viii) |
who is a Party; or
|
(ix) |
with the consent of a Guarantor;
|
(A) |
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is a professional adviser and is subject
|
(B) |
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(b) |
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information by entering into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Finance Party;
|
(c) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors.
|
(d) |
Kexim may without the prior consent of any Obligor publish key information concerning the Kexim Guarantee, this Agreement and the transactions contemplated thereby, including but not limited to key information regarding the currency, amount and purpose of the Total Commitments, the Loan and the amount guaranteed by Kexim, the name of the Parties and their country of residence, the name of the Builder, the type of drillship, the date of this Agreement and the issuance of the Kexim Guarantee.
|
(e) |
Without prejudice to the above, the Borrower will procure that each Obligor (and its successors) hereby releases each Finance Party and its Affiliates, and each Finance Party hereby releases the other Finance Parties and their Affiliates from any confidentiality obligations and restrictions based on applicable Swiss bank secrecy rules with regard to any data and information relating to this Agreement, the other Finance Documents and the exercise of the respective rights or fulfilment of the respective obligations of each Finance Party.
|
44.3 |
Entire agreement
|
44.4 |
Inside information
|
44.5 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 44.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 44 (Confidentiality).
|
44.6 |
Continuing obligations
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceased to be a Finance Party.
|
45 |
COUNTERPARTS
|
46 |
BAIL-IN
|
46.1 |
Contractual recognition of bail-in
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
47 |
GOVERNING LAW
|
48 |
ENFORCEMENT
|
48.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause 48.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
48.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints Ince Process Agents Ltd of 2 Leman St, London El 8QN, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(iii) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
Name
|
Place of
Incorporation
|
Registration number
|
Address for Communication
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
56858
|
Drillship Alonissos Stock Trust, c/o Willmington Trust Company,
1100 N. Market Street, Wilmington, DE 19890-1603, United States
|
Name
|
Place of
Incorporation
|
Registration no.
|
Address for Communication
|
Drillship Alonissos Owners Inc. (the Drillship Owner)
|
Marshall Islands
|
56857
|
Drillship Alonissos
Stock Trust,
c/o Willmington Trust
Company,
1100 N. Market
Street,
Wilmington, DE
19890-1603,
United States
|
Name of Lender
|
Commitment
|
Address for Communication
|
THE ORIGINAL COMMERCIAL LENDERS
|
||
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTS 33, Attn. loannis Efstathopoulos
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: loannis Efstathopoulos / George Tzelepis, Ship Finance
E-mail: ioannis.efsathopoulos@credit-suisse.com / george.tzelepis@credit-suisse.com
Tel: +41 61 266 7494 / +41 61 266 7895 Fax: +41 61 266 7939
Administration matters:
SGTS 33, Attn. loannis Efstathopoulos
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: loannis Efstathopoulos, Ship Finance / Client services
E-mail: ioannis.efsathopoulos@credit-suisse.com
Tel: +41 61 266 7494
Fax: +41 61 266 7939
Rollover, fees and payments:
SGTS 33, Attn. Edina Aganovic
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: Edina Aganovic, Ship Finance
E-mail: edina.aganovic@credit-suisse.com
Tel: +41 61 266 74 90
Fax: +41 61 266 7939 |
DNB Bank ASA
|
USD 65,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum BjOrvika
M-14 S, 0021 Oslo, Norway Attention: Anne-Lise Iversen, Credit Middle
Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894 |
DVB Bank SE (Amsterdam Branch)
|
USD 65,000,000
|
Credit matters:
DVB Bank SE, Ballindamm 6, 20095 Hamburg, Germany
Attention: Jens Taubken, Offshore Finance E-mail: Jens.Taubken@dvbbank.com
Tel: +49 40 3080 0427
Fax: +49 40 3080 0412 Mobile: +49 174 184 0413 Administration matters:
DVB Bank SE, WTC Schiphol Tower F 6th
Floor, Schiphol Boulevard 255,
1118 BH Schiphol, The Netherlands
Attention: (mogen Hall/Sona Krijger-Dolbakyan, Transaction and Loan Services E-mail: TM.amsterdam-hamburg@dvbbank.com
Tel: +44 207 2564 446 / +31 88 399 7927Fax: +44 207 2564 352 / +31 88 299 8163
Rollover, fees and payments:
DVB Bank SE, Park House, 16-18 Finsbury Circus, London EC2M 7EB, United Kingdom
Attention: Adam Liley, Transaction and Loan Services
E-mail: tls.london@dvbbank.com
Tel: +44 207 2564 390
Fax: +44 207 2564 352 |
Norddeutsche
Landesbank Girozentrale
|
USD 15,000,000
|
Credit matters:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mrs. Corinna Welke, Shipping &
Aircraft Finance Dept.
E-mail: corinna.welke@web.de
Tel: +49 511 361 6848
Fax: +49 511 361 4785 Administration matters:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mr. Stefan Schulz, Shipping &
Aircraft Finance Dept.
E-mail: stefan.schulz@nordlb.de
Tel: +49 511 361 5584
Fax: +49 511 361 4785 Rollover, fees and payments:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mr. Andre Schulz, Shipping &
Aircraft Finance Dept.
E-mail: andre.schulz@nordlb.de
Tel: +49 511 361 5334
Fax: +49 511 361 4785 |
|
Total Commercial Facility loan Commitment: USD 175,000,000
|
THE ORIGINAL KEXIM GUARANTEED LENDERS
|
|||
DNB Bank ASA
|
USD 95,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjorvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit Middle
Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
|
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTE1 Markus Jakobsson
Uetlibergstr. 231
CH-8045 Zurich
Attention: Markus Jakobsson, Export Finance E-mail: markus.jakobsson@credit—suisse.com
Tel: +41 44 333 53 56 /+41 44 333 53 38
Fax: +41 44 333 21 04
Mobile: +41 79 576 1648
Administration matters:
WGCE5 Attn. Simon Svedhage
Uetlibergstr. 231
CH-8045 Zurich
Attention: Simon Svedhage, Export Finance,
Portfolio Administration
E-mail: portfolio.admin@credit-suisse.com
Tel: + 41 44 333 85 36
Fax: +41 44 333 21 04 Rollover, fees and payments:
WGCE6 Azemina Arzic
Uetlibergstr. 231
CH-8045 Zurich Attention: Azemina Arzic, Export Finance, Client Services
E-mail: cp-exfi.cso@credit-suisse.com
Tel: +41 44 333 63 93
Fax: +41 44 333 79 80 |
Total Kexim Guaranteed Facility Loan Commitment: USD 125,000,000
|
||
KEXIM
|
||
The Export—Import Bank of Korea
|
USD 175,000,000
|
BIFC 20th floor, Munhyeongeumyung-ro 40,
Nam-gu, Busan 608-828,
Korea
Attention: Mr. Seungheon Baek / Ms. Mibo Ahn, Maritime Project Finance Department E-mail: shbaek@koreaexim.go.kr / miboahn @ koreaexim.go.kr
Tel: +82-51-922-8838 / +82-51-922-8837 Fax: +82-51-922-8849
Mobile: +82-10-8842-3462 / +82-10-8872-2889
|
Total Kexim Direct Facility Loan Commitment: USD 175,000,000
|
Facility Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P O Box 1600 Sentrum Bj0rvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
Security Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjorvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
1 |
OBLIGORS
|
1.1 |
Articles of incorporation and Certificate of incorporation (or similar).
|
1.2 |
By-laws (or similar) (if applicable).
|
1.3 |
Updated Good Standing Certificate.
|
1.4 |
A copy of a resolution of the board of directors and shareholders (if applicable) of each Obligor:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.5 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party (notarised and apostilled if requested by the Facility Agent).
|
1.6 |
Passport photocopies for all Directors certified by the legal advisor of the Borrower.
|
1.7 |
A Directors/Secretary's Certificate, certifying and attaching the constitutional documents and authorisations referred to in paragraph 1.1-1.5 above and
|
(a) |
certifying that each copy document is correct, complete and in full force and effect as at a the date of this Agreement;
|
(b) |
certifying the identity of its directors, officers and shareholder(s); and
|
(c) |
confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
|
1.8 |
A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies.
|
2 |
FINANCE DOCUMENTS
|
2.1 |
This Agreement duly executed.
|
2.2 |
The Fee Letters duly executed.
|
2.3 |
The Hedging Agreements, if applicable.
|
2.4 |
The Assignment of Hedging Agreements, if applicable.
|
2.5 |
The Assignment of Intra-Group Loans, if applicable.
|
2.6 |
The Account Security duly executed, together with notices to and acknowledgements from the Account Bank.
|
2.7 |
The Shares Security duly executed, together with (if applicable) original share certificates, stock powers, undated directors' letters of resignation and irrevocable proxies or such other deliverables as required by the legal advisers to the Finance Parties.
|
3 |
BUILDING CONTRACT
|
3.1 |
Copies of the Building Contract and of all documents signed or issued by the Drillship Owner or the Builder (or both of them) under or in connection with such agreement.
|
3.2 |
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution by the Drillship Owner of the Building Contract and of all documents to be executed by such party.
|
4 |
TOTAL DRILLING CONTRACT
|
4.1 |
A copy of the Total Drilling Contract and of all documents signed or issued under or in connection with it.
|
4.2 |
A certificate of an authorised signatory of the Borrower that the Total Drilling Contract is in full force and existence and that there has been no amendments to it.
|
4.3 |
A summary of the Total Drilling Contract prepared by legal advisors to the Finance Parties.
|
4.4 |
Board resolutions and powers of attorneys evidencing the due authorisation and execution by the Drillship Owner of all documents to be executed by it under or in connection with the Total Drilling Contract.
|
5 |
OTHER DOCUMENTS AND EVIDENCE
|
5.1 |
Evidence that any process agent referred to in Clause 48.2 (Service of process), if not an Obligor, has accepted its appointment.
|
5.2 |
If relevant, confirmation that any withholding tax will be paid or application to tax authorities is or will be sent.
|
5.3 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or any related document or for the validity and enforceability of any Finance Document and/or related document.
|
5.4 |
The Original Financial Statements and a Compliance Certificate.
|
5.5 |
To the extent applicable, such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by the Finance Documents, including without limitation a written statement of each Obligor listing the natural persons
|
5.6 |
Evidence that any fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid.
|
6 |
KEXIM DOCUMENTS
|
6.1 |
A duly executed original of the Kexim Guarantee on terms satisfactory to the Kexim Guarantee Agent and all the Kexim Guaranteed Lenders.
|
6.2 |
Evidence that the first advance payment of the Kexim Guarantee Premium in relation to the Kexim Guarantee and any costs and expenses which are then due and payable to Kexim has been paid in accordance with the terms of the Kexim Guarantee.
|
6.3 |
A legal opinion of Kim & Chang, Korean legal advisers to the Kexim Guaranteed Lenders, in such form as agreed between that legal adviser and the Kexim Guaranteed Lenders.
|
7 |
LEGAL OPINIONS
|
7.1 |
A legal opinion of Wikborg Rein, legal advisers to the Finance Parties in Norway, in such form as agreed between that legal adviser and the Finance Parties.
|
7.2 |
The legal opinions to be delivered under paragraph 4 of Part B of this Schedule 2 (Conditions Precedent) being in agreed form.
|
7.3 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
|
1 |
OBLIGORS
|
1.1 |
If required, updated Good Standing Certificate for the Obligors.
|
2 |
FINANCE DOCUMENTS
|
2.1 |
The Mortgage duly executed, together with documentary evidence that the Mortgage has been duly registered as a valid first preferred ship mortgage in accordance with the laws of the jurisdiction of the Approved Flag.
|
2.2 |
The General Assignment duly executed and perfected.
|
2.3 |
The Assignment of Total Drilling Contract duly and perfected.
|
2.4 |
The Manager's Undertaking.
|
3 |
DRILLSHIP
|
3.1 |
Documentary evidence that the Drillship:
|
(a) |
has been unconditionally delivered by the Builder to, and accepted by, the Drillship Owner under the Building Contract, including but not limited to a copy of the protocol of delivery and acceptance for the Drillship with no material recommendations or adverse notations, and that the full purchase price payable (including the equity payable) and all other sums due to the Builder under the Building Contract, other than the sums to be financed pursuant to the Utilisation have been paid to the Builder;
|
(b) |
is definitively and permanently registered in the name of the Drillship Owner under the Approved Flag;
|
(c) |
is in the absolute and unencumbered ownership of the Drillship Owner save as contemplated by the Finance Documents;
|
(d) |
maintains the Approved Classification with the Approved Classification Society; and
|
(e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
3.2 |
Documents establishing that the Drillship will, as from the Utilisation Date, be managed by the Manager, together with copies of the Manager's Document of Compliance and of the Drillship's Safety Management Certificate (together with any other details of the applicable safety management system which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Drillship including without limitation an ISSC.
|
3.3 |
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
|
3.4 |
Evidence of the Market Value of the Drillship (based on valuations obtained no earlier than 30 days prior to the Delivery Date), confirming that the Loan is no more than 70 per cent. of the Market Value of the Drillship.
|
4 |
LEGAL OPINIONS
|
4.1 |
A legal opinion of Watson Farley & Williams, London, legal advisers to the Finance Parties in England, in such form as agreed between that legal adviser and the Finance Parties.
|
4.2 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Finance Parties in the Marshall Islands, in such form as agreed between that legal adviser and the Finance Parties.
|
4.3 |
A legal opinion of Watson Farley & Williams, Paris, legal advisers to the Finance Parties in France, in such form as agreed between that legal adviser and the Finance Parties.
|
4.4 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
|
From: |
Drillship Alonissos Shareholders Inc.
|
To: |
DNB Bank ASA (the Facility Agent)
|
Dated: |
[•]
|
1 |
We refer to the agreement. This is the Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2 |
We wish to utilise the Commercial Facility Loan, Kexim Direct Facility Loan and Kexim Guaranteed Facility Loan:
|
Proposed Utilisation Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
Amount (divided pro rata across the Facilities):
|
[•] or, if less, the Available Facility
|
Interest Period:
|
[•]
|
3 |
We confirm that each condition specified in clause 4.1 (initial conditions precedent) and clause 4.2 (further conditions precedent) as they relate to the advance to which this utilisation request refers of the Agreement is satisfied on the date of this Utilisation Request.
|
4 |
The proceeds of this advance should be credited to [account].
|
5 |
This Utilisation Request is irrevocable.
|
From: |
Drillship Alonissos Shareholders Inc.
|
To: |
DNB Bank ASA (the Facility Agent)
|
Dated: |
[•]
|
1 |
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2 |
We request that the next Interest Period for the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] be [0].
|
3 |
This Selection Notice is irrevocable.
|
To: |
DNB Bank ASA (the Facility Agent)
|
From: |
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
Dated: |
[•]
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2 |
We refer to Clause 28.5 (Procedure for transfer) of the Agreement:
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 28.5 (Procedure for transfer) of the Agreement, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
|
(b) |
The proposed Transfer Date is [•].
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 37.2 (Addresses) of the Agreement are set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of Existing Lenders) of the Agreement.
|
4 |
To the extent that this Transfer Certificate constitutes a novation under English law, then for the purpose of the Assignment of Total Drilling Contract governed by French law:
|
(a) |
the novation created by this Transfer Certificate constitutes a novation as described by article 1271 of the French Civil Code (Code Civil); and
|
(b) |
all security interests constituted under the Assignment of Total Drilling Contract creating security in rem (sOretes reelles) and securing the rights and obligations hereby transferred from the Existing Lender to the New Lender shall be reserved, in accordance with article 1278 of the French civil code (Code civil), to the benefit of such New Lender and shall remain in full force and effect.
|
5 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6 |
Subject to paragraph 4 above, this Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
7 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By: [•]
|
By: [•]
|
To: |
DNB Bank ASA (the Facility Agent) and Drillship Alonissos Shareholders Inc. as Borrower, for and on behalf of each Obligor
|
From: |
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
|
Dated: |
[•]
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 37.2 (Addresses) are set out in the Schedule.
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of Existing Lenders).
|
7 |
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 28.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), to the Borrower (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.
|
8 |
To the extent that this Assignment Agreement constitutes an assignment of rights and obligations under English law, then for the purpose the Assignment of Total Drilling Contract, the assignment created by this Assignment Agreement constitutes an assignment as described by article 1689 and seq. of the French Civil Code (Code civil). All security interests constituted under the Assignment of Total Drilling Contract will be perfectly assigned to the New Lender upon receipt by the Borrower of this Assignment Agreement. For the purpose of the Assignment of Total Drilling Contract, this paragraph 8 shall be governed by French law.
|
9 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
10 |
Subject to paragraph 8 above, this Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
11 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
1 |
Minimum credit balance on Retention Account, Clause 20.2
|
2 |
[Borrower's Minimum Cash and Cash Equivalents, Clause 21.2
|
3 |
Borrower's Equity Ratio, Clause 21.3
|
4 |
Borrower's Current Ratio, Clause 21.4
|
5 |
Borrower's Debt Service Cover Ratio, Clause 21.5
|
6 |
The ratio of the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments was [ ], while the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments shall not be less than 1.25:1.]
|
7 |
No Default
|
1 |
[•], a company duly incorporated under the laws of [•], agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 22.11 (New Guarantors) of the Agreement and provide such Security as required thereunder.
|
2 |
This Accession Letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accession Letter.
|
3 |
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
1 |
We refer to the Agreement. This is a [Prepayment][Cancellation] Notice. Terms defined in the Agreement have the same meaning in this [Prepayment][Cancellation] Notice unless given a different meaning in this [Prepayment][Cancellation] Notice.
|
2 |
[We wish to [prepay the whole Loan] [make a prepayment under the [Loan] [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan]]:
|
Proposed Prepayment Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
[•]
|
3 |
[We wish to cancel [the Total Commitments] [unutilised amounts available under the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] in an amount of [•] (in relation to any voluntary cancellation being an amount of minimum USD 10,000,000)].
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of the Utilisation Request))
|
Three Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of the Utilisation Request)) or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
|
|
Delivery of a duly completed Selection Notice (Clause 9.1 (Selection of Interest Periods))
|
Three Business Days before the expiry of the preceding Interest Period (Clause 9.1 (Selection of Interest Periods))
|
|
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation)
|
Three Business Days before the intended Utilisation Date or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
|
|
LIBOR is fixed
|
Quotation Day as of 11:00 am London time
|
BORROWER
|
|||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
/s/ Evgenia Th. Voulika
|
)
|
|
Witnesss' name:
|
Evgenia Th. Voulika
|
)
|
|
Attorney-at-Law
|
)
|
||
Witness' address:
|
52 Ag. Konstantinou Street – 151 24 Marousi
|
)
|
|
Athens, Greece
|
)
|
||
Tel.: +30 210 6140580
|
)
|
||
GUARANTOR and DRILLSHIP OWNER
|
|||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS OWNERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
/s/ Evgenia Th. Voulika
|
)
|
|
Witnesss' name:
|
Evgenia Th. Voulika
|
)
|
|
Attorney-at-Law
|
)
|
||
Witness' address:
|
52 Ag. Konstantinou Street – 151 24 Marousi
|
)
|
|
Athens, Greece
|
)
|
||
Tel.: +30 210 6140580
|
)
|
||
COMMERCIAL LENDERS
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
CREDIT SUISSE AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
KEXIM GUARANTEED LENDERS
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
CREDIT SUISSE AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
KEXIM
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
MANDATED LEAD ARRANGERS
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
HEDGE COUNTERPARTIES
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
KEXIM GUARANTEE AGENT
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
FACILITY AGENT
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SECURITY AGENT
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
Clause
|
Page
|
1 Definitions and Interpretation
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1
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2 Put Option
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4
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3 Call Option
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4
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4 Sale Mechanics
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4
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5 Payment Obligation Absolute
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5
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6 Assignment
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6
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7 Total Loss
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6
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8 Damage
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6
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9 Taxes
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7
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10 Calculations
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7
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11 Purchaser Acknowledgements
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7
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12 Communication
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7
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13 Rights of Third Parties
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9
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14 Indemnity
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9
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15 Miscellaneous
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10
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16 Representations and Warranties
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10
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17 Governing Law
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11
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Schedules
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Schedule 1 Form of Put Option Notice
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12
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Schedule 2 Form of Call Option Notice
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13
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Schedule 3 Invoice Schedule - (Total Termination Payments)
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14
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Schedule 4 Calculations of Option Price
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15
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Execution
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Execution Page
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16
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(1) |
DRILLSHIP ALONISSOS SHAREHOLDERS INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Republic of the Marshall Islands MH96960 (the "Borrower")
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(2) |
OCEAN RIG UDW INC., a corporation registered by way of continuation in the Cayman Islands with registered number MC-310396 whose registered office is at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands (the "Purchaser") and
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(3) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Republic of the Marshall Islands MH96960 as drillship owner and consenting party (the "Drillship Owner")
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(A) |
By the Facility Agreement, the Lenders agreed to make available to the Borrower loan facilities of up to USD 475,000,000 in relation to the acquisition by the Drillship Owner of the Drillship.
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(B) |
It is a condition precedent to the Finance Parties agreeing to enter into the Amendment and Restatement that the Purchaser enters into this Agreement.
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(C) |
The Parties have agreed (among other things) to enter into this Agreement (i) granting the Borrower the option to put the Drillship Owner and certain rights in relation to the Drillship Owner to the Purchaser (reserving the rights of the Security Agent in respect of the Total Termination Payments) at the time and for the amount set out herein and in accordance with the terms hereof and reserving the rights of the Security Agent in respect of the Total Termination Payments and (ii) granting the Purchaser the option to require the Borrower to sell the Drillship Owner and certain rights in relation to the Drillship Owner and the Drillship to the Purchaser at the time and for the amount set out herein and in accordance with the terms hereof.
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(a) |
in respect of the period prior to the Interim Maturity Date, the amount estimated by the Security Agent to be the outstanding principal amount of the Loan as at the Interim Maturity Date assuming (i) compliance by the Borrower and Drillship Owner with the Budget, (ii) interest rates remaining at the rates prevailing at the date of such calculation and (iii) receipt of all of the Total Termination Payments in accordance with the Invoice Schedule (and as reduced by the Reserve Reduction and the Excess Operating Cash Balance, in each case as initially calculated as at the date of the Option Notice and adjusted thereafter on the date falling one Business Day prior to the Option Date); and
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(b) |
in respect of any period on or after the Interim Maturity Date, the principal amount of the Loan outstanding as at the relevant such date (as reduced by the Reserve Reduction and the Excess Operating Cash Balance, in each case as initially calculated as at the date of the Option Notice and adjusted thereafter on the date falling one Business Day prior to the Option Date) together with any due but unpaid interest (including, for the avoidance of doubt, the Kexim Guarantee Premium) on the Loan and any other outstanding Finance Documents Costs.
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(a) |
following the date on which the Facility Agent has served, in accordance with the provisions of the Facilities Agreement, a Notice of Default on the Borrower in respect of the occurrence of an Event of Default under or in connection with the Finance Documents (including, without limitation, any default, suspension, cessation or expected termination of payments under the Total Drilling Contract) and while such Event of Default is continuing; or
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(b) |
on or after the Interim Maturity Date if an Event of Default has occurred and is continuing under the Finance Documents.
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1.2 |
Unless otherwise specified in this Agreement, or unless the context otherwise requires, all words and expressions defined in the Facility Agreement shall have the same meaning when used in this Agreement.
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(a) |
words denoting the plural number include the singular and vice versa;
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(b) |
words denoting persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or authorities and vice versa;
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(c) |
references to Recitals, Clauses and Schedules are references to recitals, clauses and schedules of this Agreement;
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(d) |
references to this Agreement include the Recitals;
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(e) |
the headings and contents page(s) are for the purposes of reference only, have no legal or other significance, and shall be ignored in the interpretation of this Agreement;
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(f) |
references to any document are, unless the context otherwise requires, references to that document as amended, supplemented, novated or replaced from time to time;
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(g) |
references to statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re-enacted;
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(h) |
references to each Party include its successors, transferees and assignees.
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2.1 |
The Borrower shall be entitled at any time which is a Put Option Time to serve the Put Option Notice on the Purchaser requiring the Purchaser on the Put Option Date to purchase all of the Borrower's right, title and interest in the Drillship Owner (but reserving for the Security Agent the right to receive the Total Termination Payments) for the Option Price and otherwise upon the terms and conditions of this Agreement.
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2.2 |
Following the service of the Put Option Notice, the Purchaser shall take (at its own cost) such action as is requested by the Borrower to effect the purchase of the rights referred to in Clause 2.1 above and to reserve the rights of the Security Agent to the Total Termination Payments.
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2.3 |
The Borrower may only serve the Put Option Notice with the express written approval of the Security Agent (and service without such approval shall be ineffective) and the Borrower shall serve the Put Option Notice upon the written instructions of the Security Agent.
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3.1 |
The Purchaser shall be entitled, at any time following the Interim Maturity Date and after the Security Agent has confirmed in writing the receipt by the Drillship Owner of all of the Total Termination Payments in accordance with the Invoice Schedule, to serve the Call Option Notice on the Borrower requiring the Borrower to sell to the Purchaser, on the Call Option Date, all of its right, title and interest in the Drillship Owner for the Option Price and otherwise upon the terms and conditions of this Agreement.
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3.2 |
Following the service of the Call Option Notice, the Purchaser shall take (at its own cost) such action as is requested by the Borrower to effect the purchase of the rights referred to in Clause 3.1 above.
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3.3 |
The Purchaser acknowledges that the performance of the Call Option is the sole and exclusive responsibility of the Borrower and neither the Security Agent nor any of the Lenders shall have any liability or responsibility whatsoever with respect thereto.
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4.1 |
Any sale of the shares in the Drillship Owner pursuant to Clause 2 (Put Option) or Clause 3 (Call Option) shall, in addition, be on the following terms:
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(b) |
on an "as is where is" basis with the Borrower giving the Purchaser no representations, warranties, agreements or guarantees whatsoever concerning or in connection with the Drillship Owner, the Drillship, the Insurances, the Drillship's condition, state or class or anything related to the Drillship or the Drillship Owner in either case whether express or implied, statutory or otherwise;
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(c) |
subject to any employment obligations or other commitments or liabilities arising prior to the Option Date in relation to the Drillship Owner and the Drillship (and on the basis that the Purchaser shall be responsible for assuming direct responsibility towards any relevant counterparty in relation to such obligations, commitments or liabilities); and
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(d) |
without warranty as to non —encumbrance or liens other than the Shares Security relating to the Drillship Owner.
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4.2 |
Following the service of an Option Notice, on the Put Option Date or, as the case may be, the Call Option Date:
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(a) |
the Purchaser shall pay in accordance with Clause 5.1(g) in freely available cleared funds an amount equal to the Option Price;
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(b) |
after receipt of such payment, the Borrower shall deliver to the Purchaser (i) original share certificates representing the total issued and outstanding capital stock of the Drillship Owner (the "Shares"), together with any related stock power or instrument of assignment and (ii) the other documents necessary and appropriate to effect a valid conveyance of title to the Shares, in each case duly executed by the Borrower and in respect of the Drillship Owner.
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(c) |
the Purchaser acknowledges that:
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(i) |
in the case where the Put Option is exercised prior to the Interim Maturity Date and following application of the Option Price towards the Secured Liabilities there are Secured Liabilities outstanding, the Finance Documents shall, save for the cancellation of the Pledge of Beneficial Interest and the Shares Security relating to the Drillship Owner in connection with paragraph (b) of this Clause 4.2, continue in full force and effect and the Borrower and the Drillship Owner shall on the Option Date (and as a condition precedent to the completion of the Option) grant such acknowledgement and confirmation with respect thereto as the Security Agent may require in relation to the Finance Documents; and
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(ii) |
in the case where the Put Option is exercised on or after the Interim Maturity Date or the Call Option is exercised the Finance Documents will be released upon completion of the Put Option or the Call Option and due payment of the Option Price in accordance with Clause 5.1(g).
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5.1 |
Following service of an Option Notice, the obligation of the Purchaser to pay the relevant Option Price in accordance with this Agreement shall be absolute irrespective of any contingency whatsoever including but not limited to:
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(a) |
any set-off, counterclaim, recoupment, defence or other right which any Party may have against any other Party;
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(b) |
any lack or invalidity of title or any other defect in title;
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(c) |
any failure or delay on the part of any Party, whether with or without fault on its part, in performing or complying with any of the terms, conditions or other provisions of this Agreement;
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(d) |
any insolvency, bankruptcy, reorganisation, arrangement, readjustment of debt, dissolution, administration, liquidation or similar proceedings by or against any Party or any other persons, or any change in the constitution of any Party or any other persons;
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(e) |
any invalidity or unenforceability or lack of due authorisation of or any defect in this Agreement, the Facility Agreement or any other agreement; or
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(f) |
any other cause which would but for this provision have the effect of terminating or in any way affecting the obligations of the Parties hereunder,
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(g) |
Any payment required to be made under this Agreement by the Purchaser shall be made to the Borrower's designated account with the Facility Agent, as determined by the Security Agent, and all payments hereunder shall be made net of all commissions and without any set-off or counterclaim whatsoever and free and clear of and without withholding or deduction for, or on account of, any present or future business, income, freight, stamp and other taxes, levies, imposts, duties, fees, charges, restrictions or conditions of any nature.
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(h) |
If the Purchaser is so required to make any withholding or deduction from any such payment, the sum due from the Purchaser in respect of such payment will be increased to the extent necessary to ensure that, after making such withholding or deduction, the Borrower receives a net sum equal to the amount which it would have received had no such withholding or deduction been required to be made. The Purchaser will promptly deliver to the Borrower any receipts, certificates or other proof evidencing the amounts, if any, paid or payable in respect of any such withholding or deduction as aforesaid.
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6.1 |
Subject to Clause 6.2, no Party may assign any of its rights or transfer any of its obligations under or in connection with this Agreement without the other Parties' prior written consent.
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6.2 |
The Borrower may, without the consent of the other Parties, assign in favour of the Security Agent by way of security for its obligations under the Finance Documents, all of its rights under or in connection with this Agreement. The Purchaser acknowledges, agrees and accepts that the rights of the Borrower under this Agreement (including the exercise of the Put Option) may be exercised by the Security Agent in place of the Borrower pursuant to any such assignment and the Purchaser shall accept any exercise of the Put Option by the Security Agent as a valid, binding and effective exercise of the Put Option.
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6.3 |
The Drillship Owner hereby irrevocably consents and acknowledges the matters contemplated in this Agreement and the terms of this Agreement.
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9.1 |
Any taxes payable, whether by the Borrower, or by the Purchaser in connection with the sale of the shares in the Drillship Owner pursuant to this Agreement shall be paid by the Purchaser. The Purchaser agrees to indemnify the Borrower in respect of all such taxes howsoever arising.
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9.2 |
The cost of registering the transfer of title of the shares in the Drillship Owner and any costs of deletion of the Mortgage over the Drillship and any other expenses in connection with the exercise of the Options (including legal and notarial fees and related expenses) shall be paid by the Purchaser.
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9.3 |
Clause 12.2 (Tax gross-up) of the Facility Agreement shall apply, with the necessary modifications, to this Agreement.
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10.1 |
Example calculations of the Option Price are set out in Schedule 4 (Calculations of Option Price).
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10.2 |
Such calculations are only applicable as at the date of this Agreement and shall not be binding or indicative thereafter for the purposes of the Facility Agent certifying the Option Price at any later time.
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(a) |
to be bound in full by the provisions in paragraph (c) of clause 26.1 of the Facility Agreement; and
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(b) |
that during the period of this Agreement events or circumstances may arise which would materially alter the Option Price. These circumstances include (without limitation) non-payment by Total or by any insurer; damage to the Drillship resulting in loss of income; costs of re-locating the Drillship for employment or other purposes; cost of modification to the Drillship for employment purposes or otherwise and increases in stacking costs and capital expense costs. The Purchaser accepts that no such event shall entitle the Purchaser to avoid or fail to honour its obligation to purchase the Shares in the Drillship Owner under this Agreement in accordance with its terms.
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(a) |
in the case of the Borrower:
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(b) |
in the case of the Drillship Owner:
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(c) |
in the case of the Purchaser:
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(a) |
Any communication or document made or delivered by one person to another under or in connection with this Agreement will only be effective:
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(b) |
All notices from or to any Party to this Agreement shall be sent with copy to the Security Agent.
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(c) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to the Drillship Owner.
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(d) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (c) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
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(a) |
Subject to paragraph (b) of Clause 12.3 (Delivery), any communication to be made between any two Parties under or in connection with this Agreement may be made by electronic mail
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(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
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(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
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(b) |
Any electronic communication made between those two Parties will be effective only when actually received in readable form.
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(c) |
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
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(d) |
Each Party confirms that it is aware of (i) the fact that information by way of electronic exchange is transmitted unencrypted over a publicly accessible network, and (ii) the risks connected therewith (including but not limited to the risk that a "bank relation" (as such term is used in the context of Swiss banking secrecy legislation) could be identified).
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(a) |
Any notice given under or in connection with this Agreement must be in English.
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(b) |
All other documents provided under or in connection with this Agreement must be:
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(i) |
in English; or
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(ii) |
if not in English, accompanied by a certified English translation prepared by a translator approved by the Security Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
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(a) |
it is a corporation, duly registered by way of continuation and validly existing under the laws of its jurisdiction of registration and has the power to own its assets and to carry on its business as it is being conducted;
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(b) |
the obligations expressed to be assumed by it in this Agreement are legal, valid, binding and enforceable obligations subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to the Facility Agreement;
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(c) |
the entry into and performance by it of, and the transactions contemplated by, this Agreement do not conflict with:
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(d) |
it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of this Agreement and the transactions contemplated hereunder;
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(i) |
to enable it to lawfully enter into, exercise its rights and comply with its obligations under this Agreement; and
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(ii) |
to make this Agreement admissible in evidence in its jurisdiction of registration, have been obtained or effected and are in full force and effect;
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(f) |
it is not required under the laws of its jurisdiction of registration or residences to make any deduction or withholding for or on account of tax from any payment which it may be obliged to make under or pursuant to this Agreement;
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(g) |
under the laws of its jurisdiction of registration or place of residence, it is not necessary that this Agreement be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to this Agreement or the transactions contemplated hereby;
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(h) |
no litigation, arbitration or administrative proceeding of or before any court, arbitral body or agency have (to the best of its knowledge) been started or threatened which, if adversely determined, might reasonably be expected to have a material adverse effect on the business, assets, financial condition or creditworthiness of it;
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(i) |
neither it nor any of its assets has any right to immunity from set-off, legal proceedings, attachment prior to judgment, other attachment or execution of judgment on the grounds of sovereign immunity or otherwise; and
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(j) |
it is not insolvent or in liquidation or administration or subject to any other formal or informal insolvency procedure, and no receiver, administrative receiver, administrator, liquidator, trustee or analogous officer has been appointed in respect of it or all or any part of its assets.
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17.1 |
This Agreement and any non-contractual obligations arising from or in connection with it are governed by, and shall be construed in accordance with, the laws of England.
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17.2 |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
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17.3 |
The Parties accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
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17.4 |
Without prejudice to any other mode of service allowed under any relevant law, the Purchaser:
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(a) |
irrevocably appoints Ince Process Agents Ltd of 2 Leman St, London El 8QN, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
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(b) |
agrees that failure by a process agent to notify the relevant party of the process will not invalidate the proceedings concerned.
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Invoicing period
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|||||||||||||||
Invoice date
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From
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To
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Invoiced days
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Rate
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Invoiced Amount
|
Due Date
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|||||||||
20/07/16
|
26/06/16
|
25/07/16
|
30.00
|
$
|
557,762.35
|
$
|
16,732,870.50
|
30/08/16
|
|||||||
19/08/16
|
26/07/16
|
25/08/16
|
31.00
|
$
|
557,762.35
|
$
|
17,290,632.85
|
30/09/16
|
|||||||
20/09/16
|
26/08/16
|
25/09/16
|
31.00
|
$
|
557,762.35
|
$
|
17,290,632.85
|
30/10/16
|
|||||||
20/10/16
|
26/09/16
|
25/10/16
|
30.00
|
$
|
557,762.35
|
$
|
16,732,870.50
|
30/11/16
|
|||||||
18/11/16
|
26/10/16
|
25/11/16
|
31.00
|
$
|
557,762.35
|
$
|
17,290,632.85
|
30/12/16
|
|||||||
20/12/16
|
26/11/16
|
25/12/16
|
30.00
|
$
|
557,762.35
|
$
|
16,732,870.50
|
30/01/17
|
|||||||
20/01/17
|
26/12/16
|
25/01/17
|
31.00
|
$
|
557,762.35
|
$
|
17,290,632.85
|
02/03/17
|
|||||||
20/02/17
|
26/01/17
|
25/02/17
|
31.00
|
$
|
557,762.35
|
$
|
17,290,632.85
|
30/03/17
|
|||||||
20/03/17
|
26/02/17
|
25/03/17
|
28.00
|
$
|
557,762.35
|
$
|
15,617,345.80
|
30/04/17
|
|||||||
20/04/17
|
26/03/17
|
25/04/17
|
31.00
|
$
|
557,762.35
|
$
|
17,290,632.85
|
30/05/17
|
|||||||
19/05/17
|
26/04/17
|
25/05/17
|
30.00
|
$
|
557,762.35
|
$
|
16,732,870.50
|
30/06/17
|
|||||||
20/06/17
|
26/05/17
|
25/06/17
|
31.00
|
$
|
557,762.35
|
$
|
17,290,632.85
|
30/07/17
|
|||||||
20/07/17
|
26/06/17
|
25/07/17
|
30.00
|
$
|
557,762.35
|
$
|
16,732,870.50
|
30/08/17
|
|||||||
18/08/17
|
26/07/17
|
11/08/17
|
17.00
|
$
|
557,762.35
|
$
|
9,481,959.95
|
30/09/17
|
|||||||
18/08/17
|
12/08/17
|
25/08/17
|
14.00
|
$
|
440,338.70
|
$
|
6,164,741.80
|
30/09/17
|
|||||||
20/09/17
|
26/08/17
|
25/09/17
|
31.00
|
$
|
440,338.70
|
$
|
13,650,499.70
|
30/10/17
|
|||||||
20/10/17
|
26/09/17
|
25/10/17
|
30.00
|
$
|
440,338.70
|
$
|
13,210,161.00
|
30/11/17
|
|||||||
20/11/17
|
26/10/17
|
25/11/17
|
31.00
|
$
|
440,338.70
|
$
|
13,650,499.70
|
30/12/17
|
|||||||
20/12/17
|
26/11/17
|
25/12/17
|
30.00
|
$
|
440,338.70
|
$
|
13,210,161.00
|
30/01/18
|
|||||||
19/01/18
|
26/12/17
|
25/01/18
|
31.00
|
$
|
440,338.70
|
$
|
13,650,499.70
|
02/03/18
|
|||||||
20/02/18
|
26/01/18
|
11/02/18
|
17.00
|
$
|
440,338.70
|
$
|
7,485,757.90
|
30/03/18
|
|||||||
20/02/18
|
12/02/18
|
25/02/18
|
14.00
|
$
|
293,559.13
|
$
|
4,109,827.82
|
30/03/18
|
|||||||
20/03/18
|
26/02/18
|
25/03/18
|
28.00
|
$
|
293,559.13
|
$
|
8,219,655.64
|
30/04/18
|
|||||||
20/04/18
|
26/03/18
|
27/04/18
|
33.00
|
$
|
293,559.13
|
$
|
9,687,451.29
|
02/06/18
|
BORROWER
|
||
EXECUTED AS A DEED
by DRILLSHIP ALONISSOS SHAREHOLDERS INC. acting by Dimitrios Glynos expressly authorised in accordance with the laws of the Marshall Islands in the presence of:
Witness' signature: /s/ Evgenia Th. Voulika
Witness' name: Evgenia Th. Voulika
Witness' address: Attorney-at-Law
52 Ag. Konstantinou Street 151 24 Marousi Athens, Greece Tel: +30 210 6140580 |
)
) ) ) ) ) ) ) ) ) ) ) ) ) |
/s/ Dimitrios Glynos
|
PURCHASER
|
||
EXECUTED AS A DEED
by OCEAN RIG UDW INC. acting by Dimitrios Glynos expressly authorised in accordance with the laws of the Cayman Islands in the presence of:
Witness' signature: /s/ Evgenia Th. Voulika
Witness' name: Evgenia Th. Voulika
Witness' address: Attorney-at-Law
52 Ag. Konstantinou Street 151 24 Marousi Athens, Greece Tel: +30 210 6140580 |
)
) ) ) ) ) ) ) ) ) ) ) ) ) |
/s/ Dimitrios Glynos
|
DRILLSHIP OWNER
|
||
EXECUTED AS A DEED
by DRILLSHIP ALONISSOS OWNERS INC. acting by Dimitrios Glynos expressly authorised in accordance with the laws of the Marshall Islands in the presence of:
Witness' signature: /s/ Evgenia Th. Voulika
Witness' name: Evgenia Th. Voulika
Witness' address: Attorney-at-Law
52 Ag. Konstantinou Street 151 24 Marousi Athens, Greece Tel: +30 210 6140580 |
)
) ) ) ) ) ) ) ) ) ) ) ) ) |
/s/ Dimitrios Glynos
|
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
|||
By:
|
/s/ Dr. Adriano Cefai
|
||
Name: Dr. Adriano Cefai
|
|||
Title: President
|
|||
OCEAN RIG UDW INC.
|
|||
By:
|
/s/ John Liveris
|
||
Name: John Liveris
|
|||
Title: Director
|
|||
WILMINGTON TRUST COMPANY
|
|||
By:
|
/s/ Scott Wetzel | ||
Name: Scott Wetzel
|
|||
Title: Financial Services Officer
|
|||
1. |
Name. The name of the statutory trust being formed is Drillship Alonissos Stock Trust.
