SECOND AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO RESTATED CREDIT AGREEMENT
(hereinafter referred to as the "Agreement") dated as of the 18th
day of November, 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"), ABN AMRO BANK N.V., HOUSTON AGENCY ("ABN"), CREDIT
LYONNAIS NEW YORK BRANCH ("CL"), THE FUJI BANK, LIMITED, HOUSTON
AGENCY ("Fuji") and HIBERNIA NATIONAL BANK ("Hibernia") (Bank
One, ABN, CL, Fuji and Hibernia are hereinafter referred to
collectively as "Banks", and individually as "Bank") and Bank
One, as Agent (in such capacity, the "Agent").
WHEREAS, Borrower, the Guarantors and the Bank One entered
into a Restated Credit Agreement dated as of April 17, 1997 (the
"Credit Agreement") under the terms of which Bank One agreed to
provide Borrower with a revolving loan facility in amounts of up
to $85,000,000.00; and
WHEREAS, Bank One subsequently assigned interest in the
Credit Agreement and the revolving commitment described therein
to ABN AMRO Bank N.V., Houston Agency, Credit Lyonnais, New York
Branch, The Fuji Bank, Limited, Houston Agency and Hibernia
National Bank; and
WHEREAS, Borrower, the Guarantors and the Bank entered into
a First Amendment to Restated Credit Agreement dated as of July
23, 1997 (the "First Amendment"); and
WHEREAS, the Agent, the Banks, the Borrower and the
Guarantors have agreed to further amend the Credit Agreement to
increase the amount of the Revolving Commitment and made certain
additional changes thereto.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained the parties agree to amend the Credit
Agreement in the following respects:
1. Section 1 of the Credit Agreement is hereby amended in
the following respects:
(a) By deleting the definition of "EBITDA" and
inserting the following new definition in lieu thereof:
"EBITDA" shall mean Borrower's
consolidated earnings before interest, taxes,
depreciation and amortization calculated as
of the end of each fiscal quarter for the
previous twelve (12) months ending on such
date."
(b) By deleting the definition of "Fixed Charge
Ratio" and inserting the following new definition in
lieu thereof:
"Fixed Charge Ratio" shall mean Net Cash
Flow plus Fixed Costs divided by current
maturities of long-term Debt plus interest
expense, Fixed Costs, and, as of any date, an
amount equal to one-fifth (1/5th) of the sum
of (i) the outstanding principal balance on
the Revolving Loan, (ii) the face amount of
all Letters of Credit issued under the
Revolving Commitment, (iii) the outstanding
principal balance due to the Banks pursuant
to the CCC Credit Agreement."
(c) By deleting the definition of "Funded Debt"
and inserting the following new definition in lieu
thereof:
""Funded Debt" shall mean indebtedness
created by the Borrower and/or 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;
(v) Capital Leases or non-cancellable
operating leases (excluding therefrom amounts
owed pursuant to the $28,000,000 Lake Xxxxxxx
Harbor and Terminal District Port Improvement
Revenue Bonds, Series 1997 (Global
Industries, Ltd. Project)); and (vi) the
Guaranties and any other financial guaranties
entered into by the Borrower and/or the
Consolidated Subsidiaries."
(d) By deleting the definition of "Shareholder's
Equity" and inserting the following new definition in
lieu thereof:
""Shareholder's Equity" shall mean (i)
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,
less (ii) the total liabilities of Borrower
and its Consolidated Subsidiaries, as
determined in accordance with GAAP."
(e) By deleting the definition of "Revolving
Commitment" and inserting the following new definition
in lieu thereof:
""Revolving Commitment" shall mean (A)
for all Banks, (i)$160,000,000 from the
Effective Date through June 30, 2000;
(ii) $120,000,000.00 from July 1, 2000
through June 30, 2001; and
(iii) $80,000,000.00 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."
(f) By deleting the definition of "Revolving
Commitment Percentage" and inserting the following new
definition in lieu thereof:
""Revolving Commitment Percentage" shall
mean for each Bank the percentage derived by
dividing its Revolving Commitment at the time
of determination by the Revolving Commitments
of all Banks at the time of determination.
At the Effective Date, the Revolving
Commitment Percentage of each Bank is as
follows:
Bank One 25%
ABN 18.75%
CL 18.75%
Fuji 18.75%
Hibernia 18.75%"
(g) By adding a new definition of "CCC Credit
Agreement" as follows:
""CCC Credit Agreement" shall mean that
certain Credit Agreement dated as of
April 17, 1997 among CCC Fabricaciones y
Construcciones S.A. de C.V., Bank One, as
Agent, and the Banks, as the same shall be
amended from time to time."
2. Subsection 2 of the Credit Agreement is hereby amended
in the following respects:
(a) Subsection 2(c) of the Credit Agreement is
hereby deleted and the following new section inserted
in lieu thereof:
"(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 $50,000,000.00 less, as of any date, the
face amount of the Credit Enhancement Letter
of Credit], 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"); (ii) a letter of credit in the
amount of $28,350,000, such letter of credit
shall have an expiry date of June 30, 2002
(the "Credit Enhancement Letter of Credit")
and (iii) letters of credit 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, Credit Enhancement Letter
of Credit and the Evergreen Letters of Credit
are hereinafter collectively referred to as
"Letters of Credit"). The expiry date of the
Credit Enhancement Letter of Credit is
subject to extension for additional periods
of one year or more ending on June 30 of such
year if, on or before 180 days prior to an
expiry date the Agent notifies Borrower in
writing that the Credit Enhancement Letter of
Credit will be extended. In the event the
Banks decide not to extend the Credit
Enhancement Letter of Credit, the Agent will
notify Borrower on or before 180 days prior
to the expiry date of the Banks' intention
not to extend such Credit Enhancement Letter
of Credit. The Credit Enhancement Letter of
Credit shall be available for issuance during
a period beginning on the date of this
Agreement and ending on a date six (6) months
thereafter. 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
(other than Letters of Credit issued in
foreign currency which are provided for
hereinbelow) issued and outstanding hereunder
shall be considered as non-interest bearing
Advances under the Revolving Commitment.
From time to time one or more of the Letters
of Credit issued hereunder may be issued in
foreign currency (i.e., non-US dollar)
denominations (i.e., non-U.S. dollar
denominations), which Letters of Credit shall
be (i) treated as non-interest bearing
Advances under the Revolving Commitment in
amounts equal to 120% of the face amount of
such Letters of Credit or the U.S. dollar
equivalent thereof as of any date, and
(ii) subject to the provisions of the Agent's
application and agreement for Letters of
Credit, including, but not limited to, the
provisions of such application and agreement
regarding letters of credit issued in foreign
currencies. 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."
(b) Subsection 2(d) is hereby deleted in its
entirety and the following inserted in lieu thereof:
"(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 (other than the Credit
Enhancement 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. Concurrently with the delivery of the
request for the Credit Enhancement Letter of
Credit, Borrower shall execute a
Reimbursement Agreement in the form of
Exhibit "A" hereto. 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 an
amount equal to $50,000,000 less, as of any
date, the face amount of the Credit
Enhancement Letter of Credit 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. 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."
(c) By the addition of a new Subsection 2(h)
thereto as follows:
"(h) Additional Reduction of
Availability Under Revolving Commitment. The
availability under the Revolving Commitment
shall be reduced as of any date by the
principal balance outstanding as of such date
on promissory notes issued pursuant to the
CCC Credit Agreement. As such indebtedness
is repaid, the availability under the
Revolving Commitment shall increase dollar
for dollar by the amount of such principal
repayments."
3. Section 3 of the Credit Agreement is hereby amended in
the following respects:
(a) Subsection 3(a) is hereby amended by deleting the
reference therein to "$85,000,000" and asserting in lieu
thereof "$160,000,000".
(b) Subsection 3(b) is hereby amended by deleting the
first sentence thereof in its entirety and substituting the
following sentence in lieu thereof:
"At the Effective Date there shall be
outstanding five notes: (i) one Revolving
Note in the aggregate face amount of
$40,000,000 payable to the order of Bank One,
(ii) one Revolving Note in the aggregate face
amount of $30,000,000 payable to ABN, (iii)
one Revolving Note in the aggregate face
amount of $30,000,000 payable to the order of
CL, (iv) one Revolving Note in the aggregate
face amount of $30,000,000 payable to the
order of Fuji, and (v) one Revolving Note in
the aggregate face amount of $30,000,000
payable to the order of Hibernia."
4. Section 6 of the Credit Agreement is hereby deleted in
its entirety and the following inserted in lieu thereof:
"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,
(B) secured by the pledge by Borrower of 100% of the
voting stock of Subtec Middle East Limited ("Subtec
Middle East"), (C) secured by a pledge by Industries
Offshore of 66% of the voting stock of Global
Industries Asia Pacific Pte., Ltd., ("Global Asia"),
(D) secured by pledge by Subtec Middle East of 66% of
the voting stock of Subtec Asia Limited ("Subtec
Asia"), and (E) 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."
5. Section 12 of the Credit Agreement is hereby amended in
the following respects:
(a) Subsection 12(c) is hereby deleted in its
entirety and the following inserted in lieu thereof:
"(c) Minimum Fixed Charge Ratio.
Borrower will not allow its Fixed Charge
Ratio to ever be less than 1.50 to 1.0, as of
the end of any fiscal quarter."
(b) Subsection 12(d) is hereby deleted in its
entirety and the following inserted in lieu thereof:
"(d) Maximum Total Debt Ratio. Borrower
will not allow its ratio of (i) total Debt
plus Capital Lease Obligation, to
(ii) Shareholder's Equity plus total Debt and
Capital Lease Obligations, as determined in
accordance with GAAP, to ever exceed 50%, as
of the end of any fiscal quarter."
(c) Subsection 12(g)(ix) thereof is hereby
deleted in its entirety and the following two
subsections inserted in lieu thereof:
"(ix) indebtedness of Borrower under
that certain Facilities Agreement dated
November 1, 1997, by and among Borrower and
Lake Xxxxxxx Harbor and Terminal District; or
"(x) renewals or extensions of any or
all of the foregoing."
(d) Subsection 12(o) thereof is hereby deleted in
its entirety and the following inserted in lieu
thereof:
"(o) Stock of Certain Subsidiaries.
Borrower shall not (i) sell, transfer or
otherwise dispose of any of the voting stock
of Global Offshore, Global Asia, Subtec
Middle East or Subtec Asia or (ii) create,
incur, assume or permit to exist any Lien, on
any of the voting stock of Global Offshore,
Global Asia, Subtec Middle East or Subtec
Asia except the Lien granted to the Banks and
Permitted Liens."
6. Section 13 of the Credit Agreement is amended in the
following respects:
(a) Subsection 13(c) is hereby deleted in its entirety
and the following inserted in lien thereof:
"(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 Xxxxxxx
00(x), (x), (x), (x), (x), (x), (x), (x),(x)
and (o) 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"
(b) Subsection 13(d) is hereby deleted in its entirety
and the following inserted in lien thereof:
"(d) Default shall be made in the due
observance or performance of the covenants
contained in Xxxxxxx 00(x), (x), (x), (x),
(x), (x), (x), (x),(x) and (o) of this
Agreement; or"
7. Exhibit C to the Credit Agreement is hereby deleted and
replaced by the new Exhibit C in the form attached hereto.
8. The obligation of the Banks hereunder shall be subject
to the following conditions precedent:
(a) Borrower's Execution and Delivery. Borrower shall
have executed and delivered to the Agent for the benefit of
the Banks, this Agreement, the new Notes and other required
documents, all in form and substance satisfactory to Agent;
(b) Guarantors' Execution and Delivery. The
Guarantors shall have executed and delivered to the Agent
for the benefit of the Banks, new Guaranties in the form of
Exhibit C hereto and other required documents, all in form
and substance satisfactory to Agent;
(c) 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;
(d) Corporate Resolutions. The Agent shall have
received appropriate certified corporate resolutions of
Borrower and each Guarantor;
(e) Good Standing. The Agent shall have received
evidence of existence and good standing for Borrower and
each Guarantor;
(f) Amendments to Articles of Incorporation and
Bylaws. The Agent shall have received copies of all
amendments to the Articles of Incorporation of Borrower and
each Guarantor made since the Effective Date of the Credit
Agreement, certified by the Secretary of State of the State
or Country of its incorporation, and a copy of any
amendments to the Bylaws of Borrower and each Guarantor,
made since the Effective Date of the Credit Agreement,
certified by Borrower and each Guarantor as being true,
correct and complete;
(g) Payment of Fees. The Agent shall have received
payment in full of all fees due on the date of execution of
this Agreement;
(h) 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);
(i) 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;
(j) 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
(k) 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.
9. Except to the extent its provisions are specifically
amended, modified or superseded by this Agreement, the
representations, warranties and affirmative and negative
covenants of the Borrower contained in the Credit Agreement are
incorporated herein by reference for all purposes as if copied
herein in full. The Borrower hereby restates and reaffirms each
and every term and provision of the Credit Agreement, as amended,
including, without limitation, all representations, warranties
and affirmative and negative covenants. Except to the extent its
provisions are specifically amended, modified or superseded by
this Agreement, the Credit Agreement, as amended, and all terms
and provisions thereof shall remain in full force and effect, and
the same in all respects are confirmed and approved by the
Borrower and the Banks.
10. Unless otherwise defined herein, all defined terms used
herein shall have the same meaning ascribed to such terms in the
Credit Agreement.
11. This Agreement may be executed in any number of
identical separate counterparts, each of which for all purposes
to be deemed an original, but all of which shall constitute,
collectively, one Agreement.
12. The Guarantors are executing this Agreement only to
indicate their consent to the execution hereof by the Borrower.
13. WRITTEN CREDIT AGREEMENT. THE CREDIT AGREEMENT, AS
AMENDED BY THE FIRST AMENDMENT AND THIS SECOND AMENDMENT,
REPRESENTS THE FINAL AGREEMENT BETWEEN AND AMONG 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 AND AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties have caused this Second
Amendment to Restated Credit Agreement to be duly executed as of
the date first above written.
BORROWER:
GLOBAL INDUSTRIES, LTD.
a Louisiana corporation
By:
Xxxxxxx X. Xxxxxxx, Vice President
GUARANTORS:
GLOBAL PIPELINES PLUS, INC.;
GLOBAL DIVERS AND CONTRACTORS, INC.;
GLOBAL MOVIBLE OFFSHORE, INC.;
PIPELINES, INCORPORATED;
GLOBAL INDUSTRIES OFFSHORE,INC.; AND
GLOBAL INTERNATIONAL VESSELS, LTD.
By:
Xxxxxxx X. Xxxxxxx, Vice President
BANKS:
BANK ONE, LOUISIANA, NATIONAL
ASSOCIATION, a national banking
association
By:
Xxxx X. Xxxxxx, Vice President
ABN AMRO BANK N.V., HOUSTON AGENCY
By:
H. Xxxx Xxxxxx
Vice President
By:
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By:
Name:
Title:
HIBERNIA NATIONAL BANK
By:
Xxxxx Xxxx
Vice President
AGENT:
BANK ONE, LOUISIANA, NATIONAL
ASSOCIATION, a national banking
association
By:
Xxxx X. Xxxxxx
Vice President
EXHIBIT "C"
CONTINUING GUARANTY
CONTINUING GUARANTY (this "Agreement") made and entered into
as of __________, 1997 by Global Pipelines Plus, Inc., Global
Divers and Contractors, Inc., Global Movible Offshore, Inc.,
Pipelines, Incorporated, Global Industries Offshore, Inc. and
Global International Vessels, Ltd. (hereinafter, whether one or
more, individually and collectively referred to as "Guarantor"),
in favor of Bank One, Louisiana, National Association of
Lafayette, Louisiana, as Agent for itself and each of the
financial institutions which are a party to that certain Restated
Credit Agreement dated as of April 17, 1997, as amended, by and
among Borrower (as hereinafter defined), the Agent and the
financial institutions party thereto (the "Credit Agreement")
(hereinafter referred to as "Lenders"), guarantying the
Indebtedness (as defined) of GLOBAL INDUSTRIES, LTD., a Louisiana
corporation (hereinafter referred to as "Borrower").
WITNESSETH:
FOR VALUE RECEIVED, and in consideration of and for credit
and financial accommodations extended, to be extended, or
continued to or for the account of the above named Borrower, the
undersigned Guarantor, whether one or more, hereby jointly,
severally and solidarity, agrees as follows:
SECTION 1. Continuing Guaranty of Borrower's
Indebtedness. Guarantor hereby absolutely and unconditionally
agrees to, and by these presents does hereby, guarantee the
prompt and punctual payment, performance and satisfaction of any
and all loans, extensions of credit and/or other obligations that
Borrower may now and/or in the future owe to and/or incur in
favor of Lenders under or pursuant to that certain Restated
Credit Agreement dated as of April 17, 1997, as amended, by and
among Borrower, Guarantors and Lenders, and as the same may be
amended and/or restated from time to time and in effect (the
"Credit Agreement"), including the indebtedness of Borrower
evidenced by certain Promissory Notes of even date herewith in
the maximum aggregate principal amount of $160,000,000.00, made
by Borrower pursuant to the Credit Agreement, as said Promissory
Notes may be renewed from time to time and in effect, and whether
such indebtedness and/or obligations are absolute or contingent,
liquidated or unliquidated, due or to become due, secured or
unsecured, and whether now existing or hereafter arising, of any
nature or kind whatsoever, up to a maximum principal amount
outstanding at any one or more times not to exceed ONE HUNDRED
SIXTY MILLION AND NO/100 DOLLARS (U.S. $160,000.000.00), together
with interest, costs and attorneys' fees thereon (with all of
Borrower's indebtedness and/or obligations being hereinafter
individually and collectively referred to under this Agreement as
"Borrower's Indebtedness" or the "Indebtedness").
