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EXHIBIT 10 (v)
Document 1
COMMITMENT TO GUARANTEE OBLIGATIONS
BY
THE UNITED STATES OF AMERICA
Accepted by
ROWAN COMPANIES, INC.
Shipowner
(Under Title XI, Merchant Marine Act, 1936,
as amended, and in effect on the
date of this Guarantee Commitment)
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TABLE OF CONTENTS
Doc.
No. Document
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1 Commitment to Guarantee Obligations
2 Schedule One -- Form of Opinion of Counsel
3 Appendix I -- Form of Credit Agreement
4 Appendix II -- Form of Trust Indenture
5 Schedule A -- Schedule of Definitions to Trust Indenture
6 Exhibit 1 -- General Provisions Incorporated into the Trust Indenture
by Reference
7 Exhibit 2 -- Form of Floating Rate Note
8 Exhibit 3 - Form of Fixed Rate Note
9 Exhibit 4 -- Form of Authorization Agreement
10 Appendix III -- Form of Security Agreement
11 Exhibit 1 -- General Provisions Incorporated into the Security
Agreement by Reference
12 Schedule X -- Schedule of Definitions
13 Exhibit 2 -- Form of Secretary's Note
14 Exhibit 3 -- Form of First Preferred Ship Mortgage
15 Exhibit 4 -- Form of Amendment No. 3 to Financial Agreement
16 Exhibit 5 -- Form of Consent of Shipyard
17 Exhibit 6 -- Construction Contract
18 Exhibit 7 -- Form of Amendment No. 2 to Depository Agreement
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Contract No. MA-13538
COMMITMENT TO GUARANTEE OBLIGATIONS
BY
THE UNITED STATES OF AMERICA
Accepted by
ROWAN COMPANIES, INC.
SHIPOWNER
THIS COMMITMENT TO GUARANTEE OBLIGATIONS, dated as of October 29, 1999
(the "Guarantee Commitment"), is made and entered into by the UNITED STATES OF
AMERICA (the "United States"), represented by the SECRETARY OF TRANSPORTATION,
acting by and through the MARITIME ADMINISTRATOR (the "Secretary"), and accepted
on said date by ROWAN COMPANIES, INC., a Delaware corporation (the "Shipowner").
RECITALS:
A. The Shipowner will be the sole owner of the mobile, self-contained
and elevating drilling platform to be named the GORILLA VII ("the Vessel") built
pursuant to the Construction Contract with XXXXXXXXXX, INC., a Texas corporation
(the "Shipyard").
B. To aid in financing the construction of the Vessel, the Shipowner
will borrow an aggregate principal amount equal to 87-1/2% of the Actual Cost of
the Vessel, as of the Closing Date. To accomplish such financing, the Shipowner
has accepted this Guarantee Commitment subject to the terms and conditions set
forth herein.
C. The Shipowner has entered into the Credit Agreement providing for
the sale and delivery, on the Closing Date, of obligations in the aggregate
principal amount of $185,398,000 to be designated "United States Government
Guaranteed Ship Financing Obligations, GORILLA VII Series" (the "Obligations")
having the maturity date and interest rate set forth herein.
D. As security for the Guarantees and the Secretary's Note, the
Shipowner will execute and deliver the Security Agreement, Contract No.
MA-13540, and the following agreements shall be executed and delivered: the
Indenture, the Authorization Agreement, Contract No. MA-13539, the Secretary's
Note, the Mortgage, Contract No. MA-13541, Amendment No. 3 to the Financial
Agreement, Contract MA-13261, and Amendment No. 2 to the Depository Agreement,
Contract No. MA-13445.
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W I T N E S S E T H:
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That under the provisions of Title XI of the Merchant Marine Act, 1936,
as amended and in consideration of (i) the covenants of the Shipowner contained
herein and (ii) other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Secretary hereby commits
itself as herein provided.
ARTICLE I
FINDINGS AND DETERMINATIONS OF SECRETARY
Pursuant to Section 1104A(b)(1) of Title XI, the Secretary has approved
the Shipowner as responsible and possessing the ability, experience, financial
resources and other qualifications necessary to the adequate operation and
maintenance of the Vessel.
