EXHIBIT 10.15
=================================================================
AMENDED AND RESTATED LOAN AGREEMENT
dated as of
January 20, 1998
By and Among
OMNI ENERGY SERVICES CORP.,
AMERICAN AVIATION L.L.C.,
OMNI MARINE & SUPPLY, INC.,
and
HIBERNIA NATIONAL BANK
=================================================================
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement")
dated as of January 20, 1998, by and 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
("Omni Marine"; Aviation and Omni Marine are herein collectively
called the "Guarantor"), and HIBERNIA NATIONAL BANK, a national
banking association (the "Bank").
R E C I T A L S:
1. The Bank has previously extended certain credit
facilities to Omni Geophysical, L.L.C., a Louisiana limited
liability company ("Omni Geophysical") pursuant to that certain
Loan Agreement dated as of July 19, 1996, by and between Omni
Geophysical and the Bank, as heretofore amended by that certain
First Amendment to Loan Agreement dated as of December 4, 1996,
and by that certain Second Amendment to Loan Agreement dated as
of April 4, 1997 (as so amended, the "Original Agreement").
2. The Original Agreement was amended and restated
pursuant to that certain Amended and Restated Loan Agreement
dated as of June 13, 1997, by and between Omni Geophysical and
the Bank, as amended by First Amendment thereto dated as of
August 6, 1997, by Second Amendment thereto dated as of September
30, 1997, and by Third Amendment thereto dated as of November 21,
1997 (the Amended and Restated Loan Agreement, as amended, is
herein called the "First Restated Agreement").
3. The First Restated Agreement provides for certain
credit and loan facilities to both Omni Geophysical and Aviation.
4. Effective January 5, 1998, Omni Geophysical was merged
into the Borrower, and pursuant to the merger, the Borrower
assumed all of Omni Geophysical's indebtedness to the Bank.
5. Each Guarantor is a wholly-owned subsidiary of the
Borrower.
6. The Borrower has applied to the Bank for new loans and
credit facilities, the proceeds of which will be used by the
Borrower, in part, to refinance the existing indebtedness of Omni
Geophysical and Aviation to the Bank.
7. The Bank has agreed to provide such credit and loan
facilities to the Borrower pursuant to the terms of this
Agreement. The Agreement shall amend and restate the Original
Agreement, as amended and restated by the First Restated
Agreement, in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants
hereunder set forth, the Borrower, the Guarantor, and the Bank do
hereby amend and restate the Original Agreement, as amended and
restated by the First Restated Agreement, in its entirety, and do
hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1. Defined Terms. As used in this Agreement, and
unless the context requires a different meaning, the following
terms have the meanings indicated:
"Acquisition Loan Commitment" shall mean the agreement by
the Bank to the Borrower to make loans to finance capital
expenditures and/or acquisitions in accordance with the
provisions of Article III hereof.
"Acquisition Loans" shall mean the loans made by the Bank
under the Acquisition Note to the Borrower in accordance
with and subject to the terms of the Acquisition Loan
Commitment.
"Acquisition Note" shall mean that certain promissory note
more fully described in Section 3.2.1 hereof, together with
any and all extensions, renewals, modifications, and
substitutions therefor.
"Agreement" shall mean this Amended and Restated Loan
Agreement, as the same may from time to time be amended,
modified or supplemented and in effect.
"Aircraft Security Agreement" shall mean that certain
Aircraft Security Agreement by Aviation, Omni Geophysical,
and the Bank, dated as of August 6, 1997, as amended by
First Amendment thereto dated as of December 29, 1997, and
as the same may be amended from time to time and in effect,
affecting certain aircraft, engines, propellers, and related
inventory, equipment and spare parts of Aviation.
"Average Funded Debt" shall mean the Borrower's consolidated
daily average amount outstanding under all credit facilities
at Bank plus any amounts outstanding elsewhere (including
any Additional Debt permitted under Section 12.5(d) of this
Agreement).
"Aviation" shall mean American Aviation L.L.C., a Missouri
limited liability company, together with its successors and
assigns.
"Applicable Margin" shall mean 1.50% until March 31, 1998.
Thereafter, the Applicable Margin shall be determined by
Omni Geophysical's Average Funded Debt to EBITDA ratio (on a
rolling four quarters basis), as follows:
Average Funded Debt Applicable
to EBITDA
Margin
x > 3.00x 2.25%
3.00 > x > 2.50 2.00%
2.50 > x > 2.25 1.75%
2.25 > x > 2.00 1.50%
2.00 > x > 1.50 1.35%
x < 1.50 1.25%
"Bank" shall mean Hibernia National the Bank, a national
banking association.
"Base Rate" shall mean the rate of interest established from
time to time by the Board of Directors or management of
Citibank, N.A., New York, New York, as its "prime" or "base"
lending rate, whether or not that rate is published, and
which is not necessarily the lowest rate charged by
Citibank, N.A., or by the Bank, such rate to be adjusted
automatically on and as of the effective date of any change
in such Base Rate.
"Borrower" shall mean, individually, interchangeably, and
collectively, , Omni Energy Services Corp., a Louisiana
corporation, together with its successors and assigns.
"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 amount of Qualified
Receivables at such time; or (b) for the Acquisition Loan
Commitment, the lesser of (i) $9,000,000.00 or (ii) advances
for acquisitions by the Borrower are limited to an earnings
multiple of less than or equal to 5x projected EBITDA (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.
"Business Day" means a day other than a Saturday, Sunday or
legal holiday for commercial banks under the laws of the
State of Louisiana or a day on which national banks are
authorized to be closed in New Orleans, Louisiana, and, if
such day relates to a Conversion to, or Continuation of, a
LIBOR Rate Loan, also a day on which dealings in Dollar
deposits are carried out in the interbank market selected by
the Bank for purposes of setting the LIBOR Rate.
"Collateral" shall mean any interest in any kind of property
or assets pledged, mortgaged or otherwise subject to an
Encumbrance in favor of the Bank pursuant to the Collateral
Documents.
"Collateral Documents" shall collectively refer to the
Mortgage, the Security Agreements, the Guaranty, and any and
all other documents in which an Encumbrance is created on
any property of the Borrower, the Guarantor, or of any third
person to secure payment of the Indebtedness of either
Borrower or any part thereof.
"Commitments" shall mean, collectively, the Revolving Loan
Commitment, the Acquisition Loan Commitment, and the Term
Loan Commitment
"Credits" shall have the meaning assigned to that term in
Section 2.1 hereof.
"Credit Application" shall have the meaning assigned to that
term in Section 2.3.1 hereof.
"Credit Commission" shall have the meaning assigned to that
term in Section 2.3.3 hereof.
"Credit Obligation" shall have the meaning assigned to that
term in Section 2.3.4 hereof.
"Debt" shall mean any and all amounts and/or liabilities
owing from time to time by either Borrower to any Person,
including the Bank, direct or indirect, liquidated or
contingent, now existing or hereafter arising, including
without limitation (i) indebtedness for borrowed money; (ii)
the amounts of all standby and commercial letters of credit
and bankers acceptances, matured or unmatured, issued on
behalf of either Borrower; (iii) guaranties of the
obligations of any other Person, whether direct or indirect,
whether by agreement to purchase the indebtedness of any
other Person or by agreement for the furnishing of funds to
any other Person through the purchase or lease of goods,
supplies or services (or by way of stock purchase, capital
contribution, advance or loan) for the purpose of paying or
discharging the indebtedness of any other Person, or
otherwise; (iv) the present value of all obligations for the
payment of rent or hire of property of any kind (real or
personal) under leases or lease agreements required to be
capitalized under GAAP, and (v) trade payables and operating
leases incurred in the ordinary course of business or
otherwise.
"Default" shall mean an event which with the giving of
notice or the lapse of time (or both) would constitute an
Event of Default hereunder.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Dominion Account" shall have the meaning ascribed to such
term in Section 11.14 hereof.
"EBITDA" shall mean earnings before interest, taxes,
depreciation, and amortization, less dividends or
distributions.
"Encumbrances" shall mean individually, collectively and
interchangeably any and all presently existing and/or future
mortgages, liens, privileges, servitudes, rights-of-way and
other contractual and/or statutory security interests and
rights of every nature and kind that, now and/or in the
future may affect the property of either Borrower or the
Guarantor or any part or parts thereof.
"Environmental Laws" shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the Superfund Amendments and Reauthorization Act
of 1986, Pub. L. No. 99-499 ("XXXX"), the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et
seq., the Resource Conservation and Recovery Act, 49 U.S.C.
Section 6901, et seq., the Louisiana Environmental Affairs
Act, La. R.S. 30:2001 et seq., or other applicable
Governmental Requirements or regulations adopted pursuant to
any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Event of Default" shall mean individually, collectively and
interchangeably any of the Events of Default set forth below
in Section 13.1 hereof.
"Funded Debt" shall mean, on a consolidated basis, all
outstanding debt of Borrower from Bank and any other
outstanding debt of Borrower owed to other creditors.
"Funding Losses" shall mean, with respect to (a) Borrower's
payment or prepayment of principal of a LIBOR Rate Loan or
LIBOR Rate Tranche on a day other than the last day of the
applicable Interest Period, (b) Borrower's failure to borrow
a LIBOR Rate Loan or a LIBOR Rate Tranche on the date
specified by Borrower; (c) Borrower's failure to make any
prepayment of any LIBOR Rate Loans or LIBOR Rate Tranches on
the date specified by the Borrower, or (d) any cessation of
a LIBOR Rate to apply to the Loans or any Tranche thereof
pursuant to Section 7.5 hereof`, in each case whether
voluntary or involuntary, any loss, expense, penalty,
premium or liability incurred by the Bank (including but not
limited to any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds
acquired by the Bank to fund or maintain a Loan).
"GAAP" shall mean, at any time, accounting principles
generally accepted in the United States as then in effect.
"General Intangibles" shall mean, all general intangibles as
defined in 9-106 of the UCC, of the Borrower and the
Guarantor, whether now owned or hereafter acquired,
including without limitation (i) all contractual rights and
obligations or indebtedness owing to the Borrower (other
than Receivables) from whatever source arising; (ii) all
things and actions, rights represented by judgments and
claims arising out of tort and other claims related to the
Collateral, including the right to assert and otherwise be
the proper party of interest to commence and prosecute
actions; (iii) all goodwill, patents, patent licenses,
trademarks, trademark licenses, trade names, service marks,
trade secrets, rights and intellectual property, copyrights,
permits and licenses; (iv) all rights or claims in respect
of refunds for taxes paid; and (v) all deposit accounts of
the Borrower and the Guarantor, including the Dominion
Account.
"Governmental Requirement" shall mean any applicable state,
federal or local law, statute, ordinance, code, rule,
regulation, order or decree.
"Guarantor" shall mean individually, interchangeably, and
collectively Omni Marine & Supply, Inc., a Louisiana
corporation, and its successors and assigns, and American
Aviation L.L.C., a Missouri limited liability company, and
its successors and assigns, and any wholly-owned subsidiary
of Borrower that the Borrower may hereafter acquire.
"Guaranty" shall mean, collectively, that certain Commercial
Guaranty dated January 20, 1998 by Aviation in favor of the
Bank and that certain Commercial Guaranty dated January 20,
1998 by Omni Marine in favor of the Bank.
"Indebtedness" shall mean, at any time, the indebtedness of
the Borrower evidenced by the Notes executed by the Borrower
pursuant to this Agreement, in principal, interest, costs,
expenses and reasonable attorneys' fees and all other fees
and charges, together with all Credit Obligations, Credit
Commissions, commitment fees and other indebtedness and
costs and expenses for which the Borrower is responsible
under this Agreement or under any of the Related Documents.
In addition, the word "Indebtedness" also includes, any and
all other loans, extensions of credit, obligations, debts
and liabilities of the Borrower, plus interest thereon, that
may now and in the future be owed to or incurred in favor of
the Bank, as well as all claims by the Bank against the
Borrower, whether existing now or later; whether they are
voluntary or involuntary, due or to become due, direct or
indirect or by way of assignment, determined or
undetermined, absolute or contingent, liquidated or
unliquidated; whether the Borrower may be liable
individually or jointly with others, of every nature and
kind whatsoever, in principal, interest, costs, expenses and
reasonable attorneys' fees and all other fees and charges;
whether the Borrower may be obligated as principal obligor,
guarantor, surety, accommodation party or otherwise.
"Interest Payment Date" shall have the meaning ascribed to
such term in Section 6.2 hereof.
