EXHIBIT 10.34
-------------
AMENDMENT NO. 2
TO FIRST PREFERRED FLEET MORTGAGE
---------------------------------
Amendment No. 2 dated September 27, 1995 to the First
Preferred Fleet Mortgage dated December 17, 1993 (the
"Mortgage"), as amended, by ENSCO OFFSHORE COMPANY, a corporation
organized and existing under the laws of the State of Delaware,
with its principal place of business at 0000 Xxxxxxxx Xxxxx, 0000
Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, (the "Shipowner"), to BANKERS
TRUST COMPANY, not in its individual capacity, but solely as
Trustee, a New York banking corporation, with its principal place
of business at Four Albany Street, Fourth Floor, New York, New
York 10006 (the "Trustee").
WHEREAS, the Shipowner is the owner of 100% of the following
U.S. flag drilling rigs (the "Vessels"):
NAME OFFICIAL NO. HOME PORT
---- ------------ ---------
ENSCO 63 589096 New Orleans, LA
ENSCO 68 574668 New Orleans, LA
ENSCO 81 606512 New Orleans, LA
ENSCO 82 602912 New Orleans, LA
ENSCO 83 605536 New Orleans, LA
ENSCO 84 637544 New Orleans, LA
ENSCO 86 643110 New Orleans, LA
ENSCO 87 648969 New Orleans, LA
ENSCO 88 645637 New Orleans, LA
ENSCO 89 652440 New Orleans, LA
ENSCO 90 647859 New Orleans, LA
ENSCO 93 651385 New Orleans, LA
ENSCO 94 638685 New Orleans, LA
ENSCO 95 642112 New Orleans, LA
ENSCO 99 682070 New Orleans, LA
which Vessels have been duly registered in the name of the
Shipowner in accordance with the laws of the United States of
America; and
WHEREAS, the Mortgage mortgaged one hundred percent (100%)
of the Vessels, together with all of their boilers, engines,
machinery, masts, spars, sails, rigging, boats, anchors, chains,
tackle, apparel, furniture, fittings, equipment, drilling
equipment, pumps, drill pipes, collars, racking, housing, spare
parts and supporting inventory, vehicles and living quarters
(excluding equipment aboard the Vessels which is not owned by the
Shipowner) and all other appurtenances to the Vessels
appertaining or belonging, whether now owned or hereafter
acquired, whether on board or not, and all additions,
improvements and replacements made in or to such Vessels; and
WHEREAS, the Mortgage was originally received for record at
10:23 a.m. on December 17, 1993, at the U.S. Coast Guard Vessel
Documentation Office at the Port of New Orleans, Louisiana and
was recorded in Book PM-247 at page 109; and
WHEREAS, the Mortgage was granted by the Shipowner to the
Trustee for the purpose of securing the obligation of the
Shipowner to pay all amounts due and payable under that certain
Credit Facility Agreement dated as of December 15, 1993 (the
"Credit Agreement") among the Banks named therein (the "Banks"),
the Agents named therein, the Administrative Agent named therein,
the Shipowner and ENSCO Offshore U.K. Limited. ("ENSCO U.K.");
and
WHEREAS, a true and accurate copy of the Credit Agreement is
attached to the Mortgage as Exhibit A and forms a part thereof;
and
WHEREAS, pursuant to Amendment No. 1 to Credit Facility
Agreement dated as of November 1, 1994 ("Amendment No. 1"),
certain terms of the Credit Agreement were amended; and
WHEREAS, pursuant to Amendment No. 1 to First Preferred
Fleet Mortgage, the Mortgage was amended to reflect the changes
to the Credit Agreement effected by Amendment No. 1; and
WHEREAS, Amendment No. 1 to the Mortgage was received for
record at 9:35 a.m. on January 13, 1995 at the United States
Coast Guard Vessel Documentation Office for the Port of New
Orleans, Louisiana, and duly recorded in Book PM-9501, Instrument
206; and
WHEREAS, pursuant to the terms of the Amended and Restated
Credit Facility Agreement dated the date hereof (the "Restated
Agreement") among the Shipowner, ENSCO U.K., the Banks, the
Agents and the Administrative Agent, the Credit Agreement was
restated and certain of its provisions were amended to, among
other things, increase the Commitments of the Banks thereunder to
USD 130,000,000; and
WHEREAS, the Shipowner and the Trustee wish to amend the
Mortgage to reflect the changes to the Credit Agreement made by
the Restated Agreement.
NOW THEREFORE, THIS AMENDMENT NO. 2 WITNESSETH:
The Shipowner and the Trustee hereby agree to amend the
Mortgage as follows:
1. Exhibit A to the Mortgage is hereby replaced with the
Restated Agreement in the form of Exhibit A attached hereto.
2. Hereinafter each reference in the Mortgage, as amended,
to the Credit Agreement shall refer to the Restated Agreement.
