report to asker and bÆrum district court in case no. … report to asker and bÆrum district court...
TRANSCRIPT
Oslo, 13 October 2010
REPORT TO ASKER AND BÆRUM DISTRICT COURT IN CASE NO. 10-
069810KON-AHER/2:
LIQUIDATION OF THULE DRILLING AS
RO SOMMERNES
ADVOKATFIRMA DA
Roald Amundsens gate 6
Postboks 1983 Vika
N-0125 Oslo, Norway
Tel.:
Fax:
(+47) 23 00 34 40
(+47) 23 00 34 50
E-mail: [email protected]
www.rosom.no
Contents
1 ADDRESSES TO WHICH THE REPORT IS SENT ...............................................................4
2 IDENTIFICATION OF WHOM THE CASE CONCERNS...................................................4
2.1 Name .............................................................................................................................................4
2.2 Business address...........................................................................................................................4
2.3 Enterprise number.......................................................................................................................4
2.4 Branch ...........................................................................................................................................5
2.5 The Group ....................................................................................................................................5
2.6 Assets held in other business activities/companies................................................................6
3 THE BANKRUPTCY .......................................................................................................................6
4 ESTATE ADMINISTRATORS ......................................................................................................7
4.1 Executive trustee..........................................................................................................................7
4.2 Estate auditor ...............................................................................................................................7
4.3 Committee of Creditors..............................................................................................................8
5 DETAILS OF THE BANKRUPT PARTY...................................................................................8
5.1 Date of establishment and date of registration .......................................................................8
5.2 Share capital at time of establishment and when the bankruptcy order was made............8
5.3 Company shareholders................................................................................................................9
5.4 The Chairman of the Board of Directors, Members of the Board of Directors and the
Chief Executive Officer (CEO)...........................................................................................................10
5.4.1 The Chairman of the Board of Directors, Board members and CEO at the time the
bankruptcy order was made.............................................................................................................10
5.4.2 Changes in Chairman and board members since establishment of the Company ..10
5.4.3 Chief Executive Officers since establishment of the Company.................................11
5.5 Auditor ........................................................................................................................................11
5.6 Accountant .................................................................................................................................11
5.7 Members of the administration – engagement in other entities/companies ....................11
6 THE BANKRUPT PARTY’S BUSINESS ACTIVITIES .........................................................12
6.1 General ........................................................................................................................................12
6.1.1 Introduction .......................................................................................................................12
6.1.2 The initial period ...............................................................................................................13
6.1.3 Financing ............................................................................................................................13
6.1.4 The rig construction yard .................................................................................................14
6.1.5 Renegotiating of loans – conflict with bondholders ....................................................14
6.1.6 Sale to Royal Oyster General Trading LLC...................................................................15
6.1.7 Status at the time the bankruptcy order was made.......................................................16
6.2 The accounts and accounting practices..................................................................................17
6.3 Activities and number of employees at the time the bankruptcy order was made ..........17
6.4 Date of insolvency.....................................................................................................................18
6.5 The reasons for the bankruptcy...............................................................................................18
6.6 The Auditor/The Financial Supervisory Authority of Norway..........................................18
7 THE WINDING UP ESTATE’S POSITION AND STATUS ...............................................18
7.1 The winding up estate’s assets .................................................................................................18
7.1.1 General................................................................................................................................18
7.1.2 Subsidiaries registered on Cyprus ...................................................................................19
7.1.3 Claims against the subsidiaries.........................................................................................20
7.1.4 Bank deposits .....................................................................................................................20
7.1.5 Outstanding receivables....................................................................................................21
7.1.6 Office equipment...............................................................................................................21
7.1.7 Drilling simulator...............................................................................................................21
7.1.8 Rig equipment in storage and equipment in containers ..............................................22
7.1.9 Claims for compensation .................................................................................................23
7.1.10 Other assets ........................................................................................................................23
7.2 Voidable dispositions ................................................................................................................24
7.3 Activities after bankruptcy proceedings were opened..........................................................24
7.4 Sales .............................................................................................................................................24
7.5 The Company’s liabilities..........................................................................................................24
7.6 In particular on disputes ...........................................................................................................25
7.6.1 The Company – The Crown rep. by Skatt Øst.............................................................26
7.6.2 The Company – Terra Securities ASA, the winding up estate ...................................26
7.6.3 Norsk Tillitsmann ASA – the Company:.......................................................................26
7.6.4 Norsk Tillitsmann ASA – Chekovo Ltd ........................................................................26
7.6.5 Royal Oyster – the Company ..........................................................................................26
7.6.6 The QGM yard in Sharjah – the Company ...................................................................26
7.6.7 RISC Management Limited – the Company .................................................................27
7.6.8 The Company – Law Company Wiersholm and the responsible lawyer in that
company, Law Company Clyde & Co LLP, Zurich Insurance Ireland limited and AIG
Europe 27
7.6.9 Other cases .........................................................................................................................27
7.7 Accrued and incurred costs......................................................................................................27
8 THE POSITION OF THE CREDITORS....................................................................................27
8.1 Potential for cover .....................................................................................................................27
8.2 Examination of claims ..............................................................................................................28
8.3 Further information to creditors .............................................................................................28
9 ACTS AND CIRCUMSTANCES THAT MAY INCUR LIABILITY AND/OR
PUNISHABLE OFFENCES AND/OR QUARANTINE AND MORE......................................28
10 ACTIONS TAKEN IN HANDLING THE BANKRUPTCY TO DATE – PROGRESS
PLAN ...........................................................................................................................................................29
10.1 Administration of the winding up estate to date ..............................................................29
10.1.1 General................................................................................................................................29
10.1.2 Investigations .....................................................................................................................29
10.1.3 Employees ..........................................................................................................................29
10.1.4 Consultancy agreements...................................................................................................29
10.1.5 Diverse ................................................................................................................................30
10.2 Further work in the administration of the winding up estate .........................................30
10.3 Information to the Administrator – guarantee for administrative costs ......................30
It is noted introductorily that the information provided in this report is largely based on
information we have received orally from people associated with the Company, including
representatives for the creditors. Not all the information has been verified to date. We have
reason to believe there is disagreement among the respective parties about parts of the factual
presentation in the report. On this basis, the report is submitted on the proviso that some of its
content may be incomplete or inaccurate. The executive trustee will inform the creditors in a
follow-up report of any errors identified. Information provided by the bankruptcy estate in this
report, therefore, may not be used as confirmation, acceptance or evidence from the bankruptcy
estate’s side.
1 ADDRESSES TO WHICH THE REPORT IS SENT
This report is sent to Asker and Bærum District Court, with copies to
- the creditors who submit claims
- the Company’s administration
The report will also be posted on the Register of Bankruptcies’ information page for estates in
bankruptcy.
A copy has currently not been sent to the Asker and Bærum Police District, cf. section 9 below.
2 IDENTIFICATION OF WHOM THE CASE CONCERNS
2.1 Name
The debtor is Thule Drilling AS. The debtor is hereafter referred to as “the Company” or “Thule
Drilling”. It is mentioned as a matter of good form that Thule Drilling AS was registered as a
public limited company, Thule Drilling ASA, from 2 May 2005 to 22 June 2009.
2.2 Business address
The Company’s registered business address is Vakåsvn. 9, 1395 Hvalstad.
2.3 Enterprise number
The Company’s enterprise number is 987 859 377.
2.4 Branch
According to the Company’s Articles of Association, the purpose of its establishment was to deal
in investments and associated activities. On 11 January 2007, the object of the Company was
changed to contracting, owning, operating and chartering out rigs and all matters relating to this.
2.5 The Group
Thule Drilling has had six subsidiaries, whereof five are registered in Cyprus and one in the
British Virgin Isles.
