EXHIBIT 4.12
DATED 19 December 1998
PRIDE INTERNATIONAL INC. and
MARITIMA PETROLEO E ENGENHARIA LTDA
as Sponsors
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PETRO DIA THREE SA AND PETRO DIA FOUR SA
as Beneficiaries
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FLOOR GUARANTEE
relating to the Loan Agreements
in respect of "Amethyst 6" and "Amethyst 7"
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F I E L D - F I S H E R - W A T E R H O U S E
4 1 V I N E S T R E E T L O N D O N E C 3 N 2 A A
INDEX
CLAUSE/HEADING PAGE
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1. DEFINITIONS AND INTERPRETATION 2
2. FLOOR GUARANTEE AND UNDERTAKING 4
3. PRESERVATION OF OBLIGATIONS 5
4. PAYMENTS 8
5. TAXATION 8
6. REPRESENTATIONS AND WARRANTIES 9
7. CURRENCY INDEMNITY 10
8. DELEGATION, ASSIGNMENT 10
9. NOTICES, ETC. 11
10. COUNTERPARTS 12
11. WAIVER; REMEDIES CUMULATIVE 12
12. LANGUAGE 12
13. SEVERABILITY 12
14. GOVERNING LAW AND JURISDICTION 12
THIS DEED is made on 19 December 1998 BETWEEN:-
(1) PRIDE INTERNATIONAL INC,. a company incorporated under the laws of the
State of Louisiana, USA, of 5847 San Felipe, Suite 3300, Houston, Texas
77057, USA ("PRIDE") and MARITIMA PETROLEO E ENGENHARIA LTDA., a company
incorporated under the laws of Brazil, of Avenida Almirante Barroso 52,
Gr. 3400, 2031-000 Rio de Janeiro, Brazil ("MARITIMA") (together, the
"SPONSORS" and, individually, a "SPONSOR"); and
(2) PETRO DIA THREE SA a company duly organised and existing under the laws of
the Republic of Panama whose registered office is at 53rd Street
Urbanizacion Obarrio Torre Swiss Bank, 16th Floor, Panama City, Republic
of Panama and PETRO DIA FOUR SA a company duly organised and existing
under the laws of the Republic of Panama whose registered office is at
53rd Street Urbanizacion Obarrio Torre Swiss Bank, 16th Floor, Panama
City, Republic of Panama (together the "Beneficiaries" and individually a
"BENEFICIARY").
WHEREAS:
(A) By a loan agreement (as amended or supplemented from time to time, the
"LOAN AGREEMENT") of even date herewith and made between the Beneficiaries
(1), the Borrower (2), the Facility Agent (3) and the Security Agent (4),
the Beneficiaries have agreed, upon and subject to the terms and
conditions of the Loan Agreement, to make available to the Borrower loan
facilities not exceeding US$160,000,000 for the purposes therein
specified.
(B) By a further loan agreement (the "SISTER COMPANY LOAN AGREEMENT") dated
the same date as the Loan Agreement and made between the Beneficiaries
(1), the Sister Company (2), the Facility Agent (3) and the Security Agent
(4), the Beneficiaries have agreed to make available to the Sister Company
upon and subject to the terms and conditions of the Sister Company Loan
Agreement loan facilities not exceeding US$180,000,000 for the purposes
therein specified.
(C) The Sponsors have agreed to execute and deliver this Deed to the
Beneficiaries as two of the Lenders in consideration of the Beneficiaries,
at the Sponsors' request, entering into the Loan Agreement and the Sister
Company Loan Agreement and making or continuing loans or advances to, or
otherwise giving credit or granting accommodation or granting time to, the
Borrowers as defined in and pursuant to the Loan Agreement and/or the
Sister Company Loan Agreement.