|
2. |
Trustee. The name and business address of the trustee of the Trust with its principal place of business in the State of Delaware is as follows:
|
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as trustee of the Trust
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
Dated:
|
|||
DRILLSHIP ALONISSOS STOCK TRUST
|
|||
By:
|
Wilmington Trust Company, not in its individual capacity but solely as Trustee
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Trustee
|
||
By __________________, as Authenticating Agent
|
||
Name:
|
Dated: _______________
|
[OCEAN RIG UDW][DRILLSHIP ALONISSOS SHAREHOLDERS] INC.
|
|||
By:
|
||||
Name:
|
||||
Title:
|
||||
Dated:
|
|||
DRILLSHIP ALONISSOS STOCK TRUST
|
|||
By:
|
Wilmington Trust Company, not in its individual capacity but solely as Trustee
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
Dated: ________________________
|
OCEAN RIG UDW INC.
|
||
By:
|
/s/ John Liveris
|
||
Name: John Liveris
|
|||
Title: Director
|
|||
Dated:
|
|||
DRILLSHIP ALONISSOS STOCK TRUST
|
|||
By:
|
Wilmington Trust Company, not in its individual capacity but solely as Trustee
|
||
By:
|
|||
Name:
|
|||
Title:
|
|||
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Trustee
|
||
By __________________, as Authenticating Agent
|
||
Name:
|
Dated: ________________________
|
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
||
By:
|
/s/ Dr. Adriano Cefai
|
||
Name: Dr. Adriano Cefai
|
|||
Title: President
|
|||
(1) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated in the Republic of The Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "Owner")
|
(2) |
DNB BANK ASA, acting in its capacity as Security Agent and trustee through its office at Dronning Eufemias gate 30, 0191 Oslo, Norway in its capacity as Security Agent and trustee (the "Mortgagee", which expression includes its successors and assigns)
|
(A) |
By a term loan facilities agreement dated 13 February 2015 made between, among others, (i) Drillship Alonissos Shareholders Inc. as borrower (the "Borrower"), (ii) Ocean Rig UDW Inc. and the Owner as guarantors, (iii) the Lenders, (iv) the Facility Agent and (v) the Security Agent it was agreed that the Lenders would make available to the Borrower senior secured credit facilities of US$475,000,000 (the "Original Facilities Agreement"), of which a principal amount of US$413,368,546.10 remains outstanding at the date hereof.
|
(B) |
By a master agreement dated 13 February 2015 and made between (i) the Borrower and (ii) DNB Bank ASA as Hedge Counterparty (the "Hedge Counterparty"), the Hedge Counterparty may enter into transactions with the Borrower from time to time to regulate and manage the Borrower's interest rate exposure under the Facilities Agreement (the "Hedging Agreement").
|
(C) |
As security for, amongst other things, the payment of all sums due and to become due under the Original Facilities Agreement and the Hedging Agreement, the Owner executed and delivered the Mortgage in favour of the Mortgagee, which Mortgage was recorded on March 5, 2015 at 03:01 P.M., E.E.T. at Piraeus, Greece, (March 5, 2015 at 08:01 A.M., E.S.T.) in the Central Office of the Maritime Administrator in Book PM 26 at page 321.
|
(D) |
By an amending and restating agreement dated 31 August 2016 supplemental to the Original Facilities Agreement (the "Amending and Restating Agreement") and made between, among others, (i) the Borrower, (ii) the Owner as guarantor, (iii) Ocean Rig UDW Inc. as primary purchaser and existing guarantor, (iv) the Lenders, (v) the Facility Agent and (vi) the Mortgagee, the parties thereto agreed to certain amendments to the Original Facilities Agreement. The form of the Amending and Restating Agreement attaching the amended and restated form of the Original Facilities Agreement is annexed to this Addendum marked "A" and forms an integral part hereof.
|
(E) |
Pursuant to Clause 17 of the Original Facilities Agreement as amended by the Amending and Restating Agreement, the Owner guaranteed all obligations and liabilities of the Borrower therein and under the Hedging Agreement and the other Finance Documents to which the Borrower is a party.
|
(F) |
The Owner, in order to secure the payment of all sums now or hereafter due by it to the Mortgagee in respect of the Original Facilities Agreement as amended by the Amending and Restating Agreement, has duly authorised the execution and delivery of this Addendum under and pursuant to Chapter 3 of the Republic of The Marshall Islands Maritime Act 1990 as amended.
|
1 |
In this Addendum, unless the context requires otherwise, words and expressions defined in the Mortgage shall bear the same meanings when used in this Addendum.
|
2 |
In consideration of the premises and other good and valuable consideration, the Owner grants, conveys, mortgages, pledges, confirms, assigns, transfers and sets over the whole of the Drillship to the Mortgagee as a continuing security for the due and punctual payment and discharge by the Owner of the Secured Liabilities under Clause (Covenant to pay) of the Mortgage and the observation and performance by the Owner of all its obligations under Clause (Covenant to perform) of the Mortgage.
|
3 |
The Mortgage shall be and it is hereby amended as follows:
|
(a) |
so that all references therein to the "Facilities Agreement" shall be to the Original Facilities Agreement as amended and/or supplemented by the Amending and Restating Agreement;
|
(b) |
so that all references therein to the "Finance Documents" shall be to the Finance Documents as amended and/or supplemented by the Amending and Restating Agreement.
|
(c) |
by construing all reference therein to "this Mortgage", "hereunder", "hereof" or "herein" or words of like import to mean and refer to the Mortgage as amended hereby; and
|
(d) |
by deleting clause 12.1 thereof in its entirety and replacing with the following clause 12.1 (Incorporation of specific provisions):
|
4 |
Except for the amendments contained in Clause 2 above, the Mortgage shall remain in full force and effect in accordance with its terms and shall continue to stand as security for the obligations thereby secured as amended by this Addendum.
|
5 |
For the purpose of recording this Addendum as required by Chapter 3 of the Republic of the Marshall Islands Maritime Act 1990 as amended, the total amount of the direct and contingent obligations secured by the Mortgage as amended by this Addendum is reduced to US$508,368,546.10 comprised of (a) US$413,368,546.10 in respect of the Original Facilities Agreement as amended and restated by the Amending and Restating Agreement, and (b) US$95,000,000 in respect of the Hedging Agreement, together with interest, fees, commissions and performance of mortgage covenants. The date of the maturity remains on demand and there is no separate discharge amount.
|
6 |
This Addendum shall be governed by, and construed in accordance with, Marshall Islands law.
|
CITY OF NEW YORK
|
)
|
) S.S.
|
|
STATE OF NEW YORK
|
)
|
/s/ Christopher J. Chido
|
||
Notary Public
|
||
Christopher J. Chido
Notary Public, State of New York No. 02CH6293240 Qualified in New York County Certificate Filed in New York County Commission Expires 12/09/2017 |
||
CITY OF NEW YORK
|
)
|
) S.S.
|
|
STATE OF NEW YORK
|
)
|
/s/ Christopher J. Chido
|
||
Notary Public
|
||
Christopher J. Chido
Notary Public, State of New York No. 02CH6293240 Qualified in New York County Certificate Filed in New York County Commission Expires 12/09/2017 |
Clause
|
Page
|
|
1
|
Detinitions and Interpretation
|
2
|
2
|
Agreement of the Finance Parties
|
3
|
3
|
Conditions Precedent
|
4
|
4
|
Reservation of Rights
|
5
|
5
|
Representations
|
5
|
6
|
Amendment and Restatement of Facility Agreement and other Finance Documents
|
5
|
7
|
Further Assurance
|
6
|
8
|
Costs and Expenses
|
6
|
9
|
Notices
|
6
|
10
|
Counterparts
|
6
|
11
|
Governing Law
|
6
|
12
|
Enforcement
|
6
|
Schedules
|
||
Schedule 1
|
Conditions Precedent
|
8
|
Execution
|
Execution Pages
|
12
|
(1) |
DRILLSHIP ALONISSOS SHAREHOLDERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56858 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
|
(2) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56857 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as drillship owner and guarantor (the "Drillship Owner");
|
(3) |
OCEAN RIG UDW INC., a corporation registered in the Cayman Islands with registered number MC-310396 whose registered office is at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands as exiting guarantor and purchaser (the "Purchaser");
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) of the Amended and Restated Facility Agreement as original commercial lenders (the "Original Commercial Lenders");
|
(5) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) of the Amended and Restated Facility Agreement as original lenders under the Kexim Guaranteed Facility (the "Original Kexim Guaranteed Lenders");
|
(6) |
THE EXPORT—IMPORT BANK OF KOREA of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 150-996, Republic of Korea as lender under the Kexim Direct Facility ("Kexim");
|
(7) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as mandated lead arrangers (the "Mandated Lead Arrangers");
|
(8) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as hedge counterparties (the "Hedge Counterparties");
|
(9) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent for the Kexim Guaranteed Lenders (the "Kexim Guarantee Agent");
|
(10) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as bookrunner (the "Bookrunner") and coordinator (the "Coordinator");
|
(11) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and
|
(12) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent").
|
(A) |
By the Facility Agreement, the Lenders agreed to make available to the Borrower a facilities of up to USD 475,000,000 of which USD 413,368,546.10 is outstanding at the date of this Agreement.
|
(B) |
Following the termination of the Total Drilling Contract the Parties have agreed to make certain amendments to the Facility Agreement and the other Finance Documents.
|
(C) |
This Agreement sets out the terms and conditions on which the Lenders and the other Finance Parties agree, with effect on and from the Effective Date, at the request of the Obligors, to:
|
(ii) |
transfer the ownership of the Drillship Owner from the Borrower to the Trust;
|
(iii) |
reduce the amount of the mandatory prepayment required under Clause 7.6 (Mandatory prepayment on cancellation of Satisfactory Drilling Contract) of the Facility Agreement following the termination of the Total Drilling Contract;
|
(iv) |
release the guarantee from the Purchaser;
|
(v) |
the consequential amendment of the Facility Agreement and the other Finance Documents in connection with those matters.
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where clause 42.2 (exceptions) of the Facility Agreement applies, all the Lenders.
|
(a) |
in consideration for the Lenders agreeing to reduce the amount of the mandatory prepayment required under Clause 7.6 (Mandatory prepayment on cancellation of Satisfactory Drilling Contract) of the Facility Agreement following the termination of the Total Drilling Contract from USD 145,894,352.70 to USD 125,000,000, the transfer of the ownership of the Borrower from the Purchaser, and the ownership of the Driliship Owner from the Borrower, to the Trust;
|
(b) |
release the Purchaser from all obligations, actual or contingent, joint or several, now or at any time outstanding, to which it might otherwise have any liability under the terms of the Guarantee and Indemnity set out in clause 17 (Guarantee and indemnity) of the Facility Agreement;
|
(c) |
waive the existing breaches of the terms of the Facility Agreement and the other Finance Documents as notified to the Facility Agent by the Borrower prior to the date of this Agreement;
|
(d) |
the cold-stacking of the Driliship; and
|
(e) |
the consequential amendment of the Facility Agreement and the other Finance Documents in connection with those matters,
|
(a) |
no Default continuing on the date of this Agreement (other than such Defaults as notified to the Facility Agent by the Borrower prior to the date of this Agreement) or on the Effective Date or resulting from the occurrence of the Effective Date;
|
(b) |
the Repeating Representations set out in the Facility Agreement, as amended and restated by this Agreement and updated with appropriate modifications to refer to this Agreement, to be made by the Borrower and the Drillship Owner being true on the date of this Agreement and the Effective Date; and
|
(c) |
the Facility Agent having received all of the documents and other evidence listed in Schedule 1 (Conditions Precedent) in form and substance satisfactory to the Facility Agent on or before 31 August 2016 or such later date as the Facility Agent may agree with the Borrower.
|
(a) |
the definition of, and references throughout each of the Finance Documents to, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the Facility Agreement and those Finance Documents as amended and restated by this Agreement; and
|
(b) |
the definition of, and references throughout each of the Finance Documents to, the Mortgage shall be construed as if the same referred to the Mortgage as amended and supplemented by the Mortgage Addendum; and
|
(c) |
by construing references throughout each of the Finance Documents to "this Agreement", "this Deed" and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Agreement.
|
(a) |
in the case of the Facility Agreement as amended and restated pursuant to Clause 7.1 (Specific amendments to the Facility Agreement);
|
(b) |
in the case of the Finance Documents other than the Facility Agreement as amended and restated pursuant to Clause 7.2 (Amendments to Finance Documents) and the Mortgage Addendum; and
|
(c) |
such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute") and each of the Obligors hereby submits to the jurisdiction of such courts for any Dispute.
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause 13.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints Ince Process Agents Ltd of 2 Leman St, London E18QN, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
1.1 |
Articles of incorporation and Certificate of incorporation (or similar), and evidence that the articles of incorporation of each of the Borrower and the Drillship Owner have been amended to provide that the decision to file for any type of bankruptcy, receivership, insolvency, sequestration, restructuring or reorganisation requires unanimous shareholder approval.
|
1.2 |
By-laws (or similar).
|
1.3 |
Updated Good Standing Certificate.
|
1.4 |
A copy of a resolution of the board of directors and shareholders (if applicable) of each Obligor:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.5 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party (notarised and apostilled if requested by the Facility Agent).
|
1.6 |
A Directors/Secretary's Certificate, certifying and attaching the constitutional documents referred to in paragraph 1.1—1.2 above and the required shareholder and board resolutions authorising such amendments and the resolutions referred to in 1.4 and 1.5 above:
|
(a) |
certifying that each copy document is correct, complete and in full force and effect as at a the date of this Agreement;
|
(b) |
certifying the identity of its directors, officers and shareholder(s); and
|
(c) |
with respect to the Borrower and the Drillship Owner, confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
|
2.1 |
A duly executed original of this Agreement.
|
2.2 |
A duly executed original of the Trust Agreement (and of each document to be delivered under it, including the A certificate and the B certificate).
|
2.3 |
A duly executed original of the Put and Call Option Agreement.
|
2.4 |
In respect of the Drillship Owner:
|
(a) |
a duly executed original of the Mortgage Addendum together with documentary evidence that the Mortgage Addendum has been duly recorded as a valid addendum to the Mortgage in accordance with the laws of the jurisdiction of the Approved Flag;
|
(b) |
the Account Security in respect of the Operating Account; and
|
(c) |
an amendment to the Account Security created by it in respect of its Earnings Account.
|
2.5 |
In respect of the Trust, a duly executed original of the new Shares Security in respect of the Borrower and the Drillship Owner (and of each document to be delivered under it except for the original shares certificate which shall be delivered in accordance with Clause 4 (Conditions Subsequent)).
|
2.6 |
In respect of the Borrower and the Purchaser, duly executed originals of the Pledge of Beneficial Interest in Trust (and of each document to be delivered under it).
|
2.7 |
In respect of the Borrower, duly executed originals of:
|
(a) |
the Assignment of Put and Call Option Agreement (and of each document to be delivered under it); and
|
(b) |
an amendment to the Account Security created by it in respect of its Earnings Account and the Retention Account.
|
3.1 |
The Budget.
|
3.2 |
The management agreement for the Drillship between the Drillship Owner and Ocean Rig Management Inc. as manager and any supplemental documentation thereto and the management coordination letter for the Drillship with Ocean Rig Management Inc., TMS Offshore Services Ltd. and the Drillship Owner, each in form and substance satisfactory to the Facility Agent and a Manager's Undertaking, in agreed form, from each Manager.
|
4.1 |
Receipt by the Facility Agent from the Borrower of the USD 126,000,000, of which USD 125,000,000 shall be applied in prepayment of the Facilities pro rata across the Facilities and, within each Facility, in inverse order of maturity and USD 1,000,000 shall be transferred to the Operating Account.
|
4.2 |
Evidence that the Retention Account has been credited with an amount of not less than USD 5,000,000.
|
4.3 |
Evidence that the Trust has been created.
|
4.4 |
Duly executed originals of stock powers from each of the Purchaser and the Borrower transferring all shares of the Borrower and of the Drillship Owner to the Trust.
|
4.5 |
Any other evidence that all shares of the Borrower and of the Drillship Owner have been transferred to the Trust.
|
4.6 |
Evidence that the Operating Account has been opened.
|
4.7 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by this Agreement, the Mortgage Addendum or for the validity and
|
4.8 |
Evidence that the costs and expenses then due from the Borrower pursuant to Clause 9 (Costs and Expenses) have been paid or will be paid by the Effective Date.
|
4.9 |
Evidence that any process agent referred to in Clause 13.2 (Service of process) if not an Obligor, has accepted its appointment.
|
4.10 |
Evidence that all UCC-1 filings considered necessary by the legal advisers to the Facility Agent and the Security Agent in the United States have been filed.
|
4.11 |
A certificate relating to each of the Borrower and the Drillship Owner (in form and substance satisfactory to the Facility Agent), signed by an officer of the Borrower and the Drillship Owner (as the case may be) and delivered to the Facility Agent, regarding certain representations and warranties in connection with this Agreement and the matters contemplated thereto.
|
4.12 |
A Certificate from the Purchaser signed by an Officer of the Purchaser and delivered to the Facility Agent pursuant to which there is a representation on any outstanding financial liabilities of the Borrower and the Drillship Owner.
|
5.1 |
A legal opinion of Wikborg Rein, legal advisers to the Facility Agent and the Security Agent in Norway, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.2 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in England, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.3 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in the Marshall Islands, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.4 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in New York, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.5 |
A legal opinion of Conyers Dill & Pearman, legal advisers to the Facility Agent and the Security Agent in the Cayman Islands, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.6 |
A legal opinion of Morris James, legal advisers to the Facility Agent and the Security Agent in Delaware, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.7 |
A memorandum on certain French law aspects of the Total Drilling Contract by Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in France, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.8 |
A long form non-consolidation opinion of Orrick, legal advisers to the Borrower, the Drillship Owner and the Purchaser in the customary form.
|
5.9 |
A memorandum on the bankruptcy remote nature of the transaction by Watson Farley & Williams LLP, legal advisers to the Facility Agent and the Security Agent in the United States, substantially in the form distributed to the Lenders before signing this Agreement.
|
5.10 |
Legal opinions of the legal advisers to the Facility Agent and the Security Agent in such other relevant jurisdictions as the Facility Agent may require.
|
BORROWER
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
PURCHASER
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
OCEAN RIG UDW INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
GUARANTOR and DRILLSHIP OWNER
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
)
|
COMMERCIAL LENDERS
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DNB BANK ASA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
CREDIT SUISSE AG
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
NORDDEUTSCHE LANDESBANK GIROZENTRALE
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
)
|
KEXIM GUARANTEED LENDERS
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DNB BANK ASA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
CREDIT SUISSE AG
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
KEXIM
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
THE EXPORT—IMPORT BANK OF KOREA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
MANDATED LEAD ARRANGERS
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DNB BANK ASA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
)
|
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
HEDGE COUNTERPARTIES
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DNB BANK ASA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
)
|
|||
KEXIM GUARANTEE AGENT
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DNB BANK ASA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
FACILITY AGENT
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DNB BANK ASA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
SECURITY AGENT
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DNB BANK ASA
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
|
)
|
||
Witness' address:
|
)
|
||
Clause
|
Page
|
Section 1 Interpretation
|
4
|
1 Definitions and Interpretation
|
4
|
Section 2 The Facilities
|
|
2 The Facilities
|
|
3 Purpose
|
|
4 Conditions of Utilisation
|
|
Section 3 Utilisation
|
|
5 Utilisation
|
|
Section 4 Repayment, Prepayment and Cancellation
|
|
6 Repayment
|
|
7 Prepayment and Cancellation
|
|
Section 5 Costs of Utilisation
|
|
8 Interest
|
|
9 Interest Periods
|
|
10 Changes to the Calculation of Interest
|
|
11 Fees
|
|
Section 6 Additional Payment Obligations
|
|
12 Tax Gross Up and Indemnities
|
|
13 Increased Costs
|
|
14 Other Indemnities
|
|
15 Mitigation by the Lenders
|
|
16 Costs and Expenses
|
|
Section 7 Guarantee
|
|
17 Guarantee and Indemnity
|
|
Section 8 Representations, Undertakings and Events of Default
|
|
18 Representations
|
|
19 Information Undertakings
|
|
20 Financial Covenants
|
|
21 Financial covenants after the Interim Maturity Date
|
67
|
|
|
|
|
|
|
|
86
|
|
87
|
|
|
Section 9 Changes to Parties
|
|
|
|
|
|
Section 10 The Finance Parties
|
|
|
|
|
|
|
|
|
|
|
|
Section 11 Administration
|
|
|
|
|
|
|
|
|
|
|
|
3940 Remedies and Waivers
|
|
|
|
|
|
|
|
4344 Confidentiality
|
126136
|
|
|
46 Bail-In
|
139
|
Section 12 Governing Law and Enforcement
|
|
|
|
|
|
Schedule 1 The Parties
|
|
Schedule 2 Conditions Precedent
|
|
Schedule 3 Requests
|
|
Schedule 4 Form of Transfer Certificate
|
|
Schedule 5 Form of Assignment Agreement
|
|
Schedule 6 Form of Compliance Certificate
|
|
Schedule 7 Form of Accession Letter
|
|
Schedule 8 Repayments
|
|
Schedule 9 Form of Prepayment/ Cancellation Notice
|
|
Schedule 10 Timetables
|
|
Schedule 11 Corporate Structure
|
|
Execution Pages
|
|
(1) |
DRILLSHIP ALONISSOS SHAREHOLDERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56858 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
|
|
(2) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56857 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as guarantor (the "Guarantor" or the "Original Guarantor");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original commercial lenders (the "Original Commercial Lenders");
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original lenders under the Kexim Guaranteed Facility (the "Original Kexim Guaranteed Lenders");
|
(5) |
THE EXPORT—IMPORT BANK OF KOREA of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 150-996, Republic of Korea as lender under the Kexim Direct Facility ("Kexim");
|
(6) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as mandated lead arrangers (the "Mandated Lead Arrangers");
|
(7) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as hedge counterparties (the "Hedge Counterparties");
|
(8) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent for the Kexim Guaranteed Lenders (the "Kexim Guarantee Agent");
|
(9) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as bookrunner (the "Bookrunner") and coordinator (the "Coordinator");
|
(10) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and
|
(11) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent").
|
(A) |
|
|
(B) |
By the Amending and Restating Agreement, the Finance Parties agreed to certain amendments to the facility agreement and the other Finance Documents.
|
(C) |
This Agreement sets out the terms and conditions of the facility agreement as amended and restated by the Amending and Restating Agreement.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
the Commercial Facility Margin for the Commercial Facility;
|
(b) |
the Kexim Direct Facility Margin for the Kexim Direct Facility; and
|
(c) |
the Kexim Guaranteed Facility Margin for the Kexim Guaranteed Facility.
|
(a) |
the amount of its participation in all Advances made; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed Utilisation Date.
|
(a) |
in relating to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time: and
|
(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
|
(a) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and
|
(b) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(c) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(a) |
the interest calculated on the basis of LIBOR only (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Facility or an Unpaid Sum to the last day of the current Interest Period in respect of the Facility or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a) |
cash in hand legally and beneficially owned by it; and
|
(b) |
cash deposits legally and beneficially owned by it, and which are deposited with (i) a Lender, (ii) any other deposit taking institution having a rating of at least A- from Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe acceptable to the Facility Agent (acting with the authorisation of the Majority Lenders) or (iii) any other bank or financial institution approved by the Facility Agent (acting with the authorisation of the Majority Lenders) which in each case:
|
(i) |
is free from any Security, other than pursuant to the Transaction Security;
|
(ii) |
is otherwise at the free and unrestricted disposal of the member of the Restricted Group who owns it; and
|
(iii) |
in the case of cash deposits held by a member of the Restricted Group other than an Obligor, is (in the opinion of the Facility Agent, based upon such documents and evidence as the Facility Agent may require the Borrower to provide in order to form the basis of such opinion) capable or, upon the occurrence of an Event of Default under this Agreement, would become capable of being paid without restriction to an Obligor within five Business Days of its request or demand therefore either by way of a dividend or by way of a repayment of principal (or the payment of interest thereon) in respect of Intra-Group Loan from the relevant Obligor to that member of the Restricted Group.
|
(a) |
any investment in marketable debt obligations issued or guaranteed by (i) a government or (ii) an instrumentality or agency of a government and in respect of (i) and (ii) having a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
|
(b) |
commercial paper (debt obligations) not convertible or exchangeable to any other security:
|
(i) |
for which a recognised trading market exists;
|
(ii) |
issued by an issuer incorporated in the United States of America, the United Kingdom or Norway;
|
(iii) |
which matures within one year after the relevant date of calculation; and
|
(iv) |
which has a credit rating of at least A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe;
|
(c) |
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (b) above and (iii) can be turned into cash on not more than five days' notice; or
|
(d) |
any other debt security approved by the Facility Agent (acting with the authorisation of the Majority Lenders),
|
(a) |
in relation to an Original Commercial Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Commercial Lender Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Commercial Lender, the amount of any Commercial Lender Commitment transferred to it under this Agreement,
|
(a) |
any Original Commercial Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Commercial Facility in accordance with Clause
|
(a) |
in relation to a Commercial Lender, its Commercial Lender Commitment;
|
(b) |
in relation to Kexim or any other Lender under the Kexim Direct Facility, its Kexim Commitment;
|
(c) |
in relation to a Kexim Guaranteed Lender, its Kexim Guaranteed Lender Commitment.
|
(a) |
any member of the Restricted Group or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Restricted Group or any of its advisers,
|
(i) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause
|
(ii) |
is identified in writing at the time of delivery as non-confidential by any member of the Restricted Group or any of its advisers; or
|
(iii) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance party is aware, unconnected with the Restricted Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Majority Lenders, pooled or shared with any other person:
|
(i) |
all freight, hire and passage moneys;
|
(ii) |
compensation payable to that Obligor or the Security Agent in the event of requisition of the Drillship for hire;
|
(iii) |
remuneration for salvage and towage services;
|
(iv) |
demurrage and detention moneys;
|
(v) |
damages for breach (or payments for variation or termination) of any Charter;
|
(vi) |
all moneys which are at any time payable under any Insurances in respect of loss of hire;
|
(vii) |
all monies which are at any time payable to that Obligor in respect of general average contribution; and
|
(b) |
if and whenever the Drillship is employed on terms whereby any moneys falling within paragraphs (i) to (vii) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Drillship.
|
(a) |
an account in the name of the Borrower, the Drillship Owner and/or any Intra-Group Charterer with the Account Bank designated "Earnings Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Earnings Account for the purposes of this Agreement,
|
(a) |
any release, emission, spill or discharge into the Drillship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from the Drillship; or
|
(b) |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than the Drillship and which involves a collision between the Drillship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Drillship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Drillship and/or any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from the Drillship and in connection with which the Drillship is actually or potentially liable to be arrested and/or where any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b) |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
|
(c) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
|
(a) |
this Agreement;
|
(b) |
any Fee Letter;
|
(c) |
any Hedging Agreement;
|
(d) |
the Trust Agreement;
|
(e) |
the Put and Call Option Agreement;
|
(f) |
|
(g) |
|
(h) |
|
(i) |
|
(j) |
the Pledge of Beneficial Interest in Trust;
|
(k) |
any Assignment of Put and Call Option Agreement;
|
(l) |
|
(m) |
the Asignment of Total Drilling Contract;
|
(n) |
|
(o) |
|
(p) |
|
(q) |
|
(r) |
|
(a) |
moneys borrowed;
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the applicable Accounting Principles, be treated as a finance or capital lease;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
|
(h) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(i) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
all policies and contracts of insurance, including entries of the Drillship in any protection and indemnity or war risks association, effected in respect of the Drillship, its Earnings or otherwise in relation to the Drillship; and
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium.
|
(a) |
in relation to Kexim, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Kexim Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any Lender under the Kexim Direct Facility, the amount of any Kexim Commitment transferred to it under this Agreement,
|
(a) |
in relation to an Original Kexim Guaranteed Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (the Lenders) and the amount of any other Kexim Guaranteed Lender Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Kexim Guaranteed Lender, the amount of any Kexim Guaranteed Lender Commitment transferred to it under this Agreement,
|
(a) |
any Original Kexim Guaranteed Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Kexim Guaranteed Facility in accordance with Clause
|
(a) |
Kexim;
|
(b) |
the Original Kexim Guaranteed Lenders;
|
(c) |
the Original Commercial Lenders; and
|
(d) |
any New Lender,
|
(a) |
the applicable Screen Rate; or
|
(b) |
if no Screen Rate is available for the currency of that Advance, the Loan, that part of the Loan or that Unpaid Sum), the Reference Bank Rate,
|
(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66% per cent. of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66% per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66% per cent. of the Loan immediately before such repayment,
|
(a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of a Manager; or appoint or remove all, or the majority, of the directors or other equivalent officers of either Manager; give directions with respect to the operating and financial policies of either Manager with which the directors or other equivalent officers of either Manager are obliged to comply; and/or
|
(b) |
the holding beneficially of more than 50 per cent. of the issued share capital of a Manager (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
|
(a) |
as at a date not more than 14 days previously (or, in relation to the valuations delivered pursuant to paragraph 3.4 of Part B of Schedule 2 (Conditions Precedent), 30 days previously);
|
(b) |
by an Approved Broker;
|
(c) |
with or without physical inspection of the Drillship (as the Facility Agent may require); and
|
(d) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any charter contract,
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any member of the Restricted Group or the Restricted Group as a whole; or
|
(b) |
the ability of any Obligor to perform its obligations under any Finance Document; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a) |
an account in the name of the Drillship Owner with the Account Bank designated "Operating Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial insitution other than the Account Bank) which is designated by the Facility Agent as the Operating Account for the purposes_of this Agreement.
|
(a) |
Security created by the Finance Documents;
|
(b) |
Security disclosed in writing to the Facility Agent prior to the date of this Agreement and acceptable to the Facility Agent;
|
(c) |
liens for unpaid master's and current crew's wages in accordance with usual maritime practice;
|
(d) |
liens for salvage;
|
(e) |
any ship repairer's or outfitter's possessory lien arising by operation of law and not exceeding USD 2,500,000; and
|
(f) |
any other liens incurred in the ordinary course of operating such Drillship by operation of law and securing obligations not more than 30 days overdue and not exceeding USD 2,500,000.
|
(a) |
its jurisdiction of incorporation;
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party is situated;
|
(c) |
any jurisdiction where it conducts its business; and
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party.
|
(a) |
each member of the Restricted Group; and
|
(b) |
each of its directors and officers, employees, agents and representatives.
|
(a) |
any expropriation, confiscation, requisition or acquisition of the Drillship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension) unless it is within 30 days redelivered to the full control of the Drillship Owner; and
|
(b) |
any arrest, capture, seizure or detention of the Drillship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the Drillship Owner.
|
(a) |
listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person);
|
(b) |
located in or incorporated under the laws of any country or territory that is the target of comprehensive, country- or territory-wide Sanctions which attach legal effect to being located in or incorporated under the laws of any country or territory that is the target of comprehensive, country or territory-wide Sanctions; or
|
(c) |
directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above.
|
(a) |
an account in the name of the Borrower with the Account Bank designated "Retention Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Retention Account for the purposes of this Agreement.
|
(a) |
the lists of Sanctions designations and/or targets maintained by any Sanctions Authority; and/or
|
(b) |
any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, from time to time.
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b) |
all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Secured Parties;
|
(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
|
(i) |
rights intended for the sole benefit of the Security Agent; and
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a) |
has direct or indirect control; or
|
(b) |
owns directly or indirectly more than fifty (50) per cent (votes and/or capital),
|
(a) |
strictly until the completion of the scope of work currently undertaken by Acqualis Offshore, Acqualis Offshore; and
|
(b) |
thereafter any other firm appointed by the Facility Agent (acting in the instructions of the Majority Lenders) in consultation with the Borrower.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of the Drillship; or
|
(b) |
any Requisition.
|
(a) |
in the case of an actual loss of the Drillship, the date on which it occurred or, if that is unknown, the date when the Drillship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Drillship, the earlier of:
|
(i) |
the date on which a notice of abandonment is given to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower or the Drillship Owner with the Drillship's insurers in which the insurers agree to treat the Drillship as a total loss; and
|
(c) |
in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
a person which is resident for tax purposes in the US; or
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) or any law in force from time to time in Switzerland relating to value added tax; and
|
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises to convert all or part of that liability into shares, securities or obligations of that person or any other person. to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "Account Bank", the "Facility Agent", a "Mandated Lead Arranger", the "Security Agent", any "Hedge Counterparty", any "Finance Party", any "Secured Party", any "Obligor" or any other "person" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii) |
"assets" includes present and future properties, revenues and rights of every description;
|
(iii) |
"contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv) |
"document" includes a deed and also a letter, fax or telex;
|
(v) |
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi) |
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;
|
(vii) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(viii) |
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
(ix) |
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
(x) |
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(xi) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(xii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiii) |
a time of day is a reference to London time;
|
(xiv) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
(xv) |
words denoting the singular number shall include the plural and vice versa; and
|
(xvi) |
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(b) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(c) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d) |
A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
|
1.3 |
Construction of insurance terms In this Agreement:
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of all Lenders.
|
1.5 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document including but not limited to Clause 16 (Costs and expenses), a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
(c) |
Any Receiver, Delegate or any other person described in paragraph (b) of Clause 14.2 (Other indemnities), paragraph (b) of Clause
|
2. |
THE FACILITIES
|
2.1 |
The Facilities
|
(a) |
a term loan facility which the Commercial Lenders make available in an aggregate principal amount not exceeding the Total Commercial Facility Loan Commitment, being USD 175,000,000 (the "Commercial Facility");
|
(b) |
a term loan facility which Kexim makes available in an aggregate principal amount not exceeding the Total Kexim Direct Facility Loan Commitment, being USD 175,000,000 (the "Kexim Direct Facility"); and
|
(c) |
a term loan facility which the Kexim Guaranteed Lenders make available in an aggregate principal amount not exceeding the Total Kexim Guaranteed Facility Loan Commitment, being USD 125,000,000 (the "Kexim Guaranteed Facility").
|
2.2 |
Finance Parties' rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
(c) |
A Finance Party may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
(d) |
Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the consent of any other Finance Party or joining any other Finance Party to the relevant proceedings.
|
3. |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
4. |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
no Default is continuing or would result from the proposed Advance;
|
(b) |
the Repeating Representations to be made by each Obligor are true;
|
|
(c) |
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).
|
(b) |
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, all the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification unless directly caused by the gross negligence or wilful misconduct of the Facility Agent.
|
4.4 |
Waiver of conditions precedent
|
5. |
UTILISATION
|
5.1 |
Delivery of the Utilisation Request
|
(a) |
The Borrower may utilise the Facilities by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b) |
The Borrower may not deliver more than one Utilisation Request in respect of the Facilities. All three Facilities must be utilised on the Utilisation Date.
|
5.2 |
Completion of the Utilisation Request
|
(a) |
The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
the proposed Utilisation Date is the Delivery Date of the Drillship and is a Business Day within the applicable Availability Period;
|
(ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
|
(iii) |
the proposed Interest Period complies with Clause 9 (Interest Periods); and
|
(iv) |
it specifies the account of the Builder in accordance with the Building Contract and/or the account of the Drillship Owner for reimbursement to the Drillship Owner of amounts already paid to the Builder.
|
(b) |
Only one Advance under each Facility may be requested in the Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in the Utilisation Request must be dollars.
|
(b) |
The amount of the proposed Advance must be an amount which is not more than the amount available pursuant to Clause 2.1 (The Facilities).
|
(c) |
The Utilisation for the Drillship must be utilised pro rata across the three Facilities.
|
(d) |
The aggregate amount of the proposed Advance must be an amount which is not more than 70 per cent. of the Market Value of the Drillship.
|
|
5.4 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Advance available by the Utilisation Date through its Facility Office.
|
(b) |
Upon receipt of the Utilisation Request, the Facility Agent shall by the Specified Time notify each Lender and the Kexim Guarantee Agent of the details of the requested Advance and the amount of each Lender's participation.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Payment to third parties
|
5.7 |
Disbursement of Advance to third party
|
5.8 |
Prepositioning of funds
|
(a) |
agree to pay interest on the amount of such funds at the rate described in Clause 8.1 (Calculation of interest) applicable to the first Interest Period for the period during which funds have been pre-positioned and so that interest shall be paid together with the first payment of interest in respect of the Advance at the Utilisation Date (being the Delivery Date) or, if the Utilisation Date does not occur, within three Business Days of demand by the Facility Agent; and
|
(b) |
shall, without duplication, indemnify each Finance Party against any losses it may incur in connection with such arrangement.
|
6. |
REPAYMENT
|
6.1 |
Repayment of Advances
|
(a) |
The Borrower shall repay each Advance of each Facility by
|
(b) |
The repayment of each Advance shall commence on the first Repayment Date and on each Repayment Date thereafter, as
|
(c) |
The Repayment Instalments under each Advance and the amount of the Commercial Facility Balloon shall
|
(i) |
the amount drawn under the relevant Facilities
|
(A) |
in the case of the Kexim Direct Facility and the Kexim Guaranteed Facility, spread equally across the
|
(B) |
in the case of the Commercial Facility, spread (proportionally as set out in Schedule 8 (Repayments)) in equal amounts across the maximum number of Repayment Dates
|
(ii) |
the aggregate principal outstanding on the Commercial Facility Termination Date shall not exceed USD
|
(d) |
Unless the Commercial Facility has been renewed as contemplated in Clause 7.5 7.4 (7.5Kexim prepayment option), the Commercial Facility Loan shall be repaid in full on the Commercial Facility Termination Date.
|
(e) |
Schedule 8 (Repayments) sets out the Repayment Instalments and the amount of the Commercial Facility Balloon
|
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
7. |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(b) |
upon the Facility Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrower shall repay that Lender's participation in the Facility concerned on the last day of the Interest Period for that Facility occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
|
|
|
|
|
7.2 |
|
(a) |
The Borrower may, if it gives the Facility Agent not less than five Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD 1,000,000) of any unutilised Facility. Any cancellation under this Clause
|
(b) |
The unutilised Commitment of each Lender in respect of any of the Facilities shall be automatically cancelled at close of business on the Utilisation Date.
|
7.3 |
|
(a) |
The Borrower may, if it gives the Facility Agent not less than 30 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD 10,000,000).
|
(b) |
Any partial prepayment under this Clause 4.4-7.3 (Voluntary prepayment of the Loan) shall be applied pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments.
|
7.4 |
|
(a) |
In the event that the Commercial Facility has not been extended hereunder by the Commercial Lenders or otherwise refinanced in each case on terms acceptable to Kexim and the Kexim Guarantor by the date falling three Months prior to the Commercial Facility Termination Date, Kexim and the Kexim Guarantor (acting through the Kexim Guarantee Agent) shall each have the option, but not the obligation, to terminate the Kexim Direct Facility Loan and the Kexim Guaranteed Facility Loan at the Commercial Facility Termination Date. Unless the Borrower has been notified in writing by Kexim and the Kexim Guarantee Agent no later than 60 days before the Commercial Facility Termination Date that Kexim and the Kexim Guarantor are satisfied with such terms and do not require prepayment, then such prepayment options shall be deemed to have been exercised, and the Borrower shall prepay in full each of the Advances made by either or both Kexim and the Kexim Guaranteed Lenders (as the case may be) (being the Kexim Direct Facility Loan and/or the Kexim Guaranteed Facility Loan, as the case may be) on the Commercial Facility Termination Date without premium, penalty or additional costs of any kind.
|
(b) |
This right of prepayment for the benefit of the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim set out in paragraph (a) above shall thereafter also arise for the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim at all other relevant times where the Commercial Facility having been extended or refinanced for a further period pursuant to sub-clause (a) above has not been further extended or otherwise refinanced on terms acceptable to the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim by the date falling three Months prior to the maturity date of so extended or refinanced Commercial Facility, so long as any Kexim Direct Facility Loan and/or any Kexim Guaranteed Facility Loan remains at such time outstanding under this Agreement.
|
|
|
|
7.5 |
|
(a) |
in the case the Drillship is sold or otherwise disposed of, on or before the date upon which the sale is completed by delivery of the Drillship to the buyer or disposal of the Drillship is otherwise completed; or
|
(b) |
in the case of a Total Loss, on the earlier of (i) the date falling 120 days, or such later date as may be agreed by the Facility Agent (acting on the instructions of the Lenders), after the Total Loss Date and (ii) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.6 |
Cash sweep
|
(a) |
The Drillship Owner shall irrevocably authorise the Account Bank to transfer the Excess Cash Flow to the Facility Agent from its Earnings Account on a monthly basis as specified in Clause 26.1 (Payment of Earnings).
|
(b) |
The Borrower shall irrevocably authorise the Account Bank promptly to transfer any Put and Call Receipts to the Facility Agent from its Retention Account.
|
(c) |
The Excess Cash Flow, any Put and Call Receipts and any amounts received by the Facility Agent under Clause 26.3 (Operating Account) shall be applied in prepayment pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments.
|
7.7 |
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be substantially in the form of Schedule 9 (Form of Prepayment / Cancellation Notice) hereto and shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs pursuant to Clause 10.4 (Break Costs) and prepayment fee pursuant to Clause
|
(c) |
The Borrower may not reborrow any part of a Facility which is prepaid.
|
(d) |
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f) |
If the Facility Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to the Borrower or all Lenders, as appropriate.
|
7.8 |
|
8. |
INTEREST
|
8.1 |
Calculation of interest
|
(a) |
the Applicable Margin; and
|
(b) |
LIBOR.