In autumn 2008 the organisational chart was as follows:
It is important to note that on 15 and 16 December 2008 the Company entered into agreement
concerning the sale of its subsidiaries to Royal Oyster General Trading LLC (hereafter called
“Royal Oyster”) as purchaser, with the exception of Jawi Holdings Ltd which the executive
trustee has been informed is a shell company. The shares are mortgaged in favour of Norsk
Tillitsmann ASA as the trustee of a bond loan, cf. item 6.1.3. In reality, the agreements have not
been implemented. In this respect, reference is made to items 6.1.6 and 7.1.2 for further
information.
Thule Drilling AS
Norway
Quality General
Maintenance Management Limited
BVI
Chekovo Limited Cyprus
Voldar Investments Limited
Cyprus
Favignat Holdings Limited
Cyprus
Keetab Limited
Cyprus
Jawi Holdings Limited
Cyprus
QGM Group LLC Yard Sharjah
49% ownership
Thule Power Jack-up rig project Sharjah
Thule Energy Jack-up rig project Sharjah
Thule Force Jack-up rig project Sharjah
Thule Phoenix Bare deck Semi
Submersible rig Alabama
Pursuant to Norwegian law, the bankruptcy estate is not bound by the sales agreements unless
the purchaser has obtained legal protection for the acquisitions. It is currently unclear whether
such legal protection is established, but it is assumed that the issue is of limited interest for the
rig-owning companies insomuch as the shares are mortgaged. Nor can the bankruptcy estate
dismiss the question of whether ownership of the shares has to be decided pursuant to legislation
in the companies’ country of registration.
It should also be mentioned that a bankruptcy order was made in August this year for Keetab
Limited. We are trying to ascertain the circumstances surrounding this, and whether the asset has
any value as a result of this.
2.6 Assets held in other business activities/companies
To the best of our knowledge, the Company has no assets in any other businesses/companies,
apart from the above-mentioned subsidiaries.
3 THE BANKRUPTCY
Legal grounds: Asker and Bærum District Court’s ruling of 16
September 2010, 09.45.
Petitioning creditor: Bankruptcy petition from Norsk Tillitsmann ASA.
Debt basis: Loan default amounting to USD 294 220 216.87 incl.
interest and costs as per the date of the bankruptcy
petition, 29 April 2010.
Deadline pursuant to the Norwegian
Creditors Recovery Act Section 1-2:
30 April 2010.
Deadline for filing a claim:: 12 October 2010. (The deadline is not preclusive.
Claims after this date will also be registered).
First creditors’ meeting: Thursday 14 October 2010 at 08.00 in Court 6 at the
Asker and Bærum District Court, Malmskrivervn. 2,
1302 Sandvika.
The background for the deadline being as far back as 30 April this year is the fact that the
bankruptcy petition submitted by Norsk Tillitsmann ASA was received by the Asker and Bærum
District Court on this date. The petition was contested by Thule Drilling.
Asker and Bærum District Court pronounced on 25 May 2010 that the bankruptcy petition was
disallowed because Norsk Tillitsmann ASA was not deemed to be creditor pursuant to Section 60
of the Norwegian Bankruptcy Act, and thus was not competent the declare the Company
bankrupt.
Norsk Tillitsmann ASA appealed against the decision to the Borgarting Court of Appeal. In a
ruling dated 14 July 2010, the Court of Appeal drew the opposite conclusion, namely that Norsk
Tillitsmann ASA was regarded as a creditor pursuant to the stated provision, and therefore was
competent to declare the Company bankrupt. The District Court’s ruling was thus overturned.
Thule Drilling appealed against the Court of Appeal’s finding to the Supreme Court.
Pending a ruling by the Supreme Court, Norsk Tillitsmann ASA requested the case documents to
be returned to the Asker and Bærum District Court for the hearing of the bankruptcy petition to
continue, cf. Section 29-24 of the Disputes Act. Norsk Tillitsmann ASA presupposed that the
hearing could run parallel with the Supreme Court hearing. The Company opposed this, and
requested a postponement of the bankruptcy hearing until the Supreme Court had made a ruling
on the appeal.
The question of postponement was dealt with by the Asker and Bærum District Court in a
hearing on 6 September 2010. The District Court ruled that the processing of the bankruptcy
petition should be postponed until the Supreme Court’s ruling on the Court of Appeal’s decision
had been pronounced.
On 7 September 2010, the Supreme Court ruled in favour of the Court of Appeal’s decision that
Norsk Tillitsmann ASA was to be regarded as a dividend-entitled creditor pursuant to Section 60
of the Bankruptcy Act, and thus had competence to declare the Company bankrupt. The
Company’s appeal was dismissed and a bankruptcy order was made on 16 September 2010.
4 ESTATE ADMINISTRATORS
4.1 Executive trustee
Appointed as executive trustee is:
Advocate Ståle Sommernes
Roald Amundsens gate 6
Postboks 1983 Vika
N-0125 Oslo
Tel.: (+47) 23 00 34 40
Fax: (+47) 23 00 34 50
E-mail: [email protected]
4.2 Estate auditor
It is proposed to appoint certified public accountant Per Ødegaard as estate auditor. Ødegaard
has extensive experience through many years of auditing bankrupt estates. He also has experience
with offshore and shipbuilding. It should be mentioned that Per Ødegaard was hired by the
executive trustee a few days after the bankruptcy order was made, and thus is already well-versed
with the bankruptcy estate.
Ødegaard has said he is willing and able to take on the job as estate auditor.
4.3 Committee of Creditors
In connection with the fact that a bankruptcy order was made on 16 September 2010, Ragnar
Sjoner, managing director of Norsk Tillitsmann ASA, was appointed to the creditor’s committee.
There are currently no proposals for further members of the creditors’ committee.
5 DETAILS OF THE BANKRUPT PARTY
5.1 Date of establishment and date of registration
Thule Drilling was established on 7 February 2005. The Company was first entered in the
Register of Business Enterprises on 10 February 2005.
5.2 Share capital at time of establishment and when the bankruptcy order was made
At the time of establishment the Company’s share capital was NOK 100 000. The share capital
has subsequently been increase several times. The shares have been subscribed at a premium.
Below is a summary of changes in share capital from the date of establishment of the Company
to the date the bankruptcy order was made. The date stated is the date of registration. All figures
are in NOK.
Date Change in share capital Share capital
Nominal
value
Subscription
rate
Premium on
shares
7 Feb. 2005 100 000 0.01 0.01
2 May 2005 2 640 000 2 740 000 0.20 19.00 248 160 000
22 Sept. 2005 1 500 000 4 240 000 0.20 26.50 197 250 000
30 Jan. 2006 1 800 000 6 040 000 0.20 33.75 301 950 000
13 Feb. 2006 1 350 000 7 390 000 0.20 33.75 226 462 500
16 May 2006 138 400 7 528 400 0.20 23.09 15 839 880
15 June 2007 3 369 066 10 897 466 0.20 13.06 216 630 945
17 July 2007 4 000 10 901 466 0.20 13.06 257 200
28 Dec. 2007 1 680 000 12 581 466 0.20 8.00 65 520 000
31 Jan. 2008 560 000 13 141 466 0.20 8.00 21 840 000
9 March 2009 14 000 000 27 141 466 0.20 0.40 14 000 000
28 May 2009 -24 155 904.74 2 985 561.26 0.022
The summary above shows that from the date of establishment up to and including the last
capital increase, the Company was supplied a total (as share capital and premium) of NOK 1
333 563 591.
It should be mentioned that the Company’s premium fund per 22 December 2008 was registered
reduced by NOK 900 000 000. According to the minutes to the General Meeting of 26 June
2008, this amount was transferred to other equity.
The capital reduction of 28 May 2009 was implemented by changing the nominal value of the
shares to NOK 0.022. The reduction amount was appropriated to a fund for use in accordance
with the General Meeting’s decision, cf. the Limited Liabilities Companies Act § 12-1 first par.
