FIFTH AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
Among
GULF ISLAND FABRICATION, INC.,
As Borrower,
FIRST NATIONAL BANK OF COMMERCE
AND
WHITNEY NATIONAL BANK,
As Banks,
AND
FIRST NATIONAL BANK OF COMMERCE,
As Agent
Dated effective as of October 24, 1996
TABLE OF CONTENTS
Section 1. Commitment of Banks to Renew Indebtedness..............5
1.1 Term Credit Facility................................. 6
1.2 Revolving Credit Facility............................ 7
1.3 Borrowing Procedure Under the Credit Facilities...... 8
1.4 Terms and Conditions Governing Letters of Credit..... 8
Section 2. Notes Evidencing Borrowings............................9
2.1 Term Notes........................................... 9
2.2 Revolving Notes..................................... 10
2.3 No Novation......................................... 10
Section 3. Interest and Fees.....................................10
3.1 Interest -- Term Credit Facility.................... 10
3.2 Interest -- Revolving Credit Facility............... 11
3.3 Default Rate........................................ 11
3.4 Prime Rate ..........................................12
3.5 Commitment Fee...................................... 12
3.6 Method of Calculating Interest and Fees .............12
3.7 Interest Rate Options............................... 12
Section 4. Payments, Prepayments, and Reduction or Termination
of the Credit Facility..............................17
4.1 Method of Payment................................... 17
4.2 Sharing of Payments................................. 18
4.3 Payments Without Deduction ..........................19
4.4 Prepayments -- Term Credit Facility................. 19
4.5 Borrowing Base for Revolving Credit Facility; Mandatory
Prepayments..........................................19
4.6 Reduction of Credit................................. 20
Section 5. Collateral...........................................21
5.1 Security for the Credit Facility 21
Section 6. Representations and Warranties of Borrower...........26
6.1 Corporate Existence .................................26
6.2 Authorization; Validity .............................26
6.3 No Conflicts ........................................26
6.4 Financial Statements ................................27
6.5 Litigation.......................................... 27
6.6 Liens ...............................................27
6.7 Subsidiaries........................................ 27
6.8 Purpose .............................................27
6.9 Use of Proceeds; Margin Securities ..................28
6.10 Compliance with ERISA............................... 28
6.11 Consents ............................................28
6.12 Tax Returns .........................................28
6.13 Ownership of Borrower............................... 29
6.14 Operation of Business............................... 29
6.15 Rights in Properties; Liens......................... 29
6.16 Debt ................................................29
6.17 Disclosure ..........................................29
6.18 Registered Office; Principal Place of Business;
Location of Collateral...............................29
6.19 Investment Company Act.............................. 30
6.20 Other Agreements.................................... 30
6.21 Compliance with Law .................................30
6.22 Corporate Name...................................... 31
6.23 Collateral ..........................................32
6.24 Taxpayer I.D. Number ................................32
Section 7. Borrower's Covenants..................................32
7.1 Financial Statements................................ 32
7.2 Access.............................................. 33
7.3 Insurance ...........................................33
7.4 Repair.............................................. 33
7.5 Taxes ...............................................34
7.6 Corporate Existence................................. 34
7.7 Merger.............................................. 34
7.8 Compliance ..........................................34
7.9 Use of Proceeds .....................................35
7.10 Financial Covenants .................................36
7.11 Liens ...............................................36
7.12 Debt ................................................37
7.13 Redemptions, etc. ...................................37
7.14 Capital Expenditures................................ 38
7.15 Dividends ...........................................38
7.16 Shareholder or Employee Loans .......................38
7.17 Change in Business.................................. 39
7.18 Accounts Receivable................................. 39
7.19 Compliance with Agreements ..........................39
7.20 Further Assurances.................................. 39
7.21 Disposition of Assets ...............................39
7.22 Change Tax I.D. Number.............................. 39
7.23 Indemnity ...........................................39
7.24 GIFI Property .......................................40
Section 8. Conditions Precedent to Extensions of Credit..........40
8.1 Borrower's Resolutions.............................. 41
8.2 Notes............................................... 41
8.3 Incumbency ..........................................41
8.4 Certification .......................................41
8.5 GIF Collateral Mortgage .............................41
8.6 GIF Collateral Chattel Mortgages ....................41
8.7 Lease Assignment ....................................41
8.8 GIFI Collateral Chattel Mortgage ....................41
8.9 Real Property Collateral Mortgage ...................41
8.10 Security Agreement.................................. 42
8.11 Financing Statement .................................42
8.12 Other Documents .....................................42
8.13 Opinion .............................................42
8.14 Real Property Title Insurance .......................42
Section 9. Additional Conditions Precedent to Advances and/or
Letters of Credit....................................42
9.1 Default............................................. 43
9.2 Warranties.......................................... 43
Section 10. Events of Default....................................43
10.1 Payment............................................. 43
10.2 Other Indebtedness ..................................43
10.3 Other Default .......................................44
10.4 Insolvency.......................................... 44
10.5 ERISA ...............................................44
10.6 Agreements.......................................... 45
10.7 Representation or Warranty.......................... 45
10.8 Change in Ownership of Borrower .....................45
Section 11. Agent................................................46
11.1 Authorization and Action............................ 46
11.2 Agent's Reliance, Etc............................... 47
11.3 First NBC and Affiliates ............................48
11.4 Bank Credit Decision................................ 48
11.5 Indemnification .....................................49
11.6 Successor Agent .....................................49
11.7 Benefits of Section .................................50
11.8 Change in Specified Percentage ......................50
Section 12. General..............................................50
12.1 Definitions .........................................50
12.2 Financial Terms..................................... 59
12.3 Delay ...............................................60
12.4 Notices .............................................60
12.5 Expenses ............................................61
12.6 Severability........................................ 62
12.7 Counterparts........................................ 62
12.8 Law .................................................62
12.9 Successors ..........................................62
12.10 Amendments .........................................63
12.11 Entire Agreement................................... 63
12.12 Conflicts ..........................................63
FIFTH AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
THIS FIFTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT (the "Agreement") dated effective as of the 24th
day of October, 1996, by and among GULF ISLAND FABRICATION, INC.,
a Louisiana corporation ("Borrower") (formerly known as GIFI,
Inc. ("GIFI"), successor by merger to Gulf Island Fabrication,
Inc., a Louisiana corporation ("GIF")), 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, GIF and First NBC entered into that certain
Revolving Credit and Term Loan Agreement dated December 17, 1986
(the "Original Loan Agreement");
WHEREAS, GIF and First NBC entered into that certain First
Amendment to Revolving Credit and Term Loan Agreement dated as of
November 3, 1987 (the "First Loan Agreement Amendment"), whereby
Borrower and First NBC amended certain terms and conditions of
the Original Loan Agreement;
WHEREAS, GIF and First NBC entered into that certain Second
Amendment to Revolving Credit and Term Loan Agreement, dated
effective as of December 21, 1987 (the "Second Loan Agreement
Amendment"), whereby GIF and First NBC amended certain terms and
conditions of the Original Loan Agreement, as amended by the
First Loan Agreement Amendment;
WHEREAS, GIF and First NBC entered into that certain Third
Amendment to Revolving Credit and Term Loan Agreement dated
effective as of September 13, 1988 (the "Third Loan Agreement
Amendment"), whereby GIF and First NBC amended certain terms and
conditions of the Original Loan Agreement, as amended by the
First Loan Agreement Amendment and the Second Loan Agreement
Amendment (the Original Loan Agreement, as amended by the First
Loan Agreement Amendment, the Second Loan Agreement Amendment and
the Third Loan Agreement Amendment being hereinafter referred to
as the "Loan Agreement");
WHEREAS, GIF and First NBC entered into that certain First
Amended and Restated Revolving Credit and Term Loan Agreement
dated July 27, 1989, whereby GIF and First NBC further amended
certain terms and conditions of the Loan Agreement and restated
the Loan Agreement in its entirety (the "First Amended and
Restated Loan Agreement");
WHEREAS, GIFI and GIF entered into that certain Merger
Agreement dated effective as of March 1, 1990 (the "Merger
Agreement"), whereby GIF was merged into GIFI, and, contempora-
neously therewith, GIFI changed its corporate name to Gulf Island
Fabrication, Inc. (the "Merger");
WHEREAS, Borrower and First NBC entered into that certain
Second Amended and Restated Revolving Credit and Term Loan
Agreement dated effective as of March 1, 1990, in order to
reflect the Merger, to set forth further changes in their
understanding concerning certain terms and conditions of the loan
made pursuant to the First Amended and Restated Loan Agreement
and to restate same in its entirety (the "Second Amended and
Restated Loan Agreement");
WHEREAS, pursuant to the terms of that certain Partial
Assignment of Notes and Security Therefor dated October 29, 1991,
(as amended or modified from time to time, the "Assignment"),
First NBC assigned to Whitney an undivided one-half(1/2) interest
in and to the Second Amended and Restated Loan Agreement, all
notes executed by Borrower payable to the order of First NBC
pursuant to the Second Amended and Restated Loan Agreement (the
"Second Loan Agreement Notes") and all security for the repayment
of the Second Loan Agreement Notes, as described in the Second
Amended and Restated Loan Agreement (the "Second Loan Agreement
Security");
WHEREAS, as a result of the Assignment, each Bank now holds
an undivided one-half (1/2) interest in and to the Second Amended
and Restated Loan Agreement and all rights and obligations
described therein or emanating therefrom, including, without
limitation, the Second Loan Agreement Notes and the Second Loan
Agreement Security;
WHEREAS, Borrower, Banks and Agent entered into that certain