Notwithstanding any other provision herein to the contrary,
the maximum principal amount of Borrower's Indebtedness in favor
of Lenders guaranteed by Guarantor under this Agreement is
limited to ONE HUNDRED SIXTY MILLION AND NO/100 DOLLARS (U.S.
$160,000,000.00) (interest, costs, and attorney's fees under
Borrower's Indebtedness are additionally guaranteed hereunder.)
SECTION 2. Limitation on Liability. The liability of
any Guarantor hereunder with respect to the Indebtedness shall be
limited to the maximum amount of liability that can be incurred
without rendering this Continuing Guaranty, as it relates to any
Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater
amount.
SECTION 3. Joint, Several and Solidarity Liability.
Guarantor further agrees that its obligations and liabilities for
the prompt and punctual payment, performance and satisfaction of
all of Borrower's Indebtedness shall be on a "joint and several"
and "solidary" basis along with Borrower to the same degree and
extent as if Guarantor had been and/or will be a co-borrower,
co-principal obligor and/or co-maker of all of Borrower's
Indebtedness. In the event that there is more than one guarantor
under this Agreement, or in the event that there are other
guarantors, endorsers or sureties of all or any portion of
Borrower's Indebtedness, Guarantor's obligations and liabilities
hereunder shall be on a "joint and several" and "solidary" basis
along with such other guarantor or guarantors, endorsers and/or
sureties.
SECTION 4. Duration; Cancellation of Agreement. This
Agreement and Guarantor's obligations and liabilities hereunder
shall remain in full force and effect until such time as each and
every Indebtedness of Borrower shall be paid, performed and/or
satisfied in full, in principal, interest, costs and attorneys'
fees, or until such time as this Agreement may be cancelled or
otherwise terminated by Lenders under a written cancellation
instrument in favor of Guarantor (subject to the automatic
reinstatement provision hereinbelow). Unless otherwise indicated
under such a written cancellation instrument, Lenders' agreement
to terminate or otherwise cancel this Agreement shall only effect
and shall be expressly limited to Guarantor's continuing
obligations and liabilities to guarantee the prompt and punctual
payment, performance and satisfaction of Borrower's Indebtedness
incurred, originated and/or extended or committed to by Lenders
after the date of such a written cancellation instrument; with
Guarantor remaining fully obligated and liable under this
Agreement for the prompt and punctual payment, performance and
satisfaction of any and all of Borrower's then outstanding
Indebtedness together with continuing assessment of interest
thereon) that was incurred, originated, extended or committed to
prior to the date of such a written cancellation instrument.
Nothing under this Agreement or under any other agreement or
understanding by and between Guarantor and Lenders, shall in any
way obligate, or be construed to obligate, Lenders to agree to
the subsequent termination or cancellation of Guarantor's
obligations and liabilities hereunder, it being fully understood
and agreed by Guarantor that Lenders may, within its sole and
uncontrolled discretion and judgment, refuse to release Guarantor
from any of its obligations and liabilities under this Agreement
for any reason whatsoever as long as any of Borrower's
Indebtedness remains unpaid and outstanding.
SECTION 5. Default of Borrower. Should Borrower default
under any of its Indebtedness in favor of Lenders as provided in
the Credit Agreement, Guarantor unconditionally and absolutely
agrees to pay the full then unpaid amount of all of Borrower's
Indebtedness guaranteed hereunder, in principal interest, costs
and reasonable attorneys' fees. Such payment or payments shall
be made immediately following demand by Lenders at Agent's
offices at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
Guarantor hereby waives notice of acceptance of this Agreement
and of any Indebtedness to which it applies or may apply.
Guarantor further waives presentation and demand for payment of
Borrower's Indebtedness, notice of dishonor and of nonpayment,
notice of intention to accelerate, notice of acceleration,
protest and notice of protest, collection or institution of any
suit or other action by Lenders in collection thereof, including
any notice of default in payment thereof or other notice to, or
demand for payment thereof on any party. Guarantor additionally
waives any and all rights and pleas of division and
discussion as provided under Louisiana State law, as well as, to
the degree applicable, any similar rights as may be provided
under the laws of any other state.
SECTION 6. Guarantor's Subordination of Rights to
Lenders. In the event that Guarantor should for any reason (i)
make any payment for and on behalf of Borrower under any of
Borrower's Indebtedness, and/or (ii) make any payments to Lenders
in total or partial satisfaction of Guarantor's obligations and
liabilities hereunder, Guarantor hereby agrees that any and all
rights that Guarantor may have or acquire to collect or to be
reimbursed by Borrower (or by any guarantor, endorser or surety
of Borrower's Indebtedness), whether Guarantor's rights of
collection or reimbursement arise by way of subrogation to the
rights of Lenders or otherwise, shall in all respects be
subordinate, inferior and junior to Lenders' rights to collect
and enforce payment, performance and satisfaction of Borrower's
then remaining Indebtedness, until such time as all of Borrower's
Indebtedness is fully paid and satisfied. Upon the occurrence
and continuance of an Event of Default (as defined in the Credit
Agreement) any and all amounts owed by Borrower to Guarantor
shall in all respects be subordinate, inferior and junior to
Lenders' rights to collect and enforce payment, performance and
satisfaction of Borrower's then remaining Indebtedness, until
such time as all of Borrower's Indebtedness is fully paid and
satisfied. Guarantor further agrees to refrain from attempting
to collect and/or enforce any of Guarantor's aforesaid rights
against Borrower (or any other guarantor, surety or endorser of
Borrower's Indebtedness), arising by way of subrogation or
otherwise, until such time as all of Borrower's then remaining
Indebtedness in favor of Lenders is fully paid and satisfied, in
principal, interest, costs and attorneys' fees.
SECTION 7. Additional Covenants. Guarantor further
agrees that Lenders may, at its sole option, at any time, and
from time to time, without the consent of or notice to Guarantor,
or any one of them, or to any other party, and without incurring
any responsibility to Guarantor or to any other party, and
without impairing or releasing the obligations of Guarantor under
this
Agreement:
A. Discharge or release any party (including,
but not limited to, Borrower or any guarantor under this
Agreement) who is or may be liable to Lenders for any of
Borrower's Indebtedness;
B. Sell, exchange, release, surrender, realize
upon or otherwise deal with, in any manner and in any order, any
collateral directly or indirectly securing repayment of any of
Borrower's Indebtedness;
C. Change the manner, place or terms of payment,
or change or extend the time of payment of or renew, as often and
for such periods as Lenders may determine, or after, any of
Borrower's Indebtedness;
X. Xxxxxx or compromise any of Borrower's
Indebtedness;
E. Subordinate and/or agree to subordinate the
payment of all or any of Borrower's Indebtedness or Lenders'
security rights in and/or to any collateral directly or
indirectly securing any such indebtedness, to the payment and/or
security rights of any other present and/or future creditors of
Borrower;
F. Apply any sums paid to any of Borrower's
Indebtedness, with such payments being applied in such priority
or with such preferences as Lenders may determine in its sole
discretion, regardless of what Indebtedness of Borrower remains
unpaid;
G. Take or accept any other security for any or
all of Borrower's Indebtedness; and/or
H. Enter into, deliver, modify, amend or waive
compliance with, any Instrument or arrangement evidencing,
securing or otherwise affecting, all or any part of Borrower's
Indebtedness.
In addition, no course of dealing between Lenders and
Borrower (or any other guarantor, surety or endorser of
Borrower's Indebtedness), nor any failure or delay on the part of
Lenders to exercise any of Lenders' rights and remedies, or any
other agreement or agreements by and between Lenders and Borrower
(or any other guarantor, surety or endorser) shall have the
affect of impairing or releasing Guarantor's obligations and
liabilities to Lenders or of waiving any of Lenders' rights and
remedies. Any partial exercise of any rights and remedies
granted to Lenders shall furthermore not constitute a waiver of
any of Lenders' other rights and remedies, it being Guarantor's
intent and agreement that Lenders' rights and remedies shall be
cumulative in nature. Guarantor further agrees that, should
Borrower default under any of its Indebtedness, any waiver or
forbearance on the part of Lenders to pursue the rights and
remedies available to Lenders shall be binding upon Lenders only
to the extent that Lenders specifically agree to such waiver or
forbearance in writing. A waiver or forbearance on the part of
Lenders as to one event of default shall not constitute a waiver
of forbearance as to any other default.
SECTION 8. No Release of Guarantor. Guarantor's
obligations and liabilities under this Agreement shall not be
released, impaired, reduced or otherwise affected by, and shall
continue in full force and effect, notwithstanding the occurrence
of any event, including without limitation any one of the
following events:
A. Death, insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or
lack of authority (whether corporate, partnership or trust) of
Borrower (or any person acting on Borrower's behalf), or any
other guarantor, surety or endorser of any of Borrower's
Indebtedness;
B. Partial payment or payments of any amount due
and/or outstanding under any of Borrower's Indebtedness;
C. Any payment of Borrower or any other party to
Lenders is held to constitute a preferential transfer or a
fraudulent conveyance under any applicable law, or for any
reason, Lenders is required to refund such payment or pay such
amount to Borrower or to any other person;
D. Any dissolution of Borrower or any sale,
lease or transfer of all or any part of Borrower's assets; and/or
E. Any failure of Lenders to notify Guarantor of
the acceptance of this Agreement or of the making of loans or
other extensions of credit in reliance on this Agreement or of
the failure of Borrower to make any payment due by Borrower to
Lenders.
F. Apply any sums paid to any of Borrower's
Indebtedness, with such payments being applied in such priority
or with such preferences as Lenders may determine in its own
discretion, regardless of what Indebtedness of Borrower remains
unpaid;
G. Take or accept any other security for any or
all of Borrower's Indebtedness; and/or
H. Enter into, deliver, modify, amend or waive
compliance with, any Instrument or arrangement evidencing,
securing or otherwise affecting, all or any part of Borrower's
Indebtedness.
This Agreement and Guarantor's obligations and
liabilities hereunder shall continue to be effective, and/or
shall automatically and retroactively be reinstated if a release
or discharge has occurred, as the case may be, if at any time any
payment or part thereof to Lenders with respect to any of
Borrower's Indebtedness is rescinded or must otherwise be
restored by Lenders pursuant to any insolvency, bankruptcy,
reorganization, receivership, or any other debt relief granted to
Borrower or to any other party. In the event that Lenders must
rescind or restore any payment received by Lenders in
satisfaction of Borrower's Indebtedness, any prior release or
discharge from the terms of this Agreement given to Guarantor
shall be without effect, and this Agreement and Guarantor's
obligations and liabilities hereunder shall automatically be
renewed or reinstated and shall remain in full force and effect
to the same degree and extent as if such a release or discharge
was never granted. It is the intention of Lenders and Guarantor
that Guarantor's obligations and liabilities hereunder shall not
be discharged except by Guarantor's full and complete performance
of such obligations and liabilities and then only to the extent
of such performance.
SECTION 9 Enforcement of Guarantor's Obligations and
Liabilities. Guarantor agrees that, should Lenders deem it
necessary to file an appropriate collection action to enforce
Guarantor's obligations and liabilities under this Agreement,
Lenders may commence such a civil action against Guarantor
without the necessity of first (i) attempting to collect
Borrower's Indebtedness from Borrower or from any other
guarantor, surety or endorser, whether through filing of suit or
otherwise, (ii) attempting to exercise against any collateral
directly or indirectly securing repayment of any of Borrower's
Indebtedness, whether through the filing of an appropriate
foreclosure action or otherwise, or (iii) including Borrower or
any other guarantor, surety or endorser of any of Borrower's
Indebtedness as an additional party defendant in such a
collection action against Guarantor. If there is more than one
guarantor under this Agreement, each guarantor additionally
agrees that Lenders may file an appropriate collection and/or
enforcement action against any one or more of them, without
impairing the rights of Lenders against any other guarantor under
this Agreement. In the event that Lenders should ever deem it
necessary to refer this Agreement to an attorney-at-law for the
purpose of enforcing Guarantor obligations and liabilities
hereunder, or of protecting or preserving Lenders' rights
hereunder, Guarantor (and each of them, on a joint, several and
solidary basis) agrees to reimburse Lenders for the reasonable
fees of such an attorney. Guarantor additionally agrees that
Lenders shall not be liable for failure to use diligence in the
collection of any of Borrower's Indebtedness or any collateral
security therefor, or in creating or preserving the liability of
any person liable on any such Indebtedness, or in creating,
perfecting or preserving any security for any such Indebtedness.
SECTION 10 Additional Documents. Upon the reasonable
request of Lenders, Guarantor will, at any time, and from time to
time, duly execute and deliver to Lenders any and all such
further instruments and documents, and supply such additional
information as may be necessary or advisable in the opinion of
Lenders, to obtain the full benefits of this Agreement.
SECTION 11 Transfer of Indebtedness. This agreement is
for the benefit of Lenders and for such other person or persons
as may from time to time become or be the holders of any of
Borrower's Indebtedness hereby guaranteed and this Agreement
shall be transferable and negotiable, with the same force and
effect and to the same extent as Borrower's Indebtedness may be
transferable, it being understood that, upon the transfer or
assignment by Lenders of any of Borrower's Indebtedness hereby
guaranteed, the legal holder of such Indebtedness shall have all
the rights granted to Lenders under this Agreement.
Guarantor hereby recognizes and agrees that Lenders may,
from time to time, one or more times, transfer all or any portion
of Borrower's Indebtedness to one or more third parties. Such
transfers may include, but are not limited to, sales of a
participation or syndication interest in such Indebtedness in
favor of one or more third parties. Guarantor specifically
agrees and consents to all such transfers and assignments and
Guarantor further waives any subsequent notice of and right to
consent to any such transfers and assignments as may be provided
under applicable Louisiana law. Guarantor additionally agrees
that the purchaser of a participation or syndication interest in
Borrower's Indebtedness will be considered as the absolute owner
of an interest in, or a percentage interest of, such Indebtedness
and that such a purchaser shall have all of the rights granted to
the purchaser under any participation agreement governing the
sale of such a participation or syndication interest. Guarantor
further waives any right of offset that Guarantor may have
against Lenders and/or any purchaser of such a participation or
syndication interest in Borrower's Indebtedness and Guarantor
unconditionally agrees that either Lenders or such a purchaser
may enforce Guarantor's obligations and liabilities under this
Agreement, irrespective of the failure or insolvency of Lenders
or any such purchaser. Guarantor further agrees that, upon any
transfer of all or any portion of Borrower's Indebtedness,
Lenders may transfer and deliver any and all collateral securing
repayment of such Indebtedness including, but not limited to, any
collateral provided by Guarantor) to the transferee of such
Indebtedness and such collateral (again, including but not
limited to Guarantor's collateral) shall secure any and all of
Borrower's Indebtedness in favor of such transferee. Guarantor
additionally agrees that, after any such transfer or assignment
has taken place, Lenders shall be fully discharged from any and
all liability and responsibility to Borrower (and Guarantor) with
respect to such collateral, and the transferee thereafter shall
be vested with all the powers and rights with respect to such
collateral.
SECTION 12 Right of Offset. As collateral security for
the repayment of Guarantor's
obligations and liabilities under this Agreement, Guarantor
hereby grants Lenders, as well as their successors and assigns,
the right to apply, upon the occurrence of an Event of Default
under the Credit Agreement and the expiration of any applicable
grace period allowed to cure the Event of Default, any and all
funds that Guarantor may then have on deposit with or in the
possession or control of any Lender and its successors or assigns
(with the exception of funds deposited in XXX, pension or other
tax-deferred deposit accounts), towards repayment of any of
Borrower's Indebtedness subject to this Agreement.
SECTION 13 Construction. The provisions of this
Agreement shall be in addition to and cumulative of, and not in
substitution, novation or discharge of, any and all prior or
contemporaneous guaranty or other agreements by Guarantor (or any
one or more of them), in favor of Lenders or assigned to Lenders
by others, all of which shall be construed as complementing each
other. Nothing herein contained shall prevent Lenders from
enforcing any and all such guaranties or agreements in accordance
with their respective terms.
SECTION 14 Amendment. No amendment, modification,
consent or waiver of any provision of this Agreement, and no
consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing signed by a duly
authorized officer of Lenders, and then shall be effective only
to the specific instance and for the specific purpose for which
given.
SECTION 15 Successors and Assigns Bound. Guarantor's
obligations and liabilities under this Agreement shall be binding
upon Guarantor's successors, heirs, legatees, devisees,
administrator executors and assigns. The rights and remedies
granted to Lenders under this Agreement shall also inure to the
benefit of Lenders' successors and assigns, as well as to any and
all subsequent holder or holders of any of Borrower's
Indebtedness subject to this Agreement.
SECTION 16 Caption Heading. Caption headings of the
section of this Agreement
are for convenience purposes only and are not to be used to
interpret or to define their provisions. In this Agreement,
whenever the context so requires, the singular includes the
plural and the plural also includes the singular.
SECTION 17 Governing Law. THIS AGREEMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE STATE OF LOUISIANA.
SECTION 18 Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under
present or future laws effective during the term hereof; such
provision shall be fully severable, this Agreement shall be
construed and enforceable as if the illegal, invalid or
unenforceable provision had never comprised a part of it, and the
remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this
Agreement, a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and legal,
valid and enforceable.
IN WITNESS WHEREOF, Guarantor has executed this Agreement in
favor of Lenders on the day, month, and year first written above.
GUARANTORS:
GLOBAL PIPELINES PLUS, INC.;
GLOBAL DIVERS AND CONTRACTORS,INC.;
GLOBAL MOVIBLE OFFSHORE, INC.;
PIPELINES, INCORPORATED;
GLOBAL INDUSTRIES OFFSHORE, INC.;and
GLOBAL INTERNATIONAL VESSELS, LTD.