(3). At the same time, it was resolved to change the Company from public limited liability
company to a limited liability company.
5.3 Company shareholders
Thule Drilling has been quoted on the OTC list. When the bankruptcy order was made, the
largest shareholder was Norinvest Ltd. (enterprise no. 992 432 225) with 44.99% of the shares. It
is mentioned in this connection that bankruptcy proceeding were initiated against Norinvest Ltd.
on 30 August 2010 with Thomas Brandi, lawyer with the Selmer law firm, as executive trustee.
Norinvest Ltd. is owned by Brutel AS (enterprise no. 976 249 615). As we understand it, Anders-
Ivar Olsen, member of the board of directors and managing director of Thule Drilling, is the
principal shareholder in Brutel AS.
Thule Drilling’s ten largest shareholders are:
- Norinvest Ltd 44.99%
- Deutsche Bank AG 4.05%
- Regni AS 3.30%
- Loligo AS 2.85%
- Jag Invest AS 2.62%
- AG Invest AS 2.20%
- Sebastian Holding Inc 2.16%
- Johan Einar Holst 1.96%
- Østlandske Pensjonistboliger AS 1.87%
- Six-Seven AS 1.81%
5.4 The Chairman of the Board of Directors, Members of the Board of Directors and
the Chief Executive Officer (CEO)
5.4.1 The Chairman of the Board of Directors, Board members and CEO at the time the
bankruptcy order was made
When the bankruptcy order was made, the Company’s board comprised Aage Thoen (b. 6 May
1955, as Chairman, and Anders-Ivar Olsen (b. 2 October 1962) and Einar Johan Holst (b. 12
February 1957) as board members.
When the bankruptcy order was made, Anders-Ivar Olsen was registered as the Company’s
managing director.
5.4.2 Changes in Chairman and board members since establishment of the Company
On establishment, the Company’s administration comprised Tore Enger as managing director
and board member. The Chairman was Henrik A. Christensen, and Sigurd Lange was deputy
board member.
On 20 April 2005, the following board changes were registered: Tore Enger took over as
Chairman, and Henrik August Christensen and Johan Fredrik Friis as board members.
On 22 September 2005, the following board changes were registered: Henrik August Christensen
was elected as deputy chairman and Brita Eilertsen came in as board member. Tore Enger
continued as Chairman and Johan Fredrik Friis as board member.
On 19 November 2005, the following board changes were registered: Henrik August Christensen
took over as Chairman, with Tore Enger as deputy chairman. Board members were now Brita
Eilertsen, Hans Eirik Olav and Frederik Magnus Steebuch.
On 22 April 2006, Tore Enger resigned from the board.
On 4 May 2006, Anders-Ivar Olsen was elected to the board. He was registered in the Register of
Business Enterprises as a board member on 28 October 2006. At this point, the board comprised
Christensen as Chairman, with Olsen, Eilertsen, Olav and Steenbuch as board members.
On 22 March 2007, Hans Eirik Olav was registered as Chairman (he was elected on 6 February).
Christensen became a board member.
On 25 June 2007, the following board changes were registered: Eilertsen and Christensen
resigned.
On 12 January 2008, Steenbuch was registered as relinquishing his position on the board.
On 19 February 2008, Kristin Mortensen was registered as a new board member. She is
registered as relinquishing her position on 4 April 2009. Mortensen was probably a member of
the board from 12 January 2008 to 4 April 2009. She was also registered as relinquishing her
position on 7 September 2009.
On 7 September 2009, Olav was registered as relinquishing his position as Chairman. He resigned
on 20 August 2009.
From 20 August 2009 to 3 September 2009, Anders-Ivar Olsen was Chairman.
Sven Aage Thoen was elected as Chairman on 3 September 2009.
On 24 November 2009, the following board changes were registered: Sven Aage Thoen is
registered as Chairman, and Einar Johan Holst as board member. Klaus Austgulen was deputy
board member. Olsen continued as a member of the board.
On 16 June 2010, Klaus Austgulen is registered as relinquishing his position.
5.4.3 Chief Executive Officers since establishment of the Company
On establishment, Tore Enger held the position of CEO.
On 2 May 2005, Kai Solberg Hansen is registered as new CEO.
On 25 April 2007, the CEO is registered as being Peter Andreas Klaveness Gjessingen. He is
registered as relinquishing his position on 15 September 2009.
On 28 September 2009, Anders-Ivar Olsen is registered as new CEO. He was appointed at a
board meeting of 3 September 2009.
5.5 Auditor
The Company’s auditor has been Ernst & Young AS, enterprise no. 976 389 387, Christian
Frederiks plass 6, 0154 Oslo. The person in charge was certified public accountant Asbjørn
Rødal. Ernst & Young AS has been registered as the Company’s auditor since its establishment.
5.6 Accountant
The Company’s accounts were kept by the Company’s own employees.
5.7 Members of the administration – engagement in other entities/companies
The Chairman of the Board of Directors at the time the bankruptcy order was made, Aage
Thoen, is registered has also holding the following directorships:
• Silver Green TC AS, enterprise no. 995 739 690, board member
• Silver Green AS, enterprise no. 995 739 658, board member
• Bank2 ASA, enterprise no. 988 257 133, deputy chairman
• Silmar AS, enterprise no. 990 863 016, board member
• Ocean Crew Marine Services AS, enterprise no. 991 428 550, chairman and CEO director
• Aage Thoen Ltd AS, enterprise no. 976 758 722, chairman
• Green Reefers AS, enterprise no. 922 493 626, deputy chairman
Board member and managing director Anders-Ivar Olsen is registered as also holding the
following positions:
• Brutel AS, enterprise no. 976 249 615, chairman and CEO
• Ecoonline, enterprise no. 982 263 700, chairman
• Norinvest Ltd. enterprise no. 992 432 225, managing director (under bankruptcy order)
• Jameson Capital AS, enterprise no. 888 068 082, deputy board member
• Heimkvil AS, enterprise no. 960 716 280, deputy board member
• Impala Invest AS, enterprise no. 988 223 204, deputy board member
• Norinvest Holding AS, enterprise no. 994 286 404, chairman and CEO
• Nordic Commodity AS, enterprise no. 979 523 459, deputy board member
• Knightfield AS, enterprise no. 977 037 727, board member
Board member Einar Johan Holst is also registered as also holding the following positions:
• Auto-Boks-Service AS, enterprise no. 910 358 243, CEO and board member
• Holst AS, enterprise no. 952 298 879, CEO and board member
• Fagerholt Familebarnehage AS, enterprise no. 987 607 37, chairman and CEO
6 THE BANKRUPT PARTY’S BUSINESS ACTIVITIES
6.1 General
6.1.1 Introduction
The following is a brief summary of the Company’s development.
By way of introduction it should be noted that Thule Drilling’s business activity has been to
manage the construction of drilling rigs owned by subsidiaries. Thule Drilling shall itself have
entered into contracts in connection with the construction, and has also been responsible for the
purchase of equipment and services. When the bankruptcy order was made, the subsidiaries
owned one jack-up rig, which was almost finished (Thule Power), and two rigs (Thule Force and
Thule Energy) under construction, all located in the United Arab Emirates, more specifically in
Sharjah.
In addition, one of the subsidiaries owns a salvaged rig located in the USA.
6.1.2 The initial period
In 2005, Thule Drilling acquired a salvaged drilling rig (“Arabdrill 19”) and in this connection
signed a fixed price contract for repairing/modifying the rig at a newly established yard in the
United Arab Emirates (UAE), QGM Group LLC (“QGM LLC/the QGM yard”). The rig, which
was to be a jack-up rig, was later named “Thule Power”.
