1
EXHIBIT 10t
Contract No. MA-13257
COMMITMENT TO GUARANTEE OBLIGATIONS
BY
THE UNITED STATES OF AMERICA
UNDER TITLE XI
OF THE MERCHANT MARINE ACT, 1936, AS AMENDED
ACCEPTED BY
ROWAN COMPANIES, INC.
Dated as of December 17, 1996
2
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)
------------
TABLE OF CONTENTS
Document
Number Document
------ --------
1 Commitment to Guarantee Obligations
2 Appendix I -- Form of Credit Agreement
3 Appendix II -- Form of Trust Indenture
4 Schedule A -- Schedule of Definition to Trust Indenture
5 Exhibit 1 -- General Provisions Incorporated
into the Trust Indenture by Reference
6 Exhibit 2 -- Form of Floating Rate Note
7 Exhibit 3 -- Form of Fixed Rate Note
8 Exhibit 4 -- Form of Authorization Agreement
9 Exhibit 5 -- Form of Secretary's Supplemental Indenture
10 Appendix III -- 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 -- Title XI Reserve Fund and Financial Agreement
16 Exhibit 1 -- General Provisions Incorporated
into the Title XI Reserve Fund and Financial Agreement
17 Exhibit 5 -- Consent of Shipyard
18 Exhibit 6 -- Construction Contract
19 Exhibit 7 -- Depository Agreement
3
Contract No.
MA-13257
COMMITMENT TO GUARANTEE OBLIGATIONS
by
THE UNITED STATES OF AMERICA
accepted by
ROWAN COMPANIES, INC.
Shipowner
TABLE OF CONTENTS (*)
Page
----
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I Findings and Determinations of Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II Commitment to Guarantee Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III The Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV Covenants of the Shipowner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V Conditions to Execution and Delivery of the Authorization
Agreement, and the Security Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI Variation of Guarantee Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VII Termination or Assignment of Guarantee Commitment . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VIII Conformity To Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IX Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------------
(*) This Table of Contents is not a part of the Guarantee Commitment
and has no bearing upon the interpretation of any of its terms and provisions.
4
Table A
Appendix I - Form of Credit Agreement
Appendix II - Form of Trust Indenture
Appendix III - Security Agreement
5
COMMITMENT TO GUARANTEE OBLIGATIONS
by
THE UNITED STATES OF AMERICA
Accepted by
ROWAN COMPANIES, INC.
Shipowner
-------------
THIS COMMITMENT TO GUARANTEE OBLIGATIONS, dated as of December 17,
1996 (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 V (the
"Vessel") built pursuant to certain construction contract (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 approximately equal to, but
in no event in excess of, 87 1/2% of the Actual Cost of the Vessel.
C. As one means of such financing, the Shipowner has entered into
a Credit Agreement (said Credit Agreement, as the same may be amended, modified
or supplemented from time to time as permitted thereunder, herein called the
"Credit Agreement"), by and between the Shipowner and CITIBANK, N.A., a
national banking association (the "Lender").
D. The Shipowner will on the Closing Date, execute and deliver a
Trust Indenture (the "Indenture"), between the Shipowner and CITIBANK, N.A., a
national banking association, as Indenture Trustee (the "Indenture Trustee"),
in connection with the Obligations to be issued in respect of the Vessel, in
the aggregate amount, with the maturity and bearing interest at the rate
specified in the Indenture.
E. Under the Authorization Agreement (the "Authorization Agreement"),
Contract MA-13258 to be entered into on the Closing Date between the Secretary
and the Indenture Trustee, the
6
Indenture Trustee will be authorized to endorse and execute, by means of
facsimile signature of the Secretary and the facsimile seal of the Department
of Transportation, on each of the Obligations issued and to authenticate a
guarantee by the Secretary of the payment in full of all the unpaid interest
on, and the unpaid balance of the principal of, each Obligation, including
interest accruing between the date of default under such Obligation and the
date of payment by the Secretary (individually, a "Guarantee" and,
collectively, the "Guarantees").
