EXHIBIT 4.10
DATED 19 DECEMBER 1998
PETRODRILL SEVEN LIMITED
as Borrower
- and -
PRIDE INTERNATIONAL INC. and
MARITIMA PETROLEO E ENGENHARIA LTDA
as Sponsors
- and -
THE LENDERS herein referred to
as Lenders
- and -
MITSUBISHI CORPORATION (UK) PLC
as Facility Agent
- and -
MITSUBISHI CORPORATION (UK) PLC
as Security Agent
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DEED OF GUARANTEE AND UNDERTAKING
relating to the Loan Agreement
in respect of Amethyst 7
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F I E L D - X X X X X X - X X X X X X X X X X
4 1 V I N E S T R E E T L O N D O N E C 3 N 2 A A
CONTENTS
CLAUSE/HEADING PAGE
1. DEFINITIONS AND INTERPRETATION 2
2. REFUND UNDERTAKING 3
3. COST OVERRUNS UNDERTAKING 4
4. INSURANCE DEDUCTIBLES UNDERTAKING 4
5. OPEX SHORTFALL UNDERTAKING 5
6. CHARTERPARTY AND SERVICES RENDERING CONTRACT
PERFORMANCE UNDERTAKING 5
7. MANAGEMENT AGREEMENT PERFORMANCE UNDERTAKING 6
8. MAINTENANCE OF INSURANCES UNDERTAKING 7
9. PAYMENTS TO THE BORROWER 8
10. PAYMENTS TO/LOANS BY LENDERS 9
11. PRESERVATION OF OBLIGATIONS 11
12. PAYMENTS 14
13. TAXATION 15
14. REPRESENTATIONS AND WARRANTIES 15
15. UNDERTAKINGS 16
16. CURRENCY INDEMNITY 18
17. DELEGATION, ASSIGNMENT 19
18. NOTICES, ETC. 19
19. GOVERNING LAW AND JURISDICTION 21
20. COUNTERPARTS 23
21. WAIVER; REMEDIES CUMULATIVE 24
22. LANGUAGE 24
23. SEVERABILITY 24
THIS DEED is made on December 1998 BETWEEN:-
(1) PETRODRILL SEVEN LIMITED of Xxxxx Xxxxxxx and Fabrega Trust Co., BVI
Limited, 325 Waterfront Drive, Xxxx Xxxxx Building, 2nd Floor, Xxxxxxx'x
Xxx, Road Town, Tortola, British Virgin Islands (the "BORROWER");
(2) PRIDE INTERNATIONAL INC,. a company incorporated under the laws of the
State of Louisiana, USA, of 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
XX00000 ("PRIDE") and MARITIMA PETROLEO E ENGENHARIA LTDA., a company
incorporated under the laws of Brazil, of Avenida Almirante Xxxxxxx 52,
Group 3400, Rio de Janeiro ("MARITIMA") (together, the "SPONSORS" and,
individually, a "SPONSOR");
(3) THE LENDERS, the respective names and offices of which are set out in
Clause 1.2, as Initial Lenders (the "INITIAL LENDERS");
(4) MITSUBISHI CORPORATION (UK) PLC, a company incorporated in England and
Wales (Reg No. 2214224), whose registered office is at Bow Xxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, in its capacity as facility agent for the
Lenders (the "FACILITY Agent"); and
(5) MITSUBISHI CORPORATION (UK) PLC, a company incorporated in England and
Wales (Reg No. 2214224), whose registered office is at Bow Xxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, as security trustee and agent for the
Secured Parties.
WHEREAS:
(A) By a loan agreement (as amended or supplemented from time to time, the
"LOAN AGREEMENT") of even date herewith and made between the Initial
Lenders (1), the Borrower (2), the Facility Agent (3) and the Security
Agent (4), the Initial Lenders have agreed, upon and subject to the terms
and conditions of the Loan Agreement, to make available to the Borrower
loan facilities not exceeding US$180,000,000 for the purposes therein
specified.
(B) By a further loan agreement (the "SISTER COMPANY LOAN AGREEMENT") of even
date herewith and made between the Initial Lenders (1), the Sister Company
(2), the Facility Agent (3) and the Security Agent (4), the Initial
Lenders have agreed to make available to the Sister Company (on
substantially identical terms to the Loan Agreement) loan facilities not
exceeding US$160,000,000 for the purposes therein specified.
(C) The execution and delivery of this Deed of Guarantee and Undertaking is
one of the conditions precedent to the Initial Lenders' making their
Commitments available under the Loan Agreement and under the Sister
Company Loan Agreement.
(D) The Sponsors have agreed to execute and deliver this Deed of Guarantee and
Undertaking in consideration of the Initial Lenders, at the Sponsors'
request, making or continuing loans or advances to, or otherwise giving
credit or granting accommodation or time to, the Borrower pursuant to the
Loan Agreement and/or the Sister Company Loan Agreement.
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IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 TERMS DEFINED IN THE LOAN AGREEMENT
Unless the context otherwise requires or unless otherwise defined in this
Deed of Guarantee and Undertaking, words and expressions defined in the
Loan Agreement shall have the same meanings when used in this Deed of
Guarantee and Undertaking.
1.2 OTHER DEFINED TERMS
In this Deed of Guarantee and Undertaking, unless the context otherwise
requires:
"EQUITY SHARE CAPITAL" means, in relation to any company, its issued share
capital excluding any part of that capital which (neither as regards
dividends nor as respects capital) carries any right to participate beyond
a specified amount in a distribution.
"INITIAL LENDERS" means Petro Dia Three SA and Petro Dia Four SA, each
being a company incorporated in the Republic of Panama whose principal
place of business is at 00xx Xxxxxx, Xxxxxxxxxxxx Xxxxxxx, Xxxxx Xxxxx
Bank, 00xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx of
Panama;
"LENDERS" means the Initial Lenders and any person who becomes a Lender
from time to time pursuant to Clause 15 (TRANSFERS) of the Loan Agreement,
but excluding any person who ceases to be a Lender pursuant to that
Clause;
"SISTER COMPANY GUARANTEE AND UNDERTAKING" means the deed of guarantee and
undertaking (in substantially the same terms as this Deed of Guarantee and
Undertaking) executed pursuant to the Sister Company Loan Agreement and
dated the same date as this Deed of Guarantee and Undertaking;
"TAXES" means any present or future taxes, levies, duties, charges, fees,
deductions or withholdings of any nature now or hereafter imposed, levied,
collected, withheld or assessed by any country or any political
sub-division or taxing authority thereof.
