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 dynamically positioned drillship, DEEPWATER
MILLENIUM which is presently located in international waters in the Gulf of
Mexico; and
WHEREAS, BUYER wishes to purchase the DEEPWATER MILLENIUM from SELLER and
SELLER wishes to sell the DEEPWATER MILLENIUM to BUYER, on the basis of the
terms and conditions contained in this Agreement;
WHEREAS, BUYER has acquired rights to receive payment of certain amounts due
from SELLER to Transocean Sedco Forex under a Revolving Credit Agreement dated
April 6th, 2001 (the "Revolving Credit Agreement Participation").
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 dynamically positioned drillship known as the "
DEEPWATER MILLENIUM" owned by SELLER and being of Panamanian flag and
registry, with official registration number of 26352-99-A, IMO No.
9180229, with Gross Tonnage of 60,093 and with Net Tonnage of 18,025,
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 Deepwater Millenium. 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. Upon the Closing Date, as consideration for the sale of the Rig, BUYER
hereby agrees to execute and deliver to SELLER an undivided interest
in the Revolving Credit Participation in a principle amount equal to
U.S$270,000,000 in a form similar to Exhibit "A" attached hereto.
BUYER further agrees to release SELLER from its obligation to pay said
principle amount under the Revolving Credit Participation.
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 consideration referred to above, 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
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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
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
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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.
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:
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SELLER: R&B Falcon Corporation
Four Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx, 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xx. Xxxx X. Xxxxx
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.
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SELLER: R&B FALCON CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------
Title: Assistant Secretary
-----------------------
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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MEMORANDUM OF
CANCELLATION
This MEMORANDUM OF CANCELLATION (this "Memorandum") is executed as of
_______________, 2001 by and between TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES
LTD., a limited liability company duly organized under the laws of the Cayman
Islands and with a registered office in St. Michael's, Barbados ("TOIVL") and
R&B FALCON CORPORATION, a Delaware corporation with principal offices in
Houston, Texas, USA ("Borrower").
WITNESSETH:
WHEREAS, Transocean Sedco Forex Inc., a Cayman Islands corporation
("TSF") has entered into that certain Revolving Credit Agreement dated as of
April 6, 2001 (as amended or otherwise modified from time to time, the "Credit
Agreement"), between TSF, as the Lender, and the Borrower (Capitalized terms not
defined herein are defined in the Credit Agreement); and
WHEREAS, in connection with the Credit Agreement, the Borrower
executed that certain Promissory Note in the original principal amount of
$1,800,000,000 payable to TSF (the "Promissory Note"); and
WHEREAS, pursuant to that certain Payment Rights Contribution
Agreement dated as of __________, 2001 by and between TSF and TOIVL, TSF
assigned, as a contribution to the capital of TOIVL, the right to receive
payment under the Promissory Note in an amount equal to $1,245,000,000, plus
interest thereon (the "Contributed Obligations"); and
WHEREAS, pursuant to that certain Drilling Rig Sale Agreement dated as
of ____________, 2001 by and between TOIVL and the Borrower (the "Drilling Rig
Sale Agreement"), TOIVL desires to cancel the indebtedness of the Borrower
represented by the Contributed Obligations as consideration for the assets and
property which shall be transferred to Borrower and which are the subject matter
of the Drilling Rig Sale Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. TOIVL hereby cancels an amount of the Contributed Obligations
equal to the principal amount of $270,000,000 (the "Cancelled Amount")
effective on ________________ (the "Cancellation Date").
2. On the Cancellation Date, Borrower shall assign, convey and
transfer to TOIVL the assets and property described on Exhibit A
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attached hereto.
3. Borrower agrees to the cancellation of the Cancelled Amount and
agrees to execute and deliver all such further acts, conveyances,
documents and assurances reasonably requested by TOIVL in order to
carry out and effectuate the transfer of property contemplated above.
4. From and after the Cancellation Date, Borrower shall not be
obligated to pay to TOIVL any amounts attributable to or relating to
the Cancelled Amount, whether consisting of sums advanced, interest
thereon, or any other amounts of any character whatsoever.
5. It is agreed and understood that no cancellation hereunder shall
affect the Borrower's liability for Loans under the Credit Agreement
which are not Contributed Obligations.
IN WITNESS WHEREOF, the parties have caused this Memorandum to be duly
executed by their respective officers thereunto duly authorized.
TRANSOCEAN OFFSHORE
INTERNATIONAL VENTURES LTD.
By:______________________________
Name:____________________________
Title:___________________________
R&B FALCON CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
The undersigned acknowledges the cancellation of the Cancelled Amount
and agrees that an amount equal to the Cancelled Amount shall be restored to
availability under the Credit Facility Commitment of the Credit Agreement.
TRANSOCEAN SEDCO FOREX INC.
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT "B"
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PROFORMA XXXX OF SALE
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XXXX OF SALE
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| Official Number | Name of Ship | No. Date and port of registry |
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| | | |
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| Type of Ship | Horse Power of Engines, if any |
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| | |
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Length: _______________ Breadth:__________ Depth:_________
Gross Tonnage:________________ Net Tonnage:___________________
And as described in more detail in the Certificate of Surveyor and the Register
Book.
WE, _____________________________ (hereinafter called "the VENDORS") having
our principal place of business at ________________________________________
___________ in consideration with the sum of ___________________________________
paid to us by _____________________________ (domicile) (hereinafter called "the
PURCHASER") the receipt whereof is hereby acknowledged, hereby transfer our
whole title and interest in the ship above particularly described, and in the
boats, tackle and other appurtenances belonging to the said ship to the
PURCHASERS. Further we, the VENDORS for ourselves and our successors covenant
with the PURCHASERS and their assigns, that we have power to transfer the said
ship and title thereto in manner aforesaid and that the same is free from all
debts, encumbrances and maritime liens.
IN WITNESS WHEREOF we have executed this Xxxx of Sale this _______ day of
________, 2000. SIGNED on behalf the VENDORS by _________________ in his
capacity as _________________ of the VENDORS and in pursuance of a resolution of
the Board of Directors of the VENDORS.
(Name of the company)
(Signed) _____________________________
ACCEPTANCE OF SALE
THE UNDERSIGNED _________________________ on behalf of and representing the
corporation named __________________ in the Xxxx of Sale overleaf, in my
position as ____________ of the said corporation HEREBY ACCEPT for all legal
purposes, the sale and transfer effected by the said Xxxx of Sale to the said
Corporation by ________________________
Of the vessel ______________ referred to in the said Xxxx of Sale.
Dated the ___________ of ______________, 2000.
(Name of the company)
_____________________________
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
dynamically positioned drillship known as the "DEEPWATER MILLENIUM", being of
Panamanian flag and registry with official registration number of 26352-99-A IMO
No. 9180229 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:_______________________