Third Amended and Restated Revolving Credit and Term Loan
Agreement, dated effective as of October 29, 1991 (the "Third
Amended and Restated Loan Agreement"), whereby Borrower, Banks
and Agent amended and restated the Second Amended and Restated
Loan Agreement in order (a) to more fully reflect the agreement
among the parties regarding the continuation of the loans made
pursuant thereto, (b) to extend, modify and renew the obligations
evidenced by the Second Amended and Restated Loan Agreement and
the Second Loan Agreement Notes, (c) to reaffirm the existence
and priority of the Second Loan Agreement Security and (d) to
provide new security described therein (the "Third Loan Agreement
Security");
WHEREAS, Borrower, Banks and Agent entered into that certain
First Amendment to Third Amended and Restated Revolving Credit
and Term Loan Agreement dated effective as of July 20, 1992 (the
"Third Amended and Restated Loan Agreement Amendment"), whereby
Borrower and First NBC amended certain terms and conditions of
the Third Amended and Restated Loan Agreement (the Third Amended
and Restated Loan Agreement, as amended by the Third Amended and
Restated Loan Agreement Amendment, being hereinafter referred to
as the "Third Loan Agreement");
WHEREAS, Borrower, Banks and Agent entered into that certain
Fourth Amended and Restated Revolving Credit Agreement, dated
effective as of February 25, 1993 (the "Fourth Amended and
Restated Loan Agreement"), whereby Borrower, Banks and Agent
amended and restated the Third Amended and Restated Loan
Agreement in order to more fully reflect the agreement among the
parties regarding the continuation of the loans made pursuant
thereto;
WHEREAS, Borrower, Banks and Agent entered into that certain
First Amendment to Fourth Amended and Restated Revolving Credit
Agreement, dated effective as of February 25, 1993 (the "First
Fourth Amended and Restated Loan Agreement Amendment"), whereby
Borrower, Banks and Agent amended certain terms and conditions of
the Fourth Amended and Restated Loan Agreement;
WHEREAS, Borrower, Banks and Agent entered into that certain
Second Amendment to Fourth Amended and Restated Revolving Credit
Agreement, dated effective as of April 20, 1994 (the "Second
Fourth Amended and Restated Loan Agreement Amendment"), whereby
Borrower, Banks and Agent further amended certain terms and
conditions of the Fourth Amended and Restated Loan Agreement;
WHEREAS, Borrower, Banks and Agent entered into that certain
Third Amendment to Fourth Amended and Restated Revolving Credit
Agreement, dated effective as of June 26, 1995 (the "Third Fourth
Amended and Restated Loan Agreement Amendment"), whereby
Borrower, Banks and Agent further amended certain terms and
conditions of the Fourth Amended and Restated Loan Agreement;
WHEREAS, Borrower, Banks and Agent entered into that certain
Fourth Amendment to Fourth Amended and Restated Revolving Credit
Agreement, dated effective as of May 1, 1996 (the "Fourth Fourth
Amended and Restated Loan Agreement Amendment"), whereby
Borrower, Banks and Agent further amended certain terms and
conditions of the Fourth Amended and Restated Loan Agreement (the
Fourth Amended and Restated Loan Agreement, as amended by the
First Fourth Amended and Restated Loan Agreement Amendment, the
Second Fourth Amended and Restated Loan Agreement Amendment, the
Third Fourth Amended and Restated Loan Agreement Amendment and
the Fourth Fourth Amended and Restated Loan Agreement Amendment
being hereinafter referred to as the "Fourth Loan Agreement");
WHEREAS, Borrower, Banks and Agent desire to amend and
restate the Fourth Loan Agreement in order to more fully reflect
the agreement among the parties regarding the continuation of the
loans made pursuant thereto; and
WHEREAS, the execution of this Agreement does not constitute
a novation, prepayment or payment of the loans described in the
Fourth Loan Agreement, but is an extension, modification and
renewal thereof;
NOW, THEREFORE, for and in consideration of the mutual cove-
nants, agreements and undertakings herein contained, Banks and
Borrower hereby agree as follows:
Section 1. Commitment of Banks to Renew Indebtedness.
Subject to the terms and conditions hereof, each Bank severally
agrees that Borrower's obligations as evidenced by the Fourth
Loan Agreement and the Prior Notes shall be renewed, extended,
modified and restated in their entirety on the terms and
conditions set forth herein. To the extent there is any conflict
between the Fourth Loan 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
silent on any matter or provision contained in the Fourth Loan
Agreement or the Prior Notes, such matter or provision of the
Fourth Loan Agreement or the Prior Notes shall be deemed to be
revoked. Borrower and Banks acknowledge and agree that (i) the
renewal, extension, modification and restatement of the Loans
under the terms and conditions set forth herein do not constitute
a payment, prepayment or novation of the loans evidenced by the
Fourth Loan Agreement and the Prior Notes and (ii) the Loans
continue to be secured by the Existing Security with the original
rank and priority thereof, as well as the other Collateral and
Collateral Documents described herein or hereafter granted or
executed, as appropriate. Subject to the terms and conditions
contained herein, the maximum principal amount of the Loans
evidenced by this Agreement and the Notes is TWENTY-TWO MILLION
AND NO/100 DOLLARS ($22,000,000.00).
1.1 Term Credit Facility. Banks shall make available to
Borrower a non-revolving line of credit in the maximum aggregate
principal amount of TEN MILLION AND NO/100 DOLLARS
($10,000,000.00) (the "Non-Revolving Line of Credit"), which Non-
Revolving Line of Credit may be drawn upon by Borrower on any
Business Day of Banks during the period from the date hereof
until and including March 31, 1997, 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 actual fundings to Borrower by Banks in
such amounts as Borrower may from time to time request (each such
funding being hereinafter referred to individually as a "Non-
Revolving Advance" and collectively as the "Non-Revolving
Advances"), so long as the aggregate principal amount of all
outstanding Non-Revolving Advances at any one time does not
exceed the Non-Revolving Commitment. On April 1, 1997, all of
Banks' obligations to make Non-Revolving Advances on the Non-
Revolving Line of Credit shall cease, and shall automatically,
without the necessity of any further act on the part of Banks,
Agent or Borrower, convert to a term loan in a principal amount
equal to the aggregate amount of all Non-Revolving Advances made
by Banks to Borrower during the period from the date hereof until
and including March 31, 1997. All Non-Revolving Advances repaid
on the Non-Revolving Line of Credit shall not be reborrowed but
shall reduce the Non-Revolving Commitment on a dollar-for-dollar
basis. The credit facility described in this Section 1.1 is
hereinafter referred to as the "Term Credit Facility".
1.2 Revolving Credit Facility. Banks shall make
available to Borrower a revolving line of credit (the "Revolving
Credit Facility"; each of the Term Credit Facility and the
Revolving Credit Facility being hereinafter sometimes referred to
individually as a "Credit Facility" and collectively as the
"Credit Facilities"), 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,
1998, or such earlier date as may be fixed by Borrower on at
least one (1) Business Day's telephonic notice to Agent, to be
confirmed in writing by Borrower, in the form of the issuance by
Banks on behalf of and for the account of Borrower of irrevocable
stand-by letters of credit in the form provided for by, and
containing such terms and conditions as are acceptable to, Banks
and in such amounts as Borrower may from time to time request
(each such letter of credit, as well as any letters of credit
issued pursuant to and in accordance with the Fourth Loan
Agreement which remain outstanding on the date hereof, being
hereinafter referred to individually as a "Letter of Credit" and
collectively as the "Letters of Credit") or in the form of actual
fundings to Borrower by Banks in such amounts as Borrower may
from time to time request (each such funding, as well as the
aggregate amount of the Prior Notes previously funded by Banks
and outstanding on the date hereof, being hereinafter referred to
individually as a "Revolving Advance" and collectively as the
"Revolving 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 Revolving Advances
outstanding at any one time does not exceed the Revolving
Commitment then in effect. The Revolving Commitment available to
Borrower from time to time under the Revolving Credit Facility
shall be reduced by the aggregate of the face amount of any
outstanding Letters of Credit and of all unpaid Revolving
Advances made by Banks to Borrower pursuant to this Agreement and
shall constitute the "Unused Commitment". Any draws made under
the Letters of Credit by the beneficiaries thereof shall
constitute Revolving Advances as defined in this Agreement. The
Unused Commitment available under the Revolving Credit Facility
shall be restored but simultaneously reduced by the amount of any
Revolving Advances which are made to Borrower to reimburse Banks
for draws under the Letters of Credit.
1.3 Borrowing Procedure Under the Credit Facilities.
Agent shall receive at least one (1) Business Day's prior tele-
phonic notice from Borrower (to be confirmed in writing by
Borrower) of each proposed Letter of Credit and of each Revolving
Advance to be issued under the Revolving Credit Facility, and of
each Non-Revolving Advance to be issued under the Term Credit
Facility. If all conditions precedent to the issuance of any
such Letter of Credit, any such Revolving Advance or any such
Non-Revolving 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, Revolving Advance
or Non-Revolving Advance available to Borrower at Agent's office
at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, and each
Letter of Credit, Revolving Advance and Non-Revolving Advance
shall be shared equally by Banks.
1.4 Terms and Conditions Governing Letters of Credit.
The terms and conditions governing the issuance of Letters of
Credit by Banks on behalf of and for the account of Borrower
shall be provided for by Agent in its standard form of
Application for Stand-By Letter of Credit, a copy of which is
attached hereto as Exhibit "A", with appropriate insertions and
such additional terms and conditions governing the issuance of
specific Letters of Credit as may be agreed upon by Borrower and
Agent at the time of Borrower's request to Agent for the issuance
thereof. Upon Agent's issuance of a Letter of Credit, one-half
(1/2) of the amount of such Letter of Credit shall automatically be
deemed to have been provided by Whitney, and, without the
necessity of further documentation transferring an interest in
the Letter of Credit to Xxxxxxx, Xxxxxxx 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 2.2 below.
Section 2. Notes Evidencing Borrowings.
2.1 Term Notes. The Non-Revolving Advances 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 FIVE MILLION AND NO/100 DOLLARS
($5,000,000.00) 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 "Term Note" and collectively as the "Term
Notes"), with appropriate insertions, each of which shall be
dated the date hereof and shall be payable in full on March 31,
2004. All Non-Revolving 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 Term Note, but
Banks' failure to record or to record correctly such Non-
Revolving Advances shall in no way affect Borrower's obligation
to repay same. Each Term Note shall provide for payment of
quarterly installments of principal commencing June 30, 1997,
each in an amount equal to one-twenty-eighth (1/28) of the
aggregate amount of all Non-Revolving Advances made by Banks to
Borrower during the period from the date hereof until and
including March 31, 1997.
