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Exhibit 10.31
DATED THIS 16TH DAY OF OCTOBER 1995
BETWEEN
ANTAH DRILLING SDN. BHD.
AND
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(OFFSHORE BANKING UNIT, LABUAN)
***********************************
LOAN AGREEMENT
***********************************
XXXXXX XXXXXXXX & CO.,
ADVOCATES & XXXXXXXXXX,
XX. 0 XXXXXXX,
00000 XXXXX XXXXXX.
AND AT
16TH FLOOR,
WISMA HAMZAH-XXXXX XXXX,
XX. 0 XXXXX XXXXXX,
00000 XXXXX XXXXXX.
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THIS AGREEMENT is made the 16th day of October, 1995 Between
ANTAH DRILLING SDN. BHD. is a company incorporated in Malaysia with
its registered office at 9th Floor, Bangunan BNH, Off Xxxxx Xxxxxxxx,
Xxxxxxxxx Xxxxxxx; 00000 Xxxxx Xxxxxx (hereinafter called "the
Company") of the one part And THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, a corporation constituted by the Hongkong and
Shanghai Bank Ordinance 1866 and continued by The Hongkong and
Shanghai Banking Corporation Limited Ordinance, Chapter 70 of the
Laws of Hong Kong and having its Off-Shore Banking Unit in Labuan at
0, Xxxxx Xxxxxxx, 00000 Xxxxxx, Xxxxxxxx (hereinafter called "the
Bank") of the other part.
ARTICLE I
Recitals
Section 1.01 The Company
The Company has among its objects:-
(a) To carry on any of the business of prospecting, exploring,
drilling, boring, mining, digging for any buying, selling and in
any other manner dealing with natural gas, oil, petroleum or
related substances.
(b) To render services to the oil industry and other industries as
suppliers, contractors, consultants, advisers, technicians and
in any other capacity.
(c) To carry on the trade or business of engineers, founders,
smiths, metal workers, machinists and manufacturers.
Section 1.02 Property
The Company is the beneficial owner of two (2) platform
drilling/workover rigs, namely Rig No. 488 and Rig No. 489 (formerly
known as Rig No. 450) more particularly described in Schedule "A"
annexed hereto (hereinafter collectively called "the Property" and
individually as Rig No. 488 and Rig No. 489 respectively).
Section 1.03 Existing Charges
(a) The Company has under a Memorandum of Charge dated the 13th day
of December, 1988 (hereinafter called "the First Charge")
executed a first fixed charge over the Property in favour of
Intairdril Ltd. of c/o Pool Company, 00000 Xxxxxxxx, Xxxxxxx,
Xxxxx, Xxxxxx Xxxxxx of America (hereinafter called
"Intairdril").
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(b) The Company has, inter alia, pursuant to a loan agreement dated
the 28th day of April, 1995 and the debenture of the same date
(hereinafter called "the Second Charge") executed in favour of
the Bank a second fixed charge over the Property as security for
banking facilities granted by the Bank to the Company up to the
sum of United States Dollars Four million (USD4,000,000/-) for
principal together with interest thereon.
Section 1.04 Application for the Loan
Pursuant to the application made by the Company the Bank has
agreed to grant or extend to the Company a further loan of United
States Dollars Twenty-three million five hundred thousand
(USD23,500,000/-) (hereinafter called "the Loan") upon the security,
inter alia, of a charge over the Property and upon the terms and
conditions hereinafter set out.
Section 1.05 Consent of Intairdril
Intairdril has consented to the Company creating the charge
referred to in Section 1.04 hereof in favour of the Bank which shall
in point of security rank after the First Charge and the Second
Charge. The letter of consent of Intairdril dated the 10th day of
October, 1995 is attached hereto as Appendix 1.
NOW THIS AGREEMENT WITNESSETH as follows:-
ARTICLE II
Interpretation
Section 2.01 Definitions
(a) In this Agreement where the context so admits the following
words and expressions shall have the following meanings:-
Words Meanings
----- --------
"Advance" the principal amount of the drawing to be
made by the Company hereunder comprising
the Loan or as the context may require the
principal amount for the time being and
from time to time outstanding in respect of
such drawing.
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"Assignment" the assignment to be executed by the
Company in favour of the Bank whereunder
the Company assigns to the Bank all its
rights to the payments from EAL under EAL
Contract.
"Availability Period" the period commencing from the date of
execution of this Agreement until the
30th day of April, 1996 during which
the Loan shall be made available for
drawdown by the Bank to the Company and
shall be deemed to include any
extension granted by the Bank at its
absolute discretion.
"USD Sibor" Singapore Interbank Offer Rate of 1, 3
or 6 months option.
"Bank" THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, a corporation
constituted by the Hongkong and
Shanghai Bank Ordinance 1866 and
continued by The Hongkong and Shanghai
Banking Corporation Limited Ordinance,
Chapter 70 of the Laws of Hong Kong and
having its Off-Shore Banking Unit in
Labuan at 0, Xxxxx Xxxxxxx, 00000
Xxxxxx, Xxxxxxxx and includes persons
deriving title thereunder and its
successors-in-title and assigns.
"Bank Security collectively this Agreement, the
Documents" Debenture, the Assignment and such
other agreements executed pursuant to
this Agreement.
"Business Day" the day on which banks are open for
business in Kuala Lumpur.
"Company" ANTAH DRILLING SDN. BHD., a company
incorporated in Malaysia with its
registered office at 9th Floor,
Bangunan BNH, Off Xxxxx Xxxxxxxx,
Xxxxxxxxx Xxxxxxx, 00000 Xxxxx Xxxxxx
and includes persons deriving title
thereunder or its successors-in-title.
"Corporate Guarantee" the guarantee to be executed by ANTAH
HOLDINGS BERHAD referred to in Section
5.01 (h) hereof.
"Debenture" the debenture to be executed by the Company
in favour of the Bank creating a third
fixed charge over the Property as security
for the Loan and all other monies payable
by the Company to the Bank under the Bank
Security Documents
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referred to in Section 6.01(a).
"Drawdown Notice" a notice of advance substantially in the
form set out in Schedule "B" hereof
duly completed and signed on behalf of the
Company.
"EAL" ESSO AUSTRALIA LTD., (A.C.N. 000 018
566) a company having its registered
office at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx and includes
persons deriving title thereunder or
its successors-in-title.
"EAL Contract" Contract No. 00285866 to be entered
into between EAL of the one part and
the Company of the other part.
"First Charge" the Memorandum of Charge dated the 13th
day of December, 1988 executed by the
Company in favour of Intairdril Ltd.
over the Property.
"Second Charge" the debenture dated the 28th day of
April, 1995 executed by the Company in
favour of the Bank with the consent of
Intairdril creating a second charge
over the Property ranking after the
First Charge.
"Intairdril" INTAIRDRIL LTD., of c/o Pool Company, 00000
Xxxxxxxx, Xxxxxxx, Xxxxx, Xxxxxx Xxxxxx of
America and includes persons deriving title
thereunder or its successors-in-title.
"Loan" banking facilities by way of a term
loan of United States Dollars Twenty-
three million five hundred thousand
(USD23,500,000/-) for principal to be
granted by the Bank to the Company
pursuant to the provisions of this
Agreement.
"Pool Company" Pool Company, 00000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000 and includes
persons deriving title thereunder or its
successors-in-title.
"Prescribed Rate" the rate of interest applicable to the
Loan as stipulated in Section 7.02(b)
hereof and which expression shall
whenever the context so requires such
other rate as may at any time and from
time to time hereafter be substituted
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or varied by the Bank.
"Property" collectively the two (2) platform
drilling/workover rigs namely Rig No.
488 and Rig No. 489 (formerly known as
Rig No. 450) and any replacement Rig
thereto more particularly described in
Schedule "A" annexed hereto.
"Ringgit Malaysia" and the lawful currency of Malaysia.
the abbreviation "RM"
"such other agreements" such other agreements executed or to be
executed by the Company relating to this
Agreement apart from the Debenture and the
Assignment.
(b) Words importing the singular number includes the plural number.
(c) The headings and sub-headings used in this Agreement are inserted for
purposes of convenience only and shall not affect the construction of this
Agreement.
ARTICLE III
Representations and Warranties
Section 3.01 Representations and Warranties
The Company hereby represents and warrants to the Bank as follows:-
(a) that the Company is a company duly incorporated and validly existing under
the laws of Malaysia as a separate legal entity and has full power and
authority to own its assets and carry on business as it is now being
carried on;
(b) that the Company has the power to incur borrowings and or otherwise
utilise the Loan and to execute, deliver and perform the terms of the Bank
Security Documents and has taken all necessary corporate, shareholders,
creditors and other action to authorise the acceptance, execution,
delivery and performance of the Bank Security Documents;
(c) that the Company has obtained the consent of Intairdril to the execution
of the Bank Security Documents by the Company and the creation of a third
charge over the Property ranking in after the First Charge in its favour
and the Second Charge in favour of the Bank;
(d) that the Company is the beneficial owner and has title
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to the Property;
(e) that the Bank Security Documents constitute the legal, valid and binding
obligations of the Company in accordance with the terms contained therein;
(f) that the execution, delivery and performance of the Bank Security
Documents by the Company will not exceed the power granted to it by, or
violate the provisions of (1) any law or regulation or any order or decree
of any governmental authority, agency or court to which the Company is
subject or (2) its Memorandum and Articles of Association or other
undertaking or instrument to which the Company is a party or which is
binding upon it or any of its assets, and (3) will not result in the
creation or imposition of, or any obligation to create or impose, any
mortgage, lien, pledge or charge on the Property pursuant to the
provisions of any such other undertaking or instrument (other than the
existing charges in favour of Intairdril and the Bank respectively
referred to in Section 1.03 hereof);
(g) that all consents, approvals and authorisations of any relevant authority
which are required on the part of the Company for or in connection with
the acceptance, execution, delivery, performance legality or
enforceability of the Bank Security Documents have been obtained and are
in full force and any conditions contained therein or otherwise applying
thereto have been complied with;
(h) that the Company is not in default under any agreement to which it is a
party or by which it may be bound and no litigation, arbitration or
administrative proceedings are presently current or to the best of its
knowledge pending or to the best of its knowledge threatened which
default, litigation, arbitration or administrative proceedings, as the
case may be, might materially affect the solvency of the Company or might
impair the Company's ability to perform its obligations under the Bank
Security Documents;
(i) that none of its directors managers agents or guarantors nor any of their
respective spouses, parents or children are in the employment of the Bank
so as to result in the availment of the Loan by the Company hereunder
contravening Section 62 of the Banking and Financial Xxx 0000;
(j) that the Company has filed all tax returns which the Company is required
by law to file and has paid all taxes which are due and payable,
assessments fees and other governmental charges assessed against it or
upon any of its properties assets income or franchises or has provided
adequate reserves for any tax,
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assessment, fees or other governmental charges which payment is being
contested in good faith;
(k) that the Company is not in default howsoever under the First Charge or the
Second Charge nor in the payments or observance of any of its obligations
for borrowed monies; and
(1) that there are no winding up proceedings against the Company and the
Company has not commenced any action for voluntary winding-up of the
Company.
Section 3.02 Continuing nature of Warranties and Representations
The Company shall be deemed to represent and warrant to the Bank whenever
the Company shall request for any advances under the Loan (a) that the
representations and warranties contained in Section 3.01 are true and accurate
in all respects as if made on such date and (b) that no event of default, and
no event which with giving of notice or the passing of time would constitute an
event of default under this Agreement has occurred and is continuing.
Section 3.03 Truth and correctness of Representations and Warranties
The truth and correctness of all the matters stated in the representations
and warranties under Section 3.01 hereof shall form the basis of the Bank's
commitment to make or continue to make available the Loan to the Company. If
any such representations and warranties made shall at any time hereafter be
found to have been incorrect in any material respect when made then and in such
event and notwithstanding anything to the contrary contained herein or under
the Bank Security Documents, the Bank shall have the right at its absolute
discretion to review, suspend, recall or terminate the Loan or any part
thereof.
ARTICLE IV
Provisions Relating to Loan
Section 4.01 Loan
The Bank relying upon the representations and warranties set out in
Section 3.01 hereof and subject to the Conditions Precedent set out in Section
5.01 hereof having been duly satisfied to the satisfaction of the Bank hereby
confirms that it will grant to the Company the Loan and the Company hereby
accepts the Loan on the terms and conditions herein set out.
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Section 4.02 Purpose
The Loan shall be utilised by the Company to finance the re-fabrication
and mobilization costs of Rig No. 489 (formerly known as Rig No. 450) and the
acquisition of associated equipments for Rig No. 489.
