SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is dated
and effective as of December 28, 1999 (the "Sixth Amendment"), among OMNI ENERGY
SERVICES CORP., a Louisiana corporation (the "Borrower"), AMERICAN AVIATION
L.L.C., a Missouri limited liability company ("Aviation"), OMNI ENERGY SERVICES
CANADA CORP., an Alberta, Canada corporation formerly known as Hamilton
Drill Tech Inc. ("Omni Canada"), OMNI ENERGY SERVICES-ALASKA, INC., an Alaska
corporation ("Omni Alaska"), and HIBERNIA NATIONAL BANK, a national banking
association (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower, Aviation, Omni Marine & Supply, Inc., and the
Bank have heretofore entered into an Amended and Restated Loan Agreement dated
as of January 20, 1998, as amended by First Amendment thereto dated as of
March 31, 1998, as amended by Second Amendment thereto dated as of July 31,
1998, as amended by Third Amendment thereto dated as of October 30, 1998, as
amended by Fourth Amendment thereto dated as of March 29, 1999, and as
amended by Fifth Amendment thereto dated as of September 29, 1999 (as so
amended, the "Loan Agreement"), pursuant to which the Bank established in
favor of the Borrower certain credit facilities consisting of Acquisition
Loans, Revolving Loans, Bridge Loans, and a Term Loan;
WHEREAS, subsequent to the execution of the Loan Agreement, Omni
Canada and Omni Alaska became wholly-owned subsidiaries of the Borrower, and
Omni Marine & Supply, Inc., a Louisiana corporation, was merged into the
Borrower;
WHEREAS, the Loans by the Bank to the Borrower are guaranteed, in
solido, by Aviation, Omni Canada, and Omni Alaska as the Guarantors;
WHEREAS, the indebtedness evidenced by the Bridge Note has been
paid;
WHEREAS, on July 12, 1999, the Borrower and the Bank, with the
consent of the Guarantors, agreed to reduce and did reduce the Revolving
Loan Commitment from $7,000,000.00 to $6,000,000.00;
WHEREAS, pursuant to the Fifth Amendment, the Bank (i) extended the
scheduled July 31, 1999 principal payments on all Loans to October 31, 1999
and (ii) allowed the Borrower until October 31, 1999 to remedy all financial
covenant violations;
WHEREAS, the Borrower is currently in default under the Loan Agreement
because of Borrower's failure to make scheduled principal payments. In
addition, it is anticipated that the Borrower, as of December 31, 1999, will
not be in compliance with the financial covenant requirements contained in
Section 11.9(a) (minimum EBITDA) and Section 11.9(c) (minimum working capital)
of the Loan Agreement;
WHEREAS, the Borrower, with the consent of the Guarantors, has
requested that the Lender (i) extend the maturity of the Notes from January 20,
2000 to March 31, 2000, (ii) restructure the principal payments due the Bank
under the Acquisition Note and the Term Note, and (iii) waive compliance with
certain financial covenant requirements as of December 31, 1999; and
WHEREAS, subject to the terms and conditions of the Loan Agreement, as
amended by this Sixth Amendment, the Bank is willing to honor the Borrower's
requests.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants hereinafter set forth and intending to be legally bound hereby,
agree as follows:
1. DEFINED TERMS. Capitalized terms used herein which are defined
in the Loan Agreement are used herein with such defined meanings, except as may
be expressly set forth in this Sixth Amendment.
2. DEFINED TERMS REVISION.
(a) The definitions of the term "Acquisition Note", "Term
Note", and "Revolving Note" appearing in Section 1.1 of the Loan Agreement
are hereby supplemented to include each of the Allonges to such Notes as
provided in the Sixth Amendment.
(b) The definition of the term "Termination Date"
appearing in Section 1.1 of the Loan Agreement is hereby deleted and restated
as follows:
"Termination Date" shall mean, with respect to the
Bank's Commitments the earlier to occur of (i) March
31, 2000, or (ii) the date of termination of the
Commitments pursuant to Article XIII hereof.
