EXHIBIT 4.13
DATED 19 DECEMBER 1998
PETRODRILL SIX LIMITED AND OTHERS
as Guarantors
- and -
MITSUBISHI CORPORATION (UK) PLC
as Security Agent
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INTER-COMPANY CROSS GUARANTEE
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F I E L D - F I S H E R - W A T E R H O U S E
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
NUMBER/CLAUSE PAGE
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1. DEFINITIONS AND INTERPRETATION 1
2. JOINT AND SEVERAL GUARANTEE 4
3. CONTINUING SECURITY 4
4. INTEREST 4
5. REPRESENTATIONS AND WARRANTIES 5
6. OPENING OF NEW ACCOUNT 5
7. DEALINGS WITH THE PRINCIPALS AND OTHERS 5
8. DISCHARGE AND RELEASES AVOIDED 6
9. RIGHT TO MAKE DEMAND 7
10. CERTIFICATE 7
11. EFFECT OF PRINCIPAL'S INSOLVENCY 7
12. EFFECT OF OTHER GUARANTEES ETC. 8
13. RESORTING TO OTHER MEANS OF PAYMENT 8
14. NO PROOF IN COMPETITION WITH SECURITY AGENT 8
15. CHANGE IN CONSTITUTION OF PRINCIPALS OR GUARANTOR 9
16. NO SECURITY RECEIVED BY GUARANTORS 9
17. MONEY NOT RECOVERABLE ON FOOTING OF GUARANTEE 9
18. CHANGE IN SECURITY AGENT'S CONSTITUTION OR
AMALGAMATION ETC. 9
19. PAYMENTS BY GUARANTORS 10
20. CURRENCY INDEMNITY 10
21. NO WAIVER OF RIGHTS UNDER GUARANTEE 10
22. SECURITY AGENT 11
23. DEMANDS 11
24. ASSIGNMENT 12
25. GOVERNING LAW AND JURISDICTION 12
26. WAIVER; REMEDIES CUMULATIVE 13
27. SEVERABILITY 14
28. PROPERTY IN THE DEED TO BELONG TO THE SECURITY AGENT 14
THE SCHEDULE 15
SIGNATORIES 15
THIS DEED OF GUARANTEE is made the 19 day of December 1998
BETWEEN
(1) THE SEVERAL COMPANIES whose names and registered offices are specified in
the Schedule below (together called the "COMPANIES" which expression shall
include each or any one or more of them severally); and
(2) MITSUBISHI CORPORATION (UK) PLC, a company incorporated in England and
Wales (Reg No. 2214224), whose registered office is at Bow Bells House,
Bread Street, London EC4M 9BQ in its capacity as security trustee and
agent for the Secured Parties
WHEREAS:
(A) By loan agreement dated the same date as this Deed, and made between
Petrodrill Six, the Lenders, the Facility Agent and the Security Agent,
the Lenders have made available to Petrodrill Six upon the terms and
subject to the conditions thereof, loan facilities in a maximum aggregate
principal amount of US$160,000,000.
(B) By a loan agreement dated the same date as this Deed, and made between
Petrodrill Seven, the Lenders, the Facility Agent and the Security Agent,
the Lenders have made available to Petrodrill Seven, upon the terms and
subject to the conditions whereof, loan facilities in a maximum aggregate
principal amount of US$180,000,000.
(C) It is a condition of the Facilities being available for drawing that
certain conditions (as set out in each of the Loan Agreements) have first
been satisfied and that certain documents (as set out in the Loan
Agreements) have first been delivered.
