EXHIBIT 10.30
Dated 2 June 2000
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R&B FALCON CORPORATION (1)
and
SOVEREIGN CORPORATE LIMITED (2)
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CONTINGENT UNDERTAKING
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Contents
Clause Page
1 Interpretation 1
2 Undertaking 2
3 Payments and Taxes 5
4 Representations and warranties 7
5 Undertakings 10
6 Benefit of this Undertaking 11
7 Notices and other matters 12
8 Law and jurisdiction 13
THIS UNDERTAKING is dated 2 June 2000 and made BETWEEN:
(1) R&B FALCON CORPORATION a Delaware corporation whose principal
place of business is situate at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (the "Lessee Parent", which expression includes its
successors); and
(2) SOVEREIGN CORPORATE LIMITED a company incorporated in England and
Wales whose registered office is situated at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (the "Lessor", which expression
includes its successors and permitted transferees and assignees).
WHEREAS:
(A) by a lease agreement (the "Lease") dated 2 June 2000 and made
between the Lessor (1) and R&B Falcon Deepwater (UK) Limited (the
"Lessee") (2) the Lessor has agreed to lease and the Lessee has
agreed to take on lease the Rig (as defined in the Lease) upon
the terms and conditions therein mentioned; and
(B) the execution and delivery of this Undertaking is one of the
conditions precedent to the Lessor leasing the Rig to the Lessee
pursuant to the Lease.
IT IS AGREED as follows:
1 Interpretation
1.1 Defined expressions
In this Undertaking, unless the context otherwise requires or
unless otherwise defined in this Undertaking, words and
expressions defined in the Lease and used in this Undertaking
shall have the same meaning where used in this Undertaking.
1.2 Definitions
In this Undertaking, unless the context otherwise requires:
"Ancillary Lease Security Documents" means notes, bills of
exchange, certificates of deposit and other negotiable and non-
negotiable instruments, guarantees, indemnities and other
assurances against financial loss and any other documents or
instruments which contain or evidence an obligation (with or
without security) to pay, discharge or be responsible directly or
indirectly for, any indebtedness or liabilities of the Lessee or
any other person liable for the Contingent Liabilities and
includes any documents or instruments creating or evidencing a
mortgage, charge (whether fixed or floating), pledge, lien,
hypothecation, assignment, trust arrangement or security interest
of any kind;
"Contingent Liabilities" means all moneys, obligations and
liabilities expressed to be undertaken by the Lessee Parent in
clause 2.1;
"Excluded Liabilities" means all the liabilities and obligations
of the Lessee to the Lessor under the Lease assumed from time to
time by the Payment Bank pursuant to the Payment Agreement and
the Letter of Credit and in respect of which liabilities and
obligations the Lessee has from time to time been granted a
release whether pursuant to the Lessee Release Letter or any
other arrangement agreed between the Lessor and the Lessee
including, without limitation, clause 25.1 (a)(i)(F) of the
Lease;
"Incapacity" means, in relation to a body corporate the
insolvency, liquidation, dissolution, winding-up, administration,
receivership, amalgamation, reconstruction or other incapacity of
that body corporate whatsoever (and, in the case of a
partnership, includes the termination or change in the
composition of the partnership);
"Indenture Obligations" has the meaning ascribed to that
expression in the Proceeds Deed;
"Relevant Jurisdiction" means any jurisdiction in which or where
the Lessee Parent is incorporated, resident, domiciled, has a
permanent establishment, carries on, or has a place of business
or to which it is otherwise effectively connected; and
"Undertaking" includes each separate or independent stipulation
or agreement by the Lessee Parent contained in this Undertaking.
1.3 Headings
Clause headings and the table of contents are inserted for
convenience of reference only and shall be ignored in the
interpretation of this Undertaking.
1.4 Construction of certain terms
In this Undertaking, unless the context otherwise requires:
1.4.1 references to clauses are to be construed as references to the
clauses of this Undertaking;
1.4.2 references to (or to any specified provision of) this Undertaking
or any other document shall be construed as references to this
Undertaking, that provision or that document as in force for the
time being and as amended from time to time in accordance with
the terms thereof, or, as the case may be, with the agreement of
the relevant parties;
1.4.3 words importing the plural shall include the singular and vice
versa;
1.4.4 references to a time of day are to London time;
1.4.5 references to a person shall be construed as including references
to an individual, firm, company, corporation, unincorporated body
of persons or any Government Entity; and
1.4.6 references to an "undertaking" include references to an indemnity
or other assurance against financial loss including, without
limitation, any obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "undertaken" shall be construed accordingly; and
1.4.7 references to any enactment shall be deemed to include reference
to such enactment as re-enacted, amended or extended.
