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 SEPTEMBER 30, 1998
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
incorporation or organization) Identification No.)
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 ___X___ No_______
The number of shares of the Registrant's common stock, no par value per
share, outstanding at November 9, 1998 was 11,638,400.
GULF ISLAND FABRICATION, INC.
I N D E X
Page
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets
at September 30, 1998 (unaudited) and
December 31, 1997 1
Consolidated Statements of Income
for the Three and Nine Months Ended
September 30, 1998 and 1997 (unaudited) 2
Consolidated Statement of Changes in
Shareholders' Equity for the Nine Months
Ended September 30, 1998 (unaudited) 3
Consolidated Statements of Cash Flows
for the Nine Months Ended
September 30, 1998 and 1997 (unaudited) 4
Notes to Consolidated Financial Statements 5-7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8-10
PART II OTHER INFORMATION
Item 5. Other Information 11
Item 6. Exhibits and Reports on Form 8-K 11
SIGNATURES 12
EXHIBIT INDEX E-1
GULF ISLAND FABRICATION, INC.
CONSOLIDATED BALANCE SHEETS
(Unaudited)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
___________ _____________
(in thousands)
ASSETS
<S> <C> <C>
Current assets:
Cash $ 3,905 $ 6,879
Contracts receivable, net 33,047 21,204
Retainage 6,910 1,556
Costs and estimated earnings in excess of billings
on uncompleted contracts 5,604 903
Prepaid expenses 597 914
Inventory 1,184 968
Recoverable income taxes - 321
___________ __________
Total current assets 51,247 32,745
Property, plant and equipment, net 41,816 34,505
Excess of cost over fair value of net assets
acquired less accumulated amortization of
$ 210,275 at September 30, 1998 3,907 -
Other assets 497 428
___________ __________
Total assets $ 97,467 $ 67,678
=========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 12,459 $ 3,368
Billings in excess of costs and estimated
earnings on uncompleted contracts 10,376 5,925
Accrued employee costs 4,105 3,068
Accrued expenses 2,104 2,829
Income taxes payable 1,081 -
___________ __________
Total current liabilities 30,125 15,190
Deferred income taxes 1,748 1,878
___________ __________
Total liabilities 31,873 17,068
Shareholders' equity:
Preferred stock, no par value, 5,000,000 shares
authorized, no shares issued and outstanding - -
Common stock, no par value, 20,000,000 shares
authorized, 11,638,400 and 11,600,000 shares
issued and outstanding at September 30, 1998
and December 31, 1997, respectively 4,162 4,133
Additional paid-in capital 35,124 34,865
Retained earnings 26,308 11,612
___________ __________
Total shareholders' equity 65,594 50,610
___________ __________
$ 97,467 $ 67,678
=========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
GULF ISLAND FABRICATION, INC.
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
___________________ _____________________
1998 1997 1998 1997
(in thousands, except per share data)
<S> <C> <C> <C> <C>
Revenue $ 51,866 $ 36,311 $ 149,421 $ 101,556
Cost of revenue 42,036 29,325 121,513 83,282
________ ________ _________ _________
Gross profit 9,830 6,986 27,908 18,274
General and administrative expenses 1,458 1,115 4,532 3,262
________ ________ _________ _________
Operating income 8,372 5,871 23,376 15,012
Other expense (income):
Interest expense 19 16 76 324
Interest income (94) (77) (183) (112)
________ ________ _________ _________
(75) (61) (107) 212
________ ________ _________ _________
Income before income taxes 8,447 5,932 23,483 14,800
Income taxes 3,135 2,234 8,787 4,210
Cumulative deferred tax provision - - - 1,144
________ ________ _________ _________
Net income $ 5,312 $ 3,698 $ 14,696 $ 9,446
======== ======== ========= =========
Pro forma data (Note 3):
Income before income taxes $ 8,447 $ 5,932 $ 23,483 $ 14,800
Income taxes 3,135 2,234 8,787 4,210
Pro forma income taxes
related to operations as S Corporation - - - 1,379
________ ________ _________ _________
Pro forma net income $ 5,312 $ 3,698 $ 14,696 $ 9,211
Pro forma per share data: ======== ======== ========= =========
Pro forma basic earnings per share $ 0.46 $ 0.32 $ 1.26 $ 0.89
======== ======== ========= =========
Pro forma diluted earnings per share $ 0.45 $ 0.32 $ 1.25 $ 0.89
======== ======== ========= =========
Pro forma weighted-average shares 11,638 11,600 11,627 10,310
Effect of dilutive securities: employee stock options 59 89 84 43
________ ________ _________ _________
Pro forma adjusted weighted-average shares 11,697 11,689 11,711 10,353
======== ======== ========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
GULF ISLAND FABRICATION, INC.
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY (UNAUDITED)
<TABLE>
<CAPTION>
Additional Total
Common Stock Paid-In Retained Shareholders'
Shares Amount Capital Earnings Equity
__________ _______ ________ ________ ________
(in thousands, except share data)
<S> <C> <C> <C> <C> <C>
Balance at January 1, 1998 11,600,000 $ 4,133 $ 34,865 $ 11,612 $ 50,610
Exercise of stock options 38,400 29 259 - 288
Net income - - - 14,696 14,696
__________ _______ ________ _______ _______
Balance at September 30, 1998 11,638,400 $ 4,162 $ 35,124 $ 26,308 $ 65,594
========== ======= ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
GULF ISLAND FABRICATION, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
Nine months ended
September 30,
1998 1997
___________ _________
(in thousands)
<S> <C> <C>
Cash flows from operating activities:
Net income $ 14,696 $ 9,446
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 2,880 2,104
Amortization 210 -
Deferred income taxes (331) 1,218
Changes in operating assets and liabilities:
Contracts receivable (3,939) (7,307)
Retainage (4,109) 790
Costs and estimated earnings in excess of billings
on uncompleted contracts (3,541) (1,972)
Prepaid expenses and other assets 597 967
Inventory (371) -
Accounts payable and accrued expenses 4,456 4,649
Income taxes payable 1,335 988
Billings in excess of costs and estimated earnings
on uncompleted contracts 2,006 2,943
___________ _________
Net cash provided by operating activities 13,889 13,826
Cash flows from investing activities:
Capital expenditures, net (8,577) (12,787)
Payment for purchase of Dolphin Services, net of cash acquired - (5,803)
Payment for purchase of Southport, net of cash acquired (5,922) -
Other (52) 253
___________ _________
Net cash used in investing activities (14,551) (18,337)
Cash flows from financing activities:
Borrowings against notes payable 8,000 41,900
Principal payments on notes payable (10,600) (48,659)
Proceeds from initial public offering - 31,328
Proceeds from exercise of stock options 288 -
Dividends - (16,641)
___________ _________
Net cash provided by (used in) financing activities (2,312) 7,928
___________ _________
Net increase (decrease) in cash (2,974) 3,417
Cash at beginning of period 6,879 1,357
___________ _________
Cash at end of period $ 3,905 $ 4,774
=========== =========
Supplemental cash flow information:
Interest paid $ 72 $ 381
=========== =========
Income taxes paid $ 7,773 $ 2,660
=========== =========
</TABLE>
The accompanying notes are an integral part of these statements.
GULF ISLAND FABRICATION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
FOR THE THREE MONTH AND NINE MONTH PERIODS
ENDED SEPTEMBER 30, 1998 AND 1997
NOTE 1 - ORGANIZATION AND SIGNIFICANT ACCOUNTING PRINCIPLES
Gulf Island Fabrication, Inc. ("Gulf Island"), located in Houma,
Louisiana, 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. The Company also offers offshore
interconnect pipe hook-up, inshore marine construction, and steel warehousing
and sales. With the acquisition of Southport, Inc., effective January 1, 1998,
the Company also provides the fabrication of living quarters for offshore
platforms for the oil and gas industry. Gulf Island's principal markets are
concentrated in the offshore regions of the Gulf of Mexico. The consolidated
financial statements include the accounts of Gulf Island and its wholly owned
subsidiaries (collectively "the Company"). All significant intercompany
balances and transactions have been eliminated in consolidation.
Effective January 1, 1998, the Company acquired all of the outstanding
shares of Southport, Inc. and its wholly owned subsidiary Southport
International, Inc. (collectively "Southport"). Southport specializes in the
fabrication of living quarters for offshore platforms. The purchase price was
$6.0 million cash, plus contingent payments of up to an additional $5.0 million
based on Southport's net income over a four-year period ending December 31,
2001. The purchase price plus $130,000 of direct expenses exceeded the fair
value of the assets acquired of $12.3 million and liabilities assumed of $10.3
million with the acquisition being accounted for under the purchase method of
accounting. Goodwill of $4.1 million is being amortized over 15 years on a
straight-line basis. Accordingly, the operations of Southport are included in
the Company's consolidated operations from January 1, 1998.
The information presented at September 30, 1998 and for the three months
and nine months ended September 30, 1998 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 at September 30, 1998 and the results of its
operations for the three months and nine months ended September 30, 1998 and
1997, and its cash flows for the nine months ended September 30, 1998 and 1997.
The results of operations for the three months and nine months ended September
30, 1998 are not necessarily indicative of the results that may be expected for
the year ending December 31, 1998.
In the opinion of management, the financial statements included herein
have been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
Registrant Company's annual report on Form 10-K for the year ended December
31, 1997.
Certain items included in the financial statements for the periods ended
December 31, 1997 and September 30, 1997 have been reclassified to conform to
the September 30, 1998 financial statement presentation.
NOTE 2- ACQUISITION OF SOUTHPORT, INC.
The following unaudited pro forma information presents a summary of
consolidated results of operations of the Company and Southport as if the
acquisition had occurred on January 1, 1997. Pro forma adjustments include (1)
adjustments for the increase in interest expense as a result of the
acquisition, (2) additional depreciation on property, plant and equipment, (3)
adjustments to record the amortization of cost in excess of fair value of net
assets acquired, (4) the elimination of certain general and administrative
expenses, and (5) the related tax effects. The pro forma income tax
presentation (Note 3) is included.
<TABLE>
<CAPTION>
Three months Nine months
Ended Ended
September 30, September 30,
1997 1997
(IN THOUSANDS, EXCEPT PER SHARE DATA)
_____________________________________
<S> <C> <C>
Revenue............................................ $ 40,979 $115,951
Pro forma net income............................... 4,099 9,798
Pro forma basic and diluted net income per share... 0.36 .95
</TABLE>
NOTE 3- PRO FORMA PER SHARE DATA
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. The pro forma income statement presentation reflects
income taxes related to operations as an S Corporation as if the Company had
been subject to federal and state income taxes since January 1, 1997 using an
assumed effective tax rate of approximately 38%. Further, the pro forma
weighted-average share calculations for 1997 include the assumed issuance of
additional shares sufficient to pay the distributions made to shareholders in
connection with the Company's Initial Public Offering, to the extent such
distributions exceeded net income for the year ended December 31, 1996.
NOTE 4 - STOCK SPLIT
On October 6, 1997, the Company's Board of Directors authorized a two-for-
one stock split effected in the form of a stock dividend that became effective
on October 28, 1997 to shareholders of record on October 21, 1997. All share
and per share data included in the financial statements prior to the stock
split have been restated to reflect the stock split.
NOTE 5 - CONTINGENCIES
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 have a material adverse effect
on the financial position or results of operations of the Company. 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.
NOTE 6 - NOTES PAYABLE
Effective August 21, 1998, the Company's existing bank credit facility was
amended and restated in order, among other reasons, to extend the maturity date
to December 31, 2000. The credit facility 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 1.5%. The Company is required to maintain certain balance sheet
and cash flow ratios. The Company pays a fee quarterly of three-eighths of one
percent per annum on the weighted-average unused portion of the line of
credit. At September 30, 1998, there were no borrowings outstanding under the
credit facility.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Effective January 1, 1998, the Company acquired all of the outstanding
stock of Southport, Inc. and its wholly owned subsidiary Southport
International, Inc. (collectively, "Southport"). The acquisition is being
accounted for under the purchase method of accounting, and accordingly, the
operations of Southport are included in the Company's consolidated operations
starting January 1, 1998. The Statement of Income included in the unaudited
financial statements presents the consolidated results of operations of the
Company for the three months and nine months ended September 30, 1998, compared
to the results of operations of the Company for the three months and nine
months ended September 30, 1997, without giving effect to the Southport
acquisition.
The Company's revenue for the three month and nine month periods ended
September 30, 1998 was $51.9 million and $149.4 million, an increase of 42.8%
and 47.1%, respectively, compared to $36.3 million and $101.6 million in
revenue for the three month and nine month periods ended September 30, 1997.
Revenue increased as a result of the Southport Acquisition, the on-going labor
recruiting and retention efforts by the Company which generated an increase in
the volume of direct labor hours applied to contracts, and the implementation
of productivity enhancing equipment for the three month and nine month periods
ended September 30, 1998, compared to the same periods in 1997.
The increased employment levels and the utilization of labor saving
equipment enabled the Company to increase volume and produce relatively stable
or slightly improved profit margins and generate a gross profit of $9.8 million
(19.0% of revenue) and $27.9 million (18.7% of revenue) for the three and nine
month periods ended September 30, 1998, respectively, compared to the $7.0
million (19.2% of revenue) and $18.3 million (18.0% of revenue) of gross profit
for the three and nine month periods ended September 30, 1997.
The Company's general and administrative expenses were $1.5 million for
the three month period ended September 30, 1998 and $4.5 million for the nine
month period ended September 30, 1998. This compares to $1.1 million for the
three month period ended September 30, 1997 and $3.3 million for the nine month
period ended September 30, 1997. These increases of $400,000 and $1.2 million,
respectively, were caused by additional general and administrative costs
associated with the operating activities of Southport, additional costs
associated with increased production levels and public company reporting
requirements.
The Company had net interest income of $75,000 for the three months ended
September 30, 1998 and $107,000 for the nine months ended September 30, 1998,
compared to net interest income of $61,000 and net interest expense of $212,000
for the three months and nine months ended September 30, 1997. The Company
completed its Initial Public Offering in April 1997 and used the proceeds to
eliminate all of its outstanding bank debt and provide working capital to the
Company. Since that time, the Company's cash provided by operations has
increased to a level which has allowed the Company to make capital expenditures
and acquisitions with little or no debt.
The Company converted from S Corporation to C Corporation status on April
4, 1997. Pro forma income taxes and pro forma net income give effect to
federal and state income taxes as if the Company had been taxed as a C
Corporation during the three and nine month periods ended September 30, 1997.
Despite the Company's performance for the three month and nine month
periods, the Company expects that the downturn in the industry brought on by
continued low oil prices and a downturn in natural gas prices will impact the
Company's ability to maintain these high levels of performance beyond year end.
The dollar value of projects available in the market is significantly below
last year's levels and the Company's backlog is being similarly eroded.
Competition for available projects has become more intense and future margins
will likely be diminished. Cost reduction measures will be undertaken as
appropriate to meet these conditions. In the longer term, demand for the
Company's services will continue to depend largely upon prices for oil and gas,
which are difficult to predict. At some point however, it is expected that
these prices should recover as supplies are reduced and the Company's customers
are forced to replace them.
LIQUIDITY AND CAPITAL RESOURCES
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 $13.9 million for the nine months ended
September 30, 1998 with working capital increasing to $21.1 million. Net cash
used in investing activities for the nine months ended September 30, 1998 was
$14.6 million, of which $5.9 million related to the purchase of Southport and
$8.7 million related to capital expenditures made during the period.
Approximately 65% of the Company's capital expenditures were for the purchase
of three new Manitowoc cranes which replaced three cranes previously rented.
The remaining 35% of the Company's capital expenditures were for improvements
to its production facilities and for equipment designed to increase the
capacity of its facilities and the productivity of its labor force.
Net cash used in financing activities was $2.3 million for the nine months
ended September 30, 1998. The Company received $288,000 from the proceeds of
exercised stock options and made $2.6 million net payments on the Company's
Bank Credit Facility.
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 1/2 %. The Revolver matures December 31, 2000 and is
secured by a mortgage on the Company's real estate, equipment and fixtures. At
September 30, 1998 the Company had no outstanding borrowings under the credit
facility.
Capital expenditures for the remaining three months of 1998 are estimated
to be approximately $8.2 million, including the purchase of two additional new
Manitowoc crawler cranes (which will replace two rental cranes), improvements
to the west yard fabrication area and various other fabrication equipment
purchases and facility expansions. On November 6, 1998 the Company acquired
for $1.15 million the property that it's wholly-owned subsidiary,
Southport,Inc., is located on. The Company also has an agreement to purchase,
for approximately $750,000, property which is adjacent to its east yard and
across the Navigation Canal from its west yard. Management believes that 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 future acquisitions that may require additional equity or debt
financing.
YEAR 2000 ISSUES
The Problem. Year 2000 issues result from the past practice in the
computer industry of using two digits rather than four when coding the year
portion of a date. This practice can create breakdowns or erroneous
results when computers and processors embedded in other equipment perform
operations involving dates later than December 31, 1999.
The Company's State of Readiness. The Company has assessed the Year
2000 compliance of its information technology systems and has purchased
software and hardware that it believes will be adequate to upgrade all of
these systems to Year 2000 compliance. The Company has also surveyed its
significant non-information technology equipment for Year 2000 issues.
While the Company uses several such items of equipment that are significant
to its operations (such as automated welding and cutting equipment) none of
the automated functions of this equipment are date sensitive and the
Company believes that none of the equipment will require replacement or
modification for Year 2000 compliance.
The Company does not have any significant suppliers or customers whose
information technology systems directly interface with that of the Company.
Nevertheless, as part of its assessment of its state of readiness, the
Company is surveying its suppliers and customers for Year 2000 compliance.
To date, the Company has received replies from approximately 71% of the
suppliers that it has contacted, all of which (with insignificant
exceptions) have indicated that they have taken appropriate steps to
achieve Year 2000 compliance or have plans to do so. The Company has only
recently begun its survey of customers and does not yet have a significant
response.
Costs. Because the Company's information technology systems have
been regularly upgraded and replaced as part of the Company's ongoing
efforts to maintain high-grade technology and because the Company is not
heavily dependent on non-information technology equipment that is date
sensitive, the Company's Year 2000 compliance costs are expected to be
relatively low. Recently the Company has incurred $77,000 to purchase
software and hardware to upgrade its information technology systems and
management does not believe that significant additional costs will be
required for Year 2000 compliance. There can be no guarantee, however,
that actual costs will not exceed that amount.
Risks. While the Company believes that it has taken reasonable steps
to assess its internal systems and prepare them for Year 2000 issues, if
those steps prove inadequate the Company's ability to estimate and bid on
new jobs and its financial and other daily business procedures could be
interrupted or delayed, any of which could have a material adverse effect
on the Company's operations. Because the Company's survey of its suppliers
and customers is not complete, the Company is not in a position to evaluate
the risk of their non-compliance. It is possible that the operations of
the Company could be adversely affected to a material extent by the non-
compliance of significant suppliers or customers.
Contingency Plan. While the Company intends to continue to monitor
Year 2000 issues, it does not currently have a contingency plan for dealing
with the possibility that its current systems may prove inadequate, nor
does the Company currently intend to develop such a plan.
FORWARD-LOOKING STATEMENTS
Statements under "Year 2000 Issues" as to the Company's beliefs and
expectations, statements in the last paragraph under "Results of
Operations" and other statements in this report and the exhibits hereto
that are not statements of historical fact are forward-looking statements.
These statements involve risks and uncertainties that include, among
others, the timing and extent of changes in the prices of crude oil and
natural gas, the timing of new projects and the Company's ability to obtain
them, competitive factors in the heavy marine fabrication industry, the
accuracy of the Company's assessment of its exposure to Year 2000 issues
and the adequacy of the steps it has taken to address those issues.
Changes in these factors could result in changes in the Company's
performance and could cause the actual results to differ materially from
those expressed in the forward-looking statements.
PART II. OTHER INFORMATION
ITEM 5. OTHER INFORMATION
On October 22, 1998 the Company announced its 1998 third quarter earnings
and related matters. The press release making this announcement is attached
hereto as Exhibit 99.1.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
10.1 Seventh Amended and Restated Revolving Credit and Term Loan
Agreement among the Company and First National Bank of Commerce
and Whitney National Bank, dated August 21, 1998 (the "Bank
Credit Facility").
27.1 Financial Data Schedule.
99.1 Press release issued by the Company on October 22, 1998
announcing its 1998 third quarter 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.
/s/ Joseph P. Gallagher, III
By:______________________________
Joseph P. Gallagher, III
Vice President - Finance,
Chief Financial Officer,
Treasurer and Secretary
(Principal Financial Officer
and Duly Authorized Officer)
DATE: NOVEMBER 12, 1998
<PAGE>
GULF ISLAND FABRICATION, INC.
EXHIBIT INDEX
Exhibit
Number DESCRIPTION OF EXHIBIT
10.1 Seventh Amended and Restated Revolving Credit and Term Loan
Agreement among the Company and First National Bank of Commerce and
Whitney National Bank, dated August 21, 1998 (the "Bank Credit
Facility").
27.1 Financial Data Schedule.
99.1 Press release issued by the Company on October 22, 1998 announcing
its 1998 third quarter earnings and related matters.
SEVENTH AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
AMONG
GULF ISLAND FABRICATION, INC.,
AS BORROWER,
DOLPHIN SERVICES, INC.
