SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is dated
and effective as of July 31, 1998 (the "Second 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 ("Xxxxxxxx"), 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 (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, Xxxxxxxx
became a wholly-owned subsidiary of the Borrower;
WHEREAS, the Loans by the Bank to the Borrower are guaranteed, IN
SOLIDO, by Aviation, Marine, and Xxxxxxxx as the Guarantors;
WHEREAS, the parties desire to amend and supplement the Loan Agreement
to allow Revolving Loans by the Bank to the Borrower under the Revolving
Loan Commitment to finance the Borrower's acquisition of parts and
supplies;
WHEREAS, the Borrower, with the consent of the Guarantors, has
requested that the Bank make Revolving Loans to the Borrower, the proceeds
of which shall be used by the Borrower to capitalize Omni International
Energy Services, Ltd., a Cayman Islands corporation, and said corporation's
participation in a foreign joint venture; and
WHEREAS, subject to the terms and conditions of the Loan Agreement, as
amended by this Second Amendment, the Bank is willing to make the Revolving
Loan(s) mentioned in the preceding paragraph.
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.
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 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%; or (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.
(b) The definition of the term "Guarantor" appearing in Section
1.1 on page 6 of the Loan Agreement 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 Xxxxxxxx Drill Tech
Inc., an Alberta corporation, and its successors
and assigns, and any wholly-owned Subsidiary of
Borrower that the Borrower may hereafter acquire.
(c) The definition of the term "Guaranty" appearing in Section
1.1 on page 6 of the Loan Agreement 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 Xxxxxxxx
in favor of the Bank.
(d) The definition of the term "Security Agreements" appearing
in Section 1.1 on pages 9-10 of the Loan Agreement 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) the Aircraft Security Agreement, as
amended by First Amendment thereto dated as of
December 29, 1997, and by Second Amendment thereto
dated as of January 20, 1998, (iv) 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) Commercial Security Agreement by the Borrower
in favor of the Bank dated as of January 20, 1998,
(vi) Commercial Security Agreement by Omni Marine
dated as of January 20, 1998 in favor of the Bank,
(vii) Commercial Security Agreement by Xxxxxxxx
dated as of May 19, 1998 in favor of the Bank,
(viii) all UCC-1 financing statements, and related
documents required by the Bank in connection with
any of the foregoing, (ix) all amendments or
modifications to any of the foregoing, and (x) 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.
(e) The definition of the term "Subsidiaries" appearing in
Section 1.1 on page 10 of the Loan Agreement is hereby deleted and restated
as follows:
"SUBSIDIARIES" shall mean at any date with respect
to any Person all the corporations of which such
Person at such date, directly or indirectly, owns
50% or more of the outstanding capital stock
(excluding directors' qualifying shares), and
"SUBSIDIARY" means any one of the Subsidiaries;
PROVIDED, HOWEVER, the terms Subsidiary and
Subsidiaries shall not include Omni International
and Omni South America.
(f) The following definitions are hereby added to Section 1.1 of
the Loan Agreement:
"ELIGIBLE PARTS AND SUPPLIES" shall mean that
portion of the Borrower's equipment consisting of
Parts and Supplies in which Bank has a first
priority security interest.
"XXXXXXXX" shall mean Xxxxxxxx Drill Tech Inc., an
Alberta corporation, together with its successors
and assigns.
"OMNI INTERNATIONAL" shall mean Omni International
Energy Services, Ltd., a Cayman Islands
corporation, and its successors and assigns.
"OMNI SOUTH AMERICA" shall mean Omni International
Energy Services-South America, Ltd., a Cayman
Islands corporation, and its successors and
assigns.
"PARTS AND SUPPLIES" shall mean all parts and
supplies purchased by Borrower for use with or
integration into Borrower's equipment, of whatever
kind. For example, all replacement parts and
supplies for Borrower's xxxxx and/or swamp buggies
shall constitute Parts and Supplies.
3. REVISIONS TO AFFIRMATIVE COVENANTS.
(a) Section 11.1(f) of the Loan Agreement is hereby deleted and
restated as follows:
(f) within fifteen (15) days following the end of
each calendar month, (i) an aging of each the
Borrower's and the Guarantor's Receivables and
accounts payable, together with a certificate
executed by the chief financial officer(s) of the
Borrower and the Guarantor, identifying the amount
of Qualified Receivables as of the end of such
month, in such form and containing such
representations and warranties regarding the
Receivables as the Bank may reasonably require and
(ii) a collateral schedule identifying the
Borrower's Eligible Parts and Supplies and
itemizing the quantity, cost and extended value of
such Eligible Parts and Supplies, certified by the
Borrower's chief financial officer, and containing
such representations and warranties as the Bank
may reasonably require.
(b) Article XI of the Loan Agreement is hereby amended and
supplemented to include the following new covenant as Section 11.19:
SECTION 11.19. The Borrower agrees that it shall
cause Omni International and Omni South America to
maintain at all times their respective registers
of shareholders at a location in the Cayman
Islands.
