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Document 4.01
COMMITMENT TO GUARANTEE OBLIGATIONS
by
THE UNITED STATES OF AMERICA
Accepted by
ENSCO OFFSHORE COMPANY
Shipowner
(Under Title XI, Merchant Marine Act, 1936,
as amended, and in effect on the
date of this Guarantee Commitment)
TABLE OF CONTENTS
Document
Commitment to Guarantee Obligations
Schedule One -- Form of Opinion of Counsel
Appendix IA -- Form of Credit Agreement
Appendix IB -- Form of Bond Purchase Agreement
Appendix II -- Form of Trust Indenture
Schedule A -- Schedule of Definitions
to Trust Indenture
Exhibit 1 -- General Provisions Incorporated into the Trust
Indenture by Reference
Exhibit 2 -- Forms of Obligation, Guarantee and Trustee's
Authentication Certificate
Exhibit 3 -- Form of Authorization Agreement
Exhibit
4 -- Form of Secretary's Supplemental Indenture
Appendix III -- Form of Security
Agreement
Exhibit 1 -- General Provisions Incorporated into the Security
Agreement by Reference
Schedule X -- Schedule of Definitions
Exhibit 2 -- Form
of Secretary's Note
Exhibit 3 -- Form of First Preferred Fleet Mortgage
Exhibit
4 -- Form of Title XI Reserve Fund and Financial Agreement
Exhibit 5 -- Form of
Consent of Shipyard
Exhibit 6 -- Construction Contract
Exhibit 7 -- Form of
Depository Agreement
Contract No. MA-13550
COMMITMENT TO GUARANTEE OBLIGATIONS
by
THE UNITED STATES OF AMERICA
Accepted by
ENSCO OFFSHORE COMPANY
Shipowner
THIS COMMITMENT TO GUARANTEE
OBLIGATIONS, dated December , 1999 (the "Guarantee Commitment"), 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 ENSCO OFFSHORE COMPANY, a Delaware corporation (the
"Shipowner").
RECITALS:
A. The Shipowner will be the sole
owner of the semi-submersible drilling unit now known as the ENSCO 7500 (the
("Vessel") currently under construction pursuant to the Construction Contract
with Friede Goldman Offshore Texas, Limited Partnership (formerly known as
TDI-Halter, L.P.), a Louisiana limited partnership (the "Shipyard").
B. To aid in financing the
construction of the Vessel, the Shipowner will borrow an aggregate principal
amount equal to no more than 87.5% of the Actual Cost of the Vessel, as of the
Note Closing Date. To accomplish such financing, the Shipowner has accepted this
Guarantee Commitment subject to the terms and conditions set forth herein.
C. As one means of financing the
construction of the Vessel, the Shipowner has entered into the Credit Agreement
(the "Credit Agreement") with Govco, Inc. (the "Lender") providing for the
issuance by the Shipowner, on the Note Closing Date, of one or more promissory
notes in the aggregate principal amount of $194,855,000 to be designated
"United States Government Guaranteed Ship Financing Note, 1999 Series"
(the "Note") having the maturity date and interest rate set forth therein,
and providing for one or more advances (each, an "Advance") to the Shipowner of
the principal amount of the Note.
D. On or before the Bond Closing
Date, the Shipowner shall enter into one or more Bond Purchase Agreements
providing for the sale and delivery of obligations in the aggregate principal
amount of up to $194,736,000 to be designated "United States Government
Guaranteed Ship Financing Bonds, 7500 Series" (the "Bonds" and
together with the Note, the "Obligations"), having the maturity date and
interest rate set forth therein, to repay the amounts outstanding under the
Note.
E. As security for the Guarantees
and the Secretary's Note, the Shipowner will execute and deliver the Security
Agreement, Contract No. MA-13552, and the following agreements shall be executed
and delivered: the Indenture, the Authorization Agreement, Contract No.
MA-13551, the Secretary's Note, the Mortgage, Contract No. MA-13554 (upon
delivery of the Vessel to the Shipowner), the Financial Agreement, Contract
MA-13553, and the Depository Agreement, Contract No. MA-13555.
W I T N E S S E T H:
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 Actual Cost of the Vessel is
$222,691,757. Prior to the Note Closing Date, the Secretary, in its discretion,
may redetermine the Actual Cost of the Vessel. On the Note Closing Date, the
aggregate principal amount of the Note will not exceed 87.5% 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 Note is satisfactory, (2) payments of principal
required by the Note is satisfactory and (3) the interest rate to be borne by
the Note to be issued on the Note 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, Mortgage (on delivery of the Vessel), Financial
Agreement, and Depository Agreement on the Note Closing Date or the Bond Closing
Date, as the case may be, pursuant to the terms of the Guarantee Commitment.