ARTICLE V
Conditions Precedent
Section 5.01 Conditions Precedent
The obligation of the Bank to make the Loan available to the Company shall
be subject to the fulfilment in manner satisfactory to the Bank, of the
following conditions precedent:-
(a) the receipt by the Bank from the Company the approval of Bank Negara
Malaysia for the Company to avail the Loan from the Bank in United States
Dollars;
(b) the Bank is satisfied that as from the date when the Company first applied
for the Loan there has been no material alterations or changes in the
constitution condition business or other affairs of the Company which
could or might adversely affect the decision of the Bank to proceed with
the granting of the Loan or any part thereof;
(c) the Memorandum and Articles of Association of the Company shall be in form
and substance satisfactory to the Bank and there shall have been obtained,
or there shall have been made provision satisfactory to the Bank for
obtaining, all governmental, corporate, creditors', shareholders' or other
necessary licenses, approvals and consents for the borrowing hereunder and
or utilisation of the Loan by the Company, the carrying on the business of
the Company and the due execution delivery and performance of the Bank
Security Documents;
(d) the Bank shall have received from the Company the documents listed below:-
(i) a certified true copy of the Memorandum and Articles of Association
of the Company;
(ii) a certified true copy of the Company's Board of Directors' Resolution
authorising the borrowings and or utilisation of the Loan and
creation and execution of the Bank Security Documents;
(iii) a list setting out the full names and specimen signatures of the
officers of the Company who have been duly authorised to operate or
otherwise
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utilise the Loan;
(iv) a certified true copy of the Certificate of Incorporation of the
Company;
(e) receipt from Intairdril its written consent to the Company availing the
Loan on the terms of this Agreement and executing the Bank Security
Documents;
(f) the Bank shall have received from the Company the documents listed below:-
(i) a certified true copy of the Memorandum and Articles of Association
of Antah Holdings Berhad, a company incorporated in Malaysia with its
registered office at 9th Floor, Bangunan BNH, Off Xxxxx Xxxxxxxx,
Xxxxxxxxx Xxxxxxx, 00000 Xxxxx Xxxxxx (hereinafter called "Antah
Holdings") and Pool Company ;and
(ii) a certified true copy of the Board Resolution of Antah Holdings
authorising the execution of the Corporate Guarantee in the format
required by the Bank by a specifically named representative
whereunder Antah Holdings will guarantee all payments due from the
Company to the Bank under the Bank Security Documents in proportion
to its shareholding in the Company up to the principal limit of
USD11,985,000/- of the Loan;
(iii) a certified true copy of the Board Resolution of Pool Company
authorising the execution of the Agreement to Guarantee incorporating
the Guarantee in the format required by the Bank by a specifically
named representative whereunder Pool Company will guarantee all
payments due from the Company to the Bank under the Bank Security
Documents in proportion to its shareholding in the Company whether
held directly or indirectly up to the principal limit of
USD11,515,000/- of the Loan;
(g) the Bank Security Documents shall have been executed by the Company and
duly registered with such registries as the Bank may deem necessary or
expedient;
(h) the Corporate Guarantee referred to in (f) (ii) above shall have been duly
executed by Antah Holdings and stamped;
(i) the agreement made between Pool Company of the one part and the Bank of
the other part pertaining to the guarantee referred to in (f) (iii) above
shall have been duly executed and stamped; and
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(i) the Bank is satisfied that the EAL Contract covers the period for
refurbishment of Rig No. 489 (formerly known as Rig No. 450) and
incorporates provisions sufficient to compensate the Company for damages
arising from termination of the EAL Contract.
ARTICLE VI
SECURITY
Section 6.01 Security
The Company shall in addition to this Agreement do or cause the following
to be done simultaneously with the execution of this Agreement:-
(a) execute the Debenture over the Property as beneficial owner creating a
third fixed charge over the Property to secure the payment of all monies
and liabilities to be paid and intended to be hereby secured under the
Bank Security Documents (including all expenses and charges arising out of
or in connection with the acts or matters hereunder) and so that the
charge so created shall be a continuing security for its duration and
shall in point of security rank after the First Charge and the Second
Charge
(b) execute the Assignment in favour of the Bank in the form as required by
the Bank whereunder the Company shall assign to the Bank all its rights to
payments under the EAL Contract;
(c) cause Antah Holdings to execute a Corporate Guarantee in the form as
required by the Bank whereunder Antah Holdings irrevocably guarantees the
repayment of the sums due to the Bank from the Company under the Bank
Security Documents up to the principal sum of United States Dollars Eleven
million nine hundred and eighty five thousand (USD11,985,000/-) of the
Term Loan together with interest and costs;
(d) cause Pool Company to enter into an agreement with the Bank in the form as
required by the Bank whereunder Pool Company undertakes irrevocably to
guarantee the repayment of the sums due to the Bank from the Company under
the Bank Security Documents up to the principal sum of United States
Dollars Eleven million five hundred and fifteen thousand (USD11,515,000/-)
of the Term Loan together with interest and costs;
Section 6.02 Restriction against other charges
(a) The Company hereby declares that other than the First Charge created in
favour of Intairdril and the Second Charge
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created in favour of the Bank there is no mortgage charge debenture pledge lien
or other form of security upon the Property or assets secured by the Bank
Security Documents having priority rights or pari passu rights with the Bank
Security Documents.
(b) The Company shall not during the subsistence of the Bank Security
Documents without the prior consent in writing of the Bank execute any form of
charge mortgage debenture (whether fixed or floating) pledge or lien in respect
of any of the assets of the Company secured under the Bank Security Documents.
(c) The Bank Security Documents shall be without prejudice to any security
already given by the Company to the Bank or any security which may hereafter be
given to it by the Company whether the same be for securing repayment of the
principal amount and interest thereon or any part thereof or any other money
convenanted to be paid herein and whether such security is taken as additional
or collateral security or otherwise howsoever.
Section 6.03 Security to be Additional
The security created under the Bank Security Documents is in addition to
any other security or securities which the Bank may now or from time to time
hold or take from the Company.
Section 6.04 Procedure on notice of further charge
If the Company shall execute or create any further or subsequent mortgage
charge lien or incumbrance fixed or floating over or otherwise deal with any of
the Property secured under the Bank Security Documents or any part or parts
thereof in favour of any other person of which the Bank receives notice either
actual or constructive the Bank may on receiving such notice forthwith open a
new or separate account with the Company in the books of the Bank and if the
Bank does not in fact open such new or separate account the Bank shall
nevertheless be deemed to have done so at the time when the Bank received or
was deemed to have received such notice (hereinafter called "the time of
notice") and as from and after the time of notice all payments in account made
by the Company or by or on behalf of the Company to the Bank shall
(notwithstanding any legal or equitable rule of presumption to the contrary) be
placed or deemed to have been placed to the credit of the new or separate
account so opened or deemed to have been opened as aforesaid and be in
reduction of amounts owing and incurred by the Company to the Bank after the
time of notice and shall not go in reduction of the amount owing by the Company
to the Bank at the time of notice. PROVIDED ALWAYS that nothing in this
paragraph contained shall prejudice the security which the Bank otherwise would
have had under the Bank Security Documents for the payment of the monies costs
charges and expenses herein referred to notwithstanding that the same may
become due or owing or be incurred after the time of notice or be construed as
an admission by the Bank that the said subsequent mortgage charge
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lien or encumbrance is valid and affecting the security and PROVIDED ALWAYS
that nothing in this Clause contained shall be deemed to be a waiver of the
Bank's rights against the Company for breach of the covenant not to execute or
create any further mortgage charge pledge, lien or other incumbrance without
the prior written consent of the Bank. PROVIDED FURTHER this Clause shall not
apply to statutory liens created in the Company's ordinary course of business
and such liens are discharged within thirty (30) days after final adjudication.
Section 6.05 Upstamping of the Debenture
In the event the total monies and liabilities due and owing to the Bank
under the Bank Security Documents shall at any time exceed the principal limit
or the limit for which the security created shall for the time being stamped to
secure, the Bank shall be at liberty at any time to upstamp the security
created under the Debenture for the excess amount and such monies paid and
expended by the Bank shall be repayable on demand by the Company and until paid
be debited to the Company's loan or current account or a disbursement/suspense
account to be opened by the Bank for the purpose and shall be secured under the
Debenture in addition to the monies hereunder secured with the same priority
and with interest at the relevant applicable rate.
Section 6.06 Liens and other securities not affected
Nothing herein contained shall prejudice or affect any lien to which the
Bank is entitled or any other securities which the Bank may at any time or from
time to time hold for or on account of the monies secured under the Bank
Security Documents nor shall anything herein contained operate so as to merge
or otherwise prejudice or affect any xxxx note guarantee mortgage or other
security which the Bank may for the time being have for any money intended to
be hereby or otherwise secured or any right or remedy of the Bank under the
Bank Security Documents.
Section 6.07 Not to remove property
The Company shall not throughout the continuance of this security remove
the Property from where they are now or to which they may be hereafter removed
without the prior written consent of the Bank save and except in the ordinary
course of its business.
Section 6.08 Powers of Inspection of the Bank
The Company shall at all times permit the Bank or any person authorised by
the Bank to enter into any premises occupied by the Company to inspect all
books, records and documents of title at any other office, branch or place of
business or elsewhere by any authorities or persons so far as such books
records and documents of title relate to or affect the Property
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of the Company hereby charged, and to value the Property. Any expense incurred
by such authorised persons shall be borne by the Company.
Section 6.09 Transfer of Security
The Bank shall be at liberty at any time with the consent or concurrence
of and with notice to the Company transfer the benefit of the security under
the Bank Security Documents to any third person and the costs and expenses of
the Bank and the transferee of and incidental to such transfer shall be paid by
the Bank save and except that if such assignment or transfer is necessitated as
a result of a change in law or directions from Bank Negara Malaysia or other
relevant authorities (whether or not having the force of law) the costs and
expenses of the Bank and the assignee or transferee of and incidental to such
assignment or transfer shall be paid by the Company, and any recital or
statement in the document of transfer of the amount then due to the Bank under
and by virtue of the Bank Security Documents shall be conclusive and binding on
the Company saving manifest errors only.
ARTICLE VII
Drawdown of the Loan
Section 7.01 Drawdown of the Loan
(a) If:-
(1) all Conditions Precedent in Section 5.01 shall have been complied
with to the satisfaction of the Bank;
(2) not later than 12.00 noon three (3) Business Days prior to the
proposed date of drawdown the Bank shall have received from the
Company a duly completed Drawdown Notice requesting for an Advance;
(3) the Drawdown Notice has been received by the Bank from the Company
prior to the expiry of the Availability Period;
(4) the Advance requested for shall be for a sum not less than United
States Dollars Five hundred thousand (USD500,000/-) and in multiples
of United States Dollars One hundred thousand (USD100,000/-);
(5) the amount to be advanced is stated in the Drawdown Notice and
supported with the relevant certified invoices;
(6) all representations and warranties in Section
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3.01 would be correct in all respects if repeated on the proposed
drawdown date by reference to the circumstances then prevailing;
(7) no Event of Default has occurred and is continuing on or before the
proposed drawdown date or in the reasonable opinion of the Bank will
occur as a result of making the Advance;
(8) no extraordinary circumstances or change of law or other governmental
action has occurred which in the reasonable opinion of the Bank make
it improbable that the Company will be able to observe and perform
its covenants and obligations hereunder;
then, subject to the provisions of this Agreement, the Bank will make the
requested Advance to the Company.
(b) Drawdown Notice
A Drawdown Notice once received by the Bank is irrevocable and, subject to
the provisions of this Agreement shall be binding on the Company
accordingly.
Section 7.02 Interest
(a) Interest Periods
Interest shall be calculated and payable on the Advance by reference to
each interest period. The interest periods shall begin on the drawdown
date for the relevant interest period and shall be revised at the
commencement of each subsequent chosen interest period until the Loan is
repaid in full.
(b) Prescribed Rate
Until Rig No. 489 is delivered to and arrives in Australia he rate of
interest payable on the Advance for each interest period on 1, 3 or 6
months option shall be one per cent (1%) per annum above USD Sibor.
Thereafter the rate of interest payable for each interest period on 1, 3
or 6 months option shall be one per cent (1%) above USD Sibor divided by
0.90.
(c) Payment of Interest
The Company shall pay to the Bank in arrears monthly the unpaid interest
accrued on the Advance or the overdue sums referred to in (d) below to
which it relates at the Prescribed Rate.
(d) Default Interest
If default is made in the payment of any sum payable
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to the Bank under the Bank Security Documents when due as provided for in
the Bank Security Documents the Company shall pay interest on such overdue
amount from time to time outstanding for the period beginning on the due
date and ending on the date of its receipt by the Bank (both before and
after Judgment) interest at the rate per annum (as determined by the Bank)
equal to the sum of:-
(i) one per centum (1%); and
(ii) the Prescribed Rate.
(e) Variation of the Prescribed Rate
Notwithstanding the provisions relating to the Prescribed Rate and/or
overdue interest set out in (b) and (d) above payable in respect of the
Loan the Bank shall be entitled to vary at its discretion the Prescribed
Rate by giving to the Company at any time written notice of such intention
and the new rate of interest shall be payable as from the dates specified
in the said notice.
(f) Capitalisation of interest
(i) Subject to the provisions of (g) below the interest on any principal
money for the time being owing including capitalised interest shall
at the end of each interest period be capitalised and added for all
purposes to the principal sum then owing and shall thenceforth bear
interest at the Prescribed Rate and be secured and payable
accordingly whether before or after any court order or judgment or
demand for payment has been made on the Company and all the covenants
and conditions contained in or implied by these presents and all
rules of law or equity in relation to the said principal sum and
interest shall equally apply to such capitalised arrears of interest
and to interest on such arrears.
(ii) The right of the Bank to capitalised interest hereunder shall subsist
notwithstanding the issuance of a notice of demand by the Bank to the
Company and/or the cessation of the banker-customer relationship
between the Bank and the Company.
(g) Ascertaining Limits
For the purpose of ascertaining whether the limit of the principal sum
intended to be hereby secured has been exceeded or not, all accumulated
and capitalised interest shall be deemed to be interest and not principal
sum.
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ARTICLE VIII
Repayment
Section 8.01 Repayment
Subject to the Bank's right of repayment on demand the Company shall repay
the principal amount of the Loan to the Bank in the following manner:-
(a) United States Dollars Ten million two hundred thousand (USD10,200,000/-)
upon receipt of United States Dollars Ten million two hundred thousand
(USD10,200,000/-) mobilization fees from EAL which is to be credited to
the Company's account with the Bank or within sixty (60) days from the
date of Rig No. 489 (formerly known as Rig No. 450) is placed on the
platform in the Bass Straits in Australia or by the 31st day of August,
1996, whichever is the earlier;
(b) the balance by thirty-five (35) monthly instalments of United States
Dollars Three hundred and one thousand eight hundred and six
(USD301,806/-) each, the first of such instalment payment to commence one
(1) month of the date of repayment made under (a) above and a final 36th
instalment of United States Dollars Two million seven hundred and
thirty-six thousand seven hundred and ninety (USD2,736,790/-) comprising
of:-
(i) United States Dollars Three hundred and thirty- five thousand
(USD335,000/-) being demobilization fees to be received from EAL;
(ii) instalment of United States Dollars Three hundred and one thousand
seven hundred and ninety (USD301,790/-); and
(iii) United States Dollars Two million one hundred thousand
(USD2,100,000/-) being contingent expenditure.
All repayments will be firstly applied towards accrued but unpaid interest
and default interest and secondly towards the unpaid principal of the Loan
outstanding.
Section 8.02 Arrangement Fee
The Company shall pay to Hongkong Bank Malaysia Berhad, Kuala Lumpur Main
Office, Xx. 0 Xxxxx Xxxxxx, 00000 Xxxxx Xxxxxx an arrangement fee of zero point
one per cent (0.1%) of the Loan amounting to United States Dollars Twenty-three
thousand five hundred (USD23,500/-).
