Contract
Exhibit
10b
4.04
SUPPLEMENT
NO. 1
TO
THIS
SUPPLEMENT NO. 1,
dated as
of June 15, 2005 (“Supplement
No. 1"), to that certain Trust Indenture dated as of May 28, 2003 (the
"Indenture") is by and between MANUFACTURERS AND TRADERS TRUST COMPANY, a
New
York banking corporation (successor-in-interest to ALLFIRST TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association), as indenture trustee
(the
"Indenture Trustee"), and ROWAN COMPANIES, INC. (the "Shipowner", and together
with the Indenture Trustee, the "Parties").
WHEREAS,
on May
28, 2003, the Shipowner executed the Indenture, and issued thereunder a Floating
Rate Note designated, "United States Government Guaranteed Ship Financing
Obligations, SCOOTER XXXXXXXX Series" (the "Initial Transaction") with a
maximum
principal amount of $91,198,000;
WHEREAS,
Section
4(b) of the Special Provisions of the Indenture provides that the Shipowner
may
redeem or repay the Floating Rate Note, in whole or in part, on a Redemption
Date designated by the Shipowner, from the proceeds of the issuance of a
fixed
rate note;
WHEREAS,
the
outstanding principal amount of the Floating Rate Note is currently $85,118,000;
and
WHEREAS,
the
Parties wish to amend certain documents relating to the Initial Transaction
in
order to provide for the complete redemption of the Floating Rate Note by
the
issuance of a fixed rate note in the aggregate principal amount of
$85,118,000.
NOW
THEREFORE,
in
consideration of the mutual rights and obligations set forth herein and of
other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the Parties agree as follows:
ARTICLE
FIRST
Section
1.01 Schedule
A.
Schedule
A to the Indenture is hereby amended by adding or substituting the following
definitions:
“Authorized
Newspapers” means The
Wall Street Journal,
or if
it ceases to exist, then in such other newspaper(s) as the Secretary may
designate.
"Effective
Date" means June 15, 2005.
"Fixed
Rate Note" shall mean an Obligation substantially in the form of Exhibit
3B to
the Indenture, appropriately completed.
“Letter
of Representations” means the Blanket Issuer Letter of Representations between
the Shipowner and DTC, any Riders thereto, and DTC’s Operational Arrangements,
and other documentation necessary or desirable to effectuate the issuance
of the
Fixed Rate Notes as Global Obligations.
“Reinvestment
Rate” means the yield determined by the Indenture Trustee, based on information
received from the Holder or calculation agent, to be the yield of the issue
of
actively traded United States Treasury securities having a maturity equal
to the
Weighted Average Life to Final Maturity plus . 10%; provided, however, that
if
such Weighted Average Life to Final Maturity is not equal to the maturity
of an
actively traded United States Treasury security (rounded to the nearest
one-twelfth of a year), such yield shall be obtained by linear interpolation
from the yields of actively traded United States Treasury securities having
the
greater maturity closest to and the lesser maturity closest to such Weighted
Average Life to Final Maturity. The yields shall be determined by reference
to
the yields as indicated by Telerate Access Service (page 8003 or the relevant
page at the date of determination indicating such yields) (or, if such data
ceases to be available, any publicly available sources of similar market
data)
at approximately 11:00 a.m. (New York City time) on the Make-Whole Premium
Determination Date.
All
other
capitalized terms used herein have the meanings set forth in Schedule A to
the
Indenture, as amended.
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ARTICLE
SECOND
The
Indenture shall be amended as follows:
Section
2.01 The
Obligations.
Article
2(a) of the Special Provisions of the Indenture is hereby amended and restated
in its entirety as follows:
(a)
The
Obligations issued hereunder shall be designated "United States Government
Guaranteed Ship Financing Obligations, SCOOTER XXXXXXXX Series," and shall
be
substantially in the form of Exhibit 3B to
this
Indenture; and, the aggregate principal amount of Obligations which may be
issued under this Indenture shall not exceed $85,118,000.
Section
2.02 Article
4(a) of the Special Provisions of the Indenture is hereby amended and restated
in its entirety to read as follows:
(a) Scheduled
Mandatory Redemption.
The
Obligations are subject to redemption at a Redemption Price equal to 100%
of the
principal amount thereof, together with interest accrued thereon to the
applicable Redemption Date, through the operation of scheduled repayment
providing for the semi-annual redemption on May 10 and November 10 of each
year,
from November 10, 2004 through May 10, 2005, and commencing November 1, 2005,
on
May 1 and November 1 of each year thereafter, of $3,040,000 of principal
amount
of Obligations, which amount represents approximately one thirtieth (1/30)
of
the Original Principal Amount of Obligations, plus interest accrued thereon
to
the Redemption Date. Unless redeemed earlier in accordance with this Indenture,
there shall be a final redemption of the remaining outstanding principal
of the
Floating Rate Note on the Effective Date and a final redemption of the remaining
outstanding principal of the Fixed Rate Notes on May 1, 2019.