AND
SOUTHPORT, INC.,
AS EXISTING SUBSIDIARIES,
FIRST NATIONAL BANK OF COMMERCE
AND
WHITNEY NATIONAL BANK,
AS BANKS,
AND
FIRST NATIONAL BANK OF COMMERCE,
AS AGENT
DATED EFFECTIVE AS OF AUGUST 21, 1998
TABLE OF CONTENTS
Section 1. Relation to Prior Credit Arrangements 2
1.1 Revolving Credit Facility 2
1.2 Borrowing Procedure Under the Revolving Credit Facility 4
1.3 Terms and Conditions Governing Letters of Credit 4
1.4 Liability of Subsidiaries 5
1.5 Obligations Absolute 5
Section 2. Notes Evidencing Borrowings 6
2.1 Notes 6
2.2 No Novation 7
Section 3. Interest and Fees 7
3.1 Interest -- Revolving Credit Facility 7
3.2 Default Rate 8
3.3 Prime Rate 8
3.4 Origination Fee 8
3.5 Method of Calculating Interest and Fees 8
3.6 Interest Rate Options 8
Section 4. Payments, Prepayments, and Reduction or Termination of the
Revolving Credit Facility 13
4.1 Method of Payment 13
4.2 Sharing of Payments 14
4.3 Payments Without Deduction 15
4.4 Reduction of Credit 15
Section 5. Representations and Warranties of Borrower 15
5.1 Corporate Existence 16
5.2 Authorization; Validity 16
5.3 No Conflicts 16
5.4 Financial Statements 16
5.5 Litigation 17
5.6 Liens 17
5.7 Subsidiaries 17
5.8 Purpose 17
5.9 Use of Proceeds; Margin Securities 18
5.10 Compliance with ERISA 18
5.11 Consents 18
5.12 Tax Returns 18
5.13 Operation of Business 19
5.14 Rights in Properties; Liens 19
5.15 Debt 19
5.16 Disclosure 19
5.17 Registered Office; Principal Place of Business; Location of
Collateral 20
5.18 Investment Company Act 20
5.19 Other Agreements 20
5.20 Compliance with Law 21
5.21 Corporate Name 22
5.22 Collateral 22
Section 6. Borrower's Covenants 22
6.1 Financial Statements 23
6.2 Access 23
6.3 Insurance 24
6.4 Repair 24
6.5 Taxes 24
6.6 Corporate Existence 25
6.7 Merger 25
6.8 Compliance 25
6.9 Use of Proceeds 26
6.10 Financial Covenants 27
6.11 Liens 27
6.12 Debt 28
6.13 Shareholder or Employee Loans 29
6.14 Change in Business 29
6.15 Compliance with Agreements 29
6.16 Further Assurances 29
6.17 Disposition of Assets 29
6.18 Change Tax I.D. Number 30
6.19 Indemnity 30
6.20 Real Property 31
Section 7. Conditions Precedent to Extensions of Credit 31
7.1 Borrower's Resolutions 31
7.2 Subsidiaries' Resolutions 31
7.3 Notes 32
7.4 New Collateral Documents 32
7.5 Opinion 32
Section 8. Additional Conditions Precedent to Advances and/or Letters of
Credit 32
8.1 Default 33
8.2 Warranties 33
Section 9. Events of Default 33
9.1 Payment 33
9.2 Other Indebtedness 33
9.3 Other Default 33
9.4 Insolvency 34
9.5 ERISA 34
9.6 Agreements 35
9.7 Representation or Warranty 35
9.8 Remedies 35
Section 10. Agent 35
10.1 Authorization and Action 35
10.2 Agent's Reliance, Etc 36
10.3 First NBC and Affiliates 37
10.4 Bank Credit Decision 37
10.5 Indemnification 38
10.6 Successor Agent 38
10.7 Benefits of Section 39
10.8 Change in Specified Percentage 39
Section 11. General 39
11.1 Definitions 39
11.2 Financial Terms 45
11.3 Delay 46
11.4 Notices 46
11.5 Expenses 47
11.6 Severability 48
11.7 Counterparts 48
11.8 Law 48
11.9 Successors 48
11.10 Amendments 49
11.11 Entire Agreement 49
11.12 Conflicts 49
SEVENTH AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
THIS SEVENTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (the
"Agreement"), dated effective as of the 21st day of August, 1998, 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), DOLPHIN SERVICES, INC., a
Louisiana corporation ("Dolphin"), SOUTHPORT, INC., a Louisiana corporation
("Southport," and, together with Dolphin, each, an "Existing Subsidiary"
and, collectively, the "Existing Subsidiaries"), 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 Sixth
Amended and Restated Revolving Credit and Term Loan Agreement, dated
effective as of May 1, 1997 (the "Credit Agreement") which amended and
restated the then existing credit arrangements among Borrower, Banks and
Agent;
WHEREAS, Borrower, Banks and Agent desire to amend and restate their
existing credit arrangements in order, among other reasons, to extend the
maturity date thereof, to facilitate administration of such credit
arrangements and to add the Existing Subsidiaries as parties to the Credit
Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements and undertakings herein contained, Borrower, the Existing
Subsidiaries, 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 Credit Agreement and the notes issued
thereunder (together with all other notes previously issued to evidence the
Revolving Credit Facility, 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 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 Credit
Agreement or the Prior Notes, such matter or provision of the Credit
Agreement or the Prior Notes shall be deemed to be revoked. Borrower, the
Existing Subsidiaries 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 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 and its Subsidiaries, other than the Excluded Subsidiaries, 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, 2000, 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 or one of its Subsidiaries, other than the
Excluded Subsidiaries, 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 Credit Agreement or any
predecessor agreement which remain outstanding on the date hereof
(including, without limitation, that certain $60,000 stand-by letter of
credit in favor of Gray & Company, Inc., number SB-802569-001, issued at
Borrower's request on behalf of Southport on May 22, 1998), 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 and
its Subsidiaries, other than the Excluded Subsidiaries, 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. If a draw is made under a Letter of Credit issued for the
account of a Subsidiary, Borrower shall immediately reimburse Banks for the
full amount of such draw. 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. No Subsidiary shall be entitled to
actual fundings by Banks under the Revolving Commitment, and all Letters of
Credit issued on behalf of Subsidiaries shall only be issued at Borrower's
request.
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 LIBO Rate Advance to be issued under the Revolving
Credit Facility. If notice is received by Agent by 1:00 p.m., New Orleans
time, Borrower may obtain a Prime Rate Advance under the Revolving Credit
Facility on the same Business Day Borrower requests such Prime Rate Advance
by telephonic notice (to be subsequently confirmed in writing by Borrower).
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 and its Subsidiaries, other than the
Excluded Subsidiaries (which shall not be entitled to have Letters of
Credit issued in their names), 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. All such
Applications for Letters of Credit to be issued on behalf of a Subsidiary
shall be executed by an authorized officer of such Subsidiary, as
applicant, and shall also be executed by an authorized officer of Borrower,
as guarantor. 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.
1.4 LIABILITY OF SUBSIDIARIES. Although Borrower shall be the sole
entity to receive actual fundings under the Revolving Credit Commitment,
Borrower and each of its Subsidiaries, other than the Excluded
Subsidiaries, shall be liable IN SOLIDO to the Banks for all Advances made
by Banks to Borrower under this Agreement and for all obligations with
respect to Letters of Credit issued under the Revolving Credit Commitment.
Borrower shall promptly notify Agent of Borrower's creation or acquisition
of any new Subsidiary after the effective date of this Agreement and shall
cause such new Subsidiary to sign such documentation as Agent requests to
make such new Subsidiary a party to this Agreement. Until such new
Subsidiary signs the requested documentation, Banks shall not issue any
Letters of Credit on behalf of such new Subsidiary.
1.5 OBLIGATIONS ABSOLUTE. Although Borrower and its Subsidiaries,
other than the Excluded Subsidiaries, are liable IN SOLIDO for the payment
and performance of all Obligations pursuant to Section 1.4, the obligations
of each Subsidiary, other than the Excluded Subsidiaries, shall, with
respect to all Obligations under this Agreement other than the repayment of
any draws under Letters of Credit issued in such Subsidiary's name, be
deemed those of a guarantor, and the Obligations of Borrower shall, with
respect to the repayment of draws on Letters of Credit issued in a
Subsidiary's name, likewise be deemed those of a guarantor. Each party's
liability for the Obligations, whether as a primary obligor or as a
guarantor, is, however, absolute and shall not be affected by, modified or
impaired upon the happening from time to time of any event, including,
without limitation, any of the following, whether or not such event shall
occur with notice to, or the consent of, the party affected: (i) the
waiver, surrender, compromise, settlement, discharge, release or
termination of any portion of the Obligations, (ii) the bankruptcy, other
insolvency, dissolution or liquidation of any other party liable on the
Obligations, (iii) the discharge or release of any other party liable on
the Obligations from its liability to pay or perform such Obligations
(whether with Banks' consent or otherwise), (iv) the release of any
Collateral securing the Obligations, (v) Banks' taking or failing to take
any action referred to in any Loan Document, or any other documents
executed in connection therewith or evidencing any other portion of the
Obligations or (vi) any failure, omission, delay or lack of diligence on
the part of Banks in the enforcement, assertion or exercise of any right,
power or remedy conferred on Banks in any Loan Document, or any other
documents executed in connection therewith or evidencing any portion of the
Obligations, or the inability of Banks to enforce any provision of any such
documents or Obligations for any other reason, or any other act or omission
on the part of Banks.
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, 2000. 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 September 30, 1998, 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 or one of its
Subsidiaries, 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 September 30, 1998, 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 for
LIBO Rate Advances 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 and for Prime Rate Advances must be received by Agent
prior to 1:00 p.m., New Orleans time, on the Business Day for which
the Prime Rate Advance is requested, and 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 payment 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 its incorporation; 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. Upon receipt of Borrower's approval, each Subsidiary, other
than the Excluded Subsidiaries, is duly authorized and will continue to be
duly authorized to request the issuance of Letters of Credit. 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, 1997, 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, 1998, 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, 1997, there has been no material adverse
change in Borrower's financial condition. Since December 31, 1997, 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 $250,000 is subject to any Lien,
except for the Liens created pursuant to the Collateral Documents and
Permitted Liens.
5.7 SUBSIDIARIES. Other than the Excluded Subsidiaries, Borrower has
no Subsidiaries which are not parties to this Agreement.
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. 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. <section><section> 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 hereafter
arising.
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) together with all Forms 10-K, 10-Q and 8-K, a certificate of
the president or chief financial officer of Borrower, in the form of
Exhibit "K" hereto, 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;
(c) 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;
(d) 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; and
(e) 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 1.10 to 1.00;
(b) a minimum Net Worth 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 on a consolidated basis, 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 the Existing Subsidiaries.
6.15 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.
6.16 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.
6.17 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.
6.18 CHANGE TAX I.D. NUMBER. Not change, and cause Dolphin Services
not to change, its Federal Taxpayer Identification Number without giving
Agent at least sixty (60) days' prior written notice.
6.19 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
representation, 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 aforedescribed 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.
6.20 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 SUBSIDIARIES' RESOLUTIONS. Copies, duly certified by the
secretary or assistant secretary of each Subsidiary (other than the
Excluded Subsidiaries), of (a) the resolutions of such Subsidiary's Board
of Directors authorizing the borrowings hereunder and the execution and
delivery of all of the Loan Documents to which such Subsidiary 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 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 the Existing Subsidiaries
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) the Existing
Subsidiaries have full power to execute, deliver and perform its
obligations under this Agreement and the Collateral Documents to which each
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 the Existing Subsidiaries; 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
or any Subsidiary to the Banks under the terms of any note or notes,
mortgage, indenture, loan agreement or security document of Borrower or any
Subsidiary to the Banks, 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 or any
Subsidiary, 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;
9.4 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;
9.5 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;
9.6 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;
9.7 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 Subsidiary 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
9.8 REMEDIES. 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 Subsidiaries 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 Seventh 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 "L"
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 provided in Section 3.2 hereof.
"Dolphin" has the meaning provided on the first page 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 Act, 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.
"Excluded Subsidiaries" means MINDOC, L.L.C. and all foreign
sales corporations (as such term is defined in Section 922(a) of the
United States Internal Revenue Code) owned by Borrower or one of its
Subsidiaries.
"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.
"Existing Subsidiary" and "Existing Subsidiaries" have the
meanings provided on the first page hereof.
"First NBC" has the meaning provided on the first page hereof.
"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 or the Letters
of Credit, as the foregoing may be modified, supplemented and/or
amended from time to time.
"Net Worth" means the sum of the common stock, additional 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.
"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 or its Subsidiaries 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 or its
Subsidiaries under this Agreement, the Notes, the Letters of Credit
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" has the meaning provided in Section 1.
"Real Property" means the property described on Exhibit "M"
hereto, whether owned by Borrower or by one of its Subsidiaries.
"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.
"Southport" has the meaning provided on the first page hereof.
"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, 2000.
"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:
F. Rivers Lelong, Jr., 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:
F. Rivers Lelong, Jr., 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 instrument.
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, its
Subsidiaries, Banks, Agent and their respective successors and assigns, and
shall inure to the benefit of Borrower, its Subsidiaries, Banks and the
successors and assigns of Banks and Agent. Borrower and its Subsidiaries
shall not assign their 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 assignment of its interests
hereunder to any other Person, upon which assignment Borrower and its
Subsidiaries shall perform all of their 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, its
Subsidiaries, Banks or Agent shall be effective unless the same shall be in
writing and signed by Borrower, its Subsidiaries, 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 entire
agreement among 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
EXISTING SUBSIDIARIES:
DOLPHIN SERVICES, INC.
By: /S/ KERRY J. CHAUVIN
Kerry J. Chauvin, President
SOUTHPORT, INC.
By: /S/ KERRY J. CHAUVIN
Kerry J. Chauvin, Chairman
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
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. $10,000,000.00 Revolving Promissory Note made payable to the order of
Whitney
D. Fourth Amendment to Collateral Pledge Agreement and Receipt
(Possessory Collateral Security Agreement)(Borrower)
E. Fourth Amendment to Collateral Assignment of Leases and Rents
(Borrower)
F. Fourth Amendment to Commercial Security Agreement (Borrower)
G. Second Amendment to Pledge of Collateral Mortgage Note (Dolphin
Services)
H. Second Amendment to Pledge of Collateral Mortgage Note (Dolphin
Services)
I. Second Amendment to Commercial Security Agreement (Dolphin Services)
J. Second Amendment to Commercial Pledge and Security Agreement
K. Borrower's Default and Warranty Certificate
L. List of Collateral Documents
M. Description of Real Property
SCHEDULES
1. List of Borrower's Litigation
EXHIBIT A
APPLICATION FOR STAND-BY LETTER OF CREDIT AND SECURITY AGREEMENT
FIRST NATIONAL BANK OF COMMERCE
210 BARONNE STREET ___________________, LOUISIANA __________, 19______
NEW ORLEANS, LOUISIANA 70112
GENTLEMEN:
BY THIS AGREEMENT (THE "AGREEMENT"), WE APPLY FOR AND AUTHORIZE YOU TO ISSUE
YOUR IRREVOCABLE STAND-BY LETTER OF CREDIT IN FAVOR OF
____________________________________________________________(THE "BENEFICIARY")
FOR ACCOUNT OF ________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
AVAILABLE BY DRAFT(S) DRAWN AT SIGHT ON YOU IN AN AMOUNT NOT TO EXCEED
_______________U.S. DOLLARS ($ U.S.___________________________________________)
(THE "PRINCIPAL") WHEN ACCOMPANIED BY THE FOLLOWING DOCUMENT(S):
SPECIAL INSTRUCTIONS:
ANY DRAFT(S) DRAWN UNDER THE LETTER OF CREDIT MUST BE DRAWN AND PRESENTED
TOGETHER WITH ACCOMPANYING DOCUMENTATION AT YOUR OFFICE AT
__________________________________________________,LOUISIANA _______________
(THE "MAIN OFFICE") ON OR BEFORE YOUR CLOSE OF BUSINESS ON
_______________________________, 19______ (THE "EXPIRATION DATE").
IN CONSIDERATION OF YOUR ISSUING YOUR IRREVOCABLE STAND-BY LETTER OF CREDIT ON
THE TERMS SET FORTH ABOVE (THE "CREDIT"), WE HEREBY AGREE TO THE FOLLOWING
TERMS AND CONDITIONS:
1. THIS CREDIT, IN PRINCIPAL, INTEREST, COSTS AND ATTORNEY'S FEES, AND ANY
AMENDMENT, MODIFICATION, EXTENSION OR RENEWAL HEREOF, AND ANY AND ALL DEBTS,
OBLIGATIONS AND LIABILITIES OF EVERY KIND AND CHARACTER OF ANY OF US TO YOU,
WHETHER CURRENTLY EXISTING OR HEREAFTER ARISING, DIRECT OR INDIRECT, PRIMARY
OR SECONDARY, JOINT, SEVERAL OR IN SOLIDO, FIXED OR CONTINGENT, LIQUIDATED
OR UNLIQUIDATED, WHETHER ORIGINALLY PAYABLE TO YOU OR TO A THIRD PARTY AND
SUBSEQUENTLY ACQUIRED BY YOU AND WHETHER SUCH DEBTS, OBLIGATIONS OR
LIABILITIES ARE EVIDENCED BY NOTE, OPEN ACCOUNT, OVERDRAFT, ENDORSEMENT,
SURETY AGREEMENT, GUARANTEE, SECURITY AGREEMENT, PLEDGE AGREEMENT, MORTGAGE,
LOAN AGREEMENT, LETTER OF CREDIT, COMMITMENT LETTER, ASSIGNMENT OR
OTHERWISE, TOGETHER WITH ALL INTEREST, INSURANCE PREMIUMS, ATTORNEY'S FEES
AND OTHER CHARGES OF WHATEVER KIND AND NATURE UP TO THE SUM OF FIFTY MILLION
($50,000,000.00) DOLLARS
(COLLECTIVELY, THE "INDEBTEDNESS"), ARE, AND SHALL BE SECURED BY AND WE
HEREBY GRANT YOU A CONTINUING SECURITY INTEREST IN AND TO:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
AND ALL ADDITIONS THERETO AND/OR SUBSTITUTIONS THEREFOR; AND BY ALL OTHER
SECURITIES AND/OR PROPERTY OF EVERY KIND OR NATURE WHATSOEVER THAT ARE NOW
PLEDGED OR MAY HEREAFTER BE PLEDGED TO YOU BY ANY OF US FOR ANY PURPOSE,
WHETHER RELATED TO THE CREDIT OR ANY OTHER INDEBTEDNESS OR NOT, AND ALL
ADDITIONS AND/OR SUBSTITUTIONS THEREFOR, TOGETHER WITH ANY INTEREST, RIGHTS,
DIVIDENDS, DISTRIBUTIONS, NEW SECURITIES, AND ANY OTHER PROPERTY TO WHICH WE
MAY BECOME ENTITLED TO DURING THE EXISTENCE OF THIS CREDIT OR ANY OTHER
INDEBTEDNESS BY REASON OF THE OWNERSHIP OF THE PLEDGED PROPERTY; FURTHER BY
ANY AND ALL MORTGAGES, PLEDGES, SECURITY AGREEMENTS, ASSIGNMENTS OR OTHER
SECURITY GRANTED BY US TO YOU TO SECURE THE CREDIT OR ANY OTHER INDEBTEDNESS
OR THE OBLIGATIONS OR LIABILITIES OF ANY OTHER PARTY TO YOU (EXCEPT ANY
MORTGAGE OR LIEN ON AN INDIVIDUAL'S PRINCIPAL RESIDENCE OTHER THAN ANY SUCH
LIEN OR MORTGAGE CREATED EXPRESSLY OR EXPRESSLY ACKNOWLEDGED TO SECURE THIS
CREDIT AND ANY OBLIGATION OF APPLICANT(S) HERETO IN CONNECTION WITH THIS
TRANSACTION); FURTHER, BY THE PLEDGE OF ALL MONEY, NEGOTIABLE INSTRUMENTS,
COMMERCIAL PAPER, NOTES, BONDS, STOCKS, CREDITS, CHOSES IN ACTION, CLAIMS,
DEMANDS, OR ANY INTEREST OF ANY THEREOF, WHICH MAY BELONG TO OR BE OWED TO
ANY OF US AND WHICH MAY NOW OR HEREAFTER BE IN TRANSIT TO OR FROM YOU OR
THAT MAY NOW OR HEREAFTER BE LEFT IN THE POSSESSION OR UNDER CONTROL OF YOU
OR YOUR AGENTS FOR ANY PURPOSE WHATSOEVER WHETHER HELD BY OR UNDER THE
CONTROL OF YOU ALONE OR WITH OTHERS OR BY ANY OTHER PERSON OR CORPORATION
FOR YOUR ACCOUNT; AND FURTHER, BY THE PLEDGE OF THE BALANCE OF EACH AND
EVERY DEPOSIT ACCOUNT OR CERTIFICATE OF DEPOSIT WHICH ANY OF US MAY AT ANY
TIME MAINTAIN WITH YOU (WITH THE EXCEPTION OF IRA, PENSION AND OTHER TYPES
OF TAX-DEFERRED ACCOUNTS). YOU ARE HEREBY AUTHORIZED, AT ANY TIME AND FROM
TIME TO TIME, AT YOUR OPTION, TO COMPENSATE YOURSELF BY APPLYING ANY PART OR
ALL OF THE BALANCE OF EACH AND EVERY DEPOSIT ACCOUNT OR CERTIFICATE OF
DEPOSIT OF ANY OF US MAINTAINED WITH YOU (WITH THE EXCEPTION OF IRA, PENSION
AND OTHER TYPES OF TAX-DEFERRED ACCOUNTS), WHETHER OR NOT THE DEPOSIT
ACCOUNT OR CERTIFICATE OF DEPOSIT IS MATURE, AND/OR ANY OR ALL MONIES NOW OR
HEREAFTER IN THE HANDS OF YOU, OR IN TRANSIT TO OR FROM YOU, AND BELONGING
TO ANY OF US, TO THE PAYMENT, IN WHOLE OR IN PART, OF THE CREDIT OR ANY
OTHER INDEBTEDNESS, WHETHER OR NOT THE CREDIT OR OTHER INDEBTEDNESS IS DUE
OR HAS BEEN DEMANDED.
