☐
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☒
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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☐
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☐
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of Each Class
|
Trading Symbol
|
Name of Each Exchange on Which Registered
|
||
Common shares of par value $0.05 per share
|
BORR
|
The New York Stock Exchange
|
Large accelerated filer ☐
|
Accelerated filer ☐
|
Non-accelerated filer ☒
|
Emerging growth company ☒
|
U.S. GAAP ☒
|
International Financial Reporting Standards as issued by the International Accounting Standards Board ☐
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Other ☐
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PART I
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7
|
|
ITEM 1.
|
7
|
A.
|
7
|
||
B.
|
7
|
||
C.
|
7
|
ITEM 2.
|
7
|
|
ITEM 3.
|
8
|
A.
|
8
|
||
B.
|
10
|
||
C.
|
10
|
||
D.
|
10 |
ITEM 4.
|
44
|
A.
|
44
|
||
B.
|
44
|
||
C.
|
61
|
||
D.
|
62
|
ITEM 4A.
|
62
|
|
ITEM 5.
|
63
|
A.
|
73 | ||
B.
|
75 | ||
C.
|
82
|
||
D.
|
82
|
||
E.
|
83
|
||
F.
|
83
|
||
G.
|
83
|
ITEM 6.
|
83 |
A.
|
83 | ||
B.
|
86
|
||
C.
|
86 | ||
D.
|
88
|
||
E.
|
88
|
ITEM 7.
|
90 |
A.
|
90 | ||
B.
|
90
|
||
C.
|
93
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ITEM 8.
|
94
|
A.
|
94
|
||
B.
|
94
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ITEM 9.
|
95
|
A.
|
95
|
||
B.
|
95
|
||
C.
|
95
|
||
D.
|
95
|
||
E.
|
95
|
||
F.
|
95
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ITEM 10.
|
96
|
A.
|
96
|
||
B.
|
96
|
||
C.
|
100
|
||
D.
|
100 | ||
E.
|
101
|
||
F.
|
104
|
||
G.
|
104 | ||
H.
|
104 | ||
I.
|
105
|
ITEM 11.
|
106
|
|
ITEM 12.
|
107
|
A.
|
107
|
||
B.
|
107
|
||
C.
|
107
|
||
D.
|
107
|
PART II
|
108
|
|
ITEM 13.
|
108
|
|
ITEM 14.
|
108
|
|
ITEM 15.
|
108
|
|
ITEM 16.
|
109
|
|
ITEM 16A.
|
109
|
|
ITEM 16B.
|
109
|
|
ITEM 16C.
|
109
|
|
ITEM 16D.
|
110
|
|
ITEM 16E.
|
110
|
|
ITEM 16F.
|
110
|
|
ITEM 16G.
|
111
|
|
ITEM 16H.
|
111
|
|
PART III
|
112
|
|
ITEM 17.
|
112
|
|
ITEM 18.
|
112
|
|
ITEM 19.
|
112
|
ITEM 1. |
A. |
B. |
C. |
ITEM 2. |
ITEM 3. |
A. |
For the Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
(in $ millions, except per share data)
|
||||||||||||
SELECTED CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
|
||||||||||||
Total operating revenues
|
$
|
334.1
|
$
|
164.9
|
$
|
0.1
|
||||||
Gain from bargain purchase
|
-
|
38.1
|
-
|
|||||||||
Gain on disposal
|
6.4
|
18.8
|
-
|
|||||||||
Operating expenses
|
(491.3
|
)
|
(353.2
|
)
|
(109.8
|
)
|
||||||
Operating loss
|
$
|
(150.8
|
)
|
$
|
(131.4
|
)
|
$
|
(109.7
|
)
|
|||
Loss from equity method investments
|
(9.0
|
)
|
-
|
-
|
||||||||
Total financial income (expenses), net
|
(128.1
|
)
|
(57.0
|
)
|
21.7
|
|||||||
Income tax expense
|
(11.2
|
)
|
(2.5
|
)
|
-
|
|||||||
Net loss
|
$
|
(299.1
|
)
|
$
|
(190.9
|
)
|
$
|
(88.0
|
)
|
|||
Other comprehensive gain (loss)
|
5.6
|
0.6
|
(6.2
|
)
|
||||||||
Total comprehensive loss
|
$
|
(293.5
|
)
|
$
|
(190.3
|
)
|
$
|
(94.2
|
)
|
|||
Net loss per common share:
|
||||||||||||
Basic
|
(2.78
|
)
|
(1.85
|
)
|
(1.70
|
)
|
||||||
Diluted
|
(2.78
|
)
|
(1.85
|
)
|
(1.70
|
)
|
||||||
Common shares outstanding
|
110,818,351
|
105,068,351
|
95,264,500
|
|||||||||
Weighted average common shares outstanding
|
107,478,625
|
102,877,501
|
51,726,288
|
As of December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
(in $ millions)
|
||||||||||||
SELECTED BALANCE SHEET DATA:
|
||||||||||||
Cash and cash equivalents
|
59.1
|
27.9
|
164.0
|
|||||||||
Other current assets, including restricted cash
|
218.8
|
180.7
|
61.5
|
|||||||||
Jack-up drilling rigs
|
2,683.3
|
2,278.1
|
783.3
|
|||||||||
Newbuildings
|
261.4
|
361.8
|
642.7
|
|||||||||
Other long-term assets
|
57.4
|
65.2
|
20.7
|
|||||||||
Total Assets
|
$
|
3,280.0
|
$
|
2,913.7
|
$
|
1,672.3
|
||||||
Trade accounts payables
|
14.1
|
9.6
|
9.6
|
|||||||||
Accruals and other current liabilities
|
235.6
|
106.5
|
11.5
|
|||||||||
Long-term debt (including current portion)
|
1,709.8
|
1,174.6
|
87.0
|
|||||||||
Other liabilities
|
26.4
|
89.5
|
71.3
|
As of December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
(in $ millions)
|
||||||||||||
Total Liabilities
|
$
|
1,985.9
|
$
|
1,380.2
|
$
|
179.4
|
||||||
Total Equity
|
$
|
1,294.1
|
$
|
1,533.5
|
$
|
1,492.9
|
For the Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
(in $ millions)
|
||||||||||||
CASH FLOW DATA:
|
||||||||||||
Net cash used in operating activities
|
$
|
(89.0
|
)
|
$
|
(135.2
|
)
|
$
|
(184.8
|
)
|
|||
Net cash used in investing activities
|
(271.1
|
)
|
(560.1
|
)
|
(1,256.5
|
)
|
||||||
Net cash provided by financing activities
|
397.3
|
583.5
|
1,506.3
|
For the Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
OTHER FINANCIAL AND OPERATIONAL DATA:
|
||||||||||||
Adjusted EBITDA(1) (in $ millions)
|
$
|
(2.6
|
)
|
$
|
(55.3
|
)
|
$
|
(61.8
|
)
|
|||
Total Contract Backlog(2) (in $ millions)
|
308.5
|
377.5
|
28.5
|
|||||||||
Technical Utilization(3) (in %)
|
99.0
|
99.3
|
-
|
|||||||||
Economic Utilization(4) (in %)
|
95.9
|
97.9
|
-
|
|||||||||
TRIF(5)(number of incidents)
|
2.12
|
1.54
|
-
|
|
For the Year Ended December 31,
|
|||||||||||
|
2019
|
2018
|
2017
|
|||||||||
|
(in $ millions)
|
|||||||||||
Net loss
|
$
|
(299.1
|
)
|
$
|
(190.9
|
)
|
$
|
(88.0
|
)
|
|||
Depreciation and impairment of non-current assets
|
112.8
|
79.5
|
47.9
|
|||||||||
Amortization of acquired contract backlog*
|
20.2
|
24.2
|
—
|
|||||||||
Interest income
|
(1.5
|
)
|
(1.2
|
)
|
(3.2
|
)
|
||||||
Interest capitalized to newbuildings
|
(18.5
|
)
|
(23.4
|
)
|
—
|
|||||||
Foreign exchange (gain) loss, net
|
(0.7
|
)
|
1.1
|
0.3
|
||||||||
Other financial expenses
|
30.2
|
3.5
|
—
|
|||||||||
Interest expense, gross
|
88.9
|
37.1
|
0.5
|
|||||||||
Change in unrealized loss on call spread transactions
|
0.5
|
25.7
|
-
|
|||||||||
Loss (gain) on forward contracts
|
29.2
|
14.2
|
(19.3
|
)
|
||||||||
Gain from bargain purchase
|
-
|
(38.1
|
)
|
-
|
||||||||
Loss from equity method investments
|
9.0
|
-
|
-
|
|||||||||
Amortized mobilization cost
|
22.6
|
12.1
|
-
|
|||||||||
Amortized mobilization revenue
|
(7.4
|
)
|
(1.6
|
)
|
-
|
|||||||
Income tax expense
|
11.2
|
2.5
|
-
|
|||||||||
Adjusted EBITDA
|
$
|
(2.6
|
)
|
$
|
(55.3
|
)
|
$
|
(61.8
|
)
|
B. |
C. |
D. |
|
• |
regional and global economic conditions and changes therein;
|
|
• |
oil and natural gas supply and demand;
|
|
• |
expectations regarding future energy prices;
|
|
• |
the ability of OPEC to reach further agreements to set and maintain production levels and pricing and to implement existing and future agreements;
|
|
• |
the level of production by non-OPEC countries;
|
|
• |
capital allocation decisions by our customers, including the relative economics of offshore development versus onshore prospects;
|
|
• |
tax policy;
|
|
• |
the occurrence or threat of epidemic or pandemic diseases and any government response to such occurrence or threat, specifically, the current implications of, and future expectations in relation to, COVID-19 on global economic activity and
therefore oil prices, cross border trade restrictions, employees’ ability to, and willingness to, work, oil supply and demand, and resource owners ability to deliver future projects;
|
|
• |
advances in exploration and development technology;
|
|
• |
costs associated with exploring for, developing, producing and delivering oil and natural gas;
|
|
• |
the rate of discovery of new oil and gas reserves and the rate of decline of existing oil and gas reserves;
|
|
• |
trade policies and sanctions imposed on oil-producing countries or the lifting of such sanctions;
|
|
• |
laws and government regulations that limit, restrict or prohibit exploration and development of oil and natural gas in various jurisdictions, or materially increase the cost of such exploration and development;
|
|
• |
the further development or success of shale technology to exploit oil and gas reserves;
|
|
• |
available pipeline and other oil and gas transportation capacity;
|
|
• |
the development and exploitation of alternative fuels;
|
|
• |
laws and regulations relating to environmental matters, including those addressing alternative energy sources and the risks of global climate change;
|
|
• |
changes in tax laws, regulations and policies;
|
|
• |
merger, acquisition and divestiture activity among exploration and production companies (“E&P Companies”);
|
|
• |
the availability of, and access to, suitable locations from which our customers can explore and produce hydrocarbons;
|
|
• |
activities by non-governmental organizations to restrict the exploration, development and production of oil and gas in light of environmental considerations;
|
|
• |
disruption to exploration and development activities due to hurricanes and other severe weather conditions and the risk thereof;
|
|
• |
natural disasters or incidents resulting from operating hazards inherent in offshore drilling, such as oil spills;
|
|
• |
the worldwide social and political environment, including uncertainty or instability resulting from changes in political leadership and environmental policies, changes in geopolitical-social views toward fossil fuels and renewable energy
and changes in investors’ expectations regarding environmental, social and governance matters; and
|
|
• |
the worldwide military and political environment, including uncertainty or instability resulting from an escalation or additional outbreak of armed hostilities or other crises in oil or natural gas producing areas of the Middle East or
geographic areas in which we operate, or acts of terrorism.
|
|
• |
the general economic and market conditions affecting the offshore contract drilling industry, including competition from other offshore contract drilling companies;
|
|
• |
the impact of the COVID-19 crisis on the global economy and related impact on oil prices and demand in the shall-water offshore drilling market, as well as the impact of the crisis on our ability to operate rigs;
|
|
• |
the types, sizes and ages of our jack-up rigs;
|
|
• |
the supply and demand for our jack-up rigs;
|
|
• |
the costs of newbuild jack-up rigs;
|
|
• |
prevailing drilling services contract dayrates;
|
|
• |
government or other regulations; and
|
|
• |
technological advances.
|
|
• |
terrorist acts;
|
|
• |
armed hostilities, war and civil disturbances;
|
|
• |
acts of piracy, which have historically affected marine assets;
|
|
• |
significant governmental influence over many aspects of local economies;
|
|
• |
the seizure, nationalization or expropriation of property or equipment;
|
|
• |
uncertainty of outcome in court proceedings in any jurisdiction where we may be subject to claims;
|
|
• |
the repudiation, nullification, modification or renegotiation of contracts;
|
|
• |
limitations on insurance coverage, such as war risk coverage, in certain areas;
|
|
• |
political unrest;
|
|
• |
the occurrence or threat of epidemic or pandemic diseases or any governmental or industry response to such occurrence or threat, which could impact demand and our ability to conduct operations;
|
|
• |
monetary policy and foreign currency fluctuations and devaluations;
|
|
• |
an inability to repatriate income or capital;
|
|
• |
complications associated with repairing and replacing equipment in remote locations;
|
|
• |
import-export quotas, wage and price controls, and the imposition of trade barriers;
|
|
• |
imposition of, or changes in, local content laws and their enforcement, particularly in West Africa and Southeast Asia, where the legislatures are active in developing new legislation;
|
|
• |
sanctions or trade embargoes;
|
|
• |
compliance with various jurisdictional regulatory or financial requirements;
|
|
• |
compliance with and changes to tax laws and interpretations;
|
|
• |
other forms of government regulation and economic conditions that are beyond our control; and
|
|
• |
government corruption.
|
|
• |
$270 million drawn on our Syndicated Facility (which includes utilization of the $70 million facility for guarantees)
|
|
• |
$25 million drawn on our New Bridge Facility,
|
|
• |
$195 million drawn on our Hayfin Facility,
|
|
• |
$839.7 million outstanding to shipyards under delivery financing arrangements, and
|
|
• |
$350 million outstanding under our Convertible Bonds.
|
|
• |
normal recurring operating expenses;
|
|
• |
planned and discretionary capital expenditures; and
|
|
• |
repayment of debt and interest.
|
|
• |
the United Nation’s International Maritime Organization, or the “IMO,” International Convention for the Prevention of Pollution from Ships of 1973, as from time to time amended, or “MARPOL,” including the designation of Emission Control
Areas, or “ECAs” thereunder;
|
|
• |
the IMO International Convention on Civil Liability for Oil Pollution Damage of 1969, as from time to time amended, or the “CLC”;
|
|
• |
the International Convention on Civil Liability for Bunker Oil Pollution Damage, or the “Bunker Convention”;
|
|
• |
the International Convention for the Safety of Life at Sea of 1974, as from time to time amended, or “SOLAS”;
|
|
• |
the IMO International Convention on Load Lines, 1966, as from time to time amended;
|
|
• |
the International Convention for the Control and Management of Ships’ Ballast Water and Sediments in February 2004, or the “BWM Convention”;
|
|
• |
the U.S. Oil Pollution Act of 1990, or the “OPA”;
|
|
• |
requirements of the U.S. Coast Guard;
|
|
• |
requirements of the U.S. Environmental Protection Agency, or the “EPA”;
|
|
• |
the U.S. Comprehensive Environmental Response, Compensation and Liability Act, or “CERCLA”;
|
|
• |
the U.S. Maritime Transportation Security Act of 2002, or the “MTSA”;
|
|
• |
the U.S. Outer Continental Shelf Lands Act, or the “OCSLA”;
|
|
• |
the Code for the Construction and Equipment of Mobile Offshore Drilling Units, 2009, or the “MODU Code 2009”;
|
|
• |
the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, or the “Basel Convention”;
|
|
• |
the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, or the “Hong Kong Convention”; and
|
|
• |
certain regulations of the European Union, including Regulation (EC) No 1013/2006 on Shipments of Waste and Regulation (E.U.) No 1257/2013 on Ship Recycling.
|
|
• |
the equipping and operation of drilling rigs;
|
|
• |
exchange rates or exchange controls;
|
|
• |
oil and gas exploration and development;
|
|
• |
the taxation of earnings;
|
|
• |
the environment and climate change;
|
|
• |
the taxation of the earnings of expatriate personnel; and
|
|
• |
the use and compensation of local employees and suppliers by foreign contractors.
|
|
• |
our operating and financial performance;
|
|
• |
quarterly variations in the rate of growth of our financial indicators, such as net income per share, net income and revenues;
|
|
• |
the public reaction to our press releases, our other public announcements and our filings with the SEC;
|
|
• |
strategic actions by our competitors;
|
|
• |
our failure to meet revenue or earnings estimates by research analysts or other investors;
|
|
• |
changes in revenue or earnings estimates, or changes in recommendations or withdrawal of research coverage, by equity research analysts;
|
|
• |
speculation in the press or investment community;
|
|
• |
the failure of research analysts to cover our Shares;
|
|
• |
sales of our Shares by us or shareholders, or the perception that such sales may occur;
|
|
• |
changes in accounting principles, policies, guidance, interpretations or standards;
|
|
• |
additions or departures of key management personnel;
|
|
• |
actions by our shareholders;
|
|
• |
general market conditions, including fluctuations in oil and gas prices;
|
|
• |
domestic and international economic, legal and regulatory factors unrelated to our performance; and
|
|
• |
the realization of any risks described in this section “Item 3.D Risk Factors.”
|
ITEM 4. |
INFORMATION ON THE COMPANY
|
A. |
B. |
|
As of and For the Year Ended
December 31,
|
|||||||||||
|
2019
|
2018
|
2017
|
|||||||||
Total Fleet as of January 1
|
27
|
13
|
0
|
|||||||||
Jack-up Rigs Acquired(1)
|
1
|
23
|
12
|
|||||||||
Newbuild Jack-up Rigs Delivered from Shipyards
|
2
|
9
|
1
|
|||||||||
Jack-up Rigs Disposed of
|
2
|
18
|
0
|
|||||||||
Total Fleet as of the end of the Year
|
28
|
27
|
13
|
|||||||||
Newbuild Jack-up Rigs not yet Delivered as of the end of Period
|
7
|
9
|
13
|
|||||||||
Jack-up Rigs Committed to be Sold as of the end of Period
|
1
|
—
|
—
|
|||||||||
Total Fleet, including Newbuild Rigs not yet Delivered, as of the end of Period(2)
|
36
|
36
|
26
|
ACQUISITIONS AND DISPOSITIONS SINCE OUR FORMATION
|
||||||||||
Acquisition
|
Closing Date
|
Description of Transaction
|
Transaction
Value
(in $ millions)
|
Rigs Subsequently
Divested
|
||||||
Hercules Acquisition
|
January 23, 2017
|
Acquisition of two premium jack-up rigs
|
$
|
130.0
|
—
|
|||||
Transocean Transaction
|
May 31, 2017
|
Acquisition of 10 jack-up rigs and novation of contracts in respect of five newbuild premium jack-up rigs(1)
|
$
|
1,240.5
|
3 standard jack-up rigs
|
|||||
PPL Acquisition
|
October 6, 2017
|
Acquisition of nine newbuild premium jack-up rigs(2)
|
$
|
1,300.0
|
—
|
|||||
Paragon Transaction
|
March 29, 2018
|
Acquisition of 22 jack-up rigs and one semi-submersible(3)
|
$
|
241.3
|
17 standard jack-up rigs
|
|||||
Keppel Acquisition
|
May 16, 2018
|
Acquisition of five newbuild premium jack-up rigs(4)
|
$
|
742.5
|
—
|
|||||
March 29, 2019
|
Acquisition of one newbuild premium jack-up rig
|
$
|
122.1
|
—
|
|
(1) |
Two jack-up rigs were delivered in January and June 2018, respectively, and one in October 2019. Three jack-up rigs are due to be delivered in 2022. Six premium jack-up rigs and two standard jack-up rigs remain from the Transocean
Transaction. We also have an agreement to sell “Eir”, which we expect to complete in 2020.
|
|
(2) |
All jack-up rigs acquired in the PPL Acquisition have been delivered.
|
|
(4) |
As of December 31, 2019, one jack-up rig has been delivered. Two jack-up rigs have been delivered in 2020 and two jack-up rigs will be delivered in the third quarter of 2022.
|
Rig Name
|
Rig Design
|
Rig
Water
Depth
(ft)
|
Year
Built
|
Customer/
Status
|
Contract
Start
|
Contract
End
|
Location
|
Comments
|
||||||||
PREMIUM JACK-UP RIGS
|
||||||||||||||||
Gyme
|
PPL Pacific Class 400
|
400 ft
|
2018
|
Available
|
Singapore
|
Warm Stacked
|
||||||||||
Skald
|
KFELS Super B Bigfoot Class
|
400 ft
|
2018
|
Available
|
Singapore
|
Warm Stacked
|
||||||||||
Thor
|
KFELS Super B Bigfoot Class
|
400 ft
|
2019
|
Available
|
Singapore
|
Warm Stacked
|
||||||||||
Hermod
|
KFELS B Class
|
400 ft
|
2019
|
Available
|
Singapore
|
Warm Stacked
|
||||||||||
Heimdal
|
KFELS B Class
|
400 ft
|
2020
|
Available
|
Singapore
|
Warm Stacked
|
||||||||||
Hild
|
KFELS Super B Class
|
400 ft
|
2020
|
Available
|
Singapore
|
Warm Stacked
|
||||||||||
Norve
|
PPL Pacific Class 400
|
400 ft
|
2011
|
Available
|
Cameroon
|
Warm Stacked
|
||||||||||
Gerd
|
PPL Pacific Class 400
|
400 ft
|
2018
|
Available
|
Cameroon
|
Warm Stacked
|
||||||||||
Groa
|
PPL Pacific Class 400
|
400 ft
|
2018
|
Available
|
Cameroon
|
Warm Stacked
|
||||||||||
Mist
|
KFELS Super B Bigfoot Class
|
350 ft
|
2013
|
Available
|
Malaysia
|
Warm Stacked
|
||||||||||
Prospector 11
|
F&G, JU2000E
|
400 ft
|
2013
|
Available
|
Netherlands
|
Warm Stacked
|
||||||||||
Gunnlod
|
PPL Pacific Class 400
|
400 ft
|
2018
|
Available
PTTEP
|
March 2020
August 2020
|
July 2020
February 2021
|
Singapore
Malaysia
|
Contract Preparation and Mobilization
LOA
|
||||||||
Saga
|
KFELS Super B Bigfoot Class
|
400 ft
|
2018
|
Available
|
November 2019
|
January 2020
|
Singapore
|
Contract Preparation and Mobilization
|
||||||||
Eni
|
February 2020
|
June 2020
|
Vietnam
|
Operating
|
||||||||||||
PTTEP
|
August 2020
|
August 2021
|
Malaysia
|
LOA
|
||||||||||||
Idun
|
KFELS Super B Bigfoot Class
|
350 ft
|
2013
|
Hoang Long
|
November 2019
|
May 2020
|
Vietnam
|
Operating
|
||||||||
JVPC
|
May 2020
|
September 2020
|
Vietnam
|
Committed with option to extend
|
||||||||||||
Galar
|
PPL Pacific Class 400
|
400 ft
|
2017
|
Available
Pemex
|
November 2019
April 2020
|
March 2020
October 2021
|
Singapore
Mexico
|
Contract Preparation and Mobilization Operating
|
||||||||
Njord
|
PPL Pacific Class 400
|
400 ft
|
2019
|
Available
Pemex
|
November 2019
May 2020
|
April 2020
November 2020
|
Singapore
Mexico
|
Contract Preparation and Mobilization
Committed
|
||||||||
Gersemi
|
PPL Pacific Class 400
|
400 ft
|
2018
|
Pemex
|
August 2019
|
February 2021
|
Mexico
|
Operating
|
||||||||
Grid
|
PPL Pacific Class 400
|
400 ft
|
2018
|
Pemex
|
August 2019
|
February 2021
|
Mexico
|
Operating
|
||||||||
Odin
|
KFELS Super B Bigfoot Class
|
350 ft
|
2013
|
Available
Pemex
|
December 2019
March 2020
|
February 2020
August 2021
|
Mexico
Mexico
|
Contract Preparations
Operating
|
||||||||
Frigg1
|
KFELS Super A
|
400 ft
|
2013
|
Shell
|
December 2019
|
December 2020
|
Nigeria
|
Operating
|
||||||||
Prospector 51
|
F&G, JU2000E
|
400 ft
|
2014
|
Neptune
Available
CNOOC
|
May 2019
April 2020 October 2020
|
April 2020
September 2020
April 2022
|
Netherlands
United Kingdom
United Kingdom
|
Operating
Warm Stacked
Committed with option to extend
|
||||||||
Ran1
|
KFELS Super A
|
400 ft
|
2013
|
Spirit Energy
Centrica Storage
|
April 2019
June 2020
|
June 2020
September 2020
|
United Kingdom
United Kingdom
|
Operating
Committed with option to extend
|
||||||||
Natt
|
PPL Pacific Class 400
|
400 ft
|
2018
|
First E&P
|
April 2019
|
April 2021
|
Nigeria
|
Operating with option to extend
|
JACK-UP RIGS UNDER CONSTRUCTION/NOT DELIVERED
|
||||||||||||||||
Rig Name
|
Rig Design
|
Rig
Water
Depth
(ft)
|
Year
Built
|
Customer/
Status
|
Contract
Start
|
Contract
End
|
Location
|
Comments
|
||||||||
Huldra
|
KFELS Bigfoot B Class
|
400 ft
|
Under Construction
|
KFELS shipyard, Singapore
|
Rig Delivery in August 2022
|
|||||||||||
Tivar
|
KFELS Super B Bigfoot Class
|
400 ft
|
Under Construction
|
KFELS shipyard, Singapore
|
Rig Delivery in June 2022
|
|||||||||||
Heidrun
|
KFELS Bigfoot B Class
|
400 ft
|
Under Construction
|
KFELS shipyard, Singapore
|
Rig Delivery in August 2022
|
|||||||||||
Vale
|
KFELS Super B Bigfoot Class
|
400 ft
|
Under Construction
|
KFELS shipyard, Singapore
|
Rig Delivery in September 2022
|
|||||||||||
Var
|
KFELS Super B Bigfoot Class
|
400 ft
|
Under Construction
|
KFELS shipyard, Singapore
|
Rig Delivery in September 2022
|
|||||||||||
COLD STACKED JACK-UP RIGS
|
||||||||||||||||
Atla
|
F&G, JU 2000
|
400 ft
|
2003
|
United Arab Emirates
|
||||||||||||
Balder
|
F&G, JU 2000
|
400 ft
|
2003
|
Cameroon
|
||||||||||||
Eir2
|
F&G, Mod VI Universe Class
|
394 ft
|
1999
|
United Kingdom
|
Not Marketed
|
|
1. |
HD/HE Capability
|
|
2. |
Asset under sales agreement subject to conditions
|
For the Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017(1)
|
||||||||||
Middle East
|
$
|
43.2
|
41.1
|
—
|
||||||||
Europe
|
114.7
|
75.1
|
—
|
|||||||||
West Africa
|
102.4
|
44.4
|
—
|
|||||||||
South East Asia
|
23.8
|
4.3
|
—
|
|||||||||
Mexico
|
50.0
|
—
|
—
|
|
(1) |
We have provided no data for the percentage of operating revenues earned by each geographical region identified above for the year ended December 31, 2017 because only one of our jack-up rigs was in operation for approximately one day at
the end of December 2017 (in West Africa), with the exception of those jack-up rigs under contract upon closing of the Transocean Transaction for which Transocean, as the seller, retained the associated revenue, expenses and cash flows. See
“—Acquisition from Transocean” for more information.
|
|
• |
“modern” or “premium” – rigs delivered in 2001 or later; and
|
|
• |
“standard” – rigs delivered prior to 2001.
|
|
* |
As more fully described herein, our subsidiary Borr Mexico Ventures Limited also holds a 49% interest in four Mexican entities and a subsidiary of our local operating partner in Mexico holds the remaining 51% interest.
|
|
** |
As more fully described herein, 10% of our subsidiary Borr Jack-up XVI Inc. is held by our local operating partner in Nigeria.
|
|
*** |
We intend to incorporate a new company as a direct subsidiary of Borr Drilling Limited, in order to, among others, guarantee certain of the Company’s obligations
|
D. |
ITEM 4A. |
ITEM 5. |
|
As of and For the Year Ended
December 31,
|
|||||||||||
|
2019
|
2018
|
2017
|
|||||||||
Total Fleet as of January 1
|
27
|
13
|
0
|
|||||||||
Jack-up Rigs Acquired(1)
|
1
|
23
|
12
|
|||||||||
Newbuild Jack-up Rigs Delivered from Shipyards
|
2
|
9
|
1
|
|||||||||
Jack-up Rigs Disposed of
|
2
|
18
|
0
|
|||||||||
Total Fleet as of the end of the Period
|
28
|
27
|
13
|
|||||||||
Newbuild Jack-up Rigs not yet Delivered as of the end of Period
|
7
|
9
|
13
|
|||||||||
Jack-up Rigs Committed to be Sold as of the end of Period
|
1
|
—
|
—
|
|||||||||
Total Fleet, including Newbuild Rigs not yet Delivered, as of the end of Period(2)
|
36
|
36
|
26
|
Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
Total Contract Backlog (in $ millions)(1)
|
$
|
308.5
|
$
|
377.5
|
$
|
28.5
|
||||||
Total Contract Backlog (in contracted rig years)(1)
|
11.8
|
14.3
|
1.5
|
(1) |
The table assumes no exercise of extension options or renegotiations under our current contracts.
|
Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017(1)
|
||||||||||
Technical Utilization (in %)
|
99.0
|
99.3
|
—
|
|||||||||
Economic Utilization (in %)
|
95.9
|
97.9
|
—
|
|||||||||
Rig Utilization (in %)
|
43.3
|
27.3
|
—
|
|||||||||
TRIF (number of incidents)
|
2.12
|
1.54 |
—
|
|||||||||
Weighted Average Number of Operating Rigs(2)
|
11.9
|
7.0
|
—
|
For the Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
(in $ millions, except per share data)
|
||||||||||||
Net loss
|
$
|
(299.1
|
)
|
$
|
(190.9
|
)
|
$
|
(88.0
|
)
|
|||
Depreciation and impairment of non-current assets
|
112.8
|
79.5
|
47.9
|
|||||||||
Amortization of contract backlog*
|
20.2
|
24.2
|
—
|
|||||||||
Interest income
|
(1.5
|
)
|
(1.2
|
)
|
(3.2
|
)
|
||||||
Interest capitalized to newbuildings
|
(18.5
|
)
|
(23.4
|
)
|
—
|
|||||||
Foreign exchange (gain) loss, net
|
(0.7
|
)
|
1.1
|
0.3
|
||||||||
Other financial expenses
|
30.2
|
3.5
|
—
|
|||||||||
Interest expense, gross
|
88.9
|
37.1
|
0.5
|
|||||||||
Loss from equity method investments
|
9.0
|
—
|
—
|
|||||||||
Change in unrealized (loss)/gain on Call Spread Transactions
|
0.5
|
25.7
|
—
|
|||||||||
Loss (gain) on forward contracts
|
29.2
|
14.2
|
(19.3
|
)
|
||||||||
Gain from bargain purchase
|
-
|
(38.1
|
)
|
—
|
||||||||
Amortized mobilization cost
|
22.6
|
12.15
|
—
|
|||||||||
Amortized mobilization revenue
|
(7.4
|
)
|
(1.6
|
)
|
—
|
|||||||
Income tax expense
|
11.2
|
2.5
|
—
|
|||||||||
Adjusted EBITDA
|
$
|
(2.6
|
)
|
$
|
(55.3
|
)
|
$
|
(61.8
|
)
|
|
• |
Rig personnel expenses: compensation, transportation, training, as well as catering costs while the crews are on the jack-up rig. Such expenses vary from country to country and reflect the combination of expatriates and nationals, local
market rates, unionized trade arrangements, local law requirements regarding social security, payroll charges and end of service benefit payments.
|
|
• |
Rig maintenance expenses: expenses related to maintaining our jack-up rigs in operation, including the associated freight and customs duties, which are not capitalized nor deferred. Such expenses do not directly extend the rig life or
increase the functionality of the rig.
|
|
• |
Other rig-related expenses: all remaining operating expenses such as supplies, insurance costs, professional services, equipment rental and other miscellaneous costs.
|
|
• |
Acquisitions and Dispositions: The table below sets forth information relating to our acquisitions and dispositions since our formation:
|
Transaction
(Closing
Date)
|
Transaction
Value
(in $ millions)
|
Purchase Price
Allocation
(in $ millions)
|
Rigs Purchased
|
Rig Status at
Acquisition
|
Rig Status as of
December 31,
2019(1)2
|
Hercules Acquisition (January 23, 2017)
|
$130
(Asset
Acquisition)
|
N/A
|
• 2 premium
jack-up rigs
|
• Warm
Stacked: 2
|
• Under New
Contract: 2
|
Transocean Transaction (May 31, 2017)
|
$1,240.5
(Business
Combination)
|
• Jack-up Rigs: $547.7
• Onerous Contract: $(223.7)
• Current Assets: $0.5
Total: $324.5(2)
• Future Newbuild
Contracts: $916.0
Total: $1,240.5
|
• 6 premium jack-up rigs
• 4 standard jack-up rigs
• 5 contracts for newbuild jack-up rigs
|
• Warm Stacked: 7
• Under Legacy
Contract: 3
• Under
Construction: 5
|
• Warm
Stacked: 3
• Cold
Stacked: 3
• Under New
Contract: 3
• Disposed of: 3
• Under
Construction: 3
|
PPL Acquisition (October 6, 2017)
|
$1,300
(Asset
Acquisition)
|
• N/A
|
• 9 contracts for
newbuild
jack-up rigs
|
• Under
Construction: 9
|
• Warm
Stacked: 2
• Under New
Contract: 7
|
Paragon Transaction (March 29, 2018)
|
$241.3
(Business
Combination)
|
• Jack-up Rigs: $261.0
• Other Net Assets: $18.4
• Bargain Gain: $(38.1)
• Total: $241.3
|
• 2 premium
jack-up rigs
• 20 standard
jack-up rigs
• 1 semi-
submersible
|
• Warm
Stacked:16
• Under Legacy
Contract: 7
|
• Under Legacy
Contract: 3
• Under New
Contract: 2
• Disposed of: 17
• Warm Stacked: 1
|
Keppel Acquisition (May 16, 2018)
|
$742.5
(Asset
Acquisition)
|
N/A
|
• 5 contracts for
newbuild
jack-up rigs
|
• Under
Construction: 5
|
• Under
Construction: 4
• Warm Stacked: 1
|
Keppel Hull
B378
Acquisition
(March 29, 2019)
|
$122.1
(Asset
Acquisition)
|
N/A
|
• 1 contract for
a newbuild
jack-up rig
|
• Under
Construction: 1
|
• Warm
Stacked: 1
|
|
(1) |
Jack-up rigs “Under New Contract” include those rigs which are being mobilized to, or are otherwise awaiting the commencement of, drilling operations under the relevant contract.
|
|
(2) |
This is the amount reflected in the balance sheet as a result of purchase accounting.
|
|
• |
Recent and Future Acquisitions and Dispositions: We are contracted to take delivery of the remaining five newbuild jack-up rigs not yet delivered no later than the end of the third quarter 2022. We
have made and may consider in the future dispositions of jack-up rigs. Acquisitions or dispositions of, our jack-up rigs are likely to impact our revenue as well as our operating and maintenance expenses. For example, in 2018 we recognized
gain on disposals of $18.8 million in connection with the disposition of 18 jack-up rigs, 16 of which were acquired during the Paragon Transaction. In May 2019, we entered into sale agreements for the sale of the “Eir,” “Baug” and “Paragon
C20051,” none of which were operating or on contract, for consideration of $3.0 million each for a total consideration of $9.0 million. The sale of “Eir” is expected to be completed by the end of 2020, subject to certain conditions. The
jack-up rigs have been sold with a contractual obligation not to be used for drilling purposes and so retired from the international jack-up fleet. The sales of “Baug” and “Paragon C20051” were completed in May 2019 for cash consideration of
$6.0 million. In March 2020, we sold one standard jack-up rig “B391” for recycling for total proceeds of $0.8 million. In April 2020, we sold two standard jack-up rigs “B152” and “Dhabi II” with associated backlog for gross proceeds of $15.8
million. In May 2020, we entered into an agreement to sell the semi-submersible MSS1, for recycling. The sale is expected to bring in total proceeds of $2.2 million, and we recorded an impairment charge of $18.4 million in the first quarter
2020. These divestments bring the total number of jack-up rigs divested by us and retired from the international jack-up fleet to 22 since the beginning of 2018.
|
|
• |
Restructuring Costs: Following the Paragon Transaction in March 2018, we undertook a rigorous review of the acquired business and have undertaken steps to reduce headcount, office locations and
administrative costs. In 2018, we recognized $30.7 million of restructuring costs in connection with such cost reduction measures, which also impacted on our operating and general and administrative costs. We continue to implement our
restructuring and integration of the acquired business during 2019, which may affect our operating and general and administrative costs as well as restructuring costs during this year and future years.
|
|
• |
Purchase Price Allocations: In connection with any past or future acquisition accounted for as a business combination, including the Transocean Transaction and the Paragon Transaction, we use a
purchase price allocation so that the value of the assets acquired reflects the estimates, assumptions and judgments of our management relative to the carrying values, remaining useful lives and residual values. The estimates, assumptions and
judgements involved in accounting for acquisitions, including the recognition of goodwill, may result in the impairment of certain assets in the future and have the effect of creating assets and liabilities which directly affect our financial
statements and may indirectly affect our results of operations.
|
|
• |
Revenues: Our revenues are primarily affected by the number of jack-up rigs under contract from time to time and the dayrates we are able to charge our customers, which vary from time to time. To a
significant extent, the dayrates we charge our customers depend on the market cycle of the jack-up drilling market at a given point in time. Historically, when oil prices decrease, capital spending and drilling activity decline, which leads
to an oversupply of drilling rigs and reduced dayrates. Conversely, higher oil prices, increased capital spending and drilling activity and limited supply of drilling rigs have historically led to higher dayrates. In addition, the number of
jack-up rigs under contract from time to time is affected by, among other factors, our relationships with new and existing customers and suppliers, which have grown substantially since our inception in 2016. Going forward, our ability to
leverage those relationships into new contracts and advantageous rates will be critical to our success and prospects for growth. Our revenues may also be affected by other situations, including when our jack-up rigs cease operations due to
technical failures and other situations where we do not collect revenue from our customers. Our ability to keep our jack-up rigs operational when under contract is monitored by our Board and management as Technical Utilization. As we
transition our focus from the acquisition of jack-up rigs to the operation of our jack-up rigs, our results of operations will be more affected by Technical Utilization than was historically the case during our acquisition phase.
|
|
• |
Nature of Our Operating and General and Administrative Expenses: During 2017, the majority of our operating expenses consisted of stacking costs related to our jack-up rigs that were not in
operation. Our operating expenses in 2018 and 2019 reflect much higher levels of expenses relating to operating rigs. To the extent that the offshore drilling market recovers, we expect the nature of our operating expenses will shift to
include primarily expenses related to the ongoing operation of our jack-up rigs. In such case, our operating expenses will depend on various factors, including expenses related to operating our jack-up rigs, maintenance projects, downtime,
weather and other operating factors. In addition, we have incurred and expect to incur direct, incremental general and administrative expenses as a result of our being a publicly traded company in the United States, including costs associated
with hiring personnel for positions created as a result of our U.S. public company status, publishing annual and interim reports to shareholders consistent with SEC and NYSE requirements, expenses relating to compliance with the rules and
regulations of the SEC, listing standards of the NYSE and the costs of independent director compensation. These incremental general and administrative expenses related to being a publicly traded company in the United States are not included
in our historical consolidated results of operations prior to 2019.
|
|
• |
Financing Arrangements and Investments in Securities: The financial income and expenses reflected in our Consolidated Financial Statements may not be indicative of our future financial income and
expenses and may, along with other line items related to our Financing Arrangements and historical financing arrangements detailed in the section entitled “—Our Existing Indebtedness,” change as the number of our jack-up rigs under contract
increases. As we take delivery of the newbuild rigs we have agreed to purchase, we finance a portion of the purchase price and thus our debt levels and finance expense will increase. The financing arrangements we have had in place
historically may not be representative of the agreements that will be in place in the future or that we had in place during our first two years of operations. For example, we may amend our existing Financing Arrangements or enter into new
financing arrangements and such new agreements may not be on the same terms as our current Financing Arrangements. In addition, from time to time, we make and hold investments in other companies in our industry that own/operate offshore
drilling rigs with similar characteristics to our fleet of jack-up rigs, subject to compliance with the covenants contained in certain of our Financing Arrangements which restrict such investments. We also purchase and hold debt or other
securities issued by other companies in the offshore drilling industry from time to time. The impact of these financial investments will impact our results of operations.
|
|
• |
Interest Rates and Derivative Values: A significant portion of our debt bears floating interest rates. For example, the interest rates under certain of our Financing Arrangements are determined with
reference to LIBOR plus a specified margin. As such, movements in interest rates, and LIBOR specifically, could have an adverse effect on our results of operations and cash flows. In addition, in connection with the issuance of our
Convertible Bonds we entered into the Call Spread Transactions, which may have a dilutive effect on our earnings per share to the extent that the market price per share of our Shares exceeds the applicable strike price of the options. In
future periods, interest expense will depend on, among other things, our overall level of indebtedness, interest rates and the value of our Shares and related-derivative values.
|
|
• |
Income Taxes: Income tax expense reflects current tax and deferred taxes related to the operation of our jack-up rigs and may vary significantly depending on the jurisdiction(s) of operation of our
subsidiaries, the underlying contractual arrangements and ownership structure and other factors. In most cases, the calculation of tax is based on net income or deemed income in the jurisdiction(s) where our subsidiaries operate. As we
transition our focus to the operation of our jack-up rigs, our income tax expense will be primarily affected by the number of jack-up rigs under contract from time to time and the dayrates we are able to charge our customers as well as the
expenses we incur which can vary from time to time. Because taxes are impacted by taxable income of our subsidiaries, our tax expense may not be correlated with our income on a consolidated basis.
|
B. |
|
For the Year Ended
December 31,
|
|||||||
|
2019
|
2018
|
||||||
|
(in $ millions)
|
|||||||
SUMMARY CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
|
||||||||
Operating revenues
|
$
|
334.1
|
$
|
164.9
|
||||
Gain from bargain purchase
|
-
|
38.1
|
||||||
Gain on disposals
|
6.4
|
18.8
|
||||||
Operating expenses
|
(491.3
|
)
|
(353.2
|
)
|
||||
Operating loss
|
$
|
(150.8
|
)
|
$
|
(131.4
|
)
|
||
Loss from equity method investments
|
(9.0
|
)
|
-
|
|||||
Total financial expenses, net
|
(128.1
|
)
|
(57.0
|
)
|
||||
Income tax expense
|
(11.2
|
)
|
(2.5
|
)
|
||||
Net loss
|
$
|
(299.1
|
)
|
$
|
(190.9
|
)
|
||
Other comprehensive income
|
5.6
|
0.6
|
||||||
Total comprehensive loss
|
$
|
(293.5
|
)
|
$
|
(190.3
|
)
|
For the Year Ended
December 31,
|
||||||||
2019
|
2018
|
|||||||
(in $ millions)
|
||||||||
Rig operating and maintenance expenses
|
$
|
307.9
|
$
|
180.1
|
||||
Depreciation of non-current assets
|
101.4
|
79.5
|
||||||
Impairment of non-current assets
|
11.4
|
—
|
||||||
Amortization of acquired contract backlog
|
20.2
|
24.2
|
||||||
General and administrative expenses
|
50.4
|
38.7
|
||||||
Restructuring costs
|
-
|
30.7
|
||||||
Operating expenses
|
$
|
491.3
|
$
|
353.2
|
For the Year Ended
December 31,
|
||||||||
2019
|
2018
|
|||||||
(in $ millions)
|
||||||||
Net Cash Provided by / (Used in) Operating Activities
|
$
|
(89.0
|
)
|
$
|
(135.2
|
)
|
||
Net Cash Provided by / (Used in) Investing Activities
|
(271.1
|
)
|
(560.1
|
)
|
||||
Net Cash Provided by / (Used in) Financing Activities
|
397.3
|
583.5
|
||||||
Net Change in Cash and Cash Equivalents
|
$
|
37.2
|
$
|
(111.8
|
)
|
Less
than
1 year
|
1–3
years
|
3–5
years
|
More
than
5 years
|
Total
|
||||||||||||||||
(in $ millions)
|
||||||||||||||||||||
Long-term debt obligations
|
$
|
0.0
|
$
|
577.0
|
$
|
1,136.6
|
$
|
0.0
|
$
|
1,713.5
|
||||||||||
Interest obligations(1)
|
80.7
|
172.5
|
109.7
|
0.0
|
362.9
|
|||||||||||||||
Operating lease obligations
|
4.0
|
3.0
|
0.7
|
1.6
|
9.3
|
|||||||||||||||
Purchase obligations(2)
|
793.8
|
0.0
|
0.0
|
0.0
|
793.8
|
|||||||||||||||
Other long-term liabilities
|
1.0
|
5.9
|
7.6
|
1.4
|
15.9
|
|||||||||||||||
Total
|
879.5
|
758.4
|
1,254.5
|
3.0
|
2,895.4
|
|
(1) |
The estimated interest obligations take into account both contractual interest rates and expected margins, but do not reflect our entry into the Hayfin Facility, Syndicated Facility and New Bridge Facility agreements.
|
|
(2) |
After the balance sheet date, the agreements to purchase rigs in 2020 has been renegotiated and these will now be delivered in 2022.
|
ITEM 6. |
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
|
A. |
Directors and Executive Officers
|
Age
|
Position/Title
|
||
Pål Kibsgaard
|
53
|
Director and Chairman of the Board
|
||
Tor Olav Trøim
|
57
|
Director and Deputy Chairman of the Board
|
||
Jan A. Rask
|
65
|
Director
|
||
Patrick Schorn
|
52
|
Director
|
||
Kate Blankenship
|
55
|
Director
|
||
Georgina Sousa
|
70
|
Director and Company Secretary
|
||
Neil Glass
|
59
|
Director
|
||
Svend Anton Maier
|
56
|
Chief Executive Officer, Borr Drilling Management UK.
|
||
Francis Millet
|
59
|
Chief Financial Officer, Borr Drilling Management UK.
|
|
Share Options
|
||||||||
Named of Officer or Director
|
Number of securities underlying
unexercised options (#)
|
Option exercise
price
|
Option expiration
date
|
||||||
Kate Blankenship, Director
|
30,000
|
$
|
17.50
|
March 11, 2024
|
|||||
|
|
||||||||
Georgina Sousa, Director and Company Secretary
|
10,000
|
$
|
17.50
|
March 11, 2024
|
|||||
|
|
||||||||
Svend Anton Maier, Chief Executive Officer, Borr Drilling Management UK
|
258,000
|
$
|
17.50
|
June 12, 2022
|
|||||
242,000
|
$
|
24.35
|
July 6, 2023
|
||||||
|
|
||||||||
Rune Magnus Lundetræ, Former Chief Financial Officer (until December 31, 2019)
|
172,000
|
$
|
17.50
|
June 12, 2022(1)
|
|||||
|
35,500
|
$
|
24.35
|
July 6, 2023(1)
|
|
(1) |
Options issued to Rune Magnus Lundetræ expired on March 31, 2020.
|
Company
Employees
|
Contractors
|
Total
|
||||||||||
Rig-based
|
543
|
1,154
|
1,697
|
|||||||||
Shore-based
|
151
|
88
|
239
|
|||||||||
Total
|
694
|
1,242
|
1,936
|
|
• |
each of our directors and executive officers; and
|
|
• |
all of our directors and executive officers as a group
|
Name of Officer or Director
|
Common
Shares
Owned(1)
|
%
|
Total number
of options
|
Options
vested
|
Exercise
price $
|
Expiry date
|
||||||||||||||||||
Tor Olav Trøim(2)
|
9,651,342
|
6.1
|
%
|
-
|
-
|
-
|
-
|
|||||||||||||||||
Fredrik Halvorsen(3)
|
2,327,110
|
1.5
|
%
|
-
|
-
|
-
|
-
|
|||||||||||||||||
Pål Kibsgaard (4)
|
332,069
|
*
|
-
|
-
|
-
|
-
|
||||||||||||||||||
Jan A. Rask
|
91,208
|
*
|
-
|
-
|
-
|
-
|
||||||||||||||||||
Svend Anton Maier(5)
|
69,000
|
*
|
258,000
|
86,000
|
17.50
|
June 12, 2022
|
||||||||||||||||||
242,000
|
60,500
|
24.35
|
July 6, 2023
|
|||||||||||||||||||||
Rune Magnus Lundetræ(6)
|
60,000
|
*
|
172,000
|
86,000
|
17.50
|
June 12, 2022
|
||||||||||||||||||
35,500
|
35,500
|
24.35
|
July 6, 2023
|
|||||||||||||||||||||
Francis Millet(7)
|
20,000
|
*
|
-
|
-
|
-
|
-
|
||||||||||||||||||
Patrick Schorn
|
19,000
|
*
|
-
|
-
|
-
|
-
|
||||||||||||||||||
Kate Blankenship(8)
|
—
|
*
|
30,000
|
7,500
|
17.50
|
March 11, 2024
|
||||||||||||||||||
Georgina Sousa(9)
|
—
|
*
|
10,000
|
2,500
|
17.50
|
March 11, 2024
|
||||||||||||||||||
Neil Glass (10)
|
—
|
*
|
-
|
-
|
-
|
-
|
||||||||||||||||||
Directors and Executive Officers
|
12,569,729
|
7.9
|
%
|
-
|
-
|
-
|
-
|
|
(1) |
Our post-Reverse Share Split Shares began to trade on the Oslo Børs on June 26, 2019. The table above reflects our Reverse Share Split.
|
|
(2) |
Represents shares beneficially owned by Tor Olav Trøim, including those held by Drew Holdings Ltd., Magni Partners (Bermuda) Ltd and their respective subsidiaries and affiliates, as the context may require.
|
|
(3) |
Represents shares beneficially owned by Fredrik Halvorsen, including those held by Ubon Partners AS and its respective subsidiaries and affiliates, as the context may require. Fredrik Halvorsen resigned from the Board of Directors
effective September 27, 2019.
|
|
(4) |
Pål Kibsgaard was appointed on September 27, 2019.
|
|
(5) |
Includes options to purchase 86,000 shares exercisable at a price of $17.50 per share and which expire on June 12, 2022 and options to purchase 60,500 shares exercisable at a price of $24.35 per share and which expire on July 6, 2023.
|
|
(6) |
Includes options to purchase 86,000 shares exercisable at a price of $17.50 per share and which expired on March 31, 2020 and options to purchase 35,500 shares exercisable at a price of $24.35 per share and which expired on March 31,
2020. Rune Magnus Lundetræ announced his resignation as Chief Financial Officer on November 6, 2019, which was effective on December 31, 2019.
|
|
(7) |
Francis Millet was appointed on January 15, 2020.
|
|
(8) |
Kate Blankenship was appointed on February 26, 2019.
|
|
(9) |
Georgina Sousa was appointed on February 27, 2019.
|
|
(10) |
Neil Glass was appointed on December 31, 2019.
|
*
|
Represents ownership of less than 1% of our outstanding Shares.
|
ITEM 7. |
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
|
|
A. |
Beneficial Owner (Name/Address)
|
Common Shares
Owned(1)
|
Percentage of
Common Shares
|
||||||
Granular Capital Ltd(2)
|
24,985,888
|
15.8
|
%
|
|||||
Allan & Gill Gray Foundation(3)
|
20,777,719
|
13.1
|
%
|
|||||
Schlumberger Oilfield Holdings Limited
|
15,131,700
|
9.6
|
%
|
|||||
Tor Olav Trøim(4)
|
9,651,342
|
6.1
|
%
|
|
(1) |
Our post-Reverse Share Split Shares began to trade on the Oslo Børs on June 26, 2019. The table above reflects our Reverse Share Split.
|
|
(2) |
This information is based solely on the Oslo Stock Exchange mandatory notification of trades by Granular Capital Ltd on May 22, 2020.
|
|
(3) |
This information is based solely on the Oslo Stock Exchange mandatory notification of trades by Allan Gray Australia Pty Limited, established under the laws of Australia, and Orbis Investment Management Limited, established under the
laws of Bermuda on May 22, 2020. To the best of our knowledge, the above represents shares beneficially owned by the Allan & Gill Gray Foundation, including (i) 10,816,181 shares held by funds managed by Orbis Investment Management
Limited and/or Allan Gray Australia Pty Limited (together, the “Managers”) and (ii) 10,797,389shares issuable upon the conversion of the principal amount outstanding of our Convertible Bonds which is held by the Allan & Gill Gray
Foundation and related entities. To the best of our knowledge, the Managers are ultimately controlled by the Allan & Gill Gray Foundation, through its ownership or control, as applicable, of Orbis Allan Gray Limited, Allan Gray
(Holdings) Pty Limited and Orbis Holdings Limited.
|
|
(4) |
Represents shares beneficially owned by Tor Olav Trøim, including those held by Drew Holdings Ltd., Magni Partners (Bermuda) Ltd and their respective subsidiaries and affiliates, as the context may require.
|
|
• |
Mr. Pål Kibsgaard—230,769 shares;
|
|
• |
Mr. Tor Olav Trøim—769,231 shares; and
|
|
• |
Mr. Jan A. Rask—76,923 shares.
|
ITEM 8. |
FINANCIAL INFORMATION
|
ITEM 9. |
THE OFFER AND LISTING
|
ITEM 10. |
ADDITIONAL INFORMATION
|
|
• |
we will not be able to pay our liabilities as they fall due; or
|
|
• |
the realizable value of our assets is less than our liabilities.
|
|
• |
If he resigns his office by notice in writing delivered to the registered office or tendered at a meeting of the Board;
|
|
• |
If he becomes of unsound mind or a patient for any purpose of any statute or applicable law relating to mental health and the Board resolves that his office is vacated;
|
|
• |
If he becomes bankrupt or compounds with his creditors;
|
|
• |
If he is prohibited by law from being a Director; or
|
|
• |
If he ceases to be a Director by virtue of the Companies Act or is removed from office pursuant to the company’s bye-laws.
|
|
• |
being permitted to present only two years of audited financial statements and only two years of related disclosure in “Item 5. Operating and Financial Review and Prospects” in this annual report; and
|
|
• |
not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act.