1.3 INTERPRETATION
This Deed of Guarantee and Undertaking shall be interpreted consistently
with the Loan Agreement, and accordingly the provisions of Clauses 1.2 to
1.4 (inclusive) of the Loan Agreement shall apply hereto and (MUTATIS
MUTANDIS) shall be deemed to be incorporated into this Deed of Guarantee
and Undertaking as if set out in full in this Deed of Guarantee and
Undertaking.
1.4 SECURITY AGENT
The Security Agent enters into this Deed of Guarantee and Undertaking as
security trustee and agent for the Secured Parties in accordance with the
Security Trust Deed and all rights and powers conferred on or vested in
the Security Agent under this Deed of Guarantee and Undertaking shall be
conferred on and vested in the Security Agent in such capacity, and the
term "SECURITY AGENT" shall be construed accordingly.
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2. REFUND UNDERTAKING
2.1 DEFINITIONS
In this Clause 2:
"BUILDER'S RISK INSURANCE" means such part of the insurances effected by
the Temporary Confirmation of Insurances which relates to the Rig during
the period up to the time of delivery to the Borrower in accordance with
the Rig Construction Contract;
"CONSTRUCTION CONTRACT REPAYMENTS" means the aggregate amount of all
payments/repayments and payments in respect of interest payable (in each
case whether or not paid) by the Builder pursuant to the Rig Construction
Contract and/or by the Export-Import Bank of Korea pursuant to the Refund
Guarantee and/or by any insurers pursuant to the Builder's Risk Insurance
(in each case to the Security Agent as assignee of the benefit of the Rig
Construction Contract, the Refund Guarantee and the Borrower's interest in
the Builder's Risk Insurance) (i) following any termination or rescission
of the Rig Construction Contract (however arising) or (ii) upon any refund
of all or any of the instalments of the Contract Price of the Rig and/or
any interest otherwise becoming payable or (iii) following a Total Loss
prior to the delivery of the Rig by the Builder; and
"TEMPORARY CONFIRMATION OF INSURANCE" means the temporary confirmation of
insurance (and described as Temporary Confirmation of Insurance) issued by
McGriff, Seibels, Bartama & Xxxxxx Inc (as brokers) on 15 December 1998
with Assigned No. MS-S711A - Daewoo.
2.2 UNDERTAKING
The Sponsors hereby jointly and severally and irrevocably and
unconditionally undertake to the Borrower and as a separate and
independent obligation to the Security Agent in each case as primary
obligors that:-
(i) in the event of any termination or rescission of the Rig
Construction Contract (however arising), or
(ii) upon any refund of all of the instalments of the Contract Price
becoming payable (whether or not paid), or
(iii) following a Total Loss prior to the delivery of the Rig by the
Builder,
they shall, within 7 Banking Days of first written demand from the
Facility Agent, pay to the Borrower in accordance with Clause 9 the amount
which is determined by the Facility Agent as being the excess (if any) of
the Outstanding Indebtedness over the Construction Contract Repayments.
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3. COST OVERRUNS UNDERTAKING
3.1 DEFINITIONS
In this Clause 3:
"FUNDED AMOUNT" means at any relevant time the aggregate of (i) Xxx
Xxxxxxx xxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx Dollars (US$180,000,000) and (ii)
all amounts paid to, and received by, the Borrower by the Sponsors in
accordance with Clause 3.2; and
"SEVERAL PROPORTIONS" has the same meaning as is given to this
expression in Clause 6.1.
3.2 UNDERTAKING
If on any date and from time to time the Facility Agent shall determine
that the amount of the Total Project Costs incurred as at such date
exceeds the Funded Amount at that time, then, without prejudice to or in
any way limiting or affecting their other obligations under this Deed of
Guarantee and Undertaking, the Sponsors hereby severally and
unconditionally and irrevocably agree and undertake with the Borrower and
as a separate and independent obligation with the Security Agent that they
will, within 7 Banking Days of first written demand from the Facility
Agent made from time to time, pay in their Several Proportions to the
Borrower in accordance with Clause 9 a sum which is then determined by the
Facility Agent as being equal to the amount of such excess.
3.3 LIMITATION
The aggregate total liability of the Sponsors under Clause 3 of this Deed
of Guarantee and Undertaking shall not exceed US$20,000,000 less the
aggregate of all amounts which the Sponsors have, at the date of any
payment under Clause 3 of this Deed of Guarantee and Undertaking, paid
pursuant to Clause 3 of the Sister Company Guarantee and Undertaking.
4. INSURANCE DEDUCTIBLES UNDERTAKING
4.1 DEFINITIONS
In this Clause 4:
"DELAY IN DELIVERY INSURANCE" means the insurances referred to in
paragraph (A) (DELAY IN DELIVERY) of Section III (BUSINESS INTERRUPTION)
of the Conditions to the Temporary Confirmation of Insurance;
"INSURANCE DEDUCTIBLE" means any excess or deductible applied in respect
of any claim arising under the Delay in Delivery Insurance and/or the Loss
of Hire Insurance; and
"LOSS OF HIRE INSURANCE" means the insurances referred to in paragraph (B)
(LOSS OF HIRE) of Section III (BUSINESS Interruption) of the Conditions to
the Temporary Confirmation of Insurance; and
"TEMPORARY CONFIRMATION OF INSURANCE" has the same meaning as is given to
this expression in Clause 2.1.
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4.2 PAYMENT UNDERTAKING
The Sponsors hereby jointly and severally and unconditionally and
irrevocably undertake to the Borrower and as a separate and independent
obligation to the Security Agent that in the event that any incident shall
occur in relation to the Rig which gives rise to a right to claim under
the Delay in Delivery Insurance or the Loss of Hire Insurance they will,
within 7 Banking Days of first written demand from the Facility Agent, pay
to the Borrower in accordance with Clause 9 such amount as is determined
by the Facility Agent to be equal to the amount of any Insurance
Deductible applicable in respect of each such claim.
5. OPEX SHORTFALL UNDERTAKING
5.1 DEFINITIONS
In this Clause 5:
"MANAGEMENT AGREEMENT" has the same meaning as is given to this
expression in Clause 7.1;
"MONTHLY OPEX AMOUNT" means all Opex actually incurred in
relation to any calendar month during the Security Period; and
"OPEX" means the costs of operating the Rig including the costs
listed in Clause 4.5.3 of the Management Agreement;
5.2 PAYMENT UNDERTAKING
The Sponsors hereby jointly and severally and unconditionally and
irrevocably undertake to the Borrower and as a separate and independent
obligation to the Security Agent that in the event that in any calendar
month the Monthly Opex Amount exceeds the Monthly Outgoings for that
calendar month they will, within 7 Banking Days of first written demand
from the Facility Agent, pay to the Borrower in accordance with Clause 9
such amount as is determined by the Facility Agent to be equal to the
amount of such excess for that calendar month.