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Section 8.03 Indemnity
In the event that the Bank is required to refund to EAL any
over-payment(s) paid to the Bank under the Assignment by reason of EAL having
erroneously made such over-payment(s), the Company hereby undertakes to
indemnify and keep indemnified the Bank against the total amount of such
refund(s) made by the Bank to EAL, and the Company shall upon demand being made
by the Bank forthwith pay to the Bank such total amount together with interest
thereon at the Prescribed Rate. And until demand as aforesaid is made, the
Company shall pay the said total amount with interest together with the total
outstanding amount of the Loan in monthly instalments in accordance with
Section 8.01 hereof.
Section 8.04 Prepayment
The Company shall be permitted to prepay the Advance in whole or in United
States Dollars One hundred thousand (USD100,000/-) or in multiples thereof on
any interest payment date PROVIDED THAT:-
(a) the Bank shall have received written notice of the intended prepayment at
least thirty (30) clear Business Days prior to the prepayment date; or
(b) the Bank shall have received zero point seven five per centum (0.75%) flat
on the amount to be prepaid.
And every amount prepaid shall not be available for redrawing thereafter
and shall be deemed to be prepayment and shall accordingly be applied in
reducing the repayment instalment under Section 8.01 above in inverse order of
maturity.
Section 8.05 Notice of Prepayment Irrevocable
Notice of intended Prepayment once having been given by the Company shall
be irrevocable and it shall be obligatory on the Company to make the prepayment
in accordance with such notice.
ARTICLE IX
Covenants
Section 9.01 Particular Covenants
The Company hereby covenants with the Bank that it will at all times
during the continuance of this Agreement:-
(a) carry on, conduct and operate its business now carried on by the Company
with due diligence and efficiency in accordance with sound and proper
financial, business
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and industrial standards and practices;
(b) keep full and particular accounts of the carrying on of its said
businesses and cause the same to be properly posted up to date and confirm
to the Bank within one hundred and twenty (120) days from the end of each
half year of each financial year copies of complete financial statements
of the Company certified by an officer of the Company in such form (always
in accordance with generally accepted accounting principles) as the Bank
may from time to time determine, and further, as soon as available, but in
any event within one hundred and eighty (180) days after the end of each
financial year of the Company, forward to the Bank two (2) copies of its
balance sheet, profit and loss account and report audited and certified by
a qualified independent auditor, stating accurately, in accordance with
generally accepted accounting principles or standards, the financial
condition of the Company;
(c) upon request by the Bank and in any case not later than one (1) calendar
month thereafter supply the Bank with statements in writing on its monthly
sales and receivables;
(d) give to the Bank or any officer thereof all information reasonably
required by the Bank in connection with the Company's said businesses and
render to the Bank statements thereof;
(e) punctually pay all rates fees and other charges payable by the Company in
respect of the Property in default whereof the Bank may in its absolute
discretion pay the same and all monies expended by the Bank together with
interest thereon at the Prescribed Rate from the date of such payments
shall on demand be repaid and until paid shall be debited to the Company's
account and shall be secured under the Bank Security Documents in addition
to the monies hereunder secured with the same priority and with interests
at the relevant applicable rate;
(f) keep the Property secured by the Bank Security Documents in good order and
condition;
(g) inform and keep informed the Bank of any legal proceedings litigations
claims (of a material nature) involving the Company and any of its
subsidiaries;
(h) forthwith inform the Bank of any change of auditors;
(i) keep in full force and effect all or any governmental approval
authorisation licence or permit of any nature whatsoever which may now or
hereafter be required under any written law decree or regulation relating
to
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the performance of its obligations under the Bank Security Documents;
(j) inform the Bank of any material change in its accounting policy;
(k) promptly inform the Bank of any potential change in its major
shareholders;
(1) promptly inform the Bank of any change in its directors;
(m) keep the Bank indemnified against all actions, suits, claims and expenses
which may be incurred, sustained on account of the non-payment of any
property tax, rates, charges, impositions or any part thereof or the
breach of or non-performance of the covenants, obligations and agreements
contained herein; and
(n) provide the Bank promptly true and correct copies of all monthly invoices
and any amendments thereto declared to EAL.
Section 9.02 Restrictive Covenants
The Company hereby covenants that during the continuance of this Agreement
it shall not without the consent of the Bank in writing first had and obtained
(such consent however shall not be unreasonably withheld):-
(a) add to delete vary or amend its Memorandum and Articles of Association in
any manner which would be inconsistent with the provisions of the Bank
Security Documents or change its financial year or the nature of its
present business or sell transfer or otherwise dispose of all or a
substantial part of its assets or undertake or permit any merger or
consolidating;
(b) incur, assume, guarantee or permit to exist any indebtedness for borrowed
monies except:-
(i) that indebtedness secured under the First Charge and the Second
Charge;
(ii) the principal sum hereunder;
(iii) existing guarantees and future guarantees in favour of the relevant
authorities for essential services; and
(iv) short term debts incurred in respect of money borrowed from licensed
banks or other financial institutions in the ordinary course of
business.
For the purpose of this paragraph, a short term
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debt is deemed to be any debt payable on demand or maturing by its
terms within twelve (12) months after the date on which it was
originally incurred;
(v) debt to shareholders incurred for money borrowed to pay for materials
or services supplied to the Company or to service debts of the
Company;
(c) create or permit to exist any lien on any asset of the Company except any
tax or other statutory lien, provided that such lien shall be discharged
within thirty (30) days after final adjudication. For the purposes of this
paragraph the expression "lien" includes mortgages pledges charges
privileges and priorities of any kind and the expression "asset" includes
any revenues and property movable and immovable of any kind;
(d) make any alteration to the general nature of its business existing on the
date of this Agreement whether by acquisition or otherwise which would
constitute a substantial alteration to the business carried on at such
date by the Company;
(e) make any payment to its shareholders by way of dividend or distribution of
profits or return of capital howsoever;
(f) make any prepayment or repayment in respect of any debt for borrowed
moneys or loans advanced to the Company by its shareholders, third parties
or related companies as defined under Section 6 of the Companies Xxx 0000
PROVIDED ALWAYS this Clause shall not apply to advances made on behalf of
the Company by related companies for materials and services and PROVIDED
FURTHER that so long as the Company is not in default of any terms and
conditions under the Bank Security Documents and/or the Second Charge, the
Company may make repayments of outstanding sums to its shareholders;
(g) save as provided by any provisions herein decrease or in any way
whatsoever alter the authorised or issued capital of the Company whether
by varying the amount structure or value thereof or the rights attaching
thereto or convert any of its share capital into stock or by consolidating
dividing or sub-dividing all or any of its shares except that the Company
may increase its capital without the consent of the Bank on condition that
such increase shall not at any time contravene any laws, directives or
guidelines relating to loans or credit facilities granted to companies in
Malaysia;
(h) enter into any transaction with any person firm or
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company except in the ordinary course of business on ordinary commercial
terms and on the basis of arm's length arrangements;
(i) permit or suffer any material change in its control and ownership;
(j) enter into any partnership, profit-sharing or royalty agreement or other
similar agreement whereby the Company's income or profits are or might be
shared with any person(s), firm(s) or company or companies or enter into
any management contract or similar arrangement whereby its business or
operations are managed by any other person(s), firm(s) or company or
companies.
ARTICLE X
Events of Default
Section 10.01 Events of Default
All monies secured under the Bank Security Documents shall become
immediately repayable on demand being made by the Bank or without demand at the
discretion of the Bank in any of the following events:-
(a) if default is made in payment of any monies payable under the provisions
of the Bank Security Documents and payment of the same is not made within
ten (10) days of date of notice of such default being given to the
Company;
(b) if the Company shall without the consent in writing of the Bank stop
payment to creditors or if the Company ceases or threatens to cease to
carry on its business or be unable to pay its debts or disposes or
threatens to dispose off the whole or part of its assets or undertakings;
(c) if a receiver or other similar officer is appointed of the whole or part
of the Company's assets or undertakings or a distress or execution is
levied upon or issued against any of the property of the Company;
(d) if a petition is presented or an order is made or an effective resolution
is passed or analogous proceedings are taken for winding-up the Company
save for the purposes of an amalgamation, merger or reconstruction the
terms whereof have previously been approved by the Bank;
(e) if a Receiver and Manager of the Company's undertaking or property or any
part thereof is appointed;
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(f) other than the default set out under (a) above the Company commits a
breach of any covenant or stipulation herein contained and on its part to
be observed or performed and such breach is not rectified within thirty
(30) days of date of notice of such breach given to the Company;
(g) if any other indebtedness for borrowed monies of the Company becomes
capable in accordance with the relevant terms thereof of being declared
due prematurely by reason of a default by the Company or the Company fails
to make any payment in respect thereof on the due date for such payment or
if due on demand when demanded or the security for any such indebtedness
becomes enforceable;
(h) the Company's entry into any compromise composition or scheme of
arrangement with its creditors or any assignment for the benefit of
creditors;
(i) if any representation or warranty made in connection with the execution
and delivery of this Agreement or in connection with any request for
disbursement hereunder shall be found to have been incorrect or misleading
in any material aspect when made and shall continue to be incorrect or
misleading for a period of thirty (30) days after written notice thereof
shall have been given to the Company; and
(j) if any government or relevant authority shall have condemned,
nationalised, seized or otherwise expropriated all or any substantial part
of the property or other assets of the business or operation of the
Company or shall have taken any action for the winding-up of the Company
or any action that would prevent the Company or their officers from
carrying on the operation of their business or a substantial part thereof.
ARTICLE XI
Remedies Of The Bank And Appointment of Receiver and/or
Manager
Section 11.01 Remedies of the Bank
At any time after the monies hereby secured shall have become repayable
under any of the provisions of Section 10.01 hereof and to the extent allowed
it under the Bank Security Documents:-
(a) the Bank may appoint in writing under the hand of any of its Managers,
Assistant Managers for the time being of the Kuala Lumpur Office any
competent person or persons not precluded under the provisions of Section
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182 of the Companies Act, to be the Receiver and/or Manager or Receivers
and/or Managers of the Property hereby charged and may in like manner from
time to time remove any Receiver and/or Manager or Receivers and/or
Managers so appointed and appoint another or others in his or their stead;
(b) the Bank or any person authorised by the Bank may enter into and upon any
premises where the Property is located without any notice and may take
possession and control of such premises and the Property hereby secured
and all properties books of account and documents relating to the Property
and assets hereby secured;
(c) the Bank shall be at liberty to give any notice which may be deemed
necessary by the Bank to any person or persons owing money to the Company
secured by the Bank Security Documents that all such monies be paid to the
Bank alone, and the Company hereby irrevocably appoints the Bank to be its
Attorney to xxx for and take all appropriate legal proceedings to recover
such monies and to give a good receipt and discharge for the same and to
give such notices to the debtors of the Company and to take all necessary
steps to complete the assignment of such monies to the Bank as may be
necessary;
(d) the Bank may effect the sale of any of the Property of which it takes
possession under Section 11.01(b) hereof upon giving not less than seven
(7) days' notice of the intended sale to the Company in such manner as the
Bank shall think proper with liberty to buy and resell the same and the
Bank shall not be liable for any loss caused to the Company thereby and
the Company shall do all things necessary to enable the Bank to complete
any sale by the Bank of any part of the Property included in this
security. The Bank shall be liable only for loss caused by its wilful
default.
Section 11.02 Powers of Receiver and/or Manager
A Receiver and/or Manager or Receivers and/or Managers so appointed shall
be the agent of the Company and the Company shall be solely responsible for his
or their acts or defaults and for his or their remuneration. The Receiver
and/or Manager or Receivers and/or Managers shall be appointed for all purposes
and shall have power to the extent provided in the Bank Security Documents but
not exclusively:-
(a) to take possession of or collect and get in all or any of the Property
charged under the Debenture and for that purpose to take any proceedings
in the name of the Company or otherwise as may seem expedient;
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(b) to carry on manage or concur in carrying on and managing the business of
the Company or any part thereof in connection with the Property, and for
any of those purposes to raise or borrow any money that may be required
upon the security of the whole or any part of the Property hereby charged;
(c) to raise and borrow money on the security of any or all of the Company's
assets and property upon such terms as he or they shall think fit;
(d) to sell or concur in selling and to let or concur in letting and to accept
surrenders of leases of any of the Property charged to the Bank under the
Bank Security Documents. In exercising the power of sale hereby conferred
the Receiver and/or Manager or Receivers and/or Managers may sell at such
time and in such manner and at such price as he or they may in his or
their absolute discretion think fit and in exercising such discretion he
or they may have regard to the views and desires of the Bank. The Receiver
and/or Manager or Receivers and/or Managers shall not be accountable for
any loss or damage which may be alleged to have been suffered by the
Company by reason of the exercise of his or their discretion;
(e) to make any arrangement or compromise which he or they shall think
expedient bring take defend discontinue any actions suits or proceedings
whatsoever in relation to the Property charged under the Bank Security
Documents;
(f) to make calls conditionally or unconditionally on the members of the
Company in respect of its uncalled capital with such and the same powers
for the purpose of enforcing payment of any calls so made as are by the
Articles of Association of the Company conferred upon the directors of the
Company in respect of calls authorised to be made by them and in the names
of the directors or in the name of the Company and to the exclusion of the
directors' power in that behalf;
(g) to appoint managers agents officers servants and workmen for any of the
aforesaid purposes at such reasonable salaries and for such reasonable
periods as he or they may determine;
(h) to do all such other acts and things as may be considered to be incidental
or conducive to any of the matters or powers aforesaid and which he or
they may or can lawfully do as agent(s) of the Company.
Section 11.03 Application of Proceeds of Sale
The net profits of carrying on the said business and the net proceeds of
any sale shall be applied by the Receiver
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and/or Manager or Receivers and/or Managers as follows:-
Firstly, in payment of all costs, charges and expenses of and incidental
to the appointment of the Receiver and/or Manager or Receivers and/or
Managers and the exercise by him or them of all or any of the powers
aforesaid including reasonable remuneration of the Receiver and/or Manager
or Receivers and/or Managers;
Secondly, subject to the rights of Intairdril under the First Charge and
the Bank under the Second Charge in or towards payment to the Bank of all
interest accrued under the Third Charge, the Bank Security Documents and
remaining unpaid;
Thirdly, in or towards payment to the Bank of all principal and other
monies due to the Bank and intended to be secured under the Third Charge
and the Bank Security Documents Provided Always that if the Bank shall be
of the opinion that the security may prove deficient, payments may be made
to the Bank at the request of the Bank on account of principal before the
interest or the whole of the interest due has been paid but such
alteration in the order of payment shall not prejudice the rights of the
Bank to receive the full amount to which it would have been entitled if
the primary order of payment have been observed or any less amount which
the sum ultimately realised from the security may be sufficient to pay;
Lastly, any surplus shall be paid to the persons legally entitled thereto.
