UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission File Number 0-22303
GULF ISLAND FABRICATION, INC.
(Exact Name of Registrant as Specified in its Charter)
LOUISIANA 72-1147390
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
583 THOMPSON ROAD,
HOUMA, LOUISIANA 70363
(Address of Principal Executive Offices) (Zip Code)
(504) 872-2100
Registrant's Telephone Number, Including Area Code
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes No X
As of May 14, 1997, there were 3,500,000 shares of common stock, no par
value, outstanding.
GULF ISLAND FABRICATION, INC.
INDEX
Page
Part I Financial Information
Item 1. Financial Statements
Consolidated Balance Sheet
December 31, 1996 and March 31,1997 1
Consolidated Statement of Income
Three Months Ended March 31,1996 and March 31, 1997 2
Consolidated Statement of Changes in Shareholders' Equity
Three Months Ended March 31, 1997 3
Consolidated Statement of Cash Flows
Three Months Ended March 31, 1996 and March 31, 1997 4
Notes to the Consolidated Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
Part II. Other Information
Item 4. Submission of Matters to a Vote of Security Holders 12
Item 5. Other Information 12
Item 6. Exhibits and Reports on Form 8-K 12
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
GULF ISLAND FABRICATION, INC.
CONSOLIDATED BALANCE SHEET
(in thousands, except share data)
March 31,
---------------------
Pro Forma
(Note 3)
December 31, 1997 1997
1996 (unaudited) (unaudited)
------------ ----------- ----------
ASSETS
Current assets:
Cash $ 1,357 $ 410 $ 410
Contracts receivable, net 11,674 22,608 22,608
Contract retainage 1,806 641 641
Costs and estimated earnings in excess
of billings on uncompleted contracts 1,306 1,608 1,608
Prepaid expenses 500 705 705
Inventory 1,113 1,562 1,562
------------ ------------ ----------
Total current assets 17,756 27,534 27,534
Property, plant and equipment, net 17,735 25,851 25,851
Other assets 418 562 562
------------ ------------ ----------
$ 35,909 $ 53,947 $ 53,947
============ ============ ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,081 $ 4,473 $ 4,473
Billings in excess of costs and estimated
earnings on uncompleted contracts 2,205 1,356 1,356
Accrued employee costs 1,903 1,921 1,921
Accrued expenses 1,036 4,868 4,868
Income taxes payable - 84 84
Current portion of notes payable 530 548 548
Distribution to shareholders - - 14,000
------------ ------------ ----------
Total current liabilities 6,755 13,250 27,250
Deferred income taxes (Note 3) - - 1,243
Notes payable, less current portion 5,657 16,214 16,214
------------ ------------ ----------
Total liabilities 12,412 29,464 44,707
------------ ------------ ----------
Commitments and contingent liabilities (Note 6)
Shareholders' equity (Note 5):
Preferred stock, no par value,
5,000,000 sharesauthorized,
no shares issued and outstanding - - -
Common stock, no par value,
20,000,000 shares authorized,
3,500,000 shares issued and
outstanding 1,000 1,000 1,000
Additional paid-in capital 6,670 6,670 6,670
Retained earnings 15,827 16,813 1,570
------------ ------------ -----------
Total shareholders' equity 23,497 24,483 9,240
------------ ------------ -----------
$ 35,909 $ 53,947 $ 53,947
============ ============ ===========
The accompanying notes are an integral part of these financial statements.
CONSOLIDATED STATEMENT OF INCOME (UNAUDITED)
(in thousands, except per share data)
Three months ended March 31,
----------------------------
1996 1997
----------- ----------
Revenue $ 19,504 $ 30,224
Costs of revenue 18,158 25,359
----------- ----------
Gross profit 1,346 4,865
General and administrative expenses 512 1,002
----------- ----------
Operating income 834 3,863
Interest expense, net 52 236
----------- ----------
Net income $ 782 $ 3,627
=========== ==========
Pro forma data (Note 3):
Net income, reported above $ 782 $ 3,627
Pro forma provision for income taxes
related to operations as S Corporation 297 1,379
----------- ----------
Pro forma net income $ 485 $ 2,248
=========== ==========
Pro forma per share data (Note 4):
Pro forma net income per share
(using 3,927,000 shares) $ .12 $ .57
=========== ==========
The accompanying notes are an integral part of these financial statements.
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
(UNAUDITED)
(in thousands, except share data)
Additional
Common Stock Paid-in Retained
Shares Amount Capital Earnings Total
--------- -------- ------- --------- -------
Balance at
December 31, 1996 3,500,000 $ 1,000 $ 6,670 $ 15,827 $ 23,497
Dividends paid - - - (2,641) (2,641)
Net income - - - 3,627 3,627
--------- -------- ------- --------- -------
Balance at
March 31, 1997 3,500,000 $ 1,000 $ 6,670 $ 16,813 $ 24,483
========= ======== ======= ======== ========
The accompanying notes are an integral part of these financial statements.
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
(in thousands)
Three months ended March 31,
---------------------------------
1996 1997
-------------- ---------------
Cash flows from operating activities:
Cash received from customers $ 10,047 $ 23,862
Cash paid to suppliers and employees (9,900) (20,578)
Interest paid (71) (236)
-------------- ---------------
Net cash provided by operating activities 76 3,048
-------------- ---------------
Cash flows from investing activities:
Capital expenditures, net (1,777) (5,664)
Payment for purchase of Dolphin Services,
net of cash acquired - (5,803)
Proceeds from cash surrender value of
insurance policy - 253
Net cash used in investing activities (1,777) (11,214)
Cash flows from financing activities:
Proceeds from issuance of notes payable 325 10,048
Principal payments on notes payable - (45)
Dividends paid (597) (2,641)
Payment of costs associated with
initial public offering (143)
-------------- ---------------
Net cash provided by (used in)
financing activities (272) 7,219
-------------- ---------------
Net decrease in cash (1,973) (947)
Cash at beginning of period 2,084 1,357
-------------- ---------------
Cash at end of period $ 111 $ 410
============== ===============
Reconciliation of net income to
net cash provided by operating activities:
Net income $ 782 $ 3,627
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 344 647
Increase in contracts receivable (9,456) (6,138)
(Increase) decrease in contract retainage (86) 1,359
(Increase) decrease in costs and
estimated earnings in excess of billings
on uncompleted contracts 319 (247)
Decrease in prepaid expenses
and other assets 119 524
Increase in accounts payable
and accrued expenses 3,854 4,981
Decrease in other liabilities - (369)
Increase (decrease) in billings in excess
of costs and estimated earnings on
uncompleted contracts 4,200 (1,336)
Net cash provided by operating activities $ 76 $ 3,048
============== ===============
The accompanying notes are an integral part of these financial statements.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - ORGANIZATION AND SIGNIFICANT ACCOUNTING PRINCIPLES
The consolidated financial statements include the accounts of
Gulf Island Fabrication, Inc. and its wholly-owned subsidies
(the "Company"). The Company, located in Houma, Louisiana, is
engaged in the fabrication and refurbishment of offshore oil
and gas platforms for oil and gas industry companies. The
Company's principal markets are concentrated in the offshore
regions of the coast of the Gulf of Mexico.
On January 2, 1997, the Company acquired all outstanding shares
of Dolphin Services, Inc., Dolphin Steel Sales Inc. and Dolphin
Sales and Rentals Inc. for $5.9 million. The acquired
corporations perform fabrication, sandblasting, painting and
construction for offshore oil and gas platforms in inland
and offshore regions of the coast of the Gulf of Mexico. On
April 30, 1997 Dolphin Steel Sales, Inc. and Dolphin Sales and
Rentals, Inc. merged into Dolphin Services, Inc. The three
corporations collectively are referred to hereinafter as
"Dolphin Services". (See Note 2.)
On February 13, 1997, the Board of Directors approved the
filing of an initial registration statement on Form S-1 with
the Securities and Exchange commission to register and sell 2.3
million shares of common stock. Shortly before the closing of
the offering on April 9, 1997, the Company's current
shareholders elected to terminate its status as an S
Corporation, and the Company has become subject to federal and
state income taxes. (See Note 3.)
The information presented for March 31, 1997 and for the three-
month periods ended March 31, 1996 and 1997, is unaudited. In
the opinion of the Company's management, the accompanying
unaudited financial statements contain all adjustments
(consisting of normal recurring adjustments) which the Company
considers necessary for the fair presentation of the Company's
financial position as of March 31, 1997 and the results of its
operations and its cash flows for the three-month periods
ending March 31, 1996 and 1997.
In the opinion of management, the financial statements included
herein have been prepared in accordance with generally accepted
accounting principles and the instructions to Form 10-Q and
Rule 10-01 of Regulation S-X. Accordingly, certain information
and disclosures normally included in financial statements have
been condensed or omitted. These financial statements should
be read in conjunction with the Company's audited financial
statements for the year ended December 31, 1996, which were
included as part of the Company's Registration Statement on
Form S-1 (Registration No. 333-21863), as declared effective by
the Securities and Exchange Commission on April 3, 1997.
The results of operations for the three months ended March 31,
1997 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1997.
NOTE 2 - ACQUISITION OF DOLPHIN SERVICES
On January 2, 1997, the Company acquired all outstanding shares
of Dolphin Services for $5.9 million which was financed by
borrowings under the Company's line of credit. The acquisition
was accounted for under the purchase method of accounting.
Accordingly, the operations of Dolphin Services are included in
the Company's operations from January 2, 1997. Assuming the
acquisition of Dolphin Services had occurred on January 1,
1996, pro forma revenue and pro forma net income for the three
months ended March 31, 1996 would have been $24.1 million and
$601,000, including a pro forma provision for income taxes
assuming the Company had operated as a C Corporation. Pro
forma net income per share for the three months ended March 31,
1996 would have been $.15, based on average common shares
outstanding of 3,927,000.
NOTE 3 - TERMINATION OF S CORPORATION STATUS
On April 4, 1997, the Company's shareholders elected to
terminate the Company's status as an S Corporation, and the
Company became subject to federal and state income taxes.
Prior to its termination as an S Corporation, the Company
declared a distribution of $14 million to its current
shareholders representing substantially all of the Company's
remaining undistributed S Corporation earnings through March
31, 1997. The S Corporation earnings through April 4, 1997
were an immaterial part of the total distribution.
The pro forma balance sheet of the Company as of March 31, 1997
reflects a deferred income tax liability of $1.2 million
resulting from the assumed termination of the S Corporation
status and an accrual of $14 million for distribution of S
Corporation undistributed tax basis earnings at that date. The
amount of the Company's retained earnings that is not
reclassified represents primarily the C Corporation earnings
prior to the Company's election of subchapter S Corporation
status in 1989. The Company will be required to record the
cumulative effect of the deferred tax liability as a portion of
the provision for income taxes for continuing operations in
April 1997, upon termination of S Corporation status.
NOTE 4 - NET INCOME PER SHARE
Pro forma net income per share consists of the Company's
historical net income as an S Corporation, adjusted for income
taxes that would have been recorded had the Company operated as
a C Corporation. This amount is divided by the weighted
average shares of common stock outstanding after giving
retroactive effect to the stock split described in Note 5
(3,500,000 shares), and increased to reflect the assumed
issuance of sufficient additional shares to pay the
distributions to shareholders in excess of historical net
income for the year ended December 31, 1996 (427,000 shares).
All such additional shares are assumed to be issued at the
offering price of $15 per share, net of offering expenses (see
Note 5).
The Company used proceeds received from its public offering
(Notes 1 and 5) to repay all outstanding debt at March 31,
1997. Accordingly, the Company has calculated a pro forma
supplemental net income per share of $.50 for the three months
ended March 31, 1997. The pro forma supplemental net income
per share is calculated by (a) dividing the pro forma net
income, increased by the interest expense, net of tax, on the
debt outstanding at March 31, 1997, by (b) the 3,927,000
average shares outstanding, as increased to reflect the assumed
issuance of sufficient additional shares to retire the debt
calculated based on the date of issue of the debt (814,543
shares). All such additional shares are assumed to be issue at
the offering price of $15 per share, net of offering expenses.
NOTE 5 - SHAREHOLDERS' EQUITY
On February 14, 1997, the shareholders took the following
action:
(a) Authorized the issuance of 2.5 additional shares of no par
value common stock for each of the then outstanding 1
million shares, which resulted in 3.5 million total
outstanding shares. This recapitalization is reflected
retroactively in the accompanying financial statements and
per share calculations.
(b) Increased the authorized common shares from 10 million
shares to 20 million shares.
(c) Authorized 5 million shares of no par value preferred
stock. There are no preferred shares issued or outstanding.
On April 3, 1997, the Company's Registration Statement on Form
S-1 (Registration No. 333-21863) was declared effective by the
Securities and Exchange Commission. On April 9, 1997, the
Company sold 2.3 million common shares pursuant to the
registration statement, increasing the total shares outstanding
to 5.8 million. The company received net proceeds from the
sale of $31.3 million.
NOTE 6 - COMMITMENTS AND CONTINGENT LIABILITIES
The Company is one of four defendants in a lawsuit in which the
plaintiff claims that the Company improperly installed certain
attachments to a jacket that it had fabricated for the
plaintiff. The plaintiff, which has recovered most of its out-
of-pocket losses from its insurer, seeks to recover the
remainder of its claimed out-of-pocket losses (approximately $1
million) and approximately $63 million for punitive damages and
for economic losses which it alleges resulted from the delay in
oil and gas production that was caused by these events. The
Company is vigorously contesting the plaintiff's claims and,
based on the Company's analysis of those claims, the Company's
defenses thereto, and the Court's rulings received to date, the
Company believes that its liability for such claims, if any,
will not be material to its financial position. In view of
the uncertainties inherent in litigation, however, no assurance
can be given as to the ultimate outcome of such claims.
The Company is subject to claims arising through the normal
conduct of its business. While the ultimate outcome of such
claims cannot be determined, management does not expect that
these matters will have a material adverse effect on the
financial position or results of operations of the Company.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
This discussion and analysis of financial condition and
results of operations should be read in conjunction with the
unaudited consolidated financial statements and the related
disclosures included elsewhere herein and Management's
Discussion and Analysis of Financial Condition and Results of
Operations included as part of the Company's Registration
Statement on Form S-1 (Registration No. 333-21863), as declared
effective by the Securities and Exchange Commission on April 3,
1997.
Results of Operations
On January 2, 1997, the Company acquired all the
outstanding stock of Dolphin Services , Inc. and its two
affiliated corporations (collectively, "Dolphin Services"). As
used hereinafter, unless the context requires otherwise, the
term "Company" refers to the Company and Dolphin Services on a
consolidated basis, the term "Parent" refers to the Company
only and the term "Subsidiary" refers to Dolphin Services only.
