EXHIBIT 10.19
Dated 30 January 2003
GLOBALSANTAFE CORPORATION
as Guarantor
- and -
SOGELEASE B.V.
--------------------------
GUARANTEE AND INDEMNITY
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relating to the ▇▇▇▇-up drilling unit known as "BRITANNIA"
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LONDON
INDEX
CLAUSE PAGE
1 DEFINITIONS AND INTERPRETATION 1
2 GUARANTEE AND INDEMNITY 2
3 DEMANDS AND CERTIFICATES 3
4 TIME AND INDULGENCE 3
5 CONTINUING SECURITY 4
6 NO COMPETITION 5
7 GUARANTOR'S OBLIGATIONS 6
8 REPRESENTATIONS AND WARRANTIES 6
9 COVENANTS 7
10 PAYMENTS AND TAXES 8
11 ACKNOWLEDGEMENT AND DECLARATION 9
12 ASSIGNMENT 10
13 COSTS AND EXPENSES 10
14 MISCELLANEOUS 11
15 SUBMISSION TO JURISDICTION 12
16 JUDGMENT CURRENCY 13
17 CONFIDENTIALITY 13
18 VAT 14
19 NATURE OF DOCUMENT 14
THIS GUARANTEE AND INDEMNITY is made on 30 January 2003
BETWEEN:
(1) GLOBALSANTAFE CORPORATION, a corporation incorporated under the laws of
the Cayman Islands with its registered office c/o M&C Corporate Services
Limited, ▇▇ ▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇ House, South Church Street, ▇▇▇▇▇▇ Town,
Grand Cayman, Cayman Islands and having an office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ - 4101, U.S.A. (the "GUARANTOR") and
(2) SOGELEASE B.V. a company incorporated under the laws of the Netherlands
whose principal office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("SOGELEASE")
WHEREAS:
(A) Pursuant to the Head-Lease, North Sea as lessor has agreed, inter alia, to
lease the Rig to Sogelease, as lessee upon the terms and conditions
therein contained.
(B) Pursuant to the Sub-Lease, Sogelease has agreed, inter alia, to sub-lease
the Rig to North Sea, upon the terms and conditions therein contained.
(C) North Sea is a wholly owned subsidiary of the Guarantor.
(D) It is a condition precedent to the obligations of Sogelease under the
Head-Lease and the Sub-Lease that the Guarantor executes and delivers this
Guarantee and Indemnity to Sogelease.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 Save as otherwise expressly provided herein, words and expressions used in
this Guarantee and Indemnity shall have the meanings, if any, respectively
attributed thereto in the Head-Lease and the Sub-Lease. In this Guarantee
and Indemnity (including the Recitals) the following words and expressions
shall have the meanings respectively attributed to them below:
"GROUP" means the Guarantor and its Affiliates from time to time;
"GUARANTEED AGREEMENTS" means each of the Lease Documents;
"GUARANTEED OBLIGATIONS" means any and all monies, liabilities and
obligations (whether actual or contingent, whether now existing or
hereafter arising, whether arising in respect of or attributable to the
period prior to the date of this Guarantee and Indemnity or to any time
hereafter whether or not for the payment of money, and including, without
limitation, any obligation or liability to pay damages and including any
interest which, but for the application of bankruptcy or insolvency laws,
would have accrued on the amounts in question) which are now or which may
at any time and from time to time hereafter be due, owing, payable,
incurred or to be performed or be expressed to be due, owing, payable,
incurred or to be performed from or by North Sea under or in connection
with the Guaranteed Agreements;
"HEAD-LEASE" means the lease in respect of the Rig entered or to be
entered into between North Sea as lessor and Sogelease as lessee;
"NORTH SEA" means GlobalSantaFe Drilling Company (North Sea) Limited, a
company incorporated under the laws of England and Wales and having its
registered office at Lothing Depot, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
"RIG" means the ▇▇▇▇-up drilling unit known as "BRITANNIA" and more
particularly described in the Head-Lease and the Sub-Lease; and
"SUB-LEASE" means the lease in respect of the Rig entered or to be entered
into between Sogelease as lessor and North Sea as lessee.
1.2 The provisions of Clause 1.2 (Construction of terms) of the Head-Lease
shall also apply to this Guarantee and Indemnity as if expressly set out
in this Guarantee and Indemnity except that all references to "Lease" are
to be construed as references to this Guarantee and Indemnity.
1.3 A person who is not a party to this Guarantee and Indemnity may not
enforce its rights under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
1.4 If Sogelease considers, acting reasonably, that an amount paid by North
Sea under a Lease Document is capable of being avoided or otherwise set
aside on the liquidation or administration of North Sea or otherwise, then
that amount shall not be considered to have been irrevocably paid for the
purposes of the Lease Documents.