By:
Xxxxxxx X. Xxxxxxx, Vice President
ACCEPTED:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION
as Agent for itself
and the Lenders
By: DATE: _________, 1997
Xxxx X. Xxxxxx, Vice President
Exhibit 10.2
FACILITIES AGREEMENT
by and between
GLOBAL INDUSTRIES, LTD.
and
LAKE XXXXXXX HARBOR AND TERMINAL DISTRICT
Dated as of November 1, 1997
TABLE OF CONTENTS
Recitals 1
THE TOC DEFINITION CODE APPEARS IMMEDIATELY AFTER THIS COMMENT.
ARTICLE I
DEFINITIONS AND REPRESENTATIONS
SECTION 1.1 Definitions and Construction 2
SECTION 1.2 Representations by the Issuer 7
SECTION 1.3 Representations by the Company 8
ARTICLE II
FINANCING OF PROJECT FACILITIES;
PAYMENT AND PREPAYMENT PROVISIONS
SECTION 2.1 Financing the Project Facilities 10
SECTION 2.2 Term; Cancellation at Expiration
of Term 10
SECTION 2.3 Facilities Payments 10
SECTION 2.4 Purchase Price Payments 11
SECTION 2.5 Optional Prepayment 12
SECTION 2.6 Obligation of Company
Unconditional 12
SECTION 2.7 Additional Financing 13
ARTICLE III
AGREEMENT TO UNDERTAKE PROJECT FACILITIES;
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
SECTION 3.1 Agreement to Undertake Project
Facilities; Completion of the Project
Facilities if Bond Proceeds
Insufficient 13
SECTION 3.2 Debt Service Fund 14
SECTION 3.4 Completion of Project Facilities 15
SECTION 3.5 Possession, Use and Occupancy 16
ARTICLE IV
PARTICULAR COVENANTS
SECTION 4.1 The Company to Maintain its Existence;
Conditions under which Exceptions
Permitted 16
SECTION 4.2 Assignment 16
SECTION 4.3 Indemnity of Governmental Units and
Issuer 17
SECTION 4.4 Reasonable and Extraordinary Fees and
Expenses of Trustee and Paying Agent;
Indemnification of Trustee 18
SECTION 4.5 Expenses of Issuer 19
SECTION 4.6 Discharge of Liens on Payments 19
SECTION 4.7 Inspection of the Books and Records 19
SECTION 4.8 Further Assurances and Corrective
Instruments 19
SECTION 4.9 Amendments to Indenture 20
SECTION 4.10 Force Majeure 20
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default 20
SECTION 5.2 Remedies on Default 21
SECTION 5.3 Remedies Cumulative 21
ARTICLE VI
TAX COVENANTS
SECTION 6.1 Covenants with Respect to Exclusion from
Gross Income of Interest on
the Bonds 22
SECTION 6.2 Payment to Special Rebate Fund; Company
Determinations 23
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Application of Moneys;
Rights of Company 24
SECTION 7.2 Benefit of and Enforcement by the
Bondholders 24
SECTION 7.3 Limitations on Liability of Issuer,
Board and Governmental Units 24
SECTION 7.4 Limitation of Liability of Officers,
Employees and Agents of
the Company 25
SECTION 7.5 Amendments to Facilities Agreement,
Consent of Trustee Required 25
SECTION 7.6 Notices 25
SECTION 7.7 Net Agreement 25
SECTION 7.8 Applicable Law 25
SECTION 7.9 Ground Lease 26
SECTION 7.10 Execution of Indenture 26
SECTION 7.11 Performance Under Indenture 26
SECTION 7.12 Severability 26
SECTION 7.13 Counterparts 26
EXECUTION 27
THIS FACILITIES AGREEMENT (the "Facilities Agreement"), made
and dated as of November 1, 1997, is by and between the Lake
Xxxxxxx Harbor and Terminal District (the "Issuer"), a deep-water
port and political subdivision of the State of Louisiana, and
Global Industries, Ltd. (the "Company"), a Louisiana corporation.
WITNESSETH THAT:
WHEREAS, the Issuer, a deep-water port and political
subdivision of the State of Louisiana, created, organized and
acting pursuant to the provisions of Part II of Chapter 1 of
Title 34, Part XII, Chapter 4, and Chapter 13 of Title 39 of the
Louisiana Revised Statutes of 1950, as amended, and Article VI,
Sections 21, 43 and 44 of the Constitution of the State of
Louisiana of 1974, as amended, and other constitutional and
statutory authority(collectively, the "Act"), is authorized to
own, administer, contract for, construct, operate, maintain,
lease and sell docks, wharves, sheds, elevators, locks, slips,
canals, laterals, basins, warehouses, and other works of public
improvement and all other property, equipment and facilities
necessary or useful for port, harbor and terminal purposes, and
all necessary property and appurtenances in connection with the
foregoing, and to issue its public port revenue bonds to finance
the cost of acquiring, constructing, equipping, installing and
operating docks and wharves and functionally related facilities;
and
WHEREAS, in furtherance of the Act, the Issuer enters into
this Facilities Agreement to induce and encourage the location by
the Company's of certain dock and wharf facilities in the Issuer,
the Parish of Calcasieu, Louisiana, which will have an economic
impact on the area and thereby the State; and
WHEREAS, the Company's facilities will consist of the
acquisition and construction on approximately 200 acres of land
owned by the Company and placing into operation of a new deep-
water port complex consisting of bulkhead slips for loading and
supply of barges, boats and offshore construction vessels, with
reinforced concrete and/or crushed stone areas adjacent to the
slips for support of cranes used for loading materials and
supplies on the vessels; buildings for the storage of material
and supplies for vessels; and a pipe base for loading reel
vessels (collectively the "Project Facilities"). The financing
of the Project Facilities and the costs of issuance of the Bonds
are hereinafter referred to as the "Project"); and
WHEREAS, the Company has agreed to locate its Project
Facilities in the Issuer and has requested the Issuer to issue
its revenue bonds to finance and pay for a portion of the
acquisition and construction of the Project, which Bonds shall be
payable solely from the payments made pursuant to this Facilities
Agreement; and
WHEREAS, the Issuer has determined to finance a portion of
the cost of the Project as requested by the Company through the
issuance of bonds to be designated "Lake Xxxxxxx Harbor and
Terminal District Port Improvement Revenue Bonds (Global
Industries, Ltd. Project), Series 1997" (the "Bonds") limited to
the aggregate principal amount of $25,000,000 pursuant to a Trust
Indenture dated as of November 1, 1997 (the "Indenture") between
the Issuer and First National Bank of Commerce, New Orleans,
Louisiana, as trustee (the Trustee"); and
WHEREAS, in furtherance of the Project, the Company will
make Facilities Payments (as defined below) to the Trustee, as
the Issuer's assignee, in an amount sufficient to pay when due
under the Indenture (whether at stated maturity, upon redemption,
upon optional or mandatory tender, by acceleration or otherwise)
the principal of, premium, if any, and interest on the Bonds; and
WHEREAS, In order to facilitate the issuance and sale of the
Bonds and to enhance the marketability of the Bonds and thereby
achieve interest cost savings, the principal of and interest on
the Bonds (to the extent other funds are not available therefor),
shall be secured by an irrevocable direct-pay letter of credit
(together with any substitute letter of credit, the "Letter of
Credit") initially issued by Bank One, Louisiana, National
Association (together with any issuer of a replacement letter of
credit, the "Bank") delivered to the Paying Agent for the account
of the Company in accordance with the provisions of the Indenture
and the Reimbursement Agreement dated as of November 1, 1997 (the
"Reimbursement Agreement") between the Bank and the Company; and
WHEREAS, the Issuer has assigned all of its rights, title
and interest in and to this Facilities Agreement (except for
certain rights relating to fees, expenses and to indemnification)
to the Trustee pursuant to the Indenture;
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants hereinafter contained, the parties hereto
hereby formally covenant, agree and bind themselves as follows,
to wit:
ARTICLE I
DEFINITIONS AND REPRESENTATIONS
SECTION 1.1 Definitions and Construction.
(a) All terms used in this Facilities Agreement which are
defined in the Indenture have the same meanings in this
Facilities Agreement which are assigned to such terms in the
Indenture, unless otherwise defined in this Facilities Agreement.
In this Facilities Agreement (except as otherwise expressly
provided or unless the context otherwise requires) the following
terms shall have the meanings specified in the foregoing
recitals:
Act Issuer
Bank Letter of Credit
Bonds Project
Facilities Agreement Project Facilities
Facilities Payments Reimbursement Agreement
Indenture Trustee
(b) The following terms shall have the meanings specified
in this Section, unless the context otherwise requires:
"Act of Bankruptcy" shall mean the commencement of a
bankruptcy or similar proceeding by or against the Company,
including, but not limited to, the following: the making of a
general assignment for the benefit of creditors, the commencing
of a voluntary case under the Federal Bankruptcy Code or the
filing of a petition thereunder, petitioning or applying to any
tribunal for the appointment of a receiver, or any trustee for
the Company or a substantial part of the assets of the Company,
commencing any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law
or statute of any jurisdiction, whether now or hereafter in
effect, or the appointment of a receiver or any trustee for the
Company or any substantial part of any of the properties of the
Company.
"Authorized Company Representative" shall mean each person
at the time designated to act on behalf of the Company by a
written certificate, containing a specimen signature of such
person, which is fully executed on behalf of the Company and is
furnished to the Trustee.
"Board" shall mean the Board of Commissioners of the Lake
Xxxxxxx Harbor and Terminal District, the governing authority of
the Issuer.
"Bond Counsel" means an attorney or firm of attorneys of
national reputation selected by the Company, experienced in the
field of municipal bonds whose opinions are generally accepted by
purchasers of municipal bonds.
"Bond Proceeds Account" shall mean the fund by that name
established in the Construction Fund held by the Trustee pursuant
to Article III of the Indenture.
"Bond Purchase Agreement" shall mean the Underwriting
Agreement, dated as of November 19, 1997, by and among the
Issuer, the Company, and Xxxxxx Xxxxxxx & Co., Incorporated.
"Bond Resolution" means, collectively, the resolution
adopted by the Board on October 9, 1997, as supplemented,
ratified and approved by resolution adopted by the Board on
November 10, 1997, and any additional resolutions of the Issuer
approving and authorizing the Bonds, the Indenture and this
Facilities Agreement.
"Claims" shall mean all claims, lawsuits, causes of action
and other legal actions and proceedings brought against any
Indemnified Party so long as the claim, lawsuit, cause of action
or other legal action or proceeding, directly or indirectly,
arises out of, results from, relates to or is based upon, in
whole or in part: (a) the issuance, offering, sale, delivery or
payment of the Bonds, or (b) the design, construction,
installation, operation, use, occupancy or maintenance of the
Project Facilities or any part thereof.
"Closing Date" shall mean the date of issuance and delivery
of the Bonds to the initial purchasers thereof in exchange for
the purchase price therefor.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, together with any further amendments or successors
thereto hereafter enacted.
"Company" shall mean (i) Global Industries, Ltd., a
Louisiana corporation, and (ii) any surviving, resulting or
transferee entity as provided in Section 4.1 hereof.
"Cost of Construction" shall mean all costs incurred by the
Issuer or the Company with respect to the acquisition,
construction and improvement of the Project Facilities,
including but not limited to, the following items:
(i) obligations incurred or assumed for labor,
materials and equipment (including obligations payable to
the Company for expenditures made or costs incurred by the
Company);
(ii) costs of any bonds and insurance deemed necessary
or appropriate by the Company;
(iii) costs of engineering services, including the
costs incurred or assumed for preliminary design and
development, surveys, estimates and plans and
specifications, and for supervising construction and
performing all other duties required in connection with the
construction, acquisition and improvement of the Project
Facilities;
(iv) costs which the Company shall be required to pay
under the terms of any contract or contracts in connection
with the construction, acquisition and improvement of the
Project Facilities;
(v) sums required to reimburse the Company for advances
made for any of the above items, and for any other costs
(including a portion of the interest costs of general
Company borrowings) incurred for work done or caused to be
done by the Company which are properly chargeable to the
Project Facilities;
(vi) interest on the Bonds, and any other bonds issued
by the Issuer to finance the acquisition, construction and
improvement of the Project Facilities, actually paid during
or attributable to the period of construction of the
Project Facilities and for a period of one year after
completion of construction (which the Issuer has found to be
a reasonable period);
(vii) to the extent authorized by the Act, costs of all
other items related to the acquisition, construction and
improvement of the Project Facilities; and
(viii) all Costs of Issuance and other financing costs
and fees to be paid during the period of construction.
"Costs of Issuance" shall mean all costs and expenses
incurred by the Issuer or the Company in connection with the
issuance and sale of the Bonds, including without limitation
(i) fees and expenses of accountants, attorneys, engineers,
underwriters (whether paid as a fee or a discount) and
financial advisors, (ii) materials, supplies and printing
and engraving costs, (iii) recording and filing fees, (iv)
rating agency fees, (v) initial fees and expenses of any
Trustee and Paying Agent, and (vi) the Issuer's
administrative and overhead expenses as provided for in the
Facilities Agreement.
"Disbursement Request" shall mean a certificate in
substantially the form of Exhibit A signed by an Authorized
Company Representative.
"Event of Default" shall have the meaning given to such term
in Section 5.1 hereof.
"Facilities Agreement" shall mean this Facilities Agreement.
"Facilities Payments" shall mean the payments to be made by
the Company pursuant to Section 2.3 hereof.
"Force Majeure" shall mean acts of God, strikes, lockouts or
other industrial disturbances, acts of the public enemy, orders
of any kind of the government of the United States of America, or
of any state thereof, or any civil or military authority,
insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, tornadoes, storms, floods,
washouts, droughts, arrests, restraining of government and
people, civil disturbances, explosions, nuclear accidents, wars,
breakage or accidents to machinery, transmission pipes or canals,
partial or entire failure of utilities, shortages of labor,
material, supplies or transportation, or any other cause not
reasonably within the control of the party claiming inability to
perform due to such cause.
"Ground Lease" shall mean that certain Ground Lease,
pursuant to which the Project Facilities are leased to or used by
the Company and the Leased Land is leased by the Company to the
Issuer and subleased by the Issuer to the Company.
"Indemnified Party," individually, and "Indemnified
Parties," collectively, shall mean the Issuer, the Board, and the
members, officers, employees and agents of each of such Persons
(other than Bond Counsel).
"Indenture" shall mean the Trust Indenture, dated as of even
date herewith, by and between the Issuer and the Trustee.
"Issuer" shall mean the Lake Xxxxxxx Harbor and Terminal
District.
"Leased Land" means the land to be leased by the Issuer from
the Company and subleased by the Company from the Issuer under
the Ground Lease, on which will be situated the Project
Facilities.
"Loss" or "Losses" shall mean losses, costs, damages,
expenses and liabilities of whatever nature (including reasonable
attorneys' fees, litigation and court costs and expenses, amounts
paid in settlement, amounts paid to discharge judgments) directly
or indirectly resulting from, arising out of or relating to one
or more Claims.
"Paying Agent" shall mean First National Bank of Commerce,
New Orleans, Louisiana, as Paying Agent under the Indenture, or
any successor or successors designated as such from time to time
pursuant to the Indenture.
"Person" shall mean any association, individual,
corporation, governmental entity, partnership, joint venture,
business association, estate or any other organization or entity.
"Project Facilities" means the construction, acquisition and
placing into operation of a new deep-water port complex for the
benefit of the Company within the boundaries of the Issuer,
consisting of bulkhead slips for loading and supply of barges,
boats and offshore construction vessels, with reinforced concrete
and/or crushed stone areas adjacent to the slips for support of
cranes used for loading materials and supplies on the vessels;
buildings for the storage of material and supplies for vessels;
and a pipe base for loading reel vessels, which facilities are to
be financed with the proceeds of the Bonds.
"Purchase Price" shall mean, with respect to any Bond, 100%
of the principal amount thereof and accrued interest to the date
established for purchase thereof by the terms thereof and the
Indenture.
"Regulations" shall mean the Income Tax Regulations
promulgated pursuant to the Code or, if applicable, the Internal
Revenue Code of 1954, as amended.
"State" shall mean the State of Louisiana.
"Tendered Bond" shall mean any Bond tendered or deemed
tendered for purchase pursuant to the following Sections of the
Indenture: Sections 3.01(c)(iii), 3.01(d)(iii), 301(d)(iv),
3.01(e)(iii), 3.01(e)(iv) or 3.01(f)(iii).
"Trustee" shall mean First National Bank of Commerce, in the
City of New Orleans, Louisiana, or any successor trustee or co-
trustee hereafter appointed in the manner provided in the
Indenture.
In this Facilities Agreement, unless the context otherwise
requires:
(1) The terms "hereby," "hereof," "hereto," "herein,"
"hereunder," and any similar terms, as used in this
Facilities Agreement, refer to this Facilities Agreement,
and the term "hereafter" shall mean after, and the term
"heretofore" shall mean before the date of this Facilities
Agreement.
(2) Words of the masculine gender shall mean and
include correlative words of the feminine and neuter genders
and words importing the singular number shall mean and
include the plural number and vice versa.
(3) Any headings preceding the texts of the several
Articles and Sections of this Facilities Agreement, and any
table of contents appended hereto, shall be solely for
convenience of reference and shall not constitute a part of
this Facilities Agreement, nor shall they affect its
meaning, construction or effect.
(4) All references herein to particular Articles or
Sections are references to the Articles or Sections of this
Facilities Agreement, and reference herein to any exhibit
means an exhibit attached to this Facilities Agreement.
(5) Reference to any document means that document as
amended or supplemented from time to time in accordance with
its terms and, where applicable, the Indenture, and
reference to any party to a document means that party and
its permitted successors and assigns.
