DRILLING RIG SALES AGREEMENT
THIS DRILLING RIG SALES AGREEMENT, is entered into and is effective as of the
17th day of August, 2001 by and between R&B FALCON CORPORATION, a corporation
duly organized under the laws of the State of Delaware, with its principal
office located in Houston, Texas (hereafter referred to as "SELLER") and
TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES LIMITED., a limited liability company
duly organized under the laws of the Cayman Islands, with a registered office in
St. Michaels Barbados, (hereinafter referred to as "BUYER").
WHEREAS, SELLER is the owner of the drillship, PEREGRINE I which is presently
located in international waters off the coast of Brazil; and
WHEREAS, BUYER wishes to purchase the PEREGRINE I from SELLER and SELLER wishes
to sell the PEREGRINE I to BUYER, on the basis of the terms and conditions
contained in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements contained herein, BUYER and SELLER do hereby agree as follows:
I. DEFINITIONS
The following terms shall have the following meaning when used throughout
this Agreement and any Exhibits hereto:
A. "Agreement" - This Drilling Rig Sales Agreement between SELLER and
BUYER.
B. "Rig" - That certain drillship known as the " PEREGRINE I" owned by
SELLER and being of Bahamian flag and registry, with official
registration number of 731983, IMO No. 7907180, with Gross Tonnage of
11,710 and with Net Tonnage of 3,513, together with any machinery,
engines, equipment, anchors, cable, drilling machinery, drilling
equipment, pumps, drilling supplies, tools, stores, furniture, items
of personality, electrical, mechanical, or chemical, hydraulic and
other systems, actually located thereon, incorporated therein or
attached thereto. In addition the term shall include all items of
equipment, machinery and parts located on the Peregrine I. This sale
shall exclude any inventory, spares or other equipment which is kept
in a warehouse or other storage facility onshore. This sale shall not
include any item of any kind which belongs to a third party.
C. "Closing Date" - That mutually agreed upon date and time while the Rig
is located in international waters and outside the territorial
jurisdiction of any country at which time the closing of the sale
contemplated by this Agreement shall take place.
II. SALE AND PURCHASE; CONSIDERATION
A. SELLER does hereby agree to sell the Rig to BUYER and BUYER does
hereby agree to purchase the Rig from SELLER upon the basis of the
terms and conditions set forth in this Agreement.
B. As consideration for the sale of the Rig, BUYER hereby agrees to
execute and deliver to SELLER upon the Closing Date, a promissory note
in the amount of U.S.$85,000,000. Said Promissory Note shall be
substantially in the form of Exhibit "A" attached hereto and
incorporated herein.
C. On the Closing Date, representatives of SELLER and BUYER shall meet
for the purpose of closing the sale of the Rig. At the closing, upon
receiving BUYER'S Promissory Note in the amount of the lump sum sales
price, SELLER'S representative at the closing shall deliver to BUYER'S
representative at the closing the following:
1. A Xxxx of Sale of the Rig in a form similar to Exhibit "B"
attached hereto as well as any other documentation reasonably
requested by BUYER to enable it to register the Rig in BUYER'S
name.
2. Any technical or regulatory documentation pertaining to the Rig
which SELLER may have in its possession and which is not already
aboard the Rig, such as classification society certificates,
loadline certificates, radio licenses, engineering drawings,
etc.;
If the closing has not occurred by close of business on September 30,
2001, then this Agreement shall terminate, unless extended in writing
by mutual agreement, and neither SELLER nor BUYER shall have any
further obligations to the other with respect to the sale or purchase
of the Rig.
III. DELIVERY
Concurrent with the delivery of the Xxxx of Sale at the closing, SELLER
shall deliver physical possession of the Rig to BUYER in international
waters and outside the territorial jurisdiction of any country. Concurrent
with delivery of the Xxxx of Sale at the closing, BUYER shall acknowledge
acceptance of physical possession of the Rig by executing and delivering to
SELLER the Certificate of Acceptance of Delivery in the form attached
hereto as Exhibit "C" ("Certificate of Acceptance of Delivery"). Title to
and risk of loss of the Rig shall pass to BUYER as of the date and time
indicated upon the said Certificate of Acceptance of Delivery.