(D) It is the parties' intention that this Deed shall be held by the
Beneficiaries as security for the Guaranteed Obligations in addition to
and separately from any other security therefor held by the Security
Agent for the benefit of the Secured Parties, it being recognised that
the obligations of the Borrower and of the Sister Company under the
Loan Agreement and the Sister Company Loan Agreement respectively
constitute separate and independent debts thereunder in favour of the
Beneficiaries as Lenders.
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IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed the following words and expressions shall, except where the
context otherwise requires, have the following meanings:
"ADVANCE" means any Advance as defined in the Loan Agreement or in the
Sister Company Loan Agreement;
"AGENTS" means the Facility Agent and the Security Agent and "AGENT"
means either or any of them as the context requires;
"BANKING DAY" shall bear the meaning ascribed to it in the Loan
Agreements;
"BENEFICIARIES" means each of the Beneficiaries specified on page one of
this Deed and their respective successors in title and transferees to the
extent only that such Beneficiary expressly transfers or assigns the
benefit of this Deed to such successor in title and transferee in
accordance with Clause 8 (to the intent that no Lender other than the
Beneficiaries shall be entitled to the benefit of this Deed other than as
a successor in title and transferee of either Beneficiary as aforesaid);
"BORROWER" means Petrodrill Six Limited, a company incorporated under the
laws of the British Virgin Islands, of Arias Fabrega and Fabrega Trust Co;
BVI Limited, 325 Waterfront Drive, Omar Hodge Building, 2nd Floor,
Wickham's Cay, Road Town, Tortola, British Virgin Islands;
"COMMITMENT" means any Commitment as defined in and for the purpose of
the Loan Agreement or the Sister Company Loan Agreement;
"DRAWDOWN NOTICE" means any Drawdown Notice as defined in the Loan
Agreement and in the Sister Company Loan Agreement;
"FACILITY AGENT" means Mitsubishi Corporation (UK) PLC in its capacity as
facility agent for the Lenders under each of the Loan Agreement and the
Sister Company Loan Agreement and includes any successor facility agent or
agents appointed under the Loan Agreement and the Sister Company Loan
Agreement or either of them;
"FINANCING DOCUMENTS" means the Loan Agreement and the Sister Company Loan
Agreement and the Security Documents and "FINANCING DOCUMENT" means any of
them;
"GUARANTEED OBLIGATIONS" is defined in Clause 2.1;
"LENDERS" means each of the Lenders specified in Schedule 1 of the Loan
Agreement and/or of the Sister Company Loan Agreement and their respective
successors in title and transferees under the Loan Agreement and/or of the
Sister Company Loan Agreement;
"OUTSTANDINGS" means any Outstandings as defined in the Loan Agreement
or in the Sister Company Loan Agreement;
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"PROJECT DOCUMENTS" means the documents listed in Schedule 7 Part 1 of the
Loan Agreement and in Schedule 7 part 1 of the Sister Company Loan
Agreement;
"RECEIVER" means a receiver and/or manager (and, as the context so admits,
shall include an administrative receiver) or any similar person or officer
appointed by the Security Agent pursuant to any Security Document;
"REPAYMENT DATE" means any Repayment Date as defined in and for the
purpose of each of the Loan Agreement and the Sister Company Loan
Agreement;
"SECURITY DOCUMENTS" means [this Deed and] the agreements, mortgages,
deeds and other documents specified in Schedule 7 Part 2 of the Loan
Agreement and/or the Sister Company Loan Agreement and any other documents
(including, as the context may require the Loan Agreement and the Sister
Company Loan Agreement) that may now or hereafter be included in the term
"Security Documents" as that term is defined in either of the Loan
Agreements or the Sister Company Loan Agreement;
"SECURITY AGENT" means Mitsubishi Corporation (UK) PLC in its capacity as
security trustee and agent under the Security Trust Deed and includes any
successor security trustee and agent appointed under the terms thereof;
"SECURITY PERIOD" means whichever of the later to expire of the Security
Period under the Loan Agreement or under the Sister Company Loan Agreement
(as the term "SECURITY PERIOD" is respectively defined therein);
"SECURITY TRUST DEED" has the meaning ascribed to it in the Loan
Agreement and the Sister Company Loan Agreement;
"SEVERAL PROPORTIONS" means:
(i) in relation to Pride, 30%; and
(ii) in relation to Maritima, 70%;
"SISTER COMPANY" means Petrodrill Seven Limited, a company incorporated
under the laws of the British Virgin Islands, of Arias Fabrega and Fabrega
Trust Co; BVI Limited, 325 Waterfront Drive, Omar Hodge Building, 2nd
Floor, Wickham's Cay, Road Town, Tortola, British Virgin Islands; and
"TAXES" means any Taxes as defined in the Loan Agreement or in the Sister
Company Loan Agreement.