SECTION 1.2 Representations by the Issuer. The Issuer
represents and warrants that:
(a) The Issuer is a deep-water port and political
subdivision of the State, created and organized pursuant to the
provisions of the Act.
(b) The Issuer has full corporate power and authority under
the Constitution and laws of the State to adopt the Bond
Resolution, to issue the Bonds, to execute and deliver this
Facilities Agreement, the Ground Lease, and the Indenture and to
perform its obligations hereunder and thereunder.
(c) The Issuer has duly adopted the Bond Resolution and has
duly authorized the execution and delivery of this Facilities
Agreement, the Ground Lease, and the Indenture. All action
required on the part of the Issuer for the authorization of the
issuance of the Bonds and the execution and delivery of this
Facilities Agreement, the Ground Lease, and the Indenture has
been duly and effectively taken.
(d) This Facilities Agreement, the Ground Lease, and the
Indenture constitute valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms
(except that (i) the enforceability of such documents may be
limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws of general application relating to the
enforcement of creditors' rights and (ii) certain equitable
remedies, including specific performance may be unavailable).
(e) All filings with, or approvals or consents of
governmental authorities (other than approvals or consents
required under the Blue Sky or other securities laws of any
jurisdiction) required to be made or obtained by the Issuer for
(i) the valid adoption of the Bond Resolution, (ii) the valid
authorization, execution and delivery by the Issuer of this
Facilities Agreement, the Ground Lease, and the Indenture and
(iii) the valid issuance of the Bonds have been, or prior to the
issuance of the Bonds will be, duly made or obtained.
(f) There is no action, suit, proceeding or investigation
at law or in equity before or by any court, either State or
federal, or public body pending or, to the Issuer's knowledge,
threatened, calling into question the creation or existence of
the Issuer, the validity of this Facilities Agreement, the Ground
Lease, the Indenture or the Bonds, the authority of the Issuer to
issue the Bonds or to execute and deliver this Facilities
Agreement, the Ground Lease, and the Indenture and to perform its
obligations hereunder or thereunder, or the title of any person
to the office held by that person with the Issuer.
(g) The execution and delivery by the Issuer of this
Facilities Agreement, the Ground Lease, and the Indenture, and
the performance of its obligations hereunder or thereunder, will
not violate any provision of the Act or, to the Issuer's
knowledge, violate any provision of law or regulation, or of any
judgment, decree, writ, order or injunction, and will not (i)
contravene the provisions of, (ii) constitute a default under, or
(iii) result in the creation of a lien, charge or encumbrance
under any agreement (other than the Indenture and the Ground
Lease as to clause (iii) alone) to which the Issuer is a party or
by which any of its properties constituting a part of the
properties pledged pursuant to the Indenture is bound.
(h) No event has occurred, and to the Issuer's knowledge,
no condition currently exists, which constitutes or may, with the
passage of time or the giving of notice, or both, constitute a
default with respect to or on the part of the Issuer hereunder.
(i) The Issuer has not assigned or pledged and will not
assign or pledge its right, title, or interest in and to this
Facilities Agreement other than to secure the Bonds as provided
in the Indenture.
SECTION 1.3 Representations by the Company. The Company
represents and warrants that:
(a) The Company is a corporation duly organized and
existing under the laws of Louisiana, is qualified to do business
and is in good standing in the State, has the corporate power and
authority to enter into this Facilities Agreement and the Ground
Lease, has duly authorized the execution and delivery of this
Facilities Agreement by proper corporate action, and has the
corporate power to carry on the business for which the Project
Facilities are to be acquired, constructed, equipped, and leased
or used.
(b) There is no action, suit, proceeding or investigation
at law or in equity before or by any court, either state or
federal, or public board or body pending or, to the Company's
knowledge, threatened against the Company, calling into question
(i) the valid incorporation and existence of the Company, (ii)
the validity of this Facilities Agreement or the Ground Lease,
(iii) the authority of the Company to execute and deliver this
Facilities Agreement or the Ground Lease, or (iv) the authority
of the Company to perform in any material respect its obligations
hereunder.
(c) The execution and delivery by the Company of this
Facilities Agreement and the Ground Lease and the performance of
its obligations hereunder and thereunder will not violate the
Certificate of Incorporation or Bylaws of the Company or, to the
Company's knowledge, in any material respect any provision of law
or regulation, or any judgment, decree, writ, order or
injunction, and will not contravene, to the Company's knowledge,
in any material respect the provisions of or constitute a default
under any material agreement to which the Company is a party or
by which any of its properties are bound.
(d) To the Company's knowledge, no event has occurred, and
no condition currently exists, which constitutes or may, with the
passage of time or the giving of notice, or both, constitute an
Event of Default with respect to or on the part of the Company
hereunder.
(e) The Company represents that it will operate or use the
Project Facilities in accordance with all applicable laws,
including, without limitation, the Code, and any agreements
entered into by the Company and the Board with respect to the
Project Facilities; provided, however, that the Company shall not
be required to comply or cause compliance with applications of
applicable laws so long as the Company shall, at the Company's
expense, contest the same or the validity thereof in good faith,
by appropriate proceedings. Such contest may be made by the
Company in the name of the Issuer (if first approved by Issuer)
or the Company, or both, as the Company shall determine (provided
that no such contest shall be made against the Issuer without the
consent of the Issuer), and the Issuer agrees that it will, at
the Company's expense, cooperate with the Company in any such
contest it approves to such extent as the Company may reasonably
request. It is understood, however, that the Issuer shall not be
subject to any liability for the payment of any costs or expenses
in connection with any such proceedings brought by the Company,
and the Company covenants to pay, and to indemnify and save the
Issuer from, any such costs or expenses. The foregoing 2
sentences shall not apply to an application of law by the Issuer
in the administration of its powers and jurisdiction.
(f) The statements, information, descriptions, estimates
and assumptions contained in the Tax Certificate of the Company,
dated as of the Closing Date, are based upon the best information
available to the Company and are true, correct and complete in
all material respects.
ARTICLE II
FINANCING OF PROJECT FACILITIES;
PAYMENT AND PREPAYMENT PROVISIONS
SECTION 2.1 Financing the Project Facilities. The Issuer
agrees that contemporaneously with the delivery of this
Facilities Agreement it will execute and deliver the Indenture
and issue, sell and deliver the Bonds to the initial purchasers
thereof to provide a portion of the funds to finance the Project
established by Section 4.02 of the Indenture. The Bonds shall be
limited obligations of the Issuer and shall be payable by the
Issuer solely out of the Facilities Payments derived from or in
connection with this Facilities Agreement and the moneys held
from time to time under the Indenture other than the special
Rebate Fund established by Section 4.02 of the Indenture. The
Bonds shall never be payable out of any other funds of the Issuer
except such revenues.
In consideration of the issuance of the Bonds by the Issuer
to provide a portion of the funds to finance the Project
Facilities, the Company agrees to pay to the Trustee the
Facilities Payments, and to the Paying Agent of the Purchase
Price. The Facilities Payments shall be made for the benefit of
the holders of the Bonds into the Debt Service Fund and the
Purchase Price payments shall be made to the Paying Agent for the
benefit of the Bondholders of Tendered Bonds, all as provided in
the Bond Resolution and the Indenture.
SECTION 2.2 Term; Cancellation at Expiration of Term.
The term of this Facilities Agreement shall commence, and this
Facilities Agreement shall become effective, on the Closing Date,
and shall expire on such date as the Bonds are paid in full or
provision therefor is made in accordance with Section 2.04 of the
Indenture; provided, however, that Sections 4.3, 4.4 and 6.2 of
this Facilities Agreement shall survive the expiration of the
term of this Facilities Agreement.
Upon the expiration of the term of this Facilities
Agreement, the Issuer shall deliver to the Company any documents
and take or cause the Trustee to take such actions as may be
requested of it to effectuate the cancellation and evidence the
termination of this Facilities Agreement. Termination of this
Facilities Agreement shall not affect the respective rights and
obligations of the Issuer and the Company under the Ground Lease.
SECTION 2.3 Facilities Payments. The Company shall, and
hereby agrees to, make payments under this Facilities Agreement
directly to the Trustee, as assignee of the Issuer's interest in
the Facilities Payments under the Indenture, for deposit in the
Debt Service Fund, in immediately available funds on or before
11:00 a.m., Lafayette, Louisiana time, on each day on which any
payment of principal of, premium, if any, and interest on the
Bonds shall become due (whether at maturity or upon optional or
mandatory redemption or acceleration or otherwise) in an amount
which shall be equal to the principal of, premium, if any, and
interest on the Bonds due on such day (whether at maturity or
upon redemption or acceleration or otherwise); provided, that
such payments shall be reduced by the following amounts:
(a) The amount of accrued interest, if any, received upon
the issuance of the Bonds and deposited in the Debt Service Fund
and available for such purpose pursuant to the Indenture shall be
credited against the next payment or payments;
(b) The amount of net income or gain received and collected
from the investment of moneys in the Debt Service Fund and
available for such purpose pursuant to the Indenture shall be
credited against the next payment or payments unless the Company
shall otherwise direct in writing;
(c) The amount of any excess moneys on deposit in the Debt
Service Fund and available for such purpose pursuant to the
Indenture shall be credited against the next payment or payments
unless otherwise directed by the Company; and
(d) The amount of any surplus funds in the Construction
Fund that are transferred to the Debt Service Fund pursuant to
the provisions of Section 3.02(f) of the Indenture.
The Company further agrees that in the event of the
acceleration of the maturity of the Bonds upon the occurrence of
an Event of Default under the Indenture, the payment obligations
of the Company hereinabove specified shall in like manner be
accelerated and the Company agrees to pay to the Trustee the
Facilities Payments due on the date of such acceleration;
provided, however, that upon the annulment of the acceleration of
the maturity of the Bonds as provided in the Indenture, the
acceleration of the payment obligations of the Company hereunder
shall also be annulled.
Each payment by the Company pursuant to this Section,
together with any amounts held in the Debt Service Fund and
available for such purpose, shall in all events be sufficient to
pay principal of, premium, if any, and interest on the Bonds
(whether at maturity or by acceleration or redemption or
otherwise as provided in the Indenture) on the date such payment
in connection with the Bonds is due.
In the event a payment date hereunder falls on a day which
is not a Business Day, the payment involved shall be due and
payable on the following Business Day, and no additional amounts
shall be due as a result.
SECTION 2.4 Purchase Price Payments. The Company
covenants to timely provide, or make provision for the timely
payment of, the Purchase Price of Tendered Bonds to the Paying
Agent when, in the manner and to the extent required by the terms
of the Indenture.
SECTION 2.5 Optional Prepayment. The Company shall have,
and is hereby granted the option, to prepay the amounts payable
under Section 2.3 hereof (a) to provide for the defeasance of the
Bonds pursuant to Section 2.04 of the Indenture and (b) to
provide for the redemption of the Bonds when and as permitted
pursuant to the provisions of Article III of the Indenture.
In the event the Company elects to cause a redemption of the
Bonds in whole or in part pursuant to Article II(C)(1) or (2) of
the Indenture, the Company shall give written notice thereof to
the Issuer and the Trustee at least 40 days prior to the date
selected for such redemption by the Company, which notice shall
specify the redemption date and amount of Bonds to be so
redeemed, all in accordance with the Indenture, and in the case
of an optional redemption pursuant to Article II(C)(2) of the
Indenture, shall specify that, in the determination of the
Company, one or more of the events permitting such redemption has
occurred and the amount of Bonds to be redeemed as a result
thereof, which determinations by the Company shall be conclusive.
If less than all of the Bonds are to be called for redemption,
such notice shall also identify the particular Bonds or portions
thereof to be redeemed, or shall direct the Trustee to select the
Bonds to be redeemed by lot, all in accordance with the
Indenture. With respect to any optional redemption, the notice
and election to cause the redemption of the Bonds shall be deemed
rescinded, and the Bonds shall not be subject to such optional
redemption, in the event that the Company shall not deposit with
the Trustee, on or before 11:00 A.M., LaFayette, Louisiana time
on the date fixed for such redemption, an amount which, when
added to any moneys then on deposit in the Debt Service Fund and
available for such purpose, is equal to the principal of,
premium, if any, and interest on such Bonds on the dated fixed
for the redemption thereof.
The Issuer agrees that, at the request of the Company, it
will cooperate with the Company to cause the Bonds or any portion
thereof to be redeemed to the extent permitted by the Indenture.
SECTION 2.6 Obligation of Company Unconditional. The
obligation of the Company to make the Facilities Payments to the
Trustee and the Purchase Price payments to the Paying Agent as
provided in this Article shall be absolute and unconditional,
irrespective of any defense or right of set off, recoupment or
counterclaim it might otherwise have against the Issuer, the
Trustee or the Paying Agent.
The Company will not suspend or discontinue any Facilities
Payments or Purchase Price payments for any cause including,
without limiting the generality of the foregoing, any facts or
circumstances that may constitute an eviction or constructive
eviction, failure of consideration, failure of title, or
commercial frustration of purpose, or any damage to or
destruction of the Project Facilities, or the termination (by
expiration of term or otherwise) or cancellation of the Ground
Lease, or a default under the Ground Lease, or a wrongful
dispossession of the Company under the Ground Lease or the taking
by eminent domain of title to or the right of temporary use of
all or any part of the Project Facilities, or the application of
or any change in the tax or other laws of the United States, the
State or any political subdivision of either thereof, or any
failure of the Issuer or other party to perform and observe any
agreement or covenant, whether express or implied, or any duty,
liability or obligation arising out of or connected with this
Facilities Agreement or the Ground Lease.
The Company further absolutely and unconditionally agrees
and covenants to pay all reasonable expenses and charges (in
cluding court costs and attorneys' fees), paid or incurred by the
Issuer, the Paying Agent or the Trustee in realizing upon any of
the Facilities Payments or Purchase Price payments to be made by
the Company or in enforcing the provisions of this Facilities
Agreement or the Indenture.
Nothing in this Facilities Agreement shall be construed to
release the Issuer from the performance of any of its agreements
contained in this Facilities Agreement or, except to the extent
provided in this Section, prevent or restrict the Company from
(i) asserting any rights which it may have against the Issuer,
the Trustee or any other Person under this Facilities Agreement,
(ii) asserting its rights under any provision of law, (iii) at
its own cost and expense, prosecuting or defending any action or
proceeding against or by third parties or taking any other action
to secure or protect its rights under this Facilities Agreement,
(iv) asserting its rights under the Ground Lease, or (v) at its
own cost and expense, prosecuting or defending any action or
proceeding against or by third parties or taking any other action
to secure or protect its rights under the Ground Lease or with
respect to the Project Facilities.
SECTION 2.7 Additional Financing. Nothing herein shall
be construed as limiting the right of the Issuer and the Company
to enter into, to the extent permitted by law, a mutually
acceptable agreement or agreements other than this Facilities
Agreement with respect to the issuance by the Issuer, under an
indenture or indentures other than the Indenture, of obligations
to provide additional funds to pay the costs of capital
improvements intended to maintain or increase the overall
capacity or scope of the Project Facilities, to provide funds to
pay costs of improvements to the Project Facilities or other
projects permitted by the Act or to refund all or any part of the
Bonds or any other obligations, or any combination thereof.
ARTICLE III
AGREEMENT TO UNDERTAKE PROJECT FACILITIES;
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
SECTION 3.1 Agreement to Undertake Project Facilities;
Completion of the Project Facilities if Bond Proceeds
Insufficient. The Company covenants and agrees to cause the
Project Facilities to be acquired, designed, constructed and
installed and to place in service the Project Facilities in
furtherance of the public purposes of the Act, all as shall be
determined by the Company, subject to the terms and provisions of
this Facilities Agreement and the Ground Lease. The description
of the Project Facilities contained in Exhibit A may be
supplemented or amended by the Company, provided that (1) all
property comprising the amended description of the Project
Facilities shall be leased to or used by the Company pursuant to
the Ground Lease, (2) no such supplement or amendment shall (a)
relieve the Company from making the payments required pursuant to
Article II hereof, (b) cause the Project Facilities no longer to
qualify as dock or wharf facilities under the Act or the Code or
(c) result in a violation of Article VI hereof and (3) in the
case of a new project added to Exhibit A, such addition shall be
approved by the Board.
The Company agrees to use the proceeds of the Bonds solely
to pay Costs of Construction. The Company reserves the right to
allocate such proceeds among the Project Facilities so long as
such allocation does not cause funds derived from all sources,
including such proceeds, to be inadequate to complete the payment
of the Costs of Construction. The Company agrees to pay all
Costs of Construction which are not, or cannot be, paid or
reimbursed from the proceeds of the Bonds, and in such event, the
Company shall not be entitled to any reimbursement therefor from
the Issuer or from any Bondholders, nor shall it be entitled, as
a consequence of such unreimbursed payment, to any abatement,
postponement or diminution of the amounts payable under this
Facilities Agreement; provided, however, that the foregoing shall
not be construed as limiting the rights of the Company to
supplement or amend the description of the Project Facilities
contained in Exhibit A as provided above nor to limit the ability
of the Company to obtain additional financing from any source or
sources to complete the Project Facilities. In the event that
the Company should use any of its own funds to pay Costs of
Construction pursuant to the preceding sentence, such payment
shall be treated by the parties hereto as a payment of additional
amounts for the use of the Project Facilities.
The parties hereto acknowledge that the Issuer's only source
of funds with which to carry out its obligations hereunder will
be from the proceeds of the sale of the Bonds, and it is
expressly agreed that the Issuer shall have no liability,
obligation or responsibility hereunder to the Company with
respect to the financing of the Project Facilities except to the
extent of funds available from such proceeds.