"Interest Period" shall mean with respect to a LIBOR Rate
Loan or a LIBOR Rate Tranche, each period commencing on (1)
the date any such LIBOR Rate Loan or LIBOR Rate Tranche of
any new Loan is made, or (2) the day following the last day
of the immediately preceding Interest Period for which a
LIBOR Rate-based rate for the LIBOR Rate Loan or LIBOR Rate
Tranche is applicable and is continued, and, in each case,
ending on the numerically corresponding day in the first,
second, or third calendar month thereafter, as a Borrower
may select as provided in Article VI hereof, except that
each Interest Period which commences on the last Business
Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the
foregoing: (i) if any Interest Period would otherwise
commence before and end after the final maturity date of the
Loan to which it relates, such Interest Period shall end on
the final maturity date of such Loan; (ii) each Interest
Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day,
unless such next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding
Business Day.
"LIBOR Rate" shall mean, with respect to the applicable
Interest Period in effect, an interest rate per annum equal
to the quotient (converted to a percentage) of (i) the rate
per annum of interest equal to the annual rate of interest
(rounded upward to the nearest whole multiple of 1/100 of
1%, if such average is not such a multiple) determined by
the Bank, at or before 11:00 a.m. New Orleans, Louisiana
time on the first day of such Interest Period, to be the
annual rate of interest at which deposits of Dollars are
offered by prime banks in whatever London interbank market
may be selected by the Bank in its sole discretion, acting
in good faith, at the time of determination and in
accordance with then existing practice in such market for
delivery on the first day of such Interest Period in
immediately available funds and having a maturity equal to
such Interest Period in an amount equal (or as nearly equal
as may be) to the applicable LIBOR Rate Loan, divided by
(ii) 1.00 minus the LIBOR Reserve Requirement (as defined
below), expressed as a decimal, for such Interest Period.
"LIBOR Reserve Requirement" shall mean for any day during an
Interest Period, that percentage which is specified by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, but not limited to, any marginal reserve
requirement) for the Bank with respect to liabilities
consisting of or including "Eurocurrency liabilities" (as
defined in Regulation D of the Board of Governors of the
Federal Reserve System) with a maturity equal to such
Interest Period. In determining the percentage, the Bank
may use any reasonable averaging and attribution methods.
Each determination by the Bank of a LIBOR Rate or of the
LIBOR Reserve Requirement used in determining same shall be
conclusive and binding, absent manifest error.
"LIBOR Rate Loan" shall mean any of the Loans (or any
portion thereof) bearing interest calculated on the basis of
the LIBOR Rate.
"LIBOR Rate Tranche" shall mean the amount of any Loan of
the Borrower that constitutes a LIBOR Rate Loan for a
specific Interest Period.
"Loans" shall mean, collectively, the Revolving Loans, the
Acquisition Loans, and the Term Loan.
"Loan Documents" shall mean this Agreement, the Notes, the
Collateral Documents and any other Related Documents.
"Material Adverse Change" shall mean, with respect to the
Borrower or either Guarantor, an event which causes a
material adverse effect on the business, assets, operations
or condition (financial or otherwise) of such Person, or
which otherwise changes in a materially adverse way any
other facts, circumstances or conditions which the Bank has
relied upon or utilized in making its Commitments hereunder.
"Mortgage" shall mean that certain Multiple Indebtedness
Mortgage by Omni Geophysical in favor of the Bank dated June
13, 1997, as amended from time to time and in effect,
pursuant to which the Bank is granted a mortgage lien on
certain real property in Lafayette Parish, Louisiana; which
Mortgage is recorded in the mortgage records of Lafayette
Parish under File No. 97-020694.
"Notes" shall mean, collectively, the Revolving Note, the
Acquisition Note and the Term 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.
"Omni Geophysical" shall mean Omni Geophysical, L.L.C., a
Louisiana limited liability company, together with its
successors and assigns.
"Omni Marine" shall mean Omni Marine & Supply, Inc., a
Louisiana corporation, together with its successors and
assigns.
"Permitted Encumbrances" shall have the meaning ascribed to
such term in Section 12.4 hereof.
"Person" shall mean an individual or a corporation,
partnership, trust, joint venture, incorporated or
unincorporated association, joint stock company, government,
or an agency or political subdivision thereof, or other
entity of any kind.
"Qualified Receivables" shall mean eighty percent (80%) of
the Receivables of the Borrower and/or the Guarantor,
carried on their respective books of account, which, on the
date as of which the determination is made, (a) are subject
to a first priority perfected Encumbrance in favor of the
Bank, (b) arose in the ordinary course of business of the
Borrower and/or the Guarantor, (c) arose from the sale of
goods or performance of services by the Borrower and/or the
Guarantor, (d) are evidenced by an "invoice" (i.e., an
invoice, shipping order or similar writing), (e) are not
subject to setoff, counterclaim, defense, or a dispute of
any kind or nature, (f) are not more than 90 days old, (g)
are payable by Persons other than any Person who is an
affiliate (as defined in accordance with GAAP) of the
Borrower and/or the Guarantor or an officer or director of
the Borrower and/or the Guarantor or an officer or director
of an affiliate of the Borrower and/or the Guarantor, (h)
are not payable by the United States of America or any
agency or department thereof (unless such Receivable has
been assigned to the Bank pursuant to a properly perfected
assignment under the Federal Assignment of Claims Act, 31
U.S.C. 3727), (i) do not by their own terms prohibit the
collateral assignment thereof or require the consent of the
obligor thereon to any collateral assignment thereof, (j) do
not arise out of a transaction with an account debtor
outside the United States of America (unless covered by a
letter of credit acceptable to the Bank), (k) are not
Receivables due by a Person from whom over 50% of its entire
accounts receivable balance with the Borrower or the
Guarantor is unpaid for more than 90 days past the invoice
date(s) related thereto, (l) are not credit balances, (m)
are not Receivables which the Bank believes, in its sole
credit judgment reasonably applied, that collection of such
Receivables is insecure or that such Receivables may not be
paid by reason of the account debtor's financial inability
to pay or that such Receivables are otherwise unacceptable
collateral, (n) are not that portion of the Receivables due
by a single Person which are in excess of 25% (but in no
event in excess of 50%) of all of the Receivables due to the
Borrower and/or the Guarantor where such Person is not rated
or is rated (by a national rating agency acceptable to the
Bank) less than BBB-; provided, the term "Qualified
Receivables" shall include all Receivables of any single
Person which would otherwise qualify as such which do not
exceed 50% of all of the Receivables of the Borrower where
such Person is rated (by a national rating agency acceptable
to the Bank) BBB- or better, and (o) commencing 90 days from
the date hereof, are owed by a Person who has either signed
an acceptance of the work giving rise to the Receivable or
signed an acceptance of the proposal for work giving rise to
the Receivable. For purposes of this Agreement, a
Receivable is 90 days old on the 90th day after the date of
the invoice evidencing such Receivable (regardless of the
due date of such invoice).
"Receivables" shall mean, with respect to such Person, all
accounts (as such term is defined in 9-106 of the UCC) of
such Person, including all indebtedness presently existing
or hereafter owing to such Person in connection with such
Person's business, profession, occupation or undertaking,
including, but not limited to, the sale of goods or the
performance of services, together with all proceeds thereof;
excluding, however, any indebtedness due to or arising out
of claims in tort and indebtedness evidenced by a promissory
note or a negotiable instrument.
"Related Documents" shall mean and include individually,
collectively, interchangeably and without limitation all
promissory notes, credit agreements, loan agreements,
guaranties, security agreements, mortgages, collateral
mortgages, deeds of trust, and all other instruments and
documents, whether now or hereafter existing, executed in
connection with the Indebtedness.
"Request for Advance" shall mean the Borrower's request for
an Acquisition Loan or a Revolving Loan, as the case may be.
"Revolving Loan Commitment" means the agreement by the Bank
to the Borrower to make Revolving Loans and to issue Credits
in accordance with the provisions of Article II hereof.
"Revolving Loans" shall mean loans made by the Bank under
the Revolving Note to the Borrower in accordance with and
subject to the terms of the Revolving Loan Commitment.
"Revolving Note" shall mean that certain promissory note
more fully described in Section 2.2.1 hereof, together with
any and all extensions, renewals, modifications, and
substitutions therefor.
"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) all UCC-1
financing statements, and related documents required by the
Bank in connection with any of the foregoing, (viii) all
amendments or modifications to any of the foregoing, and
(ix) 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.
"Solvent" shall mean, when used with respect to any Person
on a particular day, that on such date (i) the fair value of
the property of such Person is greater than the total amount
of liabilities, including without limitation, contingent
liabilities, of such person, (ii) the present fair salable
value of the assets of such person is not less than the
amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and
matured, (iii) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the
ordinary course of business, (iv) such Person does not
intend to, and does not believe that it will, incur debts
and liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (v) such Person is not
engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the
industry in which such person is engaged. In computing the
amount of contingent liabilities at any time, it is intended
that such liabilities will be computed at the amount which,
in light of all of the facts and circumstances existing at
such time, represents the amount that can be reasonably
expected to become an actual or matured liability.
"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.
"Tangible Net Worth" shall mean, at any time, the Borrower's
consolidated total assets excluding intangible assets (i.e.,
patents, copyrights, trademarks, trade names, franchises,
goodwill, organizational expenses, and similar intangible
expenses, but including leaseholds and leasehold
improvements), less the consolidated total liabilities of
the Borrower.
"Termination Date" shall mean, with respect to the Bank's
Commitments the earlier to occur of (i) January 20, 2000, or
(ii) the date of termination of the Commitments pursuant to
Article XIII hereof.
"Term Loan" shall have the meaning assigned to that term in
Section 4.1 hereof.
"Term Loan Commitment" shall have the meaning assigned to
that term in Section 4.1 hereof.
"Term Note" shall have the meaning assigned to that term in
Section 4.2 hereof.
"Tranche" shall mean a portion of any of the Loans
outstanding to the Borrower that bears interest at a
particular LIBOR Rate.
"UCC" shall mean the Uniform Commercial Code, Commercial
Laws-Secured Transactions (La. R.S. 10-9-101 et seq.) in the
State of Louisiana, as amended from time to time, provided
that if by reason of mandatory provisions of law, the
perfection or effect of perfection or non-perfection of the
Bank's Encumbrances against the Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction
other than the State of Louisiana "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction.
Section 1.2. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
GAAP, and all financial data submitted pursuant to this Agreement
shall be prepared in accordance with GAAP.
ARTICLE II
REVOLVING LOANS AND
LETTERS OF CREDIT
Section 2.1. The Revolving Loan Commitment. Subject to the
terms and conditions of this Agreement, the Bank agrees to extend
credit to the Borrower during the period from the date hereof
until the Termination Date (a) by making Revolving Loans to the
Borrower from time to time, and (b) by the Bank issuing
irrevocable standby and commercial letters of credit (said
irrevocable standby and commercial letters of credit being
referred to herein as the "Credits") for the account of the
Borrower from time to time; provided, however, that at no time
shall the sum of (1) the aggregate principal amount of Revolving
Loans to the Borrower at such time outstanding, plus (2) the
aggregate unfunded amount of Credits issued for the account of
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 Revolving Loans and Credits
issued and outstanding to the Borrower exceeds the Borrowing Base
Amount then in effect, the Borrower shall prepay the Revolving
Loans by such an amount to cause the sum of the Revolving Loans
and Credits outstanding to the Borrower to equal the Borrowing
Base Amount (or, at the option of the Bank, the Borrower may post
cash collateral to secure such deficiency in the Borrowing Base
Amount).
Section 2.2. Revolving Loans.
Section 2.2.1. Revolving Loans. Subject to the terms and
conditions of this Agreement, the Bank agrees to make Revolving
Loans to the Borrower from time to time during the period from
the date hereof to and including the Termination Date; provided,
however, that (1) no such Revolving Loan shall exceed an amount
which, when added to (i) the aggregate principal amount of all
Revolving Loans to the Borrower at such time outstanding, plus
(ii) the aggregate undisbursed amount of Credits issued for the
account of the Borrower at such time outstanding, exceeds the
Borrowing Base Amount then in effect. Within the limits set
forth herein, the Borrower may borrow from the Bank hereunder,
repay any and all such Revolving Loans as hereinafter provided
and reborrow hereunder. The Borrower's obligation to repay the
Revolving Loans made by the Bank shall be evidenced by a master
promissory note of the Borrower (said promissory note being
herein referred to as the "Revolving Note"), payable to the order
of the Bank in the principal sum of $10,000,000.00 or such other
or lesser amount as may be reflected from time to time on the on
the books and records of the Bank as evidencing the aggregate
unpaid principal balance of all Revolving Loans made to the
Borrower, with a final maturity of January 20, 2000, and bearing
interest at the rate or rates from time to time in effect
pursuant to the terms of Article VI hereof. Interest on the
Revolving Note shall be payable in accordance with the terms of
Section 6.2 hereof.