2.2 Revolving Notes. The Revolving Advances (including,
without limitation, the outstanding indebtedness of Borrower to
Banks under the Prior Notes which, as provided in Section 1.2,
shall be deemed a "Revolving 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 SIX MILLION AND NO/100 DOLLARS
($6,000,000.00) and in the forms set forth as Exhibits "D" and
"E" 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 "Revolving Note" and collectively as the
"Revolving Notes"), with appropriate insertions, each of which
shall be dated the date hereof and shall be payable in full on
December 31, 1998. All Revolving 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
Revolving Note, but Banks' failure to record or to record
correctly such Revolving Advances shall in no way affect
Borrower's obligation to repay same.
2.3 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 -- Term Credit Facility. In the absence of
an Event of Default, during the period from the date hereof
until, but not including, the Conversion Date, the Term Notes
shall bear interest at the Prime Rate, adjusted daily, or the
LIBO Rate, or some combination thereof, as specified in
Section 3.7 below. Thereafter, in the absence of an Event of
Default, the unpaid principal of the Term Notes shall bear
interest until paid at the Term Rate. Interest on the Term Notes
shall be paid quarterly in arrears on the last day of each March,
June, September and December commencing December 31, 1996, and
continuing until maturity. Borrower shall pay a fee of three-
eighths (3/8) of one percent (1%) per annum on the difference
between the maximum amount of the Term Credit Facility and the
aggregate amount of all outstanding Non-Revolving Advances
quarterly in arrears on December 31, 1996 and March 31, 1996. No
such fee shall thereafter be payable on the Term Credit Facility.
3.2 Interest -- Revolving Credit Facility. In the
absence of an Event of Default, the unpaid principal of the
Revolving Notes shall bear interest until paid at the Prime Rate,
adjusted daily, or the LIBO Rate, or some combination thereof, as
specified in Section 3.7 below. Interest prior to maturity shall
be payable quarterly in arrears on the last day of each March,
June, September and December commencing December 31, 1996, and
continuing until maturity. Interest after maturity of the
Revolving Notes for any reason whatsoever shall be increased to
the Prime Rate plus three percent (3%) and shall be payable on
demand. Upon the issuance of a Letter of Credit by Agent on
behalf of and for the account of Borrower, a fee of one percent
(1%) per annum on the principal amount of such Letter of Credit
shall be payable by Borrower for the number of days such Letter
of Credit is to remain outstanding. A fee on the Unused
Commitment of three-eighths (3/8) of one percent (1%) per annum
shall be payable by Borrower quarterly in arrears on the last day
of each March, June, September and December commencing December
31, 1996, and continuing until maturity.
3.3 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"), irrespective of whether there
has been an acceleration of the payment of principal. Such
interest at the Default Rate shall be payable on demand.
3.4 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.
3.5 Commitment Fee. No commitment fee shall be payable
by Borrower.
3.6 Method of Calculating Interest and Fees. Interest at
the Prime Rate and the Term 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.
3.7 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 or, until but not including the Conversion Date,
the Term 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 (x) no
Advance shall be made to Borrower as a LIBO Rate Advance
under the Term Credit Facility after the day that is one
month prior to the Conversion Date and (y) no Advance shall
be made to Borrower as a LIBO Rate Advance under the
Revolving Credit Facility after the day that is one month
prior to the Termination Date. For purposes of this
paragraph (a), an Advance shall be deemed "made" upon an
initial borrowing by Borrower under paragraph (b) below, any
conversion of such Advance under paragraph (c) below, and
upon any continuation of such Advance under paragraph (d)
below.
(b) With respect to any new Advance, Borrower shall
provide Agent with telephonic notice of its intended
borrowing, which notice must be received by Agent prior to
10:00 A.M., New Orleans time, at least one (1) Business Day
prior to the requested Borrowing Date, which notice shall
specify (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of LIBO
Rate Advances or Prime Rate Advances or a combination
thereof, (iv) the respective amounts of each such type of
Advance, and (v) if the borrowing is to be entirely or
partly of LIBO Rate Advances, the respective lengths of the
Interest Periods therefor.
(c) Borrower may elect from time to time to convert
any of its LIBO Rate Advances to Prime Rate Advances by
giving Agent telephonic notice of such election, which
notice must be received by Agent prior to 10:00 A.M., New
Orleans time, at least one (1) Business Day prior to the
requested conversion; provided that any such conversion, of
LIBO Rate Advances shall only be made on the last day of an
Interest Period with respect thereto. Borrower may elect
from time to time to convert any of its Prime Rate Advances
to LIBO Rate Advances by giving Agent telephonic notice of
such election, which notice must be received by Agent prior
to 10:00 A.M., New Orleans time, at least one (1) Business
Day prior to the requested conversion. Any such notice of
conversion to LIBO Rate Advances shall specify the length of
the initial Interest Period thereof and the amount of the
Prime Rate Advance to be converted. All or any part of
Borrower's outstanding LIBO Rate Advances and Prime Rate
Advances may be converted as provided herein; provided that
(i) no Prime Rate Advance may be converted into a LIBO Rate
Advance when any Event of Default has occurred and is
continuing, (ii) partial conversions of Prime Rate Advances
to LIBO Rate Advances shall be in an aggregate principal
amount of $500,000 or a whole multiple of $100,000 in excess
thereof, (iii) partial conversions of LIBO Rate Advances to
Prime Rate Advances shall be in an aggregate principal
amount of $500,000 or a whole multiple of $100,000 in excess
thereof, (iv) no Prime Rate Advance under the Term Credit
Facility may be converted into a LIBO Rate Advance after the
date that is one month prior to the Conversion Date, (v) 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 (vi) 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 Term Credit Facility may be continued as such
after the date that is one month prior to the Conversion
Date, (iii) 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 (iv) 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 under the same Credit
Facility, 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 under both Credit Facilities, 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 under both Credit Facilities.
(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 3.7 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 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
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 (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, Letters of
Credit or Revolving Commitment, 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,
Letters of Credit or Revolving Commitment, 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 Prepayments -- Term Credit Facility. Borrower may
from time to time, upon at least one (1) Business Day's prior
telephonic notice (confirmed in writing) received by Agent,
prepay the principal of the Term Notes in whole or in part
without premium; provided, however, (a) any partial prepayment of
principal shall be in an amount of $1,000.00 or an integral
multiple thereof,(b) such prepayments shall be applied to the
unpaid installments of the Term Notes in the inverse order of
their maturity and (c) Borrower may not make any prepayment of
one Term Note unless it makes an equal prepayment of the other
Term Note. Any prepayment of the principal of the Term Notes
shall include accrued interest and other charges to the date of
prepayment on the principal amount being prepaid.
4.5 Borrowing Base for Revolving Credit Facility;
Mandatory Prepayments. Notwithstanding anything contained herein
or in any of the Loan Documents to the contrary, it is expressly
understood and agreed that Banks shall not be obligated to make
Revolving Advances to Borrower, or permit any Revolving Advances
to Borrower to remain outstanding, or to issue Letters of Credit
to Borrower, to the extent that the aggregate outstanding
principal amount under the Revolving Notes, together with the
aggregate principal amount of any Letters of Credit outstanding
at any time, exceeds or (after the making of any requested
Revolving Advance or issuance of any requested Letter of Credit)
would exceed the Revolving Commitment. If at any time the
aggregate outstanding principal amount under the Revolving Notes,
together with the aggregate principal amount of any Letters of
Credit outstanding, exceeds the Revolving Commitment, Borrower
shall promptly, and in any event within five (5) days thereafter,
(a) prepay a principal amount outstanding under the Revolving
Notes equal to such excess or (b) provide Banks with additional
collateral sufficient to bring the principal amount of the
Revolving Credit Facility within the Revolving Commitment, such
sufficiency of the additional collateral to be determined by
Banks in each Bank's sole discretion.
4.6 Reduction of Credit. Borrower may from time to time,
upon at least three (3) Business Day's prior telephonic notice
(confirmed in writing) to Agent, (a) permanently reduce the
amount of the maximum Non-Revolving Commitment under the Term
Credit Facility, but only upon payment of the outstanding
principal amount of each Term Note in excess of the then reduced
amount of the maximum Non-Revolving Commitment available under
the Term Credit Facility and/or (b) 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 Revolving Note in excess 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. Borrower may at any
time on like notice (x) terminate the maximum Non-Revolving
Commitment available under the Term Credit Facility upon payment
in full of the Term Notes and other liabilities of Borrower
relating to the Term Credit Facility and/or (y) terminate the
maximum Revolving Commitment available under the Revolving Credit
Facility upon payment in full of the Revolving Notes and other
liabilities of Borrower relating to the Revolving Credit
Facility.
Section 5. Collateral.