THE ISSUER MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
WHATSOEVER WITH RESPECT TO THE PROJECT FACILITIES, INCLUDING, BUT
NOT LIMITED TO: THE MERCHANTABILITY THEREOF OR THE FITNESS
THEREOF FOR ANY PARTICULAR PURPOSES; THE DESIGN OR CONDITION
THEREOF; THE WORKMANSHIP, QUALITY OR CAPACITY THEREOF; COMPLIANCE
THEREOF WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR
CONTRACT PERTAINING THERETO; PATENT INFRINGEMENT; OR LATENT
DEFECTS.
SECTION 3.2 Debt Service Fund. Pursuant to the
Indenture, there shall be deposited in the Debt Service Fund a
sum, if any, equal to interest accrued on the Bonds from the
dated date thereof to the Closing Date. Sums on deposit in the
Debt Service Fund shall be applied and invested at the direction
of the Company as set forth in the Indenture.
SECTION 3.3 Construction Fund.
(a) The proceeds of the Bonds shall be deposited into the
Debt Service Fund and the Construction Fund as Provided in
Article IV of the Indenture. Sums on deposit in the Construction
Fund shall be invested at the direction of the Company as set
forth in the Indenture. The Trustee shall disburse or apply the
money in the Construction Fund in accordance with this Section
and Article IV of the Indenture.
(b) The Trustee shall disburse (or transfer to the Debt
Service Fund) amounts in the Construction Fund to pay Costs of
Construction upon receipt of a disbursement request, in the form
attached to the Indenture as Exhibit A thereto, a copy of which
shall be delivered to the Issuer.
In making any such payment from the Construction Fund, the
Trustee and the Issuer may rely on such disbursement requests and
proof delivered to it, and the Trustee and the Issuer shall be
relieved of all liability with respect to making such payments in
accordance with the foregoing.
On the Closing Date, the Company shall prepare and submit to
the Trustee a disbursement request which shall provide for the
payment of all Costs of Issuance.
(c) Upon the filing of the completion certificate pursuant
to Section 3.4 hereof, the balance in the Construction Fund in
excess of the amount, if any, stated in such certificate to be
retained therein, shall be held and applied as directed by an
Authorized Company Representative in accordance with Section
3.02(f) of the Indenture.
(d) In the event the Company shall be required or shall
elect to prepay all of the Facilities Payments hereunder, the
Company may direct the Trustee to transfer the balance in the
Construction Fund to the Debt Service Fund without the necessity
of complying with subsection (b) of this Section.
(e) In case of acceleration of maturity of the Bonds
pursuant to the Indenture, the Trustee shall transfer the balance
in the Construction Fund to the Debt Service Fund without the
necessity of complying with subsection (b) of this Section.
SECTION 3.4 Completion of Project Facilities. The
completion of the acquisition, construction and equipping of the
Project Facilities and payment of all costs and expenses incident
thereto shall be evidenced by the filing with the Trustee of the
completion certificate signed by an Authorized Company
Representative acknowledging the facts set forth therein and
stating (1) the date of such completion, (2) that all labor,
services, materials and supplies used in such construction and
equipping for which payment is due have been paid for, (3) that
at least 95% of all amounts disbursed from the Construction Fund,
after talking into account amounts theretofore paid or reimbursed
from the Construction Fund and amounts, if any, to be paid or
reimbursed from the Construction Fund after the date of such
certificate, to pay Costs of Construction (including costs of
issuance and underwriters' discount) have been or will be used to
provide dock and wharf facilities or other exempt facilities
within the meaning of the Code and the Regulations in effect
thereunder and applicable to the Bonds, and (4) the amount, if
any, required in his opinion for the payment of any remaining
part of the Costs of Construction. A copy of such completion
certificate shall be delivered to the Issuer.
SECTION 3.5 Possession, Use and Occupancy. The parties
hereto acknowledge that possession, use and occupancy of the
Project Facilities is governed by the terms and provisions of the
Ground Lease, and that nothing contained in this Facilities
Agreement is intended or shall be construed to preclude or limit
in any way the exercise by either the Issuer or the Company of
their respective rights or remedies under the Ground Lease, nor
to give to the Company or the Issuer any separate right hereunder
to use or occupy the Project Facilities or any part thereof.
ARTICLE IV
PARTICULAR COVENANTS
SECTION 4.1 The Company to Maintain its Existence;
Conditions under which Exceptions Permitted. Except as
hereinafter provided the Company agrees that during the term
hereof it will not dissolve or otherwise dispose of all or
substantially all of its assets and will not consolidate with or
merge into another entity unless the surviving entity or
transferee, as applicable, is a solvent corporation or other
entity and, concurrently with such transaction, irrevocably and
unconditionally assumes in writing, by means of an instrument
which is delivered to the Issuer and the Trustee, all of the
obligations of the Company herein.
SECTION 4.2 Assignment. The Company may transfer or
assign this Facilities Agreement or transfer or assign any or all
of its rights and delegate any or all of its duties hereunder,
but no such transfer, assignment or delegation shall relieve the
Company or any successor thereto of its liability for the payment
of the amounts to be paid by it under this Facilities Agreement
and for the full observance and performance of all of the
covenants and conditions to be observed and performed by it which
are contained in this Facilities Agreement, except in connection
with a dissolution, disposition, consolidation or merger
permitted under Section 4.1 hereof.
The Issuer shall, in accordance with the Indenture, assign
this Facilities Agreement and the moneys receivable hereunder
(other than certain rights to fees, expenses and indemnification)
to the Trustee as security for payment of the principal of,
premium, if any, and interest on the Bonds. The Company hereby
assents to such assignment and agrees that the Trustee may
exercise and enforce in accordance with the Indenture any of such
rights of the Issuer under this Facilities Agreement assigned
pursuant to the Indenture. Any such assignment, however, shall
be subject to all of the rights and privileges of the Company as
provided in this Facilities Agreement.
SECTION 4.3 Indemnity of Governmental Units and Issuer.
(a) Agreement to Indemnify. The Company releases the
Indemnified Parties from and agrees to indemnify and hold the
Indemnified Parties harmless against any Loss unless the Loss
arises from the fraud, theft, bad faith or willful misconduct of
the Person to be indemnified.
(b) Reimbursement. Each Indemnified Party, as appropriate,
shall reimburse the Company for payments made by the Company
pursuant to this Section to the extent of any proceeds, net of
all expenses of collection, actually received by them from any
insurance proceeds with respect to any Loss. At the request and
expense of the Company, each Indemnified Party shall have the
duty to claim any such insurance proceeds and such Indemnified
Party shall assign its rights to such proceeds, to the extent of
such required reimbursement, to the Company.
(c) Notice. In case any Claim shall be brought or, to the
knowledge of any Indemnified Party, threatened against any
Indemnified Party in respect of which indemnity may be sought
against the Company, failure of the Indemnified Party (other than
the Issuer with respect to which there shall be no reduction in
the liability of the Company) to promptly notify the Company in
writing will reduce the liability of the Company under this
Facilities Agreement by the amount of the damages attributable to
the failure to give the notice; but the failure will not relieve
the Company from any liability it may have to such Indemnified
Party otherwise than under the provisions of this Section 4.3.
(d) Defense. The Company shall have the right to assume
the investigation and defense of all Claims, including the
employment of counsel and the payment of all expenses. Each
Indemnified Party shall have the right to employ separate counsel
in any such action and participate in the investigation and
defense thereof, but the fees and expenses of such counsel shall
be paid by such Indemnified Party unless (i) the employment of
such counsel has been specifically authorized by the Company, in
writing, or (ii) the Company has failed to assume the defense and
to employ counsel, or (iii) the named parties to any such action
include both an Indemnified Party and the Company, and the
Indemnified Party shall have received a written legal opinion of
counsel to the effect that in such counsel's opinion, one or more
of the legal defenses available to such Indemnified Party are in
conflict with those available to the Company (in which case, if
such Indemnified Party notifies the Company in writing that it
elects to employ separate counsel at the Company's expense, the
Company shall not have the right to assume the defense of the
action on behalf of such Indemnified Party; provided however,
that the Company shall not, in connection with any one action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegation or
circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for the Indemnified
Parties, which firm shall be designated in writing by the
Indemnified Parties); provided further, however, that nothing
herein shall be construed as prohibiting the Issuer from
utilizing its own in-house counsel.
(e) Cooperation with Company. Each Indemnified Party, as a
condition of such indemnity, shall use reasonable efforts to
cooperate with the Company in the defense of any Claim. The
Company shall not be liable for any settlement of any such action
without its consent, but, if any such action is settled with the
consent of the Company, the Company shall indemnify and hold
harmless the Indemnified Parties against any Loss by reason of
such settlement as provided in this Section.
SECTION 4.4 Reasonable and Extraordinary Fees and
Expenses of Trustee and Paying Agent; Indemnification of Trustee.
(a) Fees and Expenses. The Company shall pay, from time to
time, upon the Trustee's written request, the reasonable
compensation for its services rendered under the Indenture and
reimburse the Trustee for its reasonable ordinary and
extraordinary out-of-pocket expenses (including reasonable
counsel fees and expenses) reasonably incurred in connection
therewith, except as a result of the Trustee's gross negligence
or willful misconduct.
Notwithstanding the foregoing, the Company may, without
creating a default hereunder or under the Indenture, prior to
paying any such compensation or out-of-pocket expenses, contest
in good faith the necessity for or reasonableness thereof.
(b) Indemnity. The Company agrees to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or
expense incurred without gross negligence or willful misconduct
on its part, arising out of or in connection with the acceptance
or administration of the trust imposed by the Indenture,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties under the Indenture or the
Reimbursement Agreement; provided, however, that:
(1) the Trustee shall reimburse the Company for
payments made by the Company pursuant to such indemnity, to
the extent of any proceeds, net of all expenses of
collection, actually received by it from any insurance
proceeds with respect to any such indemnified loss,
liability or expense, and the Trustee shall assign rights to
such proceeds, to the extent of such required reimbursement,
to the Company;
(2) as a condition to such indemnity, the Trustee
shall promptly notify the Company in writing of any claim
brought or, to the knowledge of the Trustee, threatened in
writing against the Trustee in respect of which indemnity
may be sought against the Company;
(3) the Company shall have the right to assume the
investigation and defense of all claims against the Trustee
in respect of which indemnity may be sought against the
Company, including the employment of counsel and the payment
of all expenses, provided that the Trustee shall have the
right to employ separate counsel in any such action and
participate in the investigation and defense thereof, but
the fees and expenses of such counsel shall be paid by the
Trustee unless (a) the employment of such counsel has been
specifically authorized by the Company, in writing, which
consent shall not be unreasonably withheld, or (b) the
Company has failed to assume the defense and to employ
counsel; and
(4) as a condition of such indemnity, the Trustee
shall use reasonable efforts to cooperate with the Company
in defense of each claim. The Company shall not be liable
for any settlement of a claim without its consent.
(c) Paying Agent's Costs and Indemnity. The Company agrees
to pay the Paying Agent the reasonable fees and expenses of the
Paying Agent and agrees to indemnify the Paying Agent as and to
the extent set forth in Section 3.10(a) of the Indenture.
SECTION 4.5 Expenses of Issuer. Except as provided in
Section 4.3 hereof, throughout the term hereof, the Company
agrees to pay to the Issuer an amount equal to the reasonable
expenses of the Issuer incident to the collection of payments or
other sums due under this Facilities Agreement, including any
reasonable attorneys' fees.
Notwithstanding the foregoing, the Company may, without
creating a default hereunder or under the Indenture, prior to
paying such expenses, contest in good faith the necessity for any
such services or expenses and the reasonableness of any such
services or expenses.
SECTION 4.6 Discharge of Liens on Payments. If any lien
shall be filed or asserted against any amounts payable hereunder,
the party against whom such lien shall have been filed shall,
within sixty (60) days after receipt of notice of the filing
thereof or the assertion thereof against such payments, undertake
to cause the same to be discharged of record, or effectively
prevent the enforcement or foreclosure thereof against such
payments, by contest, payment, deposit, bond, order of court or
otherwise.
SECTION 4.7 Inspection of the Books and Records. The
Issuer, the Trustee and the Bank shall also be permitted, at all
reasonable times and upon prior notice to the Company, to examine
the books and records of the Company with respect to the Project
Facilities. The use of all such information shall be subject to
applicable law and the Issuer, the Trustee and the Bank shall
agree, as a condition to making such inspection, to treat any
such information so obtained in a confidential manner to the
extent permitted by applicable law.
SECTION 4.8 Further Assurances and Corrective
Instruments. The Issuer and the Company agree that they will,
from time to time, execute, acknowledge and deliver, or cause to
be executed, acknowledged and delivered, such supplements hereto
and such further instruments as may reasonably be required for
correcting any inadequate or incorrect description of the Project
Facilities or facilitating the performance of this Facilities
Agreement.
SECTION 4.9 Amendments to Indenture. The Issuer
covenants and agrees that it will not, without the prior written
consent of the Company, enter into or consent to any amendment,
change or modification of the Indenture.
SECTION 4.10 Force Majeure. If by reason of Force Majeure
either the Issuer or the Company shall be rendered unable wholly
or in part to carry out its obligations under this Facilities
Agreement, and if such party gives notice and full particulars of
such Force Majeure in writing to the other party within a
reasonable time after failure to carry out its obligations under
this Facilities Agreement, such obligations (other than the
obligations of the Company specified in the last sentence of this
Section) of the party giving such notice, so long as they are
affected by such Force Majeure, shall be suspended during the
continuance of the inability then claimed, including a reasonable
time for removal of the effect thereof. The requirement that any
Force Majeure shall be reasonably beyond the control of the party
shall be deemed to be fulfilled even though any existing or
impending strike, lockout or other industrial disturbance may not
be settled but could have been settled by acceding to the demand
of the opposing Person. Notwithstanding the foregoing, the
occurrence of any Force Majeure shall not suspend or otherwise
xxxxx, and the Company shall not be relieved from, the obligation
to make payments pursuant to Article II hereof at the times
required and to make payments pursuant to Sections 4.3 and 4.5
hereof.
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default.
Any one or more of the following events shall constitute an
Event of Default:
(a) the failure of the Company to pay Facilities Payments
or Purchase Price payments, pursuant to Sections 2.3 and 2.4
hereof, when due;
(b) any failure of the Company to observe and perform any
covenant hereunder on its part to be performed (other than the
obligation to make payments pursuant to Sections 2.3 and 2.4
hereof and other than the representations, warranties, covenants,
conditions or agreements contained in Article VI) and
continuation of such failure for a period of sixty (60) days
after receipt by the Company of written notice from the Trustee
specifying the nature of such default and requesting that it be
remedied unless: (i) the Trustee shall agree in writing to an
extension of such period, or (ii) if the failure is such that it
can be corrected, but not within such period, corrective action
is instituted by the Company within the applicable period and
such failure is corrected with due diligence until satisfied
after receipt by the Company of such written notice from the
Trustee; and
(c) the occurrence of an Act of Bankruptcy, provided that
with respect to the filing of an involuntary petition in
bankruptcy or other commencement of a bankruptcy or similar
proceeding against the Company, such petition or proceeding shall
remain undismissed for sixty (60) days.
SECTION 5.2 Remedies on Default. Whenever any Event of
Default referred to in Section 5.1 hereof shall have occurred and
be continuing:
(a) The Trustee shall, but only in the event of an
acceleration of the amounts due on the Bonds pursuant to Article
VI of the Indenture, cause all installments of the Facilities
Payments to be immediately due and payable, whereupon the same
shall become immediately due and payable; and
(b) The Trustee may take whatever action at law or in
equity may appear necessary or desirable to collect the payments
then due and thereafter to become due under this Facilities
Agreement, or to enforce performance or observance of any
covenants of the Company under this Facilities Agreement;
provided, however, that it is expressly provided that none of the
Issuer, the Trustee, or any other Person acting for their own
account or by or on behalf of the Issuer, the Trustee or the
holders of the Bonds shall have any legal or equitable rights of
access, possession, sale, or use of the Project Facilities, or
the premises on which the same are situated, possessed, leased,
used or held under the Ground Lease, or to any proceeds,
revenues, income or rents derived from the sale, use, letting or
reletting thereof, for the purpose of collecting or satisfying
any claim against the Company for amounts due and payable by the
Company under this Facilities Agreement except to the extent that
the Issuer shall have such rights of access, use, possession,
income or rents in accordance with the terms of the Ground Lease.
A waiver by the Trustee of any Event of Default as permitted
by the Indenture shall also constitute a waiver of its
consequences hereunder, and any annulment of the acceleration of
the maturity of the Bonds as provided in the Indenture shall also
constitute an annulment of the acceleration of the payment
obligations of the Company and its consequences hereunder.
In addition to the provisions of Section 5.2(a) regarding
the acceleration of Facilities Payments upon the occurrence of an
Event of Default, the Company agrees to make the Facilities
Payments required pursuant to Section 2.3, including those
resulting from an acceleration of the maturity of Bonds pursuant
to Article VI of the Indenture, whether or not a default or an
Event of Default has occurred hereunder.
SECTION 5.3 Remedies Cumulative. The rights and remedies
of the Issuer or the Trustee under this Facilities Agreement
shall be cumulative and shall not exclude any other rights and
remedies of the Issuer or the Trustee allowed by law with respect
to any default under this Facilities Agreement. Failure by the
Issuer or the Trustee to insist upon the strict performance of
any of the covenants and agreements herein set forth or to
exercise any rights or remedies upon default by the Company
hereunder shall not be considered or taken as a waiver or
relinquishment for the future of the right to insist upon and to
enforce, by injunctive or other appropriate legal or equitable
remedy, a strict compliance by the Company with all of the
covenants and conditions hereof, or of the right to exercise any
such rights or remedies, if such default by the Company be
continued or repeated.