The Statement of Income included in the financial statements
reported herein presents the results of operations of the
Company for the first quarter ended March 31, 1997, compared to
the results of operations of the Parent for the first quarter
ended March 31, 1996.
The following table sets forth the results of operations
of the Parent, the Subsidiary and the Company for the first
quarter of 1997 and the results of operations of the Parent for
the first quarter of 1996. The Company converted to C
corporation status on April 4, 1997. Pro forma provision for
income taxes and pro forma net income give effect to federal
and state income taxes as if all entities presented had been
taxed as C corporations during the entire first quarters of
both 1996 and 1997. (See Note 3 to the Financial Statements
appearing elsewhere in this report.).
<TABLE>
<CAPTION>
First Quarter
First Quarter Ended March 31, Ended
1997 March 31,1996
--------------------------------- ---------------
(Unaudited)
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
Parent Subsidiary Company Parent
--------- ---------- -------- ------------
Revenue $ 22,589 $ 7,635 $ 30,224 $ 19,504
Cost of revenue (excluding depreciation) 18,232 6,517 24,749 17,827
Depreciation 495 115 610 331
--------- ---------- -------- ------------
Gross Profit 3,862 1,003 4,865 1,346
General and administrative expenses 708 294 1,002 512
--------- ---------- -------- ------------
Operating Income 3,154 709 3,863 834
Interest expense, net 226 10 236 52
Net income $ 2,928 $ 699 $ 3,627 $ 782
Pro forma provision for income taxes 1,113 266 1,379 297
--------- ---------- -------- ------------
Pro forma net income $ 1,815 $ 433 $ 2,248 $ 485
========= ========= ======== ============
Pro forma net income per share $ 0.57 $ 0.12
======== ============
Average common shares 3,927 3,927
</TABLE>
During the first quarter of 1997, the high activity levels
in the oil industry had an increasing effect in the fabrication
sector. This was the primary cause of the $3.0 million
increase in Parent's revenues during the first quarter of 1997,
as the volume of direct labor hours applied to contracts
increased 18% to 294,000 hours for the first quarter of 1997
from 249,000 hours for the first quarter of 1996. The same high
activity levels caused upward pressure on pricing and thus
profit margins for fabrication work, as Parent's gross profit
increased by $2.5 million and gross profit margins increased to
17.1% in the first quarter of 1997 from 6.9% in the same
quarter of 1996. Also contributing to higher margins was the
fact that, during the first quarter of 1997 the ratio of
revenue derived from the direct labor hours worked (on which
the Company recognizes substantial profit margins) as compared
to revenue derived from the materials component of contracts
(on which the Company recognizes relatively low profit margins)
was higher than the ratio of revenue from direct labor hours
worked to revenue from materials during the first quarter of
1996. The Company's on-going purchase of labor-saving
equipment and implementation of labor-saving procedures also
contributed to higher margins realized per direct labor hour
worked.
Depreciation expense for the Company increased $279,000 to
$610,000 for the first quarter of 1997 compared to $331,000 for
the Parent for the first quarter of 1996. The on-going
purchase of equipment and facilities expansion and improvements
at the Parent contributed $164,000 of this increase, and the
remaining $115,000 increase was generated by the newly acquired
Subsidiary.
The Company's selling, general and administrative (SG&A)
expenses were $1.0 million for the first quarter of 1997
compared to $512,000 for the Parent for the first quarter of
1996. This increase of $490,000 is made up of the following:
(a) $294,000 is due to the additional SG&A costs of the
Subsidiary (b) $100,000 is due to a higher accrual of employee
incentives at the Parent company which resulted from increased
profits for the first quarter of 1997, and (c) $96,000 is due
to the additional SG&A costs associated with increased
production levels and the reporting requirements of a public
company.
The Company's interest expense increased to $236,000 in
1997 from $52,000 for the Parent in 1996 due to increased
borrowings under the Company's bank credit facility in 1997,
resulting from the purchase of Dolphin Services for $5.9
million in addition to equipment purchases and facility
improvements of $5.7 million in 1997.
As a result of the termination of the Company's S
corporation status, the Company will be required to record the
cumulative effect of the deferred tax liability of
approximately $1.3 million as a portion of the provision for
income taxes for continuing operations in the second quarter of
1997. This will be reflected both on the Company's balance
sheet and on the Company's income statement for the second
quarter of 1997. On April 9, 1997, the Company completed its
initial public offering (the "Offering"), in which 2.3 million
shares were issued. The common shares and equivalent shares
outstanding after the Offering were approximately 5.9 million,
including 100,000 shares available under the Company's Long-
Term Incentive Plan. The additional shares outstanding will be
reflected in earnings per share calculations to be reported by
the Company in the future.
Liquidity and Capital Resources
The proceeds of the Offering received by the Company on
April 9, 1997 were $31.3 million net of underwriting discounts
and other costs of $3.2 million. Of the proceeds, the Company
used $31.1 million to repay all of the indebtedness outstanding
under the Company's bank credit facility. The balance of the
proceeds was used by the Company as additional working capital.
Historically, the Company has funded its business
activities through funds generated from operations and
borrowings under its bank credit facility. Net cash provided
by operations was $3.0 million for the quarter ended March 31,
1997, primarily attributable to cash received from customers
related to increased sales. Net cash used in investing
activities of $11.2 million was primarily due to capital
expenditures and the purchase of Dolphin Services. Net cash
provided by financing activities of $7.2 million was due to
borrowings under the Company's line of credit to fund the
investing activities, offset by dividends paid to shareholders.
Historically, the Company's capital requirements have been
primarily for improvements to its production facilities and for
equipment designed to increase the capacity of its facilities
and the productivity of its labor force. During the quarter
ended March 31, 1997, the Company had capital expenditures of
approximately $5.7 million. Of that amount, $4.3 million was
for the purchase of two new Manitowoc Model M250 cranes,
$344,000 for a used American Model 5300 crane, $625,000 for the
installation of skidways, and $395,000 for various fabrication
equipment.
At March 31, 1997, the Company had approximately $16.8
million of outstanding indebtedness, including $16.5 million
under its bank credit facility. After March 31, 1997 and prior
to the completion of the Offering, the Company borrowed an
additional $14.0 million under the bank credit facility to fund
the remainder of the distributions made to shareholders prior
to termination of the Company's S corporation status.
The Company's bank credit facility currently provides for
a revolving line of credit (the "Revolver") of up to $20.0
million which bears interest equal to, at the Company's option,
the prime lending rate established by Citibank, N.A. or LIBOR
plus 1 and 1/2%. The Revolver matures December 31, 1999 and is
secured by a mortgage on the Company's real estate, equipment
and fixtures, and by the stock of Dolphin Services. As
additional security the Company has caused Dolphin Services to
guarantee the Company's obligations under the Revolver. After
completion of the offering, the Company had $20.0 million
available under the Revolver.
At March 31, 1997 the Company's bank credit facility also
provided for a non-revolving facility of $15.0 million.
Payment of this non-revolving facility on April 9, 1997 as a
use of proceeds of the offering effectively terminated this
portion of the loan package, leaving only the $20.0 million
Revolver in place. The weighted average interest rate on the
indebtedness as of March 31, 1997 was 8.0%.
Capital expenditures for the remaining three quarters of
1997 are estimated to be approximately $10.5 million, including
$4.5 million for the purchase of three new Manitowoc Model 888
crawler cranes, $1.3 for the main yard fabrication shop
expansion, $800,000 for West Yard expansion and for various
fabrication equipment and facility expansion. Management
believes that the remaining net proceeds of the Offering, its
available funds, cash generated by operating activities and
funds available under the Revolver will be sufficient to fund
these capital expenditures and its working capital needs.
However, the Company may expand its operations through
acquisitions in the future, which may require additional equity
or debt financing.
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
Prior to the effective date of the Company's initial
public offering, the shareholders of the Company took the
following actions on the dates indicated:
(a) On January 31, 1997, acting by consent of the holders
of 87.4% of the outstanding voting shares in lieu of an annual
meeting of shareholders, (i) amended the Company's by-laws to
increase the number of directors authorized therein to seven
and (ii) elected the following as directors of the Company,
each to serve until the annual meeting of shareholders
occurring in the year indicated after his name: Thomas E.
Fairley (1998), Hugh J. Kelly (1998), Gregory J. Cotter (1999),
John P. Laborde (1999), Kerry J. Chauvin (2000), Alden J.
Laborde (2000) and Huey J. Wilson (2000);
(b) On February 13, 1997, acting by consent of the
holders of 91% of the outstanding voting shares in lieu of a
special meeting of shareholders, having voting power with
respect to the action taken, approved adoption by the Board of
Directors of the Company of a Long-Term Incentive Compensation
Plan pursuant to which economic incentives in various forms may
be granted to officers and employees of the Company; and
(c) On various dates between January 31 and February 8,
1997, in lieu of a special meeting of shareholders, by consent
of the holders of 69.0% of the outstanding voting shares in
lieu of a special meeting of shareholders, approved (i)
amendments to the Company's articles of incorporation and other
actions, pursuant to which the number of authorized shares of
capital stock of the Company was increased to 25 million, of
which 20 million shares are common stock and five million
shares are preferred stock and (ii) a 3.5-for-one split of the
outstanding shares of Company common stock.
Because no shares were held of record by nominees, there
were no broker non-votes with respect to any of the matters
described above.
Item 5. Other Information
On April 30, 1997 the Company announced its first quarter,
1997 earnings and related matters. Such matters are described
in the press release attached hereto as Exhibit 99.1.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
10.1 Sixth Amended and Restated Revolving Credit Agreement
among the Company, First National Bank of Commerce
and Whitney National Bank, dated as of May 1, 1997.
99.1 Press release issued by the Company on April 30, 1997
announcing its first quarter, 1997 earnings and
related matters.
(b) The Company filed no reports on Form 8-K during the
quarter for which this report is filed.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
GULF ISLAND FABRICATION,INC.
By: /s/ Joseph P. Gallagher, III
------------------------------
Joseph P. Gallagher, III
Vice President- Finance
(Principal Financial Officer
and Duly Authorized Officer)
Date: May 14, 1997.
SIXTH AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
Among
GULF ISLAND FABRICATION, INC.,
As Borrower,
FIRST NATIONAL BANK OF COMMERCE
AND
WHITNEY NATIONAL BANK,
As Banks,
AND
FIRST NATIONAL BANK OF COMMERCE,
As Agent
Dated effective as of May 1, 1997
TABLE OF CONTENTS
Section 1. Relation to Prior Credit Arrangements............................ 2
1.1 Revolving Credit Facility .........................................3
1.2 Borrowing Procedure Under the Revolving Credit
Facility...........................................................4
1.3 Terms and Conditions Governing Letters of Credit ..................4
Section 2. Notes Evidencing Borrowings ......................................5
2.1 Notes .............................................................5
2.2 No Novation .......................................................5
Section 3. Interest and Fees ................................................6
3.1 Interest -- Revolving Credit Facility .............................6
3.2 Default Rate ......................................................6
3.3 Prime Rate ........................................................6
3.4 Origination Fee ...................................................7
3.5 Method of Calculating Interest and Fees ...........................7
3.6 Interest Rate Options .............................................7
Section 4. Payments, Prepayments, and Reduction or Termination
of the Revolving Credit
Facility..........................................................12
4.1 Method of Payment ................................................12
4.2 Sharing of Payments ..............................................13
4.3 Payments Without Deduction .......................................13
4.4 Reduction of Credit ..............................................14
Section 5. Representations and Warranties of Borrower ......................14
5.1 Corporate Existence ..............................................14
5.2 Authorization; Validity ..........................................14
5.3 No Conflicts .....................................................15
5.4 Financial Statements .............................................15
5.5 Litigation .......................................................15
5.6 Liens ............................................................16
5.7 Subsidiaries .....................................................16
5.8 Purpose ..........................................................16
5.9 Use of Proceeds; Margin Securities ...............................16
5.10 Compliance with ERISA ............................................16
5.11 Consents .........................................................17
5.12 Tax Returns ......................................................17
5.13 Operation of Business ............................................17
5.14 Rights in Properties; Liens ......................................17
5.15 Debt .............................................................17
5.16 Disclosure .......................................................18
5.17 Registered Office; Principal Place of Business;
Location of Collateral............................................18
5.18 Investment Company Act ...........................................19
5.19 Other Agreements .................................................19
5.20 Compliance with Law ..............................................19
5.21 Corporate Name ...................................................20
5.22 Collateral .......................................................21
5.23 Taxpayer I.D. Numbers ............................................21
5.24 Effect of Dolphin Merger .........................................21
Section 6. Borrower's Covenants ............................................21
6.1 Financial Statements .............................................21
6.2 Access ...........................................................23
6.3 Insurance ........................................................23
6.4 Repair ...........................................................23
6.5 Taxes ............................................................24
6.6 Corporate Existence ..............................................24
6.7 Merger ...........................................................24
6.8 Compliance .......................................................25
6.9 Use of Proceeds ..................................................26
6.10 Financial Covenants ..............................................26
6.11 Liens ............................................................27
6.12 Debt .............................................................28
6.13 Shareholder or Employee Loans ....................................28
6.14 Change in Business ...............................................28
6.15 Accounts Receivable ..............................................28
6.16 Compliance with Agreements .......................................29
6.17 Further Assurances ...............................................29
6.18 Disposition of Assets ............................................29
6.19 Change Tax I.D. Number ...........................................29
6.20 Indemnity ........................................................29
6.21 Real Property ....................................................30
Section 7. Conditions Precedent to Extensions of Credit ....................30
7.1 Borrower's Resolutions ...........................................31
7.2 Dolphin Services' Resolutions ....................................31
7.3 Notes ............................................................31
7.5 Incumbency .......................................................31
7.6 Certification ....................................................31
7.7 Opinion ..........................................................32
Section 8. Additional Conditions Precedent to Advances and/or
Letters of Credit......................................................32
8.1 Default ..........................................................32
8.2 Warranties .......................................................32
Section 9. Events of Default ...............................................33
9.1 Payment ..........................................................33
9.2 Other Indebtedness ...............................................33
9.3 Other Default ....................................................33
9.4 Insolvency .......................................................33
9.5 ERISA ............................................................34
9.6 Agreements .......................................................34
9.7 Representation or Warranty .......................................35
9.8 Subsidiary Default ...............................................35
Section 10. Agent ..........................................................36
10.1 Authorization and Action .........................................36
10.2 Agent's Reliance, Etc ............................................36
10.3 First NBC and Affiliates .........................................37
10.4 Bank Credit Decision .............................................38
10.5 Indemnification ..................................................38
10.6 Successor Agent ..................................................39
10.7 Benefits of Section ..............................................39
10.8 Change in Specified Percentage ...................................40
Section 11. General ........................................................40
11.1 Definitions ......................................................40
11.2 Financial Terms ..................................................46
11.3 Delay ............................................................46
11.4 Notices ..........................................................46
11.5 Expenses .........................................................48
11.6 Severability .....................................................48
11.7 Counterparts .....................................................48
11.8 Law ..............................................................48
11.9 Successors .......................................................49
11.10 Amendments ......................................................49
11.11 Entire Agreement ................................................49
11.12 Conflicts .......................................................49
SIXTH AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
THIS SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(the "Agreement"), dated effective as of the 1st day of May,
1997, by and among GULF ISLAND FABRICATION, INC., a Louisiana
corporation ("Borrower") (formerly known as GIFI, Inc.,
successor by merger to Gulf Island Fabrication, Inc., a
Louisiana corporation), WHITNEY NATIONAL BANK, a national
banking association ("Whitney"), FIRST NATIONAL BANK OF
COMMERCE, a national banking association, in its individual
capacity ("First NBC") (each of Whitney and First NBC being
sometimes referred to individually as a "Bank" and collectively
as the "Banks"), and FIRST NATIONAL BANK OF COMMERCE, a
national banking association, in its capacity as agent for
Banks as set forth hereinafter (the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower, Banks and Agent entered into that
certain Fifth Amended and Restated Revolving Credit and Term
Loan Agreement, dated effective as of October 24, 1996 (the
"Credit Agreement") which amended and restated the then
existing credit arrangements among Borrower, Banks and Agent;
WHEREAS, Borrower, Banks and Agent entered into that
certain First Amendment to Fifth Amended and Restated
Revolving Credit and Term Loan Agreement dated effective as of
January 2, 1997 (the "First Amendment"), whereby the then
existing Term Credit Facility (as defined in the Credit
Agreement) was increased by $5,000,000, Borrower was permitted
to acquire Dolphin Services, Inc. ("Dolphin Services"), Dolphin
Steel Sales, Inc. ("Dolphin Steel"), and Dolphin Sales &
Rentals, Inc. ("Dolphin Sales"), and the maturity date of the
then existing Term Credit Facility (as defined in the Credit
Agreement) was extended;
WHEREAS, Borrower, Banks and Agent entered into that
certain Second Amendment to Fifth Amended and Restated
Revolving Credit and Term Loan Agreement dated effective as of
March 18, 1997 (the "Second Amendment") whereby the Revolving
Credit Facility (as defined in the Credit Agreement) was
increased from $12,000,000 to $20,000,000, the maturity of such
Revolving Credit Facility was extended from December 31, 1998
to December 31, 1999, and certain other changes were made to
enable Borrower to complete its contemplated initial public
offering (as amended by the First Amendment and the Second
Amendment, the Credit Agreement shall be referred to as the
"Revised Credit Agreement"); and
WHEREAS, Borrower, Banks and Agent desire to amend and
restate their existing credit arrangements to facilitate
administration of such credit arrangements, to eliminate the
Term Credit Facility which has been paid in full, to modify
certain other credit terms following Borrower's initial public
offering, and to reflect the merger of Dolphin Sales and
Dolphin Steel into Dolphin Services.
