Exhibit 10.37
Xxxxxxxx Xx. XX-00000
XXXXXXXXX NO. 1 TO SECURITY AGREEMENT
SPECIAL PROVISIONS:
This Amendment No. 1 to Security Agreement, dated of as January 21, 2000
("Amendment No. 1 to Security Agreement"), between Perforadora Central SA. de
C.V., a Mexican corporation (the "Shipowner") and the United States of America
(the "United States"), represented by the Secretary of Transportation, acting by
and through the Maritime Administrator (the "Secretary"), pursuant to the
provisions of Title XI of the Merchant Marine Act, 1936 as amended.
WITNESSETH:
A. The Shipowner has contracted for the construction of the TONALA, a
XxXxxxxxxx Design Super 116C Xxxx-Up Mobile Drilling Unit (the "Vessel") to
be built pursuant to the Construction Contract with TDI-Halter, Inc., a
Texas corporation (the "Shipyard"). Subsequently, the Shipyard merged with
TDI-Halter Limited Partnership, a Louisiana Limited Partnership (the
"Merged Shipyard"), which assumed by operation of law the rights and
obligations of the Shipyard under the Construction Contract, as modified,
amended or supplemented thereafter;
B. Effective November 4, 1999, TDI-Halter Limited Partnership changed its name
to Xxxxxx Xxxxxxx Offshore Texas, Limited Partnership.
C. Delivery of the Vessel will occur on the date hereof;
D. To aid in the financing of the costs of construction of the Vessel, the
Shipowner has entered into the Bond Purchase Agreement providing for the
sale and delivery, on the Closing Date, of United States Government
Guaranteed obligations in the aggregate principal amount of $70,528,000.00,
designated "United States Government Guaranteed Export Ship Financing
Obligations, 1998 Series" (the "Obligations") having the maturity date and
interest rate set forth in the Bond Purchase Agreement, the Indenture and
the Obligations (the "Guarantee Transaction");
E. As part of the Guarantee Transaction, the Shipowner executed and delivered
to the Secretary, its promissory Note in the amount of the Obligations (the
"Secretary's Note");
F. The Shipowner has, on the date hereof, the Delivery Date of the Vessel,
provisionally registered the Vessel under the laws of Panama, and granted
to the Secretary a mortgage with first priority (Contract No. MA-13451),
pursuant to the laws of Panama, and enforceable under the laws of Panama
and Mexico.
G. As further security to the Secretary and in consideration of the
Secretary's agreeing to issue the Guarantees, the Merged Shipyard executed
the Consent of Merged Shipyard to the assignment of the Construction
Contract pursuant to the Security Agreement, and XxXxxxxxxx, Inc. has
executed a Consent of and Grant of Rights by XxXxxxxxxx, Inc. pursuant to
the assignment of the Construction Contract to the Secretary as set forth
in Shipowner's assignment of the Security Agreement, and has also granted,
directly to the Secretary, and to Shipowner certain rights in and to the
License Agreement and Kit Construction Agreement.
H. In connection with the delivery of the Vessel, the Shipowner has agreed to
grant additional security to the Secretary.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in order to provide security to
the Secretary for the Secretary's Note, the parties hereto hereby agree as
follows:
ARTICLE 1 ADDITIONS, DELETIONS AND AMENDMENTS
(1) Concerning Table A.
Attached hereto is Exhibit (1) to Table A setting forth the actual costs of
the Vessel.
(2) Concerning Schedule X.
Schedule X to the Security Agreement is hereby amended by:
(a) adding the following definitions:
"Amendment No. 1 to Security Agreement" shall mean this Amendment
No. 1 to the Security Agreement dated January 21, 2000, between the
Shipowner and the Secretary.
"TONALA" means the xxxx-up drilling unit described in Recital A of
Amendment 1 to Security Agreement.
"Final Closing Date" or "Final Closing" means the date the Shipowner
and Secretary executed the Mortgage.
(3) Concerning the Security Agreement Special Provisions and Exhibit 1 to the
Security Agreement
(a) Sections 3(i) and (j) are deleted in their entirety from the Security
Agreement Special Provisions.
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(b) On the Delivery Date, and on each anniversary thereof, the Shipowner
shall deposit into the Escrow Fund an amount equal to .033 of the
outstanding principal amount of the Secretary's Note (the "Deposit");
provided, however, that in the event the Vessel is subject to that
certain Bareboat Charter Agreement between the Shipowner and Xxxxxx'
Offshore, LLC (the "Charterer"), dated November 30, 1999 (the
"Charter"), no Deposit shall be required; and provided further that in
the event the Charter is terminated within the first 365 consecutive
days of the Delivery Date, the Shipowner shall on the date the Charter
is terminated make the Deposit that was initially due on the Delivery
Date and shall make the subsequent Deposits on each anniversary of the
Delivery Date. If the Charter is or is to be terminated after 365
consecutive days of the Delivery Date, the Shipowner shall make the
Deposit due for the immediately preceding anniversary of the Delivery
Date.