6. CHARTERPARTY AND SERVICES RENDERING CONTRACT PERFORMANCE
UNDERTAKING
6.1 DEFINITIONS
In this Clause 6:
"SEVERAL PROPORTIONS" means (in relation to Pride) 30% and (in
relation to Maritima) 70%.
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6.2 UNDERTAKING
If at any time any default is made by the Borrower in the due and punctual
performance or observance of any of the obligations on its part to be
performed under or in connection with the Charterparty and/or the Services
Rendering Contract in all respects in accordance with their respective
terms, or if any of such obligations are otherwise not performed or
observed by the time or in the manner provided therein, the Sponsors
hereby irrevocably and unconditionally undertake to the Borrower and as a
separate and independent obligation to the Security Agent:-
(i) jointly and severally that they will promptly take all steps (not
involving the payment of money) that may be necessary to ensure that
the obligations of which the Borrower is in default are performed in
accordance with the Charterparty or (as the case may be) the
Services Rendering Contract, and
(ii) severally that they will, within 7 Banking Days of first written
demand from the Facility Agent, pay in their Several Proportions to
the Borrower in accordance with Clause 9 such amount as is
determined by the Facility Agent to be necessary so as to enable the
Borrower to perform (or to fund the performance of)such obligations,
PROVIDED THAT (a) this undertaking shall not, and shall not be construed
so as to, impose on the Sponsors a liability greater than that which the
Borrower has or would have to Petrobras under the Charterparty or (as the
case may be) the Services Rendering Contract and (b) in the event of any
default , or failure on the part of the Sponsors (or either of them) to
honour, the undertaking contained in paragraph (i) above neither of the
Sponsors shall have any liability to make any payment(s) to the Borrower
and/or to the Security Agent in respect of any lost payments of
Charterparty Hire or of the Services Rendering Contract Payments that may
(but for such default or failure) have become payable to the Borrower or
the Security Agent (as assignee of the Borrower's rights).
7. MANAGEMENT AGREEMENT PERFORMANCE UNDERTAKING
7.1 DEFINITIONS
In this Clause 7:
"MANAGEMENT AGREEMENT" means the management agreement relating to the Rig
dated as of 5 November 1998 by and made between the Borrower and the
Manager, a copy of which has been supplied to each of the parties hereto
by the Borrower prior to the date hereof;; and
"MANAGER" means Formaritima Limited as manager under the
Management Agreement.
7.2 UNDERTAKING
The Sponsors hereby jointly and severally and irrevocably and
unconditionally undertake to the Borrower and as a separate and
independent obligation to the Security Agent to procure that the Manager
duly and punctually performs and observes all the obligations on its part
to be performed under or in connection with the Management Agreement in
all respects in accordance with its terms.
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Without prejudice to the generality of foregoing, if at any time any
default is made by the Manager in the performance or observance of any
such obligations, or if any of such obligations are otherwise not
performed or observed by the time or in the manner provided therein, the
Sponsors hereby jointly and severally and irrevocably unconditionally
undertake to the Borrower and as a separate and independent obligation to
the Security Agent that:-
(i) they will promptly take all steps that may be necessary to ensure
that the obligations of which the Manager is in default are
performed in accordance with the Management Agreement (including,
without limitation, the payment of any defaulted amounts);
(ii) that they will, within 7 Banking Days of first written demand from
the Facility Agent, pay to the Borrower in accordance with Clause 9
any sum which is determined by the Facility Agent to be payable by
the Manager to the Borrower as a direct consequence of such default.
provided that in the event of any breach of, or failure on the part of the
Sponsors (or either of them) to honour, the undertakings contained in
paragraphs (i) and (ii) above neither of the Sponsors shall have any
liability to make any payment(s) to the Borrower and/or to the Security
Agent in respect of any lost payments of Charterparty Hire and/or of the
Services Rendering Contract Payments that may (but for such default or
failure) have become payable to the Borrower
8. MAINTENANCE OF INSURANCES UNDERTAKING
8.1 DEFINITIONS
In this Clause 8:
"TEMPORARY CONFIRMATION OF INSURANCE" has the same meaning as is given to
this expression in Clause 2.1.
8.2 UNDERTAKING
The Sponsors hereby jointly and severally and unconditionally and
irrevocably undertake to the Secured Parties that they will throughout the
Security Period:-
(i) procure that insurances are effected and maintained (with
the Security Agent, the Facility Agent and each of the
Lenders being named as a principal assured) with insurers
acceptable to the Facility Agent providing insurance cover
against such risks as are insured by the Temporary
Confirmation of Insurance and on terms and conditions no
less favourable than are provided for by the Temporary
Confirmation of Insurance and (subject to such insurance
being available in the international insurance markets)
otherwise as the Facility Agent may from time to time at
its discretion require; and
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(ii) procure that the Borrower complies with all its obligations in
respect of Insurances as contained in the Loan Agreement and the
Deed of Covenants.
8.3 REMEDY FOR BREACH OF UNDERTAKING
In the event that the Sponsors shall at any time and for any reason fail
to comply in all material respects with their undertaking contained in
this Clause 8.2, then the Lenders (or any of them) may at their option
(but shall not be obliged to) themselves effect and thereafter maintain
insurances to the extent necessary to restore the insurances to the level
at which they are required to be maintained. All costs incurred by the
relevant Lenders in effecting and/or maintaining any such insurances
(including, but not limited to, all premiums, calls, contributions or
other sums payable in respect of such insurances) shall be repayable by
the Sponsors (who shall be jointly and severally liable in respect
thereof) on first demand by the Facility Agent together with interest
thereon (which will also be payable upon first demand by the Facility
Agent and which shall be compounded at such intervals as the Facility
Agent may determine) at such annual rate as is conclusively certified by
the Facility Agent to the Sponsors as being equal to the aggregate of (1)
two and one half per centum (2.5%) per annum and (2) the higher of (a) the
cost to the relevant Lenders of funding such costs by borrowing on arms
length terms plus any other expenses or losses which such Lenders may have
incurred in respect thereof and (b) 13%.
The remedy specified above shall be the sole remedy of the Security Agent
for breach by the Sponsors of their undertaking contained in this Clause
8.
9. PAYMENTS TO THE BORROWER
9.1 SUBORDINATED LOANS
Simultaneously with the execution of this Deed of Guarantee and
Undertaking the Borrower, the Sponsors, the Facility Agent and the
Security Agent are executing a Subordinated Loan Facility Agreement in the
approved form (the "SUBORDINATED LOAN FACILITY AGREEMENT"). As between the
Borrower and the Sponsors, any payment to be made by the Sponsors to the
Borrower under any of Clauses 2, 3, 4, 5, 6 and/or 7 shall be made within
7 Banking Days of the Facility Agent's first written demand therefor by
remittance to the Management Account and shall be made by way of
subordinated loan to the Borrower under the Subordinated Loan Facility
Agreement, PROVIDED ALWAYS that the Sponsors shall not be required to make
any amount available to the Borrower by way of subordinated loan under the
Subordinated Loan Facility Agreement if within 7 Banking Days after the
Facility Agent's first written demand therefor the Sponsors shall have
made the amount thereof available to the Borrower (and the Borrower shall
have received such amount) in cleared funds by way of subscription for
equity share capital in the Borrower.