5.1 Security for the Credit Facility. As security for
the Credit Facility and the borrowings under this Agreement with
respect thereto: (a) Borrower has granted unto and in favor of
Banks a first mortgage lien upon certain real property situated
in Houma, Terrebonne Parish, Louisiana, evidenced by:
(i) That certain 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, as
corrected by that certain Act of Correction of
Collateral Mortgage Note by GIF, First NBC and
Xxxxxxx X. Xxxxx, dated July 27, 1989 (the "GIF
Property Collateral Note Act of Correction"), a copy
of which Collateral Mortgage Note, together with the
Act of Correction, is annexed to the Fourth Loan
Agreement (such Collateral Mortgage Note, as
corrected by the GIF Property Collateral Note Act of
Correction, as further amended, extended and renewed
from time to time, hereinafter referred to as the
"GIF Property Collateral Note");
(ii) That certain 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
Xx. 000, xxxxx 000, xxxxx Xxxxx Xx. 000000, which
mortgage secures the GIF Property Collateral Note, 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
Mortgage Book Xx. 000, xxxxx 000, xxxxx Xxxxx
Xx. 000000 (the "GIF Property Collateral Mortgage
Supplement and Amendment"), a copy of which Act of
Collateral Mortgage, together with the GIF Property
Collateral Mortgage Supplement and Amendment, is
annexed to the Fourth Loan Agreement (such Act of
Collateral Mortgage, as supplemented and amended by
the GIF Property Collateral Mortgage Supplement and
Amendment, and as further supplemented, amended and
reinscribed from time to time, hereinafter referred
to as the "GIF Property Collateral Mortgage");
(iii) That certain Collateral Pledge Agreement and Receipt
No. 32070, dated December 17, 1986, by GIF to First
NBC, with respect to the GIF Property Collateral
Note, as amended by that certain First Amendment to
Collateral Pledge Agreement, dated as of November 3,
1987, by and between GIF and First NBC (the "GIF
Property First Pledge Amendment"), as further amended
by that certain Second Amendment to Collateral Pledge
Agreement, dated July 27, 1989, by and between GIF
and First NBC (the "GIF Property Second Pledge
Amendment"), a copy of which Collateral Pledge
Agreement and Receipt No. 32070, together with the
GIF Property First Pledge Amendment and the GIF
Property Second Pledge Amendment, is annexed to the
Fourth Loan Agreement (such Collateral Pledge
Agreement, as amended by the GIF Property First
Pledge Amendment, the GIF Property Second Pledge
Amendment, and as further supplemented and amended
from time to time, hereinafter referred to as the
"GIF Property Pledge Agreement");
(iv) That certain Collateral Pledge Agreement and Receipt
(Possessory Collateral Security Agreement)
No. 1000107, dated March 1, 1990, by Borrower to
First NBC, with respect to the GIF Property
Collateral Note, a copy of which Collateral Pledge
Agreement (Possessory Collateral Security Agreement)
No. 1000107 is annexed to the Fourth Loan Agreement
(such Collateral Pledge Agreement and Receipt
(Possessory Collateral Security Agreement), as
supplemented and amended from time to time,
hereinafter referred to as the "GIF Property First
Additional Pledge Agreement");
(v) 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, a copy of which Collateral Mortgage Note
is annexed to the Fourth Loan Agreement (as amended,
extended and renewed from time to time, hereinafter
referred to as the "Real Property Collateral Note");
(vi) That certain Act of Collateral Mortgage of Borrower
dated October 29, 1991 in favor of Mortgagee and any
and all future holders, which mortgage secures the
Real Property Collateral Note, a copy of which Act of
Collateral Mortgage is annexed to the Fourth Loan
Agreement (such Act of Collateral Mortgage, as
supplemented, amended and reinscribed from time to
time, hereinafter referred to as the "Real Property
Collateral Mortgage");
(vii) 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 Property Collateral
Note and the Real Property Collateral Note, as
amended by that certain First Amendment to Collateral
Pledge Agreement and Receipt (Possessory Collateral
Security Agreement), dated February 25, 1993, by and
among Borrower, Banks and Agent (the "Property First
Additional Pledge Amendment"), as further amended by
that certain Second Amendment to Collateral Pledge
Agreement and Receipt (Possessory Collateral Security
Agreement), dated of even date herewith, by and among
Borrower, Banks and Agent (the "Property Second
Additional Pledge Amendment") a copy of which
Collateral Pledge Agreement (Possessory Collateral
Security Agreement) No. 1000760, together with the
Property First Additional Pledge Amendment is annexed
to the Fourth Loan Agreement and a copy of the
Property Second Additional Pledge Amendment, is
annexed hereto as Exhibit "F" (such Collateral Pledge
Agreement (Possessory Collateral Security Agreement),
as amended by the Property First Additional Pledge
Amendment, the Property Second Additional Pledge
Amendment, and as further supplemented and amended
from time to time, hereinafter referred to as the
"Property Additional Pledge Agreement"); and
(viii) That certain Collateral Assignment of Leases and
Rents by Borrower dated October 29, 1991, with
respect to the Real Property, as amended by that
certain First Amendment to Collateral Assignment of
Leases and Rents, dated February 25, 1993 by and
among Borrower, Banks and Agent (the "First Lease
Assignment Amendment"), as further amended by that
certain Second Amendment to Collateral Assignment of
Leases and Rents of even date herewith by and among
Borrower, Banks and Agent (the "Second Lease
Assignment Amendment") a copy of which Lease
Assignment, together with the First Lease Assignment
Amendment, is annexed to the Fourth Loan Agreement
and a copy of the Second Lease Assignment Amendment,
is annexed hereto as Exhibit "G" (the Lease
Assignment, as amended by the First Lease Assignment
Amendment, the Second Lease Assignment Amendment, and
as further supplemented and amended from time to
time, hereinafter referred to as the "Lease
Assignment"); and
(b) Borrower has granted unto and in favor of Banks a first
mortgage lien upon the Original GIF Equipment, the New GIF
Equipment and the GIFI Equipment, as well as a second mortgage
lien on the Original GIF Equipment and a security interest in the
Equipment. The mortgage creating a first mortgage lien on the
Original GIF Equipment contemplated hereby has been evidenced by:
(i) That certain 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 Collateral Mortgage Note is annexed to the
Fourth Loan Agreement (the "Original GIF Equipment
Collateral Note");
(ii) That certain 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 Original GIF
Equipment Collateral Note, as amended by that certain
Partial Release of Collateral Chattel Mortgage, dated
February 4, 1987, by First NBC in favor of GIF (the
"First Partial Release"), a copy of which Act of
Collateral Chattel Mortgage, together with the First
Partial Release, is annexed to the Fourth Loan
Agreement (such Act of Collateral Chattel Mortgage,
as amended by the First Partial Release, and as
further supplemented, amended and reinscribed from
time to time, hereinafter referred to as the
"Original GIF Equipment Collateral Chattel
Mortgage"); and
(iii) That certain Collateral Pledge Agreement and Receipt
No. 32069, dated December 17, 1986, by GIF to First
NBC, with respect to the Original GIF Equipment
Collateral Note, as amended by that certain First
Amendment to Collateral Pledge Agreement, dated as of
November 3, 1987, by and between GIF and First NBC
(the "Original GIF Equipment First Pledge
Amendment"), and as further amended by that certain
Second Amendment to Collateral Pledge Agreement,
dated July 27, 1989, by and between GIF and First NBC
(the "Original GIF Equipment Second Pledge
Amendment"), a copy of which Collateral Pledge
Agreement and Receipt No. 32069, together with the
Original GIF Equipment First Pledge Amendment and the
Original GIF Equipment Second Pledge Amendment is
annexed to the Fourth Loan Agreement (such Collateral
Pledge Agreement, as amended by the Original GIF
Equipment First Pledge Amendment and the Original GIF
Equipment Second Pledge Amendment, and as further
supplemented and amended from time to time,
hereinafter referred to as the "Original GIF
Equipment Pledge Agreement").
The mortgage creating a first mortgage lien on the
New GIF Equipment and a second mortgage lien on the Original
GIF Equipment contemplated hereby has been evidenced by:
(i) That certain 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, a copy of
which Collateral Chattel Mortgage Note is annexed to
the Fourth Loan Agreement (the "Second GIF Equipment
Collateral Note");
(ii) That certain 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 Second GIF
Equipment Collateral Note, a copy of which Act of
Collateral Chattel Mortgage is annexed to the Fourth
Loan Agreement (such Act of Collateral Chattel
Mortgage, as supplemented, amended and reinscribed
from time to time, hereinafter referred to as the
"Second GIF Equipment Collateral Chattel Mortgage");
and
(iii) That certain Collateral Pledge Agreement and Receipt
No. 37588, dated July 27, 1989, by GIF to First NBC,
with respect to the Second GIF Equipment Collateral
Note, a copy of which Collateral Pledge Agreement and
Receipt No. 37588 is annexed to the Fourth Loan
Agreement (such Collateral Pledge Agreement and
Receipt No. 37588, as supplemented and amended from
time to time, hereinafter referred to as the "Second
GIF Equipment Pledge Agreement").
The mortgage creating a first mortgage lien on the
GIFI Equipment contemplated hereby has been evidenced by:
(i) That certain 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, a copy of
which Collateral Chattel Mortgage Note is annexed to
the Fourth Loan Agreement (the "GIFI Equipment
Collateral Note");
(ii) That certain 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 GIFI Equipment Collateral Note, a copy of
which Act of Collateral Chattel Mortgage is annexed
to the Fourth Loan Agreement (such Act of Collateral
Chattel Mortgage, as supplemented, amended and re-
inscribed from time to time, hereinafter referred to
as the "GIFI Equipment Collateral Chattel Mortgage");
and
(iii) That certain Collateral Pledge Agreement and Receipt
No. 37596, dated July 27, 1989, by GIFI to First NBC
with respect to the GIFI Equipment Collateral Note, a
copy of which Collateral Pledge Agreement and Receipt
No. 37596 is annexed to the Fourth Loan Agreement
(such Collateral Pledge Agreement and Receipt No.
37596, as supplemented and amended from time to time,
hereinafter sometimes referred to as the "GIFI
Equipment Pledge Agreement").
The first security interest in the Equipment contemplated
hereby has been evidenced by:
(i) That certain Commercial Security Agreement (Multi-
Purpose) dated October 29, 1991 by and among
Borrower, Banks and Agent, and creating a security
interest in the Equipment and the Fixtures, as
amended by that certain First Amendment to Commercial
Security Agreement, dated February 25, 1993, by and
among Borrower, Banks and Agent (the "First Security
Agreement Amendment"), as further amended by that
certain Second Amendment to Commercial Security
Agreement, of even date herewith, by and among
Borrower, Banks and Agent (the "Second Security
Agreement Amendment"), a copy of which Security
Agreement, together with the First Security Agreement
Amendment, is attached to the Fourth Loan Agreement,
and a copy of the Second Security Agreement Amendment
is annexed hereto as Exhibit "H" (such Security
Agreement, as amended by the First Security Agreement
Amendment, the Second Security Agreement Amendment
and as further supplemented and amended from time to
time, hereinafter sometimes referred to as the
"Security Agreement"); and
(ii) A UCC-1 Financing Statement executed by Borrower and
Agent, a copy of which UCC-1 Financing Statement is
annexed to the Fourth Loan Agreement (such UCC-1
Financing Statement, as supplemented and amended from
time to time, hereinafter sometimes referred to as
the "Financing Statement").
Section 6. Representations and Warranties of Borrower.
Borrower represents and warrants to Banks and Agent that:
6.1 Corporate Existence. Borrower is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Louisiana; and Borrower has all necessary cor-
porate 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.
6.2 Authorization; Validity. Borrower is and/or has been
duly authorized to execute and deliver this Agreement, the Notes
and all other Loan Documents to which Borrower is a party and is
and will continue to be duly authorized to borrow monies
hereunder and to perform its obligations under this Agreement,
the Notes and all other Loan Documents to which Borrower is a
party. Each of this Agreement, the Notes, and each of the other
Loan Documents to which Borrower is a party, as executed and
delivered, constitutes the legal, valid and binding obligation of
Borrower, enforceable in accordance with the respective terms
thereof.
