THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is dated
and effective as of October 30, 1998 (the "Third Amendment"), among OMNI
ENERGY SERVICES CORP., a Louisiana corporation (the "Borrower"), American
Aviation L.L.C., a Missouri limited liability company ("Aviation"), Omni
Marine & Supply, Inc., a Louisiana corporation ("Marine"), Hamilton Drill
Tech Inc., an Alberta, Canada corporation ("Hamilton"), 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, Marine, 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, and
as amended by Second Amendment thereto dated as of July 31, 1998 (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, and a Term Loan;
WHEREAS, subsequent to the execution of the Loan Agreement, Hamilton
and Omni Alaska became wholly-owned subsidiaries of the Borrower;
WHEREAS, the Loans by the Bank to the Borrower are guaranteed, in
solido, by Aviation, Marine, and Hamilton as the Guarantors;
WHEREAS, pursuant to this Third Amendment the Loans by the Bank to the
Borrower will be guaranteed, in solido, by Omni Alaska;
WHEREAS, the Borrower, with the consent of the Guarantors, has
requested that Lender extend a temporary non-revolving line of credit to
the Borrower, the proceeds of which will be used by the Borrower to finance
certain acquisitions by the Borrower and to finance an investment in a
foreign joint venture; and
WHEREAS, subject to the terms and conditions of the Loan Agreement, as
amended by this Third Amendment, the Bank is willing to extend a temporary
non-revolving line of credit to the Borrower.
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 Third Amendment.
2. DEFINED TERMS REVISION.
(a) The definition of the term "Borrowing Base Amount" appearing
in Section 1.1 on page 3 of the Loan Agreement, as restated by the Second
Amendment thereto, is hereby deleted and restated as follows:
"BORROWING BASE AMOUNT" shall mean: (a) for the
Revolving Loan Commitment, at any time, based upon
the most recent timely submitted borrowing base
certificate submitted by or on behalf of the
Borrower (but not less than on a weekly basis), as
the same may be adjusted by the Bank on a daily
basis upon review of the Borrower's sales journals
and cash receipts and as a result of field
examinations of the Collateral (using reasonable
lending discretion), the lesser of (i)
$10,000,000.00 or (ii) the sum of (x) the amount
of Qualified Receivables at such time and (y)
advances, using reasonable lending discretion and
up to the sublimit (in the aggregate) of
$5,000,000.00, to finance the Borrower's
acquisition of Eligible Parts and Supplies, which
advances are limited to a loan to value ratio of
50%; (b) for the Acquisition Loan Commitment, the
lesser of (i) $9,000,000.00 or (ii) advances for
acquisitions of entities by the Borrower are
limited to an earnings multiple of less than or
equal to 5x projected EBITDA of the entity to be
acquired (based upon the Borrower's current
dayrates or contracts) and advances for capital
expenditures are limited to a loan to value ratio
of 75% for geophysical equipment and 80% for
aviation equipment. Further, for the Acquisition
Loan Commitment, advances to finance the purchase
of geophysical equipment are subject to a sublimit
(in the aggregate) of $4,000,000.00; or (c) for
the Bridge Line Commitment, (i) the lesser of
$6,639,200.00 or (ii) the sum of (x) advances to
the Borrower (or its wholly owned foreign
subsidiaries) for investment in any Bank approved
foreign joint venture shall be limited to a total
aggregate amount of $4,750,000.00, (y) advances
for acquisitions of entities by the Borrower are
limited to an earnings multiple of less than or
equal to 5x projected EBITDA of the entity to be
acquired (based upon the Borrower's current
dayrates or contracts), and (z) advances to
finance the purchase by the Borrower of the real
estate and improvements owned by David Jeansonne
(or an entity controlled by him) located at 4484
N.E. Evangeline Thruway, Carencro, Louisiana
70520, shall be limited to 80% of the current
appraised fair market value of said real estate
and improvements.
(b) The definition of the term "Commitments" appearing in
Section 1.1 on page 4 of the Loan Agreement is hereby deleted and restated
as follows:
"COMMITMENTS" shall mean, collectively, the
Revolving Loan Commitment, the Acquisition Loan
Commitment, the Term Loan Commitment, and the
Bridge Loan Commitment.
(c) The definition of the term "Guarantor" appearing in Section
1.1 on page 6 of the Loan Agreement, as restated by the Second Amendment
thereto, is hereby deleted and restated as follows:
"GUARANTOR" shall mean individually,
interchangeably, and collectively, Omni Marine &
Supply, Inc., a Louisiana corporation, and its
successors and assigns, American Aviation L.L.C.,
a Missouri limited liability company, and its
successors and assigns, and Hamilton Drill Tech
Inc., an Alberta corporation, and its successors
and assigns, Omni Energy Services Alaska, an
Alaska corporation, and its successors and
assigns, and any wholly-owned Subsidiary of
Borrower that the Borrower currently has or may
hereafter acquire.
