EXHIBIT 10.57
FORMARITIMA LTD
- AND -
WORKSHIPS CONTRACTORS B.V.
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AMETHYST 7 MARINE AND NAUTICAL SERVICES AGREEMENT
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THIS AGREEMENT is made as of the 5th day of November 1998,
BETWEEN:
1. FORMARITIMA LTD, a company incorporated in the British Virgin Islands and
having its principal office at c/o Arias, Fabrega & Fabrega Trust Co., Omar
Hodge Building, Wickham s Cay, Road Town, Tortola, British Virgin Islands
(hereinafter referred to as "Formaritima"); and
2. WORKSHIPS CONTRACTORS B.V., a company incorporated in the Netherlands having
its principal office at K.P. van der Mandelelaan 34, 3062 MB Rotterdam
(hereinafter referred to as "the Manager").
Formaritima and the Manager are hereinafter also referred to individually as
"Party" and collectively as "Parties".
WHEREAS:
A. Formaritima will be the direct or indirect legal owner of a dynamically
positioned semi-submersible drilling vessel (each hereinafter called "the
Vessel") and intends to carry out worldwide offshore drilling operations
using the Vessel, subsequent to its Delivery to Formaritima.
B. The Manager possesses the know-how and skilled personnel to enable it to
manage the Marine and Nautical operation and maintenance of the Vessel.
C. The Manager will support and render services relevant to the mobilization of
the Vessel to Brazil and operations pursuant to assigned charter agreement
between Petroleo Brasileiro S.A. (hereinafter referred to as "Petrobras")
and Maritima as novated and assigned to Formaritima (together the "Charter
Agreements").
D. Manager has been provided with a copy of the aforesaid Charter Agreements.
E. Formaritima is desirous of contracting with the Manager for the provision of
the services in accordance with the terms and conditions set out herein.
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. TERMS OF AGREEMENT
2.1 This Agreement shall take effect from the date hereof and shall continue
unless terminated pursuant to the provisions of Clause 7.
2.2 The effective performance of this Agreement shall include without limitation
the preparations in Brazil prior to the commencement of the Charters and the
assistance to demobilize upon termination of the Charters and the resolution
of any outstanding unresolved contractual issues at the end of the Charters.
3. COMMENCEMENT AND PERFORMANCE
3.1 The Parties acknowledge as at the date of signing of this Agreement that the
Vessel is to be constructed. Formaritima undertakes to provide the Manager
with copies of all relevant documentation in respect of the Vessel in the
English language, including detailed drilling equipment lists.
3.2 This Agreement shall commence with respect to the Vessel prior to
commencement of the sea trials under the relevant Construction and Sale
Contracts.
3.3 The Manager will furnish the relevant personnel and services to assist
during the sea trials.
3.4 The Manager shall at all times maintain proper and adequate office and
technical facilities and a competent and sufficient staff for the
performance of its duties, and shall, on behalf of Formaritima and at
Formaritima s risk and expense, manage and maintain the Vessel in accordance
with good marine practice, efficiently and economically, to the best of its
professional ability in regard to performance, safety and shipshape
appearance, and will arrange, at all times, technical supervision to ensure
that the Vessel is kept in a seaworthy condition and with valid
certificates.
3.5 Notwithstanding the foregoing, Formaritima has, subject only to the
provisions of Clause 6, ultimate and complete responsibility for the Vessel
and shall indemnify the Manager in accordance with Clause 6.
4. OPERATIONAL DUTIES AND RESPONSIBILITIES OF THE MANAGER
The object of this Agreement is the supply of by the Manager to Formaritima of
services with respect to the Rig including, but not limited to, those specified
in Appendix 1 to this Agreement.
4.1 MANAGER S PERSONNEL
4.1.1 The Manager shall provide a sufficient number of relevantly qualified
personnel in order to ensure that the marine operations of the Vessel
is at all times undertaken safely and in accordance with good industry
practice and in compliance with the lawful and proper instructions of
any client contracting for use of the services of the Vessel and in
accordance with the contract with such client and any regulations from
relevant regulatory bodies, authorities or Classification Societies
and in particular compliance with ISM code.
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4.1.2 The Manager shall ensure at all times that it has an adequate pool of
qualified personnel available to cover vacancies due to leave
requirements, sickness, injury, replacement of personnel as
contemplated by the provisions of Clause 4.1.3 or for any other reason
whatsoever.