|
8.2 |
Payment of interest
|
(a) |
The Borrower shall pay accrued interest on each Advance on the last day of each Interest Period relating to it.
|
(b) |
If an Interest Period is longer than
|
8.3 |
Default interest
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 200 basis points higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 (Default interest) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b) |
If an Unpaid Sum consists of all or part of an Advance which became due on a day which was not the last day of an Interest Period relating to it:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Advance; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 200 basis points higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
(d) |
Additionally the rate of interest payable on any amount to which Clause 8.1 (Calculation of interest) continues to apply shall increase by 200 basis points on the date following any notice served by the Facility Agent following an Event of Default and whilst it is continuing, unremedied or unwaived.
|
8.4 |
Notification of rates of interest
|
8.5 |
Hedging
|
(a) |
The Borrower may request a Hedge Counterparty to enter into Hedging Agreements and shall if such Hedging Agreements are entered into after that date maintain such Hedging Agreements in accordance with this Clause 8.5 (Hedging).
|
(b) |
Each Hedging Agreement shall:
|
(i) |
be with a Hedge Counterparty;
|
(ii) |
be for a term ending on or before the Termination Date;
|
(iii) |
have settlement dates coinciding with the Interest Payment Dates;
|
(iv) |
be in agreed form;
|
(v) |
provide for two-way payments in the event of a termination of a transaction in respect of a Hedging Agreement, whether on a Termination Event (as defined in the relevant Hedging Agreement) or on an Event of Default (as defined in the relevant Hedging Agreement); and
|
(vi) |
provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars.
|
(c) |
The rights of the Borrower under the Hedging Agreements shall be assigned by way of security under an Assignment of Hedging Agreements. Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by the Borrower pursuant to the Assignment of Hedging Agreements of its rights under the Hedging Agreements to which it is party in favour of the Security Agent. Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement.
|
(d) |
The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
|
(e) |
Neither a Hedge Counterparty nor the Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent.
|
(f) |
Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to a conflict with any provision of this Agreement.
|
(g) |
If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment under this Agreement, will exceed 100 per cent. of the Loan at that time, the Borrower must promptly notify the Facility Agent and must, at the request of the Facility Agent, reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent so that it no longer exceeds or will not exceed 100 per cent. of the Loan then or that will be outstanding.
|
(h) |
Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (g) above will be apportioned as between those transactions pro rata.
|
(i) |
Paragraph (g) above shall not apply to any transactions in respect of any Hedging Agreement under which no Borrower has any actual or contingent indebtedness.
|
(j) |
Subject to paragraph (k) below, neither a Hedge Counterparty nor the Borrower may terminate or close out any transactions in respect of any Hedging Agreement (in whole or in part) except:
|
(i) |
in accordance with paragraph (g) above;
|
(ii) |
in the case of termination or closing out by a Hedge Counterparty, on the occurrence of Illegality, a Force Majeure Event, a Tax Event,Failure to Pay or
Bankruptcy (as each such expression is defined in the relevant Hedging Agreement); |
(iii) |
in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent serves notice under paragraph (b) of Clause
|
(iv) |
in the case of any other termination or closing out by a Hedge Counterparty or the Borrower, with the consent of the Facility Agent; or
|
(v) |
If the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged in full;
|
(k) |
If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under sub-paragraph (iii) of paragraph (j) above, such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent.
|
(l) |
A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if the Borrower is in breach of its payment obligations under any transaction in respect of that Hedging Agreement.
|
(m) |
The Security Agent shall not be liable for the performance of any of the Borrower's obligations under a Hedging Agreement.
|
(n) |
If a Hedging Agreement is entered into after the delivery of the Drillship, the Borrower shall amend the Mortgage and other Finance Documents as reasonably required by the Facility Agent for the purpose of securing that Hedging Agreement entered into after the Delivery Date or enter into a new Mortgage and amend the other Finance Documents at the request of the Facility Agent.
|
(o) |
The Borrower agrees that, prior to them (or any of them) entering into any interest rate swap or other hedge instrument with a counterparty (other than a Hedge Counterparty, an "Other Hedge Counterparty") for the purpose of hedging any interest rate risk under this Agreement, the Borrower shall offer for a period of not less than five Business Days to enter into a swap, or other instrument, on the same proposed terms and conditions with the Hedge Counterparties (with each Hedge Counterparty taking such portion as may be agreed between the Borrower and the Hedge Counterparties or, if one or more Hedge Counterparties declines such an offer or the Borrower elects only to enter into the hedge instrument with one of them, the remaining Hedge Counterparty or Hedge Counterparties (as the case may be) shall be entitled to take such portion as it or they (as the case may be) may agree with the Borrower). If all Hedge Counterparties decline such an offer or if the Borrower elects not to proceed on the basis that the offers are not competitive, the Borrower may then (subject, and without prejudice, to the requirements set out elsewhere in the Finance Documents) enter into such swap, or other instrument, on the same terms and conditions offered to those declining Hedge Counterparties (and in the same proportion as those Hedge Counterparties would have taken if they had accepted), with the Other Hedge Counterparty. The rights of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be assigned by way of Security to the Security Agent, and the obligations and liabilities of the Borrower under any hedging agreement with any Other
|
9. |
INTEREST PERIODS
|
9.1 |
Selection of Interest Periods
|
(a) |
The Borrower may select the first Interest Period for an Advance in the Utilisation Request. The Borrower may select each subsequent Interest Period in a Selection Notice.
|
(b) |
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrower not later than the Specified Time.
|
(c) |
If the Borrower fails to select an Interest Period in the Utilisation Request or fails to deliver a Selection Notice to the Facility Agent in accordance with paragraphs (a) and (b) above, the relevant Interest Period will be
|
(d) |
The Borrower may select an Interest Period of one, three or six Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders).
|
(e) |
An Interest Period for an Advance shall not extend beyond the applicable Termination Date, but shall be shortened so that it ends on the applicable Termination Date.
|
(f) |
In respect of a Repayment Instalment, an Interest Period for a part of the Advance equal to such Repayment Instalment shall end on the Repayment Date relating to it if such date is before the end of the Interest Period then current.
|
(g) |
The first Interest Period for an Advance shall start on the Utilisation Date and each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
9.2 |
Non-Business Days
|
10. |
CHANGES TO THE CALCULATION OF INTEREST
|
10.1 |
Absence of quotations
|
10.2 |
Market disruption
|
(a) |
If a Market Disruption Event occurs in relation to any Advance for any Interest Period, then the rate of interest on each Lender's share of the Advance (if any) for the Interest Period shall be the rate per annum which is the sum of: the Applicable Margin; and (ii)the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Advance from whatever source it may reasonably select.
|
(b) |
In this Agreement "Market Disruption Event" means:
|
(i) |
at or about noon on the Quotation Day for the relevant Interest Period, the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest Period; or
|
(ii) |
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in the Advance concerned exceed 50 per cent. of that Advance) that the cost to it or them of funding its participations in the Advance concerned or part of the Advance concerned from whatever source it may reasonably select be in excess of LIBOR.
|
10.3 |
Alternative basis of interest or funding
|
(a) |
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(b) |
Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders who participate in the relevant Advance and the Borrower, be binding on all Parties to the Finance Documents.
|
10.4 |
Break Costs
|
(a) |
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of an Advance or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Advance or Unpaid Sum.
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
11. |
FEES
|
11.1 |
Commitment fee
|
(a) |
The Borrower shall pay to the Facility Agent (for the account of each Lender) a commitment fee (the "Commitment Fee") computed at the rate of 40 per cent. per annum on the relevant Applicable Margin calculated on the undrawn Commitment of each Lender for each Facility, commencing on the date of this Agreement having been signed, and ending on the last day of the relevant Availability Period for each Facility.
|
(b) |
The accrued Commitment Fee is payable in arrears on the last day of each successive period of three Months which ends during the Availability Period, on the Utilisation Date and, if cancelled, on the cancelled amount of the relevant Lender's or Lenders' Commitment at the time the cancellation is effective.
|
11.2 |
Other fees
|
11.3 |
Kexim Guarantee Premium
|
(a) |
The Borrower acknowledges that the Kexim Guaranteed Lenders shall procure the placement of the Kexim Guarantee either through the Kexim Guarantee Agent or directly with the Kexim Guarantor and shall benefit from it throughout the duration of the Security
|
(b) |
The Borrower agrees that its obligation to make the payments set out in paragraph (a) above to the Facility Agent in respect of the Kexim Guarantee Premium (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The Kexim Guarantee Premium (or any part thereof) shall be refundable only in accordance with the terms of the Fee Letter referred to in paragraph (a) above.
|
(c) |
The Borrower acknowledges that the amount of the Kexim Guarantee Premium will be solely determined by the Kexim Guarantor and no Kexim Guaranteed Lender is in any way involved in the determination of the amount of the Kexim Guarantee Premium and agrees that the Borrower shall have no claim or defence against any Kexim Guaranteed Lender in connection with the amount of the Kexim Guarantee Premium.
|
(d) |
Any refund of the Kexim Guarantee Premium received by a Finance Party shall, provided no Event of Default is continuing, be promptly paid or transferred to the Borrower.
|
12. |
TAX GROSS UP AND INDEMNITIES
|
12.1 |
Definitions
|
(a) |
In this Agreement:
|
(b) |
Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
(c) |
This Clause 12 (Tax gross up and indemnities) shall not apply to any Hedging Agreement.
|
12.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
12.3 |
Tax indemnity
|
(a) |
The Borrower shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or
|
(B) |
relates to a FATCA Deduction required to be made by a Party.
|
(c) |
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
|
12.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit; the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
|
12.5 |
Stamp taxes
|
12.6 |
VAT
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d) |
Any reference in this Clause 12,6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) | not a FATCA Exempt Party; and |
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliances with any other law, regulation or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If the Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i) |
where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where the Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(i) |
a withholding certificate on Form W-8 or Form W-9 or any other relevant form; or
|
(ii) |
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f) |
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated
|
(h) |
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
12.8 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
13. |
INCREASED COSTS
|
13.1 |
Increased costs
|
(a) |
Subject to Clause 13.3 (Exceptions), the Borrower shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates which:
|
(i) |
arises as a result of:
|
(A) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
(B) |
compliance with any law or regulation made,
|
(ii) | (ii) | arises as a result of the implementation, interpretation, administration or application of or compliance with Basel III, CRD IV or CRR or any law or regulation that implements or applies Basel III, CRD IV or CRR |
(b) |
In this Agreement, "Increased Costs" means:
|
(i) |
a reduction in the rate of return from any Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii) |
an additional or increased cost; or
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
13.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
compensated for by Clause 123 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
(d) |
compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost);
|
(e) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(f) |
incurred by a Hedge Counterparty in its capacity as such.
|
14. |
OTHER INDEMNITIES
|
14.1 |
Currency indemnity
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
(i) | (I) | making or filing a claim or proof against that Obligor; or |
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
(c) |
This Clause 14.1 does not apply to any sum due under a Hedging Agreement
|
14.2 |
Other indemnities
|
(a) |
The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Event of Default;
|
(ii) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause
|
(iii) |
funding, or making arrangements to fund, its participation in an Advance requested by the Borrower in the Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or
|
(v) |
any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by a Secured Party as a result of conduct of any Obligor or member of the Restricted Group or any of their partners, directors, officers employees, agents or advisors, that violates any Sanctions.
|
(b) |
The Borrower shall (or shall procure that an Obligor will) within three Business Days of demand indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, the Drillship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
(i) |
Arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
(ii) | (ii) | in connection with any Environmental Claim. |
(d) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (Other indemnities) and the provisions of the Third Parties Act.
|
14.3 |
Mandatory Cost
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank, the Swiss National Bank or the Swiss Financial Market Supervisory Authority (FINMA) or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation
|
14.4 |
Indemnity to the Servicing Banks and the Kexim Guarantee Agent
|
(a) |
investigating any event which it reasonably believes is a Default; or
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
14.5 |
Indemnity to the Security Agent
|
(a) |
The Borrower shall (or shall procure that an Obligor will) within five Business Days of demand indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any Secured Party:
|
(i) |
in relation to or as a result of:
|
(A) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(B) |
the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(C) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; and
|
(D) |
any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security,
|
(ii) |
which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise than as a result of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b) |
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
15. |
MITIGATION BY THE LENDERS
|
15.1 |
Mitigation
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) or paragraph (a) of Clause 14.3 (Mandatory Cost) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2 |
Limitation of liability
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
(b) |
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16. |
COSTS AND EXPENSES
|
16.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement and the Transaction Security; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
16.2 |
Amendment costs If:
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to Clause
|
(c) |
an Obligor requests, and the Security Agent agrees to, the release of any part of the Charged Property from the Transaction Security, the Borrower shall, within three Business Days of demand, reimburse each of the Facility Agent and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by each Secured Party or the Kexim Guarantor in responding to, evaluating, negotiating or complying with that request or requirement.
|
16.3 |
Enforcement and preservation costs
|
16.4 |
Web Services
|
17. |
GUARANTEE AND INDEMNITY
|
17.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand by the Facility Agent pay that amount as if it were the principal obligor; and
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand by the Facility Agent against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by
|
17.2 |
Continuing guarantee
|
17.3 |
Reinstatement
|
17.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, take up or enforce, any rights against, or security over assets
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
17.5 |
Immediate recourse
|
17.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and
|
(b) |
hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of
|
17.7 |
Deferral of Guarantor's rights
|
(a) |
to be indemnified by an Obligor;
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
|
(d) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
|
(e) |
to exercise any right of set-off against any Obligor; and/or
|
(f) |
to claim or prove as a creditor of any Obligor in competition with any Secured Party.
|
17.8 |
Additional security
|
17.9 |
Applicability of provisions of Guarantee to other Security
|
18. |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(a) |
It is a corporation, duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(b) |
It and each of its Subsidiaries (if any) has the power to own its assets and carry on its business as it is being conducted.
|
18.3 |
Binding obligations
|
18.4 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have the first ranking priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking security.
|
18.5 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
the constitutional documents of any member of the Restricted Group; or
|
(c) |
any agreement or instrument binding upon it or any member of the Restricted Group or any member of the Restricted Group's assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.6 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
in the case of the Drillship Owner, its execution of the
|
(ii) |
its entry into, performance and delivery of, each Finance Document to which it is a party and, in the case of the Drillship Owner, the
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
|
18.7 |
Validity and admissibility in evidence
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the
|
(b) |
to make the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the
|
18.8 |
Governing law and enforcement
|
(a) |
The choice of governing law of each Finance Documents to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.
|
18.9 |
No filing or stamp taxes
|
(a) |
in case of the Drillship Owner, the registration of the Mortgage at the Marshall Island ship registry which will be made at the Delivery Date;
|
(b) |
if applicable, any other registration required by the legal advisers to the Finance Parties, which will be made and paid promptly after the date of the relevant Finance Documents.
|
18.10 |
Deduction of Tax
|
18.11 |
Taxes paid
|
(a) |
It is not and no other member of the Restricted Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Restricted Group is) overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
18.12 |
No default
|
(a) |
No Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries (if any) or to which its (or any of its Subsidiaries') assets are subject.
|
18.13 |
No misleading information
|
(a) |
Any factual information provided by any member of the Restricted Group for the purposes of this Agreement-, including but not limited to the Budget delivered in accordance with Clause 19.5 (Budget), was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in the information-, including but not limited to the Budget, being untrue or misleading in any material respect.
|
18.14 |
Original Financial Statements
|
(a) |
The Original Financial Statements were prepared in accordance with the applicable Accounting Principles consistently applied.
|
(b) |
The Original Financial Statements fairly represent its financial condition and operations (
|
(c) |
There has been no material adverse change in the assets, business or consolidated financial condition of the Restricted Group since 31 December 2013.
|
18.15 |
Pari passu ranking
|
18.16 |
No proceedings pending or threatened
|
18.17 |
Validity and completeness of the Building Contract and
|
(a) |
The Building Contract and the
|
(b) |
The copies of the Building Contract and the
|
(c) |
No amendments or additions to the Building Contract or the
|
18.18 |
No rebates etc.
|
18.19 |
No breach of laws
|
18.20 |
Compliance with Environmental Laws
|
18.21 |
No Environmental Claim
|
18.22 |
No Environmental Incident
|
18.23 |
ISM and ISPS Code compliance
|
18.24 |
Financial Indebtedness
|
18.25 |
Overseas companies
|
|
18.26 |
|
18.27 |
|
18.28 |
|
(a) |
The
|
(b) |
The
|
(c) |
None of the shares in any of the companies within the Restricted Group are subject to any option to purchase, pre-emption rights or similar rights.
|
18.29 |
|
18.30 |
|
(a) |
in the absolute ownership of the Drillship Owner, free and clear of all encumbrances (other than any Permitted Security), and the Drillship Owner is the sole, legal and beneficial owner of the Drillship;
|
(b) |
registered in the name of the Drillship Owner under the Approved Flag;
|
(c) |
operationally seaworthy in every way and fit for service; and
|
(d) |
classed with the Approved Classification with the Approved Classification Society and is free of all overdue requirements and recommendations.
|
18.31 |
|
18.32 |
|
18.33 |
|
(a) |
a Restricted Party;
|
(b) |
in breach of Sanctions; or
|
(c) |
subject to or involved in any complaint, claim, proceeding, formal notice, investigation or other action by any regulatory or enforcement authority or third party concerning any Sanctions.
|
18.34 |
|
18.35 |
|
(a) |
No corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause
|
(b) |
No creditors' process described in Clause
|
(c) |
None of the circumstances described in Clause
|
(d) |
Each
|
18.36 |
|
18.37 |
|
18.38 |
|
19. |
INFORMATION UNDERTAKINGS
|
19.1 |
General
|
19.2 |
Financial statements
|
(a) |
as soon as the same become available, but in any event within 120 days after the end of each financial year
|
|
(b) |
as soon as the same become available, but in any event within 60 days after each Quarter Date in each financial year
|
|
(c) |
prior to each financial year, detailed
|
19.3 |
Compliance Certificate
|
(a) |
The Borrower shall
|
(b) |
Each Compliance Certificate shall be signed by the chief financial officer or any authorized signatory of the
|
19.4 |
Requirements as to financial statements
|
(a) |
a description of any change necessary for those financial statements to reflect the applicable Accounting Principles, accounting practices and reference periods upon which the Original Financial Statements were prepared; and
|
(b) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) and, if applicable, Clause 21 (Financial covenants after the interim Maturity Date) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
19.5 |
Budget
|
(a) |
The Borrower shall deliver to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests) on or prior to the Effective Date a budget for the Restricted Group from the period up to and including 31 December 2018, broken down monthly (each such Month being a "Budget Month"), of projected cash receipts and disbursements (the "Budget"), and which shall include a breakdown of the following costs and expenses:
|
(i) |
a fixed amount of operating costs and expenses, which shall include the costs of cold-stacking the Drillship ("OPEX");
|
(ii) |
a fixed amount of maintenance capital expenditures in relation to equipment on the Drillship ("CAPEX");
|
(iii) |
a fixed amount of general and administrative expenses in relation to the Restricted Group and the Drillship ("G&A"),
|
(iv) |
a fixed amount of Taxes in relation to the Drillship, being, as at the date of the Amending and Restating Agreement, 9.2015 per cent. on all revenues received by the Drillship Owner under the Total Drilling Contract (including, without limitation, the Total Termination Payments); and
|
(v) |
a fixed amount of commission, equal to 1% of all revenues received for the Drillship (including without limitation the Total Termination Payments received under the Total Drilling Contract), payable to TMS Offshore Services Ltd. ("Commission"),
|
(vi) |
to (v) above together, the "Tax and Commission").
|
(b) |
Promptly upon receipt by the Facility Agent, it shall send the Budget to the Lenders and the Technical Advisor for approval and such Budget shall only constitute the Budget if approved by all the Lenders (following consultation with the Technical Advisor).
|
(c) |
The Facility Agent (acting on the instructions of any Lender) shall be entitled to request full information relating to the expenses of the Restricted Group to ensure they are properly and reasonably incurred and shall be entitled to review or to request an audit of all records.
|
(d) |
The Borrower shall use its reasonable endeavours to procure that, in respect of any Budget Month, the aggregate amount of the Permitted Operating Expenses, Tax and Commission and, in each case, the amount of each component thereof (as specified in paragraph (a) above) shall not exceed the budgeted amounts set out in the Budget for that Budget Month.
|
19.6 |
|
(a) |
promptly upon receipt. a copy of the monthly invoice payment confirmation from Total:
|
(b) |
|
(c) |
|
(d) |
|
(i) |
the Drillship, the Earnings or the Insurances;
|
(ii) |
the Charged Property;
|
(iii) |
compliance of the Obligors with the terms of the Finance Documents;
|
(iv) |
the financial condition, business and operations of any member of the Restricted Group,
|
(e) |
|
(f) |
|
(g) |
|
19.7 |
|
(a) |
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b) |
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by any authorized signatory of the Borrower certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.8 |
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii) |
any change in the status of an Obligor after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Bank supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Bank (for itself) in order for that Servicing Bank to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20. |
FINANCIAL COVENANTS
|
20.1 |
General
|
20.2 |
|
20.3 |
Financial testing
|
21. |
FINANCIAL COVENANTS AFTER THE INTERIM MATURITY DATE
|
21.1 |
General
|
21.2 |
|
(a) |
The Borrower shall ensure that Cash and Cash Equivalents (which, for the avoidance of doubt, shall include the USD 5,000,000 held on the Retention Account) of the Borrower (on a consolidated basis) will not at any time fall below
|
|
|
|
(b) |
Notwithstanding
|
(i) |
USD 10,000,000 during the next one year of operation of the Drillship;
|
(ii) |
USD 15,000,000 during the second year of operation of the Drillship; and
|
(iii) |
USD 20,000,000 thereafter.
|
21.3 |
|
|
21.4 |
|
21.5 |
|
|
|
|
|
21.6 |
|
22. |
|
22.1 |
|
22.2 |
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of, any Authorisation required under any law or regulation of any Relevant Jurisdiction or the state of the Approved Flag at any time of the Drillship to enable it to:
|
(i) |
perform its obligations under the Finance Documents to which it is a party;
|
(ii) |
perform, in the case of the Drillship Owner, its obligations under the Building Contract, the
|
(iii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of the Drillship or any Finance Document to which it is a party, the Building Contract, the
|
(iv) |
in the case of the Drillship Owner, own and operate the Drillship.
|
22.3 |
|
22.4 |
|
22.5 |
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals; and
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law.
|
22.6 |
|
(a) |
any Environmental Claim against any member of the Restricted Group which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Restricted Group.
|
22.7 |
|
(i) |
such payment is being contested in good faith;
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 19.2 (Financial statements); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
None of the Obligors may and, to the extent (in the opinion of the Facility Agent or the Majority Lenders) it has or reasonably could expect to have a Material Adverse Effect, no other member of the Restricted Group may change its residence for Tax purposes.
|
22.8 |
|
22.9 |
|
22.10 |
|
(a) |
The
|
|
(b) |
|
22.11 |
|
(a) |
Each Obligor shall procure that each Intra-Group Charterer shall be a company within the Restricted Group.
|
(b) |
Each Obligor shall procure that any Intra-Group Charterer not already party to this Agreement (other than a company within the Restricted Group being a counterparty to a Service Contract only) shall accede to this Agreement as an Additional Guarantor by signing an accession letter substantially in the form of Schedule 7 (Form of Accession Letter) hereto and/or taking such other step as the Facility Agent may reasonably require to provide its Guarantee and any such other Security as contemplated under this Agreement, and Shares Security shall be granted over the shares in that Intra-Group Charterer.
|
22.12 |
|
(a) |
The Drillship Owner shall hold the title to, and own the entire beneficial interest in, the Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause
|
(b) |
Each Obligor shall procure that the Drillship Owner and/or Intra-Group Charterer (as the case may be) shall hold the title to, and own the entire beneficial interest in, the Earnings payable to each such party and its rights in the Insurances related to the Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause
|
22.13 |
|
(a) |
All Charters for the Drillship shall be made on market terms and otherwise on arm's length terms.
|
(b) |
No novation or assignment of a Charter shall be permitted, save for
|
(i) |
novations or assignments in favour of the Secured Parties under the Finance Documents; or
|
(ii) |
novations or assignments in the ordinary course of business between the Drillship Owner and/or any other member of the Restricted Group (subject to Clause
|
(iii) |
with the prior written consent of all the Lenders (not to be unreasonably withheld).
|
22.14 |
|
(a) |
The
|
(b) |
The companies within the Restricted Group (other than the Drillship Owner) shall not engage in any business other than the ownership (direct or indirect, as the case may be) of the Drillship Owner or (if relevant) the operation of the Drillship as an Intra-Group Charterer.
|
(c) |
The Drillship Owner shall not engage in any business other than the ownership and operation of the Drillship.
|
22.15 |
|
22.16 |
|
(a) |
None of the companies within the Restricted Group will create or permit to subsist any Security over any of its assets.
|
(b) |
None of the companies within the Restricted Group will:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
The
|
(d) |
Paragraphs (a), (b) and (c) above do not apply to any Permitted Security.
|
22.17 |
|
(a) |
None of the companies within the Restricted Group shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of the Drillship, the Earnings or the Insurances or other asset being the subject of Security pursuant to the Finance Documents (including but not limited to its interest in the Trust) or the whole or a substantial part of its assets.
|
(b) |
Paragraph (a) above does not apply to:
|
(i) |
any sale, lease, transfer or other disposal made on market value and arm's length terms and in compliance with Clause 7 (Prepayment and cancellation) of this Agreement; or
|
(ii) |
any Charter, unless otherwise prohibited under this Agreement.
|
22.18 |
|
(a) |
|
|
22.19 |
|
(a) |
Each Obligor shall procure that any current or future intra-group claims (including any Intra-Group Loan) owed by any Obligor to an Obligor or another company within the Restricted Group and all sums owed by any Obligor to the Manager shall be unsecured and fully subordinated, in terms of payment and priority, to the rights of the Finance Parties under the Finance Documents on terms acceptable to the Facility Agent.
|
(b) |
No payments of principal or interest under any Intra-Group Loan shall be permitted until all outstanding amounts under the Finance Documents have been repaid in full.
|
(c) |
Additionally each Obligor shall procure that no transfer, novation or assignment of any Intra-Group Loan or other claim (whether for security or otherwise) shall take place at any time to any
|
(d) |
Each Obligor shall procure that any current or future Intra-Group Loan shall be subject to Security under an Assignment of Intra-Group Loan.
|
22.20 |
|
(a) |
None of the companies within the Restricted Group shall make any investments or acquisitions, except for any capital expenditure or investments related to ordinary upgrade or maintenance work of the Drillship.
|
(b) |
None of the companies within the Restricted Group shall provide any guarantee or indemnity to or for the benefit of any person in respect of any obligation or any other person or enter into any document under which it assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents and except liabilities under guarantees given in the ordinary course of business for operational reasons; or
|
(c) |
None of the companies within the Restricted Group shall make any loan or provide any form of credit or financial assistance to any person.
|
22.21 |
|
(a) |
|
(b) |
|
(c) |
|
(d) |
|
22.22 |
|
(a) |
|
|
|
(b) |
|
|
22.23 |
|
(a) |
make it unlawful for an Obligor to perform any of its obligations under the Finance Documents;
|
(b) |
cause any obligation of an Obligor under the Finance Documents to cease to be legal, valid, binding or enforceable;
|
(c) |
cause any Finance Document to cease to be in full force and effect;
|
(d) |
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e) |
imperil or jeopardise the Transaction Security.
|
22.24 |
|
(a) |
No Obligor shall (and the
|
(i) |
is a breach of Sanctions; and/or
|
(ii) |
causes (or will cause) a breach of Sanctions by any Relevant Person or Finance Party and/or
|
(iii) |
otherwise benefits any Restricted Party.
|
(b) |
No Obligor shall (and the
|
22.25 |
|
(a) |
No member of the Restricted Group shall enter into arrangements which provide an obligation to charter in (or similar arrangement) any tonnage from companies outside the Restricted Group.
|
(b) |
Any charter-in arrangement permitted pursuant to paragraph (a) above shall be made on market terms and otherwise on arm's length terms.
|
22.26 |
|
(a) |
The Borrower shall procure that no Obligor shall act (or omit to act) in a manner that is inconsistent with or which could result in a breach of any requirement of the Kexim Guarantor under or in connection with the Kexim Guarantee and, in particular:
|
(i) |
each Obligor shall do all that is reasonably necessary and within its control to ensure that all requirements of the Kexim Guarantor under or in connection with the Kexim Guarantee are complied with;
|
(ii) |
each Obligor will cooperate with the Facility Agent and the Kexim Guarantee Agent on its reasonable request to take all steps necessary on the part of the Obligors (or any of them) to ensure that the Kexim Guarantee remains in full force and effect throughout the Security Period; and
|
(iii) |
each Obligor will use reasonable efforts to assist the Kexim Guarantee Agent in making any claim under the Kexim Guarantee.
|
(b) |
The Borrower shall promptly:
|
(i) |
notify the Facility Agent and the Kexim Guarantee Agent promptly after it becomes aware of the occurrence of any Default or Event or Default;
|
(ii) |
provide copies of all financial or other information reasonably required by the Facility Agent and/or the Kexim Guarantee Agent to satisfy any request for information by the Kexim Guarantor pursuant to the Kexim Guarantee. The Borrower agrees that it shall be reasonable for the Facility Agent and/or the Kexim Guarantee Agent to make a request under this Clause
|
22.27 |
|
(a) |
Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right or any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed under this Clause
|
23. |
|
23.1 |
|
(a) |
The undertakings in this Clause
|
(b) |
At any time where there is an Intra-Group Charterer within the Charter arrangements for the Drillship, the Drillship Owner shall be entitled to procure the performance of the undertakings in this Clause
|
23.2 |
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(b) |
hull interest and/or freight interest;
|
(c) |
war risks (including blocking and trapping, acts of terrorism and piracy);
|
(d) |
protection and indemnity risks;
|
(e) |
risk of loss of Earnings; and
|
(f) |
such other insurances as the Lenders may reasonably require.
|
23.3 |
|
(a) |
The Drillship Owner shall effect such insurances:
|
(i) |
in dollars;
|
(ii) |
in the case of fire and usual marine risks and war risks, in an amount equal to at least 80 per cent. of the
|
(iii) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(iv) |
in the case of protection and indemnity risks, in respect of the full tonnage of the Drillship;
|
(v) |
in the case of risk of loss of Earnings insurance, in an amount not less than the amount confirmed by the report from the insurance broker obtained in accordance with Clause
|
(vi) |
in each of the above cases on terms approved by the Facility Agent (acting on the authorisation of the Majority Lenders) and through such brokers, insurers, associations and clubs as the Facility Agent (acting on the authorisation of the Majority Lenders) from time to time may approve as appropriate for an internationally reputable major drilling contractor.
|
(b) |
For the purpose of this Clause
|
(i) |
120 per cent. of the Loan; and
|
(ii) |
the Market Value of the Drillship.
|
23.4 |
|
(a) |
subject always to paragraph (b), name the Drillship Owner and any Intra-Group Charterer as the main co assured unless the interest of every other co assured is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b) |
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(c) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(d) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(e) |
provide that the Security Agent may make proof of loss if the Drillship Owner or any Intra-Group Charterer fails to do so.
|
23.5 |
|
(a) |
at least 14 days before the expiry of any obligatory insurance effected by it, renew that obligatory insurance; and
|
(b) |
procure that the brokers and/or the war risks and protection and indemnity associations (approved in accordance with
|
23.6 |
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters of undertaking in a form required by the Facility Agent and including undertakings by the brokers that:
|
(i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from the Drillship Owner concerned or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances;
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Drillship under such obligatory insurances any premiums due for other Drillships under the fleet or other amounts due to them for other insurances or any other person, they waive any lien on the policies for premium due for other Drillships under the fleet cover or any sums received under them which they might have in respect of such premiums or other amounts due for other Drillships under the fleet cover and they will not cancel such obligatory insurances on this Drillship by reason
|
23.7 |
|
(a) |
a copy of the certificate of entry for the Drillship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders ; and
|
(c) |
a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Drillship if trading in the United States or any other relevant jurisdiction.
|
23.8 |
|
23.9 |
|
23.10 |
|
23.11 |
|
(a) |
The Drillship Owner shall not do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance effected by it invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance effected by it repayable in whole or in part.
|
(b) |
Without limiting paragraph (a) above, the Drillship Owner shall:
|
(i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances effected by it, and (without limiting the obligation contained in paragraph (b)(iii) of Clause
|
(ii) |
not make any changes relating to the Approved Classification or the Approved Classification Society or Manager or operator of the Drillship, without obtaining the underwriters' prior consent;
|
(iii) |
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Drillship is entered to maintain cover for trading to the
|
(iv) |
not employ the Drillship, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances effected by it, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify; and
|
(v) |
notify the Facility Agent in writing prior to the Drillship entering the territorial waters of the US, and arrange for such additional protection and indemnity cover as required by the Facility Agent.
|
(c) |
The Facility Agent may, at any time and for the account of the Borrower, obtain an insurance report from an independent marine insurance broker.
|
23.12 |
|
23.13 |
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance effected by it for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
23.14 |
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause
and the Borrower shall, forthwith upon demand, indemnify the Security Agent in respect of all fees and other expenses incurred by or for the account of the Security Agent in connection with any such report as is referred to in paragraph (a) above.
|
23.15 |
|
(a) |
The Security Agent shall effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils (pollution) insurance, covering, in relation to mortgagee's interest marine insurance, not less than 170 per cent. of the Loan and, in relation to mortgagee's interest additional perils (pollution) insurance, not less than the amount of the Loan, and on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
|
(b) |
The Borrower shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
24. |
|
24.1 |
|
24.2 |
|
(a) |
keep the Drillship registered in its name under the Approved Flag from time to time at its port of registration;
|
(b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or Imperilled; and
|
(c) |
not change the name of the Drillship, provided that any change of flag of the Drillship (other than to an Approved Flag) shall be subject to:
|
(i) |
the prior consent of the Majority Lenders, and:
|
(ii) |
the Drillship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on the Drillship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage and on such other terms and in such other form as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require; and
|
(iii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require.
|
24.3 |
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of any material overdue recommendations nor adverse notations.
|
24.4 |
|
24.5 |
|
(a) |
Subject to
|
(i) |
is in the same condition as or better condition than the part or item removed;
|
(ii) |
is free from any Security in favour of any person other than the Security Agent; and
|
(iii) |
becomes, on installation on the Drillship, the property of the Drillship Owner and subject to the security constituted by the Mortgage.
|
(b) |
The Drillship Owner may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Drillship.
|
(c) |
Paragraph (a) shall not apply in respect of removal or parts or equipment in connection with cold stacking of the Drillship to the extent such removal is approved by the Technical Adviser.
|
24.6 |
|
24.7 |
|
24.8 |
|
(a) |
The Drillship Owner shall promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Drillship, its Earnings or its Insurances;
|
(ii) |
all taxes, dues and other amounts charged in respect of the Drillship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of the Drillship, its Earnings or its Insurances.
|
(b) |
The Drillship Owner shall forthwith upon receiving notice of the arrest of the Drillship or of its detention in exercise or purported exercise of any lien or claim procure its release by providing bail or otherwise as the circumstances may require.
|
24.9 |
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Drillship, its ownership, employment, operation, management and registration, including the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and the laws and regulations of the Approved Flag;
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Drillship nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions.
|
24.10 |
|
(a) |
procure the Drillship's and the company responsible for the Drillship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for the Drillship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
24.11 |
|
(a) |
consented to in advance and in writing by the underwriters of the Drillship's war risk insurances and fully covered by those insurances; or
|
(b) |
(to the extent not covered by those insurances) covered by additional insurance taken out by the Drillship Owner or any Intra-Group Charterer (as the case may be) at their expense, which additional insurance shall be deemed to be part of the insurances subject to the Transaction Security,
|
(i) |
the war risk insurers have been duly notified and have agreed to the Drillship entering the specified war zone; and
|
(ii) |
it has taken out all insurances necessary to cover all additional risk.
|
24.12 |
|
(a) |
the Drillship, its employment, position and engagements;
|
(b) |
any Earnings and payments and amounts due to any master and crew;
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Drillship and any payments made by it in respect of the Drillship;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, the Manager's compliance and the compliance of the Drillship with the ISM Code and the ISPS Code,
|
24.13 |
|
(a) |
any casualty to the Drillship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which the Drillship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of the Drillship for hire;
|
(d) |
any requirement or recommendation made in relation to the Drillship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e) |
any arrest or detention of the Drillship, any exercise or purported exercise of any lien on the Drillship or its Earnings or any requisition of the Drillship for hire;
|
(f) |
any intended dry docking of the Drillship;
|
(g) |
any Environmental Claim made against the Drillship Owner, the Borrower or in connection with the Drillship, or any Environmental Incident;
|
(h) |
any claim made by it under the Building Contract;
|
(i) |
any default (by any party) under a Charter;
|
(j) |
any claim for breach of the ISM Code or the ISPS Code being made against the Drillship Owner, the Manager or otherwise in connection with the Drillship; or
|
(k) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
24.14 |
|
(a) |
let the Drillship on demise charter for any period other than a Bareboat Charter;
|
(b) |
enter into any time or consecutive voyage charter in respect of the Drillship other than a Satisfactory Drilling Contract;
|
(c) |
appoint a manager of the Drillship other than the Manager;
|
(d) |
de activate or lay up on a "cold stack" basis the Drillship
|
(e) |
put the Drillship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed USD 15,000,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on the Drillship or its Earnings for the cost of such work or for any other reason.
|
24.15 |
|
(a) |
|
(b) |
No Obligor shall, without the prior written consent of the Majority Lenders, terminate or make any material amendments to the Building Contract or, if relevant, any Satisfactory Drilling Contract.
|
24.16 |
|
24.17 |
23.17Sharing of Earnings
|
24.18 |
Marketing of the Drillship
|
(a) |
The Obligors shall continue to market the Drillship for appropriate employment and use commercially reasonable efforts to secure a Satisfactory Drilling Contract to ensure compliance with the requirements under Appendix 5 Article 11 of the Total Drilling Contract.
|
(b) |
The Borrower shall, on a monthly basis, provide the Facility Agent with documentation evidencing its marketing efforts required by parapgraph (a) above as reasonably required by the Lenders.
|
24.19 |
Manager Change of Control
|
24.20 |
23.18Notification of compliance
|
25 |
|
25.1 |
General
|
25.2 |
|
(a) |
The Market Value of the Drillship shall be determined at the Delivery Date of the Drillship and semi-annually thereafter, and at such other times as the Facility Agent may request.
|
(b) |
The valuations for the purpose of determining the Market Value of the Drillship shall be obtained at the cost of the Borrower.
|
(c) |
The Borrower shall promptly provide the Facility Agent and the Approved Brokers acting under this Clause
|
25.3 |
|
(a) |
the Market Value of the Drillship; plus
|
(b) |
the net resalable value of additional non-cash Security previously provided under this Clause
|
|
f
|
|
25.4 |
|
(a) |
provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Facility Agent may approve or require; or
|
(b) |
prepay such part of the Loan required in order to eliminate the shortfall.
|
25.5 |
|
25.6 |
|
26 |
ACCOUNTS AND
|
26.1 |
|
(a) |
|
|
|
(b) |
|
(i) |
first, in payment of fees, costs and expenses of the Account Bank, the Facility Agent and the Security Agent;
|
(ii) |
second, in payment to the Operating Account of:
|
(A) |
an amount equal to USD 10,000 per day for the next Month (the "Monthly OPEX Transfer"), to be applied by the Obligors as follows:
|
(1) |
firstly, for the payment of the Permitted Operating Expenses which are due and payable in the relevant Budget Month in accordance with the Budget approved by all the Lenders (following consultation with the Technical Advisor) pursuant to Clause 19.5 (Budget); and
|
(2) |
secondly, the balance between the Monthly OPEX Transfer and the Permitted Operating Expenses for the relevant Budget Month paid in accordance with (1) above (constituting, as at the Effective Date, USD 3,289 per day) to serve as an operating buffer sitting on the Operating Account; and
|
(B) |
an amount equal to the Tax and Commission as set out in the Budget for the relevant Budget Month to be applied by the Obligors in payment of Tax and Commission which are due and payable in accordance with the Budget approved by all the Lenders (following consultation with the Technical Advisor) pursuant to Clause 19.5 (Budget);
|
(iii) |
third, in payment to the Facility Agent for its distribution to the Lenders on each Repayment Date and on each due date for the payment of interest under this Agreement in accordance with Clause 35.2 (Distributions by the Facility Agent) of:
|
(A) |
|
(B) |
|
(iv) |
fourth, any remaining amounts standing to the credit of the relevant Earnings Account after application pursuant to the foregoing paragraphs shall:
|
(A) |
until the credit balance on the Retention Account (including the minimum balance of USD 5,000,000 required in accordance with Clause 20.2 (Minimum credit balance on Retention Account) is USD 20,000,000, be transferred to the Retention Account; and /or
|
(B) |
at any time when the credit balance on the Retention Account is USD 20,000,000 in accordance with paragraph (A) above, be deemed as excess cash flow ("Excess Cash Flow") and transferred to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
In the event that:
|
(i) |
the instalment of the Total Termination Payment due on 30 August 2016 is not received into the relevant Earnings Account by the first Repayment Date after the Effective Date; and
|
(ii) |
as a result, there are insufficient funds standing to the credit of the relevant Earnings Account for settling the sums due under sub-paragraph (iii) of paragraph (b) above,
|
(A) |
failure to receive such instalment from Total within the grace period set out in paragraph (b) of Clause 27.3 (Non-payment or other events under Total Drilling Contract) shall constitute an Event of Default; and
|
(B) |
such loan shall be fully subordinated to the Loan and shall not be repayable to the Purchaser unless and until the instalment from Total has been paid by Total and credited to the relevant Earnings Account.