1.2 INTERPRETATION
This Deed shall be interpreted consistently with the Loan Agreement, and
accordingly the provisions of Clauses 1.2 to 1.4 (inclusive) of the Loan
Agreement shall apply hereto and (MUTATIS MUTANDIS) shall be deemed to be
incorporated into this Deed as if set out in full in this Deed.
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2. FLOOR GUARANTEE AND UNDERTAKING
2.1 GUARANTEE
Each Sponsor hereby severally irrevocably and unconditionally guarantees
to each of the Beneficiaries the due and punctual payment and discharge by
each of the Borrower and the Sister Company of such Sponsor's Several
Proportion of all monies, obligations and liabilities of any nature
whatsoever which are now or at any time hereafter may be or become due or
owing by the Borrower and/or the Sister Company to each such Beneficiary
under or pursuant to the Loan Agreement or the Sister Company Loan
Agreement (including, but not limited to, any damages for any breaches
thereof) and such Sponsor's Several Proportion of any other liabilities,
whether actual or contingent, now existing or hereafter incurred by the
Borrower and/or the Sister Company to each such of the Beneficiaries under
or pursuant to [the Loan Agreement or the Sister Company Loan
Agreement](whether, in any such case, due, owing or incurred by the
Borrower and/or the Sister Company alone or jointly with any other
person(s) and in whatever name, firm or style and whether as principal or
surety) (all such obligations and liabilities being referred to herein as
the "GUARANTEED OBLIGATIONS") and undertakes that if the Borrower or the
Sister Company (as the case may be) fails for any reason punctually to
perform such of the Guaranteed Obligations or any of them as it is liable
to perform, each Sponsor severally shall cause such Sponsor's Several
Proportion of each and every such payment to be made within five (5)
Banking Days of receipt by such Sponsor of a written demand from the
Beneficiaries (or either of them) as if such Sponsor instead of the
Borrower or the Sister Company (as the case may be) were expressed in the
[the Loan Agreement or the Sister Company Loan Agreement respectively] to
be the primary obligor with respect to such Sponsor's Several Proportion
of the relevant Guaranteed Obligation.
2.2 INDEMNITY
Each Sponsor hereby severally irrevocably and unconditionally undertakes
with each of the Beneficiaries that if any sum expressed to be payable by
such Sponsor under Clause 2.1 is not for any reason recoverable from that
Sponsor under this Deed on the basis of a guarantee (including, without
limitation, any sum not recoverable under this Deed due to any invalidity,
unenforceability or avoidance of any of the Financing Documents)
suchSponsor shall as a primary obligor indemnify the Beneficiaries in
respect thereof and shall pay such sum to such Beneficiaries on first
demand.
2.3 LIMITATION
The aggregate amount recoverable from each of the Sponsors under Clause 2
of this Deed (whether as sureties or by way of indemnity) shall not
exceed:
(i) in the case of Pride US$32,400,000; and
(ii) in the case of Maritima US$75,600,000.
2.4 COMMENCEMENT
The obligation of the Guarantors under this Deed in respect of Guaranteed
Obligations shall commence on the Charterparty Commencement Date and
neither of the Guarantors shall have any obligation until such date but so
that with effect from such date the
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Guarantors shall be liable in respect of all Guaranteed Obligations
whenever the same may have arisen (and whether the same arose prior to or
after such date).