Section 2.2.2. Manner and Notice of Borrowing Under the
Revolving Loan Commitment. Requests For Advances under the
Revolving Loan Commitment may be made by the Borrower in person,
in writing (including facsimile transmission) or through
telephone calls to the Bank and such requests shall be fully
authorized by the Borrower if made by any one of the persons
designated by the Borrower in writing to the Bank. The Bank
shall have the right, but not the obligation, to verify any
telephone requests by calling the person who made the request at
the telephone number designated by the Borrower in writing to the
Bank. Requests For Advances must be received by not later than
11:00 a.m. (Central Time) on the date of the proposed advance.
Not later than the close of business on the date of such request,
assuming all conditions of this Agreement for such advance has
been satisfied, the Bank will make such advance. The amount
thereof shall be credited by the Bank to the checking account
maintained in the name of the Borrower with the Bank and the
credit advice resulting therefrom shall be mailed to the
Borrower. The Bank's copy of such credit advice indicating such
deposit to the account of the Borrower shall be deemed conclusive
evidence of the Borrower's indebtedness to the Bank in connection
with such borrowing. The aggregate outstanding amount of
principal and interest due by the Borrower at any given time
under the Revolving Loan Commitment shall be and constitute the
indebtedness of the Borrower to the Bank under the Revolving Note
made by the Borrower. When each advance is made by the Bank to
the Borrower hereunder, the Borrower shall be deemed to have
renewed and reissued its Revolving Note for the amount of the
advance plus all amounts due by the Borrower to the Bank under
the Revolving Loan Commitment immediately prior to such advance.
Section 2.2.3. Borrowings Under the Revolving Loan
Commitment. Within the limits of the Revolving Loan Commitment
to the Borrower hereunder and subject to the terms and conditions
of this Agreement, the Bank shall only be obligated to lend the
Borrower an amount which will not cause its Borrowing Base Amount
to be exceeded. During the period of the Revolving Loan
Commitment, the Borrower may use the Revolving Loan Commitment by
borrowing, prepaying and reborrowing, all in accordance with the
terms and conditions of this Agreement.
Section 2.2.4. Payment of the Revolving Note Under the
Revolving Loan Commitment. Interest on the unpaid principal
balance of the Revolving Note shall be payable in accordance with
the terms of Section 6.2 hereof. Principal shall be payable on
the Termination Date; provided, however, in the event at any time
the aggregate outstanding principal amounts of the Revolving
Loans to the Borrower, when added to the aggregate unfunded
amounts of Credits at such time outstanding to the Borrower,
causes its Borrowing Base Amount to be exceeded, the Borrower
shall immediately upon demand by the Bank prepay its Revolving
Note in an amount necessary to cause the aggregate principal
amount of its unpaid Revolving Loans plus the aggregate unfunded
amount of its Credits to equal its Borrowing Base Amount (or, at
the option of the Bank, the Borrower may post cash collateral to
secure such deficiency in its Borrowing Base Amount). The
Borrower hereby authorizes the Bank to debit the Dominion Account
to pay interest due on the Revolving Note on each Interest
Payment Date, and to credit all proceeds of the Receivables
received in the Dominion Account when collected (or earlier, if
the Bank in its sole discretion allows such funds to be available
to the Borrower prior to the date on which any checks or other
instruments given in payment of Receivables are actually
collected) towards payment of the Revolving Loans outstanding
under the Revolving Note. Further, in the event there is no
outstanding debt under the Revolving Note, the Borrower
authorizes the Bank to sweep daily the proceeds from the Dominion
Account into the Borrower's operating account with Bank. The
Bank agrees to give notice to the Borrower of any debits to the
said funding account used to pay interest within three (3)
Business Days following each such debit.
Section 2.2.5. Reserved
Section 2.2.6. Proceeds of Dominion Account. The Borrower
has executed a lockbox agreement with the Bank, pursuant to which
all checks, drafts and other instruments evidencing payment of
the Borrower's Receivables shall be delivered to the Bank and
deposited into the Borrower's Dominion Account more fully
described in Section 11.14 hereof. The Borrower hereby
authorizes the Bank to apply, on a daily basis, the proceeds of
all its accounts receivable actually collected (or, at the sole
discretion of the Bank, amounts which have been received but not
yet collected) by the Bank from the Dominion Account to reduce
the outstanding principal balance of the Revolving Loans due.
Such payments will adjust availability immediately for purposes
of loan availability and on the next day for bookkeeping and
interest purposes.
Section 2.2.7. Use of Proceeds. The Borrower shall use the
proceeds of the Revolving Loan Commitment solely to refinance
existing indebtedness incurred by Omni Geophysical and thereafter
to finance working capital requirements and general corporate
purposes of the Borrower.
Section 2.2.8. Overlines and Overadvances. Notwithstanding
the provisions of Section 2.2.1 hereof, in the event that at any
time the aggregate unpaid principal amount of the Revolving Loans
ever exceeds $10,000,000 (the maximum possible amount of the
Borrowing Base Amount), the Borrower agrees to pay the excess
amount (an "overline") immediately upon demand by the Bank. In
the event the unpaid principal amount of the Revolving Loans ever
exceeds the Borrowing Base Amount then in effect, the Borrower
agrees to pay the excess amount (an "overadvance") immediately
upon demand by the Bank. Overlines and overadvances shall bear
interest at the rate (or at the highest rate, if more than one
rate is then in effect) borne by the Revolving Note. Upon
request of the Bank, the Borrower shall execute a promissory
note, payable to the order of the Bank, to represent the amount
of any overline or overadvance; however, the Borrower
acknowledges and agrees that the records of the Bank and this
Agreement shall constitute conclusive evidence of any overline or
overadvance and the obligation of the Borrower to repay any
overline or overadvance, with interest. All overlines and
overadvances for which the Bank has not demanded payment earlier,
and all unpaid and accrued interest on overlines and overadvances
not due and payable earlier, shall be due and payable on the
Termination Date. The Borrower acknowledges and agrees that the
Bank is not obligated to the Borrower to fund any advance which
would create an overline or overadvance.
Section 2.3. The Credits.
Section 2.3.1. The Credits. Upon the written application
of the Borrower, using the form of letter of credit application
then normally required by the Bank in connection with the
issuance of such Credits (the "Credit Application"), executed by
the Borrower (or by any one of the persons designated by the
Borrower in writing to the Bank in accordance with the terms
hereof), the Bank agrees, subject to the terms and conditions of
this Agreement, that it will issue its Credit substantially in
accordance with the Credit Application. Credits may either be
commercial letters of credit, in which case they shall have an
expiry date on a Business Day not later than the earlier to occur
of the Termination Date, or standby letters of credit issued to
secure workers' compensation obligations of the Borrower (or for
other purposes deemed acceptable by the Bank in its sole
discretion), in which case they shall have an expiry date not
later than the earlier to occur of the Termination Date or one
year from the date of issuance. In no event shall a Credit be
issued by the Bank for the account of the Borrower (i) if the sum
of the face amount thereof when added to the aggregate unfunded
amount of Credits issued for the account of the Borrower then
outstanding exceeds $1,000,000.00 or (ii) if the sum of the face
amount thereof when added to the aggregate unfunded amount of
Credits issued for the account of the Borrower then outstanding
plus the aggregate principal amount of the Revolving Loans to the
Borrower at such time outstanding exceeds the Borrowing Base
Amount then in effect.
Section 2.3.2. Issuance of Credits. Each Credit shall be
issued not later than three (3) Business Days after receipt by
the Bank of the Credit Application related thereto. No later
than 12:00 noon (Central Time) on the third Business Day
following receipt of the Credit Application and upon fulfillment
of the applicable conditions set forth in this Agreement, the
Bank shall issue its Credit. The Bank may rely fully and
completely upon the authority of the signatory of the Credit
Application and the contents thereof unless such authority is
terminated by written notice delivered to the Bank, and any such
termination of authority shall be effective only prospectively.
Section 2.3.3. Credit Commission. The Borrower agrees to
pay to the Bank the standard fees charged and established by the
Bank from time to time for the issuance and processing of letters
of credit (the "Credit Commission") with respect to each Credit
created by the Bank hereunder. Payment of such Credit Commission
with respect to each Credit created by the Bank shall be paid in
advance on the date of issuance of the Credit. With respect to
standby Credits issued hereunder, the Borrower unconditionally
agrees to pay to the Bank, in addition to the Bank's standard
fees for the issuance and processing of such Credits, a
commission, payable in advance on or before the date of issuance
of each Credit, calculated at the rate of 1.50% per annum on the
face amount of each Credit, based upon the number of days of the
term of each such Credit divided by 360, which commission shall
not be less than $300.00 per standby letter of credit.
Section 2.3.4. Credit Obligations. The Borrower agrees
unconditionally to pay the Bank on demand in United States
currency at the Bank's principal office in New Orleans,
Louisiana, the amount required to pay (a) any and all drafts
drawn and any and all demands made or purported to be made under
any Credit issued for its account, (b) any and all costs,
charges, fees and/or expenses incurred or paid by the Bank in
connection with any Credit issued for its account, and (c)
interest on such amounts described above under (a) and (b) as
hereinafter provided (the "Credit Obligations"). In the event of
any drafts drawn and any and all demands made under any Credit
are payable in foreign currency, the Borrower agrees to make the
aforementioned payment to the Bank in United States currency at
the Bank's selling rate for cable transfers to the place of
payment of such draft on the date of such payment. Such
obligation of the Borrower shall be deemed a Credit Obligation
hereunder. The Borrower further agrees to comply with any and
all governmental currency exchange regulations or requirements
now or hereafter applicable to such Credit or to any drafts
related thereto. The Borrower further authorizes the Bank, at
its option, to compensate itself by applying any part or all of
the balance of any deposit account or certificate of deposit
which the Borrower may maintain with the Bank, at any time,
whether or not the deposit is mature, and/or any and all monies
or property or interest of any kind now or hereafter in the
Bank's hands, or in transit to or from the Bank, and belonging to
the Borrower, to the payment, in whole or in part, of the amount
of any draft and all interest, costs and attorney's fees which
the Borrower may owe the Bank pursuant to this Agreement. In the
event a Credit Obligation is not paid when demanded by the Bank,
the Borrower agrees to pay to the Bank on demand a sum equal to
the amount of the Credit Obligation, plus interest thereon from
the date the Credit Obligation is demanded by the Bank until paid
at the interest rate then in effect under the Revolving Note. A
payment shall not be deemed made until funds therefor have been
actually collected and made available to the Bank. Upon the
occurrence of an Event of Default hereunder, the Borrower agrees
to pay to the Bank on demand a sum equal to the aggregate
unfunded amounts of all Credits outstanding, together with
interest thereon at the Base Rate, or at any higher rate of
interest which the Bank may impose as a default rate pursuant to
the terms of the Borrower's Revolving Note issued pursuant to the
terms hereof (such obligation of the Borrower shall be deemed a
Credit Obligation as such term is used herein). Upon the
occurrence of such Event of Default, the Bank may exercise its
right of offset and compensation set forth above in this Section
2.3.4. Any amount which the Bank offsets or which the Borrower
may pay to the Bank in excess of drafts actually drawn on any
outstanding Credits, shall be held by the Bank in pledge to
secure the payment of future drafts until the Commitments to the
Borrower have been terminated, all Indebtedness of the Borrower
has been paid in full, and no further Credits issued for the
account of the Borrower are outstanding.
Section 2.3.5. Revolving Loans. In the event that Credit
Obligations owed the Bank by the Borrower are not paid when due
for any reason including Credit Obligations arising upon
occurrence of an Event of Default hereunder, notwithstanding the
limitation contained in Section 2.2.1, such Credit Obligations
shall be immediately paid by the Borrower pursuant to Revolving
Loans in the amount of such Credit Obligations. Such Credit
Obligations shall be immediately converted to Revolving Loans by
the Bank and evidenced by the Revolving Note. If at any time any
Event of Default occurs and any portion of any Credits remains
unfunded, the Borrower for whose account such Credits were issued
shall pay to the Bank in cash for application to future drawings
under the outstanding Credits, an amount equal to the aggregate
unfunded portion of the outstanding Credits. If the Borrower
does not pay such amount on demand, notwithstanding the
limitation contained in Section 2.2.1, such amount shall be
immediately paid by the Borrower by Revolving Loans to the
Borrower from the Bank. Such amount shall be immediately
converted to a Revolving Loan by the Bank and shall be evidenced
by the Revolving Note. The amount of such Revolving Loans shall
be held by the Bank in pledge securing all of the Borrower's
obligations under this Agreement, with the Borrower hereby
granting the Bank a continuing security interest in such funds as
security for the Indebtedness of the Borrower until the
Commitments have all terminated, all Indebtedness of the Borrower
has been paid in full, and no further Credits issued for the
account of the Borrower are outstanding.
