NINTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS NINTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is dated
and effective as of June 12, 2000 (the "Ninth 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, as amended by Fifth Amendment thereto dated as of September 29, 1999,
and by Sixth Amendment thereto dated as of December 28, 1999, as amended by
Seventh Amendment thereto dated as of March 31, 2000, and as amended by
Eighth Amendment thereto dated as of May 15, 2000 (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, pursuant to the Sixth Amendment, the Bank, among other
matters, extended the Termination Date from January 20, 2000 to March 31,
2000;
WHEREAS, pursuant to the Seventh Amendment, the Bank, among other
matters, extended the Termination Date from March 31, 2000 to May 15, 2000;
WHEREAS, pursuant to the Eighth Amendment, the Bank, among other
matters, extended the Termination Date from May 15, 2000 to May 22, 2000;
WHEREAS, the Borrower and the Guarantors have requested that the Bank
(i) extend the Termination Date from May 22, 2000 to September 30, 2000,
(ii) add to the principal amount due under the Term Note the past due
extension fee of $150,000.00, and (iii) make certain other changes to the
Loan Agreement; and
WHEREAS, subject to (i) a reduction of the Revolving Loan Commitment
from $6,000,000.00 to $5,000,000.00, (ii) a consolidation and renewal of
the indebtedness evidenced by the Term Note and the Acquisition Note, and
(iii) the terms and conditions of the Loan Agreement, as amended by this
Ninth 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 Ninth Amendment.
2. DEFINED TERMS REVISION.
(a) The definition of the term "Revolving Note" appearing in
Section 1.1 of the Loan Agreement is hereby supplemented to include each of
the Allonges to such Note as provided in the Sixth Amendment, the Seventh
Amendment, the Eighth Amendment, and this Ninth Amendment.
(b) The definitions of the terms "Acquisition Note" and "Term
Note" appearing in Section 1.1 of the Loan Agreement are hereby deleted and
replaced with the following:
"TERM NOTE" shall mean that certain promissory
note by Borrower dated of even date with the Ninth
Amendment, in the principal amount of
$8,466,111.00, payable to the order of Bank with
interest as therein provided, together with all
renewals, extensions and refinancings of said
promissory note. The indebtedness evidenced by
the said promissory note constitutes a renewal and
consolidation of the outstanding principal
indebtedness evidenced by that certain promissory
note dated September 29, 1999 by Borrower in the
original principal amount of $6,067,452.13 payable
to the order of the Bank and that certain
promissory note dated September 29, 1999 by
Borrower in the original principal amount of
$2,948,658.96 payable to the order of the Bank.
Henceforth, all references in the Loan Agreement to the Term Note and the
Acquisition Note shall be deemed a reference to the Term Note as defined in
this paragraph 2(b). Novation is not intended.
(c) The definitions of the terms "Acquisition Loans",
"Acquisition Loan Commitment", and "Term Loan Commitment" appearing in
Section 1.1 of the Loan Agreement are hereby deleted.
(d) The definition of the term "Term Loan" appearing in Section
1.1 of the Loan Agreement is hereby deleted and replaced with the
following:
"TERM LOAN" shall mean the loan evidenced by the
Term Note as defined in paragraph 2(b) of the
Ninth Amendment.
(e) The definition of the term "Borrowing Base Amount" appearing
in Section 1.1 of the Loan Agreement (as added by the Fifth Amendment and
subsequently modified) is hereby modified to reflect that the reference to
$6,000,000.00 in said definition is hereby replaced with a reference to
$5,000,000.00.
(f) 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)
September 30, 2000, or (ii) the date of
termination of the Commitments pursuant to Article
XIII hereof.
(g) The following definition is hereby added to the Loan
Agreement:
"NINTH AMENDMENT" shall mean that certain Ninth
Amendment to Amended and Restated Loan Agreement
dated as of June 12, 2000 by and among the
Borrower, Aviation, Omni Canada, Omni Alaska, and
the Bank.
3. REVISIONS TO ARTICLE II (REVOLVING LOANS) OF THE LOAN AGREEMENT.
Subject to the terms and conditions of the Loan Agreement, as amended by
this Ninth Amendment, the parties agree as follows:
(a) The Revolving Loan Commitment is hereby reduced from
$6,000,000.00 to $5,000,000.00.
(b) The term "Revolving Note" in Section 2.2.1 of the Loan
Agreement, as modified by the Fourth Amendment and the Fifth Amendment,
shall henceforth mean that certain promissory note dated September 29,
1999, by Borrower in the maximum aggregate principal amount of
$6,000,000.00 payable to the order of the Lender, as modified by each
Allonge to such promissory note executed by Borrower in connection with the
Sixth Amendment, the Seventh Amendment, and the Eighth Amendment, and as
modified by the Allonge to such promissory note executed by Borrower in
connection with this Ninth Amendment. Pursuant to the Allonge to the
Revolving Note executed by the Borrower in connection with this Ninth
Amendment, the maximum aggregate principal amount of the Revolving Note is
$5,000,000.00.