3. PRESERVATION OF OBLIGATIONS
3.1 DURATION OF OBLIGATIONS
The Sponsors agree that their respective obligations under this Deed shall
remain in full force and effect throughout the Security Period and
notwithstanding the enforcement by the Security Agent of any of its rights
under the Security Documents (including but without limitation, the
appointment of a Receiver) or by either of the Beneficiaries or the taking
of possession of any of the Secured Assets or any part thereof.
3.2 CONTINUING GUARANTEE ETC.
Each of the Sponsors declares and agrees that:
(i) this Deed shall be held by and shall be available to the Beneficiaries
as a continuing guarantee and shall not be satisfied by any
intermediate payment or satisfaction of any part of the moneys
and liabilities hereby agreed to be paid or performed and shall
remain in full force and effect until the Guaranteed Obligations
and any other moneys and liabilities hereby agreed to be paid or
performed have been unconditionally and irrevocably paid and
discharged in full to the satisfaction of the Beneficiaries;
(ii) it has not received any security from the Borrower or the Sister
Company or from any other persons for the giving of this Deed and it
will not take any such security without the prior written consent of
the Beneficiaries, and the Sponsors will hold any security taken in
breach of this provision in trust for the Beneficiaries;
(iii) neither of the Beneficiaries shall be bound to enforce any guarantee
or security or proceed or take any other steps against the Borrower
and/or the Sister Company or any other person before enforcing this
Deed;
(iv) this Deed shall be in addition to, and not in substitution for, any
other rights which the Beneficiaries may now or hereafter have under
or by virtue of any guarantee, security, encumbrance or agreement or
any lien or by operation of law or under any collateral or other
security now or hereafter held by the Beneficiaries or the Security
Agent or to which the Security Agent or either of the Beneficiaries
may be entitled; and
(v) without prejudice to sub-clause (i) this Deed shall be held by
and shall be available to the Beneficiaries as security for
the ultimate balance owing to the Beneficiaries in respect of
the Guaranteed Obligations and shall not be discharged or affected
by any intermediate reduction in (or extinguishment of) all or
any of the Guaranteed Obligations resulting from a transfer or
assignment by a Beneficiary of all or any of such Beneficiary's
rights under the Loan Agreement or the Sister Company Loan
Agreement pursuant to Clause 8.
3.3 AVOIDANCE OF SECURITIES
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Any settlement or discharge under this Deed between either Beneficiary and
the Sponsors shall be conditional upon no security or payment to the
Beneficiaries (or either of them) by the Borrower and/or the Sister
Company, the Sponsors or any other person being avoided or set-aside or
ordered to be refunded or reduced by virtue of any provision or enactment
relating to bankruptcy, insolvency or liquidation for the time being in
force, and if such condition is not satisfied, the Beneficiaries (or
either of them) shall be entitled to recover from the Sponsors on demand
the value of such security or the amount of any such payment as if such
settlement or discharge had not occurred.
3.4 PRESERVATION OF RIGHTS
The obligations of the Sponsors under this Deed shall not be affected by
any act, omission, matter or thing which, but for this provision, might
operate to release or otherwise exonerate either of the Sponsors from its
obligations hereunder in whole or in part, including (without limitation,
and whether or not known to or discoverable by the Sponsors, the Borrower,
the Sister Company, either Beneficiary or any other person):
(i) any time or waiver granted to or composition with the Borrower, the
Sister Company or the other Sponsor or any other person;
(ii) the taking, variation, compromise, discharge, composition,
arrangement, renewal or release of or refusal or neglect to perfect
or enforce any rights, remedies or securities against the Borrower,
the Sister Company or the other Sponsor or any other person;
(iii) any legal limitation, disability, incapacity or other circumstances
relating to the Borrower, the Sister Company or the other Sponsor or
any other person;
(iv) any amendment or supplement to this Deed or any of the Financing
Documents or any other document or security;
(v) the dissolution, liquidation, amalgamation, reconstruction or
reorganisation of the Borrower, the Sister Company or the other
Sponsor or any other person;
(vi) the unenforceability or invalidity of any obligations of the
Borrower, the Sister Company or the other Sponsor or any other
person under this Deed or any of the other Financing Documents or
any other document or security;
(vii) the failure of either of the Beneficiaries or any other person to
take any other guarantee or security (whether contemporaneous with
this Deed) or otherwise; or
(viii) any other act, event or omission which but for the provision would
or might operate to impair, discharge or otherwise affect the
obligations of the Sponsors or either of them hereunder.