|
26.2 |
Receipt of amounts under the Put and Call Option Agreement
|
26.3 |
Operating Account
|
(a) |
If at any time the credit balance of the amount on the Operating Account is insufficient to cover the Permitted Operating Expenses the Obligors may, by notice to the Facility Agent, request the prior consent of the Majority Lenders (following consultation with the Technical Advisor) to increase the Monthly OPEX Transfer for the next Month or such other period as specified by the Obligors.
|
(b) |
The Obligors shall ensure that:
|
(i) |
the Account Bank shall be authorised, on such dates as the Facility Agent may from time to time specify to the Account Bank, to send transcripts and evidence of the credit balance on the Operating Account to the Facility Agent; and
|
(ii) |
on a quarterly basis, starting on 6 December 2016 and on a quarterly basis thereafter (each such date being a "Test Date"), any credit on the Operating Account (including any part of the operating buffer) in excess of USD 1,000,000 shall, on the date falling one Month after the Test Date, be transferred by the Account Bank to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
The Security Agent may block the Operating Account upon the occurrence of a Default.
|
26.4 |
Retention account
|
|
|
|
|
|
(a) |
If the credit balance on the Earnings Account is insufficient in any calendar month for the
|
(b) |
Subject to paragraph (a) above, the Retention Account shall be blocked at all times.
|
26.5 |
|
26.6 |
|
26.7 |
|
(a) |
comply with any requirement of the Facility Agent as to the location or relocation of any Earnings Account
|
(b) |
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts
|
27 |
|
27.1 |
|
27.2 |
|
(a) |
its failure to pay is caused by an administrative or technical error in the banking system, appropriate evidence of which is provided to the Facility Agent; and
|
(b) |
payment is made within five Business Days of its due date.
|
27.3 |
Non-payment or other events under Total Drilling Contract
|
(a) |
Any party to the Total Drilling Contract rescinds or purports to rescind or repudiates or purports to repudiate the Total Drilling Contract or evidences an intention to rescind or repudiate the Total Drilling Contract.
|
(b) |
Total does not pay on the due date any amount of the Total Termination Payments payable under the Total Drilling Contract unless payment is made within 60 days of its due date.
|
(c) |
The Total Drilling Contract is amended or the Drillship Owner waives any of its rights under the Total Drilling Contract without the prior written consent of all the Lenders.
|
(d) |
Any disputes are commenced or threatened in relation to amounts due under the Total Drilling Contract.
|
(e) |
Any:
|
(i) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.11 (Insolvency proceedings) or creditors' process described in Clause 27.12 (Creditors' process); or
|
(ii) |
circumstance described in Clause 27.10 (Insolvency),
|
27.4 |
Non-compliance under Put and Call Option Agreement
|
27.5 |
|
27.6 |
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 calendar days of the Facility Agent giving notice to the Borrower or (if earlier) the Borrower becoming aware of the failure to comply.
|
27.7 |
|
27.8 |
|
27.9 |
|
(a) |
Any Financial Indebtedness of any member of the Restricted Group is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any member of the Restricted Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any member of the Restricted Group is cancelled or suspended by a creditor of any member of the Restricted Group as a result of an event of default (however described).
|
(d) |
Any creditor of any member of the Restricted Group becomes entitled to declare any Financial Indebtedness of any member of the Restricted Group due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause
|
27.10 |
|
(a) |
An Obligor or any member of the Restricted Group is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of an Obligor or any member of the Restricted Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
27.11 |
|
(a) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Restricted Group other than a solvent liquidation or reorganisation of any member of the Restricted Group which is not an Obligor;
|
(b) |
a composition, compromise, assignment or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Restricted Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Restricted Group or any of its assets; or
|
(d) |
enforcement of any Security over any assets of any member of the Restricted Group,
|
27.12 |
|
27.13 |
|
27.14 |
|
(a) |
It is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of any Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c) |
Any Finance Document ceases to be in full force and effect or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
27.15 |
|
27.16 |
|
27.17 |
|
27.18 |
|
27.19 |
|
27.20 |
|
27.21 |
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable; and/or
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders,
|
27.22 |
|
27.23 |
Instruction under the Put and Call Option Agreement
|
28 |
|
28.1 |
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
28.2 |
|
(a) |
The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i) |
to another Lender or an Affiliate of a Lender; or
|
(ii) |
made at a time when a Default is continuing.
|
(b) |
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 10 Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
(c) |
The consent of the Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to any amount payable under Clause 14.3 (Mandatory Cost).
|
(d) |
An assignment will only be effective on:
|
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and
|
(ii) |
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(e) |
A transfer will only be effective if the procedure set out in Clause
|
(f) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13 (Increased Costs),
|
(g) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
28.3 |
|
28.4 |
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Obligor;
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction Security; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
28.5 |
|
(a) |
Subject to the conditions set out in
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations");
|
(ii) |
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(iv) |
the New Lender shall become a Party as a "Lender".
|
28.6 |
|
(a) |
Subject to the conditions set out in Clause
|
(b) |
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c) |
Subject to Clause
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause
|
28.7 |
|
28.8 |
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
28.9 |
|
(a) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(b) |
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(ii) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause
|
28.10 |
|
(a) |
If the Kexim Guarantor makes a payment under the Kexim Guarantee, then, to the extent that it is required to do so by the Kexim Guarantor under the Kexim Guarantee, a Kexim Guaranteed Lender receiving a payment pursuant to the Kexim Guarantee shall, at the cost of the Borrower and without any requirement for the consent of the Borrower, transfer to the Kexim Guarantor (in accordance with, and subject to, Clause
|
(b) |
A transfer pursuant to paragraph (a) above shall not limit the rights of the relevant Kexim Guaranteed Lender to recover any remaining part of its participation in a Loan or any other moneys owing to it under this Agreement or any other Finance Documents.
|
(c) |
If the Kexim Guarantor makes any payment to a Kexim Guaranteed Lender under the Kexim Guarantee:
|
(i) |
the obligations and liabilities of the Obligors (and of any of them) under this Agreement and each of the other Finance Documents shall not be reduced, discharged nor affected in any way;
|
(ii) |
the Kexim Guarantor shall be subrogated to the rights of that Kexim Guaranteed Lender against the Obligors under this Agreement and each of the other Finance Documents;
|
(iii) |
the Kexim Guarantor shall be entitled to the extent of such payment to exercise the rights of that Kexim Guaranteed Lender against the Obligors (and against any of them) under this Agreement and each of the other Finance Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued on it are fully reimbursed to the Kexim Guarantor; and
|
(iv) | (iv) | with respect to the obligations and liabilities of the Obligors owed to that Kexim Guaranteed Lender under the Finance Documents (or any of them), such obligations and liabilities shall additionally be owed to the Kexim Guarantor by way of subrogation of the rights of that Kexim Guaranteed Lender. |
(d) |
The Obligors shall indemnify the Kexim Guarantor in respect of any costs or expenses (including legal fees) suffered or incurred by it in connection with any transfer referred to in paragraph (a) above.
|
29 |
|
|
|
30 |
|
30.1 |
|
(a) |
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each other Finance Party authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
30.2 |
|
(a) |
The Facility Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause
|
(i) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
30.3 |
|
(a) |
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(c) |
Without prejudice to Clause
|
(d) |
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Mandated Lead Arrangers or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g) |
The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
30.4 |
|
30.5 |
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent or the Mandated Lead Arrangers as a trustee or fiduciary of any other person.
|
(b) |
Neither the Facility Agent nor the Mandated Lead Arrangers shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
30.6 |
|
30.7 |
|
30.8 |
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arrangers are obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
The Facility Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Facility Agent by any Lender or the identity of any such Lender for the purpose of sub-paragraph (ii) of paragraph (a) of Clause 10.2 (Market disruption).
|
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the
|
30.9 |
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
30.10 |
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
30.11 |
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent or the Mandated Lead Arrangers to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.
|
30.12 |
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
30.13 |
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d) |
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent), agree with the proposed successor Facility Agent amendments to this Clause
|
(e) |
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
(f) |
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g) |
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to the Servicing Banks) and this Clause 30 (The Facility Agent and the Mandated Lead Arrangers) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date).
|
(h) |
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (e) above shall be for the account of the Borrower.
|
(i) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
(j) |
The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:
|
(i) |
the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii) |
the information supplied by the Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii) |
the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
30.15 |
|
(a) |
Subject to Clause
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost in accordance with Clause 14.3 (Mandatory Cost).
|
(c) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
|
(d) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause
|
30.16 |
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
30.17 |
|
30.18 |
|
(a) |
Any amount payable to the Facility Agent under Clause 14.4 (Indemnity to the Servicing Banks), Clause 16 (Costs and Expenses) and Clause
|
30.19 |
|
30.20 |
|
30.21 |
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
31 |
|
31.1 |
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
31.2 |
|
(a) |
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b) |
The Parallel Debt of an Obligor:
|
(i) |
shall become due and payable at the same time as its Corresponding Debt;
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c) |
For purposes of this Clause
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased,
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)) to the extent permitted by applicable law, shall be applied in accordance with Clause
|
(f) |
This Clause
|
31.3 |
|
31.4 |
|
(a) |
The Security Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Facility Agent acting on the instructions of:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Facility Agent acting on the instructions of the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Facility Agent acting on the instructions of the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.
|
(iv) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A) |
Clause
|
(B) |
Clause
|
(e) |
If giving effect to instructions given by the Facility Agent acting on the instructions of the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i) |
it has not received any instructions as to the exercise of that discretion; or
|
(ii) |
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
(g) |
The Security Agent may refrain from acting in accordance with any instructions of the Facility Agent acting on the instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause
|
(i) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
31.5 |
|
(a) |
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e) |
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
31.6 |
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Obligor.
|
(b) |
The Security Agent shall not be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account.
|
31.7 |
|
31.8 |
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Facility Agent acting on the instructions of the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
31.9 |
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to Insider dealing or otherwise.
|
31.10 |
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
31.11 |
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security Agent, any Receiver or Delegate arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages.
|
31.12 |
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
31.13 |
|
(a) |
The Security Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Security Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent.
|
(d) |
The retiring Security Agent shall make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Borrower shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
|
(e) |
The Security Agent's resignation notice shall only take effect upon:
|
(i) |
the appointment of a successor; and
|
(ii) |
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
(f) |
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause
|
(g) |
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrower.
|
(h) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
31.14 |
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
31.15 |
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
31.16 |
|
31.17 |
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Transaction Security.
|
31.18 |
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Charged Property;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Facility Agent acting on the instructions of the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
31.19 |
|
31.20 |
|
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b) |
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.
|
(c) |
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
31.21 |
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
31.22 |
|
31.23 |
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Transaction Security have been fully and finally discharged; and
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Transaction Security; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause
|
31.24 |
|
31.25 |
|
31.26 |
|
(a) |
Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are attributable to, Security Property (for the purposes of this Clause
|
(b) |
Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
|
(i) |
under Clause 14.5 (Indemnity to the Security Agent) or any other indemnity in favour of the Security Agent under the Finance Documents to be indemnified out of the Charged Property; and
|
(ii) |
under any Finance Document to credit any moneys received or recovered by it to any suspense account.
|
(c) |
Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Agent.
|
(d) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause
|
31.27 |
|
(a) |
Before transferring any moneys to the Facility Agent under Clause
|
(i) |
deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable;
|
(ii) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and (iii)pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
(b) |
For the purposes of sub-paragraph (i) of paragraph (a) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be treated as due and payable, even if no demand has yet been served.
|
31.28 |
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
31.29 |
|
31.30 |
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
31.31 |
|
31.32 |
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
32 |
|
32.1 |
|
(a) |
Each Kexim Guaranteed Lender appoints the Kexim Guarantee Agent to act as its agent under and in connection with the Kexim Guarantee and the Finance Documents.
|
(b) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Kexim Guarantee Agent under, or in connection with, the Kexim Guarantee and the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(c) |
The Kexim Guarantee Agent shall promptly forward to each Kexim Guaranteed Lender the original or a copy of any document which is delivered to the Kexim Guarantee Agent for that Kexim Guaranteed Lender by any other Party or by the Kexim Guarantor.
|
(d) |
Except where the Kexim Guarantee or a Finance Document specifically provides otherwise, the Kexim Guarantee Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to consult with the Kexim Guarantor (where necessary) in relation to waivers, consents or approvals under or pursuant to the Finance Documents, including but not limited to any amendment, modification or waiver which:
|
(i) |
varies the dates for, or increases the amount of, or changes the currency or the priority of, any payment of any amount under the Finance Documents;
|
(ii) |
amends, extends or waives any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) of Clause 4.2 (Further conditions precedent) of the Facilities Agreement; or
|
(iii) |
imposes a new obligation on the Kexim Guarantor, or increases an existing obligation of the Kexim Guarantor under the Kexim Guarantee or any other Finance Document,
|
(f) |
The Kexim Guarantee Agent's duties under the Kexim Guarantee and the Finance Documents are solely mechanical and administrative in nature and the Kexim Guarantee Agent shall have no duties or obligations as agent other than those expressly conferred on it by the Finance Documents.
|
(g) |
Nothing in this Agreement or any Finance Document shall permit or oblige any Kexim Guaranteed Lender or the Kexim Guarantee Agent to act (or omit to act) in a manner that is inconsistent with any requirement under or in connection with the Kexim Guarantee.
|
(h) |
In case of any conflict between the Finance Documents and the Kexim Guarantee, the Kexim Guarantee shall, as between the Kexim Guaranteed Lenders and the Kexim Guarantor, prevail, and to the extent of such conflict or inconsistency, none of the Kexim Guaranteed Lenders or the Kexim Guarantee Agent shall assert to the Kexim Guarantor, the terms of the relevant Finance Documents.
|
32.2 |
|
32.3 |
|
(a) |
no information provided by it in writing to the Kexim Guarantee Agent or to the Kexim Guarantor prior to the date of this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission;
|
(b) |
it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the Kexim Guarantee Agent being in breach of any of its obligations in its capacity as Kexim Guarantee Agent under the Kexim Guarantee or any of the Finance Documents, or result in the Kexim Guaranteed Lenders being in breach of any of their respective obligations as insured parties under the Kexim Guarantee, or which would otherwise prejudice the Kexim Guarantee Agent's ability to make a claim on behalf of the Kexim Guaranteed Lenders under the Kexim Guarantee;
|
(c) |
it has reviewed the Kexim Guarantee and is aware of its provisions; and
|
(d) |
the representations and warranties made by the Kexim Guarantee Agent on its behalf under the Kexim Guarantee are true and correct with respect to it in all respects.
|
32.4 |
|
(a) |
All communication between the Kexim Guaranteed Lenders and the Kexim Guarantor shall be carried out through the Kexim Guarantee Agent.
|
(b) |
Each Kexim Guaranteed Lender acknowledges and agrees that it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with the Kexim Guarantee except through the Kexim Guarantee Agent and that all of the rights of the Kexim Guaranteed Lenders under the Kexim Guarantee shall only be exercised by the Kexim Guarantee Agent.
|
32.5 |
|
33 |
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
34 |
|
34.1 |
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause
|
34.2 |
|
34.3 |
|
34.4 |
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and
|
(b) |
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
34.5 |
|
(a) |
This Clause
|
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
35 |
|
35.1 |
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
35.2 |
|
35.3 |
|
35.4 |
|
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b) |
Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c) |
If the Facility Agent is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
|
(i) |
the Borrower shall on demand refund it to the Facility Agent; and
|
(ii) |
the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
35.5 |
|
(a) |
Subject to paragraph (b) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the following order:
|
(i) |
first, in or towards payment of any amounts then due and payable under any of the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document (except for the Hedging Agreements) but which the Facility Agent, by notice to the Borrower and the other Finance Parties, states in its opinion will or may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them;
|
(iii) |
thirdly, in or towards payment of any sum due but unpaid under the Hedging Agreements; and
|
(iv) |
lastly, any surplus shall he paid to the Borrower or to any other person who appears to be entitled to it.
|
(b) |
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i) |
first, in or towards payment pro rata of any due but unpaid Kexim Guarantee Premium and any unpaid fees, costs and expenses of the Facility Agent and the Security Agent under the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in or towards satisfaction pro rata of all amounts to any Finance Party under Clause 14.2(b) which amounts have been already paid by that Finance Party to the Facility Agent, Security Agent, any Receiver or Delegate (as the case may be) pursuant to Clause
|
(iii) |
thirdly, in or towards payment pro rata of any accrued interest or commission due to any Finance Party but unpaid under this Agreement;
|
(iv) |
fourthly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(v) |
fifthly , in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents (except for the Hedging Agreements); and
|
(vi) |
lastly, in or towards payment pro rata of any sum due but unpaid under the Hedging Agreements.
|
(c) |
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in sub-paragraphs (i) to (vi) of paragraph (b) above.
|
(d) |
Paragraphs (a), (b) and (c) above will override any appropriation made by an Obligor.
|
35.6 |
|
35.7 |
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
35.8 |
|
(a) |
Subject to paragraphs (b) and (c) below, dollar is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
35.9 |
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrower); and
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
35.10 |
|
(a) |
For the purpose of, or pending any payment to be made by any Servicing Bank under any Finance Document, such Servicing Bank may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
35.11 |
|
(a) |
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b) |
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c) |
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d) |
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties and any Obligors as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause
|
(e) |
the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
35.12 |
|
36 |
|
37 |
|
37.1 |
|
37.2 |
|
(a) |
in the case of the Borrower, that specified in Part A of Schedule 1 (the Borrower);
|
(b) |
in the case of each Lender or any other Obligor, that specified in Part B of Schedule 1 (the Guarantors) or Part C of Schedule 1 (the Lenders), respectively, or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c) |
in the case of the Facility Agent, that specified in Part D of Schedule 1 (The Servicing Banks); and
|
(d) |
in the case of the Security Agent, that specified in Part D of Schedule 1 (The Servicing Banks),
|
37.3 |
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i) |
if by way of fax, when received in legible form; or
|
(ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post with postage prepaid in an envelope addressed to it at that address,
|
(b) |
Any communication or document to be made or delivered to a Servicing Bank will be effective only when actually received by that Servicing Bank and then only if it is expressly marked for the attention of the department or officer of that Servicing Bank specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Bank shall specify for this purpose).
|
(c) |
All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
37.4 |
|
(a) |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 37.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.
|
37.5 |
|
(a) |
It is recognised that one of the main methods of communication between the Facility Agent and the other Finance Parties will be by posting information and documentation onto an electronic website designated by the Facility Agent.
|
(b) |
Subject to sub-paragraph (a) above, any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means, to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(c) |
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
(d) |
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
(e) |
Each Party confirms that it is aware of (i) the fact that information by way of electronic exchange is transmitted unencrypted over a publicly accessible network, and (ii) the risks connected therewith (including but not limited to the risk that a "bank relation" (as such term is used in the context of Swiss banking secrecy legislation) could be identified).
|
37.6 |
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
38 |
|
38.1 |
|
38.2 |
|
38.3 |
|
38.4 |
|
39 |
|
40 |
|
41 |
|
42 |
|
43 |
|
43.1 |
|
(a) |
Subject to Clause
|
(b) |
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 43 (Amendments and Waivers).
|
43.2 |
|
(a) |
An amendment or waiver that has the effect of changing or which relates to:
|
(i) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
(ii) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(iii) |
a reduction in the Applicable Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(iv) |
an increase in or extension of any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
(v) |
a change to any Obligor;
|
(vi) |
any provision which expressly requires the consent of all the Lenders;
|
(vii) |
this Clause 43 (Amendments and Waivers);
|
(viii) |
any change to the preamble (Background), Clause 2 (The Facilities ), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8 (Interest), Clause 25 (
|
(ix) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document, save where the provisions of Clauses
|
(x) |
the nature or scope of the guarantee and indemnity granted under Clause 17 (Guarantee and Indemnity);
|
(b) |
An amendment or waiver which relates to the rights or obligations of a Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or a Mandated Lead Arranger (each in their capacity as such) may not be effected without the consent of that Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or, as the case may be, the Mandated Lead Arranger.
|
44 |
4
|
44.1 |
4
|
44.2 |
4
|
(a) |
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b) |
to any person:
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii) |
to whom or for whose benefit that Finance Party chargers, assigns or otherwise creates Security (or may do so) pursuant to Clause
|
(viii) |
who is a Party; or
|
(ix) |
with the consent of a Guarantor;
|
(A) |
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is a professional adviser and is subject
|
(B) |
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c) |
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information by entering into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Finance Party;
|
(d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors.
|
(e) |
Kexim may without the prior consent of any Obligor publish key information concerning the Kexim Guarantee, this Agreement and the transactions contemplated thereby, including but not limited to key information regarding the currency, amount and purpose of the Total Commitments, the Loan and the amount guaranteed by Kexim, the name of the Parties and their country of residence, the name of the Builder, the type of drillship, the date of this Agreement and the issuance of the Kexim Guarantee.
|
(f) |
Without prejudice to the above, the Borrower will procure that each Obligor (and its successors) hereby releases each Finance Party and its Affiliates, and each Finance Party hereby releases the other Finance Parties and their Affiliates from any confidentiality obligations and restrictions based on applicable Swiss bank secrecy rules with regard to any data and information relating to this Agreement, the other Finance Documents and the exercise of the respective rights or fulfilment of the respective obligations of each Finance Party.
|
44.3 |
4
|
44.4 |
4
|
44.5 |
4
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause
|
44.6 |
4
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceased to be a Finance Party.
|
45 |
4
|
46 |
BAIL-IN
|
46.1 |
Contractual recognition of bail-in
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
47 |
|
48 |
|
48.1 |
4
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause
|
48.2 |
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints lnce Process Agents Ltd of
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
Name
|
Place of Incorporation
|
Registration number
|
Address for Communication
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
56858
|
Drillship Alonissos Stock Trust, 00 Willmington Trust Company, 1100 N. Market Street,
Wilmington, DE 19890-1603,
United States
|
Name
|
Place of Incorporation
|
Registration no.
|
Address for Communication
|
|
|
|
|
Drillship Alonissos Owners Inc. (the Drillship Owner)
|
Marshall Islands
|
56857
|
c/o Willmington Trust Company,
1100 N. Market Street,
Wilmington, DE 19890-1603,
United States
|
Name of Lender
|
Commitment
|
Address for Communication
|
THE ORIGINAL COMMERCIAL LENDERS
|
||
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTS 33, Attn.
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention:
E-mail:
Tel: +41 61 266 7494 / +41 61 266 7895
Fax: +41 61 266 7939
Administration matters:
SGTS 33, Attn.
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention:
E-mail: ioannis.efsathopoulos@credit-suisse.com
Tel: +41 61 266 7494
Fax: +41 61 266 7939
Rollover, fees and payments:
SGTS 33, Attn. Edina Aganovic
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: Edina Aganovic
E-mail: edina.aganovic@credit-suisse.com
Tel: +41 61 266 74 90
Fax: +41 61 266 7939 |
DNB Bank ASA
|
USD 65,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjprvika
M-14 S, 0021 Oslo, Norway Attention: Anne-Lise Iversen, Credit Middle
|
Office and Agency
E-mail: anne-lise.iversen@dnb.no Tel: + 47 48014249
Fax: + 47 22482894 |
||
DVB Bank SE (Amsterdam Branch)
|
USD 65,000,000
|
Credit matters:
DVB Bank SE, Ballindamm 6, 20095
Hamburg, Germany
Attention: Jens Taubken, Offshore Finance
E-mail: Jens.Taubken@dvbbank.com
Tel: +49 40 3080 0427
Fax: +49 40 3080 0412
Mobile: +49 174 184 0413
Administration matters:
DVB Bank SE, WTC Schiphol Tower F 6th
Floor, Schiphol Boulevard 255, 1118 BH Schiphol, The Netherlands
Attention: Imogen Hall/Sona Krijger-Dolbakyan, Transaction and Loan Services
E-mail: TM.amsterdam-hamburg@dvbbank.com
Tel: +44 207 2564 446 / +31 88 399 7927
Fax: +44 207 2564 352 / +31 88 299 8163
Rollover, fees and payments:
DVB Bank SE, Park House, 16-18 Finsbury Circus, London EC2M 7EB, United Kingdom
Attention: Adam Liley, Transaction and Loan Services
E-mail: tls.london@dvbbank.com
Tel: +44 207 2564 390
Fax: +44 207 2564 352
|
Norddeutsche Landesbank Girozentrale
|
USD 15,000,000
|
Credit matters:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mrs. Corinna Welke, Shipping & Aircraft Finance Dept.
E-mail: corinna.welke@web.de
Tel: +49 511 361 6848
Fax: +49 511 361 4785
Administration matters:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mr. Stefan Schulz, Shipping &
Aircraft Finance Dept.
E-mail: stefan.schulz@nordlb.de
Tel: +49 511 361 5584
Fax: +49 511 361 4785
|
Rollover, fees and payments:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mr. Andre Schulz, Shipping & Aircraft Finance Dept.
E-mail: andre.schulz@nordlb.de
Tel: +49 511 361 5334
Fax: +49 511 361 4785
|
||
Total Commercial Facility Loan Commitment: USD 175,000,000
|
||
THE ORIGINAL KEXIM GUARANTEED LENDERS
|
||
DNB Bank ASA
|
USD 95,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjorvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit Middle Office and Agency
E-mail: anne-Iise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTE1
Uetlibergstr. 231
CH-8045 Zurich
Attention:
E-mail: ursula.rickli@credit
Tel: +41 44 333 53 56 /+41 44 333 53 38
Fax: +41 44 333 21 04
Mobile: +41 79 576 1648
Administration matters:
Uetlibergstr. 231
CH-8045 Zurich
Attention:
E-mail: portfolio.admin@creditsuisse.com
Tel: + 41 44 333 85 36
Fax: +41 44 333 21 04
Rollover, fees and payments:
Uetlibergstr. 231
CH-8045 Zurich
Attention:
|
E-mail: cp-exfi.cso@credit-suisse.com
Tel: +41 44 333 63 93
Fax: +41 44 333 79 80
|
||
Total Kexim Guaranteed Facility Loan Commitment: USD 125,000,000
|
||
KEXIM
|
||
The Export−Import Bank of Korea
|
USD 175,000,000
|
BIFC 20th floor, Munhyeongeumyung-ro 40,
Nam-gu, Busan 608-828,
Korea
Attention: Mr. Seungheon Baek / Ms. Mibo Ahn, Maritime Project Finance Department E-mail: shbaek@koreaexim.go.kr / miboahn@koreaexim.go.kr
Tel: +82-51-922-8838 / +82-51-922-8837
Fax: +82-51-922-8849
Mobile: +82-10-8842-3462 / +82-10-8872-2889
|
Total Kexim Direct Facility Loan Commitment: USD 175,000,000
|
Facility Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum BjOrvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
Security Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum BjOrvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
1 |
Obligors
|
1.1 |
Articles of incorporation and Certificate of incorporation (or similar).
|
1.2 |
By-laws (or similar) (if applicable).
|
1.3 |
Updated Good Standing Certificate.
|
1.4 |
A copy of a resolution of the board of directors and shareholders (if applicable) of each Obligor:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.5 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party (notarised and apostilled if requested by the Facility Agent).
|
1.6 |
Passport photocopies for all Directors certified by the legal advisor of the Borrower.
|
1.7 |
A Directors/Secretary's Certificate, certifying and attaching the constitutional documents and authorisations referred to in paragraph 1.1 — 1.5 above and
|
(a) |
certifying that each copy document is correct, complete and in full force and effect as at a the date of this Agreement;
|
(b) |
certifying the identity of its directors, officers and shareholder(s); and
|
(c) |
confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
|
1.8 |
A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies.
|
2 |
Finance Documents
|
2.1 |
This Agreement duly executed.
|
2.2 |
The Fee Letters duly executed.
|
2.3 |
The Hedging Agreements, if applicable.
|
2.4 |
The Assignment of Hedging Agreements, if applicable.
|
2.5 |
The Assignment of Intra-Group Loans, if applicable.
|
2.6 |
The Account Security duly executed, together with notices to and acknowledgements from the Account Bank.
|
2.7 |
The Shares Security duly executed, together with (if applicable) original share certificates, stock powers, undated directors' letters of resignation and irrevocable proxies or such other deliverables as required by the legal advisers to the Finance Parties.
|
3 |
Building Contract
|
3.1 |
Copies of the Building Contract and of all documents signed or issued by the Drillship Owner or the Builder (or both of them) under or in connection with such agreement.
|
3.2 |
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution by the Drillship Owner of the Building Contract and of all documents to be executed by such party.
|
4 |
|
4.1 |
A copy of the
|
4.2 |
A certificate of an authorised signatory of the Borrower that the
|
4.3 |
A summary of the
|
4.4 |
Board resolutions and powers of attorneys evidencing the due authorisation and execution by the Drillship Owner of all documents to be executed by it under or in connection with the
|
5 |
Other documents and evidence
|
5.1 |
Evidence that any process agent referred to in Clause 46
|
5.2 |
If relevant, confirmation that any withholding tax will be paid or application to tax authorities is or will be sent.
|
5.3 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or any related document or for the validity and enforceability of any Finance Document and/or related document.
|
5.4 |
The Original Financial Statements and a Compliance Certificate.
|
5.5 |
To the extent applicable, such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by the Finance Documents, including without limitation a written statement of each Obligor listing the natural persons
|
5.6 |
Evidence that any fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid.
|
6 |
Kexim documents
|
6.1 |
A duly executed original of the Kexim Guarantee on terms satisfactory to the Kexim Guarantee Agent and all the Kexim Guaranteed Lenders.
|
6.2 |
Evidence that the first advance payment of the Kexim Guarantee Premium in relation to the Kexim Guarantee and any costs and expenses which are then due and payable to Kexim has been paid in accordance with the terms of the Kexim Guarantee.
|
6.3 |
A legal opinion of Kim & Chang, Korean legal advisers to the Kexim Guaranteed Lenders, in such form as agreed between that legal adviser and the Kexim Guaranteed Lenders.
|
7 |
Legal opinions
|
7.1 |
A legal opinion of Wikborg Rein, legal advisers to the Finance Parties in Norway, in such form as agreed between that legal adviser and the Finance Parties.
|
7.2 |
The legal opinions to be delivered under paragraph 4 of Part B of this Schedule 2 (Conditions Precedent) being in agreed form.
|
7.3 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
|
1 |
Obligors
|
1.1 |
If required, updated Good Standing Certificate for the Obligors.
|
2 |
Finance Documents
|
2.1 |
The Mortgage duly executed, together with documentary evidence that the Mortgage has been duly registered as a valid first preferred ship mortgage in accordance with the laws of the jurisdiction of the Approved Flag.
|
2.2 |
The General Assignment duly executed and perfected.
|
2.3 |
The Assignment of
|
2.4 |
The Manager's Undertaking.
|
3 |
Drillship
|
3.1 |
Documentary evidence that the Drillship:
|
(a) |
has been unconditionally delivered by the Builder to, and accepted by, the Drillship Owner under the Building Contract, including but not limited to a copy of the protocol of delivery and acceptance for the Drillship with no material recommendations or adverse notations, and that the full purchase price payable (including the equity payable) and all other sums due to the Builder under the Building Contract, other than the sums to be financed pursuant to the Utilisation have been paid to the Builder;
|
(b) |
is definitively and permanently registered in the name of the Drillship Owner under the Approved Flag;
|
(c) |
is in the absolute and unencumbered ownership of the Drillship Owner save as contemplated by the Finance Documents;
|
(d) |
maintains the Approved Classification with the Approved Classification Society; and
|
(e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
3.2 |
Documents establishing that the Drillship will, as from the Utilisation Date, be managed by the Manager, together with copies of the Manager's Document of Compliance and of the Drillship's Safety Management Certificate (together with any other details of the applicable safety management system which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Drillship including without limitation an ISSC.
|
3.3 |
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
|
3.4 |
Evidence of the Market Value of the Drillship (based on valuations obtained no earlier than 30 days prior to the Delivery Date), confirming that the Loan is no more than 70 per cent, of the Market Value of the Drillship.
|
4 |
Legal opinions
|
4.1 |
A legal opinion of Watson Farley & Williams, London, legal advisers to the Finance Parties in England, in such form as agreed between that legal adviser and the Finance Parties.
|
4.2 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Finance Parties in the Marshall Islands, in such form as agreed between that legal adviser and the Finance Parties.
|
4.3 |
A legal opinion of Watson Farley & Williams, Paris, legal advisers to the Finance Parties in France, in such form as agreed between that legal adviser and the Finance Parties.
|
4.4 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
|
From:
|
Drillship Alonissos Shareholders Inc.
|
|
To:
|
DNB Bank ASA (the Facility Agent)
|
|
Dated:
|
[•]
|
1 |
We refer to the Agreement. This is the Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2 |
We wish to utilise the Commercial Facility Loan, Kexim Direct Facility Loan and Kexim Guaranteed Facility Loan:
|
Proposed Utilisation Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
Amount (divided pro rata across the Facilities):
|
[•] or, if less, the Available Facility
|
Interest Period:
|
[•]
|
3 |
We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent) as they relate to the Advance to which this Utilisation Request refers of the Agreement is satisfied on the date of this Utilisation Request.
|
4 |
The proceeds of this Advance should be credited to [account].
|
5 |
This Utilisation Request is irrevocable.
|
From:
|
Drillship Alonissos Shareholders Inc.
|
|
To:
|
DNB Bank ASA (the Facility Agent)
|
|
Dated:
|
[•]
|
1 |
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2 |
We request that the next Interest Period for the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] be [•].
|
3 |
This Selection Notice is irrevocable.
|
To: |
DNB Bank ASA (the Facility Agent)
|
From: |
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
Dated: |
[•]
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2 |
We refer to Clause
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause
|
(b) |
The proposed Transfer Date is [•].
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause
|
4 |
To the extent that this Transfer Certificate constitutes a novation under English law, then for the purpose of the Assignment of
|
(a) |
the novation created by this Transfer Certificate constitutes a novation as described by article 1271 of the French Civil Code (Code Civil); and
|
(b) |
all security interests constituted under the Assignment of
|
5 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6 |
Subject to paragraph 4 above, this Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
7 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By:[•]
|
By:[•]
|
To: |
DNB Bank ASA (the Facility Agent) and Driliship Alonissos Shareholders Inc. as Borrower, for and on behalf of each Obligor
|
From: |
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
|
Dated: |
[•]
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2 |
We refer to Clause
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
3 |
The proposed Transfer Date Is [•].
|
4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause
|
7 |
This Asignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause
|
8 |
To the extent that this Assignment Agreement constitutes an assignment of rights and obligations under English law, then for the purpose the Assignment of
|
9 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
10 |
Subject to paragraph 8 above, this Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
11 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
To: |
DNB Bank ASA (the Facility Agent)
|
From: |
|
Dated: |
[•] [To be delivered no later than 120/ 60 days after each reporting date]
|
1 |
Minimum credit balance on Retention Account, Clause 20.2
|
2 |
[
|
3 |
|
4 |
|
5 |
|
6 |
The ratio of the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments was [ ], while the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments shall not be less than 1.25:1.]
|
|
|
|
|
|
7 |
|
|
||||
|
||||
|
|
|
||||
|
||||
|
|
By:
|
||||
Name:
|
||||
Title:
|
[authorised officer]
|
By:
|
||||
Name:
|
||||
Title:
|
[authorised officer]
|
To: |
DNB Bank ASA (the Facility Agent)
|
From: |
Drillship Alonissos Shareholders Inc.
[•] as Additional Guarantor |
Dated: |
[•]
|
1 |
[•], a company duly incorporated under the laws of [•], agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause
|
2 |
This Accession Letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accession Letter.
|
3 |
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
From:
|
Drillship Alonissos Shareholders Inc.
|
To:
|
DNB Bank ASA (the Facility Agent)
|
Dated:
|
[•]
|
1 |
We refer to the Agreement. This is a [Prepayment][Cancellation] Notice. Terms defined in the Agreement have the same meaning in this [Prepayment][Cancellation] Notice unless given a different meaning in this [Prepayment][Cancellation] Notice.
|
2 |
[We wish to [prepay the whole Loan] [make a prepayment under the [Loan] [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan]]:
|
Proposed Prepayment Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
[•]
|
3 |
[We wish to cancel [the Total Commitments] [unutilised amounts available under the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] in an amount of [•] (in relation to any voluntary cancellation being an amount of minimum USD 10,000,000)].
|
4 |
This [Prepayment][Cancellation] Notice is irrevocable.