4.1.3 Should Formaritima be dissatisfied with the performance of any of the
personnel provided by the Manager, Formaritima shall notify the
Manager thereof, stating the reasons for its dissatisfaction. Should
the cause of Formaritima s dissatisfaction remain unremedied for a
period of twenty days from the giving of Formaritima s said notice,
Formaritima shall have the right to request the replacement of the
personnel concerned and in such event the Manager shall, as soon as
practicable thereafter, replace the personnel concerned.
4.1.4 The Manager shall:
(a) keep Formaritima fully informed regarding incidents which give
or could give rise to claims by or against third parties
including damage to the Vessel or serious sickness of personnel;
and
(b) use all reasonable endeavours to protect Formaritima s interests
with respect to marine claims by or against third parties,
including personnel employed aboard the Vessel.
4.1.5 Formaritima has entered into a contract with Formaritima Ltd. for the
provision of Technical Management Services to the Vessel.
4.1.6 No personnel of the Manager shall be deemed to be employees, either
temporary or permanent, of Formaritima and shall at all times be
deemed employed by the Manager.
The Manager shall have the sole responsibility for the preparation of
payroll and the payment of Manager 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 upon the regulations for employing Dutch
personnel or any of Manager personnel, an 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 each Charter
terminates. The Manager shall be liable for and agrees to protect,
defend and hold Formaritima harmless from and against any lawsuit or
claim of any kind whatsoever which may arise as a consequence of or
related to the payment of these charges.
Both Parties agree to refrain from any and all actions, direct or
indirect, that may lead to employment by such Party of an employee of
the other Party, unless such Party obtains the prior written approval
of the other Party, which approval shall not unreasonably be withheld.
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4.2 MARINE EQUIPMENT MAINTENANCE
4.2.1 The Manager shall arrange for the marine operation of the Vessel and
all marine equipment used on or from the Vessel.
4.2.2 The Manager is authorised to act, on behalf of Formaritima , in
respect of all matters that may pertain to the everyday operation of
the marine services. Notwithstanding the foregoing, where in
connection with such operation, the Manager will or is likely to incur
expenditure not contemplated by or greater than the amount specified
in respect thereof in any budget as is referred to in Clause 4.5.2 and
where any such expenditure will or is likely to exceed US$50,000 or,
in any calendar month, sums which, in the aggregate, are in excess of
US$50,000, the Manager shall, prior to incurring such expenditure,
obtain the consent of Formaritima so to do. Nevertheless the Manager
shall, in any case where, in its reasonable opinion, it is necessary
to take immediate action to avert danger to life or health or loss or
damage to any Vessel or other property of Formaritima , be entitled
and obligated to take such action without the prior consent of
Formaritima but, in every such case, the Manager shall promptly notify
Formaritima of the action so taken by it and of the amount of
expenditure incurred by it in so doing.
4.2.3 Subject to Clauses 4.2.2 and 4.4.3 the Manager shall procure the
supply of all equipment and materials required in connection with the
marine operation and maintenance of the Vessel including an adequate
supply of spare parts, stock for stores, and generally so as to ensure
that the Manager will at all times be able to fulfil its obligations
hereunder.
The Manager will use its best endeavours to ensure that materials and
equipment procured by it are purchased on the most economical terms
available, as to price and payment, and having regard to the quality
and availability of the materials and equipment concerned.
4.2.4 The Manager shall provide for technical supervision, repairs,
classification, customary maintenance and, in all other respects, use
its best endeavours so that, at all times and subject to the
provisions of Clauses 4.5.2 and 4.5.3, the Vessel is kept duly
seaworthy, and maintain its certificates and permissions for maritime
operations all in accordance with good oil industry practice. Minimum
personnel will be maintained during periods of lay up in order to
minimise cost to Formaritima.
4.2.5 Formaritima s representatives shall be entitled to board the Vessel
for the purpose of examining the Vessel and its operations subject, at
all times, to the consent of the client where applicable.
4.2.6 The Manager will not by act or omission of the Manager cause
Formaritima to be in breach of any provision of the mortgage
registered over the Vessel and has been provided with a copy of said
mortgage, and will provide such confirmation as may be reasonably
required by the Lenders.