Pursuant to Section 1104A(b)(2) of Title XI, the Secretary has
determined that the aggregate of the Actual Cost of the Vessel is $211,883,822.
Prior to the Closing Date, the Secretary, in its discretion, may redetermine the
Actual Cost of the Vessel.
On the Closing Date, the aggregate principal amount of the Obligations
will not exceed 87-1/2% of the Actual Cost.
Pursuant to Sections 1104A(b)(3), 1104A(b)(4) and 1104A(b)(5) of Title
XI, the Secretary has determined that: (1) the maturity date of the Obligations
is satisfactory, (2) payments of principal required by the Obligations are
satisfactory, and (3) the interest rate to be borne by the Obligations to be
issued on the Closing Date is reasonable.
Pursuant to Section 1104A(d) of Title XI, the Secretary has found that
the Shipowner's proposed use of the Vessel will be economically sound.
ARTICLE II
COMMITMENT TO GUARANTEE OBLIGATIONS
The United States, represented by the Secretary, HEREBY COMMITS ITSELF
TO GUARANTEE the payment of the unpaid interest on, and the unpaid balance of
the principal of, the Obligations, including interest accruing between the date
of default under the Obligations and the payment in full of the Guarantees, and,
to effect this Guarantee Commitment, hereby commits itself to execute and
deliver the Authorization Agreement, Security Agreement, Amendment No. 3 to
Financial Agreement, and Amendment No. 2 to the Depository Agreement on the
Closing Date, and the Mortgage on the Delivery Date pursuant to the terms of the
Guarantee Commitment.
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ARTICLE III
THE OBLIGATIONS
The Obligations shall be as provided in the Indenture and in the form
of the Obligations annexed as Exhibits 2 and 3 to the Indenture. The Obligations
shall be subject to all of the terms and conditions set forth in the Indenture.
ARTICLE IV
CONDITIONS TO EXECUTION AND DELIVERY OF THE GUARANTEE
The obligation of the Secretary to execute and deliver the Guarantee on
the Closing Date shall be subject to the following conditions unless waived in
writing by the Secretary:
(a) the Closing Date shall occur on or prior to April 20, 2000;
(b) the Shipowner and the Shipyard shall have executed and delivered to
the Secretary a copy of the Construction Contract, as amended, and the Shipyard
shall have executed the Consent of Shipyard;
(c) the Shipowner shall have executed and delivered the following
documents in the form attached hereto: the Security Agreement, Amendment No. 3
to Financial Agreement, Trust Indenture, Secretary's Note, Obligations, Credit
Agreement, and Amendment No. 2 to the Depository Agreement;
(d) the Indenture Trustee shall have executed, in the form attached
hereto, the Authorization Agreement and Indenture, the Depository shall have
executed the Depository Agreement; and the Lender shall have executed the Credit
Agreement;
(e) the following documents shall have been delivered to the
Secretary: (i) one executed counterpart and one copy of the Credit Agreement ;
(ii) two executed counterparts of the Indenture, (iii) two specimen copies of
the Obligations; (iv) two executed originals of the legal opinion issued under
section (k) of this Article; (v) two copies of the legal opinion delivered to
the Lender pursuant to the Credit Agreement, and (vi) two originals of all other
documents delivered by the Shipowner, Indenture Trustee or the Depository in
connection with this Closing;
(f) if the Shipowner intends to operate the Vessel in the U.S. domestic
trade, the Shipowner and any bareboat charterers of such Vessel shall have
furnished to the Secretary on the Closing Date an affidavit complying with the
requirements of 46 C.F.R. 355, demonstrating U.S. citizenship;
(g) the Shipowner shall have executed an Officer's Certificate
representing and warranting the truth of the following statements as of the
Closing Date:
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(i) each of the representations and warranties set out at
Section 2.01 of the General Provisions of the Security Agreement in
Appendix III; and
(ii) the Shipowner is not in violation of any Federal laws
having a substantial adverse effect on the interests of the United
States of America and that the consummation of the Commitment complies
with non-Title XI Federal law.
