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EXHIBIT 10.20
RESTATED CREDIT AGREEMENT
AMONG
GLOBAL INDUSTRIES, LTD.
AS BORROWER
AND
GLOBAL PIPELINES PLUS, INC.,
GLOBAL DIVERS AND CONTRACTORS, INC.,
GLOBAL MOVIBLE OFFSHORE, INC.,
PIPELINES, INCORPORATED,
GLOBAL INDUSTRIES OFFSHORE, INC., AND
GLOBAL INTERNATIONAL VESSELS, LTD.
AS GUARANTORS
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
AND THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS BANKS
AND
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION,
AS AGENT
APRIL 17, 1997
2
TABLE OF CONTENTS
Page No.
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Commitments of the Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Terms of Revolving Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Procedure for Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Procedure for Obtaining Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(e) Mandatory Reduction of Revolving Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(f) Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(g) Voluntary Reduction of Revolving Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Notes Evidencing Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) Form of Revolving Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Issuance of Additional Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(e) Payment of Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(f) Payment to Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(g) Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(h) Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(i) Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4. Interest Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Conversion Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Recoupment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5. Special Provisions Relating to Eurodollar Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Unavailability of Funds or Inadequacy of Pricing . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Reserve Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Change in Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) Option to Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(f) Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(g) Payments Not at End of Interest Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(h) Replacement Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6. Collateral and Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Unused Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) The Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(c) Agency Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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8. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Mandatory Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Creation and Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Power and Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Binding Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(d) No Legal Bar or Resultant Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(e) No Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(f) Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(g) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(h) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(i) Taxes; Governmental Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(j) Titles, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(k) Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(l) Use of Proceeds; Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(m) Location of Business and Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(n) Compliance with the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(o) No Material Misstatements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(p) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(q) Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(r) Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(s) Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(t) Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(u) Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10. Conditions of Lending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
11. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(a) Financial Statements and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(b) Certificates of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(c) Taxes and Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(d) Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(e) Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(f) Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(g) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(h) Accounts and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(i) Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(j) Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(k) ERISA Information and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(l) Environmental Reports and Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(m) Change of Principal Place of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(n) Payables and Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(o) New Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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12. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(a) Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(b) Current Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(c) Minimum Fixed Charge Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(d) Maximum Total Debt Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(e) Pre-Tax Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(f) Consolidations, Mergers and Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(g) Debts, Guaranties and Other Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(h) Nature of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(i) Transactions with Subsidiaries and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(j) Change in Key Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(k) Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(l) Loans and Advances to Unaffiliated Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(m) Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(n) Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(o) Stock of Global Offshore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
14. The Agent and the Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(a) Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(b) Note Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(c) Consultation with Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(d) Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(e) Resignation or Removal of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(f) Responsibility of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(g) Independent Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(h) Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(i) Benefit of Section 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(j) Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(k) Assumption as to Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(l) Other Financings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(m) Interests of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(n) Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
15. Exercise of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
16. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
17. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
18. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
19. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
20. Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
21. Maximum Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
22. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
23. Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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24. Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
25. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
26. Parties Bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
27. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
28. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
29. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
30. Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
31. Jury Trial Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
32. La. R.S. 6:1121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
33. Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
34. Financial Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
EXHIBITS
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Exhibit "A" - Notice of Borrowing
Exhibit "B" - Revolving Note
Exhibit "C" - Continuing Guaranty
Exhibit "D" - Certificate of Compliance
Exhibit "E" - Form of Assignment and Acceptance Agreement
SCHEDULES
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Schedule 1 - Financial Condition
Schedule 2 - Liabilities
Schedule 3 - Litigation
Schedule 4 - Subsidiaries
Schedule 5 - Environmental Matters
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RESTATED CREDIT AGREEMENT
THIS RESTATED CREDIT AGREEMENT (hereinafter referred to as the
"Agreement") executed as of the 17th day of April, 1997, by and among GLOBAL
INDUSTRIES, LTD., a Louisiana corporation (the "Borrower"), GLOBAL PIPELINES
PLUS, INC., a Louisiana corporation ("Plus"), GLOBAL DIVERS AND CONTRACTORS,
INC., a Louisiana corporation ("Divers"), GLOBAL MOVIBLE OFFSHORE, INC., a
Louisiana corporation ("Movible"), PIPELINES, INCORPORATED, a Louisiana
corporation ("Pipelines"), GLOBAL INDUSTRIES OFFSHORE, INC., a Delaware
corporation ("Industries Offshore") and GLOBAL INTERNATIONAL VESSELS, LTD., a
Cayman Islands corporation ("International Vessels") (Plus, Divers, Movible,
Pipelines, Industries Offshore and International Vessels are collectively
called the "Guarantors"), BANK ONE, LOUISIANA, NATIONAL ASSOCIATION, a national
banking association ("Bank One") and each of the financial institutions which
is a party hereto (as evidenced by the signature pages to this Agreement) or
which may from time to time become a party hereto pursuant to the provisions of
Section 29 hereof or any successor or assignee thereof (hereinafter
collectively referred to as "Banks", and individually, "Bank") and Bank One, as
Agent (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower, the Guarantors and Bank One entered into a Credit
Agreement dated as of February 16, 1996 (the "Credit Agreement") under the
terms of which Bank One agreed to provide Borrower with a revolving loan
facility in amounts of up to $50,000,000.00; and
WHEREAS, pursuant to a First Amendment and Supplement to Credit
Agreement dated as of November 20, 1996 (the "First Amendment") under the terms
of which Bank One agreed to provide Borrower with an additional revolving
overline of credit in amounts of up to $25,000,000.00; and
WHEREAS, the Borrower has requested that Bank One consolidate the
revolving loan facility and the revolving overline loan facility into one
facility and that it increase the maximum amount available under such loan
facility to $85,000,000.00, Agent and the Banks are willing to consolidate such
facilities and increase the amount thereof to Borrower.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereby agree to restate the Credit
Agreement as follows:
1. DEFINITIONS. When used herein the terms "Agent," "Agreement,"
"Bank", "Banks", "Bank One", "Borrower", "Divers", "Guarantor", "Guarantors"
"Industries Offshore", "International Vessels", "Movible", "Pipelines" and
"Plus" shall have the meanings indicated above. When used herein the following
terms shall have the following meanings:
"Advance or Advances" shall mean a loan or loans hereunder.
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"Affiliate" shall mean any Person which, directly or
indirectly, controls, is controlled by or is under common control with
the relevant Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any Person,
shall mean a member of the board of directors, a partner or an officer
of such Person, or any other Person with possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, through the ownership (of
record, as trustee, or by proxy) of voting shares, partnership
interests or voting rights, through a management contract or
otherwise. Any Person owning or controlling directly or indirectly
ten percent or more of the voting shares, partnership interests or
voting rights, or other equity interest of another Person shall be
deemed to be an Affiliate of such Person.
"Assignment and Acceptance" shall mean a document
substantially in the form of Exhibit "D" hereto.
"Base Rate" shall mean, as of any date, the fluctuating rate
of interest per annum established from time to time by Bank One,
Texas, N.A. as its Base Rate (which rate of interest may not be the
lowest, best or most favorable rate of interest which Agent may charge
on loans to its customers). Each change in the Base Rate shall become
effective without prior notice to Borrower automatically as of the
opening of business on the date of such change in the Base Rate.
"Base Rate Interest Period" shall mean, with respect to any
Base Rate Loan, the period ending on the last day of each month,
provided, however, that (i) if any Base Rate Interest Period would end
on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day, and (ii) if any Base
Rate Interest Period would otherwise end after the Revolving Maturity
Date such Interest Period shall end on the Revolving Maturity Date.
"Base Rate Loans" shall mean any loan during any period which
bears interest based upon the Base Rate or which would bear interest
based upon the Base Rate if the Maximum Rate ceiling was not in effect
at that particular time.
"Base Rate Margin" shall mean 0%.
"Borrowing Date" shall mean the date elected by Borrower
pursuant to Section 2(b) hereof for an Advance on the Revolving Loan.
"Business Day" shall mean the normal banking hours during any
day (other than Saturdays or Sundays) that banks are legally open for
business in Lafayette, Louisiana and New York, New York.
"Capital Lease" shall mean any lease in respect of which the
obligations thereunder constitute Capital Lease Obligations.
"Capitalized Lease Obligations" shall mean, without
duplication, all obligations of any Person to pay rent or amounts
under any Lease of, or other arrangement conveying the right to use,
real or personal property, a combination thereof, which obligation
shall have been or should be in accordance with GAAP, capitalized on
the books of such Person.
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8
"Change of Key Management" shall occur if ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ever
ceases to act as Chief Executive Officer of Borrower and a replacement
for such officer reasonably acceptable to Agent, is not appointed
within a reasonable time thereafter.
"Consolidated Subsidiaries" shall mean those Subsidiaries that
are required by GAAP to be included in the consolidated Financial
Statements of Borrower.
"Current Assets" shall mean the total of Borrower's
consolidated current assets, determined in accordance with GAAP.
"Current Liabilities" shall mean the total of Borrower's
consolidated current obligations determined in accordance with GAAP.
"Debt" shall mean as to Borrower and any Consolidated
Subsidiary, all obligations and liabilities of Borrower or such
Consolidated Subsidiary to any other Person including, without
limitation, all debts, claims, overdrafts and indebtedness,
heretofore, now and/or from time to time hereafter owing, due or
payable, however evidenced, created, incurred, acquired or owing and
however arising, whether under written or oral agreement, operation of
law or otherwise as shown in Borrower's Financial Statements.
"Default" shall mean any Event of Default and the occurrence
of an event or condition which would with the giving of any requisite
notice and/or passage of time or both constitute an Event of Default.
"Defaulting Bank" is used herein as defined in Section 3(f)
hereof.
"EBITDA" shall mean Borrower's consolidated earnings before
interest, taxes, depreciation and amortization.
"Effective Date" shall mean the date of this Agreement.
"Eligible Assignee" shall mean any of (i) a Bank or any
Affiliate of a Bank; (ii) a commercial bank organized under the laws
of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (iii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000.00, provided that such bank is acting
through a branch or agency located in the United States; and (iv) a
Person that is primarily engaged in the business of commercial banking
and that (A) is a subsidiary of a Bank, (B) a subsidiary of a Person
of which a Bank is a subsidiary, or (C) a Person of which a Bank is a
subsidiary.
"Environmental Laws" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Super Fund Amendments and Reauthorization Act of 1986,
42 U.S.C.A. Section 9601, etseq., the Resource Conservation and
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9
Recovery Act, as amended by the Hazardous Solid Waste Amendment of
1984, 42 U.S.C.A. Section 6901, et seq., the Clean Air Act, 42
U.S.C.A. Section 1251, et seq., the Toxic Substances Control Act, 15
U.S.C.A. Section 2601, etseq., The Oil Pollution Act of 1990, 33
U.S.G. Section 2701, et seq., and all other laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, order and restrictions of any federal, state, county,
municipal and other governments, departments, commissions, boards,
agencies, courts, authorities, officials and officers, domestic or
foreign, relating to air pollution, water pollution, noise control
and/or the handling, discharge, disposal or recovery of on-site or
off-site asbestos or "hazardous substances" as defined by 42 U.S.C.
Section 9601, et seq., as amended, as each of the foregoing may be
amended from time to time.
"Environmental Liability" shall mean any claim, demand,
obligation, cause of action, order, violation, damage, injury,
judgment, penalty or fine, cost of enforcement, cost of remedial
action or any other costs or expense whatsoever, including reasonable
attorneys' fees and disbursements, resulting from the violation or
alleged violation of any Environmental Law or the imposition of any
Environmental Lien (as hereinafter defined) which could reasonably be
expected to individually or in the aggregate have a Material Adverse
Effect.
"Environmental Lien" shall mean a Lien in favor of any court,
governmental agency or instrumentality or any other Person (i) for any
Environmental Liability or (ii) for damages arising from or cost
incurred by such court or governmental agency or instrumentality or
other person in response to a release or threatened release of
asbestos or "hazardous substance" into the environment, the imposition
of which Lien could reasonably be expected to have a Material Adverse
Effect.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Eurodollar Business Day" shall mean a Business Day on which
dealings in U.S. Dollar deposits are carried on in the London
interbank market.
"Eurodollar Interest Period" With respect to any Eurodollar
Loan (i) initially, the period commencing on the date such Eurodollar
Loan is made and ending one (1), two (2) or three (3) months
thereafter as selected by the Borrowers pursuant to Section 4(a)(ii),
and (ii) thereafter, each period commencing on the day following the
last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one (1), two (2) or three (3) months
thereafter, as selected by the Borrowers pursuant to Section 4(a)(ii);
provided, however, that (i) if any Eurodollar Interest Period would
otherwise expire on a day which is not a Eurodollar Business Day, such
Interest Period shall expire on the next succeeding Eurodollar
Business Day unless the result of such extension would be to extend
such Interest Period into the next calendar month, in which case such
Interest Period shall end on the immediately preceding Eurodollar
Business Day, (ii) if any Eurodollar Interest Period begins on the
last Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) such Interest Period shall end on
the last Eurodollar Business Day of a calendar month, and (iii) any
Eurodollar Interest Period which would otherwise expire after the
Revolving Maturity Date shall end on such Revolving Maturity Date.
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"Eurodollar Loan" shall mean any loan during any period which
bears interest at the Eurodollar Rate, or which would bear interest at
such rate if the Maximum Rate ceiling was not in effect at a
particular time.
"Eurodollar Margin" shall mean, with respect to each
Eurodollar Loan:
(i) one and three-fourths percent (1.75%) per
annum whenever Borrower's ratio of Funded Debt to EBITDA is
greater than 2.25 to 1.0;
(ii) one and one-half percent (1.50%) per annum
whenever Borrower's ratio of Funded Debt to EBITDA is greater
than 1.75 to 1.0 but less than or equal to 2.25 to 1.0;
(iii) one and one-quarter percent (1.25%) per annum
whenever Borrower's ratio of Funded Debt to EBITDA is greater
than 1.25 to 1.0 but less than or equal to 1.75 to 1.0;
(iv) one percent (1%) per annum whenever
Borrower's ratio of Funded Debt to EBITDA is greater than .75
to 1.0 but less than or equal to 1.25 to 1.0; or
(v) three quarters of one percent (.75%) per
annum whenever Borrower's ratio of Funded Debt to EBITDA is
less than or equal to .75 to 1.0.
For the purposes of calculating the Eurodollar Margin, Borrower's
ratio of Funded Debt to EBITDA shall be calculated as of the end of
each fiscal quarter beginning June 30, 1997. Until June 30, 1997, the
Eurodollar Margin shall be one percent (1%) per annum.
"Eurodollar Rate" shall mean with respect to any Eurodollar
Interest Period pertaining to any Eurodollar Loan, the rate per annum
equal to the rate quoted by the Bloomberg Financial Market Service or
Telerate or a recognized reporting service acceptable to Agent in its
sole discretion at approximately 9:00 a.m. Lafayette, Louisiana time
(or as soon thereafter as is practicable) on the date that is two (2)
Business Days prior to the first day of the Eurodollar Interest Period
for the number of days of such Eurodollar Interest Period and in an
amount of the Eurodollar Loan to which such Eurodollar Interest Period
applies. The Eurodollar Rate determined by Agent with respect to a
particular Eurodollar Interest Period shall be fixed at such rate for
the duration of such Eurodollar Interest Period.