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4.3 INSURANCE
4.3.1 Formaritima shall ensure and provide that the Vessel and all
consumable materials and equipment thereof and the Manager s and
Formaritima s employees are at all times adequately insured with
reputable underwriters on the best possible terms. Formaritima shall
ensure that such insurance shall be fully in compliance with the
requirements of the holder of any mortgage on the Vessel. Subject to
the foregoing, the following minimum insurance coverage will be
maintained by Formaritima at all times:
(a) All Risks Hull and Machinery Insurance (including underwater and
in-hole equipment) against marine and war risks, to the full
market value of each Vessel; and
(b) Full Protection and Indemnity Insurance, or equivalent, in
respect of liabilities of Formaritima and/or the Manager to
third parties including but not limited to pollution or
contamination, removal of wreck and recovery of equipment lost
overboard.
4.3.2 The insurance effected on behalf of Formaritima and Manager shall be
endorsed with a statement that each is co-assured and that the
underwriters waive their rights of subrogation and/or recourse,
whether express or implied, against the other party and/or its
subcontractor and against any party designated in writing by such
party with whom the such party has entered into a hold harmless
agreement or otherwise in respect of a Vessel and operations involving
such Vessel. This Agreement shall be copied by such party to the
relevant underwriters and their written approval that the indemnities
herein contained are acceptable as being normal in the oil industry
shall be obtained by each party.
4.3.3 The Manager undertakes that it will take out and maintain all
insurance policies to cover its liabilities as set forth in Clause 6
of this Agreement and as required of Formaritima under the terms of
the Charter, 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 Brazil.
(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 Manager is responsible.
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4.3.4 GENERAL PROVISIONS
For all insurance policies taken out:
(a) Manager shall comply with the insurance regulations in force in
Brazil.
(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 Clause 8 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 8 of this Agreement.
(e) Manager shall, on request by Formaritima , furnish copies of
the insurance policies it is bound to take out
4.4 ADMINISTRATION AND ACCOUNTS
4.4.1 The Manager will prepare and submit to Formaritima at least sixty
days prior to the commencement of marine operations a budget of marine
related expenditures for the period of twelve calendar months
following that commencement. At least sixty days prior to each
anniversary of the date of aforesaid commencement, the Manager shall
prepare and submit to Formaritima a budget of operating income and
expenditure and any contemplated capital expenditure, for the
following twelve months.
Each budget shall contain sufficient detail of likely expenditure as
will enable Formaritima to check actual costs when they are incurred
against estimates. All assumptions shall be clearly stated. The
budgets shall be subject to Formaritima s approval but when approved,
Formaritima shall promptly notify the Manager thereof. Formaritima
will provide details of costs in respect of personnel and any other
services to be provided by Formaritima.
4.4.2 Quarterly reports and accounts shall be presented to Formaritima as
soon as reasonably possible after the end of each three month period
following the commence of operations but no later than 40 calendar
days after the end of such period.
The quarterly report shall contain the following:
Major repairs/capital investments. The accounts/financial reports
shall contain the following in a format to be mutually acceptable to
both Parties, Formaritima from time to time to provide the Manager
with a copy of its preferred format:
Quarterly actual and year to date costs compared with the
budget;
Description/analysis of variances actual/budget;
Cash flow/fund requirements;
Estimates for the year.
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4.4.3 Subject to the provisions of Clause 4.2.2 the Manager shall utilize
funds credited to or standing in the Disbursement Account (defined in
Clause 4.4.4 to meet the following expenses and disbursements, inter
alia, the Operating Costs:
- Cost of Manager provided personnel;
- Travel costs for Manager provided personnel;
- Purchases of materials, supplies, equipment, parts and storage,
transport and assembling thereof, and cost of subcontractors in
connection with specific marine related assignments;
- Expenses incurred for keeping the Vessel in compliance with
certification and classification requirements. This will apply
for annual surveys only. Expenses for Special Periodic surveys
are not included in Operating Costs but will be shown in each
relevant budget submitted under the provisions of this
Agreement;
- Professional services for all analysis or technical assistance
required to the extent that such services qualitatively cannot
be performed by the Manager or the Manager s own employees;
- Direct Internal Quality and Safety audit costs when
carried out on board the Vessel;
- Customs duties, corporate taxes, withholding taxes, and other
taxes of whatsoever nature arising solely from contracts entered
into in respect of the Vessel and levied in jurisdictions where
the Vessel are located from time to time and/or in connection
with this Agreement;
- All other reasonable expenses and costs of similar nature which
are budgeted and such other reasonable costs and expenses that
the Manager in its discretion considers to be necessary to
ensure the safety of the personnel on the Vessel itself, as well
as mitigation of non-performance under the Charter subject to a
limitation of US$250,000; and
- Insurance costs including deductibles.