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9.2 FACILITY AGENT'S CERTIFICATES
A certificate in writing signed on behalf of the Facility Agent which:
(i) makes a determination of any amount(s) for the purposes of Clause 2
(REFUND UNDERTAKING), Clause 3 (COST OVERRUNS UNDERTAKING), Clause 4
(INSURANCE DEDUCTIBLES UNDERTAKING), Clause 5 (OPEX SHORTFALL
UNDERTAKING), Clause 6 (CHARTERPARTY AND SERVICES RENDERING CONTRACT
PERFORMANCE UNDERTAKING) and/or Clause 7 (MANAGEMENT AGREEMENT
PERFORMANCE UNDERTAKING), and
(ii) specifies the provision(s) of this Deed of Guarantee and Undertaking
pursuant to which such amount(s) is/are payable, and
(iii) gives reasonable details of the manner of calculation thereof
shall (in the absence of manifest error) be conclusive as to the
subject matter thereof.
9.3 EQUITABLE REMEDIES
It is acknowledged that, without prejudice to any other rights or remedies
that the Borrower and/or the Security Agent might have, damages alone will
not be an adequate remedy for any breach by the Sponsors of any of their
obligations to make any payment(s) to the Borrower under any of Clauses 2,
3, 4, 5, 6 and/or 7 and under the provisions of Clause 9 and that
accordingly the Borrower and/or the Security Agent may be entitled without
proof of special damage to the remedies of injunction, specific
performance or other equitable relief for any threatened or actual breach
of the provisions of this Agreement by the Sponsors.
10. PAYMENTS TO/LOANS BY LENDERS
10.1 PAYMENTS BY SPONSORS TO LENDERS
Without prejudice to any of the other provisions of this Deed of Guarantee
and Undertaking, in the event that for any reason (including, without
limitation, any inability or unwillingness on the part of the Borrower to
request or make any drawings under the Subordinated Loan Facility
Agreement) any amount(s) payable by the Sponsors to the Borrower under any
of Clauses 2, 3, 4, 5, 6 and/or 7 has/have not been paid to, and received
by, the Borrower in cleared funds within 7 Banking Days of the Facility
Agent's first written demand therefor, then the Sponsors will be obliged
forthwith upon the Security Agent's first written demand to make payment
of such unpaid amount(s) to the Security Agent for the account of the
Lenders.
10.2 LOANS BY LENDERS TO BORROWER
Without prejudice to the provisions of Clause 10.1 or to any other rights
of the Security Agent under this Deed of Guarantee and Undertaking, in the
circumstances stipulated in Clause 10.1 and pending the Sponsors complying
with their obligations under Clause 9.1 and/or Clause 10.1 the Lenders (or
any of them) may at their option (but shall not be obliged to) themselves
provide funds to the Borrower by way of loan in an amount or amounts equal
to the amount(s) payable (but not paid) by the Sponsors as aforesaid. Any
such loans shall (as between the Borrower and the relevant Lenders) bear
no interest, but the Sponsors shall be liable to compensate the relevant
Lenders by making payment to them of such amount (calculated on a per
annum basis) as is equal to interest on the amounts of such loans at such
annual rate as is conclusively certified by the Facility
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Agent to the Sponsors as being equal to the aggregate of (1) two and one
half per cent (2.5%) per annum and (2) the higher of (a) the cost to the
relevant Lenders of funding such loan(s) plus any other costs, expenses or
losses which such Lenders may have incurred in respect thereof and (b)
13%. Such amounts shall be payable upon first demand and if not paid shall
bear interest as aforesaid. Any amount(s) so provided by any Lenders by
way of loan to the Borrower shall be repayable by the Borrower on first
demand by the Security Agent (or as the relevant Lenders may otherwise
specify at the time such funds are provided), but in all other respects
shall be deemed to have been advanced by the relevant Lenders pursuant to
the Loan Agreement, shall rank PARI PASSU with all Advances made or to be
made thereunder and shall be secured by the Security Documents
accordingly.
10.3 APPLICATION OF PAYMENTS BY SPONSORS
In the event that the Sponsors make any payment(s) to the Security Agent
for the account of the Lenders pursuant to their obligations under Clause
10.1, then forthwith upon receipt by the Security Agent of such payment(s)
in cleared funds:
(i) if the amount(s) of such payment(s) received is/are less
than, or equal to, the aggregate amount(s) of all (if any)
loans made to the Borrower pursuant to Clause 10.2 and not
previously waived and released by the Lenders (or, as the
case may be, by any relevant Lenders), the Security Agent
will pay the amounts to the relevant Lenders for their own
account absolutely pro rata in accordance with their loans
advanced to the Borrower pursuant to Clause 10.2 and such
Lenders will waive and release PRO TANTO the obligations of
the Borrower in respect of such loans, and the Sponsors
shall be deemed to have complied PRO TANTO with their
obligation to make payment of such amount(s) to the
Borrower by way of subordinated loan under the Subordinated
Loan Facility Agreement (so that the amount(s) in question
shall be treated as though they were subordinated loans
made available to the Borrower by, and repayable by the
Borrower to, the Sponsors in accordance with the provisions
of the Subordinated Loan Facility Agreement);
(ii) if and to the extent that the amount(s) of such payments
received exceed(s) the aggregate amount(s) of all (if any)
loans made to the Borrower pursuant to Clause 10.2 and not
previously waived and released by the Lenders (or, as the
case may be, by any relevant Lenders), the portion thereof
which equals the aggregate amount(s) of all (if any) loans
made to the Borrower pursuant to Clause 10.2 and not
previously waived and released by the Lender (or, as the
case may be, by any relevant Lenders) will be applied in
accordance with sub-clause (i) above, and the excess shall
be applied as follows:-
(a) in case an Event of Default or Potential Event of
Default shall have occurred and shall be continuing,
the Security Agent may (at its option) EITHER pay
such monies to the Borrower by remittance to the
Management Account (in which event the provisions of
sub-paragraph (b) below will apply) OR retain such
monies and apply the same in or towards payment of
the Secured Obligations in such order of application
as the Security Agent shall decide;
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(b) in any other case, the Security Agent shall pay such
monies to the Borrower by remittance to the
Management Account and the amounts so paid to the
Borrower shall be treated as though they were
subordinated loans made available to the Borrower by,
and repayable by the Borrower to, the Sponsors in
accordance with the provisions of the Subordinated
Loan Facility Agreement.
