FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is dated
and effective as of September 29, 1999 (the "Fifth Amendment"), among OMNI
ENERGY SERVICES CORP., a Louisiana corporation (the "Borrower"), AMERICAN
AVIATION L.L.C., a Missouri limited liability company ("Aviation"), OMNI
ENERGY SERVICES CANADA CORP., an Alberta, Canada corporation formerly
known as Hamilton Drill Tech Inc. ("Omni Canada"), OMNI ENERGY SERVICES-
ALASKA, INC., an Alaska corporation ("Omni Alaska"), and HIBERNIA NATIONAL
BANK, a national banking association (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower, Aviation, Omni Marine & Supply, Inc., and the
Bank have heretofore entered into an Amended and Restated Loan Agreement
dated as of January 20, 1998, as amended by First Amendment thereto dated
as of March 31, 1998, as amended by Second Amendment thereto dated as of
July 31, 1998, as amended by Third Amendment thereto dated as of October
30, 1998, and as amended by Fourth Amendment thereto dated as of March 29,
1999 (as so amended, the "Loan Agreement"), pursuant to which the Bank
established in favor of the Borrower certain credit facilities consisting
of Acquisition Loans, Revolving Loans, Bridge Loans, and a Term Loan;
WHEREAS, subsequent to the execution of the Loan Agreement, Omni
Canada and Omni Alaska became wholly-owned subsidiaries of the Borrower,
and Omni Marine & Supply, Inc., a Louisiana corporation, was merged into
the Borrower;
WHEREAS, the Loans by the Bank to the Borrower are guaranteed, IN
SOLIDO, by Aviation, Omni Canada, and Omni Alaska as the Guarantors;
WHEREAS, the indebtedness evidenced by the Bridge Note has been paid;
WHEREAS, on July 12, 1999, the Borrower and the Bank, with the consent
of the Guarantors, agreed to reduce and did reduce the Revolving Loan
Commitment from $7,000,000.00 to $6,000,000.00;
WHEREAS, the Borrower is currently in default under the Loan Agreement
because of Borrower's failure (i) to make scheduled payments, (ii) to meet
financial covenant requirements, and (iii) to remit waiver fees to the
Bank;
WHEREAS, the Borrower, with the consent of the Guarantors, has
requested that the Bank (i) extend the scheduled July 31, 1999 principal
payments on all Loans to October 31, 1999 and (ii) to allow the Borrower
until October 31, 1999 to remedy all financial covenant violations; and
WHEREAS, subject to the terms and conditions of the Loan Agreement, as
amended by this Fifth Amendment, the Bank is willing to honor the
Borrower's requests.
NOW, THEREFORE, THE PARTIES HERETO, IN CONSIDERATION OF THE MUTUAL
COVENANTS HEREINAFTER SET FORTH AND INTENDING TO BE LEGALLY BOUND HEREBY,
AGREE AS FOLLOWS:
1. DEFINED TERMS. Capitalized terms used herein which are defined
in the Loan Agreement are used herein with such defined meanings, except as
may be expressly set forth in this Fifth Amendment.
2. DEFINED TERMS REVISION.
(a) The definition of the term "Acquisition Note" appearing in
Section 1.1 on page 2 of the Loan Agreement, as modified by the Fourth
Amendment, is hereby deleted and restated as follows:
"ACQUISITION NOTE" shall mean that certain
promissory note more fully described in paragraph
4(a) of the Fifth Amendment, together with any and
all extensions, renewals, modifications, and
substitutions therefor.
(b) The definition of the term "Borrowing Base Amount" appearing
in paragraph 2(a) of the Third Amendment, as modified by the Fourth
Amendment, is hereby deleted and restated as follows:
"BORROWING BASE AMOUNT" shall mean: 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)
$6,000,000.00 or (ii) the sum of (x) the amount of
Qualified Receivables at such time and (y)
advances, using reasonable lending discretion and
up to the sublimit (in the aggregate) of
$3,000,000.00, to finance the Borrower's
acquisition of Eligible Parts and Supplies, which
advances are limited to a loan to value ratio of
50%.