F. The Shipowner, as security for the Guarantees, and as security
to the Secretary for the payment to the Secretary of the principal of, and the
interest due or to become due on, the Secretary's Note to be executed in
accordance with the terms thereof, will, on the Closing Date, enter into a
Security Agreement with the Secretary (the "Security Agreement"), Contract
MA-13259, pursuant to which the Shipowner will assign to the Secretary, among
other things, all of the Shipowner's interest in the Construction Contract, and
all other contracts which relate to the construction of the Vessel, as
specified therein, and all property, including the Vessel, in which the
Shipowner has or will have an interest pursuant to the Construction Contract.
G. The Shipowner will as further security to the Secretary,
execute and deliver on the Delivery Date, a First Preferred Ship Mortgage,
Contract MA-13260, created under and pursuant to Chapter 313, Title 46 United
States Code, to the Secretary, as Mortgagee, upon and attaching to the Vessel.
H. In connection with the execution and delivery of the Security
Agreement, the Shipyard will enter into a consent to the assignment of the
Construction Contract (the "Consent of Shipyard").
I. In order to implement certain aspects of the transactions
contemplated by the Security Agreement and the Indenture, the Secretary, the
Shipowner and CITIBANK, N.A., a national banking association, (the
"Depository") will enter into the Depository Agreement, Contract MA-13262 (the
"Depository Agreement").
X. The Shipowner will as further security to the Secretary, enter
into a Title XI Reserve Fund and Financial Agreement, Contract MA-13261, with
the Secretary (the "Title XI Reserve Fund and Financial Agreement").
-2-
7
W I T N E S E T H:
That under the provisions of Title XI of the Merchant Marine Act,
1936, as amended and in effect on the date hereof (said provisions, as so
amended and in effect on the date hereof, being called "Title XI") and in
consideration of (i) the covenants of the Shipowner contained herein, (ii) the
payment by the Shipowner to the Secretary of the charges for this Guarantee
Commitment pursuant to Section 1104(f) of Title XI, and (iii) other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Secretary hereby commits itself as herein provided.
The following executed documents are annexed to each counterpart of
this Guarantee Commitment: the Security Agreement, the Title XI Reserve Fund
and Financial Agreement, and the Depository Agreement.
Annexed to each counterpart of this Guarantee Commitment are forms of
the Consent of Shipyard, the Credit Agreement, the Indenture, the Obligations,
the Authorization Agreement, the Mortgage, and the Secretary's Note. As used
herein, the "Closing Date" refers to the date for the execution and delivery of
the Obligations as provided in the Credit Agreement annexed hereto, subject to
the conditions contained in Article V hereof.
The Consent of Shipyard, the Credit Agreement, the Indenture, the
Obligations, the Authorization Agreement, and the Secretary's Note (except as
otherwise required by the Secretary), shall be executed and delivered
substantially in the respective forms annexed hereto, except that the blanks,
if any, therein shall be filled in as contemplated therein and herein and,
except further that the maturity dates and interest rates of the Obligations
must be further approved by the Secretary. The Mortgage shall be executed and
delivered substantially in the form annexed hereto on the Delivery Date.
ARTICLE I
Findings and Determinations of Secretary
Pursuant to Section 1104(d) of Title XI, the Secretary has found that
the property or project with respect to which the Obligations will be executed
will be, in his opinion, economically sound.
Pursuant to Sections 1101(f), 1101(g) and 1104(b)(2) of Title XI, the
Secretary has determined that the Actual Cost of the Vessel is $175,042,902.
The Actual Cost of the Vessel is comprised of the amounts determined by the
Secretary set forth in
-3-
8
Table A annexed hereto, and the Secretary has determined that the amounts set
forth in said Table A are itemized as also set forth therein. The Secretary
may, at the request of the Shipowner, make a redetermination of the Actual Cost
of the Vessel to include, in addition to the items set forth or referred to in
said Table A, any other items or any increase in the amounts of the items set
forth or referred to therein.