(D) One of such conditions is a condition that the Security Documents
(including, but not limited to, this Deed), duly executed by the parties
thereto and being in form and substance satisfactory to the Security
Agent, shall have been delivered to the Security Agent.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
In this Deed the following words and expressions shall, except where the
context otherwise requires, have the following meanings:
"AGENTS" means the Facility Agent and the Security Agent and "AGENT" means
either or any of them as the context requires;
"AMETHYST" means Amethyst Financial Company Limited (one of the
Companies);
"BANKING DAY" shall bear the meaning ascribed to it in the Loan
Agreements;
"COMMITMENT" means any Commitment as defined in and for the purpose of
each of the Loan Agreements;
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"FACILITIES" means each of the Facilities as defined in the Petrodrill Six
Loan Agreement or in the Petrodrill Seven Loan Agreement;
"FACILITY AGENT" means Mitsubishi Corporation (UK) PLC in its capacity as
facility agent for the Lenders under each Loan Agreement and includes any
successor facility agent or agents appointed under the Loan Agreements or
either of them;
"FINANCING DOCUMENTS" means the Loan Agreements and the Security Documents
and "FINANCING DOCUMENT" means any of them;
"GUARANTEED OBLIGATIONS" is defined in Clause 2;
"GUARANTOR" means each of the Companies in so far only as it covenants by
this Deed to pay and discharge monies, obligations or liabilities due
owing or incurred by a Company other than itself to the Agents or the
Lenders;
"LENDERS" means each of the Lenders specified in Schedule 1 of the
Petrodrill Six Loan Agreement and in Schedule 1 of the Petrodrill Seven
Loan Agreement and includes their respective successors in title and
transferees under the relevant Loan Agreement;
"LOAN AGREEMENTS" means the Petrodrill Six Loan Agreement and the
Petrodrill Seven Loan Agreement and "LOAN AGREEMENT" means either or both
of them as the context requires;
"OUTSTANDINGS" means any Outstandings as defined in and for the purpose of
each of the Loan Agreements;
"PETRODRILL SIX" means Petrodrill Six Limited, a company incorporated
under the laws of the British Virgin Islands, of Arias Fabrega and Fabrega
Trust Co., BVI Limited, 325 Waterfront Drive, Omar Hodge Building, 2nd
Floor, Wickham's Cay, Road Town, Tortola, British Virgin Islands;
"PETRODRILL SIX LOAN AGREEMENT" means the loan agreement referred to in
Recital (A);
"PETRODRILL SEVEN" means Petrodrill Seven Limited, a company incorporated
under the laws of the British Virgin Islands, of Arias Fabrega and Fabrega
Trust Co., BVI Limited, 325 Waterfront Drive, Omar Hodge Building, 2nd
Floor, Wickham's Cay, Road Town, Tortola, British Virgin Islands;
"PETRODRILL SEVEN LOAN AGREEMENT" means the loan agreement referred to in
Recital (B);
"PRINCIPALS" means the Companies in so far only as any monies, obligations
and liabilities may at any time be due or owing or payable from or by them
under or pursuant to any of the Financing Documents (whether due, owing or
incurred by the relevant person alone or jointly with any other person(s)
and in whatever name form or style and whether as principal or surety)
otherwise than as Guarantors under this Deed;
"SECURED PARTIES" means the Agents and the Lenders;
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"SECURITY AGENT" means Mitsubishi Corporation (UK) PLC, in its capacity as
security trustee and (where applicable hereunder or thereunder) agent for
the Secured Parties under the Security Trust Deed and the other Financing
Documents and includes any successor security trustee and agent appointed
under the terms hereof and thereof;
"SECURITY DOCUMENTS" means the agreements, mortgages, deeds and other
documents specified in Schedule 7 Part 2 of the Petrodrill Six Loan
Agreement and in Schedule 7 Part 2 of the Petrodrill Seven Loan Agreement
and any other documents (including, as the context may require the Loan
Agreements) that may now or hereafter be included in the term "SECURITY
DOCUMENTS" as that term is defined in and for the purpose of each of the
Loan Agreements;
"SECURITY TRUST DEED" shall have the meaning ascribed thereto in each of
the Loan Agreements;
"SHARE CHARGES" means the two deeds of even date herewith, each between
Amethyst and the Security Agent by which Amethyst charged to the Security
Agent the Shares in Petrodrill Six and Petrodrill Seven, respectively; and
"SHARES" means all of the shares in each of Petrodrill Six and Petrodrill
Seven held by Amethyst at the date hereof and such other shares in
Petrodrill Six and Petrodrill Seven of which Amethyst or may at any time
become (whether alone or jointly with any other person) the legal and/or
beneficial owner, and all dividends, interest, payments and other
distributions payable in relation to any of the shares and all stocks,
shares, rights, money or property accruing or offered by way of
redemption, bonus, preference, option, exchange, purchase, substitution or
otherwise to or in respect of any of the shares, all allotments, offers,
rights and benefits whatsoever accruing, offered or arising in respect of
any of the shares and all or any other rights attaching to or exercisable
by virtue of the ownership of any of the shares and all proceeds of any
disposal of any of the shares or of any enforcement of the Share Charges
and any other sum received or receivable in respect of any of the Shares.