2 GUARANTEE AND INDEMNITY
2.1 The Guarantor:
(a) as primary obligor and not as surety only, unconditionally and irrevocably
guarantees to Sogelease the due and punctual observance and performance by
North Sea of each and every one of the Guaranteed Obligations;
(b) unconditionally and irrevocably undertakes with Sogelease that whenever
North Sea fails to perform any of the Guaranteed Obligations when due
(taking into account any relevant grace or cure periods under the Lease
Documents), the Guarantor shall forthwith on demand by Sogelease perform
such Guaranteed Obligation or cause such Guaranteed Obligation to be
performed, punctually as if such Guaranteed Obligation were performed by
North Sea, as the case may be; and
(c) hereby irrevocably and unconditionally undertakes, covenants and agrees
with Sogelease as a primary obligation to indemnify Sogelease and each
Indemnified Person and keep Sogelease and each Indemnified Person
indemnified on demand and on a full indemnity basis for and against any
and all Losses incurred or sustained by Sogelease or any indemnified
person in relation to and arising out of the failure of North Sea duly and
punctually to perform the Guaranteed Obligations or as a result of the
whole or any part of the Guaranteed Obligations being or becoming void,
voidable, unenforceable or ineffective as against North Sea, as the case
may be, for any reason whatsoever, irrespective of whether such reason or
any related fact or circumstance was known or ought to have been known to
Sogelease or any of its officers, employees, agents or advisers.
2.2 In addition to its liabilities under Clause 2.1 the Guarantor shall pay or
cause to be paid to Sogelease on demand interest at the Default Rate (both
before and after judgment) accruing on a day to day basis, and on the
basis of a three hundred and sixty (360) day year on each amount (or any
part thereof) for the time being due to Sogelease under this Guarantee and
Indemnity and unpaid from the date of demand on the Guarantor for payment
until payment is made (but excluding the day on which value for any
payment made is received by Sogelease) PROVIDED THAT interest shall not be
payable by the
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Guarantor under this Clause 2.2 if and to the extent that interest on the
same monies continues to accrue at the Default Rate under any of the
Guaranteed Agreements and is guaranteed hereunder.
2.3 The Guarantor hereby agrees that for the purposes of this Guarantee and
Indemnity, service by Sogelease on North Sea of a Termination Notice shall
constitute a valid and effective service of such notice and North Sea
shall be conclusively deemed to have become liable to make the payments
expressed in clause 13.6 (Payment on Termination) of the Sub-Lease to be
payable by North Sea to Sogelease upon service of such notice
notwithstanding that, as between North Sea and Sogelease, Sogelease is, by
virtue of any laws of England and Wales or any other applicable
jurisdiction relating to bankruptcy, insolvency or administration or any
similar laws, prohibited from serving such notice, repossessing the Rig or
commencing or continuing any proceedings or other legal process in England
and Wales or such other jurisdiction against North Sea.
3 DEMANDS AND CERTIFICATES
3.1 In order to make any demand under this Guarantee and Indemnity Sogelease
shall serve upon the Guarantor a notice in writing.
3.2 Any certificate from any director, officer or authorised person of
Sogelease or any agent of Sogelease contained in any demand, notice or
other communication given or made by Sogelease under this Guarantee and
Indemnity in relation to the amount of the Guarantor's liability in
relation to the Guaranteed Obligations or any other amount payable by the
Guarantor under this Guarantee and Indemnity shall be prima facie evidence
that the facts stated in such certificate are true and correct.
3.3 Without prejudice to Clauses 3.1 and 3.2, Sogelease may at any time and
from time to time issue further or corrected demands on the Guarantor in
respect of any Guaranteed Obligation.
4 TIME AND INDULGENCE
Sogelease shall be at liberty at all times and from time to time, whether
before or after any demand for payment under this Guarantee and Indemnity
and without discharging or in any way affecting the Guarantor's liability
hereunder, to do all or any of the following:
(a) terminate, amend or novate or agree to the termination, amendment or
novation (in accordance with the terms of the Guaranteed Agreements or as
otherwise agreed between the parties to the relevant Guaranteed Agreement)
of any of the Guaranteed Agreements in any manner whatsoever;
(b) grant to North Sea or to any other person any time or indulgence;
(c) deal with, exchange, renew, vary, release, modify or abstain from
perfecting or enforcing any securities, guarantees, or rights which
Sogelease may now or hereafter have from or against North Sea or any other
person in respect of the obligations of North Sea or such other person
under or in respect of the Guaranteed Agreements or the transactions
contemplated thereby;
(d) compound with, discharge or vary the liability of North Sea or any other
person or guarantor to North Sea or concur in, accept or vary any
compromise, arrangement or settlement with North Sea or any other person
or guarantor or concur in or vary any deed of arrangement or deed of
assignment for the benefit of creditors of any such person;
(e) omit to prove or fail to maintain any right of proof for or to claim or
enforce payment of any dividend or composition; and
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(f) take or omit to take any security from North Sea or any other person or
guarantor in respect of the obligations of North Sea under or in respect
of the Guaranteed Agreements or the transactions contemplated thereby,
whether contemporaneously with this Guarantee and Indemnity or otherwise.
