EXHIBIT 10.49
FORMARITIMA LTD.
- and -
PRIDE-FORAMER S.A.
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AMETHYST 7 TECHNICAL SERVICES AGREEMENT
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THIS AGREEMENT is made the 5th day of November 1998,
BETWEEN:
1. FORMARITIMA LTD., a company incorporated in the the British Virgin Islands
having its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Trust Co. BVI
Limited, P.O. Box 985, ▇▇▇▇▇▇▇'▇ ▇▇▇, Road Town, Tortola, British Virgin
Islands, (hereafter referred to as "Formaritima"), being represented by
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, duly entitled.
2. PRIDE-FORAMER S.A., a company incorporated in France with its registered
office at ▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ Dame Rose 78143 Velizy-Villacoublay
(hereafter referred to as "Foramer"), being represented by ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇, duly entitled.
FORMARITIMA and PRIDE-FORAMER are hereinafter referred to collectively as
"PARTIES" and individually as "PARTY".
WHEREAS:
A. Formaritima is a 50/50 joint venture company set up by Foramer of France
and Maritima Petroleo e Engenharia Ltda of Brazil (hereinafter referred
to as "Maritima") for the provision of services to operate drilling and
workover rigs.
B. Maritima has been awarded a charter contract (hereinafter referred to as
the "Charter") by Petroleo Brasileiro S.A. (hereinafter referred to as
"PETROBRAS") eachfor the provision of a dynamically positioned
semi-submersible drilling or workover rig (hereinafter referred to as a
"RIG") pursuant to an invitation to bid. The obligations and rights under
the Charter have been or will be assigned to Petrodrill Seven Limited
(hereinafter referred to as an "OWNER").
C. The Owner has entered into a management agreement (hereinafter the
"Management Agreement") with Formaritima for the management of the Rigs
and the provision of certain technical services in order to assist the
Owners to perform their obligations pursuant to the Charter.
NOW, THEREFORE in consideration of the mutual covenants and obligations
hereafter set forth, it is hereby agreed between the Parties as follows:
1. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Amethyst Financial Company Ltd.s
Shareholders Agreement of even date herewith among Drillpetro Inc.,
Westville Management Corporation and Techdrill Inc.
2. OBJECT
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The Object of the Agreement is the supply by Foramer to Formaritima of
services such as, but not limited to, the services specified in Clause 4
of this Agreement.
3. TERM
3.1 The term of the Agreement shall be the same as the Management Agreement.
However:
3.1.1 This Agreement shall be terminated with respect to the Rig in the event
of the actual or constructive or compromised or arranged total loss or
requisition for title of the Rig on the date four months after such total
loss occurs or is agreed with Lenders (as the case may be, or such other
date as may be agreed).
3.1.2 The Agreement may by terminated by Formaritima at any time, upon a notice
period of seven (7) days, if Formaritima is not satisfied for sound
reasons with Foramer s performance, having given Foramer notice of its
deficiencies and the opportunity to correct these within a period of 15
days. In such case, no payment shall become due by Formaritima to Foramer
for unperformed services.
3.1.3 It is agreed by the Parties that the effective performance of the
Agreement shall include, without limitation, sea trials and mobilization
of the Rig to Brazil prior to the commencement of the Charter, the
assistance to demobilize upon termination of the Charter and the
resolution of any outstanding unresolved contractual issues at the end of
the Charter.
3.2 NOT USED
4. SCOPE OF SERVICES PROVIDED BY FORAMER
The scope of services (the "Technical Services") to be provided by
Foramer for each Rig is set out in Appendix 1.
5. COMPENSATION/REMUNERATION
5.1 All services are to be provided by Foramer to Formaritima on an open
book, "at cost" basis, duly justified by direct reference to industry
standards. Formaritima will pay Foramer for the Technical Services the
rates stipulated in Appendix 4 herein.