3.5 NON-COMPETITION
Until all the Guaranteed Obligations and the other moneys and liabilities
hereby agreed to be paid or performed have been unconditionally and
irrevocably paid and discharged in full to the satisfaction of the
Beneficiaries, the Sponsors shall not by virtue of any payment made or
performance hereunder on account of such moneys and liabilities or by
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virtue of any relationship between, or transaction involving, the
Sponsors, the Borrower, the Sister Company or any other person:
(i) exercise any rights of subrogation or otherwise in relation to any
rights, security or moneys held or received or receivable by any
Secured Party or any other person;
(ii) exercise any right of contribution from the other Sponsor or any
co-surety or any other person liable in respect of such moneys and
liabilities under any other guarantee, security or agreement;
(iii) exercise any right of set-off or counterclaim against the Borrower,
the Sister Company or the other Sponsor or any such co-surety or any
other person;
(iv) receive, claim or have the benefit of any payment, distribution,
security or indemnity from the Borrower, the Sister Company or the
other Sponsor or any such co-surety or any other person; or
(v) unless so directed by the Beneficiaries (when the Sponsors will
prove in accordance with such directions), claim as a creditor of
the Borrower, the Sister Company or the other Sponsor or any such
co-surety in competition with the Beneficiaries (or either of them).
The Sponsors shall hold in trust for the Beneficiaries and forthwith pay
or transfer (as appropriate) to the Beneficiaries any such payment
(including an amount equal to any such set-off), distribution or benefit
of such security, indemnity or claim received by it.
3.6 SUSPENSE ACCOUNTS
Until the Guaranteed Obligations and all other liabilities hereby agreed
to be paid or performed have been unconditionally and irrevocably paid in
full to the satisfaction of the Beneficiaries, either Beneficiary may at
any time keep in a separate account (without liability to pay interest
thereon) for as long as it may think fit any moneys received, recovered or
realised under this Deed or under any other guarantee, security or
agreement relating in whole or in part to the moneys and liabilities
hereby agreed to be paid and performed without being under any
intermediate obligation to apply the same or any part thereof in or
towards the discharge of such amount.
3.7 INTEREST
The Sponsors shall pay interest at the relevant rate applicable under the
relevant Financing Document (as well after as before judgement) on any
amount for the time being due from the Sponsors to either Beneficiary
under this Deed from the date of a valid demand for payment hereunder
until actual payment in full.
3.8 OPENING OF NEW ACCOUNTS
If for any reason this Deed ceases to be a continuing security, either
Beneficiary may either continue any then existing account or open one or
more fresh accounts for the Borrower or the Sister Company, but in either
case the obligations of the Guarantors shall
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remain unaffected by, and be computed without regard to, any payment into
and out of any such account.
4. PAYMENTS
4.1 CURRENCY OF FUNDS
All payments to be made by the Sponsors under this Deed shall be made:
(i) for value on the due date at such time and in such funds as the
Beneficiaries entitled to such payment may specify to the Sponsors
as being customary at the time for the settlement of transaction in
US Dollars in the place for payment; and
(ii) to such account at such office or bank as the Beneficiary entitled
to such payment may notify to the Sponsors for this purpose.