(c) The following definition is hereby added to the Loan
Agreement:
"Sixth Amendment" shall mean that certain Sixth
Amendment to Amended and Restated Loan Agreement
dated as of December 28, 1999 by and among the
Borrower, Aviation, Omni Canada, Omni Alaska, and the
Bank.
3. TERMINATION DATE AND PRINCIPAL PAYMENTS. Subject to the terms
and conditions of this Sixth Amendment, the Termination Date for all Loans is
as set forth in paragraph 2(b) above. The final maturity date specified in
the Notes is extended from January 20, 2000 to March 31, 2000. Further, the
amounts and dates for principal payments due under the Term Note and the
Acquisition Note shall be as set forth in an Allonge to each such Note to be
executed by Borrower. The maturity date extension also shall be set forth in
an Allonge to each of the Notes to be executed by Borrower.
4. REVISION TO ARTICLE III (ACQUISITION LOANS) OF THE LOAN
AGREEMENT. Subject to the terms and conditions of the Loan Agreement, as
amended by this Sixth Amendment, the parties agree as follows: Section 3.2.1
of the Loan Agreement, as modified by the Fifth Amendment, is hereby amended
to reflect that the final maturity of the Acquisition Note is March 31, 2000.
5. REVISION TO ARTICLE V (FEES) OF THE LOAN AGREEMENT. The
following new Section is hereby added to the Loan Agreement as Section 5.6:
SECTION 5.6. EXTENSION FEE. The Borrower shall pay to the
Bank an extension fee of $150,000.00 on the earlier to
occur of (i) March 31, 2000 or (ii) the payment in full of all
amounts due under the Notes.
6. CONFIRMATION OF COLLATERAL DOCUMENTS. All of the liens,
privileges, priorities and equities existing and to exist under and in
accordance with the terms of the Collateral Documents are hereby renewed,
extended and carried forward as security for all of the Loans and all other
debts, obligations and liabilities of the Borrower to the Bank. Further, the
Guarantors hereby confirm their solidary liability for all Loans.
7. CONDITIONS PRECEDENT. The agreements and obligation of the
Bank as set forth in this Sixth Amendment are subject to satisfaction of the
following conditions precedent:
(a) The Borrower shall have executed and delivered to the
Bank this Sixth Amendment, an Allonge to each of the Revolving Note, the
Acquisition Note, and the Term Note, and all other documents required by the
Loan Agreement, as amended by this Sixth Amendment, and the Guarantors shall
have executed and delivered to the Bank this Sixth Amendment, and all other
documents required by the Loan Agreement, as amended by this Sixth Amendment,
all in form and substance and in such number of counterparts as may be required
by the Bank;
(b) The representations, warranties, and covenants of the
Borrower and the Guarantors as set forth in the Loan Agreement, as amended by
this Sixth Amendment, or in any Related Document furnished to the Bank in
connection herewith, shall be and remain true and correct;
(c) The Bank shall have received a favorable legal opinion
of counsel to the Borrower and the Guarantors, in form, scope and substance
satisfactory to the Bank;
(d) The Bank shall have received certified resolutions of
the Borrower and the Guarantors authorizing the execution of all documents
and instruments contemplated by this Sixth Amendment;
(e) Except for Events of Default pertaining to Loan
payment and financial covenant violations as addressed in this Sixth
Amendment, no Default or Event of Default shall exist or shall result from
renewal of the Loans as provided for herein;
(f) The Borrower and the Guarantors shall have provided
the Bank with all financial statements, reports and certificates required by
the Loan Agreement, as amended by this Sixth Amendment;
(g) The Bank shall have received the articles of