5.2 Formaritima will pay Foramer a management fee amounting to US$1,250 per
day for the Rig, commencing at the start of pre-delivery sea trials and
ending on the last day of drilling or workover operations under each
Charter or upon demobilization of the Rig thereunder, whichever is later,
or upon any prior termination of the Agreement.
5.3 Foramer will be responsible for the provision of budgets associated with
the Technical Services. The first operating budget concerning costs
associated with sea trials and mobilization will be presented by Foramer
to Formaritima six months in advance of the anticipated date of arrival
of the Rig at Macae, Brazil or such other
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place as which may be notified by Petrobras. The Parties will meet on a
quarterly basis and Foramer will present to Formaritima the provisional
monthly budgets.
Formaritima will review the budget and, if in agreement, will approve the
budget. The approval of said budget for each quarterly period will be
given by Formaritima prior to 31st December, 31st March, 30th June and
30th September of each year, respectively, provided always that the said
budget is presented by Foramer to Formaritima prior to the 30th of
November, 28th of February, 31st of May and 31st of August, respectively.
5.4 In the case of a disputed invoice, Formaritima will advise Foramer of the
item under dispute specifying the complaint within fifteen (15) days of
receipt of such invoice but will pay the undisputed part. The disputed
item will be paid as may be mutually agreed.
5.5 Payments shall be made to a bank account nominated on each invoice.
6. TAXES
Any taxes or charges applied by local authorities in France to Foramer
shall be for Foramer's account.
7. LIABILITIES
7.1 COMPLIANCE WITH LAW AND REGULATION
Foramer undertakes that in performance of its obligations under this
Agreement it will comply with all applicable laws and regulations in
Brazil and France of any Governmental Authority.
7.2 LIABILITIES BETWEEN THE PARTIES
7.2.1 Foramer shall hold harmless and indemnify Formaritima from and against
all claims, costs expenses or liabilities arising from or connected with
the performance of this Agreement in respect of:
(i) death of or personal injury to any of the personnel of the Foramer
Group;
(ii) loss of or damage to the property of the Foramer Group; and
(ii) any consequential or economic loss or damage suffered by the Foramer
Group;
howsoever arising and irrespective of negligence or other breach of legal
duty by the Formaritima Group.
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7.2.2 Formaritima shall hold harmless and indemnify Foramer from and against
all claims, costs, expenses or liabilities arising from or connected with
the performance of this Agreement in respect of:
(i) death of or personal injury to any of personnel of the Formaritima
Group;
(ii) loss of or damage to the property of the Formaritima Group; and
(iii) any consequential or economic loss or damage suffered by the
Formaritima Group;
howsoever arising and irrespective of negligence or other breach of legal
duty by the Foramer Group.
7.2.3 For the purposes of this Clause 7.2, the Formaritima Group means
Formaritima, its associated companies, its other sub-contractors and
suppliers, the Owner, Petrobras, and the officers, employees and agents
of any of them.
7.2.4 For the purposes of this Clause 7.2 the Foramer Group means Foramer,
its associated companies, its sub-contractors and suppliers and the
officers, employees and agents of any of them.
7.2.5 For the express purposes of Clause 7 of this Agreement only, Formaritima
contracts on its own behalf and expressly as agent on behalf of and as
trustee for the benefit of all persons who are or may be from time to
time within the Formaritima Group (as defined in Clause 7.2.3) and all
such persons shall to this extent be deemed to be parties to this
Agreement.
7.2.6 For the express purposes of Clause 7 of this Agreement only, Foramer
contracts on its own behalf and expressly as agent on behalf of and as
trustee for the benefit of all persons who are or may be from time to
time within the Foramer Group (as defined in Clause 7.2.4) and all such
persons shall to this extent be deemed to be parties to this Agreement.