5 CONTINUING SECURITY
5.1 This Guarantee and Indemnity is continuing security and accordingly:
(a) shall be binding on the Guarantor and its successors and assigns;
(b) the liability of the Guarantor under Clause 2 (Guarantee and Indemnity)
will continue even if:
(i) any discharge (including of any Guaranteed Obligation) is made in
part or is made in whole and is subsequently avoided or must be
restored on an insolvency, liquidation or in any way without
limitation; or
(ii) any arrangement is made on the faith of any payment, security or
other disposition, which is or are avoided or must be restored on an
insolvency, liquidation or in any way, without limitation;
(c) shall extend to the final balance of all sums payable by North Sea under
or in connection with the Guaranteed Agreements;
(d) shall be in addition to and not in substitution for or derogation of any
other security which Sogelease may at any time hold in respect of the
obligations of North Sea under or in respect of the Guaranteed Agreements
or the transactions contemplated thereby;
(e) shall not be discharged or in any way affected by any act taken or not
taken by Sogelease, or any omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of the Guarantor's
Obligations in whole or in part including, but not limited to,
(i) any time or waiver granted to, or composition with, North Sea or any
other person;
(ii) the release of any other person under the terms of any composition
or arrangement with any creditor of any member of the Guarantor's
Group or any other person;
(iii) the taking, variation, compromise, exchange, renewal or release of,
or neglect to perfect, take up or enforce, any rights against North
Sea or any other person or any non-presentation or non-observance of
any formality or other requirement in respect of any instrument;
(iv) any incapacity or lack of powers, authority or legal personality of
or dissolution or change in the members or status of North Sea or
any other person;
(v) any unenforceability, illegality or invalidity of any obligation of
any person (other than Sogelease or any of its successors, permitted
assignees and permitted transferees) under any Lease Document or any
other document or security, to the intent that the Guarantor's
Obligations shall remain in full force and the Guarantor's
guarantees under this Deed shall be construed accordingly, as if
there were no unenforceability, illegality or invalidity; or
(vi) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of North Sea under a
Lease Document
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resulting from any insolvency, liquidation or dissolution
proceedings or from any law, regulation or order so that each such
obligation shall for the purposes of the Guarantor's Obligations be
construed as if there were no such circumstances; and
(f) shall not be discharged or in any way affected by any merger with any
other person or persons or restructuring of any nature whatsoever of, or
any change of name by, North Sea, the Guarantor or any other person
(whether or not the same is consented to, or otherwise approved by,
Sogelease).
5.2 Until all amounts which may be owed now or in the future by North Sea
under or in connection with the Lease Documents have been irrevocably paid
in full, Sogelease (or any trustee or agent on its behalf) may, in the
case of any insolvency or liquidation of North Sea, do the following:
(a) decide not to apply or enforce any other moneys, or enforce any security
or rights held or received by Sogelease (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 or not against those amounts) and
the Guarantor shall not be entitled to the benefit of them unless and
until all amounts which may be owed now or in the future by Sogelease
under or in connection with the Lease Documents have been irrevocably paid
in full;
(b) hold in an interest-bearing suspense account any moneys received from the
Guarantor, or on account of the Guarantors' liability.
6 NO COMPETITION
6.1 From the date or dates upon which any demand is properly made against the
Guarantor under this Guarantee and Indemnity until such time as all
amounts which may be owed now or in the future by North Sea under or in
connection with the Lease Documents have been irrevocably paid in full and
Sogelease is entitled to retain, payment of the Guaranteed Obligations in
full, the Guarantor shall not by virtue of any payment made, security
realised or moneys received for or on account of the Guarantor's liability
under this Guarantee and Indemnity:
(a) be subrogated to any rights, security or moneys held, received or
receivable by Sogelease or any other Indemnified Person (or any trustee or
agent on its behalf) or be entitled to any right of contribution
concerning any payment made under this Guarantee and Indemnity; or
(b) in the event of any liquidation or insolvency of North Sea, make or
enforce any claim or right against North Sea or prove or vote as a
creditor of North Sea or its estate in competition with Sogelease or any
other Indemnified Person (or any trustee or agent on its behalf) in
respect of any payment by the Guarantor hereunder or in respect of any
outstanding actual or contingent liability between the Guarantor and North
Sea; or
(c) in the event of any liquidation or insolvency of North Sea, in competition
with Sogelease receive, claim or have the benefit of any payment,
distribution, security or guarantee from or on account of North Sea or
exercise any right of set off against North Sea, unless Sogelease
otherwise directs.