(c) The definition of the term "Revolving Loan Commitment"
appearing in Section 1.1 on page 9 of the Loan Agreement, as modified by
the Fourth Amendment, is hereby deleted and restated as follows:
"REVOLVING LOAN COMMITMENT" shall mean 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, as
amended by the Fifth Amendment.
(d) The definition of the term "Revolving Note" appearing in
Section 1.1 on page 9 of the Loan Agreement, as modified by the Fourth
Amendment, is hereby deleted and restated as follows:
"REVOLVING NOTE" shall mean that certain
promissory note more fully described in paragraph
3(a) of the Fifth Amendment, together with any and
all extensions, renewals, modifications, and
substitutions therefor.
(e) The definition of the term "Term Note" appearing in Section
1.1 of the Loan Agreement is hereby deleted and restated as follows:
"TERM NOTE" shall mean that certain promissory
note more fully described in paragraph 5 of the
Fifth Amendment, together with any and all
extensions, renewals, modifications, and
substitutions therefor.
(f) The following definition is hereby added to the Loan
Agreement:
"FIFTH AMENDMENT" shall mean that certain Fifth
Amendment to Amended and Restated Loan Agreement
dated as of September 29, 1999 by and among
the Borrower, Aviation, Omni Canada, Omni Alaska,
and the Bank.
3. REVISIONS TO ARTICLE II (REVOLVING LOANS) OF THE LOAN AGREEMENT.
Subject to the terms and conditions of the Loan Agreement, and as amended
by this Fifth Amendment, the parties agree as follows:
(a) The term "Revolving Note" in Section 2.2.1 of the Loan
Agreement, as modified by the Fourth Amendment, shall henceforth mean that
certain master promissory note of the Borrower dated September
, 1999 in the maximum aggregate principal amount of
$6,000,000.00, payable to the order of the Lender on demand, or if no
demand is made, on the Termination Date, and bearing interest, effective
September 13, 1999, at the Base Rate plus 3% (the "Revolving Note"). The
parties acknowledge that the Revolving Note constitutes a reduction of the
principal amount available for Revolving Loans and a renewal and
refinancing of the Revolving Note dated March 29, 1999, by the Borrower in
the maximum aggregate principal amount of $7,000,000.00.
(b) Notwithstanding any provision in Section 2.2.4 of the Loan
Agreement (or any other provision of the Loan Agreement) to the contrary,
the Borrower agrees and understands that commencing September 13, 1999,
interest payments under the Revolving Note shall be due and payable weekly
on Monday of each week.
(c) The reference in line 3 of Section 2.2.8 of the Loan
Agreement, as modified by the Fourth Amendment, to $7,000,000.00 shall
henceforth be deemed a reference to $6,000,000.00.
4. REVISIONS TO ARTICLE III (ACQUISITION LOANS) OF THE LOAN
AGREEMENT. Subject to the terms and conditions of the Loan Agreement, as
amended by this Fifth Amendment, the parties agree as follows:
(a) Section 3.2.1 of the Loan Agreement, as modified by the
Fourth Amendment, is hereby deleted and restated as follows:
SECTION 3.2.1. ACQUISITION NOTE. Subject to the
terms and conditions of this Agreement, as amended
by the Fifth Amendment, the term "Acquisition
Note" shall henceforth mean that certain
promissory note by the Borrower in the principal
amount of $2,948,658.96 (the "Acquisition Note"),
dated September 29, 1999, payable to the order of
the Bank, with a final maturity of January 20,
2000, and bearing interest at the Base Rate plus
3% (effective September 13, 1999).
The parties acknowledge that the Acquisition Note, as described in the
indented paragraph above, evidences a renewal and refinancing as a term
loan of the "Acquisition Note" dated March 29, 1999 by the Borrower in the
principal amount of $7,937,889.00.
(b) Notwithstanding any provision in Section 3.2.4 of the Loan
Agreement (or any other provision of the Loan Agreement) to the contrary,
the Borrower agrees and understands that commencing September 13, 1999,
interest payments under the Acquisition Note shall be due and payable
weekly on Monday of each week.