ARTICLE VI
TAX COVENANTS
SECTION 6.1 Covenants with Respect to Exclusion from
Gross Income of Interest on the Bonds. The Issuer (to the extent
that such matters are within its control) and the Company
covenant to refrain from any action which would adversely affect,
and to take such action (including the provision and enforcement
by the Company in any document of sublease or assignment of the
Company's interests in all or any part of the Project Facilities
pursuant to one or more of the Ground Lease of appropriate
covenants of the sublessee or assignee thereunder) as is
necessary to assure the treatment of the Bonds as obligations
described in section 103(a) of the Code, the interest on which is
not includable in the "gross income" of the owner thereof for
purposes of federal income taxation (other than the gross income
of a "substantial user" of the Project Facilities or a "related
person" to such a "substantial user," within the meaning of the
Code). In particular, but not by way of limitation thereof, the
Issuer and the Company covenant as follows:
(a) to take such action to assure that the Bonds are
"exempt facility bonds" as defined in section 142(a) of the Code,
at least 95 percent of the proceeds of which are used to provide
"docks and wharves" within the meaning of section 142(a)(2) of
the Code or property functionally related and subordinate
thereto;
(b) to ensure that at all times during the term of the
Bonds (and the Ground Lease) that the Project Facilities will be
treated as "governmentally owned" within the meaning of section
142(b) of the Code, including without limitation, not permitting
(or to the extent within the control of the Issuer or the
Company, permitting any other non-governmental person) to be
entitled for federal income tax to deductions for depreciation or
investment tax credit in regards to the Project Facilities;
(c) to refrain from taking any action that would result in
the Bonds being "federally guaranteed" within the meaning of
section 149(b) of the Code;
(d) to refrain from using any portion of the proceeds of
the Bonds, directly or indirectly, to acquire or to replace funds
that were used, directly or indirectly, to acquire investment
property (as defined in section 148(b)(2) of the Code) which
produces a materially higher yield over the term of the Bonds,
other than investment property acquired with --
(i) proceeds of the Bonds invested for a reasonable
temporary period or, until such proceeds are needed for the
purpose for which the Bonds are issued,
(ii) proceeds of amounts invested in a bona fide debt
service fund, within the meaning of section 1.148-1(b) of
the Regulations, and
(iii) amounts deposited in any reasonably required
reserve or replacement fund to the extent such amounts do
not exceed 10 percent of the proceeds of the Bonds (and to
the extent that at no time during any Bond Year will the
aggregate amount invested at such higher yield exceed 150
percent of debt service on the Bonds for such Bond Year) (as
defined in section 148(d)(3)(D) of the Code);
(e) to otherwise restrict the investment of the proceeds of
the Bonds or amounts treated as proceeds of the Bonds, as may be
necessary, to satisfy the requirements of section 148 of the Code
(relating to arbitrage);
(f) to use proceeds of the Bonds in an amount that is no
more than two percent (2%) of the sale proceeds of the Bonds for
the payment of costs of issuance of the Bonds;
(g) to use no portion of the proceeds of the Bonds to
provide any airplane, sky-box or other private luxury box,
facility primarily used for gambling or store the principal
business of which is the sale of alcoholic beverages for
consumption off-premises;
(h) to comply with the limitations of section 147(c) of the
Code (relating to the limitation of the use of proceeds to
acquire land) and section 147(d) of the Code (relating to
restrictions on the use of bond proceeds to acquire existing
buildings, structures or other property);
(i) the weighted average maturity of the Bonds will not
exceed 120 percent of the average reasonably expected economic
life of the Project Facilities.
When used in this Section 6.1 the terms "proceeds of the
bonds" includes all sale and investment proceeds of the Bonds.
It is the understanding of the Issuer and the Company that
the covenants contained herein are intended to assure compliance
with the provisions of the Code and any regulations or rulings
promulgated by the U.S. Department of the Treasury pursuant
thereto pertaining to obligations described in section 103(a) of
the Code. In the event that regulations or rulings are hereafter
promulgated which modify or expand provisions of the Code, as
applicable to the Bonds, the Issuer and the Company will not be
required to comply with any covenant contained herein to the
extent that such failure to comply, in the opinion of Bond
Counsel, will not adversely affect the exemption from federal
income taxation of interest on the Bonds under section 103 of the
Code. In the event that regulations or rulings are hereafter
promulgated which impose additional requirements which are
applicable to the Bonds, the Issuer and the Company agree to
comply with the additional requirements to the extent necessary,
in the opinion of Bond Counsel, to preserve the exemption from
federal income taxation of interest on the Bonds under section
103 of the Code. In furtherance of the foregoing, the President
or Vice President of the Board of Directors of the Issuer may
execute any certificates or other reports required by the Code
and make such elections, on behalf of the Issuer, which may be
permitted by the Code as are consistent with the purpose for the
issuance of the Bonds.
SECTION 6.2 Payment to Special Rebate Fund; Company
Determinations. The Company hereby covenants and agrees to make
the determinations at the times and as described in Section 4.02
of the Indenture. The Company shall accompany each copy of the
computations provided to the Issuer and the Trustee pursuant to
Section 4.02 of the Indenture with a summary of the methodology
used by the Company in preparing such computations.
In any event, if the amount of cash held in the special
Rebate Fund established pursuant to Section 4.02 of the Indenture
prior to the date on which any payment must be made by the
Trustee pursuant to Section 4.02 of the Indenture shall be
insufficient to permit the Trustee to make such payment to the
United States, the Company forthwith shall pay the amount of such
insufficiency to the Trustee in immediately available funds. The
obligations of the Company under this Section are direct
obligations of the Company, acting under the authorization of,
and on behalf of, the Issuer, and the Issuer shall have no
further obligation or duty with respect to the special Rebate
Fund.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Application of Moneys; Rights of Company.
Moneys received from the sale of the Bonds and all payments paid
by the Company and all other moneys received by the Issuer for
the payment of the principal of, premium, if any, and interest on
the Bonds under this Facilities Agreement, or the Trustee in
connection with this Facilities Agreement shall be applied solely
and exclusively in the manner and for the purposes as expressed
and specified in the Indenture and this Facilities Agreement.
Unless there shall have occurred an Event of Default hereunder,
the Company shall have and may exercise all the rights, powers
and authority stated to be in the Company hereunder and under the
Indenture, and the Indenture and the Bonds shall not be modified,
altered or amended in any manner which adversely affects such
rights, powers and authority so stated to be in the Company or
otherwise adversely affects the Company without the prior written
consent of the Company.
SECTION 7.2 Benefit of and Enforcement by the
Bondholders. The Issuer and the Company agree that this
Facilities Agreement is executed in part to induce the purchase
of the Bonds and for the further securing of the Bonds, and
accordingly all covenants and agreements on the part of the
Issuer and the Company as set forth in this Facilities Agreement
are hereby declared to be for the benefit of the holders from
time to time of the Bonds and may be enforced as provided in
Article VI of the Indenture on behalf of the Bondholders by the
Trustee.
SECTION 7.3 Limitations on Liability of Issuer, Board and
Governmental Units. All covenants, stipulations, promises,
agreements and obligations of the Issuer contained herein shall
be deemed to be the covenants, stipulations, promises, agreements
and obligations of the Issuer and not of any member, officer,
agent or employee of the Issuer, past, present or future, in his
individual capacity, or of the Board, and no recourse shall be
had for the payment of the principal of, premium, if any, or
interest on the Bonds or for any claim based thereon against the
Issuer (other than from Facilities Payments) or the Board or any
member, officer, agent or employee of the Issuer or the Board or
any natural person executing the Bonds.
SECTION 7.4 Limitation of Liability of Officers,
Employees and Agents of the Company. No covenant, agreement or
obligation contained herein shall be deemed to be a covenant,
agreement or obligation of any officer, employee or agent of the
Company in his individual capacity, and neither the employees nor
agents of the Company shall be liable personally with respect to
the execution, delivery, issuance of, as the case may be, or
actions permitted to be taken pursuant to, this Facilities
Agreement, the Indenture, the Bonds or the delivery of any
opinions and certifications in connection with the transactions
evidenced or contemplated thereby.
SECTION 7.5 Amendments to Facilities Agreement, Consent
of Trustee Required. This Facilities Agreement may be amended
only with the consent of the Issuer and the Trustee and only if
the Company and its successors and assigns shall agree to such
amendment.
SECTION 7.6 Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or when mailed by registered or
certified mail, postage prepaid, addressed as follows:
If to the Issuer at: Lake Xxxxxxx Harbor and
Terminal District
Xxxx Xxxxxx Xxx XXX
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Executive Director
If to the Company at: Global Industries, Ltd.
Xxxx Xxxxxx Xxx 00000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
If to the Trustee at: First National Bank of Commerce
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Trustee
Administration
A duplicate copy of each notice, certificate or other
communication given hereunder by either party shall also be given
to the Trustee. The Issuer, the Company and the Trustee may, by
notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 7.7 Net Agreement. This Facilities Agreement
shall be deemed and construed to be a "net agreement," and the
Company shall pay absolutely net during the term hereof all
payments required hereunder, free of any deductions, withholding
and without abatement, deduction or setoff of any kind or nature,
whether authorized by law or otherwise, other than those herein
expressly provided.
SECTION 7.8 Applicable Law. This Facilities Agreement
shall be governed by and construed in accordance with the laws of
the State (except that the conflicts of law provisions contained
within the laws of the State shall not apply) and the United
States of America.
SECTION 7.9 Ground Lease. The Company and the Issuer
have entered into the Ground Lease pursuant to which the Company
and the Issuer have certain rights and obligations relating to
the use and possession of the Project Facilities. The Issuer and
the Company hereby acknowledge and agree that the rentals payable
by the Company under the Ground Lease do not constitute payments
required to be made under Article II hereof, and there shall be
no credit or off set given to the Company as a result of making
any such payments. Ground Lease revenues are not pledged or
dedicated to the security and payment of the Bonds, nor assigned
by the Issuer to the Trustee under the Indenture or otherwise.
SECTION 7.10 Execution of Indenture. The Indenture will
not be executed without the consent of the Company and its
approval of the terms therein. The Company will, upon such
execution, duly and punctually perform and observe all the
covenants, terms and conditions and agreements on its part
contained in the Bonds and the Indenture.
SECTION 7.11 Performance Under Indenture. The Company
covenants that, so long as the Bonds are outstanding, it will
fully and faithfully perform and observe all duties, obligations
and agreements of the Company which the Issuer has covenanted and
agreed to cause the Company to perform and any duties,
obligations and agreements which the Company is required in the
Indenture to perform.
SECTION 7.12 Severability. If any clause, provision or
Section of this Facilities Agreement shall be ruled invalid by
any court of competent jurisdiction, the invalidity of such
clause, provision or Section shall not affect any of the
remaining provisions hereof.
SECTION 7.13 Counterparts. This Facilities Agreement may
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
(Execution Page Follows)
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Facilities Agreement to be executed in their respective
names all as of the date first above written.
LAKE XXXXXXX HARBOR
AND TERMINAL DISTRICT
By:
President
ATTEST:
By:
Secretary
GLOBAL INDUSTRIES, LTD.
By:
Title:_______________________
EXHIBIT A
FORM OF DISBURSEMENT REQUEST
Requisition No.: ____
__________________________________________
__________________________________________
__________________________________________
Attention: ________________________________________
Sir or Madam:
This certificate is provided to you pursuant to Section
3.2(c) of the Facilities Agreement, dated as of November 1, 1997
(the "Facilities Agreement"), between the Lake Xxxxxxx Harbor and
Terminal District (the "Issuer") and Global Industries, Ltd. (the
"Company"), and in accordance with Article III(C) of the Trust
Indenture, dated as of November 1, 1997 (the "Indenture"),
between the Authority and First National Bank of Commerce, as
trustee (the "Trustee"). The capitalized terms used in this
certificate have the same meanings given such terms in the
Facilities Agreement.
On behalf of the Company, I, the undersigned Authorized
Company Representative, do hereby certify as follows:
(1) There has been expended, or is being expended
concurrently with the delivery of this certificate an amount on
account of costs of issuance at least equal to $ ,
which amount is hereby requisitioned for disbursement from the
Cost of Issuance Fund./
(2) No other certificate in respect to the expenditures
requisitioned pursuant to clause (1) hereof is being or
previously has been delivered to the Trustee;
(3) No Event of Default has occurred and is continuing.
The Trustee is hereby directed to pay or transfer, as
applicable, the amount requisitioned by clause (1) above from the
Cost of Issuance Fund to the payee(s) in the amount(s) set forth
on Schedule I hereto.
GLOBAL INDUSTRIES, LTD.
By:
Authorized Company Representative
Exhibit 10.3
STATE OF LOUISIANA
PARISH OF CALCASIEU
GROUND LEASE AND LEASE-BACK AGREEMENT
This GROUND LEASE AND LEASE-BACK AGREEMENT (the "Ground
Lease") is made and entered into as of November 1, 1997, by and
between GLOBAL INDUSTRIES, LTD., a Louisiana corporation (the
"Company"), and LAKE XXXXXXX HARBOR & TERMINAL DISTRICT, a
political subdivision of the State of Louisiana (the "State"),
located in Calcasieu Parish, Louisiana (the "District"),
WITNESSETH:
WHEREAS, the District, a deep-water port and political
subdivision of the State of Louisiana, created, organized and
acting pursuant to the provisions of Part II of Chapter 1 of
Title 34, Part XII, Chapter 4, and Chapter 13 of Title 39 of the
Louisiana Revised Statutes of 1950, as amended, and Article VI,
Sections 21, 43 and 44 of the Constitution of the State of
Louisiana of 1974, as amended, and other constitutional and
statutory authority(collectively, the "Act"), is authorized to
own, administer, contract for, construct, operate, maintain,
lease and sell docks, wharves, sheds, elevators, locks, slips,
canals, laterals, basins, warehouses, and other works of public
improvement and all other property, equipment and facilities
necessary or useful for port, harbor and terminal purposes, and
all necessary property and appurtenances in connection with the
foregoing, and to issue its public port revenue bonds to finance
the cost of acquiring, constructing, equipping, installing and
operating docks and wharves and functionally related facilities;
and
WHEREAS, in furtherance of the Act, the District
desires to enter into this Ground Lease to induce and encourage
the location by the Company of certain dock and wharf facilities
in the District in the Parish of Calcasieu, Louisiana, which will
have a favorable economic impact on the area and the State; and
WHEREAS, the facilities to be located within the
District will consist of the acquisition and construction on
approximately 200 acres of land owned by the Company, and the
placement into operation of, a new deep-water port complex
consisting of bulkhead slips for loading and supply of barges,
boats and offshore construction vessels, with reinforced concrete
and/or crushed stone areas adjacent to the slips for support of
cranes used for loading materials and supplies on the vessels,
buildings for the storage of material and supplies for vessels,
and a pipe base for loading reel vessels; and
WHEREAS, the Company has requested the District to
issue its revenue bonds to finance and pay for a portion of the
acquisition and construction of the Project Facilities, as
defined below, which Bonds shall be payable solely from the
payments made pursuant to the Facilities Agreement, as defined
below; and
WHEREAS, the District has agreed to finance a portion
of the cost of the Project Facilities through the issuance of
bonds to be designated "Lake Xxxxxxx Harbor and Terminal District
Port Improvement Revenue Bonds (Global Industries, Ltd. Project),
Series 1997" (the "Bonds") up to an aggregate principal amount of
$28,000,000 pursuant to a Trust Indenture dated as of November 1,
1997 (the "Indenture") between the District and First National
Bank of Commerce, New Orleans, Louisiana, as trustee (the
Trustee"); and
WHEREAS, the Company has agreed in the Facilities
Agreement to make payments in an amount sufficient to pay when
due under the Indenture certain administrative costs relating to
the Bonds and (whether at stated maturity, upon redemption, upon
optional or mandatory tender, by acceleration or otherwise) the
principal of, premium, if any, and interest on the Bonds; and
WHEREAS, the District will assign all of its rights,
title and interest in and to the Facilities Agreement (except for
certain rights relating to fees, expenses and to indemnification)
to the Trustee pursuant to the Indenture;
NOW, THEREFORE, in consideration of the above recitals
and the mutual covenants hereinafter contained, the parties
herein covenant and agree as follows:
1. Definitions. (a) All terms used in this Ground
Lease which are defined in the Indenture have the same meanings
in this Ground Lease which are assigned to such terms in the
Indenture, unless otherwise defined in this Ground Lease.
In this Ground Lease (except as otherwise expressly
provided or unless the context otherwise requires) the following
terms shall have the meanings specified in the foregoing
recitals:
Act Indenture
Bonds State
Company Trustee
District
(b) The following terms shall have the meanings
specified in this Section, unless the context otherwise requires:
"Applicable Laws" shall mean all present and future
laws, ordinances, orders, rules and regulations of all federal,
state, parish, and municipal governments, departments,
commissions, or offices, in each case having applicable
jurisdiction over the Project Land, the District, or the Company.
"Company's Property" means all machinery, equipment,
furniture, and other personal property and all severable fixtures
of any kind at any time made, installed, fixed, or placed on, in,
or to the Project Land by the Company and not acquired from
proceeds of the Bonds.
"Company Term" means the period during which the
Project Facilities are leased to the Company and the Project Land
is subleased to the Company, all by the District, in accordance
with the provisions of Section 3.1(b).
"District-Created Lien" means any lien, charge, or
encumbrance arising or resulting from acts or omissions of the
District or its sublessees (other than the Company).
"District Term" means the period during which the
Project Land is leased to the District by the Company in
accordance with the provisions of Section 3.1(a).
"Facilities Agreement" means the Facilities Agreement
dated as of November 1, 1997, by and between the District and the
Company, and all amendments and supplements thereto.
"Ground Lease Commencement Date" means the date of
completion of the Project Facilities as certified to the District
by the Company in accordance with provisions of the Facilities
Agreement and the Indenture, which date shall not be later than
the date that the Project Facilities are placed in service by the
Company within the meaning of the Internal Revenue Code of 1986.