2 Undertaking
2.1 Covenant to pay
In consideration of the Lessor agreeing to lease the Rig to the
Lessee pursuant to the Lease the Lessee Parent hereby undertakes
to pay to the Lessor, on demand by the Lessor, all moneys and,
subject to the paragraph below, discharge all obligations and
liabilities now on hereafter due, owing or incurred by the Lessee
to the Lessor under or pursuant to the Lease and/or any of the
other Lease Documents (including, without limitation, all Rental,
Termination Sum, interest, fees, costs, charges and expenses),
when the same become due for payment or discharge, whether by
acceleration or otherwise and whether such moneys, obligations or
liabilities are express or implied, present, future or
contingent, joint or several incurred as principal or surety,
originally owing to the Lessor or purchased or otherwise acquired
by it, denominated in Sterling or in any other currency, or
incurred in any other manner whatsoever.
Notwithstanding the above (and without prejudice to the indemnity
obligations of the Lessee Parent in clause 2.2) where, in
relation to clauses 9.4(c), 11.2(d), 17.5(a), 18.3(a) and 29.2 of
the Lease the Lessee is obliged to release the Rig from arrest,
the Lessee Parent shall not be liable to perform the obligations
of the Lessee relating to release of the Rig from arrest pursuant
to such clauses should the Lessee fail to perform its obligations
under such clauses where the performance of such clauses by the
Lessee Parent would require the Lessee Parent to discharge,
release or assume any Indebtedness of the Lessee, the existence
of which has given rise to the arrest of the Rig, but in such
circumstances the Lessee Parent shall be liable to the Lessor for
any costs and expenses which the Lessor may incur or any damages
the Lessor may suffer as a result of the breach of any of such
clauses by the Lessee.
Such liabilities shall, without limitation, include interest (as
well after as before judgment) to date of payment at the Default
Rate, commission, fees and other changes and all legal and other
costs, charges and expenses on a full and unqualified indemnity
basis which may be incurred by the Lessor in relation to any such
moneys, obligations or liabilities or generally in respect of the
Lessee, the Lessee Parent or any Ancillary Lease Security
Documents.
2.2 Lessee Parent as principal obligor; indemnity
As a separate and independent stipulation, the Lessee Parent
agrees that if any purported obligation or liability of the
Lessee which would have been the subject of this Undertaking had
it been valid and enforceable is not or ceases to be valid or
enforceable against the Lessee on any ground whatsoever whether
or not known to the Lessor (including, without limitation, any
irregular exercise or absence of any corporate power or lack of
authority of, or breach of duty by, any person purporting to act
on behalf of the Lessee or any legal or other limitation, whether
under the Limitation Acts or otherwise or any disability or
Incapacity or any change in the constitution of the Lessee) the
Lessee Parent shall nevertheless be liable to the Lessor in
respect of that purported obligation or liability as if the same
were fully valid and enforceable and the Lessee Parent were the
principal obligor in respect thereof. The Lessee Parent hereby
agrees to keep the Lessor fully indemnified on demand against all
damages, losses, costs and expenses arising from any failure of
the Lessee to perform or discharge any such purported obligation
or liability.
2.3 Excluded Liabilities
The Lessor agrees that the liabilities of the Lessee Parent under
clauses 2.1 and 2.2 shall not include the Excluded Liabilities
and the Lessor further agrees that to the extent such liabilities
are in respect of Excluded Liabilities the amount of any claim by
the Lessor against the Lessee Parent under this Undertaking shall
be reduced by the amount of any such Excluded Liabilities.
2.4 Statements of account conclusive
Any certificate or determination of the Lessor as to the
Contingent Liabilities shall, in the absence of manifest error,
be binding and conclusive on and against the Lessee Parent but
such certificate or determination shall not over-ride the express
provisions of the Financial Schedule.
2.5 No security taken by Lessee Parent
The Lessee Parent warrants that it has not taken or received, and
undertakes that until all the Contingent Liabilities of the
Lessee have been paid or discharged in full, it will not take or
receive, the benefit of any security from the Lessee or any other
person in respect of its obligations under this Undertaking.