|
|
• |
the excess distribution or gain will be allocated ratably over the U.S. Holder’s holding period for the common shares;
|
|
• |
the amount allocated to the current taxable year and any taxable years in the U.S. Holder’s holding period prior to the first taxable year in which we are classified as a PFIC (each, a “pre-PFIC year”), will be taxable as ordinary
income;
|
|
• |
the amount allocated to each prior taxable year, other than a pre-PFIC year, will be subject to tax at the highest marginal tax rate in effect for individuals or corporations, as appropriate, for that year; and
|
|
• |
the interest charge generally applicable to underpayments of tax will be imposed on the tax attributable to each prior taxable year, other than a pre-PFIC year.
|
ITEM 11. |
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
Year Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
(in $ millions)
|
||||||||||||
Sensitivity Analysis – Financial income (expense), net
|
||||||||||||
Increase by 100 basis points
|
$
|
(10.2
|
)
|
$
|
(3.8
|
)
|
$
|
2.9
|
||||
Decrease by 100 basis points
|
10.2
|
3.8
|
(2.9
|
)
|
||||||||
Sensitivity Analysis – Loss before income taxes
|
||||||||||||
Increase by 100 basis points
|
$
|
(10.2
|
)
|
$
|
(3.8
|
)
|
$
|
2.9
|
||||
Decrease by 100 basis points
|
10.2
|
3.8
|
(2.9
|
)
|
ITEM 12. |
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
|
ITEM 13. |
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
|
ITEM 14. |
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
|
ITEM 15. |
CONTROLS AND PROCEDURES
|
|
ITEM 16. |
[RESERVED]
|
ITEM 16A. |
AUDIT COMMITTEE FINANCIAL EXPERT
|
ITEM 16B. |
CODE OF ETHICS
|
ITEM 16C. |
PRINCIPAL ACCOUNTANT FEES AND SERVICES
|
Year ended December 31,
|
||||||||
2019
|
2018
|
|||||||
(in millions of USD)
|
||||||||
Audit Fees1
|
$
|
1.2
|
$
|
0.7
|
||||
Audit-Related Fees
|
1.1 |
-
|
||||||
Tax Fees2
|
0.3
|
0.1
|
||||||
All Other Fees
|
0.0 |
0.2
|
||||||
Total
|
$
|
2.6 |
$
|
1.0
|
(1) |
Includes fees billed or accrued for professional services rendered by the principal accountant, and member firms in their respective network, for the audit of our annual financial statements, and those of our consolidated subsidiaries,
as well as additional services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements, except for those not required by statute or regulation.
|
(2) |
Tax fees consist of fees for professional services rendered during the fiscal year by the principal accountant mainly for tax compliance and assistance with tax audits and appeals.
|
ITEM 16D. |
EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
|
ITEM 16E. |
PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
|
ITEM 16F. |
CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT
|
|
• |
no “disagreements” (as that term is defined in Item 16F(a)(1)(iv) of Form 20-F and the instructions to Item 16F) between the Company and PwC Norway on any matters of accounting principles or practices, financial statement disclosure,
or auditing scope or procedures, which disagreement(s), if not resolved to PwC Norway’s satisfaction would have caused PwC Norway to make reference to the subject matter of the disagreement(s) in connection with its report, and
|
|
• |
no “reportable events” (as that term is defined in Item 16F(a)(1)(v) of Form 20-F), except for the material weakness in the Company’s internal control over financial reporting related to the lack of a sufficient number of competent
financial reporting and accounting personnel to prepare and review our consolidated financial statements and related disclosures in accordance with U.S. GAAP and financial reporting requirements set forth by the SEC as disclosed in the
Company’s prior filings on Form F-1 and F-1/A with the SEC. The Audit Committee of the Company discussed the subject matter of each reportable event with PwC Norway and has authorized PwC Norway to respond fully to the inquiries of PwC UK
concerning the subject matter of each reportable event.
|
ITEM 16G. |
CORPORATE GOVERNANCE
|
ITEM 16H. |
MINE SAFETY DISCLOSURE
|
ITEM 17. |
FINANCIAL STATEMENTS
|
ITEM 18. |
FINANCIAL STATEMENTS
|
ITEM 19. |
EXHIBITS
|
Exhibit Number
|
Description of Document
|
|
Memorandum of Association of Borr Drilling (incorporated by reference to Exhibit 3.1 of the Registration Statement, filed on Form F-1, dated July 10, 2019)
|
||
Amended and Restated Bye-Laws adopted on August 25, 2017 (incorporated by reference to Exhibit 3.2 of the Registration Statement, filed on Form F-1, dated July 10, 2019)
|
||
Description of Securities Registered under Section 12 of the Exchange Act
|
||
Senior Secured Credit Facilities Agreement dated as of June 25, 2019 between Borr Drilling Limited, DNB Bank ASA, Danske Bank, Citibank N.A., Jersey Branch and Goldman Sachs Bank USA, among others (incorporated by reference to
Exhibit 10.1 of Amendment No. 1 to the Registration Statement, filed on Form F-1, dated July 23, 2019).
|
||
Amendment and Restatement Agreement to Senior Secured Credit Facilities Agreement dated June 5, 2020 between Borr Drilling Limited, DNB Bank ASA, Danske Bank, Citibank N.A., Jersey Branch and Goldman Sachs Bank USA, among others
|
||
Bond Terms for Borr Drilling Limited USD 350,000,000 3.875% Senior Unsecured Convertible Bonds 2018/2023 (incorporated by reference to Exhibit 10.2 of the Registration Statement, filed on Form F-1, dated July 10, 2019)
|
||
Master Agreement dated as of October 6, 2017 between PPL Shipyard Pte Ltd. and Borr Drilling Limited (incorporated by reference to Exhibit 10.3 of Amendment No. 1 to the Registration Statement, filed on Form F-1, dated July 23, 2019).
|
||
Global Amendment Deed dated June 5, 2020 between, among others. PPL Shipyard Pte Ltd. and Borr Drilling Limited
|
||
Collaboration Agreement dated as of March 26, 2017 between Borr Drilling Limited and Schlumberger Oilfield Holdings Limited (incorporated by reference to Exhibit 10.7 of the Registration Statement, filed on Form F-1, dated July 10,
2019).
|
||
Enhanced Collaboration Agreement dated as of October 6, 2017 between Schlumberger Oilfield Holdings Limited and Borr Drilling Limited (incorporated by reference to Exhibit 10.8 of the Registration Statement, filed on Form F-1, dated
July 10, 2019).
|
||
Facility Agreement dated as of June 25, 2019 between funds managed by Hayfin Capital Management LLP, as lenders, and Borr Midgard Assets Ltd., among others (incorporated by reference to Exhibit 10.9 of Amendment No, 2 to the
Registration Statement, filed on Form F-1, dated July 29, 2019).
|
Exhibit Number
|
Description of Document
|
|
Deferral and Amendment Letter dated as of June 5, 2020 between funds managed by Hayfin Capital Management LLP, as lenders, and Borr Midgard Assets Ltd., among others
|
||
Framework Deed dated 4 June 2020 between, among others, Borr Drilling Limed, Keppel FELS Limited and Offshore Partners Pte. Ltd.
|
||
List of Subsidiaries of Borr Drilling Limited.
|
||
Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer.
|
||
Rule 13a-14(a)/15d-14(a) Certification of Chief Financial Officer.
|
||
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes-Oxley Act of 2002.
|
||
Letter from PwC Norway to SEC relating to statements made in Item 16F.
|
||
101.INS**
|
XBRL Instance Document.
|
|
101.SCH**
|
XBRL Taxonomy Extension Schema Document.
|
|
101.CAL**
|
XBRL Taxonomy Extension Calculation Linkbase Document.
|
|
101.DEF**
|
XBRL Taxonomy Extension Definition Linkbase Document.
|
|
101.LAB**
|
XBRL Taxonomy Extension Label Linkbase Document.
|
|
101.PRE**
|
XBRL Taxonomy Extension Presentation Linkbase Document.
|
|
* |
Previously filed.
|
|
** |
Filed herewith.
|
|
# |
Portions of this exhibit have been omitted because such portions are both not material and would be competitively harmful if publicly disclosed. The omissions have been indicated by Asterisks (“[***]”).
|
Borr Drilling Limited
|
||
By:
|
/s/ Svend Anton Maier
|
|
Name: Svend Anton Maier
|
||
Title: Chief Executive Officer
|
Page
|
|
Report of Independent Registered Public Accounting Firm
|
F-2
|
Consolidated Statement of Operations for the years ended December 31, 2019, 2018 and 2017
|
F-4
|
Consolidated Statement of Comprehensive Loss for the years ended December 31, 2019, 2018 and 2017
|
F-5
|
Consolidated Balance Sheet as of December 31, 2019 and 2018
|
F-6
|
Consolidated Statement of Cash Flows for the years ended December 31, 2019, 2018 and 2017
|
F-8
|
Consolidated Statement of Changes in Shareholders’ Equity for the years ended December 31, 2019, 2018 and 2017
|
F-9
|
Notes to the Consolidated Financial Statements
|
F-10
|
Notes
|
2019
|
2018
|
2017
|
|||||||||||||
Operating revenues
|
||||||||||||||||
Dayrate revenue
|
4
|
327.6
|
164.9
|
0.1
|
||||||||||||
Related party revenue
|
6.5
|
-
|
-
|
|||||||||||||
Total operating revenues
|
334.1
|
164.9
|
0.1
|
|||||||||||||
Gain from bargain purchase
|
16
|
-
|
38.1
|
-
|
||||||||||||
Gain on disposals
|
5
|
6.4
|
18.8
|
-
|
||||||||||||
Operating expenses
|
||||||||||||||||
Rig operating and maintenance expenses
|
(307.9
|
)
|
(180.1
|
)
|
(36.2
|
)
|
||||||||||
Depreciation of non-current assets
|
12
|
(101.4
|
)
|
(79.5
|
)
|
(21.2
|
)
|
|||||||||
Impairment of non-current assets
|
12
|
(11.4
|
)
|
-
|
(26.7
|
)
|
||||||||||
Amortization of acquired contract backlog
|
(20.2
|
)
|
(24.2
|
)
|
-
|
|||||||||||
General and administrative expenses
|
(50.4
|
)
|
(38.7
|
)
|
(21.0
|
)
|
||||||||||
Restructuring costs
|
16
|
-
|
(30.7
|
)
|
-
|
|||||||||||
Cost for issuance of warrants
|
27
|
-
|
-
|
(4.7
|
)
|
|||||||||||
Total operating expenses
|
(491.3
|
)
|
(353.2
|
)
|
(109.8
|
)
|
||||||||||
Operating loss
|
(150.8
|
)
|
(131.4
|
)
|
(109.7
|
)
|
||||||||||
Loss from equity method investments
|
3
|
(9.0
|
)
|
-
|
-
|
|||||||||||
Financial income (expenses), net
|
||||||||||||||||
Interest income
|
1.5
|
1.2
|
3.2
|
|||||||||||||
Interest expenses, net of amounts capitalized
|
(70.4
|
)
|
(13.7
|
)
|
(0.5
|
)
|
||||||||||
Other financial (expenses) income, net
|
6
|
(59.2
|
)
|
(44.5
|
)
|
19.0
|
||||||||||
Total financial (expenses) income, net
|
(128.1
|
)
|
(57.0
|
)
|
21.7
|
|||||||||||
Loss before income taxes
|
(287.9
|
)
|
(188.4
|
)
|
(88.0
|
)
|
||||||||||
Income tax expense
|
7
|
(11.2
|
)
|
(2.5
|
)
|
-
|
||||||||||
Net loss
|
(299.1
|
)
|
(190.9
|
)
|
(88.0
|
)
|
||||||||||
Net loss attributable to non-controlling interests
|
24
|
(1.5
|
)
|
(0.4
|
)
|
-
|
||||||||||
Net loss attributable to shareholders of Borr Drilling Limited
|
(297.6
|
)
|
(190.5
|
)
|
(88.0
|
)
|
||||||||||
Loss per share
|
||||||||||||||||
Basic loss per share
|
8
|
(2.78
|
)
|
(1.85
|
)
|
(1.70
|
)
|
|||||||||
Diluted loss per share
|
8
|
(2.78
|
)
|
(1.85
|
)
|
(1.70
|
)
|
|||||||||
Weighted-average shares outstanding
|
8
|
107,478,625
|
102,877,501
|
51,726,288
|
Notes
|
2019
|
2018
|
2017
|
|||||||||||||
Net loss
|
(299.1
|
)
|
(190.9
|
)
|
(88.0
|
)
|
||||||||||
Unrealized (loss) gain from marketable securities
|
17
|
(6.4
|
)
|
0.6
|
(6.2
|
)
|
||||||||||
Unrealized gain from marketable securities reclassified to other financial income, net in the Statement of Operations
|
12.0
|
-
|
-
|
|||||||||||||
Other comprehensive income (loss)
|
5.6
|
0.6
|
(6.2
|
)
|
||||||||||||
Total comprehensive loss
|
(293.5
|
)
|
(190.3
|
)
|
(94.2
|
)
|
||||||||||
Comprehensive loss attributable to
|
||||||||||||||||
Shareholders of Borr Drilling Limited
|
(292.0
|
)
|
(189.9
|
)
|
(94.2
|
)
|
||||||||||
Non-controlling interest
|
(1.5
|
)
|
(0.4
|
)
|
-
|
|||||||||||
Total comprehensive loss
|
(293.5
|
)
|
(190.3
|
)
|
(94.2
|
)
|
Notes
|
2019
|
2018
|
||||||||||
ASSETS
|
||||||||||||
Current assets
|
||||||||||||
Cash and cash equivalents
|
59.1
|
27.9
|
||||||||||
Restricted cash
|
9
|
69.4
|
63.4
|
|||||||||
Trade receivables
|
10
|
40.2
|
25.1
|
|||||||||
Jack-up drilling rigs held for sale
|
12
|
3.0
|
-
|
|||||||||
Marketable securities
|
17
|
-
|
4.2
|
|||||||||
Prepaid expenses
|
8.1
|
10.8
|
||||||||||
Acquired contract backlog
|
4,16
|
-
|
20.2
|
|||||||||
Deferred mobilization and contract preparation cost
|
4
|
19.3
|
6.0
|
|||||||||
Accrued revenue
|
4
|
31.7
|
18.9
|
|||||||||
Tax retentions receivable
|
11.6
|
11.6
|
||||||||||
Due from related parties
|
28
|
8.6
|
-
|
|||||||||
Other current assets
|
11
|
26.9
|
20.5
|
|||||||||
Total current assets
|
277.9
|
208.6
|
||||||||||
Non-current assets
|
||||||||||||
Property, plant and equipment
|
7.3
|
9.5
|
||||||||||
Jack-up drilling rigs
|
4,12
|
2,683.3
|
2,278.1
|
|||||||||
Newbuildings
|
13
|
261.4
|
361.8
|
|||||||||
Deferred mobilization and contract preparation cost
|
3.5
|
5.1
|
||||||||||
Marketable securities
|
17
|
-
|
31.0
|
|||||||||
Equity method investments
|
3
|
31.4
|
-
|
|||||||||
Other long-term assets
|
19
|
15.2
|
19.6
|
|||||||||
Total non-current assets
|
3,002.1
|
2,705.1
|
||||||||||
Total assets
|
3,280.0
|
2,913.7
|
||||||||||
LIABILITIES AND EQUITY
|
||||||||||||
Current liabilities
|
||||||||||||
Trade payables
|
14.1
|
9.6
|
||||||||||
Amounts due to related parties
|
28
|
0.4
|
0.4
|
|||||||||
Unrealized loss on forward contracts
|
18
|
64.3
|
35.1
|
|||||||||
Accrued expenses
|
62.1
|
63.7
|
||||||||||
Onerous contracts
|
22
|
71.3
|
3.2
|
|||||||||
VAT and current taxes payable
|
17.8
|
4.2
|
||||||||||
Other current liabilities
|
20
|
19.7
|
3.1
|
|||||||||
Total current liabilities
|
249.7
|
119.3
|
||||||||||
Non-current liabilities
|
||||||||||||
Long-term debt
|
21
|
1,709.8
|
1,174.6
|
|||||||||
Other liabilities
|
3,7,14
|
22.7
|
8.0
|
|||||||||
Liabilities from equity method investments
|
3
|
3.7
|
-
|
|||||||||
Onerous contracts
|
22
|
-
|
78.3
|
|||||||||
Total non-current liabilities
|
1,736.2
|
1,260.9
|
||||||||||
Total liabilities
|
1,985.9
|
1,380.2
|
||||||||||
Commitments and contingencies
|
23
|
Notes
|
2019
|
2018
|
||||||||||
Stockholders’ Equity
|
||||||||||||
Common shares of par value $0.05 per share: authorized 137,500,000
(2018: 125,000,000) shares, issued 112,278,065 (2018: 106,528,065) shares and outstanding 110,818,351 (2018: 105,068,351) shares |
30
|
5.6
|
5.3
|
|||||||||
Treasury shares
|
(26.2
|
)
|
(26.2
|
)
|
||||||||
Additional paid in capital
|
1,891.2
|
1,837.5
|
||||||||||
Other comprehensive loss
|
-
|
(5.6
|
)
|
|||||||||
Accumulated deficit
|
(576.7
|
)
|
(279.2
|
)
|
||||||||
Equity attributable to the Company
|
1,293.9
|
1,531.8
|
||||||||||
Non-controlling interest
|
24
|
0.2
|
1.7
|
|||||||||
Total equity
|
1,294.1
|
1,533.5
|
||||||||||
Total liabilities and equity
|
3,280.0
|
2,913.7
|
Notes
|
2019
|
2018
|
2017
|
|||||||||||||
Cash Flows from Operating Activities
|
||||||||||||||||
Net loss
|
(299.1
|
)
|
(190.9
|
)
|
(88.0
|
)
|
||||||||||
Adjustments to reconcile net (loss) to net cash used in operating activities:
|
||||||||||||||||
Non-cash compensation expense related to stock options and warrants
|
25
|
3.9
|
3.7
|
8.2
|
||||||||||||
Depreciation of non-current assets
|
12
|
101.4
|
79.5
|
21.2
|
||||||||||||
Impairment of non-current assets
|
12
|
11.4
|
-
|
26.7
|
||||||||||||
Amortization of acquired contract backlog
|
20.2
|
24.2
|
-
|
|||||||||||||
Payments related to onerous contracts
|
-
|
-
|
(152.2
|
)
|
||||||||||||
Gain on disposals
|
5
|
(6.4
|
)
|
(18.8
|
)
|
-
|
||||||||||
Unrealized (gain) loss on financial instruments
|
6
|
45.1
|
65.2
|
(4.4
|
)
|
|||||||||||
Loss from equity method investments
|
3
|
9.0
|
-
|
-
|
||||||||||||
Non-cash loan fees related to settled debt
|
6
|
5.6
|
-
|
-
|
||||||||||||
Bargain purchase gain
|
16
|
-
|
(38.1
|
)
|
-
|
|||||||||||
Deferred income tax
|
7
|
1.4
|
(0.5
|
)
|
-
|
|||||||||||
Change in other current and non-current assets, net
|
(25.8
|
)
|
(24.8
|
)
|
(16.5
|
)
|
||||||||||
Change in current and non-current liabilities, net
|
44.3
|
(34.7
|
)
|
20.1
|
||||||||||||
Net cash used in operating activities
|
(89.0
|
)
|
(135.2
|
)
|
(184.9
|
)
|
||||||||||
Cash Flows from Investing Activities
|
||||||||||||||||
Purchase of plant and equipment
|
(1.9
|
)
|
(7.8
|
)
|
(0.1
|
)
|
||||||||||
Proceeds from sale of fixed assets
|
5
|
7.1
|
41.6
|
-
|
||||||||||||
Business acquisition, net of cash acquired
|
16
|
-
|
(195.1
|
)
|
(324.5
|
)
|
||||||||||
Purchase of marketable securities
|
17
|
(6.9
|
)
|
(13.0
|
)
|
(26.9
|
)
|
|||||||||
Investments in equity method investments
|
3
|
(30.8
|
)
|
-
|
-
|
|||||||||||
Proceeds from sale of marketable securities
|
17
|
31.3
|
-
|
-
|
||||||||||||
Additions to newbuildings
|
13
|
(142.6
|
)
|
(362.4
|
)
|
(785.2
|
)
|
|||||||||
Additions to jack-up drilling rigs
|
12
|
(127.3
|
)
|
(23.4
|
)
|
(119.8
|
)
|
|||||||||
Net cash used in investing activities
|
(271.1
|
)
|
(560.1
|
)
|
(1,256.5
|
)
|
||||||||||
Cash Flows from Financing Activities
|
||||||||||||||||
Proceeds from share issuance, net of issuance costs and conversion of shareholders loans
|
49.2
|
218.9
|
1,415.0
|
|||||||||||||
Proceeds from related party shareholder loan
|
28
|
-
|
27.7
|
12.7
|
||||||||||||
Purchase of treasury shares
|
30
|
-
|
(19.7
|
)
|
(8.4
|
)
|
||||||||||
Repayment of long-term debt
|
21
|
(390.0
|
)
|
(89.3
|
)
|
-
|
||||||||||
Purchase of financial instruments
|
-
|
(28.5
|
)
|
-
|
||||||||||||
Proceeds, net of deferred loan costs, from issuance of long-term debt
|
13,15,21
|
679.6
|
474.4
|
87.0
|
||||||||||||
Proceeds, net of deferred loan costs, from issuance of short-term debt
|
58.5
|
-
|
-
|
|||||||||||||
Net cash provided by financing activities
|
397.3
|
583.5
|
1,506.3
|
|||||||||||||
Net increase (decrease) in cash and cash equivalents and restricted cash
|
37.2
|
(111.8
|
)
|
65.0
|
||||||||||||
Cash and cash equivalents and restricted cash at beginning of the period
|
91.3
|
203.1
|
138.1
|
|||||||||||||
Cash and cash equivalents and restricted cash at the end of period
|
128.5
|
91.3
|
203.1
|
|||||||||||||
Supplementary disclosure of cash flow information
|
||||||||||||||||
Interest paid, net of capitalized interest
|
(69.0
|
)
|
(8.6
|
)
|
-
|
|||||||||||
Income taxes paid
|
(1.3
|
)
|
(3.2
|
)
|
-
|
|||||||||||
Issuance of long-term debt as non-cash settlement for newbuild delivery instalment
|
177.9
|
609.0
|
-
|
|||||||||||||
Non-cash settlement of shareholder loan with issuance of shares
|
28
|
-
|
27.7
|
-
|
||||||||||||
Non-cash offset in respect of jack-up drilling rigs
|
26.8
|
-
|
-
|
Number of
outstanding
shares
|
Common
shares
|
Treasury
shares
|
Additional
paid in
capital
|
Other
Comprehensive
(Loss)/Income
|
Accumulated
Deficit
|
Non-
controlling
interest
|
Total
equity
|
|||||||||||||||||||||||||
Consolidated balance at January 1, 2017
|
15,501,000
|
0.8
|
—
|
157.8
|
—
|
(0.8
|
)
|
—
|
157.8
|
|||||||||||||||||||||||
Issue of common shares
|
78,220,000
|
3.9
|
—
|
1,446.2
|
—
|
—
|
—
|
1,450.1
|
||||||||||||||||||||||||
Equity issuance costs
|
—
|
—
|
—
|
(17.8
|
)
|
—
|
—
|
—
|
(17.8
|
)
|
||||||||||||||||||||||
Other transactions:
|
||||||||||||||||||||||||||||||||
Exercise of warrants
|
1,937,500
|
0.1
|
—
|
—
|
—
|
—
|
—
|
0.1
|
||||||||||||||||||||||||
Fair value of warrants issued
|
—
|
—
|
—
|
7.7
|
—
|
—
|
—
|
7.7
|
||||||||||||||||||||||||
Equity issuance costs, warrants
|
—
|
—
|
—
|
(3.0
|
)
|
—
|
—
|
—
|
(3.0
|
)
|
||||||||||||||||||||||
Purchase of warrants
|
—
|
—
|
—
|
(4.7
|
)
|
—
|
—
|
—
|
(4.7
|
)
|
||||||||||||||||||||||
Stock based compensation
|
—
|
—
|
1.7
|
1.8
|
—
|
—
|
—
|
3.5
|
||||||||||||||||||||||||
Purchase of treasury shares
|
(394,000
|
)
|
(8.4
|
)
|
—
|
—
|
—
|
(8.4
|
)
|
|||||||||||||||||||||||
Total comprehensive loss
|
—
|
—
|
—
|
—
|
(6.2
|
)
|
(88.0
|
)
|
—
|
(94.2
|
)
|
|||||||||||||||||||||
Sale of shares to non-controlling interest
|
—
|
—
|
—
|
—
|
—
|
—
|
2.0
|
2.0
|
||||||||||||||||||||||||
Other, net
|
—
|
—
|
—
|
(0.2
|
)
|
—
|
—
|
—
|
(0.2
|
)
|
||||||||||||||||||||||
Consolidated balance at December 31, 2017
|
95,264,500
|
4.8
|
(6.7
|
)
|
1,587.8
|
(6.2
|
)
|
(88.8
|
)
|
2.0
|
1,492.9
|
|||||||||||||||||||||
Issue of common shares
|
9,341,500
|
0.4
|
—
|
214.4
|
—
|
—
|
—
|
214.8
|
||||||||||||||||||||||||
Equity issuance costs
|
—
|
—
|
—
|
(3.4
|
)
|
—
|
—
|
—
|
(3.4
|
)
|
||||||||||||||||||||||
Issue of common shares
|
1,528,065
|
0.1
|
—
|
35.1
|
—
|
—
|
—
|
35.2
|
||||||||||||||||||||||||
Other transactions:
|
—
|
|||||||||||||||||||||||||||||||
Stock based compensation
|
—
|
—
|
3.7
|
—
|
—
|
—
|
3.7
|
|||||||||||||||||||||||||
Settlement of directors’ fees
|
14,286
|
—
|
0.2
|
(0.2
|
)
|
—
|
||||||||||||||||||||||||||
Purchase of treasury shares
|
(1,080,000
|
)
|
—
|
(19.7
|
)
|
—
|
—
|
—
|
—
|
(19.7
|
)
|
|||||||||||||||||||||
Total comprehensive income/(loss)
|
—
|
—
|
—
|
—
|
0.6
|
(190.5
|
)
|
(0.4
|
)
|
(190.3
|
)
|
|||||||||||||||||||||
Non-controlling interest
|
—
|
—
|
—
|
—
|
—
|
0.1
|
0.1
|
0.2
|
||||||||||||||||||||||||
Other, net
|
—
|
—
|
—
|
0.1
|
—
|
—
|
—
|
0.1
|
||||||||||||||||||||||||
Consolidated balance at December 31, 2018
|
105,068,351
|
5.3
|
(26.2
|
)
|
1,837.5
|
(5.6
|
)
|
(279.2
|
)
|
1.7
|
1,533.5
|
|||||||||||||||||||||
Issue of common shares
|
5,750,000
|
0.3
|
-
|
53.2
|
-
|
-
|
-
|
53.5
|
||||||||||||||||||||||||
Equity issuance costs
|
-
|
-
|
-
|
(4.3
|
)
|
-
|
-
|
-
|
(4.3
|
)
|
||||||||||||||||||||||
Other transactions:
|
||||||||||||||||||||||||||||||||
Stock based compensation
|
-
|
-
|
-
|
3.9
|
-
|
-
|
-
|
3.9
|
||||||||||||||||||||||||
Total comprehensive income/(loss)
|
-
|
-
|
-
|
-
|
5.6
|
(297.6
|
)
|
(1.5
|
)
|
(293.5
|
)
|
|||||||||||||||||||||
Other, net
|
-
|
-
|
-
|
0.9
|
-
|
0.1
|
-
|
1.0
|
||||||||||||||||||||||||
Consolidated balance at December 31, 2019
|
110,818,351
|
5.6
|
(26.2
|
)
|
1,891.2
|
-
|
(576.7
|
)
|
0.2
|
1,294.1
|
|
(a) |
Onerous contracts
|
Level 1. |
Quoted prices in active markets for identical assets or liabilities.
|
Level 2. |
Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be
corroborated by observable market data for substantially the full term of the assets or liabilities.
|
Level 3. |
Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.
|
In $ millions
|
Perfomex
|
OPEX
|
||||||
Operations:
|
||||||||
Revenue
|
49.8
|
68.1
|
||||||
Operating expenses
|
47.4
|
85.7
|
||||||
Net income (loss)
|
1.5
|
(19.8
|
)
|
|||||
Financial position:
|
||||||||
Cash
|
0.3
|
0.0
|
||||||
Total current assets
|
77.1
|
81.3
|
||||||
Total non-current assets
|
0.9
|
-
|
||||||
Total assets
|
78.0
|
81.3
|
||||||
Total current liabilities
|
76.5
|
101.1
|
||||||
Total non-current liabilities
|
-
|
-
|
||||||
Equity
|
1.5
|
(19.8
|
)
|
In $ millions
|
Perfomex
|
OPEX
|
Total
|
|||||||||
Equity invested
|
0.0
|
0.0
|
0.0
|
|||||||||
Funding provided by shareholder loan
|
30.7
|
0.1
|
30.8
|
|||||||||
Accumulated net gain (loss) 49% basis
|
0.7
|
(9.7
|
)
|
(9.0
|
)
|
|||||||
Guarantee provided
|
-
|
5.9
|
5.9
|
|||||||||
Total
|
31.4
|
(3.7
|
)
|
27.7
|
For the Years Ended
December 31, |
||||||||||||
(in $ millions)
|
2019
|
2018
|
2017
|
|||||||||
Middle East
|
43.2
|
41.1
|
-
|
|||||||||
Europe
|
114.7
|
75.1
|
-
|
|||||||||
West Africa
|
102.4
|
44.4
|
0.1
|
|||||||||
Mexico
|
50.0
|
-
|
-
|
|||||||||
South East Asia
|
23.8
|
4.3
|
-
|
|||||||||
Total
|
334.1
|
164.9
|
0.1
|
For the Years Ended December 31,
|
||||||||||||
(In % of operating revenues)
|
2019
|
2018
|
2017
|
|||||||||
ExxonMobil
|
15
|
%
|
-
|
-
|
||||||||
National Drilling Company (ADOC)
|
13
|
%
|
21
|
%
|
-
|
|||||||
Pan American Energy
|
13
|
%
|
-
|
-
|
||||||||
TAQA Bratani Limited
|
11
|
%
|
17
|
%
|
-
|
|||||||
Centrica North Sea Limited (Spirit Energy)
|
10
|
%
|
10
|
%
|
-
|
|||||||
BW Energy Gabon S.A.
|
4
|
%
|
13
|
%
|
-
|
|||||||
Total S.A
|
-
|
13
|
%
|
100
|
%
|
|||||||
Total
|
66
|
%
|
74
|
%
|
100
|
%
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Current contract assets
|
||||||||
Deferred mobilization and contract preparation cost
|
19.3
|
6.0
|
||||||
Accrued revenue
|
31.7
|
18.9
|
||||||
Acquired contract backlog
|
-
|
20.2
|
||||||
Current contract assets
|
51.0
|
45.1
|
||||||
Non-current contract assets
|
||||||||
Deferred mobilization and contract preparation cost
|
3.5
|
5.1
|
||||||
Non-current contract assets
|
3.5
|
5.1
|
||||||
Total contract assets
|
54.5
|
50.2
|
Contract assets
|
As of December 31,
|
|||||||
(In $ millions)
|
2019
|
2018
|
||||||
Net balance at January 1,
|
50.2
|
10.4
|
||||||
Additions to deferred costs, accrued revenue and acquired contract backlog
|
134.7
|
76.1
|
||||||
Amortization of deferred costs
|
(130.4
|
)
|
(36.3
|
)
|
||||
Total contract assets
|
54.5
|
50.2
|
(In $ millions)
|
Net proceeds /
recoverable
amount
|
Book value
on disposals
|
Gain
|
|||||||||
Total
|
8.5
|
2.1
|
6.4
|
(In $ millions)
|
Net proceeds /
recoverable
amount
|
Book value
on disposals
|
Gain
|
|||||||||
Total
|
37.6
|
18.8
|
18.8
|
For the Years Ended December 31,
|
||||||||||||
(In $ millions)
|
2019
|
2018
|
2017
|
|||||||||
Foreign exchange gain (loss)
|
0.7
|
(1.1
|
)
|
(0.3
|
)
|
|||||||
Other financial expenses
|
(9.2
|
)
|
(3.5
|
)
|
-
|
|||||||
Expensed loan fees related to settled debt
|
(5.6
|
)
|
-
|
-
|
||||||||
(Loss)/gain on forward contracts (note 18)
|
(29.2
|
)
|
(14.2
|
)
|
19.3
|
|||||||
Realized loss on marketable securities
|
(15.4
|
)
|
-
|
-
|
||||||||
Change in fair value of Call Spread (note 18)
|
(0.5
|
)
|
(25.7
|
)
|
-
|
|||||||
Total
|
(59.2
|
)
|
(44.5
|
)
|
19.0
|
For the Years Ended December 31,
|
||||||||||||
(In $ millions)
|
2019
|
2018
|
2017
|
|||||||||
Current tax
|
9.9
|
2.0
|
-
|
|||||||||
Change in deferred tax
|
1.3
|
0.5
|
-
|
|||||||||
Total
|
11.2
|
2.5
|
-
|
For the Years Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
Bermuda statutory income tax rate
|
0
|
%
|
0
|
%
|
0
|
%
|
||||||
Tax rates which are different from the statutory rate
|
(2.30
|
%)
|
(1.95
|
%)
|
-
|
|||||||
Adjustment attributable to prior years
|
0.00
|
%
|
1.17
|
%
|
-
|
|||||||
Change in valuation allowance
|
(1.29
|
%)
|
(0.26
|
%)
|
-
|
|||||||
Adjustments to uncertain tax positions
|
(0.30
|
%)
|
(0.28
|
%)
|
-
|
|||||||
Total
|
(3.89
|
%)
|
(1.32
|
%)
|
0
|
%
|
As of December 31,
|
||||||||||||
(In $ millions)
|
2019
|
2018
|
2017
|
|||||||||
Deferred tax assets
|
||||||||||||
Net operating losses
|
18.6
|
12.6
|
-
|
|||||||||
Excess of tax basis over book basis of Property, Plant and Equipment
|
66.9
|
75.8
|
-
|
|||||||||
Other
|
5.4
|
2.0
|
-
|
|||||||||
Deferred tax assets
|
90.9
|
90.4
|
-
|
|||||||||
Less: Valuation allowance
|
(89.7
|
)
|
(87.8
|
)
|
-
|
|||||||
Net deferred tax assets
|
1.3
|
2.6
|
-
|
|||||||||
Deferred tax liabilities
|
||||||||||||
Deferred tax liabilities
|
-
|
-
|
-
|
|||||||||
Net deferred tax asset (liabilities)
|
1.3
|
2.6
|
-
|
(In $ millions)
|
2019
|
2018
|
2017
|
|||||||||
Unrecognized tax benefits, excluding interest and penalties, at January 1,
|
4.8
|
-
|
-
|
|||||||||
Additions as a result of Paragon acquisition
|
-
|
4.8
|
-
|
|||||||||
Additions for tax positions of prior year
|
1.3
|
-
|
-
|
|||||||||
Reduction for tax positions of prior years
|
(0.8
|
)
|
-
|
-
|
||||||||
Unrecognized tax benefits, excluding interest and penalties, at December 31,
|
5.3
|
4.8
|
-
|
|||||||||
Interest and penalties
|
3.7
|
3.4
|
-
|
|||||||||
Unrecognized tax benefits, including interest and penalties, at December 31,
|
9.0
|
8.2
|
-
|
For the Years Ended December 31,
|
||||||||||||
2019
|
2018
|
2017
|
||||||||||
Basic loss per share
|
(2.78
|
)
|
(1.85
|
)
|
(1.70
|
)
|
||||||
Diluted loss per share
|
(2.78
|
)
|
(1.85
|
)
|
(1.70
|
)
|
||||||
Issued ordinary shares at the end of the year
|
112,278,065
|
106,528,065
|
95,658,500
|
|||||||||
Weighted average number of shares outstanding during the year
|
107,478,625
|
102,877,501
|
51,726,288
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Opening balance
|
63.4
|
39.1
|
||||||
Transfers to restricted cash
|
6.0
|
24.3
|
||||||
Total restricted cash
|
69.4
|
63.4
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Client rechargeable
|
5.6
|
5.1
|
||||||
VAT and other tax receivables
|
12.2
|
4.3
|
||||||
Deferred financing fee
|
2.4
|
3.2
|
||||||
Right-of-use lease asset
|
0.5
|
-
|
||||||
Other receivables
|
6.2
|
7.9
|
||||||
Total other current assets
|
26.9
|
20.5
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Opening balance
|
2,278.1
|
783.3
|
||||||
Additions
|
100.5
|
307.5
|
||||||
Transfers from newbuildings (note 13)
|
420.9
|
1,275.7
|
||||||
Depreciation and amortization
|
(99.7
|
)
|
(69.6
|
)
|
||||
Disposals
|
(2.1
|
)
|
(18.8
|
)
|
||||
Reclassification to asset held for sale
|
(3.0
|
)
|
-
|
|||||
Impairment
|
(11.4
|
)
|
-
|
|||||
Total jack-up rigs
|
2,683.3
|
2,278.1
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Middle East
|
40.7
|
42.0
|
||||||
Europe
|
297.3
|
320.0
|
||||||
West Africa
|
646.1
|
203.0
|
||||||
Mexico
|
721.1
|
-
|
||||||
South East Asia
|
978.1
|
1,713.1
|
||||||
Total
|
2,683.3
|
2,278.1
|
For the Years Ended December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Opening balance
|
361.8
|
642.7
|
||||||
Additions
|
302.0
|
971.4
|
||||||
Capitalized interest
|
18.5
|
23.4
|
||||||
Transfers to jack-up rigs (note 12)
|
(420.9
|
)
|
(1,275.7
|
)
|
||||
Total newbuildings
|
261.4
|
361.8
|
Rig
|
Delivery date
|
Delivery
financing ($ million) |
Shipyard
|
First
instalment
($ million)
|
Onerous
contract
allocated
|
Final
instalment
($ million)
|
Capitalized
cost
|
Transferrers to
jack-up rigs
|
||||||||||||||||||
2019
|
||||||||||||||||||||||||||
Njord
|
January -19
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
2.7
|
145.5
|
||||||||||||||||||
Thor
|
May - 19
|
120.0
|
Keppel
|
-
|
122.1
|
-
|
122.1
|
|||||||||||||||||||
Hermod
|
December - 19
|
90.9
|
Keppel
|
57.6
|
-
|
90.9
|
4.8
|
153.3
|
||||||||||||||||||
Total
|
113.4
|
-
|
300.0
|
7.5
|
420.9
|
|||||||||||||||||||||
2018
|
||||||||||||||||||||||||||
Saga*
|
January – 18
|
-
|
Keppel
|
100.1
|
(38.0
|
)
|
72.5
|
0.3
|
134.9
|
|||||||||||||||||
Gerd
|
January – 18
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
0.3
|
143.1
|
||||||||||||||||||
Gersemi
|
February – 18
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
0.4
|
143.2
|
||||||||||||||||||
Grid
|
April – 18
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
0.4
|
143.2
|
||||||||||||||||||
Gunnlod
|
June – 18
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
1.5
|
144.3
|
||||||||||||||||||
Skald
|
June – 18
|
-
|
Keppel
|
100.1
|
(39.2
|
)
|
72.5
|
0.7
|
134.1
|
|||||||||||||||||
Groa
|
July – 18
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
1.3
|
144.1
|
||||||||||||||||||
Gyme
|
September – 18
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
1.4
|
144.2
|
||||||||||||||||||
Natt
|
October – 18
|
87.0
|
PPL
|
55.8
|
-
|
87.0
|
1.8
|
144.6
|
||||||||||||||||||
Total
|
590.8
|
(77.2
|
)
|
754.0
|
8.1
|
1,275.7
|
As of December 31, 2019
|
||||
(In $ millions)
|
||||
Operating leases
|
||||
Operating leases right-of-use assets
|
2.7
|
|||
Current operating lease liabilities
|
3.4
|
|||
Long-term operating lease liabilities
|
6.5
|
Components of lease cost is comprised of the following:
|
For the year ended
December 31, 2019
|
|||
(In $ millions)
|
||||
Operating lease cost
|
21.2
|
|||
Short-term lease cost
|
0.5
|
|||
Total lease cost
|
21.7
|
|||
Sublease income
|
0.7
|
Supplemental cash flow information related to leases was as follows:
|
For the year ended
December 31, 2019
|
|||
(In $ millions)
|
||||
Cash payments for onerous lease contracts
|
3.6
|
|||
Operating cash flows from operating leases
|
0.9
|
|||
Total lease payments
|
4.5
|
|||
Weighted average remaining lease term for operating leases (years)
|
1.18
|
|||
Weighted average discount rate for operating leases
|
6.38
|
%
|
Maturities of lease liabilities were as follows:
|
As of December 31, 2019
|
|||
(In $ millions)
|
||||
2020
|
5.1
|
|||
2021
|
4.2
|
|||
2022
|
1.4
|
|||
2023
|
0.4
|
|||
2024
|
0.4
|
|||
Thereafter
|
1.4
|
|||
Total lease payments
|
12.9
|
|||
Less interest
|
(3.0
|
)
|
||
Present value of lease liability
|
9.9
|
Maturities of lease liabilities were as follows:
|
As of December 31, 2018
|
|||
(In $ millions)
|
||||
2019
|
4.6
|
|||
2020
|
3.6
|
|||
2021
|
3.6
|
|||
2022
|
0.5
|
|||
2023
|
-
|
|||
Thereafter
|
-
|
|||
Total lease payments
|
12.3
|
(In $ millions)
|
March 29,
2018
|
|||
Cash and cash equivalents
|
41.7
|
|||
Restricted cash
|
4.2
|
|||
Trade receivables
|
31.0
|
|||
Other current assets (including acquired contract backlog of $31.6 million)
|
53.4
|
|||
Jack-up drilling rigs
|
246.0
|
|||
Assets held for sale
|
15.0
|
|||
Property, plant and equipment
|
16.1
|
|||
Other long-term assets (including acquired contract backlog of $12.8 million)
|
24.8
|
|||
Trade payables
|
(10.5
|
)
|
||
Accruals and other current liabilities
|
(40.9
|
)
|
||
Long term debt
|
(87.7
|
)
|
||
Other non-current liabilities
|
(13.7
|
)
|
||
Total
|
279.4
|
|||
Fair value of consideration satisfied by cash:
|
||||
Payment upon completion by the Company
|
240.0
|
|||
Payment to non-controlling interest
|
1.3
|
|||
Total
|
241.3
|
|||
Total fair value of purchase consideration
|
241.3
|
|||
Fair value of net assets acquired
|
279.4
|
|||
Bargain gain
|
(38.1
|
)
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Non-current
|
||||||||
Opening balance
|
7.0
|
-
|
||||||
Reclassification of onerous lease to lease liability (ASU 842 adoption)
|
(7.0
|
)
|
-
|
|||||
Onerous office lease (ii)
|
-
|
7.0
|
||||||
Non-current restructuring provision (a)
|
-
|
7.0
|
||||||
Current
|
||||||||
Opening balance
|
4.9
|
-
|
||||||
Severance (i)
|
1.7
|
22.8
|
||||||
Severance payments (i)
|
(1.3
|
)
|
(21.1
|
)
|
||||
Onerous office lease (ii)
|
-
|
5.2
|
||||||
Reclassification of onerous lease to lease liability (ASU 842 adoption)
|
(3.2
|
)
|
-
|
|||||
Lease payments
|
-
|
(2.0
|
)
|
|||||
Current restructuring provision (b)
|
0.4
|
4.9
|
||||||
Total (a+b)
|
0.4
|
11.9
|
(i) |
Severance payment
|
(ii) |
Office lease
|
Pro forma for the Year
Ended December 31,
|
||||||||
(In $ millions)
|
2018
(unaudited)
|
2017
(unaudited)
|
||||||
Revenue
|
192.1
|
185.5
|
||||||
Net income (loss)
|
(297.5
|
)
|
738.0
|
Name of Acquired Entities
|
New Name of Acquired Entities
|
|
Constellation II Limited
|
—
|
|
GlobalSantaFe West Africa Drilling Limited
|
Borr Baug Limited
|
|
Transocean Andaman Limited
|
Borr Idun Limited
|
|
Transocean Ao Thai Limited
|
Borr Mist Limited
|
|
Constellation Rig Owner I Limited
|
Borr Atla Limited
|
|
Transocean Drilling Resources Limited
|
Borr Brage Limited
|
|
Transocean Drilling Services Offshore Inc.
|
Borr Jack-Up XIV Inc.
|
|
Transocean Siam Driller Limited
|
Borr Odin Limited
|
May 31,
2017
|
||||
(In $ millions)
|
||||
Jack-up drilling rigs
|
547.7
|
|||
Current assets
|
0.5
|
|||
Onerous contract (Note 22)
|
(223.7
|
)
|
||
Total
|
324.5
|
|||
Fair value of consideration satisfied by cash:
|
||||
Deposit on March 15, 2017
|
32.0
|
|||
Payment upon completion (May 31, 2017)
|
288.7
|
|||
Balancing payment
|
3.8
|
|||
Total
|
324.5
|
|||
Total fair value of purchase consideration
|
324.5
|
|||
Fair value of net assets acquired
|
324.5
|
|||
Goodwill
|
-
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Opening balance
|
35.2
|
20.7
|
||||||
Purchase of marketable securities
|
5.9
|
13.9
|
||||||
Sale of marketable securities
|
(31.3
|
)
|
-
|
|||||
Unrealized gain on marketable securities
|
5.6
|
0.6
|
||||||
Realized loss on marketable securities
|
(15.4
|
)
|
-
|
|||||
Total marketable securities
|
-
|
35.2
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Other receivables
|
-
|
0.5
|
||||||
Deferred tax asset
|
1.3
|
2.6
|
||||||
Call Spread (see note 18)
|
2.3
|
2.8
|
||||||
Tax refunds
|
0.2
|
4.2
|
||||||
Right-of-use lease asset, non-current
|
2.2
|
-
|
||||||
Prepaid fees
|
9.2
|
9.5
|
||||||
Total other long-term assets
|
15.2
|
19.6
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Accrued payroll and severance
|
6.2
|
3.1
|
||||||
Operating lease liability, current
|
3.4
|
-
|
||||||
Deferred mobilization revenue
|
5.6
|
-
|
||||||
Other current liabilities
|
4.5
|
-
|
||||||
Total other current liabilities
|
19.7
|
3.1
|
As of December 31, 2019
(In $ millions) |
Carrying
value
|
Fair value
|
Principal
|
Back end
fee
|
1-5
years
|
|||||||||||||||
Hayfin Loan Facility
|
192.3
|
195.0
|
195.0
|
-
|
195.0
|
|||||||||||||||
Syndicated Senior Secured Credit Facilities
|
264.2
|
270.0
|
270.0
|
-
|
270.0
|
|||||||||||||||
New Bridge Revolving Credit Facility
|
25.0
|
25.0
|
25.0
|
-
|
25.0
|
|||||||||||||||
Convertible bonds
|
346.4
|
260.5
|
350.0
|
-
|
350.0
|
|||||||||||||||
PPL Newbuild Financing
|
790.0
|
782.6
|
753.3
|
29.3
|
782.6
|
|||||||||||||||
Keppel Newbuild Financing
|
91.9
|
90.9
|
86.4
|
4.5
|
90.9
|
|||||||||||||||
Total
|
1,709.8
|
1,624.0
|
1,679.7
|
33.8
|
1,713.5
|
As of December 31, 2018
(In $ millions) |
Carrying
value
|
Fair value
|
Principal
|
Back end
fee
|
Maturities
years
|
|||||||||||||||
$200 million senior secured revolving loan facility
|
130.0
|
130.0
|
130.0
|
—
|
130.0
|
|||||||||||||||
Convertible bonds
|
346.5
|
287.9
|
350.0
|
—
|
350.0
|
|||||||||||||||
Delivery financing from PPL
|
698.1
|
695.7
|
669.6
|
26.1
|
695.7
|
|||||||||||||||
Total
|
1,174.6
|
1,113.6
|
1,149.6
|
26.1
|
1,175.7
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Onerous lease commitments
|
-
|
10.2
|
||||||
Onerous rig construction contracts acquired
|
71.3
|
71.3
|
||||||
Total onerous contracts
|
71.3
|
81.5
|
As at December 31, 2019
|
As at December 31, 2018
|
|||||||||||||||
(In $ millions)
|
Delivery
instalment
|
Back-end
fee
|
Delivery
instalment
|
Back-end
fee
|
||||||||||||
Delivery instalments for jack-up drilling rigs
|
793.8
|
18.0
|
963.9
|
25.8
|
(In $ millions)
|
Less than
1 year |
1–3 years
|
3–5 years
|
More than
5 years |
Total
|
|||||||||||||||
Delivery instalments for jack-up rigs
|
793.8
|
-
|
-
|
-
|
793.8
|
(In $ millions)
|
2020
|
2021
|
2022
|
2023
|
2024
|
Thereafter
|
Total
|
|||||||||||||||||||||
Minimum lease payments
|
5.1
|
4.2
|
1.4
|
0.4
|
0.4
|
1.4
|
12.9
|
(In $ millions)
|
2020
|
2021
|
Total
|
|||||||||
Surety bonds and other guarantees
|
70.1
|
-
|
70.1
|
|||||||||
Performance guarantee to OPEX (see note 3)
|
-
|
5.9
|
5.9
|
|||||||||
Total
|
70.1
|
5.9
|
76.0
|
For the Years Ended December 31,
|
||||||||||||
(In $ millions)
|
2019
|
2018
|
2017
|
|||||||||
Share-based payment charge
|
3.9
|
3.7
|
1.8
|
|||||||||
Total shared based compensation
|
3.9
|
3.7
|
1.8
|
2019 | 2018 |
2017
|
||||||||||||||||||||||
Number and weighted
average exercise price
stock options:
|
Number
|
Weighted
Average
Exercise Price
(in $) |
Number
|
Weighted
Average
Exercise Price
(in $) |
Number
|
Weighted
Average
Exercise
Price
(in $)
|
||||||||||||||||||
Outstanding at January 1
|
2,615.000
|
22.0
|
1,711,000
|
18.0
|
-
|
-
|
||||||||||||||||||
Granted during the year
|
460,000
|
17.5
|
1,664,000
|
24.0
|
1,711,000
|
18.0
|
||||||||||||||||||
Forfeited during the year
|
(717,500
|
)
|
22.34
|
(760,000
|
)
|
18.0
|
-
|
-
|
||||||||||||||||
Outstanding at December 31
|
2,357,500
|
20.92
|
2,615,000
|
22.0
|
1,711,000
|
18.0
|
||||||||||||||||||
Exercisable at December 31
|
810,999
|
20.04
|
333,666
|
18.0
|
-
|
-
|
Following input is used when calculating fair value:
|
2019
|
2018
|
2017
|
|||||||||
Expected future volatility
|
32
|
%
|
30
|
%
|
25
|
%
|
||||||
Expected dividend rate
|
-
|
-
|
-
|
|||||||||
Risk-free rate
|
2.0
|
%
|
2.1% - 2.9
|
%
|
1.5% - 2.0
|
%
|
||||||
Expected life after vesting
|
2 years
|
2 years
|
2 years
|
As at December 31, 2019
|
As at December 31, 2018
|
|||||||||||||||||||
(In $ millions)
|
Hierarchy
|
Fair value
|
Carrying
value
|
Fair value
|
Carrying value
|
|||||||||||||||
Assets
|
||||||||||||||||||||
Cash and cash equivalents
|
1
|
59.1
|
59.1
|
27.9
|
27.9
|
|||||||||||||||
Restricted cash
|
1
|
69.4
|
69.4
|
63.4
|
63.4
|
|||||||||||||||
Marketable securities – non-current
|
1
|
-
|
-
|
31.0
|
31.0
|
|||||||||||||||
Marketable securities – current
|
1
|
-
|
-
|
4.2
|
4.2
|
|||||||||||||||
Trade receivables
|
1
|
40.2
|
40.2
|
25.1
|
25.1
|
|||||||||||||||
Tax retentions receivable
|
1
|
11.6
|
11.6
|
11.6
|
11.6
|
|||||||||||||||
Other current assets (excluding deferred costs)
|
1
|
22.7
|
22.7
|
17.3
|
17.3
|
|||||||||||||||
Due from related parties
|
1
|
8.6
|
8.6
|
-
|
-
|
|||||||||||||||
Forward contracts (see note 18)
|
2
|
27.9
|
27.9
|
50.3
|
50.3
|
|||||||||||||||
Liabilities
|
||||||||||||||||||||
Long-term debt
|
2
|
1,624.0
|
1,709.8
|
1,113.6
|
1,174.6
|
|||||||||||||||
Trade payables
|
1
|
14.1
|
14.1
|
9.6
|
9.6
|
|||||||||||||||
Accruals and other current liabilities
|
1
|
99.6
|
99.6
|
71.0
|
71.0
|
|||||||||||||||
Forward contracts (see note 18)
|
2
|
92.2
|
92.2
|
85.4
|
85.4
|
|||||||||||||||
Guarantees issued to equity method investments (see note 3)
|
3
|
5.9
|
5.9
|
-
|
-
|
As of December 31, 2019
|
As of December 31, 2018
|
|||||||||||||||
All shares are common shares of $0.05 par value each
|
Shares
|
$ million
|
Shares
|
$ million
|
||||||||||||
Authorized share capital
|
137,500,000
|
6.9
|
125,000,000
|
6.3
|
||||||||||||
Issued and fully paid share capital
|
112,278,065
|
5.6
|
106,528,065
|
5.3
|
||||||||||||
Treasury shares held by the company
|
1,459,714
|
(0.1
|
)
|
1,459,714
|
(0.1
|
)
|
||||||||||
Outstanding shares in issue
|
110,818,351
|
5.6
|
105,068,351
|
5.3
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Benefit obligation at beginning of period
|
140.7
|
-
|
||||||
Benefit obligation acquired through business combination
|
-
|
147.2
|
||||||
Interest cost
|
1.9
|
1.6
|
||||||
Actuarial loss
|
30.4
|
4.2
|
||||||
Benefits paid
|
(1.5
|
)
|
(1.0
|
)
|
||||
Foreign exchange rate changes
|
(2.5
|
)
|
(11.3
|
)
|
||||
Benefit obligation at end of period
|
169.0
|
140.7
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Fair value of plan assets at beginning of period
|
141.0
|
-
|
||||||
Plan assets acquired through business combination
|
-
|
146.5
|
||||||
Actual return on plan assets
|
32.3
|
5.8
|
||||||
Employer contribution
|
-
|
1.0
|
||||||
Benefits paid
|
(1.5
|
)
|
(1.0
|
)
|
||||
Plan participants’ contributions
|
-
|
0.1
|
||||||
Foreign exchange rate changes
|
(2.5
|
)
|
(11.2
|
)
|
||||
Fair value of plan assets at end of period
|
169.3
|
141.0
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Funded status
|
0.3
|
0.3
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Other assets – noncurrent
|
0.3
|
0.3
|
||||||
Net pension asset
|
0.3
|
0.3
|
||||||
Net amount recognized
|
0.3
|
0.3
|
For the Years Ended December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Interest cost
|
1.9
|
1.6
|
||||||
Expected return on plan assets
|
(1.9
|
)
|
(1.6
|
)
|
||||
Net pension expense
|
-
|
-
|
As of December 31,
|
||||||||
(In $ millions)
|
2019
|
2018
|
||||||
Projected benefit obligation
|
169.0
|
140.7
|
||||||
Accumulated benefit obligation
|
169.0
|
140.7
|
||||||
Fair value of plan assets
|
169.3
|
141.0
|
As of December 31,
|
||
Weighted Average Assumptions Used to Determine Benefit Obligations
|
2019
|
2018
|
Discount rate
|
0.54% to 0.42%
|
1.16% to 1.50%
|
Rate of compensation increase
|
Not applicable
|
Not applicable
|
Weighted Average Assumptions Used to Determine Net Periodic Benefit Cost
|
January 1 2019 to
December 31, 2019 |
March 29, 2018 to
December 31, 2018 |
|
Discount rate
|
0.54% to 0.42%
|
1.16% to 1.50%
|
|
Expected long-term return on plan assets
|
0.54% to 0.42%
|
1.16% to 1.50%
|
|
Rate of compensation increase
|
Not applicable
|
Not applicable
|
Estimated Fair Value Measurements
|
||||||||
(In $ millions)
|
Carrying
Amount
|
Significant Unobservable
Inputs
(Level 3)
|
||||||
December 31, 2019
|
||||||||
Guaranteed insurance contracts
|
169.0
|
169.0
|
||||||
Other
|
0.3
|
0.3
|
||||||
Total
|
169.3
|
169.3
|
As of December 31,
|
||||||||
2019
|
2018
|
|||||||
Balance as of January 1,
|
$
|
141.0
|
$
|
—
|
||||
Acquisition of plan assets
|
-
|
146.5
|
||||||
Assets sold/benefits paid
|
(1.5
|
)
|
0.1
|
|||||
Return on plan assets
|
32.3
|
5.8
|
||||||
Foreign exchange rate changes
|
(2.5
|
)
|
(11.3
|
)
|
||||
Balance as of December 31,
|
169.3
|
141.0
|
Payments by Period
|
||||||||||||||||||||||||||||
Total
|
2020
|
2021
|
2022
|
2023
|
2024
|
Five Years Thereafter
|
||||||||||||||||||||||
Estimated benefit payments
|
26.8
|
1.6
|
1.8
|
1.9
|
2.2
|
2.5
|
16.8
|
Title of each class
|
Trading symbol(s)
|
Name of each exchange on which registered
|
||
Common shares of par value $0.05 per share
|
BORR
|
New York Stock Exchange
|
|
• |
we will not be able to pay our liabilities as they fall due; or
|
|
• |
the realizable value of our assets is less than our liabilities.