Two further fixed price contracts were subsequently signed by Thule Drilling and the UAE
shipyard for the building of two new jack-up rigs, 2Thule Force” and “Thule Energy”.
Noble Denton Middle East Ltd. was hired as “project manager” for following up the repair
work/construction of the three rigs.
Thule Drilling later purchased a fourth rig, “Thule Phoenix”. This has been located off the coast
of Alabama, USA since its acquisition in 2005. This involves a rig that has been prohibited from
operating as a drilling rig, but could act as an accommodation rig or service rig.
In addition to that mentioned above, the Company in autumn 2005 acquired a fifth rig called
“Thule Challenge”.
The Company established separate subsidiaries in Cyprus in connection with the purchases
described above. The subsidiaries were registered as owners of the rigs/building contracts. Thus,
Thule Power was owned by Chekovo Limited, Thule Energy by Voldar Investments Limited,
Thule Force by Favignat Holdings Limited, Thule Phoenix by Keetab Limited and Thule
Challenge by Zelie Industrial Limited.
On 13 February 2006, the shares in Zelie Industrial Limited, and there through Thule Challenge,
were sold to Atlantic Marine Offshore Services. The sale resulted in a relatively substantial profit
for Thule Drilling.
6.1.3 Financing
In order to finance the rigs, Thule Drilling (in addition to the funds raised by the capital increase,
cf. section 5.2 above) took up three bond loans with Norsk Tillitsmann ASA as trustee for the
bond owners. Loan agreement 1 nominally for USD 130 000 000 is dated 27 September 2006,
loan agreement 2 nominally for USD 40 000 000 is dated 26 March 2007, and loan agreement 3
nominally for USD 9 000 000 is dated 31 January 2007. The loans were secured by mortgage.
Efforts are currently under way to acquire a full overview of and documentation for the
established mortgages. For the time being, we can only say that the bond owners shall have been
given security in shares in both the subsidiaries and the rigs/building contracts themselves. There
is also a registered mortgage in the plant and machinery owned by Thule Drilling. In addition,
security was also given in the form of the claims that Thule Drilling has against the subsidiaries.
6.1.4 The rig construction yard
QGM General Trading LLC’s yard in Sharjah in the UAE, QGM Group LLC (“QGM LLC”)
found itself with liquidity problems, and following negotiations, Thule Drilling opted to grant the
yard a loan of up to USD 22 million against security in all the shares in Quality General
Maintenance Management Limited (“QGM BVI”). This company owned 49% of the shares in
QGM LLC. In accordance with the contract with the majority shareholder, the BVI company
was also vested with the power to use the rest of the shares. This 51% was owned by a so-called
“sponsor” pursuant to the statutory rules that apply to this in the UAE. The shares were
mortgaged to the benefit of the Company and were sub mortgaged to the security for the bond
loans.
The loan that Thule Drilling gave to the yard was defaulted, after which Thule Drilling enforced
the mortgage in the shares in the yard’s parent company (the BVI company) and was entered as
sole shareholder in the shareholders’ register. Thereafter, the shares in the company that owned
the yard, QGM LLC, in violation of the loan agreement, were sold by QGM BVI to a new
company in the UAE.
Thule Drilling claimed that the share transfer was illegal and started legal proceedings. In a ruling
dated 23 April 2008, affirmed by the Court of Appeal in Dubai on 7 October 2008, it was
established that QGM BVI had right of ownership to the shares in the company that owned the
yard, QGM LLC.
After Thule Drilling had claimed that the transfer of the shares in QGM LLC was illegal, the yard
brought a claim of USD 100 million against Thule Drilling and at the same time threatened to
close down the yard if the amount was not paid. Thule Drilling contested the claim. Nevertheless,
the yard was closed on 1 July 2007, which meant that Thule Drilling no longer had access to the
three rigs under repair/construction there. At this juncture, considerable progress had been made
in the work on Thule Power, and work had also started on construction of the other two rigs.
When the yard was closed, it was estimated that Thule Power was one month away from
completion.
Before the yard was closed, a long-term charter-party had been signed for Thule Power with
KCA-Deutag/Saudi Aramco. However, this was subsequently cancelled. Thus, in December
2007, an agreement was signed for sale of the shares in Chekovo Ltd (owner of Thule Power) to
Advanced Business for Modern Technologies Co. for USD 185 million, with the first payment
due in March 2008. The sales agreement was never implemented. The reason for this is that the
Company had been shut out from the yard, which made it impossible to complete Thule Power.
6.1.5 Renegotiating of loans – conflict with bondholders
As a result of the situation it found itself in, Thule Drilling failed to service its bond loan in
accordance with the terms agreed. The Company initially defaulted on the loan in March 2008.
The Company entered into negotiations with the creditors. An agreement to restructure the loan
agreements was reached in summer 2008, though on the proviso that Thule Drilling implemented
a share issue in case the Company failed to pay interest on the bond loans when payment fell due.
A secondary demand guarantee was furnished, pro rata, to Norsk Tillitsmann ASA direct. The
guarantors included Norinvest Ltd. and other major shareholders. The guarantees were originally
limited to a maximum amount of USD 43 million. The date for redeeming the loans was
extended to 15 November 2008. The circumstances surrounding the renegotiation of the loans
are something the executive trustee will look closer at in its administration of the estate, including
the size of the guarantees to date.
In connection with the dispute with QGM LLC, Thule Power was moved to Maritime Industrial
Services Co Ltd. (MIS) for completion there. The MIS yard is located relatively close to the yard
owned by QGM LLC.
In November 2008, the Company again defaulted on the bond loans, and this prompted Norsk
Tillitsmann ASA to take arrest in Thule Power and oppose the rig being moved back to the
QGM yard. Thule Drilling would not accept this and on 25 May 2009 a court in Sharjah ruled in
the Company’s favour for moving the rig.
The conflict that had arisen between the bond owners, represented by Norsk Tillitsmann ASA,
and Thule Drilling, gradually resulted in Norsk Tillitsmann ASA using its right through the loan
agreements to take control over Thule Drilling’s subsidiaries. Thus, on 24 June 2009, Norsk
Tillitsmann ASA appointed new members to the boards in the subsidiaries.
6.1.6 Sale to Royal Oyster General Trading LLC
All this time, Thule Drilling’s management was trying to find a solution. This resulted in the
Company on 27 October 2008 signing a Memorandum of Understanding with Royal Oyster for
the sale of Thule Drilling’s two drilling rigs under construction at the QGM yard (Thule Force
and Thule Energy), as well as Thule Drilling’s eventual ownership in the QGM LLC yard. A sum
of USD 300 million was agreed, which was to be paid in instalments over 15 months. In addition,
it was presupposed that Thule Power should go on a bareboat charter-party to Royal Oyster on
signing of the contract. Transfer of title to that which the contract covered was first to have taken
place once the entire purchase sum had been paid.
The MoU was followed up by a more comprehensive agreement on 15 and 16 December 2008.
In these dates, Thule Drilling and Royal Oyster signed contracts for the sale of all Thule
Drilling’s shares in:
• Keetab Limited (owner of Thule Phoenix) for USD 5 million;
• Chekovo Limited (owner of Thule Power) for USD 140 million;
• Favignat Holdings Limited (owner of Thule Force) for USD 115 million;
• Voldar Investments Limited (owner of Thule Energy) for USD 120 million; and
• Thule Drilling’s shares in QGM-BVI for USD 40 million.
Thus, in accordance with the agreements, Royal Oyster was to pay Thule Drilling a total of USD
420 million less the debt that QGM LLC had. The payment period was set at 2 years, from
March 2009 to February 2011. The agreements were conditional to the shares being handed over
free of encumbrance.