2.6 Interest
The Lessee Parent agrees to pay interest on each amount demanded
of it under this Undertaking from the date of such demand until
payment (as well after as before judgment) at the Default Rate
which rate shall apply to this Undertaking mutatis mutandis.
Such interest shall be compounded monthly in the event of it not
being paid when demanded but without prejudice to the Lessor's
right to require payment of such interest.
2.7 Continuing security and other matters
This undertaking shall:
2.7.1 secure the ultimate balance from time to time owing to the Lessor
by the Lessee and shall be a continuing security, notwithstanding
any settlement of account or other matter whatsoever;
2.7.2 be in addition to any present or future Ancillary Lease Security
Documents, right or remedy held by or available to the Lessor;
and
2.7.3 not be in any way prejudiced or affected by the existence of any
such Ancillary Lease Security Documents, rights or remedies or by
the same becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by the Lessor dealing
with, exchanging, varying or failing to perfect or enforce any of
the same or giving time for payment or indulgence or compounding
with any other person liable.
2.8 Liability unconditional
The liability of the Lessee Parent shall not be affected nor
shall this Undertaking be discharged or reduced by reason of:
2.8.1 the Incapacity or any change in the name, style or constitution
of the Lessee or any other person liable;
2.8.2 the Lessor granting any time, indulgence or concession to, or
compounding with, discharging, releasing or varying the liability
of, the Lessee or any other person liable or renewing,
determining, varying or increasing any accommodation, facility or
transaction or otherwise dealing with the same in any manner
whatsoever or concurring in, accepting or varying any compromise,
arrangement or settlement or omitting to claim or enforce payment
from the Lessee or any other person liable; or
2.8.3 any act or omission which would not have discharged or affected
the liability of the Lessee Parent had it been a principal debtor
instead of a Lessee Parent or by anything done or omitted which
but for this provision might operate to exonerate the Lessee
Parent.
2.9 Ancillary Lease Security Documents
The Lessor shall not be obliged to make any claim or demand on
the Lessee or to resort to any Ancillary Lease Security Documents
or other means of payment now or hereafter held by or available
to it before enforcing this Undertaking and no action taken or
omitted by the Lessor in connection with any such Ancillary Lease
Security Documents or other means of payment shall discharge,
reduce, prejudice or affect the liability of the Lessee Parent
under this Undertaking nor shall the Lessor be obliged to apply
any money or other property received or recovered in consequence
of any enforcement or realisation of any such Ancillary Lease
Security Documents or other means of payment in reduction of the
Contingent Liabilities.
2.10 Waiver of Lessee Parent's rights
Until all the Contingent Liabilities and all amounts owing to the
Lessor under the Lease Documents have been paid, discharged or
satisfied in full (and notwithstanding payment of a dividend in
any liquidation or under any compromise or arrangement) the
Lessee Parent agrees that, without the prior written consent of
the Lessor, it will not:
2.10.1 exercise its rights of subrogation, reimbursement and indemnity
against the Lessee or any other person liable;
2.10.2 after the occurrence of a Relevant Event demand or accept
repayment in whole or in part of any indebtedness now or
hereafter due to the Lessee Parent from the Lessee or from any
other person liable or demand or accept any Ancillary Lease
Security Documents in respect of the same or dispose of the same;
2.10.3 take any step to enforce any right against the Lessee or any
other person liable in respect of any Contingent Liabilities; or
2.10.4 claim any set-off or counterclaim against the Lessee or any other
person liable or claim or prove in competition with the Lessor in
the liquidation of the Lessee or any other person liable or have
the benefit of, or share in, any payment from or composition
with, the Lessee or any other person liable or any other
Ancillary Lease Security Documents now or hereafter held by the
Lessor for any Contingent Liabilities or for the obligations or
liabilities of any other person liable but so that, if so
directed by the Lessor, it will prove for the whole or any part
of its claim in the liquidation of the Lessee or any other person
liable on terms that the benefit of such proof and of all money
received by it in respect thereof shall be held on trust for the
Lessor and applied in or towards discharge of the Contingent
Liabilities in such manner as the Lessor shall deem appropriate.
2.11 Suspense accounts
Any money received in connection with this Undertaking (whether
before or after any Incapacity of the Lessee or the Lessee
Parent) prior to payment or discharge in full of all the
Contingent Liabilities may be placed to the credit of a suspense
account with a view to preserving the rights of the Lessor to
prove for the whole of its claims against the Lessee or any other
person liable or may be applied in or towards satisfaction of
such of the Contingent Liabilities as the Lessor may from time to
time conclusively determine in its absolute discretion.