"Event of Default" is used herein as defined in Section 13
hereof.
"Financial Statements" shall mean balance sheets, income
statements, statements of cash flow and appropriate footnotes and
schedules, prepared in accordance with GAAP.
"Fixed Charge Ratio" shall mean Net Cash Flow plus Fixed Costs
divided by current maturities of long-term Debt plus interest expense
and Fixed Costs.
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"Fixed Costs" shall mean Borrower's consolidated Capital Lease
Obligations due in one (1) year plus all consolidated rental expenses,
as determined in accordance with GAAP.
"Funded Debt" shall mean indebtedness created by the Borrower
and/or the Consolidated Subsidiaries, issued or incurred for (i)
borrowed money (whether by loan or the issuance and sale of debt
securities); (ii) obligations to pay the deferred purchase or
acquisition price of property or services, other than trade accounts
payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business; (iii) Debt of others
secured by a Lien on the property of Borrower and/or Consolidated
Subsidiaries whether or not the respective Debt so secured has been
assumed; (iv) letter of credit obligations; and (v) Capital Leases or
non-cancellable operating leases.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"Global Offshore" shall mean Global Offshore International,
Ltd.
"Guaranties" shall mean the continuing guaranties of each of
the Guarantors in favor of the Banks which obligate the Guarantors in
solido with the Borrower, which continuing Guaranty shall be in form
and substance satisfactory to the Agent and its counsel.
"Interest Payment Date" shall mean the last day of each
Interest Period.
"Interest Period" shall mean any Base Rate Interest Period or
Eurodollar Interest Period.
"Late Charge Rate" shall mean a late charge on all payments of
interest past due for more than ten (10) days equal to the greater of
5% of the delinquent interest or $25.00.
"Letters of Credit" is used herein as defined in Section 2(c)
hereof.
"Lien" shall mean any mortgage, deed of trust, pledge,
security interest, assignment, encumbrance or lien (statutory or
otherwise) of every kind and character.
"Loan Documents" shall mean this Agreement, the Note, the
Guaranties and all other documents executed in connection with the
transaction described in this Agreement.
"Majority Banks" shall mean Banks holding 66-2/3% or more of
the Revolving Commitments, one of which must be the Agent.
"Material Adverse Effect" shall mean any circumstance or event
which has a material adverse effect on (i) the assets or properties,
liabilities, financial condition, business or operations, of Borrower
and its Consolidated Subsidiaries, taken as a whole,
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from the facts represented or warranted in this Agreement or any other
Security Instrument, or (ii) the ability of Borrower and its
Consolidated Subsidiaries, taken as a whole, to carry out their
respective businesses as of the date of this Agreement or as proposed
at the date of this Agreement to be conducted or to meet their
obligations under the Note, this Agreement or the other Loan Documents
on a timely basis.
"Maximum Rate" shall mean at any particular time in question,
the maximum non-usurious rate of interest which under applicable law
may then be charged on the Note. If such Maximum Rate changes after
the date hereof, the Maximum Rate shall be automatically increased or
decreased, as the case may be, without notice to Borrower from time to
time as the effective date of each change in such Maximum Rate.
"Net Cash Flow" shall mean Net Income plus depreciation,
amortization and interest expense minus any consolidated cash
dividends paid as of the end of each fiscal quarter for the previous
twelve (12) months ending on such date.
"Net Income" shall mean Borrower's consolidated net income
before income taxes, calculated in accordance with GAAP.
"Note or Notes" shall mean the Revolving Notes substantially
in the form of Exhibit "B" hereto issued or to be issued hereunder to
each Bank, respectively, to evidence the indebtedness to such Bank
arising by reason of the Advances on the Revolving Loan, together with
all modifications, renewals and extensions thereof or any part
thereof.
"NRSRO" shall mean the following nationally recognized
statistical rating organizations: Standard & Poors; ▇▇▇▇▇'▇; ▇▇▇▇ &
▇▇▇▇▇▇; Fitch, ▇▇▇▇▇▇▇▇; Bankwatch and International Bank Credit
Analysis.
"Other Financing" is used herein as defined in Section 14(l)
hereof.
"Payor" is used herein as defined in Section 3(h) hereof.
"Permitted Liens" shall mean (i) Liens for taxes not yet due
or which are being contested in good faith and by appropriate
proceedings; (ii) maritime, carriers', warehousemen's, mechanic's,
materialmen's, repairmen's or other like Liens arising or discharged
in the ordinary course of business or which are being contested in
good faith and by appropriate proceedings; (iii) pledges or deposits
in connection with workmen's compensation, unemployment insurance and
other social security legislation; (iv) deposits to secure the
performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of like nature incurred in the ordinary
course of business; (v) easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business
which, individually or in the aggregate, do not cause a Material
Adverse Effect; (vi) Liens on assets acquired with the proceeds of
indebtedness securing such indebtedness and (vii) Liens in favor of a
bonding company on the equipment, material and/or accounts receivable
of the Borrower securing the obligations of the Borrower to such
bonding company in respect of surety bonds issued for the account of
the Borrower or the
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Consolidated Subsidiaries; and (viii) security interests granted prior
to the Effective Date by the Borrower or any of the Consolidated
Subsidiaries to the United States Maritime Administration for the
financing of construction of vessels, and any renewals thereof.
"Person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Plan" shall mean any plan subject to Title IV of ERISA and
maintained by Borrower, or any such plan to which a Borrower is
required to contribute on behalf of its employees.
"Pre-Tax Income" shall mean Borrower's consolidated operating
income before income taxes, calculated in accordance with GAAP.
"Primary Lines of Business" shall mean construction services,
including pipeline construction, platform construction, platform
installation and removal and diving services primarily to the offshore
oil and gas industry.
"Pro Rata or Pro Rata Part" shall mean for each Bank, (i) for
all purposes where no Revolving Loan is outstanding, such Bank's
Revolving Commitment Percentage and (ii) otherwise, the proportion
which the portion of the outstanding Revolving Loans owed to such Bank
bears to the aggregate outstanding Revolving Loans owed to all Banks
at the time in question.
"Reimbursement Obligations" shall mean at any time, the
obligations of Borrower in respect of all Letters of Credit then
outstanding to reimburse amounts paid by any Bank in respect of any
drawing or drawings under a Letter of Credit.
"Required Payment" is used herein as defined in Section 3(h)
hereof.
"Revolving Commitment" shall mean (A) for all Banks, (i)
$85,000,000 from the Effective Date through June 30, 2000; (ii)
$60,000,000.00 from July 1, 2000 through June 30, 2001; and (iii)
$35,000,000.00 from July 1, 2001 through June 30, 2002 and (B) as to
any Bank, its obligation to make Advances hereunder on the Revolving
Loan and purchase its Pro Rata Part of participations in Letters of
Credit issued hereunder by the Agent in amounts not exceeding an
amount equal to its Revolving Commitment Percentage times the
Revolving Commitment in existence at the time of determination.
"Revolving Commitment Percentage" shall mean for each Bank the
percentage set forth opposite the name of such Bank on the signature
pages hereto under the heading "Revolving Commitment Percentage" or
its Assignment and Acceptance. At the Effective Date, Bank One's
Revolving Commitment Percentage is 100%.
"Revolving Loan" shall mean loans made under the Revolving
Commitment pursuant to Section 2 hereof.
"Revolving Maturity Date" shall mean July 30, 2002.
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"Secured Obligations" is used herein as defined in Section 6
hereof.
"Shareholder's Equity" shall mean the total amount of assets
of the Borrower and its Consolidated Subsidiaries (less depreciation,
depletion and other properly deductible evaluation reserves) after
deducting good will, patents, trade names, trade marks, copyrights,
franchises, experimental expense, organizational expense, unamortized
debt discount and expense, the excess cost of shares acquired over
book value of related assets, and such other assets as are properly
classified as "intangible assets" in accordance with GAAP.
"Subsidiary" shall mean any corporation or other entity of
which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly
owned by Borrower or another subsidiary.
"Total Outstandings" shall mean as of any date, the sum of (i)
the total principal balance outstanding on the Notes, plus (ii) the
total face amount of all outstanding Letters of Credit plus (iii) the
total amount of all unpaid Reimbursement Obligations.
"Tranche" shall mean a Eurodollar Loan or a Base Rate Loan.
"Unused Fee Rate" shall mean the percentage used to calculate
the Unused Fee, which percentage shall be:
(i) three-eighths of one percent (.375%) per
annum whenever Borrower's ratio of Funded Debt to EBITDA is
greater than 2.25 to 1.0;
(ii) five-sixteenths of one percent (.3125%) per
annum whenever Borrower's ratio of Funded Debt to EBITDA is
greater than 1.75 to 1.0 but less than or equal to 2.25 to
1.0;
(iii) one-quarter of one percent (.25%) per annum
whenever Borrower's ratio of Funded Debt to EBITDA is greater
than 1.25 to 1.0 but less than or equal to 1.75 to 1.0;
(iv) three-sixteenths of one percent (.1875%) per
annum whenever Borrower's ratio of Funded Debt to EBITDA is
greater than .75 to 1.0 but less than or equal to 1.25 to 1.0;
and
(v) one-eighth of one percent (.125%) per annum
whenever Borrower's ratio of Funded Debt to EBITDA is less
than or equal to .75 to 1.0.
For purposes of calculating the Unused Fee Rate, Borrower's ratio of
Funded Debt to EBITDA shall be calculated as of the end of each fiscal
quarter beginning June 30, 1997. Until June 30, 1997, the Unused Fee
Rate shall be .1875%.
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2. COMMITMENTS OF THE BANK.
(a) Terms of Revolving Commitment. On the terms and
conditions hereinafter set forth, each Bank agrees severally to make
its Pro Rata Part of Advances to Borrower and issue Letters of Credit
for the benefit of Borrower from time to time during the period
beginning on the Effective Date and ending on the Maturity Date in
such amounts as Borrower may request up to an amount not to exceed, in
the aggregate principal amount outstanding at any time, the Revolving
Commitment. The obligation of Borrower hereunder shall be evidenced
by this Agreement and the Note or Notes issued in connection herewith,
said Note or Notes to be as described in Section 3 hereof.
Notwithstanding any other provision of this Agreement, no Advance
shall be required to be made hereunder if any Event of Default (as
hereinafter defined) has occurred and is continuing or if any event or
condition has occurred or failed to occur which with the passage of
time or service of notice, or both, would constitute an Event of
Default. Each Advance under the Revolving Commitment shall be an
aggregate amount of at least $500,000 or whole multiples of $100,000
in excess thereof. Irrespective of the face amount of the Note or
Notes, the Banks shall never have the obligation to Advance any amount
or amounts in excess of the Revolving Commitment or to increase the
Revolving Commitment. The total number of Tranches under the
Revolving Commitment which may be outstanding at any time hereunder
shall never exceed four (4), whether such Tranches are Base Rate
Loans, Eurodollar Loans, or a combination thereof.
(b) Procedure for Borrowing. Whenever Borrower desires
an Advance hereunder, they shall give Agent telegraphic, telex,
facsimile or telephonic notice ("Notice of Borrowing") of such
requested Advance, which in the case of telephonic notice, shall be
promptly confirmed in writing. Each Notice of Borrowing shall be in
the form of Exhibit "A" attached hereto and shall be received by Agent
not later than 11:00 a.m. Lafayette, Louisiana time, (i) one (1)
Business Day prior to the Borrowing Date in the case of Base Rate
Loans, or (ii) three (3) Business Days prior to any proposed Borrowing
Date in the case of Eurodollar Loans. Upon receipt of such Notice,
Agent shall advise each Bank thereof; provided, that if the Banks have
received at least one (1) Business Day's notice of such Advance prior
to funding of a Base Rate Loan, or at least three (3) Business Days'
notice of each advance prior to the funding in the case of a
Eurodollar Loan, each Bank shall provide Agent at its office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, not later than 1:00
p.m., Lafayette, Louisiana time, on the Borrowing Date, in immediately
available funds, its Pro Rata share of the requested Advance, but the
aggregate of all such fundings by each Bank shall never exceed such
Bank's Revolving Commitment. Not later than 2:00 p.m., Lafayette,
Louisiana time, on the Borrowing Date, Agent shall make available to
Borrower at the same office, in like funds, the aggregate amount of
such requested Advance. Neither Agent nor any Bank shall incur any
liability to Borrower in acting upon any Notice of Borrowing referred
to above which Agent or such Bank believes in good faith to have been
given by a duly authorized officer or other person authorized to
borrow on behalf of Borrower or for otherwise acting in good faith
under this Section 2(b). Upon funding of Advances by Banks in
accordance with this Agreement, pursuant to any such Notice of
Borrowing, Borrower shall have effected Advances hereunder.
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(c) Letters of Credit. On the terms and conditions
hereinafter set forth, the Agent shall from time to time during the
period beginning on the Effective Date and ending on the Maturity Date
upon request of Borrower issue (i) standby and/or commercial letters
of credit (non-automatically renewable) for the account of Borrower
for job performance and general corporate purposes in such amounts as
Borrower may request but not to exceed in the aggregate face amount at
any time outstanding the sum of Twenty Million Dollars
($20,000,000.00), each such letter of credit shall have an expiry date
no later than the earlier of eighteen (18) months from the date of
issuance or the Revolving Maturity Date, whichever occurs first (the
"Standby Letters of Credit"); and (ii) letters of credit
(automatically renewable) for the account of Borrower in such face
amounts as Borrower may request, but not to exceed in the aggregate
face amount at any time outstanding the greater of (A) $1,700,000.00,
or (B) one percent (1%) of the Revolving Commitment then in effect,
each such letter of credit shall have an expiry date of not more than
one (1) year from issuance, subject to automatic renewal but provided
that the final maturity of any such Letter of Credit shall not extend
beyond the Revolving Maturity Date (the "Evergreen Letters of Credit")
(the Standby Letters of Credit and the Evergreen Letters of Credit are
hereinafter collectively referred to as "Letters of Credit"). The
Evergreen Letters of Credit shall automatically renew upon each such
expiry date unless the Agent notifies the Borrower in writing on or
before a date concurrent with the expiry period notice required in any
such issued Letter of Credit that the Banks will not renew such
Evergreen Letter of Credit at the next expiry date. The face amount
of all Letters of Credit issued and outstanding hereunder shall be
considered as non-interest bearing Advances under the Revolving
Commitment. Each Bank agrees that, upon issuance of any Letter of
Credit hereunder, it shall automatically acquire a participation in
the Agent's liability under such Letter of Credit in an amount equal
to such Bank's Revolving Commitment Percentage of such liability, and
each Bank (other than Agent) thereby shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and
shall be unconditionally obligated to Agent to pay and discharge when
due, its Revolving Commitment Percentage of Agent's liability under
such Letter of Credit. Borrower hereby unconditionally agrees to pay
and reimburse the Agent for the amount of each payment under any
Letter of Credit at or prior to the date on which payment is made by
the Agent to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind. Upon receipt from any
beneficiary of any Letter of Credit of any demand for payment under
such Letter of Credit, the Agent shall promptly notify Borrower of the
demand and the date upon which such payment is to be made by the Agent
to such beneficiary in respect of such demand. Forthwith upon receipt
of such notice from the Agent, Borrower shall advise the Agent whether
or not it intends to borrow hereunder to finance its obligations to
reimburse the Agent, and if so, submit a Notice of Borrowing as
provided in Section 2(b) hereof.