6.2 The Guarantor shall hold in trust and forthwith pay or transfer to
Sogelease any payment or distribution or benefit of security received by
it contrary to this Clause 6 or as directed by Sogelease. If for any
reason any such trust is invalid or unenforceable, the Guarantor shall pay
and deliver to Sogelease, as the case may be, any amount equal to the
payment or distribution which it would otherwise have been bound to hold
in trust for the same.
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7 GUARANTOR'S OBLIGATIONS
7.1 The Guarantor's obligations under this Guarantee and Indemnity are those
of primary obligor and exist irrespective of any total or partial
invalidity, illegality or unenforceability of any of the Guaranteed
Agreements. The Guarantor agrees as a separate and independent stipulation
that if any sum arising under any liability under the guarantees or the
indemnities contained herein is not or would not be recoverable on the
footing of a guarantee or an indemnity, whether by reason of any legal
limitation, disability or incapacity on or of North Sea or any other act
or circumstance whether known to Sogelease or not (including without
limiting the generality of the foregoing the bankruptcy, insolvency,
winding-up, administration, liquidation or reorganisation of North Sea,
the loss for any reason whatsoever by North Sea of its corporate status or
existence, or any other fact or circumstance which would or might
otherwise constitute a legal or equitable discharge of or defence to the
Guarantor), such sum shall nevertheless be recoverable from the Guarantor
as a sole and principal debtor and shall be paid or caused to be paid by
the Guarantor upon demand by Sogelease.
7.2 Sogelease shall not be obliged before making demand under or taking steps
to enforce this Guarantee and Indemnity:
(a) to do anything other than make a demand for payment in accordance with the
provisions of the relevant Guaranteed Agreement;
(b) to take action or obtain judgment against North Sea or any other person in
any court or tribunal;
(c) to make or file any claim in a bankruptcy or liquidation of North Sea or
any other person; or
(d) to exercise diligence against North Sea or any other person under any of
the Guaranteed Agreements or the transactions contemplated thereby.
7.3 The Guarantor waives and agrees not to enforce or claim the benefit of any
and all rights it has or may from time to time have as surety under any
applicable law which is or may be inconsistent with any of the provisions
of this Guarantee and Indemnity.
8 REPRESENTATIONS AND WARRANTIES
The Guarantor acknowledges that Sogelease has entered into the Lease
Documents in full reliance on representations and warranties by the
Guarantor in the terms set out in this Clause 8 and the Guarantor now
represents and warrants to Sogelease that the following statements are at
the date hereof true and accurate, namely that:
(a) it is duly incorporated, in good standing and validly existing under the
laws of the Cayman Islands, and has power to own its assets and carry on
its business as it is now being conducted;
(b) it has power to execute, deliver and perform its obligations, and to carry
out the transactions contemplated by, this Guarantee and Indemnity and all
necessary corporate and other action has been taken to authorise the
execution, delivery and performance of this Guarantee and Indemnity;
(c) its obligations under this Guarantee and Indemnity constitute its valid,
binding and legally enforceable obligations except as enforcement may be
limited by any relevant bankruptcy, insolvency, administration or similar
laws affecting creditors' rights generally and by general principles of
equity and subject to any relevant qualifications material in any of the
legal opinions to be delivered pursuant to the Lease Documents;
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(d) the execution, delivery and performance by it of this Guarantee and
Indemnity does not:
(i) contravene any applicable law or regulation or any order of any
governmental or other official authority, body or agency to which it
is subject in the Cayman Islands or the State of Texas or, so far as
it is aware, any judgment, order or decree of any court having
jurisdiction over it;
(ii) conflict with, or result in any breach of any of the terms of, or
constitute a default under, any agreement or other instrument to
which it is a party or any licence or other authorisation to which
it is subject or is binding upon it; or
(iii) contravene or conflict with its constitutional documents;
(e) it has not taken any action nor, so far as it is aware, have any steps
been taken or legal proceedings been started against it for winding-up,
dissolution or re-organisation or any analogous procedures in any other
jurisdiction, or for the appointment of a liquidator, receiver,
administrative receiver, or administrator, trustee or similar officer or
any analogous officer in any other jurisdiction of it or of any of its
assets;
(f) no authorisations, approvals, licences, consents, filings, registrations,
payment of duties or Taxes or notarisations are required in the Cayman
Islands (unless an original of the Guarantee and Indemnity is brought into
the Cayman Islands) or the State of Texas:
(i) for the performance and discharge of its obligations under this
Guarantee and Indemnity; and
(ii) in connection with the execution, delivery, validity, enforceability
or admissibility in evidence of this Guarantee and Indemnity.