The aggregate principal amount of the Obligations will not exceed
87-1/2% of the Actual Cost of the Vessel, and the Shipowner may execute the
Obligations in amounts less than 87-1/2% of the Actual Cost during the
Construction Period, provided that on or prior to two years after the Delivery
Date, the Shipowner shall have executed and delivered Obligations equal to
87-1/2% of Actual Cost, subject to the provisions of the preceding paragraph.
Pursuant to Section 1104(b)(3) and 1104(b)(5) of Title XI,
respectively, the Secretary has determined that the maturity date of the
Obligations is satisfactory and that the interest rate to be borne by the
Obligations (exclusive of the charges for the Guarantee Fee and service
charges, if any) to be issued on the Closing Date is reasonable, taking into
account the range of interest rates prevailing in the private market for
similar loans and risks assumed by the Secretary.
Pursuant to Section 1104(b)(4) of Title XI, the Secretary has
determined that payments of principal required by the Obligations are
satisfactory.
ARTICLE II
Commitment to Guarantee Obligations
The United States, represented by the Secretary, HEREBY COMMITS ITSELF
TO GUARANTEE (as provided in the Obligations) 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, the Security Agreement, the Title XI Reserve Fund and Financial
Agreement, and the Depository Agreement on the Closing Date and the Mortgage on
the Delivery Date.
-4-
9
ARTICLE III
The Obligations
The Obligations shall be as provided in the Indenture and in the form
of the Obligations annexed as Exhibit 2 to the Indenture. The Obligations shall
be subject to all of the terms and conditions set forth in the Indenture and in
the forms thereof. The Credit Agreement, the Indenture, the Obligations, the
Security Agreement, the Secretary's Note, the Title XI Reserve Fund and
Financial Agreement, and the Depository Agreement shall be executed and
delivered by the Shipowner on the Closing Date. The Mortgage shall be executed
and delivered by the Shipowner on the Delivery Date. The forms of the Credit
Agreement, the Indenture, the Obligations, the Authorization Agreement, the
Security Agreement, the Mortgage, the Secretary's Note, the Title XI Reserve
Fund and Financial Agreement, and the Depository Agreement are hereby approved
by the Secretary.
ARTICLE IV
Covenants of the Shipowner
The Shipowner represents and, until termination of this Guarantee
Commitment, agrees:
(a) that the Vessel will be constructed substantially in
accordance with the plans and specifications, as applicable, pursuant to the
Construction Contract, as amended, by XXXXXXXXXX, INC., a shipyard within the
United States approved by the Secretary, and on the Delivery Date will be and
shall remain documented under the laws of the United States;
(b) to furnish to the Secretary, promptly upon written
request, such reasonable, material and pertinent reports, evidence, proof or
information, in addition to that furnished pursuant to the further provisions
of this Guarantee Commitment or in the application for this Guarantee
Commitment under Title XI or otherwise available to the Secretary, as the
Secretary may reasonably deem necessary or appropriate in connection with the
performance by the Secretary of his duties and functions under the Act;
(c) to maintain records of all amounts paid or obligated
to be paid by or for the account of the Shipowner for the construction of the
Vessel;
(d) to permit the Secretary, promptly upon request, to
make such reasonable, material and pertinent examination and audit of the
Shipowner's books, records and accounts and to take
-5-
10
such information therefrom and make such transcripts or copies thereof, as the
Secretary may reasonably deem necessary or appropriate in connection with the
performance by the Secretary of his duties and functions under the Act;
(e) to maintain its United States citizenship within the
meaning of Section 2 of the Shipping Act, 1916, as amended, for the purpose of
operation of the Vessel in the trade or trades in which the Shipowner proposes
to operate the Vessel, to the satisfaction of the Secretary and, at the time of
the execution and delivery of the Authorization Agreement, to submit to the
Secretary such supplemental proof of citizenship as the Secretary may deem
appropriate to evidence the continued United States citizenship of the
Shipowner for said purpose; and
(f) to execute and deliver on the Closing Date, the
Credit Agreement, the Obligations, the Indenture, the Security Agreement, the
Secretary's Note, the Title XI Reserve Fund and Financial Agreement, and the
Depository Agreement, and on the Delivery Date, to execute and deliver the
Mortgage.