NOW, THEREFORE, for and in consideration of the mutual
covenants, agreements and undertakings herein contained,
Borrower, Banks and Agent hereby agree as follows:
Section 1. Relation to Prior Credit Arrangements. Subject
to the terms and conditions hereof, each Bank severally agrees
that Borrower's obligations as evidenced by the Revised Credit
Agreement and the Prior Notes shall be modified and restated in
their entirety on the terms and conditions set forth herein.
To the extent there is any conflict between the Revised Credit
Agreement and this Agreement or the Prior Notes and the Notes,
the provisions of this Agreement and the Notes shall govern.
To the extent this Agreement or the Notes is or are silent on
any matter or provision contained in the Revised Credit
Agreement or the Prior Notes, such matter or provision of the
Revised Credit Agreement or the Prior Notes shall be deemed to
be revoked. Borrower and Banks acknowledge and agree that
(i) the modification and restatement of the Obligations under
the terms and conditions set forth herein do not constitute a
payment, prepayment or novation of the Obligations evidenced by
the Revised Credit Agreement and the Prior Notes and (ii) the
Obligations continue to be secured by the Existing Security
with the original rank and priority thereof.
1.1 Revolving Credit Facility. Banks shall make
available to Borrower a revolving line of credit (the
"Revolving Credit Facility") in the maximum principal amount of
TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00) (as modified
pursuant to Section 4.4 below, the "Revolving Commitment"),
which Revolving Credit Facility may be drawn upon by Borrower
on any Business Day of Banks during the period from the date
hereof until and including December 31, 1999, or such earlier
date as may be fixed by Borrower on at least one (1) Business
Day's telephonic notice to Agent, to be confirmed in writing by
Borrower, in the form of the issuance by Banks on behalf of and
for the account of Borrower of irrevocable stand-by letters of
credit in the form provided for by, and containing such terms
and conditions as are acceptable to Banks and in such amounts
as Borrower may from time to time request (each such letter of
credit, as well as any letters of credit issued pursuant to and
in accordance with the Revised Credit Agreement or any
predecessor agreement which remain outstanding on the date
hereof, being hereinafter referred to individually as a "Letter
of Credit" and collectively as the "Letters of Credit") or in
the form of actual fundings to Borrower by Banks in such
amounts as Borrower may from time to time request (each such
funding, as well as the aggregate amount of the Prior Notes
previously funded by Banks and outstanding on the date hereof,
being hereinafter referred to individually as an "Advance" and
collectively as the "Advances"), so long as (a) the aggregate
principal amount of all Letters of Credit outstanding at any
one time does not exceed the LC Commitment and (b) the
aggregate principal amount of all Letters of Credit and of all
Advances outstanding at any one time does not exceed the
Revolving Commitment. The Revolving Commitment available to
Borrower from time to time under the Revolving Credit Facility
shall be reduced by the aggregate of the face amount of any
outstanding Letters of Credit and of all unpaid Advances made
by Banks to Borrower pursuant to this Agreement and the
remaining amount of the Revolving Commitment shall constitute
the "Unused Commitment". Any draws made under the Letters of
Credit by the beneficiaries thereof shall constitute Advances
as defined in this Agreement. The Unused Commitment available
under the Revolving Credit Facility shall be restored but
simultaneously reduced by the amount of any Advances which are
made to Borrower to reimburse Banks for draws under the Letters
of Credit.
1.2 Borrowing Procedure Under the Revolving Credit
Facility. Agent shall receive at least one (1) Business Day's
prior telephonic notice from Borrower (to be confirmed in
writing by Borrower) of each proposed Letter of Credit and of
each Advance to be issued under the Revolving Credit Facility.
If all conditions precedent to the issuance of any such Letter
of Credit or any such Advance have been met, Agent will,
without any further consent or approval from Banks, or either
one of them, on the date requested make each Letter of Credit
or Advance available to Borrower at Agent's office at 201 St.
Charles Avenue, New Orleans, Louisiana 70170, and each Letter
of Credit or Advance shall be shared equally by Banks.
1.3 Terms and Conditions Governing Letters of Credit.
The terms and conditions governing the issuance of Letters of
Credit by Banks on behalf of and for the account of Borrower
shall be provided for by Agent in its standard form of
Application for Stand-By Letter of Credit, a copy of which is
attached hereto as Exhibit "A", with appropriate insertions and
such additional terms and conditions governing the issuance of
specific Letters of Credit as may be agreed upon by Borrower
and Agent at the time of Borrower's request to Agent for the
issuance thereof. Upon Agent's issuance of a Letter of Credit,
one-half (1/2) of the amount of such Letter of Credit shall
automatically be deemed to have been provided by Whitney, and,
without the necessity of further documentation transferring an
interest in the Letter of Credit to Whitney, Whitney shall
possess a one-half (1/2) interest in all rights and obligations
accruing to and incurred by Agent with respect to such Letter
of Credit. Whitney shall record its one-half (1/2) share of any
draws on the Letter of Credit on the schedule attached to its
Revolving Note as provided in Section 2.1 below.
Section 2. Notes Evidencing Borrowings.
2.1 Notes. The Advances (including, without limitation,
the outstanding indebtedness of Borrower to Banks under the
Prior Notes which, as provided in Section 1.1, shall be deemed
an "Advance" hereunder) shall be evidenced by two (2)
promissory notes of Borrower payable to the order of First NBC
and Whitney, respectively, each in the original principal
amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) and
in the forms set forth as Exhibits "B" and "C" to this
Agreement (each such note, together with any and all renewals,
modifications, extensions, amendments, supplements and/or
substitutions therefor, being sometimes referred to herein
individually as a "Note" and collectively as the "Notes"), with
appropriate insertions, each of which shall be dated the date
hereof and shall be payable in full on December 31, 1999. All
Advances made by Banks to Borrower pursuant to this Agreement
and all payments of principal shall be recorded by Banks on the
schedule attached to each Note, but Banks' failure to record or
to record correctly such Advances shall in no way affect
Borrower's obligation to repay same.
2.2 No Novation. The execution and delivery of the Notes
shall not constitute a payment, prepayment or novation of the
obligations of Borrower heretofore evidenced by the Prior
Notes, but does constitute a renewal and restatement of the
Prior Notes in their entirety.
Section 3. Interest and Fees.
3.1 Interest -- Revolving Credit Facility. In the
absence of an Event of Default, the unpaid principal of the
Notes shall bear interest until paid at the Prime Rate,
adjusted daily, or the LIBO Rate, or some combination thereof,
as specified in Section 3.6 below. Interest prior to maturity
shall be payable quarterly in arrears on the last day of each
March, June, September and December commencing June 30, 1997,
and continuing until maturity. Interest after maturity of the
Notes for any reason whatsoever shall be increased to the Prime
Rate plus three percent (3%) and shall be payable on demand.
Upon the issuance of a Letter of Credit by Agent on behalf of
and for the account of Borrower, a fee of one percent (1%) per
annum on the principal amount of such Letter of Credit shall be
payable by Borrower for the number of days such Letter of
Credit is to remain outstanding. A fee on the Unused
Commitment of three-eighths (3/8) of one percent (1%) per annum
shall be payable by Borrower quarterly in arrears on the last
day of each March, June, September and December commencing June
30, 1997, and continuing until maturity.
3.2 Default Rate. If an Event of Default shall occur in
the payment on or before the due date of any principal or
interest due hereunder or under any of the other Loan
Documents, including, without limitation, the Notes, Borrower
will pay interest thereon (retroactively) from the date of the
Event of Default on such payment up to the date of the actual
payment (as well after as before judgment) at the Prime Rate
plus three percent (3%) (the "Default Rate"), without regard to
whether there has been an acceleration of the payment of
principal. Such interest at the Default Rate shall be payable
on demand.
3.3 Prime Rate. "Prime Rate" shall mean that index which
shall be established by Citibank, N.A. at New York, New York as
its "prime rate". Each change in the interest rate on each
Note shall take effect on the effective date of the change in
the Prime Rate.
3.4 Origination Fee. No origination fee shall be payable
by Borrower.
3.5 Method of Calculating Interest and Fees. Interest at
the Prime Rate and any fee shall be computed on the basis of a
year consisting of 365 days and paid for actual days elapsed,
and interest at the LIBO Rate shall be computed on the basis of
a year consisting of 360 days.
3.6 Interest Rate Options. Until an Event of Default
occurs, Borrower shall have the following interest rate
options:
(a) Advances to Borrower under the Revolving Credit
Facility may from time to time be (i) LIBO Rate Advances,
(ii) Prime Rate Advances, or (iii) any combination
thereof, as determined by Borrower with respect to its
Advances and noticed to Agent in accordance with
paragraphs (b), (c), and (d) below; provided that no
Advance shall be made to Borrower as a LIBO Rate Advance
under the Revolving Credit Facility after the day that is
one month prior to the Termination Date. For purposes of
this paragraph (a), an Advance shall be deemed "made" upon
an initial borrowing by Borrower under paragraph (b)
below, any conversion of such Advance under paragraph (c)
below, and upon any continuation of such Advance under
paragraph (d) below.
(b) With respect to any new Advance, Borrower shall
provide Agent with telephonic notice of its intended
borrowing, which notice must be received by Agent prior to
10:00 A.M., New Orleans time, at least one (1) Business
Day prior to the requested Borrowing Date, which notice
shall specify (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the borrowing is
to be of LIBO Rate Advances or Prime Rate Advances or a
combination thereof, (iv) the respective amounts of each
such type of Advance, and (v) if the borrowing is to be
entirely or partly of LIBO Rate Advances, the respective
lengths of the Interest Periods therefor.
(c) Borrower may elect from time to time to convert
any of its LIBO Rate Advances to Prime Rate Advances by
giving Agent telephonic notice of such election, which
notice must be received by Agent prior to 10:00 A.M., New
Orleans time, at least one (1) Business Day prior to the
requested conversion; provided that any such conversion,
of LIBO Rate Advances shall only be made on the last day
of an Interest Period with respect thereto. Borrower may
elect from time to time to convert any of its Prime Rate
Advances to LIBO Rate Advances by giving Agent telephonic
notice of such election, which notice must be received by
Agent prior to 10:00 A.M., New Orleans time, at least one
(1) Business Day prior to the requested conversion. Any
such notice of conversion to LIBO Rate Advances shall
specify the length of the initial Interest Period thereof
and the amount of the Prime Rate Advance to be converted.
All or any part of Borrower's outstanding LIBO Rate
Advances and Prime Rate Advances may be converted as
provided herein; provided that (i) no Prime Rate Advance
may be converted into a LIBO Rate Advance when any Event
of Default has occurred and is continuing, (ii) partial
conversions of Prime Rate Advances to LIBO Rate Advances
shall be in an aggregate principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof, (iii)
partial conversions of LIBO Rate Advances to Prime Rate
Advances shall be in an aggregate principal amount of
$500,000 or a whole multiple of $100,000 in excess
thereof, (iv) no Prime Rate Advance under the Revolving
Credit Facility may be converted into a LIBO Rate Advance
after the date that is one month prior to the Termination
Date, and (v) any such conversion may only be made if,
after giving effect thereto, paragraph (e) shall not have
been contravened.