6.3 No Conflicts. The execution and delivery of the Loan
Documents and the performance by Borrower 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 of any agreement
binding upon Borrower, as the case may be.
6.4 Financial Statements. Borrower's audited financial
statement as of December 31, 1995, 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 September 30, 1996, 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, 1995, there has been no material adverse change in
Borrower's financial condition.
6.5 Litigation. To the best of Borrower's knowledge,
after due inquiry, no litigation or governmental proceedings are
pending or threatened against Borrower, the results of which
might materially affect its financial condition or operations,
except those referred to in a schedule furnished contemporaneous-
ly 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 6.4, Borrower does not have any material contingent
liabilities.
6.6 Liens. None of the assets of Borrower with a net
book value of greater than $25,000.00 is subject to any Lien,
except for the Liens created pursuant to the Collateral Documents
and Permitted Liens.
6.7 Subsidiaries. Borrower has no subsidiaries.
6.8 Purpose. The proceeds of the Revolving Credit
Facility shall be used by Borrower only for the support of work-
ing capital and for other general corporate purposes. The
proceeds of the Term Credit Facility shall be used by Borrower
only to make capital improvements to the Real Property and to
acquire additional Equipment to be located on the Real Property.
6.9 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, without limiting the
generality of Section 6.8 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.
6.10 Compliance with ERISA. Borrower is in compliance
with all statutes and governmental rules and regulations applica-
ble 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 (any such plan being hereinafter called
the "Plan"), which could result in Borrower's incurring any
material liability, fine or penalty. No Reportable Event (as
defined in ERISA) has occurred with respect to any such Plan.
Borrower has not withdrawn from any such Plan or initiated steps
to do so and no steps have been taken to terminate any such Plan.
6.11 Consents. No consent, approval or authorization of,
or registration or declaration with, any federal or state govern-
mental authority or other regulatory agent for the validity of
the execution and delivery or for the performance by Borrower of
the Loan Documents is required.
6.12 Tax Returns. Borrower 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.
6.13 Ownership of Borrower. Fifty percent (50%) of the
issued and outstanding stock of Borrower is owned by the Labordes
and (50%) of the issued and outstanding stock of Borrower is
owned by the Wilsons.
6.14 Operation of Business. Borrower 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 Borrower is not in violation of any valid rights
of others with respect to any of the foregoing.
6.15 Rights in Properties; Liens. Borrower 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 6.4 hereof, and none of
the properties, assets or leasehold interests of Borrower is
subject to any Lien, except as permitted by Section 7.11 hereof.
6.16 Debt. Borrower has no Debt, except as disclosed in
the financial statements described in Section 6.4 hereof and as
otherwise permitted by this Agreement.
6.17 Disclosure. No statement, information, report,
representation or warranty made by Borrower in this Agreement or
in any of the other Loan Documents or furnished by Borrower to
Banks or Agent in connection with the negotiation or preparation
of this Agreement 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 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 or on the
Collateral.
6.18 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. Borrower has always maintained its
registered office in either Terrebonne or East Baton Rouge
Parish, Louisiana. Borrower does not do, and has never done, any
business in any location other than as set forth in this Section.
No persons other than Borrower, Agent and Banks have possession
of any of the Collateral.
6.19 Investment Company Act. Borrower is not an
"Investment Company" within the meaning of the Investment Company
Act of 1940, as amended.
6.20 Other Agreements. With the exception of construction
contracts entered into by Borrower in the ordinary course of
Borrower's business, Borrower is not 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 the ability of Borrower to pay and
perform its obligations under the Loan Documents to which it is a
party. Borrower is not 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.
6.21 Compliance with Law. Borrower is in compliance with
all laws, rules, regulations, orders and decrees which are
applicable to Borrower or any of its properties. Without
limiting the generality of the foregoing:
(a) Employment Matters. Borrower is in full
compliance with all applicable laws, rules, regulations and
governmental standards regarding employment, including,
without limitation, the minimum wage and overtime provisions
of the Fair Labor Standards Act, as amended (29 U.S.C.
Sections 201-219), and the regulations promulgated thereunder.
(b) Environmental Matters.
(i) Borrower and all of its properties, assets and
operations are in full compliance with all
Environmental Laws. Borrower is not aware of,
nor has Borrower 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 with all
Environmental Laws.
(ii) With the exception of the permits specifically
referred to in Section 7.8 hereof, each of
which Borrower shall obtain and/or file, as the
case may be, in accordance with the terms of
Section 7.8, Borrower 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 business and/or own its
assets or properties.
(iii) Borrower has on file an SPCC Plan as required
under applicable Environmental Laws in
connection with Borrower'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 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, threatened against Borrower relating
in any way to any Environmental Law. Borrower
has not (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.
6.22 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.
6.23 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 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.
6.24 Taxpayer I.D. Number. Borrower's Federal Taxpayer
Identification Number is 00-0000000.
Section 7. Borrower's Covenants.
From the date of this Agreement and thereafter until the
expiration or termination of the Commitments, 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:
7.1 Financial Statements. Furnish to Agent:
(a) within one hundred twenty (120) days after the
end of each fiscal year, a copy of Borrower's
financial statements, audited by independent
certified public accountants of nationally
recognized standing selected by Borrower and
reasonably satisfactory to Banks, prepared in
conformity with GAAP;
(b) within forty-five (45) days after the end of
each month, a copy of Borrower's unaudited
financial statements prepared in conformity
with GAAP, except for the absence of footnotes
normally associated with financial statements
prepared in accordance with GAAP;
(c) together with the financial statements
furnished by Borrower under preceding clause
(a), a certificate of the president or chief
financial officer of Borrower to the effect
that no Event of Default with respect to
Borrower, or event which might mature into an
Event of Default with respect to Borrower, has
occurred and is continuing;
(d) 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;
(e) written notice of any and all litigation
affecting Borrower, directly or indirectly;
provided, however, this requirement shall not
apply to litigation involving Borrower and any
other party if such litigation involves, in the
aggregate, less than $100,000.00;
(f) prompt notice of any change in the present
officers, directors and/or stockholders of
Borrower; and
(g) from time to time, such other information as
Banks may reasonably request.
7.2 Access. Permit access by Banks and Agent to the
books and records and other property of Borrower during normal
business hours and upon reasonable notice and permit Banks to
make copies of said books and records.
7.3 Insurance. Maintain with financially sound and
reputable insurance companies workmen's compensation insurance,
liability insurance and insurance on its 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 in
which Banks or Agent has a Lien, Borrower shall provide Agent
with duplicate originals or certified copies of such policies of
insurance in such forms and amounts, and containing such terms
and conditions, as are satisfactory to Banks, 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.
7.4 Repair. Maintain, preserve and keep Borrower's pro-
perties in good repair, working order and condition, and make
necessary and proper repairs, renewals and replacements so that
its business carried on in connection therewith may be properly
conducted at all times.
7.5 Taxes. Pay or discharge at or before maturity or
before becoming delinquent (a) all taxes, levies, assessments and
governmental charges imposed on Borrower 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; provided, however, that Borrower
shall not 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.
7.6 Corporate Existence. Maintain its corporate
existence in good standing.
7.7 Merger. Without the prior written consent of Banks,
not:
(a) be a party to any merger or consolidation;
(b) except in the normal course of its business,
sell, transfer, convey, or lease all or any
substantial part of Borrower's assets;
(c) sell or assign, except in the normal course of
its business, with or without recourse, any
accounts receivable or chattel paper.
7.8 Compliance. Comply with all statutes, laws, ordi-
nances, orders, rules and regulations applicable to Borrower,
including, without limitation, all Environmental Laws and ERISA;
provided, however, Borrower shall be deemed to be in compliance
with this requirement for such time as it 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 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 any other condition, event or
transaction with respect to, any such Plan which could result in
Borrower's incurring any material liability, fine or penalty.
Without limiting the generality of the foregoing, Borrower
shall 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 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 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.
Without limiting the generality of the foregoing, Borrower
warrants that it has filed applications with the appropriate
regulatory agencies for all federal NPDES water discharge permits
and Louisiana LWDPS water discharge permits required under any
Environmental Law in order to conduct Borrower's business and/or
own its assets or properties. Borrower shall comply with all
appropriate information requests by, and otherwise assist as
appropriate, each regulatory agency processing Borrower's permit
applications so as to ensure timely and uninterrupted review of
each permit application.
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, including
pending permit applications. All permits required hereunder
shall be obtained and/or filed, as the case may be, within six
(6) months from the effective date hereof.
Anything contained herein to the contrary notwithstanding,
Borrower shall not use any of its properties or allow such
properties to be used for the storage, treatment or disposal of
Solid Waste or Hazardous Substances if such storage, treatment or
disposal would require a permit under any Environmental Laws.
7.9 Use of Proceeds. Not use or permit any proceeds of
the Loans 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.
7.10 Financial Covenants. Maintain:
(a) a ratio of current assets to current
liabilities, as determined in accordance with
GAAP, in excess of 1.33 to 1;
(b) a minimum Net Worth of NINETEEN MILLION AND
NO/100 DOLLARS ($19,000,000.00) for the period
commencing September 30, 1996 and ending
December 31, 1997; a minimum Net Worth of
TWENTY-ONE MILLION AND NO/100 DOLLARS
($21,000,000.00) for the period January 1, 1998
through December 31, 1998, and a minimum Net
Worth of TWENTY-THREE MILLION AND NO/100
DOLLARS ($23,000,000.00) from and including
January 1, 1999 and thereafter;
(c) a ratio of Debt to Net Worth no greater than
1.1 to 1; and
(d) a ratio of Cash Flow to Debt Service of at
least 1.5 to 1, 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 7.10(d) unless Borrower fails to
meet the ratio described in this
Section 7.10(d) for three (3) successive fiscal
quarters.
7.11 Liens. Not create, incur, or suffer to exist any
Lien 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 on its property 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;
(e) lessors' interests under financing leases;
(f) liens on assets of Borrower not covered by the
Loan Documents which liens secure obligations
of Borrower in the ordinary course of business
which in the aggregate for all such obligations
of Borrower do not exceed $250,000.00; and
(g) the Liens created pursuant to the Loan
Documents.