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of the Utilisation Request))
|
Three Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of the Utilisation Request)) or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
|
|
Delivery of a duly completed Selection Notice (Clause 9.1 (Selection of Interest Periods))
|
Three Business Days before the expiry of the preceding Interest Period (Clause 9.1 (Selection of Interest Periods))
|
|
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation)
|
Three Business Days before the intended Utilisation Date or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
|
|
LIBOR is fixed
|
Quotation Day as of 11:00 am London time
|
BORROWER
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
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)
|
||
Witness' address:
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)
|
||
|
|||
|
)
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||
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)
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||
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)
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||
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)
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||
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)
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||
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)
|
||
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)
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||
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)
|
||
GUARANTOR and DRILLSHIP OWNER
|
|||
SIGNED by
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
||
DRILLSHIP ALONISSOS OWNERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature:
|
)
|
||
Witnesss' name:
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)
|
||
Witness' address:
|
)
|
COMMERCIAL LENDERS
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
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)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
CREDIT SUISSE AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
KEXIM GUARANTEED LENDERS
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
CREDIT SUISSE AG
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
KEXIM
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
MANDATED LEAD ARRANGERS
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DND BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
HEDGE COUNTERPARTIES
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK SE (AMSTERDAM BRANCH)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
KEXIM GUARANTEE AGENT
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
FACILITY AGENT
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
|
SECURITY AGENT
|
||
SIGNED by
|
)
|
|
duly authorised
|
)
|
|
for and on behalf of
|
)
|
|
DNB BANK ASA
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
|
Witnesss' name:
|
)
|
|
Witness' address:
|
)
|
Clause
|
Page
|
|
Section 1 Interpretation
|
3
|
|
1
|
Definitions and Interpretation
|
3
|
Section 2 The Facilities
|
28
|
|
2
|
The Facilities
|
28
|
3
|
Purpose
|
28
|
4
|
Conditions of Utilisation
|
29
|
Section 3 Utilisation
|
30
|
|
5
|
Utilisation
|
30
|
Section 4 Repayment, Prepayment and Cancellation
|
32
|
|
6
|
Repayment
|
32
|
7
|
Prepayment and Cancellation
|
33
|
Section 5 Costs of Utilisation
|
36
|
|
8
|
Interest
|
36
|
9
|
Interest Periods
|
39
|
10
|
Changes to the Calculation of Interest
|
39
|
11
|
Fees
|
40
|
Section 6 Additional Payment Obligations
|
42
|
|
12
|
Tax Gross Up and Indemnities
|
42
|
13
|
Increased Costs
|
46
|
14
|
Other Indemnities
|
47
|
15
|
Mitigation by the Lenders
|
50
|
16
|
Costs and Expenses
|
50
|
Section 7 Guarantee
|
52
|
|
17
|
Guarantee and Indemnity
|
52
|
Section 8 Representations, Undertakings and Events of Default
|
55
|
|
18
|
Representations
|
55
|
19
|
Information Undertakings
|
61
|
20
|
Financial Covenants
|
64
|
21
|
Financial covenants after the Interim Maturity Date
|
64
|
22
|
General Undertakings
|
65
|
23
|
Insurance Undertakings
|
72
|
24
|
Drillship Undertakings
|
76
|
25
|
Security Cover after the Interim Maturity Date
|
81
|
26
|
Accounts and Application of Earnings and other amounts
|
82
|
27
|
Events of Default
|
85
|
Section 9 Changes to Parties
|
90
|
|
28
|
Changes to the Lenders
|
90
|
29
|
Changes to the Obligors
|
95
|
Section 10 The Finance Parties
|
96
|
|
30
|
The Facility Agent and the Mandated Lead Arrangers
|
96
|
31
|
The Security Agent
|
105
|
32
|
Kexim Guarantee Agent
|
118
|
33
|
Conduct of Business by the Finance Parties
|
120
|
34
|
Sharing among the Finance Parties
|
121
|
Section 11 Administration
|
123
|
|
35
|
Payment Mechanics
|
123
|
36
|
Set-Off
|
126
|
37
|
Notices
|
126
|
38
|
Calculations and Certificates
|
128
|
39
|
Partial Invalidity
|
129
|
40
|
Remedies and Waivers
|
129
|
41
|
Settlement or Discharge Conditional
|
129
|
42
|
Irrevocable Payment
|
129
|
43
|
Amendments and Waivers
|
129
|
44
|
Confidentiality
|
130
|
45
|
Counterparts
|
133
|
46
|
Bail-In
|
133
|
Section 12 Governing Law and Enforcement
|
134
|
|
47
|
Governing Law
|
134
|
48
|
Enforcement
|
134
|
Schedule 1 The Parties
|
135
|
|
Schedule 2 Conditions Precedent
|
142
|
|
Schedule 3 Requests
|
147
|
|
Schedule 4 Form of Transfer Certificate
|
149
|
|
Schedule 5 Form of Assignment Agreement
|
152
|
|
Schedule 6 Form of Compliance Certificate
|
154
|
|
Schedule 7 Form of Accession Letter
|
156
|
|
Schedule 8 Repayments
|
157
|
|
Schedule 9 Form of Prepayment/ Cancellation Notice
|
||
Schedule 10 Timetables
|
160
|
|
Schedule 11 Corporate Structure
|
161
|
|
Execution Pages
|
162
|
(1) |
DRILLSHIP ALONISSOS SHAREHOLDERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56858 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
|
(2) |
DRILLSHIP ALONISSOS OWNERS INC., a corporation incorporated under the laws of the Marshall Islands with registered number 56857 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as guarantor (the "Guarantor" or the "Original Guarantor");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original commercial lenders (the "Original Commercial Lenders");
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original lenders under the Kexim Guaranteed Facility (the "Original Kexim Guaranteed Lenders");
|
(5) |
THE EXPORT—IMPORT BANK OF KOREA of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 150-996, Republic of Korea as lender under the Kexim Direct Facility ("Kexim");
|
(6) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as mandated lead arrangers (the "Mandated Lead Arrangers");
|
(7) |
DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as hedge counterparties (the "Hedge Counterparties");
|
(8) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent for the Kexim Guaranteed Lenders (the "Kexim Guarantee Agent");
|
(9) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as bookrunner (the "Bookrunner") and coordinator (the "Coordinator");
|
(10) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and
|
(11) |
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent").
|
(A) |
By the facility agreement dated 13 February 2015 the Lenders agreed to make available to the Borrower facilities of up to USD 475,000,000 in aggregate for the purposes of financing post-delivery no more than 70 per cent. of the Market Value of the Drillship on or around the Delivery Date, which was constructed by the Builder for, and purchased by, the Drillship Owner pursuant to the Building Contract.
|
(B) |
By the Amending and Restating Agreement, the Finance Parties agreed to certain amendments to the facility agreement and the other Finance Documents.
|
(C) |
This Agreement sets out the terms and conditions of the facility agreement as amended and restated by the Amending and Restating Agreement.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
the Commercial Facility Margin for the Commercial Facility;
|
(b) |
the Kexim Direct Facility Margin for the Kexim Direct Facility; and
|
(c) |
the Kexim Guaranteed Facility Margin for the Kexim Guaranteed Facility.
|
(a) |
the amount of its participation in all Advances made; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed Utilisation Date.
|
(a) |
in relation to an EEA Member Country which has implemented, or which at any lime implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
(b) |
in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
|
(a) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel Ill: A global regulatory framework for more resilient banks and
|
(b) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(c) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(a) |
the interest calculated on the basis of LIBOR only (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Facility or an Unpaid Sum to the last day of the current Interest Period in respect of the Facility or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a) |
cash in hand legally and beneficially owned by it; and
|
(b) |
cash deposits legally and beneficially owned by it, and which are deposited with (i) a Lender, (ii) any other deposit taking institution having a rating of at least A- from Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe acceptable to the Facility Agent (acting with the authorisation of the Majority Lenders) or (iii) any other bank or financial institution approved by the Facility Agent (acting with the authorisation of the Majority Lenders) which in each case:
|
(i) |
is free from any Security, other than pursuant to the Transaction Security;
|
(ii) |
is otherwise at the free and unrestricted disposal of the member of the Restricted Group who owns it; and
|
(iii) |
in the case of cash deposits held by a member of the Restricted Group other than an Obligor, is (in the opinion of the Facility Agent, based upon such documents and evidence as the Facility Agent may require the Borrower to provide in order to form the basis of such opinion) capable or, upon the occurrence of an Event of Default under this Agreement, would become capable of being paid without restriction to an Obligor within five Business Days of its request or demand therefore either by way of a dividend or by way of a repayment of principal (or the payment of interest thereon) in respect of Intra-Group Loan from the relevant Obligor to that member of the Restricted Group.
|
(a) |
any investment in marketable debt obligations issued or guaranteed by (i) a government or (ii) an instrumentality or agency of a government and in respect of (i) and (ii) having a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
|
(b) |
commercial paper (debt obligations) not convertible or exchangeable to any other security:
|
(i) |
for which a recognised trading market exists;
|
(ii) |
issued by an issuer incorporated in the United States of America, the United Kingdom or Norway;
|
(iii) |
which matures within one year after the relevant date of calculation; and
|
(iv) |
which has a credit rating of at least A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe;
|
(c) |
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (b) above and (iii) can be turned into cash on not more than five days' notice; or
|
(d) |
any other debt security approved by the Facility Agent (acting with the authorisation of the Majority Lenders),
|
(a) |
in relation to an Original Commercial Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Commercial Lender Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Commercial Lender, the amount of any Commercial Lender Commitment transferred to it under this Agreement,
|
(a) |
any Original Commercial Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Commercial Facility in accordance with Clause 28.1 (Assignments and transfers by the Lenders),
|
(a) |
in relation to a Commercial Lender, its Commercial Lender Commitment;
|
(b) |
in relation to Kexim or any other Lender under the Kexim Direct Facility, its Kexim Commitment;
|
(c) |
in relation to a Kexim Guaranteed Lender, its Kexim Guaranteed Lender Commitment.
|
(a) |
any member of the Restricted Group or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Restricted Group or any of its advisers,
|
(i) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 44 (Confidentiality)); or
|
(ii) |
is identified in writing at the time of delivery as non-confidential by any member of the Restricted Group or any of its advisers; or
|
(iii) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance party is aware, unconnected with the Restricted Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a) |
the following, save to the extent that any of them is, with the prior written consent of the Majority Lenders, pooled or shared with any other person:
|
(i) |
all freight, hire and passage moneys;
|
(ii) |
compensation payable to that Obligor or the Security Agent in the event of requisition of the Drillship for hire;
|
(iii) |
remuneration for salvage and towage services;
|
(iv) |
demurrage and detention moneys;
|
(v) |
damages for breach (or payments for variation or termination) of any Charter;
|
(vi) |
all moneys which are at any time payable under any Insurances in respect of loss of hire;
|
(vii) |
all monies which are at any time payable to that Obligor in respect of general average contribution; and
|
(b) |
if and whenever the Drillship is employed on terms whereby any moneys falling within paragraphs (i) to (vii) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Drillship.
|
(a) |
an account in the name of the Borrower, the Drillship Owner and/or any Intra-Group Charterer with the Account Bank designated "Earnings Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Earnings Account for the purposes of this Agreement,
|
(a) |
any release, emission, spill or discharge into the Drillship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from the Drillship; or
|
(b) |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than the Drillship and which involves a collision between the Drillship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Drillship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Drillship and/or any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from the Drillship and in connection with which the Drillship is actually or potentially liable to be arrested and/or where any Obligor and/or the Manager, Client or any other operator of the Drillship is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b) |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
|
(c) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
|
(a) |
this Agreement;
|
(b) |
any Fee Letter;
|
(c) |
any Hedging Agreement;
|
(d) |
the Trust Agreement;
|
(e) |
the Put and Call Option Agreement;
|
(f) |
any Account Security;
|
(g) |
any Shares Security;
|
(h) |
the Mortgage;
|
(i) |
any General Assignment;
|
(j) |
the Pledge of Beneficial Interest in Trust;
|
(k) |
any Assignment of Put and Call Option Agreement;
|
(l) |
any Assignment of Hedging Agreements;
|
(m) |
the Assignment of Total Drilling Contract;
|
(n) |
any Assignment of Satisfactory Drilling Contract;
|
(o) |
any Assignment of Intra-Group Loan;
|
(p) |
the Manager's Undertaking;
|
(q) |
any other document (whether or not it creates Security) which is executed as security for, or for the purpose of establishing a priorities subordination arrangement in relation to, the Secured Liabilities; and
|
(r) |
any other document designated as such by the Facility Agent and the Borrower.
|
(a) |
moneys borrowed;
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d) |
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the applicable Accounting Principles, be treated as a finance or capital lease;
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
|
(h) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
(i) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a) |
all policies and contracts of insurance, including entries of the Drillship in any protection and indemnity or war risks association, effected in respect of the Drillship, its Earnings or otherwise in relation to the Drillship; and
|
(b) |
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium.
|
(a) |
in relation to Kexim, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Kexim Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any Lender under the Kexim Direct Facility, the amount of any Kexim Commitment transferred to it under this Agreement,
|
(a) |
in relation to an Original Kexim Guaranteed Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (the Lenders) and the amount of any other Kexim Guaranteed Lender Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Kexim Guaranteed Lender, the amount of any Kexim Guaranteed Lender Commitment transferred to it under this Agreement,
|
(a) |
any Original Kexim Guaranteed Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Kexim Guaranteed Facility in accordance with Clause 28.1 (Assignments and transfers by the Lenders),
|
(a) |
Kexim;
|
(b) |
the Original Kexim Guaranteed Lenders;
|
(c) |
the Original Commercial Lenders; and
|
(d) |
any New Lender,
|
(a) |
the applicable Screen Rate; or
|
(b) |
if no Screen Rate is available for the currency of that Advance, the Loan, that part of the Loan or that Unpaid Sum), the Reference Bank Rate,
|
(a) |
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66% per cent. of the Total Commitments; or
|
(b) |
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66% per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the Loan immediately before repayment or prepayment in full aggregate more than 66% per cent. of the Loan immediately before such repayment,
|
(a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of a Manager; or appoint or remove all, or the majority, of the directors or other equivalent officers of either Manager; give directions with respect to the operating and financial policies of either Manager with which the directors or other equivalent officers of either Manager are obliged to comply; and/or
|
(b) |
the holding beneficially of more than 50 per cent. of the issued share capital of a Manager (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
|
(a) |
as at a date not more than 14 days previously (or, in relation to the valuations delivered pursuant to paragraph 3.4 of Part B of Schedule 2 (Conditions Precedent), 30 days previously);
|
(b) |
by an Approved Broker;
|
(c) |
with or without physical inspection of the Drillship (as the Facility Agent may require); and
|
(d) |
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any charter contract,
|
(a) |
the business, operations, property, condition (financial or otherwise) or prospects of any member of the Restricted Group or the Restricted Group as a whole; or
|
(b) |
the ability of any Obligor to perform its obligations under any Finance Document; or
|
(c) |
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a) |
an account in the name of the Drillship Owner with the Account Bank designated "Operating Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Operating Account for the purposes of this Agreement.
|
(a) |
Security created by the Finance Documents;
|
(b) |
Security disclosed in writing to the Facility Agent prior to the date of this Agreement and acceptable to the Facility Agent;
|
(c) |
liens for unpaid master's and current crew's wages in accordance with usual maritime practice;
|
(d) |
liens for salvage;
|
(e) |
any ship repairer's or outfitter's possessory lien arising by operation of law and not exceeding USD 2,500,000; and
|
(f) |
any other liens incurred in the ordinary course of operating such Drillship by operation of law and securing obligations not more than 30 days overdue and not exceeding USD 2,500,000.
|
(a) |
its jurisdiction of incorporation;
|
(b) |
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party is situated;
|
(c) |
any jurisdiction where it conducts its business; and
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party.
|
(a) |
each member of the Restricted Group; and
|
(b) |
each of its directors and officers, employees, agents and representatives.
|
(a) |
any expropriation, confiscation, requisition or acquisition of the Drillship, whether for full consideration, a consideration less 'than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension) unless it is within 30 days redelivered to the full control of the Drillship Owner; and
|
(b) |
any arrest, capture, seizure or detention of the Drillship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the Drillship Owner.
|
(a) |
listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person);
|
(b) |
located in or incorporated under the laws of any country or territory that is the target of comprehensive, country- or territory-wide Sanctions which attach legal effect to being located in or incorporated under the laws of any country or territory that is the target of comprehensive, country or territory-wide Sanctions; or
|
(c) |
directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above.
|
(a) |
an account in the name of the Borrower with the Account Bank designated "Retention Account"; or
|
(b) |
any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Retention Account for the purposes of this Agreement.
|
(a) |
the lists of Sanctions designations and/or targets maintained by any Sanctions Authority; and/or
|
(b) |
any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, from time to time.
|
(a) |
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;
|
(b) |
all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Secured Parties;
|
(c) |
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
(d) |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
|
(i) |
rights intended for the sole benefit of the Security Agent; and
|
(ii) |
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
(a) |
has direct or indirect control; or
|
(b) |
owns directly or indirectly more than fifty (50) per cent (votes and/or capital),
|
(a) |
strictly until the completion of the scope of work currently undertaken by Acqualis Offshore, Acqualis Offshore; and
|
(b) |
thereafter, any other firm appointed by the Facility Agent (acting in the instructions of the Majority Lenders) in consultation with the Borrower.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of the Drillship; or
|
(b) |
any Requisition.
|
(a) |
in the case of an actual loss of the Drillship, the date on which it occurred or, if that is unknown, the date when the Drillship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Drillship, the earlier of:
|
(i) |
the date on which a notice of abandonment is given to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower or the Drillship Owner with the Drillship's insurers in which the insurers agree to treat the Drillship as a total loss; and
|
(c) |
in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
a person which is resident for tax purposes in the US; or
|
(b) |
a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) or any law in force from time to time in Switzerland relating to value added tax; and
|
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii) |
any similar or analogous powers under that Bail-In Legislation.
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, a reference in this Agreement to:
|
(i) |
the "Account Bank", the "Facility Agent", a "Mandated Lead Arranger", the "Security Agent", any "Hedge Counterparty", any "Finance Party", any "Secured Party", any "Obligor" or any other "person" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii) |
"assets" includes present and future properties, revenues and rights of every description;
|
(iii) |
"contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
(iv) |
"document" includes a deed and also a letter, fax or telex;
|
(v) |
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
(vi) |
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;
|
(vii) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(viii) |
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
(ix) |
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
(x) |
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(xi) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(xii) |
a provision of law is a reference to that provision as amended or re-enacted;
|
(xiii) |
a time of day is a reference to London time;
|
(xiv) |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
(xv) |
words denoting the singular number shall include the plural and vice versa; and
|
(xvi) |
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(b) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(c) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d) |
A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
|
1.3 |
Construction of insurance terms
|
1.4 |
Agreed forms of Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of all Lenders.
|
1.5 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document including but not limited to Clause 16 (Costs and expenses), a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
(c) |
Any Receiver, Delegate or any other person described in paragraph (b) of Clause 14.2 (Other indemnities), paragraph (b) of Clause 30.11 (Exclusion of liability) or paragraph (b) of Clause 31.11 (Exclusion of liability) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
2 |
THE FACILITIES
|
2.1 |
The Facilities
|
(a) |
a term loan facility which the Commercial Lenders make available in an aggregate principal amount not exceeding the Total Commercial Facility Loan Commitment, being USD 175,000,000 (the "Commercial Facility");
|
(b) |
a term loan facility which Kexim makes available in an aggregate principal amount not exceeding the Total Kexim Direct Facility Loan Commitment, being USD 175,000,000 (the "Kexim Direct Facility"); and
|
(c) |
a term loan facility which the Kexim Guaranteed Lenders make available in an aggregate principal amount not exceeding the Total Kexim Guaranteed Facility Loan Commitment, being USD 125,000,000 (the "Kexim Guaranteed Facility").
|
2.2 |
Finance Parties' rights and obligations
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
(c) |
A Finance Party may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
(d) |
Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the consent of any other Finance Party or joining any other Finance Party to the relevant proceedings.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
4.2 |
Further conditions precedent
|
(a) |
no Default is continuing or would result from the proposed Advance;
|
(b) |
the Repeating Representations to be made by each Obligor are true;
|
(c) |
the Facility Agent has received, or is satisfied it will receive when the Advance is made available, all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent to the Utilisation) in form and substance satisfactory to the Facility Agent.
|
4.3 |
Notification of satisfaction of conditions precedent
|
(a) |
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent).
|
(b) |
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, all the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification unless directly caused by the gross negligence or wilful misconduct of the Facility Agent.
|
4.4 |
Waiver of conditions precedent
|
5 |
UTILISATION
|
5.1 |
Delivery of the Utilisation Request
|
(a) |
The Borrower may utilise the Facilities by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b) |
The Borrower may not deliver more than one Utilisation Request in respect of the Facilities. All three Facilities must be utilised on the Utilisation Date.
|
5.2 |
Completion of the Utilisation Request
|
(a) |
The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
the proposed Utilisation Date is the Delivery Date of the Drillship and is a Business Day within the applicable Availability Period;
|
(ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
|
(iii) |
the proposed Interest Period complies with Clause 9 (Interest Periods); and
|
(iv) |
it specifies the account of the Builder in accordance with the Building Contract and/or the account of the Drillship Owner for reimbursement to the Drillship Owner of amounts already paid to the Builder.
|
(b) |
Only one Advance under each Facility may be requested in the Utilisation Request.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in the Utilisation Request must be dollars.
|
(b) |
The amount of the proposed Advance must be an amount which is not more than the amount available pursuant to Clause 2.1 (The Facilities).
|
(c) |
The Utilisation for the Drillship must be utilised pro rata across the three Facilities.
|
(d) |
The aggregate amount of the proposed Advance must be an amount which is not more than 70 per cent. of the Market Value of the Drillship.
|
5.4 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Advance available by the Utilisation Date through its Facility Office.
|
(b) |
Upon receipt of the Utilisation Request, the Facility Agent shall by the Specified Time notify each Lender and the Kexim Guarantee Agent of the details of the requested Advance and the amount of each Lender's participation.
|
5.5 |
Cancellation of Commitments
|
5.6 |
Payment to third parties
|
5.7 |
Disbursement of Advance to third party
|
5.8 |
Prepositioning of funds
|
(a) |
agree to pay interest on the amount of such funds at the rate described in Clause 8.1 (Calculation of interest) applicable to the first Interest Period for the period during which funds have been pre-positioned and so that interest shall be paid together with the first payment of interest in respect of the Advance at the Utilisation Date (being the Delivery Date) or, if the Utilisation Date does not occur, within three Business Days of demand by the Facility Agent; and
|
(b) |
shall, without duplication, indemnify each Finance Party against any losses it may incur in connection with such arrangement.
|
6 |
REPAYMENT
|
6.1 |
Repayment of Advances
|
(a) |
The Borrower shall repay each Advance of each Facility by monthly repayments (each a "Repayment Instalment") together with any sums payable out of Excess Cash Flow pursuant to Clause 7.6 (Cash sweep), and, in relation to the Commercial Facility, the Commercial Facility Balloon (as defined in paragraph (c) below), in each case to be made in accordance with paragraph (c) below and Schedule 8 (Repayments) as attached hereto and as shall be updated in accordance with paragraph (e) below.
|
(b) |
The repayment of each Advance shall commence on the first Repayment Date and on each Repayment Date thereafter, as set out in Schedule 8 (Repayments).
|
(c) |
The Repayment Instalments under each Advance and the amount of the Commercial Facility Balloon shall be calculated as follows:
|
(i) |
the amount drawn under the relevant Facilities, which was originally split between the three Facilities in the ratio 175 : 125 : 175, and thereafter:
|
(A) |
in the case of the Kexim Direct Facility and the Kexim Guaranteed Facility, spread equally across the Repayment Dates as set out in Schedule 8 (Repayments); and
|
(B) |
in the case of the Commercial Facility, spread (proportionally as set out in Schedule 8 (Repayments)) in equal amounts across the Repayment Dates with a balloon payment (the "Commercial Facility Balloon") on the Commercial Facility Termination Date aggregating all amounts remaining then outstanding under the Commercial Facility; and
|
(ii) |
the aggregate principal outstanding on the Commercial Facility Termination Date shall not exceed USD 200,000,000 (the "Commercial Facility Termination Date Balance").
|
(d) |
Unless the Commercial Facility has been renewed as contemplated in Clause 7.4 (Kexim prepayment option), the Commercial Facility Loan shall be repaid in full on the Commercial Facility Termination Date.
|
(e) |
Schedule 8 (Repayments) sets out the Repayment Instalments and the amount of the Commercial Facility Balloon and shall be updated monthly following the Effective Date to reflect the repayments and prepayments as applied according to this Clause 6.1 (Repayment of Advances) and Clause 7.6 (Cash sweep).
|
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(b) |
upon the Facility Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(c) |
the Borrower shall repay that Lender's participation in the Facility concerned on the last day of the Interest Period for that Facility occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law),
|
7.2 |
Voluntary and automatic cancellation
|
(a) |
The Borrower may, if it gives the Facility Agent not less than five Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD 1,000,000) of any unutilised Facility. Any cancellation under this Clause 7.2 (Voluntary and automatic cancellation)) of a Facility or Facilities shall reduce the Commitments of the Lenders under the three Facilities rateably. Subject to the foregoing, any cancellation under this Clause 7.2 (Voluntary and automatic cancellation) of the Commercial Facility shall reduce the Commitments of the Commercial Lenders under the Commercial Facility rateably.
|
(b) |
The unutilised Commitment of each Lender in respect of any of the Facilities shall be automatically cancelled at close of business on the Utilisation Date.
|
7.3 |
Voluntary prepayment of the Loan
|
(a) |
The Borrower may, if it gives the Facility Agent not less than 30 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD 10,000,000).
|
(b) |
Any partial prepayment under this Clause 7.3 (Voluntary prepayment of the Loan) shall be applied pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments.
|
7.4 |
Kexim prepayment option
|
(a) |
In the event that the Commercial Facility has not been extended hereunder by the Commercial Lenders or otherwise refinanced in each case on terms acceptable to Kexim and the Kexim Guarantor by the date falling three Months prior to the Commercial Facility Termination Date, Kexim and the Kexim Guarantor (acting through the Kexim Guarantee Agent) shall each have the option, but not the obligation, to terminate the Kexim Direct Facility Loan and the Kexim Guaranteed Facility Loan at the Commercial Facility Termination Date. Unless the Borrower has been notified in writing by Kexim and the Kexim Guarantee Agent no later than 60 days before the Commercial Facility Termination Date that Kexim and
|
(b) |
This right of prepayment for the benefit of the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim set out in paragraph (a) above shall thereafter also arise for the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim at all other relevant times where the Commercial Facility having been extended or refinanced for a further period pursuant to sub-clause (a) above has not been further extended or otherwise refinanced on terms acceptable to the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim by the date falling three Months prior to the maturity date of so extended or refinanced Commercial Facility, so long as any Kexim Direct Facility Loan and/or any Kexim Guaranteed Facility Loan remains at such time outstanding under this Agreement.
|
7.5 |
Mandatory prepayment on sale or Total Loss
|
(a) |
in the case the Drillship is sold or otherwise disposed of, on or before the date upon which the sale is completed by delivery of the Drillship to the buyer or disposal of the Drillship is otherwise completed; or
|
(b) |
in the case of a Total Loss, on the earlier of (i) the date falling 120 days, or such later date as may be agreed by the Facility Agent (acting on the instructions of the Lenders), after the Total Loss Date and (ii) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
7.6 |
Cash sweep
|
(a) |
The Drillship Owner shall irrevocably authorise the Account Bank to transfer the Excess Cash Flow to the Facility Agent from its Earnings Account on a monthly basis as specified in Clause 26.1 (Payment of Earnings).
|
(b) |
The Borrower shall irrevocably authorise the Account Bank promptly to transfer any Put and Call Receipts to the Facility Agent from its Retention Account.
|
(c) |
The Excess Cash Flow, any Put and Call Receipts and any amounts received by the Facility Agent under Clause 26.3 (Operating Account) shall be applied in prepayment pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments.
|
7.7 |
Restrictions
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be substantially in the form of Schedule 9 (Form of Prepayment / Cancellation Notice) hereto and shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs pursuant to Clause 10.4 (Break Costs) and prepayment fee pursuant to Clause 7.8 (Prepayment fee) below, without premium or penalty.
|
(c) |
The Borrower may not reborrow any part of a Facility which is prepaid.
|
(d) |
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f) |
If the Facility Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to the Borrower or all Lenders, as appropriate.
|
7.8 |
Prepayment fee
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
(a) |
the Applicable Margin; and
|
(b) |
LIBOR.
|
8.2 |
Payment of interest
|
(a) |
The Borrower shall pay accrued interest on each Advance on the last day of each Interest Period relating to it.
|
(b) |
If an Interest Period is longer than one Month, the Borrower shall pay interest accrued on the Advance on the dates falling at monthly intervals after the first day of the Interest Period.
|
8.3 |
Default interest
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 200 basis points higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 (Default interest) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b) |
If an Unpaid Sum consists of all or part of an Advance which became due on a day which was not the last day of an Interest Period relating to it:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Advance; and
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 200 basis points higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
(d) |
Additionally the rate of interest payable on any amount to which Clause 8.1 (Calculation of interest) continues to apply shall increase by 200 basis points on the date following any notice served by the Facility Agent following an Event of Default and whilst it is continuing, unremedied or unwaived.
|
8.4 |
Notification of rates of interest
|
8.5 |
Hedging
|
(a) |
The Borrower may request a Hedge Counterparty to enter into Hedging Agreements and shall if such Hedging Agreements are entered into after that date maintain such Hedging Agreements in accordance with this Clause 8.5 (Hedging),
|
(b) |
Each Hedging Agreement shall:
|
(i) |
be with a Hedge Counterparty;
|
(ii) |
be for a term ending on or before the Termination Date;
|
(iii) |
have settlement dates coinciding with the Interest Payment Dates;
|
(iv) |
be in agreed form;
|
(v) |
provide for two-way payments in the event of a termination of a transaction in respect of a Hedging Agreement, whether on a Termination Event (as defined in the relevant Hedging Agreement) or on an Event of Default (as defined in the relevant Hedging Agreement); and
|
(vi) |
provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars.
|
(c) |
The rights of the Borrower under the Hedging Agreements shall be assigned by way of security under an Assignment of Hedging Agreements. Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by the Borrower pursuant to the Assignment of Hedging Agreements of its rights under the Hedging Agreements to which it is party in favour of the Security Agent. Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement.
|
(d) |
The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement.
|
(e) |
Neither a Hedge Counterparty nor the Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent.
|
(f) |
Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to a conflict with any provision of this Agreement.
|
(g) |
If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment under this Agreement, will exceed 100 per cent. of the Loan at that time, the Borrower must promptly notify the Facility Agent and must, at the request of the Facility Agent, reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent so that it no longer exceeds or will not exceed 100 per cent. of the Loan then or that will be outstanding.
|
(h) |
Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (g) above will be apportioned as between those transactions pro rata.
|
(i) |
Paragraph (g) above shall not apply to any transactions in respect of any Hedging Agreement under which no Borrower has any actual or contingent indebtedness.
|
(j) |
Subject to paragraph (k) below, neither a Hedge Counterparty nor the Borrower may terminate or close out any transactions in respect of any Hedging Agreement (in whole or in part) except:
|
(i) |
in accordance with paragraph (g) above;
|
(ii) |
in the case of termination or closing out by a Hedge Counterparty, on the occurrence of Illegality, a Force Majeure Event, a Tax Event,Failure to Pay or Bankruptcy (as each such expression is defined in the relevant Hedging Agreement);
|
(iii) |
in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent serves notice under paragraph (b) of Clause 27.21 (Acceleration) or, having served notice under paragraph (b) of Clause 27.21 (Acceleration), makes a demand;
|
(iv) |
in the case of any other termination or closing out by a Hedge Counterparty or the Borrower, with the consent of the Facility Agent; or
|
(v) |
If the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged in full;
|
(k) |
If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under sub-paragraph (iii) of paragraph (j) above, such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent.
|
(l) |
A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if the Borrower is in breach of its payment obligations under any transaction in respect of that Hedging Agreement.
|
(m) |
The Security Agent shall not be liable for the performance of any of the Borrower's obligations under a Hedging Agreement.
|
(n) |
If a Hedging Agreement is entered into after the delivery of the Drillship, the Borrower shall amend the Mortgage and other Finance Documents as reasonably required by the Facility Agent for the purpose of securing that Hedging Agreement entered into after the Delivery Date or enter into a new Mortgage and amend the other Finance Documents at the request of the Facility Agent.
|
(o) |
The Borrower agrees that, prior to them (or any of them) entering into any interest rate swap or other hedge instrument with a counterparty (other than a Hedge Counterparty, an "Other Hedge Counterparty") for the purpose of hedging any interest rate risk under this Agreement, the Borrower shall offer for a period of not less than five Business Days to enter into a swap, or other instrument, on the same proposed terms and conditions with the Hedge Counterparties (with each Hedge Counterparty taking such portion as may be agreed between the Borrower and the Hedge Counterparties or, if one or more Hedge Counterparties declines such an offer or the Borrower elects only to enter into the hedge instrument with one of them, the remaining Hedge Counterparty or Hedge Counterparties (as the case may be) shall be entitled to take such portion as it or they (as the case may be) may agree with the Borrower). If all Hedge Counterparties decline such an offer or if the Borrower elects not to proceed on the basis that the offers are not competitive, the Borrower may then (subject, and without prejudice, to the requirements set out elsewhere in the Finance Documents) enter into such swap, or other instrument, on the same terms and conditions offered to those declining Hedge Counterparties (and in the same proportion as those Hedge Counterparties would have taken if they had accepted), with the Other Hedge Counterparty. The rights of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be assigned by way of Security to the Security Agent, and the obligations and liabilities of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be fully subordinated (by way of a subordination agreement) to the obligations and liabilities of the Borrower under the Finance Documents.
|
9 |
INTEREST PERIODS
|
9.1 |
Selection of Interest Periods
|
(a) |
The Borrower may select the first Interest Period for an Advance in the Utilisation Request. The Borrower may select each subsequent Interest Period in a Selection Notice.
|
(b) |
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrower not later than the Specified Time.
|
(c) |
If the Borrower fails to select an Interest Period in the Utilisation Request or fails to deliver a Selection Notice to the Facility Agent in accordance with paragraphs (a) and (b) above, the relevant Interest Period will be one Month.
|
(d) |
The Borrower may select an Interest Period of one, three or six Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders).
|
(e) |
An Interest Period for an Advance shall not extend beyond the applicable Termination Date, but shall be shortened so that it ends on the applicable Termination Date.
|
(f) |
In respect of a Repayment Instalment, an Interest Period for a part of the Advance equal to such Repayment Instalment shall end on the Repayment Date relating to it if such date is before the end of the Interest Period then current.
|
(g) |
The first Interest Period for an Advance shall start on the Utilisation Date and each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
9.2 |
Non-Business Days
|
10 |
CHANGES TO THE CALCULATION OF INTEREST
|
10.1 |
Absence of quotations
|
10.2 |
Market disruption
|
(a) |
If a Market Disruption Event occurs in relation to any Advance for any Interest Period, then the rate of interest on each Lender's share of the Advance (if any) for the Interest Period shall be the rate per annum which is the sum of:
|
(i) |
the Applicable Margin; and
|
(ii) |
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Advance from whatever source it may reasonably select.
|
(b) |
In this Agreement "Market Disruption Event" means:
|
(i) |
at or about noon on the Quotation Day for the relevant Interest Period, the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest Period; or
|
(ii) |
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in the Advance concerned exceed 50 per cent. of that Advance) that the cost to it or them of funding its participations in the Advance concerned or part of the Advance concerned from whatever source it may reasonably select be in excess of LIBOR.
|
10.3 |
Alternative basis of interest or funding
|
(a) |
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(b) |
Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders who participate in the relevant Advance and the Borrower, be binding on all Parties to the Finance Documents.
|
10.4 |
Break Costs
|
(a) |
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of an Advance or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Advance or Unpaid Sum.
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
11 |
FEES
|
11.1 |
Commitment fee
|
(a) |
The Borrower shall pay to the Facility Agent (for the account of each Lender) a commitment fee (the "Commitment Fee") computed at the rate of 40 per cent. per annum on the relevant Applicable Margin calculated on the undrawn Commitment of each Lender for each Facility, commencing on the date of this Agreement having been signed, and ending on the last day of the relevant Availability Period for each Facility.
|
(b) |
The accrued Commitment Fee is payable in arrears on the last day of each successive period of three Months which ends during the Availability Period, on the Utilisation Date and, if cancelled, on the cancelled amount of the relevant Lender's or Lenders' Commitment at the time the cancellation is effective.
|
11.2 |
Other fees
|
11.3 |
Kexim Guarantee Premium
|
(a) |
The Borrower acknowledges that the Kexim Guaranteed Lenders shall procure the placement of the Kexim Guarantee either through the Kexim Guarantee Agent or directly with the Kexim Guarantor and shall benefit from it throughout the duration of the Security
|
(b) |
The Borrower agrees that its obligation to make the payments set out in paragraph (a) above to the Facility Agent in respect of the Kexim Guarantee Premium (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The Kexim Guarantee Premium (or any part thereof) shall be refundable only in accordance with the terms of the Fee Letter referred to in paragraph (a) above.
|
(c) |
The Borrower acknowledges that the amount of the Kexim Guarantee Premium will be solely determined by the Kexim Guarantor and no Kexim Guaranteed Lender is in any way involved in the determination of the amount of the Kexim Guarantee Premium and agrees that the Borrower shall have no claim or defence against any Kexim Guaranteed Lender in connection with the amount of the Kexim Guarantee Premium.
|
(d) |
Any refund of the Kexim Guarantee Premium received by a Finance Party shall, provided no Event of Default is continuing, be promptly paid or transferred to the Borrower.
|
12 |
TAX GROSS UP AND INDEMNITIES
|
12.1 |
Definitions
|
(a) |
In this Agreement:
|
(b) |
Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
(c) |
This Clause 12 (Tax gross up and indemnities) shall not apply to any Hedging Agreement.
|
12.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e) |
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
12.3 |
Tax indemnity
|
(a) |
The Borrower shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or
|
(B) |
relates to a FATCA Deduction required to be made by a Party.
|
(c) |
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
|
12.4 |
Tax Credit
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit; the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
|
12.5 |
Stamp taxes
|
12.6 |
VAT
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d) |
Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.7 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(B) |
not a FATCA Exempt Party; and
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliances with any other law, regulation or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If the Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i) |
where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where the Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(i) |
a withholding certificate on Form W-8 or Form W-9 or any other relevant form; or
|
(ii) |
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f) |
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated
|
(h) |
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
12.8 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
13 |
INCREASED COSTS
|
13.1 |
Increased costs
|
(a) |
Subject to Clause 13.3 (Exceptions), the Borrower shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates which:
|
(i) |
arises as a result of:
|
(A) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
(B) |
compliance with any law or regulation made,
|
(ii) |
arises as a result of the implementation, interpretation, administration or application of or compliance with Basel III, CRD IV or CRR or any law or regulation that implements or applies Basel Ill, CRD IV or CRR
|
(b) |
In this Agreement, "Increased Costs" means:
|
(i) |
a reduction in the rate of return from any Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii) |
an additional or increased cost; or
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
13.2 |
Increased cost claims
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3 |
Exceptions
|
(a) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b) |
attributable to a FATCA Deduction required to be made by a Party;
|
(c) |
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
(d) |
compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost);
|
(e) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(f) |
incurred by a Hedge Counterparty in its capacity as such.
|
14 |
OTHER INDEMNITIES
|
14.1 |
Currency indemnity
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
(i) |
making or filing a claim or proof against that Obligor; or
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
(c) |
This Clause 14.1 does not apply to any sum due under a Hedging Agreement
|
14.2 |
Other indemnities
|
(a) |
The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of:
|
(i) |
the occurrence of any Event of Default;
|
(ii) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 34 (Sharing among the Finance Parties);
|
(iii) |
funding, or making arrangements to fund, its participation in an Advance requested by the Borrower in the Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);
|
(iv) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or
|
(v) |
any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by a Secured Party as a result of conduct of any Obligor or member of the Restricted Group or any of their partners, directors, officers employees, agents or advisors, that violates any Sanctions.
|
(b) |
The Borrower shall (or shall procure that an Obligor will) within three Business Days of demand indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, the Drillship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c) |
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
(i) |
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
(ii) |
in connection with any Environmental Claim.
|
(d) |
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14,2 (Other indemnities) and the provisions of the Third Parties Act.
|
14.3 |
Mandatory Cost
|
(a) |
in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank, the Swiss National Bank or the Swiss Financial Market Supervisory Authority (FINMA) or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and
|
(b) |
in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation
|
14.4 |
Indemnity to the Servicing Banks and the Kexim Guarantee Agent
|
(a) |
investigating any event which it reasonably believes is a Default; or
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
14.5 |
Indemnity to the Security Agent
|
(a) |
The Borrower shall (or shall procure that an Obligor will) within five Business Days of demand indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any Secured Party:
|
(i) |
in relation to or as a result of:
|
(A) |
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
(B) |
the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(C) |
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; and
|
(D) |
any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security,
|
(ii) |
which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise than as a result of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b) |
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
15 |
MITIGATION BY THE LENDERS
|
15.1 |
Mitigation
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) or paragraph (a) of Clause 14.3 (Mandatory Cost) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2 |
Limitation of liability
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
(b) |
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16 |
COSTS AND EXPENSES
|
16.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement and the Transaction Security; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
16.2 |
Amendment costs
|
(a) |
an Obligor requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to Clause 35.9 (Change of currency); or
|
(c) |
an Obligor requests, and the Security Agent agrees to, the release of any part of the Charged Property from the Transaction Security,
|
16.3 |
Enforcement and preservation costs
|
16.4 |
Web Services
|
17 |
GUARANTEE AND INDEMNITY
|
17.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand by the Facility Agent pay that amount as if it were the principal obligor; and
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand by the Facility Agent against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (Guarantee and Indemnity) if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2 |
Continuing guarantee
|
17.3 |
Reinstatement
|
17.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, take up or enforce, any rights against, or security over assets
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
17.5 |
Immediate recourse
|
17.6 |
Appropriations
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
(b) |
hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of the Guarantor's liability under this Clause 17 (Guarantee and Indemnity).
|
17.7 |
Deferral of Guarantor's rights
|
(a) |
to be indemnified by an Obligor;
|
(b) |
to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
|
(d) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
|
(e) |
to exercise any right of set-off against any Obligor; and/or
|
(f) |
to claim or prove as a creditor of any Obligor in competition with any Secured Party.
|
17.8 |
Additional security
|
17.9 |
Applicability of provisions of Guarantee to other Security
|
18 |
REPRESENTATIONS
|
18.1 |
General
|
18.2 |
Status
|
(a) |
It is a corporation, duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(b) |
It and each of its Subsidiaries (if any) has the power to own its assets and carry on its business as it is being conducted.
|
18.3 |
Binding obligations
|
18.4 |
Validity, effectiveness and ranking of Security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b) |
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c) |
The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have the first ranking priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking security.
|
18.5 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
the constitutional documents of any member of the Restricted Group; or
|
(c) |
any agreement or instrument binding upon it or any member of the Restricted Group or any member of the Restricted Group's assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
18.6 |
Power and authority
|
(a) |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
(i) |
in the case of the Drillship Owner, its execution of the Total Drilling Contract and the Building Contract, the purchase of and payment for the Drillship under that Building Contract and its registration of the Drillship under the Approved Flag;
|
(ii) |
its entry into, performance and delivery of, each Finance Document to which it is a party and, in the case of the Drillship Owner, the Total Drilling Contract and the Building Contract and the transactions contemplated by those Finance Documents, the Building Contract and the Total Drilling Contract.