(d) Any LIBO Rate Advances may be continued as such
upon the expiration of an Interest Period with respect
thereto by Borrower giving Agent telephonic notice, which
notice must be received by Agent prior to 10:00 A.M., New
Orleans time, at least one (1) Business Day prior to the
requested continuation; provided, that (i) no LIBO Rate
Advance may be continued as such when any Event of Default
has occurred and is continuing, (ii) no LIBO Rate Advances
under the Revolving Credit Facility may be continued as
such after the date which is one month prior to the
Termination Date, and (iii) any such continuation shall be
made only if, after giving effect thereto, paragraph (e)
shall not be contravened. If Borrower shall fail to give
such notice or if such continuation is not permitted, then
Borrower shall be deemed to have requested that the LIBO
Rate Advance be converted automatically to a Prime Rate
Advance on the last day of the then current Interest
Period with respect thereto.
(e) All borrowings, conversions and continuations of
Advances hereunder by Borrower and all selections of
Interest Periods hereunder by Borrower shall be in such
amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal
amount of the Advances to Borrower constituting each LIBO
Rate tranche (i.e., LIBO Rate Advances made on the same
day and having the same Interest Period) shall be equal to
$500,000 or a whole multiple of $100,000 in excess
thereof. If Borrower has no Prime Rate Advances
outstanding, Borrower may have a maximum of five (5) LIBO
Rate tranches in aggregate in effect at any one time, and,
if Borrower has Prime Rate Advances outstanding, Borrower
may have a maximum of four (4) LIBO Rate tranches in
aggregate in effect at any one time.
(f) Each determination of an interest rate by Agent
pursuant to any provision of this Agreement shall be
conclusive and binding on Borrower in the absence of
manifest error. Agent shall, at the request of Borrower,
deliver to Borrower a statement showing the quotations
used by Agent in determining the LIBO Rate.
(g) If prior to the first day of any Interest Period,
Agent shall have determined (which determination shall be
conclusive and binding upon Borrower) that either:
(i) adequate and reasonable means do not exist for
ascertaining the LIBO Rate for such Interest
Period; or
(ii) the interest rate determined for such Interest
Period does not adequately and fairly reflect
the cost to Banks (as conclusively certified by
Agent) of making, maintaining or funding their
LIBO Rate Advances during such Interest Period,
in either case with respect to (i) proposed
Advances that Borrower has requested be made as
LIBO Rate Advances, (ii) LIBO Rate Advances that
will result from the requested conversion of
Prime Rate Advances into LIBO Rate Advances, or
(iii) the continuation of LIBO Rate Advances
beyond the expiration of the then current
Interest Period with respect thereto;
Agent shall give telephonic notice thereof to Borrower as
soon as practicable thereafter. Unless Borrower notifies
Agent upon receipt of such notice that it wishes to
rescind or modify its request, Agent shall arrange that
(x) any affected LIBO Rate Advances requested by Borrower
shall be made as Prime Rate Advances, (y) any Prime Rate
Advances to Borrower that were to have been converted to
LIBO Rate Advances shall be continued as, or converted to,
Prime Rate Advances, and (z) all outstanding LIBO Rate
Advances to Borrower shall be converted, on the last day
of the then current Interest Period with respect thereto,
to Prime Rate Advances. Until such notice has been
withdrawn by Agent, no further LIBO Rate Advances shall be
made to Borrower, nor shall Borrower have the right to
convert Prime Rate Advances to LIBO Rate Advances.
(h) Notwithstanding any other provision in this
Agreement, if the adoption of or any change in any law or
regulation or in the interpretation or application thereof
(whether or not having the force of law) shall make it
unlawful or impossible for Bank to make, maintain or fund
LIBO Rate Advances as contemplated by this Agreement: (a)
the commitment of Banks hereunder to make LIBO Rate
Advances, continue LIBO Rate Advances as such and convert
Prime Rate Advances to LIBO Rate Advances shall forthwith
be cancelled; (b) the Advances then outstanding as LIBO
Rate Advances, if any, shall be converted automatically to
Prime Rate Advances on the respective last days of the
then current Interest Periods with respect to such
Advances or within such earlier period as required by law;
and (c) Borrower shall pay Banks such amounts, if any, as
may be required pursuant to paragraph (i) below.
(i) Borrower agrees to indemnify Banks and to hold
Banks harmless from any loss or expense which Banks may
sustain or incur as a consequence of (a) the making by
Borrower of a prepayment (whether mandatory or optional)
or any other payment of a LIBO Rate Advance on a day which
is not the last day of the Interest Period with respect
thereto, and/or (b) the conversion, whether voluntary or
involuntary, of a LIBO Rate Advance into a Prime Rate
Advance pursuant to this Section 3.6 or otherwise on a day
which is not the last day of an Interest Period with
respect thereto, including, without limitation, in each
case any such loss or expense arising from the
reemployment of funds obtained by it to maintain its LIBO
Rate Advances hereunder or from fees payable to terminate
the deposits from which such funds were obtained. This
covenant shall survive the termination of this Agreement
and the payment of the Advances and all other obligations
hereunder.
Section 4. Payments, Prepayments, and Reduction or
Termination of the Revolving Credit Facility.
4.1 Method of Payment. All payments of principal,
interest and other amounts to be made by Borrower under this
Agreement or any of the Notes or other Loan Documents shall be
made to Agent for the account of Banks at Agent's office at 201
St. Charles Avenue, New Orleans, Louisiana 70170 (or at such
other address as Agent or either of Banks may notify Borrower
in writing), in immediately available funds, without setoff,
deduction or counterclaim, not later than 2:00 p.m. (New
Orleans, Louisiana time) on the date on which such payment
shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next
succeeding Business Day) and, in the case of payments of
principal under the Revolving Credit Facility, in an amount of
at least $100,000.00, or an integral multiple thereof.
Borrower shall, at the time of making each such payment,
specify to Agent the sums payable by Borrower under this
Agreement, the Notes or other Loan Documents to which such
payment is to be applied. Notwithstanding the foregoing
sentence, unless and until an Event of Default shall have
occurred and be continuing (in which event such payments shall
be applied by Agent as Banks in their sole discretion shall
determine), all payments received by Agent shall be applied
first to the payment of all amounts (except principal and
interest) at the time due and unpaid hereunder or under any of
the other Loan Documents, then to interest hereon or thereon
accrued to the date of payment and finally to the unpaid
principal hereunder or thereunder. Whenever any payment under
this Agreement, the Notes or any other Loan Document shall be
stated to be due on a day that is not a Business Day, such pay-
ment may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of the payment of interest. Upon receipt of each
such payment, Agent shall make prompt payment within three (3)
Business Days to each Bank in like funds of all amounts
received by Agent for the account of such Bank.
4.2 Sharing of Payments. Banks shall share equally all
payments made pursuant to this Agreement and the benefits of
and from the Collateral and all proceeds from the sale thereof.
If either Bank shall receive at any time any payment hereunder,
or interest thereon, or receive any Collateral (or proceeds
thereof) in respect thereof (whether voluntarily or
involuntarily, by setoff or otherwise), or interest in any of
the foregoing, in a greater proportion than the other Bank
(such Bank receiving the greater proportion being referred to
herein as the "Benefitted Bank"), such Benefitted Bank shall
purchase for cash from the other Bank such portion of such
other Bank's Notes or Letters of Credit, or shall provide such
other Bank with the benefit of any such Collateral or the
proceeds thereof, as the case may be, as shall be necessary to
cause such Benefitted Bank to share the excess payment or
benefits of such Collateral or proceeds equally with the other
Bank; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
Benefitted Bank, such purchases shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery. Borrower agrees that each Bank so purchasing a
portion of another Bank's Notes or Letters of Credit, as the
case may be, may exercise all rights of payment (including,
without limitation, rights of setoff) with respect to such
portion as fully as if such Bank were the direct holder of such
portion.
4.3 Payments Without Deduction. Borrower shall pay
principal, interest and other amounts under, and in accordance
with the terms of, this Agreement, the Notes and the other Loan
Documents free and clear of and without deduction for any and
all present and future taxes, levies, imposts, deductions,
charges, withholdings and all other liabilities whatsoever.
4.4 Reduction of Credit. Subject to Section 3.6(i)
above, Borrower may from time to time, upon at least three (3)
Business Day's prior telephonic notice (confirmed in writing)
to Agent, permanently reduce the amount of the maximum
Revolving Commitment available under the Revolving Credit
Facility, but only upon payment of the outstanding principal
amount of each Note in excess of one-half (1/2) of the then
reduced amount of the maximum Revolving Commitment available
under the Revolving Credit Facility. Any such reduction of the
Revolving Commitment shall be in an amount of $100,000.00 or an
integral multiple thereof. Subject to Section 3.6(i) above,
Borrower may at any time on like notice terminate the entire
Revolving Commitment available under the Revolving Credit
Facility upon payment in full of the Notes and other
liabilities of Borrower relating to the Revolving Credit
Facility.
Section 5. Representations and Warranties of Borrower.
Borrower represents and warrants to Banks and Agent that:
5.1 Corporate Existence. Each of Borrower and its
Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the State of Louisiana;
and each of Borrower and its Subsidiaries has all necessary
corporate power and authority to acquire, own and hold the
property and all other properties it purports to own and hold
and to carry on its business as now conducted.
5.2 Authorization; Validity. Each of Borrower and its
Subsidiaries is and/or has been duly authorized to execute and
deliver this Agreement and all other Loan Documents to which
such Borrower or Subsidiary is a party and to perform its
obligations under this Agreement and all other Loan Documents
to which such Borrower or Subsidiary is a party. Borrower is
duly authorized and will continue to be duly authorized to
borrow money hereunder. Each of this Agreement and the other
Loan Documents to which Borrower or one of its Subsidiaries is
a party, as executed and delivered, constitutes the legal,
valid and binding obligation of Borrower and/or such
Subsidiary, enforceable in accordance with the respective terms
thereof.
5.3 No Conflicts. The execution and delivery of the Loan
Documents and the performance by each of Borrower and its
Subsidiaries of its obligations thereunder do not and will not
conflict with any provision of law or of the charter or by-laws
of Borrower or such Subsidiary or of any agreement binding upon
Borrower or such Subsidiary, as the case may be.
5.4 Financial Statements. Borrower's audited financial
statement as of December 31, 1996, a copy of which has been
furnished to Banks, has been prepared in conformity with GAAP
applied on a basis consistent with that of the preceding fiscal
year and period, presents fairly the financial condition of
Borrower as of such date and the results of its operations for
the periods then ended. Borrower's unaudited financial
statement as of March 31, 1997, a copy of which has been
previously furnished to Banks, except for the absence of
footnotes normally associated with financial statements
prepared in accordance with GAAP, has been prepared in
conformity with GAAP and presents fairly the financial
condition of Borrower as of such date and the results of its
operations for the periods then ended. Since December 31,
1996, there has been no material adverse change in Borrower's
financial condition. Since December 31, 1996, there has been
no material adverse change in the financial condition of any of
Borrower's Subsidiaries.
5.5 Litigation. To the best of Borrower's knowledge,
after due inquiry, no litigation or governmental proceedings
are pending or threatened against Borrower or any of its
Subsidiaries, the results of which might materially affect
Borrower's or such Subsidiary's financial condition or
operations, except those referred to in a schedule furnished
contemporaneously herewith and attached hereto as Schedule 1.
Other than any liability incident to such litigation or
proceedings or provided for or disclosed in the financial
statements referred to in Section 5.4, Borrower does not have
any material contingent liabilities. No Subsidiary has any
material contingent liability other than those imposed by the
Collateral Documents.
5.6 Liens. None of the assets of Borrower or any of its
Subsidiaries with a net book value of greater than $25,000.00
is subject to any Lien, except for the Liens created pursuant
to the Collateral Documents and Permitted Liens.
5.7 Subsidiaries. Borrower has no Subsidiaries other
than Dolphin Services, and Dolphin Services has no
Subsidiaries.
5.8 Purpose. The proceeds of the Revolving Credit
Facility shall be used by Borrower for general corporate
purposes.
5.9 Use of Proceeds; Margin Securities. Borrower is not
engaged in the business of purchasing or selling margin stock
(as defined in Regulation U of the Board of Governors of the
Federal Reserve System) or extending credit to others for the
purpose of purchasing or carrying margin stock and,
notwithstanding Section 5.8 hereof, no part of the proceeds of
any borrowing hereunder will be used to purchase or carry any
margin stock or for any other purpose which would violate any
of the margin regulations of such Board of Governors.
5.10 Compliance with ERISA. Each of Borrower and its
Subsidiaries is in compliance with all statutes and
governmental rules and regulations applicable to it, including,
without limitation, the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"). No condition exists or event or
transaction has occurred in connection with any plan, as
defined in Sections 3(3) and 3(37) of ERISA, maintained by
Borrower or any of its Subsidiaries (any such plan being
hereinafter called the "Plan"), which could result in
Borrower's or such Subsidiary's incurring any material
liability, fine or penalty. No Reportable Event (as defined in
ERISA) has occurred with respect to any such Plan. Neither
Borrower nor any of its Subsidiaries has withdrawn from any
such Plan or initiated steps to do so and no steps have been
taken to terminate any such Plan.
5.11 Consents. No consent, approval or authorization of,
or registration or declaration with, any federal or state
governmental authority or other regulatory agent for the
validity of the execution and delivery or for the performance
by Borrower or any of its Subsidiaries of the Loan Documents is
required.
5.12 Tax Returns. Each of Borrower and its Subsidiaries
has filed all tax returns which are required to be filed by any
jurisdiction, and has paid all taxes which have become due
pursuant to said returns or pursuant to any assessments.
5.13 Operation of Business. Each of Borrower and its
Subsidiaries possesses all licenses, permits, franchises,
patents, copyrights, trademarks and trade names, or rights
thereto, to conduct its business substantially as now conducted
and as presently proposed to be conducted, and neither Borrower
nor any of its Subsidiaries is in violation of any valid
rights of others with respect to any of the foregoing.
5.14 Rights in Properties; Liens. Each of Borrower and
its Subsidiaries has good and indefeasible title to its
properties and assets, real and personal, including the
properties and assets reflected in the financial statements
described in Section 5.4 hereof, and none of the properties,
assets or leasehold interests of Borrower or any Subsidiary is
subject to any Lien, except as permitted by Section 6.11
hereof.
5.15 Debt. Borrower has no Debt, except as disclosed in
the financial statements described in Section 5.4 hereof and as
otherwise permitted by this Agreement. No Subsidiary of
Borrower has any Debt except as owed to Borrower or as
otherwise permitted by this Agreement.