1.2 CLAUSE HEADINGS
Clause headings and the table of contents are inserted for convenience of
reference only and will be ignored in the interpretation of this Deed.
1.3 CONSTRUCTION OF CERTAIN REFERENCES
In this Deed, unless the context otherwise requires:
(a) references to Recitals, Clauses and Schedules are to be construed as
references to Clauses and Recitals of and Schedules to, this Deed;
(b) references to this Deed (or to any other document) are to this Deed
(or, as the case may be, to that other document) as from time to
time amended, varied or supplemented;
(c) references to any Act of Parliament or any Section of, Schedule to
or other provision of an Act of Parliament shall be construed, at
any particular time, as including reference to any modification,
extension or re-enactment thereof then in force and instruments,
orders and regulations then in force and made under or deriving
validity from the relevant Act;
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(d) words importing the plural will include the singular and vice versa;
(e) references to persons include companies; and
(f) expressions listed in Clause 1.2 of the Loan Agreements shall, where
used in this Deed, unless the context otherwise requires, be
construed in accordance with Clause 1.2 of the Loan Agreements.
2. JOINT AND SEVERAL GUARANTEE
Each of the Companies unconditionally and irrevocably guarantees to and
undertakes with the Security Agent (as trustee for the Secured Parties)
both severally and also jointly with each of the other Companies that it
will pay and discharge to the Security Agent on demand all monies,
obligations and liabilities of any nature which are now or at any time
hereafter may be or become due or owing by any other Company to any of the
Agents or any of the Lenders under or pursuant to any of the Financing
Documents (including damages for breach thereof) and any other
liabilities, whether actual or contingent, now existing or hereafter
incurred by any other Company to any of the Agents or any of the Lenders
under or pursuant to any of the Financing Documents (whether in any such
case due, owing or incurred by the relevant person alone or jointly with
any other person(s) and in whatever name, form or style and whether as
principal or surety) (except in any such case any monies, obligations and
liabilities, due, owing or incurred by such other Company as Guarantor for
the Company concerned) (all such monies, obligations and liabilities being
referred to herein as the "GUARANTEED OBLIGATIONS") and each Company
undertakes jointly and severally that if any other Company fails for any
reason punctually to perform such of the Guaranteed Obligations or any of
them as it is liable to perform, each Company shall cause every such
payment to be made within five (5) Banking Days of receipt by such Company
of a written demand from the Security Agent as if such Company were itself
expressed in the relevant Financing Document to be the primary obligor
with regard to the relevant Guaranteed Obligations Provided however that
the amounts payable by Amethyst (but without affecting the liabilities of
the other Companies under this Deed) shall be limited to the aggregate of
amounts generated by the Shares including all realisations received by the
Security Agent or by any delegate thereof or receiver, receiver and
manager or administrative receiver or similar person by virtue of any
enforcement of the Share Charges.
3. CONTINUING SECURITY
This Deed shall be a continuing security for all the Guaranteed
Obligations and shall not be discharged by any intermediate discharge or
payment of or on account of any of the Guaranteed Obligations or any of
them or any settlement of accounts between the Security Agent and the
Principals, any other guarantor or any other person. No demand made by or
on behalf of the Security Agent hereunder shall prejudice or restrict the
rights of the Security Agent to make further or other demands.
4. INTEREST
The Guarantors shall pay interest at the relevant rate applicable under
the relevant Financing Document (as well after as before judgment) on any
amount for the time being
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due from the Guarantors to the Security Agent under this Deed from the
date of a valid demand for payment hereunder until actual payment in full.