4.4.4 The Manager shall be required, pursuant to its duties under this
Agreement, to open and keep a separate bank account in the name of
Formaritima (the "Disbursement Account") and books, records and
accounts relating to the marine management of the operation and marine
maintenance of the Vessel in accordance with internationally accepted
applicable accounting principles and in the English language. All such
books, records, accounts and other related documents mentioned above
shall be available to Formaritima or its appointees for inspection at
all reasonable times. In addition to the reports referred to in Clause
2.4.3 the Manager shall furnish to Formaritima all information
(financial or otherwise) reasonably required throughout the year by
Formaritima for its own accounts or audits and any assistance required
to be given to its auditors.
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4.5 BANK ACCOUNTS AND FLOW OF FUNDS
Subject always to such other instructions as Formaritima may give to the
Manager pursuant to arrangement with the holder of the mortgage over the
Vessel, or otherwise:
4.5.1 Formaritima undertakes to transfer a sum of US$500,000 for the Vessel
(the "minimum working capital") into the Disbursement Account within
30 days prior to commencement of the services by the Manager under
this Agreement with respect to the Vessel.
4.5.2 The Manager will provide Formaritima not less than seven working days
prior to the end of each month with a statement of its working capital
requirements in respect of the Vessel and the Manager s obligations
hereunder for the next month.
If the funds received from the Vessel s operations are insufficient at
any time to meet the Manager s costs, as listed under 4.4.4 and 5 or
any other expenditure rightfully incurred, the Manager shall notify
Formaritima of its cash requirements by giving at least ten (10)
working days notice.
Formaritima is obliged, at all times, to ensure that the Managers
request for adequate working capital is met within the said notice
period of ten (10) working days and to maintain that the minimum
working capital balance is maintained in the Disbursement Account.
4.5.3 Any funds credited to the Disbursement Account in excess of necessary
working capital to meet expenses listed under Clauses 2.4.3 and 3
shall be promptly paid over to such account as Formaritima may specify
from to time unless Formaritima requests the Manager to temporarily
administer such spare funds in consultation with Formaritima .
4.5.4 The Manager will provide Formaritima on a monthly basis with copies of
all Disbursement Account statements.
4.5.5 Any interest earned/or payable in respect of the Disbursement Account
shall be for the credit of the Disbursement Account.
4.5.6 Under no circumstances shall the Manager, without the prior written
approval of Formaritima (which approval may be withheld at
Formaritima s sole discretion), be entitled to borrow funds or enter
into any agreement to borrow funds in such a manner as to bind
Formaritima PROVIDED ALWAYS that a requirement for funds to meet a
safety obligation shall supersede this provision.
5. MANAGEMENT FEE
5.1 With effect from start of pre-delivery sea trials of the Vessel the Manager
shall be paid a fee (the "Fee") of US$1,250 per day for the Vessel for the
duration of this Agreement. The Fee shall be paid against invoice to
Formaritima such invoice to be rendered by the tenth day of the month
following the month in which the Fee was earned.
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5.2 In the event of a sale of the Vessel and termination of this Agreement
pursuant to Clause 7.4 and the purchaser not accepting an assignment of the
rights and obligations of Formaritima under this Agreement, the Fee shall be
deemed earned by the Manager and shall be paid as compensation to the
Manager in respect of the aggregate number of days of management fee lost in
respect of the Vessel each day between date of sale and the final day of the
firm term of the Charter Agreement discounted at ten per cent (10%) per
annum.
5.3 In the case of a disputed invoice, Formaritima will advise the Manager 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.
5.4 Payments shall be made to a Bank account nominated on each invoice.
6. INDEMNITIES
6.1 Except to the extent that the Manager would be liable under Clause 5.2,
Formaritima hereby undertakes to keep the Manager indemnified and to hold
the Manager harmless against all actions, proceedings, claims, demands or
liabilities whatsoever which may be brought against or incurred by the
Manager in relation to any act or thing done or caused to be done as
aforesaid, and against all costs, damages and expenses which the Manager may
suffer or incur in defending or settling the same.