5. REVISION TO ARTICLE IV (TERM LOAN) OF THE LOAN AGREEMENT:
Section 4.2 of the Loan Agreement, as modified by the Fourth Amendment, is
hereby amended to reflect that the Term Note described therein is now
evidenced by that certain renewal promissory note dated September
, 1999 by
the Borrower in the principal amount of $6,067,452.13, payable to the order
of the Bank, and bearing interest at the Base Rate plus 3% (effective
September 13, 1999). In addition, notwithstanding any provision in Section
4.2 of the Loan Agreement (or any other provision of the Loan Agreement) to
the contrary, the Borrower agrees and understands that commencing September
13, 1999, interest payments under the Term Note shall be due and payable
weekly on Monday of each week.
6. REVISIONS TO ARTICLE V (FEES) OF THE LOAN AGREEMENT. The
following new Section is hereby added to the Loan Agreement as Section 5.5:
SECTION 5.5. EXTENSION FEE. The Borrower shall
pay to the Bank an extension fee of $112,704.00 on
October 31, 1999.
7. CONFIRMATION OF COLLATERAL DOCUMENTS. All of the liens,
privileges, priorities and equities existing and to exist under and in
accordance with the terms of the Collateral Documents are hereby renewed,
extended and carried forward as security for all of the Loans and all other
debts, obligations and liabilities of the Borrower to the Bank. Further,
the Guarantors hereby confirm their solidary liability for all Loans.
8. CONDITIONS PRECEDENT. The agreements and obligation of the Bank
as set forth in this Fifth Amendment are subject to satisfaction of the
following conditions precedent:
(a) The Borrower shall have executed and delivered to the Bank
this Fifth Amendment, the (renewal) Notes, and all other documents required
by the Loan Agreement, as amended by this Fifth Amendment, and the
Guarantors shall have executed and delivered to the Bank this Fifth
Amendment, and all other documents required by the Loan Agreement, as
amended by this Fifth Amendment, all in form and substance and in such
number of counterparts as may be required by the Bank;
(b) The representations, warranties, and covenants of the
Borrower and the Guarantors as set forth in the Loan Agreement, as amended
by this Fifth Amendment, or in any Related Document furnished to the Bank
in connection herewith, shall be and remain true and correct;
(c) The Bank shall have received a favorable legal opinion of
counsel to the Borrower and the Guarantors, in form, scope and substance
satisfactory to the Bank;
(d) The Bank shall have received certified resolutions of the
Borrower and the Guarantors authorizing the execution of all documents and
instruments contemplated by this Fifth Amendment;
(e) The Bank shall have received an extension fee of
$112,704.00, which fee was due and payable on August 31, 1999.
(f) Except for Events of Default pertaining to Loan payment and
financial covenant violations as addressed in this Fifth Amendment, no
Default or Event of Default shall exist or shall result from renewal of the
Loans as provided for herein;
(g) The Borrower and the Guarantors shall have provided the Bank
with all financial statements, reports and certificates required by the
Loan Agreement, as amended by this Fifth Amendment;
(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 Guarantors, and the Bank's counsel shall have reviewed the foregoing
documents and is satisfied with the validity, due authorization and
enforceability thereof and of all Related Documents;
(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) Except as provided in (f) above, there shall have occurred
no Material Adverse Change;
(k) The Bank's due diligence and review of all financial
information provided by the Borrower and the Guarantors, and the Bank's
field audit of the Borrower's books and records, shall be satisfactory to
the Bank;
(l) The Bank's receipt of a current listing of all senior and
subordinated debt of the Borrower (on a consolidated basis);
(m) The Borrower must maintain insurance acceptable to the Bank,
naming Bank as additional insured and/or loss payee, and deliver to Bank
evidence of such insurance coverages;
(n) Interest payments on all Loans must be paid current and
remain current;
(o) Principal payments on all debt owed by the Borrower (and/or
any of the Guarantors) to The CIT Group/Equipment Financing, Inc. must be
waived and extended through November 15, 1999, in writing by The CIT
Group/Equipment Financing, Inc., and a copy of such waiver and extension
must be furnished to the Bank;
(p) Advantage Capital must make a $900,000.00 subordinated debt
issuance to the Borrower prior to execution of this Fifth Amendment by the
Borrower; and.
(q) Advantage Capital must execute a written subordination
agreement in favor of Bank and The CIT Group/Equipment Financing, Inc.,
whereby Advantage Capital subordinates all present and future indebtedness
owed by Borrower, which agreement must be delivered to, and in form and
substance satisfactory to, Bank.