The sales agreements were signed on the proviso of approval by the board in Thule Drilling. This
proviso was established inter alia because the agreement presupposed that the shares were to be
free of encumbrance, something which could not be possible without agreement with the
creditors represented by Norsk Tillitsmann ASA. However, the creditors did not accept the sales
agreements for several reasons. Nor would the creditors give any guarantee that their mortgage
would be cancelled with the sale to Royal Oyster. The board dropped its proviso early in January
2009. According to the management, the reason for this was inter alia that representatives for two
major bond owners pushed for the sale to go through.
When it was clear that essential agreements had not been signed with the creditors, Royal Oyster
gave notification that the first instalment of the purchase price would be paid once Thule Drilling
could guarantee that it was in a position to satisfy the terms of the agreements and deliver the
shares free from encumbrance. No agreement was reached with the creditors (represented by
Norsk Tillitsmann ASA) concerning this.
Based on Thule Drilling’s board minutes, it appears as though the Company and Royal Oyster
continued their efforts to implement the sales agreements until as recently as December 2009.
During the winter and spring of 2010, the Company, the bond owners and Royal Oyster held
negotiations for a solution in which the Company’s assets were to be distributed, while the bond
debt was to be cancelled. There is, to some degree, disagreement between the parties about what
happened and the motives for the parties’ respective standpoints. This is something the executive
trustee will look more closely at in its further administration of the bankruptcy estate. We will
therefore not go any further with this in this report.
6.1.7 Status at the time the bankruptcy order was made
The situation at the time the bankruptcy order was made was that the two rigs under
construction (Thule Force and Thule Energy) and the rig that was almost complete (Thule
Power) were still at the yard in Sharjah. Thule Power was berthed at a quay, while the hulls under
construction to Thule Force and Thule Energy were still with the yard’s perimeter. The rig in the
USA owned by Keetab Ltd was laid up without any work being done on it. A number of lawsuits
were initiated, cf. section 7.6 below. The parties involved have given partially conflicting
information concerning key elements in the case, including about the ownership of the shares in
QGM LLC, which owns the yard in the UAE (Sharjah).
6.2 The accounts and accounting practices
The following key figures given in NOK 1000s are from the Company’s financial statements for
2008, 2009 and 2010. The figures for 2010 are per the date the bankruptcy order was made and
have not been audited:
Profit and loss 2008 2008 (K) 2009 2009 (K) 2010
Operating income NOK 83 534 21 697 33 506 0 7 534
Operating expenses NOK 103 089 214 774 9 579 1 865 968 9 006
Operating result NOK -19 555 -193 077 23 927 -1 865 968 -1 472
Result for the Year NOK -473 104 -474 315 -2 151 020 -2 151 020 -189 565
Balance sheet 2008 2008 (K) 2009 2009 (K) 2010
Total current assets NOK 7 062 6 698 2 337 2 291 -4 504
Total fixed assets NOK 2 306 189 2 432 894 57 583 188 292 46 766
Total current liabilities NOK 1 659 088 1 785 428 1 650 336 1 780 999 1 863 634
Total non-current liabilities NOK 0 0 0 0 0
Total equity NOK 654 164 654 164 -1 590 416 -1 590 416 -1 759 191
The financial statements for the years up to and including 2009 are audited and submitted to the
Register of Company Accounts.
Tax returns for the same years have also been submitted.
At the time the bankruptcy order was made, the Company was also up to date with the
submission of statements regarding VAT, employee’s tax deductions and employer’s
contributions. Statements have also been submitted during the period from when the bankruptcy
order was made to the date bankruptcy proceedings were opened.
6.3 Activities and number of employees at the time the bankruptcy order was made
At the time the bankruptcy order was made Thule Drilling had five employees in the
administration, including the Company’s managing director. Of these, three were permanently
employed, while two were seconded to the Company through consultancy agreements.
Meetings were held with the employees and one of the consultants.
The employees have been given notice, and the estate has notified no-entry in the consultancy
agreements.
At the time the bankruptcy order was made the Company was up to date with salary payments,
though such that the employees were owed non-due wages for September and holiday pay earned
in 2010.
6.4 Date of insolvency
Pursuant to Section 61 of the Norwegian Bankruptcy Act grounds for insolvency exist when “the
debtor is unable to pay his debts when they fall due, unless insolvency must be assumed to be temporary in nature.
Nevertheless, insolvency does not exist when the debtor’s assets and earnings together are assumed to be able to fully
cover the debtor’s obligations, even though the fulfilment of the obligations will be delayed by the fact that his debts
have to be covered by the sale of assets.”
At present, we do not wish to link comments to when the Company became insolvent. This will
be assessed more closely during the ongoing administration of the estate and commented on in a
report later.
6.5 The reasons for the bankruptcy
As mentioned in section 3 above, the direct cause of bankruptcy proceedings being initiated
against Thule Drilling’s estate is that Norsk Tillitsmann ASA present a creditor’s petition to the
Asker and Bærum District Court for lack of payment of an overdue loan debt totalling USD
294 220 216.87 incl. interest and costs up to the date for submitting the bankruptcy petition on
29 April 2010.
As far as the reasons behind the bankruptcy are concerned, there is considerable disagreement
between the parties involved. Consequently, we will try to chart the circumstances surrounding
this. We will provide more information about this in a later report.
6.6 The Auditor/The Financial Supervisory Authority of Norway
At present, we have not assessed where there is anything that might cause a response from the
Financial Supervisory Authority of Norway to the Company’s auditor. Per date, therefore, we
have no reason to submit this report to the Financial Supervisory Authority of Norway (cf.
Section 122a of the Norwegian Bankruptcy Act).
7 THE WINDING UP ESTATE’S POSITION AND STATUS
7.1 The winding up estate’s assets
7.1.1 General
At this point we again mention as already noted above that the situation was unclear at the time
bankruptcy proceedings opened. We have found that there is some uncertainty regarding which
assets are actually the property of the winding up estate, including not least whether Thule
Drilling or the subsidiaries own various pieces of equipment. In that this uncertain situation
exists we have elected to provide a rough overview of assets in this initial report. The overview is
based on information obtained thus far, including from the Company’s management. Work is
continuing to better clarify the details on this point.
7.1.2 Subsidiaries registered on Cyprus
• Chekovo Ltd. According to information received, this company owns the rig Thule Power, which, as mentioned above in this report is undergoing conversion at the QGM yard in the United Arab Emirates. The rig is reportedly more than 90 % completed. The rig is mortgaged to the advantage of Norsk Tillitsmann ASA, as surety for debenture loans totalling more than MUSD 300 as of today’s date.
• Voldar Ltd. This company is allegedly the owner of Thule Energy, which is the name of the rig on which work has commenced at the QGM yard. Work has not progressed very far, and we are given to understand that at this stage it is somewhat misleading to describe Thule Energy as a rig. Norsk Tillitsmann ASA allegedly has surety in the rig.
• Favignat Ltd. This company is allegedly the owner of Thule Force, which is the name of the other rig that is under construction at the QGM yard. We have been informed that it is also the case with this rig that work has not progressed very far. Norsk Tillitsmann ASA allegedly has surety in the rig.
• Quality General Maintenance Management Company Limited (BVI) (”QGM BVI”). Thule Drilling also owns the shares in this company. This company previously owned 49 % of the shares in QGM LLC, which was registered in Sharjah and was owner of the yard where Thule Power, Thule Energy and Thule Force were being converted/constructed. According to Thule Drilling’s annual accounts for 2009, note 19, the shares in QGM BVI were sold to Oyster Holding BVI in the spring of 2009. The Administrator will investigate this further
• Keetab Ltd. This company is registered as the owner of a rig called Thule Phoenix. The rig is in the USA and is to be in such poor condition at this point in time that its value as a sales object is at best modest. This rig is also allegedly mortgaged to the advantage of Norsk Tillitsmann ASA. We have been informed that Keetab Ltd. has been taken under bankruptcy proceedings in the USA.
