TRUST INDENTURE
Relating to United States Government Guaranteed
Export Ship Financing Obligations, 2000 Series
Between
GLOBAL INDUSTRIES, LTD.,
as Shipowner
And
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee
Dated February 23, 2000
TRUST INDENTURE
SPECIAL PROVISIONS
THIS TRUST INDENTURE, dated February 23, 2000 (the "Indenture"),
between (i) GLOBAL INDUSTRIES, LTD., a Louisiana corporation (the
"Shipowner"), and (ii) Norwest Bank Minnesota, National Association,
a national banking association (the "Indenture Trustee").
RECITALS
A. WHEREAS, pursuant to the understandings set forth in the
Security Agreement, the Shipowner has authorized the issuance of certain
Obligations pursuant to the terms and conditions of this Indenture in an
aggregate principal amount not to exceed $99,000,000 to finance the cost
of reconditioning the Vessel; and
B. WHEREAS, the Secretary, on behalf of the United States,
has agreed to Guarantee the payment of the unpaid interest to the date of
such payment on, and the unpaid balance of the principal of, such Obligations
under the provisions of Title XI of the Act, and has authorized the Indenture
Trustee to cause the Guarantees to be imprinted on the Obligations pursuant
to the Authorization Agreement.
NOW THEREFORE, in consideration of the premises, of the mutual
covenants herein contained, of the purchase of the Obligations by the Holders
thereof, and of other good and valuable consideration, the receipt and
adequacy of which the parties hereby acknowledge, and for the equal and
proportionate benefit of all the present and future Holders of the
Obligations, the parties hereto agree as follows:
1. Incorporation of General Provisions
This Indenture shall consist of two parts: the Special Provisions and
the General Provisions attached hereto as Exhibit 1, and they shall be
treated as one instrument. In the event of a conflict, the terms of the
Special Provisions shall prevail.
2. The Obligations.
(a) The initial series of Obligations issued hereunder shall be
designated "United States Government Guaranteed Export Ship Financing
Obligations, 2000 Series," and shall be in the form of Exhibit 2 to this
Indenture. The aggregate principal amount of Obligations which may be issued
under this Indenture shall not exceed $99,000,000.
(b) The Obligations shall be in the denominations of United States
$1,000 or any integral multiple thereof.
(c) The Shipowner shall at all times cause to be maintained in the
City of Minneapolis, State of Minnesota, an office or agency for the purposes
specified in Section 5.03 of this Indenture.
(d) The Indenture Trustee shall at all times have its Corporate
Trust Office in the City of Minneapolis, State of Minnesota.
3. Additions, Deletions, and Amendments to Exhibit 1.
(a) Concerning Registered and Beneficial Ownership of the Bonds;
Legends.
(i) The Bonds shall be issued initially in the form of one
permanent global Bond in definitive, fully registered form without
interest coupons (the "Global Bond"). Except as provided in
paragraph (iii) below, owners of beneficial interests in the Global
Bond ("Obligation Owners") will not be entitled to receive separate
certificated Bonds("Definitive Bonds") and will not be considered
the Holders thereof. The Global Bond shall be deposited with the
Depository Trust Company ("DTC") or the Indenture Trustee, as
custodian for DTC, registered in the name of DTC or a nominee of DTC,
and duly executed by the Shipowner and authenticated by the Indenture
Trustee as provided in the Indenture, and DTC or such nominee of DTC
shall be the sole Holder for purposes of this Indenture until the
Global Bond becomes exchangeable for Definitive Bonds in accordance
with paragraph (iii)(2) below. The Global Bond shall bear such legend
as DTC may require.
(ii) Members of, or participants in, DTC shall have no rights under
the Indenture with respect to the Global Bond held on their behalf by
DTC or by the Indenture Trustee as the custodian of DTC or under such
Global Bond, and DTC may be treated by the Shipowner, the Indenture
Trustee and any agent of the Shipowner or the Indenture Trustee as the
absolute owner of such Global Bond for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Shipowner, the Indenture Trustee or any agent of the Shipowner or the
Indenture Trustee from giving effect to any written certification,
proxy or other authorization furnished by DTC or impair, as between
DTC and its members and participants, the operation of customary
practices of DTC governing the exercise of the rights of an Obligation
Owner in the Global Bond.
(iii)(1)The transfer and exchange of the Global Bond or beneficial
interests therein shall be effected through DTC or the Indenture
Trustee, as the custodian for DTC, in accordance with the Indenture
and the procedures of DTC therefor.
