EXHIBIT 4.4
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN is dated as of August
6, 1997 (this "Amendment"), between OMNI GEOPHYSICAL, L.L.C., a Louisiana
limited liability company ("Borrower") and HIBERNIA NATIONAL BANK, a national
banking association ("Bank").
W I T N E S S E T H:
WHEREAS, Borrower and Bank have heretofore entered into an Amended and
Restated Loan Agreement dated as of June 13, 1997 (the "Loan Agreement"),
pursuant to which Bank established in favor of Borrower certain credit
facilities consisting of a revolving line of credit and a construction loan
convertible to a term loan; and
WHEREAS, Borrower and Bank desire to amend the Loan Agreement in certain
respects as more fully set forth herein.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants hereinafter set forth and intending to be legally bound hereby, agrees
as follows:
1. DEFINED TERMS. Capitalized terms used herein which are defined in
the Loan Agreement are used herein with such defined meanings.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) The definition of the term "Qualified Receivables" contained in
Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"QUALIFIED RECEIVABLES" shall mean eighty percent (80%) of the Receivables
of Borrower and of its wholly owned Subsidiaries 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 Bank, (b) arose in the ordinary course of business
of Borrower and/or its wholly owned Subsidiaries, (c) arose from the sale
of goods or performance of services by Borrower and/or its wholly owned
Subsidiaries, (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 Borrower or of any of its wholly
owned Subsidiaries or an officer or director of Borrower or an officer or
director of an affiliate of Borrower (h) are not payable by the United
States of America or any agency or department thereof (unless such
Receivable has been assigned to Bank pursuant to a properly perfected
assignment under the Federal Assignment of Claims Act, 31 U.S.C.
(S)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 Bank), (k) are not Receivables due by a Person from
whom over 50% of its entire accounts receivable balance with Borrower 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 proceeds of a
Receivable, (o) are not not that portion of the Receivables due by a single
Person which which are in excess of 25% (but in no event in excess of 50%)
of all of the Receivables due to Borrower and its wholly owned Subsidiaries
where such Person is not rated or is rated (by a national rating agency
acceptable to 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 of all of the
Receivables of Borrower and its wholly owned Subsidiares where such Person
is rated (by a national rating agency acceptable to Bank) BBB- or bettter;,
and (p) 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 Borrower's 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).
(b) The subparagraph entitled "Other Defaults in Favor of Bank" in
Section 12.1 of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
OTHER DEFAULTS IN FAVOR OF BANK. Should Borrower default under any other
loan, extension of credit, security agreement, or other obligation in favor
of Bank (including specifically but without limitation, under any
obligation to the Bank pursuant to the terms of that certain Loan Agreement
dated as of August 6, 1997, by and among Borrower, American Aviation
L.L.C., and Bank, as the same may be amended from time to time), and fail
to cure same in accordance with any applicable cure periods.
3. REPRESENTATION: NO DEFAULT. On and as of the effective date
hereof, and after giving effect to this Amendment, Borrower (a) confirms,
reaffirms and restates the representations and warranties set forth in the Loan
Agreement and the Collateral Documents; provided, that each reference to the
Loan Agreement therein shall be deemed included the Loan Agreement as amended by
this Amendment; and (b) represents that no Default or Event of Default has
occurred and is continuing.
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4. 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 Borrower to Bank.
5. PAYMENT OF EXPENSES. Borrower agrees to pay or reimburse Bank for
all legal fees and expenses of counsel to Bank in connection with the
transactions contemplated by this Amendment.
6. GOVERNING LAW: COUNTERPARTS. The Amendment shall be governed by
and construed in accordance with the laws of the State of Louisiana. This
Amendment may be executed in any number of counterparts, all of which
counterparts, when taken together, shall constitute one and the same instrument.
7. CONTINUED EFFECT. Except as expressly modified herein, the Loan
Agreement shall continue in full force and effect. The Loan Agreement as
amended herein is hereby ratified and confirmed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date hereinabove provided by the authorized
officers each hereunto duly authorized.
OMNI GEOPHYSICAL, L.L.C.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Manager
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Assistant Vice President
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