Save as aforesaid the Bank shall be under no liability to the Receiver
and/or Manager or Receivers and/ or Managers for his or their remuneration
costs, charges or expenses or otherwise.
Section 11.04 Deficiency in Proceeds of Sale
If the amount realised by the Bank on a sale of the Property under the
provisions of Section 11.02 hereof after deduction and payment from the
proceeds of such sale of all fees dues costs charges and expenses incidental
thereto is less than the amount due to the Bank under the Bank Security
Documents and whether at such sale the Bank is the purchaser of the Property or
otherwise the Company shall pay to the Bank the difference between the amount
due and the amount so realised and until payment will also pay interest on such
balance at the Prescribed Rate with monthly rests before as well as after any
Court order or judgment.
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Section 11.05 Right to Sell
The Bank may at any time after the monies hereby secured shall have become
payable effect the sale of the Property of which it takes possession under the
provisions of Section 11.01(b) hereof upon giving not less than seven (7) days'
notice of the intended sale to the Company in such manner as the Bank shall
think proper with liberty to buy and resell the same and the Bank shall not be
liable for any loss caused to the Company thereby and the Company shall do all
things necessary to enable the Bank to complete any sale by the Bank of any
part of the Property. The Bank shall be liable only for loss caused by its
wilful default.
ARTICLE XII
Simultaneous Action
Section 12.01 Simultaneous Action
The remedies available to the Bank hereunder upon default which is
continuing by the Company if so enforced by the Bank shall be without prejudice
to any other remedy or remedies available to the Bank by virtue of law or any
other security arrangement or agreement between the Bank and the Company or any
third party or parties and the Bank shall be entitled to take all necessary
actions including but not limited to the simultaneous commencement of
action/actions to obtain judgment and/or to proceed with the simultaneous
enforcement of one or more security including the security hereunder.
ARTICLE XIII
Section 13.01 Power of Attorney
The Company shall simultaneously with the execution of this Agreement
execute a Power of Attorney in favour of the Bank, any and every Receiver
and/or Manager or Receivers and/or Managers as aforesaid and its or his/their
substitute or substitutes and any of its or his/their attorney or attorneys to
be the Company's Attorney jointly and every one of them severally and in the
Company's name and on the Company's behalf and as its act and deed to execute,
sign, seal and deliver and otherwise perfect any deed assurance agreement
instrument or act which may be required or may be deemed proper for any of the
purposes set out hereunder and the Debenture and with power for such attorney
or attorneys to appoint or remove any substitute or substitutes. Such Power of
Attorney to be irrevocable until payment and discharge of the Loan, interest
thereon and any other moneys payable under the Bank's Security Documents.
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ARTICLE XIV
Insurance
Section 14.01 Insurance
The Company shall at all times throughout the duration of the Bank
Security Documents keep the Property in good order and condition and insured by
the Company at its expense in its name for such value which shall not be less
than the net book value of the Property, (at all material times), against loss
or damage by fire, lightning, tempest, flood, malicious acts and against such
other risks as the Bank may from time to time think expedient and which risks
are normal and customary in respect of the Property with an insurance company
or companies acceptable to the Bank and shall arrange with such insurance
company to have the interests of the Bank as mortgagees/chargees of the
Property to be duly endorsed on such policy or policies of insurance. If
default is made by the Company in effecting maintaining or renewing any such
insurance as aforesaid it shall be lawful for but not obligatory upon the Bank
at the cost and expense of the Company to effect maintain or renew any such
insurance as the Bank may think fit and any sum if expended by the Bank
together with interest thereon at the Prescribed Rate from the date of such
payment by the Bank shall be recovered from the Company and shall be repaid on
demand being made by the Bank.
Section 14.02 Restriction Against Additional Insurance
Apart from the insurance required to be effected by the Company pursuant
to Section 14.01 hereof the Company shall not except with the consent in
writing of the Bank effect or maintain any insurance in respect of the
Property.
Section 14.03 Premium receipts
The Company shall provide the Bank with documentary evidence satisfactory
to the Bank pertaining to all insurance policies required to be effected by the
Company pursuant to Section 14.01 hereof and the receipts of payment of premium
in respect of the same paid by the Company and will when required deliver and
produce to the Bank or cause to be produced or delivered to the Bank or to such
persons as it may direct the policy of such insurance effected by the Company.
Section 14.04 Application of insurance monies
Any monies received on any insurance of the Property secured under the
Debenture shall be applied in or towards making good the loss or damage in
respect of which the money is received or receivable unless there is a total or
constructive total damage to the Property in which event the monies received or
receivable shall at the Bank's option be utilised by the Bank in
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or towards the discharge of the monies secured hereunder or towards the repair
of the Property. The Company shall hold any monies received on such insurance
in trust for the Bank and the Bank shall upon payment by the Company to the
Bank of such monies held on trust give a good discharge for the same.
Section l4.05 Workmen's Compensation Insurance
The Company shall take out and maintain for such amount and with such
insurance company as shall be approved by the Bank (which approval shall not be
unreasonably withheld) in respect of Workmen's Compensation Insurance for all
employees of the Company or alternatively comply with any law for the time
being related to the establishment of social security scheme or benefits for
employees.
ARTICLE XV
Section 15.01 Expenses and Stamp Duty
Irrespective of whether the Company has requested for the Advance, the
Company shall pay the following:-
(a) Initial Expenses
On demand, all costs and expenses (including legal fees on a solicitor and
client basis) incurred by the Bank in connection with the preparation,
negotiation or entry into of the Bank Security Documents and/or any
subsequent amendment of or waiver in respect of the same;
(b) Enforcement Expenses
On demand, all costs and expenses (including legal fees on a solicitor and
client basis) incurred by the Bank in protecting or enforcing any rights
under the Bank Security Documents and/or any amendment of or waiver
thereof; and
(c) Stamp Duty
Promptly, and in any case before any penalty becomes payable, any stamp,
documentary, registration or similar tax payable in connection with the
entry into, performance, enforcement or admissibility in evidence of the
Bank Security Documents and/or any such amendment or waiver, and shall
indemnify the Bank against any liability with respect to or resulting from
any delay in paying or omitting to pay any such tax payable.
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ARTICLE XVI
Section 16.01 Payments
(a) Currency and Place of Payments
All payments to be made hereunder, whether in respect of principal,
interest, fees or any other item, by the Company shall be made in full,
without any deduction or withholding (whether in respect of set-off,
counter-claim, duties, taxes, charges or otherwise whatsoever) unless the
deduction or withholding is made mandatory by law in particular the
Australian withholding tax of ten per cent (10%) of interest paid after
delivery of Rig No. 489 to Australia, in immediately available funds in
United States Dollars not later than 12.00 noon on the date on which the
relevant payment is due hereunder and such payments for the account of the
Bank shall be made to such account or accounts as the Bank shall designate
in writing to the Company from time to time.
(b) Non-Business Days
Whenever any payment hereunder shall be due on a day which is not a
Business Day, such payment shall be made on, and interest shall be payable
to, the next succeeding Business Day, unless the succeeding Business Day
shall fall in the succeeding calendar month, in which event such payment
shall be made on the preceding Business Day, and any relevant interest
period shall be adjusted accordingly.
Section 16.02 Change in Law and Other Circumstances
(a) Where the Bank determines that any new law or regulation or official
directive of a competent authority or any change in any existing law or
regulation or official directive shall, or if any authority responsible
for administering any such law or regulation or official directive
maintains that such law or regulation or official directive shall:-
(i) subject the Bank to any tax, levy, impost, duty, charge or fee (other
than income tax or any other tax computed on or by reference to the
profits or overall net income of the Bank) or deduction or
withholding on or from any payment due or owing from the Company
under the Bank Security Documents; or
(ii) change the basis of taxation of the Bank on any payment due or owing
from the Company under the Bank Security Documents (except with
respect to income tax or any other tax computed on or by reference to
the profits or overall net income of
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the Bank); or
(iii) impose, modify or deem applicable any reserve, deposit or similar
requirement against or against any class of or change in or in the
amount of, any assets or liabilities of the Bank; or
(iv) impose on the Bank any other condition regarding the Bank Security
Documents, the Loan or any part thereof; or
if the Bank complies with any direction or request (whether or not having
the force of law) from any appropriate fiscal or monetary authority, and
in consequence of any such event mentioned above:-
(I) the costs to the Bank of or consequent on making the Loan available
or funding or maintaining the Loan is increased; or
(II) the amount of principal or interest or other sums receivable by the
Bank from the Company is decreased; or
(III) the Bank makes any payment or foregoes any interest or other return
on or calculated by reference to the gross amount of any sum received
by it from the Company hereunder;
then and in any such case (provided that in each such case the Bank
considers such increase, decrease, payment or foregoing of interest or
other return to be material, having regard to the requirement of the Bank
to be compensated for any erosion of its margin or profit attributable to
the Loan or any part thereof or attributable to its inability to employ
funds which would but for the happening of such event have been receivable
in respect of the Loan or any part thereof at the time when the same would
have been so receivable or attributable to the necessity of liquidating or
employing deposits to effect or maintain the Loan) the Bank shall notify
the Company of the happening of such event and the Company shall forthwith
on demand made by the Bank pay to the Bank such amounts as, with effect
from the date on which the Company is notified, would compensate the Bank
for such increase in cost or for such decrease or for such payment or
foregone interest or other return. Without prejudice to the foregoing, the
Company shall be at liberty on any Business Day thereafter on giving not
less than thirty (30) Business Days' notice to the Bank to prepay to the
Bank on the date of expiration of such notice.
(b) A claim or demand made under the preceding sub-clause may be made before
or after the end of a period to
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which such claim or demand relates and before or after any prepayment of
part of the Loan. An increased cost, reduced amount, payment or foregoing
of interest or other return shall be an increased cost, reduced amount,
payment or foregoing of interest or other return, respectively, for the
purpose of the preceding sub-clause notwithstanding that the payment or
quantification thereof does not or cannot be made until after the expiry
of the relevant period to which it may relate.
(c) The certificate of the Bank as to the amount of such increased cost,
reduced amount, payment or foregoing of interest or other return, or any
other matters referred to in this Section shall set out the basis and
calculation thereof and shall be binding on the Company, save for manifest
error.
Section 16.03 Set Off
The Company hereby agrees and irrevocably authorises the Bank that the
Bank may at any time without notice after an event of default which is
continuing or in making demand notwithstanding any settlement of account or
other matter whatsoever combine or consolidate all or any then existing
accounts including accounts in the name of the Bank (whether current deposit
loan or of any other nature whatsoever whether subject to notice or not and
whether in Malaysian Ringgit or in any other currency) of the Company alone or
jointly with others wheresoever situate and set off or transfer any sum
standing to the credit of any one or more such accounts in or towards
satisfaction of any monies owing or obligations or liabilities of the Company
to the Bank whether such liabilities be present future actual contingent
primary collateral several or joint. When such combination set-off or transfer
requires the conversion of one currency into another such conversion shall be
calculated at the then prevailing spot rate of exchange of the Bank (as
conclusively determined by the Bank save for manifest error) for purchasing the
currency in which the monies obligations or liabilities were due owing or
incurred with the existing currency so converted.
Section 16.04 All Payments Received To Be Payment In Gross
All monies received by the Bank from the Company capable of being applied
in reduction of the monies hereby secured under the Bank Security Documents
shall be regarded for all purposes as payment in gross and if a receiving order
shall be made against the Company or an order be made or an effective
resolution be passed for the winding-up of the Company the Bank may prove for
the whole of the monies then owing and no monies received under such proof
shall be considered as received in respect of the Bank Security Documents but
the full amount owing shall be payable until the Bank has received from all
sources one
33
32
hundred per cent (100%) of the ultimate balance owing and remaining due and
unpaid to the Bank by the Company. If the amount ultimately received by the
Bank exceeds the balance owing to the Bank the excess only over such balance
shall be repaid to the Company on whose account the same shall have received by
the Bank.
Section 16.05 Modification and indulgence
The Bank may at any time and without in any way affecting the security
created under the Bank Security Documents:-
(a) deal with exchange release or modify or abstain from perfecting or
enforcing any securities or other guarantees or rights which the Bank may
now or hereafter have from or against the Company or any other person;
(b) accept payment of the monies due or becoming due under the Bank Security
Documents by such increased or decreased instalments as shall from time to
time be agreed to by the Bank or to agree to suspend payments in reduction
of the principal or to give time for the payment of monies due or becoming
due hereunder or to grant such indulgences from time to time in the
absolute discretion of the Bank.
Section 16.06 Suspense Account And Appropriation of Payments
(a) Any money received hereunder may be placed and kept to the credit of a
suspense account for so long as the Bank thinks fit without any obligation
in the meantime to apply the same or any part thereof in or towards
discharge of any money or liabilities due or incurred by the Company to
it. Notwithstanding any such payment in the event of any proceedings in or
analogous to bankruptcy liquidation composition or arrangement the Bank
may prove for and agree to accept any dividend or composition in respect
of the whole or any part of such money and liabilities in the same manner
as if the Bank Security Documents had not been created.
(b) In addition to the foregoing provision and notwithstanding the other
express provisions of the Bank Security Documents, the Company hereby
irrevocably disable themselves when making payments to the Bank from
appropriating such payments toward the Loan or any of the general banking
facilities given by the Bank and hereby further waives the effect of the
provision of Section 60 of the Contracts Xxx 0000 or any amendment or
reenactments thereof and unreservedly gives the right of appropriation of
all payments made
34
33
by them at all times to the Bank under the Bank Security Documents.
Section 16.07 Demand
Any demand hereunder shall be made by a notice in writing and be signed by
the Attorney, Manager, Assistant Manager, or other Officer of the Bank on
behalf of the Bank or by any solicitor or firm of solicitors acting for the
Bank and such notice shall be deemed to have been sufficiently served on the
Company or liquidator as the case may be if it is left at the address of the
Company specified herein or sent by registered letter to such address and if
sent by registered letter it shall be deemed to be given three (3) days after
posting thereof.