(g) its obligations under this Guarantee and Indemnity rank at least pari
passu with all other present and future unsecured unsubordinated
obligations of the Guarantor other than obligations preferred by laws
applicable to corporations generally in the Cayman Islands;
(h) it is not, nor is it deemed for the purposes of any law to be, insolvent
or unable to pay its debts as they fall due;
(i) no litigation, arbitration or administrative proceedings are current or to
the best of its knowledge and belief after due enquiry pending or
threatened which if adversely determined might have a material adverse
effect on the Guarantor's financial condition or the Guarantor's
obligations under this Guarantee and Indemnity.
9 COVENANTS
The Guarantor hereby covenants with Sogelease that, so long as it remains
under any liability, actual or contingent, under this Guarantee and
Indemnity:
(a) it will provide to Sogelease such financial and other information relating
to the Group as is publicly available or as the Guarantor makes available
to its creditors generally including, without limitation, copies of the
quarterly unaudited and annual consolidated audited accounts of the Group
no later than sixty (60) days after the end of the quarterly period or one
hundred and twenty (120) days after the end of the annual period (as the
case may be) to which they relate;
(b) it will provide to Sogelease promptly, such further information as is
reasonably available to the Guarantor or any other member of the Group
regarding the financial condition and operations of the Guarantor or any
other member of the Group, as Sogelease may reasonably request as soon as
practicable after receipt of such request;
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(c) it will at all times, and from time to time, obtain, maintain, preserve
and keep in full force and effect any permits, consents, licences and
other authorisations governmental or otherwise as are from time to time
necessary for the performance of its obligations under this Guarantee and
Indemnity and comply with any conditions attached thereto;
(d) except with the prior written consent of Sogelease, it will not take or
accept any Encumbrance from North Sea or any other person in respect of
the Guarantor's liability under this Guarantee and Indemnity PROVIDED
HOWEVER THAT any such Encumbrance taken with or without such consent shall
be held by the Guarantor for the benefit of and on trust for Sogelease so
long as the Guarantor remains under any actual or contingent liability
under this Guarantee and Indemnity;
(e) North Sea, for so long as it has any duties, liabilities or obligations to
Sogelease under the Lease Documents will remain a subsidiary;
(f) its obligations hereunder do and will rank at least pari passu with all
other present and future unsecured unsubordinated obligations of the
Guarantor other than obligations preferred by laws applicable to
corporations generally in the Cayman Islands; and
(g) North Sea will be an Affiliate of the Guarantor.
10 PAYMENTS AND TAXES
10.1 All sums payable to Sogelease or any Indemnified Person pursuant to or in
connection with this Guarantee and Indemnity or any document contemplated
by or entered into pursuant hereto, shall be paid in full without any
set-off or counterclaim whatsoever and free and clear of all deductions or
withholdings whatsoever save only as may be required by law.
10.2 If any deduction or withholding is required by law in respect of any
payment due to Sogelease or any Indemnified Person pursuant to or in
connection with this Guarantee and Indemnity or any document contemplated
by or entered into pursuant hereto, the Guarantor shall:
(a) ensure or procure that the deduction or withholding is made and that it
does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment within the period for payment permitted by
applicable law of the full amount deducted or withheld to the relevant
Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is
required so that the net amount received by Sogelease or the Indemnified
Person in question after the deduction or withholding (and after taking
account of any further deduction or withholding which is required to be
made which arises as a consequence of the increase) shall be equal to the
amount which Sogelease or the Indemnified Person in question would have
been entitled to receive in the absence of any requirement to make a
deduction or withholding; and
(d) promptly deliver or procure the delivery to Sogelease or the Indemnified
Person in question of appropriate receipts evidencing the deduction or
withholding which has been made;
PROVIDED THAT if Sogelease determines, in its absolute discretion, that it
has received, realised, utilised and retained a Tax benefit by reason of
any deduction or withholding in respect of which the Guarantor has made an
increased payment under this Clause 10.2, Sogelease shall, provided it has
received all amounts which are then due and payable by the Guarantor under
any of the provisions of this Guarantee and Indemnity, pay to the
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Guarantor (to the extent that Sogelease can do so without prejudicing the
amount of that benefit and the right of Sogelease to obtain any other
benefit, relief or allowance which may be available to it) such amount, if
any, as Sogelease in its absolute discretion, shall determine will leave
Sogelease in no better and no worse position than Sogelease would have
been in if the deduction or withholding had not been required;
PROVIDED FURTHER THAT:
(i) Sogelease shall have an absolute discretion as to the time at which
and the order and manner in which it realises or utilises any Tax
benefit;
(ii) Sogelease shall not be obliged to disclose any information regarding
its business, Tax affairs or Tax computations or those of any member
of the Sub-Lessor Group;
(iii) if Sogelease has made a payment to the Guarantor pursuant to this
Clause 10.2 on account of any Tax benefit and it subsequently
transpires that Sogelease did not receive that Tax benefit, or
received a lesser Tax benefit, the Guarantor shall pay on demand to
Sogelease such sum as Sogelease may in its absolute discretion
determine being necessary to restore the after-Tax position of
Sogelease to that which it would have been had no adjustment under
this proviso (iii) been necessary;
(iv) Sogelease shall not be obliged to make any payment under this Clause
10.2 if, by doing so, it would contravene the terms of any
applicable law or any notice, direction or requirement of any
governmental or regulatory authority (whether or not having the
force of law).