ARTICLE V
Conditions to Execution and Delivery of the
Authorization Agreement and the Security Agreement
On the Closing Date, the Authorization Agreement shall be executed and
delivered by the United States and the Indenture Trustee; the Security
Agreement, and the Title XI Reserve Fund and Financial Agreement shall be
executed and delivered by the Shipowner and the Secretary; the Credit Agreement
shall be executed and delivered by the Shipowner and the Lender; the
Construction Contract shall be executed and delivered by the Shipowner and the
Shipyard; the Consent of the Shipyard shall be executed and delivered by the
Shipyard; and the Depository Agreement shall be executed and delivered by the
Shipowner, the Secretary and the Depository; and the Secretary's Note shall be
executed and delivered and the Obligations shall be issued and delivered by the
Shipowner. The obligation of the United States represented by the Secretary to
execute and deliver the Authorization Agreement, the Security Agreement, the
Depository Agreement and the Title XI Reserve Fund and Financial Agreement on
the Closing Date shall be subject to the following conditions unless waived in
writing by the Secretary:
(a) the Closing Date shall occur prior to March 31, 1997;
(b) the Shipowner shall have undertaken to execute and
deliver to the Secretary on the Delivery Date a certification
-6-
11
that the Vessel shall be free of any claim, lien, charge, mortgage or other
encumbrance of any character (except the Mortgage, the Security Agreement, and
liens otherwise permitted by Section 2.04 of Exhibit 1 to the Security
Agreement); and the Credit Agreement shall have been executed and delivered on
or prior to the Closing Date and the Indenture and the Obligations shall have
been duly executed and delivered on the Closing Date;
(c) on the Closing Date, the Shipowner shall be a citizen
of the United States within the meaning of Section 2 of the Shipping Act, 1916,
as amended, and shall have furnished to the Secretary an affidavit setting
forth data showing such citizenship to the Secretary's satisfaction at least 30
days prior to the Closing Date and the Shipowner shall have submitted pro forma
affidavits at least ten days prior to the Closing Date;
(d) (i) there shall have been delivered to the Secretary
two executed counterparts of the Credit Agreement, and two executed
counterparts of the Indenture, (ii) two specimen copies of the Obligations
issued under the Indenture; and (iii) two originals of all other documents
delivered by the Shipowner or the Indenture Trustee on the Closing Date;
(e) the following representations and warranties shall
have been made to the Secretary in writing and shall be true as of the Closing
Date:
(i) the Shipowner is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, has not failed to qualify to do business in any
jurisdiction in the United States in which its business or properties
require such qualification, and had and has full legal right,
corporate power and authority to own its own properties and assets and
conduct its business as it is presently conducted;
(ii) the Shipowner had and has legal power and
authority to enter into and carry out the terms of this Guarantee
Commitment, the Construction Contract, the Credit Agreement, the
Obligations, the Indenture, the Security Agreement, the Secretary's
Note, the Title XI Reserve Fund and Financial Agreement, and the
Depository Agreement;
(iii) each and all of the documents and instruments
referred to in clause (ii) hereof have been duly authorized, executed
and delivered by the Shipowner and constitute, in accordance with
their respective terms, legal, valid and binding instruments
enforceable against the Shipowner, except to the extent limited by
applicable bankruptcy, reorganization, insolvency, moratorium or the
-7-
12
similar laws of general application relating to or affecting the
enforcement of creditors rights as from time to time in effect;
(iv) the consummation of the transactions
contemplated by and compliance by the Shipowner of all the terms and
provisions of the documents and instruments referred to in clause (ii)
hereof will not violate any provisions of the Certificate of
Incorporation or By-laws, as amended, of the Shipowner and will not
result in a breach of the terms and provisions of, or constitute a
default under any other agreement or undertaking by the Shipowner or
by which the Shipowner is bound or any order of any court or
administrative agency entered into in any proceedings to which the
Shipowner is or has been a party;
(v) there is no litigation, proceeding or
investigation pending or, to the best of the Shipowner's knowledge,
threatened, involving the Shipowner or any of its property which could
prevent or jeopardize the performance by the Shipowner of the
documents and instruments referred to in clause (ii) hereof.