Section 16.08 Certificate conclusive
A certificate signed by any officer of the Bank as to the monies or
liability for the time being due or owing or incurred to the Bank from the
Company shall be accepted by the Company as conclusive evidence (save for
manifest error) that the balance or amount thereby appearing is due or owing to
the Bank from the Company.
Section 16.09 Review of Loan
The Loan is subject to such periodic reviews as the Bank may in its
absolute discretion decide and in any event in July, 1996.
Section 16.10 Bank's Right To Disclose
The Company hereby irrevocably authorises the Bank to disclose any
information relating to the accounts of the Loan, the Company's default in
payment to any parties liable to settle such of the Company's indebtedness, and
to the providers of other security now held or to be held by the Bank and to
any credit bureau or government agencies established or to be established by
Bank Negara Malaysia or the Association of Banks of Malaysia.
Section 16.11 Waiver
No failure to exercise nor any delay in exercising on the part of the Bank
of any right or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy prevent any further or
other exercise thereof or the exercise of any other right or remedy. The rights
and remedies herein provided are cumulative and not exclusive of any other
rights or remedies provided by law.
35
34
Section 16.12 Amendment
No amendment modification termination or waiver of any provisions of the
Bank Security Documents nor consent to any department by the Company therefrom
shall be effective unless the same shall be in writing and signed or executed
by the Bank and then any such waiver or consent shall be effected only in the
specific instance and for the specific purpose for which it was given. No
notice to or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in similar or other circumstances.
Section 16.13 Severability
In case one or more of the provisions contained in this Agreement should
prove to be invalid, illegal or unenforceable in any respect, the validity and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.
Section 16.14 Reconstruction of the Bank and or the Company
The security liabilities and or obligations created by the Bank Security
Documents shall continue to be valid and binding for all purposes whatsoever
notwithstanding any change by amalgamation reconstruction or otherwise which
may be made in the constitution of the Bank and similarly the security
liabilities and or obligations created by the Bank Security Documents shall
continue to be valid and binding for all purposes whatsoever notwithstanding
any change by amalgamation reconstruction or otherwise howsoever in the
constitution of the Company and it is expressly declared that no change of any
sort whatsoever in relation to or affecting the Company shall in any way affect
the security liabilities and or obligations created under the Bank Security
Documents in relation to any transaction whatsoever whether past present or
future.
Section 16.15 Applicable Law
This Agreement shall be governed by and construed in accordance with the
laws of Malaysia but in enforcing this instrument, the Bank shall be at liberty
to initiate and take actions or proceedings against the Company in Malaysia
and/or elsewhere as the Bank may deem fit and the parties hereto agree that
where any actions or proceedings are initiated and taken in Malaysia they shall
submit to the non-exclusive jurisdiction of the Courts of Malaysia in all
matters connected with the obligations and liabilities of the parties hereto
under or arising out of this instrument and the service of any writ of summons
or any legal process in respect of any such action or proceeding may be
effected on the Company and/or the Bank by forwarding a copy of the writ of
summons statement of claim or other legal process by prepaid registered post to
their last
36
35
known respective addresses.
Section 16.16 Successors bound
This Agreement shall be binding upon and endure to the benefit of the Bank
and its successors in title and assigns and the Company and its
successors-in-title.
ARTICLE XVII
Discharge of the Property
Section 17.01 Release
The Company shall be entitled, at any time upon full repayment of all sums
due to the Bank under the Bank Security Documents, to obtain at its entire cost
and expense discharge and release of the assets secured under the Bank Security
Documents and in such event the Bank shall at the request of the Company
execute all such discharge or release documents in respect of the Bank Security
Documents.
ARTICLE XVIII
Notices & Stamping
Section 18.01 Notices
(a) All notices and other communications to the parties hereto shall be made
in writing but unless otherwise specified may be made:-
(i) by personal delivery;
(ii) by post, postage prepaid;
(iii) by cable; and
(iv) by telex,
addressed to the respective parties hereto at the addresses specified
below or at such other address of which such party shall have notified the
party giving such notice. Provided that all notices shall be made by the
Company only by personal delivery or by post. Any period to be calculated
hereunder from the date of receipt of any notice after which an act is
authorised or required shall include the date of receipt of such notice
but exclude the date of the authorised or required act (in each case in
the locale where the recipient of such notice is domiciled). In addition,
for purposes of computing any grace period hereunder, references to any
given number of Business Day or days
37
36
shall be computed by reference to the specified period of time in
Malaysia. For the purpose of this Section the term "Business Day" shall
mean any day (other than a Saturday) on which banks are open for business.
For the Bank:
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
Address for Notices: 0 Xxxxx Xxxxxxx,
00000 Xxxxxx,
Xxxxxxxx.
Telex Number:
Answerback:
For the Company:
ANTAH DRILLING SDN. BHD.,
Address for Notices: Admin. Building, Block C
Third Floor, Door No. 21
Kemaman Supply Base
Terengganu
West Malaysia
Telephone Number: 60/9/863-1600
Facsimile Number: 60/9/863-1624
Copy to: Antah Drilling Sdn. Bhd.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxx
Telephone Number: 61/51/432011
Facsimile Number: 61/51/442417
(b) Any notice or other communication from the Company to the Bank shall be
irrevocable and shall not be effective until received by the Bank. Any
notice or other communication from the Bank to any person under this
Agreement shall be deemed to have been received:-
(i) if by personal delivery, when delivered;
(ii) if by post, forty-eight (48) hours after posting, postage prepaid;
38
37
(iii) if by cable, twenty-four (24) hours after despatch; and
(iv) if by telex, when transmitted,
addressed to such person or persons in the manner provided for in
Section 18.01(a) hereof.
Section 18.02 Principal and Collateral Instruments
It is hereby agreed and declared by and between the parties hereto that
for the purpose of Section 4(3) and Item 27 of the First Schedule to the Xxxxx
Xxx 0000, this Agreement, the Debenture and the Assignment are instruments
employed in one transaction to secure the payment of a principal amount of up
to United States Dollars Twenty-three million five hundred thousand
(USD23,500,000/-) and that for the purposes of Section 4(3) and Item 27 of the
First Schedule to the Xxxxx Xxx, 0000, this Agreement shall be deemed to be the
principal instrument, the Debenture and the Assignment shall be deemed to be
the subsidiary instrument.
AS WITNESS the Common Seal of the Company was hereunto affixed and the
Attorney for the Bank has hereunto set his hand.
The Common Seal of ANTAH )
DRILLING SDN. BHD. was )
hereunto affixed in the )
presence of:- )
/s/ YAM TUNKU IMRAN IBNI TUANKU JA'AFAR /s/MISNI XXXXXX XXXXXXX
--------------------------------------- -----------------------
Director Director/Secretary
SIGNED by Xxxxx Xxxxx Fatt )
the Attorney for and on )
behalf THE HONGKONG AND )
SHANGHAI BANKING CORPORATION ) /s/Xxxxx Xxxxx Fatt
LIMITED in the presence of:-
XXXXXX XXXX XXXX XX
Advocate & Solicitor,
No. 2. Bentleng,
Kuala Lumpur.
This is the last of the execution page of the Loan Agreement made between
Antah Drilling Sdn. Bhd. as the Company of the one part and The Hongkong And
Shanghai Banking Corporation Limited as the Bank of the other part.
39
SCHEDULE "A"
The Property
Description of Rig
[Antah Drilling Sdn. Bhd. Rig No. 448
(replaced by Rig No. 488)]
Description of Rig
(Antah Drilling Sdn. Bhd. Rig No. 489
(formerly known as Rig No. 450)
which includes the replacement Rig
howsoever numbered after up-grading and modification)
One (1) Pool Self-Contained Platform Rig Featuring National 1320 UE Drawworks
Powered by 2 ea. GE-752 Electric Motors, with Elmago Brake and Disc Brakes;
Dreco 1000 K Net Hookload Mast 152 ft. High;
2 xx Xxxxxxx Denver PZ-11 Mud Pumps ea. Powered by 2 ea. GE-752 Electric
Motors;
Oilwell B - 37 1/2" Rotary Table Independently Driven by GE - 752 Electric
Motor;
Xxxx Xxxx SCR Controlled Power System Consisting of 5 ea. Caterpillar D-399
Diesel Engines w/Kato 6P6-2700 Generators;
Bulk Storage for 3000 C.F. Cement, 2000 C.F. Barite, with Piping System to
Load, Store or Transfer Bulk Materials;
17,000 ft. 5 1/2" Drill String w/5" Hevi-Wate Pipe, 8" and 6 1/2" Drill Collars
Including all Sub and X-overs;
Varco TDS-4S Top Drive Retractable System with PH-85 Pipe Handler;
EMSCO 500 Ton Travelling Block Assembly;
Varco Star-2 Racking System;
Varco AR3200 Iron Roughneck;
Xxxxx XX-26 Hydraulic Catheads;
M.D. Totco Drillers Cabin for Driller, Assistant Driller and Pipe Mite Operator
to Include DAQ Processing unit. Spectrum 1000, Visulogger, VIP plus Data
Logging Module, Total Block Control System;
40
2
Varco PDM (Pipe Mite) Assembly;
Varco COnveyor;
Mud Process Equipment Include Three (3) Thule Shale Shakers, Desanders,
Desilter, Mud Gas Separator and Flow Trend Polymer Jet Shear Unit;
1500 bbl. Mud System;
Closed Circuit Colored T.V. Monitor System;
Vetco Xxxx KFDJ Fixed Diverter System;
Xxxxxxx 13 5/8" 5000 psi B.O.P. System to Include One (1) Annular and Three (3)
Single RAM Preventers and 15 Sets of RAM;
Xxxxxxx B.O.P. Control System.
41
SCHEDULE "B"
FORM OF DRAWDOWN NOTICE
To:
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
0, Xxxxx Xxxxxxx,
00000 Xxxxxx,
Xxxxxxxx.
Dear Sirs,
Loan Agreement dated 199
Drawdown Notice
-------------------------------------
We refer to the Loan Agreement dated [ ] 19 ("the Agreement") between (i)
ANTAH DRILLING SDN. BHD. and (ii) THE HONGKONG AND SHANGHAI BANKING CORPORATION
LIMITED.
We hereby give you notice that we wish to request an Advance to be made to
us under the Agreement on the day of 19 of an amount of United States
Dollars
(USD ) pursuant to Section 7.01 of the Agreement.
We request you to remit the Advance to us at [specify name and address of
bank and the account number].
We further represent and warrant to you that:-
(a) the representations and warranties set out in Section 3.01 of the
Agreement are true and accurate as at the date hereof;
(b) no Event of Default as defined in the Agreement has occurred which is
continuing and no event has occurred which with the giving of notice
and/or lapse of time and/or a determination made under Section 7.01
of the Agreement would constitute an Event of Default; and
42
2
c) the making of the Advance hereby requested will not give rise to any
such event as is referred to in paragraph (b) above nor will it cause
any of the representations and warranties stated in Section 3.01 of
the Agreement to become untrue or incorrect as if such
representations and warranties were made on the date of such Advance
and there is not, so far as we are aware, any reason why we will not
be permitted to make any payment required under the Agreement.
Yours faithfully,
----------------------------------
Duly authorised Signatory/Attorney
for and on behalf of
ANTAH DRILLING SDN. BHD.
43
APPENDIX 1
[INTAIRDRIL LOGO] INTAIRDRIL LTD
X/X XXXX XXXXXXX
XX XXX 0000 (77210)
00000 XXXXXXXX XXXXXX
XXXXXXX XXXXX 00000
X.X.X.
TELEPHONE (000) 000-0000
TELEX 775-957
October 10, 1995
The Hongkong and Shanghai Banking
Corporation Limited
Offshore Banking Unit Labuan
0 Xxxxx Xxxxxxx
00000 Xxxxxx
XXXXXXXX
RE: A Debenture to be created over two (2) oil rigs owned by Antah
Drilling Sdn. Bhd., namely Rig 488 (which replaces Rig 448) and Rig
489 (which replaces Rig 450) together with all equipment, spare and
replacement parts thereto, to be executed in your favor ranking after
the Charge in favor of Intairdril Ltd. dated the 13th day of December
1988
Dear Sirs:
We, Intairdril Ltd., c/o Pool Company, 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx,
HEREBY CONFIRM our consent as First Chargee to the creation of a third Charge
by way of a Debenture in your favor (herein "the Debenture") over the
above-mentioned properties ranking after our Charge over same dated the 13th
day of December 1988.
Our consent hereto has been given on the basis that any foreclosure action to
be taken by you under the Debenture will be subject to your having given notice
to us by facsimile or certified courier to the following address:
Intairdril Ltd.
c/o Pool Company
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Group Vice President - International Operations
Copy To: Treasurer
Facsimile: 713/954-3244
Very truly yours,
INTAIRDRIL LTD.
By: /s/ X.X. XXXXXXXXXX
--------------------------------
Title: Chairman and President
-----------------------------
44
The Hongkong and Shanghai Banking
Corporation Limited
October 10, 1995
Page 2
Accepted and Agreed to this
16th day of October,1995.
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
By: /s/ XXXXX XXXXX FATT
------------------------------------
Title: General Manager Corporate Banking
------------------------------------
45
DATED THIS 14TH DAY OF DECEMBER, 1995
BETWEEN
ANTAH DRILLING SDN. BHD.
AND
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(OFFSHORE BANKING UNIT, LABUAN)
***********************************
ASSIGNMENT
***********************************
MESSRS. XXXXXX XXXXXXXX & CO.,
XXXXXX XXXXXXXX & CO.,
ADVOCATES & XXXXXXXXXX,
XX. 0 XXXXXXX,
00000 XXXXX XXXXXX.
AND AT
16TH FLOOR,
WISMA HAMZAH-XXXXX XXXX,
XX. 0 XXXXX XXXXXX,
00000 XXXXX XXXXXX.
46
AN ASSIGNMENT made the 14th day of December, 1995 Between ANTAH DRILLING
SDN. BHD. is a company incorporated in Malaysia with its registered office at
9th Floor, Bangunan BNH, Off Xxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx, 00000 Xxxxx
Xxxxxx (hereinafter called "the Assignor") of the one part And THE HONGKONG
AND SHANGHAI BANKING CORPORATION LIMITED, a corporation constituted by the
Hongkong and Shanghai Bank Ordinance 1866 and continued by The Hongkong and
Shanghai Banking Corporation Limited Ordinance, Chapter 70 of the Laws of Hong
Kong and having its Off-Shore Banking Unit in Labuan at 0, Xxxxx Xxxxxxx, 00000
Xxxxxx, Xxxxxxxx (hereinafter called "the Assignee").