5.16 Disclosure. No statement, information, report,
representation or warranty made by Borrower or any of its
Subsidiaries in this Agreement or in any of the other Loan
Documents or furnished by Borrower or any of its Subsidiaries
to Banks or Agent in connection with the negotiation or
preparation of this Agreement, or any amendment hereto,
contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements herein
or therein not misleading. There is no fact known to Borrower
or to any of its Subsidiaries that has not been disclosed in
writing to Banks which has a material adverse effect, or which
might in the future have a material adverse effect, on the
business, assets, financial condition or operations of
Borrower, any of its Subsidiaries or on the Collateral.
5.17 Registered Office; Principal Place of Business;
Location of Collateral. The principal place of business, chief
executive office and registered office of Borrower and the
place where Borrower keeps its books and records and all
Collateral is located on the Real Property. The principal
place of business, chief executive office and registered office
of Dolphin Services and the place where Dolphin Services keeps
its books and records and all Collateral owned by Dolphin
Services and encumbered by the Collateral Documents is located
in Terrebonne Parish, Louisiana (with the exception of certain
such Collateral which is, from time to time and in the ordinary
course of Dolphin Services' business, temporarily located at
job sites outside of Terrebonne Parish). Borrower has always
maintained its registered office in either Terrebonne or East
Baton Rouge Parish, Louisiana, and Dolphin Services has always
maintained its registered office in Terrebonne Parish,
Louisiana. Neither Borrower nor any of its Subsidiaries does,
or has ever done, any business from any location other than as
set forth in this Section. No Person other than Borrower,
Dolphin Services, Agent and Banks has possession of any of the
Collateral.
5.18 Investment Company Act. Neither Borrower nor any of
its Subsidiaries is an "Investment Company" within the meaning
of the Investment Company Act of 1940, as amended.
5.19 Other Agreements. With the exception of construction
contracts entered into by Borrower or one of its Subsidiaries
in the ordinary course of Borrower's or such Subsidiary's
business, neither Borrower nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement, or to any
lease or other agreement or instrument, or subject to any
charter of corporate restriction which could have a material
adverse effect on the business, properties, assets, operations
or conditions, financial or otherwise, of Borrower or such
Subsidiary, or the ability of Borrower or such Subsidiary to
pay and perform its obligations under the Loan Documents to
which it is a party. Neither Borrower nor any of its
Subsidiaries is in default in any respect in the performance,
observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument material
to its business to which it is a party.
5.20 Compliance with Law. Each of Borrower and its
Subsidiaries is in compliance with all laws, rules,
regulations, orders and decrees which are applicable to
Borrower, its Subsidiaries or any of their respective
properties. Without limiting the generality of the foregoing:
(a) Employment Matters. Each of Borrower and its
Subsidiaries is in full compliance with all applicable
laws, rules, regulations and governmental standards
regarding employment, including, without limitation, the
minimum wage and overtime provisions of the Fair Labor
Standards Act, as amended (29 U.S.C. Sections 201-219), and the
regulations promulgated thereunder.
(b) Environmental Matters.
(i) Each of Borrower and its
Subsidiaries and all of their
respective properties, assets and
operations are in full compliance
with all Environmental Laws.
Neither Borrower nor any of its
Subsidiaries is aware of or has
received notice of, any past,
present or future conditions,
events, activities, practices or
incidents which may interfere
with or prevent the compliance or
continued compliance of Borrower
or any of its Subsidiaries with
all Environmental Laws.
(ii) Each of Borrower and its Subsidiaries
has obtained all permits, licenses and
authorizations and has filed all plans
which are required under Environmental
Laws in order to conduct its business
and/or own its properties and assets
including without limitation all
Louisiana air emission permits
required under any Environmental Law
in order to conduct Borrower's or such
Subsidiary's business and/or own its
assets or properties.
(iii)Each of Borrower and its Subsidiaries has
on file an SPCC Plan as required under
applicable Environmental Laws in connection
with Borrower's or any Subsidiary's storage
of petroleum on the Real Property.
(iv) No Hazardous Substances or Solid Wastes
exist on, about or within or have been
used, generated, stored, transported,
disposed of on, or released from any of the
properties or assets of Borrower or any of
its Subsidiaries except in compliance with
Environmental Laws.
(v) There is no action, suit, proceeding,
investigation or inquiry before any court,
administrative agency or other governmental
authority pending or, to the knowledge of
Borrower or any of its Subsidiaries,
threatened against Borrower or any of its
Subsidiaries relating in any way to any
Environmental Law. Neither Borrower nor
any of its Subsidiaries has (A) been
notified of any liability for remedial
action under any Environmental Law,
(B) received any request for information by
any governmental authority with respect to
the condition, use or operation of any of
its properties or assets, or (C) received
any notice from any governmental authority
or other Person with respect to any
violation of or liability under any
Environmental Law.
5.21 Corporate Name. The exact corporate name of Borrower
as it appears in its articles of incorporation is as set forth
in the introduction of this Agreement and, with the exception
of doing business under the name GIFI, Inc., Borrower has never
done any business in any location under any other name. The
exact corporate name of Dolphin Services as it appears in its
articles of incorporation is as set forth in the recitals of
this Agreement, and Dolphin Services has never done any
business in any location under any other name.
5.22 Collateral. The Collateral Documents create in favor
of Banks, and/or Agent for the benefit of Banks, valid,
enforceable and perfected Liens on the properties described
therein, which Liens secure the payment and performance of the
obligations of Borrower and its Subsidiaries to Banks described
in the Collateral Documents, and which Liens are superior to
the rights of all third Persons, whether now existing or here-
after arising.
5.23 Taxpayer I.D. Numbers. Borrower's Federal Taxpayer
Identification Number is 72-1147390, and Dolphin Services'
Federal Taxpayer Identification Number is 72-0890896.
5.24 Effect of Dolphin Merger. Following the merger of
Dolphin Sales and Dolphin Steel into Dolphin Services pursuant
to a certain Agreement of Merger among Dolphin Sales, Dolphin
Steel and Dolphin Services, dated April 30, 1997, Dolphin
Services acquired ownership of Dolphin Sales' immovable
property subject to the Liens previously created by the
Collateral Documents on such immovable property which continue
in full force and effect and with the same ranking as existed
prior to said merger.
Section 6. Borrower's Covenants.
From the date of this Agreement and thereafter until the
expiration or termination of the Revolving Commitment, and
until the Notes and other liabilities of Borrower hereunder are
paid in full and all other obligations and liabilities under
the Loan Documents are performed and paid in full, Borrower
agrees that it will:
6.1. Financial Statements. Furnish to Agent:
(a) promptly after the sending or filing thereof,
copies of all reports which Borrower sends to any of its
public security holders, and copies of all Forms 10-K, 10-
Q and 8-K, Schedules 13E-4 (including all exhibits filed
therewith) and registration statements, and any other
filings or statements that Borrower files with the
Securities and Exchange Commission or any national
securities exchange;
(b) within one hundred twenty (120) days after the
end of each fiscal year, a copy of Borrower's financial
statements (describing assets, liabilities, and results of
operations for Borrower and its Subsidiaries on a
consolidated basis), audited by independent certified
public accountants of nationally recognized standing
selected by Borrower and reasonably satisfactory to Banks,
prepared in conformity with GAAP;
(c) within forty-five (45) days after the end of each
month, a copy of Borrower's unaudited financial statements
(describing assets, liabilities, and results of operations
for Borrower and its Subsidiaries on a consolidated basis)
prepared in conformity with GAAP, except for the absence
of footnotes normally associated with financial statements
prepared in accordance with GAAP;
(d) together with the financial statements furnished
by Borrower under preceding clause (a), a certificate of
the president or chief financial officer of Borrower to
the effect that no Event of Default with respect to
Borrower, or event which might mature into an Event of
Default with respect to Borrower, has occurred and is
continuing;
(e) forthwith upon the occurrence of an Event of
Default, a certificate of the president or chief financial
officer of Borrower specifying the nature and the period
of existence thereof and what action Borrower proposes to
take with respect thereto;
(f) written notice of any and all litigation
affecting Borrower or any of its Subsidiaries, directly or
indirectly; provided, however, this requirement shall not
apply to litigation involving Borrower or one of its
Subsidiaries and any other party if such litigation
involves, in the aggregate, less than $500,000.00;
(g) prompt notice of any change in the present
officers, directors and/or stockholders of Borrower or any
of its Subsidiaries; and
(h) from time to time, such other information as
Banks may reasonably request.
6.2 Access. Permit access, and cause its Subsidiaries to
permit access, by Banks and Agent to the books and records and
other property of Borrower and its Subsidiaries during normal
business hours and upon reasonable notice and permit, and cause
its Subsidiaries to permit, Banks to make copies of said books
and records.
6.3 Insurance. Maintain, and cause its Subsidiaries to
maintain, with financially sound and reputable insurance
companies workmen's compensation insurance, liability insurance
and insurance on Borrower's and its Subsidiaries' property,
assets and business at least to such extent and against such
hazards and liabilities as is commonly maintained by similar
companies and, in addition to the foregoing insurance, such
insurance as may be required in the Collateral Documents. In
the case of property (whether owned by Borrower or by one of
its Subsidiaries) on which Banks or Agent has a Lien, Borrower
shall provide, and shall cause its Subsidiaries to provide,
Agent with duplicate originals or certified copies of such
policies of insurance naming Banks as additional loss payees
and as additional insureds as their interests may appear and
providing that such policies will not be canceled without
thirty (30) days' prior written notice to Banks.
6.4 Repair. Maintain, preserve and keep, and cause its
Subsidiaries to maintain, preserve, and keep, Borrower's and
such Subsidiaries' properties in good repair, working order and
condition, and make, and cause its Subsidiaries to make,
necessary and proper repairs, renewals and replacements so that
Borrower's and its Subsidiaries' business carried on in
connection therewith may be properly conducted at all times.
6.5 Taxes. Pay or discharge, and cause its Subsidiaries
to pay and discharge, at or before maturity or before becoming
delinquent (a) all taxes, levies, assessments and governmental
charges imposed on Borrower or any of its Subsidiaries or its
income or profits or any of its property, and (b) all lawful
claims for labor, materials and supplies which, if unpaid,
might become a Lien upon any of Borrower's property or the
property of any of its Subsidiaries; provided, however, that
neither Borrower nor any Subsidiary shall be required to pay or
discharge any tax, levy, assessment or governmental charge
which is being contested in good faith by appropriate
proceedings diligently pursued.
6.6 Corporate Existence. Maintain its corporate
existence in good standing and cause its Subsidiaries to
maintain their respective corporate existences in good
standing.
6.7 Merger. Without the prior written consent of Banks,
not, and cause each of its Subsidiaries not to:
(a) be a party to any merger or consolidation (other
than a merger of one or more of the Subsidiaries into
another Subsidiary or a merger of one or more of the
Subsidiaries into Borrower, in either event followed by
notice to Banks of the merger delivered within ten (10)
days after the merger becomes effective);
(b) except in the normal course of its business,
sell, transfer, convey, or lease all or any substantial
part of Borrower's or a Subsidiary's assets;
(c) sell or assign, except in the normal course of
Borrower's business or the business of one of its
Subsidiaries, with or without recourse, any accounts
receivable or chattel paper.
6.8 Compliance. Comply, and cause its Subsidiaries to
comply, with all statutes, laws, ordinances, orders, rules and
regulations applicable to Borrower or such Subsidiary,
including, without limitation, all Environmental Laws and
ERISA; provided, however, Borrower and its Subsidiaries shall
be deemed to be in compliance with this requirement for such
time as Borrower or one of its Subsidiaries may be contesting,
in good faith and with diligence by appropriate proceedings,
any alleged violation of any statute, rule or regulation.
Borrower shall not permit, and shall cause each of its
Subsidiaries not to permit, any condition to exist in
connection with any Plan which might constitute grounds for the
PBGC to institute proceedings to have such Plan terminated or a
trustee appointed to administer such Plan, and Borrower shall
not engage in, or permit to exist or occur, and shall cause its
Subsidiaries not to engage in or permit to occur or exist, any
other condition, event or transaction with respect to, any such
Plan which could result in Borrower or one of its Subsidiaries
incurring any material liability, fine or penalty.
Without limiting the generality of the foregoing, Borrower
shall comply, and shall cause each of its Subsidiaries to
comply, fully with and maintain in effect any and all
environmental permits and licenses required under any
Environmental Law in order to conduct Borrower's or such
Subsidiary's business. To the extent such permits are required
but have not been obtained, or to the extent such existing
permits must be modified or renewed, Borrower shall make, and
shall cause its Subsidiaries to make, timely application for
and obtain all such permits, modifications or renewals thereof,
as the case may be, including, but not limited to, necessary
federal and/or state water discharge, air emission and waste
management permits.
As often as Banks or Agent may require, Borrower shall
submit to Agent written progress reports addressing the status
of environmental permits and plans required of Borrower or any
of its Subsidiaries, including pending permit applications.
Anything contained herein to the contrary notwithstanding,
Borrower shall not use, or permit any of its Subsidiaries to
use, any of the properties of Borrower or of one of Borrower's
Subsidiaries or allow such properties to be used for the
storage, treatment or disposal of Solid Waste or Hazardous
Substances except in the ordinary course of Borrower's or such
Subsidiary's business and in compliance with the terms of any
applicable Environmental Law or permit.
6.9 Use of Proceeds. Not use or permit any proceeds of
the Advances to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of
"purchasing or carrying any margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve
System, as amended from time to time, and furnish to Banks,
upon either of their requests, a statement in conformity with
the requirements of Federal Reserve Form U-1 referred to in
Regulation U of the Board of Governors of the Federal Reserve
System.
6.10 Financial Covenants. Maintain, on a consolidated
basis with all of its Subsidiaries,
(a) a ratio of current assets to current liabilities,
as determined in accordance with GAAP, in excess of 1.50
to 1.00;
(b) a minimum Net Worth of THIRTY-EIGHT MILLION AND
NO/100 DOLLARS ($38,000,000.00) from the date of this
Agreement until June 30, 1997 and a minimum Net Worth
thereafter equal to the sum of THIRTY-EIGHT MILLION AND
NO/100 DOLLARS ($38,000,000.00) plus (1) fifty percent
(50%) of the earnings of Borrower and its Subsidiaries, as
determined in accordance with GAAP, accruing after
June 30, 1997 and (2) one hundred percent (100%) of the
proceeds of any future public equity offering by Borrower,
net of any fees, commissions, expenses and other costs
incurred by Borrower in connection with such public equity
offering;
(c) a ratio of Debt to Net Worth no greater than .50
to 1.00; and
(d) a ratio of EBIT to Interest Expense of at least
4.00 to 1.00, such ratio to be determined as of the end of
each fiscal quarter by giving effect to such fiscal
quarter and the three (3) immediately preceding fiscal
quarters; provided that there shall be no Event of Default
under this Section 6.10(d) unless Borrower fails to meet
the ratio described in this Section 6.10(d) for three (3)
successive fiscal quarters.