10.4 APPLICATION OF PAYMENTS
The Borrower hereby irrevocably agrees that any sum received by the
Security Agent from the Sponsors pursuant to any of the provisions of this
Deed of Guarantee and Undertaking may (to the extent not applied in making
good any defaults of the Sponsors in respect of their obligations to the
Borrower under this Deed of Guarantee and Undertaking) be applied by the
Security Agent in meeting payments due or to become due from the Borrower
under the Financing Documents in such order of application as the Security
Agent shall decide.
11. PRESERVATION OF OBLIGATIONS
11.1 DURATION OF OBLIGATIONS
The Sponsors agree that their respective obligations under this Deed of
Guarantee and Undertaking shall remain in full force and effect throughout
the Security Period and notwithstanding the enforcement by the Security
Agent of any of its rights under the Security Documents (including,
without limitation, the appointment of a Receiver) or the taking of
possession of any of the assets which stand security for the Secured
Obligations or any part of such assets.
11.2 CONTINUING SECURITY ETC.
Each of the Sponsors declares and agrees that:
(i) this Deed of Guarantee and Undertaking shall be held by the
Security Agent as a continuing security and shall not be
satisfied by any intermediate payment or satisfaction of
any part of the moneys and liabilities hereby agreed to be
paid or performed and shall remain in full force and
effect until the moneys and liabilities hereby agreed to be
paid or performed have been unconditionally and irrevocably
paid and discharged in full to the satisfaction of the
Security Agent;
(ii) it has not received any security from the Borrower or from any other
persons for the giving of this Deed of Guarantee and Undertaking and
it will not take any such security without the prior written consent
of the Security Agent, and the Sponsors will hold any security taken
in breach of this provision in trust for the Security Agent;
(iii) the Security Agent shall not be bound to enforce any guarantee or
security or proceed or take any other steps against the Borrower or
any other person before enforcing this Deed of Guarantee and
Undertaking; and
-11-
(iv) this Deed of Guarantee and Undertaking shall be in addition to, and
not in substitution for, any other rights which the Secured Parties
may now or hereafter have under or by virtue of any guarantee,
security, encumbrance or agreement or any lien or by operation of
law or under any collateral or other security now or hereafter held
by the Security Agent or to which the Security Agent may be
entitled.
11.3 AVOIDANCE OF SECURITIES
Any settlement or discharge under this Deed of Guarantee and Undertaking
between the Security Agent and the Sponsors shall be conditional upon no
security or payment to the Security Agent by the Borrower, the Sponsors or
any other person being avoided or set aside or ordered to be refunded or
reduced by virtue of any provision or enactment relating to bankruptcy,
insolvency or liquidation for the time being in force, and if such
condition is not satisfied, the Security Agent shall be entitled to
recover from the Sponsors on demand the value of such security or the
amount of any such payment as if such settlement or discharge had not
occurred.
11.4 PRESERVATION OF RIGHTS
The obligations of the Sponsors under this Deed of Guarantee and
Undertaking shall not be affected by any act, omission, matter or thing
which, but for this provision, might operate to release or otherwise
exonerate either of the Sponsors from its or their obligations under this
Deed of Guarantee and Undertaking in whole or in part, including (without
limitation, and whether or not known to or discoverable by the Sponsors,
the Borrower, any Secured Party or any other person):
(i) any time or waiver granted to or composition with the Borrower, the
other Sponsor or any other person;
(ii) the taking, variation, compromise, discharge, composition,
arrangement, renewal or release of or refusal or neglect to perfect
or enforce any rights, remedies or securities against the Borrower,
the other Sponsor or any other person;
(iii) any legal limitation, disability, incapacity or other circumstances
relating to the Borrower, the other Sponsor or any other person;
(iv) any amendment or supplement to this Deed of Guarantee and
Undertaking, any of the Financing Documents or any other document or
security;
(v) the dissolution, liquidation, amalgamation, reconstruction or
reorganisation of the Borrower, the other Sponsor or any other
person;
(vi) the unenforceability or invalidity of any obligations of the
Borrower, the other Sponsor or any other person under this Deed of
Guarantee and Undertaking or any of the other Financing Documents or
any other document or security;
(vii) the failure of any of the Secured Parties to take any other
guarantee or security (whether contemporaneous with this Deed of
Guarantee and Undertaking) or otherwise; or
(viii) any other act, event or omission which but for the provision would
or might operate to impair, discharge or otherwise affect the
obligations of the Sponsors (or either of them) under this Deed of
Guarantee and Undertaking.
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11.5 NON-COMPETITION
Until all the Secured Obligations and the Sister Company Obligations and
the moneys and liabilities hereby agreed to be paid or performed have been
unconditionally and irrevocably paid and discharged in full to the
satisfaction of the Security Agent, the Sponsors shall not by virtue of
any payment made or performance under this Deed of Guarantee and
Undertaking on account of such moneys and liabilities or by virtue of any
relationship between, or transaction involving, the Sponsors and the
Borrower:
(i) exercise any rights of subrogation or otherwise in relation to any
rights, security or moneys held or received or receivable by any
Secured Party or any other person;
(ii) exercise any right of contribution from the other Sponsor or any
co-surety or any other person liable in respect of such moneys and
liabilities under any other guarantee, security or agreement;
(iii) exercise any right of set-off or counterclaim against the Borrower
or the other Sponsor or any such co-surety or any other person;
(iv) receive, claim or have the benefit of any payment, distribution,
security or indemnity from the Borrower or the other Sponsor or any
such co-surety or any other person; or
(v) unless so directed by the Security Agent (when the Sponsors will
prove in accordance with such directions), claim as a creditor of
the Borrower or the other Sponsor or any such co-surety in
competition with the Security Agent.
The Sponsors shall hold in trust for the Security Agent and forthwith pay
or transfer (as appropriate) to the Security Agent any such payment
(including an amount equal to any such set-off), distribution or benefit
of such security, indemnity or claim received by it.
11.6 SUSPENSE ACCOUNTS
Until all moneys and liabilities hereby agreed to be paid or performed
have been unconditionally and irrevocably paid in full to the satisfaction
of the Security Agent, the Security Agent may at any time keep in a
separate account (without liability to pay interest thereon) for as long
as it may think fit any moneys received, recovered or realised under this
Deed of Guarantee and Undertaking or under any other guarantee, security
or agreement relating in whole or in part to the moneys and liabilities
hereby agreed to be paid and performed without being under any
intermediate obligation to apply the same or any part thereof in or
towards the discharge of such amount.
