SUPPLEMENT NO. 2 TO TRUST INDENTURE
Exhibit
10.6
SUPPLEMENT
NO. 2
TO
THIS SUPPLEMENT NO. 2, dated
August 4, 2009 (“Supplement No. 2”),
to that certain Trust Indenture dated May 28, 2003 (the “Indenture”), as
supplemented by Supplement No. 1 dated May 4, 2005 (“Supplement No. 1”) is
by and between ROWAN COMPANIES, INC., a Delaware corporation (the “Shipowner”), and
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, together with the Shipowner, 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,
TARZAN II Series" with a maximum principal amount of $89,658,000;
WHEREAS, on May 4, 2005, in
connection with the changes in Payment Dates and Stated Maturities of the
Obligations the Shipowner executed Supplement No. 1 to Indenture and issued an
amended and restated $89,658,000 Floating Rate Note (the "Initial
Transaction");
WHEREAS, Section 4(b) of the
Special Provisions of the Indenture provides that the Shipowner may redeem or
repay the amended and restated 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 amended
and restated Floating Rate Note is currently $65,746,000; and
WHEREAS, the Parties wish to
amend certain documents relating to the Initial Transaction in order to provide
for the complete redemption of the amended and restated Floating Rate Note by
the issuance of a fixed rate note in the aggregate principal amount of
$65,746,000.
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
August 4, 2009.
"Fixed Rate Note” or
“Fixed Rate Obligation” shall mean an Obligation substantially in the form of
Exhibit A to Supplement No. 2 to Indenture, appropriately
completed.
"Indenture Trustee"
means MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
(successor-in-interest to ALLFIRST TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association), and any successor trustee permitted under the
Indenture.
“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.
“Mortgage” means the
first preferred continuing mortgage on the Vessel, Contract No. MA-13845,
granted under the laws of the Republic of the Xxxxxxxx Islands by the Shipowner
to the Secretary, as originally executed, modified, amended or
supplemented.
“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 0.25%; 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.
“Secretary” or “Administrator” means
the Secretary of Transportation or any official or official body from time to
time duly authorized to perform the duties and functions of the Secretary of
Transportation under Title XI of the Act (including the Maritime Administrator,
the Acting Maritime Administrator, and to the extent so authorized, the Deputy
Maritime Administrator, the Acting Deputy Maritime Administrator and other
officials of the Maritime Administration.
“Supplement No. 2 to
Indenture” means the Supplement No. 2 to Trust Indenture dated August 4,
2009, between the Shipowner and the Indenture Trustee.
“Title XI” means Title
XI of the Act (now codified as Chapter 537 of Title 46 of the U.S.
Code).
“Vessel” means the
Shipowner's self-elevating mobile offshore drilling unit named the XXX XXXXXX
(ex- TARZAN II) (O.N. 3160) and constructed by XXXXXXXXXX, INC. in accordance
with the Construction Contract, including all work and material heretofore or
hereafter performed upon or installed in or placed on board such Vessel,
together with related appurtenances, additions, improvements, and
replacements.
All other capitalized terms used herein
have the meanings set forth in Schedule A to the Indenture, as
amended.
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, TARZAN II Series," and shall be substantially in the form of
Exhibit A to
Supplement No. 2 to Indenture; and, the aggregate principal amount of
Obligations which may be issued under this Indenture shall not exceed
$65,746,000.
Section 2.02. Article 4(a) and
(c) 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, 2005 through May 10, 2009,
and commencing November 1, 2009, on May 1 and November 1 of each year
thereafter, of $2,989,000 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 Note on May 1, 2020.
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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
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, 2020
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, 2020 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
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*
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*
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(c)
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Optional
Redemptions of Obligations at Make-Whole Premium. At its
option, the Shipowner may prepay on any Interest Payment Date the Fixed
Rate Note, in whole or in part, at a Redemption Price equal to 100% of the
principal amount thereof together with interest accrued thereon to the
Redemption Date plus the Make-Whole Premium, if
any. Prepayments shall be applied pro rata against each Fixed
Rate Note and applied against the scheduled principal payments in the
inverse order of scheduled
maturity.
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Section
2.03. Article 4(e) of the Special Provisions of the Indenture is hereby
deleted in its entirety.
Section
2.04. The phrase “in the form of Exhibit B to Supplement No. 1 to
Indenture” in Article 5(f) of the Special Provisions of the Indenture is revised
to read “in the form of Exhibit A to Supplement No. 2 to
Indenture.”
Section
2.05. Concerning Section 2.10 of Exhibit 1 to the Indenture, on and after
the Effective Date, the Shipowner shall not execute and the Indenture Trustee
shall not authenticate, transfer, exchange or deliver any Obligation unless in
the form of Exhibit A to Supplement No. 2 to Indenture.
Section 2.06. 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 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 the Vessel, or (2) requisition of title to, or seizure or forfeiture of
the 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 2.07. Article 5(w) of the
Special Provisions of the Indenture is hereby deleted in its
entirety.