6.2 Subject to Clause 6.4 below, Formaritima indemnifies and holds harmless the
Manager against all liability whatsoever, whether in law, tort or in
contract or otherwise, and Formaritima shall be solely liable for any
damage, loss or claim of whatsoever nature and howsoever arising, whether
relating to the Vessel, their hirers and users (including, without prejudice
to the generality of the foregoing, for damage to or loss of property,
including the Vessel, and all direct and consequential loss) unless the same
is proved to have resulted solely from the gross negligence or wilful
default of the Manager, its employees, agents or subcontractors in which
case the Manager s liability during any one year of the term of this
Agreement shall not exceed the aggregate of the Fee received by the Manager
in the preceding twelve months.
6.3 The Manager shall be under no liability whatsoever in respect of any
consequential loss (including without prejudice to the generality of the
foregoing liability due to detention of or delay of the Vessel or otherwise)
arising out of or in connection with the management and/or operation of the
Vessel.
6.4 Liabilities Between the Parties
6.4.1 The Manager 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
Manager s Group;
(ii) loss of or damage to the property of the Manager s Group;
(iii) any consequential or economic loss or damage suffered by the
Manager s Group;
howsoever arising and irrespective of negligence or other breach of
legal duty by Formaritima s Group.
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6.4.2 Formaritima shall hold harmless and indemnify the Manager 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
Formaritima s Group;
(ii) loss of or damage to the property of Formaritima s Group; and
(iii) any consequential or economic loss or damage suffered by
Formaritima s Group;
howsoever arising and irrespective of negligence or other breach of
legal duty by the Manager s Group.
6.4.3 For the purposes of this Clause 6.4, Liabilities Between the Parties,
"Formaritima s Group" means Formaritima, its associated companies,
its other subcontractors and suppliers, Petrobras, and the officers,
employees and agents of any of them.
6.4.4 For the purposes of this Clause 6.4, Liabilities Between the Parties,
"the Manager s Group" means the Manager, its associated companies, its
subcontractors and suppliers and the officers, employees and agents of
any of them.
6.4.5 For the express purposes of Clause 6.4, Liabilities Between the
Parties, 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
Formaritima s Group and all such persons shall to this extent be
deemed to be parties to this Agreement.
6.4.6 For the express purposes of Clause 6.4, Liabilities Between the
Parties, of this Agreement only, The Manager 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
Manager s Group and all such persons shall to this extent be deemed to
be parties to this Agreement.
6.5 INDEMNITY FOR OPERATIONS
Save as is provided in Article 6.4 above, Liabilities Between the Parties,
Formaritima shall indemnify and hold harmless the Manager from and against
all actions, proceedings, claims, demands or liabilities whatsoever that may
be brought by any other person against, or incurred by the Manager in
relation to or in connection with its performance of this Agreement unless
same has arisen from the gross negligence or wilful misconduct of the
Manager, in which event the liability of the Manager shall be limited to the
aggregate of the management fee received by the Manager in the preceding 12
months.
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7. TERMINATION
7.1 Formaritima may terminate this Agreement at any time if:
7.1.1 Formaritima is dissatisfied, with sound reasons, with the performance
of the Manager because of incompetence of the Manager or
unsatisfactory performance of its duties and obligations hereunder the
Manager s control, and the Manager, after having been given, by
Formaritima , written notice in which Formaritima shall have specified
in detail the grounds for its dissatisfaction, shall fail to take
effective steps to remedy the matters complained of within thirty days
after the giving of the said written notice, Formaritima shall have
the right to terminate this Agreement effective thirty (30) days after
a date specified by Formaritima without any further compensation to
the Manager other than any money due and owing at the date this
Agreement is to terminate.
7.1.2 The Manager shall go into liquidation (otherwise than voluntarily for
the purpose of reorganisation or reconstruction), make an assignment
for the benefit of creditors, make an arrangement, composition or
compromise with its creditors or have a receiver or administrator
appointed in respect of the whole or any part of its assets or shall
otherwise be unable to pay its debts as and when they become due.