5. REPRESENTATIONS AND WARRANTIES
Each of the Companies represents and warrants severally as to itself to
as follows:-
(i) It is a limited liability company duly organised and validly
existing under the law of the country where its registered office is
situate as specified against its name in the Schedule, possessing
perpetual corporate existence and the capacity to sue or be sued in
its own name and 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 and the transactions
contemplated hereby and has taken all necessary action to authorise
the entry into and performance of this Deed and the transactions
contemplated hereby in accordance with the terms hereof.
(iii) This Deed constitutes its legal, valid and binding obligations
enforceable in accordance with its terms and is in proper form for
the enforcement in all the courts of the country of incorporation.
(iv) The entry into and performance of this Deed and the transactions
contemplated hereby do not conflict with:
(a) any law or official requirement;
(b) its constitutional documents; or
(c) any agreement or document to which it is a party or which is
binding upon it or any of its assets, and will not result in
the creation or imposition of (or enforcement of) any
encumbrance on any of its assets.
6. OPENING OF NEW ACCOUNT
If for any reason this Deed ceases to be a continuing security, the
Secured Parties may either continue any then existing account or open one
or more fresh accounts for the Principals, but in either case the
obligations of the Guarantors under this Deed shall remain unaffected by,
and be computed without regard to, any payment into or out of any such
account.
7. DEALINGS WITH THE PRINCIPALS AND OTHERS
The obligations of the Guarantors under this Deed and the liabilities of
any other person under the Financing Documents and all security rights and
interests of whatsoever nature created thereby or pursuant thereto
(including, without limitation, those created by or pursuant to each of
the Security Documents) shall not be impaired, discharged or otherwise
affected by any act, omission, matter or thing which, but for this
provision, might operate to release or otherwise exonerate any of the
Guarantors from its obligations hereunder in whole or in part or to
release, discharge, impair or adversely affect any such security rights
and interests, including (without limitation, and whether or not known to
or discoverable by the Guarantors, the Security Agent or any other
person):
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(i) any time or waiver granted to or composition with the Principals 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 Principals
or any other person;
(iii) any legal limitation, disability, incapacity or other circumstances
relating to the Principals or any other person;
(iv) any amendment or supplement to this Deed or any of the other
Financing Documents or any other document or security;
(v) the dissolution, liquidation, amalgamation, reconstruction or
reorganisation of Principals or any other person;
(vi) the unenforceability or invalidity of any obligations of the
Principals or any other person under this Deed or any of the other
Financing Documents or any other document or security;
(vii) the failure of the Security Agent or any other person to take any
other guarantee or security (whether contemporaneous with this Deed)
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 Guarantors hereunder.
8. DISCHARGE AND RELEASES AVOIDED
8.1 No assurance, security or payment which may be avoided or adjusted under
the law, including under any enactment, relating to individual or
corporate insolvency and no release, settlement or discharge given or made
by either of the Agents and/or the Lenders on the faith of any such
assurance, security or payment shall prejudice or affect the right of the
Security Agent to recover all liabilities due and owing under this Deed
from the Guarantors (including any monies which it or the Facility Agent
or the Lenders may be compelled to refund under the provisions of the
Insolvency Act 1986 and any costs payable by it or them or otherwise
incurred in connection therewith) or to enforce the security created by or
pursuant to this Deed to the full extent of the liabilities due and owing
under this Deed.
8.2 In the event of any claim being made or proceedings being taken against
the Security Agent the effect of which, if successful, would be the
avoidance or reduction of any such security or payment and whether or not
any Guarantor shall have been made a party thereto, the Security Agent
shall have absolute discretion to concede or settle the same on such terms
as it may think fit whereupon the preceding sub-Clause shall have effect
as if such concession or settlement had been ordered by the court (without
the possibility of appeal) and the relevant Guarantor shall in addition
pay the Security Agent all costs and expenses (on a full indemnity basis)
arising out of or in connection with any such claim or proceedings.