ARTICLE III
The Obligations
The Obligations shall be as provided
in the Indenture and in the form of the Obligations annexed as Exhibits 2A and
2B 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
A. The obligation of the Secretary
to execute and deliver the Guarantee on the Note Closing Date shall be subject
to the following conditions unless waived in writing by the Secretary:
(a) the Note Closing Date
shall occur on or prior to March 23, 2000;
(b) the Shipowner and the Shipyard
shall have executed and delivered to the Secretary a copy of the Construction
Contract 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, Financial Agreement,
Trust Indenture, Secretary's Note, Note, Credit Agreement, and Depository Agreement;
(d) the Indenture Trustee shall have
executed, in the form attached hereto, the Authorization Agreement and Trust
Indenture, the Depository shall have executed the Depository Agreement; and the
Obligee 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 Note; (iv) two executed originals of the legal
opinion issued under section (j) of this Article; (v) two copies of the legal
opinion delivered to the Obligees pursuant to the Credit Agreement, and (vi) two
originals of all other documents delivered by the Shipowner, Indenture Trustee,
the Obligees or the Depository in connection with this Closing;
(f) the Shipowner shall have
executed an Officer's Certificate representing and warranting the truth of the
following statements as of the Note Closing Date:
(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.
(g) 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;
(h) the Shipowner shall have
complied in all material respects with its agreements under this Guarantee
Commitment;
(i) 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;
(j) 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
(except for the assets covered by the Mortgage and the marine insurances on the
Vessel); and (ii) all filings, recordings, notices and other actions required to
perfect the Secretary's interests in the Security (except for the assets covered
by the Mortgage and the marine insurances on the Vessel) and to render such
security interests valid and enforceable under applicable State law have been
duly effected;
(k) 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;
(l) on the Note Closing Date, the
qualifying requirements set forth in Section 8 of the Financial Agreement shall
have been complied with and certified to as required therein;
(m) at least ten days prior to the
Note Closing Date, there shall have been delivered to the Secretary, pro forma
balance sheets for the Guarantor and the Shipowner as of the Note Closing Date,
certified by an officer of the Guarantor and Shipowner, respectively, showing,
among other things, all non-Title XI debt of the Shipowner;
(n) on the Note Closing Date, the
Shipowner shall certify that all non-Title XI loans to the Shipowner relating to
the Vessel, if any, have been discharged or subordinated satisfactorily to the
Secretary;
(o) at least ten days prior to the
Note Closing Date, the Shipowner shall have provided or caused to be provided to
the Secretary satisfactory evidence of builder's risk insurance; and
(p) on the Note Closing Date, the
Shipowner shall have presented an Officer's Certificate to the Secretary
certifying that the Halter Guaranty (as defined in the Security Agreement)
remains in full force and effect.
B. Each Advance shall be made
subject to the following conditions having been fulfilled unless waived in
writing by the Secretary:
(a) the Shipowner shall have
executed an Officer's Certificate representing and warranting the truth of the
following statements as of the date of such Advance:
(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.
(b) the Shipowner shall have
complied in all material respects with its agreements under this Guarantee
Commitment;
(c) 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;
(d) A Responsible Officer of the
Shipowner shall deliver an Officer's Certificate, in form and substance
satisfactory to the Secretary, stating that (A) there is neither a Default under
the Construction Contract nor the Security Agreement; (B) there have been no
occurrences which have or would adversely and materially affect the condition of
the Vessel, its hull or any of its component parts; (C) the amounts of the
Request in connection with such Advance is in accordance with the Construction
Contract including the approved disbursement schedule and each item in these
amounts is properly included in the Secretary's approved estimate of Actual
Cost; (D) with respect to the Request, once the Shipyard is paid there will be
no liens or encumbrances on the applicable Vessel, its hull or component parts
for which the withdrawal is being requested except for those already approved by
the Secretary; and (E) if the Vessel has already been delivered, it is in class
and is being maintained in the highest and best condition. The Shipowner shall
also attach an Officer's Certificate of the Shipyard, in form and substance
satisfactory to the Secretary, stating that there are no liens or encumbrances
as provided in clause (D) of this subsection and attaching the invoices and
receipts supporting each proposed Advance to the satisfaction of the Secretary.