|
|
• |
If he resigns his office by notice in writing delivered to the registered office or tendered at a meeting of the Board;
|
|
• |
If he becomes of unsound mind or a patient for any purpose of any statute or applicable law relating to mental health and the Board resolves that his office is vacated;
|
|
• |
If he becomes bankrupt or compounds with his creditors;
|
|
• |
If he is prohibited by law from being a Director; or
|
|
• |
If he ceases to be a Director by virtue of the Companies Act or is removed from office pursuant to the company’s bye-laws.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
Clause
|
|
Page |
1
|
DEFINITIONS AND INTERPRETATION
|
3
|
2
|
WAIVERS AND DEADLINES
|
4
|
3
|
AMENDMENT AND RESTATEMENT
|
5
|
4
|
REPRESENTATIONS
|
5
|
5
|
CONDITIONS SUBSEQUENT
|
5
|
6
|
GUARANTEE AND SECURITY CONFIRMATION
|
5
|
7
|
RELEASE
|
6
|
8
|
FINANCE DOCUMENT
|
6
|
9
|
DISCLOSURE
|
6
|
10
|
EXPENSES
|
6
|
11
|
COUNTERPARTS
|
7
|
12
|
GOVERNING LAW
|
7
|
13
|
JURISDICTION
|
7
|
14
|
SERVICE OF PROCESS
|
7
|
SCHEDULE 1
|
||
CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT
|
8
|
|
SCHEDULE 2
|
||
FORM OF EFFECTIVE DATE NOTICE
|
12
|
|
SCHEDULE 3
|
||
AMENDED AND RESTATED FACILITIES AGREEMENT
|
13
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
(1) |
BORR DRILLING LIMITED, of S.E. Pearman Building, 2nd Fl., 9 Par-la-Ville Road, Hamilton HM 11, Bermuda, with company registration number 51741, as borrower (the "Borrower");
|
(2) |
THE COMPANIES listed in Part I of Schedule I of the Amended and Restated Facilities Agreement as original guarantors (the "Original Guarantors");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 of the Amended and Restated Facilities Agreement as original lenders (the "Original Lenders");
|
(4) |
DANSKE BANK A/S and DNB BANK ASA, as coordinators (the "Coordinators");
|
(5) |
DANSKE BANK A/S, DNB BANK ASA, and CITIGROUP GLOBAL MARKETS LIMITED as hedging banks (the "Hedging Banks");
|
(6) |
DANSKE BANK A/S, DNB BANK ASA, and CITIGROUP GLOBAL MARKETS LIMITED as bookrunners and mandated lead arrangers (the "Arrangers");
|
(7) |
DNB BANK ASA as original issuing bank (the "Original Issuing Bank"); and
|
(8) |
DNB BANK ASA, Dronning Eufemias gate 30, 0191 Oslo, Norway, as facility agent (the "Agent").
|
1 |
DEFINITIONS AND INTERPRETATION
|
(a) |
A term defined in the Amended and Restated Facilities Agreement has the same meaning in this Agreement, unless expressly defined herein or otherwise required by the context.
|
(b) |
In this Agreement:
|
(i) |
the later to occur of (A) the date on which the Agent notifies the Borrower in writing (in substantially the same form as the Effective Date Notice) that it has received all the documents and other evidence set out in Part III of
Schedule 1 in a form and substance satisfactory to it (acting reasonably) or (B) the date of which the "Conditions Subsequent Effective Date" (as defined in the Back Stop Facility Amendment and Restatement Agreement) occurs in respect of
the Back Stop Facility; or
|
|
(ii) |
such other date as informed in writing by the Agent to the Borrower.
|
|
(i) |
the later to occur of (A) date on which the Agent notifies the Borrower in writing (in substantially the same form as the Effective Date Notice) that it has received all the documents and other evidence set out in Part I of Schedule 1 in
a form and substance satisfactory to it (acting reasonably); or (B) the date of which the "Documentation Effective Date" (as defined in the Back Stop Facility Amendment and Restatement Agreement) occurs in respect of the Back Stop Facility;
or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
such earlier date as informed in writing by the Agent to the Borrower.
|
|
(i) |
the date on which the Agent notifies the Borrower in writing (in substantially the same form as the Effective Date Notice) that it has received all the documents and other evidence set out in Part II of Schedule 1 in a form and substance
satisfactory to it (acting reasonably); or (B) the date of which the "Effective Date" (as defined in the Back Stop Facility Amendment and Restatement Agreement) occurs in respect of the Back Stop Facility; or
|
|
(ii) |
such earlier date as informed in writing by the Agent to the Borrower.
|
(c) |
The provisions of Clause 1.2 (Construction) of the Amended and Restated Facilities Agreement apply to this Agreement as though they were set out herein in their entirety, except that references to
the Amended and Restated Facilities Agreement shall be construed as references to this Agreement.
|
2 |
WAIVERS AND DEADLINES
|
(a) |
Paragraph (iv) of the definition of “Outside Date” as set forth in the Waiver Letter shall be extended to the earlier to occur of (i) the Effective Date; and (ii) the earlier of (A) 16:00 (CEST) on the date falling one Business Day after
the "Escrow Release Deadline" as set forth in the Waiver Letter and (B) 16:00 (CEST) on 9 June 2020, or such later time and date as the Agent (on behalf of the Majority Lenders) may agree.
|
(b) |
The other provisions of the Waiver Letter shall remain in full force and effect and as though they were set out herein in their entirety until the earlier of (i) the Effective Date; and (ii) the earlier of (A) 16:00 (CEST) on the date
falling one Business Day after the "Escrow Release Deadline" as set forth in the Waiver Letter and (B) 16:00 (CEST) on 9 June 2020, or such later time and date as the Agent (on behalf of the Majority Lenders) may agree.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
(c) |
If the Effective Date has not occurred on or before 16:00 (CEST) on 9 June 2020, or such later time and date as the Agent (on behalf of the Majority Lenders) may agree, the amendment and restatement of the Original Facilities Agreement
contemplated by this Agreement shall not take effect.
|
(d) |
From the Effective Date the Lenders grant a permanent waiver in respect of:
|
|
(i) |
any Default or Event of Default that would exist on the expiry of the Extended Waiver Period (as defined in the Waiver Letter) in respect of the waivers granted pursuant to paragraphs 3 (a), (b) and (c) of the Waiver Letter provided
only, that each applicable Other Counterparty (as defined in the Waiver Letter) has provided a permanent waiver on substantially the same terms; and
|
|
(ii) |
the Event of Default referred to in the Waiver Letter in respect of the payment of the Bond Interest Instalment (as defined in the Waiver Letter).
|
3 |
AMENDMENT AND RESTATEMENT
|
4 |
REPRESENTATIONS
|
5 |
CONDITIONS SUBSEQUENT
|
(a) |
Each Obligor shall use its best commercial endeavours to ensure that the Conditions Subsequent Effective Date shall occur no later than the Effective Date and, in any event, shall procure that the Conditions Subsequent Effective Date
occurs no later than 23:59 (CEST) on 12 June 2020 (or, in each case, such later time and date as the Agent (on behalf of the Majority Lenders) may agree (such time and date, the "Conditions Subsequent
Deadline").
|
(b) |
If the Conditions Subsequent Effective Date has not occurred by the Conditions Subsequent Deadline then an immediate Event of Default shall be deemed to occur under the Amended and Restated Facilities Agreement.
|
6 |
GUARANTEE AND SECURITY CONFIRMATION
|
|
(a) |
approves and agrees to:
|
|
(i) |
the amendment and restatement of the Original Facilities Agreement; and
|
|
(ii) |
the amendment of the relevant Security Documents contemplated by Part III of Schedule 1,
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
confirms and undertakes that:
|
|
(i) |
all its obligations and liabilities as a Guarantor under the Original Facilities Agreement (and with effect from and including the Effective Date, the Amended and Restated Facilities Agreement); and
|
|
(ii) |
the Security created or purporting to be created by it under any Security Document,
|
7 |
RELEASE
|
8 |
FINANCE DOCUMENT
|
9 |
DISCLOSURE
|
10 |
EXPENSES
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the negotiation, execution, delivery and (if applicable) registration of; and
|
|
(b) |
any amendment, waiver, consent or suspension of rights (or any proposal for any of the foregoing) requested or made by or on behalf of any Obligor in relation to,
|
11 |
COUNTERPARTS
|
12 |
GOVERNING LAW
|
13 |
JURISDICTION
|
|
(a) |
The courts of Norway, with the Oslo district court as the court of first instance, have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence,
validity or termination of this Agreement (a "Dispute").
|
|
(b) |
This Clause 13 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the
Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
14 |
SERVICE OF PROCESS
|
|
(a) |
irrevocably appoints Borr Drilling Management AS as its agent for service of process in relation to any proceedings before the Norwegian courts in connection with any Finance Document; and
|
|
(b) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
1. |
In respect of each Obligor, copies of:
|
|
(i) |
a certificate of an authorised signatory of each Obligor:
|
|
(A) |
certifying that each of its memorandum and articles of association (or other organisational documents), certificate of incorporation (or equivalent, and including any certificates of incorporation on change of name), and if applicable,
its register of members, register of directors and officers and register of mortgages and charges provided in connection with the fourth supplemental agreement to the Original Facilities Agreement dated 23 December 2019 is correct, complete
and in full force and effect and has not been amended or superseded as at a date no earlier than Documentation Effective Date or, where any such document has been amended or superseded, attaching the up-to- date document and confirming that
it has not been amended or superseded confirming that this is correct, complete, up-to-date and in full force and effect;
|
|
(B) |
in the case of any Cayman Islands Obligor, attaching a certificate of good standing issued by the Registrar of Companies of the Cayman Islands dated no earlier than 30 days prior to the date of this Agreement;
|
|
(C) |
stating its directors and officers (or attaching its register of directors and officers);
|
|
(D) |
(other than for the Borrower) stating its shareholders (or attaching its register of members);
|
|
(E) |
attaching copies of the documents listed at paragraphs (i), (ii), (iii) (if applicable and in respect of any applicable register of mortgages and charges, updated to include particulars of any applicable Security Document), confirming
that such documents have not been amended or revoked and remain in full force and effect at the date of the certificate;
|
|
(F) |
stating that no licences, authorisations, approvals or consents are required in connection with the execution, delivery, performance or validity of the Finance Documents to which it is a party; and
|
|
(G) |
confirming that securing/guaranteeing of the Loans would not cause any borrowing, guarantee, security or similar limit binding on that Obligor to be exceeded.
|
|
(ii) |
the resolutions duly passed by the board of directors, and to the extent required by applicable law, the shareholder of that Obligor evidencing the approval of the terms of and the transactions contemplated by the Finance Documents to
which it is a party and authorising to execute, deliver and perform this Agreement and the other Finance Documents to which it is a party;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(iii) |
if not included in the resolutions referred to in paragraph (ii) above (and to the extent applicable), a power of attorney to its representatives for the execution and registration of this Agreement and the other Finance Documents to
which it is a party;
|
|
(iv) |
if applicable, the resolutions duly passed by the Borrower, or relevant intermediate holding company as sole shareholder of each of the Guarantors amending the memorandum and articles of association of the relevant Guarantor amending the
transfer, forfeiture and lien provisions on a form and substance satisfactory to the Agent (on behalf of the Finance Parties);
|
|
(v) |
such other documents and evidence as the Agent (or any Lender through the Agent) shall from time to time require, based on law and regulations applicable from time to time and the Lenders’ own internal guidelines applicable from time to
time to identify the Obligor and any other identification or similar document any Lender may reasonably require in order to satisfy any “know your customer” requirements applicable to such Lender;
|
|
(vi) |
a specimen of the signature of each person authorised by the resolutions referred to in paragraph (v) above who will sign Finance Documents;
|
2. |
This Agreement, duly signed by all Parties.
|
3. |
Evidence that the transactions contemplated by each of the term sheets from each respective other stakeholder appended to the Term Sheet at schedule 2 have been implemented and are effective subject only to the occurrence of the
Documentation Effective Date, the Equity Raise and (if applicable) the payment of the relevant deferred amounts referred to in paragraph 4(a) of the Waiver Letter.
|
4. |
Evidence that all fees, costs and expenses due and payable under the Original Facilities Agreement, the Waiver Letter and/or this Agreement on or before the Effective Date have been paid or will be paid on or before the Effective Date.
|
5. |
Where requested, legal opinion certificates in form and substance satisfactory to the Agent’s lawyers in connection with the legal opinions referred to in paragraph 7 below.
|
6. |
A registered agent's certificate in form and substance satisfactory to the Agent’s lawyers in the British Virgin Islands, issued by the registered agent of an Obligor incorporated in the British Virgin Islands (attaching to it certified
copies of such Obligor's register of members, director and charges), dated no earlier than 30 days prior to the date of the legal opinion of Ogier to be issued as a condition precedent pursuant to paragraph 7 below.
|
7. |
Favourable legal opinions in form and substance satisfactory to the Agent from lawyers appointed by the Agent on matters concerning all Relevant Jurisdictions.
|
8. |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
1. |
Evidence that the Documentation Effective Date has occurred.
|
2. |
Evidence that the Equity Release has occurred.
|
3. |
Evidence of payment of all Deferred Payments (as defined in the Waiver Letter) and any other overdue amounts under the Original Facilities Agreement.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
1. |
In respect of each Obligor a certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in Schedule 1, Part I, item 1 of the Agreement is correct, complete and in full force and
effect and has not been amended or superseded as at a date no earlier than the Conditions Subsequent Effective Date.
|
2. |
In respect of each Rig an amendment to the Mortgage in respect of that Rig duly executed by the applicable Rig Owner and registered in the applicable Ship Registry.
|
3. |
Where requested, legal opinion certificates in form and substance satisfactory to the Agent's lawyers in connection with the legal opinions referred to in paragraph 5 below.
|
4. |
A registered agent's certificate in form and substance satisfactory to the Agent’s lawyers in the British Virgin Islands, issued by the registered agent of an Obligor incorporated in the British Virgin Islands (attaching to it certified
copies of such Obligor's register of members, director and charges), dated no earlier than 30 days prior to the date of the legal opinion of Ogier to be issued as a condition precedent pursuant to paragraph 5 below.
|
5. |
Favourable legal opinions in form and substance satisfactory to the Agent from lawyers appointed by the Agent on matters concerning all Relevant Jurisdictions.
|
6. |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
7. |
Evidence that all fees, costs and expenses due and payable under under the Original Facilities Agreement, the Waiver Letter, the Amended and Restated Facilities Agreement and/or this Agreement on or before the Conditions Subsequent
Effective Date have been paid or will be paid on or before the Conditions Subsequent Effective Date.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By: |
|
|
By: |
|
|
|
|
|
|
|
|
Name: |
|
|
Name: |
|
|
|
|
|
|
|
|
Title: |
|
|
Title: |
|
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
1
|
INTERPRETATION
|
4
|
2
|
THE FACILITIES
|
30
|
3
|
PURPOSE AND APPLICATION
|
31
|
4
|
CONDITIONS OF UTILISATION
|
31
|
5
|
UTILISATION – LOANS
|
32
|
6
|
UTILISATION – TRADE FINANCE INSTRUMENTS
|
34
|
7
|
TRADE FINANCE INSTRUMENTS
|
38
|
8
|
REPAYMENT
|
40
|
9
|
PREPAYMENT AND CANCELLATION
|
42
|
10
|
ESTABLISHMENT OF THE INCREMENTAL AMOUNT
|
46
|
11
|
INTEREST
|
50
|
12
|
INTEREST PERIODS
|
51
|
13
|
CHANGES TO THE CALCULATION OF INTEREST
|
52
|
14
|
FEES
|
54
|
15
|
TAX GROSS UP AND INDEMNITIES
|
55
|
16
|
INCREASED COSTS
|
59
|
17
|
OTHER INDEMNITIES
|
61
|
18
|
MITIGATION BY THE LENDERS
|
62
|
19
|
COSTS AND EXPENSES
|
63
|
20
|
SECURITY
|
64
|
21
|
GUARANTEE AND INDEMNITY
|
65
|
22
|
REPRESENTATIONS AND WARRANTIES
|
70
|
23
|
INFORMATION UNDERTAKINGS
|
77
|
24
|
FINANCIAL COVENANTS
|
81
|
25
|
GENERAL UNDERTAKINGS
|
84
|
26
|
RIG UNDERTAKINGS
|
95
|
27
|
EVENTS OF DEFAULT
|
101
|
28
|
CHANGES TO THE LENDERS
|
105
|
29
|
CHANGES TO THE OBLIGORS
|
109
|
30
|
THE ROLE OF THE AGENT, THE ARRANGERS, THE COORDINATORS, THE ISSUING BANK AND THE REFERENCE BANKS
|
111
|
31
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES AND HEDGING BANKS
|
120
|
32
|
SHARING AMONG THE FINANCE PARTIES
|
121
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
33
|
PAYMENT MECHANICS
|
122
|
34
|
SET-OFF
|
125
|
35
|
SUBORDINATION OF INTRA-OBLIGOR LIABILITIES
|
125
|
36
|
NOTICES
|
126
|
37
|
CALCULATIONS AND CERTIFICATES
|
128
|
38
|
PARTIAL INVALIDITY
|
129
|
39
|
REMEDIES AND WAIVERS
|
129
|
40
|
AMENDMENTS AND WAIVERS
|
129
|
41
|
DISCLOSURE OF INFORMATION AND CONFIDENTIALITY
|
131
|
42
|
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS
|
134
|
43
|
ARTICLE 55 OF DIRECTIVE 2014/59/EU – BAIL-IN ACTION
|
136
|
44
|
COUNTERPARTS
|
138
|
45
|
GOVERNING LAW
|
138
|
46
|
CONFLICT
|
138
|
47
|
ENFORCEMENT
|
138
|
SCHEDULE 1 THE ORIGINAL PARTIES
|
139
|
|
SCHEDULE 2
|
141
|
|
SCHEDULE 3 REQUESTS AND NOTICES
|
142
|
|
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE
|
144
|
|
SCHEDULE 5 FORM OF COMPLIANCE CERTIFICATE
|
146
|
|
SCHEDULE 6 EXISTING RIGS
|
150
|
|
SCHEDULE 7 FORM OF INCREMENTAL NOTICE
|
151
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
(1) |
BORR DRILLING LIMITED, of S.E. Pearman Building, 2nd Fl., 9 Par-la-Ville Road, Hamilton HM 11, Bermuda, with company registration number 51741, as borrower (the "Borrower");
|
(2) |
THE COMPANIES listed in Part I of Schedule I as original guarantors (the "Original Guarantors");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as original lenders (the "Original Lenders");
|
(4) |
DANSKE BANK A/S and DNB BANK ASA, as coordinators (the "Coordinators");
|
(5) |
DANSKE BANK A/S, DNB BANK ASA, and CITIGROUP GLOBAL MARKETS LIMITED as hedging banks (the "Hedging Banks");
|
(6) |
DANSKE BANK A/S, DNB BANK ASA, and CITIGROUP GLOBAL MARKETS LIMITED as bookrunners and mandated lead arrangers (the "Arrangers");
|
(7) |
DNB BANK ASA as original issuing bank (the "Original Issuing Bank"); and
|
(8) |
DNB BANK ASA, Dronning Eufemias gate 30, 0191 Oslo, Norway, as facility agent (the "Agent").
|
1 |
INTERPRETATION
|
1.1 |
Definitions
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the Agent's spot rate of exchange; or
|
|
(b) |
(if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably),
|
|
(a) |
a first priority assignment of a Rig Owner or Intra-Group Charterer's claims, rights, title and interest to any Qualifying Employment Contract;
|
|
(b) |
a first priority assignment of the Earnings;
|
|
(c) |
a first priority assignment of the Insurances;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(d) |
a first priority assignment of any monetary claims in respect of any Hedging Agreements (if applicable); and
|
|
(e) |
a first priority assignment of Intra-Group Loans (if applicable),
|
|
(a) |
in relation to Facility A:
|
|
(i) |
prior to the occurrence of any Establishment Date, the period from and including the date of the Original Agreement to and including 31 August 2019; and
|
|
(ii) |
following the occurrence of any Establishment Date, and in respect of any amount by which Facility A is increased in accordance with Clause 10 (Establishment of the Incremental Amount) only, the
period from and including the Establishment Date thereof to and including 30 March 2021;
|
|
(b) |
in relation the Trade Finance Facility the period from and including the date of the Original Agreement to and including the date falling one (1) month prior to the Termination Date;
|
|
(c) |
in relation to the Revolving Facility, in respect of the:
|
|
(i) |
Revolving Facility Available Tranche Commitments, the period from the date of this Agreement to and including the date falling one (1) month prior to the Termination Date;
|
|
(ii) |
Revolving Facility Discretionary Tranche Commitments, the period from the Effective Date to and including the date falling one (1) month prior to the Termination Date; and
|
|
(iii) |
Revolving Facility Incremental Tranche Commitments the period from and including the Establishment Date thereof to and including the date falling one (1) month prior to the Termination Date.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of
that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
|
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the London interbank market for a period starting on the Business Day
following receipt or recovery and ending on the last day of the current Interest Period.
|
|
(a) |
if any person or group of persons acting in concert owns more than 1/3 of the total amount of shares or are able to vote for more than 1/3 of the voting shares in the Borrower, other than Tor Olav Trøim and a person or group of persons
collaborating or acting in concert with Tor Olav Trøim; and/or
|
|
(b) |
Tor Olav Trøim ceases to own (directly or indirectly) at least 30,000,000 ordinary shares in the Borrower, as adjusted to 6,000,000 shares following completion of the reverse share split announced by the Borrower on 21 June 2019, and as
further adjusted in the event of a future split or reverse split of the shares in the Borrower; and/or
|
|
(c) |
Tor Olav Trøim ceases to be a member of the board of directors of the Borrower; and/or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(d) |
the Borrower ceases to directly own 100 per cent. of the Permitted Holdco.
|
|
(a) |
any Obligor or any of its respective advisers or Affiliates; or
|
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Obligor or any of its respective advisers or Affiliates,
|
|
(i) |
information that:
|
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party or any of its Affiliates of Clause 41 (Disclosure of information and confidentiality)
(for the avoidance of doubt, the disclosure of information by any Obligor or any of its respective advisers or Affiliates to any of its other creditors will not cause such information to become public information); or
|
|
(B) |
is identified in writing at the time of delivery as non-confidential by any Obligor or any of its respective advisers or Affiliates; or
|
|
(C) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that
Finance Party is aware, unconnected with the Obligors and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
|
(ii) |
any Reference Bank Rate.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the
transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems- related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
|
(a) |
all freight, hire and passage moneys payable to an Obligor as a consequence of the operation of the Rig;
|
|
(b) |
any claim under any guarantee in respect of any charterparty, pool agreement or other contract of employment entered into by an Obligor in respect of the Rig or otherwise related to freight, hire or passage moneys payable to an Obligor
as a consequence of the operation of the Rig;
|
|
(c) |
compensation payable to an Obligor in the event of any requisition of the Rig or for the use of the Rig by any government authority or other competent authority;
|
|
(d) |
remuneration for salvage, towage and other services performed by the Rig and payable to an Obligor;
|
|
(e) |
demurrage and retention money receivable by an Obligor in relation to the Rig;
|
|
(f) |
all moneys which are at any time payable under the insurances in respect of loss of Earnings;
|
|
(g) |
if and whenever the Rig is employed on terms whereby any moneys falling within (a) to (e) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is
attributable to the Rig; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(h) |
any other money whatsoever due or to become due to an Obligor from third parties in relation to the Rig.
|
|
(a) |
the pollution or protection of the environment;
|
|
(b) |
the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material;
|
|
(c) |
the labour or health and safety conditions of the workplace, including employee relations;
|
|
(d) |
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the environment, including, without limitation, any waste; or
|
|
(e) |
operations in environmentally or socially sensitive areas, including but not limited to, National Parks and other protected areas identified by national or international law, sensitive locations or critical habitats of international,
national or regional importance, such as the arctic, wetlands, forests or other areas with high biodiversity value, sites that are critical for rare, vulnerable, migratory or endangered species (as defined by the IUCN Red List of Threatened
Animals), areas of archaeological or cultural significance, areas of importance for indigenous peoples or other vulnerable groups, and areas, which affected, would have significant impacts on livelihoods, or other fundamental human rights.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the proposed Establishment Date specified in the Incremental Notice; and
|
|
(b) |
the date on which the Agent executes the Incremental Notice.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(i) |
prior to any Establishment Date, in relation to an Original Lender the amount set opposite its name under the heading "Facility A Commitment" in Schedule 1, Part II (Lenders and Commitments) and
the amount of any other Facility A Commitment transferred to it under this Agreement; and
|
|
(ii) |
after the Establishment Date (if any), in relation to an Original Lender or a Lender (including an Incremental Lender) the amount set opposite its name under the heading "Facility A Commitment" in the Incremental Notice and the amount of
any other Facility A Commitment transferred to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Facility A Commitment transferred to it under this Agreement,
|
|
(a) |
the office or offices notified by a Lender or the Issuing Bank to the Agent in writing on or before the date it becomes a Lender or the Issuing Bank (or, following that date, by not less than five (5) Business Days' written notice) as
the office or offices through which it will perform its obligations under this Agreement; or
|
|
(b) |
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
|
(b) |
any treaty, law, regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in
paragraph (a) above; or
|
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other
jurisdiction.
|
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or
|
|
(b) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
moneys borrowed;
|
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
|
(d) |
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the Approved Accounting Principles, be treated as a balance sheet liability (other than in respect of any lease or hire
purchase contract which would, in accordance with the Approved Accounting Principles in force prior to 31 December 2018 have been treated as an operating lease);
|
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non- recourse basis);
|
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
|
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any
actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(h) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
|
(i) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the Original Issuing Bank; and
|
|
(b) |
any Lender or an Affiliate of a Lender which has become a Party as an "Issuing Bank" pursuant to Clause 6.9 (Appointment of Additional Issuing Banks),
|
|
(a) |
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
|
(b) |
the time barring of claims under any applicable law and defences of set-off or counterclaim;
|
|
(c) |
similar principles, rights and defences under the laws of any Relevant Jurisdiction; and
|
|
(d) |
any other matters which are set out as qualifications or reservations as to matters of law of general application in the legal opinions delivered pursuant to Clause 4.1 (Initial conditions precedent).
|
|
(a) |
any Original Lender; and
|
|
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 28 (Changes to the Lenders),
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the applicable Screen Rate as of 11:00 a.m. London time on the relevant Quotation Day for a period equal in length to the Interest Period of that Loan; or
|
|
(b) |
as otherwise determined pursuant to Clause 13.1 (Unavailability of Screen Rate), and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
|
(a)
|
[***] per cent. per annum if the Equity Raise has not been completed; and
|
(b)
|
[***] per cent. per annum if the Equity Raise has been completed,
|
|
(a) |
the business, condition (financial or otherwise), operations, performance or assets of the Group taken as a whole since the date at which its latest audited financial statements were prepared;
|
|
(b) |
the ability of an Obligor to perform its obligations under the Finance Documents or the Hedging Agreements;
|
|
(c) |
subject to the Legal Reservations, the validity or enforceability of, or the effectiveness or ranking of any security granted or purporting to be granted pursuant to, any Finance Document or Hedging Agreement; or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(d) |
subject to the Legal Reservations, the right or remedy of a Finance Party or a Hedging Bank in respect of a Finance Document or a Hedging Agreement.
|
|
(a) |
unless a Default is continuing, any ship repairer's or outfitter's possessory lien in respect of that Rig for an amount not exceeding USD 5,000,000 or the equivalent in any other currency;
|
|
(b) |
any lien on that Rig for master's, officer's or crew's wages outstanding in the ordinary course of its trading and in accordance with usual maritime practice;
|
|
(c) |
liens for salvage; or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(d) |
any other lien arising by operation of law in the ordinary course of trading (and not as a result of any default or omission by any Obligor).
|
|
(a) |
established in Bermuda, the Cayman Islands or such other jurisdiction as may be approved by the Lenders prior to such establishment in writing (in their sole discretion);
|
|
(b) |
established as a direct Subsidiary of the Borrower;
|
|
(c) |
holding 100 per cent. of the shares in each of all of the Borrower's direct Subsidiaries immediately prior to the establishment of such Permitted HoldCo;
|
(d)
|
established on or after the Permitted Holdco Effective Date.
|
|
(a) |
confirmations (as determined to be satisfactory in the sole discretion of each of the Lenders) in respect of the continuation of the effectiveness and validity of the Finance Documents, any Transaction Security and any guarantee in
respect of the obligations of the Obligors under any of the Finance Documents following the reorganisation necessary to implement the Permitted Holdco, from the Obligors and/or from legal counsel (acceptable to the Agent) in all relevant
jurisdictions;
|
|
(b) |
satisfactory hive-down documentation (as determined to be satisfactory in the sole discretion of each of the Lenders) in respect of the introduction of the Permitted HoldCo as an intermediate holding company within the Group;
|
|
(c) |
such amendments as Lenders may require (in their sole discretion) to this Agreement in order to enable one or more of the Guarantors to become co-borrowers under this Agreement or otherwise enable them to repay Loans, subject to the
Parties' reasonable agreement on structuring in light of relevant legal and regulatory considerations;
|
|
(d) |
customary conditions precedents including, without limitation, satisfactory capacity and enforceability legal opinions; and
|
|
(e) |
evidence that the facility agent under the Back Stop Facility has received documentation equivalent to that described in paragraphs (a) through (d) above (subject to, in the case of paragraph (a) above, substituting reference to the
“Lenders”, the “Finance Documents”, the “Transaction Security” and the “Obligors” for the lenders, the finance documents, the transaction security and the obligors under the Back Stop Facility and, in the case of paragraph (c) above,
substituting reference to the “Lenders”, the “Guarantors”, this “Agreement” and the “Parties” for the lenders, the guarantors, the Back Stop Facility and the parties under the Back Stop Facility) in each case in form and substance
satisfactory to it (in its sole discretion).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
if:
|
|
(i) |
the Reference Bank is a contributor to the Screen Rate; and
|
|
(ii) |
it consists of a single figure,
|
|
(b) |
in any other case, the rate at which the relevant Reference Bank could fund itself in USD for the relevant period with reference to the unsecured wholesale funding market.
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;
|
|
(c) |
any jurisdiction where it conducts its business; and
|
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
|
(a) |
each member of the Group; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
each of its directors, officers, employees, agents and representatives.
|
|
(a) |
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
|
(i) |
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or
|
|
(ii) |
any Relevant Nominating Body,
|
|
(b) |
in the opinion of all of the Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to that Screen Rate; or
|
|
(c) |
in the opinion of all the Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
|
(a) |
with, in aggregate, an equal or greater Market Value than the relevant Rig(s) to be replaced;
|
|
(b) |
built in the same year or after the Rigs(s) to be replaced;
|
|
(c) |
that is/are classed with an Approved Classification Society and registered with an Approved Ship Register;
|
|
(d) |
that is otherwise acceptable to the Lenders (acting reasonably); and
|
|
(e) |
that has become a "Replacement Rig" pursuant to Clause 29.5 (Replacement Rigs)
|
|
(a) |
that is listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person); or
|
|
(b) |
that is located, organised or resident in or incorporated under the laws of any country or territory that is, or whose government is, the target of Sanctions broadly prohibiting dealings with such government, country, or territory
(including, without limitation, at the date of the Original Agreement, Crimea/Sevastopol, Cuba, Iran, North Korea, Syria and Sudan);
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
that is directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above;
|
|
(d) |
with which any Lender is prohibited from dealing or otherwise engaging in a transaction with by any Sanctions; or
|
|
(e) |
that is otherwise a subject or a target of Sanctions.
|
|
(i) |
prior to any Establishment Date, in relation to an Original Lender the amount set opposite its name under the sub- heading "Available" under the heading "Revolving Facility Commitment" in Schedule 1, Part II (Lenders and Commitments) and
the amount of any other Revolving Facility Available Tranche Commitment transferred to it under this Agreement;
|
|
(i) |
after the Establishment Date (if any), in relation to an Original Lender or a Lender (including an Incremental Lender) the amount set opposite its name under the sub- heading "Available" under the heading "Revolving Facility Commitment"
in the Incremental Notice and the amount of any other Revolving Facility Available Tranche Commitment transferred to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Revolving Facility Available Tranche Commitment transferred to it under this Agreement,
|
|
(i) |
prior to any Establishment Date, in relation to an Original Lender the amount set opposite its name under the sub- heading "Discretionary" under the heading "Revolving Facility Commitment" in Schedule 1, Part II (Lenders and Commitments)
and the amount of any other Revolving Facility Discretionary Tranche Commitment transferred to it under this Agreement;
|
|
(ii) |
after the Establishment Date (if any), in relation to an Original Lender or a Lender (including an Incremental Lender) the amount set opposite its name under the sub- heading "Discretionary" under the heading "Revolving Facility
Commitment" in the Incremental Notice and the amount of any other Revolving Facility Discretionary Tranche Commitment transferred to it under this Agreement; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
in relation to any other Lender, the amount of any Revolving Facility Discretionary Tranche Commitment transferred to it under this Agreement,
|
|
(i) |
prior to any Establishment Date, in relation to an Original Lender the amount set opposite its name under the sub- heading "Incremental" under the heading "Revolving Facility Commitment" in Schedule 1, Part II (Lenders and Commitments)
and the amount of any other Revolving Facility Incremental Tranche Commitment transferred to it under this Agreement;
|
|
(ii) |
after the Establishment Date (if any), in relation to an Original Lender or a Lender (including an Incremental Lender) the amount set opposite its name under the sub- heading "Incremental" under the heading " Revolving Facility
Commitment" in the Incremental Notice and the amount of any other Revolving Facility Incremental Tranche Commitment transferred to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Revolving Facility Incremental Tranche Commitment transferred to it under this Agreement,
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the lists of Sanctions designations and/or targets maintained by any Sanctions Authority (including but not limited to the Specially Designated Nationals and Blocked Persons list maintained by OFAC, the Consolidated List of Financial
Sanctions Targets maintained by HMT); and/or
|
|
(b) |
any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, from time to time.
|
|
(a) |
the methodology, formula or other means of determining that Screen Rate has, in the opinion of all the Lenders and the Borrower materially changed;
|
|
(A) |
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or
|
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent, provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
|
(ii) |
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Screen Rate;
|
|
(iii) |
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or
|
|
(iv) |
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
the administrator of that Screen Rate determines that that Screen Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
|
|
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of all the Lenders and the Borrower) temporary; or
|
|
(ii) |
that Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than 60 Business Days; or
|
|
(d) |
in the opinion of all the Lenders and the Borrower, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
an actual, constructive, compromised, agreed, arranged or other total loss of the Rig;
|
|
(b) |
any expropriation, confiscation, requisition or acquisition of the Rig, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government
or official authority or by any person or persons claiming to be or to represent a government or official authority, excluding a requisition for hire for a fixed period against payment of market hire, not exceeding one year without any
right to extension, or any arrest, piracy or hijacking of the Rig, unless the Rig is released and restored to the Rig Owner from such piracy, hijacking, arrest, expropriation, confiscation, requisition or acquisition within three (3) months
after the occurrence thereof; and
|
|
(c) |
any condemnation of the Rig by any tribunal or by any person or persons claiming to be a tribunal.
|
|
(a) |
in the case of an actual loss of the Rig, the date on which it occurred or, if that is unknown, the date when the Rig was last heard of;
|
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of the Rig, the earlier of (A) the date on which a notice of the abandonment is given to the insurers; and (B) the date of any compromise, arrangement or agreement
made by or on behalf of a Rig Owner with the Rig's insurers in which the insurers agree to treat the Rig as a total loss; and
|
|
(c) |
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(i) |
prior to any Establishment Date, in relation to an Original Lender the amount set opposite its name under the heading "Trade Finance Facility Commitment" in Schedule 1, Part II (Lenders and Commitments)
and the amount of any other Trade Finance Facility Commitment transferred to it under this Agreement;
|
|
(ii) |
after the Establishment Date (if any), in relation to an Original Lender or a Lender (including an Incremental Lender) the amount set opposite its name under the heading "Trade Finance Facility Commitment" in the Incremental Notice and
the amount of any other Trade Finance Facility Commitment transferred to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Trade Finance Facility Commitment transferred to it under this Agreement,
|
|
(a) |
a trade finance instrument, in a form requested by the Borrower and agreed by the Agent and the Issuing Bank; or
|
|
(b) |
any guarantee (bid bond, custom guarantee or performance guarantee), standby letter of credit, letter of credit, indemnity or other instrument in a form requested by the Borrower and agreed by the Agent and the Issuing Bank.
|
|
(a) |
the proposed Transfer Date specified in the relevant Transfer Certificate; and
|
|
(b) |
the date on which the Agent executes the relevant Transfer Certificate.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
1.2 |
Construction
|
|
(a) |
Unless a contrary indication appears, any reference in this Agreement to:
|
|
(i) |
the "Agent", the "Borrower", any "Coordinator" any "Guarantor", any "Obligor", any "Finance Party", any "Arranger", any "Hedging Bank", the "Issuing Bank", any "Lender" or any "Party" shall be construed so as to include its successors in title, permitted assigns
and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;
|
|
(ii) |
"assets" includes present and future properties, revenues and rights of every description;
|
|
(iii) |
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or amended and
restated from time to time;
|
|
(iv) |
"guarantee" means (other than in Clause 21 (Guarantee and indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or
any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is
assumed in order to maintain or assist the ability of such person to meet its indebtedness;
|
|
(v) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
|
(vi) |
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or
not having separate legal personality);
|
|
(vii) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency,
department or of any regulatory, self-regulatory or other authority or organisation;
|
|
(viii) |
the "Interest Period" of a Trade Finance Instrument shall be construed as a reference to the Term of that Trade Finance Instrument;
|
|
(ix) |
a Lender's "participation" in relation to a Trade Finance Instrument shall be construed as a reference to the relevant amount that is or may be payable by a Lender in relation to that Trade Finance
Instrument;
|
|
(x) |
a provision of law is a reference to that provision as amended or re-enacted;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(xi) |
a time of day is a reference to Oslo time; and
|
|
(xii) |
unless the context otherwise requires, words in the singular include plural and vice versa.
|
|
(b) |
The Borrower providing "cash cover" for a Trade Finance Instrument means the Borrower paying an amount in the currency of the Trade Finance Instrument to an interest-bearing account in the name of
the Borrower and the following conditions being met:
|
|
(i) |
the account is with the Issuing Bank;
|
|
(ii) |
until no amount is or may be outstanding under that Trade Finance Instrument, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Trade
Finance Instrument; and
|
|
(iii) |
the Borrower has executed a security document, in form and substance satisfactory to the Issuing Bank, creating a first ranking security interest over that account.
|
|
(c) |
The Borrower "repaying" or "prepaying" a Trade Finance Instrument means:
|
|
(i) |
the Borrower providing cash cover, or other alternative security acceptable to the Lenders, for that Trade Finance Instrument;
|
|
(ii) |
the maximum amount payable under the Trade Finance Instrument being reduced or cancelled in accordance with its terms; or
|
|
(iii) |
the Issuing Bank being satisfied that it has no further liability under that Trade Finance Instrument,
|
|
(d) |
An amount borrowed includes any amount utilised by way of Trade Finance Instrument.
|
|
(e) |
A Lender funding its participation in a Utilisation includes a Lender participating in a Trade Finance Instrument.
|
|
(f) |
Amounts outstanding under this Agreement include amounts outstanding under or in respect of any Trade Finance Instrument.
|
|
(g) |
An outstanding amount of a Trade Finance Instrument at any time is the maximum amount that is or may be payable by the Borrower in respect of that Trade Finance Instrument at that time.
|
|
(h) |
The Borrower's obligation on Utilisations becoming "due and payable" includes the Borrower repaying any Trade Finance Instrument in accordance with paragraph (c) above.
|
|
(i) |
Clause and Schedule headings are for ease of reference only.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(j) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
|
(k) |
A Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
|
|
(l) |
"Incorporation" or "jurisdiction of incorporation" shall be construed where the context requires so as to include "registration" or "jurisdiction of registration" (by way of continuation or otherwise).
|
|
(m) |
"Agent" shall be construed so as to include "Agent or any nominee or custodian appointed pursuant to Clause 30.19 (Custodians and nominees)" for the purposes of Clause 17.3 (Indemnity to the Agent), Clause 19 (Costs and Expenses), Clause 25.20 (Further assurance) and paragraph (a)(i) of
Clause 33.5 (Partial payments).
|
2 |
THE FACILITIES
|
2.1 |
The Facilities
|
|
(a) |
a secured term loan facility in an aggregate amount equal to the Total Facility A Commitments;
|
|
(b) |
a secured trade finance facility in an aggregate amount equal to the Total Trade Finance Facility Commitments; and
|
|
(c) |
a secured revolving credit facility in an aggregate amount equal to the Total Revolving Facility Commitments.
|
2.2 |
Incremental Amounts
|
2.3 |
Finance Parties' rights and obligations
|
|
(a) |
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
|
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and
independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents
and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facilities or its role under a Finance Document (including any such amount payable to the
Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
(c)
|
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
3 |
PURPOSE AND APPLICATION
|
3.1 |
Purpose
|
|
(a) |
The Borrower shall apply all amounts borrowed by it under the Trade Finance Facility to issue Trade Finance Instruments.
|
|
(b) |
The Borrower shall apply any Incremental Amount borrowed by it under Facility A and, in respect of Revolving Facility Incremental Tranche Commitments, the Revolving Facility towards the repayment of the Financial Indebtedness outstanding
under the Back Stop Facility in respect of the Incremental Rig.
|
|
(c) |
The Borrower shall apply all amounts borrowed by it in relation to any Utilisation in respect of any Revolving Facility Discretionary Tranche Commitment for general corporate purposes of any Obligor and/or the Group.
|
3.2 |
Monitoring
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Initial conditions precedent
|
|
(a) |
The Lenders will not be obliged to comply with Clause 5.4 (Lender's Participation) in relation to any Utilisation in respect of any Revolving Incremental Loan or any Facility A Incremental Loan
unless the Agent has received all of the Incremental Amount Conditions Precedent and Incremental Supplemental Security (unless provided in connection with any Establishment Date) in a form and substance satisfactory to the Agent.
|
|
(b) |
The Lenders will not be obliged to comply with Clause 5.4 (Lender's Participation) in relation to any Utilisation in respect of any Revolving Facility Discretionary Tranche Commitment unless an
All Lender Consent Date has occurred (and then only to the extent of any applicable All Lender Consent Amount).
|
4.2 |
Further conditions precedent
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
no Default or Event of Default is continuing or would result from the proposed Utilisation; and
|
|
(b) |
the Repeating Representations to be made by each Obligor are true in all material respects.
|
4.3 |
Maximum number of Loans
|
|
(a) |
more than five (5) Revolving Loans would be outstanding
|
|
(b) |
more than ten (10) Trade Finance Instruments would be outstanding;
|
|
(c) |
more than one (1) Facility A Loan would be outstanding; or
|
|
(d) |
more than one (1) Facility A Incremental Loan would be outstanding.
|
4.4 |
Conditions relating to Optional Currencies
|
|
(a) |
A currency will constitute an Optional Currency in relation to a Utilisation of a Trade Finance Instrument if:
|
|
(i) |
it is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency on the Quotation Day and the Utilisation Date for that Utilisation; and
|
|
(ii) |
it has been approved by the Agent (acting on the instructions of all Lenders who have provided Trade Finance Facility Commitments) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation.
|
|
(b) |
If the Agent has received a written request from the Borrower for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Borrower by 11:00 a.m. three (3) Business Days prior to the requested Utilisation
Date:
|
|
(i) |
whether or not the Lenders have granted their approval; and
|
|
(ii) |
if approval has been granted, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation of a Trade Finance Instrument in that currency.
|
5 |
UTILISATION – LOANS
|
5.1 |
Delivery of a Utilisation Request
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
5.2 |
Completion of a Utilisation Request
|
|
(a) |
it identifies the Facility to be utilised;
|
|
(b) |
the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;
|
|
(c) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
|
|
(d) |
the proposed Interest Period complies with Clause 12 (Interest Periods); and
|
|
(e) |
the Establishment Date for the Incremental Amount has occurred in respect of any Facility A or Revolving Incremental Loan requested in a Utilisation Request.
|
5.3 |
Currency and amount
|
|
(a) |
The currency specified in a Utilisation Request must be USD.
|
|
(b) |
The amount of any proposed Facility A Incremental Loan (which will be advanced in one lump sum) must not exceed the lower of:
|
(i)
|
USD 25,000,000; and
|
(ii)
|
when aggregated with the Total Facility A Commitments (prior to the Establishment Date), the Total Revolving Facility Commitments (following the Establishment Date) and the Total Trade Finance Facility
Commitments (following the Establishment Date), 45.0 per cent. of the aggregate Market Value of the Incremental Rig and the Existing Rigs (to be evidenced by valuation certificates issued no earlier than thirty (30) days prior to the
relevant Utilisation Date),
|
|
(c) |
The amount of the proposed Revolving Incremental Loan must not exceed the available Revolving Facility Incremental Tranche Commitments.
|
|
(d) |
The amount of the proposed Revolving Incremental Loan must be an amount equal to no less than USD 5,000,000 or, if less, the available Revolving Facility Incremental Tranche Commitments.
|
|
(e) |
The amount of the proposed Revolving Loan (in respect of the Revolving Facility Discretionary Tranche Commitments) must not exceed the Available Discretionary Tranche.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
5.4 |
Lenders' participation
|
|
(a) |
If the conditions set out in this Agreement have been met, the Lenders shall make their respective participation in each Loan available by the relevant Utilisation Date through their Facility Office.
|
|
(b) |
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
|
|
(c) |
The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and the amount of that participation to be made available in accordance with Clause 33.1 (Payments
to the Agent), in each case by 11:00 a.m. on the date falling one (1) Business Day prior to the relevant Utilisation Date.
|
5.5 |
Cancellation of Commitment
|
|
(a) |
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
|
|
(b) |
If on the first proposed Utilisation Date under this Agreement, the aggregate of the Total Facility A Commitments and the Total Trade Finance Facility Commitments exceed 45.0 per cent. of the aggregate Market Value of the Existing Rigs,
the amount of the excess shall reduce the Total Facility A Commitments and the Total Trade Finance Facility Commitments on a pro rata basis. Any cancellation under this paragraph (b) shall reduce the Commitments of the Lenders rateably.
|
|
(c) |
If on the proposed Utilisation Date for a Facility Incremental A Loan, the aggregate of the Incremental Amount comprised of Total Facility A Commitments and the Incremental Amount comprised of Revolving Facility Incremental Tranche
Commitments exceed 45.0 per cent. of the aggregate Market Value of the Incremental Rig, the amount of the excess shall reduce the Total Facility A Commitments and the Total Revolving Facility Commitments on a pro rata basis. Any
cancellation under this paragraph (b) shall reduce the Commitments of the Lenders rateably.
|
5.6 |
Consolidation of loans
|
6 |
UTILISATION – TRADE FINANCE INSTRUMENTS
|
6.1 |
Trade Finance Facility
|
|
(a) |
The Trade Finance Facility may only be utilised by way of Trade Finance Instruments.
|
|
(b) |
Clause 5 (Utilisation - Loans) does not apply to Utilisations of the Trade Finance Facility.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
In determining the amount of the Available Facility and a Lender's L/C Proportion of a proposed Trade Finance Instrument for the purposes of this Agreement the Available Commitment of a Lender will be calculated ignoring any cash cover
provided for outstanding Trade Finance Instruments.
|
6.2 |
Delivery of a Utilisation Request for Trade Finance Instruments
|
|
(a) |
The Borrower may request a Trade Finance Instrument to be issued on behalf of itself or any of its Subsidiaries by delivery to the Agent of a duly completed Utilisation Request not later than the 11:00 a.m. London time on the date
falling three (3) Business Days prior to the relevant Utilisation Date.
|
|
(b) |
The Issuing Bank may, in its sole discretion, decide whether or not to issue a Trade Finance Instrument requested by the Borrower.
|
6.3 |
Completion of a Utilisation Request for Trade Finance Instruments
|
|
(a) |
it specifies that it is for a Trade Finance Instrument;
|
|
(b) |
it identifies the Issuing Bank which has agreed to issue the Trade Finance Instrument;
|
|
(c) |
the proposed Utilisation Date is a Business Day within the Availability Period applicable to the Trade Finance Facility;
|
|
(d) |
the currency and amount of the Trade Finance Instrument comply with Clause 6.4 (Currency and amount);
|
|
(e) |
the form of Trade Finance Instrument is attached;
|
|
(f) |
the Expiry Date of the Trade Finance Instrument falls on or before the Termination Date applicable to the Trade Finance Facility;
|
|
(g) |
the delivery instructions for the Trade Finance Instrument are specified; and
|
|
(h) |
the identity of the beneficiary of the Trade Finance Instrument is a beneficiary approved by the Issuing Bank.
|
6.4 |
Currency and amount
|
|
(a) |
The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.
|
|
(b) |
Subject to paragraph (c) below, the amount of the proposed Trade Finance Instrument must be an amount whose Base Currency Amount is not more than the Available Facility and which is:
|
|
(i) |
if the currency selected is the Base Currency, a minimum of USD 1,000,000 or, if less, the Available Facility; or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
if the currency selected is an Optional Currency, the minimum amount (and if required, integral multiple) specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.4 (Conditions relating to
Optional Currencies) or, if less, the Available Facility.
|
|
(c) |
The maximum aggregate Base Currency Amount of all Trade Finance Instrument shall not exceed the Total Trade Finance Facility Commitments.
|
6.5 |
Issue of Trade Finance Instruments
|
|
(a) |
If the conditions set out in this Agreement have been met, the Issuing Bank shall issue the Trade Finance Instrument on the Utilisation Date.
|
|
(b) |
The Issuing Bank will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:
|
|
(i) |
in the case of a Trade Finance Instrument to be renewed in accordance with Clause 6.6 (Renewal of a Trade Finance Instrument), no
Event of Default is continuing or would result from the proposed Utilisation and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and
|
|
(i) |
the Repeating Representations to be made by each Obligor are true in all material respects.
|
|
(b) |
The amount of each Lender's participation in each Trade Finance Instrument will be equal to its L/C Proportion.
|
|
(c) |
The Agent shall determine the Base Currency Amount of each Trade Finance Instrument which is to be issued in an Optional Currency and shall notify the Issuing Bank and each Lender of the details of the requested Trade Finance Instrument
and its participation in that Trade Finance Instrument by 12:00 noon Oslo time on the date falling two (2) Business Days prior to the relevant Utilisation Date.
|
|
(d) |
The Issuing Bank has no duty to enquire of any person whether or not any of the conditions set out in paragraph (b) above have been met. The Issuing Bank may assume that those conditions have been met unless it is expressly notified to
the contrary by the Agent. The Issuing Bank will have no liability to any person for issuing a Trade Finance Instrument based on such assumption.
|
|
(e) |
The Issuing Bank is solely responsible for the form of the Trade Finance Instrument that it issues. The Agent has no duty to monitor the form of that document.
|
|
(f) |
Subject to paragraph (i) of Clause 30.7 (Rights and discretions), each of the Issuing Bank and the Agent shall provide the other with any information reasonably requested by the other that relates
to a Trade Finance Instrument and its issue.
|
|
(g) |
The Issuing Bank may issue a Trade Finance Instrument in the form of a SWIFT message or other form of communication customary in the relevant market but has no obligation to issue that Trade Finance Instrument in any particular form of
communication.
|
6.6 |
Renewal of a Trade Finance Instrument
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
The Borrower may request that any Trade Finance Instrument issued on behalf of the Borrower be renewed by delivery to the Agent of a Renewal Request in substantially similar form to a Utilisation Request for a Trade Finance Instrument by
the by 12:00 noon Oslo time on the date falling two (2) Business Days prior to the relevant Utilisation Date.
|
|
(b) |
The Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Trade Finance Instrument except that the condition set out in paragraph (d) of Clause 6.3 (Completion of
a Utilisation Request for Trade Finance Instruments) shall not apply.
|
|
(c) |
The terms of each renewed Trade Finance Instrument shall be the same as those of the relevant Trade Finance Instrument immediately prior to its renewal, except that:
|
|
(i) |
its amount may be less than the amount of the Trade Finance Instrument immediately prior to its renewal; and
|
|
(ii) |
its Term shall start on the date which was the Expiry Date of the Trade Finance Instrument immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.
|
|
(d) |
Subject to paragraph (e) below, if the conditions set out in this Agreement have been met, the Issuing Bank shall amend and re-issue any Trade Finance Instrument pursuant to a Renewal Request.
|
|
(e) |
Where a new Trade Finance Instrument is to be issued to replace by way of renewal an existing Trade Finance Instrument, the Issuing Bank is not required to issue that new Trade Finance Instrument until the Trade Finance Instrument being
replaced has been returned to the Issuing Bank or the Issuing Bank is satisfied either that it will be returned to it or otherwise that no liability can arise under it.
|
6.7 |
Revaluation of Trade Finance Instruments
|
|
(a) |
If any Trade Finance Instruments are denominated in an Optional Currency, the Agent shall at three (3) monthly intervals after the date of the Original Agreement recalculate the Base Currency Amount of each Trade Finance Instrument by
notionally converting into the Base Currency the outstanding amount of that Trade Finance Instrument on the basis of the Agent's Spot Rate of Exchange on the date of calculation.
|
|
(b) |
The Borrower shall, if requested by the Agent within fourteen (14) days of any calculation under paragraph (a) above, ensure that within three (3) Business Days sufficient Trade Finance Instrument are prepaid to prevent the Base Currency
Amount of the Trade Finance Instrument exceeding the Total Trade Finance Facility Commitments following any adjustment to a Base Currency Amount under paragraph (a) above.
|
6.8 |
Reduction or expiry of Trade Finance Instrument
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
6.9 |
Appointment of additional Issuing Banks
|
|
(a) |
notifying the Agent and the Borrower that it has so agreed to be an Issuing Bank;
|
|
(b) |
the Agent notifying the Borrower and that Lender or that Affiliate of a Lender that is has consented to that Lender or that Affiliate of a Lender becoming a Party as an "Issuing Bank", (such consent not to be unreasonably withheld); and
|
|
(c) |
in the case of an Affiliate of a Lender only, the accession of that Affiliate of a Lender to this Agreement, by the entry into of an accession agreement, in form and substance satisfactory to the Agent, between the Agent and that
Affiliate of a Lender.
|
7 |
TRADE FINANCE INSTRUMENTS
|
7.1 |
Immediately payable
|
7.2 |
Claims under a Trade Finance Instrument
|
|
(a) |
The Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Trade Finance Instrument requested by it and which appears on its face to be in order (in this Clause 7, a "claim").
|
|
(b) |
The Borrower shall immediately on demand pay to the Agent for the Issuing Bank an amount equal to the amount of any claim.
|
|
(c) |
The Borrower acknowledges that the Issuing Bank:
|
|
(i) |
is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and
|
|
(ii) |
deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.
|
|
(d) |
The obligations of the Borrower under this Clause 7 will not be affected by:
|
|
(i) |
the sufficiency, accuracy or genuineness of any claim or any other document; or
|
|
(ii) |
any incapacity of, or limitation on the powers of, any person signing a claim or other document.
|
7.3 |
Indemnities
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
The Borrower shall immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank's gross negligence or wilful misconduct) in acting as the
Issuing Bank under any Trade Finance Instrument requested by the Borrower.
|
|
(b) |
Each Lender shall (according to its L/C Proportion) immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank's gross negligence or
wilful misconduct) in acting as the Issuing Bank under any Trade Finance Instrument (unless the Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document).
|
|
(c) |
The Borrower shall immediately on demand reimburse any Lender for any payment it makes to the Issuing Bank under this Clause 7.3 in respect of that Trade Finance Instrument.
|
|
(d) |
The obligations of each Lender or the Borrower under this Clause are continuing obligations and will extend to the ultimate balance of sums payable by that Lender or the Borrower in respect of any Trade Finance Instrument, regardless of
any intermediate payment or discharge in whole or in part.
|
|
(e) |
If the Borrower has provided cash cover in respect of a Lender's participation in a Trade Finance Instrument, the Issuing Bank shall seek reimbursement from that cash cover before making a demand of that Lender under paragraph (b) above.