9. REVISIONS TO ARTICLE XI (AFFIRMATIVE COVENANTS) OF THE LOAN
AGREEMENT.
(a) Section 11.1(f) of the Loan Agreement is hereby deleted and
restated as follows:
(f) on Monday of each week, an aging of each the Borrower's
and the Guarantor's Receivables and accounts payable,
together with a certificate executed by the President
of the Borrower and the Guarantor, identifying the
amount of Qualified Receivables of the Borrower as of
the end of the previous week, in such form and
containing such representations and warranties
regarding the Receivables as the Bank may reasonably
require,
(b) The parties to this Fifth Amendment acknowledge the
Borrower's failure to comply with the financial covenants set forth in
Section 11.9(a) through (e) of the Loan Agreement. Subject to the terms
and conditions of this Fifth Amendment, the Bank agrees to forbear until
October 31, 1999, in exercising its rights to declare an Event of Default
based on the Borrower's failure to comply with said financial covenants.
The parties further acknowledge that the Borrower has until October 31,
1999 to comply with the said financial covenant requirements. The
foregoing forbearance is a one-time forbearance by the Bank limited to the
period ending October 31, 1999, and is not intended and shall not be
construed as a waiver by the Bank.
(c) The following new covenant is added to the Loan Agreement
as Section 11.26:
SECTION 11.26. BI-MONTHLY CASH FORECASTS. The
Borrower agrees that it shall furnish the Bank on
a bi-monthly basis (to be delivered to Bank every
other Monday), a cash forecast with a detailed
projection of cash receipts and disbursements.
(d) The following new covenant is added to the Loan Agreement
as Section 11.27:
SECTION 11.27. ADDITIONAL SUBORDINATED DEBT.
Additional subordinated debt of not less than
$5,000,000.00 must be issued or committed to the
Borrower prior to October 31, 1999, and written
evidence of such issuance or commitment must be
delivered to the Bank prior to October 31, 1999.
Notwithstanding any provision in the Loan
Agreement to the contrary, the Borrower and the
Guarantors agree and understand that a breach or
violation of the foregoing covenant and agreement
shall constitute an Event of Default under this
Agreement, as amended by the Fifth Amendment, and
shall entitle the Bank to immediately accelerate
and demand payment of all Loans.
10. ACKNOWLEDGMENT PERTAINING TO JULY 31, 1999 PRINCIPAL PAYMENTS.
The parties agree and acknowledge that pursuant to this Fifth Amendment
the loan payments of principal due on July 31, 1999 shall be included in
the payments due on October 31, 1999. The total amount of principal due
on October 31, 1999 is $1,579,298.00
11. REPRESENTATION. On and as of the date hereof, and after giving
effect to this Fifth Amendment, the Borrower and the Guarantors confirm,
reaffirm and restate the representations and warranties set forth in the
Loan Agreement and the Collateral Documents; provided, that each reference
to the Loan Agreement herein shall be deemed to include the Loan Agreement
as amended by this Fifth Amendment.
12. PAYMENT OF EXPENSES. The Borrower agrees to pay or reimburse the
Bank for all legal fees and expenses of counsel to the Bank in connection
with the transactions contemplated by this Fifth Amendment.