C. The Bond Closing shall be subject
to the following conditions having been fulfilled unless waived in writing by
the Secretary:
(a) the Bond Closing Date shall
occur on or prior to the earlier of (i) eighteen (18) months following the
Delivery or (ii) June 30, 2002;
(b) the Shipowner shall have
executed and delivered the following documents in the form attached hereto: the
Supplemental Trust Indenture, each Bond, each Bond Purchase Agreement and the
Mortgage (if the Vessel shall have been delivered);
(c) the Indenture Trustee shall have
executed, in the form attached hereto, the Supplemental Trust Indenture; and the
Obligee shall have executed the Bond Purchase Agreement;
(d) the following documents shall
have been delivered to the Secretary: (i) one executed counterpart and one copy
of each Bond Purchase Agreement; (ii) two executed counterparts of the
Supplemental Indenture, (iii) two specimen copies of the Bonds; (iv) two
executed originals of the legal opinion issued under section (j) of this Section
C.; (v) two copies of the legal opinion delivered to the Obligees pursuant to
the Bond Purchase Agreement, and (vi) two originals of all other documents
delivered by the Shipowner, the Obligees or Indenture Trustee in connection with
this Closing;
(e) the Shipowner shall have
executed an Officer's Certificate representing and warranting the truth of the
following statements as of the Bond Closing Date:
(i) each
of the representations and warranties set out at Section 2.01 of the Genera
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.
(f) the Shipowner shall have
complied in all material respects with its agreements under this Guarantee
Commitment;
(g) 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;
(h) on the Bond Closing Date, the
qualifying requirements set forth in Section 8 of the Financial Agreement shall
have been complied with and certified to as required therein;
(i) the Shipowner shall have
provided an Officer's Certificate certifying to the Secretary that the Drilling
Contract (as defined in the Security Agreement) is in full force and effect;
(j) there shall have been delivered
to the Secretary by the Shipowner an opinion of counsel acceptable to the
Secretary, which shall include, among other things, an opinion to the effect
that: (i) by the terms of the Security Agreement, the Secretary continues to
maintain a fully perfected, first priority security interest in each of the
assets which constitutes the Security; and (ii) no additional filings,
recordings, notices and other actions are required to perfect the Secretary's
interests in the Security or to render such security interests valid and
enforceable under applicable State law; and
(k) the Shipowner and the Secretary
shall have executed an Endorsement to the Secretary's Note extending the
maturity date of the Secretary's Note to the maturity date of the Bonds.
D. On the Delivery Date, the
following conditions shall have been fulfilled by the Shipowner unless waived in
writing by the Secretary:
(a) the Shipowner shall have executed and delivered the Mortgage;
(b) the following documents shall
have been delivered to the Secretary: (i) two executed originals of the legal
opinion issued under section (h) of this Section D.; (ii) a current Confirmation
of Class with respect to the Vessel issued by the American Bureau of Shipping,
(iii) an appraisal of the Vessel in form and substance satisfactory to the
Secretary, and (iv) two duplicate photocopies of the original Builder's
Certificate for the Vessel from the Shipyard, certifying, among other things,
that the Vessel has been built in accordance with the terms and specifications
of the Construction Contract and is delivered to the Shipowner free and clear of
all liens and encumbrances;
(c) the Shipowner shall have
executed an Officer's Certificate representing and warranting the truth of the
following statements as of the Delivery Date:
(i) each of
the representations and warranties set out at Section 2.01 of the General Provisions of the
Security Agreement in Appendix III;
(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.
(d) the Shipowner shall have
complied in all material respects with its agreements under this Guarantee
Commitment;
(e) 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;
(f) at least ten days prior to the
Delivery Date, the Shipowner shall have provided or cause to be provided to the
Secretary satisfactory evidence of marine insurance as required by the Security
Agreement;
(g) the Shipowner shall have
provided an Officer's Certificate certifying to the Secretary that the Drilling
Contract (as defined in the Security Agreement) is in full force and effect; and
(h) there shall have been delivered
to the Secretary by the Shipowner an opinion of counsel acceptable to the
Secretary, which shall include, among other things, an opinion to the effect
that: (i) by the terms of the Mortgage, the Shipowner has granted to the
Secretary a fully perfected, first priority security interest in the Vessel and
the marine insurances on the Vessel; and (ii) all filings, recordings, notices
and other actions required to perfect the Secretary's interests in the Vessel
and the marine insurances on the Vessel and to render such security interests
valid and enforceable under applicable Federal law have been duly effected.
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 Note 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 Agreement
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.
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.
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