Exhibit 10.4
Dated 27 May 2022
EMERALD DRILLER COMPANY
VANTAGE DRILLER III CO
VANTAGE DRILLING INTERNATIONAL
FORM OF SUPPORT SERVICES AGREEMENT
Wikborg Rein LLP 30 Cannon Street London
EC4M 6XH
TABLE OF CONTENTS
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This SUPPORT SERVICES AGREEMENT (this "Agreement") is made and entered into on 27 May 2022 (the "Contract Date"). If the Effective Date has not already occurred, other than the Contract Date Provisions which are effective as from the Contract Date, this Agreement shall become effective when and if the Effective Date occurs. If the Effective Date has already occurred, this Agreement is effective as from the Contract Date.
BETWEEN:
The Owner and VD3 are hereinafter referred to individually as a "Party" and collectively as the "Parties".
WHEREAS:
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter provided,
IT IS HEREBY AGREED between the Parties as follows:
"Affiliate" with respect to any Person, means any other Person which Controls, is Controlled by, or is under common Control with, such first Person, and "Affiliates" means all of them.
"Agreement" has the meaning given in the preamble.
"Applicable ABAC Laws" means all Applicable Laws applying to the Owner or VD3 prohibiting bribery, money laundering and other related forms of corruption, including fraud, tax evasion, insider dealing and market manipulation.
"Applicable Laws" means any and all laws or regulations, codes, ordinances, regulatory policies, treaties conventions, decrees, orders, permits, licenses, authorisations, directives, judgements and policies made or assumed by any competent legislative, executive,
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administrative or judicial authority, having or purporting to have jurisdiction over VD3 or the Owner under this Agreement, or relating to the ownership, lease, use, maintenance, custody, operation or possession of the Drilling Unit.
"Board of Directors" means the Board of Directors or similar governing body of the Owner, including the manager or board of managers of the Owner, as applicable.
"Business Day" means a day (excluding Saturdays, Sundays and public holidays) on which banks are ordinarily open for business in New York, New York, U.S.A., Dubai, U.A.E., Cairo, Egypt and (for the purposes of Clauses 15.2 and (in respect of service upon VD3) , the place of incorporation of VD3).
"CEO" has the meaning given in Clause 14.2.
"Client" means North Oil Company or successor or permitted assign under the Drilling Contract. "Commencement Date" means the later to occur of the Contract Date and the Effective Date.
"Confidential Information" means all information, whether written, electronic or oral, together with all analyses or other documents prepared by a Party or its Representatives, which contain or otherwise reflect or are generated from such information (together with any notes, documents, files, data, analyses, summaries or other materials prepared by a Party to the extent based upon or reflecting such information), which is disclosed by, or on behalf of, a Party or any member of its Group (the "Disclosing Party") to another Party or any member of its Group (the "Receiving Party") in connection with this Agreement, the Services or the Drilling Unit or any of the transactions contemplated by this Agreement. For the avoidance of doubt, all (i) documents, computer programs and models provided by either Party in connection with the Drilling Unit or the provision of the Services, (including, without limitation, with respect to VD3, the Procedures) and all copies of such items and (ii) documents, data, results, calculations, drawings, sketches, equipment, reports and similar items or documents which are developed solely for the provision of the Services shall constitute "Confidential Information".
"Contract Date" has the meaning given in the preamble.
"Contract Date Provisions" means Clauses 9.1(g), 9.2(f), 13, 14, 15, 16, 17, 18, 20, 22, 24 and
26.
"Control" means the ability, directly or indirectly, to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise (and "Controls" and "Controlled" shall be interpreted accordingly).
"Crew" means the Drilling Unit's crew.
"Crew Insurances" means insurance of liabilities in respect of Crew risks which shall include death, permanent disability, sickness, injury, repatriation, shipwreck unemployment indemnity and loss of personal effects.
"Disclosing Party" has the meaning given in the definition of "Confidential Information" in this Clause 1.1.
"Dispute" has the meaning given in Clause 14.2.
"Drilling Contract" means drilling contract no. [________].
.
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"Drilling Unit" has the meaning given in Recital (A).
"Effective Date" means the time and date of Closing (as defined in the SPA). "Force Majeure Event" has the meaning given in Clause 12.1.
"Good Oilfield Practice" means the standards which are generally accepted in the industry for reputable, prudent and experienced international offshore drilling contractors and which are consistent with the Drilling Contract.
"Group" means the Owner's Group or VD3's Group, or either of them, as the context requires. "Indemnified Party" has the meaning given in Clause 5.3.