incorporation and bylaws, as amended, of the Borrower and the articles of
organization, operating agreement, articles of incorporation, and bylaws, as
amended, of the Guarantors, and the Bank's counsel shall have reviewed the
foregoing documents and is satisfied with the validity, due authorization and
enforceability thereof and of all Related Documents;
(h) The Bank shall have received evidence acceptable to
the Bank and its counsel that its Encumbrances affecting the Collateral shall
have a first priority position, subject only to Permitted Encumbrances;
(i) Except as provided in (e) above, there shall have
occurred no Material Adverse Change;
(j) The Bank's due diligence and review of all financial
information provided by the Borrower and the Guarantors, and the Bank's field
audit of the Borrower's books and records, shall be satisfactory to the Bank;
(k) The Bank's receipt of a current listing of all senior
and subordinated debt of the Borrower (on a consolidated basis);
(l) The Borrower must maintain insurance acceptable to
the Bank, naming Bank as additional insured and/or loss payee, and deliver to
Bank evidence of such insurance coverages;
(m) Interest payments on all Loans must be paid current
and remain current;
(n) Advantage Capital must execute a written subordination
agreement in favor of Bank and The CIT Group/Equipment Financing, Inc., whereby
Advantage Capital subordinates all present and future indebtedness owed by
Borrower, which agreement must be delivered to, and in form and substance
satisfactory to, Bank;
(o) The Borrower must make a $450,000.00 principal payment
to Bank;
(p) All legal fees by Bank's counsel pertaining to matters
involving Borrower, including preparation of this Sixth Amendment, must be paid
by Borrower; and
(q) Advantage Capital must provide an additional
$1,000,000.00 in equity or subordinated debt to the Borrower.
8. REVISION TO ARTICLE XI (AFFIRMATIVE COVENANTS) OF THE
LOAN AGREEMENT. The parties to this Sixth Amendment acknowledge the Borrower's
anticipated failure to comply as of December 31, 1999 with the financial
covenants set forth in Section 11.9(a) and (c) of the Loan Agreement.
Subject to the terms and conditions of this Sixth Amendment, the Bank agrees to
waive Borrower's compliance as of December 31, 1999 with the financial covenant
requirements set forth in Section 11.9(a) and (c) of the Loan Agreement.
9. EXTENSION OF LOANS. The Bank agrees to extend the Termination
Date for all Loans to January 31, 2001 if the Borrower has raised additional
capital (subordinated debt or equity) of $3,000,000.00 by March 31, 2000, and
satisfactory evidence thereof has been furnished to the Bank.
10. REPRESENTATION. On and as of the date hereof, and after giving
effect to this Sixth Amendment, the Borrower and the Guarantors confirm,
reaffirm and restate the representations and warranties set forth in the
Loan Agreement and the Collateral Documents; provided, that each reference to
the Loan Agreement herein shall be deemed to include the Loan Agreement as
amended by this Sixth Amendment.
11. PAYMENT OF EXPENSES. The Borrower agrees to pay or reimburse
the Bank for all legal fees and expenses of counsel to the Bank in connection
with the transactions contemplated by this Sixth Amendment.
12. WAIVER OF DEFENSES; RELEASE OF LIABILITIES. THE BORROWER AND
THE GUARANTORS ACKNOWLEDGE THAT THIS SIXTH AMENDMENT CONTAINS A RENEWAL OF THE
LOANS, AN EXTENSION OF PAYMENTS, AND A FORBEARANCE BY THE BANK. IN
CONSIDERATION OF THE BANK'S EXECUTION OF THIS SIXTH AMENDMENT, THE BORROWER
AND THE GUARANTORS DO HEREBY IRREVOCABLY WAIVE ANY AND ALL CLAIMS, CAUSES OF
ACTION, AND/OR DEFENSES TO PAYMENT ON ANY INDEBTEDNESS OWED BY ANY OF THEM TO
THE BANK THAT MAY EXIST AS OF THE DATE OF EXECUTION OF THIS SIXTH AMENDMENT.
