FIFTH AMENDMENT TO LOAN AGREEMENT
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (this "Amendment"), dated as of March ____, 2008, is between CONCORD TECHNOLOGIES, L.P., a Texas limited partnership ("Concord"), GEOSPACE ENGINEERING RESOURCES INTERNATIONAL, LP, a Texas limited partnership ("Engineering"), GEOSPACE TECHNOLOGIES, LP, a Texas limited partnership ("Geospace"), OYO INSTRUMENTS, LP, a Texas limited partnership ("Instruments"), and OYOG OPERATIONS, LP, a Texas limited partnership ("Operations", and together with Concord, Engineering, Geospace and Instruments, the "Borrowers"), jointly and severally, and REGIONS BANK (F/K/A UNION PLANTERS BANK, N.A.) ("Lender").
RECITALS:
Borrowers and Lender entered into that certain Loan Agreement dated as of November 22, 2004, as amended by First Amendment to Loan Agreement dated as of September 19, 2005, Second Amendment to Loan Agreement dated as of June 16, 2006, Third Amendment to Loan Agreement dated as of January 10, 2007, and Fourth Amendment to Loan Agreement dated as of October 12, 2007 (as amended, the "Agreement").
Pursuant to the Agreement, OYO Geospace Corporation, OYOG, LLC and OYOG Limited Partner, LLC ("Guarantors") executed those certain Guaranty Agreements dated as of January 10, 2007 (the "Guaranty Agreements") pursuant to which Guarantors guaranteed to Lender the payment and performance of the Obligations (as defined in the Agreement).
Borrowers and Lender now desire to amend the Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
Definitions
Section Definitions. Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the meanings given to such terms in the Agreement, as amended hereby.
ARTICLE
Amendments
Section Amendment to Certain Definitions. Effective as of date hereof, the definition of each of the following terms contained in Section 1.1 of the Agreement is amended to read in its respective entirety as follows:
"Guarantors" means GFC, General Partner, Limited Partner and Parent.
"Guaranty Agreements" means the Guaranty-GFC, the Guaranty-General Partner, the Guaranty-Limited Partner and the Guaranty-Parent.
"Security Agreements" means the Security Agreement-GFC, the Security Agreement-Concord, the Security Agreement-Engineering, the Security Agreement-Geospace, the Security Agreement-Instruments and the Security Agreement-Operations.
Effective as of the date hereof, the following definitions shall be added to Section 1.1 of the Agreement in proper alphabetical order:
"GFC" means Geospace Finance Corp., a Texas corporation, and its successors and assigns.
"Guaranty-GFC" means the Guaranty Agreement executed by GFC in favor of Lender in substantially the form of Exhibit "N" hereto, as the same may be amended, supplemented or modified.
"Security Agreement-GFC" means the Security Agreement executed by GFC in favor of Lender in substantially the form of Exhibit "O" hereto, as the same may be amended, supplemented or modified.
Section Amendment to Section 4.1. Effective as of the date hereof, paragraph (c) shall be added to Section 4.1 of the Agreement and shall read in its entirety as follows:
(c) GFC shall grant to Lender a first priority security interest in (i) all of its accounts, accounts receivable, general intangibles (but excluding patents, trademarks, trade names and other intellectual property), inventory, chattel paper, documents, instruments, deposit accounts, equipment, machinery and furniture, and (ii) all of its investment property, cash and financial assets arising therefrom, whether now owned or hereafter acquired, and all products and proceeds thereof, pursuant to the Security Agreement-GFC executed by GFC.
Section Amendment to Section 6.14. Effective as of the date hereof, Section 6.14 of the Agreement is amended to read in its entirety as follows:
Section 6.14. Subsidiaries. Neither any Borrower nor any Guarantor has any Subsidiaries except as shown on the OYO Geospace Corporation Entity Structure As of December 31, 2007 (the "Corporate Chart") delivered by Borrowers to Lender. Each Borrower and each Guarantor owns the percentage of ownership interests in its Subsidiaries shown on the Corporate Chart.
Section Amendment to Section 8.12. Effective as of the date hereof, Section 8.12 of the Agreement is amended to read in its entirety as follows:
Section 8.12. Capital Expenditures. No Borrower will permit the aggregate capital expenditures of Borrowers, Guarantors and their Subsidiaries (other than GFC) to exceed (a) $18,000,000.00 during the fiscal year ending September 30, 2008 and (b) $18,000.000.00 for the fiscal year ending September 30, 2009 and any fiscal year thereafter.