7.12 Debt. Not 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 would exceed the sum of
$250,000.00.
7.13 Redemptions, etc. Not, without the prior written
approval of Banks: (1) redeem, purchase or acquire, directly or
indirectly, any of its stock; (2) authorize or issue additional
stock of any class; (3) authorize any new class of stock;
(4) authorize any currently existing or new classes of stock to
become voting stock; or (5) sell or transfer any treasury shares
of stock. Provided, however, subparts (2) through (5) of this
Section 7.13 shall not apply except to the extent that as a
result thereof either (a) the Labordes would fail to retain at
least forty-five percent (45%) of the issued and outstanding
stock of Borrower, or (b) the Wilsons would fail to retain at
least forty-five percent (45%) of the issued and outstanding
stock of Borrower. For purposes of this Section 7.13, the
Labordes and the Wilsons shall be deemed owners of the issued and
outstanding stock of Borrower with respect to any issued and
outstanding stock that is owned either by the Labordes or the
Wilsons, any descendant of the Labordes or the Wilsons, any trust
for the exclusive benefit of the Labordes or the Wilsons or any
descendant of the Labordes or the Wilsons, or the respective
estates of the Labordes or the Wilsons or any descendant of the
Labordes or the Wilsons if said stock will ultimately pass from
the respective estates of the Labordes or the Wilsons to a
descendant or a trust for the exclusive benefit of a descendant
of the Labordes or the Wilsons.
7.14 Capital Expenditures. Not make capital expenditures
which would exceed $9,000,000.00 in calendar year 1996;
$8,000,000.00 in calendar year 1997; or $2,000,000.00 per
calendar year thereafter.
7.15 Dividends. Not declare or pay any dividends or make
any other distribution on account of, or purchase, acquire,
redeem or retire any capital stock of, Borrower, whether now or
hereafter outstanding, provided that, so long as there is no
Event of Default hereunder and Borrower continues as an
S Corporation, Borrower shall be permitted to pay the following
cash dividends on a cumulative basis, to-wit:
(a) commencing with Borrower's first fiscal quarter
1996 and with respect to each fiscal quarter
thereafter, regular dividends not to exceed 40%
of Borrower's pretax income earned in the
fiscal quarter immediately prior to the fiscal
quarter in question, as determined in
accordance with GAAP; and
(b) commencing annually in 1996, special dividends
not to exceed 65% of Borrower's pretax income
earned in the fiscal year of Borrower
immediately prior to the fiscal year in
question, as determined in accordance with GAAP
and as provided in the audited financial
statements furnished to Agent pursuant to
Section 7.1(a) hereof, less the sum of
dividends paid in the 2nd, 3rd, and 4th fiscal
quarters of such prior fiscal year and
dividends paid in the 1st fiscal quarter of the
fiscal year in question.
7.16 Shareholder or Employee Loans. Not make advances or
loans to Borrower's employees or shareholders which exceed the
aggregate amount of $100,000.00.
7.17 Change in Business. Carry on and conduct its
business in substantially the same manner and in substantially
the same fields of enterprise as it is presently conducted;
provided, however, that the foregoing shall not prevent Borrower
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.
7.18 Accounts Receivable. Provide Banks with aging
reports of Borrower's accounts receivable on a monthly basis.
7.19 Compliance with Agreements. Comply with all
indentures, mortgages, deeds of trust and other agreements
binding on it or affecting its properties or business.
7.20 Further Assurances. 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.
7.21 Disposition of Assets. Not sell, lease, assign,
transfer or otherwise dispose of any of its assets, except
dispositions of inventory and equipment in the ordinary course of
business and as otherwise provided in this Agreement.
7.22 Change Tax I.D. Number. Not change its Federal
Taxpayer Identification Number as set forth in Section 6.24
hereof without giving Agent at least sixty (60) days' prior
written notice.
7.23 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
(including, without limitation, the Real Property and the GIFI
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, whether prior to or during the term of
this Agreement, and whether by Borrower or any predecessor in
title to Borrower's property or any officers, employees, agents,
contractors or subcontractors of Borrower or any predecessor in
title to Borrower's property, 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.
7.24 GIFI Property. Not create a Lien on the GIFI
Property in favor of, or otherwise convey the GIFI Property to,
any Person without the prior written consent of Banks.
Section 8. 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 9 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:
8.1 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.
8.2 Notes. Its duly executed Notes payable to the order
of Banks.
8.3 Incumbency. Certificates of Borrower's secretary or
assistant secretary, substantially in the form of Exhibit "I"
hereto, certifying the name of the officers of Borrower
authorized to execute the Loan Documents, and all other documents
or certificates to be delivered hereunder, together with the true
signatures of such officers.
8.4 Certification. A certificate, substantially in the
form of Exhibit "J" hereto, of the president or chief financial
officer of Borrower as to the matters set out in Sections 9.1 and
9.2 hereof.
8.5 GIF Collateral Mortgage. The duly executed GIF
Collateral Mortgage.
8.6 GIF Collateral Chattel Mortgages. The duly executed
GIF Collateral Chattel Mortgages.
8.7 Lease Assignment. The duly executed Lease
Assignment.
8.8 GIFI Collateral Chattel Mortgage. The duly executed
GIFI Collateral Chattel Mortgage.
8.9 Real Property Collateral Mortgage. The duly executed
Real Property Collateral Mortgage.
8.10 Security Agreement. The duly executed Security
Agreement.
8.11 Financing Statement. The duly executed Financing
Statement.
8.12 Other Documents. Any and all other documents,
agreements and/or instruments reasonably requested by Bank.
8.13 Opinion. The opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Xxxxxxx, counsel to Banks and Agent,
addressed to Banks and Agent, to the effect that (a) Borrower is
a corporation 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;
(c) 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, nor to the best of
counsel's knowledge, in conflict with any agreement binding upon
Borrower; and (d) this Agreement, the Notes, the Real Property
Collateral Mortgage, the Lease Assignment, the Security Agreement
and the Financing Statement are the legal and binding obligations
of Borrower enforceable in accordance with their respective
terms, except as enforcement may be limited by applicable bank-
ruptcy, reorganization, moratorium or similar laws.
8.14 Real Property Title Insurance. A mortgagee's title
policy in the amount of $3,000,000.00 with respect to the Real
Property Collateral Mortgage, in form and substance satisfactory
to Banks.
Section 9. 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 Credit Facilities is subject to, in
addition to the satisfaction of all other conditions precedent
applicable to the Credit Facilities and set forth in Section 8
above, the satisfaction of each of the following conditions
precedent:
9.1 Default. Before and after giving effect to such
Advance and/or Letter of Credit under the Credit Facility in
question, no Event of Default shall have occurred and be con-
tinuing.
9.2 Warranties. Before and after giving effect to such
Advance and/or Letter of Credit under the Credit Facility in
question, the representations and warranties in Section 6 hereof
shall be true and correct as though made on the date of such
Advance and/or Letter of Credit under the Credit Facility in
question, except for such changes as are specifically permitted
hereunder. With respect to such changes, the Banks hereby
specifically permit the Wilsons and the Labordes to reduce their
respective ownership interests in Borrower to forty-five percent
(45%) of Borrower's issued and outstanding stock in order to
permit employees of Borrower to acquire up to ten percent (10%)
of Borrower's issued and outstanding stock, and upon such
reduction, the representation and warranty in Section 6.13 shall
be automatically deemed to reflect the Labordes' and Wilsons' new
ownership percentages.
Section 10. Events of Default.
The following events shall constitute Events of Default
hereunder and under the Credit Facilities, individually and
collectively, and under all other Loan Documents:
10.1 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;
10.2 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;
10.3 Other Default. Any default of any other obligation
of Borrower under the terms of any note or notes, mortgage,
indenture, loan agreement or security document of Borrower,
including, without limitation, any of the Loan Documents, which
default shall continue for a period of thirty (30) days following
written notice thereof to Borrower from Banks or Agent, it being
expressly understood and agreed that a default under any note,
mortgage, indenture, loan agreement or security document of
Borrower, including, without limitation, any of the Loan
Documents, shall constitute a default under all other notes,
mortgages, indentures, loan agreements and security documents
held by Banks or Agent, including, without limitation, the Loan
Documents;
10.4 Insolvency. 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 or any of its property; or, in the
absence of such application, consent or acquiescence, a trustee
or receiver is appointed for Borrower or for a substantial part
of any of its property 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, and if instituted against Borrower, it is consented to
or acquiesced in by Borrower, or remains for thirty (30) days
undismissed; or any warrant of attachment is issued against any
substantial portion of the property of Borrower which is not
released within thirty (30) days of service;
10.5 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;
10.6 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 10), which default shall continue for
a period of thirty (30) days after written notice thereof to
Borrower from Banks or Agent;
10.7 Representation or Warranty. Any representation or
warranty made by Borrower herein is untrue in any material
respect, or any schedule, statement, report, notice or writing
furnished by Borrower or any of the Owners to Banks is untrue in
any material respect on the date as of which the facts set forth
are stated or certified which default shall continue for a period
of thirty (30) days after written notice thereof to Borrower from
Banks or Agent;
10.8 Change in Ownership of Borrower. Either: (a) the
Labordes fail to retain ownership of at least forty-five percent
(45%) of the issued and outstanding stock of Borrower (provided,
however, that no Event of Default shall occur under this
Agreement so long as at least forty-five percent (45%) of the
issued and outstanding stock of Borrower is owned by the
Labordes, any descendant of the Labordes, any trust for the
exclusive benefit of the Labordes or any descendant of the
Labordes, or the respective estates of the Labordes or any
descendant of the Labordes if said stock will ultimately pass
from the respective estates of the Labordes to a descendant or a
trust for the exclusive benefit of a descendant of the Labordes);
or (b) the Wilsons fail to retain ownership of at least forty-
five percent (45%) of the issued and outstanding stock of
Borrower (provided, however, that no Event of Default shall occur
under this Agreement so long as at least forty-five percent (45%)
of the issued and outstanding stock of Borrower is owned by the
Wilsons, any descendant of the Wilsons, any trust for the
exclusive benefit of the Wilsons or any descendant of the
Wilsons, or the respective estates of the Wilsons or any
descendant of the Wilsons if said stock will ultimately pass from
the respective estates of the Wilsons to a descendant or a trust
for the exclusive benefit of a descendant of the Wilsons).