WHEREAS:-
A. Under a Contract No. 00285866 dated the 30th day of November, 1995
(hereinafter called "the said Contract") made between the Assignor of the one
part and ESSO AUSTRALIA LTD., (A.C.N. 000 018 566) a company having its
registered office at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (hereinafter
called "EAL") of the other part, the Assignor has agreed to carry out and
complete the works more particularly set out in the said Contract for the
consideration payable by EAL to the Assignor in accordance with the said
Contract.
B. The Assignee has at the request of the Assignor granted to the Assignor a
term loan of United States Dollars Twenty-three million five hundred thousand
(USD23,500,000/-) upon the security and on the terms and conditions as set out
in the Loan Agreement dated the 16th day of October, 1995 made between the
Assignor of the one part and the Assignee of the other part (hereinafter called
"the Loan Agreement").
C. It is a term of the Loan Agreement that the Assignor shall assign, by way
of collateral security for the Term Loan all the monies due and payable by EAL
to the Assignor under the said Contract and the right to such monies.
NOW THIS ASSIGNMENT WITNESSETH as follows:-
1. In consideration of the Assignee granting to the Assignor the Term Loan
the Assignor Hereby Assigns to the Assignee, all the Assignor's right title and
interest in the contract monies payable to the Assignor under the said Contract
together with the power to the Assignee to xxx for, recover the same, TO HOLD
the same to the Assignee absolutely subject to the proviso for redemption
hereinafter contained.
2. Upon repayment to the Assignee of the Term Loan in full together with
interest thereon and all whatsoever monies payable by the Assignor to the
Assignee under the provisions of the Loan Agreement and hereunder, the Assignor
shall be entitled at its
47
2
own cost and expense (including the cost of the solicitors acting for the
Assignee) to obtain a reassignment by way of discharge of this Assignment, such
reassignment and discharge to be in such form as the Assignee and the Assignor
agree.
3. Upon receipt of any payment from EAL, the Assignee shall credit such
payment to the account of the Assignor kept with the Assignee in accordance
with the terms of the Loan Agreement.
4. The Assignor hereby irrevocably appoints the Assignee and the manager for
the time being of the branch of the Assignee or other person(s) deriving title
under it and its substitutes jointly and severally to be the attorney or
attorneys for the Assignor and in the name of the Assignor or otherwise and on
behalf of the Assignor to do any of the acts and things following:-
(a) to demand xxx for and receive all payments as and when they become
due to the Assignor from EAL under the said Contract and to give good
receipts and valid discharges for the same;
(b) to execute in its name or otherwise all such documents and
instruments as may be deemed necessary or expedient by the
attorney(s) for the purpose of giving full effect of the assignment
hereunder;
(c) to substitute or appoint one or more attorneys for all or any of the
purposes aforesaid;
And whatsoever the said attorney or attorneys or any of them shall lawfully do
or cause to be done by virtue of this Power of Attorney and the Assignor hereby
agrees to ratify and confirm the same. Provided Always that the Assignee hereby
agrees not to take any action against EAL in accordance with Clause 4(a) hereof
in the event that No Event of Default (as defined in the Loan Agreement) has
occurred and is continuing.
5. It is hereby agreed between the Assignor and the Assignee that any such
receipt issued by the Assignee to EAL in respect of payments received from EAL
shall be a sufficient discharge to EAL as to the amount for which such receipt
is issued.
6. The Assignor hereby undertakes to the Assignee that:-
(i) it will forthwith on the execution of this Assignment give to EAL a
notice of this Assignment substantially in the form of Schedule I (or
in such other form as the Assignee may
48
3
require) and shall further irrevocably direct EAL further to pay all
payments in United States Dollars as and when they become due under
the said Contract to the Assignee;
(ii) it will not do or omit to do or suffer or permit anything to be done
which might cause the said Contract to be or become, in any respect,
invalid, void or voidable;
(iii) it will send a copy of all notices material to the Assignee pursuant
to the provisions of this Assignment received or given by it under
the said Contract forthwith to the Assignee;
(iv) it will not, except with the prior consent in writing of the
Assignee:-
(a) agree to any variation of the said Contract that reduces the
amount of the contract monies assigned hereunder and/or which
affects adversely the Assignee's interest and/or rights in any
way whatsoever, or
(b) exercise any rights or powers of termination under the said
Contract
unless and until requested to do so by the Assignee, whereupon the
Assignor agrees that it will do so;
(v) it will do or permit to be done each and every act or thing which the
Assignee may from time to time reasonably require to be done for the
purpose of enforcing the rights of Assignee under the said Contract
and this Assignment and will allow its name to be used as and when
required by the Assignee for that purpose.
7. The Assignor hereby irrevocably authorises the Assignee at such time or
times to such extent and in such manner as the Assignee shall in its absolute
discretion deem fit and upon notice to the Assignor to deduct from payments
received from EAL under the said Contract and pay into the account of the
Assignor with the Assignee such sums as may from time to time be due and owing
by the Assignor to the Assignee under the Loan Agreement. The Assignee shall be
entitled at its sole and absolute discretion, in the absence of manifest error,
to appropriate such sums so deducted towards repayment of the sums outstanding
under the Loan Agreement or any part thereof in such order of priority as
provided for in the Loan Agreement.
8. It is hereby expressly agreed and declared by the parties hereto that:-
49
4
(i) the Assignee's rights hereunder are restricted to the right to
receive payments from EAL under the said Contract and the
Assignee shall in no way be involved in any dispute arising out
of the said Contract which it is hereby agreed shall be entirely
between the Assignor and EAL.
(ii) notwithstanding the assignment hereinbefore contained the
Assignor shall duly observe and perform all the covenants and
stipulations as contained in the said Contract which the
Assignor shall have entered into or shall from time to time
hereafter enter into with EAL and on the part of the Assignor to
be observed and performed and the Assignor shall at all times
hereafter save harmless and keep the Assignee indemnified
against any demands actions proceedings claims damages penalties
costs and expenses which may be brought or made against or
incurred by the Assignee by reason of or on account of the
failure on the part of the Assignee to observe and perform any
of the covenants and stipulations on its part to be observed and
performed as contained in the said Contract.
9. All notices required to be served under the Assignment shall be in writing
and shall be sufficiently served on the Assignor if left at or sent by ordinary
mail to the address specified in the Loan Agreement or such address as the
Assignor may notify the Assignee in writing and in the latter, service shall be
deemed to have been effected 48 hours after posting of the notice,
notwithstanding that it be delivered or returned undelivered and in proving
such service it shall be sufficient to prove that the notice was properly
addressed and posted.
10. The breach of any terms or covenants of this Assignment shall constitute
an event of default under the terms of the Loan Agreement and the Assignee
shall be entitled to proceed in accordance with the terms of the Loan Agreement
under Events of Default.
11. The Assignee shall not be under any obligation to the Assignor or any other
person or party to demand or take or continue any action or steps to recover
any of the monies hereby assigned and shall not be under any obligation to the
Assignor by reason of the Assignee having abstained from taking or continuing
any such action or steps.
12. Subject to Section 10.01 of the Loan Agreement, the Assignee shall be
entitled on behalf of the Assignor to enter into any settlement or arrangement
or accept any composition or grant any waiver or time in relation to the monies
hereby assigned without the concurrence of the Assignor but notice of
50
5
the same shall be given to the Assignor. Such settlement or arrangement or
composition or waiver or granting of time shall be binding on the Assignor.
13. (A) This security shall not be considered or satisfied by any conditional
payment or satisfaction of the whole or any of sum or sums of money owing or by
any payment made to be held in suspense but shall be a continuing security and
shall extend to cover all or any sum or sums of money which shall for the time
being or from time to time be due and owing by the Assignor to the Assignee
under the Loan Agreement and any other security documents executed hereafter or
from time to time executed to secure the Term Loan.
(B) The security created by this Assignment shall not be discharged or
affected by:-
(i) any time, indulgence, waiver or consent at any time given to the
Assignor or any other person;
(ii) any amendment to the Loan Agreement or any other security,
guarantee or indemnity;
(iii) the making or absence of any demand on the Assignor or any
other person for payment;
(iv) the enforcement or absence of enforcement of any of the charges
under the Loan Agreement or any other security, guarantee or
indemnity;
(v) the release of any security, guarantee or indemnity;
(vi) the winding-up, amalgamation, reconstruction or reorganisation
of the Assignor or any other person;
(vii) the illegality, invalidity or unenforceability of or any defect
in any provision in the any of the Loan Agreement or any other
security, guarantee or indemnity or any of the obligations of
any of the parties thereunder; or
(vii) any other matter or thing whatsoever.
14. The Assignor shall be liable to pay all fees and expenses in connection
with or incidental to this Assignment including the Assignee's solicitors' fees
[on a solicitor and client basis] in connection with the preparation stamping
registration execution and perfection of this Assignment and the documents
related thereto. If the Term Loan or any part thereof or any of the monies
hereby assigned shall be required to be recovered through any process of law or
if the Term Loan or any part thereof or any of the monies hereby assigned shall
be placed
51
6
in the hands of the solicitors for collection, the Assignor shall pay (in
addition to the monies then due and payable under the Charges) the Assignee's
solicitors' fees (on a solicitor and client basis and any other fees and
expenses incurred in respect of such collection).
15. The Assignor hereby declares that there is no mortgage charge or assignment
on the contract monies hereby assigned having priority to or ranking pari passu
with this instrument, and:-
(i) the Assignor shall not during the subsistence of this Assignment
without the consent in writing of the Assignee execute any form of
charge mortgage assignment (whether fixed or floating), pledge or
lien in respect of the contract monies hereby assigned;
(ii) this Assignment shall be without prejudice to any security already
given by the Assignee to the Assignor or any security which may
hereafter be given to the Assignee for securing repayment of the
monies outstanding under the Loan Agreement, interest thereon or any
part thereof or any other money hereby secured and whether such
security is taken as additional or collateral security or otherwise
howsoever.
16. Time shall be of the essence of this instrument and no failure or delay on
the part of the Assignee in exercising nor any omission to exercise any right
power privilege or remedy accruing to the Assignee under this instrument upon
any default on the part of the Assignor shall impair any such right power
privilege or remedy or be construed as a waiver thereof or any acquiescence in
such default nor shall any waiver or action by the Assignee in respect of any
default or any acquiescence in any such default affect or impair any right
power privilege or remedy of the Assignee in respect of any other or subsequent
default.
17. It is hereby agreed that any admission or acknowledgment in writing by the
Assignor or any authorised person(s) on behalf of the Assignor or a statement
of account showing the indebtedness of the Assignor in relation to the Loan
duly certified by an authorised officer of the Assignee shall (save and except
for any manifest error) be binding and conclusive against the Assignor and its
successors-in-title.
18. The security liabilities and/or obligations created by this instrument
shall continue to be valid and binding for all purposes whatsoever
notwithstanding any change by amalgamation reconstruction or otherwise which
may be made in the constitution of the Assignee and similarly the security
liabilities and or
52
7
obligations created by this instrument shall continue to be valid and binding
for all purposes whatsoever notwithstanding any change by amalgamation
reconstruction or otherwise howsoever in the constitution of the Assignor and
it is expressly declared that no change of any sort whatsoever in relation to
or affecting the Assignor shall in any way affect the security liabilities and
or obligations created hereunder in relation to any transaction whether past
present or future.
19. This Assignment shall be governed by and construed in accordance with the
laws of Malaysia but in enforcing this instrument, the Assignee shall be at
liberty to initiate and take action or proceedings or otherwise against the
Assignor in Malaysia and/or elsewhere as the Assignee may deem fit and the
parties hereto hereby agree that where any actions or proceedings are initiated
and taken in Malaysia they shall submit to the nonexclusive jurisdiction of the
Courts of Malaysia in all matters connected with the obligations and
liabilities of the parties hereto under or arising out of this instrument and
the service of any writ of summons or any legal process in respect of any such
action or proceeding may be effected on the Assignor and/or the Assignee by
forwarding a copy of the writ of summons statement of claim or other legal
process by prepaid registered post to their respective addresses as indicated
herein.
20. Any term condition stipulation provision covenant or undertaking of this
instrument which is illegal prohibited or unenforceable in any jurisdiction
shall as to such jurisdiction be ineffective to the extent of such illegality,
voidness, prohibition or unenforceability without invalidating the remaining
provisions hereof and any such illegality voidness prohibition or
unenforceability in any jurisdiction shall not invalidate or render illegal
void or unenforceable any such term condition stipulation provision covenant or
undertaking in any other jurisdiction.
21. It is hereby agreed and declared that this Assignment is collateral to the
Loan Agreement and the Debenture created by the Assignor pursuant thereto to
secure the repayment by the Assignor to the Assignee the principal of the Term
Loan and interest thereon and for the purpose of Section 4(3) and Item 27(b) of
the First Schedule to the Xxxxx Xxx, 0000, the Assignment shall be deemed to be
the collateral instrument.
22. This Assignment shall be binding upon and enure for the benefit of the
successors-in-title and permitted assigns of the Assignor and the
successors-in-title and assigns of the Assignee.
53
8
23. All costs and incidental to this Assignment shall be borne and paid for by
the Assignor.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and
seal the day and year first above written.
The Common Seal of ANTAH )
DRILLING SDN. BHD. was )
hereunto affixed in the )
presence of:- )
/s/ YAM TUNKU IMRAN IBNI TUNAKU JA'AFAR /s/ MISNI XXXXXX XXXXXXX
--------------------------------------- ------------------------
Director Director/Secretary
SIGNED by Xxxxx Xxxxx Fatt )
the Attorney for and on )
behalf THE HONGKONG AND ) /s/ XXXXX XXXXX FATT
SHANGHAI BANKING CORPORATION )
LIMITED) in the presence of:- )
/s/ XXXXXX XXXX XXXX XX
-----------------------
XXXXXX XXXX XXXX XX
Advocate & Solicitor,
No. 2. Benteng,
Kuala Lumpur.