"Impositions" means (i) all real or personal property
taxes and assessments on the Project Facilities or the Project
Land, (ii) water and sewer user fees, rents, charges for public
utilities, governmental excises, levies, license, impact and
permit fees, and (iii) other governmental charges which at any
time during the term of this Ground Lease may be assessed,
levied, confirmed, imposed upon or become due and payable in
respect of or become a lien on the Project Facilities, the
Project Land, any part thereof or any appurtenance thereto.
"Person" means and includes natural persons,
corporations, general partnerships, limited partnerships, joint
stock companies, limited liability companies and partnerships,
joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts, or other organizations,
whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"Plans and Specifications" means the plans and
specifications for the construction of the Project Facilities.
"Project Facilities" means the construction,
acquisition and placing into operation of a new deep-water port
complex for the primary benefit of the Company within the
boundaries of the District and which is more particularly
described on Exhibit 2.
"Project Facilities Payments" means each payment
obligation of the Company under the Facilities Agreement,
including (i) with respect to the Bonds, the principal of,
redemption premium, if any, and interest on the Bonds, (ii) all
fees and expenses of the Trustee and the Paying Agent, and
(iii) any other payment obligations of the Company required by
the resolution adopted by the District authorizing the issuance
of the Bonds, the Facilities Agreement or the Indenture.
"Project Land" means approximately 200 acres of land
owned by the Company and more specifically described on Exhibit 1
of this Ground Lease.
"Remainder Term" means that portion of the District
Term when neither the Company Term nor the Renewal Term is in
effect.
"Renewal Term" shall have the meaning provided in
Section 3.2 hereof.
2. Ground Lease and Leaseback.
2.1 (a) The Ground Lease. Upon the terms and
conditions hereinafter set forth, and for the consideration set
forth in Section 4.1(a) hereof, the Company hereby leases to the
District and the District hereby leases from the Company the
Project Land for the District Term.
(b) The Leaseback. Upon the terms and conditions
hereinafter set forth, and for the consideration set forth in
Section 4.1(b) hereof, the District hereby leases to the Company
the Project Facilities and the District hereby subleases the
Project Land to the Company for the Company Term. The District
shall have no right to use, occupy or enjoy any benefits of the
Project Land or the Project Facilities during the Company Term.
2.3 Wharf and Dock Privileges. The Company shall have
the right to use all docks and wharves of the District which are
not part of the Project Facilities for the berthing of vessels,
barges, and other watercraft of the Company, its agents,
contractors, and invitees, and for the unloading or loading of
cargo, provided that such Persons comply with all rules and
regulations, including the payment of applicable charges, of the
District as contained in the District's published tariff. The
use by the Company of the Project Facilities during the Company
Term and the Renewal Term, if applicable, shall be subject to no
charge or tariff other than the obligation to make the Project
Facilities Payments.
3. Term.
3.1 (a) District Term. The District Term shall be
forty-five (45) years, commencing at 12:01 a.m. on the Ground
Lease Commencement Date and, unless sooner terminated as
hereinafter provided, ending at 11:59 p.m. on the forty-fifth
(45th) annual anniversary of the Ground Lease Commencement Date.
(b) Company Term. The Company Term shall be
thirty-five (35) years and eleven (11) months, commencing at
12:01 a.m. on the Ground Lease Commencement Date and, unless
sooner terminated as hereinafter provided, ending at 11:59 p.m.
on the day that is thirty-five (35) years and eleven (11) months
from the Lease Commencement Date.
3.2 Renewal Term. The Company shall have the option
to renew this Ground Lease upon the expiration of the Company
Term for a single renewal term of nine (9) years and one (1)
month (the "Renewal Term"). The Renewal Term shall begin on the
termination of the Company Term and continue through the
termination of the District Term. The Company must provide the
District with notice of its intention to exercise this lease
renewal option at least thirty (30) days prior to the expiration
of the Company Term, provided, however, that should the Company
fail to deliver such notice then the Company shall have at least
thirty (30) days from receipt of notice from the District to the
effect that the renewal option must be exercised or forfeited
within which to make such election. The rental during the
Renewal Term shall be the fair market lease value of the Project
Facilities as determined by appraisers appointed by the Company
and the District. In the event the appraisers appointed by the
Company and the District cannot agree as to the fair market lease
value for the Renewal Term, the Company and District shall
petition the United States District Court for the Western
District of Louisiana to appoint an appraiser whose determination
shall be valid unless it differs by more than fifteen (15%)
percent from the fair market value established by the appraiser
for either the Company or District. If such event occurs, the
fair market value rental for the Renewal Term shall be determined
by arbitration in accordance with the rules of the American
Arbitration Association. In determining the fair market value
for the lease payments during the Renewal Term, all appraisers
shall take into account the fact that the Project Facilities are
on leased land, that the Renewal Term shall only be for nine (9)
years and one (1) month, and that at the end of the Renewal Term
the Project Facilities will revert to the owner of the Project
Land.
3.3 Option to Purchase. The Company shall have the
option to purchase the Project Facilities for the fair market
value thereof any time during the District Term. The purchase
price shall be the fair market value of the Project Facilities
determined by appraisal. The appraisal shall be conducted in the
same manner as the appraisal described in Section 3.2 above.
3.4 Right of First Refusal. At all times during the
Remainder Term the Company shall have a continuing right of first
refusal to lease or purchase the Project Facilities from the
District on the same terms and conditions as may be contained in
any proposed agreement between the District and any prospective
third party lessee or purchaser, provided the consideration is at
least fair market value. The Company shall have sixty (60) days
from receipt of written notice from the District about a proposed
lease or purchase within which to exercise its right of first
refusal by providing the District written notice of its intention
to so do. Any notice by the District under this Section 3.4
shall be accompanied with an unexecuted form of the definitive
lease or sale documentation to be entered into with the proposed
third party lessee or purchaser.
3.5 Title to Project Facilities. At all times during
the District Term title to the Project Facilities shall be in the
District unless title is acquired by the Company pursuant to
Section 3.3 above. Upon the termination of the District Term for
any reason, title to Project Facilities shall vest in the Company
without any payment due the District therefore.
4. Rent.
4.1 (a) District Rent. The consideration ("District
Rent") for the lease of the Project Land by the Company to the
District for the District Term shall be (i) the obligation of the
District to issue the Bonds to finance the construction of the
Project Facilities on the Project Land, (ii) the lease by the
District to the Company as provided herein and (iii) the
obligation of the District to provide approximately 300,000 cubic
yards of fill material to designated portions of the Project Land
in accordance with the agreement entitled "Development Agreement"
(hereinafter the "Development Agreement"), dated as of October
21, 1997, among the District, the Police Jury of the Parish of
Calcasieu and the Company.
(b) Company Rent. The consideration ("Company
Rent") for the lease of the Project Facilities and sublease of
the Project Land by the District to the Company for the Company
Term shall be the obligation of the Company (i) to pay the
Project Facilities Payments and (ii) the prompt performance by
the Company of the other covenants and agreements to be kept and
performed by the Company under the Facilities Agreement and this
Ground Lease. The Company shall have the right to prepay Company
Rent to the extent permitted by the Facilities Agreement or the
Indenture.
4.2 Due Date. The due date of any rent by the
District or the Company under this Ground Lease shall be on the
dates designated in the Facilities Agreement, the Development
Agreement and the Indenture.
4.3 Place of Payment of Company Ground Rent. All
payments of Company Rent shall be payable as specified in the
Facilities Agreement and Indenture.
5. Net Lease; Taxes and Utility Expenses.
5.1 Net Lease. The lease of the Project Facilities
and the sublease of the Project Land to the Company by the
District is a net lease. During the Company Term and the Renewal
Term, if applicable, the Company shall pay or cause to be paid
all operating costs and Impositions of every kind and nature
whatsoever relating to the Project Land and Project Facilities
except as expressly otherwise provided in this Ground Lease. The
Company shall pay the Company Rent absolutely net throughout the
Company Term and the Renewal Term, if applicable, free of any
charge, assessments, Impositions, expenses, or deductions of any
kind, and without abatement, deduction or set off. During the
Remainder Term, the District shall pay or cause to be paid all
operating costs and Impositions of any kind and nature whatsoever
related to the Project Land and Project Facilities, but only if
the District is actually operating any of the Project Facilities
directly or indirectly through any sublessee, licensee,
concessionaire or otherwise.
5.2 Taxes and Utility Expenses.
(a) Subject to Section 5.2(b) hereof, the Company
shall pay or cause to be paid, before any fine, penalty,
interest, or cost may be added thereto for the nonpayment
thereof, all Impositions that are payable during the Company Term
and the Renewal Term, if applicable.
(b) During the Company Term and the Renewal Term, if
applicable, the Company shall bear the burden of and shall make
timely remittances of all Impositions and shall file timely, with
appropriate governmental units, all returns, statements, and
reports legally required with respect thereto. The Company shall
promptly remit to any governmental unit any such Imposition,
unless the Company shall in good faith, with due diligence, and
by appropriate judicial or administrative proceedings, contest
the validity, applicability, or amount thereof.
(c) The Company, upon the request of the District,
shall furnish to the District, within thirty (30) days after the
date when an Imposition becomes delinquent if not paid, official
receipts of the appropriate taxing authority or other evidence
satisfactory to the District evidencing the payment thereof. The
certificate, advice or xxxx of non-payment of such Imposition
issued by the proper official designated by law to make or issue
the same or to receive payment of an Imposition shall be prima
facie evidence that such Imposition is due and unpaid at the time
of the making of such certificate, advice, or xxxx.
(d) Except as expressly otherwise provided herein,
nothing contained herein shall modify, amend, or constitute a
waiver of, expressly or by implication, any applicable taxes or
Imposition with respect to all or any portion of the Project or
the operation thereof. The Company shall give the District ten
(10) days prior written notice of the Company's intention to
contest any Imposition. Any contest of an Imposition shall be at
the Company's sole cost and expense.
5.3 Utility Connections. During the Company Term and
the Renewal Term, if applicable, the Company shall be responsible
for obtaining, at its own cost, electricity, telephone and other
utility service to the Project Land and Project Facilities.
5.4 Obligations during Remainder Term.
Notwithstanding anything to the contrary contained herein, the
District, during the Remainder Term, shall not be liable for any
Impositions, operating costs, utility costs, maintenance costs,
any obligation to insure the Project Land or Project Facilities
or any other cost associated with the Project Land or Project
Facilities unless the District is actually operating any of the
Project Facilities, directly or indirectly through any sublessee,
licensee, concessionaire or otherwise. If the District does not
operate any of the Project Facilities during the Remainder Term,
the Company shall be obligated to pay all Impositions and costs
required to secure the Project Land and Project Facilities.
6. Project Facilities.
6.1 Construction. A general description of the
Project Facilities is attached hereto as Exhibit 2. The Project
Facilities shall be constructed and completed in substantial
conformity with the Plans and Specifications, provided that the
Plans and Specifications may be modified by the Company in
accordance with the terms of the Facilities Agreement. The
Company shall proceed with due diligence to construct, build and
place into service the Project Facilities as required by the
Facilities Agreement. The Project Facilities shall be built in
accordance with all Applicable Laws.
6.2 Completion Date. The Company shall endeavor to
complete construction of the Project Facilities in substantial
conformity with the Plans and Specifications within 36 months of
the commencement of construction. Any delays in the completion
of construction of the Project Facilities caused primarily by
strike, lock-outs, labor disputes, wars, insurrections, riots,
fires, acts of God, inability to obtain construction materials
due to governmental regulations or interference, rationing, or
other restrictions and conditions or causes unavoidable or
reasonably beyond the control of the Company shall be deemed
reasonable delays, and the time with which the Company shall
complete the construction of said Project Facilities and the
construction completion date shall be extended by the length of
such delay.
6.3 District's Right to Inspect. The District, its
officers, representatives, agents, and employees shall have the
right at their sole cost (unless otherwise agreed to by the
Company) and risk, at reasonable times and upon reasonable
advance notice to the Company, to examine and inspect the Project
Facilities in order to determine that same substantially conforms
to the Plans and Specifications, including the right to observe
or conduct reasonable tests of the Project Facilities to the
extent necessary to determine such substantial conformity to the
Plans and Specifications. If any test conducted by or on behalf
of the District under this Section 6.5 reveals that the Project
Facilities are not in substantial conformity with the Plans and
Specifications, the Company shall pay the costs of such test;
otherwise, the cost of all such tests shall be at the District's
expense.
6.4 Company's Property. All Company's Property shall
at all times be and remain the sole property of the Company. The
Company shall be entitled to remove Company's Property from the
Project Land at any time during or within ninety (90) days after
the expiration of the Company Term, or the Renewal Term, if
applicable, provided the Company repairs any damage caused by
such removal. The Company and the District agree to execute from
time to time such documentation as may be reasonably requested by
either party to evidence or confirm ownership of the Project
Facilities or the Company Property.
6.5 Maintenance. (a) During the Company Term and the
Renewal Term, if applicable, the Company will, at its sole cost,
keep the Project Facilities and any and all property, open areas,
sea walls, bulkheads, moorings, buildings, fixtures and building
equipment that are brought onto or constructed or placed upon,
the Project Land by the Company in a reasonably good state of
repair that is consistent with the Company's use of the Project
Facilities, and the Company will, at its sole cost, repair such
property as often as the Company deems necessary.
(b) During the Remainder Term, the District will
cause the Project Facilities and any and all property, open
areas, seawalls, bulkheads, wharves, moorings, buildings,
fixtures and building equipment that are brought on to or
constructed or placed upon the Project Land to be kept in a
reasonably good state of repair and condition.
6.6 Signs. During the Company Term, the Company shall
be permitted to place reasonable signs and other means of
identification of its business on the Project Land so long as the
same comply with applicable statutes, laws, and ordinances.
6.7 Alterations. During the Company Term and the
Renewal Term, if applicable, the Company may make such
improvements or alterations on the Project Land and to the
Project Facilities without the District's approval or consent as
long as such alterations and improvements do not violate any
Applicable Law. During the Remainder Term, the District may not
without Company approval make any improvements or alterations to
the Project Land or Project Facilities.
7. Surrender of Project Facilities and Project Land.
7.1 Surrender at the End of Terms. The District and
the Company mutually agree that on the last day of the District
Term, the Company Term or the Renewal Term, as applicable, or
upon the earlier termination of this Ground Lease for any reason,
to vacate the Project Land and Project Facilities. The District
further agrees that upon the conclusion of the District Term it
will execute such documents as may be reasonably required to
surrender and deliver title to the Project Facilities to the
Company.
7.2 District Not Liable. The District shall not be
responsible for any loss or damage occurring to any real or
personal property owned, leased, or operated by the Company, its
agents, or employees, during the Company Term, other than, to the
extent permitted by law, for such loss or damage occurring as a
result of the willful misconduct of the District, its officers,
representatives, agents, or employees or the District's
misrepresentations or its breach of or default under this Ground
Lease.
8. Use.
8.1 No Unlawful Activities. The Company agrees not to
make any unlawful use of the Project Land and the Project
Facilities, including without limitation, any use constituting a
nuisance of the Project Facilities or Project Land or to
adjoining or neighboring property.
8.2 Permitted Uses. The Company covenants not to use
or permit the Project Land to be used for any purpose other than
(i) the construction and operation of the Project Facilities as
provided herein, (ii) such other uses as may be functionally
related or subordinate to the operations of the Project
Facilities and (iii) any other uses as may be approved by the
District in writing. The District shall not unreasonably
withhold, delay or condition its approval of such other use. The
District shall not be required to approve any such other use
which shall be for an unlawful purpose.
8.3 Waste. The Company during the Company Term and
the Renewal Term, if applicable, and the District during the
District Term, shall not cause, allow, or suffer to exist any
waste of the Project Land or the Project Facilities.
8.4 Reserved.
9. Indemnification.
9.1 Company's General Agreement to Indemnify. The
Company releases the District, its officers, representatives,
employees, agents, successors and assigns, (individually and
collectively, "District Indemnitee") from, assumes any and all
liability for, and agrees to indemnify the District Indemnitee
against all claims, liabilities, obligations, damages, penalties,
litigation, costs, charges, and expenses (including, without
limitation, reasonable attorney's fees, engineers' fees,
architects' fees, and the costs and expenses of appellate action,
if any), imposed on, incurred by or asserted against the District
Indemnitee or its interest in real property in the Project Land
arising out of (i) the use or occupancy of the Project Land and
Project Facilities by the Company, its officers, representatives,
agents, and employees, (ii) the construction or operation of the
Project Facilities by the Company, its officers, representatives,
agents, and employees, (iii) any claim arising out of the use,
occupancy, operation, or construction of the Project Facilities
on the Project Land by the Company, its officers,
representatives, agents, and employees, and (iv) activities on or
about the Project Facilities and Project Land by the Company, its
officers, representatives, agents, and employees, of any nature,
whether foreseen or unforeseen, ordinary, or extraordinary, in
connection with the construction use, occupancy, operation,
maintenance, or repair of the Project Facilities on the Project
Land by the Company, its officers, representatives, agents, and
employees; provided, however, that any such claim, liability,
obligation, damage or penalty arising solely as a result of the
negligence or willful misconduct of the District Indemnitee shall
be excluded from this indemnity. The Company shall indemnify the
District to the maximum extent permitted by law and the indemnity
provided in this section shall include within its scope any
liability imposed by law on the District on a strict liability
theory as landowner for physical defects in the Project Land or
Project Facilities, it being the intention of the Company to
assume liability for such defects in the Project Land or Project
Facilities during and after the term of this Ground Lease. This
section shall include within its scope but not be limited to any
and all claims or actions for wrongful death, but any and all
claims brought under the authority of or with respect to any
local, state, or federal environmental statute or regulation
shall be covered by Section 9.2 and not this Section 9.1.