6.11 Liens. Not create, incur, or suffer to exist, and
not permit any of Borrower's Subsidiaries to create, incur or
suffer to exist, any Lien on any of Borrower's property or on
the property of Borrower's Subsidiaries except ((a) through (g)
of this Section being referred to collectively as the
"Permitted Liens"):
(a) those for taxes, assessments or governmental
charges or levies if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate
proceedings;
(b) those imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar
liens arising in the ordinary course of business which
secure payment of obligations not more than sixty (60)
days past due;
(c) those arising out of pledges or deposits under
workmen's compensation laws, unemployment insurance, old
age pensions, or other social security or retirement
benefits, or similar legislation;
(d) utility easements, building restrictions and such
other encumbrances or charges against real property as are
of a nature generally existing with respect to properties
of a similar character and which do not in any material
way affect the marketability of the same or interfere with
the use thereof in the business of Borrower or of any of
Borrower's Subsidiaries;
(e) lessors' interests under financing leases;
(f) liens on assets of Borrower and its Subsidiaries
not covered by the Loan Documents which liens secure
obligations of Borrower or its Subsidiaries in the
ordinary course of business which in the aggregate for all
such obligations of Borrower and its Subsidiaries do not
exceed $250,000.00; and
(g) the Liens created pursuant to the Loan Documents.
6.12 Debt. Not create or permit to exist, and not allow
any of Borrower's Subsidiaries to create or permit to exist,
any Debt without the prior written consent of Banks, if, as a
result thereof, exclusive of the indebtedness contemplated by
this Agreement, the aggregate amount of Debt of Borrower and
its Subsidiaries would exceed the sum of $1,000,000.00;
provided, however, that any Subsidiary may incur Debt owed to
Borrower and such Debt owed to Borrower shall not be included
in the $1,000,000.00 limit.
6.13 Shareholder or Employee Loans. Not make, and not
permit any Subsidiary to make, advances or loans to employees
of Borrower or any Subsidiary or shareholders of Borrower which
exceed the aggregate amount of $100,000.00.
6.14 Change in Business. Carry on and conduct, and cause
its Subsidiaries to carry on and conduct, the business of
Borrower and each of its Subsidiaries in substantially the same
manner and in substantially the same fields of enterprise as
such businesses are presently conducted; provided, however,
that the foregoing shall not prevent Borrower or one of its
Subsidiaries from engaging in new and additional activities as
long as said activities are in substantially the same fields of
enterprise as are currently being engaged in by Borrower and
Dolphin Services.
6.15 Accounts Receivable. Provide, and cause its
Subsidiaries to provide, Banks with aging reports of Borrower's
and such Subsidiaries' accounts receivable on a monthly basis.
16.16 Compliance with Agreements. Comply with, and cause
each of its Subsidiaries to comply with, all indentures,
mortgages, deeds of trust and other agreements binding on
Borrower or any Subsidiary or affecting its properties or
business.
6.17 Further Assurances. Execute and deliver, and cause
its Subsidiaries to execute and deliver, such further
documentation as may be requested by Banks or Agent to carry
out the provisions and purposes of this Agreement and the other
Loan Documents and to preserve and perfect the Liens of Banks
or Agent for the benefit of Banks, as the case may be, in the
Collateral.
6.18 Disposition of Assets. Not sell, lease, assign,
transfer or otherwise dispose of, and shall cause each of its
Subsidiaries not to sell, lease, assign, transfer or otherwise
dispose of, any of its assets, except dispositions of
inventory, equipment, and scrap in the ordinary course of
business and as otherwise provided in this Agreement.
6.19 Change Tax I.D. Number. Not change, and cause
Dolphin Services not to change, any of the Federal Taxpayer
Identification Numbers set forth in Section 5.23 hereof without
giving Agent at least sixty (60) days' prior written notice.
6.20 Indemnity. Indemnify, defend and hold Agent and
Banks and their respective directors, officers, agents,
attorneys and employees harmless from and against all claims,
demands, causes of action, liabilities, losses, costs and
expenses (including, without limitation, costs of suit,
reasonable legal fees and fees of expert witnesses) arising
from or in connection with (a) the presence in, on or under any
property of Borrower or of any Subsidiary of Borrower
(including, without limitation, the Real Property) of any
Hazardous Substance or Solid Waste, or any releases or
discharges (as the terms "release" and "discharge" are defined
under any applicable Environmental Law) of any Hazardous
Substance or Solid Waste on, under or from such property, (b)
any activity carried on or undertaken on or off such property
of Borrower or of any of its Subsidiaries, whether prior to or
during the term of this Agreement, and whether by Borrower, any
of its Subsidiaries or any predecessor in title to Borrower's
or such Subsidiary's property or any officers, employees,
agents, contractors or subcontractors of Borrower, any
Subsidiary of Borrower or any predecessor in title to the
property of Borrower or such Subsidiary, or any third persons
at any time occupying or present on such property, in
connection with the handling, use, generation, manufacture,
treatment, removal, storage, decontamination, clean-up,
transportation or disposal of any Hazardous Substance or Solid
Waste at any time located or present on or under any of the
aforedescribed property, or (c) any breach of any repre-
sentation, warranty or covenant under the terms of this
Agreement. The foregoing indemnity shall further apply to any
residual contamination on or under any or all of the afore-
described property, or affecting any natural resources, and to
any contamination of any property or natural resources arising
in connection with the use, handling, storage, transportation
or disposal of any Hazardous Substance or Solid Waste, and
irrespective of whether any of such activities were or will be
undertaken in accordance with applicable laws, regulations,
codes and ordinances. The indemnity described in this Section
shall survive the termination of this Agreement for any reason
whatsoever.
6.21 Real Property. Not create a Lien on any of the Real
Property, or permit any Subsidiary to create a Lien on any of
the Real Property, in favor of, or otherwise convey, or permit
a Subsidiary to convey, any portion of the Real Property to any
Person without the prior written consent of Banks.
Section 7. Conditions Precedent to Extensions of Credit.
The obligation of Banks to extend credit to Borrower under
this Agreement is subject to the satisfaction of the conditions
precedent, in addition to the applicable conditions precedent
set forth in Section 8 below with respect to Advances and/or
Letters of Credit, that Borrower shall have delivered, or
caused to be delivered, to Banks in form and substance
satisfactory to Banks:
7.1 Borrower's Resolutions. Copies, duly certified by
the secretary or assistant secretary of Borrower, of (a) the
resolutions of Borrower's Board of Directors authorizing the
borrowings hereunder and the execution and delivery of all of
the Loan Documents to which Borrower is a party, (b) all
documents evidencing other necessary corporate action and
(c) all approvals or consents, if any, with respect to the Loan
Documents.
7.2 Dolphin Services' Resolutions. Copies, duly
certified by the secretary or assistant secretary of Dolphin
Services, of (a) the resolutions of Dolphin Services' Board of
Directors authorizing the borrowings hereunder and the
execution and delivery of all of the Loan Documents to which
Dolphin Services is a party, (b) all documents evidencing other
necessary corporate action and (c) all approvals or consents,
if any, with respect to the Loan Documents.
7.3 Notes. Borrower's duly executed Notes payable to the
order of Banks.
7.4 New Collateral Documents. The duly authorized and
executed new Collateral Documents of Borrower and Dolphin
Services annexed hereto as Exhibits "D", "E", "F", "G", "H",
"I", and "J" (the "New Collateral Documents").
7.5 Incumbency. Certificates of Borrower's and Dolphin
Services' secretary or assistant secretary, substantially in
the form of Exhibit "K" hereto, certifying the name of the
officers of Borrower and Dolphin Services authorized to execute
the Loan Documents, and all other documents or certificates to
be delivered hereunder, together with the true signatures of
such officers.
7.6 Certification. A certificate, substantially in the
form of Exhibit "L" hereto, of the president or chief financial
officer of Borrower as to the matters set out in Sections 8.1
and 8.2 hereof.
7.7 Opinion. The opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P., counsel to Banks and
Agent, addressed to Banks and Agent, to the effect that
(a) Borrower and Dolphin Services are corporations duly
organized, validly existing and in good standing under the laws
of the State of Louisiana; (b) Borrower has full power to
execute, deliver and perform its obligations under this
Agreement, the Notes and the Collateral Documents to which it
is a party; (c) Dolphin Services has full power to execute,
deliver and perform its obligations under this Agreement and
the Collateral Documents to which it is a party; (d) such
actions have been duly authorized by all necessary corporate
action, and are not in conflict with any provision of law or of
the charter or by-laws of Borrower or Dolphin Services, nor to
the best of counsel's knowledge, in conflict with any agreement
binding upon Borrower or Dolphin Services; and (e) this
Agreement, the Notes, and the New Collateral Documents are the
legal and binding obligations of Borrower enforceable in
accordance with their respective terms, except as enforcement
may be limited by applicable bankruptcy, reorganization,
moratorium or similar laws.
Section 8. Additional Conditions Precedent to Advances
and/or Letters of Credit.
The obligation of Banks to make any Advance and/or issue
any Letter of Credit under the Revolving Credit Facility is
subject to, in addition to the satisfaction of all other
conditions precedent applicable to the Revolving Credit
Facility and set forth in Section 7 above, the satisfaction of
each of the following conditions precedent:
8.1 Default. Before and after giving effect to such
Advance and/or Letter of Credit, no Event of Default shall have
occurred and be continuing.
8.2 Warranties. Before and after giving effect to such
Advance and/or Letter of Credit, the representations and
warranties in Section 5 hereof shall be true and correct as
though made on the date of such Advance and/or Letter of Credit
except for such changes as are specifically permitted
hereunder.
Section 9. Events of Default.
The following events shall constitute Events of Default
hereunder and under the Revolving Credit Facility, individually
and collectively, and under all other Loan Documents:
9.1 Payment. Default in the payment of principal on any
one or more of the Notes when due, or default in the payment of
any interest on any one or more of the Notes or any expense or
fee hereunder or under any of the other Loan Documents, which
default shall continue for a period of five (5) days following
written notice thereof to Borrower from Banks or Agent;
9.2 Other Indebtedness. Any other indebtedness of
Borrower is not paid at maturity or becomes due and payable
prior to its expressed maturity by reason of any default by
Borrower in the performance or observance of any obligation or
condition thereunder which default shall continue for a period
of thirty (30) days following written notice thereof to
Borrower from Banks or Agent;
9.3 Other Default. Any default of any other obligation
of Borrower under the terms of any note or notes, mortgage,
indenture, loan agreement or security document of Borrower,
including, without limitation, any of the Loan Documents, which
default shall continue for a period of thirty (30) days
following written notice thereof to Borrower from Banks or
Agent, it being expressly understood and agreed that a default
under any note, mortgage, indenture, loan agreement or security
document of Borrower, including, without limitation, any of the
Loan Documents, shall constitute a default under all other
notes, mortgages, indentures, loan agreements and security
documents held by Banks or Agent, including, without
limitation, the Loan Documents;
7.4 Insolvency. Borrower or any Subsidiary of Borrower
becomes insolvent or admits in writing its inability to pay its
debts as they mature or applies for, consents to, or acquiesces
in the appointment of a trustee or receiver for Borrower, such
Subsidiary or any property of Borrower or of such Subsidiary;
or, in the absence of such application, consent or
acquiescence, a trustee or receiver is appointed for Borrower,
for any Subsidiary of Borrower or for a substantial part of any
property of either Borrower or of any of its Subsidiaries and
is not discharged within thirty (30) days; or any bankruptcy,
reorganization, debt arrangement, or other proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation
proceeding is instituted by or against Borrower or any of
Borrower's Subsidiaries, and if instituted against Borrower or
one of Borrower's Subsidiaries, it is consented to or
acquiesced in by Borrower or such Subsidiary, or remains for
thirty (30) days undismissed; or any warrant of attachment is
issued against any substantial portion of the property of
Borrower or of any Subsidiary of Borrower which is not released
within thirty (30) days of service;
7.5 ERISA. The PBGC applies to a United States District
Court for the appointment of a trustee to administer any Plan
adopted, established or maintained by Borrower, or for a decree
adjudicating that any such Plan must be terminated; a trustee
is appointed pursuant to ERISA to administer any such Plan; any
action is taken to terminate any such Plan or any such Plan is
permitted or caused to be terminated if, at the time such
action is taken or such termination of such Plan occurs, the
Plan's "vested liabilities," as defined in Section 3(25) of
ERISA, exceed the then value of its assets at the time of such
termination;
7.6 Agreements. Default in the performance of any of
Borrower's covenants and/or agreements set forth in this
Agreement and/or any of the other Loan Documents (and not
constituting an Event of Default under any of the preceding
subsections of this Section 9), which default shall continue
for a period of thirty (30) days after written notice thereof
to Borrower from Banks or Agent;
7.7 Representation or Warranty. Any representation or
warranty made by Borrower or by any Subsidiary of Borrower
herein is untrue in any material respect, or any schedule,
statement, report, notice or writing furnished by Borrower or
any of the Owners to Banks is untrue in any material respect on
the date as of which the facts set forth are stated or
certified which default shall continue for a period of thirty
(30) days after written notice thereof to Borrower from Banks
or Agent; and
7.8 Subsidiary Default. Any Subsidiary of Borrower
defaults on the payment of any amount due Banks under any Loan
Document to which such Subsidiary is a party, which default
shall continue for a period of five (5) days following written
notice thereof to Borrower from Banks or Agent; any
representation or warranty made by a Subsidiary of Borrower
under any Loan Document is untrue in any material respect as of
the date made, or any schedule, statement, report, notice or
writing furnished by a Subsidiary of Borrower to Banks is
untrue in any material respect on the date as of which the
facts set forth are stated or certified, which default shall
continue for a period of thirty (30) days after written notice
thereof to Borrower from Banks or Agent; or any Subsidiary of
Borrower defaults in the performance of any other covenant
and/or agreement set forth in any Loan Document to which such
Subsidiary is a party, which default shall continue for a
period of thirty (30) days after written notice thereof to
Borrower from Banks or Agent.
Upon the occurrence of any Event of Default, Banks, or
Agent upon the direction of Banks, in addition to all of the
remedies conferred upon Agent and/or Banks under law, in equity
or under any of the Loan Documents, may declare the Revolving
Commitment to be terminated and the Notes to be due and
payable, whereupon the Revolving Commitment shall immediately
terminate, and the Notes shall become immediately due and
payable, without notice of any kind, except that if an event
described in Section 9.4 occurs, the Revolving Commitment shall
immediately terminate, and the Notes shall become immediately
due and payable without declaration or notice of any kind.