7.3 INDEMNITY FOR OPERATIONS
Save as is provided in Article 7.2. above, Formaritima shall indemnify
and hold harmless and shall procure that Owners shall indemnify and hold
harmless Foramer from and against all actions, proceedings, claims,
demands or liabilities whatsoever that may be brought by any other person
against, or incurred by Foramer in relation to or in connection with its
performance of this Agreement with has arisen from the gross negligence
or willful misconduct of Foramer, in which event the liability of Foramer
shall be limited to the aggregate of the management fee received by
Foramer in the preceding 12 months for the Rig.
8. CONFIDENTIAL INFORMATION
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All information related to this Agreement, regardless of whether such
information concerns Formaritima, its clients, its associated companies,
or its contractors, shall be treated as confidential and shall not be
divulged by Foramer to any third party without the prior written consent
of Formaritima. The hereabove obligations shall survive termination of
the Agreement and shall remain in force for so long as the information
covered by confidentiality has not otherwise become public knowledge.
9. EMPLOYMENT OF PERSONNEL
No Foramer personnel shall be deemed to be employees, either temporary or
permanent of Formaritima and shall at all times be deemed employed by
Foramer.
Foramer shall have the sole responsibility for the preparation of payroll
and the payment of Foramer personnel, wages, compensation, remittance,
allowance, insurance and indemnities of whatever kind and in complying
with all applicable labour and local taxation regulations.
In particular and depending of the regulation for employing the French
personnel or any of Foramer personnel, extra charge may be imposed when
changing of zone of operations or lay off charges may have to be paid
when changing of zone of operations or when a Charter terminates. Foramer
shall be liable for and agrees to protect, defend and hold Formaritima
harmless from and against any loss suit or claim of any kind whatsoever
which may arise as a consequence of or related to the payment of these
charges.
10. INSURANCE
10.1 FORAMERS INSURANCES
Foramer undertakes that it will take out all insurance policies to cover
its liabilities as set forth in Article 7 of this Agreement and as
required of Owners under the terms of the Charters, such insurances shall
include but not be limited to the following:
(a) Workmen's Compensation insurance and Employer s Liability insurance for
damage suffered by its personnel in amounts not less than those required
by applicable laws in France.
(b) Comprehensive general liability insurance for its responsibility to third
parties in amount not less than those required for any one occurrence by
the Charters.
(c) All insurance policies as required to cover its equipment and/or materials
and those belonging to any service companies and for which Foramer is
responsible.
10.2 NOT USED
10.3 GENERAL PROVISIONS
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For all insurance policies taken out:
(a) Foramer shall comply with the insurance regulations in force in
Brazil and France.
(b) Formaritima shall bear the costs of the premiums, deductibles, fees
and expenses relative to all policies effected pursuant to the
provisions of this Agreement.
(c) Each Party shall procure that the other Party shall be named as
co-assured to the extent permitted so as to give effect to the
provisions of Article 7 of this Agreement.
(d) All of the insurance policies taken out shall state the
underwriter's waiver of subrogation to give effect to the provisions
of Clause 7 of this Agreement.
(e) Foramer shall, on request by Formaritima, furnish copies of the
insurance policies it is bound to take out pursuant to Clause 10 of
this Agreement.
11. AUDIT
Foramer shall keep and cause its contractor(s) and subcontractor(s) to
keep the books, payrolls, receipt, vouchers, financial records, personnel
records and any document related to the work thereunder and required for
administration purposes for the term of the Agreement and for a limited
period of two (2) years after termination hereof. Formaritima, through
its duly authorized representatives, shall have free access with 15 days
notice with no restriction, to such information, whenever required by
Formaritima, and it shall also have the right, at any time subject to
previous notification to Foramer, to perform the audits it deems
necessary of the aforementioned books, payrolls, receipts, vouchers,
records and files in general.
Formaritima reserves the right to audit Foramer's activities as deemed
necessary and/or appropriate by Formaritima, in order to check the
contents and compliance with the terms herein.
Notwithstanding the foregoing, in no event shall Formaritimas right of
audit be construed as a release or waiver of any of Foramers obligations
under the Agreement.