(2) The Global Bond shall be exchangeable for Definitive Bonds
registered in the names of Obligation Owners only if any of the
following events shall have occurred: (A) DTC notifies the Shipowner
that it is unwilling or unable to continue as depositary for such
Global Bond or DTC ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, at a time when DTC
is required to be so registered in order to act as depositary, and
a successor depositary is not appointed by the Shipowner within 90
days thereafter, (B) the Shipowner or the Indenture Trustee elects to
terminate DTC's service or the book entry system, (C) the Secretary
assumes the Bonds, or (D) the Secretary instructs the Shipowner and
the Indenture Trustee to terminate the Letter of Representations
relating to the Bonds between the Shipowner and the Indenture Trustee
and accepted by DTC.
(3) Any Global Bond that is exchangeable for Definitive Bonds
registered in the name of the Obligation Owners pursuant to this
paragraph (iii) shall be surrendered by DTC to the Indenture Trustee
to be so exchanged, without charge, and the Shipowner shall execute
and the Indenture Trustee shall authenticate and deliver, upon such
exchange of such Global Bond, an equal aggregate principal amount of
Definitive Bonds of authorized denominations. Definitive Bonds issued
in exchange for a beneficial interest in a Global Bond pursuant hereto
shall be registered in such names and in such authorized denominations
as DTC, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Indenture Trustee in
writing. The Indenture Trustee shall deliver such Definitive Bonds
to the Obligation Owners in whose names such Bonds are so registered
in accordance with the instructions of DTC.
(4) The registered Holder of a Global Bond may grant proxies and
otherwise authorize any Obligation Owner, including the DTC's members
and participants and Obligation Owners that may hold interests through
such members and participants, to take any action which a Holder is
entitled to take under the Indenture or the Obligations.
(5) In the event of the occurrence of any of the events specified
in paragraph (iii)(2), the Shipowner will promptly make available to
the Indenture Trustee a reasonable supply of Definitive Bonds.
(6) Notwithstanding any other provision of the Indenture, the
Global Bond may not be transferred except as a whole by DTC for such
Global Bond to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC.
(iv) At such time as all beneficial interests in the Global Bond
have either been exchanged for Definitive Bonds, redeemed, repurchased
or canceled, such Global Bond shall be returned to DTC for cancellation
or retained and canceled by the Indenture Trustee.
(v) The Indenture Trustee shall have no responsibility or
obligation to any Obligation Owner, a member of, or a participant in
DTC with respect to the accuracy of the records of DTC or its nominee
or of any participant or member thereof, with respect to any ownership
interest in the Obligations or with respect to the delivery to any
participant, member, or other Obligation Owner (other than DTC) of any
notice (including any notice of redemption) or the payment of any
amount or delivery of any Obligations (or other security or property)
under or with respect to such Obligations. All notices and
communications to be given to the Holders and all payments to be made
to Holders in respect of the Obligations shall be given or made only
to or upon the order of the registered Holders (which shall be DTC or
its nominee in the case of the Global Bond). The rights of Obligations
Owners shall be exercised only through DTC subject to the applicable
rules and procedures of DTC. The Indenture Trustee may rely and shall
be fully protected in relying upon information furnished by DTC with
respect to its members, participants and any Obligation Owner.
(b) Concerning Section 2.06. Section 2.06 of Exhibit 1 hereto is
hereby amended by inserting the word "manually" after the word "executed" in
the third line thereof.
(c) Concerning Section 2.07. Section 2.07(c) of Exhibit 1 is
hereby amended by deleting the words "The Shipowner shall not be required to
register transfers or make exchanges" in the first line thereof and inserting
in lieu thereof the words "Neither the Shipowner nor the Indenture Trustee
shall be required to register transfers or make exchanges".
(d) Concerning Section 3.02.
(i) Section 3.02(b) of Exhibit 1 hereto is hereby amended
by deleting the words "subsection (c)" in the fourth line
thereof and inserting in lieu thereof the words "Section 3.03."
(ii) Section 3.02(c) of Exhibit 1 hereto is hereby deleted
in its entirety.
(e) Concerning Section 3.03. Section 3.03 of Exhibit 1 hereto is
hereby amended as follows:
(i) by deleting Section 3.03 in its entirety and
substituting the following therefor:
"(a) Optional Redemptions of Obligations at a Premium. At
its option, the Shipowner may redeem the Obligations, in whole
or in part, at any time, at a redemption price equal to 100%
of the principal amount being redeemed plus (i) interest
accrued thereon to the date fixed for redemption and (ii) the
Make Whole Premium. The Shipowner may redeem such Obligations
on a date at least 40 days but not more than 60 days from the
Indenture Trustee's receipt of the Request to make such an
optional redemption and specifying the Redemption Date and the
principal amount of Obligations which the Shipowner intends to
redeem."