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12. PAYMENTS
12.1 CURRENCY OF FUNDS
All payments to be made by the Sponsors under this Deed of Guarantee and
Undertaking shall be made:
(i) for value on the due date at such time and in such funds as the
Security Agent may specify to the Sponsors as being customary at the
time for the settlement of transaction in US Dollars in the place
for payment; and
(ii) to such account at such office or bank as the Security Agent may
notify to the Sponsors for this purpose.
12.2 NO SET-OFF OR COUNTERCLAIMS
All amounts due from the Sponsors to the Security Agent under this Deed of
Guarantee and Undertaking shall be paid without any form of set-off,
counterclaim or condition whatsoever. Any amount due from the Sponsors
under this Deed of Guarantee and Undertaking shall not be reduced by any
set-off, counterclaim or other claim which the Sponsors may have against
the Borrower whether under this Deed of Guarantee and Undertaking, any
Project Document, any of the Financing Documents or otherwise.
12.3 UNCONDITIONAL OBLIGATION
Nothing in this Deed of Guarantee and Undertaking, nor any matter, fact,
act, omission, circumstance or thing whatsoever, including without
limitation:
(i) the termination (for any cause) of the Charterparty or of the
Services Rendering Contract or of any other contract or arrangement
for the use or operation of the Rig,
(ii) any change in circumstances or political, economic or financial
conditions,
(iii) the insolvency, dissolution, death, disability or incapacity of any
person whatsoever,
(iv) the breach by any person of any agreement or understanding, or
(v) any of the matters specified in Clause 11.4,
shall operate in any way to affect or minimise, or release the Sponsors
from any of the Sponsors' obligations under, this Deed of Guarantee and
Undertaking, all of which obligations shall subsist in full
notwithstanding any such matter, fact, omission, circumstance or thing.
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13. TAXATION
13.1 WITHHOLDING; GROSS-UP
All payments to be made by or for the account of the Sponsors (or either
of them) hereunder shall be made without set-off or counterclaim and free
and clear of and without deduction for or on account of any present or
future Taxes of any nature whatsoever imposed by or in any country
("APPLICABLE TAX") unless the Sponsors (or either of them) are/is
compelled by law to make payment to, or for the account of, the Borrower
and/or the Security Agent subject to such Applicable Tax. In any such case
the Sponsors (or, as the case may be, the relevant Sponsor) shall promptly
pay such Applicable Tax, and the amount of the relevant payment by the
Sponsors (or, as the case may be, the relevant Sponsor) hereunder shall be
increased to the extent necessary to ensure that the Borrower and/or the
Security Agent actually receives an amount, free and clear of and after
deduction for all such Applicable Tax, equal to the full amount which
would have been received if no such withholding or deduction had been
made. The Sponsors (or, as the case may be, the relevant Sponsor) shall
pay and indemnify and keep indemnified the Borrower and/or the Security
Agent against all such Applicable Tax. The Sponsors (or, as the case may
be, the relevant Sponsor) shall promptly deliver to the Facility Agent
copies of official receipts for Taxes evidencing payment of any such
Applicable Tax imposed as aforesaid. The obligations of the Sponsors (or,
as the case may be, the relevant Sponsor) under this Clause 13 shall
survive the Security Period.
14. REPRESENTATIONS AND WARRANTIES
14.1 REPRESENTATIONS
Each of the Sponsors represents and warrants severally as to itself to
each of the Secured Parties on the date of this Deed of Guarantee and
Undertaking as follows:-
(i) It is a limited liability company duly organised and validly
existing under the laws specified on page 1 of this Deed of
Guarantee and Undertaking, possessing perpetual corporate existence
and the capacity to xxx or be sued in its own name, and each of it
and its Subsidiaries has the power to own its assets and carry on
its business as it is now being conducted.
(ii) It has the power to enter into and perform this Deed of
Guarantee and Undertaking and each of the other Financing
Documents and the Project Documents to which it is a party
and the transactions contemplated hereby and thereby and
has taken all necessary action to authorise the entry into
and performance of this Deed of Guarantee and Undertaking
and each of the other Financing Documents and the Project
Documents to which it is a party and the transactions
contemplated hereby and thereby in accordance with the
terms thereof.
(iii) This Deed and each of the other Financing Documents and the Project
Documents to which it is a party constitute its legal, valid and
binding obligations enforceable in accordance with their respective
terms and are in proper form for the enforcement in all the courts
of the country of incorporation subject in each case to the
qualifications and other matters contained or referred to in the
legal opinions obtained by the Lenders in respect of the relevant
jurisdictions.
-15-
(iv) The entry into and performance of this Deed of Guarantee and
Undertaking and each of the other Financing Documents and Project
Documents to which it is a party and the transactions contemplated
hereby and thereby do not conflict with:
(a) any law or official requirement;
(b) its constitutional documents; or
(c) any agreement or document to which it or any of its
Subsidiaries (if any) is a party or which is binding upon it
or any of its Subsidiaries or any of their respective assets,
and will not result in the creation or imposition of (or
enforcement of) any encumbrance on any of its assets or the
assets of any of its Subsidiaries (if any).
14.2 REPETITION
The representations and warranties set out in this Clause 14 shall survive
the execution of this Deed of Guarantee and Undertaking and the making of
each Advance under the Loan Agreement and shall be deemed to be repeated
on the date of the giving of each Drawing Request, on each Drawdown Date
on each Repayment Date, so long as any amount is or may be outstanding
under the Loan Agreement or any Commitment is in force with reference to
the facts and circumstances then subsisting, as if made at each such time.
15. UNDERTAKINGS
15.1 DURATION
The undertakings in this Clause 15 shall remain in force from and after
the date hereof and throughout the Security Period.
15.2 Accounts
Each of the Sponsors will furnish, or procure that there is furnished, to
the Security Agent, in sufficient copies for each of the Lenders:
(i) as soon as practicable:
(a) (and in any event within 120 days after the close of each
financial year) its audited accounts;
(b) (if prepared) the consolidated (audited, if prepared) accounts
of those of its Subsidiaries (if any) for that year;
(ii) as soon as practicable (and in any event within 45 days after the
end of each financial quarter of each of its financial years):
(a) its unaudited balance sheet as at the end of such
quarter; and
(b) its unaudited statement of income and cash-flow statement for
that quarter;
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15.3 Further general information
Each of the Sponsors shall furnish to the Security Agent promptly such
further information in its possession or control or in the possession and
control of any of its Subsidiaries (if any) regarding its financial
condition and operations and that of its Subsidiaries, as the Security
Agent may reasonably request.