2.12 Settlements conditional
Any release, discharge or settlement between the Lessee Parent
and the Lessor shall be conditional upon no security, disposition
or payment to the Lessor by the Lessee or any other person liable
being void, set aside or ordered to be refunded pursuant to any
enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other reason whatsoever
and if such condition shall not be fulfilled the Lessor shall be
entitled to enforce this Undertaking subsequently as if such
release, discharge or settlement had not occurred and any such
payment had not been made.
2.13 Lessee Parent to deliver up certain property
If, contrary to clauses 2.5 or 2.10 the Lessee Parent takes or
receives the benefit of any security or receives or recovers any
money or other property, such security, money or other property
shall be held on trust for the Lessor and shall be delivered to
the Lessor on demand.
2.14 Retention of this Undertaking
The Lessor shall be entitled to retain this Undertaking after as
well as before the payment or discharge of all the Contingent
Liabilities for such period as the Lessor may determine.
3 Payments and Taxes
3.1 No set-off or counterclaim
All payments to be made by the Lessee Parent under this
Undertaking shall be made in full, without any set-off or
counterclaim whatsoever and, subject as provided in clause 3.2,
free and clear of any deductions or withholdings, in Sterling on
the due date to the account of the Lessor referred to in
clause 8.1 of the Lease.
3.2 Grossing up for Taxes
3.2.1 If at any time any applicable law, regulation or regulatory
requirement, (whether or not having the force of law but in
respect of which compliance by banks or other financial
institutions or institutions of a similar nature to the Lessor in
the relevant jurisdiction as generally customary) or any
governmental authority, monetary agency or central bank requires
any deduction or withholding in respect of Taxes from any payment
due to the Lessor under this Undertaking the Lessee Parent shall:
(a) increase the payment in respect of which the deduction or
withholding is required to the extent necessary to ensure that,
after the making of such deduction or withholding, the Lessor
receives on the due date for such payment a net sum equal to the
sum which it would have received had no such deduction or
withholding been required to be made;
(b) the Lessee Parent shall pay to the relevant authority within the
period for payment permitted by applicable law the full amount of
the deduction or withholding (including, but without prejudice to
the generality of the foregoing, the full amount of any deduction
or withholding from any increased amount paid pursuant to this
clause 3.2); and
(c) the Lessee Parent shall furnish to the Lessor within the period
for payment permitted by applicable law, appropriate receipts
evidencing payment to the relevant authority of all amounts
deducted or withheld as aforesaid.
3.2.2 If the Lessor determines in its absolute discretion acting
reasonably and in good faith that the Lessor has retained and
utilised a tax benefit by reason of any deduction or withholding
as aforesaid (and the Lessor shall endeavour to realise or
receive such a tax benefit provided it is not otherwise
disadvantaged by doing so), which, in the Lessor's absolute
discretion acting reasonably and in good faith is referable to
any deduction or withholding as aforesaid, subject to the Lessee
Parent having complied with clause 3.2.1, the Lessor will, as
soon as reasonably practicable thereafter, reimburse to the
Lessee Parent the payment, or such part of the payment as will
leave the Lessor (after such reimbursement) in no better and no
worse position than it would have been in if no such deduction or
withholding had been required to be made, provided always that:
(a) the Lessor shall give a certificate setting out the basis of the
computation of the amount of any tax benefit referred to in
clause 3.2.2;
(b) the Lessor shall have an absolute discretion as to the
arrangement of its Taxation affairs and, in particular, the order
in which it employs or claims credit, refunds and allowances
available to it;
(c) if, following any such reimbursement by the Lessor, the tax
benefit in respect of which such reimbursement was made is
disallowed in whole or in part by any applicable taxing or other
authority, the Lessee Parent shall, upon demand, pay to the
lessor the amount necessary to restore the after tax position of
the Lessor to that which it would have been had no adjustment
under this proviso (iii) been necessary; and
(d) the Lessor shall not be obliged to make any such reimbursement
if, by doing so, it would contravene the terms of any applicable
notice, direction or requirement (having the force of law).