(ii) by adding a new subsection (b) as follows:
"(b) Calculation of Make Whole Premium. The Indenture
Trustee may retain the services of a consultant, the cost of
which shall be borne by the Shipowner, to perform its
obligations with respect to calculation of the Make Whole
Premium as defined and described in the Obligations. Such
consultant shall be a U.S. nationally recognized accounting
firm or investment banking firm with a capitalization of at
least $50,000,000 who regularly engages in bond underwritings
or placements. The Request of the Shipowner referred to in
Section 3.03(a) shall contain the identity of a proposed
consultant, and the Shipowner shall certify that such
consultant satisfies the requirements of this Section 3.03(b),
and shall also contain sufficient information (such as names
and phone numbers) to permit the Indenture Trustee to contact
and arrange for retention of the consultant. The Indenture
Trustee may use the consultant proposed by the Shipowner or
may, in its discretion, select another qualifying consultant.
The consultant shall certify the calculations and the result
thereof to the Indenture Trustee and the Shipowner in writing."
(f) Concerning Section 6.09. Section 6.09 is hereby amended by
adding at the end thereof a new subsection (c) as follows:
"(c) In the event that the Global Bond is registered in the
name of The Depository Trust Company ("DTC"), Cede & Co.
("Cede") or another nominee of DTC or Cede pursuant to the
Letter of Representations relating to the Obligations between
the Shipowner and the Indenture Trustee and accepted by DTC
(the "LOR"), and if the Secretary (i) assumes the Obligations
pursuant to Section 6.09(a) hereof or (ii) instructs the
Shipowner and the Indenture Trustee to terminate the LOR, then
the Shipowner and the Indenture Trustee, immediately upon
receipt of notice of such assumption or upon receipt of notice
of such termination, as applicable, shall terminate or cause
the termination of the LOR in accordance with Section 15
thereof. The Indenture Trustee shall, within 30 days from
receipt of notice of such assumption or termination from the
Secretary, also instruct DTC to notify its direct and indirect
participants of the need to re-register the Obligations in the
names of the Obligation Owners. Upon surrender by DTC of the
Global Bond issued in its name, the name of Cede or another
nominee, the Shipowner shall issue at its sole expense, and the
Indenture Trustee shall authenticate, Definitive Bonds in the
names provided to the Indenture Trustee by DTC."
(g) Concerning Section 10.04. The percentage "60%" in the
introductory paragraph of Section 10.04 is hereby deleted and the
percentage "51%" is substituted in its place.
4. Miscellaneous.
(a) Concerning Notices. Subject to the provisions of Section
13.01 of this Indenture, any notice, request, demand, direction,
consent, waiver, approval or other communication to be given to a
party hereto or the Secretary, shall be deemed to have been
sufficiently given or made when addressed to:
The Indenture Trustee as: Norwest Bank Minnesota, National Association
Corporate Trust Services
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The Shipowner as: Global Industries, Ltd.
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The Secretary as: SECRETARY OF TRANSPORTATION
c/o Maritime Administrator
Department of Transportation
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(b) Concerning Applicable Law. This Indenture and each Obligation
shall be governed by the federal laws of the United State of America,
but to the extent that they are inapplicable, by the laws of the State
of Louisiana.
(c) Jurisdiction and Consent to Suit. Any proceeding to enforce
this Agreement may be brought in the Federal courts of the United
States of America located in the State of Louisiana of the United
States of America. The Shipowner and the Trustee hereby irrevocably
waive any present or future objection to such venue, and for each of
itself and in respect of any of their respective properties hereby
irrevocably consents and submits unconditionally to the exclusive
jurisdiction of those courts. The Shipowner further irrevocably
waives any claim that any such court is not a convenient forum for
any such proceeding. The Shipowner further agrees that final judgment
against it in any such action or proceeding arising out of or relating
to this Indenture shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States of America by suit on
the judgment, a certified or exemplified copy of which shall be
conclusive evidence of that fact and of the judgment.
(d) Execution of Counterparts. This Indenture may be executed in
any number of counterparts. All such counterparts shall be deemed to
be originals, and shall constitute but one and the same instrument.
IN WITNESS WHEREOF, this Indenture has been duly executed by the
parties hereto as of the day and year first above written.
GLOBAL INDUSTRIES, LTD.
(SEAL) By
Its
ATTEST
By
Its
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
(SEAL) By
Its