4. REVOLVING LOANS FOR ELIGIBLE PARTS AND SUPPLIES. Subject to the
terms and conditions of the Loan Agreement, as amended by this Second
Amendment, the Bank agrees to make Revolving Loans to the Borrower up to
the applicable Borrowing Base Amount and sublimit then in effect to finance
the Borrower's acquisition of Eligible Parts and Supplies. For each such
requested Revolving Loan by the Borrower, the Borrower shall provide the
Bank with a Request for Advance together with a copy of the invoice for the
Parts and Supplies to be purchased by the Borrower. The Bank reserves the
right (i) to verify and revise, if necessary, the Borrower's computation of
the applicable Borrowing Base Amount and sublimit then in effect and (ii)
to reject, using reasonable lending discretion, any such Request for
Advance. The Bank agrees that its reasonable lending discretion will be
exercised in a manner similar to the Bank's review and verification of
Qualified Receivables.
5. REVOLVING LOANS FOR INVESTMENT IN OMNI INTERNATIONAL ENERGY
SERVICES, LTD. Subject to the terms and conditions of the Loan Agreement,
as amended by this Second Amendment, the Bank agrees to make Revolving
Loans to the Borrower in an amount not to exceed $4,200,000.00 (in the
aggregate), the proceeds of which shall be used by the Borrower to
capitalize Omni International and/or Omni International's participation in
a foreign joint venture; PROVIDED, HOWEVER, it is agreed and understood
that the availability of such Revolving Loans shall be subject to the
Borrowing Base Amount as determined by Qualified Receivables. For each
such requested Revolving Loan, the Borrower shall provide the Bank with a
Request for Advance. The Bank reserves the right to verify and revise, if
necessary, the Borrower's computation of the amount available for advances
under the applicable Borrowing Base Amount then in effect, subject to the
sublimit. Further, the Bank shall not be obligated to make any such
Revolving Loan for the purposes described in this paragraph 5 unless and
until all applicable conditions precedent are satisfied, including the
conditions specified in the last two sentences of paragraph 9.
6. REVISION TO USE OF PROCEEDS. Section 2.2.7 of the Loan Agreement
is hereby amended and supplemented to permit the use of proceeds from
Revolving Loans pursuant to paragraphs 4 and 5 above.
7. REVISION TO NEGATIVE COVENANTS. Section 12.6 of the Loan
Agreement is hereby amended and supplemented to include the following as
subparagraph (g) of Section 12.6:
(g) Investment in Omni International and/or in a
foreign joint venture participated in by Omni
International, in an amount not to exceed
$4,200,000.00 (in the aggregate).
8. REPRESENTATION: NO DEFAULT. Pursuant to the Security
Agreements, the Borrower and the Guarantors agree and acknowledge that any
Revolving Loan by the Bank to the Borrower to finance the acquisition of
Eligible Parts and Supplies shall be secured, among other Collateral, by a
first ranking security interest affecting such Eligible Parts and Supplies
in favor of the Bank. Further, on and as of the effective date hereof, and
after giving effect to this Second 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 Second 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. 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. In
addition, the parties acknowledge that the Loans are guaranteed IN SOLIDO
by Xxxxxxxx pursuant to that certain Commercial Guaranty dated as of May
19, 1998 by Xxxxxxxx in favor of the Bank. Further, in the event the Bank
makes a Revolving Loan(s) to the Borrower (pursuant to a Request(s) for
Advance by the Borrower) as set forth in paragraph 5 above, then the Loans
shall also be secured by a first priority security interest affecting not
less than 65% of all outstanding stock issued by Omni International,
granted by the Borrower to the Lender, all in form and substance
satisfactory to the Bank and its counsel. In addition, the Borrower agrees
to provide the Bank with an opinion of Borrower's counsel regarding the
first priority security interest affecting not less than 65% of all
outstanding stock issued by Omni International, in form and substance
satisfactory to the Bank and its counsel.
10. 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 Second Amendment.
11. WAIVER OF DEFENSES. In consideration of the Bank's execution of
this Second 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 Second Amendment.
12. AMENDMENTS. THE LOAN AGREEMENT AND THIS SECOND AMENDMENT ARE
CREDIT OR LOAN AGREEMENTS AS DESCRIBED IN LA. R.S. 6:1121, ET SEQ.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE BANK, THE BORROWER, MARINE,
AVIATION, AND XXXXXXXX. THE LOAN AGREEMENT, AS AMENDED BY THIS SECOND
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, XXXXXXXX AND THE
BANK, WITH RESPECT TO THE MATTERS HEREIN SET FORTH. THE LOAN AGREEMENT, AS
AMENDED BY THIS SECOND AMENDMENT, MAY NOT BE MODIFIED OR AMENDED EXCEPT BY
A WRITING SIGNED AND DELIVERED BY THE BORROWER, AVIATION, MARINE, XXXXXXXX
AND THE BANK.
13. GOVERNING LAW: COUNTERPARTS. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of
Louisiana. This Second Amendment may be executed in any number of
counterparts, all of which counterparts, when taken together, shall
constitute one and the same instrument.
14. 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Second
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/ Xxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
AMERICAN AVIATION L.L.C.
BY: OMNI ENERGY SERVICES CORP.,
AS SOLE MEMBER
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
OMNI MARINE & SUPPLY, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
XXXXXXXX DRILL TECH INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