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8.3 If the Security Agent has reasonable grounds for believing that any
assurance, security or payment received by it from the Principals (or any
of them) or the Guarantors or any other person in respect of the
Guaranteed Obligations may be avoided or adjusted under any law relating
to bankruptcy, insolvency or winding-up then the Security Agent shall be
at liberty to retain the security created by or pursuant to this Deed for
the relevant period (as defined below) after the payment and discharge in
full of all amounts due and owing notwithstanding any release, settlement
discharge or arrangement given or made by the Security Agent on, or as a
consequence of, such payment or termination or liability provided that, if
at any time within the relevant period after such payment or discharge, a
petition shall be presented to a competent court for an order for the
winding-up or the making of an administration order in respect of the
Principals (or any of them) or the Principals (or any of them) shall
commence to be wound-up or to go into administration, or if any analogous
proceedings are taken in respect of the Guarantors or such other person,
the Security Agent shall be at liberty to continue to retain such security
(including the documents aforesaid) for and during such further period as
the Security Agent may determine in which event such security shall be
deemed to have continued to have been held as security for the payment and
discharge to the Security Agent of all amounts due and owing under this
Deed. In this Clause the "RELEVANT PERIOD" means a period of one month
plus any statutory period during which any assurance, security or payment
such as is referred to above may be avoided or invalidated (or such longer
period as the Security Agent shall consider comparable in the light of the
provisions of any applicable law of any jurisdiction).
9. RIGHT TO MAKE DEMAND
If the right to make a demand for payment of any sum from the Principals
has arisen the Security Agent may make a demand under this Deed (i) before
making any demand on the Principals (or any of them) or any other surety
or enforcing any other guarantee or security for the Guaranteed
Obligations and (ii) for the payment of the ultimate balance after
resorting to other means of payment or for the balance due at any time
notwithstanding that the Security Agent has not resorted to other means of
payment.
10. CERTIFICATE
The Security Agent's certificate of the amount of the Guaranteed
Obligations outstanding at any time shall, in the absence of manifest
error, be PRIMA FACIE evidence for all purposes of this Deed as against
the Guarantor.
11. EFFECT OF PRINCIPALS' INSOLVENCY
The bankruptcy, liquidation or insolvency of any of the Principals shall
not affect or determine the liability of the Guarantors under this Deed.
All dividends, compositions and money received by the Security Agent from
any of the Companies or from any other company, person or estate capable
of being applied by the Security Agent in reduction of the indebtedness of
any of the Principals shall be regarded for all purposes as payments in
gross and the Security Agent shall be entitled to prove in the bankruptcy,
liquidation or insolvency of any of the Principals in respect of the whole
of such Principal's indebtedness to the Security Agent and/or the Lenders
and without any right on the part of any of the Guarantors to be
subrogated to the Security Agent in respect of any such proof to the
intent that each of the guarantees contained in this Deed shall apply to
and secure the whole of any ultimate balance which shall remain due to the
Security Agent.
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12. EFFECT OF OTHER GUARANTEES ETC.
This Deed and the rights of the Security Agent under it shall be in
addition to and shall not be in any way prejudiced or affected by any one
or more other securities or guarantees for any of the Principals which the
Security Agent may now or subsequently hold whether from any of the
Guarantors or from any other person.
13. RESORTING TO OTHER MEANS OF PAYMENT
The Security Agent shall be at liberty but not bound to resort for its own
benefit to any other means of payment at any time and in any order it
thinks fit without in consequence diminishing the liability of the
Guarantors and the Security Agent may enforce any of the guarantees
contained in this Deed either for the payment of the ultimate balance or
balances after resorting to other means of payment (including any of such
other guarantees) or for the balance or balances due at any time
notwithstanding that any such other means of payment have not been
resorted to and in each case without entitling the Guarantors to any
benefit from such other means of payment so long as any money remains due
or owing or payable (whether actually or contingently) from or by the
Principals to the Security Agent.