15.4 LITIGATION
Each of the Sponsors shall furnish to the Security Agent details of any
litigation, arbitration or administrative proceedings against it or
concerning the Rig or the Project Documents which are current or, to its
knowledge, threatened or pending, as soon as the same are instituted or so
threatened if the same might have a material adverse effect on the
financial condition of either of the Sponsors or might have a material
effect on either of the Sponsor's respective obligations under the Project
Documents.
15.5 NOTIFICATION OF DEFAULTS
Each of Sponsors shall notify the Security Agent of any Event of Default
or any Potential Event of Default promptly upon becoming aware of its
occurrence.
15.6 CONSENTS
Each of the Sponsors will obtain and promptly renew from time to time, and
will promptly furnish certified copies to the Security Agent of, all
consents as may be required under any applicable law to enable it to
perform its obligations under this Deed of Guarantee and Undertaking and
the other Financing Documents and the Project Documents to which either of
the Sponsors is a party or which are required for the validity or
enforceability thereof, and the Sponsors shall comply with the terms of
the same.
15.7 CONTINUED OWNERSHIP
The Sponsors shall procure that Amethyst Financial Company Limited remains
throughout the Security Period the registered holder and beneficial owner
of the entire issued share capital in the Borrower.
15.8 DISSOLUTION OF THE BORROWER
The Sponsors jointly and severally and unconditionally and irrevocably
undertake and agree with the Security Agent that throughout the Security
Period:
(i) they will not institute and will procure that Amethyst Financial
Company Ltd does not institute any steps for the winding up or
dissolution of the Borrower (or any equivalent process in the
country of incorporation of the Borrower);
-17-
(ii) they will ensure that all votes attaching to any equity share
capital which is legally or beneficially owned by themselves and/or
by either of them and/or by Amethyst Financial Company Ltd or which
is otherwise directly or indirectly under their or its control will
be used to vote against any proposal or resolution for the
winding-up or dissolution of the Borrower.
15.9 ALTERNATIVE CHARTERER
The Sponsors jointly and severally and unconditionally and irrevocably
undertake to the Borrower and as a separate and independent obligation to
the Security Agent that in the event of any termination of the
Charterparty (however arising) during the Security Period the Sponsors
will use their respective best endeavours to procure a new charter for the
Rig with an independent third party approved by the Facility Agent on
arm's length terms no less favourable than the Charterparty and will
procure that the benefit of such new charter and the Borrower's right,
title and interest therein will be assigned to the Security Agent as agent
and trustee for the Lenders by way of security for the Secured
Obligations.
16. CURRENCY INDEMNITY
16.1 CURRENCY INDEMNITY
(i) If, for any reason, any payment due from the Sponsors (or
either of them) under or in connection with this Deed of
Guarantee and Undertaking is made or is satisfied in a
currency (the "OTHER CURRENCY") other than the currency in
which the relevant payment under this Deed of Guarantee and
Undertaking is due (the "CONTRACTUAL CURRENCY"), then to
the extent that the payment (when converted into the
Contractual Currency at the rate of exchange on the date of
payment or, in the case of the liquidation or insolvency of
the Sponsors (or either of them), at the rate of exchange
on the latest date permitted by applicable law for the
determination of liabilities in such liquidation or
insolvency) actually received by the party entitled thereto
falls short of the amount expressed to be due under the
terms of this Deed of Guarantee and Undertaking, the
Sponsors, or (as the case may be) the relevant Sponsor,
shall, as a separate and independent obligation, indemnify
the party entitled thereto and hold such party harmless
against the amount of such shortfall.
(ii) If on any occasion the Contractual Currency so purchased
exceeds the amount payable hereunder in the Contractual
Currency to the party entitled thereto then, subject to the
Sponsors, or (as the case may be) the relevant Sponsor,
having no further obligation, actual or contingent, to such
party under this Agreement, such party shall refund to the
Sponsors, or (as the case may be) the relevant Sponsor, the
excess amount of the Contractual Currency so purchased.
(iii) For the purpose of this Clause "RATE OF EXCHANGE" means the rate at
which the party entitled thereto is able on the relevant date to
purchase the Contractual Currency with the Other Currency and shall
take into account any premium and other costs of exchange.
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16.2 INDEPENDENT OBLIGATIONS
The indemnities in Clause 16.1 shall constitute separate and independent
obligations of the Sponsors from their other respective obligations under
this Deed of Guarantee and Undertaking, shall give rise to a separate and
independent cause of action against the Sponsors or (as the case may be)
the relevant Sponsor and shall apply irrespective of any indulgence
granted by the Secured Parties from time to time.
17. DELEGATION, ASSIGNMENT
17.1 DELEGATION
The Security Agent shall be entitled at any time and as often as may be
expedient to delegate all or any of the powers and discretions vested in
it by the Financing Documents or any of them (including the power vested
in it by virtue of this Clause 17.1) in such manner upon such terms and to
such persons as the Security Agent in its absolute discretion may think
fit.
17.2 ASSIGNMENT
The provisions of Clause 15 of the Loan Agreement shall apply hereto and
(MUTATIS MUTANDIS) be deemed incorporated herein and, accordingly any
Lender may novate and/or assign its rights in respect of this Deed to any
person to whom its Commitments and/or Outstandings are novated or assigned
in accordance with such Clause, and this Deed shall remain in full force
and effect after, and shall continue to secure the Secured Obligations
after and resulting from, any novation or assignment in accordance with
such Clause 15.
17.3 BENEFIT OF THIS DEED
This Deed shall extend to, and enure to the benefit of the Security Agent
and its duly appointed successors and assigns
18. NOTICES, ETC.
18.1 METHOD OF SENDING
Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by facsimile transmission or by telex
or by letter.
18.2 ADDRESSES FOR NOTICES
Any communication or document to be made or delivered by one person to
another pursuant to this Deed of Guarantee and Undertaking shall (unless
the one has by not less than three (3) days' written notice to the other
specified another address) be made or delivered to that other person at
the respective addresses and facsimile numbers set out below.
-19-
(1) The Borrower:-
PETRODRILL SEVEN LIMITED
c/o Petrodrill Engineering NV
K.P. xxx xxx Xxxxxxxxxxx 00
0000 XX Xxxxxxxxx (Brainpark)
The Netherlands
Attention: Xxxxx Assister
Fax No: 00 00 00 000 0000
(2) The Sponsors
PRIDE INTERNATIONAL INC.