"Indemnifying Party" has the meaning given in Clause 5.3.
"Insurances" has the meaning given in Clause 7.
"LCIA" has the meaning given in Clause 14.3. "Losses" has the meaning given in Clause 8.1.
"Management Fee" has the meaning given in Clause 6.1(a).
"Management Standard" means such reasonable care and diligence at all times in the provision of the Services as is customary for prudent, reputable and experienced managers in the international offshore drilling industry and which is consistent with the Drilling Contract.
"Management System" means all of the applicable systems, software and policies and procedures of VD3 relevant to the performance of the Services, including but not limited to those currently being used by VD3 and/or the Owner (including but not limited to SAP procurement and finance modules and other systems and software in respect of safety, operations, procurement and Applicable ABAC Laws).
"Owner" has the meaning given in the preamble. "Owner's Group" means the Owner and its Affiliates.
"Person" means any individual, firm, corporation, stock company, limited liability company, trust, partnership, limited liability partnership, association, joint venture or business, whether or not having legal personality.
"Procedures" has the meaning set out in Clause 5.4. "Proceedings" has the meaning set out in Clause 8.1. "Providing Party" has the meaning set out in Clause 5.3.
"Receiving Party" has the meaning given in the definition of "Confidential Information" in this Clause 1.1.
"Regardless of Cause" means without regard to cause and notwithstanding any breach of contract (including repudiatory breach), tort (including negligence of any degree or character), misrepresentation (other than fraudulent misrepresentation), fault or breach of duty (whether
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statutory or otherwise), breach of any applicable laws, permits or governmental requirement, or any other ground for liability, on the part of the Party or Person seeking indemnity (or exclusion or limitation of liability, as the case may be) or on the part of any other Person, and, in each case, to the fullest extent permitted by English law and without regard to any right of limitation or exclusion of liability pursuant to the laws of any state or country or the provisions of any international convention or any other body having jurisdiction over the Party or Person seeking indemnity; provided that "Regardless of Cause" shall never include Wilful Misconduct of the Person seeking indemnity (or exclusion or limitation of liability, as the case may be).
"Reimbursable Costs" means any costs (third party or otherwise) that are pre-approved by the Owner in writing for reimbursement to VD3 by the Owner.
"Representative" or "Representatives" means, with respect to either Party, the directors, officers, employees, agents, accountants, consultants, attorneys and advisors of such Party or any member of its Group; provided that "Representative", with respect to the Owner, shall never be deemed to include a Representative of VD3 and "Representative", with respect to VD3, shall never be deemed to include a Representative of the Owner.
"Rules" has the meaning given in Clause 14.3.
"Sanctions" means any embargo, sectoral sanctions, economic or trade sanctions or restrictive measures enacted, administered, imposed or enforced by any Sanctions Authority.
"Sanctions Authority" means the U.S. Department of the Treasury's Office of Foreign Assets Control, the U.S. Department of State, Her Majesty's Treasury, the United Nations Security Council or the European Union.
"Services" means the services to be provided by VD3 to the Owner pursuant to this Agreement, as more particularly set out in Appendix 1, together with such other services as the Owner and VD3 may agree from time to time. Notwithstanding any other provision of this Agreement, legal entity management (for example, corporate filings, corporate finance and treasury and other legal entity specific support) is excluded from the scope of the Services.
"SPA" means the share purchase agreement between Vantage Holdings International (as seller) and ADES International Holdings Ltd (as buyer).
"Term" has the meaning given in Clause 2.
"Termination Date" means the date on which any termination of this Agreement takes effect. "Third Party" means any Person which is not part of VD3's Group or the Owner's Group. "VD3 Group" means VD3 and its Affiliates.
"VD3 Parent" means the Guarantor. "Wilful Misconduct" means:
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"Year" means a period of three hundred and sixty-five (365) calendar days.
With the exception of the Contract Date Provisions, which shall be effective from and after the Contract Date, this Agreement shall come into effect on the later of the Contract Date and the Effective Date and shall continue in full force and effect until the earlier of the Termination Date and the end of the last day of the third Year after the Commencement Date (such period being the "Term").
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any member of VD3's Group but shall, so far as practicable, ensure a fair distribution of services to all such vessels and companies from time to time under its management; and
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8.3 to the extent practicable).