10.3 If the Guarantor requests Sogelease, in writing, to make an appropriate
application in writing to an appropriate Tax authority pursuant to the
provisions of a double tax treaty for relief (whether in whole or in part)
in respect of any deduction or withholding on account of Taxes required by
law, Sogelease shall (provided that Sogelease is fully indemnified by the
Guarantor in terms satisfactory to Sogelease in respect of any costs,
expenses, losses or damage incurred or suffered by Sogelease in connection
therewith) take such action as the Guarantor shall reasonably request to
make such application to an applicable Tax authority. Sogelease shall be
under no obligation to appeal, contest or dispute any decision, ruling or
determination by a Tax authority that the provisions of the double tax
treaty in respect of which the application referred to in this Clause is
made do not apply to the deduction of withholding on account of Taxes in
respect of which that application is made. If Sogelease subsequently
obtains a repayment (whether in whole or in part) of such deduction or
withholding from that Tax authority in circumstances where North Sea has
made an increased payment under Clause 10.2 Sogelease shall, PROVIDED THAT
Sogelease has received all amounts which are then due and payable by the
Guarantor under any of the provisions of this Guarantee and Indemnity pay
to the Guarantor such amount of the repayment as Sogelease considers, in
its absolute discretion, will leave Sogelease in no worse position than
Sogelease would have been in if the deduction or withholding had not been
required.
11 ACKNOWLEDGEMENT AND DECLARATION
The Guarantor agrees, acknowledges and declares that subject to Clause 5
(Continuing Security):
(a) if any payment received by Sogelease in respect of monies owing or due and
payable by North Sea shall on the subsequent insolvency or liquidation of
the North Sea be avoided under any laws relating to insolvency or
liquidation, such payment shall not be considered as discharging or
diminishing the liability of the Guarantor under this Guarantee and
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Indemnity and this Guarantee and Indemnity shall continue to apply as if
such payment had at all times remained owing by North Sea;
(b) this Guarantee and Indemnity shall remain the property of Sogelease and
notwithstanding that all monies and liabilities due or incurred by North
Sea to Sogelease which are guaranteed hereunder shall have been paid or
discharged, Sogelease shall be entitled not to discharge this Guarantee
and Indemnity or any security held by Sogelease for the obligations of the
Guarantor hereunder until Sogelease has received, at the Guarantor's
expense, such legal opinions as Sogelease shall reasonably require in
terms satisfactory to Sogelease relating to those aspects of the laws of
any relevant jurisdictions concerning the ability to set aside any such
payment or discharge and in the event of bankruptcy, winding-up or any
similar proceedings being commenced in respect of North Sea Sogelease
shall be at liberty not to discharge this Guarantee and Indemnity or any
security held by Sogelease for the obligations of the Guarantor hereunder
for and during such further period as Sogelease may reasonably determine;
(c) if the Guarantor has not paid to Sogelease the full amount of all sums
then due under this Guarantee and Indemnity, Sogelease shall be entitled,
for the purpose of enabling Sogelease to ▇▇▇ North Sea and/or any other
guarantor of the liabilities which are guaranteed by this Guarantee and
Indemnity or for proving in its or their liquidation or in any similar
proceedings for any monies due and unpaid by North Sea to Sogelease, at
any time place and keep for such time as it may think fit any monies
received hereunder, or under any, of such other guarantees or from any
other person, to the credit of an interest bearing securities realised
account or accounts (the rate of interest being earned on such monies in
such account or accounts being the rate of interest extended at that time
to the other customers of Sogelease of similar creditworthiness at that
time as the Guarantor) without any obligation on the part of Sogelease to
apply the same or any part thereof in or towards the discharge of the
indebtedness and liabilities of North Sea to Sogelease; and
(d) it has received executed copies of, and is aware of the terms of, the
Guaranteed Agreements.
12 ASSIGNMENT
12.1 ASSIGNMENT BY SOGELEASE
Sogelease shall only be entitled to assign or otherwise transfer its
rights under this Guarantee to the same extent, and in the same manner, as
assignment of its rights under the Sub-Lease is permitted.
12.2 ASSIGNMENT BY GUARANTOR
The Guarantor may not assign, transfer or part with any of its rights or
obligations under this Guarantee and Indemnity without the prior written
consent of Sogelease which Sogelease may withhold in its absolute
discretion.
