FOURTH AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO RESTATED CREDIT AGREEMENT
(hereinafter referred to as the Agreement) dated as of the
16th day of September, 1998 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), HIBERNIA NATIONAL BANK (Hibernia), PARIBAS
(Paribas), WHITNEY NATIONAL BANK (Whitney) and XXXXX FARGO
BANK NATIONAL ASSOCIATION (Xxxxx Fargo) (Bank One, ABN, CL,
Fuji, Hibernia, Paribas, Whitney and Xxxxx Fargo 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 (with Bank One, the AOriginal Bank Group@); and
WHEREAS, Borrower, the Guarantors and the Original Bank
Group entered into a First Amendment to Restated Credit Agreement
dated as of June 23, 1997 (the First Amendment); and
WHEREAS, Borrower, the Guarantors and the Original Bank
Group entered into a Second Amendment to Restated Credit
Agreement dated as of November 18, 1997 (the Second Amendment);
and
WHEREAS, as of Xxxxx 0, 0000, Xxxxxxx and Whitney acquired
interests in the Credit Agreement and the Revolving Commitment
described therein (Paribas and Whitney, together with the
Original Bank Group are hereinafter called the Existing Bank
Group); and
WHEREAS, Borrower, the Guarantors, and the Existing Bank
Group entered into a Third Amendment to Restated Credit
Agreement dated as of April 9, 1998; and
WHEREAS, as of the date hereof, Xxxxx Fargo is acquiring an
interest in the Credit Agreement and the Revolving Commitment;
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:
(1) 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)$250,000,000 from the
Fourth Amendment Effective Date through the
dates of consummation of a private placement
of debt by Borrower in an amount of up to
$150,000,000, which private placement shall
have been approved by all Banks;
(ii) $200,000,000 from the date of
consummation of such private placement
through June 30, 2000; (iii) $150,000,000
from July 1, 2000 through June 30, 2001; and
$100,000,000 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.
(2) 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 17%
ABN 16%
Hibernia 16%
CL 15%
Fuji 12%
Whitney 12%
Paribas 6%
Xxxxx Fargo 6%
2. Section 3 of the Credit Agreement is hereby amended in the
following respects:
(1) Subsection 3(a) is hereby amended by deleting the reference
therein to $200,000,000 and asserting in lieu thereof
$250,000,000.
(2) Subsection 3(b) is hereby amended by deleting the first
sentence thereof in its entirety and substituting the following
sentence in lieu thereof:
From and after the date of the Fourth
Amendment to Restated Credit Agreement, there
shall be outstanding eight notes: (i) one
Revolving Note in the aggregate face amount
of $42,500,000 payable to the order of Bank
One, (ii) one Revolving Note in the aggregate
face amount of $40,000,000 payable to ABN,
(iii) one Revolving Note in the aggregate
face amount of $37,500,000 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
$40,000,000 payable to the order of Hibernia,
(vi) one Revolving Note in the aggregate face
amount of $15,000,000 payable to the order of
Paribas, (vii) one Revolving Note in the
aggregate face amount of $30,000,000 payable
to the order of Whitney and (viii) one
Revolving Note in the aggregate amount of
$15,000,000 payable to the order of Xxxxx
Fargo.
3. Section 12(d) of the Credit Agreement is hereby amended by
deleting the reference therein to 50% and substituting 55% in
lieu thereof.
4. Exhibit C to the Credit Agreement is hereby deleted and
replaced by the new Exhibit C in the form attached hereto.
5. This Fourth Amendment shall be effective as of the date
first above written, but only upon satisfaction of the conditions
precedent set forth in paragraph 7 hereof (the Fourth Amendment
Effective Date).
6. The obligation of the Banks hereunder shall be subject to
the following conditions precedent:
(1) Borrowers 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;
(2) 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;
(3) Legal Opinion. The Agent shall have received from
Borrowers and Guarantors legal counsel a favorable legal
opinion in form and substance reasonably satisfactory to Agent
and its counsel;
(4) Corporate Resolutions. The Agent shall have received
appropriate certified corporate resolutions of Borrower and each
Guarantor;
(5) Good Standing. The Agent shall have received evidence of
existence and good standing for Borrower and each Guarantor;
(6) 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;
(7) Payment of Fees. The Agent shall have received payment in
full of all fees due on the date of execution of this Agreement;
(8) 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);
(9) 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;
(10) 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
(11) 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.
7. 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.
8. Unless otherwise defined herein, all defined terms used
herein shall have the same meaning ascribed to such terms in the
Credit Agreement.
9. 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.
10. The Guarantors are executing this Agreement only to indicate
their consent to the execution hereof by the Borrower.
11. WRITTEN CREDIT AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED
BY THE FIRST AMENDMENT, THE SECOND AMENDMENT, THE THIRD AMENDMENT
AND THIS FOURTH 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 Fourth
Amendment to Restated Credit Agreement to be duly executed as of
the date first above written.
BORROWER:
GLOBAL INDUSTRIES, LTD.
a Louisiana corporation
By:
Name: Xxxxxxx X. XxXxxx
Title: 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:
Name: Xxxxxxx X. XxXxxx
Title: 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: Phillippe Soustra
Title: Senior Vice President
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By:
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Manager
HIBERNIA NATIONAL BANK
By:
Xxxxx Xxxx, Vice President
PARIBAS
By:
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WHITNEY NATIONAL BANK
By:
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK NATIONAL
ASSOCIATION
By:
Name: Xxxxxx X. Xxxxxxx
Title:Assistant 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 September 16, 1998 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 or have become 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 $250,000,000.00, 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 TWO HUNDRED
FIFTY MILLION AND NO/100 DOLLARS (U.S. $250,000.000.00), 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 TWO HUNDRED FIFTY MILLION AND NO/100 DOLLARS (U.S.
$250,000,000.00) (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;
(D) Settle 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 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 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:
Name:
Title:
ACCEPTED:
BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION
as Agent for itself
and the Lenders
By: DATE: _________, 1998
Xxxx X. Xxxxxx, Vice President
