EXHIBIT 4.5
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is dated and
effective as of September 30, 1997 (the "Second Amendment"), between OMNI
GEOPHYSICAL, L.L.C., a Louisiana limited liability company ("Omni"), and
AMERICAN AVIATION L.L.C., a Missouri limited liability company ("Aviation"), and
HIBERNIA NATIONAL BANK, a national banking association ("Bank").
W I T N E S S E T H:
WHEREAS, Omni and Bank have heretofore entered into an Amended and
Restated Loan Agreement dated as of June 13, 1997, as amended by First Amendment
thereto dated as of August 6, 1997 (the "Loan Agreement"), pursuant to which
Bank established in favor of Omni certain credit facilities consisting of a
revolving line of credit and a construction loan convertible to a term loan;
WHEREAS, Omni and Aviation have requested that Bank make a temporary term
loan to Omni and Aviation, as in solido co-borrowers, in a principal amount up
to $10,000,000.00;
WHEREAS, subject to the terms and conditions of this Second Amendment,
Bank is willing to make the temporary term loan; and
WHEREAS, Omni, Aviation, and Bank desire to amend the Loan Agreement in
certain respects as more fully set forth herein to evidence the terms and
conditions applicable to the temporary term loan in a principal amount up to
$10,000,000.00.
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.
2. DEFINED TERMS REVISION.
(a) "Bridge Loan" shall have the meaning assigned to that term in
paragraph 3(a) of this Second Amendment.
(b) "Bridge Note" shall have the meaning assigned to that term in
paragraph 3(b) of this Second Amendment.
(c) The definition of the term "Loans" in Section 1.1 of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:
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"Loans" shall mean, collectively, the Revolving Loan, the Construction
Loan, and the Bridge Loan.
(d) The definition of the term "Notes" in Section 1.1 of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:
"Notes" shall mean, collectively, the Revolving Note, the Construction
Note, the Term Note, and the Bridge 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.
3. THE BRIDGE LOAN COMMITMENT.
(a) BRIDGE LOAN. Subject to the terms and conditions of this Second
Amendment, Bank agrees to make a temporary term loan to Omni and Aviation, as in
solido co-borrowers, in a principal amount up to $10,000,000.00 (the "Bridge
Loan"). The proceeds of the Bridge Loan shall be used by Omni solely for
distributions to preferred shareholders/members of Omni and distributions of
earned income to members of Omni.
(b) BRIDGE NOTE. The indebtedness of Omni and Aviation to Bank under
the Bridge Loan shall be evidenced by a promissory note made by Omni and
Aviation (the "Bridge Note"), dated of even date herewith, payable to the order
of the Bank in the principal sum of $10,000,000.00, and bearing interest at the
LIBOR Rate plus 1.00%. The indebtedness of Omni and Aviation under the Bridge
Note shall be payable as follows: interest shall be payable monthly and at the
maturity of the Bridge Note, as therein provided; and principal and accrued
unpaid interest shall be due and payable on December 29, 1997. Upon the
occurrence of an Event of Default or in the event the indebtedness evidenced by
the Bridge Note is not paid in full on or before December 29, 1997, then Bank
has the right prospectively to adjust and fix the interest rate under the Bridge
Note until it is paid in full as follows: the LIBOR Rate plus 5.00% per annum.
(c) FEE. The nonrefundable commitment fee payable by the Omni and
Aviation to the Bank for the Bridge Loan shall be (i) $50,000.00 payable by Omni
and Aviation on or before its execution of this Second Amendment and (ii) in the
event Omni completes an initial public offering of its stock, Bank shall have an
option to acquire common stock of Omni having an aggregate value of $50,000.00
at the purchase price per share at which Omni's common stock is sold to the
public by the underwriter at the initial public offering.
4. REPRESENTATION: NO DEFAULT. On and as of the effective date
hereof, and after giving effect to this Second Amendment, Omni 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 herein shall be deemed to include the Loan Agreement as amended
by this Second Amendment. Omni and Aviation also represent and warrant that no
Default or Event of Default has occurred and is continuing under the Loan
Agreement.
5. COLLATERAL DOCUMENTS: CONFIRMATION; REVISION.
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(a) CONFIRMATION. 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 Omni and Aviation to Bank.
(b) REVISION. Omni and Aviation hereby acknowledge that the
Collateral Documents described in Section 7.1 of the Loan Agreement shall
continue to secure the Loans. In addition, the Bridge Loan also shall be
secured by the following:
(i) A first priority security interest in the account of Omni at
Bank in which the proceeds from the Bridge Loan will be
deposited, and a first priority security interest granted by
each member of Omni and any other Person receiving a
distribution from Omni with proceeds from the Bridge Loan,
in favor of the Bank, affecting all cash and securities
accounts maintained by each member and such other Person at
Bank in which a distribution from Omni with proceeds from
the Bridge Loan has been deposited; and
(ii) Limited Continuing Guaranty by each member of the Omni and
any other Person receiving a distribution from Omni with
proceeds from the Bridge Loan, in favor of the Bank, whereby
each member and such other Person shall guaranty in solido
with Omni and Aviation the repayment of the Bridge Loan up
to the amount of the cash distribution received by said
member or Person with proceeds from the Bridge Loan.