(d) Procedure for Obtaining Letters of Credit. The
amount and date of issuance, renewal, extension or reissuance of a
Letter of Credit pursuant to the Banks' commitment above in Section
2(c) shall be designated by Borrower's written request delivered to
Agent at least three (3) Business Days prior to the date of such
issuance, renewal, extension or reissuance. Concurrently with or
promptly following the delivery of the request for a Letter of Credit,
Borrower shall execute and deliver to the Agent an application and
agreement with respect to the Letters of Credit, said application and
agreement to be in the form used by the Agent. The Agent shall not be
obligated to issue, renew, extend or reissue such Letters of Credit if
(i) the amount thereon when added to the amount of the outstanding
Letters of Credit exceeds (A) Twenty Million
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17
Dollars ($20,000,000.00) in the case of Standby Letters of Credit or
(B) the greater of $1,700,000.00 or one percent (1%) of the Revolving
Commitment in the case of Evergreen Letters of Credit, or (ii) the
amount thereof when added to the Total Outstandings would exceed the
Revolving Commitment. On the Effective Date, there are outstanding
Standby Letters of Credit in the total amount of $3,800,000.00. Once
issued, the Agent shall have the authority to renew and extend from
time to time the expiry date of any Letter of Credit without the
requirement of the joinder of any of the Banks, except that the Agent
shall not renew or extend the expiry date beyond the Revolving
Maturity Date. Borrower agrees to pay the Agent for the benefit of
the Banks commissions for issuing the Letters of Credit (calculated
separately for each Letter of Credit) in an amount equal to
seven-eighths of one percent (.875%) per annum on the face amount of
each Letter of Credit, to be reduced pro rata if the expiry date is
less than twelve (12) months. Borrower agrees to pay to Agent an
additional fee equal to one-eighth of one percent (.125%) per annum on
the maximum face amount of each Letter of Credit. Such commissions
shall be payable prior to the issuance of each Letter of Credit and
thereafter on each anniversary date of such issuance while such Letter
of Credit is outstanding. Borrower further agrees to pay to the Agent
an amendment fee for any amendment to letters of credit issued
hereunder, said fee to be in the amount of $50.00 per amendment and
shall be due upon the issuance of such amendment.
(e) Mandatory Reduction of Revolving Commitment. The
Revolving Commitment shall be reduced from time to time as specified
in Section 2(a) above.
(f) Several Obligations. The obligations of the Banks
under the Revolving Commitment are several and not joint. The failure
of any Bank to make an Advance required to be made by it shall not
relieve any other Bank of its obligation to make its Advance, and no
Bank shall be responsible for the failure of any other Bank to make
the Advance to be made by such other Bank.
(g) Voluntary Reduction of Revolving Commitment. The
Borrower may at any time, or from time to time, on not less than three
(3) Business Days' prior written notice to Agent, reduce or terminate
the Revolving Commitment. Any reduction in the Revolving Commitment
shall be a permanent reduction and must be in the amount of at least
$5,000,000.00 or whole multiples of $1,000,000.00 in excess thereof.
3. NOTES EVIDENCING LOANS. The loans described above in Section
2 shall be evidenced by a promissory notes of Borrower as follows:
(a) Form of Revolving Notes - The Revolving Loan shall be
evidenced by a Note or Notes in the aggregate face amount of
$85,000,000, in favor of each Bank in the amount of their Pro Rata
Part, and shall be in the form of Exhibit "B" hereto with appropriate
insertions. Notwithstanding the face amount of the Notes, the actual
principal amount due from Borrower to Banks on account of the Notes,
as of any date of computation, shall be the sum of Advances then and
theretofore made on account thereof, less all principal payments
actually received by Banks in collected funds with respect thereto.
Although the Notes may be dated as of the Effective Date, interest in
respect thereof shall be payable only for the period during which the
loans evidenced thereby are outstanding and, although the stated
amount of the Notes may be higher, the Notes shall
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be enforceable, with respect to Borrower's obligation to pay the
principal amount thereof, only to the extent of the unpaid principal
amount of the loans.
(b) Issuance of Additional Notes - At the Effective Date
there shall be outstanding (i) one Revolving Note in the aggregate
face amount of $85,000,000 payable to the order of Bank One. From
time to time new Notes may issued to other Banks as such Banks become
parties to this Agreement. Upon request from Agent, Borrower shall
execute and deliver to Agent any such new or additional Notes. From
time to time as new Notes are issued the Agent shall require that each
Bank exchange their Notes for newly issued Notes to better reflect the
extent of each Bank's Revolving Commitments hereunder. Agent shall,
upon the written request of Borrower, cause the Banks to return to
Borrower the Notes which have been replaced within a reasonable period
of time after Borrower's request.
(c) Interest Rates - The unpaid principal balance of the
Notes shall bear interest from time to time as set forth in Section 4
hereof.
(d) Payment of Interest - Interest on the Notes shall be
payable on each Interest Payment Date commencing April 30, 1997.
(e) Payment of Principal - Principal of the Notes shall
be due and payable to the Agent for the ratable benefit of Banks on
the Revolving Maturity Date unless earlier due in whole or in part as
a result of an acceleration of the amount due or pursuant to the
mandatory prepayment provisions of Section 8(b) hereof.
(f) Payment to Banks - Each Bank's Pro Rata Part of
payment or prepayment of the Revolving Loans shall be directed by wire
transfer to such Bank by the Agent at the address provided to the
Agent for such Bank for payments no later than 2:00 p.m., Lafayette,
Louisiana, time on the Business Day such payments or prepayments are
deemed hereunder to have been received by Agent; provided, however, in
the event that any Bank shall have failed to make an Advance as
contemplated under Section 2 hereof (a "Defaulting Bank") and the
Agent or another Bank or Banks shall have made such Advance, payment
received by Agent for the account of such Defaulting Bank or Banks
shall not be distributed to such Defaulting Bank or Banks until such
Advance or Advances shall have been repaid in full to the Bank or
Banks who funded such Advance or Advances. Any payment or prepayment
received by Agent at any time after 12:00 noon, Lafayette, Louisiana,
time on a Business Day shall be deemed to have been received on the
next Business Day. Interest shall cease to accrue on any principal as
of the end of the day preceding the Business Day on which any such
payment or prepayment is deemed hereunder to have been received by
Agent. If Agent fails to transfer any principal amount to any Bank as
provided above, then Agent shall promptly direct such principal amount
by wire transfer to such Bank.
(g) Sharing of Payments, Etc. - If any Bank shall obtain
any payment (whether voluntary, involuntary, or otherwise) on account
of the Revolving Loans, (including, without limitation, any set-off)
which is in excess of its Pro Rata Part of payments on either of the
Revolving Loans, as the case may be, obtained by all Banks, such Bank
shall purchase from the other Banks such participation as shall be
necessary to cause such
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purchasing Bank to share the excess payment pro rata with each of
them; provided that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, the purchase shall be
rescinded and the purchase price restored to the extent of the
recovery. Borrower agrees that any Bank so purchasing a participation
from another Bank pursuant to this Section may, to the fullest extent
permitted by law, exercise all of its rights of payment (including the
right of offset) with respect to such participation as fully as if
such Bank were the direct creditor of Borrower in the amount of such
participation.
(h) Non-Receipt of Funds by the Agent - Unless the Agent
shall have been notified by a Bank or Borrower (the "Payor") prior to
the date on which such Bank is to make payment to the Agent of the
proceeds of a Revolving Loan to be made by it hereunder or Borrower is
to make a payment to the Agent for the account of one or more of the
Banks, as the case may be (such payment being herein called the
"Required Payment"), which notice shall be effective upon receipt,
that the Payor does not intend to make the Required Payment to the
Agent, the Agent may assume that the Required Payment has been made
and may, in reliance upon such assumption (but shall not be required
to), make the amount thereof available to the intended recipient on
such date and, if the Payor has not in fact made the Required Payment
to the Agent, the recipient of such payment shall, on demand, pay to
the Agent the amount made available to it together with interest
thereon in respect of the period commencing on the date such amount
was made available by the Agent until the date the Agent recovers such
amount at the rate applicable to such portion of the applicable
Revolving Loan.
(i) Capital Adequacy - If either (i) the introduction or
implementation of or the compliance with or any change in or in the
interpretation of any law, rule or regulation or (ii) the introduction
or implementation of or the compliance with any mandatory request,
directive or guideline from any central bank or other governmental
authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by
any Bank or any corporation controlling any Bank as a result of
maintaining the Revolving Loans, then within fifteen (15) days after
demand by such Bank, Borrower will pay to such Bank, from time to time
as specified by such Bank, such additional amount or amounts which
such Bank shall reasonably determine to be appropriate to compensate
such Bank or any corporation controlling such Bank in light of such
circumstances, to the extent that such Bank reasonably determines that
the amount of any such capital would be increased, or the rate of
return on any such capital would be reduced in whole or in part, based
on the existence of the amount of the Revolving Loans or such Bank's
Revolving Commitment under this Agreement. No request for additional
compensation shall cover a period commencing earlier than ninety (90)
days prior to such request.
4. INTEREST RATES.
(a) Options.
(i) Base Rate Loans. Borrower agrees to pay
interest on the Notes calculated on the basis of a year
consisting of 360 days with respect to the unpaid principal
amount of each Base Rate Loan from the date the proceeds
thereof are made available to Borrower until maturity (whether
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by acceleration or otherwise), at a varying rate per annum
equal to the lesser of (i) the Maximum Rate (defined herein),
or (ii) the sum of the Base Rate plus the Base Rate Margin.
Subject to the provisions of this Agreement as to prepayment,
the principal of the Notes representing Base Rate Loans shall
be payable as specified in Section 3(e) hereof and the
interest in respect of each Base Rate Loan shall be payable on
each Interest Payment Date. Past due interest shall be
subject to the Late Charge Rate. Past due principal shall
bear interest as specified herein.
(ii) Eurodollar Loans. Borrower agrees to pay
interest calculated on the basis of a year consisting of 360
days with respect to the unpaid principal amount of each
Eurodollar Loan from the date the proceeds thereof are made
available to Borrower until maturity (whether by acceleration
or otherwise), at a varying rate per annum equal to the lesser
of (i) the Maximum Rate, or (ii) the Eurodollar Rate plus the
Eurodollar Margin. Subject to the provisions of this
Agreement with respect to prepayment, the principal of the
Notes shall be payable as specified in Section 3(e) hereof and
the interest with respect to each Eurodollar Loan shall be
payable on each Interest Payment Date. Past due interest
shall be subject to the Late Charge Rate. Past due principal
shall bear interest as set forth herein. Upon three (3)
Business Days written notice prior to the making by the Banks
of any Eurodollar Loan (in the case of the initial Interest
Period therefor) or the expiration date of each succeeding
Interest Period (in the case of subsequent Interest Periods
therefor), Borrower shall have the option, subject to
compliance by Borrower with all of the provisions of this
Agreement, as long as no Event of Default exists, to specify
whether the Interest Period commencing on any such date shall
be a one (1), two (2) or three (3) month period. If Agent
shall not have received timely notice of a designation of such
Interest Period as herein provided, Borrower shall be deemed
to have elected to convert all maturing Eurodollar Loans to
Base Rate Loans.
(b) Interest Rate Determination. The Agent shall
determine each interest rate applicable to the Revolving Loans
hereunder. The Agent shall give prompt notice to Borrower of each
rate of interest so determined and its determination thereof shall be
conclusive absent error.
(c) Conversion Option. Borrower may elect from time to
time (i) to convert all or any part of its Eurodollar Loans to Base
Rate Loans by giving Agent irrevocable notice of such election in
writing prior to 10:00 a.m. (Lafayette, Louisiana time) on the
conversion date and such conversion shall be made on the requested
conversion date, provided that any such conversion of Eurodollar Loan
shall only be made on the last day of the Eurodollar Interest Period
with respect thereof, and (ii) to convert all or any part of its Base
Rate Loans to Eurodollar Loans by giving the Agent irrevocable written
notice of such election three (3) Business Days prior to the proposed
conversion and such conversion shall be made on the requested
conversion date or, if such requested conversion date is not a
Business Day on the next succeeding Business Day. Any such conversion
shall not be deemed to be a prepayment of any of the loans for
purposes of this Agreement on the Notes.
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(d) Recoupment. If at any time the applicable rate of
interest selected pursuant to Sections 4(a)(i) or 4(a)(ii) above shall
exceed the Maximum Rate, thereby causing the interest on the Notes to
be limited to the Maximum Rate, then any subsequent reduction in the
interest rate so selected or subsequently selected shall not reduce
the rate of interest on the Notes below the Maximum Rate until the
total amount of interest accrued on the Notes equals the amount of
interest which would have accrued on the Notes if the rate or rates
selected pursuant to Sections 4(a)(i) or (ii), as the case may be, had
at all times been in effect.
5. SPECIAL PROVISIONS RELATING TO EURODOLLAR LOANS.
(a) Unavailability of Funds or Inadequacy of Pricing. In
the event that, in connection with any proposed Eurodollar Loan, any
Bank (i) shall have determined that U.S. Dollar deposits of the
relevant amount and for the relevant Eurodollar Interest Period for
Eurodollar Loans are not available to such Bank in the London
interbank market; or (ii) in good faith determines that the Eurodollar
Interest Rate will not adequately reflect the cost to the Banks of
maintaining or funding the Eurodollar Loans for such Interest Period,
the obligations of the Banks to make the Eurodollar Loans, as the case
may be, shall be suspended until such time such Bank in its sole
discretion reasonably exercised determines that the event resulting in
such suspension has ceased to exist. If any Bank shall make such
determination it shall promptly notify the Agent in writing, and Agent
shall promptly notify Borrower in writing, and Borrower shall either
repay the outstanding Eurodollar Loans, as the case may be, owed to
Banks, without penalty, on the last day of the current Interest Period
or convert the same to Base Rate Loans in the case of Eurodollar Loans
on the last day of the then current Interest Period for such
Eurodollar Loan.
(b) Reserve Requirements. In the event of any change in
any applicable law, treaty or regulation or in the interpretation or
administration thereof, or in the event any central bank or other
fiscal monetary or other authority having jurisdiction over any Bank
or the loans contemplated by this Agreement shall impose, modify or
deem applicable any reserve requirement of the Board of Governors of
the Federal Reserve System on any Eurodollar Loan or loans, or any
other reserve, special deposit, or some requirements against assets
to, deposits with or for the account of, or credit extended by, the
Banks or shall impose on any Bank or the London interbank market, as
the case may be, any other condition affecting this Agreement or the
Eurodollar Loans and the result of any of the foregoing is to increase
the cost to any Bank in making or maintaining its Eurodollar Loans or
to reduce any amount (or the effective return on any amount) received
by any Bank hereunder, then Borrower shall pay to the Banks upon
demand of any Bank as additional interest on the Notes evidencing the
Eurodollar Loans such additional amount or amounts as will reimburse
the Banks for such additional cost or such reduction. No request for
additional compensation shall cover a period commencing earlier than
ninety (90) days prior to such request. The Banks shall give notice
to Borrower upon becoming aware of any such change or imposition which
may result in any such increase or reduction. A certificate of any
Bank setting forth the basis for the determination of such amount
necessary to compensate Banks as aforesaid shall be delivered to
Borrower and shall be conclusive as to such determination and such
amount, absent error.