14. NO PROOF IN COMPETITION WITH SECURITY AGENT
Each of the guarantees contained in this Deed shall take effect as a
guarantee of the whole and every part of the Guaranteed Obligations and
accordingly none of the Guarantors shall be entitled as against the
Security Agent to any right of proof in the bankruptcy, liquidation or
insolvency of the Principals or any other surety or other right of a
surety (including any right of contribution from any other surety)
discharging, in whole or in part, its liability for the Guaranteed
Obligations or to share in any security held or money received by the
Security Agent on account of the Guaranteed Obligations or any other
surety or to have or exercise any rights as surety (including any such
right of contribution as stated above) in competition with the Security
Agent unless and until the whole of the Guaranteed Obligations shall have
first been completely discharged and satisfied. Furthermore, until such
money shall have been discharged and satisfied in full none of the
Guarantors shall, if any money shall have become payable or shall have
been paid by any of the Guarantors under any of the guarantees contained
in this Deed, take any step to enforce repayment or to exercise any other
rights, claims or remedies of any kind which may accrue howsoever to any
such Guarantor in respect either of the amount so payable or so paid
(including any such right of contribution as stated above) or of any other
money for the time being due to any such Guarantor from the Principal
concerned or any other surety PROVIDED that in the event of the
bankruptcy, liquidation or insolvency of any of the Principals or any
other surety each of the Guarantors shall, if so directed by the Security
Agent but not otherwise, prove for the whole or any part of the money due
to that Guarantor from such Principal or any other surety as stated above
on terms that the benefit of such proof and of all money to be received by
the Guarantor in respect of it shall be held in trust for the Security
Agent and applied in discharging the obligations of the Guarantor to the
Security Agent under this Deed. For the purposes of enabling the Security
Agent to sue any of the Principals or any other surety or to prove in the
bankruptcy, liquidation or insolvency of any of the Principals or any
other surety for the whole of such money as stated above, or to preserve
intact the liability of any other party, the Security Agent may at any
time place and keep, for such time as it may think prudent, any money
received, or realised on account of the obligations of such Principal or
under any other guarantee or security to the credit, either of such
Guarantor, or such
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other person or transaction (if any) as the Security Agent may think fit,
without any intermediate obligation on the part of the Security Agent to
apply the same or any part of it in or towards the discharge of the
Guaranteed Obligations, or any intermediate right on the part of such
Guarantor to sue such Principal or any other surety or to prove in the
bankruptcy, liquidation or insolvency of such Principal or any other
surety in competition with or so as to diminish any dividend or other
advantage that would or might come to the Security Agent, or to treat the
liability of such Principal or any other surety as diminished.
15. CHANGE IN CONSTITUTION OF PRINCIPALS OR GUARANTOR
Each of the guarantees contained in this Deed shall remain in full force
and effect notwithstanding any change in the constitution of any of the
Principals or any of the Guarantors.
16. NO SECURITY RECEIVED BY GUARANTORS
It is declared by each of the Guarantors that no security has been
received by it from any of the Principals or any other surety for the
giving of the guarantee on its part contained in this Deed and each of the
Guarantors agrees that it will not, so long as such guarantee remains in
force, take any security in respect of its liability under this Deed
without first obtaining the written consent of the Security Agent.
17. MONEY NOT RECOVERABLE ON FOOTING OF GUARANTEE
As a separate and independent stipulation each of the Guarantors agrees,
both severally and also jointly with every other Guarantor, that any of
the Guaranteed Obligations which may not be recoverable on the footing of
a guarantee, whether by reason of any legal limitation, disability or
incapacity on or of any of the Principals or any other fact or
circumstance, and whether known to the Security Agent or any of the
Guarantors or not, shall nevertheless be recoverable from the Guarantors
as though the same had been incurred by the Guarantors and the Guarantors
were jointly and severally liable as sole or principal debtors in respect
of such Guaranteed Obligations and shall be paid by the Guarantors on
demand Provided however that the amounts payable by Amethyst under this
Clause 17 (but without affecting the liabilities of the other Companies
under this clause 17) shall be limited to the aggregate of amounts
generated by the Shares including all realisations received by the
Security Agent or by any delegate thereof or receiver, receiver and
manager or administrative receiver or similar person by virtue of any
enforcement of the Share Charges.
18. CHANGE IN SECURITY AGENT'S CONSTITUTION OR AMALGAMATION ETC.
This Deed shall continue to bind the Guarantors notwithstanding any
amalgamation or merger that may be effected by the Security Agent with any
other company or companies and notwithstanding any reconstruction by the
Security Agent involving the formation of and transfer of the whole or any
part of its undertaking and assets to a new company and notwithstanding
the sale or transfer of the whole or any part of the undertaking and
assets of the Security Agent to another company, whether the company or
companies with which the Security Agent may amalgamate or merge or the
company to which the Security Agent may transfer the whole or any part of
its undertaking and assets either on
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a reconstruction or sale or transfer as stated above shall or shall not
differ from the Security Agent in their or its objects, character or
constitution, it being the intent of each of the Guarantors that the
guarantee on its part contained in this Deed shall remain valid and
effectual in all respects in favour of, against and with reference to, and
that the benefit of the guarantees and all rights conferred upon the
Security Agent by this Deed may be assigned to and enforced by, any such
company or companies and proceeded on in the same manner to all intents
and purposes as if such company or companies had been named in this deed
instead of and/or in addition to the Security Agent.