Section 10. Agent.
10.1 Authorization and Action. Each Bank hereby appoints
and authorizes Agent to execute the Collateral Documents on
behalf of each such Bank and to take such action as Agent on
such Bank's behalf, and to exercise such powers under the Loan
Documents, as are delegated to Agent by the terms thereof,
together with such other powers as are reasonably incidental
thereto, including, without limitation, the enforcement of the
Loan Documents in accordance with the terms thereof (including,
without limitation, the collection of the Notes), and Agent
hereby accepts such appointment. As to any matters not
expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes),
Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of Banks and such
instructions shall be binding upon Banks; provided, however,
that Agent shall not be required to take any action which
exposes Agent to personal liability or which is contrary to any
of the Loan Documents or applicable law. Agent shall not
consent to any amendment of this Agreement or any of the other
Loan Documents (and no amendment by Banks shall be effective
without consent of Agent), the effect of which would be to
increase the amount of the Obligations or extend the maturity
of any obligation, reduce the bases on which any interest is
computed, release any Collateral, waive any provision regarding
covenants or obligations of Borrower or the Owners or Events of
Default, without the express written consent of all Banks.
10.2 Agent's Reliance, Etc. Neither Agent nor any of its
directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or
in connection with any of the Loan Documents except for its or
their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, Agent: (i) may
treat the payee of any Note as the holder thereof until Agent
receives written notice of the assignment or transfer thereof
signed by such payee and in form satisfactory to Agent;
(ii) may consult with legal counsel (including counsel for
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Bank and shall not be
responsible to any Bank for any statements, warranties or
representations made in or in connection with any of the Loan
Documents; (iv) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the
terms, covenants or conditions of any of the Loan Documents on
the part of Borrower or to inspect the property (including the
books and records) of Borrower; (v) shall not be responsible to
any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the
Loan Documents or any other instruments or document furnished
pursuant hereto; and (vi) shall incur no liability under or in
respect of any of the Loan Documents by acting upon any notice,
consent, certificate or other instrument or writing (which may
be by telegram, cable or telex) believed by it to be genuine
and signed by the proper party or parties.
10.3 First NBC and Affiliates. With respect to the Note
payable to the order of First NBC and the portion of the
Revolving Commitment applicable to First NBC, First NBC shall
have the same rights and powers under the Loan Documents as the
other Bank and may exercise the same as though it were not
Agent; and the term "Bank" or "Banks" shall, unless otherwise
expressly indicated, include First NBC in its individual
capacity. Without limiting the generality of the foregoing,
First NBC and its affiliates may accept deposits from, and
generally engage in any kind of business with, Borrower, and
any person, firm or corporation who may do business with or own
securities of Borrower, all as if First NBC were not Agent and
without any duty to account therefor to Banks.
10.4 Bank Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon Agent or any other
Bank and based on the financial statements furnished by
Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Bank also acknowledges that
it will, independently and without reliance upon Agent or any
other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan
Documents. Each Bank acknowledges that a copy of this
Agreement has been made available to it and each Bank
acknowledges that it is satisfied with the form and substance
of this Agreement.
10.5 Indemnification. Banks agree to indemnify and hold
Agent harmless (to the extent not reimbursed by Borrower),
ratably according to the respective principal amounts of the
Notes then held by each of them (or if no Notes are at the time
outstanding, ratably according to the respective amounts of
their commitments hereunder), from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by, or
asserted against Agent in any way relating to or arising out of
any of the Loan Documents or any action taken or omitted by
Agent under any of the Loan Documents (including, without
limitation, attorneys' fees and other costs associated with
defending Agent against any of the foregoing), provided that no
Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent's
gross negligence or wilful misconduct. Without limitation of
the foregoing, each Bank agrees to reimburse Agent promptly
upon demand for its ratable share of any out-of-pocket expenses
(including attorneys' fees) incurred by Agent in connection
with the preparation, execution, administration, or enforcement
of, or the preservation of any rights under, the Loan
Documents, to the extent that Agent is not reimbursed for such
expenses by Borrower.
10.6 Successor Agent. Agent may resign at any time by
giving written notice thereof to Banks and Borrower and may be
removed at any time with or without cause by Banks by notice to
Borrower. Upon any such resignation or removal, Banks shall
have the right to appoint a successor agent by notice to
Borrower. If no successor agent shall have been so appointed
by Banks, and shall have accepted such appointment, within
thirty (30) days after Agent's giving of notice of its
resignation, then Agent may, on behalf of Banks, appoint a
successor agent, by notice to Borrower and Banks, which
successor agent shall be a commercial bank organized under the
laws of the United States of America or any state thereof
having a combined capital and surplus of at least $5,000,000.
Upon the acceptance of any appointment as Agent by a successor
agent, such successor agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
duties of Agent, and Agent shall be discharged from its duties
and obligations under the Loan Documents. After Agent's
resignation or removal hereunder as Agent, the provisions of
this Section 10 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under the
Loan Documents.
10.7 Benefits of Section. None of the provisions of this
Section shall inure to the benefit of Borrower or any Person
other than Banks; consequently, neither Borrower nor any other
Person shall be entitled to rely upon, or to raise as a
defense, in any manner whatsoever, the failure of any Bank to
comply with such provisions.
10.8 Change in Specified Percentage. No Bank shall assign
outright its entire interest in the Revolving Credit Facility
or the Revolving Commitment or make any participation without
the consent of the other Bank and Agent.
Section 11. General.
11.1 Definitions. As used in this Agreement, terms used
herein with initial capital letters shall have the following
meanings, unless defined elsewhere in this Agreement or unless
the context clearly indicates otherwise:
"Advance" has the meaning ascribed to the term in
Section 1.1 of this Agreement.
"Agent" has the meaning ascribed to the term on the
first page hereof.
"Agreement" means this Sixth Amended and Restated
Revolving Credit Agreement, as it may be further amended,
restated, modified and/or supplemented from time to time
in the future.
"Bank" and "Banks" have the meanings ascribed to the
terms on the first page hereof.
"Benefitted Bank" has the meaning ascribed to the
term in Section 4.2 hereof.
"Borrower" has the meaning ascribed to the term on
the first page hereof.
"Borrowing Date" means any Business Day specified in
a notice pursuant to Section 3.6 as a date on which
Borrower requests Banks to make Advances hereunder.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a legal holiday for
commercial banks in the State of Louisiana.
"Capitalized Leases" means capital leases and
subleases, as defined in the Financial Accounting
Standards Board Statement of Financial Accounting Standard
No. 13, dated November 1976, as amended.
"Collateral" means all property described in and
subject to the Collateral Documents and any and all other
property hereafter made subject to a Lien to secure the
payment and performance of the Obligations.
"Collateral Documents" means the documents listed on
Exhibit "M" annexed hereto and any and all other
documents, instruments and agreements delivered to Agent
or Banks to secure the Obligations and/or any other
obligations described in this Agreement, as the foregoing
may be amended, modified or supplemented from time to
time.
"Credit Agreement" has the meaning ascribed in the
recital paragraphs of this Agreement.
"Debt" means: (a) all obligations of Borrower or of
any of Borrower's Subsidiaries for borrowed money,
(b) all obligations of Borrower or of any of Borrower's
Subsidiaries evidenced by bonds, notes, debentures or
other similar instruments, (c) all obligations of Borrower
or of any of Borrower's Subsidiaries to pay the deferred
purchase price of property or services, except trade
accounts payable by Borrower or by any of Borrower's
Subsidiaries arising in the ordinary course of business
which are not past due by more than sixty (60) days unless
such trade accounts payable are being contested in good
faith by appropriate proceedings, (d) all obligations of
Borrower or of any of Borrower's Subsidiaries under any
Capitalized Leases, (e) all obligations of Borrower or of
any of Borrower's Subsidiaries under guaranties,
endorsements (other than for collection or deposit in the
ordinary course of business), assumptions or other
contingent obligations, in respect of, or to purchaser or
otherwise acquire, any obligation or indebtedness of
Borrower or of any of Borrower's Subsidiaries, or any
other obligations, contingent or otherwise, (f) all
obligations secured by a Lien (except trade accounts
payable by Borrower or by any of Borrower's Subsidiaries
arising in the ordinary course of business which are not
past due by more than sixty (60) days unless such trade
accounts payable are being contested in good faith by
appropriate proceedings secured by a vendor's lien)
existing on property owned by Borrower or by any of
Borrower's Subsidiaries, whether or not the obligations
secured thereby have been assumed by Borrower or by any of
Borrower's Subsidiaries or are non-recourse to the credit
of Borrower or of any of Borrower's Subsidiaries, (g) all
reimbursement obligations of Borrower or of any of
Borrower's Subsidiaries, other than performance bonds of
Borrower or of any of Borrower's Subsidiaries (whether
contingent or otherwise), relating to letters of credit,
bankers' acceptances and similar instruments, and (h) all
liabilities of Borrower or of any of Borrower's
Subsidiaries in respect of unfunded vested benefits under
any Plan; provided, however, the term "Debt" shall not
include money borrowed by Borrower or by any of Borrower's
Subsidiaries to pay premiums on insurance policies
obtained by Borrower or by any of Borrower's Subsidiaries
in the ordinary course of Borrower's or of any of
Borrower's Subsidiaries' business and shall further not
include any type of obligation of a Subsidiary to
Borrower.
"Default Rate" has the meaning ascribed to the term
in Section 3.2 hereof.
"EBIT" means, with respect to any Person for any
period, consolidated net income of such Person for such
period, plus (i) interest expense for such Person for such
period, and (ii) tax expense for such period for taxes
which have been provided for by such Person for such
period, to the extent that any of the same are deducted
from net revenues in determining such Person's
consolidated net income for such period.
"Environmental Laws" means any and all federal, state
and local laws, regulations, ordinances, orders and
requirements pertaining to health, safety or the
environment, including, without limitation, the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6901 et seq., the Clean Air Act, 42 U.S.C.
Section 7401 et seq., the Clean Water ct, 33 U.S.C.
Section 1251 et seq., the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq., the Louisiana Environmental
Quality Act, La. R.S. 30:2001, et seq., and all similar
laws, regulations and requirements of any governmental
authority or agency having jurisdiction over Borrower, any
of its Subsidiaries or any of the property or assets of
Borrower or of any of its Subsidiaries, as such laws,
regulations and requirements may be amended or supplemented
from time to time.
"Event of Default" means the occurrence of any event
described in Section 9 hereof or the occurrence of any
other event which with the lapse of time, or lapse of time
and notice to Borrower would constitute an Event of
Default.
"Existing Security" means all security previously
granted by Borrower or by one of its Subsidiaries to Banks
pursuant to the Collateral Documents and other Loan
Documents.
"First NBC" has the meaning ascribed to the term in
the recitals to this Agreement.
"FNBC LIBO Rate": with respect to each Interest
Period pertaining to a LIBO Rate Advance, the rate per
annum equal to the rate quoted on page 16 of the Telerate
screen (or such other page as may replace the LIBO page on
that service for displaying London interbank offered rates
of major banks) at approximately 11:00 a.m. New Orleans,
Louisiana time (or as soon thereafter as is practicable)
on the day that is one Business Day prior to the beginning
of such Interest Period for Eurodollar deposit instruments
issued on the first day of such Interest Period for the
number of months comprised therein and in an amount
comparable to the amount of the LIBO Rate Advance to which
such Interest Period applies. The FNBC LIBO Rate
determined by Agent with respect to a particular Interest
Period shall be fixed at such rate for the duration of
such Interest Period.
"GAAP" means generally accepted accounting
principles, applied on a consistent basis, as set forth in
Opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants and/or
in statements of the Financial Accounting Standards Board
and/or their respective successors and which are
applicable in the circumstances as of the date in
question. Accounting principles are applied on a
"consistent basis" when the accounting principles observed
in a current period are comparable in all material
respects to those accounting principles applied in a
preceding period.
"Hazardous Substance" has the meaning specified in
any applicable Environmental Law and means any substance,
product, waste, pollutant, material, chemical,
contaminant, constituent or other material which is or
becomes listed, regulated or addressed under any
Environmental Law, including, without limitation,
asbestos, petroleum and polychlorinated biphenyls.
"Interest Expense" means with respect to any Person
for any period, interest expense for such Person for such
period, determined in accordance with GAAP.
"Interest Period" means with respect to any LIBO Rate
Advance:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may
be, with respect to such LIBO Rate Advance and
ending one, two, or three months thereafter, as
selected by Borrower in its notice to Agent of
borrowing or notice of conversion, as the case
may be, given with respect thereto; and
(ii) thereafter, each period commencing on the day
immediately following the last day of the next
preceding Interest Period applicable to such
LIBO Rate Advance and ending one, two or three
months thereafter, as selected by Borrower by
notice to Agent not less than one (1) Business
Day prior to the last day of the then current
Interest Period with respect thereto; and
provided, that:
(x) if any Interest Period would otherwise end
on a day which is not a Business Day, that
Interest Period shall be extended to the
next succeeding Business Day unless the
result of such extension would be to carry
such Interest Period into another calendar
month in which event such Interest Period
shall end on the immediately preceding
Business Day;
(y) any Interest Period which, with respect to
a LIBO Rate Advance under the Revolving
Credit Facility, would otherwise extend
beyond the Termination Date shall end on
the Termination Date; and
(z) any Interest Period that begins on the last
Business Day of a calendar month (or on a
day for which there is no numerically
corresponding day in the calendar month at
the end of such Interest Period) shall end
on the last Business Day of a calendar
month.
"LC Commitment" means the lesser of (a) FIVE MILLION
AND NO/100 DOLLARS ($5,000,000.00) or (b) the Revolving
Commitment at the time in question.
"Letters of Credit" has the meaning ascribed to the
term in Section 1.1 hereof.
"LIBO Rate" means with respect to each day during an
Interest Period for a LIBO Rate Advance, an interest rate
per annum equal to the sum of (a) one and one-half percent
(1.50%) plus (b) the FNBC LIBO Rate.
"LIBO Rate Advance" means an Advance made under the
Revolving Credit Facility which bears interest at the LIBO
Rate.
"Lien" means any lien, judgment, mortgage, deed of
trust, security interest, tax lien, financing statement,
pledge, charge, hypothecation, assignment, preference,
priority or other encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional
sale or title retention agreement), whether arising by
contract, operation of law or otherwise; provided,
however, that the term "Lien" shall exclude any statutory
mechanic's or laborer's lien arising in the ordinary
course of the business of Borrower and its Subsidiaries
which is cancelled or bonded within sixty (60) days of its
recordation.