13. WAIVER OF DEFENSES; RELEASE OF LIABILITIES. THE BORROWER AND THE
GUARANTORS ACKNOWLEDGE THAT THIS FIFTH AMENDMENT CONTAINS A RENEWAL OF THE
LOANS, AN EXTENSION OF PAYMENTS, AND A FORBEARANCE BY THE BANK. IN
CONSIDERATION OF THE BANK'S EXECUTION OF THIS FIFTH AMENDMENT, THE BORROWER
AND THE GUARANTORS DO HEREBY IRREVOCABLY WAIVE ANY AND ALL CLAIMS, CAUSES
OF ACTION, AND/OR DEFENSES TO PAYMENT ON ANY INDEBTEDNESS OWED BY ANY OF
THEM TO THE BANK THAT MAY EXIST AS OF THE DATE OF EXECUTION OF THIS FIFTH
AMENDMENT. FURTHER, BORROWER AND THE GUARANTORS HEREBY AGREE THAT ALL
DISPUTES AND CLAIMS WHATSOEVER OF ANY KIND OR NATURE WHICH BORROWER AND/OR
ANY OF THE GUARANTORS PRESENTLY HAS OR MAY HAVE AGAINST BANK, WHETHER
PRESENTLY KNOWN OR UNKNOWN, WHICH BORROWER AND/OR ANY OF THE GUARANTORS
COULD HAVE ASSERTED AGAINST BANK, ARE FULLY AND FINALLY RELEASED,
COMPROMISED AND SETTLED. BORROWER AND THE GUARANTORS, INDIVIDUALLY AND FOR
THEMSELVES, THEIR, SUCCESSORS IN INTEREST AND ASSIGNS, DO HEREBY EXPRESSLY
RELEASE AND FOREVER RELIEVE, DISCHARGE AND GRANT FULL ACQUITTANCE TO BANK
FOR AND FROM ANY AND ALL CAUSES OF ACTION, SUITS, CLAIMS, DEBTS,
OBLIGATIONS OR LIABILITIES OF ANY NATURE WHATSOEVER, KNOWN OR UNKNOWN,
ALLEGED OR NOT ALLEGED, WHICH BORROWER AND/OR ANY OF THE GUARANTORS HAS OR
MAY HAVE AGAINST BANK, ITS AGENTS, OFFICERS, EMPLOYEES, DIRECTORS AND
SHAREHOLDERS AS OF THE DATE HEREOF. THIS WAIVER AND RELEASE SHALL BE
CONSTRUED TO HAVE THE BROADEST POSSIBLE SCOPE.
14. AMENDMENTS. THE LOAN AGREEMENT AND THIS FIFTH AMENDMENT ARE
CREDIT OR LOAN AGREEMENTS AS DESCRIBED IN LA. R.S. 6:1121, ET SEQ.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE BANK, THE BORROWER, OMNI ALASKA,
AVIATION, AND OMNI CANADA. THE LOAN AGREEMENT, AS AMENDED BY THIS FIFTH
AMENDMENT, SETS FORTH THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR WRITTEN AND ORAL
UNDERSTANDINGS BETWEEN THE BORROWER, AVIATION, OMNI ALASKA, OMNI CANADA AND
THE BANK, WITH RESPECT TO THE MATTERS HEREIN SET FORTH. THE LOAN
AGREEMENT, AS AMENDED BY THIS FIFTH AMENDMENT, MAY NOT BE MODIFIED OR
AMENDED EXCEPT BY A WRITING SIGNED AND DELIVERED BY THE BORROWER, AVIATION,
OMNI ALASKA, OMNI CANADA AND THE BANK.
15. GOVERNING LAW: COUNTERPARTS. This Fifth Amendment shall be
governed by and construed in accordance with the laws of the State of
Louisiana. This Fifth Amendment may be executed in any number of
counterparts, all of which counterparts, when taken together, shall
constitute one and the same instrument.
16. CONTINUED EFFECT. Except as expressly modified herein, the Loan
Agreement shall continue in full force and effect. The Loan Agreement as
amended by this Fifth Amendment is hereby ratified and confirmed by the
parties hereto.
(Remainder of page intentionally left blank)
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be executed and delivered as of the date hereinabove provided
by the authorized officers each hereunto duly authorized.
OMNI ENERGY SERVICES CORP.
By:_____________________________________
Name: Xxxx X. Xxxxxxxxx
Title: President, Chief Executive
Officer
AMERICAN AVIATION L.L.C.
BY: OMNI ENERGY SERVICES CORP.,
AS SOLE MEMBER
By:_____________________________________
Name: Xxxx X. Xxxxxxxxx
Title: President, Chief Executive Officer
OMNI ENERGY SERVICES CANADA CORP.
(F/K/A XXXXXXXX DRILL TECH INC.)
By:_____________________________________
Name: ____________________________
Title: ___________________________
OMNI ENERGY SERVICES- ALASKA, INC.
By:_____________________________________
Name:______________________________
Title:_____________________________
HIBERNIA NATIONAL BANK
By:_____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