(d) The definition of the term "Guaranty" appearing in Section
1.1 on page 6 of the Loan Agreement, as restated by the Second Amendment,
is hereby deleted and restated as follows:
"GUARANTY" shall mean, collectively, that certain
Commercial Guaranty dated January 20, 1998 by
Aviation in favor of the Bank, that certain
Commercial Guaranty dated January 20, 1998 by Omni
Marine in favor of the Bank, and that certain
Commercial Guaranty dated May 19, 1998 by Hamilton
in favor of the Bank, and that certain Commercial
Guaranty by Omni Alaska dated October 30, 1998 in
favor of the Bank.
(e) The definition of the term "Loans" appearing in Section 1.1
on page 7 of the Loan Agreement is hereby deleted and restated as follows:
"LOANS" shall mean, collectively, the Revolving
Loans, the Acquisition Loans, the Term Loan, and
the Bridge Loans.
(f) The definition of the term "Notes" appearing in Section 1.1
on page 8 of the Loan Agreement is hereby deleted and restated as follows:
"NOTES" shall mean, collectively, the Revolving
Note, the Acquisition Note, the Term Note, and the
Bridge Note, as each of them may be renewed or
extended, together with all other promissory note
or notes given in renewal, substitution, or as a
refinancing of any part of the indebtedness
evidenced thereby.
(g) The definition of "Request for Advance" appearing in Section
1.1 on page 9 of the Loan Agreement is hereby deleted and restated as
follows:
"REQUEST FOR ADVANCE" shall mean the Borrower's
request for an Acquisition Loan, a Revolving Loan,
or a Bridge Loan, as the case may be.
(h) The definition of the term "Security Agreements" appearing
in Section 1.1 on pages 9-10 of the Loan Agreement (as specifically amended
by the Second Amendment) is hereby deleted and restated as follows:
"SECURITY AGREEMENTS" shall mean (i) that certain
Commercial Security Agreement dated July 19, 1996,
by Omni Geophysical in favor of the Bank, as
amended by First Amendment thereto dated as of
June 13, 1997, by Second Amendment thereto dated
as of August 6, 1997, by Third Amendment thereto
dated as of September 30, 1997, by Fourth
Amendment thereto dated as of November 21, 1997,
and by Fifth Amendment thereto dated as of January
20, 1998, affecting all of the properties
described therein, (ii) that certain Security
Agreement (Fixtures) by Omni Geophysical dated as
of June 13, 1997 in favor of the Bank, as amended
by First Amendment thereto dated as of January 20,
1998, (iii) that certain Aircraft Security
Agreement by Aviation dated August 6, 1997 in
favor of the Bank, as amended by First Amendment
thereto dated as of December 29, 1997, and by
Second Amendment thereto dated as of January 20,
1998, (iv) that certain Commercial Security
Agreement dated August 6, 1997 by Aviation in
favor of the Bank, as amended by First Amendment
thereto dated as of January 20, 1998, (v) that
certain Commercial Security Agreement by the
Borrower in favor of the Bank dated as of January
20, 1998, (vi) that certain Commercial Security
Agreement by Omni Marine dated as of January 20,
1998 in favor of the Bank, (vii) that certain
Commercial Security Agreement by Hamilton dated as
of May 19, 1998 in favor of the Bank, (viii) that
certain Aircraft Security Agreement dated March
12, 1998 by the Borrower in favor of the Bank,
(ix) that certain Aircraft Security Agreement
dated June 4, 1998 by the Borrower in favor of the
Bank, (x) that certain Aircraft Security Agreement
dated June 29, 1998 by the Borrower in favor of
the Bank, (xi) that certain Aircraft Security
Agreement dated October 1, 1998 by the Borrower in
favor of the Bank, (xii) that certain Commercial
Security Agreement dated October 30, 1998 by Omni
Alaska in favor of the Bank, (xiii) all security
agreements granted prior to the date of the Third
Amendment by the Borrower, the Guarantors (or any
of them), and/or any other Person as security for
the Indebtedness, (xiv) all UCC-1 financing
statements, and related documents required by the
Bank in connection with any of the foregoing, (xv)
all amendments or modifications to any of the
foregoing, and (xvi) all additional security
agreements hereafter granted by any Person as
security for the Indebtedness, together with any
and all amendments or modifications to any of the
foregoing, including, if executed, the
documentation necessary to create the security
interests referred to in paragraph 9 of the Second
Amendment.