(c) The reference in line 3 of Section 2.2.8 of the Loan
Agreement, as modified by the Fourth Amendment and the Fifth Amendment, to
$6,000,000.00 shall henceforth be deemed a reference to $5,000,000.00.
4. REVISIONS TO ARTICLE III (ACQUISITION LOANS) OF THE LOAN
AGREEMENT. As a result of Bank's consolidation and renewal of the
Acquisition Note and Term Note (as such terms were defined in the Loan
Agreement prior to this Ninth Amendment), Sections 3.1 through 3.2.6 are
hereby deleted.
5. REVISIONS TO ARTICLE IV (TERM LOAN) OF THE LOAN AGREEMENT.
(a) The parties acknowledge that: (i) the Term Note (as defined
in paragraph 2(b) of this Ninth Amendment) is a renewal and consolidation
of the outstanding principal due under the Term Note and the Acquisition
Note (as such terms were defined in the Loan Agreement prior to the Ninth
Amendment); (ii) the $150,000.00 extension fee referenced in Section 5.6 of
the Loan Agreement (which section was added by the Sixth Amendment) has
been added to the principal balance due under the Term Note (as defined in
paragraph 2(b) of this Ninth Amendment); and (iii) the $100,000.00
principal payment referenced in paragraph 10(n) of this Ninth Amendment was
applied by Bank to outstanding principal due under the Term Note and
Acquisition Note (as such terms were defined in the Loan Agreement prior to
this Ninth Amendment).
(b) Sections 4.1 and 4.2 of the Loan Agreement are no longer
accurate, and are hereby deleted.
6. TERMINATION DATE, INTEREST PAYMENTS, AND PRINCIPAL PAYMENTS.
(a) Subject to the terms and conditions of this Ninth Amendment,
the Termination Date for all Loans is as set forth in paragraph 2(f) above.
The final maturity date specified in the Notes is extended from May 22,
2000 to September 30, 2000. The maturity date extension also shall be set
forth in an Allonge to the Revolving Note to be executed by Borrower.
(b) The Borrower shall continue to make weekly interest payments
under each of the Notes.
(c) The principal payments due under the Notes shall be as set
forth in the Revolving Note, as modified by the Allonge thereto executed in
connection with this Ninth Amendment, and in the Term Note (as defined in
paragraph 2(b) of this Ninth Amendment).
7. TEXTRON LETTER OF CREDIT. The parties acknowledge that Bank has
funded the Textron Letter of Credit in the amount of $380,000.00, and the
funds advanced by Bank under the Textron Letter of Credit are now included
as part of the Loans.
8. REVISION TO ARTICLE V (FEES) OF THE LOAN AGREEMENT. Section 5.6
of the Loan Agreement (which was added by the Sixth Amendment) is hereby
deleted.
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. Further,
the Guarantors hereby consent to the terms and conditions of this Ninth
Amendment, and confirm their solidary liability for all Loans.
10. COVENANTS AND CONDITIONS PRECEDENT. The agreements and
obligations of the Bank as set forth in this Ninth Amendment are subject to
satisfaction of the following covenants and conditions precedent as of the
date of execution of this Ninth Amendment and the continued satisfaction of
said covenants and conditions precedent:
(a) The Borrower shall have executed and delivered to the Bank
this Ninth Amendment, an Allonge to the Revolving Note, the Term Note (as
defined in paragraph 2(b) of this Ninth Amendment), and all other documents
required by the Loan Agreement, as amended by this Ninth Amendment, and the
Guarantors shall have executed and delivered to the Bank this Ninth
Amendment, and all other documents required by the Loan Agreement, as
amended by this Ninth 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 Ninth 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 Ninth Amendment;
(e) Except for Events of Default pertaining to Loan payment
violations as addressed in this Ninth Amendment and Borrower's continued
failure to comply with Section 11.13 (Deposit Accounts), no Default or
Event of Default shall exist or shall result from the transactions
contemplated by this Ninth Amendment;
(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 Ninth 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 as of
the execution of this Ninth Amendment, and must remain current;
(n) Bank's receipt of a written commitment by Advantage Capital
to make capital contributions to Borrower in the amounts of $100,000.00 (on
or prior to the execution of this Ninth Amendment), $250,000.00 (on or
prior to the execution of this Ninth Amendment), and $250,000.00 (as needed
on or prior to June 30, 2000), and (i) Borrower's receipt of the
$100,000.00 contribution and delivery to Bank for application to past due
principal on the Term Note and the Acquisition Note (as such terms were