3. Subsections 15(d), (e) and (f) of Article I of the
Mortgage are hereby amended to read as follows:
"(d) Subject to the provisions of Section 6.5 of
the Restated Agreement, all amounts of whatsoever
nature payable under any insurance shall be payable to
the Trustee for distribution first to itself and
thereafter to the Shipowner or others as their
interests may appear. Nevertheless, until otherwise
required by the Trustee by notice to the underwriters,
(i) amounts payable under any insurance on the Vessels
with respect to the protection and indemnity risks
shall be paid directly to the Shipowner to reimburse it
for any loss, damage or expense incurred by it and
covered by such insurance or to the person to whom any
liability covered by such insurance has been incurred,
and (ii) amounts payable under any insurance with
respect to the Vessels involving any damage to any
Vessel not constituting an actual or constructive total
loss, shall be paid by the underwriters directly for
the repair, salvage or other charges involved or, if
the Shipowner shall have first fully repaired the
damage or paid all of the salvage or other charges,
shall be paid to the Shipowner as reimbursement
therefor, provided, no amount in excess of
USD 2,000,000 shall be paid from any insurances without
the prior written consent of the Trustee.
(e) Subject to the provisions of Section 6.5 of
the Restated Agreement, in the event of an actual or
constructive total loss or a compromised constructive
total loss or requisition of any Vessel, all insurance
payments therefor shall be paid to the Trustee and
applied to the Obligations in accordance with the terms
of Article II, Section 206 of the Trust Indenture. The
Shipowner shall not declare or agree with underwriters
that any Vessel is a constructive or compromised,
agreed or arranged constructive total loss without the
prior written consent of the Trustee.
(f) Subject to the provisions of Section 6.5 of
the Restated Agreement, in the event of an actual or
constructive total loss of any Vessel, the Trustee
shall retain out of the insurance payments received on
account of such loss and held by the Trustee in
accordance with Section 305 of the Trust Indenture, any
sum or sums that shall be or become owing the Trustee
under this Mortgage for the cost, if any, of collecting
the insurance, which sum or sums shall become the sole
property of the Trustee, and pay the balance to the
Banks for application pursuant to Section 6.5 of the
Restated Agreement."
4. Article III, Section 9 of the Mortgage is hereby
amended to read as follows:
"SECTION 9. The maximum principal amount that may be
outstanding under this Mortgage at any one time is Xxx
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx Dollars (USD
130,000,000) and the purpose of recording this Mortgage
as required by Chapter 313 of Title 46 of the United
States Code, the total amount of this Mortgage is USD
130,000,000 and interest, fees and performance of
mortgage covenants. The discharge amount is the same
as the total amount."
5. For purposes of recording this Amendment No. 2 to First
Preferred Fleet Mortgage pursuant to 46 U.S.C. Section 31321, it
amends mortgage covenants. The total amount of the Mortgage is
increased to USD 130,000,000 plus interest and performance of
mortgage covenants.
6. Except as specifically amended herein, the Mortgage
shall remain in full force and effect.
7. All capitalized terms used herein but not defined
herein shall have the meanings given to them in the Mortgage.
8. THIS AMENDMENT NO. 2 TO FIRST PREFERRED FLEET MORTGAGE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE UNITED STATES OF AMERICA AND, TO THE EXTENT THEY DO NOT
APPLY, TO THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS HEREOF, the parties hereto have duly executed
this Amendment No. 2 to First Preferred Fleet Mortgage on the
date first written above.
ENSCO OFFSHORE COMPANY
By: /s/ XXXXXX X. XXXXX
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
BANKERS TRUST COMPANY,
AS TRUSTEE
By: /s/ XXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
ACKNOWLEDGEMENT
STATE OF TEXAS |
|
COUNTY OF XXXXXX |
BEFORE ME, XXXXXXX X. XXXXXX , a notary public
in and for said county and state, on this day personally appeared
Xxxxxx X. Xxxxx, known to me to be the person whose name is
subscribed to the foregoing instrument and known to me to be the
Assistant Secretary of ENSCO Offshore Company, a corporation
organized under the laws of DELAWARE, and acknowledged to me that
he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this 27TH day of
September, 1995.
/s/ XXXXXXX X. XXXXXX
---------------------------
Notary Public
ACKNOWLEDGEMENT
STATE OF NEW YORK |
|
COUNTY OF NEW YORK |
BEFORE ME, XXXXXXXX XXXXXX , a notary public in
and for said county and state, on this day personally appeared
XXXXXX XXXXXXXX , known to me to be the person whose name is
subscribed to the foregoing instrument and known to me to be the
ASST. VICE PRESIDENT of Bankers Trust Company, a New York
banking corporation and acknowledged to me that he executed said
instrument for the purposes and consideration therein expressed,
and as the act of said association.
Given under my hand and seal of office this 26TH day of
September, 1995.
/s/ XXXXXXXX XXXXXX
---------------------------
Notary Public