19. PAYMENTS BY GUARANTORS
Each payment to be made by any of the Guarantors under this Deed shall be
made to the Security Agent, in the appropriate currency in accordance with
the terms and provisions of the relevant Financing Documents, to the
credit of the Security Agent's account with whichever bank or banks
located in the country of such currency, as shall be designated by the
Security Agent regardless of any law, regulation or decree, now or after
this date in effect, which affects or might in any manner affect any of
such terms and provisions or the rights of the Security Agent as against
such Principal. All such payments shall be made in full without set-off or
counterclaim and free and clear of and without deduction of or withholding
for or on account of any tax of any nature now or subsequently imposed by
any country or any subdivision or taxing authority of or in such country
or any federation or organisation of which such country is a member. If
any such payment shall be subject to any such tax or if any of the
Guarantors shall be required to make any such deduction or withholding,
such Guarantor shall pay such tax, shall ensure that such payment,
deduction or withholding will not exceed the minimum legal liability for
it and shall simultaneously pay to the Security Agent such additional
amount as may be necessary to enable the Security Agent to receive, after
all such payments, deductions and withholdings, a net amount equal to the
full amount payable under this Deed. If any of the Guarantors shall make
any such payment, deduction or withholding such Guarantor shall within 30
days forward to the Security Agent an official receipt or other official
documentation evidencing such payment or the payment of such deduction or
withholding. As used in this Clause the term "TAX" includes all levies,
imposts, duties, charges, fees, deductions, withholdings, turnover tax,
transaction tax, stamp tax and any restrictions or conditions result in a
charge.
20. CURRENCY INDEMNITY
It is further agreed by each of the Guarantors, both severally and also
jointly with every other Guarantor, that if any judgment or order is given
or made for the payment of any amount due under this Deed and is expressed
in a currency other than that in which such amount is payable by the
Guarantors under this Deed the Guarantors will indemnify the Security
Agent against any loss incurred as a result of any variation having
occurred in rates of exchange between the date as at which such amount is
converted into such other currency for the purposes of such judgment or
order. This indemnity shall constitute a separate and independent
obligation of the Guarantors and shall apply irrespective of any
indulgence granted to any of the Guarantors from time to time and shall
continue in full force and effect notwithstanding any such judgment or
order as stated above.
21. NO WAIVER OF RIGHTS UNDER GUARANTEE
Each of the Guarantors declares that no delay or omission on the part of
the Security Agent in exercising any right, power, privilege or remedy in
respect of any of the
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guarantees contained in this Deed shall impair such right, power,
privilege or remedy or be construed as a waiver of it nor shall any single
or partial exercise of any such right, power, privilege or remedy preclude
any further exercise of it or the exercise of any other right, power,
privilege or remedy. The rights, powers, privilege and remedies provided
in this Deed are cumulative and not exclusive of any rights, powers,
privileges or remedies provided by law.
22. SECURITY AGENT
The benefit of this Deed (including any sums received by the Security
Agent pursuant to this Deed) shall be held by the Security Agent upon
trust for the benefit of the Secured Parties as security for the
Guaranteed Obligations in such shares and ranking in such order as shall
be from time to time applicable pursuant to any agreement between the
Secured Parties all in accordance with the Security Trust Deed; references
in this Deed to the Security Agent shall be construed accordingly.
23. DEMANDS
23.1 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.
23.2 ADDRESSES FOR NOTICES
Any communication or document to be made or delivered by one person to
another pursuant to this Deed 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 set out
below.