Any recovery made by the Issuing Bank pursuant to that cash cover will reduce that Lender's liability under paragraph (b) above.
|
|
(f) |
The obligations of any Lender or the Borrower under this Clause 7.3 will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause
(without limitation and whether or not known to it or any other person) including:
|
|
(i) |
any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Trade Finance Instrument or any other person;
|
|
(ii) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
|
|
(iii) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Trade Finance Instrument or
other person or any non- presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(iv) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Trade Finance Instrument or any other person;
|
|
(v) |
any amendment (however fundamental) or replacement of a Finance Document, any Trade Finance Instrument or any other document or security;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(vi) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Trade Finance Instrument or any other document or security; or
|
|
(vii) |
any insolvency or similar proceedings.
|
7.4 |
Rights of contribution
|
8 |
REPAYMENT
|
8.1 |
Repayment of the Facility A Loan
|
|
(a) |
prior to the Establishment Date by quarterly instalments each in the amount of USD 27,890,625 on each of 31 March 2022 and 30 June 2022; and
|
|
(b) |
if applicable, after the Establishment Date, by quarterly instalments each in the amount of USD 29,696,970 on each of 31 March 2022 and 30 June 2022; and
|
8.2 |
Repayment of Revolving Loans
|
|
(a) |
Each Revolving Loan shall be repaid on the last day of its Interest Period.
|
|
(b) |
Without prejudice to the Borrower's obligations under paragraph (a) above, if:
|
|
(i) |
one or more Revolving Loans are to be made available:
|
|
(A) |
on the same day that a maturing Revolving Loan is due to be repaid; and
|
|
(B) |
in whole or in part for the purpose of refinancing the maturing Revolving Loan; and
|
|
(ii) |
the proportion borne by each Lender's participation in the maturing Revolving Loan to the amount of that maturing Revolving Loan is the same as the proportion borne by that Lender's participation in the new Loans to the aggregate amount
of those new Revolving Loans,
|
|
(i) |
if the amount of the maturing Revolving Loan exceeds the aggregate amount of the new Revolving Loans:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(A) |
the Borrower will only be required to make a payment under Clause 33.1 (Payments to the Agent) in an amount equal to that excess; and
|
|
(B) |
each Lender's participation in the new Revolving Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Revolving Loan and that Lender will
not be required to make a payment under Clause 33.1 (Payments to the Agent) in respect of its participation in the new Revolving Loans; and
|
|
(ii) |
if the amount of the maturing Revolving Loan is equal to or less than the aggregate amount of the new Revolving Loans:
|
|
(A) |
the Borrower will not be required to make a payment under Clause 33.1 (Payments to the Agent); and
|
|
(B) |
each Lender will be required to make a payment under Clause 33.1 (Payments to the Agent) in respect of its participation in the new Revolving Loans only to the extent that its participation in the new Revolving Loans exceeds that
Lender's participation in the maturing Revolving Loan and the remainder of that Lender's participation in the new Revolving Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that
Lender's participation in the maturing Revolving Loan.
|
|
(c) |
If the Borrower has not delivered a Utilisation Request in respect of a maturing Revolving Loan in accordance with Clause 5.1 (Delivery of a Utilisation Request), the maturing Revolving Loan
shall, subject to the other provisions of this Agreement, be automatically rolled over with an Interest Period of three (3) months provided that the conditions set out in Clause 4.2 (Further conditions
precedent) are fulfilled.
|
8.3 |
Termination Date
|
|
(a) |
On the Termination Date, the Borrower shall pay to the Finance Parties all amounts then outstanding and owing by it to the Finance Parties under the Finance Documents together with any other amount outstanding and owed by any Obligor to
any Finance Party under any Finance Document.
|
|
(b) |
The Borrower shall (and shall, if relevant, ensure that its Subsidiaries shall) procure that the Issuing Bank is released from its obligations under any Trade Finance Instruments outstanding on the Termination Date. Any Trade Finance
Instruments which have not expired on or before the Termination Date shall be repaid on the Termination Date.
|
8.4 |
Reduction of Revolving Facility Commitments
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
prior to the Establishment Date (if any) in quarterly reductions each in the amount of USD 2,734,375 on each of 31 March 2022 and 30 June 2022; and
|
|
(b) |
after the Establishment Date (if any) in quarterly reductions each in the amount of USD 5,303,030 on each of 31 March 2022 and 30 June 2022
|
9 |
PREPAYMENT AND CANCELLATION
|
9.1 |
Mandatory Prepayment - Illegality
|
|
(a) |
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
|
(b) |
upon the Agent notifying the Borrower, the Available Commitment of that Lender will be immediately cancelled; and
|
|
(c) |
the Borrower shall repay that Lender's participation in the Loans on the last day of the Interest Period for each Loan or Trade Finance Instrument occurring after the Agent has notified the Borrower or, if earlier, the date specified by
the Lender in the notice delivered to the Agent (being no earlier than one (1) month after the Agent's notice to the Borrower).
|
9.2 |
Illegality in relation to the Issuing Bank
|
|
(a) |
the Issuing Bank shall promptly notify the Agent upon becoming aware of that event;
|
|
(b) |
upon the Agent notifying the Borrower, the Issuing Bank shall not be obliged to issue any Trade Finance Instrument;
|
|
(c) |
the Borrower shall use its reasonable endeavours to procure the release of each Trade Finance Instrument issued by the Issuing Bank and outstanding at such time on or before the date specified by the Issuing Bank in the notice delivered
to the Agent (being no earlier than one (1) month after the Agent's notice to the Borrower) (failing which each Trade Finance Instrument shall be prepaid on or before such date); and
|
|
(d) |
unless there is more than one Issuing Bank, the Trade Finance Facility shall cease to be available for the issue of Trade Finance Instruments and the Total Trade Finance Facility Commitments shall be cancelled in full on the date on
which each Trade Finance Instrument has been prepaid in full.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
9.3 |
Mandatory prepayment - Change of Control
|
|
(a) |
the relevant Obligor shall promptly notify the Agent upon becoming aware of that event;
|
|
(b) |
a Lender shall not be obliged to fund a Utilisation; and
|
|
(c) |
if a Lender so requires and notifies the Agent within 10 Business Days of the Borrower notifying the Agent of the event, the Agent shall, by not less than 10 Business Days' notice to the Borrower, cancel the Commitment of that Lender and
declare the participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be
cancelled and all such outstanding Loans and amounts will become immediately due and payable.
|
9.4 |
Mandatory prepayment – Sanctions
|
|
(a) |
the Borrower shall promptly notify the Agent thereof; and
|
|
(b) |
upon receipt of such notice, each Lender shall have the right to cancel its Commitments and demand the Borrower repay any Loans owing by it together with accrued interest, and all other amounts accrued under the Finance Documents on the
date specified by the Agent in the notice delivered to the Borrower, such date should not to be less than three (3) Business Days’ after the Agent’s notice to the Borrower, but not later than on the date required by the relevant Sanctions,
if applicable.
|
9.5 |
Mandatory prepayment – sale or Total Loss - replacement
|
|
(a) |
If a Rig (or the Rig Owner) is sold, transferred or otherwise disposed of in whole or in part, or a Rig becomes a Total Loss, then the Facilities shall, unless such Rig is to be replaced by a Replacement Rig in accordance with Clause
29.5 (Replacement Rigs), be prepaid by an amount equal to the Market Value of the Rig which is sold or lost (or if a Rig Owner is sold, the Market Value of the Rig owned by that Rig Owner), divided
by the aggregate Market Value of all Rigs (based on valuations no older than thirty (30) days), multiplied by the amount of the Facilities.
|
|
(b) |
Such:
|
|
(i) |
prepayment and cancellation shall be made:
|
|
(A) |
in the case of a sale, transfer or other disposal of a Rig (or a Rig Owner owning a Rig), on or before the date on which the sale, transfer or other disposal is completed by delivery of the Rig (or shares in the Rig Owner owning the
Rig); or
|
|
(B) |
in the case of a Total Loss, on the earlier of (A) the date falling one hundred and eighty (180) days after the Total Loss Date, and (B) the date of receipt by the Agent of the proceeds of insurance or requisition for title relating to
such Total Loss; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
replacement shall be made within 90 days of:
|
|
(A) |
in the case of a sale, transfer or other disposal of a Rig (or a Rig Owner owning a Rig), of the date on which the sale, transfer or other disposal is completed by delivery of the Rig (or shares in the Rig Owner owning the Rig); or
|
|
(B) |
in the case of a Total Loss, the Total Loss Date.
|
|
(c) |
Any prepayment under this Clause 9.5 shall be applied as follows to reduce all of the Total Commitments on a pro rata basis in the proportion of each Lender's Commitment thereunder,
|
|
(i) |
with respect to the Total Facility A, the amounts shall always be applied in accordance with Clause 9.9 (j) hereunder; and
|
|
(ii) |
with respect to the Total Revolving Facility Commitments and the Total Trade Finance Facility Commitments, at the Borrower's option, (i) the Available Commitments thereunder shall be cancelled by the same amount prepaid in respect of
each of the Revolving Facility and the Trade Finance Facility with the Commitments of the Lenders being rateably reduced under each applicable Facility, or (ii) the amounts shall be applied towards repayment and cancellation of outstanding
Loans and Trade Finance Instruments under the Revolving Facility and the Trade Finance Facility.
|
|
(d) |
Following prepayment in accordance with the above paragraphs or replacement by a Replacement Rig in accordance with Clause 29.5 (Replacement Rigs), and in case of a sale subject to closing
procedure to be agreed between the Borrower and the Agent (in its sole discretion and acting on the instructions of the Lenders), the Agent shall be entitled to release (including taking any steps necessary to giving effect to such release)
any Security Documents relating to the relevant Rig or (as applicable) the relevant Guarantors and the release of the relevant Guarantors' obligations under any Finance Document and the relevant Rig sold or lost shall subsequently no longer
be defined as a "Rig" or included in the definition of "Rigs" under this Agreement.
|
9.6 |
Voluntary cancellation
|
9.7 |
Voluntary prepayment
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
9.8 |
Right of cancellation and prepayment in relation to a single Lender or Issuing Bank
|
|
(a) |
If:
|
|
(i) |
any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 15.2 (Tax gross-up); or
|
|
(ii) |
any Lender or Issuing Bank claims indemnification from the Borrower or an Obligor under Clause 15.3 (Tax indemnity) or Clause 16.1 (Increased costs),
|
|
(A) |
(if such circumstances relate to a Lender) of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender's participation in the Utilisations; or
|
|
(B) |
(if such circumstances relate to the Issuing Bank) of repayment of any outstanding Trade Finance Instrument issued by it and cancellation of its appointment as the Issuing Bank under this Agreement in relation to any Trade Finance
Instruments to be issued in the future.
|
|
(b) |
On receipt of a notice referred to in paragraph (a) above in relation to a Lender, the Commitment(s) of that Lender shall immediately be reduced to zero.
|
|
(c) |
On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that
Lender's participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents.
|
9.9 |
Restrictions
|
|
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 9 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation or prepayment.
|
|
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
|
(d) |
The Borrower may not reborrow any part of a Term Facility which is prepaid or repaid.
|
|
(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
|
(f) |
If the Agent receives a notice under this Clause 9, it shall promptly forward a copy of that notice to either the Borrower or the affected Lender or Issuing Bank, as appropriate.
|
|
(g) |
The Borrower shall repay any Loan that exceeds the applicable Available Facility following any cancellation under this Clause 9.
|
|
(h) |
If all or part of a Term Loan is repaid or prepaid an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under
this paragraph (h) shall reduce the Commitments of the Lenders rateably.
|
|
(i) |
Any voluntary cancellation and/or prepayment in respect of a Term Facility under this Clause 9 (other than as required by Clause 26.12 (Minimum value)) shall be applied pro rata against the repayment instalments falling after that cancellation and/or prepayment (including, for the avoidance of doubt, the repayment instalment falling together with the final repayment instalment for the
applicable Term Facility).
|
|
(j) |
Any mandatory cancellation and/or prepayment or any voluntary cancellation and/or prepayment required by Clause 26.12 (Minimum value) in respect of a Term Facility under this Clause 9 shall be
applied in inverse order of maturity against the repayment instalments falling after that cancellation and/or prepayment (including, for the avoidance of doubt, the repayment instalment falling together with the final repayment instalment
for the applicable Term Facility).
|
10 |
ESTABLISHMENT OF THE INCREMENTAL AMOUNT
|
10.1 |
Selection of Incremental Lenders
|
10.2 |
Delivery of Incremental Notice
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
10.3 |
Completion of the Incremental Notice
|
|
(a) |
The Incremental Notice is irrevocable and will not be regarded as having been duly completed unless:
|
|
(i) |
the Total Incremental Commitments specified in the Incremental Notice are no less than the amount of outstanding loans under the Back Stop Facility; and
|
|
(ii) |
the Incremental Lenders set out in that Incremental Notice have been selected and allocated in accordance with Clause 10.1 (Selection of Incremental Lenders); and
|
|
(iii) |
the Incremental Notice is received by the Agent prior to 30 April 2021;
|
|
(b) |
Only one Incremental Amount may be requested in the Incremental Notice.
|
10.4 |
Maximum number of Incremental Amounts
|
10.5 |
Conditions to establishment
|
|
(a) |
The establishment of the Incremental Amount will only be effected in accordance with Clause 10.6 (Establishment of the Incremental Amount) if:
|
|
(i) |
on the date of the Incremental Notice and on the Establishment Date:
|
|
(A) |
no Default is continuing or would result from the establishment of the proposed Incremental Amount; and
|
|
(B) |
the Repeating Representations to be made by each Obligor are true in all material respects; and
|
|
(ii) |
the Agent has received in form and substance satisfactory to it:
|
|
(A) |
the Incremental Amount Conditions Precedent;
|
|
(B) |
any Incremental Supplemental Security that the Agent may require to be established on or prior to the Establishment Date;
|
|
(C) |
such documents, evidence, confirmations, legal opinions, supplemental security, variations of prior registrations and/or amendments to the Finance Documents as are necessary in the opinion of the Agent (acting on the instructions of the
other Finance Parties) as a result of the establishment of the Incremental Amount to (i) maintain the effectiveness of the Security granted for the benefit of the Finance Parties pursuant to the Finance Documents, (ii) ensure that the
Security granted prior to the Establishment Date will benefit the Incremental Lenders, and (iii) ensure that the Incremental Supplemental Security will benefit the Finance Parties, including the Incremental Lenders and (it being
acknowledged and agreed by the parties to this Agreement that all Security in effect from time to time is intended to and shall be for the benefit of all Finance Parties from time to time, including without limitation Security granted
pursuant to a Security Document);
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(D) |
evidence that the entity which owns the Incremental Rig has acceded to this Agreement as an Additional Rig Owner and Additional Guarantor pursuant to Clause 29.2 (Additional Guarantors, Intermediate
Holding Companies, Rig Owners and/or Intra-Group Charterers);
|
|
(E) |
evidence that any Group entity which charters the Incremental Rig in connection with a Qualifying Employment Contract has acceded to this Agreement as an Additional Intra-Group Charterer and Additional Guarantor pursuant to Clause 29.2 (Additional Guarantors, Intermediate Holding Companies, Rig Owners and/or Intra-Group Charterers); and
|
|
(F) |
evidence that any intermediary holding company which owns shares in the relevant Additional Rig Owner has acceded to this Agreement as an Additional Intermediate Holding Company and Additional Guarantor pursuant to Clause 29.2 (Additional Guarantors, Intermediate Holding Companies, Rig Owners and/or Intra-Group Charterers).
|
|
(b) |
The Agent shall notify the Borrower and the Lenders promptly upon being satisfied under paragraph (a)(ii) above.
|
|
(c) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that
notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
10.6 |
Establishment of the Incremental Amount
|
|
(a) |
If the conditions set out in this Agreement have been met, the establishment of the Incremental Amount is effected in accordance with paragraph (c) below when the Agent has received the Incremental Notice duly signed by the Borrower and
the Lenders and when the Agent executes an otherwise duly completed Incremental Notice. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Incremental Notice appearing
on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Incremental Notice.
|
|
(b) |
The Agent shall only be obliged to execute the Incremental Notice delivered to it by the Borrower once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and
regulations in relation to the establishment of the relevant Incremental Amount.
|
|
(c) |
On the Establishment Date for the Incremental Amount:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(i) |
subject to the terms of this Agreement the Incremental Lenders make available to the Borrower the Total Incremental Commitments specified in the Incremental Notice;
|
|
(ii) |
each Incremental Lender's Incremental Commitment shall be applied pro rata (or in such other manner as the Lenders, the Agent and the Borrower may agree) across the Facilities (including as increased or established by the Incremental
Amount) and the existing Lenders Commitments and/or participations in each Loan or Trade Finance Instrument under Facility A, and the Trade Finance Facility shall be reduced by a corresponding amount and reallocated across the Facilities so
that following the establishment and utilisation of the Incremental Amount the commitments and participations of each Lender (including each Incremental Lender) across the Facilities (including as increased or established by the Incremental
Amount) will be allocated rateably as set out in the Incremental Notice;
|
|
(iii) |
subject to paragraph (iv) below the reallocation of commitments and participations as contemplated in paragraph (c) (ii) of this Clause 10.6 shall be applied so that following such reallocation the amount of the Revolving Facility
Commitments and the Facility A Commitments shall in each case be increased by an amount equal to 50% of the Incremental Amount or such other amount as may be required to comply with paragraph (iv) below;
|
|
(iv) |
an amount equal to the "Facility Discretionary Tranche Commitment" (as defined in the Back Stop Facility) of a lender under the Back Stop Facility minus any applicable "All Lender Consent Amount" (as defined in, and as applicable to, the
Back Stop Facility) as calculated on the Establishment Date shall be applied to increase the Revolving Facility Discretionary Tranche Commitment of that lender in its capacity as Lender under this Agreement;
|
|
(v) |
each Incremental Lender shall assume all the obligations of a Lender corresponding to the Commitments specified opposite its name in the Incremental Notice as if it had been an Original Lender;
|
|
(vi) |
each of the Obligors and each Incremental Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and that Incremental Lender would have assumed and/or acquired had that Incremental
Lender been an Original Lender;
|
|
(vii) |
each Incremental Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Incremental Lender and those Finance Parties would have assumed and/or acquired had
the Incremental Lender been an Original Lender; and
|
|
(viii) |
each Incremental Lender shall become a Party as a "Lender".
|
10.7 |
Notification of establishment
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
10.8 |
Incremental Amount fees
|
10.9 |
Incremental Amount costs and expenses
|
10.10 |
Prior amendments binding
|
10.11 |
Limitation of responsibility
|
|
(a) |
an "Existing Lender" were references to all the Lenders immediately prior to the Establishment Date;
|
|
(b) |
the "New Lender" were references to an "Incremental Lender"; and
|
|
(c) |
a "re-transfer" and "re-assignment" were references respectively to a "transfer" and "assignment".
|
11 |
INTEREST
|
11.1 |
Calculation of interest
|
|
(a) |
Margin; and
|
|
(b) |
LIBOR.
|
11.2 |
Payment of interest
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
11.3 |
Default interest
|
|
(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which,
subject to paragraph (b) below, is 2.00 percentage points higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a loan in the currency of the Unpaid Sum for successive
Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 11.3 shall be immediately payable by the Obligor on demand by the Agent.
|
|
(b) |
If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
(i) |
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
|
(ii) |
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2.00 percentage points higher than the rate which would have applied if that Unpaid Sum had not become due.
|
|
(c) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
|
(d) |
Additionally the rate of interest payable on any amount to which Clause 11.1 (Calculation of interest) continues to apply shall increase by 2.00 percentage points on the date following a written
notice served by the Agent to the Borrower following an Event of Default and whilst it is continuing.
|
11.4 |
Notification of rates of interest
|
11.5 |
Effective interest rate
|
12 |
INTEREST PERIODS
|
12.1 |
Selection of Interest Periods
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan is a Term Loan and has already been Utilised) in a Selection Notice.
|
|
(b) |
Subject to this Clause 12, the Borrower may select an Interest Period of six (6), three (3) or one (1) months or any other period agreed between the Borrower and the Agent (acting on the instructions of all the Lenders in relation to the
relevant Loan), provided however that the Borrower may not select a one (1) month Interest Period for a Loan more than three times during any calendar year.
|
|
(c) |
An Interest Period for a Loan shall not extend beyond the Termination Date.
|
|
(d) |
Each Interest Period for a Loan shall start on the relevant Utilisation Date or (if already made) on the last day of its preceding Interest Period.
|
|
(e) |
Each Selection Notice is irrevocable and must be delivered to the Agent by the Borrower not later than 12:00 p.m. three (3) Business Days before the start of the relevant Interest Period.
|
|
(f) |
If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph
|
|
(g) |
above, the relevant Interest Period will be three (3) months.
|
12.2 |
Non-Business Days
|
13 |
CHANGES TO THE CALCULATION OF INTEREST
|
13.1 |
Unavailability of Screen Rate
|
|
(a) |
Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period of a Loan, LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest
Period of that Loan.
|
|
(b) |
Reference Bank Rate: If no Screen Rate is available for LIBOR for the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate, LIBOR shall be the Reference Bank
Rate as of noon on the relevant Quotation Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.
|
|
(c) |
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for USD or Interest Period there shall be no LIBOR for that Loan and Clause 13.4 (Cost of funds) shall apply to that Loan for that Interest Period.
|
13.2 |
Calculation of Reference Bank Rate
|
|
(a) |
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by noon on the relevant Quotation Day, the Reference Bank Rate shall be calculated on the
basis of the quotations of the remaining Reference Banks.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
|
13.3 |
Market disruption
|
13.4 |
Cost of funds
|
|
(a) |
If this Clause 13.4 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
|
(i) |
the Margin; and
|
|
(ii) |
the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling three (3) Business Days after the Quotation Day (or, if earlier, on the date falling two (2) Business Days
before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever
source it may reasonably select.
|
|
(b) |
If this Clause 13.4 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the
rate of interest.
|
|
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
|
(d) |
If this Clause 13.4 applies pursuant to Clause 13.3 (Market disruption): and
|
|
(i) |
a Lender's Funding Rate is less than LIBOR; or
|
|
(ii) |
a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,
|
13.5 |
Notification to the Borrower
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
13.6 |
Break Costs
|
|
(a) |
The Borrower shall, within ten (10) Business Days of written demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the
last day of an Interest Period for that Loan or Unpaid Sum.
|
|
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue, and the Agent shall upon receipt thereof at
the written request of the Borrower provide the Borrower with a copy of such certificate.
|
14 |
FEES
|
14.1 |
Agency and arrangement fee
|
14.2 |
Commitment fee
|
|
(a) |
For the period commencing on the date of the Original Agreement and until the Termination Date, the Borrower shall pay to the Agent (for further distribution to the Lenders) a commitment fee at an annual rate equal to:
|
(i)
|
[***] per cent. of the applicable Margin on the daily undrawn and uncancelled amount of the Total Commitments, other than the Trade Finance Facility Commitments; and
|
(ii)
|
[***] per cent. of the applicable Guarantee Commission on the daily undrawn and uncalled amount of the Trade Finance Facility Commitments.
|
14.3 |
Fees payable in respect of Trade Finance Instruments
|
|
(a) |
The Borrower shall pay to the Issuing Bank:
|
(i)
|
an establishment fee in an amount of USD [***] for each Trade Finance Instrument requested by it, due and payable on the Issue Date of that Trade Finance Instrument;
|
(ii)
|
an amendment fee of USD [***] for each Trade Finance Instrument being amended, due and payable on the date the amendment becomes effective; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
(iii)
|
a fronting fee of [***] per cent. per annum calculated on the outstanding amount of each Trade Finance Instrument (calculated to be the amount certified by the Issuing Bank to be its maximum aggregate liability (actual or
contingent) under that Trade Finance Instrument) requested by it for the period from the issue of that Trade Finance Instrument until its Expiry Date.
|
|
(b) |
The Borrower shall pay to the Agent (for the account of each Lender) a Trade Finance Instrument fee in the Base Currency (computed at the rate which is the applicable Guarantee Commission) on the outstanding amount of each Trade Finance
Instrument (calculated to be the amount certified by the Issuing Bank to be its maximum aggregate liability (actual or contingent) under that Trade Finance Instrument) requested by it for the period from the issue of that Trade Finance
Instrument until its Expiry Date. This fee shall be distributed according to each Lender's L/C Proportion of that Trade Finance Instrument.
|
|
(c) |
The accrued Trade Finance Instrument fee and the fronting fee shall be payable in advance on the first day of each period of ninety (90) days (or such shorter period as shall end on the Expiry Date for that Trade Finance Instrument)
starting on the date of issue of that Trade Finance Instrument. If the outstanding amount of a Trade Finance Instrument is reduced, any Trade Finance Instrument fee or fronting fee accrued in respect of the amount of that reduction shall be
payable on the day that that reduction becomes effective.
|
|
(d) |
If the Borrower provides cash cover in respect of any Trade Finance Instrument:
|
|
(i) |
the Trade Finance Instrument fee payable for the account of each Lender and the fronting fee shall continue to be payable until the expiry of the Trade Finance Instrument; and
|
|
(ii) |
the Borrower shall be entitled to withdraw interest (if any) accrued on the cash cover to pay the fees described in paragraph (i) above.
|
|
(e) |
The minimum Guarantee Commission payable per annum on a Trade Finance Instrument is USD [***]
|
15 |
TAX GROSS UP AND INDEMNITIES
|
15.1 |
Definitions
|
|
(a) |
In this Agreement:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
Unless a contrary indication appears, in this Clause 15 a reference to "determines" or "determined" means a determination made in the absolute discretion of
the person making the determination.
|
15.2 |
Tax gross-up
|
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
|
(b) |
Each Obligor shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender or the Issuing Bank
shall notify the Agent on becoming so aware in respect of a payment payable to that Lender or the Issuing Bank. If the Agent receives such notification from a Lender or the Issuing Bank it shall notify the Borrower.
|
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have
been due if no Tax Deduction had been required.
|
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
|
(e) |
Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment
evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
|
(f) |
A Lender and each Obligor which makes a payment to which that Lender is entitled shall co- operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
|
15.3 |
Tax indemnity
|
|
(a) |
The Borrower shall (within ten (10) Business Days of written demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
|
(b) |
Paragraph (a) above shall not apply:
|
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
|
(ii) |
to the extent a loss, liability or cost:
|
|
(A) |
is compensated for by an increased payment under Clause 15.2 (Tax gross- up); or
|
|
(B) |
relates to a FATCA Deduction required to be made by a Party.
|
|
(c) |
A Protected Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 15.3, notify the Agent.
|
15.4 |
Tax Credit
|
|
(a) |
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
|
|
(b) |
that Finance Party has obtained, utilised and retained that Tax Credit,
|
15.5 |
Stamp taxes
|
15.6 |
VAT
|
|
(a) |
All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of
any VAT which is chargeable on such supply or supplies, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to
the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance
Document, and any Party other than the Recipient (the "Subject Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier
(rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The
Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.
|
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense,
including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
15.7 |
FATCA information
|
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:
|
|
(i) |
confirm to that other Party whether it is:
|
|
(A) |
a FATCA Exempt Party; or
|
|
(B) |
not a FATCA Exempt Party;
|
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of
information regime.
|
|
(b) |
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party
reasonably promptly.
|
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and paragraph (a)
|
(i)
|
above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(i) |
any law or regulation;
|
|
(ii) |
any fiduciary duty; or
|
|
(iii) |
any duty of confidentiality.
|
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where
paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested
confirmation, forms, documentation or other information.
|
15.8 |
FATCA Deduction
|
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA
Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall
notify the Borrower, the Agent and the other Finance Parties.
|
16 |
INCREASED COSTS
|
16.1 |
Increased costs
|
|
(a) |
Subject to Clause 16.3 (Exceptions) the Borrower shall, within ten (10) Business Days of a written demand by the Agent, pay for the account of a Finance Party or any of its Affiliates the amount
of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation, (ii) compliance with
any law or regulation made after the date of the Original Agreement or (iii) implementation of and compliance with Basel III, CRR and CRD IV, or (iv) any change in (or in the interpretation, administration or application of) Basel III, CRR
and CRD IV.
|
|
(b) |
In this Agreement: "Basel III" means:
|
|
(i) |
the consultations including the agreements on capital requirements, a leverage ratio and liquidity standards contained in such consultations "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel
III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December
2010, each as amended, supplemented and/or restated;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
the rules for global systemically important banks contained in the "Globally systemically important banks: assessments, methodology and the additional loss absorbency requirements – Rules text" published by the Basel Committee on Banking
Supervision in November 2011, as amended, supplemented and/or restated; and
|
|
(iii) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III.
|
|
(i) |
a reduction in the rate of return from the Facilities or on a Finance Party's (or its Affiliate´s) overall capital;
|
|
(ii) |
an additional or increased cost; or
|
|
(iii) |
a reduction of any amount due and payable under any Finance Document,
|
16.2 |
Increased cost claims
|
|
(a) |
A Finance Party intending to make a claim pursuant to Clause 16.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify
the Borrower in writing.
|
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
16.3 |
Exceptions
|
|
(a) |
Clause 16.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
|
(i) |
attributable to a Tax Deduction required by law to be made by an Obligor;
|
|
(ii) |
attributable to a FATCA Deduction required to be made by a Party;
|
|
(iii) |
compensated for by Clause 15.3 (Tax indemnity) (or would have been compensated for under Clause 15.3 (Tax indemnity) but was not so compensated solely
because any of the exclusions in paragraph (b) of Clause 15.3 (Tax indemnity) applied); or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(iv) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
|
(b) |
In this Clause 16, a reference to a "Tax Deduction" has the same meaning given to that term in Clause 15.1 (Definitions).
|
17 |
OTHER INDEMNITIES
|
17.1 |
Currency indemnity
|
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
|
(i) |
making or filing a claim or proof against that Obligor; or
|
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
17.2 |
Other indemnities
|
|
(a) |
the occurrence of any Event of Default;
|
|
(b) |
any cost, loss or liability incurred by each Finance Party in any jurisdiction arising or asserted under or in connection with any law relating to safety at sea, the Maritime Labour Convention 2006 or any Environmental or Social Law,
provided such claim arises due to breach of such laws by the Borrower and/or any technical and/or commercial manager of a Rig;
|
|
(c) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 32 (Sharing among the
Finance Parties);
|
|
(d) |
funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason
of default or negligence by that Finance Party alone);
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(e) |
issuing or making arrangements to issue a Trade Finance Instrument requested by the Borrower in a Utilisation Request but not issued by reason of the operation of any one or more of the provisions of this Agreement (other than by reason
of default or negligence by that Finance Party alone);
|
|
(f) |
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or
|
|
(g) |
any civil penalty or fine against, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by the Agent or any Finance Party solely as a result of a breach by a Relevant Person of any
Sanctions.
|
17.3 |
Indemnity to the Agent
|
|
(a) |
any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
|
|
(i) |
any failure by the Borrower to comply with its obligations under Clause 19 (Costs and expenses);
|
|
(ii) |
investigating any event which it reasonably believes is a Default;
|
|
(iii) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(iv) |
any default by the Borrower in the performance of any of the obligations expressed to be assumed by it under the Finance Documents;
|
|
(v) |
the taking, holding, protection or enforcement of the Transaction Security;
|
|
(vi) |
the exercise of any of its rights, powers, discretions, authorities and remedies vested in the Agent by the Finance Parties or by law; or
|
|
(vii) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and
|
|
(b) |
any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) in acting as Agent under the Finance Documents.
|
18 |
MITIGATION BY THE LENDERS
|
18.1 |
Mitigation
|
|
(a) |
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate (unless the Borrower expressly request it in writing not to do so) any circumstances which arise and which would result in any amount
becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Mandatory Prepayment- Illegality) or in respect of the Issuing Bank, Clause 9.2 (Illegality
in relation to the Issuing Bank), Clause 15 (Tax gross- up and indemnities) or Clause 16 (Increased costs) including (but not limited to)
transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
18.2 |
Limitation of liability
|
|
(a) |
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 18.1 (Mitigation).
|
|
(b) |
A Finance Party is not obliged to take any steps under Clause 18.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
19 |
COSTS AND EXPENSES
|
19.1 |
Transaction expenses
|
|
(a) |
this Agreement and any other documents referred to in this Agreement; and
|
|
(b) |
any other Finance Documents executed after the date of the Original Agreement.
|
19.2 |
Amendment costs
|
19.3 |
Enforcement costs
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
20 |
SECURITY
|
20.1 |
Security
|
|
(a) |
The obligations and liabilities of each of the Obligors under this Agreement and the other Finance Documents and the Hedging Agreements, including without limitation any derived liability whatsoever of any Obligor towards the Finance
Parties and the Hedging Banks in connection therewith, shall be secured, on a cross collateralised basis, by:
|
|
(i) |
the Mortgages;
|
|
(ii) |
the Assignment Agreements;
|
|
(iii) |
the Share Pledge Agreements;
|
|
(iv) |
any Intra-Group Loan Assignment;
|
|
(v) |
the Earnings Account Pledges;
|
|
(vi) |
any Incremental Supplemental Security; and
|
|
(vii) |
the unconditional and irrevocable on-demand guarantee and indemnity set out in Clause 21 (Guarantee and indemnity) hereof.
|
|
(b) |
The Obligors' obligations and liabilities under any Hedging Agreements shall rank on a pari passu basis with the obligations and liabilities of the Obligors under the other Finance Documents also in relation to the Security Documents and
any enforcement proceeds shall be distributed in accordance with Clause 32.6 (Distribution of enforcement proceeds).
|
|
(c) |
If requested by the Borrower in order to accommodate the request of charterers or other customers for the employment of any of the Rigs, the Agent shall (on behalf of the Finance Parties) issue such letters of undertaking, on terms and
conditions acceptable to the Agent (on behalf of the Finance Parties), in favour of any such charterer or customer assuring the quiet enjoyment of the Rig by the Agent (on behalf of the Finance Parties) as long as no termination event has
occurred and is continuing under the applicable charter or employment contract.
|
20.2 |
Further assignments
|
|
(a) |
In the event that a Rig Owner or Intra-Group Charterer enters into a Qualifying Employment Contract that Rig Owner (and any relevant Guarantor) shall prior to the relevant commencement date assign, in form and substance acceptable to the
Agent, all its claims, rights, title and interest to any charter rights under that Qualifying Employment Contract and the Earnings accruing thereunder in favour of the Agent (on behalf of the Finance Parties and the Hedging Banks).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
In the event that an Intra-Group Loan is granted to a Rig Owner or a Rig Owner grants an Intra-Group Loan, that Intra-Group Loan shall promptly after its granting be assigned, in form and substance acceptable to the Agent, in favour of
the Agent (on behalf of the Finance Parties and the Hedging Banks).
|
20.3 |
Security - Hedging Agreements
|
21 |
GUARANTEE AND INDEMNITY
|
21.1 |
Guarantee obligations
|
|
(a) |
guarantees to each Finance Party and each Hedging Bank as and for its own debt and not merely as surety the punctual performance by each Obligor of that Obligor's obligations under the Finance Documents and the Hedging Agreements (the "Guaranteed Obligations");
|
|
(b) |
undertakes with each Finance Party and each Hedging Bank that whenever an Obligor does not pay any amount when due under or in connection with the Guaranteed Obligations, it shall immediately on demand (Nw. påkravsgaranti) pay that amount as if it was the principal obligor, and no Guarantor shall have any right of reservation or objection to such demand for payment by the Agent and no conflict or dispute of whatsoever nature,
including without limitation any defences based on underlying agreements, between the Agent and an Obligor shall have an impact on a Guarantor's obligation to pay under the guarantee set out in this Clause 21; and
|
|
(c) |
agrees with each Finance Party and each Hedging Bank that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party and/or and that
Hedging Bank immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance
Document or any of the Hedging Agreements on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 21 if the amount claimed had
been recoverable on the basis of a guarantee.
|
21.2 |
Maximum liability
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
21.3 |
Number of claims
|
21.4 |
Continuing guarantee
|
21.5 |
Reinstatement
|
21.6 |
Waiver of defences
|
|
(a) |
The obligations of each Guarantor under this Clause 21 will not be affected by an act, omission, matter or thing which, but for this Clause 21, would reduce, release or prejudice any of its obligations under this Clause 21 (without
limitation and whether or not known to it or any Finance Party or a Hedging Bank) including:
|
|
(i) |
any time, waiver or consent granted to, or composition with, any member of the Group or other person;
|
|
(ii) |
the release of any member of the Group or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
|
(iii) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any member of the Group or other person or any non-presentation or
non- observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(iv) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any member of the Group or any other person;
|
|
(v) |
any amendment, supplement, extension restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document, the Hedging Agreement or any other document or security including, without limitation, any
change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document, Hedging Agreements or other document or security;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(vi) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, Hedging Agreement or any other document or security; or
|
(vii)
|
any insolvency, liquidation, winding up, strike-off or similar proceedings.
|
|
(b) |
Each Guarantor specifically waives all defences based on the Finance Documents, the Hedging Agreements any relationship or circumstance in connection therewith and any transactions made in connection therewith.
|
21.7 |
Financial Agreements Act
|
|
(a) |
§ 62 (1) (a) (to be notified of any security the giving of which was a precondition for the making of any Utilisation, but which has not been validly granted or has lapsed);
|
|
(b) |
§ 63 (1) - (2) (to be notified of any event of default hereunder and to be kept informed thereof);
|
|
(c) |
§ 63 (3) (to be notified of any extension granted to any member of the Group in payment of principal and/or interest);
|
|
(d) |
§ 63 (4) (to be notified of any member of the Group's bankruptcy proceedings or debt reorganisation proceedings and/or any application for the latter);
|
|
(e) |
§ 65 (3) (that the consent of the Guarantor is required for the Guarantor to be bound by amendments to the Finance Documents and the Hedging Agreements that may be detrimental to its interest);
|
|
(f) |
§ 66 (1) - (2) (that the Guarantor shall be released from its liabilities hereunder if Security which was given, or the giving of which was a precondition for the making of any Utilisation, is
released by the Finance Parties without the consent of the Guarantor);
|
|
(g) |
§ 66 (3) (that the Guarantor shall be released from its liabilities hereunder if, without its consent, Security the giving of which was a precondition for the making of any Utilisation was not
validly granted);
|
|
(h) |
§ 67 (1) - (2) (about reduction of the Guarantor's liabilities hereunder);
|
|
(i) |
§ 67 (4) (that the Guarantor's liabilities hereunder shall lapse after ten (10) years, as the Guarantor shall remain liable hereunder as long as any amount is outstanding in respect of the
Guaranteed Obligations);
|
|
(j) |
§ 70 (as the Guarantor shall have no right of subrogation into the rights of the Finance Parties or a Hedging Bank under the Finance Documents or the Hedging Agreements until and unless the
Finance Parties and the Hedging Banks shall have received all amounts due or to become due to them in respect of the Guaranteed Obligations);
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(k) |
§ 71 (as the Finance Parties and the Hedging Banks shall have no liability first to make demand upon or seek to enforce remedies against any member of the Group or any of them or any other
Security provided in respect of any member of the Group's liabilities under the Finance Documents and the Hedging Agreements before demanding payment under or seeking to enforce the guarantee created hereunder);
|
|
(l) |
§ 72 (as all interest and default interest due in respect of the Guaranteed Obligations shall be secured hereunder);
|
|
(m) |
§ 73 (1) - (2) (as all costs and expenses related to a default in respect
of the Guaranteed Obligations shall be secured hereunder); and
|
|
(n) |
§ 74 (1) - (2) (as the Guarantor shall make no claim against any member of
the Group for payment until and unless the Finance Parties and the Hedging Banks first shall have received all amounts due or to become due to them in respect of the Guaranteed Obligations and all Commitments have been fully cancelled or
otherwise ceased in full to be in effect).
|
21.8 |
Guarantor intent
|
21.9 |
Immediate recourse
|
21.10 |
Appropriations
|
|
(a) |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party or that Hedging Bank (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in
such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantors shall not be entitled to the benefit of the same; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 21.
|
21.11 |
Deferral of Guarantor's rights
|
|
(a) |
Until all amounts which may be or become payable by the members of the Group under or in connection with the Finance Documents and the Hedging Agreements have been irrevocably paid in full and unless the Agent otherwise directs, no
Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 21:
|
|
(i) |
to be indemnified by any member of the Group;
|
|
(ii) |
to claim any contribution from any other guarantor of any member of the Group's obligations under the Finance Documents and the Hedging Agreements;
|
|
(iii) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties or the Hedging Banks under the Finance Documents or the Hedging Agreements or of any other guarantee or
security taken pursuant to, or in connection with, the Finance Documents or the Hedging Agreements by any Finance Party or any Hedging Bank;
|
|
(iv) |
to bring legal or other proceedings for an order requiring any member of the Group to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under this Clause 21;
|
|
(v) |
to exercise any right of set-off against any member of the Group; and/or
|
|
(vi) |
to claim or prove as a creditor of any member of the Group in competition with any Finance Party or any Hedging Bank.
|
|
(b) |
If a Guarantor receives any benefit, payment or distribution in relation to such rights as referred to in paragraph (a) above, it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be
or become payable to the Finance Parties or a Hedging Bank by any member of the Group under or in connection with the Finance Documents or a Hedging Agreement to be repaid in full on trust for the Finance Parties or the Hedging Banks and
shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 33 (Payment mechanics).
|
21.12 |
Additional security
|
21.13 |
Marshall Islands Limitation Language
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
22 |
REPRESENTATIONS AND WARRANTIES
|
22.1 |
Status
|
|
(a) |
It is a limited liability company or exempted company with limited liability, duly incorporated, in good standing and validly existing under the law of its jurisdiction of incorporation.
|
|
(b) |
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
22.2 |
Binding obligations
|
22.3 |
Non-conflict with other obligations
|
|
(a) |
any law or regulation applicable to it;
|
|
(b) |
its or any of its Subsidiaries' constitutional documents; or
|
|
(c) |
any agreement or instrument binding upon it or any of its Subsidiaries or any of its Subsidiaries' assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
22.4 |
Power and authority
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
22.5 |
Validity and admissibility in evidence
|
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;
|
|
(b) |
to make the Finance Documents to which it is a party admissible in evidence in its Relevant Jurisdictions; and
|
|
(c) |
otherwise in connection with the execution, delivery, performance, validity or enforceability of this Agreement and the Finance Documents and any other agreements and instruments required or contemplated hereunder,
|
22.6 |
Authorisations
|
22.7 |
Governing law and enforcement
|
|
(a) |
the choice of governing law of the Finance Documents will be recognised and enforced in its Relevant Jurisdictions; and
|
|
(b) |
any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.
|
22.8 |
Insolvency
|
22.9 |
Deduction of Tax
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
22.10 |
No filing or stamp taxes
|
|
(a) |
registration of the Mortgages in the relevant Approved Ship Register (and payment of associated fees); and
|
|
(b) |
payment of Cayman Islands stamp duty if a Finance Document is executed in or is brought to the Cayman Islands.
|
22.11 |
No default
|
|
(a) |
No Event of Default, Default or prepayment event pursuant to Clause 9 (Prepayment and Cancellation) is existing or continuing or might reasonably be expected to result from the making of any
Utilisation or the entry into, the performance of, or any transaction contemplated by, any Finance Document.
|
|
(b) |
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or
termination event (however described) under any other agreement or instrument which is binding on it or to which its assets are subject which might have a Material Adverse Effect.
|
22.12 |
No misleading information
|
|
(a) |
Any factual information provided by any Obligor for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
|
(b) |
Any financial projections provided to the Finance Parties in connection with this Agreement have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
|
(c) |
Nothing has occurred or been omitted from the information given to the Finance Parties in connection with this Agreement and no information has been given or withheld that results in the information given to the Finance Parties in
connection with this Agreement being untrue or misleading in any material respect.
|
22.13 |
Financial statements
|
(a) |
The Original Financial Statements were prepared in accordance with the Approved Accounting Principles consistently applied, and fairly represent its consolidated financial condition and operations during the relevant financial year.
|
(b) |
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group) since the date of the financial statements most recently delivered to the Agent pursuant
to Clause 23.1 (Financial statements).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
No bank deposits of any member of the Group (other than bank deposits in the names of Borr Skald Inc., Borr Jack-Up XXXII Inc. or Borr Saga Inc.) are subject to contractual or other restrictions limiting the distribution of bank deposits
to other members of the Group in a manner which causes such funds to not be considered as free and available liquidity of the Borrower in accordance with the Approved Accounting Principles.
|
22.14 |
Pari passu ranking
|
22.15 |
No Security
|
22.16 |
No immunity
|
22.17 |
No proceedings pending or threatened
|
22.18 |
No breach of laws
|
|
(a) |
It has not (and none of its Subsidiaries has) breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
|
|
(b) |
No labour disputes are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against any Obligor which have or are reasonably likely to have a Material Adverse Effect.
|
22.19 |
Compliance with Environmental or Social Laws and other laws
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
It is in compliance in all material respects with the provisions of all Environmental or Social Laws applicable to it and to the best of its knowledge and belief (having made due and careful enquiry).
|
|
(b) |
No material Environmental or Social Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against it or any Manager.
|
22.20 |
Taxation
|
22.21 |
Anti-corruption law
|
22.22 |
Sanctions
|
|
(a) |
It, each other member of the Group, their Affiliates, their joint ventures, and their respective directors, officers, employees, agents or representatives has been and is in compliance with Sanctions;
|
|
(b) |
Neither it, nor any other member of the Group, their Affiliates, their joint ventures, and their respective directors, officers, employees, agents or representatives:
|
|
(i) |
is a Restricted Party, acts directly or indirectly on behalf of a Restricted Party or is involved in any transaction through which it is likely to become a Restricted Party;
|
|
(ii) |
is engaging, or has engaged in any transaction, action or conduct that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions; or
|
|
(iii) |
is subject to or involved in any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority or any other relevant third party.
|
|
(c) |
No Utilisation, nor the proceeds from any Utilisation, has been used, directly or indirectly, to lend, contribute, provide or has otherwise been made to fund or finance any business activities or transactions:
|
|
(i) |
of or with a Restricted Party; or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
in any other manner which would result in any member of the Group or any Finance Party being in breach of any Sanctions or becoming a Restricted Party.
|
22.23 |
Ranking
|
22.24 |
Good title to assets
|
22.25 |
Legal and beneficial ownership
|
22.26 |
Group structure chart
|
22.27 |
Accounting reference date
|
22.28 |
Centre of main interest and establishments
|
22.29 |
No adverse consequences
|
|
(a) |
It is not necessary under the laws of its Relevant Jurisdictions:
|
|
(i) |
in order to enable any Finance Party to enforce its rights under any Finance Document; or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
by reason of the execution of any Finance Document or the performance by it of its obligations under any Finance Document,
|
|
(b) |
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in its Relevant Jurisdictions by reason only of the execution, performance and/or enforcement of any Finance Document.
|
22.30 |
The Rigs
|
|
(a) |
in the absolute ownership of the relevant Rig Owner, free and clear of all encumbrances (other than current crew wages and the relevant Mortgage) and that Rig Owner will be the sole, legal and beneficial owner of that Rig;
|
|
(b) |
registered in the name of the relevant Rig Owner with an Approved Ship Registry under the laws and flag applicable for the relevant Approved Ship Registry;
|
|
(c) |
in good and safe condition and state of repair consistent with good operational standards in every way and fit for service (or in accordance with the applicable stacking plan when in stacked mode); and
|
|
(d) |
classed with an Approved Classification Society, free of all overdue requirements and other recommendations affecting class.
|
22.31 |
Financial Indebtedness
|
22.32 |
Land in the British Virgin Islands
|
22.33 |
Shares
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
22.34 |
Repetition
|
23 |
INFORMATION UNDERTAKINGS
|
23.1 |
Financial statements
|
|
(a) |
subject to paragraph (a) of Clause 23.8 in the case of the financial year ended 31 December 2019, as soon as the same become available, but in any event within 120 days after the end of each of its financial years, the Borrower's audited
consolidated financial statements for that financial year together with unaudited accounts of each Rig Owner;
|
|
(b) |
as soon as the same become available, but in any event within 75 days after the end of each of its financial quarter, the Borrower's unaudited consolidated financial statements for that financial quarter;
|
|
(c) |
as soon as it becomes available, but in any event by 30 January each year, an annual budget for the financial year; and
|
|
(d) |
as soon as they become available, but in any event within 30 days of the end of each financial quarter, updated three year liquidity forecasts, addressing with a reasonable level of detail (1) revenue, operating costs, interest expense,
taxes, (2) cashflow from operations, capex, debt repayment and (3) assets, equity, debt and cash balance projections.
|
23.2 |
Provision and contents of Compliance Certificate
|
|
(a) |
The Borrower shall supply to the Agent, with each set of consolidated financial statements delivered pursuant to Clause 23.1 (Financial statements), a Compliance Certificate setting out (in
reasonable detail) computations as to compliance with Clause 24 (Financial covenants) and, (in connection with the second quarter and year end compliance certificates only) the Market Value of the
Rigs.
|
|
(b) |
Each Compliance Certificate shall be signed by a director or the CFO of the Borrower.
|
23.3 |
Requirements as to financial statements
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 23.1 (Financial statements) is prepared using the relevant Approved Accounting Principles, accounting
practices and policies consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in any relevant Approved
Accounting Principles, accounting practices or policies and its auditors deliver to the Agent:
|
|
(i) |
a description of any change necessary for those financial statements to reflect the Approved Accounting Principles, accounting practices and policies upon which the Original Financial Statements were prepared; and
|
|
(ii) |
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 24 (Financial covenants) has been complied with and make
an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
23.4 |
Market valuations
|
|
(a) |
The Borrower shall together with each Compliance Certificate (in connection with the second quarter and year end compliance certificates only) forward to the Agent updated valuation reports setting out the Market Value of the Rigs.
|
|
(b) |
If an Event of Default has occurred and is continuing, the Borrower shall deliver such additional valuation reports for the purpose of determining the Market Value of the Rigs at such times as the Agent may require.
|
|
(c) |
All valuations referred to in paragraphs (a) and (b) above shall be addressed to the Agent (unless otherwise agreed between the Borrower and the Lenders, acting reasonably or unless the Approved Broker requires that such valuations are
addressed to the Borrower as the entity ordering the valuation report) and obtained at the cost of the Borrower.