2. IF ANY DRAFT IS DRAWN ON YOU PURSUANT TO THE CREDIT, WE AUTHORIZE YOU, AT
YOUR OPTION, TO COMPENSATE YOURSELF BY APPLYING ANY PART OR ALL OF THE
BALANCE OF EVERY DEPOSIT ACCOUNT OR CERTIFICATE OF DEPOSIT WHICH WE MAY
MAINTAIN WITH YOU AT ANY TIME, WHETHER OR NOT THE DEPOSIT IS MATURE, AND/OR
ANY OR ALL MONIES OR OTHER PROPERTY OR INTEREST OF ANY KIND NOW OR HEREAFTER
IN YOUR HANDS, OR IN TRANSIT TO OR FROM YOU, AND BELONGING TO US, TO THE
PAYMENT, IN WHOLE OR IN PART, OF THE PRINCIPAL AND ANY INTEREST, COSTS AND
ATTORNEY'S FEES WHICH WE MAY OWE TO YOU PURSUANT TO THIS AGREEMENT.
3. IN THE EVENT ANY DRAFT IS DRAWN ON YOU PURSUANT TO THE CREDIT AND YOU DO NOT
ELECT TO EXERCISE YOUR RIGHT OF OFFSET AND COMPENSATION SET FORTH IN
PARAGRAPH 2 OF THIS AGREEMENT, WE AGREE TO PAY TO YOU ON DEMAND AT THE MAIN
OFFICE A SUM WHICH WILL EQUAL THE AMOUNT OF THE DRAFT, PLUS INTEREST THEREON
FROM THE DATE THE DRAFT IS DRAWN ON YOU PURSUANT TO THE CREDIT UNTIL PAID
AT THE RATE PER ANNUM OF __________________________________________________.
INTEREST WILL BE CALCULATED ON THE NUMBER OF ACTUAL DAYS ELAPSED BASED ON A
YEAR OF 360 DAYS. ALL PAYMENTS MAY BE APPLIED FIRST TO INTEREST, THEN TO
INSURANCE PREMIUMS AND OTHER CHARGES (IF APPLICABLE), THEN TO PRINCIPAL. A
PAYMENT SHALL NOT BE DEEMED MADE UNTIL THE FUNDS THEREFOR HAVE BEEN ACTUALLY
COLLECTED AND MADE AVAILABLE TO YOU AT THE MAIN OFFICE.
4. IN THE EVENT ANY DRAFT IS DRAWN ON YOU PURSUANT TO THE CREDIT IN AN AMOUNT
LESS THAN THE FULL AMOUNT OF THE PRINCIPAL, YOU MAY STILL EXERCISE YOUR
RIGHTS PURSUANT TO THE PROVISIONS OF PARAGRAPH 2 AND 3 FOR THE FULL AMOUNT
OF THE PRINCIPAL. ANY AMOUNT WHICH YOU OFFSET PURSUANT TO THE PROVISIONS OF
PARAGRAPH 2 OR WHICH WE MUST PAY TO YOU PURSUANT TO THE PROVISIONS OF
PARAGRAPH 3 WHICH ARE IN EXCESS OF DRAFTS ACTUALLY DRAWN ON YOU PURSUANT TO
THE CREDIT SHALL BE HELD BY YOU IN PLEDGE TO SECURE THE PAYMENT OF FUTURE
DRAFTS UNTIL 30 DAYS AFTER THE EXPIRATION DATE OR AFTER ANY EXTENSION OF THE
EXPIRATION DATE WHICHEVER IS LATER. ANY AMOUNTS SO PAID BY US TO YOU WHICH
HAVE NOT BEEN DRAWN BY 30 DAYS AFTER THE EXPIRATION DATE OR AFTER ANY
EXTENSION OF THE EXPIRATION DATE, WHICHEVER IS LATER, SHALL BE REPAID TO US
WITHOUT INTEREST.
5. WE ALSO AGREE TO PAY YOU, ON DEMAND, A COMMITMENT FEE FOR THE CREDIT, WHICH
FEE SHALL BE CALCULATED AS FOLLOWS:_________________________________________
___________________________________________________________________________.
WE UNDERSTAND THAT WE ARE NOT ENTITLED TO A REFUND OF ANY PORTION OF THE
COMMITMENT FEE UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, YOUR
UNILATERAL REDUCTION, EARLY TERMINATION, OR OTHER MODIFICATION OF THE
CREDIT. WE ADDITIONALLY AGREE TO PAY YOU ALL CHARGES AND EXPENSES INCURRED
IN CONNECTION WITH THE CREDIT, INCLUDING, BUT NOT LIMITED TO COLLECTION
COSTS, COURT COSTS AND ATTORNEY'S FEES.
6. WE AGREE THAT, REGARDLESS OF ANY EXTENSION OF THE EXPIRATION DATE, ANY
INCREASE IN THE AMOUNT OF THE CREDIT, OR ANY OTHER MODIFICATION OF THE TERMS
OF THE CREDIT, THIS AGREEMENT SHALL BE BINDING UPON US. NO SUCH
MODIFICATION OF THE CREDIT OR THIS AGREEMENT WILL BE EFFECTIVE UNLESS AGREED
TO IN WRITING BY YOU.
7. EACH OF THE FOLLOWING SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THIS
AGREEMENT: SHOULD WE MAKE ANY MISREPRESENTATION TO YOU IN CONNECTION WITH
THE OBTAINING OF THE CREDIT; SHOULD WE BE IN DEFAULT WITH RESPECT TO ANY
PAYMENT OF PRINCIPAL, INTEREST, COMMITMENT FEES, COSTS OR ATTORNEY'S FEES
UNDER THIS AGREEMENT; SHOULD WE FAIL TO PAY ALL OR ANY PART OF THE PRINCIPAL
IN ACCORDANCE WITH THE PROVISIONS SET FORTH HEREIN; SHOULD THERE BE A
DEFAULT IN ANY MORTGAGE OR PLEDGE SECURING OUR PAYMENT OF ALL OR ANY PART OF
THE PRINCIPAL, INTEREST AND OTHER CHARGES; SHOULD WE BE IN DEFAULT WITH
RESPECT TO ANY OTHER OBLIGATION CONTAINED HEREIN, OR WITH RESPECT TO ANY
OBLIGATION OWED BY US TO YOU OR OTHERS FOR THE REPAYMENT OF BORROWED
MONIES; SHOULD WE FILE A PETITION UNDER ANY CHAPTER OF THE FEDERAL
BANKRUPTCY ACT OR ANY SIMILAR STATE OR FEDERAL LAW, WHETHER NOW OR HEREAFTER
EXISTING; SHOULD ANY BANKRUPTCY PROCEEDING BE COMMENCED AGAINST US AND
SHOULD WE FAIL TO FILE AN ANSWER CONTROVERTING AND OPPOSING THE PETITION, OR
FAIL TO OBTAIN A DISMISSAL OF SUCH ACTION WITHIN 45 DAYS OF ITS
COMMENCEMENT; SHOULD WE BE THE SUBJECT OF AN ORDER FOR RELIEF AGAINST US IN
ANY SUCH BANKRUPTCY PROCEEDING OR HAVE A CUSTODIAN (AS DEFINED IN THE
FEDERAL BANKRUPTCY ACT) OR A STATE COURT KEEPER OR RECEIVER OR TRUSTEE
APPOINTED FOR US OR HAVE ANY COURT TAKE JURISDICTION OF ANY PART OF OUR
PROPERTY IN ANY INVOLUNTARY PROCEEDINGS FOR THE PURPOSE OF REORGANIZATION,
ARRANGEMENT, DISSOLUTION OR LIQUIDATION, AND THE COURT'S JURISDICTION IS NOT
TERMINATED OR THE TRUSTEE, KEEPER OR RECEIVER IS NOT DISCHARGED WITHIN 45
DAYS AFTER THE COMMENCEMENT OF SUCH PROCEEDING; SHOULD WE APPLY FOR ANY SUCH
RELIEF UNDER STATE LAW; SHOULD WE MAKE A GENERAL ASSIGNMENT FOR THE BENEFIT
OF CREDITORS OR HAVE APPOINTED A COMMITTEE OF CREDITORS; SHOULD THERE BE
CALLED A MEETING OF OUR CREDITORS; SHOULD WE ADMIT OUR INABILITY TO PAY OUR
DEBTS AS THEY BECOME DUE; SHOULD WE SUSPEND THE TRANSACTION OF OUR USUAL
BUSINESS; OR SHOULD YOU IN ANY WAY DEEM YOURSELF INSECURE AT ANY TIME. UPON
THE OCCURRENCE OF AN EVENT OF DEFAULT, ALL OUTSTANDING PRINCIPAL AND ANY
AND ALL OTHER INDEBTEDNESS WHICH WE MAY OWE TO YOU SHALL, AT YOUR OPTION,
BECOME IMMEDIATELY DUE AND PAYABLE. IF AT THE TIME ANY EVENT OF DEFAULT
OCCURS, ANY PORTION OF THE CREDIT REMAINS UNDISBURSED, WE SHALL PAY TO YOU
IN CASH, WITHIN 24 HOURS OF YOUR DEMAND THEREFOR, FOR APPLICATION TO
DRAWINGS UNDER THE CREDIT, AN AMOUNT EQUAL TO SUCH UNDISBURSED PORTION OF
THE CREDIT. IF WE DO NOT PAY SUCH AMOUNT ON DEMAND, YOU SHALL HAVE THE
RIGHT, WITHOUT PREJUDICE TO YOUR OTHER RIGHTS, TO COLLECT SUCH AMOUNT
PURSUANT TO PARAGRAPHS 2 AND 3 ABOVE, AND TO HOLD THAT SUM IN PLEDGE AS
PROVIDED IN PARAGRAPH 4 ABOVE. ANY AMOUNTS WHICH WE HAVE PAID TO YOU ON
SUCH DEMAND AND WHICH HAVE NOT BEEN DRAWN BY 30 DAYS AFTER THE EXPIRATION
DATE, OR AFTER ANY EXTENSION OF THE EXPIRATION DATE, WHICHEVER IS LATER,
SHALL BE REPAID TO US WITHOUT INTEREST.
8. WE AGREE THAT YOU MAY AT ANY TIME DELIVER THE CREDIT THROUGH ANY BANK(S)
("CORRESPONDENTS") YOU IN YOUR SOLE DISCRETION MAY CHOOSE. WE HOLD YOU
HARMLESS FOR ANY ACTIONS OR CLAIMS ARISING OUT OF THE HANDLING OF SUCH
DELIVERY BY THE CORRESPONDENTS MAKING THE DELIVERY. WE FURTHER AGREE THAT
NEITHER YOU NOR ANY CORRESPONDENTS SHALL EVER IN ANY WAY BE RESPONSIBLE FOR
PERFORMANCE BY ANY BENEFICIARY OF ITS OBLIGATIONS TO US NOR FOR THE FORM,
VALIDITY, SUFFICIENCY, CORRECTNESS, TRUTHFULNESS OR GENUINENESS OF ANY
DOCUMENTS DELIVERED IN CONNECTION WITH THE CREDIT, EVEN IF SUCH DOCUMENTS
SHOULD IN FACT PROVE TO BE IN ANY OR ALL RESPECTS INVALID, INSUFFICIENT,
FRAUDULENT OR FORGED; FOR FAILURE OF ANY DRAFT TO BEAR ANY REFERENCE OR
CORRECT REFERENCE TO THE CREDIT; FOR ERRORS, OMISSIONS OR DELAYS IN
TRANSMISSION OR DELIVERY OF ANY MESSAGES WHETHER BY MAIL, CABLE, TELEGRAPH
OR OTHERWISE; OR, FOR ANY ERROR, NEGLECT OR DEFAULT OF ANY CORRESPONDENTS.
WE FURTHER AGREE THAT, IF ANY OF THE ABOVE EVENTS SHOULD OCCUR, SUCH EVENT
WILL NOT AFFECT, IMPAIR OR PREVENT OUR LIABILITY OR YOUR RIGHTS OR POWERS
HEREUNDER. WE AGREE THAT ANY ACTION TAKEN BY YOU OR BY ANY CORRESPONDENT IN
CONNECTION WITH THE CREDIT, INCLUDING BUT NOT LIMITED TO RELATIVE DRAFTS,
DOCUMENTS, OR PROPERTY, AS WELL AS ANY INACTION OR OMISSION, SHALL NOT
RESULT IN LIABILITY TO YOU OR ANY CORRESPONDENT.
9. WITHOUT LIMITING THE FOREGOING, AND IN ADDITION TO THE PROVISIONS OF
PARAGRAPH 8 HEREOF, YOU ARE HEREBY EXPRESSLY AUTHORIZED AND DIRECTED TO
HONOR ANY REQUEST FOR PAYMENT WHICH IS MADE UNDER AND IN COMPLIANCE WITH THE
TERMS OF THE CREDIT WITHOUT REGARD TO, AND WITHOUT ANY DUTY ON YOUR PART TO
INQUIRE INTO, THE EXISTENCE OF ANY, DISPUTES OR CONTROVERSIES BETWEEN ANY OF
THE UNDERSIGNED, THE BENEFICIARY OR ANY OTHER PERSON, FIRM, OR CORPORATION,
OR THE RESPECTIVE RIGHTS, DUTIES OR LIABILITIES OF ANY OF THEM OR WHETHER
ANY FACTS OR OCCURRENCES REPRESENTED IN ANY OF THE DOCUMENTS PRESENTED UNDER
THE CREDIT ARE TRUE OR CORRECT. WE FULLY UNDERSTAND AND AGREE THAT YOUR
SOLE OBLIGATION TO US SHALL BE LIMITED TO HONORING REQUESTS FOR PAYMENT MADE
UNDER AND IN COMPLIANCE WITH THE TERMS OF THE CREDIT AND THIS AGREEMENT, AND
YOUR OBLIGATION REMAINS SO LIMITED EVEN IF YOU MAY HAVE ASSISTED US IN THE
PREPARATION OF THE WORDING OF THE CREDIT OR ANY DOCUMENTS REQUIRED TO BE
PRESENTED THEREUNDER, OR IF YOU MAY OTHERWISE BE AWARE OF THE UNDERLYING
TRANSACTION GIVING RISE TO THE CREDIT AND THIS AGREEMENT.
10.WE AGREE, AT ANY TIME AND FROM TIME TO TIME WHETHER OR NOT ANY DRAFTS HAVE
BEEN DRAWN PURSUANT TO THIS CREDIT AND WHETHER OR NOT THERE HAS OCCURRED ANY
EVENT OF DEFAULT UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT WE MAY HAVE
WITH YOU, WITHIN 24 HOURS OF DEMAND BY YOU, TO DELIVER, CONVEY, TRANSFER,
PLEDGE AND/OR ASSIGN TO YOU, AS SECURITY FOR PAYMENT OF PRINCIPAL, INTEREST
AND OTHER CHARGES AND PERFORMANCE OF THIS AGREEMENT, SECURITY OR ADDITIONAL
SECURITY OF A VALUE AND CHARACTER SATISFACTORY TO YOU AND TO MAKE SUCH
PAYMENTS TO YOU AS YOU MAY REQUIRE PURSUANT TO THE TERMS OF THIS AGREEMENT.
11.WE AGREE TO MAINTAIN INSURANCE ON ALL PROPERTY MORTGAGED OR PLEDGED TO
SECURE THIS AGREEMENT, INSURING YOU AGAINST THE LOSS OF SUCH PROPERTY BY
FLOOD, FIRE, THEFT OR OTHER PERIL, FOR THE TERM OF THE CREDIT AND ALL
EXTENSIONS OR RENEWALS OF THE CREDIT. IF WE SHOULD FAIL TO INSURE THE
MORTGAGED OR PLEDGED PROPERTY AND DELIVER A COPY OF THE INSURANCE POLICY TO
YOU WITHIN 30 DAYS OF THE EXECUTION OF THIS AGREEMENT, OR IF WE FAIL TO
OBTAIN A RENEWAL POLICY IMMEDIATELY, OR IF WE OBTAIN SUCH INSURANCE BUT FOR
ANY REASON IT IS CANCELLED, IN WHOLE OR PART, AT ANY TIME BEFORE THE
EXPIRATION DATE OF THE CREDIT INCLUDING EXTENSIONS OR RENEWALS THEREOF, AND
WE FAIL TO OBTAIN A RENEWAL POLICY IMMEDIATELY, OR IF WE FAIL TO PAY TAXES
OR ASSESSMENTS ON THE MORTGAGED OR PLEDGED PROPERTY OR PERMIT ANY LIENS TO
BE PLACED AGAINST THE PROPERTY, YOU, IN ADDITION TO ANY OTHER RIGHTS YOU MAY
HAVE UNDER THIS AGREEMENT SHALL HAVE THE RIGHT TO OBTAIN AND PAY FOR SUCH
POLICY, SUCH TAXES OR ASSESSMENTS, AND THE AMOUNT NECESSARY TO DISCHARGE
SUCH LIENS, UP TO THE AMOUNT OF ONE MILLION ($1,000,000.00) DOLLARS, AND ALL
SUCH AMOUNTS SHALL BE SECURED BY THIS AGREEMENT AND BY ALL COLLATERAL NOW OR
HEREAFTER GIVEN TO SECURE OUR OBLIGATIONS TO YOU. IF, IN YOUR OPINION, IT
IS NECESSARY AT ANY TIME, WHETHER OR NOT AN EVENT OF DEFAULT OCCURS, TO
PERFORM REPAIR WORK ON THE MORTGAGED OR PLEDGED PROPERTY IN ORDER TO PUT IT
INTO SUITABLE CONDITION FOR SALE, YOU ARE AUTHORIZED TO MAKE SUCH REPAIRS
AND ALL AMOUNTS SPENT FOR SUCH PURPOSES UP TO THE AMOUNT OF TWO HUNDRED
THOUSAND ($200,000.00) DOLLARS SHALL BE SECURED BY THIS AGREEMENT AND BY ALL
ACCOUNTS OR COLLATERAL NOW OR HEREAFTER IN YOUR POSSESSION AND/OR GIVEN TO
SECURE OUR OBLIGATIONS TO YOU.
THE IMMEDIATELY PRECEDING PARAGRAPH DOES NOT OBLIGE YOU TO PROCURE
INSURANCE, PAY TAXES OR ASSESSMENTS, DISCHARGE LIENS, OR REPAIR PROPERTY,
BUT PROVIDES AN OPTION FOR YOU TO DO SO. YOU MAY DEMAND IMMEDIATE
REIMBURSEMENT FROM US OF ANY SUCH AMOUNTS SPENT BY YOU. OUR FAILURE TO
REPAY SUCH AMOUNTS WITHIN 24 HOURS OF SUCH DEMAND SHALL, AT YOUR OPTION,
CONSTITUTE AN EVENT OF DEFAULT.
12.WE BIND OURSELVES TO PAY THE FEES OF ANY ATTORNEY AT LAW WHOM YOU MAY EMPLOY
TO RECOVER THE PRINCIPAL, THE COMMITMENT FEE, OR ANY INTEREST OR OTHER COST
OWING TO YOU BY US PURSUANT TO THIS AGREEMENT, OR ANY PART HEREOF, OR TO
PROTECT ANY SECURITY GIVEN HEREUNDER OR YOUR INTEREST HEREIN, OR TO
COMPROMISE OR TAKE ANY OTHER ACTION WITH REGARD HERETO, WHICH FEES ARE
HEREBY FIXED AT 25% OF THE AMOUNT THEN OWING OR SOUGHT TO BE COLLECTED,
PROTECTED, OR PRESERVED.
13.WE WAIVE PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, DEMAND, PROTEST,
NOTICE OF PROTEST, ALL PLEAS OF DIVISION AND DISCUSSION AND AGREE THAT THE
TIME OF PAYMENT OF THE PRINCIPAL, INTEREST, AND OTHER CHARGES MAY BE
EXTENDED, FROM TIME TO TIME ONE OR MORE TIMES, WITHOUT NOTICE OF SUCH
EXTENSIONS AND WITHOUT FURTHER CONSENT. WITHOUT NOTICE TO US, OR WITHOUT
ANY FURTHER CONSENT, YOU MAY SUBSTITUTE, RELEASE, DISCHARGE OR OTHERWISE
ALTER ANY ONE OR MORE OF OUR OBLIGATIONS WITHOUT AFFECTING IN ANY WAY ANY
OTHER OF OUR OBLIGATIONS. NO WAIVER OF ANY RIGHT BY YOU SHALL BE EFFECTIVE
EXCEPT AS SPECIFICALLY PROVIDED IN WRITING. NO DELAY BY YOU IN THE EXERCISE
OF ANY RIGHT SHALL AFFECT SUCH RIGHT, NOR PRECLUDE FUTURE EXERCISE OF SUCH
OR SIMILAR RIGHTS.
14.WHEN YOU ARE REQUIRED TO MAKE DEMAND UPON US PURSUANT TO THIS AGREEMENT,
DEMAND SHALL BE DEEMED TO HAVE BEEN MADE ON THE DATE AND HOUR WHEN YOU HAVE
EITHER TELEPHONED US OR HAVE SENT WRITTEN NOTICE OF DEMAND TO THE MOST
RECENT ADDRESS WHICH WE HAVE GIVEN YOU IN WRITING, BY TELEGRAPH, TELEX,
CABLE OR REGISTERED MAIL.