(1) The Security Agent:-
Bow Bells House
Broad Street
London EC4M 9BQ
Attention: General Manager, Machinery Department;
Facsimile: 0171-822 0184
(2) Petrodrill Six:-
Arias Fabrega and Fabrega Trust Co., BVI Limited
325 Waterfront Drive
Omar Hodge Building
2nd Floor, Wickham's Cay
Road Town
Tortola
British Virgin Islands
(3) Petrodrill Seven:-
Arias Fabrega and Fabrega Trust Co., BVI Limited
325 Waterfront Drive
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Omar Hodge Building
2nd Floor, Wickham's Cay
Road Town
Tortola
British Virgin Islands
(4) Amethyst Financial Company Ltd:-
Arias Fabrega and Fabrega Trust Co., BVI Limited
325 Waterfront Drive
Omar Hodge Building
2nd Floor, Wickham's Cay
Road Town
Tortola
British Virgin Islands
23.3 DEEMED RECEIPT
Any notice given hereunder shall be deemed to have been received:
(i) If sent by facsimile transmission , 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.
24. ASSIGNMENT
The provisions of Clause 15 of each of the Loan Agreements shall apply
hereto and (MUTATIS MUTANDIS) be deemed incorporated herein and,
accordingly, any Lender may novate and/or assign 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 Guaranteed Obligations
after and resulting from, any novation or assignment in accordance with
either such Clause 15.
25. GOVERNING LAW AND JURISDICTION
25.1 GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law.
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25.2 SUBMISSION TO JURISDICTION
For the benefit of the Security Agent, each of the Guarantors irrevocably
agrees that the English courts are to have jurisdiction to settle any
disputes which may arise out of or in connection with this Deed and that
accordingly any suit, action or proceedings ("PROCEEDINGS") arising out of
or in connection with this Deed may be brought in such courts.
25.3 WAIVER OF OBJECTION
Each of the Guarantors 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 25.2 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 such Guarantor and may
be enforced in the courts of any other jurisdiction.
25.4 OTHER JURISDICTIONS
Nothing contained in this Clause 25 shall limit the right of the Security
Agent to take proceedings against any Guarantor 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.
25.5 SERVICE OF PROCESS
Each Company irrevocably and unconditionally:
(a) designates, and appoints and empowers Hackwood Secretaries Limited
of One Silk Street, London EC2Y 8HQ 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 Deed;
(b) agrees to maintain in England a duly appointed process agent
notified to the Security Agent, 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 set out in the Schedule; and
(e) agrees that nothing herein shall affect the right to serve process
in any other manner permitted by law.
26. WAIVER; REMEDIES CUMULATIVE
No failure to exercise and no delay in exercising on the part of the
Security Agent 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
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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.
27. SEVERABILITY
Any provision in this Deed 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.
28. PROPERTY IN THE DEED TO BELONG TO THE SECURITY AGENT
The paper on which this Deed is written shall remain at all times the
property of the Security Agent.
IN WITNESS WHEREOF this Deed has been executed the day and year first before
written
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THE SCHEDULE
NAME OF COMPANY REGISTERED OFFICE OF EACH COMPANY
Petrodrill Six Limited Arias Fabrega and Fabrega
Co., BVI Limited
325 Waterfront Drive
Omar Hodge Building
2nd Floor, Wickham's Cay
Road Town
Tortola
British Virgin Islands
Petrodrill Seven Limited Arias Fabrega and Fabrega
Co., BVI Limited
325 Waterfront Drive
Omar Hodge Building
2nd Floor, Wickham's Cay
Road Town
Tortola
British Virgin Islands
Amethyst Financial Arias Fabrega and Fabrega
Company Ltd. Co., BVI Limited
325 Waterfront Drive
Omar Hodge Building
2nd Floor, Wickham's Cay
Road Town
Tortola
British Virgin Islands
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PETRODRILL )
SIX LIMITED by its duly )
authorised signatory/attorney-in- )
fact in the presence of:- ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PETRODRILL )
SEVEN LIMITED by its duly )
authorised signatory/attorney-in- )
fact in the presence of:- ) /s/ Illegible
EXECUTED and DELIVERED )
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as a DEED by AMETHYST ) /s/ Illegible
FINANCIAL COMPANY LTD. )
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 )
by its duly authorised signatory/ )
attorney-in-fact in the presence )
of:- ) /s/ Illegible
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