|
|
(d) |
The Agent may, at any time, obtain such additional valuation reports for the purpose of determining the Market Value of the Rigs as it deems appropriate after consultation with the Lenders. Such valuations shall be at the cost of the
Lenders.
|
|
(e) |
For the avoidance of doubt, if additional valuation reports are obtained in accordance with paragraph (b) and/or paragraph (d) above, then the Market Value of the Rigs shall be calculated based on the valuation reports provided in
accordance with paragraph (a) and such additional valuation reports, and compliance with Clause 26.12 (Minimum Value) shall be demonstrated based on the Market Value as determined by the average of
the valuation reports provided in accordance with paragraph (a) and such additional valuation reports.
|
23.5 |
Information: miscellaneous
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally;
|
|
(b) |
promptly upon becoming aware of them, the details of any material default, litigation, arbitration or administrative proceedings;
|
|
(c) |
promptly, such information as the Agent may reasonably require about any asset subject to the Transaction Security and compliance of the Obligors with the terms of any Finance Document;
|
|
(d) |
such further information regarding the financial condition, assets, business and operations of the Group as the Agent (on behalf of the Lenders) may reasonably request;
|
|
(e) |
such other information regarding the financial condition, business and operations of any member of the Group as the Lenders may reasonably request and which can be delivered without breach of any confidentiality undertakings or any
applicable law or rules of a securities/regulatory exchange; and
|
|
(f) |
ensure that any Obligor provides information for any "know your customer" checks required to be carried out by the Agent and/or any of the Lenders.
|
23.6 |
Notification of Default and Change of Control
|
|
(a) |
Each Obligor shall notify the Agent (on behalf of the Finance Parties) of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
|
|
(b) |
Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two (2) of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).
|
|
(c) |
Each Obligor shall notify the Agent of the occurrence of any Change of Control promptly upon becoming aware of its occurrence.
|
23.7 |
"Know your customer" checks
|
|
(a) |
If:
|
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) or the compliance with any law or regulation after the date of the Original Agreement;
|
|
(ii) |
any change in the status of an Obligor after the date of the Original Agreement; or
|
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer, obliges the Agent or any Lender (or, in the case of paragraph
(iii) above, any prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request
of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event
described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it
has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it
has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
23.8 |
Additional information undertakings
|
|
(a) |
deliver its audited consolidated financial statements together with unaudited accounts of each Rig Owner by the date its audited consolidated financial statements are required to be filed or published under regulations of the Oslo Stock
Exchange (OSE), New York Stock Exchange (NYSE) or US Securities and Exchange Commission (SEC) and in any case not later than 30 June 2020;
|
|
(b) |
provide a written presentation to the Finance Parties and their advisors no later than 30 August 2020 setting out specific proposals to improve the liquidity position of the Group which are reasonably likely to be implementable and which
are reasonably likely to be implemented prior to 31 December 2020 (the “Specific Proposals”) and reasonable detail of the steps taken and timelines for further steps to be taken in connection with
such Specific Proposals (the “Action Plan”), to be followed by a management teleconference presenting such proposals to the Lenders no later than 3 Business Days after provision of the Action Plan;
|
|
(c) |
provide a written update on the Action Plan (including an update in respect of each of the Specific Proposals together with a summary of steps taken, an update on timeline and a reasonable explanation of such steps and anticipated
timeline) on 31 March, 30 June, 30 September and 31 December each year, to be followed by a conference call no later than 3 Business Days after provision of the relevant update on the Action Plan; and
|
|
(d) |
provide liquidity and cash flow forecasts for the period until 31 December 2021 on the 15th Business Day of each month from the Effective Date until the Action Plan has in the opinion of the Majority Lenders been implemented.
|
23.9 |
Information: Sanctions
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
promptly upon becoming aware of them, the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions against it, any of its direct or indirect owners, Subsidiaries, any of their joint ventures or any
of their respective directors, employees, officers, agents or affiliates as well as information on what steps are being taken with regards to answer or oppose to such inquiry, claim, action, suit proceeding or investigation; and
|
|
(b) |
promptly upon becoming aware of it, notification that any of its direct or indirect owners, Subsidiaries, any of their joint ventures or any of their respective directors, employees, officers, agents or affiliates has been designated as
a Restricted Party.
|
24 |
FINANCIAL COVENANTS
|
24.1 |
Financial definitions
|
|
(a) |
excluding bank deposits that are pledged, save to the extent that the relevant member of the Group may freely use such bank deposits prior to the occurrence of an Event of Default, provided that such bank deposits shall only constitute
“Cash” prior to the occurrence of an Event of Default; and
|
|
(b) |
not including any Ring Fenced Liquidity.
|
|
(a) |
instalments on long-term debt which fall due during the next twelve months;
|
|
(b) |
paid-in-kind interest; and
|
|
(c) |
liabilities arising under onerous contracts reclassified from long term to short term.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
Cash:
|
|
(b) |
any Undrawn Revolving Credit Facility; and
|
|
(c) |
certificates of deposits or marketable debt securities (included money market funds) with A-rating or better and a maturity of twelve (12) months or less after the relevant date of calculation and which can be realised and applied
against the Loans within one month.
|
24.2 |
Calculations
|
|
(a) |
Except as provided to the contrary in this Agreement, an accounting term used in this Clause 24 is to be construed in accordance with the principles applied in connection with the Original Financial Statements.
|
|
(b) |
No item must be credited or deducted more than once in any calculation under this Clause 24.
|
24.3 |
Book Equity Ratio
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
at all times until and including 31 December 2021 have a Book Equity Ratio equal to or higher than 25 per cent.; and
|
|
(b) |
at all times on or after 1 January 2022 have a Book Equity Ratio equal to or higher than 40 per cent..
|
24.4 |
Working Capital
|
24.5 |
Minimum Liquidity
|
|
(a) |
at all times from and including the Effective Date to and including 31 December 2020 have not less than USD 5,000,000 in Cash;
|
|
(b) |
at all times from and including 1 January 2021 to and including 30 June 2021 have not less than USD 10,000,000 in Cash;
|
|
(c) |
at all times from and including 1 July 2021 to and including 30 September 2021 have not less than USD 15,000,000 in Cash;
|
|
(d) |
at all times from and including 1 October 2021 to and including 31 December 2021 have not less than USD 20,000,000 in Cash; and
|
|
(e) |
at all times on and after 1 January 2022, have a Free Liquidity equivalent to no less than the higher of:
|
(i)
|
USD 30,000,000; and
|
|
(ii) |
3.00 per cent of the aggregate of Net Interest Bearing Debt and Ring Fenced Liquidity.
|
24.6 |
Debt Service Cover Ratio
|
24.7 |
Most Favoured Nation – Financial Covenants
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
25 |
GENERAL UNDERTAKINGS
|
25.1 |
Ownership
|
25.2 |
Authorisations
|
|
(a) |
Each Obligor shall promptly:
|
|
(i) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
|
(ii) |
supply certified copies to the Agent of,
|
|
(b) |
Each Obligor shall upon written request by the Agent obtain or cause to be obtained, at the time the same are required, maintain or cause to be maintained in full force and effect and promptly renew or cause to be renewed and comply in
all material respects with the conditions and restrictions (if any) imposed in, or in connection with, every Authorisation required to be obtained and maintained in order to continue the performance and operation of the Rigs under any
contract entered into in respect of it and any law and regulation to which it may be subject.
|
25.3 |
Environmental compliance
|
|
(a) |
comply with all Environmental or Social Laws;
|
|
(b) |
obtain, maintain and ensure compliance with all requisite Environmental Permits; and
|
|
(c) |
implement procedures to monitor compliance with and to prevent liability under any Environmental or Social Law,
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
25.4 |
Environmental or Social claims
|
|
(a) |
any Environmental or Social Claim against it or any member of the Group which is current, pending or threatened; and
|
|
(b) |
any facts or circumstances which are reasonably likely to result in any Environmental or Social Claim being commenced or threatened against it or any member of the Group,
|
25.5 |
Anti-corruption law
|
|
(a) |
No Obligor shall (and the Borrower shall ensure that no other member of the Group will) directly or indirectly use the proceeds of the Facilities for any purpose which would breach any applicable anti-corruption laws.
|
|
(b) |
Each Obligor shall (and the Borrower shall ensure that each other member of the Group will):
|
|
(i) |
conduct its businesses in compliance with applicable anti-corruption laws; and
|
|
(ii) |
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
25.6 |
Compliance with laws and Sanctions
|
|
(a) |
Each Obligor shall (and the Obligors shall procure that each Manager and the Permitted Holdco will):
|
|
(i) |
comply in all respect with all laws and regulations to which it may be subject, including Sanctions; and
|
|
(ii) |
without limiting paragraph (i) above, not employ a Rig nor allow its employment, operation or management in any manner contrary to any applicable law or regulation, including but not limited to Sanctions.
|
|
(b) |
Each Obligor shall (and the Obligors shall procure that parties acting on its behalf will) observe and abide with, including but not limited to, any applicable law, official requirement or other regulatory measure or procedure
implemented to combat money laundering (as defined in Article 1 of the Directive 2005/60/EF (Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the
purpose of money laundering and terrorist financing) amending Council Directive 91/308, as amended from time to time).
|
|
(c) |
Each Obligor shall ensure that none of them, nor any other member of the Group, respective directors, officers, employees, agents or representatives or any other persons acting on any of their behalf:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(i) |
is or will become a Restricted Party;
|
|
(ii) |
is in breach of Sanctions;
|
|
(iii) |
causes (or will cause) a breach of Sanctions by any Finance Party; and/or
|
|
(iv) |
take any action or make any omission that results, or is reasonably likely to result, in it or any Finance Party becoming a Restricted Party.
|
|
(d) |
No Obligor shall (and the Borrower shall ensure that no other Relevant Person or the Permitted Holdco will) take any action or make any omission that results, or is reasonably likely to result, in it or any Finance Party becoming a
Restricted Party or otherwise a target of sanctions ("target of sanctions") signifying an entity or person ("Target") that is a target of laws, regulations or
orders concerning any trade, economic or financial sanctions or embargoes by virtue of prohibitions and/or restrictions being imposed on any US person or other legal or natural person subject to the jurisdiction or authority of a US
Sanctions Authority which prohibit or restrict them from them engaging in trade, business or other activities with such Target without all appropriate licences or exemptions issued by all applicable US Sanctions Authorities).
|
|
(e) |
Each Obligor undertakes that it and each director, officer, agent, employee or person acting on behalf of the Obligor or the Permitted Holdco, is not a Restricted Party and does not act directly or indirectly on behalf of a Restricted
Party.
|
|
(f) |
No Obligor shall, (and shall ensure that the Permitted Holdco will not) use any revenue or benefit derived from any activity or dealing with a Restricted Party in discharging any obligation due or owing to the Finance Parties and/or the
Hedging Banks.
|
|
(g) |
Each Obligor shall (and shall ensure that the Permitted Holdco will) procure that no proceeds from any activity or dealing with a Restricted Party are credited to any bank account held with any Finance Party or any affiliate of a Finance
Party in its name.
|
|
(h) |
No Obligor (and shall ensure that the Permitted Holdco will not) shall directly or indirectly use the proceeds of a Loan, or lend or contribute or otherwise make available all or any part of such proceeds to any subsidiary, joint venture
partner, Relevant Person, Affiliate or any other person to fund activities or business of or with any person, or in any country or territory, that, at the time of such funding is a Restricted Party or in any other manner that would result
in a violation of Sanctions by any person (including any person participating in the loan hereunder, whether as a Finance Party or otherwise).
|
25.7 |
Taxation
|
|
(a) |
such payment is being contested in good faith;
|
|
(b) |
adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Agent under 23.1 (Financial
statements); and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
such payment can be lawfully withheld and failure to pay those Taxes does not have or its not reasonably likely to have a Material Adverse Effect.
|
25.8 |
Merger
|
25.9 |
Change of business
|
25.10 |
Restriction on business - Guarantors
|
25.11 |
Investments and Acquisitions
|
|
(a) |
No Obligor shall make any further investments or acquisitions.
|
|
(b) |
Paragraph (a) does not apply to:
|
|
(i) |
any investments or acquisitions made with the prior written consent of the Majority Lenders; or
|
|
(ii) |
any investments related to the Rigs (or in the case of any Intermediate Holding Company, in relation to any rig owned by any member of the Group) in the ordinary course of business.
|
25.12 |
Preservation of assets
|
25.13 |
Pari passu ranking
|
25.14 |
Negative pledge
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
no Obligor shall create or permit to subsist any Security over any of its present or future assets, rights or revenues being subject to the Transaction Security, other than pursuant to the Security Documents;
|
|
(b) |
no Rig Owner shall create or permit to subsist any Security over any of its present or future assets, rights or revenues, other than pursuant to the Security Documents;
|
|
(c) |
no Guarantor shall:
|
|
(i) |
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
|
|
(ii) |
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
|
(iii) |
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
|
(iv) |
enter into any other preferential arrangement having a similar effect,
|
|
(d) |
the Borrower shall not, and will procure that each member of the Group shall not, create or permit to subsist any Security over rigs “Atla” and “Balder”; and
|
|
(e) |
paragraphs (a), (b), (c) and (d) above do not apply to any Security or Quasi-Security:
|
|
(i) |
any netting or set-off arrangement entered into by any member of the relevant Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;
|
|
(ii) |
any lien arising by operation of law and in the ordinary course of trading and securing obligations not more than thirty (30) days overdue;
|
|
(iii) |
any Security entered into pursuant to any Finance Document or Hedging Agreement;
|
|
(iv) |
any Permitted Maritime Lien;
|
|
(v) |
any Permitted Transaction;
|
|
(vi) |
any Security or Quasi-Security existing on the date of the Original Agreement; or
|
|
(vii) |
Security or Quasi-Security consented to in writing by the Agent (acting upon instructions from the Lenders).
|
25.15 |
Market terms
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
25.16 |
Financial Indebtedness
|
|
(a) |
Except as permitted under paragraph (b) below, no Guarantor shall incur or allow to remain outstanding any Financial Indebtedness.
|
|
(b) |
Paragraph (a) above does not apply to Financial Indebtedness which:
|
|
(i) |
is incurred under the Finance Documents or any Hedging Agreement;
|
|
(ii) |
is incurred by way of an Intra-Group Loan, provided always that (a) no Default is then in existence or will occur from such disposition, (b) after giving effect to such disposition, the Borrower will be in compliance with the financial
covenants in Clause 21 (Financial covenants), (c) Intra-Group Loans shall be fully subordinated to the Facilities and any obligations under the Hedging Agreements and (d) any creditor of an
Intra-Group Loan assigns by way of security its claims under that Intra- Group Loan to the Agent (on behalf of the Finance Parties and the Hedging Banks) on the establishment of that Intra-Group Loan;
|
|
(iii) |
is incurred by an Intermediate Holding Company under (i) the EUROBOND or (ii) under any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a
bank or financial institution; and the amount of any liability in respect of any such guarantee or indemnity;
|
|
(iv) |
was existing at the date of the Original Agreement; or
|
|
(v) |
is incurred with the consent of the Lenders.
|
25.17 |
Financial Support
|
|
(a) |
by operation of cash pooling arrangements within the Group;
|
|
(b) |
in the ordinary course of operation of the Rigs; or
|
|
(c) |
under (i) any Intra-Group Loan or (ii) any other loan or credit which is fully subordinated to the Facilities and any obligations under the Hedging Agreements provided that (A) no Default is then in existence or will occur from such
disposition (B) after giving effect to such disposition, the Borrower will be in compliance with the financial covenants in Clause 24 (Financial covenants);
|
25.18 |
Financial assistance
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
25.19 |
Insurance
|
|
(a) |
Each Obligor shall maintain insurances on and in relation to its business and assets against those risks and to the extent as is usual for companies carrying on the same or substantially similar business.
|
|
(b) |
All insurances must be with reputable independent insurance companies or underwriters.
|
25.20 |
Further assurance
|
|
(a) |
Each Obligor shall (and the Borrower shall procure that each other member of the Group that is a provider of Transaction Security will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages,
charges, notices and instructions) as the Agent may reasonably specify (and in such form as the Agent may reasonably require in favour of the Agent or its nominee(s)):
|
|
(i) |
to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are
intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law;
|
|
(ii) |
to confer on the Agent or confer on the Finance Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Security
Documents; and/or
|
|
(iii) |
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.
|
|
(b) |
Each Obligor shall (and the Borrower shall procure that each other member of the Group that is a provider of Transaction Security will) take all such action as is available to it (including making all filings and registrations) as may be
necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Agent or the Finance Parties by or pursuant to the Finance Documents.
|
|
(c) |
Each Obligor must use, and must procure that any other member of the Group that is a provider of Transaction Security uses, all reasonable endeavours lawfully available to avoid or mitigate the constraints on the provision of Security
provided for in this Agreement.
|
25.21 |
Dividends and share redemption
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its issued shares (or any class of its issued
shares) or share capital (or any class of its share capital) (as applicable);
|
|
(b) |
repay or distribute any dividend or share premium reserve;
|
|
(c) |
repay any Shareholder Loans; or
|
|
(d) |
redeem, repurchase, defease, retire or repay any of its issued shares or share capital (as applicable) or resolve to do so,
|
|
(i) |
the first repayment instalments of the Term Loans have been made in accordance Clause 8 (Repayment) have been made;
|
|
(ii) |
the Back Stop Facility has been repaid in full;
|
|
(iii) |
Free Liquidity will be no less than USD 75,000,000 following such Distribution;
|
|
(iv) |
such Distribution does not exceed 50 per cent. of the Borrower's consolidated net profit in accordance with the Approved Accounting Principles according to the latest relevant financial statement(s); and
|
|
(v) |
no Event of Default has occurred and is continuing or would occur as a result of the making of such Distribution.
|
25.22 |
Bank accounts
|
|
(a) |
hold and maintain the Earnings Accounts with the Agent; and
|
|
(b) |
ensure that all Earnings and insurance proceeds are paid directly to the relevant Earnings Account without deductions.
|
25.23 |
Listing
|
25.24 |
Derivate Transactions
|
|
(a) |
No Obligor shall enter into any secured interest rate or currency hedging transactions related to the Rigs and the Facilities with other parties than the Hedging Banks.
|
|
(b) |
No Obligor shall enter into any speculative hedging transactions.
|
25.25 |
No change of name etc.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
the end of its fiscal year;
|
|
(b) |
its nature of business;
|
|
(c) |
its constitutional documents, except for such changes as are necessary to reflect transactions or corporate actions which are permitted pursuant to the terms of this Agreement;
|
|
(d) |
its legal name
|
|
(e) |
its type of organization; or
|
|
(f) |
its jurisdiction;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
25.26 |
Subordination
|
|
(a) |
Each Rig Owner shall procure that all Intra-Group Loans are fully subordinated to the interest of the Finance Parties hereunder and the Hedging Banks under the Hedging Agreements and assigned pursuant to an Assignment Agreement or
Intra-Group Loan Assignment Agreement.
|
|
(b) |
The Borrower shall procure that all Shareholder Loans are fully subordinated to the interest of the Finance Parties hereunder and the Hedging Banks under the Hedging Agreements.
|
|
(c) |
Each Guarantor (other than a Rig Owner) shall procure that any loans or credit in respect of which it is a debtor are fully subordinated to the interest of the Finance Parties hereunder and the Hedging Banks under the Hedging Agreements.
|
|
(d) |
Each Guarantor shall procure that all amounts payable to and/or claims against it from the Managers and/or any manager are fully subordinated to the interest of the Finance Parties hereunder and the Hedging Banks under the Hedging
Agreements.
|
25.27 |
Compliance with constitutional documents etc.
|
25.28 |
No disposals
|
25.29 |
No Joint Ventures
|
|
(a) |
enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or interest in any Joint Venture; or
|
|
(b) |
transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the
foregoing),
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
25.30 |
Permitted Holdco Restrictions
|
|
(a) |
The Borrower shall not create or permit to subsist any Security or Quasi-Security over its shares or other ownership interests in the Permitted Holdco.
|
|
(b) |
The Borrower shall ensure that the Permitted Holdco remains a directly wholly owned Subsidiary of the Borrower at all times.
|
|
(c) |
The Borrower shall ensure that the Permitted Holdco shall not trade, carry on any business, own any assets, establish or maintain any bank accounts, issue any dividends or other distributions, grant any loan or other credit, create or
permit to subsist any Security or Quasi-Security over any of its assets or incur any liabilities except for:
|
|
(i) |
ownership of shares in its Subsidiaries;
|
|
(ii) |
intra-Group debit balances and intra-Group credit balances documented in writing pursuant to an intra-group funding agreement in form and substance satisfactory to the Agent (in its sole discretion);
|
|
(iii) |
Security over shares in direct subsidiaries of the Permitted Holdco on terms and in favour of creditors equivalent to the existing security over shares granted by the Borrower over its direct Subsidiaries as of the Effective Date;
|
|
(iv) |
a guarantee in favour of PPL Shipyard Pte Ltd in respect of certain deferred amounts as contemplated in the Global Amendment Deed in relation to Seller's Credits granted in relation to the jack up rigs "GALAR", "GERD", "GERSEMI", "GRID",
"GYME", "NATT", "GROA", "NJORD" and "GUNNLOD" dated on or about the date hereof and entered into between, among others, the Borrower as the parent company and PPL Shipyard Pte Ltd as the seller; and
|
|
(v) |
other transactions entered into with the prior written consent of the Agent on behalf of the Majority Lenders (in their sole discretion).
|
|
(d) |
The Borrower shall (and shall ensure that each member of the Group will) ensure that any transfer of funds to the Permitted Holdco is documented pursuant to an intra-group funding agreement in form and substance satisfactory to the Agent
(in its sole discretion) or otherwise documented as an intercompany liability in writing.
|
|
(e) |
The Borrower shall ensure that no member of the Group will make dividends or other distributions to the Permitted Holdco.
|
25.31 |
Most Favoured Nations
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
25.32 |
Invoices
|
26 |
RIG UNDERTAKINGS
|
26.1 |
Insurances
|
|
(a) |
Each Rig Owner shall procure that its Rig is fully insured on an agreed value basis against such risks (including, but not limited to:
|
|
(i) |
Hull and Machinery, Hull Interest, and Freight Interest;
|
|
(ii) |
Loss of Hire (in respect of contracts of employment with a duration of nine (9) months or more);
|
|
(iii) |
Protection & Indemnity (including cover for pollution liability within limits according to the industry practice); and
|
|
(iv) |
War Risk (including terrorism, piracy, hijacking and confiscation)),
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
The aggregate insured value for Hull & Machinery combined with Hull Interest and/or Freight Interest of the Rigs shall at all times be equal to or greater than 120 per cent. of the aggregate outstanding Loans and any undrawn and
uncancelled part of the Facilities. The agreed insured value for Hull & Machinery combined with Hull Interest for each Rig shall at all times be equal to or larger than the Market Value of the relevant Rig. The Hull and Machinery
insured value of each Rig shall at all times be equal to or larger than 80 per cent. of the Market Value of the relevant Rig, while the remaining cover may be taken out by way of Hull Interest only, or by way of Hull Interest and Freight
Interest insurances.
|
|
(c) |
In addition to the insurances specified above, the Agent will take out (i) Mortgagee Interest Insurance and (ii) Mortgagee Interest Additional Perils Pollution Insurance, in each case on regular market terms, each such insurance to be
taken out in an amount covering up to 120 per cent. of the outstanding Loans and any undrawn and uncancelled part of the Facilities, and the Borrower shall reimburse to the Agent any and all sums paid as premium in respect of such insurance
cover.
|
|
(d) |
If any of the insurances referred to in paragraph (a) above form part of a fleet cover, the Borrower shall procure that the insurers or brokers (as applicable) shall undertake to the Agent that they shall neither set-off against any
claims in respect of a Rig any premiums due in respect of other rigs under such fleet cover or any premiums due for other insurances, nor cancel any insurances in relation of a Rig for reason of non-payment of premiums for other rigs under
such fleet cover or of premiums for such other insurances, and shall undertake to issue a separate policy in respect of each Rig if and when so requested by the Agent.
|
|
(e) |
Not later than seven (7) days before the expiry date of the relevant insurances, the Borrower shall deliver to the Agent a confirmation from the insurance companies and/or broker(s) through whom the insurances relevant to the Rigs have
been placed, evidencing that all insurances referred to in paragraph (a) above have been renewed and/or is in the process of being taken out in respect of the Rigs with insurance values as required by paragraph (b) above, that such
insurances will be in full force and effect immediately upon the expiry of the expiring insurances and that the interests of the Finance Parties therein have been noted by the relevant insurers. The Borrowers shall procure that letters of
undertaking, as required by the Agent, and copies of all insurance policies, cover notes and certificates of entry are delivered to the Agent.
|
|
(f) |
Each Rig Owner and if applicable any Intra-Group Charterer shall procure that its Rig is always employed in conformity with the terms of the instruments of insurance (including any expressed or implied warranties) applicable to it and
shall comply with such requirements as to payment of premiums, any extra premium, calls, contributions or any other sums payable in respect of the insurances or otherwise as the insurers may prescribe.
|
|
(g) |
The Agent may, on an annual basis and for the account of the Borrower, appoint an independent and well reputed insurance consultant to consider and determine whether each Rig is fully and properly insured and employed in accordance with
paragraphs (a) – (f) above. If at any time the contrary is so determined, each Rig Owner and if applicable any Intra-Group Charterer shall, following a written request to the Borrower from the Agent (on behalf of the Finance Parties)
immediately ensure that its Rig(s) is fully and properly insured and employed as set out in paragraphs (a) – (f) above and provide the Agent with evidence in a form and substance satisfactory to it thereof.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
26.2 |
Notification
|
|
(a) |
any occurrence as a result of which its Rig has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
|
(b) |
the occurrence of any Environmental or Social Claim, Labour or Human Rights Claim or any Social Claim against an Obligor or any Manager which is likely to be determined adversely to it, or any incident, event or circumstances which is
likely to give rise to any such Environmental or Social Claim, Labour or Human Rights Claim or Social Claim and which, if so adversely determined or otherwise, might reasonably be expected to have a Material Adverse Effect; and
|
|
(c) |
any capture, seizure, arrest, confiscation or detention of, or the exercise or purported exercise of any lien on, the Rigs, its insurances, its Earnings or any other assets of a Rig Owner or, in the case of any Intra-Group Charterer,
assets subject to the Transaction Security,.
|
26.3 |
Compliance with laws etc.
|
|
(a) |
comply with all laws or regulations:
|
|
(i) |
applicable to its business; or
|
|
(ii) |
in the case of a Rig Owner and if applicable any Intra-Group Charterer, applicable to the relevant Rig, its ownership, employment, operation, management and registration,
|
|
(b) |
obtain, comply with and do all that is necessary to maintain in full force and effect any Environmental Permits,
|
26.4 |
Inventory of Hazardous Material
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
26.5 |
Sustainable and socially responsible dismantling of Rigs
|
26.6 |
Arrest
|
|
(a) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against its Rig, its Earnings or its Insurances;
|
|
(b) |
all tolls, taxes, dues, fines, penalties and other amounts charged in respect of its Rig, its Earnings or its Insurances; and
|
|
(c) |
all other outgoings whatsoever in respect of its Rig, its Earnings or its Insurances;
|
26.7 |
Flag, name and registry
|
26.8 |
Class
|
|
(a) |
Each Rig Owner and if applicable any Intra-Group Charterer shall procure that its Rig:
|
|
(i) |
is classified with an Approved Classification Society;
|
|
(ii) |
has a class certification acceptable to the Agent;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(iii) |
is free of any material and overdue recommendations or adverse notations affecting class; and
|
|
(iv) |
complies with the rules and regulations of the relevant classification society.
|
|
(b) |
No Rig Owner or if applicable any Intra-Group Charterer shall change the classification society for its Rig without the prior written consent of the Lenders, other than to another Approved Classification Society.
|
|
(c) |
Each Rig Owners and if applicable any Intra-Group Charterer shall procure that the classification society sends to the Agent, following receipt of a written request from the Agent, copies of all class records held by the classification
society in relation to the Rigs.
|
|
(d) |
Each Rig Owner and if applicable any Intra-Group Charterer shall at all times ensure compliance in all material respects with all applicable international conventions and regulations, including the SOLAS conventions, the International
Management Code for the Safe Operation of Ships and for Pollution Prevention, the International Ship and Port Security Code adopted by the International Maritime Organisation and the Maritime Labour Convention 2006. In particular, the Rig
Owners and if applicable any Intra-Group Charterer shall each ensure that any charterer of its Rig and any company performing management services in respect of a Rig complies with said conventions and regulations.
|
|
(e) |
No Rig Owner or if applicable any Intra-Group Charterer shall not permit its Rig to enter the territorial waters of the US unless a valid Certificate of Financial Responsibility as required by the United States Coast Guard has been
obtained for that Rig in advance.
|
|
(f) |
No Rig Owner or if applicable any Intra-Group Charterer shall, without the prior written consent of the Agent, bring a Rig or allow a Rig to be brought to any yard for repairs or for the purpose of work being done upon her where the
costs of such repairs or work is likely to exceed USD 5,000,000 (or the equivalent thereof in any other currency), unless such person shall first have given to the Agent (in terms reasonably satisfactory to it) a written undertaking not to
exercise any lien on that Rig or its Insurances or Earnings for the cost of such repairs or work or otherwise;
|
26.9 |
Repair and maintenance
|
26.10 |
Inspection
|
|
(a) |
Each Rig Owner and if applicable any Intra-Group Charterer shall permit, and shall procure that any manager or charterer permits, the Agent (acting through surveyors or other persons appointed by it for that purpose) to board each Rig
once a year and with prior notice to the Rig Owner or if applicable any Intra-Group Charterer, and provided that such inspection does not unreasonably interfere with the relevant Rig Owner's or end user's normal operations (unless a Default
has occurred and is continuing, in which case such inspections may be conducted at any time and on any number of occasions) and the Agent and such person signing usual indemnities given by third parties boarding the Rig, to inspect its
condition or to satisfy itself about proposed or executed repairs, and shall afford all proper facilities for such inspections.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
Any such inspection made once a year, or in the event that a Default has occurred and is continuing, shall be made at the cost of the Borrower, and in any other event such costs shall be carried by the Lenders.
|
26.11 |
Management
|
|
(a) |
Each Rig Owner and if applicable any Intra-Group Charterer shall procure that commercial and technical management of is Rig is at all times performed by a Manager or, if required due to local law requirements or by any charterer or end
user of its Rig, another company approved by the Agent.
|
|
(b) |
No change of management shall take place without the prior written consent of the Lenders, unless to another Manager.
|
|
(c) |
If a change in the commercial or technical management of a Rig occurs in accordance with paragraph (a) or (b) above, the relevant Rig Owner and if applicable any Intra-Group Charterer shall procure that such new Manager or other company
issues a manager's subordination undertaking substantially in the same form as provided on or about the date of the Original Agreement.
|
26.12 |
Minimum value
|
|
(a) |
The Borrower shall procure that the aggregate Market Value of the Rigs (plus any additional security previously provided by an Obligor under paragraph (b) below) is at all times at least equal to 175 per cent. of the aggregate
outstanding Loans and any undrawn and uncancelled part of the Facilities.
|
|
(b) |
The Borrower shall, if the Market Value does not at any time comply with the requirements set out in paragraph (a) above, within fourteen (14) days from receipt of a written demand from the Agent (acting on the instructions of the
Majority Lenders) either make a cancellation or, if required, prepayment of the Loans in accordance with Clause 9.7 (Voluntary cancellation), or provide the Finance Parties with cash or other
additional Security, in form and substance satisfactory to the Lenders, required to restore the aforesaid ratio.
|
26.13 |
Chartering
|
26.14 |
Reflagging
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
27 |
EVENTS OF DEFAULT
|
27.1 |
Non-payment
|
|
(a) |
its failure to pay is caused by:
|
|
(i) |
a one-off administrative or technical error; or
|
|
(ii) |
a Disruption Event; and
|
|
(b) |
payment is made within three (3) Business Days of its due date.
|
27.2 |
Financial covenants etc.
|
27.3 |
Other obligations
|
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 27.1 (Non-payment) and Clause 27.2 (Financial
covenants etc.)).
|
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within ten (10) Business Days of the earlier of:
|
|
(i) |
the Agent giving notice to the Borrower; and
|
|
(ii) |
an Obligor becoming aware of the failure to comply.
|
27.4 |
Misrepresentation
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
27.5 |
Cross-default
|
|
(a) |
Any Financial Indebtedness of an Obligor is not paid when due nor within any originally applicable grace period.
|
|
(b) |
Any Financial Indebtedness of an Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
|
(c) |
Any commitment for any Financial Indebtedness of an Obligor is cancelled or suspended by a creditor as a result of an event of default (however described).
|
|
(d) |
Any creditor of an Obligor becomes entitled to declare any Financial Indebtedness due and payable prior to its specified maturity as a result of an event of default (however described).
|
|
(e) |
No Event of Default will occur under this Clause 27.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than USD 10,000,000 (or its equivalent in
any other currencies).
|
27.6 |
Insolvency
|
|
(a) |
An Obligor:
|
|
(i) |
is unable or admits inability to pay its debts as they fall due;
|
|
(ii) |
suspends making payments on any of its debts; or
|
|
(iii) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling its indebtedness.
|
|
(b) |
The value of the assets of an Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
|
|
(c) |
A moratorium is declared in respect of any indebtedness of an Obligor.
|
27.7 |
Insolvency proceedings
|
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
|
(i) |
the suspension of payments, a moratorium of any indebtedness, liquidation, winding- up, strike-off, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of an Obligor;
|
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of an Obligor;
|
|
(iii) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer (including, without limitation, any receiver and/or manager and/or administrative receiver appointed in the
British Virgin Islands) in respect of an Obligor or any of its assets;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(iv) |
enforcement of any Security over any assets of an Obligor, or any analogous procedure or step is taken in any jurisdiction.
|
|
(b) |
Paragraph (a) above shall not apply to any winding-up petition which is being contested in good faith and with due diligence and is discharged, stayed or dismissed within 21 days of commencement.
|
27.8 |
Creditor's process
|
27.9 |
Unlawfulness and invalidity
|
|
(a) |
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or any Transaction Security created or expressed to be created or evidenced by the Security Documents ceases to be effective.
|
|
(b) |
Any obligation or obligations of an Obligor under any Finance Documents are not or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the
Lenders under the Finance Documents.
|
|
(c) |
Any Finance Document ceases to be in full force and effect or any Transaction Security ceases to be legal, valid, binding, enforceable or effective or is alleged by a party to it (other than a Finance Party) to be ineffective.
|
27.10 |
Repudiation and rescission
|
|
(a) |
An Obligor (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Finance Document or
any Transaction Security.
|
|
(b) |
Any Finance Document ceases to exist, is or becomes contested, invalid, non-binding or unenforceable or is otherwise jeopardized in full or in part.
|
27.11 |
Material adverse change
|
27.12 |
Failure of effectiveness of the Security Documents
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
27.13 |
The Rigs
|
|
(a) |
Class certification of a Rig is withdrawn.
|
|
(b) |
There is an instability affecting a country of flag which could reasonably be expected to jeopardise the Transaction Security and each affected Rig is not transferred to another Approved Ship Registry promptly upon a reasonable request
by the Agent.
|
27.14 |
Sanctions
|
|
(a) |
Any Obligor or any of its Subsidiaries becomes a Restricted Party or becomes owned or controlled by, or acts directly or indirectly on behalf of, a Restricted Party or any of such persons becomes the owner or controller of a Restricted
Party;
|
|
(b) |
Any proceeds of a Loan are made available, directly or indirectly, to fund any trade, business or other activities involving or for the benefit of a Restricted Party or in any country or territory, that, at the time of such funding, is a
sanctioned country or otherwise is, directly or indirectly, applied in a manner that would result in a violation of Sanctions by a Finance Party or any Obligor or for any purpose prohibited by Sanctions; or
|
|
(c) |
Any Obligor or any of its Subsidiaries takes any action resulting in a violation by such persons of Sanctions or which constitutes or would constitute any such violation by a Finance Party or any Obligor.
|
27.15 |
Guarantors
|
27.16 |
Cessation of business
|
27.17 |
Expropriation
|
27.18 |
Litigation
|
27.19 |
Acceleration
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
cancel all or any part of the Total Commitments whereupon they shall immediately be cancelled;
|
|
(b) |
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
|
|
(c) |
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Lenders;
|
|
(d) |
declare that cash cover in respect of each Trade Finance Instrument is immediately due and payable whereupon it shall become immediately due and payable;
|
|
(e) |
declare that cash cover in respect of each Trade Finance Instrument is payable on demand at which time it shall immediately become due and payable on demand by the Agent on the instructions of any Lender; and/or
|
|
(f) |
exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
|
27.20 |
Automatic Acceleration
|
28 |
CHANGES TO THE LENDERS
|
28.1 |
Assignments and transfers by the Lenders
|
|
(a) |
assign any of its rights; or
|
|
(b) |
transfer any of its rights and obligations,
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
28.2 |
Borrower consultation
|
|
(a) |
to another Lender or an Affiliate of any Lender;
|
|
(b) |
to a fund which is a Related Fund of that Existing Lender;
|
|
(c) |
without prejudice to paragraph (a) above, to a Lender or an Affiliate of a Lender and made in connection with the first utilisation of the Incremental Amount; or
|
|
(d) |
made at a time when an Event of Default is continuing.
|
28.3 |
Other conditions of assignment or transfer
|
|
(a) |
An assignment or transfer will only be effective if the procedure set out in Clause 28.6 (Procedure for transfer) is complied with.
|
|
(b) |
The consent of the Issuing Bank is required for any assignment or transfer by an Existing Lender of any of its rights and/or obligations under the Trade Finance Facility.
|
|
(c) |
If:
|
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 15 (Tax gross-up and indemnities) or Clause 16 (Increased Costs),
|
|
(d) |
Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite
Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have
been had it remained a Lender.
|
28.4 |
Assignment or transfer fee
|
28.5 |
Limitation of responsibility of Existing Lenders
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
|
(ii) |
the financial condition of any Obligor;
|
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not
relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
|
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
|
(i) |
accept a re-transfer from a New Lender of any of the rights and obligations transferred under this Clause 28;
|
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
28.6 |
Procedure for transfer
|
|
(a) |
Subject to the conditions set out in Clause 28.3 (Other conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise
duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
|
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all
applicable laws and regulations in relation to the transfer to such New Lender.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
On the Transfer Date:
|
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards
one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the "Discharged Rights and Obligations");
|
|
(ii) |
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have
assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
|
(iii) |
the Agent, the New Lender, the Issuing Bank and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the
rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Issuing Bank and the Existing Lender shall each be released from further obligations to each other under the Finance
Documents; and
|
|
(iv) |
the New Lender shall become a Party as a "Lender".
|
28.7 |
Copy of Transfer Certificate to the Borrower
|
28.8 |
Security over Lenders' rights
|
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those
obligations or securities,
|
|
(c) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or security for the Lender as a party to any of the Finance Documents; or
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(d) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
29 |
CHANGES TO THE OBLIGORS
|
29.1 |
Assignments and transfer by Obligors
|
29.2 |
Additional Guarantors, Intermediate Holding Companies, Rig Owners and/or Intra-Group Charterers
|
|
(a) |
Subject to completion of any "know your customer" checks required by the Finance Parties, the Borrower may (A) in connection with the replacement of a Rig or a Replacement Rig pursuant to Clause
29.5 (Replacement Rigs), (B) in connection with the chartering of a Rig to a Subsidiary that is not an Intra-Group Charterer pursuant to Clause 26.13 (Chartering)
or (C) in connection with the establishment of any Incremental Amount pursuant to Clause 10.5 (Conditions to Establishment) request that any of its wholly owned Subsidiaries/that Subsidiary become an
Additional Guarantor and an Additional Rig Owner, an Additional Intermediate Holding Company or an Additional Intra-Group Charterer (as the case may be). That Subsidiary shall become an Additional Guarantor and an Additional Rig Owner, an
Additional Intermediate Holding Company or an Additional Intra-Group Charterer (as the case may be) if:
|
|
(i) |
the Borrower delivers to the Agent a duly completed and executed Accession Letter; and
|
|
(ii) |
the Agent has received all of the documents and other evidence listed in paragraph 1 of Schedule 2 (Conditions Precedent) in relation to that Additional Guarantor and Additional Rig Owner,
Additional Intermediate Holding Company or an Additional Intra-Group Charterer (as the case may be), each in form and substance satisfactory to the Agent.
|
|
(b) |
The Agent shall notify the Borrower and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in paragraph 1 of Schedule 2 (Conditions Precedent).
|
29.3 |
Repetition of Representations
|
29.4 |
Resignation of a Guarantor, a Rig Owner, an Intermediate Holding Company or an Intra-Group Charterer
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
The Borrower may in connection with (A) the replacement of a Rig or a Replacement Rig pursuant to Clause 29.5 (Replacement Rigs) or (B) the expiry of a charter to which an Intra- Group Charterer
is a part, request that a Guarantor, a Rig Owner, an Intermediate Holding Company and/or an Intra-Group Charterer or that Intra-Group Charterer ceases to be a Guarantor, a Rig Owner, an Intermediate Holding Company or an Intra-Group
Charterer by delivering to the Agent a Resignation Letter.
|
|
(b) |
The Agent shall accept a Resignation Letter and notify the Borrower and the Lenders of its acceptance if:
|
|
(i) |
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Borrower has confirmed this is the case);
|
|
(ii) |
all the Lenders have consented to the Borrower's request; and
|
|
(iii) |
the Guarantor, the Rig Owner, the Intermediate Holding Company or the Intra- Group Charterer is replaced by an Additional Guarantor, and Additional Intermediate Holding Company, an Additional Rig Owner or an Additional Intra- Group
Charterer (as the case may be) pursuant to Clause 29.2 (Additional Guarantors, Intermediate Holding Companies, Rig Owners and/or Intra-Group Charterers) and Clause 29.5 (Replacement Rigs).
|
29.5 |
Replacement Rigs
|
|
(a) |
A Rig may be exchanged with one or more Replacement Rigs.
|
|
(b) |
A replacement of a Rig by a Replacement Rig will only be effective once:
|
|
(i) |
the entity which owns the Replacement Rig has acceded to this Agreement as an Additional Rig Owner and Additional Guarantor pursuant to Clause 29.2 (Additional Guarantors, Intermediate Holding Companies,
Rig Owners and/or Intra-Group Charterers);
|
|
(ii) |
any Group entity which charters the Replacement Rig has acceded to this Agreement as an Additional Intra-Group Charterer and Additional Guarantor pursuant to Clause 29.2 (Additional Guarantors,
Intermediate Holding Companies, Rig Owners and/or Intra-Group Charterers);
|
|
(iii) |
any intermediary holding company which owns shares in the relevant Additional Rig Owner has acceded to this Agreement as an Additional Intermediate Holding Company and an Additional Guarantor pursuant to Clause 29.2 (Additional Guarantors, Intermediate Holding Companies, Rig Owners and/or Intra-Group Charterers);
|
|
(iv) |
the relevant Additional Guarantor, Additional Intermediate Holding Company and Additional Rig Owner or Additional Intra-Group Charterers have entered into all relevant Security Documents in form and substance satisfactory to the Agent;
and
|
|
(v) |
the Borrower or (if relevant) any intermediary holding company which owns shares in the relevant Additional Rig Owner has granted a Share Pledge over the shares in the relevant Additional Rig Owner, in form and substance satisfactory to
the Agent.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
A Rig may only be replaced by a Replacement Rig on the occurrence of a Total Loss or sale of such Collateral Rig or its removal following designation by the Borrower for other purposes (in the Borrower's sole discretion).
|
30 |
THE ROLE OF THE AGENT, THE ARRANGERS, THE COORDINATORS, THE ISSUING BANK AND THE REFERENCE BANKS
|
30.1 |
Appointment of the Agent
|
|
(a) |
Each other Finance Party and Hedging Bank appoints the Agent to act as its agent under and in connection with the Finance Documents and the Hedging Agreements.
|
|
(b) |
Each other Finance Party and each Hedging Bank authorises the Agent:
|
|
(i) |
to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions;
|
|
(ii) |
to execute each of the Security Documents and all other documents that may be approved by the Majority Lenders for execution by it; and
|
|
(iii) |
to act as its security agent and (to the extent permitted under any applicable law) trustee under and in connection with the Security Documents.
|
30.2 |
Instructions
|
|
(a) |
The Agent shall:
|
|
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
|
(B) |
in all other cases, the Lenders; and
|
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.
|
|
(b) |
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that
Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such instructions or
clarification that it has requested.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by
the Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
|
(d) |
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than
that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
|
(e) |
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
|
(f) |
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (f) shall not apply to any legal or
arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents.
|
30.3 |
Duties of the Agent
|
|
(a) |
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
|
(b) |
Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
|
(c) |
Without prejudice to Clause 28.7 (Copy of Transfer Certificate to the Borrower), paragraph
|
|
(d) |
above shall not apply to any Transfer Certificate.
|
|
(e) |
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
|
(f) |
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
|
(g) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
|
(h) |
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
30.4 |
Role of the Arrangers
|
30.5 |
No fiduciary duties
|
|
(a) |
Nothing in any Finance Document constitutes the Agent, any Arranger, or the Issuing Bank as fiduciary of any other person.
|
|
(b) |
Neither the Agent, any Arranger nor the Issuing Bank shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
30.6 |
Business with the Group
|
30.7 |
Rights and discretions
|
|
(a) |
The Agent and the Issuing Bank may:
|
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
|
(ii) |
assume that:
|
|
(A) |
any instructions received by it from the Lenders, any Lender or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
|
(iii) |
rely on a certificate from any person:
|
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
|
(b) |
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 27.1 (Non-payment));
|
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
|
(iii) |
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
|
(c) |
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers
instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.
|
|
(e) |
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages,
costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
|
(f) |
The Agent may act in relation to the Finance Documents through its officers, employees and agents.
|
|
(g) |
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
|
(h) |
Notwithstanding any other provision of any Finance Document to the contrary, the Agent is not obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of
a fiduciary duty or duty of confidentiality.
|
|
(i) |
Notwithstanding any provision of any Finance Document to the contrary, neither the Agent or the Issuing Bank is obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties,
obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not
reasonably assured to it.
|
30.8 |
Responsibility for documentation
|
|
(a) |
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance
Documents;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document; or
|
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or
otherwise.
|
30.9 |
No duty to monitor
|
|
(a) |
whether or not any Default has occurred;
|
|
(b) |
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
30.10 |
Exclusion of liability
|
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent or the Issuing Bank), neither the Agent nor the Issuing Bank will be liable for:
|
|
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
|
|
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under
or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or
|
|
(iii) |
without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (but not including any claim based on the fraud of the Agent) arising
as a result of:
|
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
No Party (other than the Agent or the Issuing Bank (as applicable)) may take any proceedings against any officer, employee or agent of the Agent or the Issuing Bank in respect of any claim it might have against the Agent or in respect of
any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent or the Issuing Bank may rely on this Clause.
|
|
(c) |
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
|
(d) |
Nothing in this Agreement shall oblige the Agent to carry out:
|
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender, on behalf of any Lender and each Lender confirms to the Agent that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in relation to such checks made by the Agent.
|
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss
which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to
the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or
consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
30.11 |
Lenders' indemnity to the Agent
|
30.12 |
Resignation of the Agent
|
|
(a) |
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the Lenders and the Borrower.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
Alternatively the Agent may resign by giving thirty (30) days notice to the Lenders and the Borrower, in which case the Lenders (after consultation with the Borrower) may appoint a successor Agent.
|
|
(c) |
If the Lenders have not appointed a successor Agent in accordance with paragraph (b) above within twenty (20) days after notice of resignation was given, the retiring Agent (after consultation with the Borrower) may appoint a successor
Agent.
|
|
(d) |
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if it
concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this Clause 30 and any other
term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee
payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.
|
|
(e) |
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent
under the Finance Documents. The Borrower shall, within three (3) Business Days of demand, reimburse the retiring Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such
documents and records and providing such assistance.
|
|
(f) |
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
|
(g) |
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit
of Clause 17.3 (Indemnity to the Agent) and this Clause 30 and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date. Any successor and
each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
|
(h) |
After consultation with the Borrower, the Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
|
|
(i) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three (3) months
before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
|
(i) |
the Agent fails to respond to a request under Clause 15.7 (FATCA information) and a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or
after that FATCA Application Date;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
the information supplied by the Agent pursuant to Clause 15.7 (FATCA information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA
Application Date; or
|
|
(iii) |
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,
|
30.13 |
Confidentiality
|
|
(a) |
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
|
(b) |
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
|
(c) |
Notwithstanding any other provision of any Finance Document to the contrary, the Agent is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a fiduciary duty.
|
30.14 |
Relationship with the Lenders
|
|
(a) |
The Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility
Office:
|
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
|
(b) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the
address and (where communication by electronic mail or other electronic means electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or
officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, electronic mail address (or such other information), department and officer by that Lender for the purposes of
Clause 36.2 (Addresses) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were
that Lender.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
30.15 |
Credit appraisal by the Lenders and the Issuing Bank
|
|
(a) |
the financial condition, status and nature of each Obligor;
|
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance
Document;
|
|
(c) |
whether that Lender or Issuing Bank has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
|
(d) |
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
|
(e) |
the right or title of any person in or to, or the value or sufficiency of any part of the assets subject to the Transaction Security, the priority of any of the Transaction Security or the existence of any security affecting the assets
subject to the Transaction Security.
|
30.16 |
Agent's management time
|
30.17 |
Deduction from amounts payable by the Agent
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
30.18 |
Reference Banks
|
|
(a) |
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with the Borrower) appoint another Lender or an Affiliate of a Lender to
replace that Reference Bank.
|
|
(b) |
No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.
|
|
(c) |
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
|
|
(d) |
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or
omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 30.18.
|
30.19 |
Custodians and nominees
|
31 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES AND HEDGING BANKS
|
|
(a) |
interfere with the right of any Finance Party or any Hedging Bank to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
|
(b) |
oblige any Finance Party or any Hedging Bank to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
|
(c) |
oblige any Finance Party or any Hedging Bank to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
32 |
SHARING AMONG THE FINANCE PARTIES
|
32.1 |
Payments to the Finance Parties
|
|
(a) |
the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery, to the Agent;
|
|
(b) |
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with
Clause 33 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
|
(c) |
the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Agent determines may be retained by
the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 33.5 (Partial payments).
|
32.2 |
Redistribution of payments
|
32.3 |
Recovering Finance Party's rights
|
32.4 |
Reversal of redistribution
|
|
(a) |
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount");
and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
32.5 |
Exceptions
|
|
(a) |
This Clause 32 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
|
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
|
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and
|
|
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
32.6 |
Distribution of enforcement proceeds
|
|
(a) |
firstly, in or towards payment of costs and expenses incurred by the Agent and the other Finance Parties in connection with such realisation and enforcement;
|
|
(b) |
secondly, in the order of priority set out at Clause 33.5 (Partial Payments).
|
33 |
PAYMENT MECHANICS
|
33.1 |
Payments to the Agent
|
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
|
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Agent specifies.
|
33.2 |
Distributions by the Agent
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
33.3 |
Distributions to an Obligor
|
33.4 |
Clawback
|
|
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to
establish to its satisfaction that it has actually received that sum.
|
|
(b) |
If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent
shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
33.5 |
Partial payments
|
|
(a) |
If the Agent receives a payment for application against amounts due in respect of any Finance Document or Hedging Agreement that is insufficient to discharge all the amounts then due and payable by an Obligor under that Finance Document
or Hedging Agreement, the Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents and the Hedging Agreements in the following order:
|
|
(i) |
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent or the Issuing Bank (other than any amount under Clause 7.2 (Claims under a Trade Finance Instrument) or,
to the extent relating to the reimbursement of a claim (as defined in Clause 7 (Trade Finance Instruments), Clause 7.3 (Indemnities)) under those Finance
Documents;
|
|
(ii) |
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
|
(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement and any amount due but unpaid under Clauses 7.2 (Claims under a Trade Finance Instrument) and 7.3 (Indemnities);
|
|
(iv) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents (except any Hedging Agreement); and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(v) |
fifthly, in or towards payment of any sum due but unpaid under the Hedging Agreements, pro rata in accordance with the amount of outstanding liabilities under the respective Hedging Agreements (after application of any netting
arrangements in respect thereof).
|
|
(b) |
The Agent shall, if so directed by the Lenders and the Hedging Banks, vary the order set out in paragraphs (a)(ii) to (iv) above.
|
|
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
33.6 |
No set-off by Obligors
|
33.7 |
Business Days
|
|
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
|
(b) |
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
33.8 |
Currency of account
|
|
(a) |
Subject to paragraphs (b) and (c) below, USD is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
|
(c) |
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
33.9 |
Change of currency
|
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the
Agent (after consultation with the Borrower); and
|
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent
(acting reasonably).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the relevant interbank market and otherwise to reflect the change in currency.
|
34 |
SET-OFF
|
35 |
SUBORDINATION OF INTRA-OBLIGOR LIABILITIES
|
35.1 |
Definitions
|
35.2 |
Subordination of Intra-Obligor Liabilities
|
|
(a) |
if an Event of Default has occurred and is continuing, it will not make any claim for, or accept, payment of any kind from any Obligor under or in relation to Intra-Obligor Liabilities, including but not limited to any principal amount,
interest, fee or charge outstanding or due thereunder;
|
|
(b) |
it will not take any Security from any Obligor in relation to any Intra-Obligor Liabilities;
|
|
(c) |
it will not assign, transfer or otherwise dispose of any of its rights or obligations under any Intra-Obligor Liabilities;
|
|
(d) |
it will not take any action to petition for bankruptcy or other insolvency proceedings of any Obligor, or enforce any claim under any Intra-Obligor Liabilities;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(e) |
if so required by any Finance Party it will enter into an assignment agreement in favour of the Agent (on behalf of the Finance Parties) pursuant to which any such Intra-Obligor Liabilities to which it is a creditor is assigned as
security for the obligations of the Borrower under the Finance Documents; and
|
|
(f) |
any monies received by it in conflict with this Clause 35.2 (Subordination of Intra- Obligor Liabilities), shall forthwith be paid to the Agent (on behalf of the Finance Parties) until all sums
due and to become due to the Finance Parties under the Finance Documents have been fully paid and discharged.
|
35.3 |
Agent's right to discharge Intra-Obligor Liabilities
|
36 |
NOTICES
|
36.1 |
Communications in writing
|
36.2 |
Addresses
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
36.3 |
Delivery
|
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
|
(i) |
if by way of e-mail, when received in legible form; or
|
|
(ii) |
if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
|
(b) |
All notices from or to the Borrower shall be sent through the Agent.