IV. REPRESENTATIONS AND WARRANTIES
A. BUYER hereby acknowledges that this sale and purchase of the Rig is on
an "as is, where is" basis, with all faults accepted by BUYER, and
that, except as expressly provided in Article V.A.1. and V.A.2. below,
this sale and purchase is WITHOUT ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, BY SELLER, AND THAT SELLER DOES NOT MAKE ANY
WARRANTY, GUARANTY, OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO THE RIG INCLUDING, BUT
NOT LIMITED TO, SEAWORTHINESS, VALUE, DESIGN, OPERATION,
MERCHANTABILITY, FITNESS FOR USE OR PARTICULAR PURPOSE OF THE RIG OR
AS TO THE ELIGIBILITY OF THE RIG FOR ANY PARTICULAR TRADE, AND BUYER
HEREBY WAIVES AS AGAINST SELLER ALL WARRANTIES OR REMEDIES OR
LIABILITIES WITH RESPECT TO SUCH WARRANTIES ARISING BY LAW OR
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OTHERWISE WITH RESPECT TO THE RIG, INCLUDING, BUT NOT LIMITED TO (a)
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND (b) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Nothing contained in
this Article V shall be construed as a waiver of any right which
SELLER or BUYER may have against any other person. As between SELLER
and BUYER the execution by BUYER of the Certificate of Acceptance of
Delivery shall be conclusive proof of the Rig's compliance with all
requirements of this Agreement.
1. SELLER represents and warrants that it is the legal owner of the
Rig and that it has the right to transfer full and clear title to
the Rig to BUYER.
2. SELLER represents and warrants that the Rig is free and clear of
any liens or encumbrances of any kind as of the Closing Date.
B. Shipyard Warranties and Guarantees. Effective as of the Closing Date,
SELLER hereby assigns, sells, transfers and conveys to BUYER all of
SELLER's rights and interests in and to any agreement, contract,
purchase order, guarantee, representation or warranty relating to the
construction, outfitting, commissioning or equipping of the Rig.
V. INDEMNITIES
Subject to the other provisions of this Agreement, and in particular except
as provided in Article IV hereof, SELLER shall indemnify, defend and hold
BUYER harmless from and against any claim arising out of or in connection
with the Rig in which the alleged event giving rise to such claim occurred
prior to the date and time indicated upon the Certificate of Acceptance of
Delivery. BUYER shall indemnify, defend and hold SELLER harmless from and
against any claim arising out of or in connection with the Rig in which the
alleged event giving rise to such claim occurred after the date and time
indicated upon the Certificate of Acceptance of Delivery.
VI. ASSIGNMENT
This Agreement may not be assigned by either party without the prior
written consent of the other party, which consent shall not be unreasonably
withheld.
VII. TAXES
SELLER shall bear all income or capital gains taxes, if any, which are
assessed on account of this sale by any country or any subdivision thereof,
and shall hold BUYER harmless from and against any such taxes. BUYER shall
bear all sales, value added or any other type of taxes, if any, which are
assessed on account of this sale by any country or any subdivision thereof,
regardless of against whom the tax is assessed, and shall hold SELLER
harmless from and against such taxes.
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VIII. FLAGGING AUTHORITIES
If BUYER intends to leave the Rig flagged in the current flag country,
BUYER shall, immediately following this sale, notify the appropriate flag
country authorities that the Rig has been sold to it, and shall hold SELLER
harmless from any charges, penalties or fees assessed by the flag country
authorities in connection with a failure to timely notify them of this
sale, or the change in ownership of the Rig.
IX. CHOICE OF LAW AND VENUE
The parties agree that this Agreement shall be governed by and construed in
accordance with the laws of the Cayman Islands, and the courts of the
Cayman Islands shall be the exclusive courts of venue and jurisdiction for
any claim or action brought hereunder.
X. BROKERAGE
Each party agrees to indemnify the other party from and against all loss,
cost, damage, or expense arising out of claims for fees or commissions of
brokers employed or alleged to have been employed by such indemnifying
party.
XI. COST OF THE TRANSACTION
Whether or not the transactions contemplated hereby shall be consummated,
the parties agree that each party will pay the fees, expenses and
disbursements of such party and its agents, representatives, and counsel
incurred in connection with the subject matter of this Agreement.