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
|
18.7 |
Validity and admissibility in evidence
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the Total Drilling Contract; and
|
(b) |
to make the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the Total Drilling Contract, admissible in evidence in its Relevant Jurisdictions,
|
18.8 |
Governing law and enforcement
|
(a) |
The choice of governing law of each Finance Documents to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b) |
Any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.
|
18.9 |
No filing or stamp taxes
|
(a) |
in case of the Drillship Owner, the registration of the Mortgage at the Marshall Island ship registry which will be made at the Delivery Date;
|
(b) |
if applicable, any other registration required by the legal advisers to the Finance Parties,
|
18.10 |
Deduction of Tax
|
18.11 |
Taxes paid
|
(a) |
It is not and no other member of the Restricted Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Restricted Group is) overdue in the payment of any amount in respect of Tax.
|
(b) |
No claims or investigations are being, or are reasonably likely to be, made or conducted against it with respect to Taxes.
|
18.12 |
No default
|
(a) |
No Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
(b) |
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries (if any) or to which its (or any of its Subsidiaries') assets are subject.
|
18.13 |
No misleading information
|
(a) |
Any factual information provided by any member of the Restricted Group for the purposes of this Agreement, including but not limited to the Budget delivered in accordance with Clause 19.5 (Budget), was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b) |
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c) |
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in the information, including but not limited to the Budget, being untrue or misleading in any material respect.
|
18.14 |
Original Financial Statements
|
(a) |
The Original Financial Statements were prepared in accordance with the applicable Accounting Principles consistently applied.
|
(b) |
The Original Financial Statements fairly represent its financial condition and operations during the relevant financial year.
|
(c) |
There has been no material adverse change in the assets, business or consolidated financial condition of the Restricted Group since 31 December 2013.
|
18.15 |
Pari passu ranking
|
18.16 |
No proceedings pending or threatened
|
18.17 |
Validity and completeness of the Building Contract and Total Drilling Contract
|
(a) |
The Building Contract and the Total Drilling Contract entered into constitutes legal, valid, binding and enforceable obligations of the Builder, the Client and the Drillship Owner respectively, as the case may be.
|
(b) |
The copies of the Building Contract and the Total Drilling Contract delivered to the Facility Agent before the date of this Agreement are true and complete copies.
|
(c) |
No amendments or additions to the Building Contract or the Total Drilling Contract have been agreed nor has (i) the Drillship Owner or the Builder waived any of their respective rights under the Building Contract or (ii) the Drillship Owner or the Client waived any of their respective rights under the Total Drilling Contract.
|
18.18 |
No rebates etc.
|
18.19 |
No breach of laws
|
18.20 |
Compliance with Environmental Laws
|
18.21 |
No Environmental Claim
|
18.22 |
No Environmental Incident
|
18.23 |
ISM and ISPS Code compliance
|
18.24 |
Financial Indebtedness
|
18.25 |
Overseas companies
|
18.26 |
Place of business
|
18.27 |
No employee or pension arrangements
|
18.28 |
Ownership
|
(a) |
The Trust owns all of the shares and the ownership interests in the Borrower as described in Schedule 11 (Corporate Structure).
|
(b) |
The Trust owns all of the shares and the ownership interests in the Drillship Owner as described in Schedule 11 (Corporate Structure).
|
(c) |
None of the shares in any of the companies within the Restricted Group are subject to any option to purchase, pre-emption rights or similar rights.
|
18.29 |
Good title to assets
|
18.30 |
The Drillship
|
(a) |
in the absolute ownership of the Drillship Owner, free and clear of all encumbrances (other than any Permitted Security), and the Drillship Owner is the sole, legal and beneficial owner of the Drillship;
|
(b) |
registered in the name of the Drillship Owner under the Approved Flag;
|
(c) |
operationally seaworthy in every way and fit for service; and
|
(d) |
classed with the Approved Classification with the Approved Classification Society and is free of all overdue requirements and recommendations.
|
18.31 |
No money laundering
|
18.32 |
Corrupt practices
|
18.33 |
Sanctions
|
(a) |
a Restricted Party;
|
(b) |
in breach of Sanctions; or
|
(c) |
subject to or involved in any complaint, claim, proceeding, formal notice, investigation or other action by any regulatory or enforcement authority or third party concerning any Sanctions.
|
18.34 |
No immunity
|
18.35 |
Insolvency
|
(a) |
No corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.11 (Insolvency proceedings) has been taken or, to the knowledge of the Borrower, threatened in relation to a member of the Restricted Group.
|
(b) |
No creditors' process described in Clause 27.12 (Creditors' process), has been taken or threatened in relation to any Obligor.
|
(c) |
None of the circumstances described in Clause 27.10 (Insolvency) applies to any Obligor.
|
(d) |
The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Finance Documents.
|
18.36 |
Kexim Guarantee
|
18.37 |
US Tax Obligor
|
18.38 |
Repetition
|
19 |
INFORMATION UNDERTAKINGS
|
19.1 |
General
|
19.2 |
Financial statements
|
(a) |
as soon as the same become available, but in any event within 120 days after the end of each financial year its audited consolidated financial statements (to include a profit and loss account, balance sheet and cash flow statement);
|
(b) |
as soon as the same become available, but in any event within 60 days after each Quarter Date in each financial year its unaudited consolidated financial statements for that financial quarter (to include a profit and loss account, balance sheet and, where available, a cash flow statement); and
|
(c) |
prior to each financial year, detailed two year cash flow projections of the Restricted Group in a format approved by the Facility Agent (acting reasonably).
|
19.3 |
Compliance Certificate
|
(a) |
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraphs (a) and (b) of Clause 19.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) and, if applicable, Clause 21 (Financial covenants after the Interim Maturity Date) as at the date as at which those financial statements were drawn up.
|
(b) |
Each Compliance Certificate shall be signed by the chief financial officer or any authorized signatory of the Borrower.
|
19.4 |
Requirements as to financial statements
|
(a) |
a description of any change necessary for those financial statements to reflect the applicable Accounting Principles, accounting practices and reference periods upon which the Original Financial Statements were prepared; and
|
(b) |
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) and, if applicable, Clause 21 (Financial covenants after the Interim Maturity Date) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
19.5 |
Budget
|
(a) |
The Borrower shall deliver to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests) on or prior to the Effective Date a budget for the Restricted Group from the period up to and including 31 December 2018, broken down monthly (each such Month being a "Budget Month"), of projected cash receipts and disbursements (the "Budget"), and which shall include a breakdown of the following costs and expenses:
|
(i) |
a fixed amount of operating costs and expenses, which shall include the costs of cold-stacking the Drillship ("OPEX");
|
(ii) |
a fixed amount of maintenance capital expenditures in relation to equipment on the Drillship ("CAPEX");
|
(iii) |
a fixed amount of general and administrative expenses in relation to the Restricted Group and the Drillship ("G&A"),
|
(iv) |
a fixed amount of Taxes in relation to the Drillship, being, as at the date of the Amending and Restating Agreement, 9.2015 per cent. on all revenues received by the Drillship Owner under the Total Drilling Contract (including, without limitation, the Total Termination Payments); and
|
(v) |
a fixed amount of commission, equal to 1% of all revenues received for the Drillship (including without limitation the Total Termination Payments received under the Total Drilling Contract), payable to TMS Offshore Services Ltd. ("Commission"),
|
(b) |
Promptly upon receipt by the Facility Agent, it shall send the Budget to the Lenders and the Technical Advisor for approval and such Budget shall only constitute the Budget if approved by all the Lenders (following consultation with the Technical Advisor).
|
(c) |
The Facility Agent (acting on the instructions of any Lender) shall be entitled to request full information relating to the expenses of the Restricted Group to ensure they are properly and reasonably incurred and shall be entitled to review or to request an audit of all records.
|
(d) |
The Borrower shall use its reasonable endeavours to procure that, in respect of any Budget Month, the aggregate amount of the Permitted Operating Expenses, Tax and Commission and, in each case, the amount of each component thereof (as specified in paragraph (a) above) shall not exceed the budgeted amounts set out in the Budget for that Budget Month.
|
19.6 |
Information: miscellaneous
|
(a) |
promptly upon receipt, a copy of the monthly invoice payment confirmation from Total;
|
(b) |
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
(c) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings (including proceedings relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Restricted Group;
|
(d) |
promptly, such further information and/or documents regarding:
|
(i) |
the Drillship, the Earnings or the Insurances;
|
(ii) |
the Charged Property;
|
(iii) |
compliance of the Obligors with the terms of the Finance Documents;
|
(iv) |
the financial condition, business and operations of any member of the Restricted Group,
|
(e) |
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it;
|
(f) |
promptly upon becoming aware of them, the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions against it, any of its direct or indirect owners, any other member of the Restricted Group, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives, as well as information on what steps are being taken with regards to answer or oppose such; and
|
(g) |
promptly upon becoming aware that it, any of its direct or indirect owners, any other member of the Restricted Group, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives has become or is likely to become a Restricted Party.
|
19.7 |
Notification of default
|
(a) |
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b) |
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by any authorized signatory of the Borrower certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.8 |
"Know your customer" checks
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii) |
any change in the status of an Obligor after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of a Servicing Bank supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Bank (for itself) in order for that Servicing Bank to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20 |
FINANCIAL COVENANTS
|
20.1 |
General
|
20.2 |
Minimum credit balance on Retention Account
|
20.3 |
Financial testing
|
21 |
FINANCIAL COVENANTS AFTER THE INTERIM MATURITY DATE
|
21.1 |
General
|
21.2 |
Borrower's Minimum Cash and Cash Equivalents
|
(a) |
The Borrower shall ensure that Cash and Cash Equivalents (which, for the avoidance of doubt, shall include the USD 5,000,000 held on the Retention Account) of the Borrower (on a consolidated basis) will not at any time fall below USD 20,000,000.
|
(b) |
Notwithstanding paragraph (a) above, if a new Satisfactory Drilling Contract is secured for the Drillship, then the Cash and Cash Equivalents (which, for the avoidance of doubt, shall include the USD 5,000,000 held on the Retention Account) of the Borrower (on a consolidated basis) shall instead be not less than:
|
(i) |
USD 10,000,000 during the next one year of operation of the Drillship;
|
(ii) |
USD 15,000,000 during the second year of operation of the Drillship; and
|
(iii) |
USD 20,000,000 thereafter.
|
21.3 |
Borrower's Equity Ratio
|
21.4 |
Borrower's Current Ratio
|
21.5 |
Borrower's Debt Service Cover Ratio
|
21.6 |
Financial testing
|
22 |
GENERAL UNDERTAKINGS
|
22.1 |
General
|
22.2 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Facility Agent of, any Authorisation required under any law or regulation of any Relevant Jurisdiction or the state of the Approved Flag at any time of the Drillship to enable it to:
|
(i) |
perform its obligations under the Finance Documents to which it is a party;
|
(ii) |
perform, in the case of the Drillship Owner, its obligations under the Building Contract, the Total Drilling Contract and any other Charter to which it is a party;
|
(iii) |
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of the Drillship or any Finance Document to which it is a party, the Building Contract, the Total Drilling Contract and/or any other Charter (as relevant); and
|
(iv) |
in the case of the Drillship Owner, own and operate the Drillship.
|
22.3 |
Compliance with laws
|
22.4 |
Transactions with Affiliates
|
22.5 |
Environmental compliance
|
(a) |
comply with all Environmental Laws;
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Approvals; and
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental Law.
|
22.6 |
Environmental claims
|
(a) |
any Environmental Claim against any member of the Restricted Group which is current, pending or threatened; and
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Restricted Group.
|
22.7 |
Taxation
|
(a) |
Each of the Obligors shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:
|
(i) |
such payment is being contested in good faith;
|
(ii) |
adequate reserves are maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 19.2 (Financial statements); and
|
(iii) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b) |
None of the Obligors may and, to the extent (in the opinion of the Facility Agent or the Majority Lenders) it has or reasonably could expect to have a Material Adverse Effect, no other member of the Restricted Group may change its residence for Tax purposes.
|
22.8 |
Overseas companies
|
22.9 |
Pari passu ranking
|
22.10 |
Ownership
|
(a) |
The Trust shall own 100 per cent. of all the shares and the ownership interests in the Borrower and in the Drillship Owner as described in Schedule 11 (Corporate Structure).
|
(b) |
Each Obligor shall procure that there shall be no change in the corporate structure of the Restricted Group described in Schedule 11 (Corporate Structure) except as expressly permitted by this Agreement without the prior written consent of all the Lenders (not to be unreasonably withheld).
|
22.11 |
New Guarantors
|
(a) |
Each Obligor shall procure that each Intra-Group Charterer shall be a company within the Restricted Group.
|
(b) |
Each Obligor shall procure that any Intra-Group Charterer not already party to this Agreement (other than a company within the Restricted Group being a counterparty to a Service Contract only) shall accede to this Agreement as an Additional Guarantor by signing an accession letter substantially in the form of Schedule 7 (Form of Accession Letter) hereto and/or taking such other step as the Facility Agent may reasonably require to provide its Guarantee and any such other Security as contemplated under this Agreement, and Shares Security shall be granted over the shares in that Intra-Group Charterer.
|
22.12 |
Title
|
(a) |
The Drillship Owner shall hold the title to, and own the entire beneficial interest in, the Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause 22.16 (Negative pledge).
|
(b) |
Each Obligor shall procure that the Drillship Owner and/or Intra-Group Charterer (as the case may be) shall hold the title to, and own the entire beneficial interest in, the Earnings payable to each such party and its rights in the Insurances related to the Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause 22.16 (Negative pledge).
|
22.13 |
Employment of the Drillship
|
(a) |
All Charters for the Drillship shall be made on market terms and otherwise on arm's length terms.
|
(b) |
No novation or assignment of a Charter shall be permitted, save for
|
(i) |
novations or assignments in favour of the Secured Parties under the Finance Documents; or
|
(ii) |
novations or assignments in the ordinary course of business between the Drillship Owner and/or any other member of the Restricted Group (subject to Clause 22.11 (New Guarantors)) as the case may be; or
|
(iii) |
with the prior written consent of all the Lenders (not to be unreasonably withheld).
|
22.14 |
Change of business
|
(a) |
The Borrower shall procure that no substantial change is made to the general nature of the business of the Restricted Group from that carried on at the date of this Agreement without the prior written consent of all the Lenders.
|
(b) |
The companies within the Restricted Group (other than the Drillship Owner) shall not engage in any business other than the ownership (direct or indirect, as the case may be) of the Drillship Owner or (if relevant) the operation of the Drillship as an Intra-Group Charterer.
|
(c) |
The Drillship Owner shall not engage in any business other than the ownership and operation of the Drillship.
|
22.15 |
Merger
|
22.16 |
Negative pledge
|
(a) |
None of the companies within the Restricted Group will create or permit to subsist any Security over any of its assets.
|
(b) |
None of the companies within the Restricted Group will:
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
(c) |
The Trust shall not and shall cause not to create or permit to subsist any Security over the shares of the Obligors including the Borrower.
|
(d) |
Paragraphs (a), (b) and (c) above do not apply to any Permitted Security.
|
22.17 |
Disposals
|
(a) |
None of the companies within the Restricted Group shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of the Drillship, the Earnings or the Insurances or other asset being the subject of Security pursuant to the Finance Documents (including but not limited to its interest in the Trust) or the whole or a substantial part of its assets.
|
(b) |
Paragraph (a) above does not apply to:
|
(i) |
any sale, lease, transfer or other disposal made on market value and arm's length terms and in compliance with Clause / (Prepayment and cancellation) of this Agreement; or
|
(ii) |
any Charter, unless otherwise prohibited under this Agreement.
|
22.18 |
Financial Indebtedness
|
22.19 |
Subordination
|
(a) |
Each Obligor shall procure that any current or future intra-group claims (including any Intra-Group Loan) owed by any Obligor to an Obligor or another company within the Restricted Group and all sums owed by any Obligor to the Manager shall be unsecured and fully subordinated, in terms of payment and priority, to the rights of the Finance Parties under the Finance Documents on terms acceptable to the Facility Agent.
|
(b) |
No payments of principal or interest under any Intra-Group Loan shall be permitted until all outstanding amounts under the Finance Documents have been repaid in full.
|
(c) |
Additionally each Obligor shall procure that no transfer, novation or assignment of any Intra-Group Loan or other claim (whether for security or otherwise) shall take place at any time to any other member of the Restricted Group.
|
(d) |
Each Obligor shall procure that any current or future Intra-Group Loan shall be subject to Security under an Assignment of Intra-Group Loan.
|
22.20 |
Investments, loans and guarantees
|
(a) |
None of the companies within the Restricted Group shall make any investments or acquisitions, except for any capital expenditure or investments related to ordinary upgrade or maintenance work of the Drillship.
|
(b) |
None of the companies within the Restricted Group shall provide any guarantee or indemnity to or for the benefit of any person in respect of any obligation or any other person or enter into any document under which it assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents and except liabilities under guarantees given in the ordinary course of business for operational reasons; or
|
(c) |
None of the companies within the Restricted Group shall make any loan or provide any form of credit or financial assistance to any person.
|
22.21 |
Share capital
|
(a) |
purchase, cancel or redeem any of its share capital;
|
(b) |
increase or reduce its authorised share capital;
|
(c) |
issue any further shares except to its shareholder and provided such new shares are made subject to the terms of the Shares Security immediately upon the issue thereof in a manner satisfactory to the Security Agent and the terms of the Shares Security are complied with; or
|
(d) |
appoint any further director, officer or secretary (unless the provisions of the Shares Security are complied with).
|
22.22 |
Dividends
|
22.23 |
Unlawfulness, invalidity and ranking; Security imperilled
|
(a) |
make it unlawful for an Obligor to perform any of its obligations under the Finance Documents;
|
(b) |
cause any obligation of an Obligor under the Finance Documents to cease to be legal, valid, binding or enforceable;
|
(c) |
cause any Finance Document to cease to be in full force and effect;
|
(d) |
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e) |
imperil or jeopardise the Transaction Security.
|
22.24 |
Sanctions
|
(a) |
No Obligor shall (and the Borrower shall ensure that no other Relevant Person will) take any action, make any omission or use (directly or indirectly) any proceeds of the Loan, in a manner that:
|
(i) |
is a breach of Sanctions; and/or
|
(ii) |
causes (or will cause) a breach of Sanctions by any Relevant Person or Finance Party and/or
|
(iii) |
otherwise benefits any Restricted Party.
|
(b) |
No Obligor shall (and the Borrower shall ensure that no other Relevant Person will) take any action or make any omission that results, or is likely to result, in it or any Finance Party becoming a Restricted Party or otherwise a target of sanctions ("target of sanctions" signifying an entity or person ("Target") that is a target of laws, regulations or orders concerning any trade, economic or financial sanctions or embargoes by virtue of prohibitions and/or restrictions being imposed on any US person or other legal or natural person subject to the jurisdiction or authority of a US Sanctions Authority which prohibit or restrict them from them engaging in trade, business or other activities with such Target without all appropriate licences or exemptions issued by all applicable US Sanctions Authorities).
|
22.25 |
Chartering
|
(a) |
No member of the Restricted Group shall enter into arrangements which provide an obligation to charter in (or similar arrangement) any tonnage from companies outside the Restricted Group.
|
(b) |
Any charter-in arrangement permitted pursuant to paragraph (a) above shall be made on market terms and otherwise on arm's length terms.
|
22.26 |
Kexim Guarantee protection
|
(a) |
The Borrower shall procure that no Obligor shall act (or omit to act) in a manner that is inconsistent with or which could result in a breach of any requirement of the Kexim Guarantor under or in connection with the Kexim Guarantee and, in particular:
|
(i) |
each Obligor shall do all that is reasonably necessary and within its control to ensure that all requirements of the Kexim Guarantor under or in connection with the Kexim Guarantee are complied with;
|
(ii) |
each Obligor will cooperate with the Facility Agent and the Kexim Guarantee Agent on its reasonable request to take all steps necessary on the part of the Obligors (or any of them) to ensure that the Kexim Guarantee remains in full force and effect throughout the Security Period; and
|
(iii) |
each Obligor will use reasonable efforts to assist the Kexim Guarantee Agent in making any claim under the Kexim Guarantee.
|
(b) |
The Borrower shall promptly:
|
(i) |
notify the Facility Agent and the Kexim Guarantee Agent promptly after it becomes aware of the occurrence of any Default or Event or Default;
|
(ii) |
provide copies of all financial or other information reasonably required by the Facility Agent and/or the Kexim Guarantee Agent to satisfy any request for information by the Kexim Guarantor pursuant to the Kexim Guarantee. The Borrower agrees that it shall be reasonable for the Facility Agent and/or the Kexim Guarantee Agent to make a request under this Clause 22.26 (Kexim Guarantee protection) if it is required to do so as a condition of maintaining the Kexim Guarantee in full force and effect.
|
22.27 |
Further assurance
|
(a) |
Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right or any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent, any Receiver or the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
(ii) |
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b) |
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Agent any document executed under this Clause 22.27 (Further assurance), that Obligor shall deliver to the Security Agent reasonable evidence that that Obligor's execution of such document has been duly authorised by it.
|
23 |
INSURANCE UNDERTAKINGS
|
23.1 |
General
|
(a) |
The undertakings in this Clause 23 (Insurance Undertakings) remain in force on and from the Delivery Date of the Drillship and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
|
(b) |
At any time where there is an Intra-Group Charterer within the Charter arrangements for the Drillship, the Drillship Owner shall be entitled to procure the performance of the undertakings in this Clause 23 (Insurance Undertakings) through the Intra-Group Charterer.
|
23.2 |
Maintenance of obligatory insurances
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(b) |
hull interest and/or freight interest;
|
(c) |
war risks (including blocking and trapping, acts of terrorism and piracy);
|
(d) |
protection and indemnity risks;
|
(e) |
risk of loss of Earnings; and
|
(f) |
such other insurances as the Lenders may reasonably require.
|
23.3 |
Terms of obligatory insurances
|
(a) |
The Drillship Owner shall effect such insurances:
|
(i) |
in dollars;
|
(ii) |
in the case of fire and usual marine risks and war risks, in an amount equal to at least 80 per cent. of the Insurance Value, while the remaining 20 per cent. may be taken out as hull interest and/ or freight interest insurance;
|
(iii) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(iv) |
in the case of protection and indemnity risks, in respect of the full tonnage of the Drillship;
|
(v) |
in the case of risk of loss of Earnings insurance, in an amount not less than the amount confirmed by the report from the insurance broker obtained in accordance with Clause 23.14(b) as being appropriate and adequate;
|
(vi) |
in each of the above cases on terms approved by the Facility Agent (acting on the authorisation of the Majority Lenders) and through such brokers, insurers, associations and clubs as the Facility Agent (acting on the authorisation of the Majority Lenders) from time to time may approve as appropriate for an internationally reputable major drilling contractor.
|
(b) |
For the purpose of this Clause 23 (Insurance Undertakings) the "Insurance Value" of the Drillship means at all times an amount which equal to or higher than the greater of:
|
(i) |
120 per cent. of the Loan; and
|
(ii) |
the Market Value of the Drillship.
|
23.4 |
Further protections for the Finance Parties
|
(a) |
subject always to paragraph (b), name the Drillship Owner and any Intra-Group Charterer as the main co assured unless the interest of every other co assured is limited:
|
(i) |
in respect of any obligatory insurances for hull and machinery and war risks;
|
(A) |
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
(B) |
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
(ii) |
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b) |
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(c) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(d) |
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(e) |
provide that the Security Agent may make proof of loss if the Drillship Owner or any Intra-Group Charterer fails to do so.
|
23.5 |
Renewal of obligatory insurances
|
(a) |
at least 14 days before the expiry of any obligatory insurance effected by it, renew that obligatory insurance; and
|
(b) |
procure that the brokers and/or the war risks and protection and indemnity associations (approved in accordance with 23.3(a)(vi)) with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
|
23.6 |
Copies of policies; letters of undertaking
|
(a) |
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b) |
a letter or letters of undertaking in a form required by the Facility Agent and including undertakings by the brokers that:
|
(i) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 23.4 (Further protections for the Finance Parties);
|
(ii) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
(iii) |
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
(iv) |
they will, if they have not received notice of renewal instructions from the Drillship Owner concerned or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances;
|
(v) |
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
(vi) |
they will not set off against any sum recoverable in respect of a claim relating to the Drillship under such obligatory insurances any premiums due for other Drillships under the fleet or other amounts due to them for other insurances or any other person, they waive any lien on the policies for premium due for other Drillships under the fleet cover or any sums received under them which they might have in respect of such premiums or other amounts due for other Drillships under the fleet cover and they will not cancel such obligatory insurances on this Drillship by reason of non-payment of such premiums for other Drillships under the fleet or other amounts; and
|
(vii) |
they will arrange for a separate policy to be issued in respect of the Drillship forthwith upon being so requested by the Facility Agent.
|
23.7 |
Copies of certificates of entry
|
(a) |
a copy of the certificate of entry for the Drillship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders ; and
|
(c) |
a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Drillship if trading in the United States or any other relevant jurisdiction.
|
23.8 |
Deposit of original policies
|
23.9 |
Payment of premiums
|
23.10 |
Guarantees
|
23.11 |
Compliance with terms of insurances
|
(a) |
The Drillship Owner shall not do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance effected by it invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance effected by it repayable in whole or in part.
|
(b) |
Without limiting paragraph (a) above, the Drillship Owner shall:
|
(i) |
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances effected by it, and (without limiting the obligation contained in paragraph (b)(iii) of Clause 23.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances effected by it are not made subject to any exclusions or qualifications to which the Facility Agent has not given its prior approval;
|
(ii) |
not make any changes relating to the Approved Classification or the Approved Classification Society or Manager or operator of the Drillship, without obtaining the underwriters' prior consent;
|
(iii) |
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Drillship is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation);
|
(iv) |
not employ the Drillship, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances effected by it, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify; and
|
(v) |
notify the Facility Agent in writing prior to the Drillship entering the territorial waters of the US, and arrange for such additional protection and indemnity cover as required by the Facility Agent.
|
(c) |
The Facility Agent may, at any time and for the account of the Borrower, obtain an insurance report from an independent marine insurance broker.
|
23.12 |
Alteration to terms of insurances
|
23.13 |
Settlement of claims
|
(a) |
not settle, compromise or abandon any claim under any obligatory insurance effected by it for Total Loss or for a Major Casualty; and
|
(b) |
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
23.14 |
Provision of information
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 23.15 (Mortgagee's interest and additional perils (pollution) insurances) or dealing with or considering any matters relating to any such insurances,
|
23.15 |
Mortgagee's interest and additional perils (pollution) insurances
|
(a) |
The Security Agent shall effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils (pollution) insurance, covering, in relation to mortgagee's interest marine insurance, not less than 120 per cent. of the Loan and, in relation to mortgagee's interest additional perils (pollution) insurance, not less than the amount of the Loan, and on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
|
(b) |
The Borrower shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
24 |
DRILLSHIP UNDERTAKINGS
|
24.1 |
General
|
24.2 |
Drillship's name and registration
|
(a) |
keep the Drillship registered in its name under the Approved Flag from time to time at its port of registration;
|
(b) |
not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and
|
(c) |
not change the name of the Drillship,
|
(i) |
the prior consent of the Majority Lenders, and:
|
(ii) |
the Drillship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on the Drillship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage and on such other terms and in such other form as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require; and
|
(iii) |
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require.
|
24.3 |
Repair and classification
|
(a) |
consistent with first class ship ownership and management practice; and
|
(b) |
so as to maintain the Approved Classification free of any material overdue recommendations nor adverse notations.
|
24.4 |
Modifications
|
24.5 |
Removal and installation of parts
|
(a) |
Subject to paragraphs (b) and (c) below, the Drillship Owner shall not remove any material part of the Drillship, or any item of equipment installed on the Drillship unless the part or item so removed is forthwith replaced by a suitable part or item which:
|
(i) |
is in the same condition as or better condition than the part or item removed;
|
(ii) |
is free from any Security in favour of any person other than the Security Agent; and
|
(iii) |
becomes, on installation on the Drillship, the property of the Drillship Owner and subject to the security constituted by the Mortgage.
|
(b) |
The Drillship Owner may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Drillship.
|
(c) |
Paragraph (a) shall not apply in respect of removal or parts or equipment in connection with cold stacking of the Drillship to the extent such removal is approved by the Technical Adviser.
|
24.6 |
Surveys
|
24.7 |
Inspection
|
24.8 |
Prevention of and release from arrest
|
(a) |
The Drillship Owner shall promptly discharge:
|
(i) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Drillship, its Earnings or its Insurances;
|
(ii) |
all taxes, dues and other amounts charged in respect of the Drillship, its Earnings or its Insurances; and
|
(iii) |
all other outgoings whatsoever in respect of the Drillship, its Earnings or its Insurances.
|
(b) |
The Drillship Owner shall forthwith upon receiving notice of the arrest of the Drillship or of its detention in exercise or purported exercise of any lien or claim procure its release by providing bail or otherwise as the circumstances may require.
|
24.9 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations:
|
(i) |
relating to its business generally; and
|
(ii) |
relating to the Drillship, its ownership, employment, operation, management and registration,
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; and
|
(c) |
without limiting paragraph (a) above, not employ the Drillship nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions.
|
24.10 |
ISPS Code
|
(a) |
procure the Drillship's and the company responsible for the Drillship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b) |
maintain an ISSC for the Drillship; and
|
(c) |
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
24.11 |
Trading in war zones
|
(a) |
consented to in advance and in writing by the underwriters of the Drillship's war risk insurances and fully covered by those insurances; or
|
(b) |
(to the extent not covered by those insurances) covered by additional insurance taken out by the Drillship Owner or any Intra-Group Charterer (as the case may be) at their expense, which additional insurance shall be deemed to be part of the insurances subject to the Transaction Security,
|
(i) |
the war risk insurers have been duly notified and have agreed to the Drillship entering the specified war zone; and
|
(ii) |
it has taken out all insurances necessary to cover all additional risk.
|
24.12 |
Provision of information
|
(a) |
the Drillship, its employment, position and engagements;
|
(b) |
any Earnings and payments and amounts due to any master and crew;
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Drillship and any payments made by it in respect of the Drillship;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, the Manager's compliance and the compliance of the Drillship with the ISM Code and the ISPS Code,
|
24.13 |
Notification of certain events
|
(a) |
any casualty to the Drillship which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which the Drillship has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requisition of the Drillship for hire;
|
(d) |
any requirement or recommendation made in relation to the Drillship by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e) |
any arrest or detention of the Drillship, any exercise or purported exercise of any lien on the Drillship or its Earnings or any requisition of the Drillship for hire;
|
(f) |
any intended dry docking of the Drillship;
|
(g) |
any Environmental Claim made against the Drillship Owner, the Borrower or in connection with the Drillship, or any Environmental Incident;
|
(h) |
any claim made by it under the Building Contract;
|
(i) |
any default (by any party) under a Charter;
|
(j) |
any claim for breach of the ISM Code or the ISPS Code being made against the Drillship Owner, the Manager or otherwise in connection with the Drillship; or
|
(k) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
24.14 |
Restrictions on chartering, appointment of manager etc.
|
(a) |
let the Drillship on demise charter for any period other than a Bareboat Charter;
|
(b) |
enter into any time or consecutive voyage charter in respect of the Drillship other than a Satisfactory Drilling Contract;
|
(c) |
appoint a manager of the Drillship other than the Manager;
|
(d) |
de activate or lay up on a "cold stack" basis the Drillship except as consented to in writing by all the Lenders; or
|
(e) |
put the Drillship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed USD 15,000,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on the Drillship or its Earnings for the cost of such work or for any other reason.
|
24.15 |
Termination of or amendment to agreements
|
(a) |
No Obligor shall, without the prior written consent of all the Lenders, waive any right under the Total Drilling Contract.
|
(b) |
No Obligor shall, without the prior written consent of the Majority Lenders, terminate or make any material amendments to the Building Contract or, if relevant, any Satisfactory Drilling Contract.
|
24.16 |
Notice of Mortgage
|
24.17 |
Sharing of Earnings
|
24.18 |
Marketing of the Drillship
|
(a) |
The Obligors shall continue to market the Drillship for appropriate employment and use commercially reasonable efforts to secure a Satisfactory Drilling Contract to ensure compliance with the requirements under Appendix 5 Article 11 of the Total Drilling Contract.
|
(b) |
The Borrower shall, on a monthly basis, provide the Facility Agent with documentation evidencing its marketing efforts required by paragraph (a) above as reasonably required by the Lenders.
|
24.19 |
Manager Change of Control
|
24.20 |
Notification of compliance
|
25 |
SECURITY COVER AFTER THE INTERIM MATURITY DATE
|
25.1 |
General
|
25.2 |
Valuations of Market Value
|
(a) |
The Market Value of the Drillship shall be determined at the Delivery Date of the Drillship and semi-annually thereafter, and at such other times as the Facility Agent may request.
|
(b) |
The valuations for the purpose of determining the Market Value of the Drillship shall be obtained at the cost of the Borrower.
|
(c) |
The Borrower shall promptly provide the Facility Agent and the Approved Brokers acting under this Clause 25 (Security Cover after the Interim Maturity Date) with any information which the Facility Agent or the Approved Brokers may request for the purposes of the valuations.
|
25.3 |
Minimum required security cover
|
(a) |
the Market Value of the Drillship; plus
|
(b) |
the net resalable value of additional non-cash Security previously provided under this Clause 25 (Security Cover after the Interim Maturity Date),
|
25.4 |
Provision of additional security; prepayment
|
(a) |
provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Facility Agent may approve or require; or
|
(b) |
prepay such part of the Loan required in or der to eliminate the shortfall.
|
25.5 |
Value of additional security
|
25.6 |
Prepayment mechanism
|
26 |
ACCOUNTS AND APPLICATION OF EARNINGS AND OTHER AMOUNTS
|
26.1 |
Payment of Earnings
|
(a) |
Subject to Clause 26.2 (Receipt of amounts under the Put and Call Option Agreement), each Obligor shall ensure that, subject only to the provisions of the General Assignments and the Account Security (as applicable), all Earnings received by the Borrower, the Drillship Owner and any Intra-Group Charterer, including but not limited to the Total Termination Payments, are paid in to its Earnings Account.
|
(b) |
The Earnings Accounts shall be blocked and the Borrower shall ensure that the Account Bank shall be authorised, on the 6' of each Month (or on such dates as the Facility Agent may from time to time specify to the Account Bank), to apply the balance on each Earnings Account in the following order:
|
(i) |
first, in payment of fees, costs and expenses of the Account Bank, the Facility Agent and the Security Agent;
|
(ii) |
second, in payment to the Operating Account of:
|
(A) |
an amount equal to USD 10,000 per day for the next Month (the "Monthly OPEX Transfer"), to be applied by the Obligors as follows:
|
(1) |
firstly, for the payment of the Permitted Operating Expenses which are due and payable in the relevant Budget Month in accordance with the Budget approved by all the Lenders (following consultation with the Technical Advisor) pursuant to Clause 19.5 (Budget); and
|
(2) |
secondly, the balance between the Monthly OPEX Transfer and the Permitted Operating Expenses for the relevant Budget Month paid in accordance with (1) above (constituting, as at the Effective Date, USD 3,289 per day) to serve as an operating buffer sitting on the Operating Account; and
|
(B) |
an amount equal to the Tax and Commission as set out in the Budget for the relevant Budget Month to be applied by the Obligors in payment of Tax and Commission which are due and payable in accordance with the Budget approved by all the Lenders (following consultation with the Technical Advisor) pursuant to Clause 19.5 (Budget);
|
(iii) |
third, in payment to the Facility Agent for its distribution to the Lenders on each Repayment Date and on each due date for the payment of interest under this Agreement in accordance with Clause 35.2 (Distributions by the Facility Agent) of:
|
(A) |
the amount of the Repayment Instalment falling due on the next Repayment Date; and
|
(B) |
the aggregate amount of interest (including, for the avoidance of doubt, the Kexim Guarantee Premium) on the Loan which is payable on the next due date for payment of interest on the Loan; and
|
(iv) |
fourth, any remaining amounts standing to the credit of the relevant Earnings Account after application pursuant to the foregoing paragraphs shall:
|
(A) |
until the credit balance on the Retention Account (including the minimum balance of USD 5,000,000 required in accordance with Clause 20.2 (Minimum credit balance on Retention Account) is USD 20,000,000, be transferred to the Retention Account; and /or
|
(B) |
at any time when the credit balance on the Retention Account is USD 20,000,000 in accordance with paragraph (A) above, be deemed as excess cash flow ("Excess Cash Flow") and transferred to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
In the event that:
|
(i) |
the instalment of the Total Termination Payment due on 30 August 2016 is not received into the relevant Earnings Account by the first Repayment Date after the Effective Date; and
|
(ii) |
as a result, there are insufficient funds standing to the credit of the relevant Earnings Account for settling the sums due under sub-paragraph (iii) of paragraph (b) above,
|
(A) |
failure to receive such instalment from Total within the grace period set out in paragraph (b) of Clause 27.3 (Non-payment or other events under Total Drilling Contract) shall constitute an Event of Default; and
|
(B) |
such loan shall be fully subordinated to the Loan and shall not be repayable to the Purchaser unless and until the instalment from Total has been paid by Total and credited to the relevant Earnings Account.
|
26.2 |
Receipt of amounts under the Put and Call Option Agreement
|
26.3 |
Operating Account
|
(a) |
If at any time the credit balance of the amount on the Operating Account is insufficient to cover the Permitted Operating Expenses the Obligors may, by notice to the Facility Agent, request the prior consent of the Majority Lenders (following consultation with the Technical Advisor) to increase the Monthly OPEX Transfer for the next Month or such other period as specified by the Obligors.
|
(b) |
The Obligors shall ensure that:
|
(i) |
the Account Bank shall be authorised, on such dates as the Facility Agent may from time to time specify to the Account Bank, to send transcripts and evidence of the credit balance on the Operating Account to the Facility Agent; and
|
(ii) |
on a quarterly basis, starting on 6 December 2016 and on a quarterly basis thereafter (each such date being a "Test Date"), any credit on the Operating Account (including any part of the operating buffer) in excess of USD 1,000,000 shall, on the date falling one Month after the Test Date, be transferred by the Account Bank to the Facility Agent for application in accordance with Clause 7.6 (Cash sweep).
|
(c) |
The Security Agent may block the Operating Account upon the occurrence of a Default.
|
26.4 |
Retention account
|
(a) |
If the credit balance on the Earnings Account is insufficient in any calendar month for the servicing of the amounts set out in paragraph (b)(i) to paragraph (b)(iii) of Clause 26.1 (Payment of Earnings) above, the Facility Agent shall be entitled to make up all or part of the Insufficiency by withdrawing the required amount from the Retention Account and applying it in accordance with paragraph (b)(i) to paragraph (b)(iii) of Clause 26.1 (Payment of Earnings) above, provided that the minimum balance of USD 5,000,000 shall always remain on the Retention Account in accordance with Clause 20.2 (Minimum credit balance on Retention Account), unless an Event of Default has occurred.
|
(b) |
Subject to paragraph (a) above, the Retention Account shall be blocked at all times.
|
26.5 |
Interest accrued on Retention Account
|
26.6 |
Release of accrued interest
|
26.7 |
Location of Accounts
|
(a) |
comply with any requirement of the Facility Agent as to the location or relocation of any Earnings Account, the Retention Account and the Operating Account (or either of them); and
|
(b) |
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts, the Retention Account and the Operating Account.
|
27 |
EVENTS OF DEFAULT
|
27.1 |
General
|
27.2 |
Non-payment
|
(a) |
its failure to pay is caused by an administrative or technical error in the banking system, appropriate evidence of which is provided to the Facility Agent; and
|
(b) |
payment is made within five Business Days of its due date.
|
27.3 |
Non-payment or other events under Total Drilling Contract
|
(a) |
Any party to the Total Drilling Contract rescinds or purports to rescind or repudiates or purports to repudiate the Total Drilling Contract or evidences an intention to rescind or repudiate the Total Drilling Contract.
|
(b) |
Total does not pay on the due date any amount of the Total Termination Payments payable under the Total Drilling Contract unless payment is made within 60 days of its due date.
|
(c) |
The Total Drilling Contract is amended or the Drillship Owner waives any of its rights under the Total Drilling Contract without the prior written consent of all the Lenders.
|
(d) |
Any disputes are commenced or threatened in relation to amounts due under the Total Drilling Contract.
|
(e) |
Any:
|
(i) |
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 27.11 (Insolvency proceedings) or creditors' process described in Clause 27.12 (Creditors' process); or
|
(ii) |
circumstance described in Clause 27.10 (Insolvency),
|
27.4 |
Non-compliance under Put and Call Option Agreement
|
27.5 |
Specific obligations
|
27.6 |
Other obligations
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 27.2 (Non-payment), Clause 27.3 (Non-payment or other events under Total Drilling Contract), Clause 27.4 (Non-compliance under Put and Call Option Agreement) and Clause 27.5 (Specific obligations)).
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 calendar days of the Facility Agent giving notice to the Borrower or (if earlier) the Borrower becoming aware of the failure to comply.
|
27.7 |
Kexim Guarantee
|
27.8 |
Misrepresentation
|
27.9 |
Cross default
|
(a) |
Any Financial Indebtedness of any member of the Restricted Group is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any member of the Restricted Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any member of the Restricted Group is cancelled or suspended by a creditor of any member of the Restricted Group as a result of an event of default (however described).
|
(d) |
Any creditor of any member of the Restricted Group becomes entitled to declare any Financial Indebtedness of any member of the Restricted Group due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e) |
No Event of Default will occur under this Clause 27.9 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than USD 100,000 (or its equivalent in any other currency).
|
27.10 |
Insolvency
|
(a) |
An Obligor or any member of the Restricted Group is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of an Obligor or any member of the Restricted Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
27.11 |
Insolvency proceedings
|
(a) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Restricted Group other than a solvent liquidation or reorganisation of any member of the Restricted Group which is not an Obligor;
|
(b) |
a composition, compromise, assignment or arrangement with any creditor of any member of the Restricted Group;
|
(c) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Restricted Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Restricted Group or any of its assets; or
|
(d) |
enforcement of any Security over any assets of any member of the Restricted Group,
|
27.12 |
Creditors' process
|
27.13 |
Loss of property
|
27.14 |
Unlawfulness, invalidity and ranking
|
(a) |
It is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents.
|
(b) |
Any obligation of any Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c) |
Any Finance Document ceases to be in full force and effect or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d) |
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
27.15 |
Security imperilled
|
27.16 |
Cessation of business
|
27.17 |
Repudiation and rescission of agreements
|
27.18 |
Authorisation and consents
|
27.19 |
Litigation
|
27.20 |
Material adverse change
|
27.21 |
Acceleration
|
(a) |
cancel the Total Commitments, whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable; and/or
|
(c) |
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders,
|
27.22 |
Enforcement of security
|
27.23 |
Instruction under the Put and Call Option Agreement
|
28 |
CHANGES TO THE LENDERS
|
28.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
28.2 |
Conditions of assignment or transfer
|
(a) |
The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i) |
to another Lender or an Affiliate of a Lender; or
|
(ii) |
made at a time when a Default is continuing.
|
(b) |
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 10 Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
(c) |
The consent of the Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to any amount payable under Clause 14.3 (Mandatory Cost).
|
(d) |
An assignment will only be effective on:
|
(i) |
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and
|
(ii) |
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(e) |
A transfer will only be effective if the procedure set out in Clause 28.5 (Procedure for transfer) is complied with.
|
(f) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13 (Increased Costs),
|
(g) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
28.3 |
Assignment or transfer fee
|
28.4 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
(ii) |
the financial condition of any Obligor;
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction Security; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities throughout the Security Period.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 28 (Changes to the Lenders); or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
28.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in 28.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b) |
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations");
|
(ii) |
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii) |
the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(iv) |
the New Lender shall become a Party as a "Lender".
|
28.6 |
Procedure for assignment
|
(a) |
Subject to the conditions set out in Clause 28.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on Its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(b) |
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c) |
Subject to Clause 28.9 (Pro rata interest settlement), on the Transfer Date:
|
(i) |
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii) |
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 28.6 (Procedure for assignment) to assign their rights under the Finance Documents (but not to obtain a release by that Obligor from the obligations owed to that Obligor by any Lender nor to effect the assumption of equivalent obligations by a New Lender, in each case without the consent of the relevant Obligor or unless in accordance with Clause 28.5 (Procedure for transfer)), provided that they comply with the conditions set out in Clause 28.2 (Conditions of assignment or transfer).
|
28.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
28.8 |
Security over Lenders' rights
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
28.9 |
Pro rata interest settlement
|
(a) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(b) |
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
(ii) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 28.9 (Pro rata interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts.
|
28.10 |
Transfer to the Kexim Guarantor
|
(a) |
If the Kexim Guarantor makes a payment under the Kexim Guarantee, then, to the extent that it is required to do so by the Kexim Guarantor under the Kexim Guarantee, a Kexim Guaranteed Lender receiving a payment pursuant to the Kexim Guarantee shall, at the cost of the Borrower and without any requirement for the consent of the Borrower, transfer to the Kexim Guarantor (in accordance with, and subject to, Clause 29 (Changes to the Obligors)) a part of its participation in the Loan equal to the amount paid to it by the Kexim Guarantor.
|
(b) |
A transfer pursuant to paragraph (a) above shall not limit the rights of the relevant Kexim Guaranteed Lender to recover any remaining part of its participation in a Loan or any other moneys owing to it under this Agreement or any other Finance Documents.
|
(c) |
If the Kexim Guarantor makes any payment to a Kexim Guaranteed Lender under the Kexim Guarantee:
|
(i) |
the obligations and liabilities of the Obligors (and of any of them) under this Agreement and each of the other Finance Documents shall not be reduced, discharged nor affected in any way;
|
(ii) |
the Kexim Guarantor shall be subrogated to the rights of that Kexim Guaranteed Lender against the Obligors under this Agreement and each of the other Finance Documents;
|
(iii) |
the Kexim Guarantor shall be entitled to the extent of such payment to exercise the rights of that Kexim Guaranteed Lender against the Obligors (and against any of them) under this Agreement and each of the other Finance Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued on it are fully reimbursed to the Kexim Guarantor; and
|
(iv) | (iv) | with respect to the obligations and liabilities of the Obligors owed to that Kexim Guaranteed Lender under the Finance Documents (or any of them), such obligations and liabilities shall additionally be owed to the Kexim Guarantor by way of subrogation of the rights of that Kexim Guaranteed Lender. |
(d) |
The Obligors shall indemnify the Kexim Guarantor in respect of any costs or expenses (including legal fees) suffered or incurred by it in connection with any transfer referred to in paragraph (a) above.
|
29 |
CHANGES TO THE OBLIGORS
|
30 |
THE FACILITY AGENT AND THE MANDATED LEAD ARRANGERS
|
30.1 |
Appointment of the Facility Agent
|
(a) |
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each other Finance Party authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
30.2 |
Instructions
|
(a) |
The Facility Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties.
|
(e) |
If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 43 (Amendments and Waivers), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each relevant Party (other than the Facility Agent) whose consent would have been required in respect of that amendment or waiver.