|
|
(c) |
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
|
(d) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (c) above, after 4:00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
36.4 |
Notification of postal address and e-mail address
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
36.5 |
Electronic communication
|
|
(a) |
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means, to the extent that those two Parties agree that, unless and until notified
to the contrary, this is to be an accepted form of communication and if those two Parties:
|
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five (5) Business Days' notice.
|
|
(b) |
Any electronic communication specified in (a) above to be made between any two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Agent only if it
is addressed in such a manner as the Agent shall specify for this purpose.
|
|
(c) |
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 4.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
36.6 |
English language
|
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
|
(i) |
in English; or
|
|
(ii) |
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
37 |
CALCULATIONS AND CERTIFICATES
|
37.1 |
Accounts
|
37.2 |
Certificates and determinations
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
37.3 |
Day count convention
|
38 |
PARTIAL INVALIDITY
|
39 |
REMEDIES AND WAIVERS
|
40 |
AMENDMENTS AND WAIVERS
|
40.1 |
Required consents
|
|
(a) |
Subject to Clause 40.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will
be binding on all Parties.
|
|
(b) |
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 40.
|
40.2 |
Exceptions
|
|
(a) |
An amendment or waiver of any terms of any Finance Document that has the effect of changing or which relates to:
|
|
(i) |
the definitions of "Approved Ship Registry", "Majority Lenders", "Relevant Person", "Restricted Party", "Sanctions", "Sanctions Authority", and "Sanctions List" in Clause 1.1 (Definitions);
|
|
(ii) |
an extension to the date of payment of any amount under the Finance Documents;
|
|
(iii) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
|
(iv) |
an increase in or an extension of any Commitment;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(v) |
a change to the Borrower or the Guarantors (other than in accordance with Clause 29 (Changes to the Obligors));
|
|
(vi) |
any provision which expressly requires the consent of all the Lenders;
|
|
(vii) |
Clauses 2.3 (Finance Parties' rights and obligations), Clause 25.6 (Compliance with laws and Sanctions), Clause 28 (Changes
to the Lenders), Clause 29 (Changes to the Obligors), this Clause 40, Clause 45 (Governing law) or Clause 47.1 (Jurisdiction);
|
|
(viii) |
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:
|
|
(A) |
the guarantee and indemnity granted under Clause 21 (Guarantee and Indemnity);
|
|
(B) |
the assets which are subject to Transaction Security; or
|
|
(C) |
the manner in which the proceeds of enforcement of the Transaction Security are distributed
|
|
(ix) |
the release of any guarantee and indemnity granted or of any Transaction Security unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is the subject of the Transaction
Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document; or
|
|
(x) |
prior to the completion of the Equity Raise, Clause 24 (Financial Covenants), may not be effected without the consent of all the Lenders and all the Hedging Banks.
|
|
(b) |
An amendment or waiver which relates to the rights or obligations of the Agent, an Arranger, a Reference Bank, the Issuing Bank or a Hedging Bank (each in their capacity as such) may not be effected without the consent of the Agent, that
Arranger, that Reference Bank, the Issuing Bank or that Hedging Bank, as the case may be.
|
40.3 |
Replacement of Screen Rate
|
|
(a) |
providing for the use of a Replacement Benchmark in relation to that currency in place of that Screen Rate; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(i) |
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
(ii) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of
this Agreement);
|
|
(iii) |
implementing market conventions applicable to that Replacement Benchmark;
|
|
(iv) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
|
|
(v) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method
for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
40.4 |
Excluded Commitments
|
|
(a) |
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total
Commitments has been obtained to approve that request; and
|
|
(b) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
41 |
DISCLOSURE OF INFORMATION AND CONFIDENTIALITY
|
|
(a) |
Each of the Finance Parties may disclose to each other or to their professional advisers any kind of information which the Finance Parties have acquired under or in connection with any Finance Document. Each Finance Party agrees to keep
all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by this Clause 41, and to ensure that all Confidential Information is protected with security measures and a degree of care that would
apply to its own confidential information. This confidentiality obligation shall not apply to any information which:
|
|
(i) |
is publicised by a Finance Party as required by applicable laws and regulations;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
has entered the public domain or is publicly known, provided that such information is not made publicly known by the receiving Finance Party of such information; or
|
|
(iii) |
was or becomes, as the Finance Party is able to demonstrate by supporting documents, available to such Finance Party on a non-confidential basis prior to the disclosure thereof.
|
|
(b) |
Notwithstanding anything in paragraph (a) above to the contrary, the Lenders may publicise key information about the transaction, inter alia information relating to:
|
|
(i) |
the Obligors' names and countries of residence;
|
|
(ii) |
the date of the Original Agreement;
|
|
(iii) |
the loan and guarantee amounts available hereunder; and
|
|
(iv) |
the type of Rig financed hereunder,
|
|
(c) |
Furthermore, any Finance Party may disclose:
|
|
(i) |
to any of its Affiliates and related funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives such Confidential Information as that Finance Party shall consider
appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive
information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in
relation to the Confidential Information;
|
|
(ii) |
to any person:
|
|
(A) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in
each case, to any of that person's Affiliates, related funds, representatives and professional advisers;
|
|
(B) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one
or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, related funds, representatives and professional advisers;
|
|
(C) |
appointed by any Finance Party or by a person to whom paragraph (ii)(A) or (B) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without
limitation, any person appointed under paragraph (b) of Clause 30.14 (Relationship with the Lenders));
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(D) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (ii)(A) or (ii)(B) above;
|
|
(E) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or
pursuant to any applicable law or regulation;
|
|
(F) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
|
(G) |
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 28.8 (Security over Lenders' rights);
|
|
(H) |
who is a Party; or
|
|
(I) |
with the consent of the Borrower;
|
|
(A) |
in relation to paragraphs (ii)(A), (ii)(B) and (ii)(C) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality
Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
|
(B) |
in relation to paragraph (ii)(D) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the
Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
|
(C) |
in relation to paragraphs (ii)(E), (ii)(F) and (ii)(G) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be
price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; and
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(iii) |
to any person appointed by that Finance Party or by a person to whom paragraph (ii)(A) or (ii)(B) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without
limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in
this paragraph (iii) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With
Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Finance Party; and
|
|
(iv) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents
and/or the Obligors.
|
42 |
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS
|
42.1 |
Disclosure of Confidential Information
|
|
(a) |
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.
|
|
(b) |
The Agent may disclose:
|
|
(i) |
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to Clause 11.4 (Notification of rates of interest); and
|
|
(ii) |
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those
services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service
Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
|
(c) |
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:
|
|
(i) |
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to
this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to
maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ii) |
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange
or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that
there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
|
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate
or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the
relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
|
|
(iv) |
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
|
(d) |
The Agent's obligations in this Clause 42.1 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 11.4 (Notification of rates of interest)
provided that (other than pursuant to paragraph (b)0 above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.
|
42.2 |
Disclosure to numbering service providers
|
|
(a) |
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more
Obligors the following information:
|
|
(i) |
names of Obligors;
|
|
(ii) |
country of domicile of Obligors;
|
|
(iii) |
place of incorporation of Obligors;
|
|
(iv) |
date of the Original Agreement;
|
|
(v) |
Clause 45 (Governing law);
|
|
(vi) |
the names of the Agent and the Arrangers;
|
|
(vii) |
date of each amendment and restatement of this Agreement;
|
|
(viii) |
amounts of, and names of, the Facilities (and any tranches);
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(ix) |
amount of Total Commitments;
|
|
(x) |
currency of the Facilities;
|
|
(xi) |
type of Facilities;
|
|
(xii) |
ranking of Facilities;
|
|
(xiii) |
Termination Date for the Facilities;
|
|
(xiv) |
changes to any of the information previously supplied pursuant to paragraphs (i) to above; and
|
|
(xv) |
such other information agreed between such Finance Party and the Borrower,
|
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be
disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
|
(c) |
Each Obligor represents that none of the information set out in paragraphs (i) to (xv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
|
(d) |
The Agent shall notify the Borrower and the other Finance Parties of:
|
|
(i) |
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and
|
|
(ii) |
the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider.
|
43 |
ARTICLE 55 OF DIRECTIVE 2014/59/EU – BAIL-IN ACTION
|
43.1 |
Definitions
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
|
(a) |
any obligation of a bank or investment firm or Affiliate of a bank or investment firm can be reduced, cancelled, modified or converted into shares, other securities or other obligations of such entity or any other person (or suspended
for a temporary period); and
|
|
(b) |
any right in a contract governing an obligation of a bank or investment firm or Affiliate of a bank or investment firm may be deemed to have been exercised.
|
43.2 |
Contractual recognition of bail-in
|
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it: and
|
|
(iii) |
a cancellation of any such liability; and
|
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
44 |
COUNTERPARTS
|
45 |
GOVERNING LAW
|
46 |
CONFLICT
|
47 |
ENFORCEMENT
|
47.1 |
Jurisdiction
|
|
(a) |
The courts of Norway, with the Oslo district court as the court of first instance, have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence,
validity or termination of this Agreement (a "Dispute").
|
|
(b) |
This Clause 47.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the
Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
47.2 |
Service of process
|
|
(a) |
irrevocably appoints Borr Drilling Management AS as its agent for service of process in relation to any proceedings before the Norwegian courts in connection with any Finance Document; and
|
|
(b) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
Original Lender:
|
Facility A
Commitment:
|
Revolving Facility Commitment:
|
Trade Finance
Facility Commit-
ment:
|
||
|
|
Available
|
Discretionary
|
Incremental
|
|
DNB Bank ASA
|
[***]
|
[***] | |||
Danske Bank, Norwegian Branch
|
[***] | [***] | |||
Citibank N.A., Jersey Branch | |||||
[***] 0
|
[***] | ||||
Goldman Sachs Bank USA
|
[***] | [***] | |||
|
|||||
Clifford Capital Pte. Ltd.
|
[***] | [***] | |||
Total | |||||
[***] | |||||
Commitment:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
To:
|
DNB BANK ASA as Agent
|
Attn: | |
Date:
|
[ ]
|
1 |
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2 |
We wish to borrow a Loan on the following terms:
|
Proposed Utilisation Date:
|
[ ] (or, if that is not a Business Day, the next Business Day)
|
Facility to be utilised:
|
[Facility A]/[Revolving Facility – [Available Tranche] / [Discretionary Tranche] / [Incremental Tranche]]/[Trade Finance Facility]
|
Amount:
|
USD [ ]
|
Interest Period:
|
[ ]
|
3 |
We confirm that on the date of this Utilisation Request each condition specified in Clause 4.2 (Further conditions precedent) is satisfied:
|
|
(i) |
no Default is continuing or would result from the proposed Loan; and
|
|
(ii) |
the Repeating Representations are true in all material respects.
|
4 |
[This Loan is to be made in [whole]/[part] for the purpose of refinancing [identify maturing Loan]./[The proceeds of this Loan should be credited to [account]].
|
5 |
This Utilisation Request is irrevocable.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
To:
|
DNB BANK ASA as Agent
|
Attn: | |
Date:
|
[ ]
|
1 |
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2 |
We refer to the [Facility A Loan] with an Interest Period ending on [ ].
|
3 |
We request that the next Interest Period for the [Facility A Loan] shall be is [ ] months.
|
4 |
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
5 |
This Selection Notice is irrevocable.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
To:
|
DNB BANK ASA as Agent
|
From:
|
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender") |
Dated:
|
[ ] |
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2 |
We refer to Clause 28.6 (Procedure for transfer):
|
|
(i) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 28.6 (Procedure for transfer) together with a proportional interest in the Security Documents.
|
|
(ii) |
The proposed Transfer Date is [ ].
|
|
(iii) |
The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 36.2 (Addresses) are set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.5 (Limitation of responsibility of Existing Lenders).
|
4 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5 |
This Transfer Certificate is governed by Norwegian law.
|
6 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
Name:
|
Name:
|
Title:
|
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
To:
|
DNB BANK ASA as Agent
|
Attn: | |
Date:
|
[ ] |
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
BOOK EQUITY RATIO - Clause 24.3
|
|
|
|
A: Total Book Assets | USD | ||
B: Total Book Liabilities C: Book Equity
|
USD | ||
D: Book Equity Ratio
|
USD | ||
==> | |||
Requirement: D at all times until and including 31 December 2021 to be minimum 25 per cent. and at all times on or after 1 January 2022 to be 40 per cent.
|
Compliance: Yes / No
|
||
WORKING CAPITAL – Clause 24.4
|
|||
USD
|
|||
A: Working Capital
|
USD
|
||
B: Current Assets
|
USD
|
||
C: Current Liabilities
|
|||
Requirement A = B - C > 0
|
==>
|
Compliance: Yes / No
|
|
MINIMUM LIQUIDITY – Clause 24.5
|
|||
A: Cash
|
USD
|
||
B: Free Liquidity
|
USD
|
||
C: Net Interest Bearing Debt
|
USD
|
||
D: Ring-Fenced Liquidity
|
USD
|
||
E: 3 per cent. of C plus D
|
USD
|
||
Requirement:
At all times from and including:
- the Effective Date to and including 31 December 2020 A to be not less than USD 5,000,000
- 1 January 2021 to and including 30 June 2021 A to be not less than USD 10,000,000
- 1 July 2021 to and including 30 September 2021 A to be not less than USD 15,000,000
- 1 October 2021 to and including 31 December 2021 A to be not less than USD 20,000,000
- 1 January 2022 and thereafter B to be no less than the higher of
USD 30,000,000 and E
|
==>
|
Compliance: Yes/No
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
DEBT SERVICE COVER RATIO – Clause 24.6
|
|||
A: EBITDA
|
USD
|
||
B:interest expenses
|
USD
|
||
C: scheduled debt amortisation
|
USD
|
||
Requirement: A / (B + C) = at all times on or after 31 December 2021 exceed 1.25x
|
==>
|
Compliance: Yes/No
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
MINIMUM VALUE – Clause 26.12
Ref. enclosed valuations reports of the Rigs
A: Average Market Value of the Rigs
B: Aggregate amount of Loans and any undrawn and uncancelled part of the Facility
Requirement:
A to B at least 175 per cent.
|
USD USD
==>
|
Compliance: Yes/No
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
Rig
|
Flag at the
date of the
Original
Agreement
|
Rig Owner
|
Intermediate
Holding Company
|
Intra-Group
Charterer
|
"Frigg"
|
Liberia
|
Borr Jack-Up I Inc.
|
n/a
|
n/a
|
"Idun"
|
Vanuatu
|
Borr Idun Ltd.
|
n/a
|
n/a
|
"Norve"
|
Vanuatu
|
Borr Jack-Up XIV Inc.
|
n/a
|
n/a
|
"Prospector 1"
|
Vanuatu
|
Prospector Rig 1 Contracting Company Limited
|
Borr Holdings Limited
|
n/a
|
"Prospector 5"
|
Vanuatu
|
Prospector Rig 5 Contracting Company Limited
|
Borr Holdings Limited
|
n/a
|
"Mist"
|
Vanuatu
|
Borr Mist Limited
|
n/a
|
n/a
|
"Ran"
|
Liberia
|
Borr Ran Inc.
|
n/a
|
n/a
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
To:
|
DNB Bank ASA as Agent
|
From:
|
Borr Drilling Limited as Borrower and the entities listed in the Schedule as Incremental Lenders (the "Incremental Lenders")
|
Dated:
|
[ ]
|
1 |
We refer to the Agreement. This is the Incremental Notice. This Incremental Notice shall take effect as the Incremental Notice for the purposes of the Agreement. Terms defined in the Agreement have the same meaning in this Incremental
Notice unless given a different meaning in this Incremental Notice.
|
2 |
We refer to Clause 10 (Establishment of the Incremental Amount) of the Agreement.
|
3 |
We request the increase of Facility A and the of the Revolving Facility with the following Incremental Amount:
|
|
(a) |
Total Incremental Commitments: USD []
|
|
(b) |
Incremental Amount Conditions Precedent:
|
|
(a) |
Rig: Odin
|
|
(b) |
Rig Owning Company: [ ]
|
|
(c) |
Intermediate Holding Company: [ ] / [n/a]
|
|
(d) |
Intra-Group Charterer: [ ] / [n/a]
|
4 |
The proposed Establishment Date is [ ].
|
5 |
The Borrower confirms that:
|
|
(a) |
the Incremental Lenders and the Incremental Commitments set out in this Incremental Notice have been selected and allocated in accordance with Clause 10.1 (Selection of Incremental Lenders)] of
the Agreement; and
|
|
(b) |
each condition specified in paragraph (a)(i) of Clause 10.5 (Conditions to establishment) of the Agreement is satisfied on the date of this Incremental Notice.
|
6 |
Each Incremental Lender agrees to assume and will assume all of the obligations corresponding to the Incremental Commitments set opposite its name in the Schedule as if it had been an Original Lender under the Agreement in respect of
those Incremental Commitments.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
7 |
On the Establishment Date each Incremental Lender becomes party to the relevant Finance Documents as a Lender.
|
8 |
Each Incremental Lender expressly acknowledges the limitations on the Lenders' obligations referred to in Clause 10.11 (Limitation of responsibility) of the Agreement.
|
9 |
Each Incremental Lender confirms that it is not an Affiliate of a member of the Group.
|
10 |
The Facility Office and address and attention details for notices of the Incremental Lender for the purposes of Clause 36.2 (Addresses) of the Agreement are:
|
11 |
This Incremental Notice is irrevocable.
|
12 |
This Incremental Notice may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Incremental Notice.
|
13 |
This Incremental Notice is governed by Norwegian law.
|
14 |
The courts of Norway have exclusive jurisdiction to settle any dispute arising out of or in connection with this Incremental Notice and the parties therefore irrevocably submit to the exclusive jurisdiction of the Oslo district court (Oslo tingrett).
|
15 |
This Incremental Notice has been entered into on the date stated at the beginning of this Incremental Notice.
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By: |
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By: |
|
By: |
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
By:
Name:
Title:
|
By:
Name:
Title:
|
By:
Name:
Title:
|
By:
Name:
Title:
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BECAUSE SUCH PORTIONS ARE BOTH NOT MATERIAL AND CONTAINS PERSONAL
INFORMATION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS (“[***]”).
|
By:
Name:
Title:
|
Clause
|
|
Page
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1
|
2.
|
DEFERRAL OF INTEREST
|
5
|
3.
|
CROSS-COLLATERALISATION AND CROSS-DEFAULT
|
8
|
4.
|
GENERAL PROVISIONS IN RESPECT OF AMENDMENTS
|
9
|
5.
|
REPRESENTATIONS AND WARRANTIES
|
9
|
6.
|
CONFIRMATIONS AND RELEASE BY BORR DRILLING AND THE OWNERS
|
11
|
7.
|
UNDERTAKINGS OF BORR DRILLING AND THE OWNERS
|
11
|
8.
|
CROSS-GUARANTEES OF OWNERS
|
16
|
9.
|
COSTS AND EXPENSES
|
18
|
10.
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MISCELLANEOUS
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19
|
11.
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NOTICES
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20
|
12.
|
CONFIDENTIALITY
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21
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13.
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GOVERNING LAW AND ARBITRATION
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21
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SCHEDULE 1 The Owners
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23
|
|
SCHEDULE 2 The Rigs
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24
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SCHEDULE 3 The SPAs
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25
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SCHEDULE 4 The Seller's Credits
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26
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SCHEDULE 5 The Security Documents
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27
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SCHEDULE 6 Amendments to the SPAs for "GYME", "NATT" and "NJORD"
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29
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|
SCHEDULE 7 Amendments to the SPAs for the other Rigs
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30
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|
SCHEDULE 8 Form of Holdco Guarantee
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31
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|
SCHEDULE 9 Commercial Terms
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36
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(1)
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PPL SHIPYARD PTE LTD, a company organised and existing under the laws of Singapore having its registered office at 80 Tuas South Boulevard, Singapore 637051 (the Seller);
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(2) |
THE COMPANIES whose names and details are set out in Schedule 1 (each an Owner and together the Owners); and
|
(3) |
BORR DRILLING LIMITED, a company organised and existing under the laws of Bermuda having its registered office at S.E. Pearman Building, 2nd Floor, 9 Par-la-Ville Road, Hamilton HM11, Bermuda (Borr Drilling).
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(A) |
The Seller has granted the Seller's Credits to the Principal Debtors on the terms set out in the SPAs.
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(B) |
Borr Drilling and the Owners have requested that the Seller agree to defer the payment of certain interest instalments due or to become due on the Seller's Credits.
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(C) |
This Deed sets out the terms on which the Seller has consented to such request.
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1. |
DEFINITIONS AND INTERPRETATION
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1.1 |
Definitions
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(a)
|
the Rigs and their earnings, insurances and requisition compensation;
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(b) |
all long-term contracts in respect of the Rigs (being contracts over 12 months in duration);
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(c) |
the shares in the Owners; and
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(d) |
all such other assets over which any Transaction Security is from time to time granted.
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(a) |
in respect of an SPA, any event defined therein as constituting an "event of default"; and
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(b) |
in respect of a Mortgage, any event defined therein as an "Event of Default".
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(a) |
in the case of the Seller, Singapore;
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(b) |
in the case of Borr Drilling, Bermuda; and
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(c) |
in the case of each Owner, the jurisdiction set out against its name in Schedule 1.
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(a) |
the credit agreement dated 16 May 2018 made between Offshore Partners and Borr Hermod Inc. (formerly known as Borr Jack-UP XXIX Inc.) Holdings;
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(b) |
the credit agreement dated 16 May 2018 made between Offshore Partners and Borr Heimdal Inc. (formerly known as Borr Jack-UP XXVIII Inc.) Holdings; and
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(c) |
the credit agreement dated 16 May 2018 made between Offshore Partners and Borr Hild Inc. (formerly known as Borr Jack-UP XXVII Inc.) Holdings.
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(a) |
the business, assets or financial condition of the Borr Drilling Group; or
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(b) |
the ability of Borr Drilling or Holdco or any Owner to perform and comply with its obligations under any Transaction Document; or
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(c) |
the validity, legality or enforceability of any Transaction Document; or
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(d) |
the validity, legality or enforceability of any Transaction Security or the priority or ranking of any Transaction Security.
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1.2 |
Construction and interpretation
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|
(a) |
references to Clauses and Schedules are to Clauses of and the Schedules to this Deed;
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(b) |
references to persons include bodies corporate, firms and unincorporated associations and that person's legal personal representatives, administrators and successors;
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|
(c) |
the singular includes the plural and vice versa;
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(d) |
clause headings are included for the convenience of the parties only and do not affect its interpretation;
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(e) |
references to any document include the same as varied, supplemented, novated, restated or replaced from time to time; and
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|
(f) |
any phrase introduced by the terms including, include, in particular or any similar expression shall be construed
as illustrative and shall not limit the sense of the words preceding those terms.
|
1.3 |
Conflict with other Transaction Documents
|
2. |
DEFERRAL OF INTEREST
|
2.1 |
Agreement to defer
|
(a) |
Deferral of interest
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|
(b) |
Repayment of Capitalised Interest
|
|
(c) |
Interest rates to apply
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|
(i) |
Interest shall continue to accrue on each Seller's Credit during the Extension Period at the rate specified in the relevant SPA but shall not be payable during the Extension Period, except as provided in paragraph (e) below.
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|
(ii) |
Interest on the Capitalised Interest under each SPA shall accrue at the rate of [***] per annum, except in relation to any part thereof which is not repaid when due on 1 January 2022, in which case interest shall accrue thereon at the
default rate of [***] per annum.
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|
(d) |
Interest to be capitalised
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|
(i) |
the amount of the Deferred Instalment in respect of each SPA for the first Financial Quarter of 2020 shall be deemed, as from 1 April 2020, to have been converted in full into a principal amount outstanding under that SPA which is separate
from the relevant Seller's Credit;
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|
(ii) |
the principal amount referred to in paragraph (i) above in respect of an SPA, as increased from time to time under the following provisions of this paragraph (d), is referred to as the Capitalised Interest
in respect of that SPA;
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|
(iii) |
on 30 June 2020, the amount of the Capitalised Interest in respect of each SPA shall be increased by adding to it:
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|
(A) |
the amount of interest which has accrued on that Capitalised Interest at the rate specified in Clause 2.1(c)(ii) during the period from 1 April 2020 to 30 June 2020 (both dates inclusive); and
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(B) |
the amount of interest which has accrued on the Seller's Credit under that SPA at the rate specified in Clause 2.1(c)(i) during the period from 1 April 2020 to 30 June 2020 (both dates inclusive) and which has not been paid to the Seller
under paragraph (e) below; and
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|
(iv) |
on the last Banking Day of each Financial Quarter thereafter up to and including the fourth Financial Quarter of 2021, the amount of the Capitalised Interest in respect of each SPA shall be further increased by adding to it:
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|
(A) |
the amount of interest which has accrued on that Capitalised Interest at the rate specified in Clause 2.1(c)(ii) during the relevant Financial Quarter; and
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(B) |
the amount of interest which has accrued on the Seller's Credit under that SPA at the rate specified in Clause 2.1(c)(i) during the relevant Financial Quarter and which has not been paid to the Seller under paragraph (e) below.
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(e) |
Partial payment of interest
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|
(i) |
an amount of [***] shall be paid to the Seller on or before 30 June 2020 representing the partial payment required for the Deferred Instalments relating to the first two Financial Quarters of 2020;
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(ii) |
an amount of [***] shall be paid to the Seller on or before 30 September 2020 representing the partial payment required for the Deferred Instalments relating to the third Financial Quarter of 2020;
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(iii) |
an amount of [***] shall be paid to the Seller on or before 31 December 2020 representing the partial payment required for the Deferred Instalments relating to the fourth Financial Quarter of 2020;
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(iv) |
an amount of [***] shall be paid to the Seller on or before 30 March 2021 representing the partial payment required for the Deferred Instalments relating to the first Financial Quarter of 2021;
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(v) |
an amount of [***] shall be paid to the Seller on or before 30 June 2021 representing the partial payment required for the Deferred Instalments relating to the second Financial Quarter of 2021;
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(vi) |
an amount of [***] shall be paid to the Seller on or before 30 September 2021 representing the partial payment required for the Deferred Instalments relating to the third Financial Quarter of 2021; and
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(vii) |
an amount of [***] shall be paid to the Seller on or before 31 December 2021 representing the partial payment required for the Deferred Instalments relating to the fourth Financial Quarter of 2021.
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2.2 |
Conditions precedent to deferral
|
|
(a) |
receipt by the Seller of a copy of this Deed duly executed and delivered by the Owners and Borr Drilling;
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|
(b) |
receipt by Borr Drilling of a copy of this Deed duly executed and delivered by the Seller;
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(c) |
receipt by the Seller of evidence satisfactory to it that Borr Drilling and its relevant affiliates have entered into amendment or extension agreements with:
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|
(i) |
Hayfin in respect of the Hayfin Facility Agreement;
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|
(ii) |
the Keppel Parties in respect of the Keppel Credit Agreements;
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|
(iii) |
the USD100m Lenders in respect of the USD100m RCF Agreement; and
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|
(iv) |
the USD450m Lenders in respect of the USD450m Facilities Agreement,
|
2.3 |
Conditions subsequent to deferral
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|
(a) |
receipt by the Seller, not later than 16:00 London time on 9 June 2020, that the deferred interest originally due under the Hayfin Facility Agreement, the USD100m RCF Agreement and the USD450m Facilities Agreement in March 2020 has been
paid and that all other conditions to the effectiveness of the Other Amendment Agreements have been satisfied;
|
|
(b) |
satisfaction of the requirements set out in paragraphs (ii) and (iii) of Clause 7.1(a) in respect of the Equity Raise not later than the respective times and dates specified therein;
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|
(c) |
satisfaction of the requirements set out in Clause 7.1(c) in respect of Holdco not later than the time and date specified therein;
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(d) |
satisfaction of the requirements set out in Clause 7.1(d) in respect of the Contract Assignments not later than the time and date specified therein;
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(e) |
satisfaction of the requirements set out in Clause 7.1(e) in respect of the Mortgage Amendments and the Insurance Assignment Amendments not later than the time and date specified therein;
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(f) |
satisfaction of the requirements set out in Clause 7.1(f) in respect of the corporate authorities of Borr Drilling and the Owners not later than the time and date specified therein;
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(g) |
satisfaction of the requirements set out in Clause 7.1(g) in respect of the valuation of the Rigs not later than the time and date specified therein;
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(h) |
receipt by the Seller, not later than noon London time on 19 June 2020, of legal opinions from the Seller's legal advisers with respect to:
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|
(i) |
the capacity of Borr Drilling and the Owners to enter into this Deed, the Contract Assignments, the Mortgage Amendments and the Insurance Assignment Amendments; and
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|
(ii) |
the enforceability of this Deed, the Contract Assignments, the Mortgages (as amended by the Mortgage Amendments) and the Insurance Assignments (as amended by the Insurance Assignment Amendments),
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|
(i) |
receipt by the Seller, not later than 16:00 London time on the date falling 30 days after the date of this Deed, of legal opinions from the Seller's legal advisers with respect to:
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|
(i) |
the capacity of Holdco to enter into the Holdco Guarantee and the Share Charges relating to the Direct Subsidiaries;
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|
(ii) |
the capacity of BM Ventures to enter into the Share Charges relating to the Indirect Subsidiaries; and
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(iii)
|
the enforceability of the Holdco Guarantee and the Share Charges, in such terms as the Seller may require.
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3. |
CROSS-COLLATERALISATION AND CROSS-DEFAULT
|
3.1 |
Cross-collateralisation of existing Transaction Security
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|
(a) |
the Owners undertake to enter into the Mortgage Amendments and the Insurance Assignment Amendments in accordance with Clause 7.1(e) in order to cross- collateralise the existing Transaction Security; and
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|
(b) |
the Contract Assignments and Share Charges shall be on terms that provide for cross- collateralisation.
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3.2 |
Cross-defaults
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|
(a) |
the event of default provisions of the SPAs relating to the Rigs "GYME", "NATT" and "NJORD" (and related definitions) shall be amended as set out in Schedule 6; and
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|
(b) |
the event of default provisions of the SPAs relating to the other Rigs (and related definitions) shall amended as set out in Schedule 7.
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4. |
GENERAL PROVISIONS IN RESPECT OF AMENDMENTS
|
4.1 |
No other amendments; no derogation or prejudice of rights
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|
(a) |
Save as expressly set out in this Deed or in the Mortgage Amendments or the Insurance Assignment Amendments, all terms and conditions of the Transaction Documents shall remain unaltered in full force and effect.
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|
(b) |
The Seller's forbearance granted under this Deed (including the agreement to defer interest payments under the SPAs) does not and will not derogate or prejudice any of the Seller's rights under the SPAs, the Guarantees or the Security
Documents.
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|
(c) |
If Borr Drilling or any Owner (i) breaches any of its payment obligations under this Deed or (ii) fails to comply with Clause 2.3 or (iii) breaches any other covenant or term of this Deed or the other Transaction Documents during the
Extension Period and such breach (subject to any notice or cure period therein) would constitute an Event of Default under any SPA or Mortgage, the Seller shall be entitled to accelerate repayment of the Seller's Credits, the Capitalised
Interest and the Back End Fees under the SPAs and the Security Documents and to exercise all of its rights upon default under the SPAs and the Security Documents, including the right to take possession of the Rigs.
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|
(d) |
The guarantees and indemnities granted by the Owners under Clause 8 are additional to, and do not substitute or replace, the Guarantees given by the Owners (which shall remain in full force and effect).
|
4.2 |
Conditional and unconditional amendments
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4.3 |
Amendments to survive Extension Period
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5. |
REPRESENTATIONS AND WARRANTIES
|
5.1 |
Mutual representations and undertakings
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|
(a) |
it is duly organised and validly existing under the laws of its Jurisdiction of Incorporation and, if relevant under such laws, in good standing;
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|
(b) |
it has full power and authority to become a party to this Deed and has taken all necessary action and has obtained all consents, licences and approvals required in connection with the entry into and performance of this Deed;
|
(c)
|
its execution, delivery and performance of this Deed does not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable
to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; and
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(d)
|
(in the case of the Owners only and with effect from the Effective Time only) its guarantee obligations under Clause 8 constitute valid, legal and binding obligations which are in full force and effect
and which are enforceable against it in accordance with its terms and, to the extent not secured by the Transaction Security, rank at least pari passu with all of its other present and future unsecured and unsubordinated indebtedness (with
the exception of any obligations which are mandatorily preferred by law and not by contract).
|
5.2 |
Repetition of prior representations and warranties by Borr Drilling and the Owners
|
5.3 |
Other representations and warranties of Borr Drilling and the Owners
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|
(a) |
Borr Drilling represents, warrants and confirms that:
|
|
(i) |
it has paid in full (when due) the May 2020 coupon on its $350,000,000 senior unsecured convertible bonds 2018/2023; and
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|
(ii) |
the equity commitments referred to in Clause 7.1(a)(i) were fully subscribed before 19:00 London time on 25 May 2020;
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|
(b) |
Borr Drilling represents, warrants and confirms that as at the date of this Deed and at the Effective Time:
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|
(i) |
Borr Drilling is the direct registered, legal and beneficial of 100% of the shares in each of the following Owners (together, the Direct Subsidiaries):
|
|
(A) |
Borr Gerd Inc.
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|
(B) |
Borr Gyme Inc.
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|
(C) |
Borr Natt Inc.
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(D) |
Borr Groa Inc.
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|
(E) |
Borr Gunnlod Inc.;
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|
(ii) |
Borr Drilling is the direct registered, legal and beneficial of 100% of the shares in BM Ventures; and
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|
(iii) |
BM Ventures is the direct registered, legal and beneficial of 100% of the shares in each of the following Owners (together, the Indirect Subsidiaries):
|
|
(A) |
Borr Galar (UK) Limited
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|
(B) |
Borr Gersemi (UK) Limited
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|
(C) |
Borr Grid (UK) Limited
|
|
(D) |
Borr Njord (UK) Limited;
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|
(c) |
Borr Drilling and each Owner represents, warrants and confirms that as at the date of this Deed and at the Effective Time:
|
|
(i) |
no Event of Default under any SPA or Mortgage has occurred and is continuing (other than in connection with the deferral of the interest originally due under the SPAs on 31 March 2020); and
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|
(ii) |
no Material Adverse Change has occurred and is continuing.
|
6. |
CONFIRMATIONS AND RELEASE BY BORR DRILLING AND THE OWNERS
|
6.1 |
Amounts owing
|
|
(a) |
the principal amount of each Seller's Credit which is owing to the Seller at the date of this Deed is the amount set out in respect of it in Schedule 4;
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|
(b) |
the interest instalments which fell due under the SPAs on 31 March 2020 remain outstanding in full (and payable in accordance with the terms of this Deed); and
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(c) |
no amount owing to the Seller under the Transaction Documents is subject to any offset, defence or other reduction.
|
6.2 |
Transaction Security
|
|
(a) |
the Security Interests granted to the Seller under the Mortgages and Insurance Assignments are and will remain first priority Security Interests over the assets to which they relate; and
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|
(b) |
the Mortgages and Insurance Assignments are valid and enforceable in accordance with their terms.
|
6.3 |
Release of claims
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|
(a) |
With effect from the Effective Time, Borr Drilling and the Owners release the Seller, Sembcorp Marine Ltd. and the agents and affiliates of the Seller and Sembcorp Marine Ltd. from all claims, known or unknown, arising prior to the
Effective Time in connection with this Deed (and the discussions relating to it), the Rigs, the Master Agreement, the SPAs, the Seller's Parent Company Guarantees, the Mortgages and the Insurance Assignments, other than claims caused by fraud
or wilful misconduct.
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|
(b) |
Without prejudice to paragraph (a) above, Borr Drilling and the Owners confirm that Sembcorp Marine Ltd. has no remaining actual or contingent liability under the Seller's Parent Company Guarantees issued by it in respect of each SPA and
that they will use reasonable efforts to procure that the originals of the Seller's Parent Company Guarantees are delivered to the Seller promptly after the date of this Deed.
|
7. |
UNDERTAKINGS OF BORR DRILLING AND THE OWNERS
|
7.1 |
In consideration of the Seller's agreement contained in Clause 2, Borr Drilling and the Owners undertake to the Seller on and with effect from the Effective Time as follows:
|
|
(a) |
Equity Raise
|
|
(i) |
the equity commitments must have been fully subscribed before 19:00 London time on 25 May 2020;
|
|
(ii) |
the equity raise must be approved by a special general meeting of Borr Drilling to be held not later than 5 June 2020; and
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|
(iii) |
the new shares must be issued, and the subscription funds released to Borr Drilling, not later than 16:00 London time on 8 June 2020
|
|
(b) |
Restrictions on dealings with shares
|
|
(i) |
prior to its transfer of such shares to Holdco in accordance with paragraph (c) below, it shall not enter into any agreement (including an option agreement) for the sale of all or any of the shares in the Direct Subsidiaries or BM
Ventures or otherwise transfer or agree to transfer all or any of such shares nor shall it mortgage, charge, assign, pledge, encumber or otherwise create any Security Interest in relation to such shares (or any of them);
|
|
(ii) |
it shall procure that BM Ventures does not at any time enter into any agreement (including an option agreement) for the sale of all or any of the shares in the Indirect Subsidiaries, or otherwise transfer or agree to transfer all or any of
such shares in the Indirect Subsidiaries and that BM Ventures shall not mortgage, charge, assign, pledge, encumber or otherwise create any Security Interest in relation to such shares in the Indirect Subsidiaries (or any of them), other than
with the prior written consent of the Seller or under the Share Charges relating to them; and
|
|
(iii) |
following its transfer of such shares to Holdco in accordance with paragraph (c) below, it shall procure that Holdco does not enter into any agreement (including an option agreement) for the sale of all or any of the shares in the Direct
Subsidiaries or BM Ventures, or otherwise transfer or agree to transfer all or any of such shares in the Direct Subsidiaries or BM Ventures and that Holdco shall not mortgage, charge, assign, pledge, encumber or otherwise create any Security
Interest in relation to such shares in the Direct Subsidiaries and BM Ventures (or any of them), other than with the prior written consent of the Seller or under the Share Charges relating to the Direct Subsidiaries.
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|
(c) |
Holdco and BM Ventures
|
|
(i) |
incorporate in Bermuda or the Cayman Islands (or such other jurisdiction as the Seller shall approve) a wholly-owned direct subsidiary (Holdco);
|
|
(ii) |
transfer ownership to Holdco of all of the shares in each Direct Subsidiary and BM Ventures and the shares in all of the wholly owned subsidiaries of Borr Drilling (other than Borr Jack-Up XVI Inc.);
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|
(iii) |
procure that Holdco executes in favour of the Seller a limited guarantee and indemnity in respect of the obligations of the Principal Debtors to pay the Capitalised Interest under each SPA (but excluding all other liabilities under the
Transaction Documents), such guarantee and indemnity to be substantially in the form set out in Schedule 8 (the Holdco Guarantee);
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|
(iv) |
procure that:
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|
(A) |
Holdco executes in favour of the Seller a first priority deed of charge over all of its shares in each Direct Subsidiary; and
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(B) |
BM Ventures executes in favour of the Seller a first priority deed of charge over all of its shares in each Indirect Subsidiary,
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|
(v) |
procure that Holdco delivers to the Seller:
|
|
(A) |
all such share certificates, instruments of transfer and other documents as are required to be delivered to it under the terms of the Share Charges in relation to the Direct Subsidiaries;
|
|
(B) |
a certified copy of the certificate of incorporation and articles of incorporation and bylaws or equivalent constitutional documents of Holdco;
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(C) |
a certified copy of a resolution of the board of directors of Holdco authorising and approving Holdco's entry into the Holdco Guarantee and the Share Charges in relation to the Direct Subsidiaries;
|
|
(D) |
the original (or a certified true copy) of any power of attorney issued pursuant to such resolutions; and
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(E) |
such other documents, if any, as may reasonably be required by the Seller in connection with the legal opinions referred to in Clause 2.3(i);
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|
(vi) |
procure that BM Ventures delivers to the Seller:
|
|
(A) |
all such share certificates, instruments of transfer and other documents as are required to be delivered to it under the terms of the Share Charges in relation to the Indirect Subsidiaries;
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(B) |
a certified copy of the certificate of incorporation and articles of incorporation and bylaws or equivalent constitutional documents of BM Ventures;
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(C) |
a certified copy of a resolution of the board of directors of BM Ventures authorising and approving BM Ventures' entry into the Share Charges in relation to the Indirect Subsidiaries;
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(D) |
the original (or a certified true copy) of any power of attorney issued pursuant to such resolutions; and
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(E) |
such other documents, if any, as may reasonably be required by the Seller in connection with the legal opinions referred to in Clause 2.3(i).
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|
(d) |
Contract Assignments
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|
(e) |
Amendments to Mortgages and Insurance Assignments
|
|
(i) |
execute and register with the appropriate ship registry an amendment to the Mortgage on its Rig (a Mortgage Amendment); and
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|
(ii) |
execute an amendment to the Insurance Assignment in respect of its Rig (an Insurance Assignment Amendment),
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|
(f) |
Corporate authorities of Borr Drilling and the Owners
|
|
(i) |
a certified copy of its certificate of incorporation and articles of incorporation and bylaws or equivalent constitutional documents which, for each Owner, shall comply with the requirements of Clause 7.1(m);
|
|
(ii) |
a certified copy of a resolution of its board of directors authorising and approving its entry into this Deed and, in the case of each Owner, the relevant Contract Assignment, Mortgage Amendment and Insurance Assignment Amendment relating
to its Rig;
|
|
(iii) |
the original (or a certified true copy) of any power of attorney issued by it pursuant to such resolutions; and
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|
(iv) |
such other documents, if any, as may reasonably be required by the Seller in connection with the legal opinions referred to in Clause 2.3(h).
|
|
(g) |
Rig valuations
|
|
(h) |
Provision of information
|
|
(i) |
they shall provide the Seller with copies of all executed agreements (including letters of intent) made with the Other Secured Creditors prior to the Effective Time in relation to the actual or proposed amendments to the Other Secured
Facility Agreements;
|
|
(ii) |
until the Capitalised Interest under each SPA has been repaid in full, they shall:
|
|
(A) |
procure that the Seller is granted continued access to the Data Room for so long as it is maintained; and
|
|
(B) |
upon request, provide the Seller with such other information in respect of the Rigs or the business, assets or financial condition of the Borr Drilling Group as the Seller may reasonably require,
|
|
(iii) |
until the Capitalised Interest under each SPA has been repaid in full, simultaneously with the giving of any request by Borr Drilling or any other member of the Borr Drilling Group to any of the Other Secured Creditors for a material
waiver, forbearance or amendment under or in respect of any of the Other Secured Facility Agreements, they shall send a copy of such request to the Seller;
|
|
(iv) |
upon becoming aware that an event of default (however described) or a relevant mandatory prepayment event has occurred under any of the Other Secured Facility Agreements, they shall immediately notify the Seller of that event;
|
|
(v) |
upon receiving notice from (or on behalf of) any of the Other Secured Creditors that an event of default (however described) or a relevant mandatory prepayment event has occurred (or is alleged by such Other Secured Creditors) to have
occurred under any of the Other Secured Facility Agreements, they shall immediately provide the Seller with a copy of that notice; and
|
|
(vi) |
they shall give the Seller at least 10 days' written notice in advance of any filing by Borr Drilling or any other member of the Borr Drilling Group (including an Owner) for Chapter 11 or any other insolvency proceeding in any
jurisdiction.
|
|
(i) |
Restriction on dividends
|
|
(j) |
Restriction on changes to domicile
|
|
(k) |
Dealings with the Collateral Assets
|
|
(i) |
except with the Seller's prior written consent, they shall take all commercially reasonable steps to preserve the Transaction Security and to procure that no third party claims an interest over any asset which is subject to the Transaction
Security (including, for example, by the grant of a priming lien over any Rig or the shares in any Owner);
|
|
(ii) |
they shall procure that the Rigs are maintained in good condition (ordinary wear and tear excepted) and that the Rigs are insured, in each case as required by the relevant Security Documents;
|
|
(iii) |
they shall take all commercially reasonable steps to preserve the Collateral Assets and to ensure that no third party can claim an interest in or over any Collateral Asset superior to the Seller's first priority Security Interest in or
over that Collateral Asset (other than as mandatorily required by law);
|
|
(iv) |
except with the Seller's prior written consent, no Owner shall initiate a sale or cause or allow the sale of its Rig unless:
|
|
(A) |
at the time of completion of the sale, no Event of Default has occurred and is continuing; and
|
|
(B) |
the proceeds of sale (after deducting the reasonable costs of sale) are sufficient to pay, and are applied in full payment of, the Seller's Credit, the pro rata portion of Capitalised Interest,
the Back End Fee and all other amounts owing to the Seller under the SPA in each case relating to that Rig sold,
|
|
(l) |
Marketing and cooperation
|
|
(m) |
Restrictions on governance
|
|
(i) |
the relevant Owner from changing its domicile or Jurisdiction of Incorporation;
|
|
(ii) |
the creation of any Security Interest over the shares in the relevant Owner;
|
|
(iii) |
the relevant Owner from refusing to register any transfer of shares made by the Seller in exercise of its rights under the Share Charge relating to that Owner; and
|
|
(iv) |
(to the extent permitted by relevant company law) the amendment of the provisions incorporated in the articles of incorporation and bylaws or equivalent constitutional documents to give effect to the above restrictions,
|
|
(n) |
Other restrictions on the Borr Drilling Group
|
|
(i) |
make any scheduled repayment or voluntary prepayment of principal to any of the Other Secured Creditors; or
|
|
(ii) |
make further purchases of rigs or incur new debts to fund the acquisition of any rigs, other than rigs already contracted for at the date of this Deed and related debt.
|
8. |
CROSS-GUARANTEES OF OWNERS
|
8.1 |
Commencement
|
8.2 |
Guarantee
|
|
(a) |
the due full performance of all obligations of each Principal Debtor (other than itself) arising under the SPAs now and in future owed under the SPAs to the Seller by such Principal Debtor (such performance obligations being collectively
referred to as the Performance Obligations); and
|
|
(b) |
the prompt payment in full of all sums from time to time due and owing to the Seller by each Principal Debtor (other than itself) under the SPAs (the Payment Obligations).
|
8.3 |
Indemnity
|
8.4 |
Payment and performance
|
|
(a) |
any Principal Debtor fails to comply with any of its Payment Obligations on its due date, the Owners shall, upon receipt from the Seller of a written demand, pay the sum demanded by the Seller free of any deduction or withholding, within
21 days from the date of such written demand, the said written demand being binding on the Owners; and
|
|
(b) |
any Principal Debtor shall fail to perform any of the Performance Obligations, each Owner shall, upon receipt from the Seller of a written demand for performance under this Clause 8, take whatever steps may be necessary to achieve
performance of such Performance Obligations in the same manner and as fully as the relevant Principal Debtor might do, within 7 days from the date of such written demand, the said written demand being binding on the Owners,
|
8.5 |
Waiver of defences
|
|
(a) |
any waiver by the Seller of any terms, provisions, conditions, obligations and agreements of the SPAs or any forbearance exercise by the Seller in relation thereto;
|
|
(b) |
any failure, omission or delay on the part of the Seller to enforce, assert or exercise any right, power or remedy conferred on the Seller in the SPAs or this Deed, or at law or in equity;
|
|
(c) |
the bankruptcy, other insolvency or liquidation, administration, winding-up, incapacity, limitation, disability or discharge by operation of law or change in the constitution or name of the relevant Principal Debtor or any Owner;
|
|
(d) |
any suspension or variation to or amendment of the SPAs;
|
|
(e) |
any bond, mortgage, assignment security or guarantee (other than the guarantee contained in this Clause 8) held or obtained by the Seller under the SPAs, or any release or waiver thereof; or
|
|
(f) |
any change in the shareholding relationship between the Owners and the Principal Debtors, the absorption in, or amalgamation with, or the acquisition of all or part of any Principal Debtor's or any Owner's undertakings or assets by, any
other person, body or organisation, or any reconstruction or reorganisation of any kind; or
|
|
(g) |
any breach of an SPA by, or other default of, any Principal Debtor.
|
8.6 |
Continuing guarantee
|
8.7 |
Guarantee obligations to be secured
|
9. |
COSTS AND EXPENSES
|
9.1 |
Transaction costs
|
|
(a) |
in considering and responding to (i) Borr Drilling's letters to the Seller dated 12 March 2020 and 19 March 2020 respectively and (ii) the waiver request from Borr Drilling and the Owners dated 26 April 2020;
|
|
(b) |
in considering and negotiating the outline terms of the interest deferral granted under this Deed including negotiation and preparation of the "PPL Term Sheet" dated 21 May 2020 made between Borr Drilling and the Seller;
|
|
(c) |
in the negotiation, preparation, printing, execution and registration of this Deed, the Holdco Guarantee, the Share Charges, the Contract Assignments, the Mortgage Amendments and the Insurance Assignment Amendments; and
|
|
(d) |
in collating, monitoring and otherwise attending to the conditions precedent and conditions subsequent specified in Clause 2.
|
9.2 |
Enforcement and other costs
|
|
(a) |
in the enforcement or preservation or the attempted enforcement or preservation of any of the Seller's rights and powers under the Transaction Documents or of the Transaction Security;
|
|
(b) |
in connection with any actual or proposed amendment of or supplement to any Transaction Document, or with any request to the Seller to grant any consent or waiver in respect of any provision of any Transaction Document, whether or not it
is given, provided such costs are reasonable; and
|
|
(c) |
arising out of any act or omission made by the Seller in good faith in connection with any of the matters dealt with in the Transaction Documents, provided such costs are reasonable.
|
10. |
MISCELLANEOUS
|
10.1 |
Time of essence
|
10.2 |
Disclosures
|
10.3 |
Remedies and waivers
|
10.4 |
Waivers and amendments to be in writing
|
10.5 |
Partial invalidity
|
10.6 |
Counterparts; electronic or digital signature
|
|
(a) |
This Deed may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.
|
|
(b) |
Each Party agrees that any other Party may sign this Deed by electronic or digital signature (whatever form the electronic or digital signature takes) and that such method of signature is as conclusive of that Party's intention to be bound
by this Deed as if the person or persons signing on behalf of that Party had signed by manuscript signature.
|
10.7 |
Third party rights
|
|
(a) |
Subject to paragraph (b) below, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Act) to enforce or enjoy the benefit of any term of
this Deed.
|
|
(b) |
Notwithstanding paragraph (a) above but subject always to paragraph (c) below and the provisions of the Third Parties Act, a person who is not a Party may rely on any provision under this Deed which expressly confers rights on them.
|
|
(c) |
Notwithstanding any term of this Deed or any other Transaction Document, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
11. |
NOTICES
|
11.1 |
Communications in writing
|
11.2 |
Addresses
|
|
(a) |
in the case of the Seller:
|
|
(b) |
in the case of Borr Drilling and each Owner:
|
12. |
CONFIDENTIALITY
|
13. |
GOVERNING LAW AND ARBITRATION
|
13.1 |
Governing law
|
13.2 |
Arbitration
|
|
(a) |
If any dispute arises between the Seller on the one hand and any one or more of Borr Drilling and the Owners (together the Borr Parties) on the other hand as to any matter arising under or out of or
in connection with this Deed, the Seller and the Borr Parties shall in the first instance attempt to settle the dispute amicably by reference of the dispute to the senior management of the Seller and Borr Drilling for negotiation and
resolution.
|
|
(b) |
If the dispute remains unresolved within a 14 day period from the commencement of such negotiation, the Seller and the Borr Parties shall attempt to settle such dispute by mediation in accordance with the Mediation Procedure of the
Singapore Mediation Centre. Neither the Seller nor the Borr Parties (each a Side) may terminate the mediation until the other Side has made its opening presentation and the mediator has met each Side
separately. The mediation shall take place in Singapore and the language of the mediation shall be English. If the dispute remains unresolved within a 14 day period from the commencement of such negotiation, it shall be referred to
arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
|
|
(c) |
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.
|
|
(d) |
The reference shall be to three arbitrators. A Side wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other Side requiring the other Side to appoint its own
arbitrator within 14 days of that notice and stating that it will appoint its own arbitrator as sole arbitrator unless the other Side appoints its own and gives notice that it has done so within the 14 days specified. If the other Side does
not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the Side referring a dispute to arbitration may, without the requirement of any further prior notice to the other Side, appoints its own
arbitrator as sole arbitrator and shall advise the other Side accordingly. The award of a sole arbitrator shall be binding on both Sides as if the sole arbitrator had been appointed by agreement.
|
|
(e) |
In cases where neither the claim nor any counterclaim exceeds the sum of $100,000 the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
|
|
(f) |
Notwithstanding the above, the Parties may agree at any time to refer to mediation any difference and/or dispute arising out of or in connection with this Deed.
|
No.
|
Name
|
Jurisdiction of incorporation
|
Registered office
|
||||
1.
|
Borr Galar (UK) Limited
|
England
|
20 North Audley Street, London W1K 6LX, United Kingdom
|
||||
2.
|
Borr Gerd Inc.
(formerly Borr Jack-Up XVIII Inc.)
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
|
||||
3.
|
Borr Gersemi (UK) Limited
|
Scotland
|
Pavilion 4, Discovery Drive, Westpoint Business Park, Prospect Road, Westhill, AB32 6FE, Scotland
|
||||
4.
|
Borr Grid (UK) Limited
|
Scotland
|
Pavilion 4, Discovery Drive, Westpoint Business Park, Prospect Road, Westhill, AB32 6FE, Scotland
|
||||
5.
|
Borr Gyme Inc.
(formerly Borr Jack-Up XXIII Inc.)
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
|
||||
6.
|
Borr Natt Inc.
(formerly Borr Jack-Up XXIV Inc.)
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
|
||||
7.
|
Borr Groa Inc.
(formerly Borr Jack-Up XXII Inc.)
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
|
||||
8.
|
Borr Njord (UK) Limited
|
England
|
20 North Audley Street, London W1K 6LX, United Kingdom
|
||||
9.
|
Borr Gunnlod Inc.
(formerly Borr Jack-Up XXI Inc.)
|
Marshall Islands
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
|
No.
|
Rig
|
IMO No.
|
Flag
|
Owner
|
|||||
1.
|
Galar
(Hull P2041)
|
9689720
|
Liberia
|
Borr Galar (UK) Limited
|
|||||
2.
|
Gerd
(Hull P2043)
|
9688324
|
Vanuatu
|
Borr Gerd Inc.
(formerly Borr Jack-Up XVIII Inc.)
|
|||||
3.
|
Gersemi (Hull P2045)
|
9701437
|
Liberia
|
Borr Gersemi (UK) Limited
|
|||||
4.
|
Grid
(Hull P2046)
|
9701425
|
Liberia
|
Borr Grid (UK) Limited
|
|||||
5.
|
Gyme
(Hull P2047)
|
9758349
|
Liberia
|
Borr Gyme Inc.