It is recommended by SELLER that BUYER have third party experts inspect the
Rig prior to purchase by BUYER. Although SELLER shall make the Rig
available and cooperate in facilitating any such inspection, BUYER agrees
that the costs for carrying out such inspection shall belong to BUYER and
BUYER shall reimburse to SELLER any costs or expenses SELLER incurs in
preparing the Rig for inspection.
XII. NOTICES
Any notice, demand or communication required, permitted or desired to be
given hereunder shall be deemed effectively given when personally delivered
or telecopied or mailed by prepaid certified mail, return receipt
requested, addressed as follows:
SELLER: R&B Falcon Corporation
Four Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx, 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xx. Xxxx X. Xxxxx
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BUYER: Transocean Offshore International Ventures Limited
Xxxxxx Xxxxx,
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Tel: 000-000-0000; Fax: 000-000-0000
Attn: Xx. Xxxx XxXxxxx
or to such other address, and to the attention of such other person or
officer as any party may designate.
XIII. SEVERABILITY
In the event any provision of this Agreement is held to be invalid, illegal
or unenforceable for any reason and in any respect, such invalidity,
illegality, or unenforceability shall in no event affect, prejudice of
disturb the validity of the remainder of this Agreement, which shall be in
full force and effect, enforceable in accordance with its terms.
XIV. ENTIRE AGREEMENT/AMENDMENT
This Agreement supersedes all previous contracts, and constitutes the
entire agreement of whatsoever kind or nature existing between or among the
parties respecting the sale of the Rig and no party shall be entitled to
other benefits than those specified herein. As between or among the
parties, no oral statements, prior correspondence, schedules, lists,
brochures, drawings or written material of any kind not specifically
incorporated herein shall be of any force and effect, and shall not be
relied upon by either party. All prior representations or agreements,
whether written or verbal, not expressly incorporated herein, are
superseded and no changes in or additions to this Agreement shall be
recognized unless and until made in writing and signed by both parties
hereto.
XV. LEGAL FEES AND COSTS
In the event any party elects to incur legal expenses to enforce or
interpret any provision of this Agreement or to defend against a claim by
the other party, the prevailing party will be entitled to recover from the
losing party such legal expenses, including, without limitation, attorneys'
fees, costs, and necessary disbursements, in addition to any other relief
to which such party shall be entitled.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in multiple originals and counterparts by their duly authorized officers, all as
of the day and year first above written.
SELLER: R&B FALCON CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Assistant Secretary
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BUYER: TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES LIMITED
By: /s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
------------------------
Title: Vice President
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EXHIBIT "A"
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PROFORMA PROMISSORY NOTE
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PROMISSORY NOTE
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US$85,000,000
Grand Cayman, Cayman Islands ___________________, 2001
FOR VALUE RECEIVED, Transocean Offshore Ventures International Limited
(hereafter called "Maker") promises to pay to the order of R&B Falcon
Corporation, a Delaware corporation (hereafter called "Payee") at Four Greenway
Plaza, Houston, Texas, or at such other place as the Payee or any other holder
hereof may designate, for the purchase of the drillship PEREGRINE I the
principal sum of EIGHTY FIVE MILLION DOLLARS (US$85,000,000), together with
interest on the whole of the principal amount hereof from time to time remaining
unpaid from the date hereof until maturity at a per-annum rate of interest,
based upon 365 days or 366 days, as the case may be, of __________________ per
cent (_____%) .
The principal sum of this Note shall be due and payable ten (10) years from
the date hereof; interest to accrue upon the principal sum from time to time
owing and unpaid hereunder shall be due and payable yearly as it accrues, with
the first of such yearly installment of interest being due and payable on the
first anniversary hereof and with subsequent such installments of interest being
due and payable on the same day of each succeeding year thereafter. The final
installment of interest hereunder shall be due and payable not later than the
maturity of the principal sum hereof, howsoever such maturity may be brought
about.
The Maker may prepay this Note, in full or in part, at any time without the
payment of any premium or fee. Payee or any other holder hereof may, at its
option, apply any such prepayments to the payment of (i) accrued but unpaid
interest, and/or (ii) principal, in any order, manner or proportion which it
deems appropriate.