(i) The following definitions are hereby added to Section 1.1 of
the Loan Agreement:
"BRIDGE LINE COMMITMENT" means the agreement by
the Bank to the Borrower to make Bridge Loans in
accordance with the provisions of paragraph 3 of
the Third Amendment.
"BRIDGE LINE" shall have the meaning assigned to
that term in paragraph 3(a) of the Third
Amendment.
"BRIDGE NOTE" shall have the meaning assigned to
that term in paragraph 3(b) of the Third
Amendment.
"OMNI ALASKA" shall mean Omni Energy Services-
Alaska, Inc., an Alaska corporation, and its
successors and assigns.
"SECOND AMENDMENT" shall mean that certain Second
Amendment to Amended and Restated Loan Agreement
dated as of July 31, 1998 by and among the
Borrower, Aviation, Omni Marine, Hamilton, and the
Bank.
"THIRD AMENDMENT" shall mean that certain Third
Amendment to Amended and Restated Loan Agreement
dated as of October 30, 1998 by and among the
Borrower, Aviation, Omni Marine, Hamilton, Omni
Alaska, and the Bank.
3. THE BRIDGE LINE COMMITMENT. The Loan Agreement is hereby amended
and supplemented to include the following new provisions:
(a) BRIDGE LINE. Subject to the terms and conditions
of this Agreement, as amended by the Third
Amendment, the Bank agrees to make a temporary
non-revolving loan to the Borrower in a maximum
aggregate principal amount of $6,639,200.00 (the
"Bridge Line"); provided, however, (a) advances
under the Bridge Line Commitment are subject to
sublimits and loan availability limits, all as set
forth in the definition of Borrowing Base Amount
applicable to the Bridge Line Commitment, and
(b) that at no time shall the sum of the aggregate
principal amount of Bridge Loans to the Borrower
at such time outstanding exceed the Borrowing Base
Amount then in effect. In the event, at any time,
and from time to time, the sum of all outstanding
Bridge Loans issued and outstanding to the
Borrower exceeds the Borrowing Base Amount then in
effect, the Borrower shall repay the Bridge Loans
by such an amount to cause the sum of the Bridge
Loans outstanding to Borrower to equal the
Borrower Base Amount (or, at the option of the
Bank, the Borrower may post cash collateral to
secure such deficiency in the Borrower Base
Amount). Advances by the Bank under the Bridge
Line shall be used exclusively by the Borrower
(i) to finance any investment by the Borrower (or
its wholly-owned foreign subsidiaries) in any Bank
approved foreign joint venture, (ii) to finance
the Borrower's acquisition of 100% of the stock of
an entity or entities, and (iii) to finance the
Borrower's acquisition of certain real estate and
improvements from David Jeansonne (or an entity
controlled by him), which real estate and
improvements are located at 4484 N.E. Evangeline
Thruway, Carencro, Louisiana 70520; provided,
however, the availability of funds under the
Bridge Line to finance investments described in
clause (i) above shall be subject to a sublimit
(in the aggregate) of $4,750,000.00. The Bank
hereby agrees that the Borrower's capitalization
of Omni International and Omni International's
participation in Omni South America are Bank
approved foreign joint ventures. Notwithstanding
any provision in this Agreement, as amended by the
Third Amendment, to the contrary, it is agreed and
understood that any and all advances by the Bank
under the Bridge Line shall be subject to review
of all documentation requested by Bank and any
such advance shall be at the Bank's sole
discretion.
(b) Bridge Note. The indebtedness to the Bank under
the Bridge Line shall be evidenced by a promissory
note made by the Borrower (the "Bridge Note"),
dated of even date with the Third Amendment,
payable to the order of the Bank in the maximum
aggregate principal sum of $6,639,200.00, and
bearing interest at the LIBOR Rate plus the
Applicable Margin. The indebtedness of the
Borrower under the Bridge Note shall be payable as
follows: interest shall be payable quarterly and
at the maturity of the Bridge Note, as therein
provided; and principal and accrued unpaid
interest shall be due and payable 180 days from
the closing of the Bridge Line. Upon the
occurrence of an Event of Default or in the event
the indebtedness evidenced by the Bridge Note is
not paid in full on or before its maturity date,
then the Bank has the right prospectively to
adjust the interest rate under the Bridge Note
until it is paid in full as follows: the LIBOR
Rate plus the Applicable Margin plus additional
increases to the Applicable Margin calculated as
follows:
DAYS OUTSTANDING
181 - 210 days .50%
211 - 270 days .50%
271 - 330 days .50%
(c) Bridge Loans. For each requested Bridge Loan by
the Borrower, the Borrower shall provide the Bank
with a Request for Advance and all other
documentation requested by the Bank. The
procedures set forth in Section 3.2.2 of the
Agreement regarding manner and notice of borrowing
under the Acquisition Loan Commitment shall also
apply to the Bridge Line Commitment. In addition,
the provisions of Section 3.2.6 of the Agreement
pertaining to overlines and overadvances shall
also apply to the Bridge Line and the Bridge Note,
it being understood however, that $6,639,200.00 is
the maximum possible Borrowing Base Amount for the
Bridge Line Commitment.