6. CONDITIONS PRECEDENT TO BRIDGE LOAN. The obligation of the Bank to
make and fund the Bridge Loan shall be subject to the satisfaction of the
following conditions precedent:
(a) Omni and Aviation shall have executed and delivered to the Bank
this Second Amendment and the Bridge Note, and Omni shall have
executed and delivered to the Bank the Acknowledgment of Multiple
Indebtedness Mortgage and Third Amendment to Security Agreement;
all in form and substance satisfactory to the Bank;
(b) Bank shall have received certified resolutions signed by all
members of the Omni authorizing the transactions contemplated by
this Second Amendment, in form and substance satisfactory to the
Bank;
(c) The members of Omni shall have executed and delivered to the Bank
the Limited Continuing Guaranty agreements as described in
Paragraphs 5(b)(ii) above, all in form and substance satisfactory
to the Bank;
(d) The members of the Omni and any other Person receiving a
distribution from Omni with proceeds from the Bridge Loan, shall
have executed the security agreements and UCC financing
statements that are necessary to create a first
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priority security interest in the cash accounts mentioned in
Paragraph 5(b)(i) above, all in form and substance satisfactory
to the Bank;
(e) Bank shall have received a favorable legal opinion of counsel to
Omni and Aviation, in form, scope, and substance satisfactory to
the Bank, and a satisfactory review by in house counsel for Bank
of all preference and consideration issues;
(f) Bank shall have received the following executed documents:
Agreement by The CIT Group/Equipment Financing, Inc. that the
indebtedness of Omni and Aviation under this Second Amendment is
subject to the Subordination Agreement dated July 19, 1996 by
Omni, Omni Geophysical Corporation, and Bank, as amended; and
Fourth Amendment to Subordination Agreement by and among Omni,
Omni Geophysical Corporation, and Bank;
(g) There shall have occurred no Material Adverse Change;
(h) No Default or Event of Default shall exist or shall result from
the making of the Bridge Loan;
(i) Bank shall have received the $50,000.00 fee referenced in
Paragraph 3(c) above and Bank shall have received any necessary
documentation to evidence its option to acquire stock as
described in clause (ii) of Paragraph 3(c) above;
(j) Bank shall have received and completed a satisfactory review of
the financial statements for each member of Omni;
(k) Bank shall have received certified resolutions from American
Aviation Incorporated, Advantage Capital Corporation, Advantage
Capital Management Corporation, Advantage Financial Company,
L.L.C., and Advantage Capital Advisors, L.L.C., all in form and
substance satisfactory to the Bank and its counsel;
(l) Bank shall have received an executed commitment letter by Omni
and Aviation in favor of the Bank relating to the post initial
public offering credit facilities of $25,000,000.00.
7. AFFIRMATIVE AND NEGATIVE COVENANTS REVISION. To the extent Sections
10.1, 10.10, 11.6, and 11.7 of the Loan Agreement conflict with the provisions
contained in Sections 8.1, 8.10, 9.6, and 9.7 of that certain Loan Agreement
dated as of August 6, 1997 by and among Omni, Aviation and Bank (the
"Omni/American Loan Agreement"), then Sections 8.1, 8.10, 9.6, and 9.7 of the
Omni/American Loan Agreement shall control.
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8. PAYMENT OF EXPENSES. Omni and Aviation agree to pay or reimburse
Bank for all legal fees and expenses of counsel to Bank in connection with the
transactions contemplated by this Second Amendment.
9. WAIVER OF DEFENSES. In consideration of the Bank's execution of
this Second Amendment, Omni and Aviation do hereby irrevocably waive any and all
claims and/or defenses to payment on any indebtedness owed by either of them to
the Bank that may exist as of the date of execution of this Second Amendment.
10. AMENDMENTS. THE LOAN AGREEMENT AND THIS SECOND AMENDMENT ARE CREDIT
OR LOAN AGREEMENTS AS DESCRIBED IN LA. R.S. 6:(S)1121, ET SEQ. THERE ARE NO
ORAL AGREEMENTS BETWEEN THE BANK, OMNI AND AVIATION. THE LOAN AGREEMENT, AS
AMENDED BY THIS SECOND 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 OMNI, AVIATION AND THE BANK, WITH RESPECT TO THE
MATTERS HEREIN SET FORTH. THE LOAN AGREEMENT, AS AMENDED BY THIS SECOND
AMENDMENT, MAY NOT BE MODIFIED OR AMENDED EXCEPT BY A WRITING SIGNED AND
DELIVERED BY OMNI, AVIATION, AND THE BANK.
11. GOVERNING LAW: COUNTERPARTS. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of Louisiana.
This Second Amendment may be executed in any number of counterparts, all of
which counterparts, when taken together, shall constitute one and the same
instrument.
12. 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 Second 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/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, CFO
AMERICAN AVIATION L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, CFO
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Assistant Vice President
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