9.2 Company's Environmental Indemnification. The
Company agrees that it will comply with all environmental laws
and regulations applicable to the Company, including without
limitation, those applicable to the use, storage, and handling of
hazardous substances in, on, or about the Project Land or Project
Facilities. The Company agrees to indemnify and hold harmless
each of the District Indemnitee against and in respect of, any
and all damages, claims, losses, liabilities, and expenses
(including, without limitation, reasonable attorneys, accounting,
consulting, engineering, and other fees and expenses), which may
be imposed upon, incurred by, or assessed against any of the
District Indemnitee by any other party or parties (including,
without limitation, a governmental entity), arising out of, in
connection with, or relating to the subject matter of: (a) the
Company's breach of the covenant set forth above in this Section
9.2 or (b) any environmental condition of contamination on or
about the Project Land or Project Facilities or any violation of
any federal, state, or local environmental law with respect to
the Project Land or Project Facilities.
9.3 Survival of Indemnities. The foregoing
indemnities shall survive the term hereof and shall be in
addition to any of the District's or the Company's obligations
for breach of a representation or warranty.
10. Insurance. During the Company Term and the
Renewal Term, if applicable, the Company shall maintain such
casualty and liability insurance for the Project Facilities and
the Project Land, including such deductibles and self retention,
as is customarily maintained for like facilities and operations.
During the Remainder Term, the District shall maintain such
casualty and liability insurance for the Project Facilities as
the Company may reasonably require. Each party shall name the
other party as an additional insured on any insurance obtained in
performance of this covenant.
11. Liens and Mortgages.
11.1 Prohibition of Liens and Mortgages. The Company
shall not create or permit to be created or to remain in
connection with the Project Facilities, the Project Land, or the
Company's activities thereon, any liens or mortgages against any
property interest of the District, and the Company shall
discharge any lien, encumbrance, or charge (levied on account of
any Imposition or any mechanics', laborers', or materialmen's
lien or security agreement) which might be or become a lien,
encumbrance, or charge upon the District's interest in the
Project Facilities and Project Land or any part thereof in
accordance with Section 11.2 hereof.
11.2 Discharge of Liens. If any mechanics', laborers',
or materialmen's lien (other than a District-Created Lien) shall
at any time be filed against the District's interest in the
Project Facilities or Project Land or any part thereof in
connection with the Company's activities thereon, the Company,
within 30 days after notice of the filing thereof, shall elect to
contest the same or cause the same to be discharged of record by
payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If the Company does not contest such
lien and shall fail to cause such lien to be discharged within
the period aforesaid, then in addition to any other right or
remedy of the District hereunder, the District may, but shall not
be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien by
deposit or by bonding proceedings, and in any such event the
District shall be entitled, if the District so elects, to compel
the prosecution of an action for the foreclosure of such lien by
the lienor with interest, attorneys' fees, costs, and allowances.
Any amount so paid by the District and all costs and expenses
incurred by the District in connection therewith, including
reasonable attorneys' fees together with interest thereon at one
percent (1%) per annum above the prime rate of interest quoted
from time to time by Bank of America, New York, as Bank of
America's Prime Rate, from the respective dates of the District's
making of the payment or incurring of the cost and expense, shall
constitute additional rent payable by the Company under this
Ground Lease and shall be paid by the Company to the District
within fifteen (15) days of written demand therefor.
11.3 District Not Liable For Mechanic's Liens. Nothing
herein contained shall be deemed or construed in any way to
constitute the consent of or request by the District, express or
implied, to a contractor, subcontractor, laborer or materialman
for the performance of any labor or the furnishing of any
materials for any specific improvement, alteration to or repair
of the Project Facilities or Project Land or any part thereof.
NOTICE IS HEREBY GIVEN THAT THE DISTRICT SHALL NOT BE LIABLE FOR
ANY LABOR OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE
COMPANY UPON CREDIT AND THAT NO MECHANIC'S OR OTHER LIEN FOR ANY
SUCH LABOR OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTERESTS
OF THE DISTRICT IN AND TO THE PROJECT FACILITIES OR THE PROJECT
LAND.
11.4 Consent to Ground Leasehold Mortgages. Except as
may be prohibited by the Facilities Agreement or the Indenture,
the Company may encumber the Ground Lease and any interest
connected to the Ground Lease, including the Project Facilities.
12. Entry on Premises by District.
12.1 Entry on Premises. The Company shall permit the
District and its authorized representatives to enter the Project
Land during normal business hours upon reasonable notice, which
shall be no less than twenty-four (24) hours in advance, for the
purposes of inspecting the Project Facilities and the Project
Land and verifying compliance by the Company with the terms of
this Ground Lease.
13. Destruction by Fire or Other Casualty.
If Project Facilities erected on the Project Land shall
be destroyed or so damaged by fire or any other casualty
whatsoever, not due to the willful misconduct of the Company,
where repair or restoration cannot be reasonably accomplished
within one hundred and twenty (120) days of the date of such fire
or casualty, the Company, by written notice to the District
accompanied by a certified copy of a resolution of the Board of
Directors of the Company to such effect, may, at its election,
decide not to restore nor reconstruct the Project Facilities and
cancel this Ground Lease, provided that all outstanding Bonds are
paid or defeased contemporaneously with the termination of this
Ground Lease.
14. Restriction on Assignments and Transfers.
The Company may assign its interest under this Ground
Lease, in whole or in part, or sublet all or any portion of the
Project Facilities or the Project Land, without the consent of
the District.
15. Events of Default of Company.
If any one or more of the following events shall happen
and not be remedied as herein provided an Event of Default shall
be deemed to have occurred:
15.1 Facilities Agreement. An Event of Default occurs
under the terms and provisions of the Facilities Agreement.
15.2 Breach of Covenant. If the Company shall default
in the performance of, or compliance with, any of the covenants,
agreements, terms, or conditions contained in this Ground Lease
other than those referred to in the foregoing Section 15.1, and
such default shall continue for a period of sixty (60) days after
written notice thereof from District to the Company specifying
the nature of such default and the acts required to cure the
same, or, in the case of a default or a contingency which cannot
with due diligence be cured within such period of sixty (60)
days, the Company fails to proceed with all due diligence within
such period of sixty (60) days, to commence cure of the same and
thereafter to prosecute the curing such default with all due
diligence (it being intended that in connection with a default
not susceptible of being cured with due diligence within sixty
(60) days that the time of the Company within which to cure same
shall be extended for such period as may be necessary to complete
the same with all due diligence).
15.2 District's Remedies. Cure.
(a) Right to Cure. Upon the occurrence of an Event of
Default, the District may take whatever actions are reasonably
necessary to cure such Event of Default, including the hiring of
attorneys, contractors, consultants, architects, engineers,
laborers, or others, purchasing the required goods or services
and procuring necessary insurance or performance bonds. The
Company shall be responsible for all costs, including attorney's
fees and the fees of other professionals, reasonably incurred by
the District pursuant to this Section and such costs shall be
billed to the Company in addition to any and all rent due
hereunder. The Company shall pay all such additional costs and
charges within fifteen (15) days after billing by the District.
(b) Injunctions and Damages. Upon the occurrence of
any Event of Default hereunder, the District at any time
thereafter shall have the right to enjoin such breach and to
invoke any right and remedy allowed herein, by law or in equity,
or by statute or otherwise including, without limitation,
remedies at law for damages and for reimbursement of expenses to
the District in connection with any such action, including
reasonable attorney's fees, costs, and appellate expenses.
16. Events of Default of the District.
16.1 District's Event of Default. Any failure of the
District to comply with any of its obligations under this Ground
Lease shall constitute a "District's Event of Default" hereunder
if such failure continues for sixty (60) days after the Company
gives the District written notice thereof and the acts required
to cure the same.
16.2 Company's Remedies. In the event of a District's
Event of Default of the District under this Ground Lease, the
Company may seek any right or remedy authorized by law, including
dissolution or damages, provided such remedy is not inconsistent
with the provisions of the Facilities Agreement.
16.3 Right to Cure. Upon the occurrence of a
District's Event of Default, the Company may take whatever
actions are reasonably necessary to cure such Event of Default,
including the hiring of attorneys, contractors, consultants,
architects, engineers, laborers, or others, purchasing the
required goods or services and procuring necessary insurance.
The District shall be responsible for all costs including
attorneys' fees and the fees of other professionals, reasonably
incurred by the Company pursuant to this Section and such costs
shall be billed to the District
16.4 Company's Right to Damages. Except to the extent
specifically waived in this Ground Lease, the Company shall have
the right, with or without canceling this Ground Lease, to
recover damages caused by a District's Event of Default.
17. Mutual Obligations.
17.1 Obligations to Mitigate Damages. Both the
District and the Company shall have the obligation to take
reasonable steps to mitigate their damages caused by any default
under this Ground Lease.
17.2 Failure to Enforce Not a Waiver. No failure by
either party to insist upon the strict performance of any
covenant, agreement, term, or condition of this Ground Lease or
to exercise any right or remedy arising upon the breach thereof,
and no acceptance by any party of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any
such breach of such covenant, agreement, term, or condition. No
covenant, agreement, term, or condition of this Ground Lease to
be performed or complied with by either party and no breach
thereof shall be waived, altered, or modified except by a written
instrument executed by both parties. No waiver of any breach
shall affect or alter this Ground Lease, but each and every
covenant, agreement, term, or condition of this Ground Lease
shall continue in full force and effect with respect to any other
then existing or subsequent breach hereof.
17.3 Rights Cumulative. Each right and remedy of the
parties provided in this Ground Lease shall be cumulative and
shall be in addition to every other right or remedy provided for
in the Facilities Agreement or now or thereafter existing at law
or in equity or by statute or otherwise (excluding, however,
specific performance against the Company) and the exercise or
beginning of the exercise by the parties of any one or more of
such rights or remedies provided for in this Ground Lease or now
or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise
by the parties of any or all other such rights or remedies
provided for in this Ground Lease or now or hereafter existing at
law or in equity or by statute or otherwise.
18. Notices.
18.1 Addresses. All notices, demands, and requests
which may or are required to be given hereunder shall be in
writing, delivered by personal service, or shall be sent by
facsimile, United States registered or certified mail, return
receipt requested, postage prepaid, to the parties at the
following numbers and addresses:
To the Company: Global Industries, Ltd.
P. O. Box 31936
000 Xxxxxx Xxxxxx (70503)
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
To the District: Executive Director
Lake Xxxxxxx
Harbor & Terminal District
000 Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
or to such other numbers or addresses as either party may from
time to time designate by written notice to the other party
hereto at least fifteen (15) days in advance of an effective date
stated therein.
18.2 When Deemed Delivered. Notices, demands, and
requests which may or shall be served in accordance with Section
18.1 hereof shall be deemed sufficiently served or given for all
purposes hereunder at the earlier of (i) the time such notice,
demand, or request shall be received by the addressee, or (ii)
ten (10) days after posting via United States registered or
certified mail, return receipt requested, postage prepaid.
19. Quiet Enjoyment; Title.
19.1 Quiet Enjoyment. Subject to the Company's
performance of the terms and conditions of this Ground Lease, the
Company at all times during the Company Term and the Renewal
Term, if applicable, shall quietly have and enjoy the Project
Land and Project Facilities during the term of this Ground Lease,
without hindrance or molestation by the District or anyone
claiming or under or through the District. This agreement shall
be construed as a covenant running with the land. Nothing in
this Section or any other section herein shall constitute a
waiver of the District's exercise of its police powers under the
law applicable to third parties generally.
19.2 Company's Title. The Company represents and
warrants that the Company is the sole record holder of good
title to the Project Land subject to no material encumbrances
which would materially affect the power of the District or of the
Company to carry out the provisions of this Ground Lease or the
Facilities Agreement, including the District's and Company's
respective use, enjoyment and peaceful possession of the Project
Land and Project Facilities or would prevent the District or the
Company from obtaining a leasehold policy of title insurance
insuring their respective interests in the Project Land without
exceptions to which the District or the Company, respectively,
may reasonably object.
19.3 Authority. The Company and District represent and
warrant that the Company and the District, respectively, are
authorized to enter into this Ground Lease for the term hereof;
that the provisions of this Ground Lease do not and will not
conflict with or violate any of the provisions of existing
agreements between the District or the Company, respectively, and
any third party; that the certificate of occupancy of the Project
Facilities, when issued, will allow the Company to use the
Project Facilities for the purposes set forth herein, subject to
applicable federal, state, and local laws, ordinances, and
building codes.
20. Reserved.
21. Eminent Domain.
21.1 Complete Condemnation. If, during the term
hereof, the whole of the Project Land (or, in the reasonable
opinion of the Company, any material portion thereof) shall be
taken under the power of eminent domain by any public or private
authority, then this Ground Lease and the term hereof shall cease
and terminate as of the date of such taking, provided that the
amount of any monetary award for the purchase price of the
expropriated property shall be appropriated and disposed of as
provided for in the Indenture.
24. Miscellaneous.
24.1 Time is of the Essence. Time is of the essence of
each and all of the terms and provisions of this Ground Lease.
24.2 Reserved.
24.3 Successors. The covenants, agreements, terms,
provisions, and conditions contained in this Ground Lease shall
apply to and inure to the benefit of and be binding upon the
District and the Company and their respective successors and
assigns, except as expressly otherwise herein provided, and shall
be deemed covenants running with the respective interests of the
parties hereto.
24.4 Surviving Covenants. Each provision of this
Ground Lease which may require performance in any respect by or
on behalf of either the Company or the District after the
expiration of the term hereof or its earlier termination shall
survive such expiration or earlier termination.
24.5 Headings. The headings and section captions in
this Ground Lease and the Table of Contents are inserted only as
a matter of convenience and for reference and in no way define,
limit, or describe the scope or intent of this Ground Lease or in
any way affect this Ground Lease as to matters of interpretation
or otherwise.
24.6 No Oral Change or Termination. This Ground Lease
and the exhibits appended hereto and incorporated herein by
reference contain the entire agreement between the parties hereto
with respect to the subject matter hereof, supersedes any prior
agreements or understandings between the parties with respect to
the subject matter hereof, and no change, modification, or
discharge hereof in whole or in part shall be effective unless
such change, modification, or discharge is in writing and signed
by the party against whom enforcement of the change,
modification, or discharge is sought. This Ground Lease cannot
be changed or terminated orally.
24.7 Governing Law; Severability. This Ground Lease
shall be governed by and construed in accordance with the laws of
the State of Louisiana. To the extent permitted by law, the
parties hereto shall be deemed to have waived to the maximum
extent possible all legal provisions to the end that this Ground
Lease shall be enforceable in accordance with its terms. If any
term or provision of this Ground Lease or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remaining provisions of this Ground Lease or
the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Ground Lease shall be valid and enforceable to
the fullest extent permitted by law.
24.8 Counterparts. This Ground Lease may be executed
in one or more counterparts, each of which so executed shall be
deemed to be an original and all of which together shall
constitute but a single document.
24.9 Litigation. In case of any litigation between the
parties hereto regarding the subject matter hereof, the losing
party shall pay all reasonable costs and expenses (including
reasonable attorneys' fees) of the prevailing party.
24.10 Gender of Words. Words of any gender in this
Ground Lease shall be held to include masculine or feminine and
words denoting a singular number shall be held to include the
plural, and plural shall include the singular, whenever the sense
requires.
24.11 Sovereign Immunity; Statutory Authority. The
District represents and warrants that it has the statutory
authority to enter into this Ground Lease, that, when executed,
this Ground Lease shall be binding and enforceable in accordance
with its terms, and that it is not immune from suit or judgment
resulting from any claim or action brought against it by the
Company pursuant to the express terms of this Ground Lease.
24.12 No Brokers. Neither party to this Ground
Lease shall be liable for any real estate brokers' or leasing
agents' commissions in the absence of a written agreement which
expressly provides therefor nd which is to be charged.
24.13 Legal Relationships. This Ground Lease shall
not be interpreted or construed as establishing a partnership or
joint venture between the District and the Company and neither
party shall have the right to make any representations or be
liable for the debts or obligations of the other. Neither party
is executing this Ground Lease as an agent for an undisclosed
principal. No third party is intended to be benefitted by this
contract.
24.14 Memorandum of Lease. At either party's
request, the parties hereto agree to execute and cause to be
properly recorded a memorandum of this Ground Lease, sufficient
in form and content to give third-parties constructive notice of
the Company's interest hereunder.
IN WITNESS WHEREOF, the undersigned parties have
executed this Ground Lease as of the date first above written.
District:
LAKE XXXXXXX HARBOR & TERMINAL
DISTRICT
By: _____________________________
Name: __________________________
Title: Executive Director and CEO
Company:
GLOBAL INDUSTRIES, LTD.
By: _____________________________
Name: __________________________
Title: __________________________
LIST OF EXHIBITS
Exhibit 1 Project Land Legal Description and Permitted
Encumbrances
Exhibit 2 Description of Project Facilities
EXHIBIT 1
The Project Land will be a portion of the approximately
six hundred (600) acre tract of land described on Schedule 1
hereto. The Company shall deliver to the District a complete
legal description of the Project Land on or before the Lease
Commencement Date.
EXHIBIT 2
Description of Project Facilities
The Project consists of the acquisition and
construction on approximately 200 acres of land owned by the
Company of certain buildings and equipment to be used by the
Company's fleet of offshore construction vessels. The property
constituting the Project includes, but is not limited to,
bulkhead slips for loadout and supply of barges and boats,
pipebase for welding pipe for loading on seagoing vessels of the
Company, ancillary buildings for storage of material and supplies
for said vessels, and other property which is functionally
related and subordinate thereto. In addition, the Project
includes the reinforcement of areas adjacent to the slips for
support of cranes used for loading materials and supplies on the
vessels.