3.3 Currency indemnity
If any sum due from the Lessee Parent under this Undertaking or
any order or judgment given or made in relation hereto has to be
converted from the currency (the "first currency") in which the
same is payable under this Undertaking or under such order or
judgment into another currency (the "second currency") for the
purpose of (a) making or filing a claim or proof against the
Lessee Parent, (b) obtaining an order or judgment in any court or
other tribunal or (c) enforcing any order or judgment given or
made in relation to this Undertaking, the Lessee Parent shall
indemnify and hold harmless the Lessor from and against any loss
suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question
from the first currency into the second currency and (ii) the
rate or rates of exchange at which the Lessor may in the ordinary
course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
Any amount due from the Lessee Parent under this clause 3.2 shall
be due as a separate debt and shall not be affected by judgment
being obtained for any other sums due under or in respect of this
Undertaking and the term "rate of exchange" includes any premium
and costs of exchange payable in connection with the purchase of
the first currency with the second currency.
4 Representations and warranties
4.1 Continuing representations and warranties
The Lessee Parent represents and warrants that:
4.1.1 Due incorporation
the Lessee Parent and the other Relevant Parties are duly
incorporated and validly existing under the laws of the
respective countries or states of their incorporation as limited
liability companies (or, in the case of the Lessee, a private
limited company) and have power to carry on their respective
businesses as they are now being conducted and to own their
respective property and other assets;
4.1.2 Corporate power to Undertaking
the Lessee Parent has power to execute, deliver and perform its
obligations under this Undertaking; all necessary corporate,
shareholder and other action has been taken to authorise the
execution, delivery and performance of the same and no limitation
on the powers of the Lessee Parent to borrow or give undertakings
will be exceeded as a result of this Undertaking;
4.1.3 Binding obligations
this Undertaking constitutes valid and legally binding
obligations of the Lessee Parent enforceable in accordance with
its terms and each of the other Relevant Documents, upon
execution and delivery thereof, will constitute the legal, valid
and binding obligations of each Relevant Party and the SDDI
Contract constitutes legal, valid and binding obligations of the
relevant parties thereto;
4.1.4 No conflict with other obligations
the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, this Undertaking by
the Lessee Parent will not (i) contravene any existing applicable
law, statute, rule or regulation or any judgment, decree or
permit to which the Lessee Parent is subject, (ii) conflict with,
or result in any breach of any of the terms of, or constitute a
default under, any agreement or other instrument to which the
Lessee Parent is a party or is subject or by which it or any of
its property is bound, (iii) contravene or conflict with any
provision of the Lessee Parent's incorporation documents or
(iv) result in the creation or imposition of or oblige the Lessee
Parent or any of its Subsidiaries to create any Encumbrance on
any of the Lessee Parent's or its Subsidiaries' undertakings,
assets, rights or revenues;
4.1.5 No litigation
no litigation, arbitration or administrative proceeding is taking
place, pending or, to the knowledge of the officers of the Lessee
Parent, threatened against the Lessee Parent or the other
Relevant Parties which, if adversely determined could have a
material adverse effect on the business, assets or financial
condition of the Lessee Group taken as a whole;
4.1.6 Financial statements correct and complete
the audited financial statements of the Lessee Parent and the
audited consolidated financial statements of the Lessee Group in
respect of the financial year ended on 31 December 1999 as
delivered to the Lessor have been prepared in accordance with
Relevant GAAP which have been consistently applied and present
fairly and accurately the consolidated financial position of the
Lessee Parent and the Lessee Group respectively as at such date
and the consolidated results of the operations of the Lessee
Group for the financial year ended on such date and, as at such
date, neither the Lessee Parent nor any of the other companies in
the Lessee Group had any significant liabilities (contingent or
otherwise) or any unrealised or anticipated losses which are not
disclosed by, or reserved against or provided for in, such
financial statements;
4.1.7 No filings required
it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Undertaking
that it or any other instrument be notarised, filed, recorded,
registered or enrolled in any court, public office or elsewhere
in any Relevant Jurisdiction or that any stamp, registration or
similar tax or charge be paid in any Relevant Jurisdiction on or
in relation to this Undertaking and this Undertaking is in proper
form for its enforcement in the courts of each Relevant
Jurisdiction;
4.1.8 Choice of law
the choice by the Lessee Parent of English law to govern this
Undertaking and the submission by the Lessee Parent to the
non-exclusive jurisdiction of the English courts are valid and
binding;
4.1.9 No immunity
neither the Lessee Parent nor any of its assets is entitled to
immunity on the grounds of sovereignty or otherwise from any
legal action or proceeding (which shall include, without
limitation, suit, attachment prior to judgment, execution or
other enforcement); and
4.1.10 Consents obtained
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public
bodies or authorities or courts required by the Lessee Parent,
the Lessee, the Owner or SDDI to authorise, or required by the
Lessee Parent, the Lessee, the Owner or SDDI in connection with,
the execution, delivery, validity, enforceability or
admissibility in evidence of this Undertaking, the Lease
Documents, the Hire Purchase Agreement and the SDDI Contract or
the performance by the Lessee Parent, the Lessee, the Owner and
SDDI of their respective obligations under this Undertaking, the
Lease Documents, the Hire Purchase Agreement and the SDDI
Contract has been obtained or made and is in full force and
effect and there has been no default in the observance of the
conditions or restrictions (if any) imposed in, or in connection
with, any of the same.