Section 2.3.6. Hold Harmless. The Bank shall have the
right to deliver the Credit through any correspondents or agents
(the "Correspondents") that the Bank in its sole discretion may
choose. Except in the case of the Bank's gross negligence or
willful misconduct, the Borrower shall hold the Bank harmless
from any actions that arise out of the handling of such delivery
by the Correspondents making the delivery. The Borrower further
agrees that the Bank and any Correspondent shall not in any way
be responsible for performance by any beneficiary of obligations
to the Borrower nor for the form, validity, sufficiency,
correctness, truthfulness or genuineness of any documents
delivered in connection with any Credit, even if such documents
should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; for failure of any Credit
draft to bear any reference or correct reference to the Credit;
for errors, omissions, or delays in transmission or delivery of
any messages, whether by mail, cable, teletransmission, or
otherwise; or for any error, neglect or default of any
Correspondents. The Borrower further agrees that, if any of the
above events should occur, such event will not affect, impair or
prevent the Borrower's liability or the Bank's rights or powers
hereunder. No liability shall attach to the Bank or to the
Correspondents for any losses or damage, in consequence of
present or future laws, censorships, regulations, decrees, orders
or restrictions, right or wrongfully exercised by an de facto or
de jure government or governmental agency. Without limiting the
foregoing, and in addition to any other provision hereof, the
Bank is hereby expressly authorized and directed to honor any
request for payment which is made under and in compliance with
the terms of the Credit without regard to, and without any duty
on the Bank's part to inquire into, the existence of any disputes
or controversies between the Borrower and the beneficiary or any
other person, firm, or corporation, or the respective rights,
duties or liabilities of any of them or whether any facts or
occurrences represented in any documents presented under the
Credit are true and correct. The Borrower fully understands and
agrees that the sole obligation of the Bank to the Borrower shall
be limited to honoring requests for payment made under and in
compliance with the Credit and the obligation of the Bank remains
so limited even if the Bank may have assisted the Borrower in the
preparation of the wording of the Credit or any documents
required to be presented thereunder or if the Bank may otherwise
be aware of the underlying transaction giving rise to the Credit.
If the Bank, in its sole discretion and at the written request of
the Borrower, agrees to any change or modification to the amount
or terms of any Credit or any instrument or document related
thereto, the Borrower agrees that this Agreement shall be binding
upon it with regard to any changes or modifications and with
regard to any actions taken by the Bank or by any agents or
Correspondents relative thereto.
ARTICLE III
ACQUISITION LOANS
Section 3.1. The Acquisition Loan Commitment. Subject to
the terms and conditions of this Agreement, the Bank agrees to
extend credit to the Borrower during the period from the date
hereof until January 20, 1999 by making Acquisition Loans to the
Borrower from time to time for the account of the Borrower;
provided, however, (i) advances under the Acquisition Loan
Commitment are subject to a sublimit for geophysical equipment
purchases and loan availability limits, all as set forth in the
definition of Borrowing Base Amount applicable to the Acquisition
Loan Commitment, and (ii) that at no time shall the sum of the
aggregate principal amount of Acquisition 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 Acquisition Loans issued and outstanding
to the Borrower exceeds the Borrowing Base Amount then in effect,
the Borrower shall prepay the Acquisition Loans by such an amount
to cause the sum of the Acquisition Loans outstanding to the
Borrower to equal the Borrowing Base Amount (or, at the option of
the Bank, the Borrower may post cash collateral to secure such
deficiency in the Borrowing Base Amount). The Acquisition Loan
Commitment is a non-revolving loan commitment.
Section 3.2. Acquisition Loans.
Section 3.2.1. Acquisition Note. Subject to the terms and
conditions of this Agreement, the Bank agrees to make Acquisition
loans to the Borrower from time to time during the period of the
date hereof to January 20, 1999, provided however, that (1) no
such Acquisition Loan shall exceed an amount which, when added to
(i) the aggregate principal amount of all Acquisition Loans to
the Borrower at such time outstanding exceeds the Borrowing Base
Amount then in effect. The Borrower's obligation to repay the
Acquisition Loans made by the Bank shall be evidenced by a master
promissory note of the Borrower (said promissory note being
herein referred to as the "Acquisition Note"), payable to the
order of the Bank in the principal sum of $9,000,000.00 or such
other or lesser amount as may be reflected from time to time on
the books and records of the Bank as evidencing the aggregate
unpaid principal balance of Acquisition Loans made to the
Borrower, with a final maturity of January 20, 2000, and bearing
interest at the rate or rates from time to time in effect
pursuant to the terms of Article VI hereof. Interest on the
Acquisition Note shall be payable in accordance with the terms of
Section 6.2 hereof.
Section 3.2.2. Manner and Notice of Borrowing Under the
Acquisition Loan Commitment. Requests For Advances under the
Acquisition Loan Commitment may be made by the Borrower in
person, in writing (including facsimile transmission) or through
telephone calls to the Bank and such requests shall be fully
authorized by the Borrower if made by any one of the persons
designated by the Borrower in writing to the Bank. The Bank
shall have the right, but not the obligation, to verify any
telephone requests by calling the person who made the request at
the telephone number designated by the Borrower in writing to the
Bank. Requests For Advances must be received by not later than
11:00 a.m. (Central Time) on the date of the proposed advance.
Not later than the close of business on the date of such request,
assuming all conditions of this Agreement for such advance has
been satisfied, the Bank will make such advance. The amount
thereof shall be credited by the Bank to the checking account
maintained in the name of the Borrower with the Bank and the
credit advice resulting therefrom shall be mailed to the
Borrower. The Bank's copy of such credit advice indicating such
deposit to the account of the Borrower shall be deemed conclusive
evidence of the Borrower's indebtedness to the Bank in connection
with such borrowing. The aggregate outstanding amount of
principal and interest due by the Borrower at any given time
under the Acquisition Loan Commitment shall be and constitute the
indebtedness of the Borrower to the Bank under the Acquisition
Note made by the Borrower. When each Acquisition Loan is made by
the Bank to the Borrower hereunder, the Borrower shall be deemed
to have renewed and reissued its Acquisition Note for the amount
of the advance plus all amounts due by the Borrower to the Bank
under the Acquisition Loan Commitment immediately prior to such
advance.
Section 3.2.3. Borrowings Under the Acquisition Loan
Commitment. Within the limits of the Acquisition Loan Commitment
and subject to the terms and conditions of this Agreement, the
Bank shall only be obligated to lend the Borrower an amount which
will not cause the Borrowing Base Amount to be exceeded.
Section 3.2.4. Payment of the Acquisition Note Under the
Acquisition Loan Commitment. Interest on the unpaid principal
balance of the Acquisition Note shall be payable quarterly for
the first twelve (12) months. Thereafter, principal and interest
shall be paid quarterly based on a five (5) year straight line
amortization, with a final maturity of January 20, 2000. In the
event at any time the aggregate outstanding principal amounts of
the Acquisition Loans to the Borrower causes the Borrowing Base
Amount to be exceeded, the Borrower shall immediately upon demand
by the Bank prepay its Acquisition Note in an amount necessary to
cause the aggregate principal amount of its unpaid Acquisition
Loans to equal the Borrowing Base Amount (or, at the option of
the Bank, the Borrower may post cash collateral to secure such
deficiency in its Borrower Base Amount). The Borrower hereby
authorizes the Bank to debit the Dominion Account to pay interest
due on the Acquisition Note on each Interest Payment Date during
the first twelve (12) months. The Bank agrees to give notice to
the Borrower of any debits to the said funding account used to
pay interest within three (3) Business Days following each such
debit.
Section 3.2.5. Use of Proceeds. The Borrower shall use the
proceeds of the Acquisition Loan Commitment solely to finance
capital expenditures and acquisitions.
Section 3.2.6. Overlines and Overadvances. Notwithstanding
the provisions of Section 3.2.1 hereof, in the event that at any
time the aggregate unpaid principal amount of the Acquisition
Loans ever exceeds $9,000,000 (the maximum possible amount of the
Borrowing Base Amount), the Borrower agrees to pay the excess
amount (an "overline") immediately upon demand by the Bank. In
the event the unpaid principal amount of the Acquisition Loans
ever exceeds the Borrowing Base Amount then in effect, the
Borrower agrees to pay the excess amount (an "overadvance")
immediately upon demand by the Bank. Overlines and overadvances
shall bear interest at the rate (or at the highest rate, if more
than one rate is then in effect) borne by the Acquisition Note.
Upon request of the Bank, the Borrower shall execute a promissory
note, payable to the order of the Bank, to represent the amount
of any overline or overadvance; however, the Borrower
acknowledges and agrees that the records of the Bank and this
Agreement shall constitute conclusive evidence of any overline or
overadvance and the obligation of the Borrower to repay any
overline or overadvance, with interest. All overlines and
overadvances for which the Bank has not demanded payment earlier,
and all unpaid and accrued interest on overlines and overadvances
not due and payable earlier, shall be due and payable on the
Termination Date. The Borrower acknowledges and agrees that the
Bank is not obligated to the Borrower to fund any advance which
would create an overline or overadvance.
ARTICLE IV
TERM LOAN
Section 4.1. The Term Loan. Subject to the terms,
conditions and provisions of this Agreement, the Bank agrees to
make a term loan (the "Term Loan") to the Borrower in an amount
not to exceed $10,951,810.41 ("Term Loan Commitment").
Section 4.2. The Term Note. The Borrower's indebtedness to
the Bank pursuant to the Term Loan shall be evidenced by a
promissory note of the Borrower (said promissory note being
herein referred to as the "Term Note"), payable to the order of
the Bank in the principal sum of the amount of the Term Loan
Commitment, with a final maturity of January 20, 2000, and
bearing interest at the rate or rates from time to time in effect
pursuant to the terms of Article VI hereof the Term Note. The
Term Note shall be due and payable in quarterly installments,
based on a five (5) year straight line amortization, but with a
final maturity of January 20, 2000.
Section 4.3. Prepayments of the Term Loan. A two percent
(2%) prepayment fee shall be payable by the Borrower to the Bank
in the event the Borrower prepays the Term Loan (or any portion
thereof) within twelve (12) months from the date of this
Agreement with loan proceeds from another lender. Otherwise, the
Borrower shall have the right to prepay the Term Loan in whole or
in part at any time without payment of premium or penalty, other
than for Funding Losses incurred by the Bank as a result thereof.
Section 4.4. Proceeds. The proceeds of the Term Loan shall
be used by the Borrower to refinance the "Bridge Loan" made to
Omni Geophysical and Aviation by the Bank under the First
Restated Agreement.
ARTICLE V
FEES
Section 5.1. Commitment Fee. In addition to the Credit
fees and commissions described in Section 2.3.3 above, the
Borrower shall pay to the Bank a commitment fee of $10,792.00,
payable upon execution of this Agreement by the Borrower. The
Borrower hereby authorizes the Bank to debit its account
maintained with the Bank for collection of the fee. In addition,
the parties have entered into a letter agreement addressing
additional commitment fee matters.
Section 5.2. Unused Fee. The Borrower shall pay the Bank a
fee equal to 0.38% per annum on the unused portion of the
Revolving Loan Commitment and the Acquisition Loan Commitment,
payable quarterly in arrears, commencing April 20, 1998, and
quarterly thereafter, and on the Termination Date. The unused
portion of the Revolving Loan Commitment and the Acquisition Loan
Commitment shall be determined on a daily basis by subtracting
from $19,000,000.00 the amount of all Acquisition Loans,
Revolving Loans, and Credits outstanding, and by averaging said
daily amounts for the period for which the fee is to be
determined.
Section 5.3. Stock Option. The provisions of paragraph
3(c)(ii) of the Second Amendment to the First Restated Agreement
shall remain in effect.
ARTICLE VI
INTEREST PAYABLE ON THE LOANS
Section 6.1. Interest on the Loans. The unpaid principal
amounts of all Loans or Tranches shall bear interest at the LIBOR
Rate plus the Applicable Margin then in effect for such Loans as
determined by the Bank at the time such LIBOR Rate is determined
for any of the Loans or Tranches thereof.
Section 6.2. Payment of Interest on the Loans. Interest
on all Loans shall be payable on the last Business Day of each
quarter and on the final maturity date of each such Loan (each
such interest payment date for any Loan being herein referred to
as an "Interest Payment Date").
ARTICLE VII
CERTAIN GENERAL PROVISIONS
Section 7.1. Payments to the Bank. All payments of
principal, interest, commitment fees and any other amounts due
hereunder or under any of the other Related Documents shall be
made to the Bank at the Bank's office at 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxx 00000, or at such other location that the
Bank may from time to time designate in writing to the Borrower,
in each case in immediately available funds.