Section 2.08. Article 5(cc) of
the Special Provisions of the Indenture is hereby amended and restated in its
entirety to read as follows:
(cc) Concerning Registered and
Beneficial Ownership of theObligations;
Legends.
(i) The
Fixed Rate Note will be issued in the form of a single permanent global Note in
definitive, fully registered form without interest coupons (the "Global
Obligation"). Except as provided in paragraph (iii) below, owners of
beneficial interests in the Global Obligation ("Beneficial Owners") shall not be
entitled to receive separate certificated Notes ("Definitive Obligations") 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. The Global Obligation
shall bear such legend as DTC may require.
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(ii)
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Members
of, or participants in, DTC shall have no rights under the Indenture with
respect to the Global Obligation held on their behalf by DTC or by the
Indenture Trustee, as the custodian of DTC, or under the 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 the 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 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 the Global
Obligation.
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(iii)
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(1)
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The
transfer and exchange of the Global Obligation or beneficial interests
therein shall be effected through DTC or the Indenture Trustee, as the
custodian for DTC, in accordance with the Indenture and the procedures of
DTC therefor.
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(2)
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The
Global Obligation shall be exchangeable for Definitive Obligations
registered in the names of persons owning the beneficial interests in the
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 Obligation 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 authenticate Definitive
Obligations in the names provided to the Indenture Trustee by
DTC.
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(3)
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The
Global Obligation that is exchangeable for Definitive Obligations
registered in the name of the owners of beneficial interests therein
pursuant to this paragraph (iii) shall be surrendered by DTC to the
Indenture Trustee to be so exchanged, without charge, and the Shipowner
shall execute and the Indenture Trustee shall authenticate and deliver,
upon such exchange of the Global Obligation, an equal aggregate principal
amount of Definitive Obligations of authorized
denominations. Definitive Obligations issued in exchange for a
beneficial interest in the Global Obligation pursuant hereto shall be
registered in such names and in such authorized denominations as DTC,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Indenture Trustee in writing. The
Indenture Trustee shall deliver such Definitive Obligations to the
Beneficial Owners in whose names such Obligations are so registered in
accordance with the instructions of
DTC.
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(4)
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The
registered holder of a Global Obligation may grant proxies and otherwise
authorize any Beneficial Owner, including DTC's members and participants
and Beneficial Owners that may hold interest through such members and
participants, to take any action which a Holder is entitled to take under
the Indenture or the Obligations.
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(5)
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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.
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(6)
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Notwithstanding
any other provision of the Indenture, the Global Obligation may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee
of DTC to DTC or another nominee of
DTC.
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(iv)
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At
such time as all beneficial interests in a Global Obligations have either
been exchanged for Definitive Obligations, redeemed, repurchased or
canceled, the Global Obligation shall be returned to the Indenture Trustee
for cancellation or retained and canceled by the Indenture
Trustee.
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(v)
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The
Indenture Trustee shall have no responsibility or obligation to any owner
of a beneficial interest in the Global Obligation, a member of, or a
participant in, DTC or any other Beneficial 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 Beneficial 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 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 the Global Obligation). The
rights of owners of beneficial interests in the 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.
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Section 2.09. Endorsement of Floating Rate
Note. Upon surrender of the Floating Rate Note issued on May
4, 2005 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
2.10. Form
of Fixed Rate Note. The form of Fixed Rate Note is attached as
Exhibit A to this Supplement No. 2 to Indenture.
Section 2.11. 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 A to Supplement No. 2 to
Indenture.
Section
2.12. Concerning
Notice. Article 6 (a) of the Special Provisions to the
Indenture is amended to provide that notices to the Secretary and the Indenture
Trustee shall be given as follows:
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To the
Secretary
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Address:
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SECRETARY
OF TRANSPORTATION
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x/x Xxxxxxxx Xxxxxxxxxxxxx
Xxxxxx
Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxx
Xxxxxxx Center
0000 Xxx
Xxxxxx Xxxxxx, XX
Xxxxxxxxxx,
X.X. 00000
Attention: Shipyard
and Marine Financing
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
To the Indenture
Trustee
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Address:
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MANUFACTURERS
AND TRADERS TRUST COMPANY
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Mail Code MD2-CS58
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
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Attention:
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Xx.
Xxxxxx X. Xxxxxxxx
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Except as so amended, the provisions of
the Indenture are hereby confirmed, and shall remain in full force and
effect.
This Supplement No. 2 to 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.
IN WITNESS WHEREOF, this
Supplement No. 2 to 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
Chief Financial
Officer
________________________
Corporate
Secretary
MANUFACTURERS AND TRADERS
TRUST
COMPANY
(SEAL) Indenture
Trustee
ATTEST:
By:_______________________
Vice
President
________________________
Vice
President
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. 2 to Trust Indenture.
ATTEST:
UNITED STATES OF AMERICA,
SECRETARY OF
TRANSPORTATION
BY: MARITIME
ADMINISTRATION
By:__________________________
Acting
Secretary