All past due principal and interest on this Note shall bear interest from
the date it is due until the date of payment at an interest rate of
_____________ percent (______%) per annum, or the maximum rate of interest
allowed by the laws governing this instrument, if that be a lesser rate.
It is expressly agreed and understood that time is of the essence of this
agreement. If default shall be made in the payment of principal or interest on
this Note, as the same becomes due and payable, or if there is a default in any
of the terms, covenants, agreements, conditions or provisions set forth herein,
or should the Maker or any endorser, surety or guarantor hereof become insolvent
or commit an act of bankruptcy or make an assignment for the benefit of
creditors or authorize the filing of a voluntary petition in bankruptcy or
should a receiver of any of the assets of Maker be appointed, or should
involuntary bankruptcy proceedings be filed or threatened against Maker or any
endorser, surety or guarantor hereof, then in any of such events, Payee or any
other holder hereof may, at its option, and without notice, declare the entirety
of this Note and any other note or notes executed by Maker and held by Payee or
any other holder hereof, together with all accrued but unpaid interest hereof
and thereon, immediately due and payable and to foreclose any and all liens
which may be securing the same. Failure to exercise this option shall not
constitute a waiver on the part of Payee or any other holder hereof of the right
to exercise said option at any other time.
If this Note is not paid at maturity, however such maturity may be brought
about, and the same is placed in the hands of an attorney for collection, or if
collected by suit or through bankruptcy, receivership or other legal or judicial
proceedings, the Maker hereof agrees to pay an additional amount of ten (10%)
upon the principal and interest hereof then owing as costs of collection and
attorneys' fees, or such greater amount as may be reasonable.
This Note shall be the joint and several obligation of the maker and all
endorsers and sureties and shall be binding upon them, their legal
representatives, successors and assigns. The maker and all sureties, endorsers
and guarantors of this Note and each party hereafter assuming or otherwise
becoming liable hereon (i) waive demand, presentment for payment, notices of
nonpayment, protest, notice of protest, notice of intent to accelerate the
maturity hereof, notice of acceleration of the maturity hereof, and all other
notices, filing of suit and diligence in collecting this Note or enforcing any
of the security hereof, (ii) agree to any substitution, exchange or release of
any such security or the release of any party primarily or secondarily liable
hereon, (iii) agree that the Payee or other holder hereof shall not be required
first to institute suit to exhaust its remedies hereon against the Maker or
others liable or to become liable hereon or to enforce its rights against any
security herefor in order to enforce payment of this Note by it, and (iv)
consent to any extensions or postponements of time of payment of this Note and
to any other indulgence with respect hereto without notice thereof to any of
them.
As further security for this Note, Maker gives to the Payee or other holder
hereof a lien and contractual right of set-off in and to all money and assets of
Maker, or any guarantor hereof, now or at any time hereafter coming within the
custody or control of the Payee or other holder of this Note.
TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES LIMITED
By: __________________________
Name: ________________________
Title: _______________________
EXHIBIT "C"
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PROFORMA CERTIFICATE OF ACCEPTANCE OF DELIVERY
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CERTIFICATE OF ACCEPTANCE OF DELIVERY
The undersigned Transocean Offshore International Ventures Limited, a
limited liability company duly organized under the laws of the Cayman Islands
("Buyer"), does hereby accept for all purposes the sale and transfer of legal
title to and acknowledges acceptance of physical possession of that certain
drillship known as the "PEREGRINE I", being of Bahamian flag and registry with
official registration number of 731983 IMO No. 7907180 and does also hereby
accept the Xxxx of Sale for such vessel delivered this day to it by R&B Falcon
Corporation, a corporation duly organized under the laws of Delaware ("Seller").
Legal title and risk of loss is agreed to have transferred from Seller to Buyer
at _______ o'clock __.m. on __________________, 2001, ________________________
Time.
R&B FALCON CORPORATION TRANSOCEAN OFFSHORE INTERNATIONAL
VENTURES LIMITED
By:______________________ By:______________________
Name:____________________ Name:____________________
Title:___________________ Title:___________________