13 COSTS AND EXPENSES
The Guarantor shall indemnify Sogelease on a full indemnity basis, from
and against, and on demand reimburse Sogelease for all costs, charges and
expenses (and including any VAT payable in connection therewith), properly
(and prior to the occurrence of a Termination Event, reasonably) incurred
by Sogelease in connection with or incidental to the protection and
preservation of the security hereby constituted or the exercise or
enforcement of, or in endeavouring to exercise or enforce, any right or
remedy conferred upon Sogelease hereunder or by law including in
connection with any action brought by Sogelease to recover any payment due
hereunder, or relating to any breach of any covenant or obligation in this
Guarantee and Indemnity, whether or not any such action progresses to
judgment.
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14 MISCELLANEOUS
14.1 DELAY IN ENFORCEMENT, WAIVERS ETC.
All waivers of any right, power or privilege by either party hereto shall
be in writing signed by such party. No failure or delay on the part of
either party in exercising any power or right hereunder shall operate as a
waiver thereof nor shall any single or partial exercise of any such right
or power preclude any other or further exercise of any such right or
power. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law or in equity.
14.2 VARIATION
This Guarantee and Indemnity shall only be amended, modified or varied by
an instrument in writing executed by or on behalf of the parties hereto.
14.3 INVALIDITY
If any term or provision of this Guarantee and Indemnity or the
application thereof to any person or circumstance shall to any extent be
invalid or unenforceable under any applicable law neither the remainder of
this Guarantee and Indemnity or application of such term or provision to
persons or circumstances other than those as to which it is already
invalid or unenforceable shall be affected thereby nor shall the validity,
legality and enforceability of such term or provision under the laws of
any other jurisdiction be in any way affected or impaired.
14.4 NOTICES
(a) Any demand, consent, record, election or notice (a "NOTICE") required or
permitted to be given by either party to the other under this Guarantee
and Indemnity shall be in writing and sent by first class prepaid airmail
post or by facsimile transmission or delivered by hand addressed as
follows:
(i) if to the Guarantor to:
GlobalSantaFe Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: Legal Department
Facsimile: + ▇▇▇ ▇▇▇ ▇▇▇▇
(ii) if to Sogelease to:
Sogelease B.V.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: Head of Lease Administration
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
or in each case to such other person or address or facsimile number as one
party may, by not less than three (3) Business Days' notice, notify in
writing to the other party hereto.
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(b) Any Notice shall be deemed to have been given or received to or by the
party to whom it is addressed ten (10) days following posting, if posted
by first class prepaid airmail post and on delivery, if delivered by hand
and, in the case of a facsimile transmission, upon receipt by the sender
of a transmission report showing the Notice has been sent in its entirety.
The sender of a Notice by facsimile shall despatch an original of such
Notice in the first class airmail post with postage prepaid in an envelope
addressed to the recipient of the facsimile at its address stated in
Clause 14.4(a) but the facsimile Notice shall be the definitive Notice for
the purposes of this Guarantee and Indemnity.
14.5 APPLICABLE LAW
This Guarantee and Indemnity shall be governed by and construed, and
performance thereof shall be determined, in accordance with the laws of
England.
14.6 COUNTERPARTS
This Guarantee and Indemnity may be executed in several counterparts and
any single counterpart or set of counterparts, signed in either case by
all of the parties, shall be deemed to be an original, and all taken
together shall constitute one and the same instrument.
14.7 FURTHER ASSURANCES
The Guarantor agrees from time to time, and at the Guarantor's expense, to
do and perform such other and further acts and execute and deliver any and
all such other instruments as may be required by law or reasonably
requested by Sogelease to establish, maintain and protect the rights and
remedies of Sogelease and to carry out and effect the intent and purpose
of this Guarantee and Indemnity.
14.8 ENTIRE AGREEMENT
This Guarantee and Indemnity, in conjunction with the Lease Documents and
any letter agreements of even date herewith between the Guarantor and
Sogelease, constitutes the entire agreement between the parties hereto in
relation to this Guarantee and Indemnity and supersedes all previous
proposals, agreements and other written and oral communications in
relation thereto.
15 SUBMISSION TO JURISDICTION
15.1 For the exclusive benefit of Sogelease, the Guarantor hereby submits to
the non-exclusive jurisdiction of the courts of England with regard to
this Guarantee and Indemnity. Any legal action or proceedings with respect
to this Guarantee and Indemnity may be brought in the courts of England or
such other jurisdiction, as Sogelease may elect. By its execution and
delivery of this Guarantee and Indemnity, the Guarantor:
(a) waives any objections on the grounds of venue or forum non conveniens or
any similar grounds and agrees that legal proceedings in any one or more
jurisdictions shall not preclude legal proceedings in any other
jurisdiction with respect to this Guarantee and Indemnity;
(b) hereby accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts
with respect to this Guarantee and Indemnity;
(c) agrees that final judgment against it in any action or proceedings shall
be conclusive and may be enforced in any other jurisdiction with respect
to this Guarantee and Indemnity within or outside England by suit on the
judgment, a certified copy of which shall be conclusive evidence of the
fact and of the amount of its indebtedness; and
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(d) hereby consents generally in respect of any legal action or proceeding
arising out of or in connection with this Guarantee and Indemnity to the
giving of any relief or the issue of any process in connection with such
action or proceeding. including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of
its use or intended use) of any order or judgment which may be made or
given in such action or proceeding.