(f) there shall have been delivered to the Secretary a
copy of each document and legal opinion delivered to the Lender on the Closing
Date;
(g) the Secretary shall have received the Guarantee Fee
payable under the Security Agreement;
(h) all charges levied or assessed by the Secretary under
Section 1104(f) of Title XI shall have been paid by the Shipowner;
(i) the Shipowner shall have performed without material
breach its agreements under Article IV hereof, and the further terms,
conditions and provisions of this Guarantee Commitment shall have been complied
with in all material respects;
(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 (or opinions) of counsel acceptable to the Secretary,
and in form and substance satisfactory to the Secretary, to the effect that:
(i) by the terms of the Security Agreement, the
Shipowner has granted to the Secretary a fully perfected,
-8-
13
first priority security interest in each of the assets which
constitutes the Security, as defined therein;
(ii) all filings and recordings required or
available to perfect the Secretary's first priority security interests
in the Security, as defined in the Security Agreement, granted by the
Shipowner in the Security Agreement, and to render such security
interests valid and enforceable under the laws of the States of
Delaware, Texas and Mississippi (including without limitation, all
filings of financing statements under the UCC) have been duly
effected, and no periodic refiling or periodic re-recording is
required to protect and preserve the perfection and first priority of
such security interests, except as provided by the laws of such
States;
(iii) all agreements have been executed and all
action has been taken which are required under the laws of the State
of New York to establish a bailment by the Shipowner/Secretary/Xxxxxx
of the amounts held or to be held by the Depository/Xxxxxx under the
Depository Agreement, at whatever time, whether such amounts are cash,
instruments, negotiable documents, chattel paper, proceeds thereof or
otherwise (the "Funds"), in order to insure that the Secretary has a
fully perfected first priority security interest in the Funds;
(l) there shall have been executed and delivered to the
Secretary an opinion of counsel in form and substance satisfactory to the
Secretary;
(m) the Secretary shall have received a letter agreement
from the Shipowner to provide the Secretary within a reasonable time after the
Closing Date, with seven conformed copies of the Guarantee Commitment and each
of the Appendices and Exhibits thereto executed on or prior to such date;
(n) on the Closing Date, the qualifying requirements set
forth in Section 15 of the Title XI Reserve Fund and Financial Agreement shall
have been complied with and certified to as required therein;
(o) at least ten days prior to the Closing Date, there
shall have been delivered to the Secretary, pro forma balance sheets for the
Shipowner as of the last date of the month immediately preceding the Closing
Date, certified by an officer of the Shipowner showing, among other things, all
non-Title XI debt of the Shipowner;
-9-
14
(p) on the Closing Date, the Shipowner shall certify that
all non-Title XI loans to the Shipowner relating to the vessel have been
discharged;
(q) at least ten days prior to the Closing Date the
Shipowner shall have provided the Secretary with satisfactory evidence of
insurance and at least ten days prior to the Delivery Date the Shipowner shall
have provided the Secretary with satisfactory evidence of marine insurance as
required by the Security Agreement; and
(r) on the Closing Date, the Shipowner shall have
undertaken to execute and deliver the Mortgage to the Secretary on the Delivery
Date.