Notwithstanding
the
foregoing provisions of this subsection (a), if the principal amount of
Outstanding Obligations shall be reduced by reason of any redemption pursuant
to
Sections 3.04 or 3.06 of Exhibit 1 to this Indenture, the principal amount
of
Obligations to be redeemed pursuant to this subsection (a) on each subsequent
Redemption Date for such Obligations shall be reduced by an amount equal
to the
principal amount of such Obligations
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retired
by reason of such redemption pursuant to Sections 3.04 or 3.06 of Exhibit
1
hereto divided by the number of Redemption Dates (including the Stated Maturity
of such Obligations) scheduled thereafter to May 1, 2019 in the case of Fixed
Rate Note(s) (subject to such increase as shall be necessary so that the
total
principal amount of Obligations to be redeemed on any such Redemption Date
shall
be an integral multiple of $1,000); provided that,
the
entire unpaid principal amount of the Outstanding Obligations shall be paid
not
later than the Effective Date in the case of the Floating Rate Note and May
1,
2019 in the case of each Fixed Rate Note. The Shipowner shall, in accordance
with Section 3.02(e) of Exhibit 1 hereto, promptly after each redemption
pursuant to said Sections 3.04 or 3.06, furnish to the Secretary, the Indenture
Trustee and each Holder a revised table of scheduled repayments reflecting
the
reductions made pursuant to this subsection (a) as a result of such
redemption
Section
2.03 The
first
paragraph Article
4(e)(1) of the Special Provisions of the Indenture is hereby amended and
restated in its entirety to read as follows:
(e) Fixed
Rate Note Interest Rate Protection.
(1)
The
Shipowner shall redeem the Floating Rate Note in full by causing to be issued
one or more fixed rate obligations with a maturity equal to May 1, 2019 and
using the proceeds thereof to repay the Floating Rate Note in full, whenever
the
Treasury constant maturities rate (10-year) as reported by the Federal Reserve
Board in statistical release H.15 (519) (the “Treasury Rate”) equals or exceeds
nine percent (9.0%) per annum (the “Trigger Event”).
Section
2.04 The
phrase “in the form of Exhibit 3 hereto” in Article 5(f) of the Special
Provisions of the Indenture is revised to read “in the form of Exhibit 3B to
this Indenture.”
Section
2.05. Article
5(l) of the Special Provisions of the Indenture is hereby amended and restated
in its entirety to read as follows:
(l) Concerning
Section 3.05.
Section
3.05 is revised to read as follows:
SECTION
3.05. Redemption
after Total Loss, or Requisition of Title, Seizure or Forfeiture of a
Vessel.
The
Shipowner and the Secretary
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may
Request a Redemption Date, at least forty (40) days but not more than sixty
(60)
days from the Indenture Trustee’s receipt of the Request, for the redemption of
certain Obligations because of (1) an actual, constructive, agreed or
compromised total loss of a Vessel, or (2) requisition of title to, or seizure
or forfeiture of a Vessel. Upon receipt, the Indenture Trustee shall promptly
give notice to the Holders of the Redemption Date as provided in Section
3.08
and on that date shall redeem, out of funds it receives from the Shipowner,
such
principal amount of Obligations together with the interest accrued
thereon.
Section
2.06 Article
5(w) of the Special Provisions of the Indenture is hereby deleted in its
entirety.
Section
2.07
Article
5(cc)(i), (ii), (iii)(2), (iii)(5) and (v) of the Special Provisions of the
Indenture are hereby amended and restated in their entirety to read as
follows:
(cc) Concerning
Registered and Beneficial Ownership of the Obligations;
Legends.
(i)The
Fixed Rate Notes may be issued initially in the form of one or more permanent
global Notes in definitive, fully registered form without interest coupons
(each, a "Global Obligation"). Except as provided in paragraph (iii) below,
owners of beneficial interests in Global Obligations ("Obligation Owners")
shall
not be entitled to receive separate certificated Notes ("Definitive Obligation")
and shall not be considered the holders thereof. Each such Global Obligation
shall be deposited with DTC or the Indenture Trustee, as custodian for DTC,
registered in the name of Cede or such other nominee as may be requested
by DTC,
and duly executed by the Shipowner and authenticated by the Indenture Trustee
as
provided in the Indenture. Each Global Obligation shall bear such legend
as DTC
may require.
(ii) Members
of, or participants in, DTC shall have no rights under the Indenture with
respect to any Global Obligation held on their behalf by DTC or by the Indenture
Trustee, as the custodian of DTC, or under such Global Obligation, and Cede
or
such other nominee as DTC may request may be treated by the Shipowner, the
Indenture Trustee and any agent of the Shipowner or the Indenture Trustee
as the
absolute owner of such Global Obligation for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Shipowner,
the
Indenture Trustee or any agent of the Shipowner or the Indenture Trustee
from
giving effect to any written certification, proxy or other authorization
furnished by DTC, Cede or such other nominee
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as
DTC may request, or impair, as between DTC and its members and participants,
the
operation of customary practices of DTC governing the exercise of the rights
of
an owner of a beneficial interest in any Global Obligation.