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(c) Taxes. Both principal and interest on the Notes
evidencing the Eurodollar Loans are payable without withholding or
deduction for or on account of any taxes. If any taxes are levied or
imposed on or with respect to the Notes evidencing the Eurodollar
Loans or on any payment on the Notes evidencing the Eurodollar Loans
made to any Bank, then, and in any such event, Borrower shall pay to
the Banks upon demand of any Bank such additional amounts as may be
necessary so that every net payment of principal and interest on the
Notes evidencing the Eurodollar Loans, after withholding or deduction
for or on account of any such taxes, will not be less than any amount
provided for herein. In addition, if at any time when the Eurodollar
Loans are outstanding any laws enacted or promulgated, or any court of
law or governmental agency interprets or administers any law, which,
in any such case, materially changes the basis of taxation of payments
to any Bank of principal of or interest on the Notes evidencing the
Eurodollar Loans by reason of subjecting such payments to double
taxation or otherwise (except through an increase in the rate of tax
on the overall net income of such Bank or Banks) then Borrower will
pay the amount of loss to the extent that such loss is caused by such
a change. The Banks shall give notice to Borrower upon becoming aware
of the amount of any loss incurred by any Bank through enactment or
promulgation of any such law which materially changes the basis of
taxation of payments to one or more of the Banks. The Banks shall
also give notice on becoming aware of any such enactment or
promulgation which may result in such payments becoming subject to
double taxation or otherwise. A certificate of any Bank setting forth
the basis for the determination of such loss and the computation of
such amounts shall be delivered to Borrower and shall be conclusive of
such determination and such amount, absent error. The Banks will
reimburse Borrower for any amounts paid by Borrower pursuant to this
provision which are ultimately recovered to reduce or eliminate
amounts owed by Borrower hereunder.
(d) Change in Laws. If at any time any new law or any
change in existing laws or in the interpretation of any new or
existing laws shall make it unlawful for the Banks to maintain or fund
its Eurodollar Loans hereunder, then the Banks shall promptly notify
Borrower in writing and Borrower shall either repay the outstanding
Eurodollar Loans owed to the Banks, without penalty, on the last day
of the current Interest Periods (or, if any Bank may not lawfully
continue to maintain and fund such Eurodollar Loans, immediately), or
Borrower may convert such Eurodollar Loans at such appropriate time to
Base Rate Loans.
(e) Option to Fund. The Banks shall each have the option
if Borrower elects a Eurodollar Loan, to purchase one or more deposits
in order to fund or maintain its funding of the principal balance of
its Note to which such Eurodollar Loan is applicable during the
Interest Period in question; it being understood that the provisions
of this Agreement relating to such funding are included only for the
purpose of determining the rate of interest to be paid under such
Eurodollar Loan and any amounts owing hereunder and under the Notes.
Any Bank shall be entitled to fund and maintain its funding of all or
any part of that portion of the principal balance of the Notes in any
manner it sees fit, but such determinations hereunder shall be made
based on whether such Bank has actually funded and maintained that
portion of the principal balance of the Notes to which a Eurodollar
Loan is applicable during the applicable Interest Period through the
purchase
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of deposits in an amount equal to the principal balance of the Notes
to which such Eurodollar Loan is applicable and having a maturity
corresponding to such Interest Period. Any Bank may fund the
outstanding principal balance of the Notes which is to be subject to
any Eurodollar Loan from any branch or office of such Bank as any Bank
may designate from time to time.
(f) Indemnity. Borrower shall indemnify and hold
harmless the Banks against all reasonable and necessary out-of-pocket
costs and expenses which the Banks may sustain (i) as a consequence of
any default by Borrower under this Agreement, or (ii) as a result of
the making of any loan or loans as a Eurodollar Loan under this
Agreement.
(g) Payments Not at End of Interest Period. If Borrower
makes any payment of principal with respect to any Eurodollar Loan on
any day other than the last day of the Interest Period applicable to
such Eurodollar Loan, then Borrower shall reimburse the Banks on
demand for any loss, cost or expense incurred by the Banks as a result
of the timing of such payment or in redepositing such principal
amount, including the sum of (i) the cost of funds to the Banks in
respect of such principal amount so paid, for the remainder of the
Interest Period applicable to such sum, reduced, if any Bank is able
to redeposit such principal amount so paid for the balance of the
Interest Period, by the interest earned by such Bank as a result of so
redepositing such principal amount, plus (ii) any expense or penalty
incurred by the Bank in redepositing such principal amount. A
certificate of any Bank setting forth the basis for the determination
of the amount owed by Borrower pursuant to this Section 5(g) shall be
delivered to Borrower and shall be conclusive in the absence of
manifest error.
(h) Replacement Banks. If any Bank has notified the
Borrower and the Agent of its incurring additional costs under Section
5(b) hereof or has required the Borrower to make payment for taxes
under Section 5(c) hereof, then Borrower may, unless such Bank has
notified the Borrower and the Agent that the circumstances giving rise
to such notice no longer apply, terminate, in whole but not in part,
the Revolving Commitment of any such Bank (other than the Agent) (the
"Terminated Bank") at any time upon five (5) Business Days prior
written notice to the Terminated Bank and the Agent (such notice
referred to herein as a "Notice of Termination"). In order to effect
the termination of the Revolving Commitment of the Terminated Bank,
the Borrower shall (i) obtain an agreement with one or more other
Banks to increase their Revolving Commitment or Revolving Commitments
and/or (ii) request any one or more other Eligible Assignees to become
parties to this Agreement in place and in stead of such Terminated
Bank and agree to accept a Revolving Commitment or Revolving
Commitments in an aggregate amount or amounts equal to the Revolving
Commitment held by the Terminated Bank and (iii) pay all amounts due
to the Terminated Bank pursuant to the provisions of Section 5(b) and
5(c) hereof; provided, however, that such one or more Eligible
Assignees selected by the Borrower must be reasonably acceptable to
the Agent and must become parties by accepting an Assignment and
Acceptance (the Banks or other Eligible Assignees that agree to accept
in whole or in part the Revolving Commitment of the Terminated Bank
being referred to herein as the "Replacement Banks"), such that the
aggregate increased and/or accepted Revolving Commitments of the
Replacement Banks under Clauses (i) and (ii) above equal to the
Revolving Commitment of the Terminated Bank. The Notice of
Termination shall include the name of the Terminated Bank, the
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date the termination will occur (the "Termination Date"), and the
Replacement Bank or Replacement Banks to which the Terminated Bank
will assign its Revolving Commitment and, if there will be more than
one Replacement Bank, the portion of the Terminated Bank's Revolving
Commitment to be assigned to each Replacement Bank. On the
Termination Date, (i) the Terminated Bank shall by execution and
delivery of an Assignment and Acceptance assign its Revolving
Commitment to the Replacement Bank or Replacement Banks (pro rata, if
there is more than one Replacement Bank, in proportion to the portion
of the Terminated Bank's Revolving Commitment to be assigned to each
Replacement Bank) indicated in the Notice of Termination and shall
assign to the Replacement Bank or Replacement Banks all of its rights
and obligations under this Agreement, including, without limitation,
each of its Revolving Loan (if any) then outstanding and participation
interest in Letters of Credit (if any) then outstanding pro rata as
aforesaid, (ii) the Terminated Bank shall endorse its Note, payable
without recourse, representation or warranty to the order of the
Replacement Bank or Replacement Banks (pro rata as aforesaid), (iii)
the Replacement Bank or Replacement Banks shall purchase the Note held
by the Terminated Bank (pro rata as aforesaid) at a price equal to the
unpaid principal amount thereon plus interest and fees accrued and
unpaid to the Termination Date, and (iv) the Replacement Bank or
Replacement Banks will thereupon (pro rata as aforesaid) succeed to
and be substitute in all respects for the Terminated Bank with like
effect as if becoming a Bank pursuant to the terms of Section 29(a)
hereof. For each assignment made under this Section 5(h) the
replacement Bank shall pay to the Agent the assignment fee provided
for in Section 29(a). The Borrower shall be responsible for payment
of all breakage fees associated with termination and Replacement
Banks, as set forth in Section 5(g) hereof.
6. COLLATERAL AND GUARANTIES. The obligation of the Borrower to
repay (i) with interest all amounts advanced under the Revolving Commitment as
evidenced by the Revolving Note or Notes, together with all renewals,
extensions, modifications and/or restatements of the Revolving Commitment
and/or the Revolving Note or Notes that are from time to time in effect, and
(ii) all fees, costs and expenses of the Banks, including reasonable attorneys'
fees incurred by the Banks under this Agreement (collectively, the "Secured
Obligations") shall be (A) secured by the pledge by Borrower of 66% of the
voting stock of Global Offshore and (B) guaranteed by a Guaranty executed by
each of the Guarantors in favor of the Banks dated of even date herewith,
whereby the Guarantors obligate themselves in solido with the Borrower. The
Guaranty to be executed by each Guarantor shall be in form of Exhibit "C"
hereto.
7. FEES.
(a) Unused Fee. Borrower shall pay to Agent for the
ratable benefit of the Banks an unused commitment fee (the "Unused
Fee") equivalent to the Unused Fee Rate times the unadvanced portion
of the Revolving Commitment (calculated on a daily basis) less the
outstanding amount of each unfunded Letter of Credit issued by the
Agent pursuant to Section 2(c) hereof. The Unused Commitment Fee
shall be payable in arrears on the last Business Day of each fiscal
quarter beginning June 30, 1997 with the final fee payment due on the
Maturity Date for any period then ending for which the Unused
Commitment Fee shall not have been theretofore paid. In the event the
Revolving Commitment terminates on any date prior to the end of any
such fiscal quarter, Borrower shall pay to the Agent for the ratable
benefit of the Banks, on the date of such termination, the Unused
Commitment Fee due for the period in which such termination occurs.
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(b) The Letter of Credit Fee. Borrower shall pay to the
Agent the Letter of Credit fees required above in Section 2(d).
(c) Agency Fees. Borrower shall pay to the Agent certain
fees for acting as Agent hereunder in amounts to be negotiated between
Borrower and the Agent.
8. PREPAYMENTS.
(a) Voluntary Prepayments. Subject to any provisions of
this Agreement, Borrower may at any time and from time to time,
without penalty or premium except as required pursuant to Section 5(g)
hereof, prepay the Notes, in whole or in part. Each such prepayment
shall be made on at least one (1) Business Day's notice to Agent and
shall be in a minimum amount of at least $500,000 or whole multiples
of $100,000 in excess thereof or the unpaid balance on the Notes,
whichever is less, plus accrued interest thereon to the date of
prepayment.
(b) Mandatory Prepayment. In the event the Total
Outstandings ever exceed the Revolving Commitment as reduced from time
to time pursuant to Section 2(a) hereof, Borrower shall, within three
(3) Business Days after notification from the Agent of the occurrence
of such excess make an immediate mandatory prepayment of principal to
the Agent for the ratable benefit of the Banks sufficient to reduce
the Total Outstandings to an amount less than or equal to the
Revolving Commitment then in effect pursuant to Section 2(a) hereof
and, in addition, pay to the Agent for the ratable benefit of the
Banks any accrued, unpaid interest on such excess (through the date of
payment of the excess amount) when the Borrower makes its next regular
monthly interest payment pursuant to Section 4 hereof.
9. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks
to enter into this Agreement, Borrower and each Guarantor hereby represent and
warrant to the Banks (which representations and warranties will survive the
delivery of the Notes) that:
(a) Creation and Existence. Borrower and each
Consolidated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it was formed and is duly qualified as a foreign corporation in
all jurisdictions wherein such qualification is necessary and failure
to qualify would result in a Material Adverse Effect. Borrower and
each Consolidated Subsidiary has all corporate power and authority to
own its properties and assets and to transact the business in which it
is engaged.
(b) Power and Authority. Borrower has all requisite
corporate power and authority to create and issue the Notes; and
Borrower and each Guarantor has all requisite corporate power and
authority to execute, deliver and perform the Loan Documents to which
it is a party, including this Agreement; and all corporate action on
Borrower's part requisite for the due creation and issuance of the
Notes and on Borrower's and each Guarantor's part for the due
execution, delivery and performance of the Loan Documents, including
this Agreement, has been duly and effectively taken.
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(c) Binding Obligations. This Agreement does, and the
Notes and other Loan Documents upon their creation, issuance,
execution and delivery will, constitute valid and binding obligations
of Borrower enforceable in accordance with their respective terms
(except that enforcement may be subject to any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
laws or judicial decisions now or hereafter in effect and relating to
or affecting the enforcement of creditors rights generally and by
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law). The Guaranties
upon their execution and delivery will constitute valid and binding
obligations of each Guarantor enforceable in accordance with their
respective terms (except that enforcement may be subject to any
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws or judicial decisions or similar
relief laws now or hereafter in effect and relating or affecting the
enforcement of creditor's rights generally and by general principals
of equity, regardless of whether such enforcement is considered
proceedings in equity or at law).
(d) No Legal Bar or Resultant Lien. The Notes and the
Loan Documents, including this Agreement, do not and will not, to the
best of Borrower's or the Guarantors' knowledge violate any provisions
of any contract, agreement, law, regulation, order, injunction,
judgment, decree or writ to which Borrower or any Guarantor is
subject, or result in the creation or imposition of any lien or other
encumbrance upon any assets or properties of Borrower or any
Guarantor, other than those contemplated by this Agreement.
(e) No Consent. The execution, delivery and performance
by Borrower of the Notes and the Loan Documents, including the
Agreement, and the execution and delivery by each Guarantor of the
Guaranties and this Agreement, do not require the consent or approval
of any other Person, including without limitation any regulatory
authority or governmental body of the United States or any state
thereof or any political subdivision of the United States or any state
thereof.
(f) Financial Condition. The unaudited consolidated
Financial Statements of Borrower dated December 31, 1996, which have
been delivered to the Agent fairly present the consolidated financial
position and results of operations and cash flow of the Borrower in
all material respects at the date and for the period indicated in
accordance with GAAP (in the case of unaudited interim Financial
Statements subject to year-end adjustments and the omission of certain
footnotes). As of the Date of this Agreement, no change has occurred
since the date of the last Financial Statement delivered to Agent in
the condition, financial or otherwise, of Borrower which is reasonably
expected to have a Material Adverse Effect, except as disclosed in
Schedule "1" attached hereto.
(g) Liabilities. Neither Borrower nor any Consolidated
Subsidiary has any material (individually or in the aggregate)
liability, absolute or contingent, except as disclosed in the
Financial Statements delivered to the Agent or on Schedule "2"
attached hereto. No unusual or unduly burdensome restrictions or
restraint exists by contract, law or governmental regulation or
otherwise relative to the business, assets or properties of Borrower
or any Consolidated Subsidiary which is reasonably expected to have a
Material Adverse Effect.