ARTICLE VI
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 accepted by the
Shipowner.
ARTICLE VII
Termination or Assignment of Guarantee Commitment
This Guarantee Commitment may terminate and the parties hereto shall
have no further rights or obligations hereunder, upon written notice by the
Secretary, after the earlier of (a) 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 (b) the execution and delivery of
the Security Agreement and the Authorization Agreement.
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 VIII
Conformity with Regulations
The Secretary hereby affirms that, with respect to the rights of the
Indenture Trustee and the Holders of the Obligations, this Guarantee Commitment
conforms to its existing regulations governing the issuance of commitments to
guarantee and guarantees under Title XI of the Act and that this Guarantee
Commitment contains a complete list of conditions required for
-10-
15
the execution and delivery of guarantees including the Guarantees.
ARTICLE IX
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:
(i) The terms "hereof," "herein," "hereby,"
"hereto," "hereunder," "hereinafter" and "herewith" refer to this
Guarantee Commitment as the same may be supplemented or amended as
herein provided; and
(ii) Terms defined in Schedule X of the Security
Agreement annexed hereto or by reference therein to other instruments
shall have the respective meanings stated in Schedule X or such other
instruments.
-11-
16
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
-----------------------------------
Secretary
Maritime Administration
Attest:
Xxxxx X. Xxxxxxx
-----------------------
Assistant Secretary
Maritime Administration
ACCEPTED BY:
ROWAN COMPANIES, INC.
as Shipowner
BY: X. X. Xxxxxx
-----------------------------------
Senior Vice President
[SEAL]
Attest:
BY: Xxxx X. Xxx
-------------------
Secretary
-12-
17
Document 14
FIRST PREFERRED SHIP MORTGAGE
Covering the whole of the Vessel
listed in the GRANTING CLAUSE
Exhibit 3
to
Security Agreement
18
Contract No. MA-13260
FIRST PREFERRED SHIP MORTGAGE
$153,091,000
ROWAN COMPANIES, INC.
Shipowner and Mortgagor
-----------------------
-----------------------
to
THE UNITED STATES OF AMERICA
Mortgagee
represented by the Secretary of Transportation
acting by and through the
Maritime Administrator
Maritime Administration, U.S. Department of Transportation
000 Xxxxxxx Xxxxxx, X.X.
Washington, D.C. 20590
Dated as of ____________
-----------------------
Covering the whole of the Vessel
listed in the
GRANTING CLAUSE
19
FIRST PREFERRED SHIP MORTGAGE
THIS FIRST PREFERRED SHIP MORTGAGE, effective as of _______________,
19__, is made by ROWAN COMPANIES, INC., a Delaware corporation (the "Shipowner"
and "Mortgagor") located at 0000 Xxxxxxx Xxxxx, 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, the Shipowner is the sole owner of the whole of the GORILLA V
more fully described in the Granting Clause below;
WHEREAS, the Shipowner has, in consideration of the issuance of
certain Guarantees (the "Guarantees") by the Secretary, pursuant to Title XI of
the Merchant Marine Act, 1936, as amended ("Title XI"), of the payment of the
unpaid interest on, and the unpaid balance of the principal of, the United
States Government Guaranteed Ship Financing Obligations, GORILLA V Series
issued by the Shipowner in the aggregate principal amount of $153,091,000 (the
"Obligations"), and pursuant to the terms and provisions of the Security
Agreement, dated December 17, 1996, between the Shipowner and the Secretary
(herein as it may be amended or supplemented, called the "Security Agreement"),
issued and delivered to the Secretary its promissory note dated December 17,
1996, payable to the Secretary in the principal amount of $153,091,000 (said
promissory note in the form attached to the Security Agreement as Exhibit 2
being herein called the "Secretary's Note"); and the Shipowner has agreed to
execute and deliver this First Preferred Ship Mortgage to the Secretary
(hereinafter referred to in this Mortgage as the "Mortgagee") for the purpose
of securing the Shipowner's obligations to the Secretary with respect to the
Guarantees and the payment of the principal of and interest on the Secretary's
Note in accordance with its terms, and the terms of the Security Agreement and
this Mortgage (the Mortgage, as the same may hereafter be amended or
supplemented in accordance with the terms hereof, herein called the
"Mortgage");
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
20
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, the whole of the Vessel described as follows: GORILLA
V, O.N._______, which Xxxxxx is more fully described in its certificate of
documentation, together with all of its boilers, engines, machinery, masts,
spares, rigging, boats, anchors, cables, chains, tackle, tools, pumps and
pumping equipment, 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 Vessel 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 job 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 subject
to the lien of this mortgage is to be held subject to the further agreements
and conditions hereinafter set forth.