We note here that Norsk Tillitsmann ASA has said that this enterprise holds surety in the
shares of the above-mentioned subsidiaries. Further, Royal Oyster and possibly several other
local suppliers are said to have some form of surety in the rigs that are located in Sharjah,
UAE.
7.1.3 Claims against the subsidiaries
Thule Drilling has financed the investments made in connection with the above-mentioned
rigs, Thule Power, Thule Energy, Thule Force and Thule Phoenix. As a result of this Thule
Drilling has considerable claims against its subsidiaries. According to the accounts, claims as
of today are as follows:
o Claim against Chekovo Ltd. NOK 27 591 131,-
o Claim against Voldar Investments Ltd. NOK 12 912 570,-
o Claim against Favignat Holding Ltd. NOK 21 184 463,-
o Claim against Keetab Ltd. NOK 9 583 397,-
o Claim against Jawi Holdings Ltd NOK 166 185,-
Sum claims against Subsidiaries: NOK 71 437 749,-
We mention that the amounts shown above are the result after major loans to the subsidiaries
have been converted into shares. Shares and claims have, according to the accounts for 2009,
been written down to a total amount of USD 417 mill.
Norsk Tillitsmann ASA has surety in Thule Drilling’s claims against the above-mention
subsidiaries with the exception of Jawi Holding Ltd.
In addition the Company has loaned out MNOK 100.1 to QGM LLC. It can be seen in the
agreement between the Company and Royal Oyster on the transfer of shares in QGM BVI
on 16th December 2008 that the claim for this amount against QGM LLC has been
transferred to Royal Oyster. The same lack of clarity that is attached to the sale of BVI shares
also applies to the transfer of the receivable against QGM LLC. Thule Drilling has previously
lodged a claim of MUSD 300 against QGM LLC. QGM LLC has for its part now lodged a
claim of the amount against the winding up estate, see sub-section 7.5 above.
7.1.4 Bank deposits
o In DnB NOR Bank ASA � Operating account in NOK Balance NOK 11 788,15 � Operating account in USD Balance USD – 49,23
o In Bank 2
� Investment account Balance NOK 5 309,53 � Tax deductions account Balance NOK 138 870,00 � Investment account Balance NOK 0,00
o In SEB
� Dollar account Balance USD 17 317,20
� Dollar account Balance USD 0,00 � Account Balance NOK -280,13 � Tax deductions account Balance NOK 324,33
Norsk Tillitsmann ASA has agreed surety in the Company’s to dollar accounts in SEB.
7.1.5 Outstanding receivables
Work is ongoing to obtain an overview of whether Thule Drilling had outstanding receivables
when bankruptcy proceedings were opened.
A few days after bankruptcy proceedings were opened a sum USD 876 812.-. Was deposited
in Thule Drilling’s bank account. The background for this was the sale of equipment that had
been purchased several years previously, and that a short time prior to the opening of
bankruptcy proceedings had been sold back to the supplier. It is not yet clear whether this
amount is a free asset in the winding up estate or whether it is encompassed by the surety
held by Norsk Tillitsmann ASA. In the meantime the parties have agreed that for the time
being a sum of up to MNOK 1.5 shall be placed at the disposal of the winding up estate to
cover necessary administrative costs. If the said amount should prove to be part of the surety
held by Norsk Tillitsmann ASA, the amount will be reversed to the degree that there is cover
for this after the ordinary preferential claims have been settled. The amount shall also be
considered to be a part-payment with regard to any statutory charge claims the winding up
estate may have.
According to the accounts the Company has a receivable of NOK 620 835.- against paid-in
value added tax. It is probable that outstanding, unpaid employer’s contributions will be set
off against this. According to the accounts the Company owes NOK 213 517.- in employer’s
contributions.
7.1.6 Office equipment
At the time bankruptcy proceedings were opened Thule Drilling rented/leased some office
facilities in a property in Asker, Vakåsvn. 9, 1395 Hvalstad. The Company had standard
office equipment in the facilities with little value as sales objects. Norsk Tillitsmann ASA
has registered surety in Thule Drillings operating equipment, in which the office
equipment is mortgaged at a far greater worth than its actual worth. This thus represents no
worth to the winding up estate.
7.1.7 Drilling simulator
A drilling simulator for training drilling personnel was a joint purchase between Thule
Drilling (2/3) and the company KCA Deutag (1/3). The simulator is in all likelihood with
KCA Deutag in Jebel Ali in Dubai. The simulator was originally worth USD 501 852.-.
The Company invoiced 1/3 of the cost to KCA Deutag, USD 167 284,- , which resulted in
a net purchase price for Thule Drilling of USD 334 568.-.
On 2nd September 2010 Thule Drilling signed and forwarded an agreement on the
settlement of the Company’s outstanding with KCA Deutag of USD 500 000.- against the
drilling simulator. The Company did not receive a counter-signed agreement in return in
that KCA Deutag requested confirmation that the Company would also relinquish its
rights to other equipment that the Company had previously claimed was at KCA Deutag’s
facility. This equipment was probably worth in the region of USD 200 000,-. KCA Deutag
claims that the said equipment is with ODL, a department of Noble Denton. Thule
Drilling no longer has any control over either the drilling simulator or the other
equipment.
If the drilling simulator must be classified as operating equipment and if it is the property
of Thule Drilling, it will as a starting point be encompassed under Tillitsmann ASA’s
surety in operating equipment.
7.1.8 Rig equipment in storage and equipment in containers
The winding up estate has received information that there are a number of pieces of
equipment that were to be installed in the uncompleted rigs (Force and Energy), stored in a
number of warehouses/storage facilities in Europe, the United Arab Emirates and the USA.
The winding up estate has received a list of equipment from the Company’s representatives.
This is equipment that Thule Drilling has purchased from suppliers with the plan of selling
on to its subsidiaries. To the degree that the equipment was purchased and paid for by the
Company, and that the subsidiaries have not secured legal protection, it is possible that the
equipment can be deemed to be part of Thule Drilling’s stock of goods and equipment. The
Company’s stock of goods and equipment are not mortgaged, so that it is possible that these
may represent a certain worth for the winding up estate. Norsk Tillitsmann ASA has for its
part given notice that it is of the opinion that the equipment in question is encompassed
under that company’s surety.
It is noted here that some of the equipment is in the hands of storage facility owners that
have relatively high claims against the Company and have invoked their rights of retention
over the equipment. Some of the equipment has only been partially paid for. Work is ongoing
to bring full clarity to the situation.
On the basis of the loan agreement between Thule Drilling and Norsk Tillitsmann ASA, the
equipment that was purchased as required for use on the rigs was to be the property of Thule
Drilling until the equipment was delivered to the yard for installation on the rigs. It
nonetheless appears that equipment in question was transferred for accounting purposes to
the rig-owning companies in connection with the purchases. However, due to that Thule
Drilling provided management services to the subsidiaries, no actual transfer of the
equipment took place simultaneously with accounting entries showing ownership transferred
to the subsidiaries. Thule Drilling paid for all the equipment. We will attempt to clarify these
matters as they can have influence on amongst other things the assessment of the agreed
surety and/or the actual ownership of the equipment.
The winding up estate is also continuing its work of clarifying the circumstances pertaining to
rig equipment stored in more than 40 containers. According to information to hand the
equipment in question is of considerable value. At this point in time there is uncertainty as to
whether the equipment is the property of Thule Drilling or whether equipment or parts of it
belong to one or more of the subsidiaries or QGM LLC. The containers were allegedly
received by Royal Oyster under power of attorney issued by Thule Drilling, but without the
consent of the bond owners. Thus far Royal Oyster has not been willing to state the location
of the containers or the equipment. Royal Oyster claims that the equipment has been taken
hand on in order to protect its own interests. Other information the winding up estate has
received appears to indicate that the equipment has been shipped to Iran, which, if true is in
conflict with OFAC regulations. The Administrator winding up estate will investigate the
matter further in the administration of the winding up estate.