(h) the Secretary shall have received the Guarantee Fee payable under
Section 1104A (e) of Title XI and the Investigation Fee due under Section 1104A
(f) of Title XI;
(i) the Shipowner shall have complied in all material respects with its
agreements under this Guarantee Commitment;
(j) there shall not have occurred any event which constitutes (or after
any period of time or any notice, or both, would constitute) a "Default" under
the Security Agreement;
(k) there shall have been delivered to the Secretary by the Shipowner
an opinion of counsel acceptable to the Secretary, in the form annexed hereto as
Schedule 1 which shall include, among other things, an opinion to the effect
that: (i) by the terms of the Security Agreement, the Shipowner has granted to
the Secretary a fully perfected, first priority security interest in each of the
assets which constitutes the Security; and (ii) all filings, recordings, notices
and other actions required to perfect the Secretary's interests in the Security
and to render such security interests valid and enforceable under applicable
State law have been duly effected;
(l) the Secretary shall have received a letter agreement from the
Shipowner to provide the Secretary within a reasonable time after the Closing
Date, with eight conformed copies of the Guarantee Commitment and each of the
Appendices and Exhibits thereto executed on or prior to such date;
(m) on the Closing Date, the qualifying requirements set forth in
Section 15 of the Financial Agreement shall have been complied with and
certified to as required therein; and
(n) at least ten (10) days prior to the Closing Date, there shall have
been delivered to the Secretary, pro forma balance sheets for the Shipowner as
of the Closing Date, certified by an officer of the Shipowner showing, among
other things, all non-Title XI debt of the Shipowner;
(o) on the Closing Date, the Shipowner shall certify that all non-Title
XI debt to the Shipowner relating to the Vessel have been discharged or
subordinated satisfactorily to the Secretary; and
(p) at least ten (10) days prior to the Closing Date, the Shipowner
shall have provided the Secretary with satisfactory evidence of marine insurance
as required by the Security Agreement.
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ARTICLE V
VARIATION OF GUARANTEE COMMITMENT
No variation from the terms and conditions hereof shall be permitted
except pursuant to an amendment executed by the Secretary and the Shipowner.
ARTICLE VI
TERMINATION OR ASSIGNMENT OF GUARANTEE COMMITMENT
This Guarantee Commitment may be terminated and the parties hereto
shall have no further rights or obligations hereunder, upon written notice by
the Secretary of the termination of the obligations of the United States
pursuant to the Shipowner's failure to satisfy one or more conditions set forth
in Article V hereof or upon the Secretary's determination, at or before the
Closing Date, that (i) the Shipowner is in violation of Federal law and such
violation would have a substantial, adverse effect on the interests of the
United States of America, or (ii) the consummation of the Commitment would
violate non-Title XI Federal law. The Shipowner's warranties and representations
shall survive the termination of this Guarantee Commitment and the Secretary's
issuance of the Guarantees. This Guarantee Commitment may not be assigned by the
Shipowner without the prior written approval of the Secretary and any attempt to
do so shall be null and void ab initio.
ARTICLE VII
MISCELLANEOUS
(a) The table of contents and the titles of the Articles are inserted
as a matter of convenient reference and shall not be construed as a part of this
Guarantee Commitment. This Guarantee Commitment may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
(b) For all purposes of this Guarantee Commitment, unless otherwise
expressly provided or unless the context shall otherwise require, capitalized
terms used herein shall have the meaning given in Schedule X to the Security
Agreement.
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IN WITNESS WHEREOF, this Commitment to Guarantee Obligations has been
executed by the United States and accepted by the Shipowner, all as of the day
and year first above written.