"Loan Documents" means, collectively, this Agreement,
the Notes, the Collateral Documents, and any and all other
documents, instruments and agreements executed in
connection with the Advances, as the foregoing may be
modified, supplemented and/or amended from time to time.
"Net Worth" means the sum of the common stock, addi-
tional paid-in capital and retained earnings accounts of
Borrower and its Subsidiaries on a consolidated basis, as
shown in conformity with GAAP on its balance sheet at the
time of such determination, less the amount of any
treasury stock shown thereon and less the amount of any
intangible assets (such as patents, trademarks, copyrights
or goodwill) shown thereon.
"New Collateral Documents" has the meaning ascribed
to the term in Section 7.4 of this Agreement.
"Notes" has the meaning ascribed to the term in
Section 2.1 of this Agreement.
"Obligations" means all obligations, indebtedness and
liabilities of Borrower to Agent and/or either or both of
Banks, now existing or hereafter arising, whether direct,
indirect, related, unrelated, fixed, contingent,
liquidated, unliquidated, joint, several, or joint and
several, including, without limitation, the obligations,
indebtedness, and liabilities of Borrower under this
Agreement, the Notes and the other Loan Documents, and all
interest accruing thereon and all attorneys' fees and
other expenses incurred in the enforcement or collection
thereof.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to all or any of its functions
under ERISA.
"Permitted Liens" has the meaning ascribed to the
term in Section 6.11 hereof.
"Person" means any individual, corporation, business,
trust, association, company, partnership, joint venture,
governmental authority or other entity.
"Plan" has the meaning ascribed to the term in
Section 5.10 hereof.
"Prime Rate" has the meaning ascribed to the term in
Section 3.3 hereof.
"Prime Rate Advance" means an Advance made under the
Revolving Credit Facility which bears interest at the
Prime Rate.
"Prior Notes" means, collectively, the Revolving
Notes (as defined in the Revised Credit Agreement)
executed by Borrower in favor of Banks pursuant to the
Revised Credit Agreement or any other notes evidencing the
Revolving Credit Facility which were executed by Borrower
in favor of Banks pursuant to any predecessor agreement
among Borrower and Banks.
"Real Property" means the property described on
Exhibit "N" hereto, whether owned by Borrower or by one of
its Subsidiaries.
"Revised Credit Agreement" has the meaning ascribed
in the recital paragraphs of this Agreement.
"Revolving Commitment" means TWENTY MILLION AND
NO/100 DOLLARS ($20,000,000.00), as such amount may be
reduced by Borrower in accordance with Section 4.4 of this
Agreement.
"Revolving Credit Facility" has the meaning ascribed
to the term in Section 1.1 of this Agreement.
"Solid Waste" has the meaning specified in any
applicable Environmental Law.
"Subsidiary" means, as to any Person, a corporation,
partnership or other entity of which shares of stock or
other ownership interests having ordinary voting power
(other than stock or such other ownership interests having
such power only by reason of the happening of a
contingency) to elect a majority of the board of directors
or other managers of such corporation, partnership or
other entity, or the management of which is otherwise
controlled, directly or indirectly through one or more
intermediaries, or both, by such Person.
"Termination Date" means December 31, 1999.
"UCC" means the Uniform Commercial Code, as in effect
from time to time in each state where any of the
Collateral is located or otherwise has a situs; provided,
however, if the Uniform Commercial Code in no particular
state is ascertainable or applicable, UCC shall mean the
Uniform Commercial Code, as in effect from time to time in
the State of Louisiana.
"Unused Commitment" has the meaning ascribed to the
term in Section 1.1 hereof.
"Whitney" has the meaning ascribed to the term in the
recitals to this Agreement.
All definitions contained in this Agreement are equally
applicable to the singular and plural forms of the terms
defined. The words "hereof," "herein" and "hereunder" and
words of similar import referring to this Agreement refer to
this Agreement as a whole and not to any particular provision
of this Agreement. Unless otherwise specified, all Section
references pertain to this Agreement.
11.2 Financial Terms. Unless otherwise defined or the
context otherwise requires, all financial and accounting terms
shall be defined under GAAP.
11.3 Delay. No delay on the part of Banks, Agent or any
holder of any one or more of the Notes, in the exercise of any
power or right shall operate as a waiver thereof, nor shall any
single or partial exercise of any power or right preclude other
or further exercise thereof, or the exercise of any other power
or right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
11.4 Notices. All notices, statements, requests and
demands given to or made under any party hereto in accordance
with the provisions of this Agreement shall be deemed to have
been given or made when deposited in the mail, postage pre-
paid, registered or certified mail return receipt requested
addressed:
If to Banks:
First National Bank of Commerce
201 St. Charles Avenue
New Orleans, Louisiana 70170
Attention: Mr. J. Charles Freel, Jr.
Senior Vice President
and
Whitney National Bank
228 St. Charles Avenue
New Orleans, Louisiana 70130
Attention: Mr. Harry C. Stahel
Senior Vice President
With a copy to:
William H. Hines, Esq.
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170
If to Agent:
First National Bank of Commerce
201 St. Charles Avenue
New Orleans, Louisiana 70170
Attention: Mr. J. Charles Freel, Jr.
Senior Vice President
With a copy to:
William H. Hines, Esq.
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170
If to Borrower:
Gulf Island Fabrication, Inc.
583 Thompson Road
Houma, Louisiana 70363
Attention: Kerry J. Chauvin, President
or
Gulf Island Fabrication, Inc.
P.O. Box 310
Houma, Louisiana 70361
Attention: Kerry J. Chauvin, President
With respect to notices to Borrower, such notices shall,
if sent by overnight courier or other means requiring a street
address, be sent to the first address provided above. If such
notices are sent by means not requiring a street address, such
notices shall be sent to the second address provided above.
11.5 Expenses. Whether or not the Advances are made,
Borrower agrees to reimburse Banks and Agent, upon demand, for
all expenses (including reasonable attorneys' fees and legal
expenses incurred by Banks and/or Agent) incurred by Banks
and/or Agent in the preparation, negotiation and/or execution
of the Loan Documents, and in enforcing the obligations of
Borrower hereunder or under any of the other Loan Documents,
and to pay, and save Banks and Agent harmless from all
liability for, any stamp or other taxes which may be payable
with respect to the execution or delivery of this Agreement,
the execution, delivery or issuance of the Notes, and/or the
execution, delivery and recordation of the other Loan
Documents, which obligations of Borrower shall survive any
termination of this Agreement.
11.6 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
11.7 Counterparts. This Agreement may be executed in as
many counterparts as may be deemed necessary or convenient, and
by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed an original but all
such counterparts shall constitute but one and the same instru-
ment.
11.8 Law. The Loan Documents, and each of them, shall be
contracts made under and governed by the laws of the State of
Louisiana.
11.9 Successors. This Agreement shall be binding upon
Borrower, Banks, Agent and their respective successors and
assigns, and shall inure to the benefit of Borrower, Banks and
the successors and assigns of Banks and Agent. Borrower shall
not assign its rights, obligations or duties hereunder or under
any of the Loan Documents without the prior written consent of
Banks. Banks shall give Borrower written notice of any assign-
ment of its interests hereunder to any other Person, upon which
assignment Borrower shall perform all of its respective
obligations under the Loan Documents in favor of Banks'
assignee(s) as though such assignee(s) were originally a party
or parties to this Agreement.
11.10 Amendments. No amendment or waiver of any provision
of this Agreement or consent to any departure therefrom by
Borrower, Banks or Agent shall be effective unless the same
shall be in writing and signed by Borrower, Banks and Agent
and, in the case of a waiver or consent, such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given.
11.11 Entire Agreement. This Agreement constitutes the en-
tire agreement between the parties and supersedes any and all
prior agreements with respect to the transactions contemplated
hereby.
11.12 Conflicts. This Agreement is in addition to and
supplements the provisions of the other Loan Documents. To the
extent that the provisions of this Agreement are in conflict
with, and not merely in addition to, the provisions of the
other Collateral Documents, the provisions of this Agreement
shall govern.
IN WITNESS WHEREOF, the parties hereto and intervenors
herein have caused this Agreement to be executed by their
respective officers thereunto duly authorized effective as of
the date first written above.
BORROWER:
GULF ISLAND FABRICATION, INC.
By: /s/ Kerry J. Chauvin
----------------------------
Kerry J. Chauvin, President
BANKS:
FIRST NATIONAL BANK OF COMMERCE
By: /s/ J. Charles Freel, Jr.
-----------------------------
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: /s/ Harry C. Stahel
---------------------------
Harry C. Stahel,
Senior Vice President
AGENT:
FIRST NATIONAL BANK OF COMMERCE
By: /s/ J. Charles Freel, Jr.
---------------------------
J. Charles Freel, Jr.,
Senior Vice President
INTERVENTION
NOW INTO THESE PRESENTS COMES Dolphin Services, Inc.,
which hereby reaffirms and ratifies its obligations under those
Collateral Documents (as listed on Exhibit "M" hereto) to which
it is a party, whether directly or as successor by merger to
Dolphin Sales & Rentals, Inc.
DOLPHIN SERVICES, INC.
By: /s/ Kerry J. Chauvin
-----------------------------
Kerry J. Chauvin, President
EXHIBITS
A. First NBC's form of Application for Stand-By Letter of
Credit
B. $10,000,000.00 Revolving Promissory Note made payable to
the order of First NBC
C. $10,000,000.00 Revolving Promissory Note made payable to
the order of Whitney
D. Third Amendment to Collateral Pledge Agreement and Receipt
(Possessory Collateral Security Agreement)(Borrower)
E. Third Amendment to Collateral Assignment of Leases and
Rents (Borrower)
F. Third Amendment to Commercial Security Agreement
(Borrower)
G. First Amendment to Pledge of Collateral Mortgage Note
(Dolphin Services)
H. First Amendment to Pledge of Collateral Mortgage Note
(Dolphin Services, as successor by merger to Dolphin
Sales)
I. First Amendment to Commercial Security Agreement (Dolphin
Services)
J. First Amendment to Commercial Pledge and Security
Agreement
K. Incumbency Certificates
L. Borrower's Default and Warranty Certificate
M. List of Collateral Documents
N. Description of Real Property
SCHEDULES
1. List of Borrower's Litigation
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 410
<SECURITIES> 0
<RECEIVABLES> 22,678
<ALLOWANCES> 70
<INVENTORY> 1,562
<CURRENT-ASSETS> 27,534
<PP&E> 40,904
<DEPRECIATION> 15,053
<TOTAL-ASSETS> 53,947
<CURRENT-LIABILITIES> 13,250
<BONDS> 0
0
0
<COMMON> 1,000
<OTHER-SE> 23,483
<TOTAL-LIABILITY-AND-EQUITY> 53,947
<SALES> 30,224
<TOTAL-REVENUES> 30,224
<CGS> 25,359
<TOTAL-COSTS> 26,361
<OTHER-EXPENSES> 236
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 236
<INCOME-PRETAX> 3,627
<INCOME-TAX> 0
<INCOME-CONTINUING> 3,627
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,627
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
NEWS RELEASE
For further information contact:
Kerry J. Chauvin Joseph P. Gallagher,III
Chief Executive Officer Chief Financial Officer
(504) 872-2100 (504) 872-2100
===============================================================================
FOR IMMEDIATE RELEASE
WEDNESDAY, APRIL 30, 1997
GULF ISLAND FABRICATION, INC
REPORTS FIRST QUARTER 1997 EARNINGS
Houma, LA - Gulf Island Fabrication, Inc. (NASDAQ: GIFI)
today reported pro forma net income after taxes of $2.2 million
($5.57 per share) on revenue of $30.2 million for its first
quarter ended March 31, 1997, compared to pro forma net income
after taxes of $485,000 ($.12 per share) on revenues of $19.5
million for the first quarter of 1996.
Pro forma net income gives effect to federal and state
income taxes as if the company had been a C Corporation for tax
purposes during the entire quarter. The company converted from
S Corporation status on April 4, 1997.
The company completed its initial public offering on April
9, 1997, in which 2.3 million shares were issued. The shares
outstanding for the remaining quarters of 1997 will approximate
5.9 million.
Excluding the results of its subsidiary, Dolphin Services,
Inc., which was purchased on Jan. 2, 1997, the parent company
had net income of $1.8 million ($.46 per share) on revenues of
$22.6 million for the quarter. At March 31, the consolidated
companies had a revenue backlog of $87 million and a labor
backlog of 1.3 million manhours left to work.
Kerry Chauvin, Gulf Island Fabrication, Inc.'s president
and chief executive officer noted, "The increase in our first
quarter earnings this year over last year's first quarter
results primarily from strong improvement in direct labor
pricing and the greater volume of direct labor hours worked.
The steady improvement of our performance over the past several
quarters, however, has been not only because of higher pricing
and volume but also because of our on-going internal focus on
productivity increases established through capital
improvements, equipment purchases and labor-saving procedures
which contribute to higher revenues received per actual direct
labor hour expended. We are also continuing to integrate the
Dolphin companies into Gulf Island Fabrication and a portion of
Dolphin's labor is being redeployed into Gulf Island
Fabrication's more profitable fabrication services."
Gulf Island Fabrication is a leading fabricator of
offshore drilling and production platforms and other
specialized structures used in the development and production
of offshore oil and gas reserves.
Consolidated Statement of Income
(Unaudited)
(In thousands, except per share amounts)
First Quarter Ended First Quarter Ended
March 31, 1997 March 31,1996
---------------------------------- -------------------
Gulf Island Dolphin Consolidated Gulf Island
--------- ------- ------------
Revenue $ 22,589 $ 7,635 $ 30,224 $ 19,504
Cost of revenue
(excluding
depreciation) 18232 6516 24748 17827
Depreciation 495 115 610 331
Gross profit 3862 1004 4866 1346
General and administrative
expenses 708 295 1003 512
Operating income 3154 709 3863 834
Interest expense, net 226 10 236 52
Net income $ 2,928 $ 699 $ 3,627 $ 782
Pro forma provision
income taxes/a 1113 266 1379 297
Pro forma net
income/a $ 1,815 $ 433 $ 2,248 $ 485
Pro forma net income
per share/a $ 0.46 $ 0.11 $ 0.57 $ 0.12
Average common
shares/b 3927 3927 3927 3927
/a: Pro forma information gives effect to federal and state
income taxes as if the Company had been a C Corporation for tax
purposes during the entire first quarter.
/b: The Company completed its initial public offering on April
9, 1997 and the shares outstanding for the remaining quarters
of 1997 will approximate 5.9 million.