7.1.9 Claims for compensation
Representatives for the creditors have told the Administrator that they believe that there is
a basis for lodging large claims for compensation against the Company’s management
officers. For its part the Company’s management claims that there is a basis for lodging
claims against the mortgage holders. The alleged claims will be looked into and assessed
by the Administrator’s office in the further work with the winding up estate.
For the sake of good order it is noted that Ragnar Sjoner, who was elected as a member to
the Committee of Creditors, is disqualified from the process of assessing any claims against
Norsk Tillitsmann ASA and the bond owners, in that Sjoner is Managing Director of Norsk
Tillitsmann ASA.
The winding up estate has also been advised that there are grounds for lodging considerable
claims against QGM LLC in The United Arab Emirates. Our understanding is that Thule
Drilling has taken legal action against the yard with pleadings for compensation of MUSD
300. A counter-action/counter claim is said to have been launched for the same amount, see
below under sub-section 7.6.6. The Administrator will also make further investigations into
these matters in the further work with the winding up estate.
7.1.10 Other assets
Work is ongoing in attempts to clarify is there are other assets that can be retrieved for the
winding up estate. Refer also to sub-section. 7.2 below on this point.
7.2 Voidable dispositions
Work has commenced to clarify if any voidable dispositions exist in connection with the
operation of Thule Drilling. It is in particular payments that were made between 30th January
2010 (three months prior to the closing date for claims and to the date on which bankruptcy
proceedings were opened, together with the transfer of shares in QGM BVI, that will be assessed
first. At this point in time we are of the opinion that it would not be correct to comment further
on this in this report apart from mentioning that we are currently initiating work to bring
clarification to the background for a number of payments. It is too early to say whether the
winding up estate will receive additional assets as a result of that transactions can be reversed.
7.3 Activities after bankruptcy proceedings were opened
In practice there were no activities in the Company at the time bankruptcy proceedings were
opened. Immediately prior to the opening of bankruptcy proceedings the Administrator received
assistance from the Company’s management in gaining an overview of the situation. Apart from
this there has been no other activities in the Company after bankruptcy proceedings were
opened.
7.4 Sales
The winding up estate has not sold any assets to date. A number of parties have however notified
interest in the winding up estate concerning both the purchase of subsidiaries and/or the rigs.
Preliminary talks with the objective of clarifying a potential sales model have been held. Sales of
assets that form part of the winding up estate must for obvious reasons be implemented in close
co-operation with the bond/mortgage holder, Norsk Tillitsmann ASA.
We mention here that no decision has been made with regard to whether the winding up estate
must formally abandon any of the assets that are encompassed under the bankruptcy seizure.
This matter will be considered on an ongoing basis.
7.5 The Company’s liabilities
According to the accounts liabilities in Thule Drilling at the time bankruptcy proceedings were
NOK 1 863 634 715.-. However, in practice further claims will be received in connection with
the continuation of the bankruptcy, including but not limited to claims resulting from breach of
contract.
The closing date for claims has expired, but in that the date is not preclusive, experience tells us
that claims will be received after the closing date.
Claims received thus far are distributed as follows:
Secured claims NOK 1 868 394 987.50
Preferential claims, first class NOK 0.00
Preferential claims, second class NOK 138 374.00
Unsecured claims NOK 2 123 968 379.00
Non-priority claims NOK 560.00
Sum NOK 3 992 502 300,50
Claims lodged in other currencies than Norwegian kroner have been converted into Norwegian
kroner on the basis of the rate of exchange on the closing date for claims, i.e. 30th April 2010, cf.
section 3.
We mention here that only employees’ claims for wages/salaries and holiday pay have status as
preferential claims in class I. Work is underway to attain a full overview of such claims. The total
sum of these claims depends on whether or not employees manage to find new employment
prior to the expiry of their periods of notice. Further details of the preferential claims in class I
will be included in the next report.
With regard to preferential claims in class II, these will be claims resulting from outstanding,
unpaid value added tax, corporate tax and/or tax deductions. We dot have a full overview of
such claims at this time. Preliminary investigations indicate that no preferential claims will be
lodged for value added tax, in that the Company has had value added tax in credit during the
previous taxation periods. Tax deductions were deposited in a special bank account, so that any
outstanding unpaid tax will in all likelihood be paid from the balance. It is said that the Company
has not achieved a taxable surplus during the last couple of years.
The largest claims have been lodged by Norsk Tillitsmann ASA on behalf of the bond owners,
see sub-section 6.1.3 above, and QGM LLC which company has lodged a claim for NOK 1 951
455 000.-. Thule Drilling has for its part lodged a claim against the yard see sub-section 7.6.6
below.
7.6 In particular on disputes
Both the Company itself and the Company’s Subsidiaries have been involved in a number of
disputes in Norway and abroad. The Administrator will investigate these matters in more detail in
the continuation of the work.
In this initial report we limit ourselves to mentioning the following cases, which at the time
bankruptcy proceedings were opened, were being dealt with by the courts:
7.6.1 The Company – The Crown rep. by Skatt Øst
The case concerns changes in assessed tax and additional tax after the sale of the Company’s
shares in Zelie Industrial Limited. The Crown rep. by Skatt Øst won its case in Oslo Municipal
Court. The ruling means that the Company’s income was increased by a total of NOK
128,318,541.- of which NOK 25,663,708.- was entered as income in 2006. The remaining
outstanding was entered in the profit & loss account. The Company was ordered to pay 60 %
additional tax. As a result of that the Company was not in a tax position in 2006 and has not been
in the years thereafter, the ruling has not, to the best of our understanding, resulted in any tax
payable. It is not expected that tax will be payable for the earnings years 2009 or 2010. The
Company has in the meantime appealed the case. The appeal case before Borgarting Court of
Appeal was suspended on 20th September 2010 with authority in the Civil Disputes Act § 16-16
first paragraph litra c.
7.6.2 The Company – Terra Securities ASA, the winding up estate
The case concerns a claim lodged by Terra Securities ASA, The winding up estate mot the
Company after completing market making in 2007. Terra Securities ASA, the winding up
estate was successful in the Court of Arbitration, but the Company brought the case before
Oslo Municipal Court. The case has now been suspended and the winding up estate of Terra
Securities ASA, has been advised to lodge the claim against the Thule Drilling winding up
estate. The alleged claim is only NOK 40 000.- with the addition of interest on late payments
from 1st January 2009.
7.6.3 Norsk Tillitsmann ASA – the Company:
Norsk Tillitsmann ASA has petitioned for seizure of equipment owned by the Company, which
is currently in a storage facility owned by Superior Fabricators Inc in Baldwin, Louisiana, USA.
The background is the Company’s default of Loan agreement 3, described above in sub-section
6.1.3. The winding up estate has not reached a decision regarding the case at this point in time.
7.6.4 Norsk Tillitsmann ASA – Chekovo Ltd
According to information received the case is currently before the courts in Sharjah and concerns
seizure of the rig Thule Power.
7.6.5 Royal Oyster – the Company
The case concerns seizure to the advantage of Royal Oyster of the rig Thule Power and the two
new-buildings, Thule Energy and Thule Force. The background is an alleged claim against the
Company of approximately MUSD 57 that is alleged to relate to costs Royal Oyster has incurred
in connection with the rigs.
7.6.6 The QGM yard in Sharjah – the Company
The case concerns a claim for compensation of approximately MUSD 300 resulting from an
alleged breach of contract. A cross action is said to have been brought for the same amount.
7.6.7 RISC Management Limited – the Company
The case concerns a claim of GBP 686 627.60 resulting from alleged breaches of contracts. The
case is under hearing in the English High Court in London, but was suspended after the opening
of bankruptcy proceedings in the Company.