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties.
|
(g) |
The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 30.2 (Instructions), in the absence of instructions, the Facility Agent shall not be obliged to take any action (or refrain from taking action) even if it considers acting or not acting to be in the best interests of the Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.
|
(i) |
The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
30.3 |
Duties of the Facility Agent
|
(a) |
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
Subject to paragraph (c) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(c) |
Without prejudice to Clause 28.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement.
|
(d) |
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f) |
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Mandated Lead Arrangers or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
(g) |
The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
30.4 |
Role of the Mandated Lead Arrangers
|
30.5 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Facility Agent or the Mandated Lead Arrangers as a trustee or fiduciary of any other person.
|
(b) |
Neither the Facility Agent nor the Mandated Lead Arrangers shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
30.6 |
Application of receipts
|
30.7 |
Business with the Restricted Group
|
30.8 |
Rights and discretions
|
(a) |
The Facility Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 27.2 (Non-payment));
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f) |
The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arrangers are obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
The Facility Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Facility Agent by any Lender or the identity of any such Lender for the purpose of sub-paragraph (ii) of paragraph (a) of Clause 10.2 (Market disruption).
|
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
30.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party or Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
30.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
30.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 35.11 (Disruption to Payment Systems etc.)) or any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Facility Agent or the Mandated Lead Arrangers to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages.
|
30.12 |
Lenders' indemnity to the Facility Agent
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 35.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor.
|
30.13 |
Resignation of the Facility Agent
|
(a) |
The Facility Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d) |
If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent), agree with the proposed successor Facility Agent amendments to this Clause 30 (The Facility Agent and the Mandated Lead Arrangers) and any other term of this Agreement (in each case in accordance with Clause 43 (Amendments and Waivers)) dealing with the rights or obligations of the Facility Agent consistent with then current market practice for the appointment and protection of corporate trustees and those amendments will bind the Parties.
|
(e) |
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
(f) |
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(g) |
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to the Servicing Banks) and this Clause 30 (The Facility Agent and the Mandated Lead Arrangers) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(h) |
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (e) above shall be for the account of the Borrower.
|
(i) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
(j) |
The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:
|
(i) |
the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii) |
the information supplied by the Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii) |
the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
30.14 |
Confidentiality
|
(a) |
In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
30.15 |
Relationship with the other Finance Parties
|
(a) |
Subject to Clause 28.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b) |
Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost in accordance with Clause 14.3 (Mandatory Cost).
|
(c) |
Each Finance Party shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Finance Party shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
|
(d) |
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number
|
30.16 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
30.17 |
Reference Banks
|
30.18 |
Facility Agent's management time
|
(a) |
Any amount payable to the Facility Agent under Clause 14.4 (Indemnity to the Servicing Banks), Clause 16 (Costs and Expenses) and Clause 30.12 (Lenders' indemnity to the Facility Agent) shall include the cost of utilising the Facility Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the Borrower and the other Finance Parties, and is in addition to any fee paid or payable to the Facility Agent under Clause 11 (Fees).
|
30.19 |
Deduction from amounts payable by the Facility Agent
|
30.20 |
Reliance and engagement letters
|
30.21 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
31 |
THE SECURITY AGENT
|
31.1 |
Trust
|
(a) |
The Security Agent declares that it holds the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 31 (The Security Agent) and the other provisions of the Finance Documents.
|
(b) |
Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
31.2 |
Parallel Debt (Covenant to pay the Security Agent)
|
(a) |
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt.
|
(b) |
The Parallel Debt of an Obligor:
|
(i) |
shall become due and payable at the same time as its Corresponding Debt;
|
(ii) |
is independent and separate from, and without prejudice to, its Corresponding Debt.
|
(c) |
For purposes of this Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent:
|
(i) |
is the independent and separate creditor of each Parallel Debt;
|
(ii) |
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
(iii) |
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d) |
The Parallel Debt of an Obligor shall be:
|
(i) |
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
(ii) |
increased to the extent that its Corresponding Debt has increased,
|
(A) |
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
(B) |
increased to the extent that its Parallel Debt has increased,
|
(e) |
All amounts received or recovered by the Security Agent in connection with this Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)) to the extent permitted by applicable law, shall be applied in accordance with Clause 35.5 (Application of receipts; partial payments).
|
(f) |
This Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
|
31.3 |
Enforcement through Security Agent only
|
31.4 |
Instructions
|
(a) |
The Security Agent shall:
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Facility Agent acting on the instructions of:
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B) |
in all other cases, the Majority Lenders; and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties).
|
(b) |
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Facility Agent acting on the instructions of the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Facility Agent acting on the instructions of the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d) |
Paragraph (a) above shall not apply:
|
(i) |
where a contrary indication appears in a Finance Document;
|
(ii) |
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii) |
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the relevant Secured Parties.
|
(iv) |
in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of:
|
(A) |
Clause 31.27 (Deductions from receipts); and
|
(B) |
Clause 31.28 (Prospective liabilities).
|
(e) |
If giving effect to instructions given by the Facility Agent acting on the instructions of the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an
|
(f) |
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i) |
it has not received any instructions as to the exercise of that discretion; or
|
(ii) |
the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above,
|
(g) |
The Security Agent may refrain from acting in accordance with any instructions of the Facility Agent acting on the instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h) |
Without prejudice to the remainder of this Clause 31.4 (Instructions), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
|
(i) |
The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security.
|
31.5 |
Duties of the Security Agent
|
(a) |
The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b) |
The Security Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e) |
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
31.6 |
No fiduciary duties
|
(a) |
Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Obligor.
|
(b) |
The Security Agent shall not be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account.
|
31.7 |
Business with the Restricted Group
|
31.8 |
Rights and discretions
|
(a) |
The Security Agent may:
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii) |
assume that:
|
(A) |
any instructions received by it from the Facility Agent acting on the instructions of the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii) |
rely on a certificate from any person:
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b) |
The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that:
|
(i) |
no Default has occurred;
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(e) |
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the
|
(f) |
The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not:
|
(i) |
be liable for any error of judgment made by any such person; or
|
(ii) |
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(g) |
Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents.
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
31.9 |
Responsibility for documentation
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor or any other person in, or in connection with, any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(c) |
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to Insider dealing or otherwise.
|
31.10 |
No duty to monitor
|
(a) |
whether or not any Default has occurred;
|
(b) |
as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
31.11 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for:
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct;
|
(ii) |
exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Security Property; or
|
(iii) |
any shortfall which arises on the enforcement or realisation of the Security Property; or
|
(iv) |
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b) |
No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
|
(c) |
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Security Agent if the Security Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Security Agent for that purpose.
|
(d) |
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party,
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security Agent, any Receiver or Delegate arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages.
|
31.12 |
Lenders' indemnity to the Security Agent
|
(a) |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b) |
Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c) |
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
31.13 |
Resignation of the Security Agent
|
(a) |
The Security Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, the Security Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Security Agent.
|
(c) |
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent.
|
(d) |
The retiring Security Agent shall make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Borrower shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all costs and expenses (including legal fees)
|
(e) |
The Security Agent's resignation notice shall only take effect upon:
|
(i) |
the appointment of a successor; and
|
(ii) |
the transfer, by way of a document expressed as a deed, of all the Security Property to that successor.
|
(f) |
Upon the appointment of a successor, the retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 31.23 (Winding up of trust) and paragraph (d) above) but shall remain entitled to the benefit Clause 14.5 (Indemnity to the Security Agent) and this Clause 31 (The Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g) |
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrower.
|
(h) |
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
31.14 |
Confidentiality
|
(a) |
In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party.
|
31.15 |
Credit appraisal by the Finance Parties
|
(a) |
the financial condition, status and nature of each member of the Restricted Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c) |
whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document, the Security Property, the transactions contemplated by the Finance Documents
|
(d) |
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e) |
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
31.16 |
Reliance and engagement letters
|
31.17 |
No responsibility to perfect Transaction Security
|
(a) |
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;
|
(b) |
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c) |
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d) |
take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e) |
require any further assurance in relation to any Transaction Security.
|
31.18 |
Insurance by Security Agent
|
(a) |
The Security Agent shall not be obliged:
|
(i) |
to insure any of the Charged Property;
|
(ii) |
to require any other person to maintain any insurance; or
|
(iii) |
to verify any obligation to arrange or maintain insurance contained in any Finance Document,
|
(b) |
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Facility Agent acting on the instructions of the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request.
|
31.19 |
Custodians and nominees
|
31.20 |
Delegation by the Security Agent
|
(a) |
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b) |
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.
|
(c) |
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any such delegate or sub delegate.
|
31.21 |
Additional Security Agents
|
(a) |
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i) |
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii) |
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii) |
for obtaining or enforcing any judgment in any jurisdiction,
|
(b) |
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c) |
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
31.22 |
Acceptance of title
|
31.23 |
Winding up of trust
|
(a) |
all of the Secured Liabilities and all other obligations secured by the Transaction Security have been fully and finally discharged; and
|
(b) |
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,
|
(i) |
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Transaction Security; and
|
(ii) |
any Security Agent which has resigned pursuant to Clause 31.13 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its rights under each Transaction Security.
|
31.24 |
Powers supplemental to Trustee Acts
|
31.25 |
Disapplication of Trustee Acts
|
31.26 |
Application of receipts
|
(a) |
Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are attributable to, Security Property (for the purposes of this Clause 31, the "Recoveries") shall be transferred to the Facility Agent for application in accordance with Clause 35.5 (Application of receipts; partial payments).
|
(b) |
Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
|
(i) |
under Clause 14.5 (Indemnity to the Security Agent) or any other indemnity in favour of the Security Agent under the Finance Documents to be indemnified out of the Charged Property; and
|
(ii) |
under any Finance Document to credit any moneys received or recovered by it to any suspense account.
|
(c) |
Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Agent.
|
(d) |
The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause 31.26 (Application of receipts) in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated.
|
31.27 |
Deductions from receipts
|
(a) |
Before transferring any moneys to the Facility Agent under Clause 31.26 (Application of receipts), the Security Agent may, in its discretion:
|
(i) |
deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable;
|
(ii) |
set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and (iii)pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
|
(b) |
For the purposes of sub-paragraph (i) of paragraph (a) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be treated as due and payable, even if no demand has yet been served.
|
31.28 |
Prospective liabilities
|
(a) |
any sum to the Security Agent, any Receiver or any Delegate; and
|
(b) |
any part of the Secured Liabilities,
|
31.29 |
Investment of proceeds
|
31.30 |
Currency conversion
|
(a) |
For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
31.31 |
Good discharge
|
31.32 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by any Obligor or any other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
32 |
KEXIM GUARANTEE AGENT
|
32.1 |
Appointment and duties of Kexim Guarantee Agent
|
(a) |
Each Kexim Guaranteed Lender appoints the Kexim Guarantee Agent to act as its agent under and in connection with the Kexim Guarantee and the Finance Documents.
|
(b) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Kexim Guarantee Agent under, or in connection with, the Kexim Guarantee and the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(c) |
The Kexim Guarantee Agent shall promptly forward to each Kexim Guaranteed Lender the original or a copy of any document which is delivered to the Kexim Guarantee Agent for that Kexim Guaranteed Lender by any other Party or by the Kexim Guarantor.
|
(d) |
Except where the Kexim Guarantee or a Finance Document specifically provides otherwise, the Kexim Guarantee Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e) |
Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to consult with the Kexim Guarantor (where necessary) in relation to waivers, consents or approvals under or pursuant to the Finance Documents, including but not limited to any amendment, modification or waiver which:
|
(i) |
varies the dates for, or increases the amount of, or changes the currency or the priority of, any payment of any amount under the Finance Documents;
|
(ii) |
amends, extends or waives any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) of Clause 4.2 (Further conditions precedent) of the Facilities Agreement; or
|
(iii) |
imposes a new obligation on the Kexim Guarantor, or increases an existing obligation of the Kexim Guarantor under the Kexim Guarantee or any other Finance Document,
|
(f) |
The Kexim Guarantee Agent's duties under the Kexim Guarantee and the Finance Documents are solely mechanical and administrative in nature and the Kexim Guarantee Agent shall have no duties or obligations as agent other than those expressly conferred on it by the Finance Documents.
|
(g) |
Nothing in this Agreement or any Finance Document shall permit or oblige any Kexim Guaranteed Lender or the Kexim Guarantee Agent to act (or omit to act) in a manner that is inconsistent with any requirement under or in connection with the Kexim Guarantee.
|
(h) |
In case of any conflict between the Finance Documents and the Kexim Guarantee, the Kexim Guarantee shall, as between the Kexim Guaranteed Lenders and the Kexim Guarantor, prevail, and to the extent of such conflict or inconsistency, none of the Kexim Guaranteed Lenders or the Kexim Guarantee Agent shall assert to the Kexim Guarantor, the terms of the relevant Finance Documents.
|
32.2 |
Application of certain Clauses
|
32.3 |
Kexim Guaranteed Lenders' representations
|
(a) |
no information provided by it in writing to the Kexim Guarantee Agent or to the Kexim Guarantor prior to the date of this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission;
|
(b) |
it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the Kexim Guarantee Agent being in breach of any of its obligations in its capacity as Kexim Guarantee Agent under the Kexim Guarantee or any of the Finance Documents, or result in the Kexim Guaranteed Lenders being in breach of any of their respective obligations as insured parties under the Kexim Guarantee, or which would otherwise prejudice the Kexim Guarantee Agent's ability to make a claim on behalf of the Kexim Guaranteed Lenders under the Kexim Guarantee;
|
(c) |
it has reviewed the Kexim Guarantee and is aware of its provisions; and
|
(d) |
the representations and warranties made by the Kexim Guarantee Agent on its behalf under the Kexim Guarantee are true and correct with respect to it in all respects.
|
32.4 |
Claims under Kexim Guarantee
|
(a) |
All communication between the Kexim Guaranteed Lenders and the Kexim Guarantor shall be carried out through the Kexim Guarantee Agent.
|
(b) |
Each Kexim Guaranteed Lender acknowledges and agrees that it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with the Kexim Guarantee except through the Kexim Guarantee Agent and that all of the rights of the Kexim Guaranteed Lenders under the Kexim Guarantee shall only be exercised by the Kexim Guarantee Agent.
|
32.5 |
Payments by the Kexim Guarantor
|
33 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
34 |
SHARING AMONG THE FINANCE PARTIES
|
34.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b) |
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 35 (Payment Mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c) |
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 35.5 (Application of receipts; partial payments).
|
34.2 |
Redistribution of payments
|
34.3 |
Recovering Finance Party's rights
|
34.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and
|
(b) |
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
34.5 |
Exceptions
|
(a) |
This Clause 34 (Sharing among the Finance Parties) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
35 |
PAYMENT MECHANICS
|
35.1 |
Payments to the Facility Agent
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, specifies.
|
35.2 |
Distributions by the Facility Agent
|
35.3 |
Distributions to an Obligor
|
35.4 |
Clawback and pre-funding
|
(a) |
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b) |
Unless paragraph (c) below applies, if the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(c) |
If the Facility Agent is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
|
(i) |
the Borrower shall on demand refund it to the Facility Agent; and
|
(ii) |
the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
35.5 |
Application of receipts; partial payments
|
(a) |
Subject to paragraph (b) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the following order:
|
(i) |
first, in or towards payment of any amounts then due and payable under any of the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document (except for the Hedging Agreements) but which the Facility Agent, by notice to the Borrower and the other Finance Parties, states in its opinion will or may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them;
|
(iii) |
thirdly, in or towards payment of any sum due but unpaid under the Hedging Agreements; and
|
(iv) |
lastly, any surplus shall he paid to the Borrower or to any other person who appears to be entitled to it.
|
(b) |
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i) |
first, in or towards payment pro rata of any due but unpaid Kexim Guarantee Premium and any unpaid fees, costs and expenses of the Facility Agent and the Security Agent under the Finance Documents, except for the Hedging Agreements;
|
(ii) |
secondly, in or towards satisfaction pro rata of all amounts to any Finance Party under Clause 14.2(b) which amounts have been already paid by that Finance Party to the Facility Agent, Security Agent, any Receiver or Delegate (as the case may be) pursuant to Clause 30.12 (Lenders' indemnity to the Facility Agent) or Clause 31.12 (Lenders' indemnity to the Security Agent);
|
(iii) |
thirdly, in or towards payment pro rata of any accrued interest or commission due to any Finance Party but unpaid under this Agreement;
|
(iv) |
fourthly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(v) |
fifthly , in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents (except for the Hedging Agreements); and
|
(vi) |
lastly, in or towards payment pro rata of any sum due but unpaid under the Hedging Agreements.
|
(c) |
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in sub-paragraphs (i) to (vi) of paragraph (b) above.
|
(d) |
Paragraphs (a), (b) and (c) above will override any appropriation made by an Obligor.
|
35.6 |
No set-off by Obligors
|
35.7 |
Business Days
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b) |
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
35.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) and (c) below, dollar is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
35.9 |
Change of currency
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrower); and
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
35.10 |
Currency Conversion
|
(a) |
For the purpose of, or pending any payment to be made by any Servicing Bank under any Finance Document, such Servicing Bank may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange.
|
(b) |
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
35.11 |
Disruption to Payment Systems etc.
|
(a) |
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b) |
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c) |
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d) |
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties and any Obligors as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 43 (Amendments and Waivers);
|
(e) |
the Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 35.11 (Disruption to Payment Systems etc.); and
|
(f) |
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
35.12 |
Hedging Agreement
|
36 |
SET-OFF
|
37 |
NOTICES
|
37.1 |
Communications in writing
|
37.2 |
Addresses
|
(a) |
in the case of the Borrower, that specified in Part A of Schedule 1 (the Borrower);
|
(b) |
in the case of each Lender or any other Obligor, that specified in Part B of Schedule 1 (the Guarantors) or Part C of Schedule 1 (the Lenders), respectively, or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c) |
in the case of the Facility Agent, that specified in Part D of Schedule 1 (The Servicing Banks); and
|
(d) |
in the case of the Security Agent, that specified in Part D of Schedule 1 (The Servicing Banks),
|
37.3 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i) |
if by way of fax, when received in legible form; or
|
(ii) |
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post with postage prepaid in an envelope addressed to it at that address,
|
(b) |
Any communication or document to be made or delivered to a Servicing Bank will be effective only when actually received by that Servicing Bank and then only if it is expressly marked for the attention of the department or officer of that Servicing Bank specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Bank shall specify for this purpose).
|
(c) |
All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
37.4 |
Notification of address and fax number
|
(a) |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 37.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.
|
37.5 |
Electronic communication
|
(a) |
It is recognised that one of the main methods of communication between the Facility Agent and the other Finance Parties will be by posting information and documentation onto an electronic website designated by the Facility Agent.
|
(b) |
Subject to sub-paragraph (a) above, any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means, to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(c) |
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
(d) |
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
(e) |
Each Party confirms that it is aware of (i) the fact that information by way of electronic exchange is transmitted unencrypted over a publicly accessible network, and (ii) the risks connected therewith (including but not limited to the risk that a "bank relation" (as such term is used in the context of Swiss banking secrecy legislation) could be identified).
|
37.6 |
English language
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
38 |
CALCULATIONS AND CERTIFICATES
|
38.1 |
Accounts
|
38.2 |
Certificates and determinations
|
38.3 |
Day count convention
|
38.4 |
Hedging Agreement
|
39 |
PARTIAL INVALIDITY
|
40 |
REMEDIES AND WAIVERS
|
41 |
SETTLEMENT OR DISCHARGE CONDITIONAL
|
42 |
IRREVOCABLE PAYMENT
|
43 |
AMENDMENTS AND WAIVERS
|
43.1 |
Required consents
|
(a) |
Subject to Clause 43.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders (observing the procedure set out in paragraph (e) of Clause 32.1 (Appointment and duties of Kexim Guarantee Agent)) and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b) |
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 43 (Amendments and Waivers).
|
43.2 |
Exceptions
|
(a) |
An amendment or waiver that has the effect of changing or which relates to:
|
(i) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
(ii) |
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
(iii) |
a reduction in the Applicable Margin or the amount of any payment of principal, interest, fees or commission payable;
|
(iv) |
an increase in or extension of any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
(v) |
a change to any Obligor;
|
(vi) |
any provision which expressly requires the consent of all the Lenders;
|
(vii) |
this Clause 43 (Amendments and Waivers);
|
(viii) |
any change to the preamble (Background), Clause 2 (The Facilities ), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8 (Interest), Clause 25 (Security Cover after the Interim Maturity Date), Clause 28 (Changes to the Lenders) or Clause 35.5 (Application of receipts; partial payments);
|
(ix) |
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document, save where the provisions of Clauses 22.17 (Disposals) and 7.5 (Mandatory prepayment on sale or Total Loss) are complied with; or
|
(x) |
the nature or scope of the guarantee and indemnity granted under Clause 17 (Guarantee and Indemnity);
|
(b) |
An amendment or waiver which relates to the rights or obligations of a Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or a Mandated Lead Arranger (each in their capacity as such) may not be effected without the consent of that Servicing Bank, the Kexim Guarantee Agent, a Hedge Counterparty or, as the case may be, the Mandated Lead Arranger.
|
44 |
CONFIDENTIALITY
|
44.1 |
Confidential Information
|
44.2 |
Disclosure of Confidential Information
|
(a) |
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b) |
to any person:
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 30.15 (Relationship with the other Finance Parties));
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(vii) |
to whom or for whose benefit that Finance Party chargers, assigns or otherwise creates Security (or may do so) pursuant to Clause 28.8 (Security over Lenders' rights);
|
(viii) |
who is a Party; or
|
(ix) |
with the consent of a Guarantor;
|
(A) |
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is a professional adviser and is subject
|
(B) |
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c) |
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information by entering into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Finance Party;
|
(d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors.
|
(e) |
Kexim may without the prior consent of any Obligor publish key information concerning the Kexim Guarantee, this Agreement and the transactions contemplated thereby, including but not limited to key information regarding the currency, amount and purpose of the Total Commitments, the Loan and the amount guaranteed by Kexim, the name of the Parties and their country of residence, the name of the Builder, the type of drillship, the date of this Agreement and the issuance of the Kexim Guarantee.
|
(f) |
Without prejudice to the above, the Borrower will procure that each Obligor (and its successors) hereby releases each Finance Party and its Affiliates, and each Finance Party hereby releases the other Finance Parties and their Affiliates from any confidentiality obligations and restrictions based on applicable Swiss bank secrecy rules with regard to any data and information relating to this Agreement, the other Finance Documents and the exercise of the respective rights or fulfilment of the respective obligations of each Finance Party.
|
44.3 |
Entire agreement
|
44.4 |
Inside information
|
44.5 |
Notification of disclosure
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 44.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 44 (Confidentiality).
|
44.6 |
Continuing obligations
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceased to be a Finance Party.
|
45 |
COUNTERPARTS
|
46 |
BAIL-IN
|
46.1 |
Contractual recognition of bail-in
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii) |
a cancellation of any such liability; and
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
47 |
GOVERNING LAW
|
48 |
ENFORCEMENT
|
48.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c) |
This Clause 48.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
48.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
(i) |
irrevocably appoints lnce Process Agents Ltd of 2 Leman St, London El 8QN, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
Name
|
Place of Incorporation
|
Registration number
|
Address for Communication
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
56858
|
Drillship Alonissos Stock Trust,
c/o Willmington Trust Company,
1100 N. Market Street,
Wilmington, DE 19890-1603,
United States
|
Name
|
Place of Incorporation
|
Registration no.
|
Address for Communication
|
Drillship Alonissos Owners Inc. (the Drillship Owner)
|
Marshall Islands
|
56857
|
Drillship Alonissos Stock Trust,
c/o Willmington Trust Company,
1100 N. Market Street,
Wilmington, DE
19890-1603,
United States
|
Name of Lender
|
Commitment
|
Address for Communication
|
THE ORIGINAL COMMERCIAL LENDERS
|
||
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTS 33, Attn. loannis Efstathopoulos
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: loannis Efstathopoulos / George Tzelepis, Ship Finance
E-mail: ioannis.efsathopoulos@credit-suisse.com / george.tzelepis@credit-suisse.com
Tel: +41 61 266 7494 / +41 61 266 7895 Fax: +41 61 266 7939
Administration matters:
SGTS 33, Attn. loannis Efstathopoulos
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: loannis Efstathopoulos,
Ship Finance / Client services
E-mail: ioannis.efsathopoulos@credit-suisse.com
Tel: +41 61 266 7494
Fax: +41 61 266 7939 Rollover, fees and payments:
SGTS 33, Attn. Edina Aganovic
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: Edina Aganovic, Ship Finance
E-mail: edina.aganovic@credit-suisse.com
Tel: +41 61 266 74 90
Fax: +41 61 266 7939 |
DNB Bank ASA
|
USD 65,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjprvika
M-14 S, 0021 Oslo, Norway Attention: Anne-Lise Iversen, Credit Middle
|
Office and Agency
E-mail: anne-lise.iversen@dnb.no Tel: + 47 48014249
Fax: + 47 22482894 |
||
DVB Bank SE (Amsterdam Branch)
|
USD 65,000,000
|
Credit matters:
DVB Bank SE, Ballindamm 6, 20095
Hamburg, Germany
Attention: Jens Taubken, Offshore Finance
E-mail: Jens.Taubken@dvbbank.com
Tel: +49 40 3080 0427
Fax: +49 40 3080 0412
Mobile: +49 174 184 0413
Administration matters:
DVB Bank SE, WTC Schiphol Tower F 6th
Floor, Schiphol Boulevard 255,
1118 BH Schiphol, The Netherlands
Attention: Imogen Hall/Sona Krijger-
Dolbakyan, Transaction and Loan Services
E-mail: TM.amsterdam-hamburg@dvbbank.com
Tel: +44 207 2564 446 / +31 88 399 7927
Fax: +44 207 2564 352 / +31 88 299 8163
Rollover, fees and payments:
DVB Bank SE, Park House,
16-18 Finsbury Circus,
London EC2M 7EB, United Kingdom
Attention: Adam Liley, Transaction and Loan Services
E-mail: tls.london@dvbbank.com
Tel: +44 207 2564 390
Fax: +44 207 2564 352
|
Norddeutsche Landesbank Girozentrale
|
USD 15,000,000
|
Credit matters:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mrs. Corinna Welke,
Shipping & Aircraft Finance Dept.
E-mail: corinna.welke@web.de
Tel: +49 511 361 6848
Fax: +49 511 361 4785
Administration matters:
Friedrichswall 10, 30159 Hannover,
Germany
Attention: Mr. Stefan Schulz,
Shipping & Aircraft Finance Dept.
E-mail: stefan.schulz@nordlb.de
Tel: +49 511 361 5584
Fax: +49 511 361 4785
|
Rollover, fees and payments:
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mr. Andre Schulz,
Shipping & Aircraft Finance Dept.
E-mail: andre.schulz@nordlb.de
Tel: +49 511 361 5334
Fax: +49 511 361 4785
|
||
Total Commercial Facility Loan Commitment: USD 175,000,000
|
||
THE ORIGINAL KEXIM GUARANTEED LENDERS
|
||
DNB Bank ASA
|
USD 95,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjorvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen,
Credit Middle Office and Agency
E-mail: anne-Iise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
SGTE1 Markus Jakobsson
Uetlibergstr. 231
CH-8045 Zurich
Attention: Markus Jakobsson,
Export Finance
E-mail: markus.jakobsson@creditsuisse.com
Tel: +41 44 333 53 56 /+41 44 333 53 38
Fax: +41 44 333 21 04
Mobile: +41 79 576 1648
Administration matters:
WGCE5 Attn. Simon Svedhage
Uetlibergstr. 231
CH-8045 Zurich
Attention: Simon Svedhage,
Export Finance, Portfolio Administration
E-mail: portfolio.admin@creditsuisse.com
Tel: + 41 44 333 85 36
Fax: +41 44 333 21 04
Rollover, fees and payments:
WGCE6 Azemina Arzic
Uetlibergstr. 231
CH-8045 Zurich
Attention: Azemina Arzic,
Export Finance, Client Services
|
E-mail: cp-exfi.cso@credit-suisse.com
Tel: +41 44 333 63 93
Fax: +41 44 333 79 80
|
||
Total Kexim Guaranteed Facility Loan Commitment: USD 125,000,000
|
||
KEXIM
|
||
The Export−Import Bank of Korea
|
USD 175,000,000
|
BIFC 20th floor, Munhyeongeumyung-ro 40,
Nam-gu, Busan 608-828,
Korea
Attention: Mr. Seungheon Baek / Ms. Mibo Ahn,
Maritime Project Finance Department
E-mail: shbaek@koreaexim.go.kr / miboahn@koreaexim.go.kr
Tel: +82-51-922-8838 / +82-51-922-8837
Fax: +82-51-922-8849
Mobile: +82-10-8842-3462 / +82-10-8872-2889
|
Total Kexim Direct Facility Loan Commitment: USD 175,000,000
|
Facility Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjørvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
Security Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P 0 Box 1600 Sentrum Bjørvika
M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit
Middle Office and Agency
E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249
Fax: + 47 22482894
|
1 |
Obligors
|
1.1 |
Articles of incorporation and Certificate of incorporation (or similar).
|
1.2 |
By-laws (or similar) (if applicable).
|
1.3 |
Updated Good Standing Certificate.
|
1.4 |
A copy of a resolution of the board of directors and shareholders (if applicable) of each Obligor:
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, the Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.5 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party (notarised and apostilled if requested by the Facility Agent).
|
1.6 |
Passport photocopies for all Directors certified by the legal advisor of the Borrower.
|
1.7 |
A Directors/Secretary's Certificate, certifying and attaching the constitutional documents and authorisations referred to in paragraph 1.1 — 1.5 above and
|
(a) |
certifying that each copy document is correct, complete and in full force and effect as at a the date of this Agreement;
|
(b) |
certifying the identity of its directors, officers and shareholder(s); and
|
(c) |
confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
|
1.8 |
A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies.
|
2 |
Finance Documents
|
2.1 |
This Agreement duly executed.
|
2.2 |
The Fee Letters duly executed.
|
2.3 |
The Hedging Agreements, if applicable.
|
2.4 |
The Assignment of Hedging Agreements, if applicable.
|
2.5 |
The Assignment of Intra-Group Loans, if applicable.
|
2.6 |
The Account Security duly executed, together with notices to and acknowledgements from the Account Bank.
|
2.7 |
The Shares Security duly executed, together with (if applicable) original share certificates, stock powers, undated directors' letters of resignation and irrevocable proxies or such other deliverables as required by the legal advisers to the Finance Parties.
|
3 |
Building Contract
|
3.1 |
Copies of the Building Contract and of all documents signed or issued by the Drillship Owner or the Builder (or both of them) under or in connection with such agreement.
|
3.2 |
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution by the Drillship Owner of the Building Contract and of all documents to be executed by such party.
|
4 |
Total Drilling Contract
|
4.1 |
A copy of the Total Drilling Contract and of all documents signed or issued under or in connection with it.
|
4.2 |
A certificate of an authorised signatory of the Borrower that the Total Drilling Contract is in full force and existence and that there has been no amendments to it.
|
4.3 |
A summary of the Total Drilling Contract prepared by legal advisors to the Finance Parties.
|
4.4 |
Board resolutions and powers of attorneys evidencing the due authorisation and execution by the Drillship Owner of all documents to be executed by it under or in connection with the Total Drilling Contract.
|
5 |
Other documents and evidence
|
5.1 |
Evidence that any process agent referred to in Clause 48.2 (Service of process), if not an Obligor, has accepted its appointment.
|
5.2 |
If relevant, confirmation that any withholding tax will be paid or application to tax authorities is or will be sent.
|
5.3 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or any related document or for the validity and enforceability of any Finance Document and/or related document.
|
5.4 |
The Original Financial Statements and a Compliance Certificate.
|
5.5 |
To the extent applicable, such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by the Finance Documents, including without limitation a written statement of each Obligor listing the natural persons
|
5.6 |
Evidence that any fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid.
|
6 |
Kexim documents
|
6.1 |
A duly executed original of the Kexim Guarantee on terms satisfactory to the Kexim Guarantee Agent and all the Kexim Guaranteed Lenders.
|
6.2 |
Evidence that the first advance payment of the Kexim Guarantee Premium in relation to the Kexim Guarantee and any costs and expenses which are then due and payable to Kexim has been paid in accordance with the terms of the Kexim Guarantee.
|
6.3 |
A legal opinion of Kim & Chang, Korean legal advisers to the Kexim Guaranteed Lenders, in such form as agreed between that legal adviser and the Kexim Guaranteed Lenders.
|
7 |
Legal opinions
|
7.1 |
A legal opinion of Wikborg Rein, legal advisers to the Finance Parties in Norway, in such form as agreed between that legal adviser and the Finance Parties.
|
7.2 |
The legal opinions to be delivered under paragraph 4 of Part B of this Schedule 2 (Conditions Precedent) being in agreed form.
|
7.3 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
|
1 |
Obligors
|
1.1 |
If required, updated Good Standing Certificate for the Obligors.
|
2 |
Finance Documents
|
2.1 |
The Mortgage duly executed, together with documentary evidence that the Mortgage has been duly registered as a valid first preferred ship mortgage in accordance with the laws of the jurisdiction of the Approved Flag.
|
2.2 |
The General Assignment duly executed and perfected.
|
2.3 |
The Assignment of Total Drilling Contract duly and perfected.
|
2.4 |
The Manager's Undertaking.
|
3 |
Drillship
|
3.1 |
Documentary evidence that the Drillship:
|
(a) |
has been unconditionally delivered by the Builder to, and accepted by, the Drillship Owner under the Building Contract, including but not limited to a copy of the protocol of delivery and acceptance for the Drillship with no material recommendations or adverse notations, and that the full purchase price payable (including the equity payable) and all other sums due to the Builder under the Building Contract, other than the sums to be financed pursuant to the Utilisation have been paid to the Builder;
|
(b) |
is definitively and permanently registered in the name of the Drillship Owner under the Approved Flag;
|
(c) |
is in the absolute and unencumbered ownership of the Drillship Owner save as contemplated by the Finance Documents;
|
(d) |
maintains the Approved Classification with the Approved Classification Society; and
|
(e) |
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
3.2 |
Documents establishing that the Drillship will, as from the Utilisation Date, be managed by the Manager, together with copies of the Manager's Document of Compliance and of the Drillship's Safety Management Certificate (together with any other details of the applicable safety management system which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Drillship including without limitation an ISSC.
|
3.3 |
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
|
3.4 |
Evidence of the Market Value of the Drillship (based on valuations obtained no earlier than 30 days prior to the Delivery Date), confirming that the Loan is no more than 70 per cent, of the Market Value of the Drillship.
|
4 |
Legal opinions
|
4.1 |
A legal opinion of Watson Farley & Williams, London, legal advisers to the Finance Parties in England, in such form as agreed between that legal adviser and the Finance Parties.
|
4.2 |
A legal opinion of Watson Farley & Williams LLP, legal advisers to the Finance Parties in the Marshall Islands, in such form as agreed between that legal adviser and the Finance Parties.
|
4.3 |
A legal opinion of Watson Farley & Williams, Paris, legal advisers to the Finance Parties in France, in such form as agreed between that legal adviser and the Finance Parties.
|
4.4 |
A legal opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
|
From:
|
Drillship Alonissos Shareholders Inc.
|
|
To:
|
DNB Bank ASA (the Facility Agent)
|
|
Dated:
|
[•]
|
1 |
We refer to the Agreement. This is the Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2 |
We wish to utilise the Commercial Facility Loan, Kexim Direct Facility Loan and Kexim Guaranteed Facility Loan:
|
Proposed Utilisation Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
|
Amount (divided pro rata across the Facilities):
|
[•] or, if less, the Available Facility
|
|
Interest Period:
|
[•]
|
3 |
We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent) as they relate to the Advance to which this Utilisation Request refers of the Agreement is satisfied on the date of this Utilisation Request.
|
4 |
The proceeds of this Advance should be credited to [account].
|
5 |
This Utilisation Request is irrevocable.
|
From:
|
Drillship Alonissos Shareholders Inc.
|
|
To:
|
DNB Bank ASA (the Facility Agent)
|
|
Dated:
|
[•]
|
1 |
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2 |
We request that the next Interest Period for the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] be [•].
|
3 |
This Selection Notice is irrevocable.
|
To: |
DNB Bank ASA (the Facility Agent)
|
From: |
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
Dated: |
[•]
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2 |
We refer to Clause 28.5 (Procedure for transfer) of the Agreement:
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 28.5 (Procedure for transfer) of the Agreement, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
|
(b) |
The proposed Transfer Date is [•].
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 37.2 (Addresses) of the Agreement are set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of Existing Lenders) of the Agreement.
|
4 |
To the extent that this Transfer Certificate constitutes a novation under English law, then for the purpose of the Assignment of Total Drilling Contract governed by French law:
|
(a) |
the novation created by this Transfer Certificate constitutes a novation as described by article 1271 of the French Civil Code (Code Civil); and
|
(b) |
all security interests constituted under the Assignment of Total Drilling Contract creating security in rem (sOretes reviles) and securing the rights and obligations hereby transferred from the Existing Lender to the New Lender shall be reserved, in accordance with article 1278 of the French civil code (Code civil), to the benefit of such New Lender and shall remain in full force and effect.
|
5 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6 |
Subject to paragraph 4 above, this Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
7 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
[New Lender]
|
By:[•]
|
By:[•]
|
To: |
DNB Bank ASA (the Facility Agent) and Driliship Alonissos Shareholders Inc. as Borrower, for and on behalf of each Obligor
|
From: |
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
|
Dated: |
[•]
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2 |
We refer to Clause 28.6 (Procedure for assignment):
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
3 |
The proposed Transfer Date Is [•].
|
4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 37.2 (Addresses) are set out in the Schedule.
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of Existing Lenders).
|
7 |
This Asignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 28.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), to the Borrower (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.
|
8 |
To the extent that this Assignment Agreement constitutes an assignment of rights and obligations under English law, then for the purpose the Assignment of Total Drilling Contract, the assignment created by this Assignment Agreement constitutes an assignment as described by article 1689 and seq. of the French Civil Code (Code civil). All security interests constituted under the Assignment of Total Drilling Contract will be perfectly assigned to the New Lender upon receipt by the Borrower of this Assignment Agreement. For the purpose of the Assignment of Total Drilling Contract, this paragraph 8 shall be governed by French law.
|
9 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
10 |
Subject to paragraph 8 above, this Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
11 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
To: |
DNB Bank ASA (the Facility Agent)
|
From: |
Drillship Alonissos Shareholders Inc. (as Borrower)
|
Dated: |
[•] [To be delivered no later than 120/ 60 days after each reporting date]
|
1 |
Minimum credit balance on Retention Account, Clause 20.2
|
2 |
[Borrower's Minimum Cash and Cash Equivalents, Clause 21.2
|
3 |
Borrower's Equity Ratio, Clause 21.3
|
4 |
Borrower's Current Ratio, Clause 21.4
|
5 |
Borrower's Debt Service Cover Ratio, Clause 21.5
|
6 |
The ratio of the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments was [ ], while the Borrower's EBITDA to the aggregate of the Borrower's consolidated interest expenses and Repayment Instalments shall not be less than 1.25:1.]
|
7 |
No Default
|
By:
|
||||
Name:
|
||||
Title:
|
[authorised officer]
|
By:
|
||||
Name:
|
||||
Title:
|
[authorised officer]
|
To: |
DNB Bank ASA (the Facility Agent)
|
From: |
Drillship Alonissos Shareholders Inc.