ARTICLE FIRST
Section 1. The execution and delivery of this Mortgage and the
execution and delivery of the Secretary's Note have each been duly authorized
by the Shipowner and are not in contravention of any indenture or undertaking
to which the Shipowner is a party or by which it is bound.
Section 2. All of the covenants and agreements on the part of the
Shipowner 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;
2
21
compliance with applicable laws; maintenance of marine insurance; requisition
of title; and compliance with Chapter 313 of Title 46 of the United States
Code, which are set forth in, and all of the rights, immunities, powers and
remedies of the Secretary which are provided for in the Security Agreement
(including the Special Provisions thereof and the General Provisions of Exhibit
1 thereto), 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
true copies of the form of the Special Provisions of and Exhibit 1 to the
Security Agreement are annexed hereto.
Section 3. 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.
Section 4. This instrument is executed as and shall constitute an
instrument supplemental to the Security Agreement, and shall be construed in
connection with, and as part of, the Security Agreement.
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 the covenants, promises, stipulations and agreements of
the Shipowner 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 the covenants, promises, stipulations and agreements of the
Mortgagee in this Mortgage contained herein, 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. Any term used herein which is defined in the Security
Agreement and which is not specifically defined herein shall have the meaning
specified in 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. Section 31305, and any provision of this
Mortgage or of the Security
3
22
Agreement which would otherwise constitute such a waiver, shall to such extent
be of no force and effect.
Section 5. If the Secretary's Note shall have been satisfied and
discharged, and if the Shipowner shall pay or cause to be paid all other sums
that may have become secured under the Security Agreement and this Mortgage,
then this Mortgage and the estate and rights hereunder shall cease, determine,
and become null and void; and 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 FIFTY THREE MILLION NINETY ONE
THOUSAND DOLLARS AND NO/100's ($153,091,000) (together with any additional sums
owed by the Shipowner to the Secretary pursuant to the provisions of the
Security Agreement including, but not limited to, sections 2.14 and 6.05),
excluding interest, expenses, and fees (such as custodial costs and attorneys'
fees). The date of maturity is July 1, 2010.
4
23
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:
-----------------------------------
Senior Vice President
Date Signed:
---------------------
Attest:
-------------------------------
Secretary
CONSENTED TO:
UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
acting by and through the
MARITIME ADMINISTRATOR
By:
-----------------------------------
Secretary
Maritime Administration
5
24
ACKNOWLEDGEMENT
DISTRICT OF COLUMBIA )
) ss:
CITY OF WASHINGTON )
On this day _____ of ____________, 19__, before me, _________________,
a Notary Public in and for the District of Columbia, personally appeared
______________________, 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 or said corporation, and that
he/she signed his/her name thereto by like authority.
------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
[NOTARIAL SEAL]
6
25
ACKNOWLEDGEMENT
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 ______________.
------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
[NOTARIAL STAMP AND SEAL]
7