(formerly Borr Jack-Up XXIII Inc.)
|
|||||
6.
|
Natt
(Hull P2048)
|
9765770
|
Panama
|
Borr Natt Inc.
(formerly Borr Jack-Up XXIV Inc.)
|
|||||
7.
|
Groa
(Hull P2049)
|
9727869
|
Vanuatu
|
Borr Groa Inc.
(formerly Borr Jack-Up XXII Inc.)
|
|||||
8.
|
Njord
(Hull P2052)
|
9768667
|
Liberia
|
Borr Njord (UK) Limited
|
|||||
9.
|
Gunnlod (Hull P2053)
|
9735074
|
Liberia
|
Borr Gunnlod Inc.
(formerly Borr Jack-Up XXI Inc.)
|
1. |
Sale and purchase agreement dated 9 October 2017 made between Borr Galar Inc. (formerly known as Borr Jack-Up XVII Inc.) and the Seller with respect to the sale and purchase of "GALAR" (ex Hull P2041) as amended by an amendment agreement
dated 16 September 2019 and as novated from and out of the name of Borr Galar Inc. to and into the name of Borr Drilling by a novation agreement dated 16 January 2020 made between Borr Galar Inc., the Seller, Borr Galar (UK) Limited and Borr
Drilling.
|
2. |
Sale and purchase agreement dated 9 October 2017 made between made Borr Gerd Inc. (formerly known as Borr Jack-Up XVIII Inc.) and the Seller with respect to the sale and purchase of "GERD" (ex Hull P2043) as amended by an amendment
agreement dated 9 October 2018.
|
3. |
Sale and purchase agreement dated 9 October 2017 made between Borr Gersemi Inc. (formerly known as Borr Jack-Up XIX Inc.) and the Seller with respect to the sale and purchase of "GERSEMI" (ex Hull P2045) as novated from and out of the name
of Borr Gersemi Inc. to and into the name of Borr Drilling by a novation agreement dated 26 June 2019 made between Borr Gersemi Inc., the Seller, Borr Gersemi (UK) Limited and Borr Drilling.
|
4. |
Sale and purchase agreement dated 9 October 2017 made between Borr Grid Inc. (formerly known as Borr Jack-Up XX Inc.) and the Seller with respect to the sale and purchase of "GRID" (ex Hull No. P2046) as novated from and out of the name of
Borr Gersemi Inc. to and into the name of Borr Drilling by a novation agreement dated 26 June 2019 made between Borr Grid Inc., the Seller, Borr Grid (UK) Limited and Borr Drilling.
|
5. |
Rig construction agreement dated 9 October 2017 made between Borr Gyme Inc. (formerly known as Borr Jack-Up XXIII Inc.) and the Seller with respect to the construction, sale and purchase of "GYME" (ex Hull P2047) as amended by an amendment
agreement dated 25 March 2020.
|
6. |
Rig construction agreement dated 9 October 2017 made between Borr Natt Inc. (formerly known as Borr Jack-Up XXIV Inc.) and the Seller with respect to the construction, sale and purchase of "NATT" (ex Hull P2048).
|
7. |
Sale and purchase agreement dated 9 October 2017 made between made Borr Groa Inc. (formerly known as Borr Jack-Up XXII Inc.) and the Seller with respect to the sale and purchase of "GROA" (ex Hull P2049) as amended by an amendment
agreement dated 9 October 2018.
|
8. |
Rig construction agreement dated 9 October 2017 made between Borr Njord Inc. (formerly known as Borr Jack-Up XXV Inc.) and the Seller with respect to the construction, sale and purchase of "NJORD" (ex Hull P2052) as amended by an amendment
agreement dated 30 October 2019 and as novated from and out of the name of Borr Njord Inc. to and into the name of Borr Drilling by a novation agreement dated 16 January 2020 made between Borr Njord Inc., the Seller, Borr Njord (UK) Limited
and Borr Drilling.
|
9. |
Sale and purchase agreement dated 9 October 2017 made between Borr Gunnlod Inc. (formerly known as Borr Jack-Up XXI Inc.) and the Seller with respect to the sale and purchase of "GUNNLOD" (ex Hull P2053) as amended by an amendment
agreement dated 25 March 2020.
|
No.
|
Rig
|
Seller's Credit Amount
|
Principal Debtor
|
Guarantor
|
|||||
1.
|
Galar
(Hull P2041)
|
$83,700,000
|
Borr Drilling Limited
|
Borr Galar (UK) Limited
|
|||||
2.
|
Gerd
(Hull P2043)
|
$83,700,000
|
Borr Gerd Inc.
|
Borr Drilling Limited
|
|||||
3.
|
Gersemi (Hull P2045)
|
$83,700,000
|
Borr Drilling Limited
|
Borr Gersemi (UK) Limited
|
|||||
4.
|
Grid
(Hull P2046)
|
$83,700,000
|
Borr Drilling Limited
|
Borr Grid (UK) Limited
|
|||||
5.
|
Gyme
(Hull P2047)
|
$83,700,000
|
Borr Gyme Inc.
|
Borr Drilling Limited
|
|||||
6.
|
Natt
(Hull P2048)
|
$83,700,000
|
Borr Natt Inc.
|
Borr Drilling Limited
|
|||||
7.
|
Groa
(Hull P2049)
|
$83,700,000
|
Borr Groa Inc.
|
Borr Drilling Limited
|
|||||
8.
|
Njord
(Hull P2052)
|
$83,700,000
|
Borr Drilling Limited
|
Borr Galar (UK) Limited
|
|||||
9.
|
Gunnlod (Hull P2053)
|
$83,700,000
|
Borr Gunnlod Inc.
|
Borr Drilling Limited
|
No.
|
Rig
|
Mortgage
|
Insurance Assignment
|
Guarantee
|
|||||
1.
|
Galar
(Hull P2041)
|
First preferred Liberian mortgage dated 13
February 2020 granted by Borr Galar (UK) Limited
|
First priority assignment of insurances and requisition compensation dated 13 February 2020 granted by Borr Galar (UK) Limited
|
Guarantee and indemnity dated 16
January 2020 granted by Borr Galar (UK) Limited
|
|||||
2.
|
Gerd
(Hull P2043)
|
First preferred Vanuatu mortgage dated 15 October 2018 granted by Borr Gerd Inc.
|
First priority assignment of insurances and requisition compensation dated 15 October 2018 granted by Borr Gerd Inc.
|
Guarantee and indemnity dated 13
October 2017 granted by Borr Drilling Limited
|
|||||
3.
|
Gersemi (Hull P2045)
|
First preferred Liberian mortgage dated 27 June 2019 granted by Borr Gersemi (UK) Limited
|
First priority assignment of insurances and requisition compensation dated 27 June 2019 granted by Borr Gersemi (UK) Limited
|
Guarantee and indemnity dated 27 June 2019 granted by Borr Gersemi (UK) Limited
|
|||||
4.
|
Grid
(Hull P2046)
|
First preferred Liberian mortgage dated 27 June 2019 granted by Borr Grid (UK) Limited
|
First priority assignment of insurances and requisition compensation dated 27 June 2019 granted by Borr Grid (UK) Limited
|
Guarantee and indemnity dated 27 June 2019 granted by Borr Grid (UK) Limited
|
|||||
5.
|
Gyme
(Hull P2047)
|
First preferred Liberian mortgage dated 25 March 2020 granted by Borr Gyme Inc.
|
First priority assignment of insurances and requisition compensation dated 25 March 2020 granted by Borr Gyme Inc.
|
Guarantee and indemnity dated 13
October 2017 granted by Borr Drilling Limited
|
|||||
6.
|
Natt
(Hull P2048)
|
First preferred Panamanian mortgage dated 10 October 2018 granted by Borr Natt Inc.
|
First priority assignment of insurances and requisition compensation dated 10 October 2018 granted by Borr Natt Inc.
|
Guarantee and indemnity dated 13
October 2017 granted by Borr Drilling Limited
|
|||||
7.
|
Groa
(Hull P2049)
|
First preferred Vanuatu mortgage dated 15 October 2018 granted by Borr Groa Inc.
|
First priority assignment of insurances and requisition compensation dated 15 October 2018 granted by Borr Groa Inc.
|
Guarantee and indemnity dated 13
October 2017 granted by Borr Drilling Limited
|
|||||
8.
|
Njord
(Hull P2052)
|
First preferred Liberian mortgage dated 13
February 2020 granted by Borr Njord (UK) Limited
|
First priority assignment of insurances and requisition compensation dated 13 February 2020 granted by Borr Njord (UK) Limited
|
Guarantee and indemnity dated 16
January 2020 granted by Borr Njord (UK) Limited
|
No.
|
Rig
|
Mortgage
|
Insurance Assignment
|
Guarantee
|
|||||
9.
|
Gunnlod
|
First preferred Liberian
|
First priority assignment
|
Guarantee and
|
|||||
(Hull P2053)
|
mortgage dated 25
|
of insurances and
|
indemnity dated 13
|
||||||
March 2020 granted by
|
requisition compensation
|
October 2017 granted
|
|||||||
Borr Gunnlod Inc.
|
dated 25 March 2020
|
by Borr Drilling Limited
|
|||||||
granted by Borr Gunnlod
|
|||||||||
Inc.
|
1. |
The definitions section beginning on page 3 of the SPA shall be amended in the SPAs for "GYME" and "NATT" by adding the following definition:
|
2. |
The definitions section beginning on page 3 of the SPA shall be amended in the SPA for "NJORD" by adding the following definition:
|
3. |
The definitions section beginning on page 3 of each SPA shall be further amended by adding the following wording at the end of the section:
|
4. |
Clause 24.2 of each SPA shall be amended by replacing paragraphs (b) to (f) inclusive with the following wording:
|
|
(b) |
if the Buyer fails to pay the Balance Payment when due as stated in Article 3.2(b), or fails to pay all or any part of the quarterly interest on the Balance Payment when due as stated in Article 3.2(b)(i) to Article 3.2(b)(iii) (as amended
by the Global Amendment Deed), or fails to pay the Back End Fee as stated in Article 3.5, or fails to pay the Capitalised Interest when due as stated in Clause 2.1 of the Global Amendment Deed, or if the Buyer, any Owner, Borr Drilling or
Holdco (each a "Security Party") is voluntarily or involuntarily made a part of any receivership, liquidation or bankruptcy proceedings or any Security Party becomes insolvent or otherwise unable to pay
its debts as they fall due or if an Event of Default occurs under any of the SPAs or Mortgages or if an event of default occurs under the terms of any of the other Security Documents (as such term is defined in the Global Amendment Deed) or
if any of the conditions subsequent set out in Clause 2.3 of the Global Amendment Deed are not satisfied according to its terms or if any Security Party fails to comply with any of its other material obligations under the Global Amendment
Deed or if any representation or statement made by any Owner or Borr Drilling in the Global Amendment Deed is or proves to have been incorrect or misleading in any material respect when made; or
|
|
(c) |
if, in the reasonable opinion of the Builder, any of the Transaction Security is in jeopardy and notice thereof has been given to the Buyer; or
|
|
(d) |
if anything is done or omitted to be done by any Security Party which, in the reasonable opinion of the Builder, materially impairs or renders insufficient or inadequate the Buyer's Parent Company Guarantee, the Holdco Guarantee (once
executed and delivered), any other Guarantee or any of the guarantees contained in Clause 8 of the Global Amendment Deed; or
|
|
(e) |
a Material Adverse Change occurs; or
|
|
(f) |
any indebtedness under any of the Other Secured Facility Agreements or any indebtedness of any member of the Borr Drilling Group in an amount which is more than [***] of Borr Drilling's tangible net worth is not paid when due or is or is
declared to be or is capable of being declared due and payable before its normal maturity,
|
1. |
Clause 1 of the SPAs for "GERD", "GROA" and "GUNNLOD" shall be amended by adding the following definition:
|
2. |
Clause 1 of the SPAs for "GALAR", "GERSEMI" and "GRID" shall be amended by adding the following definition:
|
3. |
Clause 1 of each SPA shall be further amended by adding the following wording at the end of that clause:
|
4. |
Clause 13.1 of each SPA shall be amended by replacing paragraphs (b) to (f) inclusive with the following wording:
|
|
(a) |
if the Buyer fails to pay the Balance Payment when due as stated in Clause 3(a)(ii), or fails to pay all or any part of the quarterly interest on the Balance Payment when due as stated in Clause 3(b) (as amended by the Global Amendment
Deed), or fails to pay the Back End Fee as stated in Clause 3(c), or fails to pay the Capitalised Interest when due as stated in Clause 2.1 of the Global Amendment Deed, or if the Buyer, any Owner, Borr Drilling or Holdco (each a "Security Party") is voluntarily or involuntarily made a part of any receivership, liquidation or bankruptcy proceedings or any Security Party becomes insolvent or otherwise unable to pay its debts as they
fall due or if an Event of Default occurs under any of the SPAs or Mortgages or if an event of default occurs under the terms of any of the other Security Documents (as such term is defined in the Global Amendment Deed) or if any of the
conditions subsequent set out in Clause 2.3 of the Global Amendment Deed are not satisfied according to its terms or if any Security Party fails to comply with any of its other material obligations under the Global Amendment Deed or if any
representation or statement made by any Owner or Borr Drilling in the Global Amendment Deed is or proves to have been incorrect or misleading in any material respect when made; or
|
|
(b) |
if, in the reasonable opinion of the Seller, any of the Transaction Security is in jeopardy and notice thereof has been given to the Buyer; or
|
|
(c) |
if anything is done or omitted to be done by any Security Party which, in the reasonable opinion of the Seller, materially impairs or renders insufficient or inadequate the Buyer's Parent Company Guarantee, the Holdco Guarantee (once
executed and delivered), any other Guarantee or any of the guarantees contained in Clause 8 of the Global Amendment Deed; or
|
|
(d) |
a Material Adverse Change occurs; or
|
|
(e) |
any indebtedness under any of the Other Secured Facility Agreements or any indebtedness of any member of the Borr Drilling Group in an amount which is more than [***] of Borr Drilling's tangible net worth is not paid when due or is or is
declared to be or is capable of being declared due and payable before its normal maturity,
|
From: | [Insert name of Holdco] |
|
|
To: | PPL Shipyard Pte Ltd |
|
|
Attention: | The Managing Director |
|
|
Subject: |
Holdco Guarantee
|
1. |
Capitalised terms used in this Guarantee have the meanings given to them in the Global Amendment Deed, unless otherwise defined herein.
|
2. |
Holdco hereby agrees to give to the Seller the following limited guarantees and indemnities:
|
|
(a) |
in the event that the Principal Debtors (or any of them) fail to perform their obligations under the Global Amendment Deed or any SPA in respect of the payment of the Capitalised Interest, Holdco hereby unconditionally and irrevocably
guarantees (the Guarantee) to the Seller the prompt payment in full of all the Capitalised Interest due and owing from time to time to the Seller by the Principal Debtors or any of them (the Payment Obligations); and
|
|
(b) |
as a separate and independent obligation and conditional upon failure by the Principal Debtors (or any of them) to perform their obligations under the Global Amendment Deed or any SPA in respect of the payment of the Capitalised Interest,
Holdco shall indemnify and hold harmless (and shall keep indemnified and held harmless) the Seller from time to time on demand from and against all losses, damages, expenses, liabilities, claims, costs (including without limitation any legal
costs and expenses) or proceedings as a result of the Payment Obligations (or any of them) being or becoming void, voidable, unenforceable or invalid for any reason whatsoever, whether or not known to the Seller (the Indemnity),
|
3. |
In the event that any Principal Debtor shall fail to comply with any of its Payment Obligations on its due date, Holdco shall upon receipt from the Seller of a written demand, pay the sum demanded by the Seller under this Guarantee free
of any deduction or withholding not later than the date (the Due Date) falling twenty one (21) days after the date of such written demand, the said written demand being binding on Holdco. If Holdco
fails to pay any sum so demanded on or before the Due Date, interest shall accrue on the unpaid amount from the Due Date up to the date of actual payment (both before and after judgment) at the rate of [***] per annum. Any interest accruing
under this Clause SCHEDULE 83 shall be immediately payable by the Guarantor on demand by the Seller.
|
4. |
Without prejudice to Clauses SCHEDULE 83 and SCHEDULE 812, nothing in this Guarantee shall create any responsibility on the part of Holdco in respect of the Payment Obligations over and above that assumed by the Principal Debtors in
respect of the Capitalised Interest, and Holdco shall be entitled to all the rights, elections, remedies and defences to which it or any Principal Debtor may be entitled under the Global Amendment Deed or any relevant SPA or applicable law.
|
5. |
This Guarantee shall become effective on the date hereof and shall remain in force until the discharge of the Payment Obligations under the Global Amendment Deed.
|
6. |
All payments to be made under this Guarantee shall be made in United States Dollars.
|
7. |
The Seller may serve more than one demand under this Guarantee, but in no event exceeding in aggregate the amount of the Capitalised Interest under the Global Amendment Deed, plus the cost and expenses referred to in Clause SCHEDULE 812
and interest for late payment (if any) payable under Clause SCHEDULE 83.
|
8. |
Any demand to be made or notice to be given by the Seller hereunder shall be made in writing in the English language and shall be delivered to Holdco in person or sent by registered airmail addressed to Holdco at the following address:
|
9. |
If any notice is given on a day which is not a working day in the place of receipt or is outside normal business hours in the place of receipt, the notice shall be deemed to have been given and to have taken effect at the opening of
business on the next working day in the place of receipt.
|
10. |
Holdco covenants and agrees with the Seller that the occurrence of any of the following events shall not in any way affect or release Holdco from all or any of its obligations under this Guarantee:
|
|
(a) |
any waiver by the Seller of any terms, provisions, conditions, obligations and/or agreements of the Global Amendment Deed or any other Transaction Document or any forbearance exercise by the Seller in relation thereto;
|
|
(b) |
any failure, omission or delay on the part of the Seller to enforce, assert or exercise any right, power or remedy conferred on the Seller in the Global Amendment Deed or any other Transaction Document or this Guarantee, or at law or in
equity;
|
|
(c) |
the bankruptcy, other insolvency or liquidation, administration, winding-up, incapacity, limitation, disability or discharge by operation of law or change in the constitution or name of Borr Drilling or any Owner or BM Ventures or Holdco;
|
|
(d) |
any suspension of or variation to or amendment of the Global Amendment Deed or any other Transaction Document (including, without limitation, an extension of time for payment of, or adjustment to the amount of, the Capitalised Interest);
|
|
(e) |
any bond, mortgage, assignment security or guarantee (other than this Guarantee) held or obtained by the Seller under the Global Amendment Deed or any other Transaction Document or any amendment thereto or release or waiver thereof;
|
|
(f) |
any change in the shareholding relationship between Holdco and Borr Drilling or any Owner, its absorption in, or amalgamation with, or the acquisition of all or part of their or its undertaking or assets by, any other person, body or
organisation, or any reconstruction or reorganisation of any kind; or
|
|
(g) |
any breach of the Global Amendment Deed or any other Transaction Document by, or other default of, Borr Drilling or any Owner or BM Ventures or Holdco.
|
11. |
This Guarantee shall remain in force and effect as a continuing guarantee and shall continue to apply and Holdco shall not be discharged or released from its obligations arising under this Guarantee notwithstanding any modifications,
changes, or amendments, or any arrangement made between Borr Drilling or any Owner and the Seller, or any variation or alteration of any kind to the terms and conditions of the Global Amendment Deed or any other Transaction Document
(including any assignment or novation thereof), or any breach by Borr Drilling or any Owner of the Global Amendment Deed or any other Transaction Document and/or any terms thereof being or becoming invalid, unenforceable or illegal, or by any
forbearance agreed to by Borr Drilling or any Owner and the Seller whether with or without Holdco's knowledge or consent, and Holdco's liability shall not be diminished thereby.
|
12. |
Holdco shall indemnify the Seller for all reasonable costs and expenses, including legal fees, incurred by the Seller in seeking to enforce this Guarantee.
|
13. |
Holdco represents and warrants to the Seller that:
|
|
(a) |
Holdco is duly incorporated under the laws of [insert jurisdiction of incorporation], possesses the capacity to sue and be sued in its own name and has the power to carry on its business and to own
its property and other assets;
|
|
(b) |
Holdco has the power and authority to make this Guarantee, and the execution and delivery of this Guarantee has been duly authorised by proper corporate action;
|
|
(c) |
the entry into and performance of this Guarantee does not (i) contravene any existing laws, statutes, rules, regulations or judgements of any governmental or official authority or body applicable to Holdco, (ii) conflict with or violate
in any respect the terms of Holdco's company constitution documents, (iii) conflict with or violate in any material respect any agreement, contract or other undertaking to which Holdco is party or which is binding on Holdco or any of
Holdco's assets or which otherwise constitutes a default under any agreement or other instrument to which Holdco is party or subject, or (iv) result in the creation of or imposition of or oblige Holdco to create any charge or other
encumbrance on any of Holdco's assets, rights or revenues;
|
|
(d) |
that its obligations under this Guarantee constitute its valid, legal and binding obligations and are in full force and effect and enforceable against it in accordance with its terms and rank pari passu with
all other of Holdco's present and future unsecured and unsubordinated indebtedness (with the exception of any obligations which are mandatorily preferred by law and not by contract);
|
|
(e) |
there is no pending action, suit or proceeding at law or in equity by or before a court or arbitral tribunal, or to the best of its knowledge, threatened against Holdco which would reasonably be expected to have a material adverse effect
on Holdco's ability to perform its obligations under this Guarantee;
|
|
(f) |
all consents, licences, approvals and authorisations required by Holdco in connection with the entry into, performance, validity and enforceability of this Guarantee have been obtained and are in full force and effect; and
|
|
(g) |
neither Holdco nor any of its affiliates has received notice of or is aware of any claim, action, suit, proceeding or investigation against it or them with respect to sanctions by a Sanctions Authority, nor is Holdco or any of its
affiliates located, organised or residing in any jurisdiction in violation of any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctions Authority.
|
14. |
In Clause 13:
|
|
(a) |
Sanctions Authority means (i) the United Nations, (ii) the European Union, (iii) the member states of the European Union, (iv) the United Kingdom, (v) the United States of America, (vi) the
respective governmental institutions and agencies of any of the foregoing, including, without limitation, OFAC, the United States Department of State and Her Majesty’s Treasury, (vii) any underwriters with whom a Rig is insured, (viii) any
P&I Club with whom a Rig is entered, (ix) the jurisdiction of registration or incorporation of Holdoco, Borr Drilling or any Owner, (x) the flag state of any Rig and (xi) any authority acting on behalf of any of them in connection with
Sanctions Laws; and
|
|
(b) |
Sanctions Laws means the economic or financial sanctions laws and/or regulations, trade embargoes, prohibitions, restrictive measures, decisions, executive orders or notices from regulators
implemented, adapted, imposed, administered, enacted and/or enforced by any Sanctions Authority.
|
15. |
This Guarantee shall be freely assignable by the Seller by way of security to any provider of finance to the Seller in connection with the Rigs, subject to prior written consent from Holdco (which shall not be unreasonably withheld or
delayed), and Holdco agrees to acknowledge such assignment without undue delay on reasonably acceptable terms.
|
16. |
This Guarantee shall be governed by and construed in accordance with English law.
|
17. |
All disputes in respect of this Guarantee will be resolved by arbitration in accordance with the (English) Arbitration Act 1996 or any statutory modification or re-enactment thereof. The seat and place of arbitration shall be London. The
language used in the arbitration shall be English. The arbitration shall be conducted in accordance with Clause 15 of the Master Agreement, which is deemed to be incorporated in this Guarantee as if set out herein, with logical amendments.
|
EXECUTED as a DEED | ) |
by [INSERT HOLDCO NAME]
|
) |
acting by
|
) |
) | |
in the presence of:
|
) |
) | |
Signature of witness:
|
|
Name of witness: | |
|
|
Occupation of witness: | |
|
|
Address of witness: |
1. |
Minimum liquidity requirement of $5,000,000 through 31 December 2020, increasing to $10,000,000 through 30 June 2021. From 1 July 2021 through 30 September 2021 maintain a minimum cash balance of $15,000,000, increasing to $20,000,000 from
1 October 2021 through 31 December 2021. On or after 1 January 2022, have a Free Liquidity equivalent to no less than the higher of (i) $30,000,000 and (ii) 3.00 per cent of the aggregate of Net Interest Bearing Debt and Ring Fenced
Liquidity.
|
2. |
The $30,000,000 RCF can only been drawn at the consent of all of USD100m Lenders and USD450m Lenders
|
3. |
No amortisation of principal until at least 1 January 2022.
|
1. |
Tivar
|
|
(a) |
Delivery of the Tivar deferred from July 2020 to June 2022.
|
|
(b) |
No sellers credit to be provided on delivery.
|
|
(c) |
Cost of deferral [***] for period from July 2020 to June 2022 plus [***] in opex to be paid to Keppel.
|
|
(d) |
Payment of cost cover and opex will be made in equal quarterly instalments beginning 1 January 2021 and ending at delivery on 1 June 2022.
|
2. |
Vale
|
|
(a) |
Vale rig delivery to be deferred from January 2022 until 30 September 2022.
|
|
(b) |
Payment of cost cover at an annual rate of [***] for the deferral period.
|
|
(c) |
Existing delivery financing structure to be retained, subject to repayment of amounts owing in respect of Tivar.
|
3. |
Var
|
|
(a) |
Var rig delivery to be deferred from March 2022 until 30 September 2022.
|
|
(b) |
Payment of cost cover at an annual rate of [***] for the deferral period.
|
|
(c) |
Existing delivery financing structure to be retained, subject to repayment of amounts owing in respect of Tivar.
|
4. |
Heidrun
|
|
(a) |
Heidrun delivery deferred from June 2020 until 30 September 2022.
|
|
(b) |
July 2020 through December 2021 opex costs of [***] to be paid to Keppel in four equal quarterly instalments in 2021.
|
|
(c) |
Delivery instalments of [***] each payable quarterly at 30 March, 30 June and 30 September of 2022.
|
5. |
Huldra
|
|
(a) |
Huldra delivery deferred from 15 October 2020 until 30 September 2022.
|
|
(b) |
July 2020 through December 2021 opex costs of [***] to be paid to Keppel in four equal quarterly instalments in 2021.
|
|
(c) |
Delivery instalments of [***] each payable quarterly at 30 March, 30 June and 30 September of 2022.
|
1. |
Hayfin Facility Agreement to be amended such that cash within the silo and generated by the silo can be utilised freely within the Midgard structure for operational and financial requirements.
|
2. |
Borr Drilling can use the restricted cash from the silo to partially make interest payments.
|
3. |
The funds used in the restricted account to be replenished in January 2021.
|
4. |
Consent to establish the Holdco structure.
|
5. |
No amortisation of principal until at least 1 January 2022.
|
THE SELLER
|
|
|
EXECUTED as a DEED
|
) |
[***]
|
by PPL SHIPYARD PTE LTD
|
) |
acting by
|
) | ||
) |
[***]
|
||
in the presence of:
|
[***]
|
) | |
) | |||
Signature of witness:
|
|||
Name of witness: | [***] | ||
|
|||
Occupation of witness: | In-House Lawyer | ||
|
|||
Address of witness: |
80 Tuas South Boulevard,
Singapore 637051
|
THE SELLER
|
|
EXECUTED as a DEED
|
) |
by PPL SHIPYARD PTE LTD
|
) |
acting by
|
) | |
|
) | |
in the presence of:
|
) | |
) | ||
Signature of witness:
|
|
|
Name of witness: |
|
|
|
||
Occupation of witness: |
|
|
|
||
Address of witness: |
|
THE OWNERS
|
|
EXECUTED as a DEED
|
) |
by BORR GALAR (UK) LIMITED
|
) |
acting by
|
) | [***] | |
Georgina E. Sousa
|
) | ||
in the presence of:
|
) | ||
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: |
Corporate Administrator
|
||
Address of witness: |
21 Highwood Lane
Paget PG 05, Bermuda
|
EXECUTED as a DEED
|
) | |
by BORR GERD INC.
|
) | [***] |
acting by
|
) | ||
) |
[***]
|
||
in the presence of:
|
) | ||
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: |
Lawyer
|
||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
EXECUTED as a DEED
|
) |
by BORR GERSEMI (UK) LIMITED
|
) |
acting by
|
) | [***] | |
) | |||
in the presence of:
|
|
) |
[***]
|
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: |
Lawyer
|
||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
EXECUTED as a DEED
|
) |
by BORR GRID (UK) LIMITED
|
) |
acting by
|
) | [***] | |
) | |||
in the presence of:
|
) |
[***]
|
|
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: |
Lawyer
|
||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
EXECUTED as a DEED
|
) |
by BORR GYME INC.
|
) |
acting by
|
) | [***] | |
) | |||
in the presence of:
|
) |
[***]
|
|
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: | Lawyer | ||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
EXECUTED as a DEED
|
) |
by BORR NATT INC.
|
) |
acting by
|
) | [***] | |
) | |||
in the presence of:
|
|
) |
[***]
|
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: |
Lawyer
|
||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
EXECUTED as a DEED
|
) |
by BORR GROA INC.
|
) |
acting by
|
) | [***] | |
) | |||
in the presence of:
|
) |
[***]
|
|
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: |
Lawyer
|
||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
EXECUTED as a DEED
|
) |
by BORR NJORD (UK) LIMITED
|
) |
acting by
|
) | [***] | |
) | |||
in the presence of:
|
) |
[***]
|
|
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: | Lawyer | ||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
EXECUTED as a DEED
|
) |
by BORR GUNNLOD INC.
|
) |
acting by
|
) | [***] | |
) | |||
in the presence of:
|
) |
[***]
|
|
) | |||
Signature of witness:
|
[***]
|
||
Name of witness: |
[***]
|
||
|
|||
Occupation of witness: |
Lawyer
|
||
Address of witness: |
Fridtjof Nansens pl. 7
Oslo, Norway
|
|
(a) |
The following additional definitions shall be added to Clause 1.1 (Definitions) of the
Facility Agreement:
|
|
(i) |
“Deferral Letters” means: (i) the side letter dated 15 April 2020, between the Borrower, the Rig Owners, HoldCo, the Ultimate Parent and the Agent; (ii) the
deferral letter dated 5 May 2020, between the Borrower, the Rig Owners, HoldCo, the Ultimate Parent and the Agent; (iii) the deferral extension letter dated 21 May 2020; and (iv) the deferral extension letter dated 25 May 2020 as extended
on 26 May 2020;
|
|
(ii) |
“Deferral Period” has the meaning given to such term in the Deferral Letters; and
|
|
(iii) |
“Deferred Amount” has the meaning given to such term in the Deferral Letters;”
|
|
(b) |
Clause 24.4(b) (Earnings and Requisition Compensation) of the Facility Agreement shall be
deleted and replaced with the following:
|
|
(c) |
The application of Clause 22.21 (Ultimate Parent Undertaking) of the Facility Agreement
will be suspended with respect to payments made under Clause 24.4(b)(iii), such that the Ultimate Parent is not required to pre-fund amounts to be paid under that Clause 24.4(b)(iii) and each relevant Account Holder may make payments under
that Clause 24.4(b)(iii) from amounts standing to the credit of the relevant Account irrespective of whether those amounts have been pre-funded by way of a Fresh Capital Injection, as contemplated in Clause 22.21; and
|
|
(d) |
Clause 24.5 (Minimum Liquidity Account) shall be deleted and replaced with the following:
|
|
(a) |
“subject to Clause 24.5(b), the Minimum Liquidity Account shall be a blocked account and the Account Holder shall not be permitted to withdraw any sums from the
Minimum Liquidity Account without the prior written consent of the Agent (acting on the instructions of the Majority Lenders);
|
|
(b) |
notwithstanding any other provision of any Finance Document to the contrary, the Borrower acknowledges and agrees that:
|
|
(i) |
if the Deferred Amount is paid in full to the Agent for distribution to the Lenders on or before the expiry of the Deferral Period the Agent shall, at the
request of the Borrower, consent to the withdrawal of all amounts standing to the credit of the Minimum Liquidity Account for transfer to the Borrower or any Rig Owner; and
|
|
(ii) |
the requirement to maintain an Off Hire Buffer Amount under Clause 20.1 (Off Hire Buffer Amount) in the Minimum Liquidity Account shall be suspended until 3
January 2021, provided that such suspension shall only apply in the event that: (1) any drawings from the Minimum Liquidity Account have been applied in payment of all or part of the Deferred Amount pursuant to paragraph (i) above only; and
(2) any analogous provisions the Bank Finance Facilities and Shipyard Finance Facilities are suspended for not less than the same period and on no more favourable terms. The Borrower shall (and each Obligor shall) ensure that on and from 4
January 2021, the amount standing to the credit of the Minimum Liquidity Account shall not be less than is required pursuant to Clause 20.1 (Off Hire Buffer Amount).
|
|
(e) |
The following representation shall be added to Clause 18 (Representations and warranties)
as a new Clause 18.32:
|
|
(f) |
The following additional information undertakings shall be added to Clause 19.5 (Information:
miscellaneous):
|
|
(e) |
“promptly on request and in any event on a monthly basis, up to date copies of the: (i) IADC specifications in respect of each Rig; and (ii) the asset transfer
register and print out of the inventory register from the maintenance system for each Rig as provided to the Agent on 20 May 2020;
|
|
(f) |
within 15 Business Days of the end of each Month, providing to the Agent monthly operational and financial reports for each Rig with details of uptime, revenue,
detailed cost breakdown, cash receipts and disbursements;
|
|
(g) |
provide to the Agent the detailed quarterly budget (including, without limitation, profit and loss and cashflow forecast for each Rig) for the relevant calendar
year and including (but not limited to) details of operational key performance indicators, a measure of the non-productive time rate on a per Rig quarterly basis, cash earnings per Rig on a quarterly basis, and percentage earnings per Rig
per month and any updates to such budget as the Borrower otherwise prepares;
|
|
(h) |
any confirmatory security over each BOP as the Agent may reasonably require to be provided within 15 Business Days following the date of the request (together
with corporate approval documentation and legal opinions to the satisfaction of the Agent).
|
|
(g) |
The following additional general undertaking shall be added to Clause 21 (General undertakings):
|
|
(h) |
The following additional general undertaking shall be added to Clause 21 (General undertakings):
|
|
(a) |
promptly and in any event within 5 Business Days of receipt of a notice from the Security Agent on behalf of the Finance Parties confirming that it has
exercised its rights under the Security Documents in respect of any of the Rigs following the occurrence of an Event of Default which is continuing:
|
|
(i) |
give notice to any or all of IFS, Eyeshare, IFS Consulting, IFS AMS and CEVA notifying them that they are each authorised to cooperate with the Security Agent
to facilitate the creation of a replica IFS system and to facilitate any other actions ancillary to the foregoing, should the Security Agent or its nominee require an IFS licence to operate any or all of the Rigs; and
|
|
(ii) |
use best endeavours to engage, facilitate and cooperate (but not to pay any additional fees or licence payments) with any or all of IFS, Eyeshare, IFS
Consulting, IFS AMS and CEVA in respect of any additional requests they may have in connection with the foregoing; and
|
|
(b) |
promptly and in any event within 15 Business Days of a receipt of a notice from the Security Agent on behalf of the Finance Parties and subject to
confidentiality undertakings from the Security Agent and any consultant engaged to advise the Security Agent on Rig operational matters, establish and provide access to a secure data room containing operational procedures specific to each
of the Rigs (to be updated from time to time promptly following written request from the Security Agent), such access to be on a view-only basis unless and until the Security Agent on behalf of the Finance Parties has exercised its rights
under the Security Documents in respect of any of the Rigs following the occurrence of an Event of Default which is continuing. The password to enable download access to the documents in the data room will be held in escrow by external
legal counsel for the Security Agent on written terms that provide that legal counsel is not entitled to release the password unless and until it receives notice the Security Agent on behalf of the Finance Parties has exercised its rights
under the Security Documents in respect of any of the Rigs following the occurrence of an Event of Default which is continuing."
|
|
(i) |
Clause 22.6 (Removal of parts) shall be deleted and replaced with the following:
|
Contents
|
Page
|
|
1.
|
Definitions and interpretation
|
2
|
2.
|
Overriding principle
|
11
|
3.
|
Effective Date
|
11
|
4.
|
Amendments and supplements
|
13
|
5.
|
Savings provisions
|
28
|
6.
|
Application of proceeds
|
31
|
7.
|
Indemnities, costs and expenses
|
35
|
8.
|
Representations
|
37
|
9.
|
Information undertakings
|
41
|
10.
|
General undertakings
|
45
|
11.
|
Events of Default
|
46
|
12.
|
Changes to the Parties
|
50
|
13.
|
Notices
|
50
|
14.
|
Partial invalidity
|
53
|
15.
|
Remedies, rights and waivers
|
53
|
16.
|
Counterparts
|
54
|
17.
|
Governing law
|
54
|
18.
|
Enforcement
|
54
|
Schedule 1 List of documents
|
57
|
|
Schedule 2 Framework Deed Term Sheet summary
|
62
|
|
Schedule 3 Conditions precedent and conditions subsequent
|
64
|
(1) |
BORR DRILLING LIMITED, a company incorporated under the laws of Bermuda with Company No. 51741 and having its registered address at Golar Management (Bermuda) Ltd. S.E. Pearman Building, 2nd
Floor, 9 Par-la-Ville Road, Hamilton HM11 Bermuda, as the parent (the "Parent");
|
(2) |
the Subsidiaries of the Parent listed in Schedule 1 (List of documents) as "Purchasers", as the purchasers (the "Purchasers");
|
(3) |
the Subsidiaries of the Parent listed in Schedule 1 (List of documents) as "Debtors", as the debtors (the "Debtors");
|
(4) |
KEPPEL FELS LIMITED, a company incorporated under the laws of Singapore with UEN 196700147N and having its registered address at 50 Gul Road Singapore 629351, as the builder (the "Builder"); and
|
(5) |
OFFSHORE PARTNERS PTE. LTD., a company incorporated under the laws of Singapore with UEN 200917024M and having its registered address at 50 Gul Road Singapore 629351, as the creditor (the "Creditor").
|
(A) |
Each Party has entered into one or more Original Documents.
|
(B) |
The Original Obligors have requested the Creditor Parties to agree to amend and supplement the terms of the Original Documents in accordance with the terms and conditions of this Deed in order to consummate the Equity Raise. The
amendments and supplements to the Original Documents in accordance with the terms and conditions of this Deed and the Equity Raise are a part of series of cross-conditional agreements with various stakeholders of the Group (including the
Creditor Parties) which, as a whole, will improve the Group's and each Obligor's liquidity and its financial stability in the period following the Effective Date.
|
(C) |
The Parties have entered into this Deed to amend and supplement the Original Documents in accordance with the terms and conditions of this Deed.
|
(D) |
Each Obligor (after giving due consideration to the terms and conditions of the Relevant Documents and satisfying itself that there are reasonable grounds for believing that the execution by it of this Deed will benefit it) is
satisfied that entering into this Deed and the other Relevant Documents to which it is a party is for the purposes and to the benefit of itself and its business.
|
(E) |
The guidelines underpinning the amendments and supplements contemplated in this Deed, pursuant to a proposal dated 20 May 2020 prepared by the Creditor Parties and sent to the Parent (the "Framework
Deed Term Sheet"), are summarized in Schedule 2 (Framework Deed Term Sheet summary). The Parties intend to implement the guidelines of the Framework Deed Term Sheet (as the same may have
been further supplemented and negotiated between the Parties) pursuant to the corresponding Clauses referred to in the table set out in Schedule 2 (Framework Deed Term Sheet summary), which Clauses
shall for the avoidance of doubt supersede the guidelines set out in Schedule 2 (Framework Deed Term Sheet summary) and the Framework Deed Term Sheet.
|
1. |
Definitions and interpretation
|
1.1 |
Definitions
|
|
(a) |
an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or
|
|
(b) |
in relation to anything which will be fully or partly prohibited or restricted by law or regulation if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification,
the expiry of that period without intervention or action.
|
|
(a) |
prior to the Effective Date, any Original Construction Contract; or
|
|
(b) |
on and after the Effective Date, any Amended Construction Contract.
"Construction Contract (Type 1)" means:
|
|
(a) |
prior to the Effective Date:
|
|
(i) |
the Original Construction Contract (B380 HULDRA); or
|
|
(ii) |
the Original Construction Contract (B381 HEIDRUN); or
|
|
(b) |
on and after the Effective Date:
|
|
(i) |
the Amended Construction Contract (B380 HULDRA); or
|
(ii)
|
the Amended Construction Contract (B381 HEIDRUN).
"Construction Contract (Type 2)" means:
|
|
(a) |
prior to the Effective Date:
|
|
(i) |
the Original Construction Contract (B366 TIVAR);
|
|
(ii) |
the Original Construction Contract (B367 VALE); or
|
|
(iii) |
the Original Construction Contract (B368 VAR); or
|
|
(b) |
on and after the Effective Date:
|
|
(i) |
the Amended Construction Contract (B366 TIVAR);
|
|
(ii) |
the Amended Construction Contract (B367 VALE); or
|
|
(iii) |
the Amended Construction Contract (B368 VAR).
|
|
(a) |
prior to the Effective Date, any Original Credit Agreement;
|
|
(b) |
on and after the Effective Date, any Amended Credit Agreement; or
|
|
(c) |
any New Credit Agreement.
|
|
(a) |
any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the last day of the Security Period or which are otherwise classified as borrowings under the Accounting Principles; and
|
|
(b) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing or otherwise classified as
borrowings under the Accounting Principles.
|
|
(a) |
the Parent;
|
|
(b) |
each Debtor which is party to:
|
|
(i) |
the Original Credit Agreement (B358 HILD) or the Amended Credit Agreement (B358 HILD);
|
|
(ii) |
the Original Credit Agreement (B360 HEIMDAL) or the Amended Credit Agreement (B360 HEIMDAL); or
|
|
(iii) |
the Original Credit Agreement (B361 HERMOD) or the Amended Credit Agreement (B361 HERMOD); or
|
|
(c) |
any Obligor which has taken delivery of a Vessel pursuant to any Construction Contract.
|
|
(a) |
the Framework Deed Term Sheet (as defined in the recitals above); or
|
|
(b) |
any "secured term loan facility summary of indicative terms and conditions" signed by, amongst others, the Creditor, the Parent, and certain Original Obligors in relation to the financing of any of the Vessels.
|
|
(a) |
the business, operations, property or condition (financial or otherwise) of the Group taken as a whole or any Obligor;
|
|
(b) |
the ability of any Obligor to perform its obligations under the Relevant Documents to which it is a party;
|
|
(c) |
the validity, legality or enforceability of any Relevant Document, or the rights or remedies of any Creditor Party under, the Relevant Documents; or
|
|
(d) |
the validity, legality or enforceability of any Security expressed to be created under any Relevant Document or the priority and ranking of any of such Security or the rights or remedies of any Creditor Party under any of the Relevant
Documents.
|
|
(a) |
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business
Day; and
|
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.
|
|
(a) |
any Original Obligor;
|
|
(b) |
any Security Provider as defined in any Original Credit Agreement;
|
|
(c) |
any other person which is party to any Relevant Document (other than a Creditor Party); or
|
|
(d) |
any other person who has agreed in writing to be bound by the provisions of this Deed as an Obligor and whose agreement has been accepted in writing by the Creditor Parties and the Parent as an Obligor.
|
|
(a) |
the Original Construction Contract (B380 HULDRA);
|
|
(b) |
the Original Construction Contract (B381 HEIDRUN);
|
|
(c) |
the Original Construction Contract (B366 TIVAR);
|
|
(d) |
the Original Construction Contract (B367 VALE); or
|
|
(e) |
the Original Construction Contract (B368 VAR).
|
|
(a) |
the Original Credit Agreement (B358 HILD);
|
|
(b) |
the Original Credit Agreement (B360 HEIMDAL);
|
|
(c) |
the Original Credit Agreement (B361 HERMOD);
|
|
(d) |
the Original Credit Agreement (B380 HULDRA); or
|
|
(e) |
the Original Credit Agreement (B381 HEIDRUN).
|
|
(a) |
any Original Construction Contract;
|
|
(b) |
any Buyer Parent Guarantee (as defined in any Original Construction Contract);
|
|
(c) |
any Borr Guarantee (as defined in any Original Construction Contract);
|
|
(d) |
any Original Credit Agreement; or
|
|
(e) |
any Finance Document (as defined in any Original Credit Agreement).
|
|
(a) |
the refund guarantee originally dated 18 November 2013 granted by CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, SINGAPORE BRANCH to TRANSOCEAN OFFSHORE DEEPWATER HOLDINGS LIMITED in respect of the Original Construction Contract (B366
TIVAR), as subsequently novated to BORR TIVAR INC.;
|
|
(b) |
the refund guarantee originally dated 18 November 2013 granted by CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, SINGAPORE BRANCH to TRANSOCEAN OFFSHORE DEEPWATER HOLDINGS LIMITED in respect of the Original Construction Contract (B367
VALE), as subsequently novated to BORR VALE INC.; and
|
|
(c) |
the refund guarantee originally dated 18 November 2013 granted by CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, SINGAPORE BRANCH to TRANSOCEAN OFFSHORE DEEPWATER HOLDINGS LIMITED in respect of the Original Construction Contract (B368
VAR), as subsequently novated to BORR VAR INC..
|
|
(a) |
prior to the Effective Date, any Original Document;
|
|
(b) |
on and after the Effective Date, any Amended Document;
|
|
(c) |
any New Credit Agreement; or
|
|
(d) |
any Finance Document (as defined in any New Credit Agreement).
|
|
(a) |
its Original Jurisdiction;
|
|
(b) |
any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;
|
|
(c) |
any jurisdiction where it conducts its business; and
|
|
(d) |
the jurisdiction whose laws govern the perfection of any of the Relevant Documents entered into by it.
|
|
(a) |
the Creditor Parties owe no further liabilities, obligations and undertakings under or pursuant to, and no claims whatsoever under or in respect or any Construction Contract in each case to any Obligor; and
|
|
(b) |
there is no outstanding Loan Facility (as defined in any Credit Agreement) or commitment under any Credit Agreement and the Creditor Parties are under no further obligation to provide financial accommodation to any Obligor under any
Credit Agreement.
|
|
(a) |
which is controlled, directly or indirectly, by the first mentioned company or corporation;
|
|
(b) |
more than half the issued equity share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or
|
|
(c) |
which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,
|
1.2 |
Construction and interpretation
|
(a) |
Unless a contrary indication appears, any reference in the Relevant Documents to:
|
|
(ii) |
"assets" includes present and future properties, revenues and rights of every description;
|
|
(v) |
"including" shall be construed as "including without limitation" (and cognate expressions shall be construed similarly);
|
|
(vi) |
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
|
(vii) |
an "insolvency", "winding-up" or "insolvency proceeding" in relation to any person shall be construed to include:
|
|
(A) |
any corporate action, legal proceeding or other procedure or step described in Clause 11.7 (Insolvency proceedings) in relation to that person; and
|
|
(B) |
any of the circumstances described in Clause 11.6 (Insolvency) in relation to that person,
|
|
(x) |
a provision of law or regulation is a reference to that provision as amended or re- enacted; and
|
|
(xi) |
a time of day is a reference to Singapore time unless the time of another jurisdiction is stated or implied.
|
(f) |
In this Deed, unless a contrary indication appears, words importing the plural include the singular and vice versa, and words importing a gender include every gender.
|
1.3 |
Third party rights
|
(a) |
Unless expressly provided to the contrary in this Deed, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit of any term of this Deed.
|
(b) |
Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
|
(c) |
Any Receiver or Delegate may enforce and/or enjoy the benefit of any term of this Deed which expressly confers rights on it pursuant to the Third Parties Act.
|
1.4 |
Entire agreement
|
2. |
Overriding principle
|
3. |
Effective Date
|
3.1 |
Conditions precedent
|
3.2 |
Conditions subsequent
|
3.3 |
Waiver of conditions precedent and conditions subsequent
|
3.4 |
Form and content
|
(a) |
be in form and substance reasonably acceptable to the Creditor Parties;
|
(b) |
(to the extent applicable) be in full force and effect and consummated in accordance with all applicable laws;
|
(c) |
if it is not in English, and if so required by the Creditor Parties, be accompanied by a certified English translation; and
|
(d) |
if required by the Creditor Parties, be certified, notarised, legalised or attested in a manner acceptable to the Creditor Parties (acting reasonably).
|
3.5 |
Long-stop date
|
4. |
Amendments and supplements
|
4.1 |
B366 TIVAR
|
(a) |
Deferred delivery: article VIII.1 of the Original Construction Contract (B366 TIVAR) shall be amended and restated in the following manner:
|
(c) |
Holding costs: the following shall be incorporated as a new article XI.2(a)(iv) of the Original Construction Contract (B366 TIVAR):
|
(d) |
Cost cover: the following shall be incorporated as a new article XI.2(a)(v) of the Original Construction Contract (B366 TIVAR):
|
4.2 |
B367 VALE
|
(a) |
Deferred delivery: article VIII.1 of the Original Construction Contract (B367 VALE) shall be amended and restated in the following manner:
|
|
(i) |
a payment of Ten Million United States Dollars (USD10,000,000) shall be paid by the relevant Purchaser to the Builder on the delivery date of the relevant Vessel and such payment shall be referred to and defined in that Construction
Contract as the "third instalment"; and
|
|
(ii) |
a payment of One Hundred Thirty Seven million Four Hundred and Six Thousand United States Dollars (USD137,406,000) plus or minus any increase or decrease due to modification and/or adjustment, if any, arising prior to the delivery of
the relevant Vessel under articles III and VI of that Construction Contract of the CONTRACT PRICE under that Construction Contract, shall be paid by the relevant Purchaser to the Builder on the delivery date of the relevant Vessel, and
such payment shall be referred to and defined in that Construction Contract as the "fourth instalment",
|
|
(A) |
the payment of the first instalment, second instalment, and third instalment shall be made in accordance with article XI.4(a)(i) of that Construction Contract;
|
|
(B) |
the payment of the fourth instalment shall be made in accordance with article XI.4(a)(ii) of that Construction Contract; and
|
|
(C) |
article XII.1(a)(i) of that Construction Contract shall be amended such that the relevant Purchaser shall be deemed to be in default under that Construction Contract if any of the first instalment, second instalment, third instalment
or fourth instalment are not paid to the Builder within the respective due date of such instalment.
|
(d) |
Cost cover (third instalment): the following shall be incorporated as a new article XI.2(a)(v) of the Original Construction Contract (B367 VALE):
|
(e) |
Cost cover (fourth instalment): the following shall be incorporated as a new article XI.2(a)(v) of the Original Construction Contract (B367 VALE):
|
4.3 |
B368 VAR
|
(a) |
Deferred delivery: article VIII.1 of the Original Construction Contract (B368 VAR) shall be amended and restated in the following manner:
|
|
(A) |
the payment of the first instalment, second instalment, and third instalment shall be made in accordance with article XI.4(a)(i) of that Construction Contract;
|
|
(B) |
the payment of the fourth instalment shall be made in accordance with article XI.4(a)(ii) of that Construction Contract; and
|
(d) |
Cost cover (third instalment): the following shall be incorporated as a new article XI.2(a)(v) of the Original Construction Contract (B368 VAR):
|
(e) |
Cost cover (fourth instalment): the following shall be incorporated as a new article XI.2(a)(v) of the Original Construction Contract (B368 VAR):
|
4.4 |
B380 HULDRA
|
(a) |
Deferred delivery: article 8.1 of the Original Construction Contract (B380 HULDRA) shall be amended and restated in the following manner:
|
(b) |
Credit financing: the following amendments shall be made to the loan facility(ies) being made available under the Original Credit Agreement (B380 HULDRA):
|
|
(i) |
Reduction of existing loan facility: the amount of the existing loan facility to be made available to the relevant Debtor under that Credit Agreement shall be reduced to US$73,150,000,
and that Credit Agreement shall be amended to the extent necessary or desirable to give effect to the purpose and intent of such reduction, including the following amendments:
|
|
(A) |
the definition of the term "Commitment" in that Credit Agreement shall be amended and restated in the following manner:
|
|
(B) |
clause 2.1 of that Credit Agreement shall be amended and restated in the following manner:
|
|
(ii) |
New interest free loan facility: the Creditor shall make available to the relevant Debtor an additional interest free loan in the aggregate principal amount of up to US$4,500,000 under
and subject to the provisions of that Credit Agreement and that Credit Agreement shall be logically amended to the extent necessary to give effect to the purpose and intent of the foregoing amendments, including the following amendments:
|
|
(A) |
the following shall be incorporated as a new clause 2.1A in that Credit Agreement:
|
|
(B) |
the definition of the term "Interest Rate" in that Credit Agreement shall be amended and restated in the following manner:
|
|
(a) |
LIBOR; and
|
|
(b) |
the relevant Margin.".
|
|
(C) |
the definition of the term "Loan" in that Credit Agreement shall be amended and restated in the following manner:
|
|
(D) |
the definition of the term "Loan Facility" in that Credit Agreement shall be amended and restated in the following manner:
|
|
(E) |
any partial prepayment of the Loans under that Credit Agreement shall be applied first towards prepayment of the Interest Bearing Loan Facility, and thereafter towards prepayment of the Interest Free Loan Facility.
|
(d) |
Principal payments: article 3.3 of the Original Construction Contract (B380 HULDRA) shall be amended and restated in the following manner:
|
|
3.3.1 |
an amount of US$4,410,000 shall be payable on 1 January 2022;
|
|
3.3.2 |
an amount of US$4,420,000 shall be payable on 1 April 2022;
|
|
3.3.3 |
an amount of US$4,420,000 shall be payable on 1 July 2022; and
|
|
3.3.4 |
an amount of US$73,150,000 plus US$4,500,000 (plus or minus any increase or decrease in the Rig Purchase Price pursuant to Article 4) shall be payable on the Delivery Date.".
|
(e) |
Non-payment of principal: article 11.1(a) of the Original Construction Contract (B380 HULDRA) shall be amended and restated in the following manner:
|
4.5 |
B381 HEIDRUN
|
(a) |
Deferred delivery: article 8.1 of the Original Construction Contract (B381 HEIDRUN) shall be amended and restated in the following manner:
|
(b) |
Credit financing: the following amendments shall be made to the loan facility(ies) being made available under the Original Credit Agreement (B381 HEIDRUN):
|
|
(A) |
the definition of the term "Commitment" in that Credit Agreement shall be amended and restated in the following manner:
|
|
(B) |
clause 2.1 of that Credit Agreement shall be amended and restated in the following manner:
|
|
(A) |
the following shall be incorporated as a new clause 2.1A in that Credit Agreement:
|
|
(B) |
the definition of the term "Interest Rate" in that Credit Agreement shall be amended and restated in the following manner:
|
|
(a) |
LIBOR; and
|
|
(b) |
the relevant Margin.".