4.2 NO SET-OFF OR COUNTERCLAIMS
All amounts due from the Sponsors to the Beneficiaries (or either of them)
under this Deed shall be paid without any form of set-off, counterclaim or
condition whatsoever. Any amount due from the Sponsors under this Deed
shall not be reduced by any set-off, counterclaim or other claim which the
Sponsors may have against the Borrower or the Sister Company whether under
this Deed, any Project Document or otherwise.
4.3 UNCONDITIONAL OBLIGATION
Nothing in this Deed, nor any matter, fact, act, omission, circumstance or
thing whatsoever, including without limitation:
(i) the failure or frustration of the project the subject of the
Project Documents;
(ii) any change in circumstances or political, economic or financial
conditions;
(iii) the insolvency, dissolution, death, disability or incapacity of any
person whatsoever; or
(iv) the breach by any person of any agreement or understanding,
shall operate in any way to affect or minimise, or release the Sponsors
from any of the Sponsors' obligations under, this Deed, all of which
obligations shall subsist in full notwithstanding any such matter, fact,
omission, circumstance or thing.
5. TAXATION
All payments to be made by the Sponsors (or either of them) hereunder
shall be made without set-off or counterclaim and free and clear of and
without deduction for or on account of any present or future Taxes of any
nature whatsoever imposed by or in any country ("APPLICABLE TAX") unless
the Sponsors (or either of them) are compelled by law to make payment to
or for the account of the Beneficiaries (or either of them) subject to
such Applicable Tax, in which case it shall promptly pay such Applicable
Tax and the amount of the relevant payment hereunder shall be increased to
the extent necessary to
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ensure that the recipient Beneficiary actually receives an amount, free
and clear of and after deduction for all such Applicable Tax, equal to the
full amount which would have been received if no such withholding or
deduction had been made. Each of the Sponsors shall severally pay and
indemnify and keep indemnified each of the Beneficiaries against all such
Applicable Tax. The Sponsors shall promptly deliver to each of the
Beneficiaries copies of official Tax receipts evidencing payment of any
such Applicable Tax imposed as aforesaid. The obligations of the Sponsors
under this Clause 5 shall survive the repayment of the Guaranteed
Obligations and Sister Company Obligations and the payment of all other
sums payable hereunder and under the other Security Documents.
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS
Each of the Sponsors represents and warrants severally as to itself to
each of the Beneficiaries on the date of this Deed as follows:-
(i) It is a limited liability company duly organised and validly
existing under the laws specified on page 1 of this Deed, possessing
perpetual corporate existence and the capacity to sue or be sued in
its own name and each of it and its Subsidiaries has the power to
own its assets and carry on its business as it is now being
conducted.
(ii) It has the power to enter into and perform this Deed and each of
the other Financing Documents and the Project Documents to which
it is a party and the transactions contemplated thereby and has
taken all necessary action to authorise the entry into and
performance of this Deed and each of the other Financing
Documents and the Project Documents to which it is a party and
the transactions contemplated thereby in accordance with the
terms thereof.
(iii) This Deed and each of the other Financing Documents and the Project
Documents to which it is a party constitute its legal, valid and
binding obligations enforceable in accordance with their respective
terms and are in proper form for the enforcement in all the courts
of the country of incorporation.
(iv) The entry into and performance of this Deed and each of the other
Financing Documents and Project Documents to which it is a party and
the transactions contemplated thereby do not conflict with:
(a) any law or official requirement;
(b) its constitutional documents; or
(c) any agreement or document to which it or any of its
Subsidiaries is a party or which is binding upon it or any of
its Subsidiaries or any of their respective assets, and will
not result in the creation or imposition of (or enforcement
of) any encumbrance on any of its assets or the assets of any
of its Subsidiaries.