7.1.3 The Manager ceases to carry on its business.
7.2 This Agreement shall be terminated with respect to the Vessel in the event
of the actual or constructive or compromised or arranged total loss or
requisition for title of the Vessel on the date four months after such total
loss occurs or is agreed with insurance underwriters (as the case may be, or
such other date as may be agreed).
7.3 (a) In the event of the termination of this Agreement pursuant to Clause 7.1
or Clause 7.2, Formaritima shall pay to the Manager all such amounts to
which the Manager may be entitled pursuant to the provisions of Clause 5.1
as and when such amounts fall due for payment;
(b) In addition, Formaritima shall pay such amounts (if any) as the Manager
(notwithstanding the Manager s best efforts to minimise the effects to any
such termination) may become legally liable to pay under any contract of
employment or by reason of any regulation or legislation for employee
protection to personnel who may have been employed by the Manager or its
group companies on the Vessel to perform any part of the services to be
provided under this Agreement and who shall become redundant as a result of
such termination. Formaritima s exposure under this Clause 7.2.2 is limited
to a maximum of three months salary per employee in the employ of the
Manager at the time of receipt of notice of termination. Formaritima is only
responsible for any redundancy payments or equivalent for the period of time
the Manager s personnel have been employed on the Vessel from the date of
this Agreement and provided timely notice is issued to all affected
personnel, Manager shall make its best efforts to assist and support
Formaritima or Formaritima s nominee in procuring the services of such
employees or sub-contractors as Formaritima may wish to employ.
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7.4 If the Vessel is sold, Formaritima shall be entitled to terminate this
Agreement by giving notice to the Manager, such notice to expire on such date as
Formaritima may specify.
7.5 If Formaritima fails to pay the remuneration payable to the Manager within
thirty (30) days of the due date, the Manager may at any time thereafter
terminate this Agreement by thirty calendar days prior written notice to
Formaritima.
In the event that Formaritima fails to make payment on due date to the Manager
of any moneys owing to the Manager under this Agreement, Formaritima agrees that
the amount unpaid for the time being shall bear interest at a rate of two
percentage point units above the three months LIBOR rate as quoted in the
Financial Times on the due date.
7.6 Termination of this Agreement under any circumstances shall be without
prejudice to any outstanding claims hereunder which either Formaritima or the
Manager may have against the other.
7.7 Upon any termination of this Agreement with respect to the Vessel, the
Manager shall use its best endeavours to assist in a smooth transfer of the
Vessel to any new manager and/or Formaritima .
8. ASSIGNMENT AND SUBCONTRACTING
8.1 The rights and obligations of a Party hereunder may not be assigned without
the prior written consent of the other Party (such consent not to be
unreasonably withheld).
8.2 Either Party may however assign such rights to any subsidiary, affiliate or
other group company designated by it PROVIDED THAT such Party effecting the
assignment shall remain responsible for the proper performance of this
Agreement.
8.3 The Manager may with the approval of Formaritima , wherever necessary,
engage subcontractors on an arms length basis for the performance of specific
assignments, without thereby in any way being relieved of its responsibility for
the performance, administration and direction of these services. The indemnity
as contained in 6 above shall, as between Formaritima and the Manager, apply in
respect of actions or omissions of aforesaid sub-contractors and may be passed
on to the sub-contractor in the discretion of the Manager.
9. TAXES
Any taxes or charges applied by local authorities in the Netherlands or the
Netherlands Antilles shall be for the Manager s account.
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10. FORCE MAJEURE
10.1 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 similar to the matters herein specifically enumerated and
provided that the event shall not have been caused by the action or
negligence of either of the Parties, and that the Party and/or the Parties
affected shall do its, or their, utmost to remedy the above circumstances.
10.2 Any Party claiming force majeure shall promptly notify the other Party,
with the evidence of the occurrence of such event.
10.3 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.
10.4 Notwithstanding the foregoing to the extent that the event claimed as force
majeure impacts upon or would impact upon the performance of any Charter
Agreement, such event must be recognised as a force majeure event in terms
of such Charter Agreement before it can qualify as a force majeure event
hereunder.
11. LAW AND ARBITRATION
11.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of England.
11.2 Any dispute or difference arising in connection with this Agreement shall
if possible be settled by mutual amicable agreement.
11.3 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 Arbitrator the dispute shall be
settled by three Arbitrators, each Party appointing one Arbitrator, the
third being appointed by the Chairman of the London Maritime Arbitrators
Association.