(d) Conditions Precedent for Bridge Loans. The
conditional obligation of the Bank to make a
Bridge Loan shall be subject to the satisfaction
and continued satisfaction, in the Bank's sole
discretion, of the following conditions precedent:
(i) The conditions precedent specified in Section
9.1 of this Agreement;
(ii) The Borrower and the Guarantors shall have
executed the Third Amendment, and the
Borrower shall have executed the Bridge Note;
(iii) For a Bridge Loan pertaining to the
Borrower's investment in Omni International
and/or Omni International's investment in
Omni South America, the Bank's receipt of the
opening balance sheet of the Bolivian joint
venture detailed in the June 12, 1998 letter
of intent endorsed by Edwin Waldman Attie and
Roger Thomas;
(iv) The Bank's receipt of acceptable evidence
that any acquisitions, mergers or joint
ventures relating to the underlying Bridge
Loan have occurred (or will occur
contemporaneously with the funding of such
Bridge Loan);
(v) The Bank's satisfaction that the financing
complies with all applicable laws and
regulations and contractual obligations
deemed appropriate by the Bank;
(vi) The corporate, capital, legal, and
organizational documents of the Borrower
shall be satisfactory to the Bank;
(vii) For a Bridge Loan pertaining to the
Borrower's investment in Omni International
and/or Omni International's investment in
Omni South America, the Bank's receipt of the
first priority security interest and opinion
letter described in paragraph (9) of the
Second Amendment, in form and substance
satisfactory to the Bank and its counsel;
(viii) For a Bridge Loan pertaining to the
Borrower's investment in Omni International
and/or Omni International's investment in
Omni South America, deliver to the Bank a
photocopy of the signed joint venture
agreement;
(ix) For a Bridge Loan pertaining to the
Borrower's investment in Omni International
and Omni International's investment in Omni
South America, deliver reasonably
satisfactory evidence to the Bank that Omni
International, Omni South America, and the
Bolivian joint venture referenced in (d)(iii)
above are adequately insured with insurance
companies in such amounts and against such
risks as is usually carried by owners of
similar businesses and properties;
(x) For a Bridge Loan pertaining to the
Borrower's purchase of the real estate and
improvements located at 4484 N.E.Evangeline
Thruway, Carencro, Louisiana, the Borrower
will comply with all normal and customary
real estate requirements of the Bank,
including a current appraisal, all at
Borrower's expense;
(xi) For a Bridge Loan pertaining to acquisitions,
the Borrower agrees to provide Bank a first
priority security interest on all assets
acquired by Borrower with proceeds from the
Bridge Loan and/or for stock acquisitions, a
first priority security interest on all
assets of the new Subsidiary; and
(xii) The execution and delivery to Bank of the
Guaranty by Omni Alaska and the Commercial
Security Agreement dated October 30, 1998
(and the related financing statement), by
Omni Alaska in favor of the Bank.
(e) Fees. The nonrefundable commitment fee payable by
the Borrower to the Bank for the Bridge Line
Commitment shall be 1% of $6,639,200.00 payable by
the Borrower on or before its execution of the
Third Amendment. In addition, the Borrower shall
pay to the Bank a fee equal to 0.38% per annum on
the unused portion of the Bridge Line Commitment,
payable quarterly in arrears, commencing on
January 30, 1999.
4. 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, including
any and all Bridge Loans. The parties acknowledge that the Loans are
guaranteed in solido, by Omni Alaska pursuant to that certain Commercial
Guaranty dated October 30, 1998. In addition, the parties acknowledge that
the Loans are secured by that certain Commercial Security Agreement dated
October 30, 1998 by Omni Alaska. Further, the Guarantors hereby confirm
their solidary liability for all Loans, including any and all Bridge Loans.