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Misconduct of VD3 or any member, Representative or subcontractor of VD3's Group; or (c) any all taxes, including but not limited to withholding taxes, assessments, levies, imposts and/or duties and non-refundable VAT, by whatsoever name assessed upon VD3's Group (and any Representative or subcontractor of VD3's Group) arising out of this Agreement (and which are not the express responsibility of the Owner under this Agreement), the Owner hereby undertakes to keep each member of VD3's Group indemnified and to hold them harmless against all Proceedings which may be brought against them or incurred or suffered by them arising out of this Agreement (save as specified), and against and in respect of all Losses which any member of VD3's Group may suffer or incur (either directly or indirectly) in the course of the performance of this Agreement (but for the avoidance of doubt excluding the cost of complying with obligations arising out of this Agreement, any normal overhead or operating expenses of any member of the VD3 Group and any Losses that would have been incurred even if this Agreement had not been entered into).
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accrued on or prior to the termination of this Agreement. The Parties further agree that any termination of this Agreement is not intended to effect any transfer (whether automatic or otherwise) of any employees of any member VD3's Group to any member of the Owner's Group and for these purposes VD3 shall ensure that no employee of VD3's Group shall be part of an organised grouping of employees which has as its principal purpose the carrying out of the Services.
Prior to any sale of, and in connection with any proposal to sell, the Drilling Unit by the Owner after the Commencement Date and during the Term, the Owner shall provide VD3 with reasonable notice of the proposed sale.
The Owner and VD3 both agree to comply with the provisions of any Applicable Laws regarding anti-corruption or anti-bribery Applicable Laws, including the Foreign Corrupt Practices Act of the United States of America and the UK Bribery Act 2010. VD3 and the Owner agree that no portion of the payments, fees or commissions earned by either of them under, as the case may be, this Agreement or any Drilling Contract will be knowingly transferred to any official of any governmental authority in violation of any Applicable Laws.
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Emerald Driller Company
c/o Advanced Energy Services Unit 517, Level 5, Index Tower, DIFC, PO Box 507118, Dubai,
UAE
Email: [______________]
With a copy to (which shall not constitute notice): [__________________]; and
Hill Dickinson LLP
8th Floor, The Broadgate Tower
20 Primrose Street, London EC2A 2EW, United Kingdom
Attention: [____________]
Email: [ ]
Vantage Driller III Co.
c/o Vantage Energy Services, Inc. 777 Post Oak Boulevard
Suite 440
Houston, TX 77056 USA Attention: [______]
Email: [________]
With a copy to (which shall not constitute notice):
Wikborg Rein LLP 30 Cannon Street London EC4M 6XH United Kingdom
Attention: [_________]
Email: [_________]
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or to such other address as the relevant Party may from time to time designate by notice in writing in accordance with this Clause 15.
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courts or pursuant to legal process, or to such Party's or its Affiliates' professional consultants, advisors, auditors or accountants;
provided that the Receiving Party shall exercise due diligence to ensure that no such Person in Clauses 22.2(c)(ii), (iii) and (iv) shall disclose Confidential Information to any unauthorised Person.
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IN WITNESS OF WHICH each of the Parties has caused this Agreement to be duly executed on its behalf on the Contract Date.
SIGNED for and on behalf of EMERALD DRILLER COMPANY
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By
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lhab Toma
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its duly authorized representative in the presence of: Witness:
Name: Position:
SIGNED for and on behalf of VANTAGE DRILLER III CO.
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By
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lhab Toma
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its duly authorized representative in the presence of: Witness:
Name: Position:
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22/23
SIGNED for and on behalf of VANTAGE DRILLING INTERNATIONAL
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By
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lhab Toma
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its duly authorized representative in the presence of: Witness:
Name: Position:
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23/23
APPENDIX 1 THE SERVICES
VD3 shall act in accordance with the Management Standard to provide the following (if applicable for the relevant Year – as indicated below) in the relevant Year during the Term:
Category | Service | First Year starting on the Commencement Date | Second Year after the Commencement Date | Third Year after the Commencement Date |
Management System | Provision of the Management System. | YES | YES | YES |
Drilling Contract Support | Support of Drilling Contract by personnel* in all Vantage corporate offices (currently in Houston, Singapore and Dubai). | Full access to Vantage's corporate offices (currently in Houston, Singapore and Dubai). | Full access to Vantage's corporate offices (currently in Houston, Singapore and Dubai), other than the human resource and supply chain departments. | Full access to Vantage's corporate offices (currently in Houston, Singapore and Dubai) for operational support department only. |
*Including only reasonable time of the personnel working in the relevant departments listed above.
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