(c) These deposits are in lieu of the Shipowner's providing the Secretary
with satisfactory mortgagee rights political risk insurance, and are
required only when the Vessel is in Mexico or in Mexican waters for a
full year as defined in (d) below; provided however, that the
Shipowner shall provide the Secretary with written notice 30 days
prior to moving the Vessel to any country other than Mexico (or back
to Mexico from any such other country), and the Secretary, in his sole
discretion, may
(i) require either that the Shipowner obtain political risk
insurance coverage, in form and substance satisfactory to the
Secretary, on the Vessel prior to the intended move, or
(ii) (if a deposit has not made been made for the applicable full
year) deposit funds in an amount equal to .003 of the outstanding
principal amount of the Secretary's Note.
(d) Notwithstanding Section (3)(b) above, in the event the Vessel is in
United States waters for a full year, no such deposit shall be
required for that year. A full year shall be defined as the 365
consecutive days from the Delivery Date and every anniversary
thereafter.
(e) The Shipowner shall provide the Secretary with Contingent Operators
Extra Expense insurance, including coverage for control of well,
redrilling, and pollution and contamination, in an amount no less than
$50 million, and such insurance shall be in form and substance
satisfactory to the Secretary.
(f) The Shipowner shall also provide the Secretary with personal injury
insurance which shall be in form and substance satisfactory to the
Secretary; provided however, the Shipowner may forego such insurance
for the Vessel's crew if and only if the Vessel is being operated in
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Mexican waters and her crew is covered for personal injury by the
Mexican equivalent of U.S. Social Security as it exists on the
Delivery Date (the "Mexican Coverage"). The Shipowner shall notify the
Secretary in writing of any change in such Mexican laws, and shall
provide the Secretary with a legal opinion, in form and substance
satisfactory to the Secretary, from independent counsel satisfactory
to the Secretary regarding the effects of any such changes.
(g) The Shipowner shall exercise its option to terminate the Charter under
the terms of Section 7(h) thereof only with the Secretary's prior
written consent.
ARTICLE 2 MISCELLANEOUS PROVISIONS.
(1) The Shipowner and the Secretary hereby reaffirm the terms and provisions of
the Security Agreement, as amended hereby, and declare and agree that the
Security Agreement, as amended hereby, is in full force and effect.
(2) Terms used but not defined herein, but which are defined in Schedule X of
the Security Agreement are used herein as so defined unless and to the
extent otherwise provided in this Amendment No. 1 to Security Agreement.
(3) This Amendment No. 1 to Security Agreement may be executed in any number of
counterparts. All such counterparts shall be deemed to be originals and
shall together constitute but one and the same instrument.
(4) Notwithstanding any provision herein, in the event there are any
inconsistencies between the original of this document held by the Secretary
and the original of this document held by any other party hereto, the
provisions of the original of this document held by the Secretary shall
prevail.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Security Agreement to be executed and delivered as of the day and year first
above written.
PERFORADORA CENTRAL S.A. DE C.V.
By: /s/ XXXXXXXX XXXXXXX MORPHY
-----------------------------------
Xxxxxxxx Xxxxxxx Morphy, President
PERFORADORA CENTRAL, S.A. DE CV.
HAS NO SEAL
WITNESS BY:
/s/ XXXXX XXXXXXXXXXX XXXXXXX
---------------------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxx
Vice President and Assistant Secretary
UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
BY: /s/ XXXX X. XXXXXXX
-----------------------------------
Secretary, Maritime Administration
[SEAL]
ATTEST
By: /s/ XXXXXXXX X. XXXXX
------------------------------------
Assistant Secretary, Maritime
Administration
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TABLE A
SUBTABLE (A)(1)
AMOUNT
OBLIGATED
TONALA AMOUNT PAID TO BE PAID TOTAL
Contract Price $62,500,000.00 0 $62,500,000.00
ABS Inspection Fees 1,000.00 0 1,000.00
Changes and Extras 5,000,000.00 0 5,000,000.00
Performance Bond N/A 0 N/A
Net Int. During Const. 6,105,697.00 0 6,105,697.00
Commitment Fee 230,000.00 0 230,000.00
Guarantee Fee 2,330,606.00 0 2,330,606.00
Total Actual Costs $76,167,303.00 0 $76,167,303.00
Escrow Fund Deposit 0 0 0
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