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(h) Litigation. As of the Date of this Agreement except
as described in the Financial Statements in its 1996 Securities and
Exchange Commission Form 10K, or as otherwise disclosed to the Banks
in Schedule "3" attached hereto, there is no litigation, legal or
administrative proceeding, investigation or other action of any nature
pending or, to the knowledge of Borrower or any Consolidated
Subsidiary threatened against or affecting Borrower or any
Consolidated Subsidiary which involves the possibility of any judgment
or liability not fully covered by insurance, and which is reasonably
expected to have a Material Adverse Effect.
(i) Taxes; Governmental Charges. As of the Date of this
Agreement, Borrower and each Consolidated Subsidiary has filed all tax
returns and reports required to have been filed and has paid all
taxes, assessments, fees and other governmental charges levied upon it
or its assets, properties or income which are due and payable,
including interest and penalties, the failure of which to pay could
reasonably be expected to have a Material Adverse Effect on a
consolidated basis, except such as are being contested in good faith
by appropriate proceedings and for which reserves that it reasonably
believes to be adequate for the payment thereof as required by GAAP
has been provided and levy and execution thereon have been stayed and
continue to be stayed.
(j) Titles, Etc. Borrower and each Consolidated
Subsidiary has good and marketable title to all of its respective
material assets, free and clear of all Liens except Permitted Liens.
(k) Defaults. Neither Borrower nor any Consolidated
Subsidiary is in default and no event or circumstance has occurred
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any loan or credit agreement,
indenture, mortgage, deed of trust, security agreement or other
agreement or instrument to which Borrower or any Consolidated
Subsidiary is a party that would be reasonably expected to have a
Material Adverse Effect. No Event of Default hereunder has occurred
and is continuing.
(l) Use of Proceeds; Margin Stock. The availability
under the Revolving Commitment will be used by Borrower for the
purposes of (i) acquisition and expansion of its business, (ii)
financing of its construction needs, (iii) for Letters of Credit, and
(iv) for general corporate purposes. Borrower is not engaged
principally or as one of its material activities in the business of
extending credit for the purpose of purchasing or carrying any "margin
stock" as defined in Regulation U of the Board of Governors of the
Federal Reserve System (12 C.F.R. Part 221), or for the purpose of
reducing or retiring any indebtedness which was originally incurred to
purchase or carry a margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of
said Regulation U.
Neither Borrower nor any person or entity acting on behalf of
Borrower has taken or will take any action which might cause the loans
hereunder or any of the Loan Documents, including this Agreement, to
violate Regulation U or any other regulation of
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the Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934 or any rule or regulation thereunder,
in each case as now in effect or as the same may hereafter be in
effect.
(m) Location of Business and Offices. The principal
place of business and chief executive offices of Borrower and each
Consolidated Subsidiary is located at the address stated in Section 16
hereof.
(n) Compliance with the Law. To the best of Borrower's
and each Consolidated Subsidiary's knowledge, neither Borrower nor any
Consolidated Subsidiary:
(i) is in violation of any law, judgment, decree,
order, ordinance, or governmental rule or regulation to which
Borrower or any Consolidated Subsidiary, or any of their
assets or properties are subject; or
(ii) has failed to obtain any license, permit,
franchise or other governmental authorization necessary to the
ownership of any of their assets or properties or the conduct
of their business;
which violation or failure is reasonably expected to have a Material
Adverse Effect.
(o) No Material Misstatements. No written information,
exhibit or report furnished by Borrower or any Guarantor to the Banks
in connection with the negotiation of this Agreement contained a
misstatement of material fact or omitted to state a material fact or
any fact necessary to make the statement contained therein not
materially misleading.
(p) ERISA. Borrower and each Consolidated Subsidiary are
in compliance in all material respects with the applicable provisions
of ERISA, and no "reportable event", as such term is defined in
Section 403 of ERISA, has occurred with respect to any Plan of
Borrower.
(q) Public Utility Holding Company Act. Borrower is not
a "holding company", or "subsidiary company" of a "holding company",
or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", or a "public utility" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(r) Subsidiaries. As of the date of this Agreement, all
of Borrower's Subsidiaries are listed on Schedule "4" hereto.
(s) Environmental Matters. Except as disclosed on
Schedule "5", neither Borrower nor any Consolidated Subsidiary (i) has
received notice of any Environmental Liability, (ii) has received
notice of any threatened or actual liability in connection with the
release of any toxic or hazardous waste into the environment which
would be reasonably likely to individually or in the aggregate have a
Material Adverse Effect or (iii) has received notice of any federal or
state investigation evaluating whether any remedial action is needed
to respond to a release or threatened release of any toxic or
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hazardous waste into the environment for which Borrower or any
Consolidated Subsidiary is or may be liable which would be reasonably
likely to result in a Material Adverse Effect.
(t) Fiscal Year. Borrower's fiscal year ends on March 31.
(u) Guarantors. All of Borrower's Consolidated
Subsidiaries (excluding Global Offshore) that have total assets of
$5,000,000.00 or more and annual gross revenues of $5,000,000.00 or
more are Guarantors. All other non-guaranteeing Consolidated
Subsidiaries (excluding Global Offshore), taken as a whole, have less
than 10% of the total assets and total annual gross revenues of
Borrower and its Consolidated Subsidiaries, taken as a whole.
10. CONDITIONS OF LENDING.
(a) The effectiveness of this Agreement, and the
obligation to make the initial Advance under the Revolving Commitment
shall be subject to satisfaction of the following conditions
precedent:
(i) Execution and Delivery. Borrower shall each
have executed and delivered the Agreement, a pledge agreement
and blank stock power covering 66% of the outstanding stock of
Global Offshore, and other required documents, all in form and
substance satisfactory to the Agent;
(ii) Guarantor's Execution and Delivery. Each
Guarantor shall have executed and delivered a Guaranty and
other required documents, all in form and substance
satisfactory to Agent;
(iii) Legal Opinion. The Agent shall have received
from Borrower's and Guarantors' legal counsel a favorable
legal opinion in form and substance reasonably satisfactory to
Agent and its counsel;
(iv) Corporate Resolutions. The Agent shall have
received appropriate certified corporate resolutions of
Borrower and each Guarantor;
(v) Good Standing. The Agent shall have received
evidence of existence and good standing for Borrower and each
Guarantor;
(vi) Incumbency. The Agent shall have received a
signed certificate of Borrower and each Guarantor, certifying
the names of the officers of Borrower and each Guarantor
authorized to sign loan documents on behalf of Borrower and
each Guarantor, together with the true signatures of each such
officer. The Agent may conclusively rely on such certificate
until the Agent receives a further certificate of Borrower or
any Guarantor canceling or amending the prior certificate and
submitting signatures of the officers named in such further
certificate;
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(vii) Articles of Incorporation and Bylaws. The
Agent shall have received copies of the Articles of
Incorporation of Borrower and each Guarantor and all
amendments thereto, certified by the Secretary of State of the
State of its incorporation, and a copy of the bylaws of
Borrower and each Guarantor and all amendments thereto,
certified by Borrower and each Guarantor as being true,
correct and complete;
(viii) Payment of Fees. The Agent shall have
received payment in full of all fees due at the Effective
Date.
(ix) Representation and Warranties. The
representations and warranties of Borrower and each
Consolidated Subsidiary under this Agreement are true and
correct in all material respects as of such date, as if then
made (except to the extent that such representations and
warranties related solely to an earlier date or the Majority
Banks shall have consented to the contrary);
(x) No Event of Default. No Event of Default
shall have occurred and be continuing nor shall any event have
occurred or failed to occur which, with the passage of time or
service of notice, or both, would constitute an Event of
Default;
(xi) Other Documents. Agent shall have received
such other instruments and documents incidental and
appropriate to the transaction provided for herein as Bank or
its counsel may reasonably request, and all such documents
shall be in form and substance reasonably satisfactory to the
Agent; and
(xii) Legal Matters Satisfactory. All legal
matters incident to the consummation of the transactions
contemplated hereby shall be reasonably satisfactory to
special counsel for Agent retained at the expense of Borrower.
(b) The obligation of the Banks to make any Advance on
the Revolving Commitment (including the initial Advance) shall be
subject to the following additional conditions precedent that, at the
date of making each such Advance and after giving effect thereto:
(i) Representation and Warranties. The
representations and warranties of Borrower and each
Consolidated Subsidiary under this Agreement are true and
correct in all material respects as of such date, as if then
made (except to the extent that such representations and
warranties related solely to an earlier date or the Majority
Banks shall have consented to the contrary);
(ii) No Event of Default. No Event of Default
shall have occurred and be continuing nor shall any event have
occurred or failed to occur which, with the passage of time or
service of notice, or both, would constitute an Event of
Default;
(iii) Legal Matters Satisfactory. All legal
matters incident to the issuance of any Letter of Credit
hereunder shall be reasonably satisfactory to special counsel
for Agent retained at the expense of Borrower.
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11. AFFIRMATIVE COVENANTS. A deviation from the provisions of
this Section 11 shall not constitute an Event of Default under this Agreement
if such deviation is consented to in writing by Majority Banks. Without the
prior written consent of Majority Banks, Borrower and each Guarantor will (and
Borrower will cause each other Consolidated Subsidiary to), at all times comply
with the covenants contained in this Section 11 from the date hereof and for so
long as the Revolving Commitment is in existence or any part of the Revolving
Loan is outstanding.
(a) Financial Statements and Reports. Borrower shall
promptly furnish to the Agent from time to time upon request such
information regarding the business and affairs and financial condition
of Borrower, as the Agent may reasonably request, and will furnish to
the Agent:
(i) Annual Financial Statements. As soon as
available, and in any event within ninety (90) days after the
close of each fiscal year, the annual audited consolidated and
consolidating Financial Statements of Borrower, prepared in
accordance with GAAP;
(ii) Quarterly Financial Statements. As soon as
available, and in any event within forty-five (45) days after
the end of each fiscal quarter of each year, the quarterly
unaudited consolidated Financial Statements of Borrower
prepared in accordance with GAAP and certified by an
authorized officer of Borrower;
(iii) SEC Reports. As soon as available, and in
any event within five (5) days of filing, copies of all
filings by Borrower with the Securities and Exchange
Commission; and
(iv) Additional Information. Promptly upon
request of the Agent from time to time any additional
financial information or other information that the Agent may
reasonably request.
All additional information referred to in Subsection 11(a)(iv) above
shall be in such detail as the Agent may reasonably request concerning
the Borrower and the Guarantors.
(b) Certificates of Compliance. Concurrently with the
furnishing of the annual Financial Statements pursuant to Subsection
11(a)(i) hereof and the quarterly unaudited Financial Statements
pursuant to Subsection 11(a)(ii) hereof, Borrower will furnish or
cause to be furnished to the Agent a certificate in the form of
Exhibit "D" attached hereto, signed by the President or Chief
Financial Officer of Borrower.
(c) Taxes and Other Liens. Borrower and each
Consolidated Subsidiary will pay and discharge promptly all lawful
taxes, assessments and governmental charges or levies imposed upon
Borrower or any Consolidated Subsidiary or upon the income or any
assets or property of Borrower or any Consolidated Subsidiary as well
as all claims of any kind (including claims for labor, materials,
supplies and rent) which, if unpaid, might become a Lien or other
encumbrance upon any or all of the assets or property of Borrower or
any Consolidated Subsidiary and which could reasonably be expected to
result in a Material Adverse Effect; provided, however, that Borrower
and each Consolidated Subsidiary shall not be required to pay any such
tax, assessment, charge, levy or claim if the amount, applicability or
validity thereof shall currently be contested
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in good faith by appropriate proceedings diligently conducted, levy
and execution thereon have been stayed and continue to be stayed and
if such Borrower or Consolidated Subsidiary shall have set up adequate
reserves therefor, if required, under GAAP.
(d) Compliance with Laws. Borrower and each Consolidated
Subsidiary will observe and comply with all applicable laws, statutes,
codes, acts, ordinances, orders, judgments, decrees, injunctions,
rules, regulations, orders and restrictions relating to environmental
standards or controls or to energy regulations of all federal, state,
county, municipal and other governments, departments, commissions,
boards, agencies, courts, authorities, officials and officers,
domestic or foreign, where the failure to so observe and comply is
reasonably expected to have a Material Adverse Effect.
(e) Further Assurances. Borrower will cure promptly any
defects in the creation and issuance of the Note and the execution and
delivery of the Notes and the Loan Documents, including this
Agreement. Each Guarantor will cure promptly all defects in execution
and delivery of their Guaranties. Borrower and each Guarantor at
their sole expense will promptly execute and deliver to Agent upon its
reasonable request all such other and further documents, agreements
and instruments in compliance with or accomplishment of the covenants
and agreements in this Agreement, or to correct any omissions in the
Note or more fully to state the obligations set out herein.
(f) Performance of Obligations. Borrower will pay the
Notes and other obligations incurred by it hereunder according to the
reading, tenor and effect thereof and hereof.
(g) Insurance. Borrower and each Consolidated Subsidiary
now maintains and will continue to maintain insurance with insurers
which they reasonably believe to be financially sound and reputable
with respect to its assets against such liabilities, fires,
casualties, risks and contingencies and in such types and amounts as
is customary in the case of persons engaged in the same or similar
businesses and similarly situated and in amounts which are consistent
with prudent business practices. Upon request of the Agent, Borrower
and each Consolidated Subsidiary will furnish or cause to be furnished
to the Agent from time to time a summary of the respective insurance
coverage of Borrower and each Consolidated Subsidiary in form and
substance satisfactory to the Agent, and, if requested, will furnish
the Agent copies of the applicable policies.
(h) Accounts and Records. Borrower and each Consolidated
Subsidiary will keep books, records and accounts in which full, true
and correct entries will be made of all dealings or transactions in
relation to its business and activities, prepared in a manner
consistent with prior years, subject to changes suggested by
Borrower's or the Consolidated Subsidiary's auditors.
(i) Right of Inspection. Borrower and each Consolidated
Subsidiary will permit any officer, employee or agent of the Agent to
examine Borrower's and each Consolidated Subsidiary's books, records
and accounts, and take copies and extracts therefrom, all at such
reasonable times during normal business hours and as often as the
Agent may reasonably request.
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(j) Notice of Certain Events. Borrower and the
Guarantors shall promptly notify the Agent if Borrower or any
Guarantor learns of the occurrence of (i) any event which constitutes
an Event of Default together with a detailed statement by Borrower or
such Guarantor of the steps being taken to cure the Event of Default;
or (ii) any legal, judicial or regulatory proceedings affecting
Borrower, any Consolidated Subsidiary, or any of the assets or
properties of Borrower or any Consolidated Subsidiary which, if
adversely determined, could reasonably be expected to have a Material
Adverse Effect; or (iii) any dispute between Borrower or any
Consolidated Subsidiary and any governmental or regulatory body or any
other person or entity which, if adversely determined, might
reasonably be expected to cause a Material Adverse Effect; or (iv) any
other matter which in Borrower's or any Guarantor's opinion is
reasonably expected to have a Material Adverse Effect.