6.2 REPETITION
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The representations and warranties set out in this Clause 6 shall survive
the execution of this Deed and the making of each Advance and shall be
deemed to be repeated on the date of the giving of each Drawdown Notice,
on each Drawdown Date on each Repayment Date, so long as any of the
Guaranteed Obligations is or may be outstanding or any Commitment is in
force with reference to the facts and circumstance then subsisting, as if
make at each such time.
7. CURRENCY INDEMNITY
7.1 INDEMNITY
(i) If, for any reason, any payment due from the Sponsors (or either
of them) under or in connection with this Deed is made or is
satisfied in a currency (the "OTHER CURRENCY") other than the
currency in which the relevant payment under this Deed is due
(the "CONTRACTUAL CURRENCY"), then to the extent that the payment
(when converted into the Contractual Currency at the rate of
exchange on the date of payment or, in the case of the
liquidation or insolvency of the Sponsors (or either of them), at
the rate of exchange on the latest date permitted by applicable
law for the determination of liabilities in such liquidation or
insolvency) actually received by the party entitled thereto falls
short of the amount expressed to be due under the terms of this
Deed, the Sponsors, or (as the case may be) the relevant Sponsor,
shall, as a separate and independent several obligation,
indemnify the party entitled thereto and hold such party harmless
against the amount of such shortfall.
(ii) If on any occasion the Contractual Currency so purchased exceeds
the amount payable hereunder in the Contractual Currency to the
party entitled thereto then, subject to the Sponsors, or (as the
case may be) the relevant Sponsor, having no further obligation,
actual or contingent, to such party under this Deed, such party
shall refund to the Sponsors, or (as the case may be) the
relevant Sponsor, the excess amount of the Contractual Currency
so purchased.
(iii) For the purpose of this Clause "RATE OF EXCHANGE" means the rate at
which the party entitled thereto is able on the relevant date to
purchase the Contractual Currency with the Other Currency and shall
take into account any premium and other costs of exchange.
7.2 INDEPENDENT OBLIGATIONS
The indemnities in Clause 7.1 shall constitute separate and independent
obligations of the Sponsors from their other respective obligations under
this Deed, shall give rise to a separate and independent cause of action
against the Sponsors or (as the case may be) the relevant Sponsor
severally and shall apply irrespective of any indulgence granted by the
Beneficiaries (or either of them) from time to time.
8. ASSIGNMENT
If either of the Beneficiaries transfers the benefit of any of its rights
under the Loan Agreement or the Sister Company Loan Agreement to any
transferee (a "TRANSFEREE") (including any transfer effected pursuant to
and in accordance with Clause 15.4 of the Loan Agreement or the Sister
Company Loan Agreement) such Beneficiary shall be
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entitled to elect whether to transfer and assign the benefit of its rights
under this Deed by the service of notice by such Beneficiary upon the
Sponsors. If such Beneficiary does not serve such a notice such
Beneficiary shall retain the full benefit of this Deed for the obligations
of the Guarantors in respect of the Guaranteed Obligations and for the
avoidance of any doubt it is expressly confirmed and agreed by the
Guarantors and each of them that the benefit of this Deed shall apply in
respect of the Guaranteed Obligations including (for the avoidance of
doubt) any Guaranteed Obligations existing at the date of or incurred
after the date of such transfer.
9. NOTICES, ETC.
9.1 METHOD OF SENDING
Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by facsimile transmission or by telex
or by letter.
9.2 ADDRESSES FOR NOTICES
Any communication or document to be made or delivered by one person to
another pursuant to this Deed shall (unless the one has by not less than
three (3) days' written notice to the other specified another address) be
made or delivered to that other person at the respective addresses set out
below.