*
*
*
(iii) (2) A
Global
Obligation shall be exchangeable for Definitive Obligations registered in
the
names of persons owning the beneficial interests in such Global Obligation
only
if DTC notifies the Shipowner, with a copy to the Indenture Trustee, that
it is
unwilling or unable to continue as depositary for such Global Obligation
or DTC
ceases to be a clearing agency registered under the Securities Exchange Act
of
1934, as amended, at a time when DTC is required to be so registered in order
to
act as depositary, and a successor depositary is not appointed by the Shipowner
within 90 days thereafter. In such event, the Indenture Trustee shall within
30
days from receipt of such notice instruct DTC to notify its direct and indirect
participants of the need to re-register the Obligations in the names of the
beneficial owners. Upon surrender by DTC of the Global Obligations issued
in its
name, the name of Cede or another nominee, the Shipowner shall issue at its
sole
cost and expense, and the Indenture Trustee shall authentic Definitive
Obligations in the names provided to the Indenture Trustee by DTC.
*
*
*
(5) In
the event of the occurrence of the event specified in paragraph (iii)(2),
the
Shipowner shall promptly make available to the Indenture Trustee a reasonable
supply of Definitive Obligations.
*
*
*
(v) The
Indenture Trustee shall have no responsibility or obligation to any owner
of a
beneficial interest in a Global Obligation, a member of, or a participant
in,
DTC or any other Obligation Owner with respect to the accuracy of the records
of
DTC or its nominee or of any participant or member thereof, with respect
to any
ownership interest in the Obligations or with respect to the delivery to
any
participant, member, beneficial owner or other Obligation Owner (other than
DTC)
of any notice (including any notice of redemption) or the payment of any
amount
or delivery of any Obligations (or other security or property) under or with
respect to such Obligations. All notices and communications to be given to
the
Holders and all payments to be
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made
to
Holders in respect to the Obligations shall be given or made only to or upon
the
order of the registered Holders (which shall be DTC, Cede or such other nominee
as may be requested by DTC, in the case of a Global Obligation). The rights
of
owners of beneficial interests in any Global Obligation shall be exercised
only
through DTC subject to the applicable rules and procedures of DTC. The Indenture
Trustee may rely and shall be fully protected in relying upon information
furnished by DTC with respect to its members, participants and any beneficial
owners.
Section
2.08 Endorsement
of Floating Rate Note.
Upon
surrender of the Floating Rate Note issued on May 28, 2003 to the Indenture
Trustee by the Holder thereof following the payment in full of all amounts
due
thereunder, such Floating Rate Note shall be endorsed to show the redemption
of
the outstanding amount and thereupon shall be cancelled.
Section
2.09 Form
of Fixed Rate Note.
The
form of Fixed Rate Note attached as Exhibit 3 to the Indenture is renumbered
as
Exhibit 3A and the form of Fixed Rate Note attached as an Exhibit to this
Supplement is designated as Exhibit 3B to the Indenture.
Section
2.10 Issuance
of Fixed Rate Note.
On and
after the Effective Date, the Shipowner shall issue and deliver to the Holders
thereof Fixed Rate Note(s) in accordance with the Indenture substantially
in the
form of Exhibit 3B to the Indenture.
Except
as
so amended, the provisions of the Indenture are hereby confirmed, and shall
remain in full force and effect.
This
Supplement No. 1 to the Indenture may be executed in several counterparts,
each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Notwithstanding
any provision herein, in the event there are any inconsistencies between
the
original of this document held by the Secretary, and an original held by
any
other party to this transaction, the provisions of the original document
held by
the Secretary shall prevail.
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IN
WITNESS WHEREOF, this
Supplement No. 1 to the Indenture has been duly executed by the Parties as
of
the day and year first above written.
(SEAL) ROWAN
COMPANIES, INC.
ATTEST:
By:______________________
Vice
President -
Finance and
Treasurer
________________________
Secretary
MANUFACTURERS
AND
TRADERS TRUST
COMPANY
(SEAL)
Indenture
Trustee
ATTEST:
By:_______________________
Vice
President
________________________
Vice
President
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CONSENT:
Pursuant
to Section 10.05 of the General Provisions Incorporated into the Trust Indenture
by Reference attached as Exhibit 1 to the Trust Indenture, the Secretary
hereby
consents to this Supplement No. 1 to the Trust Indenture.
ATTEST: UNITED
STATES OF
AMERICA,
SECRETARY
OF
TRANSPORTATION
__________________
BY:
MARITIME ADMINISTRATION
By:__________________________
Secretary
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