15.WE AGREE THAT EVEN IF THE LETTER OF CREDIT IS ISSUED IN A FOREIGN CURRENCY,
THE PRINCIPAL AMOUNT OF EACH DRAWING, FOR THE PURPOSES OF DETERMINING THE
PRINCIPAL OUTSTANDING, WILL BE THE U.S. DOLLAR EQUIVALENT OF THE FOREIGN
CURRENCY AMOUNT CONVERTED AT THE RATE OF EXCHANGE WHICH IS DETERMINED BY YOU
AT THE RATE YOU IN YOUR SOLE DISCRETION MAY SET ON THE DATE OF ANY DRAWING.
FURTHER, WE INDEMNIFY YOU AND YOUR CORRESPONDENTS AGAINST ALL OBLIGATIONS,
LIABILITIES AND RESPONSIBILITIES WHICH ARE IMPOSED BY OR RESULT FROM FOREIGN
LAWS, CUSTOMS AND USAGES.
16.WE UNDERSTAND THAT IF THE LETTER OF CREDIT IS DESIGNATED AS "TRANSFERABLE,"
ANY TRANSFER WILL ONLY BE EFFECTIVE AFTER YOU HAVE RECEIVED AND ACKNOWLEDGED
WRITTEN NOTICE OF TRANSFER.
17.IF THIS AGREEMENT IS SIGNED BY ONE PARTY, THE TERMS "WE," "OUR," "US," SHALL
BE READ THROUGHOUT AS "I, "MY," "ME," AS THE CASE MAY BE. IF THIS AGREEMENT
IS SIGNED BY TWO OR MORE PARTIES, IT SHALL BE THE JOINT, SEVERAL AND
SOLIDARY OBLIGATION OF SUCH PARTIES, AND THE TERMS, "WE," "OUR," AND "US"
SHALL BE READ THROUGHTOUT AS "OUR, OR ANY OF OUR," AND "US, OR ANY OF US."
THE TERMS "WE," "OUR," AND "US," AS USED IN THIS AGREEMENT, MEAN EACH MAKER,
ENDORSER, GUARANTOR, OR OTHER SURETY OF THE PRINCIPAL, INTEREST AND OTHER
CHARGES AND ANY AND ALL OTHER INDEBTEDNESS OWING BY US TO YOU, INCLUDING ANY
PERSON OR ENTITY PLEDGING OR MORTGAGING PROPERTY TO SECURE THE PRINCIPAL AND
ANY AND ALL OTHER INDEBTEDNESS ARISING PURSUANT TO THIS AGREEMENT, AS WELL
AS THEIR HEIRS, SUCCESSORS OR ASSIGNS. THE TERMS "YOU" AND "YOUR" SHALL BE
READ THROUGHOUT TO REFER TO BANK, ITS SUCCESSORS, TRANSFEREES AND ASSIGNS.
18.IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT IS INVALIDATED BY A CHANGE
IN EXISTING LAW OR REGULATIONS OR BY A DECISION OF ANY COURT HAVING
JURISDICTION OVER THIS AGREEMENT OR THE PARTIES HERETO, SUCH PROVISION WILL
BE CONSIDERED AS HAVING BEEN SEVERED FROM THIS AGREEMENT, AND THE REMAINING
PROVISIONS OF THIS AGREEMENT WILL CONTINUE IN FULL FORCE AND EFFECT.
19.THIS AGREEMENT SHALL BE DEEMED TO BE MADE UNDER AND SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA. THE CREDIT WILL BE SUBJECT
TO THE UNIFORM CUSTOMS OF PRACTICE FOR DOCUMENTARY CREDITS (1983 REVISION),
INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 400, OR BY SUBSEQUENT
UNIFORM CUSTOMS AND PRACTICE FIXED BY SUBSEQUENT CONGRESSES OF THE
INTERNATIONAL CHAMBER OF COMMERCE.
THE FOREGOING ACCEPTED AND AGREED TO:
___________________________________ ___________________________________
(NAME OF APPLICANT)
___________________________________ ___________________________________
(AUTHORIZED SIGNATURE AND TITLE)
BY: _______________________________ ___________________________________
(AUTHORIZED SIGNATURE AND TITLE) (NAME OF APPLICANT)
BY: _______________________________ ___________________________________
(AUTHORIZED SIGNATURE AND TITLE) (NAME OF APPLICANT)
GUARANTY BY ENDORSEMENT
EACH OF THE UNDERSIGNED UNCONDITIONALLY GUARANTEE THE PUNCTUAL PAYMENT OF
PRINCIPAL AND ANY AND ALL OTHER INDEBTEDNESS ARISING PURSUANT TO THIS AGREEMENT
AND EACH AMENDMENT, MODIFICATION, EXTENSION OR RENEWAL HEREOF IN ACCORDANCE
WITH THE PROVISIONS HEREOF. ALL THE TERMS, CONDITIONS, WAIVERS AND PROVISIONS
OF THIS AGREEMENT SHALL BE BINDING UPON EACH OF THE UNDERSIGNED. THE
UNDERSIGNED EACH HEREBY WAIVE PRESENTMENT FOR PAYMENT, DEMAND, PROTEST, NOTICE
OF PROTEST, NON-PAYMENT AND DEMAND, AND AGREE THAT THE LIABILITY OF EACH OF THE
UNDERSIGNED IS IN SOLIDO WITH THE MAKER OR MAKERS OF THIS AGREEMENT.
THE UNDERSIGNED FURTHER AGREE THAT THE MATURITY OF THE PRINCIPAL AND ANY AND
ALL OTHER INDEBTEDNESS ARISING PURSUANT TO THIS AGREEMENT MAY BE EXTENDED FROM
TIME TO TIME ONE OR MORE TIMES, WITHOUT NOTICE OF SUCH EXTENSIONS AND WITHOUT
FURTHER CONSENT; THAT ANY OF US MAY AT ANY TIME BE RELEASED IN WHOLE OR IN PART
FROM THEIR OBLIGATIONS HEREUNDER WITHOUT AFFECTING THE CONTINUING LIABILITY OR
OBLIGATIONS OF ANY OF US HEREUNDER; AND THE SECURITY FOR THE PAYMENT THEREOF
MAY FROM TIME TO TIME BE SUBSTITUTED, EXCHANGED, OR RELEASED, OR OTHERWISE
DEALT WITH AS BANK MAY DETERMINE, WITHOUT NOTICE TO OR FURTHER ASSENT OF
UNDERSIGNED, OR ANY OF THEM, EACH OF WHOM SHALL REMAIN BOUND IN SOLIDO WITH THE
MAKER OR MAKERS OF THIS AGREEMENT.
________________________________ _______________________________________
________________________________ _______________________________________
EXHIBIT B
COMMERCIAL PROMISSORY NOTE
(REVOLVING)
$10,000,000.00 New Orleans, Louisiana
August 21, 1998
FOR VALUE RECEIVED, the undersigned ("BORROWER", whether one or more), in
solido, promises to pay to the order of FIRST NATIONAL BANK OF COMMERCE
("BANK"), as provided below, at 201 St. Charles Avenue, New Orleans,
Louisiana 70170, the sum of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00), with interest thereon from date until paid, at the rates
specified in the Loan Agreement (as hereinafter defined). All payments
shall be applied first to interest, then to other charges and insurance
premiums (if applicable), then to principal.
This note is one of the notes referred to in, is subject to the terms and
conditions of, and is entitled to the benefits of, that certain Seventh
Amended and Restated Revolving Credit Agreement, dated effective as of the
date hereof, by and among Borrower, Dolphin Services, Inc., Southport,
Inc., Whitney National Bank ("WHITNEY"), and Bank, in its individual
capacity and as agent for Bank and Whitney (the "LOAN AGREEMENT"), which
Loan Agreement, among other things, contains provisions for the maximum
amount of credit to be made available hereunder, certain fees, acceleration
of the maturity hereof upon the happening of certain stated events, and
also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified. Bank may from time
to time make advances to Borrower under the Loan Agreement, the aggregate
unpaid principal balance of which shall not exceed the principal amount
stated herein. Borrower shall be obligated to repay only the actual amount
advanced, plus interest and appropriate penalties calculated as provided in
this Note.
SINGLE PAYMENT NOTE/SINGLE PRINCIPAL PAYMENT, PERIODIC INTEREST
INSTALLMENTS. PRINCIPAL SHALL BE PAYABLE IN FULL ON DECEMBER 31, 2000, AND
INTEREST THEREON SHALL BE PAYABLE ON THE LAST DAY OF SEPTEMBER, 1998, AND
THE LAST DAY OF EACH CALENDAR QUARTER THEREAFTER.
A. SECURITY. This note is secured by all of the Collateral Documents
(as defined in the Loan Agreement).
B. LATE PAYMENT. A payment is not deemed made until funds are
collected and made available to Bank. If any payment, whether the payment
represents principal or interest or both, is not paid in full when due,
whether during the term of this note or at maturity, and such nonpayment
shall have continued for a period of five (5) days following written notice
thereof by Bank to Borrower, Bank may impose upon and collect from Borrower
a late charge equal to five percent (5%) of the unpaid amount of the
payment then due and owing. Late charges imposed under this section shall
not be less than $25.00 nor more than $100.00 per occurrence.
C. DEFAULT. If this note is in default, Bank may, at its option and
without notice or demand, declare immediately due and payable the entire
unpaid balance of the note.
Each of the following shall constitute a default under this note: if
this note is not paid in accordance with its terms and such nonpayment in
accordance with its terms shall have continued for a period of five (5)
days following written notice of such default by Bank to Borrower; or the
occurrence of an Event of Default, as defined in the Loan Agreement.
D. ATTORNEY'S FEES. Borrower agrees to pay the reasonable fees of any
attorney at law who may be employed to recover the amount hereof, or any
part hereof, in principal or interest, or to protect any security herefor
or the interest of the holder hereof, or to compromise or to take any other
action with regard hereto, which fees shall not exceed twenty-five percent
(25%) of the amount then owing hereon or sought to be collected, protected,
or preserved.
E. PREPAYMENT. Borrower may prepay the note in full or in part at any
time in accordance with the terms of the Loan Agreement.
F. WAIVER OF DEFENSES. Each party waives presentment for payment,
demand, notice of nonpayment, demand, and protest, and agrees that the time
of payment hereof may be extended from time to time, one or more times,
without notice of such extension or extensions, and without further
consent. The term "PARTY" as used in this note, means each maker,
endorser, guarantor, or other surety of this note, including any person or
entity pledging or mortgaging property to secure this note and their heirs,
successors, or assigns. Without notice to, or consent of, any party, Bank
may substitute, release, discharge, or otherwise alter the obligation of
any party, without affecting in any way the obligation of any other party.
No waiver of any right by Bank shall be effective, unless in writing and
signed by Bank. No delay by Bank in the exercise of any right shall affect
such right, nor preclude future exercise of such similar rights. As used
herein, the term "BANK" shall be deemed to include not only Bank and its
successors and assigns, but also any transferee(s), endorsee(s), or future
holder(s) of this note.
G. INTEREST CALCULATION. Interest shall be calculated as specified in
the Loan Agreement.
H. ELECTION OF LAW. This note shall be governed by and construed
under the law of the State of Louisiana. Each party agrees that any action
arising out of this note, or any renewals or substitutions for this note,
may be brought in any competent court in the Parish of Orleans, State of
Louisiana.
This note, together with that certain Commercial Promissory Note
(Revolving) dated August 21, 1998, in the principal sum of $10,000,000.00,
executed by Borrower, payable to the order of Whitney, bearing interest at
the per annum rate set forth herein (the "WHITNEY NOTE"), is given in
renewal and rearrangement and not in novation or discharge of: (a) that
certain promissory note of Borrower payable to the order of Bank, dated May
1, 1997, in the amount of $10,000,000.00, and (b) that certain promissory
note of Borrower payable to the order of Whitney, dated May 1, 1997, in the
amount of $10,000,000.00 (both of the foregoing promissory notes being
collectively referred to as the "FORMER NOTES").
The indebtedness evidenced by this note and the Whitney Note is a
continuation of and an increase in the indebtedness evidenced by the Former
Notes, which indebtedness is in no way extinguished or diminished hereby,
and nothing contained in this note shall be construed (a) as a novation of
the Former Notes or any collateral securing same; (b) as payment of any
amount of principal or interest on the Former Notes; or (c) to release,
cancel, terminate, or otherwise impair the status or priority of the liens
created by the Collateral Documents (as defined in the Loan Agreement) and
Borrower hereby ratifies, confirms, and approves the continuing existence,
validity, priority, and binding effect of the Collateral Documents.
GULF ISLAND FABRICATION, INC.
(BORROWER)
BY:_______________________________
KERRY J. CHAUVIN
PRESIDENT
EXHIBIT C
COMMERCIAL PROMISSORY NOTE
(REVOLVING)
$10,000,000.00 New Orleans, Louisiana
August 21, 1998
FOR VALUE RECEIVED, the undersigned ("BORROWER", whether one or more), in
solido, promises to pay to the order of WHITNEY NATIONAL BANK ("BANK"), as
provided below, at 228 St. Charles Avenue, New Orleans, Louisiana 70130,
the sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), with interest
thereon from date until paid, at the rates specified in the Loan Agreement
(as hereinafter defined). All payments shall be applied first to interest,
then to other charges and insurance premiums (if applicable), then to
principal.
This note is one of the notes referred to in, is subject to the terms and
conditions of, and is entitled to the benefits of, that certain Seventh
Amended and Restated Revolving Credit Agreement, dated effective as of the
date hereof, by and among Borrower, Dolphin Services, Inc., Southport,
Inc., Bank and First National Bank of Commerce ("FNBC"), in its individual
capacity and as agent for Bank and FNBC (the "LOAN AGREEMENT"), which Loan
Agreement, among other things, contains provisions for the maximum amount
of credit to be made available hereunder, certain fees, acceleration of the
maturity hereof upon the happening of certain stated events, and also for
prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified. Bank may from time to
time make advances to Borrower under the Loan Agreement, the aggregate
unpaid principal balance of which shall not exceed the principal amount
stated herein. Borrower shall be obligated to repay only the actual amount
advanced, plus interest and appropriate penalties calculated as provided in
this Note. Bank, at Bank's election, may exercise any and all rights and
remedies described in this note through FNBC, as Bank's agent.
SINGLE PAYMENT NOTE/SINGLE PRINCIPAL PAYMENT, PERIODIC INTEREST
INSTALLMENTS. PRINCIPAL SHALL BE PAYABLE IN FULL ON DECEMBER 31, 2000, AND
INTEREST THEREON SHALL BE PAYABLE ON THE LAST DAY OF SEPTEMBER, 1998, AND
THE LAST DAY OF EACH CALENDAR QUARTER THEREAFTER.
A. SECURITY. This note is secured by all of the Collateral Documents
(as defined in the Loan Agreement).
B. LATE PAYMENT. A payment is not deemed made until funds are
collected and made available to Bank. If any payment, whether the payment
represents principal or interest or both, is not paid in full when due,
whether during the term of this note or at maturity, and such nonpayment
shall have continued for a period of five (5) days following written notice
thereof by Bank to Borrower, Bank may impose upon and collect from Borrower
a late charge equal to five percent (5%) of the unpaid amount of the
payment then due and owing. Late charges imposed under this section shall
not be less than $25.00 nor more than $100.00 per occurrence.
C. DEFAULT. If this note is in default, Bank may, at its option and
without notice or demand, declare immediately due and payable the entire
unpaid balance of the note.
Each of the following shall constitute a default under this note: if
this note is not paid in accordance with its terms and such nonpayment in
accordance with its terms shall have continued for a period of five (5)
days following written notice of such default by Bank to Borrower; or the
occurrence of an Event of Default, as defined in the Loan Agreement.
D. ATTORNEY'S FEES. Borrower agrees to pay the reasonable fees of any
attorney at law who may be employed to recover the amount hereof, or any
part hereof, in principal or interest, or to protect any security herefor
or the interest of the holder hereof, or to compromise or to take any other
action with regard hereto, which fees shall not exceed twenty-five percent
(25%) of the amount then owing hereon or sought to be collected, protected,
or preserved.
E. PREPAYMENT. Borrower may prepay the note in full or in part at any
time in accordance with the terms of the Loan Agreement.
F. WAIVER OF DEFENSES. Each party waives presentment for payment,
demand, notice of nonpayment, demand, and protest, and agrees that the time
of payment hereof may be extended from time to time, one or more times,
without notice of such extension or extensions, and without further
consent. The term "PARTY" as used in this note, means each maker,
endorser, guarantor, or other surety of this note, including any person or
entity pledging or mortgaging property to secure this note and their heirs,
successors, or assigns. Without notice to, or consent of, any party, Bank
may substitute, release, discharge, or otherwise alter the obligation of
any party, without affecting in any way the obligation of any other party.
No waiver of any right by Bank shall be effective, unless in writing and
signed by Bank. No delay by Bank in the exercise of any right shall affect
such right, nor preclude future exercise of such similar rights. As used
herein, the term "BANK" shall be deemed to include not only Bank and its
successors and assigns, but also any transferee(s), endorsee(s), or future
holder(s) of this note.
G. INTEREST CALCULATION. Interest shall be calculated as specified in
the Loan Agreement.
H. ELECTION OF LAW. This note shall be governed by and construed
under the law of the State of Louisiana. Each party agrees that any action
arising out of this note, or any renewals or substitutions for this note,
may be brought in any competent court in the Parish of Orleans, State of
Louisiana.
This note, together with that certain Commercial Promissory Note
(Revolving) dated August 21, 1998, in the principal sum of $10,000,000.00,
executed by Borrower, payable to the order of FNBC, bearing interest at the
per annum rate set forth herein (the "FNBC NOTE"), is given in renewal and
rearrangement and not in novation or discharge of: (a) that certain
promissory note of Borrower payable to the order of Bank, dated May 1,
1997, in the amount of $10,000,000.00, and (b) that certain promissory note
of Borrower payable to the order of FNBC, dated May 1, 1997, in the amount
of $10,000,000.00 (both of the foregoing promissory notes being
collectively referred to as the "FORMER NOTES").
The indebtedness evidenced by this note and the FNBC Note is a
continuation of and an increase in the indebtedness evidenced by the Former
Notes, which indebtedness is in no way extinguished or diminished hereby,
and nothing contained in this note shall be construed (a) as a novation of
the Former Notes or any collateral securing same; (b) as payment of any
amount of principal or interest on the Former Notes; or (c) to release,
cancel, terminate, or otherwise impair the status or priority of the liens
created by the Collateral Documents (as defined in the Loan Agreement) and
Borrower hereby ratifies, confirms, and approves the continuing existence,
validity, priority, and binding effect of the Collateral Documents.
GULF ISLAND FABRICATION, INC.
(BORROWER)
BY:_______________________________
KERRY J. CHAUVIN
PRESIDENT
FOURTH AMENDMENT TO
COLLATERAL PLEDGE AGREEMENT AND RECEIPT
(POSSESSORY COLLATERAL SECURITY AGREEMENT)
THIS FOURTH AMENDMENT TO COLLATERAL PLEDGE AGREEMENT AND RECEIPT
(POSSESSORY COLLATERAL SECURITY AGREEMENT) (this "AMENDMENT") is made and
entered into as of August 21, 1998, by and among GULF ISLAND FABRICATION,
INC., a Louisiana corporation ("BORROWER" or "PLEDGOR"), WHITNEY NATIONAL
BANK, a national banking association ("WHITNEY"), and FIRST NATIONAL BANK
OF COMMERCE, a national banking association ("FNBC"), in its individual
capacity and in its capacity as agent (the "AGENT") for Whitney and FNBC
(Whitney, FNBC, and the Agent being sometimes herein referred to
collectively as "BANKS").
RECITALS:
WHEREAS, Borrower, Banks, and Margaret Bienvenu, wife of/and Alden J.
Laborde, and Angelina Mumphrey, wife of/and Huey J. Wilson, as intervenors,
previously entered into that certain Third Amended and Restated Revolving
Credit and Term Loan Agreement dated October 29, 1991 (as amended by that
certain First Amendment to Third Amended and Restated Revolving Credit and
Term Loan Agreement by and among the same parties, dated effective as of
July 20, 1992, the "THIRD LOAN AGREEMENT");
WHEREAS, as security for certain of its obligations under the Third Loan
Agreement, Borrower granted unto and in favor of Banks a first mortgage
lien upon the Real Property (as defined and described in the Third Loan
Agreement), evidenced by the following documents that Borrower executed and
delivered to Banks:
(1) that certain Collateral Mortgage Note of Gulf Island
Fabrication, Inc., a Louisiana corporation that was the predecessor-in-
interest to Borrower ("GIF"), dated December 17, 1986, in the principal
sum of SIX MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($6,500,000.00), bearing interest at the rate of eighteen percent (18%)
per annum from date until paid, and payable to the order of Bearer (as
corrected by that certain Act of Correction of Collateral Mortgage Note
by GIF, FNBC, and William H. Hines, dated July 27, 1989, and as further
amended, extended, and renewed from time to time, the "GIF COLLATERAL
NOTE");
(2) that certain Collateral Mortgage Note of Borrower dated October
29, 1991, in the principal sum of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00), bearing interest at the rate of eighteen percent (18%)
per annum from date until paid, and payable to the order of Bearer (as
amended, extended, and renewed from time to time, the "COLLATERAL NOTE");
(3) that certain Act of Collateral Mortgage of GIF, dated December
17, 1986, in favor of Mortgagee and any and all future holders, securing
the GIF Collateral Note, recorded in the mortgage records of Terrebonne
Parish, Louisiana, in MOB 728, folio 323, under Entry No. 794226 (as
supplemented and amended by that certain Act of Supplement and Amendment
to Act of Collateral Mortgage by GIF in favor of Mortgagee and any and
all future holders, dated July 27, 1989, recorded in the mortgage records
of Terrebonne Parish, Louisiana, in MOB 811, folio 143, under Entry
No. 850040, and as further supplemented, amended, and reinscribed from
time to time, the "GIF COLLATERAL MORTGAGE");
(4) that certain Act of Collateral Mortgage of Borrower dated
October 29, 1991, in favor of Mortgagee and any and all future holders,
securing the Collateral Note, recorded in the mortgage records of
Terrebonne Parish, Louisiana, in MOB 878, under Entry No. 889436 (as
supplemented, amended, and reinscribed from time to time, the "COLLATERAL
MORTGAGE"); and
(5) that certain Collateral Pledge Agreement and Receipt
(Possessory Collateral Security Agreement) No. 1000760, dated October 29,
1991, by Borrower to Agent, with respect to the GIF Collateral Note and
the Collateral Note (the "ORIGINAL PLEDGE AGREEMENT");
WHEREAS, Borrower and Banks subsequently entered into various amendments,
modifications, and restatements of the Third Loan Agreement and of the
various documents associated therewith (collectively with all documents
executed in connection with this Agreement, the "LOAN DOCUMENTS"),
including, without limitation, that certain First Amendment to Collateral
Pledge Agreement and Receipt (Possessory Collateral Security Agreement)
dated as of February 25, 1993 and that certain Second Amendment to
Collateral Pledge Agreement and Receipt (Possessory Collateral Security
Agreement) dated as of October 24, 1996 and that certain Third Amendment to
Collateral Pledge Agreement and Receipt (Possessory Collateral Security
Agreement) dated as of May 1, 1997 (as so amended, the Original Pledge
Agreement shall be referred to as the "AMENDED PLEDGE AGREEMENT");
WHEREAS, Borrower, Dolphin Services, Inc., Southport, Inc., and Banks are
entering into that certain Seventh Amended and Restated Revolving Credit
Agreement effective as of the date hereof (together with any and all
amendments, modifications, supplements, renewals, or restatements thereof,
the "SEVENTH LOAN AGREEMENT"), which Seventh Loan Agreement amends and
restates the obligations of Borrower to Banks in their entirety;
WHEREAS, pursuant to the Seventh Loan Agreement, the obligations of
Borrower to Banks are now evidenced by, among other agreements, (i) that
certain Commercial Promissory Note (Revolving), of even date herewith, in
the principal sum of $10,000,000.00, payable to the order of FNBC, bearing
interest as specified in the Seventh Loan Agreement, and (ii) that certain
Commercial Promissory Note (Revolving), of even date herewith, in the
principal sum of $10,000,000.00, payable to the order of Whitney, bearing
interest as specified in the Seventh Loan Agreement (collectively, the
"REVOLVING NOTES"); and
WHEREAS, pursuant to the terms of the Seventh Loan Agreement, Borrower
has agreed to execute this Amendment in order to amend the Amended Pledge
Agreement to confirm that the Amended Pledge Agreement secures all of
Borrower's obligations and liabilities to Banks under the Seventh Loan
Agreement and the Revolving Notes;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Pledge Agreement, and
in consideration of the loans that may hereafter be made by FNBC and
Whitney to Borrower, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower and
Banks hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1. TERMS DEFINED IN THE ORIGINAL PLEDGE AGREEMENT. Unless the context
otherwise requires or unless otherwise expressly defined herein or in the
recitals, the terms defined in the Original Pledge Agreement shall have the
same meanings whenever used in this Amendment.
1.2 DEFINED TERMS. Unless the context otherwise requires the following
terms when used in this Amendment shall have the meanings assigned to them
in this Section 1.2:
"AMENDMENT" shall mean this Fourth Amendment to Collateral Pledge
Agreement and Receipt (Possessory Collateral Security Agreement).
"NOTES" shall mean the Revolving Notes.
"PLEDGE AGREEMENT" shall mean the Amended Pledge Agreement as
amended hereby.
ARTICLE 2.
AMENDMENTS TO AMENDED PLEDGE AGREEMENT
The first paragraph of APPENDIX A to the Amended Pledge Agreement is
hereby amended by deleting the current text thereof in its entirety and
inserting in lieu thereof the text of APPENDIX A attached hereto and made a
part hereof.
ARTICLE 3.
MISCELLANEOUS
3.1 RATIFICATION OF AMENDED PLEDGE AGREEMENT. The Amended Pledge
Agreement as hereby amended is hereby ratified and confirmed in all
respects. Any reference to the Original Pledge Agreement or the Amended
Pledge Agreement in any Loan Document shall be deemed to be a reference to
the Amended Pledge Agreement as hereby amended. The effect of this
Amendment is to amend the Amended Pledge Agreement as set forth herein and
nothing more. The execution, delivery, and effectiveness of this Amendment
shall not operate as a waiver of any right, power, or remedy of Banks under
the Loan Documents.
3.2 NO NOVATION. Nothing contained herein shall be considered or
construed to be a novation or discharge of the obligations of Borrower
heretofore evidenced by the Amended Pledge Agreement.
3.3 LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Seventh Loan Agreement pertaining to Loan Documents apply
hereto.
3.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Louisiana and any
applicable laws of the United States of America in all respects, including
construction, validity, and performance.
3.5 COUNTERPARTS. This Amendment may be separately executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original, but all such counterparts shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duly authorized as of the date first
above written.
GULF ISLAND FABRICATION, INC.
By: ___________________________
Kerry J. Chauvin, President
FIRST NATIONAL BANK OF COMMERCE,
in its individual capacity and as Agent
By: ____________________________
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: __________________________
Name: __________________________
Title:__________________________
EXHIBIT D
APPENDIX "A"
TO
FOURTH AMENDMENT TO COLLATERAL PLEDGE AGREEMENT AND RECEIPT
(POSSESSORY COLLATERAL SECURITY AGREEMENT)
The term "INDEBTEDNESS" refers collectively to any and all obligations
and liabilities, whether now existing or hereafter arising, of Borrower to
Whitney National Bank, a national banking association ("WHITNEY"), and
First National Bank of Commerce, a national banking association ("FNBC") ,
in its individual capacity and as agent (the "AGENT") for Whitney and FNBC,
arising under or in connection with that certain Seventh Amended and
Restated Revolving Credit Agreement, dated August 21, 1998, by and among
Borrower, Dolphin Services, Inc., Southport, Inc., FNBC, in its individual
capacity and as Agent, and Whitney (as extended, modified, amended,
supplemented, renewed or restated from time to time, the "LOAN AGREEMENT"),
including, without limitation, all indebtedness and obligations evidenced
by (i) that certain Commercial Promissory Note (Revolving) dated August 21,
1998, in the principal sum of $10,000,000.00 executed by Borrower payable
to the order of FNBC as extended, modified, amended, supplemented or
renewed from time to time (the "FNBC REVOLVING NOTE"), and (ii) that
certain Commercial Promissory Note (Revolving) dated August 21, 1998, in
the principal sum of $10,000,000.00 executed by Borrower payable to the
order of Whitney as extended, modified, amended, supplemented or renewed
from time to time (the "WHITNEY REVOLVING NOTE" and, together with the FNBC
Revolving Note, collectively, the "NOTES"), (v) any letters of credit
issued by Bank on behalf of and for the account of Borrower or any of its
Subsidiaries in connection with the Loan Agreement (whether one or more,
collectively, the "LETTERS OF CREDIT"), (vi) any and all documents,
instruments, and agreements, including without limitation, mortgages,
assignments, pledge or security agreements, and financing statements,
delivered to Bank to secure any of the foregoing (whether one or more,
collectively, the "COLLATERAL DOCUMENTS"), and (vii) any and all principal,
interest, attorneys' fees, costs, charges, expenses, or fees of any kind or
nature whatsoever arising under or in connection with the Loan Agreement,
the Notes, the Letters of Credit, and/or the Collateral Documents.
EXHIBIT E
FOURTH AMENDMENT TO
COLLATERAL ASSIGNMENT OF LEASES AND RENTS
THIS FOURTH AMENDMENT TO COLLATERAL ASSIGNMENT OF LEASES AND RENTS
(this "AMENDMENT") is made and entered into as of August 21, 1998, by and
among GULF ISLAND FABRICATION, INC., a Louisiana corporation ("ASSIGNOR"),
WHITNEY NATIONAL BANK, a national banking association ("WHITNEY"), and
FIRST NATIONAL BANK OF COMMERCE, a national banking association ("FNBC"),
in its individual capacity and in its capacity as agent (the "AGENT") for
Whitney and FNBC (Whitney and FNBC being sometimes hereinafter referred to
collectively as the "BANKS"; the Banks and the Agent being sometimes herein
referred to collectively as "ASSIGNEES").
RECITALS:
WHEREAS, Assignor, Assignees, and Margaret Bienvenu, wife of/and Alden
J. Laborde, and Angelina Mumphrey, wife of/and Huey J. Wilson, as
intervenors, previously entered into that certain Third Amended and
Restated Revolving Credit and Term Loan Agreement dated October 29, 1991
(as amended by that certain First Amendment to Third Amended and Restated
Revolving Credit and Term Loan Agreement, dated effective as of July 20,
1992, by and among the same parties, the "THIRD LOAN AGREEMENT");
WHEREAS, also pursuant to the terms of the Third Loan Agreement,
Assignor executed and delivered to Assignees that certain Collateral
Assignment of Leases and Rents dated October 29, 1991, affecting the
property described on EXHIBIT A annexed hereto and made a part hereof,
recorded in the conveyance records of Terrebonne Parish, Louisiana, in
Conveyance Book 1297, Entry No. 889437 (the "ORIGINAL ASSIGNMENT"), in
order to secure certain of Assignor's obligations and liabilities to
Assignees under the Third Loan Agreement;
WHEREAS, the parties to the Third Loan Agreement have subsequently
entered into various amendments, modifications, and restatements of the
Third Loan Agreement and of the various security documents associated
therewith, including, without limitation, that certain First Amendment to
Collateral Assignment of Leases and Rents dated as of February 25, 1993,
that certain Second Amendment to Collateral Assignment of Leases and Rents
dated as of October 24, 1996 and that certain Third Amendment to Collateral
Assignment of Leases and Rents dated as of May 1, 1997 (as so amended, the
Original Assignment shall be referred to as the "AMENDED ASSIGNMENT");
WHEREAS, Assignor, Dolphin Services, Inc., Southport, Inc., and
Assignees are entering into that certain Seventh Amended and Restated
Revolving Credit Agreement effective as of the date hereof (together with
any and all amendments, modifications, supplements, renewals, or
restatements thereof, the "SEVENTH LOAN AGREEMENT"), which Seventh Loan
Agreement amends and restates the obligations of Assignor to Assignees in
their entirety;
WHEREAS, pursuant to the Seventh Loan Agreement, Assignor's
obligations to Assignees are now evidenced by, among other agreements, (i)
that certain Commercial Promissory Note (Revolving), of even date herewith,
in the principal sum of $10,000,000.00, payable to the order of FNBC,
bearing interest as specified in the Seventh Loan Agreement, and (ii) that
certain Commercial Promissory Note (Revolving), of even date herewith, in
the principal sum of $10,000,000.00, payable to the order of Whitney,
bearing interest as specified in the Seventh Loan Agreement (collectively,
the "REVOLVING NOTES"); and
WHEREAS, pursuant to the terms of the Seventh Loan Agreement, Assignor
has agreed to execute this Amendment in order to amend the Amended
Assignment to confirm that the Amended Assignment secures all of Assignor's
obligations and liabilities to Assignees under the Seventh Loan Agreement
and the Revolving Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Assignment,
and in consideration of the loans that may hereafter be made by FNBC and
Whitney to Assignor, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor and
Assignees hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 TERMS DEFINED IN THE ORIGINAL ASSIGNMENT. Unless the context
otherwise requires or unless otherwise expressly defined herein or in the
recitals, the terms defined in the Original Assignment shall have the same
meanings whenever used in this Amendment.
1.2 DEFINED TERMS. Unless the context otherwise requires the
following terms when used in this Amendment shall have the meanings
assigned to them in this Section 1.2:
"AMENDMENT" shall mean this Fourth Amendment to Collateral
Assignment of Leases and Rents.
"NOTES" shall mean the Revolving Notes.
"ASSIGNMENT" shall mean the Amended Assignment as amended hereby.
ARTICLE 2
AMENDMENTS TO AMENDED ASSIGNMENT
2.1 MODIFICATION OF DEFINED TERMS.
(a) The definition of the term "NOTES" as provided in the Amended
Assignment is hereby amended in its entirety such that the term
"NOTES" as used throughout the Assignment shall hereafter be deemed to
refer, collectively, to the following:
(i) that certain Commercial Promissory Note (Revolving), dated
August 21, 1998, in the principal sum of $10,000,000.00,
payable to the order of FNBC, bearing interest at the rates
specified in the Loan Agreement; and
(ii) that certain Commercial Promissory Note (Revolving), dated
August 21, 1998, in the principal sum of $10,000,000.00,
payable to the order of Whitney, bearing interest at the
rates specified in the Loan Agreement.
(b) The definition of the term "LOAN AGREEMENT" as provided in
the Amended Assignment is hereby amended in its entirety such that the
term "LOAN AGREEMENT" as used throughout the Assignment shall
hereafter be deemed to refer to that certain Seventh Amended and
Restated Revolving Credit Agreement effective as of August 21, 1998,
by and among Assignor, Dolphin Services, Inc., Southport, Inc., and
Assignees, together with any and all amendments, modifications,
supplements, renewals, and restatements thereof.
ARTICLE 3
MISCELLANEOUS
3.1 RATIFICATION OF AMENDED ASSIGNMENT. The Amended Assignment as
hereby amended is hereby ratified and confirmed in all respects. Any
reference to the Original Assignment or the Amended Assignment in any Loan
Document shall be deemed to be a reference to the Assignment. The effect
of this Amendment is to amend the Amended Assignment as set forth herein
and nothing more. The execution, delivery, and effectiveness of this
Amendment shall not operate as a waiver of any right, power, or remedy of
Assignees under the Seventh Loan Agreement, the Notes, or any other Loan
Document nor constitute a waiver of any provision of the Seventh Loan
Agreement, the Notes, or any other Loan Document.
3.2 NO NOVATION. Nothing contained herein shall be considered or
construed to be a novation or discharge of the obligations of Assignor
heretofore evidenced by the Amended Assignment.
3.3 LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Seventh Loan Agreement pertaining to Loan Documents apply
hereto.
3.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Louisiana and any
applicable laws of the United States of America in all respects, including
construction, validity, and performance.
3.5 COUNTERPARTS. This Amendment may be separately executed in as
many counterparts as may be deemed necessary or convenient, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
GULF ISLAND FABRICATION, INC.
BY: ___________________________
Kerry J. Chauvin, President
FIRST NATIONAL BANK OF COMMERCE,
in its individual capacity and as Agent
By: ___________________________
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: _________________________
Name: _________________________
Title:_________________________
EXHIBIT "A"
TO
FOURTH AMENDMENT TO COLLATERAL ASSIGNMENT OF LEASES AND RENTS
ALL OF THAT CERTAIN TRACT OR PARCEL OF LAND, together with all of the
buildings and improvements thereon, and all of the rights, ways,
privileges, servitudes, appurtenances and advantages thereunto belonging or
in anywise appertaining, situated in the Parish of Terrebonne, State of
Louisiana, in Sections 1 and 15, T18S, R17E, and according to survey of T.
Baker Smith & Son, Inc., dated September 19, 1991, said property measures
as follows, to-wit:
Commencing at the intersection of the centerline of Thompson Road with
the centerline of Grand Caillou Road (La. Hwy. 57); thence, S
81*03'50" W a distance of 4831.76 feet to the point of beginning;
Thence, S 8*56'10" E a distance of 1300.00 feet to a point;
Thence, S 81*03'50" W a distance of 1779.09 feet to a point;
Thence, S 8*56'10" E a distance of 650.00 feet to a point;
Thence, S 81*03'50" W a distance of 2323.21 feet to the centerline of
the Houma Navigation Canal right-of-way;
Thence, N 7*45'19" E on and along said centerline a distance of 187.31
feet to a point;
Thence, N 5*31'22" E on and along said centerline a distance of 485.97
feet to a point;
Thence, N 5*33'33" E on and along said centerline a distance of 404.43
feet to a point;
Thence, N 1*18'58" E on and along said centerline a distance of 889.50
feet to a point;
Thence, N 0*58'37" W on and along said centerline a distance of 33.43
feet to a point;
Thence, N 81*03'50" E on and along the centerline of Thompson Road a
distance of 3662.99 feet to the point of beginning, containing 146.243
acres.
Together with all the buildings and improvements now or hereafter situated
on the aforedescribed property and appurtenances, rights, ways, privileges,
servitudes, prescriptions, natural increases, accessions and advantages now
or hereafter belonging or in anywise appertaining thereto, including,
without limitation, all component parts of the aforedescribed property, and
all component parts of any building or other construction located on the
aforedescribed property, now or hereafter forming a part of or attached to
the aforedescribed property or used in connection therewith.
EXHIBIT F
FOURTH AMENDMENT TO
COMMERCIAL SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO COMMERCIAL SECURITY AGREEMENT (this
"AMENDMENT") is made and entered into as of August 21, 1998, by and among
GULF ISLAND FABRICATION, INC., a Louisiana corporation ("GRANTOR"), WHITNEY
NATIONAL BANK, a national banking association ("WHITNEY"), and FIRST
NATIONAL BANK OF COMMERCE, a national banking association ("FNBC"), in its
individual capacity and in its capacity as agent (the "AGENT") for Whitney
and FNBC (Whitney and FNBC being sometimes hereinafter referred to
collectively as the "BANKS"; the Banks and the Agent being sometimes herein
referred to collectively as "LENDER").
RECITALS:
WHEREAS, Grantor, Lender, and Margaret Bienvenu, wife of/and Alden J.
Laborde, and Angelina Mumphrey, wife of/and Huey J. Wilson, as intervenors,
previously entered into that certain Third Amended and Restated Revolving
Credit and Term Loan Agreement dated October 29, 1991 (as amended by that
certain First Amendment to Third Amended and Restated Revolving Credit and
Term Loan Agreement, dated effective as of July 20, 1992, by and among the
same parties, the "THIRD LOAN AGREEMENT");
WHEREAS, pursuant to the terms of the Third Loan Agreement, Grantor
executed and delivered to Lender that certain Commercial Security Agreement
(Multi-Purpose) dated October 29, 1991 (the "ORIGINAL SECURITY AGREEMENT"),
in order to secure certain of Grantor's obligations and liabilities to
Lender under the Third Loan Agreement;
WHEREAS, Grantor and Lender have subsequently entered into various
amendments, modifications, and restatements of the Third Loan Agreement and
of the security documents associated therewith, including, without
limitation, that certain First Amendment to Commercial Security Agreement
dated as of February 25, 1993, that certain Second Amendment to Commercial
Security Agreement dated as of October 24, 1996 and that certain Third
Amendment to Commercial Security Agreement dated as of May 1, 1997 (as so
amended, the Original Security Agreement shall be referred to as the
"AMENDED SECURITY AGREEMENT");
WHEREAS, Grantor, Dolphin Services, Inc., Southport, Inc., and Lender
are entering into that certain Seventh Amended and Restated Revolving
Credit Agreement effective as of the date hereof (together with any and all
amendments, modifications, supplements, renewals, or restatements thereof,
the "SEVENTH LOAN AGREEMENT"), which Seventh Loan Agreement amends and
restates the obligations of Grantor and Lender in their entirety;
WHEREAS, pursuant to the Seventh Loan Agreement, Grantor's obligations
to Lender are evidenced by, among other agreements, (i) that certain
Commercial Promissory Note (Revolving), of even date herewith, in the
principal sum of $10,000,000.00, payable to the order of FNBC, bearing
interest as specified in the Seventh Loan Agreement, and (ii) that certain
Commercial Promissory Note (Revolving), of even date herewith, in the
principal sum of $10,000,000.00, payable to the order of Whitney, bearing
interest as specified in the Seventh Loan Agreement (collectively, the
"REVOLVING NOTES"); and
WHEREAS, pursuant to the terms of the Seventh Loan Agreement, Grantor
has agreed to execute this Amendment in order to amend the Amended Security
Agreement to confirm that the Amended Security Agreement secures all of
Grantor's obligations and liabilities to Lender under the Seventh Loan
Agreement and the Revolving Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Amended Security
Agreement, and in consideration of the loans that may hereafter be made by
FNBC and Whitney to Grantor, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Grantor and
Lender hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 TERMS DEFINED IN THE ORIGINAL SECURITY AGREEMENT. Unless the
context otherwise requires or unless otherwise expressly defined herein or
in the recitals, the terms defined in the Original Security Agreement shall
have the same meanings whenever used in this Amendment.
1.2 DEFINED TERMS. Unless the context otherwise requires the
following terms when used in this Amendment shall have the meanings
assigned to them in this Section 1.2:
"AMENDMENT" shall mean this Fourth Amendment to Commercial
Security Agreement.
"NOTES" shall mean the Revolving Notes.
"SECURITY AGREEMENT" shall mean the Amended Security Agreement as
amended hereby.
ARTICLE 2
AMENDMENTS TO AMENDED SECURITY AGREEMENT
The second paragraph of APPENDIX A to the Amended Security
Agreement is hereby amended by deleting the current text thereof in its
entirety and inserting in lieu thereof the text of APPENDIX A attached
hereto and made a part hereof.
ARTICLE 3
MISCELLANEOUS
3.1 RATIFICATION OF AMENDED SECURITY AGREEMENT. The Amended Security
Agreement as hereby amended is hereby ratified and confirmed in all
respects. Any reference to the Original Security Agreement or the Amended
Security Agreement in any Loan Document shall be deemed to be a reference
to the Security Agreement. The effect of this Amendment is to amend the
Amended Security Agreement as set forth herein and nothing more. The
execution, delivery, and effectiveness of this Amendment shall not operate
as a waiver of any right, power, or remedy of Lender under the Seventh Loan
Agreement, the Notes, or any other Loan Document nor constitute a waiver of
any provision of the Seventh Loan Agreement, the Notes, or any other Loan
Document.
3.2 NO NOVATION. Nothing contained herein shall be considered or
construed to be a novation or discharge of the obligations of Grantor
heretofore evidenced by the Amended Security Agreement.
3.3 LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Seventh Loan Agreement pertaining to Loan Documents apply
hereto.
3.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Louisiana and any
applicable laws of the United States of America in all respects, including
construction, validity, and performance.
3.5 COUNTERPARTS. This Amendment may be separately executed in as
many counterparts as may be deemed necessary or convenient, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
GULF ISLAND FABRICATION, INC.
BY: ____________________________
Kerry J. Chauvin, President
FIRST NATIONAL BANK OF COMMERCE,
in its individual capacity and as Agent
By: ____________________________
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: ____________________________
Name: ____________________________
Title:____________________________
APPENDIX "A"
TO
FOURTH AMENDMENT TO COMMERCIAL SECURITY AGREEMENT
The term "INDEBTEDNESS" refers collectively to any and all obligations
and liabilities, whether now existing or hereafter arising, of Grantor to
Whitney National Bank, a national banking association ("WHITNEY"), and
First National Bank of Commerce, a national banking association ("FNBC"),
in its individual capacity and as agent (the "AGENT") for Whitney and FNBC,
arising under or in connection with that certain Seventh Amended and
Restated Revolving Credit Agreement dated August 21, 1998, by and among
Grantor, Dolphin Services, Inc., Southport, Inc., FNBC, in its individual
capacity and as Agent, and Whitney (as extended, modified, amended,
supplemented, renewed or restated from time to time, the "LOAN AGREEMENT"),
including, without limitation, all indebtedness and obligations evidenced
by (i) that certain Commercial Promissory Note (Revolving) dated August 21,
1998, in the principal sum of $10,000,000.00 executed by Grantor payable to
the order of FNBC as extended, modified, amended, supplemented or renewed
from time to time (the "FNBC REVOLVING NOTE"), and (ii) that certain
Commercial Promissory Note (Revolving) dated August 21, 1998, in the
principal sum of $10,000,000.00 executed by Grantor payable to the order of
Whitney as extended, modified, amended, supplemented or renewed from time
to time (the "WHITNEY REVOLVING NOTE" and, together with the FNBC Revolving
Note, collectively, the "NOTES"), (v) any letters of credit issued by
Lender on behalf of and for the account of Grantor or any of its
Subsidiaries in connection with the Loan Agreement (whether one or more,
collectively, the "LETTERS OF CREDIT"), (vi) any and all documents,
instruments, and agreements, including without limitation, mortgages,
assignments, pledge or security agreements, and financing statements,
delivered to Lender to secure any of the foregoing (whether one or more,
collectively, the "COLLATERAL DOCUMENTS"), and (vii) any and all principal,
interest, attorneys' fees, costs, charges, expenses, or fees of any kind or
nature whatsoever arising under or in connection with the Loan Agreement,
the Notes, the Letters of Credit, and/or the Collateral Documents.
EXHIBIT G
SECOND AMENDMENT TO
PLEDGE OF COLLATERAL MORTGAGE NOTE
(DOLPHIN SERVICES)
THIS SECOND AMENDMENT TO PLEDGE OF COLLATERAL MORTGAGE NOTE (DOLPHIN
SERVICES) (this "AMENDMENT") is made and entered into as of the 21st day of
August, 1998, by and among DOLPHIN SERVICES, INC., a Louisiana corporation
("GRANTOR"), WHITNEY NATIONAL BANK, a national banking association
("WHITNEY"), and FIRST NATIONAL BANK OF COMMERCE, a national banking
association ("FNBC"), in its individual capacity and in its capacity as
agent (the "AGENT") for Whitney and FNBC (Whitney and FNBC being sometimes
hereinafter referred to collectively as the "BANKS"; the Banks and the
Agent being sometimes herein referred to collectively as "LENDER").
RECITALS:
WHEREAS, Gulf Island Fabrication, Inc., the parent corporation of
Grantor ("BORROWER"), and Lender entered into that certain Fifth Amended
and Restated Revolving Credit and Term Loan Agreement effective as of
October 24, 1996 (together with any and all amendments, modifications,
supplements, renewals, or restatements thereof, the "FIFTH LOAN
AGREEMENT");
WHEREAS, as security for Borrower's obligations to Lender under the
Fifth Loan Agreement, Grantor granted unto and in favor of Banks a first
mortgage lien upon the Dolphin Services Real Estate (as defined and
described in the Fifth Loan Agreement), evidenced by the following
documents that Grantor has executed and delivered to Bank:
(1) that certain Collateral Mortgage Note of Grantor, dated
January 2, 1997, in the principal sum of THREE MILLION AND NO/100
DOLLARS ($3,000,000.00), bearing interest at the rate of eighteen
percent (18%) per annum from date until paid, and payable to the order
of Bearer (the "COLLATERAL NOTE");
(2) that certain Act of Collateral Mortgage of Grantor, dated
January 2, 1997, in favor of Agent and any and all future holders,
securing the Collateral Note, recorded in the mortgage records of
Terrebonne Parish, Louisiana, in MOB 1086, under Entry No. 989722 (as
supplemented, amended, and reinscribed from time to time, the
"COLLATERAL MORTGAGE"); and
(3) that certain Pledge of Collateral Mortgage Note, dated
January 2, 1997, by Grantor to Agent, with respect to the Collateral
Note (the "ORIGINAL PLEDGE AGREEMENT");
WHEREAS, Borrower and Lender have subsequently entered into various
amendments, modifications and restatements of the Fifth Loan Agreement
(collectively, the "EXISTING LOAN AGREEMENT") and of the security documents
associated therewith, including, without limitation, that certain First
Amendment to Pledge of Collateral Mortgage Note (Dolphin Services) dated as
of May 1, 1997 (as so amended, the Original Pledge Agreement shall be
referred to as the "AMENDED PLEDGE AGREEMENT");
WHEREAS, Borrower, Grantor, Southport, Inc., and Lender have entered
into that certain Seventh Amended and Restated Revolving Credit Agreement
effective as of the date hereof (together with any and all amendments,
modifications, supplements, renewals, or restatements thereof, the "SEVENTH
LOAN AGREEMENT"), which Seventh Loan Agreement amends and restates the
obligations of Borrower and Lender in their entirety;
WHEREAS, pursuant to the Seventh Loan Agreement, the Revolving Credit
Facility is now evidenced by (i) that certain Commercial Promissory Note
(Revolving), of even date herewith, in the principal sum of $10,000,000.00,
payable to the order of FNBC, and (ii) that certain Commercial Promissory
Note (Revolving), of even date herewith, in the principal sum of
$10,000,000.00, payable to the order of Whitney (collectively, the
"REVOLVING NOTES"); and
WHEREAS, pursuant to the terms of the Seventh Loan Agreement, Grantor
has agreed to execute this Amendment in order to amend the Amended Pledge
Agreement so that the Amended Pledge Agreement will secure all of
Borrower's or Grantor's obligations and liabilities to Lender under the
Seventh Loan Agreement and the Revolving Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Amended Pledge
Agreement, and in consideration of the loans that may hereafter be made by
FNBC and Whitney to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Lender hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 TERMS DEFINED IN THE ORIGINAL PLEDGE AGREEMENT. Unless the
context otherwise requires or unless otherwise expressly defined herein or
in the recitals, the terms defined in the Amended Pledge Agreement shall
have the same meanings whenever used in this Amendment.
1.2 DEFINED TERMS. Unless the context otherwise requires the
following terms when used in this Amendment shall have the meanings
assigned to them in this Section 1.2:
"AMENDMENT" shall mean this Second Amendment to Pledge of
Collateral Mortgage Note (Dolphin Services).
"NOTES" shall mean the Revolving Notes.
"PLEDGE AGREEMENT" shall mean the Amended Pledge Agreement as
amended hereby.
ARTICLE 2
AMENDMENTS TO AMENDED PLEDGE AGREEMENT
The second paragraph of APPENDIX A to the Amended Pledge Agreement
is hereby amended by deleting the current text thereof in its entirety and
inserting in lieu thereof the text of APPENDIX A attached hereto and made a
part hereof.
ARTICLE 3
MISCELLANEOUS
3.1 RATIFICATION OF ORIGINAL PLEDGE AGREEMENT. The Amended Pledge
Agreement as hereby amended is hereby ratified and confirmed in all
respects. Any reference to the Original Pledge Agreement in any Loan
Document shall be deemed to be a reference to the Pledge Agreement. The
effect of this Amendment is to amend the Amended Pledge Agreement as set
forth herein and nothing more. The execution, delivery, and effectiveness
of this Amendment shall not operate as a waiver of any right, power, or
remedy of Lender under the Seventh Loan Agreement, the Notes, or any other
Loan Document nor constitute a waiver of any provision of the Loan
Agreement, the Notes, or any other Loan Document.
3.2 NO NOVATION. Nothing contained herein, in the Seventh Loan
Agreement, or in any other Loan Document shall be considered or construed
to be a novation or discharge of the obligations of Borrower or Grantor
heretofore evidenced by the Existing Loan Agreement or the promissory notes
or credit facilities executed or established in connection therewith under
the Existing Loan Agreement. Instead, the Seventh Loan Agreement and Notes
constitute a restatement in their entirety of all such pre-existing
obligations of Borrower or Grantor.
3.3 LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Loan Agreement pertaining to Loan Documents apply hereto.
3.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Louisiana and any
applicable laws of the United States of America in all respects, including
construction, validity, and performance.
3.5 COUNTERPARTS. This Amendment may be separately executed in as
many counterparts as may be deemed necessary or convenient, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
DOLPHIN SERVICES, INC.
BY: ___________________________
Kerry J. Chauvin, President
FIRST NATIONAL BANK OF COMMERCE,
in its individual capacity and as Agent
By: ___________________________
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: __________________________
Name: __________________________
Title:__________________________
APPENDIX "A"
TO
SECOND AMENDMENT TO PLEDGE OF COLLATERAL MORTGAGE NOTE
(DOLPHIN SERVICES)
The term "INDEBTEDNESS" refers collectively to any and all obligations
and liabilities, whether now existing or hereafter arising, of Borrower or
Grantor to Whitney National Bank, a national banking association
("WHITNEY"), and First National Bank of Commerce, a national banking
association ("FNBC") , in its individual capacity and as agent (the
"AGENT") for Whitney and FNBC, arising under or in connection with that
certain Seventh Amended and Restated Revolving Credit Agreement, dated
August 21, 1998, by and among Borrower, Grantor, Southport, Inc., FNBC, in
its individual capacity and as Agent, and Whitney (as extended, modified,
amended, supplemented, renewed or restated from time to time, the "LOAN
AGREEMENT"), including, without limitation, all indebtedness and
obligations evidenced by (i) that certain Commercial Promissory Note
(Revolving) dated August 21, 1998, in the principal sum of $10,000,000.00
executed by Borrower payable to the order of FNBC as extended, modified,
amended, supplemented or renewed from time to time (the "FNBC REVOLVING
NOTE"), and (ii) that certain Commercial Promissory Note (Revolving) dated
August 21, 1998, in the principal sum of $10,000,000.00 executed by
Borrower payable to the order of Whitney as extended, modified, amended,
supplemented or renewed from time to time (the "WHITNEY REVOLVING NOTE"
and, together with the FNBC Revolving Note, collectively, the "NOTES"), (v)
any letters of credit issued by Lender on behalf of and for the account of
Borrower or any of its Subsidiaries in connection with the Loan Agreement
(whether one or more, collectively, the "LETTERS OF CREDIT"), (vi) any
guaranties by any Subsidiary of Borrower (whether one or more,
collectively, the "GUARANTY"), (vii) any and all documents, instruments,
and agreements, including without limitation, mortgages, assignments,
pledge or security agreements, and financing statements, delivered to
Lender to secure any of the foregoing, whether executed by Borrower or any
Subsidiary (whether one or more, collectively, the "COLLATERAL DOCUMENTS"),
and (viii) any and all principal, interest, attorneys' fees, costs,
charges, expenses, or fees of any kind or nature whatsoever arising under
or in connection with the Loan Agreement, the Notes, the Letters of
Credit, the Guaranty, and/or the Collateral Documents.
EXHIBIT H
SECOND AMENDMENT TO
PLEDGE OF COLLATERAL MORTGAGE NOTE
(DOLPHIN SERVICES, AS SUCCESSOR TO DOLPHIN SALES)
THIS SECOND AMENDMENT TO PLEDGE OF COLLATERAL MORTGAGE NOTE (DOLPHIN
SERVICES, AS SUCCESSOR TO DOLPHIN SALES) (this "AMENDMENT") is made and
entered into as of the 21st day of August, 1998, by and among DOLPHIN
SERVICES, INC., a Louisiana corporation and successor-by-merger to Dolphin
Sales & Rentals, Inc. ("GRANTOR"), WHITNEY NATIONAL BANK, a national
banking association ("WHITNEY"), and FIRST NATIONAL BANK OF COMMERCE, a
national banking association ("FNBC"), in its individual capacity and in
its capacity as agent (the "AGENT") for Whitney and FNBC (Whitney and FNBC
being sometimes hereinafter referred to collectively as the "BANKS"; the
Banks and the Agent being sometimes herein referred to collectively as
"LENDER").
RECITALS:
WHEREAS, Gulf Island Fabrication, Inc., the parent corporation of
Grantor ("BORROWER"), and Lender entered into that certain Fifth Amended
and Restated Revolving Credit and Term Loan Agreement effective as of
October 24, 1996 (together with any and all amendments, modifications,
supplements, renewals, or restatements thereof, the "FIFTH LOAN
AGREEMENT");
WHEREAS, as security for Borrower's obligations to Lender under the
Fifth Loan Agreement, Dolphin Sales & Rentals, Inc., predecessor-by-merger
to Grantor ("DOLPHIN SALES"), granted unto and in favor of Banks a first
mortgage lien upon the Dolphin Sales Real Estate (as defined and described
in the Fifth Loan Agreement), evidenced by the following documents that
Grantor has executed and delivered to Bank:
(1) that certain Collateral Mortgage Note of Dolphin Sales, dated
January 2, 1997, in the principal sum of THREE MILLION AND NO/100
DOLLARS ($3,000,000.00), bearing interest at the rate of eighteen
percent (18%) per annum from date until paid, and payable to the order
of Bearer (the "COLLATERAL NOTE");
(2) that certain Act of Collateral Mortgage of Dolphin Sales,
dated January 2, 1997, in favor of Agent and any and all future
holders, securing the Collateral Note, recorded in the mortgage
records of Terrebonne Parish, Louisiana, in MOB 1086, under Entry No.
989723 (as supplemented, amended, and reinscribed from time to time,
the "COLLATERAL MORTGAGE"); and
(3) that certain Pledge of Collateral Mortgage Note, dated
January 2, 1997, by Dolphin Sales to Agent, with respect to the
Collateral Note (the "ORIGINAL PLEDGE AGREEMENT");
WHEREAS, Borrower and Lender have subsequently entered into various
amendments, modifications and restatements of the Fifth Loan Agreement
(collectively, the "EXISTING LOAN AGREEMENT") and of the security documents
associated therewith, including, without limitation, that certain First
Amendment to the Pledge of Collateral Mortgage Note (Dolphin Services, as
successor to Dolphin Sales) dated as of May 1, 1997 (as so amended, the
Original Pledge Agreement shall be referred to as the "AMENDED PLEDGE
AGREEMENT");
WHEREAS, Borrower, Grantor, Southport, Inc., and Lender have entered
into that certain Seventh Amended and Restated Revolving Credit Agreement
effective as of the date hereof (together with any and all amendments,
modifications, supplements, renewals, or restatements thereof, the "SEVENTH
LOAN AGREEMENT"), which Seventh Loan Agreement amends and restates the
obligations of Borrower and Lender in their entirety;
WHEREAS, pursuant to the Seventh Loan Agreement, the Revolving Credit
Facility is now evidenced by (i) that certain Commercial Promissory Note
(Revolving), of even date herewith, in the principal sum of $10,000,000.00,
payable to the order of FNBC, and (ii) that certain Commercial Promissory
Note (Revolving), of even date herewith, in the principal sum of
$10,000,000.00, payable to the order of Whitney (collectively, the
"REVOLVING NOTES"); and
WHEREAS, pursuant to the terms of the Seventh Loan Agreement, Grantor
has agreed to execute this Amendment in order to amend the Amended Pledge
Agreement so that the Amended Pledge Agreement will secure all of
Borrower's or Grantor's obligations and liabilities to Lender under the
Seventh Loan Agreement and the Revolving Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Amended Pledge
Agreement, and in consideration of the loans that may hereafter be made by
FNBC and Whitney to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Lender hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 TERMS DEFINED IN THE ORIGINAL PLEDGE AGREEMENT. Unless the
context otherwise requires or unless otherwise expressly defined herein or
in the recitals, the terms defined in the Original Pledge Agreement shall
have the same meanings whenever used in this Amendment.
1.2 DEFINED TERMS. Unless the context otherwise requires the
following terms when used in this Amendment shall have the meanings
assigned to them in this Section 1.2:
"AMENDMENT" shall mean this Second Amendment to Pledge of
Collateral Mortgage Note (Dolphin Services, as successor to
Dolphin Sales).
"NOTES" shall mean the Revolving Notes.
"PLEDGE AGREEMENT" shall mean the Amended Pledge Agreement as
amended hereby.
ARTICLE 2
AMENDMENTS TO AMENDED PLEDGE AGREEMENT
The second paragraph of APPENDIX A to the Amended Pledge Agreement is
hereby amended by deleting the current text thereof in its entirety and
inserting in lieu thereof the text of APPENDIX A attached hereto and made a
part hereof.
ARTICLE 3
MISCELLANEOUS
3.1 RATIFICATION OF AMENDED PLEDGE AGREEMENT. The Amended Pledge
Agreement as hereby amended is hereby ratified and confirmed in all
respects. Any reference to the Original Pledge Agreement in any Loan
Document shall be deemed to be a reference to the Pledge Agreement. The
effect of this Amendment is to amend the Amended Pledge Agreement as set
forth herein and nothing more. The execution, delivery, and effectiveness
of this Amendment shall not operate as a waiver of any right, power, or
remedy of Lender under the Loan Agreement, the Notes, or any other Loan
Document nor constitute a waiver of any provision of the Loan Agreement,
the Notes, or any other Loan Document.
3.2 NO NOVATION. Nothing contained herein, in the Seventh Loan
Agreement, or in any other Loan Document shall be considered or construed
to be a novation or discharge of the obligations of Borrower or Grantor
heretofore evidenced by the Existing Loan Agreement or the promissory notes
or credit facilities executed or established in connection therewith under
the Existing Loan Agreement. Instead, the Seventh Loan Agreement and Notes
constitute a restatement in their entirety of all such pre-existing
obligations of Borrower or Grantor.
3.3 LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Loan Agreement pertaining to Loan Documents apply hereto.
3.4 GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Louisiana and any applicable
laws of the United States of America in all respects, including
construction, validity, and performance.
3.5 COUNTERPARTS. This Amendment may be separately executed in as
many counterparts as may be deemed necessary or convenient, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
DOLPHIN SERVICES, INC.
BY: ___________________________
Kerry J. Chauvin, President
FIRST NATIONAL BANK OF COMMERCE,
in its individual capacity and as Agent
By: ___________________________
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: _________________________
Name: _________________________
Title:_________________________
APPENDIX "A"
TO
SECOND AMENDMENT TO PLEDGE OF COLLATERAL MORTGAGE NOTE
(DOLPHIN SERVICES, AS SUCCESSOR TO DOLPHIN SALES)
The term "INDEBTEDNESS" refers collectively to any and all obligations
and liabilities, whether now existing or hereafter arising, of Borrower or
Grantor to Whitney National Bank, a national banking association
("WHITNEY"), and First National Bank of Commerce, a national banking
association ("FNBC") , in its individual capacity and as agent (the
"AGENT") for Whitney and FNBC, arising under or in connection with that
certain Seventh Amended and Restated Revolving Credit Agreement, dated
August 21, 1998, by and among Borrower, Grantor, Southport, Inc., FNBC, in
its individual capacity and as Agent, and Whitney (as extended, modified,
amended, supplemented, renewed or restated from time to time, the "LOAN
AGREEMENT"), including, without limitation, all indebtedness and
obligations evidenced by (i) that certain Commercial Promissory Note
(Revolving) dated August 21, 1998, in the principal sum of $10,000,000.00
executed by Borrower payable to the order of FNBC as extended, modified,
amended, supplemented or renewed from time to time (the "FNBC REVOLVING
NOTE"), and (ii) that certain Commercial Promissory Note (Revolving) dated
August 21, 1998, in the principal sum of $10,000,000.00 executed by
Borrower payable to the order of Whitney as extended, modified, amended,
supplemented or renewed from time to time (the "WHITNEY REVOLVING NOTE"
and, together with the FNBC Revolving Note, collectively, the "NOTES"), (v)
any letters of credit issued by Lender on behalf of and for the account of
Borrower or any of its Subsidiaries in connection with the Loan Agreement
(whether one or more, collectively, the "LETTERS OF CREDIT"), (vi) any
guaranties by any Subsidiary of Borrower (whether one or more,
collectively, the "GUARANTY"), (vii) any and all documents, instruments,
and agreements, including without limitation, mortgages, assignments,
pledge or security agreements, and financing statements, delivered to
Lender to secure any of the foregoing, whether executed by Borrower or any
Subsidiary (whether one or more, collectively, the "COLLATERAL DOCUMENTS"),
and (viii) any and all principal, interest, attorneys' fees, costs,
charges, expenses, or fees of any kind or nature whatsoever arising under
or in connection with the Loan Agreement, the Notes, the Letters of Credit,
the Guaranty, and/or the Collateral Documents.
EXHIBIT I
SECOND AMENDMENT TO
COMMERCIAL SECURITY AGREEMENT
(DOLPHIN SERVICES)
THIS SECOND AMENDMENT TO COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(this "AMENDMENT") is made and entered into as of the 21st day of August,
1998, by and among DOLPHIN SERVICES, INC., a Louisiana corporation
("GRANTOR"), WHITNEY NATIONAL BANK, a national banking association
("WHITNEY"), and FIRST NATIONAL BANK OF COMMERCE, a national banking
association ("FNBC"), in its individual capacity and in its capacity as
agent (the "AGENT") for Whitney and FNBC (Whitney and FNBC being sometimes
hereinafter referred to collectively as the "BANKS"; the Banks and the
Agent being sometimes herein referred to collectively as "LENDER").
RECITALS:
WHEREAS, Gulf Island Fabrication, Inc., the parent corporation of
Grantor ("BORROWER"), and Lender entered into that certain Fifth Amended
and Restated Revolving Credit and Term Loan Agreement effective as of
October 24, 1996 (together with any and all amendments, modifications,
supplements, renewals, or restatements thereof, the "FIFTH LOAN
AGREEMENT");
WHEREAS, pursuant to the terms of the Fifth Loan Agreement, Grantor
executed and delivered to Lender that certain Commercial Pledge and
Security Agreement dated January 2, 1997 (the "ORIGINAL SECURITY
AGREEMENT"), in order to secure Borrower's and Grantor's obligations and
liabilities to Lender under the Fifth Loan Agreement;
WHEREAS, Borrower and Lender have subsequently entered into various
amendments, modifications and restatements of the Fifth Loan Agreement
(collectively, the "EXISTING LOAN AGREEMENT") and of the security documents
associated therewith, including, without limitation, that certain First
Amendment to Commercial Security Agreement (Dolphin Services) dated as of
May 1, 1997 (as so amended, the Original Security Agreement shall be
referred to as the "AMENDED SECURITY AMENDMENT");
WHEREAS, Borrower, Grantor, Southport, Inc., and Lender have entered
into that certain Seventh Amended and Restated Revolving Credit Agreement
effective as of the date hereof (together with any and all amendments,
modifications, supplements, renewals, or restatements thereof, the "SEVENTH
LOAN AGREEMENT"), which Seventh Loan Agreement amends and restates the
obligations of Borrower and Lender in their entirety;
WHEREAS, pursuant to the Seventh Loan Agreement, the Revolving Credit
Facility is evidenced by (i) that certain Commercial Promissory Note
(Revolving), of even date herewith, in the principal sum of $10,000,000.00,
payable to the order of FNBC, and (ii) that certain Commercial Promissory
Note (Revolving), of even date herewith, in the principal sum of
$10,000,000.00, payable to the order of Whitney (collectively, the
"REVOLVING NOTES"); and
WHEREAS, pursuant to the terms of the Seventh Loan Agreement, Grantor
has agreed to execute this Amendment in order to amend the Amended Security
Agreement to confirm that the Amended Security Agreement will secure all
of Borrower's and Grantor's obligations and liabilities to Lender under the
Seventh Loan Agreement and the Revolving Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Amended Security
Agreement, and in consideration of the loans that may hereafter be made by
FNBC and Whitney to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Lender hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 TERMS DEFINED IN THE ORIGINAL SECURITY AGREEMENT. Unless the
context otherwise requires or unless otherwise expressly defined herein or
in the recitals, the terms defined in the Amended Security Agreement shall
have the same meanings whenever used in this Amendment.
1.2 DEFINED TERMS. Unless the context otherwise requires the
following terms when used in this Amendment shall have the meanings
assigned to them in this Section 1.2:
"AMENDMENT" shall mean this Second Amendment to Commercial
Security Agreement (Dolphin Services).
"NOTES" shall mean the Revolving Notes.
"SECURITY AGREEMENT" shall mean the Amended Security Agreement as
amended hereby.
ARTICLE 2
AMENDMENTS TO ORIGINAL SECURITY AGREEMENT
The second paragraph of APPENDIX A to the Amended Security
Agreement is hereby amended by deleting the current text thereof in its
entirety and inserting in lieu thereof the text of APPENDIX A attached
hereto and made a part hereof.
ARTICLE 3
MISCELLANEOUS
3.1 RATIFICATION OF ORIGINAL SECURITY AGREEMENT. The Amended
Security Agreement as hereby amended is hereby ratified and confirmed in
all respects. Any reference to the Original Security Agreement or the
Amended Security Agreement in any Loan Document shall be deemed to be a
reference to the Amended Security Agreement. The effect of this Amendment
is to amend the Amended Security Agreement as set forth herein and nothing
more. The execution, delivery, and effectiveness of this Amendment shall
not operate as a waiver of any right, power, or remedy of Lender under the
Seventh Loan Agreement, the Notes, or any other Loan Document nor
constitute a waiver of any provision of the Loan Agreement, the Notes, or
any other Loan Document.
3.2 NO NOVATION. Nothing contained herein, in the Seventh Loan
Agreement, or in any other Loan Document shall be considered or construed
to be a novation or discharge of the obligations of Borrower or Grantor
heretofore evidenced by the Existing Loan Agreement or the promissory notes
or credit facilities executed or established in under the Existing Loan
Agreement. Instead, the Seventh Loan Agreement and Notes constitute a
restatement in their entirety of all such pre-existing obligations of
Borrower or Grantor.
3.3 LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Loan Agreement pertaining to Loan Documents apply hereto.
3.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Louisiana and any
applicable laws of the United States of America in all respects, including
construction, validity, and performance.
3.5 COUNTERPARTS. This Amendment may be separately executed in as
many counterparts as may be deemed necessary or convenient, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
DOLPHIN SERVICES, INC.
BY:____________________________
Kerry J. Chauvin, President
FIRST NATIONAL BANK OF COMMERCE,
in its individual capacity and as Agent
By:____________________________
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: _________________________
Name: _________________________
Title:_________________________
APPENDIX "A"
TO
SECOND AMENDMENT TO COMMERCIAL SECURITY AGREEMENT
(DOLPHIN SERVICES)
The term "INDEBTEDNESS" refers collectively to any and all obligations
and liabilities, whether now existing or hereafter arising, of Borrower or
Grantor to Whitney National Bank, a national banking association
("WHITNEY"), and First National Bank of Commerce, a national banking
association ("FNBC") , in its individual capacity and as agent (the
"AGENT") for Whitney and FNBC, arising under or in connection with that
certain Seventh Amended and Restated Revolving Credit Agreement, dated
August 21, 1998, by and among Borrower, Grantor, Southport, Inc., FNBC, in
its individual capacity and as Agent, and Whitney (as extended, modified,
amended, supplemented, renewed or restated from time to time, the "LOAN
AGREEMENT"), including, without limitation, all indebtedness and
obligations evidenced by (i) that certain Commercial Promissory Note
(Revolving) dated August 21, 1998, in the principal sum of $10,000,000.00
executed by Borrower payable to the order of FNBC as extended, modified,
amended, supplemented or renewed from time to time (the "FNBC REVOLVING
NOTE"), and (ii) that certain Commercial Promissory Note (Revolving) dated
August 21, 1998, in the principal sum of $10,000,000.00 executed by
Borrower payable to the order of Whitney as extended, modified, amended,
supplemented or renewed from time to time (the "WHITNEY REVOLVING NOTE"
and, together with the FNBC Revolving Note, collectively, the "NOTES"), (v)
any letters of credit issued by Lender on behalf of and for the account of
Borrower or any of its Subsidiaries in connection with the Loan Agreement
(whether one or more, collectively, the "LETTERS OF CREDIT"), (vi) any
guaranties by any Subsidiary of Borrower (whether one or more,
collectively, the "GUARANTY"), (vii) any and all documents, instruments,
and agreements, including without limitation, mortgages, assignments,
pledge or security agreements, and financing statements, delivered to
Lender to secure any of the foregoing, whether executed by Borrower or any
Subsidiary (whether one or more, collectively, the "COLLATERAL DOCUMENTS"),
and (viii) any and all principal, interest, attorneys' fees, costs,
charges, expenses, or fees of any kind or nature whatsoever arising under
or in connection with the Loan Agreement, the Notes, the Letters of
Credit, the Guaranty, and/or the Collateral Documents.
EXHIBIT J
SECOND AMENDMENT TO
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(this "AMENDMENT") is made and entered into as of August 21, 1998, by and
among GULF ISLAND FABRICATION, INC., a Louisiana corporation ("GRANTOR"),
WHITNEY NATIONAL BANK, a national banking association ("WHITNEY"), and
FIRST NATIONAL BANK OF COMMERCE, a national banking association ("FNBC"),
in its individual capacity and in its capacity as agent (the "AGENT") for
Whitney and FNBC (Whitney and FNBC being sometimes hereinafter referred to
collectively as the "BANKS"; the Banks and the Agent being sometimes herein
referred to collectively as "LENDER").
RECITALS:
WHEREAS, Grantor and Lender entered into that certain Fifth Amended
and Restated Revolving Credit and Term Loan Agreement effective as of
October 24, 1996 (together with any and all amendments, modifications,
supplements, renewals, or restatements thereof, the "FIFTH LOAN
AGREEMENT");
WHEREAS, pursuant to the terms of the Fifth Loan Agreement, Grantor
executed and delivered to Lender that certain Commercial Pledge and
Security Agreement dated January 2, 1997 (the "ORIGINAL SECURITY
AGREEMENT"), in order to secure Grantor's obligations and liabilities to
Lender under the Fifth Loan Agreement;
WHEREAS, Grantor and Lender have subsequently entered into various
amendments, modifications and restatements of the Fifth Loan Agreement and
of the security documents associated therewith, including, without
limitation, that certain First Amendment to Commercial Pledge and Security
Agreement dated as of May 1, 1997 (as so amended, the Original Agreement
shall be referred to as the "AMENDED SECURITY AGREEMENT").
WHEREAS, Grantor, Dolphin Services, Inc., Southport, Inc., and Lender
are entering into that certain Seventh Amended and Restated Revolving
Credit Agreement effective as of the date hereof (together with any and all
amendments, modifications, supplements, renewals, or restatements thereof,
the "SEVENTH LOAN AGREEMENT"), which Seventh Loan Agreement amends and
restates the obligations of Grantor and Lender in their entirety;
WHEREAS, Grantor's obligations under the Seventh Loan Agreement are
now evidenced by, among other agreements, (i) that certain Commercial
Promissory Note (Revolving), of even date herewith, in the principal sum of
$10,000,000.00, payable to the order of FNBC, bearing interest as specified
in the Seventh Loan Agreement, and (ii) that certain Commercial Promissory
Note (Revolving), of even date herewith, in the principal sum of
$10,000,000.00, payable to the order of Whitney, bearing interest as
specified in the Seventh Loan Agreement (collectively, the "REVOLVING
NOTES"); and
WHEREAS, pursuant to the terms of the Seventh Loan Agreement, Grantor
has agreed to execute this Amendment in order to amend the Amended Security
Agreement to confirm that the Amended Security Agreement secures all of
Grantor's obligations and liabilities to Lender under the Seventh Loan
Agreement and the Revolving Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Amended Security
Agreement, and in consideration of the loans that may hereafter be made by
FNBC and Whitney to Grantor, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Grantor and
Lender hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 TERMS DEFINED IN THE ORIGINAL SECURITY AGREEMENT. Unless the
context otherwise requires or unless otherwise expressly defined herein or
in the recitals, the terms defined in the Original Security Agreement shall
have the same meanings whenever used in this Amendment.
1.2 DEFINED TERMS. Unless the context otherwise requires the
following terms when used in this Amendment shall have the meanings
assigned to them in this Section 1.2:
"AMENDMENT" shall mean this Second Amendment to Commercial Pledge
and Security Agreement.
"NOTES" shall mean the Revolving Notes.
"SECURITY AGREEMENT" shall mean the Amended Security Agreement as
amended hereby.
ARTICLE 2
AMENDMENTS TO AMENDED SECURITY AGREEMENT
Paragraph 1 of APPENDIX A to the Amended Security Agreement is
hereby amended by deleting the current text thereof in its entirety and
inserting in lieu thereof the text of APPENDIX A attached hereto and made a
part hereof.
ARTICLE 3
MISCELLANEOUS
3.1 RATIFICATION OF AMENDED SECURITY AGREEMENT. The Amended Security
Agreement as hereby amended is hereby ratified and confirmed in all
respects. Any reference to the Original Security Agreement or the Amended
Security Agreement in any Loan Document shall be deemed to be a reference
to the Amended Security Agreement. The effect of this Amendment is to
amend the Amended Security Agreement as set forth herein and nothing more.
The execution, delivery, and effectiveness of this Amendment shall not
operate as a waiver of any right, power, or remedy of Lender under the
Seventh Loan Agreement, the Notes, or any other Loan Document nor
constitute a waiver of any provision of the Seventh Loan Agreement, the
Notes, or any other Loan Document.
3.2 NO NOVATION. Nothing contained herein shall be considered or
construed to be a novation or discharge of the obligations of Grantor
heretofore evidenced by the Original Security Agreement.
3.3 LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Seventh Loan Agreement pertaining to Loan Documents apply
hereto.
3.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Louisiana and any
applicable laws of the United States of America in all respects, including
construction, validity, and performance.
3.5 COUNTERPARTS. This Amendment may be separately executed in as
many counterparts as may be deemed necessary or convenient, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all such counterparts shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the
date first above written.
GULF ISLAND FABRICATION, INC.
BY: ___________________________
Kerry J. Chauvin, President
FIRST NATIONAL BANK OF COMMERCE,
in its individual capacity and as Agent
By: ___________________________
J. Charles Freel, Jr.,
Senior Vice President
WHITNEY NATIONAL BANK
By: _________________________
Name: _________________________
Title:_________________________
APPENDIX "A"
TO
SECOND AMENDMENT TO COMMERCIAL PLEDGE
AND SECURITY AGREEMENT
The term "INDEBTEDNESS" refers collectively to any and all obligations
and liabilities, whether now existing or hereafter arising, of Grantor to
Whitney National Bank, a national banking association ("WHITNEY"), and
First National Bank of Commerce, a national banking association ("FNBC") ,
in its individual capacity and as agent (the "AGENT") for Whitney and FNBC,
arising under or in connection with that certain Seventh Amended and
Restated Revolving Credit Agreement, dated August 21, 1998, by and among
Grantor, Dolphin Services, Inc., Southport, Inc., FNBC, in its individual
capacity and as Agent, and Whitney (as extended, modified, amended,
supplemented, renewed or restated from time to time, the "LOAN AGREEMENT"),
including, without limitation, all indebtedness and obligations evidenced
by (i) that certain Commercial Promissory Note (Revolving) dated August 21,
1998, in the principal sum of $10,000,000.00 executed by Grantor payable to
the order of FNBC as extended, modified, amended, supplemented or renewed
from time to time (the "FNBC REVOLVING NOTE"), and (ii) that certain
Commercial Promissory Note (Revolving) dated August 21, 1998, in the
principal sum of $10,000,000.00 executed by Grantor payable to the order of
Whitney as extended, modified, amended, supplemented or renewed from time
to time (the "WHITNEY REVOLVING NOTE" and, together with the FNBC Revolving
Note, collectively, the "NOTES"), (v) any letters of credit issued by
Lender on behalf of and for the account of Grantor or any of its
Subsidiaries in connection with the Loan Agreement (whether one or more,
collectively, the "LETTERS OF CREDIT"), (vi) any and all documents,
instruments, and agreements, including without limitation, mortgages,
assignments, pledge or security agreements, and financing statements,
delivered to Lender to secure any of the foregoing (whether one or more,
collectively, the "COLLATERAL DOCUMENTS"), and (vii) any and all principal,
interest, attorneys' fees, costs, charges, expenses, or fees of any kind or
nature whatsoever arising under or in connection with the Loan Agreement,
the Notes, the Letters of Credit, and/or the Collateral Documents.
EXHIBIT K
BORROWER'S DEFAULT AND WARRANTY CERTIFICATE
I, the undersigned President of Gulf Island Fabrication, Inc., a
Louisiana corporation ("BORROWER"), do hereby certify that:
1. I am the President of Borrower;
2. No Event of Default, as such term is defined in the Seventh
Amended and Restated Revolving Credit Agreement, dated effective as of
August 21, 1998, by and among Borrower, Whitney National Bank ("WHITNEY"),
and First National Bank of Commerce ("FNBC"), in its individual capacity
and in its capacity as agent for Whitney and FNBC (as amended from time to
time, the "AGREEMENT"), has occurred and is continuing as of the date of
this Certificate; and
3. The representations and warranties set forth in Section 5 of the
Agreement are true and correct as of the date of this Certificate; except
for such changes as are specifically permitted thereunder.
Executed as of ______, 199_.
______________________________
KERRY J. CHAUVIN, PRESIDENT
EXHIBIT L
TO SEVENTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
A. LIST OF COLLATERAL DOCUMENTS
1. Collateral Mortgage Note of GIF, dated December 17, 1986, in
the principal sum of $6,500,000.00, bearing interest at the
rate of eighteen percent (18%), per annum, from date until
paid, and payable to the order of Bearer
a. Act of Correction of Collateral Mortgage Note by GIF,
First NBC and William H. Hines, dated July 27, 1989,
correcting item 1 above
2. Act of Collateral Mortgage of GIF, dated December 17, 1986, in
favor of Mortgagee and any and all future holders, recorded in
the mortgage records of Terrebonne Parish, Louisiana, in
Mortgage Book No. 728, folio 323, under Entry No. 794226,
which mortgage secures the note described in item 1 above
a. Act of Supplement and Amendment to Act of Collateral
Mortgage by GIF in favor of Mortgagee and any and all
future holders, dated July 27, 1989, recorded in the
mortgage records of Terrebonne Parish, Louisiana, in
Mortgage Book No. 811, folio 143, under Entry No. 850040,
amending and supplementing item 2 above
3. Collateral Pledge Agreement and Receipt No. 32070, dated
December 17, 1986, by GIF to First NBC, with respect to the
note described in item 1 above
a. First Amendment to Collateral Pledge Agreement, dated as
of November 3, 1987, by and between GIF and First NBC,
amending item 3 above
b. Second Amendment to Collateral Pledge Agreement, dated
July 27, 1989, by and between GIF and First NBC, amending
item 3 above
4. Collateral Pledge Agreement and Receipt (Possessory Collateral
Security Agreement) No. 1000107, dated March 1, 1990, by
Borrower to First NBC, with respect to the note described in
item 1 above
5. Collateral Mortgage Note of Borrower dated October 29, 1991 in
the principal sum of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00) bearing interest at the rate of eighteen
percent (18%) per annum from date until paid and payable to
the order of Bearer
6. Act of Collateral Mortgage of Borrower dated October 29, 1991
in favor of Mortgagee and any and all future holders, which
mortgage secures the note described in item 5 above
7. Collateral Pledge Agreement and Receipt (Possessory Collateral
Security Agreement) No. 1000760, dated October 29, 1991, by
Borrower to Agent with respect to the notes described in items
1 and 5 above
a. First Amendment to Collateral Pledge Agreement and Receipt
(Possessory Collateral Security Agreement), dated
February 25, 1993, by and among Borrower, Banks and Agent,
amending item 7 above
b. Second Amendment to Collateral Pledge Agreement and
Receipt (Possessory Collateral Security Agreement), dated
October 24, 1996, by and among Borrower, Banks and Agent,
amending item 7 above
c. Third Amendment to Collateral Pledge Agreement and Receipt
(Possessory Collateral Security Agreement), dated May 1,
1997, by and among Borrower, Banks, and Agent, amending
item 7 above
d. Fourth Amendment to Collateral Pledge Agreement and
Receipt (Possessory Collateral Security Agreement), dated
August 21, 1998, by and among Borrower, Banks, and Agent,
amending item 7 above
8. Collateral Assignment of Leases and Rents by Borrower dated
October 29, 1991
a. First Amendment to Collateral Assignment of Leases and
Rents, dated February 25, 1993 by and among Borrower,
Banks and Agent, amending item 8 above
b. Second Amendment to Collateral Assignment of Leases and
Rents dated October 24, 1996 by and among Borrower, Banks
and Agent, amending item 8 above
c. Third Amendment to Collateral Assignment of Leases and
Rents dated May 1, 1997, by and among Borrower, Banks and
Agent, amending item 8 above
d. Fourth Amendment to Collateral Assignment of Leases and
Rents dated August 21, 1998, by and among Borrower, Banks
and Agent, amending item 8 above
9. Collateral Chattel Mortgage Note of GIF dated December 17,
1986, in the principal sum of $3,000,000.00, bearing interest
at the rate of eighteen percent (18%), per annum, from date
until paid, and payable to the order of Bearer (a copy of
which is annexed to the Fourth Loan Agreement)
10. Act of Collateral Chattel Mortgage of GIF, dated December 17,
1986, in favor of Bearer of Collateral Chattel Mortgage Note,
recorded in the chattel mortgage records of Terrebonne Parish,
Louisiana, in Chattel Mortgage Book, Entry No. 794225, which
mortgage secures the note described in item 9 above
a. Partial Release of Collateral Chattel Mortgage, dated
February 4, 1987, by First NBC in favor of GIF, amending
item 9 above
11. Collateral Pledge Agreement and Receipt No. 32069, dated
December 17, 1986, by GIF to First NBC, with respect to the
note described in item 9 above
a. First Amendment to Collateral Pledge Agreement, dated as
of November 3, 1987, by and between GIF and First NBC,
amending item 11 above
b. Second Amendment to Collateral Pledge Agreement, dated
July 27, 1989, by and between GIF and First NBC, amending
item 11 above
12. Collateral Chattel Mortgage Note of GIF dated July 27, 1989,
in the principal sum of $8,000,000.00, bearing interest at the
rate of eighteen percent (18%), per annum, from date until
paid and payable to the order of Bearer.
13. Act of Collateral Chattel Mortgage of GIF dated July 27, 1989,
in favor of Bearer of Collateral Chattel Mortgage Note,
recorded in the chattel mortgage records of Terrebonne Parish,
Louisiana, in Chattel Mortgage Book, Entry No. 850041, which
mortgage secures the note described in item 12 above.
14. Collateral Pledge Agreement and Receipt No. 37588, dated July
27, 1989, by GIF to First NBC, with respect to the note
described in item 12 above.
15. Collateral Chattel Mortgage Note of GIFI, dated July 27, 1989,
in the principal sum of $8,000,000.00, bearing interest at the
rate of eighteen percent (18%), per annum, from date until
paid and payable to the order of Bearer.
16. Act of Collateral Chattel Mortgage of GIFI, dated July 27,
1989, in favor of Bearer of Collateral Chattel Mortgage Note,
recorded in the chattel mortgage records of East Baton Rouge
Parish, Louisiana, under Chattel No. 1046292, which mortgage
secures the note described in item 15 above.
17. Collateral Pledge Agreement and Receipt No. 37596, dated July
27, 1989, by GIFI to First NBC with respect to the note
described in item 15 above.
18. Commercial Security Agreement (Multi-Purpose) dated October
29, 1991 by and among Borrower, Banks and Agent.
a. First Amendment to Commercial Security Agreement, dated
February 25, 1993, by and among Borrower, Banks and Agent,
amending item 18 above
b. Second Amendment to Commercial Security Agreement, dated
October 24, 1996, by and among Borrower, Banks and Agent,
amending item 18 above
c. Third Amendment to Commercial Security Agreement, dated
May 1, 1997, by and among Borrower, Banks, and Agent,
amending item 18 above
d. Fourth Amendment to Commercial Security Agreement, dated
August 21, 1998, by and among Borrower, Banks, and Agent,
amending item 18 above
19. A UCC-1 Financing Statement executed by Borrower and Agent in
connection with the security agreement described in item 18
above
20. Commercial Pledge and Security Agreement, dated January 2,
1997, by Borrower, as pledgor, in favor of First NBC, as Agent
for Banks, as pledgee
a. First Amendment to Commercial Pledge and Security
Agreement, dated May 1, 1997, by and among Borrower, Banks
and Agent, amending item 20 above
b. Second Amendment to Commercial Pledge and Security
Agreement, dated August 21, 1998, by and among Borrower,
Banks and Agent, amending item 20 above
21. UCC-1 Financing Statement by Borrower executed by Borrower in
connection with the security agreement described in item 20
above
22. Commercial Guaranty by Dolphin Services, dated January 2,
1997, in favor of First NBC, as Agent for Banks
23. Collateral Mortgage Note by Dolphin Services, dated January 2,
1997, in the principal sum of $3,000,000.00, bearing interest
at the rate of eighteen percent (18%) per annum, from date
until paid, and payable to the order of Bearer
24. Collateral Mortgage by Dolphin Services, dated January 2,
1997, in favor of First NBC, as Agent for Banks, and any and
all future holders, recorded in Terrebonne Parish, Louisiana
in MOB 1086, Entry No. 989722, which mortgage secures the note
described in item 23 above
25. Pledge of Collateral Mortgage Note, dated January 2, 1997, by
Dolphin Services to First NBC, as Agent for Banks, with
respect to the note described in item 23 above
a. First Amendment to Pledge of Collateral Mortgage Note
between Dolphin Services and First NBC, as Agent, dated
May 1, 1997, amending item 25 above
b. Second Amendment to Pledge of Collateral Mortgage Note
between Dolphin Services and First NBC, as Agent, dated
August 21, 1998, amending item 25 above
26. Commercial Security Agreement, dated January 2, 1997, by
Dolphin Services, as grantor, in favor of First NBC, as Agent
for Banks
a. First Amendment to Commercial Security Agreement between
Dolphin Services and First NBC, as Agent, dated May 1,
1997, amending item 26 above
b. Second Amendment to Commercial Security Agreement between
Dolphin Services and First NBC, as Agent, dated August 21,
1998, amending item 26 above
27. A UCC-1 Financing Statement executed by Dolphin Services in
connection with the security agreement described in item 26
above
28. Collateral Mortgage Note by Dolphin Sales, dated January 2,
1997, in the principal sum of $3,000,000.00, bearing interest
at the rate of eighteen percent (18%) per annum, from date
until paid, and payable to the order of Bearer
29. Collateral Mortgage by Dolphin Sales, dated January 2, 1997,
in favor of First NBC, as Agent for Banks, and any and all
future holders, recorded in Terrebonne Parish, Louisiana in
MOB 1086, Entry No. 989723, which mortgage secures the note
described in item 28 above
30. Pledge of Collateral Mortgage Note, dated January 2, 1997, by
Dolphin Sales to First NBC, as Agent for Banks, with respect
to the note described in item 28 above
a. First Amendment to Pledge of Collateral Mortgage Note
between Dolphin Services, as successor-by-merger to
Dolphin Sales, and First NBC, as Agent, dated May 1, 1997,
amending item 30 above
b. Second Amendment to Pledge of Collateral Mortgage Note
between Dolphin Services, as successor-by-merger to
Dolphin Sales, and First NBC, as Agent, dated August 21,
1998, amending item 30 above
EXHIBIT M
TRACT ONE:
OWNER: Gulf Island Fabrication, Inc.
ALL OF THAT CERTAIN TRACT OR PARCEL OF LAND, together with all of the
buildings and improvements thereon, and all of the rights, ways,
privileges, servitudes, appurtenances and advantages thereunto belonging or
in anywise appertaining, situated in the Parish of Terrebonne, State of
Louisiana, in Sections 1 and 15, T18S, R17E, and according to survey of T.
Baker Smith & Son, Inc., dated September 19, 1991, said property measures
as follows, to-wit:
Commencing at the intersection of the centerline of Thompson Road
with the centerline of Grand Caillou Road (La. Hwy. 57); thence, S
81*03'50" W a distance of 4831.76 feet to the point of beginning;
Thence, S 8*56'10" E a distance of 1300.00 feet to a point;
Thence, S 8l*03'5O" W a distance of 1779.09 feet to a point;
Thence, S 8*56'10" E a distance of 650.00 feet to a point;
Thence, S 81*03'50" W a distance of 2323.21 feet to the centerline
of the Houma Navigation Canal right-of-way;
Thence, N 7*45'19" E on and along said centerline a distance of
187.31 feet to a point;
Thence, N 5*31"22" E on and along said centerline a distance of
485.97 feet to a point;
Thence, N 5*33'33" E on and along said centerline a distance of
404.43 feet to a point;
Thence, N 1*18'58" E on and along said centerline a distance of
889-50 feet to a point;
Thence, N 0*58'37" W on and along said centerline a distance of
33.43 feet to a point;
Thence, N 8l*03'50" E on and along the centerline of Thompson Road a
distance of 3662.99 feet to the point of beginning, containing
146.243 acres.
Together with all the buildings and improvements now or hereafter
situated on the aforedescribed property and appurtenances, rights, ways,
privileges, servitudes, prescriptions, natural increases, accessions and
advantages now or hereafter belonging or in anywise appertaining thereto,
including, without limitation, all component parts of the aforedescribed
property, and all component parts of any building or other construction
located on the aforedescribed property, now or hereafter forming a part
of or attached to the aforedescribed property or used in connection
therewith.
TRACT TWO:
OWNER: Gulf Island Fabrication, Inc.
ALL OF THAT CERTAIN TRACT OR PARCEL OF LAND, together with all of the
buildings and improvements located thereon and all of the rights, ways,
privileges, servitudes, appurtenances and advantages thereunto belonging
or in any way appertaining, situated in the Parish of Terrebonne, State
of Louisiana, in Sections 11, 47 and 48, T17S-Rl7E and Sections 15 and
17, T18S-Rl7E of said Parish, all as more fully shown on a plat and
survey entitled "Gulf Island Fabrication, Inc.. - Survey of A 437.014
Acre Tract Located in Sections 11, 47 and 48, T17S-Rl7E and Sections 15
and 17, T18S-Rl7E, Terrebonne Parish, Louisiana" dated September 19, 1991
prepared by T. Baker Smith & Son, Inc., and according to which plat and
survey said property measures as follows, to-wit:
Commencing at the northwest corner being the intersection of the
northerly property line and the easterly right-of-way line of Louisiana
State Highway 315, proceed N 84*23'47" E a distance of 3335.89 feet to a
point;
Thence along a curve to the right having a delta of 5*l6'27" with
chord bearing S 24*03'28" E a distance of 1046.89 feet to a point;
Thence S 19*07'32" E a distance of 469.15 feet to a point;
Thence S 15*01'40"E a distance of 1078.97 feet to a point;
Thence S 13*24'38"E a distance of 791.67 feet to a point;
Thence S 07*35'11"E a distance of 813.04 feet to a point;
Thence S 08*20'28"E a distance of 59.49 feet to a point;
Thence S 03*06'15"E a distance of 889.93 feet to a point;
Thence S 00*52'48"E a distance of 369.78 feet to a point;
Thence N 80*43'28"W a distance of 1567.06 feet to a point;
Thence N 82*32'28" W a distance of 2563.86 feet to a point;
Thence N 05*44'37" W a distance of 4445.67 feet to the point of
beginning of a 437.014 acre tract.
Together with all the buildings and improvements now or hereafter
situated on the aforedescribed property and appurtenances, rights, ways,
privileges, servitudes, prescriptions, natural increases, accessions and
advantages now or hereafter belonging or in anywise appertaining thereto,
including, without limitation, all component parts of the aforedescribed
property, and all component parts of any building or other construction
located on the aforedescribed property, now or hereafter forming a part
of or attached to the aforedescribed property or used in connection
therewith.
TRACT THREE:
OWNER: Dolphin Services, Inc. as successor to Dolphin Sales & Rentals,
Inc.
Commencing at a point S 81* 03' 50" W, a distance of 3,360.00 feet from
the intersection of the centerline of La. State Highway No. 57 with the
centerline of Thompson Road; said point being the southeast corner of the
tract being conveyed and being on the centerline of Thompson Road, and
also being the point of beginning;
Thence S 81* 03' 50" W, along the centerline of Thompson Road, a distance
of 330.00 feet to a point;
Thence N 8* 56' 10" W, a distance of 1,320.00 feet to a point in the
centerline of Munson Slip;
Thence N 81* 03' 50" E, along said centerline, a distance of 330.00 feet
to a point;
Thence S 8* 56' 10" E, a distance of 1,320.00 feet from the point of
beginning and containing an area of 10.000 acres, more or less, all as
more fully shown on a map prepared by Southern Surveyors, dated May 4,
1976, and titled "Plat of Survey Showing a Proposed Purchase from Walter
Land Company located in Section 12, T17S, R17E, and Section 1, T18S,
R17E, Terrebonne Parish, Louisiana".
Together with all the buildings and improvements now or hereafter
situated on the aforedescribed property and appurtenances, rights, ways,
privileges, servitudes, prescriptions, natural increases, accessions and
advantages now or hereafter belonging or in anywise appertaining thereto,
including, without limitation, all component parts of the aforedescribed
property, and all component parts of any building or other construction
located on the aforedescribed property, now or hereafter forming a part
of or attached to the aforedescribed property or used in connection
therewith.
TRACT FOUR:
OWNER: Dolphin Services, Inc.
A certain lot or parcel of ground, together with all buildings and
improvements thereon, located in Section 12, Township 17 South, Range 17
East, and Section 1, Township 18 South, Range 17 East, Terrebonne Parish,
Louisiana, being Lot 27 of Houma-Terrebonne Industrial Park as shown on a
plat of survey of Robert C. Reed, Registered Land Surveyor, dated March
22, 1972, revised July 11, 1973, said plat attached to document dated
February 17, 1975, and registered in COB 608, folio 670, Entry No.
482726, and said Lot 27 being more particularly described as follows, to-
wit:
Commencing at a point S 81*03'50" W, a distance of 1,150 feet from the
intersection of the centerline of Roland Road with the centerline of
Thompson Road; said point being the southeasterly corner of Lot 27 and
also being the point of beginning.
Thence S 81*03'50" W along the centerline of Thompson Road, a distance of
330.00 feet to a point on the property line between Lots 27 and 26;
Thence N 8*56'10" W along said property line, a distance of 1,320.00 feet
to a point in the centerline of Munson Slip;
Thence N 81*03'50" E, along the centerline of Munson Slip, a distance of
330.00 feet to a point on the property line between Lots 27 and 28 of
said Houma-Terrebonne Industrial Park;
Thence S 8*56'10" E, along said line between Lots 27 and 28, a distance
of 1,320.00 feet to the point of beginning, containing an area of 10.100
acres, more or less. Said Lot 27 is shown on a plat prepared by Euclid
Engineering Co., Inc. dated November 13, 1978.
Together with all the buildings and improvements now or hereafter
situated on the aforedescribed property and appurtenances, rights, ways,
privileges, servitudes, prescriptions, natural increases, accessions and
advantages now or hereafter belonging or in anywise appertaining thereto,
including, without limitation, all component parts of the aforedescribed
property, and all component parts of any building or other construction
located on the aforedescribed property, now or hereafter forming a part
of or attached to the aforedescribed property or used in connection
therewith.
SCHEDULE I
LITIGATION PENDING AGAINST BORROWER
AUGUST 21, 1998
CAUSE NO. H-94-3547, AGIP PETROLEUM, INC. VS GULF ISLAND
FABRICATION, INC. ET AL; IN THE U.S. DISTRICT COURT OF TEXAS,
HOUSTON DIVISION.
CAUSE NO. 98-049 (CIVIL ACTION) BOBBY RAY FULLER VS GULF ISLAND
FABRICATION, INC. ET AL; IN THE U.S. DISTRICT COURT, WESTERN DISTRICT
OF LOUISIANA, LAFAYETTE DIVISION.
ALL OF THE ABOVE CLAIMS ARE BEING DEFENDED BY APPLICABLE
INSURANCE POLICIES.
SCHEDULE I
LITIGATION PENDING AGAINST
DOLPHIN SERVICES, INC.
AUGUST 21, 1998
CAUSE NO. 122618, CLARA KLINK VS DOLPHIN SERVICES, INC, ET AL; IN
THE 32ND JUDICIAL DISTRICT COURT OF LOUISIANA, TERREBONNE PARISH.
CAUSE NO. 98-1092, LLYN JUNGJOHANN VS DOLPHIN SERVICES, INC. ET
AL; IN THE U.S. DISTRICT COURT, WESTERN DISTRICT OF LOUISIANA,
LAFAYETTE OPELOUSAS DIVISION.
ALL OF THE ABOVE CLAIMS ARE BEING DEFENDED BY APPLICABLE
INSURANCE POLICIES.
SCHEDULE I
LITIGATION PENDING AGAINST
SOUTHPORT, INC.
AUGUST 21, 1998
NO THIRD PARTY LITIGATION PENDING.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from consolidated
financial statements and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 3,905
<SECURITIES> 0
<RECEIVABLES> 33,047
<ALLOWANCES> 0
<INVENTORY> 1,184
<CURRENT-ASSETS> 51,247
<PP&E> 64,125
<DEPRECIATION> 22,309
<TOTAL-ASSETS> 97,467
<CURRENT-LIABILITIES> 30,125
<BONDS> 0
0
0
<COMMON> 4,162
<OTHER-SE> 61,432
<TOTAL-LIABILITY-AND-EQUITY> 97,467
<SALES> 149,421
<TOTAL-REVENUES> 149,421
<CGS> 121,513
<TOTAL-COSTS> 126,045
<OTHER-EXPENSES> (183)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 76
<INCOME-PRETAX> 23,483
<INCOME-TAX> 8,787
<INCOME-CONTINUING> 14,696
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 14,696
<EPS-PRIMARY> 1.26
<EPS-DILUTED> 1.25
</TABLE>
NEWS RELEASE Exhibit 99.1
For further information contact:
Kerry J. Chauvin Joseph "Duke" Gallagher
Chief Executive Officer Chief Financial Officer
(504) 872-2100 (504) 872-2100
FOR IMMEDIATE RELEASE
THURSDAY, OCTOBER 22, 1998
GULF ISLAND FABRICATION, INC.
REPORTS THIRD QUARTER AND YEAR-TO-DATE 1998 EARNINGS
Houma, LA - Gulf Island Fabrication, Inc. (NASDAQ: GIFI) today reported
pro forma net income of $5.3 million ($.45 diluted EPS) on revenue of $51.9
million for its third quarter ended September 30, 1998, compared to pro forma
net income of $3.7 million ($.32 diluted EPS) on revenue of $36.3 million for
the third quarter of 1997. Pro forma net income for the first nine months of
1998 was $14.7 million ($1.25 diluted EPS) on revenue of $149.4 million,
compared to pro forma net income of $9.2 million ($.89 diluted EPS) on revenue
of $101.6 million for the first nine months of 1997.
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 all the periods
presented. Pro forma net income excludes the non-recurring charge of $1.1
million to record the cumulative deferred income tax provision upon the
election on April 4, 1997 to convert from S Corporation status to C Corporation
status. On October 6, 1997 the Company's Board of Directors authorized a two-
for-one stock split effected in the form of a stock dividend that was
distributed on October 28, 1997 to shareholders of record on October 21, 1997.
All share and per share data presented reflects the stock split. At September
30, 1998, the company had a revenue backlog of $53.3 million and a labor
backlog of approximately 1.0 million manhours remaining to work.
"We had a great third quarter and are quite pleased with our results over
the first nine months of the year," said Kerry Chauvin, Gulf Island's Chief
Executive Officer. "Despite our Company's excellent performance, however, the
downturn in our industry brought on by continued low oil prices and a downturn
in natural gas prices as well, will impact our ability to maintain these high
levels of performance beyond year end. The dollar value of projects available
in the market is significantly below last year's levels and our backlog is
being similarly eroded. Competition for available projects has become more
intense and future margins will likely be diminished. Cost reduction measures
will be undertaken as appropriate to meet these conditions. In the longer
term, demand for our services will largely depend upon prices for oil and gas,
which are difficult to predict. At some point however, it is expected that
these should recover as supplies are reduced and our customers are forced to
replace them."
Gulf Island Fabrication, Inc., based in Houma, Louisiana, 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. The Company also offers offshore interconnect pipe hook-up, inshore
marine construction, and steel warehousing and sales. With the acquisition of
Southport, Inc., effective January 1, 1998, the Company also provides the
fabrication of living quarters for offshore platforms for the oil and gas
industry.
Information in this press release concerning future industry conditions
and future company operations and performance are forward-looking statements
based on current expectations and assumptions. These statements involve risks
and uncertainties that include, among others, the prices of crude oil and
natural gas, the timing of new projects and the Company's ability to obtain
them, and competitive factors in the industry. Changes in these factors could
result in changes in the Company's performance and could cause the actual
results to differ materially from those expressed in the forward-looking
statements.
GULF ISLAND FABRICATION, INC.
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
(in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
<S> <C> <C> <C> <C>
Revenue $51,866 $36,311 $149,421 $101,556
Cost of revenue 42,036 29,325 121,513 83,282
------- ------- -------- --------
Gross profit 9,830 6,986 27,908 18,274
General and administrative expenses 1,458 1,115 4,532 3,262
------- ------- -------- --------
Operating income 8,372 5,871 23,376 15,012
Other expense (income):
Interest expense 19 16 76 324
Interest income (94) (77) (183) (112)
------- ------- -------- --------
(75) (61) (107) 212
------- ------- -------- --------
Income before income taxes 8,447 5,932 23,483 14,800
Income taxes 3,135 2,234 8,787 4,210
Cumulative deferred tax provision(1) 0 0 0 1,144
------- ------- -------- --------
Net income $ 5,312 $ 3,698 $ 14,696 $ 9,446
======= ======= ======== ========
Pro forma data: (2)
Income before income taxes $ 8,447 $ 5,932 $ 23,483 $ 14,800
Income taxes 3,135 2,234 8,787 4,210
Pro forma income taxes
related to operations as S Corporation 0 0 0 1,379
------- ------- -------- --------
Pro forma net income $ 5,312 $ 3,698 $ 14,696 $ 9,211
======= ======= ======== ========
Pro forma per share data:
Pro forma basic earnings per share (3) $ 0.46 $ 0.32 $ 1.26 $ 0.89
======= ======= ======== ========
Pro forma diluted earnings per share (3)(4) $ 0.45 $ 0.32 $ 1.25 $ 0.89
======= ======= ======== ========
Weighted-average shares (3) 11,638 11,600 11,627 10,310
======= ======= ======== ========
Adjusted weighted-average shares (3) (4) 11,697 11,689 11,711 10,353
======= ======= ======== ========
Depreciation and amortization
included in expense above $ 1,060 $ 765 $ 3,090 $ 2,104
======= ======= ======== ========
</TABLE>
(1) Cumulative deferred tax provision charged upon election on April 4, 1997
to convert from an S Corporation status to a C Corporation Status.
(2) Pro forma information gives effect to federal and state income taxes as
if the Company had been a C Corporation for tax purposes during all
periods presented.
(3) Includes the initial public offering completed on April 9, 1997 and
retroactively restates the two-for-one stock split effective October 28,
1997.
(4) The calculation of diluted earnings per share assumes that all stock
options are exercised and that the assumed proceeds are used to purchase
shares at the average market price for the period.