[•] as Additional Guarantor |
Dated: |
[•]
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1 |
[•], a company duly incorporated under the laws of [•], agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 22.11 (New Guarantors) of the Agreement and provide such Security as required thereunder.
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2 |
This Accession Letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accession Letter.
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3 |
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
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From:
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Drillship Alonissos Shareholders Inc.
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To:
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DNB Bank ASA (the Facility Agent)
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Dated:
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[•]
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1 |
We refer to the Agreement. This is a [Prepayment][Cancellation] Notice. Terms defined in the Agreement have the same meaning in this [Prepayment][Cancellation] Notice unless given a different meaning in this [Prepayment][Cancellation] Notice.
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2 |
[We wish to [prepay the whole Loan] [make a prepayment under the [Loan] [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan]]:
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Proposed Prepayment Date:
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[•] (or, if that is not a Business Day, the next Business Day)
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Amount:
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[•]
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3 |
[We wish to cancel [the Total Commitments] [unutilised amounts available under the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] in an amount of [•] (in relation to any voluntary cancellation being an amount of minimum USD 10,000,000)].
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4 |
This [Prepayment][Cancellation] Notice is irrevocable.
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Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of the Utilisation Request))
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Three Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of the Utilisation Request)) or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
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Delivery of a duly completed Selection Notice (Clause 9.1 (Selection of Interest Periods))
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Three Business Days before the expiry of the preceding Interest Period (Clause 9.1 (Selection of Interest Periods))
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Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation)
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Three Business Days before the intended Utilisation Date or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
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LIBOR is fixed
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Quotation Day as of 11:00 am London time
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BORROWER
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DRILLSHIP ALONISSOS SHAREHOLDERS INC.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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GUARANTOR and DRILLSHIP OWNER
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DRILLSHIP ALONISSOS OWNERS INC.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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COMMERCIAL LENDERS
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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CREDIT SUISSE AG
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DVB BANK SE (AMSTERDAM BRANCH)
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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NORDDEUTSCHE LANDESBANK GIROZENTRALE
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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KEXIM GUARANTEED LENDERS
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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CREDIT SUISSE AG
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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KEXIM
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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THE EXPORT-IMPORT BANK OF KOREA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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MANDATED LEAD ARRANGERS
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DND BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DVB BANK SE (AMSTERDAM BRANCH)
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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HEDGE COUNTERPARTIES
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK SE (AMSTERDAM BRANCH)
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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KEXIM GUARANTEE AGENT
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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FACILITY AGENT
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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SECURITY AGENT
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SIGNED by
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)
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duly authorised
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)
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for and on behalf of
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)
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DNB BANK ASA
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witnesss' name:
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)
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Witness' address:
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)
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Clause
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Page
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1
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Definitions and Interpretation
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1
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2
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Covenant to Pay and Covenant to Perform
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3
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3
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Creation of Security
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4
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4
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Dealings with Shares
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7
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5
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Representations
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8
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6
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Protection of Security
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8
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7
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Enforceability and Security Agent's Powers
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9
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8
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Receiver
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12
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9
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Protection of Third Parties
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13
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10
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Application of Moneys
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13
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11
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Further Assurance
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14
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12
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Power of Attorney
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14
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13
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Incorporation of Facilities Agreement Provisions
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15
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14
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Indemnities
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15
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15
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Limitation of Liability Of Shareholder
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16
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16
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Costs and Expenses
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16
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17
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Supplemental
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17
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18
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Transfer by Security Agent
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17
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19
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Governing Law
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17
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20
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Enforcement
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17
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Schedule 1 Instrument of Transfer
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19
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Schedule 2 Irrevocable Proxy and Power of Attorney
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20
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Schedule 3 Letter of Resignation
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21
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Schedule 4 Letter of Authorisation
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22
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Schedule 5 Copy Share Certificate
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23
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Execution Page
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24
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(1) |
DRILLSHIP ALONISSOS STOCK TRUST, a Delaware statutory trust (together with its successors and permitted assigns, the "Shareholder")
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(2) |
DNB BANK ASA, acting through its office at Dronning Eufemias gate 30, 0191 Oslo, Norway (the "Security Agent")
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(A) |
By the Facilities Agreement, the Lenders agreed to make available to the Company facilities of up to USD 475,000,000.
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(B) |
By the Facilities Agreement it was agreed that the Security Agent would hold the Security Property on trust for the Secured Parties.
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(C) |
It is a condition precedent to the continued availability of the Facilities under the Facilities Agreement that the Shareholder enters into this Deed as security for the Secured Liabilities.
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(D) |
The Company is authorised to issue 500 registered shares with a par value of US$20 per share of which 500 shares have been issued and are outstanding in registered f1orm in the ownership of the Shareholder.
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(E) |
This Deed is the Shares Security relating to the Company referred to in the Facilities Agreement.
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1 |
DEFINITIONS AND INTERPRETATION
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1.1 |
Definitions
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(i) |
the Original Shares; and
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(ii) |
all other shares in the Company from time to time owned by the Shareholder during the Security Period (and includes all stocks, shares and other securities issued or accruing at any time by way of redemption, bonus, rights, preference or otherwise to the Shareholder in respect of all or any of the Shares or offered in substitution or exchange for all or any of the Shares).
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1.2 |
Defined expressions
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1.3 |
Application of construction and interpretation provisions of Facilities Agreement
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1.4 |
Inconsistency between Facilities Agreement provisions and this Deed
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1.5 |
Third party rights
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2 |
COVENANT TO PAY AND COVENANT TO PERFORM
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2.1 |
Covenant to pay
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2.2 |
Covenant to perform
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(a) |
observe and perform all its obligations under the Finance Documents, other than those referred to in Clause 2.1 (Covenant to pay), to the Security Agent and the other Secured Parties or any of them under the Finance Documents; and
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(b) |
procure the observance and performance by the Company of its obligations under the Finance Documents.
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2.3 |
Covenant to pay expenses etc
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2.4 |
Covenant to pay default interest
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(a) |
at the rate described in clause 8.3 (default interest) of the Facilities Agreement;
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(b) |
compounded in accordance with clause 8.3 (default interest) of the Facilities Agreement; and
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(c) |
on demand in accordance with clause 8.3 (default interest) of the Facilities Agreement.
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3 |
CREATION OF SECURITY
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3.1 |
Security
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(a) |
mortgages, pledges, charges and otherwise creates a Security in, and agrees to mortgage, pledge, charge and otherwise create a Security in, the Shares in favour of the Security Agent; and
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(b) |
assigns to the Security Agent absolutely all rights and interests of every kind which now or at any later time it has to, in or in connection with the Derivative Assets,
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3.2 |
Security documentation
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(a) |
As security for its obligations and liabilities under this Deed:
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(i) |
the Shareholder has delivered, or procured there to be delivered to the Security Agent:
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(A) |
all share certificates in respect of the Original Shares (unless such share certificates are held by third parties acceptable to the Security Agent and who have undertaken directly with the Security Agent to hold the same to the order of the Security Agent);
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(B) |
(if such Original Shares are in registered form) Instruments of Transfer in respect of the Original Shares;
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(C) |
an Irrevocable Proxy and Power of Attorney in respect of the Original Shares;
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(D) |
a Letter of Resignation from each of the Directors and Officers of the Company;
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(E) |
a Letter of Authorisation from each of the Directors and Officers of the Company;
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(ii) |
the Shareholder will deliver, or procure there to be delivered, to the Security Agent immediately upon (subject to 3.3 (Shares)) the issue of any further Shares to it:
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(A) |
all share certificates in respect of those further Shares;
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(B) |
(if those further Shares are in registered form) Instruments of Transfer in respect of those further Shares; and
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(C) |
an Irrevocable Proxy and Power of Attorney in respect of those further Shares; and
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(iii) |
without prejudice to Clause 3.3 (Shares), the Shareholder will deliver, or procure there to be delivered, to the Security Agent immediately upon the appointment of any other director, officer or secretary of the Company, a Letter of Resignation and a Letter of Authorisation from that director, officer or secretary.
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3.3 |
Shares
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(a) |
The Shareholder will procure that the Company shall not:
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(i) |
purchase, cancel or redeem any of its shares;
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(ii) |
issue any further shares (except to the Shareholder and provided such shares are made subject to the terms of this Deed immediately upon the issue thereof in a manner satisfactory to the Security Agent and the terms of paragraph (a) (ii) of Clause 3.2 (Security documentation) are complied with);
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(iii) |
appoint any further director, officer or secretary of the Company (unless the provisions of paragraph (a) (iii) of Clause 3.2 (Security documentation) are complied with),
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3.4 |
Continuing and additional security
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(a) |
The Security created by Clause 3.1 (Security) and Clause 3.2 (Security documentation) is fixed; and this Deed shall remain in force until the end of the Security Period as a continuing security and, in particular:
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(i) |
the Security created by Clause 3.1 (Security) and Clause 3.2 (Security documentation) will extend to the ultimate balance of all sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part;
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(ii) |
the Security created by Clause 3.1 (Security) and Clause 3.2 (Security documentation), and the rights of the Security Agent under this Deed, are only capable of being extinguished, limited or otherwise adversely affected by an express and specific term in a document signed by or on behalf of the Security Agent;
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(iii) |
no failure or delay by or on behalf of the Security Agent to enforce or exercise a Security created by Clause 3.1 (Security) and Clause 3.2 (Security documentation) or a right of the Security Agent under this Deed, and no act, course of conduct, acquiescence or failure to act (or to prevent the Shareholder from taking certain action) which is inconsistent with such a Security or such a right or with such a Security being a fixed security shall preclude or estop the Security Agent (either permanently or temporarily) from enforcing or exercising it or result in a Security expressed to be a fixed security taking effect as a floating security.
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(b) |
This Deed is in addition to and is not in any way prejudiced by, and shall not prejudice any other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or rights to combine accounts in connection with the Finance Documents.
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3.5 |
Waiver of defences
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(a) |
The obligations of the Shareholder under this Deed and the Security created by this Deed will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 3.5 (Waiver of defences), would reduce, release or prejudice any of its obligations under this Deed or the Security created or intended to be created by this Deed (without limitation and whether or not known to it or any Secured Party) including:
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(i) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
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(ii) |
the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
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(iii) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
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(iv) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
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(v) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
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(vi) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
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(vii) |
any insolvency or similar proceedings.
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3.6 |
Deferral of Shareholder's rights
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(a) |
All rights which the Shareholder at any time has (whether in respect of this Deed or any other transaction) against the Company, any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents and until the end of the Security Period and unless the Facility Agent otherwise directs, the Shareholder will not exercise any rights which it may have (whether in respect of any Finance Document to which it is a party or any other transaction) by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Deed:
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(i) |
to be indemnified by an Obligor;
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(ii) |
to claim any contribution from any third party providing security for, or any guarantor of, any Obligor's obligations under the Finance Documents;
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(iii) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party;
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(iv) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Shareholder has given a guarantee, undertaking or indemnity under or in connection with this Deed;
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(v) |
to exercise any right of set-off against any Obligor; and/or
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(vi) |
to claim or prove as a creditor of any Obligor in competition with any Secured Party.
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(b) |
If the Shareholder receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Security Agent or as the Security
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3.7 |
No obligations imposed on Security Agent
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3.8 |
Negative pledge
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(a) |
The Shareholder shall not create or permit to subsist any Security over the Security Assets.
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(b) |
Paragraph (a) above does not apply to any Permitted Security.
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(c) |
This Clause 3.8 (Negative pledge) is in addition to, and shall not be limited by, any provision of the Facilities Agreement.
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3.9 |
Disposals
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3.10 |
Release of Security
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4 |
DEALINGS WITH SHARES
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4.1 |
Exercise of voting rights etc
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(a) |
Unless and until an Event of Default has occurred (and notwithstanding any registration of Security Assets in the name of the Security Agent (or its nominee) pursuant to Clause 4.3 (Registration of Security Assets in name of Security Agent)):
|
(i) |
the Shareholder (or its nominee) shall be entitled to exercise, or (as the case may be) direct the exercise of, all voting and/or consensual powers pertaining to the Security Assets or any part of them for all purposes not prejudicial to the Security created by this Deed nor otherwise inconsistent with the terms of this Deed and the other Finance Documents; for the avoidance of doubt, the Shareholder shall not (without the prior written consent of the Security Agent) be entitled to exercise any such powers to effect any amendment or revocation of the Company's constitutional documents;
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(ii) |
the Security Agent shall not exercise any of the powers of enforcement referred to in Clause 7.1 (Right to enforce Security) and shall not complete, put into effect or utilise any of the items delivered to the Security Agent pursuant to Clause 3.2 (Security documentation); and
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(iii) |
subject to Clause 4.2 (No obligation on Security Agent in relation to Derivative Assets) and Clause 7.6 (No liability of Security Agent), the Shareholder shall be entitled to receive (directly or, as the case may be, through payment over by the Security Agent or its nominee) and retain any Derivative Assets accruing on or in
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4.2 |
No obligation on Security Agent in relation to Derivative Assets
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4.3 |
Registration of Security Assets in name of Security Agent
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4.4 |
Payment of calls and discharge of other obligations by Shareholder
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5 |
REPRESENTATIONS
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5.1 |
General
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5.2 |
Representations
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5.3 |
Contents of Finance Documents
|
5.4 |
Repetition
|
6 |
PROTECTION OF SECURITY
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6.1 |
Security Agent's right to protect or maintain security
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6.2 |
Payment of calls, etc
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6.3 |
New accounts
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(a) |
a Secured Party receiving notice (either actual or otherwise) of any subsequent Security affecting the Secured Assets or the proceeds of sale of the Secured Assets; or
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(b) |
the presentation of a petition or the passing of a resolution in relation to the winding up of the Shareholder,
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7 |
ENFORCEABILITY AND SECURITY AGENT'S POWERS
|
7.1 |
Right to enforce Security
|
(a) |
the Security constituted by this Deed shall immediately become enforceable;
|
(b) |
the Security Agent shall be entitled then or at any later time or times to exercise the powers set out in Clause 7.2 (Right to take possession, exercise rights etc) and in any other Finance Document; and
|
(c) |
the Security Agent shall be entitled then or at any later time or times:
|
(i) |
to exercise the powers possessed by it as holder of security in respect of the Security Assets conferred by the law of any country or territory in which the Security Assets are physically present or deemed to be sited and the courts of which have or claim any jurisdiction in respect of the Shareholder or any item of the Security Assets; and
|
(ii) |
without limiting the scope of the Security Agent's powers under sub-paragraph (i) above, to exercise the powers possessed by it as a creditor or as a person with a Security in the Security Assets conferred by English Law.
|
7.2 |
Right to take possession, exercise rights etc
|
(a) |
to exercise the power of sale and other powers conferred by Section 101 of the Law of Property Act, 1925 as varied or amended by this Deed;
|
(b) |
to exercise solely and exclusively all voting and/or consensual powers pertaining to the Shares or any of them and to exercise such powers in such manner as the Security Agent may think fit;
|
(c) |
in connection with, or in order to facilitate, a sale of the Shares, to remove the then existing Directors and Officers (with or without cause) by presenting the Letters of Resignation delivered pursuant to this Deed or otherwise and appoint replacements;
|
(d) |
to receive and retain all Derivative Assets accruing on or in respect of the Shares or any of them, such Derivative Assets to be held by the Security Agent, until applied in the manner described in Clause 10 (Application of Moneys), as additional security pledged under and subject to the terms of this Deed, and any such Derivative Assets received by the Shareholder after such time shall be held in trust by the Shareholder for the Security Agent and paid or transferred to the Security Agent on demand;
|
(e) |
to sell the Shares or any part thereof at such place and in such manner and at such price or prices as the Security Agent may deem fit, and upon any such sale the Security Agent shall have the right to deliver, assign and transfer to each purchaser thereof the Shares so sold;
|
(f) |
to collect, recover and give good discharge for any moneys or claims forming part of, or arising in relation to, any Security Assets and to permit any brokers through whom collection or recovery is effected to charge the usual brokerage therefor;
|
(g) |
to take over or commence or defend (if necessary using the name of the Shareholder) any claims or proceedings relating to, or affecting, any Security Assets which the Security Agent may think fit and to abandon, release or settle in any way such claims or proceedings; and
|
(h) |
generally, to enter into any transaction or arrangement of any kind and to do anything in relation to any Security Assets which the Security Agent may think fit.
|
7.3 |
Right to appoint Receiver
|
7.4 |
Financial Collateral Arrangement
|
(a) |
It is intended that this Deed shall take effect as a Financial Collateral Arrangement as defined in Part 1 Clause 3 of the Financial Collateral Arrangements (No. 2) Regulations 2003 2003 (SI 2003 No. 3226) as amended (the "Regulations").
|
(b) |
To the extent that the Security Assets constitute "financial collateral" and this Deed and the obligations of the Shareholder under this Deed constitute a "security financial collateral arrangement" (in each case for the purpose of and as defined in the Regulations), the Security Agent shall have the right at any time after the Security constituted by this Deed has become enforceable, to appropriate all or any part of such financial collateral in or towards the satisfaction of the Secured Liabilities. For this purpose, the Parties agree that the value of the Shares so appropriated shall be their market price determined by the Security Agent by reference to a public index or by such other process as the Security Agent may select,
|
7.5 |
Law of Property Act 1925 not applicable
|
(a) |
waives the entitlement conferred by section 93 of the Law of Property Act 1925; and
|
(b) |
agrees that section 103 of that Act shall not apply to the Security created by this Deed.
|
7.6 |
No liability of Security Agent
|
(a) |
Neither the Security Agent nor any Delegate shall be obliged to:
|
(i) |
check the nature or sufficiency of any payment received by it or him under this Deed; or
|
(ii) |
preserve, exercise or enforce any right forming part of, or relating to, any Security Assets.
|
(b) |
In addition to, and without limiting, any exclusion or limitation of liability of any Secured Party under any Finance Document, neither the Security Agent nor any Delegate shall have any liability to any Obligor:
|
(i) |
for any loss caused by an exercise of, or failure to exercise, rights under or enforcement of, or failure to enforce any Security created by this Deed;
|
(ii) |
as mortgagee in possession or otherwise, to account for any income or principal amount which might have been produced or realised from any asset forming part of or subject to any Security created by this Deed; or
|
(iii) |
as mortgagee in possession or otherwise, for any reduction in the value of any asset forming part of or subject to any Security created by this Deed.
|
7.7 |
No requirement to commence proceedings
|
7.8 |
Conclusive evidence of certain matters
|
(a) |
any judgment or order of a court in England, Greece or Marshall Islands in connection with the Facilities Agreement;
|
(b) |
any statement or admission of the Company or any other Obligor in connection with the Facilities Agreement,
|
7.9 |
Prior Security
|
(a) |
At any time after the Security created by this Deed has become enforceable, the Security Agent may:
|
(i) |
redeem any prior Security over all or any part of the Secured Assets;
|
(ii) |
procure the transfer of that Security to itself; and/or
|
(iii) |
settle the accounts of any prior mortgagee, chargee or encumbrancer and any accounts so settled will be, in the absence of manifest error, conclusive and binding on the Shareholder.
|
(b) |
The Shareholder shall pay to the Security Agent immediately upon demand the costs and expenses incurred by the Security Agent in connection with any such redemption, settlement and/or transfer including the payment of any principal or interest.
|
7.10 |
No proceedings
|
8 |
RECEIVER
|
8.1 |
Appointment of Receiver
|
(a) |
An appointment of a Receiver shall be by deed or, at the Security Agent's option, by a document signed by any of its officers.
|
(b) |
An appointment in respect of some only of the Secured Assets may later be extended to all or any part of the remaining Secured Assets.
|
8.2 |
Relationship with Security Agent
|
(a) |
The Security Agent may exercise any of the powers conferred by this Deed while a Receiver is in office and is acting.
|
(b) |
To the fullest extent permitted by law, a Receiver shall be the Shareholder's agent, and the Shareholder shall be responsible, to the exclusion of any liability on the part of the Security Agent and the other Secured Parties, for his remuneration and for his contracts, acts and defaults.
|
8.3 |
Powers of Receiver
|
(a) |
A Receiver shall have all the powers conferred by Clause 7.2 (Right to take possession, exercise rights etc) as if references to the Security Agent in Clause 7.2 (Right to take possession, exercise rights etc) were references to the Receiver, and all the powers conferred on a Receiver by the Law of Property Act 1925.
|
(b) |
In the case of joint Receivers, any of the powers (including the discretions) conferred by this Deed or by the general law (including the Insolvency Act 1986) may be exercised by any one or more of them, unless their appointment specifically states the contrary.
|
8.4 |
Receiver as Shareholder's attorney
|
8.5 |
Delegation
|
8.6 |
Removal and replacement
|
(a) |
The Security Agent may remove a Receiver, with or without appointing another Receiver; such a removal may be effected by a document signed by any of the Security Agent's officers.
|
(b) |
The Security Agent may appoint a Receiver to replace a Receiver who has resigned or for any other reason ceased to hold office.
|
8.7 |
Remuneration and expenses
|
(a) |
The remuneration of a Receiver shall be fixed by the Security Agent and the maximum rate specified in Section 109(6) of the Law of Property Act 1925 will not apply.
|
(b) |
A Receiver shall be entitled to retain out of any money received by him such amounts in respect of his expenses (or to cover estimated future expenses) as he may from time to time agree with the Security Agent.
|
9 |
PROTECTION OF THIRD PARTIES
|
(a) |
whether the rights conferred by or pursuant to any Finance Document are exercisable or have been properly exercised;
|
(b) |
whether any Secured Liabilities remain owing;
|
(c) |
whether any laws, directions, restrictions, consents and/or, regulations affecting the rights of the Security Agent or any Secured Party have been obtained or complied with; or
|
(d) |
as to the application of any monies received by the Security Agent.
|
10 |
APPLICATION OF MONEYS
|
10.1 |
General
|
(a) |
All sums received by the Security Agent under this Deed shall be held by the Security Agent upon trust:
|
(i) |
first to pay or discharge any expenses or liabilities (including any interest) which have been paid or incurred by the Security Agent in or in connection with the exercise of its powers; and
|
(ii) |
second to pay the balance over to the Facility Agent for application in accordance with clause 34.5 (application of receipts; partial payments) of the Facilities Agreement.
|
11 |
FURTHER ASSURANCE
|
12 |
POWER OF ATTORNEY
|
12.1 |
Appointment
|
(a) |
to do all acts and execute or sign all documents which the Shareholder itself can do and execute in relation to the Security Assets, including, without limitation, all acts and documents necessary to realise and dispose of the Security Assets (including a sale of the Shares) by such means and on such terms as the Security Agent may determine; and
|
(b) |
to do all acts and things and execute or sign all documents which the Shareholder is obliged to do, execute or sign under this Deed and which it has failed so to do, execute or sign immediately upon the Security Agent's first written demand,
|
12.2 |
General power of attorney
|
12.3 |
Ratification of actions of attorney
|
12.4 |
Conclusiveness of exercise
|
12.5 |
Delegation
|
12.6 |
Duration
|
13 |
INCORPORATION OF FACILITIES AGREEMENT PROVISIONS
|
13.1 |
Incorporation of specific provisions
|
13.2 |
Incorporation of general provisions
|
14 |
INDEMNITIES
|
14.1 |
Indemnity to the Security Agent
|
(a) |
In addition to, and without limiting, any indemnity in favour of any Secured Party under any Finance Document, the Shareholder shall promptly indemnify the Security Agent and any Delegate against any cost, loss or liability incurred by any Secured Party:
|
(i) |
in relation to or as a result of:
|
(A) |
the taking, holding, protection or enforcement of this Deed and the Security created, or intended to be created, by this Deed;
|
(B) |
the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and any Delegate by this Deed or by law;
|
(C) |
any default by the Shareholder in the performance of any of the obligations expressed to be assumed by it in this Deed;
|
(D) |
any action by the Shareholder which vitiates, reduces the value of, or is otherwise prejudicial to, the Security created or intended to be created by this Deed,
|
(ii) |
which otherwise relates to any of the Security Assets or the performance of the terms of this Deed (otherwise than as a result of the Security Agent's or any Delegate's gross negligence or wilful misconduct).
|
(b) |
The Security Agent and any Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.1 (Indemnity to the Security Agent) and shall have a lien on the Security Assets and the proceeds of the enforcement of the Security Assets for all moneys payable to it.
|
15 |
LIMITATION OF LIABILITY OF SHAREHOLDER
|
(a) |
this Deed is executed and delivered by the Shareholder not by the Trustee in its individual capacity but solely as trustee under the Trust Agreement for and on behalf of the Trust in the exercise of the power and authority conferred and vested in it as trustee;
|
(b) |
each of the representations, undertakings and agreements made herein by the Shareholder are not personal representations, undertakings and agreements of the Trustee, but are binding only on the trust estate and the Trust and the liability of the Shareholder shall be limited to the assets of the trust estate and the Trust;
|
(c) |
nothing therein contained shall be construed as creating any liability of the Trustee, or any incorporator or any past, present or future subscriber to the capital stock of, or stockholder, officer or director of, the Shareholder, all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under them;
|
16 |
COSTS AND EXPENSES
|
16.1 |
Transaction expenses
|
(a) |
this Deed and any other documents referred to in this Deed; and
|
(b) |
any other Finance Documents executed after the date of this Deed.
|
16.2 |
Amendment costs
|
(a) |
the Shareholder requests an amendment, waiver or consent; or
|
(b) |
an amendment is required pursuant to clause 35.9 (change of currency) of the Facilities Agreement; or
|
(c) |
the Shareholder requests and the Security Agent agrees to, the release of any part of the Security Assets from the Security created by this Deed,
|
16.3 |
Enforcement and preservation costs
|
17 |
SUPPLEMENTAL
|
17.1 |
No restriction on other rights
|
(a) |
any other Finance Document; or
|
(b) |
the law of any country or territory the courts of which have or claim any jurisdiction in respect of the Shareholder or any item of the Security Assets.
|
17.2 |
Exercise of other rights
|
17.3 |
Settlement or discharge conditional
|
18 |
TRANSFER BY SECURITY AGENT
|
(a) |
assign any of its rights; or
|
(b) |
transfer any of its rights and obligations
(including, in each case, any Security Assets) under this Deed in accordance with the provisions of the Facilities Agreement.
|
19 |
GOVERNING LAW
|
20 |
ENFORCEMENT
|
20.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) (a "Dispute").
|
(b) |
The Shareholder accepts that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly it will not argue to the contrary.
|
(c) |
This Clause 20.1 (Jurisdiction) is for the benefit of the Security Agent only. As a result, the Security Agent shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Security Agent may take concurrent proceedings in any number of jurisdictions.
|
20.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, the Shareholder:
|
(i) |
irrevocably appoints Ince Process Agents Ltd of 2 Leman Street, London E1 8QN, U.K. as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
(ii) |
agrees that failure by a process agent to notify the Shareholder of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Shareholder must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Security Agent. Failing this, the Security Agent may appoint another agent for this purpose.
|
SIGNED by
|
)
|
[—]
|
)
|
for and on behalf of
|
)
|
DRILLSHIP ALONISSOS STOCK TRUST )
|
)
|
in the presence of:
|
)
|
EXECUTED AS A DEED
|
)
|
by DRILLSHIP ALONISSOS STOCK TRUST
|
)
|
acting by [—]
|
)
|
in the presence of:
|
)
|
To: |
Drillship Alonissos Shareholders Inc. (the "Company")
|
(a) |
the Facilities Agreement dated [—] (as the same may from time to time be supplemented and/or amended the "Facilities Agreement") entered into between (i) the Company as borrower, (ii) the Guarantors, (iii) the Lenders, (iv) the Facility Agent and (v) the Security Agent (all as defined therein);
|
(b) |
the Deed dated [—] (as the same may from time to time be supplemented and/or amended the "Deed") entered into by Drillship Alonissos Stock Trust, as Shareholder of the Company, in favour of the Security Agent.
|
SHAREHOLDER
|
||
EXECUTED AS A DEED
on behalf of DRILLSHIP ALONISSOS STOCK TRUST acting by In the presence of: Witness' signature: /s/ Edgar Perez
Witness' name: Edgar Perez
Witness' address: Wilmington Trust Company
1100 North Market Street Wilmington, DE 19890 |
)
) ) ) ) ) ) ) ) ) |
/s/ Scott Wetzel
Scott Wetzel Financial Services Officer |
SECURITY AGENT
|
||
EXECUTED AS A DEED
by DNB BANK ASA acting by in the presence of: Witness' signature: /s/ Joanna Sissens
Witness' name: Joanna Sissens
Witness' address: Solicitor
London EC2A 2HB |
)
) ) ) ) ) ) ) ) |
/s/ Ida Marie Oedegaard
Ida Marie Oedegaard
Attorney-in-Fact
|
(1) |
EASTERN MED CONSULTANTS INC., a company organized and existing under the laws of Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 ("Eastern Med"); and
|
(2) |
AZARA SERVICES S.A., a company organized and existing under the laws of. Marshall islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MEH96960 ("Azara")
|
A. |
Eastern Med and Azara have entered into a Consultancy Agreement dated 9th September 2013 with effect as of 1st January 2013, as amended and supplemented from time to time (the "Consultancy Agreement") pursuant to which Azara was engaged to act as consultant for Eastern Med and Ocean Rig .UDW Inc. of Cayman Islands ("UDW") and for any affiliates, subsidiaries or holding companies thereof, as directed. by Eastern Med, in relation to the duties of the Chief Executive Officer ("CEO") of UDW and Azara was entitled to receive from Eastern Med the compensation referred therein.
|
B. |
The Parties have mutually agreed to terminate at no cost the Consultancy Agreement with effect as of 31st December 2016.
|
1. |
THAT the Consultancy Agreement shall be terminated at no cost and shall be no longer in force and effect with effect as of 31st December 2016 (the "Effective Date").
|
2. |
THAT from the from the Effective Date the Parties hereby mutually release and discharge each other and any of its affiliates, subsidiaries or holding companies and its officers, directors and employees from and against any and all monetary claims, costs, damages, liabilities, and/or any other debts whatsoever which either of the Parties hereto now has or may hereafter have, against the other Party hereto, by reason of, or in connection with the Consultancy Agreement and/or the termination of the Consultancy Agreement pursuant to the provisions of this Agreement.
|
For and on behalf of
EASTERN MED CONSULTANTS INC.
/s/ Adriano Cefai
Name: Dr. Adriano Cefai
Title: Director or OMEGA SERVICES LIMITED. Sole Director of Eastern Med
Consultants Inc. Dr. Adriano Cefai
Director
Omega Services Limited
5/1 Merchants Street
Valletta VLT 1171
|
For and on behalf of
AZARA SERVICES S.A.
/s/ Maria Phylactou
Name: Maria Phylactou Title: Director of M.C.R.S. Limited. Sole Director of Azara Services S.A. |
(1) |
EASTERN MED CONSULTANTS INC., a company organized and existing under the laws of Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 ("Eastern Med"); and
|
(2) |
BASSET HOLDINGS INC., a company organized and existing under the laws of Marshall Islands having its registered office at Trust Company Complex:. Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 ("Basset")
|
A. |
Eastern Med and Basset have entered into a Consultancy Agreement dated 17th July 2012 with effect as of 1" June 2012 as amended and novated from time to time (the "Consultancy Agreement") pursuant to which Basset was engaged to act as consultant for Eastern Med and Ocean Rig UDW Inc. of Cayman Islands ("UDW") and for any affiliates, subsidiaries or holding companies thereof, as directed by Eastern Med, in relation to the duties of the Executive Vice President ("EVP") of UDW and Basset was entitled to receive from Eastern Med the compensation referred therein.
|
B. |
The Parties have mutually agreed to terminate at no cost the Consultancy Agreement with effect as of 31st December 2016.
|
1. |
THAT the Consultancy Agreement shall be terminated at no cost and shall be no longer in force and effect with effect as of 31st December 2016 (the "Effective Date").
|
2. |
THAT from the from the Effective Date the Parties hereby mutually release and discharge each other and any of its affiliates, subsidiaries or holding companies and its officers, directors and employees from and against any and all monetary claims, costs, damages, liabilities, and/or any other debts whatsoever which either of the Parties hereto now has or may hereafter have, against the other Party hereto, by reason of, or in connection with the Consultancy Agreement and/or the termination of the Consultancy Agreement pursuant to the provisions of this Agreement.
|
For and on behalf of
EASTERN MED CONSULTANTS INC.
/s/ Adriano Cefai
Name: Dr. Adriano Cefai
Title: Director or OMEGA SERVICES LIMITED, Sole Director of Eastern Med
Consultants Inc. Dr. Adriano Cefai
Director Omega Services Limited 5/1 Merchants Street Valletta VLT 1171 |
For and on behalf of
BASSET HOLDINGS INC.
/s/ Demetris Georgiades
Name: Demetris Georgiades Title: Sole Director |
1. |
With effect as of the Effective Date, the main terms of the TMS Agreement are hereby amended as follows:
|
a. |
The existing monthly fee of USD835,000 to be replaced by an annual fee of USD15,500,000 payable monthly;
|
b. |
The performance fee of up to USD10,000,000 per annum to be provided in stock or cash at the discretion of the Board of Directors of the Company. Such fee for the year 2016 to be USD7,000,000;
|
c. |
The insurance to be payable on a gross basis;
|
d. |
An additional service of executive management and accounting to be also included;
|
e. |
The escalation due to the inflation of currency to be reviewed annually;
|
f. |
The termination fee to be reduced annually by USD15,000,000, starting in 2018, but in any given time shall not be lower than USD30,000,000;
|
g. |
The offshore personnel fee to be reduced to USD35.00 per day per person;
|
h. |
The catering fee to be reduced to USD50.00 per day per person;
|
i. |
The standard change of control provisions to apply; and
|
j. |
The financing fee to be increased to 50bps.
|
2. |
The Effective Date of this Addendum is as of 1St January 2017 (the "Effective Date").
|
3. |
This Agreement shall be governed and construed in accordance with English Law and any disputes arising hereunder shall be referred to arbitration in London, UK under the LMAA Rules.
|
4. |
All other terms and conditions of the Agreement, save those amended above, shall remain unaltered and in full force and effect.
|
/s/ Dimitrios Koukoulas
Mr. Dimitrios Koukoulas Executive Vice President of Ocean Rig UDW Inc. |
Dr. Adriano Cefai
Director MARE SERVICES LTD 5/1 Merchants Street Valletta 1171 /s/ Adriano Cefai
Dr. Adriano Cefai Director of Mare Services Limited Sole Director of TMS Offshore Services Ltd. |
Name of Subsidiary
|
Jurisdiction of Incorporation
|
Drill Rigs Holdings Inc.
|
Marshall Islands
|
Ocean Rig 1 Shareholders Inc.
|
Marshall Islands
|
Ocean Rig 1 Inc.
|
Marshall Islands
|
Ocean Rig 1 Greenland Operations Inc.
|
Marshall Islands
|
Ocean Rig Falkland Operations Inc.
|
Marshall Islands
|
Ocean Rig West Africa Operations Inc.
|
Marshall Islands
|
Ocean Rig 2 Shareholders Inc
|
Marshall Islands
|
Ocean Rig 2 Inc.
|
Marshall Islands
|
Drill Rigs Operations Inc.
|
Marshall Islands
|
Ocean Rig EG Operations Inc.
|
Marshall Islands
|
Ocean Rig Norway Operations Inc
|
Marshall Islands
|
Ocean Rig Liberia Operations Inc.
|
Marshall Islands
|
Ocean Rig Ireland Operations Inc.
|
Marshall Islands
|
Drillships Holdings Inc.
|
Marshall Islands
|
Drillship Hydra Shareholders Inc.
|
Marshall Islands
|
Drillship Hydra Owners Inc.
|
Marshall Islands
|
Ocean Rig Corcovado Greenland Operations Inc.
|
Marshall Islands
|
Drillship Paros Shareholders Inc.
|
Marshall Islands
|
Drillship Paros Owners Inc.
|
Marshall Islands
|
Drillships Holdings Operations Inc.
|
Marshall Islands
|
Ocean Rig Angola Operations Inc.
|
Marshall Islands
|
Ocean Rig Gabon Operations Inc.
|
Marshall Islands
|
Drillships Investment Inc.
|
Marshall Islands
|
Kithira Shareholders Inc.
|
Marshall Islands
|
Drillship Kithira Owners Inc.
|
Marshall Islands
|
Ocean Rig Poseidon Operations Inc.
|
Marshall Islands
|
Skopelos Shareholders Inc.
|
Marshall Islands
|
Drillship Skopelos Owners Inc.
|
Marshall Islands
|
Drillships Investment Operations Inc.
|
Marshall Islands
|
Ocean Rig Namibia Operations Inc.
|
Marshall Islands
|
Ocean Rig Cuanza Operations Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Inc.
|
Marshall Islands
|
Drillship Skiathos Shareholders Inc.
|
Marshall Islands
|
Drillship Skiathos Owners Inc.
|
Marshall Islands
|
Drillship Skyros Shareholders Inc.
|
Marshall Islands
|
Drillship Skyros Owners Inc.
|
Marshall Islands
|
Drillship Kythnos Shareholders Inc.
|
Marshall Islands
|
Drillship Kythnos Owners Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Operations Inc.
|
Marshall Islands
|
Ocean Rig Cunene Operations Inc.
|
Marshall Islands
|
Ocean Rig Cubango Operations Inc.
|
Marshall Islands
|
Ocean Rig Operations Inc.
|
Marshall Islands
|
Ireland Drilling Crew Inc.
|
Marshall Islands
|
Drillships Financing Holding Inc.
|
Marshall Islands
|
Alley Finance Co.
|
Marshall Islands
|
Algarve Finance Ltd
|
Marshall Islands
|
Agon Shipping Inc.
|
Marshall Islands
|
Ocean Rig Global Chartering Inc.
|
Marshall Islands
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
Drillship Alonissos Owners Inc.
|
Marshall Islands
|
Name of Subsidiary
|
Jurisdiction of Incorporation
|
Ocean Rig Management Inc.
|
Marshall Islands
|
Eastern Med Consultants Inc.
|
Marshall Islands
|
Ocean Rig Spares Inc.
|
Marshall Islands
|
Bluesky Shareholders Inc.
|
Marshall Islands
|
Bluesky Owners Inc.
|
Marshall Islands
|
Ocean Rig Black Sea Cooperatief U.A.
|
Netherlands
|
Ocean Rig Black Sea Operations B.V.
|
Netherlands
|
Ocean Rig Drilling Operations Cooperatief U.A.
|
Netherlands
|
Ocean Rig Drilling Operations B.V.
|
Netherlands
|
Ocean Rig Block 33 Brasil Cooperatief U.A.
|
Netherlands
|
Ocean Rig Block 33 Brasil B.V.
|
Netherlands
|
Ocean Rig Olympia Operations Ghana Limited
|
Ghana
|
Primelead Limited
|
Cyprus
|
Ocean Rig UDW LLC
|
U.S.
|
Drillships Projects Inc.
|
Delaware, U.S.
|
Drillship Alonissos Stock Trust
|
Delaware, U.S.
|
Ocean Rig Canada Inc.
|
Canada
|
Ocean Rig North Sea AS
|
Norway
|
Ocean Rig AS
|
Norway
|
Ocean Rig UK Limited
|
UK
|
Olympia Rig Angola Holding S.A.
|
Angola
|
Olympia Rig Angola Limitada
|
Angola
|
Ocean Rig Deepwater Drilling Limited
|
Nigeria
|
Ocean Rig do Brasil Servicos de Petroleo Ltda.
|
Brazil
|
Ocean Rig Rio de Janeiro Servicos de Petroleo Ltda.
|
Brazil
|
Ocean Rig Offshore Management Limited
|
Jersey
|
OR Crewing Limited
|
Jersey
|
OCR Falklands Drilling Inc.
|
Marshall Islands
|
Drillships Ventures Projects Inc.
|
Delaware, U.S.
|
South Africa Drilling Crew Inc.
|
Marshall Islands
|
Ocean Rig Congo Operations Inc.
|
Marshall Islands
|
OR Global Block Operators Inc.
|
Marshall Islands
|
Drillship Santorini Shareholders Inc.
|
Marshall Islands
|
Drillship Santorini Owners Inc.
|
Marshall Islands
|
Drillship Crete Shareholders Inc.
|
Marshall Islands
|
Drillship Crete Owners Inc.
|
Marshall Islands
|
Drillship Amorgos Shareholders Inc.
|
Marshall Islands
|
Drillship Amorgos Owners Inc.
|
Marshall Islands
|
OR Benguela Operations Inc.
|
Marshall Islands
|
OR Senegal Operations Inc.
|
Marshall Islands
|
Ocean Rig Investments Inc.
|
Marshall Islands
|
OR Norge Operations Inc.
|
Marshall Islands
|
Ocean Rig Management Services Inc.
|
Marshall Islands
|
Ocean Rig Operations Holdings Inc.
|
Marshall Islands
|
Ocean Rig Cayman Management Services SEZC Limited
|
Cayman Islands
|
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