Section 7.2. No Offset, etc. All payments by the Borrower
hereunder and under any of the other Related Documents shall be
made without setoff or counterclaim and free and clear of and
without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter imposed
or levied by any jurisdiction or any political subdivision
thereof or taxing or other authority therein unless the Borrower
is compelled by law to make such deduction or withholding. If
any such obligation is imposed upon the Borrower with respect to
any amount payable by it hereunder or under any of the other Loan
Documents, the Borrower will pay to the Bank, on the date on
which such amount is due and payable hereunder or under such
other Related Document, such additional amount in Dollars as
shall be necessary to enable the Bank to receive the same net
amount which the Bank would have received on such due date had no
such obligation been imposed upon the Borrower. The Borrower
will deliver promptly to the Bank certificates or other valid
vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under
such other Loan Documents.
Section 7.3. Computations. All computations of interest on
the Loans and of commitment or other fees shall be assessed
utilizing a 360-day daily interest factor over the number of days
in an actual calendar year (365 days or 366 days in a leap year).
The Bank shall determine each interest rate applicable to the
Loans in accordance with this Agreement, and the Bank's
determination of same shall be conclusive in the absence of
manifest error. Except as otherwise provided in the definition
of the term "Interest Period", whenever a payment hereunder or
under any of the other Related Documents becomes due on a day
that is not a Business Day, the due date for such payment shall
be extended to the next succeeding Business Day, and interest
shall accrue during such extension. The outstanding amount of
the Loans as reflected on the Bank's books and records from time
to time shall be prima facie evidence of the amounts so
outstanding.
Section 7.4. Inability to Determine LIBOR Rate. In the
event, prior to the commencement of any Interest Period, the Bank
shall determine or be notified that adequate and reasonable
methods do not exist for ascertaining the LIBOR Rate that would
otherwise determine the rate of interest to be applicable to the
Loans during any Interest Period, the Bank shall forthwith give
notice of such determination (which shall be conclusive and
binding on the Borrower) to the Borrower. In such event the
Loans (or any Tranches thereof) will automatically, on the last
day of then current Interest Period applicable to such Loans or
Tranches, become a Base Rate Loan until the Bank determines that
the circumstances giving rise to such suspension no longer exist,
whereupon the Bank shall so notify the Borrower.
Section 7.5. Illegality. Notwithstanding any other
provisions herein, if any present or future law, regulation,
treaty or directive or the interpretation or application thereof
shall make it unlawful for the Bank to make available, or
maintain in effect, the LIBOR Rate, the Bank shall forthwith give
notice of such circumstances to the Borrower and thereupon any
Loans bearing interest at a LIBOR Rate shall be converted
automatically to Base Rate Loans on the last day of then current
Interest Period applicable to such Loans or within such earlier
period as may be required by law. The Borrower hereby agree
promptly to pay the Bank, upon demand by the Bank, any additional
amounts necessary to compensate the Bank for any costs incurred
by the Bank in making any conversion in accordance with this
paragraph, including any interest or fees payable by the Bank to
lenders of funds obtained by it in order to make available, or
maintain in effect, the LIBOR Rate for the Loans.
Section 7.6. Additional Costs, etc. If any present or
future applicable law, which expression, as used herein, includes
statutes, rules and regulations thereunder and interpretations
thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or
the interpretation thereof and requests, directives, instructions
and notices at any time or from time to time hereafter made upon
or otherwise issued to the Bank by any central bank or other
fiscal, monetary or other authority (whether or not having the
force of law), shall:
(1) subject the Bank to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with
respect to this Agreement, the other Related Documents or
the Indebtedness (other than taxes based upon or measured by
the revenue, income or profits of the Bank), or
(2) materially change the basis of taxation (except for
changes in taxes on revenue, income or profits) of payments
to the Bank of the principal of or the interest on the
Indebtedness of any other amounts payable to the Bank under
this Agreement or the other Related Documents, or
(3) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this
Agreement) any special deposit, reserve, assessment,
liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or
commitments of an office of the Bank, or
(4) impose on the Bank any other conditions or requirements
with respect to this Loan Agreement, the other Related
Documents, the Indebtedness, or any class of loans of which
the Indebtedness forms a part, and the result of any of the
foregoing is
(i) to increase the cost to the Bank of making,
funding, issuing, renewing, extending or maintaining
the Indebtedness or issuing Credits, or
(ii) to reduce the amount of principal, interest
or other amount payable to the Bank hereunder on
account of such the Indebtedness, or
(iii) to require the Bank to make any payment
or to forego any interest or other sum payable
hereunder, the amount of which payment or foregone
interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received
by the Bank from Borrower hereunder, then, and in each
such case, the Borrower will, upon demand made by the
Bank at any time and from time to time and as often as
the occasion therefor may arise, pay to the Bank such
additional amounts as will be sufficient to compensate
the Bank for such additional cost, reduction, payment
or foregoing interest or others sum.
Section 7.7. Capital Adequacy. If after the date hereof
the Bank determines that (a) the adoption of or change in any
law, governmental rule, regulations, policy guideline or
directive (whether or not having the force of law) regarding
capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or
governmental authority with appropriate jurisdiction, or (b)
compliance by the Bank or any corporation controlling the Bank
with any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) of any such
entity regarding capital adequacy, has the effect of reducing the
return on the Bank's Loans to a level below that which the Bank
could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's then existing policies with
respect to capital adequacy and assuming full utilization of such
entity's capital) by any amount deemed by the Bank to be
material, then the Bank may notify the Borrower of such fact.
The Borrower agrees to pay the Bank for the amount of such
reduction in the return on capital as and when such reduction is
determined upon presentation by the Bank of a certification in
accordance with Section 7.8.
Section 7.8. Certificate; Optional Right of Prepayment.
The Bank shall provide the Borrower with a certificate setting
forth any additional amounts which it declares to be payable
pursuant to Sections 7.6 and 7.7 hereof, and a complete
explanation of such amounts which are due, and each such
certificate shall be conclusive, absent manifest error, that such
amounts are due and owing. The Borrower shall have the right, at
any time within 90 days of receipt of any such certificate, to
prepay all the Loans (subject to any and all prepayment penalties
and obligations to pay Funding Losses under the terms of this
Agreement) without being obligated to pay any such additional
costs set forth in such certificate, after which the Bank shall
promptly terminate, discharge and release of record (at the
Borrowers' expense) all of its Encumbrances affecting the
Collateral and return all Collateral to the Borrower.
Section 7.9. Indemnity. The Borrower agrees to indemnify
the Bank and to hold the Bank harmless from and against any and
all Funding Losses or any other loss, cost or expense that the
Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment of the principal amount of or any interest on
any Indebtedness as and when due and payable, including any such
loss or expense arising from interest or fees payable by the Bank
to lenders of funds obtained by it in order to maintain its LIBOR
Rate in effect for the Loans, or (b) the making of any payment of
Indebtedness on a day that is not the last day of the applicable
Interest Period, including interest or fees payable by the Bank
to lenders of funds obtained by it in order to maintain its LIBOR
Rate in effect for the Loans.
ARTICLE VIII
SECURITY FOR THE INDEBTEDNESS
Section 8.1. Security. The Indebtedness shall be secured
by the following:
(a) the Security Agreements;
(b) the Mortgage;
(c) Commercial Guaranty of the Borrower's indebtedness to
the Bank by Aviation; and
(d) Commercial Guaranty of the Borrower's indebtedness to
the Bank by Omni Marine.
The Borrower understands and acknowledges that items (a) and (b)
above constitute a first priority mortgage lien or security
interest, as the case may be, in favor of the Bank.
ARTICLE IX
CONDITIONS PRECEDENT
Section 9.1. General Conditions Precedent to All Loans and
Credits. The obligation of the Bank to make any Loan or to issue
any Credit hereunder shall be subject to the satisfaction and the
continued satisfaction of the following conditions precedent:
(a) The Borrower shall have executed and delivered to the
Bank this Agreement, the Collateral Documents, the Notes and all
other documents required by this Agreement, and the Guarantor
shall have executed and delivered to the Bank this Agreement, the
Guaranty, and all other documents required by this Agreement, all
in form and substance and in such number of counterparts as may
be required by the Bank;
(b) The representations and warranties of the Borrower and
the Guarantor as set forth herein, 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 Guarantor, in form, scope and
substance satisfactory to the Bank;
(d) The Bank shall have received certified resolutions of
the Borrower and the Guarantor authorizing the execution of all
documents contemplated hereby;
(e) The Bank shall have received all fees, charges and
expenses which are due and payable as specified in this Agreement
or any Related Document;
(f) No Default or Event of Default shall exist or shall
result from the making of a Loan or the issuance of a Credit;
(g) The Borrower and the Guarantor shall have provided the
Bank with all financial statements, reports and certificates
required by this Agreement (including an initial borrowing base
certificate of the Borrower in the form required by Section
11.1(g) which is hereby required as a condition to the initial
advance of any kind to the Borrower hereunder);
(h) 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 Guarantor, 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;
(i) 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;
(j) The Borrower shall have complied with the procedure set
forth in this Agreement for the making of the particular type of
Loan then being applied for;
(k) There shall have occurred no Material Adverse Change;
(l) The Bank's due diligence and review of all financial
information provided by the Borrower and the Guarantor, and the
Bank's field audit of the Borrower's books and records, shall be
satisfactory to the Bank;
(m) The Bank's receipt of satisfactory evidence of the
prepayment of senior and subordinated indebtedness of the
Borrower and the Guarantor. In the event all such debt is not
prepaid, the outstanding amount thereof will reduce (dollar for
dollar) the $10,500,000.00 limit specified in Section 12.5(d)
below, and the Bank's receipt, if applicable, of a subordination
agreement affecting such debt. The Bank reserves the right to
allow the Borrower a period of sixty (60) days (from the date of
this Agreement) to obtain any necessary subordination agreement;
(n) The Bank's receipt of a current listing of all senior
and subordinated debt of the Borrower (on a consolidated basis);
(o) The Bank's receipt of a current balance sheet of the
Borrower; and
(p) The Bank's receipt of satisfactory evidence that the
Borrower received not less than $35,000,000.00 in proceeds from
its recent initial public offering.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
The Borrower and the Guarantor represent and warrant to the
Bank as follows:
Section 10.1. Corporate Authority. Each Borrower is a
corporation duly created, validly existing and in good standing
under the laws of its state of Louisiana, and is duly qualified
and in good standing as a foreign corporation in all other
jurisdictions where the failure to qualify would have an adverse
effect upon its ability to perform its obligations under this
Agreement and all Related Documents. The Borrower has the power
to enter into this Agreement, issue the Notes, mortgage and grant
the liens and security interests in the Collateral in the manner
and for the purpose contemplated by the Collateral Documents.
The Borrower has the corporate power to perform its obligations
hereunder and under the Related Documents. The making and
performance by the Borrower of the Related Documents have all
been duly authorized by all necessary company action (including
all necessary member action), and do not and will not violate any
provision of any law, rule, regulation, order, writ, judgment,
decree, determination or award presently in effect having
applicability to the Borrower or the articles of incorporation
and/or bylaws of the Borrower. The making and performance by the
Borrower of the Related Documents to which it is a party do not
and will not result in a breach of or constitute a default under
any indenture or loan or credit agreement or any other agreement
or instrument to which the Borrower is a party or by which it may
be bound or affected, or result in, or require, the creation or
imposition of any mortgage, deed of trust, pledge, lien, security
interest or other charge or encumbrance of any nature (other than
as contemplated by the Related Documents) upon or with respect to
any of the properties now owned or hereafter acquired by the
Borrower, and the Borrower is not in default under or in
violation of any such order, writ, judgment, decree,
determination, award, indenture, agreement or instrument. Each
of the Related Documents to which the Borrower is a party
constitutes a legal, valid and binding obligations of the
Borrower, enforceable in accordance with its terms. Omni Marine
is a corporation duly created, validly existing, and in good
standing under the laws of the State of Louisiana. Omni Marine's
execution of this Agreement, the Guaranty, and the Collateral
Documents to which it is a party, has been authorized by all
necessary corporate action, and each such document constitutes a
legal, valid, and binding obligation of Omni Marine, enforceable
in accordance with its terms. Aviation is a limited liability
company duly created, validly existing, and in good standing
under the laws of the State of Missouri. Aviation is registered
to do business in the State of Louisiana. Aviation's execution
of this Agreement, the Guaranty, and the Collateral Documents to
which it is a party, has been authorized by all necessary action,
and each such document constitutes a legal, valid, and binding
obligation of Aviation, enforceable in accordance with its terms.
Section 10.2. Financial Statements. The balance sheet of
the Borrower at the date thereof, and the related statements of
income and retained earnings for the year then ended, copies of
which have been delivered to the Bank, are complete and correct
and fairly present the financial condition of such entities as of
the date or dates thereof. Each of said financial statements
were prepared in conformity with GAAP applied on a basis
consistent with the preceding year. No Material Adverse Change
has occurred since said dates in the financial position or in the
results of operations of the Borrower in their businesses taken
as a whole.