|
|
(C) |
the definition of the term "Loan" in that Credit Agreement shall be amended and restated in the following manner:
|
|
(D) |
the definition of the term "Loan Facility" in that Credit Agreement shall be amended and restated in the following manner:
|
(d) |
Principal payments: article 3.3 of the Original Construction Contract (B381 HEIDRUN) shall be amended and restated in the following manner:
|
|
3.3.1 |
an amount of US$4,410,000 shall be payable on 1 January 2022;
|
|
3.3.2 |
an amount of US$4,420,000 shall be payable on 1 April 2022;
|
|
3.3.3 |
an amount of US$4,420,000 shall be payable on 1 July 2022; and
|
|
3.3.4 |
an amount of US$73,150,000 plus US$4,500,000 (plus or minus any increase or decrease in the Rig Purchase Price pursuant to Article 4) shall be payable on the Delivery Date.".
|
(e) |
Non-payment of principal: article 11.1(a) of the Original Construction Contract (B381 HEIDRUN) shall be amended and restated in the following manner:
|
4.6 |
B358 HILD, B360 HEIMDAL and B361 HERMOD
|
|
(ii) |
For the purposes of the foregoing, "Fair Market Value" means, in relation to a Vessel, the arithmetic average of the market value of such Vessel reflected in:
|
|
(A) |
a valuation obtained by the Parent and supplied to the Creditor within 10 Business Days after the Asset Transfer Date; and
|
|
(B) |
a valuation obtained by the Creditor and supplied to the Parent within 10 Business Days after the Asset Transfer Date; and
|
|
(1) |
addressed to the Creditor;
|
|
(2) |
issued by any of Artic Offshore Internal AS, Fernleys, Clarksons Valuations Limited, IHS or such other independent shipbroker or valuer which is agreed between the Parent and the Creditor;
|
|
(3) |
prepared on a desktop basis of a charter-free sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing seller and a willing buyer; and
|
|
(4) |
dated no earlier than the Asset Transfer Date.
|
(b) |
Maintenance of Vessel: Clause 9.3 (Maintenance Report) shall be incorporated into each Original Credit Agreement mutatis mutandis as a new clause 12.1(ddd).
|
4.7 |
Right to sell or charter
|
(b) |
sell the relevant Vessel to any person and apply the proceeds of such sale in accordance with the terms of the Builder and such Purchaser's mutual agreement.
|
4.8 |
Definition of "Framework Deed"
|
(a) |
The following shall be incorporated as defined term(s) in each Original Construction Contract:
|
(b) |
The following shall be incorporated as defined term(s) in each Original Credit Agreement:
|
4.9 |
Ancillary definitions and rules of interpretation
|
(a) |
The definition of the term "Finance Documents" in each Original Credit Agreement shall be amended and restated in the following manner:
|
(b) |
The following shall be incorporated as a new paragraph (g) in the definition of the term "Security Documents" in each Original Credit Agreement:
|
(c) |
The following shall be incorporated as a new paragraph (c) in clause 13.2 of each Original Credit Agreement:
|
(e) |
The definition of the term "LIBOR" in each Original Credit Agreement shall be amended and restated in the following manner:
|
(f) |
The following shall be incorporated as a defined term in each Original Credit Agreement:
|
5. |
Savings provisions
|
5.1 |
Continuing obligations
|
5.2 |
Confirmations
|
(a) |
Each Obligor hereby confirms, represents and warrants that:
|
(b) |
The Builder shall:
|
|
(ii) |
procure that:
|
|
(i) |
the completion of reasonably satisfactory legal and tax diligence as required by the Creditor Parties in connection with the incorporation of such a holding company;
|
|
(iv) |
no Material Adverse Effect occurring as a result of the transactions contemplated below,
|
|
(B) |
once established, such IHC shall execute and deliver to the Creditor Parties; amongst others:
|
|
(2) |
a deed of accession pursuant to which the IHC agrees to be bound by:
|
|
(A) |
the provisions of this Deed as an Obligor; and
|
|
(B) |
the provisions of this Deed and the other Relevant Documents as a Security Provider.
|
6. |
Application of proceeds
|
6.1 |
Order of application
|
(a) |
in discharging any sums owing to any Receiver or any Delegate;
|
(c) |
in payment or distribution to the Creditor Parties for application in accordance with Clause 6.2 (Partial payments);
|
(e) |
the balance, if any, in payment to the relevant Obligor.
|
6.2 |
Partial payments
|
|
(i) |
in or towards payment of any unpaid amount owing to any Receiver or any Delegate under the Relevant Documents; and
|
|
(ii) |
in or towards payment of any sum due but unpaid under the Relevant Documents at such time and in such order as the Creditor Parties (in their discretion) see fit.
|
(b) |
The Creditor Parties may vary the order set out in paragraphs (a)(i) to (a)(ii) above.
|
(c) |
Subject to Clause 6.11 (Permitted Disposal), paragraphs (a) and (b) above will override any appropriation made, or directed to be applied in some other manner, by an Obligor.
|
6.3 |
Guarantee and indemnity
|
(a) |
guarantees to each Creditor Party punctual performance by each other Obligor of all that Obligor's obligations under the Relevant Documents;
|
6.4 |
Continuing guarantee
|
6.5 |
Reinstatement
|
6.6 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any Obligor, any member of the Group or any other person;
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Obligor or any other person;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Relevant Document or any other document or security;
|
(g) |
any intermediate payment or discharge of any of the Secured Liabilities in whole or in part;
|
(h) |
any insolvency proceedings, amalgamation, reconstruction or reorganization of any Obligor or any other person; or
|
(i) |
this Deed or any other Relevant Document not being executed by or binding upon any other party.
|
6.7 |
Immediate recourse
|
6.8 |
Appropriations
|
(b) |
hold in a suspense account any moneys received from any Guarantor or on account of that Guarantor's liability under this Clause 6.
|
6.9 |
Deferral of Guarantors' rights
|
|
(i) |
to be indemnified by an Obligor or any other person;
|
|
(ii) |
to claim any contribution from any other guarantor of or provider of Security for any person's obligations under the Relevant Documents;
|
|
(v) |
to exercise any right of set-off against any Obligor; and/or
|
|
(vi) |
to claim or prove as a creditor of any Obligor in competition with any Creditor Party.
|
6.10 |
Additional security
|
6.11 |
Permitted Disposal
|
7. |
Indemnities, costs and expenses
|
7.1 |
Other indemnities
|
(a) |
the occurrence of any Event of Default;
|
(b) |
any information produced, provided or approved by or on behalf of an Obligor being or being alleged to be misleading and/or deceptive in any respect;
|
(d) |
a failure by an Obligor to pay any amount due under a Relevant Document on its due date or in the relevant currency.
|
7.2 |
Indemnity in relation to enforcement
|
|
(i) |
acting or relying on any communication, notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
|
(ii) |
the taking, holding, protection or enforcement of the Transaction Security;
|
|
(iii) |
the exercise of any of the rights, powers, discretions and remedies vested in that Creditor Party, each Receiver and Delegate by the Relevant Documents or by law;
|
|
(iv) |
instructing lawyers, accountants, Tax advisers, surveyors or other professional advisers or experts as permitted under any Relevant Document; or
|
7.3 |
Transaction expenses
|
(a) |
this Deed and any other documents referred to in this Deed or in a Relevant Document; and
|
(b) |
any other Relevant Documents executed after the date of this Deed,
|
7.4 |
Amendment costs
|
7.5 |
Enforcement and preservation costs
|
7.6 |
Other Creditor Party expenses
|
7.7 |
Indemnities separate
|
(a) |
constitute a separate and independent obligation from the other obligations in that document or any other Relevant Document;
|
(b) |
give rise to a separate and independent cause of action;
|
(c) |
apply irrespective of any indulgence granted by any Creditor Party;
|
(d) |
continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of the Secured Liabilities or any other judgment or order; and
|
(e) |
apply whether or not any claim under it relates to any matter disclosed by any Obligor or otherwise known to any Creditor Party.
|
8. |
Representations
|
8.1 |
Status
|
(a) |
It is a company or, as the case may be, a corporation, duly incorporated and validly existing and, where applicable, in good standing under the laws of its jurisdiction of incorporation.
|
(b) |
It and each of its respective Subsidiaries (if any) has the power to own its assets and carry on its business as it is being conducted.
|
8.2 |
Binding obligations
|
(a) |
The obligations expressed to be assumed by it in each Relevant Document to which it is a party are legal, valid, binding and enforceable.
|
8.3 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
its constitutional documents; or
|
(c) |
any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (howsoever described) under any such agreement or instrument.
|
8.4 |
Power and authority
|
(b) |
No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Relevant Documents to which it is a party.
|
8.5 |
Validity and admissibility in evidence
|
(a) |
to enable it to lawfully enter into, exercise its rights and comply with its obligations in the Relevant Documents to which it is a party;
|
(b) |
to make the Relevant Documents to which it is a party admissible in evidence in its Relevant Jurisdictions;
|
(c) |
for it to carry on its business, and which are material; and
|
8.6 |
Governing law and enforcement
|
(a) |
The choice of the governing law of the Relevant Documents which it is party to will be recognised and enforced in its Relevant Jurisdictions.
|
8.7 |
Insolvency
|
(a) |
corporate action, legal proceeding or other procedure or step described in Clause 11.7 (Insolvency proceedings); and
|
(b) |
creditor's process described in Clause 11.8 (Creditors' process),
|
8.8 |
No filing or stamp Taxes
|
8.9 |
No immunity
|
8.10 |
No Default
|
(a) |
No Default is continuing or might reasonably be expected to result from its entry into, the performance of, or any transaction contemplated by, any Relevant Document to which it is a party.
|
8.11 |
No misleading information
|
8.12 |
Financial statements
|
8.13 |
No proceedings pending or threatened
|
(b) |
No judgment or order of a court, arbitral body or agency which is reasonably likely to have a Material Adverse Effect has been made against it.
|
8.14 |
Repetition
|
(a) |
Each of the representations set out in this Clause 8 (save for this Clause 8.14) are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:
|
|
(i) |
the date on which the Creditor Parties are or would have been obliged to provide a notification to the Obligors' Agent pursuant to paragraph (b) of Clause 3.1 (Conditions precedent);
|
|
(ii) |
the date of this Deed; and
|
|
(i) |
the date on which each set of financial statements of each Reporting Entity are supplied to any Creditor Party; and
|
|
(ii) |
the date of each Maintenance Report and the date on which each Maintenance Report is supplied to any Creditor Party.
|
9. |
Information undertakings
|
9.1 |
Financial statements
|
(b) |
Each Reporting Entity shall supply to the Creditor Parties:
|
|
(B) |
the audited consolidated financial statements of the Parent for that financial year; and
|
|
(A) |
the unaudited unconsolidated financial statements of each Debtor and each Purchaser for that financial quarter; and
|
|
(B) |
the unaudited consolidated financial statements of the Parent for that financial quarter; and
|
(c) |
The provisions of this Clause 9.1 shall supersede and replace the provisions of paragraphs (a)(i) and (a)(ii) of clause 12.1 in each Credit Agreement.
|
9.2 |
Requirements as to financial statements
|
(a) |
include a balance sheet, profit and loss account and (in the case of the Parent only) cashflow statement.
|
(b) |
(in the case of any financial statements for any financial years) be audited by its auditors;
|
9.3 |
Maintenance Report
|
(b) |
Each Reporting Entity shall ensure that its Maintenance Report for each financial quarter:
|
|
(i) |
includes:
|
|
(ii) |
has been approved by a director of the relevant Reporting Entity.
|
9.4 |
Information: miscellaneous
|
(a) |
at the same time as they are dispatched, copies of all documents dispatched by any Obligor to its shareholders generally (or any class of them) or its creditors generally (or any class of them);
|
(e) |
promptly, such information as any Creditor Party may reasonably require about the Vessels or the Charged Assets and compliance of the Obligors with the terms of any Relevant Document,
|
9.5 |
Notification of certain events
|
(a) |
Each Obligor shall notify the Creditor Parties of any Default (and in each case, the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
|
9.6 |
Notification of fundraising
|
(a) |
The Parent shall promptly notify the Creditor Parties if:
|
|
(i) |
the Parent or any member of the Group incurs or will incur any Financial Indebtedness; or
|
(c) |
Paragraphs (a) and (b) above shall not apply to:
|
|
(i) |
the Equity Raise;
|
|
(ii) |
any transaction entered into by any member of the Group solely with any another member of the Group;
|
|
(iii) |
any Financial Indebtedness incurred pursuant to any arrangements in existence and in force on the date of this Deed;
|
|
(iv) |
any transaction undertaken pursuant to any management, board or employee incentive or remuneration programme or similar; or
|
|
(v) |
any transaction the principal amount or the net consideration receivable of which does not exceed US$10,000,000 (or its equivalent in other currencies).
|
10. |
General undertakings
|
10.1 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Creditor Parties of,
|
|
(i) |
enable it to perform its obligations under the Relevant Documents to which it is a party;
|
|
(ii) |
ensure the legality, validity, enforceability or admissibility in evidence of the Relevant Documents to which it is a party; and
|
|
(iii) |
carry on its business where failure to do so has or is reasonably likely to have a Material Adverse Effect.
|
10.2 |
Further assurance
|
|
(iii) |
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security to which it is a party.
|
11. |
Events of Default
|
11.1 |
Non-payment
|
11.2 |
Material undertakings
|
(a) |
paragraph (c) of Clause 3.1 (Conditions precedent);
|
(b) |
Clause 3.2 (Conditions subsequent); and
|
(c) |
Clause 9.5 (Notification of certain events).
|
11.3 |
Other obligations
|
(a) |
Any Obligor does not comply with any provision of this Deed (other than those referred to in Clause 11.1 (Non-payment) and Clause 11.2 (Material undertakings)).
|
(b) |
An event of default or termination event (in each case howsoever expressed, described or defined) occurs and is continuing under any Relevant Document.
|
11.4 |
Misrepresentation
|
11.5 |
Cross default
|
(a) |
Any Financial Indebtedness of any Obligor is not paid when due nor within any applicable grace period.
|
(b) |
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).
|
11.6 |
Insolvency
|
(b) |
The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c) |
A moratorium is declared in respect of any indebtedness of any Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
11.7 |
Insolvency proceedings
|
(a) |
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
|
(ii) |
a composition, compromise, assignment or arrangement with any creditor of any Obligor, or any assignment for the benefit of creditors generally of any Obligor or a class of such creditors;
|
|
(iv) |
enforcement of any Security over any assets of any Obligor,
|
(b) |
Paragraph (a) shall not apply to:
|
|
(i) |
any arrangements contemplated in paragraph 2.2 (Key creditor consents) of Part 1 (Conditions precedent) of Schedule 3 (Conditions
precedent and conditions subsequent); or
|
|
(ii) |
any legal proceeding which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
|
11.8 |
Creditors' process
|
(a) |
Any expropriation, attachment, sequestration, distress, execution or any analogous event affects all or any material part of the assets of any Obligor.
|
(b) |
Paragraph (a) shall not apply to any legal proceeding which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
|
11.9 |
Material adverse change
|
11.10 |
Acceleration
|
(a) |
by notice to the Obligors' Agent on behalf of the Obligors:
|
|
(i) |
exercise all or any of its respective rights, remedies, powers or discretions under:
|
|
(A) |
clause 13.2 (Declarations) of each Credit Agreement;
|
|
(B) |
article 11.2 of each Construction Contract (Type 1); or
|
|
(C) |
article XII.2 of each Construction Contract (Type 2),
|
|
(v) |
declare that all or part of a Loan (as defined in any Credit Agreement) be payable on demand, whereupon they shall immediately become payable on demand by the relevant Creditor Party; and/or
|
12. |
Changes to the Parties
|
12.1 |
Assignments and transfers
|
(a) |
No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of this Deed or any Relevant Document.
|
12.2 |
Resignation of an Obligor
|
(a) |
The Parent may request that any Obligor ceases to be an Obligor by delivering such a request in writing to the Creditors.
|
|
(i) |
no Default is continuing; and
|
13. |
Notices
|
13.1 |
Obligors' Agent
|
|
(ii) |
each Creditor Party to give any notice, demand or other communication to that Obligor pursuant to the Relevant Documents to the Parent,
|
13.2 |
Communications in writing
|
(a) |
shall be made in writing;
|
(b) |
in the case of a notice by an Obligor, must be signed by an authorised signatory of the sender (directly or with a facsimile signature); and
|
(c) |
unless otherwise stated, may be made or delivered by letter or electronic mail.
|
13.3 |
Addresses
|
13.4 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Relevant Documents will be effective:
|
|
(i) |
if by way of electronic mail, only when actually received (or made available) in readable form; or
|
|
(ii) |
if by way of letter, only when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,
|
(c) |
Any communication or document made or delivered to the Obligors' Agent in accordance with this Clause 13.4 will be deemed to have been made or delivered to each of the Obligors.
|
13.5 |
Notification of address
|
13.6 |
Reliance
|
(b) |
Each Party must take reasonable care to ensure that no forged, false or unauthorised notices are sent to another Party.
|
13.7 |
English language
|
(a) |
Any notice given under or in connection with any Relevant Document must be in English.
|
(b) |
All other documents provided under or in connection with any Relevant Document must be:
|
|
(i) |
in English; or
|
13.8 |
Publicity
|
14. |
Partial invalidity
|
15. |
Remedies, rights and waivers
|
15.1 |
Exercise of rights
|
15.2 |
Creditor Parties' rights and obligations
|
(c) |
A Creditor Party may separately enforce its rights under or in connection with the Relevant Documents.
|
15.3 |
Amendments and waivers
|
(a) |
Any term of this Deed may be amended or waived only with the consent of the Creditor Parties and the Obligors.
|
16. |
Counterparts
|
17. |
Governing law
|
18. |
Enforcement
|
18.1 |
Jurisdiction of English courts
|
(b) |
The Parties agree that the English courts are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
18.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England):
|
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(c) |
Each Obligor expressly agrees and consents to the provisions of this Clause 18.2.
|
18.3 |
Waiver of immunities
|
(a) |
suit;
|
(b) |
jurisdiction of any court;
|
(c) |
relief by way of injunction or order for specific performance or recovery of property;
|
(d) |
attachment of its assets (whether before or after judgment); and
|
Vessel
|
Construction Contract
|
Purchaser
|
Credit Agreement
|
Debtor
|
Hull No. B358
"HILD"
|
Not relevant
|
Not relevant
|
The US$ 86,400,000 credit agreement in relation to the
vessel "HILD" originally dated 16 May 2018, as amended by the amendment agreement dated 15 October 2019, and entered into between the Creditor and the Debtor listed in the corresponding column of this table.
(the "Original Credit Agreement (B358 HILD)", and as amended and supplemented by this Deed, the "Amended Credit
Agreement (B358 HILD)")
|
Borr Hild Inc. (formerly known as Borr Jack-Up XXVII Inc.), a company incorporated under the laws of the Marshall Islands with registration number 92787 and having its registered address at Trust Company Complex, Ajeltake Island,
Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
Hull No. B360
"HEIMDAL"
|
Not relevant
|
Not relevant
|
The US$ 86,400,000 credit agreement in relation to the
vessel "HEIMDAL" originally dated 16 May 2018, as amended by the amendment agreement dated 15 January 2020, and entered into between the Creditor and the Debtor listed in the corresponding column of this table.
(the "Original Credit Agreement (B360 HEIMDAL)", and as amended and supplemented by this Deed, the "Amended Credit Agreement (B360 HEIMDAL)")
|
Borr Heimdal Inc. (formerly known as Borr Jack-Up XXVIII Inc.), a company incorporated under the laws of the Marshall Islands with registration number 92789 and having its registered address at Trust Company Complex, Ajeltake
Island, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
Hull No. B361
"HERMOD"
|
Not relevant
|
Not relevant
|
The US$ 86,400,000 credit agreement in relation to the vessel "HERMOD" originally dated 16 May 2018, as amended by the amendment agreement dated 15 October 2019, and entered into between the Creditor and the Debtor listed in the
corresponding column of this table.
(the "Original Credit Agreement (B361 HERMOD)",
and as amended and supplemented by this Deed, the
"Amended Credit Agreement (B361 HERMOD)")
|
Borr Hermod Inc. (formerly known as Borr Jack-Up XXIX Inc.), a company incorporated under the laws of the Marshall Islands with registration number 92788 and having its registered address at Trust Company Complex, Ajeltake
Island, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
Hull No. B380
"HULDRA"
|
The construction contract in relation to the vessel "HULDRA" originally dated 16 May 2018, as
amended and restated by the amended and restated
construction contract dated 6 June 2018, and entered into between the Builder and the Purchaser listed in the
corresponding column of this table.
(the "Original Construction Contract (B380 HULDRA)", and as amended and supplemented
by this Deed, the "Amended Construction Contract (B380 HULDRA)")
|
Borr Huldra Inc. (formerly known as Borr Jack-Up XXX Inc.), a company incorporated under the laws of the Marshall Islands with registration number 92785 and having its registered office at Trust Company Complex, Ajeltake Island,
Majuro, Marshall Islands MH 96960.
|
The US$ 86,400,000 credit agreement in relation to the
vessel "HULDRA" originally dated 16 May 2018, and entered into between the Creditor and the Debtor listed in the corresponding column of this table.
(the "Original Credit Agreement (B380 HULDRA)",
and as amended and supplemented by this Deed, the
"Amended Credit Agreement (B380 HULDRA)")
|
Borr Huldra Inc. (formerly known as Borr Jack-Up XXX Inc.), a company incorporated under the laws of the Marshall Islands with registration number 92785 and
having its registered office at Trust Company Complex,
Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
Hull No. B381
"HEIDRUN"
|
The construction contract in relation to the vessel "HEIDRUN" originally dated 16 May 2018, as
amended and restated by the amended and restated
construction contract dated 6 June 2018, and entered into between the Builder and the Purchaser listed in the
corresponding column of this table.
(the "Original Construction Contract (B381 HEIDRUN)", and as amended and supplemented by this Deed, the "Amended Construction Contract (B381 HEIDRUN)")
|
Borr Heidrun Inc. (formerly known as Borr Jack-Up XXXI Inc.), a company incorporated under the laws of the Marshall Islands with registration number 92786 and having its registered office at Trust Company Complex, Ajeltake Island,
Majuro, Marshall Islands MH 96960.
|
The US$ 86,400,000 credit agreement in relation to the
vessel "HEIDRUN" originally dated 16 May 2018, and entered into between the Creditor and the Debtor listed in the corresponding column of this table.
(the "Original Credit Agreement (B381 HEIDRUN)",
and as amended and supplemented by this Deed, the
"Amended Credit Agreement (B381 HEIDRUN)")
|
Borr Heidrun Inc. (formerly known as Borr Jack-Up XXXI Inc.), a company incorporated under the laws of the Marshall Islands with registration number 92786 and having its registered office at Trust Company Complex, Ajeltake Island,
Majuro, Marshall Islands MH 96960.
|
Hull No. B366
"TIVAR"
|
The construction contract in relation to the vessel "TIVAR" originally dated 6 November 2013, as amended by the variation orders and side letter set out in Exhibit II of the novation agreement dated 24
May 2017 (the "B366 Novation Agreement"), as novated and amended by the B366 Novation
Agreement and further amended by the building contract amendment agreement dated 24 May 2017 and the building contract second amendment agreement dated 6 June 2018, between the Builder and the Purchaser listed in the
corresponding column of this table.
|
Borr Tivar Inc. (formerly known as Borr Jack-Up V Inc.), a company incorporated under the laws of the Marshall Islands with registration number 89740 and having its registered address at Trust Company Complex, Ajeltake Island,
Majuro, Marshall Islands MH 96960.
|
N/A
|
N/A
|
(the "Original Construction Contract (B366 TIVAR)", and as amended and supplemented by this Deed, the "Amended
Construction Contract (B366 TIVAR)")
|
||||
Hull No. B367
"VALE"
|
The construction contract in relation to the vessel "VALE" originally dated 6 November 2013, as amended by the variation orders and side letter set out in Exhibit II of the novation agreement dated 24
May 2017 (the "B367 Novation Agreement"), as novated and amended by the B367 Novation Agreement and further amended by the building contract amendment agreement dated 24 May 2017, between
the Builder and the Purchaser listed in the corresponding column of this table.
(the "Original Construction Contract (B367 VALE)", and as amended and supplemented by this Deed, the "Amended
Construction Contract (B367 VALE)")
|
Borr Vale Inc. (formerly known as Borr Jack-Up VI Inc.), a company incorporated under the laws of the Marshall Islands with registration number 89741 and having its registered address at Trust Company Complex, Ajeltake Island,
Majuro, Marshall Islands MH 96960.
|
N/A
|
N/A
|
Hull No. B368
"VAR"
|
The construction contract in relation to the vessel "VAR" originally dated 6 November 2013, as amended by the variation orders and side letter set out in Exhibit II of the novation agreement dated 24
May 2017 (the "B368 Novation Agreement"), as novated and amended by the B368 Novation Agreement and further amended by the building contract amendment agreement dated 24 May 2017, between
the Builder and the Purchaser listed in the corresponding column of this table.
(the "Original Construction Contract (B368 VAR)", and as amended and supplemented by
this Deed, the "Amended Construction Contract (B368 VAR)")
|
Borr Var Inc. (formerly known as Borr Jack-Up VII Inc.), a company incorporated under the laws of the Marshall Islands with registration number 89742 and having its registered address at Trust Company Complex, Ajeltake Island,
Majuro, Marshall Islands MH 96960.
|
N/A
|
N/A
|
Vessel
|
Guideline
|
Clause reference
|
Hull No. B366
("TIVAR")
|
Defer delivery of vessel from July 2020 to 2Q 2022
|
4.1(a)
|
No sellers credit will be provided on delivery - full payment of principal due to Keppel prior to delivery
|
4.1(b)
|
|
[***] holding costs payable from July 2020 to the date of delivery;
|
4.1(c)
|
|
Cost cover payable at [***] from July 2020 to the date of delivery
|
4.1(d)
|
|
Cost cover and holding costs to be paid quarterly in advance commencing 1 January 2021 to the date of delivery
|
4.1(c)
4.1(d)
|
|
Hull No. B367
("VALE")
Hull No. B368
("VAR")
|
Defer delivery of both vessels from 1Q 2022 to end 3Q 2022
|
4.2(a)
|
4.3(a)
|
||
Sellers credit of USD130m to be provided for each vessel on delivery
|
4.2(b)
|
|
4.2(b)
|
||
USD10m currently due to be paid in October 2020 for Vale, cost cover of [***] payable from October 2020 to date of delivery, payment to be made quarterly in advance from 1 January 2021 to date of delivery
|
4.2(d)
|
|
USD10m currently due to be paid in December 2020 for Var, cost cover payable at [***] from December 2020 to date of delivery, payment to be made quarterly in advance from 1 January 2021 to date of delivery
|
4.3(d)
|
|
Vale cost cover of [***] payable on USD137.4m from deferred delivery of 1Q 2022 to 3Q2022, payment to be deferred and paid on delivery
|
4.2(e)
|
|
Var cost cover of [***] payable on USD137.4m from 1Q 2022 to 3Q2022, payment to be deferred and paid on delivery
|
4.3(e)
|
|
USD17.4m due on Var and Vale on delivery of each vessel
|
N/A
|
|
Delivery contingent on full repayment of amounts owing by Borr to Keppel in respect of Tivar
|
11.1, 11.10
|
|
Hull No. B380
("HULDRA")
Hull No. B381
("HEIDRUN")
|
Defer delivery of both vessels from 2020 to end 3Q 2022
|
4.4(a)
|
4.5(a)
|
||
[***] holding costs payable from July 2020 to 31 December 2021 for Heidrun, payment to be made quarterly in advance from 1 January 2021 to 31 December 2021
|
4.5(c)
|
|
[***] holding costs payable from October 2020 to 31 December 2021 for Huldra, payment to be made quarterly in advance from 1 January 2021 to 31 December 2021
|
4.4(c)
|
|
Three equal quarterly principal payments totalling USD13.25m per vessel payable in 1Q – 3Q 2022
|
4.4(d)
4.5(d)
|
Sellers credit to be reduced by USD13.25m from USD86.4m to
|
4.4(b)
|
|
USD73.15m be provided for each vessel on delivery
|
4.5(b)
|
|
Delivery contingent on full repayment of amounts owing by Borr to Keppel in respect of Tivar
|
11.1, 11.10
|
|
Hull No. B358
("HILD")
Hull No. B360
("HEIMDAL")
|
Financing terms remain as currently agreed
|
N/A
|
Borr to undertake not to file for Chapter 11 or any other insolvency proceeding in any jurisdiction without first transferring the vessels or the shares in the entities that own the vessels to Keppel
|
4.6(a)
|
|
Hull No. B361
("HERMOD")
|
Borr to regularly demonstrate to Keppel that the vessels are being adequately maintained (terms to be agreed)
|
4.6(b)
|
Others
|
non-payment of any amounts due in respect of the terms included in this proposal will constitute an event of default and will result in cross defaults in respect of all other credit extended by Keppel to Borr
|
11.1
|
Keppel to retain option to sell or charter all delivered or undelivered vessels to a third party prior to the date of delivery to Borr subject to mutual agreement by Borr
|
4.7
|
|
10 days notice to be provided by Borr to Keppel in advance of any Chapter 11 filing or any other filing for any insolvency proceeding in any other jurisdiction
|
9.5(b)
|
|
Within 10 days of any equity raising or documentation of the terms herein, Borr must advise Keppel of all covenants and warranties provided to or in respect of the agreements listed in Schedule 1 of the 15 may 2020 Borr Draft LOI
and the relevant bondholders documentation
|
3.1(c)
|
|
Immediate notice to be provided by Borr to Keppel of any event of default under any of the Agreements
|
9.5(a)
|
|
Borr to deliver to Keppel, to the extent not already delivered, originals of all documents and evidence required to be provided as conditions precedent to the issuance of a borrowing notice / granting of the loans under each of the
credit agreements relating to the vessels "Hild", "Heimdal" and "Hermod", including but not limited to the documents listed in paragraph 3 of the attached letter dated 22 April 2020 issued by OFFSHORE PARTNERS PTE. LTD. to BORR HILD
INC.. Such documents should be delivered to 50 Gul Road Singapore 629351 Attention: [***] by 21 May 2020 notwithstanding any other arrangements which may have been agreed to between the parties
|
3.1(a)
|
|
Borr to comply with all existing information covenants and any other reasonable information requests from Keppel
|
9
|
|
Borr to meet all reasonable Keppel financial and legal advisor fees incurred in respect of the terms of this proposal
|
7.3
|
1.
|
Obligors
|
(a)
|
A copy of the constitutional documents of each Obligor.
|
(b)
|
A copy of a resolution of the board of directors of each Obligor (or, in respect of the Parent, a copy of the extract of the board resolutions):
|
(i)
|
approving the terms of, and the transactions contemplated by, the Relevant Documents to which it is a party and resolving that it executes, delivers and performs the Relevant Documents to which it is a party;
|
(ii)
|
authorising a specified person or persons to execute the Relevant Documents to which it is a party on its behalf;
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Relevant Documents to which it is a party; and
|
(iv)
|
resolving that it is in its best interests to enter into the transactions contemplated by the Relevant Documents to which it is a party.
|
(c)
|
An original of any power of attorney issued by any Obligor authorising a specified person or persons to execute the Relevant Documents to which that Obligor is a party.
|
(d)
|
A copy of (if necessary or desirable) a resolution signed by all the holders of the issued shares in any Obligor approving the terms of, and the transactions contemplated by, the Relevant Documents to
which it is a party.
|
(e)
|
A certificate of a director of each Obligor:
|
(i)
|
Attaching specimen(s) of the signature of each person executing a Relevant Document authorised by the resolution or power of attorney referred to in paragraphs (b) and (c) above;
|
(ii)
|
confirming that borrowing, guaranteeing or granting of Security to secure, as appropriate, the Secured Liabilities would not cause any borrowing, guaranteeing, granting of Security or similar limit binding on it to be exceeded;
and
|
(iii)
|
certifying that each copy document relating to it or delivered on its behalf specified in this Part 1 of this Schedule 3 is correct, complete and in full force and effect as at a date no earlier than the Effective Date.
|
2.
|
Restructuring consents and documents
|
2.1
|
Equity Raise
|
(a)
|
Evidence that the Parent has received (or that the relevant bookrunner or arranger mandated by the Parent in relation to such subscriptions has received in escrow on behalf of the Parent to be released to the Parent by or on
the Effective Date) an aggregate gross amount of US$30,000,000 from the subscription for by any person for ordinary shares or equity interests in the Parent or for subordinated loan notes or other subordinated debt
instruments in the Parent, in each case on or after 20 May 2020 (the "Equity Raise").
|
2.2
|
Key creditor consents
|
(a)
|
Evidence that, in relation to the US$450,000,000 Senior Secured Credit Facilities Agreement dated 25 June 2019 entered into between, amongst others, the Parent and/or other relevant members of the Group and DNB BANK ASA,
DANSKE BANK, NORWEGIAN BRANCH, CITIBANK N.A., JERSEY BRANCH, GOLDMAN SACHS BANK USA and CLIFFORD CAPITAL PTE. LTD., the parties thereto have entered into amendment agreements which provide that by or on the Effective
Date:
|
(i)
|
all principal payments thereunder for the calendar year 2021 shall be deferred until the final maturity date or final termination date specified thereunder; and
|
(ii)
|
any temporary waiver granted thereunder in respect of an event of default (howsoever described) prior to the date of this Deed is permanently waived or cured on the Effective Date.
|
(b)
|
Evidence that, in relation to the US$100,000,000 Senior Secured Credit Facilities Agreement dated 25 June 2019 entered into between the Parent and/or other relevant members of the Group and DNB BANK ASA and DANSKE BANK,
NORWEGIAN BRANCH, the parties thereto have entered into amendment agreements which provide that by or on the Effective Date:
|
(i)
|
all principal payments thereunder for the calendar year 2021 shall be deferred until the final maturity date or final termination date specified thereunder; and
|
(ii)
|
any temporary waiver granted thereunder in respect of an event of default (howsoever described) prior to the date of this Deed is permanently waived or cured on the Effective Date.
|
(c)
|
Evidence that, in relation to the US$ 195,000,000 Secured Term Loan Facility Agreement dated 25 June 2019 entered into between the Parent and/or other relevant members of the Group and HAYFIN SERVICES LLP, the parties
thereto have entered into amendment agreements which provide that by or on the Effective Date, certain restrictions on the use of cash by the Parent and/or other relevant members of the Group imposed by HAYFIN
SERVICES LLP are waived.
|
(d)
|
Evidence that, in relation to:
|
(i)
|
the sale and purchase agreement dated 9 October 2017 between BORR GALAR INC. (formerly known as BORR JACK-UP XVII INC.) and PPL SHIPYARD PTE. LTD. ("PPL") with respect to the sale and
purchase of the "GALAR" as novated by a novation agreement dated 16 January 2020 between BORR GALAR (UK) LIMITED, BORR GALAR INC., PPL and the Parent;
|
(ii)
|
the sale and purchase agreement dated 9 October 2017 between BORR GERD INC. (formerly known as BORR JACK-UP XVIII INC.) and PPL with respect to the sale and purchase of the "GERD";
|
(iii)
|
the sale and purchase agreement dated 9 October 2017 between BORR GERSEMI INC. (formerly known as BORR JACK-UP XIX INC.) and PPL with respect to the sale and purchase of the "GERSEMI" as acquired by BORR GESEMI (UK) LIMITED and
subsequently novated by a novation agreement dated 26 June 2019 between BORR GERSEMI INC., PPE, BORR GESEMI (UK) LIMITED and the Parent;
|
(iv)
|
the sale and purchase agreement dated 9 October 2017 between BORR GRID INC. (formerly known as BORR JACK-UP XX INC.) and PPL with respect to the sale and purchase of the "GRID" as acquired by BORR GRID (UK) LIMITED and
subsequently novated by a novation agreement dated 26 June 2019 between BORR GRID INC., PPE, BORR GRID (UK) LIMITED and the Parent;
|
(v)
|
the sale and purchaseagreement dated 9 October 2017 between BORR GROA INC. (formerly known as BORR JACK-UP XXII INC.) and PPL with respect to the sale and purchase of the "GROA";
|
(vi)
|
the sale and purchase agreement dated 9 October 2017 between BORR GUNNLOD INC. (formerly known as BORR JACK-UP XXI INC.) and PPL with respect to the sale and purchase of the "GUNNLOD";
|
(vii)
|
the rig construction agreement dated 9 October 2017 between BORR GYME INC. (formerly known as BORR JACK-UP XXIII INC.) and PPL with respect to the construction, sale and purchase of the "GYME";
|
(viii)
|
the rig construction agreement dated 9 October 2017 between BORR NATT INC. (formerly known as BORR JACK-UP XXIV INC.) and PPL with respect to the construction, sale and purchase of the "NATT"; and
|
(ix)
|
the rig construction agreement dated 9 October 2017 between BORR NJORD INC. (formerly known as BORR JACK-UP XXV INC.) and PPL with respect to the construction, sale and purchase of the "NJORD" as novated by a novation agreement
dated 16 January 2020 between BORR NJORD (UK) LIMITED, BORR NJORD INC., PPL and the Parent,
|
(e)
|
Copies of each document or agreement which evidences the terms of the consents referred to in paragraphs (a) to (d) above.
|
3.
|
Relevant Documents
|
(a)
|
Such number of copies of this Deed as the Creditor Parties may require, duly executed, dated and delivered by each party thereto.
|
4.
|
Legal opinions
|
(a)
|
An agreed form of a legal opinion in relation to the laws of England from Latham & Watkins LLP, addressed to the Creditor Parties.
|
(b)
|
An agreed form of a legal opinion in relation to the laws of Bermuda from Zuill & Co, addressed to the Creditor Parties.
|
(c)
|
An agreed form of a legal opinion in relation to the laws of the Marshall Islands from Holland & Knight LLP, addressed to the Creditor Parties.
|
5.
|
Others
|
(a)
|
Evidence that any process agent referred to in the Relevant Documents (if not an Obligor) has accepted its appointment.
|
(b)
|
A copy of any other Authorisation or other document, opinion or assurance which any Creditor Party considers to be necessary or desirable (if it has notified the Obligors' Agent accordingly) in connection with the entry into
and performance of the transactions contemplated by any Relevant Document or for the validity and enforceability of any Relevant Document.
|
(c)
|
A draft of any filings, disclosures, announcement or publicity relating to this Deed which is to be made by any Obligor pursuant to the rules of any relevant stock exchange on which shares in or other securities of such
Obligor are listed.
|
1.
|
Relevant Documents
|
(a)
|
By the date falling five Business Days after the Effective Date, such number of originals of this Deed as the Creditor Parties may require, duly executed, dated and delivered by each party thereto.
|
(b)
|
As soon as reasonably practicable, and in any case by the date falling 20 Business Days after the Effective Date, such amendments or supplements to any Security Document (as defined in any Original Credit Agreement) as may be
necessary or desirable to give effect to the provisions of this Deed.
|
2.
|
Equity raise
|
(a)
|
By the date falling 10 Business Days after the Effective Date, evidence that the Parent has received the proceeds of the Equity Raise.
|
3.
|
Opinion
|
(a)
|
By the date falling one Month after the Effective Date, an issued copy of each agreed form legal opinion delivered to the Creditor Parties pursuant to Clause 3.1 (Conditions precedent), in
the agreed form delivered to the Creditor Parties pursuant to Clause 3.1 (Conditions precedent).
|
4.
|
Outstanding documents
|
(a)
|
By the date falling 10 days after the Effective Date, all documents and evidence required to be supplied to the Creditor, but have not yet been supplied to the Creditor, as conditions precedent to the issuance of any
Borrowing Notice (as defined in any Credit Agreement) or the granting of any Loan (as defined in any Credit Agreement) under Credit Agreement, including the documents listed in paragraph 3 of the letter dated 22 April 2020 issued
by the Creditor to BORR HILD INC., including, without limitation, the original share certificate of BORR HILD INC..
|
/s/ [***]
|
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/s/ [***]
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/s/ [***]
|
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/s/ [***]
|
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/s/ [***]
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/s/ [***]
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/s/ [***]
|
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
|
|
/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***]
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/s/ [***] |
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/s/ [***]
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/s/ [***] |
|
No.
|
Legal Entity Name
|
Company Registration
|
Date of Incorporation
|
Registered Address
|
Core Business
|
Country of Incorporation
|
1
|
Borr Drilling Limited
|
Registration No. 51741
|
9 August 2016
|
S.E. Pearman Building, 2nd Fl,
9 Par-la-Ville Road, Hamilton HM11, Bermuda
|
Holding Company
|
Bermuda
|
2
|
Borr Drilling Management AS
|
Registration No. 918 125 043
|
18 November 2016
|
Klingenberggata 4, 0161 Oslo
|
Management
|
Norway
|
3
|
Borr International Resources Limited
|
Registration No. 1964526
|
20 December 2017
|
Craigmuir Chamber, Road Town, Tortola, VG 1110, British Virgin Islands
|
Crewing
|
British Virgin Islands
|
4
|
Borr Drilling Equipment Pool Inc.
|
Registration No.90668
|
8 May 2017
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Equipment Owner
|
Marshall Islands
|
5
|
Borr International Operations Inc.
|
Registration No.92023
|
26 July 2017
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Operating Company (Nigeria)
|
Marshall Islands
|
6
|
Borr SEA Operations Inc.
|
Registration No.92792
|
30 October 2017
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
|
Operating Company (Vietnam, Thailand)
|
Marshall Islands
|
7
|
Borr Eastern Peninsula Pte. Ltd.
|
Registration No.201812030C
|
10 April 2018
|
24 Raffles Place
#18-00 Clifford Centre
Singapore 048621
|
Procurement
|
Singapore
|
8
|
Borr Drilling Management (UK) Limited
|
Registration No. 10758288
|
8 May 2017
|
20 North Audley Street,
London W1K 6LX
|
Management
|
England and Wales
|
9
|
Borr Drilling Management DMCC
|
Registration No.DMCC88379
|
12 June 2017
|
28th Floor Reef Tower, Jumeirah Lakes Towers, Dubai
|
Management
|
Dubai, UAE
|
10
|
Borr Holdings Limited
|
Registration No. OC-338105
|
8 June 2018
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Holding Company
|
Cayman Islands
|
11
|
Prospector Rig 1 Contracting Company Limited
|
Registration No. OC-339040
|
28 June 2018
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Rigowner – P1
|
Cayman Islands
|
12
|
Prospector Rig 5 Contracting Company Limited
|
Registration No. OC-339041
|
28 June 2018
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Rigowner – P5
|
Cayman Islands
|
13
|
Paragon Offshore Limited
|
Registration No. OC-323580
|
7 June 2017
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Holding Company
|
Cayman Islands
|
14
|
Paragon Offshore International Finance Company
|
Registration No.34559
|
11 January 1990
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Financial Holding
|
Cayman Islands
|
15
|
Paragon Asset Company Limited
|
Registration No.MC-65874
|
2 May 1996
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Rigowner
|
Cayman Islands
|
No.
|
Legal Entity Name
|
Company Registration
|
Date of Incorporation
|
Registered Address
|
Core Business
|
Country of Incorporation
|
16
|
Paragon Assets (UK) Limited
|
Registration No.MC-66071
|
14 May 1996
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Operating Company
|
Cayman Islands
|
17
|
Paragon Offshore (North Sea) Limited
|
Registration No. MC-65866
|
2 May 1996
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Operating Company
|
Cayman Islands
|
18
|
Paragon Offshore Enterprises Limited
|
Registration No. MC-36816
|
19 July 1990
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Crewing
|
Cayman Islands
|
19
|
Paragon Offshore Drilling LLC
|
Registration No. Unknown
|
21 November 1939
|
3151 Briarpark Drive, Suite 700, Houston, Texas 77042, USA
|
Operating Company
|
Delaware
|
20
|
Paragon (Middle East) Limited
|
Registration No.MC-123870
|
6 March 2003
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Rigowner
|
Cayman Islands
|
21
|
Paragon Offshore (Land Support) Limited
|
Registration No. 459415
|
18 September 2013
|
Pavilion 4 Westpoint Business Park, Prospect Road, Westhill, Scotland, AB32 6FE
|
Operating Company
|
Scotland
|
22
|
Paragon Offshore Management S. de R.L. de C.V.
|
Mexico Federal Taxpayer registry NM080723PNA
|
6 February 2009
|
Petrarca 223 Despacho-503, Polanco Distrito Federal 11560, Mexico City
|
Management
|
Mexico
|
23
|
Paragon Offshore (Nederland) B.V.
|
CCI Number 24159026
|
2 June 1948
|
Parallelweg 96, 1948NM Beverwijk, The Netherlands
|
Operating Company
|
The Netherlands
|
24
|
Paragon Offshore Holdings US Inc.
|
Registration No. Unknown
|
22 May 2014
|
3151 Briarpark Drive, Suite 700, Houston, Texas 77042, USA
|
Holding
|
Delaware
|
25
|
Paragon Offshore (GOM) Inc.
|
Registration No. Unknown
|
20 January 1993
|
3151 Briarpark Drive, Suite 700, Houston, Texas 77042, USA
|
Holding
|
Delaware
|
26
|
Borr Drilling (US) Inc.
|
Registration No. Unknown
|
4 December 2018
|
3151 Briarpark Drive, Suite 700, Houston, Texas 77042, USA
|
General
|
Delaware
|
27
|
Paragon Offshore Leasing (Switzerland) GmbH
|
Registration No. CHE-114.563.221
|
Lindednstrasse 14, 6340 Baar, Switzerland
|
Rigowner
|
Switzerland
|
|
28
|
Paragon Offshore Holdings Limited
|
Registration No. MC323850
|
16 June 2017
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Holding
|
Cayman Islands
|
29
|
Paragon Offshore International Limited
|
Registration No. MC-34559
|
18 May 1990
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Operating
|
Cayman Islands
|
30
|
Paragon Offshore Cameroon SARL
|
Registration No. Unknown
|
13 October 2016
|
2nd Floor SCI 2000 Building, Rue NJO, NJO Bonapriso Po. Box. 4155, Douala, Cameroon
|
Operating Company
|
Cameroon
|
31
|
Prospector Offshore Drilling (UK) Limited
|
Registration No. 405121
|
10 August 2011
|
Pavilion 4 Westpoint Business Park, Prospect Road, Westhill, Scotland, AB32 6FE
|
Operating Company
|
Scotland
|
32
|
Prospector Offshore Drilling (Singapore) Pte. Ltd.
|
Registration No. 201227362D
|
8 November 2012
|
79 Anson Road #23-06
Singapore 079906
|
Operating Company
|
Singapore
|
33
|
Borr Serviços Offshore Limitada
|
NIRE No. 33.2.1062834-8
|
27 September 2018
|
Rua Teixeira de Freitas, No. 31, Suite 701, 20021-350, Rio de Janeiro, Brazil
|
Operating Company
|
Brazil
|
34
|
Borr Drilling Malaysia Sdn. Bhd.
|
Registration No. 1321528-P
|
10 April 2019
|
Level 22, Axiata Tower No. 9, Jalan Stesen Sentral 5, Kuala Lumpur Sentral 50470, Kuala Lumpur W.P. Kuala Lumpur, Malaysia
|
Operating Company
|
Malaysia
|
35
|
Borr Global Limited
|
Registration No. MC-322291
|
2 May 2017
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Operating
|
Cayman Islands
|
No.
|
Legal Entity Name
|
Company Registration
|
Date of Incorporation
|
Registered Address
|
Core Business
|
Country of Incorporation
|
36
|
Borr Offshore Operations Limited
|
Registration No. MC-322275
|
2 May 2017
|
89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands
|
Operating
|
Cayman Islands
|
37
|
Borr Mexico Ventures Limited
|
Registration No. 625126
|
21 March 2019
|
Pavilion 4 Westpoint Business Park, Prospect Road, Westhill, Scotland, AB32 6FE
|
Holding Company
|
Scotland
|
38
|
Borr Grid (UK) Limited
|
Registration No.625273
|
22 March 2019
|
Pavilion 4 Westpoint Business Park, Prospect Road, Westhill, Scotland, AB32 6FE
|
Rigowner-Grid
|
Scotland
|
39
|
Borr Gersemi (UK) Limited
|
Registration No. 625315
|
22 March 2019
|
Pavilion 4 Westpoint Business Park, Prospect Road, Westhill, Scotland, AB32 6FE
|
Rigowner-Gersemi
|
Scotland
|
40
|
Borr Odin (UK) Limited
|
Registration No. 617410
|
7 January 2019
|
Pavilion 4 Westpoint Business Park, Prospect Road, Westhill, Scotland, AB32 6FE
|
Rigowner-Odin
|
Scotland
|
41
|
Borr Galar (UK) Limited
|
Registration No. 12162524
|
19 August 2019
|
20 North Audley Street,
London W1K 6LX
|
Rigowner-Galar
|
England and Wales
|
42
|
Borr Njord (UK) Limited
|
Registration No. 12299476
|
5 November 2019
|
20 North Audley Street,
London W1K 6LX
|
Rigowner-Njord
|
England and Wales
|
43
|
Operadora Productora y Exploradora Mexicana, S.A. de C.V. (49% owned by Borr)
|
Federal Taxpayer registry No. OPE1508199S0
|
26 March 2019
|
Paseo de la Reforma No. 2654,
Col. Lomas Altas, Miguel Hidalgo Ciudad de México, C.P. 11950
|
IWS Operator
|
Mexico
|
44
|
Perforaciones Estrategicas e Integrales Mexicana S.A. de C.V.
(49% owned by Borr)
|
Federal Taxpayer registry No. PEI190327LE9
|
26 March 2019
|
Paseo de la Reforma No. 2654,
Col. Lomas Altas, Miguel Hidalgo Ciudad de México, C.P. 11950
|
Drilling Operator
|
Mexico
|
45
|
Perforadora Profesional Akal I, S.A. de C.V.
(49% owned by Borr)
|
Federal Taxpayer registry No. PPA1908207G4
|
20 August 2019
|
Paseo de la Reforma No. 2654,
Col. Lomas Altas, Miguel Hidalgo Ciudad de México, C.P. 11950
|
IWS Operator
|
Mexico
|
46
|
Perforaciones Estrategicas e Integrales Mexicana II S.A. de C.V.
(49% owned by Borr)
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Federal Taxpayer registry No. PEI190924CD3
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24 September 2019
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Paseo de la Reforma No. 2654,
Col. Lomas Altas, Miguel Hidalgo Ciudad de México, C.P. 11950
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Drilling Operator
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Mexico
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47
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Borr (UK) Holdings Limited
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Registration No. 617356
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7 January 2019
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Pavilion 4 Westpoint Business Park, Prospect Road, Westhill, Scotland, AB32 6FE
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Holding
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Scotland
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48
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Borr Drilling Mexico S. de R.L. de C.V.
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Federal Taxpayer registry BDM1812041D9
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20 December 2018
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Av. Javier Barros 540, Torre 1, Piso5, 01210 Lomas de Santa Fe, Ciudad de Mexico, Mexico
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Management
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Mexico
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49
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Borr Drilling Contracting S. de R.L. de C.V.
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Federal Taxpayer registry BDC181220SR1
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20 December 2018
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Av. Javier Barros 540, Torre 1, Piso 5, 01210 Lomas de Santa Fe, Ciudad de Mexico, Mexico
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Operating Company
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Mexico
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50
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Borr Management Mexico S. de R.L. de C.V.
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Federal Taxpayer registry BMM181220MA2
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20 December 2018
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Av. Javier Barros 540, Torre 1, Piso 5, 01210 Lomas de Santa Fe, Ciudad de Mexico, Mexico
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Services
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Mexico
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51
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Borr Offshore Services Mexico S. de R.L. de C.V.
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Mexico Federal Taxpayer registry BOS181220LZ4
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20 December 2018
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Av. Javier Barros 540, Torre 1, Piso 5, 01210 Lomas de Santa Fe, Ciudad de Mexico, Mexico
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Crewing
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Mexico
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52
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Borr Midgard Holding Limited
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Registration No. 54739
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14 June 2019
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S.E. Pearman Building, 2nd Fl,
9 Par-la-Ville Road, Hamilton HM11, Bermuda
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Holding Company
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Bermuda
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1. |
I have reviewed this annual report on Form 20-F of Borr Drilling Limited;
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
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3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for,
the periods presented in this report;
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4. |
The company's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
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a. |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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b. |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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c. |
Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
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d. |
Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the
company's internal control over financial reporting; and
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5. |
The company's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditors and the audit committee of the company's board of directors (or
persons performing the equivalent functions):
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a. |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report
financial information; and
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b. |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
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Date:
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June 15, 2020
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By:
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/s/ Svend Anton Maier |
z
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Name:
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Svend Anton Maier
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Title:
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Chief Executive Officer
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1. |
I have reviewed this annual report on Form 20-F of Borr Drilling Limited;
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
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3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for,
the periods presented in this report;
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4. |
The company's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
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a. |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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b. |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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c. |
Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
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d. |
Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the
company's internal control over financial reporting; and
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5. |
The company's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditors and the audit committee of the company's board of directors (or
persons performing the equivalent functions):
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a. |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report
financial information; and
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b. |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
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Date:
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June 15, 2020
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|
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By:
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/s/ Francis Millet |
z
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Name:
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Francis Millet
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Title:
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Chief Financial Officer
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1. |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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2. |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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/s/ Svend Anton Maier |
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Name: Svend Anton Maier
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Title: Chief Executive Officer
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Date: June 15, 2020
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/s/ Francis Millet |
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Name: Francis Millet
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Title: Chief Financial Officer
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Date: June 15, 2020
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ITEM 16F.
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CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT
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• |
no “disagreements” (as that term is defined in Item 16F(a)(1)(iv) of Form 20-F and the instructions to Item 16F) between the Company and PwC Norway on any matters of accounting principles or practices, financial statement disclosure, or
auditing scope or procedures, which disagreement(s), if not resolved to PwC Norway’s satisfaction would have caused PwC Norway to make reference to the subject matter of the disagreement(s) in connection with its report, and
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• |
no “reportable events” (as that term is defined in Item 16F(a)(1)(v) of Form 20-F), except for the material weakness in the Company’s internal control over financial reporting related to the lack of a sufficient number of competent financial
reporting and accounting personnel to prepare and review our consolidated financial statements and related disclosures in accordance with U.S. GAAP and financial reporting requirements set forth by the SEC as disclosed in the Company’s prior
filings on Form F-1 and F-1/A with the SEC. The Audit Committee of the Company discussed the subject matter of each reportable event with PwC Norway and has authorized PwC Norway to respond fully to the inquiries of PwC UK concerning the
subject matter of each reportable event.
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