(k) ERISA Information and Compliance. Borrower and each
Consolidated Subsidiary will promptly furnish to the Agent immediately
upon becoming aware of the occurrence of any "reportable event", as
such term is defined in Section 4043 of ERISA, or of any "prohibited
transaction", as such term is defined in Section 4975 of the Internal
Revenue Code of 1954, as amended, in connection with any Plan or any
trust created thereunder, a written notice signed by the chief
financial officer of Borrower or such Consolidated Subsidiary
specifying the nature thereof, what action Borrower is taking or
proposes to take with respect thereto, and, when known, any action
taken by the Internal Revenue Service with respect thereto.
(l) Environmental Reports and Notices. Borrower and each
Consolidated Subsidiary will deliver to the Agent (i) notice, in
writing, promptly upon Borrower's or any Consolidated Subsidiary's
receipt of notice or otherwise learning of any claim, demand, action,
event, condition, report or investigation indicating any potential or
actual liability arising in connection with (x) the non-compliance
with or violation of the requirements of any Environmental Law which
reasonably could be expected to have a Material Adverse Effect; (y)
the release or threatened release of any toxic or hazardous waste into
the environment which reasonably could be expected to have a Material
Adverse Effect, or (ii) the existence of any Environmental Lien on any
properties or assets of Borrower or any Consolidated Subsidiary, and
Borrower or any Consolidated Subsidiary shall immediately deliver a
copy of any such notice to Agent. Upon request of Agent, Borrower and
each Consolidated Subsidiary will further deliver to the Agent a copy
of all reports, notices or other information reasonably required by
Agent in connection with the above items (i) and (ii).
(m) Change of Principal Place of Business. Borrower and
each Guarantor shall give Agent at least thirty (30) days prior
written notice of its intention to move its principal place of
business from the address set forth in Section 16 hereof.
(n) Payables and Other Indebtedness. Borrower and each
Consolidated Subsidiary shall pay their trade payables and other Debt
that arise in the ordinary course of business promptly as they become
due except to the extent any such trade payables or Debt are being
contested in good faith.
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(o) New Guarantors. Borrower shall cause any
Consolidated Subsidiary (excluding Global Offshore) that at any time
after the Effective Date has both total assets of $5,000,000.00 or
more and annual gross revenues as of the end of its fiscal year of
$5,000,000.00 or more to execute and deliver to the Banks a continuing
guaranty in form and substance similar to the Guaranties, together
with the same information provided by the other Guarantors pursuant to
Section 10(a)(iv) through (vii) of this Agreement. In the event that
at any time after the Effective Date, the total assets and annual
gross revenues of all of the non-guaranteeing Consolidated
Subsidiaries (excluding Global Offshore), taken as a whole, exceed 10%
of the total assets and total annual gross revenues of all
Consolidated Subsidiaries, taken as a whole, Borrower shall cause one
or more of such non-guaranteeing Consolidated Subsidiaries (excluding
Global Offshore) to execute and deliver continuing guaranties in form
and substance similar to the Guaranties so that after the execution
and delivery of such Guaranties the total assets and annual gross
revenues of the then non-guaranteeing Consolidated Subsidiaries
(excluding Global Offshore) shall be 10% or less than the total assets
and total annual gross revenues of all Consolidated Subsidiaries,
taken as a whole.
12. NEGATIVE COVENANTS. A deviation from the provisions of this
Section 12 shall not constitute an Event of Default under this Agreement if
such deviation is consented to in writing by Majority Banks. Without the prior
written consent of Majority Banks, Borrower and each Guarantor will (and
Borrower will cause each other Consolidated Subsidiary) at all times comply
with the covenants contained in this Section 12 from the date hereof and for so
long as the Revolving Commitment is in existence or any part of the Revolving
Loan is outstanding.
(a) Negative Pledge. Neither Borrower nor any
Consolidated Subsidiary shall without the prior written consent of the
Banks create, incur, assume or permit to exist any Lien, on any of its
assets or properties except Permitted Liens.
(b) Current Ratio. Borrower will not allow its ratio of
Current Assets to Current Liabilities to be less than 1.2 to 1.0 as of
the end of any fiscal quarter.
(c) Minimum Fixed Charge Ratio. Borrower will not allow
its Fixed Charge Ratio to ever be less than 2.0 to 1.0, as of the end
of any fiscal quarter.
(d) Maximum Total Debt Ratio. Borrower will not allow
its ratio of total Debt plus Capital Lease Obligations, to total Debt
plus Shareholder's Equity, as determined in accordance with GAAP, to
ever exceed 50%, as of the end of any fiscal quarter.
(e) Pre-Tax Losses. Borrower shall not incur or suffer
negative Pre-Tax Income for any fiscal year, calculated at the end of
each fiscal year.
(f) Consolidations, Mergers and Acquisitions. Neither
Borrower nor any Consolidated Subsidiary will consolidate or merge
with or into any other Person, except that (i) Borrower or any
Consolidated Subsidiary may merge with another Person if Borrower or
such Consolidated Subsidiary is the surviving entity in such merger
and (ii) any Consolidated Subsidiary may merge with another
Consolidated Subsidiary if, after giving effect to any such merger or
consolidation, no Default or Event of Default shall have occurred and
be continuing. Neither Borrower nor any Consolidated Subsidiary will
acquire any business entity for a cost or purchase obligation
exceeding $5,000,000 if the
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business entity to be acquired is outside Borrower's or such
Consolidated Subsidiary's Primary Lines of Business as they exist on
the Effective Date.
(g) Debts, Guaranties and Other Obligations. Neither
Borrower nor any Consolidated Subsidiary will (A) incur, create,
assume or in any manner become or be liable in respect of any Debt,
(B) issue preferred stock that is mandatorily redeemable at any time
prior to the Revolving Maturity Date or (C) guarantee or otherwise in
any manner become or be liable in respect of any Debt of any other
person or entity, whether by agreement to purchase the Debt of any
other person or entity or agreement for the furnishing of funds to any
other person or entity through the purchase or lease of goods,
supplies or services (or by way of stock purchase, capital
contribution, advance or loan) for the purpose of paying or
discharging the Debt of any other person or entity, or otherwise,
except that the foregoing restrictions shall not apply to:
(i) the Notes and any renewal or increase
thereof, or other indebtedness of Borrower and any
Consolidated Subsidiary heretofore disclosed to Banks in
Borrower's or any Financial Statements or on Schedule "2"
hereto; or
(ii) taxes, assessments or other government
charges which are not yet due or are being contested in good
faith by appropriate action promptly initiated and diligently
conducted, if such reserve as shall be required by GAAP shall
have been made therefor and levy and execution thereon have
been stayed and continue to be stayed; or
(iii) indebtedness for borrowed money not in excess
of $5,000,000 in the aggregate during any fiscal year; or
(iv) indebtedness (other than in connection with a
loan or lending transaction) incurred in the ordinary course
of business; or
(v) guarantees by the Borrower required for
normal operations of the Consolidated Subsidiaries in the
ordinary course of business; or
(vi) guarantees by the Borrower or any of the
Consolidated Subsidiaries to third parties in an aggregate
amount not to exceed $500,000; or
(vii) performance and currency exchange risk
guarantees given by Borrower on behalf of CCC Fabricaciones y
Construcciones S.A. de C.V. ("CCC") for job and project
completion costs performed in CCC's normal day-to-day
operations, which performance and currency exchange risk
guarantees involve an amount not to exceed in the aggregate
outstanding at any one time the sum of $50,000,000.00; or
(viii) guarantees of obligations of CCC to Bank One,
Texas, N.A. as Agent for itself and other financial
institutions pursuant to that certain Credit Agreement dated
of even date herewith among CCC and Bank One, Texas, N.A., et
al.; or
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(ix) renewals or extensions of any or all of the
foregoing.
(h) Nature of Business. Neither Borrower nor any
Consolidated Subsidiary will permit any material change to be made in
its Primary Lines of Business as carried on at the date hereof, except
to the extent permitted by the last sentence of Section 12(f).
(i) Transactions with Subsidiaries and Affiliates.
Borrower will not enter into any transaction with any Affiliate other
than the Consolidated Subsidiaries and CCC, except transactions upon
terms that are no less favorable to it than would be obtained in a
transaction negotiated at arm's length with an unrelated third party.
(j) Change in Key Management. The Borrower shall not
permit any Change of Key Management.
(k) Dividends. The Borrower shall not declare or pay any
dividend, purchase, redeem or otherwise acquire for value any of its
preferred or common stock now or hereafter outstanding, return any
capital to its stockholders or make any distribution of its assets to
a stockholder as such, except that the foregoing shall not apply to
(i) cash dividends in an amount not in excess of thirty percent (30%)
of Borrower's cumulative Net Income after March 31, 1996, and (ii)
stock dividends; provided, however, that immediately before, and after
giving effect thereto, no Default or Event of Default shall exist.
(l) Loans and Advances to Unaffiliated Persons. Neither
Borrower nor any Consolidated Subsidiary shall make or permit to
remain outstanding any loans or advances to any unaffiliated Person or
entity, except the foregoing restriction shall not apply to:
(i) loans or advances to any Person which are set
forth in the Financial Statements of the Borrower and the
Consolidated Subsidiaries heretofore furnished to the Banks;
or
(ii) loans or advances made to CCC; or
(iii) loans or advances not in excess of $500,000
in the aggregate outstanding at any one time; or
(iv) loans or advances to employees pursuant to
employee benefit arrangements or otherwise consistent with
Borrower's or any Consolidated Subsidiary's practice.
(m) Investments. Neither Borrower nor any Consolidated
Subsidiary shall make any investments in any Person or entity, except
such restriction shall not apply to:
(i) investments, direct obligations or repurchase
agreements by the United States of America or any agency or
instrumentality thereof; or
(ii) investments in certificates of deposit issued
by Agent or certificates of deposit or banker's acceptances
with maturities of less than
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one year, issued by other commercial banks in the United
States having capital and surplus in excess of $500,000,000; or
(iii) commercial paper rated in the highest two
short-term debt categories by at least one of the six NRSRO's;
or
(iv) corporate notes rated A or better by ▇▇▇▇▇'▇
or Standard & Poors; or
(v) Money Market Mutual Funds, master notes and
private placements rated by one or more NRSRO's as Tier 1 or
the equivalent; or
(vi) investments in its Primary Lines of Business;
or
(vii) investments permitted by the last sentence of
Section 12(f).
(n) Sale of Assets. Neither Borrower nor any
Consolidated Subsidiary shall sell, transfer or otherwise dispose of
any assets in excess of $5,000,000.00 in any fiscal year, other than
assets sold in the ordinary course of their respective businesses.
(o) Stock of Global Offshore. Borrower shall not (i)
sell, transfer or otherwise dispose of any of the voting stock of
Global Offshore or (ii) create, incur, assume or permit to exist any
Lien, on any of the voting stock of Global Offshore except the Lien
granted to the Banks and Permitted Liens.
13. EVENTS OF DEFAULT. Any one or more of the following events
shall be considered an "Event of Default" as that term is used herein:
(a) Borrower shall fail to pay when due or declared due
the principal of, and the interest on, the Notes, or any fee or any
other indebtedness or Secured Obligation of Borrower or any Guarantor
incurred pursuant to this Agreement or any other Loan Document; or
(b) Any representation or warranty made under this
Agreement or in the Guaranties, or in any certificate or statement
furnished or made to the Banks pursuant hereto, or in connection
herewith, or in connection with any document furnished hereunder,
shall prove to be untrue in any material respect as of the date on
which such representation or warranty is made (or deemed made), or any
representation, statement (including financial statements),
certificate, report or other data furnished or to be furnished or made
under any Loan Document, including this Agreement, proves to have been
untrue in any material respect, as of the date as of which the facts
therein set forth were stated or certified; or
(c) Default shall be made in the due observance or
performance of any of the covenants or agreements contained in the
Loan Documents, including this Agreement (excluding covenants
contained in Section 12(a), (b), (c), (d), (e), (f), (g), (k) and (n)
of this Agreement for which there is not cure period), and such
default shall continue for more than thirty (30) days after written
notice thereof from the Agent; or
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(d) Default shall be made in the due observance or
performance of the covenants contained in Section 12(a), (b), (c),
(d), (e), (f), (g), (k) and (n) of this Agreement; or
(e) Default shall be made in respect of any obligation
for borrowed money, other than the Notes, in an aggregate outstanding
principal amount of $1,000,000 or more, for which Borrower or any
Consolidated Subsidiary is liable (directly, by assumption, as
guarantor or otherwise), or any obligations secured by any mortgage,
pledge or other security interest, lien, charge or encumbrance with
respect thereto, on any asset or property of Borrower or any
Consolidated Subsidiary or in respect of any agreement relating to any
such obligations unless Borrower or such Consolidated Subsidiary is
not liable for same (i.e., unless remedies or recourse for failure to
pay such obligations is limited to foreclosure of the collateral
security therefor), and if such default shall continue beyond the
applicable grace period, if any; or
(f) Borrower or any Consolidated Subsidiary shall
commence a voluntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking an appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any
corporate action authorizing the foregoing; or
(g) An involuntary case or other proceeding, shall be
commenced against Borrower or any Consolidated Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of
ninety (90) days; or an order for relief shall be entered against
Borrower or any Consolidated Subsidiary under the federal bankruptcy
laws as now or hereinafter in effect; or
(h) A final judgment or order for the payment of money in
excess of $5,000,000 (or judgments or orders aggregating in excess of
$5,000,000) shall be rendered against Borrower or any of the
Consolidated Subsidiaries and such judgments or orders are not fully
covered by insurance shall continue unsatisfied and unstayed for a
period of sixty (60) days after such judgment or order becomes final;
or
(i) A Change of Key Management shall occur, without
succession reasonably acceptable to Agent.
Upon occurrence of any Event of Default specified in Subsections 13(f)
and (g) hereof, the entire principal amount due under the Note and all interest
then accrued thereon, and any other liabilities of Borrower hereunder, shall
become immediately due and payable all without
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notice and without presentment, demand, protest, notice of protest or dishonor
or any other notice of default of any kind, all of which are hereby expressly
waived by Borrower. In any other Event of Default, the Agent, upon request of
Majority Banks, shall by notice to Borrower declare the principal of, and all
interest then accrued on, the Notes and any other liabilities hereunder to be
forthwith due and payable, whereupon the same shall forthwith become due and
payable without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or other notice of any kind, all of which Borrower and
each Guarantor hereby expressly waive, anything contained herein or in the Note
to the contrary notwithstanding. Nothing contained in this Section 13 shall be
construed to limit or amend in any way the Events of Default enumerated in the
Note, or any other document executed in connection with the transaction
contemplated herein.
Upon the occurrence and during the continuance of any Event of
Default, the Banks are hereby authorized at any time and from time to time,
without notice to Borrower or any Guarantor (any such notice being expressly
waived by Borrower and the Guarantors), to set-off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by any of the Banks to or for the
credit or the account of Borrower or any Guarantor against any and all of the
indebtedness of Borrower and the Guarantors under the Notes and the Loan
Documents, including this Agreement, irrespective of whether or not the Banks
shall have made any demand under the Loan Documents, including this Agreement
or the Notes and although such indebtedness may be unmatured. Any amount
set-off by any of the Banks shall be applied against the indebtedness owed the
Banks by Borrower and the Guarantors pursuant to this Agreement and the Notes.