Section 10.3. Title to Collateral. The Borrower or the
Guarantor, as applicable, has good and marketable title to the
Collateral, free and clear of all Encumbrances other than
Permitted Encumbrances. The Collateral Documents constitute
legal, valid and perfected first Encumbrances on the property
interests covered thereby, subject only to Permitted
Encumbrances.
Section 10.4. Litigation. Other than as has been disclosed
previously to the Bank in writing, there are no legal actions,
suits or proceedings pending or threatened against or affecting
the Borrower, the Guarantor, or any of their properties before
any court or administrative agency (federal, state or local),
which, if determined adversely to any of the Borrower or the
Guarantor would constitute a Material Adverse Change to any of
them, and there are no judgments or decrees affecting the
Borrower or its property (including, without limitation, the
Collateral) which are or may become an Encumbrance against such
property.
Section 10.5. Approvals. No authorization, consent,
approval or formal exemption of, nor any filing or registration
with, any governmental body or regulatory authority (federal,
state or local), and no vote, consent or approval of the members
of the Borrower is or will be required in connection with the
execution and delivery by the Borrower of the Related Documents
or the performance by the Borrower of its obligations hereunder
and under the other Related Documents.
Section 10.6. Required Insurance. The Borrower and the
Guarantor shall maintain insurance with insurance companies in
such amounts and against such risks as is usually carried by
owners of similar businesses and properties in the same general
areas in which each of them operates, and as shall be reasonably
satisfactory to the Bank, in each case with the Bank named as the
loss payee and/or additional insured, as appropriate. Aviation
shall also carry such insurance coverages as may be required by
the Aircraft Security Agreement.
The Borrower and the Guarantor agree to provide the Bank
with originals or certified copies of such policies of insurance.
The Borrower and the Guarantor further agree to promptly furnish
the Bank with copies of all renewal notices and, if requested by
the Bank, with copies of receipts for paid premium. The Borrower
and the Guarantor shall provide the Bank with originals or
certified copies of all renewal or replacement policies of
insurance no later than fifteen (15) days before any such
existing policy or policies should expire. If the Borrowers'
and/or the Guarantor's insurance policies required hereunder and
renewals thereof are held by another person, the Borrower and the
Guarantor agree to supply original or certified copies of the
same to the Bank within the time periods required above.
Section 10.7. Licenses. The Borrower and the Guarantor
possess adequate franchises, licenses and permits to own its
properties and to carry on their business as presently conducted.
Section 10.8. Adverse Agreements. The Borrower and the
Guarantor are not parties to any agreement or instrument, nor
subject to any charter or other restriction, materially and
adversely affecting the business, properties, assets, or
operations of the Borrower or the Guarantor or its/their
condition (financial or otherwise), and the Borrower and the
Guarantor are not in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which they are a
party, which default would constitute a Material Adverse Change.
Section 10.9. Default or Event of Default. No Default or
Event of Default hereunder has occurred or is continuing or will
occur as a result of the giving effect hereto.
Section 10.10. Employee Benefit Plans. Each employee
benefit plan as to which the Borrower may have any liability
complies in all material respects with all applicable
requirements of law and regulations, and (i) no Reportable Event
(as defined in ERISA) has occurred with respect to any such plan,
(ii) the Borrower has not withdrawn from any such plan or
initiated steps to do so, and (iii) no steps have been taken to
terminate any such plan.
Section 10.11. Investment Company Act. The Borrower is not
an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment
Company Act of 1940, as amended.
Section 10.12. Public Utility Holding Company Act. The
Borrower is not a "holding company," or a "subsidiary company" of
a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 10.13. Regulations G, T and U. The Borrower is not
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations G, T and
U of the Board of Governors of the Federal Reserve System), and
none of the proceeds of the Loans will be used for the purpose of
purchasing or carrying such margin stock.
Section 10.14. Location of Offices, Records, Equipment and
Inventory. The chief place of business of the Omni Marine, and
the office where the Omni Marine keeps its records concerning the
Collateral, is 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx
00000. The chief place of business of Aviation, and the office
where Aviation keeps its records concerning the Collateral, is
000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. The chief place
of business of the Borrower, and the office where the Borrower
keeps all of its records concerning the Collateral, is 0000 X.X.
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxx 00000.
Section 10.15. Information. All information heretofore or
contemporaneously herewith furnished by the Borrower and the
Guarantor to the Bank for the purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all
information hereafter furnished by or on behalf of the Borrower
and the Guarantor to the Bank will be, true and accurate in every
material respect on the date as of which such information is
dated or certified; and none of such information is or will be
incomplete by omitting to state any material fact necessary to
make such information not misleading.
Section 10.16. Environmental Matters. Except as may have
been disclosed in writing to the Bank prior to the date hereof,
no properties of the Borrower has ever been, nor will ever be so
long as this Agreement remains in effect, used for the
generation, manufacture, storage, treatment, disposal, release or
threatened release of any hazardous waste or substance, as those
terms are defined in the Environmental Laws, except in compliance
with such Environmental Laws. Except as may have been disclosed
in writing by the Borrower to the Bank, the Borrower represents
and warrants that it is in material compliance with all
Environmental Laws affecting it and its properties.
No friable asbestos, or any substance containing asbestos
deemed hazardous by federal or state regulations on the date of
this Agreement, has been installed in or on any of the property
comprising the Collateral. The said property and the Borrower
are not in violation of or subject to any existing, pending, or
threatened investigation or inquiry by any governmental authority
or to any remedial obligations under any applicable laws
pertaining to health or the environment (hereinafter sometimes
collectively called "Applicable Environmental Laws"), including
without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (as amended,
hereinafter called "CERCLA"), the Resource Conservation and
Recovery Act of 1976, as amended by the Used Oil Recycling Act of
1980, the Solid Waste Disposal Act Amendments of 1980, and the
Hazardous and Solid Waste Amendments of 1984 (as amended,
hereinafter called "RCRA"), and this representation and warranty
would continue to be true and correct following disclosure to the
applicable governmental authorities of all relevant facts,
conditions and circumstances, if any, pertaining to the said
property and known to the Borrower. The Borrower has not
obtained and is not required to obtain any permits, licenses or
similar authorizations to construct, occupy, operate or use any
buildings, improvements, fixtures and equipment forming a part of
the said property by reason of any Applicable Environmental Laws.
No hazardous substances or solid wastes have been disposed of or
otherwise released on or to the said property. The use which the
Borrower makes and intends to make of the said property will not
result in the disposal or other release of any hazardous
substance or solid waste on or to the said property. The terms
"hazardous substance" and "release" as used in this Agreement
shall have the meanings specified in CERCLA, and the terms "solid
waste" and "disposal" (or "disposed") shall have the meanings
specified in RCRA, provided, however, in the event that the laws
of the State of Louisiana establish a meaning for "hazardous
substance," "release," "solid waste," or "disposal" which is
broader than that specified in either CERCLA or RCRA, such
broader meaning shall apply.
Section 10.17. Solvency of the Borrower and the Guarantor.
The Borrower and the Guarantor are, and after consummation of the
transactions contemplated by this Agreement (including the making
of the Loans and the issuance of the Credits), and after giving
effect to all obligations incurred by the Borrower and the
Guarantor in connection herewith, will be, Solvent.
Section 10.18. Governmental Requirements. The Collateral is
in compliance with all current governmental requirements
affecting the said property.
Section 10.19. Existing Lease. The Borrower, as the
successor-by-merger to Omni Geophysical, represents and warrants
that it has a lease affecting its present business location
located on I-49 North in Lafayette Parish, Louisiana which
extends through June of 1998.
Section 10.20. Survival of Representations and Warranties.
The Borrower and the Guarantor understand and agree that the Bank
is relying upon the above representations and warranties in
making the Loans to the Borrower. The Borrower and the Guarantor
further agree that the foregoing representations and warranties
shall be continuing in nature and shall remain in full force and
effect until such time as the Indebtedness shall be paid in full,
or until this Agreement shall be terminated, whichever is the
last to occur.
ARTICLE XI
AFFIRMATIVE COVENANTS
In addition to the covenants contained in the Collateral
Documents, which covenants are hereby ratified and confirmed by
the Borrower and the Guarantor, as the case may be, the Borrower
and the Guarantor covenant and agree as follows:
Section 11.1. Financial Statements. The Guarantor and the
Borrower will furnish or cause to be furnished to the Bank:
(a) as soon as available and in any event within one
hundred twenty (120) days following the close of fiscal
year of the Borrower, audited, consolidated and
consolidating financial statements of the Borrower
consisting of a balance sheet as at the end of such
fiscal year and statements of income, and statement of
cash flow for such fiscal year, setting forth in each
case in comparative form the corresponding figures for
the preceding fiscal year, certified by independent
certified public accountants of recognized standing
acceptable to the Bank,
(b) as soon as available and in any event within one
hundred twenty (120) days following the close of fiscal
year of Omni Marine, Aviation, and any other Subsidiary
of the Borrower, audited financial statements of Omni
Marine, Aviation, and any other Subsidiary of the
Borrower consisting of a balance sheet as at the end of
such fiscal year and statements of income, and
statement of cash flow for such fiscal year, setting
forth in each case in comparative form the
corresponding figures for the preceding fiscal year,
certified by independent certified public accountants
of recognized standing acceptable to the Bank,
(c) within forty-five (45) days following the end of each
calendar quarter, financial statements consisting of
the consolidated balance sheet of the Borrower as of
the end of such quarter, and a statement of income and
statement of cash flow of the Guarantor for such
quarter and for the fiscal year through such quarter,
all certified as materially true and correct by the
chief financial officer of the Borrower as having been
prepared in accordance with GAAP consistently applied,
(d) within forty-five (45) days following the end of each
calendar quarter, financial statements consisting of
the balance sheet of Omni Marine, Aviation, and any
other Subsidiary of the Borrower as of the end of such
quarter, and a statement of income and statement of
cash flow for such quarter and for the fiscal year
through such quarter, all certified as materially true
and correct by the chief financial officer of Omni
Marine, Aviation, and any other Subsidiary of the
Borrower as having been prepared in accordance with
GAAP consistently applied,
(e) within sixty (60) days after the end of each calendar
quarter, a certificate signed by the chief financial
officer of the Borrower, certifying that he has
reviewed this Agreement and to the best of his
knowledge no Default or Event of Default has occurred,
or if such Default or Event of Default has occurred,
specifying the nature and extent thereof, and that all
financial covenants in this Agreement have been met,
and providing a computation of all financial covenants
contained herein, and details of any waivers,
amendments, or modifications of any covenant contained
in this Agreement,
(f) within fifteen (15) days following the end of each
calendar month, 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 of the
Borrower 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,
(g) within fifteen (15) days following the end of each
calendar month, and not less than weekly during each
calendar month, and at any time upon the request by the
Bank, a borrowing base certificate showing the
Borrower's total Receivables, minus ineligibles, total
Qualified Receivables, in form and substance acceptable
to the Bank, accompanied by such supporting documents
as may be required by the Bank, with the Borrower's
borrowing base certificate to be certified by the chief
financial officer(s) of the Borrower, and
(h) such other necessary financial information concerning
the Borrower and the Guarantor as the Bank may
reasonably request from time to time.
Section 11.2. Notice of Default; Litigation; ERISA Matters.
The Borrower will give written notice to the Bank as soon as
reasonably possible and in no event more than five (5) Business
Days of (i) the occurrence of any Default or Event of Default
hereunder of which it has knowledge or should have knowledge,
(ii) the filing of any actions, suits or proceedings against the
Borrower in any court or before any governmental authority or
tribunal of which they have knowledge or should have knowledge
which could cause a Material Adverse Change with respect to the
Borrower and/or the Guarantor, (iii) the occurrence of a
reportable event under, or the institution of steps by the
Borrower to withdraw from, or the institution of any steps to
terminate, any employee benefit plan as to which the Borrower may
have liability, or (iv) the occurrence of any other action, event
or condition of any nature of which they have knowledge which may
cause, or lead to, or result in, any Material Adverse Change to
the Borrower and/or the Guarantor.
Section 11.3. Maintenance of Existence, Properties and
Liens. Each of the Borrower and the Guarantor will (i) continue
to engage in the business presently being operated by it; (ii)
maintain its existence and good standing in each jurisdiction in
which it is required to be qualified; (iii) keep and maintain all
franchises, licenses and properties necessary in the conduct of
its business in good order and condition; (iv) duly observe and
conform to all material requirements of any governmental
authorities relative to the conduct of its business or the
operation of its properties or assets; and (v) maintain in favor
of the Bank a first perfected lien and security interest in the
Collateral, subject only to other Permitted Encumbrances.