UNITED STATES OF AMERICA,
SECRETARY OF TRANSPORTATION
BY: MARITIME ADMINISTRATION
(SEAL)
BY: Xxxx X. Xxxxxxx
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Secretary
Maritime Administration
Attest:
Xxxxx X. Xxxxxxxxxx
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Assistant Secretary
Maritime Administration
ACCEPTED BY:
ROWAN COMPANIES, INC.
as Shipowner
BY: X.X. Xxxxxx
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Senior Vice President
(SEAL)
Attest:
BY: Xxxx X. Xxx
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EXHIBIT 3 TO THE SECURITY AGREEMENT DOCUMENT 14
Contract No. MA-13541
FIRST PREFERRED SHIP MORTGAGE
THIS FIRST PREFERRED SHIP MORTGAGE, dated __________________ 2002, is
made by ROWAN COMPANIES, INC., a Delaware corporation (the "Shipowner" and
"Mortgagor") located at Suite 0000, 0000 Xxxx Xxx Xxxx., Xxxxxxx, Xxxxx
00000-0000 to the UNITED STATES OF AMERICA (the "United States"), represented by
the Secretary of Transportation, acting by and through the Maritime
Administrator (the "Secretary" and "Mortgagee") located at the U.S. Department
of Transportation, 000 Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
WHEREAS, pursuant to understandings set forth in the Recitals to the
Security Agreement executed this date, the Shipowner has authorized the issuance
of Obligations designated "United States Government Guaranteed Ship Financing
Obligations, GORILLA VII Series" in an aggregate principal amount not to exceed
$185,398,000 to finance the construction of the GORILLA VII, Official Number
(the "Vessel");
WHEREAS, the Shipowner is the sole owner of the whole of the Vessel;
NOW, THEREFORE, THIS MORTGAGE WITNESSETH:
That, in consideration of the premises and of the additional covenants
herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and as security for the Guarantees
and in order to secure the payment of the above-mentioned interest on and
principal of the Secretary's Note and all other sums that may be secured by the
Mortgage and the Security Agreement, and to secure the due performance and
observance of all the agreements and covenants in the Secretary's Note and
herein contained, the Shipowner has granted, conveyed, mortgaged, pledged,
confirmed, assigned, transferred and set over, and by these presents does grant,
convey, mortgage, pledge, confirm, assign, transfer and set over unto the
Mortgagee a hundred percent interest in the whole of the Vessel which is more
fully described in its certificates of documentation, together with all of its
boilers, engines, machinery, masts, spares, rigging, boats, anchors, cables,
chains, tackle, tools, pumps and pumping equipment,
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apparel, furniture, fittings and equipment, spare parts and all other
appurtenances to said Vessel appertaining or belonging, whether now owned or
hereafter acquired whether on board or not and all additions, improvements,
renewals and replacements hereafter made in or to said Xxxxxx or said
appurtenances.
TO HAVE AND TO HOLD, all and singular, the above mortgaged and
described property unto the Mortgagee, to its own use, benefit and behoof
forever;
PROVIDED, HOWEVER, and these presents are upon the condition that, if
the above-mentioned principal of and interest on the Secretary's Note are paid
or satisfied in accordance with the terms thereof, the Security Agreement and
this Mortgage, and all other obligations and liabilities that may be secured by
the Security Agreement and this Mortgage are paid in accordance with their
terms, then this Mortgage and the estate and rights hereunder shall cease,
determine and be void, otherwise to remain in full force and effect.
The Shipowner hereby agrees with the Mortgagee that the Vessel now or
at any time subject to the lien of this mortgage is to be held by the Mortgagee
subject to the further agreements and conditions hereinafter set forth.
ARTICLE FIRST
SECTION 1. All of the Shipowner's covenants and agreements including,
without limitation, those relating to: maintenance of United States citizenship;
organization and existence of the Shipowner; title to and possession of the
Vessel; sale, transfer or charter of the Vessel; taxes; liens; documentation of
the Vessel; material changes in the Vessel; compliance with applicable laws;
maintenance of marine insurance; requisition of title; and compliance with
Chapter 313 of Title 46 of the United States Code, set forth in, and all of the
Secretary's rights, immunities, powers and remedies provided for in the Security
Agreement, except for the Granting Clause thereof, together with all other
provisions of the Security Agreement, are incorporated herein by reference with
the same force and effect as though set forth at length in this Mortgage, and a
true copy of the form of the Security Agreement are annexed hereto.