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 Commitments to be
terminated and the Notes to be due and payable, whereupon the
Commitments 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 10.4 occurs, the
Commitments shall immediately terminate, and the Notes shall
become immediately due and payable without declaration or notice
of any kind.
Section 11. Agent.
11.1 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 Loans or extend the maturity of any
obligation, reduce the bases on which any interest is computed,
release any Collateral, waive any provision regarding covenants
or obligations of Borrower or the Owners or Events of Default,
without the express written consent of all Banks.
11.2 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.
11.3 First NBC and Affiliates. With respect to the Notes
payable to the order of First NBC and the portion of the
Commitments 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.
11.4 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.
11.5 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.
11.6 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 11 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.
11.7 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.
11.8 Change in Specified Percentage. No Bank shall assign
outright its entire interest in the Credit Facilities or the
Commitments or make any participation without the consent of the
other Bank and Agent.
Section 12. General.
12.1 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" means a sum advanced by Banks to Borrower
pursuant to either of the Credit Facilities.
"Agent" has the meaning ascribed to the term on the
first page hereof.
"Agreement" means this Fifth Amended and Restated
Revolving Credit and Term Loan Agreement, as it has been and
may be amended, restated, modified and/or supplemented from
time to time.
"Assignment" has the meaning ascribed to the term in
the recitals to this Agreement.
"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 Base" means an amount equal to eighty
percent (80%) of the Eligible Receivables at the time in
question.
"Borrowing Date" means any Business Day specified in
a notice pursuant to Section 3.7 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.
"Cash Flow" means, for any period in question,
(a) the net income of Borrower plus depreciation and
interest, each determined in accordance with GAAP, less
(b) dividends and other distributions made by Borrower to
its shareholders during such period.
"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 GIF Collateral
Mortgage, the GIF Collateral Chattel Mortgages, the GIFI
Collateral Chattel Mortgage, the Lease Assignment, the Real
Property Collateral Mortgage, the Security Agreement, the
Financing Statement and any and all other documents,
instruments and agreements delivered to Agent or Banks to
secure the Loans and/or any other obligations described in
this Agreement, as the foregoing may be amended, modified or
supplemented from time to time.
"Commitments" means, collectively, the Non-Revolving
Commitment and the Revolving Commitment.
"Conversion Date" means April 1, 1997, the date on
which all previously made Non-Revolving Advances shall
automatically convert to a term loan in accordance with
Section 1.1 hereof.
"Credit Facilities" has the meaning ascribed to the
term in Section 1.2 hereof.
"Debt" means: (a) all obligations of Borrower for
borrowed money, (b) all obligations of Borrower evidenced by
bonds, notes, debentures or other similar instruments,
(c) all obligations of Borrower to pay the deferred purchase
price of property or services, except trade accounts payable
by Borrower 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
under any Capitalized Leases, (e) all obligations of
Borrower 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 any other obligations,
contingent or otherwise, (f) all obligations secured by a
Lien (except trade accounts payable by Borrower 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, whether or not the obligations secured thereby
have been assumed by Borrower or are non-recourse to the
credit of Borrower, (g) all reimbursement obligations of
Borrower, other than performance bonds of Borrower (whether
contingent or otherwise), relating to letters of credit,
bankers' acceptances and similar instruments, and (h) all
liabilities of Borrower in respect of unfunded vested
benefits under any Plan; provided, however, the term "Debt"
shall not include money borrowed by Borrower to pay premiums
on insurance policies obtained by Borrower in the ordinary
course of Borrower's business.
"Debt Service" means, for any period in question, the
sum of (a) all interest due and payable by Borrower to any
Person during such period and (b) the aggregate amount of
all principal due and payable during such period under this
Agreement and any of the other Loan Documents.
"Default Rate" has the meaning ascribed to the term
in Section 3.2 hereof.
"Eligible Receivables" shall mean, as of any date, an
amount equal to the aggregate invoice amount owing on all
trade accounts receivable of Borrower for goods sold, after
deducting each such account that is unpaid ninety (90) days
after the original invoice date thereof.
"Environmental Laws" means any and all federal, state
and local laws, regulations, ordinances, orders and require-
ments 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 or any
of its properties or assets, as such laws, regulations and
requirements may be amended or supplemented from time to
time.
"Equipment" means all machinery, equipment, furniture
and furnishings and other property described as "General
Equipment" in the Security Agreement, now or hereafter owned
by Borrower.
"Event of Default" means the occurrence of any event
described in Section 10 hereof or the occurrence of any
other event which with the lapse of time, or lapse of time
and notice to Borrower would constitute an Event of Default.
"Existing Security" means all security granted by
Borrower to Banks pursuant to the Collateral Documents and
other Loan Documents including, without limitation, the
Second Loan Agreement Security and the Third Loan Agreement
Security.
"Financing Statement" means the UCC-1 Financing
Statement referred to in Section 5.1 hereof, as such
instrument may be modified, supplemented and/or amended from
time to time.
"First Amended and Restated Loan Agreement" has the
meaning ascribed to the term in the recitals to this
Agreement.
"First NBC" has the meaning ascribed to the term in
the recitals to this Agreement.
"Fixtures" means any and all goods and other property
that, after placement on the Real Property and/or the GIFI
Property, become component parts thereof.
"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.
"Fourth Amended and Restated Loan Agreement" has the
meaning ascribed to the term in the recitals to this
Agreement.
"Fourth Loan Agreement" has the meaning ascribed to
the term in the recitals to this Agreement.
"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.
"GIF" has the meaning ascribed to the term on the
first page hereof.
"GIF Collateral Chattel Mortgages" means,
collectively, the Original GIF Collateral Chattel Mortgage
and the Second GIF Collateral Chattel Mortgage.
"GIF Collateral Mortgage" means, collectively, the
GIF Property Collateral Note, the GIF Property Collateral
Mortgage, the GIF Property Pledge Agreement and the GIF
Property First Additional Pledge Agreement referred to in
Section 5.1 hereof, as such instruments may be modified,
supplemented and/or amended from time to time.
"GIF Equipment" means all equipment and other
property described in and subject to the GIF Collateral
Chattel Mortgages.
"GIF Property" means the land, improvements and other
property described in and subject to the GIF Collateral
Mortgage and the Real Property Collateral Mortgage.
"GIFI" has the meaning ascribed to the term on the
first page hereof.
"GIFI Collateral Chattel Mortgage" means collectively
the GIFI Equipment Collateral Note, the GIFI Equipment
Collateral Chattel Mortgage and the GIFI Equipment Pledge
Agreement referred to in Section 5.1 hereof as creating a
first mortgage lien on the GIFI Equipment, as such instru-
ments may be modified, supplemented and/or amended from time
to time.
"GIFI Collateral Mortgage" means that certain Act of
Collateral Mortgage of Borrower, dated July 27, 1989, in
favor of Mortgagee and any and all future holders, recorded
in the mortgage records of Terrebonne Parish, Louisiana, in
Mortgage Book Xx. 000, xxxxx 000, xxxxx Xxxxx Xx. 000000,
which mortgage has been released by First NBC.
"GIFI Equipment" means the equipment and other
property described in and subject to the GIFI Collateral
Chattel Mortgage and the Security Agreement.
"GIFI Property" means the property heretofore subject
to the GIFI Collateral Mortgage and the property described
on Exhibit "K" hereto.
"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 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 any Interest Period which, with respect to a LIBO
Rate Advance under the Term Credit Facility, would
extend beyond the Conversion Date shall end on the
Conversion 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.
"Labordes" means, jointly, severally and solidarily,
Xxxxxxxx Xxxxxxxx, wife of/and Xxxxx X. XxXxxxx.
"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.
"Lease Assignment" has the meaning ascribed to the
term in Section 5.1 hereof.
"Letters of Credit" has the meaning ascribed to the
term in Section 1.2 hereof.
"LIBO Rate": shall mean 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) two percent
(2.00%) plus (b) the FNBC LIBO Rate.
"LIBO Rate Advance" means an Advance made under the
Revolving Credit Facility or, until the Conversion Date, the
Term 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.
"Loan Agreement" has the meaning ascribed to this
term in the recitals to this Agreement.
"Loan Documents" means collectively this Agreement,
the Notes, the GIF Collateral Mortgage, the GIF Collateral
Chattel Mortgages, the GIFI Collateral Chattel Mortgage, the
Lease Assignment, the Real Property Collateral Mortgage, the
Security Agreement, the Financing Statement and any and all
other documents, instruments and agreements executed in
connection with the Loans, as the foregoing may be modified,
supplemented and/or amended from time to time.
"Loans" means the loans under the Credit Facilities
and "Loan" means any one of the Loans.
"Net Worth" means the sum of the common stock, addi-
tional paid-in capital and retained earnings accounts of
Borrower, as shown in conformity with GAAP on its balance
sheet at the time of such determination, less the amount of
any treasury stock shown thereon and less the amount of any
intangible assets (such as patents, trademarks, copyrights
or goodwill) shown thereon.
"New GIF Equipment" means the equipment and other
property described in and subject to the Second GIF
Collateral Chattel Mortgage.
"Non-Revolving Advance" has the meaning ascribed to
the term in Section 1.1 hereof.
"Non-Revolving Commitment" means $10,000,000.
"Non-Revolving Line of Credit" has the meaning
ascribed to the term in Section 1.1 hereof.
"Notes" means, collectively, the Term Notes and the
Revolving Notes.
"Obligations" means all obligations, indebtedness and
liabilities of Borrower to Agent and/or either or both of
Banks, now existing or hereafter arising, whether direct,
indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several,
including, without limitation, the obligations,
indebtedness, and liabilities of Borrower under this
Agreement, the Notes and the other Loan Documents, and all
interest accruing thereon and all attorneys' fees and other
expenses incurred in the enforcement or collection thereof.
"Original GIF Collateral Chattel Mortgage" means
collectively the Original GIF Equipment Collateral Note, the
Original GIF Equipment Collateral Chattel Mortgage and the
Original GIF Equipment Pledge Agreement referred to in
Section 5.1 hereof as creating a first mortgage lien on the
Original GIF Equipment, as such instruments may be modified,
supplemented and/or amended from time to time.