Section 11.4. Collateral Schedules and Locations. As often
as the Bank shall reasonably require, the Borrower and the
Guarantor shall deliver to the Bank schedules of such Collateral,
including such information as the Bank may require, including
without limitation names and addresses of account debtors and
agings of Receivables and General Intangibles.
Section 11.5. Taxes. Each of the Borrower and the
Guarantor shall pay or cause to be paid when due, all taxes,
local and special assessments, and governmental and other charges
of every type and description, that may from time to time be
imposed, assessed and levied against it or its properties. The
Borrower and the Guarantor further agree to furnish the Bank with
evidence that such taxes, assessments, and governmental and other
charges due by the Borrower and the Guarantor have been paid in
full and in a timely manner. The Borrower and/or the Guarantor
may withhold any such payment or elect to contest any lien if the
Borrower and/or the Guarantor are in good faith conducting an
appropriate proceeding to contest the obligation to pay and so
long as the Bank's interest in the Collateral is not jeopardized.
Section 11.6. Performance of Loan Documents. The Borrower
and the Guarantor shall duly and punctually pay and perform each
of its obligations under the Notes, under this Agreement (as the
same may at any time be amended or modified and in effect) and
under each of the Related Documents to which it is a party, in
accordance with the terms hereof and thereof.
Section 11.7. Compliance with Environmental Laws. The
Borrower shall comply with and shall cause all of its employees,
agents, invitees or sublessees to comply with all Environmental
Laws with respect to the disposal of industrial refuse or waste,
and/or the discharge, procession, treatment, removal,
transportation, storage and handling of hazardous or toxic wastes
and substances, and pay immediately when due the cost of removal
of any such waste or substances from, and keep their properties
free of any lien imposed pursuant to any such laws, rules,
regulations or orders.
The Borrower shall give notice to the Bank as soon as
reasonably possible and in no event more than five (5) days after
it receives any compliance orders, environmental citations, or
other notices from any governmental entity relating to any
environmental condition relating to its properties or elsewhere
for which it may have legal responsibility with a full
description thereof; the Borrower agrees to take any and all
reasonable steps, and to perform any and all reasonable actions
necessary or appropriate to promptly comply with any such
citations, compliance orders or Environmental Laws requiring the
Borrower to remove, treat or dispose of such hazardous materials,
wastes or conditions at the sole expense of the Borrower, to
provide the Bank with satisfactory evidence of such compliance;
provided, however, that nothing contained herein shall preclude
the Borrower from contesting any such compliance orders or
citations if such contest is made in good faith, appropriate
reserves are established for the payment for the cost of
compliance therewith, and the Bank's security interest in any
such property affected thereby (or the priority thereof) is not
jeopardized.
Regardless of whether any Event of Default hereunder shall
have occurred and be continuing, the Borrower (i) releases and
waives any present or future claims against the Bank for
indemnity or contribution in the event the Borrower becomes
liable for remediation costs under and Environmental Laws, and
(ii) agrees to defend, indemnify and hold harmless the Bank from
any and all liabilities (including strict liability), actions,
demands, penalties, losses, costs or expenses (including, without
limitation, reasonable attorneys fees and remedial costs), suits,
administrative orders, agency demand letters, costs of any
settlement or judgment and claims of any and every kind
whatsoever which may now or in the future (whether before or
after the termination of this Agreement) be paid, incurred, or
suffered by, or asserted against the Bank by any person or entity
or governmental agency for, with respect to, or as a direct or
indirect result of, the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, or release from
or onto the property of the Borrower of any hazardous materials,
wastes or conditions regulated by any Environmental Laws,
contamination resulting therefrom, or arising out of, or
resulting from, the environmental condition of such property or
the applicability of any Environmental Laws relating to hazardous
materials (including, without limitation, CERCLA or any so called
federal, state or local "super fund" or "super lien" laws,
statute, ordinance, code, rule, regulation, order or decree)
regardless of whether or not caused by or within the control of
the Bank (the costs and/or liabilities described in (i) and (ii)
above being hereinafter referred to as the "Liabilities"). The
covenants and indemnities contained in this Section 11.7 shall
survive termination of this Agreement.
Section 11.8. Further Assurances. The Borrower and the
Guarantor will, at any time and from time to time, execute and
deliver such further instruments and take such further action as
may reasonably be requested by the Bank, in order to cure any
defects in the execution and delivery of, or to comply with or
accomplish the covenants and agreements contained in this
Agreement or the Collateral Documents.
Section 11.9. Financial Covenants. The Borrower shall
comply with the following covenants and ratios:
(a) The Borrower shall maintain on a consolidated, calendar
quarterly basis, a debt service coverage ratio of at
least 1.25 to 1.0. The term "debt service coverage"
means the sum of net income before interest, taxes,
depreciation, and amortization, less dividends, to
current maturities of long term debt plus total
interest expense. EBITDA shall be calculated on a
rolling four quarters basis.
(b) The Borrower shall not allow (on a consolidated basis)
a ratio of Funded Debt divided by Tangible Net Worth to
exceed 1.00 to 1.00 at any time.
(c) The Borrower shall at all times maintain working
capital (on a consolidated basis) of greater than
$1,000,000.00. For the purposes hereof, "working
capital" shall mean total consolidated current assets
(including availability under the Revolving Loan
Commitment) less total consolidated current
liabilities.
(d) The Borrower shall maintain at all times, on a
consolidated basis, a Funded Debt to EBITDA ratio of
not more than 3.5 to 1.0. EBITDA shall be calculated
on a trailing four quarters basis.
Section 11.10. Operations. The Borrower and the Guarantor
shall conduct their business affairs in a reasonable and prudent
manner and in compliance with all applicable federal, state and
municipal laws, ordinances, rules and regulations respecting
their properties, charters, businesses and operations, including
compliance with all minimum funding standards and other
requirements of ERISA of 1974, and other laws applicable to any
employee benefit plans which they may have.
Section 11.11. Change of Location. The Borrower and the
Guarantor shall, within ten (10) Business Days prior to any such
addition or change, notify the Bank in writing of any proposed
additions to or changes in the location of their respective
businesses.
Section 11.12. Employee Benefit Plans. So long as this
Agreement remains in effect, the Borrower and the Guarantor will
maintain each employee benefit plan as to which they may have any
liability, in compliance with all applicable requirements of law
and regulations
Section 11.13. Deposit Accounts. The Borrower, the
Guarantor, and any Subsidiary of the Borrower, will maintain all
substantial deposit and operating accounts (including separate
tenant deposit accounts) with the Bank.
Section 11.14. Dominion Account. The Borrower has
established a lockbox with the Bank into which all proceeds of
Receivables of the Borrower shall be remitted. The Borrower will
promptly direct its customers to remit payments of all of their
accounts receivable to such lockbox. Remittances received under
the lockbox arrangement will be deposited by the Bank to the
demand deposit account maintained by the Borrower with the Bank
(the "Dominion Account", account number 812378643). The Bank
shall have dominion over all funds in the Dominion Account. The
Borrower shall deposit all payments of accounts receivable which
are not remitted by customers directly to the Dominion Account
into the Dominion Account on the date such remittance is
received. Amounts deposited into the Dominion Account will be
used for daily loan payments towards the Revolving Note as
described in Section 2.2.6. The Borrower will have no access to
any funds in the Dominion Account for so long as this Agreement
remains in effect, the Revolving Note has not been paid in full,
or any Credits or other Indebtedness of the Borrower remains
outstanding.
Section 11.15. Field Audits; Other Information. Each of
the Borrower and the Guarantor shall allow the Bank's employees
and agents access to their books and records and properties
during normal business hours to perform field audits from time to
time. The Borrower shall pay all costs and expenses associated
with such field audits. The Borrower and the Guarantor will
provide the Bank with such other information as the Bank may
reasonably request from time to time.
Section 11.16. Ownership of Aviation and Omni Marine. The
Borrower and the Guarantor covenant and agree that the Borrower
shall continue to own 100% of the membership interests of
Aviation and 100% of the issued and outstanding stock of Omni
Marine.
Section 11.17. Sale of Collateral. In the event the
Borrower or any Guarantor sells any equipment or any other
tangible asset that is part of the Collateral, the Borrower and
the Guarantor agree to pay down the Term Loan immediately after
such sale by the following amount: (i) if the item is sold for
market value, the pay down must be equal to said market value;
(ii) if the item is sold for greater than market value, the pay
down must be at least equal to market value; or (iii) if the item
is sold for less than market value, the pay down must be at least
equal to market value.
Section 11.18. Survey. The Borrower agrees to provide the
Bank within thirty (30) days from January 20, 1998, with a final
as built survey of the property encumbered by the Mortgage, in
form and substance satisfactory to the Bank that will enable the
Bank to obtain an endorsement to the Bank's loan policy.
ARTICLE XII
NEGATIVE COVENANTS
In addition to the negative covenants contained in the
Collateral Documents, which covenants are hereby ratified and
confirmed by the Borrower and the Guarantor, as the case may be,
the Borrower and the Guarantor covenant and agree as follows:
Section 12.1. Limitations on Fundamental Changes. The
Borrower and the Guarantor shall not change the nature of their
business, grant credit terms to its customers on terms different
than those presently granted to customers, or form any subsidiary
without the prior written consent of the Bank, nor shall the
Borrower or the Guarantor enter into any transaction of merger or
consolidation, or liquidate or dissolve itself (or suffer any
liquidation or dissolution).
Section 12.2. Disposition of Assets. The Borrower and the
Guarantor shall not convey, sell, lease, assign, transfer or
otherwise dispose of, any of its property, business or assets
(whether now owned or hereafter acquired) that has a value of
$2,000,000 or more without the prior written consent of the Bank.
Proceeds of any permitted asset disposition must be based on an
arm's length transaction at market rates, and must be used to
reduce the Term Loan.
Section 12.3. Restricted Payments. The Borrower shall not
declare or pay (or set aside reserves for payment of) any
dividends or distributions, make any shareholder or affiliate
loans, or pay excessive compensation or enter into any similar
transactions with the shareholders, officers, or affiliates of
the Borrower without the prior written consent of the Bank. The
term "excessive compensation" as used in this Section 12.3, means
compensation in excess of three times total current salary for
the Borrower's senior management, which total current salary is
approximately $675,000.00. Further, any increase in compensation
to shareholders, officers or affiliates of Borrower is prohibited
unless, after giving effect to such increase, the Borrower is in
compliance with all covenants contained in this Agreement,
including financial covenants.
Section 12.4. Encumbrances. The Borrower and the Guarantor
shall not create, incur, assume or permit to exist any
Encumbrances on any of their property now owned or hereafter
acquired, except for the following (hereinafter referred to as
the "Permitted Encumbrances"):
(a) Encumbrances for taxes, assessments, or other
governmental charges not yet due or which are being
contested in good faith by appropriate action promptly
initiated and diligently conducted, if such reserves as
shall be required by GAAP shall have been made
therefor;
(b) Encumbrances of landlords, vendors, carriers,
warehousemen, mechanics, laborers and materialmen
arising by law in the ordinary course of business for
sums either not yet due or being contested in good
faith by appropriate action promptly initiated and
diligently conducted, if such reserve as shall be
required by GAAP shall have been made therefor;
(c) Inchoate liens arising under ERISA to secure the
contingent liabilities, if any, permitted by this
Agreement;
(d) The Collateral Documents and any other liens in favor
of the Bank to secure the Indebtedness of the Borrower
to the Bank; or
(e) Liens in favor of The CIT Group/Equipment Financing,
Inc. existing as of the day of this Agreement.
Section 12.5. Debts, Guaranties and Other Obligations. The
Borrower and the Guarantor will not incur, create, assume or in
any manner become or be liable in respect of any Debt direct or
contingent, except for:
(a) The Indebtedness to the Bank under this Agreement;
(b) Trade payables or operating and facility leases from
time to time incurred in the ordinary course of
business;
(c) Taxes, assessments or other government charges which
are not yet due or are being contested in good faith by
appropriate action promptly initiated and diligently
conducted, if such reserve as shall be required by
generally accepted accounting principles shall have
been made therefor; or
(d) Additional Debt up to $10,500,000.00. The term
"Additional Debt" shall mean the consolidated debt of
the Borrower and the Guarantor, including senior and
subordinated debt, but excluding the Indebtedness.
Section 12.6. Investments, Loans and Advances. The
Borrower and the Guarantor will not make or permit to remain
outstanding any loans or advances to or investments in any
Person, except for:
(a) Investments in direct obligations of the United States
of America or any agency thereof;
(b) Investments in either certificates of deposit of
maturities less than one year, issued by the Bank, or
if the Bank is not substantially competitive (in terms
of certificate of deposit interest rate for comparable
amounts) with other banks (having a credit rating
acceptable to the Bank) certificates of deposit of
maturities less than one year, issued by one or more of
such other banks;
(c) Investments in commercial paper of maturities less than
one year with the best rating by Standard & Poors,
Xxxxx'x Investors Service, Inc., or any other rating
agency satisfactory to the Bank;
(d) Routine advances to employees made in the ordinary
course of business;
(e) Investments in the stock of domestic corporations (who
conduct their business in the United States) up to the
sum of $5,000,000.00 in the aggregate; and
(f) Investment in the stock of American Aviation, Inc. or
in a new subsidiary formed to acquire the assets of
American Aviation, Inc.