The Banks agree promptly to notify Borrower and the Guarantors after any such
setoff and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Bank
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Banks may have.
14. THE AGENT AND THE BANKS.
(a) Appointment and Authorization. Each Bank hereby
appoints Agent as its nominee and agent, in its name and on its
behalf: (i) to act as nominee for and on behalf of such Bank in and
under all Loan Documents; (ii) to arrange the means whereby the funds
of Banks are to be made available to Borrower under the Loan
Documents; (iii) to take such action as may be requested by any Bank
under the Loan Documents (when such Bank is entitled to make such
request under the Loan Documents); (iv) to receive all documents and
items to be furnished to Banks under the Loan Documents; (v) to be the
secured party, mortgagee, beneficiary, and similar party in respect
of, and to receive, as the case may be, any collateral for the benefit
of Banks; (vi) to promptly distribute to each Bank all material
information, requests, documents and items received from Borrower
under the Loan Documents; (vii) to promptly distribute to each Bank
such Bank's Pro Rata Part of each payment or prepayment (whether
voluntary, as proceeds of insurance thereon, or otherwise) in
accordance with the terms of the Loan Documents and (viii) to deliver
to the appropriate Persons requests, demands, approvals and consents
received from Banks. Each Bank hereby authorizes Agent to take all
actions and to exercise such powers under the Loan Documents as are
specifically delegated to such Agent by the terms hereof or thereof,
together with all other powers reasonably incidental thereto. With
respect to its commitments hereunder and the Notes issued to it, Agent
and
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any successor Agent shall have the same rights under the Loan
Documents as any other Bank and may exercise the same as though it
were not the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include Agent and any successor Agent
in its capacity as a Bank. Agent and any successor Agent and its
Affiliates may accept deposits from, lend money to, act as trustee
under indentures of and generally engage in any kind of business with
Borrower, and any person which may do business with Borrower, all as
if Agent and any successor Agent were not Agent hereunder and without
any duty to account therefor to the Banks; provided that, if any
payments in respect of any property (or the proceeds thereof) now or
hereafter in the possession or control of Agent which may be or become
security for the obligations of Borrower arising under the Loan
Documents by reason of the general description of indebtedness secured
or of property contained in any other agreements, documents or
instruments related to any such other business shall be applied to
reduction of the obligations of Borrower arising under the Loan
Documents, then each Bank shall be entitled to share in such
application according to its pro rata part thereof. Each Bank, upon
request of any other Bank, shall disclose to all other Banks all
indebtedness and liabilities, direct and contingent, of Borrower to
such Bank as of the time of such request.
(b) Note Holders. From time to time as other Banks
become a party to this Agreement after receiving the consent of
Borrower, Agent shall obtain execution by Borrower of additional Notes
in amounts representing the Revolving Commitment of each such new
Bank, up to an aggregate face amount of all Revolving Notes not
exceeding the Revolving Commitment. The obligation of such Bank shall
be governed by the provisions of this Agreement, including but not
limited to, the obligations specified in Section 2 hereof. From time
to time, Agent may require that the Banks exchange their Notes for
newly issued Notes to better reflect the Revolving Commitments of the
Banks. Agent may treat the payee of any Note as the holder thereof
until written notice of transfer has been filed with it, signed by
such payee and in form satisfactory to Agent.
(c) Consultation with Counsel. Banks agree that Agent
may consult with legal counsel selected by Agent and shall not be
liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
(d) Documents. Agent shall not be under a duty to
examine or pass upon the validity, effectiveness, enforceability,
genuineness or value of any of the Loan Documents or any other
instrument or document furnished pursuant thereto or in connection
therewith, and Agent shall be entitled to assume that the same are
valid, effective, enforceable and genuine and what they purport to be.
(e) Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below,
Agent may resign at any time by giving written notice thereof to Banks
and Borrower, and Agent may be removed at any time with or without
cause by Majority Banks. If no successor Agent has been s so
appointed by Majority Banks (and approved by Borrower) and has
accepted such appointment within 30 days after the retiring Agent's
giving of notice of resignation or removal of the retiring Agent, then
the retiring Agent may, on behalf of Banks, appoint a successor Agent.
Any successor Agent must be approved by Borrower, which approval will
not be unreasonably withheld. Upon the acceptance of any appointment
as Agent
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hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the
retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this
Section 14 shall continue in effect for its benefit in respect to any
actions taken or omitted to be taken by it while it was acting as
Agent.
(f) Responsibility of Agent. It is expressly understood
and agreed that the obligations of Agent under the Loan Documents are
only those expressly set forth in the Loan Documents and that Agent,
as the case may be, shall be entitled to assume that no Default or
Event of Default has occurred and is continuing, unless Agent, as the
case may be, has actual knowledge of such fact or has received notice
from a Bank or Borrower that such Bank or Borrower consider that a
Default or an Event of Default has occurred and is continuing and
specifying the nature thereof. Neither Agent nor any of their
directors, officers, attorneys or employees shall be liable for any
action taken or omitted to be taken by them under or in connection
with the Loan Documents, except for its or their own gross negligence
or willful misconduct. Agent shall incur no liability under or in
respect of any of the Loan Documents by acting upon any notice,
consent, certificate, warranty or other paper or instrument believed
by it to be genuine or authentic or to be signed by the proper party
or parties, or with respect to anything which it may do or refrain
from doing in the reasonable exercise of its judgment, or which may
seem to it to be necessary or desirable.
Agent shall not be responsible to Banks for any of Borrower's
or any Guarantor's recitals, statements, representations or warranties
contained in any of the Loan Documents, or in any certificate or other
document referred to or provided for in, or received by any Bank
under, the Loan Documents, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of or any of the Loan
Documents or for any failure by Borrower or any Guarantor to perform
any of their obligations hereunder or thereunder. Agent may employ
agents and attorneys-in-fact and shall not be answerable, except as to
money or securities received by it or its authorized agents, for the
negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
The relationship between Agent and each Bank is only that of
agent and principal and has no fiduciary aspects. Nothing in the Loan
Documents or elsewhere shall be construed to impose on Agent any
duties or responsibilities other than those for which express
provision is therein made. In performing its duties and functions
hereunder, Agent does not assume and shall not be deemed to have
assumed, and hereby expressly disclaims, any obligation or
responsibility toward or any relationship of agency or trust with or
for Borrower or any of its beneficiaries or other creditors. As to
any matters not expressly provided for by the Loan Documents, Agent
shall not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the
instructions of all Banks and such instructions shall be binding upon
all Banks and all holders of the Notes; provided, however, that Agent
shall not be required to take any action which is contrary to the Loan
Documents or applicable law.
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Agent shall have the right to exercise or refrain from
exercising, without notice or liability to the Banks, any and all
rights afforded to Agent, as the case may be, by the Loan Documents or
which Agent may have as a matter of law; provided, however, Agent
shall not, without the consent of Majority Banks, take any other
action with regard to amending the Loan Documents, waiving any default
under the Loan Documents or taking any other action with respect to
the Loan Documents which requires consent of Majority Banks. Provided
further, however, that no amendment, waiver, or other action shall be
effected pursuant to the preceding sentence without the consent of all
Banks which: (i) would increase the Revolving Commitment amount of any
Bank, (ii) would reduce any fees hereunder, or the principal of, or
the interest on, any Bank's Note or Notes, (iii) would postpone any
date fixed for any payment of any fees hereunder, or any principal or
interest of any Bank's Note or Notes, (iv) would materially increase
any Bank's obligations hereunder or would materially alter Agent's
obligations to any Bank hereunder, (v) would release Borrower from its
obligation to pay any Bank's Note or Notes, or (vi) would amend this
sentence. For purposes of this paragraph, a Bank shall be deemed to
have consented to any such action by Agent upon the passage of five
(5) Business Days after written notice thereof is given to such Bank
in accordance with Section 16 hereof, unless such Bank shall have
previously given Agent notice, complying with the provision of Section
16 hereof, to the contrary. Agent shall not have liability to Banks
for failure or delay in exercising any right or power possessed by
Agent pursuant to the Loan Documents or otherwise unless such failure
or delay is caused by the gross negligence of the Agent.
(g) Independent Investigation. Each Bank severally
represents and warrants to Agent that it has made its own independent
investigation and assessment of the financial condition and affairs of
Borrower in connection with the making and continuation of its
participation hereunder and has not relied exclusively on any
information provided to such Bank by Agent in connection herewith, and
each Bank represents, warrants and undertakes to Agent that it shall
continue to make its own independent appraisal of the credit
worthiness of Borrower while the Notes are outstanding or its
commitments hereunder are in force. Agent shall not be required to
keep itself informed as to the performance or observance by Borrower
of this Agreement or any other document referred to or provided for
herein or to inspect the properties or books of Borrower. Other than
as provided in this Agreement, Agent shall not have any duty,
responsibility or liability to provide any Bank with any credit or
other information concerning the affairs, financial condition or
business of Borrower which may come into the possession of Agent.
(h) Indemnification. Banks agree to indemnify Agent,
ratably according to their respective Revolving Commitments on a Pro
Rata basis, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any proper and reasonable kind or nature
whatsoever which may be imposed on, incurred by or asserted against
Agent in any way relating to or arising out of the Loan Documents or
any action taken or omitted by Agent under the Loan Documents,
provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
Agent's gross negligence or willful misconduct. Each Bank shall be
entitled to be reimbursed by the Agent for any amount such Bank paid
to Agent under this Section 14(h) to the extent the Agent has been
reimbursed for such payments
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by Borrower or any other Person. THE PARTIES INTEND FOR THE
PROVISIONS OF THIS SECTION TO APPLY TO AND PROTECT THE AGENT FROM THE
CONSEQUENCES OF ANY LIABILITY INCLUDING STRICT LIABILITY IMPOSED OR
THREATENED TO BE IMPOSED ON AGENT AS WELL AS FROM THE CONSEQUENCES OF
ITS OWN NEGLIGENCE, WHETHER OR NOT THAT NEGLIGENCE IS THE SOLE,
CONTRIBUTING OR CONCURRING CAUSE OF ANY SUCH LIABILITY.
(i) Benefit of Section 14. The agreements contained in
this Section 14 are solely for the benefit of Agent and the Banks and
are not for the benefit of, or to be relied upon by, Borrower, any
affiliate of Borrower or any other person.
(j) Pro Rata Treatment. Subject to the provisions of
this Agreement, each payment (including each prepayment) by Borrower
or any Guarantor and collection by Banks (including offsets) on
account of the principal of and interest on the Notes and fees
provided for in this Agreement, payable by Borrower or any Guarantor
shall be made Pro Rata; provided, however, in the event that any
Defaulting Bank shall have failed to make an Advance as contemplated
under Section 3 hereof and Agent or another Bank or Banks shall have
made such Advance, payment received by Agent for the account of such
Defaulting Bank or Banks shall not be distributed to such Defaulting
Bank or Banks until such Advance or Advances shall have been repaid in
full to the Bank or Banks who funded such Advance or Advances.
(k) Assumption as to Payments. Except as specifically
provided herein, unless Agent shall have received notice from Borrower
prior to the date on which any payment is due to Banks hereunder that
Borrower will not make such payment in full, Agent may, but shall not
be required to, assume that Borrower has made such payment in full to
Agent on such date and Agent may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal
to the amount then due such Bank. If and to the extent Borrower shall
not have so made such payment in full to Agent, each Bank shall repay
to Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such
amount to Agent, at the interest rate applicable to such portion of
the Revolving Loan.
(l) Other Financings. Without limiting the rights to
which any Bank otherwise is or may become entitled, such Bank shall
have no interest, by virtue of this Agreement or the Loan Documents,
in (a) any present or future loans from, letters of credit issued by,
or leasing or other financial transactions by, any other Bank to, on
behalf of, or with Borrower or any Guarantor (collectively referred to
herein as "Other Financings") other than the obligations hereunder;
(b) any present or future guarantees by or for the account of Borrower
or any Guarantor which are not contemplated by the Loan Documents; (c)
any present or future property taken as security for any such Other
Financings; or (d) any property now or hereafter in the possession or
control of any other Bank which may be or become security for the
obligations of Borrower or any Guarantor arising under any loan
document by reason of the general description of indebtedness secured
or property contained in any other agreements, documents or
instruments relating to any such Other Financings.
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(m) Interests of Banks. Nothing in this Agreement shall
be construed to create a partnership or joint venture between Banks
for any purpose. Agent, Banks and Borrower recognizes that the
respective obligations of Banks under the Revolving Commitments shall
be several and not joint and that neither Agent, nor any of Banks
shall be responsible or liable to perform any of the obligations of
the other under this Agreement. Each Bank is deemed to be the owner
of an undivided interest in and to all rights, titles, benefits and
interests belonging and accruing to Agent under the Security
Instruments, including, without limitation, liens and security
interests in any collateral, fees and payments of principal and
interest by Borrower under the Revolving Commitments on a Pro Rata
basis. Each Bank shall perform all duties and obligations of Banks
under this Agreement in the same proportion as its ownership interest
in the Loans outstanding at the date of determination thereof.
(n) Investments. Whenever Agent in good faith determines
that it is uncertain about how to distribute to Banks any funds which
it has received, or whenever Agent in good faith determines that there
is any dispute among the Banks about how such funds should be
distributed, Agent may choose to defer distribution of the funds which
are the subject of such uncertainty or dispute. If Agent in good
faith believes that the uncertainty or dispute will not be promptly
resolved, or if Agent is otherwise required to invest funds pending
distribution to the Banks, Agent may invest such funds pending
distribution (at the risk of Borrower). All interest on any such
investment shall be distributed upon the distribution of such
investment and in the same proportions and to the same Persons as such
investment. All monies received by Agent for distribution to the
Banks (other than to the Person who is Agent in its separate capacity
as a Bank) shall be held by the Agent pending such distribution solely
as Agent for such Banks, and Agent shall have no equitable title to
any portion thereof.
15. EXERCISE OF RIGHTS. No failure to exercise, and no delay in
exercising, on the part of the Agent or the Banks, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right. The rights of the Agent and the Banks hereunder shall be in addition to
all other rights provided by law. No modification or waiver of any provision
of the Loan Documents, including this Agreement, or the Note nor consent to
departure therefrom, shall be effective unless in writing, and no such consent
or waiver shall extend beyond the particular case and purpose involved. No
notice or demand given in any case shall constitute a waiver of the right to
take other action in the same, similar or other circumstances without such
notice or demand.