15.2 The Guarantor, in the case of the courts of England, hereby designates.
appoints and empowers WFW Legal Services Limited (quoting reference
DNO/10150.20001) at the address of its registered office for the time
being (currently ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇) to receive, for and on
behalf of it, service of process in such jurisdiction in any legal action
or proceedings with respect to this Guarantee and Indemnity. The Guarantor
undertakes to maintain an agent for the service of process in England at
all times whilst the Guarantor has any liability, actual or contingent,
under this Guarantee and Indemnity and if, for any reason such agent named
above or its successor shall no longer serve as agent of the Guarantor to
receive service of process in England the Guarantor shall promptly appoint
a successor in England and advise Sogelease thereof.
16 JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a judgment against
the Guarantor or the liquidation of the Guarantor or for any other reason,
any payment under or in connection with this Guarantee and Indemnity is
made or is recovered in a currency (the "OTHER CURRENCY") other than that
in which it is required to be paid hereunder (the "ORIGINAL CURRENCY")
then, to the extent that the payment (when converted at the rate of
exchange and after deducting commission on the date of payment or, in the
case of a liquidation, the latest date for the determination of
liabilities permitted by the applicable law) falls short of the amount
which is required to be paid under or in connection with this Guarantee
and Indemnity as aforesaid, the Guarantor shall as a separate and
independent obligation fully indemnify Sogelease on demand against the
amount of the shortfall: and for the purposes of this Clause 16 "RATE OF
EXCHANGE" means the rate at which Sogelease is able as at 11.00 a.m.
(London time) on the relevant date to purchase the Original Currency with
the Other Currency.
17 CONFIDENTIALITY
17.1 CONFIDENTIALITY. Each party hereto undertakes to the other party not to
disclose (without the other party's prior written consent) to any third
party any information relating to the transactions effected by the Lease
Documents, PROVIDED THAT the restrictions contained in this Clause 17.1
shall not apply to:
(a) any information which has become part of public knowledge or literature
(except through a breach of this Clause 17.1);
(b) any disclosure by Sogelease to any member of the Sub-Lessor Group or North
Sea to any member of the Guarantor's Group or to any of its agents or
advisers or, in the case of members of the Sub-Lessor Group or Guarantor's
Group, any of the applicable members' agents or advisers; or
(c) any disclosure to any actual or potential or assignee, PROVIDED THAT no
such disclosure may be made without the disclosing party first obtaining
from the other party concerned suitable undertakings as to
confidentiality; or
(d) to the extent required by law or applicable regulation (including
regulations of the US Securities Exchange Commission) or in connection
with any proceedings for enforcement
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of rights or benefits, or protection of rights or benefits, under any
Lease Document, or required by any governmental, regulatory or taxing
authority.
18 VAT
18.1 All payments due to Sogelease under this Guarantee and Indemnity are
calculated without regard to VAT which, if applicable, will be added at
the appropriate rate. If any VAT is due, the Guarantor shall pay to
Sogelease such VAT together with any interest and penalties thereon on
demand by Sogelease, such demand to be made no earlier than such date as
shall be reasonably necessary to enable the VAT to be paid on the last
date for the payment of such VAT to avoid incurring interest and
penalties. Sogelease shall promptly provide the Guarantor with a valid VAT
invoice in respect of each supply made by Sogelease under this Guarantee
and Indemnity and such invoice shall comply with all relevant laws and
regulations relating to VAT (and, in particular, Part III of the
Value-Added Tax Regulations 1995 (as amended)).
18.2 If the Guarantor pays Sogelease an amount in respect of VAT under Clause
18.1 and HM Customs & Excise ("CUSTOMS") rules that all or part of it was
not properly chargeable (an "INCORRECT VAT CHARGE") the party receiving
the ruling shall immediately notify the other of it and, Sogelease shall
pay to the Guarantor no later than five (5) Business Days after such
notification an amount equal to that Incorrect VAT Charge together with
any interest paid by Customs in respect of such Incorrect VAT Charge.
19 NATURE OF DOCUMENT
This Guarantee and Indemnity is a deed.
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IN WITNESS whereof the Guarantor and Sogelease have caused this Guarantee and
Indemnity to be duly executed and delivered, in the case of the Guarantor as its
deed the day and year first above written.
EXECUTED AND DELIVERED )
as a DEED by ) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
GLOBALSANTAFE CORPORATION )
in the presence of: )
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
SIGNED by )
for and on behalf of SOGELEASE B.V. ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of: )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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