4.2 Initial representations and warranties
The Lessee Parent further represents and warrants that:
4.2.1 No material adverse change
there has been no material adverse change in the financial
position of the Lessee Parent and the Lessee Group from that set
forth in the financial statements referred to in clause 4.1.6;
4.2.2 Pari passu
the obligations of the Lessee Parent under this Undertaking are
direct, general and unconditional obligations of the Lessee
Parent and rank at least pari passu with all other present and
future unsecured and unsubordinated Indebtedness of the Lessee
Parent save for obligations mandatorily preferred by law and not
by contract;
4.2.3 No default under other Indebtedness
neither the Lessee Parent nor any of the other Relevant Parties
is (nor would with the giving of notice or lapse of time or the
satisfaction of any other condition or any combination thereof
be) in material breach of or in default under any agreement
relating to Indebtedness to which it is a party or by which it
may be bound;
4.2.4 Information
the information furnished by the Lessee Parent to the Lessor in
connection with the matters contemplated by, or the negotiation
and preparation of, this Undertaking (the "Information") is, with
regard to matters of fact, in all material respects accurate and
not misleading; and the Lessee Parent has not omitted to provide
the Lessor with any information which, if disclosed, might
reasonably be expected to adversely affect the decision of the
Lessor to enter into this Undertaking.
Further, all assumptions upon which any projections of forecasts
in the Information were made after due and careful consideration
by the Lessee Parent based on the best information reasonably
available to the Lessee Parent and, in the Lessee Parent's view,
are fair and reasonable in the context of the Information.
However:
(i) certain statistical and rating information set out in the
Information has been supplied by third parties and may be based
on estimates, assumptions, subjective judgments or information
("third party information") not independently verified by the
Lessee Parent;
(ii) certain other Information looks ahead and relates to, among other
things, anticipated financial performance, business prospects,
strategies, services, market forces, commitments and
technological developments, and this is necessarily subject to
various risks and uncertainties that could cause the Lessee
Parent's actual results and experience to differ materially from
the anticipated results or other expectations or opinions
expressed.
The Lessee Parent undertakes to notify the Lessor as soon as
reasonably practicable in writing if the Lessee Parent becomes
aware at any time that any circumstance has occurred which,
having not been taken into account by the Lessee Parent or
disclosed, would make the Information materially untrue or
materially inaccurate if repeated at any time until that day by
reference to the facts and circumstances then existing;
4.2.5 No withholding Taxes
no Taxes are imposed by withholding or otherwise on any payment
to be made by the Lessee Parent under this Undertaking or are
imposed on or by virtue of the execution or delivery by the
Lessee Parent of this Undertaking or any document or instrument
to be executed or delivered under this Undertaking; and
4.2.6 No Relevant Event
no Relevant Event has occurred and is continuing.
4.3 Repetition of representations and warranties
On and as of each day from the date of this Undertaking until all
moneys due or owing by the Lessee under the Lease and/or the
other Lease Documents and/or by the Lessee Parent under this
Undertaking have been paid in full the Lessee Parent shall be
deemed to repeat the representations and warranties in clause 4.1
(and so that for this purpose the representation and warranty in
clause 4.1.6 shall refer to the then latest audited financial
statements delivered to the Lessor under clause 5.1) as if made
with reference to the facts and circumstances existing on each
such day.