Section 12.7. Changes in Management and Control. The
senior management of the Borrower will not change without the
prior written consent of the Bank, and Xxxxx Xxxxxxxxx will
remain as the Chairman of the Board of the Borrower until at
least June 30, 2003.
Section 12.8. Other Agreements. The Borrower and the
Guarantor will not enter into any agreement containing any
provision which would be violated or breached by the performance
of its obligations hereunder or under any instrument or document
delivered or to be delivered by any of them hereunder or in
connection herewith.
Section 12.9. Transactions with Affiliates. The Borrower
and the Guarantor will not enter into any agreement with any
affiliate except to the extent that such agreements are
commercially reasonable which provide for terms which would
normally be obtainable in an arm's length transaction with an
unrelated third party.
Section 12.10. Minimum Amount in Dominion Account. The
Borrower will maintain a minimum balance of $10,000.00 in the
Dominion Account.
ARTICLE XIII
EVENTS OF DEFAULT
Section 13.1. Events of Default. The occurrence of any one
or more of the following shall constitute an Event of Default:
Default under the Indebtedness. Should the Borrower default
in the payment of principal or interest under the Indebtedness of
the Borrower.
Default under this Agreement. Should the Borrower or the
Guarantor violate or fail to comply fully with any of the terms
and conditions of, or default under, this Agreement, and such
default not be cured within ten days of the occurrence thereof
(provided, however, that no cure period shall be available for a
default in the obligation to maintain insurance coverages
required hereby).
Default Under Other Agreements. Should any event of default
occur or exist under any of the Related Documents or should the
Borrower or the Guarantor violate, or fail to comply fully with,
any terms and conditions of any of the Collateral Documents or
Related Documents, and such default not be cured within ten days
of the occurrence thereof (provided, however, that no cure period
shall be available for a default in the obligation to maintain
insurance coverages required thereby).
Other Defaults in Favor of the Bank. Should the Borrower
default under any other loan, extension of credit, security
agreement, or other obligation in favor of the Bank and fail to
cure same in accordance with any applicable cure periods.
Default in Favor of Third Parties. Should the Borrower or
the Guarantor default under any loan, extension of credit,
security agreement, purchase or sales agreement, or any other
agreement, in favor of any other creditor or person and fail to
cure same in accordance with any applicable cure periods.
Insolvency. The following occurrences, in addition to the
failure or suspension of either the Borrower or the Guarantor,
shall constitute an Event of Default hereunder:
(a) Filing by the Borrower or either Guarantor of a
voluntary petition or any answer seeking
reorganization, arrangement, readjustment of its debts
or for any other relief under any applicable bankruptcy
act or law, or under any other insolvency act or law,
now or hereafter existing, or any action by the
Borrower or either Guarantor consenting to, approving
of, or acquiescing in, any such petition or proceeding;
the application by the Borrower or either Guarantor
for, or the appointment by consent or acquiescence of,
a receiver or trustee of the Borrower or either
Guarantor for all or a substantial part of the property
of any such Person; the making by the Borrower or
either Guarantor, of an assignment for the benefit of
creditors; the inability of the Borrower or either
Guarantor or the admission by the Borrower or either
Guarantor in writing, of its inability to pay its debts
as they mature (the term "acquiescence" means the
failure to file a petition or motion in opposition to
such petition or proceeding or to vacate or discharge
any order, judgment or decree providing for such
appointment within sixty (60) days after the
appointment of a receiver or trustee); or
(b) Filing of an involuntary petition against the Borrower
or either Guarantor in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts
or for any other relief under any applicable bankruptcy
act or law, or under any other insolvency act or law,
now or hereafter existing and such petition remains
undismissed or unanswered for a period of sixty (60)
days from such filing; or the insolvency appointment of
a receiver or trustee of the Borrower or either
Guarantor for all or a substantial part of the property
of such Person and such appointment remains unvacated
or unopposed for a period of sixty (60) days from such
appointment, execution or similar process against any
substantial part of the property of the Borrower or
either Guarantor and such warrant remains unbonded or
undismissed for a period of sixty (60) days from notice
to the Borrower or either Guarantor of its issuance.
Dissolution Proceedings. Should proceedings for the
dissolution or appointment of a liquidator of the Borrower or
either Guarantor be commenced.
False Statements. Should any representation or warranty of
either the Borrower or the Guarantor made in connection with the
Indebtedness prove to be incorrect or misleading in any material
respect when made or reaffirmed.
Material Adverse Change. Should a Material Adverse Change
with respect to either the Borrower or the Guarantor occur at any
time and not be cured within ten days of the occurrence thereof.
Upon the occurrence of an Event of Default, all Commitments
of the Bank under this Agreement will terminate immediately
(including any obligation to make any further Revolving Loans
and/or Acquisition Loans, to issue any further Credits to or for
the account of any Borrower or to fund the Term Loan), and, at
the Bank's option, the Notes and all Indebtedness of the Borrower
will become immediately due and payable, all without notice of
any kind to the Borrower or the Guarantor, except that in the
case of type described in the "Insolvency" subsection above, such
acceleration shall be automatic and not optional.
Upon the occurrence of an Event of Default, the Bank may
proceed to realize upon the Collateral under the terms of the
Collateral Documents and exercise any other rights which it has
by law or contract (which rights shall be cumulative in nature).
Section 13.2. Waivers. Except as otherwise provided for in
this Agreement and by applicable law, the Borrower and the
Guarantor waive (i) presentment, demand and protest and notice of
presentment, dishonor, notice of intent to accelerate, notice of
acceleration, protest, default, nonpayment, maturity, release,
compromise, settlement, extension or renewal of any or all
commercial paper, accounts, contract rights, documents,
instruments, chattel paper and guaranties at any time held by the
Bank on which the Borrower or the Guarantor may in any way be
liable and hereby ratify and confirm whatever the Bank may do in
this regard, (ii) all rights to notice and a hearing prior to the
Bank's taking possession or control of, or to the Bank's replevy,
attachment or levy upon, the Collateral or any bond or security
which might be required by any court prior to allowing the Bank
to exercise any of its remedies, and (iii) the benefit of all
valuation, appraisal and exemption laws. The Borrower and the
Guarantor acknowledge that they have been advised by counsel of
their choice with respect to this Agreement, the other Collateral
Documents, and the transactions evidenced by this Agreement and
other Collateral Documents.
ARTICLE XIV
MISCELLANEOUS
Section 14.1. No Waiver; Modification in Writing. No
failure or delay on the part of the Bank in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy hereunder. No
amendment, modification or waiver of any provision of this
Agreement or of the Notes, nor consent to any departure by the
Borrower or the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing signed by or on
behalf of the Bank and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on the Borrower
or the Guarantor in any case shall entitle the Borrower or the
Guarantor to any other or further notice or demand in similar or
other circumstances.
Section 14.2. Payment on Non-Business Day. Whenever any
payment to be made hereunder or on account of any of the Notes
shall be scheduled to become due on a day which is not a Business
Day, such payment may be made on the next succeeding Business
Day, and such extension of time shall in such case be included in
computing interest and fees payable hereunder or on account of
the Notes.
Section 14.3. Addresses for Notices. All notices and
communications provided for hereunder shall be in writing and,
shall be mailed, by certified mail, return receipt requested, or
delivered as set forth below unless any person named below shall
notify the others in writing of another address, in which case
notices and communications shall be mailed, by certified mail,
return receipt requested, or delivered to such other address.
If to the Bank:
Hibernia National the Bank
P. O. Xxx 00000
Xxx Xxxxxxx, XX 00000
Attn: Energy and Maritime Department
If to the Borrower:
Omni Energy Services Corp.
0000 X.X. Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
If to Omni Marine:
Omni Marine & Supply, Inc.
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
If to Aviation:
American Aviation L.L.C.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Section 14.4. Fees and Expenses. The Borrower agrees to
pay all fees, costs and expenses of the Bank in connection with
the preparation, execution and delivery of this Agreement, and
all Related Documents to be executed in connection herewith and
subsequent modifications or amendments to any of the foregoing,
including without limitation, the reasonable fees and
disbursements of counsel to the Bank, and to pay all costs and
expenses of the Bank in connection with the enforcement of this
Agreement, the Notes or the other Related Documents, including
reasonable legal fees and disbursements arising in connection
therewith. The Borrower also agrees to pay, and to save the Bank
harmless from any delay in paying stamp and other similar taxes,
if any, which may be payable or determined to be payable in
connection with the execution and delivery of this Agreement, the
Notes, the other Related Documents, or any modification thereof.
Section 14.5. Security Interest and Right of Set-off. The
Bank shall have a continuing security interest in, as well as the
right to set-off the obligations of the Borrower hereunder
against, all funds which the Borrower may maintain on deposit
with the Bank (with the exception of funds deposited in the
Borrower's accounts in trust for third parties or funds deposited
in pension accounts, IRA's, Xxxxx accounts and All Saver
Certificates), and the Bank shall have a lien upon and a security
interest in all property of the Borrower in the Bank's possession
or control which shall secure the Indebtedness of the Borrower.
Section 14.6. Waiver of Marshaling. The Borrower and the
Guarantor shall not at any time hereafter assert any right under
any law pertaining to marshaling (whether of assets or liens) and
the Borrower and the Guarantor expressly agree that the Bank may
execute or foreclose upon the Collateral in such order and manner
as the Bank, in its sole discretion, deems appropriate.
Section 14.7. Governing Law. This Agreement and the Notes
shall be deemed to be contracts made under the laws of the State
of Louisiana and for all purposes shall be construed in
accordance with the laws of said State.
Section 14.8. Consent to Loan Participation. The Borrower
and the Guarantor agree and consent to the Bank's sale or
transfer, whether now or later, of one or more participation
interests in the Indebtedness of the Borrower arising pursuant to
this Agreement to one or more purchasers, whether related or
unrelated to the Bank. The Bank may provide, without any
limitation whatsoever, to any one or more purchasers, or
potential purchasers, any information or knowledge the Bank may
have about the Borrower and the Guarantor or about any other
matter relating to such Indebtedness, and the Borrower and the
Guarantor hereby waive any rights to privacy they may have with
respect to such matters. The Borrower and the Guarantor also
agree that the purchasers of any such participation interest will
be considered as the absolute owners of such interests in such
Indebtedness.
Section 14.9. WAIVER OF JURY TRIAL; SUBMISSION TO
JURISDICTION. (a) THE BORROWER, THE GUARANTOR, AND THE BANK
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH
THE BORROWER, THE GUARANTOR, AND THE BANK MAY BE PARTIES, ARISING
OUT OF OR IN ANY WAY PERTAINING TO (i) THE NOTES, (ii) THIS
AGREEMENT, (iii) THE COLLATERAL DOCUMENTS OR (iv) THE COLLATERAL.
IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER
OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH
ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE
NOT PARTIES TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY THE BORROWER, THE GUARANTOR,
AND THE BANK, AND THE BORROWER, THE GUARANTOR, AND THE BANK
HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE
BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY
JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THE
BORROWER, THE GUARANTOR, AND THE BANK EACH FURTHER REPRESENT THAT
IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED
OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.
(b) THE BORROWER AND THE GUARANTOR HEREBY IRREVOCABLY
CONSENT TO THE JURISDICTION OF THE STATE COURTS OF LOUISIANA AND
THE FEDERAL COURTS IN LOUISIANA AND AGREE THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR BROUGHT TO ENFORCE THE PROVISIONS OF
THE NOTES, THIS AGREEMENT AND/OR THE COLLATERAL DOCUMENTS MAY BE
BROUGHT IN ANY COURT HAVING SUBJECT MATTER JURISDICTION.
Section 14.10. Severability. If a court of competent
jurisdiction finds any provision of this Agreement to be invalid
or unenforceable as to any person or circumstance, such finding
shall not render that provision invalid or unenforceable as to
any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within
the limits of enforceability or validity; however, if the
offending provision cannot be so modified, it shall be stricken
and all other provisions of this Agreement in all other respects
shall remain valid and enforceable.
Section 14.11. Headings. Article and Section headings used
in this Agreement are for convenience only and shall not affect
the construction of this Agreement.
[The remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
OMNI ENERGY SERVICES CORP.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
AMERICAN AVIATION L.L.C.
By:
OMNI ENERGY SERVICES CORP.,
as Sole Member
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
OMNI MARINE & SUPPLY, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