Section Amendment to Section 8.1. Effective as of the date hereof, Section 8.1 of the Agreement is amended to read in its entirety as follows:
Section 8.1. Debt. No Borrower will incur, create, assume or permit to exist, nor will it permit any Guarantor or any Subsidiary to incur, create, assume, or permit to exist, any Debt, except Debt to Lender, Debt described in Schedule 8.1(c), Subordinated Debt, accounts payable in the ordinary course of business, Debt arising from the endorsement of instruments for collection in the ordinary course of business, Debt to local Russian Bank (consisting of an overdraft line of credit) in an aggregate principal amount which does not exceed $500,000.00 at any time, and in addition to Debt otherwise permitted by this Section 8.1, Debt of Borrowers, Guarantors and their Subsidiaries in an aggregate principal amount which does not exceed $3,000,000.00 outstanding at any time.
Section Amendment to Exhibits and Schedules. Effective as of the date hereof, (a) Exhibit "N" shall be added to the Agreement (Guaranty-GFC) in substantially the form of Annex "A" to this Amendment, (b) Exhibit "O" shall be added to the Agreement (Security Agreement-GFC) in substantially the form of Annex "B" to this Amendment and (c) Schedule 8.1(c) is amended to read in its entirety as set forth in Annex "C" to this Amendment.
ARTICLE
Conditions Precedent
Section Conditions. The effectiveness of this Amendment is subject to the receipt by Lender of the following in form and substance satisfactory to Lender:
Certificate - Each Borrower. For each Borrower, a certificate of an officer of such Borrower acceptable to Lender certifying (i) resolutions of the General Partner which authorize the execution, delivery and performance by such Borrower of this Amendment and the other Loan Documents executed or delivered or to be executed or delivered in connection therewith to which such Borrower is or is to be a party, and (ii) the names of the officers of such Borrower authorized to sign this Amendment and each of the other Loan Documents to which such Borrower is or is to be a party together with specimen signatures of such Persons.
Governmental Certificates - Each Borrower. A certificate issued by the appropriate government official of the state of organization of each Borrower as to the existence of such Borrower.
Certificate-GFC. A certificate of the Secretary or another officer of GFC acceptable to Lender certifying (i) resolutions of the board of directors of GFC which authorize the execution, delivery and performance by GFC of the Guaranty-GFC and the other Loan Documents to which GFC is or is to be a party and (ii) the names of the officers of GFC authorized to sign the Guaranty-GFC and each of the other Loan Documents to which GFC is or is to be party together with specimen signatures of such officers.
Organizational Documents-GFC. The Certificate of Formation and the Bylaws of GFC certified by the Secretary or another officer of GFC acceptable to Lender.
Governmental Certificates-GFC. Certificates issued by the appropriate government officials of the state of incorporation of GFC as to the existence and good standing of GFC.
Security Agreement-GFC. The Security Agreement-GFC executed by GFC.
Guaranty-GFC. The Guaranty-GFC executed by GFC.
Financing Statements. Uniform Commercial Code financing statements showing GFC as debtor.
UCC Search. A Uniform Commercial Code search showing all financing statements and other documents or instruments on file against GFC in the office of the Secretary of State of Texas.
Additional Information. Such additional documents, instruments and information as Lender may reasonably request.
Section Additional Conditions. The effectiveness of this Amendment is also subject to the satisfaction of the additional conditions precedent that the representations and warranties contained herein and in all other Loan Documents, as amended hereby, shall be true and correct as of the date hereof as if made on the date hereof, all proceedings, corporate or otherwise, taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be satisfactory to Lender, and no Event of Default or Unmatured Event of Default shall have occurred and be continuing.
ARTICLE
Ratifications, Representations, and Warranties
Section Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Agreement and except as expressly modified and superseded by this Amendment, the terms and provisions of the Agreement are ratified and confirmed and shall continue in full force and effect. Borrowers and Lender agree that the Agreement as amended hereby shall continue to be the legal, valid and binding obligation of such Persons enforceable against such Persons in accordance with its terms.
Section Representations, Warranties and Agreements. Each Borrower hereby represents and warrants to Lender that the execution, delivery, and performance of this Amendment and any and all other Loan Documents executed or delivered in connection herewith have been authorized by all requisite action on the part of such Borrower and will not violate the Organizational Documents of such Borrower, the representations and warranties contained in the Agreement as amended hereby, and all other Loan Documents are true and correct on and as of the date hereof as though made on and as of the date hereof, no Event of Default or Unmatured Event of Default has occurred and is continuing, such Borrower is in full compliance with all covenants and agreements contained in the Agreement as amended hereby, such Borrower is indebted to Lender pursuant to the terms of the Note, as the same may have been renewed, modified, extended and rearranged, including, without limitation, renewals, modifications and extensions made pursuant to this Amendment, the liens, security interests, encumbrances and assignments created and evidenced by the Loan Documents are, respectively, valid and subsisting liens, security interests, encumbrances and assignments and secure the Note as the same may have been renewed, modified or rearranged, including, without limitation, renewals, modifications and extensions made pursuant to this Amendment, and such Borrower has no claims, credits, offsets, defenses or counterclaims arising from the Loan Documents or Lender's performance under the Loan Documents.