7.6.8 The Company – Law Company Wiersholm and the responsible lawyer in that company,
Law Company Clyde & Co LLP, Zurich Insurance Ireland limited and AIG Europe
The Company has filed a complaint with the Court of Conciliation with a claim for payment of
NOK 255 751 700,- plus interest on late payments from 15th December 2007 against Wiersholm
and Clyde & Co LLP. It is also argued that Zurich Insurance Ireland limited, Sweden Branch is
jointly and severally liable, upwardly limited to NOK 150 000 000.- and that AIG Europe is
jointly and severally liable for losses above NOK 150 000 000.- upwardly limited to NOK 300
000 000.-. The said claims concern the liability of lawyers after the Company as surety for a loan
to the shipbuilding company, QGM LLC, obtained surety in the shares of the company QGM
BVI, which owned 49 % of the shares in QGM LLC. Partiality has been pleaded against Clyde &
Co LLP as well as that the surety provided insufficient cover. Even though after two legal actions
the Company gained control of the shipbuilding company, the Company still claimed to have had
a greater loss inflicted on it. The Defendants have submitted replies, but the case was suspended
on 12th January of this year, after which a one-year time limit for taking legal action expires on
12th January 2011, cf. the Civil Disputes Act §§ 6-11 fifth paragraph (a) cf. 18-3 second paragraph.
7.6.9 Other cases
Apart from the above a number of other cases have been initiated at amongst other venues
Germany, England and the USA. It is not unlikely that suppliers in other locations have
instigated legal actions against Thule Drilling. The task of obtaining a full overview of all such
legal actions will in all likelihood be comprehensive.
7.7 Accrued and incurred costs
Work in connection with the winding up estate thus far has been extremely comprehensive and
time consuming. High costs have already been incurred in connection with the work. These will
be reported in more detail in a later report.
8 THE POSITION OF THE CREDITORS
8.1 Potential for cover
The main assets in the winding up estate – shares in the subsidiaries and the claims against the
subsidiaries – are according to information received mortgaged and therefore represent little or
no value to the winding up estate. We have in the meantime been informed that Thule Drilling
purchased some equipment that was destined for the subsidiaries’ rigs. It was planned to sell the
equipment in question to the subsidiaries on delivery to the shipyard or installation on the rigs.
To the degree that the equipment remains the property of Thule Drilling, or that the subsidiaries
have not arranged for legal protection for the acquisition of the equipment, this may represent a
value for the winding up estate. There is however uncertainty with regard to other circumstances,
hereunder rights of retention for the owners of the storage facilities where the equipment is kept
and also possible claims for outstanding unsettled accounts from the suppliers of the equipment.
These are all matters that will be the subject of further investigation in the Administrator’s
further work. The Administrator will also carry out the usual enquiries and investigations with
regard to the sureties that have allegedly been established to the advantage of Norsk Tillitsmann
ASA.
Until the above-mentioned matters have been clarified and clarification has also been attained
with regard to whether the winding up estate can receive assets as a result of the claims for
compensation and reversals resulting from voidable dispositions, it is not possible to provide 100
% reliable information with regard to whether the winding up estate will be in a position to
provide cover for creditors. We nonetheless mention that we, on the basis of the overview thus
far obtained, have no concrete grounds for assuming that any such cover will be particularly
large. This is due to that the most valuable assets in the winding up estate are in all probability
mortgaged against claims that far exceed the sales value of the mortgaged amounts in question.
As of today’s date one cannot exclude the possibility that the winding up estate of Thule Drilling
will be discontinued due to the lack of sufficient assets to cover the costs incurred in the
continuation of the administration of the winding up estate.
8.2 Examination of claims
No examination of claims has been carried out to date No examination of claims will be carried
out unless the winding up estate receives sufficient assets to ensure that dividends can be paid to
the creditors.
8.3 Further information to creditors
If the administration of the winding up estate has not been finalised within one year, it is likely
that a new report will be prepared. The new report will be sent to amongst others creditors who
have notified claims and will also be published on www.rosom.no.
9 ACTS AND CIRCUMSTANCES THAT MAY INCUR LIABILITY AND/OR
PUNISHABLE OFFENCES AND/OR QUARANTINE AND MORE.
The Administrator has received a number of allegations that punishable offences and actions
likely to result in quarantine have been perpetrated in connection with the operation of the
Company. These are matters that will be investigated in more detail, and that we do not find it
right and proper to comment on in this first report.
10 ACTIONS TAKEN IN HANDLING THE BANKRUPTCY TO DATE –
PROGRESS PLAN
10.1 Administration of the winding up estate to date
10.1.1 General
The usual measures and actions have been implemented in the initial phase of the administration
of the winding up estate such as the securing of bank accounts, subscriptions, securing of
documents and so forth. Standard letters and enquiries have been dispatched. Documents and
information acquired – from amongst other sources the Register of Enterprises and the
Norwegian Mapping Authority – have been examined.
10.1.2 Investigations
The Administrator’s office has, with the assistance of Chartered Accountant Per Ødegaard,
initiated a exceedingly comprehensive effort to obtain the best possible overview of the case,
hereunder current agreements/contracts, sureties and mortgages, legal processes and actions,
assets and so forth. Representatives of Ro Sommernes Law Company DA and Chartered
Accountant Ødegaard have also attended a number of meetings in The United Arab Emirates
with the involved parties established there. Extensive archives are currently being examined.
10.1.3 Employees
Immediately after the opening of bankruptcy proceedings representatives from Ro Sommernes
Law Company DA travelled to the Company’s offices at Hvalstad. A meeting was held with
Managing Director Anders-Ivar Olsen and three other employees. A separate meeting was also
held with the employees that had preferential claims for wages and holiday pay, where these
employees were informed of, amongst other matters, employees’ rights in connection with the
bankruptcy. Thus far applications have been sent to NAV Wage Guarantee Fund for cover of
holiday pay for 2009 for two of the Company’s employees. As mentioned under sub-section 6.3
over, two of the Company’s registered employees were associated with Thule Drilling through
consultancy agreements and will thus in all probability not have their wages and holiday pay
claims covered by NAV. The claim for wages and holiday pay for Anders-Ivar Olsen is probably
an unsecured claim against the winding up estate, as a result of his ownership interests in Thule
Drilling.
10.1.4 Consultancy agreements
At the time bankruptcy proceedings were opened the Company had five consultancy agreements.
The winding up estate has not acceded to any of these agreements.
10.1.5 Diverse
Very extensive work has thus far been carried out in connection with a number of circumstances
and matters that we find no reason to elucidate further on in this report.
10.2 Further work in the administration of the winding up estate
As mentioned in the above, the winding up estate of Thule Drilling must be characterised as a
large and extremely complex estate. It is obvious that extensive work should be carried out. It is
not possible at this point in time to attempt to provide detailed information about this work in
this initial report. We have therefore limited ourselves to referring to the above texts, and
hereunder mention that the work described under sub-section 10.1 above will be continued.
10.3 Information to the Administrator – guarantee for administrative costs
If any recipient of this report is in possession of information that he/she believes may be of
interest in connection with the handling of the winding up estate, we kindly request that the
Administrator be contacted without delay.
As previously mentioned in the report we cannot as of today’s date exclude that the winding up
estate of Thule Drilling will be discontinued due to lack of sufficient funds to cover the costs of
the administration of the winding up estate. For this reason the Administrator must in practice
limit his work until sufficient surety has been obtained to cover the costs that will be incurred.
For this reason we mention here that if any of the creditors are willing to place funds at the
disposal of the Administrator so that the work can be intensified and enable a more thorough
administration, the Administrator requests notification of this.
Oslo, 13th October 2010
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Ståle Sommernes Ragnar Sjoner
Administrator Committee of Creditors