54
9
I, XXXXXX XXXX XXXX XX an Advocate and Solicitor of the High Court in
Malaya practising at Kuala Lumpur, Malaysia hereby certify that on this 14th
day of December 1995 the Common Seal of ANTAH DRILLING SDN. BHD. was duly
affixed to the within written instrument in my presence in accordance with the
regulations of the said Company.
Witness my hand.
/s/ Xxxxxx Xxxx Xxxx XX
-----------------------
Advocate & Solicitor.
XXXXXX XXXX XXXX XX
Advocate & Xxxxxxxxx,
Xx. 0, Xxxxxxx,
Xxxxx Xxxxxx.
55
10
FORM OF NOTICE OF ASSIGNMENT
(Letterhead of Assignor)
To:
Esso Australia Ltd.,
(A.C.N. 000 018 566)
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxx
XXXXXXXXX
Sir/Madam
NOTICE OF ASSIGNMENT
Contract Agreement No.
dated the day of
made between Esso Australia Ltd. and
Antah Drilling Sdn. Bhd. (herein "the Contract")
We hereby give you notice that by an Assignment dated the day
of 1995 made by us in favour of THE HONGKONG AND
SHANGHAI BANKING CORPORATION LIMITED of 0, Xxxxx Xxxxxxx, 00000 Xxxxxx,
Xxxxxxxx (herein "the Bank") we have assigned absolutely to the Bank all our
rights, title and interest in all sums payable to us under the Contract.
You are hereby directed to pay all such sum of moneys pursuant to the
Contract as and when they become payable to the Bank to the account of the
Borrower with the Bank as more particularly set out below:-
USD Payments Australian Dollars Payments
------------ ---------------------------
The Bank is authorised to accept all such moneys on our behalf and the
acknowledgement of receipt of the Bank for such moneys paid to the Bank shall
be a full and sufficient discharge to you for such payments.
We shall remain liable to perform our obligations under the Contract and
the Bank does not assume any obligation to perform the obligations imposed on
us under the Contract.
Please acknowledge to the Bank the receipt of this notice in the form of
the acknowledgement attached on the enclosed copies of this notice and deliver
one copy to us and the other copy to the Bank.
Yours faithfully,
56
11
FORM OF ACKNOWLEDGEMENT
(Letterhead of Esso Australia Ltd.)
To:
The Hongkong And Shanghai Banking Corporation Limited
0, Xxxxx Xxxxxxx
00000 Xxxxxx
Xxxxxxxx
[Date]
Dear Sir,
Re: Notice of Assignment from Antah Drilling Sdn. Bhd.
Contract Agreement No.
dated the day of
made between Esso Australia Ltd. and
Antah Drilling Sdn. Bhd. (herein "the Contract")
We hereby acknowledge notice of assignment dated the day of 199
in your favour from Antah Drilling Sdn. Bhd. in respect of the Contract.
In compliance therewith we hereby undertake to remit all moneys due to
Antah Drilling Sdn. Bhd. as and when they become payable under the Contract for
the credit of Antah Drilling Sdn. Bhd. at the specified account in your Notice
of Assignment. We confirm that we shall comply with the directions given by you
to us in your capacity as assignee of the proceeds of the Contract provided
such instructions are in accordance with the provisions of the Contract.
Yours faithfully,
---------------------------
Authorised Signatory
ESSO AUSTRALA LTD.
57
DATED THIS 16TH DAY OF OCTOBER, 1995
BETWEEN
ANTAH DRILLING SDN. BHD.
AND
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(OFFSHORE BANKING UNIT, LABUAN)
***********************************
DEBENTURE
***********************************
XXXXXX XXXXXXXX & CO.,
ADVOCATES & XXXXXXXXXX,
XX. 0 XXXXXXX,
00000 XXXXX XXXXXX.
AND AT
16TH FLOOR,
WISMA HAMZAH-XXXXX XXXX,
XX. 0 XXXXX XXXXXX,
00000 XXXXX XXXXXX.
00
X X X X X T U R E
Issued pursuant to Clause 3 (v) of the Company's Memorandum of Association and
Article 59(c) of the Company's Articles of Association and a Resolution of the
Board of Directors passed on the 8th day of August, 1995.
THIS DEED OF DEBENTURE is made the 16th day of October, 1995.
WHEREAS: -
A. ANTAH DRILLING SDN. BHD. is a company incorporated in Malaysia with
its registered office at 9th Floor, Bangunan BNH, Off Xxxxx Xxxxxxxx, Xxxxxxxxx
Xxxxxxx, 00000 Xxxxx Xxxxxx (hereinafter called "the Company").
B. The Company is the beneficial owner of two (2) platform drilling/workover
Rigs namely Rig 488 and Rig 489 (formerly known as Rig No. 450) more
particularly described in Schedule A attached hereto together with all
ancillary equipment, spare and replacement parts thereto (hereinafter
collectively called "the Property").
C. The Property is presently charged to:-
(i) Intairdril Ltd. of c/o Pool Company, 00000 Xxxxxxxx, Xxxxxxx, Xxxxx,
Xxxxxx Xxxxxx of America, (hereinafter called "Intairdril") under a
memorandum of charge dated the 13th day of December, 1988
(hereinafter called "the First Charge");
(ii) the Company has, inter alia, pursuant to a loan agreement dated the
28th day of April, 1995 and the debenture of the same date
(hereinafter called "the Second Charge") executed in favour of THE
HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, a corporation
constituted by the Hongkong and Shanghai Bank Ordinance 1866 and
continued by The Hongkong and Shanghai Banking Corporation Limited
Ordinance, Chapter 70 of the Laws of Hong Kong and having its
Off-Shore Banking Unit in Labuan at 0, Xxxxx Xxxxxxx, 00000 Xxxxxx,
Xxxxxxxx (hereinafter called "the Bank") a second fixed charge over
the Property as security for banking facilities granted by the Bank
to the Company up to the sum of United States Dollars Four million
(USD4,000,000/-) for principal together with interest thereon.
59
2
D. The Company has applied to the Bank and the Bank has agreed to grant or
extend to the Company an additional loan of United States Dollars Twenty-three
million five hundred thousand (USD23,500,000/-) (hereinafter called "the Loan")
upon the terms and conditions set out in the loan agreement of even date made
between the Bank of the one part and the Company of the other part (hereinafter
called "the Loan Agreement") and upon the security, inter alia, of this
Debenture.
NOW THIS DEBENTURE WITNESSETH as follows:-
1. DEFINITIONS AND INTERPRETATION
In this Debenture unless the context otherwise requires the definitions
contained in the Loan Agreement shall apply hereto mutatis mutandis as if the
same were incorporated herein.
2. COVENANT TO PAY
In consideration of the Bank agreeing to make available to the Company the
Loan on the terms and subject to the conditions contained in the Loan
Agreement, the Company hereby covenants with the Bank that the Company shall
pay to the Bank in accordance with the terms of the Loan Agreement all moneys
due or to become due to the Bank under or in connection with the Bank Security
Documents and shall duly properly and punctually discharge all its obligations
and liabilities thereunder.
3. SECURITY
3.1 Charge
For the consideration aforesaid the Company as beneficial owner HEREBY
CHARGES the Property as a continuing security for the payment of all moneys and
liabilities whatsoever agreed to be paid under the Bank Security Documents or
intended to be hereby secured (including all fees, charges, costs and expenses
arising out of or in connection with the provisions of this Debenture) by way
of a third fixed charge.
3.2 Consent and Ranking of Priorities
It is hereby agreed and declared with the express consent of Intairdril
(which consent is annexed hereto) that this Charge shall rank in point of
security after the First Charge created by the Company in favour of Intairdril
and the Second Charge created by the Company in favour of the Bank.
60
3
3.3 Restriction against other charges
(a) The Company hereby declares that, other than the First Charge and the
Second Charge which rank in point of security prior to the Charge created under
this Debenture, there is no mortgage charge debenture pledge lien or other form
of security upon the Property secured by this Debenture having priority rights
or pari passu rights with this Debenture.
(b) The Company shall not during the subsistence of the Bank Security
Documents without the prior consent in writing of the Bank execute any form of
charge mortgage debenture (whether fixed or floating) pledge or lien in respect
of the assets of the Company secured under the Bank Security Documents.
(c) This Debenture shall be without prejudice to any security already
given by the Company to the Bank or any security which may hereafter be given
to it by the Company whether the same be for securing repayment of the
principal amount and interest thereon or any part thereof or any other money
convenanted to be paid herein and whether such security is taken as additional
or collateral security or otherwise howsoever.
3.4 Continuing Security
The security granted under this Debenture is expressly intended to be and
shall be a continuing security for all moneys whatsoever now or hereafter from
time to time owing to the Bank by the Company under the Bank Security Documents
whether alone or jointly and severally with another or others and whether as
principal or surety notwithstanding that the Company may at any time or times
cease to be indebted to the Bank for any period or periods and notwithstanding
that the account or accounts of the Company with the Bank may from any cause
whatsoever cease to be a current account or accounts and notwithstanding any
settlement of account or accounts or otherwise.
4. BANK'S SECURITY DOCUMENTS
The Company hereby covenants with the Bank that it will duly, punctually
and properly observe and perform all the terms covenants and conditions on its
part to be observed and performed under the Bank's Security Documents.
5. SECURITY ENFORCEABLE WITHOUT RESTRICTIONS
It is hereby agreed between the parties hereto that (to the extent that
the same be excluded by mutual agreement) any restriction on enforcement by the
Bank of the charge hereby created and any requirement of prior notice imposed
by the laws of Malaysia shall not apply to this Debenture and that the monies
hereby secured shall become immediately payable and the power of sale shall
become immediately exercisable upon the due service of any notice by the Bank
on the Company pursuant to Section
61
4
10.01 of the Loan Agreement declaring that the principal of and the interest
relating to the Loan and all other sums payable under the Bank Security
Documents in respect of the Loan are immediately due and payable.
6. RIGHTS ON DEFAULT
At any time after the principal moneys interest and other moneys hereby
secured shall have become payable under Section 10.01 of the Loan Agreement the
Bank shall be entitled to exercise all or any of the following powers:-
(i) the Bank or any person authorised by the Bank to enter into or upon
any land or premises where the Property and assets as are secured
under the Bank Security Documents are without any notice and may take
possession and control of such land and premises (to the extent
permitted by law) and the Property and assets secured under the Bank
Security Documents and all books of account and documents relating to
the same.
(ii) the Bank may at its discretion be at liberty to give any notice which
may be deemed necessary by it to any person or persons owing money to
the Company that all such moneys be paid to the Bank alone and the
Company hereby irrevocably appoints the General Manager and or
Manager and or any officer of the Bank to be its attorney to demand
xxx for and recover and take all appropriate legal proceedings to
recover such moneys and to give a good receipt for the same and to
give such notices to the debtors of the Company and take all
necessary steps to complete the assignment of such moneys to the Bank
as may be necessary.
(iii) The Manager and or Assistant Manager and or any officer of the Bank
may appoint any competent person or persons not precluded under the
provisions of Section 182 of the Companies Act, 1965 to be Receiver
and or Manager or Receivers and or Managers of the properties and
assets hereby charged and may in like manner from time to time remove
any Receiver and or Manager or Receivers and or Managers so appointed
and appoint another or others in his or their stead.
(iv) the Bank may effect the sale of any of the properties and assets
charged under the Bank Security Documents or otherwise deal therewith
upon giving not less than seven (7) days notice of such intended sale
to the Company in such manner as the Bank shall think proper with
liberty in the case of a sale or dealing to buy and resell the same
and the Bank shall not be liable for any loss caused to the Company
thereby
62
5
other than loss caused by the Bank's wilful default and the Company
shall do all things necessary to enable the Bank to complete the sale
by the Bank of any of the Company's properties included in the Bank
Security Documents.
7. POWERS OF RECEIVER AND MANAGER
A Receiver and/or Manager or Receivers and/or Managers so appointed shall
be the agent of the Company and the Company shall be solely responsible for his
or their acts or defaults and for his or their remuneration. The Receiver
and/or Manager or Receivers and/or Managers shall be appointed for all purposes
and shall have power but not exclusively:-
(i) to take possession of or collect and get in all or any of the
Property hereby charged and for that purpose to take any proceedings
in the name of the Company or otherwise as may seem expedient;
(ii) to carry on manage or concur in carrying on and managing the business
of the Company or any part thereof in connection with the Property,
and for any of those purposes to raise or borrow any money that may
be required upon the security of the whole or any part of the
Property hereby charged;
(iii) to raise and borrow money on the security of any or all of the
Company's assets and property charged under the Bank Security
Documents upon such terms as he or they shall think fit;
(iv) to sell or concur in selling and to let or concur in letting and to
accept surrenders of leases of any of the Property charged to the
Bank under the Bank Security Documents. In exercising the power of
sale hereby conferred the Receiver and/or Manager or Receivers and/or
Managers may sell at such time and in such manner and at such price
as he or they may in his or their absolute discretion think fit and
in exercising such discretion he or they may have regard to the views
and desires of the Bank. The Receiver and/or Manager or Receivers
and/or Managers shall not be accountable for any loss or damage which
may be alleged to have been suffered by the Company by reason of the
exercise of his or their discretion;
(v) to make any arrangement or compromise which he or they shall think
expedient bring take defend discontinue any actions suits or
proceedings whatsoever in relation to the Property charged under the
Bank Security Documents;
63
6
(vi) to make calls conditionally or unconditionally on the members of the
Company in respect of its uncalled capital with such and the same
powers for the purpose of enforcing payment of any calls so made as
are by the Articles of Association of the Company conferred upon the
directors of the Company in respect of calls authorised to be made by
them and in the names of the directors or in the name of the Company
and to the exclusion of the directors' power in that behalf;
(vii) to appoint managers agents officers servants and workmen for any of
the aforesaid purposes at such reasonable salaries and for such
reasonable periods as he or they may determine;
(viii) to do all such other acts and things as may be considered to be
incidental or conducive to any of the matters or powers aforesaid and
which he or they may or can lawfully do as agent(s) of the Company.
8. APPOINTMENT OF RECEIVER AND MANAGER AS ATTORNEY
Subject to Clause 6 hereof, the Company hereby irrevocably appoints
any and every Receiver and Manager or Receivers and Managers appointed as
aforesaid and his or their substitute or substitutes the attorney or attorneys
of the Borrower, where more than one jointly and severally and on its behalf
and as its acts and deeds to execute sign seal and deliver and otherwise
perfect any deed assurance agreement instrument or act which may be required or
may be deemed proper for any of the purposes set out in Clause 7 hereof and
with power for such attorney or attorneys to appoint or remove any substitute
or substitutes.