16. NOTICES. Any notices or other communications required or
permitted to be given by this Agreement or any other documents and instruments
referred to herein must be given in writing (which may be by facsimile
transmission) and must be personally delivered or mailed by prepaid certified
or registered mail to the party to whom such notice or communication is
directed at the address of such party as follows: (a) BORROWER and GUARANTORS:
c/o GLOBAL INDUSTRIES, LTD., ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (70503),
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇; Attention: ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; and (b) AGENT and BANKS: ▇/▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, NATIONAL ASSOCIATION, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 9th Floor,
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President. Any such notice or other
communication shall be deemed to have been given (whether actually received or
not) on the day it is personally delivered or delivered by facsimile as
aforesaid or, if mailed, on the third day after it is mailed as aforesaid. Any
party may change its address for purposes of this Agreement by giving notice of
such change to the other party pursuant to this Section 16.
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17. EXPENSES. Borrower shall pay (i) all reasonable and necessary
out-of-pocket expenses of the Banks, including reasonable fees and
disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement, the other Loan Documents, title and other due
diligence and closing of the transaction described in this Agreement, any
waiver or consent hereunder or any amendment hereof or any default or Event of
Default or alleged default or Event of Default hereunder, (ii) all reasonable
and necessary out-of-pocket expenses of the Agent, including reasonable fees
and disbursements of special counsel for the Agent in connection with the
preparation of any participation agreement for a participant or participants
requested by Borrower or any amendment thereof and (iii) if a default or an
Event of Default occurs, all reasonable and necessary out-of-pocket expenses
incurred by the Banks, including fees and disbursements of counsel, in
connection with such default and Event of Default and collection and other
enforcement proceedings resulting therefrom. Borrower shall indemnify the
Banks against any transfer taxes, document taxes, assessments or charges made
by any governmental authority by reason of the execution, delivery and filing
of the Loan Documents.
18. INDEMNITY. Borrower agrees to indemnify and hold harmless the
Banks and their respective officers, employees, agents, attorneys and
representatives (singularly, an "Indemnified Party", and collectively, the
"Indemnified Parties") from and against any loss, cost, liability, damage or
expense (including the reasonable fees and out-of-pocket expenses of counsel to
the Banks, including all local counsel hired by such counsel) ("Claim")
incurred by the Banks in investigating or preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect
of any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities law, federal or state environmental
law, or any other statute of any jurisdiction, or any regulation, or at common
law or otherwise, which is alleged to arise out of or is based upon any acts,
practices or omissions or alleged acts, practices or omissions of Borrower or
its agents or arises in connection with the duties, obligations or performance
of the Indemnified Parties in negotiating, preparing, executing, accepting,
keeping, completing, countersigning, issuing, selling, delivering, releasing,
assigning, handling, certifying, processing or receiving or taking any other
action with respect to the Loan Documents and all documents, items and
materials contemplated thereby even if any of the foregoing arises out of an
Indemnified Party's ordinary negligence. The indemnity set forth herein shall
be in addition to any other obligations or liabilities of Borrower to the Banks
hereunder or at common law or otherwise, and shall survive any termination of
this Agreement, the expiration of the Revolving Loan and the payment of all
indebtedness of Borrower to the Banks hereunder and under the Notes, provided
that Borrower shall have no obligation under this Section to the Bank with
respect to any of the foregoing arising out of the gross negligence or willful
misconduct of the Bank. If any Claim is asserted against any Indemnified
Party, the Indemnified Party shall endeavor to notify Borrower of such Claim
(but failure to do so shall not affect the indemnification herein made except
to the extent of the actual harm caused by such failure). The Indemnified
Party shall have the right to employ, at Borrower's expense, counsel of the
Indemnified Parties' choosing and to control the defense of the Claim.
Borrower may at its own expense also participate in the defense of any Claim.
Each Indemnified Party may employ separate counsel in connection with any Claim
to the extent such Indemnified Party believes it reasonably prudent to protect
such Indemnified Party. THE PARTIES INTEND FOR THE PROVISIONS OF THIS SECTION
TO APPLY TO AND PROTECT EACH INDEMNIFIED PARTY FROM THE
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CONSEQUENCES OF ANY LIABILITY INCLUDING STRICT LIABILITY IMPOSED OR THREATENED
TO BE IMPOSED ON AGENT AS WELL AS FROM THE CONSEQUENCES OF ITS OWN NEGLIGENCE,
WHETHER OR NOT THAT NEGLIGENCE IS THE SOLE, CONTRIBUTING, OR CONCURRING CAUSE
OF ANY CLAIM.
19. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF LOUISIANA
AND THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE
PARTIES HERETO AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION
OF THIS AGREEMENT, THE REVOLVING NOTES AND THE GUARANTIES AND OTHER LOAN
DOCUMENTS.
20. INVALID PROVISIONS. If any provision of this Agreement or any
of the Loan Documents is held to be illegal, invalid, or unenforceable under
present or future laws effective during the term of this Agreement or such Loan
Document, such provisions shall be fully severable and this Agreement or such
Loan Document shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of the Agreement or such Loan Document shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
21. MAXIMUM INTEREST RATE. Regardless of any provisions contained
in this Agreement or in any other documents and instruments referred to herein,
the Banks shall never be deemed to have contracted for or be entitled to
receive, collect or apply as interest on the Notes any amount in excess of the
Maximum Rate, and in the event any Bank ever receives, collects or applies as
interest any such excess, of if an acceleration of the maturities of any Notes
or if any prepayment by Borrower result in Borrower having paid any interest in
excess of the Maximum Rate, such amount which would be excessive interest shall
be applied to the reduction of the unpaid principal balance of the Notes for
which such excess was received, collected or applied, and, if the principal
balance of such Note is paid in full, any remaining excess shall forthwith be
paid to Borrower. All sums paid or agreed to be paid to the Banks for the use,
forbearance or detention of the indebtedness evidenced by the Notes and/or this
Agreement shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed the Maximum Rate. In determining whether or not
the interest paid or payable under any specific contingency exceeds the Maximum
Rate of interest permitted by law, Borrower and the Banks shall, to the maximum
extent permitted under applicable law, (i) characterize any non-principal
payment as an expense, fee or premium, rather than as interest; and (ii)
exclude voluntary prepayments and the effect thereof; and (iii) compare the
total amount of interest contracted for, charged or received with the total
amount of interest which could be contracted for, charged or received
throughout the entire contemplated term of the Note at the Maximum Rate.
22. AMENDMENTS. This Agreement may be amended only by an
instrument in writing executed by an authorized officer of the party against
whom such amendment is sought to be enforced.
23. MULTIPLE COUNTERPARTS. This Agreement may be executed in a
number of identical separate counterparts, each of which for all purposes is to
be deemed an original, but all of which shall constitute, collectively, one
agreement. No party to this Agreement shall be bound hereby until a
counterpart of this Agreement has been executed by all parties hereto.
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24. CONFLICT. In the event any term or provision hereof is
inconsistent with or conflicts with any provision of the Loan Documents, the
terms or provisions contained in this Agreement shall be controlling.
25. SURVIVAL. All covenants, agreements, undertakings,
representations and warranties made in the Loan Documents, including this
Agreement, the Notes, the Guaranties or other documents and instruments
referred to herein shall survive all closings hereunder and shall not be
affected by any investigation made by any party.
26. PARTIES BOUND. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns,
heirs, legal representatives and estates, provided, however, that Borrower may
not, without the prior written consent of the Banks, assign any rights, powers,
duties or obligations hereunder.
27. CONSTRUCTION. Each party hereto acknowledges that each has
had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and all related Loan Documents and other
papers with its legal counsel and that this Agreement and the related Loan
Documents and other papers shall be construed as if jointly drafted by the
parties hereto.
28. TERMINATION. This Agreement shall not terminate until the
Secured Obligations and any and all liabilities and obligations owed to the
Banks by the Borrower in connection with the transactions contemplated by this
Agreement have been fully satisfied and the Banks shall have no further
obligation to make any advances hereunder or otherwise to the Borrower.
29. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Bank shall have the right to sell, assign or
transfer all or any part of its Note or Notes, its Revolving
Commitments and its rights and obligations hereunder to one or more
Affiliates, Banks, financial institutions, pension plans, investment
funds, or similar Persons or to a Federal Reserve Bank; provided, that
with each sale, assignment or transfer (other than to an Affiliate, a
Bank or a Federal Reserve Bank), shall require the consent of Borrower
and Agent, which consents will not be unreasonably withheld, and the
assignee, transferee or recipient shall have, to the extent of such
sale, assignment, or transfer, the same rights, benefits and
obligations as it would if it were such Bank and a holder of such
Note, Revolving Commitment and rights and obligations, including,
without limitation, the right to vote on decisions requiring consent
or approval of all Banks or Majority Banks and the obligation to fund
its Revolving Commitment; provided, further, that (1) each such sale,
assignment, or transfer (other than to an Affiliate, a Bank or a
Federal Reserve Bank) shall be in an aggregate principal amount not
less than $5,000,000, (2) each remaining Bank shall at all times
maintain Revolving Commitment then outstanding in an aggregate
principal amount at least equal to $5,000,000; (3) no Bank may offer
to sell its Note or Notes, Revolving Commitment, rights and
obligations or interests therein in violation of any securities laws;
and (4) no such assignments (other than to a Federal Reserve Bank)
shall become effective until the assigning Bank and its assignees
delivers to Agent and Borrower an Assignment and Acceptance and the
Note
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or Notes subject to such assignment and other documents evidencing any
such assignment. An assignment fee in the amount of $2,500 for each
such assignment (other than to an Affiliate, a Bank or the Federal
Reserve Bank) will be payable to Agent by assignor or assignee.
Within five (5) Business Days after its receipt of copies of the
Assignment and Acceptance and the other documents relating thereto and
the Note or Notes, Borrower shall execute and deliver to Agent (for
delivery to the relevant assignee) a new Note or Notes evidencing such
assignee's assigned Revolving Commitment and if the assignor Bank has
retained a portion of its Revolving Commitment, a replacement Note in
the principal amount of the Revolving Commitment retained by the
assignor (except as provided in the last sentence of this paragraph
(a) such Note or Notes to be in exchange for, but not in payment of,
the Note or Notes held by such Bank). On and after the effective date
of an assignment hereunder, the assignee shall for all purposes be a
Bank, party to this Agreement and any other Loan Document executed by
the Banks and shall have all the rights and obligations of a Bank
under the Loan Documents, to the same extent as if it were an original
party thereto, and no further consent or action by Borrower, Banks or
the Agent shall be required to release the transferor Bank with
respect to its Revolving Commitment assigned to such assignee and the
transferor Bank shall henceforth be so released.
(b) Each Bank shall have the right to grant
participations in all or any part of such Bank's Notes and Revolving
Commitment hereunder to one or more pension plans, investment funds,
financial institutions or other Persons, provided, that:
(i) each Bank granting a participation shall
retain the right to vote hereunder, and no participant shall
be entitled to vote hereunder on decisions requiring consent
or approval of Bank or Majority Banks (except as set forth in
(iii) below);
(ii) in the event any Bank grants a participation
hereunder, such Bank's obligations under the Loan Documents
shall remain unchanged, such Bank shall remain solely
responsible to the other parties hereto for the performance of
such obligations, such Bank shall remain the holder of any
such Note or Notes for all purposes under the Loan Documents,
and Agent, each Bank and Borrower shall be entitled to deal
with the Bank granting a participation in the same manner as
if no participation had been granted;
(iii) no participant shall ever have any right by
reason of its participation to exercise any of the rights of
Banks hereunder, except that any Bank may agree with any
participant that such Bank will not, without the consent of
such participant (which consent may not be unreasonably
withheld) consent to any amendment or waiver requiring
approval of all Banks; and
(iv) no Bank may grant any participation in
violation of any Federal or state securities laws.
(c) It is understood and agreed that any Bank may provide
to assignees and participants and prospective assignees and
participants financial information and reports
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and data concerning Borrower's properties and operations which was
provided to such Bank pursuant to this Agreement; provided that such
Person agrees to be bound by the confidentiality provisions of Section
33.
(d) Upon the reasonable request of either Agent or
Borrower, each Bank will identify those to whom it has assigned or
participated any part of its Notes and Revolving Commitment, and
provide the amounts so assigned or participated.
30. OTHER AGREEMENTS. THIS AGREEMENT, THE REVOLVING NOTE OR NOTES
AND THE GUARANTIES SET FORTH THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR WRITTEN AND ORAL
UNDERSTANDINGS BETWEEN THE BORROWER, THE GUARANTORS, THE AGENT AND THE BANKS
AND ANY OTHER PARTIES WITH RESPECT TO THE MATTERS HEREIN SET FORTH. THIS
WRITTEN CREDIT AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE BANKS AND ANY OF THE OTHER PARTIES TO THIS AGREEMENT.
31. JURY TRIAL WAIVER. IN THE EVENT IT IS NECESSARY TO RESORT TO
JUDICIAL ACTION TO ENFORCE RIGHTS HEREUNDER, THEN THE AGENT, THE BANKS, THE
GUARANTORS AND THE BORROWER, HEREBY AGREE THAT TO THE EXTENT PERMITTED BY
APPLICABLE LAW ANY SUCH JUDICIAL ACTION, INCLUDING ANY OPPOSITION TO SUCH
ACTION, RECONVENTIONAL DEMANDS, AND CROSS CLAIMS, SHALL BE TRIED BEFORE A JUDGE
WITHOUT A JURY, ALL PARTIES HERETO HEREBY WAIVING THEIR RIGHT TO A JURY TRIAL.
32. LA. R.S. 6:1121. THIS AGREEMENT IS A CREDIT OR LOAN AGREEMENT
AS DESCRIBED IN LA. R. S. 6:Section 1121, E.T. SEQ.
33. CONFIDENTIAL INFORMATION. The Agent and the Banks agree to
use their best efforts not to disclose without the prior written consent of the
Borrower or the Guarantors any information with respect to the Borrower or the
Guarantors which is furnished pursuant to this Agreement, including any
information made available to the Agent or the Banks or their agents in the
course of any inspection; provided, however, this provision shall not apply (i)
to information which is generally available to the public, (ii) to information
disclosed by the Agent or any Bank in response to Fair Debt Reporting
inquiries, (iii) to information disclosed to bank examiners and the employees,
(iv) to information disclosed by the Agent or any Bank pursuant to a subpoena,
or (v) to information disclosed by the Agent or any Bank to another bank,
financial institution, pension plan, investment fund or similar Person or to
any Federal Reserve Bank (if the recipient of such information has agreed to be
bound by the confidentiality requirements of this Section 33) pursuant to or in
connection with an assignment or participation of any Note or Notes or a
portion of the Revolving Commitment pursuant to Section 29 hereof.
34. FINANCIAL TERMS. All accounting terms used in this Agreement
which are not specifically defined herein shall be construed in accordance with
GAAP.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
BORROWER:
GLOBAL INDUSTRIES, LTD.
a Louisiana corporation
By:
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
GUARANTORS:
GLOBAL PIPELINES PLUS, INC.;
GLOBAL DIVERS AND CONTRACTORS, INC.;
GLOBAL MOVIBLE OFFSHORE, INC.;
PIPELINES, INCORPORATED;
GLOBAL INDUSTRIES OFFSHORE, INC.; AND
AND GLOBAL INTERNATIONAL VESSELS, LTD.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
AGENT:
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
a national banking association
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
BANKS:
Percentage of Revolving BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
Commitment: 100% a national banking association
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
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