(1) The Beneficiaries: Petro Dia Three S.A.
c/o Mitsubishi Corporation
6-3 Marunouchi 2-chome
Chiyoda-ku
Tokyo
Japan
Attention: General Manager, Ship & Industrial Project Department
Facsimile:
(2) The Sponsors Petro Dia Four S.A.
c/o Mitsubishi Corporation
6-3 Marunouchi 2-chome
Chiyoda-ku
Tokyo
Japan
Attention: General Manager, Ship & Industrial Project Department
Facsimile:
9.3 DEEMED RECEIPT
Any notice given hereunder shall be deemed to have been received:
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(i) If sent by facsimile transmission or by telex, at the opening of
business one (1) Banking Day after the day it was transmitted;
(ii) In the case of a written notice lodged by hand, at the time of
actual delivery; and
(iii) If posted, on the fifth Banking Day following the day on which it
was properly despatched by first class mail postage prepaid.
10. COUNTERPARTS
This Deed may be executed in any number of counterparts and by the
different parties hereto on different counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
11. WAIVER; REMEDIES CUMULATIVE
No failure to exercise and no delay in exercising on the part of the
Beneficiary (or either of them) any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other or further
exercise thereof, or the exercise of any other right, power or privilege.
The rights and remedies herein provided are cumulative and not exclusive
of any rights or remedies provided by law.
12. LANGUAGE
Each document referred to herein or to be delivered hereunder (including
financial statements) and each other communication shall be in the English
language.
13. SEVERABILITY
Any provision in this Deed which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
14. GOVERNING LAW AND JURISDICTION
14.1 GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law.
14.2 SUBMISSION TO JURISDICTION
Each of the parties hereto irrevocably agrees that the English courts are
to have jurisdiction to settle any disputes which may arise out of or in
connection with this Deed and/or the Financing Documents and that
accordingly any suit, action or proceedings ("PROCEEDINGS") arising out of
or in connection with this Deed and/or the other Financing Documents may
be brought in such courts.
14.3 WAIVER OF OBJECTION
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Each of the Sponsors irrevocably waives any objection which it may have
now or hereafter to the laying of the venue of any Proceedings in any such
court as is referred to in Clause 14.2 and any claim that any such
Proceedings have been brought in an inconvenient forum, and further
irrevocably agrees that a judgment in any Proceedings brought in the
English courts shall be conclusive and binding upon each of the Sponsors
and may be enforced in the courts of any other jurisdiction.
14.4 OTHER JURISDICTIONS
Nothing contained in this Clause 14 shall limit the right of any of the
parties hereto to take proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
14.5 SERVICE OF PROCESS
The Sponsors irrevocably and unconditionally:
(a) designate, and appoint and empower Hackwood Secretaries Limited of
One Silk Street, London EC2Y 8HQ to receive for them and on their
behalf, service of process issued out of the English courts in any
Proceedings arising out of or in connection with this Agreement;
(b) agree to maintain in England a duly appointed process agent notified
to the other parties to this Agreement, for the purposes of
paragraph (a) above;
(c) agree that failure by any such process agent to give notice of such
process to them shall not impair the validity of such service or of
any judgment based thereon;
(d) consent to the service of process out of any of the said courts in
any such Proceedings by the airmailing of copies, postage prepaid,
to them at the address for the time being applying for the purposes
of Clause 8; and
(e) agree that nothing herein shall affect the right to serve process in
any other manner permitted by law.
IN WITNESS whereof the parties have caused this Deed to be executed and
delivered as a Deed.
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PRIDE )
INTERNATIONAL INC acting by )
its duly authorised signatory/ )
attorney-in-fact in the presence of:- ) /s/ Illegible
EXECUTED and DELIVERED )
as a DEED by MARITIMA )
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PETROLEO E ENGENHARIA ) /s/ Illegible
LTDA acting by its duly authorised )
signatory/attorney-in-fact in the )
presence of:- ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PETRO DIA THREE )
SA acting by its duly authorised )
signatory/attorney-in-fact )
in the presence of:- ) /s/ Illegible
EXECUTED and DELIVERED ) /s/ Illegible
as a DEED by PETRO DIA FOUR )
SA acting by its duly authorised )
signatory/attorney-in-fact )
in the presence of:- ) /s/ Illegible
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