5 Undertakings
5.1 General
The Lessee Parent undertakes that, from the date of this
Undertaking and so long as any moneys are owing under this
Undertaking, it will:
5.1.1 Notice of default
promptly inform the Lessor of any occurrence of which it becomes
aware which might adversely affect its ability to perform its
obligations under this Undertaking and of any Relevant Event
forthwith upon becoming aware thereof and will from time to time,
if so requested by the Lessor, confirm to the Lessor in writing
that, save as otherwise stated in such confirmation, no Relevant
Event has occurred and is continuing;
5.1.2 Consents and licences
without prejudice to clause 4.1, obtain or cause to be obtained,
maintain in full force and effect and comply in all material
respects with the conditions and restrictions (if any) imposed
in, or in connection with, every consent, authorisation, licence
or approval of governmental or public bodies or authorities or
courts and do, or cause to be done, all other acts and things
which may from time to time be necessary or desirable under
applicable law for the continued due performance of all its
obligations under this Undertaking;
5.1.3 Pari passu
ensure that its obligations under this Undertaking shall at all
times rank at least pari passu with all its other present and
future unsecured and unsubordinated Indebtedness with the
exception of any obligations which are mandatorily preferred by
law and not by contract;
5.1.4 Financial statements
prepare financial statements of the Lessee Parent and
consolidated financial statements of the Lessee Group in
accordance with the Relevant GAAP consistently applied in respect
of each financial year and cause the same to be reported on by
its auditors and prepare unaudited financial statements of the
Lessee Parent and consolidated financial statements of the Lessee
Group in respect of each quarter on the same basis as the annual
statements and deliver sufficient copies of the same to the
Lessor as soon as practicable but not later than 120 days (in the
case of audited financial statements) or 60 days (in the case of
unaudited financial statements) after the end of the financial
period to which they relate;
5.1.5 Delivery of reports
deliver to the Lessor as many copies as the Lessor may reasonably
require of every report, circular, notice or like document issued
by the Lessee Parent to its shareholders or creditors generally,
in each case at the time of issue thereof;
5.1.6 Provision of other information
provide the Lessor with such financial and other information
concerning the Lessee Parent and its Subsidiaries and their
respective affairs as the Lessor may from time to time reasonably
require; and
5.1.7 Verifying of Indenture Obligations
from time to time at the request of the Lessor, to provide a
written statement certifying the outstanding amount of the
Indenture Obligations secured by the First Mortgage.
5.2 Additional Security
The Lessee Parent covenants that it will procure that the Lessee
provides any Additional Security if and when the same may be
required pursuant to clause 25 of the Lease in accordance with
the requirements of the said clause 25 of the Lease.
5.3 Undertakings as manager
The Lessee Parent (in its capacity as manager of the Rig)
undertakes with the Lessor that it will:
5.3.1 not, without the prior written consent of the Lessor, take any
action or institute any proceedings or make or assert any claim
on or in respect of the Rig or its Insurances or any other
property or other assets of the Lessee which the Lessor has
previously advised the Lessee Parent are subject to any
encumbrance or right of set-off in favour of the Lessor by virtue
of any of the Relevant Documents;
5.3.2 discontinue any such action or proceedings or claim which may
have been taken, instituted or made or asserted, promptly upon
notice from the Lessor to do so;
5.3.3 perform its obligations under the Operation and Maintenance
Agreement and any replacement management agreement made between
the Lessee and the Lessee Parent in respect of the Rig and, where
it is obliged under the terms of any such agreement to provide
any information or copy any document to the Indenture Trustee,
provide the relevant information or, as the case may be, copy
such document to the Lessor at the same time; and
5.3.4 provide the Lessor with such other information concerning the Rig
as the Lessor may from time to time reasonably request.
6 Benefit of this Undertaking
6.1 Benefit and burden
This Undertaking shall be binding upon the Lessee Parent and its
successors in title and shall enure for the benefit of the Lessor
and its successors in title and its Assignees and Transferees.
The Lessee Parent expressly acknowledges and accepts the
provisions of clause 30.2 of the Lease and agrees that any person
in favour of whom an assignment or a transfer is made in
accordance with such clause shall be entitled to the benefit of
this Undertaking.
6.2 Changes in constitution or reorganisation of Lessor
For the avoidance of doubt and without prejudice to the
provisions of clause 6.1, this Undertaking shall remain binding
on the Lessee Parent notwithstanding any change in the
constitution of the Lessor or its absorption in, or amalgamation
with, or the acquisition of all or part of its undertaking or
assets by, any other person, or any reconstruction or
reorganisation of any kind, to the intent that this Undertaking
shall remain valid and effective in all respects in favour of any
assignee, transferee or other successor in title of the Lessor in
the same manner as if such assignee, transferee or other
successor in title had been named in this Undertaking as a party
instead of, or in addition to, the Lessor.