FURTHER, BORROWER AND THE GUARANTORS HEREBY AGREE THAT ALL DISPUTES AND CLAIMS
WHATSOEVER OF ANY KIND OR NATURE WHICH BORROWER AND/OR ANY OF THE GUARANTORS
PRESENTLY HAS OR MAY HAVE AGAINST BANK, WHETHER PRESENTLY KNOWN OR UNKNOWN,
WHICH BORROWER AND/OR ANY OF THE GUARANTORS COULD HAVE ASSERTED AGAINST BANK,
ARE FULLY AND FINALLY RELEASED, COMPROMISED AND SETTLED. BORROWER AND THE
GUARANTORS, INDIVIDUALLY AND FOR THEMSELVES, THEIR, SUCCESSORS IN INTEREST
AND ASSIGNS, DO HEREBY EXPRESSLY RELEASE AND FOREVER RELIEVE, DISCHARGE AND
GRANT FULL ACQUITTANCE TO BANK FOR AND FROM ANY AND ALL CAUSES OF ACTION,
SUITS, CLAIMS, DEBTS, OBLIGATIONS OR LIABILITIES OF ANY NATURE WHATSOEVER,
KNOWN OR UNKNOWN, ALLEGED OR NOT ALLEGED, WHICH BORROWER AND/OR ANY OF THE
GUARANTORS HAS OR MAY HAVE AGAINST BANK, ITS AGENTS, OFFICERS, EMPLOYEES,
DIRECTORS AND SHAREHOLDERS AS OF THE DATE HEREOF. THIS WAIVER AND RELEASE
SHALL BE CONSTRUED TO HAVE THE BROADEST POSSIBLE SCOPE.
13. AMENDMENTS. THE LOAN AGREEMENT AND THIS SIXTH AMENDMENT ARE
CREDIT OR LOAN AGREEMENTS AS DESCRIBED IN LA. R.S.6: SECTION 1121, ET SEQ.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE BANK, THE BORROWER, OMNI ALASKA,
AVIATION, AND OMNI CANADA. THE LOAN AGREEMENT, AS AMENDED BY THIS SIXTH
AMENDMENT, SETS FORTH THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR WRITTEN AND ORAL
UNDERSTANDINGS BETWEEN THE BORROWER, AVIATION, OMNI ALASKA, OMNI CANADA AND
THE BANK, WITH RESPECT TO THE MATTERS HEREIN SET FORTH. THE LOAN AGREEMENT,
AS AMENDED BY THIS SIXTH AMENDMENT, MAY NOT BE MODIFIED OR AMENDED EXCEPT BY
A WRITING SIGNED AND DELIVERED BY THE BORROWER, AVIATION, OMNI ALASKA,
OMNI CANADA AND THE BANK.
14. GOVERNING LAW: COUNTERPARTS. This Sixth Amendment shall be
governed by and construed in accordance with the laws of the State of
Louisiana. This Sixth Amendment may be executed in any number of counterparts,
all of which counterparts, when taken together, shall constitute one and the
same instrument.
15. CONTINUED EFFECT. Except as expressly modified herein, the
Loan Agreement shall continue in full force and effect. The Loan Agreement
as amended by this Sixth Amendment is hereby ratified and confirmed by the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to be executed and delivered as of the date hereinabove provided
by the authorized officers each hereunto duly authorized.
OMNI ENERGY SERVICES CORP.
By:_______________________________
Name: John H. Untereker
Title: President, Chief
Executive Officer
AMERICAN AVIATION L.L.C.
By: Omni Energy Services Corp.,
as Sole Member
By:________________________________
Name: John H. Untereker
Title: President, Chief
Executive Officer
OMNI ENERGY SERVICES CANADA CORP.
(f/k/a HAMILTON DRILL TECH INC.)
By:________________________________
Name: John H. Untereker
Title: Treasurer
OMNI ENERGY SERVICES- ALASKA, INC.
By:________________________________
Name: John H. Untereker
Title: Treasurer
HIBERNIA NATIONAL BANK
By:________________________________
Name: Tammy M. Angelety
Title: Vice President