11.4 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.
11.5 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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11.6 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.
11.7 Performance under this Agreement shall, if reasonably possible, continue
during the Arbitration proceedings.
12. CONFIDENTIAL INFORMATION
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 the
Manager to any third party without the prior written consent of Formaritima .
The hereinabove obligations shall survive termination of this Agreement and
shall remain in force for so long as the information covered by confidentiality
has not otherwise become public knowledge.
13. NOTICES
13.1 All communications and notices in relation to this Agreement and
obligations to be performed hereunder shall be in writing and delivered by
fax or by hand and if given to Formaritima addressed to:
with a copy to:
FORMARITIMA LTD WESTVILLE MANAGEMENT
c/o Arias, Fabrega & Fabrega CORPORATION
Omar Hodge Building President
Wickham's Cay 5847 San Felipe, Suite 3300
Road Town, Tortola Houston, Texas 77057
British Virgin Islands
Fax: (284) 494 4980 Fax: (713) 914-9796
and if given to the Manager addressed to:
WORKSHIPS CONTRACTORS B.V.
K.P. van der Mandelelaan 34
3062 MB Rotterdam (Brainpark)
The Netherlands
Fax: 31 10 452 81 76
13.2 Either Party may give reasonable notice to the other Parties of any change
of address at any time.
13.3 A notice by fax shall be deemed to have been received at the time of
dispatch provided that if the day of dispatch is not a Working Day in the
country of the addressee or if the time of dispatch is after close of
business in the country of the addressee, it shall be deemed to have been
received at the opening of business on the next such Working Day.
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14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties hereto and
supersedes all prior negotiations, representations or agreements relating
directly to the subject matter of this Agreement whether written or oral. No
changes, alterations or modifications to this Agreement shall be affected unless
in writing and signed by the Parties hereto.
IN WITNESS WHEREOF the Parties have signed this Agreement the day and year first
above written.
SIGNED by ) /s/ GERMAN EFROMOVICH
for and on behalf of )
FORMARITIMA LTD )
in the presence of: ) /s/ MARCELO VIOLLAND
SIGNED by ) /s/ Illegible
for and on behalf of )
WORKSHIPS CONTRACTORS B.V. )
in the presence of: ) /s/ Illegible
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APPENDIX 1
SCOPE OF SERVICES PROVIDED BY THE MANAGER
- - - Marine Operations and Technical Support
- - - Logistics
- - - Marine and Technical Personnel (as per the personnel and payment schedule
attached as Appendix 2).
- - - Local base personnel for Marine Operations and Technical Support at
industry standard dayrates
- - - Liaison with Marine subcontractors and suppliers
- - - Purchase of parts, services and supplies.
- - - Procurement of Visas, work permit applications and formalities.
- - - Assistance and advice to minimise the impact of customs duties and
import taxes.
- - - Assistance in providing Vessel insurances and settling claims
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APPENDIX 2
PERSONNEL AND RATES
FUNCTIONS TO BE
TECHNICAL CREW US$ PER DAY SUPPLIED ON BOARD (*)
- - -------------- ----------- ---------------------
Chief Engineer 605 1
2nd Engineer 503 1
3rd Engineer 455 2
4th Engineer 412 2
Electrical Supervision 465 1
Assistant or Rig Electrician 267 1
Electronic Engineer 329 1
Rig Mechanic 467 1
MARINE CREW
- - -----------
Captain 615 1
Chief Mate 545 1
DP Operator 435 2
Warehouse Man 431 1
Crane Operator 375 1
The above dayrates are payable for each day worked on the vessel, based on a
28/28 rata.
Dayrates are inclusive of salaries, overheads and allowances, costs related to
social security and medical care.
Dayrates are exclusive of travel and accommodation related costs between the
point of origin and rig site, visa costs and personnel taxes which are or may
become applicable in Brazil. In case of delays in Brazil, all related costs
including dayrate are for Formaritima s account.
Dayrates are exclusive of any taxes in Brazil.
Dayrates are at cost and of an indicative nature only based on rates at 01/01/98
and shall be revised annually based on actual market costs of personnel.
o The positions on board could be changed at the request of Formaritima at its
discretion, with at least three months notice for replacement of the same.
This should not result in an unreasonable crewing functions mixture.
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