Section Corporate Entity Structure. Borrower agrees that attached hereto as Annex "D" is a true and correct copy of the OYO Geospace Corporation Entity Structure As of December 31, 2007.
ARTICLE
Miscellaneous
Section Survival of Representations and Warranties. All representations and warranties made in this Amendment or any other Loan Documents including any Loan Document furnished in connection with this Amendment shall fully survive the execution and delivery of this Amendment and the other Loan Documents, and no investigation by Lender or any closing shall affect the representations and warranties or the right of Lender to rely on them.
Section Reference to Agreement. Each of the Loan Documents, including the Agreement and any and all other agreements, documents, or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Agreement, as amended hereby, are hereby amended so that any reference in such Loan Documents to the Agreement shall mean a reference to the Agreement, as amended hereby.
Section Expenses of Lender. As provided in the Agreement, Borrowers agree to pay on demand all reasonable costs and expenses incurred by Lender in connection with the preparation, negotiation and execution of this Amendment and the other documents and instruments executed pursuant hereto and any and all amendments, modifications and supplements thereto, including, without limitation, the costs and fees of Lender's legal counsel, and all reasonable costs and expenses incurred by Lender in connection with the enforcement or preservation of any rights under the Agreement, as amended hereby, or any other Loan Document, including, without limitation, the costs and fees of Lender's legal counsel.
Section Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
Section APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN HOUSTON, XXXXXX COUNTY, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of Lender and Borrower and their respective successors and assigns, except Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of Lender.
Section Counterparts. This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument.
Section Effect of Waiver. No consent or waiver, express or implied, by Lender to or for any breach of or deviation from any covenant, condition or duty by any Borrower under this Amendment shall be deemed a consent or waiver to or of any other breach of the same or any other covenant, condition or duty.
Section Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.
Section ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT AND THE OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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Executed as of the date first written above.
BORROWERS:
CONCORD TECHNOLOGIES, LP
By: OYOG, LLC,
its general partner
By:
Xxxxxx X. XxXxxxxx
Vice President and
Chief Financial Officer
GEOSPACE ENGINEERING RESOURCES
INTERNATIONAL, LP
By: OYOG, LLC,
its general partner
By:
Xxxxxx X. XxXxxxxx
Vice President and
Chief Financial Officer
GEOSPACE TECHNOLOGIES, LP
By: OYOG, LLC,
its general partner
By:
Xxxxxx X. XxXxxxxx
Vice President and
Chief Financial Officer
OYO INSTRUMENTS, LP
By: OYOG, LLC,
its general partner
By:
Xxxxxx X. XxXxxxxx
Vice President and
Chief Financial Officer
OYOG OPERATIONS, LP
By: OYOG, LLC,
its general partner
By:
Xxxxxx X. XxXxxxxx
Vice President and
Chief Financial Officer
LENDER:
REGIONS BANK
By:
Xxxxx X. Page
Senior Vice President
Each of the undersigned Guarantors hereby consents and agrees to this Amendment and agrees that the Guaranty Agreement executed by such Person shall remain in full force and effect and shall continue to be the legal, valid and binding obligations of such Guarantor, enforceable against such Guarantor in accordance with its terms and shall evidence such Guarantor's guaranty of the Note as renewed and extended from time to time.
OYOG, LLC
By:
Xxxxxx X. XxXxxxxx
Vice President and Chief Financial Officer
OYOG LIMITED PARTNER, LLC
By:
Xxxxxx X. XxXxxxxx
Manager
OYO GEOSPACE CORPORATION
By:
Xxxxxx X. XxXxxxxx
Vice President and Chief Financial Officer
LIST OF ANNEXES
Annex Document
A Guaranty-GFC
B Security Agreement-GFC
C Schedule 8.1(c)
D OYO Geospace Corporation Entity Structure As of December 31, 2007
Annex "A"
Guaranty-GFC
Annex "B"
Security Agreement-GFC
Annex "C"
Schedule 8.1(c)
Annex "D"
OYO Geospace Corporation Entity Structure As of December 31, 2007