"Original GIF Equipment" means the equipment and
other property described in and subject to the Original GIF
Collateral Chattel Mortgage and the Second GIF Collateral
Chattel Mortgage.
"Owners" means, collectively, the Labordes and the
Wilsons.
"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 7.11 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 6.10 hereof.
"Prime Rate" has the meaning ascribed to the term in
Section 3.4 hereof.
"Prime Rate Advance" means an Advance made under the
Revolving Credit Facility or, until the Conversion Date, the
Term Credit Facility which bears interest at the Prime Rate.
"Prior Notes" means, collectively, the promissory
notes executed by Borrower in favor of Banks executed
pursuant to the Fourth Loan Agreement.
"Real Property" means the property described in and
encumbered by the Real Property Collateral Mortgage.
"Real Property Collateral Mortgage" means
collectively the Real Property Collateral Note, the Real
Property Collateral Mortgage and the Property Additional
Pledge Agreement referred to in Section 5.1 hereof, as such
instruments may be modified, supplemented and/or amended
from time to time.
"Revolving Advance" has the meaning ascribed to the
term in Section 1.2 of this Agreement.
"Revolving Commitment" means the lesser of (a) TWELVE
MILLION AND NO/100 DOLLARS ($12,000,000.00) or (b) FOUR
MILLION AND NO/100 DOLLARS ($4,000,000.00) plus the
Borrowing Base at the time in question.
"Revolving Credit Facility" has the meaning ascribed
to the term in Section 1.2 of this Agreement.
"Revolving Notes" has the meaning ascribed to the
term in Section 2.2 of this Agreement.
"Second Amended and Restated Loan Agreement" has the
meaning ascribed to the term in the recitals to this
Agreement.
"Second Loan Agreement Security" has the meaning
ascribed to the term in the recitals of this Agreement.
"Second GIF Collateral Chattel Mortgage" means
collectively the Second GIF Equipment Collateral Note, the
Second GIF Equipment Collateral Chattel Mortgage and the
Second GIF Equipment Pledge Agreement referred to in Section
5.1 hereof as creating a first mortgage lien on the New GIF
Equipment and a second mortgage lien on the Original GIF
Equipment, as such instruments may be modified, supplemented
and/or amended from time to time.
"Security Agreement" means the Security Agreement
referred to in Section 5.1 hereof, as such instrument may be
modified, supplemented and/or amended from time to time.
"Solid Waste" has the meaning specified in any
applicable Environmental Law.
"Term Credit Facility" has the meaning ascribed to
the term in Section 1.1 of this Agreement.
"Term Notes" has the meaning ascribed to the term in
Section 2.1 of this Agreement.
"Term Rate" means the sum of (a) two percent (2.00%)
per annum plus (b) the "ask yield" on United States Treasury
Notes with a maturity of April, 2002 as reported in
Section C of the Wall Street Journal on March 31, 1997 (or,
if the Wall Street Journal does not report the "ask yield"
on such instruments on March 31, 1997, then the "ask yield"
on United States Treasury Notes with a maturity in the next
earlier month which is reported in the Wall Street Journal
on March 31, 1997). The Term Rate shall be determined only
once and, as determined, shall apply throughout the
remaining term of this Agreement.
"Termination Date" means December 31, 1998.
"Third Amended and Restated Loan Agreement" has the
meaning ascribed to the term in the recitals to this
Agreement.
"Third Loan Agreement" has the meaning ascribed to
the term in the recitals to this Agreement.
"Third Loan Agreement Security" has the meaning
ascribed to this term in the recitals to this Agreement.
"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 1.2 hereof.
"Whitney" has the meaning ascribed to the term in the
recitals to this Agreement.
"Wilsons" means, jointly, severally and solidarily,
Xxxxxxxx Xxxxxxxx, wife of/and Xxxx X. Xxxxxx.
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.
12.2 Financial Terms. Unless otherwise defined or the
context otherwise requires, all financial and accounting terms
shall be defined under GAAP.
12.3 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.
12.4 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, or in the
case of telegraphic notice, when delivered to the telegraph
company, charges prepaid, addressed:
If to Banks:
First National Bank of Commerce
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Mr. J. Xxxxxxx Xxxxx, Xx.
Vice President
and
Whitney National Bank
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Senior Vice President
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Jones, Walker, Waechter, Poitevent,
Carrere & Xxxxxxx
Place St. Xxxxxxx
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
If to Agent:
First National Bank of Commerce
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Mr. J. Xxxxxxx Xxxxx, Xx.
Vice President
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Jones, Walker, Waechter, Poitevent,
Carrere & Xxxxxxx
Place St. Xxxxxxx
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
If to Borrower:
Gulf Island Fabrication, Inc.
000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, President
or
Gulf Island Fabrication, Inc.
X.X. Xxx 000
Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, 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.
12.5 Expenses. Whether or not the Loans are advanced,
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.
12.6 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.
12.7 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.
12.8 Law. The Loan Documents, and each of them, shall be
contracts made under and governed by the laws of the State of
Louisiana.
12.9 Successors. This Agreement shall be binding upon
Borrower, Banks, Agent and their respective successors and
assigns, and shall inure to the benefit of Borrower, Banks and
the successors and assigns of Banks and Agent. Borrower shall
not assign its rights, obligations or duties hereunder or under
any of the Loan Documents without the prior written consent of
Banks. Banks shall give Borrower written notice of any assign-
ment of its interests hereunder to any other Person, upon which
assignment Borrower shall perform all of its respective
obligations under the Loan Documents in favor of Banks'
assignee(s) as though such assignee(s) were originally a party or
parties to this Agreement.
12.10 Amendments. No amendment or waiver of any provision
of this Agreement or consent to any departure therefrom by
Borrower, Banks or Agent shall be effective unless the same shall
be in writing and signed by Borrower, Banks and Agent and, in the
case of a waiver or consent, such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
12.11 Entire Agreement. This Agreement constitutes the en-
tire agreement between the parties and supersedes any and all
prior agreements with respect to the transactions contemplated
hereby.
12.12 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/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
BANKS:
FIRST NATIONAL BANK OF COMMERCE
By: /s/ J. Xxxxxxx Xxxxx, Xx.
------------------------------
J. Xxxxxxx Xxxxx, Xx.,
Vice President
WHITNEY NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx, Senior Vice
President
AGENT:
FIRST NATIONAL BANK OF COMMERCE
By: /s/ J. Xxxxxxx Xxxxx, Xx.
-------------------------------
J. Xxxxxxx Xxxxx, Xx.,
Vice President
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, that on this 23rd day of October, 1996, before
me, the undersigned authority, duly commissioned, qualified and
sworn within and for the State and Parish aforesaid, personally
came and appeared XXXXX X. XXXXXXX, appearing herein in his
capacity as President of Gulf Island Fabrication, Inc., to me
personally known to be the identical person whose name is
subscribed to the foregoing Fifth Amended and Restated Revolving
Credit and Term Loan Agreement, who declared and acknowledged to
me, Notary, in the presence of the undersigned competent
witnesses, that he executed the same on behalf of said
corporation with full authority of its Board of Directors, and
that the same instrument is the free act and deed of the said
corporation and was executed for the uses, purposes and benefits
therein expressed.
WITNESSES:
/s/ Witness /s/ Xxxxx X. Xxxxxxx
---------------------------- ---------------------------
XXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx, III
----------------------------
/s/ Notary Public
----------------------------------
NOTARY PUBLIC
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, that on this 24th day of October, 1996, before
me, the undersigned authority, duly commissioned, qualified and
sworn within and for the State and Parish aforesaid, personally
came and appeared J. XXXXXXX XXXXX, XX., appearing herein in his
capacity as Vice President of First National Bank of Commerce, to
me personally known to be the identical person whose name is sub-
scribed to the foregoing Fifth Amended and Restated Revolving
Credit and Term Loan Agreement, who declared and acknowledged to
me, Notary, in the presence of the undersigned competent
witnesses, that he executed the same on behalf of said national
banking association, appearing in said agreement in its
individual capacity and its capacity as Agent, with full
authority of its Board of Directors, and that the same instrument
is the free act and deed of the said national bank association
and was executed for the uses, purposes and benefits therein
expressed.
WITNESSES:
/s/ Xxxxx X. Xxxxxxxx /s/ J. Xxxxxxx Xxxxx, Xx.
------------------------- ----------------------------
J. XXXXXXX XXXXX, XX.
/s/ Xxxxxx X. Xxxxxx
-------------------------
/s/ X. Xxxxxx Lelong, Jr.
-------------------------------
NOTARY PUBLIC
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, that on this 24th day of October, 1996,
before me, the undersigned authority, duly commissioned,
qualified and sworn within and for the State and Parish
aforesaid, personally came and appeared XXXXX X. XXXXXX,
appearing herein in his capacity as Senior Vice President of
Whitney National Bank, to me personally known to be the identical
person whose name is subscribed to the foregoing Fifth Amended
and Restated Revolving Credit and Term Loan Agreement, who
declared and acknowledged to me, Notary, in the presence of the
undersigned competent witnesses, that he executed the same on
behalf of said national banking association, appearing in said
agreement in its individual capacity, with full authority of its
Board of Directors, and that the same instrument is the free act
and deed of the said national bank association and was executed
for the uses, purposes and benefits therein expressed.
WITNESSES:
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------- ----------------------------
XXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------------
/s/ X. Xxxxxx Lelong, Jr.
---------------------------------
NOTARY PUBLIC
EXHIBITS
A. First NBC's form of Application for Stand-By Letter of
Credit
B. $5,000,000.00 Term Promissory Note made payable to the order
of First NBC
C. $5,000,000.00 Term Promissory Note made payable to the order
of Xxxxxxx
X. $6,000,000.00 Revolving Promissory Note made payable to the
order of First NBC
E. $6,000,000.00 Revolving Promissory Note made payable to the
order of Xxxxxxx
X. Second Amendment to Collateral Pledge Agreement and Receipt
No. 1000760 (Possessory Collateral Security Agreement) by
and among Borrower, Banks and Agent
G. Second Amendment to Collateral Assignment of Leases and
Rents by Borrower
H. Second Amendment to Security Agreement by and among
Borrower, Banks and Agent
I. Incumbency Certificate
J. Borrower's Default and Warranty Certificate
K. GIFI Property
SCHEDULES
1. List of Borrower's Litigation