9. APPOINTMENT OF BANK AS ATTORNEY
9.1 Subject to Clause 6 hereof, the Company hereby irrevocably appoints the
Bank its servant agent or any person nominated by the Bank under the hand of
the Manager Sub-Manager or other officer for the time being of the Bank to be
the attorney and in its name and on its behalf and as its acts and deeds or
otherwise to sign seal deliver and otherwise perfect any legal or other
mortgage charge assignment transfer agreement deed assurance instrument or act
and to bring take defend prosecute compromise submit to arbitration and/or
discontinue any action suit or proceeding whatsoever which may be required or
may be deemed proper or expedient for the full exercise of all or any of the
powers hereby conferred on the Bank or the Receiver and Manager or Receivers
and Managers and also for the purpose of enforcement or realisation of the
security created herein.
9.2 The Company declares that any and all such acts done
64
7
deeds instruments and documents executed on behalf of the Company by the Bank
as aforesaid by virtue of the provisions hereof shall be as good valid and
effectual to all intent and purposes whatsoever as if the same has been duly
and properly done and executed by the Company itself and the Company hereby
undertakes to ratify and confirm all such acts done and deeds instruments and
documents executed by virtue of the authority and power hereby conferred.
10. PROCEEDS OF SALE
10.01 The net profits of carrying on the said business and the net proceeds
of any sale shall be applied by the Receiver and/or Manager or Receivers and/or
Managers as follows:-
Firstly, in payment of all costs, charges and expenses of and
incidental to the appointment of the Receiver and/or Manager or
Receivers and/or Managers and the exercise by him or them of all or
any of the powers aforesaid including reasonable remuneration of the
Receiver and/or Manager or Receivers and/or Managers;
Secondly, subject to the rights of Intairdril under the First Charge
and the Bank under the Second Charge in or towards payment to the Bank
of all interest accrued under the Bank Security Documents and
remaining unpaid;
Thirdly, in or towards payment to the Bank of all principal and other
monies due to the Bank and intended to be secured under the Bank
Security Documents Provided Always that if the Bank shall be of the
opinion that the security may prove deficient, payments may be made to
the Bank at the request of the Bank on account of principal before the
interest or the whole of the interest due has been paid but such
alteration in the order of payment shall not prejudice the rights of
the Bank to receive the full amount to which it would have been
entitled if the primary order of payment have been observed or any less
amount which the sum ultimately realised from the security may be
sufficient to pay;
Lastly, any surplus shall be paid to the persons legally entitled
thereto,
Save as aforesaid the Bank shall be under no liability to the Receiver
and/or Manager or Receivers and/ or Managers for his or their remuneration
costs, charges or expenses or otherwise.
10.02 Deficiency in Proceeds of Sale
If the amount realised by the Bank on a sale of the Property under the
provisions of Section 10.01 hereof after deduction and payment from the
proceeds of such sale of all fees
65
8
dues costs charges and expenses incidental thereto is less than the amount due
to the Bank under the Bank Security Documents and whether at such sale the Bank
is the purchaser of the Property or otherwise the Company shall pay to the Bank
the difference between the amount due and the amount so realised and until
payment will also pay interest on such balance at the Prescribed Rate before as
well as after any Court order or judgment.
11. INSURANCE
11.01 Insurance
The Company shall at all times throughout the duration of the Bank
Security Documents keep the Property in good order and condition and insured by
the Company at its expense in its name for such value which shall not be less
than the net book value of the Property, (at all material times), against loss
or damage by fire, lightning, tempest, flood, malicious acts and against such
other risks as the Bank may from time to time think expedient and which risks
are normal and customary in respect of the Property with an insurance company
or companies acceptable to the Bank and shall arrange with such insurance
company to have the interests of the Bank as mortgagees/chargees of the
Property to be duly endorsed on such policy or policies of insurance. If
default is made by the Company in effecting maintaining or renewing any such
insurance as aforesaid it shall be lawful for but not obligatory upon the Bank
at the cost and expense of the Company to effect maintain or renew any such
insurance as the Bank may think fit and any sum if expended by the Bank
together with interest thereon at the Prescribed Rate from the date of such
payment by the Bank shall be recovered from the Company and shall be repaid on
demand being made by the Bank.
11.02 Restriction Against Additional Insurance
Apart from the insurance required to be effected by the Company
pursuant to Section 11.01 hereof the Company shall not except with the consent
in writing of the Bank effect or maintain any insurance in respect of the
Property.
11.03 Premium receipts
The Company shall provide the Bank with documentary evidence
satisfactory to the Bank pertaining to all insurance policies required to be
effected by the Company pursuant to Section 11.01 hereof and the receipts of
payment of premium in respect of the same paid by the Company and will when
required deliver and produce to the Bank or cause to be produced or delivered
to the Bank or to such persons as it may direct the policy of such insurance
effected by the Company.
66
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11.04 Application of insurance monies
Any monies received on any insurance of the Property secured under
this Debenture shall be applied in or towards making good the loss or damage in
respect of which the money is received or receivable unless there is a total or
constructive total damage to the Property in which event the monies received or
receivable shall at the Bank's option be utilised by the Bank in or towards the
discharge of the monies secured hereunder or towards the repair of the
Property. The Company shall hold any monies received on such insurance in trust
for the Bank and the Bank may receive and give a good discharge for any such
monies.
11.05 Workmen's Compensation Insurance
The Company shall take out and maintain for such amount and with such
insurance company as shall be approved by the Bank (which approval shall not be
unreasonably withheld) in respect of Workmen's Compensation Insurance for all
employees of the Company or alternatively comply with any law for the time
being related to the establishment of social security scheme or benefits for
employees.
12. APPOINTMENT OF RECEIVER AND MANAGER NOT AFFECTING OTHER POWERS
The powers of appointment of a Receiver and/or Manager or Receivers
and/or Managers hereunder shall be in addition to and not to the prejudice of
any statutory and other powers (whether of sale, receiving rents, distraining
for rents or otherwise) of the Bank or otherwise and so that such powers shall
be and remain exercisable by the Bank in respect of any of the property or
assets comprised in the Bank Security Documents and of which no appointment of
a Receiver and/or Manager or Receivers and/or Managers by the Bank shall from
time to time be subsisting and that notwithstanding that an appointment under
the provisions hereof shall have subsisted and been withdrawn in respect of
that property or assets or shall be subsisting in respect of any other property
hereby charged.
13. NO ENQUIRY BY THIRD PARTY
Any person dealing with the Bank or the Receiver and/or Manager or
Receivers and/or Managers shall not be concerned to enquire whether any event
has happened upon which any of the powers contained in these presents are or
may be exercisable by the Bank or the Receiver and/or Manager or Receivers
and/or Managers or otherwise as to the propriety or regularity of any exercise
thereof or of any act purporting or intended to be an exercise thereof or
whether any money remains owing upon the Bank Security Documents.
67
10
14. THE BANK NOT ANSWERABLE FOR LOSS
The Bank shall not be answerable for any involuntary loss happening in
or about the exercise or execution of the powers or trusts which may be vested
in the Bank by virtue of this Debenture or by law for the time being in force.
15. LAW
This Debenture shall be governed and construed in all respect in
accordance with the laws of Malaysia.
16. INCORPORATION OF LOAN AGREEMENT PROVISIONS
All the provisions of the Loan Agreement shall be deemed to be
incorporated into and form part of this Debenture (whether such provisions are
repeated herein or not) subject to such alterations or variations where
necessary to make the provisions of this Debenture consistent with the
provisions of the Loan Agreement and in the event of any conflict or
discrepancy between the provisions of the Loan Agreement and any of the
provisions of this Debenture, the provisions of the Loan Agreement shall
prevail.
17. PRINCIPAL AND COLLATERAL INSTRUMENTS
It is hereby agreed and declared by and between the parties hereto
that for the purpose of Section 4(3) and Item 27 of the First Schedule to the
Xxxxx Xxx, 0000, this Debenture, the Loan Agreement are instruments employed in
one transaction to secure the payment of a principal amount of up to United
States Dollars Twenty-three million five hundred thousand (USD23,500,000/-) and
that for the purposes of Section 4(3) and Item 27 of the First Schedule to the
Xxxxx Xxx 0000, the Loan Agreement shall be deemed to be the principal
instrument and this Debenture shall be deemed to be the subsidiary instrument
and collateral security.
AS WITNESS the Common Seal of the Company was hereunto affixed and the
Attorney for the Bank has hereunto set his hand.
The Common Seal of ANTAH )
DRILLING SDN. BHD. was )
hereunto affixed in the )
presence of:- )
/s/YAM TUNKU IMRAN IBNI TUNANKU JA'AFAR /s/MISNI XXXXXX XXXXXXX
--------------------------------------- -----------------------
Director Director/Secretary
68
11
Signed by Xxxxx Xxxxx Fatt )
the Attorney for and on )
behalf of THE HONGKONG AND )
SHANGHAI BANKING CORPORATION ) /s/XXXXX XXXXX FATT
LIMITED in the presence of:- )
/s/ XXXXXX XXXX XXXX XX
-----------------------
XXXXXX XXXX XXXX XX
Advocate & Xxxxxxxxx,
Xx. 0, Xxxxxxx,
Xxxxx Xxxxxx.
I, XXXXXX XXXX XXXX XX an Advocate and Solicitor of the High Court in
Malaya practising at Kuala Lumpur, Malaysia hereby certify that on this 16th
day of October 1995 the Common Seal of ANTAH DRILLING SDN. BHD. was duly
affixed to the within written instrument in my presence in accordance with the
regulations of the said Company.
Witness my hand.
/s/ XXXXXX XXXX XXXX XX
Advocate & Solicitor.
XXXXXX XXXX XXXX XX
Advocate & Xxxxxxxxx,
Xx. 0, Xxxxxxx,
Xxxxx Xxxxxx,
This is the last of the execution page of the Debenture made between
Antah Drilling Sdn. Bhd. as the Company of the one part and The Hongkong And
Shanghai Banking Corporation Limited as the Bank of the other part.
69
12
SCHEDULE "A"
The Property
Description of Rig
(Antah Drilling Sdn. Bhd. Rig No. 448
(replaced by Rig No. 488))
Description of Rig
(Antah Drilling Sdn. Bhd. Rig No. 489
(formerly known as Rig No. 450)
which includes the replacement Rig
howsoever numbered after up-grading and modification)
One (1) Pool Self-Contained Platform Rig Featuring National 1320 UE Drawworks
Powered by 2 ea. GE-752 Electric Motors, with Elmago Brake and Disc Brakes;
Dreco 1000 K Net Hookload Mast 152 ft. High;
2 xx Xxxxxxx Denver PZ-11 Mud Pumps ea. Powered by 2 ea. GE-752 Electric
Motors;
Oilwell B - 37 1/2" Rotary Table Independently Driven by GE - 752 Electric
Motor;
Xxxx Xxxx SCR Controlled Power System Consisting of 5 ea. Caterpillar D-399
Diesel Engines w/Kato 6P6-2700 Generators;
Bulk Storage for 3000 C.F. Cement, 2000 C.F. Barite, with Piping System to
Load, Store or Transfer Bulk Materials;
17,000 ft. 5 1/2" Drill String w/5" Hevi-Wate Pipe, 8" and 6 1/2" Drill Collars
Including all Sub and X-overs;
Varco TDS-4S Top Drive Retractable System with PH-85 Pipe Handler;
EMSCO 500 Ton Travelling Block Assembly;
Varco Star-2 Racking System;
Varco AR3200 Iron Roughneck;
Xxxxx XX-26 Hydraulic Catheads;
M.D. Totco Drillers Cabin for Driller, Assistant Driller and Pipe Mite Operator
to Include DAQ Processing unit. Spectrum 1000, Visulogger, VIP plus Data
Logging Module, Total Block Control System;
70
13
Varco PDM (Pipe Mite) Assembly;
Varco Conveyor;
Mud Process Equipment Include Three (3) Thule Shale Shakers, Desanders,
Desilter, Mud Gas Separator and Flow Trend Polymer Jet Shear Unit;
1500 bbl. Mud System;
Closed Circuit Colored T.V. Monitor System;
Vetco Xxxx KFDJ Fixed Diverter System;
Xxxxxxx 13 5/8" 5000 psi B.O.P. System to Include One (1) Annular and Three (3)
Single RAM Preventers and 15 Sets of RAM;
Xxxxxxx B.0.P. Control System.
71
[INTAIRDRIL LOGO]
APPENDIX 1
INTAIRDRIL LTD
X/X XXXX XXXXXXX
X.X. XXX 0000 [77210]
00000 XXXXXXXX XXXXXX
XXXXXXX, XXXXX 00000
X.X.X.
TELEPHONE: [713} 000-0000
TELEX 775-957
October 10, 1995
The Hongkong and Shanghai Banking
Corporation Limited
Offshore Banking Unit Labuan
0 Xxxxx Xxxxxxx
00000 Xxxxxx
XXXXXXXX
RE: A Debenture to be created over two (2) oil rigs owned by
Antah Drilling Sdn. Bhd., namely Rig 488 (which replaces
Rig 448) and Rig 489 (which replaces Rig 450) together with
all equipment, spare and replacement parts thereto, to be
executed in your favor ranking after the Charge in favor of
Intairdril Ltd. dated the 13th day of December 1988
Dear Sirs:
We, Intairdril Ltd., c/o Pool Company, 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx,
HEREBY CONFIRM our consent as First Chargee to the creation of a third Charge
by way of a Debenture in your favor (herein "the Debenture") over the
above-mentioned properties ranking after our Charge over same dated the 13th
day of December 1988.
Our consent hereto has been given on the basis that any foreclosure action to
be taken by you under the Debenture will be subject to your having given notice
to us by facsimile or certified courier to the following address:
Intairdril Ltd.
c/o Pool Company
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Group Vice President - International Operations
Copy To: Treasurer
Facsimile: 713/954-3244
Very truly yours,
INTAIRDRIL LTD.
By: /s/ X.X. XXXXXXXXXX
----------------------------
Title: CHAIRMAN AND PRESIDENT
----------------------------