0000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx
Xxxxx, XX00 057
USA
Attention: Xxxxxx Xxxxxxx
Fax No: 000 000 000 0000
MARITIMA PETROLEO E ENGENHARIA LTDA
Avenida Almirante Xxxxxxx 52
Group 3400
Rio de Janeiro
Brazil
Attention: Xxxxxx Xxxxxxxxxx
Fax No: 00 00 00 000 0000
(3) The Lenders:-
PETRO DIA THREE S.A.
x/x XXXXXXXXXX XXXXXXXXXXX
0-0 Xxxxxxxxxx 0-xxxxx
Xxxxxxx-xx
Xxxxx
Xxxxx
Attention: General Manager, Ship & Industrial Project Department
Fax No: 00 00 0 0000 0000
-20-
PETRO DIA FOUR S.A.
x/x XXXXXXXXXX XXXXXXXXXXX
0-0 Xxxxxxxxxx 0-xxxxx
Xxxxxxx-xx
Xxxxx
Xxxxx
Attention: General Manager, Ship & Industrial Project Department
Fax No: 00 00 0 0000 0000
(4) The Facility Agent:-
MITSUBISHI CORPORATION (UK) PLC
Bow Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: General Manager, Machinery Department
Fax No: 000 000 0000
(5) The Security Agent:-
MITSUBISHI CORPORATION (UK) PLC
Bow Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: General Manager, Machinery Department
Fax No: 000 000 0000
18.3 DEEMED RECEIPT
Any notice given hereunder shall be deemed to have been received:
(i) If sent by facsimile transmission or by telex, at the opening of
business one (1) Banking Day after the day it was transmitted;
(ii) In the case of a written notice lodged by hand, at the time of
actual delivery; and
(iii) If posted, on the fifth Banking Day following the day on which it
was properly despatched by first class mail postage prepaid.
19. GOVERNING LAW AND JURISDICTION
19.1 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
-21-
19.2 SUBMISSION TO JURISDICTION
Each of the parties hereto irrevocably agrees that the English courts are
to have jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement and/or the other Financing Documents and
that accordingly any suit, action or proceedings ("PROCEEDINGS") arising
out of or in connection with this Agreement and/or the other Financing
Documents may be brought in such courts.
19.3 WAIVER OF OBJECTION
Each of the parties hereto hereby irrevocably waives any objection which
it may have now or hereafter to the laying of the venue of any Proceedings
in any such court as is referred to in Clause 19.2 and any claim that any
such Proceedings have been brought in an inconvenient forum, and further
irrevocably agrees that a judgment in any Proceedings brought in the
English courts shall be conclusive and binding upon the Borrower and may
be enforced in the courts of any other jurisdiction.
19.4 OTHER JURISDICTIONS
Nothing contained in this Clause 19 shall limit the right of any of the
parties hereto to take proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
19.5 SERVICE OF PROCESS
(1) The Borrower irrevocably and unconditionally:
(a) designates, and appoints and empowers Hackwood Secretaries
Limited of Xxx Xxxx Xxxxxx, Xxxxxx XX0X 0XX to receive for it
and on its behalf, service of process issued out of the
English courts in any Proceedings arising out of or in
connection with this Agreement;
(b) agrees to maintain in England a duly appointed process agent
notified to the other parties to this Agreement, for the
purposes of paragraph (a) above;
(c) agrees that failure by any such process agent to give notice
of such process to it shall not impair the validity of such
service or of any judgment based thereon;
(d) consents to the service of process out of any of the said
courts in any such Proceedings by the airmailing of copies,
postage prepaid, to it at its address for the time being
applying for the purposes of Clause 18; and
(e) agrees that nothing herein shall affect the right to serve
process in any other manner permitted by law.
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(2) The Sponsors irrevocably and unconditionally:
(a) designate, and appoint and empower Hackwood Secretaries
Limited of Xxx Xxxx Xxxxxx, Xxxxxx XX0X 0XX to receive for
them and on their behalf, service of process issued out of the
English courts in any Proceedings arising out of or in
connection with this Agreement;
(b) agree to maintain in England a duly appointed process agent
notified to the other parties to this Agreement, for the
purposes of paragraph (a) above;
(c) agree that failure by any such process agent to give notice of
such process to them shall not impair the validity of such
service or of any judgment based thereon;
(d) consent to the service of process out of any of the said
courts in any such Proceedings by the airmailing of copies,
postage prepaid, to them at the address for the time being
applying for the purposes of Clause 18; and
(e) agree that nothing herein shall affect the right to serve
process in any other manner permitted by law.
(3) The Lenders irrevocably and unconditionally:
(a) designate, and appoint and empower Mitsubishi Corporation (UK)
PLC of Bow Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0X 0XX to
receive for them and on their behalf, service of process
issued out of the English courts in any Proceedings arising
out of or in connection with this Agreement;
(b) agree to maintain in England a duly appointed process agent
notified to the other parties to this Agreement, for the
purposes of paragraph (a) above;
(c) agree that failure by any such process agent to give notice of
such process to them shall not impair the validity of such
service or of any judgment based thereon;
(d) consent to the service of process out of any of the said
courts in any such Proceedings by the airmailing of copies,
postage prepaid, to them at the address for the time being
applying for the purposes of Clause 18; and
(e) agree that nothing herein shall affect the right to serve
process in any other manner permitted by law.
20. COUNTERPARTS
This Deed of Guarantee and Undertaking may be executed in any number of
counterparts and by the different parties hereto on different counterparts
and all of such counterparts taken together shall be deemed to constitute
one and the same instrument.
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21. WAIVER; REMEDIES CUMULATIVE
No failure to exercise and no delay in exercising on the part of the
Borrower and/or any of the Secured Parties any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege preclude any other or
further exercise thereof, or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
22. LANGUAGE
Each document referred to herein or to be delivered hereunder (including
financial statements) and each other communication shall be in the English
language.
23. SEVERABILITY
Any provision in this Deed of Guarantee and Undertaking which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS whereof the parties have caused this Deed of Guarantee and
Undertaking to be executed and delivered as a deed the day and year first above
written.
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PETRODRILL )
SEVEN LIMITED acting by )
its duly authorised signatory )
/attorney-in-fact in the presence of:- ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PRIDE )
INTERNATIONAL INC acting by )
its duly authorised signatory/ )
attorney-in-fact in the presence of: ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by MARITIMA )
PETROLEO E ENGENHARIA )
LTDA acting by its duly authorised )
signatory/attorney-in-fact in the )
presence of: ) /s/ Illegible
-24-
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PETRO DIA THREE )
S.A. acting by its duly authorised )
signatory/attorney-in-fact in )
the presence of: ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PETRO DIA FOUR )
S.A. acting by its duly authorised )
signatory/attorney-in-fact in )
the presence of: ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by MITSUBISHI )
CORPORATION (UK) PLC (in its )
capacity as Facility Agent) acting by )
its duly authorised signatory/ )
attorney-in-fact in the presence of: ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by MITSUBISHI )
CORPORATION (UK) PLC (in its )
capacity as Security Agent) acting by )
its duly authorised signatory/ )
attorney-in-fact in the presence of: ) /s/ Illegible
-25-