defined in the Loan Agreement prior to this Ninth Amendment), (ii)
Borrower's receipt of the initial $250,000.00 contribution for working
capital support, and (iii) Borrower's receipt as needed on or prior to June
30, 2000 of the subsequent $250,000.00 contribution for working capital
support;
(o) Borrower unconditionally agrees that the contributions
detailed in (n) above shall not be used by Borrower to reduce debt
obligations of Borrower at any other financial institution;
(p) All legal fees as of May 31, 2000 by Bank's counsel in the
amount of $5,183.79 pertaining to prior matters involving Borrower, and all
legal fees by Bank's counsel in connection with this Ninth Amendment, must
be paid by Borrower;
(q) All fees owed to Bank by Borrower, including unused fees of
$9,831.14 and equipment and real estate appraisal fees, must be paid;
(r) Delivery to Bank of an asset sale timeline must be provided
prior to the execution of this Ninth Amendment or within 15 days
thereafter, including an update on the Coastal Turbines transaction;
(s) Warrants issued to Bank in January 1998 allowing an option
by Bank to purchase 4,545 shares of stock issued by Borrower at a strike
price of $11.00 per share must be reissued to include a strike price of
$1.50 per share and delivered to Bank;
(t) Monthly board reporting, weekly accounts receivable and
accounts payable aging and daily borrowing base certificates will be
required to be provided to Bank in a timely fashion. The April 2000 Board
Book must be received by Bank prior to execution of this Ninth Amendment;
(u) Weekly written updates regarding refinancing and equity
offering activity and efforts must be provided to Bank on Monday of each
week; and
(v) Borrower's deposit with Bank of all checks delivered to
Borrower since May 22, 2000, as payment by account debtors of accounts
receivable owed to Borrower, and Borrower's delivery to Bank of a copy of
each of the foregoing checks.
Bank reserves the right, in its sole discretion, to waive in writing
compliance with any of the foregoing conditions and covenants. A violation
of any of the foregoing conditions and covenants shall constitute an Event
of Default.
11. REPRESENTATION. On and as of the date hereof, and after giving
effect to this Ninth 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 Ninth Amendment.
12. DEPOSIT ACCOUNTS. The Bank reserves its right to demand
compliance by Borrower with Section 11.13 of the Loan Agreement.
13. 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 Ninth Amendment.
14. WAIVER OF DEFENSES; RELEASE OF LIABILITIES. THE BORROWER AND THE
GUARANTORS ACKNOWLEDGE THAT THIS NINTH 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 NINTH 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 NINTH
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. ACCEPTANCE OF THE PROCEEDS OF EACH
REVOLVING LOAN AFTER THE DATE HEREOF SHALL CONSTITUTE A RATIFICATION,
ADOPTION AND CONFIRMATION BY BORROWER AND GUARANTORS OF THE FOREGOING
GENERAL RELEASE OF RELEASED CLAIMS AND LIABILITIES THAT ARE BASED IN WHOLE
OR IN PART ON FACTS, WHETHER OR NOT KNOWN OR UNKNOWN, EXISTING ON OR PRIOR
TO THE DATE OF RECEIPT OF ANY SUCH REVOLVING LOAN. THIS WAIVER AND RELEASE
SHALL BE CONSTRUED TO HAVE THE BROADEST POSSIBLE SCOPE.
15. AMENDMENTS. THE LOAN AGREEMENT AND THIS NINTH 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, OMNI ALASKA,
AVIATION, AND OMNI CANADA. THE LOAN AGREEMENT, AS AMENDED BY THIS NINTH
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 NINTH 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.
16. GOVERNING LAW: COUNTERPARTS. This Ninth Amendment shall be
governed by and construed in accordance with the laws of the State of
Louisiana. This Ninth Amendment may be executed in any number of
counterparts, all of which counterparts, when taken together, shall
constitute one and the same instrument.
17. CONTINUED EFFECT. Except as expressly modified herein, the Loan
Agreement shall continue in full force and effect. The Loan Agreement as
amended by this Ninth Amendment is hereby ratified and confirmed by the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Ninth
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: Xxxx X. Xxxxxxxxx
Title: President, Chief Executive Officer
AMERICAN AVIATION L.L.C.
BY: OMNI ENERGY SERVICES CORP.,
AS SOLE MEMBER
By:_____________________________________
Name: Xxxx X. Xxxxxxxxx
Title: President, Chief Executive Officer
OMNI ENERGY SERVICES CANADA CORP.
(F/K/A XXXXXXXX DRILL TECH INC.)
By:_____________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
OMNI ENERGY SERVICES- ALASKA, INC.
By:_____________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
HIBERNIA NATIONAL BANK
By:_____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