6.3 No assignment by Lessee Parent
The Lessee Parent may not assign or transfer any of its rights or
obligations under this Undertaking.
6.4 Disclosure of information
The Lessor may disclose to a prospective assignee or transferee
or to any other person who may propose entering into contractual
relations with the Lessor in relation to the Lease such
information about the Lessee Parent as the Lessor shall consider
appropriate.
7 Notices and other matters
7.1 Notice
Every notice, request, demand or other communication under this
Undertaking shall:
7.1.1 be in writing delivered personally or by first-class prepaid
letter (airmail if available) or facsimile transmission or other
means of telecommunication in permanent written form;
7.1.2 be deemed to have been received, subject as otherwise provided in
this Undertaking in the case of a letter, when delivered
personally or 5 days after it has been put into the post, in the
case of a facsimile transmission or other means of
telecommunications in permanent written form, at the time of
despatch provided that if the date of despatch is not a business
day in the country of the addressee or if the time of despatch is
after the close of business in the country of the addressee it
shall be deemed to have been received at the opening of business
on the next such business day); and
7.1.3 be sent:
(a) to the Lessee Parent at:
R&B Falcon Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(b) to the Lessor at:
Sovereign Corporate Limited
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Corporate Administration Manager
or to such other address or facsimile number as is notified by
the Lessee Parent or the Lessor to the other party to this
Undertaking.
7.2 No implied waivers, remedies cumulative
No failure or delay on the part of the Lessor to exercise any
power, right or remedy under this Undertaking shall operate as a
waiver thereof, nor shall any single or partial exercise by the
Lessor of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power,
right or remedy. The remedies provided in this Undertaking are
cumulative and are not exclusive of any remedies provided by law.
7.3 Other undertakings
The Lessee Parent agrees to be bound by this Undertaking
notwithstanding that any other person intended to execute or to
be bound by any other undertaking or assurance under or pursuant
to the Lease may not do so or may not be effectually bound and
notwithstanding that such other undertaking or assurance may be
determined or be or become invalid or unenforceable against any
other person, whether or not the deficiency is known to the
Lessor.
7.4 Expenses
The Lessee Parent agrees to reimburse the Lessor on demand for
all legal and other costs, charges and expenses on a full and
unqualified indemnity basis which may be incurred by the Lessor
in relation to the enforcement of this Undertaking against the
Lessee Parent.
8 Law and jurisdiction
8.1 Law
This Undertaking is governed by and shall be construed in
accordance with English law.
8.2 Submission to jurisdiction
The Lessee Parent agrees for the benefit of the Lessor that any
legal action or proceedings arising out of or in connection with
this Undertaking against the Lessee Parent or any of its assets
may be brought in the English courts, irrevocably and
unconditionally submits to the jurisdiction of such courts and
irrevocably designates, appoints and empowers the Lessee to
receive for it and on its behalf, service of process issued out
of the English courts in any such legal action or proceedings.
The submission to such jurisdiction shall not (and shall not be
construed so as to) limit the right of the Bank to take
proceedings against the Lessee Parent in the courts of any other
competent jurisdiction, nor shall the taking of proceedings in
any one or more jurisdictions preclude the taking of proceedings
in any other jurisdiction, whether concurrently or not. The
Lessee Parent further agrees that only the courts of England and
not those of any other State shall have jurisdiction to determine
any claim which the Lessee Parent may have against the Lessor
arising out of or in connection with this Undertaking.
IN WITNESS whereof the parties to this Undertaking have caused this
Undertaking to be duly executed as a deed on the date first above
written.
EXECUTED as a DEED )
for and on behalf of )
R&B FALCON CORPORATION )
By ▇▇▇ ▇▇▇▇▇ )
its duly authorised officer ) ...........
in the presence of: ) Officer
................................
Witness
Name:
Address:
Occupation:
EXECUTED as a DEED )
for and on behalf of )
SOVEREIGN CORPORATE LIMITED )
by ▇▇▇▇ ▇▇▇▇▇▇ )
its duly appointed Attorney pursuant to a )
power of attorney dated 19 May 2000) ...........
in the presence of: ) Attorney-in-Fact
................................
Witness
Name:
Address:
Occupation:
