EXHIBIT 10.2
FOURTH AMENDMENT TO
EIGHTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO EIGHTH AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "FOURTH AMENDMENT"), dated effective as of the 30th day of
September, 2002, is entered into by and among GULF ISLAND FABRICATION, INC., a
Louisiana corporation ("BORROWER"), GULF ISLAND, L.L.C., a Louisiana limited
liability company ("GULF ISLAND SUBSIDIARY"), DOLPHIN SERVICES, INC., a
Louisiana corporation ("DOLPHIN"), SOUTHPORT, INC., a Louisiana corporation
("SOUTHPORT"), GULF ISLAND MINDOC COMPANY, L.L.C. (formerly Vanguard Ocean
Services, L.L.C.), a Louisiana limited liability company ("MINDOC"), GIF
FINANCE, INC., a Delaware corporation ("GIF FINANCE" and together with Gulf
Island Subsidiary, Dolphin, Southport, and MinDOC, each an "EXISTING SUBSIDIARY"
and, collectively, the "EXISTING SUBSIDIARIES"), WHITNEY NATIONAL BANK, a
national banking association ("WHITNEY"), BANK ONE, NA, a national banking
association, in its individual capacity ("BANK ONE") (each of Whitney and Bank
One individually, a "BANK" and collectively, "BANKS"), and BANK ONE, NA, a
national banking association, in its capacity as agent for Banks as set forth
hereinafter ("AGENT").
RECITALS:
A. Borrower, the Existing Subsidiaries other than GIF Finance, Whitney,
and Bank One, in its capacity as a Bank and as Agent, entered into that certain
Eighth Amended and Restated Revolving Credit Agreement, dated effective as of
January 1, 2000 (the "RESTATED CREDIT AGREEMENT");
B. Borrower, the Existing Subsidiaries other than GIF Finance, Banks,
and Agent entered into that certain First Amendment to the Restated Credit
Agreement, dated effective as of September 21, 2000, Borrower, the Existing
Subsidiaries, Bank, and Agent entered into that certain Second Amendment to the
Restated Credit Agreement, dated effective as of October 24, 2001, and that
certain Third Amendment to the Restated Credit Agreement, dated effective as
November 19, 2001 (collectively, with the Restated Credit Agreement, the
"AMENDED CREDIT AGREEMENT");
C. Borrower, the Existing Subsidiaries, Banks, and Agent desire to
extend the Termination Date of the Amended 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:
ARTICLE I
AMENDMENTS
1. Section 5.4. Section 5.4 of the Amended Credit Agreement is hereby
amended by replacing the date "December 31, 2000" in each instance where such
date appears in Section 5.4 with the defined term "Year-End Financial Statement
Date." Section 5.4 is further amended by deleting the date "June 30, 2001" and
replacing such date with the defined term "Mid-Year Financial Statement Date."
2. Section 11.1. Section 11.1 of the Amended Credit Agreement is hereby
amended to include the following additional definition:
"Year-End Financial Statement Date" means December 31, 2001.
"Mid-Year Financial Statement Date" means June 30, 2002.
Section 11.1 of the Amended Credit Agreement is hereby further amended to
substitute the following definition for the former definition of "Termination
Date":
"Termination Date" means December 31, 2004.
ARTICLE II
SPECIAL REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THIS FOURTH AMENDMENT
In order to induce Banks and Agent to enter into this Fourth Amendment,
Borrower and the Existing Subsidiaries represent and warrant to Banks that:
1. Borrower Authorization. Borrower is duly authorized to execute,
deliver and perform its obligations under this Fourth Amendment and is and will
continue to be duly authorized to borrow monies and apply for Letters of Credit
under and to perform its obligations under the Amended Credit Agreement, as
amended by this Fourth Amendment and as it may be further amended from time to
time.
2. Enforceability Against Borrower. This Fourth Amendment shall, upon
execution and delivery, constitute the legal, valid and binding obligation of
Borrower, enforceable in accordance with its terms.
3. Existing Subsidiary Authorization. Each Existing Subsidiary is duly
authorized to execute, deliver and perform its obligations under this Fourth
Amendment and is and will continue to be duly authorized to apply for Letters of
Credit and to agree to the related reimbursement obligations under the Amended
Credit Agreement, as amended by this Fourth Amendment and as it may be further
amended from time to time.
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4. Enforceability Against Existing Subsidiaries. This Fourth Amendment
shall, upon execution and delivery, constitute the legal, valid and binding
obligation of each Existing Subsidiary enforceable in accordance with its terms.
ARTICLE III
CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS
FOURTH AMENDMENT
This Fourth Amendment shall become effective as of the date first above
written when and only when (i) Agent shall have received at the offices of
Agent, a counterpart of this Fourth Amendment executed and delivered by
Borrower, the Existing Subsidiaries and Banks and (ii) Agent shall have
additionally received all of the following documents, each document (unless
otherwise indicated) being dated the date hereof, duly authorized, executed and
delivered, and in form and substance satisfactory to Agent and each Bank:
1. Borrower's Resolutions. Copies, duly certified by the Secretary or
Assistant Secretary of Borrower, of the resolutions of Borrower's Board of
Directors authorizing the borrowings under the Amended Credit Agreement, as
amended hereby, and the execution and delivery of this Fourth Amendment;
2. Existing Subsidiaries' Resolutions. Copies, duly certified by the
Secretary or Assistant Secretary of each Existing Subsidiary, authorizing the
borrowings under the Amended Credit Agreement, as amended hereby, and the
execution and delivery of this Fourth Amendment and, in the case of GIF Finance,
the Subordination Agreement and its Guaranty; and
3. Notes. Borrower's duly executed promissory note payable to the order
of Banks, in the form attached as Exhibit "C" and "D" hereto, with appropriate
insertion.
4. No Default Certificate. Borrower's duly executed no-default and
warranty certificate.
ARTICLE IV
MISCELLANEOUS
1. Definitions. All terms used herein with initial capital letters and
not otherwise defined herein shall have the meanings ascribed to such terms in
the Amended Credit Agreement.
2. Substitution of Exhibits and Schedules. Exhibits "C" and "D" of the
Amended Credit Agreement are hereby deleted, and Exhibits "C" and "D" attached
hereto are hereby substituted in place thereof. Schedule 1 of the Amended Credit
Agreement is hereby deleted, and Schedule 1 attached hereto is hereby
substituted in place thereof.
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3. Ratification of Notes and Liens. Borrower does hereby ratify,
reaffirm and acknowledge its obligations under the Notes, and Gulf Island
Subsidiary and Dolphin Services do hereby further ratify, reaffirm and
acknowledge their respective mortgages, pledges and/or assignments of, and/or
grants of a security interest in, all Collateral heretofore provided by Gulf
Island Subsidiary and Dolphin Services as security for the Notes and the other
Obligations under the Amended Credit Agreement. Gulf Island Subsidiary and
Dolphin Services do hereby further ratify, confirm and acknowledge to Agent and
Banks that: (a) the mortgages, pledges and/or assignments of, and/or grants of a
security interest in, all such Collateral is and shall remain in full force and
effect; (b) the Collateral Documents to which either of Gulf Island Subsidiary
or Dolphin Services is a party are and shall continue to be valid, binding and
enforceable obligations of Gulf Island Subsidiary and Dolphin Services
respectively; and (c) the Collateral Documents and the Collateral shall continue
to secure, with the original ranks and priority, the Notes and the other
Obligations of Borrower.
4. Ratification of Existing Subsidiaries Continuing Guaranty. The
Existing Subsidiaries do hereby ratify, reaffirm and acknowledge their
respective obligations under the January 1, 2000 Continuing Subsidiary Guaranty
by each of the Existing Subsidiaries other than GIF Finance and the October 24,
2001 Continuing Subsidiary Guaranty by GIF Finance (collectively, the
"GUARANTIES"). The Existing Subsidiaries do hereby further ratify, reaffirm and
acknowledge to Agents and Banks that: (a) the Guaranties are and shall remain in
full force and effect; (b) the Guaranties to which each of the Existing
Subsidiaries are a party is and shall continue to be valid, binding and an
enforceable obligation of the Existing Subsidiaries.
5. No Other Changes. The Amended Credit Agreement as hereby amended is
hereby ratified and confirmed in all respects. Any reference to the Amended
Credit Agreement in any Loan Document shall be deemed to refer to the Amended
Credit Agreement as amended hereby. The execution, delivery and effectiveness of
this Fourth Amendment shall not, except as expressly provided herein, operate as
a waiver of any right, power or remedy of Banks under the Amended Credit
Agreement or any other Loan Document. Except as amended by this Fourth
Amendment, the Amended Credit Agreement shall remain in full force and effect.
Nothing contained herein or in any other documents contemplated hereby shall be
considered a novation or discharge of the debt of Borrower to Banks under the
Amended Credit Agreement.
6. Counterparts. This Fourth Amendment may be 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 an original, but all of which counterparts shall constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment 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 & CEO
BANKS:
BANK ONE, NA
By: /s/ J. Charles Freel, Jr.
-----------------------------------------
J. Charles Freel, Jr.,
Director, Capital Markets
WHITNEY NATIONAL BANK
By: /s/ Harry C. Stahel
-----------------------------------------
Harry C. Stahel,
Senior Vice President
AGENT:
BANK ONE, NA
By: /s/ J. Charles Freel, Jr.
-----------------------------------------
J. Charles Freel, Jr.,
Director, Capital Markets
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EXISTING SUBSIDIARIES:
GULF ISLAND, L.L.C.
By: /s/ Kirk J. Meche
-----------------------------------------
Kirk J. Meche, President & CEO
DOLPHIN SERVICES, INC.
By: /s/ William Fromenthal
-----------------------------------------
William Fromenthal, President & CEO
SOUTHPORT, INC.
By: /s/ Stephen Becnel
-----------------------------------------
Stephen Becnel, President & CEO
GULF ISLAND MINDOC COMPANY, L.L.C.
By: /s/ Kerry J. Chauvin
-----------------------------------------
Kerry J. Chauvin, Manager
GIF FINANCE, INC.
By: /s/ Joseph P. Gallagher, III
-----------------------------------------
Joseph P. Gallagher, III, President
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COMMERCIAL PROMISSORY NOTE
(REVOLVING)
$10,000,000.00 New Orleans, Louisiana
September 30, 2002
FOR VALUE RECEIVED, the undersigned ("BORROWER", whether one or more),
in solido, promises to pay to the order of BANK ONE, NA ("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 Eighth
Amended and Restated Revolving Credit Agreement, dated as of January 1, 2000, as
amended by that certain First Amendment thereto, dated as of September 21, 2000,
that certain Second Amendment thereto dated as of October 24, 2001, that certain
Third Amendment thereto dated as of November 19, 2001, and by that certain
Fourth Amendment thereto dated as of the date hereof, by and among Borrower, the
Existing Subsidiaries (as defined therein), 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, 2004, AND
INTEREST THEREON SHALL BE PAYABLE ON THE LAST DAY OF SEPTEMBER, 2002, 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 the date hereof, 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 October 24, 2001, in the
amount of
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$10,000,000.00, and (b) that certain promissory note of Borrower payable to the
order of Whitney, dated October 24, 2001, in the amount of $10,000,000.00 (both
of the foregoing promissory notes being collectively referred to as the
"ORIGINAL NOTES").
The indebtedness evidenced by this note and the Whitney Note is a
continuation of and an increase in the indebtedness evidenced by the Original
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
Original Notes or any collateral securing same; (b) as payment of any amount of
principal or interest on the Original 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.
BORROWER:
GULF ISLAND FABRICATION, INC.
BY: /s/ KERRY J. CHAUVIN
-----------------------------------------
KERRY J. CHAUVIN
CHAIRMAN & CEO
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COMMERCIAL PROMISSORY NOTE
(REVOLVING)
$10,000,000.00 New Orleans, Louisiana
September 30, 2002
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 Eighth
Amended and Restated Revolving Credit Agreement, dated as of January 1, 2000, as
amended by that certain First Amendment thereto dated as of September 21, 2000,
that certain Second Amendment thereto dated as of October 24, 2001, that certain
Third Amendment thereto dated as of November 19, 2001, and by that certain
Fourth Amendment thereto dated as of the date hereof, by and among Borrower, the
Existing Subsidiaries (as defined therein), Bank and Bank One, NA ("BANK ONE"),
in its individual capacity and as agent for Bank and Bank One (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 Bank One, as Bank's agent.
SINGLE PAYMENT NOTE/SINGLE PRINCIPAL PAYMENT, PERIODIC INTEREST
INSTALLMENTS. PRINCIPAL SHALL BE PAYABLE IN FULL ON DECEMBER 31, 2004, AND
INTEREST THEREON SHALL BE PAYABLE ON THE LAST DAY OF SEPTEMBER, 2002, 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 the date hereof, in the principal sum of $10,000,000.00,
executed by Borrower, payable to the order of Bank One, bearing interest at the
per annum rate set forth herein (the "BANK ONE 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 October 24, 2001, in the
amount of $10,000,000.00, and (b) that certain
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promissory note of Borrower payable to the order of Bank One, October 24, 2001,
in the amount of $10,000,000.00 (both of the foregoing promissory notes being
collectively referred to as the "ORIGINAL NOTES").
The indebtedness evidenced by this note and the Bank One Note is a
continuation of the indebtedness evidenced by the Original 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 Original
Notes or any collateral securing same; (b) as payment of any amount of principal
or interest on the Original 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.
BORROWER:
GULF ISLAND FABRICATION, INC.
BY: /s/ KERRY J. CHAUVIN
-----------------------------------------
KERRY J. CHAUVIN
CHAIRMAN & CEO
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