12. MISCELLANEOUS
12.1.1 Each party to this Agreement shall be relieved from complying with any
term of this Agreement to the extent that, and only so long as, such
compliance is prevented or delayed by force majeure, which is defined as
civil or labour disturbances, riots, strikes (other than a strike limited
to the employees of either Party), wars (declared or undeclared),
military actions, insurrections, rebellion, acts of any governmental or
military agency under actual or assumed authority, action of elements,
floods, storm or other acts of God or any cause beyond the control of
either Party, whether or not
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similar to the matters herein specifically enumerated and provided that
the event shall not have been caused by the action or negligence of that
Party and/or the Parties affected shall do its, or their, utmost to
remedy the above circumstances.
12.1.2 Any Party claiming force majeure shall promptly notify the other Party,
with the evidence of the occurrence of such event.
12.1.3 If either Party hereto is prevented from or delayed in performing all or
any of its obligations thereunder as a direct result of force majeure,
such non performance shall not be considered as a breach of this
Agreement and that Party shall be relieved from such obligation which
shall suspend payment by the other Party for the duration of such force
majeure.
12.1.4 Notwithstanding the foregoing to the extent that the event claimed as
force majeure impacts upon or would impact upon the performance of any
Charter, such event must be recognized as a force majeure event in terms
of the relevantCharter before it can qualify as a force majeure event
hereunder.
12.2 BANKRUPTCY OR ABANDONMENT OF OPERATIONS
Should Foramer become insolvent or enter into any arrangement with or for
the benefit of its creditors or become unable or refuse or neglect to
perform its obligations hereunder or if Foramer s equipment is seized or
taken in execution, Formaritima may, by notice in writing to Foramer,
terminate this Agreement without thereby affecting in other respects the
obligations or liabilities of Foramer.
12.3 ASSIGNMENT OF AGREEMENT
Neither Party may assign the Agreement, either wholly or in part, except
with the prior written authorization of the other Party, which
authorization may not be unreasonably withheld.
13. NOTICE
All notices, invoices and other communications required pursuant to this
Agreement shall be in writing and deemed to have been sufficiently given
or made if delivered by hand or send by fax to the addressee at the
address set out below;
in the case of Formaritima to: with a copy to:
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FORMARITIMA LTD. PRIDE INTERNATIONAL, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ c/o ▇▇▇▇ ▇ ▇▇▇▇▇
Trust Co. BVI Limited, 5847 San ▇▇▇▇▇▇
P. ▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ s Cay, Road Town Houston, TX 77057-3011
Tortola, British Virgin Island Tel: (▇▇▇)▇▇▇-▇▇▇▇
Tel: (▇▇▇)▇▇▇-▇▇▇▇ Fax: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
in the case of Foramer to:
PRIDE-FORAMER S.A
▇▇ ▇▇▇, ▇▇▇ Grange Dame Rose - ▇.▇. ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇ ▇▇ ▇▇ ▇▇ 58
Fax: ▇▇▇ ▇▇ ▇ ▇▇ ▇▇ ▇▇ 25
or to such other address as the relevant Party may from time to time
notify to the other.
14. GOVERNING LAW AND ARBITRATION
14.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of England.
14.2 Any dispute or difference arising in connection with this Agreement,
shall if possible, be settled by mutual amicable agreement.
14.3 If any dispute should arise in connection with the interpretation and
fulfilment of this Agreement the same shall be decided by arbitration in
the city of London and shall be referred to a single arbitrator (an
Arbitrator) to be appointed by the Parties hereto. If the Parties
cannot agree upon the appointment of the single a Arbitrator the dispute
shall be settled by three Arbitrators, each Party appointing one
Arbitrator, the third being appointed by the Chairman for the time being
of the London Maritime Arbitrators Association.
14.4 If either of the appointed Arbitrators refuses or is incapable of acting,
the Party who appointed him shall appoint a new Arbitrator in his place.