In addition, pursuant to the Security Agreements, the Borrower and the
Guarantors agree and acknowledge that any Bridge Loan by the Bank to the
Borrower shall be secured by the Collateral Documents. Further, each of
the Guarantors does hereby acknowledge and agree that its obligations under
its Guaranty includes the indebtedness of the Borrower under the Bridge
Line as evidenced by the Bridge Note.
5. Revision to Article XI of the Loan Agreement.
Addition of Section 11.20. The Loan Agreement is hereby amended
and supplemented to include the following new affirmative covenants as
Sections 11.20 and 11.21:
Section 11.20. Foreign Ventures. The Borrower
agrees that its equity interest and/or the equity
interest of any Subsidiary and/or Omni
International in any foreign venture shall be not
less than 80%. In addition, the Borrower agrees
that either the Borrower or a Subsidiary of the
Borrower shall have voting control of the board of
directors of any entity formed by the Borrower or
its Subsidiary to participate in a Bank approved
foreign joint venture.
Section 11.21. Bolivian Joint Venture. The
Borrower agrees that all accounts receivable paid
to the Bolivian joint venture participated in by
Omni South America shall be paid in U.S. currency
and that the customers of the said joint venture
shall be publicly traded, rated entities and other
customers acceptable to the Bank.
6. Revision to Article XII of the Loan Agreement.
Revision to Section 12.6(g). Section 12.6(g) of the Loan
Agreement, which was added by the Second Amendment thereto, is hereby
deleted and restated as follows:
(g) Cash investment in Omni International and/or
in any Bank approved foreign joint venture in
an amount not to exceed $4,750,000 (in the
aggregate). In addition, the total
investment (cash, stock, equipment) in any
Bank approved foreign joint venture shall not
exceed $7,000,000.00 (in the aggregate).
7. Funding of Bank Approved Foreign Joint Ventures. The Borrower
and the Guarantors agree and understand that to the extent any of the
Bank's Commitments allow Loans for investment in foreign joint ventures,
including any capitalization by the Borrower of Omni International, that
the total aggregate amount of all such Loans by the Bank shall not exceed
$4,750,000.00, notwithstanding any provision in the Loan Agreement to the
contrary.
8. Representation: No Default. On and as of the effective date
hereof, and after giving effect to this Third 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 Third Amendment. The
Borrower and the Guarantors also represent and warrant that no Default or
Event of Default has occurred and is continuing under the Loan Agreement.
9. 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 Third Amendment.
10. Waiver of Defenses. In consideration of the Bank's execution of
this Third Amendment, the Borrower and the Guarantors do hereby irrevocably
waive any and all claims 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 Third Amendment.
11. Amendments. THE LOAN AGREEMENT AND THIS THIRD 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, MARINE,
AVIATION, AND HAMILTON. THE LOAN AGREEMENT, AS AMENDED BY THIS THIRD
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, MARINE, HAMILTON AND THE
BANK, WITH RESPECT TO THE MATTERS HEREIN SET FORTH. THE LOAN AGREEMENT, AS
AMENDED BY THIS THIRD AMENDMENT, MAY NOT BE MODIFIED OR AMENDED EXCEPT BY A
WRITING SIGNED AND DELIVERED BY THE BORROWER, AVIATION, MARINE, OMNI
ALASKA, HAMILTON AND THE BANK.
12. Governing Law: Counterparts. This Third Amendment shall be
governed by and construed in accordance with the laws of the State of
Louisiana. This Third Amendment may be executed in any number of
counterparts, all of which counterparts, when taken together, shall
constitute one and the same instrument.
13. Continued Effect. Except as expressly modified herein, the Loan
Agreement shall continue in full force and effect. The Loan Agreement as
amended herein is hereby ratified and confirmed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
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: /s/ JOHN H. UNTEREKER
------------------------
John H. Untereker
AMERICAN AVIATION L.L.C.
By: Omni Energy Services Corp.,
as Sole Member
By: /s/ JOHN H. UNTEREKER
------------------------
John H. Untereker
OMNI MARINE & SUPPLY, INC.
By: /s/ ALLEN WOODARD
---------------------
Allen Woodward
HAMILTON DRILL TECH INC.
By: /s/ ROGER E. THOMAS
---------------------
Roger E. Thomas
OMNI ENERGY SERVICES- ALASKA, Inc.
By: /s/ ROGER E. THOMAS
-----------------------
Roger E. Thomas
HIBERNIA NATIONAL BANK
By: /s/ TAMMY M. ANGELETY
___________________________________
Name: Tammy M. Angelety
Title: Assistant Vice President