SECTION 2. A Default pursuant to the provisions of the Security
Agreement shall constitute a default hereunder, and shall give the Mortgagee the
rights and remedies established by Chapter 313 of Title 46 of the United States
Code, and as provided in the Security Agreement.
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ARTICLE SECOND
SECTION 1. This Mortgage may be executed in any number of counterparts
and all such counterparts executed and delivered each as an original shall
constitute but one and the same instruments.
SECTION 2. All of the Shipowner's covenants, promises, stipulations and
agreements in this Mortgage shall bind the Shipowner and its successors and
assigns, and shall inure to the benefit of the Mortgagee and its successors and
assigns, and all of the Mortgagee's covenants, promises, stipulations and
agreements in this Mortgage, shall bind the Mortgagee and its successors and
assigns, and shall inure to the benefit of the Shipowner and its successors and
assigns, whether so expressed or not.
SECTION 3. All capitalized terms used herein shall have the meaning
specified in Schedule X to the Security Agreement, unless the context otherwise
requires.
SECTION 4. No provision of this Mortgage or of the Security Agreement
shall be deemed to constitute a waiver by the Mortgagee of the preferred status
of the Mortgage given by 46 U.S.C. ss.31305, and any provision of this Mortgage
or of the Security Agreement which would otherwise constitute such a waiver,
shall to such extent be of no force and effect.
SECTION 5. Once the Mortgage shall have become null and void, the
Secretary, on request of the Shipowner and at the Shipowner's cost and expense,
shall forthwith cause satisfaction and discharge of this Mortgage to be entered
upon its and other appropriate records, and shall execute and deliver to the
Shipowner such instruments as may be necessary, duly acknowledging the
satisfaction and discharge of this Mortgage.
ARTICLE THIRD
The total principal amount of the obligations that is secured by this
First Preferred Ship Mortgage is One Hundred Eighty-Five Million Three Hundred
Ninety-Eight Thousand Dollars and NO/100's ($185,398,000) excluding interest,
expenses, and fees. The date of discharge for the Vessel is as follows: October
20, 2013.
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IN WITNESS WHEREOF, this instrument has been executed on the date below
indicated, and effective as of the day and year first above written.
ROWAN COMPANIES, INC.,
as Shipowner
(SEAL) BY:
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Senior Vice President
Date Signed:
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Attest:
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Secretary
CONSENTED TO: UNITED STATES OF AMERICA
SECRETARY OF
TRANSPORTATION
acting by and through the
MARITIME ADMINISTRATOR
BY:
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Secretary
Maritime Administration
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ACKNOWLEDGMENT
DISTRICT OF COLUMBIA )
) ss:
CITY OF WASHINGTON )
On this ____ day of ___________, ____, before me, ______________, a
Notary Public in and for the District of Columbia, personally appeared Xxxxxx X.
Xxxxxx, duly known to me to be the Senior Vice President of ROWAN COMPANIES,
INC., a Delaware corporation, the corporation described in and that executed the
instrument hereto annexed and acknowledged to me that the seal affixed to said
instrument is such corporation's seal, that it was so affixed by authority set
forth in the By-laws of said corporation, and that he/she signed his/her name
thereto by like authority.
(NOTARIAL SEAL)
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NOTARY PUBLIC
My Commission Expires:
DISTRICT OF COLUMBIA )
) ss:
CITY OF WASHINGTON )
I, the undersigned, a Notary Public in and for the District of
Columbia, do hereby certify that __________________ , Secretary of the Maritime
Administration, personally appeared before me in said District, the aforesaid
officer being personally well known to me as the person who executed the
Mortgage hereto annexed, and acknowledged the same to be his/her act and deed as
said officer.
Given under my hand and seal this __________ day of ________, ______.
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NOTARY PUBLIC
My Commission Expires:
(NOTARIAL STAMP AND SEAL)