14.5 If one of the Parties fails to appoint an Arbitrator, either originally
or by way of substitution, for two weeks after the other Party having
appointed his Arbitrator has sent the Party making default notice by mail
or facsimile to make the appointment, the Party appointing the third
Arbitrator shall, after application from the Party having appointed his
Arbitrator, also appoint an Arbitrator on behalf of the Party making
default.
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14.6 The award rendered by the Arbitration Court shall be final and binding
upon the Parties and may, if necessary, be enforced by the Court or other
competent authority in the same manner as a judgment in the Court of
Justice.
14.7 Performance under this Agreement shall, if reasonably possible, continue
during the Arbitration proceedings.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
Parties hereto the day and year first above written.
Signed in two duplicate originals in
SIGNED by /s/ Illegible
)
for and on behalf of )
FORMARITIMA LTD. )
in the presence of:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
)
SIGNED by /s/ Illegible
)
for and on behalf of )
PRIDE-FORAMER S.A. )
in the presence of:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
)
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APPENDIX 1
SCOPE OF SERVICES PROVIDED BY FORAMER
1. Contractor shall supply the PERSONNEL to perform the services specified in
Appendix 2.
The PERSONNEL shall perform the services required hereunder on the Rig or
such other place needed under the Charter in accordance with the Work
Schedule as set out in Appendix 3.
Foramer shall carry out the assistance according to its own methods in so
far as they shall comply with the terms of the Charter, without prejudice to
Foramer s right to inspect, supervise and give instruction.
2. All services shall be provided with personnel of a standard approved by
Formaritima, Foramer shall remove and replace within the shortest possible
time any member of the PERSONNEL, after having been requested to do so by
Formaritima if, in the opinion of Formaritima, such member is negligent,
incompetent or unable to work or is working and/or behaving in an
unacceptable manner at the work-site. Consecutive replacement extra cost
will be for Foramer's account.
Foramer will furnish other services to Formaritima such as but not limited
to:
(a) Support in provision of non-local insurance and settling of non-local
insurance disputes.
(b) International freight forwarding.
(c) Marketing advice and services.
(d) International procurement services.
(e) Head office technical assistance and support in France to the operation of
the Rig.
(f) Provision of monthly budgets on a semi-annual basis. Reconciliation of
actual US/FF monthly costs against monthly budgets proposed in a format
required by Formaritima General Manager.
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APPENDIX 2
POSITIONS OF PERSONNEL
ONSHORE: Manager
Rig Manager
OFFSHORE Site Manager
Toolpusher
Nightpusher
Driller
Asst. Driller
Chief Engineer
Chief Electrician
Asst. Chief Electrician
Chief Mechanic
BOP Engineer
Electronician
Bosun
Materials Man
___________
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APPENDIX 3
WORK SCHEDULE OF PERSONNEL
ONSHORE: 10 months work / 2 months leave or
5 months work / 1 month leave
Offshore: 4 weeks on / 4 weeks off.
12 hour shifts.
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APPENDIX 4
PRICE OF PERSONNEL SUPPLIED BY FORAMER TO FORMARITIMA
ONSHORE US$/DAY
General Manager 650.00
Rig Manager 536.00
OFFSHORE US$/DAY ONLY
Site Manager 756.00
Tool Pusher 678.00
Night Pusher 539.00
Driller 409.00
Assistant Driller 361.00
Chief Engineer 688.00
Chief Mechanic 518.00
Chief Electrician 514.00
BOP Engineer 518.00
Electronic Technician 620.00
Hydraulic Technician 375.00
Materials Man 432.00
Bosun 452.00
Captain 600.00
DP Operator 462.00
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Prices include salaries all overhead and allowances, French social charges,
medical cares, training, travel allowances.
Prices are exclusive of travel and accommodation related costs between the point
of origin and rig-site.
Prices are exclusive of any taxes in Brazil.
Prices are of an indicative nature only based on rates at 01/01/98 and shall be
revised annually based on actual market costs of personnel.
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